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CREDIT AGREEMENT
Dated as of __________ __, 2002,
Among
GPC CAPITAL CORP. II
(to be renamed Xxxxxx Packaging Company Inc.),
XXXXXX PACKAGING COMPANY, L.P.,
GPC CAPITAL CORP. I,
THE LENDERS NAMED HEREIN,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent,
XXXXXXX XXXXX XXXXXX INC.,
as Syndication Agent,
and
DEUTSCHE BANK SECURITIES INC.,
as Sole Lead Arranger
and
Sole Book Runner
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TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS..............................................................................................2
SECTION 1.01. Defined Terms.............................................................................2
SECTION 1.02. Terms Generally..........................................................................31
ARTICLE II
THE CREDITS.............................................................................................31
SECTION 2.01. Commitments..............................................................................31
SECTION 2.02. Loans....................................................................................34
SECTION 2.03. Borrowing Procedure......................................................................36
SECTION 2.04. Evidence of Debt; Repayment of Loans.....................................................36
SECTION 2.05. Fees.....................................................................................37
SECTION 2.06. Interest on Loans........................................................................38
SECTION 2.07. Default Interest.........................................................................39
SECTION 2.08. Alternate Rate of Interest...............................................................39
SECTION 2.09. Termination and Reduction of Commitments.................................................39
SECTION 2.10. Conversion and Continuation of Term Borrowings...........................................40
SECTION 2.11. Repayment of Term Borrowings.............................................................41
SECTION 2.12. Prepayment...............................................................................43
SECTION 2.13. Reserve Requirements; Change in Circumstances............................................45
SECTION 2.14. Change in Legality.......................................................................47
SECTION 2.15. Indemnity................................................................................47
SECTION 2.16. Pro Rata Treatment.......................................................................48
SECTION 2.17. Sharing of Setoffs.......................................................................48
SECTION 2.18. Payments.................................................................................49
SECTION 2.19. Taxes....................................................................................49
SECTION 2.20. Letters of Credit........................................................................52
SECTION 2.21. Replacement of Lenders...................................................................58
ARTICLE III
REPRESENTATIONS AND WARRANTIES..........................................................................58
SECTION 3.01. Organization; Powers.....................................................................58
SECTION 3.02. Authorization............................................................................58
SECTION 3.03. Enforceability...........................................................................59
SECTION 3.04. Governmental Approvals...................................................................59
SECTION 3.05. Financial Statements.....................................................................59
SECTION 3.06. No Material Adverse Change or Material Adverse Effect....................................60
SECTION 3.07. Title to Properties; Possession Under Leases.............................................60
SECTION 3.08. Co-Borrower; Subsidiaries................................................................61
SECTION 3.09. Litigation; Compliance with Laws.........................................................61
SECTION 3.10. Agreements...............................................................................61
SECTION 3.11. Federal Reserve Regulations..............................................................62
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act...............................62
SECTION 3.13. Use of Proceeds..........................................................................62
SECTION 3.14. Tax Returns..............................................................................62
SECTION 3.15. No Material Misstatements................................................................63
SECTION 3.16. Employee Benefit Plans...................................................................63
SECTION 3.17. Environmental Matters....................................................................64
SECTION 3.18. Capitalization of Holdings and the Borrower..............................................64
SECTION 3.19. Security Documents.......................................................................65
SECTION 3.20. Location of Real Property and Leased Premises............................................66
SECTION 3.21. Solvency.................................................................................66
SECTION 3.22. Labor Matters............................................................................66
SECTION 3.23. Insurance................................................................................67
SECTION 3.24. Subordination: Designation of the Loan Documents as
"Designated Senior Indebtedness"; Etc..............................................................67
SECTION 3.25. Legal Names; Organizational Identification Numbers; Jurisdiction
and Type of Organization; Etc......................................................................68
ARTICLE IV
CONDITIONS OF LENDING...................................................................................68
SECTION 4.01. All Credit Events........................................................................68
SECTION 4.02. First Credit Event.......................................................................69
ARTICLE V
AFFIRMATIVE COVENANTS...................................................................................73
SECTION 5.01. Existence; Businesses and Properties.....................................................73
SECTION 5.02. Insurance................................................................................74
SECTION 5.03. Taxes....................................................................................75
SECTION 5.04. Financial Statements, Reports, Etc.......................................................76
SECTION 5.05. Litigation and Other Notices.............................................................77
SECTION 5.06. Employee Benefits........................................................................78
SECTION 5.07. Maintaining Records; Access to Properties and Inspections................................78
SECTION 5.08. Use of Proceeds..........................................................................79
SECTION 5.09. Compliance with Environmental Laws.......................................................79
SECTION 5.10. Preparation of Environmental Reports.....................................................79
SECTION 5.11. Further Assurances; Additional Mortgages; Etc............................................79
SECTION 5.12. Fiscal Year; Accounting..................................................................81
SECTION 5.13. Dividends................................................................................81
SECTION 5.14. Interest Rate Protection Agreements......................................................81
SECTION 5.15. No Other "Designated Senior Indebtedness"................................................81
ARTICLE VI
NEGATIVE COVENANTS......................................................................................81
SECTION 6.01. Indebtedness.............................................................................82
SECTION 6.02. Liens....................................................................................85
SECTION 6.03. Sale and Lease-Back Transactions.........................................................88
SECTION 6.04. Investments, Loans and Advances..........................................................88
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions................................91
SECTION 6.06. Dividends and Distributions..............................................................92
SECTION 6.07. Transactions with Affiliates.............................................................94
SECTION 6.08. Business of Holdings, the Borrower and their Subsidiaries................................95
SECTION 6.09. Limitation on Modifications of Indebtedness; Modifications of Certificate
of Incorporation, By-Laws and Certain Other Agreements; Etc....................................95
SECTION 6.10. Capital Expenditures.....................................................................96
SECTION 6.11. Interest Coverage Ratio..................................................................97
SECTION 6.12. Net Leverage Ratio.......................................................................97
SECTION 6.13. Changes To Legal Names; Organizational Identification Numbers,
Jurisdiction or Type of Organization...........................................................98
ARTICLE VII
EVENTS OF DEFAULT.......................................................................................98
SECTION 7.01. Events of Default........................................................................98
SECTION 7.02. Borrower's Right to Cure................................................................101
ARTICLE VIII
THE AGENTS.............................................................................................102
SECTION 8.01. Appointment.............................................................................102
SECTION 8.02. Nature of Duties........................................................................103
SECTION 8.03. Resignation by the Agents...............................................................104
SECTION 8.04. Each Agent in its Individual Capacity...................................................104
SECTION 8.05. Indemnification.........................................................................104
SECTION 8.06. Lack of Reliance on Agents..............................................................105
ARTICLE IX
MISCELLANEOUS..........................................................................................105
SECTION 9.01. Notices.................................................................................105
SECTION 9.02. Survival of Agreement...................................................................105
SECTION 9.03. Binding Effect..........................................................................106
SECTION 9.04. Successors and Assigns..................................................................106
SECTION 9.05. Expenses; Indemnity.....................................................................108
SECTION 9.06. Right of Setoff.........................................................................110
SECTION 9.07. Applicable Law..........................................................................111
SECTION 9.08. Waivers; Amendment......................................................................111
SECTION 9.09. Interest Rate Limitation................................................................113
SECTION 9.10. Entire Agreement........................................................................113
SECTION 9.11. WAIVER OF JURY TRIAL....................................................................114
SECTION 9.12. Severability............................................................................114
SECTION 9.13. Counterparts............................................................................114
SECTION 9.14. Headings................................................................................114
SECTION 9.15. Jurisdiction; Consent to Service of Process.............................................114
SECTION 9.16. Confidentiality.........................................................................115
SECTION 9.17. Release of Liens and Guarantees.........................................................116
SECTION 9.18. Co-Borrower's Obligations...............................................................116
Exhibits and Schedules
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Borrowing Request
Exhibit C Form of Letter of Credit Request
Exhibit D Form of Mortgage
Exhibit E Form of Parent Guarantee Agreement
Exhibit F Form of Pledge Agreement
Exhibit G Form of Security Agreement
Exhibit H Form of Subsidiary Guarantee Agreement
Exhibit I-1 Form of Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx
Exhibit I-2 Form of Opinion of Xxxxxx, Xxxxx & Bockius
Exhibit J Form of Joinder Agreement
Schedule A Pricing Adjustments
Schedule B Lender Addresses
Schedule 1.01 Existing Letters of Credit
Schedule 2.01 Commitments
Schedule 3.05 Contingent Liabilities
Schedule 3.07(c) Intellectual Property
Schedule 3.07(e) Mortgaged Property Rights
Schedule 3.08 Subsidiaries
Schedule 3.09 Litigation
Schedule 3.14 Taxes
Schedule 3.17 Environmental Matters
Schedule 3.18 Capitalization
Schedule 3.19 Filing Offices
Schedule 3.20 Real Property and Leased Premises
Schedule 3.22 Labor Matters
Schedule 3.23 Insurance
Schedule 3.25 Loan Parties
Schedule 6.01 Indebtedness
Schedule 6.02 Liens
Schedule 6.04 Investments
Schedule 6.07 Transactions with Affiliates
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LIBOR ABR Margin
LIBOR Margin Margin for for ABR Margin Commitment
Level Net Leverage Ratio for Revolving Term Loans Revolving for Term Loans Fee
Loans Loans
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1 Greater than 4.0 to 1.00 2.50% 2.50% 1.50% 1.50%
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2 Greater than 3.5 to 1.00 2.25% 2.25% 1.25% 1.25%
but less than or equal
to 4.0 to 1.00
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3 Greater than 3.0 to 1.00 2.00% 2.00% 1.00% 1.00%
but less than or equal
to 3.5 to 1.00
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8 Less than or equal to 1.75% 2.00% 0.75% 1.00%
3.0 to 1.00
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The "LIBOR Margin", the "ABR Margin" and the Commitment Fee for any date shall
be determined by reference to the Net Leverage Ratio as of the last day of the
fiscal quarter most recently ended as of such date and any change shall become
effective upon the delivery to the Administrative Agent of the financial
statements to be delivered pursuant to Section 5.04 for the most recently ended
fiscal quarter together with a certificate of a Responsible Officer of the
Borrower (a) setting forth in reasonable detail the calculation of the Net
Leverage Ratio for the end of such fiscal quarter and (b) stating that such
Responsible Officer has reviewed the terms of this Agreement and the other Loan
Documents and has made, or caused to be made under his or her supervision, a
review in reasonable detail of the transactions and condition of Holdings, the
Borrower and their Subsidiaries during the accounting period, and that such
Responsible Officer does not have knowledge of the existence as at the date of
such officers' certificate of any Event of Default or Default. It is understood
that the foregoing certificate of a Responsible Officer
shall be permitted to be delivered prior to, but in no event later than, the
time of the actual delivery of the financial statements required to be delivered
pursuant to Section 5.04. Notwithstanding the foregoing, (a) Term Loans shall
only bear interest at the rates listed for Levels 3 and 4 in this Schedule A if
(and for so long as) the Credit Facility is rated at such time (i) BB (or
higher) by Standard & Poor's Rating Group or (ii) Ba2 (or higher) by Xxxxx'x
Investor Services, Inc., and at any time the Borrower would otherwise qualify
for the Term Loan rates listed for Levels 3 or 4 based upon its Net Leverage
Ratio, but does not meet the rating requirements of this clause (a), Term Loans
shall only be available at the rates listed for Level 2 in this Schedule A, and
(b) at any time during which (i) the Borrower has failed to deliver the
certificate required under Section 5.04(c) with respect to a fiscal quarter
following the date the delivery thereof is due or (ii) a Default or Event of
Default is in existence, the Net Leverage Ratio shall be deemed, solely for the
purposes of this Schedule A, to be greater than 4.0 to 1.00, until such time as
the Borrower shall deliver such certificate.
CREDIT AGREEMENT dated as of __________ ___, 2002, among GPC CAPITAL
CORP. II (to be renamed Xxxxxx Packaging Company Inc.), a Delaware Corporation
("Holdings"), XXXXXX PACKAGING COMPANY, L.P., a Delaware limited partnership
(the "Borrower"), GPC CAPITAL CORP. I, a Delaware corporation (the
"Co-Borrower"), the Lenders party hereto from time to time, XXXXXXX XXXXX BARNEY
INC., as syndication agent (in such capacity, the "Syndication Agent"), DEUTSCHE
BANK TRUST COMPANY AMERICAS, as administrative agent (in such capacity, the
"Administrative Agent") and as collateral agent (in such capacity, the
"Collateral Agent") for the Lenders, and DEUTSCHE BANK SECURITIES INC., as sole
lead arranger and sole book runner (in such capacity, the "Sole Lead Arranger").
Pursuant to or in connection with the Transaction (as defined below),
Holdings, the Borrower and the Co-Borrower intend to refinance (the
"Refinancing") all of the Borrower's outstanding indebtedness under the
Borrower's Existing Credit Agreement (such term and each other capitalized term
used but not defined herein having the meaning given to it in Article I). In
connection with the Refinancing, (i) Holdings, a Wholly Owned Subsidiary of
Xxxxxx Packaging Holdings Company ("Old Holdings"), will or shall have changed
its name to Xxxxxx Packaging Company Inc. and will exchange newly issued shares
of its common stock for all of the partnership interests of Old Holdings and Old
Holdings will liquidate and all of its assets (including, without limitation,
all equity interests in the Borrower and Opco GP) and liabilities will be
transferred to Holdings (the "IPO Reorganization"); (ii) Holdings will issue at
least $225,000,000 of its common stock in its initial public offering (the
"Initial Public Offering"); (iii) Holdings will offer to repurchase, using the
net proceeds from the Initial Public Offering, all of the Holdings Discount
Notes and pay associated premiums, fees and expenses (the "Tender Offer"); and
(iv) the Borrower and the Co-Borrower will issue the New Senior Subordinated
Notes generating gross proceeds of at least $95,000,000 (such transaction,
together with the Initial Public Offering, the IPO Reorganization, the
Refinancing and the Tender Offer are collectively referred to as the
"Transaction").
The Borrower has requested the Lenders to extend credit, subject to the
terms and conditions herein, in the form of (a) Term Loans on the Closing Date,
in an aggregate principal amount not in excess of $550,000,000, (b) Revolving
Loans and Swingline Loans at any time and from time to time prior to the
Revolving Credit Maturity Date, in an aggregate principal amount at any time
outstanding not in excess of the difference between (i) $150,000,000 and (ii)
the Revolving L/C Exposure at such time and (c) Letters of Credit, at any time
and from time to time prior to the Revolving Credit Maturity Date, in an
aggregate stated amount at any time outstanding not in excess of $50,000,000.
The proceeds of the Term Loans and up to $5,000,000 of Revolving Loans
(or such other amount as may be agreed to by the Borrower and the Agents), will
be used on the Closing Date, together with the proceeds of the Initial Public
Offering and the issuance of the New Senior Subordinated Notes, (i) to effect
the Tender Offer, (ii) to effect the Refinancing, (iii) to pay related fees,
expenses and other transaction costs and (iv) for other general corporate
purposes. The proceeds of Revolving Loans (except as described above) will be
used for general corporate purposes. The Letters of Credit and Swingline Loans
will be used for general corporate purposes.
The Lenders are willing to extend such credit to the Borrower and each
Fronting Bank is willing to issue Letters of Credit for the account of the
Borrower, in each case on the terms and subject to the conditions set forth
herein. Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any ABR Term Loan, ABR Revolving Loan, or
Swingline Loan.
"ABR Margin" shall mean for Term Loans, Revolving Loans and Swingline
Loans, the rate per annum set forth under the relevant column heading opposite
such Loans as set forth on Schedule A hereto.
"ABR Revolving Loan" shall mean any Revolving Loan bearing interest at
a rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ABR Term Borrowing" shall mean a Borrowing comprised of ABR Term
Loans.
"ABR Term Loan" shall mean any Term Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Additional Mortgage" shall have the meaning provided in Section
5.11(b).
"Additional Mortgaged Property" shall have the meaning provided in
Section 5.11(b).
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the product of (a) the LIBO Rate
in effect for such Interest Period and (b) Statutory Reserves, if any.
"Administrative Agent" shall have the meaning given such term in the
introductory paragraph of this Agreement.
"Administrative Agent Fees" shall have the meaning given such term in
Section 2.05(c).
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"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"Agents" shall mean each of the Administrative Agent, Syndication
Agent, the Sole Lead Arranger and the Collateral Agent.
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount
of the Lenders' Revolving Credit Exposures.
"Alternate Base Rate" shall mean, for any day, a rate per annum equal
to the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate, including the failure of the Federal Reserve Bank of New
York to publish rates or the inability of the Administrative Agent to obtain
quotations in accordance with the terms thereof, the Alternate Base Rate shall
be determined without regard to clause (b) of the preceding sentence until the
circumstances giving rise to such inability no longer exist. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" of any Revolving Credit Lender at any time
shall mean the percentage of the Total Revolving Credit Commitment represented
by such Lender's Revolving Credit Commitment. In the event the Revolving Credit
Commitments shall have expired or been terminated, the Applicable Percentages
shall be determined on the basis of the Revolving Credit Commitments most
recently in effect, but giving effect to any assignments pursuant to Section
9.04.
"Asset Disposition" shall mean any sale, transfer or other disposition
by Holdings, the Borrower or any of their respective Subsidiaries to any person
other than the Borrower or any Subsidiary Guarantor of any asset, the Net
Proceeds from which exceed $10,000,000.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent and the Borrower, in the form of Exhibit A or such other form as shall be
approved by the Administrative Agent.
"Available Investment Basket Amount" shall mean, on any date of
determination, an amount equal to (i) the Cumulative Retained Excess Cash Flow
Amount on such date (after giving effect to all prior and contemporaneous
reductions thereto), plus (ii) the Cumulative Retained Net Proceeds Amount on
such date, plus (iii) the amount of funds theretofore received after the Closing
Date which, if not spent as described in the parenthetical below in this clause
(iii), would have constituted Net Proceeds under clause (a) of the definition
thereof (but which will not constitute such Net Proceeds pursuant to the first
proviso to said clause (a) as a result of the use of such funds to make payments
in connection with investments pursuant to Sections 6.04(k) and (l)), minus (iv)
any amounts used to make investments pursuant to clause (x) of the proviso to
Section 6.04(j), clause (x) of the
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proviso to Section 6.04(k) and/or clause (x) of the proviso to Section 6.04(n)
after the Closing Date and on or prior to such date, and minus (v) any amounts
used to make Permitted Business Acquisitions after the Closing Date and on or
prior to such date pursuant to clause (z) of the proviso to the definition of
Permitted Business Acquisition Amount.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States.
"Borrower" shall have the meaning given such term in the introductory
paragraph of this Agreement.
"Borrowing" shall mean a group of Loans of a single Type under a single
Tranche of Loans and made on a single date and, in the case of Eurodollar Loans,
as to which a single Interest Period is in effect.
"Borrowing Request" shall mean a request by the Borrower in accordance
with the terms of Section 2.03 and substantially in the form of Exhibit B.
"Business Day" shall mean any day other than a Saturday, Sunday or day
on which banks in New York City are authorized or required by law to close;
provided, however, that when used in connection with a Eurodollar Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in Dollar deposits in the London interbank market.
"Capital Expenditures" shall mean, for any person in respect of any
period, the aggregate of all expenditures incurred by such person during such
period that, in accordance with GAAP, are or should be included in "additions to
property, plant or equipment" or similar items reflected in the statement of
cash flows of such person (which shall in any event exclude investments made
pursuant to Section 6.04 (exclusive of clause (q) thereof)); provided, however,
that Capital Expenditures for the Borrower and its Subsidiaries shall not
include (a) expenditures to the extent they are made with the proceeds of the
issuance of Equity Interests (other than Designated Capital Contributions) of
Holdings after the Closing Date or with funds that would have constituted Net
Proceeds under clause (a) of the definition of the term "Net Proceeds" (but
which will not constitute Net Proceeds as a result of the first two provisos to
said clause (a)), (b) expenditures of proceeds of insurance settlements,
condemnation awards and other settlements in respect of lost, destroyed, damaged
or condemned assets, equipment or other property to the extent such expenditures
are made to replace or repair such lost, destroyed, damaged or condemned assets,
equipment or other property or otherwise to acquire assets or properties useful
in the business of the Borrower and the Subsidiaries within 12 months of receipt
of such proceeds, (c) interest capitalized during such period, (d) expenditures
that are accounted for as capital expenditures of such person and that actually
are paid for by a third party (excluding Holdings or any Subsidiary thereof) and
for which neither Holdings nor any Subsidiary thereof has provided or is
required to provide or incur, directly or indirectly, any consideration or
obligation to such third party or any other person (whether before, during or
after such period) or (e) the book value of any asset owned by such person prior
to or during such period to the extent that such book value is included as a
capital expenditure during such period as a result of such person reusing or
beginning to reuse such asset during such period
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without a corresponding expenditure actually having been made in such period,
provided that any expenditure necessary in order to permit such asset to be
reused shall be included as a Capital Expenditure during the period that such
expenditure actually is made and such book value shall have been included in
Capital Expenditures when such asset was originally acquired.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP
and, for purposes hereof, the amount of such obligations at any time shall be
the capitalized amount thereof at such time determined in accordance with GAAP.
"Cash Interest Expense" shall mean, with respect to the Borrower and
its Subsidiaries on a consolidated basis for any period, Interest Expense for
such period (but in any event excluding interest expense of Holdings and Old
Holdings with respect to the Holdings Discount Notes, except as otherwise
expressly provided in the immediately succeeding sentence), less the sum of (a)
pay-in-kind Interest Expense, (b) to the extent included in Interest Expense,
the amortization of any financing fees paid by, or on behalf of, the Borrower or
any of its Subsidiaries, including such fees paid in connection with the
Transaction (including any such fees paid by Holdings from the proceeds of
distributions from the Borrower), (c) the amortization of debt discounts, if
any, or fees in respect of Interest Rate Protection Agreements and (d) gross
interest income of the Borrower and its Subsidiaries for such period.
Notwithstanding anything to the contrary contained above, if any Holdings
Discount Notes remain outstanding after March 31, 2003, then all interest
expense (whether of Holdings or any of its Subsidiaries) relating thereto for
periods after March 31, 2003 shall be deemed to constitute cash interest expense
of the Borrower and shall increase Cash Interest Expense as otherwise determined
pursuant to the immediately preceding sentence.
"CERCLA" shall have the meaning given such term in the definition of
the term "Environmental Law".
"Change in Control" shall be deemed to have occurred if, subsequent to
the Closing Date (i) (a) Holdings shall fail to own directly, beneficially and
of record (except that 1% may be owned indirectly through Opco GP so long as
Opco GP is a direct Wholly Owned Subsidiary of Holdings), free and clear of any
and all liens (other than Liens in favor of the Collateral Agent pursuant to
Pledge Agreement) 100% of the issued and outstanding Equity Interests in the
Borrower; or (b) any person or group (within the meaning of Rule 13d-5 of the
Securities Exchange Act of 1934 as in effect on the date hereof), other than
management of Holdings or the Borrower, shall own beneficially, directly or
indirectly, in the aggregate Equity Interests representing a greater percentage
of the aggregate ordinary voting power represented by the issued and outstanding
Equity Interests of Holdings than the aggregate ordinary voting power at such
time represented by the issued and outstanding Equity Interests of Holdings
owned beneficially, directly or indirectly, by the Fund and Fund Affiliates
(excluding, for this purpose, from the definition of Fund Affiliates management
of Holdings and the Borrower), or (ii) a "Change in Control" shall occur under
the Senior Subordinated Note Indenture, the New Senior Subordinated Note
Indenture or the Holdings Discount Note Indenture.
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"Charges" shall have the meaning provided in Section 9.09.
"Closing Date" shall mean a single date (which shall in no event be
later than September 30, 2002) on which the initial Borrowing or issuance of a
Letter of Credit occurs hereunder.
"Co-Borrower" shall have the meaning given such term in the
introductory paragraph of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean all the "Collateral" as defined in any Security
Document and shall also include the Mortgaged Properties.
"Collateral Agent" shall have the meaning given such term in the
introductory paragraph of this Agreement.
"Commercial Letter of Credit" shall mean a commercial documentary
Letter of Credit under which any Fronting Bank agrees to make payments in
Dollars for the account of the Borrower, on behalf of the Borrower or a
Subsidiary of the Borrower, in respect of obligations of the Borrower or such
Subsidiary in connection with the purchase of goods or services.
"Commitment Fee" shall have the meaning given such term in Section
2.05(a).
"Commitments" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment, Term Loan Commitment and Swingline Loan Commitment
and, with respect to any Fronting Bank, its Revolving L/C Commitment.
"Consolidated Net Income" means, with respect to any person for any
period, the aggregate of the Net Income of such person and its Subsidiaries for
such period, on a consolidated basis; provided, however, that (i) any net
after-tax extraordinary gains or losses (less all fees and expenses relating
thereto) shall be excluded, (ii) any increase in the cost of sales or other
incremental expenses resulting from purchase accounting in relation to any
acquisition, net of taxes, shall be excluded, (iii) Consolidated Net Income for
such period shall not include the cumulative effect of a change in accounting
principles during such period, (iv) any net after-tax income (loss) from
discontinued operations and any net after-tax gains or losses on disposal of
discontinued operations shall be excluded, (v) any net after-tax gains or losses
(less all fees and expenses relating thereto) attributable to asset dispositions
other than in the ordinary course of business (as determined in good faith by
Holdings or the Borrower) shall be excluded, (vi) the Net Income for such period
of any person that is not a Subsidiary, or that is accounted for by the equity
method of accounting, shall be included only to the extent of the amount of
dividends or distributions or other payments paid in cash (or to the extent
converted into cash) to the referent person or a Subsidiary thereof in respect
of such period, (vii) the Net Income of any person acquired in a pooling of
interests transaction shall not be included for any period prior to the date of
such acquisition, (viii) the Net Income for such period of any Subsidiary shall
be excluded to the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary of its Net Income is not at the date of
determination permitted without any prior
-6-
governmental approval (which has not been obtained) or, directly or indirectly,
by the operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule, or governmental regulation applicable to
that Subsidiary or its stockholders, unless such restriction with respect to the
payment of dividends or in similar distributions has been legally waived and
(ix) Consolidated Net Income for such period shall be decreased by the amount of
all payments made during such period pursuant to Sections 6.06(c) and (e).
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Credit Event" shall have the meaning given such term in Article IV.
"Cumulative Retained Excess Cash Flow Amount" shall mean, at any date,
an amount, not less than zero, determined on cumulative basis equal to (x) the
amount of Excess Cash Flow for all Excess Cash Flow Periods ending after the
Closing Date which is not (and, in the case of any Excess Cash Flow Period where
the respective required date of prepayment has not yet occurred pursuant to
Section 2.12(d), will not on such date of required prepayment be) required to be
applied in accordance with Section 2.12(d) minus (y) the aggregate amount of
Capital Expenditures made on or prior to such date pursuant to Section
6.10(c)(ii).
"Cumulative Retained Net Proceeds Amount" shall mean (x) the aggregate
amount of proceeds received after the Closing Date which would have constituted
Net Proceeds pursuant to clause (a) of the definition thereof except for the
operation of the second proviso to said clause (a), plus (y) at any time after
the first date upon which the Net Leverage Ratio is less than 3.50 to 1.00 (as
established pursuant to the certificate last delivered (or required to be
delivered) pursuant to Section 5.04(c)), that amount which, as of the date of
determination of the Cumulative Retained Net Proceeds Amount, equals the amount
which would have constituted Net Proceeds received after the Closing Date, but
which did not constitute Net Proceeds, because of (and to the extent of) the
operation of the last sentence of the definition of Net Proceeds contained
herein, minus (z) the aggregate amount of Capital Expenditures made on or prior
to such date pursuant to Section 6.10(a)(iii).
"Cure Amount" shall have the meaning provided in Section 7.02.
"Cure Right" shall have the meaning provided in Section 7.02.
"Current Assets" shall mean, with respect to the Borrower and its
Subsidiaries on a consolidated basis at any date of determination, all assets
(other than cash and Permitted Investments or other cash equivalents) that
would, in accordance with GAAP, be classified on a consolidated balance sheet of
the Borrower and its Subsidiaries as current assets at such date of
determination.
"Current Liabilities" shall mean, with respect to the Borrower and its
Subsidiaries on a consolidated basis at any date of determination, all
liabilities that would, in accordance with GAAP, be classified on a consolidated
balance sheet of the Borrower, and its Subsidiaries as current liabilities at
such date of determination, other than (a) the current portion of long-term
-7-
debt, (b) accruals of Interest Expense (excluding Interest Expense that is due
and unpaid), (c) Revolving Loans or Swingline Loans classified as current, (d)
loans of Foreign Subsidiaries of the Borrower classified as current, (e)
accruals, if any, of transaction costs resulting from the Transaction, (f)
accruals of any costs or expenses related to severance or termination of
employees prior to the date hereof and (g) accruals for add-backs to EBITDA
included in clauses (e)-(j) of the definition thereof.
"DBTCA" shall mean Deutsche Bank Trust Company Americas, in its
individual capacity, and any successor corporation thereto.
"Debt Service" shall mean, with respect to the Borrower and its
Subsidiaries on a consolidated basis for any period, Cash Interest Expense for
such period plus scheduled principal amortization of Total Debt for such period
(whether or not such payments are made).
"Default" shall mean any event or condition that upon notice, lapse of
time or both would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which a
Lender Default is in effect.
"Designated Capital Contributions" shall mean any common equity
contributions made after the Closing Date by the Designated Investors directly
or indirectly to Holdings (which equity contributions are, in turn, contributed
by Holdings to the Borrower) so long as all proceeds thereof are used by the
Borrower to make Capital Expenditures pursuant to Section 6.10(c)(i) and/or
acquisitions and investments pursuant to Sections 6.04(j), (k), (l) and (n);
provided that no Designated Capital Contribution may be used to repay
(temporarily or permanently) any Indebtedness of Holdings, the Borrower or any
of their respective Subsidiaries, whether pursuant to this Agreement or
otherwise (and, if so used, the respective equity contribution shall not
constitute a Designated Capital Contribution). For avoidance of doubt, it is
understood and agreed that in no event shall (x) any amounts contributed
pursuant to the exercise of Cure Rights pursuant to Section 7.02, (y) any
amounts constituting Special Capital Contributions or (z) any amounts received
from the issuance and sale of common equity of Holdings through one or more
registered public offerings thereof, be deemed to constitute (in whole or in
part) Designated Capital Contributions.
"Designated Investors" shall mean the Fund, Fund Affiliates, management
of Holdings and the Borrower on the Closing Date; any other entity holding
direct or indirect Equity Interests in Old Holdings on the Original Closing
Date, including, in any event, any entity that is controlled by the Xxxxxx
family; and any other person approved by the Agents.
"Dollars" or "$" shall mean lawful money of the United States of
America.
"EBITDA" shall mean, with respect to the Borrower and its Subsidiaries
on a consolidated basis for any period, the Consolidated Net Income of the
Borrower and its Subsidiaries for such period plus (in each case without
duplication and to the extent the respective amounts described in items (a)
through (i) below reduced such Consolidated Net Income for the respective period
for which EBITDA is being determined) (a) provision for taxes based on income or
profits of the Borrower and its Subsidiaries and Permitted Tax Amount
-8-
Distributions made by the Borrower for such period, plus (b) Interest Expense of
the Borrower and its Subsidiaries for such period, plus (c) depreciation and
amortization expense of the Borrower and its Subsidiaries for such period, plus
(d) any fees, expenses or charges related to the Transaction or any other equity
offering, investments permitted hereunder, acquisition or recapitalization or
Indebtedness permitted to be incurred hereunder (whether or not successful),
plus (e) the amount of any non-recurring charges (including any one-time costs
incurred in connection with acquisitions after the Closing Date), plus (f) any
other non-cash charges (excluding any such charge which requires an accrual of a
cash reserve for anticipated cash charges for any future period), plus (g) the
amount of any minority interest expense, plus (h) the amount of management,
consulting monitoring and advisory fees paid to the Fund and its Affiliates
during such period not to exceed $1.0 million during any four quarter period
less, without duplication, (i) non-cash items increasing Consolidated Net Income
of the Borrower and its Subsidiaries for such period (excluding any items which
represent the reversal of any accrual of, or cash reserve for, anticipated cash
charges in any prior period).
"Eligible Transferee" shall mean and include a commercial bank,
financial institution, fund that invests in loans or extensions of credit of the
types made pursuant to this Agreement or any other "accredited investor" (as
defined in regulation D of the Securities Act of 1933, as amended).
"Employee Equity Sales" shall have the meaning given such term in the
definition of the term Net Proceeds.
"environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, the workplace or as otherwise defined in any Environmental
Law.
"Environmental Claim" shall mean any written accusation, allegation,
notice of violation, claim, demand, order, directive, cost recovery action or
other cause of action by, or on behalf of, any Governmental Authority or any
person for damages, injunctive or equitable relief, personal injury (including
sickness, disease or death), Remedial Action costs, tangible or intangible
property damage, natural resource damages, nuisance, pollution, any adverse
effect on the environment caused by any Hazardous Material, or for fines,
penalties or restrictions, resulting from or based upon: (a) the threat, the
existence, or the continuation of the existence of a Release (including sudden
or non-sudden, accidental or non-accidental Releases); (b) exposure to any
Hazardous Material; (c) the presence, use, handling, transportation, storage,
treatment or disposal of any Hazardous Material; or (d) the violation or alleged
violation of any Environmental Law or Environmental Permit.
"Environmental Law" shall mean any and all applicable current and
future treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the treatment,
storage, disposal, Release or threatened Release of any Hazardous Material or to
human health or safety, including the Hazardous Materials Transportation Act, 49
U.S.C.(Section) 1801 et seq., the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C.(Section) 9601 et
seq. ("CERCLA"), the Solid Waste Disposal Act,
-9-
as amended, 42 U.S.C.(Section) 6901 et seq., the Federal Water Pollution Control
Act, as amended, 33 U.S.C.(Section) 1251 et seq., the Clean Air Act of 1970, as
amended, 42 U.S.C.(Section) 7401 et seq., the Toxic Substances Control Act of
1976, 15 U.S.C.(Section) 2601 et seq., the Emergency Planning and Community
Right-to-Know Act of 1986, 42 U.S.C.(Section) 11001 et seq., the National
Environmental Policy Act of 1975, 42 U.S.C.(Section) 4321 et seq., the Safe
Drinking Water Act of 1974, as amended, 42 U.S.C.(Section) 300(f) et seq., and
any similar or implementing state, local or foreign law, and all amendments or
regulations promulgated under any of the foregoing.
"Environmental Permit" shall mean any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"Equity Interests" of any person shall mean any and all shares,
interests, rights to purchase, warrants, options, participation or other
equivalents of or interests in (however designated) equity of such person,
including any preferred stock, any limited or general partnership interest and
any limited liability company membership interest, but excluding any debt
securities convertible into such equity.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Loan" shall mean any Eurodollar Term Loan or Eurodollar
Revolving Loan.
"Eurodollar Revolving Loan" shall mean any Revolving Loan bearing
interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Eurodollar Term Borrowing" shall mean a Borrowing comprised of
Eurodollar Term Loans.
"Eurodollar Term Loan" shall mean any Term Loan bearing interest at a
rate determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.
"Event of Default" shall have the meaning given such term in Article
VII.
"Excess Amount" shall have the meaning provided in Section 2.12(g).
"Excess Cash Flow" shall mean, with respect to the Borrower and its
Subsidiaries on a consolidated basis for any Excess Cash Flow Period, EBITDA of
the Borrower and its
-10-
Subsidiaries on a consolidated basis for such Excess Cash Flow Period, minus,
without duplication, (a) Debt Service for such Excess Cash Flow Period, (b) any
voluntary prepayments of Term Loans during the period beginning on April 1 of
such Excess Cash Flow Period and ending on March 31 of the immediately
succeeding Excess Cash Flow Period and any permanent voluntary reductions to the
Revolving Credit Commitments to the extent that an equal amount of the Revolving
Loans simultaneously is repaid, so long as such amounts are not already
reflected in Debt Service, (c) (i) Capital Expenditures by the Borrower and its
Subsidiaries on a consolidated basis during such Excess Cash Flow Period
(excluding Capital Expenditures made in such Excess Cash Flow Period where a
certificate in the form contemplated by the following clause (d) was previously
delivered) that are paid in cash and (ii) the aggregate consideration paid in
cash during such Excess Cash Flow Period, in respect of Permitted Business
Acquisitions and other investments permitted hereunder (less any amounts
received in respect thereof as a return of capital), (d) Capital Expenditures
that the Borrower or any Subsidiary of the Borrower shall, during such Excess
Cash Flow Period, become obligated to make but that are not made during such
Excess Cash Flow Period, provided that the Borrower shall deliver a certificate
to the Administrative Agent not later than 90 days after the end of such Excess
Cash Flow Period of the Borrower, signed by a Responsible Officer of the
Borrower and certifying that such Capital Expenditures and the delivery of the
related equipment will be made in the following Excess Cash Flow Period, (e)
taxes paid in cash by the Borrower and its Subsidiaries on a consolidated basis
during such Excess Cash Flow Period or which are paid during the respective
Excess Cash Flow Period or will be paid within six months after the close of
such Excess Cash Flow Period (provided that any amount so deducted which will be
paid after the close of such Excess Cash Flow Period shall not be deducted again
in a subsequent Excess Cash Flow Period) and for which reserves have been
established, including income tax expense and withholding tax expense incurred
in connection with cross-border transactions involving its Foreign Subsidiaries,
(f) without duplication of the preceding clause (e), Permitted Tax Amount
Distributions which are paid during the respective Excess Cash Flow Period or
will be paid within six months after the close of such Excess Cash Flow Period
(provided that any amount so deducted which will be paid after the close of such
Excess Cash Flow Period shall not be deducted again in a subsequent Excess Cash
Flow Period), (g) an amount equal to any increase in Working Capital of the
Borrower and its Subsidiaries for such Excess Cash Flow Period, (h) to the
extent not deducted in determining EBITDA, monitoring and management fees paid
to the Fund and/or any of its Affiliates or the Fund Affiliates and annual fees
paid to Xxxxxx Family Growth Partnership and its Affiliates during such Excess
Cash Flow Period, (i) cash expenditures made in respect of Interest Rate
Protection Agreements and Other Hedging Agreements during such Excess Cash Flow
Period, to the extent not reflected in the computation of EBITDA or Interest
Expense, (j) permitted dividends or distributions (excluding Permitted Tax
Amount Distributions, which are covered in clause (f) above) or repurchases of
its Equity Interests paid in cash by Holdings or the Borrower during such Excess
Cash Flow Period and permitted dividends paid by any Subsidiary of the Borrower
to any person other than the Borrower or any of the Borrower's other
Subsidiaries during such Excess Cash Flow Period, in each case in accordance
with Section 6.06, (k) amounts paid in cash during such Excess Cash Flow Period
on account of items that were accounted for as noncash reductions of
Consolidated Net Income of the Borrower and its Subsidiaries in the current or a
prior period, (l) special charges or any extraordinary or nonrecurring loss paid
in cash during such Excess Cash Flow Period, (m) to the extent not deducted in
the computation of Net Proceeds in respect of any asset disposition or
condemnation
-11-
giving rise thereto, mandatory prepayments of Indebtedness (other than
Indebtedness created hereunder or under any other Loan Document) and (n) to the
extent included in determining EBITDA, all items that did not result from a cash
payment to the Borrower and its Subsidiaries on a consolidated basis during such
Excess Cash Flow Period plus, without duplication, (i) an amount equal to any
decrease in Working Capital for such Excess Cash Flow Period, (ii) all proceeds
received during such Excess Cash Flow Period of Capital Lease Obligations,
purchase money Indebtedness, Sale and Lease-Back Transactions pursuant to
Section 6.03 and any other Indebtedness, in each case to the extent used to
finance any Capital Expenditure (other than Indebtedness under this Agreement to
the extent there is no corresponding deduction to Excess Cash Flow above in
respect of the use of such Borrowings), (iii) all amounts referred to in (c)
above to the extent funded with the proceeds of the issuance of Equity Interests
of, or capital contributions to, Holdings after the Closing Date (to the extent
not previously used to prepay Indebtedness (other than Revolving Loans or
Swingline Loans), make any investment or capital expenditure or otherwise for
any purpose resulting in a deduction to Excess Cash Flow in any prior Excess
Cash Flow Period) or any amount that would have constituted Net Proceeds under
clause (a) of the definition of the term "Net Proceeds" if not so spent, in each
case to the extent there is a corresponding deduction to Excess Cash Flow above,
(iv) to the extent any permitted Capital Expenditures and the corresponding
delivery of equipment referred to in (d) above do not occur in the Excess Cash
Flow Period of the Borrower specified in the certificate of the Borrower
provided pursuant to (d) above, such amounts of Capital Expenditures that were
not so made in the Excess Cash Flow Period of the Borrower specified in such
certificates, (v) cash payments received in respect of Interest Rate Protection
Agreements during such Excess Cash Flow Period to the extent not (A) included in
the computation of EBITDA or (B) reducing Cash Interest Expense, (vi) any
extraordinary or nonrecurring gain realized in cash during such Excess Cash Flow
Period (except to the extent such gain is subject to Section 2.12(c)), (vii) to
the extent deducted in the computation of EBITDA, interest income and (viii) to
the extent subtracted in determining EBITDA, all items that did not result from
a cash payment by the Borrower and its Subsidiaries on a consolidated basis
during such Excess Cash Flow Period.
"Excess Cash Flow Period" shall mean each fiscal year of the Borrower.
commencing with its fiscal year ended closest to December 31, 2003.
"Excess Funding Amount" shall have the meaning provided in Section
6.09(b).
"Existing Credit Agreement" shall mean the Credit Agreement dated as of
February 2, 1998 (as amended, modified and/or supplemented from time to time),
among Old Holdings, the Borrower, the Co-Borrower, the lenders from time to time
party thereto and Deutsche Bank Trust Company Americas (f/k/a Bankers Trust
Company), as administrative agent.
"Existing Letter of Credit" shall mean each letter of credit issued
under the Existing Credit Agreement that is to remain outstanding after the
Closing Date and listed on Schedule 1.01 and designated as either (x) a
Commercial Letter of Credit or (y) a Standby Letter of Credit.
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System
-12-
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the quotations for
the day of such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Fees" shall mean the Commitment Fees, the L/C Participation Fees, the
Fronting Bank Fees and the Administrative Agent Fees.
"Financial Officer" of any person shall mean the chief financial
officer, principal accounting officer, Treasurer, Assistant Treasurer or
Controller of such person.
"Financial Performance Covenants" means the covenants of Holdings and
the Borrower set forth in Sections 6.11 and 6.12.
"Foreign Subsidiary" shall mean, for any person, each Subsidiary of
such person that is incorporated or organized under the laws of any jurisdiction
other than the United States of America, any state thereof, the United States
Virgin Islands or Puerto Rico.
"Fronting Bank" shall mean (i) with respect to Standby Letters of
Credit, DBTCA, and (ii) with respect to Commercial Letters of Credit, any Lender
(and, in the case of DBTCA (if and to the extent it subsequently agrees in its
sole discretion to be an issuer of Commercial Letters of Credit hereunder), any
bank affiliate thereof which has agreed to issue Commercial Letters of Credit
hereunder) which, at the request of the Borrower and with the consent of the
Administrative Agent, agrees in such Lender's sole discretion to become a
Fronting Bank for purposes of issuing Commercial Letters of Credit pursuant to
Section 2.20.
"Fronting Bank Fees" shall have the meaning given to such term in
Section 2.05(b).
"Xxxxxx County Bond Transaction" shall mean one or more "Xxxxxx County
Bond" transactions consummated by the Borrower and its Subsidiaries after the
Closing Date with respect to production equipment and related property located
in Xxxxxx County, Georgia, on terms substantially similar to the existing Xxxxxx
County Bond Transactions of the Borrower with respect to production equipment
and related property located in Xxxxxx County, Georgia, where (i) the Borrower
and its Subsidiaries transfer title to the Development Authority of Xxxxxx
County, Georgia (or a substantially similar Governmental Authority) (the
"Development Authority") to the respective production equipment and related
property located in Xxxxxx County, Georgia (the "Subject Property") (which shall
have been acquired and/or constructed by the Borrower and its Subsidiaries in
accordance with the relevant limitations on Capital Expenditures contained in
this Agreement), (ii) the Borrower or a Subsidiary thereof shall lease the
respective Subject Property back from the Development Authority (such lease
shall (x) require no cash payments by the Borrower or any of its Subsidiaries
and (y) allow for the purchase of the Subject Property by the Borrower or a
Subsidiary thereof for no, or nominal, consideration), (iii) the Development
Authority shall issue industrial revenue bonds in an amount to be agreed with
the Borrower and the Borrower shall purchase the Bonds, with the Development
Authority immediately loaning the proceeds of the Bonds back to the Borrower (so
that there is no effect on the Borrower's financial cash position, and with any
payments on the
-13-
loan (if any) being immediately repaid to the Borrower with respect to the
Bonds), (iv) the Bonds, and the Borrower's obligation to repay the loan of the
proceeds of the Bonds, are not treated as indebtedness under GAAP or recorded as
indebtedness on the Borrower's financial statements, (v) the Bonds are pledged
pursuant to the Pledge Agreement and are themselves secured by the respective
Subject Property, (vi) the Bonds may be redeemed at the request of the Borrower
(and the loan cancelled) at any time (with no cash payment required), and (vii)
the respective Subject Property is recorded as an asset or assets on the
Borrower's balance sheet and the Borrower's lease payments or obligations shall
not be reflected as lease payments or obligations on the Borrower's financial
statements all in accordance with GAAP.
"Fund" shall mean Blackstone Capital Partners III Merchant Banking Fund
L.P., a Delaware limited partnership, and Blackstone Offshore Capital Partners
III L.P., a Cayman Islands limited partnership.
"Fund Affiliates" shall mean each Affiliate of the Fund that is not an
operating company or Controlled by an operating company and each general partner
of the Fund or any Fund Affiliate who is a partner or employee of The Blackstone
Group L.P.
"GAAP" shall mean generally accepted accounting principles in effect
from time to time in the United States, applied on a consistent basis (provided
that, at their option, Holdings and its Subsidiaries may capitalize repair and
maintenance expenses in connection with their capital assets, so long as such
capitalization is done on a consistent basis for all periods ended after the
Closing Date, except for such period as is reasonably necessary to implement the
change described above in this parenthetical).
"Governmental Authority" shall mean any federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body or, in the case of references to "Governmental Authority" in Article II and
Sections 9.04 and 9.16, the National Association of Insurance Commissioners.
"Guarantee" of or by any person shall mean (a) any obligation,
contingent or otherwise, of such person guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other person (the "primary
obligor") in any manner, whether directly or indirectly, and including any
obligation of such person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness
(whether arising by virtue of partnership arrangements, by agreement to keep
well, to purchase assets, goods, securities or services, to take-or-pay or
otherwise) or to purchase (or to advance or supply funds for the purchase of)
any security for the payment of such Indebtedness, (ii) to purchase or lease
property, securities or services for the purpose of assuring the owner of such
Indebtedness of the payment of such Indebtedness, (iii) to maintain working
capital, equity capital or any other financial statement condition or liquidity
of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or (iv) entered into for the purpose of assuring in any other
manner the holders of such Indebtedness of the payment thereof or to protect
such holders against loss in respect thereof (in whole or in part), or (b) any
Lien on any assets of such person securing any Indebtedness of any other person,
whether or not such Indebtedness is assumed by such person; provided, however,
that the term "Guarantee" shall not include endorsements for collection or
deposit, in either case in the ordinary course of business, or customary and
-14-
reasonable indemnity obligations in effect on the Closing Date or entered into
in connection with any acquisition or disposition of assets permitted under this
Agreement.
"Guarantee Agreements" shall mean the Parent Guarantee Agreement and
the Subsidiary Guarantee Agreement.
"Guarantors" shall mean Holdings and the Subsidiary Guarantors.
"Hazardous Materials" shall mean any material meeting the definition of
a "hazardous substance" in CERCLA 42 U.S.C. (Section) 9601(14) and all explosive
or radioactive substances or wastes; hazardous or toxic substances or wastes;
pollutants; solid, liquid or gaseous wastes, including petroleum, petroleum
distillates or fractions or residues, asbestos or asbestos containing materials,
polychlorinated biphenyls ("PCBs") or materials or equipment containing PCBs in
excess of 50 parts per million (ppm), radon gas, infectious or medical wastes,
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law, or that reasonably could form the basis of an Environmental
Claim.
"Holdings" shall have the meaning given such term in the introductory
paragraph of this agreement.
"Holdings Discount Note Documents" shall mean the Holdings Discount
Notes and the Holdings Discount Note Indenture.
"Holdings Discount Note Indenture" shall mean the Indenture dated as of
February 2, 1998, among Old Holdings, Holdings and the trustee named therein
from time to time, as in effect on the Original Closing Date and as thereafter
amended from time to time in accordance with the terms thereof and of this
Agreement.
"Holdings Discount Notes" shall mean Holdings' 10-3/4% Senior Discount
Notes due 2009 issued pursuant to the Holdings Discount Note Indenture and any
notes issued by Holdings in exchange for, and as contemplated by, the Holdings
Discount Notes with substantially identical terms as the Holdings Discount
Notes.
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money, (b) all obligations of such
person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such person under conditional sale or other title retention
agreements relating to property or assets purchased by such person, (d) all
obligations of such person issued or assumed as the deferred purchase price of
property or services (other than current trade liabilities and current
intercompany liabilities (but not any refinancings, extensions, renewals or
replacements thereof) incurred in the ordinary course of business and maturing
within 365 days after the incurrence thereof), (e) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such person, whether or not the obligations secured thereby have
been assumed, (f) all Guarantees by such person of Indebtedness of others, (g)
all Capital Lease Obligations of such person, (h) all payments that such person
would have to make in the event of an early termination, on the date
Indebtedness of such person is being determined, in respect of outstanding
interest rate protection agreements, foreign currency exchange agreements or
other interest or exchange rate hedging arrangements
-15-
and (i) all obligations of such person as an account party in respect of letters
of credit and bankers' acceptances.
"Indemnitee" shall have the meaning provided in Section 9.05(b).
"Information Memorandum" shall have the meaning given such term in
Section 3.15(a).
"Initial Date" shall have the meaning provided in Section 2.19(a).
"Initial Public Offering" shall have the meaning given such term in the
preamble of this Agreement.
"Interest Coverage Ratio" shall have the meaning given such term in
Section 6.11.
"Interest Expense" shall mean, with respect to the Borrower and its
Subsidiaries on a consolidated basis for any period, the sum of (a) gross
interest expense of the Borrower and its Subsidiaries for such period on a
consolidated basis, including (i) the amortization of debt discounts, (ii) the
amortization of all fees (including fees with respect to interest rate
protection agreements) payable in connection with the incurrence of Indebtedness
to the extent included in interest expense and (iii) the portion of any payments
or accruals with respect to Capital Lease Obligations allocable to interest
expense and (b) capitalized interest of the Borrower and its Subsidiaries on a
consolidated basis. For purposes of the foregoing, gross interest expense shall
be determined after giving effect to any net payments made or received by the
Borrower and its Subsidiaries with respect to Interest Rate Protection
Agreements.
"Interest Payment Date" shall mean, (a) with respect to any Eurodollar
Loan, the last day of the Interest Period applicable to the Borrowing of which
such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest
Period of more than three months' duration, each day that would have been an
Interest Payment Date had successive Interest Periods of three months' duration
been applicable to such Borrowing, and, in addition, the date of any refinancing
or conversion of such Borrowing with or to a Borrowing of a different Type and
(b) with respect to any ABR Loan, the last day of each calendar quarter.
"Interest Period" shall mean as to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing or on the last day of the immediately
preceding Interest Period applicable to such Borrowing, as the case may be, and
ending on the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6
months thereafter (or 9 or 12 months, if at the time of the relevant Borrowing,
all Lenders make interest periods of such length available), as the Borrower may
elect, and the date any Eurodollar Borrowing is converted to an ABR Borrowing in
accordance with Section 2.10 or repaid or prepaid in accordance with Section
2.11 or 2.12; provided, however, that if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day. Interest shall accrue from and including the first
day of an Interest Period to but excluding the last day of such Interest Period.
-16-
"Interest Rate Protection Agreement" shall mean any interest rate
hedging agreement or arrangement entered into by the Borrower or a Subsidiary of
the Borrower and designed to protect against fluctuations in interest rates.
"Investors" shall mean the Fund and each other owner of Equity
Interests in Old Holdings immediately prior to the IPO Reorganization.
"IPO Reorganization" shall have the meaning given such term in the
preamble to this Agreement.
"Joint Venture" shall mean any person in which the Borrower and its
Subsidiaries own, directly or indirectly, more than 5% but 50% or less of the
Equity Interests.
"L/C Disbursement" shall mean a payment or disbursement made by a
Fronting Bank pursuant to a Letter of Credit.
"L/C Participation Fee" shall have the meaning given such term in
Section 2.05(b).
"Lender" shall mean each financial institution listed on Schedule 2.01,
as well as any person which becomes a "Lender" hereunder pursuant to Section
9.04(b).
"Lender Default" shall mean (i) the refusal (which has not been
retracted) of a Lender to make available its portion of any Borrowing, to fund
Refunded Swingline Loans or to fund its portion of any unreimbursed payment
under Section 2.20(a)(iv) or (ii) a Lender having notified in writing the
Borrower and/or the Administrative Agent that it does not intend to comply with
its obligations under Section 2.01(b) or (c) or Section 2.20.
"Letter of Credit" shall mean the Commercial Letters of Credit, the
Standby Letters of Credit and the Existing Letters of Credit.
"Letter of Credit Request" shall have the meaning given such term in
Section 2.20(a)(i).
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for
any Interest Period, the rate at which dollar deposits approximately equal in
principal amount to the Administrative Agent's portion of such Eurodollar
Borrowing and for a maturity comparable to such Interest Period are offered to
the principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., New York time,
two Business Days prior to the commencement of such Interest Period.
"LIBOR Margin" shall mean for Term Loans and Revolving Loans the rate
per annum set forth under the relevant column heading opposite such Loans as set
forth on Schedule A hereto.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement
-17-
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.
"Loan Documents" shall mean this Agreement, the Letters of Credit, the
Guarantee Agreements, the Security Documents and, after the execution and
delivery thereof pursuant to the terms of this Agreement, any Note.
"Loan Parties" shall mean the Borrower and the Guarantors.
"Loans" shall mean the Term Loans, the Revolving Loans and the
Swingline Loans.
"Margin Stock" shall have the meaning given such term in Regulation U.
"Majority Lenders" of any Tranche shall mean those Lenders which would
constitute the Required Lenders under, and as defined in, this Agreement if all
outstanding Obligations of the other Tranches under this Agreement were repaid
in full and all Commitments with respect thereto were terminated.
"Material Adverse Effect" shall mean the existence of events,
conditions and/or contingencies that have had or are reasonably likely to have
(a) a materially adverse effect on the assets, business, operations, properties,
liabilities, profits or condition (financial or otherwise) of Holdings and its
Subsidiaries taken as a whole or the Borrower and its Subsidiaries taken as a
whole, (b) a material impairment of the ability of Holdings, the Borrower or any
of their Subsidiaries to perform any of its material obligations under any Loan
Document to which it is or will be a party or to consummate the Transaction or
(c) an impairment of the validity or enforceability of, or a material impairment
of the material rights, remedies or benefits available to the Lenders, any
Fronting Bank, the Administrative Agent or the Collateral Agent under any Loan
Document.
"Maximum Rate" shall have the meaning provided in Section 9.09.
"Mortgaged Properties" shall mean the owned real properties of the Loan
Parties specified on Schedule 3.20 that are expressly designated "Mortgaged
Properties".
"Mortgages" shall mean the mortgages, deeds of trust, assignments of
leases and rents and other security documents delivered pursuant to clause (i)
of Section 4.02(h) or pursuant to Section 5.11, each substantially in the form
of Exhibit D.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate (other
than one considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Code Section 414) is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an obligation to
make contributions.
"Net Income" means, with respect to any person, the net income (loss)
of such person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends.
-18-
"Net Leverage Ratio" shall mean, on any date, the ratio of (a) Total
Net Debt as of such date to (b) EBITDA for the period of four consecutive fiscal
quarters of the Borrower most recently ended as of such date, all determined on
a consolidated basis in accordance with GAAP, provided that to the extent any
Asset Disposition or any Permitted Business Acquisition (or any similar
transaction or transactions which require a waiver or a consent of the Required
Lenders pursuant to Section 6.05) has occurred during the relevant Test Period,
EBITDA shall be determined for the respective Test Period on a Pro Forma Basis
for such occurrences.
"Net Proceeds" shall mean (a) 100% of the cash proceeds actually
received by Holdings, the Borrower or any of their domestic Wholly Owned
Subsidiaries (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise and including casualty insurance settlements
and condemnation awards, but only as and when received) from any loss, damage,
destruction or condemnation of, or any sale, transfer or other disposition
(including any sale and leaseback of assets and any mortgage or lease of real
property) to any person of any asset or assets of Holdings, the Borrower or any
of their Subsidiaries (other than those pursuant to Sections 6.05(a), (b), (d),
(e), (j), (k), and (l)), net of (i) attorneys' fees, accountants' fees,
investment banking fees, survey costs, title insurance premiums, and related
search and recording charges, transfer taxes, deed or mortgage recording taxes,
required debt payments and required payments of other obligations relating to
the applicable asset (other than pursuant hereto or pursuant to the Holdings
Discount Notes, the Senior Subordinated Notes or the New Senior Subordinated
Notes), other customary expenses and brokerage, consultant and other customary
fees actually incurred in connection therewith, (ii) taxes paid or payable as a
result thereof, and (iii) Permitted Tax Amount Distributions to the extent
attributable thereto, provided that if no Event of Default exists and the
Borrower shall deliver a certificate of a Responsible Officer to the
Administrative Agent promptly following receipt of any such proceeds setting
forth the Borrower's intention to use any portion of such proceeds to purchase
assets useful in the business of the Borrower and its Subsidiaries, or make
investments pursuant to Sections 6.04(k) and (l), in each case within 12 months
of such receipt, such portion of such proceeds shall not constitute Net Proceeds
except to the extent not so used within such 12-month period, and provided
further, that (x) no proceeds realized in a single transaction or series of
related transactions shall constitute Net Proceeds unless such proceeds shall
exceed $300,000 and (y) no proceeds shall constitute Net Proceeds in any fiscal
year until the aggregate amount of all such proceeds in such fiscal year shall
exceed $5,000,000 or the aggregate of all such proceeds received after the
Closing Date shall exceed $10,000,000, (b) 100% of the cash proceeds from the
incurrence, issuance or sale by Holdings, the Borrower or any of their
Subsidiaries of any Indebtedness (other than Indebtedness permitted pursuant to
Section 6.01 as in effect on the Closing Date), net of all taxes and fees
(including investment banking fees), commissions, costs and other expenses, in
each case incurred in connection with such issuance or sale and (c) 50% of the
cash proceeds from the issuance or the sale by Holdings or any of its
Subsidiaries of any equity security of, or Equity Interests in, Holdings or such
Subsidiary (other than (i) sales of Equity Interests of Holdings to directors,
officers or employees of Holdings, the Borrower or any of their Subsidiaries in
connection with permitted employee compensation and incentive arrangements
("Employee Equity Sales"), (ii) the proceeds of Designated Capital Contributions
and Special Capital Contributions, (iii) sales of Equity Interests of Holdings
to the extent the net proceeds of such sales are used to fund permitted Capital
Expenditures or investments within six months after the receipt of such net
proceeds and (iv) proceeds of Permitted Cure Securities) net
-19-
of all taxes and fees (including investment banking fees), commissions, costs
and other expenses, in each case, incurred in connection with such issuance or
sale. For purposes of calculating the amount of Net Proceeds, fees, commissions
and other costs and expenses payable to Holdings or the Borrower or any
Affiliate of either of them shall be disregarded, except for financial advisory
fees customary in type and amount paid to Affiliates of The Blackstone Group
L.P. Notwithstanding anything in the contrary contained in this definition, if,
at the time of any prepayment required by Section 2.12 hereof, the Net Leverage
Ratio is less than 3.50 to 1.00 (as established pursuant to the certificate last
delivered (or required to be delivered) pursuant to Section 5.04(c)), the
percentages set forth in clauses (a), (b) and (c) above shall be deemed to be
75%, 100%, and 0%, respectively.
"New Senior Subordinated Note Documents" shall mean the New Senior
Subordinated Notes and the New Senior Subordinated Note Indenture.
"New Senior Subordinated Note Indenture" shall mean the Indenture dated
as of ______ __, 2002 among the Borrower, the Co-Borrower and the trustee named
therein from time to time, as in effect on the Closing Date and as thereafter
amended from time to time in accordance with the requirements thereof and of
this Agreement.
"New Senior Subordinated Notes" shall mean the Borrower's 8 3/4% Senior
Subordinated Notes due 2008 issued pursuant to the New Senior Subordinated Note
Indenture and any notes issued by the Borrower in exchange for, and as
contemplated by, the New Senior Subordinated Notes with substantially identical
terms as the New Senior Subordinated Notes.
"90% Subsidiary" means any person which is a Wholly Owned Subsidiary of
the Borrower or at least 90% of the Equity Interests of which are owned by the
Borrower and/or one or more Wholly Owned Subsidiaries of the Borrower.
"Notes" shall mean any promissory note of the Borrower issued pursuant
to this Agreement.
"Notes Refinancing" shall mean the repayment or refinancing in full of
the Borrower's Senior Subordinated Notes and New Senior Subordinated Notes (on
terms and conditions (including, without limitation, the terms and conditions of
the securities described in the following clauses (i) and (ii)) reasonably
satisfactory to the Agents) on or prior to January 15, 2007 with the proceeds of
(i) an equity issuance by Holdings or the Borrower and/or (ii) the issuance of
one or more unsecured subordinated debt instruments constituting Permitted
Refinancing Indebtedness without any scheduled principal payments due prior to
the first anniversary of the Term Loan Maturity Date.
"Obligations" shall mean all amounts owing to any of the Agents or any
Lender pursuant to the terms of this Agreement or any other Loan Document.
"Opco GP" shall mean GPC Opco GP, LLC, a Wholly Owned Subsidiary of
Holdings.
"Original Closing Date" shall mean the "Closing Date" under, and as
defined in, the Existing Credit Agreement.
-20-
"Other Hedging Agreement" shall mean any foreign exchange contracts,
currency swap agreements, commodity agreements or other similar agreements or
arrangements designed to protect against the fluctuations in currency or
commodity values.
"Other Taxes" shall have the meaning provided in Section 2.19(b).
"Parent Guarantee Agreement" shall mean the Parent Guarantee Agreement,
substantially in the form of Exhibit E, made by Holdings in favor of the
Collateral Agent for the benefit of the Secured Parties.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"Permitted Business Acquisition" shall mean any acquisition of all or
substantially all the assets of, or shares or other equity interests in, a
person or division or line of business of a person (or any subsequent investment
made in a previously acquired Permitted Business Acquisition) if immediately
after giving effect thereto: (a) no Default or Event of Default shall have
occurred and be continuing or would result therefrom, (b) all transactions
related thereto shall be consummated in accordance with applicable laws, (c) at
least 90% of the Equity Interests of any acquired or newly formed corporation,
partnership, association or other business entity are owned directly by the
Borrower or a domestic Wholly Owned Subsidiary of the Borrower which is a
Guarantor (unless there is a material tax or legal or other economic
disadvantage in not having a Foreign Subsidiary of the Borrower hold such Equity
Interests, in which case such Equity Interests may be held directly by a Foreign
Subsidiary of the Borrower) and all actions required to be taken, if any, with
respect to such acquired or newly formed Subsidiary under Section 5.11 shall
have been taken and (d)(i) Holdings, the Borrower and their Subsidiaries shall
be in compliance, on a Pro Forma Basis after giving effect to such acquisition
or formation, with the covenants contained in Sections 6.11 and 6.12 recomputed
as at the last day of the most recently ended fiscal quarter of Holdings, the
Borrower and their Subsidiaries as if such acquisition had occurred on the first
day of each relevant period for testing such compliance, and the Borrower shall
have delivered to the Administrative Agent an officers' certificate to such
effect, together with all relevant financial information for such Subsidiary or
assets, and (ii) any acquired or newly formed Subsidiary shall not be liable for
any Indebtedness (except for Indebtedness permitted by Section 6.01) and (e) the
aggregate amount of consideration paid in connection with any individual
Permitted Business Acquisition shall not exceed the Permitted Business
Acquisition Amount.
"Permitted Business Acquisition Amount" shall mean, for each Permitted
Business Acquisition, $40,000,000, provided that the Permitted Business
Acquisition Amount shall be increased with respect to a given Permitted Business
Acquisition (x) to the extent, and only to the extent, that the Borrower makes
an election to increase the Permitted Business Acquisition Amount for the
respective Permitted Business Acquisition, which increase shall only occur to
the extent that the Borrower so elects to apply amounts that would otherwise be
available to make Capital Expenditures at such time pursuant to, and in
accordance with the provisions of, Section 6.10(a) and (b), (y) to make payments
owing in connection with the respective Permitted Business Acquisition with the
proceeds of Designated Capital Contributions and/or (z) to the
-21-
extent the Borrower elects to apply amounts otherwise available pursuant to, and
in an amount not to exceed, the Available Investment Basket Amount at such time.
"Permitted Cure Security" means an equity security of Holdings having
no mandatory redemption, repurchase, repayment or similar requirements prior to
the date which occurs four calendar months after the Term Loan Maturity Date and
upon which all dividends or distributions, at the election of Holdings, may be
payable in additional shares of such equity security.
"Permitted Investments" shall mean: (a) direct obligations of the
United States of America or any agency thereof or obligations guaranteed by the
United States of America or any agency thereof; (b) time deposit accounts,
certificates of deposit and money market deposits maturing within 180 days of
the date of acquisition thereof issued by a bank or trust company which is
organized under the laws of the United States of America, any state thereof or
any foreign country recognized by the United States of America having capital,
surplus and undivided profits aggregating in excess of $250,000,000 (or the
foreign currency equivalent thereof) and whose long-term debt, or whose parent
holding company's long-term debt, is rated A (or such similar equivalent rating
or higher by at least one nationally recognized statistical rating organization
(as defined in Rule 436 under the Securities Act of 1933, as amended)); (c)
repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clause (a) above entered into with a bank
meeting the qualifications described in clause (b) above; (d) commercial paper,
maturing not more than 180 days after the date of acquisition, issued by a
corporation (other than an Affiliate of the Borrower) organized and in existence
under the laws of the United States of America or any foreign country recognized
by the United States of America with a rating at the time as of which any
investment therein is made of P-1 (or higher) according to Xxxxx'x Investors
Service, Inc., or A-1 (or higher) according to Standard & Poor's Ratings Group;
(e) securities with maturities of six months or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States of America, or by any political subdivision or taxing
authority thereof, and rated at least A by Standard & Poor's Ratings Group or A
by Xxxxx'x Investors Service, Inc.; (f) in the case of any Subsidiary organized
in a jurisdiction outside the United States: (i) direct obligations of the
sovereign nation (or any agency thereof) in which such Subsidiary is organized
and is conducting business or in obligations fully and unconditionally
guaranteed by such sovereign nation (or any agency thereof), (ii) investments of
the type and maturity described in clauses (a) through (e) above of foreign
obligors, which investments or obligors (or the parents of such obligors) have
ratings described in such clauses or equivalent ratings from comparable foreign
rating agencies or (iii) investments of the type and maturity described in
clauses (a) through (e) above of foreign obligors (or the parents of such
obligors), which investments or obligors (or the parents of such obligors) are
not rated as provided in such clauses or in clause (ii) above but which are, in
the reasonable judgment of the Borrower, comparable in investment quality to
such investments and obligors (or the parents of such obligors); (g) shares of
mutual funds whose investment guidelines restrict 95% of such funds' investments
to those satisfying the provisions of clauses (a) through (e) above; and (h)
time deposit accounts, certificates of deposit and money market deposits in an
aggregate face amount not in excess of 1/2 of 1% of total assets of Holdings and
its Subsidiaries, on a consolidated basis, as of the end of Holdings' most
recently completed fiscal year.
-22-
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Borrower or a Subsidiary of the Borrower issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund (collectively, to "Refinance"), Indebtedness permitted by Section 6.01(j)
or (x) (or previous refinancings thereof constituting Permitted Refinancing
Indebtedness) of the Borrower or such Subsidiary of the Borrower, as the case
may be, provided that (i) the principal amount (or accreted value, if
applicable) of such Permitted Refinancing Indebtedness does not exceed the
principal amount (or accreted value, if applicable) of the Indebtedness so
Refinanced (plus unpaid accrued interest and premium thereon), (ii) the average
life to maturity of such Permitted Refinancing Indebtedness is greater than or
equal to that of the Indebtedness being Refinanced, (iii) if the Indebtedness
being Refinanced is subordinated in right of payment to the Obligations under
this Agreement, such Permitted Refinancing Indebtedness shall be subordinated in
right of payment to such Obligations on terms at least as favorable to the
Lenders as those contained in the documentation governing the Indebtedness being
Refinanced, (iv) no Permitted Refinancing Indebtedness shall have different
obligors, or greater guarantees or security, than the Indebtedness being
Refinanced and (v) if the Indebtedness being Refinanced is secured by any
collateral (whether equally and ratably with, or junior to, the Secured Parties
or otherwise), such Permitted Refinancing Indebtedness may be secured by such
collateral (including any collateral pursuant to after-acquired property clauses
to the extent any such collateral secured the Indebtedness being Refinanced) on
terms no less favorable to the Secured Parties than those contained in the
documentation governing the Indebtedness being Refinanced.
"Permitted Tax Amount Distributions" shall mean distributions to
Holdings in amounts sufficient for Holdings to pay in a timely manner taxes
imposed on its, or any of its Subsidiaries', distributive share of income or
gain from the Borrower or taxes imposed on income or gain that is imputed to, or
recognized by, Holdings as a result of its direct or indirect ownership interest
in any Subsidiary of Holdings or the Borrower, as the case may be.
"person" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership, limited liability company or
government, individual or family trusts, or any agency or political subdivision
thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code and in respect of which the Borrower or any ERISA Affiliate is
(or, if such plan were terminated, would under Section 4069 of ERISA be deemed
to be) an "employer" as defined in Section 3(5) of ERISA.
"Pledge Agreement" shall mean, collectively, the Pledge Agreement,
substantially in the form of Exhibit F, among Holdings, the Borrower, each
Subsidiary Guarantor and the Collateral Agent for the benefit of the Secured
Parties and each other document delivered on the Closing Date (or thereafter
pursuant to Section 5.11) pursuant to which Holdings, the Borrower or any of
their domestic Subsidiaries pledged Equity Interests of any of their Foreign
Subsidiaries to secure the Obligations.
"Pledge Agreement Collateral" shall mean all "Collateral" as defined in
the Pledge Agreement.
-23-
"primary obligor" shall have the meaning given such term in the
definition of Guarantee.
"Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective on the date such change is publicly announced as being
effective.
"Pro Forma Basis" shall mean, as to any person, for any events as
described in clauses (ii) and (iii) below which occur subsequent to the
commencement of a period for which the financial effect of such events is being
calculated, and giving effect to the events for which such calculation is being
made, such calculation as will give pro forma effect to such events as if same
had occurred at the beginning of such period of calculation, and
(i) for purposes of the foregoing calculation, each transaction giving
rise to the need to calculate the pro forma effect to any of the following
events shall be assumed to have occurred on the first day of the four
consecutive fiscal quarter period last ended on or before the occurrence of
the respective event for which such pro forma effect is being determined
(the "Reference Period");
(ii) in making any determination of EBITDA, pro forma effect shall be
given to any Asset Disposition and to any Permitted Business Acquisition
(or any similar transaction or transactions which require a waiver or
consent of the Required Lenders pursuant to Section 6.05), in each case
which occurred during the Reference Period (or, in the case of
determinations made pursuant to the definition of Permitted Business
Acquisition contained herein, occurring during the Reference Period or
thereafter and through and including the date upon which the respective
Permitted Business Acquisition is consummated) as if such Asset
Disposition, Permitted Business Acquisition or other transaction, as the
case may be, occurred on the first day of the Reference Period; and
(iii) in making any determination on a Pro Forma Basis, (x) all
Indebtedness (including Indebtedness incurred or assumed and for which the
financial effect is being calculated, whether incurred under this Agreement
or otherwise, but excluding normal fluctuations in revolving indebtedness
incurred for working capital purposes and not to finance any acquisition)
incurred or permanently repaid during the Reference Period (or, in the case
of determinations made pursuant to the definition of Permitted Business
Acquisition contained herein, occurring during the Reference Period or
thereafter and through and including the date upon which the respective
Permitted Business Acquisition is consummated) shall be deemed to have been
incurred or repaid at the beginning of such period and (y) Interest Expense
of such person attributable to interest on any Indebtedness, for which pro
forma effect is being given as provided in preceding clause (x), bearing
floating interest rates shall be computed on a pro forma basis as if the
rates which would have been in effect during the period for which pro forma
effect is being given had been actually in effect during such periods.
Pro forma calculations made pursuant to the definition of Pro Forma
Basis shall be determined in good faith by a Responsible Officer of the Borrower
and may include
-24-
adjustments, in the reasonable determination of the Borrower as set forth in an
officers' certificate, to (i) reflect operating expense reductions reasonably
expected to result from any acquisition, merger or Asset Disposition or (ii)
eliminate the effect of any extraordinary accounting event with respect to any
acquired person or assets on Consolidated Net Income.
"Properties" shall have the meaning given such term in Section 3.17(a).
"Reference Period" shall have the meaning provided in the definition of
Pro Forma Basis.
"Refinancing" shall have the meaning given such term in the preamble of
this Agreement.
"Refunded Swingline Loans" shall have the meaning provided in Section
2.01(c)(iii).
"Register" shall have the meaning given such term in Section 9.04(c).
"Regulation D" shall mean Regulation D of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Release" shall have the meaning given such term in CERCLA, 42
U.S.C.(Section) 9601(22).
"Remaining Present Value" shall mean, as of any date with respect to
any lease, the present value as of such date of the scheduled future lease
payments with respect to such lease, determined with a discount rate equal to a
market rate of interest for such lease reasonably determined at the time such
lease was entered into.
"Remedial Action" shall mean (a) "remedial action" as such term is
defined in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions,
including studies and investigations, required by any Governmental Authority or
voluntarily undertaken to (i) clean up, remove, treat, xxxxx or in any other way
respond to any Hazardous Material in the environment or (ii) prevent the Release
or threatened Release, or minimize the further Release, of any Hazardous
Material.
"Reportable Event" shall mean any reportable event as defined in
Section 4043 of ERISA or the regulations issued thereunder (other than those
events as to which the thirty day notice period is waived) with respect to a
Plan (other than a Plan maintained by an ERISA Affiliate that is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414).
-25-
"Required Lenders" shall mean, at any time, Lenders having Loans (other
than Swingline Loans), Revolving L/C Exposures, Swingline Exposures and unused
Commitments (excluding commitments to issue Letters of Credit or make Swingline
Loans) representing more than 50% of the sum of all Loans (other than Swingline
Loans) outstanding, Revolving L/C Exposures, Swingline Exposures and unused
Commitments (excluding commitments to issue Letters of Credit or make Swingline
Loans) at such time. The Loans, Revolving L/C Exposures, Swingline Exposures and
unused Commitments of any Defaulting Lender shall be disregarded in determining
Required Lenders at any time.
"Responsible Officer" of any person shall mean any executive officer or
Financial Officer of such person and any other officer or similar official
thereof responsible for the administration of the obligations of such
corporation in respect of this Agreement.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of
Revolving Loans.
"Revolving Credit Commitment" shall mean, with respect to each Lender,
the amount set forth opposite such Lender's name on Schedule 2.01 directly below
the column entitled "Revolving Credit Commitment" or in the Assignment and
Acceptance pursuant to which such Lender assumed its Revolving Credit
Commitment, as applicable, as the same may be reduced from time to time pursuant
to Section 2.09 and pursuant to assignments by such Lender pursuant to Section
9.04.
"Revolving Credit Exposure" shall mean, with respect to any Lender at
any time, the aggregate principal amount at such time of all outstanding
Revolving Loans of such Lender plus the amount at such time of such Lender's
Revolving L/C Exposure plus the amount at such time of such Lender's Swingline
Exposure.
"Revolving Credit Lender" shall mean a Lender with a Revolving Credit
Commitment.
"Revolving Credit Maturity Date" shall mean the earlier of (i) ______
__, 2007, and (ii) the Term Loan Maturity Date.
"Revolving L/C Commitment" shall mean, with respect to any Fronting
Bank, the commitment of such Fronting Bank to issue Letters of Credit pursuant
to Section 2.20(a).
"Revolving L/C Exposure" shall mean at any time the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit at such time plus
(b) the aggregate principal amount of all L/C Disbursements that have not yet
been reimbursed at such time. The Revolving L/C Exposure of any Revolving Credit
Lender at any time shall mean its Applicable Percentage of the aggregate
Revolving L/C Exposure at such time.
"Revolving Loans" shall mean the revolving loans made by the Lenders to
the Borrower pursuant to Section 2.01(b). Each Revolving Loan shall be a
Eurodollar Revolving Loan or an ABR Revolving Loan.
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"Sale and Lease-Back Transaction" shall have the meaning given such
term in Section 6.03.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Secured Parties" shall have the meaning given such term in the
Security Agreement.
"Security Agreement" shall mean the Security Agreement, substantially
in the form of Exhibit G, among Holdings, the Borrower, each Subsidiary
Guarantor and the Collateral Agent for the benefit of the Secured Parties.
"Security Agreement Collateral" shall mean "Collateral" as defined in
the Security Agreement.
"Security Documents" shall mean the Mortgages, the Security Agreement,
the Pledge Agreement, and each of the security agreements, mortgages and other
instruments and documents executed and delivered pursuant to any of the
foregoing or pursuant to Section 5.11.
"Senior Subordinated Note Documents" shall mean the Senior Subordinated
Notes and the Senior Subordinated Note Indenture.
"Senior Subordinated Note Indenture" shall mean the Indenture dated as
of February 2, 1998 among the Borrower, the Co-Borrower and the trustee named
therein from time to time, as in effect on the Original Closing Date and as
thereafter amended from time to time in accordance with the requirements thereof
and of this Agreement.
"Senior Subordinated Notes" shall mean the Borrower's 8 3/4% Senior
Subordinated Notes due 2008 and its Floating Interest Rate Subordinated Term
Securities due 2008 issued pursuant to the Senior Subordinated Note Indenture
and any notes issued by the Borrower in exchange for, and as contemplated by,
the Senior Subordinated Notes with substantially identical terms as the Senior
Subordinated Notes.
"Sole Lead Arranger" shall have the meaning given such term in the
introductory paragraph of this Agreement.
"Special Capital Contributions" shall mean any cash common equity
contributions made after the Closing Date by the Designated Investors directly
or indirectly to Holdings (which cash equity contributions are, in turn,
contributed by Holdings to the Borrower) so long as (x) the respective
Designated Investor shall have elected in writing delivered to the
Administrative Agent prior to the making of the respective cash common equity
contribution to designate same as "Special Capital Contributions" for all
purposes under this Agreement and the other Loan Documents and (y) all proceeds
of the respective cash common equity contribution are immediately used by the
Borrower to prepay outstanding principal of Term Loans (in which case, such
prepayments shall be made pursuant to Section 2.12(c) (and in accordance with
paragraph (b) of Section 2.11)), Swingline Loans and/or Revolving Credit
Borrowings. For avoidance of doubt, it is understood and agreed that in no event
shall (x) any amounts
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contributed pursuant to the exercise of Cure Rights pursuant to Section 7.02 or
(y) any amounts received from the issuance and sale of common equity of Holdings
through one or more registered public offerings thereof, be deemed to constitute
(in whole or in part) Special Capital Contributions.
"Standby Letter of Credit" shall mean an irrevocable standby letter of
credit under which a Fronting Bank agrees to make payments in Dollars for the
account of the Borrower, on behalf of the Borrower or any of its Subsidiaries.
"Statutory Reserves" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board and any other banking authority, domestic or foreign,
to which the Administrative Agent is subject with respect to Eurocurrency
Liabilities (as defined in Regulation D of the Board) or other categories of
liabilities or deposits by reference to which the LIBO Rate is determined. Such
reserve percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute Eurocurrency Liabilities and to
be subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to any
Lender under such Regulation D. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Subject Property" shall have the meaning provided in the definition of
Xxxxxx County Bond Transaction.
"Subsidiary" shall mean, with respect to any person (herein referred to
as the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, directly or indirectly, owned, Controlled or held, or (b) that
is, at the time any determination is made, otherwise Controlled, by the parent
or one or more subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent. Unless the context otherwise indicates, all
references herein to a "Subsidiary" are references to a subsidiary of Holdings.
"Subsidiary Guarantee Agreement" shall mean the Subsidiary Guarantee
Agreement, substantially in the form of Exhibit H, to be entered into by the
Subsidiary Guarantors pursuant to and in accordance with the terms of Section
5.11 in favor of the Collateral Agent for the benefit of the Secured Parties.
"Subsidiary Guarantor" shall mean each domestic Subsidiary of Holdings
designated as a "Subsidiary Guarantor" on Schedule 3.08 hereto or which executes
the Subsidiary Guarantee Agreement pursuant to and in accordance with the terms
of Section 5.11.
"Supermajority Lenders" of any Tranche shall mean those Lenders which
would constitute the Required Lenders under, and as defined in, this Agreement
if (x) all outstanding Obligations of the other Tranches under this Agreement
were repaid in full and all Commitments
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with respect thereto were terminated and (y) the percentage "50%" contained
therein were changed to "66-2/3%".
"Swingline Exposure" shall mean at any time the aggregate principal
amount of all outstanding Swingline Loans at such time. The Swingline Exposure
of any Revolving Credit Lender at any time shall mean its Applicable Percentage
of the aggregate Swingline Exposure at such time.
"Swingline Lender" shall mean Deutsche Bank Trust Company Americas
(f/k/a Bankers Trust Company) in its capacity as Swingline Lender hereunder.
"Swingline Loan Commitment" shall mean the commitment of the Swingline
Lender to make Swingline Loans as set forth in Section 2.01(c).
"Swingline Loans" shall mean the swingline loans made by the Swingline
Lender to the Borrower pursuant to Section 2.01(c).
"Syndication Agent" shall have the meaning given such term in the
introductory paragraph of this Agreement.
"Syndication Date" shall mean that date upon which the Administrative
Agent determines in its sole discretion (and notifies the Borrower) that the
primary syndication (and resultant addition of institutions as Banks pursuant to
Section 9.04) has been completed.
"Taxes" shall have the meaning provided in Section 2.19(a).
"Tender Offer" shall have the meaning given such term in the preamble
to this Agreement.
"Term Borrowing" shall mean a Borrowing comprised of Term Loans.
"Term Loan Commitment" shall mean with respect to each Lender, the
commitment of such Lender to make Term Loans hereunder as set forth in Section
2.01(a)(i), as the same may be reduced from time to time pursuant to Section
2.09.
"Term Loan Installment Date" shall have the meaning provided in Section
2.11(a).
"Term Loan Maturity Date" shall mean ______ __, 2009, provided that if
the Notes Refinancing has not been consummated prior to January 15, 2007 or any
Permitted Cure Securities are issued that require any mandatory redemption,
repurchase, repayment or similar requirement earlier than the date occurring
four calendar months after the date first appearing in this definition, then the
Term Loan Maturity Date shall be July 15, 2007.
"Term Loans" shall mean the term loans made by the Lenders to the
Borrower pursuant to Section 2.01(a). Each Term Loan shall be a Eurodollar Term
Loan or an ABR Term Loan.
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"Test Period" shall mean, on any date of determination, the period of
four consecutive fiscal quarters of the Borrower then last ended (taken as one
accounting period).
"Total Debt" shall mean, with respect to any person and its
Subsidiaries on a consolidated basis at any time (without duplication), all
Indebtedness consisting of Capital Lease Obligations, Indebtedness for borrowed
money and Indebtedness in respect of the deferred purchase price of property or
services of such person and its Subsidiaries on a consolidated basis at such
time.
"Total Net Debt" at any date shall mean Total Debt of the Borrower and
its Subsidiaries determined on a consolidated basis on such date minus the
aggregate amount of cash and cash equivalents in excess of $5,000,000 set forth
on the consolidated balance sheet of the Borrower and its Subsidiaries prepared
as of such date; provided that to the extent any Holdings Discount Notes remain
outstanding after March 31, 2003, the aggregate principal amount of such
Holdings Discount Notes shall be deemed to be Indebtedness of the Borrower for
the purposes of calculating "Total Net Debt"; provided, further, that in
determining the aggregate amount of cash and cash equivalents in excess of
$5,000,000 as provided above, such determination shall be made without giving
effect to any cash or cash equivalents constituting (in whole or in part)
Designated Capital Contributions or proceeds thereof.
"Total Revolving Credit Commitment" shall mean, at any time, the
aggregate amount of the Revolving Credit Commitments, as in effect at such time.
"Tranche" shall mean the respective facility and commitments utilized
in making Loans hereunder, with there being three separate Tranches, i.e., Term
Loans, Revolving Loans and Swingline Loans.
"Transaction" shall have the meaning given such term in the preamble to
this Agreement.
"Type", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, the term "Rate" shall include
the Adjusted LIBO Rate and the Alternate Base Rate.
"Wholly Owned Subsidiary" of any person means a Subsidiary of such
person, at least 99% of the Equity Interests of which (other than directors'
qualifying shares) are owned by such person or another Wholly Owned Subsidiary.
Unless the context otherwise indicates, all references herein to a "Wholly Owned
Subsidiary" are references to a Wholly Owned Subsidiary of Holdings.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Working Capital" shall mean, with respect to the Borrower and its
Subsidiaries on a consolidated basis at any date of determination, Current
Assets at such date of determination minus Current Liabilities at such date of
determination.
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SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided, however, that for purposes of determining compliance
with the covenants contained in Section 2.12(d) and Article VI all accounting
terms herein shall be interpreted and all accounting determinations hereunder
(in each case, unless otherwise provided for or defined herein) shall be made in
accordance with GAAP as in effect on the date of this Agreement and applied on a
basis consistent with the application used in the financial statements referred
to in Section 3.05 (other than, at the option of Holdings and the Borrower, with
respect to capitalization of repair and maintenance expenses in accordance with
the parenthetical appearing in the definition of GAAP contained herein); and
provided further, that if the Borrower notifies the Administrative Agent that
the Borrower wishes to amend any covenant in Section 2.12(d) or Article VI or
any related definition to eliminate the effect of any change in GAAP occurring
after the date of this Agreement on the operation of such covenant (or if the
Administrative Agent notifies the Borrower that the Required Lenders wish to
amend Section 2.12(d) or Article VI or any related definition for such purpose),
then (i) the Borrower and the Administrative Agent shall negotiate in good faith
to agree upon an appropriate amendment to such covenant and (ii) the Borrower's
compliance with such covenant shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective until such
covenant is amended in a manner satisfactory to the Borrower and the Required
Lenders. For the purposes of determining compliance under Sections 6.01, 6.02,
6.04, 6.05 and 6.10 with respect to any amount in a currency other than Dollars,
such amount shall be deemed to equal the Dollar equivalent thereof at the time
such amount was incurred or expended, as the case may be.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments. (a) Subject to the terms and conditions and
relying upon the representations and warranties of Holdings and the Borrower
herein set forth, each Lender agrees, severally and not jointly to make a Term
Loan to the Borrower on the Closing Date, in a principal amount not to exceed
the Term Loan Commitment set forth opposite its name on Schedule 2.01, as the
same may be reduced from time to time pursuant to Section 2.09.
(b) Subject to the terms and conditions and relying upon the
representations and warranties of Holdings and the Borrower herein set forth,
each Lender agrees, severally and not jointly, to make Revolving Loans to the
Borrower, at any time and from time to time on or after the date hereof, and
until the earlier of the Revolving Credit Maturity Date and the termination of
the Revolving Credit Commitment of such Lender in accordance with the terms
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hereof, in an aggregate principal amount at any time outstanding that will not
result in such Lender's Revolving Credit Exposure at such time exceeding the
Revolving Credit Commitment of such Lender at such time, as the same may be
reduced from time to time pursuant to Section 2.09, provided that the aggregate
principal amount of Revolving Loans made to the Borrower on the Closing Date
shall not exceed $5,000,000 (or such other amount as may be agreed to by the
Borrower and the Agents).
(c) (i) The Swingline Lender hereby agrees, subject to the terms and
conditions and relying upon the representations and warranties of Holdings and
the Borrower herein set forth, and subject to the limitations set forth below
with respect to the maximum amount of Swingline Loans permitted to be
outstanding from time to time, to make a portion of the Revolving Credit
Commitments available to the Borrower from time to time during the period from
the Closing Date through and excluding the earlier of the Revolving Credit
Maturity Date and the termination of the Revolving Credit Commitments in an
aggregate principal amount not to exceed the Swingline Loan Commitment, by
making Swingline Loans to the Borrower. Swingline Loans may be made
notwithstanding the fact that such Swingline Loans, when aggregated with the
Swingline Lender's outstanding Revolving Loans, Revolving L/C Exposure and
outstanding Swingline Loans, may exceed the Swingline Lender's Revolving Credit
Commitment. The original amount of the Swingline Loan Commitment is $20,000,000.
The Swingline Loan Commitment shall expire on the date the Revolving Credit
Commitments are terminated and all Swingline Loans and all other amounts owed
hereunder with respect to Swingline Loans shall be paid in full no later than
that date. The Borrower shall give the Swingline Lender telephonic, written or
telecopy notice (in the case of telephonic notice, such notice shall be promptly
confirmed in writing or by telecopy) not later than 12:00 (noon), New York City
time, on the day of a proposed borrowing. Such notice shall be delivered on a
Business Day, shall be irrevocable and shall refer to this Agreement and shall
specify the requested date (which shall be a Business Day) and amount of such
Swingline Loan. The Swingline Lender shall give the Administrative Agent, which
shall in turn give to each Lender, prompt written or telecopy advice of any
notice received from the Borrower pursuant to this paragraph.
(ii) In no event shall (A) the aggregate principal amount of Swingline
Loans outstanding at any time exceed the aggregate Swingline Loan Commitment in
effect at such time, (B) the Aggregate Revolving Credit Exposure at any time
exceed the Total Revolving Credit Commitment at such time or (C) the aggregate
Swingline Loan Commitment exceed at any time the aggregate Revolving Credit
Commitments in effect at such time. Swingline Loans may only be made as ABR
Loans.
(iii) With respect to any Swingline Loans that have not been
voluntarily prepaid by the Borrower, the Swingline Lender (by request to the
Administrative Agent) or Administrative Agent at any time may, in its sole
discretion, on one Business Day's notice, require each Revolving Credit Lender,
including the Swingline Lender, and each such Lender hereby agrees, subject to
the provisions of this Section 2.01(c), to make a Revolving Loan (which shall be
funded as an ABR Loan) in an amount equal to such Lender's Applicable Percentage
of the amount of the Swingline Loans ("Refunded Swingline Loans") outstanding on
the date notice is given which the Swingline Lender requests the Lenders to
prepay.
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(iv) In the case of Revolving Loans made by Lenders other than the
Swingline Lender under the immediately preceding paragraph (iii), each such
Lender shall make the amount of its Revolving Loan available to the
Administrative Agent, in same day funds, at the office of the Administrative
Agent located at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, not later than 1:00
p.m., New York City time, on the Business Day next succeeding the date such
notice is given. The proceeds of such Revolving Loans shall be immediately
delivered to the Swingline Lender (and not to the Borrower) and applied to repay
the Refunded Swingline Loans. On the day such Revolving Loans are made, the
Swingline Lender's Applicable Percentage of the Refunded Swingline Loans shall
be deemed to be paid with the proceeds of a Revolving Loan made by the Swingline
Lender and such portion of the Swingline Loans deemed to be so paid shall no
longer be outstanding as Swingline Loans and shall be outstanding as a Revolving
Loan of the Swingline Lender. The Borrower authorizes the Administrative Agent
and the Swingline Lender to charge the Borrower's account with the
Administrative Agent (up to the amount available in such account) in order to
pay immediately to the Swingline Lender the amount of such Refunded Swingline
Loans to the extent amounts received from Lenders, including amounts deemed to
be received from the Swingline Lender, are not sufficient to repay in full such
Refunded Swingline Loans. If any portion of any such amount paid (or deemed to
be paid) to the Swingline Lender should be recovered by or on behalf of the
Borrower from the Swingline Lender in bankruptcy, by assignment for the benefit
of creditors or otherwise, the loss of the amount so recovered shall be ratably
shared among all Lenders in the manner contemplated by Section 2.17. Subject to
the compliance by the Swingline Lender with the provisions of subparagraph (vii)
below, each Lender's obligation to make the Revolving Loans referred to in this
paragraph shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or
other right that such Lender may have against the Swingline Lender, the Borrower
or any other person for any reason whatsoever; (B) the occurrence or continuance
of an Event of Default or a Default; (C) any adverse change in the condition
(financial or otherwise) of Holdings or any of its Subsidiaries; (D) any breach
of this Agreement by Holdings, the Borrower or any other Lender; or (E) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing. Nothing in this Section 2.01(c) shall be deemed to relieve any
Lender from its obligation to fulfill its Commitments hereunder or to prejudice
any rights that the Borrower may have against any Lender as a result of any
default by such Lender hereunder.
(v) A copy of each notice given by the Swingline Lender or the
Administrative Agent pursuant to this Section 2.01(c) shall be promptly
delivered by the Swingline Lender to the Administrative Agent and the Borrower.
Upon the making of a Revolving Loan by a Lender pursuant to this Section
2.01(c), the amount so funded shall no longer be owed in respect of Swingline
Loans.
(vi) To the extent any Swingline Loans are outstanding on any date when
one of the events described in Section 7.01(h) or (i) shall have occurred, each
Revolving Credit Lender will, on such date, purchase an undivided participating
interest in the Refunded Swingline Loans (determined as if the notice specified
in clause (c)(iii) of this Section 2.01 had in fact been given with respect to
all then outstanding Swingline Loans) in an amount equal to its Applicable
Percentage of such Refunded Swingline Loans. Each such Lender will immediately
transfer to the Swingline Lender in immediately available funds, the amount of
its participation. Upon one Business Day's notice from the Swingline Lender,
each Revolving Credit Lender shall deliver to
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the Swingline Lender an amount equal to its respective participation in same day
funds at the office of the Swingline Lender in New York, New York. In order to
evidence such participation each Revolving Credit Lender agrees to enter into a
participation agreement at the request of the Swingline Lender in form and
substance reasonably satisfactory to all parties. In the event any Revolving
Credit Lender fails to make available to the Swingline Lender the amount of such
Revolving Credit Lender's participation as provided in this Section 2.01(c), the
Swingline Lender shall be entitled to recover such amount on demand from such
Revolving Credit Lender together with interest at the customary rate set by the
Swingline Lender for correction of errors among banks in New York City for one
Business Day and thereafter at the Alternate Base Rate plus the ABR Margin then
in effect as set forth on Schedule A.
(vii) Notwithstanding anything herein to the contrary, the Swingline
Lender shall not make any Swingline Loans at any time the Swingline Lender is
aware that the conditions to the making of such Swingline Loan set forth in
Section 4.01 have not been satisfied unless such conditions shall have been
waived in accordance with this Agreement.
(d) Within the limits set forth in paragraphs (b) and (c) above, (x)
the Borrower may borrow, pay or prepay (including pursuant to a refinancing
permitted by Section 2.02(f)) and reborrow Revolving Loans and Swingline Loans
on or after the Closing Date and prior to the Revolving Credit Maturity Date
subject to the terms, conditions and limitations set forth herein. Amounts paid
or prepaid in respect of Term Loans may not be reborrowed.
SECTION 2.02. Loans. (a) Each Loan shall be made as part of a Borrowing
consisting of Loans made by the Lenders ratably in accordance with their
applicable Commitments; provided, however, that the failure of any Lender to
make any Loan shall not relieve any other Lender of its obligation to lend
hereunder (it being understood, however, that no Lender shall be responsible for
the failure of any other Lender to make any Loan required to be made by such
other Lender). The Loans comprising any Borrowing shall be in an aggregate
principal amount which is (i) an integral multiple of $1,000,000 (or, in the
case of Swingline Loans, $500,000) and not less than $2,000,000 (or, in the case
of Swingline Loans, $500,000) or (ii) equal to the remaining available balance
of the applicable Commitments, provided that Revolving Loans used to pay
Refunded Swingline Loans may be in the amount of such Refunded Swingline Loans.
(b) Subject to Sections 2.08 and 2.14, each Borrowing shall be
comprised entirely of ABR Loans or (except in the case of Swingline Loans or as
set forth in the second proviso to this sentence) Eurodollar Loans as the
Borrower may request pursuant to Section 2.03. Each Lender may at its option
make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate
of such Lender to make such Loan, provided that any exercise of such option
shall not affect the obligation of the Borrower to repay such Loan in accordance
with the terms of this Agreement and such Lender shall not be entitled to any
amounts payable under Section 2.13 or Section 2.19 in respect of increased costs
arising as a result of such exercise, provided, further, that prior to the
earlier of (x) the 45th day after the Closing Date and (y) the Syndication Date,
the following restrictions shall apply to each Tranche: (I) no Loans may be
incurred as Eurodollar Loans prior to the fifth day after the Closing Date and
(II) no more than one borrowing of Revolving Loans and one borrowing of Term
Loans may be incurred as Eurodollar Loans, each of which borrowings of
Eurodollar Loans shall be incurred (whether directly or by
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way of conversion of ABR Loans) on the fifth day after the Closing Date and have
a one month Interest Period (it being understood that if the one month Interest
Period with respect to the Eurodollar Loans described in clause (II) above shall
have ended prior to the occurrence of the Syndication Date, the Borrower may
continue such Eurodollar Borrowing (and may on the first day of the respective
Interest Period convert any outstanding ABR Loans into Eurodollar Loans),
provided that the Interest Period for such continued borrowings shall be one
month). Borrowings of more than one Type may be outstanding at the same time;
provided, however, that the Borrower shall not be entitled to request any
Borrowing that, if made, would result in more than 20 Eurodollar Borrowings
outstanding hereunder at any time. For purposes of the foregoing, Borrowings
having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Borrowings.
(c) Subject to paragraph (f) below, each Lender shall make each Loan to
be made by it hereunder on the proposed date thereof by wire transfer to such
account as the Administrative Agent may designate in federal funds not later
than 11:00 a.m., New York City time, and the Administrative Agent shall by 12:00
(noon), New York City time, (a) in the case of any Loan made to reimburse any
L/C Disbursement or to refund any Swingline Loan, apply the amounts so received
to effect such reimbursement or refund as contemplated by Section 2.20 or
Section 2.01(c) and (b) in the case of each Loan the proceeds of which are to be
received by the Borrower, credit the amounts so received to an account
designated by the Borrower in the applicable Borrowing Request; provided,
however, that if a Borrowing shall not occur on such date because any condition
precedent herein specified shall not have been met, the Administrative Agent
shall return the amounts so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and may, in reliance upon such assumption,
make available to the Borrower on such date a corresponding amount. If the
Administrative Agent shall have so made funds available then, to the extent that
such Lender shall not have made such portion available to the Administrative
Agent, such Lender and the Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Administrative Agent,
at (i) in the case of the Borrower, the interest rate applicable at the time to
the Loans comprising such Borrowing and (ii) in the case of such Lender, a rate
determined by the Administrative Agent to represent its cost of overnight or
short-term funds (which determination shall be conclusive absent manifest
error). If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount shall constitute such Lender's Loan as part of
such Borrowing for purposes of this Agreement.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request any Borrowing if the Interest Period requested
with respect thereto would end after the Term Loan Maturity Date or Revolving
Credit Maturity Date, as applicable.
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(f) The Borrower may refinance all or any part of a Revolving Credit
Borrowing with another Revolving Credit Borrowing. Any Revolving Credit
Borrowing (or part thereof) so refinanced shall be deemed to be repaid or
prepaid in accordance with the applicable provisions of this Agreement with the
proceeds of the new Revolving Credit Borrowing and the proceeds of such new
Borrowing, to the extent they do not exceed the principal amount of the
Borrowing being refinanced, shall not be paid by the Lenders to the
Administrative Agent or by the Administrative Agent to the Borrower pursuant to
paragraph (c) above.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing, the
Borrower shall hand deliver or telecopy to the Administrative Agent a duly
completed Borrowing Request substantially in the form of Exhibit B (a) in the
case of a Eurodollar Borrowing, not later than 12:00 (noon), New York City time,
three Business Days before a proposed Borrowing, and (b) in the case of an ABR
Borrowing, not later than 12:00 noon, New York City time, one Business Day
before a proposed Borrowing; provided, however, that Borrowing Requests with
respect to Borrowings to be made on the Closing Date may, at the discretion of
the Administrative Agent, be delivered later than the times specified above.
Each Borrowing Request shall be irrevocable, shall be signed by or on behalf of
the Borrower and shall specify the following information: (i) whether the
Borrowing then being requested is to be a Term Borrowing or a Revolving Credit
Borrowing, and whether such Borrowing is to be a Eurodollar Borrowing or an ABR
Borrowing; (ii) the date of such Borrowing (which shall be a Business Day);
(iii) in the case of a Borrowing the proceeds of which are to be received by the
Borrower, the number and location of the account to which funds are to be
disbursed (which shall be an account that complies with the requirements of
Section 2.02(c)); (iv) the amount of such Borrowing; and (v) if such Borrowing
is to be a Eurodollar Borrowing, the Interest Period with respect thereto;
provided, however, that, notwithstanding any contrary specification in any
Borrowing Request, each requested Borrowing shall comply with the requirements
set forth in Section 2.02. If no election as to the Type of Borrowing is
specified in any such notice, then the requested Borrowing shall be an ABR
Borrowing. If no Interest Period with respect to any Eurodollar Borrowing is
specified in any such notice, then the Borrower shall be deemed to have selected
an Interest Period of one month's duration. The Administrative Agent shall
promptly (and in any event on the same day that the Administrative Agent
receives such notice, if received by 1:00 p.m., New York City time, on such day)
advise the applicable Lenders of any notice given pursuant to this Section 2.03
and of each Lender's portion of the requested Borrowing.
If the Borrower shall not have delivered a Borrowing Request in
accordance with this Section 2.03 prior to the end of the Interest Period then
in effect for any Revolving Credit Borrowing requesting that such Borrowing be
refinanced, then the Borrower shall (unless the Borrower has notified the
Administrative Agent, not less than three Business Days prior to the end of such
Interest Period, that such Borrowing is to be repaid at the end of such Interest
Period) be deemed to have delivered a Borrowing Request requesting that such
Borrowing be refinanced with a new Borrowing of equivalent amount, and such new
Borrowing shall be an ABR Borrowing.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The outstanding
principal balance of each Loan shall be payable (i) in the case of a Term Loan,
as provided in Section 2.11 and (ii) in the case of a Revolving Loan or a
Swingline Loan, on the Revolving
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Credit Maturity Date. Each Loan shall bear interest from the date of the first
Borrowing hereunder on the outstanding principal balance thereof as set forth in
Section 2.06.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness to such Lender resulting from
each Loan made by such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time under
this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type of each Loan made
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) and (c) of this Section 2.04 shall be prima facie evidence of the existence
and amounts of the obligations therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligations of the Borrower
to repay the Loans in accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, upon the
request of any Lender, the Borrower will duly execute and deliver to such lender
a promissory note or notes evidencing the Loans made to such Lender hereunder
and the interests represented by such Note or Notes shall at all times
(including after any assignment of all or part of such interests pursuant to
Section 9.04) be represented by one or more Notes payable to the payee named
therein or its registered assigns.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each Lender
(other than any Defaulting Lender), through the Administrative Agent, on the
last day of March, June, September and December in each year, and on the date on
which the Commitments of all the Lenders shall be terminated as provided herein,
a commitment fee (a "Commitment Fee") on the average daily unused amount of the
Commitments of such Lender during the preceding quarter (or other period ending
with the date on which the last of the Commitments of such Lender shall be
terminated) at either (i) a rate equal to 0.50% per annum or (ii) for any such
period commencing on or after the date of the Borrower's delivery to the
Administrative Agent of the Borrower's consolidated financial statements for the
fiscal quarter ending closest to December 31, 2002, at the rate per annum
effective for each day in such period as set forth on Schedule A. All Commitment
Fees shall be computed on the basis of the actual number of days elapsed in a
year of 360 days. For the purpose of calculating any Lender's Commitment Fee,
the outstanding Swingline Loans during the period for which such Lender's
Commitment Fee is calculated shall be deemed to be zero. The Commitment Fee due
to each Lender shall commence to accrue on the Closing Date and shall cease to
accrue on the date on which the last of the Commitments of such Lender shall be
terminated as provided herein.
(b) The Borrower from time to time agrees to pay (i) to each Revolving
Credit Lender (other than any Defaulting Lender), through the Administrative
Agent, on the last day of
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March, June, September and December of each year and on the date on which the
Revolving Credit Commitments of all the Lenders shall be terminated as provided
herein, a fee (an "L/C Participation Fee") on such Lender's Applicable
Percentage of the daily aggregate Revolving L/C Exposure (excluding the portion
thereof attributable to unreimbursed L/C Disbursements), during the preceding
quarter (or shorter period commencing with the date hereof or ending with the
Revolving Credit Maturity Date or the date on which the Revolving Credit
Commitments shall be terminated) at the rate per annum equal to the LIBOR Margin
effective for each day in such period for Revolving Loans as set forth on
Schedule A and (ii) to the respective Fronting Bank, for its own account, (x) on
the last day of March, June, September and December of each year and on the date
on which the Revolving Credit Commitments of all the Lenders shall be terminated
as provided herein, a facing fee in respect of each Letter of Credit issued for
its account hereunder for the period from and including the date of issuance of
such Letter of Credit to and including the termination of such Letter of Credit,
computed at a rate equal to 1/4 of 1% per annum of the daily stated amount of
such Letter of Credit; provided that in no event shall the annual amount of such
facing fee with respect to any Letter of Credit be less than $500, plus, (y) in
connection with the issuance, amendment or transfer of any such Letter of Credit
or any L/C Disbursement thereunder, such Fronting Bank's customary documentary
and processing charges (collectively, the "Fronting Bank Fees"). All L/C
Participation Fees and Fronting Bank Fees that are payable on a per annum basis
shall be computed on the basis of the actual number of days elapsed in a year of
360 days.
(c) The Borrower agrees to pay to the Administrative Agent, for its own
account, the fees set forth in the Fee Letter dated as of June 7, 2002 at the
times specified therein (the "Administrative Agent Fees").
(d) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the Fronting Bank Fees shall be paid directly to
the Fronting Bank to which such Fees are owed. Once paid, none of the Fees shall
be refundable under any circumstances.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of
paragraph (c) below and Section 2.07, the Loans comprising each ABR Borrowing
shall bear interest (computed on the basis of the actual number of days elapsed
over a year of 365 or 366 days, as the case may be, when determined by reference
to the Prime Rate and over a year of 360 days at all other times) at a rate per
annum equal to the Alternate Base Rate plus 1.50%.
(b) Subject to the provisions of paragraph (c) below and Section 2.07,
the Loans comprising each Eurodollar Borrowing shall bear interest (computed on
the basis of the actual number of days elapsed over a year of 360 days) at a
rate per annum equal to the Adjusted LIBO Rate for the Interest Period in effect
for such Borrowing plus 2.50%.
(c) Subject to the provisions of Section 2.07, each Loan shall bear
interest (computed as set forth in paragraph (a) or (b) above, as applicable)
for any date on or after the date of the Borrower's delivery to the
Administrative Agent of the Borrower's consolidated financial statements for the
fiscal quarter of the Borrower ending closest to December 31, 2002, at a rate
per annum equal to the Alternate Base Rate or the Adjusted LIBO Rate, as
applicable,
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plus the ABR Margin or the LIBOR Margin, as applicable, effective for such date
as set forth on Schedule A.
(d) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
The applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest
Period or day within an Interest Period, as the case may be, shall be determined
by the Administrative Agent, and such determination shall be conclusive absent
manifest error. The Administrative Agent shall give the Borrower prompt notice
of each such determination.
SECTION 2.07. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, the Borrower shall on demand from
time to time pay interest, to the extent permitted by law, on such defaulted
amount for the period beginning on the date of such default up to (but not
including) the date of actual payment (after as well as before judgment) at a
rate per annum (computed on the basis of the actual number of days elapsed over
a year of 360 days) equal to the greater of (i) 2% per annum in excess of the
rate otherwise applicable to ABR Loans of the respective Tranche of Loans from
time to time and (y) the rate which is 2% in excess of the rate then borne by
such Loans.
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent shall have
determined that dollar deposits in the principal amounts of the Loans comprising
such Borrowing are not generally available in the London interbank market, or
that the rates at which such dollar deposits are being offered will not
adequately and fairly reflect the cost to any Lender of making or maintaining
its Eurodollar Loan during such Interest Period, or that reasonable means do not
exist for ascertaining the Adjusted LIBO Rate, the Administrative Agent shall,
as soon as practicable thereafter, give written or telecopy notice of such
determination to the Borrower and the Lenders. In the event of any such
determination, until the Administrative Agent shall have advised the Borrower
and the Lenders that the circumstances giving rise to such notice no longer
exist, any request by the Borrower for a Eurodollar Borrowing pursuant to
Section 2.03 or 2.10 shall be deemed to be a request for an ABR Borrowing. Each
determination by the Administrative Agent hereunder shall be conclusive absent
manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a) (i) The
Term Loan Commitments shall be automatically and permanently terminated at 5:00
p.m., New York City time, on the Closing Date. The Total Revolving Credit
Commitment shall be automatically and permanently terminated at 5:00 p.m., New
York City time, on the Revolving Credit Maturity Date.
(ii) The Commitments (and the Term Loan Commitments, Revolving Credit
Commitments, Swingline Loan Commitment and Revolving L/C Commitment of each
Lender) shall terminate in their entirety on September 30, 2002 unless the
Closing Date shall have occurred on or prior to such date.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently
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terminate, or from time to time in part permanently reduce, any of the Term Loan
Commitments or the Revolving Credit Commitments; provided, however, that (i)
each partial reduction of any Commitments shall be in an integral multiple of
$1,000,000 and in a minimum amount of $2,000,000 (or, if less, the remaining
amount of the applicable Commitments) and (ii) the Total Revolving Credit
Commitment shall not be reduced to an amount that is less than the Revolving
Credit Exposure at the time.
(c) Each reduction in the Commitments hereunder shall be made ratably
among the Lenders in accordance with their respective applicable Commitments.
The Borrower shall pay to the Administrative Agent for the account of the
Lenders, on the date of each termination or reduction, the Commitment Fees and,
to the extent applicable, L/C Participation Fees on the amount of the
Commitments so terminated or reduced accrued to but excluding the date of such
termination or reduction.
SECTION 2.10. Conversion and Continuation of Term Borrowings. The
Borrower shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 12:00 (noon), New York City time, one
Business Day prior to conversion, to convert any Eurodollar Term Borrowing into
an ABR Term Borrowing, (b) not later than 10:00 a.m., New York City time, three
Business Days prior to conversion or continuation, to convert any ABR Term
Borrowing into a Eurodollar Term Borrowing or to continue any Eurodollar Term
Borrowing as a Eurodollar Term Borrowing for an additional Interest Period, and
(c) not later than 10:00 a.m., New York City time, three Business Days prior to
conversion, to convert the Interest Period with respect to any Eurodollar Term
Borrowing to another permissible Interest Period, subject in each case to the
following:
(i) each conversion or continuation shall be made pro rata among the
relevant Lenders in accordance with the respective principal amounts of the
Loans comprising the converted or continued Term Borrowing;
(ii) if less than all the outstanding principal amount of any Term
Borrowing shall be converted or continued, then each resulting Term
Borrowing shall satisfy the limitations specified in Sections 2.02(a) and
(b) regarding the principal amount and maximum number of Borrowings of the
relevant Type;
(iii) each conversion shall be effected by each Lender by recording for
the account of such Lender the new Term Loan of such Lender resulting from
such conversion and reducing the Term Loan (or portion thereof) of such
Lender being converted by an equivalent principal amount; accrued interest
on a Term Loan (or portion thereof) being converted shall be paid by the
Borrower at the time of conversion;
(iv) if any Eurodollar Term Borrowing is converted at a time other than
the end of the Interest Period applicable thereto, the Borrower shall pay,
upon demand, any amounts due to the Lenders pursuant to Section 2.15;
(v) any portion of a Term Borrowing maturing or required to be repaid
in less than one month may not be converted into or continued as a
Eurodollar Term Borrowing;
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(vi) any portion of a Eurodollar Term Borrowing which cannot be
converted into or continued as a Eurodollar Term Borrowing by reason of the
immediately preceding clause shall be automatically converted at the end of
the Interest Period in effect for such Borrowing into an ABR Term
Borrowing;
(vii) no Interest Period may be selected for any Eurodollar Term
Borrowing that would end later than a Term Loan Installment Date occurring
on or after the first day of such Interest Period if, after giving effect
to such selection, the aggregate outstanding amount of (A) the Eurodollar
Term Borrowings with Interest Periods ending on or prior to such Term Loan
Installment Date and (B) the ABR Term Borrowings would not be at least
equal to the principal amount of Term Borrowings to be paid on such Term
Loan Installment Date; and
(viii) with respect to each Tranche, prior to the earlier of (i) the
45th day after the Closing Date and (ii) the Syndication Date, conversions
of ABR Loans into Eurodollar Loans may only be made if the conversion is
effective on the fifth day after the Closing Date (or on the first day of a
subsequent one month Interest Period as referenced in the parenthetical to
the second proviso to Section 2.02(b)) and otherwise in accordance with
Section 2.02(b).
Each notice pursuant to this Section 2.10 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Term Borrowing that the Borrower requests be converted or continued, (ii)
whether such Term Borrowing is to be converted to or continued as a Eurodollar
Borrowing or an ABR Borrowing, (iii) if such notice requests a conversion, the
date of such conversion (which shall be a Business Day) and (iv) if such Term
Borrowing is to be converted to or continued as a Eurodollar Borrowing, the
Interest Period with respect thereto. If no Interest Period is specified in any
such notice with respect to any conversion to or continuation as a Eurodollar
Borrowing, the Borrower shall be deemed to have selected an Interest Period of
one month's duration. The Administrative Agent shall advise the other Lenders of
any notice given pursuant to this Section 2.10 and of each Lender's portion of
any converted or continued Term Borrowing. If the Borrower shall not have given
notice in accordance with this Section 2.10 to continue any Term Borrowing into
a subsequent Interest Period (and shall not otherwise have given notice in
accordance with this Section 2.10 to convert such Term Borrowing), such Term
Borrowing shall, at the end of the Interest Period applicable thereto (unless
repaid pursuant to the terms hereof), automatically be converted into an ABR
Borrowing.
SECTION 2.11. Repayment of Term Borrowings. (a) The Term Borrowings
shall be payable as to principal in the amounts and on the dates set forth below
(each such date being called a "Term Loan Installment Date"):
Term Loan
Date Amount
March 31, 2003 $1,250,000
June 30, 2003 $1,250,000
September 30, 2003 $1,250,000
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December 31, 2003 $1,250,000
March 31, 2004 $1,250,000
June 30, 2004 $1,250,000
September 30, 2004 $1,250,000
December 31, 2004 $1,250,000
March 31, 2005 $6,250,000
June 30, 2005 $6,250,000
September 30, 2005 $6,250,000
December 31, 2005 $6,250,000
March 31, 2006 $12,500,000
June 30, 2006 $12,500,000
September 30, 2006 $12,500,000
December 31, 2006 $12,500,000
March 31, 2007 $12,500,000
June 30, 2007 $12,500,000
September 30, 2007 $12,500,000
December 31, 2007 $12,500,000
March 31, 2008 $51,875,000
June 30, 2008 $51,875,000
September 30, 2008 $51,875,000
December 31, 2008 $51,875,000
March 31, 2009 $69,166,667
June 30, 2009 $69,166,667
_________ __, 2009 $69,166,666
; notwithstanding the foregoing, all then outstanding principal of the Term
Loans shall be due and payable on the Term Loan Maturity Date (even if same
occurs prior to one or more of the dates set forth in the table above).
(b) With respect to each repayment of Loans required by this Section
2.11 or made pursuant to the following Section 2.12, the Borrower may designate
the Types of Loans of the respective Tranche which are to be repaid and, in the
case of Eurodollar Borrowings, the specific Borrowing or Borrowings to be
repaid, provided that: (i) repayments of Eurodollar Borrowings which are not
made on the last day of an Interest Period applicable thereto shall be required
to be accompanied by the payment of all related amounts owing pursuant to
Section 2.15; (ii) if any repayment of any Eurodollar Borrowing shall reduce the
outstanding amount of such Borrowing to an amount less than the minimum
Borrowing amount applicable thereto pursuant to Section 2.02(a), such Borrowing
shall be converted at the end of the then current Interest Period into an ABR
Borrowing; and (iii) each repayment of Loans made pursuant to a Borrowing shall
be applied pro rata among such Loans of all Lenders. In the absence of a
designation by the Borrower as described in the preceding sentence, the
Administrative Agent shall, subject to the above, make such designation in its
sole discretion.
(c) All prepayments made pursuant to Sections 2.12(a) and (d) shall
reduce scheduled payments required under paragraph (a) above after the date of
such prepayment in the scheduled order of maturity and all prepayments made
pursuant to Section 2.12(c) shall reduce scheduled payments required under
paragraph (a) above, after the date of such prepayment on a
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pro rata basis. To the extent not previously paid, all Term Borrowings shall be
due and payable on the Term Loan Maturity Date. Each payment of Borrowings
pursuant to this Section 2.11 shall be accompanied by accrued interest on the
principal amount paid to but excluding the date of payment.
SECTION 2.12. Prepayment. (a) The Borrower shall have the right at any
time and from time to time to prepay any Borrowing, in whole or in part, upon at
least three Business Days' (or, in the case of a prepayment of ABR Loans, one
Business Day's) prior written or telecopy notice (or telephone notice promptly
confirmed by written or telecopy notice) to the Administrative Agent, before
11:00 a.m., New York City time; provided, however, that (i) each partial
prepayment (other than of a Swingline Loan) shall be in an amount that is an
integral multiple of $1,000,000 and not less than $5,000,000 (or, if less, the
aggregate outstanding amount under the applicable Tranche) and (ii) each
prepayment of Term Borrowings shall be applied as set forth in paragraphs (b)
and (c) of Section 2.11.
(b) In the event of any termination of the Revolving Credit
Commitments, the Borrower shall on the date of such termination repay or prepay
all its outstanding Swingline Loans and Revolving Credit Borrowings, reduce the
Revolving L/C Exposure to zero and cause all Letters of Credit to be canceled
and returned to the respective Fronting Bank. In the event of any partial
reduction of the Revolving Credit Commitments, then (i) at or prior to the
effective date of such reduction, the Administrative Agent shall notify the
Borrower, the Swingline Lender and the Revolving Credit Lenders of the Aggregate
Revolving Credit Exposure and (ii) if the Aggregate Revolving Credit Exposure
would exceed the Total Revolving Credit Commitment after giving effect to such
reduction, then the Borrower shall, on the date of such reduction, repay or
prepay Swingline Loans and Revolving Credit Borrowings, or reduce the Revolving
L/C Exposure, in an aggregate amount sufficient to eliminate such excess.
Notwithstanding the foregoing, on the date of any termination or reduction of
the Revolving Credit Commitments pursuant to Section 2.09, the Borrower shall
pay or prepay so much of, first, the Swingline Loans and, second, the Revolving
Credit Borrowings as shall be necessary in order that the Aggregate Revolving
Credit Exposure will not exceed the Total Revolving Credit Commitment after
giving effect to such termination or reduction.
(c) The Borrower shall apply (i) all Net Proceeds promptly upon receipt
thereof by Holdings, the Borrower or any of their Subsidiaries and (ii) the
Excess Funding Amount to the extent not used on or prior to March 31, 2003 to
redeem or purchase and cancel the Holdings Discount Notes as provided in Section
6.09(b), in each case, to prepay Term Borrowings in accordance with paragraphs
(b) and (c) of Section 2.11.
(d) Not later than 90 days after the end of each Excess Cash Flow
Period, the Borrower shall calculate Excess Cash Flow for such Excess Cash Flow
Period and shall apply 50% of such Excess Cash Flow to prepay Term Borrowings in
accordance with paragraphs (b) and (c) of Section 2.11, provided that if, at the
time of such prepayment, the Net Leverage Ratio is less than 3.50 to 1.00 (as
established pursuant to the certificate last delivered (or required to be
delivered) pursuant to Section 5.04(c)), the Borrower shall not be required to
apply any of such Excess Cash Flow to prepay such Borrowings. Not later than the
date on which the Borrower is required to deliver financial statements with
respect to the end of each Excess Cash Flow Period under Section 5.04(a), the
Borrower will deliver to the Administrative Agent a certificate signed
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by a Financial Officer of the Borrower setting forth the amount, if any, of
Excess Cash Flow for such fiscal year and the calculation thereof in reasonable
detail.
(e) In addition to any other mandatory prepayments pursuant to this
Section 2.12, on each date after the Closing Date upon which a mandatory
prepayment of Term Loans pursuant to Section 2.12(c) and/or (d) is required (and
exceeds in amount the aggregate principal amount of Term Loans then outstanding)
or would be required if Term Loans were then outstanding, the amount required to
be applied pursuant to this Section 2.12 (determined as if an unlimited amount
of Term Loans were actually outstanding) in excess of the aggregate principal
amount of Term Loans then outstanding shall be applied to promptly repay then
outstanding Revolving Loans and/or Swingline Loans (to the extent outstanding)
without any corresponding reduction to the Revolving Credit Commitments.
(f) Each notice of prepayment or reduction pursuant to this Section
2.12 shall specify the prepayment date and the principal amount of each
Borrowing (or portion thereof) to be prepaid, shall be irrevocable and shall
commit the Borrower to prepay such Borrowing by the amount stated therein on the
date stated therein. All prepayments under this Section 2.12 shall (x) be made
in accordance with the provisions of Section 2.11(b) and (y) be subject to
Section 2.15 but otherwise without premium or penalty. All prepayments under
this Section 2.12 shall be accompanied by accrued interest on the principal
amount being prepaid to but excluding the date of payment.
(g) In the event the amount of any prepayment required to be made above
under this Section 2.12 shall exceed the aggregate principal amount of the ABR
Loans outstanding under the respective Tranche required to be prepaid (the
amount of any such excess being called the "Excess Amount"), the Borrower shall
have the right, in lieu of making such prepayment in full, to prepay all the
outstanding applicable ABR Loans and to deposit an amount equal to the Excess
Amount with the Collateral Agent in a cash collateral account maintained
(pursuant to documentation reasonably satisfactory to the Administrative Agent)
by and in the sole dominion and control of the Collateral Agent. Any amounts so
deposited shall be held by the Collateral Agent as collateral for the
Obligations and applied to the prepayment of the applicable Eurodollar Loans at
the end of the current Interest Periods applicable thereto. On any Business Day
on which (i) collected amounts remain on deposit in or to the credit of such
cash collateral account after giving effect to the payments made on such day
pursuant to this Section 2.12(g) and (ii) the Borrower shall have delivered to
the Collateral Agent a written request or a telephonic request (which shall be
promptly confirmed in writing) that such remaining collected amounts be invested
in the Permitted Investments specified in such request, the Collateral Agent
shall use its reasonable efforts to invest such remaining collected amounts in
such Permitted Investments; provided, however, that the Collateral Agent shall
have continuous dominion and full control over any such investments (and over
any interest that accrues thereon) to the same extent that it has dominion and
control over such cash collateral account and no Permitted Investment shall
mature after the end of the Interest Period for which it is to be applied. The
Borrower shall not have the right to withdraw any amount from such cash
collateral account until the applicable Eurodollar Loans and accrued interest
thereon are paid in full or if a Default or Event of Default then exists or
would result.
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SECTION 2.13. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision herein, if after the date of this Agreement
any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender or Fronting
Bank in respect of any Letter of Credit or of the principal of or interest on
any Eurodollar Loan made by such Lender or any Fees or other amounts payable
hereunder (other than changes in respect of (i) taxes imposed on the overall net
income of such Lender or Fronting Bank by the jurisdiction in which such Lender
or Fronting Bank has its principal office or by any political subdivision or
taxing authority therein and (ii) any Taxes described in Section 2.19), or shall
impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets or deposits with or for the account of or credit
extended by or, in the case of the Letters of Credit, participated in by such
Lender (except any such reserve requirement which is reflected in the Adjusted
LIBO Rate) or Fronting Bank or shall impose on such Lender or Fronting Bank or
the interbank Eurodollar market any other condition affecting this Agreement,
any Letter of Credit (or any participation with respect thereto), the Revolving
L/C Exposure or any Eurodollar Loans of such Lender or Fronting Bank, and the
result of any of the foregoing shall be to increase the cost to such Lender or
Fronting Bank of making or maintaining its Revolving L/C Exposure or any
Eurodollar Loan (or, in the case of the Fronting Bank, of making any payment
under any Letter of Credit) or to reduce the amount of any sum received or
receivable by such Lender or Fronting Bank hereunder (whether of principal,
interest or otherwise) by an amount deemed by such Lender or Fronting Bank to be
material, then from time to time the Borrower will pay to such Lender or
Fronting Bank upon demand such additional amount or amounts as will compensate
such Lender or Fronting Bank for such additional costs incurred or reduction
suffered.
(b) If any Lender or Fronting Bank shall have determined that the
adoption after the date hereof of any law, rule, regulation or guideline
regarding capital adequacy, or any change after the date hereof in any of the
foregoing or in the interpretation or administration of any of the foregoing by
any Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or Fronting Bank or any Lender's or Fronting
Bank's holding company with any request or directive regarding capital adequacy
(whether or not having the force of law) made or issued after the date hereof by
any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Lender's or Fronting Bank's
capital or on the capital of such Lender's or Fronting Bank's holding company,
if any, as a consequence of this Agreement or its obligations pursuant hereto to
a level below that which such Lender or Fronting Bank or such Lender's or
Fronting Bank's holding company would have achieved but for such adoption,
change or compliance (taking into consideration such Lender's or Fronting Bank's
policies and the policies of such Lender's or Fronting Bank's holding company
with respect to capital adequacy) by an amount deemed by such Lender or Fronting
Bank to be material, then from time to time the Borrower shall pay to such
Lender or Fronting Bank upon demand such additional amount or amounts as will
compensate such Lender or Fronting Bank or such Lender's or Fronting Bank's
holding company for any such reduction suffered.
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(c) A certificate of each Lender or Fronting Bank setting forth such
amount or amounts as shall be necessary to compensate such Lender or Fronting
Bank or its holding company as specified in paragraph (a) or (b) above, as the
case may be, shall be delivered to the Borrower through the Administrative Agent
and shall be conclusive absent manifest error. The Borrower shall pay each
Lender or Fronting Bank the amount shown as due on any such certificate
delivered by it within 10 days after its receipt of the same.
(d) In the event any Lender or any Fronting Bank delivers a notice
pursuant to paragraph (e) below, the Borrower may require, at the Borrower's
expense and subject to Section 2.15, such Lender or such Fronting Bank to
assign, at par plus accrued interest and fees, without recourse (in accordance
with Section 9.04) all its interests, rights and obligations hereunder
(including, in the case of a Lender, all of its Commitments and the Loans at the
time owing to it and participations in Letters of Credit held by it and its
obligations to acquire such participations) to a financial institution specified
by the Borrower, provided that (i) such assignment shall not conflict with or
violate any law, rule or regulation or order of any court or other Governmental
Authority, (ii) the Borrower shall have received the written consent of the
Administrative Agent (which consent shall not be unreasonably withheld) and such
Fronting Bank to such assignment, (iii) the Borrower shall have paid to the
assigning Lender or the Fronting Bank all moneys accrued and owing hereunder to
it (including pursuant to this Section 2.13) and (iv) in the case of a required
assignment by any Fronting Bank, all outstanding Letters of Credit issued by
such Fronting Bank shall be canceled and returned to such Fronting Bank.
(e) Promptly after any Lender or any Fronting Bank has determined, in
its sole judgment, that it will make a request for increased compensation
pursuant to this Section 2.13, such Lender or Fronting Bank will notify the
Borrower thereof. Failure on the part of any Lender or Fronting Bank so to
notify the Borrower or to demand compensation for any increased costs or
reduction in amounts received or receivable or reduction in return on capital
with respect to any period shall not constitute a waiver of such Lender's or
Fronting Bank's right to demand compensation with respect to such period or any
other period, provided that the Borrower shall not be under any obligation to
compensate any Lender or Fronting Bank under paragraph (b) above with respect to
increased costs or reductions with respect to any period prior to the date that
is six months prior to such request if such Lender or Fronting Bank knew or
could reasonably have been expected to be aware of the circumstances giving rise
to such increased costs or reductions and of the fact that such circumstances
would in fact result in a claim for increased compensation by reason of such
increased costs or reductions and provided further, that the foregoing
limitation shall not apply to any increased costs or reductions arising out of
the retroactive application of any law, regulation, rule, guideline or directive
as aforesaid within such six month period. The protection of this Section 2.13
shall be available to each Lender and Fronting Bank regardless of any possible
contention as to the invalidity or inapplicability of the law, rule, regulation,
guideline or other change or condition which shall have occurred or been
imposed.
SECTION 2.14. Change in Legality. (a) Notwithstanding any other
provision herein, if the adoption of or any change in any law or regulation or
in the interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurodollar Loan or to give effect to its
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obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrower and to the Administrative Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made by such
Lender hereunder, whereupon any request by the Borrower for a Eurodollar
Borrowing shall, as to such Lender only, be deemed a request for an ABR
Loan unless such declaration shall be subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall be
automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under subparagraphs (i) and
(ii) above, all payments and prepayments of principal that would otherwise have
been applied to repay the Eurodollar Loans that would have been made by such
Lender or the converted Eurodollar Loans of such Lender shall instead be applied
to repay the ABR Loans made by such Lender in lieu of, or resulting from the
conversion of, such Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan, if lawful, on the last day
of the Interest Period currently applicable to such Eurodollar Loan; in all
other cases such notice shall be effective on the date of receipt by the
Borrower.
SECTION 2.15. Indemnity. The Borrower shall indemnify each Lender
against any loss or expense (other than taxes) that such Lender may sustain or
incur as a consequence of (a) any failure by the Borrower to fulfill on the date
of any Borrowing or proposed Borrowing hereunder the applicable conditions set
forth in Article IV, (b) any failure by the Borrower to borrow or to refinance,
convert or continue any Loan hereunder after irrevocable notice of such
Borrowing, refinancing, conversion or continuation has been given pursuant to
Section 2.03 or 2.10, (c) any payment, prepayment or conversion of a Eurodollar
Loan required by any other provision of this Agreement or otherwise made or
deemed made on a date other than the last day of the Interest Period applicable
thereto, (d) any default in payment or prepayment of the principal amount of any
Loan or any part thereof or interest accrued thereon, as and when due and
payable (at the due date thereof, whether by scheduled maturity, acceleration,
irrevocable notice of prepayment or otherwise) or (e) the occurrence of any
Event of Default, including, in each such case, any loss or reasonable expense
sustained or incurred or to be sustained or incurred in liquidating or employing
deposits from third parties acquired to effect or maintain such Loan or any part
thereof as a Eurodollar Loan. Such loss or reasonable expense shall exclude loss
of margin hereunder but shall include an amount equal to the excess, if any, as
reasonably determined by such Lender, of (i) its cost of obtaining the funds for
the Loan being paid, prepaid, converted or not borrowed, converted or continued
(assumed to be the Adjusted LIBO Rate applicable thereto) for the period from
the date of such payment, prepayment, conversion or failure to borrow, convert
or continue to the last day of the Interest Period for such Loan (or, in the
case of a failure to borrow, convert or continue, the Interest Period for such
Loan which would have commenced on the date of such failure) over (ii) the
amount of interest (as reasonably determined by such Lender) that would be
realized by such Lender in reemploying the funds so paid, prepaid, converted or
not borrowed, converted or continued for such period or Interest Period, as the
case may be. A certificate of any Lender setting forth any amount or
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amounts that such Lender is entitled to receive pursuant to this Section 2.15
(and the reasons therefor) shall be delivered to the Borrower through the
Administrative Agent and shall be conclusive absent manifest error.
SECTION 2.16. Pro Rata Treatment. Except as required under Section 2.14
and subject to Section 2.11, each Borrowing, each payment or prepayment of
principal of any Borrowing, each payment of interest on the Loans, each
reimbursement of L/C Disbursements, each payment of the Commitment Fees or L/C
Participation Fees, each reduction of the Term Loan Commitments or the Revolving
Credit Commitments and each refinancing of any Borrowing with, conversion of any
Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall
be allocated (except in the case of Swingline Loans) pro rata among the Lenders
in accordance with their respective applicable Commitments (or, if such
Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of their applicable outstanding Loans or
participations in L/C Disbursements, as applicable). Each Lender agrees that in
computing such Lender's portion of any Borrowing or L/C Disbursement, the
Administrative Agent may, in its discretion, round each Lender's percentage of
such Borrowing or L/C Disbursement, computed in accordance with Section 2.01, to
the next higher or lower whole dollar amount.
SECTION 2.17. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower or pursuant to a secured claim under Section 506 of Title 11 of the
United States Code or other security or interest arising from, or in lieu of,
such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Loan or L/C Disbursement as
a result of which the unpaid principal portion of its Loans or L/C Disbursements
made pursuant to any Commitment (or, after acceleration of the Loans pursuant to
Article VII, applicable to any Loan or L/C Disbursement) shall be
proportionately less than the unpaid principal portion of the Loans or L/C
Disbursements of any other Lender made pursuant to such Commitments (or, after
acceleration of the Loans pursuant to Article VII, applicable to any Loan or L/C
Disbursement), it shall be deemed simultaneously to have purchased from such
other Lender at face value, and shall promptly pay to such other Lender the
purchase price for, an interest in the Loans or L/C Disbursements of such other
Lender, so that the aggregate unpaid principal amount of the Loans or L/C
Disbursements and interests in Loans or L/C Disbursements held by each such
Lender shall be in the same proportion to the aggregate unpaid principal amount
of all Loans or L/C Disbursements then outstanding under such Commitments as the
principal amount of its Loans or L/C Disbursements under such Commitments prior
to such exercise of banker's lien, setoff or counterclaim or other event was to
the principal amount of all such Loans or L/C Disbursements outstanding prior to
such exercise of banker's lien, setoff or counterclaim or other event; provided,
however, that, if any such purchase or purchases or adjustments shall be made
pursuant to this Section 2.17 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. The Borrower expressly consents to the
foregoing arrangements and agrees that any Lender holding an interest in a Loan
or L/C Disbursement deemed to have been so purchased may exercise any and all
rights of banker's lien, setoff or counterclaim with respect to any and all
moneys owing by the Borrower
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to such Lender by reason thereof as fully as if such Lender had made a Loan
directly to, or L/C Disbursement directly for the benefit of, the Borrower in
the amount of such interest.
SECTION 2.18. Payments. (a) The Borrower shall make each payment
without setoff or counterclaim (including principal of or interest on any
Borrowing or L/C Disbursement or any Fees or other amounts) required to be made
by it hereunder and under any other Loan Document not later than 12:00 noon, New
York City time, on the date when due in Dollars to the Administrative Agent at
its offices at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Attention: Deal
Administrator, in immediately available funds. The Administrative Agent shall
distribute such payments to the Lenders and/or the respective Fronting Bank
promptly upon receipt in like funds as received.
(b) Whenever any payment (including principal of or interest on any
Borrowing or L/C Disbursement or any Fees or other amounts) hereunder or under
any other Loan Document shall become due, or otherwise would occur, on a day
that is not a Business Day, such payment may be made on the next succeeding
Business Day (except in the case of payment of principal of a Eurodollar
Borrowing if the effect of such extension would be to extend such payment into
the next succeeding month, in which event such payment shall be due on the
immediately preceding Business Day), and such extension of time shall in such
case be included in the computation of interest or Fees, if applicable.
SECTION 2.19. Taxes. (a) Any and all payments by the Borrower to the
Administrative Agent, any Fronting Bank or the Lenders hereunder or under the
other Loan Documents shall be made, in accordance with Section 2.18, free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding (i) in the case of each Lender, each Fronting Bank and the
Administrative Agent, taxes that would not be imposed but for a connection
between such Lender, such Fronting Bank or the Administrative Agent (as the case
may be) and the jurisdiction imposing such tax, other than a connection arising
solely by virtue of the activities of such Lender, such Fronting Bank or the
Administrative Agent (as the case may be) pursuant to or in respect of this
Agreement or under any other Loan Document, including entering into, lending
money or extending credit pursuant to, receiving payments under, or enforcing,
this Agreement or any other Loan Document, and (ii) in the case of each Lender,
each Fronting Bank and the Administrative Agent, any United States withholding
taxes payable with respect to any payments made hereunder or under the other
Loan Documents under laws (including any statute, treaty, ruling, determination
or regulation) in effect on the Initial Date (as hereinafter defined) applicable
to such Lender, such Fronting Bank or the Administrative Agent, as the case may
be, on such date but not excluding any United States withholding taxes payable
solely as a result of any change in such laws occurring after the Initial Date
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Taxes"). For purposes of this
Section 2.19, the term "Initial Date" shall mean (i) in the case of the
Administrative Agent, any Fronting Bank or any Lender, the date on which such
person became a party to this Agreement and (ii) in the case of any assignment,
including any assignment by a Lender or a Fronting Bank to a new lending office,
the date of such assignment. If any Taxes shall be required by law to be
deducted from or in respect of any sum payable hereunder or under any other Loan
Document to any Lender, any Fronting Bank or the Administrative Agent, (i) the
sum payable by the Borrower shall be
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increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.19) such Lender, such Fronting Bank or the Administrative Agent, as the case
may be, receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law. The Borrower shall not,
however, be required to pay any amounts pursuant to clause (i) of the preceding
sentence to any Lender, any Fronting Bank or the Administrative Agent not
organized under the laws of the United States of America or a state thereof if
such Lender, such Fronting Bank or the Administrative Agent fails to comply with
the requirements of paragraph (f) or (g), as the case may be, and paragraph (h)
of this Section 2.19.
(b) In addition, the Borrower agrees to pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies which arise from the execution, delivery or registration of, or otherwise
with respect to, this Agreement or any other Loan Document (hereinafter referred
to as "Other Taxes").
(c) The Borrower will indemnify each Lender, each Fronting Bank and the
Administrative Agent for the full amount of Taxes and Other Taxes (including any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 2.19) paid by such Lender, Fronting Bank or the Administrative Agent, as
the case may be, and any liability (including penalties, interest and expenses
including reasonable attorney's fees and expenses) arising therefrom or with
respect thereto whether or not such Taxes or Other Taxes were correctly or
legally asserted. A certificate as to the amount of such payment or liability
prepared by a Lender (or transferee), a Fronting Bank or the Administrative
Agent, absent manifest error, shall be final, conclusive and binding for all
purposes, provided that if the Borrower reasonably believes that such Taxes were
not correctly or legally asserted, such Lender, such Fronting Bank or the
Administrative Agent, as the case may be shall use reasonable efforts to
cooperate with the Borrower to obtain a refund of such Taxes or Other Taxes.
Such indemnification shall be made within 10 days after the date any Lender, any
Fronting Bank or the Administrative Agent, as the case may be, makes written
demand therefor. If a Lender, a Fronting Bank or the Administrative Agent shall
become aware that it is entitled to receive a refund in respect of Taxes or
Other Taxes, it shall promptly notify the Borrower of the availability of such
refund and shall, within 30 days after receipt of a request by the Borrower,
pursue or timely claim such refund at the Borrower's expense. If any Lender, any
Fronting Bank or the Administrative Agent receives a refund in respect of any
Taxes or Other Taxes for which such Lender, such Fronting Bank or the
Administrative Agent has received payment from the Borrower hereunder, it shall
promptly repay such refund (plus any interest received) to the Borrower (but
only to the extent of indemnity payments made, or additional amounts paid, by
the Borrower under this Section 2.19 with respect to the Taxes or Other Taxes
giving rise to such refund), provided that the Borrower, upon the request of
such Lender, such Fronting Bank or the Administrative Agent, agrees to return
such refund (plus any penalties, interest or other charges required to be paid)
to such Lender, such Fronting Bank or the Administrative Agent in the event such
Lender, such Fronting Bank or the Administrative Agent is required to repay such
refund to the relevant taxing authority.
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(d) Within 30 days after the date of any payment of Taxes or Other
Taxes withheld by the Borrower in respect of any payment to any Lender, any
Fronting Bank or the Administrative Agent, the Borrower will furnish to the
Administrative Agent, at its address referred to in Section 9.01, the original
or a certified copy of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.19 shall
survive the payment in full of principal and interest hereunder, the expiration
of the Letters of Credit and the termination of the Commitments.
(f) In the case of any Borrowing by, or L/C Disbursement for the
benefit of, the Borrower, this paragraph (f) shall apply. Each Lender, each
Fronting Bank and the Administrative Agent that is not organized under the laws
of the United States of America or a state thereof agrees that at least 10 days
prior to the first Interest Payment Date following the Initial Date in respect
of such Fronting Bank or such Lender, it will deliver to the Borrower and the
Administrative Agent (if appropriate) two duly completed copies of either (i)
United States Internal Revenue Service Form W-8BEN or W-8ECI or successor
applicable form, as the case may be, certifying in each case that such Fronting
Bank, such Lender or the Administrative Agent, as the case may be, is entitled
to receive payments under this Agreement and the other Loan Documents payable to
it without deduction or withholding of any United States federal income taxes
and backup withholding taxes or is entitled to receive such payments at a
reduced rate pursuant to a treaty provision or (ii) in the case of a Lender that
is not a "bank" within the meaning of Section 881(c)(3) of the Code, deliver to
the Borrower and the Administrative Agent (I) a statement under penalties of
perjury that such Lender (w) is not a "bank" under Section 881(c)(3)(A) of the
Code, is not subject to regulatory or other legal requirements as a bank in any
jurisdiction, and has not been treated as a bank for purposes of any tax,
securities law or other filing or submission made to any Governmental Authority,
any application made to a rating agency or qualification for any exemption from
tax, securities law or other legal requirements, (x) is not a 10-percent
shareholder within the meaning of Section 881(c)(3)(B) of the Code, (y) is not a
controlled foreign corporation receiving interest from a related person within
the meaning of Section 881(c)(3)(c) of the Code and (z) is not a "conduit
entity" within the meaning of U.S. Treasury Regulations Section 1.881-3 and (II)
an Internal Revenue Service Form W-8BEN. In addition, such Lender, such Fronting
Bank and the Administrative Agent shall (I) deliver to the Borrower and the
Administrative Agent a further copy of said Form W-8BEN or W-8ECI, or any
successor applicable form or other manner of certification on or before the date
that any such Form W-8BEN or W-8ECI expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form previously
delivered by such Lender, such Fronting Bank or the Administrative Agent; and
(II) obtain such extensions of time for filing and complete such forms or
certifications as may be reasonably requested by the Borrower or the
Administrative Agent; unless in any such case an event (including any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders any such forms inapplicable
or which would prevent such Lender, such Fronting Bank or the Administrative
Agent from duly completing and delivering any such form with respect to it and
such Lender so advises the Borrower and the Administrative Agent. Such Lender
shall certify (i) in the case of a Form W-8BEN or W-8ECI (or a successor form),
that it is entitled to receive payments under this Agreement without deduction
or
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withholding of any United States Federal income taxes or is entitled to receive
such payments at a reduced rate pursuant to a treaty provision and (ii) in the
case of a Form W-8, that it is entitled to an exemption from United States
backup withholding tax. Each Person that shall become a participant pursuant to
Section 9.04 shall, upon the effectiveness of the related transfer, be required
to provide all the forms and statements required pursuant to this paragraph (f)
to the Lender from which the related participation shall have been purchased.
Unless the Borrower and the Administrative Agent have received forms,
certificates and other documents required by this Section 2.19(f) indicating
that payments hereunder or under this Agreement, any other Loan Document or the
Letters of Credit to or for any Fronting Bank or Lender not incorporated or
organized under the laws of the United States or a state thereof are not subject
to United States withholding tax or are subject to such tax at a rate reduced by
an applicable tax treaty, the Borrower or the Administrative Agent shall
withhold such taxes from such payments at the applicable statutory rate.
(g) Any Fronting Bank and any Lender claiming any additional amounts
payable pursuant to this Section 2.19 shall use reasonable efforts (consistent
with legal and regulatory restrictions) to file any certificate or document
requested in writing by the Borrower or to change the jurisdiction of its
applicable lending office, if the making of such a filing or change would avoid
the need for or reduce the amount of any such additional amounts which would be
payable or may thereafter accrue and would not, in the sole determination of
such Fronting Bank or such Lender, be otherwise disadvantageous to such Fronting
Bank or such Lender.
(h) Nothing contained in this Section 2.19 shall require any Lender or
any Fronting Bank or the Administrative Agent to make available any of its tax
returns (or any other information that it deems to be confidential or
proprietary).
SECTION 2.20. Letters of Credit. (a) Letters of Credit. (i) General.
The Borrower may request the issuance of a Standby Letter of Credit or a
Commercial Letter of Credit by delivering notice in the form of Exhibit C hereto
(each a "Letter of Credit Request"), appropriately completed, for the account of
the Borrower at any time and from time to time while the Revolving Credit
Commitments remain in effect and prior to the [tenth](1) day preceding the
Revolving Credit Maturity Date. This Section 2.20 shall not be construed to
impose an obligation upon (x) any Fronting Bank to issue any Letter of Credit
that is inconsistent with the terms and conditions of this Agreement or that
would result in there existing Letters of Credit in an aggregate stated amount
at any time in excess of $50,000,000 or (y) DBTCA (or any of its Affiliates) to
issue any Commercial Letter of Credit.
(ii) Notice of Issuance, Amendment; Certain Conditions. In order to
request the issuance of a Letter of Credit (or to request that a Fronting Bank
amend an existing Letter of Credit), the Borrower shall deliver to such Fronting
Bank and the Administrative Agent (reasonably in advance of the requested date
of issuance or amendment) a written notice (including by way of facsimile)
requesting the issuance of such Letter of Credit in Dollars and on a sight
basis, or identifying any Letter of Credit to be amended, and specifying the
date of
------------------------
(1) DB to confirm.
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issuance or amendment, the date on which such Letter of Credit is to expire
(which shall comply with paragraph (iii) below), the amount of such Letter of
Credit to be issued or amended, the name and address of the account party (which
shall be the Borrower) and the beneficiary thereof and such other information as
shall be necessary to prepare such Letter of Credit or grant such issuance or
amendment. Each Letter of Credit shall be issued or amended subject to the terms
and conditions and relying on the representations and warranties of Holdings and
the Borrower set forth herein, and in any case only if, and upon issuance or
amendment of each Letter of Credit the Borrower shall be deemed to represent and
warrant that, after giving effect to such issuance or amendment the Aggregate
Revolving Credit Exposure shall not exceed the Total Revolving Credit Commitment
in effect at such time.
(iii) Expiration Date. Each Standby Letter of Credit shall expire at
the close of business on the earlier of the date one year after the date of the
issuance of such Standby Letter of Credit (although any such Standby Letter of
Credit may be automatically extendable for successive periods of up to one year,
but not beyond the fifth Business Day prior to the Revolving Credit Maturity
Date) and the date that is five Business Days prior to the Revolving Credit
Maturity Date and each Commercial Letter of Credit shall expire at the close of
business on the earlier of the date 180 days after the date of issuance of such
Commercial Letter of Credit and the date that is ten Business Days prior to the
Revolving Credit Maturity Date, unless such Letter of Credit expires by its
terms on an earlier date, provided that a Letter of Credit shall not be issued
(nor shall a Letter of Credit be amended, renewed or extended) that would result
in the Aggregate Revolving Credit Exposure exceeding the Total Revolving Credit
Commitment in effect at such time. Compliance with the foregoing proviso shall
be determined based upon the assumption that (A) each Letter of Credit remains
outstanding and undrawn in accordance with its terms until its expiration date
(taking into account any rights of renewal or extension that do not require
written notice by or consent of any Fronting Bank, in its sole discretion, in
order to effect such renewal or extension) and (B) the Revolving Credit
Commitments will not be reduced pursuant to Section 2.09.
(iv) Participations. By the issuance of a Letter of Credit and without
any further action on the part of such Fronting Bank or the Revolving Credit
Lenders, such Fronting Bank will grant to each Revolving Credit Lender, and each
such Lender will acquire from such Fronting Bank, a participation in such Letter
of Credit equal to such Revolving Credit Lender's Applicable Percentage of the
aggregate amount available to be drawn under such Letter of Credit, effective
upon the issuance of such Letter of Credit. In consideration and in furtherance
of the foregoing, each Revolving Credit Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of
such Fronting Bank, such Revolving Credit Lender's Applicable Percentage of each
L/C Disbursement made by such Fronting Bank under such Letter of Credit and not
reimbursed by the Borrower (or, if applicable, another party pursuant to its
obligations under any other Loan Document) on or before the next Business Day as
provided in paragraph (v) below. Each Revolving Credit Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph
in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or an Event of Default, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever, provided that nothing in this Agreement shall be construed to excuse
any Fronting Bank from liability to the Revolving Credit Lenders caused by the
gross negligence or willful misconduct of
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such Fronting Bank. The Existing Letters of Credit shall, for the purposes of
this Section 2.20(a)(iv) and Section 2.05(b), be deemed to have been issued
hereunder on the Closing Date.
(v) Reimbursement. If any Fronting Bank shall make any L/C Disbursement
in respect of a Letter of Credit, the Borrower shall pay to the Administrative
Agent, on or before the Business Day immediately following the date of such L/C
Disbursement, an amount equal to such L/C Disbursement. If the Borrower shall
fail to pay any amount required to be paid under this paragraph on or before
such Business Day (or to cause payment thereof when due pursuant to a Revolving
Credit Borrowing), then (A) such unpaid amount shall bear interest, for each day
from and including such Business Day to but excluding the date of payment, at a
rate per annum equal to the interest rate applicable to overdue ABR Loans that
are Revolving Credit Loans pursuant to Section 2.07 (provided that the 2.00%
margin referred to therein shall not be applicable until the first Business Day
after the Borrower receives notice from the Administrative Agent that such L/C
Disbursement has been or will be made), (B) the Administrative Agent shall
notify the respective Fronting Bank and the Revolving Credit Lenders thereof,
(C) each Revolving Credit Lender shall comply with its obligation under
paragraph (iv) above by wire transfer of immediately available funds, in the
same manner as provided in Section 2.02(c) with respect to Loans made by such
Revolving Credit Lender (and Section 2.02(d) shall apply, mutatis mutandis, to
the payment obligations of the Revolving Credit Lenders) and (D) the
Administrative Agent shall promptly pay to the respective Fronting Bank amounts
so received by it from the Revolving Credit Lenders. The Administrative Agent
shall promptly pay to the respective Fronting Bank on a pro rata basis with
respect to outstanding L/C Disbursements any amounts received by it from the
Borrower (or, if applicable, another party pursuant to its obligations under any
other Loan Document) pursuant to this paragraph prior to the time that any
Revolving Credit Lender makes any payment pursuant to paragraph (iv) above; any
such amounts received by the Administrative Agent thereafter shall be promptly
remitted by the Administrative Agent to the Revolving Credit Lenders that shall
have made such payments and to such Fronting Bank, as their interests may
appear.
(vi) Promptly after the issuance of or amendment to any Standby Letter
of Credit, the respective Fronting Bank will notify the Administrative Agent and
the Borrower, in writing, of such issuance or amendment and the notice will be
accompanied by a copy of the issuance or amendment. Promptly upon receipt of
such notice, the Administrative Agent shall notify each Lender, in writing, of
the issuance or amendment and if requested to do so by a Lender, the
Administrative Agent shall provide such Lender with a copy of the issuance or
amendment. With regards to Commercial Letters of Credit, each Fronting Bank
which has issued one or more Commercial Letters of Credit will send a facsimile
transmission to the Administrative Agent promptly on the first Business Day of
each week, stating the daily aggregate amount available for drawing under
Commercial Letters of Credit for the previous week.
(b) Obligations Absolute. The Borrower's obligations to reimburse L/C
Disbursements as provided in paragraph (a) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit or
any Loan Document, or any term or provision therein;
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(ii) any amendment or waiver of or any consent to departure from all or
any of the provisions of any Letter of Credit or any Loan Document;
(iii) the existence of any claim, setoff, defense or other right that
the Borrower, any other party guaranteeing, or otherwise obligated with,
the Borrower or any Subsidiary or other Affiliate thereof or any other
person may at any time have against the beneficiary under any Letter of
Credit, any Fronting Bank, any Agent or any Lender (other than the defense
of payment in accordance with the terms of this Agreement or a defense
based on the gross negligence or willful misconduct (as determined in a
final and non-appealable judgment of a court of competent jurisdiction) of
the respective Fronting Bank) or any other person, whether in connection
with this Agreement, any other Loan Document or any other related or
unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect, provided
that payment by the applicable Fronting Bank shall not have constituted
gross negligence or willful misconduct (as determined in a final and
non-appealable judgment of a court of competent jurisdiction) of such
Fronting Bank;
(v) payment by any Fronting Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit, provided that payment by such Fronting Bank
shall not have constituted gross negligence or willful misconduct (as
determined in a final and non-appealable judgment of a court of competent
jurisdiction) of such Fronting Bank; and
(vi) any other act or omission to act or delay of any kind of any
Fronting Bank, the Lenders, any Agent or any other person or any other
event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section 2.20(b),
constitute a legal or equitable discharge of the Borrower's obligations
hereunder, provided that such act or omission shall not have constituted
gross negligence or willful misconduct (as determined in a final and
non-appealable judgment of a court of competent jurisdiction) of such
Fronting Bank.
(c) Disbursement Procedures. Each Fronting Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. Each Fronting Bank shall as
promptly as possible give telephonic notification, confirmed by telecopy, to the
Administrative Agent and the Borrower of such demand for payment and whether
such Fronting Bank has made or will make an L/C Disbursement thereunder,
provided that any failure to give or delay in giving such notice shall not
relieve the Borrower of its obligation to reimburse such Fronting Bank and the
Lenders with respect to any such L/C Disbursement. The Administrative Agent
shall promptly give each Revolving Credit Lender notice thereof.
(d) Interim Interest. If any Fronting Bank shall make any L/C
Disbursement in respect of a Letter of Credit, then, unless the Borrower shall
reimburse such L/C Disbursement in full on such date, the unpaid amount thereof
shall bear interest for the account of such Fronting
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Bank, for each day from and including the date of such L/C Disbursement, to but
excluding the earlier of the date of payment or the date on which interest shall
commence to accrue thereon as provided in subparagraph (a)(v) above, at the rate
per annum that would apply to such amount if such amount were an ABR Loan.
(e) Liability of the Fronting Bank. Without limiting the generality of
paragraph (b) above, it is expressly understood and agreed that the absolute and
unconditional obligation of the Borrower to reimburse L/C Disbursements will not
be excused by the gross negligence or willful misconduct (as determined in a
final and non-appealable judgment of a court of competent jurisdiction) of any
Fronting Bank, except as otherwise expressly provided in said paragraph (b).
However, nothing in this Agreement shall be construed to excuse any Fronting
Bank from liability to the Borrower to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby waived
by the Borrower to the extent permitted by applicable law) suffered by the
Borrower that are caused by such Fronting Bank's gross negligence or willful
misconduct in determining whether drafts and other documents presented under a
Letter of Credit comply with the terms thereof. It is understood that each
Fronting Bank may accept documents that appear on their face to be in order,
without responsibility for further investigation in making any payment under any
Letter of Credit and, except as otherwise expressly provided in said paragraph
(b), (i) such Fronting Bank's exclusive reliance on the documents presented to
it under such Letter of Credit as to any and all matters set forth therein,
including reliance on the amount of any draft presented under such Letter of
Credit, whether or not the amount due to the beneficiary thereunder equals the
amount of such draft and whether or not any document presented pursuant to such
Letter of Credit proves to be insufficient in any respect, if such document on
its face appears to be in order, and whether or not any other statement or any
other document presented pursuant to such Letter of Credit proves to be forged
or invalid or any statement therein proves to be inaccurate or untrue in any
respect whatsoever and (ii) any noncompliance in any immaterial respect of the
documents presented under such Letter of Credit with the terms thereof shall, in
each case, be deemed not to constitute willful misconduct or gross negligence of
such Fronting Bank.
(f) Resignation or Removal of a Fronting Bank. Any Fronting Bank may
resign at any time by giving 30 days' prior written notice to the Administrative
Agent, the Lenders and the Borrower, and may be removed at any time by the
Borrower by notice to such Fronting Bank, the Administrative Agent and the
Lenders, subject in each case to the appointment by the Borrower of a
replacement Fronting Bank reasonably satisfactory to the Administrative Agent,
provided that (i) Deutsche Bank Trust Company Americas shall not resign as a
Fronting Bank hereunder for any reason other than compliance with applicable
legal and regulatory requirements and (ii) no Fronting Bank may resign as to any
Letter of Credit previously issued by it. Subject to the next succeeding
sentences of this paragraph (f), upon the acceptance of any appointment as the
Fronting Bank hereunder by a successor Fronting Bank, such successor shall
succeed to and become vested with all the interests, rights and obligations of
the retiring Fronting Bank and the retiring Fronting Bank shall be discharged
from its obligations to issue additional Letters of Credit hereunder to the
extent of the commitment of the successor Fronting Bank to provide Letters of
Credit. At the time such removal or resignation shall become effective, the
Borrower shall pay all accrued and unpaid fees of such Fronting Bank pursuant to
Section 2.05(b)(ii). The acceptance of any appointment as Fronting Bank
hereunder by a successor Fronting Bank shall be evidenced by an agreement
entered into by such successor, in a
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form satisfactory to the Borrower and the Administrative Agent, and, from and
after the effective date of such agreement, (i) such successor Fronting Bank
shall have all the rights and obligations of its predecessor Fronting Bank under
this Agreement and the other Loan Documents and (ii) references herein and in
the other Loan Documents to the term "Fronting Bank" shall be deemed to refer to
such successor or to such predecessor Fronting Bank, or to such successor and
all predecessor and current Fronting Banks, as the context shall require. After
the resignation or removal of a Fronting Bank hereunder, such retiring Fronting
Bank shall remain a party hereto and shall continue to have all the rights and
obligations of a Fronting Bank under this Agreement and the other Loan Documents
with respect to Letters of Credit issued by it prior to such resignation or
removal, but shall not be required to issue additional Letters of Credit.
(g) Cash Collateralization. If any Event of Default shall occur and be
continuing, the Borrower shall, on the Business Day the Borrower receives notice
from the Administrative Agent or Revolving Credit Lenders with combined
Revolving Credit Commitments representing a majority of the aggregate Revolving
Credit Commitments (or, if the maturity of the Loans has been accelerated,
Revolving Credit Lenders holding participations in outstanding Letters of Credit
representing a majority of the aggregate undrawn amount of all outstanding
Letters of Credit) thereof and of the amount to be deposited, deposit in an
account with the Collateral Agent, for the benefit of the Revolving Credit
Lenders an aggregate amount in cash equal to the Revolving L/C Exposure as of
such date. Such deposit shall be held by the Collateral Agent as collateral for
the payment and performance of the Obligations. The Collateral Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal,
over such account. Other than any interest earned on the investment of such
deposits in Permitted Investments, which investments shall be made at the option
and sole discretion of the Collateral Agent (provided that the Collateral Agent
shall use reasonable efforts to make such investments), such deposits shall not
bear interest. Interest or profits, if any, on such investments shall accumulate
in such account. Moneys in such account shall (a) automatically be applied by
the Administrative Agent to reimburse any Fronting Bank for L/C Disbursements
that have not been reimbursed, (b) be held for the satisfaction of the
reimbursement obligations of the Borrower for the Revolving L/C Exposure and (c)
if the maturity of the Loans has been accelerated (but subject to the consent of
Revolving Credit Lenders holding participations in outstanding Letters of Credit
representing greater than 50% of the aggregate undrawn amount of all outstanding
Letters of Credit), be applied to satisfy the Obligations. If the Borrower is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived.
(h) Additional Fronting Banks. From time to time, the Borrower may by
notice to the Administrative Agent designate other Lenders reasonably
satisfactory to the Administrative Agent, as additional Fronting Banks. Such
additional Fronting Banks shall execute a counterpart of this Agreement upon
approval of the Administrative Agent (which shall not be unreasonably withheld)
and shall thereafter be Fronting Banks hereunder for all purposes and shall have
the Revolving L/C Commitment noted under their signature and, if applicable, the
Revolving L/C Commitment of any other Fronting Bank shall be reduced by the
amount or amounts specified to the Administrative Agent and each affected
Fronting Bank and delivered concurrently with any notice of designation of an
additional Fronting Bank.
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SECTION 2.21. Replacement of Lenders. If any Lender is subject to an
order, judgment or decree of any Governmental Authority that purports to enjoin
or restrain such Lender from making Loans hereunder, then the Borrower may, at
its sole expense and effort and subject to Section 2.15, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and delegate,
at par plus accrued interest and fees, without recourse (in accordance with and
subject to the restrictions contained in Section 9.04), all its interests,
rights and obligations under this Agreement (including all of its Commitments
and the Loans at the time owing to it and participations in Letters of Credit
held by it and its obligations to acquire such participations) to a financial
institution specified by the Borrower (which may be another Lender, if a Lender
accepts such assignment), provided that (i) the Borrower shall have received the
prior written consent of the Administrative Agent (and, if a Revolving Credit
Commitment is being assigned, the Fronting Bank and Swingline Lender), which
consent shall not unreasonably be withheld or delayed, (ii) such assignment
shall not conflict with or violate any law, rule or regulation or order of any
court or other Governmental Authority and (iii) the Borrower shall have paid to
the assigning Lender all moneys accrued and owing hereunder to it (including
pursuant to this Section 2.21).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
------------------------------
Each of Holdings and the Borrower represents and warrants to each of
the Lenders that:
SECTION 3.01. Organization; Powers. Each of Holdings, the Borrower and
each of their Subsidiaries (a) is a partnership, limited liability company or
corporation duly organized, validly existing and in good standing (or, if
applicable in a foreign jurisdiction, enjoys the equivalent status under the
laws of any jurisdiction of organization outside the United States) under the
laws of the jurisdiction of its organization, (b) has all requisite power and
authority to own its property and assets and to carry on its business as now
conducted, (c) is qualified to do business in every jurisdiction where such
qualification is required, except where the failure so to qualify could not
reasonably be expected to result in a Material Adverse Effect, and (d) has the
power and authority to execute, deliver and perform its obligations under each
of the Loan Documents and each other agreement or instrument contemplated
thereby to which it is or will be a party and, in the case of the Borrower, to
borrow and otherwise obtain credit hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance by
Holdings, the Borrower and each of their Subsidiaries of each of the Loan
Documents to which it is a party, and the borrowings hereunder and the
transactions forming a part of the Transaction (a) have been duly authorized by
all corporate, stockholder, limited liability company or partnership action
required to be obtained by Holdings, the Borrower and such Subsidiaries and (b)
will not (i) violate (A) any provision of law, statute, rule or regulation, or
of the certificate or articles of incorporation or other constitutive documents
or By-laws of Holdings, the Borrower or any such Subsidiary, (B) any applicable
order of any court or any rule, regulation or order of any Governmental
Authority or (C) any provision of any indenture, certificate of designation for
preferred stock, agreement or other instrument to which Holdings, the Borrower
or any such Subsidiary is a party or by which any of them or any of their
property is or may be bound, (ii) be in conflict with, result in a breach of or
constitute (alone or with notice or lapse of time or both) a
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default under any such indenture, certificate of designation for preferred
stock, agreement or other instrument, where any such conflict, violation, breach
or default referred to in clause (i) or (ii) of this Section 3.02, individually
or in the aggregate could reasonably be expected to have a Material Adverse
Effect, or (iii) result in the creation or imposition of any Lien upon or with
respect to any property or assets now owned or hereafter acquired by Holdings,
the Borrower or any such Subsidiary, other than the Liens created by the Loan
Documents.
SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by Holdings and the Borrower and constitutes, and each other Loan
Document when executed and delivered by each Loan Party that is party thereto
will constitute, a legal, valid and binding obligation of such Loan Party
enforceable against each such Loan Party in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting creditors' rights generally and
except as enforceability may be limited by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
SECTION 3.04. Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transaction, except for
(a) the filing of Uniform Commercial Code financing statements and filings with
the United States Patent and Trademark Office and the United States Copyright
Office and comparable offices in foreign jurisdictions and equivalent filings in
foreign jurisdictions, (b) recordation of the Mortgages, (c) such as have been
made or obtained and are in full force and effect, (d) filing (which has been
completed or will be completed on the Closing Date) of an amended and restated
certificate of incorporation of Holdings and (e) such actions, consents and
approvals the failure to obtain or make which could not reasonably be expected
to result in a Material Adverse Effect.
SECTION 3.05. Financial Statements. Old Holdings has heretofore
furnished to the Lenders its consolidated balance sheets and consolidated
statements of operations, cash flows and partner's capital (deficit) (i) as of
and for the fiscal years ended December 31, 2000 and December 31, 2001, audited
by and accompanied by the opinion of Deloitte & Touche LLP, independent public
accountants, and (ii) as of and for the portion of the fiscal year ended March
31, 2002 (in the case of clause (ii), without footnotes and without a statement
of partner's capital (deficit)), in each case as filed with the SEC. Such
financial statements present fairly, in all material respects, the financial
position and results of operations of Old Holdings and its consolidated
Subsidiaries (including the Borrower) as of such dates and for such periods.
None of Holdings, its consolidated Subsidiaries and the Borrower has or shall
have as of the Closing Date any material Guarantee, contingent liability or
liability for taxes, or any long-term lease or unusual forward or long-term
commitment, including any interest rate or foreign currency hedging transaction,
which is not reflected in the foregoing statements or the notes thereto, other
than pursuant to the Loan Documents and except as specifically disclosed in
Schedule 3.05 to this Agreement. Such financial statements were prepared in
accordance with GAAP.
SECTION 3.06. No Material Adverse Change or Material Adverse Effect.
Since December 31, 2001 (but after giving effect to the consummation of the
Transaction) there has been no material adverse change (or occurrence which is
reasonably likely to result in a material adverse change) in the assets,
business, operations, properties, liabilities, profits or condition
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(financial or otherwise) of Holdings and its Subsidiaries taken as a whole or of
the Borrower and its Subsidiaries taken as a whole. Furthermore, since December
31, 2001 (but after giving effect to the Transaction) no Material Adverse Effect
has occurred.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each of
Holdings, the Borrower and each of their Subsidiaries has good and marketable
title to, or valid leasehold interests in, or easements or other limited
property interests in, all its material properties and assets (including all
Mortgaged Properties), except for minor defects in title that do not interfere
with its ability to conduct its business as currently conducted or to utilize
such properties and assets for their intended purposes and except where the
failure to have such title in the aggregate could not reasonably be expected to
have a Material Adverse Effect. All such material properties and assets are free
and clear of Liens, other than Liens expressly permitted by Section 6.02.
(b) Each of Holdings, the Borrower and each of their Subsidiaries has
complied with all obligations under all material leases to which it is a party,
except where the failure to comply would not have a Material Adverse Effect, and
all such leases are in full force and effect, except leases in respect of which
the failure to be in full force and effect could not reasonably be expected to
have a Material Adverse Effect. Each of Holdings, the Borrower and each of their
Subsidiaries enjoys peaceful and undisturbed possession under all such material
leases, other than leases which, individually or in the aggregate, are not
material to Holdings and its Subsidiaries taken as a whole or the Borrower and
its Subsidiaries taken as a whole, and in respect of which the failure to enjoy
peaceful and undisturbed possession could not reasonably be expected to,
individually or in the aggregate, result in a Material Adverse Effect.
(c) Each of Holdings, the Borrower and each of their Subsidiaries owns
or possesses, or could obtain ownership or possession of, on terms not
materially adverse to it, all patents, trademarks, service marks, trade names,
copyrights, licenses and rights with respect thereto necessary for the present
conduct of its business, without any known conflict with the rights of others,
and free from any burdensome restrictions, except where such conflicts and
restrictions could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect and except as set forth on Schedule 3.07(c).
(d) As of the Closing Date, none of Holdings, the Borrower and their
Subsidiaries has received any notice of, or has any knowledge of, any pending or
contemplated condemnation proceeding affecting any of the Mortgaged Properties
or any sale or disposition thereof in lieu of condemnation that remains
unresolved as of the Closing Date.
(e) None of Holdings, the Borrower and their Subsidiaries is obligated
on the Closing Date under any right of first refusal, option or other
contractual right to sell, assign or otherwise dispose of any Mortgaged Property
or any interest therein, except as permitted under Sections 6.02 or 6.05 or as
set forth on Schedule 3.07(e).
SECTION 3.08. Co-Borrower; Subsidiaries. (a) As of the Closing Date,
and after giving effect to the IPO Reorganization, Holdings will have no
Subsidiaries other than (x) Opco GP and (y) the Borrower and its Subsidiaries.
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(b) Schedule 3.08 sets forth as of the Closing Date the name and
jurisdiction of incorporation of each Subsidiary of Holdings and, as to each
such Subsidiary, the percentage of each class of Equity Interests owned by
Holdings or by any such Subsidiary.
(c) As of the Closing Date, there are no outstanding subscriptions,
options, warrants, calls, rights or other agreements or commitments (other than
stock options granted to employees or directors and directors' qualifying
shares) of any nature relating to any Equity Interests of Holdings or any of its
Subsidiaries, except under the Loan Documents or as set forth on Schedule 3.08.
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set forth
in Schedule 3.09, there are not any material actions, suits or proceedings at
law or in equity or by or before any Governmental Authority now pending or, to
the knowledge of Holdings or the Borrower, threatened against or affecting
Holdings, the Borrower or any of their Subsidiaries or any business, property or
rights of any such person (i) which involve any Loan Document or the Transaction
or (ii) as to which there is a reasonable possibility of an adverse
determination and which, if adversely determined, could, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect or
materially adversely affect the Transaction.
(b) None of Holdings, the Borrower, their Subsidiaries and their
respective material properties or assets is in violation of (nor will the
continued operation of their material properties and assets as currently
conducted violate) any law, rule or regulation (including any zoning, building,
Environmental Law, ordinance, code or approval or any building permit) or any
restriction of record or agreement affecting any Mortgaged Property, or is in
default with respect to any judgment, writ, injunction or decree of any
Governmental Authority, where such violation or default could reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.10. Agreements. None of Holdings, the Borrower and their
Subsidiaries is in default in any manner under any provision of any indenture or
other agreement or instrument evidencing Indebtedness, or any other material
agreement or instrument to which it is a party or by which it or any of its
properties or assets are or may be bound, in either case where such default
could reasonably be expected to result in a Material Adverse Effect. Immediately
after giving effect to the Transaction, no Default or Event of Default shall
have occurred and be continuing.
SECTION 3.11. Federal Reserve Regulations. (a) None of Holdings, the
Borrower and their Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately, (i) to
purchase or carry Margin Stock or to extend credit to others for the purpose of
purchasing or carrying Margin Stock or to refund indebtedness originally
incurred for such purpose, or (ii) for any purpose which entails a violation of,
or which is inconsistent with, the provisions of the Regulations of the Board,
including Regulation U or X.
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SECTION 3.12. Investment Company Act; Public Utility Holding Company
Act. None of Holdings, the Borrower and their Subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940, as amended, or (b) a "holding company" as defined in, or subject to
regulation under, the Public Utility Holding Company Act of 1935, as amended.
SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds of
the Loans and will request the issuance of Letters of Credit only for the
purposes specified in the preamble to this Agreement. The Co-Borrower shall not
use the proceeds of the Loans or Letters of Credit.
SECTION 3.14. Tax Returns. Each of Holdings, the Borrower and each of
their Subsidiaries has timely filed or caused to be timely filed all federal,
and all material state and local, tax returns required to have been filed by it
and has paid or caused to be paid all taxes shown thereon to be due and payable
by it and all assessments in excess of $2,000,000 in the aggregate received by
it, except taxes or assessments that are being contested in good faith by
appropriate proceedings in accordance with Section 5.03 and for which the
Borrower has set aside on its books adequate reserves and taxes, assessments,
charges, levies or claims in respect of property taxes for property that
Holdings, the Borrower or any of their Subsidiaries has determined to abandon
where the sole recourse for such tax, assessment, charge, levy or claim is to
such property. Each of Holdings, the Borrower and each of their Subsidiaries has
paid in full or made adequate provision (in accordance with GAAP) for the
payment of all taxes due with respect to all periods ending on or before the
Closing Date, which taxes, if not paid or adequately provided for, could
reasonably be expected to have a Material Adverse Effect. Except as set forth on
Schedule 3.14, as of the Closing Date, with respect to each of Holdings, the
Borrower and each of their Subsidiaries, (a) no material claims are being
asserted in writing with respect to any taxes, (b) no presently effective
waivers or extensions of statutes of limitation with respect to taxes have been
given or requested, (c) no tax returns are being examined by, and no written
notification of intention to examine has been received from, the Internal
Revenue Service or, with respect to any material potential tax liability, any
other taxing authority and (d) no currently pending issues have been raised in
writing by the Internal Revenue Service or, with respect to any material
potential tax liability, any other taxing authority. For purposes hereof,
"taxes" shall mean any present or future tax, levy, impost, duty, charge,
assessment or fee of any nature (including interest, penalties and additions
thereto) that is imposed by any Governmental Authority.
SECTION 3.15. No Material Misstatements. (a) The written information,
reports, financial statements, exhibits and schedules furnished by or on behalf
of Holdings, the Borrower or any of their Subsidiaries to the Administrative
Agent or any Lender in connection with the negotiation of any Loan Document or
included therein or delivered pursuant thereto (including the Confidential
Information Memorandum dated June 2002 relating to the Borrower (the
"Information Memorandum") but excluding the financial projections referred to in
Section 3.15(b)), when taken as a whole, did not contain, and as they may be
amended, supplemented or modified from time to time, will not contain, as of the
Closing Date any material misstatement of fact and did not omit, and as they may
be amended, supplemented or modified from time to time, will not omit, to state
as of the Closing Date any material fact necessary to make the statements
therein, in the light of the circumstances under which they
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were, are or will be made, not materially misleading in their presentation of
the Transaction or of Holdings, the Borrower and their Subsidiaries taken as a
whole.
(b) All financial projections concerning Holdings, the Borrower and
their Subsidiaries that are or have been made available to the Administrative
Agent or any Lender by Holdings, the Borrower or any such Subsidiary have been
or will be prepared in good faith based upon assumptions believed by Holdings
and the Borrower to be reasonable on the Closing Date.
SECTION 3.16. Employee Benefit Plans. Each of Holdings, the Borrower
and the ERISA Affiliates is in compliance with the applicable provisions of
ERISA and the provisions of the Code relating to ERISA and the regulations and
published interpretations thereunder and any similar applicable non-U.S. law
except for such noncompliance which could not reasonably be expected to result
in a Material Adverse Effect. No Reportable Event has occurred as to which
Holdings, the Borrower or any ERISA Affiliate was required to file a report with
the PBGC, other than reports for which the 30 day notice requirement is waived,
reports that have been filed and reports the failure of which to file could not
reasonably be expected to result in a Material Adverse Effect. As of the Closing
Date, the present value of all benefit liabilities under each Plan of Holdings,
the Borrower and the ERISA Affiliates (on a termination basis and based on those
assumptions used to fund such Plan) did not, as of the last annual valuation
date applicable thereto for which a valuation is available, exceed by more than
$15,000,000 the value of the assets of such Plan, and the present value of all
benefit liabilities of all underfunded Plans (based on those assumptions used to
fund each such Plan) did not, as of the last annual valuation dates applicable
thereto for which valuations are available, exceed by more than $15,000,000 the
value of the assets of all such underfunded Plans. None of Holdings, the
Borrower and the ERISA Affiliates has incurred or could reasonably be expected
to incur any Withdrawal Liability that could reasonably be expected to result in
a Material Adverse Effect. None of Holdings, the Borrower and the ERISA
Affiliates have received any written notification that any Multiemployer Plan is
in reorganization or has been terminated within the meaning of Title IV of
ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization
or to be terminated, where such reorganization or termination has resulted or
could reasonably be expected to result, through increases in the contributions
required to be made to such Plan or otherwise, in a Material Adverse Effect.
SECTION 3.17. Environmental Matters. Except as set forth in Schedule
3.17:
(a) There has not been a Release or threatened Release of Hazardous
Materials at, on, under or around the properties currently or formerly
owned, operated or leased by Holdings, the Borrower or any of their
Subsidiaries (the "Properties") in amounts or concentrations which (i)
constitute or constituted a violation of Environmental Laws, except as
could not reasonably be expected to have a Material Adverse Effect; (ii)
would reasonably be expected to give rise to an Environmental Claim that,
in any such case or in the aggregate, is reasonably likely to result in a
Material Adverse Effect; or (iii) could reasonably be expected to impair
materially the fair saleable value of any material Property;
(b) The Properties and all operations of Holdings, the Borrower and
their Subsidiaries are in compliance, and in all prior periods have been in
compliance, with all
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Environmental Laws, and all necessary Environmental Permits have been
obtained and are in effect, except to the extent that such non-compliance
or failure to obtain any necessary permits, in the aggregate, are not
reasonably likely to result in a Material Adverse Effect;
(c) None of Holdings, the Borrower or any of their Subsidiaries has
received any Environmental Claim in connection with the Properties or the
operations of the Borrower or its Subsidiaries or with regard to any person
whose liabilities for environmental matters Holdings, the Borrower or any
of their Subsidiaries has retained or assumed, in whole or in part,
contractually, by operation of law or otherwise, which, in either such case
or in the aggregate, is reasonably likely to result in a Material Adverse
Effect;
(d) Hazardous Materials have not been transported from the Properties,
nor have Hazardous Materials been generated, treated, stored or disposed of
at, on, under or around any of the Properties in a manner that could
reasonably give rise to liability under any Environmental Law, nor have any
of Holdings, the Borrower or any of their Subsidiaries retained or assumed
any liability, contractually, by operation of law or otherwise, with
respect to the generation, treatment, storage or disposal of Hazardous
Materials, which, in each case, individually or in the aggregate, is
reasonably likely to result in a Material Adverse Effect; and
(e) No Lien in favor of any Governmental Authority for (i) any
liability under any Environmental Law or (ii) damages arising from or costs
incurred by such Governmental Authority in response to a Release or
threatened Release of Hazardous Materials into the environment has been
recorded with respect to the Properties except for Liens permitted by
Section 6.02.
SECTION 3.18. Capitalization of Holdings and the Borrower. The Equity
Interests issued and outstanding for each of Holdings and the Borrower is set
forth on Schedule 3.18 as of the Closing Date (after giving effect to the IPO
Reorganization). All outstanding partnership interests of the Borrower, on and
after the Closing Date, will be owned beneficially and of record by Holdings
(except that 1% thereof may be owned by Opco GP) and, on and after the Closing
Date, will be free and clear of all Liens and encumbrances whatsoever other than
the Liens created by the Loan Documents.
SECTION 3.19. Security Documents. (a) The Pledge Agreement is effective
to create in favor of the Collateral Agent, as pledgee, for the ratable benefit
of the Secured Parties, a legal, valid and enforceable security interest in the
Pledge Agreement Collateral described in the Pledge Agreement and, upon the
filing of UCC-1 Financing Statements in the required jurisdictions (which
filings have been made or, if this representation and warranty is made on any
date occurring prior to the tenth Business Day following the Closing Date will
be made within ten Business Days following the Closing Date), the Pledge
Agreement shall constitute a fully perfected first priority Lien on, and
security interest in, all right, title and interest of the pledgors thereunder
in such Pledge Agreement Collateral and, to the extent contemplated therein and
subject to (Section) 9-315 of the Uniform Commercial Code, the proceeds thereof,
in each case prior and superior in right to any other Person.
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(b) The Security Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Security Agreement Collateral described
therein, and, when financing statements in appropriate form are filed in the
offices specified on the schedules to the Security Agreement, the Security
Agreement will constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the grantors thereunder in such Security
Agreement Collateral and, to the extent contemplated therein and subject to
(Section) 9-315 of the Uniform Commercial Code, the proceeds thereof, in each
case prior and superior in right to any other person, other than with respect to
Liens expressly permitted by Section 6.02. The recordation of (x) the Grant of
Security Interest in U.S. Patents and (y) the Grant of Security Interest in U.S.
Trademarks in the respective form attached to the Security Agreement, in each
case in the United States Patent and Trademark Office, together with filings on
Form UCC-1 made pursuant to the Security Agreement, will create, a perfected
security interest in the United States trademarks and patents covered by the
Security Agreement, and the recordation of the Grant of Security Interest in
U.S. Copyrights in the form attached to the Security Agreement with the United
States Copyright Office, together with filings on Form UCC-1 made pursuant to
the Security Agreement, will create, a perfected security interest in the United
States copyrights covered by the Security Agreement.
(c) The Mortgages are effective to create in favor of the Collateral
Agent, for the ratable benefit of the Secured Parties, a legal, valid and
enforceable Lien on all of the Loan Parties' right, title and interest in and to
the Mortgaged Properties thereunder and, to the extent contemplated therein and
subject to (Section) 9-315 of the Uniform Commercial Code, the proceeds thereof,
and when the Mortgages are filed in the offices specified on the schedules
thereto and when financing statements in appropriate form are filed in the
offices specified on the schedules thereto, each Mortgage will constitute an
enforceable mortgage Lien on, and fully perfected security interest in, all
right, title and interest of the Loan Parties in the Mortgaged Property subject
thereto and, to the extent contemplated therein and subject to (Section) 9-315
of the Uniform Commercial Code, the proceeds thereof, in each case prior and
superior in right to any other person, other than with respect to the rights of
persons pursuant to Liens expressly permitted by Section 6.02.
SECTION 3.20. Location of Real Property and Leased Premises. (a)
Schedule 3.20 lists completely and correctly as of the Closing Date all real
property owned by Holdings and its Subsidiaries and the addresses thereof, other
than individual properties that have an original cost of less than $200,000. As
of the Closing Date, Holdings and its Subsidiaries own in fee all the real
property set forth as being owned by them on Schedule 3.20.
(b) Schedule 3.20 lists completely and correctly as of the Closing Date
all real property leased by Holdings and its Subsidiaries and the addresses
thereof. As of the Closing Date, the Borrower and the Subsidiaries have valid
leases in all the real property set forth as being leased by them on Schedule
3.20.
SECTION 3.21. Solvency. (a) Immediately after the consummation of the
Transaction and the other transactions to occur on the Closing Date and
immediately following the making of each Loan made, and the issuance of each
Letter of Credit issued, on the Closing Date and after giving effect to the
application of the proceeds thereof, (i) the fair value of the assets of each of
Holdings (individually), Holdings and its Subsidiaries on a consolidated basis,
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the Borrower (individually) and the Borrower and its Subsidiaries on a
consolidated basis, at a fair valuation, will exceed the debts and liabilities,
direct, subordinated, contingent or otherwise, of each of Holdings
(individually), Holdings and its Subsidiaries on a consolidated basis, the
Borrower (individually) and the Borrower and its Subsidiaries on a consolidated
basis; (ii) the present fair saleable value of the property of each of Holdings
(individually), Holdings and its Subsidiaries on a consolidated basis, the
Borrower (individually) and the Borrower and its Subsidiaries on a consolidated
basis will be greater than the amount that will be required to pay the probable
liability of each of Holdings (individually), Holdings and its Subsidiaries on a
consolidated basis, the Borrower (individually) and the Borrower and its
Subsidiaries on a consolidated basis on their debts and other liabilities,
direct, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (iii) each of Holdings (individually),
Holdings and its Subsidiaries on a consolidated basis, the Borrower
(individually) and the Borrower and its Subsidiaries on a consolidated basis
will be able to pay their debts and liabilities, direct, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and
matured; and (iv) each of Holdings (individually), Holdings and its Subsidiaries
on a consolidated basis, the Borrower (individually) and the Borrower and its
Subsidiaries on a consolidated basis will not have unreasonably small capital
with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted following the
Closing Date.
(b) Each of Holdings and the Borrower does not intend to, and does not
believe that it or any of its respective Subsidiaries will, incur debts beyond
its ability to pay such debts as they mature, taking into account the timing and
amounts of cash to be received by it or any such Subsidiary and the timing and
amounts of cash to be payable on or in respect of its Indebtedness or the
Indebtedness of any such Subsidiary.
SECTION 3.22. Labor Matters. Except as set forth in Schedule 3.22,
there are no strikes pending or threatened against Holdings, the Borrower or any
of their Subsidiaries that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. The hours worked and
payments made to employees of Holdings, the Borrower and their Subsidiaries have
not been in violation in any material respect of the Fair Labor Standards Act or
any other applicable law dealing with such matters. All material payments due
from Holdings, the Borrower or any of their Subsidiaries or for which any claim
may be made against Holdings, the Borrower or any of their Subsidiaries, on
account of wages and employee health and welfare insurance and other benefits
have been paid or accrued as a liability on the books of Holdings, the Borrower
or such Subsidiary to the extent required by GAAP. The consummation of the
Transaction will not give rise to a right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement
to which Holdings, the Borrower or any of their Subsidiaries (or any
predecessor) is a party or by which Holdings, the Borrower or any of their
Subsidiaries (or any predecessor) is bound, other than collective bargaining
agreements which, individually or in the aggregate, are not material to Holdings
and its Subsidiaries taken as a whole.
SECTION 3.23. Insurance. Schedule 3.23 sets forth a true, complete and
correct description of all material insurance maintained by or on behalf of
Holdings, the Borrower or their domestic Subsidiaries as of the Closing Date. As
of such date, such insurance is in full force and effect.
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SECTION 3.24. Subordination: Designation of the Loan Documents as
"Designated Senior Indebtedness"; Etc. (a) (i) The subordination provisions
contained in the Senior Subordinated Note Documents and the New Senior
Subordinated Note Documents, in each case, are enforceable against the Borrower,
the Co-Borrower, Holdings and the holders of the Senior Subordinated Notes and
the New Senior Subordinated Notes, as the case may be, (ii) all Obligations of
the Borrower and the Co-Borrower hereunder and in the other Loan Documents are
within the definitions of "Designated Senior Indebtedness" and "Senior
Indebtedness" included in the respective subordination provisions and (iii) this
Agreement constitutes (and is hereby designated by the Borrower as) the "New
Credit Facility", as such term is defined in each of the Senior Subordinated
Note Documents, the New Senior Subordinated Note Documents and the Holdings
Discount Note Documents. In addition, the Borrower hereby designates the
Indebtedness under this Agreement as "Designated Senior Indebtedness" for the
purposes of the definition of "Designated Senior Indebtedness" contained in each
of the Senior Subordinated Note Indenture and the New Senior Subordinated Note
Indenture, with all such Obligations of the Borrower and the Co-Borrower to be
afforded the benefit of the subordination provisions contained in the each of
the Senior Subordinated Note Indenture, the other Senior Subordinated Note
Documents, the New Senior Subordinated Note Indenture and the other New Senior
Subordinated Note Documents.
(b) On the Closing Date, all Loans incurred (and Letters of Credit
issued) on such date will be incurred (or issued), and are permitted to be
incurred (or issued), pursuant to the Fixed Charge Coverage Ratio (as defined
therein) test contained in the proviso of the first sentence of Section 4.04 of
each of the Senior Subordinated Note Indenture and the New Senior Subordinated
Note Indenture, and are permitted to be incurred (or issued) in accordance with
the terms thereof.
(c) After the Closing Date, all Revolving Loans and Swingline Loans
incurred (and Letters of Credit issued) pursuant hereto shall be permitted
pursuant to clause (a) of the second sentence of Section 4.04 of each of the
Senior Subordinated Note Indenture and the New Senior Subordinated Note
Indenture.
(d) All incurrences of Loans and the issuance of all Letters of Credit
as permitted under this Agreement are, and when incurred or issued will be,
permitted under (and shall give rise to no breach or violation of either of) the
Senior Subordinated Note Indenture or the New Senior Subordinated Note
Indenture.
SECTION 3.25. Legal Names; Organizational Identification Numbers;
Jurisdiction and Type of Organization; Etc. Schedule 3.25 sets forth a true and
correct list, as of the Closing Date, of the exact legal name of each Loan
Party, the organizational identification number (if any) of such Loan Party, the
jurisdiction of organization of such Loan Party and the type of organization of
such Loan Party.
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ARTICLE IV
CONDITIONS OF LENDING
The obligations of (a) the Lenders (including, without limitation, the
Swingline Lender) to make Loans and (b) each Fronting Bank to issue Letters of
Credit hereunder (each, a "Credit Event") are subject to the satisfaction of the
following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing and on
the date of each issuance or renewal of a Letter of Credit (other than a
Borrowing in which Revolving Loans are refinanced with new Revolving Loans as
contemplated by Section 2.02(f) without any increase in the aggregate principal
amount of Revolving Loans outstanding and any extension or renewal of any Letter
of Credit without any increase in the stated amount of such Letter of Credit):
(a) The Administrative Agent shall have received, in the case of a
Borrowing, a notice of such Borrowing as required by Section 2.03 (or such
notice shall have been deemed given in accordance with the last paragraph of
Section 2.03) or, in the case of the issuance of a Letter of Credit, the
applicable Fronting Bank and the Administrative Agent shall have received a
notice requesting the issuance of such Letter of Credit as required by Section
2.20(a).
(b) The representations and warranties set forth in Article III hereof
shall be true and correct in all material respects on and as of the date of such
Borrowing or issuance of such Letter of Credit, as the case may be, with the
same effect 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 such representations and warranties shall be true and correct in all
material respects as of such earlier date).
(c) At the time of and immediately after such Borrowing or issuance of
such Letter of Credit, as the case may be, no Event of Default or Default shall
have occurred and be continuing.
Each Borrowing and each issuance of a Letter of Credit (except those
specified in the parenthetical contained in the introductory paragraph of this
Section 4.01) shall be deemed to constitute a representation and warranty by the
Borrower on the date of such Borrowing or issuance, as the case may be, as to
the matters specified in paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. First Credit Event. On the Closing Date:
(a) The Administrative Agent shall have received, on behalf of itself,
the other Agents and the Lenders, a favorable written opinion of (i) Xxxxxxx
Xxxxxxx & Xxxxxxxx, special counsel for Holdings and the Borrower, substantially
to the effect set forth in Exhibit I-1, (ii) Xxxxxx, Xxxxx & Bockius, special
Pennsylvania counsel for Holdings and the Borrower, substantially to the effect
set forth in Exhibit I-2 and (iii) local counsel satisfactory to the Agents, in
each case (A) dated the Closing Date, (B) addressed to the Fronting Bank, the
Agents and the Lenders, and (C) covering such other matters relating to the Loan
Documents and the Transaction as the Agents shall reasonably request, and each
of Holdings and the Borrower hereby instructs its counsel to deliver such
opinions.
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(b) All legal matters incident to this Agreement, the borrowings and
extensions of credit hereunder and the other Loan Documents shall be reasonably
satisfactory to the Agents and to the Lenders.
(c) The Administrative Agent shall have received in the case of each
Loan Party each of the items referred to in clauses (A), (B) and (C) below: (A)
a copy of the certificate or articles of incorporation, partnership agreement or
limited liability agreement, including all amendments thereto, of each Loan
Party, (x) in the case of a corporation, certified as of a recent date by the
Secretary of State of the state of its organization, and a certificate as to the
good standing of each such Loan Party as of a recent date from such Secretary of
State or (y) in the case of a partnership or of a limited liability company,
certified by the Secretary or Assistant Secretary of each such Loan Party; (B) a
certificate of the Secretary or Assistant Secretary of each Loan Party dated the
Closing Date and certifying (w) that attached thereto is a true and complete
copy of the by-laws (or partnership agreement, limited liability company
agreement or other equivalent governing documents) of such Loan Party as in
effect on the Closing Date and at all times since a date prior to the date of
the resolutions described in clause (x) below, (x) that attached thereto is a
true and complete copy of resolutions duly adopted by the Board of Directors (or
equivalent governing body) of such Loan Party (or, its managing general partner
or managing member) authorizing the execution, delivery and performance of the
Loan Documents to which such person is a party and, in the case of the Borrower,
the borrowings hereunder, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect, (y) that the certificate
or articles of incorporation, partnership agreement or limited liability
agreement of such Loan Party have not been amended since the date of the last
amendment thereto disclosed pursuant to clause (A) above, and (z) as to the
incumbency and specimen signature of each officer executing any Loan Document or
any other document delivered in connection herewith on behalf of such Loan
Party; (C) a certificate of another officer as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing the certificate
pursuant to (B) above; and (b) such other documents as the Agents and the
Lenders may reasonably request.
(d) The Administrative Agent shall have received a certificate of the
Borrower, dated the Closing Date and signed by the Borrower, confirming
compliance with the conditions precedent set forth in paragraphs (b) and (c) of
Section 4.01 and (except to the extent that any such condition is required to be
satisfactory or determined by the Lenders and/or the Agents) paragraphs (j),
(n), (o) and (p) of this Section 4.02.
(e) Each of the Guarantee Agreements shall have been duly executed by
the parties thereto and delivered to the Collateral Agent and shall be in full
force and effect.
(f) (i) The Pledge Agreement shall have been duly executed by the
parties thereto and delivered to the Collateral Agent and shall be in full force
and effect, and all Certificated Securities (as such term is defined in the
Pledge Agreement), shall have been delivered to the Collateral Agent, (x)
endorsed in blank in the case of promissory notes constituting Pledge Agreement
Collateral, (y) together with executed and undated endorsements for transfer in
the case of equity interests constituting certificated Pledge Agreement
Collateral and (z) together with evidence that all other actions necessary or,
in the reasonable opinion of the Collateral Agent, desirable, to perfect the
security interests purported to be created by the Pledge
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Agreement have been taken; and (ii) the Security Agreement shall have been duly
executed by the Loan Parties party thereto and shall have been delivered to the
Collateral Agent and shall be in full force and effect on such date and each
document (including each Uniform Commercial Code financing statement) required
by law or reasonably requested by the Administrative Agent to be filed,
registered or recorded in order to create in favor of the Collateral Agent for
the benefit of the Secured Parties a valid, legal and perfected first-priority
security interest in and lien on the Collateral described in such agreement
(subject to any Lien expressly permitted by Section 6.02) shall have been
delivered to the Collateral Agent.
(g) The Collateral Agent shall have received (i) the results of a
search of the Uniform Commercial Code filings made with respect to the Loan
Parties in the states in which the chief executive office of each such person is
located and the other jurisdictions in which Uniform Commercial Code filings are
to be made pursuant to the preceding paragraph (as well as any jurisdictions
where such Uniform Commercial Code filings would have been made pursuant to the
Uniform Commercial Code as in effect in the relevant States prior to July 1,
2001), together with copies of the financing statements disclosed by such search
and (ii) the results of equivalent searches made in each other jurisdiction
requested by the Administrative Agent, in each case accompanied by evidence
satisfactory to the Agents that the Liens indicated in any such financing
statement (or similar document) or otherwise disclosed in such searches would be
permitted under Section 6.02 or have been released.
(h) (i) Each of the Mortgages, substantially in the form of Exhibit D
with appropriate changes for local law, relating to each of the Mortgaged
Properties shall have been duly executed by the parties thereto and delivered to
the Collateral Agent and shall be in full force and effect, (ii) each of such
Mortgaged Properties shall not be subject to any Lien other than those expressly
permitted under Section 6.02, (iii) a lender's title insurance policy, paid for
by the Borrower, in form and substance acceptable to the Agents, insuring such
Mortgage as a first lien on such Mortgaged Property (subject to any Lien
expressly permitted by Section 6.02 or otherwise agreed to by the Agents) shall
have been received by the Administrative Agent and (iv) the Collateral Agent
shall have received such other documents, including a policy or policies of
title insurance issued by a nationally recognized title insurance company,
together with such endorsements, coinsurance and reinsurance as may be requested
by the Administrative Agent, insuring the Mortgages as valid first Liens on the
Mortgaged Properties, free of Liens other than those expressly permitted under
Section 6.02 or otherwise agreed to by the Agents, together with such surveys,
abstracts, appraisals and legal opinions required to be furnished pursuant to
the terms of the Mortgages or this Agreement or as reasonably requested in
writing by the Agents or the Lenders.
(i) The Administrative Agent shall have received copies of, or an
insurance broker's or agent's certificate as to coverage under, the insurance
policies required by Section 5.02 and the applicable provisions of the Security
Documents, each of which policies shall be endorsed or otherwise amended to
include a "standard" or "New York" lender's loss payable endorsement and to name
the Collateral Agent as additional insured, in form and substance satisfactory
to the Agents.
(j) The IPO Reorganization, the Initial Public Offering, the Tender
Offer, the Refinancing and the other portions of the Transaction shall have been
consummated in all
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material respects simultaneously with the incurrence of the initial Loans
hereunder in accordance with applicable law and all related documentation, in
each case in the form previously approved by the Administrative Agent, and
otherwise on terms reasonably satisfactory to the Agents. Furthermore, all other
conditions to the obligations of Holdings and its Affiliates set forth in the
documents governing each portion of the Transaction shall have been satisfied in
all material respects without giving effect to any waivers or amendments adverse
to Holdings and its Subsidiaries or the Lenders not approved by the
Administrative Agent.
(k) The Borrower shall have received gross cash proceeds of at least
$95,000,000 from the issuance of the New Senior Subordinated Notes. The terms
and conditions of the New Senior Subordinated Notes shall be as described in the
Form S-1 filed with the SEC and shall be substantially similar to terms and
conditions of the Senior Subordinated Notes and otherwise reasonably
satisfactory in form and substance to the Agents.
(l) Holdings shall have received gross cash proceeds of at least
$225,000,000 from the Initial Public Offering. The terms and conditions of the
Initial Public Offering shall be as described in the Form S-1 filed with the SEC
with respect thereto.
(m) Holdings shall have conducted a tender offer/consent solicitation
with respect to the Holdings Discount Notes pursuant to that certain Offer to
Purchase for Cash any and all of the Outstanding 10-3/4% Senior Discount Notes
due 2009 and Solicitation for Consents for Amendments of Related Indenture,
dated _______ __, 2002. Holdings shall, concurrently with the consummation of
the Transaction, purchase all Holdings Discount Notes validly tendered pursuant
to the Tender Offer. On the Closing Date, the Administrative Agent shall have
received true and correct copies of the all material documents related to the
Tender Offer, certified as such by an appropriate officer of Holdings.
(n) The cash proceeds received from the incurrence of the Senior
Subordinated Notes and the Initial Public Offering, when added to the aggregate
principal amount of Term Loans and up to $5,000,000 (or such other amount as may
be agreed to by the Borrower and the Agents) of Revolving Loans incurred on the
Closing Date, shall be sufficient to effect the Transaction and to pay all fees
and expenses in connection therewith.
(o) After giving effect to the consummation of the Transaction,
Holdings and its Subsidiaries shall have no outstanding Indebtedness or
preferred equity, except as permitted by Sections 6.01 and 6.04.
(p) All necessary material governmental and material third party
approvals and/or consents in connection with the Transaction, the transactions
contemplated by the Loan Documents and otherwise referred to herein shall have
been obtained and remain in effect, and all applicable waiting periods shall
have expired without any action being taken by any competent authority which
restrains, prevents, or imposes materially adverse conditions upon, the
consummation of the Transaction or the transactions contemplated by the Loan
Documents or otherwise referred to herein.
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(q) All agreements relating to, and the corporate and capital structure
of, Holdings and its Subsidiaries, in each case as the same will exist after
giving effect to the consummation of the Transaction, shall be reasonably
satisfactory to the Agents.
(r) All costs, fees, expenses (including, without limitation,
reasonable legal fees and expenses) and other compensation contemplated hereby,
payable to the Lenders and the Agents or payable in respect of the Transaction,
shall have been paid to the extent due and invoiced.
(s) The Lenders shall have received a solvency certificate from the
Chief Financial Officer of Holdings, in form and substance reasonably
satisfactory to the Agents, setting forth the conclusions that, after giving
effect to the Transaction and the incurrence of all the financings contemplated
herein, each of Holdings, individually, Holdings and its Subsidiaries, taken as
a whole, the Borrower, individually, and the Borrower and its Subsidiaries,
taken as a whole, are not insolvent and will not be rendered insolvent by the
indebtedness incurred in connection therewith, and will not be left with
unreasonably small capital with which to engage in their businesses and will not
have incurred debts beyond their ability to pay such debts as they mature.
(t) The Administrative Agent shall have received (i) historical
financial statements for Holdings and its Subsidiaries for each quarterly period
ended after March 31, 2002 and twenty Business Days or more prior to the Closing
Date, (ii) a pro forma opening balance sheet of Holdings and its Subsidiaries
after giving effect to the Transaction and (iii) projections through December
31, 2007 for Holdings and its Subsidiaries after giving effect to the
Transaction (it being understood that the projections previously delivered to
the Administrative Agent are satisfactory), all of which financial statements or
projections shall be consistent in all material respects with the financial
information previously provided to the Administrative Agent by Holdings.
(u) On the Closing Date, the Administrative Agent shall have received a
certificate, dated the Closing Date and signed on behalf of the Borrower by a
Responsible Officer of the Borrower, (I) certifying that this Agreement and the
incurrence of all Loans and the issuance of all Letters of Credit on the Closing
Date (determined as if the Borrower utilized the entire Total Revolving Credit
Commitment on the Closing Date) are permitted under Section 4.04 of each of the
New Senior Subordinated Note Indenture, the Senior Subordinated Note Indenture
and the Holdings Discount Note Indenture and (II) containing financial
calculations (in form and substance reasonably satisfactory to the
Administrative Agent) establishing compliance with the Fixed Charge Coverage
Ratio (as defined in each of the Senior Subordinated Note Indenture, the New
Senior Subordinated Note Indenture and the Holdings Discount Note Indenture) of
greater than 1.75:1.0 (after giving effect to the incurrence of all Loans and
the issuance of all Letters of Credit on the Closing Date (determined as if the
Borrower utilized the entire Revolving Credit Commitment on the Closing Date))
as required by the proviso to Section 4.04 of each of the Senior Subordinated
Notes Indenture, the New Senior Subordinated Note Indenture and the Holdings
Discount Note Indenture.
(v) On the Closing Date, the total commitments in respect of the
Existing Credit Agreement shall have been terminated, and all loans and notes
(together with interest thereon)
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with respect thereto shall have been repaid in full, all letters of credit
issued thereunder shall have been terminated (or incorporated as Existing
Letters of Credit hereunder) and all other amounts (including premiums) owing
pursuant to the Existing Credit Agreement shall have been repaid in full and all
documents in respect of the Existing Credit Agreement and all guarantees with
respect thereto shall have been terminated (except as to indemnification and
similar provisions, which may survive to the extent provided therein) and be of
no further force and effect. In addition, the creditors in respect of the
Existing Credit Agreement shall have terminated and released all security
interests in and Liens created pursuant to any security documentation relating
to the Existing Credit Agreement, and such creditors shall have returned all
such assets to the Borrower or the relevant Loan Party. The Administrative Agent
shall have received evidence that the matters set forth in this Section 4.02(v)
have been satisfied on such date.
ARTICLE V
AFFIRMATIVE COVENANTS
Each of Holdings and the Borrower covenants and agrees with each Lender
that so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan, all Fees
and all other expenses or amounts payable under any Loan Document shall have
been paid in full and all Letters of Credit have been canceled or have expired
and all amounts drawn thereunder have been reimbursed in full, unless the
Required Lenders shall otherwise consent in writing, each of Holdings and the
Borrower will, and will cause each of their Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise expressly permitted under
Section 6.05, and except for the liquidation or dissolution of Subsidiaries of
the Borrower if the assets of such entities to the extent they exceed estimated
liabilities are acquired by the Borrower or a Wholly Owned Subsidiary of the
Borrower in such liquidation or dissolution, provided that Subsidiaries of the
Borrower that are Guarantors may not be liquidated into Subsidiaries of the
Borrower that are not Guarantors and domestic Subsidiaries of the Borrower may
not be liquidated into Foreign Subsidiaries of the Borrower.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; comply in all material respects with
all applicable laws, rules, regulations (including any zoning, building,
Environmental Law, ordinance, code or approval or any building permits or any
restrictions of record or agreements affecting the Mortgaged Properties) and
orders of any Governmental Authority, whether now in effect or hereafter
enacted; and at all times maintain and preserve all property material to the
conduct of such business and keep such property in good repair, working order
and condition and from time to time make, or cause to be made, all needful and
proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith, if any,
may be properly conducted at all times (in each case except as expressly
permitted by this Agreement); in each case in this paragraph (b)
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except where the failure, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect.
SECTION 5.02. Insurance. (a) Keep its insurable properties insured at
all times by financially sound and reputable insurers in such amounts as shall
be customary for similar businesses and maintain such other reasonable insurance
(including, to the extent consistent with past practices, self-insurance), of
such types, to such extent and against such risks, as is customary with
companies in the same or similar businesses, and maintain such other insurance
as may be required by law or any other Loan Document.
(b) Cause all such property and casualty insurance policies with
respect to the Mortgaged Properties to be endorsed or otherwise amended to
include a "standard" or "New York" lender's loss payable endorsement, in form
and substance reasonably satisfactory to the Administrative Agent and the
Collateral Agent, which endorsement shall provide that, from and after the
Closing Date, if the insurance carrier shall have received written notice from
the Administrative Agent or the Collateral Agent of the occurrence of an Event
of Default, the insurance carrier shall pay all proceeds otherwise payable to
the Borrower or the Loan Parties under such policies directly to the Collateral
Agent; cause all such policies to provide that neither the Borrower, the
Administrative Agent, the Collateral Agent nor any other party shall be a
coinsurer thereunder and to contain a "Replacement Cost Endorsement", without
any deduction for depreciation, and such other provisions as the Administrative
Agent or the Collateral Agent may reasonably (in light of a Default or a
material development in respect of the insured Mortgaged Property) require from
time to time to protect their interests; deliver original or certified copies of
all such policies or a certificate of an insurance broker to the Collateral
Agent; cause each such policy to provide that it shall not be canceled, modified
or not renewed upon not less than 30 days' prior written notice thereof by the
insurer to the Administrative Agent and the Collateral Agent; deliver to the
Administrative Agent and the Collateral Agent, prior to the cancellation,
modification or nonrenewal of any such policy of insurance, a copy of a renewal
or replacement policy (or other evidence of renewal of a policy previously
delivered to the Administrative Agent and the Collateral Agent), or insurance
certificate with respect thereto, together with evidence satisfactory to the
Administrative Agent and the Collateral Agent of payment of the premium
therefor.
(c) If at any time the area in which the Premises (as defined in the
Mortgages) are located is designated a "flood hazard area" in any Flood
Insurance Rate Map published by the Federal Emergency Management Agency (or any
successor agency), obtain flood insurance in such reasonable total amount as the
Administrative Agent, the Collateral Agent or the Required Lenders may from time
to time reasonably require, and otherwise comply with the National Flood
Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as
it may be amended from time to time.
(d) With respect to each Mortgaged Property, carry and maintain
comprehensive general liability insurance including the "broad form CGL
endorsement" and coverage on an occurrence basis against claims made for
personal injury (including bodily injury, death and property damage) and
umbrella liability insurance against any and all claims, in no event for a
combined single limit of less than $1,000,000, naming the Collateral Agent as an
additional insured, on forms reasonably satisfactory to the Collateral Agent.
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(e) Notify the Administrative Agent and the Collateral Agent promptly
whenever any separate insurance concurrent in form or contributing in the event
of loss with that required to be maintained under this Section 5.02 is taken out
by Holdings, the Borrower or any of their Subsidiaries; and promptly deliver to
the Administrative Agent and the Collateral Agent a duplicate original copy of
such policy or policies, or insurance certificate with respect thereto.
(f) In connection with the covenants set forth in this Section 5.02, it
is understood and agreed that:
(i) none of the Agents, the Lenders, any Fronting Bank and their
respective agents or employees shall be liable for any loss or damage
insured by the insurance policies required to be maintained under this
Section 5.02, it being understood that (A) the Borrower and the other Loan
Parties shall look solely to their insurance companies or any other parties
other than the aforesaid parties for the recovery of such loss or damage
and (B) such insurance companies shall have no rights of subrogation
against the Agents, the Lenders, any Fronting Bank or their agents or
employees. If, however, the insurance policies do not provide waiver of
subrogation rights against such parties, as required above, then each of
Holdings and the Borrower hereby agree, to the extent permitted by law, to
waive, and to cause each of their Subsidiaries to waive, its right of
recovery, if any, against the Agents, the Lenders, any Fronting Bank and
their agents and employees; and
(ii) the designation of any form, type or amount of insurance coverage
by the Administrative Agent, the Collateral Agent or the Required Lenders
under this Section 5.02 shall in no event be deemed a representation,
warranty or advice by the Administrative Agent, the Collateral Agent or the
Lenders that such insurance is adequate for the purposes of the business of
Holdings, the Borrower and their Subsidiaries or the protection of their
properties.
SECTION 5.03. Taxes. Pay and discharge promptly when due all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits or in respect of its property, before the same shall become
delinquent or in default, as well as all lawful claims for labor, materials and
supplies or otherwise which, if unpaid, might give rise to a Lien upon such
properties or any part thereof; provided, however, that such payment and
discharge shall not be required with respect to any such tax, assessment,
charge, levy or claim so long as (a) the validity or amount thereof shall be
contested in good faith by appropriate proceedings and Holdings, the Borrower or
the affected Subsidiary, as applicable, shall have set aside on its books
reserves in accordance with GAAP with respect thereto, (b) such tax, assessment,
charge, levy or claim is in respect of property taxes for property that
Holdings, the Borrower or one of their Subsidiaries has determined to abandon
and the sole recourse for such tax, assessment, charge, levy or claim is to such
property or (c) the amount of such taxes, assessments, charges, levies and
claims and interest and penalties thereon does not exceed $2,000,000 in the
aggregate.
SECTION 5.04. Financial Statements, Reports, Etc. Furnish to the Agents
and each Lender:
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(a) within 90 days after the end of each fiscal year, a consolidated
balance sheet and related statements of operations, cash flows and stockholders'
equity showing the financial position of each of Holdings and its Subsidiaries
and the Borrower and its Subsidiaries as of the close of such fiscal year and
the consolidated results of their operations during such year, all audited by
independent public accountants of recognized national standing reasonably
acceptable to the Administrative Agent and accompanied by an opinion of such
accountants (which shall not be qualified in any material respect) to the effect
that such consolidated financial statements fairly present, in all material
respects, the financial position and results of operations of each of Holdings
and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP, it being understood that the delivery by Holdings
of its Form 10-K as filed with the SEC shall satisfy its requirements (but not
those of the Borrower and its Subsidiaries) under this Section 5.04(a);
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year, a consolidated balance sheet and related
statements of operations and cash flows showing the financial position of each
of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the
close of such fiscal quarter and the consolidated results of their operations
during such fiscal quarter and the then-elapsed portion of the fiscal year, all
certified by a Financial Officer of Holdings or the Borrower, as the case may
be, on behalf of Holdings or the Borrower, respectively, as fairly presenting,
in all material respects, the financial position and results of operations of
Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case
may be, in each case on a consolidated basis in accordance with GAAP (except for
the absence of footnotes), subject to normal year-end audit adjustments, it
being understood that the delivery by Holdings of its Form 10-Q as filed with
the SEC shall satisfy its requirements (but not those of the Borrower and its
Subsidiaries) under this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or
(b) above, a certificate of the accounting firm or Financial Officer on behalf
of the Borrower opining on or certifying such statements (which certificate,
when furnished by an accounting firm, may be limited to accounting matters and
disclaim responsibility for legal interpretations) (i) certifying that no Event
of Default or Default has occurred or, if such an Event of Default or Default
has occurred, specifying the nature and extent thereof and any corrective action
taken or proposed to be taken with respect thereto and (ii) setting forth
computations in reasonable detail satisfactory to the Administrative Agent
demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and
6.12 (it being understood that the information required by this clause (ii) may
be provided in a certificate of a Financial Officer on behalf of the Borrower
instead of from such accounting firm);
(d) promptly after the same become publicly available, copies of all
periodic and other publicly available reports, proxy statements and, to the
extent requested by the Administrative Agent, other materials filed by Holdings,
the Borrower or any of their Subsidiaries with the SEC, or distributed to its
shareholders generally, as the case may be;
(e) if, as a result of any change in accounting principles and policies
from those as in effect on the date of this Agreement (other than in respect of
the capitalization of repairs and maintenance expenses as provided in the
definition of GAAP), the consolidated financial statements of Holdings or the
Borrower (and their respective Subsidiaries) delivered pursuant to
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paragraph (a) or (b) above will differ in any material respect from the
consolidated financial statements that would have been delivered pursuant to
such clauses had no such change in accounting principles and policies been made,
then, together with the first delivery of financial statements pursuant to
paragraph (a) and (b) above following such change, a schedule prepared by a
Financial Officer on behalf of Holdings or the Borrower, as the case may be,
reconciling such changes to what the financial statements would have been
without such changes;
(f) within 30 days after the beginning of each fiscal year, a budget in
form satisfactory to the Agents prepared by Holdings for each of the four fiscal
quarters of such fiscal year prepared in reasonable detail, of Holdings and its
Subsidiaries, accompanied by the statement of a Financial Officer of Holdings to
the effect that, to the best of his knowledge, the budget is a reasonable
estimate for the period covered thereby;
(g) promptly following the creation or acquisition of any Subsidiary, a
certificate from a Responsible Officer, identifying such new Subsidiary and the
ownership interest of the Borrower and the Subsidiaries therein;
(h) simultaneously with the delivery of any financial statements
pursuant to paragraph (a) or (b) above, a balance sheet and related statements
of operations, cash flows and stockholder's equity for each unconsolidated
Subsidiary for the applicable period;
(i) promptly after the receipt thereof by Holdings, the Borrower or any
of their respective Subsidiaries, a copy of all reports submitted in connection
with any material interim or special audit made by independent accountants of
the books of Holdings, the Borrower or any of their Subsidiaries; and
(j) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of Holdings, the Borrower
or any of their Subsidiaries, or compliance with the terms of any Loan Document,
or such consolidating financial statements, as in each case the Agents or any
Lender, acting through the Administrative Agent, may reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent written notice of the following promptly after any
Responsible Officer of the Borrower obtains actual knowledge thereof:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) proposed to be taken with respect
thereto;
(b) the filing or commencement of, or any written threat or notice of
intention of any person to file or commence, any action, suit or proceeding,
whether at law or in equity or by or before any Governmental Authority, against
Holdings, the Borrower or any of their Subsidiaries in respect of which there is
a reasonable possibility of an adverse determination and which, if adversely
determined, could reasonably be expected to result in a Material Adverse Effect;
and
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(c) any other development specific to Holdings, the Borrower or any of
their Subsidiaries that is not a matter of general public knowledge and that has
resulted in, or could reasonably be expected to result in, a Material Adverse
Effect.
SECTION 5.06. Employee Benefits. (a) Comply in all material respects
with the applicable provisions of ERISA and the provisions of the Code relating
to ERISA and any applicable similar non-U.S. law, except for such noncompliances
which could not reasonably be expected to result in a Material Adverse Effect,
and (b) furnish to the Administrative Agent (i) as soon as possible after, and
in any event within 30 days after any Responsible Officer of Holdings, the
Borrower or any ERISA Affiliate knows or has reason to know that, any Reportable
Event has occurred, a statement of a Financial Officer setting forth details as
to such Reportable Event and the action proposed to be taken with respect
thereto, together with a copy of the notice, if any, of such Reportable Event
given to the PBGC, (ii) promptly after any Responsible Officer learns of receipt
thereof, a copy of any notice that the Borrower or any ERISA Affiliate may
receive from the PBGC relating to the intention of the PBGC to terminate any
Plan or Plans (other than a Plan maintained by an ERISA Affiliate that is
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Code
Section 414) or to appoint a trustee to administer any such Plan, (iii) within
30 days after the due date for filing with the PBGC pursuant to Section 412(n)
of the Code a notice of failure to make a required installment or other payment
with respect to a Plan, a statement of a Financial Officer setting forth details
as to such failure and the action proposed to be taken with respect thereto,
together with a copy of any such notice given to the PBGC and (iv) promptly
after any Responsible Officer learns thereof and in any event within 30 days
after receipt thereof by Holdings, the Borrower or any ERISA Affiliate from the
sponsor of a Multiemployer Plan, a copy of each notice received by Holdings, the
Borrower or any ERISA Affiliate concerning (A) the imposition of Withdrawal
Liability or (B) a determination that a Multiemployer Plan is, or is expected to
be, terminated or in reorganization, in each case within the meaning of Title IV
of ERISA, provided that in the case of each of clauses (i) through (iv) above,
notice to the Administrative Agent shall only be required if such event or
condition, together with all other events or conditions referred to in clauses
(i) through (iv) above, could reasonably be expected to result in liability of
Holdings, the Borrower or any of their Subsidiaries in an aggregate amount
exceeding $15,000,000.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Maintain all financial records in accordance with GAAP and permit
any persons designated by the Agents or any Lender to visit and inspect the
financial records and the properties of Holdings, the Borrower or any of their
Subsidiaries at reasonable times, upon reasonable prior notice to Holdings or
the Borrower, and as often as reasonably requested and to make extracts from and
copies of such financial records, and permit any persons designated by the
Agents or any Lender upon reasonable prior notice to Holdings or the Borrower to
discuss the affairs, finances and condition of Holdings, the Borrower or any of
their Subsidiaries with the officers thereof and independent accountants
therefor (subject to reasonable requirements of confidentiality, including
requirements imposed by law or by contract).
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans and
request the issuance of Letters of Credit only for the purposes set forth in the
preamble to this Agreement.
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SECTION 5.09. Compliance with Environmental Laws. Comply, and make
reasonable efforts to cause all lessees and other persons occupying its
Properties to comply, with all Environmental Laws and Environmental Permits
applicable to its operations and Properties; obtain and renew all material
Environmental Permits necessary for its operations and Properties; and conduct
any Remedial Action in accordance with Environmental Laws, except, in each case
with respect to this Section 5.09, to the extent the failure to do so,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
SECTION 5.10. Preparation of Environmental Reports. If a default caused
by reason of a breach of Section 3.17 or 5.09 shall have occurred and be
continuing, at the request of the Required Lenders through the Administrative
Agent, provide to the Lenders within 90 days after such request, at the expense
of the Borrower, an environmental site assessment report for the Properties
which are the subject of such default prepared by an environmental consulting
firm acceptable to the Administrative Agent, indicating the presence or absence
of Hazardous Materials and the estimated cost of any Remedial Action required
under any applicable Environmental Law in connection with such Properties.
SECTION 5.11. Further Assurances; Additional Mortgages; Etc. (a)
Execute any and all further documents, financing statements, agreements and
instruments, and take all further action (including filing Uniform Commercial
Code and other financing statements, mortgages and deeds of trust) that may be
required under applicable law, or which the Collateral Agent may reasonably
request, in order to effectuate the transactions contemplated by the Loan
Documents and in order to grant, preserve, protect and perfect the validity and
first priority (subject to Liens permitted by Section 6.02) of the security
interests created or intended to be created by the Security Documents. In
addition, from time to time, Holdings, the Borrower and their Subsidiaries will,
at their cost and expense, on or promptly (but in any event within 10 Business
Days) following the date of acquisition by Holdings or any Subsidiary of
Holdings of any new Subsidiary (subject to the receipt of any required consents
from Governmental Authorities) promptly secure the Obligations by causing the
following to occur: (i) promptly upon creating or acquiring any additional
Subsidiary, the Equity Interests of such Subsidiary (excluding that portion of
the voting stock of any Foreign Subsidiary which would be in excess of 65% of
the total outstanding voting stock of such Foreign Subsidiary) will be pledged
pursuant to the Pledge Agreement or the Security Agreement, and (ii) such
Subsidiary will (unless such Subsidiary is a Foreign Subsidiary or less than 90%
of the Equity Interests of such Subsidiary is owned by Holdings and its
Subsidiaries) (A) become a party to the Security Agreement and the Pledge
Agreement (if such Subsidiary owns Equity Interests of any other Person) as
contemplated under each such agreement, (B) enter into the Subsidiary Guarantee
Agreement (or become a party thereto if the Subsidiary Guarantee Agreement shall
be in effect at such time) and (C) if such Subsidiary owns any real property
located in the United States having a value at the time of acquisition of such
Subsidiary in excess of $2,500,000, take the actions specified in paragraph (b)
below. All such security interests and Liens will be created under the Security
Documents and other instruments and documents in form and substance reasonably
satisfactory to the Collateral Agent, and Holdings, the Borrower and their
Subsidiaries shall deliver or cause to be delivered to the Administrative Agent
all such instruments and documents (including legal opinions and lien searches)
as the Required Lenders shall reasonably request to evidence compliance with
this Section 5.11. Holdings and the Borrower agree to provide, and to cause each
of their Subsidiaries to provide, such evidence as
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the Collateral Agent shall reasonably request as to the perfection and priority
status of each such security interest and Lien. Notwithstanding anything to the
contrary contained above, Holdings and its Subsidiaries will not be required to
(i) cause any Subsidiary acquired after the Closing Date to pledge any property
pursuant to this Section or to execute any Loan Document pursuant to this
Section if, and to the extent that, and for so long as, doing so would violate a
contractual obligation applicable to the respective Subsidiary which existed at
the time of the acquisition thereof and which was not created (or modified) in
anticipation of the acquisition of such Subsidiary or (ii) take any actions
pursuant to this Section 5.11 with respect to assets acquired after the Closing
Date, to the extent that, and for so long as, taking such actions would violate
a contractual obligation applicable to the assets so acquired which existed at
the time of the acquisition thereof and which was not created (or modified) in
anticipation of the acquisition of such assets.
(b) Holdings and the Borrower will, and will cause each of their
domestic Subsidiaries at least 90% of the Equity Interests in which are owned by
Holdings and its Subsidiaries to, grant to the Collateral Agent security
interests and mortgages (each an "Additional Mortgage") in such real property of
Holdings, Borrower or any such of their domestic Subsidiaries as are not covered
by the original Mortgages, to the extent acquired after the Closing Date and
having a value at the time of acquisition in excess of $2,500,000 (each such
real property, an "Additional Mortgaged Property"). All such Additional
Mortgages shall be granted pursuant to documentation substantially in the form
of the Mortgages delivered to the Collateral Agent on the Closing Date or in
such other form as is reasonably satisfactory to the Collateral Agent and shall
constitute valid and enforceable perfected Liens superior to and prior to the
rights of all third persons (except Liens under Section 6.02) and subject to no
other Liens except as are permitted by Section 6.02 at the time of perfection
thereof. The Additional Mortgages or instruments related thereto shall be duly
recorded or filed in such manner and in such places as is required by law to
establish, perfect, preserve and protect the Liens in favor of the Collateral
Agent required to be granted pursuant to the Additional Mortgages and all taxes,
fees and other charges payable in connection therewith shall be paid in full.
(c) Without limiting the foregoing, within 60 days after any request by
the Administrative Agent, the Collateral Agent or the Required Lenders, the
Borrower will execute any and all further documents, make any requisite filings
or registrations, and take any further actions, in each case as reasonably
requested, in order to grant, preserve, protect and perfect security interests
in any Pledge Agreement Collateral pledged pursuant to the Pledge Agreement
under applicable local law (including, with respect to Foreign Subsidiaries of
Holdings, any actions so requested under the law of the jurisdiction of
incorporation or organization of the respective such Subsidiary).
SECTION 5.12. Fiscal Year; Accounting. In the case of each of Holdings,
the Borrower and each of their Subsidiaries, cause its respective fiscal year to
end on December 31.
SECTION 5.13. Dividends. In the case of the Borrower, permit its
Subsidiaries to pay dividends and cause such dividends to be paid to the extent
required to pay the monetary Obligations, subject to restrictions permitted by
Section 6.09(c) and to prohibitions imposed by applicable requirements of law.
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SECTION 5.14. Interest Rate Protection Agreements. In the case of the
Borrower, as promptly as practicable and in any event within 60 days after the
Closing Date, enter into, and thereafter maintain in effect for a period of at
least three years following the Closing Date, one or more Interest Rate
Protection Agreements with any of the Lenders or other financial institutions
reasonably satisfactory to the Administrative Agent, the effect of which shall
be to limit at all times the interest payable in connection with Indebtedness
having an aggregate outstanding principal amount not less than an amount equal
to 33% of the aggregate principal amount of Term Borrowings to a maximum rate
and on terms and conditions reasonably acceptable, taking into account current
market conditions, to the Administrative Agent, and deliver evidence of the
execution and delivery thereof to the Administrative Agent, it being understood
and agreed that any Interest Rate Protection Agreements existing on the date
hereof shall be included in determining compliance with this Section 5.14 until
such existing Interest Rate Protection Agreements expire in accordance with the
terms thereof.
SECTION 5.15. No Other "Designated Senior Indebtedness". The Borrower
shall not designate, or permit the designation of, any Indebtedness (other than
under this Agreement or the other Loan Documents) as "Designated Senior
Indebtedness" for the purpose of the definition of the same or the subordination
provisions contained in either of the Senior Subordinated Note Indenture or the
New Senior Subordinated Note Indenture.
ARTICLE VI
NEGATIVE COVENANTS
Each of Holdings and the Borrower covenants and agrees with each Lender
that, so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan, all Fees
and all other expenses or amounts payable under any Loan Document have been paid
in full and all Letters of Credit have been canceled or have expired and all
amounts drawn thereunder have been reimbursed in full, unless the Required
Lenders shall otherwise consent in writing, neither Holdings nor the Borrower
will, and neither will cause or permit any of their Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist
any Indebtedness, except:
(a) Indebtedness existing on the date hereof and set forth in Schedule
6.01, but not any extensions, renewals or replacements of such Indebtedness
except (i) renewals and extensions expressly provided for in the agreements
evidencing any such Indebtedness as the same are in effect on the date of this
Agreement and (ii) refinancings and extensions of any such Indebtedness if the
average life to maturity thereof is greater than or equal to that of the
Indebtedness being refinanced or extended, provided that such extending, renewal
or replacement Indebtedness shall not be (A) Indebtedness of an obligor that was
not an obligor with respect to the Indebtedness being extended, renewed or
refinanced or (B) in a principal amount which exceeds the Indebtedness being
renewed, extended or refinanced (plus unpaid accrued interest and premium
thereon);
(b) Indebtedness created hereunder and under the other Loan Documents;
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(c) in the case of the Guarantors, the Guarantees under the Guarantee
Agreements;
(d) Indebtedness of the Borrower and its Subsidiaries pursuant to
Interest Rate Protection Agreements entered into in order to fix the effective
rate of interest on the Loans and other Indebtedness, provided that such
transactions shall be entered into to hedge actual interest rate exposures and
not for the purpose of speculation;
(e) Indebtedness owed to (including obligations in respect of letters
of credit for the benefit of) any person providing worker's compensation,
health, disability or other employee benefits or property, casualty or liability
insurance to the Borrower or any Subsidiary of the Borrower, pursuant to
reimbursement or indemnification obligations to such person;
(f) (i) Indebtedness of the Borrower or any Subsidiary of the Borrower
that is a Guarantor to any Subsidiary of the Borrower or to the Borrower, (ii)
Indebtedness of the Borrower or any Subsidiary of the Borrower that is not a
Guarantor to any Subsidiary of the Borrower that is not a Guarantor; and (iii)
Indebtedness of any Subsidiary to the Borrower or any Subsidiary of the Borrower
arising from an investment made pursuant to Section 6.04;
(g) intercompany Indebtedness resulting from investments made pursuant
to Sections 6.04(a), (h), (j), (k), (l) and/or (n);
(h) Indebtedness of the Borrower or its Subsidiaries in respect of
performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations
and trade-related letters of credit, in each case provided in the ordinary
course of business, including those incurred to secure health, safety and
environmental obligations in the ordinary course of business and any extension,
renewal or refinancing thereof to the extent that the amount of refinancing
Indebtedness is not greater than the amount of Indebtedness being refinanced;
(i) Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument drawn against insufficient
funds in the ordinary course of business, provided that such Indebtedness is
extinguished within two Business Days of its incurrence;
(j) Indebtedness of a Subsidiary of the Borrower acquired after the
date hereof and Indebtedness of a corporation merged or consolidated with or
into the Borrower or a Subsidiary of the Borrower after the date hereof and
Indebtedness assumed in connection with the acquisition of assets, which
Indebtedness in each case exists at the time of such acquisition, merger,
consolidation or conversion into a Subsidiary of the Borrower and is not created
in contemplation of such event and where such acquisition, merger or
consolidation is permitted by this Agreement, provided that the aggregate
principal amount of Indebtedness under this paragraph (j) (including the amount
of any Permitted Refinancing Indebtedness incurred pursuant to the last
parenthetical of this paragraph (j) of Section 6.01) shall not at any time
outstanding exceed $40,000,000 for the Borrower and all of its Subsidiaries (it
being understood and agreed that Permitted Refinancing Indebtedness incurred to
refinance Indebtedness otherwise permitted under this paragraph (j), or
refinancings thereof previously effected pursuant to this parenthetical, shall
be permitted);
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(k) Capital Lease Obligations, mortgage financings and purchase money
Indebtedness incurred by the Borrower or any Subsidiary of the Borrower prior to
or within 270 days after the acquisition or improvement of the respective asset
permitted under this Agreement in order to finance such acquisition or
improvement, and extensions, renewals and refinancings thereof, in an aggregate
principal amount outstanding at any time not in excess of $20,000,000, provided
that any such refinancing Indebtedness shall not be (i) Indebtedness of an
obligor that was not an obligor with respect to the Indebtedness being extended,
renewed or refinanced, (ii) in a principal amount which exceeds the Indebtedness
being renewed, extended or refinanced or (iii) additionally secured;
(l) Capital Lease Obligations incurred by the Borrower or any
Subsidiary of the Borrower in respect of any Sale and Lease-Back Transaction
that is permitted under Section 6.03;
(m) Indebtedness of the Borrower or any Subsidiary of the Borrower
supported by a Letter of Credit, in a principal amount not in excess of the
stated amount of such Letter of Credit;
(n) other Indebtedness of the Borrower and its domestic Subsidiaries,
provided that at no time shall the aggregate principal amount of all
Indebtedness outstanding pursuant to this clause (n) exceed $20,000,000;
(o) other Indebtedness of Foreign Subsidiaries of the Borrower in an
aggregate principal amount at any time outstanding not in excess of $50,000,000;
(p) Indebtedness of (x) Holdings pursuant to the Holdings Discount
Notes in an aggregate face (or principal) amount not to exceed $169,000,000 (it
being understood that the Holdings Discount Notes were originally issued with an
aggregate discount of approximately $68,400,000 and the accretion of the
aggregate principal amount to $169,000,000 shall not occur until January 2003)
less the aggregate amount of Holdings Discount Notes purchased and cancelled
pursuant to the Tender Offer and thereafter redeemed pursuant to the call
provisions in the Holdings Discount Note Documents or otherwise repaid or
redeemed, (y) the Borrower and the Co-Borrower pursuant to the Senior
Subordinated Notes in an aggregate principal amount not to exceed $225,000,000
less the aggregate amount of all repayments of the Senior Subordinated Notes
effected after the Original Closing Date and (z) the Borrower and the
Co-Borrower pursuant to the New Senior Subordinated Notes in an aggregate
principal amount not to exceed $100,000,000 less the aggregate amount of all
repayments of the New Senior Subordinated Notes effected after the Closing Date
(which Indebtedness described in clauses (y) and (z) may be guaranteed by
Holdings on a senior subordinated basis in accordance with the Senior
Subordinated Note Indenture and the New Senior Subordinated Note Indenture,
provided that in no event shall any other Subsidiary of Holdings or the Borrower
guarantee any of the Indebtedness described in this paragraph (p) without the
specific consent of the Required Lenders);
(q) Indebtedness arising from agreements of the Borrower or a
Subsidiary of the Borrower providing for indemnification, adjustment of purchase
price or similar obligations, in each case, incurred or assumed in connection
with the disposition of any business, assets or a
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Subsidiary, other than guarantees of Indebtedness incurred by any Person
acquiring all or any portion of such business, assets or a Subsidiary for the
purpose of financing such acquisition;
(r) obligations in respect of performance and surety bonds and
completion guarantees provided by the Borrower and its Subsidiaries in the
ordinary course of business;
(s) Indebtedness incurred by Borrower or any of its Subsidiaries
constituting reimbursement obligations with respect to letters of credit issued
in the ordinary course of business, including without limitation, letters of
credit in respect of workers' compensation claims or self insurance and other
similar statutory requirements, or other Indebtedness with respect to
reimbursement type obligations regarding workers' compensation claims, so long
as the aggregate principal amount of Indebtedness pursuant to this clause (s)
shall not exceed $15,000,000 at any time outstanding;
(t) Indebtedness evidenced by Other Hedging Agreements entered into
pursuant to Section 6.04(o);
(u) Indebtedness constituting unsecured guarantees or letters of credit
supporting the Indebtedness permitted to be outstanding pursuant to Section
6.01(o);
(v) Indebtedness of any Foreign Subsidiary that is a Subsidiary of the
Borrower to the Borrower or any domestic Subsidiary of the Borrower in an
aggregate principal amount outstanding at any time not in excess of $30,000,000;
provided that if the Administrative Agent or Required Lenders so request, any
such Indebtedness shall be evidenced by a promissory note which shall be in form
and substance satisfactory to the Administrative Agent and which shall be
pledged pursuant to the Pledge Agreement (so long as such pledge would not
result in adverse tax consequences to Holdings, the Borrower or the applicable
Subsidiary);
(w) Indebtedness of the Borrower and its domestic Subsidiaries pursuant
to the Xxxxxx County Bond Transactions incurred in accordance with the
definition thereof; and
(x) Indebtedness incurred by the Borrower, Co-Borrower and Holdings
pursuant to the Notes Refinancing, provided that any such Indebtedness shall (i)
constitute Permitted Refinancing Indebtedness and (ii) not have any scheduled
principal payments due prior to ____________, 2010(2); and
(y) all premium (if any), interest (including post-petition interest),
fees, expenses, indemnities, charges and additional or contingent interest on
obligations described in clauses (a) through (x) above.
SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien
on any property or assets (including stock or other securities of any person,
including any Subsidiary of
------------------------
(2) Insert date which is one year later than the first date appearing in the
definition of Term Loan Maturity Date.
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Holdings or the Borrower) at the time owned by it or on any income or revenues
or rights in respect of any thereof, or sell or transfer any account receivable
or any right in respect thereof, except:
(a) Liens on property or assets of the Borrower and its Subsidiaries
existing on the date hereof and set forth in Schedule 6.02, provided that
such Liens shall secure only those obligations which they secure on the
date hereof (and extensions, renewals and refinancings of such obligations
permitted by Section 6.01(a)) and shall not subsequently apply to any other
property or assets of Holdings, the Borrower or any of their Subsidiaries
(other than pursuant to existing after acquired property clauses);
(b) any Lien created under the Loan Documents or permitted in respect
of any Mortgaged Property by the terms of the applicable Mortgage;
(c) any Lien existing on any property or asset of the Borrower or any
Subsidiary of the Borrower prior to the acquisition thereof by the Borrower
or any Subsidiary of the Borrower, provided that (i) such Lien is not
created in contemplation of or in connection with such acquisition and (ii)
such Lien does not apply to any other property or asset of the Borrower or
any Subsidiary of the Borrower;
(d) any Lien on any property or asset of the Borrower or a Subsidiary
of the Borrower securing Indebtedness (or Permitted Refinancing
Indebtedness, in which case any such Lien shall be permitted subject to
compliance with clause (iv) of the definition of Permitted Refinancing
Indebtedness contained herein) permitted by Section 6.01(j), provided that
such Lien does not apply to any other property or assets of Holdings, the
Borrower or any of their Subsidiaries not securing such Indebtedness at the
date of the acquisition of such property or asset (other than after
acquired property subjected to a Lien securing Indebtedness and other
obligations incurred prior to such date and permitted hereunder which
contains a requirement for the pledging of after acquired property, it
being agreed that such after acquired property shall not include property
of Holdings, the Borrower and their Subsidiaries, other than any such
acquired Subsidiary of the Borrower, that would have been included but for
such acquisition);
(e) Liens for taxes, assessments or other governmental charges or
levies not yet delinquent, or which are for less than $2,000,000 in the
aggregate, or which are being contested in compliance with Section 5.03 or
for property taxes on property that Holdings, the Borrower or one of their
Subsidiaries has determined to abandon if the sole recourse for such tax,
assessment, charge, levy or claim is to such property;
(f) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business and securing
obligations that are not due and payable or that are being contested in
good faith by appropriate proceedings and in respect of which, if
applicable, Holdings, the Borrower or the relevant Subsidiary shall have
set aside on its books reserves in accordance with GAAP;
(g) pledges and deposits made in the ordinary course of business in
compliance with the Federal Employers Liability Act or any other workmen's
compensation,
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unemployment insurance and other social security laws or regulations and
deposits securing liability to insurance carriers under insurance or
self-insurance arrangements in respect of such obligations;
(h) deposits to secure the performance of bids, trade contracts (other
than for Indebtedness), leases (other than Capital Lease Obligations),
statutory obligations, surety and appeal bonds (the deposits for which
shall not exceed $20,000,000 at any time outstanding), performance bonds
and other obligations of a like nature incurred in the ordinary course of
business, including those incurred to secure health, safety and
environmental obligations in the ordinary course of business;
(i) zoning restrictions, easements, trackage rights, leases (other than
Capital Lease Obligations), licenses, special assessments, rights-of-way,
restrictions on use of real property and other similar encumbrances
incurred in the ordinary course of business which, in the aggregate, are
not substantial in amount and do not materially detract from the value of
the property subject thereto or interfere with the ordinary conduct of the
business of Holdings, the Borrower or any of their Subsidiaries;
(j) purchase money security interests in equipment or other property or
improvements thereto hereafter acquired (or, in the case of improvements,
constructed) by the Borrower or any Subsidiary of the Borrower (including
the interests of vendors and lessors under conditional sale and title
retention agreements), provided that (i) such security interests secure
Indebtedness permitted by Section 6.01(k), (ii) such security interests are
incurred, and the Indebtedness secured thereby is created, within 270 days
after such acquisition (or construction), (iii) the Indebtedness secured
thereby does not exceed 100% of the cost of such equipment or other
property or improvements at the time of such acquisition (or construction),
including transaction costs incurred by the Borrower or any Subsidiary of
the Borrower in connection with such acquisition (or construction), (iv)
such expenditures are permitted by this Agreement and (v) such security
interests do not apply to any other property or assets of the Borrower or
any Subsidiary of the Borrower (other than to accessions to such equipment
or other property or improvements and provided that individual financings
of equipment provided by a single lender may be cross-collateralized to
other financings of equipment provided solely by such lender);
(k) Liens arising out of capitalized or operating lease transactions
permitted under Section 6.03, so long as such Liens attach only to the
property sold and being leased in such transaction and any accessions
thereto or proceeds thereof and related property;
(l) Liens on the assets of a Foreign Subsidiary of the Borrower which
secure such Foreign Subsidiary's obligations under Indebtedness incurred
pursuant to Section 6.01(o);
(m) Liens securing judgments for the payment of money in an aggregate
amount not in excess of $20,000,000 (except to the extent covered by
insurance and the Administrative Agent shall be reasonably satisfied with
the credit of such insurer), unless
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such judgments shall remain undischarged for a period of more than 30
consecutive days during which execution shall not be effectively stayed;
(n) any leases or subleases in the ordinary course of business to other
persons of properties or assets owned or leased by the Borrower or a
Subsidiary of the Borrower;
(o) any Lien arising by operation of law pursuant to Section 107(1) of
the Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C. (Section) 9607(1), or pursuant to analogous state law, for costs
or damages which are not yet due (by virtue of a written demand for payment
by a Governmental Authority) or which demand is being contested in
compliance with the standard set forth in Section 5.03(a), or on property
that the Borrower or a Subsidiary of the Borrower has determined to abandon
if the sole recourse for such costs or damages is to such property,
provided that the liability of the Borrower and its Subsidiaries with
respect to the matter giving rise to all such Liens shall not, in the
reasonable estimate of the Borrower (in light of all attendant
circumstances, including the likelihood of contribution by third parties),
exceed $10,000,000;
(p) Liens that are contractual rights of setoff (i) relating to the
establishment of depository relations with banks not given in connection
with the issuance of Indebtedness or (ii) pertaining to pooled deposit
and/or sweep accounts of the Borrower and/or any Subsidiary of the Borrower
to permit satisfaction of overdraft or similar obligations incurred in the
ordinary course of business of the Borrower and the Subsidiaries of the
Borrower;
(q) Liens securing obligations in respect of trade-related letters of
credit permitted under Section 6.01 and covering the goods (or the
documents of title in respect of such goods) financed by such letters of
credit and the proceeds and products thereof;
(r) other Liens with respect to property or assets not constituting
collateral for the Obligations with an aggregate fair market value (valued
at the time of creation thereof) of not more than $20,000,000 at any time;
(s) Liens disclosed by the title insurance policies delivered pursuant
to Sections 4.02 and 5.11;
(t) construction liens arising in the ordinary course of business,
including liens for work performed for which payment has not been made,
securing obligations that are not due and payable or are being contested in
good faith by appropriate proceedings and in respect of which, if
applicable, Holdings, the Borrower or the relevant Subsidiary thereof shall
have set aside on its books reserves in accordance with GAAP;
(u) the replacement, extension or renewal of any Lien permitted by
clause (c), (d), (j) or (s) above; provided that such replacement,
extension or renewal Lien shall not cover any property other than the
property that was subject to such Lien prior to such replacement, extension
or renewal; and provided further, that the Indebtedness and other
obligations secured by such replacement, extension or renewal Lien are
permitted by this Agreement;
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(v) Liens upon specific items of inventory or other goods and proceeds
of the Borrower or any Subsidiary of the Borrower securing such Person's
obligations in respect of bankers' acceptances issued or created for the
account of such Person to facilitate the purchase, shipment or storage of
such inventory or other goods;
(w) Liens securing reimbursement obligations with respect to trade
letters of credit which encumber documents and the goods purchased under
such letters of credit and products and proceeds thereof; and
(x) Liens arising out of the Xxxxxx County Bond Transactions incurred
in accordance with the definition thereof.
SECTION 6.03. Sale and Lease-Back Transactions. Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred (a "Sale and Lease-Back
Transaction"), provided that (i) Sale and Lease-Back Transactions shall be
permitted so long as at no time will the aggregate Remaining Present Value of
all leases entered into pursuant to such Sale and Lease-Back Transactions (other
than leases entered into in connection with any Xxxxxx County Bond Transactions)
exceed $20,000,000 and (ii) any Sale and Lease-Back Transactions entered into in
connection with any Xxxxxx County Bond Transactions in accordance with the
definition thereof shall be permitted.
SECTION 6.04. Investments, Loans and Advances. Purchase, hold or
acquire any capital stock, evidences of indebtedness or other securities of,
make or permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other person, except:
(a) investments (i) existing on the Closing Date in the Equity
Interests of the Subsidiaries of Holdings; (ii) by Holdings in the Equity
Interests of the Borrower and Opco GP; (iii) by the Borrower or any
Subsidiary of the Borrower in any 90% Subsidiary of the Borrower that is a
Guarantor (so long as such Guarantor shall remain a 90% Subsidiary of the
Borrower after giving effect to such investment); (iv) by any 90%
Subsidiary of the Borrower in any Wholly Owned Subsidiary of the Borrower
that is a Guarantor; or (v) by any Subsidiary of the Borrower that is not a
Guarantor in any 90% Subsidiary of the Borrower that is not a Guarantor (so
long as such Subsidiary shall remain a 90% Subsidiary of the Borrower after
giving effect to such investment);
(b) Permitted Investments and investments that were Permitted
Investments when made;
(c) investments arising out of the receipt by the Borrower or any
Subsidiary of the Borrower of noncash consideration for the sale of assets
permitted under Section 6.05, provided that such consideration (if the
stated amount or value thereof is in excess of $2,000,000) is pledged upon
receipt pursuant to the Pledge Agreement to the extent required hereby and
thereby;
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(d) intercompany loans permitted to be incurred as Indebtedness under
Sections 6.01(a), (f), (n), (o) and (v);
(e) (i) loans and advances to employees of Holdings, the Borrower or
their Subsidiaries not to exceed $5,000,000 in the aggregate at any time
outstanding (calculated without regard to write-downs or write-offs
thereof) and (ii) advances of payroll payments and expenses to employees in
the ordinary course of business;
(f) (i) accounts receivable arising and trade credit granted in the
ordinary course of business and any securities received in satisfaction or
partial satisfaction thereof from financially troubled account debtors to
the extent reasonably necessary in order to prevent or limit loss and (ii)
prepayments and other credits to suppliers made in the ordinary course of
business;
(g) Interest Rate Protection Agreements permitted pursuant to Section
6.01(d);
(h) investments existing on the Closing Date and set forth on Schedule
6.04;
(i) investments resulting from pledges and deposits referred to in
Section 6.02(g) or (h);
(j) other investments by the Borrower and its Subsidiaries in an
aggregate amount (valued at the time of the making thereof, and without
giving effect to any write-downs or write-offs thereof) not to exceed
$30,000,000 (plus any returns of capital actually received by the
respective investor in respect of investments theretofore made by it
pursuant to this clause (j)); provided that at any time additional
investments may be made pursuant to this clause (j) at the election of the
Borrower, which additional investments pursuant to this proviso shall only
be permitted to the extent that the Borrower so elects (x) to apply an
amount not to exceed the Available Investment Basket Amount at such time to
the making of the respective investment pursuant to this clause (j) and/or
(y) to make additional investments pursuant to this clause (j) with the
proceeds of Designated Capital Contributions;
(k) investments by the Borrower and its Subsidiaries in Foreign
Subsidiaries of the Borrower in an aggregate amount (valued at the time of
the making thereof, and without giving effect to any write-downs or
write-offs thereof) not to exceed $50,000,000 (plus any returns of capital
actually received by the respective investor in respect of investments
theretofore made by it pursuant to this clause (k)); provided that at any
time additional investments may be made pursuant to this clause (k) at the
election of the Borrower, which additional investments pursuant to this
proviso shall only be permitted to the extent that the Borrower so elects
(x) to apply an amount not to exceed the Available Investment Basket Amount
at such time to the making of the respective investment pursuant to this
clause (k) and/or (y) to make additional investments pursuant to this
clause (k) with the proceeds of Designated Capital Contributions;
(l) investments constituting Permitted Business Acquisitions;
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(m) Holdings shall be permitted to contribute the proceeds of
Designated Capital Contributions and Special Capital Contributions to the
Borrower;
(n) investments by the Borrower and its Subsidiaries in Joint Ventures,
so long as the aggregate amount so invested pursuant to this clause (n)
(valued at the time of the making thereof, and without giving effect to any
write-downs or write-offs thereof) does not exceed $15,000,000 (plus any
returns of capital actually received by the respective investor in respect
of investments theretofore made by it pursuant to this clause (n));
provided that at any time additional investments may be made pursuant to
this clause (n) at the election of the Borrower, which additional
investments pursuant to this proviso shall only be permitted to the extent
that the Borrower so elects (x) to apply an amount not to exceed the
Available Investment Basket Amount at such time to the making of the
respective investment pursuant to this clause (n) and/or (y) to make
additional investments pursuant to this clause (n) with the proceeds of
Designated Capital Contributions.
(o) the Borrower and its Subsidiaries may enter into and perform its
obligations under Other Hedging Agreements entered into in the ordinary
course of business and so long as any such Other Hedging Agreement is not
speculative in nature;
(p) investments expressly permitted by Section 6.05;
(q) additional investments may be made from time to time to the extent
made with proceeds of Equity Interests (excluding proceeds of Designated
Capital Contributions and proceeds received as a result of the exercise of
Cure Rights pursuant to Section 7.02) of Holdings, which proceeds or
investments in turn are contributed to the Borrower; and
(r) investments made as part of the Xxxxxx County Bond Transactions in
accordance with the definition thereof.
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions. Merge into or consolidate with any other person, or permit any
other person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all or
any part of its assets (whether now owned or hereafter acquired), or any Equity
Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one
transaction or a series of transactions) all or any substantial part of the
assets of any other person, except that this Section shall not prohibit:
(a) the purchase and sale of inventory in the ordinary course of
business by the Borrower or any Subsidiary of the Borrower or the
acquisition of any other asset (excluding assets constituting investments
of the type subject to Section 6.04) in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto
no Event of Default or Default shall have occurred and be continuing (i)
the merger of any Subsidiary of the Borrower into the Borrower in a
transaction in which the Borrower is the surviving corporation and (ii) the
merger or consolidation of any Subsidiary of the Borrower into or
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with any other 90% Subsidiary of the Borrower in a transaction in which the
surviving entity is a 90% Subsidiary of the Borrower (which shall be a
domestic Subsidiary if the non-surviving person shall be a domestic
Subsidiary) and, (A) in the case of each of clauses (i) and (ii), no person
other than the Borrower or a 90% Subsidiary of the Borrower receives any
consideration and (B) in the case of clause (ii), if any non-surviving
person was a Guarantor the surviving person must be a Guarantor;
(c) Sale and Lease-Back Transactions permitted by Section 6.03;
(d) investments permitted by Section 6.04;
(e) subject to Section 6.07, sales, leases or transfers (i) from the
Borrower or any Subsidiary of the Borrower to the Borrower or to a domestic
90% Subsidiary of the Borrower, (ii) from any Foreign Subsidiary of the
Borrower to any Wholly Owned Subsidiary of the Borrower or the Borrower,
(iii) from any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of
the Borrower to any other Foreign Subsidiary that is a non-Wholly Owned
Subsidiary of the Borrower or (iv) from any Foreign Subsidiary that is a
Wholly Owned Subsidiary of the Borrower to any Foreign Subsidiary that is a
non-Wholly Owned Subsidiary of the Borrower, provided that the fair market
value of all property sold, leased or transferred pursuant to this clause
(iv) shall not exceed $20,000,000 in the aggregate;
(f) sales, leases or other dispositions of equipment or other property
of the Borrower or its Subsidiaries determined by the general partner or
senior management of the Borrower to be no longer useful or necessary in
the operation of the business of the Borrower or its Subsidiaries, provided
that the Net Proceeds thereof shall be applied in accordance with Section
2.12(c);
(g) sales, leases or other dispositions of inventory of the Borrower
and its Subsidiaries not made in the ordinary course of business determined
by the general partner or senior management of the Borrower to be no longer
useful or necessary in the operation of the business of the Borrower and
its Subsidiaries, provided that the Net Proceeds thereof shall be applied
in accordance with Section 2.12(c);
(h) the sale of any Equity Interests of any Subsidiary of the Borrower
in which less than 90% of the Equity Interests is owned by the Borrower and
its Subsidiaries;
(i) sales, leases or other dispositions of property having a net book
value not in excess of $20,000,000 in any fiscal year, provided that the
Net Proceeds thereof are applied in accordance with Section 2.12(c) or are
used within one year of the date of receipt thereof to purchase assets
useful in the business of the Borrower and its Subsidiaries, provided
further, that no sale may be made pursuant to this paragraph (i) of the
Equity Interests of any Subsidiary except in connection with the sale of
all its outstanding Equity Interests that are held by the Borrower and any
other Subsidiary and provided further, that to the extent that the net book
value of such property sold, leased or disposed in any fiscal year is less
than $20,000,000, the amount of such difference, but in no case more than
$10,000,000, may be carried forward and used for sales, leases, or
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dispositions of property in the immediately succeeding fiscal year (after
the full amount such sales, leases and other dispositions of property
otherwise permitted to be made under this paragraph (i) in such fiscal
year, without regard to the provisions of this proviso, have been made) (it
being understood that amounts once carried forward into such succeeding
fiscal year shall lapse and terminate at the end of such fiscal year);
(j) the Transaction;
(k) the sale of defaulted receivables in the ordinary course of
business and not as part of an accounts receivables financing transaction;
and
(l) sales, leases or other dispositions of the Subject Property
pursuant to the Xxxxxx County Bond Transactions consummated in accordance
with the definition thereof.
Notwithstanding anything to the contrary contained above, Holdings must at all
times own, directly or indirectly, 100% of the Equity Interests of Opco GP
(except to the extent Opco GP is liquidated or consolidated with Holdings) and
the Borrower.
SECTION 6.06. Dividends and Distributions. Declare or pay, directly or
indirectly, any dividend or make any other distribution (by reduction of capital
or otherwise), whether in cash, property, securities or a combination thereof,
with respect to any of its Equity Interests (other than dividends and
distributions on the common stock of Holdings payable solely by the issuance of
additional shares of common stock of Holdings) or directly or indirectly redeem,
purchase, retire or otherwise acquire for value (or permit any Subsidiary to
purchase or acquire) any shares of any class of its Equity Interests or set
aside any amount for any such purpose; provided, however, that:
(a) any Subsidiary of the Borrower may declare and pay dividends to,
repurchase its Equity Interests from or make other distributions to the
Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the case
of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary of the
Borrower and to each other owner of Equity Interests of such Subsidiary on
a pro rata basis (or more favorable basis from the perspective of the
Borrower or such Subsidiary) based on their relative ownership interests);
(b) Holdings and the Borrower may effect the Transaction and
transactions related thereto;
(c) the Borrower may declare and pay dividends or make other
distributions to Holdings in respect of overhead, tax liabilities (other
than income tax liabilities for which the Borrower is permitted to make
distributions pursuant to clause (e) of this Section 6.06) of Holdings,
legal, accounting and other professional fees and expenses and other fees
and expenses in connection with the maintenance of its existence and its
ownership of the Borrower and Opco GP and in order to permit Holdings to
make payments permitted by Sections 6.07(b) and (c);
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(d) Holdings and the Borrower may purchase or redeem (and the Borrower
may declare and pay dividends or make other distributions to Holdings the
proceeds of which are to be used by Holdings to so purchase or redeem),
directly or indirectly, Equity Interests of Holdings (including related
stock appreciation rights or similar securities) held by then present or
former officers or employees of Holdings, the Borrower or any of their
Subsidiaries or by any Plan upon such person's death, disability,
retirement or termination of employment or under the terms of any such Plan
or any other agreement under which such shares of stock or related rights
were issued, provided that the aggregate amount of such purchases or
redemptions under this paragraph (d) shall not exceed in any calendar year
$5,000,000 (plus the amount of net proceeds received by Holdings or the
Borrower during such calendar year from Employee Equity Sales and the
amount of net proceeds of any key-man life insurance received during such
calendar year) which, if not used in any year may be carried forward to any
subsequent calendar year; provided, however, that the aggregate amount of
such purchases or redemptions that may be made pursuant to this paragraph
(d) shall not exceed $15,000,000 (plus the amount of net proceeds received
by Holdings or the Borrower after the date of this Agreement from Employee
Equity Sales);
(e) for so long as the Borrower is a partnership or substantially
similar pass-through entity for federal income tax purposes, cash
distributions may be made by any Subsidiary of Holdings, including the
Borrower, to Holdings from time to time in amounts not to exceed the
Permitted Tax Amount Distributions, so long as the payments are made at the
times permitted by the definition of Permitted Tax Amount Distributions
contained herein;
(f) so long as the Loans have not been accelerated pursuant to Article
VII, no Default under Section 7.01(b), (c), (h) or (i) then exists and no
Event of Default then exists or would result therefrom, commencing on
January 15, 2003, the Borrower may pay cash dividends to Holdings at the
times and in the amounts necessary to enable Holdings to make the cash
interest payments due on, or redeem, Holdings Discount Notes (the extent
any remain outstanding after the Tender Offer) pursuant to the call
provisions of the Holdings Discount Note Documents, so long as Holdings
immediately thereafter uses such dividends to make such cash interest or
redemption payments; and
(g) non-cash repurchases of Equity Interests deemed to occur upon
exercise of stock options if such Equity Interests represent a portion of
the exercise price of such options.
SECTION 6.07. Transactions with Affiliates. (a) Sell or transfer any
property or assets to, or purchase or acquire any property or assets from, or
otherwise engage in any other transaction with, any of its Affiliates or any
known direct or indirect holder of 10% or more of any class of capital stock of
Holdings, unless such transaction forms a part of the Transaction or is (i)
otherwise permitted (or required) under this Agreement and (ii) upon terms no
less favorable to Holdings, the Borrower or such Subsidiary, as the case may be,
than it would obtain in a comparable arm's-length transaction with a person
which was not an Affiliate, provided that the foregoing restriction shall not
apply to (A) the payment to the Fund or any of its Affiliates or the Fund
Affiliates of the monitoring and management fees referred to in paragraph (c)
below or
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fees payable on the Closing Date or (B) the indemnification of directors of
Holdings, the Borrower and their Subsidiaries in accordance with customary
practice.
(b) The foregoing paragraph (a) shall not prohibit, to the extent
otherwise permitted under this Agreement, (i) any issuance of securities, or
other payments, awards or grants in cash, securities or otherwise pursuant to,
or the funding of, employment arrangements, stock options and stock ownership
plans approved by the board of directors of Holdings (or Old Holdings, if prior
to the Closing Date), (ii) loans or advances to employees of Holdings, the
Borrower or any of their Subsidiaries in accordance with Section 6.04(e), (iii)
transactions among the Borrower and Wholly Owned Subsidiaries and transactions
among Wholly Owned Subsidiaries otherwise permitted by this Agreement, (iv) the
payment of fees and indemnities to directors, officers and employees of Holdings
and its Subsidiaries in the ordinary course of business, (v) transactions
pursuant to permitted agreements in existence on the Closing Date and set forth
on Schedule 6.07, (vi) any employment agreements entered into by any of the
Borrower or any of its Subsidiaries in the ordinary course of business, (vii)
dividends and repurchases permitted under Section 6.06, (viii) any purchase by
the Investors of Equity Interests of Holdings or any purchase by Holdings of
Equity Interests of the Borrower or any contribution by Holdings to the equity
capital of the Borrower, provided that any Equity Interests of the Borrower
purchased by Holdings shall be pledged to the Collateral Agent on behalf of the
Lenders pursuant to the Pledge Agreement, (ix) payments by Holdings, the
Borrower or any of their Subsidiaries to the Fund and Fund Affiliates made for
any financial advisory, financing, underwriting or placement services or in
respect of other investment banking activities, including, without limitation,
in connection with acquisitions or divestitures which payments are approved by
the majority of the disinterested members of the board of directors of Holdings,
in good faith, (x) transactions in which the Borrower delivers to the
Administrative Agent a letter from an independent financial advisor acceptable
to the Administrative Agent stating that such transaction is fair to the
Borrower or applicable Subsidiary from a financial point of view, (xi) any
agreement as in effect as of the Closing Date or any amendment thereto (so long
as any such amendment is not disadvantageous to the Lenders in any material
respect) or any transaction contemplated thereby and (xii) the existence of, or
the performance by Holdings, the Borrower or any of their Subsidiaries of their
obligations in connection with, the Transaction or any agreement relating
thereto (including any registration rights agreement or purchase agreement
related thereto) to which it is a party as of the Closing Date; provided,
however, that the existence of, or the performance by Holdings, the Borrower or
any Subsidiary of obligations under any future amendment to any such existing
agreement shall only be permitted by this clause (xii) to the extent that the
terms of any such amendment or new agreement are not otherwise disadvantageous
to the Lenders in any material respect.
(c) Make any payment of or on account of monitoring or management or
similar fees payable to the Fund or the Fund Affiliates in an aggregate amount
in any fiscal year in excess of $1,000,000 (plus reasonable expenses in
connection therewith).
SECTION 6.08. Business of Holdings, the Borrower and their
Subsidiaries. Engage at any time in any business or business activity other than
(a) in the case of the Borrower and its Subsidiaries other than the Co-Borrower,
any business or business activity conducted by it on the date hereof and any
business or business activities incidental or related thereto or the
manufacture, marketing or sale of containers or any business or activity that is
reasonably similar
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thereto or a reasonable extension, development or expansion thereof or ancillary
thereto, including the consummation of the Transaction, (b) in the case of
Holdings, (i) the ownership of the Equity Interests in the Borrower and Opco GP,
together with activities directly related thereto, (ii) performance of its
obligations under and in connection with the Loan Documents and under the
Holdings Discount Notes Documents, the Senior Subordinated Notes Documents and
the New Senior Subordinated Note Documents, the Stockholders Agreement executed
in connection with the Recapitalization Agreement and other agreements
contemplated thereby, (iii) actions incidental to the consummation of the
Transaction, (iv) actions required by law to maintain its existence and (v) the
purchase, cancellation and redemption of the Holdings Discount Notes in
accordance with this Agreement, (c) in the case of Opco GP, (i) the ownership of
the general partnership interest in the Borrower, together with activities
directly related thereto, (ii) performance of its obligations under and in
connection with the Loan Documents, the Stockholders Agreement executed in
connection with the Recapitalization Agreement and other agreements contemplated
thereby, (iii) actions incidental to the consummation of the Transaction and
(iv) actions required by law to maintain its existence and (d) in the case of
the Co-Borrower, (i) performance of its obligations under and in connection with
the Loan Documents, the Senior Subordinated Notes, the New Senior Subordinated
Note Documents, the Stockholders Agreement executed in connection with the
Recapitalization Agreement and other agreements contemplated thereby, (ii)
actions incidental to the consummation of the Transaction and (iii) actions
required by law to maintain its status as a corporation.
SECTION 6.09. Limitation on Modifications of Indebtedness;
Modifications of Certificate of Incorporation, By-Laws and Certain Other
Agreements; Etc. (a) Amend or modify in any manner materially adverse to the
Lenders, or grant any waiver or release under or terminate in any manner (if
such action shall be adverse to the Lenders), the certificate of incorporation
or By-laws or partnership agreement or limited liability agreement in any
material respect of Holdings, the Borrower or any of their Subsidiaries.
(b) (i) Make (or give any notice in respect thereof) any voluntary or
optional payment or prepayment on or redemption or acquisition for value of
(including, without limitation, by way of depositing with the trustee with
respect thereto money or securities before due for the purpose of paying when
due), or any prepayment or redemption as a result of any asset sale, change of
control or similar event of, any Holdings Discount Notes (other than pursuant to
the Tender Offer), the Senior Subordinated Notes or the New Senior Subordinated
Notes or (ii) amend or modify, or permit the amendment of modification of, any
Holdings Discount Notes (other than pursuant to the Tender Offer), the Senior
Subordinated Notes, the New Senior Subordinated Notes or any agreement
(including, without limitation any Holdings Discount Notes Document, Senior
Subordinated Notes Document or New Senior Subordinated Note Document) relating
thereto, other than amendments or modifications which do not in any way
adversely affect, in any material respect, the interest of the Lenders and which
do not affect the subordination provisions thereof. Notwithstanding anything to
the contrary contained in this Section 6.09(b), so long as the Loans have not
been accelerated pursuant to Article VII, no Default under Section 7.01(b), (c),
(h) or (i) then exists and no Event of Default then exists or would result
therefrom, Holdings shall be permitted to redeem any Holdings Discount Notes
that remain outstanding after the consummation of the Tender Offer pursuant to
the call provisions in the Holdings Discount Note Documents or otherwise
purchase and cancel the Holdings Discount Notes, provided that (i) all such
redemptions or purchases and cancellations of Holdings
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Discount Notes shall occur on or prior to March 31, 2003 and (ii) to the extent
$175,600,000 exceeds the amount of cash actually used by Holdings to purchase
the Holdings Discount Notes pursuant to the Tender Offer (including any premium
and fees), an amount equal to such excess (the "Excess Funding Amount") shall be
used for the purpose of (x) redeeming or purchasing and canceling Holdings
Discount Notes as described in clause (i) above and/or (y) prepaying Term Loans
on March 31, 2003, as provided in Section 2.12(c).
(c) Permit any Subsidiary of Holdings to enter into any agreement or
instrument which by its terms restricts the payment of dividends or
distributions or the making of cash advances by such Subsidiary to the Borrower
or any Subsidiary that is a direct or indirect parent of such Subsidiary other
than those arising under any Loan Document and other than those which would not
reasonably be expected to have a Material Adverse Effect.
SECTION 6.10. Capital Expenditures. Permit Holdings or its Subsidiaries
to make any Capital Expenditure, except that:
(a) During any fiscal year ending closest to December 31, 2002 or
thereafter, the Borrower and its Subsidiaries may make Capital Expenditures so
long as the aggregate amount thereof does not exceed $175,000,000 for any such
fiscal year (provided that the amounts for any such fiscal year shall be reduced
by any amounts used to make Permitted Business Acquisitions in such fiscal year
pursuant to clause (x) of the proviso to the definition of Permitted Business
Acquisition Amount).
(b) Notwithstanding anything to the contrary contained in clause (a)
above, to the extent that the aggregate amount of Capital Expenditures made by
the Borrower and its Subsidiaries in any fiscal year of the Borrower ending
closest to December 31, 2002 or thereafter pursuant to Section 6.10(a) is less
than the amount set forth for such fiscal year pursuant to preceding clause (a),
the amount of such difference may be carried forward and used to make Capital
Expenditures in succeeding fiscal years, provided that in any fiscal year, the
amount permitted to be applied to make Capital Expenditures pursuant to this
clause (b) shall in no event exceed an amount equal to 50% of the amount set
forth in Section 6.10(a) for such fiscal year.
(c) In addition to the Capital Expenditures permitted pursuant to
preceding clauses (a) and (b), the Borrower and its Subsidiaries may make
additional Capital Expenditures as follows: (i) Capital Expenditures made with
the proceeds of Designated Capital Contributions, (ii) Capital Expenditures may
be made at any time in an amount not to exceed the Cumulative Retained Excess
Cash Flow Amount at such time and (iii) Capital Expenditures may be made at any
time in an amount not to exceed the Cumulative Retained Net Proceeds Amount at
such time.
SECTION 6.11. Interest Coverage Ratio. Permit the ratio (the "Interest
Coverage Ratio") on the last day of any fiscal quarter occurring in any period
set forth below, for the four quarter period ended as of such day of (a) EBITDA
of the Borrower and its Subsidiaries to (b) Cash Interest Expense to be less
than the ratio set forth below for such period, provided that to the extent any
Asset Disposition or any Permitted Business Acquisition (or any similar
transaction or transactions which require a waiver or a consent of the Required
Lenders pursuant
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to Section 6.05) has occurred during the relevant Test Period, the Interest
Coverage Ratio shall be determined for the respective Test Period on a Pro Forma
Basis for such occurrences:
Period: Ratio:
Closing Date to and including September 30, 2003 2.10:1.0
October 1, 2003 to and including September 30, 2004 2.25:1.0
October 1, 2004 to and including September 30, 2005 2.50:1.0
October 1, 2005 and thereafter 2.70:1.0
SECTION 6.12. Net Leverage Ratio. Permit the Net Leverage Ratio on the
last day of any fiscal quarter ending in any period set forth below, to be in
excess of the ratio set forth below for such period:
Period: Ratio:
Closing Date to and including June 30, 2003 5.95:1.0
July 1, 2003 to and including September 30, 2003 5.75:1.0
October 1, 2003 to and including June 30, 2004 5.50:1.0
July 1, 2004 to and including September 30, 2004 5.25:1.0
October 1, 2004 to and including June 30, 2005 5.00:1.0
July 1, 2004 to and including September 30, 2005 4.75:1.0
October 1, 2005 to and including June 30, 2006 4.50:1.0
July 1, 2006 to and including December 31, 2006 4.25:1.0
January 1, 2007 and thereafter 4.00:1.0
SECTION 6.13. Changes To Legal Names; Organizational Identification
Numbers, Jurisdiction or Type of Organization. No Loan Party shall change, or
permit any change to, its legal name until (i) it shall have given to the
Administrative Agent and the Collateral Agent not less than 10 days prior
written notice of its intention so to do, clearly describing such new name and
providing other information in connection therewith as the Administrative Agent
or Collateral Agent may reasonably request and (ii) with respect to such new
name, it shall have taken all action reasonably requested by the Administrative
Agent or Collateral Agent to maintain the security interests of the
Administrative Agent or Collateral Agent in the Collateral intended to be
granted pursuant to the Security Documents at all times fully perfected and in
full force and effect. In addition, to the extent that any Loan Party does
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not have an organizational identification number on the date hereof and later
obtains one, or if there is any change in the organizational identification
number of any Loan Party, the Borrower or such Loan Party shall promptly notify
the Administrative Agent and the Collateral Agent of such new or changed
organizational identification number and shall take all actions reasonably
satisfactory to the Administrative Agent and the Collateral Agent to the extent
necessary to maintain the security interests of the Administrative Agent or
Collateral Agent in the Collateral intended to be granted pursuant to the
Security Documents fully perfected and in full force and effect. Furthermore, no
Loan Party shall change its jurisdiction of organization or its type of
organization until (i) it shall have given to the Administrative Agent and the
Collateral Agent not less than 10 days prior written notice of its intention so
to do, clearly describing such new jurisdiction of organization and/or type of
organization and providing such other information in connection therewith as the
Administrative Agent or Collateral Agent may reasonably request and (ii) with
respect to such new jurisdiction and/or type of organization, it shall have
taken all actions reasonably requested by the Administrative Agent or the
Collateral Agent to maintain the security interests of the Administrative Agent
or Collateral Agent in the Collateral intended to be granted pursuant to the
Security Documents at all times fully perfected and in full force and effect. If
at any time Schedule 3.25 hereto is not true and correct (as of the date in
question, which may be after the Closing Date), whether because of changes
thereto or as a result of the creation or acquisition of additional Loan
Parties, the Borrower shall promptly furnish to the Administrative Agent and the
Collateral Agent a true and correct updated Schedule 3.25, which shall contain
the updated information required therein with respect to each Loan Party as of
the date of any change thereto.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. Events of Default. In case of the happening of any of the
following events ("Events of Default"):
(a) any representation or warranty made or deemed made by Holdings, the
Borrower or any Loan Party in any Loan Document, or any representation,
warranty, statement or information contained in any report, certificate,
financial statement or other instrument furnished in connection with or
pursuant to any Loan Document, shall prove to have been false or misleading
in any material respect when so made, deemed made or furnished by Holdings,
the Borrower or any other Loan Party;
(b) default shall be made in the payment of any principal of any Loan
or the reimbursement with respect to any L/C Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan or
on any L/C Disbursement or in the payment of any Fee or any other amount
(other than an amount referred to in (b) above) due under any Loan
Document, when and as the same shall become due and payable, and such
default shall continue unremedied for a period of five Business Days;
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(d) default shall be made in the due observance or performance by
Holdings or any of its Subsidiaries of any covenant, condition or agreement
contained in Section 5.01(a) (with respect to the Borrower), 5.05(a), 5.08,
5.12 or 5.15 or in Article VI;
(e) default shall be made in the due observance or performance by
Holdings, the Borrower or any of their Subsidiaries of any covenant,
condition or agreement contained in any Loan Document (other than those
specified in (b), (c) or (d) above) and such default shall continue
unremedied for a period of 30 days after notice thereof from the
Administrative Agent or the Required Lenders to the Borrower;
(f) Holdings or the Borrower shall fail to observe or perform any term,
covenant, condition or agreement contained in any agreement or instrument
evidencing or governing any Indebtedness (other than any Indebtedness under
any Loan Document) having an aggregate principal or notional amount in
excess of $15,000,000 if the effect of any such failure is to cause, or to
permit the holder or holders of such Indebtedness or a trustee on its or
their behalf to cause, such Indebtedness to become due prior to its stated
maturity, or Holdings or the Borrower shall fail to pay any principal in
respect of any such Indebtedness at the stated maturity thereof;
(g) there shall have occurred a Change in Control;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of Holdings, the Borrower or any of their Subsidiaries,
or of a substantial part of the property or assets of Holdings, the
Borrower or any of their Subsidiaries, under Title 11 of the United States
Code, as now constituted or hereafter amended, or any other federal, state
or foreign bankruptcy, insolvency, receivership or similar law, (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for Holdings, the Borrower or any of their Subsidiaries or
for a substantial part of the property or assets of Holdings, the Borrower
or any of their Subsidiaries or (iii) the winding-up or liquidation of
Holdings, the Borrower or any of their Subsidiaries; and such proceeding or
petition shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;
(i) Holdings, the Borrower or any of their Subsidiaries shall (i)
voluntarily commence any proceeding or file any petition seeking relief
under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other federal, state or foreign bankruptcy, insolvency,
receivership or similar law, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or the filing of
any petition described in paragraph (i) above, (iii) apply for or consent
to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings, the Borrower or any of their
Subsidiaries or for a substantial part of the property or assets of
Holdings, the Borrower or any of their Subsidiaries, (iv) file an answer
admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of
creditors, (vi) become unable, admit in writing its
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inability or fail generally to pay its debts as they become due or (vii)
take any action for the purpose of effecting any of the foregoing;
(j) one or more judgments for the payment of money in an aggregate
amount in excess of $15,000,000 (except to the extent covered by insurance
where the Administrative Agent is reasonably satisfied with the credit of
such insurer) shall be rendered against Holdings, the Borrower, any of
their Subsidiaries or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to levy upon assets or properties of Holdings, the
Borrower or any of their Subsidiaries to enforce any such judgment;
(k) (i) a Reportable Event or Reportable Events, or a failure to make a
required installment or other payment (within the meaning of Section
412(n)(1) of the Code), shall have occurred with respect to any Plan or
Plans, (ii) a trustee shall be appointed by a United States district court
to administer any Plan or Plans, (iii) the PBGC shall institute proceedings
(including giving notice of intent thereof) to terminate any Plan or Plans,
(iv) the Borrower or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability
to such Multiemployer Plan and the Borrower or such ERISA Affiliate does
not have reasonable grounds for contesting such Withdrawal Liability or is
not contesting such Withdrawal Liability in a timely and appropriate
manner, (v) the Borrower or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, (vi) the Borrower or any ERISA Affiliate shall engage in any
"prohibited transaction" (as defined in Section 406 of ERISA or Section
4975 of the Code) involving any Plan and (vii) any other similar event or
condition shall occur or exist with respect to a Plan; and in each case in
clauses (i) through (vii) above, such event or condition, together with all
other such events or conditions, if any, could reasonably be expected to
have a Material Adverse Effect; or
(l) (i) any Loan Document shall for any reason be asserted by Holdings,
the Borrower or any of their Subsidiaries not to be a legal, valid and
binding obligation of any party thereto, (ii) any security interest
purported to be created by any Security Document and to extend to assets
that are not immaterial to Holdings, the Borrower and their subsidiaries on
a consolidated basis shall cease to be, or shall be asserted by the
Borrower or any other Loan Party not to be, a valid and perfected security
interest (having the priority required by this Agreement or the relevant
Security Document) in the securities, assets or properties covered thereby,
except to the extent that any such loss of perfection or priority results
from the failure of the Collateral Agent to maintain possession of
certificates actually delivered to it representing securities pledged under
the Pledge Agreement or to file UCC continuation statements and except to
the extent that such loss is covered by a lender's title insurance policy
and the Administrative Agent shall be reasonably satisfied with the credit
of such insurer or (iii) the Obligations of Holdings or the Borrower or the
guarantee by Holdings thereof pursuant to the Parent Guarantee Agreement
shall cease to constitute senior indebtedness under the subordination
provisions of the Senior Subordinated Notes or the New Senior
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Subordinated Notes, or, in either case, such subordination provisions shall
be invalidated or otherwise cease to be legal, valid and binding
obligations of the parties thereto, enforceable in accordance with their
terms;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (h) or (i) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the
Required Lenders, shall, by notice to the Borrower, take any or all of the
following actions, at the same or different times: (i) terminate forthwith the
Commitments, (ii) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of the Borrower accrued hereunder and
under any other Loan Document, shall become forthwith due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrower, anything contained herein or in any
other Loan Document to the contrary notwithstanding and (iii) demand cash
collateral pursuant to Section 2.20(g); and in any event with respect to the
Borrower described in paragraph (h) or (i) above, the Commitments shall
automatically terminate, the principal of the Loans then outstanding, together
with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrower accrued hereunder and under any other Loan Document,
shall automatically become due and payable and the Administrative Agent shall be
deemed to have made a demand for cash collateral to the full extent permitted
under Section 2.20(g), without presentment, demand, protest or any other notice
of any kind, all of which are hereby expressly waived by the Borrower, anything
contained herein or in any other Loan Document to the contrary notwithstanding.
SECTION 7.02. Borrower's Right to Cure. (a) Financial Performance
Covenants. Notwithstanding anything to the contrary contained in Section 7.01,
in the event that Holdings and the Borrower fail to comply with the requirements
of any Financial Performance Covenant, until the expiration of the 10th day
subsequent to the date the certificate calculating such Financial Performance
Covenant is required to be delivered pursuant to Section 5.04(c), Holdings shall
have the right to issue Permitted Cure Securities for cash or otherwise receive
cash contributions to the capital of Holdings, and, in each case, to contribute
any such cash to the capital of Borrower (collectively, the "Cure Right"), and
upon the receipt by Borrower of such cash (the "Cure Amount") pursuant to the
exercise by Holdings of such Cure Right such Financial Performance Covenant
shall be recalculated giving effect to the following pro forma adjustments:
(i) EBITDA shall be increased, solely for the purpose of measuring the
Financial Performance Covenants and not for any other purpose under this
Agreement, by an amount equal to the Cure Amount; and
(ii) if, after giving effect to the foregoing recalculations, Holdings
and Borrower shall then be in compliance with the requirements of all
Financial Performance Covenants, Holdings and Borrower shall be deemed to
have satisfied the requirements of the Financial Performance Covenants as
of the relevant date of determination with the same effect as though there
had been no failure to comply therewith at such date, and the applicable
breach or default of the Financial Performance Covenants which had occurred
shall be deemed cured for all purposes of the Agreement.
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(b) Limitation on Exercise of Cure Right. Notwithstanding anything
herein to the contrary, (a) in no event shall Holdings be entitled to exercise
the Cure Right in more than three consecutive fiscal quarters, (b) in any ten
fiscal quarter period, there must be a period of at least four consecutive
fiscal quarters during which Holdings has not exercised its Cure Right and (c)
each Cure Amount shall not exceed the amount required to cure the applicable
failure to comply with a Financial Performance Covenant.
ARTICLE VIII
THE AGENTS
SECTION 8.01. Appointment. (a) In order to expedite the transactions
contemplated by this Agreement, Deutsche Bank Trust Company Americas is hereby
appointed to act as Administrative Agent and Collateral Agent and a Fronting
Bank, Deutsche Bank Securities Inc. is hereby appointed to act as Sole Lead
Arranger and Xxxxxxx Xxxxx Xxxxxx Inc. is hereby appointed to act as Syndication
Agent. Each of the Lenders and each assignee of any such Lender hereby
irrevocably authorizes the Agents to take such actions on behalf of such Lender
or assignee or any Fronting Bank and to exercise such powers as are specifically
delegated to the Agents by the terms and provisions hereof and of the other Loan
Documents, together with such actions and powers as are reasonably incidental
thereto. The Administrative Agent is hereby expressly authorized by the Lenders
and each Fronting Bank, without hereby limiting any implied authority, (a) to
receive on behalf of the Lenders and such Fronting Bank all payments of
principal of and interest on the Loans, all payments in respect of L/C
Disbursements and all other amounts due to the Lenders and such Fronting Bank
hereunder, and promptly to distribute to each Lender or Fronting Bank its proper
share of each payment so received; (b) to give notice on behalf of each of the
Lenders to the Borrower of any Event of Default specified in this Agreement of
which the Administrative Agent has actual knowledge acquired in connection with
its agency hereunder; and (c) to distribute to each Lender copies of all
notices, financial statements and other materials delivered by the Borrower
pursuant to this Agreement as received by the Administrative Agent. Without
limiting the generality of the foregoing, the Agents are hereby expressly
authorized to execute any and all documents (including releases) with respect to
the Collateral and the rights of the Secured Parties with respect thereto, as
contemplated by and in accordance with the provisions of this Agreement and the
Security Documents. In the event that any party other than the Lenders and the
Agents shall participate in all or any portion of the Collateral pursuant to the
Security Documents, all rights and remedies in respect of such Collateral shall
be controlled by the Collateral Agent.
(b) Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or willful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower or any other Loan Party of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Agents shall not be responsible
to the Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or any other Loan Documents or other instruments
or agreements. The Agents shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by
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the Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. Each Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper person or
persons. Neither the Agents nor any of their respective directors, officers,
employees or agents shall have any responsibility to the Borrower or any other
Loan Party on account of the failure of or delay in performance or breach by any
Lender or any Fronting Bank of any of its obligations hereunder or to any Lender
or any Fronting Bank on account of the failure of or delay in performance or
breach by any other Lender or any Fronting Bank or the Borrower or any other
Loan Party of any of their respective obligations hereunder or under any other
Loan Document or in connection herewith or therewith. Each of the Agents may
execute any and all duties hereunder by or through agents or employees and shall
be entitled to rely upon the advice of legal counsel selected by it with respect
to all matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
SECTION 8.02. Nature of Duties. The Lenders hereby acknowledge that
neither Agent shall be under any duty to take any discretionary action permitted
to be taken by it pursuant to the provisions of this Agreement unless it shall
be requested in writing to do so by the Required Lenders. The Lenders further
acknowledge and agree that so long as an Agent shall make any determination to
be made by it hereunder or under any other Loan Document in good faith, such
Agent shall have no liability in respect of such determination to any person.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into the Loan Documents or otherwise exist against the
Administrative Agent. Each Lender recognizes and agrees that neither the Sole
Lead Arranger nor the Syndication Agent shall have any duties or
responsibilities under this Agreement or any other Loan Document, or any
fiduciary relationship with any Lender, and shall have no functions,
responsibilities, duties, obligations or liabilities for acting as the Sole Lead
Arranger or Syndication Agent hereunder.
SECTION 8.03. Resignation by the Agents. Subject to the appointment and
acceptance of a successor Agent as provided below, any Agent may resign at any
time by notifying the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor with the consent of
the Borrower (not to be unreasonably withheld or delayed). If no successor shall
have been so appointed by the Required Lenders and approved by the Borrower and
shall have accepted such appointment within 30 days after the retiring Agent
gives notice of its resignation, then the retiring Agent may, on behalf of the
Lenders with the consent of the Borrower (not to be unreasonably withheld or
delayed), appoint a successor Agent which shall be a bank with an office in New
York, New York, having a combined capital and surplus of at least $500,000,000
or an Affiliate of any such bank. Upon the acceptance of any appointment as
Agent hereunder by a successor bank, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After the Agent's resignation hereunder, the provisions of this
Article and Section 9.05 shall continue in effect for its benefit in respect of
any actions taken or omitted to be taken by it while it was
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acting as Agent. It is hereby understood that in the event that the Syndication
Agent or Sole Lead Arranger resigns, no successor to the Syndication Agent or
Sole Lead Arranger, as the case may be, shall be required.
SECTION 8.04. Each Agent in its Individual Capacity. With respect to
the Loans made by it hereunder, each Agent in its individual capacity and not as
Agent shall have the same rights and powers as any other Lender and may exercise
the same as though it were not an Agent, and the Agents and their Affiliates may
accept deposits from, lend money to and generally engage in any kind of business
with the Borrower or any of its Subsidiaries or other Affiliates thereof as if
it were not an Agent.
SECTION 8.05. Indemnification. Each Lender agrees (a) to reimburse the
Agents, on demand, in the amount of its pro rata share (based on its Commitments
hereunder (or if such Commitments shall have expired or been terminated, in
accordance with the respective principal amounts of its applicable outstanding
Loans or participations in L/C Disbursements, as applicable)) of any reasonable
expenses incurred for the benefit of the Lenders by the Agents, including
counsel fees and compensation of agents and employees paid for services rendered
on behalf of the Lenders, which shall not have been reimbursed by the Borrower
and (b) to indemnify and hold harmless each Agent and any of its directors,
officers, employees or agents, on demand, in the amount of such pro rata share,
from and against any and all liabilities, taxes, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by or asserted
against it in its capacity as Agent or any of them in any way relating to or
arising out of this Agreement or any other Loan Document or any action taken or
omitted by it or any of them under this Agreement or any other Loan Document, to
the extent the same shall not have been reimbursed by the Borrower, provided
that no Lender shall be liable to an Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of such Agent or any of its directors, officers, employees or agents.
SECTION 8.06. Lack of Reliance on Agents. Each Lender acknowledges that
it has, independently and without reliance upon the Agents or any other Lender
and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the
Agents or any other Lender and based on such documents and information as it
shall from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this Agreement or any other Loan
Document, any related agreement or any document furnished hereunder or
thereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:
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(a) if to the Borrower, to it at 0000 Xxxxxxxx Xxxxxx Xxxx, Xxxx,
Xxxxxxxxxxxx, 00000, Attention of the Chief Financial Officer (Telecopy No.
(000) 000-0000), and if to Holdings, to it in care of the Borrower, in each
case with a copy to The Blackstone Group, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention of Xx. Xxxxx X. Xxxxxxxxx (Telecopy No. (212)
583-5717);
(b) if to the Administrative Agent, to Deutsche Bank Trust Company
Americas, 000 Xxxxx Xxxxxx Xx., Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention of Xxxxx Xxxxxx (Telecopy No. (312) 993-____);
(c) if to the Fronting Bank (if other than the Administrative Agent),
to it at its address (or telecopy number) set forth separately in writing;
and
(d) if to a Lender, to it at its address (or telecopy number) set forth
on Schedule B.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower and the Guarantors herein,
in the other Loan Documents and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this Agreement or any
other Loan Document shall be considered to have been relied upon by the Lenders
each Fronting Bank and shall survive the making by the Lenders of the Loans, the
execution and delivery to the Lenders of the Loan Documents and the issuance of
the Letters of Credit, regardless of any investigation made by the Lenders or on
their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or L/C Disbursement or any Fee
or any other amount payable under this Agreement or any other Loan Document is
outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not been terminated. Without prejudice to the survival of any
other agreements contained herein, indemnification and reimbursement obligations
contained herein (including pursuant to Sections 2.13, 2.15, 2.19 and 9.05)
shall survive the payment in full of the principal and interest hereunder, the
expiration of the Letters of Credit and the termination of the Commitments or
this Agreement.
SECTION 9.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by Holdings, the Borrower, the Co-Borrower, and
the Agents and when the Administrative Agent shall have received copies hereof
which, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of
Holdings, the Borrower, the Co-Borrower, each Fronting Bank, the Agents and each
Lender and their respective permitted successors and assigns.
SECTION 9.04. Successors and Assigns. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of
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the parties hereto; provided, however, no Loan Party may assign or transfer any
of its rights, obligations or interest hereunder or under any other Loan
Document without the prior written consent of all of the Lenders (except in a
merger or consolidation transaction permitted by Section 6.05) and, provided
further, that, although any Lender may transfer, assign or grant participations
in its rights hereunder in accordance with the terms hereof, such Lender shall
remain a "Lender" for all purposes hereunder (and may not transfer or assign all
or any portion of its Commitments hereunder except as provided in Section
9.04(b)) and the transferee, assignee or participant, as the case may be, shall
not constitute a "Lender" hereunder and, provided further, that no Lender shall
transfer or grant any participation under which the participant shall have
rights to approve any amendment to or waiver of this Agreement or any other Loan
Document except to the extent such amendment or waiver would (i) extend the
final scheduled maturity of any Loan, Note or Letter of Credit (unless such
Letter of Credit is not extended beyond the Revolving Credit Maturity Date) in
which such participant is participating, or reduce the rate or extend the time
of payment of interest or Fees thereon (except (x) in connection with a waiver
of applicability of any post-default increase in interest rates and (y) that any
amendment or modification to the financial definitions in this Agreement shall
not constitute a reduction in the rate of interest for purposes of this clause
(i)) or reduce the principal amount thereof, or increase the amount of the
participant's participation over the amount thereof then in effect (it being
understood that a waiver of any Default or Event of Default or of a mandatory
reduction in the total Commitments shall not constitute a change in the terms of
such participation, and that an increase in any Commitment or Loan shall be
permitted without the consent of any participant if the participant's
participation is not increased as a result thereof), (ii) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement or (iii) release all or substantially all of the Collateral
under all of the Security Documents (except as expressly provided in the Loan
Documents) supporting the Loans hereunder in which such participant is
participating. In the case of any such participation, the participant shall not
have any rights under this Agreement or any of the other Loan Documents (the
participant's rights against such Lender in respect of such participation to be
those set forth in the agreement executed by such Lender in favor of the
participant relating thereto) and all amounts payable by the Borrower hereunder
shall be determined as if such Lender had not sold such participation.
(b) Notwithstanding the foregoing, any Lender (or any Lender together
with one or more other Lenders) may (x) assign all or a portion of its Revolving
Credit Commitment (and related outstanding Obligations hereunder), and/or its
outstanding Term Loans to its (i) parent company and/or any affiliate of such
Lender which is at least 50% owned by such Lender or its parent company or (ii)
in the case of any Lender that is a fund that invests in loans, any other fund
that invests in loans and is managed and/or advised by the same investment
advisor of such Lender or by an Affiliate of such investment advisor or (iii) to
one or more Lenders or (y) assign all, or if less than all, (I) a portion equal
to at least (i) $1,000,000 in the case of Term Loans and (ii) $5,000,000 in the
case of Revolving Loans, in each case, in the aggregate for the assigning Lender
or assigning Lenders or (II) a portion equal to all of such assigning Lender's
Commitments or outstanding Loans under a particular Tranche, of such Revolving
Credit Commitments and outstanding principal amount of Term Loans hereunder to
one or more Eligible Transferees, each of which assignees shall become a party
to this Agreement as a Lender by execution of an Assignment and Acceptance,
provided that, (i) at such time Schedule 2.01 shall be deemed modified to
reflect the Commitments (and/or outstanding Term Loans, as the case may be) of
such new Lender and of the existing Lenders, (ii) the consent of the
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Administrative Agent and the Borrower shall be required in connection with any
such assignment pursuant to clause (y) above (which consents (x) shall not be
unreasonably withheld or delayed and (y) in the case of the Borrower, shall not
be required if a Default or Event of Default under Section 7.01(h) or (i) exists
at such time), (iv) the consent of the Swingline Lender and DBTCA, as Fronting
Bank, shall be required in connection with any assignment of all or any portion
of the Revolving Credit Commitments of any Lender and (v) the Administrative
Agent shall receive at the time of each such assignment, from the assigning or
assignee Lender, the payment of a non-refundable assignment fee of $3,500. To
the extent of any assignment pursuant to this Section 9.04(b), the assigning
Lender shall be relieved of its obligations hereunder with respect to its
assigned Commitments (it being understood that the indemnification provisions
under this Agreement (including, without limitation, Sections 2.13, 2.15, 2.19
and 9.05) shall survive as to such assigning Lender). At the time of each
assignment pursuant to this Section 9.04(b) to a person which is not already a
Lender hereunder and which is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for federal income tax purposes, the
respective assignee Lender shall provide to the Borrower and the Administrative
Agent the appropriate Internal Revenue Service Forms described in Section
2.19(f).
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at its address referred to in subsection 9.01 a
copy of each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Lenders and
the Commitments of, and principal amount of the Loans and L/C Disbursements
owing to, each Lender from time to time. The Administrative Agent shall also
record the Revolving L/C Exposure of each Lender in the Register. The entries in
the Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent, each Fronting Bank and the Lenders shall
treat each person whose name is recorded in the Register as the owner of
Commitments and the Loans and Revolving L/C Exposures recorded therein for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower, any Fronting Bank, any Lender and their representatives (including
counsel and accountants), at any reasonable time and from time to time upon
reasonable prior notice.
(d) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower or any Guarantor furnished
to such Lender by or on behalf of the Borrower or any Guarantor, provided that,
prior to any such disclosure, each such assignee or participant or proposed
assignee or participant shall agree to be bound by Section 9.16.
(e) Any Lender may at any time assign all or any portion of its rights
under this Agreement to a Federal Reserve Bank and, with the consent of the
Administrative Agent, any Lender which is a fund that invests in loans may
pledge all or any portion of its Loans or Notes to its trustee in support of its
obligations to the trustee on customary terms, provided that no such assignment
shall release a Lender from any of its obligations hereunder.
(f) In the event that Standard & Poor's Ratings Group or Xxxxx'x
Investors Service, Inc. shall, after the date that any Lender becomes a Lender,
downgrade the long-term
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certificate deposit ratings or long-term senior unsecured debt ratings of such
Lender (or the parent company thereof), and the resulting ratings shall be BBB+
or Baa1 or lower, then any Fronting Bank shall have the right, but not the
obligation, at its own expense, upon notice to such Lender and the
Administrative Agent, to replace (or to request the Borrower, at the sole
expense of such Fronting Bank, to use its reasonable efforts to replace) such
Lender with respect to such Lender's Revolving Credit Commitment with an
assignee (in accordance with and subject to the restrictions contained in
paragraph (b) above), and such Lender hereby agrees to transfer and assign
without recourse (in accordance with and subject to the restrictions contained
in paragraph (b) above) all its interests, rights and obligations in respect of
its Revolving Credit Commitment to such assignee; provided, however, that (i) no
such assignment shall conflict with any law, rule and regulation or order of any
Governmental Authority and (ii) such assignee shall pay to such Lender in
immediately available funds on the date of such assignment the principal of and
interest accrued to the date of payment on the Loans and L/C Disbursements of
such Lender hereunder and all other amounts accrued for such Lender's account or
owed to it hereunder.
(g) Except as provided in Section 2.13(d), no Fronting Bank shall
assign or delegate any of its interests, rights or obligations as a Fronting
Bank under this Agreement without the prior written consent of the Borrower, the
Administrative Agent and the Required Lenders.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower agrees to pay all
reasonable out-of-pocket expenses incurred by the Agents in connection with the
preparation of this Agreement and the other Loan Documents, or by the Agents in
connection with the syndication of the Commitments or the administration of this
Agreement (including expenses incurred in connection with due diligence and
initial and ongoing Collateral examination to the extent incurred with the
reasonable prior approval of the Borrower) or in connection with any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the
transactions hereby contemplated shall be consummated) or incurred by the Agents
or any Lender in connection with the enforcement or protection of their rights
in connection with this Agreement and the other Loan Documents or in connection
with the Loans made or the Letters of Credit issued hereunder, including the
reasonable fees, charges and disbursements of White & Case LLP, counsel for the
Administrative Agent and the Collateral Agent, and, in connection with any such
enforcement or protection, the reasonable fees, charges and disbursements of any
other counsel (including the reasonable allocated costs of internal counsel if a
Lender elects to use internal counsel in lieu of outside counsel) for the
Agents, any Fronting Bank or any Lender (but no more than one such counsel for
any Lender).
(b) The Borrower agrees to indemnify the Agents, each Fronting Bank,
each Lender and each of their respective directors, trustees, officers,
employees, affiliates and agents (each such person being called an "Indemnitee")
against, and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees,
charges and disbursements, incurred by or asserted against any Indemnitee
arising out of, in any way connected with, or as a result of (i) the execution
or delivery of this Agreement or any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties hereto
and thereto of their respective obligations thereunder or the consummation of
the Transaction and the other transactions contemplated hereby and thereby, (ii)
the use of the proceeds of the Loans or the use of any Letter of Credit or
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(iii) any claim, litigation, investigation or proceeding relating to any of the
foregoing, whether or not 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 result from the gross
negligence or willful misconduct of such Indemnitee (treating, for this purpose
only, any Agent, any Fronting Bank or any Lender and its directors, trustees,
officers, affiliates and employees as a single Indemnitee). Subject to and
without limiting the generality of the foregoing sentence, the Borrower agrees
to indemnify each Indemnitee against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including
reasonable counsel or consultant fees, charges and disbursements, incurred by or
asserted against any Indemnitee arising out of, in any way connected with, or as
a result of (A) any Environmental Claim related in any way to Holdings, the
Borrower or any of their Subsidiaries, or (B) any actual or alleged presence,
Release or threatened Release of Hazardous Materials on any Property or any
property owned, leased or operated by any predecessor of Holdings, the Borrower
or any of their Subsidiaries, provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses 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 any of its directors,
trustees, officers or employees. The provisions of this Section 9.05 shall
remain operative and in full force and effect regardless of the expiration of
the term of this Agreement, the consummation of the transactions contemplated
hereby, the repayment of any of the Obligations, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of any Agent, any Fronting
Bank or any Lender. All amounts due under this Section 9.05 shall be payable on
written demand therefor.
(c) Unless an Event of Default shall have occurred and be continuing,
the Borrower shall be entitled to assume the defense of any action for which
indemnification is sought hereunder with counsel of its choice at its expense
(in which case the Borrower shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by an Indemnitee except as set forth
below); provided, however, that such counsel shall be reasonably satisfactory to
each such Indemnitee. Notwithstanding the Borrower's election to assume the
defense of such action, each Indemnitee shall have the right to employ separate
counsel and to participate in the defense of such action, and the Borrower shall
bear the reasonable fees, costs and expenses of such separate counsel, if (i)
the use of counsel chosen by the Borrower to represent such Indemnitee would
present such counsel with a conflict of interest; (ii) the actual or potential
defendants in, or targets of, any such action include both the Borrower and such
Indemnitee and such Indemnitee shall have reasonably concluded that there may be
legal defenses available to it that are different from or additional to those
available to the Borrower (in which case the Borrower shall not have the right
to assume the defense or such action on behalf of such Indemnitee); (iii) the
Borrower shall not have employed counsel reasonably satisfactory to such
Indemnitee to represent it within a reasonable time after notice of the
institution of such action; or (iv) the Borrower shall authorize such Indemnitee
to employ separate counsel at the Borrower's expense. The Borrower will not be
liable under this Agreement for any amount paid by an Indemnitee to settle any
claims or actions if the settlement is entered into without the Borrower's
consent, which consent may not be withheld or delayed unless such settlement is
unreasonable in light of such claims or actions against, and defenses available
to, such Indemnitee.
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(d) Notwithstanding anything to the contrary in this Section 9.05, this
Section 9.05 shall not apply to taxes, it being understood that the Borrower's
only obligations with respect to taxes shall arise under Sections 2.13 and 2.19.
SECTION 9.06. Right of Setoff. (a) If an Event of Default shall have
occurred and be continuing, each Lender and each Fronting Bank is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender or such Fronting Bank (including, without limitation,
by branches and agencies of such Lender wherever located) to or for the credit
or the account of Holdings or the Borrower against any of and all the
obligations of Holdings or the Borrower now or hereafter existing under this
Agreement or any other Loan Document held by such Lender or such Fronting Bank,
irrespective of whether or not such Lender or such Fronting Bank shall have made
any demand under this Agreement or such other Loan Document and although such
obligations may be unmatured. The rights of each Lender and the Fronting Bank
under this Section 9.06 are in addition to other rights and remedies (including
other rights of setoff) which such Lender or such Fronting Bank may have.
(b) NOTWITHSTANDING THE FOREGOING SUBSECTION (a), AT ANY TIME THAT THE
LOANS OR ANY OTHER OBLIGATION SHALL BE SECURED BY REAL PROPERTY LOCATED IN
CALIFORNIA, NO LENDER OR FRONTING BANK SHALL EXERCISE A RIGHT OF SETOFF,
LENDER'S LIEN OR COUNTERCLAIM OR TAKE ANY COURT OR ADMINISTRATIVE ACTION OR
INSTITUTE ANY PROCEEDING TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR ANY NOTE
UNLESS IT IS TAKEN WITH THE CONSENT OF THE REQUIRED LENDERS, IF SUCH SETOFF OR
ACTION OR PROCEEDING WOULD OR MIGHT (PURSUANT TO CALIFORNIA CODE OF CIVIL
PROCEDURE SECTIONS 580a, 580b, 580d AND 726 OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE OR SECTION 2924 OF THE CALIFORNIA CIVIL CODE, IF APPLICABLE, OR
OTHERWISE) AFFECT OR IMPAIR THE VALIDITY, PRIORITY, OR ENFORCEABILITY OF THE
LIENS GRANTED TO THE COLLATERAL AGENT PURSUANT TO THE SECURITY DOCUMENTS OR THE
ENFORCEABILITY OF THE NOTES AND OTHER OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED
EXERCISE BY ANY LENDER OR ANY FRONTING BANK OF ANY SUCH RIGHT WITHOUT OBTAINING
SUCH CONSENT OF THE REQUIRED LENDERS SHALL BE NULL AND VOID. THIS SUBSECTION (b)
SHALL BE SOLELY FOR THE BENEFIT OF EACH OF THE LENDERS AND EACH FRONTING BANK
HEREUNDER.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF
COMMERCE, PUBLICATION NO. 500 (THE
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"UNIFORM CUSTOMS") AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS, THE
LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Agents, any Fronting Bank or any Lender in exercising any right or power
hereunder or under any Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Agents, each Fronting Bank and
the Lenders hereunder and under the other Loan Documents are cumulative and are
not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or any other Loan Document or consent
to any departure by Holdings, the Borrower or any Guarantor therefrom shall in
any event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on Holdings,
the Borrower or any Guarantor in any case shall entitle the Borrower to any
other or further notice or demand in similar or other circumstances.
(b) Subject to the provisions of following clause (c), neither this
Agreement nor any other Loan Document nor any provision hereof or thereof may be
changed, waived, discharged or terminated unless such change, waiver, discharge
or termination is in writing signed by the respective Loan Parties party thereto
and the Required Lenders, provided that no such change, waiver, discharge or
termination shall, without the consent of each Lender (with Obligations being
directly affected in the case of following clause (i)), (i) extend the final
scheduled maturity of any Loan or Note or extend the stated maturity of any
Letter of Credit beyond the Revolving Loan Maturity Date, or reduce the rate or
extend the time of payment of interest or Fees thereon (except (x) in connection
with the waiver of applicability of any post-default increase in interest rates
and (y) that any amendment or modification to the financial definitions in this
Agreement shall not constitute a reduction in the rate of interest for purposes
of this clause (i)), or reduce the principal amount thereof (except to the
extent repaid in cash), (ii) release all or substantially all of the Collateral
(except as expressly provided in the Loan Documents) under all the Security
Documents, (iii) amend, modify or waive any provision of this Section 9.08, (iv)
reduce the percentage specified in the definition of Required Lenders (it being
understood that, with the consent of the Required Lenders, additional extensions
of credit pursuant to this Agreement may be included in the determination of the
Required Lenders on substantially the same basis as the extensions of Term Loans
and the Revolving Loan Commitments are included on the Closing Date) or (v)
consent to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement; provided further, that no such change, waiver,
discharge or termination shall (u) increase the Commitments of any Lender over
the amount thereof then in effect without the consent of such Lender (it being
understood that waivers or modifications of conditions precedent, covenants,
Defaults or Events of Default or of a mandatory reduction in the aggregate
Commitments shall not constitute an increase of the Commitment of any Lender,
and that an increase in the available portion of any Commitment of any Lender
shall not constitute an increase in the Commitment of such Lender), (v) without
the consent of the Swingline Lender or, in the case of Letters of Credit, the
respective Fronting Bank, amend, modify or waive any provision of Section
2.01(c) or 2.20, respectively, or alter its rights or obligations with respect
to Letters of Credit or Swingline Loans, (w) without the
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consent of each Agent affected thereby, amend, modify or waive any provision of
Article VIII as same applies to such Agent or any other provision as same
relates to the rights or obligations of such Agent, (x) without the consent of
the Collateral Agent, amend, modify or waive any provision relating to the
rights or obligations of the Collateral Agent, (y) without the consent of the
Majority Lenders of each Tranche which is being allocated a lesser prepayment,
repayment or commitment reduction as a result of the actions described below (or
without the consent of the Majority Lenders of each Tranche in the case of an
amendment to the definition of Majority Lenders), amend the definition of
Majority Lenders (it being understood that, with the consent of the Required
Lenders, additional extensions of credit pursuant to this Agreement may be
included in the determination of the Majority Lenders on substantially the same
basis as the extensions of Term Loans and the Revolving Loan Commitments are
included on the Closing Date) or alter the required application of any
prepayments or repayments (or commitment reductions), as between the various
Tranches, pursuant to Section 2.11 or 2.12 (excluding Section 2.11(a)) (although
(x) the Required Lenders may waive, in whole or in part, any such prepayment,
repayment or commitment reduction, so long as the application, as amongst the
various Tranches, of any such prepayment, repayment or commitment reduction
which is still required to be made is not altered and (y) if additional Tranches
of Term Loans are extended after the Closing Date with the consent of the
Required Lenders as required above, such Tranches may be included on a pro rata
basis in the various prepayments or repayments required pursuant to Sections
2.11 and 2.12 (excluding Section 2.11(a)) and any section providing scheduled
installments for any new Tranche of Term Loans) or (z) without the consent of
the Supermajority Lenders of the respective Tranche, reduce the amount of, or
extend any Term Loan Installment Date or the installment otherwise due on such
date applicable to such Tranche or, without the consent of the Supermajority
Lenders of each Tranche, amend the definition of Supermajority Lenders (it being
understood that, with the consent of the Required Lenders, additional extensions
of credit pursuant to this Agreement may be included in the determination of the
Supermajority Lenders on substantially the same basis as the extensions of Term
Loans and the Revolving Loan Commitments are included on the Closing Date).
(c) Notwithstanding the foregoing, (i) this Agreement may be amended
(or amended and restated) with the written consent of the Required Lenders, the
Administrative Agent and the Borrower (a) to add one or more additional credit
facilities to this Agreement and to permit the extensions of credit from time to
time outstanding thereunder and the accrued interest and fees in respect thereof
to share ratably in the benefits of this Agreement and the other Loan Documents
with the Term Loans and extensions of credit under the Revolving Credit
Commitments and the accrued interest and fees in respect thereof and (b) to
include appropriately the Lenders holding such credit facilities in any
determination of the Required Lenders and Supermajority Lenders and (ii) this
Agreement may be amended with the written consent of the Administrative Agent,
the Borrower and the Lenders providing the relevant Replacement Term Loans (as
defined below) to permit the refinancing of all outstanding Term Loans
("Refinanced Term Loans") with a replacement term loan tranche hereunder
("Replacement Term Loans"), provided that (a) the aggregate principal amount of
such Refinanced Term Loans shall not exceed the aggregate principal amount of
such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term
Loans shall not be higher than the Applicable Margin for such Refinanced Term
Loans, (c) the weighted average life to maturity of such Replacement Term Loans
shall not be shorter than the weighted average life to maturity of such
Refinanced Term Loans at the time of such refinancing and (d) all other terms
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applicable to such Replacement Term Loans shall be substantially identical to,
or less favorable to the Lenders providing such Replacement Term Loans than,
those applicable to such Refinanced Term Loans, except to the extent necessary
to provide for covenants and other terms applicable to any period after the
latest final maturity of the Term Loans in effect immediately prior to such
refinancing.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the applicable interest rate, together with all
fees and charges that are treated as interest under applicable law
(collectively, the "Charges"), as provided for herein or in any other document
executed in connection herewith, or otherwise contracted for, charged, received,
taken or reserved by any Lender or any Fronting Bank, shall exceed the maximum
lawful rate (the "Maximum Rate") that may be contracted for, charged, taken,
received or reserved by such Lender in accordance with applicable law, the rate
of interest payable hereunder, together with all Charges payable to such Lender
or such Fronting Bank, shall be limited to the Maximum Rate, provided that such
excess amount shall be paid to such Lender or such Fronting Bank on subsequent
payment dates to the extent not exceeding the legal limitation.
SECTION 9.10. Entire Agreement. This Agreement, the other Loan
Documents and the agreements regarding certain Fees referred to herein
constitute the entire contract between the parties relative to the subject
matter hereof. Any previous agreement among or representations from the parties
with respect to the subject matter hereof is superseded by this Agreement and
the other Loan Documents. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any party other than
the parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
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, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the 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.
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SECTION 9.13. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract, and shall become
effective as provided in Section 9.03.
SECTION 9.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) Each of
Holdings and the Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any Lender or any Fronting Bank may otherwise have to bring any
action or proceeding relating to this Agreement or the other Loan Documents
against Holdings, the Borrower or any Guarantor or their properties in the
courts of any jurisdiction.
(b) Each of Holdings and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the other Loan Documents in any New York State or federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.16. Confidentiality. Each of the Lenders, the Fronting Bank
and each of the Agents agrees that it shall maintain in confidence any
information relating to Holdings, the Borrower and the other Loan Parties
furnished to it by or on behalf of Holdings, the Borrower or the other Loan
Parties (other than information that (a) has become generally available to the
public other than as a result of a disclosure by such party, (b) has been
independently developed by such Lender, such Fronting Bank or such Agent without
violating this Section 9.16 or (c) was available to such Lender, such Fronting
Bank or such Agent from a third party having, to such person's knowledge, no
obligations of confidentiality to Holdings, the Borrower or any other Loan
Party) and shall not reveal the same other than (i) to its directors, trustees,
officers, employees and advisors with a need to know or to any person that
approves or administers the Loans on behalf of such Lender (so long as each such
person shall have been instructed to keep the same confidential in accordance
with this Section 9.16) and (ii) as
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contemplated by Section 9.04(d), except: (A) to the extent necessary to comply
with law or any legal process or the requirements of any Governmental Authority
or of any securities exchange on which securities of the disclosing party or any
Affiliate of the disclosing party are listed or traded, (B) as part of normal
reporting or review procedures to Governmental Authorities, (C) to its parent
companies, Affiliates or auditors (so long as each such person shall have been
instructed to keep the same confidential in accordance with this Section 9.16),
(D) in order to enforce its rights under any Loan Document in a legal proceeding
and (E) to any direct or indirect contractual counterparty in swap agreements or
such contractual counterparty's professional advisor (so long as such
contractual counterparty or professional advisor to such contractual
counterparty agrees to be bound by the provisions of this Section. Furthermore,
prior to the 90th day after the Closing Date, no Lender, Agent or Fronting Bank
shall, without the prior consent of the Borrower, make any public announcement
(except to the extent required by law) concerning the Transaction or the
financing therefor.
SECTION 9.17. Release of Liens and Guarantees. (a) In the event that
Holdings, the Borrower or any of their Subsidiaries conveys, sells, leases,
assigns, transfers or otherwise disposes of all or any portion of any of the
Equity Interests, assets or property of Holdings, the Borrower or any of their
Subsidiaries to a Person that is not (and is not required to become) a Loan
Party in a transaction not prohibited by Section 6.05, the Administrative Agent
and the Collateral Agent shall promptly (and the Lenders hereby authorize the
Administrative Agent and the Collateral Agent to) take such action and execute
any such documents as may be reasonably requested by the Borrower and at the
Borrower's expense to release any Liens created by any Loan Document in respect
of such Equity Interests, assets or property (provided that in no event shall
the Equity Interests of the Borrower be released under this Section 9.17),
including the release and satisfaction of record of any mortgage or deed of
trust granted in connection herewith, and, in the case of a disposition of all
or substantially all the Equity Interests of any Subsidiary Guarantor, terminate
such Subsidiary Guarantor's obligations under the Subsidiary Guarantee
Agreement. In addition, the Administrative Agent and the Collateral Agent agree
to take such actions as are reasonably requested by the Borrower and at the
Borrower's expense to terminate the Liens and security interests created by the
Loan Documents when all the Obligations are paid in full and all Letters of
Credit and Commitments are terminated. Any representation, warranty or covenant
contained in any Loan Document relating to any such Equity Interests, assets,
property or Subsidiary of Holdings (other than the Borrower) shall no longer be
deemed to be made once such Equity Interests, assets or property is so conveyed,
sold, leased, assigned, transferred or disposed of.
(b) In the event that Holdings, the Borrower or any of their
Subsidiaries creates any Lien on any property pursuant to Section 6.02(c), (d),
(j) or (k) and the agreements governing such Lien prohibit the Lien on such
property created by the Loan Documents (or require the subordination thereof),
the Administrative Agent and the Collateral Agent shall promptly (and the
Lenders hereby authorize the Administrative Agent and the Collateral Agent to)
take such action and execute any such documents as may be reasonably requested
by the Borrower and act at the Borrower's expense to release (or subordinate, as
the case may be) any Liens created by the Loan Document on such property;
provided that the Borrower will use reasonable good faith efforts to have the
respective lien holder agree to the subordination of the Liens created by the
Loan Documents as opposed to a release thereof.
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SECTION 9.18. Co-Borrower's Obligations. The Co-Borrower is a party
hereto for purposes of providing co-extensive obligors for the Obligations (on a
joint and several basis), although the parties acknowledge that the Co-Borrower
shall not have any substantial assets or other property. All references in this
Agreement and the other Loan Documents to the "Borrower" shall be deemed to
include a reference to the Co-Borrower, mutatis mutandis, whether or not actual
reference is made thereto; provided, that, without limiting the generality of
the foregoing, any obligations by any of the parties hereto to the Borrower
shall be deemed fulfilled with respect to the Co-Borrower when fulfilled with
respect to the Borrower.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
GPC CAPITAL CORP. II (to be renamed
Xxxxxx Packaging Company Inc.)
By:
-------------------------------------------
Name:
Title:
XXXXXX PACKAGING COMPANY, L.P.
By GPC Opco LLC, its general partner
By:
-------------------------------------------
Name:
Title:
GPC CAPITAL CORP. I
By:
-------------------------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY
AMERICAS,
Individually, as Administrative Agent and as
Fronting Bank
By:
-------------------------------------------
Name:
Title:
DEUTSCHE BANK SECURITIES INC.,
as Sole Lead Arranger and Sole Book
Runner
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
XXXXXXX XXXXX XXXXXX INC.,
as Syndication Agent
By:
-------------------------------------
Name:
Title:
CITICORP NORTH AMERICA, INC.,
By:
-------------------------------------
Name:
Title:
Acknowledged and Agreed:
GPC OPCO GP LLC
XXXXXX PACKAGING POLAND, L.P.,
By: GPC Sub GP LLC, its general partner
XXXXXX RECYCLING COMPANY,
By: GPC Sub GP LLC, its general partner
XXXXXX PACKAGING FRANCE PARTNERS,
By: GPC Sub GP LLC, its general partner
XXXXXX PACKAGING LATIN AMERICA, LLC
GPC SUB GP LLC
By:
------------------------------------
Name
Title:
On Behalf of each of the above
Subsidiary Guarantors
