Exhibit 10.1
================================================================================
CREDIT AGREEMENT
Dated as of April 6, 2004,
among
BCP CRYSTAL HOLDINGS LTD. 2
BCP CAYLUX HOLDINGS LUXEMBOURG S.C.A.
and
THE SUBSIDIARY REVOLVING BORROWERS,
THE LENDERS PARTY HERETO,
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Global Coordinator,
and
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent,
----------
DEUTSCHE BANK SECURITIES INC.
and
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Joint Lead Arrangers
ABN AMRO BANK N.V.,
BANK OF AMERICA, N.A.,
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Documentation Agents
BAYERISCHE HYPO-UND VEREINSBANK AG,
MIZUHO CORPORATE BANK, LTD.,
THE BANK OF NOVA SCOTIA,
KfW,
and
COMMERZBANK AG, NEW YORK AND CAYMAN BRANCHES
as Senior Managing Agents
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I Definitions..............................................................................3
SECTION 1.01 Defined Terms...................................................................3
SECTION 1.02 Terms Generally................................................................55
SECTION 1.03 Exchange Rates.................................................................56
SECTION 1.04 Effectuation of Transaction....................................................56
ARTICLE II The Credits.............................................................................56
SECTION 2.01 Commitments....................................................................56
SECTION 2.02(A) Loans and Borrowings...........................................................57
SECTION 2.02(B) Credit-Linked Deposits.........................................................58
SECTION 2.03 Requests for Borrowings........................................................59
SECTION 2.04 Swingline Loans................................................................60
SECTION 2.05 Letters of Credit..............................................................62
SECTION 2.06 Funding of Borrowings..........................................................68
SECTION 2.07 Interest Elections.............................................................69
SECTION 2.08 Termination and Reduction of Commitments.......................................70
SECTION 2.09 Repayment of Loans; Evidence of Debt, etc......................................72
SECTION 2.10 Repayment of Term Loans........................................................73
SECTION 2.11 Prepayments, etc...............................................................74
SECTION 2.12 Fees...........................................................................75
SECTION 2.13 Interest.......................................................................76
SECTION 2.14 Alternate Rate of Interest.....................................................77
SECTION 2.15 Increased Costs................................................................78
SECTION 2.16 Break Funding Payments.........................................................79
SECTION 2.17 Taxes..........................................................................79
SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of Set-offs....................81
SECTION 2.19 Mitigation Obligations; Replacement of Lenders.................................83
SECTION 2.20 Revolving Borrowers............................................................83
SECTION 2.21 Additional Reserve Costs.......................................................84
SECTION 2.22 Increase in Term Loans.........................................................84
SECTION 2.23 Illegality.....................................................................85
ARTICLE III Representations and Warranties..........................................................86
SECTION 3.01 Organization; Powers...........................................................86
SECTION 3.02 Authorization..................................................................86
SECTION 3.03 Enforceability.................................................................87
SECTION 3.04 Governmental Approvals.........................................................87
SECTION 3.05 Financial Statements...........................................................87
SECTION 3.06 No Material Adverse Effect.....................................................88
SECTION 3.07 Title to Properties; Possession Under Leases...................................88
(i)
TABLE OF CONTENTS
(continued)
Page
----
SECTION 3.08 Subsidiaries...................................................................89
SECTION 3.09 Litigation; Compliance with Laws...............................................89
SECTION 3.10 Federal Reserve Regulations....................................................90
SECTION 3.11 Investment Company Act; Public Utility Holding Company Act.....................90
SECTION 3.12 Use of Proceeds................................................................90
SECTION 3.13 Tax Returns....................................................................90
SECTION 3.14 No Material Misstatements......................................................91
SECTION 3.15 Employee Benefit Plans.........................................................91
SECTION 3.16 Environmental Matters..........................................................92
SECTION 3.17 Security Documents.............................................................93
SECTION 3.18 Location of Real Property and Leased Premises..................................94
SECTION 3.19 Solvency.......................................................................94
SECTION 3.20 Labor Matters..................................................................95
SECTION 3.21 Insurance......................................................................95
ARTICLE IV Conditions of Lending...................................................................95
SECTION 4.01 All Credit Events..............................................................95
SECTION 4.02 First Credit Event.............................................................96
SECTION 4.03 Certain Funds Period...........................................................99
SECTION 4.04 Credit Events Relating to Revolving Borrowers..................................99
ARTICLE V Affirmative Covenants..................................................................100
SECTION 5.01 Existence; Businesses and Properties..........................................100
SECTION 5.02 Insurance.....................................................................101
SECTION 5.03 Taxes.........................................................................102
SECTION 5.04 Financial Statements, Reports, etc............................................102
SECTION 5.05 Litigation and Other Notices..................................................105
SECTION 5.06 Compliance with Laws..........................................................105
SECTION 5.07 Maintaining Records; Access to Properties and Inspections.....................105
SECTION 5.08 Use of Proceeds...............................................................106
SECTION 5.09 Compliance with Environmental Laws............................................106
SECTION 5.10 Further Assurances; Additional Mortgages......................................106
SECTION 5.11 Fiscal Year; Accounting.......................................................108
SECTION 5.12 Interest Rate Protection Agreements...........................................108
SECTION 5.13 Proceeds of Certain Dispositions..............................................108
SECTION 5.14 Post-Closing Matters..........................................................108
SECTION 5.15 Delisting.....................................................................108
(ii)
TABLE OF CONTENTS
(continued)
Page
----
ARTICLE VI Negative Covenants.....................................................................108
SECTION 6.01 Indebtedness..................................................................109
SECTION 6.02 Liens.........................................................................112
SECTION 6.03 Sale and Lease-Back Transactions..............................................115
SECTION 6.04 Investments, Loans and Advances...............................................116
SECTION 6.05 Mergers, Consolidations, Sales of Assets and Acquisitions.....................119
SECTION 6.06 Dividends and Distributions...................................................121
SECTION 6.07 Transactions with Affiliates..................................................123
SECTION 6.08 Business of Holdings and the Subsidiaries.....................................124
SECTION 6.09 Limitation on Modifications and Prepayments...................................126
SECTION 6.10 Capital Expenditures..........................................................127
SECTION 6.11 Interest Coverage Ratio.......................................................128
SECTION 6.12 Total Leverage Ratio..........................................................128
SECTION 6.13 Bank Leverage Ratio...........................................................128
SECTION 6.14 Swap Agreements...............................................................128
SECTION 6.15 No Other "Designated Senior Indebtedness".....................................129
SECTION 6.16 Limitation on the Lenders' Control over German Entities.......................129
ARTICLE VII Events of Default......................................................................130
SECTION 7.01 Events of Default.............................................................130
SECTION 7.02 Holdings' Right to Cure.......................................................133
SECTION 7.03 Clean-Up Period...............................................................134
ARTICLE VIII The Agents.............................................................................134
SECTION 8.01 Appointment...................................................................134
SECTION 8.02 Nature of Duties..............................................................135
SECTION 8.03 Resignation by the Agents.....................................................136
SECTION 8.04 The Administrative Agent in Its Individual Capacity...........................136
SECTION 8.05 Indemnification...............................................................136
SECTION 8.06 Lack of Reliance on Agents....................................................137
SECTION 8.07 Designation of Affiliates for Loans Denominated in Euros......................137
ARTICLE IX Miscellaneous..........................................................................137
SECTION 9.01 Notices.......................................................................137
SECTION 9.02 Survival of Agreement.........................................................138
SECTION 9.03 Binding Effect................................................................138
SECTION 9.04 Successors and Assigns........................................................138
SECTION 9.05 Expenses; Indemnity...........................................................141
(iii)
TABLE OF CONTENTS
(continued)
Page
----
SECTION 9.06 Right of Set-off..............................................................143
SECTION 9.07 Applicable Law................................................................143
SECTION 9.08 Waivers; Amendment............................................................143
SECTION 9.09 Interest Rate Limitation......................................................146
SECTION 9.10 Entire Agreement..............................................................146
SECTION 9.11 WAIVER OF JURY TRIAL..........................................................146
SECTION 9.12 Severability..................................................................147
SECTION 9.13 Counterparts..................................................................147
SECTION 9.14 Headings......................................................................147
SECTION 9.15 Jurisdiction; Consent to Service of Process...................................147
SECTION 9.16 Confidentiality...............................................................148
SECTION 9.17 Conversion of Currencies......................................................149
SECTION 9.18 Release of Liens and Guarantees...............................................149
SECTION 9.19 Parallel Debt.................................................................150
ARTICLE X Collection Allocation Mechanism........................................................151
SECTION 10.01 Implementation of CAM.........................................................151
SECTION 10.02 Letters of Credit.............................................................152
EXHIBITS AND SCHEDULES
Exhibit A Form of Assignment and Acceptance
Exhibit B-1 Form of Borrowing Request
Exhibit B-2 Form of Request To Issue
Exhibit C Form of Swingline Borrowing Request
Exhibit D Form of U.S. Collateral Agreement
Exhibit E Form of CAC Note
Exhibit F Form of Holdings Guarantee and Pledge Agreement
Exhibit G Form of Parent Guarantee and Pledge Agreement
Exhibit H Form of Subordinated Intercompany Debt
Exhibit I-1 Form of Revolving Borrower Agreement
Exhibit I-2 Form of Revolving Borrower Termination
Exhibit J Reserve Costs for Mandatory Costs Rate
Exhibit K Form of Solvency Certificate
Exhibit L Form of Real Property Officers' Certificate
(iv)
TABLE OF CONTENTS
(continued)
Schedule 1.01(a) Collateral and Guarantee Requirements
Schedule 1.01(h) Excluded Subsidiaries
Schedule 2.01 Commitments
Schedule 2.04 Swingline Commitments
Schedule 2.05(a) Existing Letters of Credit
Schedule 3.01 Organization
Schedule 3.04 Governmental Approvals
Schedule 3.08(a) Closing Date Structure
Schedule 3.08(b) Subsidiaries
Schedule 3.08(c) Subscriptions
Schedule 3.09 Litigation
Schedule 3.13 Taxes
Schedule 3.16 Environmental
Schedule 3.20 Labor Matters
Schedule 3.21 Insurance
Schedule 4.02(b) Local U.S. and/or Foreign Counsel
Schedule 5.14 Post-Closing Matters
Schedule 6.01 Indebtedness
Schedule 6.02(a) Liens
Schedule 6.04 Investments
Schedule 6.07 Transactions with Affiliates
(v)
CREDIT AGREEMENT dated as of April 6, 2004 (this "AGREEMENT"), among
BCP CRYSTAL HOLDINGS LTD. 2, a company incorporated with limited liability under
the laws of the Cayman Islands ("HOLDINGS"), BCP CAYLUX HOLDINGS LUXEMBOURG
S.C.A., a corporate partnership limited by shares (societe en commandite par
actions) organized under the laws of Luxembourg ("PARENT"), CELANESE AMERICAS
CORPORATION, a Delaware corporation ("CAC"), certain subsidiaries of Parent from
time to time party hereto as a borrower under the Revolving Facility provided
for herein (in such capacity, the "SUBSIDIARY REVOLVING BORROWERS"), the LENDERS
party hereto from time to time, XXXXXX XXXXXXX SENIOR FUNDING, INC. ("XXXXXX
XXXXXXX"), as global coordinator (in such capacity, the "GLOBAL COORDINATOR"),
DEUTSCHE BANK AG,
NEW YORK BRANCH ("DBNY"), 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. and
XXXXXX XXXXXXX SENIOR FUNDING, INC., as joint lead arrangers (in such capacity,
the "JOINT LEAD ARRANGERS").
W I T N E S S E T H :
WHEREAS, Blackstone Capital Partners (Cayman) IV L.P. and its
affiliates or any other investment vehicle controlled by any of them
(collectively "BLACKSTONE") have directly or indirectly formed (i) Holdings,
(ii) Parent, all of the Equity Interests (as hereinafter defined) of which are
owned directly or indirectly by Holdings, (iii) BCP Crystal US Holdings Corp.
("US HOLDCO"), a wholly-owned subsidiary of Parent organized under the laws of
Delaware, (iv) BCP Holdings GmbH ("LP GmbH"), a wholly-owned subsidiary of
Parent organized under the laws of Germany, (v) BCP Acquisition GmbH & Co. KG
("MIDCO"), all of the limited partnership interests of which are owned by LP
GmbH, organized under the laws of Germany, (vi) BCP Crystal Acquisition GmbH &
Co. KG ("BIDCO"), all of the limited partnership interests of which are owned by
Midco, organized under the laws of Germany and (vii) BCP Management GmbH ("GP
GmbH"), a wholly-owned subsidiary of Parent and the general partner of Midco and
Bidco, organized under the laws of Germany;
WHEREAS, Bidco has made an offer (the "OFFER") to acquire all the
issued capital stock of Celanese AG (the "COMPANY"), a stock corporation
organized under the laws of Germany, at a price per share of EURO 32.50;
WHEREAS, in connection with the consummation of the Offer, Blackstone
and other Permitted Investors (as defined below) directly or indirectly are to
subscribe for shares of Holdings in cash or make a cash capital contribution to
Holdings of not less than EURO 690 million (less up to EURO 15 million in
satisfaction of certain fees and expenses) (the "HOLDCO EQUITY FINANCING");
WHEREAS, in connection with the consummation of the Offer, Holdings
will contribute to Parent, directly or indirectly through the Intermediate
Holdcos (as hereinafter defined), if any, as a capital contribution (made in the
form of common equity for approximately 1% of such capital contribution and
Parent CPECs (as hereinafter defined) for the remainder of
such capital contribution), the net proceeds (including net of certain fees and
expenses to be paid directly by Holdings) of the Holdco Equity Financing;
WHEREAS, in connection with the consummation of the Offer, Parent will
borrow senior subordinated loans under a bridge facility (the "SENIOR
SUBORDINATED BRIDGE C FACILITY") in an amount equal to the C Debt Amount (as
hereinafter defined) (which bridge loans are anticipated to be refinanced by the
issuance of Senior Subordinated Notes (as hereinafter defined));
WHEREAS, in connection with the consummation of the Offer, Parent will
borrow senior subordinated loans under a bridge facility (the "SENIOR
SUBORDINATED BRIDGE B FACILITY") in an amount equal to the Permitted B Debt
Level (as hereinafter defined) (which bridge loans are anticipated to be
refinanced by the issuance of Senior Subordinated Notes);
WHEREAS, Parent is to borrow the Dollar Equivalent of up to EURO 500
million (or such greater amount as provided for hereunder) under the Term Loan
Facility provided for herein;
WHEREAS, Parent will, with the net proceeds of the financings
described in the previous recitals and concurrently with Parent's receipt
thereof, (i) on-lend a portion to CAC by way of the CAC Loans (as hereinafter
defined), (ii) on-lend a further portion to Bidco by way of the Bidco Loan (as
hereinafter defined), (iii) on-lend a further portion to Midco, by way of an
intercompany loan, (iv) on-lend a further portion to LP GmbH, by way of an
intercompany loan, (v) contribute a further portion of such proceeds to LP GmbH
as an equity contribution and (vi) retain the remainder of such proceeds pending
application in accordance with Section 3.12 of the Senior Subordinated Bridge C
Loan Agreement (as hereinafter defined); LP GmbH will contribute the proceeds so
received by it (less any amount retained by it to service interest payments for
one year) to Midco as an equity contribution; and Midco will contribute the
proceeds it receives from Parent (less any amount retained by it to service
interest payments for one year) and LP GmbH to Bidco as an equity contribution;
WHEREAS, the obligations of Parent under this Agreement and under its
guarantee of the Revolving Facility Credit Exposure (as hereinafter defined)
will initially be secured by (i) a guarantee from Holdings and the Intermediate
Holdcos and first-ranking pledge of all of the issued Equity Interests of
Parent, (ii) secured guarantees from CAC and the CAC Guarantor Subsidiaries (as
hereinafter defined) and (iii) a first-ranking pledge by Parent of the CAC Note
(as hereinafter defined), with the aforesaid pledge of the CAC Note by Parent
terminating on the Restructuring Date (as hereinafter defined); and
WHEREAS, the obligations of Parent under the Senior Subordinated
Bridge B Facility will initially be supported by pledges of the Bidco Loan and
of all of the shares in the Company acquired by Bidco pursuant to the Offer;
following the Delisting (as defined below), such pledges will be extended to the
obligations of the Parent under the Senior Subordinated Bridge C Facility; and
upon the Restructuring Date, such pledges shall terminate.
-2-
NOW, THEREFORE, the Lenders are willing to extend senior secured
credit to Borrowers 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 CL LOAN" shall mean any CL Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ABR LOAN" shall mean any ABR Term Loan, ABR Revolving Loan, ABR CL
Loan or Swingline Dollar Loan.
"ABR REVOLVING BORROWING" shall mean a Borrowing comprised of ABR
Revolving Loans.
"ABR REVOLVING LOAN" shall mean any Revolving Facility Loan
denominated in Dollars bearing interest at a rate determined by reference to the
Alternate Base Rate in accordance with the provisions of Article II.
"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 assigned to such term in
Section 5.10(c).
"ADJUSTED LIBO RATE" shall mean, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the result of dividing (a) the
LIBO Rate in effect for such Interest Period by (b) 1.00 minus the Statutory
Reserves applicable to such Eurocurrency Borrowing, if any.
"ADMINISTRATIVE AGENT" shall have the meaning assigned to such term in
the introductory paragraph of this Agreement.
"ADMINISTRATIVE AGENT FEES" shall have the meaning assigned to such
term in Section 2.12(d).
"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.
-3-
"AGENTS" shall mean the Administrative Agent, the Collateral Agent,
the Deposit Bank and each Documentation Agent.
"AGREEMENT" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"AGREEMENT CURRENCY" shall have the meaning assigned to such term in
Section 9.17(b).
"ALTERNATE BASE RATE" shall mean, for any day, a rate per annum equal
to the greater of (a) the Prime Rate 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.
"ALTERNATE PLEDGE AGREEMENT" shall mean a pledge agreement in form and
substance reasonably satisfactory to the Administrative Agent and the Term
Borrower effecting the pledge under local law of not in excess of 65% of the
issued and outstanding Equity Interests of a Foreign Subsidiary in support of
the obligations of the Domestic Subsidiary Loan Party which is the owner of such
Equity Interests.
"APPLICABLE CL MARGIN" shall mean, at any time, 2.50% per annum.
"APPLICABLE CREDITOR" shall have the meaning assigned to such term in
Section 9.17(b).
"APPLICABLE MARGIN" shall mean (i) for any day with respect to any
Eurocurrency Loan that is a Revolving Facility Loan or CL Loan, 2.50% per annum,
and any ABR Loan that is a Revolving Facility Loan or CL Loan, 1.50% per annum,
and (ii) for any day with respect to any Eurocurrency Loan that is a Term Loan,
2.75% per annum, and for any ABR Loan that is a Term Loan, 1.75%.
"APPLICANT PARTY" shall mean, with respect to a Letter of Credit, the
Borrower for whose account such Letter of Credit is being issued (with all CL
Letters of Credit to be issued for the account of the CL Borrower).
"APPROVED FUND" shall mean any person (other than a natural person)
that is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and that is
administered or managed by a Lender, an Affiliate of a Lender or an entity or an
Affiliate of an entity that administers or manages a Lender.
-4-
"ASSET ACQUISITION" shall mean any Permitted Business Acquisition, the
aggregate consideration for which exceeds $15.0 million, and, if effected, the
Designated Acquisition.
"ASSET DISPOSITION" shall mean any sale, transfer or other disposition
by Holdings or any of the Subsidiaries to any person other than Holdings or any
Subsidiary to the extent otherwise permitted hereunder of any asset or group of
related assets (other than inventory or other assets sold, transferred or
otherwise disposed of in the ordinary course of business) in one or a series of
related transactions, the Net Proceeds from which exceed $35.0 million.
"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 Term Borrower (if required by such assignment and acceptance),
substantially 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 (a) the Cumulative Retained Excess Cash Flow
Amount on such date plus the aggregate amount of proceeds received after the
Closing Date and prior to such date that would have constituted Net Proceeds
pursuant to clause (a) of the definition thereof except for the operation of
clause (x) or (y) of the second proviso thereof, minus (b) any amounts thereof
used to make Investments pursuant to Section 6.04(b), clause (ii) of Section
6.04(l) and/or clause (iii) of Section 6.04(m) after the Closing Date and on or
prior to such date, minus (c) the aggregate amount of Capital Expenditures made
after the Closing Date and on or prior to such date pursuant to Section 6.10(c).
"AVAILABLE REVOLVING UNUSED COMMITMENT" shall mean, with respect to a
Revolving Facility Lender at any time, an amount equal to the amount by which
(a) the Revolving Facility Commitment of such Revolving Facility Lender at such
time exceeds (b) the Revolving Facility Credit Exposure of such Revolving
Facility Lender at such time.
"BAFIN" shall mean the German Federal Financial Supervisory Authority.
"BANK LEVERAGE RATIO" shall mean, on any date, the ratio of (a)
Consolidated Net Bank Debt as of such date to (b) EBITDA for the period of four
consecutive fiscal quarters of Holdings most recently ended as of such date, all
determined on a consolidated basis in accordance with US GAAP, provided that to
the extent any Asset Disposition or any Asset Acquisition (or any similar
transaction or transactions that require a waiver or a consent by the Required
Lenders pursuant to Section 6.04 or 6.05) or incurrence or repayment of
Indebtedness (excluding normal fluctuations in revolving Indebtedness incurred
for working capital purposes) has occurred during the relevant Test Period,
EBITDA shall be determined for the respective Test Period on a Pro Forma Basis
for such occurrences.
"BIDCO" shall have the meaning assigned to such term in the first
recital of this Agreement.
"BIDCO LOAN" shall mean a loan of all the proceeds of Senior
Subordinated Bridge B Loans made by Parent to Bidco, which loan is made pursuant
to documentation reasonably satisfactory to the Administrative Agent.
-5-
"BIDCO PLEDGE" shall mean one or more Pledge Agreements executed by
(i) Bidco and Xxxxxx Xxxxxxx as collateral agent (or any successor or
replacement collateral agent in respect of the exchange notes or Senior
Subordinated Notes referred to below), pursuant to which Bidco has granted a
security interest on all shares of capital stock of the Company owned by Bidco
and (ii) Parent and Xxxxxx Xxxxxxx as collateral agent (or any successor or
replacement collateral agent in respect of the exchange notes or Senior
Subordinated Notes referred to below), pursuant to which Parent has granted a
security interest on the Bidco Loan, in each case to secure the Senior
Subordinated Bridge B Loans and, after a Delisting, the Senior Subordinated
Bridge C Loans (including, in each case if issued prior to the Restructuring
Date, any exchange notes for which the Senior Subordinated Bridge B Loans or
Senior Subordinated Bridge C Loans are exchanged in accordance with the terms of
the Senior Subordinated Bridge B Loan Agreement or the Senior Subordinated
Bridge C Loan Agreement, as applicable) and, after the issuance thereof (if
issued prior to the Restructuring Date), the Senior Subordinated Notes, as the
same may be amended, supplemented or otherwise modified from time to time, with
the Bidco Pledge to terminate on the Restructuring Date.
"BLACKSTONE" shall have the meaning assigned to such term in the first
recital of this Agreement.
"BOARD" shall mean the Board of Governors of the Federal Reserve
System of the United States of America.
"BORROWER" shall mean and include (i) (x) if prior to the
Restructuring Date, Parent as the Term Borrower and if after the RB Date a
Revolving Borrower or (y) on and after the Restructuring Date, US Holdco as the
Term Borrower and as a CL Borrower, (ii) CAC as a CL Borrower and as a Revolving
Borrower and (iii) each other subsidiary that is a Subsidiary Revolving
Borrower.
"BORROWING" shall mean a group of Loans of a single Type under a
single Facility and made on a single date and, in the case of Eurocurrency
Loans, as to which a single Interest Period is in effect.
"BORROWING MINIMUM" shall mean (a) in the case of a CL Borrowing, a
Term Borrowing and/or a Revolving Facility Borrowing denominated in Dollars,
$5.0 million, (b) in the case of a Revolving Facility Borrowing denominated in
Euros, EURO 3.0 million, (c) in the case of a Swingline Dollar Borrowing,
$500,000 and (d) in the case of a Swingline Euro Borrowing, EURO 500,000.
"BORROWING MULTIPLE" shall mean (a) in the case of a CL Borrowing, a
Term Borrowing or a Revolving Borrowing denominated in Dollars, $1.0 million,
(b) in the case of a Revolving Borrowing denominated in Euros, EURO 1.0 million,
(c) in the case of a Swingline Dollar Borrowing, $500,000 and (d) in the case of
a Swingline Euro Borrowing, EURO 500,000.
"BORROWING REQUEST" shall mean a request by a Borrower in accordance
with the terms of Section 2.03 and substantially in the form of EXHIBIT B-1.
-6-
"BRIDGE TERMINATION DATE" shall mean the earlier of (i) the first
anniversary of the Closing Date and (ii) the first date after the Closing Date
on which there are no outstanding Senior Subordinated Bridge B Loans and/or
Senior Subordinated Bridge C Loans.
"BUSINESS DAY" shall mean any day that is not a Saturday, Sunday or
other day on which commercial banks in
New York City are authorized or required
by law to remain closed; PROVIDED that (a) when used in connection with a
Eurocurrency Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in deposits in the applicable currency in the
London interbank market and (b) when used in connection with a Loan denominated
in Euros, the term "Business Day" shall also exclude any day on which the TARGET
payment system is not open for the settlement of payments in Euros.
"C DEBT AMOUNT" shall mean an amount equal to (i) the Dollar
Equivalent on the Closing Date of EURO 1,285 million less (ii) the Permitted B
Debt Level.
"CAC" shall have the meaning assigned to such term in the introductory
paragraph of this Agreement.
"CAC GUARANTOR SUBSIDIARY" shall mean each Domestic Subsidiary of CAC,
with an exception for any Special Purpose Receivables Subsidiary and with such
other exceptions (if any) as are satisfactory to the Administrative Agent, it
being agreed that CAMI will not constitute a CAC Guarantor Subsidiary until the
date which is six months after the Closing Date and then only if the CAMI Sale
has not yet been consummated.
"CAC LOANS" shall mean the loans made by Parent to CAC with proceeds
of Term Loans.
"CAC NOTE" shall mean a promissory note evidencing all the CAC Loans,
executed by CAC and substantially in the form of EXHIBIT E, with the CAC Note
pledged pursuant to the Parent Guarantee and Pledge Agreement (to the extent
provided therein).
"CALCULATION DATE" shall mean (a) the last Business Day of each
calendar month, (b) each date (with such date to be reasonably determined by the
Administrative Agent) that is on or about the date of (i) a Borrowing Request or
an Interest Election Request with respect to any Revolving Facility Loan
denominated in Euros, (ii) the issuance of a Euro Letter of Credit or (iii) a
request for a Swingline Euro Borrowing and (c) if an Event of Default under
Section 7.01(b) or (c) has occurred and is continuing, any Business Day as
determined by the Administrative Agent in its sole discretion.
"CAM" shall mean the mechanism for the allocation and exchange of
interests in the Loans, participations in Letters of Credit and collections
thereunder established under Article X.
"CAM EXCHANGE" shall mean the exchange of the Lenders' interests
provided for in Section 10.01.
-7-
"CAM EXCHANGE DATE" shall mean the first date after the Closing Date
on which there shall occur (a) any event described in paragraph (h) or (i) of
Section 7.01 with respect to any Borrower or (b) an acceleration of Loans
pursuant to Section 7.01.
"CAM PERCENTAGE" shall mean, as to each Lender, a fraction, expressed
as a decimal, of which (a) the numerator shall be the sum of (i) the Dollar
Equivalent, determined using the Exchange Rates calculated as of the CAM
Exchange Date, of the aggregate Obligations owed to such Lender, (ii) the
Revolving L/C Exposure, if any, of such Lender (less unreimbursed L/C
Disbursements included therein), (iii) the CL L/C Exposure, if any, of such
Lender (less unreimbursed L/C Disbursements included therein) and (iv) the
Swingline Exposure, if any, of such Lender, in each case immediately prior to
the CAM Exchange Date, and (b) the denominator shall be the sum of (i) the
Dollar Equivalent, determined using the Exchange Rates calculated as of the CAM
Exchange Date, of the aggregate Obligations owed to all the Lenders, (ii) the
aggregate Revolving L/C Exposure of all the Lenders (less unreimbursed L/C
Disbursements included therein) and (iii) the aggregate CL L/C Exposure of all
the Lenders (less unreimbursed L/C Disbursements included therein), in each case
immediately prior to the CAM Exchange Date; PROVIDED that, for purposes of
clause (a) above, the Obligations owed to a Swingline Lender will be deemed not
to include any Swingline Loans except to the extent provided in clause (a)(iii)
above.
"CAMI" shall mean Celanese Advanced Materials, Inc.
"CAMI SALE" shall mean the sale of all or substantially all of the
Equity Interests of, or assets of, CAMI for gross cash consideration of at least
$13 million.
"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 US 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, PROVIDED, HOWEVER, that Capital Expenditures for
Holdings and the Subsidiaries shall not include:
(a) expenditures to the extent they are made with proceeds of the
issuance of Equity Interests of Holdings after the Closing Date to
Blackstone or any other Permitted Investor or with funds that would have
constituted Net Proceeds under clause (a) of the definition of the term
"Net Proceeds" (but that will not constitute Net Proceeds as a result of
the first proviso to such 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, or a binding contract is or has been entered into to
make such expenditures, to replace or repair such lost, destroyed, damaged
or condemned assets, equipment or other property or otherwise to acquire,
maintain, develop, construct, improve, upgrade or repair assets or
properties useful in the business of the Term Borrower and the Subsidiaries
within 12 months of receipt of such proceeds,
(c) interest capitalized during such period,
-8-
(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),
(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 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,
(f) the purchase price of equipment purchased during such period
to the extent the consideration therefor consists of any combination of (i)
used or surplus equipment traded in at the time of such purchase and (ii)
the proceeds of a concurrent sale of used or surplus equipment, in each
case, in the ordinary course of business,
(g) Investments in respect of a Permitted Business Acquisition, or
(h) the purchase price of equipment that is purchased
substantially contemporaneously with the trade-in of existing equipment to
the extent that the gross amount of such purchase price is reduced by the
credit granted by the seller of such equipment for the equipment being
traded in at such time.
"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 US 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 US
GAAP.
"CAPTIVE INSURANCE SUBSIDIARIES" shall mean Celwood Insurance Company
and Xxxxxx Insurance Limited, and any successor to either thereof to the extent
such successor constitutes a Subsidiary.
"CASH INTEREST EXPENSE" shall mean, with respect to Holdings and the
Subsidiaries on a consolidated basis for any period, Interest Expense for such
period, less the sum of (a) pay-in-kind Interest Expense or other noncash
Interest Expense (including as a result of the effects of purchase accounting),
(b) to the extent included in Interest Expense, the amortization of any
financing fees paid by, or on behalf of, Holdings or any Subsidiary, including
such fees paid in connection with the Transactions, (c) the amortization of debt
discounts, if any, or fees in respect of Swap Agreements, (d) the amortization
of any deferred financing costs in respect of the Parent CPECs and (e) cash
interest income of Holdings and its Subsidiaries for such period; PROVIDED that
(i) Cash Interest Expense shall exclude any financing fees paid in connection
with the Transactions (or any refinancing of any Indebtedness incurred in
connection therewith to the
-9-
extent that such financing fees are paid with the proceeds from such refinancing
Indebtedness) or any amendment of this Agreement or upon entering into a
Permitted Receivables Financing and (ii) historical Cash Interest Expense shall
be deemed to be (x) for each of the fiscal quarters ended September 30, 2003,
December 30, 2003 and March 30, 2004, $44.5 million and (y) for the period
beginning April 1, 2004 through to and excluding the Closing Date, the amount
equal to (A) the quotient of $44.5 million, divided by 91, (B) multiplied by the
number of days from and including April 1, 2004 to and excluding the Closing
Date.
"CERTAIN FUNDS PERIOD" shall mean the period beginning on the
Publication Date and ending on the earliest of (i) 10 Business Days following
the date of the expiry of the Offer period including any extension of the Offer
permitted under applicable law and the subsequent offer period (weitere
Annahmefrist) pursuant to Sec. 16 para. 2 of the German Takeover Act, (ii) the
date of any cancellation of the Facilities and (iii) the date which is 180 days
after the Publication Date.
A "CHANGE IN CONTROL" shall be deemed to occur if:
(a) at any time, (i) Holdings shall fail to own, directly or
indirectly, beneficially and of record, 100% of the issued and outstanding
Equity Interests of the Term Borrower (except to the extent an initial
public offering of Equity Interests of US Holdco or New US Holdco is
effected), (ii) the Term Borrower shall fail to own directly or indirectly,
beneficially and of record, 100% of the issued and outstanding Equity
Interests of Bidco (or the survivor of any merger of Bidco with Midco
and/or the Company) or, after the Restructuring Date, of CAC, (iii) Bidco
(or the survivor of any merger of Bidco with Midco) shall fail to own
directly, beneficially and of record (x) after the consummation of the
Offer and prior to any Squeeze-Out, 75% and (y) after any Squeeze-Out, 100%
of the issued and outstanding Equity Interests (but excluding any rights to
purchase, warrants or options outstanding on the Closing Date or granted
thereafter but prior to the effectiveness of the Domination Agreement and
all shares acquired upon the exercise thereof) of the Company (unless Bidco
and the Company have been merged), in each case excluding any treasury
shares held by the Company, (iv) a majority of the seats (other than vacant
seats) on the board of directors of Holdings shall at any time be occupied
by persons who were neither (A) nominated by the board of directors of
Holdings or a Permitted Holder, (B) appointed by directors so nominated nor
(C) appointed by a Permitted Holder or (v) a "Change in Control" shall
occur under the Senior Subordinated Bridge B Loan Agreement, the Senior
Subordinated Bridge C Loan Agreement, the Senior Subordinated Note
Indenture or under any Permitted Senior Subordinated Debt Securities;
(b) at any time prior to an initial public offering of Equity
Interests of Holdings, US Holdco or New US Holdco, any combination of
Permitted Holders shall fail to own beneficially (within the meaning of
Rule 13d-5 of the Exchange Act as in effect on the Closing Date), directly
or indirectly, in the aggregate Equity Interests representing at least 51%
of (i) the aggregate ordinary voting power represented by the issued and
outstanding Equity Interests of Holdings or US Holdco, as the case may be,
or (ii) the common economic interest represented by the issued and
outstanding Equity Interests of Holdings or US Holdco, as the case may be;
or
-10-
(c) at any time from and after an initial public offering of
Equity Interests of Holdings, US Holdco or New US Holdco, any person or
group (within the meaning of Rule 13d-5 of the Exchange Act as in effect on
the Closing Date), other than any combination of the Permitted Holders,
shall own beneficially (as defined above), directly or indirectly, in the
aggregate Equity Interests representing 35% or more of the aggregate
ordinary voting power represented by the issued and outstanding Equity
Interests of Holdings or US Holdco, as the case may be, and the Permitted
Holders own beneficially (as defined above), directly or indirectly, a
smaller percentage of such ordinary voting power at such time than the
Equity Interests owned by such other person or group.
"CHANGE IN LAW" shall mean (a) the adoption of any law, rule or
regulation after the Closing Date, (b) any change in law, rule or regulation or
in the official interpretation or application thereof by any Governmental
Authority after the Closing Date or (c) compliance by any Lender or Issuing Bank
(or, for purposes of Section 2.15(b), by any lending office of such Lender or by
such Lender's or Issuing Bank's holding company, if any) with any written
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the Closing Date.
"CHARGES" shall have the meaning assigned to such term in Section
9.09.
"CL AVAILABILITY PERIOD" shall mean the period from and including the
Closing Date to but excluding the Revolving Facility Maturity Date and in the
case of each CL Loan, CL Credit Event and CL Letter of Credit, the date of
termination of the Total Credit-Linked Commitment.
"CL BORROWER" shall mean (x) prior to the Restructuring Date, CAC and
(y) on and after the Restructuring either CAC or the Term Borrower (whomsoever
of the two is designated in the applicable Borrowing Request or Request to
Issue).
"CL BORROWING" shall mean a Borrowing comprised of CL Loans.
"CL CREDIT EVENT" shall mean and include (i) the incurrence of a CL
Loan and (ii) the issuance of a CL Letter of Credit.
"CL EXPOSURE" shall mean at any time the sum of (a) the aggregate
outstanding principal amount of all CL Loans at such time plus (b) the CL L/C
Exposure of all CL Lenders at such time. The CL Exposure of any CL Lender at any
time shall mean its CL Percentage of the aggregate CL Exposure at such time.
"CL FACILITY" shall mean the Credit-Linked Commitments and the CL
Loans made hereunder and the CL Letters of Credit issued hereunder.
"CL FACILITY FEE" shall have the meaning provided in Section 2.12(b).
"CL INTEREST PAYMENT DATE" shall mean (i) in the case of the first CL
Interest Payment Date, the last day of the third Interest Period applicable to
Credit-Linked Deposits occurring after the Closing Date and (ii) the last day of
every third Interest Period applicable to Credit-Linked Deposits to occur
thereafter.
-11-
"CL L/C EXPOSURE" shall mean at any time the sum of (a) the aggregate
undrawn amount of all CL Letters of Credit denominated in Dollars outstanding at
such time, (b) the Dollar Equivalent of the aggregate undrawn amount of all CL
Letters of Credit denominated in Euros outstanding at such time, (c) the
aggregate principal amount of all Dollar L/C Disbursements made in respect of CL
Letters of Credit that have not yet been reimbursed at such time and (d) the
Dollar Equivalent of the aggregate principal amount of all Euro L/C
Disbursements made in respect of CL Letters of Credit that have not yet been
reimbursed at such time. The CL L/C Exposure of any CL Lender at any time shall
mean its CL Percentage of the aggregate CL L/C Exposure at such time.
"CL LENDER" shall mean each Lender having a Credit-Linked Commitment
(or, to the extent terminated, an outstanding Credit-Linked Deposit).
"CL LETTER OF CREDIT" shall mean each Letter of Credit designated as
such in SCHEDULE 2.05(a), in the relevant Request to Issue or as provided in
Section 2.05.
"CL LOAN" shall mean a Loan made by a CL Lender pursuant to Section
2.01(c). Each CL Loan shall be denominated in Dollars and shall be a
Eurocurrency Loan or an ABR Loan.
"CL PERCENTAGE", with respect to any CL Lender at any time, shall mean
a fraction (expressed as a percentage) the numerator of which is the
Credit-Linked Commitment of such CL Lender at such time and the denominator of
which is the Total Credit-Linked Commitment at such time, PROVIDED that if the
CL Percentage of any CL Lender is to be determined after the Total Credit-Linked
Commitment has been terminated, then the CL Percentage of such CL Lender shall
be determined immediately prior (and without giving effect) to such termination.
"CL RESERVE ACCOUNT" shall have the meaning assigned to such term in
Section 10.02(a).
"CLEAN-UP PERIOD" shall mean the 60 day period following the Closing
Date.
"CLOSING DATE" shall mean the date on which Bidco is first required to
pay the purchase price under the Offer Document following the Consummation of
the Offer.
"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.
-12-
"COLLATERAL AND GUARANTEE REQUIREMENTS" shall mean the requirements
that:
(a) as of the Closing Date, all of the Financing Documents
described in Part I of Schedule 1.01(a) shall have been executed and
delivered by the parties thereto, and all Liens created by the pledging of
securities and/or other instruments shall have been perfected (by the
pledging of such securities and/or instruments or otherwise);
(b) as of the Restructuring Date, all of the Loan Documents
described in Part II of Schedule 1.01(a) shall have been executed and
delivered by the parties thereto, and all Liens created by the pledging of
securities and/or other instruments shall have been perfected (by the
pledging of such securities and/or instruments or otherwise);
(c) in the case of any Person that is a Foreign Revolving
Borrower, the Administrative Agent shall have received, unless it has
waived such requirement for such Foreign Revolving Borrower (for reasons of
cost, legal limitations or such other matters as deemed appropriate by the
Administrative Agent), a counterpart of a Foreign Pledge Agreement by the
direct parent company of such Foreign Revolving Borrower with respect to
all of the Equity Interests owned by such parent company in such Foreign
Revolving Borrower, PROVIDED that the Equity Interests of a Foreign
Revolving Borrower shall not have to be so pledged if such pledge would
result in materially adverse tax or legal consequences to Holdings and its
Subsidiaries (as determined by Holdings in good faith);
(d) in the case of any Person that becomes a Domestic Subsidiary
Loan Party after the Closing Date and in the case of the Term Borrower on
the Restructuring Date, the Collateral Agent shall have received (i) a
Supplement to the U.S. Collateral Agreement duly executed and delivered on
behalf of such Person and (ii) if such Person owns Equity Interests of a
Foreign Subsidiary organized in Germany or Luxembourg that, as a result the
law of any such jurisdiction of organization of such Foreign Subsidiary,
cannot be pledged under local applicable law to the Collateral Agent under
the U.S. Collateral Agreement, a counterpart of an Alternate Pledge
Agreement with respect to such Equity Interests (provided that in no event
shall more than 65% of the issued and outstanding Equity Interests of any
Foreign Subsidiary be pledged to secure Obligations of Domestic Loan
Parties), duly executed and delivered on behalf of such Subsidiary;
(e) subject to Section 5.10(g) and the definition of Holdings
Agreements, all the Equity Interests that are acquired by a Loan Party
(other than Parent or a Foreign Revolving Borrower) after the Closing Date
shall be pledged pursuant to the U.S. Collateral Agreement or the Holdings
Agreements, as the case may be, or, to the extent representing Equity
Interests in a Foreign Revolving Borrower, a Foreign Pledge Agreement, as
applicable (provided that in no event shall more than 65% of the issued and
outstanding Equity Interests of any Foreign Subsidiary be pledged to secure
Obligations of Domestic Loan Parties);
(f) the Collateral Agent shall have received all certificates or
other instruments (if any) representing all Equity Interests required to be
pledged pursuant to any of
-13-
the foregoing paragraphs, together with stock powers or other instruments
of transfer with respect thereto endorsed in blank, in each case to the
extent reasonably requested by counsel to the Lenders, or such other action
shall have been taken as required under applicable law to perfect a
security interest in such Equity Interests as reasonably requested by
counsel to the Lenders;
(g) all Indebtedness of Holdings and each Subsidiary having an
aggregate principal amount that has a Dollar Equivalent in excess of $10.0
million (other than intercompany current liabilities incurred in the
ordinary course of business) that is owing to any Domestic Loan Party shall
be evidenced by a promissory note or an instrument and shall have been
pledged pursuant to the U.S. Collateral Agreement, and the Collateral Agent
shall have received all such promissory notes or instruments, together with
note powers or other instruments of transfer with respect thereto endorsed
in blank;
(h) all documents and instruments, including Uniform Commercial
Code financing statements, required by law or reasonably requested by the
Collateral Agent to be filed, registered or recorded to create the Liens
intended to be created by the Security Documents (in each case, including
any supplements thereto) and perfect such Liens to the extent required by,
and with the priority required by, the Security Documents, shall have been
filed, registered or recorded or delivered to the Collateral Agent for
filing, registration or the recording concurrently with, or promptly
following, the execution and delivery of each such Security Document;
(i) the Collateral Agent shall have received within the time
periods specified on SCHEDULE 5.14, (i) counterparts of each Mortgage to be
entered into on or after the Closing Date as set forth on SCHEDULE 5.14,
with respect to each Mortgaged Property duly executed and delivered by the
record owner of such Mortgaged Property, (ii) a policy or policies or
marked-up unconditional binder of title insurance, paid for by CAC, issued
by a nationally recognized title insurance company insuring (subject to any
survey exception for the Mortgaged Property located in Narrows, Virginia)
the Lien of each U.S. Mortgage specified on SCHEDULE 5.14 to be entered
into on or after the Closing Date as a valid first Lien on the Mortgaged
Property described therein, free of any other Liens except as permitted by
Section 6.02 and Liens arising by operation of law, together with such
endorsements, coinsurance and reinsurance as the Collateral Agent may
reasonably request, (iii) except for the Mortgaged Property located in
Narrows, Virginia, a survey of each Mortgaged Property (and all
improvements thereon) which is (1) dated (or redated) not earlier than six
months prior to the date of delivery thereof unless there shall have
occurred within six months prior to such date of delivery any exterior
construction on the site of such Mortgaged Property, in which event such
survey shall be dated (or redated) after the completion of such
construction or if such construction shall not have been completed as of
such date of delivery, not earlier than 20 days prior to such date of
delivery, (2) certified by the surveyor (in a manner reasonably acceptable
to the Administrative Agent) to the Administrative Agent, the Collateral
Agent and the title insurance company insuring the Mortgage, (3) complying
in all respects with the minimum detail requirements of the American Land
Title Association as such requirements are in effect on the date of
preparation of such survey and (4) sufficient for such title insurance
company to remove all standard survey exceptions from the title
-14-
insurance policy relating to such Mortgaged Property or otherwise
reasonably acceptable to the Collateral Agent, (iv) such legal opinions and
other documents as the Collateral Agent may reasonably request with respect
to any such Mortgage or Mortgaged Property and (v) a Real Property
Officers' Certificate substantially in the form of EXHIBIT L attached
hereto with respect to each Mortgaged Property indicated on SCHEDULE 5.14;
and
(j) each Loan Party shall have obtained all material consents and
approvals required to be obtained by it in connection with (A) the
execution, delivery and performance of all Security Documents (or
supplements thereto) to which it is a party and (B) the granting by it of
the Liens under each Security Document to which it is party.
"COMMITMENTS" shall mean (a) with respect to any Lender, such Lender's
Revolving Facility Commitment, Term Loan Commitment and Credit-Linked Commitment
and (b) with respect to any Swingline Lender, its Swingline Dollar Commitment or
Swingline Euro Commitment, as applicable.
"COMPANY" shall have the meaning assigned to such term in the second
recital of this Agreement.
"CONSOLIDATED DEBT" at any date shall mean the sum of (without
duplication) (i) all Indebtedness consisting of Capital Lease Obligations,
Indebtedness for borrowed money and Indebtedness in respect of the deferred
purchase price of property or services (and not including any indebtedness under
letters of credit (x) to the extent undrawn or (y) if drawn, to the extent
reimbursed within 10 Business Days after such drawing) of Holdings and its
Subsidiaries determined on a consolidated basis on such date plus (ii) any
Receivables Net Investment.
"CONSOLIDATED NET BANK DEBT" at any date shall mean Consolidated Net
Debt at such time less the amount of the Senior Subordinated Bridge B Loans, the
Senior Subordinated Bridge C Loans and all other Indebtedness (other than
Capital Lease Obligations) included in Consolidated Net Debt that is not secured
in whole or in part by a first priority Lien on assets of Holdings and/or the
Subsidiaries.
"CONSOLIDATED NET DEBT" at any date shall mean (A) Consolidated Debt
on such date less (B) unrestricted cash or marketable securities (determined in
accordance with US GAAP) of Holdings and its Subsidiaries on such date.
"CONSOLIDATED NET INCOME" shall mean, 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, special (to the extent
reflected as a separate line item on a consolidated income statement
prepared in accordance with US GAAP on a basis consistent with historical
practices) or non-recurring gain or loss (less all fees and expenses
relating thereto) or income or expense or charge including, without
limitation, any severance expense, and fees, expenses or charges related to
any offering of Equity Interests of Holdings, any Investment, acquisition
or Indebtedness permitted to be incurred hereunder (in each case, whether
or not successful), including all fees, expenses, charges or change in
control payments related to the Transactions (including,
-15-
without limitation, all Transaction Costs), in each case shall be excluded;
PROVIDED that, with respect to each non-recurring item, Holdings shall have
delivered to the Administrative Agent an officers' certificate specifying
and quantifying such item and stating that such item is a non-recurring
item,
(ii) any net after-tax income or loss from discontinued operations
and any net after-tax gain or loss on disposal of discontinued operations
shall be excluded,
(iii) any net after-tax gain or loss (less all fees and expenses or
charges relating thereto) attributable to business dispositions or asset
dispositions other than in the ordinary course of business (as determined
in good faith by the Board of Directors of Holdings) shall be excluded,
(iv) any net after-tax income or loss (less all fees and expenses
or charges relating thereto) attributable to the early extinguishment of
indebtedness shall be excluded,
(v) (A) the Net Income for such period of any person that is not a
subsidiary of such person, 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 in respect of equity paid in cash (or to
the extent converted into cash) to such person or a subsidiary thereof in
respect of such period, but excluding any such dividend, distribution or
payment in respect of equity that funds a JV Reinvestment, and (B) the Net
Income for such period shall include any dividend, distribution or other
payment in respect of equity in cash received from any person in excess of
the amounts included in clause (A), but excluding any such dividend,
distribution or payment that funds a JV Reinvestment,
(vi) the Net Income for such period of any subsidiary of such
person 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 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 (PROVIDED that the net loss of any such subsidiary
shall be included), provided that such Net Income shall be included to the
extent (and only to the extent) such subsidiary may (without violation of
law or binding contractual arrangements) make loans and/or advances to its
parent corporation (which corporation may in turn dividend, loan and/or
advance the proceeds of such loans or advances to its parent corporation
and so on for all parents until reaching the Term Borrower) and/or to the
Term Borrower,
(vii) Consolidated Net Income for such period shall not include the
cumulative effect of a change in accounting principles during such period,
(viii) an amount equal to the amount of Tax Distributions actually
made to the holders of capital stock of Holdings in respect of the net
taxable income allocated by such
-16-
person to such holders for such period to the extent funded by the Term
Borrower shall be included as though such amounts had been paid as income
taxes directly by such person,
(ix) any increase in amortization or depreciation or any one-time
noncash charges (such as purchased in-process research and development or
capitalized manufacturing profit in inventory) resulting from purchase
accounting in connection with the Transaction or any acquisition that is
consummated prior to or after the Closing Date shall be excluded, and
(x) accruals and reserves that are established within twelve
months after the Closing Date and that are so required to be established as
a result of the Transaction in accordance with US GAAP shall be excluded.
"CONSOLIDATED TOTAL ASSETS" shall mean, as of any date, the total
assets of Holdings and the consolidated Subsidiaries, determined in accordance
with US GAAP, as set forth on the consolidated balance sheet of Holdings as of
such date.
"CONSUMMATION OF THE OFFER" shall mean that the obligations of Bidco
to purchase shares of the Company under the Offer have become unconditional
within the Acceptance Period (as defined in the Offer Document), without any
amendment or waiver to the Offer Document not permitted by Section 6.09(c).
"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 assigned to such term in
Article IV.
"CREDIT-LINKED COMMITMENT" shall mean, for each CL Lender, the Dollar
Equivalent on the Closing Date of the amount set forth opposite such Lender's
name on SCHEDULE 2.01 directly below the column entitled "Credit-Linked
Commitment" or in the Assignment and Acceptance pursuant to which such CL Lender
shall have assumed its Credit-Linked Commitment, as applicable, as the same may
be (x) reduced from time to time pursuant to Section 2.08(d) and (y) reduced or
increased from time to time as a result of assignments by or to such Lender
pursuant to Section 9.04.
"CREDIT-LINKED DEPOSIT" shall mean, as to each CL Lender, the cash
deposit made by such CL Lender pursuant to Section 2.02(B)(a), as such deposit
may be (x) reduced from time to time pursuant to the terms of this Agreement and
(y) reduced or increased from time to time pursuant to assignments by or to such
CL Lender pursuant to Section 9.04(b). The initial amount of each CL Lender's
Credit-Linked Deposit shall be equal to the amount of its Credit-Linked
Commitment on the Closing Date or on the date that such Person becomes a CL
Lender pursuant to Section 9.04(b).
"CREDIT-LINKED DEPOSIT ACCOUNT" shall mean the account of, and
established by, the Deposit Bank under its sole and exclusive control and
maintained at the office of the Deposit
-17-
Bank, and designated as the "Celanese Credit-Linked Deposit Account" that shall
be used solely for the purposes set forth in Section 2.05(e).
"CREDIT-LINKED DEPOSIT COST AMOUNT" shall mean, at any time, an amount
(expressed in basis points) determined by the Deposit Bank in consultation with
the Term Borrower based on the term on which the Credit-Linked Deposits are
invested from time to time and representing the Deposit Bank's administrative
cost for investing the Credit-Linked Deposits and any reserve costs attributable
thereto.
"CUMULATIVE RETAINED EXCESS CASH FLOW AMOUNT" shall mean, at any date,
an amount, not less than zero, determined on a cumulative basis equal to the
amount of Excess Cash Flow for all Excess Cash Flow Periods ending after the
Closing Date that 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 2.11(d), will not on such date of required prepayment be) required to be
applied in accordance with Section 2.11(d).
"CURE AMOUNT" shall have the meaning assigned to such term in Section
7.02.
"CURE RIGHT" shall have the meaning assigned to such term in Section
7.02.
"CURRENT ASSETS" shall mean, with respect to Holdings and the
Subsidiaries on a consolidated basis at any date of determination, the sum of
(a) all assets (other than cash and Permitted Investments or other cash
equivalents) that would, in accordance with US GAAP, be classified on a
consolidated balance sheet of Holdings and the Subsidiaries as current assets at
such date of determination, other than amounts related to current or deferred
Taxes based on income or profits and (b) in the event that a Permitted
Receivables Financing is accounted for off-balance sheet, (x) gross accounts
receivable comprising part of the Receivables Assets subject to such Permitted
Receivables Financing less (y) collections against the amounts sold pursuant to
clause (x).
"CURRENT LIABILITIES" shall mean, with respect to Holdings and the
Subsidiaries on a consolidated basis at any date of determination, all
liabilities that would, in accordance with US GAAP, be classified on a
consolidated balance sheet of Holdings and the Subsidiaries as current
liabilities at such date of determination, other than (a) the current portion of
any debt or Capital Lease Obligations, (b) accruals of Interest Expense
(excluding Interest Expense that is due and unpaid), (c) accruals for current or
deferred Taxes based on income, profits or capital, (d) accruals, if any, of
transaction costs resulting from the Transactions, (e) accruals of any costs or
expenses related to (i) severance or termination of employees prior to the
Closing Date or (ii) bonuses, pension and other post-retirement benefit
obligations, and (f) accruals for add-backs to EBITDA included in clauses
(a)(iv) through (a)(ix) of the definition of such term.
"DBNY" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"DEBT SERVICE" shall mean, with respect to Holdings and the
Subsidiaries on a consolidated basis for any period, Cash Interest Expense for
such period plus scheduled principal amortization of Consolidated Debt for such
period.
-18-
"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.
"DELISTING" shall mean the delisting of the shares of the Company from
the
New York Stock Exchange.
"DEPOSIT BANK" shall mean Deutsche Bank AG, Cayman Islands Branch.
"DESIGNATED ACQUISITION" shall mean the acquisition of all or
substantially all of the Equity Interests or all or substantially all of the
assets of a certain Person (or of a division or line of business of a Person),
with such Person (or division or line of business) identified to, and found
acceptable by, the Initial Lenders prior to the Closing Date, for cash and/or
the transfer of not in excess of $35,000,000 of existing properties (as valued
for the purposes of the Designated Acquisition) of Term Borrower and the
Subsidiaries, where (a) the business acquired is of the same nature as that
engaged in by the Term Borrower and its subsidiaries at such time or a
reasonable extension thereof or of practical use in the conduct of their
then-existing business and (b) an amount not less than 25% of the total purchase
price (including any portion thereof satisfied by the transfer of assets) will
be funded, directly or indirectly, by way of an equity contribution by the
Permitted Investors to Holdings (followed by a corresponding equity contribution
to the Term Borrower).
"DOCUMENTATION AGENT" shall mean each of Bank of America, N.A.,
General Electric Capital Corporation and ABN AMRO Bank N.V.
"DOLLAR EQUIVALENT" shall mean, on any date of determination (a) with
respect to any amount in Dollars, such amount, and (b) with respect to any
amount in Euros, the equivalent in Dollars of such amount, determined by the
Administrative Agent pursuant to Section 1.03(b) using the Exchange Rate with
respect to Euros at the time in effect under the provisions of such Section.
"DOLLAR LETTER OF CREDIT" shall mean a Letter of Credit denominated in
Dollars.
"DOLLARS" or "$" shall mean lawful money of the United States of
America.
"DOMESTIC LOAN PARTIES" shall mean at any time (i) each Domestic
Subsidiary Loan Party and (ii) on and after the Restructuring Date, US Holdco.
"DOMESTIC SUBSIDIARY" of any Person shall mean a subsidiary of such
Person that is not (a) a Foreign Subsidiary, (b) after the Restructuring Date, a
subsidiary of a Foreign Subsidiary or (c) listed on SCHEDULE 1.01(h).
"DOMESTIC SUBSIDIARY LOAN PARTY" shall mean CAC and each CAC Guarantor
Subsidiary plus any other subsidiary of the Term Borrower (other than any
Special Purpose Receivables Subsidiary and CAC and any subsidiary of CAC) that
first becomes a Domestic Subsidiary after the Closing Date (with such exceptions
as are satisfactory to the Administrative
-19-
Agent), it being agreed that if, at any time on or after the Restructuring Date,
CAC is not a direct wholly-owned subsidiary of US Holdco, each entity that is
owned, directly or indirectly, in whole or in part, by US Holdco and that owns
directly or indirectly any equity interest in CAC shall be required to be a
party to the U.S. Collateral Agreement.
"DOMESTIC SWINGLINE BORROWER" shall mean each Revolving Borrower that
is not a Foreign Subsidiary (or, prior to the Restructuring Date, Parent) that
has been designated to the Administrative Agent in writing by the Term Borrower
as a Domestic Swingline Borrower, PROVIDED that (x) its Maximum Credit Limit
will remain unchanged and (y) there shall not be more than two Domestic
Swingline Borrowers at any time and PROVIDED, FURTHER, that the Term Borrower
may revoke any such designation as to any such person at a time when no
Swingline Loans are outstanding to such person.
"DOMINATION AGREEMENT" shall mean a domination and profit and loss
transfer agreement to be entered into by LP GmbH, Midco or Bidco, as the case
may be, and the Company in a form approved by the Administrative Agent, such
approval not to be unreasonably withheld or delayed.
"EARLY TERMINATION DATE" shall mean the first date after the date on
which the Offer Document has been submitted to BAFin on which (i) the Offer
lapses pursuant to its terms without having been consummated or (ii) the date
the Certain Funds Period ends, if the Offer has not theretofore become
unconditional.
"EBITDA" shall mean, with respect to Holdings and the Subsidiaries on
a consolidated basis for any period, the Consolidated Net Income of Holdings and
the Subsidiaries for such period PLUS (a) the sum of (in each case without
duplication and to the extent the respective amounts described in subclauses (i)
through (xi) of this clause (a) reduced such Consolidated Net Income for the
respective period for which EBITDA is being determined):
(i) provision for Taxes based on income, profits or capital of
Holdings and the Subsidiaries for such period, including, without
limitation, state, franchise and similar taxes (such as the Texas franchise
tax and Michigan single business tax) (including any Tax Distribution taken
into account in calculating Consolidated Net Income),
(ii) Interest Expense of Holdings and the Subsidiaries for such
period (net of interest income for such period of Holdings and its
Subsidiaries other than the cash interest income of the Captive Insurance
Subsidiaries),
(iii) depreciation and amortization expenses of Holdings and the
Subsidiaries for such period,
(iv) restructuring charges; PROVIDED that with respect to each such
restructuring charge, Holdings shall have delivered to the Administrative
Agent an officer's certificate specifying and quantifying such charge and
stating that such charge is a restructuring charge,
(v) any other noncash charges (but excluding any such charge which
requires an accrual of, or a cash reserve for, anticipated cash charges for
any future period);
-20-
PROVIDED that, for purposes of this subclause (v) of this clause (a), any
noncash charges or losses shall be treated as cash charges or losses in any
subsequent period during which cash disbursements attributable thereto are
made,
(vi) the minority interest expense consisting of the subsidiary
income attributable to minority equity interests of third parties in any
non-Wholly Owned Subsidiary in such period or any prior period, except to
the extent of dividends declared or paid on Equity Interests held by third
parties,
(vii) the noncash portion of "straight-line" rent expense,
(viii) the amount of any expense to the extent a corresponding amount
is received in cash by any Loan Party from a Person other than Holdings or
any Subsidiary of Holdings under any agreement providing for reimbursement
of any such expense provided such reimbursement payment has not been
included in determining EBITDA (it being understood that if the amounts
received in cash under any such agreement in any period exceed the amount
of expense in respect of such period, such excess amounts received may be
carried forward and applied against expense in future periods),
(ix) turnaround costs and expenses to the extent treated as, and
included in computing for the period expended, Capital Expenditures,
(x) the amount of management, consulting, monitoring and advisory
fees and related expenses paid to Blackstone or any other Permitted
Investor (or any accruals related to such fees and related expenses) during
such period; PROVIDED that such amount shall not exceed in any four quarter
period the greater of (x) $5.0 million and (y) 2% of EBITDA of Holdings and
the Subsidiaries (assuming for purposes of this clause (y) that the amount
to be added to Consolidated Net Income under this clause (x) is $5.0
million), and
(xi) except for purposes of calculating Excess Cash Flow to the
extent consisting of any net cash loss, any net losses resulting from
currency Swap Agreements entered into in the ordinary course of business
relating to intercompany loans among or between Holdings and/or any of its
Subsidiaries to the extent that the nominal amount of the related Swap
Agreement does not exceed the principal amount of the related intercompany
loan;
MINUS (b) the sum of (in each case without duplication and to the extent the
respective amounts described in subclauses (i) to (iv) of this clause (b)
increased such Consolidated Net Income for the respective period for which
EBITDA is being determined):
(i) the minority interest income consisting of subsidiary losses
attributable to the minority equity interests of third parties in any
non-Wholly Owned Subsidiary,
(ii) noncash items increasing Consolidated Net Income of Holdings
and the Subsidiaries for such period (but excluding any such items (A) in
respect of which cash was received in a prior period or will be received in
a future period or (B) which
-21-
represent the reversal of any accrual of, or cash reserve for, anticipated
cash charges in any prior period),
(iii) the cash portion of "straight-line" rent expense which exceeds
the amount expensed in respect of such rent expense, and
(iv) except for purposes of calculating Excess Cash Flow to the
extent consisting of a net cash gain, any net gains resulting from currency
Swap Agreements entered into in the ordinary course of business relating to
intercompany loans among or between Holdings and/or any of its Subsidiaries
to the extent that the nominal amount of the related Swap Agreement does
not exceed the principal amount of the related intercompany loan.
"EMU LEGISLATION" shall mean the legislative measures of the European
Union for the introduction of, changeover to or operation of the Euro in one or
more member states of the European Union.
"ENVIRONMENT" shall mean ambient and indoor air, surface water and
groundwater (including potable water, navigable water and wetlands), the land
surface or subsurface strata, natural resources such as flora and fauna, the
workplace or as otherwise defined in any Environmental Law.
"ENVIRONMENTAL LAWS" shall mean all applicable laws (including common
law), rules, regulations, codes, ordinances, orders, decrees, judgments,
injunctions, or binding agreements issued, promulgated or entered into by any
Governmental Authority, relating in any way to the protection of the
Environment, preservation or reclamation of natural resources, the generation,
management, Release or threatened Release of, or exposure to, any Hazardous
Material or to health and safety matters (to the extent relating to the
Environment or exposure to Hazardous Materials).
"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, convertible preferred equity certificate (whether
or not equity under local law), any limited or general partnership interest and
any limited liability company membership interest.
"EQUITY PERCENTAGE" shall mean 50%.
"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 Holdings, the Term Borrower or a Subsidiary,
is treated as a single employer under Section 414(b) or (c) of the Code, or,
solely for purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.
"ERISA EVENT" shall mean (a) any Reportable Event; (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the
-22-
Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to
Section 412(d) of the Code or Section 303(d) of ERISA of an application for a
waiver of the minimum funding standard with respect to any Plan, the failure to
make by its due date a required installment under Section 412(m) of the Code
with respect to any Plan or the failure to make any required contribution to a
Multiemployer Plan; (d) the incurrence by Holdings, the Term Borrower, a
Subsidiary or any ERISA Affiliate of any liability under Title IV of ERISA with
respect to the termination of any Plan; (e) the receipt by Holdings, the Term
Borrower, a Subsidiary or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or to
appoint a trustee to administer any Plan under Section 4042 of ERISA; (f) the
incurrence by Holdings, the Term Borrower, a Subsidiary or any ERISA Affiliate
of any liability with respect to the withdrawal or partial withdrawal from any
Plan or Multiemployer Plan; or (g) the receipt by Holdings, the Term Borrower, a
Subsidiary or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from Holdings, the Term Borrower, a Subsidiary or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA.
"EURO" or "EURO " shall mean the single currency of the European Union
as constituted by the treaty establishing the European Community being the
Treaty of Rome, as amended from time to time and as referred to in the EMU
Legislation.
"EURO EQUIVALENT" shall mean, on any date of determination, (a) with
respect to any amount in Euros, such amount and (b) with respect to any amount
in Dollars, the equivalent in Euros of such amount or determined by the
Administrative Agent pursuant to Section 1.03(b) using the Exchange Rate with
respect to such currency of the time in effect under the provisions of such
Section.
"EURO LETTER OF CREDIT" shall mean a Letter of Credit denominated in
Euros.
"EUROCURRENCY BORROWING" shall mean a Borrowing comprised of
Eurocurrency Loans.
"EUROCURRENCY CL LOAN" shall mean any CL Loan bearing interest at a
rate determined by reference to the Adjusted LIBO Rate in accordance with
Article II.
"EUROCURRENCY LOAN" shall mean any Eurocurrency Term Loan,
Eurocurrency Revolving Loan or Eurocurrency CL Loan.
"EUROCURRENCY REVOLVING BORROWING" shall mean a Borrowing comprised of
Eurocurrency Revolving Loans.
"EUROCURRENCY REVOLVING LOAN" shall mean any Revolving Facility Loan
bearing interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"EUROCURRENCY 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.
-23-
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Section 7.01.
"EXCESS CASH FLOW" shall mean, with respect to Holdings and the
Subsidiaries on a consolidated basis for any Excess Cash Flow Period, EBITDA of
Holdings and the Subsidiaries on a consolidated basis for such Excess Cash Flow
Period, MINUS, without duplication,
(a) Debt Service for such Excess Cash Flow Period,
(b) (i) any voluntary prepayments of Term Loans during such Excess
Cash Flow Period, (ii) any permanent voluntary reductions during such
Excess Cash Flow Period of Revolving Facility Commitments to the extent
that an equal amount of Revolving Facility Loans was simultaneously repaid
and (iii) any voluntary prepayment permitted hereunder of term Indebtedness
during such Excess Cash Flow Period to the extent not financed, or intended
to be financed, using the proceeds of the incurrence of Indebtedness, so
long as the amount of such prepayment is not already reflected in Debt
Service,
(c) (i) Capital Expenditures by Holdings and the 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 Holdings or any Subsidiary shall,
during such Excess Cash Flow Period, become legally obligated to make but
that are not made during such Excess Cash Flow Period, PROVIDED that
Holdings shall deliver a certificate to the Administrative Agent not later
than 90 days after the end of such Excess Cash Flow Period, signed by a
Responsible Officer of Holdings 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 Holdings and its Subsidiaries on a
consolidated basis during such Excess Cash Flow Period or that will be paid
within six months after the close of such Excess Cash Flow Period (PROVIDED
that any amount so deducted that 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 the Foreign Subsidiaries,
(f) an amount equal to any increase in Working Capital of Holdings
and its Subsidiaries for such Excess Cash Flow Period,
(g) cash expenditures made in respect of Swap Agreements during
such Excess Cash Flow Period, to the extent not reflected in the
computation of EBITDA or Interest Expense,
-24-
(h) permitted dividends or distributions or repurchases of its
Equity Interests paid in cash by Holdings during such Excess Cash Flow
Period and permitted dividends paid by any Subsidiary to any person other
than Holdings, the Term Borrower or any of the Subsidiaries during such
Excess Cash Flow Period, in each case in accordance with Section 6.06,
(i) amounts paid in cash during such Excess Cash Flow Period on
account of (x) items that were accounted for as noncash reductions of Net
Income in determining Consolidated Net Income or as non-cash reductions of
Consolidated Net Income in determining EBITDA of Holdings and its
Subsidiaries in a prior Excess Cash Flow Period, (y) reserves or accruals
established in purchase accounting and (z) any other long-term reserves
existing on the Closing Date as reflected in the PRO FORMA balance sheet
referred to in Section 3.05(b),
(j) to the extent not deducted in the computation of Net Proceeds
in respect of any asset disposition or condemnation giving rise thereto,
the amount of any mandatory prepayment of Indebtedness (other than
Indebtedness created hereunder or under any other Loan Document), together
with any interest, premium or penalties required to be paid (and actually
paid) in connection therewith,
(k) the amount related to items that were added to or not deducted
from Net Income in calculating Consolidated Net Income or were added to or
not deducted from Consolidated Net Income in calculating EBITDA to the
extent such items represented a cash payment (which had not reduced Excess
Cash Flow upon the accrual thereof in a prior Excess Cash Flow Period), or
an accrual for a cash payment, by Holdings and its Subsidiaries or did not
represent cash received by Holdings and its Subsidiaries, in each case on a
consolidated basis during such Excess Cash Flow Period,
(l) the principal amounts (if any) required to be paid during such
Excess Cash Period on outstanding Senior Subordinated Bridge B Loans not in
excess of the amounts specified therefor in Schedule 2.07(g) to the Senior
Subordinated Bridge B Loan Agreement, as in effect on the Closing Date,
and/or on outstanding Senior Subordinated Bridge C Loans not in excess of
the amounts specified therefor in Schedule 2.07(g) of the Senior
Subordinated Bridge C Loan Agreement, as in effect on the Closing Date,
(m) Tax 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 (as reasonably determined in good faith by
Holdings) to the extent, in each case, funded by the Term Borrower,
PROVIDED that to the extent such Tax Distributions are not actually paid
within such six month period such amounts shall be added to Excess Cash
Flow the next succeeding Excess Cash Flow Period, and
(n) any advance cash payments during such Excess Cash Flow Period
for the purchase of raw materials to the extent not recorded as a Current
Asset and to the extent that any such advance cash payment did not
otherwise reduce EBITDA for such Excess Cash Flow Period,
-25-
PLUS, without duplication,
(a) an amount equal to any decrease in Working Capital for such
Excess Cash Flow Period,
(b) 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),
(c) all amounts referred to in clause (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 Facility 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 from Excess Cash Flow above,
(d) to the extent any permitted Capital Expenditures and the
corresponding delivery of equipment referred to in clause (d) above do not
occur in the Excess Cash Flow Period of Holdings specified in the
certificate of Holdings provided pursuant to clause (d) above, the amount
of such Capital Expenditures that were not so made in the Excess Cash Flow
Period of Holdings specified in such certificates,
(e) cash payments received in respect of Swap Agreements during
such Excess Cash Flow Period to the extent (i) not included in the
computation of EBITDA or (ii) such payments do not reduce Cash Interest
Expense,
(f) any extraordinary or nonrecurring gain realized in cash during
such Excess Cash Flow Period (except to the extent such gain consists of
Net Proceeds subject to Section 2.11(c)),
(g) to the extent deducted in the computation of EBITDA, cash
interest income,
(h) the amount related to items that were deducted from or not
added to Net Income in connection with calculating Consolidated Net Income
or were deducted from or not added to Consolidated Net Income in
calculating EBITDA to the extent either (x) such items represented cash
received by Holdings or any Subsidiary or (y) does not represent cash paid
by Holdings or any Subsidiary, in each case on a consolidated basis during
such Excess Cash Flow Period, and
(i) any expense which reduces EBITDA in such Excess Cash Flow
Period in respect of an advance cash payment made for raw materials in a
previous Excess Cash
-26-
Flow Period to the extent that any such advance cash payment reduced Excess
Cash Flow in such previous Excess Cash Flow Period.
"EXCESS CASH FLOW PERIOD" shall mean (i) the period taken as one
accounting period beginning on the day following the Closing Date and ending on
December 31, 2004, and (ii) each fiscal year of Holdings ended thereafter.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE RATE" shall mean on any day, for purposes of determining the
Dollar Equivalent or Euro Equivalent of any other currency, the rate at which
such other currency may be exchanged into Dollars or Euros (as applicable), as
set forth in the Wall Street Journal published on such date for such currency
provided that the Exchange Rate for determining the Dollar Equivalent on the
Closing Date of a Euro amount shall be 1.21523. In the event that such rate does
not appear in such copy of the Wall Street Journal, the Exchange Rate shall be
determined by reference to such other publicly available service for displaying
exchange rates as may be agreed upon by the Administrative Agent and the Term
Borrower, or, in the absence of such an agreement, such Exchange Rate shall
instead be the arithmetic average of the spot rates of exchange of the
Administrative Agent in the market where its foreign currency exchange
operations in respect of such currency are then being conducted, at or about
10:00 a.m., Local Time, on such date for the purchase of Dollars or Euros (as
applicable) for delivery two Business Days later; PROVIDED that if at the time
of any such determination, for any reason, no such spot rate is being quoted,
the Administrative Agent may, in consultation with the Term Borrower, use any
reasonable method it deems appropriate to determine such rate, and such
determination shall be prima facie evidence thereof.
"EXCLUDED EQUITY ISSUANCES" shall mean (i) the issuance of Equity
Interests by Holdings to Blackstone or any other Permitted Investor, (ii) the
issuance of Equity Interests by Holdings the proceeds of which are used to fund
Investments permitted by Section 6.04, (iii) Equity Interests issued by Holdings
(x) as compensation to employees of Holdings or any of its Subsidiaries or (y)
to members of management of Holdings or any Subsidiary within one year of the
Closing Date, in each case in the ordinary course of business and (iv) Permitted
Cure Securities.
"EXCLUDED INDEBTEDNESS" shall mean all Indebtedness permitted to be
incurred under Section 6.01 (other than Sections 6.01(o) and (s)).
"EXCLUDED TAXES" shall mean, with respect to the Administrative Agent,
any Lender, any Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of a Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the jurisdiction under the
laws of which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable lending office is
located, (b) any branch profits tax or any similar tax that is imposed by any
jurisdiction described in clause (a) above and (c) in the case of a Lender
(other than an assignee pursuant to a request by a Borrower under Section
2.19(b)), any withholding tax imposed by the United States (other than a
withholding tax levied upon any amounts payable to such Lender in respect of any
interest in any Loan acquired by such Lender pursuant to Section 10.01) that is
in effect and
-27-
would apply to amounts payable hereunder to such Lender at the time such Lender
becomes a party to this Agreement (or designates a new lending office) or is
attributable to such Lender's failure to comply with Section 2.17(e) with
respect to such Loans except to the extent that such Lender (or its assignor, if
any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from a Borrower with respect to any
withholding tax pursuant to Section 2.17(a).
"EXISTING LETTER OF CREDIT" shall mean each letter of credit
previously issued for the account of the Company or any of its subsidiaries by a
Person that is on the Closing Date, or that becomes prior to June 30, 2004, an
L/C Lender (or an Affiliate of such Person) to the extent such letter of credit
(a) was outstanding on the Closing Date and (b) is listed on SCHEDULE 2.05(a).
"FACILITY" shall mean the respective facility and commitments utilized
in making Loans and credit extensions hereunder, it being understood that as of
the date of this Agreement there are three Facilities, I.E., the Term Loan
Facility, the Revolving Facility and the CL Facility.
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, the weighted
average (rounded upward, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of
New York, or, if such rate is not so
published for any day which is a Business Day, the average (rounded upward, if
necessary, to the next 1/100 of 1%) 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.
"FEE LETTER" shall mean that certain Fee Letter dated December 15,
2003 by and among the Parent, the Global Coordinator, the Administrative Agent
and the Joint Lead Arrangers.
"FEES" shall mean the RF Commitment Fees, the L/C Participation Fees,
the CL Facility Fee, the TL Commitment Fees, the Issuing 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" shall mean the covenants of Holdings
set forth in Sections 6.11, 6.12 and 6.13.
"FINANCING DOCUMENTS" shall mean the Loan Documents plus, to the
extent not included in the Loan Documents, the Bidco Pledge.
"FLOW THROUGH ENTITY" shall mean an entity that is treated as a
partnership not taxable as a corporation, a grantor trust or a disregarded
entity for United States federal income tax purposes or subject to treatment on
a comparable basis for purposes of state, local or foreign tax law.
-28-
"FOREIGN LENDER" shall mean any Lender that is organized under the
laws of a jurisdiction other than the United States of America. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"FOREIGN PLEDGE AGREEMENT" shall mean a pledge agreement with respect
to the Pledged Collateral that constitutes Equity Interests of a Foreign
Revolving Borrower, in form and substance reasonably satisfactory to the
Collateral Agent, as amended, supplemented or otherwise modified from time to
time, that will secure Obligations of such Foreign Revolving Borrower.
"FOREIGN REVOLVING BORROWER" shall mean each Revolving Borrower that
is a Foreign Subsidiary.
"FOREIGN SUBSIDIARY" shall mean any Subsidiary that is incorporated or
organized under the laws of any jurisdiction other than the United States of
America, any State thereof or the District of Columbia.
"FOREIGN SUBSIDIARY LOAN PARTY" shall mean at any time each Foreign
Subsidiary that is a Revolving Borrower and the Foreign Subsidiary (if any) that
is the direct parent thereof to the extent it has pledged the stock of such
Revolving Borrower to secure its Revolving Facility Loans.
"FOREIGN SWINGLINE BORROWER" shall mean each Revolving Borrower that
is a Foreign Subsidiary (or Parent prior to the Restructuring Date) that has
been designated to the Administrative Agent in writing by the Term Borrower as a
Foreign Swingline Borrower, PROVIDED that (x) its Maximum Credit Limit will
remain unchanged and (y) there shall not be more than two Foreign Swingline
Borrowers at any time and, PROVIDED, FURTHER, that the Term Borrower may revoke
any such designation as to any person at a time when no Swingline Loans are
outstanding to such person.
"GLOBAL COORDINATOR" shall have the meaning assigned to such term in
the introductory paragraph of this Agreement.
"GOVERNMENTAL AUTHORITY" shall mean any federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
or legislative body.
"GP GmbH" shall have the meaning assigned to such term in the first
recital to this Agreement.
"GUARANTEE" of or by any person (the "GUARANTOR") shall mean (a) any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation (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
-29-
payment of such Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (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 other obligation, (iv) entered into for the purpose of assuring
in any other manner the holders of such Indebtedness or other obligation of the
payment thereof or to protect such holders against loss in respect thereof (in
whole or in part) or (v) as an account party in respect of any letter of credit
or letter of guaranty issued to support such Indebtedness or other obligation,
or (b) any Lien on any assets of the guarantor securing any Indebtedness (or any
existing right, contingent or otherwise, of the holder of Indebtedness to be
secured by such a Lien) of any other person, whether or not such Indebtedness or
other obligation is assumed by the guarantor; 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 reasonable indemnity
obligations.
"HAZARDOUS MATERIALS" shall mean all pollutants, contaminants, wastes,
chemicals, materials, substances and constituents, including, without
limitation, explosive or radioactive substances or petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls or radon gas, of any nature subject to regulation or which could
reasonably be expected to give rise to liability under any Environmental Law.
"HC ACTIVITIES" shall mean such activities to be undertaken by (i)
Bidco, Midco or LP GmbH as reasonably determined by Holdings to be required to
enable Bidco, Midco or LP GmbH, as the case may be, to obtain and continue
holding company status under German tax law and (ii) Bidco as reasonably
determined by Holdings to be required to enable Bidco to satisfy the
requirements of German tax law regarding the head of a fiscal unity.
"HC CORPORATION" shall mean, with respect to Bidco, Midco or LP GmbH,
a subsidiary thereof acquired through HC Investments.
"HC INVESTMENTS" shall mean Investments (including through transfer
from another Subsidiary) made by (i) Bidco, Midco or LP GmbH in acquiring two
corporate subsidiaries (or in the case of Bidco a second corporate subsidiary)
and (ii) Bidco in a "trade business," provided such Investments shall be at the
minimum amount reasonably determined by Holdings to permit (x) Bidco, Midco or
LP GmbH, as the case may be, to obtain and continue holding company status under
German tax law or (y) Bidco to satisfy the requirements of German tax law fiscal
unity requirements.
"HOLDCO EQUITY FINANCING" shall each have the meaning assigned to such
term in the third recital of this Agreement.
"HOLDINGS" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"HOLDINGS AGREEMENTS" shall mean (i) the Guarantee and Pledge
Agreement, as amended, supplemented or otherwise modified from time to time,
substantially in the form of EXHIBIT F between Holdings, each Intermediate
Holdco and the Collateral Agent pursuant to
-30-
which Holdings and each Intermediate Holdco guarantees the Obligations and,
except as provided below, pledges all Equity Interests it owns (such pledge to
be subject to any pledge referred to in clause (ii) below) to secure such
guarantee, and (ii) one or more Pledge Agreements under Luxembourg law,
reasonably acceptable to the Administrative Agent, as amended, supplemented or
otherwise modified from time to time, pursuant to which Holdings and/or each
Intermediate Holdco pledges the Equity Interests in Parent to secure its
guarantee described in clause (i); PROVIDED, HOWEVER, the unlimited shares of
Parent will not be required to be pledged as provided above (which unlimited
shares will not exceed 0.50% of the outstanding Equity Interests of Parent).
"INCREASED AMOUNT DATE" shall have the meaning assigned to such term
in Section 2.22.
"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 and reimbursement obligations in
respect of trade letters of credit obtained in the ordinary course of business
with expiration dates not in excess of 365 days from the date of issuance (x) to
the extent undrawn or (y) if drawn, to the extent repaid in full within 10
Business Days of any such drawing), (e) all Guarantees by such person of
Indebtedness of others, (f) all Capital Lease Obligations of such person, (g)
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 Swap Agreements, (h) except as provided in clause (d)
above, the principal component of all obligations, contingent or otherwise, of
such person as an account party in respect of letters of credit and (i) the
principal component of all obligations of such person in respect of bankers'
acceptances. The Indebtedness of any person (x) shall include the Indebtedness
of any partnership in which such person is a general partner, other than to the
extent that the instrument or agreement evidencing such Indebtedness expressly
limits the liability of such person in respect thereof, and (y) shall exclude
any Indebtedness of a third party that is not an Affiliate of Holdings or any of
its Subsidiaries and that is attributable to supply or lease arrangements as a
result of consolidation under FIN 46 or attributable to take-or-pay contracts
that are accounted for in a manner similar to a capital lease under EITF 01-8 in
either case so long as (i) such supply or lease arrangements or such take-or-pay
contracts are entered into in the ordinary course of business, (ii) the board of
directors of Holdings has approved any such supply or lease arrangement or any
such take-or-pay contract and (iii) notwithstanding anything to the contrary
contained in the definition of EBITDA, the related expense under any such supply
or lease arrangement or under any such take-or-pay contract is treated as an
operating expense that reduces EBITDA.
"INDEMNIFIED TAXES" shall mean all Taxes other than Excluded Taxes.
"INDEMNITEE" shall have the meaning assigned to such term in
Section 9.05(b).
-31-
"INFORMATION MEMORANDUM" shall mean the Confidential Information
Memorandum to be provided to prospective Lenders, as modified or supplemented.
"INITIAL EQUITY CONTRIBUTIONS" shall mean investments by Holdings, the
Parent, LP GmbH and Midco in the Equity Interests of the Parent, LP GmbH, Midco
and Bidco, respectively and the Investment by GP GmbH in the general partnership
interests of Midco and Bidco, as described in the recitals to this Agreement.
"INITIAL INTERCOMPANY LOANS" shall mean the CAC Loans, the Bidco Loan
and the other intercompany loans referred to in the eighth recital to this
Agreement and any additional intercompany loans to LP GmbH, Midco and/or Bidco
made with the proceeds of the Senior Subordinated Bridge C Loans.
"INITIAL LENDERS" shall mean Xxxxxx Xxxxxxx and DBNY.
"INSTALLMENT DATE" shall have the meaning assigned to such term in
Section 2.10(a).
"INTERCREDITOR AGREEMENT" shall mean an intercreditor agreement
entered into in connection with a Permitted Receivables Financing in form and
substance reasonably satisfactory to the Administrative Agent.
"INTEREST COVERAGE RATIO" shall have the meaning assigned to such term
in Section 6.11.
"INTEREST ELECTION REQUEST" shall mean a request by a Borrower to
convert or continue a Term Borrowing, Revolving Borrowing or CL Borrowing in
accordance with Section 2.07.
"INTEREST EXPENSE" shall mean, with respect to any person for any
period, the sum of (a) gross interest expense of such person 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 Swap Agreements)
payable in connection with the incurrence of Indebtedness to the extent included
in interest expense, (iii) the portion of any payments or accruals with respect
to Capital Lease Obligations allocable to interest expense and (iv) commissions,
discounts, yield and other fees and charges incurred in connection with any
Permitted Receivables Financing which are payable to any person other than
Holdings, the Term Borrower or a Subsidiary Loan Party and (b) capitalized
interest expense of such person during such period. For purposes of the
foregoing, (x) gross interest expense shall be determined after giving effect to
any net payments made or received and costs incurred by Holdings and the
Subsidiaries with respect to Swap Agreements and (y) Interest Expense shall
exclude any interest expense on Indebtedness of a third party that is not an
Affiliate of Holdings or any of its Subsidiaries and that is attributable to
supply or lease arrangements as a result of consolidation under FIN 46 or
attributable to take-or-pay contracts that are accounted for in a manner similar
to a capital lease under EITF 01-8 in either case so long as the underlying
obligations under any such supply or lease arrangement or under any such
take-or-pay contract are not treated as Indebtedness as provided in clause (y)
of the second sentence of the definition of Indebtedness.
-32-
"INTEREST PAYMENT DATE" shall mean (a) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurocurrency
Borrowing with an Interest Period of more than three months' duration, each day
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, (b) with respect to any ABR Loan, the last day of each
calendar quarter, (c) with respect to any Swingline Dollar Loan, the day that
such Swingline Dollar Loan is required to be repaid pursuant to Sections 2.09(a)
and (d) with respect to any Swingline Euro Loan, the last day of the Interest
Period applicable to such Swingline Euro Loan or any day otherwise agreed to by
the Swingline Euro Lenders.
"INTEREST PERIOD" shall mean (a) as to any Eurocurrency 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
applicable, 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, in the case of Term Borrowings or Revolving
Facility Borrowings, 9 or 12 months, if at the time of the relevant Borrowing,
all relevant Lenders make interest periods of such length available), as the
applicable Borrower may elect, or the date any Eurocurrency Borrowing is
converted to an ABR Borrowing in accordance with Section 2.07 or repaid or
prepaid in accordance with Section 2.09, 2.10 or 2.11 and (b) as to any
Swingline Euro Borrowing, the period commencing on the date of such Borrowing
and ending on the day that is designated in the notice delivered pursuant to
Section 2.04 with respect to such Swingline Euro Borrowing, which shall not be
later than the seventh day thereafter; 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.
"INTERMEDIATE HOLDCO" shall mean each entity, all of the Equity
Interests of which are owned by Holdings, which owns Equity Interests in Parent,
provided the aggregate Equity Interests of Parent owned by all Intermediate
Holdcos will not exceed 0.50% of the outstanding Equity Interests of Parent.
"ISSUING BANK" shall mean DBNY and each other Issuing Bank designated
pursuant to Section 2.05(k), in each case in its capacity as an issuer of
Letters of Credit hereunder, and its successors in such capacity as provided in
Section 2.05(i) and, solely with respect to an Existing Letter of Credit (and
any amendment, renewal or extension thereof in accordance with this Agreement),
the Lender that issued such Existing Letter of Credit. An Issuing Bank may, in
its discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of such Issuing Bank, in which case the term "Issuing Bank" shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate.
"ISSUING BANK FEES" shall have the meaning assigned to such term in
Section 2.12(b).
-33-
"JOINT LEAD ARRANGERS" shall have the meaning assigned to such term in
the introductory paragraph of this Agreement.
"JUDGMENT CURRENCY" shall have the meaning assigned to such term in
Section 9.17(b).
"JV REINVESTMENT" shall mean any investment by Term Borrower or any
Subsidiary in a joint venture to the extent funded with the proceeds of a
reasonably concurrent dividend or other distribution made by such joint venture.
"L/C DISBURSEMENT" shall mean a payment or disbursement made by an
Issuing Bank pursuant to a Letter of Credit.
"L/C LENDER" shall mean a Lender with a Revolving Facility Commitment
and/or a Credit-Linked Commitment.
"L/C PARTICIPATION FEE" shall have the meaning assigned such term in
Section 2.12(b).
"LENDER" shall mean each financial institution listed on SCHEDULE
2.01, as well as any person that becomes a "Lender" hereunder pursuant to
Section 9.04.
"LENDER DEFAULT" shall mean (i) the refusal (which has not been
retracted) of a Lender to make available its portion of any Borrowing, to
acquire participations in a Swingline Loan pursuant to Section 2.04 or to fund
its portion of any unreimbursed payment under Section 2.05(e), or (ii) a Lender
having notified in writing the applicable Borrower and/or the Administrative
Agent that it does not intend to comply with its obligations under Section 2.04,
2.05 or 2.06.
"LETTER OF CREDIT" shall mean any letter of credit (including each
Existing Letter of Credit) issued pursuant to Section 2.05. Letters of Credit
shall be either CL Letters of Credit or RF Letters of Credit.
"LIBO RATE" shall mean, with respect to any Eurocurrency Borrowing for
any Interest Period, the rate per annum determined by the Administrative Agent
at approximately 11:00 a.m., London time, on the Quotation Day for such Interest
Period by reference to the applicable Screen Rate, for a period equal to such
Interest Period; PROVIDED that, to the extent that an interest rate is not
ascertainable pursuant to the foregoing provisions of this definition, the "LIBO
Rate" shall be the average (rounded upward, if necessary, to the next 1/100 of
1%) of the respective interest rates per annum at which deposits in the currency
of such Borrowing are offered for such Interest Period to major banks in the
London interbank market by Deutsche Bank AG at approximately 11:00 a.m., London
time, on the Quotation Day for such Interest Period.
"LIEN" shall mean, with respect to any asset, (a) any mortgage, deed
of trust, lien, hypothecation, pledge, encumbrance, charge or security interest
in or on such asset and (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention
-34-
agreement (or any financing lease having substantially the same economic effect
as any of the foregoing) relating to such asset.
"LOAN DOCUMENTS" shall mean this Agreement, the Letters of Credit, the
Security Documents, the Intercreditor Agreement and any promissory note issued
under Section 2.09(e), and solely for the purposes of Section 7.01(c) hereof,
the Fee Letter.
"LOAN PARTICIPANT" shall have the meaning assigned to such term in
Section 9.04(c).
"LOAN PARTIES" shall mean Holdings, the Term Borrower and each
Subsidiary Loan Party.
"LOANS" shall mean the Term Loans, the Revolving Facility Loans, the
CL Loans and the Swingline Loans (and shall include any Replacement Term Loans).
"LOCAL TIME" shall mean (a) with respect to a Loan or Borrowing
denominated in Dollars,
New York City time and (b) with respect to a Loan or
Borrowing denominated in Euros, London time.
"LP GmbH" shall have the meaning assigned to such term in the first
recital of this Agreement.
"MAJOR DEFAULT" shall mean and include (i) a Default or Event of
Default under Section 7.01(b) or (c); (ii) a Default or Event of Default under
Section 7.01(h) or (i) in respect of Holdings, Parent or Bidco; (iii) the
invalidity, unlawfulness or repudiation of any Financing Document; and (iv) a
breach by Holdings, Parent or Bidco of Section 6.01, 6.02 or 6.09(c).
"MAJORITY LENDERS" of any Facility shall mean, at any time, Lenders
under such Facility having Loans and unused Commitments representing more than
50% of the sum of all Loans outstanding under such Facility and unused
Commitments under such Facility at such time.
"MANAGEMENT GROUP" means the group consisting of the directors,
executive officers and other management personnel of the Term Borrower and
Holdings, as the case may be, on the Closing Date together with (1) any new
directors whose election by such boards of directors or whose nomination for
election by the shareholders of the Term Borrower or Holdings, as the case may
be, was approved by a vote of a majority of the directors of the Term Borrower
or Holdings, as the case may be, then still in office who were either directors
on the Closing Date or whose election or nomination was previously so approved
and (2) executive officers and other management personnel of the Term Borrower
or Holdings, as the case may be, hired at a time when the directors on the
Closing Date together with the directors so approved constituted a majority of
the directors of the Term Borrower or Holdings, as the case may be.
"MARGIN STOCK" shall have the meaning assigned to such term in
Regulation U.
"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
-35-
business, operations, properties, assets or financial condition of Holdings and
the Subsidiaries, taken as a whole, or (b) a material impairment of the validity
or enforceability of, or a material impairment of the material rights, remedies
or benefits available to the Lenders, any Issuing Bank, the Administrative Agent
or the Collateral Agent under, any Loan Document.
"MATERIAL INDEBTEDNESS" shall mean Indebtedness (other than Loans and
Letters of Credit) of any one or more of Holdings or any Subsidiary in an
aggregate principal amount exceeding $40 million.
"MATERIAL SUBSIDIARY" shall mean, at any date of determination, any
Subsidiary (a) whose total assets at the last day of the Test Period ending on
the last day of the most recent fiscal period for which financial statements
have been delivered pursuant to Section 5.04(a) or (b) were equal to or greater
than 2% of the consolidated total assets of Holdings and its consolidated
subsidiaries at such date or (b) whose gross revenues for such Test Period were
equal to or greater than 2% of the consolidated gross revenues of Holdings and
its consolidated subsidiaries for such period, in each case determined in
accordance with US GAAP or (c) that is a Loan Party.
"MAXIMUM CREDIT LIMIT" shall mean, with respect to any Revolving
Facility Borrower, an amount that the aggregate outstanding principal amount (or
the Dollar Equivalent thereof if not denominated in Dollars) of its Revolving
Facility Loans and Swingline Loans (if any) plus the maximum stated amount (or
the Dollar Equivalent thereof if not denominated in Dollars) of outstanding RF
Letters of Credit issued for its account may not exceed.
"MAXIMUM DOLLAR TERM AMOUNT" shall mean at any time (i) the initial
aggregate principal amount of all Term Loans then or theretofore made pursuant
to SECTION 2.01(a) plus (ii) if the Increased Amount Date has occurred, the
aggregate initial principal amount of New Term Loans.
"MAXIMUM RATE" shall have the meaning assigned to such term in Section
9.09.
"MIDCO" shall have the meaning assigned to such term in the first
recital of this Agreement.
"MOODY'S" shall mean Xxxxx'x Investors Service, Inc.
"XXXXXX XXXXXXX" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"MORTGAGED PROPERTIES" shall mean the owned real properties of Loan
Parties set forth on SCHEDULE 5.14 and such additional real property (if any)
encumbered by a Mortgage pursuant to Section 5.10.
"MORTGAGES" shall mean the mortgages, deeds of trust, assignments of
leases and rents and other security documents delivered pursuant to Section 5.10
or 5.14, as amended, supplemented or otherwise modified from time to time, with
respect to Mortgaged Properties each in a form reasonably satisfactory to the
Administrative Agent.
-36-
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which Holdings, the Term Borrower, the Company,
CAC 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 six plan
years made or accrued an obligation to make contributions.
"NET INCOME" shall mean, with respect to any person, the net income
(loss) of such person, determined in accordance with US GAAP and before any
reduction in respect of preferred stock dividends.
"NET PROCEEDS" shall mean:
(a) 100% of the cash proceeds actually received by Holdings, the
Term Borrower or any of their 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 or any Subsidiary (other than
those pursuant to Section 6.05(a) (other than clause (iii) thereof to the
extent in excess of $65 million in any year), (b), (c), (e), (f), (g), (i),
(j), (k), (l) or (o)), 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 Senior Subordinated Bridge B Facility or the Senior
Subordinated Bridge C Facility or any Permitted Senior Subordinated Debt
Securities), other customary expenses and brokerage, consultant and other
customary fees actually incurred in connection therewith, (ii) Taxes or Tax
Distributions paid or payable as a result thereof and (iii) appropriate
amounts set up as a reserve against liabilities associated with the assets
or business so disposed of and retained by the selling entity after such
sale, transfer or other disposition, as reasonably determined by Holdings,
including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters, liabilities
related to post-closing purchase price adjustments and liabilities related
to any other indemnification obligation associated with the assets or
business so disposed of, provided that, upon any termination of such
reserve, all amounts not paid-out in connection therewith shall be deemed
to be "Net Proceeds" of such sale, transfer or other disposition, PROVIDED
that, if no Event of Default exists and Holdings shall deliver a
certificate of a Responsible Officer of Holdings to the Administrative
Agent promptly following receipt of any such proceeds setting forth
Holdings' intention to use any portion of such proceeds to acquire,
maintain, develop, construct, improve, upgrade or repair assets useful in
the business of Holdings and the Subsidiaries, or make investments pursuant
to Section 6.04(m), in each case within 12 months of such receipt and to
the extent not in excess of $110.0 million of Net Proceeds (determined
without giving effect to this proviso) resulting from the sale, transfer or
other disposition of an asset or group of related assets, such portion of
such proceeds shall not constitute Net Proceeds except to the extent not so
used (or contractually committed to be
-37-
used) within such 12-month period (and, if contractually committed to be
used within such 12-month period, to the extent not so used within the
18-month period following the date of receipt of such Net Proceeds), 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 $5.0 million 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 $15.0 million,
(b) 100% of the cash proceeds from the incurrence, issuance or
sale by Holdings or any Subsidiary of any Indebtedness (other than Excluded
Indebtedness), 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) the Equity Percentage of the cash proceeds from the issuance
or sale by Holdings of any Equity Interests (other than Excluded Equity
Issuances), 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.
For purposes of calculating the amount of Net Proceeds, fees, commissions and
other costs and expenses payable to Holdings or the Term Borrower or any
Affiliate of either of them shall be disregarded, except for financial advisory
fees customary in type and amount paid to Blackstone.
"NEW TERM COMMITMENT" shall have the meaning assigned to such term in
Section 2.22.
"NEW TERM LENDER" shall have the meaning assigned to such term in
Section 2.22.
"NEW TERM LOAN" shall have the meaning assigned to such term in
Section 2.22.
"NEW US HOLDCO" shall mean a company incorporated under the laws of a
state of the United States (A)(i) that owns all of the Equity Interests of US
Holdco or (ii) all of the Equity Interests in which are owned by US Holdco, with
US Holdco contributing or otherwise transferring all of its assets to New US
Holdco and (B) has been formed to effect an initial public offering.
"NON-CONSENTING LENDER" shall have the meaning assigned to such term
in Section 2.19(c).
"OBLIGATIONS" shall mean all amounts owing to the Administrative Agent
or any Lender pursuant to the terms of this Agreement or any other Loan
Document.
"OFFER" shall have the meaning assigned to such term in the first
recital of this Agreement.
"OFFER DOCUMENT" shall mean the Offer Document entitled "Voluntary
Public Takeover Offer (Cash Offer) for all Outstanding Registered Ordinary
Shares with no Par Value
-38-
of Celanese AG" published on February 2, 2004, as amended or modified from time
to time in accordance with Section 6.09(c).
"OTHER TAXES" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, the Loan Documents, and any and
all interest and penalties related thereto.
"PARENT" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"PARENT CPEC" shall mean convertible preferred equity certificates
issued by Parent having no mandatory redemption, repurchase or similar
requirements prior to 91 days after the Term Loan Maturity Date, PROVIDED that
cash distributions and/or payments may be made thereon only to the extent
permitted by Section 6.06(b) or (c).
"PARENT GUARANTEE AND PLEDGE AGREEMENT" shall mean the Parent
Guarantee and Pledge Agreement, as amended, supplemented or otherwise modified
from time to time, substantially in the form of EXHIBIT G between Parent and the
Collateral Agent, pursuant to which Parent guarantees the Obligations of the
Subsidiary Borrowers and, if Parent remains the parent corporation of US Holdco
after the Restructuring Date, of US Holdco, as Term Borrower, and pledges the
CAC Note and the stock of US Holdco to secure its Obligations and such
guarantee, with such guarantee and pledge agreement to terminate on the
Restructuring Date if Parent ceases to be the parent company of US Holdco at
such time.
"PARENT MERGER" shall mean (i) the merger of Parent with US Holdco,
with US Holdco being the surviving entity, (ii) the contribution by the Parent
to US Holdco of all of the Parent's assets and liabilities or (iii) the
contribution by Holdings to US Holdco (in exchange for stock of US Holdco) of
all of the Equity Interests of the Parent, provided that, in the case of clause
(ii) or (iii) above, (x) Holdings, at its discretion, may subsequently cause the
liquidation of the Parent and (y) US Holdco has assumed all the obligations of
Parent as a Borrower hereunder pursuant to an assumption agreement reasonably
satisfactory to the Administrative Agent (and upon such assumption, Parent shall
be released as a Borrower hereunder).
"PARTICIPANT" shall have the meaning assigned to such term in Section
2.05(d).
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"PENSION PREFUNDINGS" shall mean the use of $462.5 million of the
proceeds of the CAC Loans to prefund pension obligations of CAC and its
subsidiaries.
"PERFECTION CERTIFICATE" shall mean a certificate in the form of
Exhibit II to the U.S. Collateral Agreement or any other form approved by the
Collateral Agent.
"PERMITTED B DEBT LEVEL" shall mean an amount in Dollars equal to 50%
of the aggregate purchase price to be paid by Bidco for the shares of the
Company it has acquired on the Closing Date pursuant to the Offer.
-39-
"PERMITTED BUSINESS ACQUISITION" shall mean any acquisition of all or
any portion of the assets of, or all the Equity Interests (other than directors'
qualifying shares) in, a Person or division or line of business of a Person (or
any subsequent investment made in a Person, division or line of business
previously acquired in a Permitted Business Acquisition) if (a) such acquisition
was not preceded by, or effected pursuant to, an unsolicited or hostile offer
and (b) immediately after giving effect thereto: (i) no Event of Default shall
have occurred and be continuing or would result therefrom; (ii) all transactions
related thereto shall be consummated in accordance with all material applicable
laws; and (iii) (A) Holdings and the Subsidiaries shall be in compliance, on a
Pro Forma Basis after giving effect to such acquisition or formation, with the
Financial Performance Covenants recomputed as at the last day of the most
recently ended fiscal quarter of Holdings and the Subsidiaries, and Holdings
shall have delivered to the Administrative Agent a certificate of a Responsible
Officer of Holdings to such effect, together with all relevant financial
information for such Subsidiary or assets, and (B) any acquired or newly formed
Subsidiary shall not be liable for any Indebtedness (except for Indebtedness
permitted by Section 6.01).
"PERMITTED BUSINESS ACQUISITION STEP-UP PERIOD" shall mean any period
commencing on the first day on which the Total Leverage Ratio on a Pro Forma
Basis is less than 3.00 to 1.00 and ending on the first day thereafter on which
the Total Leverage Ratio on a Pro Forma Basis is greater than or equal to 3.00
to 1.00.
"PERMITTED CURE SECURITY" shall mean (i) any common equity security of
Holdings and/or (ii) any equity security of Holdings having no mandatory
redemption, repurchase or similar requirements prior to 91 days after the Term
Loan Maturity Date, and upon which all dividends or distributions (if any) shall
be payable solely in additional shares of such equity security.
"PERMITTED HOLDER" shall mean each of (i) Blackstone, (ii) any other
Permitted Investor and (iii) the Management Group, with respect to not more than
15% of the total voting power of the Equity Interests of Holdings or after an
initial public offering of its stock, US Holdco or New US Holdco, as the case
may be.
"PERMITTED INVESTMENTS" shall mean:
(a) direct obligations of the United States of America or any
member of the European Union or any agency thereof or obligations
guaranteed by the United States of America or any member of the European
Union or any agency thereof, in each case with maturities not exceeding two
years;
(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 that 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 having a Dollar Equivalent that is in excess of $500.0
million 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);
-40-
(c) repurchase obligations with a term of not more than 180 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 one year after the
date of acquisition, issued by a corporation (other than an Affiliate of
any 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 Moody's or A-1 (or higher) according
to S&P;
(e) securities with maturities of two years 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 S&P or A2 by Moody's;
(f) shares of mutual funds whose investment guidelines restrict
95% of such funds' investments to those satisfying the provisions of
clauses (a) through (e) above;
(g) money market funds that (i) comply with the criteria set forth
in Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA
by S&P and Aaa by Moody's and (iii) have portfolio assets of at least
$5,000.0 million;
(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
the total assets of the Term Borrower and the Subsidiaries, on a
consolidated basis, as of the end of the Term Borrower's most recently
completed fiscal year; and
(i) in the case of the Captive Insurance Subsidiaries only, other
investments customarily held by the Captive Insurance Subsidiaries in the
ordinary course of their business and consistent with their past practices.
"PERMITTED INVESTORS" shall mean (x) Blackstone and (y) other
investors that provide a portion of the Holdco Equity Financing provided that
(i) all such other investors shall be reasonably satisfactory to the Initial
Lenders and (ii) the majority of the Holdco Equity Financing shall be provided
by Blackstone.
"PERMITTED RECEIVABLES DOCUMENTS" shall mean all documents and
agreements evidencing, relating to or otherwise governing a Permitted
Receivables Financing.
"PERMITTED RECEIVABLES FINANCING" shall mean one or more transactions
pursuant to which (i) Receivables Assets or interests therein are sold to or
financed by one or more Special Purpose Receivables Subsidiaries, and (ii) such
Special Purpose Receivables Subsidiaries finance their acquisition of such
Receivables Assets or interests therein, or the financing thereof, by selling or
borrowing against such Receivables Assets; PROVIDED that (A) recourse to
Holdings or any Subsidiary (other than Special Purpose Receivables Subsidiaries)
in connection with such transactions shall be limited to the extent customary
for similar transactions in the applicable jurisdictions (including, to the
extent applicable, in a manner consistent with the
-41-
delivery of a "true sale"/"absolute transfer" opinion with respect to any
transfer by Holdings or any Subsidiary (other than a Special Purpose Receivables
Subsidiary) and purchase price percentages being reasonably satisfactory to the
Administrative Agent) and (B) the aggregate Receivables Net Investment since the
Closing Date shall not exceed $200.0 million at any time.
"PERMITTED REFINANCING INDEBTEDNESS" shall mean any Indebtedness
issued in exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease or refund (collectively, to "REFINANCE"), the
Indebtedness being Refinanced (or previous refinancings thereof constituting
Permitted Refinancing Indebtedness); PROVIDED that (a) 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),
(b) the average life to maturity of such Permitted Refinancing Indebtedness is
greater than or equal to that of the Indebtedness being Refinanced, (c) 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, (d) no Permitted Refinancing Indebtedness shall
have different obligors, or greater guarantees or security, than the
Indebtedness being Refinanced and (e) 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, in respect of working capital facilities
of Foreign Subsidiaries otherwise permitted under this Agreement only, 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 SENIOR SUBORDINATED DEBT SECURITIES" shall mean (x) Senior
Subordinated Notes and (y) unsecured senior subordinated notes issued by the
Term Borrower (i) the terms of which (1) do not provide for any scheduled
repayment, mandatory redemption or sinking fund obligation prior to the date on
which the final maturity of the Senior Subordinated Notes occurs (as in effect
on the Closing Date) and (2) provide for subordination to the Obligations under
the Loan Documents to substantially the same extent as the Senior Subordinated
Note Indenture, (ii) the covenants, events of default, guarantees and other
terms of which (other than interest rate and redemption premiums), taken as a
whole, are not more restrictive to Holdings and the Subsidiaries than those in
the Senior Subordinated Notes and (iii) as to which no Subsidiary of Term
Borrower is an obligor that is not an obligor under the Senior Subordinated
Notes.
"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 Holdings, the Term Borrower, any
Subsidiary (including the Company) 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.
-42-
"PLEDGED COLLATERAL" shall have the meaning assigned to such term in
the U.S. Collateral Agreement, an Alternate Pledge Agreement or a Foreign Pledge
Agreement, as applicable.
"PRESUMED TAX RATE" shall mean the highest effective marginal
statutory combined U.S. federal, state and local income tax rate prescribed for
an individual residing in
New York City (taking into account (i) the
deductibility of state and local income taxes for U.S. federal income tax
purposes, assuming the limitation of Section 68(a)(2) of the Code applies and
taking into account any impact of the Code, and (ii) the character (long-term or
short-term capital gain, dividend income or other ordinary income) of the
applicable income).
"PRIMARY OBLIGOR" shall have the meaning given such term in the
definition of the term "Guarantee."
"PRIME RATE" shall mean the rate of interest per annum announced from
time to time by DBNY 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 (i) and (ii) below that 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 such
events occurred on the first day of the four consecutive fiscal quarter period
ended on or before the occurrence of such event (the "REFERENCE PERIOD"):
(i) in making any determination of EBITDA, PRO FORMA effect shall
be given to any Asset Disposition and to any Asset Acquisition (or any
similar transaction or transactions that require a waiver or consent of the
Required Lenders pursuant to Section 6.04 or 6.05), in each case that
occurred during the Reference Period (or, in the case of determinations
made pursuant to the definition of the term "Asset Acquisition," occurring
during the Reference Period or thereafter and through and including the
date upon which the respective Asset Acquisition is consummated); and
(ii) 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 amounts outstanding under any
Permitted Receivables Financing, in each case 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 the
term "Asset Acquisition," occurring during the Reference Period or
thereafter and through and including the date upon which the respective
Asset 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
-43-
PRO FORMA basis as if the rates that 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 the term
"Pro Forma Basis" shall be determined in good faith by a Responsible Officer of
the Term Borrower and (x) for any fiscal period ending on or prior to the first
anniversary of an Asset Acquisition or Asset Disposition (or any similar
transaction or transactions that require a waiver or consent of the Required
Lenders pursuant to Section 6.04 or 6.05), may include adjustments to reflect
operating expense reductions and other operating improvements or synergies
reasonably expected to result from such Asset Acquisition, Asset Disposition or
other similar transaction, to the extent that the Term Borrower delivers to the
Administrative Agent (i) a certificate of a Financial Officer of the Term
Borrower setting forth such operating expense reductions and other operating
improvements or synergies and (ii) information and calculations supporting in
reasonable detail such estimated operating expense reductions and other
operating improvements or synergies, and (y) for any fiscal period ending prior
to the first anniversary of the Closing Date, PRO FORMA effect shall be given to
the Transaction in determining EBITDA so long as the required certifications
described in preceding clause (x) are specifically included in reasonable detail
in the respective officer's certificate and related information and
calculations.
"PROJECTIONS" shall mean the projections of Holdings and the
Subsidiaries included in the Information Memorandum and any other projections
and any forward-looking statements (including statements with respect to booked
business) of such entities furnished to the Lenders or the Administrative Agent
by or on behalf of Holdings, the Term Borrower or any of the Subsidiaries prior
to the Closing Date.
"PUBLICATION DATE" shall mean the date on which the Offer has been
published in accordance with the German Securities and Takeover Act.
"PURPOSE BORROWING" shall mean each Borrowing of Revolving Facility
Loans for the purposes described in the first sentence of Section 3.12 and each
Borrowing of Term Loans.
"QUOTATION DAY" shall mean, with respect to any Eurocurrency Borrowing
or Swingline Euro Borrowing and any Interest Period, the day on which it is
market practice in the relevant interbank market for prime banks to give
quotations for deposits in the currency of such Borrowing for delivery on the
first day of such Interest Period. If such quotations would normally be given by
prime banks on more than one day, the Quotation Day will be the last of such
days.
"RB DATE" shall mean the earlier of the Restructuring Date and the
date on which the Term Borrower has delivered to the Administrative Agent a
certificate of a Responsible Officer of the Term Borrower to the effect that
guaranties by CAC and the CAC Guarantor Subsidiaries of Revolving Loans incurred
by the Term Borrower are permitted under German law.
"RECEIVABLES ASSETS" shall mean accounts receivable (including any
bills of exchange) and related assets and property from time to time originated,
acquired or otherwise owned by Holdings or any Subsidiary.
-44-
"RECEIVABLES NET INVESTMENT" shall mean the aggregate cash amount paid
by the lenders or purchasers under any Permitted Receivables Financing in
connection with their purchase of, or the making of loans secured by,
Receivables Assets or interests therein, as the same may be reduced from time to
time by collections with respect to such Receivables Assets or otherwise in
accordance with the terms of the Permitted Receivables Documents; PROVIDED,
HOWEVER, that if all or any part of such Receivables Net Investment shall have
been reduced by application of any distribution and thereafter such distribution
is rescinded or must otherwise be returned for any reason, such Receivables Net
Investment shall be increased by the amount of such distribution, all as though
such distribution had not been made.
"REFERENCE PERIOD" shall have the meaning assigned to such term in the
definition of the term "Pro Forma Basis."
"REFINANCE" shall have the meaning assigned to such term in the
definition of the term "Permitted Refinancing Indebtedness," and "REFINANCED"
shall have a meaning correlative thereto.
"REFINANCED TERM LOANS" shall have the meaning assigned to such term
in Section 9.08(e).
"REFINANCING" shall mean a refinancing of indebtedness for borrowed
money of the Company and its subsidiaries outstanding on the Closing Date.
"REGISTER" shall have the meaning assigned to such term in Section
9.04(b).
"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.
"RELATED PARTIES" shall mean, with respect to any specified person,
such person's Affiliates and the respective directors, officers, employees,
agents and advisors of such person and such person's Affiliates.
"RELEASE" shall mean any spilling, leaking, seepage, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing, depositing, emanating or migrating in, into, onto or through the
Environment.
"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.
"REPLACEMENT TERM LOANS" shall have the meaning assigned to such term
in Section 9.08(e).
-45-
"REPORTABLE EVENT" shall mean any reportable event as defined in
Section 4043(c) of ERISA or the regulations issued thereunder, other than those
events as to which the 30-day notice period referred to in Section 4043(c) of
ERISA has been 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 Section 414 of the Code).
"REQUEST TO ISSUE" shall have the meaning assigned to such term in
Section 2.05(b).
"REQUIRED LENDERS" shall mean, at any time, Lenders having (a) Loans
(other than CL Loans and Swingline Loans) outstanding, (b) Revolving L/C
Exposures, (c) Swingline Exposures, (d) Available Revolving Unused Commitments
and (e) Credit-Linked Commitments (or after the termination thereof, CL
Percentages of the CL Exposure) that taken together, represent more than 50% of
the sum of (v) all Loans (other than CL Loans and Swingline Loans) outstanding,
(w) Revolving L/C Exposures, (x) Swingline Exposures, (y) the total Available
Revolving Unused Commitments and (z) the Total Credit-Linked Commitment (or
after the termination thereof, the CL Exposure) at such time. The Loans,
Revolving L/C Exposures, Swingline Exposures, Available Revolving Unused
Commitment and Credit-Linked Commitment of any Defaulting Lender shall be
disregarded in determining Required Lenders at any time.
"REQUIRED PERCENTAGE" shall mean, with respect to an Excess Cash Flow
Period, (i) 75% or (ii) 50% for any Excess Cash Flow Period ending on or after
December 31, 2005, if the Total Leverage Ratio at the end of such Excess Cash
Flow Period was less than 3.00 to 1.00.
"RESERVE ACCOUNT" shall have the meaning assigned to such term in
Section 10.02(a).
"RESET DATE" shall have the meaning assigned to such term in Section
1.03(a).
"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 person in
respect of this Agreement.
"RESTRUCTURING" shall mean (i) the distribution or sale (in return for
an unsecured promissory note of the Company reasonably satisfactory to the
Initial Lenders) to the Company of all the capital stock of CAC, (ii) the sale
to Bidco by the Company of all such capital stock in return for an unsecured
promissory note of Bidco (which note shall be reasonably satisfactory to the
Initial Lenders), (iii) the sale by Bidco of all or a portion of such capital
stock to Parent in return for the cancellation of a portion of the intercompany
debt owed by Bidco to Parent as referred to in the eighth recital to this
Agreement, (iv) the distribution of any remaining portion of such capital stock
by Bidco to Midco, (v) the sale in return for the cancellation of a portion of
the intercompany debt owed by Midco to Parent as referred to in the eighth
recital to this Agreement, or distribution, by Midco to Parent of all such
capital stock of CAC that it has acquired, (vi) Parent Merger and CAC becoming a
direct subsidiary of US Holdco or an indirect subsidiary of US Holdco so long as
each company between US Holdco and CAC is (or concurrently becomes) a Domestic
Subsidiary Loan Party, (vii) the execution and delivery of all the
-46-
Loan Documents described in Part II of SCHEDULE 1.01(b) and (viii) the
satisfaction of clause (h) of the definition of Collateral Guarantee
Requirements with respect to all Liens created pursuant to the Loan Documents
referred to in clause (vii).
"RESTRUCTURING DATE" shall mean the date after the Domination
Agreement has been registered and become effective on which all of the
Restructuring has been completed.
"REVOLVING AVAILABILITY PERIOD" shall mean the period from and
including the Closing Date to but excluding the earlier of the Revolving
Facility Maturity Date and in the case of each of the Revolving Facility Loans,
Revolving Facility Borrowings, Swingline Dollar Loans, Swingline Dollar
Borrowings, Swingline Euro Loans and Swingline Euro Borrowings and RF Letters of
Credit, the date of termination of the Revolving Facility Commitments.
"REVOLVING BORROWER AGREEMENT" shall mean a Subsidiary Borrower
Agreement substantially in the form of EXHIBIT I-1.
"REVOLVING BORROWER TERMINATION" shall mean a Subsidiary Borrower
Termination substantially in the form of EXHIBIT I-2.
"REVOLVING BORROWERS" shall mean (x) CAC and, on and after the RB
Date, the Term Borrower (each of which shall have a Maximum Credit Limit at any
time equal to the Dollar Equivalent of the aggregate Revolving Facility
Commitments at such time) and (y) from the date of the execution and delivery to
the Administrative Agent by it of a Revolving Borrower Agreement to but not
including the date of the execution and delivery to the Administrative Agent by
it of a Revolving Borrower Termination, each Subsidiary of the Term Borrower
designated as a Revolving Borrower by the Term Borrower pursuant to Section
2.20.
"REVOLVING FACILITY" shall mean the Revolving Facility Commitments and
the extensions of credit made hereunder by the Revolving Facility Lenders.
"REVOLVING FACILITY BORROWING" shall mean a Borrowing comprised of
Revolving Facility Loans.
"REVOLVING FACILITY COMMITMENT" shall mean, with respect to each
Revolving Facility Lender, the commitment of such Revolving Facility Lender to
make Revolving Facility Loans pursuant to Section 2.01, expressed as an amount
representing the maximum aggregate permitted amount of such Revolving Facility
Lender's Revolving Facility Credit Exposure hereunder, as such commitment may be
(a) reduced from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender under
Section 9.04. The initial amount of each Revolving Facility Lender's Revolving
Facility Commitment is the Dollar Equivalent on the Closing Date of the amount
set forth opposite such Lender's name on SCHEDULE 2.01 directly below the column
entitled "Revolving Facility Commitment" or in the Assignment and Acceptance
pursuant to which such Revolving Facility Lender shall have assumed its
Revolving Facility Commitment, as applicable. The aggregate amount of the
Revolving Facility Commitments on the date hereof is the Dollar Equivalent on
the Closing Date of EURO 312.5 million (i.e., $379, 759, 375).
-47-
"REVOLVING FACILITY CREDIT EXPOSURE" shall mean, at any time, the sum
of (a) the aggregate principal amount of the Revolving Facility Loans
denominated in Dollars outstanding at such time, (b) the Dollar Equivalent of
the aggregate principal amount of the Revolving Facility Loans denominated in
Euros outstanding at such time, (c) the Swingline Dollar Exposure at such time,
(d) the Swingline Euro Exposure at such time and (e) the Revolving L/C Exposure
at such time. The Revolving Facility Credit Exposure of any Revolving Facility
Lender at any time shall be the sum of (a) the aggregate principal amount of
such Revolving Facility Lender's Revolving Facility Loans denominated in Dollars
outstanding at such time, (b) the Dollar Equivalent of the aggregate principal
amount of Revolving Facility Lender's Revolving Facility Loans denominated in
Euros outstanding at such time and (c) such Revolving Facility Lender's
Revolving Facility Percentage of the Swingline Dollar Exposure, Swingline Euro
Exposure and Revolving L/C Exposure at such time.
"REVOLVING FACILITY LENDER" shall mean a Lender with a Revolving
Facility Commitment or with outstanding Revolving Facility Loans.
"REVOLVING FACILITY LOAN" shall mean a Loan made by a Revolving
Facility Lender pursuant to Section 2.01(b). Each Revolving Facility Loan
denominated in Dollars shall be a Eurocurrency Loan or an ABR Loan, and each
Revolving Facility Loan denominated in Euros shall be a Eurocurrency Loan.
"REVOLVING FACILITY MATURITY DATE" shall mean the fifth anniversary of
the Closing Date.
"REVOLVING FACILITY PERCENTAGE" shall mean, with respect to any
Revolving Facility Lender, the percentage of the total Revolving Facility
Commitments represented by such Lender's Revolving Facility Commitment. If the
Revolving Facility Commitments have terminated or expired, the Revolving
Facility Percentages shall be determined based upon the Revolving Facility
Commitments most recently in effect, giving effect to any assignments pursuant
to Section 9.04.
"REVOLVING L/C EXPOSURE" shall mean at any time the sum of (a) the
aggregate undrawn amount of all RF Letters of Credit denominated in Dollars
outstanding at such time, (b) the Dollar Equivalent of the aggregate undrawn
amount of all RF Letters of Credit denominated in Euros outstanding at such
time, (c) the aggregate principal amount of all Dollar L/C Disbursements made in
respect of RF Letters of Credit that have not yet been reimbursed at such time
and (d) the Dollar Equivalent of the aggregate principal amount of Euro L/C
Disbursements made in respect of RF Letters of Credit that have not yet been
reimbursed at such time. The Revolving L/C Exposure of any Revolving Facility
Lender at any time shall mean its Revolving Facility Percentage of the aggregate
Revolving L/C Exposure at such time.
"RF COMMITMENT FEE" shall have the meaning assigned to such term in
Section 2.12(a).
"RF LETTER OF CREDIT" shall mean each Letter of Credit designated as
such pursuant to SCHEDULE 2.05(a) or the relevant Request to Issue (although any
RF Letter of Credit
-48-
initially designated as such shall cease to constitute an RF Letter of Credit
upon its re-designation as a CL Letter of Credit pursuant to Section 2.05(b)).
"RF RESERVE ACCOUNT" shall have the meaning assigned to such term in
Section 10.02(a).
"S&P" shall mean Standard & Poor's Ratings Group, Inc.
"SALE AND LEASE-BACK TRANSACTION" shall have the meaning assigned to
such term in Section 6.03.
"SCREEN RATE" shall mean:
(a) for Loans denominated in Dollars, the British Bankers
Association Interest Settlement Rate; and
(b) for Loans denominated in Euros, the percentage rate per annum
determined by the Banking Federation of the European Union
for the applicable Interest Period displayed on the appropriate page of the
Telerate screen selected by the Administrative Agent. If the relevant page is
replaced or the service ceases to be available, the Administrative Agent (after
consultation with the Term Borrower and the Lenders) may specify another page or
service displaying the appropriate rate.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"SECURED PARTIES" shall mean the "Secured Parties" as defined in the
U.S. Collateral Agreement.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SECURITY DOCUMENTS" shall mean, at any time, each of the Mortgages,
the U.S. Collateral Agreement and all Supplements thereto, the Holdings
Guarantee and Pledge Agreement, any Foreign Pledge Agreement then in effect, any
Alternate Pledge Agreement then in effect and, prior to the Restructuring Date
only, the CAC Note and (unless Parent remains the parent of US Holdco after the
Parent Merger) the Parent Guarantee and 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 5.10.
"SENIOR SUBORDINATED BRIDGE B FACILITY" shall have the meaning
assigned to such term in the sixth recital of this Agreement.
"SENIOR SUBORDINATED BRIDGE B FINANCING DOCUMENTS" shall mean the
Senior Subordinated Bridge B Debt Loan Agreement and the Bidco Agreements.
"SENIOR SUBORDINATED BRIDGE B LOAN AGREEMENT" shall mean the Senior
Subordinated Bridge B Loan Agreement dated as of April 6, 2004 among Holdings,
Parent, and
-49-
INTER ALIA, the Initial Lenders as in effect on the Closing Date and as the same
may be amended as permitted by Section 6.09.
"SENIOR SUBORDINATED BRIDGE B LOANS" shall mean the loans made under
the Senior Subordinated Bridge B Loan Agreement.
"SENIOR SUBORDINATED BRIDGE C FACILITY" shall have the meaning
assigned to such term in the fifth recital of this Agreement.
"SENIOR SUBORDINATED BRIDGE C FINANCING DOCUMENTS" shall mean the
Senior Subordinated Bridge C Loan Agreement.
"SENIOR SUBORDINATED BRIDGE C LOAN AGREEMENT" shall mean the Senior
Subordinated Bridge C Loan Agreement dated as of April 6, 2004 among Holdings,
Parent and INTER ALIA, the Initial Lenders as in effect on the Closing Date and
as the same may be amended as permitted by Section 6.09.
"SENIOR SUBORDINATED BRIDGE C LOANS" shall mean the loans made under
the Senior Subordinated Bridge C Loan Agreement.
"SENIOR SUBORDINATED NOTE INDENTURE" shall mean the Indenture or
Indentures under which the Senior Subordinated Notes are issued, between the
Term Borrower and the trustee named therein, as in effect on the Closing Date or
substantially in the form attached as an exhibit to the Senior Subordinated
Bridge B Loan Agreement and/or the Senior Subordinated Bridge C Loan Agreement
(with any deviation adverse to the Lenders to be reasonably satisfactory to the
Administrative Agent) or as is otherwise reasonably satisfactory to the
Administrative Agent, and, in each case, as amended, restated, supplemented or
otherwise modified from time to time in accordance with the requirements thereof
and of this Agreement.
"SENIOR SUBORDINATED NOTES" shall mean the senior subordinated notes
in an aggregate principal amount up to the principal amount (including principal
resulting from any pay in kind interest thereon) of the Senior Subordinated
Bridge B Loans and the Senior Subordinated Bridge C Loans refinanced thereby,
which notes shall be issued by US Holdco (or by Parent and assumed by US Holdco
on the Restructuring Date) and shall be guaranteed by all entities guaranteeing
the Term Loans on and after the Restructuring Date.
"SPECIAL PURPOSE RECEIVABLES SUBSIDIARY" shall mean a direct or
indirect Subsidiary of the Term Borrower established in connection with a
Permitted Receivables Financing for the acquisition of Receivables Assets or
interests therein, and which is organized in a manner intended to reduce the
likelihood that it would be substantively consolidated with Holdings or any of
the Subsidiaries (other than Special Purpose Receivables Subsidiaries) in the
event Holdings or any such Subsidiary becomes subject to a proceeding under the
U.S. Bankruptcy Code (or other insolvency law).
"SPECIFIED LOAN PARTY" shall mean at any time a Loan Party at such
time if the Obligations owing by it (directly or by guarantee) are unsecured by
a Lien on its assets.
-50-
"SQUEEZE-OUT" shall mean the procedures set out in sections 327a ET
SEQ. of the German Stock Corporation Act in respect of the acquisition of the
shares of the Company by Bidco.
"STATUTORY RESERVES" shall mean, with respect to any currency, any
reserve, liquid asset or similar requirements established by any Governmental
Authority of the United States of America or of the jurisdiction of such
currency or any jurisdiction in which Loans in such currency are made to which
banks in such jurisdiction are subject for any category of deposits or
liabilities customarily used to fund loans in such currency or by reference to
which interest rates applicable to Loans in such currency are determined.
"SUBORDINATED INTERCOMPANY DEBT" shall have the meaning assigned to
such term in Section 6.01(e).
"SUBSIDIARY" shall mean, with respect to any person (herein referred
to as the "PARENT"), any corporation, partnership, association or other business
entity 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 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, provided that Estech GmbH & Co. KG and Estech Managing GmbH shall
not constitute subsidiaries.
"SUBSIDIARY" shall mean, unless the context otherwise requires, a
subsidiary of Holdings.
"SUBSIDIARY BORROWER" shall mean CAC and each other subsidiary that is
a Subsidiary Revolving Borrower.
"SUBSIDIARY LOAN PARTY" shall mean (i) each Subsidiary that is a
Domestic Subsidiary Loan Party and (ii) each Subsidiary that is a Foreign
Subsidiary Loan Party.
"SUBSIDIARY REVOLVING BORROWER" shall have the meaning assigned to
that term in the introductory paragraph of this Agreement.
"SUPPLEMENT" shall have the meaning assigned to that term in the U.S.
Collateral Agreement.
"SWAP AGREEMENT" shall mean any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value or
any similar transaction or any combination of these transactions, PROVIDED that
no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of Holdings or any of its Subsidiaries shall be a Swap Agreement.
-51-
"SWINGLINE BORROWER" shall mean and include each Domestic Swingline
Borrower and each Foreign Swingline Borrower.
"SWINGLINE BORROWING REQUEST" shall mean a request substantially in
the form of EXHIBIT C.
"SWINGLINE DOLLAR BORROWING" shall mean a Borrowing comprised of
Swingline Dollar Loans.
"SWINGLINE DOLLAR COMMITMENT" shall mean, with respect to each
Swingline Dollar Lender, the commitment of such Swingline Dollar Lender to make
Swingline Dollar Loans pursuant to Section 2.04. The amount of each Swingline
Dollar Lender's Swingline Dollar Commitment on the Closing Date is set forth on
SCHEDULE 2.04 as the same may be modified at the request of the Term Borrower
with the consent of any Revolving Facility Lender being added as a Swingline
Dollar Lender and the Administrative Agent. The aggregate amount of the
Swingline Dollar Commitments on the Closing Date is $75.0 million.
"SWINGLINE DOLLAR EXPOSURE" shall mean at any time the aggregate
principal amount of all outstanding Swingline Dollar Borrowings at such time.
The Swingline Dollar Exposure of any Revolving Facility Lender at any time shall
mean its Revolving Facility Percentage of the aggregate Swingline Dollar
Exposure at such time.
"SWINGLINE DOLLAR LENDER" shall mean a Lender with a Swingline Dollar
Commitment or outstanding Swingline Dollar Loans.
"SWINGLINE DOLLAR LOANS" shall mean the swingline loans denominated in
Dollars and made to the Term Borrower pursuant to Section 2.04.
"SWINGLINE EURO BORROWING" shall mean a Borrowing comprised of
Swingline Euro Loans.
"SWINGLINE EURO COMMITMENT" shall mean, with respect to each Swingline
Euro Lender, the commitment of such Swingline Euro Lender to make Swingline Euro
Loans pursuant to Section 2.04. The amount of each Swingline Euro Lender's
Swingline Euro Commitment on the Closing Date is set forth on SCHEDULE 2.04 as
the same may be modified at the request of the Term Borrower with the consent of
any Revolving Facility Lender being added as a Swingline Euro Lender and the
Administrative Agent. The aggregate amount of the Swingline Euro Commitments on
the Closing Date is EURO 75.0 million.
"SWINGLINE EURO EXPOSURE" shall mean at any time the Dollar Equivalent
of the aggregate principal amount of all outstanding Swingline Euro Loans at
such time. The Swingline Euro Exposure of any Revolving Facility Lender at any
time shall mean its Revolving Facility Percentage of the aggregate Swingline
Euro Exposure at such time.
"SWINGLINE EURO LENDER" shall mean a Lender with a Swingline Euro
Commitment or outstanding Swingline Euro Loans.
-52-
"SWINGLINE EURO LOANS" shall mean the swingline loans denominated in
Euros and made to a Foreign Subsidiary Borrower pursuant to Section 2.04.
"SWINGLINE EXPOSURE" shall mean at any time the sum of the Swingline
Dollar Exposure and the Swingline Euro Exposure.
"SWINGLINE LENDER" shall mean (i) the Swingline Dollar Lenders, in
their respective capacities as Lenders of Swingline Dollar Loans, and (ii) the
Swingline Euro Lenders, in their respective capacities as Lenders of Swingline
Euro Loans.
"SWINGLINE LOANS" shall mean the Swingline Dollar Loans and the
Swingline Euro Loans.
"TAX DISTRIBUTION" shall mean any distribution described in Section
6.06(f).
"TAXES" shall mean any and all present or future taxes, levies,
imposts, duties (including stamp duties), deductions, charges (including AD
VALOREM charges) or withholdings imposed by any Governmental Authority and any
and all interest and penalties related thereto.
"TERM AVAILABILITY PERIOD" shall mean the period from and including
the Closing Date until 5 p.m. New York City time on the six month anniversary of
the Closing Date.
"TERM BORROWER" shall mean (i) prior to the Restructuring Date, Parent
and (ii) on and after the Restructuring Date, US Holdco.
"TERM LENDER" shall mean a Lender with a Term Loan Commitment or with
outstanding Term Loans (including each New Term Lender).
"TERM LOAN" shall mean each of the term loans made to the Term
Borrower pursuant to Section 2.01(a) or Section 2.22. Each Term Loan shall be a
Eurocurrency Loan or an ABR Loan.
"TERM LOAN BORROWING" shall mean a borrowing of Term Loans.
"TERM LOAN COMMITMENT" shall mean, with respect to each Lender, the
commitment of such Lender to make Term Loans equal to the Dollar Equivalent on
the Closing Date of the amount set forth opposite such Lender's name on SCHEDULE
2.01 directly below the column entitled "Term Loan Commitment" or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Term Loan Commitment, as applicable. The aggregate Term Loan Commitments on the
Closing Date is the Dollar Equivalent on the Closing Date of EURO 500 million
(i.e., $607,615,000).
"TERM LOAN FACILITY" shall mean the Term Loan Commitments and the Term
Loans made hereunder.
"TERM LOAN MATURITY DATE" shall mean the date which is the seventh
anniversary of the Closing Date.
-53-
"TEST PERIOD" shall mean, on any date of determination, the period of
four consecutive fiscal quarters of Holdings then most recently ended (taken as
one accounting period).
"TL COMMITMENT FEE" shall have the meaning assigned to such term in
Section 2.12(c).
"TOTAL CREDIT-LINKED COMMITMENT" shall mean, at any time, the sum of
the Credit-Linked Commitments of each of the Lenders at such time, which on the
Closing Date shall equal the Dollar Equivalent of EURO 187.5 million (i.e.,
$227,855,625).
"TOTAL LEVERAGE RATIO" shall mean, on any date, the ratio of (a)
Consolidated Net Debt as of such date to (b) EBITDA for the period of four
consecutive fiscal quarters of Holdings most recently ended as of such date, all
determined on a consolidated basis in accordance with US GAAP; PROVIDED that any
Asset Disposition or any Asset Acquisition (or any similar transaction or
transactions that require a waiver or consent by the Required Lenders pursuant
to Section 6.04 or 6.05) or incurrence or repayment of Indebtedness (excluding
normal fluctuations in revolving Indebtedness incurred for working capital
purposes) has occurred during the relevant Test Period, EBITDA shall be
determined for the respective Test Period on a Pro Forma Basis for such
occurrences.
"TOTAL UNUTILIZED CREDIT-LINKED COMMITMENT" shall mean, at any time,
an amount equal to the remainder of (x) the Total Credit-Linked Commitment then
in effect less (y) the CL Exposure at such time.
"TRANSACTION" shall mean, collectively, (i) the transactions to occur
on or prior to the Closing Date pursuant to the Transaction Documents, including
(a) the Consummation of the Offer; (b) the execution and delivery of the Loan
Documents and the initial borrowings hereunder; (c) the Holdco Equity Financing;
(d) the incurrence of the Senior Subordinated Bridge B Loans and the Senior
Subordinated Bridge C Loans; and (e) the payment of all fees and expenses to be
paid on or prior to the Closing Date and owing in connection with the foregoing
and (ii) the purchase of shares of the Company by Bidco subsequent to the
Closing Date pursuant to the Offer during the subsequent offer period, pursuant
to a Squeeze-Out or otherwise.
"TRANSACTION COSTS" shall mean the out-of-pocket costs and expenses
incurred by Holdings or any Subsidiary in connection with the Offer, the
financing of the Offer and any refinancing of such financing (including fees
paid to the Initial Lenders and other Lenders and fees and expenses of the
Permitted Investors and their counsel and advisors).
"TRANSACTION DEBT" shall mean the Loans hereunder and the Senior
Subordinated Bridge B Loans and the Senior Subordinated Bridge C Loans.
"TRANSACTION DOCUMENTS" shall mean the Offer Document, the Senior
Subordinated Bridge B Financing Documents, the Senior Subordinated Bridge C
Financing Documents, the Holdco Equity Commitment Letter and the Loan Documents.
"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 deter
-54-
mined. For purposes hereof, the term "RATE" shall include the Adjusted LIBO Rate
and the Alternate Base Rate.
"U.S. BANKRUPTCY CODE" shall mean Title 11 of the United States
Code, as amended, or any similar federal or state law for the relief of debtors.
"U.S. COLLATERAL AGREEMENT" shall mean the Guarantee and Collateral
Agreement, as amended, supplemented or otherwise modified from time to time,
substantially in the form of EXHIBIT D among the Term Borrower (after the
Restructuring Date), CAC, the CAC Guarantor Subsidiaries, all other Subsidiaries
party thereto and the Collateral Agent.
"US GAAP" shall mean generally accepted accounting principles in
effect from time to time in the United States, applied on a consistent basis,
subject to the provisions of Section 1.02.
"US HOLDCO" shall have the meaning assigned to such term in the first
recital of this Agreement.
"WHOLLY OWNED SUBSIDIARY" of any person shall mean a subsidiary of
such person, all of the Equity Interests of which (other than directors'
qualifying shares or nominee or other similar shares required pursuant to
applicable law) are owned by such person or another Wholly Owned Subsidiary of
such person, PROVIDED that the Company and its Wholly Owned Subsidiaries shall
on and after the Closing Date constitute Wholly Owned Subsidiaries of the
Parent.
"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 Holdings and the
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; PROVIDED that, for purposes of calculating Excess Cash Flow,
increases or decreases in Working Capital shall be calculated without regard to
any changes in Current Assets or Current Liabilities as a result of (a) any
reclassification in accordance with US GAAP of assets or liabilities, as
applicable, between current and noncurrent or (b) the effects of purchase
accounting.
SECTION 1.02 TERMS GENERALLY. The definitions set forth or referred
to 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, any reference in this Agreement to any
Loan Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with US GAAP, as in effect from time to time; PROVIDED that, if
-55-
Holdings notifies the Administrative Agent that Holdings requests an amendment
to any provision hereof to eliminate the effect of any change occurring after
the Closing Date in US GAAP or in the application thereof on the operation of
such provision (or if the Administrative Agent notifies Holdings that the
Required Lenders request an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such change in US
GAAP or in the application thereof, then such provision shall be interpreted on
the basis of US GAAP as in effect and applied immediately before such change
shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith. For the purposes of determining
compliance with Section 6.01 through Section 6.10 with respect to any amount in
a currency other than Dollars, amounts shall be deemed to equal the Dollar
Equivalent thereof determined using the Exchange Rate calculated as of the
Business Day on which such amounts were incurred or expended, as applicable. In
addition, for purposes of this Agreement, inventory will be deemed to be
accounted for on a "first-in-first-out" basis.
SECTION 1.03 EXCHANGE RATES. (a) Not later than 1:00 p.m., New York
City time, on each Calculation Date, the Administrative Agent shall (i)
determine the Exchange Rate as of such Calculation Date and (ii) give notice
thereof to the Term Borrower. The Exchange Rates so determined shall become
effective on the first Business Day immediately following the relevant
Calculation Date (a "RESET DATE"), shall remain effective until the next
succeeding Reset Date, and shall for all purposes of this Agreement (other than
any other provision expressly requiring the use of an Exchange Rate calculated
as of a specified date) be the Exchange Rates employed in converting any amounts
between Dollars and Euros.
(b) Not later than 5:00 p.m., New York City time, on each Reset
Date, the Administrative Agent shall (i) determine the aggregate amount of the
Dollar Equivalents of the principal amounts of the Revolving Loans and Swingline
Loans denominated in Euros then outstanding (after giving effect to any
Revolving Loans and Swingline Loans denominated in Euros made or repaid on such
date), the Revolving L/C Exposure and the CL Exposure and (ii) notify the
Lenders, each Issuing Bank and the Term Borrower of the results of such
determination.
SECTION 1.04 EFFECTUATION OF TRANSACTION. Each of the representations
and warranties of Holdings and the Borrowers contained in this Agreement (and
all corresponding definitions) are made after giving effect to the Transaction,
unless the context otherwise requires.
ARTICLE II
THE CREDITS
SECTION 2.01 COMMITMENTS. Subject to the terms and conditions set
forth herein, each Lender agrees
(a) to make term loans to the Term Borrower in Dollars (x) on the
Closing Date in an aggregate principal amount for all Term Lenders of at
least the Dollar Equivalent of EURO 75 million and (y) from time to time on
and after the Closing Date and during the Term Availability Period in an
amount not to exceed its Term Loan
-56-
Commitment at such time PROVIDED, that any Term Loan that is repaid may not
be reborrowed;
(b) to make revolving loans to the Revolving Borrowers from time
to time during the Revolving Availability Period in an aggregate principal
amount that will not result in (A) such Lender's Revolving Facility Credit
Exposure exceeding such Lender's Revolving Facility Commitment or (B) the
Revolving Facility Credit Exposure exceeding the total Revolving Facility
Commitments, such Revolving Facility Loans to be made in (x) Dollars if to
any Revolving Borrower other than a Foreign Subsidiary and (y) in Euros or
Dollars, at the election of the applicable Borrower, if to any Foreign
Revolving Borrower, provided that the aggregate Revolving Facility Credit
Exposure with respect to any Revolving Borrower shall not exceed such
Revolving Borrower's Maximum Credit Limit; within the foregoing limits and
subject to the terms and conditions set forth herein, the Revolving
Borrowers may borrow, prepay and reborrow Revolving Facility Loans; and
(c) to make revolving loans to a CL Borrower (as specified in the
related Borrowing Request if incurred on or after the Restructuring Date)
in Dollars from time to time during the CL Availability Period in an
aggregate amount that will not result in (A) such Lender's CL Exposure
exceeding such Lender's Credit-Linked Commitment or (B) the CL Exposure
exceeding the Total Credit-Linked Commitment; within the foregoing limits
and subject to the terms and conditions set forth herein, the CL Borrowers
may borrow, repay and reborrow CL Loans.
SECTION 2.02(A) LOANS AND BORROWINGS. (a) Each Loan shall be made as
part of a Borrowing consisting of Loans under the same Facility and of the same
Type made by the Lenders ratably in accordance with their respective Commitments
under the applicable Facility (or, in the case of Swingline Loans, in accordance
with their respective Swingline Dollar Commitments or Swingline Euro
Commitments, as applicable); PROVIDED, HOWEVER, that Revolving Facility Loans
and CL Loans shall be made by the Revolving Facility Lenders and CL Lenders, as
the case may be, ratably in accordance with their respective Revolving Facility
Percentages or CL Percentages, as the case may be, on the date such Loans are
made hereunder. The failure of any Lender to make any Loan required to be made
by it shall not relieve any other Lender of its obligations hereunder; PROVIDED
that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.14, (i) each Borrowing denominated in
Dollars (other than a Swingline Dollar Borrowing) shall be comprised entirely of
ABR Loans or Eurocurrency Loans as the applicable Borrower may request in
accordance herewith and (ii) each Borrowing denominated in Euros shall be
comprised entirely of Eurocurrency Loans. Each Swingline Dollar Borrowing shall
be an ABR Borrowing. Each Swingline Euro Borrowing shall be comprised entirely
of Swingline Euro Loans. Each Lender at its option may make any ABR Loan or
Eurocurrency Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; PROVIDED that any exercise of such option shall not
affect the obligation of the applicable 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 2.15,
-57-
2.17 or 2.21 solely in respect of increased costs resulting from such exercise
and existing at the time of such exercise.
(c) At the commencement of each Interest Period for any
Eurocurrency Revolving Borrowing, such Borrowing shall be in an aggregate amount
that is an integral multiple of the Borrowing Multiple and not less than the
Borrowing Minimum. At the time that each ABR Revolving Borrowing is made, such
Borrowing shall be in an aggregate amount that is an integral multiple of the
Borrowing Multiple and not less than the Borrowing Minimum; PROVIDED that an ABR
Revolving Borrowing may be in an aggregate amount that is equal to the entire
unused balance of the Revolving Facility Commitments or that is required to
finance the reimbursement of an L/C Disbursement as contemplated by Section
2.05(e). Each Swingline Dollar Borrowing and Swingline Euro Borrowing shall be
in an amount that is an integral multiple of the Borrowing Multiple and not less
than the Borrowing Minimum. Borrowings of more than one Type and under more than
one Facility may be outstanding at the same time; PROVIDED that there shall not
at any time be more than a total of (i) eight Eurocurrency Borrowings
outstanding under the Term Loan Facility and (ii) 20 Eurocurrency Borrowings
outstanding under the Revolving Facility and the CL Facility.
(d) Notwithstanding any other provision of this Agreement, no
Borrower shall be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Revolving Facility Maturity Date or Term Loan Maturity Date, as applicable.
SECTION 2.02(B) CREDIT-LINKED DEPOSITS. (a) On the Closing Date, and
subject to the satisfaction of the conditions precedent set forth in Article IV,
each Lender that is a CL Lender on such date shall pay to the Deposit Bank such
CL Lender's Credit-Linked Deposit in the amount of its Credit-Linked Commitment.
The Credit-Linked Deposits shall be held by the Deposit Bank in (or credited to)
the Credit-Linked Deposit Account, and no Person other than the Deposit Bank
shall have a right of withdrawal from the Credit-Linked Deposit Account or any
other right or power with respect to the Credit-Linked Deposits. Notwithstanding
anything herein to the contrary, the funding obligation of each CL Lender in
respect of its participation in CL Credit Events shall be satisfied in full upon
the funding of its Credit-Linked Deposit. Each of the Deposit Bank, the
Administrative Agent, each Issuing Bank and each CL Lender hereby acknowledges
and agrees (i) that each CL Lender is funding its Credit-Linked Deposit to the
Deposit Bank for application in the manner contemplated by Section 2.06(a)
and/or 2.05(e), (ii) the Deposit Bank may invest the Credit-Linked Deposits in
such investments as may be determined from time to time by the Deposit Bank and
(iii) the Deposit Bank has agreed to pay to each CL Lender a return on its
Credit-Linked Deposit (except (x) during periods when such Credit-Linked
Deposits are used to (x) fund CL Loans or (y) reimburse an Issuing Lender with
respect to Drawings on CL Letters of Credit or (y) as otherwise provided in
Sections 2.02(B)(c) and (d)) equal at any time to the Adjusted LIBO Rate for
Dollar Term Loans for the Interest Period in effect for the Credit-Linked
Deposits at such time less the Credit-Linked Deposit Cost Amount at such time.
Such interest will be paid to the CL Lenders by the Deposit Bank at the
applicable Adjusted LIBO Rate for an Interest Period of one month (or at an
amount determined in accordance with Section 2.02(B)(c) or (d), as applicable)
less, in each case, the Credit-Linked Deposit Cost Amount in arrears on each CL
Interest Payment Date.
-58-
(b) No Loan Party shall have any right, title or interest in or to
the Credit-Linked Deposit Account or the Credit-Linked Deposits and no
obligations with respect thereto (except to repay CL Loans and to refund
portions thereof used to reimburse an Issuing Lender with respect to Drawings on
CL Letters of Credit as provided in Section 2.05(e)), it being acknowledged and
agreed by the parties hereto that the funding of the Credit-Linked Deposits by
the CL Lenders, and the application of the Credit-Linked Deposits in the manner
contemplated by Section 2.05(e) constitute agreements among the Deposit Bank,
the Administrative Agent, each Issuing Bank and each CL Lender with respect to
the participation in the CL Letters of Credit and do not constitute any loan or
extension of credit to any Borrower.
(c) If the Deposit Bank is not offering Dollar deposits (in the
applicable amounts) in the London interbank market, or the Deposit Bank
determines that adequate and fair means do not otherwise exist for ascertaining
the Adjusted LIBO Rate for the Credit-Linked Deposits (or any part thereof),
then the Credit-Linked Deposits (or such parts, as applicable) shall be invested
so as to earn a return equal to the greater of the Federal Funds Rate and a rate
determined by the Deposit Bank in accordance with banking industry rules on
interbank compensation.
(d) If any CL Loan is repaid by the respective CL Borrower, or if
any L/C Disbursement under a CL Letter of Credit that has been funded by the CL
Lenders from the Credit-Linked Deposits as provided in Section 2.05(e) shall be
reimbursed by the respective CL Borrower, on a day other than on the last day of
an Interest Period applicable to the Credit-Linked Deposits, the Administrative
Agent shall, upon receipt thereof, pay over such amounts to the Deposit Bank
which will invest such amounts in overnight or short-term cash equivalent
investments until the end of the Interest Period at the time in effect and
respective CL Borrower shall pay to the Deposit Bank, upon the Deposit Bank's
request therefor, the amount, if any, by which the interest accrued on a like
amount of the Credit-Linked Deposits at the Adjusted LIBO Rate for Term Loans
for the Interest Period in effect therefor shall exceed the interest earned
through the investment of the amount so reimbursed for the period from the date
of such reimbursement through the end of the applicable Interest Period, as
determined by the Deposit Bank (such determination shall, absent manifest error,
be presumed correct and binding on all parties hereto) and set forth in the
request for payment delivered to CAC. In the event that the respective CL
Borrower shall fail to pay any amount due under this Section 2.02(B)(d), the
interest payable by the Deposit Bank to the CL Lenders on their Credit-Linked
Deposits under Section 2.02 (B)(a) shall be correspondingly reduced and the CL
Lenders shall without further act succeed, ratably in accordance with their CL
Percentages, to the rights of the Deposit Bank with respect to such amount due
from the respective CL Borrower. All repayments of CL Loans and all
reimbursements of L/C Disbursements under a CL Letter of Credit that has been
funded by the CL Lenders from the Credit-Linked Deposits, in each case received
by the Administrative Agent prior to the termination of the Total Credit-Linked
Commitment, shall be paid over to the Deposit Bank which will deposit same in
the Credit-Linked Deposit Account.
SECTION 2.03 REQUESTS FOR BORROWINGS. To request any Borrowing, the
applicable Borrower shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurocurrency Borrowing, not later than 11:00
a.m., Local Time, three Business Days before the date of the proposed Borrowing
or (b) in the case of an ABR Borrowing, not later than 12:00 noon, Local Time,
one Business Day before the date of the proposed Borrowing; PROVIDED that
-59-
any such notice of an ABR Revolving Borrowing to finance the reimbursement of an
L/C Disbursement as contemplated by Section 2.05(e) may be given not later than
11:00 a.m., Local Time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the applicable Borrower. Each such telephonic and written Borrowing Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrower requesting such Borrowing;
(ii) whether the requested Borrowing is to be a Revolving Facility
Borrowing, Term Borrowing or CL Borrowing;
(iii) the aggregate amount of the requested Borrowing (expressed
in Dollars or, if permitted to be borrowed in Euros, in Euros);
(iv) the date of such Borrowing, which shall be a Business Day;
(v) in the case of a Borrowing denominated in Dollars,
whether such Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing;
(vi) in the case of a Eurocurrency Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
clause (a) of the definition of the term "Interest Period"; and
(vii) the location and number of the applicable Borrower's account
to which funds are to be disbursed.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing, unless such Borrowing (i) is denominated in
Euros and (ii) is being requested by a Foreign Revolving Borrower, in which case
such Borrowing shall be a Eurocurrency Borrowing. If no Interest Period is
specified with respect to any requested Eurocurrency Borrowing, then the
applicable Borrower shall be deemed to have selected an Interest Period of one
month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender
of the details thereof and of the amount of such Lender's Loan to be made as
part of the requested Borrowing.
SECTION 2.04 SWINGLINE LOANS. (a) Subject to the terms and conditions
set forth herein, (i) each Swingline Dollar Lender agrees to make Swingline
Dollar Loans to any Domestic Swingline Borrower from time to time during the
Revolving Availability Period, in an aggregate principal amount at any time
outstanding for all Swingline Dollar Loans that will not result in (x) the
aggregate principal amount of outstanding Swingline Dollar Loans made by such
Swingline Dollar Lender exceeding such Swingline Dollar Lender's Swingline
Dollar Commitment or (y) the Revolving Facility Credit Exposure exceeding the
total Revolving Facility Commitments and (ii) each Swingline Euro Lender agrees
to make Swingline Euro Loans to any Foreign Swingline Borrower from time to time
during the Revolving Availability Period, in an aggregate principal amount at
any time outstanding for all Swingline Euro Loans that will not result in (x)
the aggregate principal amount of outstanding Swingline Euro Loans
-60-
made by such Swingline Euro Lender exceeding such Swingline Euro Lender's
Swingline Euro Commitment or (y) the sum of the Revolving Facility Credit
Exposure exceeding the total Revolving Facility Commitments; PROVIDED that no
Swingline Lender shall be required to make a Swingline Loan to refinance an
outstanding Swingline Dollar Borrowing or Swingline Euro Borrowing. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrowers may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Dollar Borrowing or Swingline Euro
Borrowing, the applicable Borrower shall notify the Administrative Agent and the
applicable Swingline Lender of such request by telephone (confirmed by a
Swingline Borrowing Request by telecopy), not later than 11:00 a.m., Local Time,
on the day of a proposed Swingline Borrowing (or in the case of a Swingline Euro
Borrowing, 10:00 a.m. New York time, on the Business Day preceding the date of
the proposed Swingline Euro Borrowing). Each such notice and Swingline Borrowing
Request shall be irrevocable and shall specify (i) the Borrower requesting such
Borrowing, (ii) the requested date (which shall be a Business Day), (iii) the
amount of the requested Swingline Dollar Borrowing (expressed in Dollars) or
Swingline Euro Borrowing (expressed in Euros), as applicable, and (iv) in the
case of a Swingline Euro Borrowing, the Interest Period to be applicable
thereto, which shall be a period contemplated by clause (b) of the definition of
the term "Interest Period." The Administrative Agent shall promptly advise each
Swingline Dollar Lender (in the case of a notice relating to a Swingline Dollar
Borrowing) or each Swingline Euro Lender (in the case of a notice relating to a
Swingline Euro Borrowing) of any such notice received from a Borrower and the
amount of such Swingline Lender's Swingline Loan to be made as part of the
requested Swingline Dollar Borrowing or Swingline Euro Borrowing, as applicable.
Each Swingline Dollar Lender shall make each Swingline Dollar Loan to be made by
it hereunder in accordance with Section 2.04(a) on the proposed date thereof by
wire transfer of immediately available funds by 3:00 p.m., Local Time, to the
account of the Administrative Agent by notice to the Swingline Dollar Lenders.
The Administrative Agent will make such Swingline Dollar Loans available to the
applicable Domestic Swingline Borrower by promptly crediting the amounts so
received, in like funds, to the general deposit account of the applicable
Domestic Swingline Borrower with the Administrative Agent (or, in the case of a
Swingline Dollar Borrowing made to finance the reimbursement of an L/C
Disbursement as provided in Section 2.05(e), by remittance to the applicable
Issuing Bank). Each Swingline Euro Lender shall make each Swingline Euro Loan to
be made by it hereunder in accordance with Section 2.04(a) on the proposed date
thereof by wire transfer of immediately available funds by 3:00 p.m., Local
Time, to the account of the Administrative Agent most recently designated by it
for such purpose by notice to the Swingline Euro Lenders. The Administrative
Agent will make such Swingline Euro Loans available to the applicable Foreign
Swingline Borrower by (i) promptly crediting the amounts so received, in like
funds, to the general deposit account with the Administrative Agent of the
applicable Foreign Swingline Borrower most recently designated to the
Administrative Agent or (ii) by wire transfer of the amounts received in
immediately available funds to the general deposit account of the applicable
Foreign Swingline Borrower most recently designated to the Administrative Agent.
(c) A Swingline Lender may by written notice given to the
Administrative Agent (and to the other Swingline Dollar Lenders or Swingline
Euro Lenders, as applicable) not later than 10:00 a.m., Local Time, on any
Business Day require the Revolving Facility Lenders to acquire participations on
such Business Day in all or a portion of the outstanding Swingline
-61-
Loans made by it. Such notice shall specify the aggregate amount of such
Swingline Loans in which the Revolving Facility Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will give notice
thereof to each such Lender, specifying in such notice such Lender's Revolving
Facility Percentage of such Swingline Loan or Loans. Each Revolving Facility
Lender hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above, to pay to the Administrative Agent, for the account of the
applicable Swingline Lender, such Revolving Facility Lender's Revolving Facility
Percentage of such Swingline Loan or Loans. Each Revolving Facility Lender
acknowledges and agrees that its respective obligation to acquire participations
in Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Revolving Facility Lender shall comply with its
obligation under this paragraph by wire transfer of immediately available funds,
in the same manner as provided in Section 2.06 with respect to Loans made by
such Revolving Facility Lender (and Section 2.06 shall apply, MUTATIS MUTANDIS,
to the payment obligations of the Lenders), and the Administrative Agent shall
promptly pay to the applicable Swingline Lender the amounts so received by it
from the Revolving Facility Lenders. The Administrative Agent shall notify the
applicable Borrower of any participations in any Swingline Loan acquired
pursuant to this paragraph (c), and thereafter payments in respect of such
Swingline Loan shall be made to the Administrative Agent and not to the
applicable Swingline Lender. Any amounts received by a Swingline Lender from the
applicable Borrower (or other party on behalf of such Borrower) in respect of a
Swingline Loan after receipt by such Swingline Lender of the proceeds of a sale
of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the Revolving Facility Lenders that
shall have made their payments pursuant to this paragraph and to such Swingline
Lender, as their interests may appear; PROVIDED that any such payment so
remitted shall be repaid to such Swingline Lender or to the Administrative
Agent, as applicable, if and to the extent such payment is required to be
refunded to the applicable Borrower for any reason. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the applicable Borrower of any default in the payment thereof.
SECTION 2.05 LETTERS OF CREDIT.
(a) GENERAL. Each Existing Letter of Credit shall, on the Closing
Date (if the issuer is an L/C Lender on the Closing Date) or on such date
thereafter and prior to June 30, 2004 that the issuer thereof first becomes an
L/C Lender, constitute a letter of credit issued hereunder for all purposes of
this Agreement and the other Loan Documents and shall constitute a CL Letter of
Credit or RF Letter of Credit as specified on SCHEDULE 2.05(a). In addition,
subject to the terms and conditions set forth herein, the Term Borrower may
request the issuance of Dollar Letters of Credit and Euro Letters of Credit (x)
in the case of RF Letters of Credit, for its own account or for the account of
any of the other Revolving Borrowers and (y) in the case of CL Letters of
Credit, for the account of a CL Borrower (as specified in the related Request to
Issue if to be issued on or after the Restructuring Date), in each case in a
form reasonably acceptable to the applicable Issuing Bank, at any time and from
time to time during the Revolving Availability Period and prior to the date that
is five Business Days prior to the Revolving Facility Maturity Date. All Letters
of Credit shall be issued on a sight basis only.
-62-
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN
CONDITIONS. To request the issuance of a Letter of Credit, the Term Borrower
shall hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable Issuing Bank) to
the applicable Issuing Bank, with a copy to the Administrative Agent at least
two Business Days (or such shorter period agreed to by the Issuing Bank) in
advance of the requested date of issuance a request in the form of EXHIBIT B-2
(a "REQUEST TO ISSUE") for the issuance of a Letter of Credit, which Request to
Issue shall specify, INTER ALIA, whether the requested Letter of Credit is to be
a CL Letter of Credit or an RF Letter of Credit. If requested by the applicable
Issuing Bank, the Term Borrower also shall submit a letter of credit application
on such Issuing Bank's standard form in connection with any request for a Letter
of Credit and in the event of any inconsistency between the terms and conditions
of this Agreement and the terms and conditions of any such form of letter of
credit application, the terms and conditions of this Agreement shall control. An
RF Letter of Credit shall be issued, amended, renewed or extended only if after
giving effect thereto (i) the Revolving L/C Exposure shall not exceed
$75,000,000, (ii) the Revolving Facility Credit Exposure shall not exceed the
total Revolving Facility Commitments and (iii) the aggregate Revolving Facility
Credit Exposure with respect to any Revolving Borrower shall not exceed the
Maximum Credit Limit for such Revolving Borrower, and a CL Letter of Credit
shall be issued, amended, renewed or extended only if after giving effect
thereto the CL Exposure would not exceed the Total Credit-Linked Commitment at
such time, PROVIDED that no RF Letter of Credit shall be issued unless a CL
Letter of Credit could not be issued in lieu thereof, giving effect to the
aforesaid limitations. In the event that an RF Letter of Credit is outstanding
at a time when there is availability to support the issuance of a new CL Letter
of Credit in accordance with the terms of this Agreement in a stated amount at
least equal to the stated amount of such RF Letter of Credit, the Term Borrower
shall have the right, upon written notice to the Administrative Agent and the
respective Issuing Bank, to re-designate such RF Letter of Credit as a CL Letter
of Credit, in each case so long as (i) each such CL Letter of Credit may
otherwise be issued in accordance with, and will not violate, the above
limitations and requirements of this Section and (ii) the Term Borrower
certifies in writing to the Administrative Agent and the respective Issuing Bank
that the conditions specified in Sections 4.01(b) and (c) are then satisfied.
Upon satisfaction of the aforesaid conditions, (x) the respective Issuing Bank
shall re-designate the affected RF Letter of Credit as a CL Letter of Credit,
and (y) a new CL Letter of Credit shall be deemed issued at such time under this
Agreement. No Letter of Credit shall be issued, increased in stated amount, or
renewed or extended without the prior consent of the Administrative Agent, such
consent to be limited to the question of whether such issuance, increase,
renewal or extension is being effected on the terms and conditions of this
Agreement.
(c) EXPIRATION DATE. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year after the
date of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days (or, in the case of a trade Letter of Credit, 30
days) prior to the Revolving Facility Maturity Date; PROVIDED that any standby
Letter of Credit may provide for the automatic renewal thereof for additional
one-year periods (which, in no event, shall extend beyond the date referred to
in clause (ii) of this paragraph (c)).
(d) PARTICIPATIONS. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the
-63-
applicable Issuing Bank or any Lenders, such Issuing Bank hereby grants (x) if
such Letter of Credit is a CL Letter of Credit, to each CL Lender or (y) if such
Letter of Credit is an RF Letter of Credit to each Revolving Facility Lender
(and such CL Lender or Revolving Facility Lender, as the case may be, in its
capacity under this Section 2.05(d), a "PARTICIPANT") and each such Participant
hereby acquires from such Issuing Bank, a participation in such Letter of Credit
equal to such Lender's CL Percentage or Revolving Facility Percentage, as the
case may be, as in effect from time to time of the aggregate amount available to
be drawn under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Facility Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent in Dollars or Euros, as the case may
be, for the account of the applicable Issuing Bank, such Lender's Revolving
Facility Percentage of each LC Disbursement made in respect of an RF Letter of
Credit and, in each case, not reimbursed by the Applicant Party on the date due
as provided in paragraph (e) of this Section, or of any reimbursement payment
required to be refunded to the Applicant Party for any reason. Each Participant
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 any
amendment, renewal or extension of any Letter of Credit or the occurrence and
continuance of a Default or reduction or termination of the Commitments, and, in
the case of a Revolving Facility Lender, that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.
(e) REIMBURSEMENT. If the applicable Issuing Bank shall make any
L/C Disbursement in respect of a Letter of Credit, the applicable Applicant
Party shall reimburse such L/C Disbursement by paying to the Administrative
Agent an amount equal to such L/C Disbursement in Dollars or Euros, as the case
may be, not later than 5:00 p.m., New York City time, on the Business Day
immediately following the date the applicable Applicant Party receives notice
under paragraph (g) of this Section of such L/C Disbursement, PROVIDED that in
the case of any L/C Disbursement under an RF Letter of Credit issued for the
account of a Revolving Borrower, such Revolving Borrower may, subject to the
conditions to borrowing set forth herein, request in accordance with Section
2.03 or 2.04 that such payment be financed (x) if a Dollar Letter of Credit,
with an ABR Revolving Borrowing or Swingline Dollar Borrowing, as applicable, or
(y) if a Euro Letter of Credit, with a Swingline Euro Borrowing in each case, in
an equivalent amount and, to the extent so financed, such Revolving Borrower's
obligation to make such payment shall be discharged and replaced by the
resulting ABR Revolving Borrowing, Swingline Dollar Borrowing or Swingline Euro
Borrowing, as the case may be. If the applicable Applicant Party fails to
reimburse any L/C Disbursement under an RF Letter of Credit when due, then the
Administrative Agent shall promptly notify the applicable Issuing Bank and each
relevant Participant of the applicable L/C Disbursement, the payment then due in
respect thereof and, in the case of each such Participant, such Participant's
Revolving Facility Percentage thereof. Promptly following receipt of such
notice, each Participant shall pay to the Administrative Agent in Dollars or
Euros, as applicable, its Revolving Facility Percentage of the payment then due
from the applicable Applicant Party, in the same manner as provided in Section
2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply,
MUTATIS MUTANDIS, to the payment obligations of the Participants), and the
Administrative Agent shall promptly pay to the applicable Issuing Bank in
Dollars or Euros, as applicable, the amounts so received by it from such
Participants. In the event that an Issuing Lender makes any LC Disbursement
under any CL Letter of Credit issued by it and the respective CL Borrower shall
-64-
not have reimbursed such amount in full to such Issuing Lender as provided above
and such Issuing Lender has notified the Administrative Agent thereof, each CL
Lender hereby irrevocably authorizes the Administrative Agent to reimburse on
the date of (or if received after 1:00 P.M. (New York time) on such date, on the
Business Day following the date of) receipt by the Administrative Agent of such
notice such Issuing Lender for such amount solely by requesting the Deposit Bank
to withdraw such CL Lender's CL Percentage of the Credit-Linked Deposits on
deposit with the Deposit Bank in the Credit-Linked Deposit Account and to pay
same over to the Administrative Agent, the Deposit Bank hereby agreeing to
effect such a withdrawal and all other withdrawals and payments requested by the
Administrative Agent pursuant to the terms of this Agreement. All reimbursements
of Issuing Banks by Revolving Facility Lenders or CL Lenders (through
application of Credit-Linked Deposits) shall be made as provided herein
notwithstanding the occurrence of a CAM Exchange Date after the L/C Disbursement
and prior to such reimbursement. Promptly following receipt by the
Administrative Agent of any payment from the applicable Applicant Party pursuant
to this paragraph, the Administrative Agent shall distribute such payment to the
applicable Issuing Bank or, to the extent that Participants have made payments
pursuant to this paragraph to reimburse such Issuing Bank, then to such Lenders
and such Issuing Bank as their interests may appear (it being understood and
agreed that any such payment to be made pursuant to this Section 2.05(e) to a
Participant which is a CL Lender shall be made by such Issuing Lender to the
Administrative Agent for the account of such CL Lender and paid over to the
Deposit Bank for deposit in the Credit-Linked Deposit Account). Any payment made
by a Revolving Facility Lender pursuant to this paragraph to reimburse an
Issuing Bank for any L/C Disbursement (other than the funding of an ABR
Revolving Loan or a Swingline Dollar Borrowing as contemplated above) shall
constitute a Loan and no payment shall relieve the Applicant Party of its
obligation to reimburse each L/C Disbursement.
(f) OBLIGATIONS ABSOLUTE. The obligation of the applicable
Applicant Party to reimburse L/C Disbursements as provided in paragraph (e) of
this Section shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement under any and
all circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit or this Agreement, or any term or
provision therein, (ii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment by
the applicable Issuing 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 or (iv) any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of this
Section, constitute a legal or equitable discharge of, or provide a right of
setoff against, the Applicant Party's obligations hereunder; PROVIDED that, in
each case, payment by the Issuing Bank shall not have constituted gross
negligence or willful misconduct as determined by a final and nonappealable
decision of court of competent jurisdiction. Neither the Administrative Agent,
the Lenders nor any Issuing Bank, nor any of their Related Parties, shall have
any liability or responsibility by reason of or in connection with the issuance
or transfer of any Letter of Credit or any payment or failure to make any
payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence
-65-
arising from causes beyond the control of such Issuing Bank; PROVIDED that the
foregoing shall not be construed to excuse the applicable Issuing Bank from
liability to an Applicant Party to the extent of any direct damages (as opposed
to consequential damages, claims in respect of which are hereby waived by each
Applicant Party to the extent permitted by applicable law) suffered by such
Applicant Party that are determined by a court having jurisdiction to have been
caused by (i) such Issuing Bank's failure to exercise care when determining
whether drafts and other documents presented under a Letter of Credit comply
with the terms thereof or (ii) such Issuing Bank's refusal to issue a Letter of
Credit in accordance with the terms of this Agreement. The parties hereto
expressly agree that, in the absence of gross negligence or willful misconduct
as determined by a final and nonappealable decision of court of competent
jurisdiction on the part of the applicable Issuing Bank, such Issuing Bank shall
be deemed to have exercised care in each such determination and each refusal to
issue a Letter of Credit. In furtherance of the foregoing and without limiting
the generality thereof, the parties agree that, with respect to documents
presented which appear on their face to be in substantial compliance with the
terms of a Letter of Credit, the applicable Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) DISBURSEMENT PROCEDURES. The applicable Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. Such Issuing Bank shall
promptly notify the Administrative Agent, the Applicant Party and the Term
Borrower (if the Term Borrower is not the Applicant Party) by telephone
(confirmed by telecopy) of such demand for payment and whether such Issuing Bank
has made or will make a L/C Disbursement thereunder; PROVIDED that any failure
to give or delay in giving such notice shall not relieve the Applicant Party of
its obligation to reimburse such Issuing Bank and the Revolving Facility Lenders
with respect to any such L/C Disbursement.
(h) INTERIM INTEREST. If an Issuing Bank shall make any L/C
Disbursement, then, unless the applicable Applicant Party shall reimburse such
L/C Disbursement in full on the date such L/C Disbursement is made, the unpaid
amount thereof shall bear interest, for each day from and including the date
such L/C Disbursement is made to but excluding the date that the applicable
Applicant Party reimburses such L/C Disbursement, at the rate per annum then
applicable to ABR Revolving Loans PROVIDED that, in the case of a L/C
Disbursement made that is a Euro Letter of Credit, the amount of interest due
with respect thereto shall (A) be payable in Euros and (B) bear interest at a
rate equal to the rate reasonably determined by the applicable Issuing Bank to
be the cost to such Issuing Bank of funding such L/C Disbursement plus the
Applicable Margin applicable to Eurocurrency Revolving Loans at such time; and
PROVIDED, FURTHER, that, if such L/C Disbursement is not reimbursed by the
applicable Applicant Party when due pursuant to paragraph (e) of this Section,
then Section 2.13(c) shall apply, with the rate per annum for L/C Disbursements
made in respect of a CL Letter of Credit from the date any payment is made to
the Issuing Lender on behalf of the CL Lenders shall be 2% in excess of the rate
per annum then applicable to ABR Term Loans. Interest accrued pursuant to this
paragraph shall be for the account of the applicable Issuing Bank, except that
interest accrued on and after the date of payment by any Revolving Facility
Lender or by or on behalf of any CL Lender pursuant to paragraph (e) of this
Section to reimburse such Issuing Bank shall be for the account
-66-
of such Revolving Facility Lender or CL Lender, as the case may be, to the
extent of such payment.
(i) REPLACEMENT OF AN ISSUING BANK. An Issuing Bank may be
replaced at any time by written agreement among the Term Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank.
The Administrative Agent shall notify the Lenders of any such replacement of an
Issuing Bank. At the time any such replacement shall become effective, the Term
Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.12. From and after the effective date of any
such replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of the replaced Issuing Bank under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the replacement of an Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of such Issuing Bank under this Agreement with
respect to Letters of Credit issued by it prior to such replacement but shall
not be required to issue additional Letters of Credit.
(j) CASH COLLATERALIZATION. If any Event of Default shall occur
and be continuing, (i) in the case of an Event of Default described in Section
7.01(h) or (i), on the Business Day or (ii) in the case of any other Event of
Default, on the fifth Business Day, following the date on which the Term
Borrower receives notice from the Administrative Agent (or, if the maturity of
the Loans has been accelerated, Revolving Facility Lenders and/or CL Lenders
with Revolving L/C Exposure and/or CL Percentages representing greater than 50%
of the total Revolving L/C Exposure and total CL Percentages), as the case may
be, demanding the deposit of cash collateral pursuant to this paragraph, the
Term Borrower and, to the extent relating to CL Exposure, CAC (on a joint and
several basis with the Term Borrower) agree to deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Revolving Facility Lenders and the CL Lenders, an amount in
Dollars in cash equal to the Revolving L/C Exposure and/or CL Exposure as of
such date plus any accrued and unpaid interest thereon; PROVIDED that the
portion of such amount attributable to undrawn Euro Letters of Credit or L/C
Disbursements in Euros shall be deposited with the Administrative Agent in Euros
in the actual amounts of such undrawn Letters of Credit and L/C Disbursements.
The obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable in
Dollars or Euros, as applicable, without demand or other notice of any kind. The
applicable Applicant Party also shall deposit cash collateral pursuant to this
paragraph as and to the extent required by Section 2.11(b). Each such deposit
pursuant to this paragraph or pursuant to Section 2.11(b) shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrowers under this Section 2.05. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole
discretion of (i) for so long as an Event of Default shall be continuing, the
Administrative Agent and (ii) at any other time, the Term Borrower, in each
case, in Permitted Investments and at the risk and expense of the Term Borrower,
such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse each Issuing
-67-
Bank for L/C Disbursements for which such Issuing Bank has not been reimbursed
and, to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrowers for the Revolving L/C Exposure and CL
Exposure at such time or, if the maturity of the Loans has been accelerated (but
subject to the consent of Revolving Facility Lenders with Revolving L/C Exposure
representing greater than 50% of the total Revolving L/C Exposure and of CL
Lenders with CL Percentages aggregating more than 50%), be applied to satisfy
other obligations of the Borrowers under this Agreement. If an Applicant Party
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 such Applicant Party within three Business Days
after all Events of Default have been cured or waived. If a Borrower is required
to provide an amount of cash collateral hereunder pursuant to Section 2.11(b),
such amount (to the extent not applied as aforesaid) shall be returned to such
Borrower as and to the extent that, after giving effect to such return, the
Borrowers would remain in compliance with Section 2.11(b) and no Event of
Default shall have occurred and be continuing.
(k) ADDITIONAL ISSUING BANKS. From time to time, the Term Borrower
may by notice to the Administrative Agent designate up to two Lenders (in
addition to DBNY and any Lender that is an issuer of Existing Letters of Credit)
that agree (in their sole discretion) to act in such capacity and are reasonably
satisfactory to the Administrative Agent as Issuing Banks. Each such additional
Issuing Bank shall execute a counterpart of this Agreement upon the approval of
the Administrative Agent (which approval shall not be unreasonably withheld) and
shall thereafter be an Issuing Bank hereunder for all purposes.
(l) REPORTING. Promptly upon the issuance or amendment by it of a
standby Letter of Credit, an Issuing Bank shall notify the Term Borrower and the
Administrative Agent, in writing, of such issuance or amendment and such notice
shall be accompanied by a copy of such issuance or amendment. Upon receipt of
such notice, the Administrative Agent shall notify each Lender, in writing, of
such issuance or amendment, and if so requested by a Lender the Administrative
Agent shall provide such Lender with a copy of such issuance or amendment. Each
Issuing Bank shall on the first Business Day of each calendar week during which
any CL Letters of Credit and/or RF Letters of Credit issued by such Issuing Bank
are outstanding provide the Administrative Agent, by facsimile, with a report
detailing the aggregated daily outstandings of each such Letter of Credit issued
by it.
(m) Notwithstanding any other provision of this Agreement, if,
after the Closing Date, any Change in Law shall make it unlawful for an Issuing
Bank to issue Letters of Credit denominated in Euros, then by prompt written
notice thereof to the L/C Borrowers and to the Administrative Agent (which
notice shall be withdrawn whenever such circumstances no longer exist), such
Issuing Bank may declare that Letters of Credit will not thereafter (for the
duration of such declaration) be issued by it in Euros.
SECTION 2.06 FUNDING OF BORROWINGS. (a) Each Lender shall make each
Loan (other than CL Loans) to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds by 12:00 noon, Local
Time, to the account of the Administrative Agent most recently designated by it
for such purpose by notice to the Lenders; PROVIDED that Swingline Loans shall
be made as provided in Section 2.04. Each CL Lender hereby irrevocably
authorizes the Administrative Agent to fund each CL Loan to be made by it
hereunder solely by
-68-
requesting the Deposit Bank to withdraw such CL Lender's CL Percentage of the
Credit-Linked Deposits on deposit with the Deposit Bank in the Credit-Linked
Deposit Account and to pay same over to it. The Administrative Agent will make
the proceeds of funds made available to it pursuant to the two preceding
sentences available to the applicable Borrower by promptly crediting the amounts
so received, in like funds, to an account of the applicable Borrower maintained
with the Administrative Agent (i) in New York City, in the case of Loans
denominated in Dollars, or (ii) in London, in the case of Loans denominated in
Euros and designated by the applicable Borrower in the applicable Borrowing
Request; PROVIDED that ABR Revolving Loans, Swingline Dollar Borrowings and
Swingline Euro Borrowings made to finance the reimbursement of a L/C
Disbursement as provided in Section 2.05(e) shall be remitted by the
Administrative Agent to the applicable Issuing Bank.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing of Revolving Facility
Loans and/or Term Loans that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the applicable Borrower a corresponding amount. In
such event, if a Lender has not in fact made its share of the applicable
Borrowing of Revolving Facility Loans or Term Loans available to the
Administrative Agent, then the applicable Lender and the applicable Borrower
severally agree to pay to the Administrative Agent forthwith on demand (without
duplication) such corresponding amount (with demand to be first made on such
Lender if legally possible) with interest thereon, for each day from and
including the date such amount is made available to the applicable Borrower to
but excluding the date of payment to the Administrative Agent, at (i) in the
case of such Lender, (x) the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation (in the case of a Borrowing denominated in Dollars) or
(y) the rate reasonably determined by the Administrative Agent to be the cost to
it of funding such amount (in the case of a Borrowing denominated in Euros) or
(ii) in the case of the applicable Borrower, the interest rate applicable to ABR
Loans (in the case of a Borrowing denominated in Dollars) or the rate reasonably
determined by the Administrative Agent to be the cost to it of funding such
amount (in the case of a Borrowing denominated in Euros). If such Lender pays
such amount to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing.
SECTION 2.07 INTEREST ELECTIONS. (a) Each Borrowing initially shall
be of the Type specified in the applicable Borrowing Request and, in the case of
a Eurocurrency Borrowing, shall have an initial Interest Period as specified in
such Borrowing Request. Thereafter, the applicable Borrower may elect to convert
such Borrowing to a different Type, in the case of Borrowings denominated in
Dollars, or to continue such Borrowing and, in the case of a Eurocurrency
Borrowing, may elect Interest Periods therefor, all as provided in this Section.
The applicable Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate
Borrowing. This Section shall not apply to Swingline Euro Borrowings or
Swingline Dollar Borrowings, which may not be converted or continued.
-69-
(b) To make an election pursuant to this Section, the applicable
Borrower shall notify the Administrative Agent of such election by telephone by
the time that a Borrowing Request would be required under Section 2.03 if such
Borrower were requesting a Borrowing of the Type and denominated in Euros
resulting from such election to be made on the effective date of such election.
Each such telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Interest Election Request in a form approved by the Administrative Agent
and signed by the applicable Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing; PROVIDED that the resulting Borrowing is required
to be a Eurocurrency Borrowing in the case of a Borrowing denominated in
Euros; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by clause (a) of the
definition of the term "Interest Period."
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the applicable Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request,
the Administrative Agent shall advise each Lender to which such Interest
Election Request relates of the details thereof and of such Lender's portion of
each resulting Borrowing.
(e) If the applicable Borrower fails to deliver a timely Interest
Election Request with respect to a Eurocurrency Borrowing prior to the end of
the Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
continued as a Eurocurrency Borrowing with an Interest Period of one month's
duration commencing on the last day of such Interest Period. Notwithstanding any
contrary provision hereof, if an Event of Default has occurred and is continuing
and the Administrative Agent, at the written request (including a request
through electronic means) of the Required Lenders, so notifies the applicable
Borrower, then, so long as an Event of Default is continuing (i) except as
provided in clause (iii) below, no outstanding Borrowing may be converted to or
continued as a Eurocurrency Borrowing, (ii) unless repaid, each Eurocurrency
Borrowing denominated in Dollars shall be converted to an ABR Borrowing at the
end of the
-70-
Interest Period applicable thereto and (iii) unless repaid, each Eurocurrency
Borrowing denominated in Euros shall be continued as a Eurocurrency Borrowing
with an Interest Period of one month's duration.
SECTION 2.08 TERMINATION AND REDUCTION OF COMMITMENTS. (a) All
Commitments shall terminate on the Early Termination Date should such Date
occur. Unless previously terminated, the Revolving Facility Commitments and the
Credit-Linked Commitments shall terminate on the Revolving Facility Maturity
Date. The Term Loan Commitment of each Term Lender shall terminate on the date
of each incurrence of Term Loans in the amount of Term Loans made by it on such
date, and all remaining Term Loan Commitments will, unless previously
terminated, terminate at 5 p.m. New York City time on the six month anniversary
of the Closing Date.
(b) The Term Borrower (on behalf of itself and, in connection with
reductions to the Revolving Facility Commitments, all other Revolving Borrowers)
may at any time terminate, or from time to time reduce, the Revolving Facility
Commitments or the Term Loan Commitments, as the case may be; PROVIDED that (i)
each such reduction shall be in an amount that is an integral multiple of $1.0
million and not less than $5.0 million (or, if less, the remaining amount of the
Revolving Facility Commitments or Term Loans Commitments, as the case may be)
and (ii) the Term Borrower shall not terminate or reduce the Revolving Facility
Commitments if, after giving effect to any concurrent prepayment of the
Revolving Facility Loans in accordance with Section 2.11, the Revolving Facility
Credit Exposure would exceed the total Revolving Facility Commitments.
(c) The Term Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Revolving Facility Commitments, Term Loan
Commitments and/or Credit-Linked Commitments under paragraph (b) or (d) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the applicable Lenders of the contents thereof. Each notice
delivered by the Term Borrower pursuant to this Section shall be irrevocable;
PROVIDED that a notice of termination of the Revolving Facility Commitments,
Term Loan Commitments and/or Credit-Linked Commitments delivered by the Term
Borrower may state that such notice is conditioned upon the effectiveness of
other credit facilities, in which case such notice may be revoked by the Term
Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination or reduction
of Commitments shall be permanent. Each reduction of the Commitments under any
Facility shall be made ratably among the Lenders in accordance with their
respective Commitments under such Facility.
(d) The Term Borrower (on behalf of itself and CAC) shall have the
right, at any time or from time to time, without premium or penalty to terminate
the Total Unutilized Credit-Linked Commitment in whole, or reduce it in part, in
an integral multiple of $1.0 million and not less than $5.0 million (or if less
the remaining amount of the Credit-Linked Commitments) in the case of partial
reductions to the Total Unutilized Credit-Linked Commitment, PROVIDED that each
such reduction shall apply proportionately to permanently reduce the
Credit-Linked Commitment of each CL Lender. At the time of any termination or
reduction of the Total Credit-Linked Commitment pursuant to this Section 2.08(d)
or on the
-71-
Revolving Facility Maturity Date, the Administrative Agent shall request the
Deposit Bank to withdraw from the Credit-Linked Deposit Account and to pay same
over to it, and shall return to the CL Lenders (ratably in accordance with their
respective CL Percentages) the CL Lenders' Credit-Linked Deposits in an
aggregate amount equal to such reduction or the amount of such Commitment being
terminated, as the case may be.
SECTION 2.09 REPAYMENT OF LOANS; EVIDENCE OF DEBT, ETC.(a) The Term
Borrower hereby unconditionally promises to pay (i) on the Revolving Facility
Maturity Date in Euros or Dollars, as applicable, to the Administrative Agent
for the account of each Revolving Facility Lender the then unpaid principal
amount of each Revolving Facility Loan made to the Term Borrower and (ii) in
Dollars to the Administrative Agent for the account of each Lender the then
unpaid principal amount of each Term Loan of such Lender as provided in Section
2.10. Each CL Borrower hereby unconditionally promises to pay on the Revolving
Facility Maturity Date in Dollars to the Administrative Agent for the account of
each CL Lender the then unpaid principal amount of each CL Loan of such CL
Lender owing by such CL Borrower. Each Domestic Swingline Borrower hereby
unconditionally promises to pay in Dollars to each Swingline Lender the then
unpaid principal amount of each Swingline Loan made to such Borrower on the
earlier of the Revolving Facility Maturity Date and the first date after such
Swingline Loan is made that is the 15th or last day of a calendar month and is
at least five Business Days after such Swingline Loan is made; PROVIDED that on
each date that a Revolving Facility Borrowing is made by such Borrower, then
such Borrower shall repay all its Swingline Loans then outstanding. Each
Revolving Borrower hereby unconditionally promises to pay in Dollars (or in
Euros if the Revolving Facility Borrowing was made in Euros) to the
Administrative Agent for the account of each Revolving Facility Lender the then
unpaid principal amount of each Revolving Facility Loan to such Borrower on the
Revolving Facility Maturity Date. Each Foreign Swingline Borrower hereby
unconditionally promises to pay in Euros to each Swingline Euro Lender the then
unpaid principal amount of each Swingline Euro Loan made by such Lender to such
Borrower on the earlier of the Revolving Facility Maturity Date and the last day
of the Interest Period applicable to such Swingline Euro Loan.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of each Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Facility and Type
thereof and the Interest Period (if any) applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iii) any amount received by the
Administrative Agent hereunder for the account of the Lenders and each Lender's
share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be PRIMA FACIE evidence of the
existence and amounts of the obligations recorded therein; PROVIDED that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of any Borrower
to repay the Loans in accordance with the terms of this Agreement.
-72-
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the applicable Borrower shall prepare, execute
and deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in a form approved by the Administrative Agent. Thereafter, the Loans evidenced
by such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
(f) At the time of any termination of the Total Credit-Linked
Commitment pursuant to Section 2.08(a) or pursuant to Article VII, the
Administrative Agent shall request the Deposit Bank to withdraw from the
Credit-Linked Deposit Account and to pay same over to it, and shall return to
the CL Lenders (ratably in accordance with their respective CL Percentages), the
CL Lenders' Credit-Linked Deposits in an amount by which the aggregate amount of
the Credit-Linked Deposits at such time exceeds the aggregate CL L/C Exposure
(less unreimbursed L/C Disbursements included therein) at such time.
SECTION 2.10 REPAYMENT OF TERM LOANS. (a) Subject to adjustment
pursuant to paragraph (c) of this Section, the Term Borrower shall repay in
Dollars Term Loans on (x) the last day of each of March, June, September and
December of each year (each such date being referred to as an "INSTALLMENT
DATE") following the six month anniversary of the Closing Date and prior to the
Term Loan Maturity Date in an amount equal to 1/4 of 1% of the then Maximum
Dollar Term Amount and (y) the Term Loan Maturity Date in an amount equal to the
remaining principal amount of the Term Loans.
(b) To the extent not previously paid, all Term Loans shall be due
and payable on the Term Loan Maturity Date.
(c) Prepayment of Term Loans from all Net Proceeds or Excess Cash
Flow pursuant to Section 2.11(c) or 2.11(d), respectively, shall be applied
among the Term Loans on a pro rata basis (and thereafter PRO RATA among each
Term Loan Borrowing being repaid) and shall be applied to reduce on a PRO RATA
basis (based on the amount of such amortization payments) the remaining
scheduled amortization payments in respect of the Term Loans.
(d) Any Lender holding Term Loans may elect, on not less than two
Business Days' prior written notice to the Administrative Agent with respect to
any mandatory prepayment made pursuant to Section 2.11(b) or 2.11(c), not to
have such prepayment applied to such Lender's Term Loans, in which case the
amount not so applied shall be retained by the Term Borrower (and applied as it
elects).
(e) Prior to any repayment of any Borrowing under any Facility
hereunder, the applicable Borrower shall select the Borrowing or Borrowings
under such Facility to be repaid and shall notify the Administrative Agent by
telephone (confirmed by telecopy) of such selection not later than 2:00 p.m.,
Local Time, (i) in the case of an ABR Borrowing, one Business Day before the
scheduled date of such repayment and (ii) in the case of a Eurocurrency
Borrowing, three Business Days before the scheduled date of such repayment. Each
repayment of a Borrowing (x) in the case of the Revolving Facility, shall be
applied to the Revolving
-73-
Facility Loans included in the repaid Borrowing such that each Revolving
Facility Lender receives its ratable share of such repayment (based upon the
respective Revolving Facility Credit Exposures of the Revolving Facility Lenders
at the time of such repayment) and (y) in all other cases, shall be applied
ratably to the Loans included in the repaid Borrowing. Notwithstanding anything
to the contrary in the immediately preceding sentence, prior to any repayment of
a Swingline Dollar Borrowing or a Swingline Euro Borrowing hereunder, the
applicable Swingline Borrower shall select the Borrowing or Borrowings to be
repaid and shall notify the Administrative Agent by telephone (confirmed by
telecopy) of such selection not later than 1:00 p.m., Local Time, on the
scheduled date of such repayment. Except as provided in Section 2.13(d),
repayments of Borrowings shall be accompanied by accrued interest on the amount
repaid.
SECTION 2.11 PREPAYMENTS, ETC.(a) The applicable Borrower shall have
the right at any time and from time to time to prepay any Borrowing in whole or
in part, without premium or penalty (but subject to Section 2.16), in an
aggregate principal amount that is an integral multiple of the Borrowing
Multiple and not less than the Borrowing Minimum or, if less, the amount
outstanding, subject to prior notice in accordance with Section 2.10(e),
PROVIDED that such optional prepayments of the Term Loans shall be applied to
reduce on a PRO RATA basis (based on the amount of such amortization payments)
the remaining scheduled amortization payments in respect of the Term Loans.
(b) In the event and on such occasion that the Revolving Facility
Credit Exposure exceeds (x) 105% of the total Revolving Facility Commitments
solely as a result of currency fluctuations or (y) the total Revolving Facility
Commitments (other than as a result of currency fluctuations), the Borrowers
under the Revolving Facility shall prepay Revolving Facility Borrowings,
Swingline Dollar Borrowings and/or Swingline Euro Borrowings (or, if no such
Borrowings are outstanding, deposit cash collateral in an account with the
Administrative Agent pursuant to Section 2.05(k)) made to such Borrowers, in an
aggregate amount equal to the amount by which the Revolving Facility Credit
Exposure exceeds the total Revolving Facility Commitments.
(c) Holdings and the Term Borrower shall apply all Net Proceeds
promptly upon receipt thereof to prepay Term Borrowings in accordance with
paragraph (c) of Section 2.10.
(d) Not later than 90 days after the end of each Excess Cash Flow
Period, Holdings shall calculate Excess Cash Flow for such Excess Cash Flow
Period and shall apply an amount equal to the Required Percentage of such Excess
Cash Flow to prepay Term Borrowings in accordance with paragraph (c) of Section
2.10. Not later than the date on which Holdings is required to deliver financial
statements with respect to the end of each Excess Cash Flow Period under Section
5.04(a), Holdings will deliver to the Administrative Agent a certificate signed
by a Financial Officer of Holdings setting forth the amount, if any, of Excess
Cash Flow for such fiscal year and the calculation thereof in reasonable detail.
(e) On any day on which the aggregate CL Exposure exceeds the
Total Credit-Linked Commitment at such time, CAC (or after the Restructuring
Date, CAC and the Term Borrower on a joint and several basis) agrees to pay to
the Administrative Agent at the Payment Office on such day an amount of cash
and/or Cash Equivalents equal to the amount of
-74-
such excess, such cash and/or Cash Equivalents to be held as security for all
obligations of the respective CL Borrower to the Issuing Lenders and the CL
Lenders hereunder in respect of CL Letters of Credit in a cash collateral
account to be established by, and under the sole dominion and control of, the
Administrative Agent.
SECTION 2.12 FEES. (a) The Term Borrower (on behalf of itself and the
other Revolving Borrowers) agrees to pay to each Revolving Facility Lender
(other than any Defaulting Lender), through the Administrative Agent, 10
Business Days after the last day of March, June, September and December in each
year, and three Business Days after the date on which the Revolving Facility
Commitments of all the Lenders shall be terminated as provided herein, a
commitment fee (a "RF COMMITMENT FEE") in Dollars on the daily amount of the
Available Revolving Unused Commitment of such Lender during the preceding
quarter (or other period commencing with the Closing Date or ending with the
date on which the last of the Revolving Facility Commitment of such Lender shall
be terminated) at a rate equal to 0.75% per annum. All RF 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 RF Commitment Fee, the
outstanding Swingline Loans during the period for which such Lender's RF
Commitment Fee is calculated shall be deemed to be zero. The RF 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 Revolving Facility Commitments of
such Lender shall be terminated as provided herein.
(b) The Term Borrower (on behalf of itself and the other Revolving
Borrowers and/or CAC) from time to time agrees to pay (i) to each Revolving
Facility Lender (other than any Defaulting Lender), through the Administrative
Agent, 10 Business Days after the last day of March, June, September and
December of each year and three Business Days after the date on which the
Revolving Facility Commitments of all the Lenders shall be terminated as
provided herein, a fee (an "L/C PARTICIPATION FEE") in Dollars on such Lender's
Revolving Facility 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 Closing Date
or ending with the date on which the Revolving Facility Commitments shall be
terminated) at the rate per annum equal to the Applicable Margin for
Eurocurrency Revolving Borrowings effective for each day in such period, and
(ii) to each Issuing Bank, for its own account, (x) 10 Business Days after the
last day of March, June, September and December of each year and three Business
Days after the date on which the Revolving Facility Commitments of all the
Lenders shall be terminated as provided herein, a fronting fee in Dollars in
respect of each Letter of Credit issued by such Issuing Bank 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% (1/8
of 1% in the case of CL Letters of Credit) per annum of the daily stated amount
of such Letter of Credit) (with the minimum annual fronting fee for each Letter
of Credit to be not 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 Issuing Bank's customary documentary and processing charges
(collectively, "ISSUING BANK FEES"). The Term Borrower and CAC, jointly and
severally, agree to pay to each CL Lender (based on each such CL Lender's CL
Percentage), through the Administrative Agent, a fee (the "CL FACILITY FEE")
equal to the sum of (I) a rate per annum equal to the Applicable CL Margin on
the aggregate amount of the Credit-Linked Deposits from time to time and (II) a
rate per annum equal to the Credit-Linked Deposit Cost Amount as in
-75-
effect from time to time on the aggregate amount of the Credit-Linked Deposits
from time to time, in each case for the period from and including the Closing
Date to and including the date on which the Total Credit-Linked Commitment has
been terminated, the Credit-Linked Deposits have been returned to the CL Lenders
and all CL Letters of Credit have been terminated. Accrued CL Facility Fees
shall be due and payable quarterly in arrears on each CL Interest Payment Date
and on the date on which the Total Credit-Linked Commitment has been terminated,
the Credit-Linked Deposits have been returned to the CL Lenders and all CL
Letters of Credit have been terminated. All L/C Participation Fees and Issuing
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 Term Borrower agrees to pay to each Term Lender (other
than any Defaulting Lender), through the Administrative Agent, 10 Business Days
after each last day of March, June, September and December and three Business
Days after the date on which the Term Loan Commitments of all the Lenders shall
be terminated as provided herein, a commitment fee (a "TL COMMITMENT FEE") in
Dollars on the daily amount of the Term Loan Commitment of such Lender during
such preceding quarter (or other period commencing with the Closing Date or
ending with the date on which the last of the Term Loan Commitments of such
Lender shall be terminated) at a rate equal to 1.25% per annum. All TL
Commitment Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days. The TL 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 Term Loan Commitments of such Lender shall be terminated
as provided herein.
(d) The Term Borrower agrees to pay to the Administrative Agent,
for the account of the Administrative Agent, the fees set forth in the Fee
Letter dated April 5, 2004, as amended, restated, supplemented or otherwise
modified from time to time, at the times specified therein (the "ADMINISTRATIVE
AGENT FEES").
(e) 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 Issuing Bank Fees shall be paid
directly to the applicable Issuing Banks. Once paid, none of the Fees shall be
refundable under any circumstances.
SECTION 2.13 INTEREST. (a) The Loans comprising each ABR Borrowing
(including each Swingline Dollar Loan) shall bear interest at the Alternate Base
Rate plus the Applicable Margin.
(b) The Loans comprising each Eurocurrency Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Margin.
(c) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any Fees or other amount payable by the applicable Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue principal amount shall bear interest, and each such
other overdue amount shall, to the extent permitted by law, bear interest, in
each case after as well as before judgment, at a rate per annum equal to (i) in
the case
-76-
of overdue principal of any Loan, 2% plus the rate otherwise applicable to such
Loan as provided in the preceding paragraphs of this Section or (ii) in the case
of any other amount (x) payable in Dollars, 2% plus the rate applicable to
Revolving Loans that are ABR Loans as provided in paragraph (a) of this Section
or (y) payable in Euros, 2% plus the rate otherwise applicable to a Revolving
Loan denominated in Euros with a one-month Interest Period made on such date;
provided that this paragraph (c) shall not apply to any payment default that has
been waived by the Lenders pursuant to Section 9.08.
(d) Accrued interest on each Loan shall be payable in arrears (i)
on each Interest Payment Date for such Loan, (ii) in the case of Revolving
Facility Loans, upon termination of the Revolving Facility Commitments and (iii)
in the case of the Term Loans, on the Term Loan Maturity Date; PROVIDED that (i)
interest accrued pursuant to paragraph (c) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan (other than
a prepayment of an ABR Revolving Loan or Swingline Dollar Loan prior to the end
of the Revolving Availability Period), accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repayment or prepayment
and (iii) in the event of any conversion of any Eurocurrency Loan prior to the
end of the current Interest Period therefor, accrued interest on such Loan shall
be payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be prima facie evidence thereof.
SECTION 2.14 ALTERNATE RATE OF INTEREST. If prior to the commencement
of any Interest Period for a Eurocurrency Borrowing denominated in any currency:
(a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Majority Lenders
under a Facility that the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period will not adequately and fairly reflect
the cost to such Lenders of making or maintaining their Loans included in
such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrowers and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrowers and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurocurrency Borrowing denominated in such
currency shall be ineffective and such Borrowing shall be converted to or
continued as on the last day of the Interest Period applicable thereto (A) if
such Borrowing is denominated in Dollars, an ABR
-77-
Borrowing or (B) if such Borrowing is denominated in Euros, as a Borrowing
bearing interest at such rate as the Majority Lenders under the Revolving
Facility and the applicable Borrower shall agree adequately reflects the costs
to the Revolving Facility Lenders of making or maintaining their Loans, and (ii)
if any Borrowing Request requests a Eurocurrency Borrowing in such currency,
such Borrowing shall be made as an ABR Borrowing (if such Borrowing is requested
to be made in Dollars) or shall be made as a Borrowing bearing interest at such
rate as the Majority Lenders under the Revolving Facility shall agree adequately
reflects the costs to the Revolving Facility Lenders of making the Loans
comprising such Borrowing.
SECTION 2.15 INCREASED COSTS. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate or those for which payment has been
requested pursuant to Section 2.21) or Issuing Bank; or
(ii) impose on any Lender or Issuing Bank or the London interbank
market any other condition affecting this Agreement, Eurocurrency Loans or
Swingline Euro Loans made by such Lender or any Letter of Credit or
participation therein (except those for which payment has been requested
pursuant to Section 2.21);
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan or Swingline Euro Loan (or
of maintaining its obligation to make any such Loan) or to increase the cost to
such Lender or Issuing Bank of participating in, issuing or maintaining any
Letter of Credit or to reduce the amount of any sum received or receivable by
such Lender or Issuing Bank hereunder (whether of principal, interest or
otherwise), in each case determined to be material by such Lender, then the
applicable Borrower (in the case of a Loan) or the applicable Applicant Party
(in the case of a Letter of Credit) will pay to such Lender or Issuing Bank, as
applicable, such additional amount or amounts as will compensate such Lender or
Issuing Bank, as applicable, for such additional costs incurred or reduction
suffered.
(b) If any Lender or Issuing Bank determines that any Change in
Law regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or Issuing Bank's capital or on the capital of
such Lender's or Issuing Bank's holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in Letters of Credit held
by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a
level below that which such Lender or such Issuing Bank or such Lender's or such
Issuing Bank's holding company could have achieved but for such Change in Law
(taking into consideration such Lender's or such Issuing Bank's policies and the
policies of such Lender's or such Issuing Bank's holding company with respect to
capital adequacy) and determined to be material by such Lender, then from time
to time the applicable Borrower (in the case of a Loan) or the applicable
Applicant Party (in the case of a Letter of Credit) shall pay to such Lender or
such Issuing Bank, as applicable, such additional amount or amounts as will
compensate such Lender or such Issuing Bank or such Lender's or such Issuing
Bank's holding company for any such reduction suffered.
-78-
(c) A certificate of a Lender or an Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or Issuing Bank or its
holding company, as applicable, as specified in paragraph (a) or (b) of this
Section (as well as reasonably detailed calculations thereof) shall be delivered
to the applicable Borrower (in the case of a Loan) or the applicable Applicant
Party (in the case of a Letter of Credit) and shall be prima facie evidence of
the amounts thereof. The applicable Borrower (in the case of a Loan) or the
applicable Applicant Party (in the case of a Letter of Credit) shall pay such
Lender or Issuing Bank, as applicable, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Promptly after any Lender or any Issuing Bank has determined
that it will make a request for increased compensation pursuant to this Section
2.15, such Lender or issuing Bank shall notify the applicable Borrower thereof.
Failure or delay on the part of any Lender or Issuing Bank to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's or Issuing Bank's right to demand such compensation; PROVIDED that a
Borrower shall not be required to compensate a Lender or an Issuing Bank
pursuant to this Section for any increased costs or reductions incurred more
than 180 days prior to the date that such Lender or Issuing Bank, as applicable,
notifies such Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender's or issuing Bank's intention to claim
compensation therefor; PROVIDED, FURTHER, that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the 180-day period
referred to above shall be extended to include the period of retroactive effect
thereof.
SECTION 2.16 BREAK FUNDING PAYMENTS. In the event of (a) the payment
of any principal of any Eurocurrency Loan or Swingline Euro Loan other than on
the last day of an Interest Period applicable thereto (including as a result of
an Event of Default), (b) the conversion of any Eurocurrency Loan other than on
the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Eurocurrency Loan on the date specified
in any notice delivered pursuant hereto or (d) the assignment of any
Eurocurrency Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by a Borrower pursuant to Section 2.19, then,
in any such event, such Borrower shall compensate each Lender for the loss, cost
and expense attributable to such event. In the case of a Eurocurrency Loan or
Swingline Euro Loan, such loss, cost or expense to any Lender shall be deemed to
be the amount reasonably determined by such Lender to be the excess, if any, of
(i) the amount of interest which would have accrued on the principal amount of
such Loan had such event not occurred, at the Adjusted LIBO Rate that would have
been applicable to such Loan, for the period from the date of such event to the
last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue a Eurocurrency Loan, for the period that
would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
such period, for deposits in Euros of a comparable amount and period from other
banks in the Eurodollar market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to such Borrower and shall be prima facie evidence of
the amounts thereof. Such Borrower shall pay such Lender the amount shown as due
on any such certificate within 10 days after receipt thereof.
-79-
SECTION 2.17 TAXES. (a) Any and all payments by or on account of any
obligation of any Loan Party hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; PROVIDED that if a
Loan Party shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) any Agent, Lender or Issuing Bank,
as applicable, receives an amount equal to the sum it would have received had no
such deductions been made, (ii) such Loan Party shall make such deductions and
(iii) such Loan Party shall timely pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Loan Parties shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Each Loan Party shall indemnify the Agents, each Lender and
each Issuing Bank, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by such Agent, Lender or
Issuing Bank, as applicable, on or with respect to any payment by or on account
of any obligation of such Loan Party hereunder (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to such Loan Party by a Lender
or an Issuing Bank, or by the Administrative Agent on its own behalf, on behalf
of another Agent or on behalf of a Lender or an Issuing Bank, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes
or Other Taxes by a Loan Party to a Governmental Authority, such Loan Party
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Lender that is entitled to an exemption from or reduction
of withholding Tax under the law of the jurisdiction in which a Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to such Borrower (with a copy to the
Administrative Agent), to the extent such Lender is legally entitled to do so,
at the time or times prescribed by applicable law, such properly completed and
executed documentation prescribed by applicable law as may reasonably be
requested by such Borrower to permit such payments to be made without such
withholding tax or at a reduced rate; PROVIDED that no Lender shall have any
obligation under this paragraph (e) with respect to any withholding Tax imposed
by any jurisdiction other than the United States if in the reasonable judgment
of such Lender such compliance would subject such Lender to any material
unreimbursed cost or expense or would otherwise be disadvantageous to such
Lender in any material respect.
(f) If an Agent or a Lender determines, in good faith and in its
sole discretion, that it has received a refund of any Indemnified Taxes or Other
Taxes as to which it has been indemnified by a Loan Party or with respect to
which such Loan Party has paid additional
-80-
amounts pursuant to this Section 2.17, it shall pay over such refund to such
Loan Party (but only to the extent of indemnity payments made, or additional
amounts paid, by such Loan Party under this Section 2.17 with respect to the
Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of such Agent or such Lender (including any Taxes imposed with respect
to such refund) as is determined by the Agent or Lender in good faith and in its
sole discretion and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund); PROVIDED that such
Loan Party, upon the request of such Agent or such Lender, agrees to repay as
soon as reasonably practicable the amount paid over to such Loan Party (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to such Agent or such Lender in the event such Agent or such Lender
is required to repay such refund to such Governmental Authority. This Section
shall not be construed to require any Agent or any Lender to make available its
Tax returns (or any other information relating to its Taxes which it deems
confidential) to the Loan Parties or any other Person.
SECTION 2.18 PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS. (a) Unless otherwise specified, each Borrower shall make each payment
required to be made by it hereunder (whether of principal, interest, fees or
reimbursement of L/C Disbursements, or of amounts payable under Section 2.15,
2.16, 2.17 or 2.21, or otherwise) prior to 2:00 p.m., Local Time, on the date
when due, in immediately available funds, without condition or deduction for any
defense, recoupment, set-off or counterclaim. Any amounts received after such
time on any date may, in the discretion of the Administrative Agent, be deemed
to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the
Administrative Agent to the applicable account designated to the Term Borrower
by the Administrative Agent, except payments to be made directly to the
applicable Issuing Bank or the applicable Swingline Lender as expressly provided
herein and except that payments pursuant to Sections 2.15, 2.16, 2.17, 2.21 and
9.05 shall be made directly to the persons entitled thereto. The Administrative
Agent shall distribute any such payments received by it for the account of any
other Person to the appropriate recipient promptly following receipt thereof or,
in the case of payments made prior to the Revolving Facility Maturity Date in
respect of CL Loans or of L/C Disbursements funded by CL Lenders from
Credit-Linked Deposits, the Administrative Agent shall deposit same in the
Credit-Linked Deposit Account. If any payment hereunder shall be due on a day
that is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
hereunder of (i) principal or interest in respect of any Loan shall be made in
the currency in which such Loan is denominated, (ii) reimbursement obligations
shall, subject to Sections 2.05(e) and 2.05(k), be made in the currency in which
the Letter of Credit in respect of which such reimbursement obligation exists is
denominated or (iii) any other amount due hereunder or under another Loan
Document shall be made in Dollars. Any payment required to be made by the
Administrative Agent hereunder shall be deemed to have been made by the time
required if the Administrative Agent shall, at or before such time, have taken
the necessary steps to make such payment in accordance with the regulations or
operating procedures of the clearing or settlement system used by the
Administrative Agent to make such payment. Any amount payable by the
Administrative Agent to one or more Lenders in the national currency of a member
state of the European Union that has adopted the Euro as its lawful currency
shall be paid in Euros.
-81-
(b) If at any time insufficient funds are received by and
available to the Administrative Agent from any Borrower to pay fully all amounts
of principal, unreimbursed L/C Disbursements, interest and fees then due from
such Borrower hereunder, such funds shall be applied (i) FIRST, towards payment
of interest and fees then due from such Borrower hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) SECOND, towards payment of principal and
unreimbursed L/C Disbursements then due from such Borrower hereunder, ratably
among the parties entitled thereto in accordance with the amounts of principal
and unreimbursed L/C Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Term Loans, Revolving Facility Loans or participations in
L/C Disbursements or Swingline Loans resulting in such Lender receiving payment
of a greater proportion of the aggregate amount of its Term Loans, Revolving
Facility Loans and participations in L/C Disbursements and Swingline Loans and
accrued interest thereon than the proportion received by any other Lender, then
the Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Term Loans, Revolving Facility Loans and
participations in L/C Disbursements and Swingline Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Term Loans, Revolving Facility Loans and
participations in L/C Disbursements and Swingline Loans; PROVIDED that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph (c) shall not be construed to apply to any
payment made by a Borrower pursuant to and in accordance with the express terms
of this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in L/C Disbursements to any assignee or participant, other than to such Borrower
or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph (c) shall apply).
(d) Unless the Administrative Agent shall have received notice
from a Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the applicable Issuing
Bank hereunder that such Borrower will not make such payment, the Administrative
Agent may assume that such Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the
Lenders or the applicable Issuing Bank, as applicable, the amount due. In such
event, if such Borrower has not in fact made such payment, then each of the
Lenders or the applicable Issuing Bank, as applicable, severally agrees to repay
to the Administrative Agent forthwith on demand the amount so distributed to
such Lender or Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at (i) the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation (in the case of an amount
denominated in Dollars) and (ii) the rate reasonably determined by the
Administrative Agent to be the cost to it of funding such amount (in the case of
an amount denominated in Euros).
-82-
(e) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b) or 2.18(d), then
the Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.19 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS. (a) If
any Lender requests compensation under Section 2.15 or 2.21, or if a Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or Affiliates, if, in the
reasonable judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.15, 2.17 or 2.21, as
applicable, in the future and (ii) would not subject such Lender to any material
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender in any material respect. Each Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If any Lender requests compensation under Section 2.15 or
2.21, or if a Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section
2.17, or is a Defaulting Lender, then such Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); PROVIDED that (i) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in L/C
Disbursements and Swingline Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or such Borrower (in
the case of all other amounts) and (ii) in the case of any such assignment
resulting from a claim for compensation under Section 2.15 or 2.21 or payments
required to be made pursuant to Section 2.17, such assignment will result in a
reduction in such compensation or payments. Nothing in this Section 2.19 shall
be deemed to prejudice any rights that any Borrower may have against any Lender
that is a Defaulting Lender.
(c) If any Lender (such Lender, a "NON-CONSENTING LENDER") has
failed to consent to a proposed amendment, waiver, discharge or termination
which pursuant to the terms of Section 9.08 requires the consent of all of the
Lenders affected and with respect to which the Required Lenders shall have
granted their consent, then provided no Event of Default then exists, the Term
Borrower shall have the right (unless such Non-Consenting Lender grants such
consent) to replace such Non-Consenting Lender by requiring such Non-Consenting
Lender to assign its Loans, and its Commitments hereunder to one or more
assignees reasonably acceptable to the Administrative Agent, PROVIDED that: (a)
all Obligations of Borrowers owing to such Non- Consenting Lender being replaced
(and all Credit-Linked Deposits funded by such Lender) shall be paid in full to
such Non-Consenting Lender concurrently with such assignment, and (b) the
replacement Lender shall purchase the foregoing by paying to such Non-Consenting
Lender a price equal to the principal amount thereof plus accrued and unpaid
interest thereon. In connection
-83-
with any such assignment the Term Borrower, Administrative Agent, such
Non-Consenting Lender and the replacement Lender shall otherwise comply with
Section 9.04.
SECTION 2.20 REVOLVING BORROWERS. The Term Borrower may designate
after the Closing Date any Domestic Subsidiary of the Term Borrower that is
party to the U.S. Collateral Agreement and/or any Foreign Subsidiary of the Term
Borrower that is a Wholly Owned Subsidiary as an additional Revolving Borrower,
with a specified Maximum Credit Limit, by delivery to the Administrative Agent
of a Revolving Borrower Agreement executed by such Subsidiary and the Term
Borrower. It is agreed that Grupo Celanese S.A., if and when designated by the
Term Borrower as a Revolving Borrower, will have a Maximum Credit Limit equal at
any time to the Dollar Equivalent of the aggregate Revolving Facility
Commitments at such time. Each such designation shall specify whether such
Subsidiary shall be entitled to make Borrowings under and/or request Letters of
Credit under the Revolving Facility, and each such designation and specified
Maximum Credit Limit shall be subject to the consent of the Administrative Agent
(which consent shall not unreasonably be withheld). Upon the execution by the
Term Borrower and delivery to the Administrative Agent of a Revolving Borrower
Termination with respect to any Revolving Borrower, such Subsidiary shall cease
to be a Revolving Borrower and a party to this Agreement as a Revolving
Borrower; PROVIDED that no Revolving Borrower Termination will become effective
as to any Revolving Borrower (other than to terminate such Revolving Borrower's
right to make further Borrowings under this Agreement) at a time when any
principal of or interest on any Loan to such Revolving Borrower or any Letter of
Credit for the account of such Revolving Borrower shall be outstanding
hereunder. Promptly following receipt of any Revolving Borrower Agreement or
Revolving Borrower Termination, the Administrative Agent shall send a copy
thereof to each Revolving Facility Lender. The Term Borrower shall be entitled
to designate any Foreign Subsidiary that complies with the requirements
described in Section 5.10(f) as a Revolving Borrower.
SECTION 2.21 ADDITIONAL RESERVE COSTS. (a) For so long as any Lender
is required to make special deposits with the Bank of England and/or the
Financial Services Authority (or, in either case any other authority which
replaced all or any of its functions) and/or the European Central Bank or comply
with reserve assets, liquidity, cash margin or other requirements of the Bank of
England and/or the Financial Services Authority (or, in either case any other
authority which replaced all or any of its functions) and/or the European
Central Bank, to maintain reserve asset ratios or to pay fees, in each case in
respect of such Lender's Eurocurrency Loans or Swingline Euro Loans, such Lender
shall be entitled to require the applicable Borrower to pay, contemporaneously
with each payment of interest on each of such Loans, additional interest on such
Loan at a percentage rate per annum equal to the Mandatory Costs Rate calculated
in accordance with the formulae and in the manner set forth in EXHIBIT J hereto.
(b) Any additional interest owed pursuant to paragraph (a) above
shall be determined by the applicable Lender, which determination shall be prima
facie evidence of the amount thereof, and notified to the applicable Borrower
(with a copy to the Administrative Agent) at least 10 days before each date on
which interest is payable for the applicable Loan, and such additional interest
so notified to the applicable Borrower by such Lender shall be payable to the
Administrative Agent for the account of such Lender on each date on which
interest is payable for such Loan.
-84-
SECTION 2.22 INCREASE IN TERM LOANS.
(a) NEW TERM COMMITMENTS. At any time prior to the first
anniversary of the Closing Date, the Term Borrower may by written notice to the
Administrative Agent elect to request an increase to the existing Term Loan
Commitments (any such increase, the "NEW TERM COMMITMENTS") by an amount not in
excess of the Euro Equivalent on the Increased Amount Date of $175 million in
the aggregate to be used solely to consummate the Designated Acquisition (by, if
prior to the Restructuring Date, advancing the net cash proceeds thereof to CAC
as a CAC Loan in order to effect the Acquisition). Such notice shall (A) specify
the date (the "INCREASED AMOUNT DATE") on which the Term Borrower proposes that
the borrowing under the New Term Commitments be made, which shall be a date not
less than 10 Business Days after the date on which such notice is delivered to
the Administrative Agent and prior to the first anniversary of the Closing Date,
and (B) offer each existing Term Lender the right to acquire New Term
Commitments on a PRO RATA basis. The Term Borrower shall notify the
Administrative Agent in writing of the identity of each Term Lender or other
financial institution reasonably acceptable to the Administrative Agent (each, a
"NEW TERM LENDER") to whom the New Term Commitments have been (in accordance
with the prior sentence) allocated and the amounts of such allocations; PROVIDED
that any Lender approached to provide all or portion of the New Term Commitments
may elect or decline, in its sole discretion, to provide a New Term Commitment.
Term Loans in respect of the New Term Commitments ("NEW TERM LOANS") shall be
made on the Increased Amount Date; PROVIDED that (1) no Default or Event of
Default shall exist on the Increased Amount Date before or after giving effect
to such New Term Loans; and (2) such New Term Loan Commitments shall be
evidenced by one or more joinder agreements executed and delivered to the
Administrative Agent by each New Term Lender, as applicable, and each shall be
recorded in the register, each of which shall be subject to the requirements set
forth in Section 2.17(e).
(b) On the Increased Amount Date, subject to the satisfaction of
the foregoing terms and conditions, (i) each New Term Loan shall be deemed for
all purposes a Term Loan hereunder, (ii) each New Term Lender shall become a
Term Lender with respect to the Term Loans and all matters relating thereto,
(iii) the New Term Loans shall have the same terms as the existing Term Loans
and be made by each New Term Lender on the Increased Amount Date and (iv) upon
making the New Term Loans on the Increased Amount Date, the New Term Commitments
shall terminate. All New Term Loans made on any Increased Amount Date will be
made in accordance with the procedures set forth in Sections 2.02 and 2.03 and
subject to the conditions specified in Section 4.01.
(c) The Administrative Agent shall notify the Lenders promptly
upon receipt of the Term Borrower's notice of the Increased Amount Date and, in
respect thereof, the New Term Commitments and the New Term Lenders.
SECTION 2.23 ILLEGALITY. (a) If any Lender reasonably determines that
it is unlawful, or that any Governmental Authority has asserted that it is
unlawful, for any Lender or its applicable lending office to make or maintain
any Revolving Facility Loan denominated in Euros or any Swingline Euro Loan,
then, on notice thereof by such Lender to the applicable Borrower through the
Administrative Agent, any obligations of such Lender to make or continue
Revolving Facility Loans denominated in Euros or Swingline Euro Loans shall be
suspended
-85-
until such Lender notifies the Administrative Agent and the applicable Borrower
that the circumstances giving rise to such determination no longer exist. Upon
any of such notice, the applicable Borrower shall upon demand from such Lender
(with a copy to the Administrative Agent) prepay such Revolving Facility Loan
denominated in Euros or Swingline Euro Loan. Upon any such prepayment, such
Borrower shall also pay accrued interest on the amount so prepaid.
(b) If any Lender reasonably determines that any change in law has
made it unlawful, or that any Governmental Authority has asserted after the
Closing Date that it is unlawful, for any Lender or its applicable lending
office to make or maintain any Eurocurrency Loans (other than as set forth in
paragraph (a) above), then, on notice thereof by such Lender to the applicable
Borrower through the Administrative Agent, any obligations of such Lender to
make or continue Eurocurrency Loans or to convert ABR Borrowings to Eurocurrency
Borrowings shall be suspended until such Lender notifies the Administrative
Agent and the applicable Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the applicable
Borrower shall upon demand from such Lender (with a copy to the Administrative
Agent), either (i) for Loans denominated in Euros (A) prepay each Loan
denominated in Euros or (B) keep such Loan denominated in Euros outstanding, in
which case the Adjusted LIBO Rate with respect to such Loan shall be deemed to
be the rate determined by such Lender as the all-in-cost of funds to fund such
Loan with maturities comparable to the Interest Period applicable thereto, or
(ii) for Loans denominated in Dollars, convert all Eurocurrency Borrowings of
such Lender to ABR Borrowings, either on the last day of the Interest Period
therefor, if such Lender may lawfully continue to maintain such Eurocurrency
Borrowings to such day, or immediately, if such Lender may not lawfully continue
to maintain such Loans. Upon any such prepayment or conversion, such Borrower
shall also pay accrued interest on the amount so prepaid or converted.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of Holdings and the Term Borrower represents and warrants to each
of the Lenders that:
SECTION 3.01 ORGANIZATION; POWERS. Except as set forth on SCHEDULE
3.01, each of Holdings, the Term Borrower and each of the Material Subsidiaries
(a) is a partnership, limited liability company, exempted 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 each jurisdiction where such qualification is
required, except where the failure so to qualify could not reasonably be
expected to have a Material Adverse Effect, and (d) has the power and authority
to execute, deliver and perform its obligations under each of the Financing
Documents and each other agreement or instrument contemplated thereby to which
it is or will be a party and, in the case of each Borrower, to borrow and
otherwise obtain credit hereunder.
-86-
SECTION 3.02 AUTHORIZATION. The execution, delivery and performance
by Holdings, the Term Borrower, and each of their Subsidiaries of each of the
Financing Documents to which it is a party, and the borrowings hereunder (a)
have been duly authorized by all corporate, stockholder, shareholder, limited
liability company or partnership action required to be obtained by Holdings, the
Term 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
Term 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 Term 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 default under, give rise to a right of or
result in any cancellation or acceleration of any right or obligation (including
any payment) or to a loss of a material benefit 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, could reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect, or (iii) result in the creation
or imposition of any Lien upon or with respect to any material property or
assets now owned or hereafter acquired by Holdings, the Term 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 each Borrower and constitutes, and each other
Financing 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,
subject to (i) the effects of bankruptcy, insolvency, moratorium,
reorganization, fraudulent conveyance or other similar laws affecting creditors'
rights generally, (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and (iii)
implied covenants of good faith and fair dealing.
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 Transactions, except for
(a) the filing of Uniform Commercial Code financing statements, (b) 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, (c) recordation of the Mortgages, (d) such as have been
made or obtained and are in full force and effect, (e) such actions, consents
and approvals the failure to be obtained or made which could not reasonably be
expected to have a Material Adverse Effect and (f) filings or other actions
listed on SCHEDULE 3.04.
SECTION 3.05 FINANCIAL STATEMENTS. (a) Holdings has heretofore
furnished to the Lenders the audited consolidated balance sheet as of December
31, 2002 and the related audited consolidated statements of income and cash
flows of the Company and its subsidiaries for the year ended December 31, 2002
and the unaudited interim consolidated balance sheet as of September 30, 2003
and the related unaudited interim consolidated statements of income and cash
flows of the Company and its subsidiaries for the nine months ended September
30, 2003, which were prepared in accordance with US GAAP consistently applied
(except as may be
-87-
indicated in the notes thereto), fairly present in all material respects the
consolidated financial position of the Company and its subsidiaries as of the
dates thereof and their consolidated results of operations and cash flows for
the period then ended (in the case of the unaudited interim statements, subject
to normal year-end adjustments and the absence of notes).
(b) Holdings has heretofore furnished to the Lenders its PRO FORMA
consolidated balance sheet as of December 31, 2003 prepared giving effect to the
Transaction as if the Transaction had occurred on such date. Such PRO FORMA
consolidated balance sheet (i) has been prepared in good faith based on the
assumptions believed by Holdings and the Term Borrower to have been reasonable
at the time made and to be reasonable as of the Closing Date (it being
understood that such assumptions are based on good faith estimates with respect
to certain items and that the actual amounts of such items on the Closing Date
is subject to variation and that purchase accounting will not have been
applied), (ii) subject to the assumptions and qualifications described therein,
accurately reflects all adjustments necessary to give effect to the Transaction
and (iii) subject to the assumptions and qualifications described therein,
presents fairly, in all material respects, the PRO FORMA consolidated financial
position of Holdings and its consolidated Subsidiaries as of December 31, 2003,
as if the Transaction had occurred on such date.
SECTION 3.06 NO MATERIAL ADVERSE EFFECT. Since December 31, 2002
(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 Term Borrower and the Material Subsidiaries has good and valid
record fee simple title (insurable at ordinary rates) to, or valid leasehold
interests in, or easements or other limited property interests in, all its
properties and assets (including all Mortgaged Properties), except where the
failure to have such title could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. All such properties
and assets are free and clear of Liens, other than Liens expressly permitted by
Section 6.02 or arising by operation of law.
(b) Each of Holdings, the Term Borrower and the Material
Subsidiaries has complied with all obligations under all 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 Term
Borrower and each of the Material Subsidiaries enjoys peaceful and undisturbed
possession under all such leases, other than leases in respect of which the
failure to enjoy peaceful and undisturbed possession could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
(c) Each of Holdings, the Term Borrower and the Material
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 reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
-88-
(d) As of the Closing Date, none of Holdings, the Term Borrower
and the Material Subsidiaries has received any notice 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 Term Borrower and the Material
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 Section
6.02 or 6.05.
SECTION 3.08 SUBSIDIARIES. (a) On the Closing Date, after giving
effect to the Transaction, the corporate structure of Holdings and its
Subsidiaries is in all material respects as set forth on SCHEDULE 3.08(a) and on
the Restructuring Date, after giving effect to the Restructuring, the corporate
structure of Holdings and its Subsidiaries shall be in all material respects as
set forth on a Schedule delivered to the Lenders prior to the Restructuring
Date, such Schedule, to the extent it contains changes to the structure set
forth on SCHEDULE 3.08(a) not provided for in the definition of "Restructuring"
or expressly permitted by Section 6.08(b), to be reasonably satisfactory to the
Administrative Agent.
(b) SCHEDULE 3.08(b) sets forth as of the Closing Date the name
and jurisdiction of incorporation, formation or organization of each Material
Subsidiary and, as to each such Material Subsidiary, the percentage of each
class of Equity Interests owned by Holdings or by any such Material Subsidiary,
subject to such changes as are reasonably satisfactory to the Administrative
Agent.
(c) As of the Closing Date, there are no outstanding
subscriptions, options, warrants, calls, rights or other similar 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, the Term Borrower, the Company or any of the Material Subsidiaries,
except as set forth on SCHEDULE 3.08(c).
(d) Except to the extent, if any, specified for a subsidiary in
SCHEDULE 1.01(h), each subsidiary listed on SCHEDULE 1.01(h) owns no property
other than any de minimus assets and conducts no business other than de minimus
business.
SECTION 3.09 LITIGATION; COMPLIANCE WITH LAWS. (a) Except as set
forth on SCHEDULE 3.09, there are no actions, suits, investigations or
proceedings at law or in equity or by or on behalf of any Governmental Authority
or in arbitration now pending, or, to the knowledge of Holdings or the Term
Borrower, threatened in writing against or affecting Holdings or the Term
Borrower or any of their Subsidiaries or any business, property or rights of any
such person which could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect or materially adversely affect the
Transaction.
(b) None of Holdings, the Term Borrower, the Material Subsidiaries
and their respective 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
-89-
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 have, individually or in the aggregate, a Material Adverse Effect.
SECTION 3.10 FEDERAL RESERVE REGULATIONS. (a) None of Holdings, the
Term 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 or of the Senior
Subordinated Bridge B Loans or the Senior Subordinated Bridge C Loans will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or that is inconsistent
with, the provisions of the Regulations of the Board, including Regulation U or
Regulation X.
SECTION 3.11 INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY
ACT. None of Holdings, the Term 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 3.12 USE OF PROCEEDS. The Revolving Borrowers will only incur
Revolving Facility Loans on the Closing Date to repay outstanding Indebtedness
permitted to be outstanding pursuant to clause (vii) under the heading
"Conditions" in the Offer Document and not repaid with cash on hand or repaid
(or to be repaid) with the proceeds of CAC Loans (to the extent CAC Loans may be
made to effect Refinancings). The respective Borrowers will use the proceeds of
subsequent incurred Revolving Facility Loans, Swingline Loans and CL Loans and
the issuance of Letters of Credit solely for general corporate purposes;
provided that Letters of Credit may not be issued in support of Indebtedness
permitted under Section 6.01(y). The Term Borrower will use the proceeds of Term
Loans (net of a portion of such proceeds used to satisfy fees and expenses
(which shall not exceed the Dollar Equivalent on the Closing Date of EURO 25
million to the extent relating to the Transaction) and other than the net cash
proceeds of Term Loans incurred pursuant to Section 2.22, which will be used as
provided therein) on the date incurred (or the next Business Day) to fund CAC
Loans, and CAC will use the proceeds of the CAC Loans for liquidity purposes
(but not in excess of the Dollar Equivalent on the Closing Date of EURO 50
million of such proceeds may be used for such purposes) and to effect on the
date received Pension Prefundings and/or Refinancings.
SECTION 3.13 TAX RETURNS. Except as set forth on SCHEDULE 3.13:
(a) each of Holdings, the Term Borrower and the Material
Subsidiaries (i) has timely filed or caused to be timely filed all federal,
state, local and non-U.S. Tax returns required to have been filed by it
that are material to such companies taken as a whole and each such Tax
return is true and correct in all material respects and (ii) has timely
paid or caused to be timely paid all material Taxes shown thereon to be due
and payable by it and all other material Taxes or assessments, except Taxes
or assessments that are being contested in good faith by appropriate
proceedings in accordance with Section 5.03 and
-90-
for which Holdings, the Term Borrower or any of the Material Subsidiaries
(as the case may be) has set aside on its books adequate reserves;
(b) each of Holdings, the Term Borrower and the Material
Subsidiaries has paid in full or made adequate provision (in accordance
with US GAAP) for the payment of all Taxes due with respect to all periods
or portions thereof 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; and
(c) as of the Closing Date, with respect to each of Holdings, the
Term Borrower and their Material Subsidiaries, (i) there are no material
audits, investigations or claims being asserted in writing with respect to
any Taxes, (ii) no presently effective waivers or extensions of statutes of
limitation with respect to Taxes have been given or requested and (iii) no
material 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.
SECTION 3.14 NO MATERIAL MISSTATEMENTS. (a) All written information
(other than the Projections, estimates and information of a general economic
nature) (the "INFORMATION") concerning Holdings, the Term Borrower, their
Subsidiaries, the Transaction and any other transactions contemplated hereby
included in the Offer Document and/or (after the preparation and delivery
thereof) the Information Memorandum or otherwise prepared by or on behalf of the
foregoing or their representatives and made available to any Lenders or the
Administrative Agent in connection with the Transaction (as such information may
have been supplemented in writing prior to the Closing Date) or the other
transactions contemplated hereby, when taken as a whole, were true and correct
in all material respects, as of the date such Information was furnished to the
Lenders and (in the case of such Information delivered prior to the Closing
Date) as of the Closing Date and did not contain any untrue statement of a
material fact as of any such date or omit to state a material fact necessary in
order to make the statements contained therein not materially misleading in
light of the circumstances under which such statements were made.
(b) The Projections and estimates and information of a general
economic nature prepared by or on behalf of the Term Borrower or any of its
representatives and that have been made available to any Lenders or the
Administrative Agent in connection with the Transactions or the other
transactions contemplated hereby (i) have been prepared in good faith based upon
assumptions believed by the Term Borrower to be reasonable as of the date
thereof and as of the Closing Date, and (ii) as of the Closing Date, have not
been modified in any material respect by the Term Borrower.
SECTION 3.15 EMPLOYEE BENEFIT PLANS. (a) Each of the Borrowers,
Holdings, the Material Subsidiaries and the ERISA Affiliates is in compliance
with the applicable provisions of ERISA and the provisions of the Code relating
to Plans and the regulations and published interpretations thereunder and any
similar applicable non-U.S. law, except for such noncompliance that could not
reasonably be expected to have a Material Adverse Effect. No Reportable Event
has occurred during the past five years as to which the Borrowers, Holdings, any
of the Material Subsidiaries or any ERISA Affiliate was required to file a
report with the
-91-
PBGC, other than reports that have been filed and reports the failure of which
to file could not reasonably be expected to have a Material Adverse Effect. As
of the Closing Date, the excess of the present value of all benefit liabilities
under each Plan of the Borrowers, Holdings, the Material Subsidiaries and the
ERISA Affiliates (based on those assumptions used to fund such Plan), as of the
last annual valuation date applicable thereto for which a valuation is
available, over the value of the assets of such Plan could not reasonably be
expected to have a Material Adverse Effect, and the excess of the present value
of all benefit liabilities of all underfunded Plans (based on those assumptions
used to fund each such Plan) as of the last annual valuation dates applicable
thereto for which valuations are available, over the value of the assets of all
such under funded Plans could not reasonably be expected to have a Material
Adverse Effect. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events which have occurred
or for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. None of the Borrowers,
Holdings, the Material Subsidiaries and the ERISA Affiliates has received any
written notification that any Multiemployer Plan is in reorganization or has
been terminated within the meaning of Title IV of ERISA, or has knowledge that
any Multiemployer Plan is reasonably expected to be in reorganization or to be
terminated, where such reorganization or termination has had or could reasonably
be expected to have, through increases in the contributions required to be made
to such Plan or otherwise, a Material Adverse Effect.
(b) Each of Holdings, the Term Borrower and the Material
Subsidiaries is in compliance (i) with all applicable provisions of law and all
applicable regulations and published interpretations thereunder with respect to
any employee pension benefit plan or other employee benefit plan governed by the
laws of a jurisdiction other than the United States and (ii) with the terms of
any such plan, except, in each case, for such noncompliance that could not
reasonably be expected to have a Material Adverse Effect.
SECTION 3.16 ENVIRONMENTAL MATTERS. Except as disclosed in SCHEDULE
3.16 and except as to matters that could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect (i) no written
notice, request for information, order, complaint or penalty has been received
by the Term Borrower or any of the Material Subsidiaries relating to the Term
Borrower or any of the Material Subsidiaries, and there are no judicial,
administrative or other actions, suits or proceedings relating to the Term
Borrower or any of the Material Subsidiaries pending or, to the knowledge of
Term Borrower, threatened which allege a violation of or liability under any
Environmental Laws, (ii) each of the Term Borrower and the Material Subsidiaries
has all environmental permits necessary for its current operations to comply
with all applicable Environmental Laws and is, and since January 1, 2001 has
been, in compliance with the terms of such permits and with all other applicable
Environmental Laws, (iii) there has been no written environmental audit
conducted since January 1, 2000 by the Term Borrower or any of the Material
Subsidiaries of any property currently owned or leased by the Term Borrower or
any of the Material Subsidiaries which has not been made available to the
Administrative Agent prior to the date hereof, (iv) no Hazardous Material is
located at any property currently owned, operated or leased by the Term Borrower
or any of the Material Subsidiaries that would reasonably be expected to give
rise to any cost, liability or obligation of the Term Borrower or any of the
Material Subsidiaries under any Environmental Laws, and no Hazardous Material
has been generated, owned or controlled by the Term Borrower or any of the
Material Subsidiaries and transported to or released at any location in a manner
that would
-92-
reasonably be expected to give rise to any cost, liability or obligation of the
Term Borrower or any of the Material Subsidiaries under any Environmental Laws,
and (v) there are no acquisition agreements entered into after December 31, 2000
in which the Term Borrower or any of the Material Subsidiaries has expressly
assumed or undertaken responsibility for any liability or obligation of any
other Person arising under or relating to Environmental Laws, which in any such
case has not been made available to the Administrative Agent prior to the date
hereof.
SECTION 3.17 SECURITY DOCUMENTS. (a) Each of the Security Documents
described in Part I of SCHEDULE 1.01(a) will as of the Closing Date be
effective, and each of the Security Documents described in Part II of SCHEDULE
1.01(a) will as of the Restructuring Date be effective, to create in favor of
the Collateral Agent (for the benefit of the Secured Parties) a legal, valid and
enforceable security interest in the Collateral described therein (subject to
any limitations specified therein). In the case of the Pledged Collateral
described in any of such Security Documents the security interest in which is
perfected by delivery thereof, when certificates or promissory notes, as
applicable, representing such Pledged Collateral are delivered to the Collateral
Agent, and in the case of the other Collateral described in any such Security
Document (other than the Intellectual Property (as defined in the U.S.
Collateral Agreement)), when financing statements and other filings specified on
SCHEDULE 6 of the Perfection Certificate in appropriate form are filed in the
offices specified on SCHEDULE 7 of the Perfection Certificate, the Collateral
Agent (for the benefit of the Secured Parties) shall have a fully perfected Lien
on, and security interest in, all right, title and interest of the Loan Parties
in such Collateral, as security for the Obligations secured thereby, in each
case prior and superior in right to any other person (except, in the case of
Collateral other than Pledged Collateral, Liens expressly permitted by Section
6.02 and Liens having priority by operation of law).
(b) When the U.S. Collateral Agreement or a summary thereof is
properly filed in the United States Patent and Trademark Office and the United
States Copyright Office, and, with respect to Collateral in which a security
interest cannot be perfected by such filings, upon the proper filing of the
financing statements referred to in paragraph (a) above, the Collateral Agent
(for the benefit of the Secured Parties) shall have a fully perfected Lien on,
and security interest in, all right, title and interest of the Loan Parties
thereunder in the Intellectual Property, in each case prior and superior in
right to any other person except Liens expressly permitted by Section 6.02 and
Liens having priority by operation of law (it being understood that subsequent
recordings in the United States Patent and Trademark Office and the United
States Copyright Office may be necessary to perfect a lien on registered
trademarks and patents, trademark and patent applications and registered
copyrights acquired by the grantors after the Closing Date).
(c) Each Foreign Pledge Agreement will be effective to create in
favor of the Collateral Agent, for the benefit of the Secured Parties, a legal,
valid and enforceable security interest in the Collateral described therein. In
the case of the Pledged Collateral described in a Foreign Pledge Agreement, the
security interest in which is perfected by delivery thereof, when certificates
or promissory notes, as applicable, representing such Pledged Collateral are
delivered to the Collateral Agent, and, in the case of all other Collateral
provided for therein, when filings or recordings are made in the appropriate
offices in each relevant jurisdiction and the other actions, if any, specified
in such Foreign Pledge Agreement are taken, the Collateral Agent (for the
benefit of the Secured Parties) shall have a fully perfected Lien on, and
security interest in,
-93-
all right, title and interest of the Loan Parties in such Collateral, as
security for the Obligations secured thereby, in each case prior and superior in
right to any other person (except, in the case of Collateral other than Pledged
Collateral, Liens expressly permitted by Section 6.02 and Liens having priority
by operation of law).
(d) The Mortgages set forth on SCHEDULE 5.14 executed and
delivered on or after the Closing Date pursuant to Section 5.14 and the
Mortgages executed and delivered after the Closing Date pursuant to Section 5.10
shall be effective to create in favor of the Collateral Agent (for the 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 Property thereunder
and the proceeds thereof, and when such Mortgages are filed or recorded in the
proper real estate filing or recording offices, the Collateral Agent (for the
benefit of the Secured Parties) shall have a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in such
Mortgaged Property and, to the extent applicable, 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
a Person pursuant to Liens expressly permitted by Section 6.02(a) and Liens
having priority by operation of law.
SECTION 3.18 LOCATION OF REAL PROPERTY AND LEASED PREMISES. (a)
SCHEDULE 8 to the Perfection Certificate lists completely and correctly as of
the Closing Date all material real property owned by Holdings, the Term Borrower
and the Domestic Subsidiary Loan Parties and the addresses thereof. As of the
Closing Date, Holdings, the Term Borrower and the Domestic Subsidiaries own in
fee all the real property set forth as being owned by them on such Schedule.
(b) SCHEDULE 8 to the Perfection Certificate lists completely and
correctly as of the Closing Date all material real property leased by Holdings,
the Term Borrower and the Domestic Subsidiary Loan Parties and the addresses
thereof. As of the Closing Date, Holdings, the Term Borrower and the Domestic
Subsidiary Loan Parties have valid leases in all the real property set forth as
being leased by them on such Schedule.
SECTION 3.19 SOLVENCY. (A) (a) Both (x) immediately after giving
effect to the Transaction and (y) on the Restructuring Date (i) the fair value
of the assets of Holdings and its Subsidiaries on a consolidated basis, at a
fair valuation, will exceed the debts and liabilities, direct, subordinated,
contingent or otherwise, of Holdings and its Subsidiaries on a consolidated
basis; (ii) the present fair saleable value of the property of Holdings and its
Subsidiaries on a consolidated basis will be greater than the amount that will
be required to pay the probable liability of Holdings 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) Holdings 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)
Holdings 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 and (B) after giving effect to the Transaction and prior to the
Restructuring Date, Parent (x) has not ceased, and does not expect that it will
cease, making payments on its liabilities when due and (y) can, and expects that
it can, obtain credit in the ordinary course of business.
-94-
(b) Neither Holdings nor the Term Borrower intends to, and does
not believe that it or any of the Material 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 3.20 LABOR MATTERS. There are no strikes pending or
threatened against Holdings, the Term Borrower or any of the Material
Subsidiaries that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. The hours worked and payments made
to employees of Holdings, the Term Borrower and the Material 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 Term Borrower or any of the Material Subsidiaries or for
which any claim may be made against Holdings, the Term Borrower or any of the
Material 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 Term Borrower or such Material Subsidiary to the extent
required by US GAAP. Except as set forth on SCHEDULE 3.20, 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 Term Borrower or any of the Material Subsidiaries (or any
predecessor) is a party or by which Holdings, the Term Borrower or any of the
Material Subsidiaries (or any predecessor) is bound, other than collective
bargaining agreements that, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
SECTION 3.21 INSURANCE. SCHEDULE 3.21 sets forth a true, complete and
correct description of all material insurance maintained by or on behalf of
Holdings, the Term Borrower or the Material Subsidiaries as of the Closing Date.
As of the Closing Date, such insurance is in full force and effect. The Term
Borrower believes that the insurance maintained by or on behalf of Holdings, the
Term Borrower and the Material Subsidiaries is adequate.
ARTICLE IV
CONDITIONS OF LENDING
The obligations of (a) the Lenders (including the Swingline Lenders)
to make Loans and (b) any Issuing Bank to issue Letters of Credit or increase
the stated amounts of 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 the making of each
Loan (other than as provided in Section 4.03) and on the date of each issuance
of, or amendment that increases the stated amount of, a Letter of Credit:
(a) The Administrative Agent shall have received, in the case of a
Borrowing, a Borrowing Request as required by Section 2.03 (or a Borrowing
Request 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 Issuing Bank and the Administrative
-95-
Agent shall have received a Request to Issue such Letter of Credit as
required by Section 2.05(b).
(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 or amendment that increases the stated
amount of such Letter of Credit, as applicable, 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 or amendment that increases the stated amount of such Letter of
Credit, as applicable, no Event of Default or Default shall have occurred
and be continuing.
(d) All of the conditions specified in Section 4.02 shall have
been satisfied or waived on the Closing Date.
Each Borrowing (other than a Purpose Borrowing during the Certain Funds Period)
and each issuance of, or amendment that increases the stated amount of, a Letter
of Credit shall be deemed to constitute a representation and warranty by the
applicable Borrower (in the case of a Borrowing) and each Applicant Party (in
the case of a Letter of Credit) on the date of such Borrowing, issuance or
amendment as applicable, as to the matters specified in paragraphs (b) and (c)
of this Section 4.01.
SECTION 4.02 FIRST CREDIT EVENT. Other than as specified in Section
4.03, on the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
(b) The Administrative Agent shall have received, on behalf of
itself, the Collateral Agent, the Lenders and each Issuing Bank on the
Closing Date, a favorable written opinion of (i) Xxxxxxx Xxxxxxx & Xxxxxxxx
LLP, special counsel for Holdings and the Term Borrower, in form and
substance reasonably satisfactory to the Administrative Agent and (ii)
local U.S. and/or foreign counsel reasonably satisfactory to the
Administrative Agent as specified on SCHEDULE 4.02(b), in each case (A)
dated the Closing Date, (B) addressed to each Issuing Bank on the Closing
Date, the Administrative Agent, the Collateral Agent and the Lenders and
(C) in form and substance reasonably satisfactory to the Administrative
Agent and covering such other matters relating to the Financing Documents
and the Transaction as the Administrative Agent shall reasonably request,
and each of Holdings and the Term Borrower hereby instructs its counsel to
deliver such opinions.
-96-
(c) 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 Administrative Agent.
(d) The Administrative Agent shall have received in the case of
each person that is a Loan Party on the Closing Date each of the items
referred to in clauses (i), (ii), (iii) and (iv) below:
(i) a copy of the certificate or articles of incorporation,
memorandum and articles of association, partnership agreement or
limited liability agreement, including all amendments thereto, of each
Loan Party, (A) in the case of a corporation, certified as of a recent
date by the Secretary of State (or other similar official) of the
jurisdiction of its organization, and a certificate as to the good
standing under the jurisdiction of its organization (to the extent
such concept or a similar concept exists under the laws of such
jurisdiction) of each such Loan Party as of a recent date from such
Secretary of State (or other similar official), (B) in the case of a
partnership or limited liability company, certified by the manager,
Secretary or Assistant Secretary or other appropriate officer of each
such Loan Party or (C) in the case of a Cayman Islands exempted
company, a copy of the memorandum and articles of association of such
company stamped as registered and filed as of a recent date by the
Registrar of Companies in the Cayman Islands;
(ii) a certificate of the manager, director, Secretary or
Assistant Secretary or similar officer of each Loan Party dated the
Closing Date and certifying
(A) 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 (B) below,
(B) 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 a Borrower, the
borrowings hereunder, and that such resolutions have not been
modified, rescinded or amended and are in full force and
effect on the Closing Date,
(C) that the certificate or articles of incorporation,
memorandum and articles of association, 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 (i) above,
-97-
(D) 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
and
(E) as to the absence of any pending proceeding for the
dissolution or liquidation of such Loan Party or, to the
knowledge of such person, threatening the existence of such
Loan Party;
(iii) a certificate of another officer, director or
attorney-in-fact as to the incumbency and specimen signature of the
Secretary or Assistant Secretary or similar officer executing the
certificate pursuant to clause (ii) above; and
(iv) such other documents as the Administrative Agent may
reasonably request (including, without limitation, tax identification
numbers and addresses).
(e) The Collateral and Guarantee Requirements required to be
satisfied as of the Closing Date shall have been satisfied or waived and
the Administrative Agent shall have received a completed Perfection
Certificate dated the Closing Date and signed by a Responsible Officer of
CAC and each CAC Guarantor Subsidiary, together with all attachments
contemplated thereby, including the results of a search of the Uniform
Commercial Code (or equivalent) filings made with respect to CAC and each
CAC Guarantor Subsidiary in the jurisdictions contemplated by the
Perfection Certificates and copies of the financing statements (or similar
documents) disclosed by such search and evidence reasonably satisfactory to
the Administrative Agent that the Liens indicated by such financing
statements (or similar documents) are permitted by Section 6.02 or have
been or will promptly be released.
(f) The Consummation of the Offer shall have occurred;
(g) Each of the Holdco Equity Financing, the Senior Subordinated
Bridge B Loans and the Senior Subordinated Bridge C Loans shall have been
effected as described in the recitals of this Agreement (including the
tenth recital).
(h) The Bidco Loan and a CAC Loan (in an amount not less than the
principal amount of the Term Loans incurred on the Closing Date) shall have
been, or shall concurrently be, effected.
(i) The Lenders shall have received the financial statements
referred to in Section 3.05(a).
(j) The Lenders shall have received the pro forma consolidated
balance sheet referred to in Section 3.05(b).
(k) After giving effect to the Transaction and the other
transactions contemplated hereby, Holdings and its Subsidiaries shall have
outstanding no Indebtedness other than (i) the Loans and other extensions
of credit under this Agreement, (ii) the Senior Subordinated Bridge B
Loans, (iii) the Senior Subordinated Bridge C Loans and (iv) other
Indebtedness permitted pursuant to Section 6.01.
-98-
(l) The Lenders shall have received a solvency certificate
substantially in the form of EXHIBIT K and signed by a director or a
Responsible Officer of Holdings confirming the solvency of Holdings and its
Subsidiaries on a consolidated basis after giving effect to the
Transaction.
(m) No provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit the consummation of
the Transaction, and all material actions by or in respect of or material
filings with any Governmental Authority required to permit the consummation
of the Transaction shall have been taken, made or obtained, except for any
such actions or filings the failure to take, make or obtain would not be
material to Holdings and its Subsidiaries, taken as a whole.
(n) The Administrative Agent shall have received all fees payable
to it, Xxxxxx Xxxxxxx or any other Lender on or prior to the Closing Date
and, to the extent invoiced, all other amounts due and payable pursuant to
the Loan Documents on or prior to the Closing Date, including, to the
extent invoiced, reimbursement or payment of all reasonable out-of-pocket
expenses (including reasonable fees, charges and disbursements of White &
Case LLP and U.S. and foreign local counsel) required to be reimbursed or
paid by the Loan Parties hereunder or under any Loan Document.
SECTION 4.03 CERTAIN FUNDS PERIOD. During the Certain Funds Period,
and not withstanding any provisions of any Loan Document to the contrary, each
Purpose Borrowing shall be made notwithstanding non-satisfaction of any
conditions specified in Section 4.01 and/or 4.02, but shall be subject to the
satisfaction of the conditions specified in Sections 4.01(a), 4.02(a), (b), (d)
(other than (d)(iv)), (g), (n) and the following conditions:
(a) Holdings or the Term Borrower shall not have cancelled or
rescinded the Facilities;
(b) the Offer shall have been accepted with respect to at least
75% of the registered ordinary shares of the Company outstanding at the end
of the acceptance period under the Offer, excluding treasury shares; and
(c) at the time of and immediately after giving effect to such
Borrowing or such issuance of a Letter of Credit, as applicable, (i) no
Major Default shall have occurred and be continuing and (ii) the
representations and warranties contained in Sections 3.01(a), (b) and (d)
and 3.02 with respect to Holdings, Parent and/or Bidco and 3.10 shall be
true and correct in all material respects.
For the avoidance of doubt, during the Certain Funds Period (other than as
referred to above) no Lender shall (a) exercise any right to terminate the
obligation to make any Loan, (b) exercise any right of rescission in respect of
this Agreement or in respect of a Loan or (c) exercise any right of
acceleration, termination, cancellation or set-off in respect of any Loan (other
than set-off in respect of fees, costs and expenses as agreed in the funds flow
document).
SECTION 4.04 CREDIT EVENTS RELATING TO REVOLVING BORROWERS. The
obligations of (x) the Lenders to make any Loans to any Revolving Borrower
designated after the Closing Date in accordance with Section 2.20 and (y) any
Issuing Bank to issue Letters of Credit for the
-99-
account of any such Revolving Borrower, are subject to the satisfaction of the
following conditions (which are in addition to the conditions contained in
Section 4.01):
(a) With respect to the initial Loan made to or the initial Letter
of Credit issued at the request of, such Revolving Borrower, whichever
comes first,
(i) the Administrative Agent (or its counsel) shall have
received a Revolving Borrower Agreement with respect to such Revolving
Borrower duly executed by all parties thereto; and
(ii) the Administrative Agent shall have received such
documents (including legal opinions) and certificates as the
Administrative Agent or its counsel may reasonably request relating to
the formation, existence and good standing of such Revolving Borrower,
the authorization of Borrowings as they relate to such Revolving
Borrower and any other legal matters relating to such Revolving
Borrower or its Revolving Borrower Agreement, all in form and
substance reasonably satisfactory to the Administrative Agent and its
counsel.
(b) The Administrative Agent shall be reasonably satisfied that
Section 5.10(f) shall have been complied with in respect of each Foreign
Subsidiary that becomes a Revolving Borrower and that the Collateral and
Guarantee Requirement shall have been satisfied or waived with respect to
such Foreign Revolving Borrower.
ARTICLE V
AFFIRMATIVE COVENANTS
Each of Holdings and the Term 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 Term Borrower will, and (other than Sections 5.04 and 5.05) will cause each
of the Material 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 if
the assets of such Subsidiaries to the extent they exceed estimated liabilities
are acquired by a Borrower or a Wholly Owned Subsidiary of a Borrower in such
liquidation or dissolution; provided that Subsidiaries that are Loan Parties may
not be liquidated into Subsidiaries that are not Loan Parties and Domestic
Subsidiaries may not be liquidated into Foreign Subsidiaries.
(b) Do or cause to be done all things necessary to (i) obtain,
preserve, renew, extend and keep in full force and effect the permits,
franchises, authorizations, patents, trademarks, service marks, trade names,
copyrights, licenses and rights with respect thereto necessary
-100-
to the normal conduct of its business, (ii) comply in all material respects with
all material applicable laws, rules, regulations (including any zoning,
building, ordinance, code or approval or any building permits or any
restrictions of record or agreements affecting the Mortgaged Properties) and
material judgments, writs, injunctions, decrees and orders of any Governmental
Authority, whether now in effect or hereafter enacted, and (iii) at all times
maintain and preserve all property necessary to the normal conduct of its
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).
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 Mortgage.
(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
any Loan Party under such policies directly to the Collateral Agent; cause all
such policies to provide that neither the Term 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.
(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 or the Collateral Agent 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 a "claims-made" 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 each case in
amounts and against such risks as are customarily maintained by companies
engaged in the same or similar industry operating in the same or similar
locations naming the Collateral
-101-
Agent as an additional insured in respect of such Mortgaged Property, on forms
reasonably satisfactory to the Collateral Agent.
(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 Term Borrower or any of the Subsidiaries; and
promptly deliver to the Administrative Agent and the Collateral Agent a
duplicate original copy of such policy or policies, or an 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, the Issuing 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 Term 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 Issuing 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 Term 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 Issuing 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 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 Term Borrower and their Subsidiaries or the protection of
their properties.
SECTION 5.03 TAXES. Pay and discharge promptly when due all material
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 that, 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 the validity or amount thereof shall be
contested in good faith by appropriate proceedings, and Holdings, the Term
Borrower or the affected Subsidiary, as applicable, shall have set aside on its
books reserves in accordance with US GAAP with respect thereto.
SECTION 5.04 FINANCIAL STATEMENTS, REPORTS, ETC.Furnish to the
Administrative Agent (which will furnish such information to the Lenders):
(a) within 90 days after the end of each fiscal year, a
consolidated balance sheet and related consolidated statements of
operations, cash flows and owners' equity
-102-
showing the financial position of Holdings and the Subsidiaries as of the
close of such fiscal year and the consolidated results of their operations
during such year, with all consolidated statements 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 Holdings and
the Subsidiaries on a consolidated basis in accordance with US GAAP (it
being understood that the delivery by Holdings of Annual Reports on Form
10-K of Holdings and its consolidated Subsidiaries shall satisfy the
requirements of this Section 5.04(a) to the extent such Annual Reports
include the information specified herein);
(b) within 45 days (75 days in the case of the fiscal quarter
ending June 30, 2004) after the end of each of the first three fiscal
quarters of each fiscal year commencing with the fiscal quarter ending June
30, 2004, a consolidated balance sheet and related consolidated statements
of operations and cash flows showing the financial position of Holdings 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, on behalf of Holdings, as fairly presenting, in all
material respects, the financial position and results of operations of
Holdings and its Subsidiaries on a consolidated basis in accordance with US
GAAP (subject to normal year-end adjustments and the absence of footnotes)
(it being understood that the delivery by Holdings of Quarterly Reports on
Form 10-Q of Holdings and its consolidated Subsidiaries shall satisfy the
requirements of this Section 5.04(b) to the extent such Quarterly Reports
include the information specified herein);
(c) (x) concurrently with any delivery of financial statements
under (a) or (b) above, (A) a certificate of a Financial Officer of
Holdings (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) commencing with the fiscal period
ending June 30, 2004, setting forth computations in reasonable detail
satisfactory to the Administrative Agent demonstrating compliance with the
covenants contained in Sections 6.10, 6.11, 6.12 and 6.13 and (B) a
reasonably detailed break-out of operational performance by business units
for the year or quarter then ended and (y) concurrently with any delivery
of financial statements under (a) above, a certificate of the accounting
firm opining on or certifying such statements stating whether they obtained
knowledge during the course of their examination of such statements of any
Default or Event of Default (which certificate may be limited to accounting
matters and disclaims responsibility for legal interpretations);
(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 Term Borrower or any of the Subsidiaries with the SEC, or
after an initial public offering, distributed to its stockholders
generally, as applicable;
-103-
(e) if, as a result of any change in accounting principles and
policies from those as in effect on the Closing Date, the consolidated
financial statements of Holdings and the Subsidiaries delivered pursuant to
paragraphs (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 reconciling such
changes to what the financial statements would have been without such
changes;
(f) within 90 days after the beginning of each fiscal year, an
operating and capital expenditure budget, in form reasonably satisfactory
to the Administrative Agent prepared by Holdings for each of the four
fiscal quarters of such fiscal year prepared in reasonable detail, of
Holdings and the 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) upon the reasonable request of the Administrative Agent (which
request shall not be made more than once in any 12-month period), deliver
updated Perfection Certificates (or, to the extent such request relates to
specified information contained in the Perfection Certificates, such
information) reflecting all changes since the date of the information most
recently received pursuant to this paragraph (g) or Section 5.10(e);
(h) promptly, a copy of all reports submitted to the Board of
Directors (or any committee thereof) of any of Holdings, the Term Borrower
or any Material Subsidiary in connection with any interim or special audit
that is material made by independent accountants of the books of Holdings,
the Term Borrower or any Subsidiary;
(i) for the period prior to the Bridge Termination Date promptly
following delivery thereof to any Permitted Investor, periodic information
packages relating to the operations and cash flows of Holdings and the
Subsidiaries;
(j) promptly, from time to time, such other information regarding
the operations, business affairs and financial condition of Holdings, the
Term Borrower or any of the Subsidiaries, or compliance with the terms of
any Loan Document, as in each case the Administrative Agent may reasonably
request;
(k) promptly upon request by the Administrative Agent, copies of:
(i) each SCHEDULE B (Actuarial Information) to the annual report (Form 5500
Series) filed with the Internal Revenue Service with respect to a Plan;
(ii) the most recent actuarial valuation report for any Plan; (iii) all
notices received from a Multiemployer Plan sponsor or any governmental
agency concerning an ERISA Event; and (iv) such other documents or
governmental reports or filings relating to any Plan or Multiemployer Plan
as the Administrative Agent shall reasonably request; and
(l) promptly and in any event within 45 days after the Closing
Date, an unaudited consolidated balance sheet and related unaudited
consolidated statements of
-104-
operations and cash flow showing the financial position of the Company and
its subsidiaries as of the close of the period commencing January 1, 2004
and ending on either the Closing Date or March 31, 2004 (at the election of
the Company) and the consolidated results of their operations during such
period certified by a Responsible Officer of, and acting on behalf of,
Holdings or the Company as fairly presenting, in all material respects, the
financial position and results of operations of the Company and its
subsidiaries on a consolidated basis (subject to normal year end
adjustments and the absence of footnotes).
SECTION 5.05 LITIGATION AND OTHER NOTICES. Furnish to the
Administrative Agent written notice of the following promptly after any
Responsible Officer of Holdings or the Term 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 or in arbitration, against Holdings, the Term Borrower or any of
the Subsidiaries as to which an adverse determination is reasonably
probable and which, if adversely determined, could reasonably be expected
to have a Material Adverse Effect;
(c) any other development specific to Holdings, the Term Borrower
or any of the Subsidiaries that is not a matter of general public knowledge
and that has had, or could reasonably be expected to have, a Material
Adverse Effect; and
(d) the occurrence of any ERISA Event, that together with all
other ERISA Events that have occurred, could reasonably be expected to have
a Material Adverse Effect.
SECTION 5.06 COMPLIANCE WITH LAWS. Comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect;
PROVIDED that this Section 5.06 shall not apply to Environmental Laws, which are
the subject of Section 5.09, or to laws related to Taxes, which are the subject
of Section 5.03.
SECTION 5.07 MAINTAINING RECORDS; ACCESS TO PROPERTIES AND
INSPECTIONS. Maintain all financial records in accordance with US GAAP and
permit any persons designated by the Agents or, upon the occurrence and during
the continuance of an Event of Default, any Lender to visit and inspect the
financial records and the properties of Holdings, the Term Borrower or any of
the Subsidiaries at reasonable times, upon reasonable prior notice to Holdings
or the Term 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, upon the occurrence and during the continuance of an Event of
Default, any Lender upon reasonable prior notice to Holdings or the Term
Borrower to discuss the affairs, finances and condition of
-105-
Holdings, the Term Borrower or any of the Subsidiaries with the officers thereof
and (subject to a senior officer of the respective company or a parent thereof
being present) 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 Loans and request
issuances of Letters of Credit only in compliance with the representation
contained in Section 3.12.
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 applicable to its operations
and properties; and obtain and renew all material authorizations and permits
required pursuant to Environmental Law for its operations and properties, in
each case in accordance with Environmental Laws, except, in each case with
respect to this Section 5.09, to the extent the failure to do so could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
SECTION 5.10 FURTHER ASSURANCES; ADDITIONAL MORTGAGES. (a) Execute
any and all further documents, financing statements, agreements and instruments,
and take all such further actions (including the filing and recording of
financing statements, fixture filings, Mortgages and other documents and
recordings of Liens in stock registries), that may be required under any
applicable law, or that the Administrative Agent may reasonably request, to
cause the Collateral and Guarantee Requirement to be and remain satisfied, all
at the expense of the Loan Parties and provide to the Administrative Agent, from
time to time upon reasonable request, evidence reasonably satisfactory to the
Administrative Agent as to the perfection and priority of the Liens created or
intended to be created by the Security Documents.
(b) If any asset (including any real property (other than real
property covered by Section 5.10(c) below) or improvements thereto or any
interest therein) that has an individual fair market value in an amount having a
Dollar Equivalent greater than $20.0 million is acquired by Holdings, the Term
Borrower or any Domestic Subsidiary Loan Party after the Closing Date or owned
by an entity at the time it first becomes a Domestic Subsidiary Loan Party (in
each case other than assets constituting Collateral under a Security Document
that become subject to the Lien of such Security Document upon acquisition
thereof), cause such asset to be subjected to a Lien securing the Obligations
and take, and cause the Domestic Subsidiary Loan Parties to take, such actions
as shall be necessary or reasonably requested by the Administrative Agent to
grant and perfect such Liens, including actions described in paragraph (a) of
this Section, all at the expense of the Loan Parties, subject to paragraph (g)
below.
(c) Grant (when the Term Borrower is US Holdco), and cause each of
the Domestic Subsidiary Loan Parties to grant, to the Collateral Agent security
interests and mortgages in such real property of the Term Borrower (when it is
US Holdco) or any such Domestic Subsidiary Loan Parties as are not covered by
the original Mortgages, to the extent acquired after the Closing Date and having
a fair market value (as determined in good faith by Holdings) at the time of
acquisition in excess of $20.0 million 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
(each, an "ADDITIONAL MORTGAGE") and constituting valid and enforceable
perfected Liens superior to and prior to the
-106-
rights of all third persons subject to no other Liens except as are permitted by
Section 6.02 or arising by operation of law, at the time of perfection thereof,
record or file, and cause each such Subsidiary to record or file, the Additional
Mortgage or instruments related thereto 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 pay, and cause each such Subsidiary to pay, in full, all Taxes,
fees and other charges payable in connection therewith, in each case subject to
paragraph (g) below. With respect to each such Additional Mortgage, the Term
Borrower shall, unless otherwise waived by the Administrative Agent, deliver to
the Collateral Agent contemporaneously therewith a title insurance policy, a
survey, an opinion of counsel and a Real Property Officers' Certificate meeting
the requirements of subsection (i) of the definition of the term "Collateral and
Guarantee Requirement."
(d) If any additional direct or indirect Subsidiary of Holdings is
formed or acquired after the Closing Date and if such Subsidiary is a Domestic
Subsidiary Loan Party, within 10 Business days after the date such Subsidiary is
formed or acquired, notify the Administrative Agent and the Lenders thereof and,
within 25 Business Days after the date such Subsidiary is formed or acquired,
cause the Collateral and Guarantee Requirement to be satisfied with respect to
such Subsidiary and with respect to any Equity Interest in or Indebtedness of
such Subsidiary owned by or on behalf of any Loan Party.
(e) In the case of the Term Borrower, (i) furnish to the
Collateral Agent prompt written notice of any change (A) in any Loan Party's
corporate or organization name, (B) in any Loan Party's identity or
organizational structure or (C) in any Loan Party's organizational
identification number; PROVIDED that the Term Borrower shall not effect or
permit any such change unless all filings have been made, or will have been made
within any statutory period, under the Uniform Commercial Code or otherwise that
are required in order for the Collateral Agent to continue at all times
following such change to have a valid, legal and perfected security interest in
all the Collateral for the benefit of the Secured Parties and (ii) promptly
notify the Administrative Agent if any material portion of the Collateral is
damaged or destroyed.
(f) Prior to any Foreign Subsidiary becoming a Revolving Borrower,
cause the Collateral and Guarantee Requirement to be satisfied with respect to
such Foreign Subsidiary.
(g) The Collateral and Guarantee Requirement and the other
provisions of this Section 5.10 need not be satisfied with respect to (i) any
real property held by the Term Borrower or any of its Subsidiaries as a lessee
under a lease, (ii) any Equity Interests acquired after the Closing Date in
accordance with this Agreement if, and to the extent that, and for so long as
(A) doing so would violate applicable law or a contractual obligation binding on
such Equity Interests and (B) such law or obligation existed at the time of the
acquisition thereof and was not created or made binding on such Equity Interests
in contemplation of or in connection with the acquisition of such Subsidiary
(PROVIDED that the foregoing clause (B) shall not apply in the case of a joint
venture, including a joint venture that is a Subsidiary) or (iii) any assets
acquired after the Closing Date, to the extent that, and for so long as, taking
such actions would violate a contractual obligation binding on such assets that
existed at the time of the acquisition thereof and was not created or made
binding on such assets in contemplation or in connection
-107-
with the acquisition of such assets (except in the case of assets acquired with
Indebtedness permitted pursuant to Section 6.01(i) that is secured by a Lien
permitted pursuant to Section 6.02(i)).
SECTION 5.11 FISCAL YEAR; ACCOUNTING. In the case of Holdings and the
Term Borrower, cause its fiscal year to end on December 28 or on such other date
as is consented to by the Administrative Agent (which consent shall not be
unreasonably withheld or delayed).
SECTION 5.12 INTEREST RATE PROTECTION AGREEMENTS. In the case of the
Term Borrower, as promptly as practicable and in any event within 180 days after
the Closing Date, enter into, and for a period of not less than three years
after the Closing Date maintain in effect, one or more Swap Agreements, the
effect of which is that at least 50% of Consolidated Net Debt will bear interest
at a fixed or capped rate or the interest cost in respect of which will be fixed
or capped, in each case on terms and conditions reasonably acceptable, taking
into account current market conditions, to the Administrative Agent.
SECTION 5.13 PROCEEDS OF CERTAIN DISPOSITIONS. If, as a result of the
receipt of any cash proceeds by the Term Borrower or any Subsidiary in
connection with any sale, transfer, lease or other disposition of any asset,
including any Equity Interest, the Term Borrower would be required by the terms
of the Senior Subordinated Bridge B Loan Agreement, the Senior Subordinated
Bridge C Loan Agreement and/or the Senior Subordinated Note Indenture to make an
offer to purchase any Senior Subordinated Bridge B Loans, Senior Subordinated
Bridge C Loans or Senior Subordinated Notes, as applicable, then, in the case of
the Term Borrower or a Subsidiary, prior to the first day on which the Term
Borrower would be required to commence such an offer to purchase, (i) prepay
Loans in accordance with Section 2.11 or (ii) acquire assets, Equity Interests
or other securities in a manner that is permitted by Section 6.04 or Section
6.05, in each case in a manner that will eliminate any such requirement to make
such an offer to purchase.
SECTION 5.14 POST-CLOSING MATTERS. To the extent not executed and
delivered on the Closing Date, execute and deliver the documents and complete
the tasks set forth on SCHEDULE 5.14, in each case within the time limits
specified on such schedule.
SECTION 5.15 DELISTING. In the case of the Term Borrower, use its
commercially reasonable best efforts to effect the Delisting as promptly as
possible.
ARTICLE VI
NEGATIVE COVENANTS
Each of Holdings and the Term 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
Term Borrower will, or, subject to Section 6.16, will cause or permit any of the
Subsidiaries to:
-108-
SECTION 6.01 INDEBTEDNESS. Incur, create, assume or permit to exist
any Indebtedness (other than intercompany current liabilities incurred in the
ordinary course of business in connection with the cash management operations of
the Term Borrower and its subsidiaries), except:
(a) (i) Indebtedness (other than under letters of credit) existing
on the Closing Date and set forth on SCHEDULE 6.01(a) and any Permitted
Refinancing Indebtedness incurred to Refinance such Indebtedness and (ii)
Indebtedness under letters of credit existing on the Closing Date and set
forth on SCHEDULE 6.01(b), without giving effect to any extension, renewal
or replacement thereof;
(b) Indebtedness created hereunder and under the other Financing
Documents;
(c) Indebtedness of Holdings and the Subsidiaries pursuant to Swap
Agreements permitted by Section 6.14;
(d) Indebtedness owed to (including obligations in respect of
letters of credit or bank guarantees or similar instruments for the benefit
of) any person providing workers' compensation, health, disability or other
employee benefits or property, casualty or liability insurance to Holdings
or any Subsidiary, pursuant to reimbursement or indemnification obligations
to such person, PROVIDED that upon the incurrence of Indebtedness with
respect to reimbursement obligations regarding workers' compensation
claims, such obligations are reimbursed not later than 30 days following
such incurrence;
(e) Indebtedness of any Borrower to any Subsidiary or other
Borrower and of any Subsidiary to any Borrower or any other Subsidiary,
PROVIDED that (i) Indebtedness of any Subsidiary that is not a Domestic
Subsidiary Loan Party to the Loan Parties shall be subject to Section
6.04(b) and (ii) Indebtedness (the "SUBORDINATED INTERCOMPANY DEBT") of any
Specified Loan Party to any Subsidiary (unless such Indebtedness shall have
been pledged in favor of the Collateral Agent by the payee Subsidiary)
shall be subordinated to the Obligations in the manner set forth in Exhibit
H (it being agreed that such subordination provisions will not restrict the
repayment of any such Subordinated Intercompany Debt other than when an
Event of Default exists);
(f) Indebtedness in respect of performance bonds, bid bonds,
appeal bonds, surety bonds and completion guarantees and similar
obligations, 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;
(g) 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 or other cash
management services in the ordinary course of business, PROVIDED that (x)
such Indebtedness (other than credit or purchase cards) is extinguished
within three Business Days of its incurrence and (y) such Indebtedness in
respect of credit or purchase cards is extinguished within 60 days from its
incurrence;
(h) (i) Indebtedness of a Subsidiary acquired after the Closing
Date or a corporation merged into or consolidated with the Term Borrower or
any Subsidiary after
-109-
the Closing Date and Indebtedness assumed in connection with the
acquisition of assets, which Indebtedness in each case, exists at the time
of such acquisition, merger or consolidation and is not created in
contemplation of such event and where such acquisition, merger or
consolidation is permitted by this Agreement and (ii) any Permitted
Refinancing Indebtedness incurred to Refinance such Indebtedness, PROVIDED
that the aggregate principal amount of such Indebtedness at the time of,
and after giving effect to, such acquisition, merger or consolidation, such
assumption or such incurrence, as applicable (together with Indebtedness
outstanding pursuant to this paragraph (h), paragraph (i) of this Section
6.01 and the Remaining Present Value of outstanding leases permitted under
Section 6.03), would not exceed 4% of Consolidated Total Assets as of the
end of the fiscal quarter immediately prior to the date of such
acquisition, merger or consolidation, such assumption or such incurrence,
as applicable, for which financial statements have been delivered pursuant
to Section 5.04;
(i) Capital Lease Obligations, mortgage financings and purchase
money Indebtedness incurred by Holdings or any Subsidiary prior to or
within 270 days after the acquisition, lease or improvement of the
respective asset permitted under this Agreement in order to finance such
acquisition or improvement, and any Permitted Refinancing Indebtedness in
respect thereof, in an aggregate principal amount that at the time of, and
after giving effect to, the incurrence thereof (together with Indebtedness
outstanding pursuant to paragraph (h) of this Section 6.01, this paragraph
(i) and the Remaining Present Value of leases permitted under Section 6.03)
would not exceed 4% of Consolidated Total Assets as of the end of the
fiscal quarter immediately prior to the date of such incurrence for which
financial statements have been delivered pursuant to Section 5.04;
(j) Capital Lease Obligations incurred by the Term Borrower or
any Subsidiary in respect of any Sale and Lease-Back Transaction that is
permitted under Section 6.03;
(k) other Indebtedness of the Term Borrower or any Subsidiary, in
an aggregate principal amount at any time outstanding pursuant to this
paragraph (k) not in excess of $175.0 million; PROVIDED that (i) the
aggregate amount of Indebtedness of all Subsidiaries that are not Domestic
Subsidiary Loan Parties outstanding pursuant to this paragraph (k) shall
not at any time exceed $100.0 million and (ii) no Indebtedness incurred
pursuant to this paragraph (k) can be in the form of a Guarantee of
Indebtedness incurred under paragraph (y) of this Section 6.01;
(l) Indebtedness of the Term Borrower (i) pursuant to the Senior
Subordinated Bridge B Facility in an aggregate principal amount that is
equal to the Permitted B Debt Level plus an amount of principal resulting
from any pay in kind interest thereon, (ii) pursuant to the Senior
Subordinated Bridge C Facility in an aggregate principal amount that is not
in excess of the C Debt Amount plus an amount of principal resulting from
any pay in kind interest thereon and (iii) pursuant to the Senior
Subordinated Notes in an aggregate principal amount not in excess of the
principal amount (including principal resulting from any pay in kind
interest thereon) of the Senior Subordinated Bridge B Loans and Senior
Subordinated Bridge C Loans refinanced
-110-
thereby, and any Permitted Senior Subordinated Debt Securities issued to
refinance such Indebtedness;
(m) Guarantees (i) by Holdings and, on and after the Restructuring
Date, by the Domestic Subsidiary Loan Parties of the Indebtedness of the
Term Borrower described in paragraph (l), so long as such Guarantees are
subordinated on terms substantially the same as those on which the Senior
Subordinated Bridge C Loans are subordinated to the Obligations as set
forth in the Senior Subordinated Bridge C Loan Agreement, (ii) by Holdings,
the Term Borrower or any Domestic Subsidiary Loan Party of any other
Indebtedness of the Term Borrower or any Domestic Subsidiary Loan Party
expressly permitted to be incurred under this Agreement, (iii) by the Term
Borrower or any Domestic Subsidiary Loan Party of Indebtedness otherwise
expressly permitted hereunder of any Subsidiary that is not a Domestic
Subsidiary Loan Party to the extent permitted by Section 6.04(b), (iv) by
any Foreign Subsidiary that is not a Loan Party of Indebtedness of another
Foreign Subsidiary that is not a Loan Party subject, however, to Section
6.04(b); PROVIDED that all Foreign Subsidiaries may guarantee obligations
of other Foreign Subsidiaries under ordinary course cash management
obligations, and (v) by the Term Borrower of Indebtedness of Foreign
Subsidiaries incurred for working capital purposes in the ordinary course
of business on ordinary business terms so long as such Indebtedness is
permitted to be incurred under Section 6.01(a), (k) or (t); PROVIDED that
Guarantees by Holdings or any Domestic Subsidiary Loan Party under this
Section 6.01(m) of any other Indebtedness of a person that is subordinated
to other Indebtedness of such Person shall be expressly subordinated to the
Obligations on terms substantially the same as those on which the Senior
Subordinated Bridge C Loans are subordinated under the Senior Subordinated
Bridge C Loan Agreement to the Obligations;
(n) Indebtedness arising from agreements of Holdings or any
Subsidiary 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 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;
(o) Indebtedness in connection with Permitted Receivables
Financings; PROVIDED that the proceeds thereof are applied in accordance
with Section 2.11(c);
(p) letters of credit issued for the account of a Subsidiary that
is not a Loan Party (and the reimbursement obligations in respect of which
are not guaranteed by a Loan Party) in support of a Captive Insurance
Subsidiary's reinsurance of insurance policies issued for the benefit of
Subsidiaries and other letters of credit or bank guarantees (other than
Letters of Credit issued pursuant to Section 2.05) having an aggregate face
amount not in excess of $10.0 million;
(q) Indebtedness supported by a Letter of Credit, in a
principal amount not in excess of the stated amount of such Letter of
Credit;
-111-
(r) Indebtedness consisting of (x) the financing of insurance
premiums or (y) take-or-pay or similar obligations contained in supply
arrangements, in each case, in the ordinary course of business;
(s) Indebtedness consisting of Permitted Senior Subordinated Debt
Securities (as provided for in clause (y) of the definition thereof) to the
extent the Net Proceeds in respect thereof are actually utilized to repay
Term Borrowings;
(t) all premium (if any), interest (including post-petition
interest), fees, expenses, charges and additional or contingent interest on
obligations described in paragraphs (a) through (s) above;
(u) Indebtedness in respect of the Parent CPECs;
(v) Indebtedness in respect of the Initial Intercompany Loans;
(w) Indebtedness incurred on behalf of or representing
Guarantees of Indebtedness of joint ventures not in excess of $25.0 million
at any time outstanding;
(x) if New Term Loans are not incurred as provided for in Section
2.22, Indebtedness of the Term Borrower not in excess of $175.0 million (or
the Euro Equivalent thereof) incurred to effect the Designated Acquisition
(by, if prior to the Restructuring Date, lending the proceeds thereof to
CAC), and guarantees of such Indebtedness (or of the loan to CAC if prior
to the Restructuring Date), with all such loans and guarantees to be
unsecured (except, if prior to the Restructuring Date, as may be agreed by
the Administrative Agent) and the terms and conditions thereof, and all
documents relating thereto, to be reasonably satisfactory to the
Administrative Agent; and
(y) Indebtedness of one or more Subsidiaries organized under the
laws of the People's Republic of China for their own general corporate
purposes in aggregate principal amount not to exceed $150.0 million at any
time outstanding, provided that such Indebtedness (and any Guaranty
thereof) is not Guaranteed by, does not receive any other credit support
from, and is non-recourse to, Holdings and its Subsidiaries other than any
Subsidiary organized under the laws of the People's Republic of China.
Notwithstanding anything to the contrary herein, Holdings shall not be permitted
to incur any Indebtedness other than Indebtedness under Sections 6.01(b) and
(m).
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) at the time owned by it or on any income or revenues
or rights in respect of any thereof, except:
(a) Liens on property or assets of the Company and its
Subsidiaries existing on the Closing Date and set forth on SCHEDULE
6.02(a); PROVIDED that such Liens shall secure only those obligations that
they secure on the Closing Date (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 or any of
its Subsidiaries;
-112-
(b) any Lien created under the Financing Documents or permitted
in respect of any Mortgaged Property by the terms of the applicable
Mortgage;
(c) any Lien on any property or asset of the Term Borrower or any
Subsidiary securing Indebtedness or Permitted Refinancing Indebtedness
permitted by Section 6.01(h), PROVIDED that such Lien (i) does not apply to
any other property or assets of the Term Borrower or any of the
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 which Indebtedness and other obligations are permitted hereunder
that require a pledge of after acquired property, it being understood that
such requirement shall not be permitted to apply to any property to which
such requirement would not have applied but for such acquisition), (ii)
such Lien is not created in contemplation of or in connection with such
acquisition and (iii) in the case of a Lien securing Permitted Refinancing
Indebtedness, any such Lien is permitted, subject to compliance with clause
(e) of the definition of the term "Permitted Refinancing Indebtedness";
(d) Liens for Taxes, assessments or other governmental charges
or levies not yet delinquent or that are being contested in compliance with
Section 5.03;
(e) landlord's, carriers', warehousemen's, mechanics',
materialmen's, repairmen's, construction or other like Liens arising in the
ordinary course of business and securing obligations that are not overdue
by more than 45 days or that are being contested in good faith by
appropriate proceedings and in respect of which, if applicable, Holdings or
any Subsidiary shall have set aside on its books reserves in accordance
with US GAAP;
(f) (i) pledges and deposits made in the ordinary course of
business in compliance with the Federal Employers Liability Act or any
other workers' compensation, 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 and (ii) pledges and deposits securing liability for
reimbursement or indemnification obligations of (including obligations in
respect of letters of credit or bank guarantees for the benefit of)
insurance carriers providing property, casualty or liability insurance to
Holdings or any Subsidiary;
(g) pledges and 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, performance
and return of money bonds, bids, leases, government contracts, trade
contracts, 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;
(h) 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
-113-
that, in the aggregate, do not interfere in any material respect with the
ordinary conduct of the business of Holdings or any Subsidiary;
(i) purchase money security interests in equipment or other
property or improvements thereto hereafter acquired (or, in the case of
improvements, constructed) by Holdings or any Subsidiary (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(i) (including any Permitted Refinancing
Indebtedness in respect thereof), (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 Holdings or any Subsidiary in
connection with such acquisition (or construction) and (iv) such security
interests do not apply to any other property or assets of Holdings or any
Subsidiary (other than to accessions to such equipment or other property or
improvements); PROVIDED, FURTHER, that individual financings of equipment
provided by a single lender may be cross-collateralized to other financings
of equipment provided solely by such lender;
(j) Liens arising out of capitalized 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;
(k) Liens securing judgments that do not constitute an Event of
Default under Section 7.01(j);
(l) other Liens with respect to property or assets of Holdings or
any Subsidiary with an aggregate fair market value (valued at the time of
creation thereof) of not more than $50.0 million at any time;
(m) Liens disclosed by the title insurance policies delivered
pursuant to sub-section (i) of the definition of Collateral and Guarantee
Requirement, Section 5.14 or Section 5.10 and any replacement, extension or
renewal of any such Lien; 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;
PROVIDED, FURTHER, that the Indebtedness and other obligations secured by
such replacement, extension or renewal Lien are permitted by this
Agreement;
(n) Liens in respect of Permitted Receivables Financings;
(o) any interest or title of a lessor under any leases or
subleases entered into by Holdings or any Subsidiary in the ordinary course
of business;
(p) Liens that are contractual rights of set-off (i) relating to
the establishment of depository relations with banks not given in
connection with the issuance of Indebtedness, (ii) relating to pooled
deposit or sweep accounts of Holdings or any Subsidiary to permit
satisfaction of overdraft or similar obligations incurred in the ordinary
course of business of Holdings and the Subsidiaries or (iii) relating to
purchase
-114-
orders and other agreements entered into with customers of Holdings or any
Subsidiary in the ordinary course of business;
(q) Liens arising solely by virtue of any statutory or common
law provision relating to banker's liens, rights of set-off or similar
rights;
(r) Liens securing obligations in respect of trade-related letters
of credit permitted under Section 6.01(f) or (q) 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;
(s) licenses of intellectual property granted in a manner
consistent with past practice;
(t) Liens in favor of customs and revenue authorities arising as
a matter of law to secure payment of customs duties in connection with the
importation of goods;
(u) Liens on the assets of a Foreign Subsidiary that do not
constitute Collateral and which secure Indebtedness of such Foreign
Subsidiary (or of another Foreign Subsidiary) that is not otherwise secured
by a Lien on the Collateral under the Loan Documents and that is permitted
to be incurred under Section 6.01(a), (k) or (t);
(v) Liens upon specific items of inventory or other goods and
proceeds of Holdings or any of the Subsidiaries 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; and
(w) Liens solely on any xxxx xxxxxxx money deposits made by
Holdings or any of the Subsidiaries in connection with any letter of intent
or purchase agreement permitted hereunder; and
(x) Liens on the assets of one or more Subsidiaries organized
under the laws of the People's Republic of China securing Indebtedness
permitted under Section 6.01(y).
Notwithstanding the foregoing, no Liens shall be permitted to exist, directly or
indirectly, on Pledged Collateral, other than Liens in favor of the Collateral
Agent and Liens permitted by Section 6.02(d), (e) or (q).
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 that 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 a Sale and Lease-Back Transaction shall be
permitted so long as at the time the lease in connection therewith is entered
into, and after giving effect to the entering into of such Lease, the Remaining
Present Value of such lease (together with Indebtedness outstanding pursuant to
paragraphs (h) and (i) of Section 6.01 and the Remaining Present Value of
outstanding leases previously entered into under this Section 6.03) would not
exceed 4% of
-115-
Consolidated Total Assets as of the end of the fiscal quarter immediately prior
to the date such lease is entered into for which financial statements have been
delivered pursuant to Section 5.04.
SECTION 6.04 INVESTMENTS, LOANS AND ADVANCES. Purchase, hold or
acquire (including pursuant to any merger with a person that is not a Wholly
Owned Subsidiary immediately prior to such merger) any Equity Interests,
evidences of Indebtedness or other securities of, make or permit to exist any
loans or advances (other than intercompany current liabilities incurred in the
ordinary course of business in connection with the cash management operations of
Holdings and the Subsidiaries) to or Guarantees of the obligations of, or make
or permit to exist any investment in (each, an "INVESTMENT"), any other person,
except:
(a) Guarantees by the Borrowers or any Subsidiary of operating
leases (other than Capital Lease Obligations) or of other obligations that
do not constitute Indebtedness, in each case entered into by any Borrower
or any Subsidiary in the ordinary course of business;
(b) (i) Investments by the Term Borrower or any Subsidiary in the
Equity Interests of the Term Borrower or any Subsidiary; (ii) intercompany
loans from the Term Borrower or any Subsidiary to the Term Borrower or any
Subsidiary; and (iii) Guarantees by the Term Borrower or any Subsidiary of
Indebtedness otherwise expressly permitted hereunder of the Term Borrower
or any Subsidiary; PROVIDED that (I) the sum of (A) Investments (valued at
the time of the making thereof and without giving effect to any write-downs
or write-offs thereof) after the Closing Date by the Loan Parties pursuant
to clause (i) in Subsidiaries (other than the Term Borrower) that are not
Domestic Subsidiary Loan Parties, PLUS (B) intercompany loans after the
Closing Date to Subsidiaries (other than the Term Borrower) that are not
Domestic Subsidiary Loan Parties pursuant to clause (ii), PLUS (C)
Guarantees of Indebtedness after the Closing Date of Subsidiaries (other
than the Term Borrower) that are not Domestic Subsidiary Loan Parties
pursuant to clause (iii) (other than, in each case, to the extent such
Investments, Loans or Guarantees are made (1) by any subsidiary of the Term
Borrower that is not a Loan Party or (2) by a Foreign Subsidiary Loan Party
in or to another Foreign Subsidiary Loan Party) shall not exceed an
aggregate amount equal to $190.0 million (PLUS any return of capital
actually received by the respective investors in respect of investments
theretofore made by them pursuant to above clause b(i)), PLUS (y) the
portion, if any, of the Available Investment Basket Amount on the date of
such election that Holdings elects to apply to this Section 6.04(b)) and
(II) no Guarantees (other than by one or more Subsidiaries organized under
the laws of the People's Republic of China) may be given under this clause
(b) in respect of Indebtedness permitted under Section 6.01(y);
(c) Permitted Investments and investments that were Permitted
Investments when made;
(d) Investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with
or judgments against, customers and suppliers, in each case in the ordinary
course of business;
-116-
(e) Investments of a Subsidiary acquired after the Closing Date or
of a corporation merged into the Term Borrower or merged into or
consolidated with a Subsidiary in accordance with Section 6.05 after the
Closing Date to the extent that such Investments were not made in
contemplation of or in connection with such acquisition, merger or
consolidation and were inexistence on the date of such acquisition, merger
or consolidation;
(f) Investments arising out of the receipt by Holdings or any
Subsidiary of noncash consideration for the sale of assets permitted under
Section 6.05;
(g) (i) loans and advances to employees of Holdings or any
Subsidiary in the ordinary course of business not to exceed $10.0 million
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;
(h) 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 any
prepayments and other credits to suppliers made in the ordinary course of
business;
(i) Swap Agreements permitted pursuant to Section 6.14;
(j) Investments existing on the Closing Date and Investments made
pursuant to binding commitments in effect on the Closing Date, in each case
to the extent set forth on SCHEDULE 6.04;
(k) Investments resulting from pledges and deposits referred to in
Sections 6.02(f) and (g);
(l) other Investments by Holdings or any Subsidiary 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 (i)
$125.0 million (PLUS any returns of capital actually received by the
respective investor in respect of investments theretofore made by it
pursuant to this paragraph (l)), PLUS (ii) the portion, if any, of the
Available Investment Basket Amount on the date such election is made that
the Term Borrower elects to apply to this paragraph (l);
(m) Investments constituting Permitted Business Acquisitions in an
aggregate amount, which shall be deemed to include the principal amount of
Indebtedness that is assumed pursuant to Section 6.01 in connection with
such Permitted Business Acquisitions, not to exceed $200.0 million (net of
any return representing return of capital in respect of any such investment
and valued at the time of the making thereof); PROVIDED that (i) during any
Permitted Business Acquisition Step-Up Period, such amount shall be
increased to $300.0 million, PLUS the portion, if any, of the Available
Investment Basket Amount on the date such election is made that the Term
Borrower elects to apply to this paragraph (m); (ii) if assets acquired in
a Permitted Business Acquisition are not
-117-
acquired by the Term Borrower or a Domestic Subsidiary Loan Party (or a
Person that upon such acquisition becomes a Domestic Subsidiary Loan Party)
or if any Person acquired in a Permitted Business Acquisition is not merged
into the Term Borrower or a Domestic Subsidiary Loan Party or does not
become upon consummation of such Permitted Business Acquisition a Domestic
Subsidiary Loan Party, the aggregate amount expended in respect thereof and
for all such similar Permitted Business Acquisitions shall not exceed an
amount equal to 50% of the amount of Permitted Business Acquisitions
otherwise permitted under this Section 6.04(m); and (iii) that if the
amount of Investments constituting Permitted Business Acquisitions in
accordance with this Section 6.04(m) and outstanding at the time a
Permitted Business Acquisition Step-Up Period ends exceeds the amount of
Investments constituting Permitted Business Acquisitions that would be
permitted under this Section 6.04(m) immediately after the end of such
Permitted Business Acquisition Step-Up Period, then the amount of such
excess (less the amount by which investments constituting Permitted
Business Acquisitions are reduced from such time until the commencement of
the next Permitted Business Acquisition Step-Up Period, if any) shall be
deemed to be permitted under this Section 6.04(m); PROVIDED, FURTHER, that
such excess, if any, shall be deemed an election by the Term Borrower to
utilize the Available Investment Basket Amount in any amount equal to such
excess;
(n) additional Investments may be made from time to time to the
extent made with proceeds of Equity Interests (excluding 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 (as common
equity) to the Term Borrower;
(o) intercompany loans between Foreign Subsidiaries that are not
Loan Parties or from a Foreign Subsidiary to any Domestic Subsidiary of
Holdings that is not a Loan Party and Guarantees permitted by Sections
6.01(m)(i), (ii), (iv) and (v);
(p) Investments arising as a result of Permitted Receivables
Financings;
(q) Investments in respect of the Initial Intercompany Loans and
Initial Equity Contributions;
(r) purchases or other acquisitions after the Closing Date of
shares of the Company that were outstanding on the Closing Date (or issued
in exchange for such outstanding shares);
(s) HC Investments by Bidco, Midco and LP GmbH;
(t) Investments (including by the transfer of assets) in joint
ventures existing on the Closing Date in an aggregate amount (with assets
transferred valued at the fair market value thereof) for all such
Investments made after the Closing Date not to exceed $25.0 million;
(u) JV Reinvestments;
(v) the Designated Acquisition; and
-118-
(w) the Transaction and the Restructuring.
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 issue,
sell, transfer or otherwise dispose of any Equity Interests of the Term Borrower
or any Subsidiary or preferred equity interests of Holdings, 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) (i) the purchase and sale of inventory in the ordinary course
of business by Holdings or any Subsidiary, (ii) the acquisition of any
other asset in the ordinary course of business by Holdings or any
Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or
other property in the ordinary course of business by Holdings or any
Subsidiary, (iv) leases and subleases in the ordinary course of business by
Holdings or any Subsidiary or (v) the sale of Permitted Investments in the
ordinary course of business;
(b) if at the time thereof and immediately after giving effect
thereto no Event of Default shall have occurred and be continuing, (i) the
merger of any Subsidiary into a Borrower in a transaction in which such
Borrower is the surviving corporation, (ii) the merger or consolidation of
any Subsidiary into or with any Subsidiary Loan Party in a transaction in
which the surviving or resulting entity is a Subsidiary Loan Party (which
shall be a Domestic Subsidiary Loan Party if any party to such merger or
consolidation shall be a Domestic Subsidiary) and, in the case of each of
clauses (i) and (ii), no person other than a Borrower or Subsidiary Loan
Party receives any consideration, (iii) the merger or consolidation of any
Subsidiary that is not a Subsidiary Loan Party into or with any other
Subsidiary that is not a Subsidiary Loan Party or (iv) the liquidation or
dissolution or change in form of entity of any Subsidiary (other than a
Borrower) if Holdings determines in good faith that such liquidation or
dissolution is in the best interests of Holdings and is not materially
disadvantageous to the Lenders;
(c) sales, transfers, leases, issuances or other dispositions to
Holdings or a Subsidiary (upon voluntary liquidation or otherwise);
PROVIDED that any sales, transfers, leases, issuances or other dispositions
by a Loan Party to a Subsidiary that is not a Loan Party shall be made in
compliance with Section 6.07; PROVIDED, FURTHER, that the aggregate gross
proceeds of any sales, transfers, leases, issuances or other dispositions
by a Loan Party to a Subsidiary that is not a Domestic Subsidiary Loan
Party in reliance upon this paragraph (c) (other than any thereof made by a
Foreign Subsidiary Loan Party to another Foreign Subsidiary Loan Party) and
the aggregate gross proceeds of any or all assets sold, transferred or
leased in reliance upon paragraph (h) below shall not exceed, in any fiscal
year of Holdings, 5% of Consolidated Total Assets as of the end of the
immediately preceding fiscal year;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
-119-
(e) Investments permitted by Section 6.04, Liens permitted by
Section 6.02 and Dividends permitted by Section 6.06;
(f) the purchase and sale or other transfer (including by
capital contribution) of Receivables Assets pursuant to Permitted
Receivables Financings;
(g) the sale of defaulted receivables in the ordinary course
of business and not as part of an accounts receivables financing
transaction;
(h) sales, transfers, leases, issuances (to the extent of all of
the Equity Interests in a Person then owned by Holdings and its
Subsidiaries) or other dispositions not otherwise permitted by this Section
6.05; PROVIDED that the aggregate gross proceeds (including noncash
proceeds) of any or all such sales, transfers, leases, issuances or
dispositions made in reliance upon this paragraph (h) and in reliance upon
the second proviso to paragraph (c) above shall not exceed, in any fiscal
year of Holdings, 5% of Consolidated Total Assets as of the end of the
immediately preceding fiscal year; PROVIDED, FURTHER, that the Net Proceeds
thereof are applied in accordance with Section 2.11(c);
(i) any merger or consolidation in connection with a Permitted
Business Acquisition, PROVIDED that following any such merger or
consolidation (i) involving a Borrower, such Borrower is the surviving
corporation, (ii) involving a Domestic Subsidiary, the surviving or
resulting entity shall be a Domestic Subsidiary Loan Party that is a Wholly
Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or
resulting entity shall be a Foreign Subsidiary Loan Party that is a Wholly
Owned Subsidiary;
(j) any transactions pursuant to the Restructuring;
(k) licensing and cross-licensing arrangements involving any
technology or other intellectual property of the Term Borrower or any
Subsidiary in the ordinary course of business;
(l) any merger of Bidco and the Company, of Bidco and GP GmbH,
of Midco and LP GmbH, of Midco and GP GmbH, or of Bidco and Midco;
(m) sales, leases or other dispositions of inventory of Holdings
and its Subsidiaries determined by the management of Holdings or the Term
Borrower to be no longer useful or necessary in the operation of the
business of Holdings or any of the Subsidiaries; PROVIDED that the Net
Proceeds thereof are applied in accordance with Section 2.11(c);
(n) the sale of the performance products business of Nutrinova;
PROVIDED that the Net Proceeds of such sale are applied in accordance with
Section 2.11(c); and
(o) the CAMI Sale.
-120-
Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no
action shall be permitted which results in a Change of Control under clause (a)
of the definition thereof, (ii) the Term Borrower shall at all times after the
Restructuring Date own directly (or to the extent all direct and indirect owners
of the Equity Interests of CAC (other than US Holdco) are Domestic Subsidiary
Loan Parties, indirectly) 100% of the Equity Interests of CAC, (iii) neither
Holdings nor any Subsidiary that owns Equity Interests in any Borrower or in any
other Subsidiary that directly owns Equity Interests in any Borrower shall sell,
dispose of, xxxxx x Xxxx on or otherwise transfer such Equity Interests in such
Borrower or in such Subsidiary, as applicable (other than pursuant to the
Restructuring), (iv) each Foreign Subsidiary that is a Revolving Borrower shall
be a Wholly Owned Subsidiary, (v) no sale, transfer, lease, issuance or other
disposition shall be permitted by this Section 6.05 (other than sales,
transfers, leases, issuances or other dispositions to Loan Parties pursuant to
paragraph (c) hereof and purchases, sales or transfers pursuant to paragraph (f)
or (to the extent made to Holdings or a Wholly Owned Subsidiary) (j) hereof)
unless such disposition is for fair market value, (vi) no sale, transfer or
other disposition of assets shall be permitted by paragraph (a), (d) or (m) of
this Section 6.05 unless such disposition is for at least 75% cash consideration
and (vii) no sale, transfer or other disposition of assets in excess of $10.0
million shall be permitted by paragraph (h) of this Section 6.05 unless such
disposition is for at least 75% cash consideration; PROVIDED that for purposes
of clauses (vi) and (vii), the amount of any secured Indebtedness or other
Indebtedness of a Subsidiary that is not a Loan Party (as shown on Holdings' or
such Subsidiary's most recent balance sheet or in the notes thereto) of Holdings
or any Subsidiary of Holdings that is assumed by the transferee of any such
assets shall be deemed cash.
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 Equity Interests payable solely by the issuance of additional
shares of Equity Interests of the Person paying such dividends or distributions)
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 Term Borrower may declare and pay
dividends to, repurchase its Equity Interests from or make other
distributions to the Term Borrower or to any Wholly Owned Subsidiary of the
Term Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the
Term Borrower or any subsidiary that is a direct or indirect parent of such
subsidiary 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
Term Borrower or such subsidiary) based on their relative ownership
interests);
(b) the Term Borrower may declare and pay dividends or make other
distributions to Holdings (or if the direct parent of the Term Borrower is
New US Holdco, to New US Holdco, which in turn will declare and pay as
dividends or distributions such amounts to Holdings) (A) in respect of (i)
overhead, tax liabilities of Holdings (including prior to the consummation
of the Parent Merger, any Tax Distribution necessary to allow Holdings to
make a Tax Distribution in accordance with Section 6.06(f)), legal,
accounting and other professional fees and expenses, (ii) fees and expenses
related to any equity
-121-
offering, investment or acquisition permitted hereunder (whether or not
successful) and (iii) other fees and expenses in connection with the
maintenance of its existence and its ownership of the Term Borrower, and
(B) in order to permit Holdings to make payments permitted by Sections
6.07(b) and (c);
(c) Holdings may purchase or redeem (and the Term Borrower may
declare and pay dividends or make other distributions to Holdings, the
proceeds of which are used so to purchase or redeem) Equity Interests of
Holdings (including related stock appreciation rights or similar
securities) held by then present or former directors, consultants, officers
or employees of Holdings or any of the 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 (c) shall not
exceed in any fiscal year $7.5 million plus the amount of net proceeds (x)
received by Holdings during such calendar year from sales of Equity
Interests of Holdings to directors, consultants, officers or employees of
Holdings or any Subsidiary in connection with permitted employee
compensation and incentive arrangements, which, if not used in any year,
may be carried forward to any subsequent calendar year and (y) of any
key-man life insurance policies recorded during such calendar year;
(d) noncash 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 shall be permitted;
(e) payment may be made to the minority shareholders of the
Company of (x) the "guaranteed dividends" (Ausgleichzahlung) payable
pursuant to the Domination Agreement and (y) the "minimum dividend" payable
in accordance with German Law for 2003; and
(f) (i) with respect to each tax year (or portion thereof) that
Holdings qualifies as a Flow Through Entity, the distribution by Holdings
to the holders of the Equity Interests of Holdings of an amount equal to
the product of (A) the amount of aggregate net taxable income allocated by
Holdings to the direct or indirect holders of the Equity Interests of
Holdings for such period and (B) the Presumed Tax Rate for such period and
(ii) with respect to any tax year (or portion thereof) that Holdings does
not qualify as a Flow Through Entity, the payment of dividends or other
distributions to any direct or indirect holders of Equity Interests of
Holdings in amounts required for such holder to pay federal, state or local
income taxes (as the case may be) imposed directly on such holder to the
extent such income taxes are attributable to the income of Holdings and its
Subsidiaries; PROVIDED, HOWEVER, that in each case the amount of such
payments in respect of any tax year does not exceed the amount that
Holdings and its Subsidiaries would have been required to pay in respect of
federal, state or local taxes (as the case may be) in respect of such year
if Holdings and its Subsidiaries paid such taxes directly as a stand-alone
taxpayer (or stand-alone group).
-122-
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 is (i) otherwise permitted (or required) under
this Agreement (including in connection with any Permitted Receivables
Financing) or (ii) upon terms no less favorable to Holdings or such Subsidiary,
as applicable, than would be obtained in a comparable arm's-length transaction
with a Person that is not an Affiliate; PROVIDED that this clause (ii) shall not
apply to (A) the payment to Blackstone and/or any other Permitted Investor of
monitoring and management fees referred to in paragraph (c) below or fees
payable on the Closing Date or (B) the indemnification of directors of Holdings
and the 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,
(ii) loans or advances to employees of Holdings or any of the
Subsidiaries in accordance with Section 6.04(g),
(iii) transactions among the Borrowers and any Subsidiaries and
transactions among Subsidiaries otherwise permitted by this Agreement,
(iv) the payment of fees and indemnities to directors, officers
and employees of Holdings and the 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 or any amendment thereto to
the extent such amendment is not adverse to the Lenders in any material
respect,
(vi) any employment agreements entered into by Holdings or any of
the Subsidiaries in the ordinary course of business,
(vii) dividends, redemptions and repurchases permitted under Section
6.06,
(viii) any purchase by a Permitted Investor of Equity Interests of
Holdings or any contribution by Holdings to, or purchase by Holdings of,
the equity capital of the Term Borrower; PROVIDED that any Equity Interests
of the Term Borrower purchased by Holdings shall be pledged to the
Collateral Agent on behalf of the Lenders pursuant to the Holdings Pledge
Agreement,
(ix) payments by Holdings or any of the Subsidiaries to Blackstone
made for any financial advisory, financing, underwriting or placement
services or in respect of other investment banking activities, including in
connection with acquisitions or divestitures, which payments are approved
by the majority of the board of directors of Holdings, in good faith,
-123-
(x) subject to paragraph (c) below, the existence of, or the
performance by Holdings, the Term Borrower or any of the Subsidiaries of
its obligations under the terms of, the Offer Document; PROVIDED, HOWEVER,
that the existence of, or the performance by Holdings, the Term Borrower or
any subsidiary of obligations under any future amendment to any such
existing agreement or under any similar agreement entered into after the
Closing Date shall only be permitted by this clause (x) to the extent that
such amendment or new agreement is permitted by Section 6.09(c),
(xi) transactions with Subsidiaries for the purchase or sale of
goods, products, parts and services entered into in the ordinary course of
business in a manner consistent with past practice,
(xii) any transaction in respect of which Holdings delivers to the
Administrative Agent (for delivery to the Lenders) a letter addressed to
the Board of Directors of Holdings from an accounting, appraisal or
investment banking firm, in each case of nationally recognized standing
that is (A) in the good faith determination of Holdings qualified to render
such letter and (B) reasonably satisfactory to the Administrative Agent,
which letter states that such transaction is on terms that are no less
favorable to Holdings or such Subsidiary, as applicable, than would be
obtained in a comparable arm's-length transaction with a person that is not
an Affiliate,
(xiii) subject to paragraph (c) below, the payment of all fees,
expenses, bonuses and awards related to the Transaction contemplated by the
Offer Document, including fees to Blackstone,
(xiv) transactions pursuant to the Restructuring,
(xv) transactions pursuant to any Permitted Receivables Financings,
and
(xvi) transactions with joint ventures for the purchase or sale of
chemicals, equipment and services entered into in the ordinary course of
business and in a manner consistent with past practice.
(c) Make any payment of or on account of monitoring or management
or similar fees payable to Blackstone and all other Permitted Investors in an
aggregate amount in any fiscal year in excess of the greater of (x) $5.0 million
and (y) 2% of EBITDA of Holdings for the immediately preceding fiscal year, plus
reasonable out-of-pocket costs and expenses in connection therewith and unpaid
amounts accrued for prior periods.
SECTION 6.08 BUSINESS OF HOLDINGS AND THE SUBSIDIARIES.
Notwithstanding any other provisions hereof:
(a) Engage at any time in any business or business activity other
than:
(x) in the case of the Term Borrower and any Subsidiary
(other than the Subsidiaries specified in clause (b) below), (i) any
business or business activity conducted by it on the Closing Date and
on the Restructuring Date and any business or business activities
incidental or related thereto, or any business or
-124-
activity that is reasonably similar thereto or a reasonable extension,
development or expansion thereof or ancillary thereto, including the
consummation of the Transaction and the Restructuring and (ii)
performance of its obligations under and in connection with the Loan
Documents, the Senior Subordinated Bridge B Financing Documents, the
Senior Subordinated Bridge C Financing Documents and the Senior
Subordinated Note Indenture, or
(y) in the case of Holdings, (i) ownership of the Equity
Interests in the Intermediate Holdcos and Term Borrower, together with
activities directly related thereto, (ii) performance of its
obligations under and in connection with the Loan Documents, the Offer
Document and the other agreements contemplated by the Offer Document,
the Senior Subordinated Bridge B Debt Financing Documents, the Senior
Subordinated Bridge C Debt Financing Documents and/or the Senior
Subordinated Note Indenture, (iii) actions incidental to the
consummation of the Transaction, (iv) the Guarantees permitted
pursuant to Section 6.01(m), (v) actions required by law to maintain
its existence and/or to reincorporate as a U.S. entity, (vi) the
holding of cash in amounts reasonably required to pay for its own
costs and expenses, (vii) owing and paying legal, registered office
and auditing fees and (viii) the issuance of common Equity Interests.
(b) In the case of Bidco, Midco, LP GmbH or a Special Purpose
Receivables Subsidiary, engage at any time in any business or business
activity, incur any Indebtedness or other obligation (monetary or
otherwise) or permit or suffer to exist any Lien other than:
(w) in the case of Bidco, (i) acquisition and ownership of
the Equity Interests of the Company and any HC Corporation, together
with incidental activities reasonably related thereto, (ii) the
holding of cash in amounts reasonably required to pay for its own
costs and expenses, (iii) any merger with Midco and/or the Company,
(iv) owing and paying legal and auditing fees, (v) HC Activities, (vi)
execution and performance of the Bidco Pledge and (vii) the execution
and performance of any Initial Intercompany Loans;
(x) in the case of Midco, (i) acquisition and ownership of
the Equity Interests of Bidco and any HC Corporation, together with
incidental activities reasonably related thereto, (ii) the holding of
cash in amounts reasonably required to pay for its own costs and
expenses, (iii) any merger with Bidco (or the successor by merger to
Bidco), (iv) owing and paying legal and auditing fees, (v) HC
Activities and (vi) the execution and performance of any Initial
Intercompany Loans;
(y) in the case of LP GmbH, (i) acquisition and ownership of
the Equity Interests of Midco and any HC Corporation, together with
incidental activities reasonably related thereto and the execution and
performance of the LP GmbH Agreements, (ii) the holding of cash in
amounts reasonably required to pay for its own costs and expenses,
(iii) owing and paying legal and auditing fees, (iv)
-125-
HC Activities and (v) the execution and performance of any Initial
Intercompany Loans; or
(z) in the case of a Special Purpose Receivables Subsidiary,
engaging in Permitted Receivables Financings.
SECTION 6.09 LIMITATION ON MODIFICATIONS AND PREPAYMENTS. (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 granting or termination
shall be materially adverse to the Lenders), the articles or certificate of
incorporation or by-laws or partnership agreement or limited liability company
operating agreement (including all agreements establishing, governing or
evidencing the Parent CPEC's) of Holdings, the Term Borrower or any of the
Subsidiaries.
(b) (i) Make (or give any notice in respect of) any voluntary or
optional payment or prepayment on or redemption or acquisition for value
(including, without limitation, by way of depositing with the trustee with
respect thereto money or securities before due for the purposes of paying when
due) of any of the Senior Subordinated Bridge B Loans or the Senior Subordinated
Bridge C Loans or the Senior Subordinated Notes or any Permitted Senior
Subordinated Debt Securities (except for refinancings thereof with Permitted
Senior Subordinated Debt Securities as permitted by Section 6.01(l)); or
(ii) Amend or modify, or permit the amendment or modification of,
any provision of the Senior Subordinated Bridge B Financing Documents, the
Senior Subordinated Bridge C Loan Agreement, the Senior Subordinated Note
Indenture, any other Permitted Senior Subordinated Debt Securities or any
Permitted Receivables Document, or any agreement relating thereto, other than
amendments or modifications that are not in any manner materially adverse to the
Lenders and that do not affect the subordination provisions thereof (if any) in
a manner adverse to the Lenders.
(c) (x) Amend, modify or waive any term of the Offer in a manner
which would materially adversely affect the Lenders without the prior written
approval of the Initial Lenders, (y) amend or modify, or permit the amendment or
modification of, the Offer Document to (i) reduce the minimum tender requirement
of 75%, (ii) increase the price per share above EURO 32.50 or (iii) ameliorate
or replace or terminate any condition or provision relating to the occurrence of
a material adverse change in the business of the Company and (z) without the
prior written approval of the Initial Lenders, to the extent Bidco has any
consent rights under the Offer Document, grant, or permit there to be granted,
any such consent if the effect of granting such consent would result in a breach
or anticipated breach of any representation and warranty or covenant contained
herein or cause an Event of Default hereunder.
(d) Permit any Subsidiary to enter into any agreement or
instrument that by its terms restricts (i) the payment of dividends or
distributions or the making of cash advances by such Subsidiary to Holdings or
any Subsidiary that is a direct or indirect parent of such Subsidiary or (ii)
the granting of Liens by such Subsidiary pursuant to the Security Documents, in
each case other than those arising under any Loan Document, except, in each
case, restrictions existing by reason of:
-126-
(A) restrictions imposed by applicable law;
(B) restrictions contained in any Permitted Receivables Document
with respect to any Special Purpose Subsidiary;
(C) contractual encumbrances or restrictions in effect on the
Closing Date under (x) the Senior Subordinated Bridge B Loan Agreement or
the Senior Subordinated Bridge C Loan Agreement or (y) any agreements
related to any permitted renewal, extension or refinancing of any
Indebtedness existing on the Closing Date that does not expand the scope of
any such encumbrance or restriction;
(D) any restriction on a Subsidiary imposed pursuant to an
agreement entered into for the sale or disposition of all or substantially
all the Equity Interests or assets of a Subsidiary pending the closing of
such sale or disposition;
(E) customary provisions in joint venture agreements and other
similar agreements applicable to joint ventures entered into in the
ordinary course of business;
(F) any restrictions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement to the extent that such
restrictions apply only to the property or assets securing such
Indebtedness;
(G) customary provisions contained in leases or licenses of
intellectual property and other similar agreements entered into in the
ordinary course of business;
(H) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest;
(I) customary provisions restricting assignment of any agreement
entered into in the ordinary course of business;
(J) customary restrictions and conditions contained in any
agreement relating to the sale of any asset permitted under Section 6.05
pending the consummation of such sale; or
(K) any agreement in effect at the time such subsidiary becomes a
Subsidiary, so long as such agreement was not entered into in contemplation
of such person becoming a Subsidiary.
SECTION 6.10 CAPITAL EXPENDITURES. Permit Holdings or the
Subsidiaries to make any Capital Expenditure, except that:
(a) During any fiscal year Holdings and the Subsidiaries may make
Capital Expenditures so long as the aggregate amount thereof does not
exceed $375 million for such fiscal year.
(b) Notwithstanding anything to the contrary contained in
paragraph (a) above, to the extent that the aggregate amount of Capital
Expenditures made by Holdings
-127-
and the Subsidiaries in any fiscal year of Holdings pursuant to Section
6.10(a) is less than the amount set forth for such fiscal year, the amount
of such difference may be carried forward and used to make Capital
Expenditures in the next two succeeding fiscal years; PROVIDED that in any
fiscal year, the amount permitted to be applied to make Capital
Expenditures pursuant to this paragraph (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
the preceding paragraphs (a) and (b), Holdings and the Subsidiaries may
make additional Capital Expenditures at any time in an amount not to exceed
the portion, if any, of the Available Investment Basket Amount on the date
of such Capital Expenditure that the Term Borrower elects to apply to this
Section 6.10(c).
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
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 Asset
Acquisition (or any similar transaction or transactions for which a waiver or a
consent of the Required Lenders pursuant to Section 6.05 has been obtained) or
any incurrence or repayment of Indebtedness (excluding normal fluctuations of
revolving Indebtedness incurred for working capital purposes) 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
------ -----
April 1, 2004 - December 31, 2005 1.70 to 1.00
January 1, 2006 - December 31, 2006 1.80 to 1.00
January 1, 2007 - December 31, 2007 1.85 to 1.00
Thereafter 2.00 to 1.00
SECTION 6.12 TOTAL LEVERAGE RATIO. Permit the Total Leverage Ratio on
the last day of any fiscal quarter occurring in any period set forth below, to
be in excess of the ratio set forth below for such period:
PERIOD RATIO
------ -----
April 1, 2004 - December 31, 2005 5.50 to 1.00
January 1, 2006 - December 31, 2006 5.25 to 1.00
January 1, 2007 - December 31, 2007 5.00 to 1.00
Thereafter 4.75 to 1.00
SECTION 6.13 BANK LEVERAGE RATIO
. Permit the Bank Leverage Ratio on the last day of any fiscal quarter
ending after the Closing Date to be in excess of 3.00:1.00.
SECTION 6.14 SWAP AGREEMENTS. Enter into any Swap Agreement, other
than (a) Swap Agreements required by Section 5.12 or any Permitted Receivables
Financing, (b)
-128-
Swap Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which Holdings or any Subsidiary is exposed in the conduct of
its business or the management of its liabilities and (c) Swap Agreements
entered into not for speculative purposes but in order to effectively cap,
collar or exchange interest rates (from fixed to floating rates, from one
floating rate to another floating rate or otherwise) with respect to any
interest bearing liability or investment of Holdings or any Subsidiary.
SECTION 6.15 NO OTHER "DESIGNATED SENIOR INDEBTEDNESS". None of
Holdings or any Borrower shall designate, or permit the designation of, any
Indebtedness (other than under this Agreement or the other Loan Documents) as
"Designated Senior Indebtedness" or any other similar term for the purpose of
the definition of the same or the subordination provisions contained in the
Senior Subordinated Bridge B Loan Agreement, the Senior Subordinated Bridge C
Loan Agreement or the Senior Subordinated Note Indenture or any indenture
governing any Permitted Senior Subordinated Debt Securities.
SECTION 6.16 LIMITATION ON THE LENDERS' CONTROL OVER GERMAN ENTITIES.
(a) The provisions of Section 6.05, Section 6.06, Section 6.08 and subsections
(a) and (d)(i) of Section 6.09 (the "RELEVANT RESTRICTIVE COVENANTS") shall only
apply to a German Entity (as defined below) in the following manner:
(i) such German Entity (or a parent company thereof which is a
German Entity) shall give the Administrative Agent no less than 45 Business
Days' prior written notice (the "INTENTION NOTICE") of the intention of
such German Entity to carry out any acts or take any steps inconsistent
with the Relevant Restrictive Covenants;
(ii) the Administrative Agent shall be entitled within 15 Business
Days of receipt of an Intention Notice to request that the relevant German
Entity supply the Administrative Agent with any further relevant
information in connection with the proposed action or steps referred to in
such notice; and
(iii) the Administrative Agent shall, if it decides that the
proposed action or steps set out in such notice would reasonably be
expected to be materially prejudicial to the interests of the Lenders under
the Financing Documents, notify the relevant German Entity of such a
decision within 20 Business Days of its receipt of such a notice or receipt
of further relevant information pursuant to clause (a)(ii) above.
(b) If:
(i) the Administrative Agent notifies a German Entity that the
proposed action or steps set out in the relevant Intention Notice pursuant
to paragraph (a) above would reasonably be expected to be materially
prejudicial to the interests of the Lenders under the Financing Documents;
and
(ii) the relevant German Entity nevertheless proceeds to carry out
such proposed actions or steps, the Administrative Agent shall be entitled
to (and, if so instructed by the Required Lenders, shall) exercise all or
any of its rights under Section 7.01 ("EVENTS OF DEFAULT").
-129-
(c) For the purposes of this Section 6.16, a "GERMAN ENTITY" is
any person who is incorporated in Germany or, if it is not so incorporated, has
its seat or principal place of business in Germany.
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 Term Borrower or any other Loan Party in any Loan Document,
or any representation, warranty or material statement 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 Term 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 (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;
(d) default shall be made in the due observance or performance by
Holdings, the Term Borrower or any of the Subsidiaries of any covenant,
condition or agreement contained in Section 5.01(a) (with respect to
Holdings or a Borrower), 5.05(a), 5.08, 5.10(d) or in Article VI;
(e) default shall be made in the due observance or performance by
Holdings, the Term Borrower or any of the Subsidiaries of any covenant,
condition or agreement contained in any Loan Document (other than those
specified in paragraphs (b), (c) and (d) above) and such default shall
continue unremedied for a period of 30 days after written notice thereof
from the Administrative Agent to the Term Borrower;
(f) (i) any event or condition occurs that (A) results in any
Material Indebtedness becoming due prior to its scheduled maturity or (B)
enables or permits (with all applicable grace periods having expired) the
holder or holders of any Material Indebtedness or any trustee or agent on
its or their behalf to cause any Material Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof, prior
to its scheduled maturity or (ii) Holdings, any Borrower or any of the
Subsidiaries shall fail to pay the principal of any Material Indebtedness
at the stated final maturity thereof; PROVIDED that this clause (f) shall
not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such
-130-
Indebtedness if such sale or transfer is permitted hereunder and under the
documents providing for such Indebtedness;
(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, any Borrower or any of the Material
Subsidiaries, or of a substantial part of the property or assets of
Holdings, any Borrower or any Material Subsidiary, 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, any Borrower or any of the
Material Subsidiaries or for a substantial part of the property or assets
of Holdings, any Borrower or any of the Material Subsidiaries, (iii) the
winding-up or liquidation of Holdings, any Borrower or any Material
Subsidiary (except, in the case of any Material Subsidiary (other than any
Borrower), in a transaction permitted by Section 6.05), (iv) in the case of
a Person organized under the laws of Germany, any of the actions set out in
Section 21 of the German Insolvenzordnung or to institute insolvency
proceedings against any such Person (EROFFNUNG DES INSOLVENZVERFAHRENS), or
(v) in the case of a Person organized under the laws of Luxembourg, the
commencement of bankruptcy proceedings (FAILLITE) or the application to be
admitted to the regime of suspension of payments (SURSIS DE PAIEMENTS),
controlled management (GESTION CONTROLEE) or composition with its creditors
(CONCORDAT); 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, any Borrower or any Material Subsidiary 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) seek, or 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 (h) above, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Holdings, any Borrower or
any of the Material Subsidiaries or for a substantial part of the property
or assets of Holdings, any Borrower or any Material Subsidiary, (iv) file
an answer admitting the material allegations of a petition filed against it
in any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) become unable, admit in writing its inability or fail
generally to pay its debts as they become due;
(j) the failure by Holdings, the Term Borrower or any Material
Subsidiary to pay one or more final judgments (not covered by insurance)
aggregating in excess of $40.0 million, which judgments are not discharged
or effectively waived or stayed for a period of 30 consecutive days, or any
action shall be legally taken by a judgment creditor to levy upon any
material assets or properties of Holdings, the Term Borrower or any
Material Subsidiary to enforce any such judgment;
-131-
(k) (i) a Reportable Event or Reportable Events shall have
occurred with respect to any Plan or a trustee shall be appointed by a
United States district court to administer any Plan, (ii) the PBGC shall
institute proceedings (including giving notice of intent thereof) to
terminate any Plan or Plans, (iii) Holdings, the Term Borrower or any
Subsidiary or any ERISA Affiliate shall have been notified by the sponsor
of a Multiemployer Plan that it has incurred or will be assessed Withdrawal
Liability to such Multiemployer Plan and such person does not have
reasonable grounds for contesting such Withdrawal Liability or is not
contesting such Withdrawal Liability in a timely and appropriate manner,
(iv) Holdings, the Term Borrower or any Subsidiary 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, (v) Holdings, the Term Borrower or any
Subsidiary 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 or (vi) any other similar event or condition shall
occur or exist with respect to a Plan; and in each case in clauses (i)
through (vi) 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 in
writing by Holdings, any Borrower or any Material Subsidiary 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, any Borrower and the
Subsidiaries on a consolidated basis shall cease to be, or shall be
asserted in writing by the Term 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 Collateral Agreements or to file Uniform
Commercial Code 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, (iii)
the Guarantees pursuant to the Security Documents by Holdings, or the
Subsidiary Loan Parties of any of the Obligations shall cease to be in full
force and effect (other than in accordance with the terms thereof), or
shall be asserted in writing by Holdings or the Term Borrower or any
Subsidiary Loan Party not to be in effect or not to be legal, valid and
binding obligations or (iv) the Obligations of the Borrowers or the
Guarantees thereof by Holdings, and the Subsidiary Loan Parties pursuant to
the Security Documents shall cease to constitute senior indebtedness under
the subordination provisions of the Senior Subordinated B Note Documents or
the Senior Subordinated C Note Documents or the respective such
subordination provisions shall be invalidated or otherwise cease, or shall
be asserted in writing by Holdings, the Term Borrower or any Material
Subsidiary to be invalid or to cease, to be legal, valid and binding
obligations of the parties thereto, enforceable in accordance with their
terms;
then, subject to Sections 7.02 and/or 7.03, and in every such event (other than
an event with respect to a 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,
-132-
shall, by notice to the Borrowers, 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 Borrowers 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 Borrowers, anything contained herein or in any other Loan Document
to the contrary notwithstanding and (iii) demand cash collateral pursuant to
Section 2.05(j); and in any event with respect to a 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 Borrowers 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 2.05(j), without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrowers, anything contained herein or in any
other Loan Document to the contrary notwithstanding.
For the avoidance of doubt, during the Certain Funds Period (other than as
referred to in Section 4.03) no Lender shall (a) exercise any right to terminate
the obligation to make any Loan, (b) exercise any right of rescission in respect
of this Agreement or in respect of a Loan or (c) exercise any right of
acceleration, termination, cancellation or set-off in respect of any Loan (other
than set-off in respect of fees, costs and expenses as agreed in the funds flow
document).
SECTION 7.02 HOLDINGS' RIGHT TO CURE.
(a) FINANCIAL PERFORMANCE COVENANTS. Notwithstanding anything to
the contrary contained in Section 7.01, in the event that Holdings fails 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 the
Term Borrower (collectively, the "CURE RIGHT"), and upon the receipt by Term
Borrower of such cash (the "CURE AMOUNT") pursuant to the exercise by Holdings
of such Cure Right and request to the Administrative Agent to effect such
recalculation, 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 shall then be in compliance with the requirements of all Financial
Performance Covenants, Holdings 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
-133-
of the Financial Performance Covenants that had occurred shall be deemed
cured for this purposes of the Agreement.
(b) LIMITATION ON EXERCISE OF CURE RIGHT. Notwithstanding anything
herein to the contrary, (a) in each four-fiscal-quarter period there shall be at
least one fiscal quarter in which the Cure Right is not exercised, (b) in each
eight-fiscal-quarter period, there shall be a period of at least four
consecutive fiscal quarters during which the Cure Right is not exercised, (c)
the Cure Amount shall be no greater than the amount required for purposes of
complying with the Financial Performance Covenants, (d) in each 12 month period,
the maximum aggregate Cure Amount for all exercises shall not exceed EURO 200
million and (e) no Indebtedness repaid with the proceeds of Permitted Cure
Securities shall be deemed repaid for purposes of calculating the ratios
specified in Section 6.11 or 6.12 for the period during which such Permitted
Cure Securities were issued.
SECTION 7.03 CLEAN-UP PERIOD. Notwithstanding anything to the
contrary contained in Section 7.01, during the Clean-up Period, if any matter,
circumstance or event exists or has occurred that would otherwise constitute a
breach of any representation and warranty, or a covenant, contained in any Loan
Document or result in a Default or Event of Default, such matter, circumstance
or event will not constitute a Default or Event of Default (other than any
matter, circumstance or event that (x) would have a Material Adverse Effect, (y)
has been procured by Holdings, the Term Borrower, Midco, LP GmbH or Bidco or (z)
has not been remedied prior to the expiration of the Clean-up Period), PROVIDED
that (i) such matter, circumstance or event does not constitute (x) a Major
Default or (y) an Event of Default incapable of being cured and (ii) reasonable
steps are being taken to cure such matter, circumstance or event.
ARTICLE VIII
THE AGENTS
SECTION 8.01 APPOINTMENT. (a) In order to expedite the transactions
contemplated by this Agreement, DBNY is hereby appointed to act as
Administrative Agent (with each reference in this Article to Administrative
Agent to include DBNY in its capacity as Collateral Agent). Each of the Lenders
and each assignee of any such Lender hereby irrevocably authorizes the
Administrative Agent to take such actions on behalf of such Lender or assignee
and to exercise such powers as are specifically delegated to the Administrative
Agent 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
Issuing Bank, without hereby limiting any implied authority, (a) to receive on
behalf of the Lenders and such Issuing 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 Issuing Bank hereunder, and promptly
to distribute to each Lender or such Issuing Bank its proper share of each
payment so received; (b) to give notice on behalf of each of the Lenders of any
Event of Default specified in this Agreement of which the Administrative Agent
has actual knowledge acquired in connection with the performance of its duties
as Administrative Agent hereunder; and (c) to distribute to each Lender copies
of all notices, financial statements and other materials delivered by any
Borrower pursuant to this Agreement
-134-
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 Administrative
Agent. No Documentation Agent or Senior Managing Agent shall have any duties or
responsibilities under this Agreement.
(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 Borrowers 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 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 any Borrower or any other Loan Party or any other party hereto
on account of the failure, delay in performance or breach by, or as a result of
information provided by, any Lender or Issuing Bank of any of its obligations
hereunder or to any Lender or Issuing Bank on account of the failure of or delay
in performance or breach by any other Lender or Issuing Bank or any 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 Agent 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 no
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, no
Agent shall 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 any Agent. Each
Lender recognizes and agrees that the Global Coordinators and the Joint Lead
Arrangers shall have no duties or responsibilities under this Agreement or any
other Loan
-135-
Document, or any fiduciary relationship with any Lender, and shall have no
functions, responsibilities, duties, obligations or liabilities for acting as
the Global Coordinator or as the Joint Lead Arrangers hereunder.
SECTION 8.03 RESIGNATION BY THE AGENTS. Subject to the appointment
and acceptance of a successor Administrative Agent or Deposit Bank, as the case
may be, as provided below, each of the Administrative Agent and the Deposit Bank
may resign at any time by notifying the Lenders and the Term Borrower. Upon any
such resignation, the Required Lenders shall have the right to appoint a
successor with the consent of the Term Borrower (not to be unreasonably withheld
or delayed). If no successor shall have been so appointed by the Required
Lenders and approved by the Term Borrower and shall have accepted such
appointment within 45 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders with the consent of the Term Borrower (not to be unreasonably withheld
or delayed), appoint a successor Administrative Agent which shall be a bank with
an office in New York, New York and an office in London, England (or a bank
having an Affiliate with such an office) having a combined capital and surplus
having a Dollar Equivalent that is not less than $500.0 million or an Affiliate
of any such bank. Upon the acceptance of any appointment as Administrative Agent
or Deposit Bank hereunder by a successor bank, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent or Deposit Bank, as the case may be, and the
retiring Administrative Agent or Deposit Bank, as the case may be, shall be
discharged from its duties and obligations hereunder. After the resignation by
the Administrative Agent or by the Deposit Bank 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 acting as
Administrative Agent or Deposit Bank, as the case may be.
SECTION 8.04 THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
With respect to the Loans made by it hereunder, the Administrative Agent in its
individual capacity and not as Administrative Agent shall have the same rights
and powers as any other Lender and may exercise the same as though it were not
the Administrative Agent, and the Administrative Agent and its Affiliates may
accept deposits from, lend money to and generally engage in any kind of business
with Holdings, any Borrower or any of the Subsidiaries or other Affiliates
thereof as if it were not the Administrative Agent.
SECTION 8.05 INDEMNIFICATION. Each Lender agrees (a) to reimburse
each Agent, 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 such Agent, 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 Term 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
-136-
under this Agreement or any other Loan Document, to the extent the same shall
not have been reimbursed by the Term 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 any Agent and any 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 any
Agent, 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.
SECTION 8.07 DESIGNATION OF AFFILIATES FOR LOANS DENOMINATED IN EUROS
.. The Administrative Agent shall be permitted from time to time to
designate one of its Affiliates to perform the duties to be performed by the
Administrative Agent hereunder with respect to Loans, Borrowings and Letters of
Credit denominated in Euros. The provisions of this Article VIII shall apply to
any such Affiliate, MUTATIS MUTANDIS.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 NOTICES. (a) 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:
(i) if to any Loan Party, to it, x/x Xxxxxx, 00, xxx Xxxxxx
Xxxxxxx, L2453 Luxembourg, with a copy to Blackstone Capital Partners
Cayman IV L.P. 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000;
(ii) if to the Administrative Agent or the Collateral Agent, to
Deutsche Bank AG, New York Branch, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, attention: Xxxxx Xxxxxx (telecopy: (000) 000-0000) (e-mail:
xxxxx.xxxxxx@xx.xxx), with a copy to White & Case LLP, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: Xxxx Xxxxx, Esq. (telecopy:
(000) 000-0000);
(iii) if to an Issuing Bank, to it at the address or telecopy number
set forth separately in writing; and
(iv) if such notice relates to a Revolving Facility Borrowing
denominated in Euros, to the Administrative Agent.
(b) Notices and other communications to the Lenders hereunder may
be delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; PROVIDED that the foregoing shall not
apply to notices pursuant to
-137-
Article II unless otherwise agreed by the Administrative Agent and the
applicable Lender. Each of the Administrative Agent, the Collateral Agent and
the Term Borrower (on behalf of itself and the Foreign Subsidiary Borrowers)
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it;
PROVIDED, FURTHER, that approval of such procedures may be limited to particular
notices or communications.
(c) 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,
sent by telecopy or (to the extent permitted by paragraph (b) above) electronic
means 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.
(d) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto.
SECTION 9.02 SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by the Loan Parties 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 and each
Issuing Bank and shall survive the making by the Lenders of the Loans, the
execution and delivery of the Loan Documents and the issuance of the Letters of
Credit, regardless of any investigation made by such persons 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 2.15, 2.16, 2.17 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 Term Borrower and the
Administrative Agent 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 Borrowers, each Issuing Bank, the Administrative Agent,
the Deposit Bank and each Lender and their respective permitted successors and
assigns.
SECTION 9.04 SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of any Issuing Bank that issues any Letter of Credit), except that (i)
other than pursuant to a merger permitted by Section 6.05(b) or 6.05(i), no
Borrower may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by a
-138-
Borrower without such consent shall be null and void) and (ii) no Lender may
assign or otherwise transfer its rights or obligations hereunder except in
accordance with this Section. Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any person (other than the parties hereto,
their respective successors and assigns permitted hereby (including any
Affiliate of any Issuing Bank that issues any Letter of Credit), Participants
(to the extent provided in paragraph (c) of this Section) and, to the extent
expressly contemplated hereby, the Related Parties of each of the Agents, each
Issuing Bank and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment, the Loans and/or Credit-Linked Deposits at the time owing to it)
with the prior written consent (such consent not to be unreasonably withheld)
of:
(A) the Term Borrower; PROVIDED that no consent of the Term
Borrower shall be required for an assignment to a Lender or an Affiliate of
a Lender or an Approved Fund or, if an Event of Default has occurred and is
continuing or (except for any assignment by an Initial Lender to any
transferee of more than 50% of its Commitments as of the date of the Fee
Letter) during the period of primary syndication of the Facilities (as
determined pursuant to the Fee Letter), any other assignee (PROVIDED that
any liability of the Borrowers to an assignee that is an Approved Fund or
Affiliate of the assigning Lender under Section 2.15, 2.16, 2.17 or 2.21
shall be limited to the amount, if any, that would have been payable
hereunder by such Borrower in the absence of such assignment); and
(B) the Administrative Agent; PROVIDED that no consent of the
Administrative Agent shall be required for an assignment of (i) a Revolving
Facility Commitment to an assignee that is a Lender with a Revolving
Facility Commitment, immediately prior to giving effect to such assignment,
or (ii) a Credit-Linked Commitment or a Term Loan to a Lender, an Affiliate
of a Lender or Approved Fund immediately prior to giving effect to such
assignment.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender, an Affiliate
of a Lender or an Approved Fund or an assignment of the entire remaining
amount of the assigning Lender's Commitment, the amount of the commitment
of the assigning Lender subject to each such assignment (determined as of
the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than (x) $5.0
million, in the case of Revolving Facility Commitments and Revolving
Facility Loans, (y) $5.0 million in the case of Credit-Linked Commitments
and Credit-Linked Deposits and (z) $1.0 million, in the case of Term Loans,
unless each of the Term Borrower and the Administrative Agent otherwise
consent; PROVIDED that no such consent of the Term Borrower shall be
required if an Event of Default under paragraph (b), (c), (h) or (i) of
Section 7.01 has occurred and is continuing;
-139-
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement;
(C) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500; PROVIDED that no such recordation
fee shall be due in connection with an assignment to an existing Lender or
Affiliate of a Lender or an assignment by the Administrative Agent; and
(D) no assignment of Revolving Facility Loans or Revolving
Facility Commitments shall be permitted to be made to an assignee that
cannot make Revolving Facility Loans in Dollars and Euros.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Acceptance the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender hereunder shall, to the extent of the interest assigned
by such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.15, 2.16, 2.17 and 9.05). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 9.04 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent
of the Term Borrower, shall maintain at one of its offices a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitment of, and principal
amount of the Loans and L/C Disbursements owing to, each Lender pursuant to the
terms hereof from time to time (the "REGISTER"). The entries in the Register
shall be conclusive, and the Term Borrower, the Agents, each Issuing Bank and
the Lenders may treat each person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Term Borrower, any Issuing Bank and any Lender,
at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent
acting for itself and, in any situation wherein the consent of the Term Borrower
is not required, the Term Borrower shall accept such Assignment and Acceptance
and record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.
-140-
(c) (i) Any Lender may, without the consent of the Term Borrower,
the Administrative Agent, any Issuing Bank or any Swingline Lender, sell
participations to one or more banks or other entities (a "LOAN PARTICIPANT") in
all or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided that (A) such Lender's obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (C) the Borrowers, the
Agents, each Issuing Bank and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument (oral or written)
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and the other Loan
Documents and to approve any amendment, modification or waiver of any provision
of this Agreement and the other Loan Documents; PROVIDED that (x) such agreement
or instrument may provide that such Lender will not, without the consent of the
Loan Participant, agree to any amendment, modification or waiver described in
Section 9.04(a)(i) or clauses (i), (ii), (iii), (iv), (v) or (vi) of the first
proviso to Section 9.08(b) that affects such Loan Participant and (y) no other
agreement (oral or written) with respect to such participation may exist between
such Lender and such Loan Participant. Subject to paragraph (c)(ii) of this
Section, each of the Borrowers agrees that each Loan Participant shall be
entitled to the benefits of Sections 2.15, 2.16 and 2.17 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by law, each Loan
Participant also shall be entitled to the benefits of Section 9.06 as though it
were a Lender, PROVIDED such Loan Participant agrees to be subject to Section
2.18(c) as though it were a Lender.
(ii) A Loan Participant shall not be entitled to receive any
greater payment under Section 2.15, 2.16 or 2.17 than the applicable Lender
would have been entitled to receive with respect to the participation sold to
such Loan Participant, unless the sale of the participation to such Loan
Participant is made with the Term Borrower's prior written consent. A Loan
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.17 to the extent such Loan Participant
fails to comply with Section 2.17(e) as though it were a Lender.
(d) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; PROVIDED that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 9.05 EXPENSES; INDEMNITY. (a) The Term Borrower agrees to pay
all reasonable out-of-pocket expenses (including Other Taxes) incurred by the
Administrative Agent in connection with the preparation of this Agreement and
the other Loan Documents or the administration of this Agreement and by the
Initial Lenders in connection with the syndication of the Commitments (including
expenses incurred prior to the Closing Date in connection with due diligence and
the reasonable fees, disbursements and the charges for no more than one counsel
in each jurisdiction where Collateral is located) or in connection with any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the Transactions
-141-
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, 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
Administration Agent and the Joint Lead Arrangers and Xxxxx & XxXxxxxx, special
German counsel to the Administrative Agent and the Joint Lead Arrangers, 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, the Joint Lead Arrangers, any Issuing Bank or
all Lenders (but no more than one such counsel for all Lenders).
(b) The Term Borrower agrees to indemnify the Agents, the Joint
Lead Arrangers, each Issuing Bank, each Lender and each of their respective
directors, trustees, officers, employees 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 Transactions and the other transactions contemplated hereby,
(ii) the use of the proceeds of the Loans or the use of any Letter of Credit or
(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 primarily from
the gross negligence or willful misconduct of such Indemnitee (treating, for
this purpose only, any Agent, any Joint Lead Arranger, any Issuing Bank, any
Lender and any of their respective Related Parties as a single Indemnitee).
Subject to and without limiting the generality of the foregoing sentence, the
Term 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 Term Borrower or any of their Subsidiaries, or (B) any
actual or alleged presence, Release or threatened Release of Hazardous Materials
at, under, on or from any Mortgaged Property or any property owned, leased or
operated by any predecessor of Holdings, the Term 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 Related Parties. 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
Issuing Bank or any Lender. All amounts due under this Section 9.05 shall be
payable on written demand therefor accompanied by reasonable documentation with
respect to any reimbursement, indemnification or other amount requested.
-142-
(c) Unless an Event of Default shall have occurred and be
continuing, the Term 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 Term 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
Term 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 Term Borrower shall bear the reasonable fees,
costs and expenses of such separate counsel, if (i) the use of counsel chosen by
the Term 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 Term 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
Term Borrower (in which case the Term Borrower shall not have the right to
assume the defense or such action on behalf of such Indemnitee); (iii) the Term
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 Term Borrower shall authorize in writing
such Indemnitee to employ separate counsel at the Term Borrower's expense. The
Term 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 Term 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.
(d) Except as expressly provided in Section 9.05(a) with respect
to Other Taxes, which shall not be duplicative with any amounts paid pursuant to
Section 2.17, this Section 9.05 shall not apply to Taxes.
SECTION 9.06 RIGHT OF SET-OFF. If an Event of Default shall have
occurred and be continuing, each Lender and each Issuing 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 Issuing Bank to or for the credit or the
account of Holdings, the Term Borrower or any Subsidiary against any of and all
the obligations of Holdings or the Term Borrower now or hereafter existing under
this Agreement or any other Loan Document held by such Lender or such Issuing
Bank, irrespective of whether or not such Lender or such Issuing Bank shall have
made any demand under this Agreement or such other Loan Document and although
the obligations may be unmatured. The rights of each Lender and each Issuing
Bank under this Section 9.06 are in addition to other rights and remedies
(including other rights of set-off) that such Lender or such Issuing Bank may
have.
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.
SECTION 9.08 WAIVERS; AMENDMENT. (a) No failure or delay of the
Administrative Agent, any Issuing Bank or any Lender in exercising any right or
power
-143-
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 Administrative Agent, each
Issuing 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, any Borrower or any other Loan
Party 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, any Borrower or any other Loan Party in any case
shall entitle such person to any other or further notice or demand in similar or
other circumstances.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except (x) in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by the Term Borrower and the Required Lenders and (y) in the case
of any other Loan Document, pursuant to an agreement or agreements as provided
for therein; PROVIDED, HOWEVER, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the
final maturity of, or decrease the rate of interest on, any Loan or any L/C
Disbursement, without the prior written consent of each Lender directly
affected thereby; PROVIDED that any amendment to the financial covenant
definitions in this Agreement shall not constitute a reduction in the rate
of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease
the Commitment Fees or L/C Participation Fees or other fees of any Lender
without the prior written 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 Commitments of any Lender),
(iii) extend or waive any Installment Date or extend any date on
which payment of interest on any Loan or any L/C Disbursement is due,
without the prior written consent of each Lender adversely affected
thereby,
(iv) amend or modify the provisions of Section 2.18(c) in a manner
that would by its terms alter the PRO RATA sharing of payments required
thereby, without the prior written consent of each Lender adversely
affected thereby,
(v) amend or modify the provisions of this Section or the
definition of the terms "Required Lenders," "Majority Lenders" or any other
provision hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any determination or
grant any consent hereunder, without the prior written consent of each
Lender adversely affected thereby (it being understood that, with the
consent of the Required Lenders, additional extensions of credit pursuant
to this
-144-
Agreement may be included in the determination of the Required Lenders on
substantially the same basis as the Loans and Commitments are included on
the Closing Date),
(vi) release all or substantially all the Collateral or release
Holdings, the Term Borrower, CAC or all or substantially all of the other
Subsidiary Loan Parties from its Guarantee under the Holdings Guarantee and
Pledge Agreement or the U.S. Collateral Agreement, as applicable, unless,
in the case of a Subsidiary Loan Party, all or substantially all the Equity
Interests of such Subsidiary Loan Party is sold or otherwise disposed of in
a transaction permitted by this Agreement, without the prior written
consent of each Lender adversely affected thereby, or
(vii) effect any waiver, amendment or modification that by its terms
directly adversely affects the rights in respect of payments or collateral
of Lenders participating in any Facility differently from those of Lenders
participating in other Facilities, without the consent of the Majority
Lenders participating in the adversely affected Facility (it being agreed
that the Required Lenders may waive, in whole or in part, any prepayment or
Commitment reduction required by Section 2.11 so long as the application of
any prepayment or Commitment reduction still required to be made is not
changed);
PROVIDED, FURTHER, that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, the Deposit Bank or an
Issuing Bank hereunder without the prior written consent of the Administrative
Agent, the Deposit Bank or such Issuing Bank acting as such at the effective
date of such agreement, as applicable. Each Lender shall be bound by any waiver,
amendment or modification authorized by this Section 9.08 and any consent by any
Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of the Global Coordinator, any Joint Lead
Arranger, the Deposit Bank or any Lender, the Loan Parties and the
Administrative Agent and/or Collateral Agent may (in their respective sole
discretion, or shall, to the extent required by any Loan Document) enter into
any amendment, modification or waiver of any Loan Document, or enter into any
new agreement or instrument, to effect the granting, perfection, protection,
expansion or enhancement of any security interest in any Collateral or
additional property to become Collateral for the benefit of the Secured Parties,
or as required by local law to give effect to, or protect any security interest
for the benefit of the Secured Parties, in any property or so that the security
interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended
(or amended and restated) with the written consent of the Required Lenders, the
Administrative Agent, Holdings and the Borrowers (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 the Revolving Facility Loans
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.
(e) In addition, notwithstanding the foregoing, this Agreement may
be amended with the written consent of the Administrative Agent, Holdings, the
Borrowers and the
-145-
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 "B" term loan tranche hereunder which shall be Loans
hereunder ("REPLACEMENT TERM LOANS"); PROVIDED that (a) the aggregate principal
amount of such Replacement 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 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 Issuing 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 Issuing Bank, shall be limited to the Maximum Rate, PROVIDED that such
excess amount shall be paid to such Lender or such Issuing 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
or their Affiliates with respect to the subject matter hereof is superseded by
this Agreement and the other Loan Documents. Notwithstanding the foregoing, the
Fee Letter shall survive the execution and delivery of this Agreement and remain
in full force and effect. 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
-146-
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.
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. Delivery of an executed counterpart to
this Agreement by facsimile transmission shall be as effective as delivery of a
manually signed original.
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 each 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 Issuing Bank may otherwise have to bring any action
or proceeding relating to this Agreement or the other Loan Documents against
Holdings, any Borrower or any Loan Party or their properties in the courts of
any jurisdiction.
(b) Each of Holdings and each 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 Loan Party party hereto irrevocably and unconditionally
appoints BCP Crystal US Holdings Corp. with an office on the date hereof at 000
Xxxx Xxxxxx, 00xx Xxxxx,
-000-
Xxx Xxxx, XX 00000 and its successors hereunder (the "PROCESS AGENT"), as its
agent to receive on behalf of each such Loan Party and its property all writs,
claims, process, and summonses in any action or proceeding brought against it in
the State of New York. Such service may be made by mailing or delivering a copy
of such process to the respective Loan Party in care of the Process Agent at the
address specified above for the Process Agent, and such Loan Party irrevocably
authorizes and directs the Process Agent to accept such service on its behalf.
Failure by the Process Agent to give notice to the respective Loan Party, or
failure of the respective Loan Party, to receive notice of such service of
process shall not impair or affect the validity of such service on the Process
Agent or any such Loan Party, or of any judgment based thereon. Each Loan Party
hereto covenants and agrees that it shall take any and all reasonable action,
including the execution and filing of any and all documents, that may be
necessary to continue the designation of the Process Agent above in full force
and effect, and to cause the Process Agent to act as such. Each Loan Party
hereto further covenants and agrees to maintain at all times an agent with
offices in New York City to act as its Process Agent. Nothing herein shall in
any way be deemed to limit the ability to serve any such writs, process or
summonses in any other manner permitted by applicable law.
SECTION 9.16 CONFIDENTIALITY. (a) Each of the Lenders, the Deposit
Bank, each Issuing Bank and the Administrative Agent agrees that it shall
maintain in confidence any information relating to Holdings, the Term Borrower
and the other Loan Parties furnished to it by or on behalf of Holdings, the Term
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 Issuing Bank,
the Deposit Bank or the Administrative Agent without violating this Section 9.16
or (c) was available to such Lender, such Issuing Bank, the Deposit Bank or the
Administrative Agent from a third party having, to such person's knowledge, no
obligations of confidentiality to Holdings, the Term Borrower or any other Loan
Party) and shall not reveal the same other than 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), except: (A) to the extent necessary to comply with law
or any legal process or the requirements of any Governmental Authority, the
National Association of Insurance Commissioners 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 or the National Association of Insurance
Commissioners, (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, (E) to any prospective assignee of, or
prospective Participant in, any of its rights under this Agreement (so long as
such person shall have been instructed to keep the same confidential in
accordance with this Section 9.16) and (F) 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).
(b) Neither the Administrative Agent, the Deposit Bank, any
Lender, any of their respective affiliates nor any Loan Party provide
accounting, tax or legal advice. Notwithstanding anything provided herein, and
any express or implied claims of exclusivity or
-148-
proprietary rights, each party hereto hereby agrees and acknowledges that each
such party (and each of their employees, representatives or other agents) are
authorized to disclose to any and all Persons, beginning immediately upon
commencement of their discussions and without limitation of any kind, the tax
treatment and tax structure of the Transaction, and all materials of any kind
(including opinions or other tax analyses) that are provided by any such party
to any other party relating to such tax treatment and tax structure, except to
the extent that such disclosure is subject to restrictions reasonably necessary
to comply with securities laws. In this regard, each party hereto acknowledges
and agrees that disclosure of the tax treatment and tax structure of the
Transaction has not been and is not limited in any manner by an express or
implied understanding or agreement (whether oral or written, and whether or not
such understanding or agreement is legally binding), except to the extent that
such disclosure is subject to restrictions reasonably necessary to comply with
securities laws. For purposes of this authorization, "tax treatment" means the
purported or claimed U.S. federal income tax treatment of the Transaction, and
"tax structure" means any fact that may be relevant to understanding the
purported or claimed U.S. federal income tax treatment of the Transaction. This
paragraph is intended to reflect the understanding of the parties hereto that
the Transaction has not been offered under "conditions of confidentiality" as
that phrase is used in Treasury Regulation Sections 1.6011-4(b)(3)(i) and 30
1.6111-2(c)(1), and shall be interpreted in a manner consistent therewith.
SECTION 9.17 CONVERSION OF CURRENCIES. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto (including
any Foreign Subsidiary Borrower) agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures in the relevant jurisdiction the first
currency could be purchased with such other currency on the Business Day
immediately preceding the day on which final judgment is given.
(b) The obligations of each Borrower in respect of any sum due to
any party hereto or any holder of the obligations owing hereunder (the
"APPLICABLE CREDITOR") shall, notwithstanding any judgment in a currency (the
"JUDGMENT CURRENCY") other than the currency in which such sum is stated to be
due hereunder (the "AGREEMENT CURRENCY"), be discharged only to the extent that,
on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrowers
contained in this Section 9.17 shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.
SECTION 9.18 RELEASE OF LIENS AND GUARANTEES. In the event that any
Loan Party conveys, sells, leases, assigns, transfers or otherwise disposes of
all or any portion of any of its assets (including the Equity Interests of any
Subsidiary Loan Party (other than a Borrower)) 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
-149-
such action and execute any such documents as may be reasonably requested by
Holdings or the Term Borrower and at the Term Borrower's expense to release any
Liens created by any Loan Document in respect of such assets or Equity
Interests, and, in the case of a disposition of the Equity Interests of any
Subsidiary Loan Party that is not a Borrower in a transaction permitted by
Section 6.05 and as a result of which such Subsidiary Loan Party would cease to
be a Subsidiary, terminate such Subsidiary Loan Party's obligations under its
Guarantee. The Administrative Agent and the Collateral Agent agree to take such
actions as are reasonably requested by the Term Borrower and at the Term
Borrower's expense to terminate the Liens and security interests created by the
Parent Guarantee and Pledge Agreement and the CAC Loan Collateral Agreement, in
each case to the extent terminating by their terms at such time, on the
Restructuring Date. In addition, the Administrative Agent and the Collateral
Agent agree to take such actions as are reasonably requested by Holdings or the
Term Borrower and at the Term 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, asset or subsidiary of Holdings shall no longer be
deemed to be made once such Equity Interests or asset is so conveyed, sold,
leased, assigned, transferred or disposed of.
SECTION 9.19 PARALLEL DEBT (a) Each of the parties hereto agrees, and
each Foreign Revolving Borrower acknowledges by way of an abstract
acknowledgement of debt, that each and every obligation of each Foreign
Revolving Borrower (and any of its successors pursuant to this Agreement) under
this Agreement and the other Loan Documents shall also be owing in full to the
Collateral Agent (and each of its successors under this Agreement), and that
accordingly the Collateral Agent will have its own independent right to demand
performance by each such Foreign Revolving Borrower of those obligations. The
Collateral Agent agrees with each Foreign Revolving Borrower that in case of any
discharge of any such obligation owing to the Collateral Agent or any Lender, it
will, to the same extent, not make a claim against the relevant Foreign
Revolving Borrower under the aforesaid acknowledgement at any time, provided
that any such claims can be made against any such Foreign Revolving Borrower if
such discharge is made by virtue of any set off, counterclaim or similar defense
invoked by any such Foreign Revolving Borrower vis-a-vis the Collateral Agent.
(b) Without limiting or affecting the Collateral Agent's rights
against any Foreign Revolving Borrower (whether under this paragraph or under
any other provision of the Loan Documents), the Collateral Agent agrees with
each other Lender that, except as set out in the next sentence, it will not
exercise its rights under the Acknowledgement except with the consent of the
relevant Lender. However, for the avoidance of doubt, nothing in the previous
sentence shall in any way limit the Collateral Agent's right to act in the
protection or preservation of rights under or to enforce any Loan Document as
contemplated by this Agreement and/or the relevant Loan Document (or to do any
act reasonably incidental to the foregoing).
-150-
ARTICLE X
COLLECTION ALLOCATION MECHANISM
SECTION 10.01 IMPLEMENTATION OF CAM. (a) On the CAM Exchange Date, (i)
the Commitments shall automatically and without further act be terminated as
provided in Section 7.01, (ii) each Revolving Facility Lender shall immediately
be deemed to have acquired (and shall promptly make payment therefor to the
Administrative Agent in accordance with Section 2.04(c)) participations in the
Swingline Euro Loans (other than any Swingline Euro Loan in respect of which
Revolving Facility Lenders have funded their purchase of participations pursuant
to Section 2.04(c)) in an amount equal to such Lender's ratable share (based on
the respective Revolving Facility Commitments of the Revolving Facility Lenders
immediately prior to the CAM Exchange Date) of each Swingline Euro Loan
outstanding on such date, (iii) each Revolving Facility Lender shall immediately
be deemed to have acquired (and shall promptly make payment therefor to the
Administrative Agent in accordance with Section 2.04(c)) participations in the
Swingline Dollar Loans (other than any Swingline Dollar Loan in respect of which
the Revolving Facility Lenders have funded their purchase of participations
pursuant to Section 2.04(c)) in an amount equal to such Lender's Revolving
Facility Percentage of each Swingline Dollar Loan outstanding on such date, (iv)
simultaneously with the automatic conversions pursuant to clause (v) below, the
Lenders shall automatically and without further act (and without regard to the
provisions of Section 9.04) be deemed to have exchanged interests in the Loans
(other than the Swingline Loans), Swingline Loans and undrawn Letters of Credit,
such that in lieu of the interest of each Lender in each Loan and Letter of
Credit in which it shall participate as of such date (including such Lender's
interest in the Obligations of each Loan Party in respect of each such Loan and
undrawn Letter of Credit), such Lender shall hold an interest in every one of
the Loans (other than the Swingline Loans) and a participation in every one of
the Swingline Loans and undrawn Letters of Credit (including the Obligations of
each Loan Party in respect of each such Loan and each Reserve Account
established pursuant to Section 10.02 below), whether or not such Lender shall
previously have participated therein, equal to such Lender's CAM Percentage
thereof and (v) simultaneously with the deemed exchange of interests pursuant to
clause (iv) above, the interests in the Loans to be received in such deemed
exchange shall, automatically and with no further action required, be converted
into the Dollar Equivalent, determined using the Exchange Rate calculated as of
such date, of such amount and on and after such date all amounts accruing and
owed to the Lenders in respect of such Obligations shall accrue and be payable
in Dollars at the rate otherwise applicable hereunder. Each Lender and each Loan
Party hereby consents and agrees to the CAM Exchange, and each Lender agrees
that the CAM Exchange shall be binding upon its successors and assigns and any
person that acquires a participation in its interests in any Loan. Each Loan
Party agrees from time to time to execute and deliver to the Administrative
Agent all such promissory notes and other instruments and documents as the
Administrative Agent shall reasonably request to evidence and confirm the
respective interests of the Lenders after giving effect to the CAM Exchange, and
each Lender agrees to surrender any promissory notes originally received by it
in connection with its Loans hereunder to the Administrative Agent against
delivery of any promissory notes evidencing its interests in the Loans so
executed and delivered; PROVIDED, HOWEVER, that the failure of any Loan Party to
execute or deliver or of any Lender to accept any such promissory note,
instrument or document shall not affect the validity or effectiveness of the CAM
Exchange.
-151-
(b) As a result of the CAM Exchange, upon and after the CAM
Exchange Date, each payment received by the Administrative Agent or the
Collateral Agent pursuant to any Loan Document in respect of the Obligations,
and each distribution made by the Collateral Agent pursuant to any Security
Document in respect of the Obligations, shall be distributed to the Lenders PRO
RATA in accordance with their respective CAM Percentages. Any direct payment
received by a Lender upon or after the CAM Exchange Date, including by way of
set-off, in respect of an Obligation shall be paid over to the Administrative
Agent for distribution to the Lenders in accordance herewith.
SECTION 10.02 LETTERS OF CREDIT. (a) In the event that on the CAM
Exchange Date any RF Letter of Credit shall be outstanding and undrawn in whole
or in part, each Revolving Facility Lender shall promptly pay over to the
Administrative Agent, in immediately available funds, an amount in Dollars equal
to such Lender's Revolving Facility Percentage of such undrawn face amount,
together with interest thereon from the CAM Exchange Date to the date on which
such amount shall be paid to the Administrative Agent at the rate that would be
applicable at the time to an ABR Revolving Loan in a principal amount equal to
such undrawn face amount or unreimbursed drawing, as applicable. The
Administrative Agent shall establish a separate account (each, an "RF RESERVE
ACCOUNT") or accounts for each Lender for the amounts received with respect to
each such RF Letter of Credit pursuant to the preceding sentence. On the CAM
Exchange Date, the Administrative Agent shall request the Deposit Bank to
withdraw all amounts remaining in the Credit-Linked Deposit Account (after
giving effect to withdrawals therefrom made pursuant to Section 2.08(d)) less
the aggregate amount (if any) equal to all unreimbursed L/C Disbursements made
in respect of CL Letters of Credit not yet founded by application of
Credit-Linked Deposits as contemplated by Section 2.05(e) and deposit same in a
new separate account maintained with the Administrative Agent (each a "CL
RESERVE ACCOUNT" and together with the RF Reserve Account, the "RESERVE
ACCOUNTS") or accounts for such Lender. The Administrative Agent shall deposit
in each Lender's RF Reserve Account or CL Reserve Account, as the case may be,
such Lender's CAM Percentage of the amounts received from the Revolving Facility
Lenders or the Credit-Linked Deposit Account, as the case may be, as provided
above. The Administrative Agent shall have sole dominion and control over each
Reserve Account, and the amounts deposited in each Reserve Account shall be held
in such Reserve Account until withdrawn as provided in paragraph (b), (c), (d)
or (e) below. The Administrative Agent shall maintain records enabling it to
determine the amounts paid over to it and deposited in the Reserve Accounts in
respect of each Letter of Credit and the amounts on deposit in respect of each
Letter of Credit attributable to each Lender's CAM Percentage. The amounts held
in each Lender's RF Reserve Account or CL Reserve Account, as the case may be,
shall be held as a reserve against the Revolving L/C Exposures or CL L/C
Exposures, as the case may be, shall be the property of such Lender, shall not
constitute Loans to or give rise to any claim of or against any Loan Party and
shall not give rise to any obligation on the part of any Borrower to pay
interest to such Lender, it being agreed that the reimbursement obligations in
respect of Letters of Credit shall arise only at such times as drawings are made
thereunder, as provided in Section 2.05.
(b) In the event that after the CAM Exchange Date any drawing
shall be made in respect of a Letter of Credit, the Administrative Agent shall,
at the request of the applicable Issuing Bank withdraw from the RF Reserve
Account or CL Reserve Account, as applicable, of each Lender any amounts, up to
the amount of such Lender's CAM Percentage of such drawing
-152-
or payment, deposited in respect of such Letter of Credit and remaining on
deposit and deliver such amounts, to such Issuing Bank in satisfaction of the
reimbursement obligations of the respective Lenders under Section 2.05(d) (but
not of the Applicant Party under Section 2.05(e)). In the event that any
Revolving Facility Lender shall default on its obligation to pay over any amount
to the Administrative Agent as provided in this Section 10.02, the applicable
Issuing Bank shall have a claim against such Revolving Facility Lender to the
same extent as if such Lender had defaulted on its obligations under Section
2.05(d), but shall have no claim against any other Lender in respect of such
defaulted amount, notwithstanding the exchange of interests in the applicable
Borrower's reimbursement obligations pursuant to Section 10.01. Each other
Lender shall have a claim against such defaulting Revolving Facility Lender for
any damages sustained by it as a result of such default, including, in the event
that such RF Letter of Credit shall expire undrawn, its CAM Percentage of the
defaulted amount.
(c) In the event that after the CAM Exchange Date any Letter of
Credit shall expire undrawn, the Administrative Agent shall withdraw from the RF
Reserve Account or CL Reserve Account, as applicable, of each Lender the amount
remaining on deposit therein in respect of such Letter of Credit and distribute
such amount to such Lender.
(d) With the prior written approval of the Administrative Agent
and the respective Issuing Bank (not to be unreasonably withheld), any Lender
may withdraw the amount held in its RF Reserve Account or CL Reserve Account in
respect of the undrawn amount of any Letter of Credit. Any Lender making such a
withdrawal shall be unconditionally obligated, in the event there shall
subsequently be a drawing under such Letter of Credit to pay over to the
Administrative Agent, for the account of the Issuing Bank on demand, its CAM
Percentage of such drawing or payment.
(e) Pending the withdrawal by any Lender of any amounts from
either of its Reserve Accounts as contemplated by the above paragraphs, the
Administrative Agent will, at the direction of such Lender and subject to such
rules as the Administrative Agent may prescribe for the avoidance of
inconvenience, invest such amounts in Permitted Investments. Each Lender that
has not withdrawn all of the amounts in its Reserve Accounts as provided in
paragraph (d) above shall have the right, at intervals reasonably specified by
the Administrative Agent, to withdraw the earnings on investments so made by the
Administrative Agent with amounts remaining in its Reserve Accounts and to
retain such earnings for its own account.
[Signature Pages Follow]
-153-
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 written above.
BCP CRYSTAL HOLDINGS LTD. 2
By: /s/ Xxxxx Xxxxxxxxx
----------------------------------------------
Title: Director
BCP CAYLUX HOLDINGS LUXEMBOURG
S.C.A.
By its Manager, BCP CAYLUX HOLDINGS LTD. 1
By: /s/ Xxxxxx Xxxxx
----------------------------------------------
Title: Director
CELANESE AMERICAS CORPORATION
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------
Title: Vice President- Law, Principal Executive
Officer & Secretary
By: /s/ Xxxxxxx X. Xxxx
----------------------------------------------
Title: Vice President-Finance, Principal
Financial Officer & Treasurer
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent and as Lender
By: /s/ Xxxxx Xxxxxx
----------------------------------------------
Title: Director
By: /s/ Xxxxxxx Xxxxx
----------------------------------------------
Title: Director
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Global Coordinator and as Lender
By: /s/ Xxxx Xxxxxxxxx
----------------------------------------------
Title: Vice President
DEUTSCHE BANK AG, CAYMAN ISLANDS
BRANCH, solely as Deposit Bank
By: /s/ Xxxxx Xxxxxx
----------------------------------------------
Title: Director
By: /s/ Xxxxxxx Xxxxx
----------------------------------------------
Title: Director
ABN AMRO BANK N. V., as Documentation
Agent and Lender
By: /s/ Xxxxxxxxx X. Xxxxx
----------------------------------------------
Title: Director
By: /s/ Xxxx X. Xxxxxx
----------------------------------------------
Title: Assistant Vice President
BANK OF AMERICA, N.A., as Documentation
Agent and Lender
By: /s/ Xxxx X. Xxxxx
----------------------------------------------
Title: Managing Director
THE BANK OF NOVA SCOTIA
By: /s/ Xxxx Xxxxxxx
----------------------------------------------
Title: Managing Director
BAYERISCHE HYPO-UND VEREINSBANK AG
By: /s/ Xxx Xxxx
----------------------------------------------
Title: Senior Vice President
By: /s/ Xxxx Xxxxxxx
----------------------------------------------
Title: Assistant Vice President
COMMERZBANK AG
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------------
Title: Senior Vice President
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------------
Title: Vice President
KFW
By: /s/ Xxxxxx Xxxx
----------------------------------------------
Title: First Vice President
By: /s/ Xxxx Xxxxxxx
----------------------------------------------
Title: Senior Project Manager
MIZUHO CORPORATE BANK, LTD.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------------
Title: Deputy General Manager
BLUE RIDGE INVESTMENTS, L.L.C., as Lender
By: /s/ Xxxx X. Xxxxx
----------------------------------------------
Title: Managing Director
Schedule 1.01(a)
Part I
Holdings Agreements
Parent Guarantee and Pledge Agreement
Bidco Pledge
CAC Note
U.S. Collateral Agreement
Part II
Supplement to U.S. Collateral Agreement
executed by US Holdco
