EXHIBIT 10.1
XXXXX PLASTICS CORPORATION
BPC HOLDING CORPORATION
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
CREDIT AND GUARANTY AGREEMENT
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AND GUARANTY
AGREEMENT (this "AMENDMENT") is dated as of June 3, 2005 (the "AMENDMENT
EFFECTIVE DATE"), among Xxxxx Plastics Corporation, a Delaware corporation
("COMPANY"), BPC Holding Corporation, a Delaware corporation ("HOLDINGS"),
certain subsidiaries of Company as Guarantors, the Lenders party hereto,
Xxxxxxx Xxxxx Credit Partners L.P. ("GSCP") as co-syndication agent, joint lead
arranger and joint bookrunner, JPMorgan Chase Bank, N.A. ("JPMCB"), as co-
syndication agent, joint lead arranger and joint bookrunner, Deutsche Bank
Trust Company Americas (together with any of its designated affiliates,
"DBTCA"), as Administrative Agent, Collateral Agent, an Issuing Bank and Swing
Line Lender, Fleet National Bank ("FLEET NATIONAL BANK"), as an Issuing Bank
and predecessor Swing Line Lender, and The Royal Bank of Scotland and General
Electric Capital Corporation, as Co-Documentation Agents.
RECITALS
WHEREAS, Company entered into the Second Amended and Restated
Credit and Guaranty Agreement dated as of August 9, 2004, as amended by the
First Amendment to Second Amended and Restated Credit and Guaranty Agreement
dated as of January 1, 2005 (the Second Amended and Restated Credit and
Guaranty Agreement, together with the First Amendment thereto, the "EXISTING
AGREEMENT"), among Company, Holdings, certain subsidiaries of Company as
Guarantors, the Lenders party thereto, GSCP, as a Lender, JPMCB, as Syndication
Agent, Fifth Third, as Administrative Agent, Bank of America, as Collateral
Agent, Issuing Bank and Swing Line Lender, and The Royal Bank of Scotland and
General Electric Capital Corporation, as Co-Documentation Agents;
WHEREAS, Company desires to acquire the capital stock of Xxxx
Group, Inc. ("XXXX"), refinance or retire substantially all existing debt of
Xxxx and its Subsidiaries, redeem all preferred stock of Xxxx and its
Subsidiaries and pay fees, commissions and expenses in connection therewith
(the "XXXX ACQUISITION") pursuant to that certain Agreement and Plan of Merger
dated May 5, 2005 by and among Company, Xxxxx Plastics Acquisition Corporation
VI, Xxxx, the sellers listed on the signature pages thereto and Fremont
Acquisition Company, L.L.C. (the "XXXX MERGER AGREEMENT");
WHEREAS, for purposes of the Xxxx Acquisition and for general
corporate purposes, Company has requested that the Requisite Lenders or the
Lenders, as the case may be (in each case as defined in the Amended Credit
Agreement), amend the Existing Agreement: (i) to make available $465.0 million
of additional senior secured term loans, (ii) to increase the Revolving
Commitments and any Incremental Revolving Commitments to an aggregate of $150.0
million and to extend the Revolving Commitment Termination Date to March 31,
2010; and (iii) to make other amendments to the Existing Agreement, as more
particularly set forth in the Amended Credit Agreement (as defined below).
WHEREAS, attached hereto as Exhibit A is a conformed copy of the
Existing Agreement which contains all of the specific modifications, amendments
and supplements necessary or desirable in connection with the closing of the
Xxxx Acquisition concurrently herewith and certain other amendments requested
by Company (including the schedules and exhibits thereto, the "AMENDED CREDIT
AGREEMENT");
NOW, THEREFORE, in consideration of the premises made hereunder,
and for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
Section 1. Definitions. Unless otherwise expressly defined
herein, all capitalized terms used herein and defined in the Amended Credit
Agreement shall be used herein as so defined.
Section 2. Amendments to the Existing Agreement. The Existing
Agreement is hereby amended and modified from and after the Amendment Effective
Date as reflected in the Amended Credit Agreement. Any provision of the
Existing Agreement which is different from that set forth in the Amended Credit
Agreement shall be superseded in all respects by the provisions of the Amended
Credit Agreement.
Section 3. Appointment of Administrative Agent, Swing Line Lender
and Collateral Agent. The Lenders and Company hereby appoint DBTCA as
Administrative Agent, as Swing Line Lender and as Collateral Agent under the
Amended Credit Agreement and the other Credit Documents, and acknowledge and
agree that (i) effective as of the Amendment Effective Date, DBTCA shall
receive all of the benefits of Section 9 of the Amended Credit Agreement and
(ii) DBTCA has not reviewed any Credit Documents with any purpose other than
with the purpose of assuming the role of Administrative Agent, Swing Line
Lender and Collateral Agent, and that the knowledge of all prior Administrative
Agents, Swing Line Lenders and Collateral Agents under the Existing Agreement
and other Credit Documents shall not be imputed to DBTCA.
Section 4. Global Amendment. As of the Amendment Effective Date,
(i) each reference in the Credit Documents to "Xxxxxxx Xxxxx Credit Partners
L.P." or "GSCP", solely in its capacity as Administrative Agent, and each
reference to "Fifth Third Bank" or "Fifth Third", solely in its capacity as
Administrative Agent, is hereby amended by substituting therefor "Deutsche Bank
Trust Company Americas", (ii) each reference in the Credit Documents to "Fleet
National Bank" or "Fleet", solely in its capacity as Swing Line Lender, is
hereby amended by substituting therefor "Deutsche Bank Trust Company Americas"
and (iii) each reference in the Credit Documents to "Fleet National Bank" or
"Fleet", solely in its capacity as Collateral Agent, is hereby amended by
substituting therefor "Deutsche Bank Trust Company Americas".
Section 5. Conditions Precedent. This Amendment shall become
effective upon satisfaction of each of the conditions precedent set forth in
Sections 3.2 and 3.4 of the Amended Credit Agreement.
Section 6. Designated Senior Indebtedness. Each of the Company
and the Guarantors party hereto that are "Note Guarantors" as such term is
defined in the indenture, dated as of July 22, 2002 (as amended, restated or
supplemented, the "Indenture") among Holdings, Company, the guarantors listed
on the signature page thereof, and U.S. Bank Trust National Association, as
trustee, relating to the 10 3/4% Senior Subordinated Notes due 2012 hereby
specifically designate the "Senior Indebtedness" (as defined in the Indenture)
incurred under the Existing Agreement, the Amendment and the Amended Credit
Agreement as "Designated Senior Indebtedness" for purposes of the Indenture.
Section 7. Representations and Warranties. Company and Guarantors
hereby represent and warrant to Agents and Lenders that, as of the date hereof
and after giving effect to this Amendment that the Amended Credit Agreement and
all other Credit Documents are and remain legal, valid, binding and enforceable
obligations in accordance with the terms thereof except as may be limited by
2
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally or by equitable principles (regardless
of whether enforcement is sought in equity or at law).
Section 8. Survival of Representations and Warranties. All
representations and warranties made in this Amendment and the Amended Credit
Agreement shall survive the execution and delivery of this Amendment, and no
investigation by Agents or Lenders shall affect the representations and
warranties or the right of Agents and Lenders to rely upon them. If any
representation or warranty made in this Amendment or the Amended Credit
Agreement is false in any material respect as of the date made or deemed made,
then such shall constitute an Event of Default under the Amended Credit
Agreement.
Section 9. Reference to Agreement. Each of the Credit Documents,
including the Amended Credit Agreement, and any and all other agreements,
documents or instruments now or hereafter executed and/or delivered pursuant to
the terms hereof or pursuant to the terms of the Amended Credit Agreement, are
hereby amended so that any reference in such Credit Documents to the Credit
Agreement, whether direct or indirect, shall mean a reference to the Amended
Credit Agreement. This Amendment shall constitute a Credit Document under the
Amended Credit Agreement.
Section 10. Costs and Expenses. Company shall pay on demand all
reasonable costs and expenses of Agents (including the reasonable fees, costs
and expenses of each counsel to any of the Agents) incurred in connection with
the preparation, execution and delivery of this Amendment.
Section 11. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK).
Section 12. Execution. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
Section 13. Limited Effect. This Amendment relates only to the
specific matters expressly covered herein, shall not be considered to be a
waiver of any rights or remedies any Lender may have under the Amended Credit
Agreement or under any other Credit Document, and shall not be considered to
create a course of dealing or to otherwise obligate in any respect any Lender
to execute similar or other amendments or grant any waivers under the same or
similar or other circumstances in the future.
Section 14. Certain Waivers. Each of Company and Guarantors hereby
agrees that neither the Agents nor any Lender shall be liable under a claim of,
and hereby waives any claim against the Agents and the Lenders based on, lender
liability (including, but not limited to, liability for breach of the implied
covenant of good faith and fair dealing, fraud, negligence, conversion,
misrepresentation, duress, control and interference, infliction of emotional
distress and defamation and breach of fiduciary duties) as a result of this
Amendment and any discussions or actions taken or not taken by the Agents or
the Lenders on or before the date hereof or the discussions conducted in
3
connection therewith, or any course of action taken by the Agents or any Lender
in response thereto or arising therefrom; provided, that the foregoing waiver
shall not include the waiver of any claims which are based on the gross
negligence or willful misconduct of any Agent or any Lender or any of their
respective agents. This Section 14 shall survive the execution and delivery of
this Amendment and the termination of the Existing Agreement.
Section 15. Ratification by Guarantors. Each of the Guarantors
agrees and consents to this Amendment and to the documents and agreements
referred to herein. Each of the Guarantors agrees and acknowledges that (i)
notwithstanding the effectiveness of this Amendment, such Guarantor's Guaranty
shall remain in full force and effect without modification thereto and (ii)
nothing herein shall in any way limit any of the terms or provisions of such
Guarantor's Guaranty or any other Credit Document executed by such Guarantor
(as the same may be amended from time to time), all of which are hereby
ratified, confirmed and affirmed in all respects. Each of the Guarantors
hereby agrees and acknowledges that no other agreement, instrument, consent or
document shall be required to give effect to this Section 15. Each of the
Guarantors hereby further acknowledges that Company, Agents and any Lender may
from time to time enter into any further amendments, modifications,
terminations and/or waivers of any provisions of the Credit Documents without
notice to or consent from such Guarantor and without affecting the validity or
enforceability of such Guarantor's Guaranty or giving rise to any reduction,
limitation, impairment, discharge or termination of such Guarantor's Guaranty.
[signature pages follow]
4
LA\1430179.12
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed by their respective officers thereunto duly authorized, as of
the date first above written.
XXXXX PLASTICS CORPORATION
By: ______________________________
Name:
Title:
BPC HOLDING CORPORATION
By: ______________________________
Name:
Title:
LA\1430179.12
GUARANTOR SUBSIDIARIES
AeroCon, Inc.
Xxxxx Iowa Corporation
Xxxxx Plastic Design Corporation
Xxxxx Plastics Technical Services, Inc.
Xxxxx Xxxxxxxx Corporation
Cardinal Packaging, Inc.
CPI Holding Corporation
Knight Plastics, Inc.
Xxxxxx Plastics, Inc.
Packerware Corporation
Pescor, Inc.
Poly-Seal Corporation
Venture Packaging, Inc.
Venture Packaging Midwest, Inc.
Xxxxx Plastics Acquisition Corporation II
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.
Plastics Funding Corporation
Saffron Acquisition Corp.
Sun Coast Industries, Inc.
By: ______________________________
Name:
Title:
Xxxxx Plastics Acquisition Corporation XIV, LLC
Xxxxx Plastics Acquisition Corporation XV, LLC
Setco, LLC
Tubed Products, LLC
By: ______________________________
Name:
Title:
LA\1430179.12
AGENTS AND LENDERS:
XXXXXXX SACHS CREDIT PARTNERS L.P.
as Co-Syndication Agent, joint lead arranger, joint bookrunner
and Lender
By: ________________________________________
Authorized Signatory
LA\1430179.12
JPMORGAN CHASE BANK, N.A.
as Co-Syndication Agent, joint lead arranger, joint bookrunner
and Lender
By: _____________________________________
Name:
Title:
LA\1430179.12
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent, Collateral Agent, an Issuing Bank, Swing Line
Lender and Lender
By: _____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
LA\1430179.12
FLEET NATIONAL BANK,
as an Issuing Bank and predecessor Swing Line Lender
By: _____________________________________
Name:
Title:
LA\1430179.12
THE ROYAL BANK OF SCOTLAND,
as Co-Documentation Agent and Lender
By: _____________________________________
Name:
Title:
LA\1430179.12
GENERAL ELECTRIC CAPITAL CORPORATION,
as Co-Documentation Agent and Lender
By: _____________________________________
Name:
Title:
LA\1430179.12
[LENDER], as Lender
By: _____________________________________
Name:
Title:
LA\1430179.12
EXHIBIT A TO SECOND AMENDMENT TO SECOND AMENDED AND
RESTATED CREDIT AND GUARANTY AGREEMENT
SECOND AMENDED AND RESTATED
CREDIT AND GUARANTY AGREEMENT
DATED AS OF AUGUST 9, 2004
AS AMENDED AS OF JANUARY 1, 2005
AS FURTHER AMENDED AS OF JUNE 3, 2005
AMONG
XXXXX PLASTICS CORPORATION,
BPC HOLDING CORPORATION,
CERTAIN SUBSIDIARIES OF XXXXX PLASTICS CORPORATION
AS GUARANTORS,
VARIOUS LENDERS,
XXXXXXX XXXXX CREDIT PARTNERS L.P.
AND
JPMORGAN CHASE BANK, N.A.
AS JOINT LEAD ARRANGERS, JOINT BOOKRUNNERS AND CO-SYNDICATION AGENTS,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS ADMINISTRATIVE AGENT, COLLATERAL AGENT,
AN ISSUING BANK AND SWING LINE LENDER
FLEET NATIONAL BANK
AS AN ISSUING BANK AND PREDECESSOR SWING LINE LENDER,
AND
THE ROYAL BANK OF SCOTLAND
AND
GENERAL ELECTRIC CAPITAL CORPORATION,
AS CO-DOCUMENTATION AGENTS
________________________________________________________
$945,000,000 SENIOR SECURED CREDIT FACILITIES
________________________________________________________
NY12526:37176.3
LA\1431665.15
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS AND INTERPRETATION...........................2
1.1. Definitions..............................................2
1.2. Accounting Terms.........................................43
1.3. Interpretation, Etc......................................43
1.4. Interrelationship with the Existing Agreement............43
SECTION 2. LOANS AND LETTERS OF CREDIT..............................44
2.1. Term Loans...............................................44
2.2. Incremental Term Loans...................................45
2.3. Revolving Loans..........................................46
2.4. Incremental Revolving Loans..............................47
2.5. Issuance of Letters of Credit and Purchase of
Participations Therein...................................48
2.6. Swing Line Loans.........................................53
2.7. Pro Rata Shares; Availability of Funds...................56
2.8. Use of Proceeds..........................................57
2.9. Evidence of Debt; Register; Lenders' Books and Records;
Notes....................................................57
2.10. Interest on Loans........................................58
2.11. Conversion/Continuation..................................60
2.12. Default Interest.........................................60
2.13. Fees.....................................................61
2.14. Scheduled Payments/Commitment Reductions.................62
2.15. Voluntary Prepayments/Commitment Reductions..............63
2.16. Mandatory Prepayments/Commitment Reductions..............65
2.17. Application of Prepayments/Reductions....................67
2.18. General Provisions Regarding Payments....................68
2.19. Ratable Sharing..........................................70
2.20. Making or Maintaining Eurodollar Rate Loans..............70
2.21. Increased Costs; Capital Adequacy........................72
2.22. Taxes; Withholding, Etc..................................74
2.23. Obligation to Mitigate...................................77
2.24. Defaulting Lenders.......................................77
2.25. Removal or Replacement of a Lender.......................78
SECTION 3. CONDITIONS PRECEDENT.....................................79
3.1. Original Closing Date....................................79
3.2. Conditions to Each Credit Extension......................85
3.3. Conditions to the 2004 Effective Date Term Loan
Commitments..............................................87
3.4. Conditions to the New Term Loan Commitments on the
Second Amendment Effective Date..........................87
3.5. Effect of Agreement on Other Credit Documents............94
-i-
SECTION 4. REPRESENTATIONS AND WARRANTIES...........................94
4.1. Organization; Requisite Power and Authority;
Qualification............................................94
4.2. Capital Stock and Ownership..............................94
4.3. Due Authorization........................................94
4.4. Guarantor Subsidiaries...................................95
4.5. No Conflict..............................................95
4.6. Governmental Consents....................................95
4.7. Binding Obligation.......................................95
4.8. Historical Financial Statements..........................96
4.9. Projections..............................................96
4.10. No Material Adverse Change...............................96
4.11. Adverse Proceedings, Etc.................................96
4.12. Payment of Taxes.........................................96
4.13. Properties...............................................97
4.14. Environmental Matters....................................97
4.15. No Defaults..............................................98
4.16. Governmental Regulation..................................98
4.17. Margin Stock.............................................98
4.18. Employee Matters.........................................98
4.19. Employee Benefit Plans...................................99
4.20. Solvency.................................................99
4.21. Compliance with Statutes, Etc............................99
4.22. Disclosure...............................................99
SECTION 5. AFFIRMATIVE COVENANTS....................................100
5.1. Financial Statements and Other Reports...................100
5.2. Existence................................................103
5.3. Payment of Taxes and Claims..............................103
5.4. Maintenance of Properties................................104
5.5. Insurance................................................104
5.6. Inspections..............................................104
5.7. Lenders Meetings.........................................105
5.8. Compliance with Laws.....................................105
5.9. Environmental............................................105
5.10. Subsidiaries.............................................106
5.11. Additional Material Real Estate Assets...................107
5.12. Interest Rate Protection.................................107
5.13. Title Insurance..........................................107
5.14. Further Assurances.......................................108
-ii-
SECTION 6. NEGATIVE COVENANTS.......................................108
6.1. Indebtedness.............................................108
6.2. Liens....................................................112
6.3. Equitable Lien...........................................113
6.4. No Further Negative Pledges..............................114
6.5. Restricted Junior Payments...............................114
6.6. Restrictions on Subsidiary Distributions.................115
6.7. Investments..............................................116
6.8. Financial Covenants......................................117
6.9. Fundamental Changes; Disposition of Assets; Acquisitions.121
6.10. Disposal of Subsidiary Interests.........................122
6.11. Transactions with Shareholders and Affiliates............122
6.12. Conduct of Business......................................123
6.13. Permitted Activities of Holdings.........................123
6.14. Amendments or Waivers of Certain Related Agreements......123
6.15. Amendments or Waivers of or with respect to Subordinated
Indebtedness.............................................124
6.16. Fiscal Year..............................................124
6.17. Derivative Transactions..................................124
SECTION 7. GUARANTY.................................................124
7.1. Guaranty of the Obligations..............................124
7.2. Contribution by Guarantors...............................125
7.3. Payment by Guarantors....................................126
7.4. Liability of Guarantors Absolute.........................126
7.5. Waivers by Guarantors....................................128
7.6. Guarantors' Rights of Subrogation, Contribution, Etc.....129
7.7. Subordination of Other Obligations.......................130
7.8. Continuing Guaranty......................................130
7.9. Authority of Guarantors or Company.......................130
7.10. Financial Condition of Company...........................130
7.11. Bankruptcy, Etc..........................................130
7.12. Discharge of Guaranty Upon Sale of Guarantor.............131
SECTION 8. EVENTS OF DEFAULT........................................131
8.1. Events of Default........................................131
8.2. Company's Right to Cure..................................135
SECTION 9. AGENTS...................................................136
9.1. Appointment of Agents....................................136
9.2. Powers and Duties........................................136
9.3. General Immunity.........................................137
9.4. Agents Entitled to Act as Lender.........................138
9.5. Lenders' Representations, Warranties and Acknowledgment..138
9.6. Right to Indemnity.......................................138
9.7. Sub-Agents...............................................139
9.8. Successor Administrative Agent, Collateral Agent and
Swing Line Lender........................................139
9.9. Collateral Documents and Guaranty........................140
-iii-
SECTION 10. MISCELLANEOUS............................................141
10.1. Notices..................................................141
10.2. Expenses.................................................141
10.3. Indemnity................................................142
10.4. Set-Off..................................................143
10.5. Amendments and Waivers...................................144
10.6. Successors and Assigns; Participations...................146
10.7. Independence of Covenants................................149
10.8. Survival of Representations, Warranties and Agreements...149
10.9. No Waiver; Remedies Cumulative...........................150
10.10.Marshalling; Payments Set Aside..........................150
10.11.Severability.............................................150
10.12.Obligations Several; Independent Nature of Lenders'
Rights...................................................150
10.13.Headings.................................................151
10.14.APPLICABLE LAW...........................................151
10.15.CONSENT TO JURISDICTION..................................151
10.16.WAIVER OF JURY TRIAL.....................................151
10.17.Confidentiality..........................................152
10.18.Usury Savings Clause.....................................153
-iv-
LA\1431665.15
APPENDICES:
A-1 2004 Effective Date Term Loan Commitments
A-2 New Term Loan Commitments
A-3 Revolving Commitments
B Notice Addresses
SCHEDULES:
1.1(a) Redemption of Certain Existing Notes
1.1(b) Existing Letters of Credit under the Existing Agreement
3.1(l) Original Closing Date Mortgaged Properties
3.4(g) Second Amendment Effective Date Mortgaged Properties
4.1 Jurisdictions of Organization and Qualification
4.2 Capital Stock and Ownership
4.4 Guarantors
4.13 Real Estate Assets
4.14 Environmental Matters
6.1(g) Surviving Indebtedness
6.2(l) Certain Liens
6.7 Existing Investments
6.8(d)(iv)Historical Quarters
EXHIBITS:
A-1 Funding Notice
A-2 Conversion/Continuation Notice
A-3 Issuance Notice
A-4 Incremental Term Loan Notice
A-5 Incremental Revolving Notice
B-1 Term Loan Note
B-2 Incremental Term Loan Note
B-3 Revolving Loan Note
B-4 Swing Line Note
C-1 Compliance Certificate
C-2 Incremental Term Loan Certificate
D Opinions of Counsel
D-1 Opinions of Counsel
E Assignment Agreement
F Certificate Re Non-bank Status
G-1 Original Closing Date Certificate
G-2 Original Closing Date Solvency Certificate
G-3 Second Amendment Effective Date Certificate
G-4 Second Amendment Effective Date Solvency Certificate
H Counterpart Agreement
I Pledge and Security Agreement
J Mortgage
K Landlord's Consent, Estoppel Certificate and Amendment
L Intercompany Subordination Agreement
M Joinder Agreement
-v-
N New Lender Supplement
O Reaffirmation and Counterpart Agreement
P Mortgage Modification
-vi-
LA\1431665.15
SECOND AMENDED AND RESTATED
CREDIT AND GUARANTY AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT,
dated as of August 9, 2004, as amended by the FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED CREDIT AND GUARANTY AGREEMENT dated as of January 1, 2005 (the
Second Amended and Restated Credit and Guaranty Agreement, together with the
First Amendment thereto, the "EXISTING AGREEMENT") and as further amended by
the Second Amendment to Second Amended and Restated Credit and Guaranty
Agreement, dated as of June 3, 2005 (the "AMENDED CREDIT AGREEMENT" or this
"AGREEMENT"), is entered into by and among XXXXX PLASTICS CORPORATION, a
Delaware corporation ("COMPANY"), BPC HOLDING CORPORATION, a Delaware
corporation ("HOLDINGS"), CERTAIN SUBSIDIARIES OF COMPANY, as Guarantors, the
Lenders party hereto from time to time, XXXXXXX SACHS CREDIT PARTNERS L.P.
("GSCP") and JPMORGAN CHASE BANK, N.A. ("JPMCB"), as Joint Lead Arrangers and
Joint Bookrunners, and as Co-Syndication Agents (together with their permitted
successors and assigns in such capacity, "CO-SYNDICATION AGENTS"), DEUTSCHE
BANK TRUST COMPANY AMERICAS (together with any of its designated affiliates,
"DBTCA"), as Administrative Agent (together with its permitted successors in
such capacity, "ADMINISTRATIVE AGENT"), as Collateral Agent (together with its
permitted successors in such capacity, "COLLATERAL AGENT"), as an Issuing Bank
and as Swing Line Lender (together with its permitted successors in such
capacity, "SWING LINE LENDER"), FLEET NATIONAL BANK, ("FLEET NATIONAL BANK") as
an Issuing Bank and predecessor Swing Line Lender, and THE ROYAL BANK OF
SCOTLAND and GENERAL ELECTRIC CAPITAL CORPORATION, as Co-Documentation Agents
(together with their permitted successors and assigns in such capacity, "CO-
DOCUMENTATION AGENTS").
RECITALS:
WHEREAS, capitalized terms used in these Recitals shall have the
respective meanings set forth for such terms in Section 1.1 hereof;
WHEREAS, Company is the borrower under the Existing Agreement by
and among Company, Holdings, certain Subsidiaries of Company as Guarantors,
Fifth Third Bank, as Administrative Agent, JPMCB, as Syndication Agent, Fleet
National Bank as Collateral Agent, Issuing Bank and Swing Line Lender, The
Royal Bank of Scotland and General Electric Capital Corporation as Co-
Documentation Agents and the Lenders party thereto.
WHEREAS, Company has requested and certain Lenders party to the
Amended Credit Agreement have agreed, to increase the size of the Term Loan
Commitment under the Existing Agreement to an aggregate principal amount equal
to $795,000,000 (it being understood by all parties hereto that the 2004
-1-
Effective Date Term Loan Commitments were fully funded on the 2004 Effective
Date and such 2004 Effective Date Term Loans, as of the date hereof, are in an
aggregate principal amount of $329,948,562.50), and to extend the maturity of
the Term Loans. $465,051,437.50 aggregate principal amount of Term Loans will
be funded on the Second Amendment Effective Date, the proceeds of which will be
used (i) to fund the acquisition of the capital stock of Xxxx Group, Inc.
("XXXX"), refinance or retire substantially all existing debt of Xxxx and its
Subsidiaries, redeem all preferred stock of Xxxx and its Subsidiaries and pay
fees, commissions and expenses in connection therewith (such transactions, the
"XXXX ACQUISITION") pursuant to that certain Agreement and Plan of Merger dated
May 5, 2005 by and among Company, Xxxxx Plastics Acquisition Corporation VI,
Xxxx, the sellers listed on the signature pages thereto and Fremont Acquisition
Company, L.L.C. (the "XXXX MERGER AGREEMENT"), and (ii) for general corporate
purposes;
WHEREAS, Company has requested, and certain Lenders party to the
Amended Credit Agreement have agreed, to increase the aggregate Revolving
Commitments from $100.0 million up to an aggregate of $150.0 million for
Company's general corporate purposes, such increase to be effected as of the
Second Amendment Effective Date or as of the Incremental Revolving Closing
Date;
WHEREAS, Company has requested, and Requisite Lenders, and in the
case of amendments to the Revolving Commitment Termination Date, Lenders
affected thereby, have agreed, to enter into this Agreement, to amend the
Existing Agreement in accordance with Section 10.5 thereof, effective as of the
Second Amendment Effective Date upon satisfaction or waiver of the conditions
precedent set forth in Section 3.4.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. DEFINITIONS AND INTERPRETATION
1.1. DEFINITIONS
. The following terms used herein, including in the preamble,
recitals, exhibits and schedules hereto, shall have the following meanings:
"2002 MERGER" means the acquisition by Sponsors of substantially
all the outstanding Capital Stock of Holdings.
"2002 MERGER AGREEMENT" means the Agreement and Plan of Merger,
dated as of May 25, 2002, among XX Xxxxx Acquisition Corp., Sponsors, Holdings,
Company, Sellers (as defined therein) and Sellers' Representatives (as defined
therein), as in effect on the Original Closing Date.
"2002 MERGER FINANCING REQUIREMENTS" means the aggregate amount
necessary to pay (i) the cash portion of the consideration due to shareholders
of Holdings under the 2002 Merger Agreement, (ii) the costs of prepaying,
redeeming or purchasing the Indebtedness of Holdings and Company to be paid on
-2-
the Original Closing Date and thereafter pursuant to redemption notices to be
delivered on the Original Closing Date and (iii) all other Original Transaction
Costs, in each of cases (i), (ii) and (iii) in accordance with the 2002 Merger
Agreement and Schedule 1.1(a).
"2003 CREDIT AGREEMENT" means the Amended and Restated Credit and
Guaranty Agreement, dated as of November 10, 2003, by and among Company,
Holdings, certain Subsidiaries of Company as Guarantors, the Agents and various
Lenders.
"2004 EFFECTIVE DATE" as defined in Section 3.3.
"2004 EFFECTIVE DATE TERM LOAN" means a term loan made by a Lender
on the 2004 Effective Date pursuant to Section 2.1(a) of the Existing
Agreement. The aggregate principal amount of the 2004 Effective Date Term
Loans outstanding as of the date hereof is $329,948,562.50.
"2004 EFFECTIVE DATE TERM LOAN COMMITMENT" means the commitment of
a Lender under the Existing Agreement to make or otherwise fund a 2004
Effective Date Term Loan on the 2004 Effective Date and "2004 EFFECTIVE DATE
TERM LOAN COMMITMENTS" means such commitments of all Lenders in the aggregate.
The amount of each Lender's 2004 Effective Date Term Loan Commitment, if any,
is set forth on Annex A-1 or in the applicable Assignment Agreement, subject to
any adjustment or reduction pursuant to the terms and conditions hereof.
"2004 EFFECTIVE DATE TERM LOAN LENDER" means a Lender who funded
or made a 2004 Effective Date Term Loan.
"ADDITIONAL ISSUING BANK" as defined in Section 2.5(i).
"ADDITIONAL NET SALES" means, for any Fiscal Year, the sum of
(a) for each Person directly or indirectly acquired by the Company in a
Permitted Acquisition during such Fiscal Year, the product of (i) 7.5%
multiplied by (ii) the historical net sales of such Person during its most
recent four full Fiscal Quarters immediately preceding the Permitted
Acquisition for which quarterly financial statements have been delivered to the
Lenders pursuant to Section 5.1(a) , multiplied by (iii) a fraction, the
denominator of which is 365 and the numerator of which is the number of
days from (but excluding) the date of such Permitted Acquisition to
(and including) the last day of such Fiscal Year, and (b) for each Person
directly or indirectly acquired by the Company in a Permitted Acquisition
during any prior Fiscal Year, the product of (i) 7.5% multiplied by (ii)
the historical net sales of such Person during its most recent four full
Fiscal Quarters immediately preceding the Permitted Acquisition for which
quarterly financial statements have been delivered to the Lenders pursuant to
Section 5.1(a).
"ADDITIONAL SPONSOR EQUITY" means Cash proceeds received by
Holdings from the issuance of its Capital Stock to, or other capital
contributions by one or more Sponsors for their own account on any day after
the Second Amendment Effective Date, in an aggregate amount not to exceed
$100,000,000 during the term of this Agreement.
-3-
"ADJUSTED EURODOLLAR RATE" means, for any Interest Rate
Determination Date with respect to an Interest Period for a Eurodollar Rate
Loan, the rate per annum obtained by dividing (and rounding upward to the next
whole multiple of 1/16 of 1%) (i) (a) the rate per annum (rounded to the
nearest 1/100 of 1%) equal to the rate determined by Administrative Agent to be
the offered rate which appears on the page of the Dow Xxxxx Telerate Service
which displays an average British Bankers Association Interest Settlement Rate
(such page currently being page number 3740 or 3750, as applicable) for
deposits (for delivery on the first day of such period) with a term equivalent
to such period in Dollars, determined as of approximately 11:00 a.m. (London,
England time) on such Interest Rate Determination Date, or (b) in the event the
rate referenced in the preceding clause (a) does not appear on such page or
service or if such page or service shall cease to be available, the rate per
annum (rounded to the nearest 1/100 of 1%) equal to the rate determined by
Administrative Agent to be the offered rate on such other page or other service
which displays an average British Bankers Association Interest Settlement Rate
for deposits (for delivery on the first day of such period) with a term
equivalent to such period in Dollars, determined as of approximately 11:00 a.m.
(London, England time) on such Interest Rate Determination Date, or (c) in the
event the rates referenced in the preceding clauses (a) and (b) are not
available, the rate per annum (rounded to the nearest 1/100 of 1%) equal to the
offered quotation rate to first class banks in the London interbank market by
DBTCA for deposits (for delivery on the first day of the relevant period) in
Dollars of amounts in same day funds comparable to the principal amount of
$5,000,000, for which the Adjusted Eurodollar Rate is then being determined
with maturities comparable to such period as of approximately 11:00 a.m.
(London, England time) on such Interest Rate Determination Date, by (ii) an
amount equal to (a) one minus (b) the Applicable Reserve Requirement.
"ADMINISTRATIVE AGENT" as defined in the preamble hereto.
"ADVERSE PROCEEDING" means any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration (whether or not purportedly on behalf of Holdings or any of its
Subsidiaries) at law or in equity, or before or by any Governmental Authority,
domestic or foreign (including any Environmental Claims), whether pending or,
to the knowledge of Holdings or any of its Subsidiaries, threatened against or
affecting Holdings or any of its Subsidiaries or any property of Holdings or
any of its Subsidiaries.
"AFFECTED LENDER" as defined in Section 2.20(b).
"AFFECTED LOANS" as defined in Section 2.20(b).
"AFFILIATE" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control
with, that Person, provided no Person shall be an Affiliate of Holdings,
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Company or any of its Subsidiaries solely because such Person controls, or is
under common control with, one or more of the entities constituting the
Sponsors. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under
common control with"), as applied to any Person, means the possession, directly
or indirectly, of the power (i) to vote 10% or more of the Securities having
ordinary voting power for the election of directors of such Person or (ii) to
direct or cause the direction of the management and policies of that Person,
whether through the ownership of voting securities or by contract or otherwise.
"AGENT" means each of Co-Syndication Agents, Administrative Agent,
Collateral Agent, Co-Documentation Agents and, solely for the purposes of
Sections 9, and , each Issuing Bank and Swing Line Lender.
"AGGREGATE AMOUNTS DUE" as defined in Section 2.19.
"AGGREGATE PAYMENTS" as defined in Section 7.2.
"AGREEMENT" means the Amended Credit Agreement.
"AMENDED CREDIT AGREEMENT" as defined in the preamble hereto, as
it may be amended, supplemented or otherwise modified from time to time.
"AMENDMENT" means the Second Amendment to Second Amended and
Restated Credit and Guaranty Agreement dated as of June 3, 2005.
"APPLICABLE MARGIN" and "APPLICABLE REVOLVING COMMITMENT FEE
PERCENTAGE" mean (i) with respect to Revolving Loans that are Eurodollar Rate
Loans and the Applicable Revolving Commitment Fee Percentage, a percentage, per
annum, determined by reference to the Leverage Ratio in effect from time to
time as set forth below:
LEVERAGE APPLICABLE MARGIN APPLICABLE REVOLVING COMMITMENT
RATIO FOR REVOLVING LOANS FEE PERCENTAGE
> or = 4.50 : 1.00 2.75% 0.50 %
< 4.50 : 1.00 2.50% 0.50 %
> or = 4.00 : 1.00
< 4.00 : 1.00 2.25% 0.375 %
> or = 3.50 : 1.00
< 3.50 : 1.00 2.00% 0.375 %
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(ii) with respect to Swing Line Loans and Revolving Loans that are Base Rate
Loans, an amount equal to (a) the Applicable Margin for Eurodollar Rate Loans
as set forth in clause (i) above, as applicable, minus (b) 1.00% per annum;
(iii) with respect to Term Loans that are (a) Base Rate Loans, an amount equal
to (I) 1.00% per annum, if the Leverage Ratio is equal to or less than
4.50:1.00 or (II) 1.25% per annum, if the Leverage Ratio is greater than
4.50:1.00 or (b) Eurodollar Rate Loans, an amount equal to (I) 2.00% per annum,
if the Leverage Ratio is equal to or less than 4.50:1.00 or (II) 2.25% per
annum, if the Leverage Ratio is greater than 4.50:1.00, in each case, with the
applicable Leverage Ratio calculated in accordance with Section 6.8(d)(ii); and
(iv) with respect to Incremental Term Loans, such per annum rates as shall be
agreed to by Company and the applicable Incremental Term Loan Lenders as shown
in the applicable Incremental Term Loan Notice. No change in the Applicable
Margin or the Applicable Revolving Commitment Fee Percentage shall be effective
until three Business Days after the date on which Administrative Agent shall
have received the applicable financial statements and a Compliance Certificate
pursuant to Section 5.1(c) calculating the Leverage Ratio. At any time Company
has not submitted to Administrative Agent the applicable information as and
when required under Section 5.1(c), the Applicable Margin and the Applicable
Revolving Commitment Fee Percentage shall be determined as if the Leverage
Ratio were in excess of 4.50:1.00. Within one Business Day of receipt of
the applicable information under Section 5.1(c), Administrative Agent shall
give each Lender written notice (it being understood that electronic notice
shall constitute a writing) of the Applicable Margin and the Applicable
Revolving Commitment Fee Percentage in effect from such date.
"APPLICABLE RESERVE REQUIREMENT" means, at any time, for any
Eurodollar Rate Loan, the maximum rate, expressed as a decimal, at which
reserves (including, without limitation, any basic marginal, special,
supplemental, emergency or other reserves) are required to be maintained for
eurocurrency funding (currently referred to as "Eurocurrency liabilities" in
Regulation D of the Board of Governors of the Federal Reserve System) under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System or other applicable banking regulator. Without limiting the
effect of the foregoing, the Applicable Reserve Requirement shall reflect any
other reserves required to be maintained by such member banks with respect to
(i) any category of liabilities consisting of deposits by reference to which
the applicable Adjusted Eurodollar Rate is to be determined, or (ii) any
category of extensions of credit or other assets consisting of Eurodollar Rate
Loans. A Eurodollar Rate Loan shall be deemed to constitute Eurocurrency
liabilities and as such shall be deemed subject to reserve requirements without
benefits of credit for proration, exceptions or offsets that may be available
from time to time to the applicable Lender. The rate of interest on Eurodollar
Rate Loans shall be adjusted automatically on and as of the effective date of
any change in the Applicable Reserve Requirement.
"ASSET SALE" means a sale, lease or sub-lease (as lessor or
sublessor), assignment, conveyance, transfer or other disposition to, or any
exchange of property with, any Person (other than Holdings, Company or any
Guarantor Subsidiary), in one transaction or a series of transactions, of all
or any part of Holdings' or any of its Subsidiaries' businesses, assets or
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properties of any kind, whether real, personal, or mixed and whether tangible
or intangible, whether now owned or hereafter acquired, including, without
limitation, the Capital Stock of any of Holdings' Subsidiaries, other than
(i) inventory sold or leased in the ordinary course of business of Company and
its Subsidiaries (excluding any such sales by operations or divisions
discontinued or to be discontinued), (ii) Cash Equivalents sold for Cash or
Cash Equivalents in the ordinary course of business of Company and its
Subsidiaries, (iii) the sale or discount without recourse of accounts
receivable only in connection with the compromise thereof or the assignment of
past-due accounts receivable for collection, and (iv) sales of other assets for
aggregate consideration of less than $5,000,000 with respect to any transaction
or series of related transactions, provided, all sales pursuant to clause (iv)
during any Fiscal Year do not exceed $10,000,000 in the aggregate.
"ASSIGNMENT AGREEMENT" means an Assignment and Assumption
Agreement in the form of Exhibit E, with such amendments or modifications as
may be approved by Administrative Agent.
"AUTHORIZED OFFICER" means, as applied to any Person, any
individual holding the position of chairman of the board (if an officer), chief
executive officer, president or one of its vice presidents (or the equivalent
thereof), and such Person's chief financial officer, controller or treasurer.
"BANK OF AMERICA" as defined in the preamble hereto.
"BANKRUPTCY CODE" means Title 11 of the United States Code
entitled "Bankruptcy," as now and hereafter in effect, or any successor
statute.
"BASE RATE" means, for any day, a rate per annum equal to the
greater of (i) the Prime Rate in effect on such day and (ii) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective on the effective day of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"BASE RATE LOAN" means a Loan bearing interest at a rate
determined by reference to the Base Rate.
"BENEFICIARY" means each Agent, Issuing Bank, Lender and Lender
Counterparty.
"BUDGETED AMOUNT" as defined in Section 6.8(c).
"BUSINESS DAY" means any day excluding (i) Saturday, Sunday and
any day which is a legal holiday under the laws of the State of Ohio or is a
day on which banking institutions located in such state are authorized or
required by law or other governmental action to close and (ii) solely with
respect to all notices, determinations, fundings and payments in connection
with the Adjusted Eurodollar Rate or any Eurodollar Rate Loans, also any day
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which is not a day for trading by and between banks in Dollar deposits in the
London interbank market.
"CAPITAL LEASE" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"CAPITAL STOCK" means any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than
a corporation), including, without limitation, partnership interests and
membership interests, and any and all warrants, rights or options to purchase
or other arrangements or rights to acquire any of the foregoing.
"CASH" means money, currency or a credit balance in any demand or
Deposit Account.
"CASH EQUIVALENTS" means, as at any date of determination,
(i) marketable securities (A) issued or directly and unconditionally guaranteed
as to interest and principal by the United States of America or (B) issued by
any agency of the United States of America the obligations of which are backed
by the full faith and credit of the United States of America, in each case
maturing within one year after such date; (ii) marketable direct obligations
issued by any state of the United States of America or the District of Columbia
or any political subdivision or instrumentality thereof, in each case maturing
within one year after such date and having, at the time of the acquisition
thereof, a rating of at least A-1 from S&P or at least P-1 from Xxxxx'x;
(iii) commercial paper maturing no more than one year from the date of creation
thereof and having, at the time of the acquisition thereof, a rating of at
least A-1 from S&P or at least P-1 from Xxxxx'x; (iv) certificates of deposit,
time deposits, eurodollar time deposits, overnight bank deposits or bankers'
acceptances maturing within one year after such date and issued or accepted by,
and money market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of America or
any state thereof or the District of Columbia that has combined capital and
surplus and undivided profits of not less than $500,000,000; (v) fully
collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (i) or (ii) above and entered into with any
commercial bank satisfying the requirements of clause (iv) above; (vi) solely
in respect of the ordinary course cash management activities of the Foreign
Subsidiaries, equivalents of the investments described in clauses (i) and (ii)
above to the extent guaranteed by the United Kingdom or the European Union and
equivalents of the investments described in clause (iv) above issued, accepted
or offered by (a) the local office of any commercial bank meeting the
requirements of clause (iv) above in the jurisdiction of organization of the
applicable Foreign Subsidiary or (b) the local office of any commercial bank
organized under the laws of the jurisdiction of organization of the applicable
Foreign Subsidiary which commercial bank (1) has combined capital and surplus
and undivided profits of not less than $1,000,000,000 and (2) a long-term
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rating for Dollar-denominated obligations of at least A-1 from S&P or the
equivalent rating from Xxxxx'x; and (vii) shares of any money market mutual
fund that (a) complies with the criteria set forth in Securities and Exchange
Commission Rule 2a-7 under the Investment Company Act of 1940, (b) has net
assets of not less than $500,000,000, and (c) has the highest rating obtainable
from either S&P or Xxxxx'x.
"CERTIFICATE RE NON-BANK STATUS" means a certificate substantially
in the form of Exhibit F.
"CHANGE OF CONTROL" means:
(I) at any time, (i) Holdings shall cease to beneficially own
and control 100% on a fully-diluted basis of the outstanding economic and
voting interest in the Capital Stock of Company; or (ii) any "change of
control" or similar event under the Senior Subordinated Note Documents shall
occur;
(II) prior to an IPO, at least 51% on a fully-diluted basis of the
outstanding voting power of the Voting Stock of Holdings shall cease to be
beneficially owned and controlled by one or more of the Sponsors; and
(III) following an IPO, (i) the Sponsors shall fail to own, or to
have the power to vote or direct the voting of, Voting Stock of Holdings
representing more than 35% of the voting power of the total outstanding Voting
Stock of Holdings; (ii) any person or "group" (within the meaning of Rules 13d-
3 and 13d-5 under the Exchange Act) other than one or more of the Sponsors (A)
shall beneficially own a percentage of the economic interests in the Voting
Stock of Holdings on a fully-diluted basis that is greater than the percentage
of the economic interests in the Voting Stock of Holdings on a fully-diluted
basis then held by the Sponsors, taken together, or (B) shall have obtained the
power (whether or not exercised) to elect a majority of the members of the
board of directors (or similar governing body) of Holdings; or (iii) the
majority of the seats (other than vacant seats) on the board of directors (or
similar governing body) of Holdings cease to be occupied by Persons who either
(a) were members of the board of directors of Holdings on the Second Amendment
Effective Date or (b) were either (x) nominated for election by the board of
directors of Holdings, a majority of whom were directors on the Second
Amendment Effective Date or whose election or nomination for election was
previously approved by a majority of such directors or (y) designated or
appointed by the Sponsors;
"CLASS" means (i) with respect to Lenders, each of the following
classes of Lenders: (a) Lenders having Term Loan Exposure, (b) Lenders having
Revolving Exposure (including Swing Line Lender), and (c) Lenders having
Incremental Term Loan Exposure, (ii) with respect to Loans, each of the
following classes of Loans: (a) the Term Loan, (b) Revolving Loans and (c)
Incremental Term Loans, and (iii) with respect to Commitments, each of the
following classes of Commitments: (a) Term Loan Commitments and (b) Revolving
Commitments.
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"CO-DOCUMENTATION AGENTS" as defined in the preamble hereto.
"CO-SYNDICATION AGENTS" as defined in the preamble hereto.
"COLLATERAL" means, collectively, all of the real, personal and
mixed property (including Capital Stock) whether now owned or hereafter
acquired in which Liens are purported to be granted pursuant to the Collateral
Documents as security for the Obligations.
"COLLATERAL AGENT" as defined in the preamble hereto.
"COLLATERAL DOCUMENTS" means the Pledge and Security Agreement,
the Mortgages, the Mortgage Modifications, the Landlord's Consent, Estoppel
Certificate and Amendments, if any, the Reaffirmation and Counterpart Agreement
and all other instruments, documents and agreements delivered by any Credit
Party pursuant to this Agreement or any of the other Credit Documents in order
to grant to Collateral Agent, for the benefit of Lenders, a Lien on any real,
personal or mixed property of that Credit Party as security for the
Obligations.
"COLLATERAL QUESTIONNAIRE" means a certificate in form
satisfactory to the Collateral Agent that provides information with respect to
the personal or mixed property of each Credit Party.
"COMPANY" as defined in the preamble hereto.
"COMMITMENT" means any Revolving Commitment or Term Loan
Commitment.
"COMMITMENT PERIOD" means the Revolving Commitment Period.
"COMMITMENT TERMINATION DATE" means the Revolving Commitment
Termination Date.
"COMPLIANCE CERTIFICATE" means a Compliance Certificate
substantially in the form of Exhibit C-1.
"CONSOLIDATED ADJUSTED EBITDA" means, for any period, an amount
determined for Holdings and its Subsidiaries on a consolidated basis equal to
the sum, without duplication, of the amounts for such period of
(i) Consolidated Net Income, plus (ii) to the extent reducing Consolidated Net
Income, (a) Consolidated Interest Expense, (b) provisions for taxes based on
income, (c) total depreciation expense, (d) total amortization expense,
(e) other non-Cash items, including (I) any non-cash losses with respect to
hedging obligations and with respect to other derivative instruments including
any Currency Agreement, Interest Rate Agreement or Financial Hedge Agreement,
accounted for and recorded pursuant to Statement No. 133 of the Financial
Accounting Standards Board (Accounting for Derivative Instruments and Hedging
-10-
Activities), (II) any non-cash compensation charges arising out of the grant of
stock, stock options or other equity-based awards and (III) any non-cash
unrealized losses on Investments, in each case in this clause (ii)(e),
excluding any such non-Cash item to the extent that it represents an accrual or
reserve for potential Cash items in any future period or amortization of a
prepaid Cash item that was paid in a prior period, (f) Transaction Costs
payable in Cash by Holdings and Company with respect to such period, and
(g) Original Transaction Costs and Xxxxxx Acquisition Transaction Costs payable
in Cash by Holdings and Company with respect to such period, minus
(iii) non-Cash items increasing Consolidated Net Income for such period,
including (I) any non-cash gains with respect to hedging obligations and with
respect to other derivative instruments including any Currency Agreement,
Interest Rate Agreement or Financial Hedge Agreement, accounted for and
recorded pursuant to Statement No. 133 of the Financial Accounting Standards
Board (Accounting for Derivative Instruments and Hedging Activities) and (II)
any non-cash unrealized gains on Investments, in each case in this clause
(iii), excluding any such non-Cash item to the extent it represents the
reversal of an accrual or reserve for potential Cash item in any prior period.
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the
aggregate of all expenditures of Holdings and its Subsidiaries during such
period determined on a consolidated basis that, in accordance with GAAP, are
included in "purchase of property and equipment" or similar items reflected in
the consolidated statement of cash flows of Holdings and its Subsidiaries,
other than any amount of such expenditures that constitute Permitted
Acquisition Expenses or the permitted application of Net Insurance/Condemnation
Proceeds in accordance with Section 2.16(b).
"CONSOLIDATED CASH INTEREST EXPENSE" means, for any period,
Consolidated Interest Expense for such period, excluding any amount not payable
in Cash.
"CONSOLIDATED CURRENT ASSETS" means, as at any date of
determination, the total assets of Holdings and its Subsidiaries on a
consolidated basis that may properly be classified as current assets in
conformity with GAAP, excluding Cash and Cash Equivalents.
"CONSOLIDATED CURRENT LIABILITIES" means, as at any date of
determination, the total liabilities of Holdings and its Subsidiaries on a
consolidated basis that may properly be classified as current liabilities in
conformity with GAAP, excluding the current portion of long term debt.
"CONSOLIDATED EXCESS CASH FLOW" means, for any period, an amount
(if positive) equal to: (i) the sum, without duplication, of the amounts for
such period of (a) Consolidated Adjusted EBITDA, plus (b) the Consolidated
Working Capital Adjustment, minus (ii) the sum, without duplication, of the
amounts for such period of (a) voluntary and scheduled repayments of
Consolidated Total Debt (excluding repayments of Revolving Loans or Swing Line
Loans except to the extent the Revolving Commitments are permanently reduced in
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connection with such repayments), (b)(x) Consolidated Capital Expenditures and
(y) Permitted Acquisition Expenses (excluding any Permitted Acquisition
Expenses paid in respect of Cash or Cash Equivalents of an acquired Person), in
each of cases (x) and (y) except to the extent financed with the proceeds of
Additional Sponsor Equity, other financings or Asset Sales, (c) Consolidated
Cash Interest Expense, (d) provisions for current taxes based on income of
Holdings and its Subsidiaries and payable in Cash with respect to such period,
(e) Transaction Costs payable in Cash by Holdings and Company with respect to
such period, and (f) Original Transaction Costs and Xxxxxx Acquisition
Transaction Costs payable in Cash by Holdings and Company with respect to such
period.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, total
interest expense (including that portion attributable to Capital Leases in
accordance with GAAP and capitalized interest) of Holdings and its Subsidiaries
on a consolidated basis with respect to all outstanding Indebtedness of
Holdings and its Subsidiaries, including all commissions, discounts and other
fees and charges owed with respect to letters of credit and net costs under
Interest Rate Agreements, but excluding, however, any amounts referred to in
Section 2.13(c) payable on or before the Second Amendment Effective Date.
"CONSOLIDATED NET INCOME" means, for any period, (i) the net
income (or loss) of Holdings and its Subsidiaries on a consolidated basis for
such period taken as a single accounting period determined in conformity with
GAAP, minus (ii) (a) the income (or loss) of any Person (other than a
Subsidiary of Holdings) in which any other Person (other than Holdings or any
of its Subsidiaries) has a joint interest, except to the extent of the amount
of dividends or other distributions actually paid to Holdings or any of its
Subsidiaries by such Person during such period, (b) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary of Holdings or is
merged into or consolidated with Holdings or any of its Subsidiaries or that
Person's assets are acquired by Holdings or any of its Subsidiaries, (c) the
income of any Subsidiary of Holdings to the extent that the declaration or
payment of dividends or similar distributions by that Subsidiary of that income
is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary, (d) any after-tax gains or losses
attributable to Asset Sales or returned surplus assets of any Pension Plan, and
(e) (to the extent not included in clauses (a) through (d) above) any non-Cash
net extraordinary gains or non-Cash net extraordinary losses.
"CONSOLIDATED TOTAL DEBT" means, as at any date of determination,
the aggregate stated balance sheet amount of all Indebtedness of Holdings and
its Subsidiaries determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED WORKING CAPITAL" means, as at any date of
determination, the excess of Consolidated Current Assets over Consolidated
Current Liabilities.
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"CONSOLIDATED WORKING CAPITAL ADJUSTMENT" means, for any period,
the amount (which may be a negative number) of the following, without
duplication, (i) Consolidated Working Capital as of the beginning of such
period, minus (ii) Consolidated Working Capital as of the end of such period,
excluding from such calculation the Net Current Assets of any Subsidiary
acquired in a Permitted Acquisition during such period, determined at the time
of such acquisition.
"CONTRACTUAL OBLIGATION" means, as applied to any Person, any
provision of any Security issued by that Person or of any indenture, mortgage,
deed of trust, contract, written undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound
or to which it or any of its properties is subject.
"CONTRIBUTING GUARANTORS" as defined in Section 7.2.
"CONVERSION/CONTINUATION DATE" means the effective date of a
continuation or conversion, as the case may be, as set forth in the applicable
Conversion/Continuation Notice.
"CONVERSION/CONTINUATION NOTICE" means a Conversion/Continuation
Notice substantially in the form of Exhibit A-2.
"COUNTERPART AGREEMENT" means a Counterpart Agreement
substantially in the form of Exhibit H delivered by a Credit Party pursuant to
Section 5.10.
"CREDIT DATE" means the date of a Credit Extension.
"CREDIT DOCUMENT" means any of this Agreement (or, solely for the
purposes of historical conditions set forth in Section 3.1, the Original
Agreement), the Amendment, the Reaffirmation and Counterpart Agreement, the
Notes, if any, the Collateral Documents, any documents or certificates executed
by Company in favor of any Issuing Bank relating to Letters of Credit, any
Incremental Term Loan Notice, any Incremental Revolving Notice and all other
documents, instruments or agreements executed and delivered by a Credit Party
for the benefit of any Agent, Issuing Bank or any Lender in connection herewith
or therewith.
"CREDIT EXTENSION" means the making of a Loan or the issuing of a
Letter of Credit.
"CREDIT PARTY" means Company, the Guarantors and each other Person
(other than any Agent, any Issuing Bank or any Lender or any other
representative thereof) from time to time party to a Credit Document.
"CURE AMOUNT" as defined in Section 8.2.
"CURE RIGHT" as defined in Section 8.2.
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"CURRENCY AGREEMENT" means any foreign exchange contract, currency
swap agreement, futures contract, option contract, synthetic cap or other
similar agreement or arrangement, each of which is for the purpose of hedging
the foreign currency risk associated with Holdings' and its Subsidiaries'
operations and not for speculative purposes.
"DBTCA" as defined in the preamble hereto.
"DEFAULT" means a condition or event that, after notice or lapse
of time or both, would constitute an Event of Default.
"DEFAULT EXCESS" means, with respect to any Defaulting Lender, the
excess, if any, of such Defaulting Lender's Pro Rata Share of the aggregate
outstanding principal amount of Loans of all Lenders (calculated as if all
Defaulting Lenders (other than such Defaulting Lender) had funded all of their
respective Defaulted Loans) over the aggregate outstanding principal amount of
all Loans of such Defaulting Lender.
"DEFAULT PERIOD" means, with respect to any Defaulting Lender, the
period commencing on the date of the applicable Funding Default and ending on
the earliest of the following dates: (i) the date on which all Commitments are
cancelled or terminated and/or the Obligations are declared or become
immediately due and payable, (ii) the date on which (a) the Default Excess with
respect to such Defaulting Lender shall have been reduced to zero (whether by
the funding by such Defaulting Lender of any Defaulted Loans of such Defaulting
Lender or by the non-pro rata application of any voluntary or mandatory
prepayments of the Loans in accordance with the terms of Section 2.15 or
Section 2.16 or by a combination thereof) and (b) such Defaulting Lender
shall have delivered to Company and Administrative Agent a written
reaffirmation of its intention to honor its obligations hereunder with respect
to its Commitments, and (iii) the date on which Company, Administrative Agent
and Requisite Lenders waive all Funding Defaults of such Defaulting Lender in
writing.
"DEFAULTING LENDER" as defined in Section 2.24.
"DEFAULTED LOAN" as defined in Section 2.24.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"DOLLARS" and the sign "$" mean the lawful money of the United
States of America.
"DOMESTIC SUBSIDIARY" means any Subsidiary organized under the
laws of the United States of America, any State thereof or the District of
Columbia, other than any such Subsidiary that has no material assets other than
Capital Stock of or other Investments in one or more Foreign Subsidiaries.
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"ELIGIBLE ASSIGNEE" means (i) any Lender, any Affiliate of any
Lender and any Related Fund (any two or more Related Funds being treated as a
single Eligible Assignee for all purposes hereof), and (ii) any commercial
bank, insurance company, investment or mutual fund or other entity that is an
"accredited investor" (as defined in Regulation D under the Securities Act) and
which extends credit or buys loans as one of its businesses; provided, no
Affiliate of Holdings shall be an Eligible Assignee.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" (as
defined in Section 3(3) of ERISA) which is or was sponsored, maintained or
contributed to by, or required to be contributed by, Holdings, any of its
Subsidiaries or any of their respective ERISA Affiliates.
"EMPLOYEE LEVERAGE PROGRAM" means the Holdings 2002 Stock Option
Plan, the Holdings Key Employee Equity Investment Plan and the agreements
relating to the investments by members of management of Holdings and its
subsidiaries in XX Xxxxx Acquisition Corporation, including the contribution
and subscription agreements, management stockholders agreement and promissory
notes.
"ENVIRONMENTAL CLAIM" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise), by any governmental authority or
any other Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law; (ii) in connection with any
Hazardous Material or any actual or alleged Hazardous Materials Activity; or
(iii) in connection with any actual or alleged damage, injury, threat or harm
to health, safety, natural resources or the environment.
"ENVIRONMENTAL LAWS" means any and all current or future foreign
or domestic, federal or state (or any subdivision of either of them), statutes,
ordinances, orders, rules, regulations, judgments, Governmental Authorizations,
or any other requirements of Governmental Authorities relating to
(i) environmental matters, including those relating to any Hazardous Materials
Activity; (ii) the generation, use, storage, transportation or disposal of
Hazardous Materials; or (iii) occupational safety and health, industrial
hygiene, land use or the protection of human, plant or animal health in any
manner applicable to Holdings or any of its Subsidiaries or any Facility.
"EQUITY FINANCING" means the issuance for Cash by Holdings to
Sponsors and/or other investors acceptable to Co-Syndication Agents of not less
than $245,000,000 of common equity in connection with the 2002 Merger.
"EQUITY PROCEEDS" as defined in Section 6.8(d).
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any successor thereto.
"ERISA AFFILIATE" means, as applied to any Person, (i) any
corporation which is a member of a controlled group of corporations within the
meaning of Section 414(b) of the Internal Revenue Code of which that Person is
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a member; (ii) any trade or business (whether or not incorporated) which is a
member of a group of trades or businesses under common control within the
meaning of Section 414(c) of the Internal Revenue Code of which that Person is
a member; and (iii) any member of an affiliated service group within the
meaning of Section 414(m) or (o) of the Internal Revenue Code of which that
Person, any corporation described in clause (i) above or any trade or business
described in clause (ii) above is a member. Any former ERISA Affiliate of
Holdings or any of its Subsidiaries shall continue to be considered an ERISA
Affiliate of Holdings or any such Subsidiary within the meaning of this
definition with respect to the period such entity was an ERISA Affiliate of
Holdings or such Subsidiary and with respect to liabilities arising after such
period for which Holdings or such Subsidiary could be liable under the Internal
Revenue Code or ERISA.
"ERISA EVENT" means (i) a "reportable event" within the meaning of
Section 4043 of ERISA and the regulations issued thereunder with respect to any
Pension Plan (excluding those for which the provision for 30-day notice to the
PBGC has been waived by regulation); (ii) the failure to meet the minimum
funding standard of Section 412 of the Internal Revenue Code with respect to
any Pension Plan (whether or not waived in accordance with Section 412(d) of
the Internal Revenue Code) or the failure to make by its due date a required
installment under Section 412(m) of the Internal Revenue Code with respect to
any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension
Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate
such plan in a distress termination described in Section 4041(c) of ERISA;
(iv) the withdrawal by Holdings, any of its Subsidiaries or any of their
respective ERISA Affiliates from any Pension Plan with two or more contributing
sponsors or the termination of any such Pension Plan resulting in liability to
Holdings, any of its Subsidiaries or any of their respective Affiliates
pursuant to Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of
proceedings to terminate any Pension Plan, or the occurrence of any event or
condition which could reasonably be likely to constitute grounds under ERISA
for the termination of, or the appointment of a trustee to administer, any
Pension Plan; (vi) the imposition of liability on Holdings, any of its
Subsidiaries or any of their respective ERISA Affiliates pursuant to Section
4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of
ERISA; (vii) the withdrawal of Holdings, any of its Subsidiaries or any of
their respective ERISA Affiliates in a complete or partial withdrawal (within
the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if
there is any potential liability therefore, or the receipt by Holdings, any of
its Subsidiaries or any of their respective ERISA Affiliates of notice from any
Multiemployer Plan that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA, or that it intends to terminate or has
terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of an
act or omission which could reasonably be expected to give rise to the
imposition on Holdings, any of its Subsidiaries or any of their respective
ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43
of the Internal Revenue Code or under Section 409, Section 502(c), (i) or (l),
or Section 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the
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assertion of a material claim (other than routine claims for benefits) against
any Employee Benefit Plan other than a Multiemployer Plan or the assets
thereof, or against Holdings, any of its Subsidiaries or any of their
respective ERISA Affiliates in connection with any Employee Benefit Plan;
(x) receipt from the Internal Revenue Service of notice of the failure of any
Pension Plan (or any other Employee Benefit Plan intended to be qualified under
Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of
the Internal Revenue Code, or the failure of any trust forming part of any
Pension Plan to qualify for exemption from taxation under Section 501(a) of the
Internal Revenue Code; or (xi) the imposition of a Lien pursuant to Section
401(a)(29) or 412(n) of the Internal Revenue Code or pursuant to ERISA with
respect to any Pension Plan.
"EURODOLLAR RATE LOAN" means a Loan bearing interest at a rate
determined by reference to the Adjusted Eurodollar Rate.
"EVENT OF DEFAULT" means each of the conditions or events set
forth in Section 8.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"EXCLUDED FOREIGN SUBSIDIARIES" means one or more Foreign
Subsidiaries which, together with all their Subsidiaries, have either assets,
combined revenues from operations or combined income from continuing operations
that do not exceed 5% of the combined assets, combined revenues from operations
or combined income from continuing operations of Holdings and its Subsidiaries,
taken as a whole, for any Fiscal Year.
"EXCLUDED TAX" means, with respect to Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any Obligation, (i) any Tax imposed as a result of a connection
or former connection between any Lender and the jurisdiction imposing such tax,
including without limitation, any connection arising from such Lender being or
having been a citizen, domiciliary, or resident of such jurisdiction, being
organized in such jurisdiction, or having had a permanent establishment or
fixed place of business therein, but excluding any such connection arising from
the activities of such Lender pursuant to or in respect of this Agreement or
any other Credit Document, including executing, delivering or performing its
obligations or receiving a payment under or enforcing this agreement or any
other loan document, and (ii) in the case of a U.S. Lender or Non-U.S. Lender
(other than a Replacement Lender that is an assignee pursuant to a request by
Company under Section 2.25), any withholding tax that (a) is imposed on amounts
payable to any such Non-U.S. Lender at the time such Non-U.S. Lender becomes a
party to this Agreement or designates a new lending office, or (b) is
attributable to such U.S. Lender or Non-U.S. Lender's failure to comply with
Section 2.22(c), except to the extent that such U.S. Lender or Non-U.S. Lender
(or its assignor, if any) was entitled, at the time of assignment or
designation of a new lending office, as the case may be, to receive
additional amounts from Company with respect to such withholding tax pursuant
to Section 2.22(c).
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"EXISTING AGREEMENT" as defined in the recitals hereto.
"EXISTING LETTERS OF CREDIT" means the letters of credit issued
for the account of Company under the Existing Agreement that are outstanding on
the Second Amendment Effective Date and identified as Existing Letters of
Credit on Schedule 1.1(b) attached hereto.
"FACILITY" means any real property (including all buildings,
fixtures or other improvements located thereon) now, hereafter or heretofore
owned, leased, operated or used by Holdings or any of its Subsidiaries or any
of their respective predecessors or Affiliates.
"FAIR SHARE" as defined in Section 7.2.
"FAIR SHARE CONTRIBUTION AMOUNT" as defined in Section 7.2.
"FAIR SHARE SHORTFALL" as defined in Section 7.2.
"FEDERAL FUNDS EFFECTIVE RATE" means for any day, the rate per
annum (expressed, as a decimal, rounded upwards, if necessary, to the next
higher 1/100 of 1%) 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, (i) if such
day is not a Business Day, the Federal Funds 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 (ii) if no such rate is so published on
such next succeeding Business Day, the Federal Funds Rate for such day shall be
the average rate charged to Administrative Agent on such day on such
transactions as determined by Administrative Agent.
"FINANCIAL HEDGE AGREEMENT" means an Interest Rate Agreement or a
Currency Agreement entered into with a Lender Counterparty in order to satisfy
the requirements of this Agreement or otherwise in the ordinary course of
business of Company or any of its Subsidiaries.
"FINANCIAL OFFICER CERTIFICATION" means, with respect to the
financial statements for which such certification is required, the
certification of the chief financial officer of Holdings that such financial
statements fairly present, in all material respects, the financial condition of
Holdings and its Subsidiaries as at the dates indicated and the results of
their operations and their cash flows for the periods indicated, subject to
changes resulting from audit and normal year-end adjustments.
"FINANCIAL PLAN" as defined in Section 5.1 (h).
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"FIRST PRIORITY" means, with respect to any Lien purported to be
created in any Collateral pursuant to any Collateral Document, that such Lien
is the only Lien to which such Collateral is subject, other than Permitted
Liens described in clauses (a) through (n) of Section 6.2.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of Company, which shall be a
period of 52 or 53 weeks, as applicable, ending on the Saturday nearest the end
of each calendar year.
"FLOOD HAZARD PROPERTY" means any Real Estate Asset subject to a
mortgage in favor of Collateral Agent, for the benefit of Lenders, and located
in an area designated by the Federal Emergency Management Agency as having
special flood or mud slide hazards.
"FOREIGN SUBSIDIARY" means any Subsidiary that is not a Domestic
Subsidiary.
"FUNDING DEFAULT" as defined in Section 2.24.
"FUNDING GUARANTORS" as defined in Section 7.2.
"FUNDING NOTICE" means a notice substantially in the form of
Exhibit A-1.
"GAAP" means, subject to the limitations on the application
thereof set forth in Xxxxxxx 0.0, Xxxxxx Xxxxxx generally accepted accounting
principles.
"GOVERNMENTAL ACTS" means any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
Governmental Authority.
"GOVERNMENTAL AUTHORITY" means any federal, state, municipal,
national or other government, governmental department, commission, board,
bureau, court, agency or instrumentality or political subdivision thereof or
any entity or officer exercising executive, legislative, judicial, regulatory
or administrative functions of or pertaining to any government or any court, in
each case whether associated with a state of the United States, the United
States, or a foreign entity or government.
"GOVERNMENTAL AUTHORIZATION" means any permit, license,
authorization, plan, directive, consent order or consent decree of or from any
Governmental Authority.
"GRANTOR" as defined in the Pledge and Security Agreement.
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"GSCP" as defined in the preamble hereto.
"GUARANTEED OBLIGATIONS" as defined in Section 7.1.
"GUARANTOR" means each of Holdings and each Domestic Subsidiary of
Holdings (other than Company) from time to time.
"GUARANTOR SUBSIDIARY" means each Guarantor other than Holdings.
"GUARANTY" means the guaranty of each Guarantor set forth in
Section 7.
"HAZARDOUS MATERIALS" means any chemical, material or substance,
exposure to which is prohibited, limited or regulated by any Governmental
Authority or which may or could pose a hazard to the health and safety of the
owners, occupants or any Persons in the vicinity of any Facility or to the
indoor or outdoor environment.
"HAZARDOUS MATERIALS ACTIVITY" means any past, current, proposed
or threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous
Materials, and any corrective action or response action with respect to any of
the foregoing.
"HIGHEST LAWFUL RATE" means the maximum lawful interest rate, if
any, that at any time or from time to time may be contracted for, charged, or
received under the laws applicable to any Lender which are presently in effect
or, to the extent allowed by law, under such applicable laws which may
hereafter be in effect and which allow a higher maximum nonusurious interest
rate than applicable laws now allow.
"HISTORICAL FINANCIAL STATEMENTS" means as of the Second Amendment
Effective Date, (i) the audited financial statements of Holdings and its
Subsidiaries, for the immediately preceding three Fiscal Years, consisting of
balance sheets and the related consolidated statements of income, stockholders'
equity and cash flows for such Fiscal Years, and (ii) the unaudited financial
statements of Holdings and its Subsidiaries as at the most recently ended
Fiscal Quarter, consisting of a balance sheet and the related consolidated
statements of income, stockholders' equity and cash flows for the three-, six-
or nine-month period, as applicable, ending on such date, and, in the case of
clauses (i) and (ii), certified by the Chief Financial Officer of Holdings that
they fairly present, in all material respects, the financial condition of
Holdings and its Subsidiaries as at the dates indicated and the results of
their operations and their cash flows for the periods indicated, subject to
changes resulting from audit and normal year-end adjustments.
"HISTORICAL QUARTER" as defined in Section 6.8(d)(iv) .
"HOLDINGS" as defined in the preamble hereto.
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"INCREASED-COST LENDERS" as defined in Section 2.25.
"INCREMENTAL REVOLVING CLOSING DATE" as defined in Section 2.4.
"INCREMENTAL REVOLVING COMMITMENTS" as defined in Section 2.4.
"INCREMENTAL REVOLVING LENDER" as defined in Section 2.4.
"INCREMENTAL REVOLVING LOAN" as defined in Section 2.4
"INCREMENTAL REVOLVING NOTICE" as defined in Section 2.4.
"INCREMENTAL TERM LOAN" means any Indebtedness of Company in
respect of borrowed money ranking pari passu with Company's Obligations under
this Agreement and incurred by Company pursuant to Section 2.2.
"INCREMENTAL TERM LOAN CLOSING DATE" means any Business Day
designated as such in an Incremental Term Loan Notice.
"INCREMENTAL TERM LOAN EXPOSURE" means, with respect to any
Lender, as of any date of determination, the outstanding principal amount of
the Incremental Term Loans of such Lender.
"INCREMENTAL TERM LOAN INSTALLMENT DATE" as defined in Section
2.14(b).
"INCREMENTAL TERM LOAN LENDER" means any Lender or any financial
institution, in each case, that is a signatory to an Incremental Term Loan
Notice in the capacity of an Incremental Term Loan Lender.
"INCREMENTAL TERM LOAN MATURITY DATE" means, with respect to any
Incremental Term Loan to be made pursuant to any Incremental Term Loan Notice,
the maturity date specified in such Incremental Term Loan Notice, which date
shall be on or after the Term Loan Maturity Date.
"INCREMENTAL TERM LOAN NOTE" means a promissory note in the form
of Exhibit B-2, as it may be amended, supplemented or otherwise modified from
time to time.
"INCREMENTAL TERM LOAN NOTICE" means an Incremental Term Loan
Notice substantially in the form of Exhibit A-4.
"INDEBTEDNESS", as applied to any Person, means, without
duplication, (i) all indebtedness for borrowed money; (ii) that portion of
obligations with respect to Capital Leases that is properly classified as a
liability on a balance sheet in conformity with GAAP; (iii) notes payable and
drafts accepted representing extensions of credit whether or not representing
obligations for borrowed money; (iv) any obligation owed for all or any part of
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the deferred purchase price of property or services (excluding any such
obligations incurred under ERISA or any purchase price adjustment under Section
2.9 of the Xxxxxx Merger Agreement or Section 2.8 of the Xxxx Merger
Agreement), which purchase price is (a) due more than six months from the date
of incurrence of the obligation in respect thereof or (b) evidenced by a note
or similar written instrument; (v) all indebtedness secured by any Lien on any
property or asset owned or held by that Person regardless of whether the
indebtedness secured thereby shall have been assumed by that Person or is
nonrecourse to the credit of that Person; (vi) the face amount of any letter of
credit issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings; (vii) the direct or indirect
guaranty, endorsement (otherwise than for collection or deposit in the ordinary
course of business of Company and its Subsidiaries), co-making, discounting
with recourse or sale with recourse by such Person of the obligation of
another; (viii) any obligation of such Person the primary purpose or intent of
which is to provide assurance to an obligee that the obligation of the obligor
thereof will be paid or discharged, or any agreement relating thereto will be
complied with, or the holders thereof will be protected (in whole or in part)
against loss in respect thereof; and (ix) any liability of such Person for the
obligation of another through any agreement (contingent or otherwise) (a) to
purchase, repurchase or otherwise acquire such obligation or any security
therefor, or to provide funds for the payment or discharge of such obligation
(whether in the form of loans, advances, stock purchases, capital contributions
or otherwise) or (b) to maintain the solvency or any balance sheet item, level
of income or financial condition of another if, in the case of any agreement
described under subclauses (a) or (b) of this clause (ix), the primary purpose
or intent thereof is as described in clause (viii) above; and (x) net
obligations of such Person to a counterparty in respect of any exchange traded
or over the counter derivative transaction, including, without limitation,
Financial Hedge Agreements, whether entered into for hedging or speculative
purposes; provided, in no event shall obligations under any Financial Hedge
Agreements be deemed "Indebtedness" for any purpose under Section 6.8.
"INDEMNIFIED LIABILITIES" means, collectively, any and all
liabilities, obligations, losses, damages, penalties, claims (including
Environmental Claims), actions, judgments, suits, costs (including the costs of
any investigation, study, sampling, testing, abatement, cleanup, removal,
remediation or other response action necessary to remove, remediate, clean up
or xxxxx any Hazardous Materials Activity), fees, expenses and disbursements of
any kind or nature whatsoever (including the reasonable fees and disbursements
of counsel for Indemnitees in connection with any investigative, administrative
or judicial proceeding commenced or threatened by any Person, whether or not
any such Indemnitee shall be designated as a party or a potential party
thereto, and any fees or expenses incurred by Indemnitees in enforcing this
indemnity), whether direct, indirect or consequential and whether based on any
federal, state or foreign laws, statutes, rules or regulations (including
securities and commercial laws, statutes, rules or regulations and
Environmental Laws), on common law or equitable cause or on contract or
otherwise, that may be imposed on, incurred by, or asserted against any such
Indemnitee, in any manner relating to or arising out of (i) this Agreement or
the other Credit Documents or the transactions contemplated hereby or thereby
-22-
(including Lenders' agreement to make Credit Extensions or the use or intended
use of the proceeds thereof, any enforcement of any of the Credit Documents
(including any sale of, collection from, or other realization upon any of the
Collateral or the enforcement of the Guaranty) or an Issuing Bank's issuance of
any Letter of Credit or its failure to honor a drawing under any such Letter of
Credit as a result of any Governmental Act); (ii) the statements contained in
the commitment letter delivered by any Lender to Sponsors with respect to the
transactions contemplated by this Agreement; or (iii) any (a) Hazardous
Materials Activity which can reasonably be expected to result in non-compliance
with, or liability under, Environmental Laws, or (b) Environmental Claim
relating to or arising from any past or present activity, operation, land
ownership, or practice of Holdings or any of its Subsidiaries.
"INDEMNITEE" as defined in Section 10.3.
"INTERCOMPANY SUBORDINATION AGREEMENT" means an agreement in the
form of Exhibit L.
"INTEREST COVERAGE RATIO" means the ratio as of the last day of
any Fiscal Quarter of (i) Consolidated Adjusted EBITDA for the four-Fiscal
Quarter period then ended, to (ii) Consolidated Cash Interest Expense for such
four-Fiscal Quarter period.
"INTEREST PAYMENT DATE" means with respect to (i) any Base Rate
Loan, each March 31, June 30, September 30 and December 31 of each year,
commencing on the first such date to occur after the Original Closing Date, and
the final maturity date of such Loan; and (ii) any Eurodollar Rate Loan, the
last day of each Interest Period applicable to such Loan; provided, in the case
of each Interest Period of longer than three months "Interest Payment Date"
shall also include each date that is three months, or an integral multiple
thereof, after the commencement of such Interest Period.
"INTEREST PERIOD" means, in connection with a Eurodollar Rate
Loan, an interest period of one-, two-, three- or six-months, as selected by
Company in the applicable Funding Notice or Conversion/Continuation Notice,
(i) initially, commencing on the Credit Date or Conversion/Continuation Date
thereof, as the case may be; and (ii) thereafter, commencing on the day on
which the immediately preceding Interest Period expires; provided, (a) if an
Interest Period would otherwise expire on a day that is not a Business Day,
such Interest Period shall expire on the next succeeding Business Day unless no
further Business Day occurs in such month, in which case such Interest Period
shall expire on the immediately preceding Business Day; (b) any Interest Period
that begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall, subject to clause (c) of this definition, end on
the last Business Day of a calendar month; (c) no Interest Period with respect
to any portion of any Term Loans shall extend beyond the Term Loan Maturity
Date and (d) no Interest Period with respect to any portion of the Revolving
Loans shall extend beyond the Revolving Commitment Termination Date.
-23-
"INTEREST RATE AGREEMENT" means any interest rate swap agreement
(including any fixed rate or floating rate swap agreement), interest rate cap
agreement, interest rate collar agreement, interest rate hedging agreement or
other similar agreement or arrangement, each of which is for the purpose of
hedging the interest rate exposure associated with Holdings' and its
Subsidiaries' operations and not for speculative purposes.
"INTEREST RATE DETERMINATION DATE" means, with respect to any
Interest Period, the date that is two Business Days prior to the first day of
such Interest Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986,
as amended to the date hereof and from time to time hereafter, and any
successor statute.
"INVESTMENT" means any (i) purchase or other acquisition
(including pursuant to any merger) of the Capital Stock or other Securities of
any Person, or any beneficial interest therein or (ii) loan, advance, capital
contribution to, or any other investment in, any Person (other than the
purchase of current accounts receivable arising in the ordinary course of
business of Company and its Subsidiaries). The amount of any Investment shall
be equal to the sum of (a) the original cost of such Investment, plus (b) the
cost of all additions thereto, minus (c) any cash proceeds from the disposition
of or other cash distributions on such Investment to the extent such proceeds
or distributions do not constitute Consolidated Net Income, without any
adjustments for increases or decreases in value or write-ups, write-downs or
write-offs with respect to such Investment, provided that the amount of any
Investment shall not be less than zero.
"IPO" shall mean the first underwritten public offering by
Holdings of its Capital Stock after the Second Amendment Effective Date
pursuant to a registration statement that has been declared effective by the
United States Securities and Exchange Commission.
"ISSUANCE NOTICE" means an Issuance Notice substantially in the
form of Exhibit A-3.
"ISSUING BANK" shall mean, as the context may require, (a) Fleet
National Bank, solely with respect to Existing Letters of Credit or the roll-
over of such Existing Letters of Credit issued by it, (b) DBTCA (or an
Affiliate thereof), with respect to Letters of Credit issued by it; (c) any
other Lender that may become an Issuing Bank pursuant to Section 2.5(i) with
respect to Letters of Credit issued by such Lender; or (d) collectively, all of
the foregoing; provided however that DBTCA shall have no obligation to issue
commercial Letters of Credit, but DBTCA shall use reasonable efforts to cause
an Affiliate of DBTCA to issue any commercial Letters of Credit.
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"JOINDER AGREEMENT" means an agreement substantially in the form
of Exhibit M.
"JOINT VENTURE" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal form;
provided, in no event shall any Subsidiary of any Person be considered a Joint
Venture to which such Person is a party.
"JPMCB" as defined in the preamble hereto.
"XXXX" means Xxxx Group, Inc., a Delaware corporation.
"XXXX ACQUISITION" as defined in the preamble hereto.
"XXXX ACQUISITION DOCUMENTS" means the Xxxx Merger Agreement and
any other agreements, instruments and other documents delivered in connection
with the Xxxx Acquisition, including, without limitation, any leases in respect
of Material Real Estate Assets.
"XXXX ACQUISITION FINANCING REQUIREMENTS" means the aggregate
amount necessary to pay (i) the Cash portion of the consideration due to
shareholders of Xxxx under the Xxxx Merger Agreement, (ii) the costs of
prepaying, redeeming or purchasing the Indebtedness of Xxxx and its
Subsidiaries to be paid on or prior to the Second Amendment Effective Date and
(iii) Transaction Costs, in each of cases (i), (ii) and (iii) in accordance
with the Xxxx Merger Agreement.
"XXXX MERGER AGREEMENT" as defined in the recitals hereto.
"XXXX SELLERS" means, collectively, sellers listed on the
signature pages to the Xxxx Merger Agreement and Fremont Acquisition Company,
L.L.C., in their capacity as sellers under the Xxxx Merger Agreement.
"XXXXXX" means Xxxxxx Plastics, Inc., an Illinois corporation.
"XXXXXX ACQUISITION" means the acquisition by Company of Xxxxxx
pursuant to the Xxxxxx Merger Agreement.
"XXXXXX ACQUISITION CLOSING DATE" means November 10, 2003.
"XXXXXX ACQUISITION DOCUMENTS" means the Xxxxxx Merger Agreement
and any other agreements, instruments and other documents delivered in
connection with the Xxxxxx Acquisition, including, without limitation, any
leases in respect of Material Real Estate Assets.
"XXXXXX ACQUISITION LEASEHOLD PROPERTY" means each of the Alsip-
Main, IL, Alsip-North, IL, Geddes, NY and Phoenix, AZ properties to be leased
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pursuant to that certain Lease Agreement, to be dated as of the Xxxxxx
Acquisition Closing Date, between BRY-PL (DE) Limited Partnership, a Delaware
limited partnership, as Landlord, and Xxxxxx, as tenant.
"XXXXXX ACQUISITION FINANCING REQUIREMENTS" means the aggregate
amount necessary to pay (i) the Cash portion of the consideration due to
shareholders of Xxxxxx under the Xxxxxx Merger Agreement, (ii) the costs of
prepaying, redeeming or purchasing the Indebtedness of Xxxxxx to be paid on or
prior to the Xxxxxx Acquisition Closing Date and (iii) Xxxxxx Acquisition
Transaction Costs, in each of cases (i), (ii) and (iii) in accordance with the
Xxxxxx Merger Agreement.
"XXXXXX ACQUISITION SENIOR SUBORDINATED NOTES" means Senior
Subordinated Notes in an aggregate principal amount of $85,000,000 issued
pursuant to the Senior Subordinated Notes Indenture, the proceeds of which were
used to finance Xxxxxx Acquisition Financing Requirements.
"XXXXXX ACQUISITION TRANSACTION COSTS" means (a) the write-off of
deferred financing costs capitalized in connection with the entering into the
Original Agreement and (b) the fees, costs and expenses payable by Holdings,
Company or any of Company's Subsidiaries on or before the Xxxxxx Acquisition
Closing Date in connection with the transactions contemplated by the Credit
Documents and the Xxxxxx Merger Agreement, which fees, costs and expenses under
clause (b) hereof shall not exceed $12,000,000.
"XXXXXX MERGER AGREEMENT" means an agreement and plan of merger
dated October 15, 2003 by and among Company, Merger Sub (as defined in the 2003
Credit Agreement), Xxxxxx, all shareholders of Xxxxxx and the other parties
thereto, which provides for the merger of Xxxxxx with and into Merger Sub with
Xxxxxx being the surviving corporation.
"LANDLORD'S CONSENT, ESTOPPEL CERTIFICATE AND AMENDMENT" means (a)
with respect to each Xxxxxx Acquisition Leasehold Property, an agreement
substantially in the form of the draft Landlord's Acknowledgment and Consent,
draft dated November 10, 2003, from BRY-PL (DE) Limited Partnership and (b)
with respect to any other Leasehold Property, an agreement substantially in the
form of Exhibit K, in each of cases (a) and (b) with such amendments or
modifications as may be approved by Collateral Agent.
"LEASEHOLD PROPERTY" means any leasehold interest of any Credit
Party as lessee under any lease of real property.
"LENDER" means each financial institution listed on the signature
pages to the Existing Agreement or to the Amendment as a Lender, any additional
financial institution or Person that becomes or has become a party hereto
pursuant to a New Lender Supplement and any other Person that becomes or has
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become a party hereto pursuant to an Assignment Agreement or a Joinder
Agreement, including any Lender in its capacity as Swing Line Lender or Issuing
Bank.
"LENDER COUNTERPARTY" means each Lender or any Affiliate of a
Lender counterparty to a Financial Hedge Agreement including, without
limitation, each such Affiliate that enters into a Joinder Agreement with the
Collateral Agent.
"LENDER EFFECTIVE DATE" means (i) in the case of each Lender
already a party to the Existing Agreement, the date such Lender became a party
to the Existing Agreement, (ii) in the case of each Lender listed on the
signature pages to the Amendment but not already a party to the Existing
Agreement, the Second Amendment Effective Date, and (iii) in the case of each
other Lender, the effective date of the Assignment Agreement pursuant to which
such Lender became a Lender.
"LETTER OF CREDIT" means a commercial or standby letter of credit
issued or to be issued by an Issuing Bank pursuant to this Agreement.
"LETTER OF CREDIT DISBURSEMENT" means a payment made by an Issuing
Bank pursuant to a Letter of Credit.
"LETTER OF CREDIT EXPOSURE" means the aggregate Letter of Credit
Usage in respect of all Letters of Credit issued by that Lender (net of any
participations by Lenders in such Letters of Credit.
"LETTER OF CREDIT SUBLIMIT" means the lesser of (i) $35,000,000
and (ii) the aggregate unused amount of the Revolving Commitments then in
effect.
"LETTER OF CREDIT USAGE" means, as at any date of determination,
the sum of (i) the maximum aggregate amount which is, or at any time thereafter
may become, available for drawing under all Letters of Credit then outstanding,
and (ii) the aggregate amount of all drawings under Letters of Credit honored
by an Issuing Bank and not theretofore reimbursed by or on behalf of Company.
"LEVERAGE RATIO" means the ratio as of the last day of any Fiscal
Quarter or other date of determination of (i) Consolidated Total Debt as of
such day (net of Cash and Cash Equivalents of Holdings and its Subsidiaries
held in accounts in which Holdings or such Subsidiary has granted a Lien for
the benefit of the Secured Parties pursuant to a control agreement in an amount
not to exceed $15,000,000) to (ii) Consolidated Adjusted EBITDA for the
four-Fiscal Quarter period ending on such date (or if such date of
determination is not the last of a Fiscal Quarter, for the four-Fiscal Quarters
period ending as of the most recently concluded Fiscal Quarter).
"LIEN" means (i) any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any agreement to give
any of the foregoing, any conditional sale or other title retention agreement,
and any lease in the nature thereof) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing
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and (ii) in the case of Securities, any purchase option, call or similar right
of a third party with respect to such Securities.
"LOAN" means a Term Loan, a Swing Line Loan, a Revolving Loan, and
an Incremental Term Loan.
"MARGIN STOCK" as defined in Regulation U of the Board of
Governors of the Federal Reserve System as in effect from time to time.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
and/or material adverse developments with respect to (i) the business,
operations, properties, assets, condition (financial or otherwise) or prospects
of Holdings and its Subsidiaries, taken as a whole; (ii) the ability of the
Credit Parties, taken as a whole, to fully and timely perform the Obligations;
(iii) the legality, validity, binding effect or enforceability of any Credit
Document against the Credit Parties, taken as a whole, or the Collateral; or
(iv) the rights, remedies and benefits available to, or conferred upon, any
Agent, Lender or Secured Party under any Credit Document; provided, however
that for purposes of satisfying the conditions set forth in Sections 3.2 and
3.4 of this Agreement on the Second Amendment Effective Date solely with
respect to the representation given in Section 4.10 of this Agreement,
"Material Adverse Effect" means there shall not have been, since December 31,
2004, any state of facts, circumstance, change, development, effect, condition
or occurrence that, individually or in the aggregate, has a material adverse
change in, or effect on, the financial condition, business, assets, liabilities
or results of operations of Xxxx and its Subsidiaries, taken as a whole;
provided, that the following shall be excluded from this determination: (I)
any state of facts, circumstance, change, development, effect, condition or
occurrence relating to (x) the economy or financial markets in general or (y)
the industries and markets in which Xxxx and its Subsidiaries operate
generally, (II) the entry into, announcement and consummation of the Xxxx
Merger Agreement or all the transactions provided for or contemplated by the
Xxxx Merger Agreement and any actions taken pursuant to and in compliance with
the Xxxx Merger Agreement and (III) changes in GAAP or any constitutional
provision, law, statute, rule, regulation, ordinance, treaty, order, decree,
judgment, decision, certificate, holding, injunction, enforceable at law or in
equity, along with the interpretation and administration thereof by any
federal, state, local or foreign court, arbitral tribunal, administrative
agency or commission or other governmental or other regulatory authority or
agency charged with the interpretation or administration thereof, but in the
case of clauses (I) and (III) above, solely to the extent that such facts,
circumstances, changes, developments, effects, conditions and occurrences do
not specifically relate to or disproportionately affect Xxxx and its
Subsidiaries, taken as a whole.
"MATERIAL REAL ESTATE ASSET" means (i) (a) any fee-owned Real
Estate Asset having a fair market value in excess of $1,000,000 as of the date
of the acquisition thereof and (b) all Leasehold Properties (x) used in the
operation of material production facilities of Company or any of its
Subsidiaries or (y) with respect to which the aggregate rental payments under
the term of the applicable lease exceed $1,000,000 per annum or (ii) any Real
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Estate Asset that the Requisite Lenders have determined is material to the
business, operations, properties, assets, condition (financial or otherwise) or
prospects of Holdings and its Subsidiaries, taken as a whole.
"MOODY'S" means Xxxxx'x Investor Services, Inc.
"MORTGAGE" means a mortgage substantially in the form of
Exhibit J, as it may be amended, supplemented or otherwise modified from time
to time.
"MORTGAGE MODIFICATION" means a modification agreement
substantially in the form of Exhibit P with respect to each Mortgage in effect
on the Second Amendment Effective Date, which will be executed by each Credit
Party that executed a Mortgage on or prior to the Second Amendment Effective
Date.
"MULTIEMPLOYER PLAN" means any Employee Benefit Plan which is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"NAIC" means The National Association of Insurance Commissioners,
and any successor thereto.
"NARRATIVE REPORT" means, with respect to the financial statements
for which such narrative report is required, a narrative report describing the
operations of Holdings and its Subsidiaries in the form prepared for
presentation to senior management thereof for the applicable Fiscal Quarter or
Fiscal Year and for the period from the beginning of the then current Fiscal
Year to the end of such period to which such financial statements relate.
"NET ASSET SALE PROCEEDS" means, with respect to any Asset Sale,
an amount equal to: (i) Cash payments (including any Cash received by way of
deferred payment pursuant to, or by monetization of, a note receivable or
otherwise, but only as and when so received) received by Holdings or any of its
Subsidiaries from such Asset Sale, minus (ii) any bona fide direct costs and
expenses incurred in connection with such Asset Sale, including (a) income or
gains taxes payable by the seller as a result of any gain recognized in
connection with such Asset Sale, (b) payment of the outstanding principal
amount of, premium or penalty, if any, and interest on any Indebtedness (other
than the Loans) that is secured by a Lien on the stock or assets in question
and that is required to be repaid under the terms thereof as a result of such
Asset Sale, (c) a reasonable reserve for any indemnification payments (fixed or
contingent) attributable to seller's indemnities and representations and
warranties to purchaser in respect of such Asset Sale undertaken by Holdings or
any of its Subsidiaries in connection with such Asset Sale, and (d) reasonable
brokerage or selling commissions and fees and expenses of professional advisors
and any title and recordation expenses.
"NET CURRENT ASSETS" means, for any Person as at any date of
determination, the difference (which may be a negative number) between (i) the
total assets of such Person that may properly be classified as current assets
-29-
in conformity with GAAP, excluding Cash and Cash Equivalents, minus (ii) the
total liabilities of such Person that may properly be classified as current
liabilities in conformity with GAAP, excluding the current portion of long term
debt.
"NET INSURANCE/CONDEMNATION PROCEEDS" means an amount equal to:
(i) any Cash payments or proceeds received by Holdings or any of its
Subsidiaries (a) under any insurance policy insuring against loss or damage to
assets and property used in the business of Holdings or its Subsidiaries (other
than proceeds of business interruption insurance or any other insurance policy
to the extent such coverage compensates Company or its Subsidiaries for lost
revenue or profits) or (b) as a result of the taking of any assets of Holdings
or any of its Subsidiaries by any Person pursuant to the power of eminent
domain, condemnation or otherwise, or pursuant to a sale of any such assets to
a purchaser with such power under threat of such a taking, minus (ii) (a) bona
fide direct reasonable costs and expenses incurred by Holdings or any of its
Subsidiaries in connection with the adjustment or settlement of any claims of
Holdings or such Subsidiary in respect thereof (including reasonable fees and
expenses of professional advisors), (b) contractually required payments of
Surviving Capital Leases, Surviving IRBs and Indebtedness incurred under
Sections 6.1(g), 6.1(h), 6.1(j) and 6.1(k), in each case, to the extent
incurred to finance the acquisition of property subject to such loss, taking or
sale, and (c) any bona fide direct costs and expenses incurred in connection
with any sale of such assets as referred to in clause (i)(b) of this
definition, including income taxes payable as a result of any gain recognized
in connection therewith, reasonable fees and expenses of professional advisors,
title and recordation expenses and reasonable indemnification reserves.
"NEW LENDER" means any financial institution or other Person, in
each case, not a party to this Agreement, which, with the consent of Company
and Administrative Agent (which consent shall not be unreasonably withheld),
executes a New Lender Supplement, whereupon such Person shall become a Lender
for all purposes and to the same extent as if originally a party hereto and
shall be bound by and entitled to the benefits of this Agreement, except as
otherwise specifically provided herein.
"NEW LENDER SUPPLEMENT" means a New Lender Supplement
substantially in the form of Exhibit N.
"NEW TERM LOAN" means a term loan made by a Lender on the Second
Amendment Effective Date pursuant to Section 2.1(a) hereof.
"NEW TERM LOAN COMMITMENT" means the commitment of a Lender to
make or otherwise fund a New Term Loan on the Second Amendment Effective Date
and "NEW TERM LOAN COMMITMENTS" means such commitments of all such Lenders in
the aggregate. The amount of each Lender's New Term Loan Commitment, if any,
is set forth on Appendix A-2 hereto or in the applicable Assignment Agreement,
subject to any adjustment or reduction pursuant to the terms and conditions
hereof. The aggregate amount of the New Term Loan Commitments on the Second
Amendment Effective Date is $465,051,437.50.
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"NON-CONSENTING LENDER" as defined in Section 2.25.
"NON-US LENDER" as defined in Section 2.22(c).
"NOTE" means a Term Loan Note, a Swing Line Note, an Incremental
Term Loan Note or a Revolving Loan Note.
"NOTICE" means a Funding Notice, an Issuance Notice, or a
Conversion/Continuation Notice.
"OBLIGATIONS" means all obligations of every nature of each Credit
Party from time to time owed to the Agents (including former Agents), the
Lenders or any Lender Counterparties, under any Credit Document or Financial
Hedge Agreement (including, without limitation, with respect to a Financial
Hedge Agreement, obligations owed thereunder to any person who was a Lender or
an Affiliate of a Lender at the time such Financial Hedge Agreement was entered
into), whether for principal, interest (including interest which, but for the
filing of a petition in bankruptcy with respect to such Credit Party, would
have accrued on any Obligation, whether or not a claim is allowed against such
Credit Party for such interest in the related bankruptcy proceeding),
reimbursement of amounts drawn under Letters of Credit, payments for early
termination of Financial Hedge Agreements, fees, expenses, indemnification or
otherwise and all Obligations of each Credit Party under the Original
Agreement, the 2003 Credit Agreement, or the Existing Agreement that survive
the amendment and restatement thereof in accordance with its terms. For the
avoidance of doubt, Incremental Term Loans and Incremental Revolving Loans
incurred pursuant to Section 2.2 and Section 2.4, respectively, of this
Agreement shall constitute Obligations.
"OBLIGEE GUARANTOR" as defined in Section 7.7.
"ORIGINAL AGREEMENT" means the Credit and Guaranty Agreement,
dated as of July 22, 2002, by and among Holdings, certain Subsidiaries of
Company as Guarantors, the Agents and various Lenders.
"ORIGINAL CLOSING DATE" means July 22, 2002, the date on which the
Term Loans (as defined in the Original Agreement) were made under the Original
Agreement.
"ORIGINAL CLOSING DATE CERTIFICATE" means an Original Closing Date
Certificate substantially in the form of Exhibit G-1.
"ORIGINAL CLOSING DATE SOLVENCY CERTIFICATE" means a Solvency
Certificate of the Chief Financial Officer of Holdings substantially in the
form of Exhibit G-2.
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"ORIGINAL CLOSING DATE MORTGAGED PROPERTY" as defined in
Section 3.1(1).
"ORIGINAL TITLE POLICY" as defined in Section 3.1(l).
"ORGANIZATIONAL DOCUMENTS" means (i) with respect to any
corporation, its certificate or articles of incorporation or organization, as
amended, and its by-laws, as amended, (ii) with respect to any limited
partnership, its certificate of limited partnership, as amended, and its
partnership agreement, as amended, (iii) with respect to any general
partnership, its partnership agreement, as amended, and (iv) with respect to
any limited liability company, its articles of organization, as amended, and
its operating agreement, as amended. In the event any term or condition of
this Agreement or any other Credit Document requires any Organizational
Document to be certified by a secretary of state or similar governmental
official, the reference to any such "Organizational Document" shall only be to
a document of a type customarily certified by such governmental official.
"ORIGINAL TRANSACTION COSTS" means the fees, costs and expenses
payable by Holdings, Company or any of Company's Subsidiaries on or before the
Original Closing Date in connection with the transactions contemplated by the
Credit Documents and the Related Agreements.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue
Code or Section 302 of ERISA.
"PERMITTED ACQUISITION" means any acquisition by Company or any of
its Wholly-Owned Guarantor Subsidiaries, whether by purchase, merger or
otherwise, of all or substantially all of the assets or Capital Stock of, or of
a business line or unit or a division of, any Person; provided,
(i) immediately prior to, and after giving effect
thereto, no Default or Event of Default shall have occurred and be
continuing or would result therefrom;
(ii) all transactions in connection therewith shall be
consummated, in all material respects, in accordance with all applicable
laws and in conformity with all applicable Governmental Authorizations;
(iii) in the case of the acquisition of Capital Stock of
any Person, (A) at least 80% on a fully-diluted basis of each class of
the Capital Stock acquired or otherwise issued by such Person or any
newly formed Subsidiary of Company in connection with such acquisition
shall be owned beneficially and as of record by Company or a Wholly-
Owned Guarantor Subsidiary thereof, and all other such Capital Stock
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shall be owned beneficially and as of record by one or more officers,
directors, employees or founders of such Person, and (B) Company shall
have taken, or caused to be taken, as of the date such Person becomes a
Subsidiary, each of the actions set forth in Sections 5.10 and/or
5.11, as applicable;
(iv) Holdings and its Subsidiaries shall be in compliance
with the financial covenants set forth in Section 6.8 as of the later of
(x) March 30, 2002 and (y) the last day of the most recent Fiscal
Quarter for which quarterly financial statements have been delivered to
the Lenders pursuant to Section 5.1(a), on a pro forma basis after
giving effect to the Permitted Acquisition as a Subject Transaction in
accordance with Section 6.8 (disregarding any increase in Consolidated
Adjusted EBITDA as of such last day that was attributable to the
application of the proceeds of the exercise of a Cure Right with respect
to any fiscal quarter during the four fiscal quarter period ended on
such last day);
(v) Company shall have delivered to Administrative Agent
(for distribution to each Lender upon request) at least ten Business
Days prior to such proposed acquisition:
(A) solely in the case of an acquisition in
respect of which the aggregate amount of Permitted Acquisition
Expenses exceed $20,000,000, a Compliance Certificate evidencing
compliance with Section 6.8 as required under clause (iv) above;
(B) a certificate of the Chief Financial Officer
of Holdings certifying that the unused and available portion of
Revolving Commitments will exceed $30,000,000 as of the date of
the consummation of such acquisition, after giving effect thereto;
(C) all relevant financial information with
respect to such acquired assets, including, without limitation,
the aggregate consideration for such acquisition and any other
information required to demonstrate compliance with this
Agreement; and
(D) such information and due diligence materials
relating to environmental matters as may be required under
Section 5.9(a)(iv) or as may be otherwise reasonably
requested by the Administrative Agent; and
(vi) any Person, assets or business line, unit or division
as acquired in accordance herewith shall be in a business or lines of
business permitted for Company under Section 6.12; and
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(vii) in the case of a direct or indirect acquisition of a
Foreign Subsidiary or any assets, business line, unit or division
located outside the United States of America, on a pro forma basis after
giving effect to such acquisition as of the last day of the Fiscal
Quarter recently ended, Domestic Subsidiaries account for (A) at least
80% of the consolidated assets of Holdings and its Subsidiaries of
Holdings (including Company) as of the last day of the Fiscal Quarter
recently ended and (B) at least 80% of the consolidated revenues of
Holdings and its Subsidiaries for the last four full Fiscal Quarters
recently ended;
provided, no acquisition of assets, Capital Stock, a business line or unit or a
division of any Person shall constitute a Permitted Acquisition unless made
with the consent of such Person's board of directors or similar governing body.
"PERMITTED ACQUISITION EXPENSES" means Cash (a) consideration paid
by Company or any of its wholly-owned Subsidiaries to acquire assets, Capital
Stock or a business line or unit or division in connection with a Permitted
Acquisition made in accordance with Section 6.9(d),(b) bona fide direct costs
and expenses incurred as a result of a Permitted Acquisition (including costs
and expenses related to the shutdown of facilities and employee severance) to
the extent such costs and expenses (i) are capitalized as part of the cost of
the Permitted Acquisition in the consolidated financial statements of Holdings
and (ii) are paid by Company or its Subsidiaries no more than 180 days from
the date of such Permitted Acquisition, and (c) bona fide direct costs and
expenses paid in connection with such Permitted Acquisition, including
reasonable brokerage or selling commissions and fees and expenses of
professional advisors and any title and recordation expenses, provided, no
Restricted Junior Payment shall constitute a Permitted Acquisition Expense.
For the avoidance of doubt, Xxxx Acquisition Financing Requirements shall
be deemed to be Permitted Acquisition Expenses.
"PERMITTED ADJUSTMENTS" means, with respect to any Subject
Transactions, pro forma adjustments arising out of events which are directly
attributable to such Subject Transactions, are factually supportable and are
expected to have a continuing impact, which would include cost savings
resulting from head count reduction, closure of facilities and similar
restructuring charges and raw material and other cost savings, which pro forma
adjustments are certified by the Chief Financial Officer of Holdings and which
are determined (i) on a basis consistent with Article 11 of Regulation S-X
promulgated under the Securities Act and as interpreted by the staff of the
Securities and Exchange Commission or (ii) solely in the case of additional pro
forma adjustments to Consolidated Adjusted EBITDA in an aggregate amount (for
all Subject Transactions during the period of determination and together with
any adjustments to Consolidated Adjusted EBITDA pursuant to Section 6.8(d)(ii)
for the same period) not to exceed 7.5% of pro forma Consolidated Adjusted
EBITDA (as reformulated) for the period of determination (disregarding any
increase in Consolidated Adjusted EBITDA that was attributable to the
application of the proceeds of the exercise of a Cure Right with respect to any
Fiscal Quarter during a four Fiscal Quarter period ended on the last day of
such Fiscal Quarter), on such other basis as may be certified by the Chief
Financial Officer of Holdings to be in compliance with the requirements of this
definition.
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"PERMITTED CURE SECURITIES" means shares of common stock of
Holdings.
"PERMITTED LIENS" means each of the Liens permitted pursuant to
Section 6.2.
"PERSON" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or
other organizations, whether or not legal entities, and Governmental
Authorities.
"PLEDGE AND SECURITY AGREEMENT" means the Pledge and Security
Agreement executed by Company and each Guarantor substantially in the form of
Exhibit I, as it may be amended, supplemented or otherwise modified from time
to time.
"PRIME RATE" means the rate of interest per annum that DBTCA
announces from time to time as its prime lending rate, as in effect from time
to time. The Prime Rate is a reference rate and does not necessarily represent
the lowest or best rate actually charged to any customer. DBTCA or any other
Lender may make commercial loans or other loans at rates of interest at, above
or below the Prime Rate.
"PRINCIPAL OFFICE" means, for each of Administrative Agent, Co-
Syndication Agents, Swing Line Lender and each Issuing Bank, such Person's
"Principal Office" as set forth on Appendix B, or such other office as such
Person may from time to time designate in writing to Company, Administrative
Agent and each Lender.
"PROJECTIONS" as defined in Section 4.9.
"PRO RATA SHARE" means (i) with respect to all payments,
computations and other matters relating to the Term Loan of any Lender, the
percentage obtained by dividing (a) the Term Loan Exposure of that Lender by
(b) the aggregate Term Loan Exposure of all Lenders; (ii) with respect to all
payments, computations and other matters relating to the Revolving Commitment
or Revolving Loans of any Lender or any Letters of Credit issued or
participations purchased therein by any Lender or any participations in any
Swing Line Loans purchased by any Lender, the percentage obtained by dividing
(a) the Revolving Exposure of that Lender by (b) the aggregate Revolving
Exposure of all Lenders; and (iv) with respect to all payments, computations
and other matters relating to the Incremental Term Loans of any Lender, the
percentage obtained by dividing (a) the Incremental Term Loan Exposure of that
Lender by (b) the aggregate Incremental Term Loan Exposure of all Lenders. For
all other purposes with respect to each Lender, "Pro Rata Share" means the
percentage obtained by dividing (A) an amount equal to the sum of the Term Loan
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Exposure, the Revolving Exposure and the Incremental Term Loan Exposure of that
Lender, by (B) an amount equal to the sum of the aggregate Term Loan Exposure,
the aggregate Revolving Exposure, and the aggregate Incremental Term Loan
Exposure of all Lenders.
"REAFFIRMATION AND COUNTERPART AGREEMENT" means the Reaffirmation
and Counterpart Agreement to be executed by Company and each Guarantor
substantially in the form of Exhibit O.
"REAL ESTATE ASSET" means, at any time of determination, any
interest (fee, leasehold or otherwise) then owned by any Credit Party in any
real property.
"RECORD DOCUMENT" means, with respect to any Leasehold Property,
(i) the lease evidencing such Leasehold Property or a memorandum thereof,
executed and acknowledged by the owner of the affected real property, as
lessor, or (ii) if such Leasehold Property was acquired or subleased from the
holder of a Recorded Leasehold Interest, the applicable assignment or sublease
document, executed and acknowledged by such holder, in each case in form
sufficient to give such constructive notice upon recordation and otherwise in
form reasonably satisfactory to Collateral Agent.
"RECORDED LEASEHOLD INTEREST" means a Leasehold Property with
respect to which a Record Document has been recorded in all places necessary or
desirable, in Administrative Agent's reasonable judgment, to give constructive
notice of such Leasehold Property to third-party purchasers and encumbrancers
of the affected real property.
"REFINANCING COSTS" means reasonable costs and expenses incurred
by Company prior to the Second Amendment Effective Date in connection with the
preparation, execution and delivery of this Agreement and related documents.
"REFUNDED SWING LINE LOANS" as defined in Section 2.6(b)(iv).
"REGISTER" as defined in Section 2.9(b).
"REGULATION D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"RELATED AGREEMENTS" means, collectively, the 2002 Merger
Agreement and the Senior Subordinated Note Documents.
"RELATED FUND" means, with respect to any Lender that is an
investment fund, any other investment fund that invests in commercial loans and
that is managed or advised by the same investment advisor as such Lender or by
an Affiliate of such investment advisor.
"RELEASE" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
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leaching or migration of any Hazardous Material into the indoor or outdoor
environment (including the abandonment or disposal of any barrels, containers
or other closed receptacles containing any Hazardous Material), including the
migration of any Hazardous Material through the air, soil, surface water or
groundwater.
"REPLACEMENT LENDER" as defined in Section 2.25.
"REQUISITE CLASS LENDERS" means, at any time of determination,
(i) for the Class of Lenders having Incremental Term Loan Exposure, Lenders
holding more than 50% of the aggregate Incremental Term Loan Exposure of all
Lenders; (ii) for the Class of Lenders having Term Loan Exposure, Lenders
holding more than 50% of the aggregate Term Loan Exposure of all Lenders; and
(iii) for the Class of Lenders having Revolving Exposure, Lenders holding more
than 50% of the aggregate Revolving Exposure of all Lenders.
"REQUISITE LENDERS" means one or more Lenders having or holding
Term Loan Exposure, Revolving Loan Exposure or Incremental Term Loan Exposure
and representing more than 50% of the sum of (i) the aggregate Term Loan
Exposure of all Lenders, (ii) the aggregate Revolving Exposure of all Lenders
and (iii) the aggregate Incremental Term Loan Exposure of all Lenders.
"RESTRICTED JUNIOR PAYMENT" means, in respect of any Person
(i) any dividend or other distribution, direct or indirect, on account of any
Capital Stock of such Person now or hereafter outstanding; (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any Capital Stock of such Person now or hereafter
outstanding; (iii) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares of any
Capital Stock of such Person now or hereafter outstanding; (iv) management or
similar fees payable to Sponsors or any of its Affiliates and (v) any payment
or prepayment of principal of, premium, if any, or interest on, or redemption,
purchase, retirement, defeasance (including in-substance or legal defeasance),
sinking fund or similar payment with respect to any Subordinated Indebtedness,
in each of cases (i) through (v) except a dividend, distribution, payment or
prepayment payable solely in Capital Stock of such Person.
"REVOLVING COMMITMENT" means the commitment of a Lender to make or
otherwise fund any Revolving Loan and to acquire participations in Letters of
Credit hereunder and "REVOLVING COMMITMENTS" means such commitments of all
Lenders in the aggregate. The amount of each Lender's Revolving Commitment, if
any, is set forth on Appendix A-3 or in the applicable Assignment Agreement,
subject to any adjustment or reduction pursuant to the terms and conditions
hereof. The aggregate amount of the Revolving Commitments as of the Original
Closing Date was $100,000,000 and as of the Second Amendment Effective Date is
$150,000,000.
"REVOLVING COMMITMENT PERIOD" means the period from the Original
Closing Date to but excluding the Revolving Commitment Termination Date.
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"REVOLVING COMMITMENT TERMINATION DATE" means the earliest to
occur of (i) Xxxxx 00, 0000, (xx) the date the Revolving Commitments are
permanently reduced to zero pursuant to Section 2.15(b) or 2.16, and (iii) the
date of the termination of the Revolving Commitments pursuant to Section 8.1.
"REVOLVING EXPOSURE" means, with respect to any Lender as of any
date of determination, (i) prior to the termination of the Revolving
Commitments, that Lender's Revolving Commitment; and (ii) after the termination
of the Revolving Commitments, the sum of (a) the aggregate outstanding
principal amount of the Revolving Loans of that Lender, (b) the aggregate
amount of all participations by that Lender in any outstanding Letters of
Credit or any unreimbursed drawing under any Letter of Credit, (c) in the case
of Swing Line Lender, the aggregate outstanding principal amount of all Swing
Line Loans (net of any participations therein by other Lenders), and (d) the
aggregate amount of all participations therein by that Lender in any
outstanding Swing Line Loans.
"REVOLVING LOAN" means a Loan made by a Lender to Company pursuant
to Section 2.3.
"REVOLVING LOAN NOTE" means a promissory note in the form of
Exhibit B-3, as it may be amended, supplemented or otherwise modified from time
to time.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw Hill Corporation.
"SECOND AMENDMENT EFFECTIVE DATE" as defined in Section 3.4.
"SECOND AMENDMENT EFFECTIVE DATE CERTIFICATE" means a Second
Amendment Effective Date Certificate substantially in the form of Exhibit G-3.
"SECOND AMENDMENT EFFECTIVE DATE MORTGAGED PROPERTY" as defined
in Section 3.4(g).
"SECOND AMENDMENT EFFECTIVE DATE SOLVENCY CERTIFICATE" means a
Second Amendment Effective Date Solvency Certificate substantially in the form
of Exhibit G-4.
"SECURED PARTIES" has the meaning assigned to that term in the
Pledge and Security Agreement.
"SECURITIES" means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
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temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time, and any successor statute.
"SELLERS" means Atlantic Equity Partners International II, L.P.,
X.X. Xxxxxx Partners (SBIC), LLC, BPC Equity, LLC and certain members of
Company's management.
"SENIOR SUBORDINATED NOTE DOCUMENTS" means the Senior Subordinated
Note Indenture and the Senior Subordinated Notes, as each such document may be
amended, restated, supplemented or otherwise modified from time to time to the
extent permitted under Section 6.15.
"SENIOR SUBORDINATED NOTE INDENTURE" means the indenture pursuant
to which the Senior Subordinated Notes were issued, in the form delivered to
the Agents and Lenders prior to the Original Closing Date, as any such
indenture may thereafter be amended, restated, supplemented or otherwise
modified from time to time to the extent permitted under Section 6.15.
"SENIOR SUBORDINATED NOTES" means the Senior Subordinated Notes of
Company in the aggregate principal amount not to exceed $440,000,000 at any
time outstanding (plus (i) any such notes issued as payment of interest on
Senior Subordinated Notes and (ii) any additional subordinated notes issued as
permitted by clause (ii) or (iii) of Section 6.1(c)) and issued pursuant to the
Senior Subordinated Note Indenture, with such changes thereto when executed as
are permitted under Section 6.15 and as such notes may thereafter be amended,
restated, supplemented or otherwise modified from time to time to the extent
permitted under Section 6.15.
"SOLVENT" means, with respect to any Credit Party, that as of the
date of determination both (i) (a) the sum of such Credit Party's debt
(including contingent liabilities) does not exceed the present fair saleable
value of all of such Credit Party's assets; (b) such Credit Party's capital is
not unreasonably small in relation to its business or with respect to any
transaction then contemplated; and (c) such Person has not incurred and does
not intend to incur, or believe (nor should it reasonably believe) that it will
incur, debts beyond its ability to pay such debts as they become due (whether
at maturity or otherwise); and (ii) such Person is "solvent" within the meaning
given that term and similar terms under applicable laws relating to fraudulent
transfers and conveyances. For purposes of this definition, the amount of any
contingent liability at any time shall be computed as the amount that, in light
of all of the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability
(irrespective of whether such contingent liabilities meet the criteria for
accrual under Statement of Financial Accounting Standard No. 5).
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"SPONSORS" means any of GS Capital Partners 2000, L.P., GS Capital
Partners 2000 Offshore, L.P., GS Capital Partners 2000 GmbH & Co., Beteiligungs
KG, GS Capital Partners 2000 Employee Fund, L.P., Stone Street Fund 2000, L.P.,
X.X. Xxxxxx Partners (BHCA), L.P., X.X. Xxxxxx Partners Global Investors, L.P.,
X.X. Xxxxxx Partners Global Investors (Cayman), L.P., X.X. Xxxxxx Partners
Global Investors (Cayman) II, L.P., X.X. Xxxxxx Partners Global Investors A,
L.P. and other strategic investors acceptable to Co-Syndication Agents.
"STOCKHOLDER AGREEMENTS" means (i) a stockholders agreement, dated
as of the Original Closing Date, among Holdings and the Sponsors and (ii) a
stockholders agreement, dated as of the Original Closing Date, among Holdings
and certain employees of Holdings and its Subsidiaries parties thereto.
"SUBJECT TRANSACTION" as defined in Section 6.8(d).
"SUBORDINATED INDEBTEDNESS" means the Senior Subordinated Notes
and any other Indebtedness that is subordinate in right of payment and all
other respects to the Obligations on subordination terms that are no less
favorable to the Agents or Lenders in any respect than the subordination and
related terms set forth in the Senior Subordinated Note Documents as in effect
on the 2004 Effective Date.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence
of any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and
policies thereof is at the time owned or controlled, directly or indirectly, by
that Person or one or more of the other Subsidiaries of that Person or a
combination thereof; provided, in determining the percentage of ownership
interests of any Person controlled by another Person, no ownership interest in
the nature of a "qualifying share" of the former Person shall be deemed to be
outstanding.
"SURVIVING CAPITAL LEASES" mean, as of the Second Amendment
Effective Date, the Capital Leases of Company in an aggregate amount not to
exceed $27,000,000 as designated in Schedule 6.1(g).
"SURVIVING INDEBTEDNESS" as defined in Section 6.1(g).
"SURVIVING IRBS" means the Nevada Industrial Revenue Bonds (the
"IRBS") of Company that survived the consummation of the 2002 Merger in an
aggregate amount not to exceed $3,000,000 as designated in Schedule 6.1(g).
"SURVIVING XXXX INDEBTEDNESS" means the surviving indebtedness of
Xxxx and its Subsidiaries as designated in Schedule 6.1(g).
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"SWING LINE LENDER" as defined in the preamble.
"SWING LINE LOAN" means a Loan made by Swing Line Lender to
Company pursuant to Section 2.6.
"SWING LINE NOTE" means a promissory note in the form of
Exhibit B-4, as it may be amended, supplemented or otherwise modified from time
to time.
"SWING LINE SUBLIMIT" means the lesser of (i) $10,000,000, and
(ii) the aggregate unused amount of Revolving Commitments then in effect.
"TAX" means any present or future tax, levy, impost, duty,
assessment, charge, fee, deduction or withholding of any nature and whatever
called, by any Governmental Authority, on whomsoever and wherever imposed,
levied, collected, withheld or assessed; provided, "Tax on the overall net
income" of a Person shall be construed as a reference to a tax imposed by the
jurisdiction in which that Person is organized or in which that Person's
applicable principal office (and/or, in the case of a Lender, its lending
office) is located or in which that Person (and/or, in the case of a Lender,
its lending office) is deemed to be doing business on all or part of the net
income, profits or gains (whether worldwide, or only insofar as such income,
profits or gains are considered to arise in or to relate to a particular
jurisdiction, or otherwise) of that Person (and/or, in the case of a Lender,
its applicable lending office).
"TERM LOAN" means a 2004 Effective Date Term Loan or a New Term
Loan.
"TERM LOAN COMMITMENT" means, with respect to any Lender, (a)
such Lender's 2004 Effective Date Term Loan Commitment (which was fully funded
on the 2004 Effective Date), (b) such Lender's New Term Loan Commitment or (c)
the sum of (a) and (b), as applicable.
"TERM LOAN EXPOSURE" means, with respect to any Lender, as of any
date of determination, the outstanding principal amount of the Term Loans of
such Lender; provided, at any time prior to the making of the Term Loans, the
Term Loan Exposure of any Lender shall be equal to such Lender's Term Loan
Commitment.
"TERM LOAN INSTALLMENT" as defined in Section 2.14(a).
"TERM LOAN INSTALLMENT DATE" as defined in Section 2.14(a).
"TERM LOAN LENDER" means each financial institution listed on
either Appendix A-1 and Appendix A-2.
"TERM LOAN MATURITY DATE" means the earlier of (i) December 2,
2011 and (ii) the date that all Term Loans shall become due and payable in full
hereunder, whether by acceleration or otherwise.
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"TERM LOAN NOTE" means a promissory note in the form of
Exhibit B-1, as it may be amended, supplemented or otherwise modified from time
to time.
"TERMINATED LENDER" as defined in Section 2.25.
"TITLE POLICY" as defined in Section 5.13.
"TOTAL UTILIZATION OF REVOLVING COMMITMENTS" means, as at any date
of determination, the sum of (i) the aggregate principal amount of all
outstanding Revolving Loans (other than Revolving Loans made for the purpose of
repaying any Refunded Swing Line Loans or reimbursing an Issuing Bank for any
amount drawn under any Letter of Credit, but not yet so applied), (ii) the
aggregate principal amount of all outstanding Swing Line Loans and (iii) the
Letter of Credit Usage.
"TRANSACTION COSTS" means (a) the write-off of deferred financing
costs capitalized in connection with the entering into of the 2003 Credit
Agreement and the Existing Credit Agreement and (b) the fees, costs and
expenses payable by Holdings, Company or any of Company's Subsidiaries on or
before the Second Amendment Effective Date in connection with the transactions
contemplated by the Credit Documents and the Xxxx Merger Agreement, which fees,
costs and expenses under clause (b) shall not exceed $15,000,000.
"TYPE OF LOAN" means (i) with respect to either Term Loans or
Revolving Loans, a Base Rate Loan or a Eurodollar Rate Loan, and (ii) with
respect to Swing Line Loans, a Base Rate Loan.
"UCC" means the Uniform Commercial Code (or any similar or
equivalent legislation) as in effect in any applicable jurisdiction.
"UNADJUSTED EURODOLLAR RATE COMPONENT" means that component of the
interest costs to Company in respect of a Eurodollar Rate Loan that is based
upon the rate obtained pursuant to clause (i) of the definition of Adjusted
Eurodollar Rate.
"UNCOMPLETED ACQUISITION COSTS" means, for the purpose of the
calculation set forth in Section 6.8(d)(ii), aggregate out-of-pocket fees,
costs and expenses incurred by Company in connection with one or more proposed,
but uncompleted Permitted Acquisitions.
"US LENDER" means each Lender that is a United States Person (as
such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for
U.S. federal income tax purposes.
"VOTING STOCK" of a Person means all classes of Capital Stock or
other interests of such Person then outstanding which are normally entitled
(without regard to the occurrence of any contingency) to vote in the election
of directors, managers or trustees thereof.
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"WHOLLY-OWNED" means, in respect of any Subsidiary of any Person,
that all Capital Stock of such Subsidiary (other than Capital Stock in the
nature of directors' qualifying shares required by applicable law) is owned
beneficially and as of record by such Person or one more Wholly-Owned
Subsidiaries of such Person.
1.2. ACCOUNTING TERMS
. Except as otherwise expressly provided herein, all accounting
terms not otherwise defined herein shall have the meanings assigned to them in
conformity with GAAP as in effect from time to time; provided, if Company
notifies Administrative Agent that Company requests an amendment to any
provision hereof to eliminate the effect of any change occurring after the date
hereof in GAAP or in the application thereof to the operation of such
provisions, 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 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. Subject to the foregoing,
calculations in connection with the definitions, covenants and other provisions
hereof shall utilize accounting principles and policies in conformity with
those used to prepare the Historical Financial Statements.
1.3. INTERPRETATION, ETC
. Any of the terms defined herein may, unless the context
otherwise requires, be used in the singular or the plural, depending on the
reference. References herein to any Section, Appendix, Schedule or Exhibit
shall be to a Section, an Appendix, a Schedule or an Exhibit, as the case may
be, hereof unless otherwise specifically provided. The use herein of the word
"include" or "including", when following any general statement, term or matter,
shall not be construed to limit such statement, term or matter to the specific
items or matters set forth immediately following such word or to similar items
or matters, whether or not nonlimiting language (such as "without limitation"
or "but not limited to" or words of similar import) is used with reference
thereto, but rather shall be deemed to refer to all other items or matters that
fall within the broadest possible scope of such general statement, term or
matter. Except as otherwise specifically provided, all reference herein to any
Person shall mean such Person and its permitted successors and assigns and all
references herein to any document, instrument or agreement shall mean such
document, instrument or agreement as amended, supplemented or modified from
time to time, to the extent not prohibited by this Agreement.
1.4. INTERRELATIONSHIP WITH THE EXISTING AGREEMENT
.
(a) This Agreement is intended to incorporate certain
amendments to the provisions of the Existing Agreement and, except as expressly
modified herein, (x) all of the terms and provisions of the Existing Agreement
shall continue to apply for the period prior to the Second Amendment Effective
Date, including any determinations of payment dates, interest rates, compliance
with covenants and other obligations, accuracy of representations and
warranties, Events of Default or any amount that may be payable to the
Administrative Agent or the Lenders (or their assignees or replacements
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hereunder), and (y) the obligations under the Existing Agreement shall continue
to be paid or prepaid on or prior to the Second Amendment Effective Date, and
shall from and after the Second Amendment Effective Date continue to be owing
and be subject to the terms of this Agreement. All references in the Notes and
the other Credit Documents to (i) the "Credit Agreement" shall be deemed to
include references to this Agreement and (ii) the "Lenders" or a "Lender" or to
the "Administrative Agent" shall mean such terms as defined in this Agreement.
As to all periods occurring on or after the Second Amendment Effective Date,
all of the covenants set forth in the Existing Agreement shall be of no further
force and effect (with respect to such periods), it being understood that (x)
all obligations of Company and Holdings under the Existing Agreement shall be
governed by this Agreement from and after the Second Amendment Effective Date
and (y) the terms, provisions and covenants contained in the Existing Agreement
shall continue to apply for all periods prior to the Second Amendment Effective
Date, and the effectiveness of this Agreement shall not excuse or waive any
failure to comply with any of the terms, provisions or covenants contained in
the Existing Agreement for any period prior to the Second Amendment Effective
Date.
(b) Company, Holdings, the Agents and the Lenders acknowledge
and agree that all principal, interest, fees, costs, reimbursable expenses and
indemnification obligations accruing or arising under or in connection with the
Existing Agreement which remain unpaid and outstanding as of the Second
Amendment Effective Date shall be and remain outstanding and payable as an
obligation under this Agreement and the other Credit Documents.
SECTION 2. LOANS AND LETTERS OF CREDIT
2.1. TERM LOANS.
(a) Loan Commitments
. Subject to the terms and conditions of the Existing Agreement,
each Lender made, on the 2004 Effective Date, a 2004 Effective Date Term Loan
to Company in an amount equal to such Lender's 2004 Effective Date Term Loan
Commitment. Subject to the terms and conditions hereof, each Lender with a New
Term Loan Commitment severally agrees to make, on the Second Amendment
Effective Date, a New Term Loan to Company in an amount equal to such Lender's
New Term Loan Commitment. Company may make only one borrowing under the New
Term Loan Commitment. Any amount borrowed under this Section 2.1(a) and
subsequently repaid or prepaid may not be reborrowed. Subject to Sections
2.15(a) and 2.16, all amounts owed with respect to the Term Loans shall be paid
in full no later than the Term Loan Maturity Date. Each Lender's New Term Loan
Commitment shall terminate immediately without further action on the Second
Amendment Effective Date after giving effect to the funding of such Lender's
New Term Loan Commitment on such date.
(b) Borrowing Mechanics for Term Loans.
(i) Company shall deliver to Administrative Agent a fully
executed Funding Notice with respect to the New Term Loans no later than
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11:00 a.m. (New York City time) on (A) in the case of Base Rate Loans,
the day prior to the Second Amendment Effective Date and (B) in the case
of Eurodollar Loans, the third day prior to the Second Amendment
Effective Date. Promptly upon receipt by Administrative Agent of such
certificate, Administrative Agent shall notify each Lender of the
proposed borrowing.
(ii) Each Lender shall make its New Term Loan available to
Administrative Agent not later than 12:00 p.m. (New York City time) on
the Second Amendment Effective Date, by wire transfer of same day funds
in Dollars, at Administrative Agent's Principal Office. Upon
satisfaction or waiver of the conditions precedent specified herein,
Administrative Agent shall make the proceeds of the Term Loans available
to Company on the Second Amendment Effective Date by causing an amount
of same day funds in Dollars equal to the proceeds of all such Loans
received by Administrative Agent from Lenders to be credited to the
account of Company at Administrative Agent's Principal Office or to such
other account as may be designated in writing to Administrative Agent by
Company.
(iii) Notwithstanding anything to the contrary in the
Existing Agreement, the last day of each Interest Period with respect to
any 2004 Effective Date Term Loans outstanding immediately prior to the
Second Amendment Effective Date that are Eurodollar Loans shall be
deemed to be the Second Amendment Effective Date. Accordingly, the
Second Amendment Effective Date shall be an Interest Payment Date with
respect to such 2004 Effective Date Term Loans. Each Lender having
outstanding 2004 Effective Date Term Loans on the Second Amendment
Effective Date hereby waives any amounts that would otherwise be due
pursuant to Section 2.20(c) as a result of the operation of this Section
2.1(b)(iii).
2.2. INCREMENTAL TERM LOANS
. Company and any one or more Lenders or New Lenders may from
time to time agree that such Lenders shall make one or more Incremental Term
Loans, which shall constitute Loans for all purposes of this Agreement, by
executing and delivering to the Administrative Agent an Incremental Term Loan
Notice, substantially in the form of Exhibit A-4, not less than 10 Business
Days prior to the Applicable Incremental Term Loan Closing Date, specifying
(i) the principal amount of such Incremental Term Loan, (ii) the applicable
Incremental Term Loan Closing Date, (iii) the applicable Incremental Term Loan
Maturity Date, (iv) the amortization schedule for such Incremental Term Loan
and (v) the Applicable Margin for such Incremental Term Loan; provided that,
(A) after giving pro forma effect to the making of such Incremental Term Loan
and any Permitted Acquisition to be financed with the proceeds thereof, the
Leverage Ratio shall be less than or equal to 3.50:1.00 (disregarding any
increase in Consolidated Adjusted EBITDA that was attributable to the
application of the proceeds of the exercise of a Cure Right with respect to any
Fiscal Quarter during a four Fiscal Quarter period ended on the last day of
such Fiscal Quarter), (B) no Default or Event of Default has occurred and is
continuing or would result after giving effect to the making of such
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Incremental Term Loan or the application of the proceeds therefrom, (C) the
calculation of interest in respect of such Incremental Term Loan as set forth
in the applicable Incremental Term Loan Notice is based on the Base Rate or the
Eurodollar Rate as defined substantially in this Agreement and the maximum
Applicable Margin in respect of such Incremental Term Loan shall not be greater
than 0.50% above the Applicable Margin then in effect, or which could be in
effect under any set of circumstances thereafter, for the Term Loan, (D) such
Incremental Term Loan shall otherwise be on the same terms and conditions as
those generally applicable to the Loans made under this Agreement, (E) the
aggregate principal amount outstanding of Incremental Term Loans pursuant to
this Section 2.2 after giving effect to such Incremental Term Loan shall not
exceed $150,000,000, (F) each borrowing of an Incremental Term Loan pursuant to
this Section 2.2 shall be in a minimum amount of (I) $25,000,000 or (II) the
difference of $150,000,000 and the sum of the aggregate principal amount of all
Incremental Term Loans then outstanding, (G) the average weighted maturity of
all Incremental Term Loans outstanding, after giving effect to such Incremental
Term Loan, shall not be less than the remaining term of the Term Loan, (H) any
Incremental Term Loan Maturity Date shall be on or after the Term Loan Maturity
Date and (I) the Chief Financial Officer of each of Holdings and Company shall
have executed and delivered to the Administrative Agent on the Incremental Term
Loan Closing Date an officer's certificate certifying compliance with the
requirements of this Section 2.2.
2.3. REVOLVING LOANS
.
(a) Revolving Commitments. During the Revolving Commitment
Period, subject to the terms and conditions hereof, each Lender severally
agrees to make Revolving Loans to Company in the aggregate amount up to but not
exceeding such Lender's Revolving Commitment; provided, after giving effect to
the making of any Revolving Loans in no event shall the Total Utilization of
Revolving Commitments exceed the Revolving Commitments then in effect. Amounts
borrowed pursuant to this Section 2.3(a) may be repaid and reborrowed during
the Revolving Commitment Period. Each Lender's Revolving Commitment shall
expire on the Revolving Commitment Termination Date and all Revolving Loans and
all other amounts owed hereunder with respect to the Revolving Loans and the
Revolving Commitments shall be paid in full no later than such date.
(b) Borrowing Mechanics for Revolving Loans.
(i) Except pursuant to Section 2.5(d) and 2.6(b)(iv),
Revolving Loans that are Base Rate Loans shall be made in an aggregate
minimum amount of $1,000,000 and integral multiples of $1,000,000 in
excess of that amount, and Revolving Loans that are Eurodollar Rate
Loans shall be in an aggregate minimum amount of $5,000,000 and integral
multiples of $1,000,000 in excess of that amount.
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(ii) Whenever Company desires that Lenders make Revolving
Loans, Company shall deliver (subject to Section 3.2(b)) to
Administrative Agent a fully executed and delivered Funding Notice no
later than 11:00 a.m. (New York City time) at least three Business Days
in advance of the proposed Credit Date in the case of a Eurodollar Rate
Loan, and at least one Business Day in advance of the proposed Credit
Date in the case of a Revolving Loan that is a Base Rate Loan. Except
as otherwise provided herein, a Funding Notice for a Revolving Loan that
is a Eurodollar Rate Loan shall be irrevocable on and after the
related Interest Rate Determination Date, and Company shall be bound
to make a borrowing in accordance therewith.
(iii) Notice of receipt of each Funding Notice in respect
of Revolving Loans, together with the amount of each Lender's Pro Rata
Share thereof, if any, together with the applicable interest rate, shall
be provided by Administrative Agent to each applicable Lender by
telefacsimile with reasonable promptness, but (provided Administrative
Agent shall have received such notice by 11:00 a.m. (New York City
time)) not later than 3:00 p.m. (New York City time) on the same day as
Administrative Agent's receipt of such Funding Notice from Company.
(iv) Each Lender shall make the amount of its Revolving
Loan available to Administrative Agent not later than 12:00 p.m. (New
York City time) on the applicable Credit Date by wire transfer of same
day funds in Dollars, at Administrative Agent's Principal Office.
Except as provided herein, upon satisfaction or waiver of the conditions
precedent specified herein, Administrative Agent shall make the proceeds
of such Revolving Loans available to Company on the applicable Credit
Date by causing an amount of same day funds in Dollars equal to the
proceeds of all such Revolving Loans received by Administrative Agent
from Lenders to be credited to an account designated in writing to
Administrative Agent by Company.
2.4. INCREMENTAL REVOLVING LOANS
. Company may by written notice to Co-Syndication Agents and
Administrative Agent elect to request once prior to the 30th day after the
Second Amendment Effective Date, in an amount not less than $1,000,000 (or such
lesser amount which shall be approved by Administrative Agent and Co-
Syndication Agents), an increase to the existing Revolving Commitments (any
such increase, the "INCREMENTAL REVOLVING COMMITMENTS") by an amount such that
the aggregate Revolving Commitments, including any Incremental Revolving
Commitments, do not exceed $150,000,000. Such notice (an "INCREMENTAL
REVOLVING NOTICE", substantially in the form of Exhibit A-5) shall specify (i)
the date (the "INCREMENTAL REVOLVING CLOSING DATE") on which Company proposes
that the Incremental Revolving Commitments shall be effective, which shall be a
date not less than 10 Business Days after the date on which such notice is
delivered to Co-Syndication Agents and Administrative Agent and (ii) the
principal amount of the Incremental Revolving Commitments, and (iii) the
identity of each Lender or other Person that is an Eligible Assignee (each, an
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"INCREMENTAL REVOLVING LENDER") to whom Company proposes any portion of such
Incremental Revolving Commitments be allocated and the amounts of such
allocations; provided that any Lender approached to provide all or a portion of
the Incremental Revolving Commitments may elect or decline, in its sole
discretion, to provide an Incremental Revolving Commitment. Such Incremental
Revolving Commitments shall become effective as of the Incremental Revolving
Closing Date; provided that (A) the terms and provisions of the Incremental
Revolving Loans shall be identical to the Revolving Loans under this Agreement;
and (B) to the extent an "Effective Date" (as such term is defined in the
relevant Assignment Agreement) with respect to any purchase of Revolving Loans
assigned to the Incremental Revolving Lenders pursuant to the immediately
succeeding paragraph is not the last day of the relevant Interest Period,
Company shall make any payments required pursuant to Section 2.20(c) in
connection with the Incremental Revolving Commitments.
On any Incremental Revolving Closing Date, subject to the
satisfaction of the foregoing terms and conditions, (a) each of the Lenders of
the Revolving Loans shall assign to each of the Incremental Revolving Lenders,
and each of the Incremental Revolving Lenders shall purchase from each of the
Lenders of the Revolving Loans, at the principal amount thereof (together with
accrued interest), such interests in the Revolving Loans outstanding on such
Incremental Revolving Closing Date as shall be necessary in order that, after
giving effect to all such assignments and purchases, such Revolving Loans will
be held by Lenders of existing Revolving Loans and Incremental Revolving
Lenders ratably in accordance with their Revolving Commitments after giving
effect to the addition of such Incremental Revolving Commitments to the
Revolving Commitments; provided that the Administrative Agent shall use its
commercially reasonable efforts to ensure that the "Effective Date" (as such
term is defined in the relevant Assignment Agreement) with respect to any such
purchase of Revolving Loans assigned to the Incremental Revolving Lenders
pursuant to this paragraph shall be the last day of the relevant Interest
Period, (b) each Incremental Revolving Commitment shall be deemed for all
purposes a Revolving Commitment and each Loan made thereunder (an "INCREMENTAL
REVOLVING LOAN") shall be deemed, for all purposes, a Revolving Loan and (c)
each Incremental Revolving Lender shall become a Lender with respect to the
Incremental Revolving Commitment and all matters relating thereto.
2.5. ISSUANCE OF LETTERS OF CREDIT AND PURCHASE OF PARTICIPATIONS
THEREIN
.
(a) General. Subject to the terms and conditions set forth
herein, Company (or any other Credit Party, so long as Company is a co-obligor
or co-applicant in respect of each Letter of Credit issued for the account of
such other Credit Party on terms reasonably acceptable to Administrative Agent
and the applicable Issuing Bank) may request the issuance of Letters of Credit
for its own account, such Letter of Credit to be in a form reasonably
acceptable to Administrative Agent and the applicable Issuing Bank, at any time
and from time to time during the Revolving Commitment Period. In the event of
any inconsistency between the terms and conditions of this Agreement and the
terms and conditions of any form of letter of credit application or other
agreement submitted by Company to, or entered into by Company with, the
applicable Issuing Bank relating to any Letter of Credit, the terms and
conditions of this Agreement shall control.
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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 or extension of an outstanding Letter of Credit), Company shall hand
deliver or telecopy (or transmit by electronic communication, if arrangements
for doing so have been approved by Issuing Bank) to an Issuing Bank and
Administrative Agent (reasonably, but in any case at least three Business Days
(or such shorter period as may be agreed to by an Issuing Bank), in advance of
the requested date of issuance, amendment, renewal or extension) a fully
executed Issuance Notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which shall
be a Business Day), the date on which such Letter of Credit is to expire (which
shall comply with paragraph (c) of this Section 2.5), the amount of such Letter
of Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit. If requested by Issuing Bank, Company also shall submit a
letter of credit application to the applicable Issuing Bank and Administrative
Agent 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, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit Company shall be deemed to represent and warrant that), after
giving effect to such issuance, amendment, renewal or extension (i) the Letter
of Credit Usage shall not exceed the Letter of Credit Sublimit and (ii) the
Total Utilization of Revolving Commitments shall not exceed the Revolving
Commitments then in effect. All Letters of Credit shall be denominated in
Dollars and the stated amount of each Letter of Credit shall not be less than
$100,000 or such lesser amount as is acceptable to the applicable Issuing Bank
in its sole discretion. Each Issuing Bank shall promptly provide a copy of
each newly issued Letter of Credit, or amendment, renewal or extension thereof,
to Administrative Agent.
(c) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year after
the date of the issuance of such Letter of Credit (or, in the case of any
renewal or extension thereof, one year after such renewal or extension) and
(ii) the date that is five Business Days prior to the Revolving Commitment
Termination Date.
(d) Participations. By the issuance, renewal or extension of a
Letter of Credit (or an amendment to a Letter of Credit increasing the amount
thereof) and without any further action on the part of the applicable Issuing
Bank or the Lenders, the applicable Issuing Bank hereby grants to each Lender,
and each Lender hereby acquires from the applicable Issuing Bank, a
participation in such Letter of Credit equal to such Lender's Pro Rata Share
(with respect to the Revolving Commitments) of the aggregate amount available
to be drawn under such Letter of Credit. In consideration and in furtherance
of the foregoing, each Lender hereby absolutely and unconditionally agrees to
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pay to Administrative Agent, for the account of the applicable Issuing Bank,
such Lender's Pro Rata Share (with respect to the Revolving Commitments) of
each Letter of Credit Disbursement made by the applicable Issuing Bank and not
reimbursed by Company on the date due as provided in paragraph (e) of this
Section, or of any reimbursement payment required to be refunded to Company for
any reason. Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or an Event of Default or
reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If Issuing Bank shall make any Letter of
Credit Disbursement in respect of a Letter of Credit, Issuing Bank shall so
notify Administrative Agent as provided in Section 2.5(g) and Company shall
reimburse such Letter of Credit Disbursement by paying to Administrative Agent
an amount equal to such Letter of Credit Disbursement not later than 2:30 p.m.,
New York City time, on the date that such Letter of Credit Disbursement is
made, if Company shall have received notice of such Letter of Credit
Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such
notice has not been received by Company prior to such time on such date, then
not later than 2:30 p.m., New York City time, on the Business Day immediately
following the day that Company receives such notice, if such notice is not
received prior to such time on the day of receipt; provided, Company may,
subject to the conditions to borrowing set forth herein, request in accordance
with Section 2.3 or Section 2.6 that such payment be financed with a Revolving
Loan that is a Base Rate Loan or a Swing Line Loan in an equivalent amount and,
to the extent so financed, Company's obligation to make such payment shall be
discharged and replaced by the resulting Revolving Loan or Swing Line Loan. If
Company fails to make such payment when due, Administrative Agent shall notify
each Lender of the applicable Letter of Credit Disbursement, the payment then
due from Company in respect thereof and such Lender's Pro Rata Share thereof.
Following receipt of such notice, each Lender shall pay to Administrative Agent
its Pro Rata Share of the payment then due from Company, in the same manner as
provided in Section 2.6 with respect to Loans made by such Lender (and Section
2.6 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
and Administrative Agent shall promptly pay to the applicable Issuing Bank
the amounts so received by it from the Lenders. Promptly following receipt by
Administrative Agent of any payment from Company pursuant to this paragraph,
Administrative Agent shall distribute such payment to the applicable Issuing
Bank or, to the extent that 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 Lender pursuant to
this paragraph to reimburse an Issuing Bank for any Letter of Credit
Disbursement (other than the funding of Revolving Loans as contemplated above)
shall not constitute a Loan and shall not relieve Company of its obligation to
reimburse such Letter of Credit Disbursement.
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(f) Obligations Absolute. The Company's obligation to
reimburse Letter of Credit Disbursements as provided in paragraph (e) of this
Section shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement under any and
all circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit or this Agreement, or any term or
provision therein, (ii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment by
an Issuing Bank under a Letter of Credit against presentation of a draft or
other document that does not comply with the terms of such Letter of Credit, or
(iv) any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of, or provide a right of setoff
against, Company's obligations hereunder. Neither Administrative Agent, the
Lenders nor any Issuing Bank, nor any of their Affiliates, shall have any
liability or responsibility by reason of or in connection with the issuance or
transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the reasonable control of the applicable
Issuing Bank; provided, the foregoing shall not be construed to excuse an
Issuing Bank from liability to Company to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby waived
by Company to the extent permitted by applicable law) suffered by Company that
are caused by Issuing Bank's failure to exercise care when determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof. The parties hereto expressly agree that, in the absence of
gross negligence or willful misconduct on the part of an Issuing Bank (as
finally determined by a court of competent jurisdiction), such Issuing Bank
shall be deemed to have exercised care in each such determination. In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, an
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(g) Disbursement Procedures. The applicable Issuing Bank
shall, promptly following its receipt thereof, examine all documents purporting
to represent a demand for payment under a Letter of Credit. Issuing Bank shall
promptly notify Administrative Agent and Company by telephone (confirmed by
telecopy) of such demand for payment and whether Issuing Bank has made or will
make a Letter of Credit Disbursement thereunder; provided, any failure to give
or delay in giving such notice shall not relieve Company of its obligation to
reimburse the applicable Issuing Bank and the Lenders with respect to any such
Letter of Credit Disbursement.
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(h) Interim Interest. If an Issuing Bank shall make any Letter
of Credit Disbursement, then, unless Company shall reimburse such Letter of
Credit Disbursement in full on the date such Letter of Credit Disbursement is
made, the unpaid amount thereof shall bear interest, for each day from and
including the date such Letter of Credit Disbursement is made to but excluding
the date that Company reimburses such Letter of Credit Disbursement, at the
rate per annum then applicable to Revolving Loans that are Base Rate Loans;
provided, if Company fails to reimburse such Letter of Credit Disbursement when
due pursuant to paragraph (e) of this Section, then such unpaid amount shall
bear interest at a rate which is 2% per annum in excess of the rate of interest
otherwise applicable to Revolving Loans that are Base Rate Loans. Interest
accrued pursuant to this paragraph shall be for the account of Issuing Bank,
except that interest accrued on and after the date of payment by any Lender
pursuant to paragraph (e) of this Section to reimburse an Issuing Bank shall be
for the account of such Lender to the extent of such payment.
(i) Replacement of Issuing Bank; Additional Issuing Banks. An
Issuing Bank may be replaced at any time by written agreement among Company,
Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank.
Administrative Agent shall notify the Lenders of any such replacement of an
Issuing Bank. At the time any such replacement shall become effective, Company
shall pay all unpaid fees accrued for the account of the replaced Issuing Bank.
From and after the effective date of any such replacement, (A) the successor
Issuing Bank shall have all the rights and obligations of an Issuing Bank under
this Agreement with respect to Letters of Credit to be issued thereafter and
(B) 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 an Issuing
Bank under this Agreement with respect to Letters of Credit issued by it prior
to such replacement, but shall not be required to issue additional Letters of
Credit. A Revolving Lender may become an Issuing Bank pursuant to a written
agreement among Company, Administrative Agent and such Revolving Lender (an
"ADDITIONAL ISSUING BANK"), but only if the Issuing Bank has an insufficiently
high credit rating for the issuance of the requested Letter of Credit,
whereupon Administrative Agent shall notify other Revolving Lenders of such
Additional Issuing Bank. Upon becoming an Additional Issuing Bank, all
references to "Issuing Bank" herein shall be deemed to include such Additional
Issuing Bank for the purposes of such Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall
occur and be continuing, on the Business Day that Company receives notice from
Administrative Agent or the Requisite Class Lenders (or, if the maturity of the
Loans has been accelerated, Issuing Bank) demanding the deposit of cash
collateral pursuant to this paragraph, Company shall deposit in an account with
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Administrative Agent, in the name of Administrative Agent and for the benefit
of the Lenders, an amount in cash equal to the Letter of Credit Exposure as of
such date plus any accrued and unpaid interest thereon; provided, the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to Company described in Section 8.1(f) or 8.1(g). Such deposit shall
be held by Administrative Agent as collateral for the payment and
performance of the obligations of Company under this Agreement. 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 Administrative Agent and at Company's risk and expense,
such deposits shall not bear interest. Interest or profits, if any, on
such investments shall accumulate in such account. Moneys in such
account shall be applied by Administrative Agent to reimburse the applicable
Issuing Bank for Letter of Credit Disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of Company at such time or,
if the maturity of the Loans has been accelerated (but subject to the consent
of Issuing Bank), be applied to satisfy other obligations of Company
under this Agreement. If Company is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default,
such amount (to the extent not applied as aforesaid) shall be promptly
returned to Company after all Events of Default have been cured or waived.
(k) Existing Letters of Credit.
(i) Company, the Agents and Issuing Bank acknowledge the
issuance of the Existing Letters of Credit and agree that such Existing
Letters of Credit shall constitute Letters of Credit pursuant to the
terms and conditions of this Agreement and the other Credit Documents.
(ii) Company, the Agents and Issuing Bank acknowledge that
notwithstanding any of the provisions of this Section 2.5, Fleet
National Bank shall not have any obligation to issue new Letters of
Credit, nor will it be obligated to replace its Existing Letters of
Credit at the expiration thereof.
2.6. SWING LINE LOANS
.
(a) Swing Line Loans Commitment. During the Revolving
Commitment Period, subject to the terms and conditions hereof, Swing Line
Lender hereby agrees to make Swing Line Loans to Company in the aggregate
amount up to but not exceeding the Swing Line Sublimit; provided, after giving
effect to the making of any Swing Line Loan, in no event shall the Total
Utilization of Revolving Commitments exceed the Revolving Commitments then in
effect. Amounts borrowed pursuant to this Section 2.6 may be repaid and
reborrowed during the Revolving Commitment Period. Swing Line Lender's
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Revolving Commitment shall expire on the Revolving Commitment Termination Date
and Company shall repay the then unpaid principal amount of each Swing Line
Loan and any accrued and unpaid interest thereon as of the earlier of (i) the
Revolving Commitment Termination Date, (ii) any date on which Company is
borrowing Revolving Loans and (iii) the first date at least two Business Days
after such Swing Line Loan is made that is the 15th or last day of any calendar
month.
(b) Borrowing Mechanics for Swing Line Loans.
(i) Swing Line Loans shall be made in an aggregate
minimum amount of $1,000,000 and integral multiples of $100,000 in
excess of that amount.
(ii) Whenever Company desires that Swing Line Lender make
a Swing Line Loan, Company shall deliver to Swing Line Lender, with a
copy to Administrative Agent (subject to Section 3.2(b)) a Funding
Notice no later than 12:00 p.m. (New York City time) on the proposed
Credit Date.
(iii) Swing Line Lender shall make the amount of its Swing
Line Loan available to Administrative Agent not later than 2:00 p.m.
(New York City time) on the applicable Credit Date by wire transfer of
same day funds in Dollars, at Administrative Agent's Principal Office.
Except as provided herein, upon satisfaction or waiver of the conditions
precedent specified herein, Administrative Agent shall make the proceeds
of such Swing Line Loans available to Company on the applicable Credit
Date by causing an amount of same day funds in Dollars equal to the
proceeds of all such Swing Line Loans received by Administrative Agent
from Swing Line Lender to be credited to an account designated in
writing to Administrative Agent by Company.
(iv) With respect to any Swing Line Loans which have not
been prepaid by Company pursuant to Section 2.15 or Section 2.16, Swing
Line Lender may at any time in its sole and absolute discretion, deliver
to Administrative Agent (with a copy to Company), no later than 11:00
a.m. (New York City time) at least one Business Day in advance of the
proposed Credit Date, a notice (which shall be deemed to be a Funding
Notice given by Company) requesting that each Lender holding a Revolving
Commitment make Revolving Loans that are Base Rate Loans to Company on
such Credit Date in an amount equal to the amount of such Swing Line
Loans (the "REFUNDED SWING LINE LOANS") outstanding on the date such
notice is given which Swing Line Lender requests Lenders to prepay.
Anything contained in this Agreement to the contrary notwithstanding,
(1) the proceeds of such Revolving Loans made by the Lenders other than
Swing Line Lender shall be immediately delivered by Administrative Agent
to Swing Line Lender (and not to Company) and applied to repay a
corresponding portion of the Refunded Swing Line Loans and (2) on the
day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of
the Refunded Swing Line Loans shall be deemed to be paid with the
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proceeds of a Revolving Loan made by Swing Line Lender to Company, and
such portion of the Swing Line Loans deemed to be so paid shall no
longer be outstanding as Swing Line Loans and shall no longer be due
under the Swing Line Note of Swing Line Lender but shall instead
constitute part of Swing Line Lender's outstanding Revolving Loans to
Company and shall be due under the Revolving Loan Note issued by Company
to Swing Line Lender. Company hereby authorizes Administrative Agent
and Swing Line Lender to charge Company's accounts with Administrative
Agent and Swing Line Lender (up to the amount available in each such
account) in order to immediately pay Swing Line Lender the amount of the
Refunded Swing Line Loans to the extent the proceeds of such Revolving
Loans made by Lenders, including the Revolving Loan deemed to be made by
Swing Line Lender, are not sufficient to repay in full the Refunded
Swing Line Loans. If any portion of any such amount paid (or deemed to
be paid) to Swing Line Lender should be recovered by or on behalf of
Company from Swing Line Lender in bankruptcy, by assignment for the
benefit of creditors or otherwise, the loss of the amount so recovered
shall be ratably shared among all the Revolving Lenders.
(v) If for any reason Revolving Loans are not made
pursuant to Section 2.6(b)(iv) in an amount sufficient to repay any
amounts owed to Swing Line Lender in respect of any outstanding Swing
Line Loans on or before the third Business Day after demand for payment
thereof by Swing Line Lender, each Lender holding a Revolving Commitment
shall be deemed to, and hereby agrees to, have purchased a participation
in such outstanding Swing Line Loans, and in an amount equal to its Pro
Rata Share of the applicable unpaid amount together with accrued
interest thereon. Upon one Business Day's notice from Swing Line
Lender, each Lender holding a Revolving Commitment shall deliver to
Swing Line Lender an amount equal to its respective participation in the
applicable unpaid amount in same day funds at the Principal Office of
Swing Line Lender. In order to evidence such participation each Lender
holding a Revolving Commitment agrees to enter into a participation
agreement at the request of Swing Line Lender in form and substance
reasonably satisfactory to Swing Line Lender. In the event any Lender
holding a Revolving Commitment fails to make available to Swing Line
Lender the amount of such Lender's participation as provided in this
paragraph, Swing Line Lender shall be entitled to recover such amount on
demand from such Lender together with interest thereon for three
Business Days at the rate customarily used by Swing Line Lender for the
correction of errors among banks and thereafter at the Base Rate, as
applicable.
(vi) Notwithstanding anything contained herein to the
contrary, (1) each Lender's obligation to make Revolving Loans for the
purpose of repaying any Refunded Swing Line Loans pursuant to the second
preceding paragraph and each Lender's obligation to purchase a
participation in any unpaid Swing Line Loans pursuant to the immediately
preceding paragraph shall be absolute and unconditional and shall not be
affected by any circumstance, including without limitation (A) any
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set-off, counterclaim, recoupment, defense or other right which such
Lender may have against Swing Line Lender, any Credit Party or any other
Person for any reason whatsoever; (B) the occurrence or continuation of
a Default or Event of Default; (C) any adverse change in the business,
operations, properties, assets, condition (financial or otherwise) or
prospects of any Credit Party; (D) any breach of this Agreement or any
other Credit Document by any party thereto; or (E) any other
circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing; and (2) Swing Line Lender shall not be obligated
to make any Swing Line Loans (A) if it has elected not to do so after
the occurrence and during the continuation of a Default or Event of
Default or (B) at a time when a Funding Default exists unless Swing Line
Lender has entered into arrangements satisfactory to it and Company to
eliminate Swing Line Lender's risk with respect to the Defaulting
Lender's participation in such Swing Ling Loan, including by cash
collateralizing such Defaulting Lender's Pro Rata Share of the
outstanding Swing Line Loans.
2.7. PRO RATA SHARES; AVAILABILITY OF FUNDS
.
(a) Pro Rata Shares. All Loans shall be made, and all
participations purchased, by Lenders simultaneously and proportionately to
their respective Pro Rata Shares, it being understood that no Lender shall be
responsible for any default by any other Lender in such other Lender's
obligation to make a Loan requested hereunder or purchase a participation
required hereby nor shall any Commitment of any Lender be increased or
decreased as a result of a default by any other Lender in such other Lender's
obligation to make a Loan requested hereunder or purchase a participation
required hereby.
(b) Availability of Funds. Unless Administrative Agent shall
have been notified by any Lender prior to the applicable Credit Date that such
Lender does not intend to make available to Administrative Agent the amount of
such Lender's Loan requested on such Credit Date, Administrative Agent may
assume that such Lender has made such amount available to Administrative Agent
on such Credit Date and Administrative Agent may, in its sole discretion, but
shall not be obligated to, make available to Company a corresponding amount on
such Credit Date. If such corresponding amount is not in fact made available
to Administrative Agent by such Lender, Administrative Agent shall be entitled
to recover such corresponding amount on demand from such Lender together with
interest thereon, for each day from such Credit Date until the date such amount
is paid to Administrative Agent, at the customary rate set by Administrative
Agent for the correction of errors among banks for three Business Days and
thereafter at the Base Rate. If such Lender does not pay such corresponding
amount forthwith upon Administrative Agent's demand therefor, Administrative
Agent shall promptly notify Company and Company shall immediately pay such
corresponding amount to Administrative Agent together with interest thereon,
for each day from such Credit Date until the date such amount is paid to
Administrative Agent, at the rate payable hereunder for Base Rate Loans for
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such Class of Loans. Nothing in this Section 2.7(b) shall be deemed to relieve
any Lender from its obligation to fulfill its Term Loan Commitment, its
Revolving Commitment or its obligation to purchase participations in Letters
of Credit pursuant to Section 2.5(d) hereunder or to prejudice any rights
that Company may have against any Lender as a result of any default by
such Lender hereunder.
2.8. USE OF PROCEEDS
. The proceeds of the 2004 Effective Date Term Loans made on the
2004 Effective Date were applied by Company on the 2004 Effective Date to
prepay Term Loans and Delayed Draw Loans (each as defined in the 2003 Credit
Agreement) outstanding under the 2003 Credit Agreement and, after prepayment of
such Term Loans and Delayed Draw Loans in full, otherwise for working capital
and general corporate purposes of the Company and its Subsidiaries. The
proceeds of the New Term Loans made on the Second Amendment Effective Date will
be used to fund the Xxxx Acquisition and for general corporate purposes
(including refinancing or retiring substantially all existing debt of Xxxx and
its Subsidiaries and redeeming all preferred stock of Xxxx and its Subsidiaries
and paying fees, commissions and expenses in connection with the Xxxx
Acquisition). The proceeds of the Revolving Loans, Swing Line Loans and
Letters of Credit made after the 2004 Effective Date shall be applied by
Company for Permitted Acquisition Expenses working capital and general
corporate purposes of Company and its Subsidiaries; provided, however, in no
event will the proceeds of Revolving Loans be used for the purposes of
prepaying Loans as permitted under Section 2.15 hereof. The proceeds of any
Incremental Term Loan shall be used as set forth in the applicable Incremental
Term Loan Notice or, where and so provided, for working capital and general
corporate purposes of Company and its Subsidiaries. No portion of the proceeds
of any Credit Extension shall be used in any manner that causes or might cause
such Credit Extension or the application of such proceeds to violate
Regulation T, Regulation U or Regulation X of the Board of Governors of the
Federal Reserve System or any other regulation thereof or to violate the
Exchange Act.
2.9. EVIDENCE OF DEBT; REGISTER; LENDERS' BOOKS AND RECORDS; NOTES
.
(a) Lenders' Evidence of Debt. Each Lender shall maintain on
its internal records an account or accounts evidencing the Indebtedness of
Company to such Lender, including the amounts of the Loans made by it and each
repayment and prepayment in respect thereof. Any such recordation shall be
conclusive and binding on Company, absent manifest error; provided, failure to
make any such recordation, or any error in such recordation, shall not affect
any Lender's Commitments or Company's Obligations in respect of any applicable
Loans; and provided further, in the event of any inconsistency between the
Register and any Lender's records, the recordations in the Register shall
govern.
(b) Register. Administrative Agent, acting on behalf of
Company, shall maintain at its Principal Office a register for the recordation
of the names and addresses of Lenders and the Commitments and Loans of each
Lender from time to time (the "REGISTER"). The Register shall be available for
inspection by Company or any Lender (with respect to entries related to such
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Xxxxxx) at any reasonable time and from time to time upon reasonable prior
request. Administrative Agent shall record in the Register the Commitments and
the Loans, and each repayment or prepayment in respect of the principal amount
of the Loans, and any such recordation shall be conclusive and binding on
Company and each Lender, absent manifest error; provided, failure to make any
such recordation, or any error in such recordation, shall not affect any
Lender's Commitments or Company's Obligations in respect of any Loan. Company
hereby designates DBTCA to serve as Company's agent solely for purposes of
maintaining the Register as provided in this Section 2.9, and Company hereby
agrees that, to the extent DBTCA serves in such capacity, DBTCA and its
officers, directors, employees, agents and affiliates shall constitute
"Indemnitees."
(c) Notes. (i) If so requested by any Lender by written
notice to Company (with a copy to Administrative Agent) at least two Business
Days prior to the Second Amendment Effective Date, or at any time thereafter,
Company shall execute and deliver to such Lender (and/or, if applicable and if
so specified in such notice, to any Person who is an assignee of such Lender
pursuant to Section 10.6) on the Second Amendment Effective Date (or, if such
notice is delivered after the Second Amendment Effective Date, promptly after
Company's receipt of such notice) a Note or Notes to evidence such Lender's
Term Loan, Swing Line Loan, Incremental Term Loan or Revolving Loan, as the
case may be.
2.10. INTEREST ON LOANS
.
(a) Except as otherwise set forth herein, each Class of Loan
shall bear interest on the unpaid principal amount thereof from the date made
through repayment (whether by acceleration or otherwise) thereof as follows:
(i) in the case of Revolving Loans:
(1) if a Base Rate Loan, at the Base Rate
plus the Applicable Margin; or
(2) if a Eurodollar Rate Loan, at the
Adjusted Eurodollar Rate plus the Applicable Margin;
(ii) in the case of Swing Line Loans, at the Base Rate
plus the Applicable Margin; and
(iii) in the case of Term Loans:
(1) if a Base Rate Loan, at the Base Rate
plus the Applicable Margin; or
(2) if a Eurodollar Rate Loan, at the
Adjusted Eurodollar Rate plus the Applicable Margin.
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(b) The basis for determining the rate of interest with respect
to any Loan (except a Swing Line Loan), and the Interest Period with respect to
any Eurodollar Rate Loan, shall be selected by Company and notified to
Administrative Agent and Lenders pursuant to the applicable Funding Notice or
Conversion/Continuation Notice, as the case may be; provided, until the earlier
of (A) the date that Administrative Agent notifies Company that the primary
syndication of the New Term Loan Commitments has been completed and (B) the
date that is 30 days following the Second Amendment Effective Date, the New
Term Loans shall be maintained as either (1) Eurodollar Rate Loans having an
Interest Period of no longer than one month or (2) Base Rate Loans. If on any
day a Loan is outstanding with respect to which a Funding Notice or
Conversion/Continuation Notice has not been delivered to Administrative Agent
in accordance with the terms hereof specifying the applicable basis for
determining the rate of interest, then for that day such Loan shall be a Base
Rate Loan. Swing Line Loans shall be made and maintained only as Base Rate
Loans.
(c) In connection with Eurodollar Rate Loans there shall be no
more than ten Interest Periods outstanding at any time. In the event Company
fails to specify between a Base Rate Loan or a Eurodollar Rate Loan in the
applicable Funding Notice or Conversion/Continuation Notice, such Loan (if
outstanding as a Eurodollar Rate Loan) will be automatically converted into a
Base Rate Loan on the last day of the then-current Interest Period for such
Loan (or if outstanding as a Base Rate Loan will remain as, or (if not then
outstanding) will be made as, a Base Rate Loan). In the event Company fails to
specify an Interest Period for any Eurodollar Rate Loan in the applicable
Funding Notice or Conversion/Continuation Notice, Company shall be deemed to
have selected an Interest Period of one month. As soon as practicable after
10:00 a.m. (New York City time) on each Interest Rate Determination Date,
Administrative Agent shall determine (which determination shall, absent
manifest error, be final, conclusive and binding upon all parties) the interest
rate that shall apply to the Eurodollar Rate Loans for which an interest rate
is then being determined for the applicable Interest Period and shall promptly
give notice thereof in writing (it being understood that electronic notice
shall constitute writing) to Company and each Lender in the applicable Class.
(d) Interest payable pursuant to Section 2.10(a) shall be
computed (i) in the case of Base Rate Loans on the basis of a 365-day or
366-day year, as the case may be, and (ii) in the case of Eurodollar Rate
Loans, on the basis of a 360-day year, in each case for the actual number of
days elapsed in the period during which it accrues. In computing interest on
any Loan, the date of the making of such Loan or the first day of an Interest
Period applicable to such Loan or, with respect to a Base Rate Loan being
converted from a Eurodollar Rate Loan, the date of conversion of such
Eurodollar Rate Loan to such Base Rate Loan, as the case may be, shall be
included, and the date of payment of such Loan or the expiration date of an
Interest Period applicable to such Loan or, with respect to a Base Rate Loan
being converted to a Eurodollar Rate Loan, the date of conversion of such Base
Rate Loan to such Eurodollar Rate Loan, as the case may be, shall be excluded;
provided, if a Loan is repaid on the same day on which it is made, one day's
interest shall be paid on that Loan.
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(e) Except as otherwise set forth herein, interest on each Loan
shall be payable in arrears on and to (i) each Interest Payment Date applicable
to that Loan; (ii) any prepayment of that Loan, whether voluntary or mandatory,
to the extent accrued on the amount being prepaid; and (iii) at maturity,
including final maturity; provided, however, with respect to any voluntary
prepayment of a Base Rate Loan, accrued interest shall instead be payable on
the applicable Interest Payment Date.
2.11. CONVERSION/CONTINUATION
.
(a) Subject to Section 2.20 and so long as no Default or Event of
Default shall have occurred and then be continuing, Company shall have the
option:
(i) to convert at any time all or any part of any Loan
equal to $500,000 and integral multiples of $100,000 in excess of that
amount from one Type of Loan to another Type of Loan; provided, a
Eurodollar Rate Loan may only be converted on the expiration of the
Interest Period applicable to such Eurodollar Rate Loan unless Company
shall pay all amounts due under Section 2.20 in connection with any
such conversion; or
(ii) upon the expiration of any Interest Period applicable
to any Eurodollar Rate Loan, to continue all or any portion of such Loan
equal to $500,000 and integral multiples of $100,000 in excess of that
amount as a Eurodollar Rate Loan.
(b) The Company shall deliver a Conversion/Continuation Notice
to Administrative Agent no later than 11:00 a.m. (New York City time) at least
one Business Day in advance of the proposed Conversion/Continuation Notice (in
the case of a conversion to a Base Rate Loan) and at least three Business Days
in advance of the proposed Conversion/Continuation Date (in the case of a
conversion to, or a continuation of, a Eurodollar Rate Loan). Except as
otherwise provided herein, a Conversion/ Continuation Notice for conversion to,
or continuation of, any Eurodollar Rate Loans (or telephonic notice in lieu
thereof) shall be irrevocable on and after the related Interest Rate
Determination Date, and Company shall be bound to effect a conversion or
continuation in accordance therewith.
2.12. DEFAULT INTEREST
. Upon the occurrence and during the continuance of an Event of
Default, the principal amount of all Loans outstanding and, to the extent
permitted by applicable law, any interest payments on the Loans or any fees or
other amounts owed hereunder, shall thereafter bear interest (including
post-petition interest in any proceeding under the Bankruptcy Code or other
applicable bankruptcy laws) payable on demand at a rate that is 2% per annum in
excess of the interest rate otherwise payable hereunder with respect to the
applicable Loans (or, in the case of any such fees and other amounts, at a rate
which is 2% per annum in excess of the interest rate otherwise payable
hereunder for Base Rate Loans); provided, in the case of Eurodollar Rate Loans,
upon the expiration of the Interest Period in effect at the time any such
increase in interest rate is effective such Eurodollar Rate Loans shall
thereupon become Base Rate Loans and shall thereafter bear interest payable
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upon demand at a rate which is 2% per annum in excess of the interest rate
otherwise payable hereunder for Base Rate Loans. Payment or acceptance of the
increased rates of interest provided for in this Section 2.12 is not a
permitted alternative to timely payment and shall not constitute a waiver of
any Event of Default or otherwise prejudice or limit any rights
or remedies of Administrative Agent or any Lender.
2.13. FEES
.
(a) Company agrees to pay to Lenders having Revolving Exposure:
(i) commitment fees equal to (1) the average of the daily
difference between (a) the Revolving Commitments, and (b) the sum of
(x) the aggregate principal amount of outstanding Revolving Loans (but
not Swing Line Loans) plus (y) the Letter of Credit Usage, times (2) the
Applicable Revolving Commitment Fee Percentage; and
(ii) letter of credit fees equal to (1) the Applicable
Margin for Revolving Loans that are Eurodollar Rate Loans, times (2) the
average aggregate daily maximum amount available to be drawn under all
such Letters of Credit (regardless of whether any conditions for drawing
could then be met and determined as of the close of business on any date
of determination).
All fees referred to in Section 2.13(a) shall be paid to Administrative Agent
at its Principal Office and upon receipt, Administrative Agent shall
promptly distribute to each Lender its Pro Rata Share thereof.
(b) Company agrees to pay directly to each Issuing Bank, for
its own account, the following fees:
(i) a fronting fee in an amount equal to (1) an amount
per annum (not to exceed 0.25%) as may be agreed by Company and such
Issuing Bank, times (2) the average aggregate daily maximum amount
available to be drawn under all Letters of Credit (determined as of the
close of business on any date of determination); and
(ii) such documentary and processing charges for any
issuance, amendment, transfer or payment of a Letter of Credit as are in
accordance with the applicable Issuing Bank's standard schedule for such
charges and as in effect at the time of such issuance, amendment,
transfer or payment, as the case may be.
(c) Company agrees to pay to each Incremental Term Loan Lender
the fees, if any, required to be paid by it under any Incremental Term Loan
Notice.
(d) Company agrees to pay to each Incremental Revolving Lender
the fees, if any, required to be paid by it under any Incremental Revolving
Notice.
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(e) All fees referred to in Section 2.13(a) and 2.13(b)(i) shall
be calculated on the basis of a 360-day year and the actual number of days
elapsed and shall be payable quarterly in arrears on March 31, June 30,
September 30 and December 31 of each year during the applicable Commitment
Period, commencing on the first such date to occur after the Original Closing
Date, and on the applicable Commitment Termination Date.
(f) In addition to any of the foregoing fees, Company agrees to
pay to Agents such other fees in the amounts and at the times separately agreed
upon.
2.14. SCHEDULED PAYMENTS/COMMITMENT REDUCTIONS
.
(a) Scheduled Installments. The principal amounts of the Term
Loans shall be repaid in consecutive quarterly installments (each, a "TERM LOAN
INSTALLMENT") in the aggregate amounts and on the dates (each, a "TERM LOAN
INSTALLMENT DATE") set forth below, commencing on September 30, 2005.
TERM LOAN INSTALLMENT DATETERM LOAN INSTALLMENT
September 30, 2005 $1,987,500
December 31, 2005 $1,987,500
March 31, 2006 $1,987,500
June 30, 2006 $1,987,500
September 30, 2006 $1,987,500
December 31, 2006 $1,987,500
March 31, 2007 $1,987,500
June 30, 2007 $1,987,500
September 30, 2007 $1,987,500
December 31, 2007 $1,987,500
March 31, 2008 $1,987,500
June 30, 2008 $1,987,500
September 30, 2008 $1,987,500
December 31, 2008 $1,987,500
March 31, 2009 $1,987,500
June 30, 2009 $1,987,500
September 30, 2009 $1,987,500
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December 31, 2009 $1,987,500
March 31, 2010 $1,987,500
June 30, 2010 $1,987,500
September 30, 2010 $1,987,500
December 31, 2010 $188,315,625
March 31, 2011 $188,315,625
June 30, 2011 $188,315,625
September 30, 2011 $188,315,625
(b) The principal amount of any Incremental Term Loan shall be
repaid in such amounts and on such dates (each, an "INCREMENTAL TERM LOAN
INSTALLMENT DATE") as provided in the applicable Incremental Term Loan Notice.
(c) Notwithstanding the foregoing, (i) Term Loan Installments
and Incremental Term Loan Installments shall be reduced in connection with any
voluntary or mandatory prepayments of the Term Loans or the Incremental Term
Loans, as the case may be, in accordance with Sections 2.15, 2.16, and 2.17,
as applicable; and (ii) the Term Loans and the Incremental Term Loans, together
with all other amounts owed hereunder or under the applicable Incremental
Term Loan Notice with respect thereto, shall, in any event, be paid in full
no later than the Term Loan Maturity Date and the applicable Incremental Term
Loan Maturity Date, respectively.
2.15. VOLUNTARY PREPAYMENTS/COMMITMENT REDUCTIONS
.
(a) Voluntary Prepayments.
(i) Any time and from time to time:
(1) with respect to Base Rate Loans (other
than Swing Line Loans), Company may prepay any such Loans
on any Business Day in whole or in part, in an aggregate
minimum amount of $1,000,000 and integral multiples of
$500,000 in excess of that amount;
(2) with respect to Eurodollar Rate Loans,
Company may prepay any such Loans on any Business Day in
whole or in part in an aggregate minimum amount of
$1,000,000 and integral multiples of $500,000 in excess of
that amount; and
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(3) with respect to Swing Line Loans,
Company may prepay any such Loans on any Business Day in
whole or in part in an aggregate minimum amount of
$1,000,000, and in integral multiples of $100,000 in excess
of that amount.
(ii) All such prepayments shall be made:
(1) in the case of Base Rate Loans (other
than Swing Line Loans), upon not less than one Business
Day's prior written or telephonic notice to Administrative
Agent;
(2) in the case of Eurodollar Rate Loans,
upon not less than three Business Days' prior written or
telephonic notice to Administrative Agent; and
(3) in the case of Swing Line Loans, upon
written or telephonic notice on the date of prepayment to
Administrative Agent and Swing Line Lender;
in each case given by 12:00 p.m. (New York City time) on the date required and,
if given by telephone, promptly confirmed in writing to Administrative Agent
(and Administrative Agent will promptly transmit such telephonic or original
notice for Term Loans or Revolving Loans, as the case may be, by telefacsimile,
electronic notice or telephone to each Lender in the applicable Class) and, as
applicable, Swing Line Lender. Upon the giving of any such notice, the
principal amount of the Loans specified in such notice shall become due and
payable on the prepayment date specified therein.
(b) Voluntary Commitment Reductions.
(i) Company may, upon not less than three Business Days'
prior written or telephonic notice confirmed in writing to
Administrative Agent (which original written or telephonic notice
Administrative Agent will promptly transmit by telefacsimile, electronic
notice or telephone to each applicable Lender), at any time and from
time to time terminate in whole or permanently reduce in part, without
premium or penalty, during the Revolving Commitment Period, the
Revolving Commitments in an amount up to the amount by which the
Revolving Commitments exceed the Total Utilization of Revolving
Commitments at the time of such proposed termination or reduction;
provided, any such partial reduction of Commitments shall be in an
aggregate minimum amount of $1,000,000 and integral multiples of
$500,000 in excess of that amount.
(ii) Company's notice to Administrative Agent shall
designate the date (which shall be a Business Day) of such termination
or reduction and the amount of any partial reduction, and such
termination or reduction of the Commitments shall be effective on the
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date specified in Company's notice and shall reduce the Commitment of
each Lender proportionately to its Pro Rata Share thereof.
2.16. MANDATORY PREPAYMENTS/COMMITMENT REDUCTIONS
.
(a) Asset Sales. No later than the first Business Day
following the date of receipt by Holdings or any of its Subsidiaries of any Net
Asset Sale Proceeds, Company shall prepay Loans and/or permanently reduce
Commitments as set forth in Section 2.17(b)in an aggregate amount equal to 100%
of such Net Asset Sale Proceeds;provided, (i) so long as no Default or Event of
Default shall have occurred and be continuing and (ii) to the extent that
aggregate Net Asset Sale Proceeds from the Second Amendment Effective Date
through the applicable date of determination do not exceed $15,000,000, Company
shall have the option, directly or through one or more of its Subsidiaries, to
invest Net Asset Sale Proceeds within three hundred sixty days of receipt
thereof in long-term productive assets of the general type used in the business
of Company and its Subsidiaries and upon expiration of the three hundred sixty
day period, prepayment of Loans and/or the permanent reduction of Commitments
shall be required with any non-reinvested proceeds; provided further, pending
any such investment prior to the expiration of the three hundred sixty day
period all such Net Asset Sale Proceeds shall be applied to prepay Revolving
Loans to the extent outstanding (without a reduction in Revolving Commitments).
(b) Insurance/Condemnation Proceeds. No later than the first
Business Day following the date of receipt by Holdings or any of its
Subsidiaries, or Administrative Agent as loss payee, of any Net
Insurance/Condemnation Proceeds, Company shall prepay Loans and/or reduce
Commitments as set forth in Section 2.17(b)in an aggregate amount equal to such
Net Insurance/Condemnation Proceeds;provided, so long as no Default or Event of
Default shall have occurred and be continuing, Company shall have the option,
directly or through one or more of its Subsidiaries to invest such Net
Insurance/Condemnation Proceeds within three hundred sixty days of receipt
thereof in the repair, restoration or replacement of the applicable assets
thereof, or in long term productive assets of the general type used in the
business of Holdings and its Subsidiaries with the consent of Administrative
Agent, such consent not to be unreasonably withheld and upon expiration of the
three hundred sixty day period, prepayment of Loans and/or the permanent
reduction of Commitments shall be required with any non-reinvested proceeds;
provided further, pending any such investment prior to the expiration of the
three hundred sixty day period, all such Net Insurance/Condemnation Proceeds,
as the case may be, shall be applied to prepay Revolving Loans to the extent
outstanding (without a reduction in Revolving Commitments); provided, further,
if a Default subject to a cure period under Section 8.1(e) has occurred, but
such cure period has not yet expired, then (i) until the earlier of (x) the
cure of the Default or (y) the expiration of such cure period, all such Net
Insurance/Condemnation Proceeds, as the case may be, shall be applied to prepay
Revolving Loans (without a reduction in Revolving Commitments) and, to the
extent of any excess, held for the benefit of the Lenders under arrangements
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reasonably satisfactory to Administrative Agent, and (ii) upon the expiration
of such cure period, unless the Default has been cured, all such Net
Insurance/Condemnation Proceeds, as the case may be, shall be applied to prepay
Indebtedness in accordance with the requirements of Section 2.17(b).
(c) Issuance of Equity Securities. On the date of receipt by
Holdings or any of its Subsidiaries after the 2004 Effective Date of any Cash
proceeds from a capital contribution to, or the issuance of any Capital Stock
of, Holdings or any of its Subsidiaries (other than pursuant to any employee
stock or stock option compensation plan), to the extent such proceeds are not
used to pay Permitted Acquisition Expenses or, solely in the case of proceeds
from Additional Sponsor Equity, Consolidated Capital Expenditures, Company
shall prepay Loans and/or reduce Commitments as set forth in Section 2.17(b)
in an aggregate amount equal to 75% of such remaining proceeds, net of
underwriting discounts and commissions and other reasonable costs and
expenses associated therewith, including reasonable fees and expenses of
professional advisors; provided, during any period in which the Leverage Ratio
(determined for any such period by reference to the most recent Compliance
Certificate delivered pursuant to Section 5.1(c) calculating the Leverage Ratio)
shall be 4.25:1.00 or less, Company shall only be required to make the
prepayments and/or reductions otherwise required hereby in an amount equal to
50% of such net proceeds.
(d) Issuance of Debt. On the date of receipt by Holdings or
any of its Subsidiaries after the Original Closing Date of any Cash proceeds
from incurrence of any Indebtedness of Holdings or any of its Subsidiaries
other than with respect to any Indebtedness permitted to be incurred pursuant
to Section 6.1, excluding Section 6.1(c)(ii), Company shall prepay Loans
and/or reduce Commitments as set forth in Section 2.17(b) in an aggregate
amount equal to 100% of such proceeds, net of underwriting discounts and
commissions and other reasonable costs and expenses associated therewith,
including reasonable legal fees and expenses.
(e) Consolidated Excess Cash Flow. In the event that there
shall be Consolidated Excess Cash Flow for any Fiscal Year, Company shall, no
later than ninety days after the end of such Fiscal Year, prepay Loans and/or
reduce Commitments as set forth in Section 2.17(b) in an aggregate amount equal
to 75% of such Consolidated Excess Cash Flow; provided, (i) for any Fiscal
Year in which the Leverage Ratio (determined for any such Fiscal Year by
reference to the most recent applicable Compliance Certificate delivered
pursuant to Section 5.1(c) and disregarding any increase in Consolidated
Adjusted EBITDA that was attributable to the application of the proceeds of the
exercise of a Cure Right with respect to any Fiscal Quarter during a four
Fiscal Quarter period ended on the last day of such Fiscal Quarter) is less
than 4.75:1.00 but equal to or greater than 3.50:1.00, Company shall only
be required to make the prepayments and/or reductions otherwise required
hereby in an amount equal to 50% of such Consolidated Excess Cash Flow, (ii)
for any Fiscal Year in which the Leverage Ratio (determined for any such
Fiscal Year by reference to the most recent applicable Compliance
Certificate delivered pursuant to Section 5.1 (c) and
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disregarding any increase in Consolidated Adjusted EBITDA that was attributable
to the application of the proceeds of the exercise of a Cure Right with respect
to any Fiscal Quarter during a four Fiscal Quarter period ended on the last day
of such Fiscal Quarter) is less than 3.50:1.00, but equal to or greater than
2.50:1.00, Company shall only be required to make the prepayments and/or
reductions otherwise required hereby in an amount equal to 25% of such
Consolidated Excess Cash Flow and (iii) for any Fiscal Year in which the
Leverage Ratio (determined for any such Fiscal Year by reference to the most
recent applicable Compliance Certificate delivered pursuant to Section 5.1(c)
and disregarding any increase in Consolidated Adjusted EBITDA that was
attributable to the application of the proceeds of the exercise of a Cure Right
with respect to any Fiscal Quarter during a four Fiscal Quarter period ended on
the last day of such Fiscal Quarter) is less than 2.50:1.00, Company shall not
be required to make any prepayments and/or reductions otherwise required by
this Section 2.16(e).
(f) Revolving Loans. Company shall from time to time prepay
first, the Swing Line Loans, and second, the Revolving Loans to the extent
necessary so that the Total Utilization of Revolving Commitments shall not at
any time exceed the Revolving Commitments then in effect.
(g) Prepayment Certificate. Concurrently with any prepayment
of Loans and/or reduction of Commitments pursuant to Sections 2.16(a)
through 2.16(e), Company shall deliver to Administrative Agent a certificate
of an Authorized Officer demonstrating the calculation of the amount of the
applicable net proceeds or Consolidated Excess Cash Flow, as the case may be.
In the event that Company shall subsequently determine that the actual
amount received exceeded the amount set forth in such certificate, Company
shall promptly make an additional prepayment of the Loans and/or the Revolving
Commitments shall be permanently reduced in an amount equal to such excess
as provided in Section 2.17, and Company shall concurrently therewith deliver
to Administrative Agent a certificate of an Authorized Officer demonstrating
the derivation of such excess.
2.17. APPLICATION OF PREPAYMENTS/REDUCTIONS
.
(a) Application of Voluntary Prepayments by Class of Loans.
Any prepayment of any Loan pursuant to Section 2.15(a) shall be applied as
follows:
first, to repay outstanding Swing Line Loans to the full
extent thereof; and
second, as among outstanding Revolving Loans, Term Loans,
and Incremental Term Loans, as Company may direct.
Any prepayment of any Term Loan or Incremental Term Loan pursuant
to Section 2.15(a) shall be further applied on a pro rata basis to reduce the
scheduled remaining installments of principal.
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(b) Application of Mandatory Prepayments by Class of Loans.
Any amount required to be paid pursuant to Sections 2.16(a) through 2.16(e)
shall be applied as follows:
first, to prepay Term Loans and Incremental Term Loans on a
pro rata basis (in accordance with the respective outstanding principal
amounts thereof and to reduce remaining scheduled installments of
principal on a pro rata basis);
second, to prepay the Swing Line Loans to the full extent
thereof and to permanently reduce the Revolving Commitments by the
amount of such prepayment;
third, to pay outstanding reimbursement obligations with
respect to drawn Letters of Credit;
fourth, to prepay Revolving Loans to the full extent
thereof and to permanently reduce the Revolving Commitments by the
amount of such prepayment;
fifth, to cash collateralize Letters of Credit and to
further permanently reduce the Revolving Loan Commitments by the amount
of such cash collateralization; and
sixth, to further permanently reduce the Revolving
Commitments.
(c) Application of Prepayments of Loans to Base Rate Loans and
Eurodollar Rate Loans. Considering each Type of Loan being prepaid separately,
any prepayment thereof shall be applied first to Base Rate Loans to the full
extent thereof before application to Eurodollar Rate Loans, in each case in a
manner which minimizes the amount of any payments required to be made by
Company pursuant to Section 2.20(c).
2.18. GENERAL PROVISIONS REGARDING PAYMENTS
.
(a) All payments by Company of principal, interest, fees and
other Obligations shall be made in Dollars in same day funds, without defense,
setoff or counterclaim, free of any restriction or condition, and delivered to
Administrative Agent not later than 12:00 p.m. (New York City time) on the date
due at Administrative Agent's Principal Office for the account of Lenders;
funds received by Administrative Agent after that time on such due date shall
be deemed to have been paid by Company on the next succeeding Business Day.
(b) All payments in respect of the principal amount of any Loan
(other than voluntary prepayments of Revolving Loans) shall include payment of
accrued interest on the principal amount being repaid or prepaid, and all such
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payments (and, in any event, any payments in respect of any Loan on a date when
interest is due and payable with respect to such Loan) shall be applied to the
payment of interest before application to principal.
(c) Administrative Agent shall promptly distribute to each
Lender at such address as such Lender shall indicate in writing, such Lender's
applicable Pro Rata Share of all payments and prepayments of principal and
interest due hereunder, together with all other amounts due thereto, including,
without limitation, all fees payable with respect thereto, to the extent
received by Administrative Agent.
(d) Notwithstanding the foregoing provisions hereof, if any
Conversion/Continuation Notice is withdrawn as to any Affected Lender or if any
Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any
Eurodollar Rate Loans, Administrative Agent shall give effect thereto in
apportioning payments received thereafter.
(e) Subject to the provisos set forth in the definition of
"Interest Period", whenever any payment to be made hereunder shall be stated to
be due on a day that is not a Business Day, such payment shall be made on the
next succeeding Business Day and such extension of time shall be included in
the computation of the payment of interest hereunder or of the Revolving
Commitment fees hereunder.
(f) Company hereby authorizes Administrative Agent to charge
Company's accounts with Administrative Agent in order to cause timely payment
to be made to Administrative Agent of all principal, interest, fees and
expenses due hereunder (subject to sufficient funds being available in its
accounts for that purpose).
(g) Administrative Agent shall deem any payment by or on behalf
of Company hereunder that is not made in same day funds prior to 12:00 p.m.
(New York City time) to be a non-conforming payment. Any such payment shall
not be deemed to have been received by Administrative Agent until the later of
(i) the time such funds become available funds, and (ii) the applicable next
Business Day. Administrative Agent shall give prompt written notice to Company
and each applicable Lender (it being understood that electronic notice shall
constitute a writing) if any payment is non-conforming. Any non-conforming
payment may constitute or become a Default or Event of Default in accordance
with the terms of Section 8.1(a). Interest shall continue to accrue on any
principal as to which a non-conforming payment is made until such funds become
available funds (but in no event less than the period from the date of such
payment to the next succeeding applicable Business Day) at the rate determined
pursuant to Section 2.10 from the date such amount was due and payable until
the date such amount is paid in full.
(h) If an Event of Default shall have occurred and not
otherwise been waived, and the maturity of the Obligations shall have been
accelerated pursuant to Section 8.1, all payments or proceeds received by
Agents hereunder in respect of any of the Obligations, shall be applied in
accordance with the application arrangements described in Section 6.5 of the
Pledge and Security Agreement.
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2.19. RATABLE SHARING
. Lenders hereby agree among themselves that, except as otherwise
provided in the Collateral Documents with respect to amounts realized from the
exercise of rights with respect to Liens on the Collateral, if any of them
shall, whether by voluntary payment (other than a voluntary prepayment of Loans
made and applied in accordance with the terms hereof), through the exercise of
any right of set-off or banker's lien, by counterclaim or cross action or by
the enforcement of any right under the Credit Documents or otherwise, or as
adequate protection of a deposit treated as cash collateral under the
Bankruptcy Code, receive payment or reduction of a proportion of the aggregate
amount of principal, interest, amounts payable in respect of Letters of Credit,
fees and other amounts then due and owing to such Lender hereunder or under the
other Credit Documents (collectively, the "AGGREGATE AMOUNTS DUE" to such
Lender) which is greater than the proportion received by any other Lender in
respect of the Aggregate Amounts Due to such other Lender, then the Lender
receiving such proportionately greater payment shall (a) notify Administrative
Agent and each other Lender of the receipt of such payment and (b) apply a
portion of such payment to purchase participations (which it shall be deemed to
have purchased from each seller of a participation simultaneously upon the
receipt by such seller of its portion of such payment) in the Aggregate Amounts
Due to the other Lenders so that all such recoveries of Aggregate Amounts Due
shall be shared by all Lenders in proportion to the Aggregate Amounts Due to
them; provided, if all or part of such proportionately greater payment received
by such purchasing Lender is thereafter recovered from such Lender upon the
bankruptcy or reorganization of Company or otherwise, those purchases shall be
rescinded and the purchase prices paid for such participations shall be
returned to such purchasing Lender ratably to the extent of such recovery, but
without interest. Company expressly consents to the foregoing arrangement and
agrees that any holder of a participation so purchased may exercise any and all
rights of banker's lien, set-off or counterclaim with respect to any and all
monies owing by Company to that holder with respect thereto as fully as if that
holder were owed the amount of the participation held by that holder.
2.20. MAKING OR MAINTAINING EURODOLLAR RATE LOANS
.
(a) Inability to Determine Applicable Interest Rate. In the
event that Administrative Agent shall have determined (which determination
shall be final and conclusive and binding upon all parties hereto absent
manifest error), on any Interest Rate Determination Date with respect to any
Eurodollar Rate Loans, that by reason of circumstances affecting the London
interbank market adequate and reasonable means do not exist for ascertaining
the interest rate applicable to such Loans on the basis provided for in the
definition of Adjusted Eurodollar Rate, Administrative Agent shall on such date
give written notice (it being understood that electronic notice shall
constitute a writing) to Company and each Lender of such determination,
whereupon (i) no Loans may be made as, or converted to, Eurodollar Rate Loans
until such time as Administrative Agent notifies Company and Lenders that the
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circumstances giving rise to such notice no longer exist, and (ii) any Funding
Notice or Conversion/Continuation Notice given by Company with respect to the
Loans in respect of which such determination was made shall be deemed to be
rescinded by Company.
(b) Illegality or Impracticability of Eurodollar Rate Loans.
In the event that on any date any Lender shall have determined (which
determination shall be final and conclusive and binding upon all parties hereto
but shall be made only after consultation with Company and Administrative
Agent) that the making, maintaining or continuation of its Eurodollar Rate
Loans (i) has become unlawful as a result of compliance by such Lender in good
faith with any law, treaty, governmental rule, regulation, guideline or order
(or would conflict with any such treaty, governmental rule, regulation,
guideline or order not having the force of law even though the failure to
comply therewith would not be unlawful), or (ii) has become impracticable, as a
result of contingencies occurring after the date hereof which materially and
adversely affect the London interbank market or the position of such Lender in
that market, then, and in any such event, such Lender shall be an "AFFECTED
LENDER" and it shall on that day give notice (by telefacsimile or by telephone
confirmed in writing) to Company and Administrative Agent of such determination
(which notice Administrative Agent shall promptly transmit to each other
Lender). Thereafter (1) the obligation of the Affected Lender to make Loans
as, or to convert Loans to, Eurodollar Rate Loans shall be suspended until such
notice shall be withdrawn by the Affected Lender, (2) to the extent such
determination by the Affected Lender relates to a Eurodollar Rate Loan then
being requested by Company pursuant to a Funding Notice or a
Conversion/Continuation Notice, the Affected Lender shall make such Loan as (or
continue such Loan as or convert such Loan to, as the case may be) a Base Rate
Loan, (3) the Affected Lender's obligation to maintain its outstanding
Eurodollar Rate Loans (the "AFFECTED LOANS") shall be terminated at the earlier
to occur of the expiration of the Interest Period then in effect with respect
to the Affected Loans or when required by law, and (4) the Affected Loans shall
automatically convert into Base Rate Loans on the date of such termination.
Notwithstanding the foregoing, to the extent a determination by an Affected
Lender as described above relates to a Eurodollar Rate Loan then being
requested by Company pursuant to a Funding Notice or a Conversion/Continuation
Notice, Company shall have the option, subject to the provisions of Section
2.20(c), to rescind such Funding Notice or Conversion/Continuation Notice as to
all Lenders by giving notice (by telefacsimile or by telephone confirmed in
writing) to Administrative Agent of such rescission on the date on which the
Affected Lender gives notice of its determination as described above (which
notice of rescission Administrative Agent shall promptly transmit to each other
Lender). Except as provided in the immediately preceding sentence, nothing in
this Section 2.20(b) shall affect the obligation of any Lender other than an
Affected Lender to make or maintain Loans as, or to convert Loans to,
Eurodollar Rate Loans in accordance with the terms hereof.
(c) Compensation for Breakage or Non-Commencement of Interest
Periods. Company shall compensate each Lender, upon written request by such
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Lender (which request shall set forth the basis for requesting such amounts),
for all reasonable losses, expenses and liabilities (including any interest
paid by such Lender to lenders of funds borrowed by it to make or carry its
Eurodollar Rate Loans and any loss, expense or liability sustained by such
Lender in connection with the liquidation or re-employment of such funds but
excluding loss of anticipated profits) which such Lender may sustain: (i) if
for any reason (other than a default by such Lender) a borrowing of any
Eurodollar Rate Loan does not occur on a date specified therefor in a Funding
Notice or a telephonic request for borrowing, or a conversion to or
continuation of any Eurodollar Rate Loan does not occur on a date specified
therefor in a Conversion/Continuation Notice or a telephonic request for
conversion or continuation; (ii) if any prepayment or other principal payment
or any conversion of any of its Eurodollar Rate Loans occurs on a date prior to
the last day of an Interest Period applicable to that Loan (including, without
limitation, pursuant to Section 2.15 hereof); or (iii) if any prepayment of any
of its Eurodollar Rate Loans is not made on any date specified in a notice of
prepayment given by Company.
(d) Booking of Eurodollar Rate Loans. Any Lender may make,
carry or transfer Eurodollar Rate Loans at, to, or for the account of any of
its branch offices or the office of an Affiliate of such Lender.
(e) Assumptions Concerning Funding of Eurodollar Rate Loans.
Calculation of all amounts payable to a Lender under this Section 2.20 and
under Section 2.21 shall be made as though such Lender had actually funded each
of its relevant Eurodollar Rate Loans through the purchase of a Eurodollar
deposit bearing interest at the rate obtained pursuant to clause (i) of the
definition of Adjusted Eurodollar Rate in an amount equal to the amount of such
Eurodollar Rate Loan and having a maturity comparable to the relevant Interest
Period and through the transfer of such Eurodollar deposit from an offshore
office of such Lender to a domestic office of such Lender in the United States
of America; provided, however, each Lender may fund each of its Eurodollar Rate
Loans in any manner it sees fit and the foregoing assumptions shall be utilized
only for the purposes of calculating amounts payable under this Section 2.20
and under Section 2.21.
2.21. INCREASED COSTS; CAPITAL ADEQUACY
.
(a) Compensation For Increased Costs and Taxes. Subject to the
provisions of Section 2.21, in the event that any Lender (which term shall
include each Issuing Bank for purposes of this Section 2.21(a)) shall determine
(which determination shall, absent manifest error, be final and conclusive and
binding upon all parties hereto) that any law, treaty or governmental rule,
regulation or order, or any change therein or in the interpretation,
administration or application thereof (including the introduction of any new
law, treaty or governmental rule, regulation or order), or any determination of
a court or governmental authority, in each case that becomes effective after
the date hereof, or compliance by such Lender with any guideline, request or
directive issued or made after the date hereof by any central bank or other
governmental or quasi-governmental authority (whether or not having the force
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of law): (i) subjects such Lender (or its applicable lending office) to any
additional Tax (other than any Excluded Tax) with respect to this Agreement or
any of the other Credit Documents or any of its obligations hereunder or
thereunder or any payments to such Lender (or its applicable lending office) of
principal, interest, fees or any other amount payable hereunder; (ii) imposes,
modifies or holds applicable any reserve (including any marginal, emergency,
supplemental, special or other reserve), special deposit, compulsory loan, FDIC
insurance or similar requirement against assets held by, or deposits or other
liabilities in or for the account of, or advances or loans by, or other credit
extended by, or any other acquisition of funds by, any office of such Lender
(other than any such reserve or other requirements with respect to Eurodollar
Rate Loans that are reflected in the definition of Adjusted Eurodollar Rate);
or (iii) imposes any other condition (other than with respect to a Tax matter)
on or affecting such Lender (or its applicable lending office) or its
obligations hereunder or the London interbank market; and the result of any of
the foregoing is to increase the cost to such Lender of agreeing to make,
making or maintaining Loans hereunder or to reduce any amount received or
receivable by such Lender (or its applicable lending office) with respect
thereto; then, in any such case, Company shall promptly pay to such Lender,
upon receipt of the statement referred to in the next sentence, such additional
amount or amounts (in the form of an increased rate of, or a different method
of calculating, interest or otherwise as such Lender in its sole discretion
shall determine) as may be necessary to compensate such Lender for any such
increased cost or reduction in amounts received or receivable hereunder. Such
Lender shall deliver to Company (with a copy to Administrative Agent) a written
statement, setting forth in reasonable detail the basis for calculating the
additional amounts owed to such Lender under this Section 2.21(a), which
statement shall be conclusive and binding upon all parties hereto absent
manifest error.
(b) Capital Adequacy Adjustment. In the event that any Lender
shall have determined that the adoption, effectiveness, phase-in or
applicability after the Original Closing Date of any law, rule or regulation
(or any provision thereof) regarding capital adequacy, or any change therein or
in the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its applicable lending
office) with any guideline, request or directive regarding capital adequacy
(whether or not having the force of law) of any such Governmental Authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on the capital of such Lender or any corporation controlling
such Lender as a consequence of, or with reference to, such Lender's Loans or
Commitments or Letters of Credit, or participations therein or other
obligations hereunder with respect to the Loans or the Letters of Credit to a
level below that which such Lender or such controlling corporation could have
achieved but for such adoption, effectiveness, phase-in, applicability, change
or compliance (taking into consideration the policies of such Lender or such
controlling corporation with regard to capital adequacy), then from time to
time, within five Business Days after receipt by Company from such Lender of
the statement referred to in the next sentence, Company shall pay to such
Lender such additional amount or amounts as will compensate such Lender or such
controlling corporation on an after-tax basis for such reduction. Such Lender
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shall deliver to Company (with a copy to Administrative Agent) a written
statement, setting forth in reasonable detail the basis for calculating the
additional amounts owed to Lender under this Section 2.21(b), which statement
shall be conclusive and binding upon all parties hereto absent manifest error.
2.22. TAXES; WITHHOLDING, ETC
.
(a) Payments to Be Free and Clear. All sums payable by any
Credit Party hereunder and under the other Credit Documents shall (except to
the extent required by law) be paid free and clear of, and without any
deduction or withholding on account of, any Tax (other than any Excluded Tax)
imposed, levied, collected, withheld or assessed by or within the United States
of America or any political subdivision in or of the United States of America
or any other jurisdiction from or to which a payment is made by or on behalf of
any Credit Party or by any federation or organization of which the United
States of America or any such jurisdiction is a member at the time of payment.
(b) Withholding of Taxes. If any Credit Party or any other
Person is required by law to make any deduction or withholding on account of
any Tax from any sum paid or payable by any Credit Party to Administrative
Agent or any Lender under any of the Credit Documents: (i) Company shall notify
Administrative Agent of any such requirement or any change in any such
requirement as soon as Company becomes aware of it; (ii) Company shall pay any
such Tax before the date on which penalties attach thereto, such payment to be
made (if the liability to pay is imposed on any Credit Party) for its own
account or (if that liability is imposed on Administrative Agent or such
Lender, as the case may be) on behalf of and in the name of Administrative
Agent or such Lender; (iii) except with respect to any Excluded Tax, the sum
payable by such Credit Party in respect of which the relevant deduction,
withholding or payment is required shall be increased to the extent necessary
to ensure that, after the making of that deduction, withholding or payment,
Administrative Agent or such Lender, as the case may be, receives on the due
date a net sum equal to what it would have received had no such deduction,
withholding or payment been required or made; and (iv) within thirty days after
paying any sum from which it is required by law to make any deduction or
withholding, and within thirty days after the due date of payment of any Tax
which it is required by clause (ii) above to pay, Company shall deliver to
Administrative Agent evidence satisfactory to the other affected parties of
such deduction, withholding or payment and of the remittance thereof to the
relevant taxing or other authority, provided, however, that no additional
amount shall be required to be paid to any Lender under clause (iii) above
except to the extent that any change after the Lender Effective Date in any
such requirement for a deduction, withholding or payment as is mentioned
therein shall result in an increase in the rate of such deduction, withholding
or payment from that in effect at the Lender Effective Date in respect of
payments to such Lender.
(c) Evidence of Exemption From U.S. Withholding Tax. Except to
the extent such deliveries have already been made by any Lender pursuant to the
Original Agreement, the 2003 Credit Agreement or the Existing Agreement and
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such previously delivered forms continue to be accurate, (i) each Lender that
is not a United States Person (as such term is defined in Section 7701(a)(30)
of the Internal Revenue Code) for U.S. federal income tax purposes (a "NON-US
LENDER") shall deliver to Administrative Agent for transmission to Company, on
or prior to the 2004 Effective Date (in the case of each Lender listed on the
signature pages of the Existing Agreement on the 2004 Effective Date), on or
prior to the Second Amendment Effective Date (in the case of each Lender listed
on the signature pages to the Amendment) or on or prior to the date of the
Assignment Agreement pursuant to which it becomes a Lender (in the case of each
other Lender), upon designation of a new lending office, and at such other
times as may be necessary in the determination of Company or Administrative
Agent (each in the reasonable exercise of its discretion), two original copies
of Internal Revenue Service Form W-8BEN or W-8ECI (or any successor forms),
properly completed and duly executed by such Lender, and such other
documentation required under the Internal Revenue Code, or regulations or
administrative pronouncements promulgated thereunder, and reasonably requested
by Company to establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect to any payments to
such Lender of principal, interest, fees or other amounts payable under any of
the Credit Documents; (ii) each Lender that is a United States Person (as such
term is defined in Section 7701(a)(30) of the Internal Revenue Code) for U.S.
federal income tax purposes, and that is not a person which the Company is
entitled to treat as an "exempt recipient" (as such term is defined in
Section 1.6049-4(c)(ii) of the United States Treasury Regulations) without
receiving a certificate from such person (under current law, including, but not
limited to any person whose name includes the terms "Incorporated", "Inc.",
"Corporation", "Corp.", "P.C.", "insurance company", "indemnity company",
"reinsurance company", "assurance company", "bank", "savings and loan
association", "buildings and loan association", "homestead association",
"credit union" or "industrial loan association" and their permitted foreign
language equivalents, and any entity that is generally known in the investment
community to be registered at all times during the taxable year under the
Investment Company Act of 1940) (a "US LENDER") shall deliver to the
Administrative Agent for transmission to the Company, on or prior to the 2004
Effective Date (in the case of each US Lender listed on the signature pages of
the Existing Agreement, on the 2004 Effective Date), on or prior to the Second
Amendment Effective Date (in the case of each US Lender listed on the signature
pages to the Amendment) or on or prior to the date of the Assignment Agreement
pursuant to which it becomes a US Lender (in the case of each other US Lender),
and at such other times as may be necessary in the determination of the Company
or Administrative Agent (each in the reasonable exercise of its discretion),
two original copies of Internal Revenue Service Form W-9 (or any successor
forms), properly completed and duly executed by such US Lender, and such other
documentation reasonably requested by the Company, to establish that such US
Lender is not subject to deduction or withholding of United States federal
income tax with respect to any payments to such US Lender of principal,
interest, fees or other amounts payable under any of the Credit Documents; or
(iii) if such Lender is not a "bank" or other Person described in
Section 881(c)(3) of the Internal Revenue Code and cannot deliver either
Internal Revenue Service Form W-8BEN or W-8ECI pursuant to clause (i) above, a
Certificate re Non-Bank Status together with two original copies of Internal
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Revenue Service Form W-8 (or any successor form), properly completed and duly
executed by such Lender, and such other documentation reasonably requested by
Company or Administrative Agent to establish that such Lender is not subject to
deduction or withholding of United States federal income tax with respect to
any payments to such Lender of interest payable under any of the Credit
Documents. Each Lender required to deliver any forms, certificates or other
evidence with respect to United States federal income tax withholding matters
pursuant to this Section 2.22(c) hereby agrees, from time to time after the
initial time for delivery or potential delivery by such Lender of such forms,
certificates or other evidence, whenever a lapse in time or change in
circumstances renders such forms, certificates or other evidence obsolete or
inaccurate in any material respect, that such Lender shall promptly deliver to
Administrative Agent for transmission to Company two new original copies of
Internal Revenue Service Form W-8BEN or W-8ECI (or any successor forms), or a
Certificate re Non-Bank Status (or any successor forms) and two original copies
of Internal Revenue Service Form W-8 or two original copies of Internal Revenue
Service Form W-9, as the case may be (or any successor forms), properly
completed and duly executed by such Lender, and such other documentation
reasonably requested by Company or Administrative Agent to confirm or establish
that such Lender is not subject to deduction or withholding of United States
federal income tax with respect to payments to such Lender under the Credit
Documents, or notify Administrative Agent and Company of its inability to
deliver any such forms, certificates or other evidence. Company shall not be
required to pay any additional amount to any U.S. Lender or Non-US Lender under
Section 2.22(b)(iii) if such Lender shall have failed (1) to deliver the forms,
certificates or other evidence referred to in the second sentence of this
Section 2.22(c), or (2) to notify Administrative Agent and Company of its
inability to deliver any such forms, certificates or other evidence, as the
case may be; provided, if such Lender shall have satisfied the requirements of
the first sentence of this Section 2.22(c) on the 2004 Effective Date, the
Second Amendment Effective Date or on the date of the Assignment Agreement
pursuant to which it became a Lender, as applicable, nothing in this last
sentence of Section 2.22(c) shall relieve Company of its obligation to pay any
additional amounts pursuant to Section 2.21(a) or Section 2.22(b) in the event
that, as a result of any change in any applicable law, treaty or governmental
rule, regulation or order, or any change in the interpretation, administration
or application thereof, such Lender is no longer properly entitled to deliver
forms, certificates or other evidence at a subsequent date establishing the
fact that such Lender is not subject to withholding as described herein. Each
US Lender and Non-US Lender hereby agrees to indemnify and hold harmless the
Company from and against any Taxes imposed on or behalf of the United States or
any taxing jurisdiction thereof, and any interest, penalties or additions
thereto, or costs incurred in connection therewith, incurred or payable by the
Company as a result of the failure of the Company to comply with its
obligations to deduct or withhold any Taxes imposed by or on behalf of the
United States or any taxing jurisdiction thereof from any payments made
pursuant to this Agreement to such US Lender, Non-US Lender or the
Administrative Agent, which failure resulted from the Company's reliance on any
form, statement, certificate or other information provided to it by such Lender
pursuant to this Section 2.22 or by reason of such Lender being a "conduit
entity" within the meaning of U.S. Treasury Regulation Section 1.881-3 (or any
applicable successor provision).
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2.23. OBLIGATION TO MITIGATE
. Each Lender agrees that, as promptly as practicable after the
officer of such Lender responsible for administering its Commitments, Loans or
Letters of Credit, as the case may be, becomes aware of the occurrence of an
event or the existence of a condition that would cause such Lender to become an
Affected Lender or that would entitle such Lender to receive payments under
Section 2.20, 2.21 or 2.22, it will, to the extent not inconsistent with the
internal policies of such Lender and any applicable legal or regulatory
restrictions, use reasonable efforts to (a) make, issue, fund or maintain its
Commitments, Loans and Letters of Credit, including any Affected Loans, through
another office of such Lender, or (b) take such other measures as such Lender
may deem reasonable, if as a result thereof the circumstances which would cause
such Lender to be an Affected Lender would cease to exist or the additional
amounts which would otherwise be required to be paid to such Lender pursuant to
Section 2.20, 2.21 or 2.22 would be materially reduced and if, as determined by
such Lender in its sole discretion, the making, issuing, funding or maintaining
of such Commitments, Loans or Letters of Credit through such other office or in
accordance with such other measures, as the case may be, would not otherwise
adversely affect such Commitments, Loans or Letters of Credit or the interests
of such Lender; provided, such Lender will not be obligated to utilize such
other office pursuant to this Section 2.23 unless Company agrees to pay all
incremental expenses incurred by such Lender as a result of utilizing such
other office as described in clause (a) above. A certificate as to the amount
of any such expenses payable by Company pursuant to this Section 2.23 (setting
forth in reasonable detail the basis for requesting such amount) submitted by
such Lender to Company (with a copy to Administrative Agent) shall be
conclusive absent manifest error.
2.24. DEFAULTING LENDERS
. Anything contained herein to the contrary notwithstanding, in
the event that any Lender, at the direction or request of any regulatory agency
or authority, defaults (a "DEFAULTING LENDER") in its obligation to fund (a
"FUNDING DEFAULT") any Revolving Loan under Section 2.3(b)(iv) or its portion
of any unreimbursed payment under Section 2.5(e) (in each case, a "DEFAULTED
LOAN"), then (a) during any Default Period with respect to such Defaulting
Lender, such Defaulting Lender shall be deemed not to be a "Lender" for
purposes of voting on any matters (including the granting of any consents or
waivers) with respect to any of the Credit Documents; (b) to the extent
permitted by applicable law, until such time as the Default Excess with respect
to such Defaulting Lender shall have been reduced to zero, (i) any voluntary
prepayment of the Revolving Loans shall, if Company so directs at the time of
making such voluntary prepayment, be applied to the Revolving Loans of other
Lenders as if such Defaulting Lender had no Revolving Loans outstanding and the
Revolving Exposure of such Defaulting Lender were zero, and (ii) any mandatory
prepayment of the Revolving Loans shall, if Company so directs at the time of
making such mandatory prepayment, be applied to the Revolving Loans of other
Lenders (but not to the Revolving Loans of such Defaulting Lender) as if such
Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender, it
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being understood and agreed that Company shall be entitled to retain any
portion of any mandatory prepayment of the Revolving Loans that is not paid to
such Defaulting Lender solely as a result of the operation of the provisions of
this clause (b); (c) such Defaulting Lender's Revolving Commitment and
outstanding Revolving Loans and such Defaulting Lender's Pro Rata Share of the
Letter of Credit Usage shall be excluded for purposes of calculating the
Revolving Commitment fee payable to Lenders in respect of any day during any
Default Period with respect to such Defaulting Lender, and such Defaulting
Lender shall not be entitled to receive any Revolving Commitment fee pursuant
to Section 2.12 with respect to such Defaulting Lender's Revolving Commitment
in respect of any Default Period with respect to such Defaulting Lender; and
(d) the Total Utilization of Revolving Commitments as at any date of
determination shall be calculated as if such Defaulting Lender had funded all
Defaulted Loans of such Defaulting Lender. No Revolving Commitment of any
Lender shall be increased or otherwise affected, and, except as otherwise
expressly provided in this Section 2.24, performance by Company of its
obligations hereunder and the other Credit Documents shall not be excused or
otherwise modified as a result of any Funding Default or the operation of this
Section 2.24. The rights and remedies against a Defaulting Lender under this
Section 2.24 are in addition to other rights and remedies which Company may
have against such Defaulting Lender with respect to any Funding Default and
which Administrative Agent or any Lender may have against such Defaulting
Lender with respect to any Funding Default.
2.25. REMOVAL OR REPLACEMENT OF A LENDER
. Anything contained herein to the contrary notwithstanding, in
the event that: (a) any Lender (an "INCREASED-COST LENDER") shall give notice
to Company that such Lender is an Affected Lender or such Lender becomes
entitled to receive payments under Section 2.21 or 2.22, the circumstances
which have caused such Lender to be an Affected Lender or which entitle such
Lender to receive such payments shall remain in effect, and such Lender shall
fail to (i) withdraw such notice or (ii) waive in writing the right to receive
the applicable payments, in each of cases (i) and (ii), within five Business
Days after Company's request for such withdrawal or waiver; or (b) any Lender
shall become a Defaulting Lender, the Default Period for such Defaulting Lender
shall remain in effect, and such Defaulting Lender shall fail to cure the
default as a result of which it has become a Defaulting Lender within five
Business Days after Company's request that it cure such default; or (c) in
connection with any proposed amendment, modification, termination, waiver or
consent with respect to any of the provisions hereof as contemplated by Section
10.5(b), the consent of Requisite Lenders shall have been obtained but the
consent of one or more of such other Lenders (each a "NON-CONSENTING LENDER")
whose consent is required shall not have been obtained; then, with respect to
each such Increased-Cost Lender, Defaulting Lender or Non-Consenting Lender
(the "TERMINATED LENDER"), Company may, by giving written notice to
Administrative Agent and any Terminated Lender of its election to do so, elect
to cause such Terminated Lender (and such Terminated Lender hereby irrevocably
agrees) to assign its outstanding Loans and its Revolving Commitments, if any,
in full to one or more Eligible Assignees (each a "REPLACEMENT LENDER") in
accordance with the provisions of Section 10.6 and Terminated Lender shall pay
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any fees payable thereunder in connection with such assignment; provided, (1)
on the date of such assignment, the Replacement Lender shall pay to Terminated
Lender an amount equal to the sum of (A) an amount equal to the principal of,
and all accrued interest on, all outstanding Loans of the Terminated Lender,
(B) an amount equal to all unreimbursed drawings that have been funded by such
Terminated Lender, together with all then unpaid interest with respect thereto
at such time and (C) an amount equal to all accrued, but theretofore unpaid
fees owing to such Terminated Lender pursuant to Section 2.13; (2) on the date
of such assignment, Company shall pay any amounts payable to such Terminated
Lender pursuant to Section 2.20, 2.21 or 2.22 or otherwise as if it were a
prepayment; and (3) in the event such Terminated Lender is a Non-Consenting
Lender, each Replacement Lender shall consent, at the time of such assignment,
to each matter in respect of which such Terminated Lender was a Non-Consenting
Lender; provided, Company may not make such election with respect to any
Terminated Lender that is also an Issuing Bank unless, prior to the
effectiveness of such election, Company shall have caused each outstanding
Letter of Credit issued thereby to be cancelled. Upon the prepayment of all
amounts owing to any Terminated Lender and the termination of such Terminated
Lender's Revolving Commitments, if any, such Terminated Lender shall no longer
constitute a "Lender" for purposes hereof; provided, any rights of such
Terminated Lender to indemnification hereunder shall survive as to such
Terminated Lender.
SECTION 3. CONDITIONS PRECEDENT
3.1. ORIGINAL CLOSING DATE
. The obligation of any Lender to make a Credit Extension under
the Original Agreement on the Original Closing Date was subject to the
satisfaction, or waiver in accordance with Section 10.5, of the following
conditions on or before the Original Closing Date. Solely for purposes of the
historical conditions set forth in this Section 3.1, capitalized terms used in
this Section 3.1 and defined in the Original Agreement shall have the meanings
specified in the Original Agreement as applicable as of the Original Closing
Date.
(a) Credit Documents. Administrative Agent shall have received
sufficient copies of each Credit Document originally executed and delivered by
each applicable Credit Party for each Lender.
(b) Organizational Documents; Incumbency. Administrative Agent
shall have received (i) sufficient copies of each Organizational Document
executed and delivered by each Credit Party, as applicable, and, to the extent
applicable, certified as of a recent date by the appropriate governmental
official, for each Lender, each dated the Original Closing Date or a recent
date prior thereto; (ii) signature and incumbency certificates of the officers
of such Person executing the Credit Documents to which it is a party;
(iii) resolutions of the Board of Directors or similar governing body of each
Credit Party approving and authorizing the execution, delivery and performance
of the Original Agreement and the other Credit Documents and the Related
Agreements to which it is a party or by which it or its assets may be bound as
of the Original Closing Date, certified as of the Original Closing Date by its
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secretary or an assistant secretary as being in full force and effect without
modification or amendment; (iv) a good standing certificate from the applicable
Governmental Authority of each Credit Party's jurisdiction of incorporation,
organization or formation and in each jurisdiction in which it is qualified as
a foreign corporation or other entity to do business, each dated a recent date
prior to the Original Closing Date; and (v) such other documents as
Administrative Agent may reasonably request in writing.
(c) Organizational and Capital Structure. The organizational
structure and capital structure of Holdings and its Subsidiaries, both before
and after giving effect to the 2002 Merger, shall be as set forth on
Schedule 4.2.
(d) Issuance of Senior Subordinated Notes. On or before the
Original Closing Date:
(i) Company shall have received the gross proceeds from
the issuance of the Senior Subordinated Notes in an aggregate amount in
cash of not less than $250,000,000;
(ii) Company shall have delivered to Agents complete,
correct and conformed copies of the Senior Subordinated Note Documents;
and
(iii) Company shall have provided evidence satisfactory to
Agents that the proceeds of Senior Subordinated Notes have been
irrevocably committed, prior to the application of the proceeds of the
Term Loans (as defined in the Original Agreement) to be made on the
Original Closing Date, to the payment of the 2002 Merger Financing
Requirements (subject to the concurrent consummation of the 2002
Merger).
(e) Equity Financing. On or before the Original Closing Date,
Company shall have provided evidence satisfactory to Agents that the proceeds
of the Equity Financing have been irrevocably committed, prior to the
application of the proceeds of the Term Loans (as defined in the Original
Agreement) to be made on the Original Closing Date, to the payment of the 2002
Merger Financing Requirements (subject to the concurrent consummation of the
2002 Merger).
(f) Related Agreements. JPMCB shall have received a fully
executed or conformed copy of each Related Agreement and any documents executed
in connection therewith, together with copies of any opinions of counsel
delivered to the parties under the Related Agreements, accompanied by a letter
from each such counsel (to the extent not inconsistent with such counsel's
established internal policies) authorizing Lenders to rely upon such opinion to
the same extent as though it were addressed to Lenders. Each Related Agreement
shall be in full force and effect and no provision thereof shall have been
modified or waived in any respect determined by JPMCB to be material, in each
case without the consent of JPMCB.
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(g) Consummation of 2002 Merger and Other Transactions.
(i) All conditions to the 2002 Merger set forth in Article VIII of the 2002
Merger Agreement and related documents shall have been satisfied or the
fulfillment of any such conditions shall have been waived with the consent of
Administrative Agent and JPMCB; (ii) the 2002 Merger shall have become
effective in accordance with the terms of the 2002 Merger Agreement; (iii) the
other conditions set forth in Schedule 1.1(a) shall have been satisfied; and
(iv) the 2002 Merger Financing Requirements shall not exceed $848,800,000.
(h) Existing Guaranty Obligations. Except as set forth on
Schedule 6.1(g), on the Original Closing Date, Holdings and its Subsidiaries
shall have (i) extinguished all guaranty obligations of Company and its
Subsidiaries, and (ii) made arrangements satisfactory to JPMCB and
Administrative Agent with respect to the cancellation of any letters of credit
outstanding to support the obligations of Holdings and its Subsidiaries with
respect thereto.
(i) Existing Indebtedness. Except as set forth on Schedule
6.1(g), on the Original Closing Date, Holdings and its Subsidiaries shall have
(i) repaid in full all of their Indebtedness, (ii) terminated any commitments
to lend or make other extensions of credit thereunder, (iii) delivered to JPMCB
and Administrative Agent all documents or instruments necessary to release all
Liens securing any Indebtedness (other than in respect of Surviving
Indebtedness) of any of them or other obligations of Holdings and its
Subsidiaries thereunder being repaid on the Original Closing Date, and
(iv) made arrangements satisfactory to JPMCB and Administrative Agent with
respect to the cancellation of any letters of credit outstanding thereunder or
the issuance of Letters of Credit to support the obligations of Holdings and
its Subsidiaries with respect thereto.
(j) Transaction Costs. On or prior to the Original Closing
Date, Company shall have delivered to Administrative Agent Company's reasonable
best estimate of the Original Transaction Costs (other than fees payable to any
Agent).
(k) Governmental Authorizations and Consents. Each Credit
Party shall have obtained all Governmental Authorizations and all consents of
other Persons, in each case that are necessary in connection with the
transactions contemplated by the Credit Documents and the Related Agreements
and each of the foregoing shall be in full force and effect and in form and
substance reasonably satisfactory to JPMCB and Administrative Agent, except for
such registrations, consents, approvals, notices or actions the failure of
which to obtain, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect. All applicable waiting periods
shall have expired without any action being taken or threatened by any
competent authority which would restrain, prevent or otherwise impose adverse
conditions on the transactions contemplated by the Credit Documents or the
Related Agreements or the financing thereof and no action, request for stay,
petition for review or rehearing, reconsideration, or appeal with respect to
any of the foregoing shall be pending, and the time for any applicable agency
to take action to set aside its consent on its own motion shall have expired.
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(l) Real Estate Assets. In order to create in favor of
Collateral Agent, for the benefit of Secured Parties, a valid and, subject to
any filing and/or recording referred to herein, perfected First Priority
security interest in each Material Real Estate Asset, Collateral Agent shall
have received from Company and each applicable Guarantor:
(i) fully executed and notarized Mortgages, in proper
form for recording in all appropriate places in all applicable
jurisdictions, encumbering each Real Estate Asset listed in
Schedule 3.1(l) (each, an "ORIGINAL CLOSING DATE MORTGAGED PROPERTY");
(ii) an opinion of counsel (which counsel shall be
reasonably satisfactory to Collateral Agent) in each state in which an
Original Closing Date Mortgaged Property is located with respect to the
enforceability of the form(s) of Mortgages to be recorded in such state
and such other matters as Collateral Agent may reasonably request, in
each case in form and substance reasonably satisfactory to Collateral
Agent;
(iii) in the case of each Leasehold Property that is an
Original Closing Date Mortgaged Property, (1) a Landlord's Consent,
Estoppel Certificate and Amendment and (2) evidence that such Leasehold
Property is a Recorded Leasehold Interest;
(iv) (A) ALTA mortgagee title insurance policies (or other
policies available in such state and reasonably satisfactory to
Collateral Agent) or unconditional commitments therefor issued by one or
more title companies reasonably satisfactory to Collateral Agent with
respect to each Original Closing Date Mortgaged Property (each, an
"ORIGINAL TITLE POLICY"), in amounts not less than the fair market value
of each Original Closing Date Mortgaged Property, together with a title
report issued by a title company with respect thereto, dated not more
than thirty days prior to the Original Closing Date and copies of all
recorded documents listed as exceptions to title or otherwise referred
to therein, each in form and substance reasonably satisfactory to
Collateral Agent and (B) evidence satisfactory to Collateral Agent that
such Credit Party has paid to the title company or to the appropriate
governmental authorities all expenses and premiums of the title company
and all other sums required in connection with the issuance of each
Original Title Policy and all recording and stamp taxes (including
mortgage recording and intangible taxes) payable in connection with
recording the Mortgages for each Original Closing Date Mortgaged
Property in the appropriate real estate records;
(v) evidence of flood insurance with respect to each
Flood Hazard Property that is located in a community that participates
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in the National Flood Insurance Program, in each case in compliance with
any applicable regulations of the Board of Governors of the Federal
Reserve System, in form and substance reasonably satisfactory to
Collateral Agent;
(vi) ALTA/ACSM surveys (or any other surveys available in
such state and reasonably satisfactory to Collateral Agent) of all
Original Closing Date Mortgaged Properties, certified to Collateral
Agent and dated not more than thirty days prior to the Original Closing
Date and in form and substance reasonably satisfactory to Collateral
Agent;
(vii) fully executed UCC-1 fixture filings for filing in
each location Collateral Agent reasonably determines to be appropriate;
and
(viii)an appraisal of each Original Closing Date Mortgaged
Property in form and substance reasonably acceptable to Collateral
Agent.
(m) Other Collateral. In order to create in favor of
Collateral Agent, for the benefit of Secured Parties, a valid, perfected First
Priority security interest in the Collateral (other than Real Estate Assets),
Collateral Agent shall have received:
(i) evidence satisfactory to the Collateral Agent of the
compliance by each Credit Party of their obligations under the Pledge
and Security Agreement and the other Collateral Documents (including,
without limitation, their obligations to deliver UCC financing
statements, originals of securities, instruments and chattel paper and
any agreements governing deposit and/or securities accounts as provided
therein);
(ii) A completed Collateral Questionnaire dated the
Original Closing Date and executed by an Authorized Officer of each
Credit Party, together with all attachments contemplated thereby,
including (A) the results of a recent search, by a Person reasonably
satisfactory to Collateral Agent, of all effective UCC financing
statements made with respect to any property, the creation of security
interests in which is governed by the UCC, of any Credit Party in the
jurisdictions specified in the Collateral Questionnaire, together with
copies of all such filings disclosed by such search, and (B) UCC
termination statements duly executed by all applicable Persons for
filing in all applicable jurisdictions as may be necessary to terminate
any effective UCC financing statements disclosed in such search (other
than any such financing statements in respect of Permitted Liens); and
(iii) opinions of counsel (which counsel shall reasonably
be satisfactory to Collateral Agent) with respect to the creation and
perfection of the security interests in favor of Collateral Agent in
such Collateral and such other matters governed by the laws of each
jurisdiction in which any Credit Party or any such Collateral is located
as Collateral Agent may reasonably request, in each case in form and
substance reasonably satisfactory to Collateral Agent.
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(n) Collateral Matters. Each of the Administrative Agent and
the Collateral Agent shall have received evidence that each Credit Party shall
have taken or caused to be taken any other action, executed and delivered or
caused to be executed and delivered any other agreement, document and
instrument and made or caused to be made any other filing and recording (other
than as set forth herein) reasonably required by Collateral Agent.
(o) Financial Statements; Projections. Lenders shall have
received from Holdings (i) certain historical financial statements (as more
fully set forth in the Original Agreement), (ii) pro forma consolidated and
consolidating balance sheets of Holdings and its Subsidiaries as at the
Original Closing Date, and reflecting the consummation of the 2002 Merger, the
related financings and the other transactions contemplated by the Credit
Documents to occur on or prior to the Original Closing Date, which pro forma
financial statements shall be in form and substance satisfactory to
Administrative Agent and JPMCB, (iii) projections of Holdings and its
Subsidiaries for the period beginning with Fiscal Year 2003 through and
including Fiscal Year 2010, and (iv) if the Original Closing Date has not
occurred on or prior to August 15, 2002, a certificate of the Chief Financial
Officer of Holdings certifying that the Consolidated Adjusted EBITDA for the
four Fiscal Quarters ended on June 30, 2002 is not less than $114.2 million
determined on a pro forma basis after giving effect to the 2002 Merger, the
related financings and the other transactions contemplated by the Related
Agreements to occur on or prior to the Original Closing Date.
(p) Evidence of Insurance. Each of JPMCB and Administrative
Agent shall have received a certificate from Company's insurance broker or
other evidence satisfactory to it that all insurance required to be maintained
pursuant to Section 5.5 is in full force and effect and that Administrative
Agent, for the benefit of Lenders has been named as additional insured and
loss payee thereunder to the extent required under Section 5.5.
(q) Opinions of Counsel to Credit Parties. Lenders and their
respective counsel shall have received originally executed copies of the
favorable written opinions of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, counsel
for Credit Parties, in the form of Exhibit D and as to such other matters as
Administrative Agent or JPMCB may reasonably request, dated as of the Original
Closing Date and otherwise in form and substance reasonably satisfactory to
each of Administrative Agent and JPMCB (and each Credit Party hereby instructs
such counsel to deliver such opinions to Agents and Lenders).
(r) Opinions of Counsel to JPMCB. Lenders shall have received
originally executed copies of one or more favorable written opinions of
Xxxxxxxx & Xxxxxxxx, counsel to JPMCB, dated as of the Original Closing Date,
in form and substance reasonably satisfactory to each of JPMCB and
Administrative Agent.
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(s) Fees. Company shall have paid to the Agents, the fees
payable on the Original Closing Date referred to in Section 2.13(f).
(t) Original Closing Date Solvency Certificate; Solvency
Appraisal. On the Original Closing Date, JPMCB and Administrative Agent shall
have received (i) an Original Closing Date Solvency Certificate from the Chief
Financial Officer of Holdings on behalf of Company and (ii) an opinion from an
independent valuation consultant satisfactory to JPMCB and Administrative
Agent, each dated the Original Closing Date and addressed to JPMCB,
Administrative Agent and Lenders, and in form, scope and substance satisfactory
to JPMCB and Administrative Agent, with appropriate attachments and
demonstrating that after giving effect to the consummation of the 2002 Merger,
the related financings and the other transactions contemplated by the Related
Documents to occur on or prior to the Original Closing Date, Company and its
Subsidiaries are and will be Solvent.
(u) Original Closing Date Certificate. Holdings and Company
shall have delivered to JPMCB and Administrative Agent an originally executed
Original Closing Date Certificate, together with all attachments thereto.
(v) Original Closing Date. Lenders shall have made the Term
Loan (as defined in the Original Agreement) to Company on or before August 31,
2002.
(w) No Litigation. The representations and warranties set
forth in Sections 4.13 and 6.4 of the 2002 Merger Agreement (subject to the
exemptions and qualifications set forth therein) shall be true and correct as
of the Original Closing Date or compliance therewith as of the Original Closing
Date shall have been waived with the prior approval of JPMCB and Administrative
Agent.
(x) Completion of Proceedings. All partnership, corporate and
other proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Administrative Agent or JPMCB and its counsel shall be
satisfactory in form and substance to Administrative Agent and JPMCB and such
counsel, and Administrative Agent, JPMCB and such counsel shall have received
all such counterpart originals or certified copies of such documents as
Administrative Agent or JPMCB may reasonably request.
Each Lender, by delivering its signature page to the Original Agreement and
funding a Loan on the Original Closing Date, shall be deemed to have
acknowledged receipt of, and consented to and approved, each Credit Document
and each other document required to be approved by any Agent, Requisite Lenders
or Lenders, as applicable on the Original Closing Date.
3.2. CONDITIONS TO EACH CREDIT EXTENSION
.
(a) Conditions Precedent. The obligation of each Lender to
make any Loan, or each Issuing Bank to issue any Letter of Credit, on any
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Credit Date, including the Second Amendment Effective Date, are subject to the
satisfaction, or waiver in accordance with Section 10.5, of the following
conditions precedent:
(i) Administrative Agent shall have received a fully
executed and delivered Funding Notice or Issuance Notice, as the case
may be;
(ii) after making the Credit Extensions requested on such
Credit Date, the Total Utilization of Revolving Commitments shall not
exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and
warranties contained herein and in the other Credit Documents shall be
true and correct in all material respects on and as of that Credit Date
to the same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to an
earlier date, in which case such representations and warranties shall
have been true and correct in all material respects on and as of such
earlier date;
(iv) as of such Credit Date, no event shall have occurred
and be continuing or would result from the consummation of the
applicable Credit Extension that would constitute an Event of Default or
a Default;
(v) on or before the date of issuance of any Letter of
Credit, Administrative Agent shall have received all other information
required by the applicable Issuance Notice, and such other documents or
information as such Issuing Bank may reasonably require in connection
with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection
with the financing of a Permitted Acquisition (other than a Revolving
Loan on the Xxxxxx Acquisition Closing Date in an aggregate principal
amount not to exceed $10,000,000 used to pay Xxxxxx Acquisition
Financing Requirements), if (A) the aggregate amount of Permitted
Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of
Permitted Acquisition Expenses for Permitted Acquisitions for the
previous four Fiscal Quarters (together with any Permitted Acquisition
agreed to and not yet consummated) exceeds $20,000,000, then the Chief
Financial Officer of Holdings shall have delivered a Compliance
Certificate representing and warranting and otherwise demonstrating to
the satisfaction of Administrative Agent that, as of such Credit Date,
the Leverage Ratio as of the last day of the most recent Fiscal Quarter
for which financial statements have been delivered to the Lenders
pursuant to Section 5.1(a), determined on a pro forma basis in
accordance with Section 6.8(d) after giving effect to the proposed
Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal
Quarters ending on or prior to December 25, 2004; and 4.75:1.00 in
respect of subsequent Fiscal Quarters (for each Fiscal Quarter,
disregarding any increase in Consolidated Adjusted EBITDA that was
attributable to the application of the proceeds of the exercise of a
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Cure Right with respect to any Fiscal Quarter during a four Fiscal
Quarter period ended on the last day of such Fiscal Quarter).
Any Agent or Requisite Lenders shall be entitled, but not
obligated to, request and receive, prior to the making of any Credit Extension,
additional information reasonably satisfactory to the requesting party
confirming the satisfaction of any of the foregoing if, in the good faith
judgment of such Agent or Requisite Lender such request is warranted under the
circumstances.
(b) Notices. Any Notice shall be executed by an Authorized
Officer in a writing delivered to Administrative Agent. In lieu of delivering
a Notice, Company may give Administrative Agent telephonic notice by the
required time of any proposed borrowing, conversion/continuation or issuance of
a Letter of Credit, as the case may be; provided each such notice shall be
promptly confirmed in writing by delivery of the applicable Notice to
Administrative Agent on or before the applicable date of borrowing,
continuation/conversion or issuance. Neither Administrative Agent nor any
Lender shall incur any liability to Company in acting upon any telephonic
notice referred to above that Administrative Agent believes in good faith to
have been given by a duly authorized officer or other person authorized on
behalf of Company or for otherwise acting in good faith.
3.3. CONDITIONS TO THE 2004 EFFECTIVE DATE TERM LOAN COMMITMENTS
. The obligation of each Term Loan Lender to make a 2004
Effective Date Term Loan in the amount of such Lender's 2004 Effective Date
Term Loan Commitment as set forth in Annex A-1 of the Existing Agreement on the
2004 Effective Date became effective on August 9, 2004 (the "2004 EFFECTIVE
DATE") upon:
(a) the execution and delivery of counterpart signature pages
to the Existing Agreement by (i) 2004 Effective Date Term Loan Lenders holding
100% of the 2004 Effective Date Term Loan Commitments, and Lenders having
Revolving Exposure as of the 2004 Effective Date in excess of 50% the aggregate
Revolving Exposure of all Lenders and (ii) each Credit Party;
(b) the satisfaction of the conditions precedent set forth in
Section 3.2 in respect of the making of the 2004 Effective Date Term Loans on
the 2004 Effective Date;
(c) opinion of Fried Xxxxx Xxxxxx Xxxxxxx & Xxxxxxxx LLP in
respect of the Existing Agreement; and
(d) payment on or before the 2004 Effective Date of all fees to
Agents referred to in Section 2.13(f).
3.4. CONDITIONS TO THE NEW TERM LOAN COMMITMENTS ON THE SECOND
AMENDMENT EFFECTIVE DATE
. The obligation of any Lender to make a Credit Extension under
this Agreement on June 3, 2005 (the "SECOND AMENDMENT EFFECTIVE DATE") is
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subject to the satisfaction, or waiver in accordance with Section 10.5, of the
following conditions on or before the Second Amendment Effective Date:
(a) Credit Documents. Administrative Agent shall have received
(i) the Amendment, executed and delivered by a duly authorized officer of the
Company, Holdings, each other Guarantor, the Agents, the Requisite Lenders (as
defined in the Existing Agreement), the affected Lenders for the Revolving
Loan, and any Lenders in respect of the New Term Loans not party to the
Existing Agreement, (ii) if requested by any Lender making a New Term Loan on
the Second Amendment Effective Date, a Term Loan Note substantially in the form
of Exhibit B-1, (iii) the Reaffirmation and Counterpart Agreement, executed and
delivered by a duly authorized officer of each Grantor under the Pledge and
Security Agreement and each Guarantor and (iv) sufficient copies of each Credit
Document executed and delivered by each applicable Credit Party for each
Lender.
(b) Organizational Documents; Incumbency. Administrative Agent
shall have received (i) sufficient copies of each Organizational Document
executed and delivered by each Credit Party, as applicable, and, to the extent
applicable, certified as of a recent date by the appropriate governmental
official, for each Lender, each dated the Second Amendment Effective Date or a
recent date prior thereto; (ii) signature and incumbency certificates of the
officers of such Credit Party executing the Credit Documents to which it is a
party; (iii) resolutions of the Board of Directors or similar governing body of
each Credit Party approving and authorizing the execution, delivery and
performance of this Agreement and the other Credit Documents and the Xxxx
Acquisition Documents to which it is a party or by which it or its assets may
be bound as of the Second Amendment Effective Date, certified as of the Second
Amendment Effective Date by its secretary or an assistant secretary as being in
full force and effect without modification or amendment; (iv) a good standing
certificate from the applicable Governmental Authority of each Credit Party's
jurisdiction of incorporation, organization or formation and in each
jurisdiction in which it is qualified as a foreign corporation or other entity
to do business, each dated a recent date prior to the Second Amendment
Effective Date; and (v) such other documents as Administrative Agent may
reasonably request in writing.
(c) Consummation of Xxxx Acquisition and Other Transactions.
(i) The Xxxx Acquisition shall have become effective in accordance with the
terms of the Xxxx Merger Agreement in all material respects and (ii) all
conditions (other than immaterial conditions, with materiality to be decided in
the reasonable discretion of Co-Syndication Agents) to the Xxxx Acquisition set
forth in Article VI of the Xxxx Merger Agreement and related documents shall
have been satisfied or the fulfillment of any such conditions shall have been
waived with the consent of Co-Syndication Agents (such consent not to be
unreasonably withheld or delayed).
(d) Existing Indebtedness. Except as set forth on Schedule
6.1(g), on the Second Amendment Effective Date, concurrently with the
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consummation of the Xxxx Acquisition, (i) all Indebtedness of Xxxx and its
Subsidiaries shall have been repaid or repurchased in full, (ii) all
commitments relating thereto to lend or make other extensions of credit
thereunder will have been terminated any commitments, (iii) Co-Syndication
Agents and Administrative Agent shall have received all documents or
instruments necessary to release all Liens securing any Indebtedness of Xxxx
and its Subsidiaries (other than as set forth on Schedule 6.1(g)) or any other
obligations of Xxxx and its Subsidiaries being repaid on the Second Amendment
Effective Date, and (iv) arrangements satisfactory to Co-Syndication Agents and
Administrative Agent with respect to the cancellation of any letters of credit
outstanding under the Indebtedness of Xxxx and its Subsidiaries or the issuance
of Letters of Credit to support the obligations of Xxxx and its Subsidiaries
with respect thereto.
(e) Transaction Costs. On or prior to the Second Amendment
Effective Date, Company shall have delivered to Administrative Agent Company's
reasonable best estimate of the Transaction Costs (other than fees payable to
any Agent).
(f) Consents and Approvals. Each Credit Party shall have
obtained all third-party consents identified in Section 6.2(d) of the
disclosure schedule to the Xxxx Merger Agreement (provided, that if Xxxx
Sellers agree in writing in form and substance reasonably satisfactory to
Company to indemnify Company and Xxxx for any and all losses (which
indemnification shall not be subject to any cap, deductible or de minimis
limitations imposed on indemnification obligations under the Xxxx Merger
Agreement) that result from the failure to obtain each of such consents not
previously obtained, the foregoing condition shall be deemed satisfied with
respect to such consents), and the applicable waiting period under the Xxxx-
Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, shall have expired
or been terminated.
(g) Real Estate Assets. In order to create in favor of
Collateral Agent, for the benefit of Secured Parties, a valid and, subject to
any filing and/or recording referred to herein, perfected First Priority
security interest in each Material Real Estate Asset, Collateral Agent shall
have received from Company and each applicable Guarantor:
(i) fully executed and notarized Mortgages, in proper
form for recording in all appropriate places in all applicable
jurisdictions, encumbering each Material Real Estate Asset of Xxxx and
its Subsidiaries listed in Schedule 3.4(g) (each, a "SECOND AMENDMENT
EFFECTIVE DATE MORTGAGED PROPERTY");
(ii) Mortgage Modifications with respect to the Mortgages,
duly executed by the applicable Credit Party in appropriate form for
filing in all filing or recording offices that the Collateral Agent may
deem necessary or desirable in order to maintain a valid and subsisting
Lien subject only to Permitted Liens on the property described therein
in favor of the Collateral Agent for the benefit of the Secured Parties,
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together with the evidence of the insurance required by the terms of
each Mortgage (subject to such exceptions as may be acceptable to the
Collateral Agent);
(iii) an opinion of counsel (which counsel shall be
reasonably satisfactory to Collateral Agent) in each state in which a
Second Amendment Effective Date Mortgaged Property is located with
respect to the enforceability of the form(s) of Mortgages to be recorded
in such state and such other matters as Collateral Agent may reasonably
request, in each case in form and substance reasonably satisfactory to
Collateral Agent;
(iv) in the case of each Leasehold Property that is a
Second Amendment Effective Date Mortgaged Property, (1) a Landlord's
Consent, Estoppel Certificate and Amendment and (2) evidence that such
Leasehold Property is a Recorded Leasehold Interest; provided that if
Company could not, despite its use of commercially reasonable efforts,
procure the Landlord's Consent, Estoppel Certificate and Amendment with
respect to any such Leasehold Property, such Leasehold Property shall
not be deemed to be a Second Amendment Effective Date Mortgaged
Property;
(v) evidence of flood insurance with respect to each
Flood Hazard Property that is located in a community that participates
in the National Flood Insurance Program, in each case in compliance with
any applicable regulations of the Board of Governors of the Federal
Reserve System, in form and substance reasonably satisfactory to
Collateral Agent;
(vi) ALTA/ACSM surveys (or any other surveys available in
such state and reasonably satisfactory to Collateral Agent) of all
Second Amendment Effective Date Mortgaged Properties, certified to
Collateral Agent and dated not more than thirty days prior to the Second
Amendment Effective Date and in form and substance reasonably
satisfactory to Collateral Agent.
(vii) fully executed UCC-1 fixture filings for filing in
each location Collateral Agent reasonably determines to be appropriate;
and
(viii)an appraisal of each Second Amendment Effective Date
Mortgaged Property in form and substance reasonably acceptable to
Collateral Agent.
(h) Other Collateral. In order to create in favor of
Collateral Agent, for the benefit of Secured Parties, a valid, perfected First
Priority security interest in the Collateral consisting of the assets and
Capital Stock of Xxxx and its Subsidiaries (other than Real Estate Assets),
Collateral Agent shall have received with respect to assets and Capital Stock
of Xxxx and its Subsidiaries constituting Collateral:
(i) evidence satisfactory to the Collateral Agent (i) of
the compliance by each Credit Party of their obligations under the
Pledge and Security Agreement and the other Collateral Documents, (ii)
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that all filings, recordings, registrations and other actions
(including, without limitation, the filing of financing statements on
form UCC-1, the delivery of originals of securities, instruments and
chattel paper and any agreements governing deposit and/or securities
accounts) necessary to perfect the Liens created by the Collateral
Documents, have been filed, recorded, registered or taken or have been
delivered to the Collateral Agent for filing, recording, registration or
other action and (iii) that Collateral Agent, for the benefit of the
Secured Parties, has a perfected security interest in all of the
Collateral;
(ii) an updated Collateral Questionnaire dated the Second
Amendment Effective Date and executed by an Authorized Officer of each
Credit Party, together with all attachments contemplated thereby,
including (A) the results of a recent search, by a Person reasonably
satisfactory to Collateral Agent, of all effective UCC financing
statements made with respect to any property, the creation of security
interests in which is governed by the UCC, of any Credit Party in the
jurisdictions specified in the Collateral Questionnaire, together with
copies of all such filings disclosed by such search, and (B) UCC
termination statements duly executed by all applicable Persons for
filing in all applicable jurisdictions as may be necessary to terminate
any effective UCC financing statements disclosed in such search (other
than any such financing statements in respect of Permitted Liens);
(iii) opinions of counsel (which counsel shall reasonably
be satisfactory to Collateral Agent) with respect to the creation and
perfection of the security interests in favor of Collateral Agent in
such Collateral and such other matters governed by the laws of each
jurisdiction in which any Credit Party is located as Collateral Agent
may reasonably request, in each case in form and substance reasonably
satisfactory to Collateral Agent; and
(iv) evidence that each Credit Party has taken or caused
to be taken all other actions, and has executed and delivered or caused
to be executed and delivered all other agreements, documents and
instruments and has made or caused to be made all other filings and
recordings (other than as set forth herein) reasonably required by
Collateral Agent.
(i) Financial Statements; Projections. Lenders shall have
received from Holdings (i) as soon as available but in no event later than May
31, 2005, (x) pro forma consolidated and consolidating balance sheets of
Holdings and its Subsidiaries as of the last day of the Fiscal Quarter ended on
or about March 31, 2005 and (y) pro forma consolidated and consolidating income
statements, statements of cash flow and statements of shareholders' equity of
Holdings and its Subsidiaries for the fiscal quarter and for the twelve-month
period ended on or about March 31, 2005, in each case reflecting the
consummation of the Xxxx Acquisition, the related financings and the other
transactions contemplated by the Credit Documents and the Xxxx Acquisition
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Documents to occur on or prior to the Second Amendment Effective Date, or (ii)
if such pro forma financial statements for the twelve-month period ended on or
about March 31, 2005 are not available prior to May 31, 2005, then pro forma
consolidated and consolidating balance sheets of Holdings and its Subsidiaries
as of the last day of the Fiscal Year ended on or about December 31, 2004 and
(y) pro forma consolidated and consolidating income statements, statements of
cash flow and statements of shareholders' equity of Holdings and its
Subsidiaries for the twelve-month period ended on or about December 31, 2004,
in each case reflecting the consummation of the Xxxx Acquisition, the related
financings and the other transactions contemplated by the Credit Documents and
the Xxxx Acquisition Documents to occur on or prior to the Second Amendment
Effective Date, and in each of clauses (i) and (ii) above, such pro forma
financial statements shall be in form and substance reasonably satisfactory to
Co-Syndication Agents and shall meet the requirements of Regulation S-X for
registration statements to be filed with the United States Securities and
Exchange Commission on Form S-1 (except as waived in writing by Co-Syndication
Agents) and (iii) the Projections.
(j) Evidence of Insurance. Each of Co-Syndication Agents and
Administrative Agent shall have received a certificate from Company's insurance
broker or other evidence satisfactory to it that all insurance required to be
maintained pursuant to Section 5.5 is in full force and effect and that
Administrative Agent, for the benefit of Lenders has been named as additional
insured and loss payee thereunder to the extent required under Section 5.5.
(k) Opinions of Counsel to Credit Parties. Lenders and their
respective counsel shall have received originally executed copies of the
favorable written opinions of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, counsel
for Credit Parties, in the form of Exhibit D-1 and as to such other matters as
Administrative Agent or Co-Syndication Agents may reasonably request, dated as
of the Second Amendment Effective Date and otherwise in form and substance
reasonably satisfactory to each of Administrative Agent and Co-Syndication
Agents (and each Credit Party hereby instructs such counsel to deliver such
opinions to Agents and Lenders).
(l) Fees. Company shall have paid to the Agents, the fees
payable on the Second Amendment Effective Date referred to in Section 2.13(f).
(m) Second Amendment Effective Date Solvency Certificate. On
the Second Amendment Effective Date, Lenders shall have received a Second
Amendment Effective Date Solvency Certificate from the Chief Financial Officer
of Holdings on behalf of Company, dated the Second Amendment Effective Date and
addressed to Co-Syndication Agents, Administrative Agent and Lenders, and in
form, scope and substance reasonably satisfactory to Co-Syndication Agents,
with appropriate attachments and demonstrating that after giving effect to the
consummation of the Xxxx Acquisition, the financing of the Xxxx Acquisition
pursuant to this Agreement and the other transactions contemplated by the Xxxx
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Acquisition Documents to occur on or prior to the Second Amendment Effective
Date, Company and its Subsidiaries, on a consolidated basis, are and will be
Solvent.
(n) Second Amendment Effective Date Certificate. Holdings and
Company shall have delivered to Co-Syndication Agents and Administrative Agent
an originally executed Second Amendment Effective Date Certificate, together
with all attachments thereto.
(o) Credit Rating. The Term Loans provided for under this
Agreement shall have been assigned a credit rating by Xxxxx'x and S&P.
(p) Completion of Proceedings. All partnership, corporate and
other proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Administrative Agent or Co-Syndication Agents and their counsel
shall be satisfactory in form and substance to Administrative Agent and Co-
Syndication Agents and such counsel, and Administrative Agent, Co-Syndication
Agents and such counsel shall have received all such counterpart originals or
certified copies of such documents as Administrative Agent or Co-Syndication
Agents may reasonably request.
(q) Maximum Total Leverage. At the Second Amendment Effective
Date, the ratio of (x) pro forma Consolidated Total Debt of Holdings and its
Subsidiaries (after giving effect to the Xxxx Acquisition and the transactions
contemplated by the Credit Documents and the Xxxx Acquisition Documents) to (y)
pro forma Consolidated Adjusted EBITDA (after giving effect to the Xxxx
Acquisition and the transactions contemplated by the Credit Documents and the
Xxxx Acquisition Documents) shall not be greater than 5.50:1.00 for the latest
twelve-month period for which financial statements are then available.
(r) Amendments and Assignments to Existing Collateral
Documents. In order to create or maintain in favor of Collateral Agent, for
the benefit of Secured Parties, a valid, perfected First Priority security
interest in the Collateral (other than Real Estate Assets), Collateral Agent
shall have received such amendments, assignments and/or replacements of such
existing Collateral Documents, in each case in form and substance reasonably
satisfactory to, and as reasonably required by, Collateral Agent.
(s) Payment of Interest. Company shall have made payment on or
before the Second Amendment Effective Date of all accrued and unpaid interest
due pursuant to the terms of Section 2.1(b)(iii) of this Agreement.
Each Lender, by delivering its signature page to the Amendment and/or funding a
Loan on the Second Amendment Effective Date, shall be deemed to have
acknowledged receipt of, and consented to and approved, each Credit Document
and each other document required to be approved by any Agent, Requisite Lenders
or Lenders, as applicable on the Second Amendment Effective Date.
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3.5. EFFECT OF AGREEMENT ON OTHER CREDIT DOCUMENTS
. By its signature on the Existing Agreement or on the Amendment,
each Credit Party acknowledges and agrees that this Agreement is a valid
amendment of the Existing Agreement made in accordance with the terms thereof
and binding against such Credit Party and that each Credit Document (other than
this Agreement) shall continue to be valid and binding against such Credit
Party and its assets and properties as of and after the Second Amendment
Effective Date (with any references to the Existing Agreement in any such
Credit Document construed as references to this Agreement).
SECTION 4. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders and Issuing Bank to enter into this
Agreement and to make each Credit Extension to be made thereby, each Credit
Party represents and warrants to each Lender and Issuing Bank, on the Second
Amendment Effective Date and on each Credit Date, that the following statements
are true and correct, except to the extent any representation or warranty
relates to a specific date, in which case such statement shall be true and
correct as of such specific date.
4.1. ORGANIZATION; REQUISITE POWER AND AUTHORITY; QUALIFICATION
. Each of Holdings and its Subsidiaries (a) is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization as identified in Schedule 4.1, (b) has all requisite power and
authority to own and operate its properties, to carry on its business as now
conducted and as proposed to be conducted, to enter into the Credit Documents
to which it is a party and to carry out the transactions contemplated thereby,
and (c) is qualified to do business and in good standing in every jurisdiction
where its assets are located and wherever necessary to carry out its business
and operations, except in jurisdictions where the failure to be so qualified or
in good standing has not had, and could not reasonably be expected to have, a
Material Adverse Effect.
4.2. CAPITAL STOCK AND OWNERSHIP
. The Capital Stock of each of Holdings and its Subsidiaries has
been duly authorized and validly issued and is fully paid and non-assessable.
Except as set forth on Schedule 4.2, as of the Second Amendment Effective Date,
there is no existing option, warrant, call, right, commitment or other
agreement to which Holdings or any of its Subsidiaries is a party requiring,
and there is no Capital Stock of Holdings or any of its Subsidiaries
outstanding which upon conversion or exchange would require, the issuance by
Holdings or any of its Subsidiaries of any additional Capital Stock of Holdings
or any of its Subsidiaries or other Securities convertible into, exchangeable
for or evidencing the right to subscribe for or purchase, Capital Stock of
Holdings or any of its Subsidiaries. Schedule 4.2 correctly sets forth the
ownership interest of Holdings and each of its Subsidiaries in their respective
Subsidiaries as of the Second Amendment Effective Date.
4.3. DUE AUTHORIZATION
. The transactions contemplated by the Credit Documents are
within the corporate powers of each Credit Party and the execution, delivery
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and performance of the Credit Documents have been duly authorized by all
necessary action on the part of each Credit Party that is a party thereto.
4.4. GUARANTOR SUBSIDIARIES
. Schedule 4.4 correctly sets forth, as of the Second Amendment
Effective Date, all of Company's Guarantor Subsidiaries who are parties to this
Agreement.
4.5. NO CONFLICT
. The execution, delivery and performance by Credit Parties of
the Credit Documents to which they are parties and the consummation of the
transactions contemplated by the Credit Documents do not and will not (a)
violate any provision of any law or any governmental rule or regulation
applicable to Holdings or any of its Subsidiaries, any of the Organizational
Documents of Holdings or any of its Subsidiaries, or any order, judgment or
decree of any court or other agency of government binding on Holdings or any of
its Subsidiaries except to the extent such violation, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect;
(b) conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any Contractual Obligation of Holdings
or any of its Subsidiaries except to the extent such conflict, breach or
default, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect; (c) result in or require the creation or
imposition of any Lien upon any of the properties or assets of Holdings or any
of its Subsidiaries (other than any Liens created under any of the Credit
Documents in favor of Collateral Agent, on behalf of Secured Parties) except
to the extent that the creation or imposition of any such Liens, individually
or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect; or (d) require any approval of stockholders, members or
partners or any approval or consent of any Person under any Contractual
Obligation of Holdings or any of its Subsidiaries, except for such approvals or
consents which will be obtained on or before the Second Amendment Effective
Date and disclosed in writing to Lenders and except for any such approvals or
consents the failure of which to obtain, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
4.6. GOVERNMENTAL CONSENTS
. The execution, delivery and performance by Credit Parties of
the Credit Documents to which they are parties and the consummation of the
transactions contemplated by the Credit Documents do not and will not require
any registration with, consent or approval of, or notice to, or other action
to, with or by, any Governmental Authority, except for such registrations,
consents, approvals, notices or actions the failure of which to obtain,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
4.7. BINDING OBLIGATION
. Each Credit Document has been duly executed and delivered by
each Credit Party that is a party thereto and is the legally valid and binding
obligation of such Credit Party, enforceable against such Credit Party in
accordance with its respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
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4.8. HISTORICAL FINANCIAL STATEMENTS
. The Historical Financial Statements were prepared in conformity
with GAAP and fairly present, in all material respects, the financial position,
on a consolidated basis, of the Persons described in such financial statements
as at the respective dates thereof and the results of operations and cash
flows, on a consolidated basis, of the entities described therein for each of
the periods then ended, subject, in the case of any such unaudited financial
statements, to changes resulting from audit and normal year-end adjustments.
As of the Second Amendment Effective Date, neither Holdings nor any of its
Subsidiaries has any contingent liability or liability for taxes, long-term
lease or unusual forward or long-term commitment that is not reflected in the
Historical Financial Statements or the notes thereto and which in any such case
is material in relation to the business, operations, properties, assets,
condition (financial or otherwise) or prospects of Holdings and any of its
Subsidiaries taken as a whole.
4.9. PROJECTIONS
. On and as of the Second Amendment Effective Date, the
Projections of Holdings and its Subsidiaries for the period beginning with
Fiscal Year 2006 through and including Fiscal Year 2011 (the "PROJECTIONS") are
based on good faith estimates and reasonable assumptions made by the management
of Holdings; provided, the Projections are not to be viewed as facts and that
actual results during the period or periods covered by the Projections may
differ from such Projections and that the differences may be material; provided
further, as of the Second Amendment Effective Date, management of Holdings
believed that the Projections were reasonable and attainable.
4.10. NO MATERIAL ADVERSE CHANGE
. Since January 1, 2005 (and solely for purposes of determining
compliance with Sections 3.2 and 3.4 on the Second Amendment Effective Date
with respect to Xxxx and its Subsidiaries, December 31, 2004) no event,
circumstance or change has occurred that has caused or evidences, either in any
case or in the aggregate, a continuing Material Adverse Effect.
4.11. ADVERSE PROCEEDINGS, ETC
. There are no Adverse Proceedings, individually or in the
aggregate, that could reasonably be expected to have a Material Adverse Effect.
Neither Holdings nor any of its Subsidiaries (a) is in violation of any
applicable laws (including Environmental Laws) that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect, or
(b) is subject to or in default with respect to any final judgments, writs,
injunctions, decrees, rules or regulations of any court or any federal, state,
municipal or other governmental department, commission, board, bureau, agency
or instrumentality, domestic or foreign, that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
4.12. PAYMENT OF TAXES
. Except as otherwise permitted under Section 5.3, all material
tax returns and reports of Holdings and its Subsidiaries required to be filed
by any of them have been timely filed, and all taxes shown on such tax returns
to be due and payable and all material assessments, fees and other governmental
charges upon Holdings and its Subsidiaries and upon their respective
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properties, assets, income, businesses and franchises which are due and payable
have been paid when due and payable. Holdings knows of no proposed tax
assessment against Holdings or any of its Subsidiaries which is not being
actively contested by Holdings or such Subsidiary in good faith and by
appropriate proceedings; provided, such reserves or other appropriate
provisions, if any, as shall be required in conformity with GAAP shall have
been made or provided therefor.
4.13. PROPERTIES
.
(a) Title. Each of Holdings and its Subsidiaries has (i) good,
sufficient and legal title to (in the case of fee interests in real property),
(ii) valid leasehold interests in (in the case of leasehold interests in real
or personal property), and (iii) good title to (in the case of all other
personal property), all of their respective properties and assets reflected in
their respective Historical Financial Statements referred to in Section 4.8 and
in the most recent financial statements delivered pursuant to Section 5.1, in
each case except for assets disposed of since the date of such financial
statements in the ordinary course of business of Company and its Subsidiaries
or as otherwise permitted under Section 6.9. Except as permitted by this
Agreement, all such properties and assets are free and clear of Liens.
(b) Real Estate. As of the Second Amendment Effective Date,
Schedule 4.13 contains a true, accurate and complete list of (i) all Real
Estate Assets, and (ii) all leases, subleases or assignments of leases
(together with all amendments, modifications, supplements, renewals or
extensions of any thereof) affecting each Real Estate Asset of any Credit
Party, regardless of whether such Credit Party is the landlord or tenant
(whether directly or as an assignee or successor in interest) under such lease,
sublease or assignment. Each agreement listed in clause (ii) of the
immediately preceding sentence is in full force and effect and Holdings does
not have knowledge of any default that has occurred and is continuing
thereunder, and each such agreement constitutes the legally valid and binding
obligation of each applicable Credit Party, enforceable against such Credit
Party in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally or by equitable principles.
4.14. ENVIRONMENTAL MATTERS
. Except as set forth on Schedule 4.14, (i) neither Holdings nor
any of its Subsidiaries nor any of their respective Facilities or operations
are subject to any outstanding written order, consent decree or settlement
agreement with any Person relating to any Environmental Law, any Environmental
Claim, or any Hazardous Materials Activity, (ii) there are and, to each of
Holdings' and its Subsidiaries' knowledge, have been, no conditions,
occurrences, or Hazardous Materials Activities which could reasonably be
expected to form the basis of an Environmental Claim against Holdings or any of
its Subsidiaries, (iii) neither Holdings nor any of its Subsidiaries has
received any letter or request for information under Section 104 of the
Comprehensive Environmental Response, Compensation, and Liability Act (42
U.S.C. {section} 9604) or any comparable state law, in each of cases (i), (ii)
and (iii) that, if resolved adversely, individually or in the aggregate, could
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reasonably be expected to have a Material Adverse Effect. Compliance with all
current or reasonably foreseeable future requirements pursuant to or under
Environmental Laws could not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect. No event or condition has occurred
or is occurring with respect to Holdings or any of its Subsidiaries relating to
any applicable Environmental Law, any Release of Hazardous Materials, or any
Hazardous Materials Activity which individually or in the aggregate has had, or
could reasonably be expected to have, a Material Adverse Effect, other than the
events and conditions described on Schedule 4.14 as existing on or prior to the
Second Amendment Effective Date.
4.15. NO DEFAULTS
. Neither Holdings nor any of its Subsidiaries is in default in
the performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in any of its Contractual Obligations, and no condition
exists which, with the giving of notice or the lapse of time or both, could
constitute such a default, except where the consequences, direct or indirect,
of such default or defaults, if any, could not reasonably be expected to have a
Material Adverse Effect.
4.16. GOVERNMENTAL REGULATION
. Neither Holdings nor any of its Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act or the Investment Company Act of 1940 or under any other federal or
state statute or regulation which may limit its ability to incur Indebtedness
or which may otherwise render all or any portion of the Obligations
unenforceable. Neither Holdings nor any of its Subsidiaries is a "registered
investment company" or a company "controlled" by a "registered investment
company" or a "principal underwriter" of a "registered investment company" as
such terms are defined in the Investment Company Act of 1940.
4.17. MARGIN STOCK
. Neither Holdings nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any Margin Stock.
No part of the proceeds of the Loans made to such Credit Party will be used to
purchase or carry any such margin stock or to extend credit to others for the
purpose of purchasing or carrying any such margin stock or for any purpose that
violates, or is inconsistent with, the provisions of Regulation T, U or X of
the Board of Governors of the Federal Reserve System.
4.18. EMPLOYEE MATTERS
. Neither Holdings nor any of its Subsidiaries is engaged in any
unfair labor practice that could reasonably be expected to have a Material
Adverse Effect. There is (a) no unfair labor practice complaint pending
against Holdings or any of its Subsidiaries, or to the best knowledge of
Holdings and Company, threatened against any of them before the National Labor
Relations Board and no grievance or arbitration proceeding arising out of or
under any collective bargaining agreement that is so pending against Holdings
or any of its Subsidiaries or to the best knowledge of Holdings and Company,
threatened against any of them, (b) no strike or work stoppage in existence or
threatened involving Holdings or any of its Subsidiaries, and (c) to the best
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knowledge of Holdings and Company, no union representation question existing
with respect to the employees of Holdings or any of its Subsidiaries and, to
the best knowledge of Holdings and Company, no union organization activity that
is taking place, except (with respect to any matter specified in clause (a),
(b) or (c) above, either individually or in the aggregate) such as is not
reasonably likely to have a Material Adverse Effect.
4.19. EMPLOYEE BENEFIT PLANS
. Except as, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect, (i) Holdings, each of
its Subsidiaries and each of their respective ERISA Affiliates are in
substantial compliance with all applicable provisions and requirements of ERISA
and the Internal Revenue Code and the regulations and published interpretations
thereunder with respect to each Employee Benefit Plan, and have substantially
performed all their obligations under each Employee Benefit Plan, (ii) each
Employee Benefit Plan which is intended to qualify under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter from the
Internal Revenue Service indicating that such Employee Benefit Plan is so
qualified and nothing has occurred subsequent to the issuance of such
determination letter which would cause such Employee Benefit Plan to lose its
qualified status, (iii) no liability to the PBGC (other than required premium
payments) has been or is expected to be incurred by Holdings, any of its
Subsidiaries or any of their ERISA Affiliates, (iv) no ERISA Event has occurred
or is reasonably expected to occur, and (v) Holdings, each of its Subsidiaries
and each of their ERISA Affiliates have complied with the requirements of
Section 515 of ERISA with respect to each Multiemployer Plan and are not in
material "default" (as defined in Section 4219(c)(5) of ERISA) with respect to
payments to a Multiemployer Plan.)
4.20. SOLVENCY
. Each Credit Party is and, upon the incurrence of any Obligation
by such Credit Party on any date on which this representation and warranty is
made and after giving effect to the provisions of Section 7.2, will be,
Solvent.
4.21. COMPLIANCE WITH STATUTES, ETC
. Each of Holdings and its Subsidiaries is in compliance with all
applicable statutes, regulations and orders of, and all applicable restrictions
imposed by, all Governmental Authorities, in respect of the conduct of its
business and the ownership of its property (including compliance with all
applicable Environmental Laws with respect to any Real Estate Asset or
governing its business and the requirements of any permits issued under such
Environmental Laws with respect to any such Real Estate Asset or the operations
of Holdings or any of its Subsidiaries), except such non-compliance that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
4.22. DISCLOSURE
. No representation or warranty of any Credit Party contained in
any Credit Document or in any other documents, certificates or written
statements furnished to Lenders by or on behalf of Holdings or any of its
Subsidiaries for use in connection with the transactions contemplated hereby at
the time such representation or warranty is made contains any untrue statement
of a material fact or omits to state a material fact (known to Holdings or
Company, in the case of any document not furnished by either of them) necessary
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in order to make the statements contained herein or therein not misleading in
light of the circumstances in which the same were made. Any projections and
pro forma financial information contained in such materials are based upon good
faith estimates and assumptions believed by Holdings or Company to be
reasonable at the time made, it being recognized by Lenders that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ
materially from the projected results. There are no facts known (or which
should upon the reasonable exercise of diligence be known) to Holdings or
Company (other than matters of a general economic nature) that, individually or
in the aggregate, could reasonably be expected to result in a Material Adverse
Effect and that have not been disclosed herein or in such other documents,
certificates and statements furnished to Lenders for use in connection with the
transactions contemplated hereby.
SECTION 5. AFFIRMATIVE COVENANTS
Each Credit Party covenants and agrees that so long as any
Commitment is in effect and until payment in full of all Obligations and
cancellation or expiration of all Letters of Credit, each Credit Party shall
perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 5.
5.1. FINANCIAL STATEMENTS AND OTHER REPORTS
. Holdings will deliver to Administrative Agent and Lenders:
(a) Quarterly Financial Statements. As soon as available, and
in any event within 45 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year, the consolidated and consolidating balance sheets
of Holdings and its Subsidiaries as at the end of such Fiscal Quarter and the
related consolidated (and with respect to sales and EBITDA and statements of
income, consolidating) statements of income, stockholders' equity and cash
flows of Holdings and its Subsidiaries for such Fiscal Quarter and for the
period from the beginning of the then current Fiscal Year to the end of such
Fiscal Quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous Fiscal Year
and the corresponding figures from the Financial Plan for the current Fiscal
Year, all in reasonable detail, together with a Financial Officer Certification
and a Narrative Report with respect thereto;
(b) Annual Financial Statements. As soon as available, and in
any event within 90 days after the end of each Fiscal Year, (i) the
consolidated and consolidating balance sheets of Holdings and its Subsidiaries
as at the end of such Fiscal Year and the related consolidated (and with
respect to sales, EBITDA and statements of income, consolidating) statements of
income, stockholders' equity and cash flows of Holdings and its Subsidiaries
for such Fiscal Year, setting forth in each case in comparative form the
corresponding figures for the previous Fiscal Year and the corresponding
figures from the Financial Plan for the Fiscal Year covered by such financial
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statements, in reasonable detail, together with a Financial Officer
Certification and a Narrative Report with respect thereto; and (ii) with
respect to such consolidated financial statements a report thereon of Ernst &
Young or other independent certified public accountants of recognized national
standing selected by Holdings, and reasonably satisfactory to Administrative
Agent (which report shall be unqualified as to going concern and scope of
audit, and shall state that such consolidated financial statements fairly
present, in all material respects, the consolidated financial position of
Holdings and its Subsidiaries as at the dates indicated and the results of
their operations and their cash flows for the periods indicated in conformity
with GAAP applied on a basis consistent with prior years (except as otherwise
disclosed in such financial statements) and that the examination by such
accountants in connection with such consolidated financial statements has been
made in accordance with generally accepted auditing standards) together (to the
extent not inconsistent with the pronouncements of the Institute of Certified
Public Accountants and FASB) with a written statement by such independent
certified public accountants stating whether, in connection with their audit
examination, any failure to comply with the terms, covenants, provisions or
conditions of Article 5 or Article 6 (insofar as they relate to the accounting
matters) has come to their attention and, if such a failure to comply has come
to their attention, specifying the nature and period of existence thereof;
(c) Compliance Certificate. Together with each delivery of
financial statements of Holdings and its Subsidiaries pursuant to Sections
5.1(a) and 5.1(b), a duly executed and completed Compliance Certificate;
(d) Statements of Reconciliation after Change in Accounting
Principles. If, as a result of any change in accounting principles and
policies from those used in the preparation of the Historical Financial
Statements, the consolidated financial statements of Holdings and its
Subsidiaries delivered pursuant to Section 5.1(a) or 5.1(b) will differ in any
material respect from the consolidated financial statements that would have
been delivered pursuant to such subdivisions had no such change in accounting
principles and policies been made, then, together with the first delivery of
such financial statements after such change, one or more a statements of
reconciliation for all such prior financial statements in form and substance
satisfactory to Administrative Agent;
(e) Notice of Default. Promptly upon any Authorized Officer of
Holdings or Company obtaining knowledge (i) of any condition or event that
constitutes a Default or an Event of Default or that notice has been given to
Holdings or Company with respect thereto; (ii) that any Person has given any
notice to Holdings or any of its Subsidiaries or taken any other action with
respect to any event or condition set forth in Section 8.1(b); or (iii) of the
occurrence of any events or changes that have caused or evidence, individually
or in the aggregate, a Material Adverse Effect, a certificate of its Authorized
Officers specifying the nature and period of existence of such condition, event
or change, or specifying the notice given and action taken by any such Person
and the nature of such claimed Event of Default, Default, default, event or
condition, and what action Company has taken, is taking and proposes to take
with respect thereto;
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(f) Notice of Litigation. Promptly upon any Authorized Officer
of Holdings or Company obtaining knowledge of (i) the institution of, or
non-frivolous written threat of, any Adverse Proceeding not previously
disclosed in writing by Company to Lenders, or (ii) any material development in
any Adverse Proceeding, in each of the cases (i) or (ii) which if adversely
determined, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect, or which seeks to enjoin or otherwise prevent
the consummation of, or to recover any damages or obtain relief as a result of,
the transactions contemplated hereby, written notice thereof together with such
other information as may reasonably be available to Holdings or Company to
enable Lenders and their counsel to evaluate such matters;
(g) ERISA. (i) Promptly upon becoming aware of the occurrence
of or forthcoming occurrence of any ERISA Event, a written notice specifying
the nature thereof, what action Holdings, any of its Subsidiaries or any of
their respective ERISA Affiliates has taken, is taking or proposes to take with
respect thereto and, when known, any action taken or threatened by the Internal
Revenue Service, the Department of Labor or the PBGC with respect thereto; and
(ii) upon request in writing, with reasonable promptness, copies of (1) each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
filed by Holdings, any of its Subsidiaries or any of their respective ERISA
Affiliates with the Internal Revenue Service with respect to each Pension Plan;
(2) all notices received by Holdings, any of its Subsidiaries or any of their
respective ERISA Affiliates from a Multiemployer Plan sponsor concerning an
ERISA Event; and (3) copies of such other documents or governmental reports or
filings relating to any Employee Benefit Plan as Administrative Agent shall
reasonably request;
(h) Financial Plan. As soon as practicable and in any event no
later than thirty (30) days prior to the beginning of each Fiscal Year, a
consolidated plan and financial forecast for such Fiscal Year and each Fiscal
Year (or portion thereof) through the final maturity date of the Loans (a
"FINANCIAL PLAN"), including (i) a forecasted consolidated balance sheet and
forecasted consolidated statements of income and cash flows of Holdings and its
Subsidiaries for each such Fiscal Year, together with a statement of
forecasted compliance with the financial covenants in Section 6.8 (including
estimates of the information required in Annex A to the form of Compliance
Certificate attached hereto) for each such Fiscal Year and an explanation of
the assumptions on which such forecasts are based, and (ii) forecasted
consolidated statements of income and cash flows of Holdings and its
Subsidiaries for each month of each such Fiscal Year, together, in each cases
(i) and (ii), with an explanation of the assumptions on which such forecasts
are based all in form and substance reasonably satisfactory to Agents;
(i) Insurance Report. As soon as practicable and in any event
by the last day of each Fiscal Year, a report in form and substance
satisfactory to Administrative Agent outlining all material insurance coverage
maintained as of the date of such report by Holdings and its Subsidiaries and
all material insurance coverage planned to be maintained by Holdings and its
Subsidiaries in the immediately succeeding Fiscal Year;
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(j) Notice of Change in Board of Directors. With reasonable
promptness, written notice of any change in the board of directors (or similar
governing body) of Holdings or Company;
(k) Environmental Disclosure. The materials and information
required to be delivered under Section 5.9(a), as and when required;
(l) Information Regarding Collateral. Information required to
be delivered pursuant to Section 3.1(c) of the Pledge and Security Agreement.
(m) Other Information. Promptly upon their becoming available,
(i) copies of (A) all financial statements, reports, notices and proxy
statements sent or made available generally by Holdings to its security holders
acting in such capacity or by any Subsidiary of Holdings to its security
holders other than Holdings or another Subsidiary of Holdings, (B) all regular
and periodic reports and all registration statements and prospectuses, if any,
filed by Holdings or any of its Subsidiaries with any securities exchange or
with the Securities and Exchange Commission or any governmental or private
regulatory authority, (C) all press releases and other statements made
available generally by Holdings or any of its Subsidiaries to the public
concerning material developments in the business of Holdings or any of its
Subsidiaries, and (ii) such other information and data with respect to Holdings
or any of its Subsidiaries as from time to time may reasonably be requested by
Administrative Agent or any Lender.
5.2. EXISTENCE
. Except as otherwise permitted under Section 6.9, each Credit
Party will, and will cause each of its Subsidiaries to, at all times preserve
and keep in full force and effect its existence and all rights and franchises,
licenses and permits material to its business; provided, no Credit Party or any
of its Subsidiaries shall be required to preserve any such existence, right or
franchise, licenses and permits if such Person's board of directors (or similar
governing body) shall determine that the preservation thereof is no longer
desirable in the conduct of the business of such Person, and that the loss
thereof could not reasonably be expected to have a Material Adverse Effect.
5.3. PAYMENT OF TAXES AND CLAIMS
. Each Credit Party will, and will cause each of its Subsidiaries
to, pay all Taxes imposed upon it or any of its properties or assets or in
respect of any of its income, businesses or franchises before any penalty or
fine accrues thereon, and all claims (including claims for labor, services,
materials and supplies) for sums that have become due and payable and that by
law have or may become a Lien upon any of its properties or assets, prior to
the time when any penalty or fine shall be incurred with respect thereto;
provided, no such Tax or claim need be paid if it is being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted,
so long as (a) adequate reserve or other appropriate provision, as shall be
required in conformity with GAAP shall have been made therefor, and (b) in the
case of a charge or claim which has or may become a Lien against any of the
Collateral, such contest proceedings conclusively operate to stay the sale of
any portion of the Collateral to satisfy such Tax or claim.
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5.4. MAINTENANCE OF PROPERTIES
. Each Credit Party will, and will cause each of its Subsidiaries
to, maintain or cause to be maintained in good repair, working order and
condition, ordinary wear and tear excepted, all material properties used or
useful in the business of Holdings and its Subsidiaries and from time to time
will make or cause to be made all appropriate repairs, renewals and
replacements thereof.
5.5. INSURANCE
. Holdings will maintain or cause to be maintained, with
financially sound and reputable insurers, such public liability insurance,
third party property damage insurance, business interruption insurance and
casualty insurance with respect to liabilities, losses or damage in respect of
the assets, properties and businesses of Holdings and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by Persons of
established reputation engaged in similar businesses, in each case in such
amounts (giving effect to self-insurance), with such deductibles, covering such
risks and otherwise on such terms and conditions as shall be customary for such
Persons. Without limiting the generality of the foregoing, Holdings will
maintain or cause to be maintained (a) flood insurance with respect to each
Flood Hazard Property that is located in a community that participates in the
National Flood Insurance Program, in each case in compliance with any
applicable regulations of the Board of Governors of the Federal Reserve System,
and (b) first party, property coverage insurance on the Collateral under such
policies of insurance, with such insurance companies, in such amounts, with
such deductibles, and covering such risks as are at all times carried or
maintained under similar circumstances by Persons of established reputation
engaged in similar businesses. Each such policy of insurance shall (i) name
Administrative Agent, on behalf of Lenders as an additional insured thereunder
as its interests may appear and (ii) in the case of each casualty insurance
policy, contain a loss payable clause or endorsement, satisfactory in form and
substance to Administrative Agent, that names Administrative Agent, on behalf
of Lenders as the loss payee thereunder and provides for at least 30 days'
prior written notice to Administrative Agent of any modification or
cancellation of such policy.
5.6. INSPECTIONS
. Each Credit Party will, and will cause each of its Subsidiaries
to, permit any authorized representatives designated by any Agent or Lender to
visit and inspect any of the properties of any Credit Party and any of its
respective Subsidiaries, to inspect and copy its and their financial and
accounting records, and to discuss its and their affairs, finances and accounts
with its and their officers and independent public accountants, all upon
reasonable notice and at such reasonable times during normal business hours and
as often as may reasonably be requested. If such visit and inspection occurs
at a time when no Default or Event of Default has occurred and is continuing,
such visit and inspection shall be at the expense of such Lender and, if such
visit and inspection occurs at a time when a Default or Event of Default has
occurred and is continuing, such visit and inspection shall be paid by Company
pursuant to Section 10.2. By this provision, each Credit Party authorizes its
independent public accountants to discuss the affairs, finances and accounts of
such Credit Party and its Subsidiaries, provided, such Credit Party may, if its
so chooses, be present and participate in any such discussion.
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5.7. LENDERS MEETINGS
. Holdings and Company will, upon the request of Administrative
Agent or Requisite Lenders, participate in a meeting of Administrative Agent
and Lenders once during each Fiscal Year to be held at Company's corporate
offices (or at such other location as may be agreed to by Company and
Administrative Agent) at such time as may be agreed to by Company and
Administrative Agent.
5.8. COMPLIANCE WITH LAWS
. Each Credit Party will comply, and shall cause each of its
Subsidiaries and all other Persons, if any, on or occupying any Facilities to
comply, with the requirements of all applicable laws, rules, regulations and
orders of any governmental authority (including all Environmental Laws),
noncompliance with which could reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect.
5.9. ENVIRONMENTAL
.
(a) Environmental Disclosure. Holdings will deliver to
Administrative Agent and Lenders the following information and materials, in
each case to the extent that they relate to circumstances that, individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect:
(i) as soon as practicable following receipt thereof,
copies of all environmental audits, investigations, analyses and reports
whether prepared by personnel of Holdings or any of its Subsidiaries or
by independent consultants, governmental authorities or any other
Persons, with respect to significant environmental matters at any
Facility or with respect to any Environmental Claims;
(ii) promptly upon the occurrence thereof, written notice
describing in reasonable detail (A) any Release required to be reported
to any federal, state or local governmental or regulatory agency under
any applicable Environmental Laws, (B) any remedial action taken by
Holdings or any other Person in response to any Hazardous Materials
Activities and (C) Holdings' or Company's discovery of any occurrence or
condition on any real property adjoining or in the vicinity of any
Facility that could cause such Facility or any part thereof to be
subject to any material restrictions on the ownership, occupancy,
transferability or use thereof under any Environmental Laws;
(iii) as soon as practicable following the sending or
receipt thereof by Holdings or any of its Subsidiaries, a copy of any
and all written communications with respect to (A) any Environmental
Claims (B) any Release required to be reported to any federal, state or
local governmental or regulatory agency, and (C) any request for
information from any governmental agency that suggests such agency is
investigating whether Holdings or any of its Subsidiaries may be
potentially responsible for any Hazardous Materials Activity;
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(iv) prompt written notice describing in reasonable detail
(A) any proposed acquisition of stock, assets, or property by Holdings
or any of its Subsidiaries that could reasonably be expected to expose
Holdings or any of its Subsidiaries to, or result in, Environmental
Claims or affect the ability of Holdings or any of its Subsidiaries to
maintain in full force and effect all Governmental Authorizations
required under any Environmental Laws for their respective operations
and (B) any proposed action to be taken by Holdings or any of its
Subsidiaries to modify current operations in a manner that could
reasonably be expected to subject Holdings or any of its Subsidiaries to
any additional obligations or requirements under any Environmental Laws;
and
(v) with reasonable promptness, such other documents and
information as from time to time may reasonably be requested by
Administrative Agent in relation to any matters disclosed pursuant to
this Section 5.9(a).
(b) Hazardous Materials Activities, Etc. Each Credit Party
shall promptly take, and shall cause each of its Subsidiaries promptly to take,
any and all actions necessary to (i) cure any violation of applicable
Environmental Laws by such Credit Party or its Subsidiaries and (ii) make an
appropriate response to any Environmental Claim against such Credit Party or
any of its Subsidiaries and discharge any obligations it may have to any Person
thereunder, in each of cases (i) and (ii) where failure to do so could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
5.10. SUBSIDIARIES
. In the event that any Person becomes a Domestic Subsidiary of
Company, whether pursuant to a Permitted Acquisition or otherwise, Company
shall (a) promptly cause such Domestic Subsidiary to become a Guarantor
hereunder and a party to the Intercompany Subordination Agreement and a Grantor
under the Pledge and Security Agreement by executing and delivering to
Administrative Agent and Collateral Agent a Counterpart Agreement (except in
the case of Persons becoming Domestic Subsidiaries of Company as a result of
the Xxxx Acquisition, such Person shall, in lieu of a Counterpart Agreement,
execute and deliver to Administrative Agent and Collateral Agent the
Reaffirmation and Counterpart Agreement), (b) promptly cause each Person
holding Capital Stock of such Domestic Subsidiary (whether or not a Credit
Party) to take all of the actions necessary to grant and to perfect a First
Priority Lien in favor of Collateral Agent for the benefit of the Secured
Parties under the Pledge and Security Agreement in respect of all such Capital
Stock and (c) take all such actions and execute and deliver, or cause to be
executed and delivered, all such documents, instruments, agreements, and
certificates as are similar to those described in Sections 3.1(b), 3.1(l),
3.1(m), 3.1(n) and 3.1(p) in respect of any Collateral required to be secured
for the benefit of Secured Parties under the Pledge and Security Agreement. In
the event that any Person becomes a Foreign Subsidiary of Company, and Capital
Stock of such Foreign Subsidiary is directly owned by Company or by any
Domestic Subsidiary of Company, Company shall, or shall cause such Domestic
Subsidiary to, deliver, all such documents, instruments, agreements, and
certificates as are similar to those described in Section 3.1(b), and Company
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shall take, or shall cause such Domestic Subsidiary to take, all of the actions
necessary to grant and to perfect a First Priority Lien in favor of Collateral
Agent for the benefit of Secured Parties under the Pledge and Security
Agreement in such Capital Stock. With respect to each such Subsidiary, Company
shall promptly send to Administrative Agent written notice setting forth with
respect to such Person (i) the date on which such Person became a Subsidiary of
Company, and (ii) all of the data required to be set forth in Schedules 4.1 and
4.2 with respect to all Subsidiaries of Company; provided, such written notice
shall be deemed to supplement Schedule 4.1 and 4.2 for all purposes hereof.
5.11. ADDITIONAL MATERIAL REAL ESTATE ASSETS
. In the event that any Credit Party acquires a Material Real
Estate Asset or any Real Estate Asset becomes a Material Real Estate Asset and
such interest has not otherwise been made subject to the Lien of the Collateral
Documents in favor of Collateral Agent, for the benefit of Secured Parties,
then such Credit Party, contemporaneously with acquiring such Material Real
Estate Asset or upon any Real Estate Asset becoming a Material Real Estate
Asset, shall take all such actions and execute and deliver, or cause to be
executed and delivered, all such mortgages, documents, instruments, agreements,
opinions and certificates similar to those described in Sections 3.1(l), 3.1(m)
and 3.1(n) with respect to each such Material Real Estate Asset that Collateral
Agent shall reasonably request to create in favor of Collateral Agent, for the
benefit of Secured Parties, a valid and, subject to any filing and/or recording
referred to herein, perfected First Priority security interest in such Material
Real Estate Assets. In addition to the foregoing, Company shall, at the
request of Requisite Lenders, deliver, from time to time, to Administrative
Agent such appraisals as are required by law or regulation of Real Estate
Assets with respect to which Collateral Agent has been granted a Lien.
5.12. INTEREST RATE PROTECTION
. As soon as reasonably practicable, and in any event no later
than 180 days following the Second Amendment Effective Date and at all times
thereafter, Company shall maintain, or caused to be maintained, in effect one
or more Interest Rate Agreements for a term of not less than three years and
otherwise in form and substance reasonably satisfactory to Administrative Agent
and Co-Syndication Agents, which Interest Rate Agreements shall effectively
limit the Unadjusted Eurodollar Rate Component of the interest costs to Company
with respect to an aggregate notional principal amount of not less than 50% of
the aggregate principal amount of Consolidated Total Debt (excluding any
Revolving Loans) outstanding from time to time (based on the assumption that
such notional principal amount was a Eurodollar Rate Loan with an Interest
Period of three months) at a rate and on terms satisfactory to the Co-
Syndication Agents.
5.13. TITLE INSURANCE
. Within 30 days after the Second Amendment Effective Date,
Company and each applicable Guarantor shall provide to Collateral Agent (A)
ALTA mortgagee title insurance policies (or other policies available in such
state and reasonably satisfactory to Collateral Agent) or unconditional commit-
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ments therefor issued by one or more title companies reasonably satisfactory to
Collateral Agent with respect to each Second Amendment Effective Date Mortgaged
Property (each, a "TITLE POLICY"), in amounts not less than the fair market
value of each Second Amendment Effective Date Mortgaged Property, together with
a title report issued by a title company with respect thereto, and copies of
all recorded documents listed as exceptions to title or otherwise referred to
therein, each in form and substance reasonably satisfactory to Collateral
Agent, (B) Mortgage modification endorsements to the Title Policies in form and
substance and in amounts acceptable to the Collateral Agent, and (C) evidence
satisfactory to Collateral Agent that such Credit Party has paid to the title
company or to the appropriate governmental authorities all expenses and
premiums of the title company and all other sums required in connection with
the issuance of each Title Policy and all recording and stamp taxes (including
mortgage recording and intangible taxes) payable in connection with recording
the Mortgages for each Second Amendment Effective Date Mortgaged Property in
the appropriate real estate records;
5.14. FURTHER ASSURANCES
. At any time or from time to time upon the request of
Administrative Agent, each Credit Party will, at its expense, promptly execute,
acknowledge and deliver such further documents and do such other acts and
things as Administrative Agent or Collateral Agent may reasonably request in
order to effect fully the purposes of the Credit Documents. In furtherance and
not in limitation of the foregoing, each Credit Party shall take such actions
as Administrative Agent or Collateral Agent may reasonably request from time to
time to ensure that the Obligations are guarantied by the Guarantors and are
secured by substantially all of the assets of Holdings and its Subsidiaries and
all of the outstanding Capital Stock of Company and its Subsidiaries (subject
to limitations contained in the Credit Documents with respect to Foreign
Subsidiaries).
SECTION 6. NEGATIVE COVENANTS
Each Credit Party covenants and agrees that, so long as any
Commitment is in effect and until payment in full of all Obligations and
cancellation or expiration of all Letters of Credit, such Credit Party shall
perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 6.
6.1. INDEBTEDNESS
. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or
otherwise become or remain directly or indirectly liable with respect to any
Indebtedness, except:
(a) the Obligations;
(b) (i) Indebtedness of any Guarantor Subsidiary to Company or
to any other Guarantor Subsidiary, or of Company to any Guarantor Subsidiary;
provided, (A) all such Indebtedness shall be evidenced by promissory notes and
all such notes shall be subject to a First Priority Lien pursuant to the Pledge
and Security Agreement, (B) all such Indebtedness shall be unsecured and
subordinated in right of payment to the payment in full of the Obligations
pursuant to the terms and conditions of the applicable promissory notes or the
Intercompany Subordination Agreement, and (C) any payment by any Guarantor
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Subsidiary under any guaranty of the Obligations shall result in a pro tanto
reduction of the amount of any such Indebtedness owed by such Guarantor
Subsidiary to Company or to any of its Guarantor Subsidiaries for whose benefit
such payment is made; (ii) Indebtedness of any Foreign Subsidiary to Company or
any Guarantor Subsidiary, provided, (A) all such Indebtedness shall be
evidenced by promissory notes and all such notes shall be subject to a First
Priority Lien pursuant to the Pledge and Security Agreement and (B) all such
Indebtedness shall be unsecured and subordinated in right of payment to the
payment in full of the Obligations pursuant to the terms and conditions of the
applicable promissory notes or an Intercompany Subordination Agreement;
(iii) Indebtedness of any Foreign Subsidiary to any other Foreign Subsidiary
and (iv) Indebtedness between Company and Holdings arising as a result of
Restricted Junior Payments permitted under Section 6.5(d);
(c) Company and its Guarantor Subsidiaries may become and
remain liable with respect to Senior Subordinated Notes in an aggregate
principal amount not to exceed $440,000,000 at any time outstanding under the
Senior Subordinated Note Indenture; additional Subordinated Indebtedness the
proceeds of which (net of reasonable costs and expenses associated therewith)
are used to repay the Loans pursuant to Section 2.16(d) or so long as no
Default or Event of Default has occurred and is continuing or would result
therefrom, and Company is in Pro Forma compliance with the covenants in Section
6.8 (disregarding any increase in Consolidated Adjusted EBITDA that was
attributable to the application of the proceeds of the exercise of a Cure Right
with respect to any Fiscal Quarter during a four Fiscal Quarter period ended on
the last day of such Fiscal Quarter), are used for Permitted Acquisitions,
provided, the terms and conditions of such Subordinated Indebtedness (including
the terms and conditions of any guarantees of or other credit support for such
Indebtedness) are not less favorable in any material respect to Company and its
Subsidiaries, the Agents or the Lenders than the terms and conditions of the
Senior Subordinated Notes; and extensions, renewals, refinancings or
replacements of the Subordinated Indebtedness permitted under clauses (i) and
(ii), provided, such extensions, renewals, refinancings or replacements are on
terms and conditions (including the terms and conditions of any guarantees of
or other credit support for such Indebtedness) not less favorable in any
material respect to Company and its Subsidiaries, the Agents or the Lenders
than the terms and conditions of the Indebtedness being extended, renewed,
refinanced or replaced, do not add as an obligor any Person that would not
have been an obligor under the Indebtedness being extended, renewed, replaced
or refinanced, do not result in a greater principal amount or shorter
remaining average life to maturity than the Indebtedness being extended,
renewed, replaced or refinanced and are not effected at any time when a
Default or Event of Default has occurred and is continuing or would result
therefrom;
(d) Indebtedness in respect of (i) netting services, overdraft
protections and otherwise in connection with endorsements of checks and other
negotiable instruments and deposit accounts incurred in the ordinary course of
business; (ii) workers' compensation claims, self-insurance obligations,
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performance, surety, release, appeal and similar bonds and completion
guarantees incurred in the ordinary course of business of Company and its
Subsidiaries and any reimbursement obligations in respect of the foregoing; and
(iii) indemnification obligations or obligations in respect of purchase price
adjustments or similar obligations incurred or assumed by Company and its
Subsidiaries in connection with an Asset Sale or sale of Capital Stock of
Holdings otherwise permitted under this Agreement;
(e) guaranties in the ordinary course of business of Company
and its Subsidiaries of the obligations of suppliers, customers, franchisees
and licensees of Holdings and its Subsidiaries;
(f) guaranties by Holdings or Company of Indebtedness of a
Guarantor Subsidiary or guaranties by a Subsidiary of Company of Indebtedness
of Company or a Guarantor Subsidiary with respect, in each case, to
Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1;
(g) Indebtedness described in Schedule 6.1(g), and not
exceeding the aggregate principal amount indicated therein (the "SURVIVING
INDEBTEDNESS") and, solely in the case of the Surviving Capital Leases and
Surviving IRBs, any extensions, renewals, refinancings or replacements thereof,
provided, such extensions, renewals, refinancings or replacements (i) are on
terms and conditions (including the terms and conditions of any guarantee or
other credit support for such Indebtedness) not less favorable in any material
respect to Company and its Subsidiaries, the Agents or the Lenders than the
terms and conditions of the Indebtedness being extended, renewed, refinanced or
replaced, (ii) do not add as obligor any Person that would not have been an
obligor under the Indebtedness being extended, renewed, replaced or refinanced,
(iii) do not result in a greater principal amount or shorter remaining average
life to maturity than the Indebtedness being extended, renewed, replaced or
refinanced and (iv) are not effected at any time when a Default or Event of
Default has occurred and is continuing or would result therefrom;
(h) Indebtedness with respect to Capital Leases (in addition to
any Surviving Capital Leases), including Capital Leases acquired in connection
with Permitted Acquisitions, in an aggregate amount at any time outstanding
after the Second Amendment Effective Date not to exceed the sum of $75,000,000;
(i) Indebtedness of Foreign Subsidiaries (to Persons other than
Company or its Subsidiaries) in an aggregate amount not to exceed $60,000,000
at any time outstanding;
(j) purchase money Indebtedness in an aggregate amount not to
exceed $20,000,000 at any time outstanding (excluding any such Indebtedness of
a Person acquired in connection with a Permitted Acquisition); provided, any
such Indebtedness (i) shall be secured only by assets acquired in connection
with the incurrence of such Indebtedness, and (ii) shall constitute not less
than 90% of the aggregate consideration paid with respect to such asset;
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(k) (i) Indebtedness (other than Capital Leases) of any Person
(other than Xxxxxx or any Subsidiary of Xxxxxx) that becomes a Guarantor
Subsidiary on or after the date hereof pursuant to a Permitted Acquisition
(including purchase money Indebtedness of such Person), which Indebtedness
exists at the time such Person becomes a Subsidiary and is not created in
contemplation of, or in connection with, such Person becoming a Subsidiary; and
(ii) any extensions, renewals, refinancings or replacements of such
Indebtedness which extensions, renewals, refinancings or replacements (A) are
on terms and conditions (including the terms and conditions of any guarantee or
other credit support for such Indebtedness) not less favorable in any material
respect to Company and its Subsidiaries or the Lenders than the terms and
conditions of the Indebtedness being extended, renewed, refinanced or replaced
and, (B) do not add as obligor any Person that would not have been an obligor
under the Indebtedness being extended, renewed, replaced or refinanced, (C) do
not result in a greater principal amount or shorter remaining average life to
maturity than the Indebtedness being extended, renewed, replaced or refinanced
and (D) are not effected at any time when a Default or Event of Default has
occurred and is continuing or would result therefrom; provided, the aggregate
amount of Indebtedness described in clauses (i) and (ii) does not exceed
$30,000,000 at any time outstanding;
(l) Indebtedness with respect to Financial Hedge Agreements;
(m) senior unsecured Indebtedness of Holdings to rank pari
passu with Holdings' Obligations under its Guaranty, in an aggregate principal
amount not to exceed $50,000,000 at any time outstanding; provided, the
Administrative Agent is satisfied that the terms and conditions of such
Indebtedness (A) provide that there shall be no payment (whether in Cash or
other assets or property, other than payments-in-kind) of principal, interest,
fees, expenses or other amounts by Holdings out of the assets or estate of
Holdings or any of its Subsidiaries (other than as a consequence of any
acceleration or event of default) at any time prior to the payment in full of
the Obligations, (B) do not create rights or remedies enforceable against
Company or any of its Subsidiaries, (C) do not provide for covenants,
restrictions or limitations on Holdings in respect of Company and its
Subsidiaries, or Events of Default relating to Company and its Subsidiaries, in
each case, that are more restrictive in any material respect than the analogous
provisions of the Senior Subordinated Notes and (D) provide for a final
maturity after the final maturity of any Loan then outstanding or committed to
be lent hereunder; provided, further, 100% of the proceeds of such Indebtedness
(net of reasonable costs and expenses associated therewith, including
reasonable fees and expenses of professional advisors) are contributed as
equity capital to Company; and
(n) other Indebtedness of Holdings and its Guarantor
Subsidiaries, which is unsecured and subordinated to the Obligations in a
manner satisfactory to Administrative Agent in an aggregate amount not to
exceed $20,000,000 at any time outstanding.
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6.2. LIENS
. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset (including any
document or instrument in respect of goods or accounts receivable) of Holdings
or any of its Subsidiaries, whether now owned or hereafter acquired, or any
income or profits therefrom, or file or permit the filing of, or permit to
remain in effect, any financing statement or other similar notice of any Lien
with respect to any such property, asset, income or profits under the UCC of
any State or under any similar recording or notice statute, except:
(a) Liens in favor of Collateral Agent for the benefit of
Secured Parties granted pursuant to any Credit Document;
(b) Liens for Taxes or Liens imposed pursuant to Section
401(a)(29) or 412(n) of the Internal Revenue Code, in each case, if the
underlying obligations are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted;
(c) statutory Liens of landlords, banks (including rights of
set-off), carriers, warehousemen, mechanics, repairmen, workmen and
materialmen, and other Liens imposed by law (other than any such Lien imposed
pursuant to Section 401 (a)(29) or 412(n) of the Internal Revenue Code or by
ERISA), in each case incurred in the ordinary course of business of Company and
its Subsidiaries (i) for amounts not yet overdue or (ii) for amounts that are
overdue and that (in the case of any such amounts overdue for a period in
excess of five days) are being contested in good faith by appropriate
proceedings, so long as such reserves or other appropriate provisions, if any,
as shall be required by GAAP shall have been made for any such contested
amounts;
(d) Liens incurred in the ordinary course of business of
Company and its Subsidiaries in connection with workers' compensation,
unemployment insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, trade contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the payment
of borrowed money or other Indebtedness), so long as no foreclosure, sale or
similar proceedings have been commenced with respect to any portion of the
Collateral on account thereof;
(e) easements, rights-of-way, restrictions, encroachments, and
other minor defects or irregularities affecting any Real Estate Asset in title,
in each case which do not and will not materially and adversely affect
marketability of title or the value of such Real Estate Asset or interfere in
any material respect with the ordinary conduct of the business of Holdings or
any of its Subsidiaries;
(f) any interest or title in real estate or improvements of a
lessor or sublessor, but only as a lessor, under any lease of real estate
permitted hereunder;
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(g) Liens solely on any xxxx xxxxxxx money deposits made by
Holdings or any of its Subsidiaries in connection with any letter of intent or
purchase agreement permitted hereunder;
(h) purported Liens evidenced by the filing of precautionary
UCC financing statements relating solely to personal property leased pursuant
to operating leases entered into in the ordinary course of business of Company
and its Subsidiaries;
(i) 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;
(j) any zoning or similar law or right reserved to or vested in
any governmental office or agency to control or regulate the use of any real
property;
(k) licenses of patents, trademarks and other intellectual
property rights granted by Holdings or any of its Subsidiaries in the ordinary
course of business and not interfering in any respect with the ordinary conduct
of the business of Company or such Subsidiary;
(l) Liens described in Schedule 6.2(l) or on a title report
delivered pursuant to Section 3.1(l)(iv)(A);
(m) Liens securing Indebtedness permitted pursuant to Sections
6.1(j) and 6.1(k), provided, any such Lien (i) exists on the date of the
applicable acquisition or, solely in the case of Indebtedness permitted in
Section 6.1(j), is created in connection with the financing of the
acquisition within 180 days thereafter, (ii) solely in the case of
Indebtedness permitted by Section 6.1(k) , is not created in contemplation of,
or in connection with, such acquisition, and (iii) applies only to the
property or assets acquired;
(n) Liens in respect of Surviving Capital Leases and Surviving
IRBs and existing as of the Second Amendment Effective Date and any replacement
Liens, provided any such replacement Lien applies only to assets and property
subject to the Lien so replaced; and
(o) other Liens on assets other than the Collateral securing
Indebtedness in an aggregate amount not to exceed $20,000,000 at any time
outstanding.
6.3. EQUITABLE LIEN
. If any Credit Party or any of its Subsidiaries shall create or
assume any Lien upon any of its properties or assets, whether now owned or
hereafter acquired, other than Permitted Liens, it shall make or cause to be
made effective provisions whereby the Obligations will be secured by such Lien
equally and ratably with any and all other Indebtedness secured thereby as long
as any such Indebtedness shall be so secured; provided, notwithstanding the
foregoing, this covenant shall not be construed as a consent by Requisite
Lenders to the creation or assumption of any such Lien not otherwise permitted
by Section 6.2.
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6.4. NO FURTHER NEGATIVE PLEDGES
. No Credit Party nor any of its Subsidiaries shall enter into
any agreement prohibiting the creation or assumption of any Lien upon any of
its properties or assets, whether now owned or hereafter acquired, except (a)
restrictions pursuant to the Credit Documents, any Subordinated Indebtedness
permitted under Section 6.1(c) and any Surviving Indebtedness permitted under
Section 6.1(g), provided, in the case of Subordinated Indebtedness and
Surviving Indebtedness, that such restrictions are no more restrictive in any
material respect than the applicable restrictions in the Senior Subordinated
Note Documents; (b) customary restrictions pending a sale of property or assets
permitted hereunder arising under an executed agreement in respect of such
sale, provided, such restrictions relate only to the property or assets being
sold; (c) customary restrictions on assignment, subletting or other transfers
contained in leases, licenses and similar agreements entered into in the
ordinary course of business of Company and its Subsidiaries, provided, in each
case, such restrictions relate only to the property subject to such leases,
licenses or similar agreements; and (d) restrictions on property or assets
subject to a Lien permitted under Section 6.2(m), provided, such restrictions
relate only to the property or assets subject to such Lien.
6.5. RESTRICTED JUNIOR PAYMENTS
. No Credit Party shall, nor shall it permit any of its
Subsidiaries through any manner or means or through any other Person to,
directly or indirectly, declare, order, pay, make or set apart, or agree to
declare, order, pay, make or set apart, any sum for any Restricted Junior
Payment in respect of such Credit Party or Subsidiary, as applicable, except
that (a) Company may make regularly scheduled payments of interest in respect
of the Senior Subordinated Notes in accordance with the terms of, and only to
the extent required by, and subject to the subordination provisions contained
in, the Senior Subordinated Note Indenture; (b) Company may extend, renew,
refinance or replace Subordinated Indebtedness to the extent permitted under
Section 6.1(c); (c) any Subsidiary may pay dividends or make other
distributions with respect to any class of its issued and outstanding
Capital Stock or intercompany Indebtedness permitted by clauses (i)
through (iii) of Section 6.1(b); provided, any dividends and other
distributions by a Subsidiary that is not Wholly-Owned (i) are paid in Cash on
a pro rata basis among the holders of each applicable class of Capital Stock
and (ii) are not made to any Person other than Company or its Subsidiaries
at any time when a Default or Event of Default shall have occurred and be
continuing or shall be caused thereby; (d) so long as no Default or
Event of Default shall have occurred and be continuing or shall be caused
thereby, Company may make Restricted Junior Payments to Holdings (i) in an
aggregate amount not to exceed $1,000,000 in any Fiscal Year, to the extent
necessary to permit Holdings to pay general administrative costs and
expenses and to pay franchise taxes and other fees to maintain its corporate
existence, (ii) to the extent necessary to permit Holdings to discharge
the consolidated tax liabilities of Holdings and its Subsidiaries and (iii)
to the extent necessary to fund Restricted Junior Payments by Holdings
in accordance with clause (e) below, provided, in each of cases (i), (ii)
and (iii) Holdings promptly applies the amount of any such Restricted Junior
Payment for such purpose; (e) so long as no Default or Event of Default shall
have occurred and be continuing or shall be caused thereby, the following
additional payments may be made to holders or purchasers of
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Capital Stock of Holdings and its Subsidiaries (and Company may make Restricted
Junior Payments to Holdings in respect of such payments): (i) Holdings may
purchase its Capital Stock for Cash from present or former officers and
employees of Holdings or any of its Subsidiaries in accordance with the terms
of the Employee Leverage Program, Stockholder Agreements and stock option plans
upon the death, disability or termination of employment of such officer or
employee, provided, the aggregate amount of such Restricted Junior Payment does
not exceed $10,000,000 per Fiscal Year; (ii) any Subsidiary acquired in a
Permitted Acquisition may make Cash payments to redeem, retire or repurchase
Capital Stock in such Subsidiary held by a minority investor permitted under
clause (iii) of the definition of "Permitted Acquisition," provided, in the
case of this clause (ii), the aggregate amount of all such payments by Holdings
and its Subsidiaries (exclusive of amounts permitted by Section 6.5(d)) does
not exceed $4,000,000 during any Fiscal Year and $12,000,000 from the Original
Closing Date; and (iii) Holdings may make Restricted Junior Payments to holders
of its Capital Stock or otherwise with 50% of the portion of Consolidated
Excess Cash Flow not required to be used to prepay Loans in accordance with
Section 2.16(e) so long as the Leverage Ratio, recomputed as of the last day of
the most recently ended fiscal quarter of Company for which financial
statements have been delivered pursuant to Section 5.1(a), on a pro forma basis
after giving effect to such Restricted Junior Payments (disregarding any
increase in Consolidated Adjusted EBITDA as of such last day that was
attributable to the application of the proceeds of the exercise of a Cure Right
with respect to any fiscal quarter during the four fiscal quarter period ended
on such last day), shall not exceed 4.25:1.0, and Company shall have delivered
to Administrative Agent an officer's certificate to such effect; (f) payments
of Xxxxxx Acquisition Financing Requirements as contemplated by the Xxxxxx
Merger Agreement; and (g) payments of Xxxx Acquisition Financing Requirements
as contemplated by the Xxxx Merger Agreement.
6.6. RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS
. Except as provided herein, no Credit Party shall, nor shall it
permit any of its Subsidiaries to, create or otherwise cause or suffer to exist
or become effective any consensual encumbrance or restriction of any kind on
the ability of any Subsidiary of Company to (a) pay dividends or make any other
distributions on any of such Subsidiary's Capital Stock owned by Company or any
other Subsidiary of Company, (b) repay or prepay any Indebtedness owed by such
Subsidiary to Company or any other Subsidiary of Company, or (c) make loans or
advances to Company or any other Subsidiary of Company, provided, none of
clauses (a) through (c) shall apply to (i) customary restrictions pending a
sale of a Subsidiary (or any of its property, assets or Capital Stock)
permitted hereunder which restrictions arise under an executed agreement in
respect of such sale and relate only to the Subsidiary being sold, (ii)
restrictions imposed by applicable law, (iii) restrictions pursuant to the
Credit Documents, any Subordinated Indebtedness permitted under Section 6.1(c),
any Surviving Indebtedness permitted under Section 6.1(g) and Indebtedness of
Foreign Subsidiaries under Section 6.1(i) and (iv) any restrictions existing on
cash or other deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business of Company and its
Subsidiaries.
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6.7. INVESTMENTS
. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, make or own any Investment in any
Person, including without limitation any Joint Venture, except:
(a) Cash and Cash Equivalents;
(b) Investments owned as of the Second Amendment Effective Date
in the Capital Stock of any Subsidiary;
(c) Investments made after the Second Amendment Effective Date
in Capital Stock or, to the extent incurred in accordance with Section 6.1(b),
Indebtedness of Company or any Subsidiary, provided, no Credit Party shall, nor
shall it permit any of its Subsidiaries to, directly or indirectly, make any
Investment in any Foreign Subsidiary unless on a pro forma basis after giving
effect to such Investment as of the last day of the Fiscal Quarter recently
ended, Domestic Subsidiaries account for (A) at least 80% of the consolidated
assets of Holdings and its Subsidiaries as of the last day of the Fiscal
Quarter recently ended and (B) at least 80% of the consolidated revenues of
Holdings and its Subsidiaries for the last four full Fiscal Quarters recently
ended;
(d) Investments made after the Second Amendment Effective Date
in Joint Ventures in a business or line of business permitted for Company under
Section 6.12, provided, (A) immediately prior to the making of any Investment,
and after giving effect thereto, no Default or Event of Default shall have
occurred and be continuing, (B) all transactions in connection therewith shall
be consummated, in all material respects, in accordance with all applicable
laws and in conformity with all applicable Governmental Authorizations, (C)
such Investment can be legally maintained, and is maintained, as Collateral
(but only to the extent of Company's interest in such Joint Venture) subject to
First Priority security interests on such terms and conditions as are
reasonably satisfactory to Administrative Agent, and (D) the aggregate amount
of all Investments in Joint Ventures pursuant to this clause (d) does not
exceed $25,000,000 at any time outstanding;
(e) Investments (i) in any Securities received from financially
troubled account debtors in satisfaction or partial satisfaction of accounts
receivable incurred in the ordinary course of business of Company and its
Subsidiaries, (ii) deposits, prepayments and other credits to suppliers made in
the ordinary course of business of Company and its Subsidiaries and
(iii) prepaid expenses, negotiable instruments held for collection and lease,
utility, worker's compensation, performance and other similar deposits made in
the ordinary course of business of Company and its Subsidiaries;
(f) Investments that constitute Restricted Junior Payments
permitted under Section 6.5(e), Consolidated Capital Expenditures permitted
under Section 6.8(c) and Permitted Acquisition Expenses;
(g) Investments existing on the Second Amendment Effective Date
and described in Schedule 6.7;
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(h) Investments that constitute Financial Hedge Agreements or
agreements permitted under Section 6.17(b); and
(i) other Investments (including loans and advances to officers
and employees for relocation and other expenses) in an aggregate amount not to
exceed $25,000,000 at any time outstanding.
6.8. FINANCIAL COVENANTS
.
(a) Interest Coverage Ratio. Holdings shall not permit the
Interest Coverage Ratio as of the last day of any Fiscal Quarter, beginning
with the Fiscal Quarter ending on or near June 30, 2005 to be less than the
correlative ratio indicated:
FISCAL QUARTER ENDING INTEREST COVERAGE RATIO
June 2005 2.10:1.00
September 2005 2.10:1.00
December 2005 2.10:1.00
March 2006 2.10:1.00
June 2006 2.15:1.00
September 2006 2.15:1.00
December 2006 2.20:1.00
March 2007 2.20:1.00
June 2007 2.20:1.00
September 2007 2.20:1.00
December 2007 2.35:1.00
March 2008 2.35:1.00
June 2008 2.35:1.00
September 2008 2.35:1.00
December 2008 2.45:1.00
March 2009 2.45:1.00
June 2009 2.45:1.00
September 2009 2.45:1.00
December 2009 2.50:1.00
March 2010 2.50:1.00
June 2010 and thereafter 2.50:1.00
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(b) Leverage Ratio. Holdings shall not permit the Leverage
Ratio as of the last day of any Fiscal Quarter, beginning with the Fiscal
Quarter ending on or near June 30, 2005, to exceed the correlative ratio
indicated:
FISCAL QUARTER ENDING LEVERAGE RATIO
June 2005 6.40:1.00
September 2005 6.40:1.00
December 2005 6.40:1.00
March 2006 6.40:1.00
June 2006 6.40:1.00
September 2006 6.00:1.00
December 2006 5.90:1.00
March 2007 5.90:1.00
June 2007 5.90:1.00
September 2007 5.90:1.00
December 2007 5.50:1.00
March 2008 5.50:1.00
June 2008 5.50:1.00
September 2008 5.50:1.00
December 2008 5.10:1.00
March 2009 5.10:1.00
June 2009 5.10:1.00
September 2009 5.10:1.00
December 2009 4.80:1.00
March 2010 4.80:1.00
June 2010 and thereafter 4.80:1.00
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(c) Maximum Consolidated Capital Expenditures. Except to the
extent funded from the Cash proceeds of Additional Sponsor Equity, Holdings
shall not, and shall not permit its Subsidiaries to, make or incur Consolidated
Capital Expenditures in any Fiscal Year indicated below in an aggregate amount
in excess of (i) the corresponding amount set forth opposite such Fiscal Year
plus (ii) an amount equal to the Additional Net Sales for such Fiscal Year (the
sum of (i) and (ii), together, the "BUDGETED AMOUNT" for such Fiscal Year) plus
(iii) if the Budgeted Amount for the immediately preceding Fiscal Year was
greater than the actual amount of Consolidated Capital Expenditures made or
incurred by Holdings or its Subsidiaries for such preceding Fiscal Year, an
amount equal to the lesser of (A) the difference between the Budgeted Amount
for such preceding Fiscal Year and the actual amount of Consolidated Capital
Expenditures for such preceding Fiscal Year and (B) 50% of the Budgeted Amount
for such preceding Fiscal Year:
FISCAL YEAR ENDINGCONSOLIDATED CAPITAL EXPENDITURES
2005 $85,000,000
2006 $110,000,000
2007 $115,000,000
2008 $120,000,000
2009 $120,000,000
2010 $120,000,000
(d) Certain Calculations. For purposes of determining
compliance with the financial covenants set forth in this Section 6.8 and, in
the case of Section 6.8(d)(ii) only, calculating the Applicable Margin in
respect of Term Loans and the Leverage Ratio for purposes of compliance with
Section 2.3 (but not for purposes of determining the Applicable Margin in
respect of any other Loans or the Applicable Revolving Commitment Fee
Percentage),
(i) with respect to any period during which a Permitted
Acquisition or an Asset Sale has occurred (each, a "SUBJECT
TRANSACTION"), each of Consolidated Adjusted EBITDA, the components of
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Consolidated Cash Interest Expense and Additional Net Sales shall be
calculated with respect to such period on a pro forma basis (including
only Permitted Adjustments) using the historical audited financial
statements of any business so acquired or to be acquired or sold or to
be sold and the consolidated financial statements of Holdings and its
Subsidiaries which shall be reformulated as if such Subject Transaction,
and any Indebtedness incurred or repaid in connection therewith, had
been consummated or incurred or repaid at the beginning of such period
(and assuming that such Indebtedness bears interest during any portion
of the applicable measurement period prior to the relevant acquisition
at the weighted average of the interest rates applicable to outstanding
Loans incurred during such period);
(ii) with respect to any period during which Company has
incurred Refinancing Costs, plant shutdown costs, acquisition
integration costs or Uncompleted Acquisition Costs, Consolidated
Adjusted EBITDA for such period shall be increased by an amount, without
duplication, equal to any such costs payable in Cash and incurred by
Company during such period to the extent that such costs have reduced
Consolidated Net Income for such period, provided that the aggregate
amount of adjustments to Consolidated Adjusted EBITDA made pursuant to
this Section 6.8(d)(ii) for any period, together with any Permitted
Adjustments in respect of any Subject Transactions made pursuant to
clause (ii) of the definition of Permitted Adjustments for the same
period, shall not exceed 7.5% of pro forma Consolidated Adjusted EBITDA
(as reformulated) for such period;
(iii) with respect to any period during which the proceeds
of any capital contribution to, or issuance of Capital Stock of,
Holdings ("EQUITY PROCEEDS") have been applied to make mandatory or
voluntary prepayments of Loans, the components of Consolidated Adjusted
EBITDA and Consolidated Cash Interest Expense shall be calculated with
respect to such period on a pro forma basis (including only pro forma
adjustments which are factually supportable and are expected to have a
continuing impact, in each case determined on a basis consistent with
Article 11 of Regulation S-X promulgated under the Securities Act and as
interpreted by the staff of the Securities and Exchange Commission,
which pro forma adjustments shall be certified by the Chief Financial
Officer of Holdings) using historical financial statements which shall
be reformulated (after giving effect to any reformulation required under
clause (i) above) as if such Equity Proceeds had been received, and
applicable portion of the Loans prepaid, at the beginning of such
period;
(iv) with respect to any period including the Fiscal
Quarter ended September 30, 2002 or any prior Fiscal Quarter (each an
"HISTORICAL QUARTER"), Consolidated Adjusted EBITDA and Consolidated
Cash Interest Expense shall be calculated in accordance with
Schedule 6.8(d);
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(v) proceeds of the Xxxxxx Acquisition Senior
Subordinated Notes shall not be included in the determination of
Consolidated Total Debt for purposes of determining compliance with this
Section 6.8 for periods up to and including the Xxxxxx Acquisition
Closing Date if all such proceeds (A) are deposited in an escrow account
on the terms and conditions described in the offering circular relating
to the Xxxxxx Acquisition Senior Subordinated Notes and (B)(1) are used
to pay Xxxxxx Acquisition Financing Requirements on the Xxxxxx
Acquisition Closing Date or (2) used to prepay the Xxxxxx Acquisition
Senior Subordinated Notes if the Xxxxxx Acquisition Closing Date does
not occur on or prior to May 22, 2004; and
(vi) notwithstanding the foregoing provisions, this
Section 6.8(d) shall not apply to the financial covenant set forth in
Section 6.8(c) above with respect to the Xxxx Acquisition.
6.9. FUNDAMENTAL CHANGES; DISPOSITION OF ASSETS; ACQUISITIONS
. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, enter into any transaction of merger or consolidation, or
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor),
transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business, assets or property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible,
whether now owned or hereafter acquired, or acquire by purchase or otherwise
(other than purchases or other acquisitions of inventory, materials and
equipment in the ordinary course of business of Company and its Subsidiaries)
the business, property or fixed assets of, or Capital Stock or other evidence
of beneficial ownership of, any Person or any business line or unit or division
of any Person, except:
(a) any Subsidiary of Holdings may be merged with or into
Company or any Guarantor Subsidiary, or be liquidated, wound up or dissolved,
or all or any part of its business, property or assets may be conveyed, sold,
leased, transferred or otherwise disposed of, in one transaction or a series of
transactions, to Company or any Guarantor Subsidiary; provided, in the case of
such a merger, Company or such Guarantor Subsidiary, as applicable, shall be
the continuing or surviving Person;
(b) sales or other dispositions of assets that do not
constitute Asset Sales;
(c) Asset Sales in respect of (i) obsolete, worn out or surplus
property (including obsolete, worn out or surplus property acquired in a
Permitted Acquisition), (ii) property acquired in a Permitted Acquisition which
the Company or any of its Subsidiaries is legally required to divest or (iii)
other property (other than current assets) the proceeds of which (valued at the
principal amount thereof in the case of notes or other debt Securities and
valued at fair market value in the case of other non-Cash proceeds) are less
than $15,000,000 with respect to any single Asset Sale or series of related
Asset Sales pursuant to this clause (iii) and when aggregated with the proceeds
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of all such other Asset Sales made by Credit Parties pursuant to this clause
(iii) within the same Fiscal Year, are less than $25,000,000; provided, in each
of cases (i), (ii) and (iii) the consideration received for such property shall
be in an amount at least equal to the fair market value thereof (determined in
good faith by the board of directors of Holdings), no less than 75% of such
consideration shall be paid in Cash and all related Net Asset Sale Proceeds
shall be applied in accordance with Section 2.17(b);
(d) any Permitted Acquisition (including the Xxxx Acquisition)
by Company or any Guarantor Subsidiary;
(e) any Foreign Subsidiary may be merged with or into any other
Foreign Subsidiary, or be liquidated, wound up or dissolved, or all or any part
of the its business, property or assets may be conveyed, sold, leased,
transferred or otherwise disposed of, in one transaction or a series of
transactions, to any Foreign Subsidiary;
(f) Company may liquidate any of its Subsidiaries that has
total net assets (as shown on the most recent balance sheet of such Subsidiary
delivered to the Agents and at the time of liquidation) of $100,000 or less,
provided, any Restricted Junior Payments in connection with such liquidation
are made in accordance with Section 6.5;
(g) Sales of Capital Stock in any Subsidiary to qualify
directors or allow for investments by foreign nationals, in either case, to the
extent required by applicable law; and
(h) any Investment permitted under Section 6.7 and any grant of
a Permitted Lien.
6.10. DISPOSAL OF SUBSIDIARY INTERESTS
. Except for (i) Liens created under any of the Credit Documents
and (ii) any sale of all (but not less than all) of the Company's direct and
indirect interests in the Capital Stock of any Subsidiary in compliance with
the provisions of Section 6.9, no Credit Party shall, nor shall it permit any
of its Subsidiaries to, (a) directly or indirectly sell, assign, pledge or
otherwise encumber or dispose of any Capital Stock of any of its Subsidiaries,
except to qualify directors or allow for investments by foreign nationals, in
either case, if required by applicable law; or (b) permit any of its
Subsidiaries directly or indirectly to sell, assign, pledge or otherwise
encumber or dispose of any Capital Stock of any of its Subsidiaries, except to
another Credit Party (subject to the restrictions on such disposition otherwise
imposed hereunder), or to qualify directors if required by applicable law.
6.11. TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES
. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction (including the purchase, sale, lease or exchange of any property or
the rendering of any service) with any holder of 10% or more of any class of
Capital Stock of Holdings or any of its Subsidiaries or with any Affiliate of
Holdings, on terms that are less favorable to it or such Subsidiary, as the
case may be, than those that might be obtained at the time from a Person who is
not such a holder or Affiliate; provided, the foregoing restriction shall not
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apply to (a) any transaction between Company and any Wholly-Owned Guarantor
Subsidiary; (b) reasonable and customary fees paid to members of the board of
directors (or similar governing body) of Holdings and its Subsidiaries;
(c) compensation arrangements for officers and other employees of Holdings and
its Subsidiaries entered into in the ordinary course of business of Company and
its Subsidiaries; (d) transactions in connection with the 2002 Merger or the
Xxxx Acquisition; (e) any Restricted Junior Payment permitted to be paid
pursuant to Section 6.5(c), 6.5(d), or 6.5(e)(i) or 6.5(e)(iii); (f) any
issuance of Securities, or other payments, awards or grants in cash, Securities
or otherwise pursuant to, or the funding of, employment arrangements, stock
options and stock ownership plans (including the Employee Leverage Program)
approved by the board of directors of Holdings, in each case which are
otherwise consistent with this Agreement; (g) sales or issuances of Capital
Stock of Holdings to Affiliates of Company approved by the board of directors
of Holdings; and (h) sales of inventory or other product and arrangements in
respect of administrative, corporate overhead and insurance, legal and similar
expenses among Company and its Subsidiaries in the ordinary course of business.
6.12. CONDUCT OF BUSINESS
. From and after the Original Closing Date, no Credit Party
shall, nor shall it permit any of its Subsidiaries to, engage in any business
other than (a) the businesses engaged in by such Credit Party on the Original
Closing Date and similar or related businesses and (b) such other lines of
business as may be consented to by Requisite Lenders.
6.13. PERMITTED ACTIVITIES OF HOLDINGS
. Holdings shall not (a) incur, directly or indirectly, any
Indebtedness other than its Obligations under the Credit Documents or
guarantees in respect of Indebtedness of Company or any of its Subsidiaries
otherwise permitted under this Agreement and Indebtedness permitted under
Section 6.1(m); (b) create or suffer to exist any Lien upon any property or
assets now owned or hereafter acquired by it other than the Liens created under
the Collateral Documents to which it is a party or permitted pursuant to
Section 6.2; (c) engage in any business or activity or own any assets other
than (i) holding 100% of the Capital Stock of Company and, through Company, not
less than 80% of the Capital Stock of each of the Subsidiaries of Company;
(ii) performing its obligations and activities incidental thereto under the
Credit Documents, and to the extent not inconsistent therewith, the Related
Agreements, the Xxxxxx Merger Agreement and the Xxxx Merger Agreement, as
applicable; and (iii) making Restricted Junior Payments and Investments to the
extent permitted by this Agreement; (d) consolidate with or merge with or into,
or convey, transfer or lease all or substantially all its assets to, any
Person; (e) sell or otherwise dispose of any Capital Stock of Company; (f)
create or acquire any Subsidiary or make or own any Investment in any Person
other than Company and, through Company, the Subsidiaries of Company; or (g)
fail to hold itself out to the public as a legal entity separate and distinct
from all other Persons.
6.14. AMENDMENTS OR WAIVERS OF CERTAIN RELATED AGREEMENTS
. Except as set forth in Section 6.15, no Credit Party shall nor
shall it permit any of its Subsidiaries to, agree to any material amendment,
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restatement, supplement or other modification to, or waiver of, any of its
material rights under any Related Agreement or the Xxxxxx Merger Agreement
after the 2004 Effective Date or under the Xxxx Merger Agreement after the
Second Amendment Effective Date without in each case obtaining the prior
written consent of Requisite Lenders to such amendment, restatement, supplement
or other modification or waiver.
6.15. AMENDMENTS OR WAIVERS OF OR WITH RESPECT TO SUBORDINATED
INDEBTEDNESS
. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, amend or otherwise change the terms of any Subordinated
Indebtedness, or make any payment consistent with an amendment thereof or
change thereto, (a) if the effect of such amendment or change is to increase
the interest rate on such Subordinated Indebtedness, change (to earlier dates)
any dates upon which payments of principal or interest are due thereon, change
any event of default or condition to an event of default with respect thereto
(other than to eliminate any such event of default or increase any grace period
related thereto), change the redemption, prepayment or defeasance provisions
thereof, change the subordination provisions of such Senior Subordinated Notes
(or of any guaranty thereof), or (b) amend or otherwise change the covenants or
other provisions contained in any Subordinated Indebtedness not described in
clause (a) of this Section 6.15 if the effect of such amendment or change,
together with all other amendments or changes made, is to increase the
obligations of the obligor thereunder or to confer any additional
material rights on the holders of such Subordinated Indebtedness (or a trustee
or other representative on their behalf) which would be adverse to any Credit
Party or Lenders.
6.16. FISCAL YEAR
. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, change its Fiscal Year, provided however that Xxxx and its
Subsidiaries shall be permitted to change their respective Fiscal Years to that
of Company's on or after the Second Amendment Effective Date.
6.17. DERIVATIVE TRANSACTIONS
. No Credit Party shall enter into any agreement with respect to
any swap, forward, future or derivative transaction or option or similar
agreement involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial
or pricing indices or measures of economic, financial or pricing risk or value,
other than (a) Financial Hedge Agreements and (b) for the purposes of hedging
the actual exposure of Company and its Subsidiaries to fluctuations in the
price of resin or other raw materials used in the operations of Company and its
Subsidiaries and not for speculative purposes.
SECTION 7. GUARANTY
7.1. GUARANTY OF THE OBLIGATIONS
. Subject to the provisions of Section 7.2, Guarantors jointly
and severally hereby irrevocably and unconditionally guarantee to
Administrative Agent for the ratable benefit of the Beneficiaries the due and
punctual payment in full of all Obligations when the same shall become due,
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whether at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise (including amounts that would become due but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy Code,
11 U.S.C. {section} 362(a)) (collectively, the "GUARANTEED OBLIGATIONS").
Without limiting the obligations of Holdings under this Section 7, Holdings
shall become a co-obligor under the Notes, on a joint and several basis with
Company, and execute the Notes in such capacity.
7.2. CONTRIBUTION BY GUARANTORS
. All Guarantors desire to allocate among themselves
(collectively, the "CONTRIBUTING GUARANTORS"), in a fair and equitable manner,
their obligations arising under this Guaranty. Accordingly, in the event any
payment or distribution is made on any date by a Guarantor (a "FUNDING
GUARANTOR") under this Guaranty that exceeds its Fair Share as of such date,
such Funding Guarantor shall be entitled to a contribution from each of the
other Contributing Guarantors in the amount of such other Contributing
Guarantor's Fair Share Shortfall as of such date, with the result that all such
contributions will cause each Contributing Guarantor's Aggregate Payments to
equal its Fair Share as of such date. "FAIR SHARE" means, with respect to a
Contributing Guarantor as of any date of determination, an amount equal to
(a) the ratio of (i) the Fair Share Contribution Amount with respect to such
Contributing Guarantor to (ii) the aggregate of the Fair Share Contribution
Amounts with respect to all Contributing Guarantors multiplied by (b) the
aggregate amount paid or distributed on or before such date by all Funding
Guarantors under this Guaranty in respect of the obligations Guaranteed. "FAIR
SHARE SHORTFALL" means, with respect to a Contributing Guarantor as of any date
of determination, the excess, if any, of the Fair Share of such Contributing
Guarantor over the Aggregate Payments of such Contributing Guarantor. "FAIR
SHARE CONTRIBUTION AMOUNT" means, with respect to a Contributing Guarantor as
of any date of determination, the maximum aggregate amount of the obligations
of such Contributing Guarantor under this Guaranty that would not render its
obligations hereunder or thereunder subject to avoidance as a fraudulent
transfer or conveyance under Section 548 of Title 11 of the United States Code
or any comparable applicable provisions of state law; provided, solely for
purposes of calculating the "FAIR SHARE CONTRIBUTION AMOUNT" with respect to
any Contributing Guarantor for purposes of this Section 7.2, any assets or
liabilities of such Contributing Guarantor arising by virtue of any rights to
subrogation, reimbursement or indemnification or any rights to or obligations
of contribution hereunder shall not be considered as assets or liabilities of
such Contributing Guarantor. "AGGREGATE PAYMENTS" means, with respect to a
Contributing Guarantor as of any date of determination, an amount equal to
(1) the aggregate amount of all payments and distributions made on or before
such date by such Contributing Guarantor in respect of this Guaranty
(including, without limitation, in respect of this Section 7.2), minus (2) the
aggregate amount of all payments received on or before such date by such
Contributing Guarantor from the other Contributing Guarantors as contributions
under this Section 7.2. The amounts payable as contributions hereunder shall
be determined as of the date on which the related payment or distribution is
made by the applicable Funding Guarantor. The allocation among Contributing
Guarantors of their obligations as set forth in this Section 7.2 shall not be
construed in any way to limit the liability of any Contributing Guarantor
hereunder. Each Guarantor is a third party beneficiary to the contribution
agreement set forth in this Section 7.2.
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7.3. PAYMENT BY GUARANTORS
. Subject to Section 7.2, Guarantors hereby jointly and severally
agree, in furtherance of the foregoing and not in limitation of any other right
which any Beneficiary may have at law or in equity against any Guarantor by
virtue hereof, that upon the failure of Company to pay any of the Guaranteed
Obligations when and as the same shall become due, whether at stated maturity,
by required prepayment, declaration, acceleration, demand or otherwise
(including amounts that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. {section} 362(a)),
Guarantors will upon demand pay, or cause to be paid, in Cash, in same day
funds, to Administrative Agent for the ratable benefit of Beneficiaries, an
amount equal to the sum of the unpaid principal amount of all Guaranteed
Obligations then due as aforesaid, accrued and unpaid interest on such
Guaranteed Obligations (including interest which, but for Company's becoming
the subject of a case under the Bankruptcy Code, would have accrued on such
Guaranteed Obligations, whether or not a claim is allowed against Company for
such interest in the related bankruptcy case) and all other Guaranteed
Obligations then owed to Beneficiaries as aforesaid.
7.4. LIABILITY OF GUARANTORS ABSOLUTE
. Each Guarantor agrees that its obligations hereunder are
irrevocable, absolute, independent and unconditional and shall not be affected
by any circumstance which constitutes a legal or equitable discharge of a
guarantor or surety other than payment in full of the Guaranteed Obligations or
the release of such Guarantor permitted by the Credit Documents. In
furtherance of the foregoing and without limiting the generality thereof, each
Guarantor agrees as follows:
(a) this Guaranty is a guaranty of payment when due and not of
collectability. This Guaranty is a primary obligation of each Guarantor and
not merely a contract of surety;
(b) Administrative Agent may enforce this Guaranty upon the
occurrence of an Event of Default notwithstanding the existence of any dispute
between Company and any Beneficiary with respect to the existence of such Event
of Default;
(c) the obligations of each Guarantor hereunder are independent
of the obligations of Company and the obligations of any other guarantor
(including any other Guarantor) of the obligations of Company, and a separate
action or actions may be brought and prosecuted against such Guarantor whether
or not any action is brought against Company or any of such other guarantors
and whether or not Company is joined in any such action or actions;
(d) payment by any Guarantor of a portion, but not all, of the
Guaranteed Obligations shall in no way limit, affect, modify or abridge any
Guarantor's liability for any portion of the Guaranteed Obligations which has
not been paid. Without limiting the generality of the foregoing, if
Administrative Agent is awarded a judgment in any suit brought to enforce any
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Guarantor's covenant to pay a portion of the Guaranteed Obligations, such
judgment shall not be deemed to release such Guarantor from its covenant to pay
the portion of the Guaranteed Obligations that is not the subject of such suit,
and such judgment shall not, except to the extent satisfied by such Guarantor,
limit, affect, modify or abridge any other Guarantor's liability hereunder in
respect of the Guaranteed Obligations;
(e) any Beneficiary, upon such terms as it deems appropriate,
without notice or demand and without affecting the validity or enforceability
hereof or giving rise to any reduction, limitation, impairment, discharge or
termination of any Guarantor's liability hereunder, from time to time may
(i) renew, extend, accelerate, increase the rate of interest on, or otherwise
change the time, place, manner or terms of payment of the Guaranteed
Obligations; (ii) settle, compromise, release or discharge, or accept or refuse
any offer of performance with respect to, or substitutions for, the Guaranteed
Obligations or any agreement relating thereto and/or subordinate the payment of
the same to the payment of any other obligations; (iii) request and accept
other guaranties of the Guaranteed Obligations and take and hold security for
the payment hereof or the Guaranteed Obligations; (iv) release, surrender,
exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or
modify, with or without consideration, any security for payment of the
Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or
any other obligation of any Person (including any other Guarantor) with respect
to the Guaranteed Obligations; (v) enforce and apply any security now or
hereafter held by or for the benefit of such Beneficiary in respect hereof or
the Guaranteed Obligations and direct the order or manner of sale thereof, or
exercise any other right or remedy that such Beneficiary may have against any
such security, in each case as such Beneficiary in its discretion may determine
consistent herewith or the applicable Financial Hedge Agreement and any
applicable security agreement, including foreclosure on any such security
pursuant to one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable, and even though such action
operates to impair or extinguish any right of reimbursement or subrogation or
other right or remedy of any Guarantor against Company or any security for the
Guaranteed Obligations; and (vi) exercise any other rights available to it
under the Credit Documents or the Financial Hedge Agreements; and
(f) this Guaranty and the obligations of Guarantors hereunder
shall be valid and enforceable and shall not be subject to any reduction,
limitation, impairment, discharge or termination for any reason (other than
payment in full of the Guaranteed Obligations), including the occurrence of any
of the following, whether or not any Guarantor shall have had notice or
knowledge of any of them: (i) any failure or omission to assert or enforce or
agreement or election not to assert or enforce, or the stay or enjoining, by
order of court, by operation of law or otherwise, of the exercise or
enforcement of, any claim or demand or any right, power or remedy (whether
arising under the Credit Documents or the Financial Hedge Agreements, at law,
in equity or otherwise) with respect to the Guaranteed Obligations or any
agreement relating thereto, or with respect to any other guaranty of or
security for the payment of the Guaranteed Obligations; (ii) any rescission,
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waiver, amendment or modification of, or any consent to departure from, any of
the terms or provisions (including provisions relating to events of default)
hereof, any of the other Credit Documents, any of the Financial Hedge
Agreements or any agreement or instrument executed pursuant thereto, or of any
other guaranty or security for the Guaranteed Obligations, in each case whether
or not in accordance with the terms hereof or such Credit Document, such
Financial Hedge Agreement or any agreement relating to such other guaranty or
security; (iii) the Guaranteed Obligations, or any agreement relating thereto,
at any time being found to be illegal, invalid or unenforceable in any respect;
(iv) the application of payments received from any source (other than payments
received pursuant to the other Credit Documents or any of the Financial Hedge
Agreements or from the proceeds of any security for the Guaranteed Obligations,
except to the extent such security also serves as collateral for indebtedness
other than the Guaranteed Obligations) to the payment of indebtedness other
than the Guaranteed Obligations, even though any Beneficiary might have elected
to apply such payment to any part or all of the Guaranteed Obligations; (v) any
Beneficiary's consent to the change, reorganization or termination of the
corporate structure or existence of Holdings or any of its Subsidiaries and to
any corresponding restructuring of the Guaranteed Obligations; (vi) any failure
to perfect or continue perfection of a security interest in any collateral
which secures any of the Guaranteed Obligations; (vii) any defenses, set-offs
or counterclaims which Company may allege or assert against any Beneficiary in
respect of the Guaranteed Obligations, including failure of consideration,
breach of warranty, payment, statute of frauds, statute of limitations, accord
and satisfaction and usury; and (viii) any other act or thing or omission, or
delay to do any other act or thing, which may or might in any manner or to any
extent vary the risk of any Guarantor as an obligor in respect of the
Guaranteed Obligations.
7.5. WAIVERS BY GUARANTORS
. Each Guarantor hereby waives, for the benefit of Beneficiaries:
(a) any right to require any Beneficiary, as a condition of payment or
performance by such Guarantor, to (i) proceed against Company, any other
guarantor (including any other Guarantor) of the Guaranteed Obligations or any
other Person, (ii) proceed against or exhaust any security held from Company,
any such other guarantor or any other Person, (iii) proceed against or have
resort to any balance of any Deposit Account or credit on the books of any
Beneficiary in favor of Company or any other Person, or (iv) pursue any other
remedy in the power of any Beneficiary whatsoever; (b) any defense arising by
reason of the incapacity, lack of authority or any disability or other defense
of Company or any other Guarantor including any defense based on or arising out
of the lack of validity or the unenforceability of the Guaranteed Obligations
or any agreement or instrument relating thereto or by reason of the cessation
of the liability of Company or any other Guarantor from any cause other than
payment in full of the Guaranteed Obligations; (c) any defense based upon any
statute or rule of law which provides that the obligation of a surety must be
neither larger in amount nor in other respects more burdensome than that of the
principal; (d) any defense based upon any Beneficiary's errors or omissions in
the administration of the Guaranteed Obligations, except behavior which amounts
to bad faith; (e) (i) any principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms hereof and any
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legal or equitable discharge of such Guarantor's obligations hereunder,
(ii) the benefit of any statute of limitations affecting such Guarantor's
liability hereunder or the enforcement hereof, (iii) any rights to set-offs,
recoupments and counterclaims, and (iv) promptness, diligence and any
requirement that any Beneficiary protect, secure, perfect or insure any
security interest or lien or any property subject thereto; (f) notices,
demands, presentments, protests, notices of protest, notices of dishonor and
notices of any action or inaction, including acceptance hereof, notices of
default hereunder, the Financial Hedge Agreements or any agreement or
instrument related thereto, notices of any renewal, extension or modification
of the Guaranteed Obligations or any agreement related thereto, notices of any
extension of credit to Company and notices of any of the matters referred to in
Section 7.4 and any right to consent to any thereof; and (g) any defenses or
benefits that may be derived from or afforded by law which limit the liability
of or exonerate guarantors or sureties, or which may conflict with the terms
hereof.
7.6. GUARANTORS' RIGHTS OF SUBROGATION, CONTRIBUTION, ETC
. Until the Guaranteed Obligations shall have been indefeasibly
paid in full and the Revolving Commitments shall have terminated and all
Letters of Credit shall have expired or been cancelled, each Guarantor hereby
waives any claim, right or remedy, direct or indirect, that such Guarantor now
has or may hereafter have against Company or any other Guarantor or any of its
assets in connection with this Guaranty or the performance by such Guarantor of
its obligations hereunder, in each case whether such claim, right or remedy
arises in equity, under contract, by statute, under common law or otherwise and
including without limitation (a) any right of subrogation, reimbursement or
indemnification that such Guarantor now has or may hereafter have against
Company with respect to the Guaranteed Obligations, (b) any right to enforce,
or to participate in, any claim, right or remedy that any Beneficiary now has
or may hereafter have against Company, and (c) any benefit of, and any right to
participate in, any collateral or security now or hereafter held by any
Beneficiary. In addition, until the Guaranteed Obligations shall have been
indefeasibly paid in full and the Revolving Commitments shall have terminated
and all Letters of Credit shall have expired or been cancelled, each Guarantor
shall withhold exercise of any right of contribution such Guarantor may have
against any other guarantor (including any other Guarantor) of the Guaranteed
Obligations, including, without limitation, any such right of contribution as
contemplated by Section 7.2. Each Guarantor further agrees that, to the extent
the waiver or agreement to withhold the exercise of its rights of subrogation,
reimbursement, indemnification and contribution as set forth herein is found by
a court of competent jurisdiction to be void or voidable for any reason, any
rights of subrogation, reimbursement or indemnification such Guarantor may have
against Company or against any collateral or security, and any rights of
contribution such Guarantor may have against any such other guarantor, shall be
junior and subordinate to any rights any Beneficiary may have against Company,
to all right, title and interest any Beneficiary may have in any such
collateral or security, and to any right any Beneficiary may have against such
other guarantor. If any amount shall be paid to any Guarantor on account of
any such subrogation, reimbursement, indemnification or contribution rights at
any time when all Guaranteed Obligations shall not have been finally and
indefeasibly paid in full, such amount shall be held in trust for
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Administrative Agent on behalf of Beneficiaries and shall forthwith be paid
over to Administrative Agent for the benefit of Beneficiaries to be credited
and applied against the Guaranteed Obligations, whether matured or unmatured,
in accordance with the terms hereof.
7.7. SUBORDINATION OF OTHER OBLIGATIONS
. Any Indebtedness of Company or any Guarantor now or hereafter
held by any Guarantor (the "OBLIGEE GUARANTOR") is hereby subordinated in right
of payment to the Guaranteed Obligations, and any such indebtedness collected
or received by the Obligee Guarantor after an Event of Default has occurred and
is continuing shall be held in trust for Administrative Agent on behalf of
Beneficiaries and shall forthwith be paid over to Administrative Agent for the
benefit of Beneficiaries to be credited and applied against the Guaranteed
Obligations but without affecting, impairing or limiting in any manner the
liability of the Obligee Guarantor under any other provision hereof.
7.8. CONTINUING GUARANTY
. This Guaranty is a continuing guaranty and shall remain in
effect until all of the Guaranteed Obligations shall have been paid in full and
the Revolving Commitments shall have terminated and all Letters of Credit shall
have expired or been cancelled. Each Guarantor hereby irrevocably waives any
right to revoke this Guaranty as to future transactions giving rise to any
Guaranteed Obligations.
7.9. AUTHORITY OF GUARANTORS OR COMPANY
. It is not necessary for any Beneficiary to inquire into the
capacity or powers of any Guarantor or Company or the officers, directors or
any agents acting or purporting to act on behalf of any of them.
7.10. FINANCIAL CONDITION OF COMPANY
. Any Credit Extension may be made to Company or continued from
time to time, and any Financial Hedge Agreements may be entered into from time
to time, in each case without notice to or authorization from any Guarantor
regardless of the financial or other condition of Company at the time of any
such grant or continuation or at the time such Financial Hedge Agreement is
entered into, as the case may be. No Beneficiary shall have any obligation to
disclose or discuss with any Guarantor its assessment, or any Guarantor's
assessment, of the financial condition of Company. Each Guarantor has adequate
means to obtain information from Company on a continuing basis concerning the
financial condition of Company and its ability to perform its obligations under
the Credit Documents and the Financial Hedge Agreements, and each Guarantor
assumes the responsibility for being and keeping informed of the financial
condition of Company and of all circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations. Each Guarantor hereby waives and
relinquishes any duty on the part of any Beneficiary to disclose any matter,
fact or thing relating to the business, operations or conditions of Company now
known or hereafter known by any Beneficiary.
7.11. BANKRUPTCY, ETC
. Without limiting any Guarantor's ability to file a voluntary
bankruptcy petition in respect of itself, so long as any Guaranteed Obligations
remain outstanding, no Guarantor shall, without the prior written consent of
Administrative Agent acting pursuant to the instructions of Requisite Lenders,
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commence or join with any other Person in commencing any bankruptcy,
reorganization or insolvency case or proceeding of or against Company or any
other Guarantor. The obligations of Guarantors hereunder shall not be reduced,
limited, impaired, discharged, deferred, suspended or terminated by any case or
proceeding, voluntary or involuntary, involving the bankruptcy, insolvency,
receivership, reorganization, liquidation or arrangement of Company or any
other Guarantor or by any defense which Company or any other Guarantor may have
by reason of the order, decree or decision of any court or administrative body
resulting from any such proceeding.
(a) Each Guarantor acknowledges and agrees that any interest on
any portion of the Guaranteed Obligations which accrues after the commencement
of any case or proceeding referred to in clause (a) above (or, if interest on
any portion of the Guaranteed Obligations ceases to accrue by operation of law
by reason of the commencement of such case or proceeding, such interest as
would have accrued on such portion of the Guaranteed Obligations if such case
or proceeding had not been commenced) shall be included in the Guaranteed
Obligations because it is the intention of Guarantors and Beneficiaries that
the Guaranteed Obligations which are guaranteed by Guarantors pursuant hereto
should be determined without regard to any rule of law or order which may
relieve Company of any portion of such Guaranteed Obligations. Guarantors will
permit any trustee in bankruptcy, receiver, debtor in possession, assignee for
the benefit of creditors or similar person to pay Administrative Agent, or
allow the claim of Administrative Agent in respect of, any such interest
accruing after the date on which such case or proceeding is commenced.
(b) In the event that all or any portion of the Guaranteed
Obligations are paid by Company, the obligations of Guarantors hereunder shall
continue and remain in full force and effect or be reinstated, as the case may
be, in the event that all or any part of such payment(s) are rescinded or
recovered directly or indirectly from any Beneficiary as a preference,
fraudulent transfer or otherwise, and any such payments which are so rescinded
or recovered shall constitute Guaranteed Obligations for all purposes
hereunder.
7.12. DISCHARGE OF GUARANTY UPON SALE OF GUARANTOR
. If all of the Capital Stock of any Guarantor or any of its
successors in interest hereunder shall be sold or otherwise disposed of
(including by merger or consolidation) in a transaction consummated in
accordance with the terms and conditions hereof, the Guaranty of such Guarantor
or such successor in interest, as the case may be, hereunder shall
automatically be discharged and released without any further action by any
Beneficiary or any other Person effective as of the time of such disposition.
SECTION 8. EVENTS OF DEFAULT
8.1. EVENTS OF DEFAULT
. If any one or more of the following conditions or events shall
occur:
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(a) Failure to Make Payments When Due. Failure by Company to
pay (i) when due any installment of principal of any Loan, whether at stated
maturity, by acceleration, by notice of voluntary prepayment, by mandatory
prepayment or otherwise; (ii) when due any amount payable to Issuing Bank in
reimbursement of any Letter of Credit Disbursement; or (iii) any interest on
any Loan or any fee or any other amount due hereunder within three days after
the date due; or
(b) Default in Other Agreements. (i) Failure of any Credit
Party or any of their respective Subsidiaries to pay when due any principal of
or interest on or any other amount payable in respect of one or more items of
Indebtedness (other than Indebtedness referred to in Section 8.1(a)) in an
individual principal amount of $10,000,000 or more or with an aggregate
principal amount of $15,000,000 or more, in each case beyond the grace period,
if any, provided therefor; or (ii) breach or default by any Credit Party
with respect to any other material term of (1) one or more items of
Indebtedness in the individual or aggregate principal amounts referred to in
clause (i) above or (2) any loan agreement, mortgage, indenture or other
agreement relating to such item(s) of Indebtedness, in each case beyond the
grace period, if any, provided therefor, if the effect of such breach or
default is to cause, or to permit the holder or holders of that Indebtedness
(or a trustee on behalf of such holder or holders), to cause, that
Indebtedness to become or be declared due and payable (or redeemable) prior
to its stated maturity or the stated maturity of any underlying obligation,
as the case may be; or
(c) Breach of Certain Covenants. Failure of any Credit Party
to perform or comply with any term or condition contained in Section 2.8,
Section 5.2 (solely in respect of the Company), Section 5.14 or Section 6 or
in Section 3 of the Pledge and Security Agreement; or
(d) Breach of Representations, Etc. Any representation,
warranty, certification or other statement made or deemed made by any Credit
Party in any Credit Document or in any statement or certificate at any time
given by any Credit Party or any of its Subsidiaries in writing pursuant hereto
or thereto shall be false in any material respect as of the date made or deemed
made; or
(e) Other Defaults Under Credit Documents. Any Credit Party
shall default in the performance of or compliance with any term contained
herein or any of the other Credit Documents, other than any such term referred
to in any other Section of this Section 8.1, and such default shall not have
been remedied or waived within 30 days after the earlier of (i) an Authorized
Officer of Company or Holdings becoming aware of such default or (ii) receipt
by Company of notice from Administrative Agent or any Lender of such default;
or
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) A court of competent jurisdiction shall enter a decree or order for relief
in respect of Holdings or any of its Subsidiaries (other than Excluded Foreign
Subsidiaries) in an involuntary case under the Bankruptcy Code or under any
other applicable bankruptcy, insolvency or similar law now or hereafter in
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effect, which decree or order is not stayed; or any other similar relief shall
be granted under any applicable federal, state or foreign law; or (ii) an
involuntary case shall be commenced against Holdings or any of its Subsidiaries
(other than an Excluded Foreign Subsidiary) under the Bankruptcy Code or under
any other applicable bankruptcy, insolvency or similar law now or hereafter in
effect; or a decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over Holdings or any of its Subsidiaries
(other than an Excluded Foreign Subsidiary), or over all or a substantial part
of its property, shall have been entered; or there shall have occurred the
involuntary appointment of an interim receiver, trustee or other custodian of
Holdings or any of its Subsidiaries (other than an Excluded Foreign Subsidiary)
for all or a substantial part of its property; or a warrant of attachment,
execution or similar process shall have been issued against any substantial
part of the property of Holdings or any of its Subsidiaries (other than an
Excluded Foreign Subsidiary), and any such event described in this clause
(ii) shall continue for 60 days without having been dismissed, bonded or
discharged; or
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc.
(i) Holdings or any of its Subsidiaries (other than an Excluded Foreign
Subsidiary) shall have an order for relief entered with respect to it or shall
commence a voluntary case under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect, or
shall consent to the entry of an order for relief in an involuntary case, or to
the conversion of an involuntary case to a voluntary case, under any such law,
or shall consent to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of its property; or
Holdings or any of its Subsidiaries (other than Excluded Foreign Subsidiaries)
shall make any assignment for the benefit of creditors; or (ii) Holdings or any
of its Subsidiaries (other than an Excluded Foreign Subsidiary) shall be
unable, or shall fail generally, or shall admit in writing its inability, to
pay its debts as such debts become due; or the board of directors (or similar
governing body or any committee thereof) of Holdings or any of its Subsidiaries
(other than an Excluded Foreign Subsidiary) shall adopt any resolution or
otherwise authorize any action to approve any of the actions referred to herein
or in Section 8.1(f); or
(h) Judgments and Attachments. Any money judgment, writ or
warrant of attachment or similar process involving (i) in any individual case
an amount in excess of $10,000,000 or (ii) in the aggregate at any time an
amount in excess of $15,000,000 (in either case to the extent not adequately
covered by insurance as to which a solvent and unaffiliated insurance company
has acknowledged coverage) shall be entered or filed against Holdings or any
of its Subsidiaries or any of their respective assets and shall remain
undischarged, unvacated, unbonded or unstayed for a period of 60 days (or in
any event later than five days prior to the date of any proposed sale
thereunder); or
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(i) Dissolution. Any order, judgment or decree shall be
entered against any Credit Party decreeing the dissolution or split up of such
Credit Party and such order shall remain undischarged or unstayed for a period
in excess of 30 days; or
(j) Employee Benefit Plans. (i) There shall occur one or more
ERISA Events which individually or in the aggregate (A) have or could
reasonably be expected to have a Material Adverse Effect, (B) have resulted in
liabilities of Holdings, its Subsidiaries or any of their ERISA Affiliates,
taken together, in excess of $10,000,000 which liabilities (1) have continued
for a period of 60 days without being paid, waived or otherwise discharged and
(2) are not being contested in good faith by appropriate proceedings or (ii)
there shall be imposed a Lien or security interest under Section 401(a)(29) or
Section 412(n) of the Internal Revenue Code or under ERISA on Collateral which
Lien or security interest (1) has continued in effect for a period of 60 days
without being discharged and (2) is not being contested in good faith by
appropriate proceedings; or
(k) Change of Control. A Change of Control shall occur; or
(l) Guaranties, Collateral Documents and other Credit
Documents. At any time after the execution and delivery thereof, (i) the
Guaranty for any reason, other than the satisfaction in full of all
Obligations, shall cease to be in full force and effect (other than in
accordance with its terms) or shall be declared to be null and void or any
Guarantor shall repudiate its obligations thereunder, (ii) this Agreement or
any Collateral Document ceases to be in full force and effect (other than by
reason of a release of Collateral in accordance with the terms hereof or
thereof or the satisfaction in full of the Obligations in accordance with the
terms hereof) or shall be declared null and void, or Collateral Agent shall not
have or shall cease to have a valid and perfected Lien in any Collateral
purported to be covered by the Collateral Documents with the priority required
by the relevant Collateral Document (unless released pursuant to the terms of
the Credit Documents), in each case for any reason other than the failure of
Collateral Agent or any Secured Party to take any action within its control, or
(iii) any Credit Party shall contest the validity or enforceability of any
Credit Document in writing or deny in writing that it has any further
liability, including with respect to future advances by Lenders, under any
Credit Document to which it is a party;
THEN, (1) upon the occurrence of any Event of Default described in Section 8.1
(f) or 8.1(g) with respect to Company or Holdings, automatically, and (2) so
long as any other Event of Default shall be continuing, at the request of
(or with the consent of) Requisite Lenders, upon notice to Company by
Administrative Agent, (A) the Revolving Commitments, if any, of each Lender
having such Revolving Commitments and the obligation of Issuing Bank to issue
any Letter of Credit shall immediately terminate; (B) each of the following
shall immediately become due and payable, in each case without presentment,
demand, protest or other requirements of any kind, all of which are hereby
expressly waived by each Credit Party: (I) the unpaid principal amount of and
accrued interest on the Loans, (II) an amount equal to the maximum amount
that may at any time be drawn
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under all Letters of Credit then outstanding (regardless of whether any
beneficiary under any such Letter of Credit shall have presented, or shall be
entitled at such time to present, the drafts or other documents or certificates
required to draw under such Letters of Credit), and (III) all other
Obligations; provided, the foregoing shall not affect in any way the
obligations of Lenders under Section 2.3(b)(iv) or Section 2.5(e); (C)
Administrative Agent may cause the Collateral Agent to enforce any and all
Liens and security interests created pursuant to Collateral Documents; and
(D) Administrative Agent shall direct Company to pay (and Company hereby agrees
upon receipt of such notice, or upon the occurrence of any Event of Default
specified in Section 8.1(f) and (g) to pay) to Administrative Agent such
additional amounts of cash, to be held as security for Company's reimbursement
Obligations in respect of Letters of Credit then outstanding, equal to the
Letter of Credit Usage at such time.
8.2. COMPANY'S RIGHT TO CURE
.
(a) Financial Performance Covenants. Notwithstanding anything
to the contrary contained in Section 8.1, in the event that Holdings fails to
comply with the requirements of any of the covenants set forth in Section 6.8
of this Agreement, until the expiration of the 10th day subsequent to the
relevant date of determination of compliance with any of such covenants,
Holdings shall have the right to issue Permitted Cure Securities for Cash or
otherwise receive Cash contributions to the capital of Holdings (which shall
contribute all such Cash to the capital of Company) (collectively, the "CURE
RIGHT"), and upon the receipt by Company of such Cash (the "CURE AMOUNT")
pursuant to the exercise by Holdings of such Cure Right such covenant set forth
in Section 6.8 of this Agreement shall be recalculated giving effect to the
following pro forma adjustments:
(i) Consolidated Adjusted EBITDA shall be increased, solely for
the purpose of determining compliance with the covenants in Section 6.8
of this Agreement and not for any other purpose under this Agreement, by
an amount equal to the Cure Amount; and
(ii) If, after giving effect to the foregoing recalculations,
Company shall then be in compliance with the requirements of the
covenants in Section 6.8 of this Agreement, Company shall be deemed to
have satisfied the requirements of such covenants as of the relevant
date of determination with the same effect as though there had been no
failure to comply therewith at such date, and the applicable breach or
default of such covenants that had occurred shall be deemed cured for
purposes of this Agreement (it being understood that the Cure Amount
shall be applied to increase Consolidated Adjusted EBITDA (I) for the
Fiscal Quarter in which Holdings shall have received the Cure Amount and
(II) for any four Fiscal Quarter period that includes the Fiscal Quarter
in which Holdings shall have received the Cure Amount, in each case
solely for the purposes set forth in this Section 8.2).
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(b) Limitation on Exercise of Cure Right. Notwithstanding
anything herein to the contrary, (i) in each four-Fiscal-Quarter period there
shall be at least two Fiscal Quarters 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) the Cure Amount shall be no greater than the amount required for
purposes of complying with the covenants set forth in Section 6.8 of this
Agreement for the most recently completed four fiscal-quarter period of Company
for which financial statements have been delivered pursuant to Section 5.1(b).
SECTION 9. AGENTS
9.1. APPOINTMENT OF AGENTS
. GSCP and JPMCB are hereby appointed Co-Syndication Agents
hereunder, and each Lender hereby authorizes Co-Syndication Agents to act as
its agents in accordance with the terms hereof and the other Credit Documents.
DBTCA is hereby appointed Administrative Agent hereunder and under the other
Credit Documents and each Lender hereby authorizes Administrative Agent to act
as its agent in accordance with the terms hereof and the other Credit
Documents. DBTCA is hereby appointed Collateral Agent hereunder and under the
other Credit Documents and each Lender hereby authorizes Collateral Agent to
act as its agent in accordance with the terms hereof and the other Credit
Documents. Each Agent hereby agrees to act upon the express conditions
contained herein and the other Credit Documents, as applicable. The provisions
of this Section 9 are solely for the benefit of Agents and Lenders and no
Credit Party shall have any rights as a third party beneficiary of any of the
provisions thereof. In performing its functions and duties hereunder, each
Agent shall act solely as an agent of Lenders and does not assume and shall not
be deemed to have assumed any obligation towards or relationship of agency or
trust with or for Holdings or any of its Subsidiaries. Each Co-Syndication
Agent, without consent of or notice to any party hereto, may assign any and all
of its rights or obligations hereunder to any of its Affiliates. As of the
Second Amendment Effective Date, each of GSCP and JPMCB, in its respective
capacity as Co-Syndication Agent, and General Electric Capital Corporation and
The Royal Bank of Scotland, in their capacities as Co-Documentation Agents,
shall not have any obligations but shall be entitled to all benefits of this
Section 9.
9.2. POWERS AND DUTIES
. Each Lender irrevocably authorizes each Agent to take such
action on such Lender's behalf and to exercise such powers, rights and remedies
hereunder and under the other Credit Documents as are specifically delegated or
granted to such Agent by the terms hereof and thereof, together with such
powers, rights and remedies as are reasonably incidental thereto. Without
limiting the foregoing, Collateral Agent is expressly authorized to execute any
and all documents and instruments with respect to the Collateral and the rights
of the Lenders and each Issuing Bank with respect thereto and to act as
Collateral Agent on behalf of the Lenders and each Issuing Bank, in each case
as contemplated by and in accordance with the terms and provisions of this
Agreement and the other Credit Documents. Each Agent shall have only those
duties and responsibilities that are expressly specified herein and the other
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Credit Documents. Each Agent may exercise such powers, rights and remedies and
perform such duties by or through its agents or employees. No Agent shall
have, by reason hereof or any of the other Credit Documents, a fiduciary
relationship in respect of any Lender; and nothing herein or any of the other
Credit Documents, expressed or implied, is intended to or shall be so construed
as to impose upon any Agent any obligations in respect hereof or any of the
other Credit Documents except as expressly set forth herein or therein.
9.3. GENERAL IMMUNITY
.
(a) No Responsibility for Certain Matters. No Agent shall have
any duties or obligations except those expressly set forth herein, nor shall
any Agent be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing. Without limiting the
generality of the foregoing, no Agent shall be responsible to any Lender for
the execution, effectiveness, genuineness, validity, enforceability,
collectability or sufficiency hereof or any other Credit Document or for any
representations, warranties, recitals or statements made herein or therein or
made in any written or oral statements or in any financial or other statements,
instruments, reports or certificates or any other documents furnished or made
by any Agent to Lenders or by or on behalf of any Credit Party to any Agent or
any Lender in connection with the Credit Documents and the transactions
contemplated thereby or for the financial condition or business affairs of any
Credit Party or any other Person liable for the payment of any Obligations, nor
shall any Agent be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or agreements
contained in any of the Credit Documents or as to the use of the proceeds of
the Loans or as to the existence or possible existence of any Event of Default
or Default. Except as expressly set forth herein, no Agent shall have any duty
to disclose, and shall not be liable for the failure to disclose, any
information relating to any Credit Party that is communicated to or obtained by
such Agent or any of its Affiliates in any capacity. Anything contained herein
to the contrary notwithstanding, Administrative Agent shall not have any
liability arising from confirmations of the amount of outstanding Loans or the
Letter of Credit Usage or the component amounts thereof.
(b) Exculpatory Provisions. No Agent nor any of its officers,
partners, directors, employees or agents shall be liable to Lenders for any
action taken or omitted by any Agent under or in connection with any of the
Credit Documents except to the extent caused by such Agent's gross negligence
or willful misconduct. Each Agent shall be entitled to refrain from any act or
the taking of any action (including the failure to take an action) in
connection herewith or any of the other Credit Documents or from the exercise
of any power, discretion or authority vested in it hereunder or thereunder
unless and until such Agent shall have received instructions in respect thereof
from Requisite Lenders (or such other Lenders as may be required to give such
instructions under Section 10.5) and, upon receipt of such instructions from
Requisite Lenders (or such other Lenders, as the case may be), such Agent shall
be entitled to act or (where so instructed) refrain from acting, or to exercise
such power, discretion or authority, in accordance with such instructions. Any
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Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed
or sent by the proper Person. Any Agent also may rely upon any statement made
to it orally or by telephone and believed by it to be made by the proper
Person, and shall not incur any liability for relying thereon. Any Agent may
consult with legal counsel (who may be counsel for Company), 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.
9.4. AGENTS ENTITLED TO ACT AS LENDER
. The agency hereby created shall in no way impair or affect any
of the rights and powers of, or impose any duties or obligations upon, any
Agent in its individual capacity as a Lender hereunder. With respect to its
participation in the Loans and the Letters of Credit, each Agent shall have the
same rights and powers hereunder as any other Lender and may exercise the same
as if it were not performing the duties and functions delegated to it
hereunder, and the term "Lender" shall, unless the context clearly otherwise
indicates, include each Agent in its individual capacity. Any Agent and its
Affiliates may accept deposits from, lend money to, own securities of, and
generally engage in any kind of banking, trust, financial advisory or other
business with Holdings or any of its Affiliates as if it were not performing
the duties specified herein, and may accept fees and other consideration from
Company for services in connection herewith and otherwise without having to
account for the same to Lenders.
9.5. LENDERS' REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENT
. Each Lender represents and warrants that it has made its own
independent investigation of the financial condition and affairs of Holdings
and its Subsidiaries in connection with Credit Extensions hereunder and that it
has made and shall continue to make its own appraisal of the creditworthiness
of Holdings and its Subsidiaries. No Agent shall have any duty or
responsibility, either initially or on a continuing basis, to make any such
investigation or any such appraisal on behalf of Lenders or to provide any
Lender with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans or at any time or
times thereafter, and no Agent shall have any responsibility with respect to
the accuracy of or the completeness of any information provided to Lenders.
9.6. RIGHT TO INDEMNITY
. Each Lender, in proportion to its Pro Rata Share, severally
agrees to indemnify each Agent, to the extent that such Agent shall not have
been reimbursed by any Credit Party, for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, fees, expenses (including counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against such Agent in exercising its powers, rights and
remedies or performing its duties hereunder or under the other Credit Documents
or otherwise in its capacity as such Agent in any way relating to or arising
out hereof or the other Credit Documents; provided, no Lender shall be liable
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for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, fees, expenses or disbursements
resulting from such Agent's gross negligence or willful misconduct. If any
indemnity furnished to any Agent for any purpose shall, in the opinion of such
Agent, be insufficient or become impaired, such Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until
such additional indemnity is furnished; provided, in no event shall this
sentence require any Lender to indemnify any Agent against any liability,
obligation, loss, damage, penalty, action, judgment, suit, claim, cost, fee,
expense or disbursement in excess of such Lender's Pro Rata Share thereof; and
provided, further, this sentence shall not be deemed to require any Lender to
indemnify any Agent against any liability, obligation, loss, damage, penalty,
action, judgment, suit, claim, cost, fee, expense or disbursement described in
the proviso in the immediately preceding sentence.
9.7. SUB-AGENTS
. Each Agent may perform any and all its duties and exercise its
rights and powers by or through any one or more sub-agents appointed by such
Agent. Each Agent and any such sub-agent may perform any and all its duties
and exercise its rights and powers through their respective Affiliates. The
exculpatory provisions of the preceding paragraphs shall apply to any such sub-
agent and to the Affiliates of each Agent and any such sub-agent, and shall
apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as such Agent.
9.8. SUCCESSOR ADMINISTRATIVE AGENT, COLLATERAL AGENT AND SWING LINE
LENDER
.
(a) Administrative Agent and Collateral Agent. Subject to the
appointment and acceptance of a successor Administrative Agent or successor
Collateral Agent, as applicable, as provided in this paragraph, each of
Administrative Agent and Collateral Agent may resign at any time by giving
prior written notice thereof to Lenders and Company, and each of Administrative
Agent and Collateral Agent may be removed at any time with or without cause by
an instrument or concurrent instruments in writing delivered to Company and
Administrative Agent or Collateral Agent, as applicable, and signed by
Requisite Lenders. Upon any such notice of resignation or any such removal,
Requisite Lenders shall have the right, upon five Business Days' notice to
Company, to appoint a successor Administrative Agent or Collateral Agent with
Company's consent (not to be unreasonably withheld) unless an Event of Default
has occurred and is continuing or such successor is a Lender, in each of which
cases Company's consent need not be obtained. In each case, if no successor
shall have been so appointed by Requisite Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent or retiring
Collateral Agent, as applicable, gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of Lenders, appoint a successor
Administrative Agent or successor Collateral Agent, as applicable. Upon the
acceptance of any appointment as Administrative Agent or Collateral Agent
hereunder by a successor Administrative Agent or Collateral Agent, that
successor Administrative Agent or Collateral Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
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retiring or removed Administrative Agent or Collateral Agent and the retiring
or removed Administrative Agent or Collateral Agent shall promptly (i) transfer
to such successor Administrative Agent all sums, Securities and other items of
Collateral held under the Collateral Documents, together with all records and
other documents necessary or appropriate in connection with the performance of
the duties of the successor Administrative Agent or Collateral Agent under the
Credit Documents, and (ii) execute and deliver to such successor Administrative
Agent or Collateral Agent such amendments to financing statements, and take
such other actions, as may be necessary or appropriate in connection with the
assignment to such successor Administrative Agent or Collateral Agent of the
security interests created under the Collateral Documents, whereupon such
retiring or removed Administrative Agent or Collateral Agent shall be
discharged from its duties and obligations hereunder. After any retiring or
removed Administrative Agent's or Collateral Agent's resignation or removal
hereunder as Administrative Agent or Collateral Agent, the provisions of this
Section 9 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent hereunder.
(b) Swing Line Lender. Swing Line Lender may be replaced at
any time by written agreement among Company, Administrative Agent, the replaced
Swing Line Lender and the successor Swing Line Lender. Administrative Agent
shall notify the Lenders of any such replacement of Swing Line Lender. At the
time any such replacement shall become effective, (i) Company shall prepay any
outstanding Swing Line Loans made by the retiring or removed Swing Line Lender,
(ii) upon such prepayment, the retiring or removed Swing Line Lender shall
surrender any Swing Line Note held by it to Company for cancellation, and
(iii) Company shall issue, if so requested by successor Swing Line Loan Lender,
a new Swing Line Note to the successor Swing Line Lender, in the principal
amount of the Swing Line Loan Sublimit then in effect and with other
appropriate insertions.
9.9. COLLATERAL DOCUMENTS AND GUARANTY
.
(a) Agents under Collateral Documents and Guaranty. Each
Lender hereby further authorizes Administrative Agent or Collateral Agent, as
applicable, on behalf of and for the benefit of Lenders, to be the agent for
and representative of Lenders with respect to the Guaranty, the Collateral and
the Collateral Documents. Subject to Section 10.5, without further written
consent or authorization from Lenders, Administrative Agent or Collateral
Agent, as applicable may execute any documents or instruments necessary to
(i) release any Lien encumbering any item of Collateral that is the subject
of a sale or other disposition of assets permitted hereby or to which
Requisite Lenders (or such other Lenders as may be required to give such
consent under Section 10.5) have otherwise consented, (ii) release any
Guarantor from the Guaranty pursuant to Section 7.12 or with respect to
which Requisite Lenders (or such other Lenders as may be required to
give such consent under Section 10.5) have otherwise consented, or (iii)
release any Lien and any Guarantor from the Guaranty upon payment in full
in cash of the Loans and all other Obligations under the Credit
Documents (other than unasserted contingent and indemnification obligations),
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termination of all Commitments (including commitments of the Issuing Banks to
issue Letters of Credit) and reduction of the Letter of Credit Exposure to zero
(or the making of other arrangements satisfactory to Administrative Agent and
each Issuing Bank).
(b) Right to Realize on Collateral and Enforce Guaranty.
Anything contained in any of the Credit Documents to the contrary
notwithstanding, Company, Administrative Agent and each Lender hereby agree
that (i) no Lender shall have any right individually to realize upon any of the
Collateral or to enforce the Guaranty, it being understood and agreed that all
powers, rights and remedies hereunder may be exercised solely by Administrative
Agent, on behalf of Lenders in accordance with the terms hereof and all powers,
rights and remedies under the Collateral Documents may be exercised solely by
Collateral Agent, and (ii) in the event of a foreclosure by Collateral Agent on
any of the Collateral pursuant to a public or private sale, Collateral Agent or
any Lender may be the purchaser of any or all of such Collateral at any such
sale and Collateral Agent, as agent for and representative of Secured Parties
(but not any Lender or Lenders in its or their respective individual capacities
unless Requisite Lenders shall otherwise agree in writing), shall be entitled,
for the purpose of bidding and making settlement or payment of the purchase
price for all or any portion of the Collateral sold at any such public or
private sale, to use and apply any of the Obligations as a credit on account of
the purchase price for any collateral payable by Collateral Agent at such sale.
SECTION 10. MISCELLANEOUS
10.1. NOTICES
. Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given to a Credit Party,
Co-Syndication Agent, Collateral Agent, Administrative Agent, Swing Line Lender
or any Issuing Bank shall be sent to such Person's address as set forth on
Appendix B or in the other relevant Credit Document, and in the case of any
Lender, the address as indicated on Appendix B or otherwise indicated to
Administrative Agent in writing. Each notice hereunder shall be in writing and
may be personally served, telexed or sent by telefacsimile or United States
mail or courier service and shall be deemed to have been received when
delivered in person or by courier service and signed for against receipt
thereof, upon receipt of telefacsimile or telex, or three Business Days after
depositing it in the United States mail with postage prepaid and properly
addressed; provided, no notice to any Agent, Swing Line Lender or any Issuing
Bank shall be effective until received by such Person.
10.2. EXPENSES
. Whether or not the transactions contemplated hereby shall be
consummated, Company agrees to pay promptly (a) all the actual and reasonable
costs and expenses of preparation of the Credit Documents and any consents,
amendments, waivers or other modifications thereto; (b) all the costs of
furnishing all opinions by counsel for Company and the other Credit Parties;
(c) the reasonable out-of-pocket fees, expenses and disbursements of Agents
(including, without limitation, the fees, expenses and disbursements of outside
counsel to Agents) in connection with the negotiation, preparation, execution
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and administration of the Credit Documents and any consents, amendments,
waivers or other modifications thereto and any other documents or matters
requested by Company; (d) all the out-of-pocket actual costs and reasonable
expenses of creating and perfecting Liens in favor of Collateral Agent, for the
benefit of Lenders pursuant hereto, including filing and recording fees,
expenses and taxes, stamp or documentary taxes, search fees, title insurance
premiums and reasonable fees, expenses and disbursements of counsel to each
Agent and of counsel providing any opinions that any Agent or Requisite Lenders
may request in respect of the Collateral or the Liens created pursuant to the
Collateral Documents, and all costs and expenses of releasing any Liens; (e)
all the out-of-pocket actual costs and reasonable fees, expenses and
disbursements of any auditors, accountants, consultants or appraisers; (f) all
the out-of-pocket actual costs and reasonable expenses (including the
reasonable fees, expenses and disbursements of any appraisers, consultants,
advisors and agents employed or retained by Collateral Agent and its counsel)
in connection with the custody or preservation of any of the Collateral; (g)
all other out-of-pocket actual and reasonable costs and expenses incurred by
each Agent in connection with the syndication of the Loans and Commitments and
the negotiation, preparation and execution of the Credit Documents and any
consents, amendments, waivers or other modifications thereto and the
transactions contemplated thereby; and (h) after the occurrence of a Default or
an Event of Default, (i) all costs and expenses of inspections and visits by
any Agent or Lender pursuant to Section 5.6 and (ii) all out-of-pocket costs
and expenses, including reasonable attorneys' fees and costs of settlement,
incurred by any Agent and Lenders in enforcing any Obligations of or in
collecting any payments due from any Credit Party hereunder or under the other
Credit Documents by reason of such Default or Event of Default (including in
connection with the sale of, collection from, or other realization upon any of
the Collateral or the enforcement of the Guaranty) or in connection with any
refinancing or restructuring of the credit arrangements provided hereunder in
the nature of a "work-out" or pursuant to any insolvency or bankruptcy cases or
proceedings.
10.3. INDEMNITY
.
(a) In addition to the payment of expenses pursuant to Section
10.2, whether or not the transactions contemplated hereby shall be consummated,
each Credit Party agrees to defend (subject to Indemnitees' selection of
counsel), indemnify, pay and hold harmless, each Agent and Lender and the
officers, partners, directors, trustees, employees, agents and Affiliates of
each Agent and each Lender (each, an "INDEMNITEE"), from and against any and
all Indemnified Liabilities; provided, no Credit Party shall have any
obligation to any Indemnitee hereunder with respect to any Indemnified
Liabilities to the extent such Indemnified Liabilities arise from the gross
negligence or willful misconduct of that Indemnitee, and provided, further, no
Credit Party shall have any obligation to Issuing Bank in the event of the
wrongful dishonor by Issuing Bank of a proper demand for payment made under any
Letter of Credit issued by it (it being understood that no dishonor as a result
of a Governmental Act shall constitute a wrongful dishonor). To the extent
that the undertakings to defend, indemnify, pay and hold harmless set forth in
this Section 10.3 may be unenforceable in whole or in part because they are
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violative of any law or public policy, the applicable Credit Party shall
contribute the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them. To the extent permitted by applicable
law, no Credit Party shall assert, and each hereby waives, any claim against
any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, any Credit Document or
any agreement or instrument or transaction contemplated hereby.
(b) To the extent permitted by applicable law, neither Holdings
nor any of its Subsidiaries or Affiliates shall assert, and hereby waives, any
claim against any Lender or any of their Affiliates, directors, employees,
attorneys or agents, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
(whether or not the claim therefor is based on contract, tort or duty imposed
by any applicable legal requirement) arising out of, in connection with,
arising out of, as a result of, or in any way related to, this Agreement or any
Credit Document or any agreement or instrument contemplated hereby or thereby,
the transactions contemplated hereby or thereby, any Loan or the use of the
proceeds thereof or any act or omission or event occurring in connection
therewith, and Holdings and Company hereby waives, releases and agrees not to
xxx upon any such claim or any such damages, whether or not accrued and whether
or not known or suspected to exist in its favor.
10.4. SET-OFF
. In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default each Lender is hereby authorized by each
Credit Party at any time or from time to time subject to the consent of
Administrative Agent (such consent not to be unreasonably withheld or delayed),
without notice to any Credit Party or to any other Person (other than
Administrative Agent), any such notice being hereby expressly waived, to set
off and to appropriate and to apply any and all deposits (general or special,
including Indebtedness evidenced by certificates of deposit, whether matured or
unmatured, but not including trust accounts) and any other Indebtedness at any
time held or owing by such Lender to or for the credit or the account of any
Credit Party against and on account of the obligations and liabilities of any
Credit Party to such Lender hereunder, under the Letters of Credit and
participations therein and under the other Credit Documents, including all
claims of any nature or description arising out of or connected herewith or
therewith, irrespective of whether or not (a) such Lender shall have made any
demand hereunder or (b) the principal of or the interest on the Loans or any
amounts in respect of the Letters of Credit or any other amounts due hereunder
shall have become due and payable pursuant to Section 2 and although such
obligations and liabilities, or any of them, may be contingent or unmatured.
Each Credit Party hereby further grants to Administrative Agent and each Lender
a security interest in all Deposit Accounts maintained with Administrative
Agent or such Lender as security for the Obligations.
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10.5. AMENDMENTS AND WAIVERS
.
(a) Requisite Lenders' Consent. Subject to Section 10.5(b) and
10.5(c), no amendment, modification, termination or waiver of any provision of
the Credit Documents, or consent to any departure by any Credit Party
therefrom, shall in any event be effective without the written concurrence of
the Requisite Lenders.
(b) Affected Lenders' Consent. Without the written consent of
each Lender (other than a Defaulting Lender) that would be affected thereby,
no amendment, modification, termination, or consent shall be effective if the
effect thereof would:
(i) extend the scheduled final maturity of any Loan or
Note;
(ii) waive, reduce or postpone any scheduled repayment
(but not prepayment);
(iii) extend the stated expiration date of any Letter of
Credit beyond the Revolving Commitment Termination Date;
(iv) reduce the rate of interest on any Loan (other than
any waiver of any increase in the interest rate applicable to any Loan
pursuant to Section 2.11) or any fee payable hereunder;
(v) extend the time for payment of any such interest or
fees;
(vi) reduce the principal amount of any Loan or any
reimbursement obligation in respect of any Letter of Credit;
(vii) amend, modify, terminate or waive any provision of
this Section 10.5(b), Section 10.5(c) or any other provisions of this
Agreement specifying the percentage of Lenders needed to take action
under this Agreement (including but not limited to Section 10.6(a)
hereof);
(viii)amend the definition of "REQUISITE LENDERS" or "PRO
RATA SHARE"; provided, with the consent of Requisite Lenders, additional
extensions of credit pursuant hereto may be included in the
determination of "REQUISITE LENDERS" or "PRO RATA SHARE" on
substantially the same basis as the Term Loan Commitments, the Term
Loans, the Revolving Commitments and the Revolving Loans are included on
the Second Amendment Effective Date;
(ix) release all or substantially all of the Collateral or
all or substantially all of the Guarantors from the Guaranty except as
expressly provided in the Credit Documents;
(x) consent to the assignment or transfer by any Credit
Party of any of its rights and obligations under any Credit Document; or
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(xi) amend Section 2.15(b)(ii) of this Agreement in a
manner that would change the pro rata sharing of Commitment reductions
set forth therein.
(c) Other Consents. No amendment, modification, termination or
waiver of any provision of the Credit Documents, or consent to any departure by
any Credit Party therefrom, shall:
(i) increase any Revolving Commitment of any Lender over
the amount thereof then in effect without the consent of such Lender;
provided, no amendment, modification or waiver of any condition
precedent, covenant, Default or Event of Default shall constitute an
increase in any Revolving Commitment of any Lender;
(ii) amend, modify, terminate or waive any provision
hereof relating to the Swing Line Sublimit or the Swing Line Loans
without the consent of Swing Line Lender;
(iii) amend the definition of "REQUISITE CLASS LENDERS"
without the consent of Requisite Class Lenders of each Class; provided,
with the consent of the Requisite Lenders, additional extensions of
credit pursuant hereto may be included in the determination of such
"REQUISITE CLASS LENDERS" on substantially the same basis as the Term
Loan Commitments, the Term Loans, the Revolving Commitments and the
Revolving Loans are included on the Second Amendment Effective Date;
(iv) alter the required application of any repayments or
prepayments as between Classes pursuant to Section 2.16 without the
consent of Requisite Class Lenders of each Class which is being
allocated a lesser repayment or prepayment as a result thereof;
provided, Requisite Lenders may waive, in whole or in part, any
prepayment so long as the application, as between Classes, of any
portion of such prepayment which is still required to be made is not
altered;
(v) amend, modify, terminate or waive any obligation of
Lenders relating to the issuance of or purchase of participations in
Letters of Credit without the written consent of Administrative Agent
and of each Issuing Bank; or
(vi) amend, modify, terminate or waive any provision of
Section 9 as the same applies to any Agent, or any other provision
hereof as the same applies to the rights or obligations of any Agent, in
each case without the consent of such Agent.
(d) Execution of Amendments, etc. Administrative Agent may,
but shall have no obligation to, with the concurrence of any Lender, execute
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amendments, modifications, waivers or consents on behalf of such Lender. Any
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which it was given. No notice to or demand on any Credit
Party in any case shall entitle any Credit Party to any other or further notice
or demand in similar or other circumstances. Any amendment, modification,
termination, waiver or consent effected in accordance with this Section 10.5
shall be binding upon each Lender at the time outstanding, each future Lender
and, if signed by a Credit Party, on such Credit Party.
10.6. SUCCESSORS AND ASSIGNS; PARTICIPATIONS
.
(a) Generally. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of the parties hereto and the successors and assigns of Lenders.
No Credit Party's rights or obligations hereunder nor any interest therein may
be assigned or delegated by any Credit Party without the prior written consent
of all Lenders. 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 and, to the extent expressly
contemplated hereby, Affiliates of each of the Agents and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Register. Company, Administrative Agent and Lenders shall
deem and treat the Persons listed as Lenders in the Register as the holders and
owners of the corresponding Commitments and Loans listed therein for all
purposes hereof, and no assignment or transfer of any such Commitment or Loan
shall be effective, in each case, unless and until an Assignment Agreement
effecting the assignment or transfer thereof shall have been delivered to and
accepted by Administrative Agent and recorded in the Register as provided in
Section 10.6(d), provided that, in the case of an assignment between a Lender
and an Affiliate of such Lender, such assignment shall be effective between
such Lender and its Affiliate immediately without registration thereof in the
Register, but shall not be effective between Borrower, any Agent or any Lender
until so registered. Prior to such recordation, all amounts owed with respect
to the applicable Commitment or Loan shall be owed to the Lender listed in the
Register as the owner thereof, and any request, authority or consent of any
Person who, at the time of making such request or giving such authority or
consent, is listed in the Register as a Lender shall be conclusive and binding
on any subsequent holder, assignee or transferee of the corresponding
Commitments or Loans.
(c) Right to Assign. Each Lender shall have the right at any
time to sell, assign or transfer all or a portion of its rights and obligations
under this Agreement, including, without limitation, all or a portion of its
Commitment or Loans owing to it or other Obligation to any Eligible Assignee
upon the giving of notice to Company and Administrative Agent, provided
(i) each such assignment shall be of a uniform, and not
varying, percentage of all rights and obligations under and in respect
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of any Loan and any related Commitments and shall not, without Company's
consent, result in payment to such assignee under Sections 2.20(c), 2.21
and 2.22 that would not have been made to the assigning Lender;
(ii) any assignment to a Person that does not meet the
requirements of clause (i) of the definition of the term "Eligible
Assignee" shall require the prior written consent of Administrative
Agent and, so long as no Event of Default has occurred and is
continuing, Company, in each case not to be unreasonably withheld or
delayed; and
(iii) each assignment shall require the payment of an
assignment fee, payable by a party other than Company, of $2,000 to
Administrative Agent; provided however that such fee shall not apply to
the primary syndication of any of the Loans.
(d) Mechanics. The assigning Lender and the assignee thereof
shall execute and deliver to Administrative Agent an Assignment Agreement,
together with such forms, certificates or other evidence, if any, with respect
to United States federal income tax withholding matters as the assignee under
such Assignment Agreement may be required to deliver to Administrative Agent
pursuant to Section 2.21(c). Any assignment to a Person that does not meet the
requirements of clause (i) of the definition of the term "Eligible Assignee,"
shall be in an aggregate amount of not less than $1,000,000 (or such lesser
amount as may be agreed by Company and Administrative Agent or as shall
constitute the aggregate amount of a Class of Loans or Commitments of the
assigning Lender).
(e) Notice of Assignment. Upon its receipt of a duly executed
and completed Assignment Agreement, (and any forms, certificates or other
evidence required by this Agreement in connection therewith), Administrative
Agent shall record the information contained in such Assignment Agreement in
the Register, shall give prompt notice thereof to Company and shall maintain a
copy of such Assignment Agreement.
(f) Representations and Warranties of Assignee. Each Lender,
upon execution and delivery hereof or upon executing and delivering an
Assignment Agreement, as the case may be, represents and warrants as of its
Lender Effective Date that (i) it is an Eligible Assignee; (ii) it has
experience and expertise in the making of or investing in commitments or loans
such as the applicable Commitments or Loans, as the case may be; and (iii) it
will make or invest in, as the case may be, its Commitments or Loans for its
own account in the ordinary course of its business and without a view to
distribution of such Commitments or Loans within the meaning of the Securities
Act or the Exchange Act or other federal securities laws (it being understood
that, subject to the provisions of this Section 10.6, the disposition of such
Commitments or Loans or any interests therein shall at all times remain within
its exclusive control).
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(g) Effect of Assignment. Subject to the terms and conditions
of this Section 10.6, as of the "effective date" specified in the applicable
Assignment Agreement: (i) the assignee thereunder shall have the rights and
obligations of a "Lender" hereunder to the extent such rights and obligations
hereunder have been assigned to it pursuant to such Assignment Agreement and
shall thereafter be a party hereto and a "Lender" for all purposes hereof;
(ii) the assigning Lender thereunder shall, to the extent that rights and
obligations hereunder have been assigned thereby pursuant to such Assignment
Agreement, relinquish its rights (other than any rights which survive the
termination hereof under Section 10.8) and be released from its obligations
hereunder (and, in the case of an Assignment Agreement covering all or the
remaining portion of an assigning Lender's rights and obligations hereunder,
such Lender shall cease to be a party hereto); provided, anything contained in
any of the Credit Documents to the contrary notwithstanding, (A) Issuing Bank
shall continue to have all rights and obligations thereof with respect to such
Letters of Credit until the cancellation or expiration of such Letters of
Credit and the reimbursement of any amounts drawn thereunder and (B) such
assigning Lender shall continue to be entitled to the benefit of all
indemnities hereunder as specified herein with respect to matters arising out
of the prior involvement of such assigning Lender as a Lender hereunder;
(iii) the Commitments shall be modified to reflect the Commitment of such
assignee and any Revolving Commitment of such assigning Lender, if any; and
(iv) if any such assignment occurs after the issuance of any Note hereunder,
the assigning Lender shall, upon the effectiveness of such assignment or as
promptly thereafter as practicable, surrender its applicable Notes to
Administrative Agent for cancellation, and thereupon Company shall issue and
deliver new Notes, if so requested by the assignee and/or assigning Lender, to
such assignee and/or to such assigning Lender, with appropriate insertions, to
reflect the new Revolving Commitments and/or outstanding Loans of the assignee
and/or the assigning Lender.
(h) Participations. Each Lender shall have the right at any
time to sell, without notice to, or consent of the Company and Administrative
Agent one or more participations to any Person (other than Holdings, any of its
Subsidiaries or any of its Affiliates) in all or any part of its Commitments,
Loans or in any other Obligation. The holder of any such participation, other
than an Affiliate of the Lender granting such participation, shall not be
entitled to require such Lender to take or omit to take any action hereunder
except with respect to any amendment, modification or waiver that would
(i) extend the final scheduled maturity of any Loan, Note or Letter of Credit
(unless such Letter of Credit is not extended beyond the Revolving Commitment
Termination Date) in which such participant is participating, or reduce the
rate or extend the time of payment of interest or fees thereon (except in
connection with a waiver of applicability of any post-default increase in
interest rates) or reduce the principal amount thereof, or increase the amount
of the participant's participation over the amount thereof then in effect (it
being understood that a waiver of any Default or Event of Default or of a
mandatory reduction in the Commitment shall not constitute a change in the
terms of such participation, and that an increase in any Commitment or Loan
shall be permitted without the consent of any participant if the participant's
participation is not increased as a result thereof), (ii) consent to the
assignment or transfer by any Credit Party of any of its rights and obligations
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under this Agreement or (iii) release all or substantially all of the
Collateral under the Collateral Documents (except as expressly provided in the
Credit Documents) supporting the Loans hereunder in which such participant is
participating. The Company agrees that each participant shall be entitled to
the benefits of Sections 2.20(c), 2.21 and 2.22 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to paragraph
(c) of this Section; provided, (i) a participant shall not be entitled to
receive any greater payment under Section 2.21 or 2.22 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 Company's prior written consent and (ii) a participant
that would be a Non-US Lender if it were a Lender or would be a US Lender that
is not willing or able to execute a valid Form W-9 shall not be entitled to the
benefits of Section 2.22 unless Company is notified of the participation sold
to such participant and such participant agrees, for the benefit of Company, to
comply with Section 2.22 as though it were a Lender. To the extent permitted
by law, each participant also shall be entitled to the benefits of Section 10.4
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.18 as though it were a Lender.
(i) Certain Other Assignments. In addition to any other
assignment permitted pursuant to this Section 10.6, (i) any Lender may
assign and/or pledge all or any portion of its Loans, the other
Obligations owed by or to such Lender, and its Notes, if any, to secure
obligations of such Lender including, without limitation, any Federal
Reserve Bank as collateral security pursuant to Regulation A of the
Board of Governors of the Federal Reserve System and any operating
circular issued by such Federal Reserve Bank; provided, no Lender, as
between Company and such Lender, shall be relieved of any of its
obligations hereunder as a result of any such assignment and pledge, and
provided, further, in no event shall the applicable Federal Reserve Bank
or trustee be considered to be a "Lender" or be entitled to require the
assigning Lender to take or omit to take any action hereunder.
10.7. INDEPENDENCE OF COVENANTS
. All covenants hereunder shall be given independent effect so
that if a particular action or condition is not permitted by any of such
covenants, the fact that it would be permitted by an exception to, or would
otherwise be within the limitations of, another covenant shall not avoid the
occurrence of a Default or an Event of Default if such action is taken or
condition exists.
10.8. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS
. All representations, warranties and agreements made herein
shall survive the execution and delivery hereof and the making of any Credit
Extension. Notwithstanding anything herein or implied by law to the contrary,
the agreements of each Credit Party set forth in Sections 2.20(c), 2.21, 2.22,
10.2, 10.3 and 10.4 and the agreements of Lenders set forth in Sections 2.19
and shall survive the payment of the Loans, the cancellation or expiration of
the Letters of Credit and the reimbursement of any amounts drawn thereunder,
and the termination hereof.
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10.9. NO WAIVER; REMEDIES CUMULATIVE
. No failure or delay on the part of any Agent or any Lender in
the exercise of any power, right or privilege hereunder or under any other
Credit Document shall impair such power, right or privilege or be construed to
be a waiver of any default or acquiescence therein, nor shall any single or
partial exercise of any such power, right or privilege preclude other or
further exercise thereof or of any other power, right or privilege. The
rights, powers and remedies given to each Agent and each Lender hereby are
cumulative and shall be in addition to and independent of all rights, powers
and remedies existing by virtue of any statute or rule of law or in any of the
other Credit Documents or any of the Financial Hedge Agreements. Any
forbearance or failure to exercise, and any delay in exercising, any right,
power or remedy hereunder shall not impair any such right, power or remedy or
be construed to be a waiver thereof, nor shall it preclude the further exercise
of any such right, power or remedy.
10.10.MARSHALLING; PAYMENTS SET ASIDE
. Neither any Agent nor any Lender shall be under any obligation
to marshal any assets in favor of any Credit Party or any other Person or
against or in payment of any or all of the Obligations. To the extent that any
Credit Party makes a payment or payments to Administrative Agent or Lenders (or
to Administrative Agent, on behalf of Lenders), or Administrative Agent or
Lenders enforce any security interests or exercise their rights of setoff, and
such payment or payments or the proceeds of such enforcement or setoff or any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, any other state or federal law,
common law or any equitable cause, then, to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all Liens,
rights and remedies therefor or related thereto, shall be revived and continued
in full force and effect as if such payment or payments had not been made or
such enforcement or setoff had not occurred.
10.11.SEVERABILITY
. In case any provision in or obligation hereunder or any Note
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
10.12.OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS
. The obligations of Lenders hereunder are several and no Lender
shall be responsible for the obligations or Commitment of any other Lender
hereunder. Nothing contained herein or in any other Credit Document, and no
action taken by Lenders pursuant hereto or thereto, shall be deemed to
constitute Lenders as a partnership, an association, a joint venture or any
other kind of entity. The amounts payable at any time hereunder to each Lender
shall be a separate and independent debt, and each Lender shall be entitled to
protect and enforce its rights arising out hereof and it shall not be necessary
for any other Lender to be joined as an additional party in any proceeding for
such purpose.
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10.13.HEADINGS
. Section headings herein are included herein for convenience of
reference only and shall not constitute a part hereof for any other purpose or
be given any substantive effect.
10.14.APPLICABLE LAW
. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT
OF LAWS PRINCIPLES THEREOF.
10.15.CONSENT TO JURISDICTION
. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY HERETO
ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENT, OR ANY OF THE
OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN XXX XXXXX, XXXXXX XXX XXXX XX XXX XXXX. BY EXECUTING AND
DELIVERING THIS AGREEMENT, EACH PARTY HERETO, FOR ITSELF AND IN CONNECTION WITH
ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (B) WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS ADDRESS
PROVIDED IN ACCORDANCE WITH SECTION 10.1;(D) AGREES THAT SERVICE AS PROVIDED IN
CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE
APPLICABLE CREDIT PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE
CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES
AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS
OF ANY OTHER JURISDICTION.
10.16.WAIVER OF JURY TRIAL
. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING HEREUNDER OR UNDER ANY OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/COMPANY RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE
FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS
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WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT
EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND
THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS.
EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS
WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS
JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING
(OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION
10.16 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR
ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
10.17.CONFIDENTIALITY
. Each Lender shall hold all non-public information regarding
Holdings and Company and their business identified as such by Company and
obtained by such Lender pursuant to the requirements hereof in accordance with
such Lender's customary procedures for handling confidential information of
such nature, it being understood and agreed by Holdings and Company that, in
any event, a Lender may make (i) disclosures of such information to Affiliates
of such Lender and to their agents and advisors (and to other persons
authorized by a Lender or Agent to organize, present or disseminate such
information in connection with disclosures otherwise made in accordance with
this Section 10.17), (ii) disclosures of such information reasonably required
by any bona fide or potential assignee, transferee or participant in
connection with the contemplated assignment, transfer or participation by such
Lender of any Loans or any participations therein or by any direct or
indirect contractual counterparties (or the professional advisors thereto)
in Financial Hedge Agreements (provided, such assignees, transferees,
participants, counterparties and advisors are advised of and agree to be
bound by the provisions of this Section 10.17), (iii) disclosure to any
rating agency when required by it, provided, prior to any disclosure,
such rating agency shall undertake in writing to preserve the
confidentiality of any confidential information relating to the Credit
Parties received by it from any of the Agents or any Lender, and (iv)
required or requested by any governmental agency or representative
thereof or by the NAIC or pursuant to legal or judicial process; provided,
unless specifically prohibited by applicable law or court order, each
Lender shall make reasonable efforts to notify Company of any request by any
governmental agency or representative thereof (other than any such request in
connection with any examination of the financial condition or other routine
examination of such Lender by such governmental agency) for disclosure of any
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such non-public information prior to disclosure of such information.
Notwithstanding anything to the contrary set forth herein, each party (and each
of their respective employees, representatives or other agents) may disclose to
any and all persons, without limitations of any kind, the tax treatment and tax
structure of the transactions contemplated by this Agreement and all materials
of any kind (including without limitation, opinions and other tax analyses)
that are provided to any such party relating to such tax treatment and tax
structure. However, any information relating to the tax treatment or tax
structure shall remain subject to the confidentiality provisions hereof (and
the foregoing sentence shall not apply) to the extent reasonably necessary to
enable the parties hereto, their respective Affiliates, and their and their
respective Affiliates' directors and employees to comply with applicable
securities laws. For this purpose, "tax structure" means any facts relevant to
the federal income tax treatment of the transactions contemplated by this
Agreement but does not include information relating to the identity of any of
the parties hereto or any of their respective Affiliates.
10.18.USURY SAVINGS CLAUSE
. Notwithstanding any other provision herein, the aggregate
interest rate charged with respect to any of the Obligations, including all
charges or fees in connection therewith deemed in the nature of interest under
applicable law shall not exceed the Highest Lawful Rate. If the rate of
interest (determined without regard to the preceding sentence) under this
Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount
of the Loans made hereunder shall bear interest at the Highest Lawful Rate
until the total amount of interest due hereunder equals the amount of interest
which would have been due hereunder if the stated rates of interest set forth
in this Agreement had at all times been in effect. In addition, if when the
Loans made hereunder are repaid in full the total interest due hereunder
(taking into account the increase provided for above) is less than the total
amount of interest which would have been due hereunder if the stated rates of
interest set forth in this Agreement had at all times been in effect, then to
the extent permitted by law, Company shall pay to Administrative Agent an
amount equal to the difference between the amount of interest paid and the
amount of interest which would have been paid if the Highest Lawful Rate had at
all times been in effect. Notwithstanding the foregoing, it is the intention
of Lenders and Company to conform strictly to any applicable usury laws.
Accordingly, if any Lender contracts for, charges, or receives any
consideration which constitutes interest in excess of the Highest Lawful Rate,
then any such excess shall be cancelled automatically and, if previously paid,
shall at such Lender's option be applied to the outstanding amount of the Loans
made hereunder or be refunded to Company.
-153-
LA\1431665.15
APPENDIX A-1
TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
2004 EFFECTIVE DATE TERM LOAN COMMITMENTS
JPMorgan Chase Bank, N.A. $162,764,542.59
Xxxxxxx Xxxxx Credit Partners L.P. $91,474,863.54
Natexis Banques Populaires $6,609,292.61
PPM Spyglass Funding Trust $6,301,885.53
Canadian Imperial Bank of Commerce $5,636,568.36
Xxxxxxx Xxxxx Capital $4,832,553.98
Loan Funding IV LLC $4,725,109.37
PPM Shadow Creek Funding LLC $4,358,489.66
Emerald Orchard Limited $3,912,272.73
ING Prime Rate Trust $3,834,944.32
Xxxxxx V Leveraged Loan CDO 2003 $3,776,738.64
CSAM Funding I $3,752,835.23
The Royal Bank of Scotland $3,000,000.00
Atrium II $2,956,136.36
ING Senior Income Fund $2,888,369.32
First Dominion Funding II $2,868,409.09
Xxxxxxx Bank, National Association $2,832,553.98
Winged Foot Funding Trust $2,832,553.98
Xxxxxx Leveraged Loan CDO 2002-II $2,832,553.98
Xxxxxx III-Leveraged Loan CDO 2002 $2,832,553.98
Xxxxx Point CLO, Ltd $2,434,204.55
Race Point II CLO, Limited $2,434,204.55
Centurion CDO VII, Ltd. $2,346,095.46
Columbia Floating Rate Fund LLC $2,000,000.00
Four Corners Senior Floating Rate Income Fund $1,912,272.73
Mountain Capital CLO I Ltd $1,912,272.73
Venture III CDO $1,912,272.73
CSAM Funding II $1,912,272.73
Carlyle High Yield Partners IV, Ltd $1,890,759.57
Carlyle Loan Opportunity Fund $1,890,759.56
Harbour Town Funding, LLC $1,888,369.32
Race Point CLO, Limited $1,888,369.32
Castle Hill I - Ingots Ltd $1,888,369.32
Great Point CLO 1999 - 1 Ltd $1,888,369.32
Castle Hill III CLO, Ltd $1,883,636.57
Toronto Dominion (New York) $1,874,099.51
Jupiter Loan Funding LLC $1,416,276.99
Highland Loan Funding V Ltd $956,136.36
ELF Funding Trust I $956,136.36
Appendix A-1-1
Gleneagles Trading LLC $956,136.36
Seminole Funding LLC $956,136.36
Castle Hill II - Ignots, Ltd $946,551.04
Long Lane Master Trust IV $944,184.66
Sequils - Pilgrim I, Ltd $941,794.32
Oasis Collateralized High Income Fund Porfolios-1, Ltd.$472,092.33
Appendix A-1-2
LA\1431665.15
APPENDIX A-2
TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
NEW TERM LOAN COMMITMENTS
Xxxxxxx Xxxxx Credit Partners L.P.$465,051,437.50
Appendix A-2-1
LA\1431665.15
APPENDIX A-3
TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
REVOLVING COMMITMENTS
Xxxxxxx Sachs Credit Partners L.P. $23,500,000
JPMorgan Chase Bank, N.A. $11,000,000
Deutsche Bank Trust Company Americas $10,000,000
General Electric Capital Corporation $25,000,000
Bank of America, N.A. $12,000,000
Xxxxxxx Bank, National Association $5,000,000
The Royal Bank of Scotland plc $22,000,000
Xxxxxxx Xxxxx Capital $8,000,000
Fifth Third Bank $10,000,000
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
"Rabobank International" New York Branch $17,500,000
CIT Lending Services Corporation $6,000,000
Appendix A-3-1
LA\1431665.15
APPENDIX B
TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
NOTICE ADDRESSES
XXXXX PLASTICS CORPORATION
000 Xxxxxx Xx.
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx
Telecopier: (000) 000-0000
BPC HOLDING CORPORATION
000 Xxxxxx Xx.
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx
Telecopier: (000) 000-0000
Appendix B-1
LA\1431665.15
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
as a Co-Lead Arranger, Co-Syndication Agent, Joint Bookrunner and a Lender
Xxxxxxx Sachs Credit Partners L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxxx
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxx Sachs Credit Partners L.P.
00 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopier: (000) 000-0000
JPMORGAN CHASE BANK, N.A.
as a Co-Lead Arranger, Co-Syndication Agent, Joint Bookrunner and a Lender
XX Xxxxxx Xxxxx Bank
000 Xxxx Xxxxxx, 0xx Xx.
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telecopier: (000) 000-0000
Appendix B-2
LA\1431665.15
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Administrative Agent, Collateral Agent, an Issuing Bank, Swing Line Lender and a Lender
With respect to credit issues, in its capacity as Administrative Agent, in its capacity as Collateral Agent
and for portfolio management related issues:
Deutsche Bank Trust Company Americas
000 X. Xxxxxxxxx Xxxxx
XX CH105-2900
Xxxxxxx, XX 00000
Attention: Xxxxx X. Stahauk
Telecopier: (000) 000-0000
and with respect to notices for borrowing and operational activities:
Deutsche Bank Trust Company Americas
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: Office of the Administrative Agent
Telecopier: (000) 000-0000
FLEET NATIONAL BANK
as an Issuing Bank
Bank of America
Mail Code: PA6-580-02-30
0 Xxxxx Xxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Telecopier: (000) 000-0000
Appendix B-3
LA\1431665.15
