Exhibit 4.4
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$635,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
among
RIVERWOOD INTERNATIONAL CORPORATION
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO
BANKERS TRUST COMPANY
as syndication agent
and
THE CHASE MANHATTAN BANK
as administrative agent
Dated as of August 10, 2001
X.X. XXXXXX SECURITIES INC.
and
DEUTSCHE BANC ALEX. XXXXX INC.
as joint lead arrangers
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TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS............................................................................................1
1.1. Defined Terms...................................................................................1
1.2. Other Definitional Provisions..................................................................29
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.......................................................................29
2.1. Revolving Credit Commitments...................................................................29
2.2. Procedure for Revolving Credit Borrowing.......................................................30
2.3. Termination or Reduction of Revolving Credit Commitments.......................................31
2.4. Swing Line Commitments.........................................................................31
2.5. Term Loans.....................................................................................33
2.6. Amortization of Term Loans.....................................................................34
2.7. Procedure for Term Loan Borrowing..............................................................34
2.8. Repayment of Loans.............................................................................35
SECTION 3. LETTERS OF CREDIT.....................................................................................35
3.1. L/C Commitment.................................................................................35
3.2. Procedure for Issuance of Letters of Credit....................................................36
3.3. Fees, Commissions and Other Charges............................................................37
3.4. L/C Participations.............................................................................37
3.5. Reimbursement Obligation of the Borrower.......................................................38
3.6. Obligations Absolute...........................................................................39
3.7. Letter of Credit Payments......................................................................39
3.8. Application....................................................................................40
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT..........................................40
4.1. Interest Rates and Payment Dates...............................................................40
4.2. Conversion and Continuation Options............................................................40
4.3. Minimum Amounts of Sets........................................................................41
4.4. Optional and Mandatory Prepayments.............................................................41
4.5. Commitment Fees; Administrative Agent's Fee; Other Fees........................................44
4.6. Computation of Interest and Fees...............................................................44
4.7. Inability to Determine Interest Rate...........................................................45
4.8. Pro Rata Treatment and Payments................................................................46
4.9. Illegality.....................................................................................48
4.10. Requirements of Law............................................................................48
4.11. Taxes..........................................................................................50
4.12. Indemnity......................................................................................52
4.13. Certain Rules Relating to the Payment of Additional Amounts....................................53
SECTION 5. REPRESENTATIONS AND WARRANTIES........................................................................55
5.1. Financial Condition............................................................................55
i
5.2. No Change; Solvent.............................................................................56
5.3. Corporate Existence; Compliance with Law.......................................................56
5.4. Corporate Power; Authorization; Enforceable Obligations........................................56
5.5. No Legal Bar...................................................................................57
5.6. No Material Litigation.........................................................................57
5.7. No Default.....................................................................................57
5.8. Ownership of Property; Liens...................................................................57
5.9. Intellectual Property..........................................................................58
5.10. No Burdensome Restrictions.....................................................................58
5.11. Taxes..........................................................................................58
5.12. Federal Regulations............................................................................58
5.13. ERISA..........................................................................................59
5.14. Collateral.....................................................................................59
5.15. Investment Company Act; Other Regulations......................................................60
5.16. Subsidiaries...................................................................................60
5.17. Purpose of Loans...............................................................................60
5.18. Environmental Matters..........................................................................60
5.19. No Material Misstatements......................................................................61
5.20. Labor Matters..................................................................................62
5.21. Lockbox Accounts...............................................................................62
SECTION 6. CONDITIONS PRECEDENT..................................................................................62
6.1. Conditions to Initial Extension of Credit......................................................62
6.2. Conditions to Each Other Extension of Credit...................................................65
SECTION 7. AFFIRMATIVE COVENANTS.................................................................................66
7.1. Financial Statements...........................................................................66
7.2. Certificates; Other Information................................................................67
7.3. Payment of Obligations.........................................................................68
7.4. Conduct of Business and Maintenance of Existence...............................................68
7.5. Maintenance of Property; Insurance.............................................................68
7.6. Inspection of Property; Books and Records; Discussions.........................................68
7.7. Notices........................................................................................69
7.8. Environmental Laws.............................................................................70
7.9. After-Acquired Real Property and Fixtures......................................................71
SECTION 8. NEGATIVE COVENANTS....................................................................................73
8.1. Financial Condition Covenants..................................................................74
8.2. Limitation on Indebtedness.....................................................................74
8.3. Limitation on Liens............................................................................77
8.4. Limitation on Guarantee Obligations............................................................79
8.5. Limitation on Fundamental Changes..............................................................81
8.6. Limitation on Sale of Assets...................................................................82
8.7. Limitation on Dividends........................................................................83
8.8. Limitation on Capital Expenditures.............................................................84
8.9. Limitation on Investments, Loans and Advances..................................................84
8.10. Limitations on Certain Acquisitions............................................................87
ii
8.11. Limitation on Transactions with Affiliates.....................................................87
8.12. Limitation on Sale and Leaseback Transactions..................................................88
8.13. Limitations on Dispositions of Collateral......................................................89
8.14. Limitation on Optional Payments and Modifications of Debt Instruments and Other Documents......89
8.15. Limitation on Changes in Fiscal Year...........................................................90
8.16. Limitation on Negative Pledge Clauses..........................................................90
8.17. Limitation on Lines of Business................................................................91
8.18. Establishment and Maintenance of Lockbox Accounts..............................................91
8.19. Limitations on Currency and Commodity Hedging Transactions.....................................92
SECTION 9. EVENTS OF DEFAULT.....................................................................................92
SECTION 10. THE ADMINISTRATIVE AGENT AND THE OTHER REPRESENTATIVES...............................................96
10.1. Appointment....................................................................................96
10.2. Delegation of Duties...........................................................................96
10.3. Exculpatory Provisions.........................................................................97
10.4. Reliance by Administrative Agent...............................................................97
10.5. Notice of Default..............................................................................98
10.6. Acknowledgements and Representations by Lenders................................................98
10.7. Indemnification................................................................................98
10.8. Administrative Agent and Other Representatives in Their Individual Capacity....................99
10.9. Successor Administrative Agent.................................................................99
10.10. Syndication Agent.............................................................................100
10.11. Swing Line Lender.............................................................................100
SECTION 11. MISCELLANEOUS.......................................................................................100
11.1. Amendments and Waivers........................................................................100
11.2. Notices.......................................................................................102
11.3. No Waiver; Cumulative Remedies................................................................103
11.4. Survival of Representations and Warranties....................................................103
11.5. Payment of Expenses and Taxes.................................................................103
11.6. Successors and Assigns; Participations and Assignments........................................105
11.7. Adjustments; Set-off..........................................................................108
11.8. Judgment .....................................................................................109
11.9. Counterparts..................................................................................110
11.10. Severability..................................................................................110
11.11. Integration...................................................................................110
11.12. GOVERNING LAW.................................................................................110
11.13. Submission To Jurisdiction; Waivers...........................................................110
11.14. Acknowledgements..............................................................................111
11.15. WAIVER OF JURY TRIAL..........................................................................111
11.16. Confidentiality...............................................................................111
11.17. Effect of Agreement...........................................................................112
iii
SCHEDULES
A Commitments and Addresses
B Permitted Holders
C Indicative Terms of Permitted Receivables Transactions
D Existing Lockbox Agreements, Lockbox Banks and Lockbox Accounts
E Existing Mortgages
5.2(a) Material Adverse Effect Disclosure
5.4 Consents Required
5.6 Litigation
5.8 Real Property
5.9 Intellectual Property Claims
5.14 Filing Jurisdictions and Lien Searches
5.16 Subsidiaries
8.2(g) Permitted Indebtedness
8.3(j) Permitted Liens
8.4(a) Permitted Guarantee Obligations
8.6(i) Permitted Asset Sales
8.9(c) Permitted Investments
8.11(v) Permitted Transactions with Affiliates
iv
EXHIBITS
A-1 Form of Revolving Credit Note
A-2 Form of Tranche A Term Note
A-3 Form of Swing Line Note
B Form of Guarantee and Collateral Agreement
C Form of Mortgage Amendment
D-1 Form of Opinion of Debevoise & Xxxxxxxx,
Special Counsel to the Loan Parties
D-2 Form of Opinion of Xxxxxx X. Xxxxxxx, Xx.,
Counsel to the Loan Parties
D-3 Form of Opinion of Xxxxxxxx, Xxxxxx & Finger,
Special Delaware Counsel to the Loan Parties
E Form of U.S. Tax Compliance Certificate
F Form of Assignment and Acceptance
G Form of Swing Line Loan Participation Certificate
H Form of Borrowing Certificate
I Form of Landlord Waiver
J Form of Closing Certificate
v
AMENDED AND RESTATED
CREDIT AGREEMENT, dated as of August 10, 2001,
among RIVERWOOD INTERNATIONAL CORPORATION, a Delaware corporation (the
"BORROWER"), the several banks and other financial institutions from time to
time parties to this Agreement (the "LENDERS"), BANKERS TRUST COMPANY, a
Delaware corporation, as Syndication Agent and THE CHASE MANHATTAN BANK
("CHASE"), as administrative agent for the Lenders hereunder (in such capacity,
the "ADMINISTRATIVE AGENT").
The parties hereto hereby agree as follows:
WHEREAS, the Borrower is a wholly-owned subsidiary of RIC Holding,
Inc., a Delaware corporation ("RIC HOLDING"), which is in turn a wholly-owned
subsidiary of Riverwood Holding, Inc., a Delaware corporation ("HOLDING");
WHEREAS, the Borrower desires to amend and restate the
credit
agreement dated as of March 20, 1996, as amended (as so amended prior to the
date hereof, the "EXISTING
CREDIT AGREEMENT"), among the Borrower, the Foreign
Subsidiary Borrowers (as defined therein), the several banks and other financial
institutions from time to time parties thereto and Chase, as administrative
agent, in accordance with the terms and conditions set forth in this Agreement;
and
WHEREAS, all the obligations of the Borrower hereunder will be
secured by among other things, (i) a perfected lien on and security interest in
certain collateral described in the Security Documents, including without
limitation, a pledge of all the issued and outstanding Capital Stock of the
Borrower and each of the other direct or indirect Domestic Subsidiaries of the
Borrower and 65% of the issued and outstanding Capital Stock of each of the
direct Foreign Subsidiaries of the Borrower and its Domestic Subsidiaries and
(ii) unconditional guarantees by each of the Guarantors;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1. DEFINED TERMS. As used in this Agreement, the following terms shall
have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the Prime
Rate in effect on such day, (b) the Base CD Rate in effect on such day
plus 1% and (c) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. For purposes hereof: "PRIME RATE" shall mean the rate of
interest per annum publicly announced from time to time by Chase as its
prime rate in effect at its principal office in
New York City (the Prime
Rate not being intended to be the lowest rate of interest charged by Chase
in connection with extensions of credit to debtors); "BASE CD RATE" shall
mean the sum of (a) the product of (i) the Three-Month Secondary CD Rate
and (ii) a fraction, the numerator of which is one and the denominator of
which is one minus the C/D Reserve Percentage and (b) the C/D Assessment
Rate; "THREE-MONTH SECONDARY CD RATE" shall mean, for any day, the
secondary market rate for three-month certificates of deposit reported as
being in effect
on such day (or, if such day shall not be a Business Day, the next
preceding Business Day) by the Board of Governors of the Federal Reserve
System (the "BOARD") through the public information telephone line of the
Federal Reserve Bank of
New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day), or, if such rate
shall not be so reported on such day or such next preceding Business Day,
the average of the secondary market quotations for three-month
certificates of deposit of major money center banks in
New York City
received at approximately 10:00 A.M.,
New York City time, on such day (or,
if such day shall not be a Business Day, on the next preceding Business
Day) by the Administrative Agent from three
New York City negotiable
certificate of deposit dealers of recognized standing selected by it; and
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, the weighted
average of the rates on overnight federal funds transactions with members
of the Federal Reserve System arranged by federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank
of
New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it. Any change in the ABR due
to a change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate shall be effective as of the opening of
business on the effective day of such change in the Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective Rate,
respectively.
"ABR LOANS": Loans the rate of interest applicable to which is
based upon the ABR.
"ACCELERATION": as defined in subsection 9(e).
"ACCOUNTS": as defined in the Uniform Commercial Code as in
effect in the State of
New York from time to time; and, with respect to
the Borrower and its Domestic Subsidiaries, all such Accounts of such
Persons, whether now existing or existing in the future, including,
without limitation, (i) all accounts receivable of such Person (whether or
not specifically listed on schedules furnished to the Administrative
Agent), including, without limitation, all accounts created by or arising
from all of such Person's sales of goods or rendition of services made
under any of its trade names, or through any of its divisions, (ii) all
unpaid rights of such Person (including rescission, replevin, reclamation
and stopping in transit) relating to the foregoing or arising therefrom,
(iii) all rights to any goods represented by any of the foregoing,
including, without limitation, returned or repossessed goods, (iv) all
reserves and credit balances held by such Person with respect to any such
accounts receivable of any Obligors, (v) all letters of credit, guarantees
or collateral for any of the foregoing and (vi) all insurance policies or
rights relating to any of the foregoing.
"ADJUSTMENT DATE": each date on or after December 31, 2001
that is the second Business Day following receipt by the Lenders of both
(i) the financial statements required to be delivered pursuant to
subsection 7.1(a) or 7.1(b), as applicable, for the
most recently completed fiscal period and (ii) the related compliance
certificate required to be delivered pursuant to subsection 7.2(b) with
respect to such fiscal period.
"ADMINISTRATIVE AGENT": as defined in the Preamble hereto.
"AFFILIATE": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or indirectly,
either to (a) vote 20% or more of the securities having ordinary voting
power for the election of directors of such Person or (b) direct or cause
the direction of the management and policies of such Person, whether by
contract or otherwise.
"AGGREGATE OUTSTANDING REVOLVING CREDIT": as to any Revolving
Credit Lender at any time, an amount equal to the sum of (a) the aggregate
principal amount of all Revolving Credit Loans made by such Revolving
Credit Lender then outstanding, (b) such Revolving Credit Lender's
Revolving Credit Commitment Percentage of the L/C Obligations then
outstanding and (c) such Revolving Credit Lender's Revolving Credit
Commitment Percentage of the Swing Line Loans then outstanding.
"AGREEMENT": this
Credit Agreement, as amended, supplemented,
waived or otherwise modified from time to time.
"APPLICABLE MARGIN": the rate per annum determined as follows:
During the period from the Closing Date until the first Adjustment Date,
the Applicable Margin in respect of Revolving Credit Loans and Term Loans
shall equal (i) with respect to ABR Loans, 1.75% per annum and (ii) with
respect to Eurodollar Loans, 2.75% per annum. Such Applicable Margin will
be adjusted on each Adjustment Date to the applicable rate per annum set
forth under the heading "Applicable Margin for ABR Loans" or "Applicable
Margin for Eurodollar Loans" on the applicable Pricing Grid which
corresponds to the Consolidated Leverage Ratio determined from the
financial statements and compliance certificate relating to the end of the
fiscal quarter immediately preceding such Adjustment Date and if there is
no applicable rate set forth under such heading which corresponds to the
Consolidated Leverage Ratio determined from such financial statements and
compliance certificate, the Applicable Margin in respect of Revolving
Credit Loans and Term Loans, shall equal (i) with respect to ABR Loans,
1.75% per annum and (ii) with respect to Eurodollar Loans, 2.75% per
annum; PROVIDED that in the event that the financial statements required
to be delivered pursuant to subsection 7.1(a) or 7.1(b), as applicable,
and the related compliance certificate required to be delivered pursuant
to subsection 7.2(b), are not delivered when due, then
(a) if such financial statements and certificate are
delivered after the date such financial statements and certificate
were required to be delivered (without giving effect to any
applicable cure period) and the Applicable Margin increases from
that previously in effect as a result of the delivery of such
financial
statements, then the Applicable Margin in respect of Revolving
Credit Loans and Term Loans during the period from the date upon
which such financial statements were required to be delivered
(without giving effect to any applicable cure period) until the date
upon which they actually are delivered shall, except as otherwise
provided in clause (c) below, be the Applicable Margin as so
increased;
(b) if such financial statements and certificate are
delivered after the date such financial statements and certificate
were required to be delivered and the Applicable Margin decreases
from that previously in effect as a result of the delivery of such
financial statements, then such decrease in the Applicable Margin
shall not become applicable until the date upon which the financial
statements and certificate actually are delivered; and
(c) if such financial statements and certificate are not
delivered prior to the expiration of the applicable cure period,
then, effective upon such expiration, for the period from the date
upon which such financial statements and certificate were required
to be delivered (after the expiration of the applicable cure period)
until two Business Days following the date upon which they actually
are delivered, the Applicable Margin in respect of Revolving Credit
Loans and Term Loans shall be 1.75% per annum, in the case of ABR
Loans, and 2.75% per annum, in the case of Eurodollar Loans (it
being understood that the foregoing shall not limit the rights of
the Administrative Agent and the Lenders set forth in Section 9).
"APPLICATION": an application, in such form as the Issuing
Lender may specify from time to time, requesting the Issuing Lender to
open a Letter of Credit.
"ASSET SALE": any sale, issuance, conveyance, transfer, lease
or other disposition (including, without limitation, through a Sale and
Leaseback Transaction) (a "DISPOSITION") by the Borrower or any of its
Subsidiaries, in one or a series of related transactions, of any real or
personal, tangible or intangible, property (including, without limitation,
Capital Stock) of the Borrower or such Subsidiary to any Person (other
than to the Borrower or any of its Wholly Owned Subsidiaries).
"ASSIGNEE": as defined in subsection 11.6(c).
"ATTRIBUTABLE DEBT": in connection with a Sale and Lease-Back
Transaction, the present value (discounted in accordance with GAAP at the
interest rate implied in the lease or, if no such interest rate is
implied, the weighted average interest rate on the Borrower's long term
indebtedness for borrowed money) of the obligations of the lessee for
rental payments during the term of the lease.
"AVAILABLE REVOLVING CREDIT COMMITMENT": as to any Revolving
Credit Lender at any time, an amount equal to the excess, if any, of (a)
the amount of such Revolving Credit Lender's Revolving Credit Commitment
at such time OVER (b) the sum
of (i) the aggregate unpaid principal amount at such time of all Revolving
Credit Loans made by such Revolving Credit Lender, (ii) an amount equal to
such Revolving Credit Lender's Revolving Credit Commitment Percentage of
the aggregate unpaid principal amount at such time of all Swing Line
Loans, provided that for purposes of calculating Available Revolving
Credit Commitments pursuant to subsection 4.5(a) such amount shall be
zero, and (iii) an amount equal to such Revolving Credit Lender's
Revolving Credit Commitment Percentage of the outstanding L/C Obligations
at such time; collectively, as to all the Lenders, the "AVAILABLE
REVOLVING CREDIT COMMITMENTS".
"BASE AMOUNT": the lesser of (a) the "Base Amount" as defined
in the 1996 Senior Note Documents, (b) the "Base Amount" as defined in the
1996 Senior Subordinated Note Documents, (c) the amount of Indebtedness
(as defined in the 1997 Senior Note Documents) permitted to be incurred
under the Senior Secured
Credit Agreement (as defined in the 1997 Senior
Note Documents) pursuant to Section 4.03(b)(i) of the 1997 Senior Note
Documents and (d) and the amount of Indebtedness (as defined in the 2001
Senior Note Documents) permitted to be incurred under the Senior Secured
Credit Agreement (as defined in the 2001 Senior Note Documents) pursuant
to Section 4.03(b)(i) of the 2001 Senior Note Documents.
"BASE CD RATE": as defined in the definition of the term "ABR"
in this subsection 1.1.
"BOARD": as defined in the definition of the term "ABR" in
this subsection 1.1.
"BORROWER": as defined in the Preamble hereto.
"BORROWING DATE": any Business Day specified in a notice
pursuant to subsection 2.2, 2.4, 2.7 or 3.2 as a date on which the
Borrower requests the Lenders to make Loans hereunder or the Issuing
Lender to issue Letters of Credit hereunder.
"BUSINESS DAY": a day other than a Saturday, Sunday or other
day on which commercial banks in
New York,
New York are authorized or
required by law to close, except that, when used in connection with a
Eurodollar Loan, "Business Day" shall mean, in the case of any Eurodollar
Loan in Dollars, any Business Day on which dealings in Dollars between
banks may be carried on in London, England and
New York, New York.
"CAPITAL EXPENDITURES": with respect to any Person for any
period, the sum of the aggregate of all expenditures by such Person and
its consolidated Subsidiaries during such period (exclusive of
expenditures made for acquisitions permitted by subsection 8.10) which, in
accordance with GAAP, are or should be included in "capital expenditures."
"CAPITAL STOCK": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other
than a corporation) and any and all warrants or options to purchase any of
the foregoing.
"CASH EQUIVALENTS": (a) securities issued or fully guaranteed
or insured by the United States Government or any agency or
instrumentality thereof, (b) time deposits, certificates of deposit or
bankers' acceptances of (i) any Lender or (ii) any commercial bank having
capital and surplus in excess of $500,000,000 and the commercial paper of
the holding company of which is rated at least A-2 or the equivalent
thereof by Standard & Poor's Ratings Group (a division of The McGraw Hill
Companies Inc.) or any successor rating agency ("S&P") or at least P-2 or
the equivalent thereof by Xxxxx'x Investors Service, Inc. or any successor
rating agency ("MOODY'S") (or if at such time neither is issuing ratings,
then a comparable rating of such other nationally recognized rating agency
as shall be approved by the Administrative Agent in its reasonable
judgment), (c) commercial paper rated at least A-2 or the equivalent
thereof by S&P or at least P-2 or the equivalent thereof by Moody's (or if
at such time neither is issuing ratings, then a comparable rating of such
other nationally recognized rating agency as shall be approved by the
Administrative Agent in its reasonable judgment), (d) investments in money
market funds complying with the risk limiting conditions of Rule 2a-7 or
any successor rule of the Securities and Exchange Commission under the
Investment Company Act, and (e) investments similar to any of the
foregoing denominated in foreign currencies approved by the board of
directors of the Borrower, in each case provided in clauses (a), (b), (c)
and (e) above only, maturing within twelve months after the date of
acquisition.
"CD&R": Xxxxxxx, Dubilier & Rice, Inc., a Delaware
corporation, and its successors and assigns.
"CD&R FUND V": Xxxxxxx, Dubilier & Rice Fund V Limited
Partnership, a Cayman Islands exempted limited partnership, and its
predecessors and successors and its assigns who are existing members of
the CD&R Group at the time of any such assignment.
"CD&R GROUP": CD&R Fund V, CD&R and their Affiliates (other
than any Persons who are Affiliates solely by virtue of their direct or
indirect ownership interests in Holding) and any other investment fund or
vehicle managed, sponsored or advised by CD&R, or any Affiliate (other
than any Person who is an Affiliate solely by virtue of its direct or
indirect ownership interest in Holding) of or successor to CD&R, CD&R Fund
V or any such other investment fund or vehicle.
"C/D ASSESSMENT RATE": for any day as applied to any ABR Loan,
the annual assessment rate in effect on such day which is payable by a
member of the Bank Insurance Fund maintained by the Federal Deposit
Insurance Corporation (the "FDIC") classified as well-capitalized and
within supervisory subgroup "B" (or a comparable
successor assessment risk classification) within the meaning of 12 C.F.R.
ss. 327.4 (or any successor provision) to the FDIC (or any successor) for
such Corporation's (or such successor's) insuring time deposits at offices
of such institution in the United States.
"C/D RESERVE PERCENTAGE": for any day as applied to any ABR
Loan, that percentage (expressed as a decimal) which is in effect on such
day, as prescribed by the Board, for determining the maximum reserve
requirement for a Depositary Institution (as defined in Regulation D of
the Board) in respect of new non-personal time deposits in Dollars of
$100,000 or more having a maturity of 30 days or more.
"CHANGE OF CONTROL": the occurrence of any of the following
events: (i) (x) prior to the date on which a Public Market in respect of
common stock of Holding has been established, the Permitted Holders shall
in the aggregate beneficially own shares of Voting Stock having less than
51% of the total voting power of all outstanding shares of Holding or (y)
on or after the date on which a Public Market in respect of common stock
of Holding has been established, the Permitted Holders shall in the
aggregate beneficially own shares of Voting Stock having less than 35% of
the total voting power of all outstanding shares of Holding, (ii) the CD&R
Group shall in the aggregate beneficially own shares of Voting Stock
having less than 15% of the total voting power of all outstanding shares
of Holding, (iii) prior to the date on which a Public Market in respect of
common stock of Holding has been established, one or more members of the
CD&R Group shall not have the power (whether or not exercised), by virtue
of owning shares of the Voting Stock of Holding or by contract or
otherwise, to elect or cause the election of the Chairman of the Board of
Holding's board of directors, (iv) Holding shall cease to own, directly or
indirectly, 100% of the Capital Stock of the Borrower (or any successor to
the Borrower permitted pursuant to subsection 8.5); or (v) a "Change of
Control" as defined in any of the Existing Note Indentures under which any
Existing Notes are then outstanding; as used in this paragraph "VOTING
STOCK" shall mean shares of Capital Stock entitled to vote generally in
the election of directors.
"CHASE": The Chase Manhattan Bank.
"CLOSING DATE": the date on which all the conditions precedent
set forth in subsection 6.1 shall be satisfied or waived, which date is
August __, 2001.
"CODE": the Internal Revenue Code of 1986, as amended from
time to time.
"COLLATERAL": all assets of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any
Security Document.
"COMMERCIAL LETTER OF CREDIT": as defined in subsection
3.1(a).
"COMMONLY CONTROLLED ENTITY": an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of
ERISA or is part of a group which includes the Borrower and which 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 Sections 414(m) and (o) of the Code.
"CONDUIT LENDER": any special purpose corporation organized
and administered by any Lender for the purpose of making Loans otherwise
required to be made by such Lender and designated by such Lender in a
written instrument delivered to the Administrative Agent (a copy of which
shall be provided by the Administrative Agent to the Borrower on request);
PROVIDED, that the designation by any Lender of a Conduit Lender shall not
relieve the designating Lender of any of its obligations under this
Agreement, including, without limitation, its obligation to fund a Loan
if, for any reason, its Conduit Lender fails to fund any such Loan, and
the designating Lender (and not the Conduit Lender) shall have the sole
right and responsibility to deliver all consents and waivers required or
requested under this Agreement with respect to its Conduit Lender, and
PROVIDED, FURTHER, that no Conduit Lender shall (a) be entitled to receive
any greater amount pursuant to any provision of this Agreement, including
without limitation subsection 4.10, 4.11, 4.12 or 11.5, than the
designating Lender would have been entitled to receive in respect of the
extensions of credit made by such Conduit Lender if such designating
Lender had not designated such Conduit Lender hereunder, (b) be deemed to
have any Term Loan Commitment or Revolving Credit Commitment or (c) be
designated if such designation would otherwise increase the costs of any
Facility to the Borrower.
"CONFIDENTIAL INFORMATION MEMORANDUM": that certain
Confidential Information Memorandum dated June 2001 and furnished to the
Lenders.
"CONSOLIDATED FUNDED INDEBTEDNESS/SECURITIZATION": at the date
of determination thereof, the sum of (i) all Indebtedness of Holding and
its consolidated Subsidiaries which by its terms matures more than one
year after the date of calculation, including, in any event, the Existing
Notes, and any such Indebtedness maturing within one year from such date
which is renewable or extendable at the option of the obligor to a date
more than one year from such date, including, in any event, the Term
Loans, the Revolving Credit Loans and the Swing Line Loans, in each case
determined on a consolidated basis in accordance with GAAP PLUS (ii)
without duplication of amounts included in clause (i) above, an amount
equal to the aggregate cash proceeds received by Holding or any of its
Subsidiaries from an unrelated third party (net of amounts repaid) from
the financing of Accounts pursuant to any Permitted Receivables
Transaction. In determining under clause (i) of this definition the
Indebtedness of Holdings and its consolidated Subsidiaries under or in
respect of any Permitted Receivables Transaction or under clause (ii) of
this definition the amount equal to the aggregate cash proceeds received
by Holding or any such Subsidiary from the financing of any Receivable or
other asset, as the case may be, pursuant to any Permitted Receivables
Transaction, such Indebtedness or amount shall be reduced by any escrowed
or pledged cash proceeds which effectively secure such Indebtedness or the
obligations of Holding or any such Subsidiary under such Permitted
Receivables Transaction.
"CONSOLIDATED INTEREST EXPENSE": for any period, the sum of
(a) interest expense (accrued and paid or payable in cash for such period,
and in any event excluding any amortization or write off of financing
costs) on Indebtedness of Holding and its consolidated Subsidiaries for
such period, PLUS (b) the portion of any discount equivalent to interest
arising during and attributable to such period from the factoring of
accounts receivable or notes receivable by any Foreign Subsidiary pursuant
to subsection 8.6(c), MINUS (c) interest income (accrued and received or
receivable in cash for such period) of Holding and its consolidated
Subsidiaries for such period, in each case determined on a consolidated
basis in accordance with GAAP; PROVIDED that in the event of the
consummation of any Permitted Receivables Transaction, "Consolidated
Interest Expense" shall be adjusted to include (without duplication) an
amount equal to the interest (or other fees in the nature of interest or
discount accrued and paid or payable in cash for such period) on such
Permitted Receivables Transaction.
"CONSOLIDATED INTEREST EXPENSE RATIO": for any period, the
ratio of (a) EBITDA for such period to (b) Consolidated Interest Expense
for such period.
"CONSOLIDATED LEVERAGE RATIO": as of the last day of any
period, the ratio of (a) Consolidated Funded Indebtedness/Securitization
on such day to (b) EBITDA for the period of four full fiscal quarters
ending on such date.
"CONSOLIDATED NET INCOME": for any period, net income of
Holding and its consolidated Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.
"CONTRACTUAL OBLIGATION": as to any Person, any provision of
any material security issued by such Person or of any material agreement,
instrument or other undertaking to which such Person is a party or by
which it or any of its property is bound.
"DEFAULT": any of the events specified in Section 9, whether
or not any requirement for the giving of notice (other than, in the case
of subsection 9(e), a Default Notice), the lapse of time, or both, or any
other condition, has been satisfied.
"DEFAULT NOTICE": as defined in subsection 9(e).
"DISPOSITION": as defined in the definition of the term "Asset
Sale" in this subsection 1.1.
"DOLLARS" and "$": dollars in lawful currency of the United
States of America.
"DOMESTIC SUBSIDIARY": any Subsidiary of the Borrower which is
not a Foreign Subsidiary.
"EBITDA": for any period, Consolidated Net Income for such
period adjusted to exclude the following items (without duplication) of
income or expense to the
extent that such items are included in the calculation of Consolidated Net
Income: (a) Consolidated Interest Expense, (b) any non-cash expenses and
charges (including the consolidated cost of timber harvested), (c) total
income tax expense, (d) depreciation expense, (e) the expense associated
with amortization of intangible and other assets (including amortization
or other expense recognition of any costs associated with asset write-ups
in accordance with APB Nos. 16 and 17), (f) non-cash provisions for
reserves for discontinued operations, (g) any extraordinary, unusual or
non-recurring gains or losses or charges or credits or any non-recurring
or extraordinary items paid or accrued during such period relating to
deferred compensation owed to any Management Investor that was cancelled,
waived or exchanged in connection with the grant to such Management
Investor of the right to receive or acquire shares of common stock of
Holding, (h) any gain or loss associated with the sale or write-down of
assets not in the ordinary course of business and (i) any income or loss
accounted for by the equity method of accounting (except in the case of
income to the extent of the amount of cash dividends or cash distributions
paid to Holding or any of its Subsidiaries by the entity accounted for by
the equity method of accounting).
"ENVIRONMENTAL COSTS": any and all costs or expenses
(including, without limitation, attorney's and consultant's fees,
investigation and laboratory fees, response costs, court costs and
litigation expenses, fines, penalties, damages, settlement payments,
judgments and awards), of whatever kind or nature, known or unknown,
contingent or otherwise, arising out of, or in any way relating to, any
violation of, noncompliance with or liability under any Environmental Laws
or any orders, requirements, demands, or investigations of any person
related to any Environmental Laws. Environmental Costs include any and all
of the foregoing, without regard to whether they arise out of or are
related to any past, pending or threatened proceeding of any kind.
"ENVIRONMENTAL LAWS": any and all foreign, Federal, state,
local or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, and such requirements of any Governmental Authority
properly promulgated and having the force and effect of law or other
Requirements of Law (including common law) regulating, relating to or
imposing liability or standards of conduct concerning protection of human
health or the environment, as have been, or now or at any relevant time
hereafter are, in effect.
"ENVIRONMENTAL PERMITS": any and all permits, licenses,
registrations, notifications, exemptions and any other authorization
required under any Environmental Law.
"ENVIRONMENTAL PROGRAM": as defined in subsection 7.8(c).
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"EURODOLLAR BASE RATE": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
determined by the Administrative Agent to be the arithmetic mean (rounded
to the nearest 1/100th of 1%) of the offered rates for U.S. dollar
deposits with a term comparable to the applicable Interest Period that
appears on the Telerate British Bankers Assoc. Interest Settlement Rates
Page (as defined below) at approximately 11:00 a.m., London time, on the
second full Business Day preceding the first day of such Interest Period;
PROVIDED, HOWEVER, that if there shall at any time no longer exist a
Telerate British Bankers Assoc. Interest Settlement Rates Page,
"Eurodollar Base Rate" shall mean, with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum equal
to the rate at which Chase is offered Dollar deposits at or about 10:00
A.M., New York City time, two Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where the eurodollar
and foreign currency and exchange operations in respect of its Eurodollar
Loans are then being conducted for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
comparable to the amount of its Eurodollar Loan to be outstanding during
such Interest Period. "TELERATE BRITISH BANKERS ASSOC. INTEREST SETTLEMENT
RATES PAGE" shall mean the display designated as Page 3750 on the Telerate
System (or such other page as may replace such page on such service for
the purpose of displaying the rates at which Dollar deposits are offered
by leading banks in the London interbank deposit market).
"EURODOLLAR LOANS": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"EURODOLLAR RATE": with respect to each day during each
Interest Period pertaining to a EURODOLLAR LOAN, a rate per annum
determined for such day in accordance with the following formula (rounded
upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
-------------------------------------
100 - Eurodollar Reserve Requirements
"EURODOLLAR RESERVE REQUIREMENTS": for any day as applied to a
EURODOLLAR LOAN, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto) dealing
with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board)
maintained by a member bank of the Federal Reserve System.
"EVENT OF DEFAULT": any of the events specified in Section 9,
PROVIDED that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"EXCHANGE ACT": the Securities Exchange Act of 1934, as
amended from time to time.
"EXCLUDED PROPERTIES": the collective reference to the fee or
leasehold interest in real properties owned by the Borrower or any of its
Subsidiaries described in Part III of Schedule 5.8.
"EXISTING
CREDIT AGREEMENT": as defined in the Preamble
hereto.
"EXISTING MORTGAGEE TITLE POLICIES": the collective reference
to each of those certain existing policies of title insurance issued to
the Administrative Agent pursuant to Existing
Credit Agreement in respect
of each of the Mortgaged Properties as of the Closing Date.
"EXISTING MORTGAGES": the collective reference to each
existing deed of trust and mortgage, in each case, as amended from time to
time, delivered pursuant to the Existing
Credit Agreement in respect of
each of the Mortgaged Properties as of the Closing Date and listed on
Schedule E.
"EXISTING NOTE DOCUMENTS": the collective reference to the
Existing Notes and the Existing Note Indentures.
"EXISTING NOTE INDENTURES": the collective reference to the
following: (i) the 1996 Senior Note Indenture, (ii) the 1996 Senior
Subordinated Note Indenture (iii) the 1997 Senior Note Indenture and (iv)
the 2001 Senior Note Indenture.
"EXISTING NOTES": the collective reference to the following:
(i) the 1996 Senior Notes, (ii) the 1996 Senior Subordinated Notes (iii)
the 1997 Senior Notes and (iv) the 2001 Senior Notes.
"EXISTING RIC HOLDING INDEBTEDNESS": Indebtedness of RIC
Holding under (i) the 6.75% Convertible Notes due 2003 and (ii) the 11.25%
Senior Subordinated Notes due 2002.
"EXTENSION OF CREDIT": as to any Lender, the making of, or the
issuance of, or participation in, a Loan by such Lender or the issuance
of, or participation in, a Letter of Credit by such Lender.
"FACILITY": each of (a) the Term Loan Commitments and the Term
Loans made thereunder and (b) the Revolving Commitments and the extensions
of credit made thereunder.
"FIRREA": the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as amended from time to time.
"FEDERAL FUNDS EFFECTIVE RATE": as defined in the definition
of the term "ABR" in this subsection 1.1.
"FINANCING LEASE": any lease of property, real or personal,
the obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the lessee.
"FOREIGN BACKSTOP LETTERS OF CREDIT": any Standby Letter of
Credit issued to any Person for the account of the Borrower to provide
credit support for Indebtedness of any Foreign Subsidiary to such Person
which is permitted under subsection 8.2.
"FOREIGN SUBSIDIARIES SHARE PLEDGE AGREEMENTS": means the (i)
Foreign Subsidiaries Share Pledge Agreement dated as of March 27, 1996, as
amended by Amendments Nos. 1, 2 and 3, made by the Borrower and Riverwood
International Enterprises, Inc., a wholly owned Subsidiary of the
Borrower, in favor of the Administrative Agent, as amended, waived,
supplemented or otherwise modified from time to time and (ii) the security
documents set forth on Schedule 7 to the Guarantee and Collateral
Agreement under the heading "Standalone Foreign Subsidiaries Share Pledge
Agreements".
"FOREIGN SUBSIDIARY": any Subsidiary of the Borrower which is
organized and existing under the laws of any jurisdiction outside of the
United States of America.
"GAAP": with respect to the covenants contained in subsections
8.1, 8.2 and 8.8 and all defined terms relating thereto (including,
without limitation, the defined term "Consolidated Funded
Indebtedness/Securitization"), generally accepted accounting principles in
the United States of America in effect on March 20, 1996, and, for all
other purposes under this Agreement, generally accepted accounting
principles in the United States of America in effect from time to time.
"GOVERNMENTAL AUTHORITY": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government, including, without limitation, the
European Union.
"GUARANTEE AND COLLATERAL AGREEMENT": the Guarantee and
Collateral Agreement delivered to the Administrative Agent as of the date
hereof, substantially in the form of Exhibit B, as the same may be
amended, supplemented, waived or otherwise modified from time to time.
"GUARANTEE OBLIGATION": as to any Person (the "GUARANTEEING
PERSON"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has issued
a reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the "PRIMARY OBLIGATIONS") of any other third Person
(the "PRIMARY OBLIGOr") in any manner, whether directly or indirectly,
including, without limitation, any such obligation of the guaranteeing
person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (1) for the purchase or payment
of any such primary obligation or (2) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of
any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect
thereof; PROVIDED, HOWEVER, that the term Guarantee Obligation shall not
include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount equal
to the stated or determinable amount of the primary obligation in respect
of which such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may
be liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum
reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.
"GUARANTORS": the collective reference to Holding, RIC Holding
and each Subsidiary of the Borrower (other than any Foreign Subsidiary,
any Subsidiary of a Foreign Subsidiary, and any Special Purpose
Subsidiary), which is from time to time party to the Guarantee and
Collateral Agreement; individually, a "GUARANTOR".
"HOLDING": as defined in the Recitals hereto.
"INDEBTEDNESS": of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than trade liabilities
incurred in the ordinary course of business and payable in accordance with
customary practices), (b) any other indebtedness of such Person which is
evidenced by a note, bond, debenture or similar instrument, (c) all
obligations of such Person under Financing Leases, (d) all obligations of
such Person in respect of acceptances issued or created for the account of
such Person, (e) for purposes of subsection 8.2 and subsection 9(e) only,
all obligations of such Person in respect of interest rate protection
agreements, interest rate futures, interest rate options, interest rate
caps and any other interest rate hedge arrangements, and (f) all
indebtedness or obligations of the types referred to in the preceding
clauses (a) through (e) to the extent secured by any Lien on any property
owned by such Person even though such Person has not assumed or otherwise
become liable for the payment thereof.
"INSOLVENCY": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245
of ERISA.
"INSOLVENT": pertaining to a condition of Insolvency.
"INTELLECTUAL PROPERTY": as defined in subsection 5.9.
"INTEREST PAYMENT DATE": (a) as to any ABR Loan, the last day
of each March, June, September and December to occur while such Loan is
outstanding and, if such ABR Loan is a Term Loan, the date of each payment
of principal thereof, (b) as to any Eurodollar Loan having an Interest
Period of three months or less, the last day of such Interest Period, and
(c) as to any Eurodollar Loan having an Interest Period longer than three
months, (x) each day which is three months, or a whole multiple thereof,
after the first day of such Interest Period and (y) the last day of such
Interest Period.
"INTEREST PERIOD": with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one, two, three or six months thereafter, as
selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day
of the next preceding Interest Period applicable to such Eurodollar
Loan and ending one, two, three or six months thereafter, as
selected by the Borrower by irrevocable notice to the Administrative
Agent not less than three Business Days prior to the last day of the
then current Interest Period with respect thereto;
PROVIDED that all of the foregoing provisions relating to Interest Periods
are subject to the following:
(1) if any Interest Period would otherwise end on a day
that is not a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end on the
immediately preceding Business Day;
(2) any Interest Period that would otherwise extend
beyond the Termination Date shall (for all purposes other than
subsection 4.12) end on the Termination Date;
(3) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of a
calendar month; and
(4) the Borrower shall select Interest Periods so as not
to require a scheduled payment of any Eurodollar Loan during an
Interest Period for such Loan.
"INTEREST RATE PROTECTION AGREEMENT": any interest rate
protection agreement, interest rate future, interest rate option, interest
rate cap or collar or other interest rate hedge arrangement in form and
substance, and for a term, reasonably satisfactory to the Administrative
Agent and with (i) any Lender or (ii) any financial institution reasonably
acceptable to the Administrative Agent, to or under which the Borrower or
any of its Subsidiaries is or becomes a party or a beneficiary.
"INVENTORY": as defined in the Uniform Commercial Code as in
effect in the State of New York from time to time; and, with respect to
the Borrower and its Domestic Subsidiaries, all such Inventory of the
Borrower and such Domestic Subsidiaries (other than any Special Purpose
Subsidiary), including, without limitation: (i) all goods, wares and
merchandise held for sale or lease (including, without limitation, all
paper and paperboard products); and (ii) all goods returned or repossessed
by the Borrower or such Domestic Subsidiaries.
"INVESTMENT COMPANY ACT": the Investment Company Act of 1940,
as amended from time to time.
"INVESTMENTS": as defined in subsection 8.9.
"ISSUING LENDER": the Administrative Agent, in its capacity as
issuer of any Letter of Credit.
"L/C FEE PAYMENT DATE": with respect to any Letter of Credit,
the last day of each March, June, September and December to occur after
the date of issuance thereof to and including the first such day to occur
on or after the date of expiry thereof.
"L/C OBLIGATIONS": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then
outstanding Letters of Credit and (b) the aggregate amount of drawings
under Letters of Credit which have not then been reimbursed pursuant to
subsection 3.5(a).
"L/C Participants": the collective reference to all the
Revolving Credit Lenders other than the Issuing Lender.
"LENDER AFFILIATE": (a) any Affiliate of any Lender, (b) any
Person that is and remains administered or managed by any Lender and that
is and remains engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in the
ordinary course of its business and (c) with respect to any Lender which
is a fund that invests in commercial loans and similar extensions of
credit, any other fund that invests in commercial loans and similar
extensions of credit and is
and remains managed or advised by the same investment advisor as such
Lender or by an Affiliate of such Lender or investment advisor.
"LENDERS": as defined in the Preamble hereto.
"LETTERS OF CREDIT": as defined in subsection 3.1(a).
"LIEN": any mortgage, pledge, hypothecation, assignment,
security deposit arrangement, encumbrance, lien (statutory or other),
charge or other security interest or any preference, priority or other
security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other
title retention agreement and any Financing Lease having substantially the
same economic effect as any of the foregoing).
"LOAN": a Revolving Credit Loan, a Term Loan or a Swing Line
Loan, as the context shall require; collectively, the "LOANS".
"LOAN DOCUMENTS": this Agreement, any Notes, the Applications,
the Guarantee and Collateral Agreement, any other Security Documents and
any Lockbox Agreements, each as amended, supplemented, waived or otherwise
modified from time to time.
"LOAN PARTIES": Holding, RIC Holding, the Borrower and each
other Subsidiary of the Borrower which is a party to a Loan Document;
individually, a "LOAN PARTY".
"LOCKBOX AGREEMENT": each Lockbox Agreement existing as of the
Closing Date as set forth on Schedule D and each Lockbox Agreement entered
into hereafter, containing terms and conditions substantially similar to
the terms and conditions contained in each existing Lockbox Agreement set
forth on Schedule D, with such changes or additions to such form as shall
be approved by the Administrative Agent (which approval shall not be
unreasonably withheld), among the Borrower or any of its Subsidiaries, a
Lockbox Bank and the Administrative Agent as the same may be amended,
supplemented, waived or otherwise modified from time to time.
"LOCKBOX BANK": each bank party to a Lockbox Agreement as the
"Lockbox Bank" thereunder and as defined therein, which shall be (i)
Mellon Financial Services Corporation or an Affiliate thereof, (ii) a
Lender which is a bank or (iii) a bank approved by the Administrative
Agent (which approval will not be unreasonably withheld). Each Lockbox
Bank as of the Closing Date is listed on Schedule D and has been approved
by the Administrative Agent.
"MACHINERY FINANCING INDEBTEDNESS": Indebtedness of the
Borrower or any Subsidiary thereof incurred to finance or refinance
packaging machinery, in an aggregate amount not to exceed the then
aggregate book value of the packaging
machinery that is thereby financed or refinanced (or, if greater, to the
extent that any such machinery shall be appraised by an independent
appraiser, the appraised value of such machinery).
"MANAGEMENT INVESTORS": the collective reference to the
officers, directors, employees and other members of the management of
Holding, RIC Holding, the Borrower or any of their Subsidiaries, or family
members or relatives thereof or trusts for the benefit of any of the
foregoing, who at any particular date shall beneficially own or have the
right to acquire, directly or indirectly, common stock of Holding.
"MANAGEMENT SUBSCRIPTION AGREEMENTS": one or more stock
subscription, stock option, grant or other agreements which have been or
may be entered into between Holding and one or more Management Investors
(or any of their heirs, successors, assigns, legal representatives or
estates), with respect to the issuance to and/or acquisition, ownership
and/or disposition by any of such parties of common stock of Holding or
options, warrants, units or other rights in respect of common stock of
Holding, any agreements entered into from time to time by transferees of
any such stock, options, warrants or other rights in connection with the
sale, transfer or reissuance thereof, and any assumptions of any of the
foregoing by third parties, as amended, supplemented, waived or otherwise
modified from time to time.
"MANVILLE": Xxxxx Xxxxxxxx Corporation, a Delaware
corporation.
"MATERIAL ADVERSE EFFECT": a material adverse effect on (a)
the business, operations, property, condition (financial or otherwise) or
prospects of Holding and its Subsidiaries taken as a whole, or (b) the
validity or enforceability as to any Loan Party thereto of this Agreement
or any of the other Loan Documents or the rights or remedies of the
Administrative Agent and the Lenders under the Loan Documents taken as a
whole.
"MATERIALS OF ENVIRONMENTAL CONCERN": any gasoline or
petroleum (including, without limitation, crude oil or any fraction
thereof) or petroleum products or any hazardous or toxic substances or
materials or wastes defined or regulated as such in or under or which may
give rise to liability under any applicable Environmental Law, including,
without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"MORTGAGE AMENDMENTS": the collective reference to each of the
amendments to mortgage or amendments to deed of trust executed and
delivered by any Loan Party, substantially in the form of Exhibit C (with
such modifications thereto as the Administrative Agent on or before the
Closing Date shall reasonably determine is necessary in any state to
maintain the priority of the first mortgage Lien encumbering the relevant
Mortgaged Property).
"MORTGAGED FEE PROPERTIES": the collective reference to the
real properties owned in fee by the Loan Parties described on Part I of
Schedule 5.8, including, without limitation, all buildings, improvements,
structures and fixtures now or subsequently located thereon and owned by
any such Loan Party.
"MORTGAGED LEASED PROPERTIES": the collective reference to the
real properties leased by the Loan Parties described on Part II of
Schedule 5.8, including, without limitation, all buildings, improvements,
structures and fixtures now or subsequently located thereon and owned or
leased by any such Loan Party.
"MORTGAGED PROPERTIES": the collective reference to each of
the Mortgaged Fee Properties and the Mortgaged Leased Properties.
"MORTGAGES": (i) each of the Existing Mortgages and (ii) each
of the mortgages and deeds of trust, if any, executed and delivered by the
Borrower or any of its Domestic Subsidiaries to the Administrative Agent
pursuant to subsection 7.9, as the same may be amended, supplemented,
waived or otherwise modified from time to time.
"MULTIEMPLOYER PLAN": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NET CASH PROCEEDS": with respect to any Asset Sale
(including, without limitation, any Sale and Leaseback Transaction
permitted under subsection 8.12), any Recovery Event, any sale or issuance
of equity securities of Holding or any of its Subsidiaries (excluding any
sale or issuance of equity securities of Holding to any Management
Investors), the issuance of any debt securities or any borrowings by
Holding or any of its Subsidiaries (other than issuances and borrowings
permitted pursuant to subsection 8.2, except as otherwise specified), or
any Permitted Receivables Transaction, an amount equal to the gross
proceeds in cash and Cash Equivalents of such Asset Sale, Recovery Event,
sale, issuance, borrowing or Permitted Receivables Transaction, net of (i)
reasonable attorneys' fees, accountants' fees, brokerage, consultant and
other customary fees, underwriting commissions and other reasonable fees
and expenses actually incurred in connection with such Asset Sale,
Recovery Event, sale, issuance, borrowing or Permitted Receivables
Transaction, (ii) taxes paid or reasonably estimated to be payable as a
result thereof, (iii) appropriate amounts provided or to be provided by
Holding or any of its Subsidiaries as a reserve, in accordance with GAAP,
with respect to any liabilities associated with such Asset Sale or
Recovery Event and retained by Holding or any such Subsidiary after such
Asset Sale or Recovery Event and other appropriate amounts to be used by
Holding or any of its Subsidiaries to discharge or pay on a current basis
any other liabilities associated with such Asset Sale or Recovery Event
(including, without limitation, in connection with any Asset Sale in
respect of packaging machines appropriate amounts, if any, required to be
prepaid under any Machinery Financing Indebtedness), (iv) in the case of a
sale, Recovery Event or Sale and Leaseback Transaction of or involving an
asset subject to a Lien securing any Indebtedness, payments made and
installment payments required to be made to repay such
Indebtedness, including, without limitation, payments in respect of
principal, interest and prepayment premiums and penalties and (v) in the
case of any Permitted Receivables Transaction, any escrowed or pledged
cash proceeds which effectively secure, or are required to be maintained
as reserves by the applicable Special Purpose Subsidiary for, the
Indebtedness of Holding and its Subsidiaries in respect of, or the
obligations of Holding and its Subsidiaries under, such Permitted
Receivables Transaction.
"1996 SENIOR NOTE DOCUMENTS": the collective reference to the
1996 Senior Notes, and the 1996 Senior Note Indenture, as the same may be
amended, supplemented, waived or otherwise modified from time to time in
accordance with subsection 8.14 to the extent applicable; individually a
"1996 SENIOR NOTE DOCUMENT".
"1996 SENIOR NOTE INDENTURE": the indenture dated as of March
27, 1996 between the Borrower and Fleet National Bank of Connecticut, as
trustee, as the same may be amended, supplemented, waived or otherwise
modified from time to time in accordance with subsection 8.14 to the
extent applicable.
"1996 Senior Notes": the $250,000,000 aggregate principal
amount of 10-1/4% Senior Notes due 2006 of the Borrower, as the same may
be amended, supplemented, waived or otherwise modified from time to time
in accordance with subsection 8.14 to the extent applicable.
"1996 SENIOR SUBORDINATED NOTE DOCUMENTS": the collective
reference to the 1996 Senior Subordinated Notes and the 1996 Senior
Subordinated Note Indenture, as the same may be amended, supplemented,
waived or otherwise modified from time to time in accordance with
subsection 8.14 to the extent applicable; individually a "1996 SENIOR
SUBORDINATED NOTE DOCUMENT."
"1996 SENIOR SUBORDINATED NOTE INDENTURE": the indenture dated
as of the March 27, 1996 between the Borrower and Fleet National Bank of
Massachusetts, as trustee, as the same may be amended, supplemented,
waived or otherwise modified from time to time in accordance with
subsection 8.14 to the extent applicable.
"1996 SENIOR SUBORDINATED NOTES": the $400,000,000 aggregate
principal amount of 10-7/8% Senior Subordinated Notes due 2008 of the
Borrower, as the same may be amended, supplemented, waived or otherwise
modified from time to time in accordance with subsection 8.14 to the
extent applicable.
"1997 SENIOR NOTE DOCUMENTS": the collective reference to the
1997 Senior Notes, and the 1997 Senior Note Indenture, as the same may be
amended, supplemented, waived or otherwise modified from time to time in
accordance with subsection 8.14 to the extent applicable; individually a
"1997 SENIOR NOTE DOCUMENT."
"1997 SENIOR NOTE INDENTURE": the indenture dated as of July
28, 1997, between the Borrower and State Street Bank and Trust Company
N.A., as trustee, as the
same may be amended, supplemented, waived or otherwise modified from time
to time in accordance with subsection 8.14 to the extent applicable.
"1997 SENIOR NOTES": the $250,000,000 aggregate principal
amount 10-5/8% senior notes due 2007 of the Borrower, as the same may be
amended, supplemented, waived or otherwise modified from time to time in
accordance with subsection 8.14 to the extent applicable.
"NON-EXCLUDED TAXES": as defined in subsection 4.11.
"NOTES": the collective reference to the Revolving Credit
Notes, the Term Notes and the Swing Line Notes.
"OBLIGOR": any purchaser of goods or services or other Person
obligated to make payment to the Borrower or any of its Subsidiaries
(other than any Special Purpose Subsidiaries and the Foreign Subsidiaries)
in respect of a purchase of such goods or services.
"OTHER REPRESENTATIVES": each of X.X. Xxxxxx Securities Inc.
in its capacity as joint lead arranger of the Commitments hereunder,
Deutsche Banc Alex. Xxxxx Inc., in its capacity as joint lead arranger,
Bankers Trust Company, in its capacity as syndication agent, and the
Issuing Lender in its capacity as such.
"PARTICIPANTS": as defined in subsection 11.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor thereto).
"PERMITTED HEDGING ARRANGEMENT": as defined in subsection
8.19.
"PERMITTED HOLDERS": the Persons listed on Schedule B and
their Affiliates and any Management Investor.
"PERMITTED RECEIVABLES TRANSACTION": any transaction or series
of related transactions providing for the financing of any Receivables;
PROVIDED that any such transaction shall be consummated (i) on terms that
include terms substantially as described on Schedule C or as the Required
Lenders may otherwise consent, such consent not to be unreasonably
withheld, and (ii) pursuant to documentation in form and substance
reasonably satisfactory to the Administrative Agent, as evidenced by its
written approval thereof (such approval not to be unreasonably withheld).
"PERMITTED RECEIVABLES TRANSACTION REVOLVING CREDIT PREPAYMENT
AMOUNT": with respect to the initial transfer of Receivables pursuant to
any Permitted Receivables Transaction, an amount equal to 100% of the Net
Cash Proceeds thereof.
"PERSON": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or other
entity of whatever nature.
"PLAN": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is an "employer" as defined in Section 3(5) of ERISA.
"PRICING GRID: (i) with respect to Revolving Credit Loans and
Term Loans:
======================================================================================================
Applicable Margin for
Consolidated Leverage Ratio Applicable Margin for ABR Loans Eurodollar Loans
------------------------------------------------------------------------------------------------------
Greater than 4.50 to 1.00 1.75% 2.75%
------------------------------------------------------------------------------------------------------
Greater than 4.00, but less 1.50% 2.50%
than or equal to 4.50 to 1.00
------------------------------------------------------------------------------------------------------
Less than or equal to 4.00 1.25% 2.25%
======================================================================================================
For the purposes of each Pricing Grid, changes in the Applicable Margin
resulting from changes in the Consolidated Leverage Ratio shall become
effective on each Adjustment Date and shall remain in effect until the
next subsequent Adjustment Date. Each determination of the Consolidated
Leverage Ratio pursuant to the Pricing Grids shall be made in a manner
consistent with the determination thereof pursuant to subsection 7.1.
"PRIME RATE": as defined in the definition of the term "ABR"
in this subsection 1.1.
"PRO FORMA BALANCE SHEET": as defined in subsection 5.1(b).
"PRO FORMA DATE": as defined in subsection 5.1(b).
"RECEIVABLES": all Accounts and accounts receivable of the
Borrower or any of its Domestic Subsidiaries (other than any Special
Purpose Subsidiaries), including, without limitation, any thereof
constituting or evidenced by chattel paper, instruments or general
intangibles, and all proceeds thereof and rights (contractual and other)
and collateral related thereto.
"RECEIVABLES SUBSIDIARY": any special purpose,
bankruptcy-remote Subsidiary of the Borrower that purchases, on a
revolving basis, Receivables generated by the Borrower or any of its
Subsidiaries.
"RECOVERY EVENT": any settlement of or payment in respect of
any property or casualty insurance claim or any condemnation proceeding
relating to any asset of the Borrower or any of its Subsidiaries giving
rise to Net Cash Proceeds to the Borrower or such Subsidiary, as the case
may be, in excess of $500,000, to the extent that such settlement or
payment does not constitute reimbursement or compensation for amounts
previously paid by the Borrower or any of its Subsidiaries in respect of
such casualty or condemnation.
"REFUNDED SWING LINE LOANS": as defined in subsection 2.4(c).
"REGISTER": as defined in subsection 11.6(d).
"REGULATION U": Regulation U of the Board as in effect from
time to time.
"REIMBURSEMENT OBLIGATIONS": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to subsection 3.5(a) for amounts
drawn under Letters of Credit.
"REINVESTED AMOUNT": with respect to any Asset Sale permitted
by subsection 8.6(i) or Recovery Event, that portion of the Net Cash
Proceeds thereof (which portion shall not exceed, with respect to any
Asset Sale occurring on or after the Closing Date (but not any Recovery
Event), $50,000,000 MINUS the aggregate Reinvested Amounts with respect to
all such Asset Sales on or after the Closing Date) as shall, according to
a certificate of a Responsible Officer of the Borrower delivered to the
Administrative Agent within 30 days of such Asset Sale or Recovery Event,
be reinvested in the business of the Borrower and its Subsidiaries in a
manner consistent with the requirements of subsection 8.17(a) and the
other provisions hereof within 180 days of the receipt of such Net Cash
Proceeds with respect to any such Asset Sale or Recovery Event or, if such
reinvestment is in a project authorized by the board of directors of the
Borrower that will take longer than such 180 days to complete, the period
of time necessary to complete such project; PROVIDED that (i) if any such
certificate of a Responsible Officer is not delivered to the
Administrative Agent on the date of such Asset Sale or Recovery Event, any
Net Cash Proceeds of such Asset Sale or Recovery Event shall be
immediately (x) deposited in a cash collateral account established at
Chase to be held as collateral in favor of the Administrative Agent for
the benefit of the Lenders on terms reasonably satisfactory to the
Administrative Agent and shall remain on deposit in such cash collateral
account until such certificate of a Responsible Officer is delivered to
the Administrative Agent or (y) used to make a prepayment of the Revolving
Credit Loans in accordance with subsection 4.4(a); PROVIDED that,
notwithstanding anything in this Agreement to the contrary, the Borrower
may not request any Extension of Credit under the Revolving Credit
Commitments that would reduce the aggregate amount of the
Available Revolving Credit Commitments to an amount that is
less than the amount of any such prepayment until such certificate of a
Responsible Officer is delivered to the Administrative Agent and (ii) any
Net Cash Proceeds not so reinvested by the date required pursuant to the
terms of this definition shall be utilized on such day to prepay the Loans
pursuant to subsection 4.4(b).
"REORGANIZATION": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"REPORTABLE EVENT": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .13, .14, .16, .18, .19 or .20
of PBGC Reg. ss. 2615 or any successor regulation thereto.
"REQUIRED COLLATERAL RELEASE LENDERS": at any time, Lenders
the Total Credit Percentages of which aggregate at least 80%.
"REQUIRED LENDERS": at any time, Lenders the Total Credit
Percentages of which aggregate at least 51%.
"REQUIREMENT OF LAW": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents
of such Person, and any law, statute, ordinance, code, decree, treaty,
rule or regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such
Person or any of its material property or to which such Person or any of
its material property is subject, including, without limitation, laws,
ordinances and regulations pertaining to zoning, occupancy and subdivision
of real properties; PROVIDED that the foregoing shall not apply to any
non-binding recommendation of any Governmental Authority.
"RESPONSIBLE OFFICER": as to any Person, any of the following
officers of such Person: (i) the chief executive officer or the president
of such Person and, with respect to financial matters, the chief financial
officer, the senior vice president - finance, the treasurer or the
controller of such Person, (ii) any vice president of such Person or, with
respect to financial matters, any assistant treasurer or assistant
controller of such Person, who has been designated in writing to the
Administrative Agent as a Responsible Officer by such chief executive
officer or president of such Person or, with respect to financial matters,
such chief financial officer of such Person, (iii) with respect to
subsection 7.7 and without limiting the foregoing, the general counsel of
such Person and (iv) with respect to ERISA matters, the senior vice
president - human resources (or substantial equivalent) of such Person.
"REVOLVING CREDIT COMMITMENT": as to any Revolving Credit
Lender, its obligation to make Revolving Credit Loans to, and/or make or
participate in Swing Line Loans made to, and/or issue or participate in
Letters of Credit issued on behalf of, the
Borrower in an aggregate amount not to exceed at any one time outstanding
the amount set forth opposite such Revolving Credit Lender's name in
Schedule A under the heading "Revolving Credit Commitment" or, in the case
of any Lender that is an Assignee, the amount of the assigning Lender's
Revolving Credit Commitment assigned to such Assignee pursuant to
subsection 11.6(c) (in each case as such amount may be adjusted from time
to time as provided herein); collectively, as to all the Revolving Credit
Lenders, the "REVOLVING CREDIT COMMITMENTS". The original amount of the
aggregate Revolving Credit Commitments of the Revolving Credit Lenders is
$300,000,000.
"REVOLVING CREDIT COMMITMENT PERCENTAGE": as to any Revolving
Credit Lender, the percentage of the aggregate Revolving Credit
Commitments constituted by its Revolving Credit Commitment (or, if the
Revolving Credit Commitments have terminated or expired, the percentage
which (i) the sum of (a) such Lender's then outstanding Revolving Credit
Loans plus (b) such Lender's interests in the aggregate L/C Obligations
and Swing Line Loans then outstanding then constitutes of (ii) the sum of
(a) the aggregate Revolving Credit Loans of all the Revolving Credit
Lenders then outstanding plus (b) the aggregate L/C Obligations and Swing
Line Loans then outstanding).
"REVOLVING CREDIT COMMITMENT PERIOD": the period from and
including the Closing Date to but not including the Termination Date, or
such earlier date as the Revolving Credit Commitments shall terminate as
provided herein.
"REVOLVING CREDIT LENDER": any Lender having a Revolving
Credit Commitment hereunder.
"REVOLVING CREDIT LOANS": as defined in subsection 2.1.
"REVOLVING CREDIT NOTE": as defined in subsection 2.1(c).
"RIC HOLDING": as defined in the Preamble hereto.
"SALE AND LEASEBACK TRANSACTION": as defined in subsection
8.12.
"SECURITIES ACT": the Securities Act of 1933, as amended from
time to time.
"SECURITY DOCUMENTS": the collective reference to the
Mortgages, the Mortgage Amendments, the Guarantee and Collateral Agreement
and all other similar security documents hereafter delivered to the
Administrative Agent granting a Lien on any asset or assets of any Person
to secure the obligations and liabilities of the Borrower hereunder and/or
under any of the other Loan Documents or to secure any guarantee of any
such obligations and liabilities, including, without limitation, any
security documents executed and delivered or caused to be delivered to the
Administrative Agent pursuant to
subsection 7.9(b) or 7.9(c), in each case, as amended, supplemented,
waived or otherwise modified from time to time.
"SET": the collective reference to Eurodollar Loans, the then
current Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Loans shall
originally have been made on the same day).
"SINGLE EMPLOYER PLAN": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"SOLVENT" AND "SOLVENCY": with respect to any Person on a
particular date, the condition that, on such date, (a) the fair value of
the property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of
such Person, (b) the present fair salable value of the assets of such
Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay as
such debts and liabilities mature, and (d) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute an
unreasonably small amount of capital.
"SPECIAL PURPOSE SUBSIDIARY": any Receivables Subsidiary.
"STANDBY LETTER OF CREDIT": as defined in 0subsection 3.1(a).
"SUBSIDIARY": as to any Person, a corporation, partnership or
other entity (i) of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the time
owned by such Person, or (ii) the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or
both, by such Person and, in the case of this clause (ii), which is
treated as a consolidated subsidiary for accounting purposes. Unless
otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries"
in this Agreement shall refer to a Subsidiary or Subsidiaries of the
Borrower.
"SWING LINE COMMITMENT": the Swing Line Lender's obligation to
make Swing Line Loans pursuant to subsection 2.4.
"SWING LINE LENDER": Chase, in its capacity as provider of the
Swing Line Loans.
"SWING LINE LOAN PARTICIPATION CERTIFICATE": a certificate in
substantially the form of Exhibit G.
"SWING LINE LOANS": as defined in subsection 2.4(a).
"SYNTHETIC PURCHASE AGREEMENT": any agreement pursuant to
which the Borrower or any of its Subsidiaries is or may become obligated
to make any payment (except as otherwise permitted by this Agreement) to
any third party (other than Holding or any of its Subsidiaries) in
connection with the purchase or the notional purchase by such third party
or any Affiliate thereof from a Person other than Holding or any of its
Subsidiaries of any Capital Stock of Holding or any Existing Notes
referred to in subsection 8.14; PROVIDED, that the term "Synthetic
Purchase Agreement" shall not be deemed to include (i) any phantom stock,
stock appreciation rights, equity purchase or similar plan or arrangement
providing for payments only to current or former officers, directors,
employees and other members of the management of Holding, RIC Holding, the
Borrower or any of their Subsidiaries, or family members or relatives
thereof or trusts for the benefit of any of the foregoing (or to their
heirs, successors, assigns, legal representatives or estates), or (ii) any
agreement evidencing or relating to (x) one or more Guarantee Obligations
in connection with Indebtedness incurred by any Management Investors in
connection with any Management Subscription Agreements or other purchases
by them of Capital Stock of Holding, or any refinancing, refunding,
extension or renewal thereof, or (y) one or more loans or advances to one
or more Management Investors in connection with the purchase by such
Management Investors of Capital Stock of Holding (including in each case
under this clause (ii), without limitation, any agreement evidencing any
right or option to acquire any such stock in connection with payment under
any such Guarantee Obligation or in partial or full satisfaction of any
such loan or advance).
"TAX MATTERS AGREEMENT": the Tax Matters Agreement dated as of
October 25, 1995 among RIC Holding and Manville, as the same may be
amended, supplemented, waived or otherwise modified from time to time.
"TERM LOAN": as defined in subsection 2.5(a).
"TERM LOAN COMMITMENT": as to any Term Loan Lender, its
obligation to make Term Loans to the Borrower in an aggregate amount not
to exceed at any one time outstanding the amount set forth opposite such
Term Loan Lender's name in Schedule A under the heading "Term Loan
Commitment" or, in the case of any Lender that is an Assignee, the amount
of the assigning Lender's Term Loan Commitment assigned to such Assignee
pursuant to subsection 11.6(c) (in each case as such amount may be
adjusted from time to time as provided herein); collectively, as to all
the Term Loan Lenders, the "TERM LOAN COMMITMENTS". After the Closing
Date, the aggregate amount of Term Loan Commitments may not exceed
$335,000,000.
"TERM LOAN LENDER": any Lender having a Term Loan Commitment
hereunder and/or a Term Loan outstanding hereunder.
"TERM LOAN PERCENTAGE": as to any Term Loan Lender at any
time, the percentage which (i) such Lender's Term Loans then outstanding
constitutes of (ii) the aggregate Term Loans of all the Term Loan Lenders
then outstanding.
"TERM NOTE": as defined in subsection 2.5(b).
"TERMINATION DATE": December 31, 2006; PROVIDED, that, in the
event that, on or prior to December 31, 2005, the 1996 Senior Notes have
not been extended, renewed, refunded, replaced or refinanced
(collectively, "REFINANCED") on terms substantially similar to, or more
favorable to the Borrower and its Subsidiaries than, the terms governing
the 1996 Senior Notes and providing for a scheduled maturity date for the
Indebtedness refinancing the 1996 Senior Notes of no earlier than January
1, 2008, then the Termination Date shall be deemed to be December 31,
2005.
"THREE MONTH SECONDARY CD RATE": as defined in the definition
of the term "ABR" in this subsection 1.1.
"TOTAL CREDIT PERCENTAGE": as to any Lender at any time, the
percentage of the aggregate Revolving Credit Commitments (or, in the case
of the termination or expiration of the Revolving Credit Commitments, the
Aggregate Outstanding Revolving Credit of the Lenders) and aggregate
outstanding Term Loans of the Lenders then constituted by such Lender's
Revolving Credit Commitment (or, in the case of the termination or
expiration of the Revolving Credit Commitments, such Lender's Aggregate
Outstanding Revolving Credit) and outstanding Term Loans.
"TRANSFEREE": as defined in subsection 11.6(f).
"2001 SENIOR NOTE DOCUMENTS": the collective reference to the
2001 Senior Notes, the 2001 Senior Note Indenture, as the same may be
amended, supplemented, waived or otherwise modified from time to time in
accordance with subsection 8.14 to the extent applicable; individually, a
"2001 SENIOR NOTE DOCUMENT".
"2001 SENIOR NOTE INDENTURE": the indenture dated as of June
21, 2001 between the Borrower and State Street Bank and Trust Company
N.A., as trustee, as the same may be amended, supplemented, waived or
otherwise modified from time to time in accordance with subsection 8.14 to
the extent applicable.
"2001 SENIOR NOTES": the 10-5/8% Senior Notes due 2007 in an
aggregate principal amount of $250,000,000 issued in 2001, as the same may
be exchanged as provided in the 2001 Senior Note Indenture for
substantially similar unsecured senior notes that have been registered
under the Securities Act, and as the same or such substantially similar
notes may be amended, supplemented, waived or otherwise modified from time
to time in accordance with subsection 8.14 to the extent applicable.
"TYPE": as to any Loan, its nature as an ABR Loan or a
Eurodollar Loan.
"UNDERFUNDING": the excess of the present value of all accrued
benefits under a Plan (based on those assumptions used to fund such Plan),
determined as of the
most recent annual valuation date, over the value of the assets of such
Plan allocable to such accrued benefits.
"UNDERLYING LEASE": with respect to any Mortgaged Leased
Property, the lease agreement under which an interest in such leased
property is held, as the same may be amended, supplemented, waived or
otherwise modified from time to time.
"UNIFORM CUSTOMS": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended from time to time.
"WHOLLY OWNED SUBSIDIARY": as to any Person, any Subsidiary of
such Person of which such Person owns, directly or indirectly through one
or more Wholly Owned Subsidiaries, all of the Capital Stock of such
Subsidiary other than directors qualifying shares or shares held by
nominees.
1.2. OTHER DEFINITIONAL PROVISIONS. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any Notes, any other Loan Document or any certificate or other
document made or delivered pursuant hereto.
(b) As used herein and in any Notes and any other Loan Document, and
any certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to Holding and its Subsidiaries not defined in
subsection 1.1 and accounting terms partly defined in subsection 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1. REVOLVING CREDIT COMMITMENTS. (a) Subject to the terms and conditions
hereof, each Revolving Credit Lender severally agrees to make revolving credit
loans ("REVOLVING CREDIT LOANS") to the Borrower from time to time during the
Revolving Credit Commitment Period in an aggregate principal amount at any one
time outstanding which, when added to such Revolving Credit Lender's Revolving
Credit Commitment Percentage of the sum of the then outstanding L/C Obligations
and the then outstanding Swing Line Loans, does not exceed the amount of such
Lender's Revolving Credit Commitment then in effect. During the Revolving Credit
Commitment Period the Borrower may use the Revolving Credit Commitments by
borrowing,
prepaying the Revolving Credit Loans in whole or in part, and reborrowing, all
in accordance with the terms and conditions hereof.
(b) The Revolving Credit Loans shall be made in Dollars and may from
time to time be (i) Eurodollar Loans, (ii) ABR Loans or (iii) a combination
thereof, as determined by the Borrower and notified to the Administrative Agent
in accordance with subsections 2.2 and 4.2, PROVIDED that no Revolving Credit
Loan shall be made as a Eurodollar Loan after the day that is one month prior to
the Termination Date.
(c) The Borrower agrees that, upon the request to the Administrative
Agent by any Revolving Credit Lender made on or prior to the Closing Date or in
connection with any assignment pursuant to subsection 11.6(c), in order to
evidence such Lender's Revolving Credit Loans the Borrower will execute and
deliver to such Lender a promissory note substantially in the form of Exhibit
A-1, with appropriate insertions as to payee, date and principal amount (each,
as amended, supplemented, replaced or otherwise modified from time to time, a
"REVOLVING CREDIT NOTE"), payable to the order of such Lender and in a principal
amount equal to the aggregate unpaid principal amount of all Revolving Credit
Loans made by such Lender to the Borrower. Each Revolving Credit Note shall (x)
be dated the Closing Date, (y) be stated to mature on the Termination Date and
(z) provide for the payment of interest in accordance with subsection 4.1.
2.2. PROCEDURE FOR REVOLVING CREDIT BORROWING. The Borrower may borrow
under the Revolving Credit Commitments during the Revolving Credit Commitment
Period on any Business Day, PROVIDED that the Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 12:30 P.M., New York City time, at least (a) three
Business Days prior to the requested Borrowing Date, if all or any part of the
requested Revolving Credit Loans are to be initially Eurodollar Loans made in
Dollars or (b) one Business Day prior to the requested Borrowing Date,
otherwise), specifying (i) the amount to be borrowed, (ii) the requested
Borrowing Date, (iii) whether the borrowing is to be of Eurodollar Loans, ABR
Loans or a combination thereof and (iv) if the borrowing is to be entirely or
partly of Eurodollar Loans, the respective amounts of each such Type of Loan,
the respective lengths of the initial Interest Periods therefor. Each borrowing
under the Revolving Credit Commitments shall be in an amount equal to (x) in the
case of ABR Loans, except any ABR Loan to be used solely to pay a like amount of
outstanding Reimbursement Obligations or Swing Line Loans, $2,000,000 or a whole
multiple of $1,000,000 in excess thereof (or, if the then Available Revolving
Credit Commitments are (A) less than $2,000,000, $1,000,000 or a whole multiple
thereof or (B) less than $1,000,000, such lesser amount) and (y) in the case of
Eurodollar Loans, $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. Upon receipt of any such notice from the Borrower, the Administrative
Agent shall promptly notify each Revolving Credit Lender thereof. Subject to the
satisfaction of the conditions precedent specified in subsection 6.2, each
Revolving Credit Lender will make the amount of its PRO RATA share of each
borrowing of Revolving Credit Loans available to the Administrative Agent for
the account of the Borrower identified in such notice at the office of the
Administrative Agent specified in subsection 11.2 prior to 12:30 P.M. (or 10:00
A.M., in the case of the initial borrowing hereunder), New York City time, or at
such other office of the Administrative Agent
or at such other time as to which the Administrative Agent shall notify such
Revolving Credit Lender and the Borrower reasonably in advance of the Borrowing
Date with respect thereto on the Borrowing Date requested by the Borrower in
Dollars and in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower identified in such notice
by the Administrative Agent crediting the account of the Borrower on the books
of such office with the aggregate of the amounts made available to the
Administrative Agent by the Revolving Credit Lenders and in like funds as
received by the Administrative Agent.
2.3. TERMINATION OR REDUCTION OF REVOLVING CREDIT COMMITMENTS. The
Borrower shall have the right, upon not less than three Business Days' notice to
the Administrative Agent (which will promptly notify the Lenders thereof), to
terminate the Revolving Credit Commitments or, from time to time, to reduce the
amount of the Revolving Credit Commitments; PROVIDED that no such termination or
reduction shall be permitted if, after giving effect thereto and to any
prepayments of the Revolving Credit Loans and Swing Line Loans made on the
effective date thereof, the aggregate principal amount of the Revolving Credit
Loans then outstanding, when added to the sum of the then outstanding L/C
Obligations and the then outstanding Swing Line Loans, would exceed the
Revolving Credit Commitments then in effect. Any such reduction shall be in an
amount equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof
and shall reduce permanently the Revolving Credit Commitments then in effect.
2.4. SWING LINE COMMITMENTS. (a) Subject to the terms and conditions
hereof, the Swing Line Lender agrees to make swing line loans (individually, a
"SWING LINE LOAN"; collectively, the "SWING LINE LOANS") to the Borrower from
time to time during the Revolving Credit Commitment Period in an aggregate
principal amount at any one time outstanding not to exceed $20,000,000, PROVIDED
that at no time may the sum of the then outstanding Swing Line Loans, Revolving
Credit Loans and L/C Obligations exceed the Revolving Credit Commitments then in
effect. Amounts borrowed by the Borrower under this subsection 2.4 may be repaid
and, through but excluding the Termination Date, reborrowed. All Swing Line
Loans shall be made as ABR Loans and shall not be entitled to be converted into
Eurodollar Loans. The Borrower (on behalf of itself or such other Borrower, as
the case may be) shall give the Swing Line Lender irrevocable notice (which
notice must be received by the Swing Line Lender prior to 12:00 Noon, New York
City time) on the requested Borrowing Date specifying (i) the identity of the
Borrower and (ii) the amount of the requested Swing Line Loan which shall be in
a minimum amount of $100,000 or whole multiples of $50,000 in excess thereof.
The proceeds of the Swing Line Loan will be made available by the Swing Line
Lender to the Borrower at the office of the Swing Line Lender by crediting the
account of the Borrower at such office with such proceeds in Dollars.
(b) The Borrower agrees that, upon the request to the Administrative
Agent by the Swing Line Lender made on or prior to the Closing Date or in
connection with any assignment pursuant to subsection 11.6(c), in order to
evidence the Swing Line Loans the Borrower will execute and deliver to the Swing
Line Lender a promissory note substantially in the form of Exhibit A-3, with
appropriate insertions (as the same may be amended,
supplemented, replaced or otherwise modified from time to time, the "SWING LINE
NOTE"), payable to the order of the Swing Line Lender and representing the
obligation of the Borrower to pay the amount of the Swing Line Commitment or, if
less, the unpaid principal amount of the Swing Line Loans made to the Borrower,
with interest thereon as prescribed in subsection 4.1. The Swing Line Note shall
(i) be dated the Closing Date, (ii) be stated to mature on the Termination Date
and (iii) provide for the payment of interest in accordance with subsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute
discretion may, and, at any time as there shall be a Swing Line Loan outstanding
for more than seven Business Days, the Swing Line Lender shall, on behalf of the
Borrower to which such Swing Line Loan shall have been made (which hereby
irrevocably directs and authorizes the Swing Line Lender to act on its behalf),
request each Revolving Credit Lender, including the Swing Line Lender, to make a
Revolving Credit Loan as an ABR Loan in an amount equal to such Revolving Credit
Lender's Revolving Credit Commitment Percentage of the principal amount of all
of the Swing Line Loans (the "REFUNDED SWING LINE LOANS") outstanding on the
date such notice is given; PROVIDED that the provisions of this subsection shall
not affect the obligations of the Borrower to prepay Swing Line Loans in
accordance with the provisions of subsection 4.4(c). Unless the Revolving Credit
Commitments shall have expired or terminated (in which event the procedures of
paragraph (d) of this subsection 2.4 shall apply), each Revolving Credit Lender
will make the proceeds of its Revolving Credit Loan available to the
Administrative Agent for the account of the Swing Line Lender at the office of
the Administrative Agent prior to 12:00 Noon, New York City time, in funds
immediately available on the Business Day next succeeding the date such notice
is given. The proceeds of such Revolving Credit Loans shall be immediately
applied to repay the Refunded Swing Line Loans.
(d) If the Revolving Credit Commitments shall expire or terminate at
any time while Swing Line Loans are outstanding, each Revolving Credit Lender
shall, at the option of the Swing Line Lender exercised reasonably, either (i)
notwithstanding the expiration or termination of the Revolving Credit
Commitments, make a Revolving Credit Loan as an ABR Loan (which Revolving Credit
Loan shall be deemed a "Revolving Credit Loan" for all purposes of this
Agreement and the other Loan Documents) or (ii) purchase an undivided
participating interest in such Swing Line Loans, in either case in an amount
equal to such Revolving Credit Lender's Revolving Credit Commitment Percentage
determined on the date of, and immediately prior to, expiration or termination
of the Revolving Credit Commitments of the aggregate principal amount of such
Swing Line Loans. Each Revolving Credit Lender will make the proceeds of any
Revolving Credit Loan made pursuant to the immediately preceding sentence
available to the Administrative Agent for the account of the Swing Line Lender
at the office of the Administrative Agent prior to 12:00 Noon, New York City
time, in funds immediately available on the Business Day next succeeding the
date on which the Revolving Credit Commitments expire or terminate. The proceeds
of such Revolving Credit Loans shall be immediately applied to repay the Swing
Line Loans outstanding on the date of termination or expiration of the Revolving
Credit Commitments. In the event that the Revolving Credit Lenders purchase
undivided participating interests pursuant to the first sentence of this
paragraph (d), each Revolving Credit Lender shall immediately transfer to the
Swing Line Lender, in immediately
available funds, the amount of its participation and upon receipt thereof the
Swing Line Lender will deliver to such Revolving Credit Lender a Swing Line Loan
Participation Certificate dated the date of receipt of such funds and in such
amount.
(e) Whenever, at any time after the Swing Line Lender has received
from any Revolving Credit Lender such Revolving Credit Lender's participating
interest in a Swing Line Loan, the Swing Line Lender receives any payment on
account thereof (whether directly from the Borrower in respect of such Swing
Line Loan or otherwise, including proceeds of Collateral applied thereto by the
Swing Line Lender), or any payment of interest on account thereof, the Swing
Line Lender will, if such payment is received prior to 1:00 p.m., New York City
time, on a Business Day, distribute to such Revolving Credit Lender its pro rata
share thereof prior to the end of such Business Day and otherwise, the Swing
Line Lender will distribute such payment on the next succeeding Business Day,
distribute to such Revolving Credit Lender its participating interest in such
amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Revolving Credit Lender's participating
interest was outstanding and funded); PROVIDED, HOWEVER, that in the event that
such payment received by the Swing Line Lender is required to be returned, such
Revolving Credit Lender will return to the Swing Line Lender any portion thereof
previously distributed by the Swing Line Lender to it.
(f) Each Revolving Credit Lender's obligation to make the Revolving
Credit Loans and to purchase participating interests with respect to Swing Line
Loans in accordance with subsections 2.4(c) and 2.4(d) shall be absolute and
unconditional and shall not be affected by any circumstance, including without
limitation (i) any set-off, counterclaim, recoupment, defense or other right
that such Revolving Credit Lender or the Borrower may have against the Swing
Line Lender, the Borrower or any other Person for any reason whatsoever; (ii)
the occurrence or continuance of a Default or an Event of Default; (iii) any
adverse change in condition (financial or otherwise) of the Borrower; (iv) any
breach of this Agreement or any other Loan Document by the Borrower, any other
Loan Party or any other Revolving Credit Lender; (v) any inability of the
Borrower to satisfy the conditions precedent to borrowing set forth in this
Agreement on the date upon which such Revolving Credit Loan is to be made or
participating interest is to be purchased or (vi) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
2.5. TERM LOANS. (a) Subject to the terms and conditions hereof, each Term
Loan Lender severally agrees to make, in a single draw on the Closing Date, a
term loan (a "TERM LOAN") to the Borrower in an aggregate principal amount not
to exceed the amount set forth opposite such Lender's name in Schedule A under
the heading "Term Loan Commitment". The Term Loans may from time to time be (i)
Eurodollar Loans in Dollars, (ii) ABR Loans or (iii) a combination thereof, as
determined by the Borrower and notified to the Administrative Agent in
accordance with subsections 2.7 and 4.2. The portion of each Term Loan Lender's
Term Loan Commitment which is not utilized on the Closing Date shall be
automatically and permanently cancelled.
(b) The Borrower agrees that, upon the request to the Administrative
Agent by any Term Loan Lender made on or prior to the Closing Date or in
connection with any assignment pursuant to subsection 11.6(c), in order to
evidence such Lender's Term Loan the
Borrower will execute and deliver to such Lender a promissory note substantially
in the form of Exhibit A-2 (each, as amended, supplemented, replaced or
otherwise modified from time to time, a "TERM NOTE"), with appropriate
insertions therein as to payee, date and principal amount, payable to the order
of such Term Loan Lender and in a principal amount equal to the lesser of (a)
the amount set forth opposite such Term Loan Lender's name on Schedule A under
the heading "Term Loan Commitment" and (b) the unpaid principal amount of the
Term Loans made by such Term Loan Lender to the Borrower. Each Term Note shall
(i) be dated the Closing Date, (ii) be payable as provided in subsection 2.6 and
(iii) provide for the payment of interest in accordance with subsection 4.1.
2.6. AMORTIZATION OF TERM LOANS. The aggregate Term Loans of all the Term
Loan Lenders shall be payable in consecutive semi-annual installments, on the
dates and in the principal amounts equal to the respective amounts set forth
below (together with all accrued interest thereon) opposite the applicable
installment date (or, if less, the aggregate amount of the Term Loans then
outstanding):
Date Amount
---- ------
June 30, 2003 $37,500,000
December 31, 2003 $37,500,000
June 30, 2004 $37,500,000
December 31, 2004 $37,500,000
June 30, 2005 $46,250,000
December 31, 2005 $46,250,000
June 30, 2006 $46,250,000
December 31, 2006 $46,250,000
; PROVIDED, that if the Termination Date is deemed to be December 31, 2005 in
accordance with the definition thereof, the aggregate principal amount of the
Term Loans outstanding at such date, shall be payable on such Termination Date.
2.7. PROCEDURE FOR TERM LOAN BORROWING. The Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 12:30 P.M., New York City time, at least (a) three
Business Days prior to the Closing Date, if all or any part of the Term Loans
are to be initially Eurodollar Loans or (b) one Business Day prior to the
Closing Date, in all other cases requesting that the Term Loan Lenders make the
Term Loans on the Closing Date and specifying (i) the amount to be borrowed,
(ii) whether the Term Loans are to be initially Eurodollar Loans, ABR Loans or a
combination thereof, and (iii) if the Term Loans are to be entirely or partly
Eurodollar Loans, the respective amounts of each such Type of Loan and the
respective lengths of the initial Interest Periods therefor. Upon receipt of
such notice the Administrative Agent shall promptly notify each Term Loan Lender
thereof. Each Term Loan Lender will make the amount of its pro rata share of the
Term Loans available to the Administrative Agent for the account of the Borrower
at the office of the Administrative Agent specified in subsection 11.2 prior to
10:00 A.M., New York City time, on the Closing Date in Dollars and in funds
immediately available to the Administrative Agent. The
Administrative Agent shall on such date credit the account of the Borrower on
the books of such office of the Administrative Agent with the aggregate of the
amounts made available to the Administrative Agent by the Term Loan Lenders and
in like funds as received by the Administrative Agent.
2.8. REPAYMENT OF LOANS. (a) The Borrower hereby unconditionally promises
to pay to the Administrative Agent for the account of: (i) each Revolving Credit
Lender, the then unpaid principal amount of each Revolving Credit Loan of such
Lender made to the Borrower, on the Termination Date (or such earlier date on
which the Revolving Credit Loans become due and payable pursuant to Section 9);
(ii) the Swing Line Lender, the then unpaid principal amount of the Swing Line
Loans made to the Borrower, on the Termination Date (or such earlier date on
which the Swing Line Loans become due and payable pursuant to Section 9); and
(iii) each Term Loan Lender, the amounts specified in subsection 2.6 (or, if
less in any case, the aggregate amount of the Term Loans made to the Borrower
then outstanding), on the dates set forth in subsection 2.6 (or such earlier
date on which the Term Loans become due and payable pursuant to Section 9). The
Borrower hereby further agrees to pay interest on the unpaid principal amount of
the Loans from time to time outstanding from the date hereof until payment in
full thereof at the rates per annum, and on the dates, set forth in subsection
4.1.
(b) Each Lender (including the Swing Line Lender) shall maintain in
accordance with its usual practice an account or accounts evidencing
indebtedness of the Borrower to such Lender resulting from each Loan of such
Lender from time to time, including, without limitation, the amounts of
principal and interest payable and paid to such Lender from time to time under
this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 11.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Loan made hereunder, the Type thereof and each
Interest Period, if any, applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) both the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 2.8(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; PROVIDED, HOWEVER, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
the Borrower by such Lender in accordance with the terms of this Agreement.
SECTION 3. LETTERS OF CREDIT
3.1. L/C COMMITMENT. (a) Subject to the terms and conditions hereof, the
Issuing Lender, in reliance on the agreements of the other Revolving Credit
Lenders set forth in
subsection 3.4(a), agrees to issue letters of credit ("LETTERS OF CREDIT") for
the account of the Borrower on any Business Day during the Revolving Credit
Commitment Period in such form as may be approved from time to time by the
Issuing Lender; PROVIDED that the Issuing Lender shall not issue any Letter of
Credit if, after giving effect to such issuance, (i) the L/C Obligations in
respect of Letters of Credit would exceed $75,000,000 or (ii) the Aggregate
Outstanding Revolving Credit of all the Revolving Credit Lenders would exceed
the Revolving Credit Commitments of all the Revolving Credit Lenders then in
effect. Each Letter of Credit shall (i) be denominated in Dollars and shall be
either (x) a standby letter of credit issued to support obligations of the
Borrower or any of its Subsidiaries, contingent or otherwise, which finance the
working capital and business needs of the Borrower and its Subsidiaries incurred
in the ordinary course of business (a "STANDBY LETTER OF CREDIT"), or (y) a
commercial letter of credit in respect of the purchase of goods or services by
the Borrower or any of its Subsidiaries in the ordinary course of business (a
"COMMERCIAL LETTER OF CREDIT"), (ii) expire no later than five days prior to the
Termination Date (which, prior to the refinancing of the 1996 Senior Notes on
terms substantially similar to, or more favorable to the Borrower and its
Subsidiaries than, the terms governing the 1996 Senior Notes and providing for a
scheduled maturity date of no earlier than January 1, 2008, shall be deemed for
the purposes of this clause (ii) to be December 31, 2005) and (iii) unless
otherwise agreed by the Administrative Agent, expire no later than 365 days
after its date of issuance in the case of Standby Letters of Credit, and 180
days after its date of issuance in the case of Commercial Letters of Credit.
(b) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the State of New
York.
(c) The Issuing Lender shall not at any time issue any Letter of
Credit hereunder if such issuance would conflict with, or cause the Issuing
Lender or any L/C Participant to exceed any limits imposed by, any applicable
Requirement of Law.
3.2. PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT. The Borrower may from
time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender, at its address for notices specified herein,
an Application therefor, completed to the reasonable satisfaction of the Issuing
Lender, and such other certificates, documents and other papers and information
as the Issuing Lender may reasonably request. Upon receipt of any Application,
the Issuing Lender will process such Application and the certificates, documents
and other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall promptly issue the Letter of
Credit requested thereby (but in no event shall the Issuing Lender be required
to issue any Letter of Credit earlier than three Business Days after its receipt
of the Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed by the
Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of such
Letter of Credit to the Borrower promptly following the issuance thereof. The
Issuing Lender shall promptly furnish to the Administrative Agent, which shall
in turn promptly furnish to the Lenders, notice of the issuance of each Letter
of Credit (including the amount thereof).
3.3. FEES, COMMISSIONS AND OTHER CHARGES. (a) The Borrower shall pay to
the Administrative Agent, for the account of the Issuing Lender and the L/C
Participants, a letter of credit commission with respect to each Letter of
Credit, computed for the period from and including the date of issuance of such
Letter of Credit to the expiration date of such Letter of Credit, computed at a
rate per annum equal to the Applicable Margin then in effect for Eurodollar
Loans that are Revolving Credit Loans calculated on the basis of a 365- (or
366-, as the case may be) day year, of the aggregate amount available to be
drawn under such Letter of Credit, payable quarterly in arrears on each L/C Fee
Payment Date with respect to such Letter of Credit and on the Termination Date
or such earlier date as the Revolving Credit Commitments shall terminate as
provided herein. Such commission shall be payable to the Administrative Agent
for the account of the Revolving Credit Lenders to be shared ratably among them
in accordance with their respective Revolving Credit Commitment Percentages. The
Borrower shall also pay to the Administrative Agent, for the account of the
Issuing Lender, a fee equal to 1/4 of 1% per annum of the aggregate amount
available to be drawn under such Letter of Credit, payable quarterly in arrears
on each L/C Fee Payment Date with respect to such Letter of Credit and on the
Termination Date or such other date as the Revolving Credit Commitments shall
terminate. Such commissions and fees shall be nonrefundable. Such fees and
commissions shall be payable in Dollars.
(b) In addition to the foregoing commissions and fees, the Borrower
shall pay or reimburse the Issuing Lender for such normal and customary costs
and expenses as are incurred or charged by the Issuing Lender in issuing,
effecting payment under, amending or otherwise administering any Letter of
Credit.
(c) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the Issuing Lender and the L/C Participants all
commissions and fees received by the Administrative Agent for their respective
accounts pursuant to this subsection.
3.4. L/C PARTICIPATIONS. (a) The Issuing Lender irrevocably agrees to
grant and hereby grants to each L/C Participant, and, to induce the Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the Issuing
Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Credit Commitment Percentage (determined on the date of
issuance of the relevant Letter of Credit) in the Issuing Lender's obligations
and rights under each Letter of Credit issued hereunder and the amount of each
draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Borrower in respect of such Letter or Credit in
accordance with subsection 3.5(a), such L/C Participant shall pay to the Issuing
Lender upon demand at the Issuing Lender's address for notices specified herein
an amount equal to such L/C Participant's Revolving Credit Commitment Percentage
of the amount of such draft, or any part thereof, which is not so reimbursed;
PROVIDED that nothing in this paragraph shall relieve the Issuing Lender of any
liability resulting from the gross negligence or willful misconduct of the
Issuing Lender, or otherwise affect any defense or other
right that any L/C Participant may have as a result of such gross negligence or
willful misconduct.
(b) If any amount required to be paid by any L/C Participant to the
Issuing Lender on demand by the Issuing Lender pursuant to subsection 3.4(a) in
respect of any unreimbursed portion of any payment made by the Issuing Lender
under any Letter of Credit is paid to the Issuing Lender within three Business
Days after the date such demand is made, such L/C Participant shall pay to the
Issuing Lender on demand an amount equal to the product of such amount, times
the daily average Federal Funds Effective Rate during the period from and
including the date such payment is required to the date on which such payment is
immediately available to the Issuing Lender, times a fraction the numerator of
which is the number of days that elapse during such period and the denominator
of which is 360. If any such amount required to be paid by any L/C Participant
pursuant to subsection 3.4(a) is not in fact made available to the Issuing
Lender by such L/C Participant within three Business Days after the date such
payment is due, the Issuing Lender shall be entitled to recover from such L/C
Participant, on demand, such amount with interest thereon calculated from such
due date at the rate per annum applicable to ABR Loans hereunder. A certificate
of the Issuing Lender submitted to any L/C Participant with respect to any
amounts owing under this subsection (which shall include calculations of any
such amounts in reasonable detail) shall be conclusive in the absence of
manifest error.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with subsection 3.4(a), the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower in respect of such Letter of Credit or otherwise, including
proceeds of Collateral applied thereto by the Issuing Lender), or any payment of
interest on account thereof, the Issuing Lender will, if such payment is
received prior to 1:00 P.M., New York City time, on a Business Day, distribute
to such L/C Participant its pro rata share thereof prior to the end of such
Business Day and otherwise the Issuing Lender will distribute such payment on
the next succeeding Business Day; PROVIDED, HOWEVER, that in the event that any
such payment received by the Issuing Lender shall be required to be returned by
the Issuing Lender, such L/C Participant shall return to the Issuing Lender the
portion thereof previously distributed by the Issuing Lender to it.
3.5. REIMBURSEMENT OBLIGATION OF THE BORROWER. (a) The Borrower agrees to
reimburse the Issuing Lender, upon receipt by the Borrower of notice from the
Issuing Lender of the date and amount of a draft presented under any Letter of
Credit and paid by the Issuing Lender, for the amount of such draft so paid and
any taxes, fees, charges or other costs or expenses reasonably incurred by the
Issuing Lender in connection with such payment. Each such payment shall be made
to the Issuing Lender, at its address for notices specified herein in Dollars
and in immediately available funds, on the date on which the Borrower receives
such notice, if received prior to 11:00 A.M., New York City time, on a Business
Day and otherwise on the next succeeding Business Day.
(b) Interest shall be payable on any and all amounts remaining
unpaid by the Borrower under this subsection (i) from the date the draft
presented under the affected Letter of Credit is paid to the date on which the
Borrower is required to pay such amounts pursuant to paragraph (a) above at the
rate which would then be payable on any outstanding ABR Loans that are Revolving
Credit Loans and (ii) thereafter until payment in full at the rate which would
be payable on any outstanding ABR Loans that are Term Loans which were then
overdue.
3.6. OBLIGATIONS ABSOLUTE. (a) Each of the Borrower's obligations under
this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which the Borrower may have or have had against the Issuing Lender, any
L/C Participant or any beneficiary of a Letter of Credit, PROVIDED that this
paragraph shall not relieve the Issuing Lender or any L/C Participant of any
liability resulting from the gross negligence or willful misconduct of the
Issuing Lender or such L/C Participant, or otherwise affect any defense or other
right that the Borrower may have as a result of any such gross negligence or
willful misconduct.
(b) The Borrower also agrees with the Issuing Lender that the
Issuing Lender and the L/C Participants shall not be responsible for, and the
Borrower's Reimbursement Obligations under subsection 3.5(a) shall not be
affected by, among other things, the validity or genuineness of documents or of
any endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among the Borrower and
any beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or any claims whatsoever of the Borrower against
any beneficiary of such Letter of Credit or any such transferee, PROVIDED that
this paragraph shall not relieve the Issuing Lender or any L/C Participant of
any liability resulting from the gross negligence or willful misconduct of the
Issuing Lender or such L/C Participant, or otherwise affect any defense or other
right that the Borrower may have as a result of any such gross negligence or
willful misconduct.
(c) Neither the Issuing Lender nor any L/C Participant shall be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with
any Letter of Credit, except for errors or omissions caused by such Person's
gross negligence or willful misconduct.
(d) The Borrower agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the Uniform
Commercial Code of the State of New York, shall be binding on the Borrower and
shall not result in any liability of the Issuing Lender or any L/C Participant
to the Borrower.
3.7. LETTER OF CREDIT PAYMENTS. If any draft shall be presented for
payment under any Letter of Credit, the Issuing Lender shall promptly notify the
Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in respect of any Letter of Credit in connection with any
draft presented for payment under such Letter of Credit shall, in addition to
any payment obligation expressly provided for in such Letter of Credit, be
limited to
determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are in conformity with such
Letter of Credit, provided that this paragraph shall not relieve the Issuing
Lender of any liability resulting from the gross negligence or willful
misconduct of the Issuing Lender, or otherwise affect any defense or other right
that the Borrower may have as a result of any such gross negligence or willful
misconduct.
3.8. APPLICATION. To the extent that any provision of any Application
related to any Letter of Credit is inconsistent with the provisions of this
Section 3, the provisions of this Section 3 shall apply.
SECTION 4. GENERAL PROVISIONS APPLICABLE TO
LOANS AND LETTERS OF CREDIT
4.1. INTEREST RATES AND PAYMENT DATES. (a) Each Eurodollar Loan shall bear
interest for each day during each Interest Period with respect thereto at a rate
per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin in effect for such day.
(b) Each ABR Loan shall bear interest for each day that it is
outstanding at a rate per annum equal to the ABR for such day plus the
Applicable Margin in effect for such day.
(c) If all or a portion of (i) the principal amount of any Loan,
(ii) any interest payable thereon or (iii) any commitment fee, letter of credit
commission, letter of credit fee or other amount payable hereunder shall not be
paid when due (whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall bear interest at a rate per annum which is (x) in the
case of overdue principal, the rate that would otherwise be applicable thereto
if such overdue principal constituted principal of a Term Loan pursuant to the
relevant foregoing provisions of this subsection plus 2.00% or (y) in the case
of overdue interest, fees, commissions or other amounts, the rate described in
paragraph (b) of this subsection for ABR Loans that are Term Loans plus 2.00%,
in each case from the date of such non-payment until such amount is paid in full
(as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, PROVIDED that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
(e) It is the intention of the parties hereto to comply strictly
with applicable usury laws; accordingly, it is stipulated and agreed that the
aggregate of all amounts which constitute interest under applicable usury laws,
whether contracted for, charged, taken, reserved, or received, in connection
with the indebtedness evidenced by this Agreement or any Notes, or any other
document relating or referring hereto or thereto, now or hereafter existing,
shall never exceed under any circumstance whatsoever the maximum amount of
interest allowed by applicable usury laws.
4.2. CONVERSION AND CONTINUATION OPTIONS. (a) The Borrower may elect from
time to time to convert outstanding Term Loans and Revolving Credit Loans from
Eurodollar Loans
made or outstanding in Dollars to ABR Loans by giving the Administrative Agent
at least two Business Days' prior irrevocable notice of such election, PROVIDED
that any such conversion of Eurodollar Loans made or outstanding in Dollars may
only be made on the last day of an Interest Period with respect thereto. The
Borrower may elect from time to time to convert outstanding Term Loans and
Revolving Credit Loans from ABR Loans to Eurodollar Loans made or outstanding in
Dollars by giving the Administrative Agent at least three Business Days' prior
irrevocable notice of such election. Any such notice of conversion to Eurodollar
Loans outstanding in Dollars shall specify the length of the initial Interest
Period or Interest Periods therefor. Upon receipt of any such notice the
Administrative Agent shall promptly notify each affected Lender thereof. All or
any part of outstanding Eurodollar Loans made or outstanding in Dollars and ABR
Loans may be converted as provided herein, PROVIDED that (i) (unless the
Required Lenders otherwise consent) no Loan may be converted into a Eurodollar
Loan when any Default or Event of Default has occurred and is continuing and, in
the case of any Default, the Administrative Agent has given notice to the
Borrower that no such conversions may be made and (ii) no Loan may be converted
into a Eurodollar Loan after the date that is one month prior to the Termination
Date.
(b) Any Eurodollar Loan may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower giving
notice to the Administrative Agent of the length of the next Interest Period to
be applicable to such Loan, determined in accordance with the applicable
provisions of the term "Interest Period" set forth in subsection 1.1, PROVIDED
that no Eurodollar Loan may be continued as such (i) (unless the Required
Lenders otherwise consent) when any Default or Event of Default has occurred and
is continuing and, in the case of any Default, the Administrative Agent has
given notice to the Borrower that no such continuations may be made or (ii)
after the date that is one month prior to the Termination Date, and PROVIDED,
FURTHER, that if the Borrower shall fail to give any required notice as
described above in this paragraph or if such continuation is not permitted
pursuant to the preceding proviso such Eurodollar Loans shall be automatically
converted to ABR Loans on the last day of such then expiring Interest Period or
if such continuation is not permitted pursuant to clause (i) of the preceding
proviso, such Eurodollar Loans will be continued for the shortest available
Interest Periods as determined by the Administrative Agent. Upon receipt of any
such notice of continuation pursuant to this subsection 4.2(b), the
Administrative Agent shall promptly notify each affected Lender thereof.
4.3. MINIMUM AMOUNTS OF SETS. All borrowings, conversions and
continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of the
Eurodollar Loans outstanding comprising each Set shall be equal to $5,000,000 or
a whole multiple of $1,000,000 in excess thereof and there shall not be more
than 20 Sets at any one time outstanding.
4.4. OPTIONAL AND MANDATORY PREPAYMENTS. (a) The Borrower may at any time
and from time to time prepay the Loans made to it and the Reimbursement
Obligations in respect of Letters of Credit issued for its account, in whole or
in part, without premium or penalty, upon at least three Business Days'
irrevocable notice by the Borrower to the Administrative Agent (in
the case of Eurodollar Loans and Reimbursement Obligations outstanding in
Dollars), at least one Business Day's irrevocable notice by the Borrower to the
Administrative Agent (in the case of ABR Loans other than Swing Line Loans) or
same-day irrevocable notice by the Borrower to the Administrative Agent (in the
case of Swing Line Loans), specifying, in the case of any prepayment of Loans,
the date and amount of prepayment and whether the prepayment is (i) of Term
Loans, Revolving Credit Loans or Swing Line Loans, or a combination thereof, and
(ii) of Eurodollar Loans, ABR Loans or a combination thereof, and, in each case
if a combination thereof, the principal amount allocable to each and, in the
case of any prepayment of Reimbursement Obligations, the date and amount of
prepayment, the identity of the applicable Letter of Credit or Letters of Credit
and the amount allocable to each of such Reimbursement Obligations. Upon the
receipt of any such notice the Administrative Agent shall promptly notify each
affected Lender thereof. If any such notice is given, the amount specified in
such notice shall be due and payable on the date specified therein, together
with (if a Eurodollar Loan is prepaid other than at the end of the Interest
Period applicable thereto) any amounts payable pursuant to subsection 4.12 and,
in the case of prepayments of the Term Loans only, accrued interest to such date
on the amount prepaid. Partial prepayments of (i) the Term Loans pursuant to
this subsection shall be applied PRO RATA to the respective installments of
principal thereof, PROVIDED that any such payment made within twelve months
prior to the date on which an installment of principal thereof is scheduled to
be made may, at the option of the Borrower, be applied first to such
installment, and (ii) the Revolving Credit Loans and the Reimbursement
Obligations pursuant to this subsection shall (unless the Borrower otherwise
directs) be applied, FIRST, to payment of the Swing Line Loans then outstanding,
SECOND, to payment of the Revolving Credit Loans then outstanding, THIRD, to
payment of any Reimbursement Obligations then outstanding and, LAST, to cash
collateralize any outstanding L/C Obligation on terms reasonably satisfactory to
the Administrative Agent. Partial prepayments pursuant to this subsection 4.4(a)
shall be in an aggregate principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof.
(b) If on or after the Closing Date (i) the Borrower or any of its
Subsidiaries shall incur Indebtedness for borrowed money (other than
Indebtedness permitted pursuant to subsection 8.2, except as otherwise specified
in subsection 8.2) pursuant to a public offering or private placement or
otherwise or (ii) the Borrower or any of its Subsidiaries shall make an Asset
Sale pursuant to subsection 8.6(i) or (iii) a Recovery Event occurs, then, in
each case, the Borrower shall prepay, in accordance with subsection 4.4(e), the
Loans and cash collateralize the L/C Obligations in an amount equal to (x) in
the case of the incurrence of any such Indebtedness, 100% of the Net Cash
Proceeds thereof; and (y) in the case of any such Asset Sale or Recovery Event,
100% of the Net Cash Proceeds thereof minus (1) any Reinvested Amounts and (2)
amounts, if any, required to be used to prepay Existing RIC Holding Indebtedness
(and not permitted by the agreements governing the Existing RIC Holding
Indebtedness to be used to prepay Indebtedness under this Agreement and the
other Loan Documents) in accordance with the terms thereof as in effect on the
Closing Date, in each case with such prepayment to be made on the Business Day
following the date of receipt of any such Net Cash Proceeds (except that, in the
case of clause (y), if any such Net Cash Proceeds are eligible to be reinvested
in accordance with the definition of the term "Reinvested Amount" in subsection
1.1 and the Borrower has not
elected to reinvest such proceeds, such prepayment to be made on the earlier of
(1) the date on which the certificate of a Responsible Officer of the Borrower
to such effect is delivered to the Administrative Agent in accordance with such
definition and (2) the last day of the period within which a certificate setting
forth such election is required to be delivered in accordance with such
definition). Nothing in this paragraph (b) shall limit the rights of the
Administrative Agent and the Lenders set forth in Section 9.
(c) The Borrower shall prepay all Swing Line Loans then outstanding
simultaneously with each borrowing of Revolving Credit Loans.
(d) If the Borrower or any of its Subsidiaries enters into any
Permitted Receivables Transaction, on the next Business Day the Borrower shall
prepay the Revolving Credit Loans and Swing Line Loans and cash collateralize
the L/C Obligations in an aggregate amount equal to the Permitted Receivables
Transaction Revolving Credit Prepayment Amount in respect of such Permitted
Receivables Transaction; PROVIDED that if, on any date the amount by which the
Base Amount is reduced by reference to such Permitted Receivables Transaction is
in excess of the Permitted Receivables Transaction Revolving Credit Prepayment
Amount (together with any prior prepayments pursuant to this proviso), on the
next Business Day the Borrower shall make an additional prepayment of the
Revolving Credit Loans and Swing Line Loans and cash collateralize the L/C
Obligations in an aggregate amount equal to such excess.
(e) Prepayments pursuant to subsection 4.4(b) shall be applied,
first, to prepay Term Loans then outstanding, second, to prepay Swing Line Loans
then outstanding, third, to prepay Revolving Credit Loans then outstanding,
fourth, to pay any Reimbursement Obligations then outstanding and, last, to cash
collateralize any outstanding L/C Obligations on terms reasonably satisfactory
to the Administrative Agent. Prepayments of Term Loans pursuant to subsection
4.4(b) shall be applied pro rata to the respective installments of principal
thereof, PROVIDED, HOWEVER, that any such payment made within twelve months
prior to the date on which an installment of the principal thereof is scheduled
to be made may, at the option of the Borrower with respect to the Term Loans be
applied to such installment.
(f) Amounts prepaid on account of Term Loans pursuant to subsection
4.4(a) or 4.4(b) may not be reborrowed.
(g) The Revolving Credit Commitments shall be permanently reduced by
the amount of all prepayments of Revolving Credit Loans, payments of
Reimbursement Obligations and cash collateralizations of L/C Obligations, in
each case, made under subsection 4.4(b) or subsection 4.4(d) (except that the
amount of any reduction of the Revolving Credit Commitments then in effect
resulting from any prepayment required by the proviso of subsection 4.4(d), (i)
shall not be permanent and may be restored so long as after giving effect to any
such restoration the aggregate net reduction of the Revolving Credit Commitments
then in effect attributable to Permitted Receivables Transactions shall be at
least equal to the then applicable reductions to the Base Amount attributable to
Permitted Receivables Transactions and (ii) in any case, shall be disregarded
for purposes of calculating Available Revolving Credit Commitments pursuant to
subsection 4.5(a)).
(h) Notwithstanding the foregoing provisions of this subsection 4.4,
if at any time any prepayment of the Loans pursuant to subsection 4.4(b) or
4.4(d) would result, after giving effect to the procedures set forth in this
Agreement, in the Borrower incurring breakage costs under subsection 4.12 as a
result of Eurodollar Loans being prepaid other than on the last day of an
Interest Period with respect thereto, then, the Borrower may, so long as no
Default or Event of Default shall have occurred and be continuing, in its sole
discretion, initially (x) deposit a portion (up to 100%) of the amounts that
otherwise would have been paid in respect of such Eurodollar Loans with the
Administrative Agent (which deposit must be equal in amount to the amount of
such Eurodollar Loans not immediately prepaid) to be held as security for the
obligations of the Borrower to make such prepayment pursuant to a cash
collateral agreement to be entered into on terms reasonably satisfactory to the
Administrative Agent, with such cash collateral to be directly applied upon the
first occurrence thereafter of the last day of an Interest Period with respect
to such Eurodollar Loans (or such earlier date or dates as shall be requested by
the Borrower) or (y) make a prepayment of the Revolving Credit Loans in
accordance with subsection 4.4(a) with an amount equal to a portion (up to 100%)
of the amounts that otherwise would have been paid in respect of such Eurodollar
Loans (which prepayment, together with any deposits pursuant to clause (x)
above, must be equal in amount to the amount of such Eurodollar Loans not
immediately prepaid); PROVIDED that, notwithstanding anything in this Agreement
to the contrary, the Borrower may not request any Extension of Credit under the
Revolving Credit Commitments that would reduce the aggregate amount of the
Available Revolving Credit Commitments to an amount that is less than the amount
of such prepayment until the related portion of such Eurodollar Loans have been
prepaid upon the first occurrence thereafter of the last day of an Interest
Period with respect to such Eurodollar Loans; PROVIDED that, in the case of
either clause (x) or (y), such unpaid Eurodollar Loans shall continue to bear
interest in accordance with subsection 4.1 until such unpaid Eurodollar Loans or
the related portion of such Eurodollar Loans, as the case may be, have or has
been prepaid.
4.5. COMMITMENT FEES; ADMINISTRATIVE AGENT'S FEE; OTHER FEES. (a) The
Borrower agrees to pay to the Administrative Agent for the account of each
Revolving Credit Lender, a commitment fee for the period from and including the
first day of the Revolving Credit Commitment Period to the Termination Date,
computed at the rate of 1/2 of 1% per annum on the average daily amount of the
Available Revolving Credit Commitment of such Lender during the period for which
payment is made, payable quarterly in arrears on the last day of each March,
June, September and December and on the Termination Date or such earlier date as
the Revolving Credit Commitments shall terminate as provided herein, commencing
on September 30, 2001.
(b) The Borrower agrees to pay to the Administrative Agent and the
Other Representatives any fees in the amounts and on the dates previously agreed
to in writing by the Borrower, the Other Representatives and the Administrative
Agent in connection with this Agreement.
4.6. COMPUTATION OF INTEREST AND FEES. (a) Interest (other than interest
based on the Prime Rate) shall be calculated on the basis of a 360-day year for
the actual days elapsed; and commitment fees and interest based on the Prime
Rate shall be calculated on the basis of a 365-
(or 366-, as the case may be) day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and the
affected Lenders of each determination of a Eurodollar Rate. Any change in the
interest rate on a Loan resulting from a change in the ABR, the Eurodollar
Reserve Requirements, the C/D Assessment Rate or the C/D Reserve Percentage
shall become effective as of the opening of business on the day on which such
change becomes effective. The Administrative Agent shall as soon as practicable
notify the Borrower and the affected Lenders of the effective date and the
amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower or any Lender,
deliver to the Borrower or such Lender a statement showing in reasonable detail
the calculations used by the Administrative Agent in determining any interest
rate pursuant to subsection 4.1.
4.7. INABILITY TO DETERMINE INTEREST RATE. If prior to the first day of
any Interest Period, the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by reason
of circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate with respect to any Eurodollar
Loan (the "AFFECTED EURODOLLAR RATE") for such Interest Period, the
Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (A) any affected Eurodollar Loans the rate of interest applicable to which
is based upon the Affected Eurodollar Rate requested to be made on the first day
of such Interest Period shall be made as ABR Loans (to the extent otherwise
permitted by subsection 4.2), (B) any outstanding Loans, as applicable, that
were to have been converted on the first day of such Interest Period to or
continued as Eurodollar Loans the rate of interest applicable to which is based
upon the Affected Eurodollar Rate shall be converted to or continued as ABR
Loans (to the extent otherwise permitted by subsection 4.2) and (C) any
outstanding Eurodollar Loans that were to have been converted on the first day
of such Interest Period to or continued as Eurodollar Loans the rate of interest
applicable to which is based upon the Affected Eurodollar Rate and that are not
otherwise permitted to be converted to or continued as ABR Loans by subsection
4.2 shall, upon demand by the Revolving Credit Lenders the Revolving Credit
Commitment Percentage of which aggregate at least 51%, be immediately repaid by
the Borrower on the last day of the then current Interest Period with respect
thereto together with accrued interest thereon or otherwise, at the option of
the Borrower, shall remain outstanding and bear interest at a rate which
reflects, as to each of the Revolving Credit Lenders, such Revolving Credit
Lender's cost of funding such Eurodollar Loans, as reasonably determined by such
Revolving Credit Lender, plus the Applicable Margin hereunder. If any such
repayment occurs on a day which is not the last day of the then current Interest
Period with respect to such affected Eurodollar Loan, the Borrower shall pay to
each of the Revolving Credit Lenders such amounts, if any, as may be required
pursuant to subsection 4.12. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans the rate of interest
applicable to which is based upon the Affected Eurodollar Rate shall be made
or continued as such, nor shall the Borrower have the right to convert ABR Loans
to Eurodollar Loans the rate of interest applicable to which is based upon the
Affected Eurodollar Rate.
4.8. PRO RATA TREATMENT AND PAYMENTS. (a) Each borrowing of Revolving
Credit Loans (other than Swing Line Loans) by the Borrower from the Lenders
hereunder shall be made, each payment by the Borrower on account of any
commitment fee in respect of the Revolving Credit Commitments hereunder shall be
allocated by the Administrative Agent, and any reduction of the Revolving Credit
Commitments of the Lenders shall be allocated by the Administrative Agent, PRO
RATA according to the relevant Revolving Credit Commitment Percentages of the
Lenders. Each payment (including each prepayment) by the Borrower on account of
principal of and interest on any Revolving Credit Loans shall be allocated by
the Administrative Agent PRO RATA according to the respective outstanding
principal amounts of such Revolving Credit Loans then held by the Revolving
Credit Lenders. Each payment (including each prepayment) by the Borrower on
account of principal of and interest on any Term Loans shall be allocated by the
Administrative Agent pro rata according to the respective outstanding principal
amounts of the Term Loans then held by the Term Loan Lenders. All payments
(including prepayments) to be made by the Borrower hereunder, whether on account
of principal, interest, fees, Reimbursement Obligations or otherwise, shall be
made without set-off or counterclaim and shall be made prior to 1:00 P.M., New
York City time, on the due date thereof to the Administrative Agent, for the
account of the Lenders holding the relevant Loans or the L/C Participants, as
the case may be, at the Administrative Agent's office specified in subsection
11.2, in Dollars and in immediately available funds. Payments received by the
Administrative Agent after such time shall be deemed to have been received on
the next Business Day. The Administrative Agent shall distribute such payments
to such Lenders, if any such payment is received prior to 1:00 P.M., New York
City time, on a Business Day, in like funds as received prior to the end of such
Business Day and otherwise the Administrative Agent shall distribute such
payment to such Lenders on the next succeeding Business Day. If any payment
hereunder (other than payments on the Eurodollar Loans) becomes due and payable
on a day other than a Business Day, the maturity of such payment shall be
extended to the next succeeding Business Day, and, with respect to payments of
principal, interest thereon shall be payable at the then applicable rate during
such extension. If any payment on a Eurodollar Loan becomes due and payable on a
day other than a Business Day, the maturity of such payment shall be extended to
the next succeeding Business Day (and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension) unless the result of such extension would be to extend such payment
into another calendar month, in which event such payment shall be made on the
immediately preceding Business Day.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its Revolving Credit Commitment Percentage or Term
Loan Percentage, as the case may be, of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower in
respect of such borrowing a corresponding amount. If such amount is not made
available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate, as quoted by the Administrative Agent, in each case for the period until
such Lender makes such amount immediately available to the Administrative Agent.
A certificate of the Administrative Agent submitted to any Lender with respect
to any amounts owing under this subsection shall be conclusive in the absence of
manifest error. If such Lender's Revolving Credit Commitment Percentage or Term
Loan Percentage, as the case may be, of such borrowing is not made available to
the Administrative Agent by such Lender within three Business Days of such
Borrowing Date, (x) the Administrative Agent shall notify the Borrower of the
failure of such Lender to make such amount available to the Administrative Agent
and the Administrative Agent shall also be entitled to recover such amount with
interest thereon at the rate per annum applicable to ABR Loans hereunder plus
the Applicable Margin hereunder, on demand, from the Borrower and (y) then the
Borrower may, without waiving or limiting any rights or remedies it may have
against such Lender hereunder or under applicable law or otherwise, (i) borrow a
like amount on an unsecured basis from any commercial bank for a period ending
on the date upon which such Lender does in fact make such borrowing available,
PROVIDED that at the time such borrowing is made and at all times while such
amount is outstanding the Borrower would be permitted to borrow such amount
pursuant to subsection 2.1 and/or (ii) take any action permitted by the
following subsection 4.8(c).
(c) Notwithstanding anything contained in this Agreement:
(i) If at any time a Revolving Credit Lender shall not make a
Revolving Credit Loan required to be made by it hereunder (any such Lender, a
"Defaulting Lender"), the Borrower shall have the right to seek one or more
Persons reasonably satisfactory to the Administrative Agent and the Borrower to
each become a substitute Revolving Credit Lender and assume all or part of the
Revolving Credit Commitment of such Defaulting Lender. In such event, the
Borrower, the Administrative Agent and any such substitute Revolving Credit
Lender shall execute and deliver, and such Defaulting Lender shall thereupon be
deemed to have executed and delivered, an appropriately completed Assignment and
Acceptance to effect such substitution.
(ii) In determining the Required Collateral Release Lenders or
Required Lenders, any Lender that at the time is a Defaulting Lender (and the
Loans, Revolving Credit Commitment and/or Term Loan Commitments of such
Defaulting Lender) shall be excluded and disregarded. No commitment fee shall
accrue for the account of a Defaulting Lender so long as such Lender shall be a
Defaulting Lender.
(iii) If at any time the Borrower shall be required to make any
payment under any Loan Document to or for the account of a Defaulting Lender,
then the Borrower, so long as it is then permitted to borrow Revolving Credit
Loans hereunder, may set off and otherwise apply its obligation to make such
payment against the obligation of such Defaulting Lender to make such Defaulted
Loan. In such event, the amount so set off and otherwise applied shall be deemed
to constitute a Revolving Credit Loan by such Defaulting Lender made on the date
of
such set-off and included within any borrowing of Revolving Credit Loans as the
Administrative Agent may reasonably determine.
(iv) If, with respect to any Defaulting Lender, which for the
purposes of this subsection 4.8(c)(iii), shall include any Revolving Credit
Lender that has taken any action or become the subject of any action or
proceeding of a type described in Section 9(f)), the Borrower shall be required
to pay any amount under any Loan Document to or for the account of such
Defaulting Lender, then the Borrower, so long as it is then permitted to borrow
Revolving Credit Loans hereunder, may satisfy such payment obligation by paying
such amount to the Administrative Agent, to be (to the extent permitted by
applicable law and to the extent not utilized by the Administrative Agent to
satisfy obligations of the Defaulting Lender owing to it) held by the
Administrative Agent in escrow pursuant to its standard terms (including as to
the earning of interest), and applied (together with any accrued interest) by it
from time to time to make any Revolving Credit Loans or other payments as and
when required to be made by such Defaulting Lender hereunder.
4.9. ILLEGALITY. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof occurring after the Closing Date shall make it unlawful for
any Lender to make or maintain any Eurodollar Loans as contemplated by this
Agreement ("AFFECTED EURODOLLAR LOANS"), (a) such Lender shall promptly give
written notice of such circumstances to the Borrower and the Administrative
Agent (which notice shall be withdrawn whenever such circumstances no longer
exist), (b) the commitment of such Lender hereunder to make Affected Eurodollar
Loans, continue Affected Eurodollar Loans as such and convert an ABR Loan to an
Affected Eurodollar Loan shall forthwith be cancelled and, until such time as it
shall no longer be unlawful for such Lender to make or maintain such Affected
Eurodollar Loans, such Lender shall then have a commitment only to make an ABR
Loan when an Affected Eurodollar Loan is requested (to the extent otherwise
permitted by subsection 4.2), (c) such Lender's Loans then outstanding as
Affected Eurodollar Loans, if any, shall be converted automatically to ABR Loans
on the respective last days of the then current Interest Periods with respect to
such Loans or within such earlier period as required by law (to the extent
otherwise permitted by subsection 4.2) and (d) such Lender's Loans then
outstanding as Affected Eurodollar Loans, if any, not otherwise permitted to be
converted to ABR Loans by subsection 4.2 shall, upon notice to the Borrower, be
prepaid with accrued interest thereon on the last day of the then current
Interest Period with respect thereto (or such earlier date as may be required by
any such Requirement of Law). If any such conversion or prepayment of an
Affected Eurodollar Loan occurs on a day which is not the last day of the then
current Interest Period with respect thereto, the Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to subsection 4.12.
4.10. REQUIREMENTS OF LAW. (a) If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof
applicable to any Lender, or compliance by any Lender with any request or
directive (whether or not having the force of law) from any central bank or
other Governmental Authority, in each case made subsequent to the Closing Date
(or, if later, the date on which such Lender becomes a Lender):
(i) shall subject such Lender to any tax of any kind whatsoever with
respect to any Letter of Credit, any Application or any Eurodollar Loans
made by it or its obligation to make Eurodollar Loans, or change the basis
of taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by subsection 4.11 (including Non-Excluded
Taxes imposed solely by reason of any failure of such Lender to comply
with its obligations (if any) under subsection 4.11(b)) and changes in
taxes measured by or imposed upon the overall net income, or franchise
taxes, or taxes measured by or imposed upon overall capital or net worth,
or branch taxes (in the case of such capital, net worth or branch taxes,
imposed in lieu of such net income tax), of such Lender or its applicable
lending office, branch, or any affiliate thereof);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition (excluding any
tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, upon notice to the Borrower from such Lender,
through the Administrative Agent, in accordance herewith, the Borrower shall
promptly pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable with
respect to such Eurodollar Loans or Letters of Credit, PROVIDED that, in any
such case, the Borrower may elect to convert Eurodollar Loans made by such
Lender hereunder to ABR Loans (to the extent otherwise permitted by subsection
4.2) by giving the Administrative Agent at least one Business Day's notice of
such election, in which case the Borrower shall promptly pay to such Lender,
upon demand, without duplication, amounts theretofore required to be paid to
such Lender pursuant to this subsection 4.10(a) and such amounts, if any, as may
be required pursuant to subsection 4.12. If any Lender becomes entitled to claim
any additional amounts pursuant to this subsection, it shall provide prompt
notice thereof to the Borrower, through the Administrative Agent, certifying (x)
that one of the events described in this paragraph (a) has occurred and
describing in reasonable detail the nature of such event, (y) as to the
increased cost or reduced amount resulting from such event and (z) as to the
additional amount demanded by such Lender and a reasonably detailed explanation
of the calculation thereof. Such a certificate as to any additional amounts
payable pursuant to this subsection submitted by such Lender, through the
Administrative Agent, to the Borrower shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority, in each case, made subsequent to the Closing Date (or, if later, the
date on which such Lender becomes a Lender), does or shall have the effect of
reducing the rate of return on such Lender's or such corporation's capital as a
consequence of such Lender's obligations hereunder or under or in respect of any
Letter of Credit to a level below that which such Lender or such corporation
could have achieved but for such change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time,
within ten Business Days after submission by such Lender to the Borrower (with a
copy to the Administrative Agent) of a written request therefor certifying (x)
that one of the events described in this paragraph (b) has occurred and
describing in reasonable detail the nature of such event, (y) as to the
reduction of the rate of return on capital resulting from such event and (z) as
to the additional amount or amounts demanded by such Lender or corporation and a
reasonably detailed explanation of the calculation thereof, the Borrower shall
pay to such Lender such additional amount or amounts as will compensate such
Lender or corporation for such reduction. Such a certificate as to any
additional amounts payable pursuant to this subsection submitted by such Lender,
through the Administrative Agent, to the Borrower shall be conclusive in the
absence of manifest error. This covenant shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
4.11. TAXES. (a) Except as provided below in this subsection, all payments
made by the Borrower under this Agreement and any Notes shall be made free and
clear of, and without deduction or withholding for or on account of, any present
or future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding taxes measured by
or imposed upon the overall net income of any Lender or its applicable lending
office, or any branch or affiliate thereof, and all franchise taxes, branch
taxes, taxes on doing business or taxes measured by or imposed upon the overall
capital or net worth of any Lender or its applicable lending office, or any
branch or affiliate thereof, in each case imposed: (i) by the jurisdiction under
the laws of which such Lender, applicable lending office, branch or affiliate is
organized or is located, or in which its principal executive office is located,
or any nation within which such jurisdiction is located or any political
subdivision thereof; or (ii) by reason of any connection between the
jurisdiction imposing such tax and such Lender, applicable lending office,
branch or affiliate other than a connection arising solely from such Lender
having executed, delivered or performed its obligations under, or received
payment under or enforced, this Agreement or any Notes. If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or withholdings
("NON-EXCLUDED TAXES") are required to be withheld from any amounts payable to
the Administrative Agent or any Lender hereunder or under any Notes, the amounts
so payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the
amounts specified in this Agreement, PROVIDED, HOWEVER, that the Borrower shall
be entitled to deduct and withhold any Non-Excluded Taxes and shall not be
required to increase any such amounts payable to any Lender that is not
organized under the laws of the United States of America or a state thereof, as
the case may be, if such Lender fails to comply with the requirements of
paragraph (b) of this subsection. Whenever any Non-Excluded Taxes are payable by
the Borrower, as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for its own account or for the account of such Lender, as
the case may be, a certified copy of an original official receipt received by
the Borrower showing payment thereof. If the Borrower fails to pay any
Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Administrative Agent and
the Lenders for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent or any Lender as a result of any such
failure. The agreements in this subsection 4.11 shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(X) (i) on or before the date of any payment by the Borrower under
this Agreement or any Notes to such Lender, deliver to the Borrower and the
Administrative Agent (A) two duly completed copies of United States Internal
Revenue Service Form W-8BEN (certifying that it is a resident of the applicable
country within the meaning of the income tax treaty between the United States
and that country) or Form W-8ECI, or successor applicable form, as the case may
be, certifying that it is entitled to receive payments under this Agreement and
any Notes without deduction or withholding of any United States federal income
taxes and (B) such other forms, documentation or certifications, as the case may
be, certifying that it is entitled to an exemption from United States backup
withholding tax with respect to payments under this Agreement and any Notes;
(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form or certification on or before the date that any
such form or certification expires or becomes obsolete and after the occurrence
of any event requiring a change in the most recent form previously delivered by
it to the Borrower; and
(iii) obtain such extensions of time for filing and completing such
forms or certifications as may reasonably be requested by the Borrower or the
Administrative Agent; or
(Y) in the case of any such Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code,
(i) represent to the Borrower (for the benefit of the Borrower
and the Administrative Agent) that it is not a bank within the meaning of
Section 881(c)(3)(A) of the Code,
(ii) agree to furnish to the Borrower on or before the date of
any payment by the Borrower, with a copy to the Administrative Agent, (A) two
certificates substantially in the form of Exhibit E (any such certificate a
"U.S. TAX COMPLIANCE CERTIFICATE") and (B) two accurate and complete original
signed copies of Internal Revenue Service Form W-8BEN, or successor applicable
form certifying to such Lender's legal entitlement at the date of such
certificate to an exemption from U.S. withholding tax under the provisions of
Section 871(h) or Section 881(c) of the Code with respect to payments to be made
under this Agreement and any Notes (and to deliver to the Borrower and the
Administrative Agent two further copies of such form or certificate on or before
the date it expires or becomes obsolete and after the occurrence of any event
requiring a change in the most recently provided form or certificate and, if
necessary, obtain any extensions of time reasonably requested by the Borrower or
the Administrative Agent for filing and completing such forms or certificates),
and
(iii) agree, to the extent legally entitled to do so, upon
reasonable request by the Borrower, to provide to the Borrower (for the benefit
of the Borrower and the Administrative Agent) such other forms as may be
reasonably required in order to establish the legal entitlement of such Lender
to an exemption from withholding with respect to payments under this Agreement
and any Notes, PROVIDED that in determining the reasonableness of a request
under this clause (iii) such Lender shall be entitled to consider the cost (to
the extent unreimbursed by the Borrower) which would be imposed on such Lender
of complying with such request;
unless in any such case any change in treaty, law or regulation has
occurred after the date such Person becomes a Lender hereunder which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form with respect to it and such Lender so advises the
Borrower and the Administrative Agent. Each Person that shall become a Lender or
a Participant pursuant to subsection 11.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms, certifications and
statements required pursuant to this subsection, PROVIDED that in the case of a
Participant the obligations of such Participant pursuant to this paragraph (b)
shall be determined as if such Participant were a Lender except that such
Participant shall furnish all such required forms, certifications and statements
to the Lender from which the related participation shall have been purchased.
4.12. INDEMNITY. The Borrower agrees to indemnify each Lender and to hold
each Lender harmless from any loss or expense which such Lender may sustain or
incur (other than through such Lender's gross negligence or willful misconduct)
as a consequence of (a) default by the Borrower in making a borrowing of,
conversion into or continuation of Eurodollar Loans after the Borrower has given
a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment or conversion of
Eurodollar Loans after the Borrower has given a notice thereof in accordance
with the provisions of this Agreement or (c) the making of a payment or
prepayment of Eurodollar Loans or the conversion of Eurodollar Loans on a day
which is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or
converted, or not
so borrowed, converted or continued, for the period from the date of such
prepayment or conversion or of such failure to borrow, convert or continue to
the last day of the applicable Interest Period (or, in the case of a failure to
borrow, convert or continue, the Interest Period that would have commenced on
the date of such failure) in each case at the applicable rate of interest for
such Eurodollar Loans provided for herein (excluding, however, the Applicable
Margin included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) which would have accrued to such Lender on such
amount by placing such amount on deposit for a comparable period with leading
banks in the interbank eurocurrency market. If any Lender becomes entitled to
claim any amounts under the indemnity contained in this subsection 4.12, it
shall provide prompt notice thereof to the Borrower, through the Administrative
Agent, certifying (x) that one of the events described in clause (a), (b) or (c)
has occurred and describing in reasonable detail the nature of such event, (y)
as to the loss or expense sustained or incurred by such Lender as a consequence
thereof and (z) as to the amount for which such Lender seeks indemnification
hereunder and a reasonably detailed explanation of the calculation thereof. Such
a certificate as to any indemnification pursuant to this subsection submitted by
such Lender, through the Administrative Agent, to the Borrower shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
4.13. CERTAIN RULES RELATING TO THE PAYMENT OF ADDITIONAL AMOUNTS. (a)
Upon the request, and at the expense, of the Borrower, each Lender to which the
Borrower is required to pay any additional amount pursuant to subsection 4.10 or
4.11, and any Participant in respect of whose participation such payment is
required, shall reasonably afford the Borrower the opportunity to contest, and
reasonably cooperate with the Borrower in contesting, the imposition of any
Non-Excluded Tax giving rise to such payment; PROVIDED that (i) such Lender
shall not be required to afford the Borrower the opportunity to so contest
unless the Borrower shall have confirmed in writing to such Lender its
obligation to pay such amounts pursuant to this Agreement and (ii) the Borrower
shall reimburse such Lender for its reasonable attorneys' and accountants' fees
and disbursements incurred in so cooperating with the Borrower in contesting the
imposition of such Non-Excluded Tax; PROVIDED, HOWEVER that notwithstanding the
foregoing no Lender shall be required to afford the Borrower the opportunity to
contest, or cooperate with the Borrower in contesting, the imposition of any
Non-Excluded Taxes, if such Lender in its sole discretion in good faith
determines that to do so would have an adverse effect on it.
(b) If a Lender changes its applicable lending office (other than
pursuant to paragraph (c) below) and the effect of such change, as of the date
of such change, would be to cause the Borrower to become obligated to pay any
additional amount under subsection 4.10 or 4.11, the Borrower shall not be
obligated to pay such additional amount.
(c) If a condition or an event occurs which would, or would upon the
passage of time or giving of notice, result in the payment of any additional
amount to any Lender by the Borrower pursuant to subsection 4.10 or 4.11, such
Lender shall promptly notify the Borrower and the Administrative Agent and shall
take such steps as may reasonably be available to it to mitigate the effects of
such condition or event (which shall include efforts to rebook the Loans held by
such Lender at another lending office, or through another branch or an
affiliate, of such
Lender); PROVIDED that such Lender shall not be required to
take any step that, in its reasonable judgment, would be materially
disadvantageous to its business or operations or would require it to incur
additional costs (unless the Borrower agrees to reimburse such Lender for the
reasonable incremental out-of-pocket costs thereof).
(d) If the Borrower shall become obligated to pay additional amounts
pursuant to subsection 4.10 or 4.11 and any affected Lender shall not have
promptly taken steps necessary to avoid the need for payments under subsection
4.10 or 4.11, the Borrower shall have the right, for so long as such obligation
remains, (x) with the assistance of the Administrative Agent, to seek one or
more substitute Lenders reasonably satisfactory to the Administrative Agent and
the Borrower to purchase the affected Loan, in whole or in part, at an aggregate
price no less than such Loan's principal amount plus accrued interest, and
assume the affected obligations under this Agreement, or (y) upon at least four
Business Days irrevocable notice to the Administrative Agent, to prepay the
affected Loan, in whole or in part, subject to subsection 4.12, without premium
or penalty. In the case of the substitution of a Lender, the Borrower, the
Administrative Agent, the affected Lender, and any substitute Lender shall
execute and deliver an appropriately completed Assignment and Acceptance
pursuant to subsection 11.6(c) to effect the assignment of rights to, and the
assumption of obligations by, the substitute Lender; PROVIDED that any fees
required to be paid by subsection 11.6(e) in connection with such assignment
shall be paid by the Borrower or the substitute Lender. In the case of a
prepayment of an affected Loan, the amount specified in the notice shall be due
and payable on the date specified therein, together with any accrued interest to
such date on the amount prepaid. In the case of each of the substitution of a
Lender and of the prepayment of an affected Loan, the Borrower shall first pay
the affected Lender any additional amounts owing under subsections 4.10 and 4.11
(as well as any commitment fees and other amounts then due and owing to such
Lender, including, without limitation, any amounts under subsection 4.13) prior
to such substitution or prepayment.
(e) For purposes of subsections 4.10 and 4.11, a change in treaty,
law, rule or regulation shall not include the ratification or entry into force
of (i) the protocol amending the income tax treaty between Canada and the United
States, signed August 31, 1994, (ii) the income tax treaty between France and
the United States, signed August 31, 1994, (iii) the income tax treaty between
Portugal and the United States, signed September 6, 1994, (iv) the protocol
amending the income tax treaty between the Netherlands and the United States,
signed October 15, 1995, (v) the income tax treaty between Sweden and the United
States, signed September 1, 1994, (vi) the income tax treaty between Luxembourg
and the United States, initialed September 21, 1995, (vii) the income tax treaty
between Italy and the United States, signed August 25, 1999 and (viii) the
income tax treaty between the United Kingdom and the United States, signed July
24, 2001, in each case in substantially similar form as such protocol or treaty
may exist as of the Closing Date.
(f) If the Administrative Agent or any Lender receives a refund
directly attributable to taxes for which the Borrower has made additional
payments pursuant to subsection 4.10(a) or 4.11(a), the Administrative Agent or
such Lender, as the case may be, shall promptly pay such refund (together with
any interest with respect thereto received from the relevant taxing authority)
to the Borrower, PROVIDED, HOWEVER, that the Borrower agrees
promptly to return such refund (together with any interest with respect thereto
due to the relevant taxing authority) (free of all Non-Excluded Taxes) to the
Administrative Agent or the applicable Lender, as the case may be, upon receipt
of a notice that such refund is required to be repaid to the relevant taxing
authority.
(g) The obligations of a Lender or Participant under this subsection
4.13 shall survive the termination of this Agreement and the payment of the
Loans and all amounts payable hereunder.
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and each Lender to make the
Extensions of Credit requested to be made by it on the Closing Date and on each
Borrowing Date thereafter, the Borrower hereby represents and warrants, on the
Closing Date, and on every Borrowing Date thereafter, to the Administrative
Agent and each Lender that:
5.1. FINANCIAL CONDITION. (a) The audited consolidated balance sheets of
Holding and its consolidated Subsidiaries as of December 31, 1998, December 31,
1999 and December 31, 2000 and the related consolidated statements of income,
shareholders' equity and cash flows for the fiscal years ended on such dates,
reported on by and accompanied by an unqualified report from Deloitte & Touche
LLP present fairly, in all material respects, the consolidated financial
condition as at such date, and the consolidated results of operations and
consolidated cash flows for the respective fiscal years then ended, of Holding
and its consolidated Subsidiaries. The unaudited consolidated balance sheet of
Holding and its consolidated Subsidiaries as at March 31, 2001, and the related
unaudited consolidated statements of income and cash flows for the three-month
period ended of Holding and its consolidated Subsidiaries, on such date, present
fairly, in all material respects, the consolidated financial condition as at
such date, and the consolidated results of operations and consolidated cash
flows for the three-month period then ended, of Holding and its consolidated
Subsidiaries (subject to the omission of footnotes and normal year-end audit and
other adjustments). All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP
consistently applied throughout the periods covered thereby (except as approved
by a Responsible Officer, and disclosed in any such schedules and notes, and
subject to the omission of footnotes from such unaudited financial statements).
During the period from December 31, 2000 to and including the Closing Date,
there has been no sale, transfer or other disposition by Holding and its
consolidated Subsidiaries of any material part of the business or property of
Holding and its consolidated Subsidiaries, taken as a whole, and no purchase or
other acquisition by any of them of any business or property (including any
Capital Stock of any other Person) material in relation to the consolidated
financial condition of Holding and its consolidated Subsidiaries, taken as a
whole, in each case, which is not reflected in the foregoing financial
statements or in the notes thereto and has not otherwise been disclosed in
writing to the Lenders on or prior to the Closing Date.
(b) The pro forma balance sheet of Holding and its consolidated
Subsidiaries (the "PRO FORMA BALANCE SHEET"), copies of which have heretofore
been furnished to each
Lender, is the balance sheet of Holding and its consolidated Subsidiaries as of
March 31, 2001 (the "PRO FORMA DATE"), adjusted to give effect (as if such
events had occurred on such date) to (i) the receipt by the Borrower of the
gross cash proceeds (prior to any underwriting discount or other associated fees
and commissions or any deduction of associated fees and expenses) from the
issuance of the 2001 Senior Notes, (ii) the making of the Extensions of Credit
to be made on the Closing Date and the application of the proceeds thereof as
contemplated hereby, and (iii) the payment of actual or estimated fees,
expenses, financing costs and tax payments related to the transactions
contemplated hereby and thereby. The Pro Forma Balance Sheet was prepared in
accordance with Article 11 (Pro Forma Financial Information) of Regulation S-X
under the Securities Act.
5.2. NO CHANGE; SOLVENT. Since December 31, 2000, (a) except as and to the
extent disclosed on Schedule 5.2(a), there has been no development or event
relating to or affecting any Loan Party which has had or would be reasonably
expected to have a Material Adverse Effect (after giving effect to the
transactions described in clauses (i) through (iii) of subsection 5.1(b)) and
(b) except as permitted under this Agreement, and except for dividends or other
distributions by the Borrower made or declared prior to the Closing Date
consistent with past practice, no dividends or other distributions have been
declared, paid or made upon the Capital Stock of the Borrower, nor has any of
the Capital Stock of the Borrower been redeemed, retired, purchased or otherwise
acquired for value by the Borrower or any of its Subsidiaries. As of the Closing
Date, after giving effect to the consummation of the transactions described in
clauses (i) through (iii) of subsection 5.1(b), the Borrower is Solvent.
5.3. CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each of the Loan Parties
(a) is duly incorporated, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, (b) has the corporate power and
authority, and the legal right, to own and operate its property, to lease the
property it operates as lessee and to conduct the business in which it is
currently engaged, except to the extent that the failure to have such legal
right would not be reasonably expected to have a Material Adverse Effect, (c) is
duly qualified as a foreign corporation and in good standing under the laws of
each jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification, other than in such
jurisdictions where the failure to be so qualified and in good standing would
not be reasonably expected to have a Material Adverse Effect, and (d) is in
compliance with all Requirements of Law, except to the extent that the failure
to comply therewith would not, in the aggregate, be reasonably expected to have
a Material Adverse Effect.
5.4. CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. Each Loan
Party has the corporate power and authority, and the legal right, to make,
deliver and perform the Loan Documents to which it is a party and, in the case
of the Borrower, to obtain Extensions of Credit hereunder, and each such Loan
Party has taken all necessary corporate action to authorize the execution,
delivery and performance of the Loan Documents to which it is a party and, in
the case of the Borrower, to authorize the Extensions of Credit on the terms and
conditions of this Agreement, any Notes and the Applications. No consent or
authorization of, filing with, notice to or other similar act by or in respect
of, any Governmental Authority or any other Person is required to be obtained or
made by or on behalf of any Loan Party in connection with the
execution, delivery, performance, validity or enforceability of the Loan
Documents to which it is a party or, in the case of the Borrower, with the
Extensions of Credit hereunder, except for (i) consents, authorizations, notices
and filings described in Schedule 5.4, all of which have been obtained or made
prior to the Closing Date, (ii) filings to perfect the Liens created by the
Security Documents, (iii) filings pursuant to the Assignment of Claims Act of
1940, as amended (31 U.S.C. ss. 3727 et seq.), in respect of Accounts of the
Borrower and its Subsidiaries the Obligor in respect of which is the United
States of America or any department, agency or instrumentality thereof and (iv)
consents, authorizations, notices and filings which the failure to obtain or
make would not reasonably be expected to have a Material Adverse Effect. This
Agreement has been duly executed and delivered by the Borrower, and each other
Loan Document to which any Loan Party is a party will be duly executed and
delivered on behalf of such Loan Party. This Agreement constitutes a legal,
valid and binding obligation of the Borrower, and each other Loan Document to
which any Loan Party is a party when executed and delivered will constitute a
legal, valid and binding obligation of such Loan Party, enforceable against such
Loan Party in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
5.5. NO LEGAL BAR. The execution, delivery and performance of the Loan
Documents by any of the Loan Parties, the Extensions of Credit hereunder and the
use of the proceeds thereof (a) will not violate any Requirement of Law or
Contractual Obligation of such Loan Party in any respect that would reasonably
be expected to have a Material Adverse Effect and (b) will not result in, or
require, the creation or imposition of any Lien (other than the Liens permitted
by subsection 8.3) on any of its properties or revenues pursuant to any such
Requirement of Law or Contractual Obligation.
5.6. NO MATERIAL LITIGATION. No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Borrower, threatened by or against Holding or any of its
Subsidiaries or against any of their respective properties or revenues, (a)
except as described on Schedule 5.6, which is so pending or threatened at any
time on or prior to the Closing Date and relates to any of the Loan Documents or
any of the transactions contemplated hereby or thereby or (b) which would be
reasonably expected to have a Material Adverse Effect.
5.7. NO DEFAULT. Neither the Borrower nor any of its Subsidiaries is in
default under or with respect to any of its Contractual Obligations in any
respect which would be reasonably expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
5.8. OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower and its
Subsidiaries has good record and marketable title in fee simple to, or a valid
leasehold interest in, all its material real property, and good title to, or a
valid leasehold interest in, all its other material property, and none of such
property is subject to any Lien, except for Liens permitted by subsection 8.3.
Except for the Excluded Properties, the Mortgaged Fee Properties as listed on
Part I of Schedule
5.8 constitute all the material real properties owned in fee by the Loan Parties
as of the Closing Date and the Mortgaged Leased Properties listed on Part II of
Schedule 5.8 constitute all of the material real properties leased by the Loan
Parties as of the Closing Date.
5.9. INTELLECTUAL PROPERTY. The Borrower and each of its Subsidiaries
owns, or has the legal right to use, all United States patents, patent
applications, trademarks, trademark applications, trade names, copyrights,
technology, know-how and processes necessary for each of them to conduct its
business as currently conducted (the "INTELLECTUAL PROPERTY") except for those
the failure to own or have such legal right to use would not be reasonably
expected to have a Material Adverse Effect. Except as provided on Schedule 5.9,
no claim has been asserted and is pending by any Person challenging or
questioning the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does the Borrower know of
any such claim, and, to the knowledge of the Borrower, the use of such
Intellectual Property by the Borrower and its Subsidiaries does not infringe on
the rights of any Person, except for such claims and infringements which in the
aggregate, would not be reasonably expected to have a Material Adverse Effect.
5.10. NO BURDENSOME RESTRICTIONS. No Requirement of Law or Contractual
Obligation of the Borrower or any of its Subsidiaries would be reasonably
expected to have a Material Adverse Effect.
5.11. TAXES. To the knowledge of the Borrower, each of Holding and its
Subsidiaries has filed or caused to be filed all United States federal income
tax returns and all other material tax returns which are required to be filed
and has paid (a) all taxes shown to be due and payable on such returns and (b)
all taxes shown to be due and payable on any assessments of which it has
received notice made against it or any of its property (including, without
limitation, the Mortgaged Properties) and all other taxes, fees or other charges
imposed on it or any of its property by any Governmental Authority (other than
any (i) taxes, fees or other charges with respect to which the failure to pay,
in the aggregate, would not have a Material Adverse Effect or (ii) taxes, fees
or other charges the amount or validity of which are currently being contested
in good faith by appropriate proceedings diligently conducted and with respect
to which reserves in conformity with GAAP have been provided on the books of
Holding or its Subsidiaries, as the case may be); and no tax Lien has been
filed, and no claim is being asserted, with respect to any such tax, fee or
other charge. The preceding sentence shall not apply to any taxes, fees or other
charges which are subject to indemnification by Manville under the Tax Matters
Agreement with respect to which the Borrower has disclosed to the Administrative
Agent the failure to file or pay, the filing of a tax lien, or the assertion of
a claim.
5.12. FEDERAL REGULATIONS. No part of the proceeds of any Extensions of
Credit will be used for any purpose which violates the provisions of the
Regulations of the Board, including without limitation, Regulation T, Regulation
U or Regulation X of the Board. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
G-3 or FR Form U-1, referred to in said Regulation U.
5.13. ERISA. During the five year period prior to each date as of which
this representation is made, or deemed made, with respect to any Plan (or, with
respect to (vi) or (viii) below, as of the date such representation is made or
deemed made), none of the following events or conditions, either individually or
in the aggregate, has resulted or is reasonably likely to result in a Material
Adverse Effect: (i) a Reportable Event; (ii) an "accumulated funding deficiency"
(within the meaning of Section 412 of the Code or Section 302 of ERISA); (iii)
any noncompliance with the applicable provisions of ERISA or the Code; (iv) a
termination of a Single Employer Plan (other than a standard termination
pursuant to Section 4041(b) of ERISA); (v) a Lien on the property of the
Borrower or its Subsidiaries in favor of the PBGC or a Plan; (vi) any
Underfunding with respect to any Single Employer Plan; (vii) a complete or
partial withdrawal from any Multiemployer Plan by the Borrower or any Commonly
Controlled Entity; (viii) any liability of the Borrower or any Commonly
Controlled Entity under ERISA if the Borrower or any such Commonly Controlled
Entity were to withdraw completely from all Multiemployer Plans as of the annual
valuation date most closely preceding the date on which this representation is
made or deemed made; or (ix) the Reorganization or Insolvency of any
Multiemployer Plan. There have been no transactions that resulted or could
result in any liability to the Borrower or any Commonly Controlled Entity under
Section 4069 of ERISA or Section 4212(c) of ERISA.
5.14. COLLATERAL. (a) Upon execution and delivery thereof by the parties
thereto, the Guarantee and Collateral Agreement, the Mortgages (as amended by
the Mortgage Amendment) will be effective to create (to the extent described
therein) in favor of the Administrative Agent, for the ratable benefit of the
Lenders, a legal, valid and enforceable security interest in the Collateral
described therein, except as may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing. When (i) the actions specified
in Schedule 3 to the Guarantee and Collateral Agreement have been duly taken,
(ii) all applicable Instruments, Chattel Paper and Documents a security interest
in which is perfected by possession have been delivered to, and/or are in the
continued possession of, the Administrative Agent and (iii) all Deposit
Accounts, the Collateral Proceeds Account, Electronic Chattel Paper and Pledged
Stock (each as defined in the Guarantee and Collateral Agreement) a security
interest in which is required to be or is perfected by "control" (as described
in the Uniform Commercial Code as in effect in the State of New York from time
to time) are under the "control" of the Administrative Agent and (iv) the
Mortgage Amendments have been duly recorded, the security interests granted
pursuant thereto shall constitute (to the extent described therein) a perfected
security interest in, all right, title and interest of each pledgor or mortgagor
(as applicable) party thereto in the Collateral described therein with respect
to such pledgor or mortgagor (as applicable). Notwithstanding any other
provision of this Agreement, capitalized terms which are used in this subsection
5.14 and not defined in this Agreement are so used as defined in the applicable
Security Document.
(b) Each of the Foreign Subsidiaries Share Pledge Agreements
continues to be in full force and effect and the security interests created
thereby upon the completion of the
actions specified in Schedule 7 will continue to constitute perfected security
interests securing the Obligations (as defined in the Guarantee and Collateral
Agreement) as and to the extent provided therein.
5.15. INVESTMENT COMPANY ACT; OTHER REGULATIONS. The Borrower is not an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act. The Borrower is not subject to
regulation under any Federal or State statute or regulation (other than
Regulation X of the Board) which limits its ability to incur Indebtedness as
contemplated hereby.
5.16. SUBSIDIARIES. Schedule 5.16 sets forth all the Subsidiaries of the
Borrower at the Closing Date, the jurisdiction of their incorporation and the
direct or indirect ownership interest of the Borrower therein.
5.17. PURPOSE OF LOANS. The proceeds of the Loans shall be used by the
Borrower (i) to refinance a portion of the Existing Credit Agreement, (ii) to
pay certain fees, taxes and expenses related to the refinancing of such existing
Indebtedness of the Borrower and its Subsidiaries and (iii) in the case of the
Revolving Credit Loans, to finance the working capital and other business
requirements of the Borrower and its Subsidiaries.
5.18. ENVIRONMENTAL MATTERS. (a) Other than exceptions to any of the
following that would not, individually or in the aggregate, reasonably be
expected to give rise to a Material Adverse Effect:
(i) the Borrower and its Subsidiaries: (A) are, and within the period of
all applicable statutes of limitation have been, in compliance with all
applicable Environmental Laws; (B) hold all Environmental Permits (each of which
is in full force and effect) required for any of their current operations or for
any property owned, leased, or otherwise operated by any of them and reasonably
expect to timely obtain without material expense all such Environmental Permits
required for planned operations; (C) are, and within the period of all
applicable statutes of limitation have been, in compliance with all of their
Environmental Permits; and (D) have no reason to believe that: any of their
Environmental Permits will not be, or will entail material expense to be, timely
renewed or complied with; any additional Environmental Permits that may be
required of any of them will not be, or will entail material expense to be,
timely granted or complied with; or that compliance with any Environmental Law
that is applicable to any of them will not be, or will entail material expense
to be, timely attained and maintained.
(ii) Materials of Environmental Concern have not been transported,
disposed of, emitted, discharged, or otherwise released or threatened to be
released, to or at any real property presently or formerly owned, leased or
operated by the Borrower or any of its Subsidiaries or at any other location,
which could reasonably be expected to (A) give rise to liability of the Borrower
or any of its Subsidiaries under any applicable Environmental Law, or (B)
interfere with the Borrower's planned or continued operations, or (C) impair the
fair saleable value of any real property owned or leased by the Borrower or any
of its Subsidiaries.
(iii) There is no judicial, administrative, or arbitral proceeding
(including any notice of violation or alleged violation) under any Environmental
Law to which the Borrower or any of its Subsidiaries is, or to the knowledge of
the Borrower or any of its Subsidiaries will be, named as a party that is
pending or, to the knowledge of the Borrower or any of its Subsidiaries,
threatened.
(iv) Neither the Borrower nor any of its Subsidiaries has received any
written request for information, or been notified that it is a potentially
responsible party, under the federal Comprehensive Environmental Response,
Compensation, and Liability Act or any similar Environmental Law, or received
any other written request for information with respect to any Materials of
Environmental Concern.
(v) Neither the Borrower nor any of its Subsidiaries has entered into or
agreed to any consent decree, order, or settlement or other agreement, nor is
subject to any judgment, decree, or order or other agreement, in any judicial,
administrative, arbitral, or other forum, relating to compliance with or
liability under any Environmental Law.
(b) the Borrower and its Subsidiaries are implementing an
environmental program reasonably designed to (i) ensure that the Borrower, its
Subsidiaries, any of their respective operations (including, without limitation,
disposal), and any properties owned, leased or operated by any of them, attain
and remain in substantial compliance with applicable Environmental Laws and (ii)
reasonably and prudently manage any liabilities or potential liabilities that
the Borrower, any of its Subsidiaries, any of their respective operations
(including, without limitation, disposal), and any properties owned or leased by
any of them, may have under applicable Environmental Laws.
5.19. NO MATERIAL MISSTATEMENTS. The written information (including,
without limitation, the Confidential Information Memorandum), reports, financial
statements, exhibits and schedules furnished by or on behalf of the Borrower to
the Administrative Agent, the Other Representatives and the Lenders in
connection with the negotiation of any Loan Document or included therein or
delivered pursuant thereto, taken as a whole, did not contain as of the Closing
Date any material misstatement of fact and did not omit to state as of the
Closing Date any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not materially misleading
in their presentation of the Borrower and its Subsidiaries taken as a whole. It
is understood that (x) no representation or warranty is made concerning the
forecasts, estimates, pro forma information, projections and statements as to
anticipated future performance or conditions, and the assumptions on which they
were based, contained in any such information, reports, financial statements,
exhibits or schedules, except that as of the date such forecasts, estimates, pro
forma information, projections and statements were generated, (i) such
forecasts, estimates, pro forma information, projections and statements were
based on the good faith assumptions of the management of the Borrower and (ii)
such assumptions were believed by such management to be reasonable and (y) such
forecasts, estimates, pro forma information and statements, and the assumptions
on which they were based, may or may not prove to be correct.
5.20. LABOR MATTERS. There are no strikes pending or, to the knowledge of
the Borrower, reasonably expected to be commenced against the Borrower or any of
its Subsidiaries which, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect. The hours worked and payments made
to employees of the Borrower and each of its Subsidiaries have not been in
violation of any applicable laws, rules or regulations, except where such
violations would not reasonably be expected to have a Material Adverse Effect.
5.21. LOCKBOX ACCOUNTS. As of the Closing Date, each Lockbox Agreement
then in effect as set forth on Schedule D shall continue to be in full force and
effect and any security interest created with respect thereto shall continue to
be in full force and effect in favor of the Administrative Agent for the benefit
of the Lenders hereunder.
SECTION 6. CONDITIONS PRECEDENT
6.1. CONDITIONS TO INITIAL EXTENSION OF CREDIT. This Agreement, including,
without limitation, the agreement of each Lender to make the initial Extension
of Credit requested to be made by it, shall become effective on the date on
which the following conditions precedent shall have been satisfied or waived:
(a) LOAN DOCUMENTS. The Administrative Agent shall have received the
following Loan Documents, executed and delivered as required below, with, in the
case of clause (i), a copy for each Lender:
(i) this Agreement, executed and delivered by a duly
authorized officer of the Borrower;
(ii) the Guarantee and Collateral Agreement, executed and
delivered by a duly authorized officer of Holding, RIC Holding, the
Borrower and each other Loan Party signatory thereto and an
Acknowledgement and Consent in the form attached to the Guarantee
and Collateral Agreement, executed and delivered by each Issuer (as
defined therein), if any, that is not a Loan Party;
(iii) with respect to each of the Existing Mortgages, a
Mortgage Amendment executed and delivered by a duly authorized
officer of the Loan Party signatory thereto;
(b) PROJECTIONS. The Administrative Agent shall have received a copy
of the projections by Holding of the operating budget and cash flow budget of
Holding and its Subsidiaries for the period from the Closing Date to the
Termination Date, together with a statement of assumptions underlying such
projections.
(c) CONSENTS, LICENSES AND APPROVALS. The Administrative Agent shall
have received a certificate of a Responsible Officer of the Borrower stating
that all consents, authorizations, notices and filings referred to in Schedule
5.4 are in full force and effect or have
the status described therein, and the Administrative Agent shall have received
evidence thereof reasonably satisfactory to it.
(d) LIEN SEARCHES. The Administrative Agent shall have received the
results of a recent search by a Person reasonably satisfactory to the
Administrative Agent, of the Uniform Commercial Code, judgment and tax lien
filings which may have been filed with respect to personal property of the
Borrower and its Subsidiaries in any of the jurisdictions set forth in Schedule
5.14, and the results of such search shall not reveal any liens other than liens
permitted by subsection 8.3.
(e) LEGAL OPINIONS. The Administrative Agent shall have received the
following executed legal opinions:
(i) the executed legal opinion of Debevoise & Xxxxxxxx,
special counsel to each of Holding, RIC Holding, the Borrower and
the other Loan Parties, substantially in the form of Exhibit D-1;
(ii) the executed legal opinion of Xxxxxx X. Xxxxxxx, Xx.,
counsel to each of Holding, RIC Holding, the Borrower and the other
Loan Parties, substantially in the form of Exhibit D-2; and
(iii) the executed legal opinion of Xxxxxxxx, Xxxxxx & Finger,
special Delaware counsel to each of Holding, RIC Holding, the
Borrower and the other Loan Parties, substantially in the form of
Exhibit D-3.
(f) CLOSING CERTIFICATE. The Administrative Agent shall have
received a certificate from each Loan Party, dated the Closing Date,
substantially in the form of Exhibit J, with appropriate insertions and
attachments.
(g) ACTIONS TO PERFECT LIENS. The Administrative Agent shall have
received evidence in form and substance reasonably satisfactory to it that all
filings, recordings, registrations and other actions, including, without
limitation, the filing of duly executed financing statements on Form UCC-1 in
each jurisdiction set forth on Schedule 5.14, necessary or, in the reasonable
opinion of the Administrative Agent, advisable to perfect the Liens created by
the Security Documents, shall have been completed or shall be ready to be
completed promptly following the Closing Date, and all agreements, statements
and other documents relating thereto shall be in form and substance reasonably
satisfactory to the Administrative Agent.
(h) Pledged Stock; Stock Powers; Pledged Notes; Endorsements;
Initial Transaction Statements. The Administrative Agent shall have received:
(i) the certificates, if any, representing the Pledged Stock
under (and as defined in) the Guarantee and Collateral Agreement,
together with an undated
stock power for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof; and
(ii) the promissory notes representing each of the Pledged
Notes under (and as defined in) the Guarantee and Collateral
Agreement, duly endorsed as required by the Guarantee and Collateral
Agreement.
(i) TITLE INSURANCE POLICY. The Administrative Agent shall have
received in respect of each of the Existing Mortgagee Title Policies an
endorsement or endorsements (collectively, the "ENDORSEMENTS") or marked up
unconditional binder for the issuance of such Endorsements dated the Closing
Date. Each of the Endorsements shall modify the relevant Existing Mortgage Title
Policy to (i) insure that the Mortgage insured thereby (as amended) continues to
be a valid first Lien on the Mortgaged Property encumbered thereby free and
clear of all defects and encumbrances, except those permitted by subsection 8.3
and such as may be approved by the Administrative Agent; (ii) name the
Administrative Agent for the benefit of the Lenders as the insured thereunder;
and (iii) be in form and substance reasonably satisfactory to the Administrative
Agent. The Administrative Agent shall have received evidence reasonably
satisfactory to it that all premiums in respect of each of the Endorsements, and
all charges for mortgage recording tax, if any, have been paid. The
Administrative Agent shall have also received a copy of all recorded documents
referred to, or listed as exceptions to title in, the Endorsements referred to
in this subsection and a copy, certified by such parties as the Administrative
Agent may deem reasonably appropriate, of all other documents affecting the
property covered by each Mortgage as shall have been reasonably requested by the
Administrative Agent.
(j) FEES. The Administrative Agent and the Lenders shall have
received all fees and expenses required to be paid or delivered by the Borrower
to them on or prior to the Closing Date, including, without limitation, the fees
referred to in subsection 4.5.
(k) BORROWING CERTIFICATE. The Administrative Agent shall have
received a certificate of the Borrower, dated the Closing Date, substantially in
the form of Exhibit H, with appropriate insertions and attachments, reasonably
satisfactory in form and substance to the Administrative Agent, executed by a
Responsible Officer and the Secretary or any Assistant Secretary of the
Borrower.
(l) CORPORATE PROCEEDINGS OF THE LOAN PARTIES. The Administrative
Agent shall have received a copy of the resolutions, in form and substance
reasonably satisfactory to the Administrative Agent, of the board of directors
of each Loan Party authorizing, as applicable, (i) the execution, delivery and
performance of this Agreement, any Notes and the other Loan Documents to which
it is or will be a party as of the Closing Date, (ii) the Extensions of Credit
to such Loan Party (if any) contemplated hereunder and (iii) the granting by it
of the Liens to be created pursuant to the Security Documents to which it is or
will be a party as of the Closing Date, certified by the Secretary or an
Assistant Secretary of such Loan Party as of the Closing Date, which certificate
shall be in form and substance reasonably satisfactory to the Administrative
Agent and shall state that the resolutions thereby certified have not been
amended, modified (except as any later such resolution may modify any earlier
such resolution), revoked or rescinded and are in full force and effect.
(m) INCUMBENCY CERTIFICATES OF THE LOAN PARTIES. The Administrative
Agent shall have received a certificate of each Loan Party, dated the Closing
Date, as to the incumbency and signature of the officers of such Loan Party
executing any Loan Document, reasonably satisfactory in form and substance to
the Administrative Agent, executed by a Responsible Officer and the Secretary or
any Assistant Secretary of such Loan Party.
(n) GOVERNING DOCUMENTS. The Administrative Agent shall have
received copies of the certificate or articles of incorporation and by-laws (or
other similar governing documents serving the same purpose) of each Loan Party,
certified as of the Closing Date as complete and correct copies thereof by the
Secretary or an Assistant Secretary of such Loan Party.
(o) INSURANCE. The Administrative Agent shall have received evidence
in form and substance reasonably satisfactory to it that all of the requirements
of subsection 7.5 of this Agreement and subsection 5.2.2 of the Guarantee and
Collateral Agreement shall have been satisfied.
The making of the initial Extensions of Credit by the Lenders
hereunder shall conclusively be deemed to constitute an acknowledgement by the
Administrative Agent and each Lender that each of the conditions precedent set
forth in this subsection 6.1 shall have been satisfied in accordance with its
respective terms or shall have been irrevocably waived by such Person.
6.2. CONDITIONS TO EACH OTHER EXTENSION OF CREDIT. The agreement of each
Lender to make any Extension of Credit requested to be made by it on any date
(including, without limitation, the initial Extension of Credit and each Swing
Line Loan) is subject to the satisfaction or waiver of the following conditions
precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by any Loan Party pursuant to this Agreement or any other Loan
Document (or in any amendment, modification or supplement hereto or thereto) to
which it is a party, and each of the representations and warranties contained in
any certificate furnished at any time by or on behalf of any Loan Party pursuant
to this Agreement or any other Loan Document, shall, except to the extent that
they relate to a particular date, be true and correct in all material respects
on and as of such date as if made on and as of such date.
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the Extensions of
Credit requested to be made on such date.
(c) Letter of Credit Application. With respect to the issuance of
any Letter of Credit, the Issuing Lender shall have received an Application,
completed to its satisfaction, and
such other certificates, documents and other papers and information as the
Issuing Lender may reasonably request.
Each borrowing by and Letter of Credit issued on behalf of the
Borrower hereunder shall constitute a representation and warranty by the
Borrower as of the date of such borrowing or such issuance that the conditions
contained in this subsection 6.2 have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, from and after the Closing Date and
so long as the Revolving Credit Commitments remain in effect, and thereafter
until payment in full of the Loans, all Reimbursement Obligations and any other
amount then due and owing to any Lender or the Administrative Agent hereunder
and under any Note and termination or expiration of all Letters of Credit, the
Borrower shall and (except in the case of delivery of financial information,
reports and notices) shall cause each of its Subsidiaries to:
7.1. FINANCIAL STATEMENTS. Furnish to the Administrative Agent for
delivery to each Lender (and the Administrative Agent agrees to make and so
deliver such copies):
(a) as soon as available, but in any event not later than the fifth
Business Day after the 90th day following the end of each fiscal year of Holding
ending on or after December 31, 2001, a copy of the consolidated balance sheet
of Holding and its consolidated Subsidiaries as at the end of such year and the
related consolidated statements of operations, changes in common stockholders'
equity and cash flows for such year, setting forth in each case, in comparative
form the figures for and as of the end of the previous year, reported on without
a "going concern" or like qualification or exception, or qualification arising
out of the scope of the audit, by Deloitte & Touche LLP or other independent
certified public accountants of nationally recognized standing not unacceptable
to the Administrative Agent in its reasonable judgment (it being agreed that the
furnishing of Holding's Annual Report on Form 10-K for such year, as filed with
the Securities and Exchange Commission, will satisfy the Borrower's obligation
under this subsection 7.1(a) with respect to such year except with respect to
the requirement that such financial statements be reported on without a "going
concern" or like qualification or exception, or qualification arising out of the
scope of the audit); and
(b) as soon as available, but in any event not later than the fifth
Business Day after the 45th day following the end of each of the first three
quarterly periods of each fiscal year of Holding, the unaudited consolidated
balance sheet of Holding and its consolidated Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of operations and cash
flows of Holding and its consolidated Subsidiaries for such quarter and the
portion of the fiscal year through the end of such quarter, setting forth, (x)
in comparative form the budgeted figures as of the end of the relevant period
and the figures as at the end of the corresponding fiscal quarter of the
previous fiscal year and (y) in comparative form the budgeted figures (as
adjusted consistent with past practice) for the relevant period and the figures
for the corresponding period of the previous fiscal year, certified by a
Responsible Officer of Holding as
being fairly stated in all material respects (subject to normal year-end audit
and other adjustments) (it being agreed that, except for the comparison to
budgeted figures as described in clause (y) above, the furnishing of Holding's
Quarterly Report on Form 10-Q for such quarter, as filed with the Securities and
Exchange Commission, will satisfy the Borrower's obligations under this
subsection 7.1(b) with respect to such quarter).
all such financial statements delivered pursuant to subsection 7.1(a) or (b) to
be (and, in the case of any financial statements delivered pursuant to
subsection 7.1(b) shall be certified by a Responsible Officer of Holding as
being) complete and correct in all material respects in conformity with GAAP and
to be (and, in the case of any financial statements delivered pursuant to
subsection 7.1(b) shall be certified by a Responsible Officer of Holding as
being) prepared in reasonable detail in accordance with GAAP applied
consistently throughout the periods reflected therein and with prior periods
that began on or after the Closing Date (except as approved by such accountants
or officer, as the case may be, and disclosed therein, and except, in the case
of any financial statements delivered pursuant to subsection 7.1(b), for the
absence of certain notes).
7.2. CERTIFICATES; OTHER INFORMATION. Furnish to the Administrative Agent
for delivery to each Lender (and the Administrative Agent agrees to make and so
deliver such copies):
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in making
the audit necessary therefor no knowledge was obtained of any Default or Event
of Default insofar as the same relates to any financial accounting matters
covered by their audit, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements and
reports referred to in subsections 7.1(a) and (b), a certificate signed by a
Responsible Officer of each of Holding and the Borrower (i) stating that, to the
best of such Responsible Officer's knowledge, each of Holding, the Borrower and
their respective Subsidiaries during such period has observed or performed all
of its covenants and other agreements, and satisfied every condition, contained
in this Agreement or the other Loan Documents to which it is a party to be
observed, performed or satisfied by it, and that such Responsible Officer has
obtained no knowledge of any Default or Event of Default, except, in each case,
as specified in such certificate, and (ii) setting forth the calculations
required to determine (A) compliance with all covenants set forth in subsection
8.1 (in the case of a certificate furnished with the financial statements
referred to in subsections 7.1(a) and (b)), and (B) compliance with the covenant
set forth in subsection 8.8 (in the case of a certificate furnished with the
financial statements referred to in subsection 7.1(a));
(c) as soon as available, but in any event not later than the fifth
Business Day following the 90th day after the beginning of each fiscal year of
Holding, a copy of the projections by Holding of the operating budget and cash
flow budget of Holding and its Subsidiaries for such fiscal year, such
projections to be accompanied by a certificate of a Responsible Officer of
Holding to the effect that such Responsible Officer believes such projections to
have been prepared on the basis of reasonable assumptions;
(d) within five Business Days after the same are sent, copies of all
financial statements and reports which Holding, RIC Holding or the Borrower
sends to its public security holders, and within five Business Days after the
same are filed, copies of all financial statements and periodic reports which
Holding, RIC Holding or the Borrower may file with the Securities and Exchange
Commission or any successor or analogous Governmental Authority;
(e) within five Business Days after the same are filed, copies of
all registration statements and any amendments and exhibits thereto, which
Holding, RIC Holding or the Borrower may file with the Securities and Exchange
Commission or any successor or analogous Governmental Authority, and such other
documents or instruments as may be reasonably requested by the Administrative
Agent in connection therewith; and
(f) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
7.3. PAYMENT OF OBLIGATIONS. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
diligently conducted and reserves in conformity with GAAP with respect thereto
have been provided on the books of Holding or any of its Subsidiaries, as the
case may be.
7.4. CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. Continue to engage
in business of the same general type as conducted by the Borrower and its
Subsidiaries on the Closing Date, taken as a whole, and preserve, renew and keep
in full force and effect its corporate existence and take all reasonable action
to maintain all rights, privileges and franchises necessary or desirable in the
normal conduct of the business of the Borrower and its Subsidiaries, taken as a
whole, except as otherwise expressly permitted pursuant to subsection 8.5,
PROVIDED that the Borrower and its Subsidiaries shall not be required to
maintain any such rights, privileges or franchises, if the failure to do so
would not reasonably be expected to have a Material Adverse Effect; and comply
with all Contractual Obligations and Requirements of Law except to the extent
that failure to comply therewith, in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.
7.5. MAINTENANCE OF PROPERTY; INSURANCE. Keep all property useful and
necessary in the business of the Borrower and its Subsidiaries, taken as a
whole, in good working order and condition; maintain with financially sound and
reputable insurance companies insurance on all property material to the business
of the Borrower and its Subsidiaries, taken as a whole, in at least such amounts
and against at least such risks (but including in any event public liability,
product liability and business interruption) as are usually insured against in
the same general area by companies engaged in the same or a similar business;
and furnish to the Administrative Agent, upon written request, information in
reasonable detail as to the insurance carried.
7.6. INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. Keep proper
books of records and account in which full, complete and correct entries in
conformity with GAAP and all
material Requirements of Law shall be made of all dealings and transactions in
relation to its business and activities; and permit representatives of any
Lender to visit and inspect any of its properties and examine and, to the extent
reasonable, make abstracts from any of its books and records and to discuss the
business, operations, properties and financial and other condition of the
Borrower and its Subsidiaries with officers and employees of the Borrower and
its Subsidiaries and with its independent certified public accountants, in each
case at any reasonable time, upon reasonable notice, and as often as may
reasonably be desired.
7.7. NOTICES. Promptly give notice to the Administrative Agent and each
Lender of:
(a) as soon as possible after a Responsible Officer of the Borrower
knows or reasonably should know thereof, the occurrence of any Default or
Event of Default;
(b) as soon as possible after a Responsible Officer of the Borrower
knows or reasonably should know thereof, any (i) default or event of
default under any Contractual Obligation of the Borrower or any of its
Subsidiaries, other than as previously disclosed in writing to the
Lenders, or (ii) litigation, investigation or proceeding which may exist
at any time between the Borrower or any of its Subsidiaries and any
Governmental Authority, which in either case, if not cured or if adversely
determined, as the case may be, would reasonably be expected to have a
Material Adverse Effect;
(c) as soon as possible after a Responsible Officer of the Borrower
knows or reasonably should know thereof, the occurrence of any default or
event of default under any of the Existing Notes;
(d) as soon as possible after a Responsible Officer of the Borrower
knows or reasonably should know thereof, any litigation or proceeding
affecting Holding or any of its Subsidiaries in which the amount involved
(not covered by insurance) is $5,000,000 or more or in which injunctive or
similar relief is sought that would reasonably be expected to have a
Material Adverse Effect;
(e) the following events, as soon as possible and in any event
within 30 days after a Responsible Officer of the Borrower or any of its
Subsidiaries knows or reasonably should know thereof: (i) the occurrence
or expected occurrence of any Reportable Event with respect to any Single
Employer Plan, a failure to make any required contribution to a Single
Employer Plan or Multiemployer Plan, the creation of any Lien on the
property of the Borrower or its Subsidiaries in favor of the PBGC or a
Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan; (ii) the institution of proceedings
or the taking of any other formal action by the PBGC or the Borrower or
any of its Subsidiaries or any Commonly Controlled Entity or any
Multiemployer Plan which could reasonably be expected to result in the
withdrawal from, or the termination, Reorganization or Insolvency of, any
Single Employer Plan or Multiemployer Plan; PROVIDED, HOWEVER, that no
such notice will be required under clause (i) or (ii) above unless the
event giving rise to such notice, when aggregated wit h all other such
events under clause (i) or (ii) above, could be reasonably expected to
result in
liability to the Borrower or its Subsidiaries in an amount that would
exceed $5,000,000; or (iii) the existence of an Underfunding under a
Single Employer Plan that exceeds 10% of the value of the assets of such
Single Employer Plan, in each case, determined as of the most recent
annual valuation date of such Single Employer Plan on the basis of the
actuarial assumptions used to determine the funding requirements of such
Single Employer Plan as of such date;
(f) as soon as possible after a Responsible Officer of the Borrower
knows or reasonably should know thereof, any material adverse change in
the business, operations, property, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole; and
(g) as soon as possible after a Responsible Officer of the Borrower
knows or reasonably should know thereof, (i) any release or discharge by
the Borrower or any of its Subsidiaries of any Materials of Environmental
Concern required to be reported under applicable Environmental Laws to any
Governmental Authority, unless the Borrower reasonably determines that the
total Environmental Costs arising out of such release or discharge are
unlikely to exceed $5,000,000 or to have a Material Adverse Effect; (ii)
any condition, circumstance, occurrence or event not previously disclosed
in writing to the Administrative Agent that could result in liability
under applicable Environmental Laws unless the Borrower reasonably
determines that the total Environmental Costs arising out of such
condition, circumstance, occurrence or event are unlikely to exceed
$5,000,000 or to have a Material Adverse Effect, or could result in the
imposition of any lien or other restriction on the title, ownership or
transferability of any facilities and properties owned, leased or operated
by the Borrower or any of its Subsidiaries; and (iii) any proposed action
to be taken by the Borrower or any of its Subsidiaries that would
reasonably be expected to subject Holding or any of its Subsidiaries to
any material additional or different requirements or liabilities under
Environmental Laws, unless the Borrower reasonably determines that the
total Environmental Costs arising out of such proposed action are unlikely
to exceed $5,000,000 or to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a
statement of a Responsible Officer of the Borrower (and, if applicable, the
relevant Commonly Controlled Entity or Subsidiary) setting forth details of the
occurrence referred to therein and stating what action the Borrower (or, if
applicable, the relevant Commonly Controlled Entity or Subsidiary) proposes to
take with respect thereto.
7.8. ENVIRONMENTAL LAWS. (a) (i) Comply substantially with, and require
substantial compliance by all tenants, subtenants, contractors, and invitees
with, all applicable Environmental Laws; (ii) obtain, comply substantially with
and maintain any and all Environmental Permits necessary for its operations as
conducted and as planned; and (iii) require that all tenants, subtenants,
contractors, and invitees obtain, comply substantially with and maintain any and
all Environmental Permits necessary for their operations as conducted and as
planned, with respect to any property leased or subleased from, or operated by
the Borrower or its Subsidiaries. For purposes of this subsection 7.8(a), the
Borrower and its Subsidiaries shall
be deemed to comply substantially, or require substantial compliance, with an
Environmental Law or an Environmental Permit, PROVIDED that, upon learning of
any actual or suspected noncompliance, the Borrower and any such affected
Subsidiary shall promptly undertake reasonable efforts, if any, to achieve
compliance, and PROVIDED, FURTHER, that in any case such noncompliance would not
reasonably be expected to have a Material Adverse Effect.
(b) Conduct and complete or cause to be conducted and completed all
investigations, studies, sampling and testing, and all remedial, removal, and
other actions required under applicable Environmental Laws; and promptly comply
with all orders and directives of all Governmental Authorities regarding
Environmental Laws, (i) except where non-compliance with any such order or
directive would not reasonably be expected to have a Material Adverse Effect or
(ii) other than any such order or directive as to which an appeal or other
appropriate contest is or has been timely and properly taken, is being
diligently pursued in good faith, and as to which appropriate reserves have been
established in accordance with GAAP, and, if the effectiveness of such order or
directive has not been stayed, the pendency of such appeal or other appropriate
contest does not give rise to a Material Adverse Effect.
(c) Maintain, update as appropriate, and implement in all material
respects an ongoing program to ensure that all the properties and operations of
the Borrower and its Subsidiaries are regularly and reasonably reviewed by
competent professionals to identify and promote compliance with and to
reasonably and prudently manage any liabilities or potential liabilities under
any Environmental Law that may affect the Borrower or any of its Subsidiaries,
including, without limitation, compliance and liabilities relating to:
discharges to air and water; acquisition, transportation, storage and use of
hazardous materials; waste disposal; repair, maintenance and improvement of
properties; employee health and safety; species protection; and recordkeeping
(the "ENVIRONMENTAL PROGRAM").
7.9. AFTER-ACQUIRED REAL PROPERTY AND FIXTURES. (a) With respect to any
owned real property or fixtures, in each case with a purchase price or a fair
market value of at least $500,000 (or, in the case of timberland, $1,000,000),
in which the Borrower or any of its Subsidiaries (other than a Foreign
Subsidiary, a Subsidiary of a Foreign Subsidiary, or a Special Purpose
Subsidiary) acquires ownership rights at any time after the Closing Date,
promptly grant to the Administrative Agent, for the benefit of the Lenders, a
Lien of record on all such owned real property and fixtures, upon terms
reasonably satisfactory in form and substance to the Administrative Agent and in
accordance with any applicable requirements of any Governmental Authority
(including, without limitation, any required appraisals of such property under
FIRREA); PROVIDED that (i) nothing in this subsection 7.9 shall defer or impair
the attachment or perfection of any security interest in any Collateral covered
by any of the Security Documents which would attach or be perfected pursuant to
the terms thereof without action by the Borrower, any of its Subsidiaries or any
other Person and (ii) no such Lien shall be required to be granted as
contemplated by this subsection 7.9 on any owned real property or fixtures the
acquisition of which is financed, or is to be financed within any time period
permitted by subsection 8.2(d) or (e), in whole or in part through the
incurrence of Indebtedness permitted by subsection 8.2(d) or (e), until such
Indebtedness is repaid in full (and not refinanced as permitted by subsection
8.2(d) or (e)) or, as the case may be, the Borrower determines not to proceed
with such financing or
refinancing. In connection with any such grant to the Administrative Agent, for
the benefit of the Lenders, of a Lien of record on any such real property in
accordance with this subsection, the Borrower or such Subsidiary shall deliver
or cause to be delivered to the Administrative Agent any surveys, title
insurance policies, environmental reports and other documents in connection with
such grant of such Lien obtained by it in connection with the acquisition of
such ownership rights in such real property or as the Administrative Agent shall
reasonably request (in light of the value of such real property and the cost and
availability of such surveys, title insurance policies, environmental reports
and other documents and whether the delivery of such surveys, title insurance
policies, environmental reports and other documents would be customary in
connection with such grant of such Lien in similar circumstances).
(b) With respect to any Domestic Subsidiary created or acquired
subsequent to the Closing Date by the Borrower or any of its Domestic
Subsidiaries (other than a Subsidiary of a Foreign Subsidiary), promptly notify
the Administrative Agent of such occurrence and if the Administrative Agent or
the Required Lenders so request (it being understood that if the Administrative
Agent does not so request with respect to any such Domestic Subsidiary that it
believes is or is likely to become material to the Borrower and its Subsidiaries
taken as a whole, it will provide notice to the Lenders thereof), promptly (i)
execute and deliver to the Administrative Agent for the benefit of the Lenders
such amendments to the Guarantee and Collateral Agreement as the Administrative
Agent shall reasonably deem necessary or reasonably advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first priority
security interest (as and to the extent provided in the Guarantee and Collateral
Agreement) in the Capital Stock of such new Domestic Subsidiary, (ii) deliver
(or, in the case of a Special Purpose Subsidiary, cause to be delivered) to the
Administrative Agent the certificates (if any) representing such Capital Stock,
together with undated stock powers, executed and delivered in blank by a duly
authorized officer of the parent corporation of such new Domestic Subsidiary and
(iii) unless such Subsidiary is a Special Purpose Subsidiary, cause such new
Domestic Subsidiary (A) to become a party to the Guarantee and Collateral
Agreement and (B) to take all actions reasonably deemed by the Administrative
Agent to be necessary or advisable to cause the Lien created by the Guarantee
and Collateral Agreement in such new Domestic Subsidiary's Collateral to be duly
perfected in accordance with all applicable Requirements of Law, including,
without limitation, the filing of financing statements in such jurisdictions as
may be reasonably requested by the Administrative Agent.
(c) With respect to any Foreign Subsidiary created or acquired
subsequent to the Closing Date by the Borrower or any of its Domestic
Subsidiaries, the Capital Stock of which is owned directly by the Borrower or a
Domestic Subsidiary (other than a Special Purpose Subsidiary or a Subsidiary of
a Foreign Subsidiary), promptly notify the Administrative Agent of such
occurrence and if the Administrative Agent or the Required Lenders so request
(it being understood that if the Administrative Agent does not so request with
respect to any such Foreign Subsidiary that it believes is or is likely to
become material to the Borrower and its Subsidiaries taken as a whole, it will
provide notice to the Lenders thereof), promptly (i) execute and deliver to the
Administrative Agent a new pledge agreement or such amendments to the Guarantee
and Collateral Agreement as the Administrative Agent shall reasonably deem
necessary or
reasonably advisable to grant to the Administrative Agent, for the benefit of
the Lenders, a perfected first priority security interest (as and to the extent
provided in the Guarantee and Collateral Agreement) in the Capital Stock of such
new Foreign Subsidiary that is owned by the Borrower or any of its Domestic
Subsidiaries (other than a Special Purpose Subsidiary or a Subsidiary of a
Foreign Subsidiary) (PROVIDED that in no event shall more than 65% of the
Capital Stock of any such new Foreign Subsidiary be required to be so pledged
and, PROVIDED, FURTHER that no such pledge or security shall be required with
respect to any non-Wholly Owned Foreign Subsidiary to the extent that the grant
of such pledge or security interest would violate the terms of any agreements
under which the Investment by the Borrower or any of its Subsidiaries was made
therein) and (ii) to the extent reasonably deemed advisable by the
Administrative Agent, deliver to the Administrative Agent the certificates, if
any, representing such Capital Stock, together with undated stock powers,
executed and delivered in blank by a duly authorized officer of the relevant
parent corporation of such new Foreign Subsidiary and take such other action as
may be reasonably deemed by the Administrative Agent to be necessary or
desirable to perfect the Administrative Agent's security interest therein.
(d) At its own expense, execute, acknowledge and deliver, or cause
the execution, acknowledgement and delivery of, and thereafter register, file or
record in an appropriate governmental office, any document or instrument
reasonably deemed by the Administrative Agent to be necessary or desirable for
the creation, perfection and priority and the continuation of the validity,
perfection and priority of the foregoing Liens or any other Liens created
pursuant to the Security Documents.
(e) At its own expense, request, and use reasonable efforts to
obtain, prior to entering into a lease of a facility located in the United
States in which Inventory will be located on or after the Closing Date (other
than any such facility for which there is not a lease of more than one year and
which the Borrower and its Subsidiaries intend to use as a seasonal storage
facility), a consent, substantially in the form of Exhibit I or such other form
as may be reasonably satisfactory to the Administrative Agent, from each
landlord of any such facility, in which such landlord acknowledges the
Administrative Agent's first priority security interest in the Inventory pledged
by each Loan Party to the Administrative Agent for the benefit of the Lenders.
SECTION 8. NEGATIVE COVENANTS
The Borrower hereby agrees that, from and after the Closing Date and
so long as the Revolving Credit Commitments remain in effect, and thereafter
until payment in full of the Loans, all Reimbursement Obligations and any other
amount then due and owing to any Lender or the Administrative Agent hereunder
and under any Note and termination or expiration of all Letters of Credit, the
Borrower shall not and shall not permit any of its Subsidiaries to, directly or
indirectly:
8.1. FINANCIAL CONDITION COVENANTS.
(a) CONSOLIDATED LEVERAGE RATIO. Permit the Consolidated Leverage
Ratio as at the last day of any period of four consecutive fiscal quarters of
Holding ending with any fiscal quarter set forth below to exceed the ratio set
forth below opposite such fiscal quarter:
Consolidated
Fiscal Quarter Leverage Ratio
-------------- --------------
September 30, 2001 - December 30, 2002 5.85 to 1.00
December 31, 2002 - December 30, 2003 5.50 to 1.00
December 31, 2003 - December 30, 2004 5.00 to 1.00
December 31, 2004 - December 30, 2005 4.70 to 1.00
December 31, 2005 - December 30, 2006 4.40 to 1.00
(b) MAINTENANCE OF CONSOLIDATED INTEREST EXPENSE RATIO. Permit, for
any period of four consecutive fiscal quarters of Holding ending during any test
period set forth below, the Consolidated Interest Expense Ratio at the last day
of such consecutive fiscal quarter period, to be less than the ratio set forth
opposite such test period below:
Consolidated
Fiscal Quarter Interest Expense Ratio
-------------- ----------------------
September 30, 2001 - December 30, 2002 1.75 to 1.00
December 31, 2002 - December 30, 2003 2.00 to 1.00
December 31, 2003 - December 30, 2004 2.10 to 1.00
December 31, 2004 - December 30, 2005 2.25 to 1.00
December 31, 2005 - December 30, 2006 2.25 to 1.00
8.2. LIMITATION ON INDEBTEDNESS. Create, incur, assume or suffer to exist
any Indebtedness (including any Indebtedness of any of its Subsidiaries),
except:
(a) Indebtedness of the Borrower under this Agreement;
(b) Indebtedness (x) evidenced by the Existing Notes; PROVIDED that
the Existing Notes shall not be extended, renewed, replaced, refinanced or
otherwise amended, except
as permitted by subsection 8.14, or (y) that extends, renews, refunds,
replaces or refinances the 1996 Senior Notes as permitted by subsection
8.14(a).
(c) Indebtedness of the Borrower to any of its Subsidiaries and of
any Subsidiary of the Borrower to the Borrower or any other Subsidiary of
the Borrower;
(d) Indebtedness of the Borrower and any of its Subsidiaries
incurred to finance or refinance the acquisition of fixed or capital
assets (whether pursuant to a loan, a Financing Lease or otherwise)
otherwise permitted pursuant to this Agreement, and any other Financing
Leases, in an aggregate principal amount not exceeding in the aggregate as
to the Borrower and its Subsidiaries $50,000,000 at any one time
outstanding, PROVIDED that such Indebtedness is incurred substantially
simultaneously with such acquisition or within six months after such
acquisition or in connection with a refinancing thereof;
(e) Indebtedness of the Borrower and any of its Subsidiaries
incurred to finance or refinance the purchase price of, or Indebtedness of
the Borrower and any of its Subsidiaries assumed in connection with, any
acquisition permitted by subsection 8.10, PROVIDED that (i) such
Indebtedness is incurred prior to, substantially simultaneously with or
within six months after such acquisition or in connection with a
refinancing thereof, (ii) if such Indebtedness is owed to a Person, other
than the Person from whom such acquisition is made or any Affiliate
thereof, such Indebtedness shall have terms and conditions reasonably
satisfactory to the Administrative Agent and shall not exceed 60% of the
purchase price of such acquisition (including any Indebtedness assumed in
connection with such acquisition) (or such greater percentage as shall be
reasonably satisfactory to the Administrative Agent or, if any such
purchase price shall be greater than $25,000,000, such greater percentage
as shall be reasonably satisfactory to the Required Lenders) and (iii)
immediately after giving effect to such acquisition no Default or Event of
Default shall have occurred and be continuing;
(f) to the extent that any Indebtedness may be incurred or arise
thereunder, Indebtedness of the Borrower and its Subsidiaries under
Interest Rate Protection Agreements and under Permitted Hedging
Arrangements;
(g) other Indebtedness outstanding or incurred under facilities in
existence on the Closing Date and listed on Schedule 8.2(g), and any
refinancings, refundings, renewals or extensions thereof on financial and
other terms, in the reasonable judgment of the Borrower, no more onerous
to the Borrower or any of its Subsidiaries in the aggregate than the
financial and other terms of such Indebtedness, PROVIDED that the amount
of such Indebtedness is not increased at the time of such refinancing,
refunding, renewal or extension except by an amount equal to the premium
or other amounts paid, and fees and expenses incurred, in connection with
such refinancing, refunding, renewal or extension;
(h) to the extent that any Guarantee Obligation permitted under
subsection 8.4 constitutes Indebtedness, such Indebtedness;
(i) Indebtedness of the Borrower or any of its Subsidiaries pursuant
to any Permitted Receivables Transaction; PROVIDED that upon the
effectiveness of any such Permitted Receivables Transaction, the Revolving
Credit Loans and Swing Line Loans shall be automatically prepaid, the L/C
Obligations shall be automatically cash collateralized and the Revolving
Credit Commitments shall be automatically and permanently reduced to the
extent required by subsections 4.4(d) and 4.4(g);
(j) Indebtedness of Foreign Subsidiaries of the Borrower (in
addition to Indebtedness of Foreign Subsidiaries of the Borrower permitted
by subsection 8.2(g)) for working capital purposes (including in respect
of overdrafts) not exceeding, as to all such Foreign Subsidiaries,
$50,000,000 in aggregate principal amount at any one time outstanding;
(k) Indebtedness of the Borrower or any of its Subsidiaries in
respect of Sale and Leaseback Transactions permitted under subsection
8.12;
(l) Indebtedness of the Borrower or any of its Subsidiaries incurred
to finance insurance premiums in the ordinary course of business;
(m) Indebtedness of any Foreign Subsidiary of the Borrower fully
supported on the date of the incurrence thereof by a Foreign Backstop
Letter of Credit;
(n) Indebtedness arising from the honoring of a check, draft or
similar instrument against insufficient funds; PROVIDED that such
Indebtedness is extinguished within two Business Days of its incurrence;
(o) Indebtedness in respect of Financing Leases which have been
funded solely by Investments of the Borrower and its Subsidiaries
permitted by subsection 8.9(m);
(p) Machinery Financing Indebtedness; PROVIDED that, (i) the sum of
the aggregate Machinery Financing Indebtedness incurred pursuant to this
subsection 8.2(p) and all Attributable Debt permitted pursuant to
subsection 8.12(iii) shall not exceed $75,000,000 at any one time
outstanding and (ii) the aggregate book value of packaging machines owned
by the Borrower or any of its Subsidiaries on the Closing Date that are
refinanced by Machinery Financing Indebtedness pursuant to this subsection
8.2(p) or are sold and leased back pursuant to Sale and Leaseback
Transactions permitted pursuant to subsection 8.12(iii) shall not exceed
$50,000,000; and
(q) Indebtedness not otherwise permitted by the preceding clauses of
this subsection 8.2 not exceeding $20,000,000 in aggregate principal
amount at any one time outstanding.
For purposes of determining compliance with clauses (g), (j) and (q)
of this subsection 8.2, the amount of any Indebtedness denominated in any
currency other than U.S. Dollars shall be calculated based on customary currency
exchange rates in effect, in the case of
such Indebtedness incurred (in respect of term debt) or committed (in respect of
revolving debt) on or prior to the Closing Date, on the Closing Date and, in the
case of such Indebtedness incurred (in respect of term debt) or committed (in
respect of revolving debt) after the Closing Date, on the date that such
Indebtedness was incurred (in respect of term debt) or committed (in respect of
revolving debt).
8.3. LIMITATION ON LIENS. Create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes, assessments and similar charges not yet
delinquent or the nonpayment of which in the aggregate would not
reasonably be expected to have a Material Adverse Effect, or which are
being contested in good faith by appropriate proceedings diligently
conducted and adequate reserves with respect thereto are maintained on the
books of the Borrower or its Subsidiaries, as the case may be, in
conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than 60 days or which are being
contested in good faith by appropriate proceedings diligently conducted;
(c) Liens of landlords or of mortgagees of landlords arising by
operation of law or pursuant to the terms of real property leases,
PROVIDED that the rental payments secured thereby are not yet due and
payable;
(d) pledges, deposits or other Liens in connection with workers'
compensation, unemployment insurance, other social security benefits or
other insurance related obligations (including, without limitation,
pledges or deposits securing liability to insurance carriers under
insurance or self-insurance arrangements);
(e) Liens arising by reason of any judgment, decree or order of any
court or other Governmental Authority, if appropriate legal proceedings
which may have been duly initiated for the review of such judgment, decree
or order, are being diligently prosecuted and shall not have been finally
terminated or the period within which such proceedings may be initiated
shall not have expired;
(f) Liens to secure the performance of bids, trade contracts (other
than for borrowed money), obligations for utilities, leases, statutory
obligations, surety and appeal bonds, performance bonds, judgment and like
bonds, replevin and similar bonds and other obligations of a like nature
incurred in the ordinary course of business;
(g) zoning restrictions, easements, rights-of-way, restrictions on
the use of property, other similar encumbrances incurred in the ordinary
course of business and minor irregularities of title, or, in the case of
timberland, discrepancies, conflicts in boundary lines, shortages in area,
encroachments or any other facts which a correct
survey would disclose, which do not materially interfere with the ordinary
conduct of the business of the Borrower and its Subsidiaries taken as a
whole;
(h) Liens securing or consisting of Indebtedness of the Borrower and
its Subsidiaries permitted by subsection 8.2(d) incurred to finance the
acquisition of fixed or capital assets or Indebtedness of the Borrower and
its Subsidiaries permitted by subsection 8.2(e) incurred to finance the
purchase price of, or assumed in connection with, any acquisition
permitted by subsection 8.10, PROVIDED that (i) such Liens shall be
created no later than the later of the date of such acquisition or the
date of the incurrence or assumption of such Indebtedness, and (ii) such
Liens do not at any time encumber any property other than the property
financed by such Indebtedness and, in the case of Indebtedness assumed in
connection with any such acquisition, the property subject thereto
immediately prior to such acquisition;
(i) Liens existing on assets or properties at the time of the
acquisition thereof by the Borrower or any of its Subsidiaries which do
not materially interfere with the use, occupancy, operation and
maintenance of structures existing on the property subject thereto or
extend to or cover any assets or properties of the Borrower or such
Subsidiary other than the assets or property being acquired;
(j) Liens (i) in existence on the Closing Date and listed in
Schedule 8.3(j) and other Liens securing Indebtedness of the Borrower and
its Subsidiaries permitted by subsection 8.2(g), PROVIDED that no such
Lien is spread to cover any additional property after the Closing Date and
that the amount of Indebtedness secured thereby is not increased except as
permitted by subsection 8.2(g), or (ii) not otherwise permitted hereunder,
all of which Liens permitted pursuant to this subsection 8.3(j)(ii) secure
obligations not exceeding (as to the Borrower and all of its Subsidiaries)
$10,000,000 in aggregate amount at any time outstanding;
(k) Liens securing Guarantee Obligations permitted under subsection
8.4(f) not exceeding (as to the Borrower and all of its Subsidiaries)
$5,000,000 in aggregate amount at any time outstanding;
(l) Liens created pursuant to the Security Documents;
(m) Liens created pursuant to and in accordance with any Permitted
Receivables Transaction;
(n) Liens in favor of lessees or sublessees of packaging machinery
leased or subleased to customers of the Borrower and its Subsidiaries on
such packaging machinery and related rights;
(o) any encumbrance or restriction (including, without limitation,
put and call agreements) with respect to the Capital Stock of any joint
venture or similar arrangement pursuant to the joint venture or similar
agreement with respect to such joint venture or
similar arrangement, PROVIDED that no such encumbrance or restriction
affects in any way the ability of the Borrower or any of its Subsidiaries
to comply with subsection 7.9(b) or (c).
(p) Liens on property subject to Sale and Leaseback Transactions
permitted under subsection 8.12 and general intangibles related thereto;
(q) easements, rights-of-way, servitudes, restrictive covenants,
permits, licenses, use agreements, surface leases, subsurface leases or
other similar encumbrances (including hunting and recreational leases and
leases and other encumbrances in respect of pipelines, compressor stations
and television antennas) on, over or in respect of timberland, none of
which, singly or in the aggregate, materially adversely affects the
operations of the Borrower and its Subsidiaries or the value of such
timberland;
(r) pay-as-you-harvest timber sales agreements, lump sum timber
deeds or sales agreements and similar encumbrances entered into in the
ordinary course of business;
(s) Liens on property of any Foreign Subsidiary of the Borrower
securing Indebtedness of such Foreign Subsidiary of the Borrower permitted
by subsection 8.2(j);
(t) Liens on property financed or refinanced by Machinery Financing
Indebtedness permitted by subsection 8.2(p) securing such Machinery
Financing Indebtedness; and
(u) Liens on Intellectual Property (as defined in subsection 5.9) or
on foreign patents, trademarks, trade names, copyrights, technology,
know-how or processes; PROVIDED that such Liens result from the granting
of licenses in the ordinary course of business to any Person to use such
Intellectual Property or such foreign patents, trademarks, trade names,
copyrights, technology, know-how or processes, as the case may be.
8.4. LIMITATION ON GUARANTEE OBLIGATIONS. Create, incur, assume or suffer
to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the Closing Date and
listed in Schedule 8.4(a), and any refinancings, refundings, extensions or
renewals thereof, PROVIDED that the amount of such Guarantee Obligation
shall not be increased at the time of such refinancing, refunding,
extension or renewal except to the extent that the amount of Indebtedness
in respect of such Guarantee Obligations is permitted to be increased by
subsection 8.2(g);
(b) Guarantee Obligations in connection with up to an aggregate
principal amount of $25,000,000 of Indebtedness outstanding at any time
incurred by any Management Investors in connection with any Management
Subscription Agreements or other purchases by them of Capital Stock of
Holding, and any refinancings, refundings,
extensions or renewals thereof; PROVIDED that such amount shall be reduced
by the aggregate then outstanding principal amount of loans and advances
permitted by subsection 8.9(o);
(c) Guarantee Obligations for performance, appeal, judgment,
replevin and similar bonds and suretyship arrangements, all in the
ordinary course of business;
(d) Guarantee Obligations in respect of indemnification and
contribution agreements expressly permitted by subsection 8.11(iv) or
similar agreements by the Borrower;
(e) Reimbursement Obligations in respect of the Letters of Credit;
(f) Guarantee Obligations in respect of third-party loans and
advances to officers or employees of the Borrower or any of its
Subsidiaries (i) for travel and entertainment expenses incurred in the
ordinary course of business, (ii) for relocation expenses incurred in the
ordinary course of business, or (iii) for other purposes in an aggregate
amount (as to Holding and all of its Subsidiaries), together with the
aggregate amount of all Investments permitted under subsection 8.9(e)(iv),
of up to $2,500,000 outstanding at any time;
(g) obligations to insurers required in connection with worker's
compensation and other insurance coverage incurred in the ordinary course
of business;
(h) obligations of the Borrower and its Subsidiaries under any
Interest Rate Protection Agreements or under Permitted Hedging
Arrangements;
(i) Guarantee Obligations incurred in connection with acquisitions
permitted under subsection 8.10, PROVIDED that if any such Guarantee
Obligation inures to the benefit of any Person other than the Person from
whom such acquisition is made or any Affiliate thereof, such Guarantee
Obligation shall not exceed, with respect to any such acquisition, 60% of
the purchase price of such acquisition (including any Indebtedness assumed
in connection with any such acquisition) (or such greater percentage as
shall be reasonably satisfactory to the Administrative Agent or, if any
such purchase price shall be greater than $25,000,000, such greater
percentage shall be reasonably satisfactory to the Required Lenders);
(j) guarantees made in the ordinary course of its business by the
Borrower or any of its Subsidiaries of obligations of the Borrower or any
of its Subsidiaries, which obligations are otherwise permitted under this
Agreement;
(k) Guarantee Obligations in connection with sales or other
dispositions permitted under subsection 8.6, including indemnification
obligations with respect to leases, and guarantees of collectability in
respect of accounts receivable or notes receivable for up to face value;
(l) Guarantee Obligations incurred pursuant to the Guarantee and
Collateral Agreement or otherwise in respect of Indebtedness permitted by
subsection 8.2(a);
(m) Guarantees by Subsidiaries of the Borrower set forth in the
Existing Note Documents, which, in the case of such Guarantees set forth
in the 1996 Senior Subordinated Notes and the 1996 Senior Subordinated
Note Documents are subordinated as provided therein;
(n) (i) Guarantee Obligations represented by contracts entered into
by the Borrower or any of its Subsidiaries for the purchase of woodchips
in the ordinary course of business and (ii) accommodation guarantees for
the benefit of trade creditors of the Borrower or any of its Subsidiaries
in the ordinary course of business;
(o) Guarantee Obligations of the Borrower and its Subsidiaries in
respect of recourse events in connection with any Permitted Receivables
Transaction; and
(p) Guarantee Obligations in respect of Indebtedness of a Person in
connection with a joint venture or similar arrangement in respect of which
no other co-investor or other Person has a greater legal or beneficial
ownership interest than the Borrower or any of its Subsidiaries, and as to
all of such Persons does not at any time exceed $30,000,000 in aggregate
principal amount; PROVIDED that (i) such amount shall be increased by an
amount equal to $10,000,000 on each anniversary of the Closing Date, so
long as no Default or Event of Default shall have occurred and be
continuing on any date on which such amount is to be increased and (ii)
such amount and any increase in such amount permitted by clause (i) shall
be reduced by the aggregate amount of Investments permitted by subsection
8.9(l).
8.5. LIMITATION ON FUNDAMENTAL CHANGES. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, except:
(a) any Subsidiary of the Borrower may be merged or consolidated
with or into the Borrower (PROVIDED that the Borrower shall be the
continuing or surviving corporation) or with or into any one or more
Wholly Owned Subsidiaries of the Borrower (PROVIDED that the Wholly Owned
Subsidiary or Subsidiaries of the Borrower shall be the continuing or
surviving entity);
(b) any Subsidiary of the Borrower may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation
or otherwise) to the Borrower or any Wholly Owned Subsidiary of the
Borrower; and
(c) as expressly permitted by subsection 8.6.
8.6. LIMITATION ON SALE OF ASSETS. Convey, sell, lease, assign, transfer
or otherwise dispose of any of its property, business or assets (including,
without limitation, receivables and leasehold interests), whether now owned or
hereafter acquired, or, in the case of any Subsidiary of the Borrower, issue or
sell any shares of such Subsidiary's Capital Stock, to any Person other than the
Borrower or any Wholly Owned Subsidiary of the Borrower, except:
(a) the sale or other Disposition of obsolete, worn out or surplus
property, whether now owned or hereafter acquired, in the ordinary course
of business;
(b) the sale or other Disposition of any property (including
Inventory) in the ordinary course of business (including Dispositions of
timber properties in connection with the management thereof or in
connection with tax free or similar exchanges for other properties);
(c) the sale or discount without recourse of accounts receivable or
notes receivable arising in the ordinary course of business, or the
conversion or exchange of accounts receivable into or for notes
receivable, in connection with the compromise or collection thereof;
PROVIDED that, in the case of any Foreign Subsidiary of the Borrower, any
such sale or discount may be with recourse if such sale or discount is
consistent with customary practice in such Foreign Subsidiary's country of
business;
(d) as permitted by subsection 8.5(b) and pursuant to Sale and
Leaseback Transactions permitted by subsection 8.12;
(e) the sale, transfer or discount of Receivables pursuant to any
Permitted Receivables Transaction; PROVIDED that upon the effectiveness of
any such Permitted Receivables Transaction, the Revolving Credit Loans and
Swing Line Loans shall be prepaid, the L/C Obligations shall be cash
collateralized and the Revolving Credit Commitments shall be permanently
reduced to the extent required by subsections 4.4(d) and 4.4(g);
(f) Dispositions of any assets or property by the Borrower or any of
its Subsidiaries to any Wholly Owned Subsidiary of the Borrower;
(g) the abandonment or other Disposition of patents, trademarks or
other intellectual property that are, in the reasonable judgment of the
Borrower, no longer economically practicable to maintain or useful in the
conduct of the business of the Borrower and its Subsidiaries taken as a
whole;
(h) any Asset Sale by the Borrower or any of its Subsidiaries,
PROVIDED that the Net Cash Proceeds of each such Asset Sale do not exceed
$500,000 and the aggregate Net Cash Proceeds of all Asset Sales in any
fiscal year made pursuant to this paragraph (i) do not exceed $5,000,000;
and
(i) any Asset Sale contemplated on Schedule 8.6(i), or any other
Asset Sales by the Borrower or any of its Subsidiaries the Net Cash
Proceeds of which other Asset Sales do not exceed $50,000,000 in the
aggregate after the Closing Date, PROVIDED that in the case of any such
Asset Sale, an amount equal to 100% of the Net Cash Proceeds of such Asset
Sale less the Reinvested Amount is applied in accordance with subsection
4.4(b)(ii).
8.7. LIMITATION ON DIVIDENDS. Declare or pay any dividend (other than
dividends payable solely in common stock of the Borrower or options, warrants or
other rights to purchase common stock of the Borrower) on, or make any payment
on account of, or set apart assets for a sinking or other analogous fund for,
the purchase, redemption, defeasance, retirement or other acquisition of, any
shares of any class of Capital Stock of the Borrower or any warrants or options
to purchase any such Capital Stock, whether now or hereafter outstanding, or
make any other distribution (other than distributions payable solely in common
stock of the Borrower or options, warrants or other rights to purchase common
stock of the Borrower) in respect thereof, either directly or indirectly,
whether in cash or property or in obligations of the Borrower, except that:
(a) the Borrower may pay cash dividends in an amount sufficient to
allow RIC Holding and Holding to pay expenses incurred in the ordinary
course of business in an aggregate amount not to exceed $1,000,000 in any
fiscal year;
(b) the Borrower may pay cash dividends in an amount sufficient to
cover reasonable and necessary expenses (including professional fees and
expenses) incurred by Holding or RIC Holding in connection with (a)
registration, public offerings and exchange listing of equity or debt
securities and maintenance of the same, (b) compliance with reporting
obligations under federal or state laws or under this Agreement or any of
the other Loan Documents and (c) indemnification and reimbursement of
directors, officers and employees in respect of liabilities relating to
their serving in any such capacity;
(c) the Borrower may pay cash dividends in amounts sufficient to pay
taxes to be paid by Holding or RIC Holding to any taxing authority;
(d) the Borrower may pay cash dividends in an amount sufficient to
allow Holding to repurchase shares of its Capital Stock or rights, options
or units in respect thereof from any Management Investors or former
Management Investors (or any of their respective heirs, successors,
assigns, legal representatives or estates), or as otherwise contemplated
by any Management Subscription Agreements, for an aggregate purchase price
not to exceed $20,000,000 from and after the Closing Date; PROVIDED that
such amount shall be increased by (i) an amount equal to $5,000,000 on
each anniversary of the Closing Date, commencing on the first anniversary
of the Closing Date, and (ii) an amount equal to the proceeds of any
resales or new issuances of shares and options to any Management
Investors, at any time after the initial issuances to any Management
Investors, together with the aggregate amount of deferred compensation
owed by Holding
or any of its Subsidiaries to any Management Investor that shall
thereafter have been cancelled, waived or exchanged at any time after the
initial issuances to any thereof in connection with the grant to such
Management Investor of the right to receive or acquire shares of Holding
Capital Stock; PROVIDED, FURTHER, that the cash dividends paid in respect
of repurchases from Management Investors shall not exceed in the aggregate
during each fiscal year of Holding an amount equal to $6,000,000;
(e) the Borrower may pay cash dividends in an amount sufficient to
allow each of Holding and RIC Holding to pay all fees and expenses
incurred in connection with the transactions expressly contemplated by
this Agreement and the other Loan Documents, and to allow each of Holding
and RIC Holding to perform its obligations under or in connection with the
Loan Documents to which it is a party; and
(f) the Borrower may pay cash dividends in an amount sufficient to
allow RIC Holding to make all payments of principal, interest, and any
fees or other amounts payable in connection with the Existing RIC Holding
Indebtedness.
8.8. LIMITATION ON CAPITAL EXPENDITURES. Make or commit to make any
Capital Expenditures (excluding any expenses incurred in connection with normal
replacement and maintenance programs properly charged to current operations);
PROVIDED that the Borrower and its Subsidiaries may make Capital Expenditures in
an amount not to exceed, for any test period set forth below, the amount set
forth opposite such test period below:
Test Period Amount
----------- ------
January 1, 2001 - December 31, 2001 $75,000,000
January 1, 2002 - December 31, 2002 $125,000,000
January 1, 2003 - December 31, 2003 $125,000,000
January 1, 2004 - December 31, 2004 $125,000,000
January 1, 2005 - December 31, 2005 $125,000,000
January 1, 2006 - December 31, 2006 $125,000,000
; PROVIDED that (x) up to $50,000,000 of any Capital Expenditures permitted to
be made during any test period and not made during such test period may be
carried over and expended during the next succeeding test period and (y) up to
$25,000,000 of any Capital Expenditures permitted to be made during any test
period and not made during such test period (to the extent not expended during
the next succeeding test period) may be carried over and expended during the
second succeeding test period.
8.9. LIMITATION ON INVESTMENTS, LOANS AND ADVANCES. Make any advance,
loan, extension of credit or capital contribution to, or purchase any stock,
bonds, notes, debentures or other
securities of or any assets constituting a business unit of, or make any other
investment, in cash or by transfer of assets or property, in (each an
"INVESTMENT"), any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in cash and Cash Equivalents;
(c) Investments existing on the Closing Date and described in
Schedule 8.9(c), setting forth the respective amounts of such Investments
as of a recent date;
(d) Investments in notes receivable and other instruments and
securities obtained in connection with transactions permitted by
subsection 8.6(c);
(e) loans and advances to officers, directors or employees of
Holding or any of its Subsidiaries (i) in the ordinary course of business
for travel and entertainment expenses, (ii) existing on the Closing Date
and described in Schedule 8.9(c), (iii) made after the Closing Date for
relocation expenses in the ordinary course of business, (iv) made for
other purposes in an aggregate amount (as to Holding and all of its
Subsidiaries), together with the aggregate amount of all Guarantee
Obligations permitted pursuant to subsection 8.4(f)(iii), of up to
$2,500,000 outstanding at any time and (v) relating to indemnification or
reimbursement of any officers, directors or employees in respect of
liabilities relating to their serving in any such capacity or as otherwise
specified in subsection 8.11;
(f) Investments by (i) the Borrower in its Wholly Owned Subsidiaries
(other than any Receivables Subsidiary) and by such Wholly Owned
Subsidiaries in the Borrower and in Wholly Owned Subsidiaries of the
Borrower (other than any Receivables Subsidiary) and (ii) Investments in
Holding and RIC Holding in amounts and for purposes for which dividends
are permitted under subsection 8.7;
(g) acquisitions expressly permitted by subsection 8.10;
(h) Investments of the Borrower and its subsidiaries under Interest
Rate Protection Agreements or under Permitted Hedging Arrangements;
(i) Investments in the nature of pledges or deposits with respect to
leases or utilities provided to third parties in the ordinary course of
business or otherwise described in subsection 8.3(c), (d) or (f);
(j) Investments representing non-cash consideration received by the
Borrower or any of its Subsidiaries in connection with any Asset Sale,
PROVIDED that in the case of any Asset Sale permitted under subsection
8.6(i), such non-cash consideration constitutes not more than 25% of the
aggregate consideration received in connection with such Asset Sale and
any such non-cash consideration received by the Borrower or any of its
Domestic Subsidiaries is pledged to the Administrative Agent for the
benefit of the Lenders pursuant to the Security Documents;
(k) any Investment by the Borrower and its Subsidiaries in a Special
Purpose Subsidiary which, in the judgment of the Borrower, is prudent and
reasonably necessary in connection with, or otherwise required by the
terms of, any Permitted Receivables Transaction;
(l) Investments by the Borrower or any of its Subsidiaries in a
Person in connection with a joint venture or similar arrangement in
respect of which no other co-investor or other Person has a greater legal
or beneficial ownership interest than the Borrower or such Subsidiary in
an aggregate amount not to exceed at any time an amount equal to
$30,000,000; PROVIDED that (i) such amount shall be increased by an amount
equal to $10,000,000 on each anniversary of the Closing Date, so long as
no Default or Event of Default shall have occurred and be continuing on
any date on which such amount is to be increased, (ii) such amount and any
increase in such amount permitted by clause (i) shall be reduced by the
aggregate principal amount of Indebtedness in respect of Guarantee
Obligations permitted by subsection 8.4(p), and (iii) the Borrower or such
Subsidiary complies with the provisions of subsection 7.9(b) and (c)
hereof, if applicable, with respect to such ownership interest;
(m) Investments in industrial development or revenue bonds or
similar obligations secured by assets leased to and operated by the
Borrower or any of its Subsidiaries that were issued in connection with
the financing of such assets, so long as the Borrower or any such
Subsidiary may obtain title to such assets at any time by optionally
cancelling such bonds or obligations, paying a nominal fee and terminating
such financing transaction;
(n) Investments representing evidences of Indebtedness, securities
or other property received from another Person by the Borrower or any of
its Subsidiaries in connection with any bankruptcy proceeding or other
reorganization of such other Person or as a result of foreclosure,
perfection or enforcement of any Lien or exchange for evidences of
Indebtedness, securities or other property of such other Person held by
the Borrower or any of its Subsidiaries; PROVIDED that any such securities
or other property received by the Borrower or any of its Domestic
Subsidiaries (other than a Subsidiary of a Foreign Subsidiary) is pledged
to the Administrative Agent for the benefit of the Lenders pursuant to the
Security Documents;
(o) loans and advances to Management Investors in connection with
the purchase by such Management Investors of Capital Stock of Holding of
up to $25,000,000 outstanding at any one time; PROVIDED that such amount
shall be reduced by the aggregate principal amount of Indebtedness in
respect of Guarantee Obligations permitted by subsection 8.4(b); and
(p) Investments not otherwise permitted by the preceding clauses of
this subsection 8.9 not to exceed in the aggregate $10,000,000.
8.10. LIMITATIONS ON CERTAIN ACQUISITIONS. Acquire by purchase or
otherwise all the business or assets of, or stock or other evidences of
beneficial ownership of, any Person, except that the Borrower and its
Subsidiaries shall be allowed to make any such acquisitions so long as (i) such
acquisition is expressly permitted by subsection 8.5 or (ii) the aggregate
consideration paid by the Borrower and its Subsidiaries in connection with all
such acquisitions made pursuant to this clause (ii) since the Closing Date does
not exceed at any time an amount equal to $30,000,000; PROVIDED that such amount
shall be increased by an amount equal to $10,000,000 on each anniversary of the
Closing Date, so long as no Default or Event of Default shall have occurred and
be continuing on any date on which such amount is to be increased; PROVIDED,
FURTHER that in the case of each such acquisition pursuant to clauses (i) and
(ii), after giving effect thereto, no Default or Event of Default shall occur as
a result of such acquisition.
8.11. LIMITATION ON TRANSACTIONS WITH AFFILIATES. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a) otherwise permitted under this Agreement, and (b) upon
terms no less favorable to the Borrower or such Subsidiary, as the case may be,
than it would obtain in a comparable arm's length transaction with a Person
which is not an Affiliate; PROVIDED that nothing contained in this subsection
8.11 shall be deemed to prohibit:
(i) the Borrower or any of its Subsidiaries from entering into
or performing any consulting, management or employment agreements or
other compensation arrangements with a director, officer or employee
of the Borrower or any of its Subsidiaries that provides for annual
aggregate base compensation not in excess of $1,000,000 for each
such director, officer or employee;
(ii) the Borrower or any of its Subsidiaries from entering
into or performing an agreement with CD&R for the rendering of
management consulting or financial advisory services for
compensation not to exceed in the aggregate $1,000,000 per year plus
reasonable out-of-pocket expenses;
(iii) the payment of transaction expenses in connection with
this Agreement;
(iv) the Borrower or any of its Subsidiaries from entering
into, making payments pursuant to and otherwise performing an
indemnification and contribution agreement in favor of any Permitted
Holder and each person who is or becomes a director, officer, agent
or employee of the Borrower or any of its Subsidiaries, in respect
of liabilities (A) arising under the Securities Act, the Exchange
Act and any other applicable securities laws or otherwise, in
connection with any offering of securities by Holding or any of its
Subsidiaries, (B) incurred to third parties for any action or
failure to act of the Borrower or any of its Subsidiaries,
predecessors or successors, (C) arising out of the performance by
CD&R of management consulting or financial advisory services
provided to the Borrower or any of its Subsidiaries, (D) arising out
of the fact that any indemnitee was or is a director, officer, agent
or employee of the Borrower or any of its
Subsidiaries, or is or was serving at the request of any such
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or enterprise or (E)
to the fullest extent permitted by Delaware or other applicable
state law, arising out of any breach or alleged breach by such
indemnitee of his or her fiduciary duty as a director or officer of
the Borrower or any of its Subsidiaries;
(v) the Borrower or any of its Subsidiaries from performing
any agreements or commitments with or to any Affiliate existing on
the Closing Date and described on Schedule 8.11(v); or
(vi) any transaction permitted under subsection 8.3(k),
8.4(b), 8.4(d), 8.4(f), 8.5, 8.7, 8.9(e), 8.9(f) or 8.9(o), or any
transaction with a Wholly Owned Subsidiary of the Borrower.
For purposes of this subsection 8.11, (A) any transaction with any
Affiliate shall be deemed to have satisfied the standard set forth in clause (b)
of the first sentence hereof if (i) such transaction is approved by a majority
of the Disinterested Directors of the board of directors of Holding, RIC
Holding, the Borrower or such Subsidiary, or (ii) in the event that at the time
of any such transaction, there are no Disinterested Directors serving on the
board of directors of Holding, RIC Holding, the Borrower or such Subsidiary,
such transaction shall be approved by a nationally recognized expert with
expertise in appraising the terms and conditions of the type of transaction for
which approval is required, and (B) "DISINTERESTED DIRECTOR" shall mean, with
respect to any Person and transaction, a member of the board of directors of
such Person who does not have any material direct or indirect financial interest
in or with respect to such transaction.
8.12. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS. Enter into any
arrangement with any Person providing for the leasing by the Borrower or any of
its Subsidiaries of real or personal property which has been or is to be sold or
transferred by the Borrower or any such Subsidiary to such Person or to any
other Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Borrower or such
Subsidiary (any of such arrangements, a "SALE AND LEASEBACK TRANSACTION"), other
than in connection with any Disposition permitted under subsection 8.6 and
except for (i) Sale and Leaseback Transactions in which funds have been advanced
solely by Investments of the Borrower and its Subsidiaries permitted by
subsection 8.9(m), (ii) Sale and Leaseback Transactions entered into by the
Borrower or any such Subsidiary with respect to real or personal property with
an aggregate book value not to exceed $5,000,000 at any one time and (iii) Sale
and Leaseback Transactions entered into with respect to packaging machines under
which the Borrower or any of its Subsidiaries has sold and leased back such
machines in the ordinary course of its business, for the purpose of subleasing
such machines in the ordinary course of its business to customers of the
Borrower and its Subsidiaries in an amount determined for any such machine to be
equal to the fair value thereof; PROVIDED that (i) the sum of the then
Attributable Debt in respect of such Sale and Leaseback Transactions and the
amount of Machinery Financing Indebtedness incurred pursuant to subsection
8.2(p) shall not exceed $75,000,000 at
any time outstanding and (ii) the aggregate book value of packaging machines
owned by the Borrower or any of its Subsidiaries on the Closing Date that are
refinanced by Machinery Financing Indebtedness pursuant to subsection 8.2(p) or
are sold and leased back pursuant to Sale and Leaseback Transactions permitted
pursuant to this subsection 8.12(iii) shall not exceed $50,000,000.
8.13. LIMITATIONS ON DISPOSITIONS OF COLLATERAL. Convey, sell, transfer,
lease, or otherwise dispose of any of the Collateral, or attempt, offer or
contract to do so, except for (a) mergers, consolidations, sales, leases,
transfers or other Dispositions expressly permitted under subsection 8.5 and (b)
sales or other Dispositions expressly permitted under subsection 8.6, including,
without limitation, sales of Inventory in the ordinary course of business; and
the Administrative Agent shall, and the Lenders hereby authorize the
Administrative Agent to, execute such releases of Liens and take such other
actions as the Borrower may reasonably request in connection with the foregoing.
8.14. LIMITATION ON OPTIONAL PAYMENTS AND MODIFICATIONS OF DEBT
INSTRUMENTS AND OTHER DOCUMENTS. (a) Make any optional payment or prepayment on
or repurchase or redemption of any Existing Notes (other than as provided in the
definition thereof), including, without limitation, any payments on account of,
or for a sinking or other analogous fund for, the repurchase, redemption,
defeasance or other acquisition thereof, except mandatory payments of principal,
interest, fees and expenses required by the terms of the Existing Note
Indentures (and, in the case of the 1996 Senior Subordinated Notes and the 1996
Senior Subordinated Note Indenture, only to the extent permitted under the
subordination provisions applicable thereto); PROVIDED, that the 1996 Senior
Notes may be extended, renewed, refunded, replaced or refinanced (collectively,
"REFINANCED") on terms substantially similar to, or more favorable to the
Borrower and its Subsidiaries than, the terms governing the 1996 Senior Notes
and providing for a scheduled maturity date for the Indebtedness that refinances
the 1996 Senior Notes no earlier than January 1, 2008.
(b) In the event of the occurrence of a Change of Control,
repurchase the Existing Notes or any portion thereof, unless the Borrower shall
have (i) made payment in full of the Loans, all Reimbursement Obligations and
any other amounts then due and owing to any Lender or the Administrative Agent
hereunder and under any Note and cash collateralized the L/C Obligations on
terms reasonably satisfactory to the Administrative Agent or (ii) made an offer
to pay the Loans, all Reimbursement Obligations and any amounts then due and
owing to each Lender and the Administrative Agent hereunder and under any Note
and to cash collateralize the L/C Obligations in respect of each Lender and
shall have made payment in full thereof to each such Lender or the
Administrative Agent which has accepted such offer and cash collateralized the
L/C Obligations in respect of each such Lender which has accepted such offer.
(c) Amend, supplement, waive or otherwise modify any of the
provisions of any Existing Note Document:
(i) which, in the case of the 1996 Senior Subordinated Notes
and the 1996 Senior Subordinated Note Indenture, amends or modifies
the subordination provisions contained therein;
(ii) which shortens the fixed maturity or increases the
principal amount of, or increases the rate or shortens the time of
payment of interest on, or increases the amount or shortens the time
of payment of any principal or premium payable whether at maturity,
at a date fixed for prepayment or by acceleration or otherwise of
the Indebtedness evidenced by the Existing Notes, or increases the
amount of, or accelerates the time of payment of, any fees or other
amounts payable in connection therewith;
(iii) which relates to any material affirmative or negative
covenants or any events of default or remedies thereunder and the
effect of which is to subject the Borrower or any of its
Subsidiaries to any more onerous or more restrictive provisions; or
(iv) which otherwise adversely affects the interests of the
Lenders as senior creditors with respect to the 1996 Senior
Subordinated Notes or the interests of the Lenders under this
Agreement or any other Loan Document in any material respect.
(d) Enter into any Synthetic Purchase Agreement if under such
Synthetic Purchase Agreement it may be required to make (x) any payment relating
to the Capital Stock of Holding that has the same economic effect on the
Borrower and its Subsidiaries as any Investment by the Borrower in Capital Stock
of Holding prohibited by subsection 8.9 above or (y) any payment relating to any
Existing Notes that has the same economic effect on the Borrower as any optional
payment or prepayment or repurchase or redemption of such Existing Notes
prohibited by subsection 8.14(a) above, unless, in each case, such requirement
is conditioned upon obtaining any requisite consent of the Lenders hereunder.
8.15. LIMITATION ON CHANGES IN FISCAL YEAR. Permit the fiscal year of
Holding or the Borrower to end on a day other than December 31.
8.16. LIMITATION ON NEGATIVE PLEDGE CLAUSES. Enter into with any Person
any agreement, other than (a) this Agreement, the other Loan Documents and any
related documents, (b) any agreements with respect to Machinery Financing
Indebtedness permitted under this Agreement and any related documents and (c)
any industrial revenue or development bonds, purchase money mortgages,
acquisition agreements or Financing Leases or agreements in connection with any
Permitted Receivables Transaction permitted by this Agreement (in which cases,
any prohibition or limitation shall only be effective against the assets
financed or acquired thereby) or operating leases of real property entered into
in the ordinary course of business, which prohibits or limits the ability of the
Borrower or any of its Subsidiaries (other than any Special Purpose Subsidiaries
and any Foreign Subsidiaries or Subsidiaries thereof) to create, incur, assume
or suffer to exist any Lien in favor of the Lenders in respect of obligations
and
liabilities under this Agreement or any other Loan Documents upon any of its
property, assets or revenues, whether now owned or hereafter acquired.
8.17. LIMITATION ON LINES OF BUSINESS. Enter into any business, either
directly or through any Subsidiary or joint venture or similar arrangement
described in subsection 8.9(l), except for those businesses of the same general
type as those in which the Borrower and its Subsidiaries are engaged on the
Closing Date or which are directly related thereto.
8.18. ESTABLISHMENT AND MAINTENANCE OF LOCKBOX ACCOUNTS. (a) Establish or
maintain, or cause to be established or maintained, any bank or trust account in
which any Collateral or the proceeds thereof is to be deposited by or on behalf
of any Obligor, except:
(i) a "Lockbox Account" established in accordance with a
Lockbox Agreement;
(ii) any trust account for the deposit of funds payable under
any contract covered by any surety or performance bond, which is not
a "Lockbox Account;"
(iii) bank accounts into which amounts being paid or
transferred to the Borrower and its Subsidiaries pursuant to
arrangements or agreements in existence on the Closing Date are
deposited which are not "Lockbox Accounts" so long as (x) the
balances in such accounts are transferred every second Business Day
with respect to accounts maintained in the United States and every
fifth Business Day with respect to accounts maintained outside of
the United States to a Collateral Proceeds Account (as defined in
the Guarantee and Collateral Agreement) to the extent that the
aggregate balance in any such account exceeds $250,000 on such
Business Day and (y) neither the Borrower nor any of its
Subsidiaries materially changes, in a manner materially adverse to
the Lenders, without the consent of the Administrative Agent, the
mechanisms by which Accounts Receivable (as defined in the Guarantee
and Collateral Agreement) are collected from that in effect on the
Closing Date;
(iv) to the extent that arrangements or agreements are not in
existence on the Closing Date, bank accounts into which amounts paid
by Obligors located outside the United States of America or amounts
denominated in currencies other than Dollars may be deposited which
are not "Lockbox Accounts" so long as (x) such accounts are
maintained with banks which are reasonably satisfactory to the
Administrative Agent and amounts are deposited into such accounts on
terms reasonably satisfactory to the Administrative Agent and (y)
the balances in such accounts are transferred the second Business
Day with respect to accounts maintained in the United States and
every fifth Business Day with respect to accounts maintained outside
of the United States after the Borrower is notified of such deposit
to a Collateral Proceeds Account (as defined in the Guarantee and
Collateral Agreement) to the extent that the aggregate balances in
all such
accounts exceed $250,000 (or the equivalent thereof in any currency
other than Dollars) on such Business Day; and
(v) in the event of the consummation of any Permitted
Receivables Transaction, (x) the proceeds of Accounts Receivables
(as defined in the Guarantee and Collateral Agreement) or other
property or assets subject to such Permitted Receivables Transaction
may be maintained pursuant to arrangements other than "Lockbox
Accounts" and (y) the proceeds of Accounts Receivables not subject
to such Permitted Receivables Transaction may be maintained pursuant
to arrangements other than "Lockbox Accounts" so long as such
arrangements provide for the periodic transfer of such Accounts
Receivables proceeds to a Collateral Proceeds Account (as defined in
the Guarantee and Collateral Agreement) and such arrangements are
otherwise in form and substance reasonably satisfactory to the
Administrative Agent.
Take any action, or omit to take any action, under any Lockbox
Agreement which would reasonably be expected to have a material adverse effect
on the validity or enforceability of such Agreement (including, without
limitation, the orderly collection of amounts due from Obligors), except as
otherwise contemplated hereby or by the terms of such Lockbox Agreement.
8.19. LIMITATIONS ON CURRENCY AND COMMODITY HEDGING TRANSACTIONS. Enter
into, purchase or otherwise acquire agreements or arrangements relating to
currency, commodity or other hedging except, to the extent and only to the
extent that, such agreements or arrangements are entered into, purchased or
otherwise acquired in the ordinary course of business of the Borrower or any of
its Subsidiaries with reputable financial institutions and not for purposes of
speculation (any such agreement or arrangement permitted by this subsection, a
"PERMITTED HEDGING ARRANGEMENT").
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan or any
Reimbursement Obligation when due in accordance with the terms hereof
(whether at stated maturity, by mandatory prepayment or otherwise); or the
Borrower shall fail to pay any interest on any Loan, or any other amount
payable hereunder, within five days after any such interest or other
amount becomes due in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document (or in any amendment,
modification or supplement hereto or thereto) or which is contained in any
certificate furnished at any time by or on behalf of any Loan Party
pursuant to this Agreement or any such other Loan Document shall prove to
have been incorrect in any material respect on or as of the date made or
deemed made; or
(c) Any Loan Party shall default in the observance or performance of
any agreement contained in subsection 7.7(a) or Section 8 of this
Agreement; PROVIDED, that, in the case of a default in the observance or
performance of its obligations under subsection 7.7(a) hereof, such
default shall have continued unremedied for a period of two days after a
Responsible Officer of the Borrower shall have discovered or should have
discovered such default; or
(d) Any Loan Party shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section 9),
and such default shall continue unremedied for a period ending on the
earlier of (i) the date 32 days after a Responsible Officer of RIC Holding
shall have discovered or should have discovered such default and (ii) the
date 15 days after written notice has been given to RIC Holding by the
Administrative Agent or the Required Lenders; or
(e) Holding or any of its Subsidiaries shall (i) default in (x) any
payment of principal of or interest on any Indebtedness (other than the
Loans and the Reimbursement Obligations) in excess of $15,000,000 or (y)
in the payment of any Guarantee Obligation in excess of $15,000,000,
beyond the period of grace (not to exceed 30 days), if any, provided in
the instrument or agreement under which such Indebtedness or Guarantee
Obligation was created; or (ii) default in the observance or performance
of any other agreement or condition relating to any Indebtedness or
Guarantee Obligation referred to in clause (i) above or contained in any
instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit the holder or holders
of such Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice or lapse
of time if required, such Indebtedness to become due prior to its stated
maturity or such Guarantee Obligation to become payable (an
"ACCELERATION"), and such time shall have lapsed and, if any notice (a
"DEFAULT NOTICE") shall be required to commence a grace period or declare
the occurrence of an event of default before notice of Acceleration may be
delivered, such Default Notice shall have been given; or
(f) (i) Any Loan Party shall commence any case, proceeding or other
action (A) under any existing or future law of any jurisdiction, domestic
or foreign, relating to bankruptcy, insolvency, reorganization or relief
of debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts,
or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or any Loan Party shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against any Loan Party
any case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged,
unstayed or unbonded for a period of 60 days; or (iii) there
shall be commenced against any Loan Party any case, proceeding or other
action seeking issuance of a warrant of attachment, execution, distraint
or similar process against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall not have
been vacated, discharged, stayed or bonded pending appeal within 60 days
from the entry thereof; or (iv) any Loan Party shall take any corporate
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) any Loan Party shall be generally unable to, or shall admit
in writing its general inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of
either of the Borrower or any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which Reportable
Event or commencement of proceedings or appointment of a trustee is in the
reasonable opinion of the Administrative Agent likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA,
(v) either of the Borrower or any Commonly Controlled Entity shall, or in
the reasonable opinion of the Administrative Agent is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan, or (vi) any other event or
condition shall occur or exist with respect to a Plan; and in each case in
clauses (i) through (vi) above, such event or condition, together with all
other such events or conditions, if any, could be reasonably expected to
result in a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving in the aggregate at any time
a liability (net of any insurance or indemnity payments actually received
in respect thereof prior to or within 60 days from the entry thereof, or
to be received in respect thereof in the event any appeal thereof shall be
unsuccessful) of $15,000,000 or more, and all such judgments or decrees
shall not have been vacated, discharged, stayed or bonded pending appeal
within 60 days from the entry thereof; or
(i) The 1996 Senior Subordinated Notes, for any reason, shall not be
or shall cease to be validly subordinated as provided therein and in the
1996 Senior Subordinated Note Documents to the obligations of the Borrower
under this Agreement and the other Loan Documents, or the obligations of
any other Loan Party under a guarantee of the 1996 Senior Subordinated
Notes, for any reason, shall not be or shall cease to be validly
subordinated as provided therein and in the 1996 Senior Subordinated Note
Documents to the obligations of such Loan Party under the Guarantee to
which it is a party; or
(j) (i) Any of the Security Documents shall cease for any reason to
be in full force and effect (other than pursuant to the terms hereof or
thereof), or any Loan Party which is a party to any of the Security
Documents shall so assert in writing, or (ii) the Lien created by any of
the Security Documents shall cease to be perfected and enforceable in
accordance with its terms or of the same effect as to perfection and
priority purported to be created thereby with respect to any significant
portion of the Collateral (other than in connection with any termination
of such Lien in respect of any Collateral as permitted hereby or by any
Security Document), and such failure of such Lien to be perfected and
enforceable with such priority shall have continued unremedied for a
period of 20 days; or
(k) Any Loan Document (other than this Agreement or any of the
Security Documents) shall cease for any reason to be in full force and
effect (other than pursuant to the terms hereof or thereof) or any Loan
Party shall so assert in writing; or
(l) A Change of Control shall have occurred; or
(m) Any event or circumstance entitling the Persons purchasing, or
financing the purchase of, Receivables under any Permitted Receivables
Transaction to stop so purchasing or financing, other than by reason of
the occurrence of the stated expiry date of such Permitted Receivables
Transaction, a refinancing of such Permitted Receivables Transaction
through another Permitted Receivables Transaction, a reduction in any
applicable borrowing base, or the occurrence of any other event or
circumstance which is not, or is not related primarily to, an action or
statement taken or made, or omitted to be taken or made, by or on behalf
of, or a condition of or relating to, Holding or any of its Subsidiaries;
PROVIDED that any notices or cure periods that are conditions to the
rights of such Persons to stop purchasing, or financing the purchase of,
such Receivables have been given or have expired, as the case may be;
then, and in any such event, (A) if such event is an Event of
Default specified in clause (i) or (ii) of paragraph (f) above with respect to
the Borrower, automatically the Revolving Credit Commitments and the Term Loan
Commitments, if any, shall immediately terminate and the Loans hereunder (with
accrued interest thereon) and all other amounts owing under this Agreement
(including, without limitation, all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) shall immediately become due and payable, and
(B) if such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders the
Administrative Agent shall, by notice to the Borrower, declare the Revolving
Credit Commitments and the Term Loan Commitments to be terminated forthwith,
whereupon the Revolving Credit Commitments and the Term Loan Commitments, if
any, shall immediately terminate; and (ii) with the consent of the Required
Lenders, the Administrative Agent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice to the Borrower, declare the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement (including, without limitation, all amounts of L/C
Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit shall
have presented the documents required thereunder) to be due and payable
forthwith, whereupon the same shall immediately become due and payable.
With respect to any Letter of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to the preceding paragraph, the Borrower in respect of such Letter of
Credit shall at such time deposit in a cash collateral account opened by the
Administrative Agent an amount equal to the aggregate then undrawn and unexpired
amount of such Letter of Credit. The Borrower hereby grants to the
Administrative Agent, for the benefit of the Issuing Lender and the L/C
Participants, a security interest in such cash collateral to secure all
obligations of the Borrower in respect of such Letter of Credit under this
Agreement and the other Loan Documents. The Borrower shall execute and deliver
to the Administrative Agent, for the account of the Issuing Lender and the L/C
Participants, such further documents and instruments as the Administrative Agent
may request to evidence the creation and perfection of such security interest in
such cash collateral account. Amounts held in such cash collateral account shall
be applied by the Administrative Agent to the payment of drafts drawn under such
Letter of Credit, and the unused portion thereof after all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be applied to
repay other obligations of the Borrower hereunder. After all Letters of Credit
shall have expired or been fully drawn upon, all Reimbursement Obligations shall
have been satisfied and all other obligations of the Borrower hereunder shall
have been paid in full, the balance, if any, in such cash collateral account
shall be returned to the Borrower.
Except as expressly provided above in this Section 9, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 10. THE ADMINISTRATIVE AGENT AND THE OTHER
REPRESENTATIVES
10.1. APPOINTMENT. Each Lender hereby irrevocably designates and appoints
Chase as the Administrative Agent of such Lender under this Agreement and the
other Loan Documents, and each such Lender irrevocably authorizes Chase, as the
Administrative Agent for such Lender, to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent and the Other Representatives shall not have any duties or
responsibilities, except, in the case of the Administrative Agent and the
Issuing Lender, those expressly set forth herein, or any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Administrative Agent or the Other
Representatives.
10.2. DELEGATION OF DUTIES. The Administrative Agent may execute any of
its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact,
and shall be entitled to advice of counsel concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact or counsel selected
by it with reasonable care.
10.3. EXCULPATORY PROVISIONS. None of the Administrative Agent or any
Other Representative nor any of their officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by such Person under or in connection with this
Agreement or any other Loan Document (except for the gross negligence or willful
misconduct of such Person or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates) or (ii) responsible in any manner to any of the
Lenders for any recitals, statements, representations or warranties made by the
Borrower or any other Loan Party or any officer thereof contained in this
Agreement or any other Loan Document or in any certificate, report, statement or
other document referred to or provided for in, or received by the Administrative
Agent under or in connection with, this Agreement or any other Loan Document or
for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any Notes or any other Loan Document or for any
failure of the Borrower or any other Loan Party to perform its obligations
hereunder or thereunder. Neither the Administrative Agent nor any Other
Representative shall be under any obligation to any Lender to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Agreement or any other Loan Document, or to inspect
the properties, books or records of the Borrower or any other Loan Party. Each
Lender agrees that, except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Administrative Agent hereunder or
given to the Administrative Agent for the account of or with copies for the
Lenders, the Administrative Agent and the Other Representatives shall not have
any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of the Borrower or any other Loan
Party which may come into the possession of the Administrative Agent and the
Other Representatives or any of their officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
10.4. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Borrower, Holding or RIC Holding),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified as between itself and the Lenders
in failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders and/or such other requisite percentage of the Lenders as is
required pursuant to subsection 11.1(a) as it deems appropriate or it shall
first be indemnified to its satisfaction by the Lenders against any and all
liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement and any Notes and
the other Loan Documents in accordance with a request of the Required Lenders
and/or such other requisite percentage of the Lenders as is required pursuant to
subsection 11.1(a), and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.
10.5. NOTICE OF DEFAULT. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or
the Borrower or RIC Holding referring to this Agreement, describing such Default
or Event of Default and stating that such notice is a "notice of default". In
the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action reasonably promptly with respect to
such Default or Event of Default as shall be directed by the Required Lenders
and/or such other requisite percentage of the Lenders as is required pursuant to
subsection 11.1(a); PROVIDED that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
10.6. ACKNOWLEDGEMENTS AND REPRESENTATIONS BY LENDERS. Each Lender
expressly acknowledges that none of the Administrative Agent or the Other
Representatives nor any of their officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties to it
and that no act by the Administrative Agent or any Other Representative
hereafter taken, including any review of the affairs of the Borrower or any
other Loan Party, shall be deemed to constitute any representation or warranty
by the Administrative Agent or such Other Representative to any Lender. Each
Lender represents to the Administrative Agent, the Other Representatives and
each of the Loan Parties that, independently and without reliance upon the
Administrative Agent, the Other Representatives or any other Lender, and based
on such documents and information as it has deemed appropriate, it has made and
will make its own appraisal of and investigation into the business, operations,
property, financial and other condition and creditworthiness of the Borrower and
the other Loan Parties, it has made its own decision to make its Loans hereunder
and enter into this Agreement and it will make its own decisions in taking or
not taking action under this Agreement and the other Loan Documents. Each Lender
represents to each other party hereto that it is a bank, savings and loan
association or other similar savings institution, insurance company, investment
fund or company or other financial institution which makes or acquires
commercial loans in the ordinary course of its business, that it is
participating hereunder as a Lender for such commercial purposes, and that it
has the knowledge and experience to be and is capable of evaluating the merits
and risks of being a Lender hereunder. Each Lender acknowledges and agrees to
comply with the provisions of subsection 11.6 applicable to the Lenders
hereunder.
10.7. INDEMNIFICATION. The Lenders agree to indemnify the Administrative
Agent and the Other Representatives in their capacities as such (to the extent
not reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to their
respective Total Credit Percentages in effect on the date on which
indemnification is sought under this subsection (or, if indemnification is
sought after the date upon which the Revolving Credit Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with their Total Credit Percentages immediately prior to such date), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Loans) be imposed on, incurred by or asserted
against the Administrative Agent or any Other Representative in any way relating
to or arising out of this Agreement, any of the other Loan Documents or the
transactions contemplated hereby or thereby or any action taken or omitted by
the Administrative Agent or any Other Representative under or in connection with
any of the foregoing; PROVIDED that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements to the extent
arising from (i) the Administrative Agent's or any Other Representative's gross
negligence or willful misconduct or (ii) claims made or legal proceedings
commenced against the Administrative Agent or any Other Representative by any
securityholder or creditor thereof arising out of and based upon rights afforded
any such securityholder or creditor solely in its capacity as such. The
obligations to indemnify the Issuing Lender and Swing Line Lender shall be
ratable among the Revolving Credit Lenders in accordance with their respective
Revolving Credit Commitments (or, if the Revolving Credit Commitments have been
terminated, the outstanding principal amount of their respective Revolving
Credit Loans and L/C Obligations and their respective participating interests in
the outstanding Letters of Credit and shall be payable only by the Revolving
Credit Lenders). The agreements in this subsection shall survive the payment of
the Loans and all other amounts payable hereunder.
10.8. ADMINISTRATIVE AGENT AND OTHER REPRESENTATIVES IN THEIR INDIVIDUAL
CAPACITY. The Administrative Agent, the Other Representatives and their
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Borrower or any other Loan Party as though the
Administrative Agent and the Other Representatives were not the Administrative
Agent and the Other Representatives hereunder and under the other Loan
Documents. With respect to Loans made or renewed by them and any Note issued to
them and with respect to any Letter of Credit issued or participated in by them,
the Administrative Agent and the Other Representatives shall have the same
rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though they were not the Administrative
Agent or an Other Representative, and the terms "Lender" and "Lenders" shall
include the Administrative Agent in its individual capacity.
10.9. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may resign
as Administrative Agent upon 10 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from among
the Lenders a successor agent (which shall be a bank) for the Lenders, which
successor agent shall be approved by the Borrower (such approval not to be
unreasonably withheld), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean
such successor agent effective upon such appointment and approval, and the
former Administrative Agent's rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this subsection shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.
10.10. SYNDICATION AGENT. The Syndication Agent shall not have any duties
or responsibilities hereunder in its capacity as such.
10.11. SWING LINE LENDER. The provisions of this Section 10 shall apply to
the Swing Line Lender in its capacity as such to the same extent that such
provisions apply to the Administrative Agent.
SECTION 11. MISCELLANEOUS
11.1. AMENDMENTS AND WAIVERS. (a) Neither this Agreement nor any other
Loan Document, nor any terms hereof or thereof, may be amended, supplemented or
modified except in accordance with the provisions of this subsection. The
Required Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (x) enter into with the Loan
Parties hereto or thereto, as the case may be, written amendments, supplements
or modifications hereto and to the other Loan Documents for the purpose of
adding any provisions to this Agreement or to the other Loan Documents or
changing in any manner the rights or obligations of the Lenders or the Loan
Parties hereunder or thereunder or (y) waive at any Loan Party's request, on
such terms and conditions as the Required Lenders or the Administrative Agent,
as the case may be, may specify in such instrument, any of the requirements of
this Agreement or the other Loan Documents or any Default or Event of Default
and its consequences; PROVIDED, HOWEVER, that no such waiver and no such
amendment, supplement or modification shall:
(i) reduce the amount or extend the scheduled date of maturity
of any Loan or any Reimbursement Obligation or of any scheduled
installment thereof or reduce the stated rate of any interest or fee
payable hereunder or extend the scheduled date of any payment
thereof or increase the amount or extend the expiration date of any
Lender's Revolving Credit Commitment or change the currency in which
any Loan or Reimbursement Obligation is payable, in each case
without the consent of each Lender directly affected thereby;
PROVIDED, that, any such waiver, amendment, supplement or
modification relating to the terms of any extension, renewal,
refunding, replacement or refinancing of the 1996 Senior Notes shall
be deemed not to extend the scheduled date of maturity of any Loan
or any Reimbursement Obligation or of any scheduled installment
thereof or extend the scheduled date of any payment thereof or
extend the expiration date of any Lender's Revolving Credit
Commitment;
(ii) amend, modify or waive any provision of this subsection
11.1(a) or reduce the percentage specified in the definition of
Required Lenders or Required Collateral Release Lenders, or consent
to the assignment or transfer by Holding, RIC Holding or Riverwood
of any of its rights and obligations under this Agreement and the
other Loan Documents (other than pursuant to subsection 8.5 or
11.1(b)), in each case without the written consent of all the
Lenders;
(iii) release any Guarantor under the Guarantee and Collateral
Agreement or, in the aggregate (in a single transaction or a series
of related transactions), substantially all of the Collateral
without the consent of the Required Collateral Release Lenders,
except as expressly permitted hereby or by any Security Document (as
such documents are in effect on the date hereof or, if later, the
date of execution and delivery thereof in accordance with the terms
hereof);
(iv) subject to paragraph (i) of this subsection 11.1(a),
amend, modify or waive any provision of subsection 2.5 or subsection
2.6 without the written consent of the Term Loan Lenders the Term
Loan Percentages of which aggregate at least 51%;
(v) amend, modify or waive any provision of subsection 2.1,
2.2, 2.3 or 2.4 or, subject to paragraph (i) of this subsection
11.1(a), Section 3 without the written consent of the Revolving
Credit Lenders the Revolving Credit Commitment Percentages of which
aggregate at least 51%;
(vi) amend, modify or waive any provision of Section 10
without the written consent of the then Administrative Agent and of
any Other Representative affected thereby;
(vii) amend, modify or waive any provision of the Swing Line
Note (if any) or subsection 2.4 without the written consent of the
Swing Line Lender and each other Lender, if any, which holds, or is
required to purchase, a participation in any Swing Line Loan
pursuant to subsection 2.4(d); or
(viii) amend, modify or waive (x) subsection 8.1 or (y) any
provision of this Agreement at a time when any Default or Event of
Default has occurred and is continuing which amendment, waiver or
modification would have the effect of eliminating any such Default
or Event of Default, in each case, for the purposes of determining
whether the conditions precedent set forth in Section 6 to the
making of any Revolving Credit Loan has been satisfied, without the
written consent of Revolving Credit Lenders the Revolving Credit
Commitment Percentages of which aggregate at least 51%; or
(ix) amend, modify or waive the provisions of any Letter of
Credit or any L/C Obligation without the written consent of the
Issuing Lender and each affected L/C Participant.
Any waiver and any amendment, supplement or modification pursuant to
this subsection 11.1 shall apply to each of the Lenders and shall be binding
upon the Loan Parties, the Lenders, the Administrative Agent and all future
holders of the Loans. In the case of any waiver, each of the Loan Parties, the
Lenders and the Administrative Agent shall be restored to their former position
and rights hereunder and under the other Loan Documents, and any Default or
Event of Default waived shall be deemed to be cured and not continuing; but no
such waiver shall extend to any subsequent or other Default or Event of Default,
or impair any right consequent thereon.
(b) Notwithstanding any provision herein to the contrary, this
Agreement may be amended (or amended and restated) with the written consent of
the Required Lenders, the Administrative Agent and the Borrower (a) to add one
or more additional credit facilities to this Agreement and to permit the
extensions of credit from time to time outstanding thereunder and the accrued
interest and fees in respect thereof to share ratably in the benefits of this
Agreement and the other Loan Documents with the existing Facilities and the
accrued interest and fees in respect thereof and (b) to include, as appropriate,
the Lenders holding such credit facilities in any required vote or action of the
Required Lenders or of the Lenders of each Facility hereunder.
11.2. NOTICES. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by telecopy), and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered by hand, or three days after being deposited in the
mail, postage prepaid, or, in the case of telecopy notice, when received, or, in
the case of delivery by a nationally recognized overnight courier, when
received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as set forth in Schedule A in the case of the other
parties hereto, or to such other address as may be hereafter notified by the
respective parties hereto and any future holders of the Loans:
The Borrower: Riverwood International Corporation
0000 Xxxxxxxxx Xxxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Treasurer
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
and
Attention: Legal Department
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy to: Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx, Esq.
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Administrative
Agent: The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Chase Manhattan Bank Loan and
with a copy to: Agency Services
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
PROVIDED that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.2, 2.7, 4.2, 4.4 or 4.8 shall not be
effective until received.
11.3. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no delay
in exercising, on the part of the Administrative Agent, any Lender or any Loan
Party, any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
11.4. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made hereunder and in the other Loan Documents (or in any amendment,
modification or supplement hereto or thereto) and in any certificate delivered
pursuant hereto or such other Loan Documents shall survive the execution and
delivery of this Agreement and the making of the Loans hereunder.
11.5. PAYMENT OF EXPENSES AND TAXES. The Borrower agrees (a) to pay or
reimburse the Administrative Agent and the Other Representatives for all their
reasonable out-of-pocket costs and expenses incurred in connection with the
preparation, execution and delivery of, and
any amendment, supplement, waiver or modification to, this Agreement and the
other Loan Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions
(including the syndication of the Revolving Credit Commitments and Term Loans
(including the reasonable expenses of the Administrative Agent's due diligence
investigation) and the monitoring of the Collateral) contemplated hereby and
thereby, including, without limitation, the reasonable fees and disbursements of
one firm of counsel to the Administrative Agent and the Other Representatives,
(b) to pay or reimburse each Lender, each Other Representative and the
Administrative Agent for all its reasonable costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent, the Other Representatives and the several Lenders, and any
reasonable Environmental Costs incurred by any of them arising out of or in any
way relating to any Loan Party or any property in which any Loan Party has had
any interest at any time, (c) to pay, and indemnify and hold harmless each
Lender, the Administrative Agent and the Other Representatives from and against,
any and all recording and filing fees and any and all liabilities with respect
to, or resulting from any delay in paying, stamp, excise and other similar
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and (d) to pay, and indemnify and
hold harmless each Lender, the Administrative Agent and the Other
Representatives (and their respective directors, trustees, officers, employees,
agents, successors and assigns) from and against, any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever (whether or not
caused by any such Person's own negligence (other than gross negligence) and
including, without limitation, the reasonable fees and disbursements of counsel)
with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such other
documents (regardless of whether the Administrative Agent, any such Other
Representative or any Lender is a party to the litigation or other proceeding
giving rise thereto and regardless of whether any such litigation or other
proceeding is brought by the Borrower or any other Person), including, without
limitation, any of the foregoing relating to the violation of, noncompliance
with, or liability under, any Environmental Laws or any orders, requirements or
demands of Governmental Authorities related thereto applicable to the operations
of the Borrower, any of its Subsidiaries or any of the facilities and properties
owned, leased or operated by the Borrower or any of its Subsidiaries (all the
foregoing in this clause (d), collectively, the "INDEMNIFIED LIABILITIES"),
PROVIDED that the Borrower shall not have any obligation hereunder to the
Administrative Agent, any such Other Representative or any Lender with respect
to Environmental Costs or indemnified liabilities arising from (i) the gross
negligence or willful misconduct of the Administrative Agent, any Other
Representative or any such Lender (or any of their respective directors,
trustees, officers, employees, agents, successors and assigns) or (ii) claims
made or legal proceedings commenced against the Administrative Agent, any Other
Representative or any such Lender by any securityholder or creditor thereof
arising out of and based upon rights afforded any such securityholder or
creditor solely in its capacity as such.
Notwithstanding the foregoing, except as provided in clauses (b) and (c) above,
the Borrower shall have no obligation under this subsection 11.5 to the
Administrative Agent, any Other Representative or any Lender with respect to any
tax, levy, impost, duty, charge, fee, deduction or withholding imposed, levied,
collected, withheld or assessed by any Governmental Authority. The agreements in
this subsection shall survive repayment of the Loans and all other amounts
payable hereunder.
11.6. SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS. (a) This
Agreement shall be binding upon and inure to the benefit of each of the Loan
Parties party hereto, the Lenders, the Administrative Agent, the Other
Representatives, all future holders of the Loans and their respective successors
and assigns, except that none of the Loan Parties may, other than in accordance
with subsection 8.5, assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of each Lender.
(b) Any Lender other than a Conduit Lender may, in the ordinary
course of its business, and in accordance with applicable law, at any time sell
to one or more banks or other entities ("PARTICIPANTS") participating interests
in any Loan owing to such Lender, any Revolving Credit Commitment of such Lender
or any other interest of such Lender hereunder and under the other Loan
Documents; PROVIDED that (unless the Borrower and the Administrative Agent
otherwise consent in writing) no such participating interests shall be in an
aggregate principal amount of less than $1,000,000 in the aggregate (or, if
less, the full amount of such selling Lender's Revolving Credit Loans, Term
Loans and Revolving Commitments). In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender's obligations under this
Agreement to the other parties to this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof, such Lender
shall remain the holder of any such Loan for all purposes under this Agreement
and the other Loan Documents and the Loan Parties and the Administrative Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and the other Loan
Documents. Any agreement pursuant to which any Lender shall sell any such
participating interest shall provide that such Lender shall retain the sole
right and responsibility to exercise such Lender's rights and enforce each of
the Loan Parties' obligations hereunder, including the right to consent to any
amendment, supplement, modification or waiver of any provision of this Agreement
or any of the other Loan Documents, PROVIDED that such participation agreement
may provide that such Lender will not agree to any amendment, supplement,
modification or waiver described in clause (i) or (ii) of the proviso to the
second sentence of subsection 11.1(a) without the consent of the Participant.
The Borrower agrees that each Lender shall be entitled to the benefits of
subsections 4.9, 4.10, 4.11, 4.12 and 11.5 without regard to whether it has
granted any participating interests, and that all amounts payable to a Lender
under subsections 4.9, 4.10, 4.11, 4.12 and 11.5 shall be determined as if such
Lender had not granted any such participating interests.
(c) Any Lender other than any Conduit Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time and
from time to time assign to any Lender or any Lender Affiliate or, with the
prior written consent of the Borrower and the Administrative Agent (which in
each case shall not be unreasonably withheld), to an additional
bank or financial institution (an "ASSIGNEE") all or any part of its rights and
obligations under this Agreement, including, without limitation, its Revolving
Credit Commitment, Term Loan Commitments and Loans, pursuant to an Assignment
and Acceptance, substantially in the form of Exhibit F, executed by such
Assignee, such assigning Lender (and, in the case of an Assignee that is not
then a Lender or a Lender Affiliate thereof, by the Borrower and the
Administrative Agent) and delivered to the Administrative Agent for its
acceptance and recording in the Register; PROVIDED that (i) (unless the Borrower
and the Administrative Agent otherwise consent in writing) no such transfer to
an Assignee (other than a Lender or any Affiliate thereof) shall be in an
aggregate principal amount less than $1,000,000 in the aggregate (or, if less,
the full amount of such assigning Lender's Term Loans, Revolving Credit Loans,
Term Loan Commitments and Revolving Credit Commitment) and (ii) if any Lender
assigns all or any part of its rights and obligations under this Agreement to
one of its Affiliates in connection with or in contemplation of the sale or
other disposition of its interest in such Affiliate, the Borrower's prior
written consent shall be required for such assignment. Upon such execution,
delivery, acceptance and recording, from and after the effective date determined
pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder with a Revolving Credit
Commitment and the Term Loan Commitment and the Term Loans, as set forth
therein, and (y) the assigning Lender thereunder shall be released from its
obligations under this Agreement to the extent that such obligations shall have
been expressly assumed by the Assignee pursuant to such Assignment and
Acceptance (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such assigning Lender shall cease to be a party hereto but shall
nevertheless continue to be entitled to the benefits of subsections 4.10, 4.11,
4.12 and 11.5). Notwithstanding the foregoing, any Conduit Lender may assign at
any time to its designating Lender hereunder without the consent of the Borrower
or the Administrative Agent any or all of the Loans it may have funded hereunder
and pursuant to its designation agreement and without regard to the limitations
set forth in the first sentence of this subsection 11.6(c). Notwithstanding the
foregoing, no Assignee, which as of the date of any assignment to it pursuant to
this subsection 11.6(c) would be entitled to receive any greater payment under
subsection 4.10 or 4.11 than the assigning Lender would have been entitled to
receive as of such date under such subsections with respect to the rights
assigned, shall be entitled to receive such payments unless the Borrower has
expressly consented in writing to waive the benefit of this provision at the
time of the assignment.
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at its address referred to in subsection 11.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "REGISTER") for the
recordation of the names and addresses of the Lenders and the Revolving Credit
Commitment and Term Loan Commitments of, and the principal amount of the Loans
owing to, and any Notes evidencing such Loans owned by, each Lender from time to
time. Notwithstanding anything in this Agreement to the contrary, the Borrower,
the Administrative Agent and the Lenders shall treat each Person whose name is
recorded in the Register as the owner of any Loan, any Notes and the Revolving
Credit Commitments and Term Loan Commitments recorded therein for all purposes
of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(e) Notwithstanding anything in this Agreement to the contrary, no
assignment under subsection 11.6(c) of any rights or obligations under or in
respect of the Loans or the Notes evidencing such Loans shall be effective
unless and until the Administrative Agent shall have recorded the assignment
pursuant to subsection 11.6(d). Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an Assignee (and, in the case of an Assignee
that is not then a Lender or an Affiliate thereof, by the Borrower and the
Administrative Agent), together with payment to the Administrative Agent of a
registration and processing fee of $4,000 (which fee need not be paid in the
case of any assignment to an Affiliate of the assigning Lender), the
Administrative Agent shall (i) promptly accept such Assignment and Acceptance
and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give prompt notice of such
acceptance and recordation to the Lenders and the Borrower. On or prior to such
effective date, the assigning Lender shall surrender any outstanding Notes held
by it all or a portion of which are being assigned, and the Borrower, at its own
expense, shall, upon the request to the Administrative Agent by the assigning
Lender or the Assignee, as applicable, execute and deliver to the Administrative
Agent (in exchange for the outstanding Notes of the assigning Lender) a new
Revolving Credit Note, Term Note, and/or Swing Line Note, as the case may be, to
the order of such Assignee in an amount equal to (i) in the case of a Revolving
Credit Note, the lesser of (A) the amount of such Assignee's Revolving Credit
Commitment and (B) the aggregate principal amount of all Revolving Credit Loans
made by such Assignee, (ii) in the case of a Term Note, the amount of such
Assignee's Term Loans, and (iii) in the case of a Swing Line Note, the lesser of
(A) the Swing Line Commitment and (B) the aggregate principal amount of all
Swing Line Loans made by such Assignee, in each case with respect to the
relevant Loan, Swing Line Commitment, Revolving Credit Commitment or Term Loan
Commitment after giving effect to such Assignment and Acceptance and, if the
assigning Lender has retained a Swing Line Commitment, Revolving Credit
Commitment, Term Loan Commitment or Term Loan hereunder, a new Revolving Credit
Note, Term Note, and/or Swing Line Note, as the case may be, to the order of the
assigning Lender in an amount equal to (i) in the case of a Revolving Credit
Note, the lesser of (A) the amount of such Lender's Revolving Credit Commitment
and (B) the aggregate principal amount of all Revolving Credit Loans made by
such Lender, (ii) in the case of a Term Note, the amount of such Lender's Term
Loans, and (iii) in the case of a Swing Line Note, the lesser of (A) the Swing
Line Commitment and (B) the aggregate principal amount of all Swing Line Loans
made by such Lender, in each case with respect to the relevant Loan, Swing Line
Commitment, Revolving Credit Commitment or Term Loan Commitment after giving
effect to such Assignment and Acceptance. Any such new Notes shall be dated the
Closing Date and shall otherwise be in the form of the Note replaced thereby.
Any Notes surrendered by the assigning Lender shall be returned by the
Administrative Agent to the Borrower marked "cancelled".
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "TRANSFEREE") and any prospective Transferee,
subject to the provisions
of subsection 11.16, any and all information in such Lender's possession
concerning the Borrower and their Affiliates which has been delivered to such
Lender by or on behalf of the Borrower pursuant to this Agreement or which has
been delivered to such Lender by or on behalf of the Borrower in connection with
such Lender's credit evaluation of the Borrower and its Affiliates prior to
becoming a party to this Agreement. No assignment or participation made or
purported to be made to any Transferee shall be effective without the prior
written consent of the Borrower if it would require the Borrower to make any
filing with any Governmental Authority or qualify any Loan or Note under the
laws of any jurisdiction, and the Borrower shall be entitled to request and
receive such information and assurances as it may reasonably request from any
Lender or any Transferee to determine whether any such filing or qualification
is required or whether any assignment or participation is otherwise in
accordance with applicable law.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection 11.6 concerning assignments
relate only to absolute assignments and that such provisions do not prohibit any
pledge or assignment (i) by a Lender to any Federal Reserve Bank in accordance
with applicable law or (ii) by any Lender of any Loan to any trustee with
respect to a pool of collateralized loan obligations which includes the
obligations owing to such Lender hereunder, PROVIDED that the foreclosure or
similar action by such trustee shall be subject to the provisions of this
subsection concerning assignments and such foreclosure or similar action shall
be void and of no force or effect unless effected in compliance with such
provisions.
(h) The Borrower, each Lender and the Administrative Agent hereby
confirms that it will not institute against a Conduit Lender or join any other
Person in instituting against a Conduit Lender any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding under any state bankruptcy or
similar law, for one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Conduit Lender; PROVIDED, however,
that each Lender designating any Conduit Lender hereby agrees to indemnify, save
and hold harmless each other party hereto for any loss, cost, damage or expense
arising out of its inability to institute such a proceeding against such Conduit
Lender during such period of forbearance. Each such indemnifying Lender shall
pay in full any claim received from the Borrower pursuant to this subsection
11.6(h) within 30 Business Days of receipt of a certificate from a Responsible
Officer of the Borrower specifying in reasonable detail the cause and amount of
the loss, cost, damage or expense in respect of which the claim is being
asserted, which certificate shall be conclusive absent manifest error. Without
limiting the indemnification obligations of any indemnifying Lender pursuant to
this subsection 11.6(h), in the event that the indemnifying Lender fails timely
to compensate the Borrower for such claim, any Loans held by the relevant
Conduit Lender shall, if requested by the Borrower, be assigned promptly to the
Lender that administers the Conduit Lender and the designation of such Conduit
Lender shall be void.
11.7. ADJUSTMENTS; SET-OFF. (a) If any Lender (a "BENEFITTED LENDER")
shall at any time receive any payment of all or part of its Revolving Credit
Loans, Term Loans or the Reimbursement Obligations owing to it, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the
nature referred to in subsection 9(f), or otherwise (except pursuant to
subsection 4.4, 4.13(d) or 11.6)), in a greater proportion than any such payment
to or collateral received by any other Lender, if any, in respect of such other
Lender's Revolving Credit Loans, Term Loans or the Reimbursement Obligations, as
the case may be, owing to it, or interest thereon, such benefitted Lender shall
purchase for cash from the other Lenders an interest (by participation,
assignment or otherwise) in such portion of each such other Lender's Revolving
Credit Loans, Term Loans or the Reimbursement Obligations, as the case may be,
owing to it, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefitted Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; PROVIDED, HOWEVER, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon the occurrence of an Event of Default under subsection
9(a) to set-off and appropriate and apply against any amount then due and
payable under subsection 9(a) any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or the
account of the Borrower. Each Lender agrees promptly to notify the Borrower and
the Administrative Agent after any such set-off and application made by such
Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application.
11.8. JUDGMENT. (a) If for the purpose of obtaining judgment in any court
it is necessary to convert a sum due hereunder in one currency into another
currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency on the Business Day
preceding the day on which final judgment is given.
(b) The obligations of the Borrower in respect of this Agreement and
any Note due to any party hereto or any holder of any bond shall,
notwithstanding any judgment in a currency (the "judgment currency") other than
the currency in which the sum originally due to such party or such holder is
denominated (the "original currency"), be discharged only to the extent that on
the Business Day following receipt by such party or such holder (as the case may
be) of any sum adjudged to be so due in the judgment currency such party or such
holder (as the case may be) may in accordance with normal banking procedures
purchase the original currency with the judgment currency; if the amount of the
original currency so purchased is less than the sum originally due to such party
or such holder (as the case may be) in the original currency, the Borrower
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify such party or such holder (as the case may be) against such loss, and
if the amount of the original
currency so purchased exceeds the sum originally due to any party to this
Agreement or any holder of Notes (as the case may be), such party or such holder
(as the case may be), agrees to remit to the Borrower, such excess. This
covenant shall survive the termination of this Agreement and payment of the
Loans and all other amounts payable hereunder.
11.9. COUNTERPARTS. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of such counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be delivered to the Borrower and the
Administrative Agent.
11.10. SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.11. INTEGRATION. This Agreement and the other Loan Documents represent
the entire agreement of each of the Loan Parties party hereto, the
Administrative Agent and the Lenders with respect to the subject matter hereof,
and there are no promises, undertakings, representations or warranties by any of
the Loan Parties party hereto, the Administrative Agent or any Lender relative
to the subject matter hereof not expressly set forth or referred to herein or in
the other Loan Documents.
11.12. GOVERNING LAW. THIS AGREEMENT AND ANY NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND ANY NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
11.13. SUBMISSION TO JURISDICTION; WAIVERS. Each party hereto hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents
to which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of
the United States of America for the Southern District of New York,
and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient forum and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered
or certified mail (or any substantially similar form of mail),
postage prepaid, to the Borrower, the applicable Lender or the
Administrative Agent, as the case may be, at the address specified
in subsection 11.2 or at such other address of which the
Administrative Agent, any such Lender and the Borrower shall have
been notified pursuant thereto;
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to xxx in any other jurisdiction; and
(v) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or
proceeding referred to in this subsection any punitive damages.
11.14. ACKNOWLEDGEMENTS. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Other Representative or
Lender has any fiduciary relationship with or duty to the Borrower arising
out of or in connection with this Agreement or any of the other Loan
Documents, and the relationship between the Administrative Agent and
Lenders, on the one hand, and the Borrower, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor;
and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby and thereby among the Lenders or among the Borrower and the
Lenders.
11.15. WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY NOTES OR ANY OTHER
LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
11.16. CONFIDENTIALITY. The Administrative Agent and each Lender agrees to
keep confidential any information (a) provided to it by or on behalf of RIC
Holding, the Borrower or any of their Subsidiaries pursuant to or in connection
with the Loan Documents or (b) obtained by such Lender based on a review of the
books and records of Holding, RIC Holding, the Borrower or any of their
Subsidiaries; PROVIDED that nothing herein shall prevent any Lender from
disclosing any such information (i) to the Administrative Agent or any other
Lender, (ii) to any Transferee, or prospective Transferee or any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations which
agrees to comply with the provisions of this subsection pursuant to an
instrument for the benefit of the Borrower (it being understood that each
relevant Lender shall be solely responsible for obtaining such instrument),
(iii) to its affiliates and the employees, officers, directors, agents,
attorneys, accountants and other professional advisors of it and its affiliates,
PROVIDED that such Lender shall inform each such Person of the agreement under
this subsection 11.16 and take reasonable actions to cause compliance by any
such Person referred to in this clause (iii) with this agreement (including,
where appropriate, to cause any such Person to acknowledge its agreement to be
bound by the agreement under this subsection 11.16), (iv) upon the request or
demand of any Governmental Authority having jurisdiction over such Lender or its
affiliates or to the extent required in response to any order of any court or
other Governmental Authority or as shall otherwise be required pursuant to any
Requirement of Law, PROVIDED that such Lender shall, unless prohibited by any
Requirement of Law, notify the Borrower of any disclosure pursuant to this
clause (iv) as far in advance as is reasonably practicable under such
circumstances, (v) which has been publicly disclosed other than in breach of
this Agreement, (vi) in connection with the exercise of any remedy hereunder or
under any Interest Rate Protection Agreement, (vii) in connection with periodic
regulatory examinations and reviews conducted by the National Association of
Insurance Commissioners or any Governmental Authority having jurisdiction over
such Lender or its affiliates (to the extent applicable), (viii) in connection
with any litigation to which such Lender (or, with respect to any Interest Rate
Protection Agreement, any affiliate of any Lender party thereto) may be a party,
subject to the proviso in clause (iv), and (ix) if, prior to such information
having been so provided or obtained, such information was already in the
Administrative Agent's or a Lender's possession on a nonconfidential basis
without a duty of confidentiality to the Borrower being violated.
11.17. EFFECT OF AGREEMENT. The Borrower, the Administrative Agent and the
Lenders hereto which are parties to the Existing Credit Agreement hereby agree
that (i) the Existing Credit Agreement is amended to provide for the facilities
set forth in Section 2 and Section 3 herein and (ii) that immediately following
the repayment of the Term Loans (as defined in the Existing Credit Agreement)
and the Revolving Credit Loans (as defined in the Existing Credit Agreement),
the Tranche A Term Loan Commitments, the Tranche B Term Loan Commitments, the
Tranche C Term Loan Commitments and the Revolving Credit Commitments (each as
defined in the Existing Credit Agreement) shall be terminated and the Existing
Credit Agreement shall be and hereby is amended and restated on the terms and
conditions set forth herein. This Agreement is intended to amend and restate the
Existing Credit Agreement and shall be construed and enforced to give effect to
such intention; PROVIDED that each of the parties hereto agrees that this
Agreement shall be effective and enforceable against each of them in accordance
with its terms whether or not construed as or constituting an amendment and
restatement of the Existing Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
RIVERWOOD INTERNATIONAL CORPORATION
By:_______________________________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent, Swing Line Lender,
Issuing Lender and Lender
By:_______________________________________________
Name:
Title:
BANKERS TRUST COMPANY, as Syndication
Agent and Lender
By:_______________________________________________
Name:
Title:
