EXHIBIT 10.1
CREDIT AGREEMENT
dated as of
November 25, 2003
among
CRUNCH HOLDING CORP.,
PINNACLE FOODS HOLDING CORPORATION,
as Borrower
The Lenders Party Hereto,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent
GENERAL ELECTRIC CAPITAL CORPORATION,
as Syndication Agent
and
JPMORGAN CHASE BANK,
CITICORP NORTH AMERICA, INC. and
CANADIAN IMPERIAL BANK OF COMMERCE,
as Co-Documentation Agents
---------------------------
X.X.XXXXXX SECURITIES INC. and DEUTSCHE BANK SECURITIES INC.,
as Joint Lead Arrangers
X.X.XXXXXX SECURITIES INC. and CITIGROUP GLOBAL MARKETS INC.,
as Joint Bookrunners
TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms..................................................................................... 3
SECTION 1.02. Classification of Loans and Borrowings............................................................ 36
SECTION 1.03. Terms Generally................................................................................... 36
SECTION 1.04. Accounting Terms; GAAP............................................................................ 36
SECTION 1.05. Interpretation.................................................................................... 37
ARTICLE II
The Credits
SECTION 2.01. Commitments ...................................................................................... 37
SECTION 2.02. Loans and Borrowings.............................................................................. 38
SECTION 2.03. Requests for Borrowings........................................................................... 38
SECTION 2.04. Swingline Loans................................................................................... 39
SECTION 2.05. Letters of Credit................................................................................. 40
SECTION 2.06. Funding of Borrowings............................................................................. 45
SECTION 2.07. Interest Elections................................................................................ 46
SECTION 2.08. Termination and Reduction of Commitments.......................................................... 47
SECTION 2.09. Repayment of Loans; Evidence of Debt.............................................................. 48
SECTION 2.10. Amortization of Term Loans........................................................................ 49
SECTION 2.11. Prepayment of Loans............................................................................... 50
SECTION 2.12. Fees ............................................................................................. 52
SECTION 2.13. Interest ......................................................................................... 53
SECTION 2.14. Alternate Rate of Interest........................................................................ 54
SECTION 2.15. Increased Costs................................................................................... 55
SECTION 2.16. Break Funding Payments............................................................................ 56
SECTION 2.17. Taxes ............................................................................................ 56
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs....................................... 58
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.................................................... 59
SECTION 2.20. Incremental Extensions of Credit.................................................................. 60
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers.............................................................................. 62
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SECTION 3.02. Authorization; Enforceability..................................................................... 62
SECTION 3.03. Governmental Approvals; No Conflicts.............................................................. 62
SECTION 3.04. Financial Condition; No Material Adverse Change................................................... 62
SECTION 3.05. Properties ....................................................................................... 64
SECTION 3.06. Litigation and Environmental Matters.............................................................. 65
SECTION 3.07. Compliance with Laws and Agreements............................................................... 65
SECTION 3.08. Investment and Holding Company Status............................................................. 65
SECTION 3.09. Taxes ............................................................................................ 65
SECTION 3.10. ERISA ............................................................................................ 65
SECTION 3.11. Disclosure ....................................................................................... 66
SECTION 3.12. Subsidiaries...................................................................................... 66
SECTION 3.13. Insurance ........................................................................................ 66
SECTION 3.14. Labor Matters..................................................................................... 67
SECTION 3.15. Solvency ......................................................................................... 67
SECTION 3.16. Senior Indebtedness............................................................................... 67
ARTICLE IV
Conditions
SECTION 4.01. Effective Date.................................................................................... 67
SECTION 4.02. Aurora Effective Date............................................................................. 71
SECTION 4.03. Each Credit Event................................................................................. 75
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information........................................................ 75
SECTION 5.02. Notices of Material Events........................................................................ 77
SECTION 5.03. Information Regarding Collateral.................................................................. 78
SECTION 5.04. Existence; Conduct of Business.................................................................... 78
SECTION 5.05. Payment of Obligations............................................................................ 79
SECTION 5.06. Maintenance of Properties......................................................................... 79
SECTION 5.07. Insurance ........................................................................................ 79
SECTION 5.08. Casualty and Condemnation......................................................................... 79
SECTION 5.09. Books and Records; Inspection and Audit Rights.................................................... 80
SECTION 5.10. Compliance with Laws.............................................................................. 80
SECTION 5.11. Use of Proceeds and Letters of Credit............................................................. 80
SECTION 5.12. Additional Subsidiaries........................................................................... 81
SECTION 5.13. Further Assurances................................................................................ 81
SECTION 5.14. Interest Rate Protection.......................................................................... 82
SECTION 5.15. End of Fiscal Year................................................................................ 82
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ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness; Certain Equity Securities........................................................... 82
SECTION 6.02. Liens ............................................................................................ 85
SECTION 6.03. Fundamental Changes............................................................................... 87
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions......................................... 87
SECTION 6.05. Asset Sales ...................................................................................... 90
SECTION 6.06. Sale and Leaseback Transactions................................................................... 91
SECTION 6.07. Swap Agreements................................................................................... 91
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness............................................. 92
SECTION 6.09. Transactions with Affiliates...................................................................... 93
SECTION 6.10. Restrictive Agreements............................................................................ 94
SECTION 6.11. Amendment of Material Documents................................................................... 95
SECTION 6.12. Interest Expense Coverage Ratio................................................................... 95
SECTION 6.13. Leverage Ratio.................................................................................... 97
SECTION 6.14. Maximum Capital Expenditures...................................................................... 98
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default................................................................................. 98
SECTION 7.02. Exclusion of Immaterial Subsidiaries.............................................................. 101
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices .......................................................................................... 104
SECTION 9.02. Waivers; Amendments............................................................................... 104
SECTION 9.03. Expenses; Indemnity; Damage Waiver................................................................ 107
SECTION 9.04. Successors and Assigns............................................................................ 108
SECTION 9.05. Survival ......................................................................................... 112
SECTION 9.06. Counterparts; Integration; Effectiveness.......................................................... 112
SECTION 9.07. Severability...................................................................................... 112
SECTION 9.08. Right of Setoff................................................................................... 112
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process........................................ 113
SECTION 9.10. WAIVER OF JURY TRIAL.............................................................................. 113
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SECTION 9.11. Headings ......................................................................................... 114
SECTION 9.12. Confidentiality................................................................................... 114
SECTION 9.13. Interest Rate Limitation.......................................................................... 115
SECTION 9.14. Press Releases and Public Offering Materials...................................................... 115
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SCHEDULES:
Schedule 1.01(a) Adjusted EBITDA
Schedule 1.01(b) Mortgaged Property
Schedule 2.01 Commitments
Schedule 2.05 Existing Letters of Credit
Schedule 3.05 Real Property
Schedule 3.06 Disclosed Matters
Schedule 3.11 Disclosure
Schedule 3.12 Subsidiaries
Schedule 3.13 Insurance
Schedule 4.01(j) Sources and Uses of the Pinnacle Acquisition
Schedule 4.02(n) Sources and Uses of the Aurora Acquisition
Schedule 6.01 Existing Indebtedness
Schedule 6.02 Existing Liens
Schedule 6.04 Existing Investments
Schedule 6.09 Existing Transactions with Affiliates
Schedule 6.10 Existing Restrictions
EXHIBITS:
Exhibit A Form of Assignment and Assumption
Exhibit B-1 Form of Borrowing Request
Exhibit B-2 Form of Letter of Credit Request
Exhibit C Form of Interest Election Request
Exhibit D-1 Form of Opinion of O'Melveny & Xxxxx LLP
Exhibit D-2 Form of Opinion of Stikeman Elliott LLP
Exhibit E Form of Collateral Agreement
Exhibit F Form of Perfection Certificate
Exhibit G-1 Form of Pinnacle Intercompany Loan Note
Exhibit G-2 Form of Global Intercompany Loan Note
Exhibit G-3 Form of Intercompany Loan Note
Exhibit G-4 Form of Intercompany Loan Note
Exhibit H Form of Deposit Account Control Agreement
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CREDIT AGREEMENT dated as of November 25, 2003, among
CRUNCH HOLDING CORP., a Delaware corporation, PINNACLE FOODS
HOLDING CORPORATION, a Delaware corporation, the LENDERS party
hereto, DEUTSCHE BANK TRUST COMPANY AMERICAS, as
Administrative Agent, GENERAL ELECTRIC CAPITAL CORPORATION, as
Syndication Agent, and JPMORGAN CHASE BANK, CITICORP NORTH
AMERICA, INC. and CANADIAN IMPERIAL BANK OF COMMERCE, as
Co-Documentation Agents.
Pursuant to and in connection with the Merger Agreement (with such
term and each other capitalized term used but not defined in this preamble
having the meaning assigned thereto in Article I) and the transactions
contemplated thereby, (a) the Equity Contribution will be made, (b) the Initial
Senior Subordinated Notes will be issued by the Borrower, (c) the Merger will be
consummated in accordance with the terms of the Merger Agreement, (d) the
Existing Pinnacle Credit Agreement will be terminated and all principal,
interest, fees and other amounts outstanding thereunder will be paid in full and
all commitments, obligations and security interests thereunder will be
terminated, (e) the Borrower will make the Pinnacle Intercompany Loan and (f)
the Transaction Costs will be paid.
The Borrower intends, after the consummation of the Pinnacle
Acquisition, to consummate the Aurora Acquisition. Aurora and its subsidiaries
intend to commence a voluntary case (the "Case") under Chapter 11 of the
Bankruptcy Code in the United States Bankruptcy Court for the District of
Delaware (the "Court") and to propose a reorganization (the "Reorganization") of
Aurora and its subsidiaries pursuant to a pre-negotiated plan of reorganization
(the "Plan of Reorganization") under Chapter 11 of the Bankruptcy Code. Pursuant
to the Plan of Reorganization and upon the emergence of Aurora and its debtor
subsidiaries from the Case on the Aurora Effective Date, (a) the Borrower will
merge (the "Aurora Merger") with and into Aurora, with Aurora surviving the
Aurora Merger, in accordance with the Aurora Acquisition Agreement, and Aurora
will become the Borrower under this Agreement, (b) the holders of claims in
respect of the Existing Aurora Credit Agreement will receive an amount of cash
to be specified in the Plan of Reorganization, all such claims will be
discharged and all commitments, obligations (including in respect of penalty
fees) and security interests thereunder will be terminated, (c) the holders of
claims in respect of the Existing Aurora Receivables Facility will receive an
amount of cash to be specified in the Plan of Reorganization, all such claims
will be discharged and all commitments, obligations and security interests
thereunder will be terminated, (d) the holders of claims in respect of the
Existing Aurora Senior Notes will receive an amount of cash to be specified in
the Plan of Reorganization and all such claims will be discharged, (e) the
Aurora Subordinated Noteholders will receive an amount of cash to be specified
in the Plan of Reorganization or, at the election of the Aurora Subordinated
Noteholders, newly issued equity of Crunch LLC representing up to approximately
42% of the outstanding equity of Crunch LLC (subject to adjustment as described
in the Aurora Acquisition Agreement) and all claims of the Aurora Subordinated
Noteholders shall be discharged, (f) all amounts outstanding under
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any debtor-in-possession financing (the "DIP Facility") incurred in connection
with the Case will be repaid in cash and all commitments, obligations and
security interests thereunder will be terminated, (g) certain capital lease
obligations of Aurora may remain outstanding after the Aurora Merger, (h) fees
and expenses (the "Aurora Fees and Expenses") incurred in connection with the
Aurora Acquisition will be paid and (i) other cash costs (the "Other Aurora
Closing Costs" and, together with the Aurora Fees and Expenses, the "Aurora
Transaction Costs") incurred in connection with the Aurora Acquisition (to the
extent described to the Agents prior to the Effective Date) will be paid.
In connection with the foregoing, (a)(i) pursuant to the LLC
Agreement, the Sponsors will contribute a minimum aggregate cash amount of
approximately $84,000,000, and CDM Investor Group LLC will contribute or be
deemed to contribute an aggregate amount of approximately $1,000,000, (ii)
either the Sponsors or the Aurora Subordinated Noteholders will contribute an
aggregate cash amount of not less than the amount required to fund the cash
payments to the Aurora Subordinated Noteholders who elect to receive cash
pursuant to clause (e) of the preceding paragraph and (iii) either the Aurora
Subordinated Noteholders or the Sponsors will contribute an additional aggregate
cash amount of approximately $12,100,000, subject to modification pursuant to
the Aurora Acquisition Agreement, in the case of each of clauses (i), (ii) and
(iii), to Crunch LLC in exchange for equity, the cash proceeds of which will be
contributed consecutively by Crunch LLC to Holdings as common equity and by
Holdings to the Borrower as common equity (the equity contributions described in
clauses (i), (ii) and (iii) subject to adjustment pursuant to Section 4.02(n),
the "Aurora Equity Contribution") and (b) the Borrower or Holdings, as
applicable, will issue the Additional Aurora Securities. After giving effect to
the Aurora Acquisition (assuming that all Aurora Subordinated Noteholders elect
to receive equity of Crunch LLC), it is expected that the Permitted Investors
and the Aurora Subordinated Noteholders will own, directly or indirectly,
approximately 58% and 42%, respectively, of the outstanding equity interests of
Crunch LLC (subject to adjustment as described in the Aurora Acquisition
Agreement).
The Borrower has requested that the Lenders extend credit in the
form of (a)(i) Initial Term Loans on the Effective Date in an aggregate
principal amount not in excess $120,000,000 and (ii) Delayed Draw Term Loans on
the Aurora Effective Date in an aggregate principal amount not in excess of
$425,000,000, (b) Revolving Loans and Swingline Loans at any time and from time
during the Revolving Availability Period, in an aggregate principal amount at
any time outstanding not in excess of $65,000,000 and, if the Aurora Acquisition
is consummated, at any time and from time to time on or after the Aurora
Effective Date during the Revolving Availability Period, in an additional
aggregate principal amount at any time outstanding not in excess of $65,000,000,
and (c) Letters of Credit, in an aggregate stated amount at any time outstanding
not in excess of $20,000,000 and, if the Aurora Acquisition is consummated, on
or after the Aurora Effective Date, in an additional aggregate stated amount at
any time outstanding not in excess of $40,000,000.
The Lenders are willing to extend such credit to the Borrower and
the Issuing Banks are willing to issue Letters of Credit for the account of the
Borrower on the
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terms and subject to the conditions set forth herein. Accordingly, the parties
hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Additional Debt Securities" means (a) the Additional Senior
Subordinated Notes and (b) to the extent the Borrower has not issued
$175,000,000 aggregate principal amount of Additional Senior Subordinated Notes
on or prior to the Aurora Effective Date, cash-pay, pay-in-kind, discount or
other debt securities of Holdings with terms reasonably satisfactory to the
Agents (which shall include, among other things, no guarantees of such debt by
the Borrower or any Subsidiary) issued on or prior to the Aurora Effective Date
in a public offering or in a Rule 144A or other private placement.
"Additional Aurora Securities" means (a) the Additional Debt
Securities and (b) to the extent Holdings or the Borrower has not issued
$175,000,000 aggregate principal amount of Additional Debt Securities on or
prior to the Aurora Effective Date, Junior Capital issued in connection with the
Aurora Acquisition, provided that any increase in the aggregate principal amount
of the Additional Aurora Securities above $200,000,000 shall reduce, on a
dollar-for-dollar basis, the amount of Revolving Loans that may be made on the
Aurora Effective Date.
"Additional Senior Subordinated Notes" means Senior Subordinated
Notes, if any, to be issued by the Borrower on or about the Aurora Effective
Date, which may (but are not required to) take the form of add-on notes to the
Initial Senior Subordinated Notes, and the Indebtedness represented thereby,
provided that such Additional Senior Subordinated Notes shall have terms
(including covenants, events of default, redemption, amortization and sinking
fund provisions, but excluding price, interest rate and redemption premiums)
that are no less favorable to the Lenders or the Borrower than the Initial
Senior Subordinated Notes.
"Adjusted EBITDA" means the net income of the Borrower and its
subsidiaries for the fiscal year ended July 31, 2003, determined on a
consolidated basis in accordance with GAAP and as reported in or derived from
the audited historical statement of operations of the Borrower for such period,
which includes all adjustments required to be made in accordance with Article 11
of Regulation S-X under the Securities Exchange Act of 1934, as amended, plus,
to the extent deducted in determining such net
4
income (as reflected in the applicable line items or notes to the audited
historical financial statements), (a) consolidated income tax expense of the
Borrower and its subsidiaries for such period, (b) consolidated interest
expense, net of any interest income, of the Borrower and its subsidiaries for
such period, (c) total depreciation expense for such period, (d) total
amortization expense, excluding the amortization of debt issue costs to the
extent included in total interest expense for such period and (e) those
adjustments set forth on Schedule 1.01(a).
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means Deutsche Bank Trust Company Americas,
in its capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agents" means the Administrative Agent, the Syndication Agent and
the Co-Documentation Agents.
"Agreement" means this Credit Agreement, as the same may be renewed,
extended, modified, supplemented or amended from time to time.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus -1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Revolving Lender,
the percentage of the total Revolving Commitments represented by such Lender's
Revolving Commitment. If any portion of the Revolving Commitments has terminated
or expired, the Applicable Percentages shall be determined based upon the
Revolving Commitments most recently in effect, giving effect to any assignments.
"Applicable Rate" means, for any day (a) with respect to any Term
Loan, (i) 1.75% per annum, in the case of an ABR Loan, or (ii) 2.75% per annum,
in the case of a Eurodollar Loan, and (b) with respect to any ABR Loan or
Eurodollar Loan that is a Revolving Loan, as the case may be, the applicable
rate per annum set forth below under the caption "ABR Spread" or "Eurodollar
Spread", as the case may be, based upon the Leverage Ratio as of the most recent
determination date, provided that until the delivery
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of financial statements pursuant to Section 5.01(b) for the Borrower's fiscal
quarter ending January 31, 2004, the "Applicable Rate" for purposes of clause
(b) shall be the applicable rate per annum set forth below in Category 1:
ABR EURODOLLAR
LEVERAGE RATIO: SPREAD SPREAD
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Category 1
Ratio is greater than 4.50 to 1.00 1.75% 2.75%
Category 2
Ratio is less than or equal to 4.50 to
1.00 but greater than 4.00 to 1.00 1.50% 2.50%
Category 3
Ratio is less than or equal to 4.00 to 1.00 1.25% 2.25%
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's fiscal year
based upon the Borrower's consolidated financial statements delivered pursuant
to Section 5.01(a) or (b) and (ii) each change in the Applicable Rate resulting
from a change in the Leverage Ratio shall be effective during the period
commencing on and including the date that is three Business Days after the date
of delivery to the Administrative Agent of such consolidated financial
statements indicating such change and ending on the date immediately preceding
the effective date of the next such change, provided that the Leverage Ratio
shall be deemed to be in Category 1 (A) at any time that an Event of Default has
occurred and is continuing or (B) if the Borrower fails to deliver the
consolidated financial statements required to be delivered by it pursuant to
Section 5.01(a) or (b), during the period from the expiration of the time for
delivery thereof until the third Business Day after such consolidated financial
statements are delivered.
"Approved Fund" has the meaning assigned to such term in Section
9.04.
"Asset Swap" means any substantially concurrent purchase and sale,
or exchange, of assets used or usable in the business of Holdings, the Borrower
and the Subsidiaries.
"Assignment and Assumption" means an assignment and assumption
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Aurora" means Aurora Foods Inc., a Delaware corporation.
"Aurora Acquisition" means the Aurora Merger and the other
transactions contemplated by the Aurora Acquisition Agreement (including the
Reorganization) and the other Aurora Acquisition Documents.
"Aurora Acquisition Agreement" means an agreement and plan of
reorganization and merger between Aurora and Crunch LLC relating to the Aurora
Acquisition.
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"Aurora Acquisition Documents" means the Aurora Acquisition
Agreement, the other agreements to be entered into in connection with the Aurora
Acquisition and all schedules, exhibits and annexes to each of the foregoing and
all side letters and agreements affecting the terms of the foregoing or entered
into in connection therewith.
"Aurora Effective Date" means the date on which the conditions
specified in Section 4.02 are satisfied (or waived in accordance with Section
9.02).
"Aurora Equity Contribution" has the meaning assigned to such term
in the preamble to this Agreement.
"Aurora Fees and Expenses" has the meaning assigned to such term in
the preamble to this Agreement.
"Aurora Merger" has the meaning assigned to such term in the
preamble to this Agreement.
"Aurora Subordinated Noteholders" means holders of claims in respect
of the Existing Aurora Subordinated Notes.
"Aurora Transaction Costs" has the meaning assigned to such term in
the preamble to this Agreement.
"Average Revolving Availability" means, as of any date of
determination, the excess of (a) the aggregate amount of the Revolving
Commitments in effect as of such date over (b) the average of the aggregate
amount of the Revolving Exposures of all Lenders outstanding on the last day of
each of the twelve fiscal months of the Borrower immediately preceding such
date, provided that, with respect to any date of determination that occurs prior
to the first anniversary of the Effective Date, the calculation described in
clause (b) shall be performed assuming that no Revolving Exposures were
outstanding on the last day of each of the months ended prior to the Effective
Date.
"Average Senior Debt" means, as of any date of determination, (a)
Average Total Debt as of such date minus (b) the portion of Average Total Debt
as of such date represented by the Subordinated Debt.
"Average Total Debt" means, as of any date of determination, an
amount equal to (a) Total Indebtedness outstanding on such date (excluding
Indebtedness in respect of the Revolving Loans and Swingline Loans) plus (b) the
average of the aggregate amount of the Revolving Loans and Swingline Loans
outstanding on the last day of each of the twelve fiscal months of the Borrower
immediately preceding such date, provided that, with respect to any date of
determination that occurs prior to the first anniversary of the Effective Date,
the calculation described in clause (b) shall be performed assuming that no
Revolving Exposures were outstanding on the last day of each of the months ended
prior to the Effective Date.
"Bankruptcy Code" means Title 11 of the United States Code.
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"Board" means the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrower" means Pinnacle Foods Holding Corporation, a Delaware
corporation, and, after giving effect to the Pinnacle Merger, a wholly owned
direct subsidiary of Holdings. Upon the consummation of the Aurora Merger,
Aurora, as the surviving corporation in the Aurora Merger, will become the
Borrower.
"Borrowing" means (a) Loans of the same Class and Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, or (b) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a Borrowing
in accordance with Section 2.03 and substantially in the form of Exhibit B-1, or
such other form as shall be approved by the Administrative Agent.
"Business Day" means 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 Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"Capital Expenditures" means, for any period, without duplication,
(a) the additions to property, plant and equipment and other capital
expenditures of the Borrower and the Subsidiaries, on a consolidated basis, that
are (or would be) set forth in a consolidated statement of cash flows of the
Borrower for such period prepared in accordance with GAAP (including
expenditures for maintenance and repairs which should be capitalized in
accordance with GAAP) and (b) Capital Lease Obligations incurred by the Borrower
and the Subsidiaries, on a consolidated basis, during such period, provided that
Capital Expenditures shall not include (i) expenditures of proceeds of insurance
settlements, condemnation awards and other settlements in respect of lost,
destroyed, damaged or condemned assets, equipment or other property to the
extent such expenditures are made to replace or repair such lost, destroyed,
damaged or condemned assets, equipment or other property or otherwise to
acquire, maintain, develop, construct, improve or repair assets or properties
useful in the business of the Borrower, (ii) expenditures that constitute the
Aurora Acquisition or a Permitted Acquisition permitted pursuant to Section
6.04(a), (iii) expenditures to the extent they are financed with the proceeds of
an issuance of Junior Capital not later than six months after the receipt of
such proceeds by Holdings or the Borrower, (iv) expenditures to the extent they
are financed with the Retained Mandatory Prepayment Amount not otherwise applied
pursuant to Section 6.04(r) or 6.08(b)(iii), (v) expenditures made pursuant to
an Asset Swap (subject to compliance with the restrictions set forth in Section
6.05), (vi) expenditures to the extent they are financed with the proceeds of an
issuance of Equity Interests not later than six months after the receipt of such
proceeds by Holdings or the Borrower, (vii) expenditures to the extent they are
financed with the proceeds of a Prepayment Event described in clauses (a) or (b)
of the definition of "Prepayment Event", so long as such proceeds are reinvested
in the business of the Borrower and the
8
Subsidiaries pursuant to the requirements of the proviso contained in Section
2.11(c), (viii) expenditures to the extent they are financed with the proceeds
of a Disposition of used, obsolete, worn out or surplus equipment or property in
the ordinary course of business or a Disposition that would constitute a
Prepayment Event but for the threshold set forth in clause (b) of the definition
of "Prepayment Event", (ix) expenditures made in connection with the
construction of any fixed or capital asset if the Borrower or any of the
Subsidiaries intends to consummate a sale and leaseback permitted by Section
6.06(a) with respect to such fixed or capital asset within 120 days after
completion of such construction, provided that, with respect to this clause
(ix), (A) if the Borrower or any of the Subsidiaries fails to consummate such a
sale and leaseback with respect to such fixed or capital asset within such
120-day period, the entire amount of such expenditures shall be deemed to be a
Capital Expenditure as of the expiration of such 120-day period and (B) if the
amount of such expenditures exceeds the proceeds of such sale and leaseback, the
entire amount of such excess shall be deemed to be a Capital Expenditure as of
the date of receipt of such proceeds.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Case" has the meaning assigned to such term in the preamble to this
Agreement.
"Change in Control" means (a) the acquisition of record ownership by
any Person other than Holdings of any Equity Interests in the Borrower, (b)
prior to an IPO, (i) the failure by the Permitted Investors to beneficially own,
directly or indirectly Equity Interests in Holdings representing at least 30% of
the aggregate voting power represented by the issued and outstanding Equity
Interests in Holdings or (ii) the failure by the Sponsors to beneficially own,
directly or indirectly, Equity Interests in Holdings representing at least 25%
of the aggregate voting power represented by the issued and outstanding Equity
Interests in Holdings, (c) after an IPO, (i) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934, as amended, and the
rules of the SEC thereunder as in effect on the date hereof) of Equity Interests
representing more than 35% of the aggregate ordinary voting power represented by
the issued and outstanding Equity Interests in Holdings and (ii) the ownership,
directly or indirectly, beneficially or of record, by the Permitted Investors of
Equity Interests in Holdings representing in the aggregate a lesser percentage
of the aggregate ordinary voting power represented by the issued and outstanding
Equity Interests in Holdings than such Person or group, (d) occupation of a
majority of the seats (other than vacant seats) on the board of directors of
Holdings by Persons who were not nominated or appointed by the board of
directors of Holdings or by the Permitted Investors, directly or indirectly, or
(e) the occurrence of a "Change of Control", as defined in the Subordinated Debt
Documents.
9
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such
Lender or by such Lender's or Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Term Loans or Swingline Loans and, when used in reference to any Commitment,
refers to whether such Commitment is a Revolving Commitment or Term Loan
Commitment.
"CLO" has the meaning assigned to such term in Section 9.04.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Co-Documentation Agents" means JPMorgan Chase Bank, Citicorp North
America, Inc. and Canadian Imperial Bank of Commerce.
"Collateral" means any and all "Collateral", as defined in any
applicable Security Document.
"Collateral Agent" means the Administrative Agent or other Person
acting as collateral agent for the Secured Parties (as defined in the Collateral
Agreement) under the Security Documents.
"Collateral Agreement" means the Guarantee and Collateral Agreement
among Holdings, the Borrower, the Subsidiary Loan Parties and the Collateral
Agent, substantially in the form of Exhibit E.
"Collateral and Guarantee Requirement" means the requirement that:
(a) the Administrative Agent shall have received from each Loan
Party either (i) a counterpart of the Collateral Agreement duly executed
and delivered on behalf of such Loan Party or (ii) in the case of any
Person that becomes a Loan Party after the Effective Date, a supplement to
the Collateral Agreement, substantially in the form specified therein,
duly executed and delivered on behalf of such Loan Party;
(b) all outstanding Equity Interests of the Borrower and each
Subsidiary owned by or on behalf of any Loan Party shall have been pledged
pursuant to the Collateral Agreement (except that the Loan Parties shall
not be required to pledge (i) more than 65% of the outstanding voting
Equity Interests of any Foreign Subsidiary that is owned directly by a
Loan Party, (ii) any Equity
10
Interests of a Foreign Subsidiary that is not owned directly by a Loan
Party or (iii) any Equity Interests in a Joint Venture to the extent such
a pledge is prohibited pursuant to the constitutive documents or
agreements of such Joint Venture), and the Administrative Agent shall have
received certificates or other instruments representing all such Equity
Interests (or, with respect to Equity Interests of Persons that (A) are
not controlled by a Loan Party or (B) are Foreign Subsidiaries organized
in a jurisdiction where issuance of such certificates is not permitted by
applicable law, such certificates only to the extent issued), together
with undated stock powers or other instruments of transfer with respect
thereto endorsed in blank;
(c) all Indebtedness of Holdings, the Borrower and each Subsidiary
that is owing to any Loan Party shall be evidenced by a promissory note,
substantially in the form of Exhibits G-2 or G-4, as applicable, and shall
have been pledged pursuant to the Collateral Agreement, and the
Administrative Agent shall have received all such promissory notes,
together with undated instruments of transfer with respect thereto
endorsed in blank;
(d) all documents and instruments, including Uniform Commercial Code
financing statements, required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded to create the
Liens intended to be created by the Collateral Agreement and perfect such
Liens to the extent required by, and with the priority required by, the
Collateral Agreement, shall have been filed, registered or recorded or
delivered to the Administrative Agent for filing, registration or
recording;
(e) the Administrative Agent shall have received (i) counterparts of
a Mortgage with respect to each Mortgaged Property duly executed and
delivered by the record owner of such Mortgaged Property, (ii) a policy or
policies of title insurance issued by a nationally recognized title
insurance company insuring the Lien of each such Mortgage as a valid
first-priority Lien on the Mortgaged Property described therein, free of
any other Liens except as expressly permitted by Section 6.02, together
with such endorsements, coinsurance and reinsurance as the Administrative
Agent may reasonably request, and (iii) such surveys, abstracts,
appraisals, legal opinions and other documents as the Administrative Agent
may reasonably request with respect to any such Mortgage or Mortgaged
Property; and
(f) each Loan Party shall have obtained all consents and approvals
required to be obtained by it on the date the Collateral and Guarantee
Requirement is required to be satisfied in connection with the execution
and delivery of all Security Documents to which it is a party, the
performance of its obligations thereunder and the granting by it of the
Liens thereunder.
"Commitment" means a Revolving Commitment or Term Loan Commitment,
or any combination thereof (as the context requires).
11
"Consolidated Cash Interest Expense" means, for any period, the
excess of (a) the sum of (i) the interest expense (including imputed interest
expense in respect of Capital Lease Obligations) of Holdings, the Borrower and
the Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP, (ii) any interest accrued during such period in respect of
Indebtedness of Holdings, the Borrower or any Subsidiary that is required to be
capitalized rather than included in consolidated interest expense for such
period in accordance with GAAP, plus (iii) any cash payments made during such
period in respect of obligations referred to in clause (b)(ii) below that were
amortized or accrued in a previous period, minus (b) the sum of (i) to the
extent included in such consolidated interest expense for such period, non-cash
amounts attributable to amortization of financing costs paid in a previous
period, (ii) to the extent included in such consolidated interest expense for
such period, non-cash amounts attributable to amortization of debt discounts or
to accrued interest payable in kind or added to principal for such period, (iii)
interest income for such period and (iv) to the extent included in such
consolidated interest expense for such period, waiver, amendment, consent or
prepayment fees, provided that Consolidated Cash Interest Expense shall be
deemed to be (A) prior to the Aurora Effective Date, (1) for the four fiscal
quarter period ended April 30, 2004, the Consolidated Cash Interest Expense for
the period from the Effective Date to and including April 30, 2004, multiplied
by a fraction equal to (x) 365 divided by (y) the number of days actually
elapsed from the Effective Date to April 30, 2004, and (2) for the four fiscal
quarter period ended July 31, 2004, the Consolidated Cash Interest Expense for
the period from the Effective Date to and including July 31, 2004, multiplied by
a fraction equal to (x) 365 divided by (y) the number of days actually elapsed
from the Effective Date to July 31, 2004, and (B) on or after the Aurora
Effective Date, (1) for the four fiscal quarter period ended July 31, 2004, the
Cash Interest Expense from the Aurora Effective Date to and including July 31,
2004, multiplied by a fraction equal to (x) 365 divided by (y) the number of
days actually elapsed from the Aurora Effective Date to July 31, 2004, (2) for
the four fiscal quarter period ended October 31, 2004, the Consolidated Cash
Interest Expense for the period from the Aurora Effective Date to and including
October 31, 2004, multiplied by a fraction equal to (x) 365 divided by (y) the
number of days actually elapsed from the Aurora Effective Date to October 31,
2004, and (3) for the four fiscal quarter period ended December 31, 2004, the
Consolidated Cash Interest Expense for the period from the Aurora Effective Date
to and including December 31, 2004, multiplied by a fraction equal to (x) 365
divided by (y) the number of days actually elapsed from the Aurora Effective
Date to December 31, 2004.
"Consolidated EBITDA" means, for any period, Consolidated Net Income
for such period plus (a) without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum of (i) consolidated interest
expense, amortization or write-off of debt discount and debt issuance costs and
commissions, discounts and other fees and charges associated with Indebtedness
(including the Loans, Letters of Credit and Swap Agreements constituting
Indebtedness) of the Borrower and the Subsidiaries for such period, (ii)
consolidated income tax expense of the Borrower and the Subsidiaries for such
period, (iii) all amounts attributable to depreciation and amortization for such
period, (iv) amortization or write-down of intangibles (including goodwill) for
such period, (v) any non-cash charges or losses of the Borrower and the
Subsidiaries for such period, (vi) all extraordinary cash expenses or losses,
(vii) any cash
12
received during such period in respect of non-cash income described in clause
(b)(iii) below (solely to the extent that, if such non-cash income had initially
been realized as cash income, it would not have been included in clause (b)(i)
below) subsequent to the fiscal quarter in which the relevant non-cash income
was deducted from Consolidated Net Income, (viii) charges relating to the
Pinnacle Acquisition in an aggregate amount not to exceed $25,000,000, (ix)
charges relating to the Aurora Acquisition in an aggregate amount not to exceed
$50,000,000, (x) non-recurring cash charges relating to any Permitted
Acquisition and (xi) other non-recurring cash charges (provided that (A) such
charges shall be set forth in a certificate signed by a Financial Officer and
provided to the Administrative Agent stating (1) the amount of such charges, (2)
information and calculations supporting in reasonable detail such charges and
(3) that such charges are non-recurring based on the reasonable good faith
belief of the Financial Officer executing such certificate at the time of such
execution and (B) such charges shall not constitute more than 5% of the
Consolidated EBITDA for the applicable period determined after giving effect to
clauses (a) (other than this clause (a)(xi)) and (b) of this definition) minus
(b) without duplication and to the extent included in determining such
Consolidated Net Income, (i) any extraordinary gains of the Borrower and the
Subsidiaries for such period, (ii) write-up of intangibles (including goodwill)
for such period, (iii) any other non-cash income for such period and (iv) any
cash payments made during such period in respect of non-cash charges or losses
described in clause (a)(v) above (solely to the extent that, if such non-cash
charge or loss had initially been incurred as a cash charge or loss, it would
not have been included in clause (a)(vi) above) subsequent to the fiscal quarter
in which the relevant non-cash charges or losses were reflected as a charge in
the statement of Consolidated Net Income, all determined on a consolidated basis
in accordance with GAAP. Notwithstanding anything to the contrary contained
herein, (a) prior to the Aurora Effective Date, Consolidated EBITDA shall be
deemed to be $11,280,000, $18,844,000 and $23,912,000, respectively, for the
fiscal quarters ended January 31, 2003, April 30, 2003 and July 31, 2003 and (b)
in the event the Aurora Acquisition is consummated, Consolidated EBITDA for any
period ending prior to the Aurora Effective Date shall be the sum of (i)
Consolidated EBITDA of the Borrower and the Subsidiaries (without giving effect
to the Aurora Acquisition) for such period and (ii) Consolidated EBITDA of
Aurora and its subsidiaries determined in accordance with the previous sentence
(and for such purpose, Consolidated EBITDA generated by Aurora and its
subsidiaries shall be deemed to be $30,481,000, $32,408,000 and $36,035, 000,
respectively, for the fiscal quarters ended March 30, 2003, June 30, 2003 and
September 30, 2003) and (c) Consolidated EBITDA shall be calculated by combining
the applicable fiscal period of the Borrower and the Subsidiaries with the
fiscal period of Aurora and its subsidiaries ending on the date that is closest
to the date on which such period of the Borrower and the Subsidiaries ends.
"Consolidated Net Income" means, for any period, the net income or
loss of the Borrower and the Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP, provided that there shall be
excluded (a) the income or loss of any Person (other than a Subsidiary) in which
any other Person (other than the Borrower or any Subsidiary or any director
holding qualifying shares in compliance with applicable law) owns an Equity
Interest, except to the extent of the amount of dividends or distributions
actually paid in cash (or to the extent converted into cash) to the Borrower
13
or any of the Subsidiaries during such period, (b) the income or loss of any
Person accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Borrower or any Subsidiary or the date that such Person's
assets are acquired by the Borrower or any Subsidiary and (c) the undistributed
earnings of any Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of any Contractual Obligation (other than under any Loan
Document) or Requirement of Law applicable to such Subsidiary.
"Contractual Obligation" means, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or other
legally binding undertaking to which such Person is a party or by which it or
any of its property is bound.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
The terms "Controlling" and "Controlled" have meanings correlative thereto.
"Court" has the meaning assigned to such term in the preamble to
this Agreement.
"Crunch LLC" means Crunch Equity Holding, LLC, a Delaware limited
liability company.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Delayed Draw Expiration Date" means the earliest to occur of (a)
the date that is 180 days after the Effective Date, (b) the date on which the
Aurora Acquisition Agreement is terminated in accordance with its terms and (c)
the date on which the unused Delayed Draw Term Loan Commitments shall be
terminated pursuant to this Agreement.
"Delayed Draw Term Loan" means a Loan made pursuant to clause
(a)(ii) of Section 2.01.
"Delayed Draw Term Loan Commitment" means, with respect to each
Lender, the commitment, if any, of such Lender to make a Delayed Draw Term Loan
hereunder on the Aurora Effective Date, expressed as an amount representing the
maximum principal amount of the Delayed Draw Term Loan to be made by such Lender
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.08 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial amount of
each Lender's Delayed Draw Term Loan Commitment is set forth on Schedule 2.01,
or in the Assignment and Assumption pursuant to which such Lender shall have
assumed its Delayed Draw Term Loan Commitment, as applicable. The initial
aggregate amount of the Lenders' Delayed Draw Term Loan Commitments is
$425,000,000.
14
"Deposit Account" has the meaning assigned to such term in the
Collateral Agreement.
"DIP Facility" has the meaning assigned to such term in the preamble
to this Agreement.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"Disposition" means, with respect to any property, any sale, lease,
sale and lease back, assignment, conveyance, transfer or other disposition
thereof. The terms "Dispose" and "Disposed of" shall have correlative meanings.
"dollars" or "$" refers to lawful money of the United States of
America.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all laws, rules, statutes, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the Release or threatened Release of any Hazardous Material or health
and safety matters.
"Environmental Liability" means all liabilities, obligations,
damages, claims, actions, suits, judgments, orders, fines, penalties, fees,
expenses and costs, (including administrative oversight costs, natural resource
damages and remediation costs), whether contingent or otherwise, arising out of
or relating to: (a) compliance or non-compliance with any Environmental Law, (b)
the generation, use, handling, transportation, storage, treatment or disposal of
any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
Release or threatened Release of any Hazardous Materials or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is assumed
or imposed with respect to any of the foregoing.
"Equity Contribution" means the equity contribution to be made by
the Permitted Investors and other investors reasonably acceptable to the Agents
to Crunch LLC prior to the Merger in an aggregate amount of not less than
$181,100,000 (less the amount, if any, by which the Transaction Costs are less
than $22,600,000).
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
15
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (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; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan if
the Borrower could reasonably be expected to incur any liability under Title IV
of ERISA with respect to such termination; (f) the incurrence by the Borrower or
any of its ERISA Affiliates of any liability with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan; (g) the receipt by the
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA or (h) the existence of any event or
condition that could reasonably be expected to constitute grounds under ERISA
for the termination of, or the appointment of a trustee to administer, any Plan.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Section
7.01.
"Excess Cash Flow" means, for any fiscal year, the sum (without
duplication) of:
(a) the Consolidated Net Income for such fiscal year, adjusted to
exclude any gains or losses attributable to Prepayment Events (or
dispositions that would constitute Prepayment Events but for clauses (a)
and (b) of the definition of the term "Prepayment Event"); plus
(b) the depreciation, amortization and other non-cash charges or
losses deducted in determining Consolidated Net Income for such fiscal
year; plus
(c) any cash received during such fiscal year in respect of non-cash
gains, income or credits subsequent to the fiscal year in which the
relevant non-cash gains, income or credits reduced Excess Cash Flow for
such fiscal year pursuant
16
to clause (e) below; plus
(d) the amount, if any, by which Net Working Capital decreased
during such fiscal year; minus
(e) the sum of (i) any non-cash gains, income and credits included
in determining such Consolidated Net Income for such fiscal year plus (ii)
the amount, if any, by which Net Working Capital increased during such
fiscal year; minus
(f) the sum of (i) Capital Expenditures for such fiscal year (except
to the extent attributable to the incurrence of Capital Lease Obligations
or otherwise financed by incurring Long-Term Indebtedness other than
Revolving Loans, Swingline Loans and Letters of Credit that are not
subsequently refinanced by the incurrence of Capital Lease Obligations)
plus (ii) any consideration paid during such fiscal year to make Permitted
Acquisitions or the Aurora Acquisition or other capital investments, in
each case to the extent paid using cash generated in the ordinary course
of the Borrower's business; minus
(g) the aggregate principal amount of Long-Term Indebtedness repaid
or prepaid by the Borrower and the Subsidiaries, on a consolidated basis,
during such fiscal year, excluding (i) Indebtedness in respect of
Revolving Loans and Letters of Credit (unless and to the extent that there
is a corresponding reduction in the Revolving Commitments), (ii) Term
Loans prepaid pursuant to Section 2.11(c) or (d), and (iii) repayments or
prepayments of Long-Term Indebtedness financed by incurring other
Long-Term Indebtedness (other than Revolving Loans if and to the extent
such Revolving Loans are repaid prior to the delivery of financial
statements for such fiscal year pursuant to Section 5.01 other than with
the proceeds of Long-Term Indebtedness and the Administrative Agent shall
have received a certificate signed by a Financial Officer of the Borrower
certifying that such repayment has been made); minus
(h) any cash payments made during such fiscal year in respect of
non-cash charges or losses subsequent to the fiscal year in which the
relevant non-cash charges or losses increased Excess Cash Flow for such
fiscal year pursuant to clause (b) above; minus
(i) the aggregate amount of payments permitted to be made in respect
of such fiscal year by the Borrower to Holdings pursuant to Section
6.08(a)(v).
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender, any Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any
17
similar tax imposed by any other jurisdiction described in clause (a) above and
(c) in the case of a Foreign Lender (other than an assignee pursuant to a
request by the Borrower under Section 2.19(b)), any withholding tax that (i) is
in effect and would apply to amounts payable to such Foreign Lender at the time
such Foreign Lender becomes a party to this Agreement (or designates a new
lending office), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from the Borrower with respect to any
withholding tax pursuant to Section 2.17(a), or (ii) is attributable to such
Foreign Lender's failure to comply with Section 2.17(e).
"Existing Aurora Credit Agreement" means the Fifth Amended and
Restated Credit Agreement dated as of November 1, 1999, among Aurora, the
lenders listed therein, JPMorgan Chase Bank, as administrative agent, National
Westminster Bank PLC, as syndication agent, and UBS AG, Stamford branch, as
documentation agent.
"Existing Aurora Letter of Credit" means each letter of credit
previously issued for the account of, or guaranteed by, Aurora or its
subsidiaries pursuant to the Existing Aurora Credit Agreement (i) that is
outstanding on the Aurora Effective Date and (ii) details and copies of which
(including the applicable letter of credit number and such other information as
shall be reasonably requested by the Administrative Agent or the Issuing Banks)
shall have been provided to the Administrative Agent not less than three
Business Days prior to the Aurora Effective Date.
"Existing Aurora Receivables Facility" means the receivables
facility pursuant to the Receivables Purchase Agreement dated as of April 19,
2000, by and between Aurora and JPMorgan Chase Bank, as purchaser.
"Existing Aurora Senior Notes" means 12% Senior Notes due October 1,
2006 issued by Aurora pursuant to a note purchase agreement dated June 27, 2002,
among Aurora and the purchasers party thereto.
"Existing Aurora Subordinated Notes" means the 9-7/8% Senior
Subordinated Noted Notes due 2007, 9-7/8% Series C Senior Subordinated Notes due
2007 and 8-3/4% Senior Subordinated Notes due 2008 issued by Aurora.
"Existing Pinnacle Credit Agreement" means the Credit Agreement
dated as of May 22, 2001, by and among the Borrower, PFC, Deutsche Bank Trust
Company Americas (formerly known as Bankers Trust Company), as administrative
agent, and the other financial institutions named therein as lenders, as amended
prior to the date hereof.
"Existing Pinnacle Letter of Credit" means each letter of credit
previously issued for the account of, or guaranteed by, the Borrower or a
Subsidiary pursuant to the Existing Pinnacle Credit Agreement that (a) is
outstanding on the Effective Date and (b) is listed on Schedule 2.05.
"Federal Funds Effective Rate" means, for any day, the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve
18
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of Holdings.
"Financing Transactions" means (a) the execution, delivery and
performance by each Loan Party of the Loan Documents to which it is to be a
party, the borrowing of Loans, the use of the proceeds thereof as contemplated
by this Agreement and the issuance of Letters of Credit hereunder, (b) the
execution, delivery and performance by each Loan Party of the Senior
Subordinated Debt Documents to which it is to be a party, the issuance of the
Initial Senior Subordinated Notes and Junior Capital, if any, issued on or about
the Effective Date, and the use of the proceeds thereof and (c) the Equity
Contribution.
"Foreign Lender" means any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized under
the laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States
of America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other
19
obligation or (d) as an account party or applicant in respect of any letter of
credit or letter of guaranty issued to support such Indebtedness or obligation,
provided that the term "Guarantee" shall not include endorsements for collection
or deposit in the ordinary course of business.
"Hazardous Materials" means (a) petroleum products and byproducts,
asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, radon
gas, chlorofluorocarbons and all other ozone-depleting substances; or (b) any
chemical, material, substance, waste, pollutant or contaminant that is
prohibited, limited or regulated by or pursuant to any Environmental Law.
"Holdings" means Crunch Holding Corp, a Delaware corporation and a
wholly owned direct subsidiary of Crunch LLC.
"Incremental Facility Amendment" has the meaning assigned to such
term in Section 2.20.
"Incremental Extensions of Credit" has the meaning assigned to such
term in Section 2.20.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid, (d)
all obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (e) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding accounts payable incurred in the ordinary course of business that are
due within a year of the creation of such accounts payable and that do not
accrue interest unless past due), (f) all Indebtedness of others secured by (or
for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (g)
all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person, (i) all obligations, contingent or otherwise, of
such Person as an account party or applicant in respect of letters of credit and
letters of guaranty and (j) all obligations, contingent or otherwise, of such
Person in respect of bankers' acceptances. The Indebtedness of any Person shall
include the Indebtedness of any other entity (including any partnership in which
such Person is a general partner) to the extent such Person is liable therefor
as a result of such Person's ownership interest in or other relationship with
such entity, except to the extent the terms of such Indebtedness provide that
such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Information Memorandum" means the Confidential Information
Memorandum dated November 2003 relating to Holdings, the Borrower, the
Transactions and the Aurora Acquisition.
20
"Initial Plan of Reorganization" means a preliminary plan of
organization filed with the Court on or prior to the date hereof.
"Initial Senior Subordinated Notes" means the Senior Subordinated
Notes due 2013 to be issued by the Borrower prior to or on the Effective Date,
in accordance with the terms of the Senior Subordinated Notes Indenture, in the
aggregate principal amount of $200,000,000, and the Indebtedness represented
thereby.
"Initial Term Loan" means a Loan made pursuant to clause (a)(i) of
Section 2.01.
"Initial Term Loan Commitment" means, with respect to each Lender,
the commitment, if any, of such Lender to make an Initial Term Loan hereunder on
the Effective Date, expressed as an amount representing the maximum principal
amount of the Initial Term Loan to be made by such Lender hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04. The initial amount of each Lender's Initial
Term Loan Commitment is set forth on Schedule 2.01, or in the Assignment and
Assumption pursuant to which such Lender shall have assumed its Initial Term
Loan Commitment, as applicable. The initial aggregate amount of the Lenders'
Initial Term Loan Commitments is $120,000,000.
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing or Term Borrowing in accordance with
Section 2.07 and substantially in the form of Exhibit C, or such other form as
shall be approved by the Administrative Agent.
"Interest Payment Date" means (a) with respect to any ABR Loan
(other than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurodollar Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period,
and (c) with respect to any Swingline Loan, the day that such Loan is required
to be repaid.
"Interest Period" means, with respect to any Eurodollar Borrowing,
except as provided in Section 2.07(a)(ii), the period commencing on the date of
such Borrowing and ending on the numerically corresponding day in the calendar
month that is one, two, three or six months thereafter (or nine or twelve months
thereafter if, at the time of the relevant Borrowing, all Lenders participating
therein agree to make an interest period of such duration available), as the
Borrower may elect, provided that (a) if any Interest Period referred to above
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 and (b) any Interest Period
referred to above that commences on the last Business Day of a calendar month
(or on a
21
day for which there is no numerically corresponding day in the last calendar
month of such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period. For purposes hereof, the date of a
Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"IPO" means a bona fide underwritten initial public offering of
Equity Interests of Holdings after the Effective Date.
"Issuing Bank" means, as the context may require, (a) Deutsche Bank
Trust Company Americas, with respect to Letters of Credit issued by it, (b)
JPMorgan Chase Bank, with respect to Letters of Credit issued by it, and (c) any
other Revolving Lender that becomes an Issuing Bank pursuant to Section 2.05(i),
with respect to Letters of Credit issued by it, and in each case, its successors
in such capacity as provided in Section 2.05(i). An Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by Affiliates
of such Issuing Bank, in which case the term "Issuing Bank" shall include any
such Affiliate with respect to Letters of Credit issued by such Affiliate.
"Joint Venture" means any joint venture arrangement (whether
structured as a corporation, limited liability company, partnership or other
entity or arrangement), which is not a Subsidiary but in which the Borrower or
any Subsidiary owns or controls any Equity Interests.
"JPMP" means X.X. Xxxxxx Partners, LLC.
"Junior Capital" means any Qualified Capital Stock of Holdings
issued to the Permitted Investors and any Junior Indebtedness issued to the
Permitted Investors.
"Junior Indebtedness" means Indebtedness of Holdings or the Borrower
that (a) is expressly subordinated to the prior payment in full in cash of the
Obligations (and the related Guarantees) on terms reasonably satisfactory to the
Administrative Agent (or, in the case of Junior Indebtedness issued in
connection with the Aurora Acquisition, on terms reasonably satisfactory to the
Agents), (b) provides that interest in respect of such Indebtedness shall be
payable solely in kind, (c) has a final maturity date that is not earlier than
the date that is 91 days after the Term Loan Maturity Date and has no scheduled
payments of principal thereon (including pursuant to a sinking fund obligation)
or mandatory redemption obligations prior to such final maturity date and (d) is
not subject to covenants, events of default and remedies that are less favorable
to Holdings or the Borrower, as the case may be, than the terms of the Senior
Subordinated Debt Documents as reasonably determined by the Administrative
Agent.
"JWC" means X.X. Childs Associates, L.P.
"LC Disbursement" means a payment made by an Issuing Bank pursuant
to a Letter of Credit.
22
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrower at such time. The LC Exposure of any Revolving Lender
at any time shall be its Applicable Percentage of the total LC Exposure at such
time.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Assumption or an Incremental Facility Amendment, other than any such Person that
ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the
context otherwise requires, the term "Lenders" includes each Swingline Lender.
"Letter of Credit" means any (a) Standby Letter of Credit or (b)
Trade Letter of Credit issued pursuant to this Agreement (including, in each
case, each Existing Pinnacle Letter of Credit and each Existing Aurora Letter of
Credit).
"Letter of Credit Request" means a request by the Borrower for a
Letter of Credit in accordance with Section 2.05, in the form of Exhibit B-2, or
such other form as shall be approved by the Administrative Agent and the
applicable Issuing Bank.
"Leverage Ratio" means, on any date, the ratio of (a) Average Total
Debt as of such date to (b) Consolidated EBITDA for the period of four
consecutive fiscal quarters of the Borrower ended on such date (or, if such date
is not the last day of a fiscal quarter, ended on the last day of the fiscal
quarter of the Borrower most recently ended prior to such date), provided that
to the extent the Aurora Acquisition or any Permitted Acquisition, Disposition
outside the ordinary course of business or discontinuation of operations has
occurred during the relevant period of four consecutive fiscal quarters, such
ratio shall be determined for such period on a Pro Forma Basis for such
occurrences.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate per annum determined by the Administrative Agent at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, by reference to the British Bankers'
Association Interest Settlement Rates (as set forth by any service selected by
the Administrative Agent that has been nominated by the British Bankers'
Association as an authorized information vendor for the purpose of displaying
such rates) as the rate for dollar deposits with a maturity comparable to such
Interest Period. In the event that such rate is not available at such time for
any reason, then the "LIBO Rate" with respect to such Eurodollar Borrowing for
such Interest Period shall be the rate at which dollar deposits of $5,000,000
and for a maturity comparable to such Interest Period are offered by the
principal London office of the bank serving as the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital
23
lease or title retention agreement (or any financing lease having substantially
the same economic effect as any of the foregoing) relating to such asset and (c)
in the case of securities, any purchase option, call or similar right of a third
party with respect to such securities.
"LLC Agreement" means, collectively, (a) the Operating Agreement
dated as of November 25, 2003, among Crunch LLC, certain Permitted Investors and
the other parties thereto, (b) the Members Agreement dated as of November 25,
2003, among Crunch LLC, certain Permitted Investors and the other parties
thereto and (c) the Bylaws of Crunch LLC as in effect on November 25, 2003, as
each may be amended, modified and supplemented from time to time in accordance
with this Agreement.
"Loan Documents" means this Agreement, the promissory notes, if any,
executed and delivered pursuant to Section 2.09(e), any Incremental Facility
Amendment, the Collateral Agreement and the other Security Documents.
"Loan Parties" means Holdings, the Borrower and the Subsidiary Loan
Parties.
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Agreement or an Incremental Facility Amendment.
"Long-Term Indebtedness" means any Indebtedness that, in accordance
with GAAP, constitutes (or, when incurred, constituted) a long-term liability.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, performance, properties, condition (financial or
otherwise) of Holdings, the Borrower and the Subsidiaries taken as a whole, (b)
the ability of the Loan Parties, taken as a whole, to perform any of their
obligations under any Loan Document or (c) the rights of or benefits available
to the Lenders under any Loan Document.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Swap Agreements, of
any one or more of Holdings, the Borrower and the Subsidiaries in an aggregate
principal amount exceeding (x) prior to the Aurora Effective Date, $5,000,000
and (y) on or after the Aurora Effective Date, $15,000,000. For purposes of
determining Material Indebtedness, the "principal amount" of the obligations of
Holdings, the Borrower or any Subsidiary in respect of any Swap Agreement at any
time shall be the maximum aggregate amount (giving effect to any netting
agreements) that Holdings, the Borrower or such Subsidiary would be required to
pay if such Swap Agreement were terminated at such time.
"Merger" means the merger of MergerCo with and into the Borrower,
with the Borrower as the surviving corporation, pursuant to the Merger
Agreement.
"MergerCo" means Crunch Acquisition Corp., a Delaware corporation
and a wholly owned subsidiary of Holdings.
24
"Merger Agreement" means the Agreement and Plan of Merger, dated as
of August 8, 2003, by and among Holdings, MergerCo, the Borrower and HMTF PF,
LLC, as representative.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means a mortgage, deed of trust, assignment of leases and
rents, leasehold mortgage or other security document granting a Lien on any
Mortgaged Property to secure the Obligations. Each Mortgage shall be
satisfactory in form and substance to the Collateral Agent.
"Mortgaged Property" means, initially, each parcel of real property
and the improvements thereon owned by a Loan Party and identified on Schedule
1.01(b), and includes each other parcel of real property and improvements
thereon with respect to which a Mortgage is granted pursuant to Section 5.12 or
5.13.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event (a) the cash
proceeds received by Holdings, the Borrower and the Subsidiaries in respect of
such event including (i) any cash received in respect of any non-cash proceeds
(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, but excluding any interest payments), but only as and
when received, (ii) in the case of a casualty, insurance proceeds, and (iii) in
the case of a condemnation or similar event, condemnation awards and similar
payments, net of (b) the sum of (i) all attorney's fees, accountants' fees,
investment banking fees and other professional and advisory fees and all other
reasonable fees and out-of-pocket expenses paid by Holdings, the Borrower and
the Subsidiaries to third parties (other than Affiliates) in connection with
such event and reasonable fees paid by Holdings, the Borrower and the
Subsidiaries to Affiliates in connection with such event, (ii) in the case of a
sale, transfer or other disposition of an asset (including pursuant to a sale
and leaseback transaction or a casualty or a condemnation or similar
proceeding), (A) the amount of all payments required to be made by Holdings, the
Borrower and the Subsidiaries as a result of such event to repay Indebtedness
(other than Loans) secured by such asset or otherwise subject to mandatory
prepayment as a result of such event (including in order to obtain any consent
required therefor), (B) the amount of all sales commissions paid by Holdings,
the Borrower and the Subsidiaries to third parties (other than Affiliates) and
all reasonable sales commissions paid by Holdings, the Borrower and the
Subsidiaries to Affiliates and (C) the amount of title and recording expenses
incurred as a result of such sale, transfer or disposition by Holdings, the
Borrower or the Subsidiaries, (iii) the amount of all taxes paid (or reasonably
estimated to be payable) by Holdings, the Borrower and the Subsidiaries, and the
amount of any reserves established by the Borrower and the Subsidiaries to fund
contingent liabilities reasonably estimated to be payable, in each case during
the year that such event occurred or the next succeeding year and that are
directly attributable to such event (as determined reasonably and in good faith
by the
25
chief financial officer of the Borrower), provided that upon the date upon which
such reserve is no longer required to be maintained, the remaining amount of
such reserve shall then be deemed to be Net Proceeds and (iv) the amount of all
payments required to be paid by Holdings, the Borrower or the Subsidiaries to
Persons owning minority interests in Subsidiaries or other Persons.
"Net Working Capital" means, at any date, (a) the consolidated
current assets of the Borrower and the Subsidiaries, as of such date (excluding
cash and Permitted Investments) minus (b) the consolidated current liabilities
of the Borrower and the Subsidiaries as of such date (excluding current
liabilities in respect of Indebtedness) minus (c) without duplication, accrued
interest expense, accrued income taxes payable and deferred taxes. Net Working
Capital at any date may be a positive or negative number. Net Working Capital
increases when it becomes more positive or less negative and decreases when it
becomes less positive or more negative.
"Non-Consenting Lender" has the meaning assigned to such term in
Section 9.02.
"Obligations" has the meaning assigned to such term in the
Collateral Agreement.
"Omaha Property" means the real property located at 0000 Xxxxxxx
Xxxxxx, Xxxxx, Xxxxxxxx, together with improvements thereon.
"Open Pit Assets" means any assets relating to the Borrower's
business of developing, manufacturing, selling, licensing, marketing and
distributing barbecue sauce and grilling sauce products under the Open Pit
trademark.
"Order" shall mean the order or orders of the Court confirming the
Plan of Reorganization and approving the Aurora Acquisition and all other
transactions contemplated thereby.
"Other Aurora Closing Costs" has the meaning assigned to such term
in the preamble to this Agreement.
"Other Taxes" means any and all present or future recording, stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"Participant" has the meaning set forth in Section 9.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Perfection Certificate" means a certificate in the form of Exhibit
F or such other form as shall be approved by the Collateral Agent.
26
"Permitted Acquisition" means any acquisition by the Borrower or a
Subsidiary (it being understood that an acquisition by the Borrower or a
Subsidiary Loan Party of an entity that, following such acquisition, will not be
a Subsidiary Loan Party shall be deemed to be an investment in a Subsidiary that
is not a Loan Party for purposes of, and to be subject to the limitations in,
Section 6.04(d)(ii) or Section 6.04(u)) of all the outstanding Equity Interests
in, all or substantially all the assets of, or all or substantially all the
assets constituting a division or line of business of, a Person if (a) such
acquisition was not preceded by, or consummated pursuant to, a hostile offer,
(b) no Default has occurred and is continuing or would result therefrom, (c) all
transactions related thereto are consummated in all material respects in
accordance with applicable laws, (d) all actions required to be taken with
respect to such acquired or newly formed Subsidiary or assets under Sections
5.12 and 5.13 shall have been taken, (e) the Borrower and the Subsidiaries,
taken as a whole, are in compliance, on a Pro Forma Basis, with the covenants
contained in Sections 6.12, 6.13 and 6.14 recomputed as of the last day of the
most recently ended fiscal quarter of the Borrower for which financial
statements are available, (f) prior to the end of the Standstill Period, (i) the
aggregate amount of Indebtedness incurred or assumed in connection with all such
acquisitions does not exceed $10,000,000 or, if the Aurora Acquisition has
occurred, $25,000,000 and (ii) the Leverage Ratio, on a Pro Forma Basis, as of
the end of the most recently ended period of four fiscal quarters for which
financial statements are available is less than or equal to the lesser of (A)
5.00 to 1.00 (or, on or after the Aurora Effective Date, 4.75 to 1.00) and (B)
the Leverage Ratio immediately prior to giving effect to such acquisition, (g)
after the end of the Standstill Period, either (i) the Leverage Ratio, on a Pro
Forma Basis, as of the end of the most recently ended period of four fiscal
quarters for which financial statements are available is less than 4.50 to 1.00
or (ii) (A) the aggregate amount of Indebtedness incurred or assumed in
connection with all such acquisitions does not exceed $10,000,000 or, if the
Aurora Acquisition has occurred, $25,000,000 and (B) the Leverage Ratio, on a
Pro Forma Basis, as of the end of the most recently ended period of four fiscal
quarters for which financial statements are available is less than or equal to
the lesser of (1) 5.00 to 1.00 (or, on or after the Aurora Effective Date, 4.75
to 1.00) and (2) the Leverage Ratio immediately prior to giving effect to such
acquisition, (h) on a Pro Forma Basis after giving effect to such acquisition,
the Average Revolving Availability shall not be less than (i) prior to the
Aurora Effective Date, $30,000,000 and (ii) on or after the Aurora Effective
Date, $45,000,000, (i) the business of such Person or such assets, as the case
may be, constitute a business permitted by Section 6.03(b), and (j) the Borrower
has delivered to the Administrative Agent an officers' certificate to the effect
set forth in clauses (a), (b), (c), (d), (e), (f), (g), (h) and (i) above,
together with all relevant financial information for the Person or assets to be
acquired.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes and other charges of a
Governmental Authority that are not yet due or are being contested in
compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary
course of business
27
and securing obligations that are not overdue by more than 90 days or are
being contested in compliance with Section 5.05;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary
course of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII;
(f) easements, zoning restrictions, rights-of-way, minor defects or
irregularities of title and other similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not
secure any monetary obligations and do not materially detract from the
value of the affected property or interfere with the ordinary conduct of
business of the Borrower or any Subsidiary; and
(g) landlords' and lessors' and other like Liens in respect of rent
not in default,
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in
each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from
the date of acquisition thereof and having, at such date of acquisition, a
rating of at least A1 by S&P or P-1 by Xxxxx'x;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 360 days from the date of acquisition
thereof issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States of America or any State
thereof that has a combined capital and surplus and undivided profits of
not less than $250,000,000;
(d) fully collateralized repurchase agreements with a term of not
more than 180 days for securities described in clause (a) above and
entered into with a
28
financial institution satisfying the criteria described in clause (c)
above;
(e) securities maturing within 360 days from the date of acquisition
thereof issued or fully guaranteed by any State, commonwealth or territory
of the United States of America, or by a political subdivision or taxing
authority thereof or by any foreign government, and rated at least A by
S&P or A by Xxxxx'x;
(f) securities maturing within 360 days from the date of acquisition
thereof backed by standby letters of credit issued by any Lender or any
commercial bank satisfying the provisions of clause (c) above;
(g) shares of mutual funds whose investment guidelines restrict 95%
of such funds' investments to those satisfying the provisions of clauses
(a) through (f) above; and
(h) money market funds that (i) comply with the criteria set forth
in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended,
(ii) are rated AAA by S&P and Aaa by Xxxxx'x and (iii) have portfolio
assets of at least $5,000,000,000.
"Permitted Investors" means JPMP, JWC, CDM Investor Group LLC and
any Affiliate of the foregoing.
"Permitted Subordinated Indebtedness" means subordinated
Indebtedness of the Borrower that (a) bears interest at a fixed rate, which rate
shall be, in the good faith judgment of the Borrower's board of directors,
consistent with the market at the time for issuances of similar Indebtedness,
(b) is expressly subordinated to the prior payment in full in cash of the
Obligations (and the related Guarantees) on terms no less favorable to the
Lenders than the Initial Senior Subordinated Notes, (c) has a final maturity
date at least 180 days after the Term Loan Maturity Date at the time such
Indebtedness is incurred and has no scheduled payments of principal thereon
(including pursuant to a sinking fund obligation) prior to such Term Loan
Maturity Date, (d) does not require prepayments or mandatory redemptions in a
manner more extensive than the Initial Senior Subordinated Notes and (e) is not
subject to covenants, events of default or remedies that are less favorable to
the Borrower than the Initial Senior Subordinated Notes, in each case with
appropriate regard for then-current market conventions.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"PFC" means Pinnacle Foods Corporation, a Delaware corporation and a
wholly owned direct subsidiary of the Borrower.
"Pinnacle Acquisition" means the Merger and the other transactions
contemplated by the Merger Agreement and the other Pinnacle Acquisition
Documents.
29
"Pinnacle Acquisition Documents" means the Merger Agreement, the
other agreements to be entered into in connection with the Merger (including the
LLC Agreement) and all schedules, exhibits and annexes to each of the foregoing
and all side letters and agreements affecting the terms of the foregoing or
entered into in connection therewith.
"Pinnacle Intercompany Loan" means the intercompany loan or loans
from the Borrower to PFC on the Effective Date out of the proceeds of the Loans
made to the Borrower on the Effective Date, which loan shall be evidenced by a
note in the form of Exhibit G-1.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower
has any liability 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.
"Plan of Reorganization" has the meaning assigned to such term in
the preamble to this Agreement.
"Prepayment Event" means (without duplication):
(a) any sale, transfer or other disposition (including pursuant to a
sale and leaseback transaction) of any property or asset of the Borrower
or any Subsidiary, other than dispositions described in clauses (a), (b),
(c) and (f) of Section 6.05; or
(b) any casualty or other insured damage to, or any taking under
power of eminent domain or by condemnation or similar proceeding of, any
property or asset of the Borrower or any Subsidiary, with a fair value
immediately prior to such event equal to or greater than $1,000,000; or
(c) the issuance by Holdings, the Borrower or any Subsidiary of any
Equity Interests (other than Qualified Capital Stock issued by Holdings to
the Permitted Investors) in a bona fide underwritten public offering at
any time when (i) the Leverage Ratio, on a Pro Forma Basis, as of the end
of the most recently ended period of four consecutive fiscal quarters for
which financial statements are available is greater than or equal to 3.50
to 1.00 or (ii) a Default has occurred and is continuing; or
(d) the incurrence by Holdings, the Borrower or any Subsidiary of
any Indebtedness, other than Indebtedness permitted under Section 6.01 or
permitted by the Required Lenders pursuant to Section 9.02.
"Prime Rate" means the rate of interest per annum determined from
time to time by the Administrative Agent as its prime rate in effect for dollars
at its principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
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"Pro Forma Basis" means for any event described in clause (a) or (b)
below that occurs subsequent to the commencement of a period for which the
financial effect of such event is being calculated, or whose financial effect is
being determined prospectively, that such calculation shall give pro forma
effect to such event as if it occurred on the first day of the four consecutive
fiscal quarter period (the "Reference Period") for which such calculation is
being made and that:
(a) in making any determination of Consolidated EBITDA, pro forma
effect shall be given to the Aurora Acquisition or any Permitted
Acquisition, Disposition outside the ordinary course of business or
discontinuation of operations, in each case that occurred during the
Reference Period (or, in the case of any determination made pursuant to
the definition of the term "Permitted Acquisition", clause (c) of the
definition of the term "Prepayment Event", Section 2.20, Section 6.01(ix),
Section 6.05(j) or Section 6.08(b)(iii), occurring during the Reference
Period or thereafter and through and including the date upon which such
event is expected to be consummated), and such pro forma effect shall
include cost savings (net of continuing associated expenses but excluding
non-recurring associated expenses) to the extent such cost savings either
(i) would be permitted to be reflected in pro forma financial information
complying with the requirements of Article 11 of Regulation S-X under the
Securities Exchange Act of 1934, as amended, or (ii) have been realized or
for which substantially all the steps necessary for realization have been
taken or at the time of determination are reasonably expected to be taken
within six months following the Aurora Acquisition or any such Permitted
Acquisition, Disposition or discontinuation of operations, provided that
(A) such cost savings shall be calculated on an annualized basis and will
be set forth in a certificate signed by a Financial Officer and provided
to the Administrative Agent stating (1) the amount of cost savings and the
costs to achieve such cost savings, (2) information and calculations
supporting in reasonable detail such estimated cost savings and the costs
to achieve such cost savings, (3) that such cost savings are based on the
reasonable good faith beliefs of the Financial Officer executing such
certificate at the time of such execution and (4) that such cost savings
and the plan or plans related thereto have been reviewed and approved by
the board of directors of the Borrower and (B) such cost savings plus the
non-recurring cash charges described in clause (a)(xi) of the definition
of the term "Consolidated EBITDA" shall not constitute more than 5% of the
Consolidated EBITDA for the applicable period determined after giving
effect to the Aurora Acquisition or such Permitted Acquisition,
Disposition or discontinuation of operations including cost savings
described in clause (i) but not clause (ii) of this clause (a); and
(b) in making any determination on a Pro Forma Basis, (i) all
Indebtedness (including Indebtedness incurred or assumed and for which the
financial effect is being calculated, whether incurred under this
Agreement or otherwise) incurred or repaid during the Reference Period
(or, in the case of any determination made pursuant to the definition of
the term "Permitted Acquisition", clause (c) of the definition of the term
"Prepayment Event", Section 2.20, Section 6.01(ix), Section 6.05(j) or
Section 6.08(b)(iii), occurring during the Reference Period or thereafter
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and through and including the date upon which such event is expected to be
consummated) shall be deemed to have been incurred or repaid at the
beginning of such period and (ii) Consolidated Cash Interest Expense
attributable to interest on any Indebtedness, for which pro forma effect
is being given as provided in preceding clause (i), bearing floating
interest rates shall be computed as if the rates that would have been in
effect during the period for which pro forma effect is being given had
been actually in effect during such periods.
"Proposed Change" has the meaning set forth in Section 9.02.
"Qualified Capital Stock" means any Equity Interests of any Person
that does not by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable) or upon the
happening of any event (a) provide for scheduled payments of dividends in cash,
(b) become mandatorily redeemable (other than pursuant to customary provisions
relating to redemption upon a change of control or sale of assets) pursuant to a
sinking fund obligation or otherwise prior to the date that is 91 days after the
Term Loan Maturity Date, (c) become convertible or exchangeable at the option of
the holder thereof for Indebtedness or Equity Interests that are not Qualified
Capital Stock, or (d) contain any maintenance covenants, other covenants adverse
to the Lenders or remedies (other than voting rights and increases in
dividends).
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Release" means any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into or through the environment or within or upon any building,
structure, facility or fixture.
"Reorganization" has the meaning assigned to such term in the
preamble to this Agreement.
"Required Lenders" means, at any time, Lenders having Revolving
Exposures, Term Loans, Loans in respect of Incremental Extensions of Credit, if
any, and unused Commitments representing more than 50% of the sum of the total
Revolving Exposures, outstanding Term Loans, outstanding Loans in respect of
Incremental Extensions of Credit, if any, and unused Commitments at such time.
"Requirement of Law" means, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or legally binding determination
of an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding such Person or any of its property or to which such
Person or any of its property is subject.
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"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in Holdings, the Borrower or any Subsidiary, or any payment (whether
in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancelation or termination of any Equity Interests in Holdings, the Borrower or
any Subsidiary.
"Retained Mandatory Prepayment Amount" has the meaning set forth in
Section 2.11.
"Revolving Availability Period" means the period from and including
the Effective Date to but excluding the earlier of the Revolving Maturity Date
and the date of termination of all the Revolving Commitments.
"Revolving Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed as
an amount representing the maximum aggregate amount of such Lender's Revolving
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender's Revolving Commitment is set forth on Schedule 2.01, or in the
Assignment and Assumption pursuant to which such Lender shall have assumed its
Revolving Commitment, as applicable. The initial aggregate amount of the
Lenders' Revolving Commitments is $130,000,000, $65,000,000 aggregate amount of
which shall expire on the Delayed Draw Expiration Date if the Aurora Effective
Date has not occurred.
"Revolving Exposure" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Revolving Loans and
its LC Exposure and Swingline Exposure at such time.
"Revolving Lender" means a Lender with a Revolving Commitment or, if
the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"Revolving Loan" means a Loan made pursuant to clause (b) of Section
2.01.
"Revolving Maturity Date" means November 25, 2009.
"S&P" means Standard & Poor's Ratings Group, Inc.
"SEC" means the Securities and Exchange Commission or any
Governmental Authority succeeding to any of its principal functions.
"Security Documents" means the Collateral Agreement, the Mortgages
and each other security agreement or other instrument or document executed and
delivered pursuant to Section 5.12 or 5.13 to secure any of the Obligations.
33
"Senior Leverage Ratio" means, on any date, the ratio of (a) Average
Senior Debt as of such date to (b) Consolidated EBITDA for the period of four
consecutive fiscal quarters of the Borrower ended on such date (or, if such date
is not the last day of a fiscal quarter, ended on the last day of the fiscal
quarter of the Borrower most recently ended prior to such date for which
financial statements are available), provided that to the extent the Aurora
Acquisition or any Permitted Acquisition, Disposition outside the ordinary
course of business or discontinuation of operations has occurred during the
relevant period of four consecutive fiscal quarters, such ratio shall be
determined for such period on a Pro Forma Basis for such occurrences.
"Senior Subordinated Debt Documents" means the Senior Subordinated
Notes Indenture and all other instruments, agreements and other documents
evidencing or governing the Senior Subordinated Notes or providing for any
Guarantee or other right in respect thereof.
"Senior Subordinated Notes" means (a) the Initial Senior
Subordinated Notes and (b) the Additional Senior Subordinated Notes, if any.
"Senior Subordinated Notes Indenture" means the Indenture dated as
of November 25, 2003, among the Borrower, the Subsidiaries listed therein and
Wilmington Trust Company, as trustee, in respect of (a) the Initial Senior
Subordinated Notes and (b) to the extent they are issued pursuant to the
aforementioned Indenture, the Additional Senior Subordinated Notes.
"Sponsors" means JPMP, JWC and their respective Controlled
Affiliates.
"Standby Letter of Credit" means any irrevocable standby letter of
credit in support of certain obligations of the Borrower available against sight
drafts and payable at sight, issued by an Issuing Bank pursuant to Section 2.05.
"Standstill Period" means the period from and including the
Effective Date to (a) if the Aurora Acquisition has been consummated, the date
that is six months after the Aurora Effective Date and (b) if the Aurora
Acquisition has not been consummated, the Delayed Draw Expiration Date.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the bank serving as the Administrative Agent
is subject with respect to the Adjusted LIBO Rate, for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
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Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Subordinated Debt" means (a) the Initial Senior Subordinated Notes,
(b) Permitted Subordinated Indebtedness, (c) Junior Indebtedness and (d) the
Additional Debt Securities.
"Subordinated Debt Documents" means all instruments, agreements and
other documents (including the Senior Subordinated Debt Documents) evidencing or
governing the Subordinated Debt or providing for any Guarantee or other right in
respect thereof.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or, in the case
of a partnership, more than 50% of the general partnership interests are, as of
such date, owned, controlled or held.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Loan Party" means any wholly owned Subsidiary that is
not a Foreign Subsidiary.
"Supermajority Lenders" means, at any time, Lenders having Revolving
Exposures, Term Loans, Loans in respect of Incremental Extensions of Credit, if
any, and unused Commitments representing more than 66.67% of the sum of the
total Revolving Exposures, outstanding Term Loans, outstanding Loans in respect
of Incremental Extensions of Credit, if any, and unused Commitments at such
time.
"Swap Agreement" means any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value or
any similar transaction or any combination of these transactions, provided that
(a) 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 the Subsidiaries and (b) no commercial supply
agreement relating to the purchase of commodities shall be a Swap Agreement.
"Swingline Exposure" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the total
Swingline Exposure at such time.
35
"Swingline Lender" means, as the context may require, Deutsche Bank
Trust Company Americas and JPMorgan Chase Bank, each in its capacity as lender
of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Syndication Agent" means General Electric Capital Corporation.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Loan" means an Initial Term Loan or a Delayed Draw Term Loan.
Notwithstanding anything to the contrary herein, upon the initial borrowing of
the Delayed Draw Term Loans pursuant to Section 2.01(a)(ii), the Initial Term
Loans and the Delayed Draw Term Loans shall constitute the same Term Loans.
"Term Loan Commitment" means an Initial Term Loan Commitment or a
Delayed Draw Term Loan Commitment.
"Term Loan Lender" means a Lender with a Term Loan Commitment or an
outstanding Term Loan.
"Term Loan Maturity Date" means November 25, 2010.
"Total Indebtedness" means, as of any date, the sum of (a) the
aggregate principal amount of Indebtedness of Holdings, the Borrower and the
Subsidiaries outstanding as of such date, in the amount that would be reflected
on a balance sheet prepared as of such date on a consolidated basis in
accordance with GAAP, plus (b) the aggregate principal amount of Indebtedness of
Holdings, the Borrower and the Subsidiaries outstanding as of such date that is
not required to be reflected on a balance sheet in accordance with GAAP,
determined on a consolidated basis, provided that, for purposes of clause (b)
above, the term "Indebtedness" shall not include contingent obligations of
Holdings, the Borrower or any Subsidiary as an account party in respect of any
letter of credit or letter of guaranty unless such letter of credit or letter of
guaranty supports an obligation that constitutes Indebtedness.
"Trade Letter of Credit" means any irrevocable trade letter of
credit available against sight drafts and payable at sight, issued by an Issuing
Bank pursuant to Section 2.05.
"Transaction Costs" means fees and expenses payable or otherwise
borne by Holdings, the Borrower and the Subsidiaries in connection with the
Transactions occurring on or about the Effective Date.
"Transactions" means the Pinnacle Acquisition and the Financing
Transactions.
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"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"Withdrawal Liability" means 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. Classification of Loans and Borrowings. For purposes
of this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement, (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights and (f) without
limiting its generality, the phrase "general corporate purposes" shall be
construed to include Permitted Acquisitions.
SECTION 1.04. Accounting Terms; GAAP. 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 date hereof 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
37
immediately before such change shall have become effective until such notice
shall have been withdrawn or such provision amended in accordance herewith.
SECTION 1.05. Interpretation. On or after to the Aurora Effective
Date (including for purposes of determining satisfaction of the conditions set
forth in Section 4.02), as used in this Agreement, all references to (a)
"Holdings and its subsidiaries" or to "Holdings, the Borrower or the
Subsidiaries" shall be to Holdings and its subsidiaries after giving effect to
the Aurora Acquisition and (b) Loan Parties shall be to Holdings, the Borrower,
the Subsidiary Guarantors and Aurora and its subsidiaries that shall become Loan
Parties after giving effect to the Aurora Acquisition.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set
forth herein, each Lender agrees (a)(i) to make an Initial Term Loan to the
Borrower on the Effective Date in a principal amount not exceeding its Initial
Term Loan Commitment and (ii) to make a Delayed Draw Term Loan to the Borrower
on the Aurora Effective Date in a principal amount not exceeding its Delayed
Draw Term Loan Commitment, (b) to make Revolving Loans to the Borrower from time
to time during the Revolving Availability Period in an aggregate principal
amount that will not result in such Lender's Revolving Exposure exceeding such
Lender's Revolving Commitment, provided that (i) the aggregate amount of
Revolving Loans made on the Effective Date may not exceed $25,000,000, (ii) the
aggregate principal amount of Revolving Loans outstanding prior to the Aurora
Effective Date may not exceed the amount that would result in the aggregate
amount of the Lenders' Revolving Exposures being equal to $65,000,000 and (iii)
the aggregate amount of Revolving Loans made on the Aurora Effective Date in
connection with the Aurora Acquisition may not exceed the sum of (A) subject to
Section 2.20, $7,500,000 (net of cash on hand of Aurora and its subsidiaries)
(provided that the aggregate principal amount of such Revolving Loans may be
increased, up to $32,500,000 (net of cash on hand of Aurora and its
subsidiaries), by the amount by which the aggregate principal amount of
Incremental Extensions of Credit incurred on the Aurora Effective Date as
contemplated by Section 2.20 is less than $25,000,000) plus (B) an amount (not
to exceed $15,000,000) equal to the amount of working capital purchase price
adjustments as set forth in the Aurora Acquisition Agreement (it being agreed
that any such Revolving Loans are in addition to the Revolving Loans that the
Borrower is otherwise permitted to borrow on or prior to the Aurora Effective
Date in accordance with the preceding clause (ii)); provided further that any
increase in the aggregate principal amount of the Additional Aurora Securities
above $200,000,000 shall reduce, on a dollar-for-dollar basis, the amount of
Revolving Loans that may be made on the Aurora Effective Date. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Revolving Loans. Amounts repaid in
respect of Term Loans may not be reborrowed.
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SECTION 2.02. Loans and Borrowings. (a) Each Loan (other than a
Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the
same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. 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.
(a) Subject to Section 2.14, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith. Each Swingline Loan shall be an ABR
Loan. Each Lender at its option may make any Eurodollar Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan,
provided that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement.
(b) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $500,000 and not less than $2,000,000. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that
is an integral multiple of $500,000 and not less than $1,000,000. Each Swingline
Loan shall be in an amount that is an integral multiple of $100,000 and not less
than $250,000. Borrowings of more than one Type and Class may be outstanding at
the same time, provided that there shall not at any time be more than a total of
fifteen Eurodollar Borrowings outstanding. Notwithstanding anything to the
contrary in this Section 2.02(c), an ABR Revolving Borrowing or Swingline Loan
may be in an aggregate amount that is (i) equal to the entire unused balance of
the total Revolving Commitments or (ii) required to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.05(e).
(c) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Revolving Maturity Date or Term Loan Maturity Date, as applicable.
SECTION 2.03. Requests for Borrowings. To request a Revolving
Borrowing or Term Borrowing, the Borrower shall notify the Administrative Agent
of such request by telephone (a) in the case of a Eurodollar Borrowing, not
later than 12:00 noon, New York City time, three Business Days before the date
of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than
12:00 noon, New York City time, one Business Day before the date of the proposed
Borrowing, provided that any such notice of an ABR Revolving Borrowing to
finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(e) may be given not later than 10:00 a.m., New York City time, on the date
of the proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request signed by the Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
39
(i) whether the requested Borrowing is to be a Revolving Borrowing
or Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed
to have selected an Interest Period of one month's duration. Promptly following
receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, each Swingline Lender agrees to make Swingline
Loans to the Borrower from time to time during the Revolving Availability
Period, in an aggregate principal amount at any time outstanding that will not
result in (i) the aggregate principal amount of outstanding Swingline Loans
exceeding (x) prior to the Aurora Effective Date, $20,000,000 and (y) on or
after the Aurora Effective Date, $60,000,000, (ii) prior to the Aurora Effective
Date, the aggregate amount of the Lenders' Revolving Exposures exceeding
$65,000,000 or (iii) the aggregate amount of the Lenders' Revolving Exposures
exceeding the aggregate amount of the Lenders' Revolving Commitments, provided
that the Swingline Lenders shall not be required to make a Swingline Loan to
refinance an outstanding Swingline Loan. Within the foregoing limits and subject
to the terms and conditions set forth herein, the Borrower may borrow, prepay
and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 3:00 p.m., New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day), amount of the requested Swingline Loan and the
wire transfer instructions for the account of the Borrower to which the proceeds
of the Swingline Loan are to be disbursed. The Administrative Agent will
promptly advise the Swingline Lenders of any such notice received from the
Borrower. The Swingline Lenders shall make each Swingline Loan available to the
Borrower by means of a credit to the account of the
40
Borrower specified in the notice (or, in the case of a Swingline Loan made to
finance the reimbursement of an LC Disbursement as provided in Section 2.05(e),
by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time,
on the requested date of such Swingline Loan.
(c) The applicable Swingline Lender may by written notice given to
the Administrative Agent not later than 12:00 noon, New York City time, on any
Business Day require the Revolving Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding. Such notice
shall specify the aggregate amount of Swingline Loans in which Revolving Lenders
will participate. Promptly upon receipt of such notice, the Administrative Agent
will give notice thereof to each Revolving Lender, specifying in such notice
such Lender's Applicable Percentage of such Swingline Loan or Loans. Each
Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of
notice as provided above, to pay to the Administrative Agent, for the account of
the applicable Swingline Lender, such Lender's Applicable Percentage of such
Swingline Loan or Loans. Each Revolving Lender acknowledges and agrees that its
obligation to acquire participations in Swingline Loans pursuant to this
paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever. Each
Revolving Lender shall comply with its obligation under this paragraph by wire
transfer of immediately available funds, in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall
apply, mutatis mutandis, to the payment obligations of the Revolving Lenders),
and the Administrative Agent shall promptly pay to the applicable Swingline
Lender the amounts so received by it from the Revolving Lenders. The
Administrative Agent shall notify the Borrower of any participations in any
Swingline Loan acquired pursuant to this paragraph, and thereafter payments in
respect of such Swingline Loan shall be made to the Administrative Agent and not
to the applicable Swingline Lender. Any amounts received by the applicable
Swingline Lender from the Borrower (or other party on behalf of the Borrower) in
respect of a Swingline Loan after receipt by such Swingline Lender of the
proceeds of a sale of participations therein shall be promptly remitted to the
Administrative Agent; any such amounts received by the Administrative Agent
shall be promptly remitted by the Administrative Agent to the Revolving Lenders
that shall have made their payments pursuant to this paragraph and to the
applicable Swingline Lender, as their interests may appear, provided that any
such payment so remitted shall be repaid to the applicable Swingline Lender or
to the Administrative Agent, as applicable, if and to the extent such payment is
required to be refunded to the Borrower for any reason. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower of any default in the payment thereof.
SECTION 2.05. Letters of Credit. (a) General. Upon satisfaction of
the conditions specified in Section 4.01 on the Effective Date, each Existing
Pinnacle Letter of Credit will, automatically without any action on the part of
any Person, be deemed to be a Letter of Credit issued hereunder for all purposes
of this Agreement and the other Loan Documents. Upon satisfaction of the
conditions specified in Section 4.02 on the
41
Aurora Effective Date, each Existing Aurora Letter of Credit will, automatically
without any action on the part of any Person, be deemed to be a Letter of Credit
issued hereunder for all purposes of this Agreement and the other Loan
Documents. In addition, subject to the terms and conditions set forth herein,
the Borrower may request the issuance of Letters of Credit for its own account
or the account of any Subsidiary Loan Party, at any time and from time to time
on and after the Effective Date and prior to the date which is 30 days prior to
the Revolving Maturity Date. Each Letter of Credit shall be denominated in
dollars and shall be payable at sight. In the event of any inconsistency between
the terms and conditions of this Agreement and the terms and conditions of any
form of letter of credit application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, any Issuing Bank relating to
any Letter of Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit, the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable Issuing Bank) to
the applicable Issuing Bank (which may be any Issuing Bank selected by the
Borrower if there is more than one Issuing Bank, except that (i) the Issuing
Bank in respect of Existing Pinnacle Letters of Credit shall not be required to
issue additional Letters of Credit or renew or extend an Existing Pinnacle
Letter of Credit unless agreed by it and (ii) the Issuing Bank in respect of
Existing Aurora Letters of Credit shall not be required to issue additional
Letters of Credit or renew or extend an Existing Aurora Letter of Credit unless
agreed by it) and the Administrative Agent (reasonably in advance of the
requested date of issuance which shall be a Business Day) a Letter of Credit
Request requesting the issuance of a Letter of Credit. If requested by the
applicable Issuing Bank, the Borrower also shall submit a letter of credit
application on such Issuing Bank's standard form in connection with any request
for the issuance of a Letter of Credit. To request the amendment, renewal or
extension of an outstanding Letter of Credit, the Borrower shall hand deliver or
telecopy (or transmit by electronic communication, if arrangements for doing so
have been approved by the applicable Issuing Bank) to the applicable Issuing
Bank a request to amend, renew or extend such Letter of Credit, identifying the
Letter of Credit to be amended, renewed or extended with the applicable Letter
of Credit number, and specifying the date of amendment, renewal or extension
(which shall be a Business Day) and such other information as shall be necessary
to amend, renew or extend such Letter of Credit. A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension (i) the LC Exposure shall not exceed (x) prior to the
Aurora Effective Date, $20,000,000 and (y) on or after the Aurora Effective
Date, $40,000,000, (ii) prior to the Aurora Effective Date, the aggregate amount
of the Lenders' Revolving Exposures shall not exceed $65,000,000 or (iii) the
aggregate amount of the Lenders' Revolving Exposures shall not exceed the
aggregate amount of the Lenders' Revolving Commitments. Promptly after the
issuance or amendment of a Standby Letter of Credit, the applicable Issuing Bank
shall notify the Administrative Agent and the Borrower, in writing, of such
issuance or amendment and such notice shall be accompanied by a copy of such
issuance or amendment. Promptly upon receipt of
42
such notice, the Administrative Agent shall notify each Revolving Lender, in
writing, of such issuance or amendment and if so requested by a Revolving
Lender, the Administrative Agent shall provide such Revolving Lender with copies
of such issuance or amendment. With respect to Trade Letters of Credit, the
applicable Issuing Bank shall provide the Administrative Agent on the first
Business Day of each week by facsimile with a report detailing the aggregate
daily outstandings for such Issuing Bank for the previous week.
(c) Expiration Date. Each Standby Letter of Credit shall expire at
or prior to the close of business on the earlier of (i) the date one year after
the date of the issuance of such Standby Letter of Credit (or, in the case of
any renewal or extension thereof, one year after such renewal or extension) and
(ii) the date that is five Business Days prior to the Revolving Maturity Date,
provided that any Standby Letter of Credit may contain customary automatic
renewal provisions agreed upon by the Borrower and the applicable Issuing Bank
pursuant to which the expiration date is automatically extended by a specific
time period (but not to a date later than the date set forth in clause (ii)
above) unless the applicable Issuing Bank gives notice to the beneficiary of
such Standby Letter of Credit prior to the expiration date of such Standby
Letter of Credit. Each Trade Letter of Credit shall expire at or prior to the
close of business on the earlier of (i) 180 days after the date of the issuance
of such Trade Letter of Credit and (ii) the date that is 30 days prior to the
Revolving Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or the Lenders, the
applicable Issuing Bank hereby grants to each Revolving Lender, and each
Revolving Lender hereby acquires from such Issuing Bank, a participation in such
Letter of Credit equal to such Lender's Applicable Percentage of the aggregate
amount available to be drawn under such Letter of Credit. In consideration and
in furtherance of the foregoing, each Revolving Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of
the applicable Issuing Bank, such Lender's Applicable Percentage of each LC
Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the
date due as provided in paragraph (e) of this Section, or of any reimbursement
payment required to be refunded to the Borrower for any reason. Each Revolving
Lender acknowledges and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or reduction or termination of the
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.
(e) Reimbursement. If an Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 3:00 p.m., New York City time, on the date that such
LC Disbursement is made, if the Borrower shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such
notice has not been received by the
43
Borrower prior to such time on such date, then not later than 3:00 p.m., New
York City time, on (i) the Business Day that the Borrower receives such notice,
if such notice is received prior to 10:00 a.m., New York City time, on the day
of receipt, or (ii) the Business Day immediately following the day that the
Borrower receives such notice, if such notice is not received prior to such time
on the day of receipt, provided that, the Borrower may, subject to the
conditions to borrowing set forth herein, request in accordance with Section
2.03 or 2.04 that such payment be financed with an ABR Revolving Borrowing or
Swingline Loan in an equivalent amount and, to the extent so financed, the
Borrower's obligation to make such payment shall be discharged and replaced by
the resulting ABR Revolving Borrowing or Swingline Loan. If the Borrower fails
to make such payment when due, the Administrative Agent shall notify each
Revolving Lender of the applicable LC Disbursement, the payment then due from
the Borrower in respect thereof and such Lender's Applicable Percentage thereof.
Promptly following receipt of such notice, each Revolving Lender shall pay to
the Administrative Agent its Applicable Percentage of the payment then due from
the Borrower, in the same manner as provided in Section 2.06 with respect to
Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to
the payment obligations of the Revolving Lenders), and the Administrative Agent
shall promptly pay to the applicable Issuing Bank the amounts so received by it
from the Revolving Lenders. Promptly following receipt by the Administrative
Agent of any payment from the Borrower pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the applicable Issuing
Bank or, to the extent that Revolving Lenders have made payments pursuant to
this paragraph to reimburse such applicable Issuing Bank, then to such Lenders
and the applicable Issuing Bank as their interests may appear. Any payment made
by a Revolving Lender pursuant to this paragraph to reimburse the applicable
Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving
Loans or a Swingline Loan as contemplated above) shall not constitute a Loan and
shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by an Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. Neither
the Administrative Agent, the Lenders nor any Issuing Bank, nor any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other
44
communication under or relating to any Letter of Credit (including any document
required to make a drawing thereunder), any error in interpretation of technical
terms or any consequence arising from causes beyond the control of any Issuing
Bank, provided that the foregoing shall not be construed to excuse the
applicable Issuing Bank from liability to the Borrower to the extent of any
direct damages (as opposed to consequential or punitive damages, claims in
respect of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by such Issuing Bank's
failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence or wilful
misconduct on the part of an Issuing Bank (as finally determined by a court of
competent jurisdiction), such Issuing Bank shall be deemed to have exercised
care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, the applicable Issuing Bank may, in its
sole discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) Disbursement Procedures. An Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The applicable Issuing Bank shall
promptly notify the Administrative Agent and the Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether such Issuing Bank
has made or will make an LC Disbursement thereunder, provided that any failure
to give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the applicable Issuing Bank and the Revolving Lenders
with respect to any such LC Disbursement in accordance with Section 2.05(e).
(h) Interim Interest. If an Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans,
provided that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, then Section 2.13(c) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
applicable Issuing Bank, except that interest accrued on and after the date of
payment by any Revolving Lender pursuant to paragraph (e) of this Section to
reimburse such Issuing Bank shall be for the account of such Lender to the
extent of such payment.
(i) Issuing Banks. Any Issuing Bank may be terminated, and any
existing Revolving Lender may become an Issuing Bank, in each case at any time
by written agreement among the Borrower, the Administrative Agent and the
terminated Issuing Bank or additional Issuing Bank (as applicable). The
Administrative Agent shall notify the Lenders of any such additional Issuing
Bank. At the time any such termination shall
45
become effective, the Borrower shall pay all unpaid fees accrued for the account
of the terminated Issuing Bank pursuant to Section 2.12(b). From and after the
effective date of any such addition of an Issuing Bank, the additional Issuing
Bank shall have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit issued by it. After the termination
of an Issuing Bank hereunder, the terminated Issuing Bank shall remain a party
hereto and shall continue to have all the rights and obligations of an Issuing
Bank under this Agreement with respect to Letters of Credit issued by it prior
to such termination, but shall not be required to issue additional Letters of
Credit.
(j) Cash Collateralization. If any Event of Default shall occur and
be continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Lenders with LC Exposures representing greater
than 50% of the total LC Exposures) demanding the deposit of cash collateral
pursuant to this paragraph, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Lenders, an amount in cash equal to the LC Exposures as of such
date plus any accrued and unpaid interest thereon, provided that the obligation
to deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other notice
of any kind, upon the occurrence of any Event of Default with respect to the
Borrower described in clause (h) or (i) of Article VII. The Borrower also shall
deposit cash collateral pursuant to this paragraph as and to the extent required
by Section 2.11(b). Each such deposit shall be held by the Administrative Agent
as collateral for the payment and performance of the obligations of the Borrower
under this Agreement. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account. Other
than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of the Administrative Agent and
at the Borrower's risk and expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the Administrative Agent to
reimburse the applicable Issuing Bank for LC Disbursements for which it has not
been reimbursed and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of the Borrower for the LC
Exposures at such time or, if the maturity of the Loans has been accelerated
(but subject to the consent of Revolving Lenders with LC Exposures representing
greater than 50% of the total LC Exposures), be applied to satisfy other
obligations of the Borrower under this Agreement. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence of
an Event of Default, such amount, together with interest or profits (in each
case, to the extent not applied as aforesaid), shall be returned to the Borrower
within three Business Days after all Events of Default have been cured or
waived.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders, provided that Swingline Loans shall be made as provided
in Section 2.04. The Administrative Agent will make such Loans available to the
Borrower by promptly
46
crediting the amounts so received, in like funds, to an account of the Borrower
designated by the Borrower in the applicable Borrowing Request, provided that
ABR Revolving Loans and Swingline Loans made to finance the reimbursement of an
LC Disbursement as provided in Section 2.05(e) shall be remitted by the
Administrative Agent to the applicable Issuing Bank.
(a) 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 such corresponding amount 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. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing as of the date of such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing and
Term Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar 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 Eurodollar Borrowing, may elect Interest
Periods therefor, all as provided in this Section, provided that (i) the
Eurodollar Borrowings made on the Effective Date shall have an Interest Period
of one month's duration and (ii) the Eurodollar Borrowings made on the Aurora
Effective Date shall have Interest Periods that are coterminous with the
then-outstanding Eurodollar Borrowings of the same Class in amounts that are
proportionate to then-outstanding Eurodollar Borrowings. 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. This Section shall not apply
to Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, 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 Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request
47
shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request
signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02 and paragraph
(e) of this Section:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender 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 Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request 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 Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
SECTION 2.08. Termination and Reduction of Commitments. (a) Unless
previously terminated, (i) the Initial Term Loan Commitments shall terminate at
5:00 p.m., New York City time, on the Effective Date, (ii) the Delayed Draw Term
Loan Commitments shall terminate at 5:00 p.m., New York City time, on the
earlier of the Aurora Effective Date and the Delayed Draw Expiration Date and
(iii) the Revolving Commitments shall terminate on the Revolving Maturity Date,
provided that if the
48
Aurora Effective Date shall not have occurred, Revolving Commitments in an
aggregate amount of $65,000,000 shall expire on the Delayed Draw Expiration
Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments of any Class, provided that (i) each reduction of the
Commitments of any Class shall be in an amount that is an integral multiple of
$1,000,000 and not less than $1,000,000 and (ii) the Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.11,
the aggregate amount of the Lenders' Revolving Exposures would exceed the
aggregate amount of the Lenders' Revolving Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable, provided that a notice
of termination of the Revolving Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other borrowings or
the completion of the sale or issuance of Equity Interests of Holdings or the
sale of assets of the Borrower (to the extent permitted by Article VI), in which
case such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments of any Class shall be
permanent. Each reduction of the Commitments of any Class shall be made ratably
among the Lenders in accordance with their respective Commitments of such Class.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
of such Lender on the Revolving Maturity Date, (ii) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each Term
Loan of such Lender as provided in Section 2.10 and (iii) to each Swingline
Lender the then unpaid principal amount of each Swingline Loan made by such
Swingline Lender on the earlier of the Revolving Maturity Date and the first
date after such Swingline Loan is made that is the 15th or last day of a
calendar month and is at least two Business Days after such Swingline Loan is
made, provided that on each date that a Revolving Borrowing is made, the
Borrower shall repay all Swingline Loans that were outstanding on the date such
Borrowing was requested.
(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.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the
49
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder 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 of any Class 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 in a form approved by the Administrative Agent and the Borrower.
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. Amortization of Term Loans. (a) Subject to adjustment
pursuant to paragraph (c) of this Section, the Borrower shall repay Term
Borrowings on each date set forth below in the aggregate principal amount equal
to the product of (i) the percentage set forth below opposite such date and (ii)
the sum of (A) the aggregate principal amount of the Initial Term Loans made on
the Effective Date and (B) if the Aurora Effective Date shall occur, the
aggregate principal amount of Delayed Draw Term Loans made on the Aurora
Effective Date:
Date Amount
------------------ ------
June 30, 2004 0.25%
September 30, 2004 0.25%
December 31, 2004 0.25%
March 31, 2005 0.25%
June 30, 2005 0.25%
September 30, 2005 0.25%
December 31, 2005 0.25%
March 31, 2006 0.25%
June 30, 2006 0.25%
September 30, 2006 0.25%
December 31, 2006 0.25%
March 31, 2007 0.25%
June 30, 2007 0.25%
September 30, 2007 0.25%
December 31, 2007 0.25%
50
Date Amount
------------------ ------
March 31, 2008 0.25%
June 30, 2008 0.25%
September 30, 2008 0.25%
December 31, 2008 0.25%
March 31, 2009 0.25%
June 30, 2009 0.25%
September 30, 2009 0.25%
December 31, 2009 0.25%
March 31, 2010 23.50%
June 30, 2010 23.50%
September 30, 2010 23.50%
November 25, 2010 23.75%
(b) To the extent not previously paid, all Term Loans shall be due
and payable on the Term Loan Maturity Date.
(c) Any prepayment of a Term Borrowing shall be applied (i) in the
case of prepayments made pursuant to Section 2.11(a), to reduce the remaining
subsequent scheduled repayments of the Term Borrowings pursuant to this Section
as directed by the Borrower and (ii) in the case of prepayments made pursuant to
Section 2.11(c) or Section 2.11(d), to reduce the subsequent scheduled
repayments of the Term Borrowings to be made pursuant to this Section ratably.
(d) Prior to any repayment of any Term Borrowings hereunder, the
Borrower shall select the Borrowing or Borrowings to be repaid and shall notify
the Administrative Agent by telephone (confirmed by telecopy) of such selection
not later than 11:00 a.m., New York City time, (i) three Business Days before
the scheduled date of such repayment in the case of Eurodollar Borrowings or
(ii) one Business Day before the scheduled date of repayment in the case of ABR
Borrowings. Each repayment of a Borrowing shall be applied ratably to the Loans
included in the repaid Borrowing. Repayments of Term Borrowings shall be
accompanied by accrued interest on the amount repaid.
SECTION 2.11. Prepayment of Loans. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to the requirements of this Section.
(b) In the event and on such occasion that the aggregate amount of
the Lenders' Revolving Exposures exceeds the aggregate amount of the Lenders'
Revolving Commitments, the Borrower shall prepay Revolving Borrowings or
Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash
collateral in an account with the Administrative Agent pursuant to Section
2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are
received by or on behalf of Holdings, the Borrower or any Subsidiary in respect
of any
51
Prepayment Event, the Borrower shall, within three Business Days after
such Net Proceeds are received, prepay Term Borrowings in an aggregate amount
equal to (x) in the case of a prepayment event described in clause (c) of the
definition of the term "Prepayment Event", 50% of such Net Proceeds and (y) in
the case of all other Prepayment Events, 100% of such Net Proceeds, provided
that, in the case of any event described in clauses (a) or (b) of the definition
of the term "Prepayment Event", if the Borrower shall deliver to the
Administrative Agent a certificate of a Financial Officer to the effect that the
Borrower and the Subsidiaries intend to apply the Net Proceeds from such event
(or a portion thereof specified in such certificate), within 360 days after
receipt of such Net Proceeds, to acquire real property, equipment, other
tangible assets (excluding inventory) or intellectual property to be used in the
business of the Borrower and the Subsidiaries, and certifying that no Default
has occurred and is continuing, then no prepayment shall be required pursuant to
this paragraph in respect of the Net Proceeds in respect of such event (or the
portion of such Net Proceeds specified in such certificate, if applicable)
except to the extent of any such Net Proceeds therefrom that have not been so
applied by the end of such 360-day period, at which time a prepayment shall be
required in an amount equal to such Net Proceeds that have not been so applied.
(d) Following the end of each fiscal year of the Borrower,
commencing with the fiscal year ending July 31, 2004 (or, if prior to the date
on which financial statements are delivered pursuant to Section 5.01 for such
period, the Borrower delivers a certificate of a Financial Officer stating that
Holdings and the Borrower intend to change their and the Subsidiaries' fiscal
year end for fiscal reporting purposes to December 31, then commencing with the
fiscal year ending December 31, 2004), the Borrower shall prepay Term Borrowings
in an aggregate amount equal to (i) the excess of (A) 75% of Excess Cash Flow
over (B) prepayments of Term Loans under Section 2.11(a) during such fiscal
year, for any fiscal year for which the Leverage Ratio at the end of such fiscal
year is greater than or equal to 4.00 to 1.00, (ii) the excess of (A) 50% of
Excess Cash Flow over (B) prepayments of Term Loans under Section 2.11(a) during
such fiscal year, for any fiscal year for which the Leverage Ratio at the end of
such fiscal year is less than 4.00 to 1.00 and greater than or equal to 2.50 to
1.00 and (iii) 0% of Excess Cash Flow for any fiscal year for which the Leverage
Ratio at the end of such fiscal year is less than 2.50 to 1.00. Each prepayment
pursuant to this paragraph shall be made on or before the date that is five days
after the date on which financial statements are delivered pursuant to Section
5.01 with respect to the fiscal year for which Excess Cash Flow is being
calculated (and in any event within 95 days after the end of such fiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings
hereunder, the Borrower shall select the Borrowing or Borrowings to be prepaid
and shall specify such selection in the notice of such prepayment pursuant to
paragraph (f) of this Section. In the event of any prepayment of Term Borrowings
pursuant to Section 2.11(c) or 2.11(d), any Term Loan Lender may elect, by
notice to the Administrative Agent by telephone (confirmed by telecopy) at least
one Business Day prior to the prepayment date not to have such prepayment
applied to such Lender's Term Loans, in which case (i) so long as Revolving
Borrowings are outstanding, the aggregate amount of the prepayment not so
applied to prepay the Term Loans shall be applied to prepay Revolving Borrowings
(without a concurrent reduction of the Revolving Commitments) and
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(ii) once all Revolving Borrowings have been paid in full, the amount not so
applied (the "Retained Mandatory Prepayment Amount") shall be retained by the
Borrower and used for general corporate purposes.
(f) The Borrower shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan, the applicable Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon, New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date, the principal amount of each Borrowing or portion
thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably
detailed calculation of the amount of such prepayment, provided that, if a
notice of optional prepayment is given in connection with a conditional notice
of termination of the Revolving Commitments as contemplated by Section 2.08,
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.08. Promptly following receipt of any such
notice (other than a notice relating solely to Swingline Loans), the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance of a Borrowing of the same Type as provided
in Section 2.02, except as necessary to apply fully the required amount of a
mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to
the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.13.
SECTION 2.12. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Lender a commitment fee,
which shall accrue at a rate equal to 0.50% per annum on the average daily
unused amount of each Revolving Commitment of such Lender during the period from
and including the Effective Date to but excluding the date on which the
Revolving Commitments terminate. Accrued commitment fees shall be payable in
arrears on the last Business Day of each March, June, September and December and
on the date on which such Commitments terminate, commencing on the first such
date to occur after the date hereof. All commitment fees shall be computed on
the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). For purposes
of computing commitment fees with respect to Revolving Commitments, a Revolving
Commitment of a Lender shall be deemed to be used to the extent of the
outstanding Revolving Loans and LC Exposure of such Lender (and the Swingline
Exposure of such Lender shall be disregarded for such purpose).
(b) The Borrower agrees to pay to the Administrative Agent for the
account of each Term Loan Lender a commitment fee, which shall accrue at a rate
equal to 1.25% per annum, on the average daily unused amount of the Delayed Draw
Term Loan Commitment of such Term Loan Lender during the period from and
including the Effective Date to but excluding the earlier of the Aurora
Effective Date and the Delayed
53
Draw Expiration Date, payable quarterly in arrears on the last Business Day of
each March, June, September and December and on the date on which such Delayed
Draw Term Loan Commitments terminate, commencing on the first such date to occur
after the date hereof.
(c) The Borrower agrees to pay (i) to the Administrative Agent for
the account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Rate used to determine the interest rate applicable to Eurodollar Revolving
Loans on the actual daily amount of such Lender's LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Effective Date to but excluding the later of the date on
which such Lender's Revolving Commitment terminates and the date on which such
Lender ceases to have any LC Exposure, and (ii) to the applicable Issuing Bank a
fronting fee, which shall accrue at the rate of 0.25% per annum on the actual
daily amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date of termination of the
Revolving Commitments and the date on which there ceases to be any LC Exposure,
as well as the applicable Issuing Bank's standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder. Participation fees and fronting fees shall be payable in
arrears on the last Business Day of each March, June, September and December,
commencing on the first such date to occur after the Effective Date, provided
that all such fees shall be payable on the date on which the Revolving
Commitments terminate and any such fees accruing after the date on which the
Revolving Commitments terminate shall be payable on demand. Any other fees
payable to any Issuing Bank pursuant to this paragraph shall be payable within
10 days after demand. All participation fees and fronting fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
(d) The Borrower agrees to pay to the Agents, for their respective
accounts, fees payable in the amounts and at the times separately agreed upon
among the Borrower and the Agents .
(e) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the applicable
Issuing Bank, in the case of fees payable to it) for distribution, in the case
of commitment fees and participation fees, to the Lenders entitled thereto. Fees
paid shall not be refundable under any circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at the Alternate Base Rate
plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
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(c) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any fee 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 Revolving Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Revolving Commitments, provided that (i) interest
accrued pursuant to paragraph (c) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Revolving
Availability Period), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in the
event of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar 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 for such Interest
Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate 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 (which notice the
Administrative Agent agrees to give promptly after such circumstances cease to
exist), (i) any Interest Election Request that requests the conversion of any
Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall
be ineffective and (ii) if any Borrowing
55
Request requests a Eurodollar 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 any Issuing Bank; or
(ii) impose on any Lender or any Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or any
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or Issuing
Bank hereunder (whether of principal, interest or otherwise), then the Borrower
will pay to such Lender or Issuing Bank, as the case may be, such additional
amount or amounts as will compensate such Lender or Issuing Bank, as the case
may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or any Issuing Bank determines that any Change in
Law regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or Issuing Bank's capital or on the capital of
such Lender's or Issuing Bank's holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in Letters of Credit held
by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a
level below that which such Lender or Issuing Bank or such Lender's or Issuing
Bank's holding company could have achieved but for such Change in Law (taking
into consideration such Lender's or Issuing Bank's policies and the policies of
such Lender's or Issuing Bank's holding company with respect to capital
adequacy), then from time to time the Borrower will pay to such Lender or
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or Issuing Bank or such Lender's or Issuing Bank's
holding company for any such reduction suffered.
(c) A certificate of a Lender or Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or Issuing Bank, as the case
may be, the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender or an Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or Issuing Bank's right to demand such compensation, provided that
the
56
Borrower shall not be required to compensate a Lender or Issuing Bank pursuant
to this Section for any increased costs or reductions incurred more than 180
days prior to the date that such Lender or Issuing Bank, as the case may be,
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender's or Issuing Bank's intention to claim
compensation therefor, and provided further that, if the Change in Law giving
rise to such increased costs or reductions is retroactive, then the 180-day
period referred to above shall be extended to include the period of retroactive
effect thereof.
SECTION 2.16. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar 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 Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Term Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.11(f) and is revoked in accordance therewith), or (d)
the assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.19, then, in any such event, the Borrower shall compensate each Lender
for the loss (other than loss of margin or anticipated profit), cost and expense
attributable to such event. In the case of a Eurodollar Loan, such loss, cost or
expense to any Lender shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, 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 dollar deposits 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 the Borrower hereunder or under any other Loan Document shall
be made free and clear of and without deduction for any Indemnified Taxes or
Other Taxes, provided that if the Borrower 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)
the Administrative Agent, a Lender or an Issuing Bank (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
57
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and each Issuing Bank, within 10 days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or such Issuing Bank, as the case may be, on
or with respect to any payment by or on account of any obligation of the
Borrower hereunder or under any other Loan Document (including Indemnified Taxes
or Other Taxes imposed or asserted on or attributable to amounts payable under
this Section) and any penalties, interest and 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 the Borrower by a Lender or an Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or an Issuing
Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower 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 Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law 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 to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate.
(f) If the Administrative Agent or a Lender determines, in its sole
good faith discretion, that it has received a refund of any Indemnified Taxes or
Other Taxes as to which it has been indemnified by the Borrower or with respect
to which the Borrower has paid additional amounts pursuant to this Section 2.17,
it shall upon such determination pay over such refund to the Borrower (but only
to the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section 2.17 with respect to the Indemnified Taxes or Other
Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses
of the Administrative Agent or such Lender and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund), provided that the Borrower, upon the request of the Administrative
Agent or such Lender, agrees to repay the amount paid over to the Borrower (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 shall not be construed to require the
58
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
Borrower or any other Person.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) The Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.15,
2.16 or 2.17, or otherwise) prior to the time expressly required hereunder or
under such other Loan Document for such payment (or, if no such time is
expressly required, prior to 12:00 noon, New York City time), on the date when
due, in immediately available funds, without 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 at its offices at 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 except payments to be made directly to an Issuing Bank or a
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons
entitled thereto and payments pursuant to other Loan Documents shall be made to
the Persons specified therein. 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 under
any Loan Document 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 under each Loan Document shall be made in
dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, unreimbursed
LC Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or by taking a credit against the purchase price payable in respect
of Collateral pursuant to Section 5.01 of the Collateral Agreement or otherwise,
obtain payment in respect of any principal of or interest on any of its
Revolving Loans, Term Loans or participations in LC Disbursements or Swingline
Loans resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans, Term Loans and participations in LC Disbursements and Swingline
Loans of other Lenders to the extent necessary so that the benefit of all such
payments shall be shared by
59
the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans, Term Loans and
participations in LC Disbursements and Swingline Loans, provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph 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 or
participations in LC Disbursements to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph 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 or any Issuing Bank 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 or the applicable
Issuing Bank, as the case may be, the amount due. In such event, if the Borrower
has not in fact made such payment, then each of the Lenders or each Issuing
Bank, as the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or Issuing Bank
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at 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.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or 9.03(c),
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 judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
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future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. 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 if any Lender defaults in its obligation to fund Loans hereunder, 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 (and
if a Revolving Commitment is being assigned, each Issuing Bank and each
Swingline Lender), 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 and participations in LC Disbursements and Swingline
Loans, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or 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 material reduction in such
compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
SECTION 2.20. Incremental Extensions of Credit. After the end of the
Standstill Period, subject to the terms and conditions set forth herein, the
Borrower may at any time and from time to time, request to add additional term
loans or additional revolving commitments (together, the "Incremental Extensions
of Credit") in minimum principal amounts of $5,000,000, provided that (a)
immediately prior to and after giving effect to any Incremental Facility
Amendment, no Default has occurred or is continuing or shall result therefrom
and the Borrower shall be in compliance with Sections 6.12, 6.13 and 6.14, (b)
immediately after giving effect to the Incremental Facility Amendment, the
Borrower shall have a Senior Leverage Ratio, on a Pro Forma Basis, of less than
2.50 to 1.00, and (c) the Incremental Extensions of Credit shall rank pari passu
or junior in right of payment and right of security in respect of the Collateral
with the Revolving Loans and the Term Loans. The Incremental Extensions of
Credit (a) shall be in an aggregate principal amount not exceeding $125,000,000
and (b) other than amortization, pricing or maturity date, shall have the same
terms as the Term Loans or Revolving Commitments, as applicable, existing
immediately prior to the effectiveness of an Incremental Facility Amendment (the
"Existing Extensions of Credit"), provided that (i) if the Applicable Rate
(which, for such purposes only, shall be deemed to include all upfront or
similar fees or original issue discount payable to all Lenders providing such
Incremental Extensions of Credit) relating to the Incremental Extensions of
Credit
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exceeds the Applicable Rate (which, for such purposes only, shall be deemed to
include all upfront or similar fees or original issue discount payable to all
Lenders providing such Existing Extensions of Credit) relating to the analogous
Existing Extensions of Credit by more than 0.25%, the Applicable Rate relating
to the Existing Extensions of Credit shall be adjusted to be equal to the
Applicable Rate (which, for such purposes only, shall be deemed to include all
upfront or similar fees or original issue discount payable to all Lenders
providing such Incremental Extensions of Credit) relating to the analogous
Incremental Extensions of Credit minus 0.25%, (ii) the Incremental Extensions of
Credit in the form of Term Loans shall not have a final maturity date earlier
than the Term Loan Maturity Date and the maturity date of the Incremental
Extensions of Credit in the form of Revolving Commitments shall not be earlier
than the Revolving Maturity Date and (iii) Incremental Extensions of Credit in
the form of Term Loans shall not have a weighted average life that is shorter
than that of the then-remaining weighted average life of the Existing Extensions
of Credit that are Term Loans. Notwithstanding the foregoing, (a) the Borrower
may obtain Incremental Extensions of Credit during the Standstill Period in an
aggregate principal amount of up to (i) prior to the Aurora Effective Date,
$10,000,000 and (ii) on or after the Aurora Effective Date, $25,000,000, in each
case to the extent used to finance Permitted Acquisitions satisfying the
conditions in clause (f) of the definition thereof, provided that (A) no Default
has occurred or is continuing or shall result therefrom and (B) the Borrower
shall be in compliance with Sections 6.12, 6.13 and 6.14 on a Pro Forma Basis
and (b) on the Aurora Effective Date, the Borrower may obtain Incremental
Extensions of Credit in the form of term loans in an aggregate principal amount
of up to $25,000,000 in connection with the Aurora Acquisition, provided that
the aggregate principal amount of such loans shall be reduced by the amount by
which the aggregate principal amount of the Additional Aurora Securities exceeds
$175,000,000. Any additional bank, financial institution, existing Lender or
other Person that elects to extend commitments to provide Incremental Extensions
of Credit shall be reasonably satisfactory to the Borrower and the
Administrative Agent (any such bank, financial institution, existing Lender or
other Person being called an "Additional Lender") and shall become a Lender
under this Agreement, pursuant to an amendment (an "Incremental Facility
Amendment") to this Agreement, giving effect to the modifications permitted by
this Section 2.20, and, as appropriate, the other Loan Documents, executed by
the Borrower, each existing Lender agreeing to provide a commitment in respect
of the Incremental Extensions of Credit, if any, each Additional Lender, if any,
and the Administrative Agent. Commitments in respect of Incremental Extensions
of Credit shall become Commitments under this Agreement. An Incremental Facility
Amendment may, without the consent of any other Lenders, effect such amendments
to this Agreement and the other Loan Documents as may be necessary or
appropriate, in the opinion of the Administrative Agent, to effect the
provisions of this Section. The effectiveness of any Incremental Facility
Amendment shall be subject to the satisfaction on the date thereof (each, an
"Incremental Facility Closing Date") of each of the conditions set forth in
Section 4.03 (it being understood that all references to "the date of such
Borrowing" in such Section 4.03 shall be deemed to refer to the Incremental
Facility Closing Date). No more than five Incremental Facility Closing Dates may
be selected by the Borrower. Except as set forth above, the proceeds of the
Incremental Extensions of Credit shall be used for general corporate purposes.
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ARTICLE III
Representations and Warranties
Each of Holdings and the Borrower represents and warrants to the
Lenders that:
SECTION 3.01. Organization; Powers. Each of Holdings, the Borrower
and the Subsidiaries is duly organized, validly existing and, where applicable,
in good standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to own or lease its properties and to carry on its
business as currently conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.
SECTION 3.02. Authorization; Enforceability. The Transactions to be
entered into by each Loan Party are within such Loan Party's powers and have
been duly authorized by all necessary corporate or company and, if required,
stockholder or member action. This Agreement has been duly executed and
delivered by each of Holdings and the Borrower and constitutes, and each other
Loan Document to which any Loan Party is to be a party, when executed and
delivered by such Loan Party, will constitute, a legal, valid and binding
obligation of Holdings, the Borrower or such Loan Party (as the case may be),
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
(a) do not require any material consent or approval of, registration or filing
with, or any other action by, any Governmental Authority, except such as have
been obtained or made and are in full force and effect and except filings
necessary to perfect Liens created under the Loan Documents, (b) will not
violate (i) in any material respect any applicable law or regulation or any
order of any Governmental Authority or (ii) the charter, by-laws or other
organizational documents of Holdings, the Borrower or any Subsidiary, (c) will
not violate or result in a default under any material indenture, agreement or
other instrument binding upon Holdings, the Borrower or any Subsidiary or its
assets, or give rise to a right thereunder to require any payment to be made by
Holdings, the Borrower or any of the Subsidiaries, and (d) will not result in
the creation or imposition of any Lien on any asset of Holdings, the Borrower or
any of the Subsidiaries, except Liens created under the Loan Documents.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a)
The Borrower has heretofore furnished to the Lenders (i)(A) the Borrower's
consolidated balance sheets as of July 31, 2003, July 31, 2002 and July 31, 2001
and the statements of operations, shareholders' equity and cash flows for the
fiscal years ended July 31, 2003 and July 31, 2002 and for the period from March
29, 2001 to July 31, 2001, and the related notes thereto, accompanied by a true
and correct copy of the reports
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thereon by PricewaterhouseCoopers LLP, independent public accountants, and (B)
audited consolidated statements of operations, changes in investment (deficit)
in net assets, and cash flows of the Frozen Foods and Condiments Businesses of
Vlasic Foods International Inc. (the Borrower's predecessor) for the forty-two
weeks ended May 22, 2001, and the related notes thereto, accompanied by a true
and correct copy of the report thereon by PricewaterhouseCoopers LLP,
independent public accountants, and (ii) PFC's unaudited consolidated balance
sheet, together with related interim unaudited consolidated statement of
operations and cash flows as of and for the fiscal months and the portions of
the fiscal year ended August 31, 2003 and September 30, 2003, certified by the
Borrower's chief financial officer. Such financial statements present fairly, in
all material respects, the financial position and results of operations and cash
flows of the Borrower and the Subsidiaries (or PFC and its subsidiaries, as the
case may be), on a consolidated basis, as of such dates and for such periods in
accordance with GAAP, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii) above.
(b) Holdings has heretofore furnished to the Lenders its (i) pro
forma consolidated balance sheet as of July 31, 2003, prepared giving effect to
the Transactions as if the Transactions had occurred on such date and (ii) pro
forma consolidated balance sheet as of July 31, 2003, prepared giving effect to
the Transactions and the Aurora Acquisition as if the Transactions and the
Aurora Acquisition had occurred on such date. Each such pro forma consolidated
balance sheet (i) has been prepared in good faith based on the same assumptions
used to prepare the pro forma financial statements included in the Information
Memorandum (which assumptions are believed by Holdings and the Borrower to be
reasonable), (ii) is based on the best information available to Holdings and the
Borrower after due inquiry, (iii) accurately reflects all material adjustments
necessary to give effect to the Transactions or the Transactions occurring on or
about the Effective Date and the Aurora Acquisition, as applicable, and (iv)
presents fairly, in all material respects, the pro forma financial position of
Holdings, the Borrower and the Subsidiaries, on a consolidated basis, as of July
31, 2003, as if such events had occurred on such date.
(c) Holdings has heretofore furnished to the Agents reasonably
detailed consolidated budgets for the Borrower, (i) after giving effect to the
Transactions, for the fiscal year ending July 31, 2004 and (ii) after giving
effect to the Transactions and the Aurora Acquisition, for the fiscal year
ending December 31, 2004, in each case, organized on a quarterly basis
(including a quarterly breakout of slotting and trade promotion expenses).
(d) Except as disclosed in the financial statements referred to in
paragraphs (a) and (b) above or the notes thereto or in the Information
Memorandum and except for the Disclosed Matters, after giving effect to the
Transactions occurring on or about the Effective Date, none of Holdings, the
Borrower or the Subsidiaries has, as of the Effective Date, any material
contingent liabilities, unusual long-term commitments or unrealized losses.
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(e) Since July 31, 2003, there has been no material adverse effect
on the condition (financial or otherwise), assets, operations or business of
Holdings, the Borrower and the Subsidiaries, taken as a whole, provided that, on
or after the Aurora Effective Date, neither the commencement of the Case nor any
material adverse change disclosed in Aurora's periodic reports (including
current reports on Form 8-K) that are filed prior to the Effective Date with the
SEC pursuant to the Securities Exchange Act of 1934 shall constitute by itself
such a material adverse change.
(f) As of the Aurora Effective Date, since December 31, 2002, there
has been no condition or circumstance that has had, or could reasonably be
expected to have, a material adverse effect on the business, operations,
performance, properties, condition (financial or otherwise) or liabilities
(including contingent liabilities) of or applicable to Aurora and its
subsidiaries, taken as a whole, provided that neither the commencement of the
Case nor any material adverse change disclosed in Aurora's periodic reports
(including current reports on Form 8-K) that are filed prior to the Effective
Date with the SEC pursuant to the Securities Exchange Act of 1934 shall
constitute by itself such a material adverse change. As of the Aurora Effective
Date, the financial statements delivered pursuant Section 4.01(k) and 4.02(o)
present fairly, in all material respects, the financial position and results of
operations and cash flows of Aurora and its subsidiaries, on a consolidated
basis, as of the dates and for the periods referenced in such financial
statements in accordance with GAAP, subject to year-end adjustments and absence
of footnotes, in the case of interim financial statements.
SECTION 3.05. Properties. (a) Each of Holdings, the Borrower and the
Subsidiaries has good title to, or valid leasehold interests in, all the real
and personal property material to its business (including its Mortgaged
Properties), except for Liens permitted by Section 6.02 and minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes.
(b) Each of Holdings, the Borrower and the Subsidiaries owns, or is
licensed or otherwise permitted to use, all trademarks, trade names, copyrights,
patents and other intellectual property material to the business of Holdings,
the Borrower and the Subsidiaries, taken as a whole, and, to the knowledge of
the Borrower, the use thereof by Holdings, the Borrower and the Subsidiaries
does not infringe upon the rights of any other Person, except for any such
infringements that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
(c) Schedule 3.05 sets forth the address of each real property that
is owned or leased by Holdings, the Borrower or any of the Subsidiaries as of
the Effective Date after giving effect to the Transactions occurring on or about
the Effective Date.
(d) As of the Effective Date, neither Holdings or the Borrower nor
any of the Subsidiaries has received notice of, or has knowledge of, any pending
or contemplated condemnation proceeding affecting any Mortgaged Property or any
sale or disposition thereof in lieu of condemnation. Neither any Mortgaged
Property nor any interest of Holdings, the Borrower or any of the Subsidiaries
therein is subject to any
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right of first refusal, option or other contractual right to purchase such
Mortgaged Property or such interest therein.
SECTION 3.06. Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of Holdings, the Borrower or any
Subsidiary, threatened against Holdings, the Borrower or any Subsidiary (i) as
to which there is a reasonable possibility of an adverse determination and that,
if adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve any of the Loan Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, none of Holdings, the Borrower
and the Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
SECTION 3.07. Compliance with Laws and Agreements. Each of Holdings,
the Borrower and the Subsidiaries is in compliance with all laws, regulations
and orders of any Governmental Authority applicable to it or its property and
all indentures, agreements and other instruments binding upon it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect. No
Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. None of
Holdings, the Borrower and the Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of Holdings, the Borrower and the
Subsidiaries has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all Taxes required
to have been paid by it, except (a) any Taxes that are being contested in good
faith by appropriate proceedings and for which Holdings, the Borrower or such
Subsidiary, as applicable, has set aside on its books adequate reserves in
conformity with GAAP (or, in the case of any Foreign Subsidiary, generally
accepted accounting principles as in effect from time to time in its
jurisdiction of organization) or (b) to the extent that the failure to do so
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which
66
liability is reasonably expected to result, could reasonably be expected to
result in liability of Holdings, the Borrower and the Subsidiaries in an
aggregate amount exceeding $5,000,000 (or, on or after the Aurora Effective
Date, $15,000,000). The present value of all accumulated benefit obligations
under each Plan (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market
value of the assets of such Plan or, if such present value did exceed such fair
market value, then such circumstances could not reasonably be expected to result
in any effort by the PBGC to terminate such Plan. The minimum funding standards
of ERISA and the Code with respect to each Plan have been satisfied.
SECTION 3.11. Disclosure. Holdings and the Borrower have disclosed
to the Lenders all agreements, instruments and corporate or other restrictions
to which Holdings, the Borrower or any of the Subsidiaries is subject, and all
other matters known to any of them, that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect. Except as
set forth on Schedule 3.11, neither the Information Memorandum nor any of the
other reports, financial statements, certificates or other written information
furnished by or on behalf of any Loan Party to any Agent or any Lender in
connection with the negotiation of this Agreement or any other Loan Document or
delivered hereunder or thereunder or oral information furnished by or on behalf
of any Loan Party to any Lender as part of the syndication of the Loans (as
modified or supplemented by other information so furnished), taken as a whole,
as of the date thereof and as of the date such information was made available to
the Agents contains (and in the case of the Information Memorandum, contains as
of the Effective Date) any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, provided that, with
respect to projected financial information, Holdings and the Borrower represent
only that such information was prepared in good faith based upon assumptions
believed by it to be reasonable at the time of preparation and at the time such
information is initially made available to the Administrative Agent or Lenders
(and, in the case of the projected financial information included in the
Information Memorandum, as of the Effective Date).
SECTION 3.12. Subsidiaries. Before giving effect to the Pinnacle
Acquisition, Holdings does not have any subsidiaries other than MergerCo. After
giving effect to the Pinnacle Acquisition, Holdings does not have any
subsidiaries other than the Borrower and the Subsidiaries. Schedule 3.12 sets
forth the name of, and the ownership interest of the Borrower in, each
Subsidiary and identifies each Subsidiary that is a Subsidiary Loan Party, in
each case as of the Effective Date.
SECTION 3.13. Insurance. Schedule 3.13 sets forth a description of
all insurance maintained by or on behalf of Holdings, the Borrower and the
Subsidiaries as of the Effective Date. As of the Effective Date, all premiums in
respect of such insurance have been paid. Holdings and the Borrower believe that
the insurance maintained by or on behalf of Holdings, the Borrower and the
Subsidiaries is adequate.
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SECTION 3.14. Labor Matters. As of the Effective Date, there are no
strikes, lockouts or slowdowns against Holdings, the Borrower or any Subsidiary
pending or, to the knowledge of Holdings or the Borrower, threatened. As of the
Effective Date, no claims have been asserted against Holdings, the Borrower or
any Subsidiary concerning the hours worked by and payments made to employees of
Holdings, the Borrower and the Subsidiaries for violation of the Fair Labor
Standards Act or any other applicable Federal, state, local or foreign law
dealing with such matters. All material payments due from Holdings, the Borrower
or any Subsidiary, or for which any claim may be made against Holdings, the
Borrower or any Subsidiary, on account of wages and employee health and welfare
insurance and other benefits, have been paid or accrued as a liability on the
books of Holdings, the Borrower or such Subsidiary. The consummation of the
Transactions will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement
by which Holdings, the Borrower or any Subsidiary is bound. As of the Aurora
Effective Date, the consummation of the Aurora Acquisition will not give rise to
any right of termination or right of renegotiation on the part of any union
under any collective bargaining agreement by which Holdings, the Borrower or any
Subsidiary is bound.
SECTION 3.15. Solvency. Immediately after the consummation of the
Transactions to occur on the Effective Date and immediately following the making
of each Loan made on the Effective Date and after giving effect to the
application of the proceeds of such Loans, (a) the fair value of the assets of
each Loan Party, at a fair valuation, will exceed its debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of
the property of each Loan Party will be greater than the amount that will be
required to pay the probable liability of its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) each Loan Party will be able to pay its debts
and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) each Loan Party will not have
unreasonably small capital with which to conduct the business in which it is
engaged as such business is currently conducted and is proposed to be conducted
following the Effective Date.
SECTION 3.16. Senior Indebtedness. The Obligations constitute
"Senior Debt" and "Designated Senior Debt" under and as defined in the Senior
Subordinated Debt Documents.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders to make
the Loans and of an Issuing Bank to issue Letters of Credit hereunder shall not
become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):
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(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 Agents shall have received a favorable written opinion
(addressed to the Agents and the Lenders and dated the Effective Date) of each
of (i) O'Melveny & Xxxxx LLP, counsel for the Borrower, substantially in the
form of Exhibit D-1, and (ii) Stikeman Elliott LLP, substantially in the form of
Exhibit D-2. Each of Holdings and the Borrower hereby requests such counsel to
deliver such opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of each Loan Party,
the authorization of the Transactions and any other legal matters relating to
the Loan Parties, the Loan Documents or the Transactions, all in form and
substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the President or a Vice President of the
Borrower or a Financial Officer, confirming compliance with the conditions set
forth in paragraphs (a) and (b) of Section 4.03.
(e) The Agents shall have received all fees and other amounts due
and payable on or prior to the Effective Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses (including
reasonable fees, charges and disbursements of counsel) required to be reimbursed
or paid by any Loan Party hereunder or under any other Loan Document.
(f) The Collateral and Guarantee Requirement shall have been
satisfied, and the Administrative Agent shall have received a completed
Perfection Certificate dated the Effective Date and signed by an executive
officer or Financial Officer, together with all attachments contemplated
thereby, including the results of a search of the Uniform Commercial Code (or
equivalent) filings made with respect to the Loan Parties in the jurisdictions
contemplated by the Perfection Certificate and copies of the financing
statements (or similar documents) disclosed by such search and evidence
reasonably satisfactory to the Administrative Agent that the Liens indicated by
such financing statements (or similar documents) are permitted by Section 6.02
or have been released, provided that evidence that the deposit account control
arrangements contemplated by the Collateral Agreement have been established may
be delivered after the Effective Date by the Loan Parties in accordance with
Section 5.13(c).
(g) The Administrative Agent shall have received evidence that the
insurance required by Section 5.07 and the Security Documents is in effect.
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(h) Crunch LLC shall have received gross proceeds of not less than
$181,100,000 (less the amount, if any, by which Transaction Costs are less than
$22,600,000) from the Equity Contribution. Crunch LLC shall have contributed all
net cash proceeds of the Equity Contribution to Holdings and Holdings shall have
contributed all such cash proceeds of the Equity Contribution to MergerCo as a
capital contribution.
(i) The Borrower shall have received gross cash proceeds of not less
than $200,000,000 from the issuance of the Initial Senior Subordinated Notes.
The Administrative Agent shall have received copies of the Senior Subordinated
Debt Documents, certified by a Financial Officer as complete and correct.
(j) All material governmental and third-party approvals necessary in
connection with the Transactions and the other transactions contemplated thereby
(including shareholder approvals, if any) shall have been obtained and be in
full force and effect; all applicable waiting or appeal periods (including any
extensions thereof) shall have expired and there shall be no governmental or
judicial action, actual or threatened, that could reasonably be expected to
restrain, prevent or impose burdensome conditions on the Transactions or the
other transactions contemplated thereby. The Pinnacle Acquisition shall have
been consummated or shall be consummated substantially simultaneously with the
initial funding of Loans on the Effective Date in accordance with applicable law
and the Pinnacle Acquisition Documents (without giving effect to any amendments
or waivers to or of such documents not approved by the Agents, such approval not
to be unreasonably withheld). The Transactions occurring on or about the
Effective Date shall be consummated in a manner consistent with the sources and
uses set forth on Schedule 4.01(j). The Agents shall be reasonably satisfied
with the terms of the LLC Agreement. The Administrative Agent shall have
received copies of the Pinnacle Acquisition Documents and all certificates,
opinions and other documents delivered thereunder, certified by a Financial
Officer as complete and correct.
(k) The Lenders shall have received (i) audited consolidated balance
sheets of Aurora and the related statements of income, stockholders' equity and
cash flows for Aurora and its subsidiaries as of the end of and for the fiscal
years ended December 31, 2002, December 31, 2001 and December 31, 2000, and the
related notes thereto, accompanied by a true and correct copy of the reports
thereon by PricewaterhouseCoopers LLP, independent public accountants, and (ii)
unaudited consolidated balance sheets, together with related interim unaudited
consolidated statements of income, stockholders' equity and cash flows for
Aurora and its subsidiaries as of and for the fiscal quarters and the portions
of the fiscal year ended March 31, 2003, June 30, 2003 and September 30, 2003,
in each case prepared in accordance with GAAP (which shall be subject to
year-end adjustments and the absence of footnotes, in the case of the statements
referred to in clause (ii)).
(l) The Lenders shall have received the pro forma consolidated
balance sheets of Holdings described in Section 3.04(b), and such pro forma
consolidated balance sheets shall not be materially inconsistent with the
forecasts previously provided to the Lenders. After giving effect to the
Transactions to occur on or about the Effective Date,
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none of Holdings, the Borrower and the Subsidiaries shall have outstanding any
shares of preferred stock or any Indebtedness, other than (i) Indebtedness
incurred under the Loan Documents, (ii) the Initial Senior Subordinated Notes
and (iii) Indebtedness permitted pursuant to Section 6.01(a)(iii). The terms and
conditions of the Indebtedness of Holdings, the Borrower and the Subsidiaries to
remain outstanding immediately after the Effective Date (including terms and
conditions relating to interest rates, fees, amortization, maturity, redemption,
subordination, covenants, events of default and remedies) shall be reasonably
satisfactory to the Lenders. The Transaction Costs shall not exceed $25,000,000,
unless the amount in excess thereof is funded with proceeds from Junior Capital.
(m) The Existing Pinnacle Credit Agreement shall have been
terminated, and all loans, interest, fees and other amounts accrued or owing
thereunder shall have been repaid in full, the commitments thereunder shall have
been terminated and all guarantees and security interests granted in respect
thereof shall have been released, and the terms and conditions of any such
termination and release shall be reasonably satisfactory to the Administrative
Agent. The Administrative Agent shall have received a payoff and release letter
in form and substance reasonably satisfactory to the Administrative Agent from
Deutsche Bank Trust Company Americas, in its capacity as administrative agent
under the Existing Pinnacle Credit Agreement.
(n) The Agents shall have received a solvency letter (addressed to
the Agents and the Lenders and dated the Effective Date), in form and substance
satisfactory to the Agents, from Corporate Valuation Advisors, Inc., confirming
the solvency of Holdings, the Borrower and the Subsidiaries on a consolidated
basis after giving effect to the Transactions and the other transactions
contemplated thereby (which, for the avoidance of doubt, shall exclude the
Aurora Acquisition).
(o) The Lenders shall have received a certificate of a Financial
Officer certifying that Adjusted EBITDA is not less than $63,935,000, resulting
in a ratio of Total Indebtedness (not including any Revolving Loans borrowed on
the Effective Date) to Adjusted EBITDA of no greater than 5.0 to 1.0.
(p) The Borrower shall have received ratings of at least (i) B+,
with a stable outlook, or better by S&P and B1, with a stable outlook, or better
by Xxxxx'x, with respect to its senior secured debt and (ii) B-, with a stable
outlook, or better by S&P and B3, with a stable outlook, or better by Xxxxx'x,
with respect to the Initial Senior Subordinated Notes.
(q) There shall be no litigation, arbitration, administrative
proceeding or consent decree that has had or could reasonably be expected to
have a material adverse effect on (i) the business, operations, performance,
properties, condition (financial or otherwise) or liabilities (including
contingent liabilities) of or applicable to Holdings and its subsidiaries, taken
as a whole, after giving effect to the Transactions occurring on or about the
Effective Date and the other transactions contemplated hereby, or (ii) the
ability of the parties to consummate the Transactions or the other transactions
contemplated hereby.
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(r) The Lenders shall be reasonably satisfied in all respects with
the tax position and the contingent tax and other liabilities of, and with any
tax sharing agreements among, Holdings and its subsidiaries, after giving effect
to the Transactions occurring on or about the Effective Date and the other
transactions contemplated hereby, and with the plans of Holdings with respect
thereto.
(s) The consummation of the Transactions and the other transactions
contemplated hereby shall not (a) violate in any material respect any applicable
law, statute, rule or regulation or (b) conflict with, or result in a prepayment
event, default, event of default or creation of liens under, any material
agreement of Holdings and the Borrower or any of their respective subsidiaries,
after giving effect to the Transactions.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of an Issuing
Bank to issue Letters of Credit hereunder shall not become effective unless each
of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at
or prior to 5:00 p.m., New York City time, on December 31, 2003 (and, in the
event such conditions are not so satisfied or waived, the Commitments shall
terminate at such time).
SECTION 4.02. Aurora Effective Date. The obligations of the Lenders
to make the Delayed Draw Term Loans pursuant to Section 2.01(a)(ii) and to
permit the Revolving Exposures to exceed $65,000,000 and of the Issuing Banks to
permit the LC Exposure to exceed $20,000,000 hereunder shall not become
effective until (x) the Effective Date has occurred and (y) the date on which
each of the following conditions is satisfied (or waived in accordance with
Section 9.02):
(a) The Supermajority Lenders shall be satisfied in all respects
with the terms of the Aurora Acquisition Documents. The Supermajority Lenders
shall be reasonably satisfied with the structure, terms and provisions of the
Initial Plan of Reorganization, and the Required Lenders shall be reasonably
satisfied with any differences that would be materially adverse to the Borrower
or to the Lenders between (i) the Plan of Reorganization in the form confirmed
by the Court or any aspect of the Aurora Acquisition as approved by the Court
and (ii) the Initial Plan of Reorganization.
(b) The Agents shall have received a favorable written opinion
(addressed to the Agents and the Lenders and dated the Aurora Effective Date) of
each of (i) O'Melveny & Xxxxx LLP, counsel for the Borrower, and (ii) other
counsel, in each case, in form and substance reasonably satisfactory to the
Agents. Each of Holdings and the Borrower hereby requests such counsel to
deliver such opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of each Loan Party,
the authorization of the Aurora Acquisition and any other legal matters relating
to the Loan Parties, the Loan Documents or the Aurora Acquisition, all in form
and substance reasonably satisfactory to the Administrative Agent and its
counsel.
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(d) The Administrative Agent shall have received a certificate,
dated the Aurora Effective Date and signed by the President or a Vice President
of the Borrower or a Financial Officer, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.03.
(e) The Agents shall have received all fees and other amounts due
and payable on or prior to the Aurora Effective Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses (including
reasonable fees, charges and disbursements of counsel) required to be reimbursed
or paid by any Loan Party hereunder or under any other Loan Document.
(f) The Collateral and Guarantee Requirement shall have been
satisfied with respect to Aurora and its subsidiaries, and the Administrative
Agent shall have received (i) a completed Perfection Certificate dated the
Aurora Effective Date and signed by an executive officer or Financial Officer,
together with all attachments contemplated thereby, including the results of a
search of the Uniform Commercial Code (or equivalent) filings made with respect
to the Loan Parties in the jurisdictions contemplated by the Perfection
Certificate and copies of the financing statements (or similar documents)
disclosed by such search and evidence reasonably satisfactory to the
Administrative Agent that the Liens indicated by such financing statements (or
similar documents) are permitted by Section 6.02 or have been released and (ii)
evidence that the deposit account control arrangements contemplated by the
Collateral Agreement shall have been established, provided that the
Administrative Agent may, in its reasonable discretion, permit such Collateral
and Guarantee Requirement to be satisfied within a reasonable period after the
Aurora Effective Date.
(g) The Court shall have entered the Order, which shall be
reasonably satisfactory in form and substance to the Agents, confirming the Plan
of Reorganization and approving the terms of all exhibits thereto and (i) the
Order shall be in full force and effect, (ii) the Order shall not be subject to
any stay and there shall not have been entered by the Court any reversal,
modification or vacatur, in whole or in part, of the Order not approved by the
Required Lenders the effect of which would result in a modification to the Plan
of Reorganization that is materially adverse to the Borrower or to the Lenders
and (iii) all the conditions set forth in the Plan of Reorganization to the
effectiveness of the Plan of Reorganization and to the Aurora Effective Date
shall have been satisfied or waived in accordance with the Plan of
Reorganization.
(h) Simultaneously with or prior to the Aurora Effective Date,
Aurora and its debtor subsidiaries shall have emerged from the Chapter 11
proceedings and "substantial consummation" of the Plan of Reorganization (within
the meaning of Section 1101(2) of the Bankruptcy Code) shall have occurred
(without giving effect to any waivers, amendments or other modifications to the
Plan of Reorganization that would be materially adverse to the Borrower or the
Lenders not approved by the Required Lenders).
(i) The Administrative Agent shall have received evidence that the
insurance required by Section 5.07 and the Security Documents is in effect.
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(j) Crunch LLC shall have contributed all net cash proceeds of the
Aurora Equity Contribution to Holdings, and Holdings shall have contributed all
such cash proceeds to the Borrower.
(k) The Administrative Agent shall have received copies of the
Subordinated Debt Documents and other instruments, agreements or documents
relating to the Additional Aurora Securities, certified by a Financial Officer
as complete and correct.
(l) All obligations under or relating to the Existing Aurora Credit
Agreement, the Existing Aurora Receivables Facility, the Existing Aurora Senior
Notes, the Existing Aurora Subordinated Notes and the DIP Facility (other than
customary indemnification obligations) and all liens, guarantees and security
interests granted in respect thereof (including all adequate protection
obligations related thereto) shall have been discharged.
(m) All material governmental and third-party approvals necessary in
connection with the Aurora Acquisition and the other transactions contemplated
thereby (including shareholder approvals, if any) shall have been obtained and
be in full force and effect; all applicable waiting periods (including any
extensions thereof) shall have expired and there shall be no governmental or
judicial action, actual or threatened, that could reasonably be expected to
restrain, prevent or impose materially burdensome conditions on the Aurora
Acquisition or the other transactions contemplated thereby.
(n) The Aurora Merger shall have been consummated or shall be
consummated substantially simultaneously with the funding of Delayed Draw Term
Loans pursuant to Section 2.01(a)(ii) on the Aurora Effective Date in accordance
with applicable law and the Aurora Acquisition Documents (without giving effect
to any amendments or waivers to or of such documents that would be materially
adverse to the Borrower or to the Lenders not approved by the Required Lenders).
The Aurora Acquisition shall be consummated in all material respects in a manner
consistent with the sources and uses set forth on Schedule 4.02(n). The terms of
any equity interests of Crunch LLC issued in respect of the Aurora Equity
Contribution shall be in accordance with the LLC Agreement and any differences
between (a) the terms of the LLC Agreement, as amended on or prior to the Aurora
Effective Date, and (b) the terms of the LLC Agreement on the Pinnacle Effective
Date shall be reasonably satisfactory to the Agents and Crunch LLC. The Aurora
Fees and Expenses shall not exceed $32,400,000 and the Other Aurora Closing
Costs shall not exceed $33,200,000, unless, in each case, the amount in excess
thereof is funded with proceeds from Junior Capital issued by Holdings or
proceeds of Revolving Loans described in Section 2.01(b)(iii). The
Administrative Agent shall have received copies of the Aurora Acquisition
Documents and all certificates, opinions and other documents delivered
thereunder, certified by a Financial Officer as complete and correct.
(o) To the extent not previously received, the Lenders shall have
received audited consolidated balance sheets and related statements of income,
stockholders' equity and cash flows for Aurora and its subsidiaries for (i) the
fiscal years ended
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December 31, 2000, December 31, 2001 and December 31, 2002 and (ii) each fiscal
quarter subsequent to the date of the latest annual financial statements
referred to in clause (i) above and ended at least 45 days prior to the Aurora
Effective Date.
(p) The Lenders shall have received a pro forma consolidated balance
sheet of Holdings and its subsidiaries as of the end of the most recent
twelve-month period ending at least 30 days prior to the Aurora Effective Date,
after giving pro forma effect to the Transactions and the Aurora Acquisition,
and such pro forma consolidated balance sheet shall not be materially and
adversely inconsistent with the forecasts previously provided to the Lenders
unless otherwise approved by the Required Lenders. After giving effect to the
Aurora Acquisition, none of Holdings, the Borrower and the Subsidiaries shall
have outstanding any shares of preferred stock or any Indebtedness other than
preferred stock or Indebtedness permitted pursuant to Section 6.01. The terms
and conditions of the Indebtedness of Holdings and its subsidiaries to remain
outstanding immediately after the Aurora Effective Date (including terms and
conditions relating to interest rates, fees, amortization, maturity, redemption,
subordination, covenants, events of default and remedies) shall be permitted by
this Agreement.
(q) The Lenders shall have received a certificate of a Financial
Officer certifying that after giving pro forma effect to the Transactions and
the Aurora Acquisition, (i) the Leverage Ratio (it being agreed that solely for
purposes of this Section, Average Total Debt shall be deemed to exclude any
Revolving Borrowings made on the Aurora Effective Date in connection with the
Aurora Acquisition, other than any Revolving Borrowings made pursuant to clause
(b)(iii)(A) of Section 2.01 in excess of $7,500,000 (net of cash on hand of
Aurora and its subsidiaries)) as of the end of the most recent twelve-month
period ending at least 30 days prior to the Aurora Effective Date does not
exceed 4.75 to 1.00 and (ii) the Senior Leverage Ratio as of the end of the most
recent twelve-month period ending at least 30 days prior to the Aurora Effective
Date does not exceed 3.00 to 1.00.
(r) The Borrower shall have ratings of at least B+, with a stable
outlook, or better by S&P and B1, with a stable outlook, or better by Xxxxx'x,
with respect to its senior secured debt.
(s) The Required Lenders shall be reasonably satisfied in all
respects with any differences that would be materially adverse to the Borrower
or to the Lenders between (i) the tax position and the contingent tax and other
liabilities of, and with any tax sharing agreements among, Holdings and its
subsidiaries, after giving effect to the Aurora Acquisition and the other
transactions contemplated thereby, and with the plans of Holdings with respect
thereto and (ii) such matters as described in the Information Memorandum or
other information provided to the Lenders by or on behalf of the Borrower,
Aurora or the Sponsors prior to the Effective Date.
The Administrative Agent shall notify the Borrower and the Lenders of the Aurora
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make the Delayed Draw Term
Loans pursuant to Section 2.01(a)(ii) and to permit the Revolving Exposures to
exceed
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$65,000,000 and of the Issuing Banks to permit the LC Exposure to exceed
$20,000,000 hereunder shall not become effective unless each of the foregoing
conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 5:00
p.m., New York City time, on May 24, 2004 (and, in the event such conditions are
not so satisfied or waived, the Commitments relating thereto shall terminate at
such time).
SECTION 4.03. Each Credit Event. The obligation of each Lender to
make a Loan on the occasion of any Borrowing, and of any Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to receipt of the
request therefor in accordance herewith and to the satisfaction of the following
conditions:
(a) The representations and warranties of each Loan Party set forth
in the Loan Documents, (i) to the extent any such representation or warranty is
modified or qualified based on the terms "materially" or "material" or by
reference to the term "Material Adverse Effect", shall be true and correct in
all respects and (ii) to the extent such representation or warranty is not so
modified or qualified, shall be true and correct in all material respects, in
each case, on and as of the date of such Borrowing or the date of issuance,
amendment, renewal or extension of such Letter of Credit (except to the extent
such representations and warranties expressly relate to an earlier date), as
applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by Holdings
and the Borrower on the date thereof as to the matters specified in paragraphs
(a) and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, each of Holdings and the
Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender through the
Administrative Agent:
(a) within 90 days (or 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 of the
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Borrower, a copy of its audited consolidated (and, after the Aurora
Effective Date, consolidating (consisting of consolidated financials
statements of Aurora, Sea Coast Foods, Inc. and its subsidiaries, on the
one hand, and PFC and its subsidiaries, on the other hand)) balance sheet
and related statements of operations, shareholders' equity and cash flows
as of the end of and for such year (provided that such consolidating
balance sheet and related statements may be unaudited), setting forth in
each case in comparative form the figures as of the end of and for the
previous fiscal year, all reported on by PricewaterhouseCoopers LLP or
other independent public accountants of recognized national standing
(without a "going concern" or like qualification or exception and without
any qualification or exception as to the scope of such audit) to the
effect that such consolidated financial statements present fairly in all
material respects the financial condition and results of operations of the
Borrower and the Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied;
(b) within 45 days (or 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 of the Borrower, its
consolidated (and, after the Aurora Effective Date, consolidating
(consisting of consolidated financial statements of Aurora, Sea Coast
Foods, Inc. and its subsidiaries, on the one hand, and PFC and its
subsidiaries, on the other hand)) balance sheet and related statements of
operations, shareholders' equity and cash flows as of the end of and for
such fiscal quarter and the then-elapsed portion of such fiscal year,
setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet,
as of the end of) the previous fiscal year, all certified by a Financial
Officer as presenting fairly in all material respects the financial
condition and results of operations of the Borrower and the Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of footnotes,
provided that the foregoing shall not apply if the Borrower is required to
file periodic reports pursuant to the Securities Exchange Act of 1934, as
amended, and has filed a quarterly report with the SEC, which report shall
be furnished to the Administrative Agent promptly following such filing;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer (i)
certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or proposed
to be taken with respect thereto, (ii) setting forth reasonably detailed
calculations demonstrating whether there has been compliance with Sections
6.12, 6.13 and 6.14, (iii) stating whether any change in GAAP or in the
application thereof, in either case, affecting the Borrower's financial
statements, has occurred since the date of the Borrower's audited
financial statements referred to in Section 3.04 and, if any such change
has occurred, specifying the effect of such change on the financial
statements accompanying such certificate and (iv) providing the
information, if any, required to be provided pursuant to Section 4.05 of
the Collateral Agreement;
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(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during
the course of their examination of such financial statements of any
Default and, if such knowledge has been obtained, describing such Default
(which certificate may be limited to the extent required by accounting
rules or guidelines);
(e) within 45 days after the commencement of each fiscal year of the
Borrower, a detailed consolidated budget for such fiscal year (including a
projected consolidated balance sheet and related statements of projected
operations and cash flows as of the end of and for such fiscal year and
setting forth the assumptions used for purposes of preparing such budget)
and, promptly when available, any significant revisions of such budget;
(f) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental
Authority succeeding to any or all of the functions of the SEC, or with
any national securities exchange, as the case may be;
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of
Holdings, the Borrower or any Subsidiary or any Plan, or compliance with
the terms of any Loan Document, as the Administrative Agent or any Lender
may reasonably request; and
(h) promptly following a request therefor, all documentation and
other information that a Lender reasonably requests in order to comply
with its ongoing obligations under applicable "know your customer" and
anti-money laundering rules and regulations, including the USA Patriot
Act.
SECTION 5.02. Notices of Material Events. Holdings and the Borrower
will furnish to the Administrative Agent and each Lender, through the
Administrative Agent, prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or, to the
knowledge of an executive officer of Holdings, the Borrower or any
Subsidiary or a Financial Officer, affecting Holdings, the Borrower or any
Affiliate thereof that, if adversely determined, could reasonably be
expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event or any fact or circumstance
that gives rise to a reasonable expectation that any ERISA Event will
occur that, in either case, alone or together with any other ERISA Events
that have occurred, could reasonably be expected to result in an
unsatisfied liability of the Borrower
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and the Subsidiaries in an aggregate amount exceeding $5,000,000;
(d) the receipt of any notice from any supplier, seller, vendor or
any agent of any of the foregoing of a notice pursuant to Section 5(c) of
the Perishable Agricultural Commodities Act of 1930, as amended; and
(e) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Information Regarding Collateral. (a) The Borrower
will furnish to the Administrative Agent prompt written notice of any change (i)
in any Loan Party's name, (ii) in the jurisdiction of incorporation or
organization of any Loan Party, (iii) in any office in which any Loan Party
maintains material books or records relating to Collateral owned by it, or (iv)
in any Loan Party's organizational identification number. The Borrower also
agrees to promptly provide to the Administrative Agent certified organizational
documents reflecting any of the changes described in the preceding sentence. The
Borrower agrees not to effect or permit any change referred to in the preceding
sentences unless all filings have been made under the Uniform Commercial Code or
otherwise that are required in order for the Administrative Agent, for the
benefit of the Lenders, to continue at all times following such change to have a
valid, legal and perfected security interest in all the Collateral. The Borrower
also agrees promptly to notify the Administrative Agent if any material portion
of the Collateral owned or held by it is damaged or destroyed.
(b) Each year, at the time of delivery of annual financial
statements with respect to the preceding fiscal year pursuant to clause (a) of
Section 5.01, the Borrower shall deliver to the Administrative Agent a
certificate of a Financial Officer or the chief legal officer of the Borrower
setting forth the information required pursuant to the Perfection Certificate or
confirming that there has been no change in such information (other than
information relating to fair market value and current annual rent of owned or
leased real property set forth on Schedule 2A thereof) since the later of the
date of the Perfection Certificate delivered on the Effective Date and the date
of the most recent certificate delivered pursuant to this Section. Each
certificate delivered pursuant to this Section 5.03(b) shall identify in the
format of Schedule III to the Collateral Agreement all Intellectual Property (as
defined in the Collateral Agreement) of any Loan Party in existence on the date
thereof and not then listed on such Schedule as previously so identified to the
Collateral Agent.
SECTION 5.04. Existence; Conduct of Business. Each of Holdings and
the Borrower will, and will cause each of the Subsidiaries to, do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence and the rights, licenses, permits, privileges, franchises,
patents, copyrights, trademarks
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and trade names material to the conduct of the business of Holdings, the
Borrower and the Subsidiaries, taken as a whole, provided that the foregoing
shall not prohibit any merger, consolidation, liquidation or dissolution
permitted under Section 6.03.
SECTION 5.05. Payment of Obligations. Each of Holdings and the
Borrower will, and will cause each of the Subsidiaries to, pay (i) all material
Taxes and other charges of any Governmental Authority imposed on it or any of
its properties or assets or in respect of any of its franchises, business,
income or property before any material penalty or interest accrues thereon and
(ii) all claims (including claims for labor, services, materials and supplies)
for sums that have become due and payable and that by law have or may become a
Lien (other than a Lien permitted under Section 6.02) upon any of the property
or assets of Holdings, the Borrower or any Subsidiary, prior to the time when
any penalty or fine shall be incurred with respect thereto, except where (a) the
validity or amount thereof is being contested in good faith by appropriate
procedures or proceedings, (b) Holdings, the Borrower or such Subsidiary has set
aside on its books adequate reserves with respect thereto in conformity with
GAAP (or, in the case of any Foreign Subsidiary, generally accepted accounting
principles as in effect from time to time in its jurisdiction of organization),
(c) such contest effectively suspends collection of the contested obligation and
the enforcement of any Lien securing such obligation and (d) the failure to make
payment pending such contest could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 5.06. Maintenance of Properties. Each of Holdings and the
Borrower will, and will cause each of the Subsidiaries to, keep and maintain all
property material to the conduct of the business of Holdings, the Borrower and
the Subsidiaries, taken as a whole, in good working order and condition,
ordinary wear and tear excepted.
SECTION 5.07. Insurance. Each of Holdings and the Borrower will, and
will cause each of the Subsidiaries to, maintain, with financially sound and
reputable insurance companies (a) insurance in such amounts (with no greater
risk retention) and against such risks as are customarily maintained by
companies of established repute engaged in the same or similar businesses
operating in the same or similar locations and (b) all insurance required to be
maintained pursuant to the Security Documents. The Borrower will furnish to the
Lenders, upon the reasonable request of the Administrative Agent, information in
reasonable detail as to the insurance so maintained.
SECTION 5.08. Casualty and Condemnation. The Borrower (a) will
furnish to the Administrative Agent and each Lender, through the Administrative
Agent, prompt written notice of any casualty or other insured damage to any
material portion of the Collateral or the commencement of any action or
proceeding for the taking of any material portion of the Collateral or material
interest therein under power of eminent domain or by condemnation or similar
proceeding and (b) will ensure that the Net Proceeds of any such event (whether
in the form of insurance proceeds, condemnation awards or otherwise) are
collected and applied in accordance with the applicable provisions of the Loan
Documents.
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SECTION 5.09. Books and Records; Inspection and Audit Rights. Each
of Holdings and the Borrower will, and will cause each of the Subsidiaries to,
keep proper books of record and account in which full, true and correct entries
are made of all dealings and transactions in relation to its business and
activities. Each of Holdings and the Borrower will, and will cause each of the
Subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender, upon reasonable prior notice, to visit and inspect its
properties during normal business hours (so long as such visits and inspections
do not disrupt the business and operations of Holdings, the Borrower and the
Subsidiaries), to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and independent
accountants (and the Borrower shall be provided the opportunity to participate
in any such discussions with such independent accountants), all at such
reasonable times and as often as reasonably requested.
SECTION 5.10. Compliance with Laws. Each of Holdings and the
Borrower will, and will cause each of the Subsidiaries to, comply with all laws,
rules, regulations and orders of any Governmental Authority applicable to it,
its operations or its property, including Environmental Laws, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.11. Use of Proceeds and Letters of Credit. The proceeds of
the Term Loans made on the Effective Date, together with the proceeds of the
Equity Contribution and the Initial Senior Subordinated Notes, will be used only
for the payment of (a) amounts payable under the Pinnacle Acquisition Documents
as consideration for the Pinnacle Acquisition and all loans, interest and other
amounts accrued and owing under the Existing Pinnacle Credit Agreement, provided
that the aggregate amount payable under this clause (a) shall not exceed
$485,000,000 (subject to the purchase price adjustments set forth in the Merger
Agreement) and (b) the Transaction Costs. The proceeds of the Delayed Draw Term
Loans made on the Aurora Effective Date, together with the proceeds of the
Aurora Equity Contribution, the Additional Aurora Securities and cash on hand of
Aurora and its subsidiaries, will be used solely to finance the Aurora
Acquisition, pursuant to the terms of the Aurora Acquisition Documents and the
Plan of Reorganization. The proceeds of the Revolving Loans will be used only
for (i) working capital and general corporate purposes, (ii) the payment of
purchase price adjustments set forth in the Merger Agreement, provided that not
more than $25,000,000 in proceeds of Revolving Loans may be used in connection
with the payment of amounts relating to such purchase price adjustments on or
after the Effective Date and (iii) on or about the Aurora Effective Date, in
connection with the Aurora Acquisition to the extent Revolving Loans are
available to be borrowed pursuant to Section 2.01(b)(iii). The proceeds of the
Swingline Loans will be used only for general corporate purposes. No part of the
proceeds of any Loan and no Letter of Credit will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations T, U and X. Letters of Credit will be issued
only for general corporate purposes.
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SECTION 5.12. Additional Subsidiaries. If any additional Subsidiary
is formed or acquired after the Effective Date, the Borrower will, within three
Business Days after such Subsidiary is formed or acquired, notify the
Administrative Agent and the Lenders (through the Administrative Agent) thereof
and cause the Collateral and Guarantee Requirement to be satisfied with respect
to such Subsidiary (if it is a Subsidiary Loan Party) and with respect to any
Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of
any Loan Party (except that, if such Subsidiary is a Foreign Subsidiary, Equity
Interests of such Subsidiary to be pledged pursuant to the Collateral and
Guarantee Requirement may be limited to 65% of the outstanding voting Equity
Interests of such Subsidiary).
SECTION 5.13. Further Assurances. (a) Each of Holdings and the
Borrower will, and will cause each Subsidiary Loan Party to, 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, deeds of trust and other documents),
which may be required under any applicable law, or which the Administrative
Agent or the Required Lenders may reasonably request, to cause the Collateral
and Guarantee Requirement to be and remain satisfied, all at the expense of the
Loan Parties. Holdings and the Borrower also agree to provide to the
Administrative Agent, from time to time upon request by the Administrative
Agent, evidence reasonably satisfactory to the Administrative Agent as to the
perfection and priority of the Liens created or intended to be created by the
Security Documents.
(b) If any material assets (including any material real property or
improvements thereon or any interest therein) are acquired by the Borrower or
any Subsidiary Loan Party after the Effective Date (other than assets
constituting Collateral under the Collateral Agreement that become subject to
the Lien of the Collateral Agreement upon acquisition thereof), the Borrower
will, within five Business Days after such material asset is acquired, notify
the Administrative Agent and the Lenders (through the Administrative Agent)
thereof, and, if requested by the Administrative Agent or the Required Lenders,
the Borrower will cause such assets to be subjected to a Lien securing the
Obligations and will take, and cause the Subsidiary Loan Parties to take, such
actions as shall be necessary or reasonably requested by the Administrative
Agent to grant and perfect such Liens, including actions described in paragraph
(a) of this Section, all at the expense of the Loan Parties.
(c) To the extent required by the Collateral Agreement, each of
Holdings and the Borrower will, and will cause each Subsidiary Loan Party to,
deliver to the Administrative Agent, with respect to each Deposit Account
subject to the provisions of Section 4.04(b) of the Collateral Agreement,
counterparts of one or more deposit account control agreements, substantially in
the form of Exhibit H, relating to such Deposit Accounts.
(d) The Borrower shall deliver, within 10 days after the Effective
Date, an opinion of Morris, Nichols, Arsht & Xxxxxxx, or another law firm
reasonably satisfactory to the Administrative Agent, with respect to the
perfection of the Security Interest (as
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defined in the Collateral Agreement) in the Article 9 Collateral (as defined in
the Collateral Agreement), in form and substance reasonably satisfactory to the
Administrative Agent.
SECTION 5.14. Interest Rate Protection. As promptly as practicable,
and in any event within 180 days after the Effective Date, the Borrower will
enter into, and thereafter for a period of not less than three years will
maintain in effect, one or more Swap Agreements on such terms and with such
parties as shall be reasonably satisfactory to the Administrative Agent, the
effect of which is that at least 40% of the then outstanding Term Loans, the
Initial Senior Subordinated Notes and the Additional Aurora Securities
constituting Indebtedness would bear interest at a fixed rate or the interest
cost in respect of which will be fixed.
SECTION 5.15. End of Fiscal Year. If Holdings and the Borrower
change their and the Subsidiaries' fiscal year end for fiscal reporting
purposes, Holdings or the Borrower shall give immediate written notice of such
proposed change to the Administrative Agent, and may, in each case, change such
fiscal year end to December 31. If Holdings and the Borrower fail to make such
change, Holdings, the Borrower and the Administrative Agent shall, and are
hereby authorized by the Lenders to, make any modifications or adjustments to
this Agreement (including the financial covenants contained in Sections 6.12,
6.13 and 6.14) that are necessary to reflect that the fiscal year end will not
occur on December 31.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, each of Holdings and the
Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Indebtedness; Certain Equity Securities. (a) The
Borrower will not, and will not permit any Subsidiary to, create, incur, assume
or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) in the case of the Borrower, the Initial Senior Subordinated
Notes and extensions, renewals and replacements of any such Initial Senior
Subordinated Notes that do not increase the outstanding principal amount
thereof or result in a maturity date that is prior to the date that is six
months after the Term Loan Maturity Date or require scheduled payments of
principal prior to the date that is six months after the Term Loan
Maturity Date and that do not have terms less
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favorable to the Lenders and the Borrower than the Initial Senior
Subordinated Notes;
(iii) Indebtedness existing on the date hereof (other than the
Initial Senior Subordinated Notes) and set forth in Schedule 6.01 and
extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof or result in an earlier
maturity date;
(iv) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary, provided that (A)
Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or
any Subsidiary Loan Party shall be subject to Section 6.04 and (B)
Indebtedness of the Borrower to any Subsidiary and Indebtedness of any
Subsidiary Loan Party to any Subsidiary that is not a Subsidiary Loan
Party shall be subordinated to the Obligations on terms reasonably
satisfactory to the Administrative Agent (it being understood that the
subordination provisions contained in Exhibits G-2 and G-3 are
satisfactory);
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and
by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary,
provided that (A) the Indebtedness so guaranteed is permitted by this
Section, (B) Guarantees by the Borrower or any Subsidiary Loan Party of
Indebtedness of any Subsidiary that is not a Loan Party shall be subject
to Section 6.04 and (C) the Subordinated Debt shall not be guaranteed by
any Subsidiary that is not a Subsidiary Loan Party, and any such Guarantee
shall be subordinated to the Obligations of the applicable Subsidiary on
the same terms as the Subordinated Debt of the Borrower is subordinated to
its Obligations;
(vi) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction, maintenance or improvement of any
fixed or capital assets, including Capital Lease Obligations, and any
Indebtedness assumed in connection with the acquisition of any such assets
or secured by a Lien on any such assets prior to the acquisition thereof,
and extensions, renewals and replacements of any such Indebtedness,
provided that the aggregate principal amount of Indebtedness permitted by
this clause (vi) shall not exceed (A)(1) prior to the Aurora Effective
Date, $15,000,000 at any time outstanding and (2) on or after the Aurora
Effective Date, $35,000,000 at any time outstanding plus (B) during any
fiscal year, 50% of the amount of Capital Expenditures permitted by
Section 6.14 during such fiscal year;
(vii) (A) Indebtedness of any Person that becomes a Subsidiary after
the date hereof, provided that (1) such Indebtedness exists at the time
such Person becomes a Subsidiary and is not created in contemplation of or
in connection with such Person becoming a Subsidiary and (2) the aggregate
principal amount of Indebtedness permitted by this clause (vii) shall not
exceed $10,000,000 (or, on or after the Aurora Effective Date,
$20,000,000) at any time outstanding and (B) any refinancings, renewals
and replacements of any such Indebtedness pursuant to the
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preceding clause (A) that do not increase the outstanding principal amount
thereof;
(viii) in the case of the Borrower, (A) the Additional Debt
Securities, provided that (1) the proceeds of such Additional Debt
Securities shall be used to finance the Aurora Acquisition and (2) subject
to the final proviso of Section 2.01(b) and Section 2.20, the aggregate
principal amount of Additional Debt Securities permitted by this clause
(viii) shall not exceed $200,000,000 at any time outstanding and (B)
extensions, renewals and replacements of any such Additional Debt
Securities that do not increase the outstanding principal amount thereof
or result in a maturity date prior to the date that is six months after
the Term Loan Maturity Date or require scheduled payments of principal
prior to the date that is six months after the Term Loan Maturity Date and
that do not have terms such that they would fail to qualify as Additional
Debt Securities;
(ix) after the end of the Standstill Period, (A) Permitted
Subordinated Indebtedness, provided that (1) immediately before and
immediately after giving effect to the incurrence of such Permitted
Subordinated Indebtedness, no Default shall have occurred and be
continuing, (2) after giving effect to the incurrence of such Permitted
Subordinated Indebtedness, the Leverage Ratio, on a Pro Forma Basis, as of
the end of the most recently ended period of four fiscal quarters for
which financial statements are available, shall be less than 4.50 to 1.00
and (3) on or prior to the date of each such incurrence, the Borrower
shall deliver a certificate signed by a Financial Officer confirming
compliance with this clause (ix) and (B) extensions, renewals and
replacements of any such Permitted Subordinated Indebtedness that do not
increase the outstanding principal amount thereof or result in a maturity
date prior to the date that is six months after the Term Loan Maturity
Date or require scheduled payments of principal prior to the date that is
six months after the Term Loan Maturity Date and that do not have terms
such that they would fail to qualify as Permitted Subordinated
Indebtedness;
(x) Junior Capital;
(xi) Indebtedness arising from agreements of the Borrower or any
Subsidiary providing for customary indemnification, adjustment of purchase
price or similar obligations, in each case incurred or assumed in
connection with the Pinnacle Acquisition, the Aurora Acquisition, any
Permitted Acquisition or any Disposition permitted by Section 6.05;
(xii) Indebtedness of any Loan Party pursuant to Swap Agreements
permitted by Section 6.07;
(xiii) Indebtedness of any Loan Party permitted under the Plan of
Reorganization and extensions, renewals and replacements of such
Indebtedness that do not increase the outstanding principal amount thereof
or result in an earlier
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maturity date or decrease the average life thereof and that do not have
terms less favorable to the Lenders or the Borrower than such
Indebtedness; and
(xiv) other Indebtedness in an aggregate principal amount not
exceeding $15,000,000 (or, on or after the Aurora Effective Date,
$30,000,000) at any time outstanding, provided that the aggregate
principal amount of Indebtedness of Subsidiaries that are not Loan Parties
permitted by this clause (xiv) shall not exceed $10,000,000 (or, on or
after the Aurora Effective Date, $30,000,000) at any time outstanding.
(b) Holdings will not create, incur, assume or permit to exist any
Indebtedness except (i) Indebtedness created under the Loan Documents, (ii)
Junior Capital, (iii) any Guarantee of the Senior Subordinated Notes or the
Permitted Subordinated Indebtedness, if required by the Subordinated Debt
Documents governing such Senior Subordinated Notes or the Permitted Subordinated
Indebtedness, (iv) Indebtedness to the Borrower to the extent it is permitted
under Section 6.04 and (v) subject to the conditions set forth in Section
6.01(a)(viii), Additional Debt Securities issued by Holdings and extensions,
renewals and replacements thereof.
(c) Neither Holdings nor the Borrower will, nor will they permit any
Subsidiary to, issue any preferred Equity Interests other than, in the case of
Holdings, Qualified Capital Stock.
SECTION 6.02. Liens. Neither Holdings nor the Borrower will, nor
will they permit any Subsidiary to, create, incur, assume or permit to exist any
Lien on any property or asset now owned or hereafter acquired by it, or assign
or sell any income or revenues (including accounts receivable) or rights in
respect of any thereof, except:
(a) Liens created under the Loan Documents;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 6.02, provided
that (i) such Lien shall not apply to any other property or asset of the
Borrower or any Subsidiary (except assets financed by the same financing source
pursuant to the same financing scheme) and (ii) such Lien shall secure only
those obligations which it secures on the date hereof (except as relating to
assets financed by the same financing source pursuant to the same financing
scheme), and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof;
(d) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date hereof
prior to the time such Person becomes a Subsidiary, provided that (i) such Lien
is not created in contemplation of or in connection with such acquisition or
such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not
apply to any other property or assets of the Borrower or any Subsidiary (except
assets financed by the same financing source pursuant to the same
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financing scheme) and (iii) such Lien shall secure only those obligations which
it secures on the date of such acquisition or the date such Person becomes a
Subsidiary (except as relating to assets financed by the same financing source
pursuant to the same financing scheme), as the case may be, and extensions,
renewals and replacements thereof that do not increase the outstanding principal
amount thereof;
(e) Liens on fixed or capital assets acquired, constructed,
maintained or improved by the Borrower or any Subsidiary, provided that (i) such
security interests secure Indebtedness permitted by clause (vi) of Section
6.01(a), (ii) such security interests and the Indebtedness secured thereby are
incurred prior to or within 120 days after such acquisition or the completion of
such construction, maintenance or improvement, (iii) the Indebtedness secured
thereby does not exceed 100% of the cost of acquiring, constructing, maintaining
or improving such fixed or capital assets and (iv) such security interests shall
not apply to any other property or assets of the Borrower or any Subsidiary
(except assets financed by the same financing source pursuant to the same
financing scheme);
(f) Liens that are contractual rights of set-off relating to deposit
accounts in favor of banks and other depositary institutions in the ordinary
course of business;
(g) Liens of a collecting bank arising in the ordinary course of
business under Section 4-208 of the Uniform Commercial Code in effect in the
relevant jurisdiction covering only the items being collected upon;
(h) Liens disclosed on any title insurance policy in respect of a
Mortgaged Property or any Lien of any lessee existing as of the date hereof or
any subsequent lessee reasonably approved by the Administrative Agent;
(i) any interest or title of a lessor under any lease (or of a
licensor under any license) entered into by the Borrower or a Subsidiary and any
Lien arising from precautionary Uniform Commercial Code financing statements (or
equivalent filings, registrations or agreements in foreign jurisdictions)
relating to and covering only assets leased in accordance with any Loan
Document;
(j) Liens arising out of sale and leaseback transactions permitted
by Section 6.06;
(k) Liens on property of a Subsidiary that is not a Loan Party
securing Indebtedness permitted by Section 6.01(a)(xiii) (but only to the extent
such Indebtedness was secured on the Aurora Effective Date) or the proviso to
Section 6.01(a)(xiv);
(l) Liens granted by a Subsidiary that is not a Loan Party in favor
of the Borrower or another Loan Party in respect of Indebtedness owed by such a
Subsidiary;
(m) Liens not otherwise permitted by this Section so long as neither
(i) the aggregate outstanding principal amount of the obligations secured
thereby nor (ii) the aggregate fair market value (determined as of the date such
Lien is incurred) of
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the assets subject thereto exceeds (as to the Borrower and the Subsidiaries)
$2,500,000 (or, on or after the Aurora Effective Date, $7,500,000) at any time
outstanding.
SECTION 6.03. Fundamental Changes. (a) Neither Holdings nor the
Borrower will, nor will they permit any Subsidiary to, merge into or consolidate
with any other Person, or permit any other Person to merge into or consolidate
with it, or liquidate or dissolve, except that (i) any Person may merge into the
Borrower in a transaction in which the surviving entity is a Person organized or
existing under the laws of the United States of America, any State thereof or
the District of Columbia and, if such surviving entity is not the Borrower, such
Person expressly assumes, in writing, all of the obligations of the Borrower
under the Loan Documents, (ii) any Person may merge into any Subsidiary in a
transaction in which the surviving entity is a Subsidiary and, if any party to
such merger is a Subsidiary Loan Party, is or becomes a Subsidiary Loan Party
substantially concurrently with such merger, and (iii) any Subsidiary (other
than a Subsidiary Loan Party) may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is in the best
interests of the Borrower and is not materially disadvantageous to the Lenders,
provided that any such merger involving a Person that is not a wholly owned
Subsidiary immediately prior to such merger shall not be permitted unless also
permitted by Section 6.04.
(b) The Borrower will not, and will not permit any Subsidiary to,
engage to any material extent in any business other than businesses of the type
conducted by the Borrower and the Subsidiaries on the Effective Date and
businesses reasonably related thereto.
(c) Holdings will not engage in any business or activity other than
the ownership of all the outstanding shares of capital stock of the Borrower and
activities incidental thereto. Holdings will not own or acquire any assets
(other than Equity Interests of the Borrower, cash and Permitted Investments) or
incur any liabilities (other than liabilities under the Loan Documents,
liabilities in respect of Guarantees permitted under Section 6.01, other
liabilities permitted under Section 6.01, liabilities imposed by law, including
tax liabilities, and other liabilities incidental to its existence and permitted
business and activities).
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions. Neither Holdings nor the Borrower will, nor will they permit any
Subsidiary to, purchase, hold or acquire (including pursuant to any merger with
any Person that was not a wholly owned Subsidiary prior to such merger) any
Equity Interests in or evidences of indebtedness or other securities (including
any option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, Guarantee any obligations of, or make
or permit to exist any investment or any other interest in, any other Person, or
purchase or otherwise acquire (in one transaction or a series of transactions)
any assets of any other Person constituting a business unit, except:
(a) Permitted Acquisitions;
(b) Permitted Investments;
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(c) investments existing on the date hereof and set forth on
Schedule 6.04 and extensions, renewals, modifications or restatements
thereof that do not increase the amount of such investment;
(d) investments by the Borrower and the Subsidiaries in Equity
Interests in their respective subsidiaries, provided that (i) any such
Equity Interests held by a Loan Party shall be pledged pursuant to the
Collateral Agreement (subject to the limitations applicable to Equity
Interests of a Foreign Subsidiary or a Joint Venture referred to in the
definition of the term "Collateral and Guarantee Requirement") and (ii)
the aggregate amount of investments (including a Permitted Acquisition
deemed to be an investment subject to this Section 6.04(d)(ii)) by Loan
Parties in, and loans and advances by Loan Parties to, and Guarantees by
Loan Parties of Indebtedness of, Subsidiaries that are not Loan Parties
(including all such investments, loans, advances and Guarantees existing
on the Effective Date) shall not exceed $10,000,000 (or, on or after the
Aurora Effective Date, $30,000,000) at any time outstanding;
(e) loans or advances made by the Borrower to any Subsidiary and
made by any Subsidiary to the Borrower or any other Subsidiary, provided
that (i) any such loans and advances made by a Loan Party shall be
evidenced by a promissory note pledged pursuant to the Collateral
Agreement and (ii) the amount of such loans and advances made by Loan
Parties to Subsidiaries that are not Loan Parties shall be subject to the
limitation set forth in clause (d)(ii) above;
(f) investments in, or loans or advances to, Holdings made by the
Borrower in respect of Restricted Payments permitted by Section 6.08(a);
(g) Guarantees constituting Indebtedness permitted by Section 6.01,
provided that the aggregate principal amount of Indebtedness of
Subsidiaries that are not Loan Parties that is Guaranteed by any Loan
Party shall be subject to the limitation set forth in clause (d)(ii)
above;
(h) investments (including Equity Interests, obligations, securities
or other property) received in connection with the bankruptcy or
reorganization of customers and suppliers;
(i) receivables or other trade payables owing to the Borrower or a
Subsidiary if created or acquired in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms,
provided that such trade terms may include such concessionary trade terms
as the Borrower or any such Subsidiary deems reasonable under the
circumstances;
(j) investments consisting of Equity Interests, obligations,
securities or other property received in settlement of delinquent accounts
of and disputes with customers and suppliers in the ordinary course of
business and owing to the Borrower or any Subsidiary or in satisfaction of
judgments;
(k) investments in payroll, travel and similar advances to cover
matters
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that are expected at the time of such advances ultimately to be treated as
expenses for accounting purposes and that are made in the ordinary course
of business;
(l) loans or advances to employees made in the ordinary course of
business (including travel, entertainment and relocation expenses) of the
Borrower or a Subsidiary not exceeding $3,000,000 (or, on or after the
Aurora Effective Date, $5,000,000) in the aggregate outstanding at any one
time;
(m) investments in the form of Swap Agreements permitted under
Section 6.07;
(n) investments of any Person existing at the time such Person
becomes a Subsidiary of the Borrower or consolidates or merges with the
Borrower or any of the Subsidiaries (including in connection with a
Permitted Acquisition or the Aurora Acquisition) so long as such
investments were not made in contemplation of such Person becoming a
Subsidiary or of such merger;
(o) investments received in connection with the Dispositions of
assets permitted under Section 6.05;
(p) investments constituting deposits described in clauses (c) and
(d) of the definition of the term "Permitted Encumbrances";
(q) any repurchase of the Initial Senior Subordinated Notes or
Additional Debt Securities permitted by Section 6.08(b)(iii);
(r) investments made by the Borrower or any Subsidiary financed with
the proceeds of the Retained Mandatory Prepayment Amount not otherwise
applied pursuant to Section 6.08(b)(iii) or to make Capital Expenditures;
(s) investments constituting Capital Expenditures permitted by
Section 6.14, provided that the transaction or transactions constituting
such investment results solely in the making of such Capital Expenditures;
(t) the Aurora Acquisition and any investments of Aurora described
in the Plan of Reorganization;
(u) other investments in an aggregate amount, as valued at the time
each such investment is made, not exceeding $15,000,000 (or, on or after
the Aurora Effective Date, $30,000,000) in the aggregate for all such
investments made from and after the Effective Date plus an amount equal to
any repayments, interest, returns, profits, distributions, income and
similar amounts actually received in cash in respect of such investments
(which amount shall not exceed (x) prior to the Aurora Effective Date,
$15,000,000 and (y) on or after the Aurora Effective Date, $30,000,000);
and
(v) in addition to the investments otherwise permitted by this
Section, any investment by the Borrower or any Subsidiary to the extent it
is financed with the
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proceeds of an issuance of Junior Capital not later than six months after
the receipt of such proceeds by Holdings or the Borrower.
SECTION 6.05. Asset Sales. Neither Holdings nor the Borrower will,
nor will they permit any Subsidiary to, sell, transfer, lease or otherwise
dispose of any asset, including any Equity Interest owned by it, nor will the
Borrower permit any Subsidiary to issue any additional Equity Interest in such
Subsidiary (other than to the Borrower or another Subsidiary in compliance with
Section 6.04), except:
(a) sales, transfers and dispositions of (i) inventory in the
ordinary course of business and (ii) used, obsolete, worn out or surplus
equipment or property in the ordinary course of business;
(b) sales, transfers and dispositions to the Borrower or a
Subsidiary, provided that any such sales, transfers or dispositions
involving a Subsidiary that is not a Loan Party shall be made in
compliance with Section 6.09;
(c) sales, transfers and dispositions of accounts receivable in
connection with the compromise, settlement or collection thereof;
(d) any consignment or similar arrangements for the sale of
inventory in the ordinary course of business;
(e) (i) sales, transfers and dispositions of licenses or sublicenses
of intellectual property and general intangibles and (ii) licenses,
sublicenses, leases or subleases of other property, in the case of both
clauses (i) and (ii), in the ordinary course of business and to the extent
they do not materially interfere with the business of Holdings, the
Borrower and the Subsidiaries;
(f) sales, transfers and dispositions of investments permitted by
clauses (b), (h), (j), (m), (n) and (p) of Section 6.04;
(g) sale and leaseback transactions permitted by Section 6.06;
(h) within 360 days after the consummation of a Permitted
Acquisition or the Aurora Acquisition, the sale, transfer or disposition
of assets acquired in connection with such Permitted Acquisition or the
Aurora Acquisition, as applicable, and not required in the operation of
the business of the Borrower or any of the Subsidiaries;
(i) Dispositions resulting from any casualty or other insured damage
to, or any taking under power of eminent domain or by condemnation or
similar proceeding of, any property or asset of the Borrower or any
Subsidiary;
(j) the Disposition of Open Pit Assets, provided that, prior to the
Aurora Effective Date, the Net Proceeds therefrom shall be applied to the
repayment of Loans in accordance with Section 2.11(c) (without giving
effect to the proviso thereof, unless after giving effect to such
Disposition and application of the
91
proceeds therefrom, no Default has occurred and is continuing and the
Leverage Ratio, on a Pro Forma Basis, as of the end of the most recently
ended quarter for which financial statements are available is less than
5.0 to 1.0);
(k) the Disposition of the Omaha Property; and
(l) sales, transfers and other dispositions of assets (other than
Equity Interests in a Subsidiary unless 100% of the Equity Interests of
such Subsidiary are sold, transferred or otherwise disposed of), including
Asset Swaps, that are not permitted by any other clause of this Section,
provided that the aggregate fair value of all assets sold, transferred or
otherwise disposed of in reliance upon this clause (l) shall not exceed
$10,000,000 (or, on or after the Aurora Effective Date, $20,000,000)
during any fiscal year of the Borrower,
provided that (x) all sales, transfers, leases and other dispositions permitted
hereby (other than those permitted by clauses (a)(ii), (b), (c), (d), (e) and
(i) above and Asset Swaps) shall be made for at least 75% cash consideration
(which cash consideration, (I) for purposes of clause (a)(i), shall be deemed to
include accounts receivable and (II) for all other purposes under this Section
6.05, shall be deemed to include (a) any liabilities of Holdings, the Borrower
or any Subsidiary, as shown on the most recent balance sheet of Holdings, the
Borrower or any Subsidiary (other than liabilities that are by their terms
subordinated to the Obligations) that are assumed by the transferee of such
assets and (b) any securities, notes or other obligations received by Holdings,
the Borrower or any Subsidiary from a transferee that are converted into cash
within 90 days after such transfer, to the extent of such conversion) and (y)
all sales, transfers, leases and other dispositions permitted hereby (other than
those permitted by clauses (b) and (i)) shall be made for fair value.
SECTION 6.06. Sale and Leaseback Transactions. Neither Holdings nor
the Borrower will, nor will they permit any Subsidiary to, enter into any
arrangement, directly or indirectly, whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property
that it intends to use for substantially the same purpose or purposes as the
property sold or transferred, except for (a) any such sale and leaseback of any
fixed or capital assets that is made for at least 75% cash consideration and is
consummated within 120 days after the Borrower or such Subsidiary acquires or
completes the construction of such fixed or capital asset, (b) any such sale and
leaseback that results in a Capital Lease Obligation permitted by Section
6.01(a)(vi) and (c) sale and leasebacks of real property owned as of the
Effective Date by the Borrower and the Subsidiaries (after giving effect to the
Transactions) and, after giving effect to the Aurora Acquisition, real property
owned as of the Aurora Effective Date by Aurora or its subsidiaries, with an
aggregate fair value not to exceed $10,000,000 (or, on or after the Aurora
Effective Date, $20,000,000) during the term of this Agreement (the proceeds of
which sale and leaseback, for the avoidance of doubt, shall be subject to
Section 2.11(c)).
SECTION 6.07. Swap Agreements. Neither Holdings nor the Borrower
will, nor will they permit any Subsidiary to, enter into any Swap Agreement,
except
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(a) Swap Agreements entered into to hedge or mitigate risks to which the
Borrower or any Subsidiary has actual or expected exposure (other than those in
respect of Equity Interests of the Borrower or any Subsidiary) and (b) Swap
Agreements entered into in order to cap, collar or exchange interest rates (from
fixed to floating rates, from one floating rate to another floating rate or
otherwise) with respect to any interest-bearing liability or investment of the
Borrower or any Subsidiary.
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness.
(a) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary
to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except (i) each of the Borrower and Holdings may declare and pay dividends with
respect to its common stock, payable solely in additional shares of its common
stock, and, with respect to its preferred stock, payable solely in additional
shares of such preferred stock or in shares of its common stock, (ii)
Subsidiaries may make Restricted Payments ratably with respect to their capital
stock, membership or partnership interests or other similar Equity Interests,
(iii) the Borrower may make Restricted Payments to the extent necessary to
permit Holdings to, and the Borrower or Holdings may make Restricted Payments,
in respect of the purchase, repurchase, retirement or other acquisition for
value of Equity Interests of Holdings or Crunch LLC owned by employees, former
employees, directors, former directors, consultants or former consultants of
Holdings, the Borrower or any Subsidiaries pursuant to and in accordance with
equity and compensation arrangements, including stock option plans or other
benefit plans, in an aggregate amount equal to (A) $5,000,000 during any fiscal
year (provided that (1) the amount of Restricted Payments permitted to be made
in respect of any fiscal year shall be increased by the unused amount of
Restricted Payments that were permitted to be made during the two immediately
preceding fiscal years and (2) Restricted Payments made pursuant to this clause
(A) in any fiscal year shall be deemed to use, first, the amount for such fiscal
year, and second, any amount carried forward to such fiscal year pursuant to the
preceding clause (1) (it being understood that any amounts not used in any
fiscal year carried forward pursuant to the preceding clause (1) may be carried
forward for two fiscal years and no further)) plus (B) so long as no Default has
occurred and is continuing or would result therefrom, the proceeds of
"key-person" life insurance policies with respect to such Person received by the
Borrower or Holdings, plus (C) amounts contributed by Holdings in exchange for
common equity of the Borrower as a result of sales of Equity Interests to
employees, officers, directors or consultants of Holdings, the Borrower or any
Subsidiary, (iv) so long as no Default has occurred and is continuing or would
result therefrom, the Borrower may make Restricted Payments to the extent
necessary to permit it or Holdings to, and the Borrower or Holdings may make,
payments of or on account of monitoring or management or similar fees payable to
the Permitted Investors or their Affiliates in an aggregate amount in any fiscal
year not in excess of $1,000,000 (plus any reasonable out-of-pocket expenses in
connection therewith), (v) the Borrower may make Restricted Payments to
Holdings, and the Borrower or Holdings may make, at such times and in such
amounts, Restricted Payments (A) not exceeding $1,500,000 during any fiscal
year, as shall be necessary to permit Holdings and its parent companies to
discharge their respective corporate overhead (including franchise taxes and
director fees) and permitted liabilities, (B) as shall be necessary to pay any
taxes that are due and payable by Holdings as part of a
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consolidated group that includes the Borrower and (C) as shall be necessary to
make any scheduled cash interest and principal payments as and when due in
respect of Additional Debt Securities issued by Holdings as permitted under
Section 6.01(b)(v), if any, and (vi) concurrently with the issuance of Qualified
Capital Stock of Holdings, Holdings may redeem, purchase or retire any Equity
Interests of Holdings using the proceeds of, or convert or exchange any Equity
Interests of Holdings for, such Qualified Capital Stock of Holdings.
(b) Neither Holdings nor the Borrower will, nor will they permit any
Subsidiary to, make or agree to pay or make, directly or indirectly, any payment
or other distribution (whether in cash, securities or other property) of or in
respect of principal of or interest on any Subordinated Debt, or any payment or
other distribution (whether in cash, securities or other property), including
any sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancelation or termination of any Subordinated Debt,
except:
(i) payment of regularly scheduled interest and principal payments
as and when due, other than payments in respect of Subordinated Debt
prohibited by the subordination provisions thereof;
(ii) refinancings of Subordinated Debt to the extent permitted by
Section 6.01;
(iii) after the end of the Standstill Period, redemption, repurchase
or retirement of the Initial Senior Subordinated Notes or Additional Debt
Securities, including any premium (if any) and accrued and unpaid interest
thereon to the date of such redemption or repurchase, in an aggregate
amount equal to (A) $15,000,000 (or, on or after the Aurora Effective
Date, $30,000,000), plus (B) the Retained Mandatory Prepayment Amount not
otherwise applied pursuant to Section 6.04(r) or to make Capital
Expenditures, provided that (1) immediately before and on a Pro Forma
Basis after giving effect to such redemption, repurchase or retirement,
(x) no Default shall have occurred and be continuing and (y) the Average
Revolving Availability shall not be less than (i) prior to the Aurora
Effective Date, $30,000,000 and (ii) on or after the Aurora Effective
Date, $45,000,000 and (2) after giving effect to such redemption,
repurchase or retirement, the Senior Leverage Ratio, on a Pro Forma Basis,
shall be less than 2.00 to 1.00 (it being understood and agreed that any
Initial Senior Subordinated Notes and Additional Debt Securities redeemed
or repurchased pursuant to this clause (iii) shall immediately be canceled
by the Borrower).
SECTION 6.09. Transactions with Affiliates. Except as set forth on
Schedule 6.09, neither Holdings nor the Borrower will, nor will they permit any
Subsidiary to, sell, lease or otherwise transfer any property or assets to, or
purchase, lease or otherwise acquire any property or assets from, or otherwise
engage in any other transactions with, any of its Affiliates, except (a)
transactions that (i) are entered into pursuant to the reasonable requirements
of its business, (ii) do not involve Holdings (except to the extent the
involvement with Holdings complies with this Section 6.09) and
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(iii) are at prices and on terms and conditions not less favorable to the
Borrower or such Subsidiary than would be reasonably obtained on an arm's-length
basis from unrelated third parties, (b) transactions between or among the
Borrower and the Subsidiary Loan Parties not involving any other Affiliate
(except to the extent the involvement with such Affiliate complies with this
Section 6.09), (c) any investment permitted by Sections 6.04(d)(ii), (e), (f) or
(g) (to the extent such transactions are by and among the Borrower and a
Subsidiary Loan Party), (d) any Restricted Payment permitted by Section 6.08,
(e) loans or advances to employees permitted under Section 6.04, (f) the
provision by Persons who may be deemed Affiliates of Holdings or the Borrower
(other than JPMP, JWC and their respective Controlled Affiliates) of financial
advisory, financing, underwriting or placement services or any other investment
banking, banking or similar services (including in connection with the
amendment, modification or supplement of this Agreement), so long as such
transactions are approved by a majority of the disinterested members of the
board of directors of such Person, (g) any contribution to the capital of the
Borrower by Holdings or any purchase of Equity Interests of the Borrower by
Holdings, (h) any contribution to the capital of Holdings by Crunch LLC or any
purchase of Equity Interests of Holdings by Crunch LLC and (i) issuances of
Equity Interests to Affiliates, officers, directors or employees of the Borrower
that are approved by a majority of the disinterested members of the board of
directors of the applicable Person in good faith.
SECTION 6.10. Restrictive Agreements. Neither Holdings nor the
Borrower will, nor will they permit any Subsidiary to, directly or indirectly,
enter into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of Holdings,
the Borrower or any Subsidiary to create, incur or permit to exist any Lien upon
any of its property or assets, or (b) the ability of any Subsidiary to pay
dividends or other distributions with respect to any shares of its capital stock
or to make or repay loans or advances to the Borrower or any other Subsidiary or
to Guarantee Indebtedness of the Borrower or any other Subsidiary, provided that
(i) the foregoing shall not apply to restrictions and conditions imposed by (A)
law, (B) any Loan Document, Subordinated Debt Document or other instrument or
agreement governing Indebtedness permitted pursuant to Section 6.01(a)(vii) (but
only to the extent such restrictions or conditions are imposed only on the
Person who becomes a Subsidiary concurrently with the incurrence of such
Indebtedness) and (C) any instrument or agreement governing any refinancing,
renewal or replacement of such Subordinated Debt or Indebtedness permitted
pursuant to Section 6.01(a)(vii) to the extent such agreements or instruments
are not materially more restrictive, taken as a whole, with respect to the
matters described in the preceding clauses (a) and (b) than those contained in
the Subordinated Debt Documents or other instrument or agreement governing
Indebtedness permitted pursuant to Section 6.01(a)(vii) existing on the
Effective Date, (ii) the foregoing shall not apply to restrictions and
conditions existing on or about the date hereof and identified on Schedule 6.10
(but shall apply to any extension or renewal of, or any amendment or
modification expanding the scope of, any such restriction or condition), (iii)
the foregoing shall not apply to customary restrictions and conditions contained
in agreements relating to the sale of a Subsidiary or other assets pending such
sale, provided such restrictions and conditions apply only to the Subsidiary or
other assets that is to be sold and such sale is permitted hereunder, (iv)
clause (a) of the
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foregoing shall not apply to restrictions or conditions imposed by any agreement
relating to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the property or assets securing such
Indebtedness (or, to the extent permitted by Section 6.02(e), to other assets
financed by the same financing source pursuant to the same financing scheme) and
(v) clause (a) of the foregoing shall not apply to customary provisions in
leases and ordinary course licenses.
SECTION 6.11. Amendment of Material Documents. Neither Holdings nor
the Borrower will, nor will they permit any Subsidiary to, amend, modify or
waive any of its rights under (a) any Subordinated Debt Document, except for
such amendments, modifications or waivers that could not be reasonably expected
to effect any change adverse to the interests and rights of the Administrative
Agent or the Lenders under any Loan Document, (b) its certificate of
incorporation, by-laws or other organizational documents (other than to change
its name), (c) the Pinnacle Acquisition Documents (including the LLC Agreement)
and (d) the Aurora Acquisition Documents, except, in the case of clauses (b),
(c) and (d), for such amendments, modifications or waivers that could not be
reasonably expected to effect any change materially adverse to the interests and
rights of the Administrative Agent or the Lenders under any Loan Document and
except, in the case of clause (c), any amendments of the LLC Agreement approved
by the Agents pursuant to Section 4.02(n).
SECTION 6.12. Interest Expense Coverage Ratio. The Borrower will not
permit the ratio of (a) Consolidated EBITDA to (b) Consolidated Cash Interest
Expense, in each case in respect of any period of four consecutive fiscal
quarters, (i) prior to the Aurora Effective Date, ending on or about any date
set forth in Table 1 below, and (ii) on or after the Aurora Effective Date,
ending on or about any date set forth in Table 2 below, to be less than the
ratio set forth below opposite such period, provided that to the extent the
Aurora Acquisition, any Permitted Acquisition, Disposition outside the ordinary
course of business or discontinuation of operations has occurred during the
relevant period of four consecutive fiscal quarters, such ratio shall be
determined for such period on a Pro Forma Basis for such occurrences:
TABLE 1 (PRIOR TO THE AURORA EFFECTIVE DATE)
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Period Ratio
------ -----
April 30, 2004 2.25 to 1:00
July 31, 2004 2.25 to 1:00
October 31, 2004 2.25 to 1:00
January 31, 2005 2.25 to 1:00
April 30, 2005 2.50 to 1:00
July 31, 2005 2.50 to 1:00
October 31, 2005 2.50 to 1:00
January 31, 2006 2.50 to 1:00
April 30, 2006 2.50 to 1:00
July 31, 2006 2.50 to 1:00
October 31, 2006 2.75 to 1.00
January 31, 2007 2.75 to 1.00
April 30, 2007 2.75 to 1.00
July 31, 2007 3.00 to 1.00
October 31, 2007 3.00 to 1.00
January 31, 2008 3.00 to 1.00
April 30, 2008 3.25 to 1.00
July 31, 2008 3.25 to 1.00
October 31, 2008 3.25 to 1.00
January 31, 2009 and thereafter 3.50 to 1.00
TABLE 2 (ON OR AFTER THE AURORA EFFECTIVE DATE)
Period Ratio
------ -----
July 31, 2004 2.25 to 1.00
October 31, 2004 2.25 to 1.00
December 31, 2004 2.25 to 1.00
March 31, 2005 2.25 to 1.00
June 30, 2005 2.25 to 1.00
September 30, 2005 2.50 to 1.00
December 31, 2005 2.50 to 1.00
March 31, 2006 2.50 to 1.00
June 30, 2006 2.50 to 1.00
September 30, 2006 2.50 to 1.00
December 31, 2006 2.50 to 1.00
March 31, 2007 2.50 to 1.00
June 30, 2007 2.50 to 1.00
September 30, 2007 2.50 to 1.00
December 31, 2007 2.50 to 1.00
March 31, 2008 2.75 to 1.00
June 30, 2008 2.75 to 1.00
September 30, 2008 2.75 to 1.00
December 31, 2008 2.75 to 1.00
March 31, 2009 and thereafter 3.00 to 1.00
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SECTION 6.13. Leverage Ratio. The Borrower will not permit the
Leverage Ratio as of the last day of any fiscal quarter (a) prior to the Aurora
Effective Date, ending on or about any date set forth in Table 1 below, and (b)
on or after the Aurora Effective Date, ending on or about any date set forth in
Table 2 below, to exceed the ratio set forth opposite such period:
TABLE 1 (PRIOR TO THE AURORA EFFECTIVE DATE)
Period Ratio
------ -----
April 30, 2004 5.75 to 1.00
July 31, 2004 5.75 to 1.00
October 31, 2004 5.50 to 1.00
January 31, 2005 5.50 to 1.00
April 30, 2005 5.25 to 1.00
July 31, 2005 5.25 to 1.00
October 31, 2005 5.00 to 1.00
January 31, 2006 4.75 to 1.00
April 30, 2006 4.75 to 1.00
July 31, 2006 4.75 to 1.00
October 31, 2006 4.50 to 1.00
January 31, 2007 4.50 to 1.00
April 30, 2007 4.25 to 1.00
July 31, 2007 4.25 to 1.00
October 31, 2007 4.25 to 1.00
January 31, 2008 4.25 to 1.00
April 30, 2008 and thereafter 4.00 to 1.00
TABLE 2 (ON OR AFTER THE AURORA EFFECTIVE DATE)
Period Ratio
------ -----
July 31, 2004 5.75 to 1.00
October 31, 2004 5.75 to 1.00
December 31, 2004 5.75 to 1.00
March 31, 2005 5.75 to 1.00
June 30, 2005 5.50 to 1.00
September 30, 2005 5.25 to 1.00
December 31, 2005 5.00 to 1.00
March 31, 2006 5.00 to 1.00
June 30, 2006 5.00 to 1.00
September 30, 2006 4.75 to 1.00
December 31, 2006 4.75 to 1.00
March 31, 2007 4.50 to 1.00
June 30, 2007 4.50 to 1.00
September 30, 2007 4.25 to 1.00
December 31, 2007 4.25 to 1.00
March 31, 2008 and thereafter 4.00 to 1.00
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SECTION 6.14. Maximum Capital Expenditures. (a) The Borrower will
not, nor will it permit any Subsidiary to, incur or make any Capital
Expenditures during any fiscal year (i) prior to the Aurora Effective Date, in
an amount exceeding $12,500,000 per annum and (ii) on or after the Aurora
Effective Date, in an amount exceeding $30,000,000 per annum. In addition to the
foregoing, the Borrower may incur or make Capital Expenditures relating to plant
consolidations in an aggregate amount not exceeding $7,500,000 during the term
of this Agreement.
(b) The amount of Capital Expenditures permitted to be made in
respect of any fiscal year shall be increased by the unused amount of Capital
Expenditures that were permitted to be made during the immediately preceding
fiscal year pursuant to Section 6.14(a). Capital Expenditures in any fiscal year
shall be deemed to use, first, any amount carried forward to such fiscal year
pursuant to this Section 6.14(b), and second, the amount for such fiscal year
set forth in Section 6.14(a).
(c) The amount of Capital Expenditures permitted to be made in
respect of any fiscal year shall be increased, after the consummation of any
Permitted Acquisition, in an amount equal to 110% of the average annual amount
of capital expenditures made by the Person or business so acquired, as shown in
the financial statements of such Person or business, during the two fiscal years
preceding such acquisition.
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default. If any of the following events
("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement or any other Loan Document,
when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or on
behalf of Holdings, the Borrower or any Subsidiary in or in connection
with any Loan Document or any amendment or modification thereof or waiver
thereunder, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with any Loan Document or
any amendment or modification thereof or waiver thereunder, shall prove to
have been incorrect (i) to the extent
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such representation or warranty is modified or qualified based on, the
terms "materially" or "material" or by reference to the term "Material
Adverse Effect", in any respect and (ii) to the extent such representation
or warranty is not so modified or qualified, in any material respect, in
each case when made or deemed made;
(d) Holdings or the Borrower shall fail to observe or perform any
covenant, obligation or agreement contained in Section 5.02, 5.03, 5.04
(with respect to the existence of Holdings and the Borrower) or 5.11 or in
Article VI;
(e) any Loan Party shall fail to observe or perform any covenant,
obligation or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof
from the Administrative Agent or any Lender to the Borrower;
(f) Holdings, the Borrower or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in
respect of any Material Indebtedness, when and as the same shall become
due and payable (after giving effect to any applicable grace period);
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) 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, provided that this clause (g)
shall not apply to secured Indebtedness that becomes due as a result of
the sale or transfer of the property or assets not prohibited hereunder
securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of Holdings, the Borrower or any Subsidiary or its
debts, or of a substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Holdings, the
Borrower or any Subsidiary or for a substantial part of its assets, and,
in any such case, 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 liquidation,
reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or
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petition described in clause (h) of this Article, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Holdings, the Borrower
or any Subsidiary or for a substantial part of its assets, (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) take any formal action for the purpose of effecting any
of the foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit in
writing its inability or fail generally to pay its debts as they become
due;
(k) to the extent not paid or covered by insurance provided by an
insurance company with ratings reasonably satisfactory to the
Administrative Agent that has not denied coverage, one or more judgments
for the payment of money in an aggregate amount in excess of $5,000,000
(or, on or after the Aurora Effective Date, $15,000,000) shall be rendered
against the Borrower, any Subsidiary or any combination thereof and the
same shall remain undischarged for a period of 30 consecutive days during
which execution shall not be effectively stayed, or any action shall be
legally taken by a judgment creditor to attach or levy upon any assets of
Holdings, the Borrower or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the reasonable
opinion of the Required Lenders, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result in a
Material Adverse Effect;
(m) (i) any Loan Document shall for any reason be asserted by any
Loan Party not to be a legal, valid and binding obligation of any party
thereto; (ii) any Lien purported to be created under any Security Document
shall cease to be, or shall be asserted by any Loan Party not to be, a
valid and perfected Lien on any Collateral with a fair value of greater
than $5,000,000 with the priority required by the applicable Security
Document, except (A) as a result of the sale or other disposition of the
applicable Collateral in a transaction permitted under the Loan Documents
or (B) as a result of the Administrative Agent's failure to maintain
possession of any stock certificates, promissory notes or other
instruments delivered to it under the Collateral Agreement or (iii) the
Guarantees pursuant to the Security Documents by Holdings and the
Subsidiary Loan Parties shall cease to be in full force and effect (other
than in accordance with the terms of the Loan Documents) or shall be
asserted by Holdings or any Subsidiary Loan Party not to be in effect or
not to be legal, valid and binding obligations;
(n) the Senior Subordinated Notes or the Guarantees thereof shall
cease, for any reason, to be validly subordinated to the Obligations or
the obligations of the Subsidiary Guarantors under the Collateral
Agreement, as the case may be, as provided in the Senior Subordinated
Notes Indenture or other indenture governing the Additional Senior
Subordinated Notes, or any Loan Party, the trustee in respect of the
Initial Senior Subordinated Notes or the Additional Senior
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Subordinated Notes or the holders of at least 25% in aggregate principal
amount of the Senior Subordinated Notes (or, if the Additional Senior
Subordinated Notes are not issued pursuant to the Senior Subordinated
Notes Indenture, of either the Initial Senior Subordinated Notes or the
Additional Senior Subordinated Notes) shall so assert; or
(o) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
SECTION 7.02. Exclusion of Immaterial Subsidiaries. Solely for the
purposes of determining whether a Default has occurred under clause (h) or (i)
of Section 7.01, any reference in any such clause to any "Subsidiary" shall be
deemed not to include any Subsidiary affected by any event or circumstance
referred to in any such clause that did not, as of the last day of the fiscal
quarter of the Borrower most recently ended, have assets with a value in excess
of 5.0% of the total consolidated assets of the Borrower and the Subsidiaries as
of such date, provided that if it is necessary to exclude more than one
Subsidiary from clause (h) or (i) of Section 7.01 pursuant to this Section in
order to avoid a Default thereunder, all excluded Subsidiaries shall be
considered to be a single consolidated Subsidiary for purposes of determining
whether the condition specified above is satisfied.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Banks hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative
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Agent by the terms of the Loan Documents, together with such actions and powers
as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
bank and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth in the 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 has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing as directed by
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 9.02), and (c)
except as expressly set forth in the Loan Documents, the Administrative Agent
shall not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to Holdings, the Borrower or any of the
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02) or in the absence of its own gross negligence or
wilful misconduct. The Administrative Agent shall not be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by Holdings, the Borrower or a Lender, and 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 any Loan Document, (ii) the contents of any certificate, report
or other document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere in any Loan Document, other than to confirm receipt of
items expressly required to be delivered to the 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 believed by it to be
genuine and to have been signed or sent 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 be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel for the Borrower), independent
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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 perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time upon 30 days' notice to the Lenders, the Issuing Banks,
Holdings and the Borrower. Upon any such resignation, the Required Lenders shall
have the right to appoint a successor, which successor shall be approved by
Holdings and the Borrower in writing, such approval not to be unreasonably
withheld. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders and the Issuing Banks,
appoint a successor Administrative Agent which shall be a bank with an office in
New York, New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower
and such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished hereunder
or thereunder.
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ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone, 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 telecopy, as follows:
(i) if to the Borrower, to it at Xxx Xxx Xxxxxxxxxx Xxxx, Xxxxxxxx
Xxxxx, Xxx Xxxxxx 00000, Attention of General Counsel (Telecopy No. (973)
541-6691);
(ii) if to the Administrative Agent, to Deutsche Bank Trust Company
Americas, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xx.
Xxxxxxx Xxxxxxx (Telecopy No. (000) 000-0000);
(iii) if to an Issuing Bank, to it at its address (or facsimile
number set forth in its Administrative Questionnaire (unless such Issuing
Bank has specified another address or facsimile number by notice to the
Borrower and the Administrative Agent));
(iv) if to a Swingline Lender, at its address (or facsimile number
set forth in its Administrative Questionnaire (unless such Swingline
Lender has specified another address or facsimile number by notice to the
Borrower and the Administrative Agent)); and
(v) if to any other Agent or Lender, to it at its address (or
telecopy number) set forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent, provided that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. 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) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the Administrative
Agent. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, any Issuing Bank or any Lender in exercising any right or
power hereunder or under any other 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
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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, the Issuing Banks 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 any Loan Document or consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or any
Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as provided in Section 2.20 with respect to an
Incremental Facility Amendment, neither this Agreement nor any other Loan
Document nor any provision hereof or thereof may be waived, amended or modified
except, in the case of this Agreement, pursuant to an agreement or agreements in
writing entered into by Holdings, the Borrower and the Required Lenders or, in
the case of any other Loan Document, pursuant to an agreement or agreements in
writing entered into by the Administrative Agent and the Loan Party or Loan
Parties that are parties thereto, in each case with the consent of the Required
Lenders, provided that no such agreement shall (i) increase the Commitment of
any Lender without the written consent of such Lender, (ii) reduce the principal
amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or
reduce any fees payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the maturity of any Loan, or any scheduled date
of payment of the principal amount of any Term Loan under Section 2.10, or the
required date of reimbursement of any LC Disbursement, or any date for the
payment of any interest or fees payable hereunder, or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date of expiration
of any Commitment, without the written consent of each Lender affected thereby,
(iv) (A) change Section 2.18(b) or (c) in a manner that would alter the pro rata
sharing of payments required thereby, without the consent of each Lender or (B)
change the last sentence of Section 2.08(c) in a manner that would alter the pro
rata reduction of the Commitments thereby, without the written consent of each
Lender affected thereby, (v) change any of the provisions of this Section or the
percentage set forth in the definition of the term "Required Lenders" or any
other provision of any Loan Document specifying the number or percentage of
Lenders (or Lenders of any Class) required to waive, amend or modify any rights
thereunder or make any determination or grant any consent thereunder, without
the written consent of each Lender (or each Lender of such Class, as the case
may be), (vi) release any Subsidiary Loan Party from its Guarantee under the
Collateral Agreement (except as expressly provided in the Collateral Agreement),
or limit its liability in respect of such Guarantee, without the written consent
of each Lender, (vii) release all or substantially all of the Collateral (except
as expressly provided in the Collateral Agreement) from the Liens of the
Security Documents, without the written consent of each Lender, (viii) change
any provisions of any Loan Document in a manner that by its terms adversely
affects the rights in respect of payments due to Lenders holding Loans of any
Class differently than those holding Loans of any other Class, without the
written consent of Lenders holding a
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majority in interest of the outstanding Loans and unused Commitments of each
adversely affected Class, (ix) change any provision of Section 2.11(c) or
2.11(d) or the definition of the term "Prepayment Event", (A) without the
written consent of Term Loan Lenders holding a majority in interest of the
outstanding Term Loans and unused Commitments in respect of Term Loans, in a
manner that by its terms adversely affects the rights in respect of mandatory
prepayments due to the Term Loan Lenders or (B) without the written consent of
the Revolving Lenders holding a majority in interest of the outstanding
Revolving Loans and unused Commitments in respect of Revolving Loans, in a
manner that by its terms adversely affects the rights in respect of mandatory
prepayments due to the Revolving Lenders or (x) change the rights of the Term
Loan Lenders to decline mandatory prepayments as provided in Section 2.11,
without the written consent of Term Loan Lenders holding a majority of the
outstanding Term Loans, and provided further that (A) no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent, any Issuing Bank or any Swingline Lender without the prior written
consent of the Administrative Agent, such Issuing Bank or such Swingline Lender,
as the case may be, and (B) any waiver, amendment or modification of this
Agreement that by its terms affects the rights or duties under this Agreement of
the Revolving Lenders (but not the Term Loan Lenders) or the Term Loan Lenders
(but not the Revolving Lenders) may be effected by an agreement or agreements in
writing entered into by Holdings, the Borrower and the requisite percentage in
interest of the affected Class of Lenders that would be required to consent
thereto under this Section if such Class of Lenders were the only Class of
Lenders hereunder at the time (it being agreed that any extension of the
Revolving Maturity Date does not affect the rights or duties of the Term Loan
Lenders under this Agreement). Notwithstanding the foregoing, any provision of
this Agreement may be amended by an agreement in writing entered into by
Holdings, the Borrower, the Required Lenders and the Administrative Agent (and,
if their rights or obligations are affected thereby, the Issuing Banks and the
Swingline Lenders) if (i) by the terms of such agreement the Commitment of each
Lender not consenting to the amendment provided for therein shall terminate upon
the effectiveness of such amendment and (ii) at the time such amendment becomes
effective, each Lender not consenting thereto receives payment in full of the
principal of and interest accrued on each Loan made by it and all other amounts
owing to it or accrued for its account (except for contingent indemnities and
cost and expense reimbursement obligations to the extent not made) under this
Agreement. In connection with any proposed amendment, modification, waiver or
termination (a "Proposed Change") requiring the consent of all affected Lenders,
if the consent of the Required Lenders to such Proposed Change is obtained, but
the consent to such Proposed Change of other Lenders whose consent is required
is not obtained (any such Lender whose consent is not obtained as described in
this Section 9.02(b) being referred to as a "Non-Consenting Lender"), then, so
long as the Lender that is acting as the Administrative Agent is not a
Non-Consenting Lender, at the Borrower's request, any assignee that is
reasonably acceptable to the Administrative Agent shall have the right, with the
Administrative Agent's consent, to purchase from such Non-Consenting Lender, and
such Non-Consenting Lender agrees that it shall, upon the Borrower's request,
sell and assign to such assignee, at no expense to such Non-Consenting Lender,
all the Commitments, Term Loans and Revolving Exposure of such Non-Consenting
Lender for an amount equal to the principal balance of all Term Loans
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and Revolving Loans (and funded participations in Swingline Loans and
unreimbursed LC Disbursements) held by such Non-Consenting Lender and all
accrued interest and fees with respect thereto through the date of sale, such
purchase and sale to be consummated pursuant to an executed Assignment and
Assumption in accordance with Section 9.04(b). Notwithstanding the foregoing,
any amendment of any provision of Section 4.02, or any waiver or consent in
respect thereto, may be effected by an agreement in writing entered into by
Holdings, the Borrower and the Required Lenders, provided that clauses (a), (q)
or (r) of Section 4.02, or any waiver or consent in respect thereto, may only be
effected by an agreement in writing entered into by Holdings, the Borrower and
the Supermajority Lenders.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the Agents and
their respective Affiliates (including reasonable expenses incurred in
connection with due diligence), including the reasonable fees, charges and
disbursements of counsel for the Agents, in connection with the syndication of
the credit facilities provided for herein, the preparation and administration of
the Loan Documents or any amendments, modifications or waivers of the provisions
thereof (whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by any Issuing
Bank in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all reasonable
out-of-pocket expenses incurred by the Agents, any Issuing Bank or any Lender,
including the fees, charges and disbursements of any counsel for the Agents, any
Issuing Bank or any Lender, in connection with the enforcement or protection of
its rights in connection with the Loan Documents, including its rights under
this Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including all such reasonable out-of-pocket expenses incurred during
any workout, restructuring or negotiations in respect of such Loans or Letters
of Credit.
(b) The Borrower shall indemnify the Agents, each Issuing Bank and
each Lender, and each Related Party of any of the foregoing Persons (each such
Person being called an "Indemnitee") against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including the reasonable fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of any Loan
Document or any other agreement or instrument contemplated hereby, the
performance by the parties to the Loan Documents of their respective obligations
thereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by an Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or Release of Hazardous Materials
on or from any Mortgaged Property or any other property currently or formerly
owned or operated by the Borrower or any of the Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of the
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other
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theory and regardless of whether any Indemnitee is a party thereto, provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final judgment to have
resulted from the gross negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to either Agent, any Issuing Bank or either Swingline Lender
under paragraph (a) or (b) of this Section, each Lender severally agrees to pay
to the applicable Agent, Issuing Bank or Swingline Lender, as the case may be,
such Lender's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the applicable Agent, Issuing Bank or Swingline Lender in its capacity
as such. For purposes hereof, a Lender's "pro rata share" shall be determined
based upon its share of the sum of the total Revolving Exposures, outstanding
Term Loans and unused Commitments at the time.
(d) To the extent permitted by applicable law, neither Holdings nor
the Borrower shall assert, and each hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of Credit
or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later
than three Business Days after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of an Issuing Bank that issues any Letter of Credit), 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
such 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. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of any Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Agents, any Issuing Bank and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or any portion of its
Commitment or the Loans at the
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time owing to it), with the prior written consent (such consent not to be
unreasonably withheld or delayed) of:
(A) the Borrower, provided that no consent of the Borrower shall be
required for an assignment to a Lender, an Affiliate of a Lender, an
Approved Fund (as defined below) or, if an Event of Default under clause
(a), (b), (h) or (i) of Article VII has occurred and is continuing, any
other assignee;
(B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment of (1) any
Commitment to an assignee that is a Lender with a Commitment of the same
Class immediately prior to giving effect to such assignment or (2) any
Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(C) in the case of an assignment of all or a portion of a Revolving
Commitment or any Lender's obligations in respect of its LC Exposure, each
Issuing Bank and each Swingline Lender.
(ii) Assignments shall be subject to the following conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of
a Lender or an Approved Fund or an assignment of the entire remaining
amount of the assigning Lender's Commitment, the amount of the Commitment
of the assigning Lender subject to each such assignment (determined as of
the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $5,000,000
(or, in the case of the Term Loans, $1,000,000) unless each of the
Borrower and the Administrative Agent otherwise consent (such consent not
to be unreasonably withheld or delayed), provided that (1) no such consent
of the Borrower shall be required if an Event of Default has --------
occurred and is continuing and (2) contemporaneous assignments to two or
more Approved Funds of a single Lender pursuant to the same Assignment and
Assumption shall be treated as a single assignment for purposes of this
clause (A);
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement, provided that this clause shall not be construed to
prohibit assignment of a proportionate part of all the assigning Lender's
rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500 (with only one such fee payable
in connection with contemporaneous assignments pursuant to the same
Assignment and Assumption to or by two or more Approved Funds of a single
Lender); and
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
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For purposes of this Section 9.04(b), the terms "Approved Fund" and
"CLO" have the following meanings:
"Approved Fund" means (a) a CLO and (b) with respect to any Lender
that is a fund which invests in bank loans and similar extensions of credit, any
other fund that invests in bank loans and similar extensions of credit and is
managed by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.
"CLO" means any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise investing
in bank loans and similar extensions of credit in the ordinary course of its
business and is administered or managed by a Lender or an Affiliate of such
Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning 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 9.03). Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
Section 9.04 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in
accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans and LC Disbursements owing to, each
Lender pursuant to the terms hereof from time to time (the "Register").
The entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent, the Issuing Banks 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, any Issuing Bank and any Lender, at any reasonable time and
from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), 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
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this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register.
No assignment shall be effective for purposes of this Agreement unless it
has been recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower, the
Administrative Agent, any Issuing Bank or any Swingline Lender, 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, the Issuing Banks and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement, provided
that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (c)(ii) of this Section, 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. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 9.08 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 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 that would
be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 2.17 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 2.17(e) as though it
were a Lender.
(d) Any Lender may at any time pledge, assign or grant a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge, assignment or grant to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge, assignment or grant of a security interest, provided that no such
pledge, assignment or grant of a security interest shall release a Lender from
any of its obligations hereunder or substitute any such pledgee, assignee or
grantee for such Lender as a party hereto.
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SECTION 9.05. Survival. All covenants, agreements, representations
and warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, any Issuing
Bank or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, 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 is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates 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 obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the
113
Borrower now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The applicable Lender
shall notify the Borrower and the Administrative Agent of such set-off or
application, provided that any failure to give or any delay in giving such
notice shall not affect the validity of any such set-off or application under
this Section 9.08. The rights of each Lender under this Section are in addition
to other rights and remedies (including other rights of setoff) which such
Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each of Holdings and the Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to any Loan Document, 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 or any other Loan Document shall
affect any right that the Administrative Agent, any Issuing Bank or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
or any other Loan Document against Holdings, the Borrower or their respective
properties in the courts of any jurisdiction.
(c) Each of Holdings and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any other Loan Document in any court referred to in paragraph (b) of this
Section. 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.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.10. 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 ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE
114
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). 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 BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. 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 shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent, the
Issuing Banks and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the
Borrower or (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to
the Administrative Agent, any Issuing Bank or any Lender on a nonconfidential
basis from a source other than the Borrower, provided that such source is not
actually known by such disclosing party to be bound by an agreement containing
provisions substantially the same as those contained in this Section. For the
purposes of this Section, the term "Information" means all information received
from Holdings or the Borrower relating to Holdings or the Borrower or its
business, other than any such information that is available to the
Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis
prior to disclosure by Holdings or the Borrower, provided that, in the case of
information received from Holdings or the Borrower after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information. Notwithstanding anything herein to the contrary, any
party to this Agreement (and each
115
employee, representative, or other agent of any party to this Agreement) may
disclose to any and all Persons, without limitation of any kind, the tax
treatment and tax structure of the transactions contemplated by this Agreement,
and all materials of any kind (including opinions or other tax analyses) related
to such tax treatment and tax structure, provided that this sentence shall not
permit any Person to disclose the name of, or other information that would
identify, any party to such transactions or to disclose confidential commercial
information regarding such transactions.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") that may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.14. Press Releases and Public Offering Materials. Each of
Holdings and the Borrower shall, and shall cause the Subsidiaries to, if any of
Holdings, the Borrower or the Subsidiaries, as applicable, proposes to issue any
press releases or other public disclosure, including any prospectus, proxy
statement or other materials filed with any Governmental Authority relating to
any public offering of any securities of Holdings, the Borrower or any
Subsidiary, using the name of any Agent, give such Agent two Business Days'
prior written notice, indicating how such Agent's name will be used, and shall
not issue such press release or other public disclosure without the consent of
such Agent (such consent not to be unreasonably withheld or delayed), unless
required to do so under law and, then, in any event, Holdings or the Borrower
shall consult with such Agent prior to issuing such press release or public
disclosure. Notwithstanding the foregoing, any Agent shall be deemed to have
consented to the usage of its name if it fails to object to such usage within
two Business Days after the delivery of the aforementioned written notice.
116
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
CRUNCH HOLDING CORP.,
by /S/ XXXXXXXX XXXXX
--------------------
Name: Xxxxxxxx Xxxxx
PINNACLE FOODS HOLDING CORPORATION,
by /S/ N. XXXXXXX XXXX
--------------------
Name: N. Xxxxxxx Xxxx
117
DEUTSCHE BANK TRUST COMPANY
AMERICAS, individually and as
Administrative Agent,
by /S/ XXXXXXX XXXXXXX
--------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
118
GENERAL ELECTRIC CAPITAL
CORPORATION, individually and as
Syndication Agent,
by /S/ XXXXX [ILLEGIBLE]
---------------------------
Name: Xxxxx [illegible]
Title: Vice President
119
JPMORGAN CHASE BANK, individually
and as Co-Documentation Agent,
by /S/ XXXXXX XXXXXXXXX
---------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
000
XXXXXXXX XXXXX XXXXXXX, INC,
individually and as Co-Documentation
Agent,
by /S/ XXXXXX XXXXXXXX
----------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
121
CANADIAN IMPERIAL BANK OF
COMMERCE, as Co-Documentation Agent,
by /S/ XXXXXX XXXXXXX
-----------------------------
Name: Xxxxxx Xxxxxxx
Title: Executive Director
122
CIBC INC.,
by /S/ XXXXXX XXXXXXX
-------------------------------
Name: Xxxxxx Xxxxxxx
Title: Executive Director
123
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK INTERNATIONAL", NEW
YORK BRANCH, as lender,
by /S/ XXXXXXX X'XXXXXX
--------------------------
Name: Xxxxxxx X'Xxxxxx
Title: Vice President
by /S/ XXXXX XXXXXXX
-----------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Director
Exhibit I to the
Guarantee and
Collateral Agreement
SUPPLEMENT NO. __ dated as of [-], to the Guarantee and
Collateral Agreement (the "Collateral Agreement") dated as of
November 25, 2003, among CRUNCH HOLDING CORP., a Delaware
corporation ("Holdings"), PINNACLE FOODS HOLDING CORPORATION,
a Delaware corporation (the "Borrower"), each subsidiary of
the Borrower listed on Schedule I thereto (each such
subsidiary individually a "Subsidiary Guarantor" and
collectively, the "Subsidiary Guarantors"; the Subsidiary
Guarantors, Holdings and the Borrower are referred to
collectively herein as the "Grantors") and DEUTSCHE BANK TRUST
COMPANY AMERICAS ("DBTCA"), as Collateral Agent (in such
capacity, the "Collateral Agent").
A. Reference is made to the Credit Agreement dated as of November
25, 2003 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Holdings, the Borrower, the lenders from time to time
party thereto and, DBTCA, as Administrative Agent, General Electric Capital
Corporation, as Syndication Agent, and JPMorgan Chase Bank, Citicorp North
America, Inc. and Canadian Imperial Bank of Commerce, as Co-Documentation
Agents.
B. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement and the
Collateral Agreement referred to therein.
C. The Grantors have entered into the Collateral Agreement in order
to induce the Lenders to make Loans and the Issuing Banks to issue Letters of
Credit. Section 7.14 of Collateral Agreement provides that additional
Subsidiaries may become Subsidiary Parties under the Collateral Agreement by
execution and delivery of an instrument in the form of this Supplement. The
undersigned Subsidiary (the "New Subsidiary") is executing this Supplement in
accordance with the requirements of the Credit Agreement to become a Subsidiary
Party under the Collateral Agreement in order to induce the Lenders to make
additional Loans and the Issuing Banks to issue additional Letters of Credit and
as consideration for Loans previously made and Letters of Credit previously
issued.
Accordingly, the Collateral Agent and the New Subsidiary agree as
follows:
SECTION 1. In accordance with Section 7.14 of the Collateral
Agreement, the New Subsidiary by its signature below becomes a Subsidiary Party
(and accordingly, becomes a Guarantor and a Grantor), Grantor and Guarantor
under the Collateral Agreement with the same force and effect as if originally
named therein as a Subsidiary Party and the New Subsidiary hereby (a) agrees to
all the terms and provisions of the Collateral Agreement applicable to it as a
Subsidiary Party, Grantor and Guarantor
2
thereunder and (b) represents and warrants that the representations and
warranties made by it as a Grantor and Guarantor thereunder are true and correct
on and as of the date hereof. In furtherance of the foregoing, the New
Subsidiary, as security for the payment and performance in full of the
Obligations, (a) does hereby create and grant to the Collateral Agent, its
successors and assigns, for the benefit of the Secured Parties, their successors
and assigns, a security interest in and lien on all of the New Subsidiary's
right, title and interest in and to the Collateral of the New Subsidiary and (b)
guarantee the Obligations set forth in Section 2 of the Collateral Agreement.
Each reference to a "Guarantor" or "Grantor" in the Collateral Agreement shall
be deemed to include the New Subsidiary. The Collateral Agreement is hereby
incorporated herein by reference.
SECTION 2. The New Subsidiary represents and warrants to the
Collateral Agent and the other Secured Parties that this Supplement has been
duly authorized, executed and delivered by it and constitutes its legal, valid
and binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Collateral
Agent shall have received a counterpart of this Supplement that bears the
signature of the New Subsidiary and the Collateral Agent has executed a
counterpart hereof. Delivery of an executed signature page to this Supplement by
facsimile transmission shall be as effective as delivery of a manually signed
counterpart of this Supplement.
SECTION 4. The New Subsidiary hereby represents and warrants that
(a) set forth on Schedule I attached hereto is a true and correct schedule of
the location of any and all Collateral of the New Subsidiary and (b) set forth
under its signature hereto, is the true and correct legal name of the New
Subsidiary, its jurisdiction of formation and the location of its chief
executive office.
SECTION 5. Except as expressly supplemented hereby, the Collateral
Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in
this Supplement should be held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein and in the Collateral Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties hereto 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.
3
SECTION 8. All communications and notices hereunder shall be in
writing and given as provided in Section 7.01 of the Collateral Agreement.
SECTION 9. The New Subsidiary agrees to reimburse the Collateral
Agent for its reasonable out-of-pocket expenses in connection with this
Supplement, including the reasonable fees, other charges and disbursements of
counsel for the Collateral Agent.
IN WITNESS WHEREOF, the New Subsidiary and the Collateral Agent have
duly executed this Supplement to the Collateral Agreement as of the day and year
first above written.
[NAME OF NEW SUBSIDIARY],
by
--------------------------------------
Name:
Title:
Legal Name:
Jurisdiction of Formation:
Location of Chief Executive office:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS COLLATERAL AGENT
by
--------------------------------------
Name:
Title:
Sechedule I
to the Supplement No __ to the
Guarantee and
Collateral Agreement
LOCATION OF COLLATERAL
Description Location
----------- --------
EQUITY INTERESTS
Number and
Number of Registered Class of Percentage
Issuer Certificate Owner Equity Interests of Equity Interests
------ ----------- ----- ---------------- -------------------
DEBT SECURITIES
Principal
Issuer Amount Date of Note Maturity Date
------ ------ ------------ -------------
INTELLECTUAL PROPERTY
