AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT Dated as of April 3, 2007, Among BERRY PLASTICS GROUP, INC., BERRY PLASTICS HOLDING CORPORATION and CERTAIN OF ITS SUBSIDIARIES PARTY HERETO as Borrowers, THE LENDERS PARTY HERETO, BANK OF AMERICA, N.A.,...
Exhibit
10.1(a)
$400,000,000
AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT
Dated
as
of April 3,
2007,
Among
XXXXX
PLASTICS GROUP, INC.,
XXXXX
PLASTICS HOLDING CORPORATION
and
CERTAIN
OF ITS SUBSIDIARIES PARTY HERETO
as
Borrowers,
THE
LENDERS PARTY HERETO,
BANK
OF
AMERICA, N.A.,
as
Collateral Agent and Administrative Agent,
XXXXXXX
XXXXX CREDIT PARTNERS L.P.,
as
Syndication Agent,
CREDIT
SUISSE SECURITIES (USA) LLC
CITIGROUP
GLOBAL MARKETS INC.
DEUTSCHE
BANK SECURITIES INC.
X.X.
XXXXXX SECURITIES INC.
XXXXXX
BROTHERS INC.
as
Co-Documentation Agents
BANC
OF
AMERICA SECURITIES LLC
CITIGROUP
GLOBAL MARKETS INC.
CREDIT
SUISSE SECURITIES (USA) LLC
DEUTSCHE
BANK SECURITIES INC.
XXXXXXX
SACHS CREDIT PARTNERS L.P.
J.P.
XXXXXX SECURITIES INC.
XXXXXX
BROTHERS INC.
as
Joint
Bookrunners
_________________
BANC
OF
AMERICA SECURITIES LLC
and
XXXXXXX
XXXXX CREDIT PARTNERS L.P.
as
Joint
Lead Arrangers
_________________
TABLE
OF
CONTENTS
Page
ARTICLE
I
Definitions
SECTION
1.01.
|
Defined
Term
|
2 |
SECTION
1.02.
|
Terms
Generally
|
60 |
SECTION
1.03.
|
Effectuation
of Transactions
|
60 |
SECTION
1.04.
|
Exchange
Rates; Currency Equivalents
|
60 |
SECTION
1.05.
|
Senior
Debt
|
61 |
ARTICLE
II
The
Credits
SECTION
2.01.
|
Commitments
|
61 |
SECTION
2.02.
|
Loans
and Borrowings
|
61 |
SECTION
2.03.
|
Requests
for Borrowings
|
62 |
SECTION
2.04.
|
Swingline
Loans and Agent Advances
|
63 |
SECTION
2.05.
|
Letters
of Credit
|
66 |
SECTION
2.06.
|
Funding
of Borrowings
|
72 |
SECTION
2.07.
|
Interest
Elections
|
72 |
SECTION
2.08.
|
Termination
and Reduction of Commitments
|
73 |
SECTION
2.09.
|
Repayment
of Loans; Evidence of Debt
|
73 |
SECTION
2.10.
|
Repayment
of Revolving Loans
|
74 |
SECTION
2.11.
|
Prepayment
of Loans
|
76 |
SECTION
2.12.
|
Fees
|
76 |
SECTION
2.13.
|
Interest
|
77 |
SECTION
2.14.
|
Alternate
Rate of Interest
|
78 |
SECTION
2.15.
|
Increased
Costs
|
78 |
SECTION
2.16.
|
Break
Funding Payments
|
79 |
SECTION
2.17.
|
Taxes
|
80 |
SECTION
2.18.
|
Payments
Generally; Pro Rata Treatment; Sharing of Set-offs
|
82 |
SECTION
2.19.
|
Mitigation
Obligations; Replacement of Lenders
|
84 |
SECTION
2.20.
|
Illegality
|
85 |
SECTION
2.21.
|
Incremental
Commitments
|
85 |
ARTICLE
III
Representations
and Warranties
SECTION
3.01.
|
Organization;
Powers
|
86 |
SECTION
3.02.
|
Authorization
|
87 |
SECTION
3.03.
|
Enforceability
|
87 |
i
SECTION
3.04.
|
Governmental
Approvals
|
87 |
SECTION
3.05.
|
Financial
Statements
|
88 |
SECTION
3.06.
|
No
Material Adverse Effect
|
88 |
SECTION
3.07.
|
Title
to Properties; Possession Under Leases
|
88 |
SECTION
3.08.
|
Subsidiaries
|
89 |
SECTION
3.09.
|
Litigation;
Compliance with Laws
|
89 |
SECTION
3.10.
|
Federal
Reserve Regulations
|
89 |
SECTION
3.11.
|
Investment
Company Act
|
90 |
SECTION
3.12.
|
Use
of Proceeds
|
90 |
SECTION
3.13.
|
Tax
Returns
|
90 |
SECTION
3.14.
|
No
Material Misstatements
|
90 |
SECTION
3.15.
|
Employee
Benefit Plans
|
91 |
SECTION
3.16.
|
Environmental
Matters
|
91 |
SECTION
3.17.
|
Security
Documents
|
92 |
SECTION
3.18.
|
Location
of Real Property and Leased Premises
|
93 |
SECTION
3.19.
|
Solvency
|
93 |
SECTION
3.20.
|
Labor
Matters
|
94 |
SECTION
3.21.
|
Insurance
|
94 |
SECTION
3.22.
|
No
Default
|
94 |
SECTION
3.23.
|
Intellectual
Property; Licenses, Etc.
|
94 |
SECTION
3.24.
|
Senior
Debt
|
95 |
SECTION
3.25.
|
Common
Enterprise
|
95 |
ARTICLE
IV
Conditions
of Lending
SECTION
4.01.
|
All
Credit Events
|
95 |
SECTION
4.02.
|
Effectiveness
of Commitments
|
96 |
ARTICLE
V
Affirmative
Covenants
SECTION
5.01.
|
Existence;
Businesses and Properties
|
99 |
SECTION
5.02.
|
Insurance
|
100 |
SECTION
5.03.
|
Taxes
|
101 |
SECTION
5.04.
|
Financial
Statements, Reports, etc.
|
101 |
SECTION
5.05.
|
Litigation
and Other Notices
|
104 |
SECTION
5.06.
|
Compliance
with Laws
|
104 |
SECTION
5.07.
|
Maintaining
Records; Access to Properties and
Inspections
|
104 |
SECTION
5.08.
|
Use
of Proceeds
|
105 |
SECTION
5.09.
|
Compliance
with Environmental Laws
|
105 |
SECTION
5.10.
|
Further
Assurances; Additional Security
|
105 |
SECTION
5.12.
|
Appraisals
and Reports
|
107 |
SECTION
5.13.
|
Collateral
Reporting
|
108 |
SECTION
5.14.
|
Accounts
|
108 |
ii
SECTION
5.15.
|
Collection
of Accounts; Payments
|
108 |
SECTION
5.16.
|
Inventory;
Perpetual Inventory
|
111 |
ARTICLE
VI
Negative
Covenants
SECTION
6.01.
|
Indebtedness
|
112 |
SECTION
6.02.
|
Liens
|
115 |
SECTION
6.03.
|
Sale
and Lease-Back Transactions
|
120 |
SECTION
6.04.
|
Investments,
Loans and Advances
|
120 |
SECTION
6.05.
|
Mergers,
Consolidations, Sales of Assets and Acquisitions
|
124 |
SECTION
6.06.
|
Dividends
and Distributions
|
127 |
SECTION
6.07.
|
Transactions
with Affiliates
|
129 |
SECTION
6.08.
|
Business
of the Borrowers and the Subsidiaries
|
132 |
SECTION
6.09.
|
Limitation
on Modifications of Indebtedness; Modifications of Certificate
of
Incorporation, By-Laws and Certain Other Agreements; etc.
|
132 |
SECTION
6.10.
|
Fiscal
Year; Accounting
|
134 |
SECTION
6.11.
|
Availability
Triggering Event
|
134 |
SECTION
6.12.
|
Qualified
CFC Holding Companies
|
134 |
ARTICLE
VIA
Holdings
Negative Covenants
ARTICLE
VII
Events
of
Default
SECTION
7.01.
|
Events
of Default
|
135 |
SECTION
7.02.
|
Exclusion
of Immaterial Subsidiaries
|
138 |
SECTION
7.03.
|
Holdings’
Right to Cure
|
138 |
ARTICLE
VIII
The
Agents
SECTION
8.01.
|
Appointment
|
139 |
SECTION
8.02.
|
Delegation
of Duties
|
141 |
SECTION
8.03.
|
Exculpatory
Provisions
|
142 |
SECTION
8.04.
|
Reliance
by Administrative Agent
|
142 |
SECTION
8.05.
|
Notice
of Default
|
143 |
SECTION
8.06.
|
Non-Reliance
on Agents and Other Lenders
|
143 |
SECTION
8.07.
|
Indemnification
|
144 |
SECTION
8.08.
|
Agent
in Its Individual Capacity
|
144 |
SECTION
8.09.
|
Successor
Administrative Agent
|
145 |
iii
SECTION
8.10.
|
Agents
and Arrangers
|
145 |
SECTION
8.11.
|
[Reserved]
|
145 |
SECTION
8.12.
|
145 |
ARTICLE
IX
Miscellaneous
SECTION
9.01.
|
Notices;
Communications
|
146 |
SECTION
9.02.
|
Survival
of Agreement
|
147 |
SECTION
9.03.
|
Binding
Effect
|
148 |
SECTION
9.04.
|
Successors
and Assigns
|
148 |
SECTION
9.05.
|
Expenses;
Indemnity
|
152 |
SECTION
9.06.
|
Right
of Set-off
|
154 |
SECTION
9.07.
|
Applicable
Law
|
154 |
SECTION
9.08.
|
Waivers;
Amendment
|
154 |
SECTION
9.09.
|
Interest
Rate Limitation
|
156 |
SECTION
9.10.
|
Entire
Agreement
|
157 |
SECTION
9.11.
|
WAIVER
OF JURY TRIAL
|
157 |
SECTION
9.12.
|
Severability
|
157 |
SECTION
9.13.
|
Counterparts
|
157 |
SECTION
9.14.
|
Headings
|
157 |
SECTION
9.15.
|
Jurisdiction;
Consent to Service of Process
|
158 |
SECTION
9.16.
|
Confidentiality
|
158 |
SECTION
9.17.
|
Platform;
Borrower Materials
|
159 |
SECTION
9.18.
|
Release
of Liens and Guarantees
|
159 |
SECTION
9.19.
|
Judgment
Currency
|
160 |
SECTION
9.20.
|
USA
PATRIOT Act Notice
|
160 |
SECTION
9.21.
|
Joint
and Several Liability
|
160 |
SECTION
9.22.
|
Contribution
and Indemnification among the Borrowers
|
161 |
SECTION
9.23.
|
Agency
of Company for Each Other Borrower
|
162 |
SECTION
9.24.
|
Additional
Borrowers
|
162 |
SECTION
9.25.
|
Express
Waivers By Borrowers In Respect of Cross Guaranties and Cross
Collateralization
|
163 |
SECTION
9.26.
|
Intercreditor
Agreements and Collateral Agreement
|
164 |
iv
Exhibits
and Schedules
Exhibit
A
|
Form
of Assignment and Acceptance
|
Exhibit B
|
Form
of Solvency Certificate
|
Exhibit C-1
|
Form
of Borrowing Request
|
Exhibit C-2
|
Form
of Swingline Borrowing Request
|
Exhibit D
|
[Reserved]
|
Exhibit E
|
Form
of Collateral Agreement
|
Exhibit
F
|
Form
of Borrowing Base Certificate
|
Schedule 1.01(a)
|
Certain
U.S. Subsidiaries
|
Schedule
1.01(b)
|
Acceptable
Appraisers
|
Schedule 1.01(c)
|
Mortgaged
Properties
|
Schedule 1.01(d)
|
Immaterial
Subsidiaries
|
Schedule
1.01(e)
|
Past
Due Accounts
|
Schedule
1.01(f)
|
Existing
Bankers’ Acceptances
|
Schedule
1.01(g)
|
Existing
Letters of Credit
|
Schedule 1.01(i)
|
Unrestricted
Subsidiaries
|
Schedule 2.01 | Commitments |
Schedule 3.01
|
Organization
and Good Standing
|
Schedule 3.04
|
Governmental
Approvals
|
Schedule 3.07(b)
|
Possession
under Leases
|
Schedule 3.08(a)
|
Subsidiaries
|
Schedule 3.08(b)
|
Subscriptions
|
Schedule 3.13
|
Taxes
|
Schedule 3.16
|
Environmental
Matters
|
Schedule 3.21
|
Insurance
|
Schedule 3.23
|
Intellectual
Property
|
Schedule
4.02
|
Borrowing
Base Calculation on Closing Date
|
Schedule 4.02(d)
|
Post-Closing
Interest Deliveries
|
Schedule 6.01
|
Indebtedness
|
Schedule 6.02(a)
|
Liens
|
Schedule 6.04
|
Investments
|
Schedule
6.05
|
Mergers,
Consolidations, Sales of Assets and
Acquisitions
|
Schedule 6.07
|
Transactions
with Affiliates
|
Schedule 9.01
|
Notice
Information
|
v
This
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT is entered into as of April
3,
2007 (this “Agreement”),
among
XXXXX PLASTICS GROUP, INC., a Delaware corporation (“Holdings”),
COVALENCE SPECIALTY MATERIALS CORP., a Delaware corporation (“Covalence”),
which
on the Closing Date shall be merged with and into Xxxxx Plastics Holding
Corporation, a Delaware corporation (“Xxxxx”),
with
Xxxxx surviving such merger (the “Company”),
certain domestic Subsidiaries of the Company party hereto from time to time,
the
LENDERS party hereto from time to time, BANK OF AMERICA, N.A., as administrative
agent (in such capacity, the “Administrative
Agent”)
and
collateral agent for the Lenders, XXXXXXX XXXXX CREDIT PARTNERS L.P., as
syndication agent (in such capacity, the “Syndication
Agent”),
and
CITIGROUP GLOBAL MARKETS INC., CREDIT SUISSE SECURITIES (USA) LLC, DEUTSCHE
BANK
SECURITIES INC., X.X. XXXXXX SECURITIES INC., and XXXXXX BROTHERS INC. as
co-documentation agents (in such capacities, the “Documentation
Agents”).
WHEREAS,
this Agreement has been titled the “Amended and Restated Revolving Credit
Agreement” for convenience of reference only and is, and is intended to be, a
new revolving credit agreement.
WHEREAS,
Covalence Holdings, Covalence, the lenders and agents named therein, and Bank
of
America, N.A., as administrative agent for such lenders, are parties to that
certain Revolving Credit Agreement dated as of May 18, 2006 (“the “Existing
Credit Agreement”);
WHEREAS
Covalence Holdings, Covalence, the lenders and agents named therein, and Bank
of
America, N.A., as administrative agent for such lenders are parties to that
certain Amended and Restated Credit Agreement, dated as of May 18, 2006 (the
“Existing
Term Loan Agreement”);
WHEREAS,
on the Closing Date, Xxxxx and Covalence shall enter into a business combination
(the “Business
Combination”)
pursuant to which (i) immediately prior to the effectiveness of this Agreement,
Xxxxx Holdings shall merge with and into Covalence Holdings, and Covalence
Holdings shall be renamed Xxxxx Plastics Group, Inc. (ii) substantially
simultaneously with the effectiveness of this Agreement, Covalence Holdings
shall contribute all of the capital stock of Xxxxx to Covalence (the
“Contribution”),
and
(iii) immediately following the effectiveness of this Agreement, Covalence
shall
merge with and into Xxxxx, with Xxxxx as the surviving corporation, pursuant
to
an Agreement and Plan of Merger and Corporate Reorganization between Covalence
and Holdings and Xxxxx Holdings dated March 9, 2007 (the “Merger
Agreement”);
WHEREAS,
in connection with the Business Combination, the Borrowers (as defined below)
desire to obtain from the Lenders a revolving credit facility in an
aggregate
principal
amount at any time outstanding not in excess of $400 million (subject to
increases as permitted herein), the proceeds of which may be used (i) to
refinance the following (the “Refinancing”):
(x)
the “Revolving Loans” (as defined in the Xxxxx Credit Agreement); and (y) the
“Loans” (as defined in the Existing Credit Agreement), and (ii) for general
corporate purposes.
ARTICLE
I
Definitions
SECTION
1.01. Defined
Terms.
As used
in this Agreement, the following terms shall have the meanings specified
below:
“ABL
Fixed Charge Coverage Ratio”
means
the ratio of (a) EBITDA of the Company for the most recent period of four
consecutive fiscal quarters of the Company for which financial statements are
available minus the income taxes paid in cash by the Company and included in
the
determination of Consolidated Net Income during such period minus non-financed
Capital Expenditures of the Company and its Subsidiaries during such period
to
(b) the sum of (i) scheduled principal payment required to be made during such
period in respect of Indebtedness for borrowed money plus
(ii) the
Consolidated Interest Expense (excluding amortization of any original issue
discount, interest paid in kind or added to principal and other noncash
interest) of the Company and its Subsidiaries for such period plus
(iii)
Distributions pursuant to Sections 6.06(c) and (e) in each case to the extent
paid by the Company in cash.
For
fiscal periods ending prior to the first full fiscal quarter after the Closing
Date, the ratio shall be calculated on a Pro Forma Basis giving effect to the
Transactions.
“ABR”
shall
mean, for any day, a fluctuating rate per annum equal to the higher of (a)
the
Federal Funds Effective Rate plus 1/2 of 1% and (b) the rate of interest in
effect for such day as publicly announced from time to time by Bank of America
as its “prime rate.” The “prime rate” is a rate set by Bank of America based
upon various factors including Bank of America’s costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above or below such announced
rate. Any change in such rate announced by Bank of America shall take effect
at
the opening of business on the day specified in the public announcement of
such
change.
“ABR
Borrowing”
shall
mean a Borrowing comprised of ABR Loans.
“ABR
Loan”
shall
mean any ABR Revolving Loan, Swingline Loan or Agent Advance.
“ABR
Revolving Facility Borrowing”
shall
mean a Borrowing comprised of ABR Revolving Loans.
“ABR
Revolving Loan”
shall
mean any Revolving Loan bearing interest at a rate determined by reference
to
the ABR in accordance with the provisions of Article II.
“Acceptable
Appraiser”
means
(a) any person listed on Schedule
1.01(b),
or
(b) any other experienced and reputable appraiser reasonably acceptable to
the Company and the Administrative Agent.
“Acceptance
Credit”
shall
mean a commercial Letter of Credit in which the applicable Issuing Bank engages
with the beneficiary of such Letter of Credit to accept a time
draft.
“Acceptance
Documents”
shall
mean such general acceptance agreements, applications, certificates and other
documents as the applicable Issuing Bank may require in connection with the
creation of Bankers’ Acceptances.
“Accommodation
Payment”
shall
have the meaning assigned to such term in Section 9.22.
“Account”
means,
with respect to a person, any of such person’s now owned and hereafter acquired
or arising accounts, as defined in the UCC, including any rights to payment
for
the sale or lease of goods or rendition of services, whether or not they have
been earned by performance, and “Accounts”
means,
with respect to any such person, all of the foregoing.
“Account
Debtor”
means
each person obligated on an Account.
“Acquisition
Agreement”
shall
mean
the
Stock and Asset Purchase Agreement (as amended by that certain Closing Agreement
dated as of February 16, 2006) dated as of December 20, 2005, among Tyco Group
S.a.r.l., a Luxembourg company, Covalence and, for purposes of Section 11.15
thereof only, Tyco International Group S.A.
“Act”
shall
have the meaning assigned to such term in Section 9.20.
“Additional
Mortgage”
shall
have the meaning assigned to such term in Section 5.10(c).
“Adjusted
LIBO Rate”
shall
mean, with respect to any Eurocurrency Borrowing for any Interest Period, an
interest rate per annum equal to (a) the LIBO Rate in effect for such Interest
Period divided by (b) one minus the Statutory Reserves applicable to such
Eurocurrency Borrowing, if any.
“Administrative
Agent”
shall
have the meaning assigned to such term in the introductory paragraph of this
Agreement.
“Administrative
Agent Fees”
shall
have the meaning assigned to such term in Section 2.12(c).
“Administrative
Questionnaire”
shall
mean an Administrative Questionnaire in a form supplied by the Administrative
Agent.
“Affiliate”
shall
mean, when used with respect to a specified person, another person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the person specified. For purposes
of clause (h) of the definition of Eligible Accounts, the term “Affiliate”,
however, with respect to any Loan Party or the Equity Investors, shall exclude
any Apollo Operating Company.
“Agent
Advance Exposure”
shall
mean at any time the aggregate principal amount of all outstanding Agent
Advances at such time. The Agent Advance Exposure of any Revolving Lender at
any
time shall mean its Pro Rata Share of the aggregate Agent Advance Exposure
at
such time.
“Agent
Advances”
shall
have the meaning assigned to such term in Section 2.04(d).
“Agents”
shall
mean the Administrative Agent and the Collateral Agent.
“Agreement”
shall
have the meaning assigned to such term in the Introductory paragraph of this
Agreement.
“Agreement
Currency”
shall
have the meaning assigned to such term in Section 9.19.
“Allocable
Amount”
shall
have the meaning assigned to such term in Section 9.22.
“Alternate
Currency”
shall
mean, with respect to any Letter of Credit, Canadian Dollars or Euros and any
other currency other than Dollars as may be acceptable to the Administrative
Agent and the Issuing Bank with respect thereto in their sole discretion.
“Alternate
Currency Letter of Credit”
shall
mean any Letter of Credit denominated in an Alternate Currency.
“Apollo
Operating Company”
means
a
person engaged in the business of producing goods or providing services that
but
for the last sentence of the definition of Affiliate would be an Affiliate
of
the Equity Investors.
“Applicable
Margin”
shall
mean for any day prior to October 1, 2007, 1.25% per annum in the case of any
Eurocurrency Loan and 0.00% per annum in the case of any ABR Loan and on and
after October 1, 2007, the Applicable Margin will be determined pursuant to
the
Pricing Grid.
“Applicable
Period”
means
an Excess Cash Flow Period or an Excess Cash Flow Interim Period, as the case
may be.
“Approved
Fund”
shall
have the meaning assigned to such term in Section 9.04(b).
“Asset
Sale”
shall
mean any loss, damage, destruction or condemnation of, or any sale, transfer
or
other disposition (including any sale and leaseback of assets and any mortgage
or lease of real property) to any person of any asset or assets of the Company
or any Subsidiary.
“Assignee”
shall
have the meaning assigned to such term in Section 9.04(b).
“Assignment
and Acceptance”
shall
mean an assignment and acceptance entered into by a Lender and an Assignee,
and
accepted by the Administrative Agent and the Company (if required by such
assignment and acceptance), in the form of Exhibit A
or such
other form as shall be approved by the Administrative Agent.
“Availability”
shall
mean, at any time, (a) the Borrowing Base minus
(b) the
Revolving Facility Credit Exposure.
“Availability
Period”
shall
mean the period from and including the Closing Date to but excluding the earlier
of the Revolving Facility Maturity Date and the date of termination of the
Revolving Facility Commitments.
“Availability
Triggering Event”
shall
mean that (a) except for purposes of Sections 5.07, 5.12, 5.13 and 5.15, the
Availability is less than the Threshold Amount, or (b) for purposes of Section
5.07, 5.12, 5.13 and 5.15 only, the Availability is less than the Threshold
Amount for five consecutive Business Days. Once occurred, an Availability
Triggering Event shall be deemed to be continuing until such time as the
Availability is greater than the Threshold Amount for 10 consecutive
days.
“Available
Unused Commitment”
shall
mean, with respect to a Revolving Lender at any time, an amount equal to the
amount by which (a) the Revolving Facility Commitment of such Revolving Lender
at such time exceeds (b) the Revolving Facility Credit Exposure of such
Revolving Lender at such time minus such Revolving Lender’s Pro Rata Share of
the Swingline Exposure and the Agent Advance Exposure.
“Bank
of America”
means
Bank of America, N.A. and its successors.
“Bankers’
Acceptance” or “BA”
shall
mean a time draft, drawn by the beneficiary under an Acceptance Credit and
accepted by the applicable Issuing Bank upon presentation of documents by the
beneficiary of an Acceptance Credit pursuant to Section 2.05 hereof, in the
standard form for bankers’ acceptances of such Issuing Bank.
“Bankruptcy
Code”
means
Title 11 of the United States Code (11 U.S.C. § 101 et seq.).
“BBA
LIBOR”
shall
have the meaning assigned to such term in the definition of “LIBO Rate” in this
Section 1.01.
“Below
Threshold Asset Sale Proceeds”
shall
have the meaning assigned to such term in the definition of “Cumulative Credit”
in this Section 1.01.
“Xxxxx”
shall
have the meaning assigned to such term in the introductory paragraph of this
Agreement.
“Xxxxx
Credit Agreement”
shall
have the meaning assigned to such term in the recitals hereto.
“Xxxxx
Holdings”
shall
mean Xxxxx Plastics Group, Inc., which prior to the Closing Date was merged
with
and into Covalence Holdings.
“Xxxxx
Senior Subordinated Note Documents”
shall
mean the Xxxxx Senior Subordinated Notes and the Xxxxx Senior Subordinated
Notes
Indenture.
“Xxxxx
Senior Subordinated Notes”
shall
mean the 11% Senior Subordinated Notes due 2016, issued pursuant to the Xxxxx
Senior Subordinated Notes Indenture and any notes issued in exchange for, and
as
contemplated by, the Xxxxx Senior Subordinated Notes and the related
registration rights agreement with substantially identical terms as the Xxxxx
Senior Subordinated Notes.
“Xxxxx
Senior Subordinated Notes Indenture”
shall
mean the Indenture dated as of September 20, 2006 under which the Xxxxx Senior
Subordinated Notes were issued, among Xxxxx and certain of its subsidiaries
party thereto and the trustee named therein from time to time, as in effect
on
the Closing Date and as amended, restated, supplemented or otherwise modified
from time to time in accordance with the requirements thereof and of this
Agreement.
“Blocked
Account Agreement”
means
an agreement among one or more of the Loan Parties, the Collateral Agent, and
a
Clearing Bank, in form and substance reasonably satisfactory to the Collateral
Agent, concerning the collection of payments which represent the proceeds of
Accounts and other Collateral of a Loan Party.
“Board”
shall
mean the Board of Governors of the Federal Reserve System of the United States
of America.
“Board
of Directors”
means
as to any person, the board of directors or other governing body of such person,
or, if such person is owned or managed by a single entity, the board of
directors or other governing body of such person.
“Borrower”
means,
the Company, those certain subsidiaries of the Company party hereto, and any
other person who becomes a party to this Agreement as a “Borrower”
pursuant to the terms hereof, jointly, severally, and collectively, and
“Borrowers”
means
more than one or all of the foregoing persons, jointly, severally, and
collectively, as the context requires.
“Borrower
Materials”
shall
have the meaning assigned to such term in Section 9.17.
“Borrowing”
shall
mean all Revolving Loans of a single Type and made on a single date and, in
the
case of Eurocurrency Loans, as to which a single Interest Period is in effect.
Unless the context indicates otherwise, the term “Borrowing” shall also include
any Swingline Borrowing and any Agent Advance.
Amended
and Restated Revolving Credit Agreement
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“Borrowing
Base”
means,
at any time, an amount equal to the lesser of
(a) the
Revolving Facility Commitment, and
(b) the
result of:
(i)
the
sum of (A) eighty-five percent (85.0%) of the Net Amount of Eligible Accounts,
and
(B)
eighty-five percent (85.0%) of the Orderly Liquidation Value of Eligible
Inventory, minus
(ii)
all
Reserves, without duplication of any items that are otherwise addressed or
excluded through eligibility criteria, which the Administrative Agent deems
necessary in the exercise of its Reasonable Credit Judgment to maintain with
respect to any Loan Party, including Reserves for any amounts which the
Administrative Agent or any Lender may be obligated to pay in the future for
the
account of any Loan Party.
The
specified percentages set forth in this definition will not be reduced without
the consent of the Company. Any determination by the Administrative Agent in
respect of the Borrowing Base shall be based on the Administrative Agent’s
Reasonable Credit Judgment. The parties understand that the exclusionary
criteria in the definitions of Eligible Accounts and Eligible Inventory, any
Reserves that may be imposed as provided herein, and Net Amount of Eligible
Accounts and factors considered in the calculation of Orderly Liquidation Value
of Eligible Inventory have the effect of reducing the Borrowing Base, and,
accordingly, whether or not any provisions hereof so state, all of the foregoing
shall be determined without duplication so as not to result in multiple
reductions in the Borrowing Base for the same facts or
circumstances.
“Borrowing
Base Certificate”
means
a
certificate by a Responsible Officer of the Company, substantially in the form
of Exhibit
F
(or
another form reasonably acceptable to the Administrative Agent, including,
on
the Closing Date only, Schedule
4.02)
setting
forth the calculation of the Borrowing Base, including a calculation of each
component thereof (including, to the extent the Company has received notice
of
any such Reserve from the Administrative Agent, any of the Reserves included
in
such calculation pursuant to clause (b)(ii) of the definition of the Borrowing
Base), all in such detail as shall be reasonably satisfactory to the
Administrative Agent.
“Borrowing
Minimum”
shall
mean $5 million, except in the case of Swingline Loans, $1 million.
“Borrowing
Multiple”
shall
mean $1 million, except in the case of Swingline Loans, $500,000.
“Borrowing
Request”
shall
mean a request by a Borrower in accordance with the terms of Section 2.03
and substantially in the form of Exhibit C-1.
“Budget”
shall
have the meaning assigned to such term in Section 5.04(e).
Amended
and Restated Revolving Credit Agreement
-7-
“Business
Day”
shall
mean any day that is not a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to remain
closed; provided,
that
when used in connection with a Eurocurrency Loan, the term “Business Day” shall
also exclude any day on which banks are not open for dealings in deposits in
the
applicable currency in the London interbank market.
“Business
Combination”
shall
have the meaning assigned to such term in the Recitals hereto.
“Capital
Expenditures”
shall
mean, for any person in respect of any period, the aggregate of all expenditures
incurred by such person during such period that, in accordance with GAAP, are
or
should be included in “additions to property, plant or equipment” or similar
items reflected in the statement of cash flows of such person, provided,
however,
that
Capital Expenditures for the Company and the Subsidiaries shall not
include:
(a) expenditures
to the extent they are made with proceeds of the issuance of Equity Interests
of
Holdings after the Closing Date or funds that would have constituted any Net
Proceeds under clause (a) of the definition of the term “Net Proceeds” (but
for the application of the first proviso to such clause (a)),
(b) expenditures
with proceeds of insurance settlements, condemnation awards and other
settlements in respect of lost, destroyed, damaged or condemned assets,
equipment or other property to the extent such expenditures are made to replace
or repair such lost, destroyed, damaged or condemned assets, equipment or other
property or otherwise to acquire, maintain, develop, construct, improve, upgrade
or repair assets or properties useful in the business of the Company and the
Subsidiaries within 15 months of receipt of such proceeds (or, if not made
within such period of 15 months, are committed to be made during such
period),
(c) interest
capitalized during such period,
(d) expenditures
that are accounted for as capital expenditures of such person and that actually
are paid for by a third party (excluding Holdings, the Company or any Subsidiary
thereof) and for which neither Holdings, the Company nor any Subsidiary has
provided or is required to provide or incur, directly or indirectly, any
consideration or obligation to such third party or any other person (whether
before, during or after such period),
(e) the
book
value of any asset owned by such person prior to or during such period to the
extent that such book value is included as a capital expenditure during such
period as a result of such person reusing or beginning to reuse such asset
during such period without a corresponding expenditure actually having been
made
in such period; provided,
that
(i) any expenditure necessary in order to permit such asset to be reused shall
be included as a Capital Expenditure during the period that such expenditure
actually is made and (ii) such book value shall have been included in Capital
Expenditures when such asset was originally acquired,
Amended
and Restated Revolving Credit Agreement
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(f) the
purchase price of equipment purchased during such period to the extent the
consideration therefor consists of any combination of (i) used or surplus
equipment traded in at the time of such purchase and (ii) the proceeds of a
concurrent sale of used or surplus equipment, in each case, in the ordinary
course of business,
(g) Investments
in respect of a Permitted Business Acquisition,
(h) the
Business Combination, or
(i) the
purchase of property, plant or equipment made within 15 months of the sale
of
any asset to the extent purchased with the proceeds of such sale (or, if not
made within such period of 15 months, to the extent committed to be made during
such period).
“Capital
Lease Obligations”
of
any
person shall mean the obligations of such person to pay rent or other amounts
under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required
to
be classified and accounted for as capital leases on a balance sheet of such
person under GAAP and, for purposes hereof, the amount of such obligations
at
any time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
“Cash
Interest Expense”
shall
mean, with respect to the Company and the Subsidiaries on a consolidated basis
for any period, Interest Expense for such period, less the sum of, without
duplication, (a) pay in kind Interest Expense or other noncash Interest Expense
(including as a result of the effects of purchase accounting), (b) to the extent
included in Interest Expense, the amortization of any financing fees paid by,
or
on behalf of, the Company or any Subsidiary, including such fees paid in
connection with the Transactions, (c) the amortization of debt discounts, if
any, or fees in respect of Swap Agreements and (d) cash interest income of
Company and its Subsidiaries for such period; provided,
that
Cash Interest Expense shall exclude any one time financing fees, including
those
paid in connection with the Transactions, or upon entering into any amendment
of
this Agreement.
For
fiscal periods ending prior to the first full fiscal quarter after the Closing
Date, Cash Interest Expense shall be calculated on a Pro Forma Basis giving
effect to the Transactions.
“CD”
and
“Canadian
Dollars”
each
shall mean the lawful currency of Canada.
A
“Change
in Control”
shall
be deemed to occur if:
(a) at
any
time, (i) Holdings shall fail to own, directly or indirectly, beneficially
and
of record, 100% of the issued and outstanding Equity Interests of the Company,
(ii) a majority of the seats (other than vacant seats) on the Board of Directors
of Holdings shall at any time be occupied by persons who were neither (A)
nominated by the board of directors of Holdings or a Permitted Holder, (B)
appointed by directors so nominated nor (C) appointed by a Permitted Holder
or
(iii) a “change of control” (or similar event) shall occur under the Second Lien
Notes Indenture, either of the Senior Subordinated Notes Indentures, any
Material Indebtedness or any Permitted Refinancing
Amended
and Restated Revolving Credit Agreement
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Indebtedness
in respect of any of the foregoing or any Disqualified Stock (to the extent
the
aggregate amount of the applicable Disqualified Stock exceeds
$35 million);
(b) at
any
time prior to a Qualified IPO, any combination of Permitted Holders shall fail
to own beneficially (within the meaning of Rule 13d-5 of the Exchange Act as
in
effect on the Closing Date), directly or indirectly, in the aggregate Equity
Interests representing at least a majority of the aggregate ordinary voting
power represented by the issued and outstanding Equity Interests of Holdings;
or
(c) at
any
time after a Qualified IPO, any person or “group” (within the meaning of
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934 as in
effect on the Closing Date), other than any combination of the Permitted Holders
or any “group” including any Permitted Holders, shall have acquired beneficial
ownership of 35% or more on a fully diluted basis of the voting interest in
Holdings’ Equity Interests and the Permitted Holders shall own, directly or
indirectly, less than such person or “group” on a fully diluted basis of the
voting interest in Holdings’ Equity Interests.
“Change
in Law”
shall
mean (a) the adoption of any law, rule or regulation after the Closing Date,
(b)
any change in law, rule or regulation or in the interpretation or application
thereof by any Governmental Authority after the Closing Date or (c) compliance
by any Lender or Issuing Bank (or, for purposes of Section 2.15(b), by any
Lending Office of such Lender or by such Lender’s or Issuing Bank’s holding
company, if any) with any written request, guideline or directive (whether
or
not having the force of law) of any Governmental Authority made or issued after
the Closing Date.
“Charges”
shall
have the meaning assigned to such term in Section 9.09.
“Clearing
Bank”
means
either Bank of America or any other banking institution with whom a Payment
Account has been established pursuant to a Blocked Account
Agreement.
“Closing
Date”
shall
mean April 3, 2007.
“Code”
shall
mean the Internal Revenue Code of 1986, as amended from time to time and the
regulations promulgated and rulings issued thereunder.
“Collateral”
shall
mean all the “Collateral” as defined in any Security Document and shall also
include the Mortgaged Properties and all other property that is subject to
any
Lien in favor of the Collateral Agent or any Subagent for the benefit of the
Lenders pursuant to any Security Documents.
“Collateral
Access Agreement”
shall
mean a landlord waiver, bailee letter or similar acknowledgment, in form and
substance reasonably satisfactory to the Collateral Agent and containing such
lien waivers, subordination provisions and other agreements of any lessor,
landlord, warehouseman or processor in possession of Inventory, in each case
reasonably required by the Collateral Agent to preserve, protect and maintain
the security interest (and the priority of the security interest) of the
Collateral Agent in such Inventory and executed pursuant to the requirements
set
forth in clause (j) of the definition of “Eligible Inventory”.
Amended
and Restated Revolving Credit Agreement
-10-
“Collateral
Agent”
means
the party acting as collateral agent for the Secured Parties under the Security
Documents. On the Closing Date, the Collateral Agent is the same person as
the
Administrative Agent. Unless the context otherwise requires, the term
“Administrative Agent” as used herein shall, unless the context otherwise
requires, include the Collateral Agent, notwithstanding various specific
references to the Collateral Agent herein.
“Collateral
Agent’s Liens”
means
the Liens in the Collateral granted to the Collateral Agent, for the benefit
of
the Secured Parties, pursuant to the Collateral Agreement and the other Loan
Documents.
“Collateral
Agreement”
shall
mean the Second Amended and Restated First Lien Guarantee and Collateral
Agreement, dated as of the date hereof, as amended, supplemented or otherwise
modified from time to time, in the form of Exhibit E,
among
Holdings, the Company, each Subsidiary Loan Party, the Collateral Agent and
Credit Suisse as collateral agent.
“Collateral
and Guarantee Requirement”
shall
mean the requirement that:
(a) on
the
Closing Date, the Collateral Agent shall have received (i) from Holdings, the
Company and each Subsidiary Loan Party, a counterpart of the Collateral
Agreement duly executed and delivered on behalf of such person and (ii) an
Acknowledgment and Consent in the form attached to the Collateral Agreement,
executed and delivered by each issuer of Pledged Collateral (as defined in
the
Collateral Agreement), if any, that is not a Loan Party;
(b) on
or
before the Closing Date, (i) the Collateral Agent shall have received (A) a
pledge of all the issued and outstanding Equity Interests of (x) the Company
and
(y) each Domestic Subsidiary (other than Subsidiaries listed on Schedule 1.01(a))
owned
on the Closing Date directly by or on behalf of the Company or any Subsidiary
Loan Party and (B) a pledge of 65% of the outstanding Equity Interests of (1)
each “first tier” Foreign Subsidiary directly owned by any Loan Party (except
for NIM Holdings Limited, Xxxxx Plastics Asia Pte. Ltd., Ociesse s.r.l., Xxxxx
Plastics Acquisition Corporation II, and Xxxxx Plastics Acquisition Corporation
XIV, LLC), and (2) each “first tier” Qualified CFC Holding Company directly
owned by any Loan Party and (ii) a collateral agent under the Collateral
Agreement, shall have received all certificates or other instruments (if any)
representing such Equity Interests, together with stock powers or other
instruments of transfer with respect thereto endorsed in blank;
(c) (i)
all
Indebtedness of the Company and each Subsidiary having, in the case of each
instance of Indebtedness, an aggregate principal amount in excess of $5 million
(other than (A) intercompany current liabilities incurred in the ordinary course
of business in connection with the cash management operations of Holdings and
its Subsidiaries or (B) to the extent that a pledge of such promissory note
or
instrument would violate applicable law) that is owing to any Loan Party shall
be evidenced by a promissory note or an instrument and shall have been pledged
pursuant to the Collateral Agreement (or other applicable Security Document
as
reasonably required by the Administrative Agent) (which pledge, in the case
of
any intercompany note evidencing debt owed by a Foreign Subsidiary to a Loan
Party, shall be limited to 65% of the amount
Amended
and Restated Revolving Credit Agreement
-11-
outstanding
thereunder), and (ii) Credit Suisse, as a collateral agent under the Collateral
Agreement shall have received all such promissory notes or instruments, together
with note powers or other instruments of transfer with respect thereto endorsed
in blank;
(d) in
the
case of any person that becomes a Subsidiary Loan Party after the Closing Date,
the Collateral Agent shall have received a supplement to each of the Collateral
Agreement, the Intercreditor Agreement and the Senior Lender Intercreditor
Agreement, in the form specified therein, duly executed and delivered on behalf
of such Subsidiary Loan Party;
(e) in
the
case of any person that becomes a “first tier” Foreign Subsidiary directly owned
by the Company or a Subsidiary Loan Party after the Closing Date, the Collateral
Agent shall have received, as promptly as practicable following a request by
the
Collateral Agent, a Foreign Pledge Agreement, duly executed and delivered on
behalf of such Foreign Subsidiary and the direct parent company of such Foreign
Subsidiary;
(f) after
the
Closing Date, (i) all the outstanding Equity Interests of (A) any person that
becomes a Subsidiary Loan Party after the Closing Date and (B) subject to
Section 5.10(g), all the Equity Interests that are acquired by a Loan Party
after the Closing Date, shall have been pledged pursuant to the Collateral
Agreement; provided,
that in
no event shall more than 65% of the issued and outstanding Equity Interests
of
any “first tier” Foreign Subsidiary or any “first tier” Qualified CFC Holding
Company directly owned by such Loan Party be pledged to secure Obligations,
and
in no event shall any of the issued and outstanding Equity Interests of any
Foreign Subsidiary that is not a “first tier” Foreign Subsidiary of a Loan Party
or any Qualified CFC Holding Company that is not a “first tier” Subsidiary of a
Loan Party be pledged to secure Obligations, and (ii) a collateral agent under
the Collateral Agreement shall have received all certificates or other
instruments (if any) representing such Equity Interests, together with stock
powers or other instruments of transfer with respect thereto endorsed in
blank;
(g) except
as
otherwise contemplated by any Security Document, all documents and instruments,
including Uniform Commercial Code financing statements, required by law or
reasonably requested by the Collateral Agent to be filed, registered or recorded
to create the Liens intended to be created by the Security Documents (in each
case, including any supplements thereto) and perfect such Liens to the extent
required by, and with the priority required by, the Security Documents, shall
have been filed, registered or recorded or delivered to the Collateral Agent
for
filing, registration or the recording concurrently with, or promptly following,
the execution and delivery of each such Security Document;
(h) within
90
days (or such longer period as the Administrative Agent may determine) after
the
Closing Date, the Collateral Agent shall have received (i) counterparts of
each
Mortgage to be entered into with respect to each Mortgaged Property set forth
on
Schedule 1.01(c)
duly
executed and delivered by the record owner of such Mortgaged Property and
suitable for recording or filing and (ii) such other documents including, but
not limited to, any consents, agreements and confirmations of
Amended
and Restated Revolving Credit Agreement
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third
parties, as the Collateral Agent may reasonably request with respect to any
such
Mortgage or Mortgaged Property;
(i) within
90
days (or such longer period as the Administrative Agent may determine) after
the
Closing Date, the Collateral Agent shall have received, except as otherwise
set
forth in clause (m) below, a policy or policies or marked-up unconditional
binder of title insurance or foreign equivalent thereof, as applicable, paid
for
by the Borrowers, issued by a nationally recognized title insurance company
insuring the Lien of each Mortgage to be entered into on or after the Closing
Date as a valid first Lien on the Mortgaged Property described therein, free
of
any other Liens except as permitted by Section 6.02 and Liens arising by
operation of law, together with such customary endorsements (including zoning
endorsements where reasonably appropriate and available), coinsurance and
reinsurance as the Collateral Agent may reasonably request, and with respect
to
any such property located in a state in which a zoning endorsement is not
available, a zoning compliance letter from the applicable municipality in a
form
reasonably acceptable to the Collateral Agent;
(j) at
or
prior to delivery of any Mortgages, evidence of the insurance required by the
terms of the Mortgages;
(k) except
as
otherwise contemplated by any Security Document, each Loan Party shall have
obtained all consents and approvals required to be obtained by it in connection
with (i) the execution and delivery of all Security Documents (or supplements
thereto) to which it is a party and the granting by it of the Liens thereunder
and (ii) the performance of its obligations thereunder; and
(l) after
the
Closing Date, the Administrative Agent shall have received (i) such other
Security Documents as may be required to be delivered pursuant to Section 5.10,
and (ii) upon reasonable request by the Administrative Agent, evidence of
compliance with any other requirements of Section 5.10.
“Collateral
Audit”
shall
have the meaning assigned to such term in Section 5.07.
“Commitment
Fee”
shall
have the meaning assigned to such term in Section 2.12(a).
“Commitments”
shall
mean (a) with respect to any Lender, such Lender’s Revolving Facility Commitment
(including any Incremental Revolving Facility Commitment), and (b) with respect
to any Swingline Lender, its Swingline Commitment.
“Company”
shall
have the meaning assigned to such term in the Recitals hereto.
“Conduit
Lender”
shall
mean any special purpose corporation organized and administered by any Lender
for the purpose of making Loans otherwise required to be made by such Lender
and
designated by such Lender in a written instrument;
provided,
that
the designation by any Lender of a Conduit Lender shall not relieve the
designating Lender of any of its obligations to fund a Loan under this Agreement
if, for any reason, its Conduit Lender fails to fund any such Loan, and the
designating Lender (and not the Conduit Lender) shall have the sole
Amended
and Restated Revolving Credit Agreement
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right
and
responsibility to deliver all consents and waivers required or requested under
this Agreement with respect to its Conduit Lender;
provided,
further,
that no
Conduit Lender shall (a) be entitled to receive any greater amount pursuant
to
Section 2.15, 2.16, 2.17 or 9.05 than the designating Lender would have
been entitled to receive in respect of the extensions of credit made by such
Conduit Lender or (b) be deemed to have any Commitment.
“Consolidated
Debt”
at
any
date shall mean the sum of (without duplication) all Indebtedness consisting
of
Capital Lease Obligations, Indebtedness for borrowed money (other than letters
of credit to the extent undrawn but including all Bankers’ Acceptances issued
under Acceptance Credits), Disqualified Stock and Indebtedness in respect of
the
deferred purchase price of property or services of the Company and the
Subsidiaries determined on a consolidated basis on such date in accordance
with
GAAP.
“Consolidated
Interest Expense”
means,
with respect to any person for any period, the sum, without duplication,
of:
(i) consolidated
interest expense of such person for such period, to the extent such expense
was
deducted in computing Consolidated Net Income (including amortization of
original issue discount, the interest component of Capital Lease Obligations,
and net payments and receipts (if any) pursuant to interest rate Hedging
Obligations and excluding amortization of deferred financing fees and expensing
of any bridge or other financing fees);
(ii) consolidated
capitalized interest of such person for such period, whether paid or accrued;
and
(iii) less
interest income for such period.
“Consolidated
Net Income”
shall
mean, with respect to any person for any period, the aggregate of the Net Income
of such person and its subsidiaries for such period, on a consolidated basis;
provided,
however,
that,
without duplication,
(i)any
net
after-tax extraordinary, nonrecurring or unusual gains or losses or income
or
expense or charge (less all fees and expenses relating thereto) including,
without limitation, any severance, relocation or other restructuring expenses,
any expenses relating to any reconstruction, recommissioning or reconfiguration
of fixed assets for alternative uses and fees, expenses or charges relating
to
new product lines, plant shutdown costs, acquisition integration costs, and
fees, expenses or charges related to any offering of Equity Interests of
Holdings, any Investment, acquisition or Indebtedness permitted to be incurred
hereunder (in each case, whether or not successful), including any such fees,
expenses, charges or change in control payments related to the Transactions
(including any transition-related expenses incurred before, on or after the
Original Agreement Date), in each case, shall be excluded,
(ii)any
net
after-tax income or loss from discontinued operations and any net after-tax
gain
or loss from disposed, abandoned, transferred, closed or discontinued operations
shall be excluded,
Amended
and Restated Revolving Credit Agreement
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(iii)any
net
after-tax gain or loss (less all fees and expenses or charges relating thereto)
attributable to business dispositions or asset dispositions other than in the
ordinary course of business (as determined in good faith by the Board of
Directors of the Company) shall be excluded,
(iv)any
net
after-tax income or loss (less all fees and expenses or charges relating
thereto) attributable to the early extinguishment of indebtedness shall be
excluded,
(v)(A)
the
Net Income for such period of any person that is not a subsidiary of such
person, or is an Unrestricted Subsidiary, or that is accounted for by the equity
method of accounting, shall be included only to the extent of the amount of
dividends or distributions or other payments paid in cash (or to the extent
converted into cash) to the referent person or a subsidiary thereof in respect
of such period and (B) the Net Income for such period shall include any ordinary
course dividend distribution or other payment in cash received from any person
in excess of the amounts included in clause (A),
(vi)Consolidated
Net Income for such period shall not include the cumulative effect of a change
in accounting principles during such period,
(vii)any
increase in amortization or depreciation or any one-time non-cash charges
resulting from purchase accounting (or similar accounting, in the case of the
Transactions) in connection with the Transactions or any acquisition that is
consummated after the Original Agreement Date shall be excluded,
(viii)any
non-cash impairment charges or asset write-off resulting from the application
of
GAAP, and the amortization of intangibles arising pursuant to GAAP, shall be
excluded,
(ix)any
non-cash expenses realized or resulting from stock option plans, employee
benefit plans or post-employment benefit plans, grants of stock appreciation
or
similar rights, stock options, restricted stock grants or other rights to
officers, directors and employees of such person or any of its subsidiaries
shall be excluded,
(x)accruals
and reserves that are established within twelve months after the Closing Date
and that are so required to be established in accordance with GAAP shall be
excluded,
(xi)any
expenses realized in respect of the obligations under Sections 2.9 or 5.4 of
the
Acquisition Agreement, shall in each case be excluded,
(xii)
non-cash
gains, losses, income and expenses resulting from fair value accounting required
by Statement of Financial Accounting Standards No. 133 shall be excluded,
and
(xiii)
non-cash
charges for deferred tax asset valuation allowances shall be excluded.
Amended
and Restated Revolving Credit Agreement
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“Consolidated
Total Assets”
shall
mean, as of any date, the total assets of the Company and the consolidated
Subsidiaries, determined in accordance with GAAP, as set forth on the
consolidated balance sheet of the Company as of such date.
“Contribution”
shall
have the meaning assigned to such term in the recitals hereto.
“Control”
shall
mean the possession, directly or indirectly, of the power to direct or cause
the
direction of the management or policies of a person, whether through the
ownership of voting securities, by contract or otherwise, and “Controlling”
and
“Controlled”
shall
have meanings correlative thereto.
“Covalence”
shall
have the meaning assigned to such term in the introductory paragraph of this
Agreement.
“Covalence
Holdings”
shall
mean Covalence Specialty Materials Holding Corp., which immediately prior to
the
Closing Date was merged with Xxxxx Holdings, with Covalence Specialty Materials
Holding Corp. surviving and being renamed Xxxxx Plastics Group,
Inc.
“Covalence
Senior Subordinated Note Documents”
shall
mean the Covalence Senior Subordinated Notes and the Covalence Senior
Subordinated Notes Indenture.
“Covalence
Senior Subordinated Notes”
shall
mean the Company’s 10¼% Senior Subordinated Notes due 2016, issued pursuant to
the Covalence Senior Subordinated Notes Indenture and any notes issued by the
Company in exchange for, and as contemplated by, the Covalence Senior
Subordinated Notes and the related registration rights agreement with
substantially identical terms as the Covalence Senior Subordinated
Notes.
“Covalence
Senior Subordinated Notes Indenture”
shall
mean the Indenture dated as of February 16, 2006 among the Company and certain
of the Subsidiaries party thereto and the trustee named therein from time to
time, as in effect on the Closing Date and as amended, restated, supplemented
or
otherwise modified from time to time in accordance with the requirements thereof
and of this Agreement.
“Credit
Event”
shall
have the meaning assigned to such term in Article IV.
“Credit
Suisse”
shall
mean Credit Suisse, Cayman Islands Branch.
“Cumulative
Credit”
shall
mean, at any date, an amount, not less than zero in the aggregate, determined
on
a cumulative basis equal to, without duplication:
(a)
$100.0 million, plus:
(b)
the
Cumulative Retained Excess Cash Flow Amount at such time, plus
(c)
the
aggregate amount of proceeds received after the Original Agreement Date and
prior to such time that would have constituted Net Proceeds pursuant to clause
(a) of the definition thereof except for the operation of clause (A), (B) or
(C)
of the second proviso thereof (the “Below
Threshold Asset Sale Proceeds”),
plus
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and Restated Revolving Credit Agreement
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(d)
the
cumulative amount of proceeds (including cash and the fair market value of
property other than cash) from the sale of Equity Interests of Holdings or
any
Parent Entity after the Original Agreement Date and on or prior to such time
(including upon exercise of warrants or options) which proceeds have been
contributed as common equity to the capital of the Company and common Equity
Interests of the Company issued upon conversion of Indebtedness of the Company
or any Subsidiary owed to a person other than the Company or a Subsidiary not
previously applied for a purpose other than use in the Cumulative Credit;
provided,
that
this clause (d) shall exclude Permitted Cure Securities and the proceeds
thereof, sales of Equity Interests financed as contemplated by Section 6.04(e)
and any amounts used to finance the payments or distributions in respect of
any
Junior Financing pursuant to Section 6.09(b), plus
(e)
100%
of the aggregate amount of contributions to the common capital of the Company
received in cash (and the fair market value of property other than cash) after
the Original Agreement Date (subject to the same exclusions as are applicable
to
clause (d) above); plus
(f)
the
principal amount of any Indebtedness (including the liquidation preference
or
maximum fixed repurchase price, as the case may be, of any Disqualified Stock)
of the Company or any Subsidiary thereof issued after the Original Agreement
Date (other than Indebtedness issued to a Subsidiary), which has been converted
into or exchanged for Equity Interests (other than Disqualified Stock) in
Holdings or any Parent Entity, plus
(g)
100%
of the aggregate amount received by the Company or any Subsidiary in cash (and
the fair market value of property other than cash received by the Company or
any
Subsidiary) after the Original Agreement Date from:
(A) the
sale
(other than to the Company or any Subsidiary) of the Equity Interests of an
Unrestricted Subsidiary, or
(B) any
dividend or other distribution by an Unrestricted Subsidiary, plus
(h)
in
the event any Unrestricted Subsidiary has been redesignated as a Subsidiary
or
has been merged, consolidated or amalgamated with or into, or transfers or
conveys its assets to, or is liquidated into, Holdings, the Company or any
Subsidiary, the fair market value of the Investments of Holdings, the Company
or
any Subsidiary in such Unrestricted Subsidiary at the time of such Subsidiary
Redesignation, combination or transfer (or of the assets transferred or
conveyed, as applicable), plus
(i)
an
amount equal to any returns (including dividends, interest, distributions,
returns of principal, profits on sale, repayments, income and similar amounts)
actually received by the Company or any Subsidiary in respect of any Investments
made pursuant to Section 6.04(j) (or the corresponding provision of the senior
secured bank credit facility then applicable to such entity) after the Original
Agreement Date, minus
(j)
any
amounts thereof used to make Investments pursuant to Section 6.04(b)(y) (or
the
corresponding provision of the senior secured bank credit facility then
applicable to such entity) after the Original Agreement Date prior to such
time,
minus
Amended
and Restated Revolving Credit Agreement
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(k)
any
amounts thereof used to make Investments pursuant to Section 6.04(j)(ii) (or
the
corresponding provision of the senior secured bank credit facility then
applicable to such entity) after the Original Agreement Date prior to such
time,
minus
(l)
the
cumulative amount of dividends paid and distributions made pursuant to Section
6.06(e) (or the corresponding provision of the senior secured bank credit
facility then applicable to such entity) after the Original Agreement Date
prior
to such time, minus
(m)
payments or distributions in respect of Junior Financings pursuant to Section
6.09(b)(i) (or the corresponding provision of the senior secured bank credit
facility then applicable to such entity) (other than payments made with proceeds
from the issuance of Equity Interests that were excluded from the calculation
of
the Cumulative Credit pursuant to clause (d) above) after the Original Agreement
Date;
provided,
however,
for
purposes of Section 6.06(e), the calculation of the Cumulative Credit shall
not
include any Below Threshold Asset Sale Proceeds except to the extent they are
used as contemplated in clauses (j) and (k) above.
“Cumulative
Retained Excess Cash Flow Amount”
shall
mean, at any date, an amount, not less than zero in the aggregate, determined
on
a cumulative basis equal to:
(a) the
aggregate cumulative sum of the Retained Percentage of Excess Cash Flow for
all
Excess Cash Flow Periods ending after the Original Agreement Date and prior
to
such date, plus
(b) for
each
Excess Cash Flow Interim Period ended prior to such date but as to which the
corresponding Excess Cash Flow Period has not ended, an amount equal to the
Retained Percentage of Excess Cash Flow for such Excess Cash Flow Interim
Period, minus
(c) the
cumulative amount of all Retained Excess Cash Flow Overfundings as of such
date.
“Cure
Amount”
shall
have the meaning assigned to such term in Section 7.03(a).
“Cure
Right”
shall
have the meaning assigned to such term in Section 7.03(a).
“Current
Assets”
shall
mean, with respect to the Company and the Subsidiaries on a consolidated basis
at any date of determination, the sum of all assets (other than cash and
Permitted Investments or other cash equivalents and amounts receivable under
Sections 2.9 and 5.4 of the Acquisition Agreement) that would, in accordance
with GAAP, be classified on a consolidated balance sheet of the Company and
the
Subsidiaries as current assets at such date of determination, other than amounts
related to current or deferred Taxes based on income or profits.
“Current
Liabilities”
shall
mean, with respect to the Company and the Subsidiaries on a consolidated basis
at any date of determination, all liabilities that would, in accordance with
GAAP, be classified on a consolidated balance sheet of the Company and
the
Amended
and Restated Revolving Credit Agreement
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Subsidiaries
as current liabilities at such date of determination, other than (a) the current
portion of any Indebtedness, (b) accruals of Interest Expense (excluding
Interest Expense that is due and unpaid), (c) accruals for current or deferred
Taxes based on income or profits, (d) accruals, if any, of transaction costs
resulting from the Transactions and obligations under Sections 2.9 and 5.4
of
the Acquisition Agreement, (e) accruals of any costs or expenses related to
(i)
severance or termination of employees prior to the Original Agreement Date
or
(ii) bonuses, pension and other post-retirement benefit obligations, and (f)
accruals for add-backs to EBITDA included in clauses (a)(iv) through
(a)(vi) of the definition of such term.
“Debt
Service”
shall
mean, with respect to the Company and the Subsidiaries on a consolidated basis
for any period, Cash Interest Expense for such period plus scheduled principal
amortization of Consolidated Debt for such period.
“Default”
shall
mean any event or condition that upon notice, lapse of time or both would
constitute an Event of Default.
“Defaulting
Lender”
shall
mean any Lender with respect to which a Lender Default is in
effect.
“Designated
Non-Cash Consideration”
mean
the fair market value of non-cash consideration received by the Company or
one
of its Subsidiaries in connection with an Asset Sale that is so designated
as
Designated Non-Cash Consideration pursuant to a certificate of a Responsible
Officer, setting forth the basis of such valuation, less the amount of cash
equivalents received in connection with a subsequent sale of such Designated
Non-Cash Consideration.
“Disqualified
Stock”
shall
mean, with respect to any person, any Equity Interests of such person that,
by
its terms (or by the terms of any security or other Equity Interests into which
it is convertible or for which it is redeemable or exchangeable), or upon the
happening of any event or condition (a) matures or is mandatorily redeemable
(other than solely for Qualified Equity Interests), pursuant to a sinking fund
obligation or otherwise (except as a result of a change of control or asset
sale
so long as any rights of the holders thereof upon the occurrence of a change
of
control or asset sale event shall be subject to the prior repayment in full
of
the Loans and all other Obligations that are accrued and payable and the
termination of the Commitments), (b) is redeemable at the option of the holder
thereof (other than solely for Qualified Equity Interests), in whole or in
part,
(c) provides for the scheduled payments of dividends in cash, or (d) is or
becomes convertible into or exchangeable for Indebtedness or any other Equity
Interests that would constitute Disqualified Stock, in each case, prior to
the
date that is ninety-one (91) days after the Revolving Facility Maturity Date;
provided,
however,
that
only the portion of the Equity Interests that so mature or are mandatorily
redeemable, are so convertible or exchangeable or are so redeemable at the
option of the holder thereof prior to such date shall be deemed to be
Disqualified Stock; provided further,
however,
that if
such Equity Interests are issued to any employee or to any plan for the benefit
of employees of the Company or the Subsidiaries or by any such plan to such
employees, such Equity Interests shall not constitute Disqualified Stock solely
because they may be required to be repurchased by the Company in order to
satisfy applicable statutory or regulatory obligations or as a result of such
employee’s termination, death or disability.
Amended
and Restated Revolving Credit Agreement
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“Distributions”
shall
have the meaning assigned to such term in Section 6.06.
“Documentation
Agents”
shall
have the meaning assigned to such term in the introductory paragraph of this
Agreement.
“Dollar”
and
“$”
means
dollars in the lawful currency of the United States.
“Dollar
Equivalent”
means,
at any time, (a) with respect to any amount denominated in Dollars, such amount,
and (b) with respect to any amount denominated in any currency other than
Dollars, the equivalent amount thereof in Dollars as determined by the
Administrative Agent at such time on the basis of the Spot Rate (determined
in
respect of the most recent Revaluation Date or other applicable date of
determination) for the purchase of Dollars with such currency.
“Domestic
Subsidiary”
shall
mean any Subsidiary that is not a Foreign Subsidiary or a Qualified CFC Holding
Company or a subsidiary listed on Schedule
1.01(a).
“EBITDA”
shall
mean, with respect to the Company and the Subsidiaries on a consolidated basis
for any period, the Consolidated Net Income of the Company and the Subsidiaries
for such period plus
(a) the
sum of (in each case without duplication and to the extent the respective
amounts described in subclauses (i) through (vii) of this clause (a)
reduced such Consolidated Net Income (and were not excluded therefrom) for
the
respective period for which EBITDA is being determined):
(i)provision
for Taxes based on income, profits or capital of the Company and the
Subsidiaries for such period, including, without limitation, state, franchise
and similar taxes,
(ii)Interest
Expense of the Company and the Subsidiaries for such period (net of interest
income of the Company and its Subsidiaries for such period),
(iii)depreciation
and amortization expenses of the Company and the Subsidiaries for such
period,
(iv)business
optimization expenses and other restructuring charges (which, for the avoidance
of doubt, shall include, without limitation, the effect of inventory
optimization programs, plant closure, retention, severance, systems
establishment costs and excess pension charges); provided,
that
with respect to each business optimization expense or other restructuring
charge, the Company shall have delivered to the Administrative Agent an
officers’ certificate specifying and quantifying such expense or
charge,
(v)any
other
non-cash charges; provided,
that,
for purposes of this subclause (v) of this clause (a), any non-cash
charges or losses shall be treated as cash charges or losses in any subsequent
period during which cash disbursements attributable thereto are made,
Amended
and Restated Revolving Credit Agreement
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(vi)the
amount of management, consulting, monitoring, transaction and advisory fees
and
related expenses paid to any Fund or any Fund Affiliates (or any accruals
related to such fees and related expenses) during such period; provided,
that
such amount shall not exceed in any four quarter period the sum of (i) the
greater of $7.5 million and 2.0% of EBITDA for such four quarter period,
plus
(ii) the
amount of deferred fees (to the extent such fees would otherwise have been
permitted to be included in clause (i) if paid, but were not included in such
clause (i)), plus
(iii)
2.0% of the value of transactions permitted hereunder and entered into by the
Company or any of the Subsidiaries with respect to which any Fund or any Fund
Affiliate provides any of the aforementioned types of services, and
(vii)non-operating
expenses.
minus
(b) the
sum of (without duplication and to the extent the amounts described in this
clause (b) increased such Consolidated Net Income for the respective period
for which EBITDA is being determined) non-cash items increasing Consolidated
Net
Income of the Company and the Subsidiaries for such period (but excluding any
such items (A) in respect of which cash was received in a prior period or will
be received in a future period or (B) which represent the reversal of any
accrual of, or cash reserve for, anticipated cash charges in any prior
period).
For
purposes of determining EBITDA under this Agreement for any quarter ending
prior
to the first full quarter ending after the Closing Date, EBITDA for such fiscal
quarter shall be calculated on a Pro Forma Basis giving effect to the Business
Combination and the other Transactions occurring on the Closing
Date.
“Eligible
Accounts”
means
all Accounts of the Borrowers reflected in the most recent Borrowing Base
Certificate, except any Account with respect to which any of the exclusionary
criteria set forth below applies (unless the Administrative Agent in its
reasonable discretion elects to include such Account), such excluded Accounts
being any Account or Accounts:
(a) with
respect to which more than 120 days have elapsed since the date of the original
invoice therefor or which is more than 60 days past due; provided
that
Accounts listed on Schedule
1.01(e)
(as
updated from time to time by the Company with the consent of the Administrative
Agent (not to be unreasonably withheld or delayed)) in an aggregate amount
of
not more than $5 million at any time shall be ineligible pursuant to this clause
(a) only if they are more than 60 days past due or 180 days from the invoice
date;
(b) that
do
not represent a bona fide indebtedness incurred in the amount of the Account
for
goods sold or services rendered to, and accepted by, the applicable Account
Debtor; or that are not for a liquidated amount payable by the Account Debtor
on
the terms then in effect for such Account; or for which payment has been or
will
be received or credit, discount or extension, or agreement therefor, or
compromise, compounding or settlement thereof, has been or will be granted,
or
any party liable thereon has been released, in each case other than in the
ordinary course of business consistent with past practice; or for which invoices
have not been issued or copies of any
Amended
and Restated Revolving Credit Agreement
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invoice
with respect to such Account delivered to the Collateral Agent by any Loan
Party
do not represent genuine copies of the original invoice sent to the Account
Debtor named therein;
(c) with
respect to which Account (or any other Account due from such Account Debtor),
in
whole or in part, a check, promissory note, draft, trade acceptance, or other
instrument for the payment of money has been received, presented for payment,
and returned uncollected for any reason;
(d) which
represents a progress billing; provided
that for
the purposes hereof, “progress billing” means any invoice for goods sold or
leased or services rendered under a contract or agreement pursuant to which
the
Account Debtor’s obligation to pay such invoice is conditioned upon the
applicable Borrower’s completion of any further performance under the contract
or agreement;
(e) with
respect to which any one or more of the following events has occurred to the
Account Debtor on such Account: (i) death or judicial declaration of
incompetency of an Account Debtor who is an individual; (ii) the filing by
or
against the Account Debtor of a request or petition for liquidation,
reorganization, arrangement, adjustment of debts, adjudication as a bankrupt,
winding-up, or other relief under the bankruptcy, insolvency, or similar laws
of
the United States, any state or territory thereof, or any foreign jurisdiction,
now or hereafter in effect; (iii) the making of any general assignment by the
Account Debtor for the benefit of creditors; (iv) the appointment of a receiver
or trustee for the Account Debtor or for all or a substantial portion of the
assets of the Account Debtor, including, without limitation, the appointment
of
or taking possession by a “custodian”, as defined in the Bankruptcy Code; (v)
the institution by or against the Account Debtor of any other type of insolvency
proceeding (under the Bankruptcy Code or otherwise) or of any formal or informal
proceeding for the dissolution or liquidation of, settlement of claims against,
or winding up of affairs of, the Account Debtor; (vi) the sale, assignment,
or
transfer of all or substantially all of the assets of the Account Debtor (unless
the obligations under such Account are assumed by the successor); (vii) the
nonpayment generally by the Account Debtor of its debts as they become due;
or
(viii) the cessation of the business of the Account Debtor as a going
concern;
(f) if
fifty
percent (50.0%) or more of the aggregate Dollar amount of outstanding Accounts
owed at such time by the Account Debtor thereon is classified as ineligible
under clause
(a)
preceding;
(g) owed
by
an Account Debtor which: (i) is not organized under the laws of the United
States or Canada or any political subdivision, state, or province thereof;
or
(ii) is the government of any foreign country or sovereign state, or of any
state, province, municipality, or other political subdivision thereof, or of
any
department, agency, public corporation, or other instrumentality thereof; except
to the extent that such Account is insured by the Export-Import Bank of the
United States or secured or payable by a letter of credit satisfactory to the
Administrative Agent in its reasonable discretion;
Amended
and Restated Revolving Credit Agreement
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(h) which
are
Intercompany Accounts or other Accounts owed by an Account Debtor which is
an
Affiliate or employee of any Borrower (not including, for the avoidance of
doubt, any Apollo Operating Company);
(i) except
as
agreed by the Administrative Agent as provided in clause
(g)
preceding or clause
(l)
following regarding political subdivisions of the United States but not the
U.S.
federal government, with respect to which either the perfection, enforceability,
or validity of the Collateral Agent’s Lien in such Account, or the Collateral
Agent’s right or ability to obtain direct payment to the Collateral Agent of the
proceeds of such Account, is governed by any federal, state, or local statutory
requirements other than those of the UCC; except to the extent that such Account
is insured by the Export-Import Bank of the United States or secured or payable
by a letter of credit satisfactory to the Administrative Agent in its reasonable
discretion;
(j) owed
by
an Account Debtor to which a Loan Party or any of their respective Subsidiaries
is indebted in any way, or which is subject to any right of set-off or
recoupment by the Account Debtor (but only to the extent of such indebtedness,
right of set-off or recoupment), unless the Account Debtor has entered into
an
agreement acceptable to the Administrative Agent to waive set-off rights; or
if
the Account Debtor thereon has disputed liability on such Account or made any
claim with respect to any other Account due from such Account Debtor (but only
to the extent of such disputed liability or claim); but in each such case only
if the aggregate amount of all such indebtedness, set-offs, recoupments,
disputes and claims with respect to all Eligible Accounts exceeds $2 million,
and then only to the extent of such aggregate indebtedness, set-offs,
recoupments, disputes and claims in excess of $2 million;
(k) with
respect to which any Borrower at the time of determination deems such Account
as
uncollectible;
(l) owed
by
any state of the United States or any municipality, or other political
subdivision, department, agency, public corporation, or other instrumentality
thereof, and as to which the Collateral Agent determines that its Lien therein
is not or cannot be perfected; except to the extent that such Account is insured
by the Export-Import Bank of the United States or secured or payable by a letter
of credit satisfactory to the Administrative Agent in its reasonable
discretion;
(m) which
represents a sale on a xxxx-and-hold, guaranteed sale, sale and return, sale
on
approval, consignment, or other repurchase or return basis;
(n) which
is
evidenced by a promissory note or other instrument or by chattel
paper;
(o) of
any
one Account Debtor or group of affiliated Account Debtors that are in excess
of
(i) 35%, in the case of Wal-Mart Stores, Inc., its Affiliates and subsidiaries,
and (ii) 20% in the case of all other Account Debtors, of total Eligible
Accounts;
Amended
and Restated Revolving Credit Agreement
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(p) which
arises out of a sale not made in the ordinary course of such Borrower’s business
except to the extent that the aggregate amount of such Accounts outstanding
does
not exceed $2 million;
(q) with
respect to which the goods giving rise to such Account have not been shipped
and
delivered to, or have been rejected by, the Account Debtor or the services
giving rise to such Account have not been performed by the applicable Borrower,
and, if applicable, accepted by the Account Debtor, or the Account Debtor
revokes its acceptance of such goods or services, but, in each case, only to
the
extent of the portion of such Account applicable to goods or services in
question;
(r) which
arises out of an enforceable contract or order which, by its terms, validly
forbids, restricts, or makes void or unenforceable the granting of a Lien by
such Loan Party to the Collateral Agent with respect to such
Account;
(s) which
is
not subject to a first priority and perfected security interest in favor of
the
Collateral Agent, for the benefit of the Collateral Agent and the Lenders,
or
which is subject to any other Lien other than Liens securing the Second Lien
Obligations and the Term Loan Obligations and Permitted Liens arising by
operation of law; and
(t) 30%
of
the value of each Account which is owed to a Newly Obligated Party acquired
in a
Permitted Business Acquisition under this Agreement, for which the
Administrative Agent has not been given the opportunity for a reasonable period
(which shall not be required to be longer than thirty (30) days (or, in the
case
of acquisitions of less than $50 million, twenty (20) days)) prior to and/or
after the closing of such acquisition to complete such due diligence as it
deems, in the exercise of Reasonable Credit Judgment, to be necessary in the
circumstances.
If
any
Account at any time ceases to be an Eligible Account, then such Account shall
promptly be excluded from the calculation of the Borrowing Base; provided,
however,
that if
any Account ceases to be an Eligible Account because of the adjustment of or
imposition of new exclusionary criteria pursuant to the succeeding paragraph,
the Administrative Agent will not require exclusion of such Account from the
Borrowing Base until 20 days following the date on which the Administrative
Agent gives notice to the Company of such ineligibility.
The
Administrative Agent and the Collateral Agent reserve the right, at any time
and
from time to time after the Closing Date, or upon reasonable request of the
Company upon completion and delivery to the Administrative Agent of field
examinations and appraisals in accordance with Section 5.12 (including, without
limitation, the Post-Closing Reports), to adjust any of the exclusionary
criteria set forth above and to establish new criteria, in their Reasonable
Credit Judgment (based on an analysis of material facts or events first
occurring, or first discovered by such Agents, in connection with the
preparation and review of the Post-Closing Reports or thereafter), subject,
after any adjustments based on the Post-Closing Reports, to the approval of
Required Lenders in the case of adjustments or new criteria which have the
effect of making more credit available than would have been available based
upon
the criteria in effect.
Amended
and Restated Revolving Credit Agreement
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“Eligible
Inventory”
means
all Inventory of the Borrowers reflected in the most recent Borrowing Base
Certificate, except any Inventory with respect to which any of the exclusionary
criteria set forth below applies (unless the Administrative Agent in its
reasonable discretion elects to include any such Inventory):
(a) Inventory
that is not owned by a Borrower;
(b) Inventory
that is not subject to the Collateral Agent’s Liens, or is subject to any other
Lien (other than Permitted Liens arising by operation of law or the Liens
securing the Second Lien Obligations and the Term Loan Obligations);
provided
that
(unless such Permitted Liens (A) are junior in priority to the Collateral
Agent’s Liens (other than statutory landlord’s Liens to the extent provided
otherwise by a Requirement of Law) and (B) do not impair directly or indirectly
the ability of the Collateral Agent to realize on or obtain the full benefit
of
the Collateral), the Administrative Agent may, in the exercise of Reasonable
Credit Judgment, establish a Reserve against availability with respect to any
Inventory subject to such Permitted Liens in an amount not to exceed (on an
aggregate basis for all Inventory from time to time subject to such Permitted
Liens) (A) in the case of Inventory subject to Liens described in Section
6.02(e), the greater of (x) an amount equal to the amount which would have
to be
paid to such Lien claimant in order to obtain a release of such Liens, or (y)
an
amount equal to thirty (30) days’ rent for the properties or facilities on or at
which the applicable Inventory is located and (B) in the case of Inventory
subject to Liens described in Section 6.02(d), the amount of such taxes, fees,
assessments or other charges;
(c) Inventory
that consists of packing and shipping materials (other than finished goods
inventory), or advertising or marketing materials (including
samples);
(d) Inventory
that is unmerchantable, or the sale or other disposition of which would
contravene in any material respect any applicable laws or other governmental
rules or regulations, but only if such contravention would have a material
effect on the salability or value of such Inventory;
(e) Inventory
that is not currently either usable or salable in the normal course of the
applicable Borrower’s business, as so identified according to the Company’s
accounting policy;
(f) Inventory
that is slow-moving, obsolete or defective, as so identified according to the
Company’s accounting policy;
(g) Inventory
that has been returned to a Borrower or a Subsidiary by a buyer or held for
return by a supplier (and is not held for resale);
(h) Inventory
that is subject to any Lien permitted under Section 6.02(p) or (bb) or any
other
Inventory financed by letters of credit or bankers’ acceptances for which the
Collateral Agent does not have possession or control of the documents of
title;
(i) Inventory
that is not located within the United States or Canada (or is in-transit from
vendors or suppliers, except that in-transit Inventory will not be
deemed
Amended
and Restated Revolving Credit Agreement
-25-
ineligible
if (i) in the case of in-transit inventory not located within the United States
or Canada, it has been paid for in advance of shipment and legal ownership
thereof has passed to the applicable Borrower as evidenced by customary
documents of title, and (ii) in the case of in-transit Inventory located within
the United States or Canada, legal ownership thereof has passed to the
applicable Borrower as evidenced by customary documents of title);
(j) Inventory
that is (i) stored or located on property that is (A) leased to the Borrower
that owns such Inventory, or (B) owned or leased by a warehouseman that has
contracted with such Borrower to store such Inventory, or (ii) stored with
or
otherwise in the possession of a bailee, provided
that
such Inventory shall not be excluded if (1) the applicable Borrower shall have
delivered to the Collateral Agent a Collateral Access Agreement executed by
such
lessor or warehouseman or bailee with respect to such property, (2) the
Collateral Agent has given its prior consent thereto, or (3) Reserves have
been
established with respect thereto, in an amount (on an aggregate basis for all
Inventory from time to time so located or possessed) not to exceed (a) in the
case of Inventory located in a warehouse or leased facility, the greater of
(x)
an amount equal to the amount which would have to be paid to such claimant
in
order to obtain a release of any Permitted Lien held by such claimant, or (y)
an
amount equal to thirty (30) days’ rent or storage fee for the warehouses or
facilities on or at which the applicable Inventory is located and (b) in the
case of Inventory otherwise in the possession of a bailee, the amount necessary
to complete any work being performed on such Inventory and/or to obtain a
surrender of the Inventory to the possession of the applicable Borrower or
the
Collateral Agent, or, in any such case under this clause (3), such lesser amount
as may be approved by the Collateral Agent;
(k) if
such
Inventory contains or bears any Proprietary Rights licensed to a Borrower by
any
third party, and the Administrative Agent shall not be able to sell or otherwise
dispose of such Inventory pursuant to Article
VII
or the
terms of the Collateral Agreement subject to the same rights and obligations
as
the applicable Borrower pursuant to the contract with such licensor without
infringing the rights of the licensor of such Proprietary Rights or violating
any contract with such licensor (and without payment of any royalties other
than
any royalties due with respect to the sale or disposition of such Inventory
pursuant to the existing license agreement), and, if the Administrative Agent
deems it necessary, such Borrower shall deliver to the Administrative Agent
a
consent or sublicense agreement from such licensor in form and substance
reasonably acceptable to the Administrative Agent; and
(l) 20%
of
the total book value of Inventory that is owned by a Newly Obligated Party
acquired in a Permitted Business Acquisition under this Agreement, for which
the
Administrative Agent has not been given the opportunity for a reasonable period
(which shall not be required to be longer than thirty (30) days (or, in the
case
of acquisitions of less than $50 million, twenty (20) days)) prior to and/or
after the closing of such acquisition to complete such due diligence as it
deems, in the exercise of Reasonable Credit Judgment, to be necessary in the
circumstances.
Amended
and Restated Revolving Credit Agreement
-26-
If
any
Inventory at any time ceases to be Eligible Inventory, such Inventory shall
promptly be excluded from the calculation of the Borrowing Base; provided,
however,
that if
any Inventory ceases to be Eligible Inventory because of the adjustment of
or
imposition of new exclusionary criteria pursuant to the succeeding paragraph,
the Agents will not require exclusion of such Inventory from the Borrowing
Base
until 20 days following the date on which the Administrative Agent gives notice
to the Company of such ineligibility.
The
Administrative Agent and the Collateral Agent reserve the right, at any time
and
from time to time after the Closing Date, or upon reasonable request of the
Company upon completion and delivery to the Administrative Agent of field
examinations and appraisals in accordance with Section 5.12 (including, without
limitation, the Post-Closing Reports), to adjust any of the exclusionary
criteria set forth above and to establish new criteria, in their Reasonable
Credit Judgment (based on an analysis of material facts or events first
occurring, or first discovered by such Agents, in connection with the
preparation and review of the Post-Closing Reports or thereafter), subject,
after any adjustments based on the Post-Closing Reports, to the approval of
Required Lenders in the case of adjustments or new criteria which have the
effect of making more credit available than would have been available based
upon
the criteria in effect.
“EMU”
means
the economic and monetary union in accordance with the Treaty of Rome 1957,
as
amended by the Single Xxxxxxxx Xxx 0000, the Maastricht Treaty of 1992 and
the
Amsterdam Treaty of 1998.
“EMU
Legislation”
means
the legislative measures of the European Council for the introduction of,
changeover to or operation of a single or unified European
currency.
“environment”
shall
mean ambient and indoor air, surface water and groundwater (including potable
water, navigable water and wetlands), the land surface or subsurface strata,
natural resources such as flora and fauna, the workplace or as otherwise defined
in any Environmental Law.
“Environmental
Laws”
shall
mean all applicable laws (including common law), rules, regulations, codes,
ordinances, orders, decrees or judgments, promulgated or entered into by any
Governmental Authority, relating in any way to the environment, preservation
or
reclamation of natural resources, the generation, management, Release or
threatened Release of, or exposure to, any Hazardous Material or to occupational
health and safety matters (to the extent relating to the environment or
Hazardous Materials).
“Equity
Interests”
of
any
person shall mean any and all shares, interests, rights to purchase or otherwise
acquire, warrants, options, participations or other equivalents of or interests
in (however designated) equity or ownership of such person, including any
preferred stock, any limited or general partnership interest and any limited
liability company membership interest, and any
securities or other rights or interests convertible into or exchangeable for
any
of the foregoing.
“Equity
Investors”
means
one or more investment funds advised, managed or controlled by Apollo Management
V, L.P. Apollo Management VI, L.P., their Affiliates, and any group in which
any
such Equity Investors are, in the aggregate, a principal
member.
Amended
and Restated Revolving Credit Agreement
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“ERISA”
shall
mean the Employee Retirement Income Security Act of 1974, as the same may be
amended from time to time and any final regulations promulgated and the rulings
issued thereunder.
“ERISA
Affiliate”
shall
mean any trade or business (whether or not incorporated) that, together with
Holdings, the Company or a Subsidiary, is treated as a single employer under
Section 414(b) or (c) of the Code, or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.
“ERISA
Event”
shall
mean (a) any Reportable Event or
the
requirements of Section 4043(b) of ERISA apply with respect to a
Plan;
(b) the
existence with respect to any Plan of an “accumulated funding deficiency” (as
defined in Section 412 of the Code or Section 302 of ERISA), whether
or not waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan, the failure to make by its due date
a
required installment under Section 412(m) of the Code with respect to any
Plan or the failure to make any required contribution to a Multiemployer Plan;
(d) the incurrence by Holdings, the Company, a Subsidiary or any ERISA Affiliate
of any liability under Title IV of ERISA with respect to the termination of
any
Plan or Multiemployer Plan; (e) the receipt by Holdings, the Company, a
Subsidiary or any ERISA Affiliate from the PBGC or a plan administrator of
any
notice relating to an intention to terminate any Plan or to appoint a trustee
to
administer any Plan under Section 4042 of ERISA; (f) the incurrence by
Holdings, the Company, a Subsidiary or any ERISA Affiliate of any liability
with
respect to the withdrawal or partial withdrawal from any Plan or Multiemployer
Plan; (g) the receipt by Holdings, the Company, a Subsidiary or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from Holdings,
the Company, a Subsidiary or any ERISA Affiliate of any notice, concerning
the
impending imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA;
(h) the
conditions for imposition of a lien under Section 302(f) of ERISA shall have
been met with respect to any Plan; or (i) the adoption of an amendment to a
Plan
requiring the provision of security to such Plan pursuant to Section 307 of
ERISA.
“Euro”
and
“EUR”
each
shall mean the lawful currency of the Participating Member States introduced
in
accordance with the EMU Legislation.
“Eurocurrency
Borrowing”
shall
mean a Borrowing comprised of Eurocurrency Loans.
“Eurocurrency
Loan”
shall
mean any Eurocurrency Revolving Loan.
“Eurocurrency
Revolving Facility Borrowing”
shall
mean a Borrowing comprised of Eurocurrency Revolving Loans.
Amended
and Restated Revolving Credit Agreement
-28-
“Eurocurrency
Revolving Loan”
shall
mean any Revolving Loan bearing interest at a rate determined by reference
to
the Adjusted LIBO Rate in accordance with the provisions of
Article II.
“Event
of Default”
shall
have the meaning assigned to such term in Section 7.01.
“Excess
Cash Flow”
shall
mean, with respect to the Company and its Subsidiaries on a consolidated basis
for any Applicable Period, EBITDA of the Company and its Subsidiaries on a
consolidated basis for such Applicable Period, minus,
without
duplication,
(a)Debt
Service for such Applicable Period,
(b)the
amount of any voluntary prepayment permitted hereunder (or, if made prior to
the
Closing Date, permitted under the senior secured bank credit facility then
applicable to such entity) of term Indebtedness during such Applicable Period
(other than any voluntary prepayment of the Revolving Loans), so long as the
amount of such prepayment is not already reflected in Debt Service,
(c)(i)
Capital Expenditures by the Company and the Subsidiaries on a consolidated
basis
during such Applicable Period that are paid in cash (to the extent permitted
under this Agreement) and (ii) the aggregate consideration paid in cash during
the Applicable Period in respect of Permitted Business Acquisitions and other
Investments permitted hereunder less
any
amounts received in respect thereof as a return of capital,
(d)Capital
Expenditures that the Company or any Subsidiary shall, during such Applicable
Period, become obligated to make but that are not made during such Applicable
Period (to the extent permitted under this Agreement or if prior to the Closing
Date, the senior secured bank credit facility then applicable to such entity);
provided,
that
(i) Holdings shall deliver a certificate to the Administrative Agent not later
than 90 days after the end of such Applicable Period, signed by a Responsible
Officer of the Company and certifying that such Capital Expenditures and the
delivery of the related equipment will be made in the following Applicable
Period, and (ii) any amount so deducted shall not be deducted again in a
subsequent Applicable Period,
(e)Taxes
paid in cash by Holdings and its Subsidiaries on a consolidated basis during
such Applicable Period or that will be paid within six months after the close
of
such Applicable Period; provided,
that
with respect to any such amounts to be paid after the close of such Applicable
Period, (i) any amount so deducted shall not be deducted again in a subsequent
Applicable Period, and (ii) appropriate reserves shall have been established
in
accordance with GAAP,
(f)an
amount
equal to any increase in Working Capital of the Company and its Subsidiaries
for
such Applicable Period,
(g)cash
expenditures made in respect of Swap Agreements during such Applicable Period,
to the extent not reflected in the computation of EBITDA or Interest
Expense,
Amended
and Restated Revolving Credit Agreement
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(h)permitted
dividends or distributions or repurchases of its Equity Interests paid in cash
by the Company during such Applicable Period and permitted dividends paid by
any
Subsidiary to any person other than Holdings, the Company or any of the
Subsidiaries during such Applicable Period, in each case in accordance with
Section 6.06 hereof (or the corresponding provision of the senior secured
bank credit facility then applicable to such entity) (other than
Section 6.06(e) or the corresponding provision of the senior secured bank
credit facility then applicable to such entity),
(i)amounts
paid in cash during such Applicable Period on account of (A) items that were
accounted for as noncash reductions of Net Income in determining Consolidated
Net Income or as noncash reductions of Consolidated Net Income in determining
EBITDA of the Company and its Subsidiaries in a prior Applicable Period and
(B)
reserves or accruals established in purchase accounting,
(j)to
the
extent not deducted in the computation of Net Proceeds in respect of any asset
disposition or condemnation giving rise thereto, the amount of any mandatory
prepayment of Indebtedness (other than Indebtedness created hereunder or under
any other Loan Document), together with any interest, premium or penalties
required to be paid (and actually paid) in connection therewith,
(k)the
aggregate amount of items that were added to or not deducted from Net Income
in
calculating Consolidated Net Income or were added to or not deducted from
Consolidated Net Income in calculating EBITDA to the extent such items
represented a cash payment (which had not reduced Excess Cash Flow upon the
accrual thereof in a prior Applicable Period), or an accrual for a cash payment,
by the Company and its Subsidiaries or did not represent cash received by the
Company and its Subsidiaries, in each case on a consolidated basis during such
Applicable Period, and
(l)amounts
paid in cash during such Applicable Period in respect of obligations under
Sections 2.9 and 5.4 of the Acquisition Agreement,
plus,
without
duplication,
(i)an
amount
equal to any decrease in Working Capital for such Applicable
Period,
(ii)all
amounts referred to in clauses (b), (c), (d) and (h) above to the extent
funded with the proceeds of the issuance or the incurrence of Indebtedness
(including Capital Lease Obligations and purchase money Indebtedness, but
excluding, solely as relating to Capital Expenditures, proceeds of Revolving
Loans (or, if prior to the Closing Date, revolving loans pursuant to the senior
secured bank credit facility then applicable to such entity)), the sale or
issuance of any Equity Interests (including any capital contributions) and
any
loss, damage, destruction or condemnation of, or any sale, transfer or other
disposition (including any sale and leaseback of assets and any mortgage or
lease of Real Property) to any person of any asset or assets, in each case
to
the extent there is a corresponding deduction from Excess Cash Flow
above,
Amended
and Restated Revolving Credit Agreement
-30-
(iii)to
the
extent any permitted Capital Expenditures referred to in clause (d) above
and the delivery of the related equipment do not occur in the following
Applicable Period of the Company specified in the certificate of the Company
provided pursuant to clause (d) above, the amount of such Capital
Expenditures that were not so made in such following Applicable
Period,
(iv)cash
payments received in respect of Swap Agreements during such Applicable Period
to
the extent (i) not included in the computation of EBITDA or (ii) such payments
do not reduce Cash Interest Expense,
(v)any
extraordinary or nonrecurring gain realized in cash during such Applicable
Period,
(vi)to
the
extent deducted in the computation of EBITDA, cash interest income,
and
(vii) the
aggregate amount of items that were deducted from or not added to Net Income
in
connection with calculating Consolidated Net Income or were deducted from or
not
added to Consolidated Net Income in calculating EBITDA to the extent either
(i)
such items represented cash received by the Company or any Subsidiary or (ii)
such items do not represent cash paid by the Company or any Subsidiary, in
each
case on a consolidated basis during such Applicable Period.
“Excess
Cash Flow Interim Period”
shall
mean, (x) during any Excess Cash Flow Period, any one-, two-, or three-quarter
period (a) commencing on the later of (i) the end of the immediately preceding
Excess Cash Flow Period and (ii) if applicable, the end of any prior Excess
Cash
Flow Interim Period occurring during the same Excess Cash Flow Period and (b)
ending on the last day of the most recently ended fiscal quarter (other than
the
last day of the Fiscal Year) during such Excess Cash Flow Period for which
financial statements are available and (y) during the period from the Original
Agreement Date until the beginning of the first Excess Cash Flow Period, any
period commencing on the Original Agreement Date and ending on the last day
of
the most recently ended fiscal quarter for which financial statements are
available.
“Excess
Cash Flow Period”
shall
mean (i) each fiscal year of the Company, commencing with the first full fiscal
year of the Company following the Closing Date, and (ii) the period from January
1, 2007 through the day prior to the initial fiscal year referred to in clause
(i).
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Excluded
Indebtedness”
shall
mean all Indebtedness permitted to be incurred under Section 6.01(other
than Section 6.01(v)).
“Excluded
Taxes”
shall
mean, with respect to the Administrative Agent, any Lender, any Issuing Bank
or
any other recipient of any payment to be made by or on account of any obligation
of any Borrower hereunder, (a) any income taxes imposed on (or measured by)
its
net income (or franchise taxes imposed in lieu of net income taxes) by the
United States of America (or any state or locality thereof) or the jurisdiction
under the laws of which such
Amended
and Restated Revolving Credit Agreement
-31-
recipient
is organized or in which its principal office is located or, in the case of
any
Lender, in which its applicable Lending Office is located or any other
jurisdiction as a result of such recipient engaging in a trade or business
in
such jurisdiction for tax purposes, (b) any branch profits tax or any similar
tax that is imposed by any jurisdiction described in clause (a) above, (c)
in the case of a Lender making a Loan to any Borrower, any tax (including any
backup withholding tax) imposed by the United States (or the jurisdiction under
the laws of which such Lender is organized or in which its principal office
is
located or in which its applicable Lending Office is located or any other
jurisdiction as a result of such Lender engaging in a trade or business or
having a taxable presence in such jurisdiction for tax purposes) that (x) is
in
effect and would apply to amounts payable hereunder to such Lender at the time
such Lender becomes a party to such Loan to any Borrower (or designates a new
Lending Office) except to the extent that the assignor to such Lender in the
case of an assignment or the Lender in the case of a designation of a new
Lending Office (for the absence of doubt, other than the Lending Office at
the
time such Lender becomes a party to such Loan) was entitled, at the time of
such
assignment or designation of a new Lending Office, respectively, to receive
additional amounts from a Loan Party with respect to any withholding tax
pursuant to Section 2.17(a) or Section 2.17(c) or (y) is attributable
to such Lender’s failure to comply with Section 2.17(e) or (f) with respect
to such Loan and (d) any taxes that are imposed as a result of any event
occurring after the Lender becomes a Lender (other than a Change in Law) in
the
case of clause (a), (b), (c), and (d), together with any and all interest and
penalties related thereto.
“Existing
Bankers’ Acceptance”
shall
mean each of the bankers’ acceptances set forth on Schedule
1.01(f).
“Existing
Credit Agreement”
shall
have the meaning set forth in the recitals hereto.
“Existing
Letter of Credit”
shall
mean each of the letters of credit set forth on Schedule
1.01(g).
“Existing
Term Loan Agreement”
shall
have the meaning set forth in the recitals hereto.
“Facility”
shall
mean the Revolving Facility.
“Federal
Funds Effective Rate”
shall
mean, for any day, the rate per annum equal to the weighted average of the
rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided
that (a)
if such day is not a Business Day, the Federal Funds Effective Rate for such
day
shall be such rate on such transactions on the next preceding Business Day
as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Effective
Rate
for such day shall be the average rate (rounded upward, if necessary, to a
whole
multiple of 1/100 of 1%) charged to Bank of America on such day on such
transactions as determined by the Administrative Agent.
Amended
and Restated Revolving Credit Agreement
-32-
“Fee
Letter”
shall
mean that certain Fee Letter dated March 2, 2007 by and among the Company,
Bank
of America, N.A., Banc of America Securities LLC, Citigroup Global Markets
Inc.,
Credit Suisse, Credit Suisse Securities (USA) LLC, Deutsche Bank AG New York
Branch, Deutsche Bank Securities Inc., Xxxxxxx Xxxxx Credit Partners L.P.,
JPMorgan Chase Bank, N.A., X.X. Xxxxxx Securities Inc. and Xxxxxx Brothers
Inc.
“Fees”
shall
mean the Commitment Fees, the L/C Participation Fees, the Issuing Bank Fees
and
the Administrative Agent Fees.
“Financial
Officer”
of
any
person shall mean the Chief Financial Officer, principal accounting officer,
Treasurer, Assistant Treasurer or Controller of such person.
“First
Lien Debt”
at
any
date shall mean (i) the aggregate principal amount of Consolidated Debt of
the
Company and its Subsidiaries outstanding at such date that consists of, without
duplication, Indebtedness that in each case is then secured by first priority
Liens on property or assets of the Company and its Subsidiaries (other than
property or assets held in a defeasance or similar trust or arrangement for
the
benefit of the Indebtedness secured thereby), less (ii) without duplication,
the
Unrestricted Cash and Permitted Investments of the Company and its Subsidiaries
on such date.
“Fiscal
Period”
means
a
calendar month.
“Foreign
Pledge Agreement”
shall
mean a pledge agreement with respect to the Pledged Collateral that constitutes
Equity Interests of a “first tier” Foreign Subsidiary, in form and substance
reasonably satisfactory to the Collateral Agent; provided,
that in
no event shall more than 65% of the issued and outstanding Equity Interests
of
such Foreign Subsidiary be pledged to secure Obligations of the
Borrowers.
“Foreign
Subsidiary”
shall
mean any Subsidiary that is incorporated or organized under the laws of any
jurisdiction other than the United States of America, any State thereof or
the
District of Columbia.
“Fund
Affiliates”
shall
mean (i) each Affiliate of any Funds, (ii) any individual who is a partner
or
employee of Apollo Management, L.P., Apollo Management IV, L.P. or Apollo
Management V, L.P., Apollo Management VI, L.P., and (iii) Xxxxxx BPC Investment
Holdings, LP.
“Fund
I”
shall
mean Apollo Management V, L.P. and other affiliated co-investment
partnerships.
“Fund
II”
shall
mean affiliates of Apollo Management VI, L.P. and other affiliated co-investment
partnerships and Xxxxxx Partners Inc.
“Fund
Termination Fee”
shall
have the meaning specified in Section 6.07(b)(xiv).
“Funds”
shall
mean Fund I and Fund II, collectively.
Amended
and Restated Revolving Credit Agreement
-33-
“GAAP”
shall
mean generally accepted accounting principles in effect from time to time in
the
United States, applied on a consistent basis, subject to the provisions of
Section 1.02; provided
that any
reference to the application of GAAP in Sections 3.13(b), 3.20, 5.03, 5.07
and
6.02(e) to a Foreign Subsidiary (and not as a consolidated Subsidiary of the
Company) shall mean generally accepted accounting principles in effect from
time
to time in the jurisdiction of organization of such Foreign Subsidiary.
“Governmental
Authority”
shall
mean any federal, state, local or foreign court or governmental agency,
authority, instrumentality or regulatory or legislative body.
“Guarantee”
of
or
by any person (the “guarantor”)
shall
mean (a) any obligation, contingent or otherwise, of the guarantor guaranteeing
or having the economic effect of guaranteeing any Indebtedness or other
obligation of any other person (the “primary
obligor”)
in any
manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation
(whether arising by virtue of partnership arrangements, by agreement to keep
well, to purchase assets, goods, securities or services, to take-or-pay or
otherwise) or to purchase (or to advance or supply funds for the purchase of)
any security for the payment of such Indebtedness or other obligation, (ii)
to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof,
(iii)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, (iv) entered into for
the
purpose of assuring in any other manner the holders of such Indebtedness or
other obligation of the payment thereof or to protect such holders against
loss
in respect thereof (in whole or in part) or (v) as an account party in respect
of any letter of credit, bank guarantee, bankers’ acceptance or other letter of
guaranty issued to support such Indebtedness or other obligation, or (b) any
Lien on any assets of the guarantor securing any Indebtedness (or any existing
right, contingent or otherwise, of the holder of Indebtedness to be secured
by
such a Lien) of any other person, whether or not such Indebtedness or other
obligation is assumed by the guarantor; provided,
however,
the
term “Guarantee” shall not include endorsements of instruments for deposit or
collection in the ordinary course of business or customary and reasonable
indemnity obligations in effect on the Closing Date or entered into in
connection with any acquisition or disposition of assets permitted by this
Agreement (other than such obligations with respect to Indebtedness). The amount
of any Guarantee shall be deemed to be an amount equal to the stated or
determinable amount of the Indebtedness in respect of which such Guarantee
is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such person is required to perform
thereunder) as determined by such person in good faith.
“guarantor”
shall
have the meaning assigned to such term in the definition of the term
“Guarantee.”
“Hazardous
Materials”
shall
mean all pollutants, contaminants, wastes, chemicals, materials, substances
and
constituents, including, without limitation, explosive or radioactive substances
or petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls or radon gas, of any nature subject to
regulation or which can give rise to liability under any Environmental
Law.
Amended
and Restated Revolving Credit Agreement
-34-
“Hedging
Obligations”
means,
with respect to any person, the obligations of such person under (i) currency
exchange, interest rate or commodity swap agreements, currency exchange,
interest rate or commodity cap agreements and currency exchange, interest rate
or commodity collar agreements, and (ii) other agreements or arrangements
designed to protect such person against fluctuations in currency exchange,
interest rates or commodity prices.
“Holdings”
shall
have the meaning assigned to such term in the introductory paragraph of this
Agreement.
“Immaterial
Subsidiary”
shall
mean any Subsidiary that is not a Borrower and that, as of the last day of
the
fiscal quarter of the Company most recently ended, (a) did not have assets
with
a value in excess of 5.0% of the Consolidated Total Assets or revenues
representing in excess of 5.0% of total revenues of the Company and the
Subsidiaries on a consolidated basis as of such date and (b) when taken together
with all other Immaterial Subsidiaries as of such date, did not have assets
with
a value in excess of 10.0% of the Consolidated Total Assets or revenues
representing in excess of 10.0% of total revenues of the Company and the
Subsidiaries on a consolidated basis as of such date. Each Immaterial Subsidiary
as of the Closing Date shall be set forth in Schedule
1.01(d).
“Increased
Amount Date”
shall
have the meaning assigned to such term in Section 2.21.
“Incremental
Amount”
shall
mean, at any time, the excess, if any, of (a) $150 million over
(b) the
aggregate amount of all Incremental Revolving Facility Commitments established
prior to such time pursuant to Section 2.21.
“Incremental
Assumption Agreement”
shall
mean an Incremental Assumption Agreement in form and substance reasonably
satisfactory to the Administrative Agent, among the Borrowers, the
Administrative Agent and one or more Incremental Revolving Lenders.
“Incremental
Revolving Facility Commitment”
shall
mean any increased or incremental Revolving Facility Commitment provided
pursuant to Section 2.21.
“Incremental
Revolving Lender”
shall
mean a Lender with a Revolving Facility Commitment or an outstanding Revolving
Loan as a result of an Incremental Revolving Facility Commitment.
“Indebtedness”
of
any
person shall mean, without duplication, (a) all obligations of such person
for
borrowed money, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
under conditional sale or other title retention agreements relating to property
or assets purchased by such person, (d) all obligations of such person issued
or
assumed as the deferred purchase price of property or services, to the extent
that the same would be required to be shown as a long term liability on a
balance sheet prepared in accordance with GAAP, (e) all Capital Lease
Obligations of such person, (f) all net payments that such person would have
to
make in the event of an early termination, on the date Indebtedness of such
person is being determined, in respect of outstanding Swap Agreements, (g)
the
principal component of all obligations, contingent or otherwise, of such person
as an account party in respect of letters of credit, (h) the
principal
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component
of all obligations of such person in respect of bankers’ acceptances, (i) all
Guarantees by such person of Indebtedness described in clauses (a) to (h) above)
and (j) the amount of all obligations of such person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock (excluding
accrued dividends that have not increased the liquidation preference of such
Disqualified Stock); provided,
that
Indebtedness shall not include (A) trade payables, accrued expenses and
intercompany liabilities arising in the ordinary course of business, (B) prepaid
or deferred revenue arising in the ordinary course of business, (C) purchase
price holdbacks arising in the ordinary course of business in respect of a
portion of the purchase prices of an asset to satisfy unperformed obligations
of
the seller of such asset, (D) earn-out obligations until such obligations become
a liability on the balance sheet of such person in accordance with GAAP or
(E)
obligations under Section 2.9 and 5.4 of the Acquisition Agreement. The
Indebtedness of any person shall include the Indebtedness of any partnership
in
which such person is a general partner, other than to the extent that the
instrument or agreement evidencing such Indebtedness expressly limits the
liability of such person in respect thereof.
“Indemnified
Taxes”
shall
mean all Taxes other than Excluded Taxes.
“Indemnitee”
shall
have the meaning assigned to such term in Section 9.05(b).
“Ineligible
Institution”
shall
mean the persons identified in writing to the Administrative Agent by the
Company on the Closing Date, and as may be identified in writing to the
Administrative Agent by the Company from time to time thereafter with the
consent of the Administrative Agent (not to be unreasonably withheld or
delayed), by delivery of a notice thereof to the Administrative Agent setting
forth such person or persons (or the person or persons previously identified
to
the Administrative Agent that are to be no longer considered “Ineligible
Institutions”).
“Information”
shall
have the meaning assigned to such term in Section 3.14(a).
“Information
Memorandum”
shall
mean the Confidential Information Memorandum dated March 13, 2007, as modified
or supplemented prior to the Closing Date.
“Initial
Pro Forma Adjustment”
shall
mean an amount equal to $2.75 million for each quarterly period ending March
2006 and June 2006, $5.876 million for the quarterly period ending September
2006, and $3.125 million for the quarterly period ending December
2006.
“Intellectual
Property Rights”
shall
have the meaning assigned to such term in Section 3.23.
“Intercreditor
Agreement”
shall
mean the Intercreditor Agreement by and among Credit Suisse and Bank of America,
as first lien agents, Xxxxx Fargo Bank, N.A., as trustee, Holdings, the Company
and the Subsidiary Loan Parties, as in effect on the Closing Date.
“Intercompany
Accounts”
means
all assets and liabilities, however arising, which are due to any Loan Party
from, which are due from any Loan Party to, or which otherwise arise from any
transaction by any Loan Party with, any Affiliate of such Loan
Party.
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“Interest
Election Request”
shall
mean a request by a Borrower to convert or continue a Revolving Facility
Borrowing in accordance with Section 2.07.
“Interest
Expense”
shall
mean, with respect to any person for any period, the sum of (a) gross interest
expense of such person for such period on a consolidated basis, including (i)
the amortization of debt discounts, (ii) the amortization of all fees (including
fees with respect to Swap Agreements) payable in connection with the incurrence
of Indebtedness to the extent included in interest expense, (iii) the portion
of
any payments or accruals with respect to Capital Lease Obligations allocable
to
interest expense and (iv) net payments and receipts (if any) pursuant to
interest rate Hedging Obligations, and (b) capitalized interest of such person.
For purposes of the foregoing, gross interest expense shall be determined after
giving effect to any net payments made or received and costs incurred by the
Company and the Subsidiaries with respect to Swap Agreements.
“Interest
Payment Date”
shall
mean, (a) with respect to any Eurocurrency Loan, the last day of each Interest
Period applicable to the Borrowing of which such Loan is a part and, in the
case
of a Eurocurrency Borrowing with an Interest Period of more than three months’
duration, each day that would have been an Interest Payment Date had successive
Interest Periods of three months’ duration been applicable to such Borrowing
and, in addition, the date of any refinancing or conversion of such Borrowing
with or to a Borrowing of a different Type, (b) with respect to any ABR Loan,
the last Business Day of each calendar quarter and (c) with respect to any
Swingline Loan or Agent Advance, the last Business Day of each calendar month
and on the Revolving Facility Maturity Date or, if earlier, on the date on
which
the Revolving Facility Commitments of all the Lenders shall be terminated as
provided herein.
“Interest
Period”
shall
mean, as to any Eurocurrency Borrowing, the period commencing on the date of
such Borrowing or on the last day of the immediately preceding Interest Period
applicable to such Borrowing, as applicable, and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the
last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter (or 9 or
12
months, if at the time of the relevant Borrowing, all Lenders make interest
periods of such length available), as the Borrowers may elect, or the date
any
Eurocurrency Borrowing is converted to an ABR Borrowing in accordance with
Section 2.07 or repaid or prepaid in accordance with Section 2.09,
2.10 or 2.11; provided,
however,
that if
any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
“Inventory”
means,
with respect to a person, all of such person’s now owned and hereafter acquired
inventory, as defined in the UCC, goods, and merchandise, wherever located,
in
each case to be furnished under any contract of service or held for sale or
lease, all returned goods, raw materials, work-in-process, finished goods
(including embedded software), other materials, and supplies of any kind,
nature, or description which are used or consumed in such person’s business or
used in connection with the packing, shipping, advertising, selling, or
finishing of such goods, merchandise, and other property, and all documents
of
title or other documents representing them.
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“Investment”
shall
have the meaning assigned to such term in Section 6.04.
“Issuing
Bank”
shall
mean Bank of America, Credit Suisse, Deutsche Bank AG New York Branch and each
other Issuing Bank designated pursuant to Section 2.05(k), in each case in
its capacity as an issuer of Letters of Credit hereunder, and its successors
in
such capacity as provided in Section 2.05(i). An Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by Affiliates
of such Issuing Bank, in which case the term “Issuing Bank” shall include any
such Affiliate with respect to Letters of Credit issued by such
Affiliate.
“Issuing
Bank Fees”
shall
have the meaning assigned to such term in Section 2.12(b).
“Joint
Lead Arrangers”
shall
mean Banc of America Securities LLC and Xxxxxxx Xxxxx Credit Partners L.P.,
in
their capacities as joint lead arrangers.
“Judgment
Currency”
shall
have the meaning assigned to such term in Section 9.19.
“Junior
Financing”
shall
have the meaning assigned to such term in Section 6.09(b).
“L/C
-
BA Disbursement”
shall
mean (i) a payment or disbursement made by an Issuing Bank pursuant to a Letter
of Credit (other than an Acceptance Credit) or (ii) a payment of a Bankers’
Acceptance upon presentation.
“L/C
-
BA Participation Fee”
shall
have the meaning assigned such term in Section 2.12(b).
“Lender”
shall
mean each financial institution listed on Schedule 2.01,
as well
as any person that becomes a “Lender” hereunder pursuant to Section 9.04.
For the avoidance of doubt, the term “Lender” includes the Swingline Lender and,
with respect to any Agent Advances, the Administrative Agent.
“Lender
Default”
shall
mean (i) the refusal (which has not been retracted) of a Lender to make
available its portion of any Borrowing, to acquire participations in a Swingline
Loan or Agent Advance pursuant to Section 2.04 or to fund its portion of
any unreimbursed payment under Section 2.05(e), or (ii) a Lender having
notified the Company and/or the Administrative Agent in writing that it does
not
intend to comply with its obligations under Section 2.04, 2.05 or
2.06.
“Lending
Office”
shall
mean, as to any Lender, the applicable branch, office or Affiliate of such
Lender designated by such Lender to make Loans.
“Letter
of Credit”
shall
mean any letter of credit and any bank guarantee issued pursuant to
Section 2.05, including any Acceptance Credit and any Alternate Currency
Letter of Credit. Each Existing Letter of Credit shall be deemed to constitute
a
Letter of Credit issued hereunder on the Closing Date for all purposes of the
Loan Documents.
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“Letter
of Credit Commitment”
shall
mean, with respect to each Issuing Bank, the commitment of such Issuing Bank
to
issue Letters of Credit pursuant to Section
2.05.
“Letter
of Credit Sublimit”
shall
mean the aggregate Letter of Credit Commitments of the Issuing Banks, in an
amount not to exceed $100 million (or the equivalent thereof in an Alternate
Currency).
“LIBO
Rate”
shall
mean, with respect to any Eurocurrency Borrowing for any Interest Period, the
rate per annum equal to the British Bankers Association LIBOR Rate
(“BBA
LIBOR”),
as
published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time
to
time) at approximately 11:00 a.m., London time, two Business Days prior to
the
commencement of such Interest Period, for Dollar deposits (for delivery on
the
first day of such Interest Period) with a term equivalent to such Interest
Period; provided,
that if
such rate is not available at such time for any reason, then the “LIBO Rate” for
such Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery
on
the first day of such Interest Period in same day funds in the approximate
amount of the Eurocurrency Loan being made, continued or converted by Bank
of
America and with a term equivalent to such Interest Period would be offered
by
Bank of America’s London Branch to major banks in the London interbank
eurodollar market at their request at approximately 11:00 a.m. (London time)
two
Business Days prior to the commencement of such Interest Period.
“Lien”
shall
mean, with respect to any asset, (a) any mortgage, deed of trust, lien,
hypothecation, pledge, charge, security interest or similar encumbrance in
or on
such asset and (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset, provided, that in no event shall an operating lease
or
an agreement to sell be deemed to constitute a Lien.
“Loan
Account”
shall
mean the loan account of the Borrowers, which account shall be maintained by
the
Administrative Agent.
“Loan
Documents”
shall
mean this Agreement, the Letters of Credit, the Security Documents, the
Intercreditor Agreement, the Senior Lender Intercreditor Agreement and any
Note
issued under Section 2.09(e), and solely for the purposes of Sections 4.02
and 7.01 hereof, the Fee Letter.
“Loan
Parties”
shall
mean Holdings, the Borrowers and the Subsidiary Loan Parties.
“Loans”
shall
mean the Revolving Loans, the Swingline Loans and the Agent
Advances.
“Local
Time”
shall
mean New York City time.
“Management
Group”
means
the group consisting of the directors, executive officers and other management
personnel of the Company, Holdings and their Subsidiaries, as the case may
be,
on the Closing Date together with (a) any new directors whose election by
such
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boards
of
directors or whose nomination for election by the shareholders of the Company
or
Holdings, as the case may be, was approved by a vote of a majority of the
directors of the Company or Holdings, as the case may be, then still in office
who were either directors on the Closing Date or whose election or nomination
was previously so approved and (b) executive officers and other management
personnel of the Company or Holdings and their Subsidiaries, as the case may
be,
hired at a time when the directors on the Closing Date together with the
directors so approved constituted a majority of the directors of the Company
or
Holdings, as the case may be.
“Margin
Stock”
shall
have the meaning assigned to such term in Regulation U.
“Material
Adverse Effect”
shall
mean a material adverse effect on the business, property, operations or
condition of the Company and its Subsidiaries, taken as a whole, or the validity
or enforceability of any of the material Loan Documents or the rights and
remedies of the Administrative Agent and the Lenders thereunder.
“Material
Indebtedness”
shall
mean Indebtedness (other than Loans and Letters of Credit) of any one or more
of
the Company or any Subsidiary in an aggregate principal amount exceeding $35
million.
“Material
Subsidiary”
shall
mean any Subsidiary other than an Immaterial Subsidiary.
“Maximum
Rate”
shall
have the meaning assigned to such term in Section 9.09.
“Merger
Agreement”
shall
have the meaning assigned to such term in the recitals hereto.
“Merger
Documents”
shall
mean the collective reference to the Merger Agreement, all material exhibits
and
schedules thereto and all agreements expressly contemplated
thereby.
“Xxxxx’x”
shall
mean Xxxxx’x Investors Service, Inc.
“Mortgaged
Properties”
shall
mean the Real Properties owned in fee by the Loan Parties that are set forth
on
Schedule 1.01(c)
and each
additional Real Property encumbered by a Mortgage pursuant to
Section 5.10.
“Mortgages”
shall
mean the mortgages, trust deeds, deeds of trust, deeds to secure debt,
assignments of leases and rents, and other security documents delivered with
respect to Mortgaged Properties, each in form and substance reasonably
satisfactory to the Administrative Agent and the Company, as amended,
supplemented or otherwise modified from time to time. For the avoidance of
doubt, Mortgages may include mortgages delivered under the Existing Credit
Agreement to the extent amended to be in a form otherwise satisfactory to the
Administrative Agent.
“Multiemployer
Plan”
shall
mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to
which the Company, Holdings or any Subsidiary or any ERISA
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Affiliate
(other than one considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Code Section 414) is making or accruing an
obligation to make contributions, or has within any of the preceding six plan
years made or accrued an obligation to make contributions.
“Net
Amount of Eligible Accounts”
means,
at any time, the gross amount of Eligible Accounts less sales, excise, or
similar taxes, and less returns, discounts, claims, credits, and allowances
of
any nature at any time issued, owing, granted, outstanding, available, or
claimed (in each case without duplication, whether of the exclusionary criteria
set forth in the definition of Eligible Accounts, of any Reserve, or
otherwise).
“Net
Income”
shall
mean, with respect to any person, the net income (loss) of such person,
determined in accordance with GAAP and before any reduction in respect of
preferred stock dividends.
“Net
Proceeds”
shall
mean:
(a) 100%
of
the cash proceeds actually received by the Company or any Subsidiary Loan Party
(including any cash payments received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise and including casualty insurance settlements and
condemnation awards, but only as and when received) from any Asset Sale (other
than those pursuant to Section 6.05(a), (b), (c), (d) (except as contemplated
by
Section 6.03(b)), (e), (f), (h), (i) or (j)), net of (i) attorneys’ fees,
accountants’ fees, investment banking fees, survey costs, title insurance
premiums, and related search and recording charges, transfer taxes, deed or
mortgage recording taxes, required debt payments and required payments of other
obligations relating to the applicable asset to the extent such debt or
obligations are secured by a Lien permitted hereunder (other than pursuant
to
the Loan Documents or the Term Loan Documents) on such asset, other customary
expenses and brokerage, consultant and other customary fees actually incurred
in
connection therewith, (ii) Taxes paid or payable as a result thereof, and (iii)
the amount of any reasonable reserve established in accordance with GAAP against
any adjustment to the sale price or any liabilities (other than any taxes
deducted pursuant to clause (i) above) (x) related to any of the applicable
assets and (y) retained by the Company or any of the Subsidiaries including,
without limitation, pension and other post-employment benefit liabilities and
liabilities related to environmental matters or against any indemnification
obligations (however, the amount of any subsequent reduction of such reserve
(other than in connection with a payment in respect of any such liability)
shall
be deemed to be Net Proceeds of such Asset Sale occurring on the date of such
reduction); provided,
that,
if no Event of Default exists and the Company shall deliver a certificate of
a
Responsible Officer of the Company to the Administrative Agent promptly
following receipt of any such proceeds setting forth the Company’s intention to
use any portion of such proceeds, to acquire, maintain, develop, construct,
improve, upgrade or repair assets useful in the business of the Company and
the
Subsidiaries or to make investments in Permitted Business Acquisitions, in
each
case within 15 months of such receipt, such portion of such proceeds shall
not
constitute Net Proceeds except to the extent not, within 15 months of such
receipt, so used or contractually committed to be so used (it being
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understood
that if any portion of such proceeds are not so used within such 15-month period
but within such 15-month period are contractually committed to be used, then
upon the termination of such contract, such remaining portion shall constitute
Net Proceeds as of the date of such termination or expiry without giving effect
to this proviso); provided,
further,
that
(A) no proceeds realized in a single transaction or series of related
transactions shall constitute Net Proceeds unless such proceeds shall exceed
$5.0 million, (B) no proceeds shall constitute Net Proceeds in any fiscal year
until the aggregate amount of all such proceeds in such fiscal year shall exceed
$10.0 million,
(C) at any time during the 15-month period contemplated by the immediately
preceding proviso above, if, on a Pro Forma Basis after giving effect to the
Asset Sale and the application of the proceeds thereof, the Total Net First
Lien
Leverage Ratio is less than or equal to 2.00 to 1.00, up to $100 million of
such
proceeds shall not constitute Net Proceeds, and
(b) 100%
of
the cash proceeds from the incurrence, issuance or sale by the Borrowers or
any
Subsidiary Loan Party of any Indebtedness (other than Excluded Indebtedness),
net of all taxes and fees (including investment banking fees), commissions,
costs and other expenses, in each case incurred in connection with such issuance
or sale.
For
purposes of calculating the amount of Net Proceeds, fees, commissions and other
costs and expenses payable to the Company or any Affiliate of the Company shall
be disregarded, except for financial advisory fees customary in type and amount
paid to Affiliates of the Funds and otherwise not prohibited from being paid
hereunder.
“New
York Courts”
shall
have the meaning assigned to such term in Section 9.15(a).
“Newly
Obligated Party”
means
each person, if any, who becomes party to this Agreement as a Loan Party
effective as of any date after the Closing Date.
“Non-Consenting
Lender”
shall
have the meaning assigned to such term in Section 2.19(c).
“Note”
shall
have the meaning assigned to such term in Section 2.09(e).
“Obligations”
shall
mean all amounts owing to the Administrative Agent or any Lender pursuant to
the
terms of this Agreement or any other Loan Document.
“Orderly
Liquidation Value”
means
an amount equal to the most recently determined Orderly Liquidation Value Factor
multiplied by the book value of all Eligible Inventory of the Loan
Parties.
“Orderly
Liquidation Value Factor”
means,
with respect to Eligible Inventory of the Loan Parties, the net orderly
liquidation value thereof (expressed as a percentage) as determined by an
Acceptable Appraiser in accordance with Section 5.12; provided,
that
the Orderly Liquidation Value Factor as of the Closing Date shall be 75% until
otherwise determined in accordance with Section 5.12.
Amended
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“Original
Agreement Date”
shall
mean February 16, 2006 in respect of the subsidiaries of Covalence Holdings
prior to the Closing Date, shall mean September 20, 2006 in respect of
subsidiaries of Xxxxx Holdings prior to the Closing Date, and shall mean the
Closing Date in respect of subsidiaries of Holdings that were not subsidiaries
of Covalence Holdings or Xxxxx Holdings prior to the Closing Date.
“Other
Taxes”
shall
mean any and all present or future stamp or documentary taxes or any other
excise, transfer, sales, property, intangible, mortgage recording, or similar
taxes, charges or levies arising from any payment made hereunder or from the
execution, delivery or enforcement of, or otherwise with respect to, the Loan
Documents, and any and all interest and penalties related thereto (but not
Excluded Taxes).
“Overdraft
Line”
shall
have the meaning assigned to such term in Section 6.01(w).
“Parent
Entity”
means
any direct or indirect parent of Holdings.
“Participant”
shall
have the meaning assigned to such term in Section 9.04(c)(i).
“Participating
Member State”
means
each state so described in any EMU Legislation.
“Payment
Account”
means
each bank account established or maintained pursuant to Section
5.15,
to
which the funds of the Borrowers and their Subsidiaries (including proceeds
of
Accounts and other Collateral) are deposited or credited, and which is
maintained in the name of the Collateral Agent or any Loan Party, or any of
them, as the Collateral Agent may determine, on terms acceptable to the
Collateral Agent.
“Pending
Revolving Loans”
means,
at any time, the aggregate principal amount of all Revolving Loans, Swingline
Loans and Agent Advances requested in any Borrowing Request received by the
Administrative Agent or otherwise which have not yet been advanced.
“PBGC”
shall
mean the Pension Benefit Guaranty Corporation referred to and defined in
ERISA.
“Perfection
Certificate”
shall
mean the Perfection Certificate with respect to Company and the other Loan
Parties in a form reasonably satisfactory to the Administrative
Agent.
“Permitted
Business Acquisition”
shall
mean any acquisition of all or substantially all the assets of, or all the
Equity Interests (other than directors’ qualifying shares) in, or merger or
consolidation with, a person or division or line of business of a person (or
any
subsequent investment made in a person, division or line of business previously
acquired in a Permitted Business Acquisition), if immediately after giving
effect thereto: (i) no Event of Default shall have occurred and be continuing
or
would result therefrom; (ii) all transactions related thereto shall be
consummated in accordance with applicable laws; (iii) with respect to any such
acquisition or investment with a fair market value in excess of $20.0 million,
the Company and its Subsidiaries shall be in Pro Forma Compliance after giving
effect to such acquisition or
Amended
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investment
and any related transaction; (iv) any acquired or newly formed Subsidiary shall
not be liable for any Indebtedness except for Indebtedness permitted by Section
6.01; (v) to the extent required by Section 5.10, any person acquired in such
acquisition, if acquired by a Borrower or a Domestic Subsidiary, shall be merged
into a Borrower or a Subsidiary Loan Party or become upon consummation of such
acquisition a Subsidiary Loan Party; and (vi) the aggregate amount of such
acquisitions and investments in assets that are not owned by the Borrowers
or
Subsidiary Loan Parties or in Equity Interests in persons that are not
Subsidiary Loan Parties or persons that do not become Subsidiary Loan Parties
upon consummation of such acquisition shall not exceed the greater (x) 4.5%
of
Consolidated Total Assets as of the end of the fiscal quarter immediately prior
to the date of such acquisition or investment for which financial statements
have been delivered pursuant to Section 5.04 and (y) $150 million.
“Permitted
Cure Securities”
shall
mean any equity securities of Holdings other than Disqualified Stock and upon
which all dividends or distributions (if any) shall, prior to 91 days after
the
Revolving Facility Maturity Date, be payable solely in additional shares of
such
equity security.
“Permitted
Holder”
shall
mean each of (i) the Funds and the Fund Affiliates, and (ii) the Management
Group.
“Permitted
Investments”
shall
mean:
(a)direct
obligations of the United States of America or any member of the European Union
or any agency thereof or obligations guaranteed by the United States of America
or any member of the European Union or any agency thereof, in each case with
maturities not exceeding two years;
(b)time
deposit accounts, certificates of deposit and money market deposits maturing
within 180 days of the date of acquisition thereof issued by a bank or trust
company that is organized under the laws of the United States of America, any
state thereof or any foreign country recognized by the United States of America
having capital, surplus and undivided profits in excess of $250 million and
whose long-term debt, or whose parent holding company’s long-term debt, is rated
A (or such similar equivalent rating or higher by at least one nationally
recognized statistical rating organization (as defined in Rule 436 under
the Securities Act));
(c)repurchase
obligations with a term of not more than 180 days for underlying securities
of
the types described in clause (a) above entered into with a bank meeting
the qualifications described in clause (b) above;
(d)commercial
paper, maturing not more than one year after the date of acquisition, issued
by
a corporation (other than an Affiliate of any Borrower) organized and in
existence under the laws of the United States of America or any foreign country
recognized by the United States of America with a rating at the time as of
which
any investment therein is made of P-1 (or higher) according to Moody’s, or A-1
(or higher) according to S&P;
Amended
and Restated Revolving Credit Agreement
-44-
(e)securities
with maturities of two years or less from the date of acquisition issued or
fully guaranteed by any State, commonwealth or territory of the United States
of
America, or by any political subdivision or taxing authority thereof, and rated
at least A by S&P or A by Xxxxx’x;
(f)shares
of
mutual funds whose investment guidelines restrict 95% of such funds’ investments
to those satisfying the provisions of clauses (a) through (e)
above;
(g)money
market funds that (i) comply with the criteria set forth in Rule 2a-7 under
the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by
Moody’s and (iii) have portfolio assets of at least $5,000.0 million;
and
(h)time
deposit accounts, certificates of deposit and money market deposits in an
aggregate face amount not in excess of 0.5% of the total assets of the Company
and the Subsidiaries, on a consolidated basis, as of the end of the Company’s
most recently completed fiscal year; and
(i)instruments
equivalent to those referred to in clauses (a) through (h) above denominated
in
any foreign currency comparable in credit quality and tenor to those referred
to
above and commonly used by corporations for cash management purposes in any
jurisdiction outside the United States to the extent reasonably required in
connection with any business conducted by any Subsidiary organized in such
jurisdiction.
“Permitted
Liens”
shall
have the meaning assigned to such term in Section 6.02.
“Permitted
Refinancing Indebtedness”
shall
mean any Indebtedness issued in exchange for, or the net proceeds of which
are
used to extend, refinance, renew, replace, defease or refund (collectively,
to
“Refinance”),
the
Indebtedness being Refinanced (or previous refinancings thereof constituting
Permitted Refinancing Indebtedness); provided,
that
(a) the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted
value, if applicable) of the Indebtedness so Refinanced (plus unpaid accrued
interest and premium thereon and underwriting discounts, fees, commissions
and
expenses), (b) except with respect to Section 6.01(i), the weighted average
life
to maturity of such Permitted Refinancing Indebtedness is greater than or equal
to the earlier of (i) the weighted average life to maturity of the Indebtedness
being Refinanced and (ii) 90 days after the Revolving Facility Maturity Date,
(c) if the Indebtedness being Refinanced is subordinated in right of payment
to
the Obligations under this Agreement, such Permitted Refinancing Indebtedness
shall be subordinated in right of payment to such Obligations on terms at least
as favorable to the Lenders as those contained in the documentation governing
the Indebtedness being Refinanced, (d) no Permitted Refinancing Indebtedness
shall have different obligors, or greater guarantees or security, than the
Indebtedness being Refinanced and (e) if the Indebtedness being Refinanced
is
secured by any collateral (whether equally and ratably with, or junior to,
the
Secured Parties or otherwise), such Permitted Refinancing Indebtedness may
be
secured by such collateral (including in respect of working capital facilities
of Foreign Subsidiaries otherwise permitted under this Agreement only, any
collateral pursuant to after-acquired property clauses to the extent any such
collateral secured the Indebtedness being Refinanced) on terms no less favorable
to the Secured Parties than those contained in the
Amended
and Restated Revolving Credit Agreement
-45-
documentation
governing the Indebtedness being Refinanced; provided further,
that
with respect to a Refinancing of (x) the Senior Subordinated Notes or other
subordinated Indebtedness permitted to be incurred herein, such Permitted
Refinancing Indebtedness shall (i) be subordinated to the guarantee by Holdings
and the Subsidiary Loan Parties of the Revolving Facility, and (ii) be otherwise
on terms not materially less favorable to the Lenders than those contained
in
the documentation governing the Indebtedness being refinanced and (y) the Second
Lien Notes, (i) the Liens, if any, securing such Permitted Refinancing
Indebtedness shall be subject to an intercreditor agreement that is
substantially consistent with and no less favorable to the Lenders in all
material respects than the Intercreditor Agreement and (ii) such Permitted
Refinancing Indebtedness shall be otherwise on terms not materially less
favorable to the Lenders than those contained in the documentation governing
the
Indebtedness being Refinanced.
“person”
shall
mean any natural person, corporation, business trust, joint venture,
association, company, partnership, limited liability company or government,
individual or family trusts, or any agency or political subdivision
thereof.
“Plan”
shall
mean any employee pension benefit plan, as such term is defined in Section
3(2)
of ERISA, (other than a Multiemployer Plan), (i) subject to the provisions
of
Title IV of ERISA, (ii) sponsored or maintained (at the time of determination
or
at any time within the five years prior thereto) by Holdings, the Company or
any
ERISA Affiliate, or (iii) in respect of which Holdings, the Company, any
Subsidiary or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an “employer” as defined in
Section 3(5) of ERISA.
“Platform”
shall
have the meaning assigned to such term in Section 9.17(b).
“Pledged
Collateral”
shall
have the meaning assigned to such term in the Collateral Agreement.
“Post-Closing
Reports”
shall
mean field exam reports and appraisals with respect to the Accounts and
Inventory of the Loan Parties, in each case in form customary for financings
similar to this Agreement.
Amended
and Restated Revolving Credit Agreement
-46-
“Pricing
Grid”
shall
mean, with respect to the Revolving Loans, the table set forth below:
Level
|
Quarterly
Average Daily Availability
(as
a percentage of the Borrowing Base)
|
Applicable
Margin for ABR Loans
|
Applicable
Margin for Eurocurrency Loans
|
I
|
Less
than or equal to 25%
|
0.00%
|
1.75%
|
II
|
More
than 25% but less than or equal to 50%
|
0.00%
|
1.50%
|
III
|
More
than 50% but less than or equal to 75%
|
0.00%
|
1.25%
|
IV
|
More
than 75%
|
0.00%
|
1.00%
|
For
the
purposes of the Pricing Grid, changes in the Applicable Margin shall become
effective on the first Business Day of each calendar quarter (to be effective
from such date until changed pursuant to the Pricing Grid), and shall be
determined in accordance with the Pricing Grid based on average daily
Availability during the immediately preceding fiscal quarter.
“primary
obligor”
shall
have the meaning given such term in the definition of the term
“Guarantee.”
“Primary
Payment Account”
shall
have the meaning assigned to such term in Section 5.15(a).
“Pro
Forma Adjusted EBITDA”
shall
have the meaning assigned to such term in Section 3.05.
“Pro
Forma Basis”
shall
mean, as to any person, for any events as described below that occur subsequent
to the commencement of a period for which the financial effect of such events
is
being calculated, and giving effect to the events for which such calculation
is
being made, such calculation as will give pro forma effect to such events as
if
such events occurred on the first day of the four consecutive fiscal quarter
period ended on or before the occurrence of such event (the “Reference
Period”):
(i)
in making any determination of EBITDA, effect shall be given to any Asset Sale,
any acquisition (or any similar transaction or transactions not otherwise
permitted under Section 6.04 or 6.05 that require a waiver or consent of the
Required Lenders and such waiver or consent has been obtained), any dividend,
distribution or other similar payment, any designation of any Subsidiary as
an
Unrestricted Subsidiary and any Subsidiary Redesignation, the Initial Pro Forma
Adjustment for the quarters ending March 2006,
Amended
and Restated Revolving Credit Agreement
-47-
June
2006, September 2006, and December 2006, and any restructurings of the business
of the Company or any of its Subsidiaries that are expected to have a continuing
impact and are factually supportable, which would include cost savings resulting
from head count reduction, closure of facilities and similar operational and
other cost savings, which adjustments the Company determines are reasonable
as
set forth in a certificate of a Financial Officer of the Company (the foregoing,
together with any transactions related thereto or in connection therewith,
the
“relevant
transactions”),
in
each case that occurred during the Reference Period (or, in the case of
determinations made pursuant to the definition of the term “Permitted Business
Acquisition” or pursuant to Sections, 6.01(r), 6.02(u) or 6.06(e), occurring
during the Reference Period or thereafter and through and including the date
upon which the respective Permitted Business Acquisition or incurrence of
Indebtedness or Liens, Asset Sale, or dividend is consummated), (ii) in making
any determination on a Pro Forma Basis, (x) all Indebtedness (including
Indebtedness issued, incurred or assumed as a result of, or to finance, any
relevant transactions and for which the financial effect is being calculated,
whether incurred under this Agreement or otherwise, but excluding normal
fluctuations in revolving Indebtedness incurred for working capital purposes,
in
each case not to finance any acquisition) issued, incurred, assumed or
permanently repaid during the Reference Period (or, in the case of
determinations made pursuant to the definition of the term “Permitted Business
Acquisition” or pursuant to Sections 6.01(r), 6.02(u) or 6.06(e), occurring
during the Reference Period or thereafter and through and including the date
upon which the respective Permitted Business Acquisition or incurrence of
Indebtedness or Liens, Asset Sale, or dividend is consummated) shall be deemed
to have been issued, incurred, assumed or permanently repaid at the beginning
of
such period and (y) Interest Expense of such person attributable to interest
on
any Indebtedness, for which pro forma effect is being given as provided in
preceding clause (x) (A) bearing floating interest rates shall be computed
on a
pro forma basis as if the rate in effect on the date of such calculation had
been the applicable rate for the entire period (taking into account any Hedging
Obligations applicable to such Indebtedness if such Hedging Obligation has
a
remaining term in excess of 12 months), and (B) in respect of a Capital Lease
Obligation shall be deemed to accrue at an interest rate reasonably determined
by a responsible financial or accounting officer of the Company to be the rate
of interest implicit in such Capital Lease Obligation in accordance with GAAP;
and (iii) (A) any Subsidiary Redesignation then being designated, effect shall
be given to such Subsidiary Redesignation and all other Subsidiary
Redesignations after the first day of the relevant Reference Period and on
or
prior to the date of the respective Subsidiary Redesignation then being
designated, collectively, and (B) any designation of a Subsidiary as an
Unrestricted Subsidiary, effect shall be given to such designation and all
other
designations of Subsidiaries as Unrestricted Subsidiaries after the first day
of
the relevant Reference Period and on or prior to the date of the then applicable
designation of a Subsidiary as an Unrestricted Subsidiary,
collectively.
Calculations
made pursuant to the definition of the term “Pro Forma Basis” shall be
determined in good faith by a Responsible Officer of the Company and may include
adjustments to reflect (1) operating expense reductions and other operating
improvements or synergies reasonably expected to result from such relevant
transaction, which adjustments are reasonably anticipated by the Company to
be
realizable in connection with such relevant transaction (or any similar
transaction or transactions made in compliance with this Agreement or that
require a waiver or consent of the Required Lenders), and are estimated on
a
good faith basis by the Company, and (2) all adjustments reflected in the Pro
Forma Financial Statements
Amended
and Restated Revolving Credit Agreement
-48-
and
Pro
Forma Adjusted EBITDA to the extent such adjustments, without duplication,
continue to be applicable. The Company shall deliver to the Administrative
Agent
a certificate of a Financial Officer of the Company setting forth such
demonstrable or additional operating expense reductions and other operating
improvements or synergies and information and calculations supporting them
in
reasonable detail.
“Pro
Forma Compliance”
shall
mean, at any date of determination, that (a) either (i) the Availability is
equal to or greater than $100 million immediately before and after giving effect
to the relevant transactions (including the assumption, issuance, incurrence
and
repayment of Indebtedness), or (ii)(A) the Company and its Subsidiaries shall
be
in compliance, on a Pro Forma Basis after giving effect on a Pro Forma Basis
to
the relevant transactions, with an ABL Fixed Charge Coverage Ratio of at least
1:00 to 1:00 recomputed as at the last day of the most recently ended fiscal
quarter of the Company and its Subsidiaries for which the financial statements
and certificates required pursuant to Section 5.04 have been delivered, and
(B)
the Availability on a Pro Forma Basis is at least $60 million immediately before
and after giving effect to the relevant transactions; and (b) and the Borrowers
shall have delivered to the Administrative Agent a certificate of a Responsible
Officer of the Borrowers to such effect, together with all relevant financial
information.
“Pro
Forma Financial Statements”
shall
have the meaning assigned to such term in Section 3.05(a).
“Pro
Rata Share”
means,
with respect to a Lender, a fraction (expressed as a percentage), the numerator
of which is the amount of such Lender’s Revolving Facility Commitment and the
denominator of which is the sum of the amounts of all of the Lenders’ Revolving
Facility Commitments, or if no Revolving Facility Commitments are outstanding,
a
fraction (expressed as a percentage), the numerator of which is the principal
amount of Obligations owed to such Lender and the denominator of which is the
aggregate principal amount of the Obligations owed to the Lenders, in each
case
giving effect to a Lender’s participation in Swingline Loans and Agent
Advances.
“Projections”
shall
mean the projections of Holdings, the Company and the Subsidiaries included
in
the Information Memorandum and any other projections and any forward-looking
statements (including statements with respect to booked business) of such
entities furnished to the Lenders or the Administrative Agent by or on behalf
of
Holdings, the Company or any of the Subsidiaries prior to the Closing
Date.
“Proprietary
Rights”
means,
with respect to a person, all of such person’s now owned and hereafter arising
or acquired licenses, franchises, permits, patents, patent rights, copyrights,
works which are the subject matter of copyrights, trademarks, service marks,
trade names, trade styles, patent, trademark and service xxxx applications,
and
all licenses and rights related to any of the foregoing, and all other rights
under any of the foregoing, all extensions, renewals, reissues, divisions,
continuations, and continuations-in-part of any of the foregoing, and all rights
to xxx for past, present, and future infringement of any of the
foregoing.
“Public
Lender”
shall
have the meaning assigned to such term in Section 9.17.
Amended
and Restated Revolving Credit Agreement
-49-
“Qualified
CFC Holding Company”
shall
mean a Wholly Owned Subsidiary of the Company that is a limited liability
company, that (a)
is in
compliance with Section 6.12 and (b) the primary asset of which consists of
Equity Interests in either (i) a Foreign Subsidiary or (ii) a limited liability
company that is in compliance with Section 6.12 and the primary asset of which
consists of Equity Interests in a Foreign Subsidiary.
“Qualified
Equity Interests”
means
any Equity Interest other than Disqualified Stock.
“Qualified
IPO”
shall
mean an underwritten public offering of the Equity Interests of Holdings (or
any
Parent Entity) which generates cash proceeds of at least $50
million.
“Real
Property”
means,
collectively, all right, title and interest (including any leasehold estate)
in
and to any and all parcels of or interests in real property owned in fee or
leased by any Loan Party, together with, in each case, all easements,
hereditaments and appurtenances relating thereto, all improvements and
appurtenant fixtures incidental to the ownership or lease thereof.
“Reasonable
Credit Judgment”
means
reasonable credit judgment in accordance with customary business practices
for
comparable asset-based lending transactions and as it relates to the
establishment of Reserves or the adjustment or imposition of exclusionary
criteria shall require that, (x) such establishment, adjustment or imposition
after the Closing Date be based on the analysis of facts or events relating
to
the Accounts, Inventory or other components of the Borrowing Base first
occurring or first discovered by the Administrative Agent after the Closing
Date
or that are materially different from facts or events occurring or known to
the
Administrative Agent on the Closing Date, (y) the contributing factors to the
imposition of any Reserve shall not duplicate (i) the exclusionary criteria
set
forth in definitions of “Eligible Accounts” and “Eligible Inventory”, as
applicable (and vice versa) or (ii) any reserves deducted in computing book
value and (z) the amount of any such Reserve so established or the effect of
any
adjustment or imposition of exclusionary criteria be a reasonable quantification
of the incremental dilution of the Borrowing Base attributable to such
contributing factors.
“Reference
Period”
shall
have the meaning assigned to such term in the definition of the term “Pro Forma
Basis.”
“Refinance”
shall
have the meaning assigned to such term in the definition of the term “Permitted
Refinancing Indebtedness,” and “Refinanced”
shall
have a meaning correlative thereto.
“Refinancing”
shall
have the meaning set forth in the recitals hereto.
“Register”
shall
have the meaning assigned to such term in Section 9.04(b).
“Regulation
U”
shall
mean Regulation U of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
“Regulation
X”
shall
mean Regulation X of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
Amended
and Restated Revolving Credit Agreement
-50-
“Related
Fund”
shall
mean, with respect to any Lender that is a fund that invests in bank or
commercial loans and similar extensions of credit, any other fund that invests
in bank or commercial loans and similar extensions of credit and is advised
or
managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity
(or
an Affiliate of such entity) that administers, advises or manages such
Lender.
“Related
Parties”
shall
mean, with respect to any specified person, such person’s Affiliates and the
respective directors, trustees, officers, employees, agents and advisors of
such
person and such person’s Affiliates.
“Related
Sections”
shall
have the meaning assigned to such term in Section 6.04.
“Release”
shall
mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, disposing, depositing,
emanating or migrating in, into, onto or through the environment.
“relevant
transactions”
shall
have the meaning assigned to such term in the definition of “Pro Forma Basis” in
this Section 1.01.
“Remaining
Present Value”
shall
mean, as of any date with respect to any lease, the present value as of such
date of the scheduled future lease payments with respect to such lease,
determined with a discount rate equal to a market rate of interest for such
lease reasonably determined at the time such lease was entered
into.
“Report”
shall
have the meaning assigned to such term in Section 8.12(a).
“Reportable
Event”
shall
mean any reportable event as defined in Section 4043(c) of ERISA or the
regulations issued thereunder, other than those events as to which the 30-day
notice period referred to in Section 4043(c) of ERISA has been waived, with
respect to a Plan (other than a Plan maintained by an ERISA Affiliate that
is
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Section 414 of the Code).
“Required
Lenders”
shall
mean, at any time, Lenders whose Pro Rata Shares aggregate more than fifty
percent (50%). The Pro Rata Share of any Defaulting Lender shall be disregarded
in determining Required Lenders at any time.
“Required
Percentage”
shall
mean, with respect to an Excess Cash Flow Period (or Excess Cash Flow Interim
Period), 50%; provided,
that
(a) if the Total Net First Lien Leverage Ratio at the end of the Applicable
Period (or Excess Cash Flow Interim Period) is greater than 1.50 to 1.00 but
less than or equal to 2.00 to 1.00, such percentage shall be 25%, and
(b) if the Total Net First Lien Leverage Ratio at the end of the Applicable
Period (or Excess Cash Flow Interim Period) is less than or equal to 1.50 to
1.00, such percentage shall be 0%.
“Requirement
of Law”
means,
as to any person, any law (statutory or common), treaty, rule, or regulation
or
determination of an arbitrator or of a Governmental Authority, in each case
applicable to or binding upon the person or any of its property or to which
the
person or any of its property is subject.
Amended
and Restated Revolving Credit Agreement
-51-
“Reserves”
means
such reserves against the Borrowing Base that the Administrative Agent has,
in
the exercise of its Reasonable Credit Judgment, established from time to time
upon at least seven Business Days’ notice to the Company.
“Responsible
Officer”
of
any
person shall mean any executive officer or Financial Officer of such person
and
any other officer or similar official thereof responsible for the administration
of the obligations of such person in respect of this Agreement.
“Retained
Excess Cash Flow Overfunding”
shall
mean, at any time, in respect of any Excess Cash Flow Interim Period as to
which
the corresponding Excess Cash Flow Period has ended at such time, a portion
of
the cumulative Excess Cash Flow for such Excess Cash Flow Interim Period equal
to the amount, if any, by which the Retained Percentage of Excess Cash Flow
for
such Excess Cash Flow Interim Period exceeds the Retained Percentage of Excess
Cash Flow for such corresponding Excess Cash Flow Period.
“Retained
Percentage”
shall
mean, with respect to any Excess Cash Flow Period (or Excess Cash Flow Interim
Period), (a) 100% minus (b) the Required Percentage with respect to such Excess
Cash Flow Period (or Excess Cash Flow Interim Period).
“Revaluation
Date”
means,
with respect to any Alternate Currency Letter of Credit, each of the following:
(i) each date of issuance of an Alternate Currency Letter of Credit,
(ii) each date of an amendment of an Alternate Currency Letter of Credit
having the effect of increasing the amount thereof, (iii) each date of any
payment by the Issuing Bank under an Alternate Currency Letter of Credit, and
(iv) such additional dates as the Administrative Agent or the Issuing Bank
shall
determine or the Required Lenders shall require.
“Revolving
Facility”
shall
mean the Revolving Facility Commitments (including any Incremental Revolving
Facility Commitments) and the extensions of credit made hereunder by the
Revolving Lenders.
“Revolving
Facility Borrowing”
shall
mean a Borrowing comprised of Revolving Loans.
“Revolving
Facility Commitment”
shall
mean, with respect to each Revolving Lender, the commitment of such Revolving
Lender to make Revolving Loans pursuant to Section 2.01, expressed as an
amount representing the maximum aggregate permitted amount of such Revolving
Lender’s Revolving Facility Credit Exposure hereunder, as such commitment may be
(a) reduced from time to time pursuant to Section 2.08, (b) reduced or
increased from time to time pursuant to assignments by or to such Lender under
Section 9.04, and (c) increased or provided under Section 2.21. The initial
amount of each Lender’s Revolving Facility Commitment is set forth on
Schedule
2.01,
or in
the Assignment and Acceptance or Incremental Assumption Agreement pursuant
to
which such Lender shall have assumed its Revolving Facility Commitment (or
Incremental Revolving Facility Commitment), as applicable. The initial aggregate
amount of the Lenders’ Revolving Facility Commitments prior to any Incremental
Revolving Facility Commitments) is $400 million.
“Revolving
Facility Credit Exposure”
shall
mean, at any time, the sum of (a) the aggregate principal amount of the
Revolving Loans outstanding at such time, (b) the aggregate
Amended
and Restated Revolving Credit Agreement
-52-
amount
of
Pending Revolving Loans, (c) the Swingline Exposure and Agent Advance Exposure
at such time and (d) the Revolving L/C - BA Exposure at such time. The Revolving
Facility Credit Exposure of any Revolving Lender at any time shall be the
product of (x) such Revolving Lender’s Pro Rata Share and (y) the aggregate
Revolving Facility Credit Exposure of all Revolving Lenders, collectively,
at
such time.
“Revolving
Facility Maturity Date”
shall
mean April 3, 2013.
“Revolving
Lender”
shall
mean a Lender (including an Incremental Revolving Lender) with a Revolving
Facility Commitment or with outstanding Revolving Loans.
“Revolving
Loan”
shall
mean a Loan made by a Revolving Lender pursuant to
Section 2.01.
“Revolving
L/C - BA Exposure”
shall
mean at any time the sum of (a) the aggregate undrawn amount of all Letters
of
Credit outstanding at such time (calculated, in the case of Alternate Currency
Letters of Credit, based on the Dollar Equivalent thereof), (b) the sum of
the
maximum aggregate amount that is, or at any time thereafter may become, payable
by the Issuing Banks under all then outstanding Bankers’ Acceptances
(calculated, in the case of Alternate Currency Letters of Credit, based on
the
Dollar Equivalent thereof) and (c) the aggregate principal amount of all L/C
-
BA Disbursements that have not yet been reimbursed at such time (calculated,
in
the case of Alternate Currency Letters of Credit, based on the Dollar Equivalent
thereof). The Revolving L/C - BA Exposure of any Revolving Lender at any time
shall mean its Pro Rata Share of the aggregate Revolving L/C - BA Exposure
at
such time. For all purposes of this Agreement, if on any date of determination
a
Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the International Standby
Practices (ISP98), such Letter of Credit shall be deemed to be “outstanding” in
the amount so remaining available to be drawn. Unless otherwise specified
herein, the amount of a Letter of Credit at any time shall be deemed to be
the
stated amount of such Letter of Credit in effect at such time; provided,
that
with respect to any Letter of Credit that, by its terms or the terms of any
document related thereto, provides for one or more automatic increases in the
stated amount thereof, the amount of such Letter of Credit shall be deemed
to be
the maximum stated amount of such Letter of Credit after giving effect to all
such increases, whether or not such maximum stated amount is in effect at such
time.
“S&P”
shall
mean Standard & Poor’s Ratings Group, Inc.
“Sale
and Lease-Back Transaction”
shall
have the meaning assigned to such term in Section 6.03.
“SEC”
shall
mean the Securities and Exchange Commission or any successor
thereto.
“Second
Lien Fixed Rate Notes”
shall
mean the 8⅞% Second Priority Senior Secured Notes due 2014, issued by the
Company pursuant to the Second Lien Notes Indenture and any notes issued in
exchange for, and as contemplated by, the Second Lien Fixed Rate Notes and
the
related registration rights agreement with substantially identical terms as
the
Second Lien Fixed Rate Notes.
Amended
and Restated Revolving Credit Agreement
-53-
“Second
Lien Floating Rate Notes”
shall
mean the floating rate Second Priority Senior Secured Notes due 2014, issued
pursuant to the Second Lien Notes Indenture and any notes issued by the Borrower
in exchange for, and as contemplated by, the Second Lien Floating Rate Notes
and
the related registration rights agreement with substantially identical terms
as
the Second Lien Floating Rate Notes.
“Second
Lien Note Documents”
shall
mean the Second Lien Notes, the Second Lien Notes Indenture and the Second
Lien
Security Documents.
“Second
Lien Notes”
shall
mean the Second Lien Fixed Rate Notes and the Second Lien Floating Rate
Notes.
“Second
Lien Notes Indenture”
shall
mean the Indenture dated as of September
20,
2006
among Xxxxx and certain of its subsidiaries party thereto and the trustee named
therein from time to time, as in effect on the Closing Date and as amended,
restated, supplemented or otherwise modified from time to time in accordance
with the requirements thereof and of this Agreement.
“Second
Lien Security Documents”
shall
mean the “Security Documents” as defined in the Second Lien Notes
Indenture.
“Secured
Parties”
shall
mean the “Secured Parties” as defined in the Collateral Agreement.
“Securities
Act”
shall
mean the Securities Act of 1933, as amended.
“Security
Documents”
shall
mean the Mortgages, the Collateral Agreement, the Foreign Pledge Agreements
and
each of the security agreements and other instruments and documents executed
and
delivered pursuant to any of the foregoing or pursuant to
Section 5.10.
“Senior
Lender Intercreditor Agreement”
shall
mean the Amended and Restated Senior Lender Priority and Intercreditor Agreement
dated as of the date hereof, as amended, supplemented or otherwise modified
from
time to time, among Holdings, the Borrowers, the Subsidiary Loan Parties, each
Subsidiary that becomes a party thereto after the date hereof, the Collateral
Agent, the Administrative Agent, the “Administrative Agent” under the Term Loan
Credit Agreement and the “Collateral Agent” under the Term Loan Credit
Agreement.
“Senior
Subordinated Note Documents”
shall
mean the Covalence Senior Subordinated Note Documents and the Xxxxx Senior
Subordinated Note Documents.
“Senior
Subordinated Notes”
shall
mean the Covalence Senior Subordinated Notes and the Xxxxx Senior Subordinated
Notes.
“Senior
Subordinated Notes Indentures”
shall
mean the Covalence Senior Subordinated Notes Indenture and the Xxxxx Senior
Subordinated Notes Indenture.
“Settlement”
and
“Settlement
Date”
have
the meanings specified in Section 2.04(e).
Amended
and Restated Revolving Credit Agreement
-54-
“Specified
Default”
shall
mean the occurrence of any Event of Default specified in Sections 7.01(b),
(c),
(h) or (i).
“Spot
Rate”
for
a
currency means the rate determined by the Administrative Agent or the Issuing
Bank, as applicable, to be the rate quoted by the person acting in such capacity
as the spot rate for the purchase by such person of such currency with another
currency through its principal foreign exchange trading office at approximately
11:00 a.m. on the date three Business Days prior to the date as of which the
foreign exchange computation is made or if such rate cannot be computed as
of
such date such other rate as the Administrative Agent or the Issuing Bank shall
reasonably determine is appropriate under the circumstances; provided
that the
Administrative Agent or the Issuing Bank may obtain such spot rate from another
financial institution designated by the Administrative Agent or the Issuing
Bank
if the person acting in such capacity does not have as of the date of
determination a spot buying rate for any such currency; and provided
further
that the Issuing Bank may use such spot rate quoted on the date as of which
the
foreign exchange computation is made in the case of any Letter of Credit
denominated in an Alternate Currency.
“Statutory
Reserves”
shall
mean, with respect to any currency, any reserve, liquid asset or similar
requirements established by any Governmental Authority of the United States
of
America or of the jurisdiction of such currency or any jurisdiction in which
Loans in such currency are made to which banks in such jurisdiction are subject
for any category of deposits or liabilities customarily used to fund loans
in
such currency or by reference to which interest rates applicable to Loans in
such currency are determined.
“Subagent”
shall
have the meaning assigned to such term in Section 8.02.
“Subordinated
Intercompany Debt”
shall
have the meaning assigned to such term in Section 6.01(e).
“subsidiary”
shall
mean, with respect to any person (herein referred to as the “parent”), any
corporation, partnership, association or other business entity (a) of which
securities or other ownership interests representing more than 50% of the equity
or more than 50% of the ordinary voting power or more than 50% of the general
partnership interests are, at the time any determination is being made, directly
or indirectly, owned, Controlled or held, or (b) that is, at the time any
determination is made, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of
the
parent.
“Subsidiary”
shall
mean, unless the context otherwise requires, a subsidiary of the Company.
Notwithstanding the foregoing (and except for purposes of Sections 3.09, 3.13,
3.15, 3.16, 5.03, 5.09 and 7.01(k), and the definition of Unrestricted
Subsidiary contained herein), an Unrestricted Subsidiary shall be deemed not
to
be a Subsidiary of the Company or any of its Subsidiaries for purposes of this
Agreement.
“Subsidiary
Loan Party”
shall
mean (a) each Domestic Subsidiary of the Company on the Closing Date and (b)
each Domestic Subsidiary of the Company that becomes, or is required to become,
a party to the Collateral Agreement, the Intercreditor Agreement and the Senior
Lender Intercreditor Agreement after the Closing Date.
Amended
and Restated Revolving Credit Agreement
-55-
“Subsidiary
Redesignation”
shall
have the meaning provided in the definition of “Unrestricted Subsidiary”
contained in this Section 1.01.
“Swap
Agreement”
shall
mean any agreement with respect to any swap, forward, future or derivative
transaction or option or similar agreement involving, or settled by reference
to, one or more rates, currencies, commodities (including, for the avoidance
of
doubt, resin), equity or debt instruments or securities, or economic, financial
or pricing indices or measures of economic, financial or pricing risk or value
or any similar transaction or any combination of these transactions; provided,
that no
phantom stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants
of
Holdings, the Company or any of the Subsidiaries shall be a Swap
Agreement.
“Swingline
Borrowing”
shall
mean a Borrowing comprised of Swingline Loans.
“Swingline
Borrowing Request”
shall
mean a request by a Borrower substantially in the form of Exhibit C-2.
“Swingline
Commitment”
shall
mean, with respect to the Swingline Lender, the commitment of the Swingline
Lender to make Swingline Loans pursuant to Section 2.04. The aggregate
amount of the Swingline Commitments on the Closing Date is $25
million.
“Swingline
Exposure”
shall
mean at any time the aggregate principal amount of all outstanding Swingline
Borrowings at such time. The Swingline Exposure of any Revolving Lender at
any
time shall mean its Pro Rata Share of the aggregate Swingline Exposure at such
time.
“Swingline
Lender”
shall
mean Bank of America in its capacity as a lender of Swingline
Loans.
“Swingline
Loans”
shall
mean the swingline loans made to the Borrowers pursuant to
Section 2.04.
“Syndication
Agent”
shall
have the meaning assigned to such term in the introductory paragraph of this
Agreement.
“Taxes”
shall
mean any and all present or future taxes, levies, imposts, duties (including
stamp duties), deductions, withholdings or similar charges (including
ad
valorem
charges)
imposed by any Governmental Authority and any and all interest and penalties
related thereto.
“Term
Facility Collateral Agent”
shall
have the meaning assigned to such term in the Senior Lender Intercreditor
Agreement.
“Term
Loans”
shall
mean loans made pursuant to and in accordance with the Term Loan Credit
Agreement.
“Term
Loan Credit Agreement”
shall
mean the Second Amended and Restated Term Loan Credit Agreement, dated as of
the
date hereof among Holdings, the Company, the
Amended
and Restated Revolving Credit Agreement
-56-
lenders
and agents party thereto and Credit Suisse, as administrative agent and
collateral agent for such lenders, as amended, restated, supplemented, waived,
replaced, restructured, repaid, refunded, refinanced or otherwise modified
from
time to time, including any agreement or indenture extending the maturity
thereof, refinancing, replacing or otherwise restructuring all or any portion
of
the Indebtedness under such agreement or agreements or indenture or indentures
or increasing the amount loaned thereunder or altering the maturity
thereof.
“Term
Loan Documents”
shall
mean the “Loan Documents” as defined in the Term Loan Credit Agreement.
“Term
Loan Obligations”
shall
mean the “Obligations” as defined in the Term Loan Credit Agreement.
“Term
Loan Secured Parties”
shall
have the meaning assigned to such term in the Senior Lender Intercreditor
Agreement.
“Test
Period”
shall
mean, on any date of determination, the period of four consecutive fiscal
quarters of the Company then most recently ended (taken as one accounting
period).
“Threshold
Amount”
means
10% of the lesser of (i) the Revolving Facility Commitments and (ii) the
Borrowing Base, in each case as of any date of determination.
“Total
Net First Lien Leverage Ratio”
means,
on any date, the ratio of (a) First Lien Debt as of such date to (b) EBITDA
for
the period of four consecutive fiscal quarters of the Company most recently
ended as of such date, all determined on a consolidated basis in accordance
with
GAAP; provided,
that
EBITDA shall be determined for the relevant Test Period on a Pro Forma
Basis.
“Transaction
Documents”
shall
mean the Loan Documents, the Term Loan Credit Agreement and the “Loan Documents”
as defined therein and the Merger Documents.
“Transaction
Expenses”
means
any fees or expenses incurred or paid by the Funds or Fund Affiliates, Holdings,
the Company (or any direct or indirect parent of the Company) or any of its
Subsidiaries in connection with the Transactions, this Agreement and the other
Loan Documents (including expenses in connection with Swap Agreements) and
the
transactions contemplated hereby and thereby.
“Transactions”
shall
mean, collectively, the transactions to occur pursuant to the Transaction
Documents, including (a) the consummation of the Business Combination; (b)
the
execution and delivery of the Loan Documents, the creation or continuation
of
the Liens pursuant to the Security Documents, and the initial borrowings
hereunder; (c) the Refinancing; and (d) the payment of all Transaction
Expenses.
“Type”
shall
mean, when used in respect of any Loan or Borrowing, the Rate by reference
to
which interest on such Loan or on the Loans comprising such Borrowing
is
Amended
and Restated Revolving Credit Agreement
-57-
determined.
For purposes hereof, the term “Rate”
shall
include the Adjusted LIBO Rate and the ABR.
“UFCA”
shall
have the meaning assigned to such term in Section 9.22.
“UFTA”
shall
have the meaning assigned to such term in Section 9.22.
“Unfunded
Pension Liability”
means
the excess of a Plan’s benefit liabilities under Section 4001(a)(16) of ERISA,
over the current value of that Plan’s assets, determined in accordance with the
assumptions used for funding the Plan pursuant to Section 412 of the Code for
the applicable plan year.
“Uniform
Commercial Code”
or
“UCC”
means
the Uniform Commercial Code as the same may from time to time be in effect
in
the State of New York or the Uniform Commercial Code (or similar code or
statute) of another jurisdiction, to the extent it may be required to apply
to
any item or items of Collateral.
“Unrestricted
Cash”
shall
mean domestic cash or cash equivalents of the Company or any of its Subsidiaries
that would not appear as “restricted” on a consolidated balance sheet of the
Company or any of its Subsidiaries.
“Unrestricted
Subsidiary”
shall
mean (i) any subsidiary of the Company identified on Schedule
1.01(i)
and (ii)
any subsidiary of the Company that is acquired or created after the Closing
Date
and designated by the Company as an Unrestricted Subsidiary hereunder by written
notice to the Administrative Agent; provided,
that
the Company shall only be permitted to so designate a new Unrestricted
Subsidiary after the Closing Date and so long as (a) no Default or Event of
Default has occurred and is continuing or would result therefrom, (b) such
Unrestricted Subsidiary shall be capitalized (to the extent capitalized by
the
Company or any of its Subsidiaries) through Investments as permitted by, and
in
compliance with, Section 6.04(j), and any prior or concurrent Investments
in such Subsidiary by the Company or any of its Subsidiaries shall be deemed
to
have been made under Section 6.04(j), (c) without duplication of clause
(b), any assets owned by such Unrestricted Subsidiary at the time of the initial
designation thereof shall be treated as Investments pursuant to
Section 6.04(j),
and (d)
such Subsidiary shall have been designated an “unrestricted subsidiary” (or
otherwise not be subject to the covenants and defaults) under the Second Lien
Notes Indenture, the Senior Subordinated Notes Indentures, any other
Indebtedness permitted to be incurred hereby and all Permitted Refinancing
Indebtedness in respect of any of the foregoing and all Disqualified
Stock;
provided,
further,
that at
the time of the initial Investment by the Company or any of its Subsidiaries
in
such Subsidiary, the Company shall designate such entity as an Unrestricted
Subsidiary in a written notice to the Administrative Agent. The Company may
designate any Unrestricted Subsidiary to be a Subsidiary for purposes of this
Agreement (each, a “Subsidiary
Redesignation”);
provided,
that
(i) such Unrestricted Subsidiary, both before and after giving effect to such
designation, shall be a Wholly Owned Subsidiary of the Company, (ii) no Default
or Event of Default has occurred and is continuing or would result therefrom,
(iii) all representations and warranties contained herein and in the other
Loan
Documents shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on and as
of
the date of such Subsidiary Redesignation (both before and after giving effect
thereto), unless stated to
Amended
and Restated Revolving Credit Agreement
-58-
relate
to
a specific earlier date, in which case such representations and warranties
shall
be true and correct in all material respects as of such earlier date, and (iv)
the Company shall have delivered to the Administrative Agent an officer’s
certificate executed by a Responsible Officer of the Company, certifying to
the
best of such officer’s knowledge, compliance with the requirements of preceding
clauses (i) through (iii), inclusive.
“Wholly
Owned Subsidiary”
of
any
person shall mean a subsidiary of such person, all of the Equity Interests
of
which (other than directors’ qualifying shares or nominee or other similar
shares required pursuant to applicable law) are owned by such person or another
Wholly Owned Subsidiary of such person.
“Withdrawal
Liability”
shall
mean liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part
I of
Subtitle E of Title IV of ERISA.
“Working
Capital”
shall
mean, with respect to the Company and the Subsidiaries on a consolidated basis
at any date of determination, Current Assets at such date of determination
minus
Current
Liabilities at such date of determination; provided,
that,
for purposes of calculating Excess Cash Flow, increases or decreases in Working
Capital shall be calculated without regard to any changes in Current Assets
or
Current Liabilities as a result of (a) any reclassification in accordance with
GAAP of assets or liabilities, as applicable, between current and noncurrent
or
(b) the effects of purchase accounting.
SECTION
1.02. Terms
Generally.
The
definitions set forth or referred to in Section 1.01 shall apply equally to
both the singular and plural forms of the terms defined. Whenever the context
may require, any pronoun shall include the corresponding masculine, feminine
and
neuter forms. The words “include,” “includes” and “including” shall be deemed to
be followed by the phrase “without limitation.” All references herein to
Articles, Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, this Agreement unless
the context shall otherwise require. Except as otherwise expressly provided
herein, any reference in this Agreement to any Loan Document shall mean such
document as amended, restated, supplemented or otherwise modified from time
to
time. Except as otherwise expressly provided herein, all terms of an accounting
or financial nature shall be construed in accordance with GAAP, as in effect
from time to time; provided,
that,
if the Company notifies the Administrative Agent that the Company requests
an
amendment to any provision hereof to eliminate the effect of any change
occurring after the Closing Date in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Company
that the Required Lenders request an amendment to any provision hereof for
such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
SECTION
1.03. Effectuation
of Transactions.
Each of
the representations and warranties of Holdings and the Borrowers contained
in
this Agreement (and all corresponding definitions) are made after giving effect
to the Transactions, unless the context otherwise requires.
Amended
and Restated Revolving Credit Agreement
-59-
SECTION
1.04. Exchange
Rates; Currency Equivalents. i)
The
Administrative Agent shall determine the Spot Rate as of each Revaluation Date
to be used for calculating Dollar Equivalent amounts of Alternate Currency
Letters of Credit. Such Spot Rate shall become effective as of such Revaluation
Date and shall be the Spot Rate employed in converting any amounts between
the
Dollars and each Alternate Currency until the next Revaluation Date to occur.
Except for purposes of financial statements delivered by Loan Parties hereunder
or calculating financial covenants hereunder or except as otherwise provided
herein, the applicable amount of any currency (other than Dollars) for purposes
of the Loan Documents shall be such Dollar Equivalent amount as so determined
by
the Administrative Agent. No Default or Event of Default shall arise as a result
of any limitation or threshold set forth in U.S. Dollars in Article VI or
paragraph (f) or (j) of Section 7.01 being exceeded solely as a result of
changes in currency exchange rates from those rates applicable on the first
day
of the fiscal quarter in which such determination occurs or in respect of which
such determination is being made.
(b) Wherever
in this Agreement in connection with an Alternate Currency Letter of Credit,
an
amount, such as a required minimum or multiple amount, is expressed in Dollars,
such amount shall be the Dollar Equivalent of such Dollar amount (rounded to
the
nearest unit of such Alternate Currency, with 0.5 of a unit being rounded
upward), as determined by the Administrative Agent.
-60-
SECTION
1.05. Senior
Debt.
The
Obligations constitute (a) “First-Lien Indebtedness” pursuant to, and as defined
in, the Intercreditor Agreement, (b) “Senior Debt” and “Designated Senior Debt”
pursuant to, and as defined in, the Senior Subordinated Notes Indentures,
and
(c) “First-Priority Lien Obligations” pursuant to, and as defined in, the Second
Lien Notes Indenture. This Agreement is a “Credit Agreement” for purposes of the
Subordinated Indentures and the Second Lien Notes Indenture.
ARTICLE
II
The
Credits
SECTION
2.01. Commitments.
Subject
to the terms and conditions set forth herein, each Lender agrees to make
Revolving Loans to the Borrowers from time to time during the Availability
Period in an aggregate principal amount that will not result in (i) such
Lender’s Revolving Facility Credit Exposure (except for the Administrative Agent
with respect to Agent Advances) exceeding such Lender’s Revolving Facility
Commitment (or, if less, prior to delivery to the Administrative Agent of the
Post-Closing Reports, such Lender’s Pro Rata Share of $340 million), or (ii) the
Revolving Facility Credit Exposure exceeding the total Revolving Facility
Commitments or, until delivery of the Post-Closing Reports to the Administrative
Agent, $340 million, or (iii) such Lender’s Revolving Facility Credit Exposure
exceeding such Lender’s Pro Rata Share of the Borrowing Base. The Lenders,
however, in their unanimous discretion, may elect to make Revolving Loans or
issue or arrange to have issued Letters of Credit in excess of the Availability
on one or more occasions, but if they do so, neither the Administrative Agent
nor the Lenders shall be deemed thereby to have changed the limits of the
Borrowing Base or to be obligated to exceed such limits on any other occasion.
If the Revolving Facility Credit Exposure
exceeds
the Borrowing Base, the Lenders may refuse to make or otherwise restrict the
making of Revolving Loans and the issuance of Letters of Credit as the Lenders
determine until such excess has been eliminated, subject to the Administrative
Agent’s authority, in its sole discretion, to make Agent Advances pursuant to
the terms of Section 2.04(d). Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrowers may borrow, prepay and
reborrow Revolving Loans.
SECTION
2.02. Loans
and Borrowings.
ii)
Each
Revolving Loan shall be made as part of a Borrowing consisting of Loans under
the Revolving Facility and of the same Type made by the Lenders ratably in
accordance with their respective Commitments under the Revolving Facility (or,
in the case of Swingline Loans, in accordance with their respective Swingline
Commitments); provided,
however,
that
Revolving Loans shall be made by the Revolving Lenders ratably in accordance
with their respective Pro Rata Shares on the date such Loans are made hereunder.
The failure of any Lender to make any Loan required to be made by it shall
not
relieve any other Lender of its obligations hereunder; provided,
that
the Commitments of the Lenders are several and no Lender shall be responsible
for any other Lender’s failure to make Loans as required.
(b) Subject
to Section 2.14, each Borrowing (other than a Swingline Borrowing and
excluding Agent Advances) shall be comprised entirely of ABR Loans or
Eurocurrency Loans as the Borrowers may request in accordance herewith. Each
Swingline Borrowing shall be an ABR Borrowing. Each Lender at its option may
make any ABR Loan or Eurocurrency Loan by causing any domestic or foreign branch
or Affiliate of such Lender to make such Loan; provided,
that
any exercise of such option shall not affect the obligation of the Borrowers
to
repay such Loan in accordance with the terms of this Agreement and such Lender
shall not be entitled to any amounts payable under Section 2.15 or 2.17
solely in respect of increased costs resulting from such exercise and existing
at the time of such exercise.
(c) At
the
commencement of each Interest Period for any Eurocurrency Revolving Facility
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of the Borrowing Multiple and not less than the Borrowing Minimum. At
the time that each ABR Revolving Facility Borrowing is made, such Borrowing
shall be in an aggregate amount that is an integral multiple of the Borrowing
Multiple and not less than the Borrowing Minimum; provided,
that an
ABR Revolving Facility Borrowing may be in an aggregate amount that is equal
to
the entire unused balance of the Revolving Facility Commitments or that is
required to finance the reimbursement of an L/C - BA Disbursement as
contemplated by Section 2.05(e). Each Swingline Borrowing shall be in an
amount that is an integral multiple of the Borrowing Multiple and not less
than
the Borrowing Minimum. Borrowings of more than one Type and under more than
one
Facility may be outstanding at the same time; provided,
that
there shall not at any time be more than a total of 10 Eurocurrency Borrowings
outstanding under the Revolving Facility.
(d) Notwithstanding
any other provision of this Agreement, no Borrower shall be entitled to request,
or to elect to convert or continue, any Borrowing if the Interest Period
requested with respect thereto would end after the Revolving Facility Maturity
Date.
Amended
and Restated Revolving Credit Agreement
-61-
SECTION
2.03. Requests
for Borrowings.
To
request a Revolving Facility Borrowing, a Borrower shall notify the
Administrative Agent of such request by telephone (a) in the case of a
Eurocurrency Borrowing, not later than 12:00 p.m., Local Time, three Business
Days before the date of the proposed Borrowing or (b) in the case of an ABR
Borrowing, not later than 12:00 noon, Local Time, one Business Day before the
date of the proposed Borrowing; provided,
that
any such notice of an ABR Revolving Facility Borrowing to finance the
reimbursement of an L/C - BA Disbursement as contemplated by
Section 2.05(e) may be given not later than 10:00 a.m., Local Time, on the
date of the proposed Borrowing. Each such telephonic Borrowing Request shall
be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to
the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by such Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) the
aggregate amount of the requested Borrowing;
(ii) the
date
of such Borrowing, which shall be a Business Day;
(iii) whether
such Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing;
(iv) in
the
case of a Eurocurrency Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated by the definition of the term
“Interest Period”; and
(v) the
location and number of the Borrower’s account to which funds are to be
disbursed.
If
no
election as to the Type of Revolving Facility Borrowing is specified, then
the
requested Revolving Facility Borrowing shall be an ABR Borrowing. If no Interest
Period is specified with respect to any requested Eurocurrency Borrowing, then
the applicable Borrower shall be deemed to have selected an Interest Period
of
one month’s duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender
of the details thereof and of the amount of such Lender’s Loan to be made as
part of the requested Borrowing.
SECTION
2.04. Swingline
Loans and Agent Advances.
iii)
Subject
to the terms and conditions set forth herein, the Swingline Lender agrees to
make Swingline Loans to the Borrowers from time to time during the Availability
Period, in an aggregate principal amount at any time outstanding that will
not
result in (i) the aggregate principal amount of outstanding Swingline Loans
exceeding the Swingline Commitment or (ii) the Revolving Facility Credit
Exposure exceeding the Borrowing Base; provided,
that
the Swingline Lender shall not be required to make a Swingline Loan to refinance
an outstanding Swingline Borrowing. Within the foregoing limits and subject
to
the terms and conditions set forth herein, the Borrowers may borrow, prepay
and
reborrow Swingline Loans.
(b) To
request a Swingline Borrowing, the Borrowers shall notify the Administrative
Agent and the Swingline Lender of such request by telephone (confirmed by
a
Amended
and Restated Revolving Credit Agreement
-62-
Swingline
Borrowing Request by telecopy), not later than 1:00 p.m., Local Time, on the
day
of a proposed Swingline Borrowing. Each such notice and Swingline Borrowing
Request shall be irrevocable and shall specify (i) the requested date (which
shall be a Business Day) and (ii) the amount of the requested Swingline
Borrowing. The Swingline Lender shall consult with the Administrative Agent
as
to whether the making of the Swingline Loan is in accordance with the terms
of
this Agreement prior to the Swingline Lender funding such Swingline Loan. The
Swingline Lender shall make each Swingline Loan in accordance with
Section 2.02(a) on the proposed date thereof by wire transfer of
immediately available funds by 3:00 p.m., Local Time, to the account of such
Borrower (or, in the case of a Swingline Borrowing made to finance the
reimbursement of an L/C - BA Disbursement as provided in Section 2.05(e),
by remittance to the applicable Issuing Bank).
(c) The
Swingline Lender may by written notice given to the Administrative Agent not
later than 10:00 a.m., Local Time, on any Business Day require the Revolving
Lenders to acquire participations on such Business Day in all or a portion
of
the outstanding Swingline Loans made by it. Such notice shall specify the
aggregate amount of such Swingline Loans in which the Revolving Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent
will
give notice thereof to each such Lender, specifying in such notice such Lender’s
Revolving Lender’s Pro Rata Share of such Swingline Loan or Loans. Each
Revolving Lender hereby absolutely and unconditionally agrees, upon receipt
of
notice as provided above, to pay to the Administrative Agent for the account
of
the Swingline Lender, such Revolving Lender’s Pro Rata Share of such Swingline
Loan or Loans. Each Revolving Lender acknowledges and agrees that its respective
obligation to acquire participations in Swingline Loans pursuant to this
paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment
shall
be made without any offset, abatement, withholding or reduction whatsoever.
Each
Revolving Lender shall comply with its obligation under this paragraph by wire
transfer of immediately available funds, in the same manner as provided in
Section 2.06 with respect to Loans made by such Revolving Lender (and
Section 2.06 shall apply, mutatis
mutandis,
to the
payment obligations of the Lenders), and the Administrative Agent shall promptly
pay to the Swingline Lender the amounts so received by it from the Revolving
Lenders. The Administrative Agent shall notify the Borrowers of any
participations in any Swingline Loan acquired pursuant to this
paragraph (c), and thereafter payments in respect of such Swingline Loan
shall be made to the Administrative Agent and not to the Swingline Lender.
Any
amounts received by the Swingline Lender from the Borrowers (or other party
on
behalf of such Borrowers) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall
be
promptly remitted to the Administrative Agent; any such amounts received by
the
Administrative Agent shall be promptly remitted by the Administrative Agent
to
the Revolving Lenders that shall have made their payments pursuant to this
paragraph and to the Swingline Lender, as their interests may
appear; provided,
that
any such payment so remitted shall be repaid to the Swingline Lender or to
the
Administrative Agent, as applicable, if and to the extent such payment is
required to be refunded to the applicable Borrower for any reason. The purchase
of participations in a Swingline Loan pursuant to this paragraph shall not
relieve the Borrowers of any default in the payment thereof.
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(d) Subject
to the limitations set forth in the provisos contained in this Section 2.04(d),
the
Administrative Agent is hereby authorized by the Borrowers and the Lenders,
from
time to time in the Administrative Agent’s sole discretion, (i) after the
occurrence of a Default or an Event of Default, or (ii) at any time that any
of
the other applicable conditions precedent set forth in Article
IV
have not
been satisfied, to make advances to or for the account of any Borrower on behalf
of the Lenders which the Administrative Agent, in its reasonable business
judgment, deems necessary or desirable (A) to preserve or protect the
Collateral, or any portion thereof, (B) to enhance the likelihood of, or
maximize the amount of, repayment of the Revolving Loans and other Obligations,
or (C) to pay any other amount chargeable to the Borrowers pursuant to the
terms
of this Agreement, including costs, fees, and expenses as described in Section
9.05(a) (any of the advances described in this Section
2.04(d)
being
hereinafter referred to as “Agent
Advances”);
provided
that (1)
the Revolving Facility Credit Exposure after giving effect to any Agent Advance
shall not exceed the Revolving Facility Commitments and (2) Agent Advances
outstanding and unpaid at no time will exceed $30 million in the aggregate,
and
provided further
that the
Required Lenders may at any time revoke the Administrative Agent’s authorization
contained in this Section
2.04(d)
to make
Agent Advances, any such revocation to be in writing and to become effective
prospectively upon the Administrative Agent’s receipt thereof. The Agent
Advances shall be repayable on demand and secured by the Collateral Agent’s
Liens in and to the Collateral, shall constitute Obligations hereunder, and
shall bear interest at the rate applicable to Revolving Loans from time to
time.
The Administrative Agent shall notify each Lender in writing of each Agent
Advance; provided
that any
delay or failure of the Administrative Agent in providing any such notice to
any
Lender shall not result in any liability or constitute the breach of any duty
or
obligation of the Administrative Agent hereunder.
(e) The
Administrative Agent, the Swingline Lender and the Lenders agree (which
agreement shall not be for the benefit of or enforceable by the Borrowers)
that
in order to facilitate the administration of this Agreement and the other Loan
Documents, settlement among them as to the Revolving Loans and the Swingline
Loans and the Agent Advances shall take place on a periodic basis in accordance
with the following provisions:
(i) The
Administrative Agent shall request settlement (a “Settlement”)
with
the Lenders on at least a weekly basis, or on a more frequent basis if so
determined by the Administrative Agent, (A) on behalf of the Swingline Lender,
with respect to each outstanding Swingline Loan, (B) for itself, with respect
to
each Agent Advance, and (C) with respect to collections received, in each
case, by notifying the Lenders of such requested Settlement by telecopy,
telephone, or other similar form of transmission, of such requested Settlement,
no later than 12:00 noon, Local Time, on the date of such requested Settlement
(the “Settlement
Date”).
Each
Lender (other than the Swingline Lender, in the case of Swingline Loans, and
the
Administrative Agent, in the case of Agent Advances) shall make the amount
of
such Lender’s Pro Rata Share of the outstanding principal amount of the
Swingline Loans and Agent Advances with respect to which Settlement is requested
available to the Administrative Agent, to such account of the Administrative
Agent as the Administrative Agent may designate, not later than 3:00 p.m.,
Local
Time, on the Settlement Date applicable thereto, which may occur before or
after
the occurrence or during the continuation of a Default or an Event of Default
and whether or not the applicable conditions precedent set forth in Article
IV
have then been
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satisfied.
Such amounts made available to the Administrative Agent shall be applied against
the amounts of the applicable Swingline Loan or Agent Advance and, together
with
the portion of such Swingline Loan or Agent Advance representing the Swingline
Lender’s or Administrative Agent’s Pro Rata Share thereof, shall constitute
Revolving Loans of the Revolving Lenders. If any such amount is not made
available to the Administrative Agent by any Revolving Lender on the Settlement
Date applicable thereto, the Administrative Agent shall, on behalf of the
Swingline Lender with respect to each outstanding Swingline Loan and for itself
with respect to each Agent Advance, be entitled to recover such amount on demand
from such Revolving Lender together with interest thereon at the Federal Funds
Effective Rate for the first three days from and after the Settlement Date
and
thereafter at the interest rate then applicable to ABR Revolving
Loans.
(ii) Notwithstanding
the foregoing, not more than one Business Day after demand is made by the
Administrative Agent (whether before or after the occurrence of a Default or
an
Event of Default and regardless of whether the Administrative Agent has
requested a Settlement with respect to a Swingline Loan or Agent Advance),
each
Revolving Lender (A) shall irrevocably and unconditionally purchase and receive
from the Swingline Lender or the Administrative Agent, as the case may be,
without recourse or warranty, an undivided interest and participation in such
Swingline Loan or Agent Advance equal to such Revolving Lender’s Pro Rata Share
of such Swingline Loan or Agent Advance and (B) if Settlement has not previously
occurred with respect to such Swingline Loans or Agent Advances, upon demand
by
the Swingline Lender or the Administrative Agent, as the case may be, shall
pay
to the Swingline Lender or Administrative Agent, as applicable, as the purchase
price of such participation an amount equal to one-hundred percent (100%) of
such Revolving Lender’s Pro Rata Share of such Swingline Loans or Agent
Advances. If such amount is not in fact made available to the Administrative
Agent by any Lender, the Administrative Agent shall be entitled to recover
such
amount on demand from such Lender together with interest thereon at the Federal
Funds Effective Rate for the first three days from and after such demand and
thereafter at the Interest Rate then applicable to ABR Revolving
Loans.
(iii) From
and
after the date, if any, on which any Lender purchases an undivided interest
and
participation in any Swingline Loan or Agent Advance pursuant to clause (ii)
preceding, the Administrative Agent shall promptly distribute to such Revolving
Lender such Revolving Lender’s Pro Rata Share of all payments of principal and
interest and all proceeds of Collateral received by the Administrative Agent
in
respect of such Swingline Loan or Agent Advance.
(iv) Between
Settlement Dates, to the extent no Agent Advances are outstanding, the
Administrative Agent may pay over to the Swingline Lender any payments received
by the Administrative Agent, which in accordance with the terms of this
Agreement would be applied to the reduction of the Revolving Loans, for
application to the Swingline Lender’s Revolving Loans or Swingline Loans. If, as
of any Settlement Date, collections received since the then immediately
preceding Settlement Date have been applied to the Swingline Lender’s Revolving
Loans, the Swingline Lender shall pay to the Administrative Agent for the
accounts of the Lenders, to be applied to the
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(b) Notice
of Issuance,
Amendment,
Renewal,
Extension: Certain Conditions.
To
request the issuance of a Letter of Credit (or the amendment, renewal (other
than an automatic extension in accordance with paragraph (c) of this Section)
or
extension of an outstanding Letter of Credit), a Borrower shall hand deliver
or
telecopy (or transmit by electronic communication, if arrangements for doing
so
have been approved by the applicable Issuing Bank) to the applicable Issuing
Bank and the Administrative Agent (three Business Days in advance of the
requested date of issuance, amendment or extension or such shorter period as
the
Administrative Agent and the Issuing Bank in their sole discretion may agree)
a
notice requesting the issuance of a Letter of Credit, or identifying the Letter
of Credit to be amended or extended, and specifying the date of issuance,
amendment or extension (which shall be a Business Day), the date on which such
Letter of Credit and, in the case of an Acceptance Credit, all Bankers’
Acceptances created thereunder are to expire (which shall comply with
paragraph (c) of this Section), the amount and currency (which may be
Dollars or an Alternate Currency) of such Letter of Credit, the name and address
of the beneficiary thereof and such other information as shall be necessary
to
issue, amend or extend such Letter of Credit (including whether such Letter
of
Credit is an Acceptance Credit). If requested by the applicable Issuing Bank,
such Borrower also shall submit a letter of credit application on such Issuing
Bank’s standard form in connection with any request for a Letter of Credit. A
Letter of Credit shall be issued, amended or extended only if (and upon
issuance, amendment or extension of each Letter of Credit such Borrower shall
be
deemed to represent and warrant that), after giving effect to
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(c) Expiration
Date.
Each
Letter of Credit shall expire (and in the case of an Acceptance Credit, shall
provide that all Bankers’ Acceptances created thereunder (which shall in no
event have a maturity of less than 30 or more than 120 days after creation
thereof) shall expire) at or prior to the close of business on the earlier
of
(i) the date one year (unless otherwise agreed upon by the Administrative Agent
and the Issuing Bank in their sole discretion) after the date of the issuance
of
such Letter of Credit (or, in the case of any extension thereof, one year
(unless otherwise agreed upon by the Administrative Agent and the Issuing Bank
in their sole discretion) after such renewal or extension) and (ii) the date
that is three Business Days prior to the Revolving Facility Maturity
Date; provided,
that
any Letter of Credit with one year tenor may provide for automatic extension
thereof for additional one year periods (which, in no event, shall extend beyond
the date referred to in clause (ii) of this paragraph (c)) so long as such
Letter of Credit permits the Issuing Bank to prevent any such extension at
least
once in each twelve-month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary thereof not later
than five days in each such twelve-month period to be agreed upon at the time
such Letter of Credit is issued; provided,
further,
that if
the Issuing Bank and the Administrative Agent each consent in their sole
discretion, the expiration date on any Letter of Credit (or, in the case of
an
Acceptance Credit, any Bankers’ Acceptances thereunder) may extend beyond the
date referred to in clause (ii) above, provided that, if any such Letter of
Credit is outstanding or is issued after the date that is 30 days prior to
the
Revolving Facility Maturity Date the Borrowers shall provide cash collateral
pursuant to documentation reasonably satisfactory to the Administrative Agent
and the relevant Issuing Bank in an amount equal to 105% of the face amount
of
each such Letter of Credit on or prior to the date that is 30 days prior to
the
Revolving Facility Maturity Date or, if later, such date of
issuance.
(d) Participations.
By the
issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing
the amount thereof) or the creation of a Bankers’ Acceptance in respect of an
Acceptance Credit, and without any further action on the part of the applicable
Issuing Bank or the Revolving Lenders, such Issuing Bank hereby grants to each
Revolving Lender, and each Revolving Lender hereby acquires from such Issuing
Bank, a participation in such Letter of Credit or Bankers’ Acceptance equal to
such Revolving Lender’s Pro Rata Share of the aggregate amount available to be
drawn under such Letter of Credit or the aggregate amount of such Bankers’
Acceptance (calculated, in the case of Alternate Currency Letters of Credit,
based on the Dollar Equivalent thereof). In consideration and in furtherance
of
the foregoing, each Revolving Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent, for the account of the applicable
Issuing Bank, in Dollars, such Revolving Lender’s Pro Rata Share of each L/C -
BA Disbursement made by such Issuing Bank and not reimbursed by the Borrowers
on
the date due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the Borrowers for any reason
(calculated, in the case of any Alternate Currency Letter of Credit, based
on
the Dollar Equivalent thereof). Each Revolving Lender acknowledges and agrees
that its obligation to acquire participations pursuant to this paragraph in
respect of Letters of Credit is absolute and unconditional and
shall
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(e) Reimbursement.
If the
applicable Issuing Bank shall make any L/C - BA Disbursement in respect of
a
Letter of Credit or Bankers’ Acceptance, the Borrowers shall reimburse such L/C
- BA Disbursement by paying to the Administrative Agent an amount in Dollars
equal to such L/C - BA Disbursement (or, in the case of an Alternate Currency
Letter of Credit, the Dollar Equivalent thereof) not later than 2:00 p.m.,
Local
Time, on the third Business Day after the Borrowers receives notice under
paragraph (g) of this Section of such L/C - BA Disbursement, together
with accrued interest thereon from the date of such L/C - BA Disbursement at
the
rate applicable to ABR Loans; provided,
that
the Borrowers may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 or 2.04 that such payment be
financed with an ABR Revolving Facility Borrowing or a Swingline Borrowing,
as
applicable, in an equivalent amount and, to the extent so financed, the
Borrowers’ obligation to make such payment shall be discharged and replaced by
the resulting ABR Revolving Facility Borrowing or Swingline Borrowing. If the
Borrowers fail to reimburse any L/C - BA Disbursement when due, then the
Administrative Agent shall promptly notify the applicable Issuing Bank and
each
other Revolving Lender of the applicable L/C - BA Disbursement, the payment
then
due from the Borrowers in respect thereof and, in the case of a Revolving
Lender, such Lender’s Pro Rata Share thereof. Promptly following receipt of such
notice, each Revolving Lender shall pay to the Administrative Agent in Dollars
its Pro Rata Share of the payment then due from the Borrowers in the same manner
as provided in Section 2.06 with respect to Loans made by such Lender (and
Section 2.06 shall apply, mutatis mutandis,
to the
payment obligations of the Revolving Lenders), and the Administrative Agent
shall promptly pay to the applicable Issuing Bank the amounts so received by
it
from the Revolving Lenders. Promptly following receipt by the Administrative
Agent of any payment from the Borrowers pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the applicable Issuing
Bank or, to the extent that Revolving Lenders have made payments pursuant to
this paragraph to reimburse such Issuing Bank, then to such Lenders and such
Issuing Bank as their interests may appear. Any payment made by a Revolving
Lender pursuant to this paragraph to reimburse an Issuing Bank for any L/C
- BA
Disbursement (other than the funding of an ABR Revolving Loan or a Swingline
Borrowing as contemplated above) shall not constitute a Loan and shall not
relieve the Borrowers of their obligation to reimburse such L/C - BA
Disbursement.
(f) Obligations
Absolute.
The
obligation of the Borrowers to reimburse L/C - BA Disbursements as provided
in
paragraph (e) of this Section shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement under any and all circumstances whatsoever and irrespective
of
(i) any lack of validity or enforceability of any Letter of Credit, any Bankers’
Acceptance or this Agreement, or any term or provision therein, (ii) any draft
or other document presented under a Letter of Credit or Bankers’ Acceptance
proving to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect, (iii) payment by the
applicable Issuing Bank under a Letter of Credit or Bankers’ Acceptance against
presentation of a draft or other document that does not comply with the terms
of
such Letter of Credit or Bankers’ Acceptance
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or
(iv)
any other event or circumstance whatsoever, whether or not similar to any of
the
foregoing, that might, but for the provisions of this Section, constitute a
legal or equitable discharge of, or provide a right of setoff against, the
Borrowers’ obligations hereunder. Neither the Administrative Agent, the Lenders
nor any Issuing Bank, nor any of their Related Parties, shall have any liability
or responsibility by reason of or in connection with the issuance or transfer
of
any Letter of Credit or Bankers’ Acceptance or any payment or failure to make
any payment thereunder (irrespective of any of the circumstances referred to
in
the preceding sentence), or any error, omission, interruption, loss or delay
in
transmission or delivery of any draft, notice or other communication under
or
relating to any Letter of Credit or Bankers’ Acceptance (including any document
required to make a drawing thereunder), any error in interpretation of technical
terms or any consequence arising from causes beyond the control of such Issuing
Bank, or any of the circumstances referred to in clauses (i), (ii) or (iii)
of the first sentence; provided,
that
the foregoing shall not be construed to excuse the applicable Issuing Bank
from
liability to the Borrowers to the extent of any direct damages (as opposed
to
consequential damages, claims in respect of which are hereby waived by the
Borrowers to the extent permitted by applicable law) suffered by the Borrowers
that are determined by a court of competent jurisdiction to have been caused
by
such Issuing Bank’s failure to exercise care when determining whether drafts and
other documents presented under a Letter of Credit or Bankers’ Acceptance comply
with the terms thereof. The parties hereto expressly agree that, in the absence
of gross negligence or willful misconduct on the part of the applicable Issuing
Bank, such Issuing Bank shall be deemed to have exercised care in each such
determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents presented
which appear on their face to be in substantial compliance with the terms of
a
Letter of Credit or Bankers’ Acceptance, the applicable Issuing Bank may, in its
sole discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary.
(g) Disbursement
Procedures.
The
applicable Issuing Bank shall, promptly following its receipt thereof, examine
all documents purporting to represent a demand for payment or creation of a
Bankers’ Acceptance under a Letter of Credit or any presentation for payment of
a Bankers’ Acceptance. Such Issuing Bank shall promptly notify the
Administrative Agent and the applicable Borrower by telephone (confirmed by
telecopy) of any such demand for payment or Bankers’ Acceptance and whether such
Issuing Bank has made or will make a L/C - BA Disbursement
thereunder; provided,
that
any failure to give or delay in giving such notice shall not relieve the
Borrowers of their obligation to reimburse such Issuing Bank and the Revolving
Lenders with respect to any such L/C - BA Disbursement.
(h) Interim
Interest.
If an
Issuing Bank shall make any L/C - BA Disbursement, then, unless the Borrowers
shall reimburse such L/C - BA Disbursement in full on the date such L/C - BA
Disbursement is made, the unpaid amount thereof shall bear interest, for each
day from and including the date such L/C - BA Disbursement is made to but
excluding the date that the Borrowers reimburse such L/C - BA Disbursement,
at
the rate per annum then applicable to ABR Revolving Loans; provided,
that,
if such L/C - BA Disbursement is not reimbursed by the Borrowers when due
pursuant to paragraph (e) of this Section, then Section 2.13(c) shall
apply. Interest accrued pursuant to this paragraph shall be for the account
of
the applicable Issuing Bank, except that interest accrued on and after the
date
of payment by
Amended
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any
Revolving Lender pursuant to paragraph (e) of this Section to reimburse
such Issuing Bank shall be for the account of such Revolving Lender to the
extent of such payment.
(i) Replacement
of an Issuing Bank.
An
Issuing Bank may be replaced at any time by written agreement among the Company,
the Administrative Agent, the replaced Issuing Bank and the successor Issuing
Bank. The Administrative Agent shall notify the Lenders of any such replacement
of an Issuing Bank. At the time any such replacement shall become effective,
the
Borrowers shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.12. From and after the effective date of
any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of the replaced Issuing Bank under this Agreement with respect
to Letters of Credit to be issued thereafter and (ii) references herein to
the
term “Issuing Bank” shall be deemed to refer to such successor or to any
previous Issuing Bank, or to such successor and all previous Issuing Banks,
as
the context shall require. After the replacement of an Issuing Bank hereunder,
the replaced Issuing Bank shall remain a party hereto and shall continue to
have
all the rights and obligations of such Issuing Bank under this Agreement with
respect to Letters of Credit or Bankers’ Acceptances issued by it prior to such
replacement but shall not be required to issue additional Letters of
Credit.
(j) Cash
Collateralization.
If any
Event of Default shall occur and be continuing, (i) in the case of an Event
of
Default described in Section 7.01(h) or (i), on the Business Day or (ii) in
the case of any other Event of Default, on the third Business Day, in each
case,
following the date on which the Company receives notice from the Administrative
Agent (or, if the maturity of the Loans has been accelerated, Revolving Lenders
with Revolving L/C - BA Exposure representing greater than 50% of the total
Revolving L/C - BA Exposure) demanding the deposit of cash collateral pursuant
to this paragraph, the Borrowers shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Lenders, an amount in cash equal to the Revolving L/C - BA
Exposure as of such date plus any accrued and unpaid interest
thereon; provided,
that
upon the occurrence of any Event of Default with respect to any Borrower
described in clause (h) or (i) of Section 7.01, the obligation to
deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other notice
of any kind. Each such deposit pursuant to this paragraph shall be held by
the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrowers under this Agreement. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole
discretion of (i) for so long as an Event of Default shall be continuing, the
Administrative Agent and (ii) at any other time, the Borrowers, in each case,
in
Permitted Investments and at the risk and expense of the Borrowers, such
deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall
be
applied by the Administrative Agent to reimburse each Issuing Bank for L/C
- BA
Disbursements for which such Issuing Bank has not been reimbursed and, to the
extent not so applied, shall be held for the satisfaction of the reimbursement
obligations of the Borrowers for the Revolving L/C - BA Exposure at such time
or, if the maturity of the Loans has been accelerated (but subject to the
consent of Revolving Lenders with Revolving L/C - BA Exposure representing
greater than 50% of the total Revolving L/C - BA Exposure), be applied to
satisfy other obligations of the Borrowers under this Agreement. If the
Borrowers are required to provide an amount of cash
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collateral
hereunder as a result of the occurrence of an Event of Default, such amount
(to
the extent not applied as aforesaid) shall be returned to the Borrowers within
three Business Days after all Events of Default have been cured or waived.
(k) Additional
Issuing Banks.
From
time to time, the Borrowers may by notice to the Administrative Agent designate
one or more Lenders (in addition to Bank of America, Credit Suisse and Deutsche
Bank AG New York Branch) each of which agrees (in its sole discretion) to act
in
such capacity and is reasonably satisfactory to the Administrative Agent as
an
Issuing Bank. Each such additional Issuing Bank shall execute a counterpart
of
this Agreement upon the approval of the Administrative Agent (which approval
shall not be unreasonably withheld) and shall thereafter be an Issuing Bank
hereunder for all purposes.
(l) Reporting.
Unless
otherwise requested by the Administrative Agent, each Issuing Bank shall (i)
provide to the Administrative Agent copies of any notice received from the
Borrowers pursuant to Section 2.05(b) no later than the next Business Day
after receipt thereof and (ii) report in writing to the Administrative Agent
(A)
on or prior to each Business Day on which such Issuing Bank expects to issue,
amend or extend any Letter of Credit, the date of such issuance, amendment
or
extension, and the aggregate face amount of the Letters of Credit to be issued,
amended or extended by it and outstanding after giving effect to such issuance,
amendment or extension occurred (and whether the amount thereof changed), and
the Issuing Bank shall be permitted to issue, amend or extend such Letter of
Credit if the Administrative Agent shall not have advised the Issuing Bank
that
such issuance, amendment or extension would not be in conformity with the
requirements of this Agreement, (B) on each Business Day on which such Issuing
Bank makes any L/C - BA Disbursement or creates any Bankers’ Acceptance, the
date of such L/C - BA Disbursement or Bankers’ Acceptance and the amount of such
L/C - BA Disbursement or Bankers’ Acceptance and (C) on any other Business Day,
such other information as the Administrative Agent shall reasonably request,
including but not limited to prompt verification of such information as may
be
requested by the Administrative Agent.
SECTION
2.06. Funding
of Borrowings.
v)
Each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds by 12:00 noon, Local
Time, to the account of the Administrative Agent most recently designated by
it
for such purpose by notice to the Lenders;
provided,
that
Swingline Loans and Agent Advances shall be made as provided in
Section 2.04. The Administrative Agent will make such Loans available to
the Borrowers by promptly crediting the amounts so received, in like funds,
to
an account of the Borrowers maintained with the Administrative Agent in New
York
City; provided,
that
ABR Revolving Loans and Swingline Borrowings made to finance the reimbursement
of a L/C - BA Disbursement and reimbursements as provided in
Section 2.05(e) shall be remitted by the Administrative Agent to the
applicable Issuing Bank.
(b) Unless
the Administrative Agent shall have received notice from a Lender prior to
the
proposed date of any Borrowing that such Lender will not make available to
the
Administrative Agent such Lender’s share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date
in
accordance with paragraph (a) of this Section and may, in reliance upon
such assumption, make available to the Borrowers a corresponding amount. In
such
event, if a Lender has not in fact made its share of the applicable Borrowing
available to the Administrative Agent, then the applicable Lender
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the
Borrowers severally agree to pay to the Administrative Agent forthwith on demand
(without duplication) such corresponding amount with interest thereon, for
each
day from and including the date such amount is made available to the Borrowers
to but excluding the date of payment to the Administrative Agent, at (i) in
the
case of such Lender, the Federal Funds Effective Rate and a rate determined
by
the Administrative Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of the Borrowers, the interest rate applicable
to ABR Loans at such time. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender’s Loan included in such
Borrowing.
SECTION
2.07. Interest
Elections.
vi)
Each
Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurocurrency Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, any Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurocurrency Borrowing, may elect Interest
Periods therefor, all as provided in this Section. Any Borrower may elect
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each
such
portion shall be considered a separate Borrowing. This Section shall not apply
to Swingline Borrowings or Agent Advances, which may not be converted or
continued.
(b) To
make
an election pursuant to this Section, the applicable Borrower shall notify
the
Administrative Agent of such election by telephone by the time that a Borrowing
Request would be required under Section 2.03 if such Borrower were
requesting a Borrowing of the Type resulting from such election to be made
on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery
or
telecopy to the Administrative Agent of a written Interest Election Request
in a
form approved by the Administrative Agent and signed by the applicable
Borrower.
(c) Each
telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:
(i) the
Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case
the
information to be specified pursuant to clauses (iii) and (iv) below shall
be specified for each resulting Borrowing);
(ii) the
effective date of the election made pursuant to such Interest Election Request,
which shall be a Business Day;
(iii) whether
the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;
and
(iv) if
the
resulting Borrowing is a Eurocurrency Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by clause (a) of the definition of the term “Interest
Period.”
Amended
and Restated Revolving Credit Agreement
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If
any
such Interest Election Request requests a Eurocurrency Borrowing but does not
specify an Interest Period, then the applicable Borrower shall be deemed to
have
selected an Interest Period of one month’s duration.
(d) Promptly
following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender to which such Interest Election Request relates of
the
details thereof and of such Lender’s portion of each resulting
Borrowing.
(e) If
any
Borrower fails to deliver a timely Interest Election Request with respect to
a
Eurocurrency Borrowing prior to the end of the Interest Period applicable
thereto, then, unless such Borrowing is repaid as provided herein, at the end
of
such Interest Period such Borrowing shall be converted to an ABR Borrowing.
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the written request
(including a request through electronic means) of the Required Lenders, so
notifies the applicable Borrower, then, so long as an Event of Default is
continuing (i) no outstanding Borrowing may be converted to or continued as
a
Eurocurrency Borrowing and (ii) unless repaid, each Eurocurrency Borrowing
shall
be converted to an ABR Borrowing at the end of the Interest Period applicable
thereto.
SECTION
2.08. Termination
and Reduction of Commitments.
vii)
Unless
previously terminated, the Revolving Facility Commitments shall terminate on
the
Revolving Facility Maturity Date.
(b) The
Borrowers may at any time terminate, or from time to time reduce, the Revolving
Facility Commitments;
provided,
that
(i) each reduction of the Revolving Facility Commitments shall be in an amount
that is an integral multiple of $1 million and not less than $5 million (or,
if
less, the remaining amount of the Revolving Facility Commitments), and (ii)
the
Borrowers shall not terminate or reduce the Revolving Facility Commitments
if,
after giving effect to any concurrent prepayment of the Revolving Loans in
accordance with Section 2.11, the Revolving Facility Credit Exposure would
exceed the Borrowing Base.
(c) The
Borrowers shall notify the Administrative Agent of any election to terminate
or
reduce the Revolving Facility Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the applicable Lenders of the contents thereof. Each notice
delivered by the Borrowers pursuant to this Section shall be
irrevocable;
provided,
that a
notice of termination of the Revolving Facility Commitments delivered by the
Borrowers may state that such notice is conditioned upon the effectiveness
of
other credit facilities, in which case such notice may be revoked by the
Borrowers (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination or reduction
of the Revolving Facility Commitments shall be permanent. Each reduction of
the
Revolving Facility Commitments shall be made ratably among the Lenders in
accordance with their respective Revolving Facility Commitments.
SECTION
2.09. Repayment
of Loans; Evidence of Debt.
viii)
The
Borrowers hereby unconditionally promise to pay (i) to the Administrative Agent
for the account of each
Amended
and Restated Revolving Credit Agreement
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Revolving
Lender the then unpaid principal amount of each Revolving Loan to the Borrowers
on the Revolving Facility Maturity Date, (ii) to the Swingline Lender the then
unpaid principal amount of each Swingline Loan on the Revolving Facility
Maturity Date, and (iii) to the Administrative Agent the then unpaid principal
amount of each Agent Advance on the Revolving Facility Maturity
Date; provided,
that on
each date that a Revolving Facility Borrowing is made by any Borrower, the
Borrowers shall repay all Swingline Loans and Agent Advances then
outstanding.
(b) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrowers to such Lender resulting
from each Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time
hereunder.
(c) The
Administrative Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder, the Type thereof and the Interest Period
(if
any) applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrowers to each Lender hereunder
and (iii) any amount received by the Administrative Agent hereunder for the
account of the Lenders and each Lender’s share thereof.
(d) The
entries made in the accounts maintained pursuant to paragraph (b) or (c) of
this Section shall be prima facie evidence of the existence and amounts of
the
obligations recorded therein;
provided,
that
the failure of any Lender or the Administrative Agent to maintain such accounts
or any error therein shall not in any manner affect the obligation of the
Borrowers to repay the Loans in accordance with the terms of this
Agreement.
(e) Any
Lender may request that Loans made by it be evidenced by a promissory note
(a
“Note”).
In
such event, the Borrowers shall prepare, execute and deliver to such Lender
a
promissory note payable to the order of such Lender (or, if requested by such
Lender, to such Lender and its registered assigns) and in a form approved by
the
Administrative Agent and reasonably acceptable to the Borrowers. Thereafter,
the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one
or more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and
its
registered assigns).
SECTION
2.10. Repayment
of Revolving Loans.
ix) To
the extent not previously paid, outstanding Revolving Loans shall be due and
payable on the Revolving Facility Maturity Date.
(b) Prior
to
any repayment of any Loan hereunder, the Borrowers shall select the Borrowing
or
Borrowings to be repaid and shall notify the Administrative Agent by telephone
(confirmed by telecopy) of such selection not later than 1:00 p.m., Local Time,
(i) in the case of an ABR Borrowing, one Business Day before the scheduled
date
of such repayment and (ii) in the case of a Eurocurrency Borrowing, three
Business Days before the scheduled date of such repayment. Each repayment of
a
Borrowing shall be applied to the Revolving Loans included in the repaid
Borrowing such that each Revolving Lender receives its ratable share of such
repayment (based upon the respective Revolving Facility Credit Exposures of
the
Amended
and Restated Revolving Credit Agreement
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Revolving
Lenders at the time of such repayment). Notwithstanding anything to the contrary
in the immediately preceding sentence, prior to any repayment of a Swingline
Loan hereunder, the Borrowers shall select the Borrowing or Borrowings to be
repaid and shall notify the Administrative Agent by telephone (confirmed by
telecopy) of such selection not later than 1:00 p.m., Local Time, on the
scheduled date of such repayment. Repayments of Loans shall be accompanied
by
accrued interest on the amount repaid.
(c) All
payments of interest, fees and reimbursement for expenses pursuant to Section
9.05(a) may, if not paid by the due date, at the option of the Administrative
Agent, be paid from the proceeds of Revolving Loans made hereunder, whether
made
following a request by the Borrowers pursuant to Section 2.01 or a deemed
request as provided in this Section 2.10 (c). Upon the occurrence and during
the
continuance of any Event of Default, the Borrowers hereby irrevocably authorize
the Administrative Agent to charge the Loan Account on the due date for the
purpose of paying interest, fees and reimbursing expenses pursuant to Section
9.05(a) and agree that all such accounts charged shall constitute Revolving
Loans (including Swingline Loans and Agent Advances) and that all such Revolving
Loans so made shall be deemed to have been requested pursuant to Section 2.01
(except the Borrowers shall not be deemed to make any representation or warranty
pursuant to Section 4.01(b) with respect to such Revolving Loans).
SECTION
2.11. Prepayment
of Loans.
x)
The
Borrowers shall have the right at any time and from time to time to prepay
any
Loan in whole or in part, without premium or penalty (but subject to
Section 2.16), in an aggregate principal amount that is an integral
multiple of the Borrowing Multiple and not less than the Borrowing Minimum
or,
if less, the amount outstanding, subject to prior notice in accordance with
Section 2.10(d).
(b) In
the
event and on such occasion that the total Revolving Facility Credit Exposure
exceeds the Borrowing Base (including any reduction in the Borrowing Base as
a
result of a sale or other disposition of Eligible Inventory or Eligible Accounts
outside the ordinary course of business), the Borrowers shall prepay Revolving
Facility Borrowings, Swingline Borrowings or Agent Advances (or, if no such
Borrowings or Agent Advances are outstanding, deposit cash collateral in an
account with the Administrative Agent pursuant to Section 2.05(j)) in an
aggregate amount equal to such excess.
(c) In
the
event and on such occasion as the Revolving L/C-BA Exposure exceeds (i) the
Letter of Credit Sublimit or (ii) the Borrowing Base, the Borrowers shall
deposit cash collateral in an account with the Administrative Agent pursuant
to
Section 2.05(j) in an amount equal to such excess.
SECTION
2.12. Fees.
xi)
The
Borrowers agree to pay to each Lender (other than any Defaulting Lender),
through the Administrative Agent, on the fifth Business Day of each calendar
quarter and on the Revolving Facility Maturity Date and, if earlier, on the
date
on which the Revolving Facility Commitments of all the Lenders shall be
terminated as provided herein, a commitment fee (a “Commitment
Fee”)
on the
daily amount of the Available Unused Commitment of such Lender during the
preceding quarter (or other period commencing with the Closing Date or ending
with the date on which the last of the Commitments of such Lender shall be
terminated) at a rate equal to (i) if the average daily amount of the aggregate
Available
Amended
and Restated Revolving Credit Agreement
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Unused
Commitments of all Lenders during such period is less than 50% of Revolving
Facility Commitments, 0.25% per annum, and (ii) otherwise, 0.30% per annum.
All
Commitment Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days. For the purpose of calculating any Lender’s
Commitment Fee, the outstanding Swingline Loans during the period for which
such
Lender’s Commitment Fee is calculated shall be deemed to be zero. The Commitment
Fee due to each Lender shall commence to accrue on the Closing Date and shall
cease to accrue on the date on which the last of the Commitments of such Lender
shall be terminated as provided herein.
(b) The
Borrowers from time to time agree to pay (i) to each Revolving Lender (other
than any Defaulting Lender), through the Administrative Agent, on the fifth
Business Day of each calendar quarter and on the Revolving Facility Maturity
Date and, if earlier, on the date on which the Revolving Facility Commitments
of
all the Lenders shall be terminated as provided herein, a fee (an “L/C
-
BA Participation Fee”)
on
such Lender’s Pro Rata Share of the daily aggregate Revolving L/C - BA Exposure
(excluding the portion thereof attributable to unreimbursed L/C - BA
Disbursements) during the preceding quarter (or shorter period commencing with
the Closing Date or ending with the Revolving Facility Maturity Date or the
date
on which the Revolving Facility Commitments shall be terminated) at the rate
per
annum equal to the Applicable Margin for Eurocurrency Revolving Facility
Borrowings on such payment date, and (ii) to the Issuing Bank, on the fifth
Business Day of each calendar quarter and on the Revolving Facility Maturity
Date and, if earlier, on the date on which the Revolving Facility Commitments
of
all the Lenders shall be terminated as provided herein, a fronting fee in
respect of each Letter of Credit issued by such Issuing Bank and outstanding
during the preceding quarter (or shorter period commencing with the Closing
Date
or ending with the Revolving Facility Maturity Date or the date on which the
Revolving Facility Commitments shall be terminated) at a rate per annum equal
to
1/8 of 1% per annum of the stated amount of such Letter of Credit, plus (y)
in
connection with the issuance, amendment or transfer of any such Letter of Credit
or any L/C - BA Disbursement thereunder, such Issuing Bank’s customary
documentary and processing fees and charges (collectively, “Issuing
Bank Fees”).
All
L/C Participation Fees and Issuing Bank Fees that are payable on a per annum
basis shall be computed on the basis of the actual number of days elapsed in
a
year of 360 days.
(c) The
Borrowers agree to pay to the Administrative Agent and the Joint Lead Arrangers,
for the account of the Administrative Agent and the Joint Lead Arrangers, as
the
case may be, the fees set forth in the Fee Letter, as amended, restated,
supplemented or otherwise modified from time to time, at the times specified
therein (the “Administrative
Agent Fees”).
(d) All
Fees
shall be paid on the dates due, in immediately available funds, to the
Administrative Agent for distribution, if and as appropriate, among the Lenders,
except that Issuing Bank Fees shall be paid directly to the applicable Issuing
Banks. Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION
2.13. Interest.
xii)
The
Loans comprising each ABR Borrowing (including each Swingline Loan and each
Agent Advance) shall bear interest at the ABR plus the Applicable
Margin.
Amended
and Restated Revolving Credit Agreement
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(b) The
Loans
comprising each Eurocurrency Borrowing shall bear interest at the Adjusted
LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable
Margin.
(c) Notwithstanding
the foregoing, if any principal of or interest on any Loan or any Fees or other
amount payable by the Borrowers hereunder is not paid when due, whether at
stated maturity, upon acceleration or otherwise, such overdue amount shall
bear
interest, after as well as before judgment, at a rate per annum equal to (i)
in
the case of overdue principal of any Loan, 2% plus the rate otherwise applicable
to such Loan as provided in the preceding paragraphs of this Section or
(ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans
as provided in paragraph (a) of this Section;
provided,
that
this paragraph (c) shall not apply to any Event of Default that has been
waived by the Lenders pursuant to Section 9.08.
(d) Accrued
interest on each Loan shall be payable in arrears (i) on each Interest Payment
Date for such Loan, and (ii) upon termination of the Revolving Facility
Commitments; provided,
that
(A) interest accrued pursuant to paragraph (c) of this Section shall
be payable on demand, (B) in the event of any repayment or prepayment of any
Loan (other than a prepayment of an ABR Revolving Loan prior to the end of
the
Availability Period), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment, and (C) in the
event of any conversion of any Eurocurrency Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on
the
effective date of such conversion.
(e) All
interest hereunder shall be computed on the basis of a year of 360 days, except
that interest computed by reference to the ABR at times when the ABR is based
on
the “prime rate” shall be computed on the basis of a year of 365 days (or 366
days in a leap year), and in each case shall be payable for the actual number
of
days elapsed (including the first day but excluding the last day). The
applicable ABR, Adjusted LIBO Rate or LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION
2.14. Alternate
Rate of Interest.
If
prior to the commencement of any Interest Period for a Eurocurrency
Borrowing:
(a) the
Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining
the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period; or
(b) the
Administrative Agent is advised by the Required Lenders that the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period will not
adequately and fairly reflect the cost to such Lenders of making or maintaining
their Loans included in such Borrowing for such Interest Period;
then
the
Administrative Agent shall give notice thereof to the Company and the Lenders
by
telephone or telecopy as promptly as practicable thereafter and, until the
Administrative Agent notifies the Company and the Lenders that the circumstances
giving rise to such notice no longer
Amended
and Restated Revolving Credit Agreement
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exist,
(i) any Interest Election Request that requests the conversion of any Borrowing
to, or continuation of any Borrowing as, a Eurocurrency Borrowing denominated
in
such currency shall be ineffective and such Borrowing shall be converted to
or
continued as on the last day of the Interest Period applicable thereto an ABR
Borrowing, and (ii) if any Borrowing Request requests a Eurocurrency Borrowing,
such Borrowing shall be made as an ABR Borrowing.
SECTION
2.15. Increased
Costs.
xiii)
If any
Change in Law shall:
(i) impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended
by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO
Rate) or Issuing Bank; or
(ii) impose
on
any Lender or Issuing Bank or the London interbank market any other condition
affecting this Agreement or Eurocurrency Loans made by such Lender or any Letter
of Credit or participation therein;
and
the
result of any of the foregoing shall be to increase the cost to such Lender
of
making or maintaining any Eurocurrency Loan (or of maintaining its obligation
to
make any such Loan) or to increase the cost to such Lender or Issuing Bank
of
participating in, issuing or maintaining any Letter of Credit or to reduce
the
amount of any sum received or receivable by such Lender or Issuing Bank
hereunder (whether of principal, interest or otherwise), then the Borrowers
will
pay to such Lender or Issuing Bank, as applicable, such additional amount or
amounts as will compensate such Lender or Issuing Bank, as applicable, for
such
additional costs incurred or reduction suffered.
(b) If
any
Lender or Issuing Bank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on
such
Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or Issuing
Bank’s holding company, if any, as a consequence of this Agreement or the Loans
made by, or participations in Letters of Credit or Swingline Loans held by,
such
Lender, or the Letters of Credit issued by such Issuing Bank, to a level below
that which such Lender or such Issuing Bank or such Lender’s or such Issuing
Bank’s holding company could have achieved but for such Change in Law (taking
into consideration such Lender’s or such Issuing Bank’s policies and the
policies of such Lender’s or such Issuing Bank’s holding company with respect to
capital adequacy), then from time to time the Borrowers shall pay to such Lender
or such Issuing Bank, as applicable, such additional amount or amounts as will
compensate such Lender or such Issuing Bank or such Lender’s or such Issuing
Bank’s holding company for any such reduction suffered.
(c) A
certificate of a Lender or an Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or Issuing Bank or its holding company,
as
applicable, as specified in paragraph (a) or (b) of this Section 2.15 shall
be delivered to the Company and shall be conclusive absent manifest error.
The
Borrowers shall pay such Lender or Issuing Bank, as applicable, the amount
shown
as due on any such certificate within 10 days after receipt
thereof.
Amended
and Restated Revolving Credit Agreement
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(d) Promptly
after any Lender or any Issuing Bank has determined that it will make a request
for increased compensation pursuant to this Section 2.15, such Lender or
Issuing Bank shall notify the Company thereof. Failure or delay on the part
of
any Lender or Issuing Bank to demand compensation pursuant to this Section
2.15
shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand
such compensation;
provided,
that
the Borrowers shall not be required to compensate a Lender or an Issuing Bank
pursuant to this Section 2.15 for any increased costs or reductions incurred
more than 180 days prior to the date that such Lender or Issuing Bank, as
applicable, notifies the Company of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or Issuing Bank’s intention
to claim compensation therefor;
provided,
further,
that,
if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 180-day period referred to above shall be extended to
include the period of retroactive effect thereof.
(e) The
foregoing provisions of this Section 2.15 shall not apply in the case of any
Change in Law in respect of Taxes, which shall instead be governed by Section
2.17.
SECTION
2.16. Break
Funding Payments.
In the
event of (a) the payment of any principal of any Eurocurrency Loan other than
on
the last day of an Interest Period applicable thereto (including as a result
of
an Event of Default), (b) the conversion of any Eurocurrency Loan other than
on
the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Eurocurrency Loan on the date specified
in any notice delivered pursuant hereto or (d) the assignment of any
Eurocurrency Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by a Borrower pursuant to Section 2.19,
then, in any such event, the Borrowers shall compensate each Lender for the
loss, cost and expense attributable to such event. In the case of a Eurocurrency
Loan, such loss, cost or expense to any Lender shall be deemed to be the amount
determined by such Lender (it being understood that the deemed amount shall
not
exceed the actual amount) to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Loan had
such
event not occurred, at the Adjusted LIBO Rate that would have been applicable
to
such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue a Eurocurrency Loan, for the period that would have been
the
Interest Period for such Loan), over (ii) the amount of interest which would
accrue on such principal amount for such period at the interest rate which
such
Lender would bid were it to bid, at the commencement of such period, for
deposits in dollars of a comparable amount and period from other banks in the
Eurodollar market. A certificate of any Lender setting forth any amount or
amounts that such Lender is entitled to receive pursuant to this Section 2.16
shall be delivered to the Company and shall be conclusive absent manifest error.
The Borrowers shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof.
SECTION
2.17. Taxes.
xiv)
Any and
all payments by or on account of any obligation of any Loan Party hereunder
shall be made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes;
provided,
that if
a Loan Party shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary
so
that after making all required deductions (including deductions applicable
to
additional sums payable under this Section) the Administrative Agent, any Lender
or any Issuing Bank, as applicable, receives an amount equal to the sum it
would
have received
Amended
and Restated Revolving Credit Agreement
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had
no
such deductions been made, (ii) such Loan Party shall make such deductions
and
(iii) such Loan Party shall timely pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In
addition, the Loan Parties shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) Each
Loan
Party shall indemnify the Administrative Agent, each Lender and each Issuing
Bank, within 10 days after written demand therefor, for the full amount of
any
Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender
or such Issuing Bank, as applicable, on or with respect to any payment by or
on
account of any obligation of such Loan Party hereunder (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) and any reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability delivered to such
Loan Party by a Lender or an Issuing Bank, or by the Administrative Agent on
its
own behalf, on behalf of another Agent or on behalf of a Lender or an Issuing
Bank, shall be conclusive absent manifest error.
(d) As
soon
as practicable after any payment of Indemnified Taxes or Other Taxes by a Loan
Party to a Governmental Authority, such Loan Party shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Any
Lender that is entitled to an exemption from or reduction of withholding Tax
under the law of the jurisdiction in which any Borrower is located, or any
treaty to which such jurisdiction is a party, with respect to payments under
this Agreement shall deliver to the Company (with a copy to the Administrative
Agent), to the extent such Lender is legally entitled to do so, at the time
or
times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law as may reasonably be requested by
the
Company to permit such payments to be made without such withholding Tax or
at a
reduced rate;
provided,
that no
Lender shall have any obligation under this paragraph (e) with respect to
any withholding Tax imposed by any jurisdiction other than the United States
if
in the reasonable judgment of such Lender such compliance would subject such
Lender to any material unreimbursed cost or expense or would otherwise be
disadvantageous to such Lender in any material respect.
(f) Each
Lender shall deliver to the Company and the Administrative Agent on the date
on
which such Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the reasonable request of the Company or the Administrative
Agent), two original copies of whichever of the following is applicable: (i)
duly completed copies of Internal Revenue Service Form W-8BEN (or any subsequent
versions thereof or successors thereto), claiming eligibility for benefits
of an
income tax treaty to which the United States of America is a party, (ii) duly
completed copies of Internal Revenue Service Form W-8ECI (or any subsequent
versions thereof or successors thereto), (iii) in the case of a Lender claiming
the
Amended
and Restated Revolving Credit Agreement
-80-
benefits
of the exemption for portfolio interest under section 871(h) or 881(c) of
the Code, (x) a certificate to the effect that, for United States federal income
tax purposes, such Lender is not (A) a “bank” within the meaning of
section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of any
Borrower within the meaning of section 871(h)(3) or 881(c)(3)(B) of the
Code, or (C) a “controlled foreign corporation” described in
section 881(c)(3)(C) of the Code and that, accordingly, such Lender
qualifies for such exemption and (y) duly completed copies of Internal Revenue
Service Form W-8BEN (or any subsequent versions thereof or successors thereto),
(iv) duly completed copies of Internal Revenue Service Form W-8IMY, together
with forms and certificates described in clauses (i) through (iii) above (and
additional Form W-8IMYs) as may be required or (v) any other form prescribed
by
applicable law as a basis for claiming exemption from or a reduction in United
States federal withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit the Borrowers
to
determine the withholding or deduction required to be made. In addition, in
each
of the foregoing circumstances, each Lender shall deliver such forms, if legally
entitled to deliver such forms, promptly upon the obsolescence, expiration
or
invalidity of any form previously delivered by such Lender. Each Lender shall
promptly notify the Company at any time it determines that it is no longer
in a
position to provide any previously delivered certificate to the Company (or
any
other form of certification adopted by the United States of America or other
taxing authorities for such purpose). In addition, each Lender shall deliver
to
the Company and the Administrative Agent two copies of Internal Revenue Service
Form W-9 (or any subsequent versions thereof or successors thereto) on or before
the date such Lender becomes a party and upon the expiration of any form
previously delivered by such Lender. Notwithstanding any other provision of
this
paragraph, a Lender shall not be required to deliver any form pursuant to this
paragraph that such Lender is not legally able to deliver.
(g) If
the
Administrative Agent or a Lender receives a refund of any Indemnified Taxes
or
Other Taxes as to which it has been indemnified by a Loan Party or with respect
to which such Loan Party has paid additional amounts pursuant to this
Section 2.17, it shall pay over such refund to such Loan Party (but only to
the extent of indemnity payments made, or additional amounts paid, by such
Loan
Party under this Section 2.17 with respect to the Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent or such Lender (including any Taxes imposed with respect
to
such refund) as is determined by the Administrative Agent or such Lender, as
applicable, in good faith and in its sole discretion, and without interest
(other than any interest paid by the relevant Governmental Authority with
respect to such refund);
provided,
that
such Loan Party, upon the request of the Administrative Agent or such Lender,
agrees to repay as soon as reasonably practicable the amount paid over to such
Loan Party (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender
in
the event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. This Section 2.17(g) shall not be
construed to require the Administrative Agent or any Lender to make available
its Tax returns (or any other information relating to its Taxes which it deems
confidential) to the Loan Parties or any other person.
SECTION
2.18. Payments
Generally; Pro Rata Treatment; Sharing of Set-offs.
xv)
Unless
otherwise specified, each Borrower shall make each payment required to be made
by it hereunder (whether of principal, interest, fees or reimbursement of L/C
-
BA Disbursements, or of amounts payable under Section 2.15, 2.16, or 2.17,
or otherwise) prior to 2:00 p.m., Local
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Time,
on
the date when due, in immediately available funds, without condition or
deduction for any defense, recoupment, set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent to the applicable account designated
to the Borrowers by the Administrative Agent, except payments to be made
directly to the applicable Issuing Bank or the Swingline Lender as expressly
provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17
and 9.05 shall be made directly to the persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for
the
account of any other person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not
a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments under
the Loan Documents shall be made in Dollars. Any payment required to be made
by
the Administrative Agent hereunder shall be deemed to have been made by the
time
required if the Administrative Agent shall, at or before such time, have taken
the necessary steps to make such payment in accordance with the regulations
or
operating procedures of the clearing or settlement system used by the
Administrative Agent to make such payment.
(b) If
at any
time insufficient funds are received by and available to the Administrative
Agent from the Borrowers to pay fully all amounts of principal, unreimbursed
L/C
- BA Disbursements, interest and fees then due from the Borrowers hereunder,
such funds shall be applied (i) first, towards payment of interest and fees
then
due from the Borrowers hereunder, ratably among the parties entitled thereto
in
accordance with the amounts of interest and fees then due to such parties,
and
(ii) second, towards payment of principal and unreimbursed L/C - BA
Disbursements then due from the Borrowers hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed
L/C - BA Disbursements then due to such parties.
(c) If
any
Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its
Revolving Loans or participations in L/C - BA Disbursements or Swingline Loans
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Revolving Loans and participations in L/C - BA
Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in L/C - BA Disbursements and Swingline
Loans
of other Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective Revolving Loans
and participations in L/C - BA Disbursements and Swingline Loans;
provided,
that
(i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded
and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph (c) shall not be
construed to apply to any payment made by the Borrowers pursuant to and in
accordance with the express terms of this Agreement or any payment obtained
by a
Lender as consideration for the assignment of or sale of a participation in
any
of its Loans or participations in L/C - BA Disbursements to any assignee or
participant, other than to the Borrowers or any Subsidiary or
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Affiliate
thereof (as to which the provisions of this paragraph (c) shall apply).
Each Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Borrower in the amount
of such participation.
(d) Unless
the Administrative Agent shall have received notice from the Borrowers prior
to
the date on which any payment is due to the Administrative Agent for the account
of the Lenders or the applicable Issuing Bank hereunder that the Borrowers
will
not make such payment, the Administrative Agent may assume that the Borrowers
have made such payment on such date in accordance herewith and may, in reliance
upon such assumption, distribute to the Lenders or the applicable Issuing Bank,
as applicable, the amount due. In such event, if the Borrowers have not in
fact
made such payment, then each of the Lenders or the applicable Issuing Bank,
as
applicable, severally agrees to repay to the Administrative Agent forthwith
on
demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed
to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If
any
Lender shall fail to make any payment required to be made by it pursuant to
Section 2.06(b) or 2.18(d), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for the account of such Lender to satisfy
such Lender’s obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION
2.19. Mitigation
Obligations; Replacement of Lenders.
xvi) If
any Lender requests compensation under Section 2.15, or if the Borrowers
are required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different Lending Office
for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or Affiliates, if, in the
reasonable judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as
applicable, in the future and (ii) would not subject such Lender to any material
unreimbursed cost or expense and would not otherwise be disadvantageous to
such
Lender in any material respect. The Borrowers hereby agree to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If
any
Lender requests compensation under Section 2.15, or if the Borrowers are
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, or is a
Defaulting Lender, then the Borrowers may, at their sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender
to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment);
provided,
that
(i) the
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Borrowers
shall have received the prior written consent of the Administrative Agent (and,
if in respect of any Revolving Facility Commitment or Revolving Loan, the
Swingline Lender and the Issuing Bank), which consent shall not unreasonably
be
withheld, (ii) such Lender shall have received payment of an amount equal to
the
outstanding principal of its Loans and participations in L/C - BA Disbursements
and Swingline Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrowers (in the
case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.15 or payments
required to be made pursuant to Section 2.17, such assignment will result
in a reduction in such compensation or payments. Nothing in this
Section 2.19 shall be deemed to prejudice any rights that the Borrowers may
have against any Lender that is a Defaulting Lender.
(c) If
any
Lender (such Lender, a “Non-Consenting
Lender”)
has
failed to consent to a proposed amendment, waiver, discharge or termination
which pursuant to the terms of Section 9.08 requires the consent of all of
the Lenders affected and with respect to which the Required Lenders shall have
granted their consent, then the Borrowers shall have the right (unless such
Non-Consenting Lender grants such consent) to replace such Non-Consenting Lender
by deeming such Non-Consenting Lender to have assigned its Loans, and its
Commitments hereunder to one or more Assignees reasonably acceptable to (i)
the
Administrative Agent and (ii) if in respect of any Revolving Facility Commitment
or Revolving Loan, the Swingline Lender and the Issuing Bank; provided,
that:
(a) all Obligations of the Borrowers owing to such Non-Consenting Lender being
replaced shall be paid in full to such Non-Consenting Lender concurrently with
such assignment, and (b) the replacement Lender shall purchase the foregoing
by
paying to such Non-Consenting Lender a price equal to the principal amount
thereof plus accrued and unpaid interest thereon. No action by or consent of
the
Non-Consenting Lender shall be necessary in connection with such assignment,
which shall be immediately and automatically effective upon payment of such
purchase price. In connection with any such assignment, the Borrowers,
Administrative Agent, such Non-Consenting Lender and the replacement Lender
shall otherwise comply with Section 9.04; provided,
that if
such Non-Consenting Lender does not comply with Section 9.04 within three
Business Days after Borrowers’ request, compliance with Section 9.04 shall not
be required to effect such assignment.
SECTION
2.20. Illegality.
If any
Lender reasonably determines that any Change in Law has made it unlawful, or
that any Governmental Authority has asserted after the Closing Date that it
is
unlawful, for any Lender or its applicable Lending Office to make or maintain
any Eurocurrency Loans, then, on notice thereof by such Lender to the Company
through the Administrative Agent, any obligations of such Lender to make or
continue Eurocurrency Loans or to convert ABR Borrowings to Eurocurrency
Borrowings shall be suspended until such Lender notifies the Administrative
Agent and the Company that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, the Borrowers shall upon demand
from such Lender (with a copy to the Administrative Agent), either convert
all
Eurocurrency Borrowings of such Lender to ABR Borrowings, either on the last
day
of the Interest Period therefor, if such Lender may lawfully continue to
maintain such Eurocurrency Borrowings to such day, or immediately, if such
Lender may not lawfully continue to maintain
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such
Loans. Upon any such prepayment or conversion, the Borrowers shall also pay
accrued interest on the amount so prepaid or converted.
SECTION
2.21. Incremental
Commitments.
(a) The Borrowers may, by written notice to the Administrative Agent from
time to time, request Incremental Revolving Facility Commitments in an amount
not to exceed the Incremental Amount from one or more Incremental Revolving
Lenders (which may include any existing Lender) willing to provide such
Incremental Revolving Facility Commitments, as the case may be, in their own
discretion;
provided,
that
(i) each Incremental Revolving Lender shall be subject to the approval of the
Administrative Agent (which approval shall not be unreasonably withheld) unless
such Incremental Revolving Lender is a Lender, and (ii) each Incremental
Revolving Facility Commitment shall be on the same terms as the existing
Revolving Facility Commitments and in all respects shall become a part of the
Revolving Facility hereunder on such terms. Such notice shall set forth (i)
the
amount of the Incremental Revolving Facility Commitments being requested (which
shall be in minimum increments of $5 million and a minimum amount of $25 million
or equal to the remaining Incremental Amount), (ii) the aggregate amount of
Incremental Revolving Facility Commitments, which shall not exceed the
Incremental Amount, and (iii) the date on which such Incremental Revolving
Facility Commitments are requested to become effective (the “Increased
Amount Date”).
(b) The
Borrowers and each Incremental Revolving Lender shall execute and deliver to
the
Administrative Agent an Incremental Assumption Agreement and such other
documentation as the Administrative Agent shall reasonably specify to evidence
the Incremental Revolving Facility Commitment of such Incremental Revolving
Lender. Each of the parties hereto hereby agrees that upon the effectiveness
of
any Incremental Assumption Agreement, this Agreement shall be deemed amended
to
the extent (but only to the extent) necessary to increase the Revolving Facility
by the amount of the Incremental Revolving Loan Commitments evidenced thereby.
Any such deemed amendment may be memorialized in writing by the Administrative
Agent with the Borrowers’ consent (not to be unreasonably withheld) and
furnished to the other parties hereto.
(c) Notwithstanding
the foregoing, no Incremental Revolving Facility Commitment shall become
effective under this Section 2.21 unless (i) on the date of such effectiveness,
the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be
satisfied and the Administrative Agent shall have received a certificate to
that
effect dated such date and executed by a Responsible Officer of the Company,
and
(ii) the Administrative Agent shall have received legal opinions, board
resolutions and other closing certificates and documentation as required by
the
relevant Incremental Assumption Agreement and, to the extent required by the
Administrative Agent, consistent with those delivered on the Closing Date under
Section 4.02 and such additional documents and filings (including amendments
to
the Mortgages and other Security Documents and title endorsement bringdowns)
as
the Administrative Agent may reasonably require to assure that the Revolving
Loans in respect of Incremental Revolving Facility Commitments are secured
by
the Collateral ratably with all other Revolving Loans.
(d) Each
of
the parties hereto hereby agrees that the Administrative Agent may take any
and
all action as may be reasonably necessary to ensure all Revolving Loans in
respect of Incremental Revolving Facility Commitments, when originally made,
are
included in
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each
Borrowing of outstanding Revolving Loans on a pro
rata
basis.
The Borrowers agree that Section 2.16 shall apply to any conversion of
Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent
to effect the foregoing.
Representations
and Warranties
On
the
date of each Credit Event as provided in Section 4.01, each of Holdings and
each
of the Borrowers represent and warrant to each of the Lenders that:
SECTION
3.01. Organization;
Powers.
Except
as set forth on Schedule 3.01,
each of
Holdings, each Borrower and the Material Subsidiaries (a) is a partnership,
limited liability company or corporation duly organized, validly existing and
in
good standing (or, if applicable in a foreign jurisdiction, enjoys the
equivalent status under the laws of any jurisdiction of organization outside
the
United States) under the laws of the jurisdiction of its organization, (b)
has
all requisite power and authority to own its property and assets and to carry
on
its business as now conducted, (c) is qualified to do business in each
jurisdiction where such qualification is required, except where the failure
so
to qualify would not reasonably be expected to have a Material Adverse Effect,
and (d) has the power and authority to execute, deliver and perform its
obligations under each of the Loan Documents and each other agreement or
instrument contemplated thereby to which it is or will be a party and, in the
case of the Borrowers, to borrow and otherwise obtain credit
hereunder.
SECTION
3.02. Authorization.
The
execution, delivery and performance by Holdings, each Borrower and each of
the
Subsidiary Loan Parties of each of the Loan Documents to which it is a party,
and the borrowings hereunder and the transactions forming a part of the
Transactions (a) have been duly authorized by all corporate, stockholder,
partnership or limited liability company action required to be obtained by
Holdings, such Borrower and such Subsidiary Loan Parties and (b) will not (i)
violate (A) any provision of law, statute, rule or regulation, or of the
certificate or articles of incorporation or other constitutive documents
(including any partnership, limited liability company or operating agreements)
or by-laws of Holdings, any such Borrower or any such Subsidiary Loan Party,
(B)
any applicable order of any court or any rule, regulation or order of any
Governmental Authority or (C) any provision of any indenture, certificate of
designation for preferred stock, agreement or other instrument to which
Holdings, any such Borrower or any such Subsidiary Loan Party is a party or
by
which any of them or any of their property is or may be bound, (ii) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under, give rise to a right of or result in
any
cancellation or acceleration of any right or obligation (including any payment)
or to a loss of a material benefit under any such indenture, certificate of
designation for preferred stock, agreement or other instrument, where any such
conflict, violation, breach or default referred to in clause (i) or (ii) of
this Section 3.02(b), would reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect, or (iii) result in the creation
or
imposition of any Lien upon or with respect to any property or assets now owned
or hereafter acquired by Holdings, any such Borrower or any such Subsidiary
Loan
Party, other than the Liens created by the Loan Documents and Permitted
Liens.
Amended
and Restated Revolving Credit Agreement
-86-
SECTION
3.03. Enforceability.
This
Agreement has been duly executed and delivered by Holdings and the Borrowers
and
constitutes, and each other Loan Document when executed and delivered by each
Loan Party that is party thereto will constitute, a legal, valid and binding
obligation of such Loan Party enforceable against each such Loan Party in
accordance with its terms, subject to (i) the effects of bankruptcy, insolvency,
moratorium, reorganization, fraudulent conveyance or other similar laws
affecting creditors’ rights generally, (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and (iii) implied covenants of good faith and fair
dealing.
SECTION
3.04. Governmental
Approvals.
No
action, consent or approval of, registration or filing with or any other action
by any Governmental Authority is or will be required in connection with the
Transactions, the perfection or maintenance of the Liens created under the
Security Documents or the exercise by any Agent or any Lender of its rights
under the Loan Documents or the remedies in respect of the Collateral, except
for (a) the filing of Uniform Commercial Code financing statements, (b) filings
with the United States Patent and Trademark Office and the United States
Copyright Office and comparable offices in foreign jurisdictions and equivalent
filings in foreign jurisdictions, (c) recordation of the Mortgages, (d) such
as
have been made or obtained and are in full force and effect, (e) such actions,
consents and approvals the failure of which to be obtained or made would not
reasonably be expected to have a Material Adverse Effect and (f) filings or
other actions listed on Schedule 3.04.
SECTION
3.05. Financial
Statements.
xvii)
The
unaudited pro forma consolidated
financial information, (the “Pro
Forma Financial Statements”)
and
pro forma adjusted
EBITDA (the “Pro
Forma Adjusted EBITDA”),
for
the twelve months ended on or about December 30, 2006, copies of which have
heretofore been furnished to each Lender (via inclusion on page 38 the
Information Memorandum), have been prepared giving effect (as if such events
had
occurred on such date) to the Transactions. Each of the Pro Forma Financial
Statements and the Pro Forma Adjusted EBITDA has been prepared in good faith
based on assumptions believed by the Borrower to have been reasonable as of
the
date of delivery thereof (it being understood that such assumptions are based
on
good faith estimates of certain items and that the actual amount of such items
on the Closing Date is subject to change), and presents fairly in all material
respects on a Pro Forma Basis the estimated financial position of the Borrower
and its consolidated Subsidiaries as at December 30, 2006, assuming that the
Transactions had actually occurred at such date, and the results of operations
of Borrower and its consolidated subsidiaries for the twelve-month period ended
December 30, 2006, assuming that the Transactions had actually occurred on
the
first day of such twelve-month period.
(b) The
audited combined balance sheets of each of Covalence (or its predecessor) and
Xxxxx (or its predecessor) as at the end of 2006, 2005 and 2004 fiscal years,
and the related audited combined statements of income, stockholders’ equity and
cash flows for such fiscal years, reported on by and accompanied by a report
from Deloitte & Touche LLP, and Ernst & Young LLP, respectively, copies
of which have heretofore been furnished to each Lender, present fairly in all
material respects the combined financial position of Covalence or Xxxxx, as
applicable, as at such date and the combined results of operations,
shareholders’ equity and cash flows of Covalence or Xxxxx, as applicable, for
the years then ended.
Amended
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SECTION
3.06. No
Material Adverse Effect.
Since
December 30, 2006, there has been no event, development or circumstance that
has
or would reasonably be expected to have a Material Adverse Effect.
SECTION
3.07. Title
to Properties; Possession Under Leases.
xviii) Each
of Holdings, the Borrowers and the Subsidiaries has valid fee simple title
to,
or valid leasehold interests in, or easements or other limited property
interests in, all its Real Properties (including all Mortgaged Properties)
and
has valid title to its personal property and assets, in each case, except for
Permitted Liens and except for defects in title that do not materially interfere
with its ability to conduct its business as currently conducted or to utilize
such properties and assets for their intended purposes and except where the
failure to have such title would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. All such properties
and assets are free and clear of Liens, other than Permitted Liens.
(b) Each
of
the Borrowers and the Subsidiaries has complied with all obligations under
all
leases to which it is a party, except where the failure to comply would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, and all such leases are in full force and effect, except leases
in respect of which the failure to be in full force and effect would not
reasonably be expected to have a Material Adverse Effect. Except as set forth
on
Schedule 3.07(b),
each of
the Borrowers and each of the Subsidiaries enjoys peaceful and undisturbed
possession under all such leases, other than leases in respect of which the
failure to enjoy peaceful and undisturbed possession would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect.
(c) As
of the
Closing Date, none of the Borrowers or the Subsidiaries has received any notice
of any pending or contemplated condemnation proceeding affecting any material
portion of the Mortgaged Properties or any sale or disposition thereof in lieu
of condemnation that remains unresolved as of the Closing Date.
(d) None
of
the Borrowers or the Subsidiaries is obligated on the Closing Date under any
right of first refusal, option or other contractual right to sell, assign or
otherwise dispose of any Mortgaged Property or any interest therein, except
as
permitted under Section 6.02 or 6.05.
SECTION
3.08. Subsidiaries.
xix) Schedule 3.08(a)
sets
forth as of the Closing Date the name and jurisdiction of incorporation,
formation or organization of each subsidiary of Holdings and, as to each such
subsidiary, the percentage of each class of Equity Interests owned by Holdings
or by any such subsidiary.
(b) As
of the
Closing Date, there are no outstanding subscriptions, options, warrants, calls,
rights or other agreements or commitments (other than stock options and stock
appreciation rights granted to employees or directors and directors’ qualifying
shares) of any nature relating to any Equity Interests of Holdings, the
Borrowers or any of the Subsidiaries, except rights of employees to purchase
Equity Interests of Holdings in connection with the Transactions or as set
forth
on Schedule 3.08(b).
Amended
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SECTION
3.09. Litigation;
Compliance with Laws.
xx) There
are no actions, suits or proceedings at law or in equity or, to the knowledge
of
the Borrowers, investigations by or on behalf of any Governmental Authority
or
in arbitration now pending, or, to the knowledge of Holdings or the Borrowers,
threatened in writing against or affecting Holdings or the Borrowers or any
of
the Subsidiaries or any business, property or rights of any such person which
would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
(b) None
of
Holdings, the Borrowers, the Subsidiaries and their respective properties or
assets is in violation of (nor will the continued operation of their material
properties and assets as currently conducted violate) any law, rule or
regulation (including any zoning, building, ordinance, code or approval or
any
building permit, but excluding any Environmental Laws, which are subject to
Section 3.16) or any restriction of record or agreement affecting any
Mortgaged Property, or is in default with respect to any judgment, writ,
injunction or decree of any Governmental Authority, where such violation or
default would reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect.
SECTION
3.10. Federal
Reserve Regulations.
xxi) None
of Holdings, the Borrowers or the Subsidiaries is engaged principally, or as
one
of its important activities, in the business of extending credit for the purpose
of purchasing or carrying Margin Stock.
(b) No
part
of the proceeds of any Loan will be used, whether directly or indirectly, and
whether immediately, incidentally or ultimately, (i) to purchase or carry Margin
Stock or to extend credit to others for the purpose of purchasing or carrying
Margin Stock or to refund indebtedness originally incurred for such purpose,
or
(ii) for any purpose that entails a violation of, or that is inconsistent with,
the provisions of the Regulations of the Board, including Regulation U or
Regulation X.
SECTION
3.11. Investment
Company Act.
None of
Holdings, the Borrowers and the Subsidiaries is an “investment company” as
defined in, or subject to regulation under, the Investment Company Act of 1940,
as amended.
SECTION
3.12. Use
of
Proceeds.
The
Borrowers will use the proceeds of the Revolving Loans, together with other
cash, to consummate the Refinancing, for general corporate purposes and to
pay
the Transaction Expenses.
SECTION
3.13. Tax
Returns.
Except
as set forth on Schedule 3.13:
(a) Except
as
would not, individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect, (i) each of Holdings, the Borrowers and the
Subsidiaries has filed or caused to be filed all federal, state, local and
non-U.S. Tax returns required to have been filed by it and (ii) taken as a
whole, and each such Tax return is true and correct;
(b) Each
of
Holdings, the Borrowers and the Subsidiaries has timely paid or caused to be
timely paid all Taxes shown to be due and payable by it on the returns referred
to in clause (a) and all other Taxes or assessments (or made adequate
provision (in accordance with GAAP) for the payment of all Taxes due) with
respect to all periods
Amended
and Restated Revolving Credit Agreement
-89-
or
portions thereof ending on or before the Closing Date (except Taxes or
assessments that are being contested in good faith by appropriate proceedings
in
accordance with Section 5.03 and for which Holdings, the Borrowers or any
of the Subsidiaries (as the case may be) has set aside on its books adequate
reserves in accordance with GAAP), which Taxes, if not paid or adequately
provided for, would, individually or in the aggregate, reasonably be expected
to
have a Material Adverse Effect; and
(c) Other
than as would not be, individually or in the aggregate, reasonably expected
to
have a Material Adverse Effect: as of the Closing Date, with respect to each
of
Holdings, the Borrowers and the Subsidiaries, there are no claims being asserted
in writing with respect to any Taxes.
SECTION
3.14. No
Material Misstatements.
xxii) All
written information (other than the Projections, estimates and information
on
Schedule 4.02 or estimates and information of a general economic nature or
general industry nature) (the “Information”)
concerning Holdings, the Borrowers, the Subsidiaries, the Transactions and
any
other transactions contemplated hereby included in the Information Memorandum
or
otherwise prepared by or on behalf of the foregoing or their representatives
and
made available to any Lenders or the Administrative Agent in connection with
the
Transactions or the other transactions contemplated hereby, when taken as a
whole, was true and correct in all material respects, as of the date such
Information was furnished to the Lenders and as of the Closing Date and did
not,
taken as a whole, contain any untrue statement of a material fact as of any
such
date or omit to state a material fact necessary in order to make the statements
contained therein, taken as a whole, not materially misleading in light of
the
circumstances under which such statements were made.
(b) The
Projections and estimates and information of a general economic nature prepared
by or on behalf of the Borrowers or any of their representatives and that have
been made available to any Lenders or the Administrative Agent in connection
with the Transactions or the other transactions contemplated hereby (i) have
been prepared in good faith based upon assumptions believed by the Borrowers
to
be reasonable as of the date thereof (it being understood that actual results
may vary materially from the Projections), as of the date such Projections
and
estimates were furnished to the Lenders and as of the Closing Date, and (ii)
as
of the Closing Date, have not been modified in any material respect by the
Borrowers.
SECTION
3.15. Employee
Benefit Plans.
xxiii) Except
as would not reasonably be expected, individually or in the aggregate, to have
a
Material Adverse Effect: (i) each Plan is in compliance in all material respects
with the applicable provisions of ERISA and the Code; (ii) no Reportable Event
has occurred during the past five years as to which the Borrowers, Holdings,
any
of their Subsidiaries or any ERISA Affiliate was required to file a report
with
the PBGC, other than reports that have been filed; (iii) no Plan has any
Unfunded Pension Liability in excess of $50 million; (iv) no ERISA Event has
occurred or is reasonably expected to occur; and (v) none of the Borrowers,
Holdings, the Subsidiaries and the ERISA Affiliates (A) has received any written
notification that any Multiemployer Plan is in reorganization or has been
terminated within the meaning of Title IV of ERISA, or has knowledge that any
Multiemployer Plan is reasonably expected to be in reorganization or to be
terminated or (B) has incurred or is reasonably expected to incur any Withdrawal
Liability to any Multiemployer Plan.
Amended
and Restated Revolving Credit Agreement
-90-
(b) Each
of
Holdings, the Borrowers and the Subsidiaries is in compliance (i) with all
applicable provisions of law and all applicable regulations and published
interpretations thereunder with respect to any employee pension benefit plan
or
other employee benefit plan governed by the laws of a jurisdiction other than
the United States and (ii) with the terms of any such plan, except, in each
case, for such noncompliance that would not reasonably be expected to have
a
Material Adverse Effect.
SECTION
3.16. Environmental
Matters.
Except
as set forth in Schedule 3.16
and
except as to matters that would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect: (i) no written notice, request
for information, order, complaint or penalty has been received by the Borrowers
or any of their Subsidiaries, and there are no judicial, administrative or
other
actions, suits or proceedings pending or, to such Borrower’s knowledge,
threatened which allege a violation of or liability under any Environmental
Laws, in each case relating to the Borrowers or any of their Subsidiaries,
(ii)
each of the Borrowers and their Subsidiaries has all environmental permits,
licenses and other approvals necessary for its operations to comply with all
applicable Environmental Laws and is, and during the term of all applicable
statutes of limitation, has been, in compliance with the terms of such permits,
licenses and other approvals and with all other applicable Environmental Laws,
(iii) to the Borrowers’ knowledge, no Hazardous Material is located at, on or
under any property currently owned, operated or leased by the Borrowers or
any
of their Subsidiaries that would reasonably be expected to give rise to any
cost, liability or obligation of the Borrowers or any of their Subsidiaries
under any Environmental Laws, and no Hazardous Material has been generated,
owned, treated, stored, handled or controlled by the Borrowers or any of their
Subsidiaries and transported to or Released at any location in a manner that
would reasonably be expected to give rise to any cost, liability or obligation
of the Borrowers or any of their Subsidiaries under any Environmental Laws,
and
(iv) there are no agreements in which the Borrowers or any of their Subsidiaries
have expressly assumed or undertaken responsibility for any known or reasonably
likely liability or obligation of any other person arising under or relating
to
Environmental Laws, which in any such case has not been made available to the
Administrative Agent prior to the date hereof.
SECTION
3.17. Security
Documents.
xxiv) The
Collateral Agreement is effective to create in favor of the Collateral Agent
(for the benefit of the Secured Parties) a legal, valid and enforceable security
interest in the Collateral described therein and proceeds thereof. In the case
of the Pledged Collateral described in the Collateral Agreement, when
certificates or promissory notes, as applicable, representing such Pledged
Collateral are delivered to the Collateral Agent, and in the case of the other
Collateral described in the Collateral Agreement (other than the Intellectual
Property (as defined in the Collateral Agreement)), when financing statements
and other filings specified in the Perfection Certificate are filed in the
offices specified in the Perfection Certificate, the Collateral Agent (for
the
benefit of the Secured Parties) shall have a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in
such
Collateral and, subject to Section 9-315 of the New York Uniform Commercial
Code, the proceeds thereof, as security for the Obligations to the extent
perfection can be obtained by filing Uniform Commercial Code financing
statements, in each case prior and superior in right to any other person (except
Permitted Liens).
Amended
and Restated Revolving Credit Agreement
-91-
(b) When
the
Collateral Agreement or a summary thereof is properly filed in the United States
Patent and Trademark Office and the United States Copyright Office, and, with
respect to Collateral in which a security interest cannot be perfected by such
filings, upon the proper filing of the financing statements referred to in
paragraph (a) above, the Collateral Agent (for the benefit of the Secured
Parties) shall have a fully perfected Lien on, and security interest in, all
right, title and interest of the Loan Parties thereunder in all domestic
Intellectual Property, in each case prior and superior in right to any other
person (it being understood that subsequent recordings in the United States
Patent and Trademark Office and the United States Copyright Office may be
necessary to perfect a lien on registered trademarks and patents, trademark
and
patent applications and registered copyrights acquired by the grantors after
the
Closing Date) (except Permitted Liens).
(c) Each
Foreign Pledge Agreement, if any, shall be effective to create in favor of
the
Collateral Agent, for the benefit of the Secured Parties, a legal, valid and
enforceable security interest in the Collateral described therein and proceeds
thereof to the fullest extent permissible under applicable law. In the case
of
the Pledged Collateral described in a Foreign Pledge Agreement, when
certificates representing such Pledged Collateral (if any) are delivered to
the
Collateral Agent, the Collateral Agent (for the benefit of the Secured Parties)
shall have a fully perfected Lien on, and security interest in, all right,
title
and interest of the Loan Parties in such Collateral and the proceeds thereof,
as
security for the Obligations, in each case prior and superior in right to any
other person.
(d) The
Mortgages (if any) executed and delivered on or before the Closing Date are,
and
the Mortgages to be executed and delivered after the Closing Date pursuant
to
Section 5.10 shall be, effective to create in favor of the Collateral Agent
(for the benefit of the Secured Parties) a valid Lien on all of the Loan
Parties’ right, title and interest in and to the Mortgaged Property thereunder
and the proceeds thereof, and when such Mortgages are filed or recorded in
the
proper real estate filing or recording offices, the Collateral Agent (for the
benefit of the Secured Parties) shall have a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in
such
Mortgaged Property and, to the extent applicable, subject to Section 9-315
of the Uniform Commercial Code, the proceeds thereof, in each case prior and
superior in right to any other person, other than with respect to the rights
of
a person pursuant to Permitted Liens.
(e) Notwithstanding
anything herein (including this Section 3.17) or in any other Loan Document
to
the contrary, other than to the extent set forth in the applicable Foreign
Pledge Agreements, no Borrower or any other Loan Party makes any representation
or warranty as to the effects of perfection or non-perfection, the priority
or
the enforceability of any pledge of or security interest in any Equity Interests
of any Foreign Subsidiary that is not a Loan Party, or as to the rights and
remedies of the Agents or any Lender with respect thereto, under foreign
law.
SECTION
3.18. Location
of Real Property and Leased Premises.
xxv) The
Perfection Certificate lists completely and correctly, in all material respects,
as of the Closing Date all material Real Property owned by Holdings, the
Borrowers and the Subsidiary Loan Parties and the addresses thereof. As of
the
Closing Date, Holdings, the Borrowers and the Subsidiary Loan Parties own in
fee
all the Real Property set forth as being owned by them on the Perfection
Certificate.
Amended
and Restated Revolving Credit Agreement
-92-
(b) The
Perfection Certificate lists completely and correctly in all material respects,
as of the Closing Date, all material real property leased by Holdings, the
Borrowers and the Subsidiary Loan Parties and the addresses thereof. As of
the
Closing Date, Holdings, the Borrowers and the Subsidiary Loan Parties have
in
all material respects valid leases in all the real property set forth as being
leased by them on the Perfection Certificate.
SECTION
3.19. Solvency.
xxvi) Immediately
after giving effect to the Transactions on the Closing Date, (i) the fair value
of the assets of the Company (individually) and Holdings, the Company and its
Subsidiaries on a consolidated basis, at a fair valuation, will exceed the
debts
and liabilities, direct, subordinated, contingent or otherwise, of the Company
(individually) and Holdings, the Company and its Subsidiaries on a consolidated
basis, respectively; (ii) the present fair saleable value of the property of
the
Company (individually) and Holdings, the Company and its Subsidiaries on a
consolidated basis will be greater than the amount that will be required to
pay
the probable liability of the Company (individually) and Holdings, the Company
and its Subsidiaries on a consolidated basis, respectively, on their debts
and
other liabilities, direct, subordinated, contingent or otherwise, as such debts
and other liabilities become absolute and matured; (iii) the Company
(individually) and Holdings, the Company and its Subsidiaries on a consolidated
basis will be able to pay their debts and liabilities, direct, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and
matured; and (iv) the Company (individually) and Holdings, the Company and
its
Subsidiaries on a consolidated basis will not have unreasonably small capital
with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted following the
Closing Date.
(b) On
the
Closing Date, neither Holdings nor any Borrower intends to, and neither Holdings
nor any Borrower believes that it or any of its subsidiaries will, incur debts
beyond its ability to pay such debts as they mature, taking into account the
timing and amounts of cash to be received by it or any such subsidiary and
the
timing and amounts of cash to be payable on or in respect of its Indebtedness
or
the Indebtedness of any such subsidiary.
SECTION
3.20. Labor
Matters.
Except
as, individually or in the aggregate, would not reasonably be expected to have
a
Material Adverse Effect: (a) there are no strikes or other labor disputes
pending or threatened against Holdings, the Borrowers or any of the
Subsidiaries; (b) the hours worked and payments made to employees of Holdings,
the Borrowers and the Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable law dealing with such matters; and (c)
all
payments due from Holdings, the Borrowers or any of the Subsidiaries or for
which any claim may be made against Holdings, the Borrowers or any of the
Subsidiaries, on account of wages and employee health and welfare insurance
and
other benefits have been paid or accrued as a liability on the books of
Holdings, the Borrowers or such Subsidiary to the extent required by GAAP.
Except as, individually or in the aggregate, would not reasonably be expected
to
have a Material Adverse Effect, the consummation of the Transactions will not
give rise to a right of termination or right of renegotiation on the part of
any
union under any material collective bargaining agreement to which Holdings,
the
Borrowers or any of the Subsidiaries (or any predecessor) is a party or by
which
Holdings, the Borrowers or any of the Subsidiaries (or any predecessor) is
bound.
Amended
and Restated Revolving Credit Agreement
-93-
SECTION
3.21. Insurance.
Schedule 3.21
sets
forth a true, complete and correct description of all material insurance
maintained by or on behalf of Holdings, the Borrowers or the Subsidiaries as
of
the Closing Date. As of such date, such insurance is in full force and effect.
SECTION
3.22. No
Default.
No
Default or Event of Default has occurred and is continuing or would result
from
the consummation of the transactions contemplated by this Agreement or any
other
Loan Document.
SECTION
3.23. Intellectual
Property; Licenses, Etc.
Except
as would not reasonably be expected to have a Material Adverse Effect and as
set
forth in Schedule
3.23,
(a) the
Borrowers and each of their Subsidiaries own, or possess the right to use,
all
of the patents, patent rights, trademarks, service marks, trade names,
copyrights and any and all applications or registrations for any of the
foregoing (collectively, “Intellectual
Property Rights”)
that
are reasonably necessary for the operation of their respective businesses,
without conflict with the rights of any other person, (b) to the best knowledge
of the Borrowers, no intellectual property right, proprietary right, product,
process, method, substance, part, or other material now employed, sold or
offered by or contemplated to be employed, sold or offered by the Borrowers
or
their Subsidiaries infringes upon any rights held by any other person, and
(c)
no claim or litigation regarding any of the foregoing is pending or, to the
best
knowledge of the Borrowers, threatened.
SECTION
3.24. Senior
Debt.
The
Obligations constitute “Senior Debt” (or the equivalent thereof) and “Designated
Senior Debt” (or the equivalent thereof) under the Senior Subordinated Notes
Indentures or any Permitted Refinancing Indebtedness in respect of the Senior
Subordinated Notes or such other Indebtedness permitted to be incurred hereunder
constituting subordinated Indebtedness.
SECTION
3.25. Common
Enterprise.
The
successful operation and condition of each of the Loan Parties is enhanced
by
the continued successful performance of the functions of the group of Loan
Parties as a whole. Each of the Loan Parties expects to derive benefit (and
its
board of directors or other governing body has determined that it may reasonably
be expected to derive benefit), directly and indirectly, from successful
operations of Holdings and each of the other Loan Parties. Each Loan Party
expects to derive benefit (and the boards of directors or other governing body
of each such Loan Party have determined that it may reasonably be expected
to
derive benefit), directly and indirectly, from the credit extended by the
Lenders to the Loan Parties hereunder, both in their separate capacities and
as
members of the group of companies. Each Loan Party has determined that
execution, delivery, and performance of this Agreement and any other Loan
Documents to be executed by such Loan Party are within its corporate purpose,
will be of direct and indirect benefit to such Loan Party, and are in its best
interest.
Amended
and Restated Revolving Credit Agreement
-94-
ARTICLE
IV
Conditions
of Lending
The
obligations of (a) the Lenders (including the Swingline Lender) to make Loans
and (b) any Issuing Bank to issue Letters of Credit or increase the stated
amounts of Letters of Credit hereunder (each, a “Credit
Event”)
are
subject to the satisfaction of the following conditions:
SECTION
4.01. All
Credit Events.
On the
date of each Credit Event:
(a) The
Administrative Agent shall have received, in the case of a Borrowing, a
Borrowing Request as required by Section 2.03 (or a Borrowing Request shall
have been deemed given in accordance with the last paragraph of
Section 2.03) or, in the case of the issuance of a Letter of Credit, the
applicable Issuing Bank and the Administrative Agent shall have received a
notice requesting the issuance of such Letter of Credit as required by
Section 2.05(b).
(b) The
representations and warranties set forth in the Loan Documents shall be true
and
correct in all material respects as of such date (other than an amendment,
extension or renewal of a Letter of Credit without any increase in the stated
amount of such Letter of Credit), in each case, with the same effect as though
made on and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date (in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date).
(c) In
the
case of each Credit Event that occurs after the Closing Date, at the time of
and
immediately after such Credit Event, no Event of Default or Default shall have
occurred and be continuing or would result therefrom.
(d) Such
Credit Event is permitted under the terms of all Material
Indebtedness.
Each
such
Borrowing and each issuance, amendment, extension or renewal of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrowers on the date of such Borrowing, issuance, amendment, extension or
renewal as applicable, (i) as to the matters specified in paragraphs (b),
(c) and (d) of this Section 4.01, and (b) that the aggregate amount of the
Revolving Facility Credit Exposure for which any Borrower is the borrower (in
the case of Loans) or the account party (in the case of Letters of Credit)
does
not exceed the portion of the Borrowing Base attributable to such Borrower’s
Accounts and Inventory.
SECTION
4.02. Effectiveness
of Commitments.
On the
Closing Date:
(a) The
Administrative Agent (or its counsel) shall have received from each party hereto
either (i) a counterpart of this Agreement signed on behalf of such party or
(ii) written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this Agreement)
that
such party has signed a counterpart of this Agreement.
Amended
and Restated Revolving Credit Agreement
-95-
(b) The
Administrative Agent shall have received, on behalf of itself and the Lenders
and each Issuing Bank on the Closing Date, a favorable written opinion of (i)
Wachtell, Lipton, Xxxxx & Xxxx, special counsel for the Loan Parties, in
form and substance reasonably satisfactory to the Administrative Agent, (ii)
Xxxx Xxxxxxxx, in-house counsel for certain of the Loan Parties, in form and
substance reasonably satisfactory to the Administrative Agent, and (iii) Xxxx
Xxxxxx, in-house counsel for certain of the Loan Parties, in form and substance
reasonably satisfactory to the Administrative Agent, in each case (A) dated
the
Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the
Administrative Agent and the Lenders and (C) in form and substance reasonably
satisfactory to the Administrative Agent and covering such other matters
relating to the Loan Documents as the Administrative Agent shall reasonably
request.
(c) The
Administrative Agent shall have received in the case of each Loan Party each
of
the items referred to in clauses (i), (ii), (iii), (iv) and (v)
below:
(i) only
if
such document or item shall have changed since September 20, 2006 in respect
of
Xxxxx and any Loan Party that was a subsidiary of Xxxxx Holdings immediately
prior to Closing Date, or May 18, 2006 in respect of Covalence Holdings or
any
Loan Party that was a subsidiary of Covalence Holdings immediately prior to
the
Closing Date, a copy of the certificate or articles of incorporation,
certificate of limited partnership or certificate of formation, including all
amendments thereto, of each Loan Party, (A) in the case of a corporation,
certified as of a recent date by the Secretary of State (or other similar
official) of the jurisdiction of its organization, and a certificate as to
the
good standing (to the extent such concept or a similar concept exists under
the
laws of such jurisdiction) of each such Loan Party as of a recent date from
such
Secretary of State (or other similar official) or (B) in the case of a
partnership or limited liability company, certified by the Secretary or
Assistant Secretary of each such Loan Party;
(ii) a
certificate of the Secretary or Assistant Secretary or similar officer of each
Loan Party dated the Closing Date and certifying
(A) (1)
that
attached thereto is a true and complete copy of the by-laws (or partnership
agreement, limited liability company agreement or other equivalent governing
documents) of such Loan Party as in effect on the Closing Date and at all times
since the date of the resolutions described in clause (B) below, or (2)
that the by-laws (or partnership agreement, limited liability company agreement
or other equivalent governing documents) of such Loan Party, as in effect on
the
Closing Date, have not been modified, rescinded or amended since September
20,
2006 in respect of Xxxxx and any Loan Party that was a subsidiary of Xxxxx
Holdings immediately prior to Closing Date, or May 18, 2006 in respect of
Covalence Holdings or any Loan Party that was a subsidiary of Covalence Holdings
immediately prior to the Closing Date,
Amended
and Restated Revolving Credit Agreement
-96-
(B) that
attached thereto is a true and complete copy of resolutions duly adopted by
the
Board of Directors (or equivalent governing body) of such Loan Party (or its
managing general partner or managing member) authorizing the execution, delivery
and performance of the Loan Documents to which such person is a party and,
in
the case of the Borrowers, the borrowings hereunder, and that such resolutions
have not been modified, rescinded or amended and are in full force and effect
on
the Closing Date,
(C) that
the
certificate or articles of incorporation, certificate of limited partnership
or
certificate of formation of such Loan Party has not been amended since the
date
of the last amendment thereto disclosed pursuant to clause (i)
above,
(D) as
to the
incumbency and specimen signature of each officer executing any Loan Document
or
any other document delivered in connection herewith on behalf of such Loan
Party, and
(E) as
to the
absence of any pending proceeding for the dissolution or liquidation of such
Loan Party or, to the knowledge of such person, threatening the existence of
such Loan Party;
(iii) a
certificate of a director or another officer as to the incumbency and specimen
signature of the Secretary or Assistant Secretary or similar officer executing
the certificate pursuant to clause (ii) above;
(iv) a
calculation of the Borrowing Base as of the Closing Date in the form of
Schedule
4.02
reasonably satisfactory to the Administrative Agent; and
(v) such
other documents as the Administrative Agent, the Lenders and any Issuing Bank
on
the Closing Date may reasonably request (including without limitation, tax
identification numbers and addresses).
(d) The
elements of the Collateral and Guarantee Requirement required to be satisfied
on
the Closing Date shall have been satisfied (other than in the case of any
security interest in the intended Collateral or any deliverable related to
the
perfection of security interests in the intended Collateral (other than any
Collateral the security interest in which may be perfected by the filing of
a
UCC financing statement or the delivery of stock certificates and the security
agreement giving rise to the security interest therein) that is not provided
on
the Closing Date after the Company’s use of commercially reasonable efforts to
do so, which such security interest or deliverable shall be delivered within
the
time periods specified with respect thereto in Schedule
4.02(d)),
and
the Administrative Agent shall have received a completed Perfection Certificate,
dated the Closing Date and signed by a Responsible Officer of the Company,
together with all attachments contemplated thereby.
(e) The
Business Combination shall have been consummated or shall be consummated
simultaneously with or immediately following the closing under this
Amended
and Restated Revolving Credit Agreement
-97-
Agreement
in accordance with the terms and conditions of the Business Combination as
set
forth in the Merger Documents, without material amendment, supplement,
modification or waiver thereof which is materially adverse to the Lenders
without the prior written consent of the Joint Lead Arrangers.
(f) The
Lenders shall have received the financial statements referred to in
Section 3.05.
(g) On
the
Closing Date, after giving effect to the Transactions and the other transactions
contemplated hereby, Holdings shall have outstanding no Indebtedness and the
Borrowers and the Subsidiaries shall have outstanding no Indebtedness other
than
(i) the Loans and other extensions of credit under this Agreement, (ii) the
Senior Subordinated Notes, (iii) the Second Lien Notes, (iv) the Term Loans,
and
(v) other Indebtedness permitted pursuant to Section 6.01.
(h) The
Lenders shall have received a solvency certificate substantially in the form
of
Exhibit B
and
signed by the Chief Financial Officer of the Company confirming the solvency
of
the Company and its Subsidiaries on a consolidated basis after giving effect
to
the Transactions on the Closing Date.
(i) The
Agents shall have received all fees payable thereto or to any Lender on or
prior
to the Closing Date and, to the extent invoiced, all other amounts due and
payable pursuant to the Loan Documents on or prior to the Closing Date,
including, to the extent invoiced, reimbursement or payment of all reasonable
out-of-pocket expenses (including reasonable fees, charges and disbursements
of
Shearman & Sterling LLP and local counsel) required to be reimbursed or paid
by the Loan Parties hereunder or under any Loan Document.
(j) Each
of
(i) the Collateral Agreement, (ii) the Senior Lender Intercreditor Agreement,
(iii) Intercreditor Agreement and (iv) the Term Loan Credit Agreement shall
have
been executed and delivered by the respective parties thereto and shall have
become effective, and the Administrative Agent shall have received evidence
satisfactory to it of such execution and delivery and
effectiveness.
ARTICLE
V
Affirmative
Covenants
The
Borrowers covenant and agree with each Lender that so long as this Agreement
shall remain in effect (other than in respect of contingent indemnification
obligations
Amended
and Restated Revolving Credit Agreement
-98-
for
which
no claim has been made) and until the Commitments have been terminated and
the
Obligations (including principal of and interest on each Loan, all Fees and
all
other expenses or amounts payable under any Loan Document) shall have been
paid
in full and all Letters of Credit and Bankers’ Acceptances have been canceled or
fully cash collateralized (in a manner reasonably acceptable to the
Administrative Agent and the Issuing Banks) or have expired and all amounts
drawn or paid thereunder have been reimbursed in full, unless the Required
Lenders shall otherwise consent in writing, the Borrowers will, and will cause
each of the Material Subsidiaries to:
SECTION
5.01. Existence;
Businesses and Properties.
(a) Do
or cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence, except, in the case of a Subsidiary of
the
Company, where the failure to do so would not reasonably be expected to have
a
Material Adverse Effect, and except as otherwise expressly permitted under
Section 6.05, and except for the liquidation or dissolution of Subsidiaries
if
the assets of such Subsidiaries to the extent they exceed estimated liabilities
are acquired by the Company or a Wholly Owned Subsidiary of the Company in
such
liquidation or dissolution; provided,
that
Subsidiary Loan Parties may not be liquidated into Subsidiaries that are not
Loan Parties and Domestic Subsidiaries may not be liquidated into Foreign
Subsidiaries.
(b) Except
where the failure to do so would not reasonably be expected to have a Material
Adverse Effect, do or cause to be done all things necessary to (i) lawfully
obtain, preserve, renew, extend and keep in full force and effect the permits,
franchises, authorizations, patents, trademarks, service marks, trade names,
copyrights, licenses and rights with respect thereto necessary to the normal
conduct of its business and (ii) at all times maintain and preserve all property
necessary to the normal conduct of its business and keep such property in good
repair, working order and condition and from time to time make, or cause to
be
made, all needful and proper repairs, renewals, additions, improvements and
replacements thereto necessary in order that the business carried on in
connection therewith, if any, may be properly conducted at all times (in each
case except as expressly permitted by this Agreement).
SECTION
5.02. Insurance.
xxvii) Maintain,
with financially sound and reputable insurance companies, insurance in such
amounts and against such risks as are customarily maintained by similarly
situated companies engaged in the same or similar businesses operating in the
same or similar locations and cause the Administrative Agent to be listed as
a
co-loss payee on property and casualty policies and as an additional insured
on
liability policies.
(b) With
respect to any Mortgaged Properties, if at any time the area in which the
Premises (as defined in the Mortgages) are located is designated a “flood hazard
area” in any Flood Insurance Rate Map published by the Federal Emergency
Management Agency (or any successor agency), obtain flood insurance in such
reasonable total amount as the Administrative Agent may from time to time
reasonably require, and otherwise comply with the National Flood Insurance
Program as set forth in the Flood Disaster Protection Act of 1973, as it may
be
amended from time to time.
(c) In
connection with the covenants set forth in this Section 5.02, it is understood
and agreed that:
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(i) none
of
the Administrative Agent, the Issuing Banks, the Lenders, and their respective
agents or employees shall be liable for any loss or damage insured by the
insurance policies required to be maintained under this Section 5.02, it being
understood that (A) the Loan Parties shall look solely to their insurance
companies or any other parties other than the aforesaid parties for the recovery
of such loss or damage and (B) such insurance companies shall have no rights
of
subrogation against the Administrative Agent, the Lenders, any Issuing Bank
or
their agents or employees. If, however, the insurance policies, as a matter
of
the internal policy of such insurer, do not provide waiver of subrogation rights
against such parties, as required above, then each of Holdings and the
Borrowers, on behalf of itself and behalf of each of its subsidiaries, hereby
agrees, to the extent permitted by law, to waive, and further agrees to cause
each of their Subsidiaries to waive, its right of recovery, if any, against
the
Administrative Agent, the Lenders, any Issuing Bank and their agents and
employees; and
(ii) the
designation of any form, type or amount of insurance coverage by the
Administrative Agent under this Section 5.02 shall in no event be deemed a
representation, warranty or advice by the Administrative Agent or the Lenders
that such insurance is adequate for the purposes of the business of Holdings,
the Borrowers and the Subsidiaries or the protection of their
properties.
SECTION
5.03. Taxes.
Pay and
discharge promptly when due all material Taxes, imposed upon it or upon its
income or profits or in respect of its property, before the same shall become
delinquent or in default, as well as all lawful claims which, if unpaid, might
give rise to a Lien upon such properties or any part thereof; provided,
however,
that
such payment and discharge shall not be required with respect to any such Tax
or
claim so long as the validity or amount thereof shall be contested in good
faith
by appropriate proceedings, and Holdings, the Company or the affected
Subsidiary, as applicable, shall have set aside on its books reserves in
accordance with GAAP with respect thereto.
SECTION
5.04. Financial
Statements, Reports, etc.
Furnish
to the Administrative Agent (which will promptly furnish such information to
the
Lenders):
(a) within
90
days (or, if applicable, such shorter period as the SEC shall specify for the
filing of annual reports on Form 10-K) after the end of each fiscal year, a
consolidated balance sheet and related statements of operations, cash flows
and
owners’ equity showing the financial position of the Company and its
Subsidiaries as of the close of such fiscal year and the consolidated results
of
its operations during such year and, beginning with the financials delivered
pursuant to this clause (a) in respect of the 2008 fiscal year, setting forth
in
comparative form the corresponding figures for the prior fiscal year, which
consolidated balance sheet and related statements of operations, cash flows
and
owners’ equity shall be audited by independent public accountants of recognized
national standing and accompanied by an opinion of such accountants (which
opinion shall not be qualified as to scope of audit or as to the status of
the
Company or any Material Subsidiary as a going concern) to the effect that such
consolidated financial statements fairly present, in all material respects,
the
financial position and results of operations of the Company and its Subsidiaries
on a consolidated basis in accordance with GAAP (it being understood that the
delivery by the Company of annual reports on Form 10-K of the Company and its
consolidated Subsidiaries shall satisfy the
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requirements
of this Section 5.04(a) to the extent such annual reports include the
information specified herein);
(b) within
45
days (or, if applicable, such shorter period as the SEC shall specify for the
filing of quarterly reports on Form 10-Q) after the end of each of the first
three fiscal quarters of each fiscal year beginning with the fiscal quarter
ending June 30, 2007, for each of the first three fiscal quarters of each fiscal
year, (i) a consolidated balance sheet and related statements of operations
and
cash flows showing the financial position of the Company and its Subsidiaries
as
of the close of such fiscal quarter and the consolidated results of its
operations during such fiscal quarter and the then-elapsed portion of the fiscal
year and setting forth in comparative form the corresponding figures for the
corresponding periods of the prior fiscal year, and (ii) management’s discussion
and analysis of significant operational and financial developments during such
quarterly period, all of which shall be in reasonable detail and which
consolidated balance sheet and related statements of operations and cash flows
shall be certified by a Financial Officer of the Company on behalf of the
Company as fairly presenting, in all material respects, the financial position
and results of operations of the Company and its Subsidiaries on a consolidated
basis in accordance with GAAP (subject to normal year-end audit adjustments
and
the absence of footnotes) (it being understood that the delivery by the Company
of quarterly reports on Form 10-Q of the Company and its consolidated
Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the
extent such quarterly reports include the information specified herein);
(c) (x)
concurrently with any delivery of financial statements under paragraphs (a)
or
(b) above, a certificate of a Financial Officer of the Company certifying (i)
that no Event of Default or Default has occurred or, if such an Event of Default
or Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto, (ii)
whether an Availability Triggering Event has occurred during the applicable
period covered by such financial statements, (iii) the calculation of the ABL
Fixed Charge Coverage Ratio as of the last day of the applicable period covered
by such financial statements, and (iv) that the aggregate amount of the
Revolving Facility Credit Exposure for which any Borrower is the borrower (in
the case of Loans) or the account party (in the case of Letters of Credit)
does
not exceed the portion of the Borrowing Base attributable to such Borrower’s
Accounts and Inventory, together with, if requested by the Administrative Agent,
calculations evidencing and supporting such certification, (v) the calculation
and uses of the Cumulative Credit for the fiscal period then ended if the
Company shall have used the Cumulative Credit for any purpose during such fiscal
period, (vi) a list of names of all Immaterial Subsidiaries for the following
fiscal quarter, that each Subsidiary set forth on such list individually
qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the
aggregate (together with all Unrestricted Subsidiaries) do not exceed the
limitation set forth in clause (b) of the definition of the term Immaterial
Subsidiary, and (vii) a list of names of all Unrestricted Subsidiaries, that
each Subsidiary set forth on such list individually qualifies as an Unrestricted
Subsidiary, and (y) concurrently with any delivery of financial statements
under
paragraph (a) above, if the accounting firm is not restricted from providing
such a certificate by its policies of its national office, a certificate of
the
accounting firm opining on or certifying such statements stating
whether
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they
obtained knowledge during the course of their examination of such statements
of
any Default or Event of Default (which certificate may be limited to accounting
matters and disclaim responsibility for legal interpretations);
(d) promptly
after the same become publicly available, copies of all periodic and other
publicly available reports, proxy statements and, to the extent requested by
the
Administrative Agent, other materials filed by Holdings, the Company or any
of
the Subsidiaries with the SEC, or after an initial public offering, distributed
to its stockholders generally, as applicable; provided, however, that such
reports, proxy statements, filings and other materials required to be delivered
pursuant to this clause (d) shall be deemed delivered for purposes of this
Agreement when posted to the website of the Company;
(e) within
90
days after the beginning of each fiscal year, a reasonably detailed consolidated
quarterly budget for such fiscal year (including a projected consolidated
balance sheet of the Company and its Subsidiaries as of the end of the following
fiscal year, and the related consolidated statements of projected cash flow
and
projected income), including a description of underlying assumptions with
respect thereto (collectively, the “Budget”),
which
Budget shall in each case be accompanied by the statement of a Financial Officer
of the Company to the effect that the Budget is based on assumptions believed
by
such Financial Officer to be reasonable as of the date of delivery
thereof;
(f) upon
the
reasonable request of the Administrative Agent, an updated Perfection
Certificate (or, to the extent such request relates to specified information
contained in the Perfection Certificate, such information) reflecting all
changes since the date of the information most recently received pursuant to
this paragraph (f) or Section 5.10(g);
(g) promptly,
from time to time, such other information regarding the operations, business
affairs and financial condition of Holdings, the Company or any of the
Subsidiaries, or compliance with the terms of any Loan Document, or such
consolidating financial statements as in each case the Administrative Agent
may
reasonably request (for itself or on behalf of any Lender);
(h) in
the
event that (i) in respect of the Second Lien Notes or the Senior Subordinated
Notes, and any Refinancing Indebtedness with respect thereto, the rules and
regulations of the SEC permit the Company, Holdings or any Parent Entity to
report at Holdings’ or such Parent Entity’s level on a consolidated basis and
(ii) Holdings or such Parent Entity, as the case may be, is not engaged in
any
business or activity, and does not own any assets or have other liabilities,
other than those incidental to its ownership directly or indirectly of the
capital stock of the Company and the incurrence of Indebtedness for borrowed
money (and, without limitation on the foregoing, does not have any subsidiaries
other than the Company and the Company’s Subsidiaries and any direct or indirect
parent companies of the Company that are not engaged in any other business
or
activity and do not hold any other assets or have any liabilities except as
indicated above) such consolidated reporting at such Parent Entity’s level in a
manner
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consistent
with that described in paragraphs (a) and (b) of this Section 5.04 for the
Company (together with a reconciliation showing the adjustments necessary to
determine the ABL Fixed Charge Coverage Ratio) will satisfy the requirements
of
such paragraphs;
(i) promptly
upon request by the Administrative Agent, copies of: (i) each Schedule B
(Actuarial Information) to the most recent annual report (Form 5500 Series)
filed with the Internal Revenue Service with respect to a Plan; (ii) the most
recent actuarial valuation report for any Plan; (iii) all notices received
from
a Multiemployer Plan sponsor, a plan administrator or any governmental agency,
or provided to any Multiemployer Plan by Holdings, the Company, a Subsidiary
or
any ERISA Affiliate, concerning an ERISA Event; and (iv) such other documents
or
governmental reports or filings relating to any Plan or Multiemployer Plan
as
the Administrative Agent shall reasonably request; and
(j) promptly
upon Holdings, the Company or the Subsidiaries becoming aware of any fact or
condition which would reasonably be expected to result in an ERISA Event, the
Company shall deliver to Administrative Agent a summary of such facts and
circumstances and any action it or Holdings or the Subsidiaries intend to take
regarding such facts or conditions.
SECTION
5.05. Litigation
and Other Notices.
Furnish
to the Administrative Agent (which will promptly thereafter furnish to the
Lenders) written notice of the following promptly after any Responsible Officer
of Holdings or the Company obtains actual knowledge thereof:
(a) any
Event
of Default or Default, specifying the nature and extent thereof and the
corrective action (if any) proposed to be taken with respect
thereto;
(a) the
filing or commencement of, or any written threat or notice of intention of
any
person to file or commence, any action, suit or proceeding, whether at law
or in
equity or by or before any Governmental Authority or in arbitration, against
Holdings, the Company or any of the Subsidiaries as to which an adverse
determination is reasonably probable and which, if adversely determined, would
reasonably be expected to have a Material Adverse Effect;
(b) any
other
development specific to Holdings, the Company or any of the Subsidiaries that
is
not a matter of general public knowledge and that has had, or would reasonably
be expected to have, a Material Adverse Effect; and
(c) the
development of any ERISA Event that, together with all other ERISA Events that
have developed or occurred, would reasonably be expected to have a Material
Adverse Effect.
SECTION
5.06. Compliance
with Laws.
Comply
with all laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to do so,
individually or in the aggregate, would not reasonably be expected to result
in
a Material Adverse Effect; provided,
that
this Section 5.06 shall not apply to Environmental Laws,
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which
are
the subject of Section 5.09, or to laws related to Taxes, which are the subject
of Section 5.03.
SECTION
5.07. Maintaining
Records; Access to Properties and Inspections.
Maintain all financial records in accordance with GAAP and, upon five Business
Days’ notice (or, if an Event of Default has occurred and is continuing, one
Business Day’s notice), permit any authorized representatives of the
Administrative Agent and the Collateral Agent to visit, audit and inspect any
of
the properties of such Borrower and its Subsidiaries, including its and their
financial and accounting records, and to make copies and take extracts
therefrom, and to discuss its and their affairs, finances and business with
its
and their officers and certified public accountants (so long as such Borrower
has the opportunity to participate in any discussions with such certified public
accountants), at such reasonable times during normal business hours and without
undue disruption to the business of the Borrowers as often as may be reasonably
requested, in each case at the expense of the Borrowers (a “Collateral
Audit”);
provided, that so long as no Availability Triggering Event or Event of Default
has occurred and is continuing, the Administrative Agent shall not conduct
more
than one Collateral Audit per year unless the Availability is less than $100
million for five consecutive days, in which case two Collateral Audits per
year
shall be permitted. If an Availability Triggering Event or Event of Default
has
occurred and is continuing, representatives of each Lender (at such Lender’s
expense) will be permitted to accompany representatives of the Administrative
Agent during each visit, inspection and discussion conducted during the
existence of such Availability Triggering Event or Event of
Default.
SECTION
5.08. Use
of
Proceeds.
Use the
proceeds of the Revolving Loans and the Swingline Loans and request the issuance
of Letters of Credit, together with other cash, to consummate the Refinancing
and the other Transactions and for general corporate purposes.
SECTION
5.09. Compliance
with Environmental Laws.
Comply,
and make reasonable efforts to cause all lessees and other persons occupying
its
properties to comply, with all Environmental Laws applicable to its operations
and properties; and obtain and renew all material authorizations and permits
required pursuant to Environmental Law for its operations and properties, in
each case in accordance with Environmental Laws, except, in each case with
respect to this Section 5.09, to the extent the failure to do so would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
SECTION
5.10. Further
Assurances; Additional Security.
xxviii) Execute
any and all further documents, financing statements, agreements and instruments,
and take all such further actions (including the filing and recording of
financing statements, fixture filings, Mortgages and other documents and
recordings of Liens in stock registries), that may be required under any
applicable law, or that the Collateral Agent may reasonably request, to satisfy
the Collateral and Guarantee Requirement and to cause the Collateral and
Guarantee Requirement to be and remain satisfied, all at the expense of the
Loan
Parties and provide to the Collateral Agent, from time to time upon reasonable
request, evidence reasonably satisfactory to the Collateral Agent as to the
perfection and priority of the Liens created or intended to be created by the
Security Documents.
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(b) If
any
asset (including any Real Property (other than Real Property covered by
paragraph (c) below) or improvements thereto or any interest therein) that
has an individual fair market value in an amount greater than $5 million is
acquired by the Company or any other Loan Party after the Closing Date or owned
by an entity at the time it becomes a Subsidiary Loan Party (in each case other
than (x) assets constituting Collateral under a Security Document that
become subject to the Lien of such Security Document upon acquisition thereof
and (y) assets that are not required to become subject to Liens in favor of
the
Collateral Agent pursuant to Section 5.10(g) or the Security Documents) (i)
notify the Collateral Agent thereof, (ii) if such asset is comprised of Real
Property, deliver to Collateral Agent an updated Schedule
1.01(c)
reflecting the addition of such asset, and (iii) cause such asset to be
subjected to a Lien securing the Obligations and take, and cause the Subsidiary
Loan Parties to take, such actions as shall be necessary or reasonably requested
by the Administrative Agent to grant and perfect such Liens, including actions
described in paragraph (a) of this Section, all at the expense of the Loan
Parties, subject to paragraph (g) below.
(c) Promptly
notify the Collateral Agent of the acquisition of and grant and cause each
of
the Subsidiary Loan Parties to grant to the Collateral Agent security interests
and mortgages in such Real Property of the Company or any such Subsidiary Loan
Parties as are not covered by the original Mortgages, to the extent acquired
after the Closing Date and having a value at the time of acquisition in excess
of $5 million pursuant to documentation substantially in the form of the
Mortgages delivered to the Collateral Agent on the Closing Date or in such
other
form as is reasonably satisfactory to the Administrative Agent (each, an
“Additional
Mortgage”)
and
constituting valid and enforceable Liens subject to no other Liens except
Permitted Liens, at the time of perfection thereof, record or file, and cause
each such Subsidiary to record or file, the Additional Mortgage or instruments
related thereto in such manner and in such places as is required by law to
establish, perfect, preserve and protect the Liens in favor of the Collateral
Agent required to be granted pursuant to the Additional Mortgages and pay,
and
cause each such Subsidiary to pay, in full, all Taxes, fees and other charges
payable in connection therewith, in each case subject to paragraph (g)
below. Unless otherwise waived by the Collateral Agent, with respect to each
such Additional Mortgage, the Company shall deliver to the Collateral Agent
contemporaneously therewith a title insurance policy, and a survey.
(d) If
any
additional direct or indirect Subsidiary of the Company is formed or acquired
after the Closing Date (with any Subsidiary Redesignation resulting in an
Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the
acquisition of a Subsidiary) and if such Subsidiary is a Subsidiary Loan Party,
within five Business Days after the date such Subsidiary is formed or acquired,
notify the Collateral Agent and the Lenders thereof and, within 20 Business
Days
after the date such Subsidiary is formed or acquired or such longer period
as
the Collateral Agent shall agree, cause the Collateral and Guarantee Requirement
to be satisfied with respect to such Subsidiary and with respect to any Equity
Interest in or Indebtedness of such Subsidiary owned by or on behalf of any
Loan
Party, subject to paragraph (g) below.
(e) If
any
additional Foreign Subsidiary of the Company is formed or acquired after the
Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted
Subsidiary becoming a Subsidiary being deemed to constitute the acquisition
of a
Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary, within
five Business Days after the date such Foreign Subsidiary is formed or acquired,
notify the Collateral Agent and the Lenders
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thereof
and, within 20 Business Days after the date such Foreign Subsidiary is formed
or
acquired or such longer period as the Collateral Agent shall agree, cause the
Collateral and Guarantee Requirement to be satisfied with respect to any Equity
Interest in such Foreign Subsidiary owned by or on behalf of any Loan Party,
subject to paragraph (g) below.
(f) (i)
Furnish to the Collateral Agent prompt written notice of any change (A) in
any
Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or
organizational structure or (C) in any Loan Party’s organizational
identification number; provided,
that
the Borrowers shall not effect or permit any such change unless all filings
have
been made, or will have been made within any statutory period, under the Uniform
Commercial Code or otherwise that are required in order for the Collateral
Agent
to continue at all times following such change to have a valid, legal and
perfected security interest in all the Collateral for the benefit of the Secured
Parties and (ii) promptly notify the Administrative Agent if any material
portion of the Collateral is damaged or destroyed.
(g) The
Collateral and Guarantee Requirement and the other provisions of this
Section 5.10 need not be satisfied with respect to (i) any Real Property
held by the Borrowers or any of their Subsidiaries as a lessee under a lease,
(ii) any vehicle, (iii) except as required pursuant to Section 5.15, cash,
deposit account and security accounts (provided
that
this clause (iii) shall not affect the Collateral Agent’s right to claim a
security interest in proceeds of Accounts and Inventory), (iv) any Equity
Interests acquired after the Closing Date (other than Equity Interests in the
Company or, in the case of any person which is a Subsidiary, Equity Interests
in
such person issued or acquired after such person became a Subsidiary) in
accordance with this Agreement if, and to the extent that, and for so long
as
(A) such Equity Interests constitute less than 100% of all applicable Equity
Interests of such person and the person holding the remainder of such Equity
Interests are not Affiliates, (B) doing so would violate applicable law or
a
contractual obligation binding on such Equity Interests and (C) with respect
to
such contractual obligations, such obligation existed at the time of the
acquisition thereof and was not created or made binding on such Equity Interests
in contemplation of or in connection with the acquisition of such Subsidiary,
(v) any assets acquired after the Closing Date, to the extent that, and for
so
long as, taking such actions would violate an enforceable contractual obligation
binding on such assets that existed at the time of the acquisition thereof
and
was not created or made binding on such assets in contemplation or in connection
with the acquisition of such assets (except in the case of assets acquired
with
Indebtedness permitted pursuant to Section 6.01(i) that is secured by a
Permitted Lien) or (vi) those assets as to which the Collateral Agent shall
reasonably determine that the costs of obtaining or perfecting such a security
interest are excessive in relation to the value of the security to be afforded
thereby; provided,
that,
upon the reasonable request of the Collateral Agent, the Company shall, and
shall cause any applicable Subsidiary to, use commercially reasonable efforts
to
have waived or eliminated any contractual obligation of the types described
in
clauses (iv) and (v) above.
SECTION
5.11. [Intentionally
Omitted.]
SECTION
5.12. Appraisals
and Reports.
The
Company shall use commercially reasonable efforts to facilitate the completion
of Post-Closing Reports within 90 days after the Closing Date. In addition,
the
Borrowers shall provide to the Collateral Agent, upon request of the Collateral
Agent and at the expense of the Borrowers, (a) so long as no
Availability
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Triggering
Event or Event of Default has occurred and is continuing, one time in each
calendar year (in coordination with the Company’s annual financial statement
audit), or (b) if the Availability is less than $100 million for five
consecutive days, two times per calendar year, and (c) if any Availability
Triggering Event or Event of Default has occurred and is continuing, one
additional time during any calendar year, appraisals or updates thereof of
any
or all of the Collateral from one or more Acceptable Appraisers (as selected
by
the Borrowers), and prepared in a form and on a basis reasonably satisfactory
to
the Collateral Agent, such appraisals and updates to include, without
limitation, information required by Requirements of Law and by the internal
policies of the Lenders. In addition, the Borrowers shall have the right (but
not the obligation), at their expense, at any time and from time to time (but
not more than twice per year) to provide the Collateral Agent with additional
appraisals or updates thereof of any or all of the Collateral from one or more
Acceptable Appraisers (as selected by the Borrowers), and prepared in a form
and
on a basis reasonably satisfactory to the Collateral Agent, in which case such
appraisals or updates shall be used in connection with the determination of
the
Orderly Liquidation Value and the calculation of the Borrowing Base hereunder.
In connection with any appraisal requested by the Collateral Agent pursuant
to
this Section 5.12, the Borrowers shall be given 20 days following such request
by the Collateral Agent to choose and engage the Acceptable Appraiser prior
to
the commencement of such appraisal. With respect to each appraisal made pursuant
to this Section 5.12 after the Closing Date, (i) the Collateral Agent and the
Borrowers shall each be given a reasonable amount of time to review and comment
on a draft form of the appraisal prior to its finalization and (ii) any
adjustments to the Orderly Liquidation Value or the Borrowing Base hereunder
as
a result of such appraisal shall become effective 20 days following the
finalization of such appraisal.
SECTION
5.13. Collateral
Reporting.
Provide, or cause to be provided, to the Collateral Agent, a Borrowing Base
Certificate on or before the 20th
Business
Day of each Fiscal Period, or, during the continuance of an Availability
Triggering Event or Event of Default, more frequently if requested by the
Collateral Agent (but in no event more frequently than once in any seven
consecutive days), for the preceding Fiscal Period end (or such shorter period
during the continuance of an Availability Triggering Event or Event of Default),
substantially in the form of Exhibit
F.
If the
Borrowers’ records or reports of the Collateral required to be delivered
pursuant to this Agreement are prepared by an accounting service or other agent,
the Borrowers hereby authorize such service or agent to deliver such records
or
reports to the Collateral Agent, for distribution to the Lenders.
SECTION
5.14. Accounts.
(a) Not
re-date any invoice or sale or make sales on extended dating or extend or modify
any Account outside the ordinary course of business.
(b) Not,
without the Collateral Agent’s prior written consent, accept any note or other
instrument (except a check or other instrument for the immediate payment of
money) with respect to any Account other than Accounts which (i) do not exceed
$1 million individually and (ii) at the time of accepting such note or other
instrument are not less than 90 days past due from the date of the original
invoice therefor or in settlement of a bankrupt or disputed account. If the
Collateral Agent consents to the acceptance of any such instrument, such Loan
Party will
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promptly
deliver such instrument to the Collateral Agent, endorsed to the Collateral
Agent in a manner satisfactory in form and substance to the Collateral
Agent.
(c) Take
commercially reasonable steps to settle, contest, or adjust any dispute or
claim
in excess of $1 million at no expense to the Secured Parties. No discount,
credit, or allowance shall be granted to any Account Debtor without the
Collateral Agent’s prior written consent, except for discounts, credits, and
allowances made or given in the ordinary course of business of the Borrowers
(unless an Event of Default has occurred and is continuing and the Collateral
Agent has notified the Borrowers that such exception is withdrawn).
(d) If
an
Account Debtor returns any Inventory to any Borrower then, unless an Event
of
Default exists and the Collateral Agent has given notice to the Borrowers not
to
do so, such Borrower shall promptly determine the reason for such return and
if
such return has a valid reason shall issue a credit memorandum to the Account
Debtor in the appropriate amount. All returned Inventory of the Borrowers or
its
Subsidiaries shall be subject to the Collateral Agent’s Liens thereon. Whenever
any Inventory is returned, the related Account shall be deemed ineligible
(without duplication of any other exclusion) to the extent of the amount owing
by the Account Debtor with respect to such returned Inventory.
SECTION
5.15. Collection
of Accounts; Payments.
(a) Within
120 days after the Closing Date, establish a Payment Account (the “Primary
Payment Account”)
subject to a Blocked Account Agreement and
other
documentation reasonably acceptable to the Administrative Agent, into which
all
Account collections and proceeds of Revolving Facility Senior Collateral (as
defined in the Senior Lender Intercreditor Agreement) will be deposited, and
the
Borrowers hereby agree that, if an Availability Triggering Event or Specified
Default has occurred and is continuing, the Collateral Agent will have exclusive
dominion and control over the Primary Payment Account. In the absence of an
Availability Triggering Event or Specified Default, the Borrowers will be
entitled to direct the application of funds in the Primary Payment Account,
including directing the Administrative Agent (or other depository bank, if
applicable) to apply funds to the repayment of the outstanding Loans and other
amounts payable under the Loan Documents and to otherwise withdraw funds from
the Primary Payment Account; provided
that all
funds withdrawn from the Primary Payment Account will be applied to repay
operating expenses of the Borrowers and their Subsidiaries in the ordinary
course of business or for other purposes permitted hereunder other than
transfers of funds to a deposit account that is not subject to a Blocked Account
Agreement (an “Unblocked
Account”)
or
investments in Permitted Investments unless (i) the Collateral Agent has a
first
priority perfected security interest in such Permitted Investment or Unblocked
Account or (ii) the amount of such Permitted Investments and funds in Unblocked
Accounts so transferred for which the Collateral Agent does not have a first
priority perfected security interest does not exceed $40 million at any one
time; provided
that no
such transfers of funds to Unblocked Accounts or Permitted Investments may
be
made pursuant to this clause (ii) if the Availability is less than $100 million
on such date immediately before and after giving effect to such transfer or
Permitted Investment.
If an
Availability Triggering Event or Specified Default has occurred and is
continuing, (i) the Collateral Agent shall have the right to apply collections
received into the Primary Payment Account to the outstanding Loans as provided
in Section 5.02 of the Collateral Agreement and the Borrowers shall have the
right, subject to the terms and
Amended
and Restated Revolving Credit Agreement
-108-
conditions
of this Agreement, to request Borrowings hereunder and direct the disposition
of
Revolving Loan proceeds, and (ii) the Borrowers shall not be entitled to present
items drawn on or otherwise to withdraw or direct the dispositions of funds
from
the Primary Payment Account nor shall any Borrower be entitled to close the
Primary Payment Account until all obligations under this Agreement are paid
and
performed in full. Notwithstanding any other agreements the Borrowers may have
with any Secured Party, the Collateral Agent shall be entitled, during the
continuance of any Event of Default, for purposes of this Agreement to give
instructions as to the withdrawal or disposition of funds from time to time
credited to any deposit account with the Collateral Agent, any Payment Account,
or the Primary Payment Account, or as to any other matters relating to any
of
the forgoing without further consent of the Borrowers. The Collateral Agent’s
power under this Agreement to give instructions as to the withdrawal or
disposition of any funds from time to time credited to the Primary Payment
Account, any other Payment Account or deposit account with the Collateral Agent
or as to any other matters relating to the foregoing includes, without
limitation, during an Event of Default, the power to give stop payment orders
for any items being presented to such accounts for payment.
(b) No
later
than 120 days after the Closing Date or such later time as the Administrative
Agent shall agree, establish a lock-box service for collections of Accounts
at
Clearing Banks reasonably acceptable to the Administrative Agent and, with
respect to bank accounts with Clearing Banks other than the Collateral Agent,
if
requested by the Administrative Agent, subject to Blocked Account Agreements
and
other documentation reasonably acceptable to the Administrative Agent
(provided
that
Blocked Account Agreements and other documentation consistent in form and
substance with the Blocked Account Agreements and documentation established
in
connection with the Existing Credit Agreement shall be acceptable to the
Administrative Agent). The Borrowers shall instruct all Account Debtors with
respect to Accounts to make all payments directly to the address established
for
each such lock-box service or electronically into such lockbox accounts. If,
notwithstanding such instructions, any Borrower receives any proceeds of
Accounts, it shall deliver such payments to the Collateral Agent or deposit
them
into the Primary Payment Account of another Payment Account established pursuant
to this Section 5.15(b). All funds received in any Payment Account other than
the Primary Payment Account shall be promptly transferred to the Primary Payment
Account. During an Availability Triggering Event or Specified Default, all
collections received in any lock-box or Payment Account or directly by the
Borrowers or the Collateral Agent, and all funds in any Payment Account or
other
account to which such collections are deposited, shall be subject to the
Collateral Agent’s exclusive dominion and control and withdrawals by the
Borrowers shall not be permitted; provided,
however,
that,
in the absence of an Availability Triggering Event or Specified Default, all
collections received in any lock-box or Payment Account, and all funds in any
Payment Account or other account to which such collections are deposited shall
be subject to direction as to application thereof and withdrawal by the
Borrowers in the same manner as provided in Section 5.15(a) for the Primary
Payment Account. The Collateral Agent or its designee may, at any time after
the
occurrence and during the continuation of an Event of Default, upon notice
to
the Borrowers, notify Account Debtors that the Accounts have been assigned
to
the Collateral Agent and of the Collateral Agent’s security interest therein,
and may collect them directly and charge the collection costs and expenses
to
the Loan Account as a Revolving Loan. So long as an Event of Default exists,
the
Borrowers, at the Collateral Agent’s request, shall execute and deliver to the
Collateral Agent such documents as
Amended
and Restated Revolving Credit Agreement
-109-
the
Collateral Agent shall reasonably request to grant the Collateral Agent access
to any post office box in which collections of Accounts are received.
(c) If
sales
of Inventory are made or services are rendered by any of the Borrowers for
cash,
such Borrowers shall promptly deposit such cash into a Payment
Account.
(d) Except
as
otherwise provided in this Section 5.15, all payments received by the Collateral
Agent in a bank account, an account separate from the Primary Payment Account,
a
Payment Account or a lock-box account, designated by the Borrowers and the
Collateral Agent will be credited to the Loan Account (conditional upon final
collection) on the same day received (if received prior to 3:00 p.m., Local
Time); provided
that the
Borrowers shall compensate the Collateral Agent for the cost of collection
and
clearance of remittances applied to the Loan Account, including interest for
one
day, on all uncollected funds credited to the Loan Account as provided by this
Section 5.15(d).
(e) In
the
event all of the Obligations (other than contingent indemnification and expense
reimbursement obligations for which no claim has been made) are repaid upon
the
termination of this Agreement or upon acceleration of the Obligations, other
than through the Collateral Agent’s receipt of payments on account of the
Accounts or proceeds of the other Collateral, such payment will be credited
(conditional upon final collection) to the Loan Account (i) on the date of
the
Collateral Agent’s receipt of such funds if such funds are collected funds or
other immediately available funds if received by 3:00 p.m. (New York, New York
time) or (ii) one Business Day after the Collateral Agent’s receipt of such
funds if such funds are uncollected funds or collected or immediately available
funds received after such time.
SECTION
5.16. Inventory;
Perpetual Inventory.
(a) Keep
its
Inventory (other than returned or obsolete Inventory) in good and marketable
condition, except for damaged or defective goods arising in the ordinary course
of its business. The Borrowers will not, without the prior written consent
of
the Collateral Agent, acquire or maintain any Inventory in excess of $5 million
at any time on consignment or approval unless such Inventory is disclosed to
the
Collateral Agent pursuant to Section 5.13 and the Borrowers take appropriate
steps to insure that all of such Inventory meets the criteria of Eligible
Inventory, including delivery of appropriate subordination agreements, if
necessary. The Borrowers will conduct a physical count of their Inventory at
least once per its fiscal year, and during the existence of an Event of Default,
at such other times as the Collateral Agent may reasonably request. Without
the
Collateral Agent’s written consent, the Borrowers will not sell, through a
single transaction or a series of related transactions, Inventory on a
xxxx-and-hold, guaranteed sale, sale and return, sale on approval, consignment,
or other repurchase or return basis in excess of $5 million.
(b) In
connection with all Inventory financed by letters of credit, the Borrowers
will,
when an Event of Default is continuing, at the Collateral Agent’s request,
instruct all suppliers, carriers, forwarders, customs brokers, warehouses or
other persons receiving or holding cash, checks, Inventory, documents or
instruments in which the Collateral Agent holds a security interest to deliver
them to the Collateral Agent and/or subject to the Collateral Agent’s order, and
if they shall come into the Borrowers’ or their Subsidiaries’
Amended
and Restated Revolving Credit Agreement
-110-
ARTICLE
VI
Negative
Covenants
The
Borrowers covenant and agree with each Lender that, so long as this Agreement
shall remain in effect (other than in respect of contingent indemnification
obligations for which no claim has been made) and until the Commitments have
been terminated and the Obligations (including principal of and interest on
each
Loan, all Fees and all other expenses or amounts payable under any Loan
Document) have been paid in full and all Letters of Credit and Bankers’
Acceptances have been canceled or fully cash collateralized (in a manner
reasonably acceptable to the Administrative Agent and the Issuing Banks) or
have
expired and all amounts drawn or paid thereunder have been reimbursed in full,
unless the Required Lenders shall otherwise consent in writing, the Borrowers
will not, and will not permit any of the Material Subsidiaries to:
SECTION
6.01. Indebtedness.
Incur,
create, assume or permit to exist any Indebtedness, except:
(a) Indebtedness
existing on the Closing Date and set forth on Schedule
6.01
and any
Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness
(other than intercompany indebtedness Refinanced with Indebtedness owed to
a
person not affiliated with the Company or any Subsidiary);
(b) Indebtedness
created hereunder and under the other Loan Documents;
(c) Indebtedness
pursuant to Swap Agreements;
(d) Indebtedness
owed to (including obligations in respect of letters of credit or bank
guarantees or similar instruments for the benefit of) any person providing
workers’ compensation, health, disability or other employee benefits or
property, casualty or liability insurance to the Company or any Subsidiary,
pursuant to reimbursement or indemnification obligations to such person, in
each
case in the ordinary course of business; provided,
that
upon the incurrence of Indebtedness with respect to reimbursement obligations
regarding workers’ compensation claims, such obligations are reimbursed not
later than 30 days following such incurrence;
(e) Indebtedness
of the Company to Holdings or any Subsidiary and of any Subsidiary to Holdings,
the Company or any other Subsidiary; provided,
that
(i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing
to
the Loan Parties shall be subject to Section 6.04(b) and (ii) Indebtedness
of the Company to Holdings or any Subsidiary and Indebtedness of any other
Loan
Party to Holdings or any Subsidiary that is not a Subsidiary Loan Party (the
“Subordinated
Intercompany Debt”)
Amended
and Restated Revolving Credit Agreement
-111-
shall
be
subordinated to the Obligations on terms reasonably satisfactory to the
Administrative Agent;
(f) Indebtedness
in respect of performance bonds, bid bonds, appeal bonds, surety bonds and
completion guarantees and similar obligations, in each case provided in the
ordinary course of business, including those incurred to secure health, safety
and environmental obligations in the ordinary course of business;
(g) Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument drawn against insufficient funds in the ordinary
course of business or other cash management services in the ordinary course
of
business; provided,
that
(x) such Indebtedness (other than credit or purchase cards) is extinguished
within ten Business Days of notification to the applicable Borrower of its
incurrence and (y) such Indebtedness in respect of credit or purchase cards
is
extinguished within 60 days from its incurrence;
(h) (i)
Indebtedness of a Subsidiary acquired after the Closing Date or an entity merged
into or consolidated with the Company or any Subsidiary after the Closing Date
and Indebtedness assumed in connection with the acquisition of assets, which
Indebtedness in each case exists at the time of such acquisition, merger or
consolidation and is not created in contemplation of such event and where such
acquisition, merger or consolidation is permitted by this Agreement and (ii)
any
Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
provided,
(A) no
Default or Event of Default shall have occurred and be continuing or would
result therefrom;
(i) Capital
Lease Obligations, mortgage financings and purchase money Indebtedness incurred
by the Company or any Subsidiary prior to or within 270 days after the
acquisition, lease or improvement of the respective asset permitted under this
Agreement in order to finance such acquisition or improvement, and any Permitted
Refinancing Indebtedness in respect thereof; provided,
that,
if immediately after giving effect to such transaction, the Total Net First
Lien
Leverage Ratio of the Company on a Pro Forma Basis would be greater than 4.00
to
1.00, then the amount of Indebtedness incurred pursuant to this paragraph (i),
when combined with the Remaining Present Value of outstanding leases permitted
under Section 6.03, shall not exceed the greater of $150 million and 4.5% of
Consolidated Total Assets as of the end of the fiscal quarter immediately prior
to the date of such incurrence for which financial statements have been
delivered pursuant to Section 5.04;
(j) Capital
Lease Obligations incurred by the Company or any Subsidiary in respect of any
Sale and Lease-Back Transaction that is permitted under Section 6.03 and
any Permitted Refinancing Indebtedness in respect thereof;
(k) other
Indebtedness of the Company or any Subsidiary, in an aggregate principal amount
that at the time of, and after giving effect to, the incurrence thereof, would
not exceed the greater of $175 million and 5.0% of Consolidated Total Assets
as
of the end of the fiscal quarter immediately prior to the date of such
incurrence for which financial statements have been delivered pursuant to
Section 5.04;
Amended
and Restated Revolving Credit Agreement
-112-
(l) Indebtedness
of the Company pursuant to (i) the Second Lien Notes in an aggregate principal
amount that is not in excess of $750 million, (ii) the Xxxxx Senior
Subordinated Notes in an aggregate principal amount that is not in excess of
$425 million, (iii) the Covalence Senior Subordinated Notes in an aggregate
principal amount that is not in excess of $265 million, (iv) the extensions
of
Term Loans under the Term Loan Credit Agreement, and (v) any Permitted
Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(m) Guarantees
(i) by the Subsidiary Loan Parties of the Indebtedness of the Company described
in paragraph (1) of this Section 6.01, so long as the Guarantee of the Senior
Subordinated Notes or any Permitted Refinancing Indebtedness in respect thereof
is subordinated substantially on terms as set forth in the Senior Subordinated
Notes Indentures with respect to the Senior Subordinated Notes, and so long
as
any Liens securing the Guarantee of the Second Lien Notes or any Permitted
Refinancing Indebtedness in respect thereof are subject to the Intercreditor
Agreement, (ii) by the Company or any Subsidiary Loan Party of any Indebtedness
of any Borrower or any Subsidiary Loan Party expressly permitted to be incurred
under this Agreement, (iii) by the Company or any Subsidiary Loan Party of
Indebtedness otherwise permitted hereunder of Holdings or any Subsidiary that
is
not a Subsidiary Loan Party to the extent such Guarantees are permitted by
Section 6.04 (other than Section 6.04(v)), (iv) by any Foreign Subsidiary of
Indebtedness of another Foreign Subsidiary, and (v) by the Company of
Indebtedness of Foreign Subsidiaries incurred for working capital purposes
in
the ordinary course of business on ordinary business terms so long as such
Indebtedness is permitted to be incurred under Section 6.01 (s) to the
extent such Guarantees are permitted by 6.04 (other than Section 6.04(v));
provided,
that
Guarantees by the Company or any Subsidiary Loan Party under this
Section 6.01(m) of any other Indebtedness of a person that is subordinated
to other Indebtedness of such person shall be expressly subordinated to the
Obligations to at least the same extent as the Guarantee of the Senior
Subordinated Notes is under the Senior Subordinated Notes
Indentures;
(n) Indebtedness
arising from agreements of the Company or any Subsidiary providing for
indemnification, adjustment of purchase or acquisition price or similar
obligations, in each case, incurred or assumed in connection with the
Transactions and any Permitted Business Acquisition or the disposition of any
business, assets or a Subsidiary not prohibited by this Agreement, other than
Guarantees of Indebtedness incurred by any person acquiring all or any portion
of such business, assets or a Subsidiary for the purpose of financing such
acquisition;
(o) Indebtedness
in respect of letters of credit, bank guarantees, warehouse receipts or similar
instruments issued to support performance obligations and trade letters of
credit (other than obligations in respect of other Indebtedness) in the ordinary
course of business;
(p) Indebtedness
supported by a Letter of Credit, in a principal amount not in excess of the
stated amount of such Letter of Credit;
Amended
and Restated Revolving Credit Agreement
-113-
(q) Indebtedness
consisting of (i) the financing of insurance premiums or (ii) take-or-pay
obligations contained in supply arrangements, in each case, in the ordinary
course of business;
(r)
(i)
Other Indebtedness incurred by the Company or any Subsidiary Loan Party;
provided that (A) at the time of the incurrence of such Indebtedness and after
giving effect thereto, no Default or Event of Default shall have occurred and
be
continuing or would result therefrom, (B) the Company and its Subsidiaries
shall
be in Pro Forma Compliance after giving effect to the issuance incurrence or
assumption of such Indebtedness and (C) in the case of any such Indebtedness
that is secured, immediately after giving effect to the issuance, incurrence
or
assumption of such Indebtedness, the Total Net First Lien Leverage Ratio on
a
Pro Forma Basis shall not be greater than 3.75 to 1.00 and (ii) Permitted
Refinancing Indebtedness in respect thereof;
(s) Indebtedness
of Foreign Subsidiaries; provided
that the
aggregate amount of Indebtedness incurred under this clause (s), when aggregated
with all other Indebtedness incurred and outstanding pursuant to this clause
(s), shall not exceed the greater of $100 million and 10.0% of the consolidated
assets of the Foreign Subsidiaries at the time of such incurrence;
(t) unsecured
Indebtedness in respect of obligations of the Company or any Subsidiary to
pay
the deferred purchase price of goods or services or progress payments in
connection with such goods and services; provided,
that
such obligations are incurred in connection with open accounts extended by
suppliers on customary trade terms (which require that all such payments be
made
within 60 days after the incurrence of the related obligations) in the ordinary
course of business and not in connection with the borrowing of money or any
Swap
Agreements;
(u) Indebtedness
representing deferred compensation to employees of the Company or any Subsidiary
incurred in the ordinary course of business;
(v) [Reserved];
(w) Indebtedness
of Foreign Subsidiaries incurred under lines of credit or overdraft facilities
(including, but not limited to, intraday, ACH and purchasing card/T&E
services) extended by one or more financial institutions reasonably acceptable
to the Administrative Agent or one or more of the Lenders and (in each case)
established for such Foreign Subsidiaries’ ordinary course of operations (such
Indebtedness, the “Overdraft
Line”),
which
Indebtedness may be secured as, but only to the extent, provided in Section
6.02(b) and in the Security Documents;
(x) Indebtedness
incurred on behalf of, or representing Guarantees of Indebtedness of, joint
ventures not in excess, at any one time outstanding, of the greater of $175
million or 5.0% of Consolidated Total Assets as of the end of the fiscal quarter
immediately prior to the date of such incurrence for which financial statements
have been delivered pursuant to Section 5.04;
Amended
and Restated Revolving Credit Agreement
-114-
(y) Indebtedness
consisting of promissory notes issued by the Company or any Subsidiary to
current or former officers, directors and employees, their respective estates,
spouses or former spouses to finance the purchase or redemption of Equity
Interests of Holdings or any Parent Entity permitted by Section
6.06;
(z) Indebtedness
consisting of obligations of the Company or any Subsidiary under deferred
compensation or other similar arrangements incurred by such Person in connection
with the Transactions and Permitted Business Acquisitions or any other
Investment expressly permitted hereunder; and
SECTION
6.02. Liens.
Create,
incur, assume or permit to exist any Lien on any property or assets (including
stock or other securities of any person, including the Company and any
Subsidiary) at the time owned by it or on any income or revenues or rights
in
respect of any thereof, except the following (collectively, “Permitted
Liens”):
(a) Liens
on
property or assets of the Company and the Subsidiaries existing on the Closing
Date and set forth on Schedule
6.02(a)
or, to
the extent not listed in such Schedule, where such property or assets have
a
fair market value that does not exceed $10 million in the aggregate and $5
million in respect of Accounts and Inventory, and any modifications,
replacements, renewals or extensions thereof; provided, that such Liens shall
secure only those obligations that they secure on the Closing Date (and any
Permitted Refinancing Indebtedness in respect of such obligations permitted
by
Section 6.01(a)) and shall not subsequently apply to any other property or
assets of the Company or any Subsidiary other than (A) after-acquired property
that is affixed or incorporated into the property covered by such Lien, and
(B)
proceeds and products thereof;
(b) any
Lien
created under the Loan Documents (including, without limitation, Liens created
under the Security Documents securing obligations in respect of Swap Agreements
owed to a person that is a Lender or an Affiliate of a Lender at the time of
entry into such Swap Agreements) or permitted in respect of any Mortgaged
Property by the terms of the applicable Mortgage and, provided that such Liens
are subject to the terms of the Senior Lender Intercreditor Agreement, any
Lien
securing the Term Loan Credit Agreement or any Indebtedness or obligations
under
the Term Loan Credit Agreement or any “Loan Documents” thereunder; provided,
however,
in no
event shall the holders of the Indebtedness under the Overdraft Line have the
right to receive proceeds in respect of a claim in excess of $20 million in
the
aggregate (plus (i) any accrued and unpaid interest in respect of
Indebtedness incurred by the Company and the Subsidiaries under the Overdraft
Line and (ii) any accrued and unpaid fees and expenses owing by the Company
and the Subsidiaries under the Overdraft Line) from the enforcement of any
remedies available to the Secured Parties under all of the Loan
Documents;
Amended
and Restated Revolving Credit Agreement
-115-
(c) any
Lien
on any property or asset (other than Accounts and Inventory unless such Accounts
and Inventory are held by a Subsidiary that is not a Borrower and such Accounts
and Inventory are not commingled with the Accounts and Inventory of any other
Borrower) of the Company or any Subsidiary securing Indebtedness or Permitted
Refinancing Indebtedness permitted by Section 6.01(h); provided,
that
such Lien (i) does not apply to any other property or assets of the Company
or
any of the Subsidiaries not securing such Indebtedness at the date of the
acquisition of such property or asset (other than after acquired property
subjected to a Lien securing Indebtedness and other obligations incurred prior
to such date and which Indebtedness and other obligations are permitted
hereunder that require a pledge of after acquired property, it being understood
that such requirement shall not be permitted to apply to any property to which
such requirement would not have applied but for such acquisition), (ii) such
Lien is not created in contemplation of or in connection with such acquisition
and (iii) in the case of a Lien securing Permitted Refinancing Indebtedness,
any
such Lien is permitted, subject to compliance with clause (e) of the
definition of the term “Permitted Refinancing Indebtedness”;
(d) Liens
for
Taxes, assessments or other governmental charges or levies not yet delinquent
or
that are being contested in compliance with Section 5.03;
(e) Liens
imposed by law, such as landlord’s, carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s, construction or other like Liens arising in the
ordinary course of business and securing obligations that are not overdue by
more than 30 days or that are being contested in good faith by appropriate
proceedings and in respect of which, if applicable, the Company or any
Subsidiary shall have set aside on its books reserves in accordance with
GAAP;
(f) (i)
pledges and deposits and other Liens with respect to property other than
Accounts and Inventory made in the ordinary course of business in compliance
with the Federal Employers Liability Act or any other workers’ compensation,
unemployment insurance and other social security laws or regulations and
deposits securing liability to insurance carriers under insurance or
self-insurance arrangements in respect of such obligations and (ii) pledges
and
deposits and other Liens with respect to property other than Accounts and
Inventory securing liability for reimbursement or indemnification obligations
of
(including obligations in respect of letters of credit or bank guarantees for
the benefit of) insurance carriers providing property, casualty or liability
insurance to the Company or any Subsidiary;
(g) deposits
to secure the performance of bids, trade contracts (other than for
Indebtedness), leases (other than Capital Lease Obligations), statutory
obligations, surety and appeal bonds, performance and return of money bonds,
bids, leases, government contracts, trade contracts, agreements with utilities,
and other obligations of a like nature (including letters of credit in lieu
of
any such bonds or to support the issuance thereof) incurred in the ordinary
course of business, including those incurred to secure health, safety and
environmental obligations in the ordinary course of business;
Amended
and Restated Revolving Credit Agreement
-116-
(h) zoning
restrictions, survey exceptions and such matters as an accurate survey would
disclose, easements, trackage rights, leases (other than Capital Lease
Obligations), licenses, special assessments, rights-of-way, covenants,
conditions, restrictions and declaration on or with respect to the use of Real
Property, servicing agreements, development agreements, site plan agreements
and
other similar encumbrances incurred in the ordinary course of business and
title
defects or irregularities that are of a minor nature and that, in the aggregate,
do not interfere in any material respect with the ordinary conduct of the
business of the Company or any Subsidiary;
(i) Liens
securing Indebtedness permitted by Section 6.01(i) (limited to the assets
subject to such Indebtedness);
(j) Liens
arising out of capitalized lease transactions permitted under Section 6.03,
so long as such Liens attach only to the property sold and being leased in
such
transaction and any accessions thereto or proceeds thereof and related
property;
(k) Liens
securing judgments that do not constitute an Event of Default under Section
7.01(j);
(l) Liens
disclosed by the title insurance policies delivered on or subsequent to the
Closing Date and pursuant to Section 5.10 and any replacement, extension or
renewal of any such Lien; provided,
that
such replacement, extension or renewal Lien shall not cover any property other
than the property that was subject to such Lien prior to such replacement,
extension or renewal; provided,
further,
that
the Indebtedness and other obligations secured by such replacement, extension
or
renewal Lien are permitted by this Agreement;
(m) any
interest or title of a lessor or sublessor under any leases or subleases entered
into by the Company or any Subsidiary in the ordinary course of
business;
(n) Liens
that are contractual rights of set-off (i) relating to the establishment of
depository relations with banks not given in connection with the issuance of
Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Company
or any Subsidiary to permit satisfaction of overdraft or similar obligations
incurred in the ordinary course of business of the Company or any Subsidiary
or
(iii) relating to purchase orders and other agreements entered into with
customers of the Company or any Subsidiary in the ordinary course of
business;
(o) Liens
arising solely by virtue of any statutory or common law provision relating
to
banker’s liens, rights of set-off or similar rights;
(p) Liens
securing obligations in respect of trade-related letters of credit, banker’s
acceptances or bank guarantees permitted under Section 6.01(f), (k) or (o)
and covering the goods (or the documents of title in respect of such goods)
financed by such letters of credit, bankers’ acceptances or bank guarantees and
the proceeds and products thereof;
Amended
and Restated Revolving Credit Agreement
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(q) leases
or
subleases, licenses or sublicenses (including with respect to intellectual
property and software) granted to others in the ordinary course of business
not
interfering in any material respect with the business of the Company and its
Subsidiaries, taken as a whole;
(r) Liens
in
favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of
goods;
(s) Liens
solely on any xxxx xxxxxxx money deposits made by the Company or any of the
Subsidiaries in connection with any letter of intent or purchase agreement
in
respect of any Investment permitted hereunder;
(t) Liens
with respect to property or assets of any Foreign Subsidiary securing
Indebtedness of a Foreign Subsidiary permitted under
Section 6.01;
(u) other
Liens with respect to property or assets of the Company or any Subsidiary;
provided
that (i)
after giving effect to any such Lien and the incurrence of Indebtedness, if
any,
secured by such Lien is created, incurred, acquired or assumed (or any prior
Indebtedness becomes so secured) on a Pro Forma Basis, the Total Net First
Lien
Leverage Ratio on the last day of the Company’s then most recently completed
fiscal quarter for which financial statements are available shall be less than
or equal to 3.75 to 1.00, (ii) at the time of the incurrence of such Lien and
after giving effect thereto, no Default or Event of Default shall have occurred
and be continuing or would result therefrom, (iii) the Indebtedness or other
obligations secured by such Lien are otherwise permitted by this Agreement,
and
(iv) to the extent such Liens are pari passu or subordinated to the Liens
granted hereunder, an intercreditor agreement reasonably satisfactory to the
Administrative Agent shall be entered into providing that such new liens will
be
secured equally and ratably with the Liens granted hereunder, or, as applicable,
subordinated to the Liens granted hereunder, in each case, on customary terms,
or, in the case of Liens on Accounts or Inventory of the Borrowers and the
Domestic Subsidiaries, on terms no less favorable to the Lenders than those
set
forth in the Intercreditor Agreement; provided further
that any
Liens on Accounts or Inventory of the Borrowers or the Domestic Subsidiaries
incurred pursuant to this Section 6.02(u) shall be subordinated to the Liens
granted hereunder.
(v) the
prior
rights of consignees and their lenders under consignment arrangements entered
into in the ordinary course of business;
(w) agreements
to subordinate any interest of the Company or any Subsidiary in any accounts
receivable or other proceeds arising from inventory consigned by the Company
or
any of its Subsidiaries pursuant to an agreement entered into in the ordinary
course of business;
(x) Liens
arising from precautionary Uniform Commercial Code financing statements or
consignments entered into in connection with any transaction otherwise permitted
under this Agreement;
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(y) Liens
on
Equity Interests in joint ventures securing obligations of such joint venture;
(z) Liens
on
securities that are the subject of repurchase agreements constituting Permitted
Investments under clause (c) of the definition thereof;
(aa) [Reserved];
(bb) Liens
on
goods or inventory the purchase, shipment or storage price of which is financed
by a documentary letter of credit, bank guarantee or bankers’ acceptance issued
or created for the account of a Borrower or any Subsidiary in the ordinary
course of business; provided,
that
such Lien secures only the obligations of such Borrower or such Subsidiaries
in
respect of such letter of credit, bankers’ acceptance or bank guarantee to the
extent permitted under Section 6.01;
(cc) Liens
securing insurance premiums financing arrangements, provided,
that
such Liens are limited to the applicable unearned insurance premiums;
(dd) Liens
in
favor of the Company or any Subsidiary Loan Party; provided
that if
any such Lien shall cover any Collateral, the holder of such Lien shall execute
and deliver to the Administrative Agent a subordination agreement in form and
substance reasonably satisfactory to the Administrative Agent;
(ee) Liens
securing obligations under the Second Lien Note Documents and any Permitted
Refinancing Indebtedness in respect thereof, to the extent such Liens are
subject to the Intercreditor Agreement;
(ff) Liens
on
not more than $30 million of deposits securing Swap Agreements; and
SECTION
6.03. Sale
and Lease-Back Transactions.
Enter
into any arrangement, directly or indirectly, with any person whereby it shall
sell or transfer any property, real or personal, used or useful in its business,
whether now owned or hereafter acquired, and thereafter rent or lease such
property or other property that it intends to use for substantially the same
purpose or purposes as the property being sold or transferred (a “Sale
and Lease-Back Transaction”);
provided,
that a
Sale and Lease-Back Transaction shall be permitted (A) with respect to property
(i) owned by the Company or any Domestic Subsidiary that is acquired after
the
Closing Date so long as such Sale and Lease-Back Transaction is consummated
within 180 days of the acquisition of such property or (ii) by any Foreign
Subsidiary regardless of when such property was acquired, and (B) with respect
to any property owned by the Company or any Domestic Subsidiary, if at the
time
the lease in connection therewith is entered into, and after giving effect
to
the entering into of such lease, (a) the Total Net First Lien Leverage Ratio
is
equal to or less than 4.00 to 1.00, or (b) if the Total Net First Lien Leverage
Ratio is greater than 4.00 to 1.00, the Remaining Present Value of such lease,
together with Indebtedness outstanding
Amended
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SECTION
6.04. Investments,
Loans and Advances.
Purchase, hold or acquire (including pursuant to any merger with a person that
is not a Wholly Owned Subsidiary immediately prior to such merger) any Equity
Interests, evidences of Indebtedness or other securities of, make or permit
to
exist any loans or advances to or Guarantees of the obligations of, or make
or
permit to exist any investment or any other interest in (each, an “Investment”),
any
other person, except:
(a) the
Transactions;
(b) (i)
Investments by the Company or any Subsidiary in the Equity Interests of the
Company or any Subsidiary; (ii) intercompany loans from the Company or any
Subsidiary to the Company or any Subsidiary; and (iii) Guarantees by the Company
or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted
hereunder of the Company or any Subsidiary; provided,
that
the sum of (A) Investments (valued at the time of the making thereof and without
giving effect to any write-downs or write-offs thereof) made after the Closing
Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are
not Subsidiary Loan Parties, plus
(B) net
intercompany loans made after the Closing Date to Subsidiaries that are not
Subsidiary Loan Parties pursuant to clause (ii), plus
(C)
Guarantees of Indebtedness after the Closing Date of Subsidiaries that are
not
Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an
aggregate net amount equal to (x) the greater of (1) $100 million and
(2) 4.5% of Consolidated Total Assets as of the end of the fiscal quarter
immediately prior to the date of such Investment for which financial statements
have been delivered pursuant to Section 5.04 (plus
any
return of capital actually received by the respective investors in respect
of
Investments theretofore made by them pursuant to this paragraph (b));
plus
(y) the portion, if any, of the Cumulative Credit on the date of such
election that the Company elects to apply to this Section 6.04(b)(y), such
election to be specified in a written notice of a Responsible Officer of the
Company calculating in reasonable detail the amount of Cumulative Credit
immediately prior to such election and the amount thereof elected to be so
applied; provided,
further,
that
intercompany current liabilities incurred in the ordinary course of business
in
connection with the cash management operations of the Company and the
Subsidiaries shall not be included in calculating the limitation in this
paragraph at any time.
(c) Permitted
Investments and Investments that were Permitted Investments when
made;
(d) Investments
arising out of the receipt by the Company or any Subsidiary of noncash
consideration for the sale of assets permitted under
Section 6.05;
Amended
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(e) loans
and
advances to officers, directors, employees or consultants of the Company or
any
Subsidiary (i) in the ordinary course of business not to exceed the greater
of
$25 million and 1.0% of Consolidated Total Assets as of the end of the fiscal
quarter immediately prior to the date of such loan or advance for which
financial statements have been delivered pursuant to Section 5.04, in the
aggregate at any time outstanding (calculated without regard to write downs
or
write offs thereof), (ii) in respect of payroll payments and expenses in the
ordinary course of business and (iii) in connection with such person’s purchase
of Equity Interests of Holdings (or any Parent Entity) solely to the extent
that
the amount of such loans and advances shall be contributed to the Company in
cash as common equity;
(f) accounts
receivable, security deposits and prepayments arising and trade credit granted
in the ordinary course of business and any assets or securities received in
satisfaction or partial satisfaction thereof from financially troubled account
debtors to the extent reasonably necessary in order to prevent or limit loss
and
any prepayments and other credits to suppliers made in the ordinary course
of
business;
(g) Swap
Agreements;
(h) Investments
existing on, or contractually committed as of, the Closing Date and set forth
on
Schedule 6.04
and any
extensions, renewals or reinvestments thereof, so long as the aggregate amount
of all Investments pursuant to this clause (h) is not increased at any time
above the amount of such Investment existing on the Closing Date;
(i) Investments
resulting from pledges and deposits under Sections 6.02(f), (g), (k), (r),
(s), and (u);
(j) other
Investments by the Company or any Subsidiary in an aggregate amount (valued
at
the time of the making thereof, and without giving effect to any write-downs
or
write-offs thereof) not to exceed (i) the greater of $225 million and 6.5%
of
Consolidated Total Assets as of the end of the fiscal quarter immediately prior
to the date of such incurrence for which financial statements have been
delivered pursuant to Section 5.04 (plus
any
returns of capital actually received by the respective investor in respect
of
investments theretofore made by it pursuant to this paragraph (j))
plus
(ii) the
portion, if any, of the Cumulative Credit on the date of such election that
the
Company elects to apply to this Section 6.04(j)(ii), such election to be
specified in a written notice of a Responsible Officer of the Company
calculating in reasonable detail the amount of Cumulative Credit immediately
prior to such election and the amount thereof elected to be so
applied;
(k) Investments
constituting Permitted Business Acquisitions;
(l) intercompany
loans between Foreign Subsidiaries and Guarantees by Foreign Subsidiaries
permitted by Section 6.01(m);
(m) Investments
received in connection with the bankruptcy or reorganization of, or settlement
of delinquent accounts and disputes with or judgments against,
Amended
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customers
and suppliers, in each case in the ordinary course of business or Investments
acquired by the Company as a result of a foreclosure by the Company or any
of
the Subsidiaries with respect to any secured Investments or other transfer
of
title with respect to any secured Investment in default;
(n) Investments
of a Subsidiary acquired after the Closing Date or of an entity merged into
the
Company or merged into or consolidated with a Subsidiary after the Closing
Date,
in each case, to the extent permitted under this Section 6.04 and, in the case
of any merger or consolidation, in accordance with Section 6.05 to the
extent that such Investments were not made in contemplation of or in connection
with such acquisition, merger or consolidation and were in existence on the
date
of such acquisition, merger or consolidation;
(o) acquisitions
by the Company of obligations of one or more officers or other employees of
Holdings, any Parent Entity, the Company or its Subsidiaries in connection
with
such officer’s or employee’s acquisition of Equity Interests of Holdings or any
Parent Entity, so long as no cash is actually advanced by the Company or any
of
the Subsidiaries to such officers or employees in connection with the
acquisition of any such obligations;
(p) Guarantees
by the Company or any Subsidiary of operating leases (other than Capital Lease
Obligations) or of other obligations that do not constitute Indebtedness, in
each case entered into by the Company or any Subsidiary in the ordinary course
of business;
(q) Investments
to the extent that payment for such Investments is made with Equity Interests
of
Holdings (or any Parent Entity);
(r) Investments
in the equity interests of one or more newly formed persons that are received
in
consideration of the contribution by Holdings, the Company or the applicable
Subsidiary of assets (including Equity Interests and cash) to such person or
persons; provided,
that
(i) the fair market value of such assets, determined on an arms’-length basis,
so contributed pursuant to this paragraph (r) shall not in the aggregate exceed
$30 million and (ii) in respect of each such contribution, a Responsible Officer
of the Company shall certify, in a form to be agreed upon by the Company and
the
Administrative Agent (x) after giving effect to such contribution, no Default
or
Event of Default shall have occurred and be continuing, (y) the fair market
value of the assets so contributed and (z) that the requirements of paragraph
(i) of this proviso remain satisfied;
(s) Investments
consisting of the redemption, purchase, repurchase or retirement of any Equity
Interests permitted under Section 6.06;
(t) Investments
in the ordinary course of business consisting of Uniform Commercial Code Article
3 endorsements for collection or deposit and Uniform Commercial Code Article
4
customary trade arrangements with customers consistent with past practices;
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(u) Investments
in Foreign Subsidiaries not to exceed the greater of $75 million and 2.0% of
Consolidated Total Assets as of the end of the fiscal quarter immediately prior
to the date of such Investment for which financial statements have been
delivered pursuant to Section 5.04, in the aggregate, as valued at the fair
market value of such Investment at the time such Investment is
made;
(v) Guarantees
permitted under Section 6.01 (except to the extent such Guarantee is expressly
subject to Section 6.04);
(w) advances
in the form of a prepayment of expenses, so long as such expenses are being
paid
in accordance with customary trade terms of the Company or such
Subsidiary;
(x) Investments
by the Company and its Subsidiaries, including loans to any direct or indirect
parent of the Company, if such Borrower or any other Subsidiary would otherwise
be permitted to make a dividend or distribution in such amount (provided that
the amount of any such investment shall also be deemed to be a distribution
under the appropriate clause of Section 6.06 for all purposes of this
Agreement);
(y) [Reserved];
(z) Investments
received substantially contemporaneously in exchange for Equity Interests of
any
Parent Entity; provided
that
such Investments are not included in any determination of the Cumulative Credit;
and
(aa) Investments
in joint ventures not in excess of the greater of $75 million and 2.0% of
Consolidated Total Assets as of the end of the fiscal quarter immediately prior
to the date of such Investment for which financial statements have been
delivered pursuant to Section 5.04, in the aggregate.
The
amount of Investments that may be made at any time pursuant to clause (C) of
the
proviso of Section 6.04(b) or 6.04(j) (such Sections, the “Related
Sections”)
may,
at the election of the Company, be increased by the amount of Investments that
could be made at such time under the other Related Section; provided
that the
amount of each such increase in respect of one Related Section shall be treated
as having been used under the other Related Section.
SECTION
6.05. Mergers,
Consolidations, Sales of Assets and Acquisitions.
Merge
into or consolidate with any other person, or permit any other person to merge
into or consolidate with it, or sell, transfer, lease or otherwise dispose
of
(in one transaction or in a series of transactions) all or any part of its
assets (whether now owned or hereafter acquired), or issue, sell, transfer
or
otherwise dispose of any Equity Interests of the Company or any Subsidiary,
or
purchase, lease or otherwise acquire (in one transaction or a series of
transactions) all or any substantial part of the assets of any other person
or
any division, unit or business of any person, except that this
Section shall not prohibit:
(a) (i)
the
purchase and sale of inventory in the ordinary course of business by the Company
or any Subsidiary and the sale of receivables by any Foreign Subsidiary pursuant
to non-recourse factoring arrangements in the ordinary course of business
of
Amended
and Restated Revolving Credit Agreement
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such
Foreign Subsidiary, (ii) the acquisition or lease (pursuant to an operating
lease) of any other asset in the ordinary course of business by the Company
or
any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or
other property in the ordinary course of business by the Company or any
Subsidiary or (iv) the sale of Permitted Investments in the ordinary course
of
business;
(b) if
at the
time thereof and immediately after giving effect thereto no Default or Event
of
Default shall have occurred and be continuing or would result therefrom, (i)
the
merger of any Subsidiary into the Company in a transaction in which the Company
is the survivor, (ii) the merger or consolidation of any Subsidiary into or
with
any Subsidiary Loan Party in a transaction in which the surviving or resulting
entity is a Subsidiary Loan Party and, in the case of each of clauses (i)
and (ii), no person other than the Company or Subsidiary Loan Party receives
any
consideration, (iii) the merger or consolidation of any Subsidiary that is
not a
Subsidiary Loan Party into or with any other Subsidiary that is not a Subsidiary
Loan Party, (iv) the liquidation or dissolution or change in form of entity
of
any Subsidiary (other than the Company) if the Company determines in good faith
that such liquidation, dissolution or change in form is in the best interests
of
the Company and is not materially disadvantageous to the Lenders or (v) any
Subsidiary may merge with any other person in order to effect an Investment
permitted pursuant to Section 6.04 so long as the continuing or surviving person
shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary
was
a Loan Party and which together with each of its Subsidiaries shall have
complied with the requirements of Section 5.10;
(c) sales,
transfers, leases or other dispositions to the Company or a Subsidiary (upon
voluntary liquidation or otherwise); provided,
that
any sales, transfers, leases or other dispositions by a Loan Party to a
Subsidiary that is not a Subsidiary Loan Party in reliance on this
paragraph (c) shall be made in compliance with Section 6.07 and shall
be included in Section 6.05(g);
(d) Sale
and
Lease-Back Transactions permitted by Section 6.03;
(e) Investments
permitted by Section 6.04, Permitted Liens, Dividends permitted by Section
6.06
and capital expenditures;
(f) the
sale
of defaulted receivables in the ordinary course of business and not as part
of
an accounts receivables financing transaction;
(g) sales,
transfers, leases or other dispositions of assets not otherwise permitted by
this Section 6.05 (or required to be included in this clause (g) pursuant
to Section 6.05(c)); provided,
that
(i) the aggregate gross proceeds (including noncash proceeds) of any or all
assets sold, transferred, leased or otherwise disposed of in reliance upon
this
paragraph (g) shall not exceed, in any fiscal year of the Company, the
greater of (x) $200 million and (y) 6.5% of Consolidated Total Assets
as of the end of the fiscal quarter immediately prior to the date of such
incurrence for which financial statements have been delivered pursuant to
Section 5.04, (ii) no Default or Event of Default exists or would result
therefrom; (iii) immediately after giving effect thereto, the
Revolving
Amended
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Facility
Credit Exposure shall not exceed the Borrowing Base calculated on a Pro Forma
Basis after giving effect to such sale, transfer, lease or other disposition,
and (iv) immediately after giving effect to any such sale, lease, transfer,
lease or other disposition of Accounts or Inventory not undertaken in the
ordinary course of business, the Revolving Facility Credit Exposure shall not
exceed the Borrowing Base;
(h) Permitted
Business Acquisitions (including any merger or consolidation in order to effect
a Permitted Business Acquisition); provided,
that
following any such merger or consolidation (i) involving the Company, the
Company is the surviving corporation, (ii) involving a Domestic Subsidiary,
the
surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly
Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or
resulting entity shall be a Wholly Owned Subsidiary;
(i) leases,
licenses (on a non-exclusive basis with respect to intellectual property),
or
subleases or sublicenses (on a non-exclusive basis with respect to intellectual
property) of any real or personal property in the ordinary course of
business;
(j) sales,
leases or other dispositions of inventory of the Company and its Subsidiaries
determined by the management of the Company to be no longer useful or necessary
in the operation of the business of the Company or any of the
Subsidiaries;
(k) acquisitions
and purchases made with the proceeds of any Asset Sale pursuant to the first
proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [Reserved];
(m) any
exchange of assets for services and/or other assets of comparable or greater
value; provided,
that
(i) at least 90% of the consideration received by the transferor consists of
assets that will be used in a business or business activity permitted hereunder,
(ii) in the event of a swap with a fair market value in excess of $10.0 million,
the Administrative Agent shall have received a certificate from a Responsible
Officer of the Company with respect to such fair market value and (iii) in
the
event of a swap with a fair market value in excess of $20.0 million, such
exchange shall have been approved by at least a majority of the Board of
Directors of Holdings or the Company; provided,
that
(A) the aggregate gross consideration (including exchange assets, other noncash
consideration and cash proceeds) of any or all assets exchanged in reliance
upon
this paragraph (m) shall not exceed, in any fiscal year of the Company, the
greater of $200 million and 6.5% of Consolidated Total Assets as of the end
of
the fiscal quarter immediately prior to the date of such incurrence for which
financial statements have been delivered pursuant to Section 5.04, (B) no
Default or Event of Default exists or would result therefrom and (C) immediately
after giving effect to such exchange, the Revolving Facility Credit Exposure
shall not exceed the Borrowing Base calculated on a Pro Forma Basis after giving
effect to such exchange;
(n) the
sale
of assets described on Schedule
6.05;
and
(o) the
Business Combination.
Amended
and Restated Revolving Credit Agreement
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Notwithstanding
anything to the contrary contained in Section 6.05 above, (i) no sale,
transfer or other disposition of assets shall be permitted by this
Section 6.05 (other than sales, transfers, leases, licenses or other
dispositions to Loan Parties pursuant to paragraph (c) of this Section
6.05) unless such disposition is for fair market value and (ii) no sale,
transfer or other disposition of assets in excess of $15 million shall be
permitted by paragraph (g) of this Section 6.05 unless such
disposition is for at least 75% cash consideration; provided,
that
for purposes of clause (ii), (a) the amount of any liabilities (as shown on
the Company’s or any Subsidiary’s most recent balance sheet or in the notes
thereto) of the Company or any Subsidiary of the Company (other than liabilities
that are by their terms subordinated to the Obligations) that are assumed by
the
transferee of any such assets, (b) any notes or other obligations or other
securities or assets received by the Company or such Subsidiary of the Company
from such transferee that are converted by the Company or such Subsidiary of
the
Company into cash within 180 days of the receipt thereof (to the extent of
the
cash received) and (c) any Designated Non-Cash Consideration received by the
Company or any of its Subsidiaries in such Asset Sale having an aggregate fair
market value, taken together with all other Designated Non-Cash Consideration
received pursuant to this clause (c) that is at that time outstanding, not
to
exceed the greater of 3.0% of Consolidated Total Assets and $100 million at
the
time of the receipt of such Designated Non-Cash Consideration (with the fair
market value of each item of Designated Non-Cash Consideration being measured
at
the time received and without giving effect to subsequent changes in value)
shall be deemed to be cash. To the extent any Collateral is disposed of in
a
transaction expressly permitted by this Section 6.05 to any Person other than
Holdings, the Company or any Subsidiary, such Collateral shall be sold free
and
clear of the Liens created by the Loan Documents, and the Administrative Agent
shall take, and shall be authorized by each Lender to take, any actions
reasonably requested by the Company in order to evidence the foregoing. Anything
contained herein to the contrary notwithstanding, (A) neither the Company nor
any other Loan Party shall sell or otherwise dispose of any Inventory or
Accounts (other than sales of Inventory in the ordinary course of business
and
sales of Accounts for collection) if, as a result of such sale or other
disposition, the Revolving Facility Credit Exposure would exceed the Borrowing
Base, in each case determined as of the time of such sale or other disposition,
and (B) none of the capital stock of any Borrower shall be sold or transferred,
nor shall any Borrower enter into any merger or similar transaction in which
such Borrower is not the surviving entity, unless in any such case (1) the
obligations of such Borrower are assumed by another Borrower on terms reasonably
acceptable to the Administrative Agent, (2) such event would not result in
a
Default or an Event of Default, and (3) the portion of the Revolving Facility
Credit Exposure of the assuming Borrower does not exceed the portion of the
Borrowing Base attributable to the Accounts and Inventory of the assuming
Borrower.
SECTION
6.06. Dividends
and Distributions.
Declare
or pay any dividend or make any other distribution (by reduction of capital
or
otherwise), whether in cash, property, securities or a combination thereof,
with
respect to any of its Equity Interests (other than dividends and distributions
on Equity Interests payable solely by the issuance of additional Equity
Interests (other than Disqualified Stock) of the person paying such dividends
or
distributions) or directly or indirectly redeem, purchase, retire or otherwise
acquire for value (or permit any Subsidiary to purchase or acquire) any of
its
Equity Interests or set aside any amount
Amended
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for
any
such purpose (other than through the issuance of additional Equity Interests
(other than Disqualified Stock) of the person redeeming, purchasing, retiring
or
acquiring such shares) (collectively, the “Distributions”);
provided,
however,
that:
(a) any
Subsidiary of the Company may declare and pay dividends to, repurchase its
Equity Interests from or make other distributions to the Company or to any
Wholly Owned Subsidiary of the Company (or, in the case of non-Wholly Owned
Subsidiaries, to the Company or any Subsidiary that is a direct or indirect
shareholder of such Subsidiary and to each other owner of Equity Interests
of
such Subsidiary on a pro
rata
basis
(or more favorable basis from the perspective of the Company or such Subsidiary)
based on their relative ownership interests so long as any repurchase of its
Equity Interests from a person that is not the Company or a Subsidiary is
permitted under Section 6.04);
(b) the
Company may declare and pay dividends or make other distributions to Holdings
in
respect of (i) overhead, legal, accounting and other professional fees and
expenses of Holdings or any Parent Entity, (ii) fees and expenses related to
any
public offering or private placement of debt or equity securities of Holdings
or
any Parent Entity whether or not consummated, (iii) franchise taxes and other
fees, taxes and expenses in connection with the maintenance of its existence
and
its (or any Parent Entity’s indirect) ownership of the Company, (iv) payments
permitted by Section 6.07(b), (v) the tax liability to each relevant
jurisdiction in respect of consolidated, combined, unitary or affiliated returns
for the relevant jurisdiction of Holdings (or any Parent Entity) attributable
to
Holdings, the Company or its Subsidiaries and (vi) customary salary, bonus
and
other benefits payable to, and indemnities provided on behalf of, officers
and
employees of Holdings or any Parent Entity, in each case in order to permit
Holdings or any Parent Entity to make such payments; provided,
that in
the case of clauses (i), (ii) and (iii), the amount of such dividends and
distributions shall not exceed the portion of any amounts referred to in such
clauses (i), (ii) and (iii) that are allocable to the Company and its
Subsidiaries (which shall be 100% for so long as Holdings or such Parent Entity,
as the case may be, owns no assets other than the Equity Interests in the
Company, Holdings or another Parent Entity);
(c) the
Company may declare and pay dividends or make other distributions to Holdings
the proceeds of which are used to purchase or redeem the Equity Interests of
Holdings or any Parent Entity (including related stock appreciation rights
or
similar securities) held by then present or former directors, consultants,
officers or employees of Holdings, the Company or any of the Subsidiaries or
by
any Plan or shareholders’ agreement then in effect upon such person’s death,
disability, retirement or termination of employment or under the terms of any
such Plan or any other agreement under which such shares of stock or related
rights were issued; provided,
that
the aggregate amount of such purchases or redemptions under this
paragraph (c) shall not exceed in any fiscal year $20 million (plus the
amount of net proceeds contributed to the Company that were (x) received by
Holdings or any Parent Entity during such calendar year from sales of Equity
Interests of Holdings or any Parent Entity of Holdings to directors,
consultants, officers or employees of Holdings, any Parent Entity, the Company
or any Subsidiary in connection with permitted employee compensation and
incentive arrangements and (y) of
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any
key-man life insurance policies received during such calendar year), which,
if
not used in any year, may be carried forward to any subsequent calendar
year;
(d) noncash
repurchases of Equity Interests deemed to occur upon exercise of stock options
if such Equity Interests represent a portion of the exercise price of such
options;
(e) the
Company may pay dividends to Holdings in an aggregate amount equal to the
portion, if any, of the Cumulative Credit on such date that the Company elects
to apply to this Section 6.06(e), such election to be specified in a written
notice of a Responsible Officer of the Company calculating in reasonable detail
the amount of Cumulative Credit immediately prior to such election and the
amount thereof elected to be so applied; provided,
that no
Default or Event of Default has occurred and is continuing or would result
therefrom and, after giving effect thereto, that the Company and its
Subsidiaries shall be in Pro Forma Compliance;
(f) the
Company may pay dividends on the Closing Date to consummate the Transactions;
(g) the
Company may pay dividends or distributions to allow Holdings or any Parent
Entity to make payments in cash, in lieu of the issuance of fractional shares,
upon the exercise of warrants or upon the conversion or exchange of Equity
Interests of any such person;
(h) after
a
Qualified IPO, the Company may pay dividends and make distributions to, or
repurchase or redeem shares from, its equity holders in an amount equal to
6.0%
per annum of the net proceeds received by the Company from any public offering
of Equity Interests of the Company or any direct or indirect parent of the
Company;
(i) the
Company may make distributions to Holdings or any Parent Entity to finance
any
Investment permitted to be made pursuant to Section 6.04; provided,
that
(A) such distribution shall be made substantially concurrently with the closing
of such Investment and (B) such parent shall, immediately following the closing
thereof, cause (1) all property acquired (whether assets or Equity Interests)
to
be contributed to the Company or a Subsidiary or (2) the merger (to the extent
permitted in Section 6.05) of the Person formed or acquired into the Company
or
a Subsidiary in order to consummate such Permitted Business Acquisition or
Investment; and
SECTION
6.07. Transactions
with Affiliates.
xxix) Sell
or transfer any property or assets to, or purchase or acquire any property
or
assets from, or otherwise engage in any other transaction with, any of its
Affiliates or any known direct or indirect holder of 10% or more of any class
of
capital stock of Holdings or the Company in a transaction involving aggregate
consideration in excess of $5 million, unless such transaction is (i) otherwise
permitted (or
Amended
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required)
under this Agreement or (ii) upon terms no less favorable to the Company or
such
Subsidiary, as applicable, than would be obtained in a comparable arm’s-length
transaction with a person that is not an Affiliate.
(b) The
foregoing paragraph (a) shall not prohibit, to the extent otherwise
permitted under this Agreement,
(i) any
issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, equity
purchase agreements, stock options and stock ownership plans approved by the
Board of Directors of Holdings or of the Company,
(ii) loans
or
advances to employees or consultants of Holdings (or any Parent Entity), the
Company or any of the Subsidiaries in accordance with Section
6.04(e),
(iii) transactions
among the Company or any Subsidiary or any entity that becomes a Subsidiary
as a
result of such transaction (including via merger or consolidation in which
a
Subsidiary is the surviving entity) not prohibited by this
Agreement,
(iv) the
payment of fees, reasonable out-of-pocket costs and indemnities to directors,
officers, consultants and employees of Holdings, any Parent Entity, the Company
and the Subsidiaries in the ordinary course of business (limited,
in the case of any Parent Entity, to the portion of such fees and expenses
that
are allocable to the Company
and
its
Subsidiaries (which shall be 100% for so long as Holdings or such Parent Entity,
as the case may be, owns no assets other than the Equity Interests in the
Company,
Holdings or another Parent Entity and assets incidental to the ownership of
the
Company
and
its
Subsidiaries)),
(v) subject
to the limitations set forth in Section 6.07(b)(xiv), if applicable,
transactions pursuant to the Transaction Documents and permitted agreements
in
existence on the Closing Date and set forth on Schedule 6.07
or any
amendment thereto to the extent such amendment is not adverse to the Lenders
in
any material respect and other transactions, agreements and arrangements
described on Schedule
6.07
and any
amendment thereto to the extent such amendment is not adverse to the Lenders
in
any material respect or similar transactions, agreements or arrangements entered
into by the Company or any of its Subsidiaries.
(vi) (A)
any
employment agreements entered into by the Company or any of the Subsidiaries
in
the ordinary course of business, (B) any subscription agreement or similar
agreement pertaining to the repurchase of Equity Interests pursuant to put/call
rights or similar rights with employees, officers or directors, and (C) any
employee compensation, benefit plan or arrangement, any health, disability
or
similar insurance plan which covers employees, and any reasonable employment
contract and transactions pursuant thereto,
(vii) dividends,
redemptions and repurchases permitted under Section 6.06, including
payments to Holdings (and any Parent Entity),
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(viii) any
purchase by Holdings of the equity capital of the Company; provided,
that
any Equity Interests of the Company purchased by Holdings shall be pledged
to
the Administrative Agent on behalf of the Lenders pursuant to the Collateral
Agreement,
(ix) payments
by the Company or any of the Subsidiaries to any Fund or any Fund Affiliate
made
for any financial advisory, financing, underwriting or placement services or
in
respect of other investment banking activities, including in connection with
acquisitions or divestitures, which payments are approved by the majority of
the
Board of Directors of the Company, or a majority of disinterested members of
the
Board of Directors of the Company, in good faith,
(x) transactions
with Wholly Owned Subsidiaries for the purchase or sale of goods, products,
parts and services entered into in the ordinary course of business in a manner
consistent with past practice,
(xi) any
transaction in respect of which the Company delivers to the Administrative
Agent
(for delivery to the Lenders) a letter addressed to the Board of Directors
of
the Company from an accounting, appraisal or investment banking firm, in each
case of nationally recognized standing that is (A) in the good faith
determination of the Company qualified to render such letter and (B) reasonably
satisfactory to the Administrative Agent, which letter states that such
transaction is on terms that are no less favorable to the Company or such
Subsidiary, as applicable, than would be obtained in a comparable arm’s-length
transaction with a person that is not an Affiliate,
(xii) subject
to paragraph (xiv) below, the payment of all fees, expenses, bonuses and awards
related to the Transactions contemplated by the Information Memorandum,
including fees to any Fund or any Fund Affiliates and as set forth on
Schedule
6.07,
(xiii) transactions
with joint ventures for the purchase or sale of goods, equipment and services
entered into in the ordinary course of business and in a manner consistent
with
past practice,
(xiv) any
agreement to pay, and the payment of, monitoring, management, transaction,
advisory or similar fees payable to any Fund or any Fund Affiliate (A) in an
aggregate amount in any fiscal year not to exceed the sum of (1) the greater
of
$7.5 million and 2.0% of EBITDA for such fiscal year, plus reasonable out of
pocket costs and expenses in connection therewith and unpaid amounts accrued
for
prior periods; plus (2) any deferred fees (to the extent such fees were within
such amount in clause (A) (1) above originally), plus (B) 2.0% of the value
of
transactions with respect to which any Fund or any Fund Affiliate provides
any
transaction, advisory or other services, plus (C) so long as no Availability
Triggering Event or Event of Default has occurred and is continuing, in the
event of a Qualified IPO, the present value of all future amounts payable
pursuant to any agreement referred to in clause (A) (1) above in connection
with
the termination of such agreement with the Funds and Fund Affiliates (the
“Fund
Termination Fee”);
provided,
that if
any such payment pursuant to clause (C) is not permitted to be paid as a result
of an Availability Triggering Event or Event of Default,
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such
payment shall accrue and may be payable when no Availability Triggering Event
or
Events of Default are continuing to the extent that no further Availability
Triggering Event or Event of Default would result therefrom,
(xv) the
issuance, sale, transfer of Equity Interests of Company to Holdings and capital
contributions by Holdings to Company,
(xvi) the
Business Combination and all transactions in connection therewith,
or
SECTION
6.08. Business
of the Borrowers and the Subsidiaries.
Notwithstanding any other provisions hereof, engage at any time in any business
or business activity other than any business or business activity conducted
by
any of them on the Closing Date and any business or business activities
incidental or related thereto, or any business or activity that is reasonably
similar or complementary thereto or a reasonable extension, development or
expansion thereof or ancillary thereto.
SECTION
6.09. Limitation
on Modifications of Indebtedness; Modifications of Certificate of Incorporation,
By-Laws and Certain Other Agreements; etc. xxx) Amend
or modify in any manner materially adverse to the Lenders, or grant any waiver
or release under or terminate in any manner (if such granting or termination
shall be materially adverse to the Lenders), the articles or certificate of
incorporation, by-laws, limited liability company operating agreement,
partnership agreement or other organizational documents of the Company or any
of
the Subsidiaries or the Merger Agreement.
(b) (a) Make,
or agree or offer to pay or make, directly or indirectly, any payment or other
distribution (whether in cash, securities or other property) of or in respect
of
principal of or interest on the loans under the Senior Subordinated Notes or
any
Permitted Refinancing Indebtedness in respect of the Senior Subordinated Notes
or any preferred Equity Interests or any Disqualified Stock (“Junior
Financing”),
or
any payment or other distribution (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination
in
respect of any Junior Financing except for (A) Refinancings permitted by
Section 6.01(l) or (r), (B) payments of regularly scheduled interest, and,
to the extent this Agreement is then in effect, principal on the scheduled
maturity date of any Junior Financing, (C) payments or distributions in respect
of all or any portion of the Junior Financing with the proceeds contributed
to
the Company by Holdings from the issuance, sale or exchange by Holdings (or
any
Parent Entity) of Equity Interests made within eighteen months prior thereto,
(D) the conversion of any Junior Financing to Equity Interests of Holdings
or
any Parent Entity; and (E) so long as no Default or
Amended
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Event
of
Default has occurred and is continuing or would result therefrom and after
giving effect to such payment or distribution the Company would be in Pro Forma
Compliance, payments or distributions in respect of Junior Financings prior
to
their scheduled maturity made, in an aggregate amount, not to exceed the sum
of
(x) $60 million and (y) the Cumulative Credit; or
(b) Amend
or
modify, or permit the amendment or modification of, any provision of Junior
Financing, or any agreement, document or instrument evidencing or relating
thereto, other than amendments or modifications that (A) are not in any
manner materially adverse to Lenders and that do not affect the subordination
or
payment provisions thereof (if any) in a manner adverse to the Lenders and
(B) otherwise comply with the definition of “Permitted Refinancing
Indebtedness”.
(c) Permit
any Material Subsidiary to enter into any agreement or instrument that by its
terms restricts (i) the payment of dividends or distributions or the making
of
cash advances to the Company or any Subsidiary that is a direct or indirect
shareholder of such Subsidiary or (ii) the granting of Liens by the Company
or
such Material Subsidiary pursuant to the Security Documents, in each case other
than those arising under any Loan Document, except, in each case, restrictions
existing by reason of:
1. restrictions
imposed by applicable law;
2. contractual
encumbrances or restrictions in effect on the Closing Date under Indebtedness
existing on the Closing Date and set forth on Schedule 6.01,
the
Second Lien Notes, the Senior Subordinated Notes or any agreements related
to
any Permitted Refinancing Indebtedness in respect of any such Indebtedness
that
does not expand the scope of any such encumbrance or restriction;
3. any
restriction on a Subsidiary imposed pursuant to an agreement entered into for
the sale or disposition of the Equity Interests or assets of a Subsidiary
pending the closing of such sale or disposition;
4. customary
provisions in joint venture agreements and other similar agreements applicable
to joint ventures entered into in the ordinary course of business;
5. any
restrictions imposed by any agreement relating to secured Indebtedness permitted
by this Agreement to the extent that such restrictions apply only to the
property or assets securing such Indebtedness;
6. any
restrictions imposed by any agreement relating to Indebtedness incurred pursuant
to section 6.01(r), to the extent such restrictions are not more restrictive,
taken as a whole, than the restrictions contained in the Senior Subordinated
Note Documents and Second Lien Note Documents;
7. customary
provisions contained in leases or licenses of intellectual property and other
similar agreements entered into in the ordinary course of business;
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8. customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest;
9. customary
provisions restricting assignment of any agreement entered into in the ordinary
course of business;
10. customary
restrictions and conditions contained in any agreement relating to the sale,
transfer, lease or other disposition of any asset permitted under Section 6.05
pending the consummation of such sale, transfer, lease or other disposition;
11. customary
restrictions and conditions contained in the document relating to any Lien,
so
long as (1) such Lien is a Permitted Lien and such restrictions or conditions
relate only to the specific asset subject to such Lien, and (2) such
restrictions and conditions are not created for the purpose of avoiding the
restrictions imposed by this Section 6.09;
12. customary
net worth provisions contained in Real Property leases entered into by
Subsidiaries of the Company, so long as the Company has determined in good
faith
that such net worth provisions would not reasonably be expected to impair the
ability of the Company and its Subsidiaries to meet their ongoing obligations;
13. any
agreement in effect at the time such subsidiary becomes a Subsidiary, so long
as
such agreement was not entered into in contemplation of such person becoming
a
Subsidiary other than Subsidiaries of such new Subsidiary;
14. restrictions
in agreements representing Indebtedness permitted under Section 6.01 of a
Subsidiary of the Company that is not a Subsidiary Loan Party;
15. customary
restrictions on leases, subleases, licenses or Equity Interests or asset sale
agreements otherwise permitted hereby as long as such restrictions relate to
the
Equity Interests and assets subject thereto;
16. restrictions
on cash or other deposits imposed by customers under contracts entered into
in
the ordinary course of business;
17. [Reserved];
or
(R) any
encumbrances or restrictions of the type referred to in Sections 6.09(c)(i)
and
6.09(c)(ii) above imposed by any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings
of
the contracts, instruments or obligations referred to in clauses (A) through
(Q)
above; provided that such amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings are, in the
good faith judgment of the Company, no more restrictive with respect to such
dividend and other payment restrictions than those contained in the dividend
or
other payment restrictions prior to such amendment, modification, restatement,
renewal, increase, supplement, refunding, replacement or
refinancing.
SECTION
6.10. Fiscal
Year; Accounting.
Permit
its fiscal year to end on any date other than (a) September 30 or December
30
during the 2007 fiscal year, or (b) the Saturday nearest the end of the calendar
year in respect of any other year, without prior notice to the Administrative
Agent given concurrently with any required notice to the SEC.
ARTICLE
VIA
Holdings
Covenants
Holdings
covenants and agrees with each Lender that, so long as this Agreement shall
remain in effect (other than in respect of contingent indemnification
obligations for which no claim has been made) and until the Commitments have
been terminated and the Obligations (including principal of and interest on
each
Loan, all Fees and all other expenses or amounts payable under any Loan
Document) have been paid in full and all Letters of Credit and Bankers’
Acceptances have been canceled or fully cash collateralized (in a manner
reasonably acceptable to the Administrative Agent and the Issuing Banks) or
have
expired and all amounts drawn or paid thereunder have been reimbursed in full,
unless the Required Lenders shall otherwise consent in writing, (a) Holdings
will not create, incur, assume or permit to exist any Lien (other
than Liens of a type described in Section 6.02(d), (e) or (k)) on
any of
the Equity Interests issued by the Company other than the Liens created under
the Loan Documents, (b) Holdings shall do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence; provided,
that so
long as no Default or Event of Default exists or would result therefrom,
Holdings may merge with any other person, and (c) Holdings shall at all times
own directly 100% of the Equity Interests of the Company and shall not sell,
transfer or otherwise dispose of the Equity Interests in the
Company.
Amended
and Restated Revolving Credit Agreement
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SECTION
7.01. Events
of Default.
In case
of the happening of any of the following events (each, an “Event of
Default”):
(a) any
representation or warranty made or deemed made by Holdings, any Borrower or
any
other Loan Party herein or in any other Loan Document or any certificate or
document delivered pursuant hereto or thereto shall prove to have been false
or
misleading in any material respect when so made or deemed made;
(b) default
shall be made in the payment of any principal of any Loan when and as the same
shall become due and payable, whether at the due date thereof or at a date
fixed
for prepayment thereof or by acceleration thereof or otherwise;
(c) default
shall be made in the payment of any interest on any Loan or the reimbursement
with respect to any L/C Disbursement or in the payment of any Fee or any other
amount (other than an amount referred to in (b) above) due under any Loan
Document, when and as the same shall become due and payable, and such default
shall continue unremedied for a period of five Business Days;
(d) default
shall be made in the due observance or performance by Holdings, any Borrower
or
any of the Subsidiaries of any covenant, condition or agreement contained in
Section 5.01(a), 5.05(a) or 5.08 or in Article VI or VIA;
(e) default
shall be made in the due observance or performance by Holdings, any Borrower
or
any of the Subsidiaries of any covenant, condition or agreement contained in
(i)
Section 5.07 or Sections 5.12 through 5.16 and such default shall continue
unremedied for a period of seven days after notice thereof from the
Administrative Agent to the Borrowers, or (ii) any Loan Document (other than
those specified in paragraphs (b), (c) and (d) above) and such default
shall continue unremedied for a period of 30 days (or 60 days if such default
results solely from a Foreign Subsidiary’s failure to duly observe or perform
any such covenant, condition or agreement) after notice thereof from the
Administrative Agent to the Company;
(f) (i)
any
event or condition occurs that (A) results in any Material Indebtedness becoming
due prior to its scheduled maturity or (B) enables or permits (with all
applicable grace periods having expired) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause any
Material Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity or (ii)
Holdings, any Borrower or any of the Subsidiaries shall fail to pay the
principal of any Material Indebtedness at the stated final maturity
thereof;
provided,
that
this clause (f) shall not apply to secured Indebtedness that becomes due as
a result of the voluntary sale or transfer of the property or assets securing
such Indebtedness if such sale or transfer is permitted hereunder and under
the
documents providing for such Indebtedness;
Amended
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(g) there
shall have occurred a Change in Control;
(h) an
involuntary proceeding shall be commenced or an involuntary petition shall
be
filed in a court of competent jurisdiction seeking (i) relief in respect of
Holdings, any Borrower or any of the Subsidiaries, or of a substantial part
of
the property or assets of Holdings, any Borrower or any Subsidiary, under Title
11 of the United States Code, as now constituted or hereafter amended, or any
other federal, state or foreign bankruptcy, insolvency, receivership or similar
law, (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings, any Borrower or any of the
Subsidiaries or for a substantial part of the property or assets of Holdings,
any Borrower or any of the Subsidiaries or (iii) the winding-up or liquidation
of Holdings, any Borrower or any Subsidiary (except, in the case of any
Subsidiary, in a transaction permitted by Section 6.05); and such
proceeding or petition shall continue undismissed for 60 days or an order or
decree approving or ordering any of the foregoing shall be entered;
(i) Holdings,
any Borrower or any Subsidiary shall (i) voluntarily commence any proceeding
or
file any petition seeking relief under Title 11 of the United States Code,
as
now constituted or hereafter amended, or any other federal, state or foreign
bankruptcy, insolvency, receivership or similar law, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or the filing of any petition described in paragraph (h) above,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Holdings, any Borrower or
any
of the Subsidiaries or for a substantial part of the property or assets of
Holdings, any Borrower or any Subsidiary, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding,
(v)
make a general assignment for the benefit of creditors or (vi) become unable
or
admit in writing its inability or fail generally to pay its debts as they become
due;
(j) the
failure by Holdings, any Borrower or any Subsidiary to pay one or more final
judgments aggregating in excess of $35 million (to the extent not covered by
insurance), which judgments are not discharged or effectively waived or stayed
for a period of 45 consecutive days;
(k) (i)
a
trustee shall be appointed by a United States district court to administer
any
Plan, (ii) an ERISA Event or ERISA Events shall have occurred with respect
to
any Plan or Multiemployer Plan, (iii) the PBGC shall institute proceedings
(including giving notice of intent thereof) to terminate any Plan or Plans,
(iv)
Holdings, any Borrower or any Subsidiary or any ERISA Affiliate shall have
been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan
is
in reorganization or is being terminated, within the meaning of Title IV of
ERISA, or (v) Holdings, any Borrower or any Subsidiary shall engage in any
“prohibited transaction” (as defined in Section 406 of ERISA or
Section 4975 of the Code) involving any Plan; and in each case in
clauses (i) through (v) above, such event or condition, together with all
other such events or conditions, if any, would reasonably be expected to have
a
Material Adverse Effect;
Amended
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(l) (i)
any
Loan Document shall for any reason be asserted in writing by Holdings, any
Borrower or any Subsidiary not to be a legal, valid and binding obligation
of
any party thereto, (ii) any security interest purported to be created by any
Security Document and to extend to assets that are not immaterial to Holdings,
the Borrowers and the Subsidiaries on a consolidated basis, shall cease to
be,
or shall be asserted in writing by any Borrower or any other Loan Party not
to
be, a valid and perfected security interest (perfected as or having the priority
required by this Agreement or the relevant Security Document and subject to
such
limitations and restrictions as are set forth herein and therein) in the
securities, assets or properties covered thereby, except to the extent that
any
such loss of perfection or priority results from the limitations of foreign
laws, rules and regulations as they apply to pledges of Equity Interests in
Foreign Subsidiaries or the application thereof, or from the failure of the
Administrative Agent to maintain possession of certificates actually delivered
to it representing securities pledged under the Collateral Agreement or to
file
Uniform Commercial Code continuation statements or take the actions described
on
Schedule 3.04
and
except to the extent that such loss is covered by a Lender’s title insurance
policy and the Administrative Agent shall be reasonably satisfied with the
credit of such insurer, or (iii) the Guarantees pursuant to the Security
Documents by Holdings, any Borrower or the Subsidiary Loan Parties of any of
the
Obligations shall cease to be in full force and effect (other than in accordance
with the terms thereof), or shall be asserted in writing by Holdings or any
Borrower or any Subsidiary Loan Party not to be in effect or not to be legal,
valid and binding obligations;
(m) (i)
the
Obligations shall fail to constitute “Senior Debt” (or the equivalent thereof)
and “Designated Senior Debt” (or the equivalent thereof) under the Senior
Subordinated Notes Indentures and under the documentation governing any
Indebtedness incurred pursuant to Section 6.01(r) constituting subordinated
Indebtedness or any Permitted Refinancing Indebtedness in respect of the Senior
Subordinated Notes or such Indebtedness incurred pursuant to Section 6.01(r)
constituting subordinated Indebtedness, or (ii) the subordination provisions
thereunder shall be invalidated or otherwise cease, or shall be asserted in
writing by Holdings, the Borrowers or any Subsidiary Loan Party to be invalid
or
to cease to be legal, valid and binding obligations of the parties thereto,
enforceable in accordance with their terms; or
(n) there
shall occur and be continuing an “Event of Default” under and as defined in the
Term Loan Credit Agreement.
then,
and
in every such event (other than an event with respect to any Borrower described
in paragraph (h) or (i) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the
Required Lenders, shall, by notice to the Company, take any or all of the
following actions, at the same or different times: (i) terminate forthwith
the
Commitments, (ii) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared
to
be due and payable, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of the Borrowers accrued hereunder and
under any other Loan Document, shall become forthwith due and payable, without
presentment, demand, protest or any other notice of any kind, all of which
are
hereby expressly waived by the Borrowers, anything contained herein or in any
other Loan Document to the contrary notwithstanding and (iii) if the Loans
have
been declared due and
Amended
and Restated Revolving Credit Agreement
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SECTION
7.02. Exclusion
of Immaterial Subsidiaries.
Solely
for the purposes of determining whether an Event of Default has occurred under
clause (h), (i) or (l) of Section 7.01, any reference in any such clause to
any
Subsidiary shall be deemed not to include any Immaterial Subsidiary affected
by
any event or circumstance referred to in any such clause.
SECTION
7.03. Holdings’
Right to Cure.
(2)
Notwithstanding anything to the contrary contained in Section 7.01, in the
event that the Borrowers fail to comply with the requirements of the ABL Fixed
Charge Coverage Ratio set forth in Section 6.11 hereof, until the expiration
of
the 10th day subsequent to the date that the certificate calculating such ABL
Fixed Charge Coverage Ratio is required to be delivered pursuant to
Section 5.04(c), Holdings shall have the right to issue Permitted Cure
Securities for cash or otherwise receive cash contributions to the capital
of
Holdings, and, in each case, to contribute any such cash to the capital of
the
Company (collectively, the “Cure
Right”),
and
upon the receipt by the Company of such cash (the “Cure
Amount”)
pursuant to the exercise by Holdings of such Cure Right, such ABL Fixed Charge
Coverage Ratio shall be recalculated giving effect to the following pro forma
adjustment:
(i) EBITDA
shall be increased with respect to such applicable quarter and any four-quarter
period that contains such quarter, solely for the purpose of measuring the
ABL
Fixed Charge Coverage Ratio and not for any other purpose under this Agreement,
by an amount equal to the Cure Amount; and
(ii) If,
after
giving effect to the foregoing pro forma adjustment, the Borrowers shall then
be
in compliance with the requirements of the ABL Fixed Charge Coverage Ratio
set
forth in Section 6.11 hereof, the Borrowers shall be deemed to have satisfied
the requirements of such Section 6.11 as of the relevant date of determination
with the same effect as though there had been no failure to comply therewith
at
such date, and the applicable breach or default of such Section 6.11 that had
occurred shall be deemed cured for this purposes of the Agreement.
(b) Notwithstanding
anything herein to the contrary, (i) in each four-fiscal-quarter period there
shall be at least one fiscal quarter in which the Cure Right is not exercised,
(ii) in each eight-fiscal-quarter period, there shall be a period of at least
four consecutive fiscal quarters during which the Cure Right is not exercised,
and (iii) for purposes of this Section 7.03, the Cure Amount shall be no
greater than the amount required for purposes of complying with Section
6.11.
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ARTICLE
VIII
The
Agents
SECTION
8.01. Appointment.
(b)
Each
Lender (in its capacities as a Lender and the Swingline Lender (if applicable)
and on behalf of itself and its Affiliates as potential counterparties to Swap
Agreements) and each Issuing Bank (in such capacities and on behalf of itself
and its Affiliates as potential counterparties to Swap Agreements) hereby
irrevocably designates and appoints (A) the Administrative Agent as the agent
of
such Lender under this Agreement and the other Loan Documents, including as
a
Collateral Agent for such Lender and the other Secured Parties (including the
Term Loan Secured Parties) under the Security Documents, and each such Lender
irrevocably authorizes the Administrative Agent, in such capacity, to take
such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and the
other Loan Documents, together with such other powers as are reasonably
incidental thereto and (B) the Term Facility Collateral Agent as collateral
agent for such lender for purposes of the Security Documents. In addition,
to
the extent required under the laws of any jurisdiction other than the United
States, each of the Lenders and the Issuing Banks hereby grants to the
Administrative Agent any required powers of attorney to execute any Security
Document governed by the laws of such jurisdiction on such Lender’s or Issuing
Bank’s behalf. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Except as expressly otherwise provided in this Agreement,
the Administrative Agent shall have and may use its sole discretion with respect
to exercising or refraining from exercising any discretionary rights or taking
or refraining from taking any actions which such Agent is expressly entitled
to
take or assert under this Agreement and the other Loan Documents, including
(a)
the determination of the applicability of ineligibility criteria and other
determinations with respect to the calculation of the Borrowing Base, (b) the
making of Agent Advances pursuant to Section 2.04(d), and (c) the exercise
of
remedies pursuant to Section 7.01, and any action so taken or not taken shall
be
deemed consented to by the Lenders.
(b) In
furtherance of the foregoing, each Lender (in its capacities as a Lender and
the
Swingline Lender (if applicable) and on behalf of itself and its Affiliates
as
potential counterparties to Swap Agreements) and each Issuing Bank (in such
capacities and on behalf of itself and its Affiliates as potential
counterparties to Swap Agreements) hereby appoints and authorizes the Collateral
Agent to act as the agent of such Lender for purposes of acquiring, holding
and
enforcing any and all Liens on Collateral granted by any of the Loan Parties
to
secure any of the Obligations, together with such powers and discretion as
are
reasonably incidental thereto and to enter into and take such action on its
behalf under the provisions of the Intercreditor Agreement and the Senior Lender
Intercreditor Agreement and to exercise such powers and perform such duties
as
are expressly delegated to the Collateral Agent by the terms of the
Intercreditor Agreement and the Senior Lender Intercreditor Agreement, together
with such other powers as are reasonably incidental thereto. In this connection,
the Collateral Agent (and any Subagents appointed by the Collateral Agent
pursuant to Section 8.02 for purposes of
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holding
or enforcing any Lien on the Collateral (or any portion thereof) granted under
the Security Documents, or for exercising any rights or remedies thereunder
at
the direction of the Collateral Agent) shall be entitled to the benefits of
this
Article VIII (including, without limitation, Section 8.07) as though the
Collateral Agent (and any such Subagents) were an “Agent” under the Loan
Documents, as if set forth in full herein with respect thereto.
(c) Each
Lender (in its capacities as a Lender and the Swingline Lender (if applicable)
and on behalf of itself and its Affiliates as potential counterparties to Swap
Agreements) and each Issuing Bank (in such capacities and on behalf of itself
and its Affiliates as potential counterparties to Swap Agreements) irrevocably
authorizes each of the Administrative Agent and the Collateral Agent, at its
option and in its discretion, (i) to release any Lien on any property granted
to
or held by the Collateral Agent under any Loan Document (A) upon termination
of
the Commitments and payment in full of all Obligations (other than contingent
indemnification obligations) and the expiration, termination or cash
collateralization of all Letters of Credit and Bankers’ Acceptances, (B) that is
sold or to be sold as part of or in connection with any sale permitted hereunder
or under any other Loan Document, or (C) if approved, authorized or ratified
in
writing in accordance with Section 9.08 hereof, (ii) to release any Guarantor
from its obligations under the Loan Documents if such person ceases to be a
Subsidiary as a result of a transaction permitted hereunder; and (iii) to
subordinate any Lien on any property granted to or held by the Collateral Agent
under any Loan Document to the holder of any Lien on such property that is
permitted by Section 6.02(i) and (j). Upon request by the Collateral Agent
at
any time, the Required Lenders will confirm in writing the Collateral Agent’s
authority to release its interest in particular types or items of property,
or
to release any Guarantor from its obligations under the Loan
Documents.
(d) In
case
of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, (i) the Administrative Agent
(irrespective of whether the principal of any Obligation shall then be due
and
payable as herein expressed or by declaration or otherwise and irrespective
of
whether the Administrative Agent shall have made any demand on the Company)
shall be entitled and empowered, by intervention in such proceeding or otherwise
(A) to file and prove a claim for the whole amount of the principal and interest
owing and unpaid in respect of any or all of the Obligations that are owing
and
unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders, the Issuing Banks and the
Administrative Agent and any Subagents allowed in such judicial proceeding,
and
(B) to collect and receive any monies or other property payable or deliverable
on any such claims and to distribute the same, and (ii) any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Lender and Issuing Bank
to
make such payments to the Administrative Agent and, if the Administrative Agent
shall consent to the making of such payments directly to the Lenders and the
Issuing Banks, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due
the
Administrative Agent under the Loan Documents. Nothing contained herein shall
be
deemed to authorize the Administrative Agent to authorize or consent to or
accept or adopt on behalf of any Lender or Issuing Bank any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of
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any
Lender or Issuing Bank or to authorize the Administrative Agent to vote in
respect of the claim of any Lender or Issuing Bank in any such proceeding.
SECTION
8.02. Delegation
of Duties.
The
Administrative Agent may execute any of its duties under this Agreement and
the
other Loan Documents (including for purposes of holding or enforcing any Lien
on
the Collateral (or any portion thereof) by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent may also from time to time, when the Administrative Agent
deems it to be necessary or desirable, appoint one or more trustees,
co-trustees, collateral co-agents, collateral subagents or attorneys-in-fact
(each, a “Subagent”) with respect to all or any part of the
Collateral;
provided,
that no
such Subagent shall be authorized to take any action with respect to any
Collateral unless and except to the extent expressly authorized in writing
by
the Administrative Agent. Should any instrument in writing from the Borrowers
or
any other Loan Party be required by any Subagent so appointed by the
Administrative Agent to more fully or certainly vest in and confirm to such
Subagent such rights, powers, privileges and duties, the Borrowers shall, or
shall cause such Loan Party to, execute, acknowledge and deliver any and all
such instruments promptly upon request by the Administrative Agent. If any
Subagent, or successor thereto, shall die, become incapable of acting, resign
or
be removed, all rights, powers, privileges and duties of such Subagent, to
the
extent permitted by law, shall automatically vest in and be exercised by the
Administrative Agent until the appointment of a new Subagent. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agent,
attorney-in-fact or Subagent that it selects in accordance with the foregoing
provisions of this Section 8.02 in the absence of the Administrative Agent’s
gross negligence or willful misconduct.
SECTION
8.03. Exculpatory
Provisions.
Neither
any Agent or its Affiliates nor any of their respective officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (a) liable for
any
action lawfully taken or omitted to be taken by it or such person under or
in
connection with this Agreement or any other Loan Document (except to the extent
that any of the foregoing are found by a final and nonappealable decision of
a
court of competent jurisdiction to have resulted from its or such person’s own
gross negligence or willful misconduct) or (b) responsible in any manner to
any
of the Lenders for any recitals, statements, representations or warranties
made
by any Loan Party or any officer thereof contained in this Agreement or any
other Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agents under or in connection
with, this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement
or
any other Loan Document or for any failure of any Loan Party a party thereto
to
perform its obligations hereunder or thereunder. The Agents shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance
or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Loan Party. The Administrative Agent shall not have any duties
or
obligations except those expressly set forth herein and in the other Loan
Documents. Without limiting the generality of the foregoing, (x) the
Administrative Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default or Event of Default has occurred and
is
continuing, and (y) the Administrative Agent
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SECTION
8.04. Reliance
by Administrative Agent.
The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) or
conversation believed by it to be genuine and to have been signed, sent or
otherwise authenticated by the proper person. The Administrative Agent also
may
rely upon any statement made to it orally or by telephone and believed by it
to
have been made by the proper person, and shall not incur any liability for
relying thereon. In determining compliance with any condition hereunder to
any
Credit Event, that by its terms must be fulfilled to the satisfaction of a
Lender or any Issuing Bank, the Administrative Agent may presume that such
condition is satisfactory to such Lender or Issuing Bank unless the
Administrative Agent shall have received notice to the contrary from such Lender
or the Issuing Bank prior to such Credit Event. The Administrative Agent may
consult with legal counsel (including counsel to Holdings or the Borrowers),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice
of
any such counsel, accountants or experts. The Administrative Agent may deem
and
treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or
any
other Loan Document unless it shall first receive such advice or concurrence
of
the Required Lenders (or, if so specified by this Agreement, all or other
Lenders) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense that
may
be incurred by it by reason of taking or continuing to take any such action.
The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Required Lenders (or, if so specified by this
Agreement, all or other Lenders), and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.
SECTION
8.05. Notice
of Default.
The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default unless the Administrative Agent
has received written notice from a Lender, Holdings or the Borrowers referring
to this Agreement, describing such Default or Event of Default and stating
that
such notice is a “notice of default.” In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed
by
the Required Lenders (or, if so specified by this Agreement, all or other
Lenders);
provided,
that
unless and until the Administrative Agent shall have received such directions,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the
Lenders.
SECTION
8.06. Non-Reliance
on Agents and Other Lenders.
Each
Lender expressly acknowledges that neither the Agents nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates have made any representations or warranties to it and that no act
by
any Agent hereafter taken, including any review of the affairs of a Loan Party
or any affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by any Agent to any Lender. Each Lender represents
to
the Agents that it has, independently and without reliance upon any Agent or
any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of
the
Loan Parties and their affiliates and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon any Agent or any other Lender,
and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigation as it deems necessary to inform itself as to
the
business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates. Except for notices,
reports and other documents expressly required to be furnished to the Lenders
by
the Administrative Agent hereunder, the Administrative Agent shall not have
any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of any Loan Party or any affiliate
of a Loan Party that may come into the possession of the Administrative Agent
or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
SECTION
8.07. Indemnification.
The
Lenders agree to indemnify each Agent and each Issuing Bank in its capacity
as
such (to the extent not reimbursed by Holdings or the Borrowers and without
limiting the obligation of Holdings or the Borrowers to do so), in the amount
of
its pro
rata
share
(based on its aggregate Revolving Facility Credit Exposure and unused
Commitments hereunder;
provided,
that
the aggregate principal amount of Swingline Loans owing to the Swingline Lender
and of L/C - BA Disbursements owing to any Issuing Bank shall be considered
to
be owed to the Revolving Lenders ratably in accordance with their respective
Revolving Facility Credit Exposure), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever that may at any time (whether
before or after the payment
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of
the
Loans) be imposed on, incurred by or asserted against such Agent or such Issuing
Bank in any way relating to or arising out of the Commitments, this Agreement,
any of the other Loan Documents (including, without limitation, the
Intercreditor Agreement and the Senior Lender Intercreditor Agreement) or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
or
such Issuing Bank under or in connection with any of the foregoing;
provided,
that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from such Agent’s or such
Issuing Bank’s gross negligence or willful misconduct. The failure of any Lender
to reimburse any Agent or any Issuing Bank, as the case may be, promptly upon
demand for its ratable share of any amount required to be paid by the Lenders
to
such Agent or such Issuing Bank, as the case may be, as provided herein shall
not relieve any other Lender of its obligation hereunder to reimburse such
Agent
or such Issuing Bank, as the case may be, for its ratable share of such amount,
but no Lender shall be responsible for the failure of any other Lender to
reimburse such Agent or such Issuing Bank, as the case may be, for such other
Lender’s ratable share of such amount. The agreements in this Section shall
survive the payment of the Loans and all other amounts payable
hereunder.
SECTION
8.09. Successor
Administrative Agent.
The
Administrative Agent may resign as Administrative Agent upon 10 days’ notice to
the Lenders and the Borrowers. If the Administrative Agent shall resign as
Administrative Agent under this Agreement and the other Loan Documents, then
the
Required Lenders shall appoint from among the Lenders a successor agent for
the
Lenders, which successor agent shall (unless an Event of Default under Section
7.01(b), (c), (h) or (i) shall have occurred and be continuing) be subject
to
approval by the Company (which approval shall not be unreasonably withheld
or
delayed), whereupon such successor agent shall succeed to the rights, powers
and
duties of the Administrative Agent, and the term “Administrative Agent” shall
mean such successor agent effective upon such appointment and approval, and
the
former Administrative Agent’s rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or
any
holders of the Loans. If no successor agent has accepted appointment as
Administrative Agent by the date that is 10 days following a retiring
Administrative Agent’s notice of resignation, the retiring Administrative
Agent’s resignation shall nevertheless thereupon become effective, and the
retiring Administrative Agent shall, on behalf of the Lenders, appoint a
successor agent which shall (unless an Event of Default under Section 7.01(b),
(c), (h) or (i) shall have occurred and be continuing) be subject to approval
by
the Company (which approval shall not be unreasonably withheld or delayed).
After any retiring Administrative Agent’s resignation as Administrative Agent,
the provisions of this Section 8.09 shall inure to its benefit as to any actions
taken or
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SECTION
8.10. Agents
and Arrangers.
Neither
the Syndication Agent, the Documentation Agents nor any of the Joint Lead
Arrangers shall have any duties or responsibilities hereunder in its capacity
as
such.
SECTION
8.11. [Reserved]
SECTION
8.12. Field
Audit and Examination Reports; Disclaimer by Lenders.
By
signing this Agreement, each Lender:
(a) is
deemed
to have requested that the Collateral Agent furnish such Lender, promptly after
it becomes available, a copy of each field audit or examination report (each
a
“Report”
and
collectively, “Reports”)
prepared by or on behalf of the Collateral Agent;
(b) expressly
agrees and acknowledges that neither the Banks nor the Agents (i) make any
representation or warranty as to the accuracy of any Report, or (ii) shall
be
liable for any information contained in any Report;
(c) expressly
agrees and acknowledges that the Reports are not comprehensive audits or
examinations, that the Collateral Agent, a Bank, or other party performing
any
audit or examination will inspect only specific information regarding the
Borrowers and will rely significantly upon the Borrowers’ books and records, as
well as on representations of the Borrowers’ personnel;
(d) agrees
to
keep all Reports confidential and strictly for its internal use, and not to
distribute except to its participants, or use any Report in any other manner;
and
(e) without
limiting the generality of any other indemnification provision contained in
this
Agreement, agrees: (i) to hold the Agents and any other Lender preparing a
Report harmless from any action the indemnifying Lender may take or conclusion
the indemnifying Lender may reach or draw from any Report in connection with
any
loans or other credit accommodations that the indemnifying Lender has made
or
may make to the Borrowers, or the indemnifying Lender’s participation in, or the
indemnifying Lender’s purchase of, a loan or loans of the Borrowers; and (ii) to
pay and protect, and indemnify, defend, and hold the Agents and any such other
Lender preparing a Report harmless from and against, the claims, actions,
proceedings, damages, costs, expenses, and other amounts (including Attorney
Costs) incurred by the Agents and any such other Lender preparing a Report
as
the direct or indirect result of any third parties who might obtain all or
part
of any Report through the indemnifying Lender.
ARTICLE
IX
Miscellaneous
SECTION
9.01. Notices;
Communications.
i)
Except
in the case of notices and other communications expressly permitted to be given
by telephone (and except as provided in Section 9.01(b) below), all notices
and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier as follows, and all notices and other
communications expressly permitted hereunder to be given by telephone shall
be
made to the applicable telephone number, as follows:
(i) if
to any
Loan Party, the Administrative Agent, the Issuing Bank or the Swingline Lender,
to the address, telecopier number, electronic mail address or telephone number
specified for such person on Schedule
9.01;
and
(ii) if
to any
other Lender, to the address, telecopier number, electronic mail address or
telephone number specified in its Administrative Questionnaire.
(b) Notices
and other communications to the Lenders and the Issuing Bank hereunder may
be
delivered or furnished by electronic communication (including e-mail and
Internet or intranet websites) pursuant to procedures approved by the
Administrative Agent;
provided
that the
foregoing shall not apply to notices to any Lender or the Issuing Bank pursuant
to Article II if such Lender or the Issuing Bank, as applicable, has notified
the Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrowers
may, in its discretion, agree to accept notices and other communications to
it
hereunder by electronic communications pursuant to procedures approved by it,
provided
that
approval of such procedures may be limited to particular notices or
communications.
(c) Notices
sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received. Notices sent by
telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in Section 9.01(b) above shall be effective as provided in such Section
9.01(b).
(d) Any
party
hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto.
(e) Documents
required to be delivered pursuant to Section 5.04 (to the extent any such
documents are included in materials otherwise filed with the SEC) may be
delivered electronically (including as set forth in Section 9.17) and if so
delivered, shall be deemed to have been delivered on the date (i) on which
the
Company posts such documents, or provides a link thereto on the Company’s
website on the Internet at the website address listed on Schedule
9.01,
or (ii)
on which such documents are posted on
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the
Company’s behalf on an Internet or intranet website, if any, to which each
Lender and the Administrative Agent have access (whether a commercial,
third-party website or whether sponsored by the Administrative
Agent);
provided,
that
(A) the Company shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Borrowers to deliver such
paper copies until a written request to cease delivering paper copies is given
by the Administrative Agent or such Lender, and (B) the Borrowers shall notify
the Administrative Agent and each Lender (by telecopier or electronic mail)
of
the posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (i.e.,
soft
copies) of such documents. Notwithstanding anything contained herein, in every
instance the Borrowers shall be required to provide paper copies of the
certificates required by Section 5.04(c) to the Administrative Agent. Except
for
such certificates required by Section 5.04(c), the Administrative Agent shall
have no obligation to request the delivery or to maintain copies of the
documents referred to above, and in any event shall have no responsibility
to
monitor compliance by the Borrowers with any such request for delivery, and
each
Lender shall be solely responsible for requesting delivery to it or maintaining
its copies of such documents.
SECTION
9.02. Survival
of Agreement.
All
covenants, agreements, representations and warranties made by the Loan Parties
herein, in the other Loan Documents and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this Agreement or any
other Loan Document shall be considered to have been relied upon by the Lenders
and each Issuing Bank and shall survive the making by the Lenders of the Loans,
the execution and delivery of the Loan Documents and the issuance of the Letters
of Credit, regardless of any investigation made by such persons or on their
behalf, and shall continue in full force and effect as long as the principal
of
or any accrued interest on any Loan or L/C - BA Disbursement or any Fee or
any
other amount payable under this Agreement or any other Loan Document is
outstanding and unpaid or any Letter of Credit is outstanding and so long as
the
Commitments have not been terminated. Without prejudice to the survival of
any
other agreements contained herein, indemnification and reimbursement obligations
contained herein (including pursuant to Sections 2.15, 2.17 and 9.05) shall
survive the payment in full of the principal and interest hereunder, the
expiration of the Letters of Credit and the termination of the Commitments
or
this Agreement.
SECTION
9.03. Binding
Effect.
This
Agreement shall become effective when it shall have been executed by Holdings,
the Borrowers and the Administrative Agent and when the Administrative Agent
shall have been notified by each Lender (or otherwise received evidence
satisfactory to the Administrative Agent) that such Lender has executed it,
and
thereafter shall be binding upon and inure to the benefit of Holdings, the
Borrowers, each Issuing Bank, the Administrative Agent and each Lender and
their
respective permitted successors and assigns.
SECTION
9.04. Successors
and Assigns.
ii) The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns permitted hereby
(including any affiliate of the Issuing Bank that issues any Letter of Credit
or
Bankers’ Acceptance), except that (i) the Borrowers may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each
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Lender
(and any attempted assignment or transfer by the Borrowers without such consent
shall be null and void) and (ii) no Lender may assign or otherwise transfer
its
rights or obligations hereunder except in accordance with this
Section 9.04. Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any person (other than the parties hereto, their
respective successors and assigns permitted hereby (including any Affiliate
of
the Issuing Bank that issues any Letter of Credit), Participants (to the extent
provided in paragraph (c) of this Section 9.04), and, to the extent
expressly contemplated hereby, the Related Parties of each of the Agents, the
Issuing Bank and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement or the other Loan Documents.
(b) (a) Subject
to the conditions set forth in paragraph (b)(ii) below, any Lender may
assign to one or more assignees (each, an “Assignee”)
all or
a portion of its rights and obligations under this Agreement (including all
or a
portion of its Commitments and the Loans at the time owing to it) with the
prior
written consent (such consent not to be unreasonably withheld) of:
(A) the
Company;
provided,
that no
consent of the Company shall be required for an assignment to a Lender, an
affiliate of a Lender, an Approved Fund (as defined below) or, if an Event
of
Default under Sections 7.01(b), (c), (h) or (i) has occurred and is continuing,
any other person;
(B) the
Administrative Agent; and
(C) the
Issuing Bank and the Swingline Lender; provided,
that no
consent of the Issuing Bank and the Swingline Lender shall be required for
an
assignment of all or any portion of a Revolving Loan.
(ii) Assignments
shall be subject to the following additional conditions:
(A) except
in
the case of an assignment to a Lender, an affiliate of a Lender or an Approved
Fund or an assignment of the entire remaining amount of the assigning Lender’s
Commitments or Loans, the amount of the Commitments or Loans of the assigning
Lender subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5 million, unless each of the
Company and the Administrative Agent otherwise consent;
provided,
that
(1) no such consent of the Company shall be required if an Event of Default
under Sections 7.01(b), (c), (h) or (i) has occurred and is continuing and
(2)
such amounts shall be aggregated in respect of each Lender and its Affiliates
or
Approved Funds (with simultaneous assignments to or by two or more Related
Funds
shall be treated as one assignment), if any;
(B) the
parties to each assignment shall execute and deliver to the Administrative
Agent
an Assignment and Acceptance via an electronic settlement system acceptable
to
the Administrative Agent (or, if previously agreed with the Administrative
Agent, manually), and shall pay to the Administrative Agent a processing and
recordation fee of
$3,500
(which fee may be waived or reduced in the sole discretion of the Administrative
Agent);
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(C) the
Assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent
an Administrative Questionnaire and all applicable tax forms; and
(D) the
Assignee shall not be a Borrower or any of the Borrowers’ Affiliates or
Subsidiaries.
For
the
purposes of this Section 9.04, “Approved
Fund”
means
any person (other than a natural person) that is engaged in making, purchasing,
holding or investing in bank loans and similar extensions of credit in the
ordinary course and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender. Notwithstanding the foregoing, no Lender shall
be permitted to assign or transfer any portion of its rights and obligations
under this Agreement to an Ineligible Institution.
(b) Subject
to acceptance and recording thereof pursuant to paragraph (b)(v) below,
from and after the effective date specified in each Assignment and Acceptance
the Assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment
and
Acceptance, be released from its obligations under this Agreement (and, in
the
case of an Assignment and Acceptance covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be
a
party hereto but shall continue to be entitled to the benefits of Sections
2.15,
2.16, 2.17 and 9.05). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this
Section 9.04 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance
with
paragraph (c) of this Section 9.04.
(c) The
Administrative Agent, acting for this purpose as an agent of the Borrowers,
shall maintain at one of its offices a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses
of
the Lenders, and the Commitments of, and principal amount of the Loans and
Revolving L/C - BA Exposure owing to, each Lender pursuant to the terms hereof
from time to time (the “Register”).
The
entries in the Register shall be conclusive, and the Borrowers, the
Administrative Agent, the Issuing Bank and the Lenders may treat each person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrowers,
the
Issuing Bank and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon
its
receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an Assignee, the Assignee’s completed Administrative Questionnaire
(unless the Assignee shall already be a Lender hereunder), all applicable tax
forms, the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall promptly
accept such Assignment and Acceptance and record the information contained
therein in the Register. No assignment, whether or not evidenced by a promissory
note, shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph (b)(v).
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(c) (e) Any
Lender may, without the consent of the Company or the Administrative Agent,
sell
participations to one or more banks or other entities (a “Participant”)
in all
or a portion of such Lender’s rights and obligations under this Agreement
(including all or a portion of its Commitments and the Loans owing to
it);
provided,
that
(A) such Lender’s obligations under this Agreement shall remain unchanged, (B)
such Lender shall remain solely responsible to the other parties hereto for
the
performance of such obligations and (C) the Borrowers, the Administrative Agent,
the Issuing Bank and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement pursuant to which a Lender
sells
such a participation shall provide that such Lender shall retain the sole right
to enforce this Agreement and the other Loan Documents and to approve any
amendment, modification or waiver of any provision of this Agreement and the
other Loan Documents;
provided,
that
(x) such agreement may provide that such Lender will not, without the consent
of
the Participant, agree to any amendment, modification or waiver that (1)
requires the consent of each Lender directly affected thereby pursuant to
Section 9.04(a)(i) or clauses (i), (ii), (iii), (iv), (v) or (vi) of
the first proviso to Section 9.08(b) and (2) directly affects such
Participant and (y) no other agreement with respect to amendment, modification
or waiver may exist between such Lender and such Participant. Subject to
paragraph (c)(ii) of this Section 9.04, the Borrowers agree that each
Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17
to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section 9.04. To the
extent permitted by law, each Participant also shall be entitled to the benefits
of Section 9.06 as though it were a Lender, provided
such
Participant shall be subject to Section 2.18(c) as though it were a
Lender.
(f) A
Participant shall not be entitled to receive any greater payment under
Section 2.15, 2.16 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Company’s prior written consent. A Participant shall not be entitled to the
benefits of Section 2.17 to the extent such Participant fails to comply
with Section 2.17(e) and (f) as though it were a Lender.
(d) Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank, and this Section 9.04 shall not apply to any such pledge or
assignment of a security interest;
provided,
that no
such pledge or assignment of a security interest shall release a Lender from
any
of its obligations hereunder or substitute any such pledgee or Assignee for
such
Lender as a party hereto.
(e) The
Borrowers, upon receipt of written notice from the relevant Lender, agree to
issue Notes to any Lender requiring Notes to facilitate transactions of the
type
described in paragraph (d) above.
(f) Notwithstanding
the foregoing, any Conduit Lender may assign any or all of the Loans it may
have
funded hereunder to its designating Lender without the consent of the Company
or
the Administrative Agent. Each of Holdings, the Borrowers, 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,
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arrangement,
insolvency or liquidation proceeding under any state bankruptcy or similar
law,
for one year and one day after the payment in full of the latest maturing
commercial paper note issued by such Conduit Lender;
provided,
however,
that
each Lender designating any Conduit Lender hereby agrees to indemnify, save
and
hold harmless each other party hereto and each Loan Party for any loss, cost,
damage or expense arising out of its inability to institute such a proceeding
against such Conduit Lender during such period of forbearance.
(g) If
the
Borrower wishes to replace the Loans or Commitments under the Revolving Facility
with ones having different terms, it shall have the option, with the consent
of
the Administrative Agent and subject to at least three Business Days’ advance
notice to the Lenders under such Facility, instead of prepaying the Loans or
reducing or terminating the Commitments to be replaced, to (i) require the
Lenders under such Facility to assign such Loans or Commitments to the
Administrative Agent or its designees and (ii) amend the terms thereof in
accordance with Section 9.08 (with such replacement, if applicable, being
deemed to have been made pursuant to Section 9.08(d)). Pursuant to any such
assignment, all Loans and Commitments to be replaced shall be purchased at
par
(allocated among the Lenders under such Facility in the same manner as would
be
required if such Loans were being optionally prepaid or such Commitments were
being optionally reduced or terminated by the Borrowers), accompanied by payment
of any accrued interest and fees thereon and any other amounts owing pursuant
to
Section 9.05(b). By receiving such purchase price, the Lenders under such
Facility shall automatically be deemed to have assigned the Loans or Commitments
under such Facility pursuant to the terms of the form of Assignment and
Acceptance attached hereto as Exhibit A,
and
accordingly no other action by such Lenders shall be required in connection
therewith. The provisions of this paragraph (g) are intended to facilitate
the maintenance of the perfection and priority of existing security interests
in
the Collateral during any such replacement.
SECTION
9.05. Expenses;
Indemnity.
iii) The
Borrowers agree to pay (i) all reasonable out-of-pocket expenses (including
Other Taxes) incurred by the Administrative Agent in connection with the
preparation of this Agreement and the other Loan Documents, or by the
Administrative Agent in connection with the syndication of the Commitments
or
the administration of this Agreement (including expenses incurred in connection
with due diligence to the extent incurred with the reasonable prior approval
of
the Company and the reasonable fees, disbursements and charges for no more
than
one counsel in each jurisdiction where Collateral is located) or in connection
with the administration of this Agreement and any amendments, modifications
or
waivers of the provisions hereof or thereof (whether or not the Transactions
hereby contemplated shall be consummated), including the reasonable fees,
charges and disbursements of Shearman & Sterling LLP, counsel to the
Administrative Agent, the Collateral Agent and the Joint Lead Arrangers, and,
if
necessary, the reasonable fees, charges and disbursements of one local counsel
per jurisdiction; (ii) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, the Collateral Agent or the Joint Lead Arrangers for
(A)
the costs of appraisals, inspections and verifications of the Collateral,
including travel, lodging, and meals for inspections of the Collateral and
the
Loan Parties’ operations by the Administrative Agent or the Collateral Agent,
plus the Administrative Agent’s then customary charge for field examinations and
audits and the preparation of reports thereof (such charge is
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currently
$850 per day (or portion thereof) for each agent or employee of the
Administrative Agent with respect to each field examination or audit), (B)
the
costs and expenses of forwarding loan proceeds, collecting checks, and other
items of payment, and establishing and maintaining Payment Accounts and lock
boxes, and (C) the costs and expenses of lien searches, taxes, fees and other
charges for filing financing statements, and other actions to maintain, preserve
and protect the Collateral and the Collateral Agent’s Lien thereon; provided,
that so
long as no Default or Event of Default shall have occurred and be continuing,
such costs, expenses and charges described in clauses (A)-(C) shall not exceed
(x) $100,000 per year in any year that the Collateral Agent conducts no more
than one Collateral Audit and one appraisal of the Collateral and (y) $150,000
per year in any year that the Collateral Agent conducts more than one Collateral
Audit and appraisal of the Collateral; (iii) sums paid or incurred to pay any
amount or take any action required of any Borrower or other Loan Party under
the
Loan Documents that such Borrower or Loan Party fails to take; and (iv) all
out-of-pocket expenses (including Other Taxes) incurred by the Administrative
Agent or any Lender in connection with the enforcement or protection of their
rights in connection with this Agreement and the other Loan Documents, in
connection with the Loans made or the Letters of Credit issued hereunder,
including the fees, charges and disbursements of counsel for the Administrative
Agent (including any special and local counsel).
(b) The
Borrowers agree to indemnify the Administrative Agent, the Collateral Agent,
the
Joint Lead Arrangers, each Issuing Bank, each Lender, each of their respective
Affiliates and each of their respective directors, trustees, officers,
employees, agents, trustees and advisors (each such person being called an
“Indemnitee”)
against, and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees,
charges and disbursements (except the allocated costs of in-house counsel),
incurred by or asserted against any Indemnitee arising out of, in any way
connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document (including, without limitation, the
Intercreditor Agreement and the Senior Lender Intercreditor Agreement) or any
agreement or instrument contemplated hereby or thereby, the performance by
the
parties hereto and thereto of their respective obligations thereunder or the
consummation of the Transactions and the other transactions contemplated hereby,
(ii) the use of the proceeds of the Loans or the use of any Letter of Credit
or
Bankers’ Acceptance or (iii) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether or not any Indemnitee is a party
thereto and regardless of whether such matter is initiated by a third party
or
by Holdings, the Borrowers or any of their subsidiaries or
Affiliates;
provided,
that
such indemnity shall not, as to any Indemnitee, be available to the extent
that
such losses, claims, damages, liabilities or related expenses are determined
by
a final, non-appealable judgment of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Indemnitee
(for
purposes of this proviso only, each of the Administrative Agent, the Joint
Lead
Arrangers, any Issuing Bank or any Lender shall be treated as several and
separate Indemnitees, but each of them together with its respective Related
Parties, shall be treated as a single Indemnitee). Subject to and without
limiting the generality of the foregoing sentence, the Borrowers agree to
indemnify each Indemnitee against, and hold each Indemnitee harmless from,
any
and all losses, claims, damages, liabilities and related expenses, including
reasonable counsel or consultant fees, charges and disbursements (limited to
not
more than one counsel, plus, if necessary, one local counsel per jurisdiction)
(except the allocated costs of in-house counsel), incurred by or asserted
against any Indemnitee arising out
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of,
in
any way connected with, or as a result of (A) any claim related in any way
to
Environmental Laws and Holdings, any Borrower or any of their Subsidiaries,
or
(B) any actual or alleged presence, Release or threatened Release of Hazardous
Materials at, under, on or from any Property;
provided,
that
such indemnity shall not, as to any Indemnitee, be available to the extent
that
such losses, claims, damages, liabilities or related expenses are determined
by
a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee
or
any of its Related Parties. None of the Indemnitees (or any of their respective
affiliates) shall be responsible or liable to the Fund, Holdings, the Borrowers
or any of their respective subsidiaries, Affiliates or stockholders or any
other
person or entity for any special, indirect, consequential or punitive damages,
which may be alleged as a result of the Facility or the Transactions. The
provisions of this Section 9.05 shall remain operative and in full force
and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any
of
the Obligations, the invalidity or unenforceability of any term or provision
of
this Agreement or any other Loan Document, or any investigation made by or
on
behalf of the Administrative Agent, any Issuing Bank or any Lender. All amounts
due under this Section 9.05 shall be payable on written demand therefor
accompanied by reasonable documentation with respect to any reimbursement,
indemnification or other amount requested.
(c) Except
as
expressly provided in Section 9.05(a) with respect to Other Taxes, which
shall not be duplicative with any amounts paid pursuant to Section 2.17,
this Section 9.05 shall not apply to Taxes.
(d) To
the
fullest extent permitted by applicable law, Holdings and the Borrowers shall
not
assert, and hereby waive, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any Loan
or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall
be
liable for any damages arising from the use by unintended recipients of any
information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby
or
thereby.
SECTION
9.06. Right
of Set-off.
If an
Event of Default shall have occurred and be continuing, each Lender and each
Issuing Bank is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held
and
other indebtedness at any time owing by such Lender or such Issuing Bank to
or
for the credit or the account of Holdings, the Borrowers or any Subsidiary
against any of and all the obligations of Holdings or the Borrowers now or
hereafter existing under this Agreement or any other Loan Document held by
such
Lender or such Issuing Bank, irrespective of whether or not such Lender or
such
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SECTION
9.07. Applicable
Law.
THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS
EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION
9.08. Waivers;
Amendment.
iv) No
failure or delay of the Administrative Agent, any Issuing Bank or any Lender
in
exercising any right or power hereunder or under any Loan Document shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right
or power, or any abandonment or discontinuance of steps to enforce such a right
or power, preclude any other or further exercise thereof or the exercise of
any
other right or power. The rights and remedies of the Administrative Agent,
each
Issuing Bank and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or any other Loan
Document or consent to any departure by Holdings, any Borrower or any other
Loan
Party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
No
notice or demand on Holdings, any Borrower or any other Loan Party in any case
shall entitle such person to any other or further notice or demand in similar
or
other circumstances.
(b) Neither
this Agreement nor any other Loan Document nor any provision hereof or thereof
may be waived, amended or modified except (x) as provided in Section 2.21,
(y)
in the case of this Agreement, pursuant to an agreement or agreements in writing
entered into by Holdings, the Borrowers and the Required Lenders, and (z) in
the
case of any other Loan Document, pursuant to an agreement or agreements in
writing entered into by each party thereto and the Administrative Agent (or,
in
the case of any Security Documents, the Collateral Agent if so provided therein)
and consented to by the Required Lenders; provided,
however,
that no
such agreement shall
(i) decrease
or forgive the principal amount of, or extend the final maturity of, or decrease
the rate of interest on, any Loan or any L/C - BA Disbursement, or extend the
stated expiration of any Letter of Credit or Bankers’ Acceptance beyond the
Revolving Facility Maturity Date, without the prior written consent of each
Lender directly affected thereby, except as provided in Section
2.05(c),
(ii) increase
or extend the Commitment of any Lender or decrease the Commitment Fees or L/C-BA
Participation Fees or other fees of any Lender without the prior written consent
of such Lender (it being understood that waivers or modifications of conditions
precedent, covenants, Defaults or Events of Default or of a mandatory reduction
in the aggregate Commitments shall not constitute an increase of the Commitments
of any Lender),
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(iii) extend
any date on which payment of interest on any Loan or any L/C - BA Disbursement
or any Fees is due, without the prior written consent of each Lender adversely
affected thereby,
(iv) amend
the
provisions of Section 5.02 of the Collateral Agreement in a manner that would
by
its terms alter the pro
rata
sharing
of payments required thereby, without the prior written consent of each Lender
adversely affected thereby,
(v) amend
or
modify the provisions of this Section 9.08 or the definition of the term
“Required Lenders” or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder
or
make any determination or grant any consent hereunder, without the prior written
consent of each Lender adversely affected thereby (it being understood that,
with the consent of the Required Lenders, additional extensions of credit
pursuant to this Agreement may be included in the determination of the Required
Lenders on substantially the same basis as the Loans and Commitments are
included on the Closing Date),
(vi) release
all or substantially all the Collateral or release any of Holdings, the Company
or all or substantially all of the Subsidiary Loan Parties from their respective
Guarantees under the Collateral Agreement, unless, in the case of a Subsidiary
Loan Party, all or substantially all the Equity Interests of such Subsidiary
Loan Party is sold or otherwise disposed of in a transaction permitted by this
Agreement, without the prior written consent of each Lender,
(vii) increase
any of the percentages set forth in the definition of the Borrowing Base without
the consent of all of the Lenders; or
(viii)
increase
the Incremental Revolving Facility Commitment above $150 million or add any
other Indebtedness under the Facility without the prior written consent of
each
Lender;
provided,
further,
that no
such agreement shall amend, modify or otherwise affect the rights or duties
of
the Administrative Agent or an Issuing Bank hereunder without the prior written
consent of the Administrative Agent or such Issuing Bank acting as such at
the
effective date of such agreement, as applicable. Each Lender shall be bound
by
any waiver, amendment or modification authorized by this Section 9.08 and
any consent by any Lender pursuant to this Section 9.08 shall bind any
assignee of such Lender.
(c) Without
the consent of the Syndication Agent, the Documentation Agent or any Joint
Lead
Arranger or any Lender or Issuing Bank, the Loan Parties and the Administrative
Agent may (in their respective sole discretion, or shall, to the extent required
by any Loan Document) enter into any amendment, modification or waiver of any
Loan Document, or enter into any new agreement or instrument, to effect the
granting, perfection, protection, expansion or enhancement of any security
interest in any Collateral or additional property to become Collateral for
the
benefit of the Secured Parties, or as required by local law to give effect
to,
or protect any security interest for the benefit of the Secured Parties, in
any
property or so that the security interests therein comply with applicable
law.
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(d) Notwithstanding
the foregoing, this Agreement may be amended (or amended and restated) with
the
written consent of the Required Lenders, the Administrative Agent, Holdings
and
the Borrowers (i) 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
Revolving Loans and the accrued interest and fees in respect thereof and (ii)
to
include appropriately the Lenders holding such credit facilities in any
determination of the Required Lenders.
SECTION
9.09. Interest
Rate Limitation.
Notwithstanding anything herein to the contrary, if at any time the applicable
interest rate, together with all fees and charges that are treated as interest
under applicable law (collectively, the “Charges”),
as
provided for herein or in any other document executed in connection herewith,
or
otherwise contracted for, charged, received, taken or reserved by any Lender
or
any Issuing Bank, shall exceed the maximum lawful rate (the “Maximum
Rate”)
that
may be contracted for, charged, taken, received or reserved by such Lender
in
accordance with applicable law, the rate of interest payable hereunder, together
with all Charges payable to such Lender or such Issuing Bank, shall be limited
to the Maximum Rate;
provided,
that
such excess amount shall be paid to such Lender or such Issuing Bank on
subsequent payment dates to the extent not exceeding the legal
limitation.
SECTION
9.11. WAIVER
OF JURY TRIAL.
EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR
ANY
OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER
LOAN
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 9.11.
SECTION
9.15. Jurisdiction;
Consent to Service of Process.
v) Each
of the parties hereto hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State court
or federal court of the United States of America sitting in New York City,
and
any appellate court from any thereof (collectively, “New
York Courts”),
in
any action or proceeding arising out of or relating to this Agreement or the
other Loan Documents, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing
in this Agreement shall affect any right that any party may otherwise have
to
bring any action or proceeding relating to this Agreement or any of the other
Loan Documents in the courts of any jurisdiction, except that each of the Loan
Parties agrees that (a) it will not bring any such action or proceeding in
any
court other than New York Courts (it being acknowledged and agreed by the
parties hereto that any other forum would be inconvenient and inappropriate
in
view of the fact that more of the Lenders who would be affected by any such
action or proceeding have contacts with the State of New York than any other
jurisdiction), and (b) in any such action or proceeding brought against any
Loan
Party in any other court, it will not assert any cross-claim, counterclaim
or
setoff, or seek any other affirmative relief, except to the extent that the
failure to assert the same will preclude such Loan Party from asserting or
seeking the same in the New York Courts.
(b) Each
of
the parties hereto hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now
or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement or the other Loan Documents in any New
York
State or federal court. Each of
Amended
and Restated Revolving Credit Agreement
-157-
SECTION
9.17. Platform;
Borrower Materials.
The
Borrowers hereby acknowledge that (a) the Administrative Agent and/or the Joint
Lead Arrangers will make available to the Lenders and the Issuing Bank materials
and/or information provided by or on behalf of the Borrowers hereunder
(collectively, “Borrower
Materials”)
by
posting the Borrower Materials on IntraLinks or another similar electronic
system (the “Platform”),
and
(b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do
not wish to receive material non-public information with respect to the
Borrowers or their securities) (each, a “Public
Lender”).
Each
Borrower hereby agrees that it will use commercially reasonable efforts to
identify that portion of the Borrower Materials that may be distributed to
the
Public Lenders and that (i) all such Borrower Materials shall be clearly and
conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word
“PUBLIC” shall appear prominently on the first page thereof, (ii) by marking
Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized
the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank and the
Lenders to treat such Borrower Materials as either publicly available
information or not material information (although it may be sensitive and
proprietary) with respect to the Borrowers or their
Amended
and Restated Revolving Credit Agreement
-158-
SECTION
9.19. Judgment
Currency.
If, for
the purposes of obtaining judgment in any court, it is necessary to convert
a
sum due hereunder or any other Loan Document in one currency into another
currency, 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 that on which
final judgment is given. The obligation of the Borrowers in respect of any
such
sum due from it to the Administrative Agent or the Lenders hereunder or under
the other Loan Documents shall, notwithstanding any judgment in a currency
(the
“Judgment
Currency”)
other
than that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the “Agreement
Currency”),
be
discharged only to the extent that on the Business Day following receipt by
the
Administrative Agent of any sum adjudged to be so due in the Judgment Currency,
the Administrative Agent may in accordance with normal banking procedures
purchase the Agreement Currency with the Judgment Currency. If the amount of
the
Agreement Currency so purchased is less than the sum originally due to the
Administrative Agent from any Borrower in the Agreement Currency, such Borrower
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify the Administrative Agent or the Person to whom such obligation was
owing against such loss. If the amount of the Agreement Currency so purchased
is
greater than the sum originally due to the Administrative Agent in such
currency, the Administrative Agent agrees to return the amount of any excess
to
such Borrower (or to any other Person who may be entitled thereto under
applicable law).
SECTION
9.20. USA
PATRIOT Act Notice.
Each
Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrowers that pursuant to the requirements of the USA PATRIOT
Act
(Title
III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),
it is
required to obtain, verify and record information that identifies each Loan
Party, which information includes the name and address of each Loan Party and
other information that will allow such Lender or the Administrative Agent,
as
applicable, to identify each Loan Party in accordance with the Act.
SECTION
9.21. Joint
and Several Liability.
All
Revolving Loans, upon funding, shall be deemed to be jointly funded to and
received by the Borrowers. Each Borrower jointly and severally agrees to pay,
and shall be jointly and severally liable under this Agreement for, all
Obligations, regardless of the manner or amount in which proceeds of Revolving
Loans are used, allocated, shared, or disbursed by or among the Borrowers
themselves, or the manner in which an Agent and/or any Lender accounts for
such
Revolving Loans or other extensions of credit on its books and records. Each
Borrower shall be liable for all amounts due to an Agent and/or any Lender
under
this Agreement, regardless of which Borrower actually receives Revolving Loans
or other extensions of credit hereunder or the amount of such Revolving Loans
and extensions of credit received or the manner in which such Agent and/or
such
Lender accounts for such Revolving Loans or other extensions of credit on its
books and records. Each Borrower’s Obligations with respect to Revolving Loans
and other extensions of credit made to it, and such Borrower’s Obligations
arising as a result of the joint and several liability of such Borrower
hereunder, with respect to Loans made to the other Borrowers hereunder, shall
be
separate and distinct obligations, but all such Obligations shall be primary
obligations of such Borrower. The Borrowers acknowledge and expressly agree
with
the Agents and each Lender that the joint and several liability of each Borrower
is required solely as a condition to, and is given solely as inducement for
and
in consideration of, credit or accommodations extended or to be extended under
the Loan Documents to any or all of the other Borrowers and is not required
or
given as a condition of extensions of credit to such Borrower. Each Borrower’s
obligations under this Agreement and as an obligor under a Guaranty Agreement
shall be separate and distinct obligations. Each Borrower’s obligations under
this Agreement shall, to the fullest extent permitted by law, be unconditional
irrespective of (i) the validity or enforceability, avoidance, or subordination
of the Obligations of any other Borrower or of any promissory note or other
document evidencing all or any part of the Obligations of any other Borrower,
(ii) the absence of any attempt to collect the Obligations from any other
Borrower, any Guarantor, or any other security therefor, or the absence of
any
other action to enforce the same, (iii) the waiver, consent, extension,
forbearance, or granting of any indulgence by an Agent and/or any Lender with
respect to any provision of any instrument evidencing the Obligations of any
other Borrower or Guarantor, or any part thereof, or any other agreement now
or
hereafter executed by any other Borrower or Guarantor and delivered to an Agent
and/or any Lender, (iv) the failure by an Agent and/or any Lender to take any
steps to perfect and maintain its security interest in, or to preserve its
rights to, any security or collateral for the Obligations of any other Borrower
or Guarantor, (v) an Agent’s and/or any Lender’s election, in any
proceeding instituted under the Bankruptcy Code, of the application of Section
1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a security
interest by any other Borrower, as debtor-in-possession under Section 364 of
the
Bankruptcy Code, (vii) the disallowance of all or any portion of an Agent’s
and/or any Lender’s claim(s) for the repayment of the Obligations of any other
Borrower under Section 502 of the Bankruptcy Code, or (viii) any other
circumstances which might constitute a legal or
Amended
and Restated Revolving Credit Agreement
-160-
SECTION
9.22. Contribution
and Indemnification among the Borrowers.
Each
Borrower is obligated to repay the Obligations as joint and several obligor
under this Agreement. To the extent that any Borrower shall, under this
Agreement as a joint and several obligor, repay any of the Obligations
constituting Revolving Loans made to another Borrower hereunder or other
Obligations incurred directly and primarily by any other Borrower (an
“Accommodation
Payment”),
then
the Borrower making such Accommodation Payment shall be entitled to contribution
and indemnification from, and be reimbursed by, each of the other Borrowers
in
an amount, for each of such other Borrowers, equal to a fraction of such
Accommodation Payment, the numerator of which fraction is such other Borrower’s
Allocable Amount (as defined below) and the denominator of which is the sum
of
the Allocable Amounts of all of the Borrowers. As of any date of determination,
the “Allocable Amount” of each Borrower shall be equal to the maximum amount of
liability for Accommodation Payments which could be asserted against such
Borrower hereunder without (a) rendering such Borrower “insolvent” within the
meaning of Section 101 (31) of the Bankruptcy Code, Section 2 of the Uniform
Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent
Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small
capital or assets, within the meaning of Section 548 of the Bankruptcy Code,
Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower
unable to pay its debts as they become due within the meaning of Section 548
of
the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA. All
rights and claims of contribution, indemnification, and reimbursement under
this
Section shall be subordinate in right of payment to the prior payment in full
of
the Obligations. The provisions of this Section shall, to the extent expressly
inconsistent with any provision in any Loan Document, supersede such
inconsistent provision.
SECTION
9.23. Agency
of Company for Each Other Borrower.
Each of
the other Borrowers irrevocably appoints the Company as its agent for all
purposes relevant to this Agreement, including the giving and receipt of notices
and execution and delivery of all documents, instruments, and certificates
contemplated herein (including, without limitation, execution and delivery
to
the Agents of Borrowing Base Certificates, Borrowing Requests and Interest
Election Requests) and all modifications hereto. Any acknowledgment, consent,
direction, certification, or other action which might otherwise be valid or
effective only if given or taken by all or any of the Borrowers or acting
singly, shall be valid and effective if given or taken only by the Company,
whether or not any of the other Borrowers joins therein, and the Agents and
the
Lenders shall have no duty or obligation to make further inquiry with respect
to
the authority of the Company under this Section 9.23, provided that nothing
in
this Section 9.23 shall limit the effectiveness of, or the right of the Agents
and the Lenders to rely upon, any notice (including without limitation a
Borrowing Request or an Interest Election Request), document, instrument,
certificate, acknowledgment, consent, direction, certification, or other action
delivered by any Borrower pursuant to this Agreement.
SECTION
9.25. Express
Waivers By Borrowers In Respect of Cross Guaranties and Cross
Collateralization.
Each
Borrower agrees as follows:
(a) Each
Borrower hereby waives: (i) notice of acceptance of this Agreement; (ii) notice
of the making of any Revolving Loans, the issuance of any Letter of Credit
or
any other financial accommodations made or extended under the Loan Documents
or
the creation or existence of any Obligations; (iii) notice of the amount of
the
Obligations, subject, however, to such Borrower’s right to make inquiry of the
Administrative Agent to ascertain the amount of the Obligations at any
reasonable time; (iv) notice of any adverse change in the financial condition
of
any other Borrower or of any other fact that might increase such Borrower’s risk
with respect to such other Borrower under the Loan Documents; (v) notice of
presentment for payment, demand, protest, and notice thereof as to any
promissory notes or other instruments among the Loan Documents; and (vii) all
other notices (except if such notice is specifically required to be given to
such Borrower hereunder or under any of the other Loan Documents to which such
Borrower is a party) and demands to which such Borrower might otherwise be
entitled;
Amended
and Restated Revolving Credit Agreement
-162-
(b) Each
Borrower hereby waives the right by statute or otherwise to require an Agent
or
any Lender to institute suit against any other Borrower or to exhaust any rights
and remedies which an Agent or any Lender has or may have against any other
Borrower. Each Borrower further waives any defense arising by reason of any
disability or other defense of any other Borrower (other than the defense that
the Obligations shall have been fully and finally performed and paid) or by
reason of the cessation from any cause whatsoever of the liability of any such
Borrower in respect thereof.
(c) Each
Borrower hereby waives and agrees not to assert against an Agent, any Lender,
or
any Issuing Bank: (i) any defense (legal or equitable), set-off, counterclaim,
or claim which such Borrower may now or at any time hereafter have against
any
other Borrower or any other party liable under the Loan Documents; (ii) any
defense, set-off, counterclaim, or claim of any kind or nature available to
any
other Borrower against an Agent, any Lender, or any Issuing Bank, arising
directly or indirectly from the present or future lack of perfection,
sufficiency, validity, or enforceability of the Obligations or any security
therefor; (iii) any right or defense arising by reason of any claim or defense
based upon an election of remedies by an Agent, any Lender, or any Issuing
Bank
under any applicable law; (iv) the benefit of any statute of limitations
affecting any other Borrower’s liability hereunder;
(d) Each
Borrower consents and agrees that, without notice to or by such Borrower and
without affecting or impairing the obligations of such Borrower hereunder,
the
Agents may (subject to any requirement for consent of any of the Lenders to
the
extent required by this Agreement), by action or inaction: (i) compromise,
settle, extend the duration or the time for the payment of, or discharge the
performance of, or may refuse to or otherwise not enforce the Loan Documents;
(ii) release all or any one or more parties to any one or more of the Loan
Documents or grant other indulgences to any other Borrower in respect thereof;
(iii) amend or modify in any manner and at any time (or from time to time)
any
of the Loan Documents; or (iv) release or substitute any Person liable for
payment of the Obligations, or enforce, exchange, release, or waive any security
for the Obligations or any Guaranty of the Obligations;
SECTION
9.26. Intercreditor
Agreements and Collateral Agreement.
Each
Lender hereunder (a) consents to the priority and/or subordination of Liens
provided for in the Intercreditor Agreement, (b) consents to the priority and/or
subordination of Liens provided for in the Senior Lender Intercreditor
Agreement, (c) agrees that it will be bound by and will take no actions contrary
to the provisions of the Intercreditor Agreement or the Senior
Lender
Amended
and Restated Revolving Credit Agreement
-163-
Intercreditor
Agreement, (c) authorizes and instructs the Collateral Agent to enter into
the
Intercreditor Agreement as First Lien Intercreditor Agent and on behalf of
such
Lender, (d) authorizes and instructs the Administrative Agent and the Collateral
Agent to enter into the Senior Lender Intercreditor Agreement as Revolving
Facility Administrative Agent and Collateral Agent, respectively, and on behalf
of such Lender, and (e) consents to the amendment of the First Lien Guarantee
and Collateral Agreement under (and as defined in) the Existing Credit
Agreement, in the form of the Collateral Agreement referred to herein. The
foregoing provisions are intended as an inducement to the Lenders to extend
credit and such Lenders are intended third party beneficiaries of such
provisions and the provisions of the Intercreditor Agreement and the Senior
Lender Intercreditor Agreement.
W/1118098v12
-164-
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
written above.
COVALENCE
SPECIALTY MATERIALS CORP.
By:
Name:
Title:
[Signature
Page to the Amended and Restated Revolving Credit
Agreement]
XXXXX
PLASTICS GROUP, INC.
By:
Name:
Title:
[Signature
Page to the Amended and Restated Revolving Credit Agreement]
COVALENCE
SPECIALTY ADHESIVES LLC
By: COVALENCE
SPECIALTY MATERIALS CORP.,
its
sole
member and manager
By:_________________________________
Name:
Title:
COVALENCE
SPECIALTY COATINGS LLC
By: COVALENCE
SPECIALTY MATERIALS CORP.,
its
sole
member and manager
By:_________________________________
Name:
Title:
[Signature
Page to the Amended and Restated Revolving Credit
Agreement]
XXXXX
PLASTICS HOLDING CORPORATION
XXXXX
PLASTICS CORPORATION
AEROCON,
INC.
XXXXX
IOWA CORPORATION
XXXXX
PLASTICS DESIGN CORPORATION
XXXXX
PLASTICS TECHNICAL SERVICES, INC.
XXXXX
XXXXXXXX CORPORATION
CARDINAL
PACKAGING, INC.
CPI
HOLDING CORPORATION
KNIGHT
PLASTICS, INC.
PACKERWARE
CORPORATION
PESCOR,
INC.
POLY-SEAL
CORPORATION
VENTURE
PACKAGING, INC.
VENTURE
PACKAGING MIDWEST, INC.
XXXXX
PLASTICS ACQUISITION CORPORATION III
XXXXX
PLASTICS ACQUISITION CORPORATION V
XXXXX
PLASTICS ACQUISITION CORPORATION VII
XXXXX
PLASTICS ACQUISITION CORPORATION VIII
XXXXX
PLASTICS ACQUISITION CORPORATION IX
XXXXX
PLASTICS ACQUISITION CORPORATION X
XXXXX
PLASTICS ACQUISITION CORPORATION XI
XXXXX
PLASTICS ACQUISITION CORPORATION XII
XXXXX
PLASTICS ACQUISITION CORPORATION XIII
XXXX
GROUP, INC.
SAFFRON
ACQUISITION CORP.
SUN
COAST INDUSTRIES, INC.
By:
Name:
Title:
XXXXXX
PLASTICS, INC.
By:
Name:
Title:
[Signature
Page to the Amended and Restated Revolving Credit Agreement]
XXXXX
PLASTICS ACQUISITION CORPORATION XV, LLC
By: Xxxxx
Plastics Corporation,
its
sole
member
By:________________________________
Name:
Title:
SETCO,
LLC
By: Xxxx
Group, Inc.,
its
sole
member
By:________________________________
Name:
Title:
TUBED
PRODUCTS, LLC
By: Xxxx
Group, Inc.,
its
sole
member
By:________________________________
Name:
Title:
[Signature
Page to the Amended and Restated Revolving Credit
Agreement]
BANK
OF AMERICA, N.A.,
as
Administrative Agent and as Collateral Agent and as a Lender
By:
Name:
Title: