SENIOR SECURED BRIDGE LOAN CREDIT AGREEMENT Dated as of February 5, 2008, Among BERRY PLASTICS CORPORATION (formerly Berry Plastics Holding Corporation), as Borrower, THE LENDERS PARTY HERETO, BANK OF AMERICA, N.A., as Collateral Agent and...
EXECUTION
VERSION
$520,000,000
Dated as
of February 5, 2008,
Among
XXXXX
PLASTICS CORPORATION
(formerly
Xxxxx Plastics Holding Corporation),
as
Borrower,
THE
LENDERS PARTY HERETO,
BANK OF
AMERICA, N.A.,
as
Collateral Agent and Administrative Agent
XXXXXXX
XXXXX CREDIT PARTNERS L.P.,
as
Syndication Agent,
XXXXXX
BROTHERS INC.,
as
Documentation Agent,
BANC OF
AMERICA SECURITIES LLC
XXXXXXX
XXXXX CREDIT PARTNERS X.X.
XXXXXX
BROTHERS INC.,
as Joint
Bookrunners and
Joint
Lead Arrangers
_________________
|
TABLE OF
CONTENTS
|
ARTICLE
I
|
Page |
|
Definitions
|
|
SECTION
1.01.
|
Defined
Terms
|
1
|
SECTION
1.02.
|
Terms
Generally
|
46
|
SECTION
1.03.
|
Effectuation
of Transactions
|
47
|
SECTION
1.04.
|
Senior
Debt
|
47
|
|
ARTICLE
II
|
|
|
The
Credits
|
|
SECTION
2.01.
|
Commitment
|
47
|
SECTION
2.02.
|
Loans
and Borrowings
|
49
|
SECTION
2.03.
|
Requests
for Borrowings
|
49
|
SECTION
2.04.
|
[Reserved]
|
50
|
SECTION
2.05.
|
[Reserved].
|
50
|
SECTION
2.06.
|
Funding
of Borrowings
|
50
|
SECTION
2.07.
|
Interest
Elections
|
50
|
SECTION
2.08.
|
Termination
of Commitment
|
51
|
SECTION
2.09.
|
Repayment
of Loans; Evidence of Debt
|
51
|
SECTION
2.10.
|
Prepayments,
etc.
|
52
|
SECTION
2.11.
|
Change
of Control Prepayment Offer
|
53
|
SECTION
2.12.
|
Fees
|
54
|
SECTION
2.13.
|
Interest
|
54
|
SECTION
2.14.
|
Alternate
Rate of Interest
|
55
|
SECTION
2.15.
|
Increased
Costs
|
55
|
SECTION
2.16.
|
Break
Funding Payments
|
56
|
SECTION
2.17.
|
Taxes
|
57
|
SECTION
2.18.
|
Payments
Generally; Pro Rata Treatment; Sharing of Set offs
|
58
|
SECTION
2.19.
|
Mitigation
Obligations; Replacement of Lenders
|
60
|
SECTION
2.20.
|
Illegality
|
61
|
|
ARTICLE
III
|
|
|
Representations
and Warranties
|
|
SECTION
3.01.
|
Organization;
Powers
|
61
|
SECTION
3.02.
|
Authorization
|
61
|
SECTION
3.03.
|
Enforceability
|
62
|
SECTION
3.04.
|
Governmental
Approvals
|
62
|
SECTION
3.05.
|
Financial
Statements
|
62
|
SECTION
3.06.
|
No
Material Adverse Effect
|
63
|
SECTION
3.07.
|
Title
to Properties; Possession Under Leases
|
63
|
-i-
SECTION
3.08.
|
Subsidiaries
|
64
|
SECTION
3.09.
|
Litigation;
Compliance with Laws
|
64
|
SECTION
3.10.
|
Federal
Reserve Regulations
|
64
|
SECTION
3.11.
|
Investment
Company Act
|
64
|
SECTION
3.12.
|
Use
of Proceeds
|
64
|
SECTION
3.13.
|
Tax
Returns
|
65
|
SECTION
3.14.
|
No
Material Misstatements
|
65
|
SECTION
3.15.
|
Employee
Benefit Plans
|
65
|
SECTION
3.16.
|
Environmental
Matters
|
66
|
SECTION
3.17.
|
Security
Documents
|
66
|
SECTION
3.18.
|
Location
of Real Property and Leased Premises
|
67
|
SECTION
3.19.
|
Solvency
|
68
|
SECTION
3.20.
|
Labor
Matters
|
68
|
SECTION
3.21.
|
Insurance
|
68
|
SECTION
3.22.
|
No
Default
|
68
|
SECTION
3.23.
|
Intellectual
Property; Licenses, etc.
|
68
|
SECTION
3.24.
|
Senior
Debt
|
69
|
|
ARTICLE
IV
|
|
|
Conditions
of Lending
|
|
|
ARTICLE
V
|
|
|
Affirmative
Covenants
|
|
SECTION
5.01.
|
Existence;
Businesses and Properties
|
72
|
SECTION
5.02.
|
Insurance
|
72
|
SECTION
5.03.
|
Taxes
|
73
|
SECTION
5.04.
|
Financial
Statements, Reports, etc.
|
73
|
SECTION
5.05.
|
Litigation
and Other Notices
|
75
|
SECTION
5.06.
|
Compliance
with Laws
|
75
|
SECTION
5.07.
|
Maintaining
Records; Access to Properties and Inspections
|
76
|
SECTION
5.08.
|
Use
of Proceeds
|
76
|
SECTION
5.09.
|
Compliance
with Environmental Laws
|
76
|
SECTION
5.10.
|
Further
Assurances; Additional Security
|
76
|
SECTION
5.11.
|
[Reserved]
|
78
|
SECTION
5.12.
|
Securities
Demand
|
78
|
SECTION
5.13.
|
Exchange
Notes
|
79
|
|
ARTICLE
VI
|
|
|
Negative
Covenants
|
|
SECTION
6.01.
|
Limitation
on Incurrence of Indebtedness and Issuance of Disqualified Stock and
Preferred Stock
|
80
|
SECTION
6.02.
|
Liens
|
85
|
SECTION
6.03.
|
Asset
Sales
|
85
|
SECTION
6.04.
|
Limitation
on Restricted Payments
|
86
|
SECTION
6.05.
|
Mergers,
Consolidations, Sales of Assets and Acquisitions
|
90
|
-ii-
SECTION
6.06.
|
Dividend
and Other Payment Restrictions Affecting Subsidiaries
|
92
|
SECTION
6.07.
|
Transactions
with Affiliates
|
94
|
SECTION
6.08.
|
Amendment
of Security Documents
|
96
|
SECTION
6.09.
|
Termination
and Suspension of Certain Covenants
|
97
|
|
ARTICLE
VII
|
|
|
Events
of Default
|
|
SECTION
7.01.
|
Events
of Default
|
97
|
SECTION
7.02.
|
Exclusion
of Immaterial Subsidiaries
|
100
|
|
ARTICLE
VIII
|
|
|
The
Agents
|
|
SECTION
8.01.
|
Appointment
|
100
|
SECTION
8.02.
|
Delegation
of Duties
|
102
|
SECTION
8.03.
|
Exculpatory
Provisions
|
102
|
SECTION
8.04.
|
Reliance
by Administrative Agent
|
103
|
SECTION
8.05.
|
Notice
of Default
|
103
|
SECTION
8.06.
|
Non-Reliance
on Agents and Other Lenders
|
103
|
SECTION
8.07.
|
Indemnification
|
104
|
SECTION
8.08.
|
Agent
in Its Individual Capacity
|
104
|
SECTION
8.09.
|
Successor
Administrative Agent
|
104
|
SECTION
8.10.
|
Agents
and Arrangers
|
105
|
|
ARTICLE
IX
|
|
|
Miscellaneous
|
|
SECTION
9.01.
|
Notices;
Communications
|
105
|
SECTION
9.02.
|
Survival
of Agreement
|
106
|
SECTION
9.03.
|
Binding
Effect
|
106
|
SECTION
9.04.
|
Successors
and Assigns
|
106
|
SECTION
9.05.
|
Expenses;
Indemnity
|
109
|
SECTION
9.06.
|
Right
of Set off
|
111
|
SECTION
9.07.
|
Applicable
Law
|
111
|
SECTION
9.08.
|
Waivers;
Amendment
|
111
|
SECTION
9.09.
|
Interest
Rate Limitation
|
113
|
SECTION
9.10.
|
Entire
Agreement
|
113
|
SECTION
9.11.
|
WAIVER
OF JURY TRIAL
|
114
|
SECTION
9.12.
|
Severability
|
114
|
SECTION
9.13.
|
Counterparts
|
114
|
SECTION
9.14.
|
Headings
|
114
|
SECTION
9.15.
|
Jurisdiction;
Consent to Service of Process
|
114
|
SECTION
9.16.
|
Confidentiality
|
115
|
SECTION
9.17.
|
Platform;
Borrower Materials
|
115
|
SECTION
9.18.
|
Release
of Liens and Guarantees
|
116
|
SECTION
9.19.
|
PATRIOT
Act Notice
|
116
|
SECTION
9.20.
|
Intercreditor
Agreements and Collateral Agreement
|
116
|
-iii-
SECTION
9.21.
|
Conversion
of Covenants; Events of Default
|
116
|
SECTION
9.22.
|
No
Fiduciary Duty
|
117
|
Exhibits
and Schedules
|
|
Exhibit
A
|
Form
of Assignment and Acceptance
|
Exhibit
B
|
Form
of Solvency Certificate
|
Exhibit
C
|
Form
of Borrowing Request
|
Exhibit
D
|
Senior
Secured Exchange Notes Indenture
|
Exhibit
E-1
|
Form
of Bridge Note
|
Exhibit
E-2
|
Form
of Rollover Note
|
Exhibit
F
|
Form
of Collateral Agreement
|
Exhibit
G
|
Form
of Registration Rights Agreement
|
Exhibit
H
|
Form
of Exchange Notice
|
Exhibit
I
|
Form
of Closing Certificate
|
Schedule
1.01(a)
|
Certain
U.S. Subsidiaries
|
Schedule
1.01(d)
|
Immaterial
Subsidiaries
|
Schedule
2.01
|
Commitments
|
Schedule
3.01
|
Organization
and Good Standing
|
Schedule
3.04
|
Governmental
Approvals
|
Schedule
3.07(b)
|
Possession
Under Leases
|
Schedule
3.08(a)
|
Subsidiaries
|
Schedule
3.08(b)
|
Subscriptions
|
Schedule
3.13
|
Taxes
|
Schedule
3.16
|
Environmental
Matters
|
Schedule
3.21
|
Insurance
|
Schedule
3.23
|
Intellectual
Property
|
Schedule
4.02(d)
|
Post-Closing
Interest Deliveries
|
Schedule
6.07
|
Affiliate
Transactions
|
Schedule
9.01
|
Notice
Information
|
-iv-
This
SENIOR SECURED BRIDGE LOAN CREDIT AGREEMENT is entered into as of
February 5, 2008 (this “Agreement”), among
XXXXX PLASTICS CORPORATION (formerly Xxxxx Plastics Holding Corporation), a
Delaware corporation (the “Borrower”), the
LENDERS party hereto from time to time, BANK OF AMERICA, N.A., as administrative
agent and collateral agent (in such capacities or its successors in such
capacities, the “Administrative
Agent”) for the Lenders, XXXXXXX XXXXX CREDIT PARTNERS L.P., as
syndication agent (in such capacity, the “Syndication Agent”),
and XXXXXX BROTHERS INC. as documentation agent (in such capacity, the “Documentation
Agent”).
WHEREAS,
on April 3, 2007, Xxxxx Plastics Group, Inc. (“Holdings”) completed
a stock-for-stock merger (the “Xxxxx Covalence
Merger”) with Covalence Specialty Materials Holding Corp. in which the
resulting company retained the name Xxxxx Plastics Group, Inc.
WHEREAS,
immediately following the Xxxxx Covalence Merger, Xxxxx Plastics Holding
Corporation and Covalence Specialty Materials Corp. (“Covalence”) were
combined as a direct subsidiary of Xxxxx Plastics Group, Inc. and the resulting
company retained the name Xxxxx Plastics Holding Corporation.
WHEREAS,
on December 28, 2007, Xxxxx Plastics Holding Corporation was combined together
with Xxxxx Plastics Corporation in a merger in which Xxxxx Plastics Holding
Corporation survived and was renamed Xxxxx Plastics Corporation.
WHEREAS,
on December 21, 2007, the Borrower, Captive Holdings, Inc., and Captive
Holdings, LLC (“Captive Holdings”)
entered into a stock purchase agreement, as amended, supplemented or modified
from time to time prior to the date hereof in accordance with the terms of this
Agreement (the “Captive Merger
Agreement”);
WHEREAS,
on the Closing Date, the Borrower will enter into this Agreement, under which
the Borrower will obtain $520,000,000 in senior secured interim loans;
and
WHEREAS,
the Borrower desires to obtain Bridge Loans hereunder, the proceeds of which
will be used (i) to finance the Captive Acquisition (as defined below) and (ii)
to pay costs related to the Transactions.
In
consideration of the mutual covenants and agreements herein contained, the
parties hereto covenant and 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:
“ABL Assets” shall
mean any Accounts and Inventory (as such terms are defined in the Revolving
Credit Agreement) of the Borrower or any Subsidiary.
“ABR” shall mean, for
any day, a fluctuating rate per annum equal to the higher of (a) the Federal
Funds Effective Rate plus 1/2 of 1% and (b) the rate of interest in effect for
such day as publicly announced from time to time by Bank of America as its
“prime rate” at its principal office in Xxx Xxxx,
-0-
Xxx
Xxxx. Any change in such rate announced by Bank of America shall take
effect at the opening of business on the day specified in the public
announcement of such change.
“ABR Borrowing” shall
mean a Borrowing comprised of ABR Loans.
“ABR Loan” shall mean
any Loan bearing interest at a rate determined by reference to the ABR in
accordance with the provisions of Article II.
“Acquired
Indebtedness” shall mean, with respect to any specified
Person:
(1) Indebtedness
of any other Person existing at the time such other Person is merged,
consolidated or amalgamated with or into or became a Restricted Subsidiary of
such specified Person, and
(2) Indebtedness
secured by a Lien encumbering any asset acquired by such specified
Person.
“Acquisition
Documents” shall mean the Captive Merger Agreement and any other document
entered into in connection therewith, in each case as amended, supplemented or
modified from time to time prior to the Closing Date or thereafter (so long as
any amendment, supplement or modification after the Closing Date, together with
all other amendments, supplements and modifications after the Closing Date,
taken as a whole, is not more disadvantageous to the Lenders in any material
respect than the Acquisition Documents as in effect on the Closing
Date).
“Act” shall have the
meaning assigned to such term in Section 9.19.
“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 equal to (a) the LIBO Rate in effect for such
Interest Period divided by (b) one 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
Questionnaire” shall mean an Administrative Questionnaire in a form
supplied by the Administrative Agent.
“Affiliate” of any
specified Person shall mean any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified
Person. For purposes of this definition, “control” (including, with
correlative meanings, the terms “controlling,” “controlled by” and “under common
control with”), as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise.
“Affiliate
Transaction” shall have the meaning assigned to such term in Section
6.07(a).
“Agents” shall mean
the Administrative Agent and the Collateral Agent.
“Agreement” shall have
the meaning assigned to such term in the introductory paragraph of this
Agreement.
--
-2-
“Applicable Margin”
shall mean initially (i) 4.00% in the case of any Eurocurrency Loan and (ii)
3.00% in the case of any ABR Loan. The Applicable Margin will increase by 0.50%
per annum on August 5, 2008 and shall increase by an additional 0.50% per annum
at the end of each three-month period thereafter until the Rollover Loan
Maturity Date. Notwithstanding the foregoing, the Applicable Margin shall be
adjusted such that the applicable interest rate on the Loans shall not exceed
the Rate Cap.
“Approved Fund” shall
have the meaning assigned to such term in Section 9.04(b).
“Asset Sale” shall
mean:
(1) the
sale, conveyance, transfer or other disposition (whether in a single transaction
or a series of related transactions) of property or assets (including by way of
a Sale/Leaseback Transaction) outside the ordinary course of business of the
Borrower or any Restricted Subsidiary of the Borrower (each referred to in this
definition as a “disposition”) or
(2) the
issuance or sale of Equity Interests (other than directors’ qualifying shares
and shares issued to foreign nationals or other third parties to the extent
required by applicable law) of any Restricted Subsidiary (other than to the
Borrower or another Restricted Subsidiary of the Borrower) (whether in a single
transaction or a series of related transactions),
in each
case other than:
(a) a
disposition of Cash Equivalents or Investment Grade Securities or obsolete or
worn out property or equipment in the ordinary course of business;
(b) the
disposition of all or substantially all of the assets of the Borrower in a
manner permitted pursuant to Section 6.05 or any disposition that constitutes a
Change of Control;
(c) any
Restricted Payment or Permitted Investment that is permitted to be made, and is
made, under Section 6.04;
(d) any
disposition of assets or issuance or sale of Equity Interests of any Restricted
Subsidiary, which assets or Equity Interests so disposed or issued have an
aggregate Fair Market Value of less than $7.5 million;
(e) any
disposition of property or assets, or the issuance of securities, by a
Restricted Subsidiary of the Borrower to the Borrower or by the Borrower or a
Restricted Subsidiary of the Borrower to a Restricted Subsidiary of the
Borrower;
(f) any
exchange of assets (including a combination of assets and Cash Equivalents) for
assets related to a Similar Business of comparable or greater market value or
usefulness to the business of the Borrower and its Restricted Subsidiaries as a
whole, as determined in good faith by the Borrower;
(g) foreclosure
on assets of the Borrower or any of its Restricted Subsidiaries;
(h) any
sale of Equity Interests in, or Indebtedness or other securities of, an
Unrestricted Subsidiary;
(i) the
lease, assignment or sublease of any real or personal property in the ordinary
course of business;
--
-3-
(j) any
sale of inventory or other assets in the ordinary course of
business;
(k) any
grant in the ordinary course of business of any license of patents, trademarks,
know-how or any other intellectual property;
(l) a
transfer of accounts receivable and related assets of the type specified in the
definition of “Receivables Financing” (or a fractional undivided interest
therein) by a Receivables Subsidiary in a Qualified Receivables Financing;
and
(m) the
sale of any property in a Sale/Leaseback Transaction within six months of the
acquisition of such property.
“Assignee” shall have
the meaning assigned to such term in Section 9.04(b).
“Assignment and
Acceptance” shall mean an assignment and acceptance entered into by a
Lender and an Assignee, and accepted by the Administrative Agent and the
Borrower (if required by such assignment and acceptance), in the form of Exhibit A or
such other form as shall be approved by the Administrative Agent and reasonably
satisfactory to the Borrower.
“Bank Agreement Security
Documents” shall mean the Existing Senior Security Agreement, the Second
Amended and Restated First Lien Intellectual Property Security Agreement dated
as of April 3, 2007, among Xxxxx Plastics Group, Inc., the Borrower, the
subsidiaries of the Borrower party thereto, the Term Loan Collateral Agent and
the Revolving Facility Collateral Agent, as amended, supplemented, restated,
renewed, refunded, replaced, restructured, repaid, refinanced or otherwise
modified from time to time, all “Mortgages” as defined in the Revolving Credit
Agreement and/or the Term Loan Credit Agreement, and any other documents now
existing or entered into after the Closing Date that create Liens on any assets
or properties of the Borrower or any Subsidiary Loan Party to secure any Term
Loan Obligations or Revolving Facility Obligations.
“Bank Indebtedness”
shall mean any and all amounts payable under or in respect of any Credit
Agreement and any other Credit Agreement Documents as amended, restated,
supplemented, waived, replaced, restructured, repaid, refunded, refinanced or
otherwise modified from time to time (including after termination of any Credit
Agreement), including principal, premium (if any), interest (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Borrower whether or not a claim for post-filing
interest is allowed in such proceedings), fees, charges, expenses, reimbursement
obligations, guarantees and all other amounts payable thereunder or in respect
thereof.
“Bank of America”
shall mean Bank of America, N.A., and its successors.
“Xxxxx
Covalence Merger” shall have the
meaning assigned to it in the recitals to this Agreement.
“Board” shall mean the
Board of Governors of the Federal Reserve System of the United States of
America.
“Board of Directors”
shall mean, as to any Person, the board of directors or managers, as applicable,
of such Person (or, if such Person is a partnership, the board of directors or
other governing body of the general partner of such Person) or any duly
authorized committee thereof.
--
-4-
“Borrower” shall have
the meaning assigned to such term in the introductory paragraph of this
Agreement.
“Borrower Materials”
shall have the meaning assigned to such term in Section 9.17.
“Borrowing” shall mean
a group of Loans of a single Type 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 $5.0 million.
“Borrowing Multiple”
shall mean $1.0 million.
“Borrowing Request”
shall mean a request by the Borrower in accordance with the terms of
Section 2.03 and substantially in the form of Exhibit C.
“Bridge Loan” shall
mean each of the interim bridge loans made to the Borrower pursuant to Section
2.01(a).
“Bridge Loan
Borrowing” shall mean a borrowing of Bridge Loans.
“Bridge Loan Maturity
Date” shall mean February 5, 2009.
“Bridge Note” shall
have the meaning set forth in Section 2.09(e).
“Budget” shall have
the meaning assigned to such term in Section 5.04(e).
“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 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.
“Capital Stock” shall
mean:
(a) in
the case of a corporation, corporate stock or shares;
(b) in
the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock;
(c) in
the case of a partnership or limited liability company, partnership or
membership interests (whether general or limited); and
(d) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.
“Capitalized Lease
Obligation” shall mean, at the time any determination thereof is to be
made, the amount of the liability in respect of a capital lease that would at
such time be required to be capitalized and reflected as a liability on a
balance sheet (excluding the footnotes thereto) in accordance with
GAAP.
--
-5-
“Captive Acquisition”
shall mean the acquisition by the Borrower of substantially all of the
outstanding shares of Capital Stock of Captive Holdings, Inc. pursuant to the
Captive Merger Agreement.
“Captive Credit
Agreement” shall mean that certain credit agreement, dated August 18,
2005 by and among Captive Holdings, Inc., Captive Plastics, Inc., the guarantors
party thereto, Credit Suisse, as administrative agent and collateral agent, and
the lenders from time to time party thereto, as amended, modified or
supplemented from time to time.
“Captive Holdings”
shall have the meaning assigned to it in the recitals to this
Agreement.
“Captive Merger
Agreement” shall have the meaning assigned to it in the recitals to this
Agreement.
“Captive Merger
Documents” shall mean the collective reference to the Captive Merger
Agreement, all material exhibits and schedules thereto and all agreements
expressly contemplated thereby.
“Captive Note” shall
mean that certain $10,000,000 subordinated note, dated July 21, 2004 by and
among Captive Holdings, Inc. and the Xxxx X. Xxxxxxxx Lifetime
Trust.
“Captive Second Lien Credit
Agreement” shall mean that certain second lien credit
agreement, dated December 23, 2005 by and among Captive Holdings, Inc., Captive
Plastics, Inc., the guarantors party thereto and Credit Suisse, as
administrative agent and collateral agent, and the lenders from time to time
party thereto, as amended, modified or supplemented from time to
time.
“Cash Contribution
Amount” shall mean the aggregate amount of cash contributions made to the
capital of the Borrower described in the definition of “Contribution
Indebtedness.”
“Cash Equivalents”
shall mean:
(a) Dollars,
pounds sterling, euros, the national currency of any member state in the
European Union or, in the case of any Foreign Subsidiary that is a Restricted
Subsidiary, such local currencies held by it from time to time in the ordinary
course of business;
(b) securities
issued or directly and fully guaranteed or insured by the U.S. government or any
country that is a member of the European Union or any agency or instrumentality
thereof in each case maturing not more than two years from the date of
acquisition;
(c) certificates
of deposit, time deposits and eurodollar time deposits with maturities of one
year or less from the date of acquisition, bankers’ acceptances, in each case
with maturities not exceeding one year, and overnight bank deposits, in each
case with any commercial bank having capital and surplus in excess of $250
million and whose long-term debt is rated “A” or the equivalent thereof by
Xxxxx’x or S&P (or reasonably equivalent ratings of another internationally
recognized ratings agency);
(d) repurchase
obligations for underlying securities of the types described in clauses (b) and
(c) above entered into with any financial institution meeting the qualifications
specified in clause (c) above;
--
-6-
(e) commercial
paper issued by a corporation (other than an Affiliate of the Borrower) rated at
least “A-1” or the equivalent thereof by Xxxxx’x or S&P (or reasonably
equivalent ratings of another internationally recognized ratings agency) and in
each case maturing within one year after the date of acquisition;
(f) readily
marketable direct obligations issued by any state of the United States of
America or any political subdivision thereof having one of the two highest
rating categories obtainable from either Xxxxx’x or S&P (or reasonably
equivalent ratings of another internationally recognized ratings agency) in each
case with maturities not exceeding two years from the date of
acquisition;
(g) Indebtedness
issued by Persons (other than the Funds or any of the Fund Affiliates) with a
rating of “A” or higher from S&P or “A-2” or higher from Xxxxx’x in each
case with maturities not exceeding two years from the date of acquisition;
and
(h) investment
funds investing at least 95% of their assets in securities of the types
described in clauses (a) through (g) above.
“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 interpretation or application
thereof by any Governmental Authority after the Closing Date or (c) compliance
by any Lender (or, for purposes of Section 2.15(b), by any Lending Office
of such Lender or by such Lender’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.
“Change of Control”
shall mean the occurrence of any of the following events:
(a) the
sale, lease or transfer, in one or a series of related transactions, of all or
substantially all the assets of the Borrower and its Subsidiaries, taken as a
whole, to a Person other than any of the Permitted Holders; or
(b) the
Borrower becomes aware (by way of a report or any other filing pursuant to
Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) of
the acquisition by any Person or group (within the meaning of Section 13(d)(3)
or Section 14(d)(2) of the Exchange Act, or any successor provision), including
any group acting for the purpose of acquiring, holding or disposing of
securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act),
other than any of the Permitted Holders, in a single transaction or in a related
series of transactions, by way of merger, consolidation or other business
combination or purchase of beneficial ownership (within the meaning of Rule
13d-3 under the Exchange Act, or any successor provision), of more than 50% of
the total voting power of the voting stock of the Borrower or any direct or
indirect parent of the Borrower.
“Change of Control
Offer” shall have the meaning assigned to such term in Section
2.11.
“Change of Control
Payment” shall have the meaning assigned to such term in Section
2.11.
“Change of Control Payment
Date” shall have the meaning assigned to such term in Section
2.11.
“Charges” shall have
the meaning assigned to such term in Section 9.09.
--
-7-
“Closing Date” shall
mean February 5, 2008.
“Code” shall mean the
Internal Revenue Code of 1986, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
“Collateral” shall
mean all the “Collateral” as defined in any Security Document and shall also
include the Mortgaged Properties and all other property that is subject to any
Lien in favor of the Collateral Agent or any Subagent for the benefit of the
Lenders pursuant to any Security Documents.
“Collateral Agent”
shall mean the party acting as collateral agent for the Secured Parties under
the Security Documents. On the Closing Date, the Collateral Agent is
the same Person as the Administrative Agent. Unless the context
otherwise requires, the term “Administrative Agent” as used herein shall, unless
the context otherwise requires, include the Collateral Agent, notwithstanding
various specific references to the Collateral Agent herein.
“Collateral Agreement”
shall mean the Bridge Loan Guarantee and Collateral Agreement, dated as of the
Closing Date, as amended, supplemented or otherwise modified from time to time,
in the form of Exhibit E, among
the Borrower, each Subsidiary Loan Party and the Collateral Agent.
“Collateral and Guarantee
Requirement” shall mean the requirement that:
(a) on
the Closing Date, the Collateral Agent shall have received from the Borrower and
each Subsidiary Loan Party, a counterpart of the Collateral Agreement duly
executed and delivered on behalf of such Person;
(b) on
or before the Closing Date, (i) the Collateral Agent shall have received (A) a
pledge of all the issued and outstanding Equity Interests of each Domestic
Subsidiary (other than Subsidiaries listed on Schedule 1.01(a))
owned on the Closing Date directly by or on behalf of the Borrower or any
Subsidiary Loan Party and (B) a pledge of 65% of the outstanding Equity
Interests of (1) each “first tier” Foreign Subsidiary directly owned by any Loan
Party (except for NIM Holdings Limited, Xxxxx Plastics Asia Pte. Ltd., and
Ociesse s.r.l., Xxxxx Plastics Acquisition Corporation II, and Xxxxx Plastics
Acquisition Corporation XIV, LLC), and (2) each “first tier” Qualified CFC
Holding Company directly owned by any Loan Party and (ii) subject to the terms
of the Intercreditor Agreements, the Collateral Agent shall have received all
certificates or other instruments (if any) representing such Equity Interests,
together with stock powers or other instruments of transfer with respect thereto
endorsed in blank;
(c) (i)
all Indebtedness of the Borrower and each Subsidiary having, in the case of each
instance of Indebtedness, an aggregate principal amount in excess of $5.0
million (other than (A) intercompany current liabilities incurred in the
ordinary course of business in connection with the cash management operations of
the Borrower and its Subsidiaries or (B) to the extent that a pledge of such
promissory note or instrument would violate applicable law) that is owing to any
Loan Party shall be evidenced by a promissory note or an instrument and shall
have been pledged pursuant to the Collateral Agreement (or other applicable
Security Document as reasonably required by the Administrative Agent) (which
pledge, in the case of any intercompany note evidencing debt owed by a Foreign
Subsidiary to a Loan Party, shall be limited to 65% of the amount outstanding
thereunder), and (ii) the Possessory 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;
--
-8-
(d) in
the case of any Person that becomes a Subsidiary Loan Party after the Closing
Date, the Collateral Agent shall have received a supplement to each of the
Collateral Agreement, the Senior Lender Intercreditor Agreement, the Second
Priority Intercreditor Agreement and the Senior Fixed Lender Intercreditor
Agreement, in the form specified therein, duly executed and delivered on behalf
of such Subsidiary Loan Party (it being understood that each Domestic Subsidiary
that is acquired or formed after the Closing Date (including any Unrestricted
Subsidiary that is redesignated) is a Subsidiary Loan Party and is required to
become a party to the Collateral Agreement and the Intercreditor
Agreements);
(e) in
the case of any Person that becomes a “first tier” Foreign Subsidiary directly
owned by the Borrower or a Subsidiary Loan Party after the Closing Date, the
Collateral Agent shall have received, as promptly as reasonably practicable
following a request by the Collateral Agent, a Foreign Pledge Agreement, duly
executed and delivered on behalf of such Foreign Subsidiary and the direct
parent company of such Foreign Subsidiary;
(f) after
the Closing Date, (i) all the outstanding Equity Interests of (A) any Person
that becomes a Subsidiary Loan Party after the Closing Date and (B) subject to
Section 5.10(g), all the Equity Interests that are acquired by a Loan Party
after the Closing Date (including, without limitation, the Equity Interests of
any Receivables Subsidiary established after the Closing Date), shall have been
pledged pursuant to the Collateral Agreement; provided that in no
event shall more than 65% of the issued and outstanding Equity Interests of any
“first tier” Foreign Subsidiary or any “first tier” Qualified CFC Holding
Company directly owned by such Loan Party be pledged to secure Obligations, and
in no event shall any of the issued and outstanding Equity Interests of any
Foreign Subsidiary that is not a “first tier” Foreign Subsidiary of a Loan Party
or any Qualified CFC Holding Company that is not a “first tier” Subsidiary of a
Loan Party be pledged to secure Obligations, and (ii) subject to the terms of
the Intercreditor Agreements, the Collateral Agent shall have received all
certificates or other instruments (if any) representing such Equity Interests,
together with stock powers or other instruments of transfer with respect thereto
endorsed in blank;
(g) except
as otherwise contemplated by any Security Document or the Intercreditor
Agreements, 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;
(h) [Reserved];
(i) [Reserved];
(j) [Reserved];
(k) except
as otherwise contemplated by any Security Document, each Loan Party shall have
obtained all consents and approvals required to be obtained by it in connection
with (i) the execution and delivery of all Security Documents (or supplements
thereto) to which it is a party and the granting by it of the Liens thereunder
and (ii) the performance of its obligations thereunder; and
--
-9-
(l) after
the Closing Date, the Administrative Agent shall have received (i) such other
Security Documents as may be required to be delivered pursuant to Section 5.10,
and (ii) upon reasonable request by the Administrative Agent, evidence of
compliance with any other requirements of Section 5.10.
“Commitment” shall
mean, with respect to any Lender, such Lender’s commitment to make Bridge Loans
under Section 2.01(a) in the amount set forth opposite such Lender’s name on
Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Commitment, as applicable. The aggregate
amount of Commitments of all Lenders on the Closing Date is
$520,000,000.
“Commitment Banks”
shall mean Banc of America Bridge LLC, Xxxxxxx Xxxxx Credit Partners L.P.,
Xxxxxx Commercial Paper Inc. and Xxxxxx Brothers Commercial Bank.
“Commitment Letter”
shall mean that certain Commitment Letter dated December 21, 2007 by and among
the Borrower, Banc of America Bridge LLC, Banc of America Securities LLC,
Xxxxxxx Sachs Credit Partners L.P., Xxxxxx Commercial Paper Inc., Xxxxxx
Brothers Commercial Bank and Xxxxxx Brothers Inc.
“Conduit Lender” shall
mean any special purpose corporation organized and administered by any Lender
for the purpose of making Loans otherwise required to be made by such Lender and
designated by such Lender in a written instrument; provided that the
designation by any Lender of a Conduit Lender shall not relieve the designating
Lender of any of its obligations to fund a Loan under this Agreement if, for any
reason, its Conduit Lender fails to fund any such Loan, and the designating
Lender (and not the Conduit Lender) shall have the sole right and responsibility
to deliver all consents and waivers required or requested under this Agreement
with respect to its Conduit Lender; provided, further, that no
Conduit Lender shall (a) be entitled to receive any greater amount pursuant to
Section 2.15, 2.16, 2.17 or 9.05 than the designating Lender would have
been entitled to receive in respect of the extensions of credit made by such
Conduit Lender or (b) be deemed to have any Commitment.
“consolidated” shall
mean, with respect to any Person, such Person consolidated with its Restricted
Subsidiaries, and shall not include any Unrestricted Subsidiary, but the
interest of such Person in an Unrestricted Subsidiary shall be accounted for as
an Investment.
“Consolidated Interest
Expense” shall mean, with respect to any Person for any period, the sum,
without duplication, of:
(1) consolidated
interest expense of such Person and its Restricted Subsidiaries for such period,
to the extent such expense was deducted in computing Consolidated Net Income
(including amortization of original issue discount, the interest component of
Capitalized Lease Obligations, and net payments and receipts (if any) pursuant
to interest rate Hedging Obligations and excluding amortization of deferred
financing fees and expensing of any bridge or other financing fees);
plus
(2) consolidated
capitalized interest of such Person and its Restricted Subsidiaries for such
period, whether paid or accrued; plus
(3) commissions,
discounts, yield and other fees and charges Incurred in connection with any
Receivables Financing which are payable to Persons other than the Borrower and
its Restricted Subsidiaries; minus
--
-10-
(4) interest
income for such period.
“Consolidated Net
Income” shall mean, with respect to any Person for any period, the
aggregate of the Net Income of such Person and its Restricted Subsidiaries for
such period, on a consolidated basis; provided, however,
that:
(a) any
net after-tax extraordinary, nonrecurring or unusual gains or losses or income,
expenses or charges (less all fees and expenses relating thereto), including,
without limitation, any severance expenses, any expenses related to any
reconstruction, recommissioning or reconfiguration of fixed assets for alternate
uses, and fees, expenses or charges relating to new product lines, plant
shutdown costs, acquisition integration costs, expenses or charges related to
any Equity Offering, Permitted Investment, acquisition or Indebtedness permitted
to be Incurred by this Agreement (in each case, whether or not successful),
including any such fees, expenses, charges or change in control payments made
under the Acquisition Documents or otherwise related to the Transactions, in
each case, shall be excluded;
(b) any
increase in amortization or depreciation or any one-time non-cash charges
increases or reductions in Net Income, in each case resulting from purchase
accounting in connection with the Transactions or any acquisition that is
consummated after the Closing Date shall be excluded;
(c) the
Net Income for such period shall not include the cumulative effect of a change
in accounting principles during such period;
(d) any
net after-tax income or loss from discontinued operations and any net after-tax
gains or losses on disposal of discontinued operations shall be
excluded;
(e) any
net after-tax gains or losses (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 the Borrower) shall be excluded;
(f) any
net after-tax gains or losses (less all fees and expenses or charges relating
thereto) attributable to the early extinguishment of indebtedness shall be
excluded;
(g) the
Net Income for such period of any Person that is not a Subsidiary of such
Person, or is an Unrestricted Subsidiary, or that is accounted for by the equity
method of accounting, shall be included only to the extent of the amount of
dividends or distributions or other payments paid in cash (or to the extent
converted into cash) to the referent Person or a Restricted Subsidiary thereof
in respect of such period;
(h) solely
for the purpose of determining the amount available for Restricted Payments
under clause (a) of the definition of Cumulative Credit, the Net Income for such
period of any Restricted Subsidiary (other than any Subsidiary Loan Party) shall
be excluded to the extent that the declaration or payment of dividends or
similar distributions by such Restricted 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 Restricted
Subsidiary or its stockholders, unless such restrictions with respect to the
payment of dividends or similar distributions have been legally waived; provided
that the Consolidated Net Income of such Person shall be increased by the amount
of div
--
-11-
dends or
other distributions or other payments actually paid in cash (or converted into
cash) by any such Restricted Subsidiary to such Person, to the extent not
already included therein;
(i) an
amount equal to the amount of Tax Distributions actually made to any parent of
such Person in respect of such period in accordance with Section 6.04(b)(xii)
shall be included as though such amounts had been paid as income taxes directly
by such Person for such period;
(j) any
non-cash impairment charges resulting from the application of Statement of
Financial Accounting Standards (“SFAS”) Nos. 142 and
144 and the amortization of intangibles arising pursuant to SFAS No. 141 shall
be excluded;
(k) any
non-cash expense realized or resulting from stock option plans, employee benefit
plans or post-employment benefit plans, grants of stock appreciation or similar
rights, stock options or other rights to officers, directors and employees of
such Person or any of its Restricted Subsidiaries shall be
excluded;
(l) any
(a) severance or relocation costs or expenses, (b) one-time non-cash
compensation charges, (c) the costs and expenses after the Closing Date related
to employment of terminated employees, (d) costs or expenses realized in
connection with, resulting from or in anticipation of the Transactions or (e)
costs or expenses realized in connection with or resulting from stock
appreciation or similar rights, stock options or other rights existing on the
Closing Date of officers, directors and employees, in each case of such Person
or any of its Restricted Subsidiaries, shall be excluded;
(m) accruals
and reserves that are established within 12 months after the Closing Date and
that are so required to be established in accordance with GAAP shall be
excluded;
(n) solely
for purposes of calculating EBITDA, (a) the Net Income of any Person and its
Restricted Subsidiaries shall be calculated without deducting the income
attributable to, or adding the losses attributable to, the minority equity
interests of third parties in any non-wholly-owned Restricted Subsidiary except
to the extent of dividends declared or paid in respect of such period or any
prior period on the shares of Capital Stock of such Restricted Subsidiary held
by such third parties and (b) any ordinary course dividend, distribution or
other payment paid in cash and received from any Person in excess of amounts
included in clause (7) above shall be included;
(o) (a)(i)
the non-cash portion of “straight-line” rent expense shall be excluded and (ii)
the cash portion of “straight-line” rent expense which exceeds the amount
expensed in respect of such rent expense shall be included and (b) non-cash
gains, losses, income and expenses resulting from fair value accounting required
by Statement of Financial Accounting Standards No. 133 shall be
excluded;
(p) unrealized
gains and losses relating to hedging transactions and xxxx-to-market of
Indebtedness denominated in foreign currencies resulting from the applications
of Financial Accounting Standards 52 shall be excluded; and
(q) solely
for the purpose of calculating Restricted Payments, the difference, if positive,
of the Consolidated Taxes of the Borrower calculated in accordance with GAAP and
the actual Consolidated Taxes paid in cash by the Borrower during any Reference
Period shall be included.
--
-12-
Notwithstanding
the foregoing, for the purpose of Section 6.04 only, there shall be excluded
from Consolidated Net Income any dividends, repayments of loans or advances or
other transfers of assets from Unrestricted Subsidiaries of the Borrower or a
Restricted Subsidiary of the Borrower to the extent such dividends, repayments
or transfers increase the amount of Restricted Payments permitted under clauses
(E) and (F) of the definition of “Cumulative Credit.”
“Consolidated Non-cash
Charges” shall mean, with respect to any Person for any period, the
aggregate depreciation, amortization and other non-cash expenses of such Person
and its Restricted Subsidiaries reducing Consolidated Net Income of such Person
for such period on a consolidated basis and otherwise determined in accordance
with GAAP, but excluding any such charge which consists of or requires an
accrual of, or cash reserve for, anticipated cash charges for any future
period.
“Consolidated Taxes”
shall mean provision for taxes based on income, profits or capital, including,
without limitation, state, franchise and similar taxes and any Tax Distributions
taken into account in calculating Consolidated Net Income.
“Contingent
Obligations” shall mean, with respect to any Person, any obligation of
such Person guaranteeing any leases, dividends or other obligations that do not
constitute Indebtedness (“primary obligations”) of any other Person (the
“primary obligor”) in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not
contingent:
(a) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor,
(b) to
advance or supply funds:
(i)for the purchase or payment of any
such primary obligation; or
(ii)to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor; or
(iii)to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation against loss in respect thereof.
“Contribution
Indebtedness” shall mean Indebtedness of the Borrower or any Subsidiary
Loan Party in an aggregate principal amount not greater than twice the aggregate
amount of cash contributions (other than Excluded Contributions) made to the
capital of the Borrower or any such Subsidiary Loan Party after the Closing
Date; provided
that:
(1) such
cash contributions have not been used to make a Restricted Payment,
(2) if
the aggregate principal amount of such Contribution Indebtedness is greater than
the aggregate amount of such cash contributions to the capital of the Borrower
or any such Subsidiary Loan Party, as the case may be, the amount in excess
shall be Indebtedness (other than Secured Indebtedness) with a Stated Maturity
later than the Stated Maturity of the Loans, and
(3) such
Contribution Indebtedness (a) is Incurred within 180 days after the making of
such cash contributions and (b) is so designated as Contribution Indebtedness
pursuant to an Officers’ Certificate on the Incurrence date
thereof.
--
-13-
“Covalence” shall have
the meaning assigned to it in the recitals to this Agreement.
“Covenant Suspension
Event” shall have the meaning assigned to such term in Section
6.09(b).
“Credit Agreement
Documents” shall mean the collective reference to Credit Agreements, any
notes issued pursuant thereto and the guarantees thereof, and the collateral
documents relating thereto, as amended, supplemented, restated, renewed,
refunded, replaced, restructured, repaid, refinanced or otherwise modified from
time to time.
“Credit Agreements”
shall mean (i)(A) the Term Loan Credit Agreement and (B) the Revolving
Credit Agreement, and (ii) whether or not the credit agreements referred to
in clause (i) remains outstanding, if designated by the Borrower to be
included in the definition of “Credit Agreement,” one or more (A) debt
facilities or commercial paper facilities, providing for revolving credit loans,
term loans, receivables financing (including through the sale of receivables to
lenders or to special purpose entities formed to borrow from lenders against
such receivables) or letters of credit, (B) debt securities, indentures or
other forms of debt financing (including convertible or exchangeable debt
instruments or bank guarantees or bankers’ acceptances), or (C) instruments
or agreements evidencing any other Indebtedness, in each case, with the same or
different borrowers or issuers and, in each case, as amended, supplemented,
modified, extended, restructured, renewed, refinanced, restated, replaced or
refunded in whole or in part from time to time.
“Cumulative Credit”
shall mean the sum of (without duplication):
(A) 50%
of the Consolidated Net Income of the Borrower for the period (taken as one
accounting period, the “Reference Period”)
from April 1, 2008 to the end of the Borrower’s most recently ended fiscal
quarter for which internal financial statements are available at the time of
such Restricted Payment (or, in the case such Consolidated Net Income for such
period is a deficit, minus 100% of such deficit), plus
(B) 100%
of the aggregate net proceeds, including cash and the Fair Market Value (as
determined in good faith by Borrower) of property other than cash, received by
the Borrower after the Closing Date from the issue or sale of Equity Interests
of the Borrower (excluding Refunding Capital Stock, Designated Preferred Stock,
Excluded Contributions, Disqualified Stock and the Cash Contribution Amount),
including Equity Interests issued upon conversion of Indebtedness or
Disqualified Stock or upon exercise of warrants or options (other than an
issuance or sale to a Restricted Subsidiary of the Borrower or an employee stock
ownership plan or trust established by the Borrower or any of its Subsidiaries),
plus
(C) 100%
of the aggregate amount of contributions to the capital of the Borrower received
in cash and the Fair Market Value (as determined in good faith by the Borrower)
of property other than cash after the Closing Date (other than Excluded
Contributions, Refunding Capital Stock, Designated Preferred Stock, Disqualified
Stock and the Cash Contribution Amount), plus
(D) the
principal amount of any Indebtedness, or the liquidation preference or maximum
fixed repurchase price, as the case may be, of any Disqualified Stock of the
Borrower or any Restricted Subsidiary thereof issued after the Closing Date
(other than Indebtedness or Disqualified Stock issued to a Restricted
Subsidiary) which has been converted into or exchanged for Equity Interests in
the Borrower (other than Disqualified Stock) or any direct or indirect parent of
the Borrower (provided in the case of any parent, such Indebtedness or
Disqualified Stock is retired or extinguished), plus
--
-14-
(E) 100%
of the aggregate amount received by the Borrower or any Restricted Subsidiary in
cash and the Fair Market Value (as determined in good faith by the Borrower) of
property other than cash received by the Borrower or any Restricted Subsidiary
after the Closing Date from:
(I)the sale or other disposition (other
than to the Borrower or a Restricted Subsidiary of the Borrower) of Restricted
Investments made by the Borrower and its Restricted Subsidiaries and from
repurchases and redemptions of such Restricted Investments from the Borrower and
its Restricted Subsidiaries by any Person (other than the Borrower or any of its
Restricted Subsidiaries) and from repayments of loans or advances which
constituted Restricted Investments (other than in each case to the extent that
the Restricted Investment was made pursuant to clause (vii) or (x) of Section
6.04(b)),
(II)the sale (other than to the Borrower
or a Restricted Subsidiary of the Borrower) of the Capital Stock of an
Unrestricted Subsidiary, or
(III)a distribution or dividend from an
Unrestricted Subsidiary, plus
(F) in
the event any Unrestricted Subsidiary of the Borrower has been redesignated as a
Restricted Subsidiary or has been merged, consolidated or amalgamated with or
into, or transfers or conveys its assets to, or is liquidated into, the Borrower
or a Restricted Subsidiary, in each case after the Closing Date, the Fair Market
Value (as determined in good faith by the Borrower or, if such Fair Market Value
may exceed $25.0 million, in writing by an Independent Financial Advisor) of the
Investment of the Borrower in such Unrestricted Subsidiary at the time of such
redesignation, combination or transfer (or of the assets transferred or
conveyed, as applicable), after taking into account any Indebtedness associated
with the Unrestricted Subsidiary so designated or combined or any Indebtedness
associated with the assets so transferred or conveyed (other than in each case
to the extent that the designation of such Subsidiary as an Unrestricted
Subsidiary was made pursuant to clause (vii) or (x) of Section 6.04(b) or
constituted a Permitted Investment).
“Default” shall mean
any event or condition that upon notice, lapse of time or both would constitute
an Event of Default.
“Defaulting Lender”
shall mean any Lender with respect to which a Lender Default is in
effect.
“Designated Non-cash
Consideration” shall mean the Fair Market Value of non-cash consideration
received by the Borrower or one of its Restricted Subsidiaries in connection
with an Asset Sale that is so designated as Designated Non-cash Consideration
pursuant to an Officers’ Certificate, setting forth the basis of such valuation,
less the amount of Cash Equivalents received in connection with a subsequent
sale of such Designated Non-cash Consideration.
“Designated Preferred
Stock” shall mean Preferred Stock of the Borrower or any direct or
indirect parent of the Borrower, as applicable (other than Disqualified Stock),
that is issued for cash (other than to the Borrower or any of its Subsidiaries
or an employee stock ownership plan or trust established by the Borrower or any
of its Subsidiaries) and is so designated as Designated Preferred Stock,
pursuant to an Officers’ Certificate, on the issuance date thereof.
--
-15-
“Disqualified Stock”
shall mean, with respect to any Person, any Capital Stock of such Person which,
by its terms (or by the terms of any security into which it is convertible or
for which it is redeemable or exchangeable), or upon the happening of any
event:
(a) matures
or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise
(other than as a result of a change of control or asset sale; provided that the
relevant asset sale or change of control provisions, taken as a whole, are no
more favorable in any material respect to holders of such Capital Stock than the
asset sale and change of control provisions applicable to the Loans and any
purchase requirement triggered thereby may not become operative until compliance
with the asset sale and change of control provisions applicable to the Loans
(including the purchase of any Loans tendered pursuant thereto)),
(b) is
convertible or exchangeable for Indebtedness or Disqualified Stock of such
Person, or
(c) is
redeemable at the option of the holder thereof, in whole or in
part,
in each
case prior to 91 days after the Rollover Loan Maturity Date; provided, however, that only
the portion of Capital Stock which so matures or is mandatorily redeemable, is
so convertible or exchangeable or is so redeemable at the option of the holder
thereof prior to such date shall be deemed to be Disqualified Stock; provided, further, however, that if such
Capital Stock is issued to any employee or to any plan for the benefit of
employees of the Borrower or its Subsidiaries or by any such plan to such
employees, such Capital Stock shall not constitute Disqualified Stock solely
because it may be required to be repurchased by the Borrower in order to satisfy
applicable statutory or regulatory obligations or as a result of such employee’s
termination, death or disability; provided, further, that any
class of Capital Stock of such Person that by its terms authorizes such Person
to satisfy its obligations thereunder by delivery of Capital Stock that is not
Disqualified Stock shall not be deemed to be Disqualified Stock.
“Documentation Agent”
shall have the meaning assigned to such term in the introductory paragraph of
this Agreement.
“Dollars” or “$” shall mean the
lawful currency of the United States of America.
“Domestic Subsidiary”
shall mean any Subsidiary that is not a Foreign Subsidiary, a Qualified CFC
Holding Company or a subsidiary listed on Schedule 1.01(a).
“EBITDA” shall mean,
with respect to any Person for any period, the Consolidated Net Income of such
Person for such period plus, without duplication, to the extent the same was
deducted in calculating Consolidated Net Income:
(a) Consolidated
Taxes; plus
(b) Consolidated
Interest Expense; plus
(c) Consolidated
Non-cash Charges; plus
(d) business
optimization expenses and other restructuring charges or expenses (which, for
the avoidance of doubt, shall include, without limitation, the effect of
inventory optimization programs, plant closures, retention, systems
establishment costs and excess pension charges); provided that with
respect to each business optimization expense or other restructuring charge, the
Borrower shall have delivered to the Administrative Agent an Officers’
Certificate
--
-16-
specifying
and quantifying such expense or charge and stating that such expense or charge
is a business optimization expense or other restructuring charge, as the case
may be; plus
(e) the
amount of management, monitoring, consulting and advisory fees and related
expenses paid to the Funds or any Fund Affiliates (or any accruals relating to
such fees and related expenses) during such period pursuant to the terms of the
agreements between the Fund Affiliates and the Borrower and its
Subsidiaries;
less, without
duplication,
(f) non-cash
items increasing Consolidated Net Income for such period (excluding the
recognition of deferred revenue or any items which represent the reversal of any
accrual of, or cash reserve for, anticipated cash charges in any prior period
and any items for which cash was received in a prior period).
“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 or judgments, promulgated or entered into by
any Governmental Authority, relating in any way to the environment, preservation
or reclamation of natural resources, the generation, management, Release or
threatened Release of, or exposure to, any Hazardous Material or to occupational
health and safety matters (to the extent relating to the environment or
Hazardous Materials).
“Equity Interests”
shall mean Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or
exchangeable for, Capital Stock).
“Equity Issuance”
shall mean, without duplication, any issuance or sale by the Borrower after the
Closing Date of any Equity Interests in the Borrower or any direct or indirect
parent of the Borrower (including any Equity Interests issued upon exercise of
any warrant or option) or any warrants or options to purchase Equity Interests;
provided, however, that an
Equity Issuance shall not include (y) any sale or issuance by the Borrower
or any direct or indirect parent of the Borrower of any Equity Interests
(including its Equity Interests issued upon exercise of any warrant or option or
warrants or options to purchase its Equity Interests but excluding Disqualified
Stock), in each case, to directors, officers or employees of the Borrower or any
direct or indirect parent of the Borrower, or any of their Subsidiaries in
connection with any employee stock option plan and (z) any sale or issuance
by the Borrower or any direct or indirect parent of the Borrower of any Equity
Interests (including its Equity Interests issued upon exercise of any warrant or
option or warrants or options to purchase its Equity Interests but excluding
Disqualified Stock), to Holdings, or any Permitted Holder identified in clause
(i) of the definition thereto.
“Equity Offering”
shall mean any public or private sale after the Closing Date of common stock or
Preferred Stock of the Borrower or any direct or indirect parent of the
Borrower, as applicable (other than Disqualified Stock), other
than:
(1) public
offerings with respect to the Borrower’s or such direct or indirect parent’s
common stock registered on Form S-8; and
(2) any
such public or private sale that constitutes an Excluded
Contribution.
--
-17-
“ERISA” shall mean the
Employee Retirement Income Security Act of 1974, as the same may be amended from
time to time and any final regulations promulgated and the rulings issued
thereunder.
“ERISA Affiliate”
shall mean any trade or business (whether or not incorporated) that, together
with the 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 or the requirements of Section 4043(b) of ERISA
apply with respect to a Plan; (b) the existence with respect
to any Plan of an “accumulated funding deficiency” (as defined in
Section 412 of the 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 the Borrower, a Subsidiary or any ERISA Affiliate of any
liability under Title IV of ERISA with respect to the termination of any Plan or
Multiemployer Plan; (e) the receipt by the 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 the Borrower, a
Subsidiary or any ERISA Affiliate of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; (g) the
receipt by the Borrower, a Subsidiary or any ERISA Affiliate of any notice, or
the receipt by any Multiemployer Plan from the Borrower, a Subsidiary or any
ERISA Affiliate of any notice, concerning the impending 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; (h) the
conditions for imposition of a lien under Section 302(f) of ERISA shall have
been met with respect to any Plan; or (i) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to Section 307 of
ERISA.
“Eurocurrency
Borrowing” shall mean a Borrowing comprised of Eurocurrency
Loans.
“Eurocurrency Loan”
shall mean any Bridge Loan bearing interest at a rate determined by reference to
the Adjusted LIBO Rate in accordance with the provisions of
Article II.
“Event of Default”
shall have the meaning assigned to such term in Section 7.01.
“Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder.
“Exchange Date” shall
have the meaning assigned to such term in Section 2.01(d)(ii).
“Exchange Notes” shall
have the meaning assigned to such term in Section 2.01(d)(i).
“Exchange Notes
Indenture” shall mean the indenture to be entered into relating to the
Exchange Notes substantially in the form of Exhibit D (with such
changes to cure any ambiguity, omission, defect or inconsistency, in each case,
as the Joint Lead Arrangers and the Borrower shall agree), as the same may be
amended, modified or supplemented from time to time in accordance with the terms
thereof.
“Exchange Notice”
shall have the meaning assigned to such term in Section 2.01(d)(i).
--
-18-
“Exchange Trigger
Event” shall mean on and after the Rollover Date, (a) with respect to the
initial Exchange Trigger Event, the receipt by the Administrative Agent of one
or more Exchange Notices which, individually or together, represent at least
$100 million aggregate principal amount of Rollover Loans that have not been
exchanged for Exchange Notes and (b) thereafter (i) the receipt by the
Administrative Agent of one or more Exchange Notices which, individually or
together, represent at least $25 million aggregate principal amount of Rollover
Loans that have not been exchanged for Exchange Notes and (ii) if less than $25
million aggregate principal amount of Rollover Loans are outstanding at such
time, the remainder of the then outstanding Rollover Loans..
“Excluded
Contributions” shall mean the Cash Equivalents or other assets (valued at
their Fair Market Value as determined in good faith by senior management or the
Board of Directors of the Borrower) received by the Borrower after the Closing
Date from:
(a) contributions
to its common equity capital, and
(b) the
sale (other than to a Subsidiary of the Borrower or to any Subsidiary management
equity plan or stock option plan or any other management or employee benefit
plan or agreement) of Capital Stock (other than Disqualified Stock and
Designated Preferred Stock) of the Borrower,
in each
case designated as Excluded Contributions pursuant to an Officers’ Certificate
executed by an officer of the Borrower on or promptly after the date such
capital contributions are made or the date such Capital Stock is sold, as the
case may be.
“Excluded
Indebtedness” shall mean all Indebtedness permitted to be incurred under
Section 6.01 (other than Section 6.01(b)(xvi) and any Permanent
Financing).
“Excluded Taxes” shall
mean, with respect to the Administrative Agent, any Lender or any other
recipient of any payment to be made by or on account of any obligation of any
Loan Party hereunder, (a) any income taxes imposed on (or measured by) its net
income (or franchise taxes imposed in lieu of net income taxes) by the United
States of America (or any state or locality thereof) or 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 or any other jurisdiction as a result of such recipient engaging in a
trade or business in such jurisdiction for tax purposes, (b) any branch profits
tax or any similar tax that is imposed by any jurisdiction described in
clause (a) above, (c) in the case of a Lender making a Loan to the
Borrower, any tax (including any backup withholding tax) imposed by the United
States (or the jurisdiction under the laws of which such Lender is organized or
in which its principal office is located or in which its applicable Lending
Office is located or any other jurisdiction as a result of such Lender engaging
in a trade or business or having a taxable presence in such jurisdiction for tax
purposes) that (x) is in effect and would apply to amounts payable hereunder to
such Lender at the time such Lender becomes a party to such Loan to the Borrower
(or designates a new Lending Office) except to the extent that the assignor to
such Lender in the case of an assignment or the Lender in the case of a
designation of a new Lending Office (for the absence of doubt, other than the
Lending Office at the time such Lender becomes a party to such Loan) was
entitled, at the time of such assignment or designation of a new Lending Office,
respectively, to receive additional amounts from a Loan Party with respect to
any withholding tax pursuant to Section 2.17(a) or Section 2.17(c) or
(y) is attributable to such Lender’s failure to comply with Section 2.17(e)
or (f) with respect to such Loan and (d) any taxes that are imposed as a result
of any event occurring after the Lender becomes a Lender (other than a Change in
Law) in the case of clause (a), (b), (c) and (d), together with any and all
interest and penalties related thereto.
--
-19-
“Existing Senior Security
Agreement” shall mean the Second Amended and Restated First Lien
Guarantee and Collateral Agreement dated as of April 3, 2007 among the
Borrower, Holdings, and the Subsidiaries of the Borrower identified therein, the
Revolving Facility Collateral Agent and the Term Loan Collateral Agent as the
same may be amended, amended and restated or otherwise modified from time to
time.
“Facility” shall mean
the respective facility and commitments utilized in making Loans and credit
extensions hereunder, i.e., the Bridge
Loans and the Rollover Loans.
“Fair Market Value”
shall mean, with respect to any asset or property, the price which could be
negotiated in an arm’s-length, free market transaction, for cash, between a
willing seller and a willing and able buyer, neither of whom is under undue
pressure or compulsion to complete the transaction.
“Federal Funds Effective
Rate” shall mean, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided that (a) if
such day is not a Business Day, the Federal Funds Effective Rate for such day
shall be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Effective Rate
for such day shall be the average rate (rounded upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to Bank of America on such day on such
transactions as determined by the Administrative Agent.
“Fee Letter” shall
mean that certain Fee Letter dated December 21, 2007 by and among the Borrower,
Banc of America Bridge LLC, Banc of America Securities LLC, Xxxxxxx Xxxxx Credit
Partners L.P., Xxxxxx Commercial Paper Inc., Xxxxxx Brothers Commercial Bank and
Xxxxxx Brothers Inc.
“Fees” shall have the
meaning assigned to such term in Section 2.12(a).
“Financial Officer” of
any Person shall mean the Chief Financial Officer, principal accounting officer,
Treasurer, Assistant Treasurer or Controller of such Person.
“First Priority Lien
Obligations” shall mean (i) all Secured Bank Indebtedness, (ii) all other
Obligations (not constituting Indebtedness) of the Borrower and its Restricted
Subsidiaries under the agreements governing Secured Bank Indebtedness, (iii)
Obligations and (iv) all other obligations of the Borrower or any of its
Restricted Subsidiaries in respect of Hedging Obligations or Obligations in
respect of cash management services, in each case owing to a Person that is a
holder of Indebtedness described in clause (i) or Obligations described in
clause (ii) or an Affiliate of such holder at the time of entry into such
Hedging Obligations or Obligations in respect of cash management
services.
“Fixed Charge Coverage
Ratio” shall mean, with respect to any Person for any period, the ratio
of EBITDA of such Person for such period to the Fixed Charges of such Person for
such period. In the event that the Borrower or any of its Restricted
Subsidiaries Incurs, repays, repurchases or redeems any Indebtedness (other than
in the case of revolving credit borrowings or revolving advances under any
Qualified Receivables Financing, in which case interest expense shall be
computed based upon the average daily balance of such Indebtedness during the
applicable period) or issues, repurchases or redeems Disqualified Stock or
Preferred Stock subsequent to the commencement of the period for which the Fixed
Charge Coverage Ratio is being calculated but prior to the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the “Calculation Date”),
then the Fixed Charge Coverage Ratio shall be
--
-20-
calculated
giving pro forma effect to such Incurrence, repayment, repurchase or redemption
of Indebtedness, or such issuance, repurchase or redemption of Disqualified
Stock or Preferred Stock, as if the same had occurred at the beginning of the
applicable four-quarter period.
For
purposes of making the computation referred to above, Investments, acquisitions,
dispositions, mergers, consolidations and discontinued operations (as determined
in accordance with GAAP), in each case with respect to an operating unit of a
business, and any operational changes that the Borrower or any of its Restricted
Subsidiaries has determined to make and/or made after the Closing Date and
during the four-quarter reference period or subsequent to such reference period
and on or prior to or simultaneously with the Calculation Date (each, for
purposes of this definition, a “pro forma event”) shall be calculated on a pro
forma basis assuming that all such Investments, acquisitions, dispositions,
mergers, consolidations (including the Transactions) discontinued operations and
operational changes (and the change of any associated fixed charge obligations
and the change in EBITDA resulting therefrom) had occurred on the first day of
the four-quarter reference period. If since the beginning of such
period any Person that subsequently became a Restricted Subsidiary or was merged
with or into the Borrower or any Restricted Subsidiary since the beginning of
such period shall have made any Investment, acquisition, disposition, merger,
consolidation, discontinued operation or operational change, in each case with
respect to an operating unit of a business, that would have required adjustment
pursuant to this definition, then the Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect thereto for such period as if such
Investment, acquisition, disposition, discontinued operation, merger,
consolidation or operational change had occurred at the beginning of the
applicable four-quarter period.
For
purposes of this definition, whenever pro forma effect is to be given to any pro
forma event, the pro forma calculations shall be made in good faith by a
responsible financial or accounting officer of the Borrower. Any such
pro forma calculation may include adjustments appropriate, in the reasonable
good faith determination of the Borrower as set forth in an Officers’
Certificate, to reflect (1) operating expense reductions and other operating
improvements or synergies reasonably expected to result from the applicable pro
forma event (including, to the extent applicable, from the Transactions), and
(2) all pro forma adjustments of the nature used in similar calculations in the
Second Priority Notes Indenture (as in effect on the date hereof), including,
without limitation, as applied to the Transactions.
If any
Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest on such Indebtedness shall be calculated as if the rate in
effect on the Calculation Date had been the applicable rate for the entire
period (taking into account any Hedging Obligations applicable to such
Indebtedness if such Hedging Obligation has a remaining term in excess of 12
months). Interest on a Capitalized Lease Obligation shall be deemed
to accrue at an interest rate reasonably determined by a responsible financial
or accounting officer of the Borrower to be the rate of interest implicit in
such Capitalized Lease Obligation in accordance with GAAP. For
purposes of making the computation referred to above, interest on any
Indebtedness under a revolving credit facility computed on a pro forma basis
shall be computed based upon the average daily balance of such Indebtedness
during the applicable period. Interest on Indebtedness that may
optionally be determined at an interest rate based upon a factor of a prime or
similar rate, a eurocurrency interbank offered rate, or other rate, shall be
deemed to have been based upon the rate actually chosen, or, if none, then based
upon such optional rate chosen as the Borrower may designate.
“Fixed Charges” shall
mean, with respect to any Person for any period, the sum, without duplication,
of:
(1) Consolidated
Interest Expense of such Person for such period, and
--
-21-
(2) all
cash dividend payments (excluding items eliminated in consolidation) on any
series of Preferred Stock or Disqualified Stock of such Person and its
Restricted Subsidiaries.
“Foreign Pledge
Agreement” shall mean a pledge agreement with respect to the Pledged
Collateral that constitutes Equity Interests of a “first tier” Foreign
Subsidiary, in form and substance reasonably satisfactory to the Collateral
Agent; provided
that in no event shall more than 65% of the issued and outstanding Equity
Interests of such Foreign Subsidiary be pledged to secure Obligations of the
Borrower.
“Foreign Subsidiary”
shall mean any Restricted Subsidiary not organized or existing under the laws of
the United States of America or any state or territory thereof or the District
of Columbia and any direct or indirect subsidiary of such Restricted
Subsidiary.
“Fund Affiliates”
shall mean (i) each Affiliate of any Funds, (ii) any individual who is a partner
or employee of Apollo Management, L.P., Apollo Management IV, L.P. or Apollo
Management V, L.P., Apollo Management VI, L.P., and (iii) Xxxxxx BPC Investment
Holdings, LP.
“Fund I” shall mean
Apollo Management V, L.P. and other affiliated co-investment
partnerships.
“Fund II” shall mean
Apollo Management VI, L.P. and other affiliated co-investment partnerships and
Xxxxxx Partners Inc.
“Funds” shall mean
Fund I and Fund II, collectively.
“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; provided that any
reference to the application of GAAP in Sections 3.13(b), 3.20, 5.03 and 5.07 to
a Foreign Subsidiary (and not as a consolidated Subsidiary of the Borrower)
shall mean generally accepted accounting principles in effect from time to time
in the jurisdiction of organization of such Foreign Subsidiary.
“Governmental
Authority” shall mean any federal, state, local or foreign court or
governmental agency, authority, instrumentality or regulatory or legislative
body.
“guarantee” shall mean
a guarantee (other than by endorsement of negotiable instruments for collection
in the ordinary course of business), direct or indirect, in any manner
(including, without limitation, letters of credit and reimbursement agreements
in respect thereof), of all or any part of any Indebtedness or other
obligations.
“Guarantee” shall mean
any guarantee of the obligations of the Borrower under this Agreement by any
Person, pursuant to the Collateral Agreement.
“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 can give rise to liability under any
Environmental Law.
“Hedging Obligations”
shall mean, with respect to any Person, the obligations of such Person under (i)
currency exchange, interest rate or commodity swap agreements, currency
exchange, interest rate or commodity cap agreements and currency exchange,
interest rate or commodity collar
--
-22-
agreements,
and (ii) other agreements or arrangements designed to protect such Person
against fluctuations in currency exchange, interest rates or commodity
prices.
“Holdings” shall have
the meaning assigned to it in the recitals to this Agreement.
“Immaterial
Subsidiary” shall mean any Subsidiary that, as of the last day of the
fiscal quarter of the Borrower most recently ended, (a) did not have assets with
a value in excess of 5.0% of the Total Assets or revenues representing in excess
of 5.0% of total revenues of the Borrower and the Subsidiaries on a consolidated
basis as of such date and (b) when taken together with all other Immaterial
Subsidiaries as of such date, did not have assets with a value in excess of
10.0% of the Total Assets or revenues representing in excess of 10.0% of total
revenues of the Borrower and the Subsidiaries on a consolidated basis as of such
date. Each Immaterial Subsidiary as of the Closing Date shall be set
forth in Schedule 1.01(d).
“Incur” shall mean
issue, assume, guarantee, incur or otherwise become liable for; provided, however, that any
Indebtedness or Capital Stock of a Person existing at the time such Person
becomes a Subsidiary (whether by merger, amalgamation, consolidation,
acquisition or otherwise) shall be deemed to be Incurred by such Person at the
time it becomes a Subsidiary.
“Indebtedness” shall
mean, with respect to any Person:
(a) the
principal and premium (if any) of any indebtedness of such Person, whether or
not contingent, (i) in respect of borrowed money, (ii) evidenced by bonds,
notes, debentures or similar instruments or letters of credit or bankers’
acceptances (or, without duplication, reimbursement agreements in respect
thereof), (iii) representing the deferred and unpaid purchase price of any
property, except any such balance that constitutes a trade payable or similar
obligation to a trade creditor due within six months from the date on which it
is Incurred, in each case Incurred in the ordinary course of business, which
purchase price is due more than six months after the date of placing the
property in service or taking delivery and title thereto, (iv) in respect of
Capitalized Lease Obligations, or (v) representing any Hedging Obligations, if
and to the extent that any of the foregoing indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability on a balance sheet
(excluding the footnotes thereto) of such Person prepared in accordance with
GAAP;
(b) to
the extent not otherwise included, any obligation of such Person to be liable
for, or to pay, as obligor, guarantor or otherwise, on the Indebtedness of
another Person (other than by endorsement of negotiable instruments for
collection in the ordinary course of business);
(c) to
the extent not otherwise included, Indebtedness of another Person secured by a
Lien on any asset owned by such Person (whether or not such Indebtedness is
assumed by such Person); provided, however, that the
amount of such Indebtedness will be the lesser of: (i) the Fair Market Value of
such asset at such date of determination, and (ii) the amount of such
Indebtedness of such other Person; and
(d) to
the extent not otherwise included, with respect to the Borrower and its
Restricted Subsidiaries, the amount then outstanding (i.e., advanced, and
received by, and available for use by, the Borrower or any of its Restricted
Subsidiaries) under any Receivables Financing (as set forth in the books and
records of the Borrower or any Restricted Subsidiary and confirmed by the agent,
trustee or other representative of the institution or group providing such
Receivables Financing);
--
-23-
provided, however, that
notwithstanding the foregoing, Indebtedness shall be deemed not to include (1)
Contingent Obligations incurred in the ordinary course of business and not in
respect of borrowed money; (2) deferred or prepaid revenues; (3) purchase price
holdbacks in respect of a portion of the purchase price of an asset to satisfy
warranty or other unperformed obligations of the respective seller; (4)
Obligations under or in respect of Qualified Receivables Financing or (5)
obligations under the Acquisition Documents.
Notwithstanding
anything in this Agreement to the contrary, Indebtedness shall not include, and
shall be calculated without giving effect to, the effects of Statement of
Financial Accounting Standards No. 133 and related interpretations to the extent
such effects would otherwise increase or decrease an amount of Indebtedness for
any purpose under this Agreement as a result of accounting for any embedded
derivatives created by the terms of such Indebtedness; and any such amounts that
would have constituted Indebtedness under this Agreement but for the application
of this sentence shall not be deemed an Incurrence of Indebtedness under this
Agreement.
“Indemnified Taxes”
shall mean all Taxes other than Excluded Taxes.
“Indemnitee” shall
have the meaning assigned to such term in Section 9.05(b).
“Independent Financial
Advisor” shall mean an accounting, appraisal or investment banking firm
or consultant, in each case of nationally recognized standing, that is, in the
good faith determination of the Borrower, qualified to perform the task for
which it has been engaged.
“Ineligible
Institution” shall mean the Persons identified in writing to the
Administrative Agent by the Borrower on the Closing Date, and as may be
identified in writing to the Administrative Agent by the Borrower from time to
time thereafter with the consent of the Administrative Agent (not to be
unreasonably withheld or delayed), by delivery of a notice thereof to the
Administrative Agent setting forth such Person or Persons (or the Person or
Persons previously identified to the Administrative Agent that are to be no
longer considered “Ineligible Institutions”).
“Information” shall
have the meaning assigned to such term in Section 3.14(a).
“Intellectual Property
Rights” shall have the meaning assigned to such term in Section
3.23.
“Intercreditor
Agreements” shall mean the Senior Lender Intercreditor Agreement, the
Second Priority Intercreditor Agreement and the Senior Fixed Lender
Intercreditor Agreement.
“Interest Election
Request” shall mean a request by the Borrower to convert or continue a
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 Capitalized Lease
Obligations allocable to interest expense, and (iv) net payments and receipts
(if any) pursuant to interest rate Hedging Obligations, (b) capitalized interest
of such Person, and (c) commissions, discounts, yield and other fees and charges
incurred in connection with any Qualified Receivables Financing which are
payable to any Person other
--
-24-
than the
Borrower or a Subsidiary Loan Party. For purposes of the foregoing,
gross interest expense shall be determined after giving effect to any net
payments made or received and costs incurred by the Borrower and the
Subsidiaries with respect to Swap Agreements.
“Interest Payment
Date” shall mean, (a) with respect to any Eurocurrency Loan, the last day
of each Interest Period applicable to the Borrowing of which such Loan is a part
and, in addition, the date of any refinancing or conversion of such Borrowing
with or to a Borrowing of a different Type, and (b) with respect to any ABR
Loan, the last Business Day of each calendar quarter and, in addition, the date
of any conversion of such Borrowing with or to a Borrowing of a different Type
in accordance with Article II.
“Interest Period”
shall mean, 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 or 3 months thereafter, or
the date any Eurocurrency Borrowing is converted to an ABR Borrowing in
accordance with Section 2.07, 2.14 or 2.20 or repaid or prepaid in
accordance with Section 2.10 or 2.11; 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.
“Investment Bank”
shall mean one or more investment banks engaged to publicly sell or privately
place the Permanent Financing reasonably acceptable to the Joint Lead
Arrangers.
“Investment Grade
Rating” shall mean a rating equal to or higher than Baa3 (or the
equivalent) by Xxxxx’x and BBB- (or the equivalent) by S&P, or an equivalent
rating by any other Rating Agency.
“Investment Grade
Securities” shall mean:
(a) securities
issued or directly and fully guaranteed or insured by the U.S. government or any
agency or instrumentality thereof (other than Cash Equivalents),
(b) securities
that have a rating equal to or higher than Baa3 (or equivalent) by Xxxxx’x or
BBB- (or equivalent) by S&P, or an equivalent rating by any other Rating
Agency, but excluding any debt securities or loans or advances between and among
the Borrower and its Subsidiaries;
(c) investments
in any fund that invests exclusively in investments of the type described in
clauses (a) and (b) which fund may also hold immaterial amounts of cash pending
investment and/or distribution, and
(d) corresponding
instruments in countries other than the United States customarily utilized for
high quality investments and in each case with maturities not exceeding two
years from the date of acquisition.
“Investments” shall
mean, with respect to any Person, all investments by such Person in other
Persons (including Affiliates) in the form of loans (including guarantees),
advances or capital contributions (excluding accounts receivable, trade credit
and advances to customers and commission, travel
--
-25-
and
similar advances to officers, employees and consultants made in the ordinary
course of business), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities issued by any other Person
and investments that are required by GAAP to be classified on the balance sheet
of the Borrower in the same manner as the other investments included in this
definition to the extent such transactions involve the transfer of cash or other
property. For purposes of the definition of “Unrestricted Subsidiary”
and Section 6.04:
(a) “Investments”
shall include the portion (proportionate to the Borrower’s equity interest in
such Subsidiary) of the Fair Market Value of the net assets of a Subsidiary of
the Borrower at the time that such Subsidiary is designated an Unrestricted
Subsidiary; provided, however, that upon a
redesignation of such Subsidiary as a Restricted Subsidiary, the Borrower shall
be deemed to continue to have a permanent “Investment” in an Unrestricted
Subsidiary equal to an amount (if positive) equal to:
(i)the Borrower’s “Investment” in such
Subsidiary at the time of such redesignation less
(ii)the portion (proportionate to the
Borrower’s equity interest in such Subsidiary) of the Fair Market Value of the
net assets of such Subsidiary at the time of such redesignation;
and
(b) any
property transferred to or from an Unrestricted Subsidiary shall be valued at
its Fair Market Value at the time of such transfer, in each case as determined
in good faith by the Board of Directors of the Borrower.
“Joint Lead Arrangers”
shall mean Banc of America Securities LLC and Xxxxxxx Xxxxx Credit Partners
L.P., in their capacities as joint lead arrangers.
“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, or (ii) a Lender having notified the
Borrower and/or the Administrative Agent that it does not intend to comply with
its obligations under Section 2.06.
“Lending Office” shall
mean, as to any Lender, the applicable branch, office or Affiliate of such
Lender designated by such Lender to make Loans.
“Letter of Credit”
shall mean any letter of credit issued pursuant to the Revolving Credit
Agreement.
“LIBOR Rate” shall
mean, with respect to any Eurocurrency Borrowing for any Interest Period, the
rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as
published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time to
time) at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for Dollar deposits (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest
Period; provided, that if
such rate is not available at such time for any reason, then the “LIBO Rate” for
such Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery on
the first day of such Interest Period in same day funds in the approximate
amount of the Eurocurrency Loan being made, continued or converted by Bank of
America and with a term equivalent
--
-26-
to such
Interest Period would be offered by Bank of America’s London Branch to major
banks in the London interbank eurocurrency market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
“Lien” shall mean,
with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed,
recorded or otherwise perfected under applicable law (including any conditional
sale or other title retention agreement, any lease in the nature thereof, any
option or other agreement to sell or give a security interest in and any filing
of or agreement to give any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction); provided that in no
event shall an operating lease be deemed to constitute a Lien.
“Loan Documents” shall
mean this Agreement, the Security Documents, the Senior Lender Intercreditor
Agreement, the Second Priority Intercreditor Agreement, the Senior Fixed Lender
Intercreditor Agreement and any Note issued under Section 2.09(e), each
other agreement or instrument delivered pursuant to Section 5.10 hereof and,
solely for the purposes of Article IV and Section 7.01 hereof, the Fee
Letter.
“Loan Parties” shall
mean the Borrower and the Subsidiary Loan Parties.
“Loans” shall mean the
Bridge Loans and the Rollover Loans.
“Local Time” shall
mean New York City time.
“Management Group”
shall mean the group consisting of the directors, executive officers and other
management personnel of the Borrower or any direct or indirect parent of the
Borrower, 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 Borrower or any direct or indirect parent of
the Borrower, as applicable, was approved by a vote of a majority of the
directors of the Borrower or any direct or indirect parent of the Borrower, as
applicable, 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 Borrower or any direct or
indirect parent of the Borrower, as applicable, 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 Borrower or any direct or
indirect parent of the Borrower, as applicable.
“Margin Stock” shall
have the meaning assigned to such term in Regulation U.
“Material Adverse
Effect” shall mean a material adverse effect on the business, property,
operations or condition of the Borrower and its Subsidiaries, taken as a whole,
or the validity or enforceability of any of the material Loan Documents or the
rights and remedies of the Administrative Agent and the Lenders
thereunder.
“Material
Indebtedness” shall mean Indebtedness (other than Loans) of any one or
more of the Borrower or any Subsidiary in an aggregate principal amount
exceeding $35 million.
“Material Subsidiary”
shall mean any Subsidiary other than an Immaterial Subsidiary.
“Maximum Rate” shall
have the meaning assigned to such term in Section 9.09.
--
-27-
“Moody’s” shall mean
Xxxxx’x Investors Service, Inc. or any successor to the rating agency business
thereof.
“Mortgaged Properties”
shall mean the Real Properties owned in fee by the Loan Parties required to be
encumbered by a Mortgage pursuant to Section 5.01 of the Collateral Agreement
and each additional Real Property encumbered by a Mortgage pursuant to
Section 5.10.
“Mortgages” shall mean
the mortgages, trust deeds, deeds of trust, deeds to secure debt, assignments of
leases and rents, and other security documents delivered with respect to
Mortgaged Properties, each in form and substance reasonably satisfactory to the
Administrative Agent and the Borrower, as amended, supplemented or otherwise
modified from time to time. For the avoidance of doubt, Mortgages may
include mortgages delivered under the Term Loan Credit Agreement to the extent
amended to be in a form otherwise satisfactory to the Administrative
Agent.
“Multiemployer Plan”
shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA
to which the Borrower or any Subsidiary 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 GAAP and before any reduction in respect of
Preferred Stock dividends.
“Net Proceeds” shall
mean:
(a) 100%
of the cash proceeds actually received by the Borrower or any Subsidiary Loan
Party (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 Asset Sale
(other than, for the avoidance of doubt, any Asset Sale pursuant to Section
6.05(a), (b), (c) and (d) of the Term Loan Credit Agreement as in effect on the
date hereof, except as contemplated by Section 6.03(b)(ii), (e), (f), (h), (i)
or (j) of the Term Loan Credit Agreement as in effect on the date hereof), 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 to the
extent such debt or obligations are secured by a Lien permitted hereunder (other
than pursuant to the Loan Documents or the Revolving Loan Documents) on such
asset, other customary expenses and brokerage, consultant and other customary
fees actually incurred in connection therewith, (ii) Taxes paid or payable as a
result thereof, and (iii) the amount of any reasonable reserve established in
accordance with GAAP against any adjustment to the sale price or any liabilities
(other than any taxes deducted pursuant to clause (i) above) (x) related to any
of the applicable assets and (y) retained by the Borrower or any of the
Subsidiaries including, without limitation, pension and other post-employment
benefit liabilities and liabilities related to environmental matters or against
any indemnification obligations (however, the amount of any subsequent reduction
of such reserve (other than in connection with a payment in respect of any such
liability) shall be deemed to be Net Proceeds of such Asset Sale occurring on
the date of such reduction); provided that, if no
Event of Default exists and the Borrower shall deliver a certificate of a
Responsible Officer of the Borrower to the Administrative Agent promptly
following receipt of any such proceeds setting forth the Borrower’s intention to
use any portion of such proceeds, to acquire, maintain, develop,
--
-28-
construct,
improve, upgrade or repair assets useful in the business of the Borrower and the
Subsidiaries or to make Investments in Permitted Business Acquisitions (as
defined in the Term Loan Credit Agreement as in effect on the date hereof) , in
each case within 15 months of such receipt, such portion of such proceeds shall
not constitute Net Proceeds except to the extent not, within 15 months of such
receipt, so used or contractually committed to be so used (it being understood
that if any portion of such proceeds are not so used within such 15-month period
but within such 15-month period are contractually committed to be used, then,
upon the termination of such contract, such remaining portion shall constitute
Net Proceeds as of the date of such termination or expiry without giving effect
to this proviso); provided, further, that (A) no
proceeds realized in a single transaction or series of related transactions
shall constitute Net Proceeds unless such proceeds shall exceed $5.0 million,
(B) no proceeds shall constitute Net Proceeds in any fiscal year until the
aggregate amount of all such proceeds in such fiscal year shall exceed
$10.0 million, (C)
at any time during the 15-month period contemplated by the immediately preceding
proviso above, if, on a Pro Forma Basis (as defined in the Term Loan Credit
Agreement as in effect on the date hereof) after giving effect to the Asset Sale
and the application of the proceeds thereof, the Total Net First Lien Leverage
Ratio (as defined in the Term Loan Credit Agreement as in effect on the date
hereof) is less than or equal to 2.00 to 1.00, up to $75 million of such
proceeds shall not constitute Net Proceeds, (D) proceeds from any Asset Sale
shall not constitute Net Proceeds to the extent that the Term Loan Credit
Agreement requires that such proceeds be applied in payment of any obligations
thereunder (and such requirement is not waived by the Lenders thereunder), and
(E) proceeds from the sale or other disposition of any ABL Assets (including any
indirect sale or other disposition occurring by reason of the indirect sale or
other disposition of the Person that holds such ABL Assets) shall not constitute
Net Proceeds to the extent that the Revolving Credit Agreement requires that
such proceeds be applied in payment of any obligations thereunder (and such
requirement is not waived by the Lenders thereunder);
(b) 100%
of the cash proceeds from the incurrence, issuance or sale by the Borrower or
any Subsidiary Loan Party 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) 100%
of the cash proceeds from the incurrence, issuance or sale by the Borrower of
any Equity Issuance, 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 the Borrower or any Affiliate of the Borrower
shall be disregarded, except for financial advisory fees customary in type and
amount paid to Affiliates of the Funds and otherwise not prohibited from being
paid hereunder.
“New York Courts”
shall have the meaning assigned to such term in Section 9.15.
“Non-Consenting
Lender” shall have the meaning assigned to such term in
Section 2.19(c).
“Notes” shall mean,
collectively, Bridge Notes and Rollover Notes.
“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.
--
-29-
“Offering Document”
shall have the meaning assigned to such term in Section 5.12(d).
“Officer” shall mean
the Chairman of the Board of Directors, Chief Executive Officer, Chief Financial
Officer, President, any Executive Vice President, Senior Vice President or Vice
President, the Treasurer or the Secretary of the Borrower.
“Officers’
Certificate” shall mean a certificate signed on behalf of the Borrower by
two Officers of the Borrower, one of whom must be the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Borrower that meets the requirements set forth in this
Agreement.
“OID” shall have the
meaning assigned to such term in Section 5.12(b).
“Opinion of Counsel”
shall mean a written opinion from legal counsel who is acceptable to the
Administrative Agent. The counsel may be an employee of or counsel to
the Borrower or the Administrative Agent.
“Other Taxes” shall
mean any and all present or future stamp or documentary taxes or any other
excise, transfer, sales, property, intangible, mortgage recording, or similar
taxes, charges or 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 (but not
Excluded Taxes).
“Parent Entity” shall
mean any direct or indirect parent of Holdings.
“Participant” shall
have the meaning assigned to such term in Section 9.04(c).
“PBGC” shall mean the
Pension Benefit Guaranty Corporation referred to and defined in
ERISA.
“Perfection
Certificate” shall mean the Perfection Certificate with respect to the
Borrower and the other Loan Parties in a form reasonably satisfactory to the
Administrative Agent.
“Permanent Financing”
shall mean first priority senior secured debt of the Borrower issued pursuant to
Section 5.12 hereof and guaranteed by the Subsidiary Loan Parties, which may
take the form of loans or debt securities or a combination thereof, that will
provide proceeds in an amount sufficient to repay all or any portion then
outstanding of the principal and other amounts under the Bridge Loans; provided,
that there shall be no more than two series (plus any exchange securities) of
any such Permanent Financing.
“Permanent Financing
Offering” shall have the meaning assigned to such term in Section
5.12(a).
“Permitted Holders”
shall mean, at any time, each of (i) the Funds and the Fund Affiliates and (ii)
the Management Group. Any Person or group whose acquisition of
beneficial ownership constitutes a Change of Control in respect of which a
Change of Control Offer is made in accordance with the requirements of this
Agreement will thereafter, together with its Affiliates, constitute an
additional Permitted Holder.
--
-30-
“Permitted
Investments” shall mean:
(a) any
Investment in the Borrower or any Restricted Subsidiary;
(b) any
Investment in Cash Equivalents or Investment Grade Securities;
(c) any
Investment by the Borrower or any Restricted Subsidiary of the Borrower in a
Person if as a result of such Investment (i) such Person becomes a Restricted
Subsidiary of the Borrower, or (ii) such Person, in one transaction or a series
of related transactions, is merged, consolidated or amalgamated with or into, or
transfers or conveys all or substantially all of its assets to, or is liquidated
into, the Borrower or a Restricted Subsidiary of the Borrower;
(d) any
Investment in securities or other assets not constituting Cash Equivalents and
received in connection with an Asset Sale made pursuant to the provisions of
Section 6.03 or any other disposition of assets not constituting an Asset
Sale;
(e) any
Investment existing on, or made pursuant to binding commitments existing on, the
Closing Date;
(f) advances
to employees, taken together with all other advances made pursuant to this
clause (f), not to exceed $15.0 million at any one time
outstanding;
(g) any
Investment acquired by the Borrower or any of its Restricted Subsidiaries (i) in
exchange for any other Investment or accounts receivable held by the Borrower or
any such Restricted Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the issuer of such
other Investment or accounts receivable, or (ii) as a result of a foreclosure by
the Borrower or any of its Restricted Subsidiaries with respect to any secured
Investment or other transfer of title with respect to any secured Investment in
default;
(h) Hedging
Obligations permitted under Section 6.01(b)(x);
(i) any
Investment by the Borrower or any of its Restricted Subsidiaries in a Similar
Business having an aggregate Fair Market Value, taken together with all other
Investments made pursuant to this clause (i) that are at that time outstanding,
not to exceed the greater of (x) $100.0 million and (y) 4.5% of Total Assets at
the time of such Investment (with the Fair Market Value of each Investment being
measured at the time made and without giving effect to subsequent changes in
value); provided, however, that if any
Investment pursuant to this clause (i) is made in any Person that is not a
Restricted Subsidiary of the Borrower at the date of the making of such
Investment and such Person becomes a Restricted Subsidiary of the Borrower after
such date, such Investment shall thereafter be deemed to have been made pursuant
to clause (a) above and shall cease to have been made pursuant to this clause
(i) for so long as such Person continues to be a Restricted
Subsidiary;
(j) additional
Investments by the Borrower or any of its Restricted Subsidiaries having an
aggregate Fair Market Value, taken together with all other Investments made
pursuant to this clause (j) that are at that time outstanding, not to exceed the
greater of (x) $100.0 million and (y) 4.5% of Total Assets at the time of such
Investment (with the Fair Market Value of each Investment being measured at the
time made and without giving effect to subsequent changes in
value);
--
-31-
(k) loans
and advances to officers, directors and employees for business-related travel
expenses, moving expenses and other similar expenses, in each case Incurred in
the ordinary course of business;
(l) Investments
the payment for which consists of Equity Interests of the Borrower (other than
Disqualified Stock) or any direct or indirect parent of the Borrower, as
applicable; provided, however, that such
Equity Interests will not increase the amount available for Restricted Payments
under clause (C) of the definition of “Cumulative Credit”;
(m) any
transaction to the extent it constitutes an Investment that is permitted by and
made in accordance with the provisions of Section 6.07(b) (except transactions
described in clauses (ii), (vi), (vii) and (xi)(B) of such
Section);
(n) Investments
consisting of the licensing or contribution of intellectual property pursuant to
joint marketing arrangements with other Persons;
(o) guarantees
issued in accordance with Section 6.01;
(p) Investments
consisting of or to finance purchases and acquisitions of inventory, supplies,
materials, services or equipment or purchases of contract rights or licenses or
leases of intellectual property, in each case in the ordinary course of
business;
(q) any
Investment in a Receivables Subsidiary or any Investment by a Receivables
Subsidiary in any other Person in connection with a Qualified Receivables
Financing, including Investments of funds held in accounts permitted or required
by the arrangements governing such Qualified Receivables Financing or any
related Indebtedness; provided, however, that any
Investment in a Receivables Subsidiary is in the form of a Purchase Money Note,
contribution of additional receivables or an equity interest;
(r) additional
Investments in joint ventures of the Borrower or any of its Restricted
Subsidiaries existing on the Closing Date not to exceed at any one time in the
aggregate outstanding, $15.0 million; and
(s) Investments
of a Restricted Subsidiary of the Borrower acquired after the Closing Date or of
an entity merged into, amalgamated with, or consolidated with the Borrower or a
Restricted Subsidiary of the Borrower in a transaction that is not prohibited by
Section 6.05 after the Closing Date to the extent that such Investments were not
made in contemplation of such acquisition, merger, amalgamation or consolidation
and were in existence on the date of such acquisition, merger, amalgamation or
consolidation.
“Permitted Liens”
shall mean, with respect to any Person:
(a) pledges
or deposits by such Person under workmen’s compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection with
bids, tenders, contracts (other than for the payment of Indebtedness) or leases
to which such Person is a party, or deposits to secure public or statutory
obligations of such Person or deposits of cash or U.S. government bonds to
secure surety or appeal bonds to which such Person is a party, or deposits as
security for contested taxes or import duties or for the payment of rent, in
each case Incurred in the ordinary course of business;
--
-32-
(b) Liens
imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens, in each
case for sums not yet due or being contested in good faith by appropriate
proceedings or other Liens arising out of judgments or awards against such
Person with respect to which such Person shall then be proceeding with an appeal
or other proceedings for review;
(c) Liens
for taxes, assessments or other governmental charges not yet due or payable or
subject to penalties for nonpayment or which are being contested in good faith
by appropriate proceedings;
(d) Liens
in favor of issuers of performance and surety bonds or bid bonds or with respect
to other regulatory requirements or letters of credit issued pursuant to the
request of and for the account of such Person in the ordinary course of its
business;
(e) minor
survey exceptions, minor encumbrances, easements or reservations of, or rights
of others for, licenses, rights-of-way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions as
to the use of real properties or Liens incidental to the conduct of the business
of such Person or to the ownership of its properties which were not Incurred in
connection with Indebtedness and which do not in the aggregate materially
adversely affect the value of said properties or materially impair their use in
the operation of the business of such Person;
(f) (A)
Liens on assets of a Restricted Subsidiary that is not a Loan Party securing
Indebtedness of such Restricted Subsidiary, permitted to be Incurred pursuant to
Section 6.01, (B) Liens securing an aggregate principal amount of First Priority
Lien Obligations not to exceed the greater of (x) the aggregate amount of
Indebtedness permitted to be incurred pursuant to clause (i) of Section 6.01(b)
and (y) the maximum principal amount of Indebtedness that, as of the date such
Indebtedness was Incurred, and after giving effect to the Incurrence of such
Indebtedness and the application of proceeds therefrom on such date, would not
cause the Secured Indebtedness Leverage Ratio of the Borrower to exceed 4.00 to
1.00, and (C) Liens securing Indebtedness permitted to be Incurred pursuant to
clause (iv), (xii) or (xx) of Section 6.01(b) (provided that in the
case of clause (xx), such Lien does not extend to the property or assets of any
Subsidiary of the Borrower other than a Foreign Subsidiary);
(g) Liens
existing on the Closing Date (including after giving effect to the
Transactions);
(h) Liens
on assets, property or shares of stock of a Person at the time such Person
becomes a Subsidiary; provided, however, that such
Liens are not created or Incurred in connection with, or in contemplation of,
such other Person becoming such a Subsidiary; provided, further, however, that such
Liens may not extend to any other property owned by the Borrower or any
Restricted Subsidiary of the Borrower);
(i) Liens
on assets or property at the time the Borrower or a Restricted Subsidiary of the
Borrower acquired the assets or property, including any acquisition by means of
a merger, amalgamation or consolidation with or into the Borrower or any
Restricted Subsidiary of the Borrower; provided, however, that such
Liens are not created or Incurred in connection with, or in contemplation of,
such acquisition; provided, further, however, that the
Liens may not extend to any other property owned by the Borrower or any
Restricted Subsidiary of the Borrower;
--
-33-
(j) Liens
securing Indebtedness or other obligations of a Restricted Subsidiary owing to
the Borrower or another Restricted Subsidiary of the Borrower permitted to be
Incurred in accordance with Section 6.01;
(k) Liens
securing Hedging Obligations not incurred in violation of this Agreement; provided that with
respect to Hedging Obligations relating to Indebtedness, such Lien extends only
to the property securing such Indebtedness;
(l) Liens
on specific items of inventory or other goods and proceeds of any Person
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;
(m) leases
and subleases of real property which do not materially interfere with the
ordinary conduct of the business of the Borrower or any of its Restricted
Subsidiaries;
(n) Liens
arising from Uniform Commercial Code financing statement filings regarding
operating leases entered into by the Borrower and its Restricted Subsidiaries in
the ordinary course of business;
(o) Liens
in favor of the Borrower or any Subsidiary Loan Party;
(p) Liens
on accounts receivable and related assets of the type specified in the
definition of “Receivables Financing” Incurred in connection with a Qualified
Receivables Financing;
(q) deposits
made in the ordinary course of business to secure liability to insurance
carriers;
(x) Liens
on the Equity Interests of Unrestricted Subsidiaries;
(y) grants
of software and other technology licenses in the ordinary course of
business;
(z) Liens
to secure any refinancing, refunding, extension, renewal or replacement (or
successive refinancings, refundings, extensions, renewals or replacements) as a
whole, or in part, of any Indebtedness secured by any Lien referred to in the
foregoing clauses (f)(B), (g), (h), (i), (j), (k) and (o); provided, however, that (x)
such new Lien shall be limited to all or part of the same property that secured
the original Lien (plus improvements on such property), and (y) the Indebtedness
secured by such Lien at such time is not increased to any amount greater than
the sum of (A) the outstanding principal amount or, if greater, committed amount
of the Indebtedness described under clauses (f)(B), (g), (h), (i), (j), (k) and
(o) at the time the original Lien became a Permitted Lien under this Agreement,
and (B) an amount necessary to pay any fees and expenses, including premiums,
related to such refinancing, refunding, extension, renewal or replacement; provided further, however, that in the
case of any Liens to secure any refinancing, refunding, extension or renewal of
Indebtedness secured by a Lien referred to in clause (f)(B), the principal
amount of any Indebtedness Incurred for such refinancing, refunding, extension
or renewal shall be deemed secured by a Lien under clause (f)(B) and not this
clause (z) for purposes of determining the principal amount of Indebtedness
outstanding under clause (f)(B), for purposes of the definition of Secured Bank
Indebtedness;
(aa) Liens
on equipment of the Borrower or any Restricted Subsidiary granted in the
ordinary course of business to the Borrower’s or such Restricted Subsidiary’s
client at which such equipment is located;
(bb) judgment
and attachment Liens not giving rise to an Event of Default and notices of lis
pendens and associated rights related to litigation being contested in good
faith by appropriate proceedings and for which adequate reserves have been
made;
-34-
(cc) Liens
arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into in the ordinary course of
business;
(dd) Liens
incurred to secure cash management services in the ordinary course of
business;
(ee) other
Liens securing obligations incurred in the ordinary course of business which
obligations do not exceed $20.0 million at any one time
outstanding;
(ff) Liens
securing Indebtedness or other obligations permitted to be Incurred in
accordance with Section 6.01(b)(ii); and
(gg) Liens
on the Collateral in favor of any collateral agent relating to such collateral
agent’s administrative expenses with respect to the Collateral.
“Person” shall mean
any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other
entity.
“Plan” shall mean any
employee pension benefit plan, as such term is defined in Section 3(2) of ERISA,
(other than a Multiemployer Plan), (i) subject to the provisions of Title IV of
ERISA, (ii) sponsored or maintained (at the time of determination or at any time
within the five years prior thereto) by the Borrower or any ERISA Affiliate, or
(iii) in respect of which the Borrower, any Subsidiary 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.
“Platform” shall have
the meaning assigned to such term in Section 9.17.
“Pledged Collateral”
shall have the meaning assigned to such term in the Collateral
Agreement.
“Possessory Collateral
Agent” shall have the meaning assigned to such term in the Senior Lender
Collateral Agreement.
“Preferred Stock”
shall mean any Equity Interest with preferential right of payment of dividends
or upon liquidation, dissolution, or winding up.
“Pro Forma Adjusted
EBITDA” shall have the meaning assigned to such term in
Section 3.05(a).
“Pro Forma Financial
Statements” shall have the meaning assigned to such term in
Section 3.05(a).
“Projections” shall
mean the projections of the Borrower and the Subsidiaries 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 the Borrower or any of the Subsidiaries
prior to the Closing Date.
“Public Lender” shall
have the meaning assigned to such term in Section 9.17.
-35-
“Purchase Money Note”
shall mean a promissory note of a Receivables Subsidiary evidencing a line of
credit, which may be irrevocable, from the Borrower or any Subsidiary of the
Borrower to a Receivables Subsidiary in connection with a Qualified Receivables
Financing, which note is intended to finance that portion of the purchase price
that is not paid by cash or a contribution of equity.
“Qualified CFC Holding
Company” shall mean a Wholly Owned Subsidiary of the Borrower that is a
limited liability company, the primary asset of which consists of Equity
Interests in either (i) a Foreign Subsidiary or (ii) a limited
liability company the primary asset of which consists of Equity Interests in a
Foreign Subsidiary.
“Qualified Receivables
Financing” shall mean any Receivables Financing of a Receivables
Subsidiary that meets the following conditions:
(a) the
Board of Directors of the Borrower shall have determined in good faith that such
Qualified Receivables Financing (including financing terms, covenants,
termination events and other provisions) is in the aggregate economically fair
and reasonable to the Borrower and the Receivables Subsidiary;
(b) all
sales of accounts receivable and related assets to the Receivables Subsidiary
are made at Fair Market Value (as determined in good faith by the Borrower);
and
(c) the
financing terms, covenants, termination events and other provisions thereof
shall be market terms (as determined in good faith by the Borrower) and may
include Standard Securitization Undertakings.
The grant
of a security interest in any accounts receivable of the Borrower or any of its
Restricted Subsidiaries (other than a Receivables Subsidiary) to secure Bank
Indebtedness, Indebtedness in respect of the Loans or any Refinancing
Indebtedness with respect to the Loans shall not be deemed a Qualified
Receivables Financing.
“Rate Cap” shall mean,
with respect to Eurocurrency Loans, the Adjusted LIBO Rate in effect from time
to time plus 5.25% per annum, and with respect to Base Rate Loans, ABR as in
effect from time to time plus 4.25% per annum.
“Rating Agency” shall
mean (1) each of Xxxxx’x and S&P and (2) if Xxxxx’x or S&P ceases to
rate the Loans for reasons outside of the Borrower’s control, a “nationally
recognized statistical rating organization” within the meaning of Rule
15cs-1(c)(2)(vi)(F) under the Exchange Act selected by the Borrower or any
direct or indirect parent of the Borrower as a replacement agency for Xxxxx’x or
S&P, as the case may be.
“Real Property” shall
mean, collectively, all right, title and interest (including any leasehold
estate) in and to any and all parcels of or interests in real property owned in
fee or leased by any Loan Party, together with, in each case, all easements,
hereditaments and appurtenances relating thereto, all improvements and
appurtenant fixtures incidental to the ownership or lease thereof.
“Receivables Fees”
shall mean distributions or payments made directly or by means of discounts with
respect to any participation interests issued or sold in connection with, and
all other fees paid to a Person that is not a Restricted Subsidiary in
connection with, any Receivables Financing.
“Receivables
Financing” shall mean any transaction or series of transactions that may
be entered into by the Borrower or any of its Subsidiaries pursuant to which the
Borrower or any of its Subsidiaries may sell, convey or otherwise transfer to
(a) a Receivables Subsidiary (in the case of a transfer by the Borrower or any
of its Subsidiaries); and (b) any other Person (in the case of a transfer by a
Receivables Subsidiary), or may grant a security interest in, any accounts
receivable (whether now existing or arising in the future) of the Borrower or
any of its Subsidiaries, and any assets related thereto including, without
limitation, all collateral securing such accounts receivable, all contracts and
all guarantees or other obligations in respect of such accounts receivable,
proceeds of such accounts receivable and other assets which are customarily
transferred or in respect of which security interests are customarily granted in
connection with asset securitization transactions involving accounts receivable
and any Hedging Obligations entered into by the Borrower or any such Subsidiary
in connection with such accounts receivable.
-36-
“Receivables Repurchase
Obligation” shall mean any obligation of a seller of receivables in a
Qualified Receivables Financing to repurchase receivables arising as a result of
a breach of a representation, warranty or covenant or otherwise, including as a
result of a receivable or portion thereof becoming subject to any asserted
defense, dispute, off-set or counterclaim of any kind as a result of any action
taken by, any failure to take action by or any other event relating to the
seller.
“Receivables
Subsidiary” shall mean a Wholly Owned Restricted Subsidiary of the
Borrower (or another Person formed for the purposes of engaging in Qualified
Receivables Financing with the Borrower in which the Borrower or any Subsidiary
of the Borrower makes an Investment and to which the Borrower or any Subsidiary
of the Borrower transfers accounts receivable and related assets) which engages
in no activities other than in connection with the financing of accounts
receivable of the Borrower and its Subsidiaries, all proceeds thereof and all
rights (contractual or other), collateral and other assets relating thereto, and
any business or activities incidental or related to such business, and which is
designated by the Board of Directors of the Borrower (as provided below) as a
Receivables Subsidiary and:
(a) no
portion of the Indebtedness or any other obligations (contingent or otherwise)
of which (i) is guaranteed by the Borrower or any other Subsidiary of the
Borrower (excluding guarantees of obligations (other than the principal of and
interest on, Indebtedness) pursuant to Standard Securitization Undertakings),
(ii) is recourse to or obligates the Borrower or any other Subsidiary of the
Borrower in any way other than pursuant to Standard Securitization Undertakings,
or (iii) subjects any property or asset of the Borrower or any other Subsidiary
of the Borrower, directly or indirectly, contingently or otherwise, to the
satisfaction thereof, other than pursuant to Standard Securitization
Undertakings;
(b) with
which neither the Borrower nor any other Subsidiary of the Borrower has any
material contract, agreement, arrangement or understanding other than on terms
which the Borrower reasonably believes to be no less favorable to the Borrower
or such Subsidiary than those that might be obtained at the time from Persons
that are not Affiliates of the Borrower; and
(c) to
which neither the Borrower nor any other Subsidiary of the Borrower has any
obligation to maintain or preserve such entity’s financial condition or cause
such entity to achieve certain levels of operating results.
Any such
designation by the Board of Directors of the Borrower shall be evidenced to the
Administrative Agent by filing with the Administrative Agent a certified copy of
the resolution of the Board of Directors of the Borrower giving effect to such
designation and an Officers’ Certificate certifying that such designation
complied with the foregoing conditions.
“Reference Period”
shall have the meaning assigned to such term in the definition of “Cumulative
Credit” contained in Section 1.01.
-37-
“Refinancing
Indebtedness” shall have the meaning assigned to such term in Section
6.01(b)(xiv).
“Refunding Capital
Stock” shall have the meaning assigned to such term in Section
6.04(b)(ii).
“Register” shall have
the meaning assigned to such term in Section 9.04(b)(iv).
“Registration Rights
Agreement” shall mean the Registration Rights Agreements substantially in
the form of Exhibit
G (with such changes to cure ambiguity, omission, defect or inconsistency
as the Joint Lead Arrangers and the Borrower shall approve), as may be amended,
modified or supplemented in accordance with the terms thereof.
“Registration
Statement” shall have the meaning assigned to such term in Section
5.12(c).
“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 Fund” shall
mean, with respect to any Lender that is a fund that invests in bank or
commercial loans and similar extensions of credit, any other fund that invests
in bank or commercial loans and similar extensions of credit and is advised or
managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity (or
an Affiliate of such entity) that administers, advises or manages such
Lender.
“Related Parties”
shall mean, with respect to any specified Person, such Person’s Affiliates and
the respective directors, trustees, 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.
“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).
“Required Lenders”
shall mean, at any time, Lenders having Loans outstanding that represent more
than 50% of all Loans outstanding. The Loans of any Defaulting Lender
shall be disregarded in determining Required Lenders at any time.
“Responsible Officer”
of any Person shall mean any executive officer or Financial Officer of such
Person and any other officer or similar official thereof responsible for the
administration of the obligations of such Person in respect of this
Agreement.
“Restricted
Investment” shall mean an Investment other than a Permitted
Investment.
-38-
“Restricted Payment”
shall have the meaning assigned to such term in Section 6.04(a).
“Restricted
Subsidiary” shall mean, with respect to any Person, any Subsidiary of
such Person other than an Unrestricted Subsidiary of such
Person. Unless otherwise indicated in this Agreement, all references
to Restricted Subsidiaries shall mean Restricted Subsidiaries of the
Borrower.
“Retired Capital
Stock” shall have the meaning assigned to such term in Section
6.04(b)(ii).
“Reversion Date” shall
have the meaning assigned to such term in Section 6.09(c).
“Revolving Credit
Agreement” shall mean the Amended and Restated Revolving Credit
Agreement, dated April 3, 2007, by and among the Borrower, Xxxxx Plastics
Group, Inc., certain Subsidiaries of the Borrower, Bank of America, N.A., as
administrative agent, and the other lenders party thereto, as amended, restated,
supplemented, waived, replaced (whether or not upon termination, and whether
with the original lenders or otherwise), restructured, repaid, refunded,
refinanced or otherwise modified from time to time, including any agreement or
indenture extending the maturity thereof, refinancing, replacing or otherwise
restructuring all or any portion of the Indebtedness under such agreement or
agreements or indenture or indentures or any successor or replacement agreement
or agreements or indenture or indentures or increasing the amount loaned or
issued thereunder or altering the maturity thereof.
“Revolving Facility
Administrative Agent” shall mean Bank of America, N.A., as administrative
agent for the lenders under the Revolving Credit Agreement, together with its
successors and permitted assigns under the Revolving Credit Agreement exercising
substantially the same rights and powers, or such other agent as may from time
to time be appointed thereunder.
“Revolving Facility
Collateral Agent” shall mean Bank of America, N.A., as collateral agent
for the lenders under the Revolving Credit Agreement, together with its
successors and permitted assigns under the Revolving Credit Agreement exercising
substantially the same rights and powers, or such other agent as may from time
to time be appointed thereunder.
“Revolving Facility
Lenders” shall mean the “Lenders” under and as defined in the Revolving
Credit Agreement.
“Revolving Facility
Obligations” shall mean all “Obligations” (as such term is defined in the
Revolving Credit Agreement) now or hereafter owing to Revolving Facility Secured
Parties, and all other indebtedness and obligations now or hereafter owing to
the Revolving Facility Secured Parties that is secured by any of the Bank
Agreement Security Documents.
“Revolving Facility Secured
Parties” shall mean (a) the Revolving Facility Lenders (and any
Affiliate of a Revolving Facility Lender designated by the Borrower as a
provider of cash managment
services to which any obligation referred to in clause (c) of the
definition of the term “Obligations” (as defined in the Existing Senior Security
Agreement) is owed), (b) the Revolving Facility Administrative Agent and
the Revolving Facility Collateral Agent, (c) each Issuing Bank (as defined
in the Revolving Credit Agreement) party to the Revolving Credit Agreement,
(d) each counterparty to any Swap Agreement entered into with the Borrower
or any Subsidiary Loan Party party to the Revolving Credit Agreement, the
obligations under which constitute “Obligations” (as defined in the Existing
Senior Security Agreement), (e) the beneficiaries of each indemnification
obligation undertaken by the Borrower or any Subsidiary Loan Party party to the
Revolving Credit Agreement under any Loan Document (as defined in the Revolving
Credit Agreement) and (f) the successors and permitted assigns of each of
the foregoing.
-39-
“Revolving Facility Senior
Collateral” shall have the meaning assigned to such term in the Senior
Lender Intercreditor Agreement.
“Revolving Loan
Documents” shall mean the “Loan Documents” as defined in the Revolving
Credit Agreement.
“Rollover Conversion”
shall have the meaning set forth in Section 2.01(b).
“Rollover Date” shall
mean the Bridge Loan Maturity Date, provided the Rollover
Conversion occurs on such date.
“Rollover Loan” shall
have the meaning assigned to such term in Section 2.01(b).
“Rollover Loan Maturity Date” shall
mean February 5, 2015.
“Rollover Note” shall
have the meaning set forth in Section 2.09(e).
“S&P” shall mean
Standard & Poor’s Ratings Group, Inc. or any successor to the rating agency
business thereof.
“Sale/Leaseback
Transaction” shall mean an arrangement relating to property now owned or
hereafter acquired by the Borrower or a Restricted Subsidiary whereby the
Borrower or a Restricted Subsidiary transfers such property to a Person and the
Borrower or a Restricted Subsidiary leases it from such Person, other than
leases between the Borrower and a Restricted Subsidiary of the Borrower or
between Restricted Subsidiaries of the Borrower.
“SEC” shall mean the
Securities and Exchange Commission or any successor thereto.
“Second Priority
Intercreditor Agreement” shall mean the Second Amended and Restated
Intercreditor Agreement, to be dated as of the Closing Date, by and among the
Collateral Agent, the Second Priority Notes Trustee, the Term Loan Collateral
Agent, the Revolving Facility Collateral Agent, the Borrower, the Subsidiary
Loan Parties and Xxxxx Plastics Group, Inc., as may be amended, restated or
otherwise supplemented.
“Second Priority
Notes” shall mean the 8⅞% Second Priority Fixed Rate Senior Secured Notes
due 2014 and the Second Priority Senior Secured Floating Rate Notes due 2014
issued by the Borrower on September 20, 2006.
“Second Priority Notes
Indenture” shall mean the indenture dated as of September 20, 2006
among the Borrower and certain of its subsidiaries party thereto and the trustee
named therein from
--
-40-
time to
time, as amended, restated, supplemented or otherwise modified from time to time
in accordance with the requirements thereof and of this Agreement.
“Second Priority Notes
Trustee” shall mean Xxxxx Fargo Bank, N.A., as collateral trustee for the
holders of the Second Priority Notes.
“Secured Bank
Indebtedness” shall mean the Revolving Facility Obligations, the Term
Loan Obligations and any Bank Indebtedness that is secured by a Permitted Lien
incurred or deemed incurred pursuant to clause (f)(B) of the definition of
Permitted Lien.
“Secured Indebtedness”
shall mean any Indebtedness secured by a Lien.
“Secured Indebtedness
Leverage Ratio” shall mean, with respect to any Person at any date, the
ratio of (i) Secured Indebtedness of such Person and its Restricted Subsidiaries
as of such date of calculation (determined on a consolidated basis in accordance
with GAAP) that constitutes First Priority Lien Obligations to (ii) EBITDA of
such Person for the four full fiscal quarters for which internal financial
statements are available immediately preceding such date on which such
additional Indebtedness is Incurred. In the event that the Borrower or any of
its Restricted Subsidiaries Incurs, repays, repurchases or redeems any
Indebtedness subsequent to the commencement of the period for which the Secured
Indebtedness Leverage Ratio is being calculated but prior to the event for which
the calculation of the Secured Indebtedness Leverage Ratio is made (the “Secured Leverage Calculation
Date”), then the Secured Indebtedness Leverage Ratio shall be calculated
giving pro forma effect to such Incurrence, repayment, repurchase or redemption
of Indebtedness as if the same had occurred at the beginning of the applicable
four-quarter period; provided that the
Borrower may elect, pursuant to an Officers’ Certificate delivered to the
Administrative Agent to treat all or any portion of the commitment under any
Indebtedness as being Incurred such time, in which case any subsequent
Incurrence of Indebtedness under such commitment shall not be deemed, for
purposes of this calculation, to be an Incurrence at such subsequent
time.
For
purposes of making the computation referred to above, Investments, acquisitions,
dispositions, mergers, consolidations and discontinued operations (as determined
in accordance with GAAP), in each case with respect to an operating unit of a
business, and any operational changes that the Borrower or any of its Restricted
Subsidiaries has determined to make and/or made after the Closing Date and
during the four-quarter reference period or subsequent to such reference period
and on or prior to or simultaneously with the Secured Leverage Calculation Date
(each, for purposes of this definition, a “pro forma event”)
shall be calculated on a pro forma basis assuming that all such Investments,
acquisitions, dispositions, mergers, consolidations (including the
Transactions), discontinued operations and other operational changes (and the
change of any associated Indebtedness and the change in EBITDA resulting
therefrom) had occurred on the first day of the four-quarter reference period.
If since the beginning of such period any Person that subsequently became a
Restricted Subsidiary or was merged with or into the Borrower or any Restricted
Subsidiary since the beginning of such period shall have made any Investment,
acquisition, disposition, merger, consolidation, discontinued operation or
operational change, in each case with respect to an operating unit of a
business, that would have required adjustment pursuant to this definition, then
the Secured Indebtedness Leverage Ratio shall be calculated giving pro forma
effect thereto for such period as if such Investment, acquisition, disposition,
discontinued operation, merger, consolidation or operational change had occurred
at the beginning of the applicable four-quarter period.
For
purposes of this definition, whenever pro forma effect is to be given to any pro
forma event, the pro forma calculations shall be made in good faith by a
responsible financial or accounting officer of the Borrower. Any such pro forma
calculation may include adjustments appropriate, in the reasonable good faith
determination of the Borrower as set forth in an Officers’ Certificate, to
reflect (1) operating expense reductions and other operating improvements or
synergies reasonably expected to result from the
applicable pro forma event (including, to the extent applicable, from the
Transactions), and (2) all pro forma adjustments of the nature used in similar
calculations in the Second Priority Notes Indenture (as in effect on the date
hereof), including, without limitation, as applied to the
Transactions.
“Secured Parties”
shall mean the “Secured Parties” as defined in the Collateral
Agreement.
“Securities Act” shall
mean the Securities Act of 1933, as amended, and the rules and regulations of
the SEC promulgated thereunder.
“Securities Demand
Period” has the meaning set forth in Section 5.12(a).
-41-
“Security Documents”
shall mean the Mortgages, the Collateral Agreement, the Foreign Pledge
Agreements and each of the security agreements and other instruments and
documents executed and delivered pursuant to any of the foregoing or pursuant to
Section 5.10.
“Senior Fixed Lender
Intercreditor Agreement” shall mean the Senior Fixed Collateral Priority
and Intercreditor Agreement, to be dated as of the Closing Date, by and among
the Collateral Agent, the Term Loan Collateral Agent, the Borrower, certain
Subsidiary Loan Parties and Xxxxx Plastics Group, Inc., as amended, supplemented
or otherwise modified from time to time.
“Senior Fixed
Obligations” shall mean all First Priority Lien Obligations other than
Revolving Facility Obligations.
“Senior Lender Intercreditor
Agreement” shall mean the Second Amended and Restated Senior Lender
Priority and Intercreditor Agreement, to be dated as of the Closing Date, by and
among the Collateral Agent, the Term Loan Collateral Agent, the Revolving
Facility Collateral Agent, the Borrower, the Subsidiary Loan Parties and Xxxxx
Plastics Group, Inc., as amended, supplemented or otherwise modified from time
to time.
“Senior Secured Credit
Facilities” shall mean the Revolving Credit Agreement and the Term Loan
Credit Agreement.
“Senior Subordinated
Notes” shall mean the 11% Senior Subordinated Notes due 2016 of the
Borrower issued on September 20, 2006 and the 10¼% Senior Subordinated
Notes due 2016 of the Borrower issued on February 16, 2006.
“Senior Subordinated Notes
Indentures” shall mean the Indenture dated as of February 16, 2006, under
which the Borrower’s 10¼% Senior Subordinated Notes due 2016 were issued, among
the Borrower and certain of the Subsidiaries party thereto and the trustee named
therein from time to time, and the Indenture dated as of September 20, 2006,
under which the Borrower’s 11% Senior Subordinated Notes due 2016 were issued,
among the Borrower and certain of its subsidiaries party thereto and the trustee
named therein from time to time, in each case as in effect as of the date hereof
and as amended, restated, supplemented or otherwise modified from time to time
in accordance with the requirements thereof and of this Agreement.
“Similar Business”
shall mean a business, the majority of whose revenues are derived from the
activities of the Borrower and its Subsidiaries as of the Closing Date or any
business or activity that is reasonably similar or complementary thereto or a
reasonable extension, development or expansion thereof or ancillary
thereto.
--
-42-
“Standard Securitization
Undertakings” shall mean representations, warranties, covenants,
indemnities and guarantees of performance entered into by the Borrower or any
Subsidiary of the Borrower which the Borrower has determined in good faith to be
customary in a Receivables Financing including, without limitation, those
relating to the servicing of the assets of a Receivables Subsidiary, it being
understood that any Receivables Repurchase Obligation shall be deemed to be a
Standard Securitization Undertaking.
“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.
“Stated Maturity”
shall mean, with respect to any security, the date specified in such security as
the fixed date on which the final payment of principal of such security is due
and payable, including pursuant to any mandatory redemption provision (but
excluding any provision providing for the repurchase of such security at the
option of the holder thereof upon the happening of any contingency beyond the
control of the issuer unless such contingency has occurred).
“Subagent” shall have
the meaning assigned to such term in Section 8.02.
“Subordinated
Indebtedness” shall mean (a) with respect to the Borrower, any
Indebtedness of the Borrower which is by its terms subordinated in right of
payment to the Loans, and (b) with respect to any Subsidiary Loan Party, any
Indebtedness of such Subsidiary Loan Party which is by its terms subordinated in
right of payment to its Guarantee.
“subsidiary” shall
mean, with respect to any Person (herein referred to as the “parent”), any
corporation, partnership, association or other business entity (a) of which
securities or other ownership interests representing more than 50% of the equity
or more than 50% of the ordinary voting power or more than 50% of the general
partnership interests are, at the time any determination is being made, directly
or indirectly, owned, controlled or held, or (b) that is, at the time any
determination is made, otherwise controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.
“Subsidiary” shall
mean, unless the context otherwise requires, a subsidiary of the
Borrower. Notwithstanding the foregoing (and except for purposes of
Sections 3.09, 3.13, 3.15, 3.16, 5.03, 5.09 and 7.01(k), and the definition of
“Unrestricted Subsidiary” contained herein), an Unrestricted Subsidiary shall be
deemed not to be a Subsidiary of the Borrower or any of its Subsidiaries for
purposes of this Agreement.
“Subsidiary Loan
Party” shall mean (a) each Domestic Subsidiary of the Borrower on the
Closing Date and (b) each Domestic Subsidiary of the Borrower that becomes, or
is required to become, a party to the Collateral Agreement, the Senior Lender
Intercreditor Agreement, the Second Priority Intercreditor Agreement and the
Senior Fixed Lender Intercreditor Agreement after the Closing Date.
“Subsidiary
Redesignation” shall have the meaning provided in the definition of
“Unrestricted Subsidiary” contained in this Section 1.01.
“Successor Company”
shall have the meaning assigned to such term in Section 6.05(a)(i).
--
-43-
“Successor Subsidiary Loan
Party” shall have the meaning assigned to such term in Section
6.05(b).
“Suspended Covenant”
shall have the meaning assigned to such term in Section 6.09(b).
“Suspension Period”
shall have the meaning assigned to such term in Section 6.09(c).
“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 (including, for the avoidance of
doubt, resin), 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
the Borrower or any of the Subsidiaries shall be a Swap Agreement.
“Syndication Agent”
shall have the meaning assigned to such term in the introductory paragraph of
this Agreement.
“Tax Distributions”
shall mean any distributions described in Section 6.04(b)(xii).
“Taxes” shall mean any
and all present or future taxes, levies, imposts, duties (including stamp
duties), deductions, withholdings or similar charges (including ad valorem charges) imposed
by any Governmental Authority and any and all interest and penalties related
thereto.
“Term Loan Collateral
Agent” shall mean Credit Suisse, Cayman Islands Branch, as collateral
agent for the lenders under the Term Loan Credit Agreement, together with its
respective successors and permitted assigns under the Term Loan Credit Agreement
exercising substantially the same rights and powers, or such other agent as may
from time to time be appointed thereunder.
“Term Loan Credit
Agreement” shall mean that certain Second Amended and Restated Term Loan
Credit Agreement, dated April 3, 2007, by and among the Borrower, Xxxxx
Plastics Group, Inc., Credit Suisse, Cayman Islands Branch, as administrative
agent, and the other lenders party thereto, as amended, restated, supplemented,
waived, replaced (whether or not upon termination, and whether with the original
lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise
modified from time to time, including any agreement or indenture extending the
maturity thereof, refinancing, replacing or otherwise restructuring all or any
portion of the Indebtedness under such agreement or agreements or indenture or
indentures or any successor or replacement agreement or agreements or indenture
or indentures or increasing the amount loaned or issued thereunder or altering
the maturity thereof.
“Term Loan Facility
Administrative Agent” shall mean Credit Suisse, Cayman Islands Branch, as
administrative agent for the lenders under the Term Loan Credit Agreement,
together with its successors and permitted assigns under the Term Loan Credit
Agreement exercising substantially the same rights and powers, or such other
agent as may from time to time be appointed thereunder.
“Term Loan Lenders”
shall mean the “Lenders” under and as defined in the Term Loan Credit
Agreement.
“Term Loan
Obligations” shall mean all “Obligations” (as such term is defined in the
Term Loan Collateral Agreement) now or hereafter owing to Term Loan Secured
Parties, and all other indebtedness
and obligations now or hereafter owing to the Term Loan Secured Parties that is
secured by any of the Bank Agreement Security Documents.
“Term Loan Secured
Parties” shall mean, at any time, (a) the Term Loan Lenders,
(b) the Term Loan Facility Administrative Agent and the Term Loan
Collateral Agent, (c) the beneficiaries of each indemnification obligation
undertaken by the Borrower and any Subsidiary Loan Party party to the Term Loan
Credit Agreement under any Loan Document (as defined in the Term Loan Credit
Agreement) and (d) the successors and permitted assigns of each of the
foregoing.
“Total Assets” shall
mean the total consolidated assets of the Borrower and its Restricted
Subsidiaries, as shown on the most recent balance sheet of the
Borrower.
-44-
“Transaction
Documents” shall mean the Loan Documents, the Revolving Credit Agreement,
the Term Loan Credit Agreement and the “Loan Documents” as defined in each of
the Revolving Credit Agreement and the Term Loan Credit Agreement and the
Captive Merger Documents.
“Transaction Expenses”
shall mean any fees or expenses incurred or paid by the Funds, Fund Affiliates,
the Borrower (or any direct or indirect parent of the Borrower) or any of its
Subsidiaries in connection with the Transactions, this Agreement and the other
Loan Documents (including expenses in connection with Swap Agreements) and the
transactions contemplated hereby and thereby.
“Transactions” shall
mean, collectively, the transactions to occur pursuant to the Transaction
Documents, including (a) the consummation of the Captive Acquisition; (b) the
execution and delivery of the Loan Documents, the creation or continuation of
the Liens pursuant to the Security Documents, and the initial borrowings
hereunder and (c) the payment of all Transaction Expenses.
“Trustee” shall have
the meaning assigned to such term in Section 5.13.
“Type” shall mean,
when used in respect of any Loan or Borrowing, the Rate by reference to which
interest on such Loan or on the Loans comprising such Borrowing is
determined. For purposes hereof, the term “Rate” shall include
the Adjusted LIBO Rate and the ABR.
“Unfunded Pension
Liability” shall mean the excess of a Plan’s benefit liabilities under
Section 4001(a)(16) of ERISA, over the current value of that Plan’s assets,
determined in accordance with the assumptions used for funding the Plan pursuant
to Section 412 of the Code for the applicable plan year.
“Uniform Commercial
Code” or “UCC” shall mean the
Uniform Commercial Code as the same may from time to time be in effect in the
State of New York or the Uniform Commercial Code (or similar code or statute) of
another jurisdiction, to the extent it may be required to apply to any item or
items of Collateral.
“Unrestricted Cash”
shall mean domestic cash or cash equivalents of the Borrower or any of its
Subsidiaries that would not appear as “restricted” on a consolidated balance
sheet of the Borrower or any of its Subsidiaries.
“Unrestricted
Subsidiary” shall mean:
(a) any
Subsidiary of the Borrower that at the time of determination shall be designated
an Unrestricted Subsidiary by the Board of Directors of such Person in the
manner provided below; and
(b) any
Subsidiary of an Unrestricted Subsidiary.
The Board
of Directors of the Borrower may designate any Subsidiary of the Borrower
(including any newly acquired or newly formed Subsidiary of the Borrower) to be
an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries
owns any Equity Interests or Indebtedness of, or owns or holds any Lien on any
property of, the Borrower or any other Subsidiary of the Borrower that is not a
Subsidiary of the Subsidiary to be so designated; provided, however, that the
Subsidiary to be so designated and its Subsidiaries do not at the time of
designation have and do not thereafter Incur any Indebtedness pursuant to which
the lender has recourse to any of the assets of the Borrower or any of its
Restricted Subsidiaries; provided, further, however, that
either:
-45-
(i)the Subsidiary to be so designated
has total consolidated assets of $1,000 or less; or
(ii)if such Subsidiary has consolidated
assets greater than $1,000, then such designation would be permitted under
Section 6.04.
The Board
of Directors of the Borrower may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided, however, that
immediately after giving effect to such designation:
(x) (1)
the Borrower could Incur $1.00 of additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in Section 6.01(a) or (2) the Fixed Charge
Coverage Ratio for the Borrower and its Restricted Subsidiaries would be greater
than such ratio for the Borrower and its Restricted Subsidiaries immediately
prior to such designation, in each case on a pro forma basis taking into account
such designation, and
(y) no
Event of Default shall have occurred and be continuing.
Any such
designation by the Board of Directors of the Borrower shall be evidenced to the
Administrative Agent by promptly filing with the Administrative Agent a copy of
the resolution of the Board of Directors of the Borrower giving effect to such
designation and an Officers’ Certificate certifying that such designation
complied with the foregoing provisions.
“Weighted Average Life to
Maturity” shall mean, when applied to any Indebtedness or Disqualified
Stock, as the case may be, at any date, the quotient obtained by dividing (1)
the sum of the products of the number of years from the date of determination to
the date of each successive scheduled principal payment of such Indebtedness or
redemption or similar payment with respect to such Disqualified Stock multiplied
by the amount of such payment, by (2) the sum of all such payments.
“Wholly Owned Restricted
Subsidiary” is any Wholly Owned Subsidiary that is a Restricted
Subsidiary.
“Wholly Owned
Subsidiary” of any Person shall mean a Subsidiary of such Person 100% of
the outstanding Capital Stock or other ownership interests of which (other than
directors’ qualifying shares or shares required to be held by Foreign
Subsidiaries) shall at the time be owned by such Person or by one or more Wholly
Owned Subsidiaries of such Person.
“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.
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 GAAP, as in
effect from time to time; provided, that, if
the Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the Closing Date in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrower 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 GAAP or in the application thereof, then such provision
shall be interpreted on the basis of 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.
-46-
SECTION
1.03. Effectuation of
Transactions
. Each
of the representations and warranties of the Borrower contained in this
Agreement (and all corresponding definitions) are made after giving effect to
the Transactions, unless the context otherwise requires.
SECTION
1.04. Senior
Debt
. The
Obligations constitute (a) “First-Priority Lien Obligations” pursuant to, and as
defined in, the Senior Lender Intercreditor Agreement, “Senior Lender Claims”
pursuant to, and as defined in, the Second Priority Intercreditor Agreement and
“Senior Fixed Obligations” pursuant to, and as defined in, Senior Fixed Lender
Intercreditor Agreement,
(b)
“Senior Indebtedness” and “Designated Senior Indebtedness” pursuant to, and as
defined in, the Senior Subordinated Notes Indentures, and (c) “First-Priority
Lien Obligations” pursuant to, and as defined in, the Second Priority Notes
Indenture. This Agreement is a “Credit Agreement” for purposes of the Senior
Subordinated Notes Indentures and the Second Priority Notes
Indenture.
ARTICLE
II
The
Credits
SECTION
2.01. Commitment
.
(a) Bridge
Loans. Subject to the terms and conditions set forth herein,
each Lender agrees severally, and not jointly, to make senior interim secured
bridge loans to the Borrower in Dollars in an amount not to exceed its
Commitment; provided that
(i) all such Bridge Loans shall be incurred by the Borrower pursuant to one
drawing on the Closing Date and (ii) any Bridge Loan that is repaid may not be
reborrowed.
(b) Rollover
Loans. Subject to satisfaction of the conditions set forth in
Section 2.01(c), the Borrower, and each Lender, severally and not jointly, agree
that if the Bridge Loans have not been repaid in full by the latest time
specified for payment in Section 2.18 on the Bridge Loan Maturity Date, the then
outstanding principal amount of each Lender’s Bridge Loan shall, immediately
after such latest specified time for payment, automatically be converted (a
“Rollover
Conversion”) into a loan (individually, a “Rollover Loan” and,
collectively, the “Rollover Loans”) on
the Rollover Date in an aggregate
--
-47-
principal
amount equal to the then outstanding principal amount of such Lender’s Bridge
Loan; provided,
however, that
if the conditions set forth in Section 2.01(c) have not been satisfied by such
time on the Bridge Loan Maturity Date, then the Bridge Loans will become
automatically due and payable at such time. Upon a Rollover
Conversion on the Rollover Date, the Bridge Loans shall be deemed to have been
prepaid and the Borrower will be required to make any payments due under Section
2.16 with respect thereto. Any Rollover Loan that is repaid may not
be reborrowed.
(c) Conditions to Rollover
Loans. On the Rollover Date, the Rollover Conversion of Bridge
Loans into Rollover Loans is subject to the following conditions: (i)
that at the time of such Rollover Conversion, there shall exist no Event of
Default pursuant to Section 7.01(h) or (i), and (ii) that at the time of
such Rollover Conversion, there shall exist no acceleration of the
maturity of or default in the payment when due at final maturity of any
Indebtedness of the Borrower or any of its subsidiaries pursuant to this
Agreement, the Revolving Credit Agreement, the Term Loan Credit Agreement or the
Second Priority Indenture.
(d) Exchange
Notes.
(i) Subject
to satisfaction of the provisions of this Section 2.01(d), on and after the
Rollover Date, each Lender will have the option to notify the Administrative
Agent in writing, by delivery of an exchange notice substantially in the form of
Exhibit H hereto (an “Exchange Notice), of
its request for exchange notes (individually, an “Exchange Note” and,
collectively, the “Exchange Notes”) in
exchange for its Rollover Loan. Each Lender’s Exchange Notice shall,
among other things, (A) indicate the aggregate principal amount of its Rollover
Loan that such Lender desires to exchange for Exchange Notes pursuant to this
Section 2.01(d), which shall be in denominations of $2,000 and integral
multiples of $1,000 in excess thereof, (B) include a representation and warranty
by the applicable Lender, or any other Person designated by such Lender to take
possession of the Exchange Notes, to the Borrower that (I) it is a “Qualified
Institutional Buyer” (as defined in Rule 144A under the Securities Act), (II)
that it is not a U.S. Person and is acquiring the Exchange Notes in an offshore
transaction in compliance with Rule 904 under the Securities Act or (III) that
it is an institutional “accredited investor”(as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act of 1933) that has furnished to the Trustee a
signed letter containing certain representations and agreements, and (C) if such
Lender holds Rollover Notes, be accompanied by the Rollover Notes to be
exchanged for Exchange Notes.
(ii) Notwithstanding
the foregoing, such Lender’s Rollover Loan shall only be exchanged for Exchange
Notes hereunder upon the occurrence of an Exchange Trigger Event, notice of
which shall be provided to the Borrower and each such Lender that has delivered
an Exchange Notice that has given rise to such Exchange Trigger Event by the
Administrative Agent. Thereafter, the Borrower shall set a date (the
“Exchange
Date”) for the exchange of Rollover Loans for Exchange Notes, which date
shall be (a) no less than five Business Days after such Exchange Trigger Event
and (b) the next day which is the 6th day of any calendar month (or if such date
is not a Business Day, the next Business Day) following the Exchange Trigger
Event (provided that such date shall also comply with the immediately preceding
clause (a)). On such Exchange Date, the Borrower shall (A) (i) deliver a notice
to the Trustee directing the Trustee to authenticate and deliver to each Lender
that elects to exchange a Rollover Loan on such Exchange Date, an Exchange Note
in the principal amount equal to 100% of the principal amount of such Rollover
Loan for which such Exchange Note is being exchanged (which at such Lender’s
option may be all or a portion of such Lender’s Rollover Loans) and bearing
interest at the rate then in effect for the Rollover Loans and (ii) use
reasonable best efforts to effect delivery of such Exchange Note to the
requesting Lender, and (B) pay to such Lender the amount of accrued and unpaid
interest on the Rollover Loans being exchanged; provided that the Lender, or the
Affiliate of the Lender receiving the Exchange Notes shall simultaneously pay to
the Borrower the amount of accrued and unpaid interest, if any, that would have
accrued on an equal principal amount of Exchange Notes from the beginning of the
then current
interest period as set forth in the Exchange Notes Indenture (it being
understood that on the next scheduled interest payment date set forth in the
Exchange Notes Indenture, the holder of such Note shall receive interest for the
entire period). The Exchange Notes shall be governed by the Exchange
Notes Indenture. Upon issuance of the Exchange Notes, any
corresponding Rollover Notes delivered hereunder shall be canceled by the
Borrower and the corresponding amount of the Rollover Loans deemed repaid and
all accrued and unpaid interest and other amounts due thereon (including under
Section 2.16) shall at such time be due and payable. If a
Default shall have occurred and be continuing on the Exchange Date, any notices
given or cure periods commenced while the Rollover Loan was outstanding shall be
deemed given or commenced (as of the actual dates thereof) for all purposes with
respect to the Exchange Notes (with the same effect as if the Exchange Notes had
been outstanding as of the actual dates thereof).
-48-
(iii)
An Affiliate of the Administrative Agent shall assist the Borrower in making
Exchange Notes eligible for deposit with The Depository Trust Company
(including, without limitation, by completion and submission of an eligibility
questionnaire or by other means).
SECTION
2.02. Loans and
Borrowings
.
(a) Each
Loan shall be made as part of a Borrowing consisting of Loans of the same Type
made by the Lenders ratably in accordance with their respective
Commitments. 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 and 2.20, each Borrowing shall be comprised entirely of ABR
Loans or Eurocurrency Loans as the Borrower may request in accordance herewith;
provided that Eurocurrency Loans shall have an Interest Period of one, two,
three or six months, with the first such Interest Period commencing on (x) the
Closing Date with respect to Bridge Loans and (y) the Rollover Date with respect
to Rollover 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 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 or 2.17 solely in
respect of increased costs resulting from such exercise and existing at the time
of such exercise.
(c) Notwithstanding
any other provision of this Agreement, the Borrower shall not be entitled to
request or continue any (i) Bridge Loan Borrowing if the Interest Period
requested with respect thereto would end after the Bridge Loan Maturity Date and
(ii) Rollover Loan Borrowing if the Interest Period requested with respect
thereto would end after the Rollover Loan Maturity Date.
SECTION
2.03. Requests for
Borrowings
. To
request a Borrowing of Bridge Loans, the Borrower shall notify the
Administrative Agent of such request by telephone) (a) in the case of a
Eurocurrency Borrowing not later than 12:00 p.m., Local Time, three Business
Days before the date of the proposed Borrowing, and (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. 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 Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) the
aggregate amount of the requested Borrowing;
(ii) the
date of such Borrowing, which shall be a Business Day;
(iii) whether
such Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing;
(iv) in
the case of a Eurocurrency Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of
the term “Interest Period”; and
(v) the
location and number of the Borrower’s account to which funds are to be
disbursed.
-49-
If no
Interest Period is specified with respect to any requested Eurocurrency
Borrowing, then the Borrower shall be deemed to have selected an Interest Period
of three month’s duration (including with respect to the Borrowing Request made
in respect of Loans made on the Closing Date). 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. [Reserved].
SECTION
2.05. [Reserved].
SECTION
2.06. Funding of
Borrowings
.
(a) Each
Lender shall make each Bridge Loan to be made by it hereunder on the Closing
Date 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. The Administrative Agent will
make such Loans available to the Borrower by promptly crediting the amounts so
received, in like funds, to an account of the Borrower maintained with the
Administrative Agent in New York City.
(b) Unless
the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing 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 Borrower a corresponding amount. In
such event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the applicable Lender and
the 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 Borrower to but
excluding the date of payment to the Administrative Agent, at (i) in the case of
such Lender, 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 or (ii) in the case of the Borrower, the interest rate
applicable to ABR Loans at such time. If such Lender pays such amount
to the Administrative Agent, then such payment shall discharge the Borrower’s
obligations to pay such demand loan and from that time 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 Borrower may elect to convert
such Borrowing to a different Type or to continue such Borrowing and, in the
case of a Eurocurrency Borrowing, may elect Interest Periods therefor, all as
provided in this Section 2.07. The 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.
(b) To
make an election pursuant to this Section 2.07, the 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 the Borrower were
requesting a Borrowing of the Type 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
Borrower.
-50-
(c) Each
telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:
(A) 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);
(B) the
effective date of the election made pursuant to such Interest Election Request,
which shall be a Business Day;
(C) whether
the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;
and
(D) 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 Borrower shall be deemed to have
selected an Interest Period of three 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 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 continue to be the same Type, with the
same duration of Interest Period as the then-existing Borrowing. 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
Borrower, then, so long as an Event of Default is continuing (i) no outstanding
Borrowing may be converted to or continued as a Eurocurrency Borrowing and (ii)
unless repaid, each Eurocurrency Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.
SECTION
2.08. Termination of
Commitment
. The
parties hereto acknowledge that the Commitment of each Lender shall terminate at
5:00 p.m. New York City time on the Closing Date.
SECTION
2.09. Repayment
of Loans; Evidence of Debt
(a) The
Borrower hereby unconditionally promises to pay (i) on the Bridge Loan Maturity
Date to the Administrative Agent the then unpaid principal amount of each Bridge
Loan made to the Borrower (unless converted to a Rollover Loan in accordance
with Section 2.01(b)), and (ii) on the Rollover Loan Maturity Date to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Rollover Loan of such Lender (unless exchanged for an Exchange
Note in accordance with Section 2.01(d)).
(b) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the 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.
-51-
(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 the 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 the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any
Lender may request that Loans made by it be evidenced by a promissory
note. In such event, the 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
substantially in the form of Exhibit E-1
(each, a “Bridge
Note”) or E-2 (each, a “Rollover Note”), as
the case may be, for the Bridge Loans and Rollover Loans, respectively (it being
understood that the Borrower shall be entitled to require that a Lender return
its Bridge Note prior to preparing, executing and delivering a Rollover Note to
such Lender). 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).
SECTION
2.10. Prepayments,
etc.
(a) The
Borrower shall have the right at any time and from time to time to prepay any
Borrowing of any Bridge Loan or Rollover Loan (provided the same has
not been exchanged for an Exchange Note) 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(c).
(b) The
Borrower shall apply all Net Proceeds promptly upon receipt thereof to prepay
Loans. Notwithstanding the foregoing, (i) the Borrower may retain Net
Proceeds pursuant to clause (b) of the definition thereof (other than with
respect to prepayments with proceeds from an issuance of Excluded Indebtedness
(other than Indebtedness permitted to be incurred under Section 6.01(b)(xvi)),
provided, that the Total Net First Lien Leverage Ratio (as defined in the Term
Loan Credit Agreement as
--
-52-
in effect
on the date hereof) on the last day of the Borrower’s then most recently
completed fiscal quarter for which financial statements are available shall be
less than or equal to 2.00 to 1.00, and (ii) no prepayment pursuant to this
Section 2.10(b) (other than with respect to prepayments with Net Proceeds
of an issuance of Excluded Indebtedness (other than Indebtedness permitted to be
incurred under Section 6.01(b)(xvi)) or Equity Issuance) shall be required to be
made to the extent such Net Proceeds are required to be applied to the repayment
of loans outstanding under the Senior Secured Credit Facilities and such
requirement is not waived by the applicable Lenders (and to the extent involving
a repayment of a revolving credit facility, a permanent commitment reduction
thereunder in a corresponding amount was effected in connection with such
repayment). Notwithstanding anything to the contrary provided herein,
to the extent that the terms of any Permanent Financing or First Priority Lien
Obligations other than the Senior Secured Credit Facilities require prepayment
of such Permanent Financing or First Priority Lien Obligations other than the
Senior Secured Credit Facilities with Net Proceeds, then the Borrower shall be
permitted to repay such Permanent Financing or First Priority Lien Obligations
other than the Senior Secured Credit Facilities and the Loans
ratably.
(c) Prior
to the repayment of any Loan pursuant to Section 2.10(a), the Borrower may
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 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 voluntary repayment of a Borrowing shall be applied
ratably to the Loans included in the repaid Borrowing. All mandatory
prepayments pursuant to Section 2.10(b) shall be applied ratably to the Loans,
regardless of Type. Repayments of Loans shall be accompanied by
accrued interest on the amount repaid.
SECTION
2.11. Change of Control Prepayment
Offer
. Unless
otherwise prepaid in accordance with Section 2.10(a) hereof, the Borrower shall
make an offer to prepay all of the Bridge Loans pursuant to the offer described
below (the “Change of
Control Offer”) at a price in cash (the “Change of Control
Payment”) equal to 100% of the aggregate principal amount thereof plus
accrued and unpaid interest to the date of purchase, subject to the right of
Lenders of record on the relevant record date to receive interest due on the
relevant interest payment date. Within 30 days following any Change
of Control, the Borrower will send notice of such Change of Control Offer by
first-class mail, with a copy to the Administrative Agent and to each Lender to
the address of such Lender appearing in the Register with a copy to the
Administrative Agent, with the following information:
(i) that
a Change of Control Offer is being made pursuant to this Section 2.11 and that
all Bridge Loans accepted to prepayment in accordance with the terms of this
Agreement will be accepted for payment by the Borrower;
(ii) the
prepayment price and date of prepayment, which will be no earlier than 30 days
nor later than 60 days from the date such notice is mailed (the “Change of Control Payment
Date”);
(iii) that
any Bridge Loans not properly accepted for prepayment pursuant to this Agreement
will remain outstanding and continue to accrue interest;
(iv) that
unless the Borrower defaults in the payment of the Change of Control Payment,
all Bridge Loans accepted for prepayment pursuant to the Change of Control Offer
will cease to accrue interest on the Change of Control Payment
Date;
(v) that
Lenders will be entitled to withdraw their election to require the Borrower to
prepay such Bridge Loans, provided that the
Administrative Agent receives, not later than the
--
-53-
close of
business on the 30th day following the date of the Change of Control notice, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Lender, the principal amount of Bridge Loans accepted for prepayment, and a
statement that such Lender is withdrawing its election to have such Bridge Loans
prepaid; and
(vi) if
such notice is mailed prior to the occurrence of a Change of Control, stating
that the Change of Control Offer is conditional on the occurrence of such Change
of Control.
On the
Change of Control Payment Date, the Borrower will, to the extent permitted by
law, prepay all Bridge Loans, or portions thereof, accepted for prepayment in
accordance with this Section 2.11 pursuant to the Change of Control Offer, by
depositing with the Administrative Agent an amount equal to the aggregate Change
of Control Payment in respect of all Bridge Loans or portions thereof so
accepted for prepayment as of the close of business on the Business Day
immediately preceding the Change of Control Payment Date and not validly
withdrawn as permitted above.
Notwithstanding
the foregoing, the Borrower shall not be required to make a Change of Control
Offer following a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements of this Section 2.11 and prepays all Bridge Loans validly accepted
for prepayment under such Change of Control Offer. Notwithstanding
anything to the contrary herein, a Change of Control Offer may be made in
advance of a Change of Control, conditional upon such Change of Control, if a
definitive agreement is in place for the Change of Control at the time of making
of the Change of Control Offer.
In the
event that at the time of such Change of Control the terms of any Bank
Indebtedness restrict or prohibit a Change of Control Prepayment, then
prior to making any Change of Control Prepayment, the Borrower shall, within 30
days of the occurrence of the Change of Control, (i) repay in full all such Bank
Indebtedness or, if doing so will allow the purchase of the Loans, offer to
repay in full all such Bank Indebtedness and repay all Bank Indebtedness of each
lender who has accepted such offer, or (ii) obtain the requisite consent under
the agreements governing such Bank Indebtedness to permit the repurchase of the
Loans.
SECTION
2.12. Fees
.
(a) The
Borrower agrees to pay to the Administrative Agent and the Joint Lead Arrangers,
for their respective accounts, the fees set forth in the Fee Letter, as amended,
restated, supplemented or otherwise modified from time to time, at the times
specified therein (the “Fees”).
(b) All
the 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. Once paid, none of the Fees shall be refundable under any
circumstances, except as expressly set forth in the Fee Letter.
SECTION
2.13. Interest
.
(a) The
Loans comprising each ABR Borrowing shall bear interest at the ABR plus the
Applicable Margin.
(b) Subject
to Sections 2.14 and 2.20, 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
paragraphs (a) and (b) of this Section 2.13 or anything to the contrary provided
herein, the interest rate on the Loans shall not exceed the Rate Cap (plus, for the
avoidance of doubt, payments made in respect thereof pursuant to
Section 2.17, increases pursuant to Section 2.13(d) and amounts owed
in respect of the Registration Rights Agreement).
(d) Notwithstanding
the foregoing, if any principal of or interest on any Loan or any Fees or other
amount payable by the Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, at a rate per annum equal to (i) in
the case 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, 2% plus the rate applicable to ABR Loans as
provided in paragraph (a) of this Section; provided that this
paragraph (d) shall not apply to any Event of Default that has been waived
by the Lenders pursuant to Section 9.08.
-54-
(e) Accrued
interest on each Loan shall be payable in arrears (i) on each Interest Payment
Date for such Loan, (ii) in the case of Bridge Loans, on the Bridge Loan
Maturity Date and (iii) in the case of Rollover Loans, on an Exchange Date
and/or on the Rollover Loan Maturity Date; provided that (x)
interest accrued pursuant to paragraph (d) of this Section shall be payable on
demand, (y) in the event of any repayment or prepayment of any Loan, accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment, and (z) 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.
(f) All
interest hereunder shall be computed on the basis of a year of 360 days, except
that interest computed by reference to the ABR at times when the ABR 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 ABR, Adjusted LIBO Rate or LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
(g) During
the occurrence and continuance of an Event of Default, Eurocurrency Loans shall
automatically be converted to ABR Loans at the end of the Interest Period in
which such Event of Default first occurred.
SECTION
2.14. Alternate Rate of
Interest
. If
prior to the commencement of any Interest Period for a Eurocurrency
Borrowing:
(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 Required Lenders 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 Borrower and the Lenders
by telephone or telecopy as promptly as practicable thereafter and, until the
Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, if any Borrowing
Request requests a Eurocurrency Borrowing, such Borrowing shall be made as an
ABR 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
(ii) impose
on any Lender or the London interbank market any other condition affecting this
Agreement or Eurocurrency Loans made by such Lender;
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 of maintaining its obligation to
make any such Loan) or to reduce the amount of any sum received or receivable by
such Lender hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction
suffered.
-55-
(b) If
any Lender 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 capital
or on the capital of such Lender’s holding company, if any, as a consequence of
this Agreement or the Loans made by, such Lender to a level below that which
such Lender or such Lender’s holding company could have achieved but for such
Change in Law (taking into consideration such Lender’s policies and the policies
of such Lender’s holding company with respect to capital adequacy), then from
time to time the Borrower shall pay to such Lender such additional amount or
amounts as will compensate such Lender or such Lender’s holding company for any
such reduction suffered.
(c) A
certificate of a Lender setting forth the amount or amounts necessary to
compensate such Lender or its holding company, as specified in
paragraph (a) or (b) of this Section 2.15 shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
(d) Promptly
after any Lender has determined that it will make a request for increased
compensation pursuant to this Section 2.15, such Lender shall notify the
Borrower thereof. Failure or delay on the part of any Lender to
demand compensation pursuant to this Section 2.15 shall not constitute a waiver
of such Lender’s right to demand such compensation; provided that the
Borrower shall not be required to compensate a Lender pursuant to this Section
2.15 for any increased costs or reductions incurred more than 180 days prior to
the date that such Lender notifies the Borrower of the Change in Law giving rise
to such increased costs or reductions and of such Lender’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.
(e) The
foregoing provisions of this Section 2.15 shall not apply in the case of any
Change in Law in respect of Taxes, which shall instead be governed by Section
2.17.
SECTION
2.16. Break Funding
Payments
. In
the event of (a) the payment of any principal of any Eurocurrency 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
-56-
request
by the Borrower pursuant to Section 2.19, then, in any such event, the Borrower
shall compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurocurrency Loan, such loss, cost or expense
to any Lender shall be deemed to be the amount determined by such Lender (it
being understood that the deemed amount shall not exceed the actual amount) 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 dollars 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 the Borrower and shall
be conclusive absent manifest error. The Borrower shall pay such
Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
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
2.17) the Administrative Agent or any Lender, 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 Administrative Agent and each Lender, within 10
days after written demand therefor, for the full amount of any Indemnified Taxes
or Other Taxes paid by the Administrative Agent or such Lender, 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 2.17) 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 by the Administrative Agent on its own behalf, on behalf of another Agent or
on behalf of a Lender, 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 laws of the jurisdiction in which the Borrower is located, or any
treaty to which such jurisdiction is a party, with respect to payments under
this Agreement shall deliver to the Borrower (with a copy
--
-57-
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 the 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) Each
Lender shall deliver to the Borrower and the Administrative Agent on the date on
which such Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the reasonable request of the Borrower or the Administrative
Agent), two original copies of whichever of the following is
applicable: (i) duly completed copies of Internal Revenue Service
Form W-8BEN (or any subsequent versions thereof or successors thereto), claiming
eligibility for benefits of an income tax treaty to which the United States of
America is a party, (ii) duly completed copies of Internal Revenue Service Form
W-8ECI (or any subsequent versions thereof or successors thereto), (iii) in the
case of a Lender claiming the benefits of the exemption for portfolio interest
under section 871(h) or 881(c) of the Code, (x) a certificate to the effect
that, for United States federal income tax purposes, such Lender is not (A) a
“bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10
percent shareholder” of the Borrower within the meaning of
section 871(h)(3)(B) or 881(c)(3)(B) of the Code, or (C) a “controlled
foreign corporation” described in section 881(c)(3)(C) of the Code and
that, accordingly, such Lender qualifies for such exemption and (y) duly
completed copies of Internal Revenue Service Form W-8BEN (or any
subsequent versions thereof or successors thereto), (iv) duly completed copies
of Internal Revenue Service Form W-8IMY, together with forms and certificates
described in clauses (i) through (iii) above (and additional Form W-8IMYs) as
may be required or (v) any other form prescribed by applicable law as a basis
for claiming exemption from or a reduction in United States federal withholding
tax duly completed together with such supplementary documentation as may be
prescribed by applicable law to permit the Borrower to determine the withholding
or deduction required to be made. In addition, in each of the
foregoing circumstances, each Lender shall deliver such forms, if legally
entitled to deliver such forms, promptly upon the obsolescence, expiration or
invalidity of any form previously delivered by such Lender. Each
Lender shall promptly notify the Borrower at any time it determines that it is
no longer in a position to provide any previously delivered certificate to
the Borrower (or any other form of certification adopted by the
United States of America or other taxing authorities for such
purpose). In addition, each Lender shall deliver to the Borrower and
the Administrative Agent two copies of Internal Revenue Service Form W-9 (or any
subsequent versions thereof or successors thereto) on or before the date such
Lender becomes a party and upon the expiration of any form previously delivered
by such Lender. Notwithstanding any other provision of this
paragraph, a Lender shall not be required to deliver any form pursuant to this
paragraph that such Lender is not legally able to deliver.
(g) If
the Administrative Agent or a Lender receives 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 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 the
Administrative Agent or such Lender (including any Taxes imposed with respect to
such refund) as is determined by the Administrative Agent or such Lender, as
applicable, 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 the Administrative 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 the Administrative Agent or such Lender in the event
the Administrative Agent or such
Lender is required to repay such refund to such Governmental
Authority. This Section 2.17(g) shall not be construed to
require the Administrative 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, the Borrower shall make each payment required to be made by
it hereunder (whether of principal, interest or fees or of amounts payable under
Section 2.15, 2.16 or 2.17, or otherwise) prior to 2:00 p.m., New York City
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 Borrower by the Administrative Agent, except that payments
pursuant to Sections 2.15, 2.16, 2.17, 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. 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 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.
-58-
(b) If
at any time insufficient funds are received by and available to the
Administrative Agent from the Borrower to pay fully all amounts of principal,
interest and fees then due from the Borrower hereunder, such funds shall be
applied (i) first, towards
payment of interest and fees then due from the 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 then due from the Borrower hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal 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 Loans, resulting in such Lender receiving payment of a greater proportion of
the aggregate amount of its 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 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 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 the 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 to any assignee
or participant, other than to the Borrower or any of its Subsidiaries or
Affiliates thereof (as to which the provisions of this paragraph (c) shall
apply). The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of set-off
and counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of the Borrower in the amount of such
participation.
(d) Unless
the Administrative Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Administrative Agent for
the account of the Lenders hereunder that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event,
if the Borrower has not in fact made such payment, then each of the Lenders
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender 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 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.
-59-
(e) If
any Lender shall fail to make any payment required to be made by it pursuant to
Section 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 if the 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 or
2.17, 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. The 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 if the 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 the 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) the
Borrower shall have received the prior written consent of the Administrative
Agent, which consent shall not unreasonably be withheld, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal of its
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 the Borrower (in the case of all other amounts)
and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.15 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 the Borrower may have against any Lender that is a Defaulting
Lender.
-60-
(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 the Borrower shall have the right
(unless such Non-Consenting Lender grants such consent) to replace such
Non-Consenting Lender by deeming such Non-Consenting Lender to have assigned its
Loans, and its Commitments hereunder to one or more Assignees reasonably
acceptable to the Administrative Agent (unless such assignee is a Lender, an
Affiliate of a Lender or an Approved Fund); provided
that: (i) all Obligations of the Borrower owing to such
Non-Consenting Lender being replaced shall be paid in full to such
Non-Consenting Lender concurrently with such assignment, and (ii) 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. No action by or consent of the Non-Consenting
Lender shall be necessary in connection with such assignment, which shall be
immediately and automatically effective upon payment of such purchase
price. In connection with any such assignment the Borrower,
Administrative Agent, such Non-Consenting Lender and the replacement Lender
shall otherwise comply with Section 9.04; provided, that if
such Non-Consenting Lender does not comply with Section 9.04 within three
Business Days after Borrower’s request, compliance with Section 9.04 shall not
be required to effect such assignment.
SECTION
2.20. Illegality
. 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 such Lender or its applicable Lending Office to make or maintain
any Eurocurrency Loans, then, on notice thereof by such Lender to the 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 Borrower that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, the Borrower shall upon
demand from such Lender (with a copy to the Administrative Agent), convert all
Eurocurrency Borrowings of such Lender to ABR Borrowings 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 conversion,
the Borrower shall also pay accrued interest on the amount so
converted.
ARTICLE
III
Representations
and Warranties
On the
Closing Date (after giving effect to the Transactions, except as set forth in
Section 4.02(l)), the Borrower represents and warrants to each of the Lenders
that:
SECTION
3.01. Organization;
Powers
. Except
as set forth on Schedule 3.01,
the Borrower and each of the Material Subsidiaries (a) is a partnership, limited
liability company or corporation duly organized, validly existing and in good
standing (or, if applicable in a foreign jurisdiction, enjoys the equivalent
status under the laws of any jurisdiction of organization outside the United
States) under the laws of the jurisdiction of its organization, (b) has all
requisite power and authority to own its property and assets and to carry on its
business as now conducted, (c) is qualified to do business in each jurisdiction
where such qualification is required, except where the failure so to qualify
would 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 Loan Documents and each other agreement or instrument contemplated
thereby to which it is or will be a party and, in the case of the Borrower, to
borrow and otherwise obtain credit hereunder.
SECTION
3.02. Authorization
. The
execution, delivery and performance by the Borrower and each of the Subsidiary
Loan Parties of each of the Loan Documents, the Exchange Notes Indenture, the
Exchange Notes (and the related guarantees) and the Registration Rights
Agreement to which it is, or will be, as applicable, a party, and the borrowings
hereunder and the transactions forming a part of the Transactions hereunder and
thereunder (a) have been duly authorized by all corporate, stockholder,
partnership or limited liability company action required to be obtained by the
Borrower and such Subsidiary Loan Parties 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 (including any partnership,
limited liability company or operating agreements) or by-laws of the Borrower or
any such Subsidiary Loan Party, (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 the Borrower or any such Subsidiary Loan Party 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(b), would 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 property or assets now owned or hereafter acquired by the Borrower or any
such Subsidiary Loan Party, other than the Liens created by the Loan Documents
and Permitted Liens.
-61-
SECTION
3.03. Enforceability
. This
Agreement has been duly executed and delivered by the Borrower and constitutes,
and each other Loan Document, the Exchange Notes Indenture, the Exchange Notes
(and the related guarantees) and the Registration Rights Agreement when executed
and delivered by each Loan Party that is party thereto (assuming execution and
delivery of such documents occurred as of the Closing Date) would 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 required in connection with the Transactions or
would be required in connection with the execution, delivery and performance of
the Exchange Notes Indenture, the Exchange Notes (and the related guarantees)
and the Registration Rights Agreement (assuming that execution, delivery and
performance of such documents occurred as of the Closing Date), the perfection
or maintenance of the Liens created under the Security Documents or the exercise
by any Agent or any Lender of its rights under the Loan Documents or the
remedies in respect of the Collateral, 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) the registration requirements
with the SEC contemplated by the Registration Rights Agreement, (f) such
actions, consents and approvals the failure of which to be obtained or made
would not reasonably be expected to have a Material Adverse Effect and (g)
filings or other actions listed on Schedule 3.04.
SECTION
3.05. Financial
Statements
.
(a) The
unaudited pro forma consolidated financial
information (the “Pro
Forma Financial Statements”) and pro forma adjusted EBITDA (the
“Pro Forma Adjusted
EBITDA”), for the twelve months ended on or about September 29,
2007, copies of which have heretofore been furnished on or before the date
hereof to each Lender as of the date hereof, have been prepared giving effect
(as if such events had occurred on such date) to the
Transactions. Each of the Pro Forma Financial Statements and the Pro
Forma Adjusted EBITDA has been prepared in good faith based on assumptions
believed by the Borrower to have been reasonable as of the date of delivery
thereof (it being understood that such assumptions are based on good faith
estimates of certain items and that the actual amount of such items on the
Closing Date is subject to change), and presents fairly in all material respects
on a Pro Forma Basis (as defined in the Term Loan Credit Agreement as in effect
on the date hereof) the estimated financial position of the Borrower and its
consolidated Subsidiaries as at September 29, 2007, assuming that the
Transactions, the
Xxxxx Covalence Merger and the Captive Acquisition, had actually occurred
at such date, and the results of operations of Borrower and its consolidated
subsidiaries for the twelve-month period ended September 29, 2007, assuming
that the Transactions, the Xxxxx Covalence Merger and
the Captive Acquisition, had actually occurred on the first day of such
twelve-month period.
(b) The
consolidated or combined balance sheets of the Borrower at September 29, 2007
and September 30, 2006, and the related consolidated or combined statements of
operations for the year ended September 29, 2007, period from February 17 to
September 30, 2006, period from October 1, 2005 to February 16, 2006 and the
year ended September 30, 2005, consolidated or combined statements of changes in
stockholders’ equity and comprehensive income (loss) for the year ended
September 29, 2007, period from February 17 to September 30, 2006, period from
October 1, 2005 to February 16, 2006 and the year ended September 30, 2005 and
consolidated or combined statements of cash flows for year ended September 29,
2007, period from February 17 to September 30, 2006, period from October 1, 2005
to February 16, 2006 and the year ended September 30, 2005, reported on by and
accompanied by a report from independent accountants, copies of which have
heretofore been furnished to each Lender, present fairly in all material
respects the combined financial position of Covalence or the Borrower, as
applicable, as at such date and the combined results of operations,
shareholders’ equity and cash flows of Covalence and its predecessor or the
Borrower for the years then ended.
SECTION
3.06. No Material Adverse
Effect
. Since
September 29, 2007, there has been no event, development or circumstance that
has or would reasonably be expected to have a Material Adverse
Effect.
SECTION
3.07. Title to Properties;
Possession Under Leases
.
(a) Each
of the Borrower and the Subsidiaries has valid fee simple title to, or valid
leasehold interests in, or easements or other limited property interests in, all
its Real Properties (including all Mortgaged Properties) and has valid title to
its personal property and assets, in each case, except for Permitted Liens and
except for defects in title that do not materially interfere with its ability to
conduct its business as currently conducted or to utilize such properties and
assets for their intended purposes and except where the failure to have such
title would 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 Permitted Liens.
(b) Each
of the Borrower and the Subsidiaries has complied with all obligations under all
leases to which it is a party, except where the failure to comply would not
reasonably be expected to have, individually or in the aggregate, 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 would not
reasonably be
expected to have a Material Adverse Effect. Except as set forth on
Schedule 3.07(b),
each of the Borrower and each of the 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 would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
(c) As
of the Closing Date, none of the Borrower or the Subsidiaries has received any
notice of any pending or contemplated condemnation proceeding affecting any
material portion of the Mortgaged Properties or any sale or disposition thereof
in lieu of condemnation that remains unresolved as of the Closing
Date.
(d) None
of the Borrower or the 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 6.03.
-62-
SECTION
3.08. Subsidiaries
.
(a) Schedule 3.08(a)
sets forth as of the Closing Date the name and jurisdiction of incorporation,
formation or organization of each subsidiary of the Borrower and, as to each
such subsidiary, the percentage of each class of Equity Interests owned by the
Borrower or by any such subsidiary.
(b) As
of the Closing Date, there are no outstanding subscriptions, options, warrants,
calls, rights or other agreements or commitments (other than stock options or
stock appreciation rights granted to employees or directors and directors’
qualifying shares) of any nature relating to any Equity Interests of the
Borrower or any of the Subsidiaries, except rights of employees to purchase
Equity Interests of the Borrower in connection with the Transactions or as set
forth on Schedule 3.08(b).
SECTION
3.09. Litigation; Compliance with
Laws
.
(a) There
are no actions, suits or proceedings at law or in equity or, to the knowledge of
the Borrower, investigations by or on behalf of any Governmental Authority or in
arbitration now pending, or, to the knowledge of the Borrower, threatened in
writing against or affecting the Borrower or any of the Subsidiaries or any
business, property or rights of any such Person which would reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect.
(b) None
of the Borrower, the 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, ordinance, code or approval or any building
permit, but excluding any Environmental Laws, which are subject to
Section 3.16) or any restriction of record or agreement affecting any
Mortgaged Property, or is in default with respect to any judgment, writ,
injunction or decree of any Governmental Authority, where such violation or
default would reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect.
SECTION
3.10. Federal Reserve
Regulations
.
(a) None
of the Borrower or the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
(b) No
part of the proceeds of any Loan will be used, whether directly or indirectly,
and whether immediately, incidentally or ultimately, (i) to purchase or carry
Margin Stock or to extend credit to others for the purpose of purchasing or
carrying Margin Stock or to refund indebtedness orignally
incurred for such purpose, or (ii) 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
. None
of the Borrower and the Subsidiaries is an “investment company” as defined in,
or subject to regulation under, the Investment Company Act of 1940, as
amended.
SECTION
3.12. Use of
Proceeds
. The
Borrower will use the proceeds of the Bridge Loans, together with other cash, to
finance the Captive Acquisition, pay the Transaction Expenses, and for general
corporate purposes.
-63-
SECTION
3.13. Tax
Returns
. Except
as set forth on Schedule 3.13:
(a) Except
as would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, (i) each of the Borrower and the Subsidiaries has filed
or caused to be filed all federal, state, local and non-U.S. Tax returns
required to have been filed by it and (ii) taken as a whole, and each such Tax
return is true and correct;
(b) Each
of the Borrower and the Subsidiaries has timely paid or caused to be timely paid
all Taxes shown to be due and payable by it on the returns referred to in
clause (a) and all other Taxes or assessments (or made adequate provision
(in accordance with GAAP) for the payment of all Taxes due) with respect to all
periods or portions thereof ending on or before the Closing Date (except for
Taxes or assessments that are being contested in good faith by appropriate
proceedings in accordance with Section 5.03 and for which the Borrower or
any of the Subsidiaries (as the case may be) has set aside on its books adequate
reserves in accordance with GAAP), which Taxes, if not paid or adequately
provided for, would, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect; and
(c) Other
than as would not be, individually or in the aggregate, reasonably expected to
have a Material Adverse Effect: as of the Closing Date, with respect
to each of the Borrower and the Subsidiaries, there are no claims being asserted
in writing with respect to any Taxes.
SECTION
3.14. No Material
Misstatements
.
(a) All
written information (other than the Projections, estimates and information of a
general economic nature or general industry nature) (the “Information”)
concerning the Borrower, the Subsidiaries, the Transactions and any other
transactions contemplated hereby 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 Transactions or the other
transactions contemplated hereby, when taken as a whole, was true and correct in
all material respects, as of the date such Information was furnished to the
Lenders and as of the Closing Date and did not, taken as a whole, 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, taken
as a whole, 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 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 Borrower to be
reasonable as of the date thereof (it being understood that actual results may
vary materially from the
Projections), as of the date such Projections and estimates were furnished to
the Lenders and as of the Closing Date, and (ii) as of the Closing Date, have
not been modified in any material respect by the Borrower.
SECTION
3.15. Employee Benefit
Plans
.
(a) Except
as would not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect: (i) each Plan is in compliance in all
material respects with the applicable provisions of ERISA and the Code; (ii) no
Reportable Event has occurred during the past five years as to which the
Borrower, any of its Subsidiaries or any ERISA Affiliate was required to file a
report with the PBGC, other than reports that have been filed; (iii) no Plan has
any Unfunded Pension Liability in excess of $50.0 million; (iv) no ERISA Event
has occurred or is reasonably expected to occur; and (v) none of the Borrower,
the Subsidiaries and the ERISA Affiliates (A) 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 or (B) has incurred or is reasonably expected to incur any Withdrawal
Liability to any Multiemployer Plan.
-64-
(b) Each
of the Borrower and the 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 would not reasonably be expected to have a Material Adverse
Effect.
SECTION
3.16. Environmental
Matters
. Except
as set forth in Schedule 3.16
and except as to matters that would 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 Borrower or any of its Subsidiaries, and there are no judicial,
administrative or other actions, suits or proceedings pending or, to the
Borrower’s knowledge, threatened which allege a violation of or liability under
any Environmental Laws, in each case relating to the Borrower or any of its
Subsidiaries, (ii) each of the Borrower and its Subsidiaries has all
environmental permits, licenses and other approvals necessary for its operations
to comply with all applicable Environmental Laws and is, and during the term of
all applicable statutes of limitation, has been, in compliance with the terms of
such permits, licenses and other approvals and with all other applicable
Environmental Laws, (iii) to the Borrower’s knowledge, no Hazardous Material is
located at, on or under any property currently owned, operated or leased by the
Borrower or any of its Subsidiaries that would reasonably be expected to give
rise to any cost, liability or obligation of the Borrower or any of its
Subsidiaries under any Environmental Laws, and no Hazardous Material has been
generated, owned, treated, stored, handled or controlled by the Borrower or any
of its Subsidiaries and transported to or Released at any location in a manner
that would reasonably be expected to give rise to any cost, liability or
obligation of the Borrower or any of its Subsidiaries under any Environmental
Laws, and (iv) there are no agreements in which the Borrower or any of its
Subsidiaries has expressly assumed or undertaken responsibility for any known or
reasonably likely 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 Closing Date.
SECTION
3.17. Security
Documents
.
(a) The
Collateral Agreement is 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 and proceeds thereof. In
the case of the Pledged Collateral described in the Collateral Agreement, when
certificates or promissory notes, as applicable, representing such Pledged
Collateral are delivered
to the Possessory Collateral Agent, and in the case of the other Collateral
described in the Collateral Agreement (other than the Intellectual Property (as
defined in the Collateral Agreement)), when financing statements and other
filings specified in the Perfection Certificate are filed in the offices
specified in 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 and, subject to Section 9-315 of the New York Uniform Commercial
Code, the proceeds thereof, as security for the Obligations to the extent
perfection can be obtained by filing Uniform Commercial Code financing
statements, in each case prior and superior in right to any other Person (except
Permitted Liens).
-65-
(b) When
the 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 Possessory 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 all domestic
Intellectual Property, in each case prior and superior in right to any other
Person (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) (except Permitted Liens).
(c) Each
Foreign Pledge Agreement, if any, shall 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 and proceeds
thereof to the fullest extent permissible under applicable law. In
the case of the Pledged Collateral described in a Foreign Pledge Agreement, when
certificates representing such Pledged Collateral (if any) are delivered to the
Possessory Collateral Agent, 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 and the
proceeds thereof, as security for the Obligations, in each case prior and
superior in right to any other Person.
(d) The
Mortgages to be 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 valid 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 Permitted Liens.
(e) Notwithstanding
anything herein (including this Section 3.17) or in any other Loan Document to
the contrary, other than to the extent set forth in the applicable Foreign
Pledge Agreements, neither the Borrower nor any other Loan Party makes any
representation or warranty as to the effects of perfection or non-perfection,
the priority or the enforceability of any pledge of or security interest in any
Equity Interests of any Foreign Subsidiary that is not a Loan Party, or as to
the rights and remedies of the Agents or any Lender with respect thereto, under
foreign law.
SECTION
3.18. Location of Real Property
and Leased Premises
.
(a) The
Perfection Certificate lists completely and correctly, in all material respects,
as of the Closing Date all material Real Property owned by the Borrower and the
Subsidiary Loan Parties and the
addresses thereof. As of the Closing Date, the Borrower and the
Subsidiary Loan Parties own in fee all the Real Property set forth as being
owned by them on the Perfection Certificate.
-66-
(b) The
Perfection Certificate lists completely and correctly in all material respects,
as of the Closing Date, all material real property leased by the Borrower and
the Subsidiary Loan Parties and the addresses thereof. As of the
Closing Date, the Borrower and the Subsidiary Loan Parties have in all material
respects valid leases in all the real property set forth as being leased by them
on the Perfection Certificate.
SECTION
3.19. Solvency
.
(a) Immediately
after giving effect to the Transactions on the Closing Date, (i) the fair value
of the assets of the Borrower (individually) and the Borrower and its
Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts
and liabilities, direct, subordinated, contingent or otherwise, of the Borrower
(individually) and the Borrower and its Subsidiaries on a consolidated basis,
respectively; (ii) the present fair saleable value of the property of the
Borrower (individually) and the Borrower and its Subsidiaries on a consolidated
basis will be greater than the amount that will be required to pay the probable
liability of the Borrower (individually) and the Borrower and its Subsidiaries
on a consolidated basis, respectively, on their debts and other liabilities,
direct, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (iii) the Borrower (individually) and
the Borrower and its Subsidiaries on a consolidated basis will be able to pay
their debts and liabilities, direct, subordinated, contingent or otherwise, as
such debts and liabilities become absolute and matured; and (iv) the Borrower
(individually) and the Borrower and its Subsidiaries on a consolidated basis
will not have unreasonably small capital with which to conduct the businesses in
which they are engaged as such businesses are now conducted and are proposed to
be conducted following the Closing Date.
(b) On
the Closing Date, the Borrower does not intend to, and does not believe that it
or any of its 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
. Except
as, individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect: (a) there are no strikes or other labor
disputes pending or threatened against the Borrower or any of the Subsidiaries;
(b) the hours worked and payments made to employees of the Borrower and the
Subsidiaries have not been in violation of the Fair Labor Standards Act or any
other applicable law dealing with such matters; and (c) all payments due from
the Borrower or any of the Subsidiaries or for which any claim may be made
against the Borrower or any of the 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 the Borrower or such Subsidiary to the
extent required by GAAP. Except as, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect, the
consummation of the Transactions will not give rise to a right of termination or
right of renegotiation on the part of any union under any material collective
bargaining agreement to which the Borrower or any of the Subsidiaries (or any
predecessor) is a party or by which the Borrower or any of the Subsidiaries (or
any predecessor) is bound.
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 the Borrower or the Subsidiaries as of the Closing
Date. As of such date, such insurance is in full force and
effect.
SECTION
3.22. No
Default
. No
Default or Event of Default has occurred and is continuing or would result from
the consummation of the transactions contemplated by this Agreement or any other
Loan Document.
SECTION
3.23. Intellectual Property;
Licenses, etc.
Except
as would not reasonably be expected to have a Material Adverse Effect and as set
forth in Schedule
3.23, (a) the Borrower and each of its Subsidiaries owns, or possesses
the right to use, all of the patents, patent rights, trademarks, service marks,
trade names, copyrights and any and all applications or registrations for any of
the foregoing (collectively, “Intellectual Property
Rights”) that are reasonably necessary for the operation of their
respective businesses, without conflict with the rights of any other Person, (b)
to the best knowledge of the Borrower, no intellectual property right,
proprietary right, product, process, method, substance, part, or other material
now employed, sold or offered by or contemplated to be employed, sold or offered
by the Borrower or its Subsidiaries infringes upon any rights held by any other
Person, and (c) no claim or litigation regarding any of the foregoing is pending
or, to the best knowledge of the Borrower, threatened.
-67-
SECTION
3.24. Senior
Debt
. The
Obligations constitute “Senior Debt” (or the equivalent thereof) and “Designated
Senior Debt” (or the equivalent thereof) under the Senior Subordinated Notes
Indentures.
ARTICLE
IV
Conditions
of Lending
The
obligations of the Lenders to make Bridge Loans hereunder on the Closing Date
are subject to the satisfaction of the following conditions:
(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 and the Lenders on
the Closing Date, a favorable written opinion of (i) Wachtell, Lipton, Xxxxx
& Xxxx, special counsel for the Loan Parties, in form and substance
reasonably satisfactory to the Administrative Agent, (ii) Xxxxxxxx, Xxxxxx &
Finger, Delaware local counsel for the Loan Parties, in form and substance
reasonably satisfactory to the Administrative Agent, (iii) Xxxxxxx, Fine, Xxxxxx
& Xxxxxxx, Indiana local counsel for the Loan Parties, in form and substance
reasonably satisfactory to the Administrative Agent, (iv) Xxxxxxxx Xxxx LLP,
Ohio local counsel for the Loan Parties, in form and substance reasonably
satisfactory to the Administrative Agent, in form and substance reasonably
satisfactory to the Administrative Agent, (v) Xxxxxxxxxx Xxxxxxx PC, New Jersey
local counsel for the Loan Parties, in form and substance reasonably
satisfactory to the Administrative Agent, in form and substance reasonably
satisfactory to the Administrative Agent, (vi) Xxxxxxx LLP, Maryland local
counsel for the Loan Parties, in form and substance reasonably satisfactory to
the Administrative Agent, (vii) Xxxx Xxxxxxxx, in house counsel for certain of
the Loan Parties, and (viii) Xxxxxx Curtain, A Professional Association, special
counsel for certain of the Loan Parties, in form and substance reasonably
satisfactory to the Administrative Agent, in form and substance reasonably
satisfactory to the Administrative Agent, in each case (A) dated the Closing
Date, (B) addressed to the Administrative Agent and the Lenders and (C) in form
and substance reasonably satisfactory to the Administrative Agent and covering
such other matters relating to the Loan Documents as the Administrative Agent
shall reasonably request.
(c) The
Administrative Agent shall have received in the case of each Loan Party each of
the items referred to in clauses (i), (ii), (iii) and (iv)
below:
(i) a
certificate as to the good standing (to the extent such concept or a similar
concept exists under the laws of the jurisdiction of organization of such Loan
Party) of each such Loan Party as of a recent date from such Secretary of State
(or other similar official);
-68-
(ii) a
certificate of the Secretary or Assistant Secretary or similar officer of each
Loan Party dated the Closing Date in the form of Exhibit I hereto.
(d) The
elements of the Collateral and Guarantee Requirement required to be satisfied on
the Closing Date shall have been satisfied (other than in the case of any
security interest in the intended Collateral or any deliverable related to the
perfection of security interests in the intended Collateral (other than any
Collateral the security interest in which may be perfected by the filing of a
UCC financing statement or the delivery of stock certificates and the security
agreement giving rise to the security interest therein) that is not provided on
the Closing Date after the Borrower’s use of commercially reasonable efforts to
do so, which security interest or deliverable shall be delivered within the time
periods specified with respect thereto in Section 5.01 of the Collateral
Agreement), and the Administrative Agent shall have received a completed
Perfection Certificate, dated the Closing Date and signed by a Responsible
Officer of the Company, together with all attachments contemplated thereby,
including the lien search results.
(e) The
Captive Acquisition shall have been consummated or shall be consummated
simultaneously with or immediately following the closing under this Agreement in
accordance with the terms and conditions of the Captive Acquisition as set forth
in the Captive Merger Documents, without material amendment, supplement,
modification or waiver thereof which is materially adverse to the Lenders
without the prior written consent of the Joint Lead Arrangers.
(f) The
Lenders shall have received (i) the financial statements referred to in
Section 3.05; (ii) unaudited consolidated balance sheets of the Borrower
for each fiscal quarter ended after the close of its most recent fiscal year and
at least 45 days prior to the Closing Date, and the related audited combined
statements of income, stockholders’ equity and cash flows for such fiscal
quarters, copies of which have heretofore been furnished to each Lender, present
fairly in all material respects the combined financial position of the Borrower,
as applicable, as at such date and the combined results of operations,
shareholders’ equity and cash flows of the Borrower for the quarters then ended
and (iii) to the extent available to the Borrower (x) the summary annual balance
sheets of Captive Holdings for each fiscal year ended after the close of its
most recent fiscal year and at least 90 days prior to the Closing Date, and the
related audited combined statements of income, stockholders’ equity and cash
flows for such fiscal year and (y) the summary quarterly balance sheets of
Captive Holdings for each fiscal quarter ended after the close of its most
recent fiscal year and at least 45 days prior to the Closing Date, and the
related audited combined statements of income, stockholders’ equity and cash
flows for such fiscal year.
(g) On
the Closing Date, after giving effect to the Transactions and the other
transactions contemplated hereby, the Borrower and the Subsidiaries shall have
outstanding no Indebtedness other than (i) the Loans under this Agreement, (ii)
the Senior Subordinated Notes, (iii) the Second Priority Notes, (iv) the
extensions of credit under the Revolving Credit Agreement, (v) the loans under
the Term Loan Credit Agreement and (vi) other Indebtedness permitted pursuant to
Section 6.01.
(h) The
Lenders shall have received a solvency certificate substantially in the form of
Exhibit B
and signed by the Chief Financial Officer of the Borrower confirming the
solvency of Borrower and its Subsidiaries on a consolidated basis after giving
effect to the Transactions on the Closing Date.
(i) The
Agents shall have received all fees payable thereto or to any 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
Xxxxxx Xxxxxx & Xxxxxxx LLP and local counsel) required
to be reimbursed or paid by the Loan Parties hereunder or under any Loan
Document.
-69-
(j) Each
of (i) the Collateral Agreement, (ii) the Senior Lender Intercreditor Agreement,
(iii) the Second Priority Intercreditor Agreement and (iv) the Senior Fixed
Lender Intercreditor Agreement shall have been executed and delivered by the
respective parties thereto and shall have become effective, and the
Administrative Agent shall have received evidence satisfactory to it of such
execution and delivery and effectiveness.
(k) The
Administrative Agent shall have received 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).
(l) The
conditions in Section 7.2(a) of the Captive Merger Agreement (but only with
respect to representations and warranties that are material to the interests of
the Lenders)
shall be satisfied, and the representations and warranties set forth in
Sections 3.01(b) and (d), 3.02(a), 3.02(b)(i)(C), 3.02(b)(ii), 3.03, 3.10, 3.11
and 3.24 shall be true and correct.
(m) Since
December 31, 2006, there not having occurred any events, changes or developments
which, individually or in the aggregate, have had or would reasonably be
expected to have a Material Adverse Effect (as defined in the Captive Merger
Agreement).
(n) The
Administrative Agent shall have received copies of pay-off letters in connection
with the Captive Credit Agreement, the Captive Second Lien Credit Agreement and
the Captive Note, in form and substance reasonably satisfactory to the
Administrative Agent.
(o) The
Lenders shall have received all documentation and other information that has
been (i) requested in writing not less than 10 business days prior to the
Closing Date and (ii) required by regulatory authorities under applicable “know
your customer” and anti-money laundering rules and regulations, including the
United States PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October
26, 2001)) (the “Patriot
Act”).
For
purposes of determining compliance with the conditions specified in this Article
IV, each Lender shall be deemed to have consented to, approved or accepted or to
be satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders unless
an officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
prior to the Closing Date specifying its objection thereto and such Lender shall
not have made available to the Administrative Agent such Lender’s ratable
portion of the initial Borrowing.
ARTICLE
V
Affirmative
Covenants
Subject
to Section 9.21, the Borrower covenants and agrees with each Lender that so long
as this Agreement shall remain in effect (other than in respect of contingent
indemnification obligations for which no claim has been made) and until the
Commitments have been terminated and the Obligations (including 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, unless the Required Lenders
shall otherwise consent in writing, the Borrower will, and will cause each of
the Material Subsidiaries to:
-70-
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, in the case of a Subsidiary of the
Borrower, where the failure to do so would not reasonably be expected to have a
Material Adverse Effect, and 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 the Borrower or a Wholly Owned Subsidiary of the Borrower in
such liquidation or dissolution; provided that
Subsidiary Loan Parties may not be liquidated into Subsidiaries that are not
Loan Parties and Domestic Subsidiaries may not be liquidated into Foreign
Subsidiaries.
(b) Except
where the failure to do so would not reasonably be expected to have a Material
Adverse Effect, do or cause to be done all things necessary to (i) lawfully
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 to the normal
conduct of its business and (ii) 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) Maintain,
with financially sound and reputable insurance companies, insurance in such
amounts and against such risks as are customarily maintained by similarly
situated companies engaged in the same or similar businesses operating in the
same or similar locations and cause the Administrative Agent to be listed as a
co-loss payee on property and casualty policies and as an additional insured on
liability policies.
(b) With
respect to any Mortgaged Properties, 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 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.
(c) In
connection with the covenants set forth in this Section 5.02, it is understood
and agreed that:
--
-71-
(i) none
of the Administrative Agent, the Lenders, 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 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 Administrative Agent, the Lenders, or their agents or
employees. If, however, the insurance policies, as a matter of the
internal policy of such insurer, do not provide waiver of subrogation rights
against such parties, as required above, then the Borrower, on behalf of itself
and behalf of each of its subsidiaries, hereby agrees, to the extent permitted
by law, to waive, and further agrees to cause each of their Subsidiaries to
waive, its right of recovery, if any, against the Administrative Agent, the
Lenders, and their agents and employees; and
(ii) the
designation of any form, type or amount of insurance coverage by the
Administrative Agent under this Section 5.02 shall in no event be deemed a
representation, warranty or advice by the Administrative Agent or the Lenders
that such insurance is adequate for the purposes of the business of the Borrower
and the Subsidiaries or the protection of their properties.
SECTION
5.03. Taxes
. Pay
and discharge promptly when due all material Taxes, 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 which, if unpaid, might
give rise to a Lien upon such properties or any part thereof; provided, however, that such
payment and discharge shall not be required with respect to any such Tax or
claim so long as the validity or amount thereof shall be contested in good faith
by appropriate proceedings, and the Borrower or the affected Subsidiary, as
applicable, shall have set aside on its books reserves in accordance with GAAP
with respect thereto.
SECTION
5.04. Financial Statements,
Reports, etc.
Furnish
to the Administrative Agent (which will promptly furnish such information to the
Lenders):
(a) within
90 days (or, if applicable, such shorter period as the SEC shall specify for the
filing of annual reports on Form 10-K) after the end of each fiscal year, a
consolidated balance sheet and related statements of operations, cash flows and
owners’ equity showing the financial position of the Borrower and its
Subsidiaries as of the close of such fiscal year and the consolidated results of
its operations during such year and, beginning with the financials delivered
pursuant to this clause (a) in respect of the 2008 fiscal year, setting forth in
comparative form the corresponding figures for the prior fiscal year, which
consolidated balance sheet and related statements of operations, cash flows and
owners’ equity shall be audited by independent public accountants of recognized
national standing and accompanied by an opinion of such accountants (which
opinion shall not be qualified as to scope of audit or as to the status of the
Borrower or any Material Subsidiary as a going concern) to the effect that such
consolidated financial statements fairly present, in all material respects, the
financial position and results of operations of the Borrower and its
Subsidiaries on a consolidated basis in accordance with GAAP (it being
understood that the delivery by the Borrower of annual reports on Form 10-K of
the Borrower 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 (or, if applicable, such shorter period as the SEC shall specify for the
filing of quarterly reports on Form 10-Q) after the end of each of the first
three fiscal quarters of each fiscal year beginning with the fiscal quarter
ending December 31, 2007, for each of the first three fiscal quarters of each
fiscal year, (i) a consolidated balance sheet and related statements of
operations and cash flows showing the financial position of the Borrower and its
Subsidiaries as of the close of such fiscal quarter and the consolidated results
of its operations during
-72-
such
fiscal quarter and the then-elapsed portion of the fiscal year and setting forth
in comparative form the corresponding figures for the corresponding periods of
the prior fiscal year, and (ii) management’s discussion and analysis of
significant operational and financial developments during such quarterly period,
all of which shall be in reasonable detail and which consolidated balance sheet
and related statements of operations and cash flows shall be certified by a
Financial Officer of the Borrower on behalf of the Borrower as fairly
presenting, in all material respects, the financial position and results of
operations of the Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP (subject to normal year-end audit adjustments and the
absence of footnotes) (it being understood that the delivery by the Borrower of
quarterly reports on Form 10-Q of the Borrower 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 paragraphs (a) or
(b) above, a certificate of a Financial Officer of the Borrower (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, (ii)
setting forth the calculation and uses of the Cumulative Credit for the fiscal
period then ended if the Borrower shall have used the Cumulative Credit for any
purpose during such fiscal period, (iii) certifying a list of names of all
Immaterial Subsidiaries for the following fiscal quarter, that each Subsidiary
set forth on such list individually qualifies as an Immaterial Subsidiary and
that all such Subsidiaries in the aggregate (together with all Unrestricted
Subsidiaries) do not exceed the limitation set forth in clause (b) of the
definition of the term Immaterial Subsidiary, and (iv) certifying a list of
names of all Unrestricted Subsidiaries, that each Subsidiary set forth on such
list individually qualifies as an Unrestricted Subsidiary, and (y) concurrently
with any delivery of financial statements under paragraph (a) above, if the
accounting firm is not restricted from providing such a certificate by its
policies of its national office, 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 disclaim
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 the Borrower or any of the
Subsidiaries with the SEC, or after an initial public offering, distributed to
its stockholders generally, as applicable; provided, however, that such reports,
proxy statements, filings and other materials required to be delivered pursuant
to this clause (d) shall be deemed delivered for purposes of this Agreement when
posted to the website of the Borrower;
(e) within
90 days after the beginning of each fiscal year, a reasonably detailed
consolidated quarterly budget for such fiscal year (including a projected
consolidated balance sheet of the Borrower and its Subsidiaries as of the end of
the following fiscal year, and the related consolidated statements of projected
cash flow and projected income), including a description of underlying
assumptions with respect thereto (collectively, the “Budget”), which
Budget shall in each case be accompanied by the statement of a Financial Officer
of the Borrower to the effect that the Budget is based on assumptions believed
by such Financial Officer to be reasonable as of the date of delivery
thereof;
(f) upon
the reasonable request of the Administrative Agent, an updated Perfection
Certificate (or, to the extent such request relates to specified information
contained in the Perfe
-73-
tion
Certificate, such information) reflecting all changes since the date of the
information most recently received pursuant to this paragraph (f) or
Section 5.10(g);
(g) promptly,
from time to time, such other information regarding the operations, business
affairs and financial condition of the Borrower or any of the Subsidiaries, or
compliance with the terms of any Loan Document, or such consolidating financial
statements as in each case the Administrative Agent may reasonably request (for
itself or on behalf of any Lender);
(h) in
the event that (i) in respect of the Second Priority Notes or the Senior
Subordinated Notes, and any Refinancing Indebtedness with respect thereto, the
rules and regulations of the SEC permit the Borrower, Holdings or any Parent
Entity to report at Holdings’ or such Parent Entity’s level on a consolidated
basis and (ii) Holdings or such Parent Entity, as the case may be, is not
engaged in any business or activity, and does not own any assets or have other
liabilities, other than those incidental to its ownership directly or indirectly
of the capital stock of the Borrower and the incurrence of Indebtedness for
borrowed money (and, without limitation on the foregoing, does not have any
subsidiaries other than the Borrower and the Borrower’s Subsidiaries and any
direct or indirect parent companies of the Borrower that are not engaged in any
other business or activity and do not hold any other assets or have any
liabilities except as indicated above) such consolidated reporting at Holdings
or such Parent Entity’s level in a manner consistent with that described in
paragraphs (a) and (b) of this Section 5.04 for the Borrower will satisfy the
requirements of such paragraphs;
(i) promptly
upon request by the Administrative Agent, copies of: (i) each Schedule B
(Actuarial Information) to the most recent 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, a plan administrator or any governmental agency,
or provided to any Multiemployer Plan by the Borrower, a Subsidiary or any ERISA
Affiliate, 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
(j) promptly
upon Borrower or Subsidiaries becoming aware of any fact or condition which
would reasonably be expected to result in an ERISA Event, Borrower shall deliver
to Administrative Agent a summary of such facts and circumstances and any action
it or Subsidiaries intend to take regarding such facts or
conditions.
SECTION
5.05. Litigation and Other
Notices
. Furnish
to the Administrative Agent (which will promptly thereafter furnish to the
Lenders) written notice of the following promptly after any Responsible Officer
of the Borrower obtains actual knowledge thereof:
(a) any
Event of Default or Default, specifying the nature and extent thereof and the
corrective action (if any) proposed to be taken with respect
thereto;
(b) the
filing or commencement of, or any written threat or notice of intention of any
Person to file or commence, any action, suit or proceeding, whether at law or in
equity or by or before any Governmental Authority or in arbitration, against the
Borrower or any of the Subsidiaries as to which an adverse determination is
reasonably probable and which, if adversely determined, would reasonably be
expected to have a Material Adverse Effect;
(c) any
other development specific to the Borrower or any of the Subsidiaries that is
not a matter of general public knowledge and that has had, or would reasonably
be expected to have, a Material Adverse Effect; and
(d) the
development of any ERISA Event that, together with all other ERISA Events that
have developed or occurred, would 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, would 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.
-74-
SECTION
5.07. Maintaining Records; Access
to Properties and Inspections
. Maintain
all financial records in accordance with GAAP and permit any Persons designated
by the Administrative Agent 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 the Borrower or any of the Subsidiaries at reasonable
times, upon reasonable prior notice to the Borrower, and as often as reasonably
requested and to make extracts from and copies of such financial records, and
permit any Persons designated by the Administrative Agent or, upon the
occurrence and during the continuance of an Event of Default, any Lender upon
reasonable prior notice to the Borrower to discuss the affairs, finances and
condition of the Borrower or any of the Subsidiaries with the officers thereof
and independent accountants therefor (subject to reasonable requirements of
confidentiality, including requirements imposed by law or by
contract).
SECTION
5.08. Use of
Proceeds
. Use
the proceeds of the Bridge Loans to finance the Captive Acquisition and the
other Transactions and for general corporate purposes.
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 would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
SECTION
5.10. Further Assurances;
Additional Security.
(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 Collateral Agent may reasonably request, to satisfy
the Collateral and Guarantee Requirement and to cause the Collateral and
Guarantee Requirement to be and remain satisfied, all at the expense of the Loan
Parties and provide to the Collateral Agent, from time to time upon reasonable
request, evidence reasonably satisfactory to the Collateral Agent as to the
perfection and priority of the Liens created or intended to be created by the
Security Documents.
(b) If
any asset (other than Real Property covered by paragraph (c) below or
improvements thereto or any interest therein) that has an individual fair market
value in an amount greater than $5.0 million is acquired by the Borrower or any
other Loan Party after the Closing Date or owned by an entity at the time it
becomes a Subsidiary Loan Party (in each case other than (x) assets
constituting
--
-75-
Collateral
under a Security Document that become subject to the Lien of such Security
Document upon acquisition thereof and (y) assets that are not required to become
subject to Liens in favor of the Collateral Agent pursuant to Section 5.10(g) or
the Security Documents) (i) notify the Collateral Agent thereof and (ii) cause
such asset to be subjected to a Lien securing the Obligations and take, and
cause the Subsidiary Loan Parties to take, such actions as shall be necessary or
reasonably requested by the Collateral 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) Promptly
notify the Collateral Agent of the acquisition of and grant and cause each of
the Subsidiary Loan Parties to grant to the Collateral Agent security interests
and mortgages in such Real Property of the Borrower or any such Subsidiary Loan
Parties as are not covered by the original Mortgages, to the extent acquired
after the Closing Date and having an individual fair market value at the time of
acquisition in excess of $5.0 million pursuant to documentation substantially in
the form of the Mortgages delivered to the Collateral Agent pursuant to Section
4.02(d) or in such other form as is reasonably satisfactory to the Collateral
Agent (each, an “Additional Mortgage”)
and constituting valid and enforceable Liens subject to no other Liens except
Permitted Liens, 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. Unless otherwise waived by the Collateral Agent, with respect
to each such Additional Mortgage, the Borrower delivers to the Term Loan
Facility Administrative Agent a title insurance policy, a survey, or other
documents in connection with a mortgage on the applicable property, then it
shall deliver to the Collateral Agent contemporaneously with such Additional
Mortgage a title insurance policy, a survey and such additional
documents.
(d) If
any additional direct or indirect Subsidiary of the Borrower is formed or
acquired after the Closing Date (with any Subsidiary Redesignation resulting in
an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the
acquisition of a Subsidiary) and if such Subsidiary is a Subsidiary Loan Party,
within five Business Days after the date such Subsidiary is formed or acquired,
notify the Collateral Agent and the Lenders thereof and, within 20 Business Days
after the date such Subsidiary is formed or acquired or such longer period as
the Collateral Agent shall agree, 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, subject to paragraph (g) below. Notwithstanding the foregoing, to the
extent any Term Loan Obligations have the benefit of a guarantee from any such
Subsidiary of the Borrower, the Borrower shall cause such Subsidiary to
guarantee the Obligations.
(e) If
any additional Foreign Subsidiary of the Borrower is formed or acquired after
the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted
Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a
Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary, within
five Business Days after the date such Foreign Subsidiary is formed or acquired,
notify the Collateral Agent and the Lenders thereof and, within 20 Business Days
after the date such Foreign Subsidiary is formed or acquired or such longer
period as the Collateral Agent shall agree, cause the Collateral and Guarantee
Requirement to be satisfied with respect to any Equity Interest in such Foreign
Subsidiary owned by or on behalf of any Loan Party, subject to paragraph (g)
below.
(f) (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 jurisdiction of organization
or organizational identification number; provided that the
Borrower shall not effect or permit any such change unless all filings have been
made, or
--
-76-
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 Collateral Agent if any material portion of the Collateral
is damaged or destroyed.
(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 Borrower or any of its Subsidiaries as a lessee under a lease, (ii)
any vehicle, (iii) cash, deposit accounts and securities accounts, (iv) any
Equity Interests acquired after the Closing Date (other than Equity Interests in
the Borrower or, in the case of any Person which is a Subsidiary, Equity
Interests in such Person issued or acquired after such Person became a
Subsidiary) in accordance with this Agreement if, and to the extent that, and
for so long as (A) such Equity Interests constitute less than 100% of all
applicable Equity Interests of such Person and the Person holding the remainder
of such Equity Interests are not Affiliates, (B) doing so would violate
applicable law or a contractual obligation binding on such Equity Interests and
(C) with respect to such contractual obligations, such 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, (v) any assets acquired after the Closing Date, to the extent
that, and for so long as, taking such actions would violate an enforceable
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 with the acquisition of such assets (except in
the case of assets acquired with Indebtedness permitted pursuant to
Section 6.01(b)(i) that is secured by a Permitted Lien) or (vi) those
assets as to which the Collateral Agent shall reasonably determine that the
costs of obtaining or perfecting such a security interest are excessive in
relation to the value of the security to be afforded thereby; provided that, upon
the reasonable request of the Collateral Agent, the Borrower shall, and shall
cause any applicable Subsidiary to, use commercially reasonable efforts to have
waived or eliminated any contractual obligation of the types described in
clauses (iv) and (v) above. Notwithstanding the foregoing, to the extent
any Term Loan Obligations are secured by any assets of any Loan Party or the
Borrower, the Borrower shall cause such asset to be subject to the Lien securing
the Loans.
(h) Notwithstanding
anything to the contrary provided in any other Loan Document, with respect to
any Mortgaged Properties or properties required to be subject to a Mortgage
pursuant to the Loan Documents (taken together, the “Subject Properties”),
the Borrower shall promptly, but in any event prior to the relevant deadline in
the Loan Documents to subject such property to such Mortgage, advise the
Administrative Agent if any Subject Property is located in an area that has been
identified by the Secretary of Housing and Urban Development as an area having
special flood hazards within the meaning of the National Flood Insurance Act of
1968, and if the applicable Loan Party is unable to obtain flood insurance in
accordance with Section 5.02, the Collateral Agent in its sole discretion, shall
have the right to waive the requirement that the applicable Loan Party subject
such Subject Property to a Mortgage and the deliver related documentation to the
Collateral Agent.
SECTION
5.11. [Reserved]
.
SECTION
5.12. Securities
Demand
.
(a) At
any time and from time to time (but on not more than two occasions) during the
period (the “Securities Demand
Period”) ending on the Bridge Loan Maturity Date, upon notice (a “Demand Notice”) by
the Investment Banks to the Borrower stating that, in their opinion, market
conditions are such that the conditions specified in paragraph (b) below can be
satisfied, the Borrower shall execute an offering of Permanent Financing (a
“Permanent Financing
Offering”) upon such terms and conditions as may be specified in the
Demand Notice (provided that the Borrower shall have
participated
--
-77-
in or
been afforded an opportunity to participate in a customary “road show” for each
Permanent Financing Offering):
(b) The
Permanent Financing will have ranking and guarantees identical to the Loans and
will have interest rate, security and yields that are no less favorable to the
Borrower than those generally available in the first lien secured debt capital
markets to issuers of comparable debt securities or loans, as applicable, having
a creditworthiness comparable to the Borrower; provided that (i) the
maturity date of any Permanent Financing shall not be earlier than the Rollover
Loan Maturity Date, (ii) the optional redemption terms for such Permanent
Financing shall be no less favorable to the issuer than such terms for the
Exchange Notes (except that any applicable non-call periods and call premiums
would be measured from the date of issuance of such Permanent Financing rather
than the Closing Date), (iii) (x) the negative covenants applicable to the
Permanent Financing shall be the same as the covenants applicable to the Second
Priority Notes and (y) the affirmative covenants and events of default shall, in
the case of the debt securities, be the same as those in the Second Priority
Notes (with such non-substantive changes as are necessary to reflect the
first-lien status of the collateral) and, in the case of loans, be the same as
those in the Term Loan Credit Agreement (it being understood that, in each case,
the amount of the Cumulative Credit at the closing date of the Permanent
Financing is to be agreed but shall, in no event, be less than the amount of the
Cumulative Credit on such date pursuant to this Agreement); (iv) in the case of
debt securities, the pledges of equity interests, securities and intercompany
indebtedness of the Borrower’s Subsidiaries (but not on the guarantees or
pledges of other assets of such subsidiaries) shall be limited to the extent
required to avoid the need to file separate financial statements of such
subsidiaries under applicable rules of the SEC; (v) the interest rate
on the applicable Permanent Financing shall not exceed the Rate Cap (exclusive
of default interest, tax gross ups and amounts owing under any registration
rights agreement); (vi) if the Investment Banks so determine, the Permanent Financing will be
issued with original issue discount or closing fees (“OID”) of up to 3% of
the face amount thereof, so long as the total yield of the Permanent Financing
after giving effect thereto does not exceed the Rate Cap (and with OID being
equated to interest such that the Rate Cap is reduced by 0.25% per annum for
every 1% of OID); and (vii) the aggregate amount of proceeds of Permanent Financing will not
exceed an amount sufficient to repay all the then outstanding principal and
other amounts under the Bridge Loans.
(c) The
Borrower agrees to use commercially reasonable efforts, in connection with the
sale of such Permanent Financing to, (x) with respect to Permanent Financing
issued as debt securities, prepare, as soon as practicable upon receipt of a
Demand Notice, (a) an offering circular, prospectus or private placement
memorandum with respect to the Permanent Financing or (b) a registration
statement under the Securities Act, with respect to the Permanent Financing,
including any registration statement covering market-making activities of the
Investment Banks and any exchange offer or shelf registration following a
private placement of the Permanent Financing (the “Registration
Statement”), and if such Registration Statement is filed, the Borrower
agrees to use commercially reasonable efforts to cause such Registration
Statement to become effective as soon as practicable thereafter, which, in the
case of any Registration Statement, will comply as to form with the rules and
regulations under the Securities Act and contain such disclosure as may be
required by law and/or (y) with respect to any Permanent Financing placed as
loan financing, prepare an information package as soon as practicable upon
request by the Investment Banks regarding the business, operations, financial
projections and prospects of the Borrower and its subsidiaries including,
without limitation, the delivery of all information relating to the transactions
contemplated hereunder prepared by or on behalf of the Borrower deemed
reasonably necessary by the Investment Banks or their designated affiliate to
complete the syndication of the Permanent Financing issued in the form of loans
(including all information contemplated in the Commitment Letter to be delivered
in connection with the Bridge Facility).
(d) The
Borrower agrees that if, prior to the Bridge Loan Maturity Date, any event or
any other change known to the Borrower results in any offering document or
information package described
in the paragraph immediately above (an “Offering Document”)
relating to the Permanent Financing containing an untrue statement of a material
fact or omitting to state any material fact required to be stated therein or
necessary to make the statements contained therein, taken as a whole, not
materially misleading in light of the circumstances under which they were made,
the Borrower shall use commercially reasonable efforts to promptly supplement
any such Offering Document such that all such information contained therein
shall remain true and correct in all material respects.
(e) Notwithstanding
anything to the contrary herein or in any Loan Document, the provisions of this
Section 5.12 shall supersede the provisions of the Fee Letter relating to the
subject matter described in this Section 5.12,
SECTION
5.13. Exchange Notes.
(a) The
Borrower shall, as promptly as reasonably practicable after the first Exchange
Trigger Event but in any event prior to or on the first Exchange Date, enter
into the Exchange Notes Indenture with an indenture trustee (the “Trustee”) being (a)
Xxxxx Fargo Bank, National Association or (b) such other bank or trust company
acting as indenture trustee thereunder, which shall be a corporation organized
and doing business under the laws of the United States of America or any state
thereof, in good standing, which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by U.S.
Federal or state authority and which has a combined capital and surplus of not
less than $50.0 million.
-78-
(b) [Reserved].
(c) On
or prior to the first Exchange Date, the Borrower shall execute and deliver, and
cause each Subsidiary Loan Party to execute and deliver, to the Joint Lead
Arrangers the Registration Rights Agreement. The Borrower will, at
its own expense, take all commercially reasonable actions (including
obtaining CUSIP numbers in respect thereof) reasonably necessary to
cause the Exchange Notes to be eligible to clear and settle through The
Depository Trust Company.
(d) [Reserved].
(e) On
the first Exchange Date, the Borrower shall be deemed to have made the
representations and warranties specified in Section 3.02, Section 3.03 and
Section 3.04 hereof, as of such date, and as if such representations and
warranties related only to the Exchange Notes Indenture, the Exchange Notes (and
the related guarantees) and the Registration Rights Agreement rather than any
Loan Documents.
(f) On
or prior to the first Exchange Date, the Borrower shall have received an Opinion
of Counsel relating to due authorization, execution, delivery and enforceability
of the Exchange Notes, Exchange Notes Indenture and Registration Rights
Agreement, in form and substance substantially similar to such opinions
delivered on the Closing Date under Section 4.01(e) hereof, which opinions shall
also provide for customary “reliance language” in favor of the Trustee and any
Lender exchanging Loans for Exchange Notes.
ARTICLE
VI
Negative
Covenants
SECTION
6.01. Limitation on Incurrence of
Indebtedness and Issuance of Disqualified Stock and Preferred
Stock
.
(a) The
Borrower shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, Incur any Indebtedness (including Acquired Indebtedness)
or issue any shares of Disqualified Stock; and (ii) the Borrower shall not
permit any of its Restricted Subsidiaries (other than a Subsidiary Loan Party)
to issue any shares of Preferred Stock; provided, however, that the
Borrower and any Restricted Subsidiary that is a Subsidiary Loan Party or a
Foreign Subsidiary may Incur Indebtedness (including Acquired Indebtedness) or
issue shares of Disqualified Stock and any Restricted Subsidiary may issue
shares of Preferred Stock, in each case if the Fixed Charge Coverage Ratio of
the Borrower for the most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date on
which such additional Indebtedness is Incurred or such Disqualified Stock or
Preferred Stock is issued would have been at least 2.00 to 1.00 determined on a
pro forma basis (including a pro forma application of the net proceeds
therefrom), as if the additional Indebtedness had been Incurred, or the
Disqualified Stock or Preferred Stock had been issued, as the case may be, and
the application of proceeds therefrom had occurred at the beginning of such
four-quarter period.
-79-
(b) The
limitations set forth in Section 6.01(a) shall not apply to:
(i) the
Incurrence by the Borrower or its Restricted Subsidiaries of Indebtedness under
the Credit Agreements and the issuance and creation of letters of credit and
bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances
being deemed to have a principal amount equal to the face amount thereof) in the
aggregate principal amount of $1,600.0 million plus an aggregate principal
amount outstanding at any one time that does not cause the Secured Indebtedness
Leverage Ratio of the Borrower to exceed 4.00 to 1.00, determined on a pro forma
basis (including a pro forma application of the net proceeds
therefrom);
(ii) the
Incurrence by the Borrower and the Loan Parties of Indebtedness represented by
the (A) Loans and the Guarantees, the Exchange Notes and related guarantees to
be issued in exchange for the Loans and the Guarantees and the exchange notes
and related exchange guarantees to be issued in exchange for the Exchange Notes
and the guarantees thereof pursuant to the Registration Rights Agreement and (B)
any Permanent Financing (including any guarantee thereof) and any exchange notes
and related exchange guarantees to be issued in exchange for any Permanent
Financing and the guarantees thereof;
(iii) Indebtedness
existing on the Closing Date (other than Indebtedness described in clauses (i)
and (ii) of this Section 6.01(b));
(iv) Indebtedness
(including Capitalized Lease Obligations) Incurred by the Borrower or any of its
Restricted Subsidiaries, Disqualified Stock issued by the Borrower or any of its
Restricted Subsidiaries and Preferred Stock issued by any Restricted
Subsidiaries of the Borrower to finance (whether prior to or within 270 days
after) the purchase, lease, construction or improvement of property (real or
personal) or equipment (whether through the direct purchase of assets or the
Capital Stock of any Person owning such assets (but no other material
assets));
(v) Indebtedness
Incurred by the Borrower or any of its Restricted Subsidiaries constituting
reimbursement obligations with respect to letters of credit and bank guarantees
issued in the
ordinary course of business, including without limitation letters of credit in
respect of workers’ compensation claims, health, disability or other benefits to
employees or former employees or their families or property, casualty or
liability insurance or self-insurance, and letters of credit in connection with
the maintenance of, or pursuant to the requirements of, environmental or other
permits or licenses from governmental authorities, or other Indebtedness with
respect to reimbursement type obligations regarding workers’ compensation
claims;
(vi) Indebtedness
arising from agreements of the Borrower or a Restricted Subsidiary providing for
indemnification, adjustment of purchase price or similar obligations, in each
case, Incurred in connection with the Transactions or any other acquisition or
disposition of any business, assets or a Subsidiary of the Borrower in
accordance with the terms of this Agreement, other than guarantees of
Indebtedness Incurred by any Person acquiring all or any portion of such
business, assets or Subsidiary for the purpose of financing such
acquisition;
(vii) Indebtedness
of the Borrower to a Restricted Subsidiary; provided that any
such Indebtedness owed to a Restricted Subsidiary that is not a Subsidiary Loan
Party is subordinated in right of payment to the obligations of the Borrower
under the Loans; provided, further, that any
subsequent issuance or transfer of any Capital Stock or any other event which
results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary
or any other subsequent transfer of any such Indebtedness (except to the
Borrower or another Restricted Subsidiary) shall be deemed, in each case, to be
an Incurrence of such Indebtedness;
-80-
(viii) shares
of Preferred Stock of a Restricted Subsidiary issued to the Borrower or another
Restricted Subsidiary; provided that any
subsequent issuance or transfer of any Capital Stock or any other event which
results in any Restricted Subsidiary that holds such shares of Preferred Stock
of another Restricted Subsidiary ceasing to be a Restricted Subsidiary or any
other subsequent transfer of any such shares of Preferred Stock (except to the
Borrower or another Restricted Subsidiary) shall be deemed, in each case, to be
an issuance of shares of Preferred Stock;
(ix) Indebtedness
of a Restricted Subsidiary to the Borrower or another Restricted Subsidiary;
provided that
if a Subsidiary Loan Party incurs such Indebtedness to a Restricted Subsidiary
that is not a Subsidiary Loan Party, such Indebtedness is subordinated in right
of payment to the Guarantee of such Subsidiary Loan Party; provided, further, that any
subsequent issuance or transfer of any Capital Stock or any other event which
results in any Restricted Subsidiary holding such Indebtedness ceasing to be a
Restricted Subsidiary or any other subsequent transfer of any such Indebtedness
(except to the Borrower or another Restricted Subsidiary) shall be deemed, in
each case, to be an Incurrence of such Indebtedness;
(x) Hedging
Obligations that are not incurred for speculative purposes and either:
(1) for the purpose of fixing or hedging interest rate risk with respect to
any Indebtedness that is permitted by the terms of this Agreement to be
outstanding; (2) for the purpose of fixing or hedging currency exchange rate
risk with respect to any currency exchanges; or (3) for the purpose of fixing or
hedging commodity price risk (including resin price risk) with respect to any
commodity purchases or sales;
(xi) obligations
in respect of performance, bid, appeal and surety bonds and completion
guarantees provided by the Borrower or any Restricted Subsidiary in the ordinary
course of business;
(xii) Indebtedness
or Disqualified Stock of the Borrower or any Restricted Subsidiary of the
Borrower and Preferred Stock of any Restricted Subsidiary of the Borrower not
otherwise permitted hereunder in an aggregate principal amount which, when
aggregated with the principal amount or liquidation preference of all other
Indebtedness, Disqualified Stock and Preferred Stock then outstanding and
Incurred pursuant to this clause (xii), does not exceed the greater of $100.0
million and 4.5% of Total Assets at the time of Incurrence (it being understood
that any Indebtedness Incurred under this clause (xii) shall cease to be deemed
Incurred or outstanding for purposes of this clause (xii) but shall be deemed
Incurred for purposes of Section 6.01(a) from and after the first date on which
the Borrower, or the Restricted Subsidiary, as the case may be, could have
Incurred such Indebtedness under Section 6.01(a) without reliance upon this
clause (xii));
(xiii) any
guarantee by the Borrower or a Subsidiary Loan Party of Indebtedness or other
obligations of the Borrower or any of its Restricted Subsidiaries so long as the
Incurrence of such Indebtedness Incurred by the Borrower or such Restricted
Subsidiary is permitted under the terms of this Agreement; provided that if such
Indebtedness is by its express terms subordinated in right of payment to the
Loans or the Guarantee of such Restricted Subsidiary, as applicable, any such
guarantee of such Subsidiary Loan Party’s with respect to such Indebtedness
shall be subordinated in right of payment to such Subsidiary Loan Party’s
Guarantee with respect to the Loans substantially to the same extent as such
Indebtedness is subordinated to the Loans or the Guarantee of such Restricted
Subsidiary, as applicable;
(xiv) the
Incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness
or Disqualified Stock or Preferred Stock of a Restricted Subsidiary of the
Borrower which serves to refund, refinance or defease any Indebtedness Incurred
or Disqualified Stock or Preferred Stock issued as permitted under Section
6.01(a) and clauses (ii), (iii), (iv), (xiv), (xv), (xix) and (xx) of this
Section 6.01(b) or any Indebtedness, Disqualified Stock or Preferred Stock
Incurred to so refund or refinance such Indebtedness, Disqualified Stock or
Preferred Stock, including any Indebtedness, Disqualified Stock or Preferred
Stock Incurred to pay premiums and fees in connection therewith (subject to the
following proviso, “Refinancing
Indebtedness”) prior to its respective maturity; provided, however, that such
Refinancing Indebtedness:
-81-
(A) has
a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is
Incurred which is not less than the remaining Weighted Average Life to Maturity
of the Indebtedness, Disqualified Stock or Preferred Stock being refunded or
refinanced;
(B) has
a Stated Maturity which is not earlier than the earlier of (x) the Stated
Maturity of the Indebtedness being refunded or refinanced or (y) 91 days
following the Rollover Loan Maturity Date;
(C) to
the extent such Refinancing Indebtedness refinances (a) Indebtedness junior to
the Loans or the Guarantee of such Restricted Subsidiary, as applicable, such
Refinancing Indebtedness is junior to the Loans or the Guarantee of such
Restricted Subsidiary, as applicable, or (b) Disqualified Stock or Preferred
Stock, such Refinancing Indebtedness is Disqualified Stock or Preferred
Stock;
(D) is
Incurred in an aggregate amount (or if issued with original issue discount, an
aggregate issue price) that is equal to or less than the aggregate amount (or if
issued with original issue discount, the aggregate accreted value) then
outstanding of the Indebtedness
being refinanced plus premium, fees and expenses Incurred in connection with
such refinancing;
(E) shall
not include (x) Indebtedness of a Restricted Subsidiary of the Borrower that is
not a Subsidiary Loan Party that refinances Indebtedness of the Borrower or a
Restricted Subsidiary that is a Subsidiary Loan Party, or (y) Indebtedness of
the Borrower or a Restricted Subsidiary that refinances Indebtedness of an
Unrestricted Subsidiary; and
(F) in
the case of any Refinancing Indebtedness Incurred to refinance Indebtedness
outstanding under clause (iv) or (xx) of this Section 6.01(b), shall be deemed
to have been Incurred and to be outstanding under such clause (iv) or (xx) of
this Section 6.01(b), as applicable, and not this clause (xiv) for purposes of
determining amounts outstanding under such clauses (iv) and (xix) of this
Section 6.01(b);
provided, further, that
subclauses (1) and (2) of this clause (xiv) shall not apply to any refunding or
refinancing of any Secured Indebtedness constituting First Priority Lien
Obligations;
(xv) Indebtedness,
Disqualified Stock or Preferred Stock of (x) the Borrower or any of its
Restricted Subsidiaries incurred to finance an acquisition or (y) Persons that
are acquired by the Borrower or any of its Restricted Subsidiaries or merged
with or into the Borrower or any of its Restricted Subsidiaries in accordance
with the terms of this Agreement; provided, however, that after
giving effect to such acquisition or merger either:
-82-
(A) the
Borrower would be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in Section 6.01(a);
or
(B) the
Fixed Charge Coverage Ratio of the Borrower would be greater than immediately
prior to such acquisition or merger;
(xvi) Indebtedness
Incurred by a Receivables Subsidiary in a Qualified Receivables Financing that
is not recourse to the Borrower or any Restricted Subsidiary other than a
Receivables Subsidiary (except for Standard Securitization
Undertakings);
(xvii) Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument drawn against insufficient funds in the ordinary
course of business; provided that such
Indebtedness is extinguished within five Business Days of its
Incurrence;
(xviii) Indebtedness
of the Borrower or any Restricted Subsidiary supported by a letter of credit or
bank guarantee issued pursuant to the Credit Agreements, in a principal amount
not in excess of the stated amount of such letter of credit;
(xix) Contribution
Indebtedness;
(xx) Indebtedness
of Foreign Subsidiaries, provided, however, that the
aggregate principal amount of Indebtedness Incurred under this clause (xx), when
aggregated with the principal amount of all other Indebtedness then outstanding
and Incurred pursuant to this clause (xx), does not exceed $25.0 million at any
one time outstanding;
(xxi) Indebtedness
of the Borrower or any Restricted Subsidiary consisting of (x) the financing of
insurance premiums or (y) take-or-pay obligations contained in supply
arrangements, in each case, in the ordinary course of business; and
(xxii) Indebtedness
incurred on behalf of, or representing guarantees of Indebtedness of, joint
ventures of the Borrower or any Restricted Subsidiary not in excess, at any one
time outstanding, of $7.5 million.
-83-
For
purposes of determining compliance with this Section 6.01, in the event that an
item of Indebtedness, Disqualified Stock or Preferred Stock meets the criteria
of more than one of the categories of permitted Indebtedness described in
clauses (i) through (xxii) above or is entitled to be Incurred pursuant to
Section 6.01(a), the Borrower shall, in its sole discretion, classify or
reclassify, or later divide, classify or reclassify, such item of Indebtedness
in any manner that complies with this Section 6.01. Accrual of
interest, the accretion of accreted value, the payment of interest in the form
of additional Indebtedness with the same terms, the payment of dividends on
Preferred Stock in the form of additional shares of Preferred Stock of the same
class, accretion of original issue discount or liquidation preference and
increases in the amount of Indebtedness outstanding solely as a result of
fluctuations in the exchange rate of currencies shall not be deemed to be an
Incurrence of Indebtedness for purposes of this Section
6.01. Guarantees of, or obligations in respect of letters of credit
relating to, Indebtedness which is otherwise included in the determination of a
particular amount of Indebtedness shall not be included in the determination of
such amount of Indebtedness; provided that the
Incurrence of the Indebtedness represented by such guarantee or letter of
credit, as the case may be, was in compliance with this Section
6.01.
For
purposes of determining compliance with any U.S. dollar-denominated restriction
on the Incurrence of Indebtedness, the U.S. dollar-equivalent principal amount
of Indebtedness denominated in a foreign currency shall be calculated based on
the relevant currency exchange rate in effect on the date such Indebtedness was
Incurred, in the case of term debt, or first committed or first Incurred
(whichever yields the lower U.S. dollar equivalent), in the case of revolving
credit debt; provided that if such
Indebtedness is Incurred to refinance other Indebtedness denominated in a
foreign currency, and such refinancing would cause the applicable U.S.
dollar-denominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such U.S.
dollar-denominated restriction shall be deemed not to have been exceeded so long
as the principal amount of such refinancing Indebtedness does not exceed the
principal amount of such Indebtedness being refinanced.
SECTION
6.02. Liens
. The
Borrower shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, Incur or suffer to exist any Lien other than
Permitted Liens on any asset or property of the Borrower or such Restricted
Subsidiary securing Indebtedness unless such Lien securing such Indebtedness of
the Borrower or such Restricted Subsidiary is junior to the Liens securing the
Obligations upon the assets or property constituting the collateral for such
Indebtedness, on terms no less favorable in any material respect to the Lenders
than the terms set forth in the Second Priority Intercreditor
Agreement. In the case of any Permitted Lien that secures First
Priority Lien Obligations, the Notes shall be equally and ratably secured with
(or on a senior basis to, in the case of obligations subordinated in right of
payment to the Loans) the obligations so secured on terms no less favorable in
any material respect to the Lenders than the terms set forth in the Senior
Lender Intercreditor Agreement; provided that First
Priority Lien Obligations that are Obligations in respect of a Revolving Credit
Agreement may be secured on a senior basis with respect to any Revolving
Facility Senior Collateral to Liens securing the Obligations with respect to
such collateral, on terms no less favorable in any material respect to the
Lenders than the terms set forth in the Senior Lender Intercreditor
Agreement.
SECTION
6.03. Asset
Sales
. The
Borrower shall not, and shall not permit any of its Restricted Subsidiaries to,
cause or make an Asset Sale, unless (x) the Borrower or any of its Restricted
Subsidiaries,
as the case may be, receives consideration at the time of such Asset Sale at
least equal to the Fair Market Value (as determined in good faith by the
Borrower) of the assets sold or otherwise disposed of, and (y) at least 75% of
the consideration therefor received by the Borrower or such Restricted
Subsidiary, as the case may be, is in the form of Cash Equivalents; provided that the
amount of:
(i) any
liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most
recent balance sheet or in the notes thereto) of the Borrower or any Restricted
Subsidiary of the Borrower (other than liabilities that are by their terms
subordinated to the Loans or any Guarantee) that are assumed by the transferee
of any such assets,
(ii) any
notes or other obligations or other securities or assets received by the
Borrower or such Restricted Subsidiary of the Borrower from such transferee that
are converted by the Borrower or such Restricted Subsidiary of the Borrower into
cash within 180 days of the receipt thereof (to the extent of the cash
received), and
(iii) any
Designated Non-cash Consideration received by the Borrower or any of its
Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market
Value, taken together with all other Designated Non-cash Consideration received
pursuant to this clause (iii) that is at that time outstanding, not to exceed
the greater of 2.0% of Total Assets and $50.0 million at the time of the receipt
of such Designated Non-cash Consideration (with the Fair Market Value of each
item of Designated Non-cash Consideration being measured at the time received
and without giving effect to subsequent changes in value)
-84-
shall be
deemed to be Cash Equivalents for the purposes of this Section
6.03.
SECTION
6.04. Limitation on Restricted
Payments.
(a) The
Borrower shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly:
(i) declare
or pay any dividend or make any distribution on account of the Borrower’s or any
of its Restricted Subsidiaries’ Equity Interests, including any payment made in
connection with any merger, amalgamation or consolidation involving the Borrower
(other than (A) dividends or distributions by the Borrower payable solely in
Equity Interests (other than Disqualified Stock) of the Borrower; or (B)
dividends or distributions by a Restricted Subsidiary so long as, in the case of
any dividend or distribution payable on or in respect of any class or series of
securities issued by a Restricted Subsidiary other than a Wholly Owned
Restricted Subsidiary, the Borrower or a Restricted Subsidiary receives at least
its pro rata share of such dividend or distribution in accordance with its
Equity Interests in such class or series of securities);
(ii) purchase
or otherwise acquire or retire for value any Equity Interests of the Borrower or
any direct or indirect parent of the Borrower;
(iii) make
any principal payment on, or redeem, repurchase, defease or otherwise acquire or
retire for value, in each case prior to any scheduled repayment or scheduled
maturity, any Subordinated Indebtedness of the Borrower or any of its Restricted
Subsidiaries (other than the payment, redemption, repurchase, defeasance,
acquisition or retirement of (A) Subordinated Indebtedness in anticipation of
satisfying a sinking fund obligation, principal installment or final maturity,
in each case due within one year of the date of such payment, redemption,
repurchase, defeasance,
acquisition or retirement and (B) Indebtedness permitted under clauses (vii) and
(ix) of Section 6.01(b)); or
(iv) make
any Restricted Investment
(all such
payments and other actions set forth in clauses (i) through (iv) above being
collectively referred to as “Restricted
Payments”), unless, at the time of such Restricted Payment:
(1) no
Default shall have occurred and be continuing or would occur as a consequence
thereof;
(2) immediately
after giving effect to such transaction on a pro forma basis, the Borrower could
Incur $1.00 of additional Indebtedness under Section 6.01(a); and
(3) such
Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Borrower and its Restricted Subsidiaries after the Closing
Date (including Restricted Payments permitted by clauses (i), (iv) (only to the
extent of one-half of the amounts paid pursuant to such clause), (vi) and (viii)
of Section 6.04(b), but excluding all other Restricted Payments permitted by
Section 6.04(b)), is less than the amount equal to the Cumulative
Credit.
(b) The
provisions of Section 6.04(a) shall not prohibit:
-85-
(i) the
payment of any dividend or distribution within 60 days after the date of
declaration thereof, if at the date of declaration such payment would have
complied with the provisions of this Agreement;
(ii) (A)
the repurchase, retirement or other acquisition of any Equity Interests (“Retired Capital
Stock”) of the Borrower or any direct or indirect parent of the Borrower
or Subordinated Indebtedness of the Borrower, any direct or indirect parent of
the Borrower or any Subsidiary Loan Party in exchange for, or out of the
proceeds of, the substantially concurrent sale of, Equity Interests of the
Borrower or any direct or indirect parent of the Borrower or contributions to
the equity capital of the Borrower (other than any Disqualified Stock or any
Equity Interests sold to a Subsidiary of the Borrower or to an employee stock
ownership plan or any trust established by the Borrower or any of its
Subsidiaries) (collectively, including any such contributions, “Refunding Capital
Stock”); and
(B) the
declaration and payment of accrued dividends on the Retired Capital Stock out of
the proceeds of the substantially concurrent sale (other than to a Subsidiary of
the Borrower or to an employee stock ownership plan or any trust established by
the Borrower or any of its Subsidiaries) of Refunding Capital
Stock;
(iii) the
redemption, repurchase or other acquisition or retirement of Subordinated
Indebtedness of the Borrower or any Subsidiary Loan Party made by exchange for,
or out of the proceeds of the substantially concurrent sale of, new Indebtedness
of the Borrower or a Subsidiary Loan Party which is Incurred in accordance with
Section 6.01 so long as
(A) the
principal amount of such new Indebtedness does not exceed the principal amount
of the Subordinated Indebtedness being so redeemed, repurchased, acquired or
retired for value (plus the amount of any premium required to be paid under the
terms of the instrument governing the Subordinated Indebteness
being so redeemed, repurchased, acquired or retired plus any fees incurred in
connection therewith),
(B) such
Indebtedness is subordinated to the Loans or the related Guarantee, as the case
may be, at least to the same extent as such Subordinated Indebtedness so
purchased, exchanged, redeemed, repurchased, acquired or retired for
value,
(C) such
Indebtedness has a final scheduled maturity date equal to or later than the
earlier of (x) the final scheduled maturity date of the Subordinated
Indebtedness being so redeemed, repurchased, acquired or retired or (y) 91 days
following the Rollover Loan Maturity Date, and
(D) such
Indebtedness has a Weighted Average Life to Maturity at the time Incurred which
is not less than the remaining Weighted Average Life to Maturity of the
Subordinated Indebtedness being so redeemed, repurchased, acquired or
retired;
(iv) the
repurchase, retirement or other acquisition (or dividends to any direct or
indirect parent of the Borrower to finance any such repurchase, retirement or
other acquisition) for value of Equity Interests of the Borrower or any direct
or indirect parent of the Borrower held by any future, present or former
employee, director or consultant of the Borrower or any direct or indirect
parent of the Borrower or any Subsidiary of the Borrower pursuant to any
management equity plan or stock option plan or any other management or employee
benefit plan or other agreement or arrangement; provided, however, that the
aggregate amounts paid under this clause (iv) do not exceed $15.0 million in any
calendar year (with unused amounts in any calendar year being permitted to be
carried over for the two succeeding calendar years); provided, further, however, that such
amount in any calendar year may be increased by an amount not to
exceed:
-86-
(A) the
cash proceeds received by the Borrower or any of its Restricted Subsidiaries
from the sale of Equity Interests (other than Disqualified Stock) of the
Borrower or any direct or indirect parent of the Borrower (to the extent
contributed to the Borrower) to members of management, directors or consultants
of the Borrower and its Restricted Subsidiaries or any direct or indirect parent
of the Borrower that occurs after the Closing Date (provided that the
amount of such cash proceeds utilized for any such repurchase, retirement, other
acquisition or dividend shall not increase the amount available for Restricted
Payments under Section 6.04(a)(iii)); plus
(B) the
cash proceeds of key man life insurance policies received by the Borrower or any
direct or indirect parent of the Borrower (to the extent contributed to the
Borrower) or the Restricted Subsidiaries after the Closing Date;
provided that the
Borrower may elect to apply all or any portion of the aggregate increase
contemplated by clauses (A) and (B) above in any calendar year;
(v) the
declaration and payment of dividends or distributions to holders of any class or
series of Disqualified Stock of the Borrower or any of its Restricted
Subsidiaries issued or incurred in accordance with Section 6.01;
(vi) the
declaration and payment of dividends or distributions (a) to holders of any
class or series of Designated Preferred Stock (other than Disqualified Stock)
issued after the Closing Date and (b) to any direct or indirect parent of the
Borrower, the proceeds of which will be used to fund the payment of dividends to
holders of any class or series of Designated Preferred Stock (other than
Disqualified Stock) of any direct or indirect parent of the Borrower issued
after the Closing Date; provided, however, that (A) for
the most recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date of issuance of such
Designated Preferred Stock, after giving effect to such issuance (and the
payment of dividends or distributions) on a pro forma basis, the Borrower would
have had a Fixed Charge Coverage Ratio of at least 2.00 to 1.00 and (B) the
aggregate amount of dividends declared and paid pursuant to this clause (vi)
does not exceed the net cash proceeds actually received by the Borrower from any
such sale of Designated Preferred Stock (other than Disqualified Stock) issued
after the Closing Date;
(vii) Investments
in Unrestricted Subsidiaries having an aggregate Fair Market Value, taken
together with all other Investments made pursuant to this clause (vii) that are
at that time outstanding, not to exceed the greater of $25.0 million and 1.0% of
Total Assets at the time of such Investment (with the Fair Market Value of each
Investment being measured at the time made and without giving effect to
subsequent changes in value);
-87-
(viii) the
payment of dividends on the Borrower’s common stock (or the payment of dividends
to any direct or indirect parent of the Borrower to fund the payment by such
direct or indirect parent of the Borrower of dividends on such entity’s common
stock) of up to 6% per annum of the net proceeds received by the Borrower from
any public offering of common stock of the Borrower or any direct or indirect
parent of the Borrower;
(ix) Investments
that are made with Excluded Contributions;
(x) other
Restricted Payments in an aggregate amount not to exceed the greater of $50.0
million and 2.0% of Total Assets at the time made;
(xi) the
distribution, as a dividend or otherwise, of shares of Capital Stock of, or
Indebtedness owed to the Borrower or a Restricted Subsidiary of the Borrower by,
Unrestricted Subsidiaries;
(xii) the
payment of dividends or other distributions to any direct or indirect parent of
the Borrower in amounts required for such parent to pay federal, state or local
income taxes (as the case may be) imposed directly on such parent to the extent
such income taxes are attributable to the income of the Borrower and its
Restricted Subsidiaries (including, without limitation, by virtue of such parent
being the common parent of a consolidated or combined tax group of which the
Borrower and/or its Restricted Subsidiaries are members);
(xiii) the
payment of dividends, other distributions or other amounts or the making of
loans or advances by the Borrower, if applicable:
(A) in
amounts required for any direct or indirect parent of the Borrower, if
applicable, to pay fees and expenses (including franchise or similar taxes)
required to maintain its corporate existence, customary salary, bonus and other
benefits payable to, and indemnities provided on behalf of, officers and
employees of any direct or indirect parent of the Borrower, if applicable, and
general corporate overhead expenses of any direct or indirect parent of the
Borrower, if
applicable, in each case to the extent such fees and expenses are attributable
to the ownership or operation of the Borrower, if applicable, and its
Subsidiaries;
(B) in
amounts required for any direct or indirect parent of the Borrower, if
applicable, to pay interest and/or principal on Indebtedness the proceeds of
which have been contributed to the Borrower or any of its Restricted
Subsidiaries and that has been guaranteed by, or is otherwise considered
Indebtedness of, the Borrower Incurred in accordance with Section 6.01;
and
(C) in
amounts required for any direct or indirect parent of the Borrower to pay fees
and expenses, other than to Affiliates of the Borrower, related to any
unsuccessful equity or debt offering of such parent.
(xiv) cash
dividends or other distributions on the Borrower’s Capital Stock used to, or the
making of loans to any direct or indirect parent of the Borrower to, fund the
Transactions and the payment of fees and expenses incurred in connection with
the Transactions or owed by the Borrower or any direct or indirect parent of the
Borrower, as the case may be, or Restricted Subsidiaries of the Borrower to
Affiliates, in each case to the extent permitted by Section 6.07;
(xv) repurchases
of Equity Interests deemed to occur upon exercise of stock options or warrants
if such Equity Interests represent a portion of the exercise price of such
options or warrants;
-88-
(xvi) purchases
of receivables pursuant to a Receivables Repurchase Obligation in connection
with a Qualified Receivables Financing and the payment or distribution of
Receivables Fees;
(xvii) payments
of cash, or dividends, distributions or advances by the Borrower or any
Restricted Subsidiary to allow the payment of cash in lieu of the issuance of
fractional shares upon the exercise of options or warrants or upon the
conversion or exchange of Capital Stock of any such Person;
(xviii) the
repurchase, redemption or other acquisition or retirement for value of any
Subordinated Indebtedness pursuant to the provisions similar to those described
under Sections 2.10(b) (as it relates to the use of Net Proceeds of Asset Sales)
and 2.11; provided that all
Loans tendered by Lender in connection with a Change of Control Offer or repaid
in connection with a mandatory prepayment pursuant to Section 2.10(b) (as it
relates to the use of Net Proceeds of Asset Sales), as applicable, have been
repurchased, repaid, redeemed or acquired for value; and
(xix) any
payments made, including any such payments made to any direct or indirect parent
of the Borrower to enable it to make payments, in connection with the
consummation of the Transactions or as contemplated by the Acquisition Documents
(other than payments to any Permitted Holder or any Affiliate
thereof);
provided, however, that at the
time of, and after giving effect to, any Restricted Payment permitted under
clauses (vi), (vii), (x) and (xi) of this Section 6.04(b), no Default shall have
occurred and be continuing or would occur as a consequence thereof.
(c) As
of the Closing Date, all of the Borrower’s Subsidiaries shall be Restricted
Subsidiaries. The Borrower shall not permit any Unrestricted
Subsidiary to become a Restricted Subsidary
except pursuant to the definition of “Unrestricted Subsidiary.” For
purposes of designating any Restricted Subsidiary as an Unrestricted Subsidiary,
all outstanding Investments by the Borrower and its Restricted Subsidiaries
(except to the extent repaid) in the Subsidiary so designated shall be deemed to
be Restricted Payments in an amount determined as set forth in the last sentence
of the definition of “Investments.” Such designation shall only be
permitted if a Restricted Payment in such amount would be permitted at such time
and if such Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary.
SECTION
6.05. Mergers, Consolidations,
Sales of Assets and Acquisitions.
(a) The
Borrower shall not, directly or indirectly, consolidate, amalgamate or merge
with or into or wind up or convert into (whether or not the Borrower is the
surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose
of all or substantially all of its properties or assets in one or more related
transactions to, any Person unless:
(i) the
Borrower is the surviving Person or the Person formed by or surviving any such
consolidation, amalgamation, merger, winding up or conversion (if other than the
Borrower) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation, partnership or limited
liability company organized or existing under the laws of the United States, any
state thereof, the District of Columbia or any territory of the United States
(the Borrower or such Person, as the case may be, being herein called the “Successor Company”);
provided that
in the case where the surviving Person is not a corporation, a co-obligor of the
Loans is a corporation;
-89-
(ii) the
Successor Company (if other than the Borrower) expressly assumes all the
obligations of the Borrower under this Agreement, the Loans and the Security
Documents pursuant to a joinder or other agreement in form reasonably
satisfactory to the Administrative Agent;
(iii) immediately
after giving effect to such transaction (and treating any Indebtedness which
becomes an obligation of the Successor Company or any of its Restricted
Subsidiaries as a result of such transaction as having been Incurred by the
Successor Company or such Restricted Subsidiary at the time of such transaction)
no Default or shall have occurred and be continuing;
(iv) immediately
after giving pro forma effect to such transaction, as if such transaction had
occurred at the beginning of the applicable four-quarter period (and treating
any Indebtedness which becomes an obligation of the Successor Company or any of
its Restricted Subsidiaries as a result of such transaction as having been
Incurred by the Successor Company or such Restricted Subsidiary at the time of
such transaction), either
(A) the
Successor Company would be permitted to Incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in
Section 6.01(a); or
(B) the
Fixed Charge Coverage Ratio for the Successor Company and its Restricted
Subsidiaries would be greater than such ratio for the Borrower and its
Restricted Subsidiaries immediately prior to such transaction; and
(v) each
Subsidiary Loan Party, unless it is the other party to the transactions
described above, shall have by joinder or other agreement in form reasonably
satisfactory to the Administrative Agent confirmed that its Guarantee shall
apply to such Person’s obligations under this Agreement and the
Loans.
The
Successor Company (if other than the Borrower) shall succeed to, and be
substituted for, the Borrower under this Agreement, the Loans and the Security
Documents, and in such event the Borrower will automatically be released and
discharged from its obligations under this Agreement, the Loans and the Security
Documents. Notwithstanding the foregoing clauses (iii) and (iv) of
this Section 6.05(a), (A) any Restricted Subsidiary may merge, consolidate or
amalgamate with or transfer all or part of its properties and assets to the
Borrower or to another Restricted Subsidiary, and (B) the Borrower may merge,
consolidate or amalgamate with an Affiliate incorporated solely for the purpose
of reincorporating the Borrower in another state of the United States, the
District of Columbia or any territory of the United States or may convert into a
limited liability company, so long as the amount of Indebtedness of the Borrower
and its Restricted Subsidiaries is not increased thereby. This
Section 6.05 will not apply to a sale, assignment, transfer, conveyance or other
disposition of assets between or among the Borrower and its Restricted
Subsidiaries.
(b) Subject
to the provisions of Section 9.15 of the Collateral Agreement (which govern the
release of a Guarantee upon the sale or disposition of a Restricted Subsidiary
of the Borrower that is a Subsidiary Loan Party), no Subsidiary Loan Party
shall, and the Borrower shall not permit any Subsidiary Loan Party to,
consolidate, amalgamate or merge with or into or wind up into (whether or not
such Subsidiary Loan Party is the surviving Person), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its properties
or assets in one or more related transactions to, any Person (other than any
such sale, assignment, transfer, lease, conveyance or disposition in connection
with the Transactions) unless either (A) such Subsidiary Loan Party is the
surviving Person or the Person formed by or surviving any such consolidation,
amalgamation or merger (if other than such Subsidiary Loan Party) or to which
such sale, assignment, transfer, lease, conveyance or other disposition shall
have been made is a corporation, partnership or limited liability company
organized or existing under the laws of the United States, any state thereof,
the District of Columbia or any territory of the United States (such Subsidiary
Loan Party or such Person, as the case may be, being herein called the
“Successor Subsidiary Loan Party”) and the Successor Subsidiary Loan Party (if
other than such Subsidiary Loan Party) expressly assumes all the obligations of
such Subsidiary Loan Party under this Agreement, such Subsidiary Loan Party’s
Guarantee and the Security Documents pursuant to an joinder agreement or other
documents or instruments in form reasonably satisfactory to the Administrative
Agent and the Collateral Agent, or (B) such sale or disposition or
consolidation, amalgamation or merger is not in violation of Section
6.03.
-90-
Except as
otherwise provided in this Agreement, the Successor Subsidiary Loan Party (if
other than such Subsidiary Loan Party) will succeed to, and be substituted for,
such Subsidiary Loan Party under this Agreement, such Subsidiary Loan Party’s
Guarantee and the Security Documents, and such Subsidiary Loan Party will
automatically be released and discharged from its obligations under this
Agreement, such Subsidiary Loan Party’s Guarantee and the Security Documents.
Notwithstanding the foregoing, (1) a Subsidiary Loan Party may merge, amalgamate
or consolidate with an Affiliate incorporated solely for the purpose of
reincorporating such Subsidiary Loan Party in another state of the United
States, the District of Columbia or any territory of the United States so long
as the amount of Indebtedness of the Subsidiary Loan Party is not increased
thereby and (2) a Subsidiary Loan Party may merge, amalgamate or consolidate
with another Subsidiary Loan Party or the Borrower.
In
addition, notwithstanding the foregoing, any Subsidiary Loan Party may
consolidate, amalgamate or merge with or into or wind up into, or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets (collectively, a “Transfer”) to (x) the
Borrower or any Subsidiary Loan Party or (y) any Restricted Subsidiary of the
Borrower that is not a Subsidiary Loan Party; provided that at the
time of each such Transfer pursuant to clause (y) the aggregate amount of all
such Transfers since the Closing Date shall not exceed 5.0% of the consolidated
assets of the Borrower and the Subsidiary Loan Parties as shown on the most
recent available balance sheet of the Borrower and the
Restricted Subsidiaries after giving effect to each such Transfer and including
all Transfers occurring from and after the Closing Date (excluding Transfers in
connection with the Transactions).
SECTION
6.06. Dividend and Other Payment
Restrictions Affecting Subsidiaries
. The
Borrower shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or consensual restriction on the ability of
any Restricted Subsidiary to:
(a) (i)
pay dividends or make any other distributions to the Borrower or any of its
Restricted Subsidiaries (1) on its Capital Stock; or (2) with respect to any
other interest or participation in, or measured by, its profits; or (ii) pay any
Indebtedness owed to the Borrower or any of its Restricted
Subsidiaries;
(b) make
loans or advances to the Borrower or any of its Restricted Subsidiaries;
or
(c) sell,
lease or transfer any of its properties or assets to the Borrower or any of its
Restricted Subsidiaries;
except in
each case for such encumbrances or restrictions existing under or by reason
of:
(i) contractual
encumbrances or restrictions in effect on the Closing Date, including pursuant
to the Credit Agreements and the other Credit Agreement Documents;
-91-
(ii) this
Agreement, the Loans, Exchange Notes, exchange notes issued in exchange
therefor, Permanent Financing, any exchange notes issued in exchange therefor,
the Security Documents and the Intercreditor Agreements (and any guarantee
documents, security documents and intercreditor agreements or other documents
relating to the Exchange Notes, exchange notes issued in exchange therefor, any
Permanent Financing and any exchange notes issued in exchange
therefor);
(iii) applicable
law or any applicable rule, regulation or order;
(iv) any
agreement or other instrument relating to Indebtedness of a Person acquired by
the Borrower or any Restricted Subsidiary which was in existence at the time of
such acquisition (but not created in contemplation thereof or to provide all or
any portion of the funds or credit support utilized to consummate such
acquisition), which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired;
(v) contracts
or agreements for the sale of assets, including any restriction with respect to
a Restricted Subsidiary imposed pursuant to an agreement entered into for the
sale or disposition of the Capital Stock or assets of such Restricted Subsidiary
pending the closing of such sale or disposition;
(vi) Secured
Indebtedness otherwise permitted to be Incurred pursuant to Sections 6.01 and
6.02 that limit the right of the debtor to dispose of the assets securing such
Indebtedness;
(vii) restrictions
on cash or other deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business;
(viii) customary
provisions in joint venture agreements and other similar agreements entered into
in the ordinary course of business;
(ix) purchase
money obligations for property acquired in the ordinary course of business that
impose restrictions of the nature discussed in Section 6.06(c) above on the
property so acquired;
(x) customary
provisions contained in leases, licenses and other similar agreements entered
into in the ordinary course of business that impose restrictions of the type
described in clause (c) above on the property subject to such
lease;
(xi) any
encumbrance or restriction of a Receivables Subsidiary effected in connection
with a Qualified Receivables Financing; provided, however, that such
restrictions apply only to such Receivables Subsidiary;
(xii) other
Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary
of the Borrower (i) that is a Subsidiary Loan Party that is Incurred subsequent
to the Closing Date pursuant to Section 6.01 or (ii) that is Incurred by a
Foreign Subsidiary of the Borrower subsequent to the Closing Date pursuant to
clause (iv), (xii) or (xx) of Section 6.01(b);
(xiii) any
Restricted Investment not prohibited by Section 6.04 and any Permitted
Investment; or
-92-
(xiv) any
encumbrances or restrictions of the type referred to in clauses (i), (ii) and
(iii) above imposed by any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings of the
contracts, instruments or obligations referred to in clauses (i) through (xiii)
above; provided
that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are, in the good faith
judgment of the Borrower, no more restrictive with respect to such dividend and
other payment restrictions than those contained in the dividend or other payment
restrictions prior to such amendment, modification, restatement, renewal,
increase, supplement, refunding, replacement or refinancing.
For
purposes of determining compliance with this Section 6.06, (i) the priority of
any Preferred Stock in receiving dividends or liquidating distributions prior to
dividends or liquidating distributions being paid on common stock shall not be
deemed a restriction on the ability to make distributions on Capital Stock and
(ii) the subordination of loans or advances made to the Borrower or a Restricted
Subsidiary of the Borrower to other Indebtedness Incurred by the Borrower or any
such Restricted Subsidiary shall not be deemed a restriction on the ability to
make loans or advances.
SECTION
6.07. Transactions with
Affiliates.
(a) The
Borrower shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction or
series of transactions, contract, agreement, understanding, loan, advance or
guarantee with, or for the benefit of, any Affiliate of the Borrower (each of
the foregoing, an “Affiliate
Transaction”) involving aggregate consideration in excess of $10.0
million, unless:
(i) such
Affiliate Transaction is on terms that are not materially less favorable to the
Borrower or the relevant Restricted Subsidiary than those that could have been
obtained in a comparable
transaction by the Borrower or such Restricted Subsidiary with an unrelated
Person; and
(ii) with
respect to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $25.0 million, the Borrower
delivers to the Administrative Agent a resolution adopted in good faith by the
majority of the Board of Directors of the Borrower, approving such Affiliate
Transaction and set forth in an Officers’ Certificate certifying that such
Affiliate Transaction complies with clause (i) above.
(b) The
provisions of Section 6.07(a) shall not apply to the following:
(i) transactions
between or among the Borrower and/or any of its Restricted Subsidiaries and any
merger of the Borrower and any direct parent of the Borrower; provided that such
parent shall have no material liabilities and no material assets other than
cash, Cash Equivalents and the Capital Stock of the Borrower and such merger is
otherwise in compliance with the terms of this Agreement and effected for a bona
fide business purpose;
(ii) Restricted
Payments permitted by Section 6.04 and Permitted Investments;
(iii) (x)
the entering into of any agreement (and any amendment or modification of any
such agreement) to pay, and the payment of, annual management, consulting,
monitoring and advisory fees to the Funds and the Fund Affiliates in an
aggregate amount in any fiscal year not to exceed the greater of (A) $3.0
million and (B) 1.25% of EBITDA of the Borrower and its Restricted
Subsidiaries for the immediately preceding fiscal year, and out-of-pocket
expense reimbursement; provided, however, that any
payment not made in any fiscal year may be carried forward and paid in the
following two fiscal years and (y) the payment of the present value of all
amounts payable pursuant to any agreement described in clause (iii)(x) of this
Section 6.07(b) in connection with the termination of such
agreement;
-93-
(iv) the
payment of reasonable and customary fees and reimbursement of expenses paid to,
and indemnity provided on behalf of, officers, directors, employees or
consultants of the Borrower or any Restricted Subsidiary or any direct or
indirect parent of the Borrower;
(v) payments
by the Borrower or any of its Restricted Subsidiaries to the Funds and the Fund
Affiliates made for any financial advisory, financing, underwriting or placement
services or in respect of other investment banking activities, including,
without limitation, in connection with acquisitions or divestitures, which
payments are (x) made pursuant to the agreements with the Funds and the Fund
Affiliates described in Schedule 6.07 or (y)
approved by a majority of the Board of Directors of the Borrower in good
faith;
(vi) transactions
in which the Borrower or any of its Restricted Subsidiaries, as the case may be,
delivers to the Administrative Agent a letter from an Independent Financial
Advisor stating that such transaction is fair to the Borrower or such Restricted
Subsidiary from a financial point of view or meets the requirements of clause
(i) of Section 6.07(a);
(vii) payments
or loans (or cancellation of loans) to employees or consultants which are
approved by a majority of the Board of Directors of the Borrower in good
faith;
(viii) any
agreement as in effect as of the Closing Date or any amendment thereto (so long
as any such agreement together with all amendments thereto, taken as a whole, is
not more disadvantageous to the Lenders in any material respect than the
original agreement as in effect on
the Closing Date) or any transaction contemplated thereby as determined in good
faith by senior management or the Board of Directors of the
Borrower;
(ix) the
existence of, or the performance by the Borrower or any of its Restricted
Subsidiaries of its obligations under the terms of, the Acquisition Documents,
any stockholders agreement (including any registration rights agreement or
purchase agreement related thereto) to which it is a party as of the Closing
Date and any transaction, agreement or arrangement described in Schedule 6.07
and, in each case, any amendment thereto or similar transactions, agreements or
arrangements which it may enter into thereafter; provided, however, that the
existence of, or the performance by the Borrower or any of its Restricted
Subsidiaries of its obligations under, any future amendment to any such existing
transaction, agreement or arrangement or under any similar transaction,
agreement or arrangement entered into after the Closing Date shall only be
permitted by this clause (ix) to the extent that the terms of any such existing
transaction, agreement or arrangement together with all amendments thereto,
taken as a whole, or new transaction, agreement or arrangement are not otherwise
more disadvantageous to the Lenders in any material respect than the original
transaction, agreement or arrangement as in effect on the Closing
Date;
(x) the
execution of the Transactions and the payment of all fees and expenses related
to the Transactions, including fees to the Funds and the Fund Affiliates, which
are described in Schedule 6.07 or contemplated by the Acquisition
Documents;
-94-
(xi) (A)
transactions with customers, clients, suppliers or purchasers or sellers of
goods or services, or transactions otherwise relating to the purchase or sale of
goods or services, in each case in the ordinary course of business and otherwise
in compliance with the terms of this Agreement, which are fair to the Borrower
and its Restricted Subsidiaries in the reasonable determination of the Board of
Directors or the senior management of the Borrower, or are on terms at least as
favorable as might reasonably have been obtained at such time from an
unaffiliated party or (B) transactions with joint ventures or Unrestricted
Subsidiaries entered into in the ordinary course of business;
(xii) any
transaction effected as part of a Qualified Receivables Financing;
(xiii) the
issuance of Equity Interests (other than Disqualified Stock) of the Borrower to
any Person;
(xiv) the
issuances of securities or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, stock
option and stock ownership plans or similar employee benefit plans approved by
the Board of Directors of the Borrower or any direct or indirect parent of the
Borrower or of a Restricted Subsidiary of the Borrower, as appropriate, in good
faith;
(xv) the
entering into of any tax sharing agreement or arrangement and any payments
permitted by Section 6.04(b)(xii);
(xvi) any
contribution to the capital of the Borrower;
(xvii) transactions
permitted by, and complying with, Section 6.05;
(xviii) transactions
between the Borrower or any of its Restricted Subsidiaries and any Person, a
director of which is also a director of the Borrower or any direct or indirect
parent of
the Borrower; provided, however, that such
director abstains from voting as a director of the Borrower or such direct or
indirect parent, as the case may be, on any matter involving such other
Person;
(xix) pledges
of Equity Interests of Unrestricted Subsidiaries;
(xx) any
employment agreements entered into by the Borrower or any of its Restricted
Subsidiaries in the ordinary course of business; and
(xxi) intercompany
transactions undertaken in good faith (as certified by a responsible financial
or accounting officer of the Borrower in an Officers’ Certificate) for the
purpose of improving the consolidated tax efficiency of the Borrower and its
Subsidiaries and not for the purpose of circumventing any covenant set forth in
this Agreement.
SECTION
6.08. Amendment of Security
Documents
. The
Borrower shall not amend, modify or supplement, or permit or consent to any
amendment, modification or supplement of, the Security Documents in any way that
would be adverse to the Lenders in any material respect, except as contemplated
by the Intercreditor Agreements or as permitted under Section 9.08.
-95-
SECTION
6.09. Termination and Suspension
of Certain Covenants
.
(a) If,
on any date following the Closing Date, (i) the Loans have Investment Grade
Ratings from both Rating Agencies, and the Borrower has delivered notice of such
Investment Grade Ratings to the Administrative Agent, and (ii) no Default
has occurred and is continuing under this Agreement, then beginning on that day
and continuing at all times thereafter regardless of any subsequent changes in
the ratings of the Loans, the Borrower and its Restricted Subsidiaries shall no
longer be subject to Section 5.10(d) hereof, Section 6.01 hereof, Section 6.03
hereof, Section 6.04 hereof, Section 6.06 hereof, Section 6.07 hereof and clause
(iv) of Section 6.05 hereof.
(b) During
any period of time when (i) the Loans have Investment Grade Ratings from both
Rating Agencies, and the Borrower has delivered notice of such Investment Grade
Ratings to the Administrative Agent, and (ii) no Default has occurred and
is continuing under this Agreement (the occurrence of the events described in
the foregoing clauses (i) and (ii) being collectively referred to as a
“Covenant Suspension
Event”), the Borrower and its Restricted Subsidiaries will not be subject
to Section 2.11 hereof (the “Suspended
Covenant”).
(c) In
the event that the Borrower and its Restricted Subsidiaries are not subject to
the Suspended Covenant under this Agreement for any period of time as a result
of the foregoing, and on any subsequent date (the “Reversion Date”) one
or both of the Rating Agencies withdraw their Investment Grade Rating or
downgrade the rating assigned to the Loans below an Investment Grade Rating then
the Borrower and its Restricted Subsidiaries shall thereafter again be subject
to the Suspended Covenant under this Agreement. The period of time
between the Covenant Suspension Event and the Reversion Date is referred to
herein as the “Suspension
Period.”
(d) In
the event that the Borrower and its Restricted Subsidiaries are not subject to
the Suspended Covenants and the Borrower or any of its Affiliates enter into an
agreement to effect a transaction that would result in a Change of Control and
one or more of the Rating Agencies indicate that if consummated, such
transaction (alone or together with any related recapitalization or refinancing
transactions) would cause such Rating Agency to withdraw its Investment Grade
Rating or downgrade the ratings assigned to the Loans below an Investment Grade
Rating, then the Borrower and its Restricted Subsidiaries
shall thereafter again be subject the Suspended Covenants hereof with respect to
future events, including, without limitation, a proposed transaction described
in this clause (d).
(e) The
Borrower shall deliver promptly to the Administrative Agent an Officer’s
Certificate notifying it of any occurrence under this Section 6.09.
ARTICLE
VII
Events
of Default
SECTION
7.01. Events of
Default
. Subject
to Section 9.21, in case of the happening of any of the following events (each,
an “Event of
Default”):
(a) any
representation or warranty made or deemed made by the Borrower or any other
Subsidiary Loan Party herein or in any other Loan Document or any certificate or
document delivered pursuant hereto or thereto shall prove to have been false or
misleading in any material respect when so made or deemed made;
-96-
(b) default
shall be made in the payment of any principal of any Loan 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 in the payment of
any Fee or any other amount (other than an amount referred to in (b) above) due
under any Loan Document, when and as the same shall become due and payable, and
such default shall continue unremedied for a period of five Business
Days;
(d) default
shall be made in the due observance or performance by the Borrower or any of the
Subsidiaries of any covenant, condition or agreement contained in
Section 5.01(a), 5.05(a) or 5.08 or in Article VI;
(e) default
shall be made in the due observance or performance by the 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 (or 60 days
if such default results solely from a Foreign Subsidiary’s failure to duly
observe or perform any such covenant, condition or agreement) after notice
thereof from the Administrative Agent to the 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) the
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 (a) secured Indebtedness that becomes due as
a result of the voluntary sale or transfer of the property or assets securing
such Indebtedness if such sale or transfer is permitted hereunder and under the
documents providing for such Indebtedness or (b) Indebtedness that becomes due
pursuant to a change of control provision provided that the Borrower complies
with the provisions of Section 2.11 hereof with respect to such
event;
(g) [Reserved];
(h) an
involuntary proceeding shall be commenced or an involuntary petition shall be
filed in a court of competent jurisdiction seeking (i) relief in respect of
Holdings, the Borrower or any of the Subsidiaries, or of a substantial part of
the property or assets of the Holdings, Borrower or any 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, the Borrower or any of the
Subsidiaries or for a substantial part of the property or assets of Holdings,
the Borrower or any of the Subsidiaries or (iii) the winding-up or liquidation
of Holdings, the Borrower or any Subsidiary (except, in the case of any
Subsidiary, in a transaction permitted by Section 6.05); and such
proceeding or petition shall continue undismissed for 60 days or an order or
decree approving or ordering any of the foregoing shall be entered;
(i) Holdings,
the Borrower or any 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) 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, the Borrower or any
of the Subsidiaries or for a substantial part of the property or assets of
Holdings, the Borrower or any 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 or
admit in writing its inability or fail generally to pay its debts as they become
due;
-97-
(j) the
failure by the Borrower or any Subsidiary to pay one or more final judgments
aggregating in excess of $35 million (to the extent not covered by insurance),
which judgments are not discharged or effectively waived or stayed for a period
of 45 consecutive days;
(k) (i)
a trustee shall be appointed by a United States district court to administer any
Plan, (ii) an ERISA Event or ERISA Events shall have occurred with respect to
any Plan or Multiemployer Plan, (iii) the PBGC shall institute proceedings
(including giving notice of intent thereof) to terminate any Plan or Plans, (iv)
the 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,
or (v) the Borrower or any Subsidiary shall engage in any “prohibited
transaction” (as defined in Section 406 of ERISA or Section 4975 of
the Code) involving any Plan; and in each case in clauses (i) through (v)
above, such event or condition, together with all other such events or
conditions, if any, would reasonably be expected to have a Material Adverse
Effect;
(l) (i)
any Loan Document shall for any reason be asserted in writing by the Borrower or
any 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 the Borrower and the
Subsidiaries on a consolidated basis shall cease to be, or shall be asserted in
writing by the Borrower or any other Subsidiary Loan Party not to be, a valid
and perfected security interest (perfected as or having the priority required by
this Agreement or the relevant Security Document and subject to such limitations
and restrictions as are set forth herein and therein) in the securities, assets
or properties covered thereby, except to the extent that any such loss of
perfection or priority results from the limitations of foreign laws, rules
and
regulations as they apply to pledges of Equity Interests in Foreign Subsidiaries
or the application thereof, or from the failure of the Administrative Agent to
maintain possession of certificates actually delivered to it representing
securities pledged under the Collateral Agreement or to file Uniform Commercial
Code continuation statements or take the actions described on Schedule 3.04
and except to the extent that such loss is covered by a Lender’s title insurance
policy and the Administrative Agent shall be reasonably satisfied with the
credit of such insurer, or (iii) the Guarantees pursuant to the Security
Documents by the Borrower 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 the Borrower or any
Subsidiary Loan Party not to be in effect or not to be legal, valid
and binding obligations;
(m) (i)
the Obligations shall fail to constitute “Senior Debt” (or the equivalent
thereof) and “Designated Senior Debt” (or the equivalent thereof) under the
Senior Subordinated Notes Indentures and under the documentation governing any
Indebtedness incurred pursuant to Section 6.01 constituting subordinated
Indebtedness or any Refinancing Indebtedness in respect of the Senior
Subordinated Notes or such Indebtedness incurred pursuant to Section 6.01
constituting subordinated Indebtedness, or (ii) the subordination provisions
thereunder shall be invalidated or otherwise cease, or shall be asserted in
writing by the Borrower or any Subsidiary Loan Party to be invalid or to cease
to be legal, valid and binding obligations of the parties thereto, enforceable
in accordance with their terms; or
-98-
(n) there
shall occur and be continuing an “Event of Default” under and as defined in the
Senior Secured Credit Facilities;
then, and
in every such event (other than an event with respect to the Borrower described
in paragraph (h) or (i) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the
Required Lenders, shall, by notice to the Borrower, take any or all of the
following actions, at the same or different times: (i) terminate
forthwith the Commitments, and (ii) declare the Loans then outstanding to be
forthwith due and payable in whole or in part, whereupon the principal of the
Loans so declared to be due and payable, together with accrued interest thereon
and any unpaid accrued Fees and all other liabilities of the Borrower accrued
hereunder and under any other Loan Document, shall become forthwith due and
payable, without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived by the Borrower, anything contained
herein or in any other Loan Document to the contrary notwithstanding; and in any
event with respect to the Borrower described in paragraph (h) or (i) above,
the Commitments shall automatically terminate, and the principal of the Loans
then outstanding, together with accrued interest thereon and any unpaid accrued
Fees and all other liabilities of the Borrower accrued hereunder and under any
other Loan Document, shall automatically become due, without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by the Borrower, anything contained herein or in any other Loan
Document to the contrary notwithstanding.
SECTION
7.02. Exclusion of Immaterial
Subsidiaries
. Solely
for the purposes of determining whether an Event of Default has occurred under
clause (h), (i) or (l) of Section 7.01, any reference in any such
clause to any Subsidiary shall be deemed not to include any Immaterial
Subsidiary affected by any event or circumstance referred to in any such
clause.
ARTICLE
VIII
The
Agents
SECTION
8.01. Appointment
.
(a) Each
Lender hereby irrevocably designates and appoints the Administrative Agent as
the agent of such Lender under this Agreement and the other Loan Documents,
including as a Collateral Agent for such Lender and the other Secured Parties
under the Security Documents and with respect to any responsibilities under the
Intercreditor Agreements, and each such Lender irrevocably authorizes the
Administrative Agent, in such capacity, to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto
(including with respect to any responsibilities under the Intercreditor
Agreements). In addition, to the extent required under the laws of
any jurisdiction other than the United States, each of the Lenders hereby grants
to the Administrative Agent any required powers of attorney to execute any
Security Document governed by the laws of such jurisdiction on such Lender’s
behalf. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
-99-
(b) In
furtherance of the foregoing, each Lender hereby appoints and authorizes the
Collateral Agent to act as the agent of such Lender for purposes of acquiring,
holding and enforcing any and all Liens on Collateral granted by any of the Loan
Parties to secure any of the Obligations, together with such powers and
discretion as are reasonably incidental thereto and to enter into and take such
action on its behalf under the provisions of the Senior Lender Intercreditor
Agreement, the Second Priority Intercreditor Agreement and the Senior Fixed
Lender Intercreditor Agreement and to exercise such powers and perform such
duties as are expressly delegated to the Collateral Agent by the terms of the
Senior Lender Intercreditor Agreement, Second Priority Intercreditor Agreement
and the Senior Fixed Lender Intercreditor Agreement together with such other
powers as are reasonably incidental thereto. In this connection, the
Collateral Agent (and any Subagents appointed by the Collateral Agent pursuant
to Section 8.02 for purposes of holding or enforcing any Lien on the Collateral
(or any portion thereof) granted under the Security Documents, or for exercising
any rights or remedies thereunder at the direction of the Collateral Agent)
shall be entitled to the benefits of this Article VIII (including, without
limitation, Section 8.07) as though the Collateral Agent (and any such
Subagents) were an “Agent” under the Loan Documents, as if set forth in full
herein with respect thereto.
(c) Each
Lender irrevocably authorizes each of the Administrative Agent and the
Collateral Agent, at its option and in its discretion, (i) to release any Lien
on any property granted to or held by the Collateral Agent under any Loan
Document (A) upon termination of the Commitments and payment in full of all
Obligations (other than contingent indemnification obligations), (B) that is
sold or to be sold as part of or in connection with any sale permitted hereunder
or under any other Loan Document, or (C) if approved, authorized or ratified in
writing in accordance with Section 9.08 hereof, (ii) to release any Subsidiary
Loan Party from its obligations under the Loan Documents if such Person ceases
to be a Subsidiary as a result of a transaction permitted hereunder and (iii) to
subordinate any Lien on any property granted to or held by the Collateral Agent
under any Loan Document to the holder of any Permitted Lien in respect of a
Capitalized Lease Obligation to be incurred hereunder. Upon request
by the Administrative Agent or the Collateral Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent’s and the Collateral
Agent’s authority to release its interest in particular types or items of
property, or to release any Subsidiary Loan Party from its obligations under the
Loan Documents.
(d) In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, (i) the Administrative Agent
(irrespective of whether the principal of any Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or otherwise
(A) to file and prove a claim for the whole amount of the principal and interest
owing and unpaid in respect of any or all of the Obligations that are owing and
unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders and the Administrative Agent and any
Subagents allowed in such judicial proceeding, and (B) to collect and receive
any monies or other property payable or deliverable on any such claims and to
distribute the same, and (ii) any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, if the Administrative Agent shall consent to the
making of such payments directly to the Lenders, to pay to the Administrative
Agent any amount due for the reasonable compensation, expenses, disbursements
and advances of the Administrative Agent and its agents and counsel, and any
other amounts due the Administrative Agent under the Loan
Documents. Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.
-100-
SECTION
8.02. Delegation of
Duties
. The
Administrative Agent may execute any of its duties under this Agreement and the
other Loan Documents (including for purposes of holding or enforcing any Lien on
the Collateral (or any portion thereof) by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such
duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care. The Administrative Agent may also from time to time,
when the Administrative Agent deems it to be necessary or desirable, appoint one
or more trustees, co-trustees, collateral co-agents, collateral subagents or
attorneys-in-fact (each, a “Subagent”) with
respect to all or any part of the Collateral; provided that no such
Subagent shall be authorized to take any action with respect to any Collateral
unless and except to the extent expressly authorized in writing by the
Administrative Agent. Should any instrument in writing from the
Borrower or any other Loan Party be required by any Subagent so appointed by the
Administrative Agent to more fully or certainly vest in and confirm to such
Subagent such rights, powers, privileges and duties, the Borrower shall, or
shall cause such Loan Party to, execute, acknowledge and deliver any and all
such instruments promptly upon request by the Administrative
Agent. If any Subagent, or successor thereto, shall die, become
incapable of acting, resign or be removed, all rights, powers, privileges and
duties of such Subagent, to the extent permitted by law, shall automatically
vest in and be exercised by the Administrative Agent until the appointment of a
new Subagent. The Administrative Agent shall not be responsible for
the negligence or misconduct of any agent, attorney-in-fact or Subagent that it
selects in accordance with the foregoing provisions of this Section 8.02 in the
absence of the Administrative Agent’s gross negligence or willful
misconduct.
SECTION
8.03. Exculpatory
Provisions
. Neither
any Agent or its Affiliates nor any of their respective officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (a) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Loan Document (except to the extent
that any of the foregoing are found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted from its or such person’s
own gross negligence or willful misconduct) or (b) responsible in any manner to
any of the Lenders for any recitals, statements, representations or warranties
made by any Loan Party or any officer thereof contained in this Agreement or any
other Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agents under or in connection
with, this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or for any failure of any Loan Party a party thereto to
perform its obligations hereunder or thereunder. The Agents shall not
be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of any Loan Party. The Administrative Agent shall
not have any duties or obligations except those expressly set forth herein and
in the other Loan Documents. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default or Event of Default has
occurred and is continuing, and (b) the Administrative Agent shall not, except
as expressly set forth herein and in the other Loan Documents, have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower or any of its Affiliates that is communicated to or
obtained by the Person serving as the Administrative Agent or any of its
Affiliates in any capacity. The Administrative Agent shall be deemed
not to have knowledge of any Default or Event of Default unless and until
written notice describing such Default or Event of Default is given to the
Administrative Agent by the Borrower or a Lender. The Administrative
Agent shall not be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or therein
or the occurrence of any Default or Event of Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document, or the creation,
perfection or priority of any Lien purported to be created by the Security
Documents, (v) the value or the sufficiency of any Collateral, or (vi) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
-101-
SECTION
8.04. Reliance by Administrative
Agent
. The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) or
conversation believed by it to be genuine and to have been signed, sent or
otherwise authenticated by the proper person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper person, and shall not incur any
liability for relying thereon. In determining compliance with any
condition hereunder to the making of a Loan hereunder, that by its terms must be
fulfilled to the satisfaction of a Lender, the Administrative Agent may presume
that such condition is satisfactory to such Lender unless the Administrative
Agent shall have received notice to the contrary from such Lender prior to the
making of such Loan. The Administrative Agent may consult with legal
counsel (including counsel to the Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts. The Administrative Agent may deem and treat the payee of any
Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders (or, if so specified by this Agreement, all or other
Lenders) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense that may
be incurred by it by reason of taking or continuing to take any such
action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement
and the other Loan Documents in accordance with a request of the Required
Lenders (or, if so specified by this Agreement, all or other Lenders), and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders and all future holders of the Loans.
SECTION
8.05. Notice of
Default
. The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default unless the Administrative Agent
has received written notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a “notice of default.” In the event that the Administrative
Agent receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders (or, if so specified by this Agreement, all or
other Lenders); provided that unless
and until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the
Lenders.
SECTION
8.06. Non-Reliance on Agents and
Other Lenders
. Each
Lender expressly acknowledges that neither the Agents nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates have made any representations or warranties to it and that no act by
any Agent hereafter taken, including any review of the affairs of a Loan Party
or any affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by any Agent to any Lender. Each Lender
represents to the Agents that it has, independently and without reliance upon
any Agent or any other Lender, and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates and made its own
decision to make its Loans hereunder and enter into this
Agreement. Each Lender also represents that it will, independently
and without reliance upon any Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any affiliate of
a Loan Party that may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
-102-
SECTION
8.07. Indemnification
. The
Lenders agree to indemnify each Agent in its capacity as such (to the extent not
reimbursed by the Borrower and without limiting the obligation of the Borrower
to do so), in the amount of its pro rata share (based on its
outstanding Loans), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever that may at any time (whether before or
after the payment of the Loans) be imposed on, incurred by or asserted against
such Agent in any way relating to or arising out of the Commitments, this
Agreement, any of the other Loan Documents (including, without limitation, the
Senior Lender Intercreditor Agreement, the Second Priority Intercreditor
Agreement and the Senior Fixed Lender Intercreditor Agreement) or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; provided that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or
disbursements that are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from such Agent’s gross negligence or
willful misconduct. The failure of any Lender to reimburse any Agent,
promptly upon demand for its ratable share of any amount required to be paid by
the Lenders to such Agent as provided herein shall not relieve any other Lender
of its obligation hereunder to reimburse such Agent for its ratable share of
such amount, but no Lender shall be responsible for the failure of any other
Lender to reimburse such Agent for such other Lender’s ratable share of such
amount. The agreements in this Section shall survive the payment of
the Loans and all other amounts payable hereunder.
SECTION
8.08. Agent in Its Individual
Capacity
. Each
Agent and its affiliates may make loans to, accept deposits from, and generally
engage in any kind of business with any Loan Party as though such Agent were not
an Agent. With respect to its Loans made or renewed by it, each Agent
shall have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not an
Agent, and the terms “Lender” and “Lenders” shall include each Agent in its
individual capacity.
SECTION
8.09. Successor Administrative
Agent
. The
Administrative Agent may resign as Administrative Agent upon 10 days’ notice to
the Lenders and the Borrower. If the Administrative Agent shall
resign as Administrative Agent under this Agreement and the other Loan
Documents, then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders, which successor agent shall (unless an Event of
Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be
continuing) be subject to approval by the Borrower (which approval shall not be
unreasonably withheld or delayed), whereupon such successor agent shall succeed
to the rights, powers and duties of the Administrative Agent, and the term
“Administrative Agent” shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent’s rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no
successor agent has accepted appointment as Administrative Agent by the date
that is 10 days following a retiring Administrative Agent’s notice of
resignation, the retiring Administrative Agent’s resignation shall nevertheless
thereupon become effective, and the retiring Administrative Agent shall, on
behalf of the Lenders, appoint a successor agent which shall (unless an Event of
Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be
continuing) be subject to approval by the Borrower (which approval shall not be
unreasonably withheld or delayed). After any retiring Administrative
Agent’s resignation as Administrative Agent, the provisions of this Section 8.09
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement and the other Loan
Documents.
-103-
SECTION
8.10. Agents and
Arrangers
. Neither
the Syndication Agent, the Documentation Agent nor any of the Joint Lead
Arrangers shall have any duties, obligations or responsibilities hereunder in
its capacity as such.
ARTICLE
IX
Miscellaneous
SECTION
9.01. Notices;
Communications
.
(a) Except
in the case of notices and other communications expressly permitted to be given
by telephone (and except as provided in Section 9.01(b) below), all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier as follows, and all notices and other
communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:
(i) if
to any Loan Party or to the Administrative Agent, to the address, telecopier
number, electronic mail address or telephone number specified for such Person on
Schedule 9.01;
and
(ii) if
to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.
(b) Notices
and other communications to the Lenders hereunder may be delivered or furnished
by electronic communication (including e-mail and Internet or intranet websites)
pursuant to procedures approved by the Administrative Agent; provided that the
foregoing shall not apply to notices to any Lender pursuant to Article II if
such Lender has notified the Administrative Agent that it is incapable of
receiving notices under such Article by electronic communication. The
Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it, provided that
approval of such procedures may be limited to particular notices or
communications.
(c) Notices
sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received. Notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to
the extent provided in Section 9.01(b) above shall be effective as provided in
such Section 9.01(b).
-104-
(d) Any
party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto.
(e) Documents
required to be delivered pursuant to Section 5.04 (to the extent any such
documents are included in materials otherwise filed with the SEC) may be
delivered electronically (including as set forth in Section 9.17) and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Borrower posts such documents, or provides a link thereto on the Borrower’s
website on the Internet at the website address listed on Schedule 9.01, or
(ii) on which such documents are posted on the Borrower’s behalf on an Internet
or intranet website, if any, to which each Lender and the Administrative Agent
have access (whether a commercial, third-party website or whether sponsored by
the Administrative Agent); provided that (A) the
Borrower shall deliver paper copies of such documents to the Administrative
Agent or any Lender that requests the Borrower to deliver such paper copies
until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender, and (B) the Borrower shall notify the
Administrative Agent and each Lender (by telecopier or electronic mail) of the
posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of
such documents. Notwithstanding anything contained herein, in every
instance the Borrower shall be required to provide paper copies of the
certificates required by Section 5.04(c) to the Administrative
Agent. Except for such certificates required by Section 5.04(c), the
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the Borrower with any such request
for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.
SECTION
9.02. Survival of
Agreement
. Except
as provided in Section 5.12(e), 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 shall survive the making
by the Lenders of the Loans and the execution and delivery of the Loan
Documents, 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 any Fee or any other amount payable under
this Agreement or any other Loan Document is outstanding and
unpaid. Without prejudice to the survival of any other agreements
contained herein, indemnification and reimbursement obligations contained herein
(including pursuant to Sections 2.15, 2.17 and 9.05) shall survive the payment
in full of the principal and interest hereunder, 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 the
Borrower and the Administrative Agent and when the Administrative Agent shall
have been notified by each Lender (or otherwise received evidence satisfactory
to the Administrative Agent) that such Lender has executed it and thereafter
shall be binding upon and inure to the benefit of the Borrower, the
Administrative Agent 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,
except that (i) the Borrower may not 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 the 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 9.04. Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants (to the
extent provided in paragraph (c) of this Section 9.04), and, to the
extent expressly contemplated hereby, the Related Parties of each of the Agents
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement or the other Loan Documents.
-105-
(b) (i) Subject
to the conditions set forth in paragraph (b)(ii) below, any Lender may
assign to one or more assignees (each, an “Assignee”) all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitments and the Loans at the time owing to it) with the prior
written consent of: (A) prior to the Rollover Date, the Borrower with respect to
any assignment if, subsequent thereto, any Lenders on the Closing Date
(including any Affiliates that are reasonably acceptable to the Borrower) would
hold, individually, less than 50.1% of the outstanding Loans originally held by
such Lender on the Closing Date; and (B) the Administrative Agent; provided that no
consent of the Administrative Agent shall be required for an assignment of all
or any portion of a Loan to a Lender, an Affiliate of a Lender or an Approved
Fund.
(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 Commitments or Loans under any Facility, the amount of the Commitments
or Loans 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 $1.0 million,
unless each of the Borrower and the Administrative Agent otherwise consent;
provided that
(1) no such consent of the Borrower shall be required if an Event of Default
under
Sections 7.01(b), (c), (h) or (i) has occurred and is continuing and (2) such
amounts shall be aggregated in respect of each Lender and its Affiliates or
Approved Funds (with simultaneous assignments to or by two or more Related Funds
shall be treated as one assignment), if any;
(B) the
parties to each assignment shall execute and deliver to the Administrative Agent
an Assignment and Acceptance via an electronic settlement system acceptable to
the Administrative Agent (or, if previously agreed with the Administrative
Agent, manually), and shall pay to the Administrative Agent a processing and
recordation fee of
$3,500 (which fee may be waived or reduced in the sole discretion of the
Administrative Agent);
(C) the
Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire and all applicable tax forms; and
(D)
the Assignee shall not be the Borrower, any of the Borrower’s Affiliates or its
Subsidiaries.
For the
purposes of this Section 9.04, “Approved Fund” means
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 and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender. Notwithstanding the foregoing, no
Lender shall be permitted to assign or transfer any portion of its rights and
obligations under this Agreement to an Ineligible Institution without the prior
written consent of the Borrower.
(iii) Subject
to acceptance and recording thereof pursuant to paragraph (b)(v) below,
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
thereunder 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 9.04.
-106-
(iv) The
Administrative Agent, acting for this purpose as an agent of the 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 Commitments of, and principal amount of the Loans 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 Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the
Borrower 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 Assignee’s completed Administrative
Questionnaire (unless the Assignee shall already be a Lender hereunder), all
applicable tax forms, 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 shall
promptly accept such Assignment and Acceptance and record the information
contained therein in the Register. No assignment, whether or not
evidenced
by a promissory note, shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this
paragraph (b)(v).
(c) (ii) Any
Lender may, without the consent of the Borrower or the Administrative Agent,
sell participations to one or more banks or other entities (a “Participant”) in all
or a portion of such Lender’s rights and obligations under this Agreement
(including all or a portion of its Commitments 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 Borrower, the Administrative Agent
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 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 may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver that (1) requires
the consent of each Lender directly affected thereby pursuant to
Section 9.04(a)(i) or clauses (i), (ii), (iii), (iv), (v) or (vi) of
the first proviso to Section 9.08(b) and (2) directly affects such
Participant and (y) no other agreement with respect to amendment, modification
or waiver may exist between such Lender and such Participant. Subject
to paragraph (c)(ii) of this Section 9.04, the Borrower agrees that
each 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 9.04. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 9.06 as though it were a
Lender, provided such
Participant agrees to be subject to Section 2.18(c) as though it were a
Lender.
(ii) A
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 Participant,
unless the sale of the participation to such Participant is made with the
Borrower’s prior written consent. A Participant shall not be entitled
to the benefits of Section 2.17 to the extent such Participant fails to
comply with Section 2.17(e) and (f) as though it were a
Lender.
-107-
(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 9.04 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.
(e) The
Borrower, upon receipt of written notice from the relevant Lender, agrees to
issue Notes to any Lender requiring Notes to facilitate transactions of the type
described in paragraph (d) above.
(f) Notwithstanding
the foregoing, any Conduit Lender may assign any or all of the Loans it may have
funded hereunder to its designating Lender without the consent of the Borrower
or the Administrative Agent. Each of the Borrower, each Lender and
the Administrative Agent hereby confirms that it will not institute against a
Conduit Lender or join any other Person in instituting against a Conduit Lender
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding under any state bankruptcy or similar law, for one year and one day
after the payment in full of the latest maturing commercial paper note issued by
such Conduit Lender; provided, however, that each
Lender designating any Conduit Lender hereby agrees to indemnify, save and hold
harmless each other party hereto and each Loan Party for any loss, cost, damage
or expense arising out of its inability to institute such a proceeding against
such Conduit Lender during such period of forbearance.
(g) If
the Borrower wishes to replace the Loans or Commitments under any Facility with
ones having different terms, it shall have the option, with the consent of the
Administrative Agent and subject to at least three Business Days’ advance notice
to the Lenders under such Facility, instead of prepaying the Loans or reducing
or terminating the Commitments to be replaced, to (i) require the Lenders under
such Facility to assign such Loans or Commitments to the Administrative Agent or
its designees and (ii) amend the terms thereof in accordance with
Section 9.08 (with such replacement, if applicable, being deemed to have
been made pursuant to Section 9.08(d)). Pursuant to any such
assignment, all Loans and Commitments to be replaced shall be purchased at par
(allocated among the Lenders under such Facility in the same manner as would be
required if such Loans were being optionally prepaid or such Commitments were
being optionally reduced or terminated by the Borrower), accompanied by payment
of any accrued interest and fees thereon and any other amounts owing pursuant to
Section 9.05(b). By receiving such purchase price, the Lenders
under such Facility shall automatically be deemed to have assigned the Loans or
Commitments under such Facility pursuant to the terms of the form of Assignment
and Acceptance attached hereto as Exhibit A, and
accordingly no other action by such Lenders shall be required in connection
therewith. The provisions of this paragraph (g) are intended to
facilitate the maintenance of the perfection and priority of existing security
interests in the Collateral during any such replacement.
(h) Notwithstanding
the foregoing, no assignment may be made to an Ineligible Institution without
the prior written consent of the Borrower.
SECTION
9.05. Expenses;
Indemnity
.
(a) The
Borrower agrees to pay (i) 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 by the
Administrative Agent in connection with the syndication of the Commitments or
the administration of this Agreement (including expenses incurred in connection
with due diligence and initial and ongoing Collateral examination to the extent
incurred with the reasonable prior approval of the Borrower and the reasonable
fees, disbursements and charges for no more than one counsel in each
jurisdiction where Collateral is located) or in connection with the
administration of this Agreement and any amendments, modifications or waivers of
the provisions hereof or thereof (whether or not the Transactions hereby
contemplated shall be consummated), including the reasonable fees, charges and
disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the
Administrative Agent and the Joint Lead Arrangers, and, if necessary, the
reasonable fees, charges and disbursements of one local counsel per
jurisdiction, and (ii) all out-of-pocket expenses (including Other Taxes)
incurred by the Administrative Agent 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 hereunder, including
the fees, charges and disbursements of counsel for the Administrative Agent
(including any special and local counsel).
-108-
(b) The
Borrower agrees to indemnify the Administrative Agent, the Agents, the Joint
Lead Arrangers, each Lender, each of their respective Affiliates and each of
their respective directors, trustees, officers, employees, agents, trustees and
advisors (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 (except the allocated costs of in-house counsel), 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 (including, without limitation, the Senior Lender Intercreditor
Agreement, the Second Priority Intercreditor Agreement and the Senior Fixed
Lender Intercreditor Agreement) 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 (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto and regardless of whether such
matter is initiated by a third party or by the Borrower or any of their
subsidiaries or Affiliates; 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
final, non-appealable judgment of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Indemnitee (for
purposes of this proviso only, each of the Administrative Agent, the Joint Lead
Arrangers or any Lender shall be treated as several and separate
Indemnitees). Subject to and without limiting the generality of the
foregoing sentence, the Borrower agrees to indemnify each Indemnitee against,
and hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel or consultant
fees, charges and disbursements (limited to not more than one counsel, plus, if
necessary, one local counsel per jurisdiction) (except the allocated costs of
in-house counsel), incurred by or asserted against any Indemnitee arising out
of, in any way connected with, or as a result of (A) any claim related in any
way to Environmental Laws and the 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 Property; 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. None of the Indemnitees (or any of their respective
affiliates) shall be responsible or liable to the Funds, the Borrower or any of
their respective subsidiaries, Affiliates or stockholders or any other Person or
entity for any special, indirect, consequential or punitive damages, which may
be alleged as a result of the Facilities or the Transactions. 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 the Administrative Agent 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.
-109-
(c) 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.
(d) To
the fullest extent permitted by applicable law, the Borrower shall not assert,
and hereby waive, any claim against any Indemnitee, on any theory of liability,
for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter of
Credit or the use of the proceeds thereof. No Indemnitee shall be
liable for any damages arising from the use by unintended recipients of any
information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby.
(e) The
agreements in this Section 9.05 shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination of the
Commitments and the repayment, satisfaction or discharge of all the other
Obligations and the termination of this Agreement.
SECTION
9.06. Right of
Set-off
. If
an Event of Default shall have occurred and be continuing, each Lender 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 to or for
the credit or the account of the Borrower or any Subsidiary against any of and
all the obligations of the Borrower now or hereafter existing under this
Agreement or any other Loan Document held by such Lender, irrespective of
whether or not such Lender 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 under this Section 9.06 are
in addition to other rights and remedies (including other rights of set-off)
that such Lender 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, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
SECTION
9.08. Waivers;
Amendment.
(a) No
failure or delay of the Administrative Agent or any Lender in exercising any
right or power hereunder or under any Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative
Agent 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 the 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 the 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.
-110-
(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 Borrower
and the Required Lenders, and (y) in the case of any other Loan Document,
pursuant to an agreement or agreements in writing entered into by each party
thereto and the Administrative Agent (or, in the case of any Security Documents,
the Collateral Agent if so provided therein) and consented to by the Required
Lenders; 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 extend the Rollover Date or the Rollover
Loan Maturity Date of any Rollover Loans, without the prior written consent of
each Lender directly affected thereby,
(ii) increase
or extend the Commitment of any Lender or decrease the 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
any date on which payment of interest on any Loan or any Fees is due, without
the prior written consent of each Lender adversely affected
thereby,
(iv) amend
the provisions of Section 6.02 of the Collateral Agreement 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 9.08 or the definition of the term
“Required 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 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 any of the Borrower or all or
substantially all of the Subsidiary Loan Parties from their respective
Guarantees under the Collateral Agreement, 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; and
(vii) [Reserved];
provided, further, that no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent hereunder without the prior written consent of the
Administrative Agent 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.
-111-
(c) Without
the consent of the Syndication Agent, the Documentation Agent or any Joint Lead
Arranger or Lender, the Loan Parties and the Administrative 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) Prior
to the Rollover Date, the Exchange Notes Indenture and the Registration Rights
Agreement may be amended or modified pursuant to an agreement or agreements
entered into by the Borrower and the Administrative Agent without the consent of
any Lenders; provided that (I) no such agreement may amend or modify any
provision thereof which, had the Exchange Notes been outstanding, would have
required the consent or approval of holders of a majority in principal amount of
Exchange Notes, unless the approval of the Required Lenders is obtained, and
(II) no such agreement may amend or modify any provision thereof
which, had Exchange Notes been outstanding, would have required the consent or
approval of each holder of Exchange Notes or each holder of Exchange Notes so
affected, unless the written approval of each Lender or each Lender so affected,
as applicable, is obtained. From and after the Rollover Date, the
Exchange Notes Indenture may be waived, amended or modified only in accordance
with its terms.
(e) Notwithstanding
the foregoing, this Agreement may be amended (or amended and restated) with the
written consent of the Required Lenders, the Administrative Agent and the
Borrower (a) to add one or more additional credit facilities to this Agreement
and to permit the extensions of
--
-112-
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 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.
(f) Notwithstanding
anything to the contrary, this Agreement and the Loan Documents shall be amended
(or amended and restated) with the consent of the Administrative Agent (not to
be unreasonably withheld) and the Borrower, and without notice to or the consent
of any Lender, in order to effect the provisions of Sections 2.01(d), 5.13, 6.02
and 9.21 hereof
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,
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, shall be limited to the Maximum Rate;
provided, that
such excess amount shall be paid to such Lender 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.
-113-
SECTION
9.11. WAIVER OF JURY
TRIAL
. EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY
OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 9.11.
SECTION
9.12. Severability
. In
the event any one or more of the provisions contained in this Agreement or in
any other Loan Document should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
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 (or other electronic transmission pursuant
to procedures approved by the Administrative Agent) 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 the parties hereto 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 (collectively, “New York Courts”), 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 party may otherwise have to bring any action or proceeding relating to
this Agreement or any of the other Loan Documents in the courts of any
jurisdiction, except that each of the Loan Parties agrees that (a) it will not
bring any such action or proceeding in any court other than New York Courts (it
being acknowledged and agreed by the parties hereto that any other forum would
be inconvenient and inappropriate in view of the fact that more of the Lenders
who would be affected by any such action or proceeding have contacts with the
State of New York than any other jurisdiction), and (b) in any such action or
proceeding brought against any Loan Party in any other court, it will not assert
any cross-claim, counterclaim or setoff, or seek any other affirmative relief,
except to the extent that the failure to assert the same will preclude such Loan
Party from asserting or seeking the same in the New York Courts.
-114-
(b) Each
of the parties hereto 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.
SECTION
9.16. Confidentiality
. Each
of the Lenders and each of the Agents agrees that it shall maintain in
confidence any information relating to the Borrower and any Subsidiary furnished
to it by or on behalf of the Borrower or any Subsidiary (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
or such Agent without violating this Section 9.16 or (c) was available to
such Lender or such Agent from a third party that, to such Person’s knowledge,
is not in breach of the confidentiality provisions) 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, or
examinations by,
Governmental Authorities or self-regulatory authorities, including the National
Association of Insurance Commissioners or the National Association of Securities
Dealers, Inc., (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 pledge under
Section 9.04(d) or any other 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 or other provisions at least as restrictive as 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 9.16 or
other provisions at least as restrictive).
SECTION
9.17. Platform; Borrower
Materials
. The
Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint
Lead Arrangers will make available to the Lenders materials and/or information
provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”)
by posting the Borrower Materials on IntraLinks or another similar electronic
system (the “Platform”), and (b)
certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not
wish to receive material non-public information with respect to the Borrower or
its securities) (each, a “Public
Lender”). The Borrower hereby agrees that it will use
commercially reasonable efforts to identify that portion of the Borrower
Materials that may be distributed to the Public Lenders and that (i) all such
Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at
a minimum, shall mean that the word “PUBLIC” shall appear prominently on the
first page thereof, (ii) by marking Borrower Materials “PUBLIC,” the Borrower
shall be deemed to have authorized the Administrative Agent, the Joint Lead
Arrangers and the Lenders to treat such Borrower Materials as either publicly
available information or not material information (although it may be sensitive
and proprietary) with respect to the Borrower or its securities for purposes of
United States Federal and state securities laws, (iii) all Borrower Materials
marked “PUBLIC” are permitted to be made available through a portion of the
Platform designated “Public Investor” and (iv) the Administrative Agent and the
Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are
not marked “PUBLIC” as being suitable only for posting on a portion of the
Platform not designated “Public Investor.”
-115-
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 the Equity Interests or
assets of any Subsidiary Loan Party 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 Collateral Agent shall promptly (and the Lenders hereby authorize the
Collateral Agent to) take such action and execute any such documents as may be
reasonably requested by the Borrower and at the Borrower’s expense to release
any Liens created by any Loan Document in respect of such Equity Interests or
assets, and, in the case of a disposition of the Equity Interests of any
Subsidiary Loan Party 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. In addition, the Collateral Agent agrees to take such
actions as are reasonably requested by the Borrower and at the Borrower’s
expense to terminate the Liens and security interests created by the Loan
Documents when all the Obligations (other than contingent indemnification
Obligations) are paid in full and all Commitments are
terminated. Any representation, warranty or covenant contained
in any Loan Document relating to any such Equity Interests, asset or subsidiary
of the Borrower 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. PATRIOT Act
Notice
. Each
Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act
(Title III of Pub. L. 107-56 (signed
into law October 26, 2001)) (the “Act”), it is required
to obtain, verify and record information that identifies each Loan Party, which
information includes the name and address of each Loan Party and other
information that will allow such Lender or the Administrative Agent, as
applicable, to identify each Loan Party in accordance with the Act.
SECTION
9.20. Intercreditor Agreements and
Collateral Agreement
. Each
Lender hereunder (a) consents to the priority and/or subordination of Liens
provided for in the Senior Lender Intercreditor Agreement, (b) consents to the
priority and/or subordination of Liens provided for in the Second Priority
Intercreditor Agreement, (c) consents to the priority and/or subordination of
Liens provided for in the Senior Fixed Lender Intercreditor Agreement, (d)
agrees that it will be bound by and will take no actions contrary to the
provisions of the Intercreditor Agreements and (f) authorizes and instructs the
Administrative Agent and the Collateral Agent to enter into the Senior Lender
Intercreditor Agreement, the Second Priority Intercreditor Agreement and the
Senior Fixed Lender Intercreditor Agreement, as Administrative Agent and
Collateral Agent, respectively, and on behalf of such Lender. The
foregoing provisions are intended as an inducement to the Lenders to extend
credit and such Lenders are intended third party beneficiaries of such
provisions and the provisions of the Senior Lender Intercreditor Agreement, the
Second Priority Intercreditor Agreement and the Senior Fixed Lender
Intercreditor Agreement.
SECTION
9.21. Conversion of Covenants;
Events of Default
. The
parties hereto agree that without notice to or the consent of any Lender,
effective as of the Rollover Conversion on the Rollover Date, the affirmative
covenants set forth in Article V (other than Section 5.13, which shall continue
to apply), and the Events of Default and remedies set forth Article VII shall be
deemed to have been automatically replaced (without any further action necessary
by the parties hereto) by (i) the affirmative covenants described under Article
4 in the Exchange Notes Indenture and (ii) the events of default and remedies
described under Article 6 in the Exchange Notes Indenture, which replacement
provisions, along with the relevant defined terms set forth under Article 1 in
the Exchange Notes Indenture used therein for the purposes thereof, will
thereupon be deemed incorporated by reference herein, with references therein to
the “Issuer” and the “Trustee” being deemed to be references to the “Borrower”
and the “Administrative Agent,” respectively, and with such other modifications
to this Agreement and the other Loan Documents as determined by the
Administrative Agent to be necessary or appropriate to give effect to the
foregoing. In furtherance of the foregoing, the Borrower shall, at the
Administrative Agent’s request, enter into such amendments to the Loan Documents
necessary or appropriate to effect the foregoing.
-116-
SECTION
9.22. No Fiduciary
Duty
. Each
Agent, each Lender and their Affiliates, each Syndication Agent, each
Documentation Agent and each Joint Lead Arranger (collectively, solely for
purposes of this paragraph, the “Lenders”), may have
economic interests that conflict with those of the Borrower. The
Borrower agrees that nothing in the Loan Documents or otherwise will be deemed
to create an advisory, fiduciary or agency relationship or fiduciary or other
implied duty between the Lenders and the Borrower, its stockholders or its
Affiliates. The Borrower acknowledges and agrees that (i) the
transactions contemplated by the Loan Documents are arm’s-length commercial
transactions between the Lenders, on the one hand, and the Borrower, on the
other, (ii) in connection therewith and with the process leading to such
transaction each of the Lenders is acting solely as a principal and not the
agent or fiduciary of the Borrower, its management, stockholders, creditors or
any other person, (iii) no Lender has assumed an advisory or fiduciary
responsibility in favor of the Borrower with respect to the transactions
contemplated hereby or the process leading thereto (irrespective of whether any
Lender or any of its affiliates has advised or is currently advising the
Borrower on other matters) or any other obligation to the Borrower except the
obligations expressly set forth in the Loan Documents and (iv) the Borrower has
consulted its own legal and financial advisors to the extent it deemed
appropriate. The Borrower further acknowledges and agrees that it is
responsible for making its own independent judgment with respect to such
transactions and the process leading thereto. The Borrower agrees
that it will not claim that any Lender
has rendered advisory services of any nature or respect, or owes a fiduciary or
similar duty to the Borrower, in connection with such transaction or the process
leading thereto.
[SIGNATURE
PAGES FOLLOW]
-117-
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.
XXXXX
PLASTICS CORPORATION
By: /s/ Xxxxxxx
Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Authorized
Signatory
-118-
BANK
OF AMERICA, N.A.
as
Administrative Agent, Collateral Agent and as a Lender
By: /s/ Xxxxxxxxxxx
Xxxxx Wall
Name:
Xxxxxxxxxxx Xxxxx Wall
Title:
Principal
By: /s/ Xxxxxxxxxxx
Xxxxx
Wall
Name: Xxxxxxxxxxx Xxxxx
Wall
Title: Principal
-119-
BANC
OF AMERICA SECURITIES LLC
as Joint
Lead Arranger and Joint Bookrun
By: /s/ Xxxxxxxxxxx
Xxxxx Wall
Name:
Xxxxxxxxxxx Xxxxx Wall
Title:
Principal
By: /s/ Xxxxxxxxxxx
Xxxxx
Wall
Name: Xxxxxxxxxxx Xxxxx
Wall
Title: Principal
-120-
XXXXXXX
SACHS CREDIT PARTNERS L.P.
as
Syndication Agent, Joint Lead Arranger, Joint Bookrunner and a
Lender
By: /s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Managing Director
-121-
XXXXXX
BROTHERS INC.
as
Documentation Agent, Joint Lead Arranger and Joint Bookrunner
By: /s/ Xxxxxxx X.
Xxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Managing Director
-122-
XXXXXX
BROTHERS COMMERCIAL BANK
as a
Lender
By: /s/ Xxxxx
XxXxxx
Name:
Xxxxx XxXxxx
Title:
Authorized Signatory
-123-