EXHIBIT 10.3
THE INDEBTEDNESS EVIDENCED HEREBY IS SUBORDINATE AND JUNIOR IN
RIGHT OF PAYMENT IN THE MANNER AND TO THE EXTENT SET FORTH
IN AN INTERCREDITOR AGREEMENT DATED AS OF NOVEMBER 3, 2004
AMONG TAL INTERNATIONAL GROUP, INC., CERTAIN OF ITS SUBSIDIARIES,
FORTIS BANK (NEDERLAND) N.V., AS ADMINISTRATIVE AGENT FOR CERTAIN
LENDERS, AND TRANSAMERICA ACCOUNTS HOLDING CORPORATION,
AS AGENT FOR CERTAIN LENDERS
-------------------------------------------------------------------------------
CREDIT AGREEMENT
dated as of
November 3, 2004
among
TAL INTERNATIONAL GROUP, INC.,
as Borrower,
THE LENDERS named herein
and
TRANSAMERICA ACCOUNTS HOLDING CORPORATION,
as Agent
-------------------------------------------------------------------------------
This Credit Agreement is dated as of November 3, 2004, and entered into
by and among TAL International Group, Inc., a Delaware corporation (the
"COMPANY"), the Lenders named on the signature pages hereto (the "Lenders"), and
Transamerica Accounts Holding Corporation, as Agent for the Lenders (in such
capacity, the "Agent").
RECITALS
WHEREAS, the Company desires that the Lenders extend a senior credit
facility to the Company in connection with the Transactions (as defined herein);
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereby agree as follows:
SECTION 1 DEFINITIONS
1.1 CERTAIN DEFINED TERMS. The following terms used in this Agreement
shall have the following meanings:
"ACCELERATION NOTICE" shall have the meaning ascribed to such term in
Section 7.
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person or any of its
Subsidiaries (a) existing at the time such Person becomes a Restricted
Subsidiary or at the time it merges or consolidates with or into the Company or
any of its Restricted Subsidiaries or assumed in connection with the acquisition
of assets from such Person, (b) not incurred in connection with, or in
anticipation or contemplation of, such Person becoming a Restricted Subsidiary
or such acquisition, merger or consolidation and (c) that is without recourse to
the Company or any of its Subsidiaries or to any of their respective properties
or assets other than the Person or the assets to which such Indebtedness related
prior to the time such Person became a Restricted Subsidiary or the time of such
acquisition, merger or consolidation.
"ACQUISITION" means the acquisition by the Company, or through a
wholly-owned Subsidiary of the Company, of all of the Capital Stock of
Transamerica Leasing Inc. and Trans Ocean Ltd., in each case pursuant to the
terms of the Acquisition Agreements.
"ACQUISITION AGREEMENTS" means the Stock Purchase Agreement and each
other Ancillary Agreement referred to therein.
"AFFILIATE" means, with respect to any specified Person, any other
Person who directly or indirectly through one or more intermediaries controls,
or is controlled by, or is under common control with, such specified Person. The
term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise;
provided, that Beneficial Ownership of 10% or more of the Voting Stock of any
Person shall be deemed to be control of such Person. The terms "controlling" and
"controlled" have meanings correlative of the foregoing.
"AGREEMENT" means this Credit Agreement dated as of November 3, 2004,
as it may be amended, supplemented or otherwise modified from time to time in
accordance with the terms hereof.
"APPLICABLE RATE" means (a) for the Initial Quarterly Period, 8.75% per
annum and (b) for each subsequent Quarterly Period, the per annum Applicable
Rate in effect for the immediately preceding Quarterly Period plus 0.25% per
annum; provided, that, in no event, other than as provided in Section 2.3C and
the payment of Liquidated Damages, will the interest rate on the Interim Loan
exceed 11.5% per annum.
"ASSET SALE" means any direct or indirect sale, issuance, conveyance,
lease (other than leases entered into in the ordinary course of business),
assignment or other transfer (collectively, "transfer") of:
(1) any Capital Stock of any Restricted Subsidiary (other than
directors' qualifying shares or shares required by applicable law to be held by
a Person other than the Company or a Restricted Subsidiary); or
(2) any other property or assets of the Company or any
Restricted Subsidiary other than in the ordinary course of business;
provided, that Asset Sales shall not include:
(a) a transaction or series of related transactions
for which the Company or its Restricted Subsidiaries receive aggregate
consideration of less than $1.0 million;
(b) the transfer of all or substantially all of the
assets of the Company permitted under Section 6.5;
(c) any Restricted Payment permitted under Section
6.3 or Permitted Investment;
(d) the sale of Cash Equivalents;
(e) the creation of a Permitted Lien (but not the
sale or other disposition of the property subject to such Lien);
(f) the good faith surrender or waiver of contract
rights, tort claims or statutory rights;
(g) sales or grants of licenses or sublicenses to use
the patents, copyright and other intellectual property of the Company or any
of the Restricted Subsidiaries to the extent such license does not interfere
with the business of the Company or any Restricted Subsidiary;
(h) the sale or other disposition of worn out,
obsolete or surplus equipment (other than Containers);
(i) a transfer to the Company or to a Wholly-Owned
Restricted Subsidiary; and
(j) a transfer, lease, assignment or other transfer
by a Qualified Container Subsidiary of Qualifying Container Assets and related
assets pursuant to a Qualified Containers Transaction.
"ASSET SALE PREPAYMENT" has the meaning ascribed to it in Section
2.4A(ii)(a).
"BANKRUPTCY LAW" means the Bankruptcy Reform Act of 1978, as amended,
and codified as 11 U.S.C. ss.ss.101 et seq.
"BANKRUPTCY ORDER" means any court order made in a proceeding pursuant
to or within the meaning of any Bankruptcy Law, containing an adjudication of
bankruptcy or insolvency, or providing for liquidation, winding up, dissolution
or reorganization, or appointing a custodian of a debtor or of all or any
substantial part of a debtor's property, or providing for the staying,
arrangement, adjustment or composition of indebtedness or other relief of a
debtor.
"BENEFICIAL OWNER" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as that term is used in Section 13(d)(3)
of the Exchange Act), such "person" will be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms
"Beneficially Owns" and "Beneficially Owned" have meanings correlative to the
foregoing.
"BOARD OF DIRECTORS" means, as to any Person, the board of directors or
similar governing body of such Person or any duly authorized committee thereof.
"BOARD RESOLUTION" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Agent.
"BUSINESS" means the marine container leasing business and related
businesses.
"BUSINESS DAY" means any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of New York, New York or is a day on
which banking institutions therein located are authorized or required by law or
other governmental action to close.
"CAPITAL STOCK" means:
(1) with respect to any Person that is a corporation, any and
all shares, interests, participations or other equivalents (however designated
and whether or not voting) of corporate stock, including each class of Common
Stock and Preferred Stock of such Person;
(2) with respect to any Person that is not a corporation, any
and all partnership, membership or other equity interests of such Person; and
(3) any warrants, rights or options to purchase any of the
interests referred to in clause (1) or (2) above.
"CAPITALIZED LEASE OBLIGATION" means, as to any Person, the obligations
of such Person under a lease that are required to be classified and accounted
for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"CASH EQUIVALENTS" means:
(1) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof;
(2) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state or any
public instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either Standard & Poor's Ratings Group ("S&P")
or Xxxxx'x Investors Service, Inc. ("MOODY'S");
(3) commercial paper maturing no more than one year from the
date of creation thereof and, at the time of acquisition, having a rating of at
least A-1 from S&P or at least P-1 from Moody's;
(4) certificates of deposit or bankers' acceptances maturing
within one year from the date of acquisition thereof issued by any bank
organized under the laws of the United States of America or any state thereof or
the District of Columbia or any U.S. branch of a foreign bank having at the date
of acquisition thereof combined net capital and surplus of not less than $250.0
million;
(5) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clause (1) above
entered into with any bank meeting the qualifications specified in clause (4)
above; and
(6) investments in money market funds which invest
substantially all their assets in securities of the types described in clauses
(1) through (5) above.
"CHANGE OF CONTROL" means the occurrence of one or more of the
following events:
(1) any direct or indirect sale, lease, transfer, conveyance
or other disposition (other than by way of merger or consolidation), in one
transaction or a series of related transactions, of all or substantially all of
the assets of the Company to any Person or group of related Persons for purposes
of Section 13(d) of the Exchange Act (a "GROUP"), other than (a) a transaction
in which the transferee is controlled by one or more Permitted Holders and (b)
the lease of Containers by the Company and its Subsidiaries in the ordinary
course of business;
(2) the Company consolidates with, or merges with or into, any
Person, or any Person consolidates with, or merges with or into, the Company,
other than (a) a transaction in which the surviving or transferee Person is a
Person that is controlled by the Permitted Holders or (b) any such transaction
where the Voting Stock of the Company outstanding immediately prior to such
transaction is converted into or exchanged for Voting Stock (other than
Disqualified Capital Stock) of the surviving or transferee Person constituting a
majority of the outstanding shares of such Voting Stock of such surviving or
transferee Person (immediately after giving effect to such issuance);
(3) the approval by the holders of Capital Stock of the
Company of any plan or proposal for the liquidation, winding up or dissolution
of the Company;
(4) prior to the first Public Equity Offering, the Permitted
Holders cease for any reason to be the Beneficial Owner, directly or indirectly,
in the aggregate of at least a majority of the total voting power of the Voting
Stock of the Company, whether by virtue of the issuance, sale or other
disposition of Capital Stock of the Company, a merger, consolidation or sale of
assets involving the Company, a Restricted Subsidiary, any voting trust or other
agreement;
(5) subsequent to the first Public Equity Offering, (a) any
Person or Group is or becomes the Beneficial Owner, directly or indirectly, in
the aggregate of more than 50% of the total voting power of the Voting Stock of
the Company, and (b) the Permitted Holders Beneficially Own, directly or
indirectly, in the aggregate a lesser percentage of the total voting power of
the Voting Stock of the Company than such other Person or Group; or
(6) during any consecutive two-year period, individuals who at
the beginning of such period constituted the Board of Directors (together with
any new directors whose election by such Board of Directors or whose nomination
for election by the stockholders of the Company was approved pursuant to a vote
of a majority of the directors then still in office who were either directors on
the Closing Date or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors then in office;
provided, that a sale, transfer, conveyance, disposition or lease by a Qualified
Container Subsidiary of Qualifying Container Assets and related assets pursuant
to a Qualified Containers Transaction shall not constitute a Change of Control.
"CHANGE OF CONTROL DATE" has the meaning ascribed to such term in
Section 2.4A(iv).
"CHANGE OF CONTROL OFFER" has the meaning ascribed to such term in
Section 2.4A(iv).
"CLOSING DATE" means the date of the making of the Interim Loan
hereunder.
"COMMISSION" means the Securities and Exchange Commission or any
successor agency.
"COMMODITY PRICE PROTECTION AGREEMENT" means, with respect to any
Person, any forward contract, commodity swap, commodity option or other similar
agreement or
arrangement entered into to protect such Person or its Subsidiaries against
fluctuations in commodity prices.
"COMMON STOCK" of any Person means any and all shares, interests or
other participations in, and other equivalents (however designated and whether
voting or non-voting) of such Person's common stock, whether outstanding on the
Closing Date or issued after the Closing Date, and includes, without limitation,
all series and classes of such common stock.
"COMPANY" has the meaning ascribed to such term in the introduction to
this Agreement.
"CONSOLIDATED EBITDA" means for any period, the sum (without
duplication) of:
(1) Consolidated Net Income of the Company; and
(2) to the extent Consolidated Net Income of the Company has
been reduced thereby:
(a) all income tax expense of the Company and its
consolidated Restricted Subsidiaries;
(b) Consolidated Interest Expense;
(c) depreciation and amortization expense of the
Company and its consolidated Restricted Subsidiaries (including any increased
expense or depreciation or amortization charges resulting from purchase
accounting adjustments or inventory write-ups with respect to acquisitions
and amortization charges or write-off of deferred financing costs and
debt issuance costs);
(d) all other non-cash charges of the Company and its
consolidated Restricted Subsidiaries (minus, with respect to any such non-cash
charge occurring after the Closing Date that was previously added in a prior
period to Consolidated Net Income to calculate Consolidated EBITDA and that
represents an accrual of or reserve for cash expenditures in any future period,
any payments made during such period);
(e) any non-capitalized costs incurred in connection
with financings, acquisitions or dispositions (including financing and
refinancing fees and any premium or penalty paid in connection with redeeming
or retiring Indebtedness prior to the stated maturity thereof pursuant to the
agreements governing such Indebtedness;
(f) (i) UBS equipment rental expense to the extent
that assets related to such expense have been repurchased by the Company or
its Restricted Subsidiaries and (ii) corporate governance costs allocated from
the Purchased Entities' prior parent, including costs associated with senior
management and other overhead, as described in Schedule A;
(g) expenses attributable to Incentive Arrangements;
and
(h) expenses attributable to the payment of the
Management Fee.
in each case, for such period and as determined on a consolidated basis in
accordance with GAAP.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" as of any date of
determination means the ratio of (a) the aggregate amount of Consolidated EBITDA
for the period of the most recent four consecutive fiscal quarters ending prior
to the date of such determination to (b) Consolidated Interest Expense for such
four fiscal quarters; provided, however, that:
(1) if the Company or any Restricted Subsidiary has incurred
any Indebtedness since the beginning of such period that remains outstanding or
if the transaction giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio is an incurrence of Indebtedness, or both, Consolidated
EBITDA and Consolidated Interest Expense for such period shall be calculated
after giving effect on a pro forma basis to such Indebtedness as if such
Indebtedness had been incurred on the first day of such period;
(2) if the Company or any Restricted Subsidiary has repaid,
repurchased, defeased or otherwise discharged any Indebtedness since the
beginning of such period or if any Indebtedness is to be repaid, repurchased,
defeased or otherwise discharged (in each case other than Indebtedness incurred
under any revolving credit facility unless such Indebtedness has been
permanently repaid and has not been replaced) on the date of the transaction
giving rise to the need to calculate the Consolidated Fixed Charge Coverage
Ratio, Consolidated EBITDA and Consolidated Interest Expense for such period
shall be calculated on a pro forma basis as if such discharge had occurred on
the first day of such period and as if the Company or such Restricted Subsidiary
has not earned the interest income actually earned during such period in respect
of cash or Cash Equivalents used to repay, repurchase, defease or otherwise
discharge such Indebtedness;
(3) if since the beginning of such period the Company or any
Restricted Subsidiary shall have made any Asset Sale, Consolidated EBITDA for
such period shall be reduced by an amount equal to Consolidated EBITDA (if
positive) directly attributable to the assets which are the subject of such
Asset Sale for such period, or increased by an amount equal to Consolidated
EBITDA (if negative), directly attributable thereto for such period and
Consolidated Interest Expense for such period shall be reduced by an amount
equal to the Consolidated Interest Expense directly attributable to any
Indebtedness of the Company or any Restricted Subsidiary repaid, repurchased,
defeased or otherwise discharged with respect to the Company and its continuing
Restricted Subsidiaries in connection with such Asset Sale for such period (or,
if the Capital Stock of any Restricted Subsidiary is sold, the Consolidated
Interest Expense for such period directly attributable to the Indebtedness of
such Restricted Subsidiary to the extent the Company and its continuing
Restricted Subsidiaries are no longer liable for such Indebtedness after such
sale);
(4) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger, amalgamation or otherwise) shall have made an
Investment in any Restricted Subsidiary (or any Person which becomes a
Restricted Subsidiary) or an acquisition of assets, including any acquisition of
assets occurring in connection with a transaction requiring a calculation to be
made hereunder, which constitutes all or substantially all of an operating unit
of a business, Consolidated EBITDA and Consolidated Interest Expense for such
period shall be
calculated after giving pro forma effect thereto (including the incurrence of
any Indebtedness) as if such Investment or acquisition occurred on the first day
of such period; and
(5) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged or amalgamated with or
into the Company or any Restricted Subsidiary since the beginning of such
period) shall have made any Asset Sale, any Investment or acquisition of assets
that would have required an adjustment pursuant to clause (3) or (4) above if
made by the Company or a Restricted Subsidiary during such period, Consolidated
EBITDA and Consolidated Interest Expense for such period shall be calculated
after giving pro forma effect thereto as if such Asset Sale, Investment or
acquisition occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is to be
given to an acquisition of assets, the amount of income or earnings relating
thereto and the amount of Consolidated Interest Expense associated with any
Indebtedness incurred in connection therewith, the pro forma calculations shall
be determined in good faith by a responsible financial or accounting Officer of
the Company. Any such pro forma calculations may include operating expense
reductions (net of associated expenses) for such period resulting from the
acquisition or other Investment which is being given pro forma effect that (a)
would be permitted to be reflected on pro forma financial statements pursuant to
Rule 11-02 of Regulation S-X under the Securities Act or (b) have been realized
or for which substantially all the steps necessary for realization have been
taken or, at the time of determination, are reasonably expected to be taken
within 90 days immediately following any such acquisition or other Investment,
including, but not limited to, the execution, termination, renegotiation or
modification of any contracts, the termination of any personnel or the closing
of any facility, as applicable, provided that, in any case, such adjustments
shall be calculated on an annualized basis and such adjustments are set forth in
an Officers' Certificate signed by the Company `s chief financial officer and
another Officer which states in detail (i) the amount of such adjustment or
adjustments, (ii) that such adjustment or adjustments are based on the
reasonable good faith beliefs of the Officers executing such Officers'
Certificate at the time of such execution and (iii) that such adjustment or
adjustments and the plan or plans related thereto have been reviewed and
approved by the Company's Board of Directors. Any such Officers' Certificate
will be provided to the Agent if the Company incurs any Indebtedness or takes
any other action under this Agreement in reliance thereon. If any Indebtedness
bears a floating rate of interest and is being given pro forma effect, the
interest on such Indebtedness shall be calculated as if the rate in effect on
the date of determination had been the applicable rate for the entire period
(taking into account any Interest Rate Agreement applicable to such Indebtedness
if such Interest Rate Agreement has a remaining term in excess of 12 months).
If any Indebtedness is incurred under a revolving credit facility and
is being given pro forma effect, the interest on such Indebtedness shall be
calculated based on the average daily balance of such Indebtedness for the four
fiscal quarters subject to the pro forma calculation to the extent that such
Indebtedness was incurred solely for working capital purposes.
"CONSOLIDATED FIXED CHARGES" means, with respect to any Person for any
period, the sum, without duplication, of:
(1) Consolidated Interest Expense (excluding amortization or
write-off of deferred financing costs); plus
(2) the product of (x) the amount of all dividend payments on
any series of Preferred Stock of such Person (other than (i) dividends paid in
Qualified Capital Stock, (ii) dividends included in the definition of
Consolidated Interest Expense and (iii) dividends paid to the Company or any
Wholly Owned Restricted Subsidiary) paid, accrued or scheduled to be paid or
accrued during such period times (y) a fraction, the numerator of which is one
and the denominator of which is one minus the then current effective
consolidated federal, state and local tax rate of such Person, expressed as a
decimal.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person for
any period, the difference of (a) the aggregate of the interest expense of such
Person and its Restricted Subsidiaries for such period, on a consolidated basis,
as determined in accordance with GAAP, and including, without duplication, (i)
all amortization or accretion of original issue discount; (ii) the interest
component of Capitalized Lease Obligations paid, accrued and/or scheduled to be
paid or accrued by such Person and its Restricted Subsidiaries during such
period; and (iii) net cash costs under all Interest Swap Obligations (including
amortization of fees), minus, (b) to the extent included in such total interest
expense, and to the extent incurred by the Company or any Restricted Subsidiary,
(i) amortization or write off of debt issuance costs and deferred financing
costs and (ii) interest expense attributable to dividends in respect of all
Preferred Stock of the Company that is not Disqualified Stock pursuant to
Statement of Financial Accounting Standards No. 150, "Accounting for Certain
Financial Instruments with Characteristics of Both Liabilities and Equity".
"CONSOLIDATED NET INCOME" means, for any period, the aggregate net
income (or loss) of the Company and its consolidated Subsidiaries for such
period on a consolidated basis, determined in accordance with GAAP; provided,
that there shall be excluded therefrom (to the extent otherwise included
therein):
(1) any net income of any Person (other than the Company) if
such Person is not a Restricted Subsidiary, except that: (a) the Company's
equity in the net income of any such Person for such period shall be included in
such Consolidated Net Income up to the aggregate amount of cash actually
distributed by such Person during such period to the Company or a Restricted
Subsidiary as a dividend or other distribution; and (b) the Company's equity in
a net loss of any such Person for such period shall be included in determining
such Consolidated Net Income;
(2) any gain (or loss) realized upon the sale or other
disposition of any assets of the Company, its consolidated Subsidiaries or any
other Person (including pursuant to any sale-and-leaseback arrangement) which is
not sold or otherwise disposed of in the ordinary course of business and any
gain (or loss) realized upon the sale or other disposition of any Capital Stock
of any Person;
(3) extraordinary gains or losses;
(4) income or loss attributable to discontinued operations
(including, without limitation, operations disposed of during such period
whether or not such operations were classified as discontinued);
(5) the cumulative effect of a change in accounting
principles;
(6) any non-recurring fees, charges or other expenses
(including bonus and retention payments and non-cash compensation charges
related to employee stock option awards, restricted stock and other equity
awards) made or incurred in connection with the Acquisition or the financing
thereof;
(7) any adjustments, restructuring costs, non-recurring
expenses, non-operating expenses and other similar costs that are (a) described
on Schedule A hereto or (b) incurred in connection with acquisitions consummated
after the Closing Date;
(8) amortization of debt discount;
(9) capitalized interest;
(10) non-cash interest expense;
(11) dividends accrued in respect of all Preferred Stock of
the Company that is Disqualified Stock and all Preferred Stock of any Restricted
Subsidiary, in each case to the extent held by Persons other than the Company or
a Wholly Owned Restricted Subsidiary (other than dividends payable solely in
Capital Stock (other than Disqualified Stock)); provided, however, that such
dividends will be multiplied by a fraction the numerator of which is one and the
denominator of which is one minus the effective combined tax rate of the issuer
of such Preferred Stock (expressed as a decimal) for such period (as estimated
by the chief financial officer of the Company in good faith);
(12) interest accruing on any Indebtedness of any other Person
to the extent such Indebtedness is guaranteed by (or secured by the assets of)
the Company or any Restricted Subsidiary;
(13) Systems/Organizational Establishment Expenses;
(14) interest expense attributable to dividends in respect of
all Preferred Stock of the Company that is not Disqualified Stock pursuant to
Statement of Financial Accounting Standards No. 150, "Accounting for Certain
Financial Instruments with Characteristics of Both Liabilities and Equity"; and
(15) depreciation or amortization relating to purchase
accounting;
in each case, for such period. Notwithstanding the foregoing, for the purposes
of Section 6.3 only, there shall be excluded from Consolidated Net Income any
repurchases, repayments or redemptions of Investments, proceeds realized on the
sale of Investments or return of capital to the Company or a Restricted
Subsidiary to the extent such repurchases, repayments,
redemptions, proceeds or returns increase the amount of Restricted Payments
permitted under such covenant.
"CONSOLIDATED NET WORTH" of any Person means the consolidated
stockholders' equity of the Person, determined on a consolidated basis in
accordance with GAAP, less (to the extent included in such calculation) the
amount of any such stockholders' equity attributable to Disqualified Capital
Stock of such Person.
"CONTAINER" means marine and maritime containers (including dry cargo
containers, refrigerated containers, tank containers, special purpose container,
gen sets, open top containers, flat rack containers, bulk containers, high cube
containers, cellular palletwide containers and all other related equipment) .
"COVERED TAXES" has the meaning ascribed to it in Section 10.19.
"CREDIT AGREEMENT" means the Credit Agreement dated as of the Closing
Date, among Transamerica Leasing Inc., Trans Ocean Ltd., Trans Ocean Container
Corporation, the lenders party thereto (together with their successors and
assigns) and Fortis Bank (Nederland) N.V., as administrative agent (in such
capacity, together with its successors and assigns, the "ADMINISTRATIVE AGENT"),
as amended, extended, renewed, restated, replaced, increased, supplemented or
otherwise modified (in whole or in part, and without limitation as to amount,
terms, conditions, covenants and other provisions) from time to time (whether
upon or after termination or otherwise), and any agreement (and related
documents) governing Indebtedness incurred to Refinance or otherwise replace
(including by means of sales of debt securities to institutional investors), in
whole or in part, the borrowings and commitments then outstanding or permitted
to be outstanding under such Credit Agreement or a successor Credit Agreement.
"CURRENCY AGREEMENT" means any foreign exchange contract, currency swap
agreement, futures contract, options contract, synthetic cap or other similar
agreement or arrangement designed to protect the Company or any Subsidiary
against fluctuations in currency values.
"CUSTODIAN" means any receiver, interim receiver, receiver and manager,
trustee, assignee, liquidator, sequestrator or similar official charged with
maintaining possession or control over property for one or more creditors,
whether under any Bankruptcy Law or otherwise.
"DEFAULT" means an event or condition the occurrence of which is, or
with the lapse of time or the giving of notice or both would be, an Event of
Default.
"DISQUALIFIED CAPITAL STOCK" with respect to any Person means that
portion of any Capital Stock of such Person which, by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable at
the option of the holder thereof), or upon the happening of any event (other
than an event that would constitute a Change of Control), matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the sole option of the holder thereof (except in each case,
upon the occurrence of a Change of Control) on or prior to November 3, 2015 for
cash or is convertible into or
exchangeable for debt securities of the Company or its Subsidiaries at any time
prior to such anniversary.
"DOCUMENTS" means the Loan Documents and the Credit Agreement.
"DOLLARS" or the sign "$" means the lawful money of the United States
of America.
"ELIGIBLE ASSIGNEE" means (a) if the effective date of the proposed
assignment or participation of the Interim Loan, an Interim Note or any interest
therein or herein is prior to the first anniversary of the Closing Date, (i) any
Lender or any Affiliate of any Lender, or (ii) with respect to all other
Persons, any Person to which the Company has given its prior written consent to
an assignment or sale of a participation to such Person (which consent may be
granted, denied or withheld in the Company's sole discretion); and (b) if the
effective date of the proposed assignment or participation of the Interim Loan,
a Interim Note or any interest therein or herein is on or after the first
anniversary of the Closing Date, any Person, so long as such assignment is
consummated in accordance with Law.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA, as in effect at the date
of this Agreement and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
"EVENT OF DEFAULT" means each of the events set forth in Section 7.
"EXCHANGE" has the meaning ascribed to it in Section 5.2(ii).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
or any successor statute or statutes thereto.
"EXCHANGE NOTES" has the meaning ascribed to it in Section 5.2(ii).
"EXCHANGE OFFER" means an exchange offer that may be made by the
Company, pursuant to the Registration Rights Agreement, to exchange for any and
all the Exchange Notes a like aggregate principal amount of notes having
substantially identical terms to the Exchange Notes registered under the
Securities Act.
"EXCHANGE REQUEST" has the meaning ascribed to it in Section 5.2.
"EXISTING INDEBTEDNESS" means the Indebtedness of the Company and its
Restricted Subsidiaries outstanding on the Closing Date.
"FAIR MARKET VALUE" means, with respect to any asset or property, the
price which could be negotiated in an arm's length, free market transaction, for
cash, between a willing seller and a willing and able buyer, neither of whom is
under undue pressure or compulsion to complete the transaction. Fair Market
Value shall be determined by the Board of Directors of the Company acting in
good faith and shall be evidenced by a Board Resolution of the Board of
Directors of the Company delivered to the Agent.
"FOREIGN SUBSIDIARY" means, with respect to any Person, any Subsidiary
of such Person that is organized under the laws of any jurisdiction other than
the United States of America, any state thereof or the District of Columbia.
"GAAP" means accounting principles generally accepted in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, which are in effect as of the
Closing Date.
"INCENTIVE ARRANGEMENTS" means any (a) earn-out agreements, (b) stock
appreciation rights, (c) "phantom" stock plans, (d) employment agreements, (e)
non-competition agreements and (f) incentive and bonus plans entered into by the
Company or any Restricted Subsidiary for the benefit of, and in order to retain,
executives, officers or employees of Persons or businesses in connection with
the acquisition of the Capital Stock of such Persons or the acquisition of such
businesses by the Company or such Restricted Subsidiary.
"INCUR" has the meaning set forth in Section 6.1 (and "incurrence,"
"incurred," "incurrable" and "incurring" shall have meanings correlative to the
foregoing).
"INDEBTEDNESS" means with respect to any Person, without duplication:
(1) all Obligations of such Person for borrowed money;
(2) all Obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(3) all Capitalized Lease Obligations of such Person;
(4) all Obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations and all
Obligations under any title retention agreement (but excluding trade accounts
payable and other accrued liabilities arising in the ordinary course of business
that are not overdue by 90 days or more or are being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted and any
deferred purchase price represented by earn outs consistent with the Company's
past practice);
(5) all Obligations for the reimbursement of any obligor on
any letter of credit, banker's acceptance or similar credit transaction, whether
or not then due;
(6) guarantees and other contingent obligations in respect of
Indebtedness referred to in clauses (1) through (5) above and clause (8) below;
(7) all Obligations of any other Person of the type referred
to in clauses (1) through (6) which are secured by any Lien on any property or
asset of such Person, the amount of any such Obligation being deemed to be the
lesser of the Fair Market Value of the property or asset securing such
Obligation or the amount of such Obligation;
(8) all Interest Swap Obligations and all Obligations under
Currency Agreements of such Person; and
(9) all Disqualified Capital Stock issued by such Person with
the amount of Indebtedness represented by such Disqualified Capital Stock being
equal to the greater of its voluntary or involuntary liquidation preference and
its maximum fixed repurchase price, but excluding accrued dividends, if any.
For purposes hereof, the "MAXIMUM FIXED REPURCHASE PRICE" of any Disqualified
Capital Stock which does not have a fixed repurchase price shall be calculated
in accordance with the terms of such Disqualified Capital Stock as if such
Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Agreement, and if such price
is based upon, or measured by, the Fair Market Value of such Disqualified
Capital Stock, such Fair Market Value shall be determined reasonably and in good
faith by the Board of Directors of the issuer of such Disqualified Capital
Stock.
"INDEMNIFIED LIABILITIES" has the meaning ascribed to such term in
Section 10.4.
"INDEMNITEES" has the meaning ascribed to such term in Section 10.4.
"INDEPENDENT FINANCIAL ADVISOR" means a nationally-recognized
accounting, appraisal or investment banking firm: (a) that does not, and whose
directors, officers and employees or Affiliates do not, have a direct or
indirect financial interest in the Company; and (b) that, in the judgment of the
Board of Directors of the Company, is otherwise independent and qualified to
perform the task for which it is to be engaged.
"INITIAL QUARTERLY PERIOD" means the period commencing on the Closing
Date and ending on the date that is 90 days after the Closing Date, or if such
date is not a Business Day, the first Business Day succeeding such date.
"INTEREST RATE AGREEMENT" means, with respect to any Person, any
interest rate swap agreement, interest rate cap agreement or other financial
agreement or arrangement with respect to exposure of such Person or its
Subsidiaries to interest rates.
"INTEREST SWAP OBLIGATIONS" means the obligations of any Person
pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"INTERIM LOAN" means, collectively, the loans made by the Lenders
pursuant to Section 2.1A.
"INTERIM LOAN COMMITMENT" means the commitment of the Lenders to make
the Interim Loan as set forth in Section 2.1A.
"INTERIM NOTES" has the meaning ascribed to such term in Section 2.1D.
"INTERNAL REVENUE CODE" or "CODE" means the Internal Revenue Code of
1986, as amended from time to time, and any successor code or statute.
"INVESTMENT" in any Person means any direct or indirect advance, loan
(other than advances to customers in the ordinary course of business that are
recorded as accounts receivable on the balance sheet of the lender) or other
extensions of credit (including by way of guarantee or similar arrangement) or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase or acquisition for value of Capital Stock, Indebtedness
or other similar instruments issued by such Person. If the Company or any
Restricted Subsidiary issues, sells or otherwise disposes of any Capital Stock
of a Person that is a Restricted Subsidiary such that, after giving effect
thereto, such Person is no longer a Restricted Subsidiary, any Investment by the
Company or any Restricted Subsidiary in such Person remaining after giving
effect thereto will be deemed to be a new Investment at such time. The
acquisition by the Company or any Restricted Subsidiary of a Person that holds
an Investment in a third Person will be deemed to be an Investment by the
Company or such Restricted Subsidiary in such third Person at such time. Except
as otherwise provided for herein, the amount of an Investment shall be its fair
market value at the time the Investment is made and without giving effect to
subsequent changes in value.
For purposes of the definition of "Unrestricted Subsidiary", the
definition of "Restricted Payment" and Section 6.3:
(i) "Investment" shall include the portion (proportionate to
the Company's equity interest in such Subsidiary) of the Fair Market Value of
the net assets of any Subsidiary of the Company at the time that such Subsidiary
is designated an Unrestricted Subsidiary; provided, that upon a redesignation of
such Subsidiary as a Restricted Subsidiary, the Company shall be deemed to
continue to have a permanent "Investment" in an Unrestricted Subsidiary equal to
an amount (if positive) equal to (a) the Company's "Investment" in such
Subsidiary at the time of such redesignation less (b) the portion (proportionate
to the Company's equity interest in such Subsidiary) of the Fair Market Value of
the net assets of such Subsidiary at the time of such redesignation; and
(ii) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its Fair Market Value at the time of such
transfer, in each case as determined in good faith by the Board of Directors of
the Company.
"LAWS" means all applicable statutes, laws, ordinances, regulations,
rules, orders, judgments, writs, injunctions or decrees of any state,
commonwealth, nation, territory, possession or province, or tribunal, and "Law"
means each of the foregoing.
"LENDERS" has the meaning ascribed to that term in the introduction to
this Agreement and shall include any assignee of the Interim Loan, any Interim
Note or Interim Loan Commitment to the extent of such assignment.
"LIEN" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"LIQUIDATED DAMAGES" has the meaning ascribed to that term in the
Registration Rights Agreement.
"LOAN DOCUMENTS" means this Agreement, the Interim Notes, the Senior
Indenture, the Exchange Notes and the Registration Rights Agreement.
"LOAN OBLIGATIONS" means all Obligations of every nature of the Company
from time to time owing to the Lenders and Agent under the Loan Documents.
"MAJORITY LENDERS" means the Agent together with Lenders holding in the
aggregate more than 50% of the outstanding principal amount of Interim Notes.
"MANAGEMENT FEE" means, collectively, the consulting services fee and
all other amounts payable to The Jordan Company, L.P. pursuant to the terms of
that certain Management Consulting Agreement dated as of November 3, 2004 among
The Jordan Company, L.P., the Company and the Company's direct and indirect
subsidiaries party thereto (as in effect on the date hereof) and (ii) the
consulting services fee and all other amounts payable to Xxxxxx & Company
Limited pursuant to the terms of that certain Management Consulting Agreement
dated as of November 3, 2004 among Xxxxxx & Company Limited, the Company and the
Company's direct and indirect subsidiaries party thereto (as in effect on the
date hereof).
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the
business, results of operations, properties, assets, or financial condition of
the Company and its Subsidiaries, taken as a whole.
"MATURITY DATE" means November 2, 2014.
"NET CASH PROCEEDS" means, with respect to any Asset Sale, the proceeds
in the form of cash or Cash Equivalents, including payments in respect of
deferred payment obligations when received in the form of cash or Cash
Equivalents (other than the portion of any such deferred payment constituting
interest), received by the Company or any of its Restricted Subsidiaries from
such Asset Sale, net of:
(1) reasonable out-of-pocket expenses and fees relating to
such Asset Sale (including, without limitation, legal, accounting and investment
banking and other fees and sales commissions);
(2) all federal, state, provincial, foreign and local taxes
and other costs and expenses actually paid, accrued or estimated by the Company
(in good faith) as a consequence of such Asset Sale;
(3) repayment of, or any other payments made in respect of,
Indebtedness that is secured by the property or assets that are the subject of
such Asset Sale which (i) is required to
be repaid in connection with such Asset Sale or (ii) is paid in order to obtain
a necessary consent to such Asset Sale; and
(4) all distributions and other payments required to be made
to minority interest holders in Restricted Subsidiaries as a result of such
Asset Sale;
(5) appropriate amounts to be provided by the Company or any
Restricted Subsidiary, as the case may be, as a reserve, in accordance with
GAAP, against any liabilities associated with such Asset Sale and retained by
the Company or any Restricted Subsidiary, as the case may be, after such Asset
Sale, including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Asset Sale; and
(6) any portion of the purchase price from an Asset Sale
placed in escrow , whether as a reserve for adjustment of the purchase price,
for satisfaction of indemnities in respect of such Asset Sale or otherwise in
connection with such Asset Sale; provided, that upon the termination of such
escrow, Net Cash Proceeds will be increased by any portion of funds in such
escrow that are released to the Company or any Wholly Owned Restricted
Subsidiary.
"NOTE OFFERING" means the issuance by the Company, after the Closing
Date on one or more occasions, of notes or other debt securities in a private
placement or public offering (including a Rule 144A offering or similar
transaction).
"NOTICE OF BORROWING" means a notice substantially in the form of
Exhibit I with respect to a proposed borrowing.
"OBLIGATIONS" means all obligations for principal, premium, interest,
Liquidated Damages, penalties, fees, indemnifications, reimbursements, damages
and other liabilities payable under the documentation governing any
Indebtedness.
"OFFER PAYMENT DATE" has the meaning ascribed to such term in Section
2.4A(iv)(c)(2).
"OFFICER" means the Chief Executive Officer, the President, the Chief
Financial Officer or any Vice President of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers of
the Company, at least one of whom shall be the principal financial officer of
the Company, and delivered to the Agent.
"OTHER TAXES" has the meaning ascribed to such term in Section 10.19B.
"PAYMENT OFFICE" shall mean the office of the Agent located at 0000
Xxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000, or such other office as
the Agent may designate to the Company and the Lenders from time to time.
"PERMITTED BUSINESS" means the Business and any business that is the
same as or similar, reasonably related, complementary or incidental to the
business in which the Company
and its Restricted Subsidiaries are engaged on the Closing Date (including
Qualified Containers Transactions).
"PERMITTED HOLDERS" means The Jordan Company, L.P., The Resolute Fund
SIE, L.P., The Resolute Fund Netherlands PV I, L.P., The Resolute Fund
Netherlands PV II, L.P., The Resolute Fund NQP, L.P., The Resolute Fund
Singapore PV, L.P., Edgewater Private Equity Fund III, L.P., Edgewater Private
Equity Fund IV, L.P., Fairholme Partners, L.P., Fairholme Ventures, Fairholme
Holdings, JZ Equity Partners PLC, and Seacon Holdings Limited and their
respective Affiliates.
"PERMITTED INDEBTEDNESS" means, without duplication, each of the
following:
(1) Indebtedness under the Interim Notes issued in an
aggregate outstanding principal amount not to exceed $275.0 million;
(2) Indebtedness incurred from time to time pursuant to the
Credit Agreement or Qualified Container Indebtedness in an aggregate principal
amount not to exceed the greater of (a) $875 million and (b) 85% of the book
value of the consolidated total tangible assets of the Company and its
Subsidiaries (including, without limitation, Qualified Containers Subsidiaries);
(3) other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Closing Date;
(4) Hedging Obligations consisting of (a) Interest Rate
Agreements related to Indebtedness permitted to be incurred by Company and any
Restricted Subsidiary pursuant to this Agreement, (b) Currency Agreements not
entered into for the purpose of speculation and (c) Commodity Price Protection
Agreements not entered into for the purpose of speculation;
(5) Intercompany Indebtedness of the Company or a Restricted
Subsidiary for so long as such Indebtedness is held by the Company or a
Wholly-Owned Restricted Subsidiary; provided that if as of any date any other
Person owns or holds any such Indebtedness in respect of such Indebtedness, such
date shall be deemed the incurrence of Indebtedness not constituting Permitted
Indebtedness under this clause (5) by the issuer of such Indebtedness;
(6) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against insufficient funds in
the ordinary course of business; provided, that such Indebtedness is
extinguished within three business days of incurrence;
(7) Indebtedness of the Company or any of its Restricted
Subsidiaries represented by letters of credit for the account of the Company or
such Restricted Subsidiary, as the case may be, in order to provide security for
workers' compensation claims, payment obligations in connection with
self-insurance or similar requirements in the ordinary course of business;
(8) obligations in respect of performance, bid, surety and
appeal bonds and completion guarantees provided by the Company or any Restricted
Subsidiary in the ordinary course of business;
(9) Indebtedness represented by Capitalized Lease Obligations
and Purchase Money Indebtedness of the Company and its Restricted Subsidiaries
incurred from time to time in the ordinary course of business (including
Refinancings thereof that do not result in an increase in the aggregate
principal amount of Indebtedness of such Person as of the date of such proposed
Refinancing (plus the amount of any premium required to be paid under the terms
of the instrument governing such Indebtedness and plus the amount of reasonable
expenses incurred by the Company in connection with such Refinancing)) not to
exceed $50.0 million at any time outstanding;
(10) Refinancing Indebtedness;
(11) Indebtedness represented by guarantees (i) by the Company
or a Restricted Subsidiary of Indebtedness incurred by the Company or a
Restricted Subsidiary or (ii) by a Qualified Containers Subsidiary of
Indebtedness incurred by another Qualified Containers Subsidiary, in either case
so long as the incurrence of such Indebtedness is otherwise permitted by the
terms of this Agreement;
(12) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary providing for indemnification, adjustment of purchase
price or similar obligations, in each case, incurred in connection with the
disposition of any business, assets or Subsidiary, or from letters of credit,
surety bonds or performance bonds securing any obligation of the Company or a
Restricted Subsidiary pursuant to such agreements (to the extent such letters of
credit are not drawn against, or if and to the extent drawn against, the
Indebtedness representing such drawing is extinguished within 10 Business Days
from its incurrence) other than guarantees of Indebtedness incurred by any
Person acquiring all or any portion of such business, assets or Subsidiary for
the purpose of financing such acquisition; provided that the maximum aggregate
liability in respect of all such Indebtedness shall at no time exceed the gross
proceeds actually received by the Company and the Subsidiary in connection with
such disposition;
(13) Indebtedness of the Company or any of its Restricted
Subsidiaries to the extent the net proceeds thereof are promptly used to redeem
or repay the Interim Notes in full in accordance with this Agreement;
(14) Indebtedness of Foreign Subsidiaries in an aggregate
principal amount at any time outstanding not in excess of $25.0 million; or
(15) additional Indebtedness of the Company and its Restricted
Subsidiaries in an aggregate principal amount not to exceed $50.0 million at any
time outstanding.
For purposes of determining compliance with Section 6.1, (a) the
outstanding principal amount of any item of Indebtedness shall be counted only
once and (b) in the event that an item of Indebtedness meets the criteria of
more than one of the categories of Permitted Indebtedness described in clause
(1) through (15) above or is entitled to be incurred pursuant to the
Consolidated Fixed Charge Coverage Ratio provisions of such covenant, the
Company shall, in its sole discretion, classify (or later reclassify) such item
of Indebtedness in any manner that complies with this covenant. The Company will
be entitled to divide and classify an item of Indebtedness in more than one of
the types of Indebtedness described above. The accrual of
interest, the accretion or amortization of original issue discount, the payment
of interest on any Indebtedness in the form of additional Indebtedness with the
same terms and the reclassification of preferred stock as Indebtedness due to a
change in accounting principles will not be deemed to be an incurrence of
Indebtedness; provided, in each such case, that the amount of any such accrual,
accretion or payment is included in Fixed Charges of the Company as accrued.
Notwithstanding any other provision of this covenant, the maximum amount of
Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to
this covenant shall not be deemed to be exceeded solely as a result of
fluctuations in exchange rates or currency values.
"PERMITTED INVESTMENTS" means:
(1) Investments in any Person that is or will become
immediately after such Investment a Restricted Subsidiary or that will merge or
consolidate with or into the Company or a Restricted Subsidiary, or that
transfers or conveys all or substantially all of its assets to the Company or a
Restricted Subsidiary;
(2) Investments in the Company by any Restricted Subsidiary;
provided that any Indebtedness evidencing such Investment is unsecured and
subordinated, pursuant to a written agreement, to the Company's Obligations
under the Interim Notes and this Agreement;
(3) Investments in any Qualified Containers Subsidiary or any
Investment by a Qualified Containers Subsidiary in any other Person incurred in
connection with any Qualified Containers Transaction;
(4) Investments in cash and Cash Equivalents;
(5) Hedging Obligations consisting of (a) Interest Rate
Agreements, (b) Currency Agreements and (c) Commodity Price Protection
Agreements entered into in the ordinary course of the Company's or its
Restricted Subsidiaries' businesses and otherwise in compliance with this
Agreement;
(6) Investments in the Interim Notes;
(7) Investments in securities of trade creditors or customers
received pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade creditors or customers in exchange for
claims against such trade creditors or customers;
(8) Investments as a result of consideration received in
connection with an Asset Sale made in compliance with Section 6.5;
(9) Investments in existence on the Closing Date and any
extension, modification or renewal of any such Investments existing on the
Closing Date, but only to the extent not involving additional advances,
contributions or other Investments of cash or other assets or other increases
thereof (other than as a result of the accrual or accretion of interest or
original issue discount or the issuance of pay-in-kind securities, in each case,
pursuant to the terms of such Investment as in effect on the Closing Date;
(10) loans and advances, including advances for travel and
moving expenses, to employees, officers and directors of the Company and its
Restricted Subsidiaries in the ordinary course of business for bona fide
business purposes and in accordance with applicable laws;
(11) advances to suppliers and customers in the ordinary
course of business;
(12) an Investment by the Company or any Restricted Subsidiary
in receivables owing to the Company or any Restricted Subsidiary if created or
acquired in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms; provided, however, that such trade terms
may include such concessionary trade terms as the Company or any such Restricted
Subsidiary deems reasonable under the circumstances;
(13) Investments as lessor under arm's-length capital leases
(determined in accordance with GAAP) of maritime containers entered into on
customary terms in the ordinary course of business with unaffiliated third
parties;
(14) Investments in any Person to the extent such Investments
consist of prepaid expenses, negotiable instruments held for collection and
lease, utility and workers' compensation, performance and other similar deposits
made in the ordinary course of business by the Company or any Restricted
Subsidiary; and
(15) additional Investments in an aggregate amount not to
exceed $25.0 million at any time outstanding.
"PERMITTED LIENS" means the following types of Liens:
(1) Liens (other than Liens arising under ERISA) for taxes,
assessments or governmental charges or claims either (a) not delinquent or (b)
contested in good faith by appropriate proceedings and as to which the Company
or its Restricted Subsidiaries shall have set aside on its books such reserves
as may be required pursuant to GAAP;
(2) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens
imposed by law or pursuant to customary reservations or retentions of title
incurred in the ordinary course of business for sums not yet delinquent or being
contested in good faith, if such reserve or other appropriate provision, if any,
as shall be required by GAAP shall have been made in respect thereof;
(3) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security, including any Lien securing letters of credit
issued in the ordinary course of business, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money);
(4) easements, rights-of-way, zoning restrictions and other
similar charges or encumbrances in respect of real property not interfering in
any material respect with the ordinary conduct of the business of the Company or
any of its Restricted Subsidiaries;
(5) any interest or title of a lessor under any Capitalized
Lease Obligation permitted pursuant to clause (9) of the definition of
"Permitted Indebtedness;" provided, that such Liens do not extend to any
property or assets which is not leased property subject to such Capitalized
Lease Obligation;
(6) Liens securing Purchase Money Indebtedness permitted
pursuant to clause (9) of the definition of "Permitted Indebtedness;" provided,
that (a) the Indebtedness shall not exceed the cost of the property or assets
acquired, together, in the case of real property, with the cost of the
construction thereof and improvements thereto, and shall not be secured by a
Lien on any property or assets of the Company or any Restricted Subsidiary other
than such property or assets so acquired or constructed and improvements thereto
and (b) the Lien securing such Indebtedness shall be created within 180 days of
such acquisition or construction or, in the case of a refinancing of any
Purchase Money Indebtedness, within 180 days of such refinancing;
(7) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of bankers'
acceptances issued or created for the account of such Person to facilitate the
purchase, shipment or storage of such inventory or other goods;
(8) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(9) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual, or warranty requirements of the
Company or any of its Restricted Subsidiaries, including rights of offset and
set-off;
(10) Liens securing Interest Swap Obligations that relate to
Indebtedness that is otherwise permitted under this Agreement;
(11) Liens securing Indebtedness under Currency Agreements
that are permitted under this Agreement;
(12) judgment Liens not giving rise to an Event of Default;
(13) Liens securing Acquired Indebtedness incurred in
accordance with Section 6.1; provided, that:
(a) such Liens secured such Acquired Indebtedness at
the time of and prior to the incurrence of such Acquired Indebtedness by the
Company or a Restricted Subsidiary and were not granted in connection with, or
in anticipation of, the incurrence of such Acquired Indebtedness by the Company
or a Restricted Subsidiary; and
(b) such Liens do not extend to or cover any property
or assets of the Company or of any of its Restricted Subsidiaries other than
the property or assets that secured the Acquired Indebtedness prior to the
time such Indebtedness became Acquired Indebtedness of the Company or a
Restricted Subsidiary and are no more favorable to the lienholders than those
securing the Acquired Indebtedness prior to the incurrence of such Acquired
Indebtedness by the Company or a Restricted Subsidiary;
(14) Liens securing the Interim Notes and all other monetary
obligations under this Agreement;
(15) Liens securing Qualified Containers Indebtedness or
otherwise incurred in connection with a Qualified Containers Transaction;
(16) Liens existing as of the Closing Date;
(17) Liens in favor of the Company or the Restricted
Subsidiaries;
(18) Liens on assets of the Company or any Restricted
Subsidiaries securing Indebtedness and other Obligations under the Credit
Agreement; and
(19) Liens securing Refinancing Indebtedness incurred to
Refinance any Indebtedness secured by a Lien permitted under this paragraph and
incurred in accordance with Section 6.1; provided, that such Liens: (i) are no
less favorable to the Lenders and are not more favorable to the lienholders with
respect to such Liens than the Liens in respect of the Indebtedness being
Refinanced; and (ii) do not extend to or cover any property or assets of the
Company or any of its Restricted Subsidiaries not securing the Indebtedness so
Refinanced.
"PERSON" means an individual, partnership, corporation, limited
liability company, unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof.
"PREFERRED STOCK" of any Person means any Capital Stock of such Person
that has preferential rights to any other Capital Stock of such Person with
respect to dividends or redemptions or upon liquidation.
"PUBLIC EQUITY OFFERING" means an underwritten public offering of
Common Stock of the Company or any holding company of the Company pursuant to a
registration statement filed with the Commission (other than on Form S-8).
"PURCHASED ENTITIES" means Transamerica Leasing Inc., Trans Ocean Ltd.,
Transamerica Leasing do Brasil Ltda., Trans Ocean Container Corporation,
Spacewise Inc., Transamerica Leasing N.V., Transamerica Leasing SRL, ICS
Terminals (UK) Limited, Trans Ocean Regional Corporate Holdings, Transamerica
Leasing Pty. Ltd., Transamerica Leasing GmbH, Transamerica Leasing (HK) Ltd.,
Greybox Logistics Services Inc., Intermodal Equipment Inc., Greybox Services
Ltd. and Transamerica Leasing Limited.
"PURCHASE MONEY INDEBTEDNESS" means Indebtedness of the Company and its
Restricted Subsidiaries incurred for the purpose of financing all or any part of
the purchase price, or the cost of installation, construction or improvement, of
property or equipment, provided, that the aggregate principal amount of such
Indebtedness does not exceed the lesser of the Fair Market Value of such
property or such purchase price or cost.
"QUALIFIED CAPITAL STOCK" means any Capital Stock that is not
Disqualified Capital Stock.
"QUALIFIED CONTAINERS INDEBTEDNESS" means Indebtedness incurred by a
Qualified Containers Subsidiary in connection with, or pursuant to, a Qualified
Containers Transaction.
"QUALIFIED CONTAINERS SUBSIDIARY" means:
(1) Transamerica Leasing Inc., Trans Ocean Ltd. and Trans
Ocean Container Corporation;
(2) any Restricted Subsidiary that at the time of
determination shall be or continue to be designated a Qualified Containers
Subsidiary by the Board of Directors of the Company in the manner provided
below; and
(3) without regard to clause (2) above or to the paragraph
immediately below, any Subsidiary of a Qualified Containers Subsidiary.
The Board of Directors may designate any Restricted Subsidiary
(including any newly acquired or newly formed Subsidiary) to be a Qualified
Containers Subsidiary unless such Subsidiary owns any Capital Stock of the
Company or any other Restricted Subsidiary that is not a Qualified Containers
Subsidiary or a Subsidiary of the Subsidiary to be so designated, provided, that
each Subsidiary to be so designated and each of its Subsidiaries at the time of
designation, and at all times thereafter does not create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable with respect to any
Indebtedness pursuant to which the lender has recourse to any of the assets of
the Company or any of its Restricted Subsidiaries other than Qualified
Containers Subsidiaries and Subsidiaries thereof in any way other than (a)
pursuant to representations, warranties, covenants, agreements and indemnities
entered into in connection or pursuant to a Qualified Containers Transaction or
(b) in connection with the Qualifying Container Assets and related assets as
provided in the definition of "Qualified Containers Transaction".
Any such designation by the Board of Directors shall be evidenced to
the Agent by promptly filing with the Agent a copy of the Board Resolution
giving effect to such designation and an Officers' Certificate certifying that
such designation complied with the foregoing provisions.
"QUALIFIED CONTAINERS TRANSACTION" means (a) any securitization or
similar financing transaction by a Qualified Containers Subsidiary or (b) any
transaction or series of transactions entered into by the Company or any of its
Restricted Subsidiaries, from time to time, pursuant to which the Company or
such Restricted Subsidiary sells, conveys or otherwise transfers to (i) a
Qualified Containers Subsidiary (in the case of a transfer by the Company or
such Restricted Subsidiary) and (ii) any other Person (in the case of a transfer
by a Qualified Containers Subsidiary), or grants a security interest in, any
Qualifying Container Assets (whether now existing or arising in the future) of
the Company or any of its Restricted Subsidiaries or Qualified Containers
Subsidiaries, and any assets related thereto, including, without limitation,
accounts receivable or rights under lease agreements, all contracts and all
guarantees or other obligations in respect of such Qualifying Container Assets,
proceeds of such Qualifying Container Assets and
other assets (including, without limitation, contract rights) which are
customarily transferred or in respect of which security interests are
customarily granted in connection with asset securitization transactions or
other financing arrangements involving Qualifying Container Assets and related
assets.
"QUALIFYING CONTAINER ASSETS" means Containers and related assets
(whether now existing or arising in the future) of the Company or any of its
Restricted Subsidiaries or Qualified Containers Subsidiaries, and any assets
related thereto, including, without limitation, accounts receivable or rights
under lease agreements, all contracts and all guarantees or other obligations in
respect of such Qualifying Container Assets, proceeds of such Qualifying
Container Assets and other assets (including, without limitation, contract
rights) which are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization
transactions or other financing arrangements involving Container and related
assets.
"QUARTERLY PERIOD" means the Initial Quarterly Period and each
successive 90-day period; provided that if any such 90-day period shall
terminate on a date that is not a Business Day, then the applicable Quarterly
Period to which such period shall relate shall instead terminate on the first
Business Day succeeding such date.
"REFINANCE" means, in respect of any security or Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "REFINANCED" and "REFINANCING"
shall have correlative meanings.
"REFINANCING INDEBTEDNESS" means any Refinancing by the Company or any
Restricted Subsidiary of Indebtedness incurred in accordance with Section 6.1
(other than pursuant to Permitted Indebtedness) or clause (1), (2), (3), (9),
(10) or (15) of the definition of Permitted Indebtedness, in each case that does
not:
(1) have an aggregate principal amount (or, if such
Indebtedness is issued with original issue discount, an aggregate offering
price) greater than the sum of (x) the aggregate principal amount of the
Indebtedness being Refinanced (or, if such Indebtedness being Refinanced is
issued with original issue discount, the aggregate accreted value) as of the
date of such proposed Refinancing plus (y) the amount of fees, expenses,
premium, defeasance costs and accrued but unpaid interest relating to the
Refinancing of such Indebtedness being Refinanced; or
(2) create Indebtedness with: (a) a Weighted Average Life to
Maturity that is less than the Weighted Average Life to Maturity of the
Indebtedness being Refinanced; or (b) a final maturity earlier than the final
maturity of the Indebtedness being Refinanced.
If such Indebtedness being Refinanced is subordinate or junior by its terms to
the Interim Notes, then such Refinancing Indebtedness shall be subordinate by
its terms to the Interim Notes at least to the same extent and in the same
manner as the Indebtedness being Refinanced.
"REGISTER" has the meaning ascribed to such term in Section 5.4.
"REGISTRATION RIGHTS AGREEMENT" means a registration rights agreement
substantially in the form of Exhibit II (with such changes therein as the Agent
and the Company shall approve).
"RESTRICTED PAYMENT" has the meaning ascribed to such term in
Section 6.3.
"RESTRICTED SUBSIDIARY" of any Person means any Subsidiary of such
Person which at the time of determination is not an Unrestricted Subsidiary.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"SENIOR INDENTURE" means an indenture between the Company and a trustee
substantially in the form of Exhibit III hereto (with such changes as the Agent
and the Company shall approve, and, at such time, if any, as notes issued
thereunder are sold in a public offering, with other appropriate changes to
reflect such public offering), as the same may at any time be amended, modified
and supplemented and in effect.
"SIGNIFICANT SUBSIDIARY" with respect to any Person, means any
Restricted Subsidiary of such Person that satisfies the criteria for a
"significant subsidiary" set forth in Rule 1-02(w) of Regulation S-X under the
Exchange Act.
"STOCK PURCHASE AGREEMENT" means the Stock Purchase Agreement dated as
of July 10, 2004 among TA Leasing Holding Co., Inc., Transamerica, Corporation
and Xxxxxx & Company Limited, as amended by the First Amendment to Stock
Purchase Agreement dated as of August 10, 2004 and the Second Amendment to Stock
Purchase Agreement dated as of September 30, 2004.
"SUBORDINATED INDEBTEDNESS" means Indebtedness of the Company which is
expressly subordinated in right of payment to the Interim Notes.
"SUBSIDIARY" with respect to any Person, means:
(1) any corporation of which the outstanding Capital Stock
having at least a majority of the votes entitled to be cast in the election of
directors under ordinary circumstances shall at the time be owned, directly or
indirectly, by such Person;
(2) any trust for which any Qualified Containers Subsidiary is
a depositor and any other Person created by a Qualified Containers Subsidiary
for the purposes of facilitating a Qualified Containers Transaction; or
(3) any other Person of which at least a majority of the
voting interest under ordinary circumstances is at the time, directly or
indirectly, owned by such Person.
"SURVIVING ENTITY" shall have the meaning ascribed to such term in
Section 6.5(b).
"SYNDICATION" has the meaning ascribed to such term in Section 10.2A.
"SYSTEMS/ORGANIZATIONAL ESTABLISHMENT EXPENSES" means the aggregate of
all expenditures (whether paid in cash or accrued as liabilities) by the Company
and the Restricted Subsidiaries in financial, information technology and other
similar systems of the Company and the Restricted Subsidiaries.
"TAXES" means all taxes, assessments, fees, levies, imposts, duties,
penalties, deductions, liabilities, withholdings or other charges of any nature
whatsoever, including interest penalties, from time to time or at any time
imposed by any Law or any tribunal.
"TRANSACTIONS" shall mean, collectively, (i) the Acquisition, (ii) the
incurrence of the loans drawn down on the Closing Date under the Credit
Agreement, (iii) the incurrence of the Interim Loan hereunder on the Closing
Date, (iv) any other transaction on the Closing Date contemplated in relation to
the foregoing and (v) the payment of fees and expenses in connection with the
foregoing.
"TRANSFEREE" has the meaning ascribed to such term in Section 10.19A.
"UNRESTRICTED SUBSIDIARY" of any Person means:
(1) any Subsidiary of such Person that at the time of
determination shall be or continue to be designated an Unrestricted Subsidiary
by the Board of Directors of such Person in the manner provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Subsidiary (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on
any property of, the Company or any other Subsidiary of the Company that is not
a Subsidiary of the Subsidiary to be so designated, provided that:
(1) the Company certifies to the Agent that such designation
complies with Section 6.3; and
(2) each Subsidiary to be so designated and each of its
Subsidiaries has not at the time of designation, and does not thereafter,
create, incur, issue, assume, guarantee or otherwise become directly or
indirectly liable with respect to any Indebtedness pursuant to which the lender
has recourse to any of the assets of the Company or any of its Restricted
Subsidiaries.
The Board of Directors may designate any Unrestricted Subsidiary to be
a Restricted Subsidiary only if:
(1) immediately after giving effect to such designation, the
Company is able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 6.1; and
(2) immediately before and immediately after giving effect to
such designation, no Default or Event of Default shall have occurred and be
continuing.
Any such designation by the Board of Directors shall be evidenced to
the Agent by promptly filing with the Agent a copy of the Board Resolution
giving effect to such designation and an Officers' Certificate certifying that
such designation complied with the foregoing provisions.
"U.S. LEGAL TENDER" means such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts.
"VOTING STOCK" means, with respect to any Person, securities of any
class or classes of Capital Stock of such Person entitling the holders thereof
(whether at all times or only so long as no senior class of stock has voting
power by reason of any contingency) to vote in the election of members of the
Board of Directors (or equivalent governing body) of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (1) the then
outstanding aggregate principal amount of such Indebtedness into (2) the sum of
the total of the products obtained by multiplying:
(a) the amount of each then remaining installment, sinking
fund, serial maturity or other required payment of principal, including payment
at final maturity, in respect thereof, by
(b) the number of years (calculated to the nearest
one-twelfth) which will elapse between such date and the making of such payment.
"WHOLLY-OWNED RESTRICTED SUBSIDIARY" of any Person means any Restricted
Subsidiary of such Person of which all the outstanding Capital Stock (other than
in the case of a Foreign Subsidiary, directors' qualifying shares or an
immaterial amount of shares required to be owned by other Persons pursuant to
applicable law) are owned by such Person or any Wholly-Owned Restricted
Subsidiary of such Person.
1.2 ACCOUNTING TERMS. For the purposes of this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP.
1.3 OTHER DEFINITIONAL PROVISIONS; ANNIVERSARIES. Any of the terms
defined in Section 1.1 may, unless the context otherwise requires, be used in
the singular or the plural depending on the reference.
SECTION 2 AMOUNT AND TERMS OF INTERIM LOAN COMMITMENT AND INTERIM LOAN;
INTERIM NOTES
2.1 INTERIM LOAN AND INTERIM NOTES.
A. INTERIM LOAN COMMITMENT. Subject to the terms and
conditions of this Agreement and in reliance upon the representations and
warranties of the Company herein set forth, the Lenders hereby severally and not
jointly agree to lend to the Company on the Closing Date $275,000,000 in the
aggregate (the "INTERIM Loan"), each such Lender committing to lend the amount
set forth next to such Lender's name on the signature pages hereto. The Lenders'
commitment to make the Interim Loan to the Company pursuant to this Section 2.1A
is herein called individually, the "INTERIM LOAN COMMITMENT" and collectively
the "INTERIM LOAN COMMITMENTS."
B. NOTICE OF BORROWING. When the Company desires to borrow
under this Section 2.1, it shall deliver to the Agent a Notice of Borrowing no
later than 3:00 P.M. (New York time) at least two Business Days in advance of
the Closing Date or such later date as shall be agreed to by the Agent. The
Notice of Borrowing shall specify the applicable date of borrowing (which shall
be a Business Day). Upon receipt of such Notice of Borrowing, the Agent shall
promptly notify each Lender of its pro rata share of the Interim Loan and the
other matters covered by the Notice of Borrowing.
C. DISBURSEMENT OF FUNDS. (i) No later than 10:00 a.m. (New
York time) on the Closing Date, or such later time on the Closing Date as shall
be agreed to by the Agent and each Lender, each Lender will make available its
pro rata share of the Interim Loan requested to be made on such date in the
manner provided below. All amounts shall be made available to the Agent in U.S.
Legal Tender and immediately available funds at the Payment Office and the Agent
immediately will make available to the Company by depositing to its account at
the Payment Office the aggregate of the amounts so made available in the type of
funds received.
Unless the Agent shall have been notified by any Lender prior
to the Closing Date that such Lender does not intend to make available to the
Agent its pro rata share of the Interim Loan to be made on such date, the Agent
may assume that such Lender has made such amount available to the Agent on such
date, and the Agent, in reliance upon such assumption, may (in its sole
discretion and without any obligation to do so) make available to the Company a
corresponding amount. If such corresponding amount is not in fact made available
to the Agent by such Lender and the Agent have made available same to the
Company, the Agent shall be entitled to recover such corresponding amount from
such Lender. If such Lender does not pay such corresponding amount forthwith
upon the Agent's demand therefor, the Agent shall promptly notify the Company,
and the Company shall immediately pay such corresponding amount to the Agent.
The Agent shall also be entitled to recover from such Lender or the Company, as
the case may be, interest on such corresponding amount in respect of each day
from the date such corresponding amount was made available by the Agent to the
Company to the date such corresponding amount is recovered by the Agent, at a
rate per annum equal to (x) if paid by such Lender, the overnight Federal Funds
Rate or (y) if paid by the Company, the then applicable rate of interest on the
Interim Loan.
(ii) Nothing herein shall be deemed to relieve any
Lender from its obligation to fulfill its Interim Loan Commitment hereunder or
to prejudice any rights which the Company may have against any Lender as a
result of any default by such Lender hereunder.
D. INTERIM NOTES. The Company shall execute and deliver to
each Lender on the Closing Date a Interim Note dated the Closing Date
substantially in the form of Exhibit IV to evidence such Lender's pro rata share
of the Interim Loan Commitment and with appropriate insertions (the "INTERIM
NOTES").
E. SCHEDULED PAYMENT OF INTERIM LOAN. The Company shall pay in
full the outstanding principal amount of the Interim Loan and all other
Obligations owing hereunder no later than the Maturity Date. Without limiting
the generality of the foregoing, the Company shall pay accrued interest (and
Liquidated Damages, if any) as and when required by Section 2.3B hereof and
reimburse the Agent and Lenders for costs and expenses of the Agent and Lenders,
to the extent reimbursable under Section 10.3 hereof, promptly, but in any event
within five Business Days, upon presentment of an invoice therefor.
F. TERMINATION OF INTERIM LOAN COMMITMENT. The Interim Loan
Commitment hereunder shall terminate on the earlier of (i) the termination of
the Stock Purchase Agreement in accordance with its terms or (ii) November 8,
2004 if no portion of the Interim Loan has been funded on or before such date.
G. PRO RATA BORROWINGS. The Interim Loan made under this
Agreement shall be made by the Lenders pro rata on the basis of their respective
Interim Loan Commitments. It is understood that no Lender shall be responsible
for any default by any other Lender of its obligation to make its portion of the
Interim Loan hereunder and that each Lender shall be obligated to make its
portion of the Interim Loan hereunder, regardless of the failure of any other
Lender to fulfill its commitments hereunder.
2.2 RESERVED.
2.3 INTEREST ON THE INTERIM LOAN.
A. RATE OF INTEREST. Subject to Section 2.3C, the Interim Loan
shall bear interest for each Quarterly Period at a rate per annum equal to the
Applicable Rate for such period.
B. INTEREST PAYMENTS. (i) Interest (and any Liquidated Damages
then payable) shall be payable in arrears on each April 15 and October 15,
commencing with April 15, 2005 and upon any prepayment or redemption of the
Interim Loan (to the extent accrued on the amount being prepaid) and at maturity
of the Interim Loan in respect of any amounts paid on such date.
C. POST-MATURITY INTEREST. Notwithstanding any other provision
of this Agreement to the contrary, any principal payments on the Interim Loan
not paid when due and, to the extent permitted by applicable law, any interest
payment on the Interim Loan not paid when due, in each case whether at stated
maturity, by notice of prepayment, by acceleration or otherwise, shall
thereafter bear interest payable upon demand at a rate which is 2.00% per annum
in excess of the rate of interest otherwise payable under this Agreement for the
Interim Loan.
D. COMPUTATION OF INTEREST. Interest on the Interim Loan shall
be computed on the basis of a 360-day year and twelve 30-day months. In
computing interest on the Interim Loan, the date of the making of the Interim
Loan shall be included and the date of payment shall be excluded.
2.4 PREPAYMENTS AND PAYMENTS.
A. PREPAYMENTS.
(i) VOLUNTARY PREPAYMENTS. The Company may, upon not
less than one Business Day's prior written or telephonic notice confirmed in
writing to the Agent at any time and from time to time, without premium or
penalty of any kind (other than in respect of Liquidated Damages), prepay the
Interim Loan made to the Company in whole or in part. Notice of prepayment
having been given as aforesaid, the principal amount of the Interim Loan to be
prepaid shall become due and payable on the prepayment date, together with
accrued but unpaid interest (and Liquidated Damages, if any), on such amount
to the prepayment date. Amounts of the Interim Loan so prepaid may not be
reborrowed.
(ii) MANDATORY PREPAYMENTS.
(a) PREPAYMENTS FROM ASSET SALES. Upon
receipt by the Company or any Restricted Subsidiary of the Company of Net Cash
Proceeds of any Asset Sale permitted by Section 6.10, the Company or any
Restricted Subsidiary of the Company shall, or shall cause its Restricted
Subsidiaries to, apply the Net Cash Proceeds of such Asset Sale within 365 days
of receipt thereof (v) in the case of the receipt by any Restricted Subsidiary
(but not by the Company) of Net Cash Proceeds of any Asset Sale, to repay
Indebtedness under any Qualified Containers Indebtedness or to repay
Indebtedness under the Credit Agreement; (w) to acquire all or substantially
all of the assets of, or any Capital Stock of, another Permitted Business, if,
after giving effect to any such acquisition of Capital Stock, the Permitted
Business is or becomes a Restricted Subsidiary of the Company; (x) to acquire
Capital Stock constituting a minority interest in any Person that at such time
is a Restricted Subsidiary that is engaged in a Permitted Business; (y) to
acquire or make an investment in property, plant, equipment or other
non-current assets that replace the properties and assets that were the subject
of such Asset Sale or that will be used or useful in the Permitted Business
(including expenditures for maintenance, repair or improvement of existing
properties and assets); or (z) a combination of repayment and investment
permitted by the foregoing clauses (v), (w), (x) and (y). Pending the final
application of Net Cash Proceeds, the Company or its Restricted Subsidiaries,
as the case may be, may temporarily reduce revolving credit borrowings or
invest such Net Cash Proceeds in Cash Equivalents.
To the extent not used as above, the Company shall, or shall
cause its Restricted Subsidiaries to, prepay the Interim Loan (an "ASSET SALE
PREPAYMENT"), all on a pro rata basis, with the Net Cash Proceeds received from
any Asset Sale on a date not later than the Business Day next succeeding the
365th day after the consummation of such Asset Sale if and to the extent that
such Net Cash Proceeds are not applied by the Company or any Restricted
Subsidiary of the Company within 365 days as provided in the immediately
preceding paragraph or such earlier date, if any, as the Board of Directors of
the Company or of such Restricted Subsidiary determines not to apply the Net
Cash Proceeds relating to such Asset Sale as set forth in clauses (v), (w), (x)
(y) or (z) of the preceding paragraph. Notwithstanding the foregoing provisions
of this paragraph, no mandatory repayments shall be required pursuant to this
Section 2.4A(ii) until the date on which the aggregate Net Cash Proceeds from
all Asset Sales not applied in
accordance with clauses (v), (w), (x), (y) or (z) of the preceding paragraph
within the time periods specified by this paragraph equal or exceed $20.0
million.
(b) NOTICE. The Company shall notify the
Agent of any prepayment to be made pursuant to this Section 2.4A(ii) at least
one Business Day prior to such prepayment date (unless shorter notice is
satisfactory to the Agent).
(c) PREPAYMENTS FROM NOTE OFFERING.
Promptly, but in any event within three Business Days, following the
consummation of any Note Offering, the Company shall repay all or a portion
of the principal amount of the Interim Loan and all other Obligations owing
hereunder or any other Loan Document in an amount equal to the lesser of
(i) the outstanding principal amount of the Interim Loan and all other
Obligations owing hereunder or any other Loan Document and (ii) the amount
of the net cash proceeds received by the Company from such Note Offering.
(iii) COMPANY'S MANDATORY PREPAYMENT OBLIGATION;
APPLICATION OF PREPAYMENTS. All prepayments shall include payment of accrued
interest (and Liquidated Damages, if any) on the principal amount so prepaid
and shall be applied to payment of interest before application to principal.
(iv) MANDATORY OFFER TO PURCHASE INTERIM NOTES. (a)
Upon the occurrence of a Change of Control (the date of such occurrence, the
"CHANGE OF CONTROL DATE"), the Lenders shall have the right to require the
repurchase of all of the Interim Notes pursuant to an offer to purchase (the
"CHANGE OF CONTROL OFFER") at a purchase price equal to 100% of the principal
amount thereof on the date of purchase, plus accrued and unpaid interest
thereon (including Liquidated Damages, if any) to the date of repurchase.
(b) Within 30 days following the Change of
Control Date the Company shall mail a notice to the Agent containing all
instructions and materials necessary to enable the Lenders to tender Interim
Notes pursuant to the Change of Control Offer and stating the following:
(1) that the Change of Control Offer
is being made pursuant to this Section 2.4A(iv) and
that all Interim Notes validly tendered will be
accepted for payment;
(2) the purchase price and the
purchase date, which shall be a Business Day that is
no earlier than 30 days nor later than 60 days from
the date such notice is mailed (the "OFFER PAYMENT
DATE");
(3) that any Note not tendered will
continue to accrue interest;
(4) that any Note accepted for
payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Offer Payment Date
unless the Company shall default in the payment of
the repurchase price of the Interim Notes;
(5) that if a Lender elects to have
a Interim Note purchased pursuant to the Change of
Control Offer it will be required to surrender the
Note, with the form entitled "Option of Lender to
Elect Purchase" on the reverse of the Note completed,
to the Company prior to 10:00 a.m. New York time on
the Offer Payment Date;
(6) that a Lender will be entitled
to withdraw its election if the Company receives, not
later than 9:00 a.m. New York time on the Business
Day preceding the Offer Payment Date, a telegram,
telex, facsimile transmission or letter setting forth
the principal amount of Interim Notes such Lender
delivered for purchase, and a statement that such
Lender is withdrawing its election to have such Note
purchased; and
(7) that if Interim Notes are
purchased only in part a new Note of the same type
will be issued in principal amount equal to the
unpurchased portion of the Interim Notes surrendered.
(c) On or before the Offer Payment Date, the
Company shall (i) accept for payment Interim Notes or portions thereof which
are to be purchased in accordance with the above, and (ii) deposit at the
Payment Office U.S. Legal Tender sufficient to pay the purchase price of all
Interim Notes to be purchased. The Agent shall promptly mail to the Lenders
whose Interim Notes are so accepted payment in an amount equal to the purchase
price.
(d) Notwithstanding anything to the contrary
set forth in this clause (iv), the Company will not be required to make a
Change of Control Offer upon the occurrence of a Change of Control if a third
party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this clause (iv).
B. MANNER AND TIME OF PAYMENT. All payments of principal and interest
(including Liquidated Damages) hereunder and under the Interim Notes by the
Company shall be made without defense, setoff or counterclaim and in same-day
funds and delivered to the Agent, unless otherwise specified, not later than
3:00 P.M. (New York time) on the date due at the Payment Office for the account
of the Lenders; funds received by the Agent after that time shall be deemed to
have been paid by the Company on the next succeeding Business Day. The foregoing
notwithstanding, the Company hereby is authorized to set off against any amount
due and payable to a Lender hereunder the amount of any claim arising under a
final non-appealable judgment that has been finally determined by a court of
competent jurisdiction to be payable by such Lender to the Company.
C. PAYMENTS ON NON-BUSINESS DAYS. Whenever any payment to be made
hereunder or under the Interim Notes shall be stated to be due on a day which is
not a Business Day, the 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 under the Interim Notes or of the commitment
and other fees hereunder, as the case may be.
D. NOTATION OF PAYMENT. Each Lender agrees that before disposing of any
Note held by it, or any part thereof (other than by granting participations
therein), such Lender will make a notation thereon of all principal payments
previously made thereon and of the date to which interest thereon has been paid,
which notation shall constitute prima facie evidence of the amounts of the
Obligations recorded; provided that the failure to make (or any error in the
making of) such a notation shall not limit or otherwise affect the obligation of
the Company hereunder or under such Interim Notes to pay the Obligations in
accordance with their terms.
2.5 USE OF PROCEEDS.
A. INTERIM LOAN. The proceeds of the Interim Loan shall be
applied by the Company, together with borrowings under the Credit Agreement, to
pay for the Acquisition and then to the payment of fees and expenses relating to
the Acquisition.
B. MARGIN REGULATIONS. No portion of the proceeds of any
borrowing under the Loan Documents shall be used by the Company in any manner
which might cause the borrowing or the application of such proceeds to violate
the applicable requirements of Regulation U, Regulation T or Regulation X of the
Board of Governors of the Federal Reserve System or any other regulation of the
Board of Governors or to violate the Exchange Act, in each case as in effect on
the date or dates of such borrowing and such use of proceeds.
SECTION 3 CONDITIONS
3.1 CONDITIONS TO INTERIM LOAN. The obligations of the Lenders to
make the Interim Loan are subject to prior or concurrent satisfaction of each
of the following conditions:
A. On or before the Closing Date, all corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental hereto and thereto not
previously found acceptable by the Agent shall be reasonably satisfactory in
form and substance to the Agent, and the Agent shall have received on behalf of
the Lenders the following items, each of which shall be in form and substance
reasonably satisfactory to the Agent and, unless otherwise noted, dated the
Closing Date:
(1) a copy of the Company's charter, certified as of
the Closing Date by one of its Officers, together with a certificate of status,
compliance, good standing or like certificate with respect to the Company
issued by the appropriate government officials of the jurisdiction of its
incorporation, each to be dated a recent date prior to the Closing Date;
(2) a copy of the Company's bylaws, certified as of
the Closing Date by one of its Officers;
(3) resolutions of the Company's Board of Directors
approving and authorizing the execution, delivery and performance of this
Agreement, each of the other Documents to which it is a party and any other
documents, instruments and certificates required to be executed by the Company
in connection herewith and therewith and approving and authorizing the
execution and delivery of the Documents and the consummation of the
Transactions, each certified as of the Closing Date by one of its Officers as
being in full force and effect without modification or amendment;
(4) executed copies of this Agreement and the
Interim Notes substantially in the form of Exhibit IV executed in accordance
with Section 2.1D drawn to the order of the Lenders and with appropriate
insertions;
(5) an originally executed Notice of Borrowing
substantially in the form of Exhibit I, signed by a duly authorized Officer of
the Company;
(6) an originally executed copy of the written
opinion of Mayer, Brown, Xxxx & Maw LLP, special counsel to the Company,
addressed to the Agent and each of the Lenders covering the matters set forth
in Exhibit V;
(7) (i) executed or conformed copies of the Credit
Agreement and all documents and instruments relating thereto and any amendments
thereto made on or prior to the Closing Date and a copy of each legal opinion
delivered in connection with the Credit Agreement, and the terms and
provisions of the Credit Agreement and all documents and instruments relating
thereto shall be reasonably satisfactory to the Agent and (ii) an Officers'
Certificate from the Company certifying that the Credit Agreement is in full
force and effect on the Closing Date; and
(8) true and correct copies of each consulting or
management advisory agreement executed by the Company in connection with the
consummation of the Transactions, each duly certified by the secretary or
assistant secretary of the Company as being a true, correct and complete copy
thereof.
B. Simultaneously with the making of the Interim Loan by the
Lenders, the Company shall have delivered to the Agent an Officers' Certificate
from the Company in form and substance satisfactory to the Agent to the effect
that (i) the representations and warranties in Section 4 are true, correct and
complete in all material respects on and as of the Closing Date to the same
extent as though made on and as of that date and (ii) on or prior to the Closing
Date, the Company has performed and complied with in all material respects all
covenants and conditions to be performed and observed by the Company hereunder
on or prior to the Closing Date (other than such conditions the satisfaction of
which is subject to the satisfaction of the Agent and/or the Majority Lenders).
C. No event shall have occurred and be continuing or would
result from the consummation of the borrowing contemplated by the Notice of
Borrowing which would constitute an Event of Default or Default.
D. The pro forma consolidated capital structure of the Company
and its Subsidiaries, after giving effect to the Transactions, shall be
consistent with the capital structure described on Schedule C.
E. There shall not have occurred since December 31, 2003 (and
the Lenders shall have become aware of no facts or conditions not previously
known to the Lenders) anything which the Lenders shall reasonably determine
could have a material adverse effect on the rights or remedies of the Lenders,
or on the ability of the Company to perform its obligations to the Lenders;
F. Simultaneously with the making of the Interim Loan by the
Lenders, the Acquisition shall have been consummated on the terms set forth in
the Acquisition Agreements; and the date that the Acquisition shall have been
consummated was no later than November 8, 2004.
G. The Company shall have received ratings with respect to the
high yield notes to be issued in the contemplated Note Offering of B- (or
better) from S&P or B3 (or better) from Xxxxx'x and such ratings shall remain in
full force and effect without having been downgraded.
H. An agreement among the Agent, the Company and the
Administrative Agent shall been executed and delivered by each party thereto and
otherwise be in full force and effect, such agreement to be in form, scope and
substance reasonably satisfactory to the Agent.
SECTION 4 REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Agreement and to make
the Interim Loan, the Company represents and warrants to the Lenders that, at
the time of execution hereof and after consummation of the Transactions, the
following statements are true, correct and complete:
4.1 COMPANY STATUS. The Company (i) is a duly organized and validly
existing company in good standing under the laws of the jurisdiction of its
organization, (ii) has the corporate power and authority to own its property and
assets and to transact the business in which it is engaged and presently
proposes to engage and (iii) is duly qualified and is authorized to do business
and is in good standing in each jurisdiction where the conduct of its business
requires such qualification except for failures to be so qualified which,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect.
4.2 COMPANY POWER AND AUTHORITY. The Company has the power and
authority to execute, deliver and perform the terms and provisions of each of
the Loan Documents to which it is a party and the Intercreditor Agreement and
has taken all necessary company action to authorize the execution, delivery and
performance by it of each of such Loan Documents and the Intercreditor
Agreement. The Company has duly executed and delivered each of the Loan
Documents to which it is a party and the Intercreditor Agreement, and each of
such Loan Documents and the Intercreditor Agreement constitutes the legal, valid
and binding obligation of such party enforceable in accordance with its terms,
except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws generally affecting creditors' rights and by
equitable principles (regardless of whether enforcement is sought in equity or
at law).
4.3 NO VIOLATION. Neither the execution, delivery or performance by the
Company of the Loan Documents to which it is a party, nor compliance by it with
the terms and provisions thereof, nor consummation of the transactions
contemplated therein (i) will contravene any material provision of any
applicable law, statute, rule or regulation or of any applicable order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will
conflict or be inconsistent with or result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default under, or result
in the creation or imposition of (or the obligation to
create or impose) any Lien (except pursuant to the Credit Agreement) upon any of
the material properties or assets of the Company pursuant to the terms of any
indenture, mortgage, deed of trust, credit agreement or loan agreement, or any
other material agreement, contract or instrument, to which the Company is a
party or by which it or any of its material property or assets is bound or to
which it may be subject, or (iii) will violate any provision of the certificate
of incorporation or by-laws (or equivalent organizational documents) of the
Company.
4.4 GOVERNMENTAL APPROVALS. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except as have been obtained or made prior to the date when required and which
remain in full force and effect), or exemption by, any governmental or public
body or authority, or any subdivision thereof, is required to authorize, or is
required in connection with, (i) the Company's execution, delivery and
performance of any Document or (ii) the legality, validity, binding effect or
enforceability of any such Document against the Company.
4.5 FINANCIAL STATEMENTS; FINANCIAL CONDITION; UNDISCLOSED
LIABILITIES; ETC.
(a) On and as of the Closing Date, after giving effect to the
Transactions (including the making of all transfers, whether absolute or
intended for security, and including the incurring of all of the indebtedness by
the Company as contemplated by the Transactions), the Company does not intend to
incur, and does not believe that it will incur, debts beyond its ability to pay
such debts as such debts mature; provided, however, that this Section 4.5(a)
shall not constitute any representation as to the amount of the assets or the
amount of the liabilities of the Company as of the Closing Date. As used in this
Section 4.5, the term "debt" means any liability on a claim, and "claim" means
(i) right to payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured, or unsecured or (ii) right to an
equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
(b) The Company is entering into the Transactions (including
the making of all transfers, whether absolute or intended for security, and
including the incurring of all of the indebtedness by the Company as
contemplated by the Transactions), in good faith and without the intent to
hinder, delay or defraud any creditor of the Company.
(c) Except as fully disclosed in writing to the Lenders prior
to the Closing Date or as otherwise disclosed on Schedule B hereto, there were
as of the Closing Date no liabilities or obligations with respect to the Company
(whether absolute, accrued, contingent or otherwise and whether or not due)
which, either individually or in aggregate, would be material to the Company or
to the Company and its Subsidiaries taken as a whole.
4.6 LITIGATION. There are no actions, suits or proceedings pending or,
to the best knowledge of the Company, threatened, against the Company on the
Closing Date (i) with respect to any Document or (ii) that could reasonably be
expected to have a Material Adverse Effect.
4.7 RESERVED
4.8 RESERVED
4.9 CAPITALIZATION. On the Closing Date and after giving effect to the
Transactions, the authorized capital stock of the Company shall consist of
200,000 shares of common stock, of which 100,000 are outstanding, and 500,000
shares of preferred stock, of which 200,000 shares have been designated Series A
12% Cumulative Senior Preferred Stock. All such outstanding shares of common
stock have been duly and validly issued, are fully paid and nonassessable and
are free of preemptive rights.
4.10 SUBSIDIARIES. As of the Closing Date and immediately after giving
effect to the Transactions, the Company has no Subsidiaries other than the
Purchased Entities.
4.11 COMPLIANCE WITH STATUTES, ETC. The Company is in compliance with
all applicable statutes, regulations and orders of, and all applicable
restrictions imposed by, all governmental bodies, domestic or foreign, in
respect of the conduct of its business and the ownership of its property, except
such noncompliances as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
4.12 INVESTMENT COMPANY ACT. The Company is not an "investment company"
or a company "controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended.
4.13 PUBLIC UTILITY HOLDING COMPANY ACT. The Company is not a "holding
company," or a "subsidiary company" of a "holding company," or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company" within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
4.14 INDEBTEDNESS. Schedule B sets forth a true and complete list of
all Indebtedness (exclusive of Indebtedness pursuant to (x) this Agreement and
(y) other Indebtedness in an aggregate principal amount not to exceed $100,000)
of the Company as of the Closing Date and which is to remain outstanding
immediately after giving effect to the Transactions and the incurrence of the
Interim Loan on such date, in each case showing the aggregate principal amount
thereof (and the aggregate amount of any undrawn commitments with respect
thereto) and the name of the respective borrower and any other entity which
directly or indirectly guaranteed such debt.
4.15 TRANSACTIONS. As of the Closing Date, all consents and approvals
of, and filings and registrations with, and all other actions in respect of, all
governmental agencies, authorities or instrumentalities required of the Company
in order to make or consummate the transactions contemplated by the Loan
Documents and the Credit Agreement will have been obtained, given, filed or
taken and are or will be in full force and effect (or effective judicial relief
with respect thereto has been obtained), except where the failure to so obtain,
give, file or take either would not have a Material Adverse Effect or resulted
from any action or inaction of the Purchased Entities prior to the consummation
of the Transactions. There does not exist any judgment, order or injunction
against the Company prohibiting the making of the Interim Loan hereunder or the
performance by the Company of its obligations under the Loan Documents and the
Credit
Agreement. All actions required to be taken by the Company pursuant to or in
furtherance of the transactions contemplated by the Loan Documents and the
Credit Agreement have been taken in material compliance with the Loan Documents
and Credit Agreement and all applicable laws.
4.16 INSURANCE. Set forth on Schedule D hereto is a true, correct and
complete summary of all material insurance carried by the Company on and as of
the Closing Date, with the amounts insured set forth therein.
4.17 NO DEFAULT. No event has occurred and is continuing which
constitutes a Default or an Event of Default.
4.18 COMPLIANCE WITH CONTRACTS, ETC. The Company is not (A) in
violation of its certificate of incorporation, bylaws or other organizational
documents or (B) in violation of any applicable law, ordinance, administrative
or governmental rule or regulation, or (C) in default (nor will an event occur
which with notice or passage of time or both would constitute such a default)
under or in violation of any indenture or loan or credit agreement or any other
material agreement or instrument to which it is a party or by which it or any of
its properties or assets may be bound or affected, except, with respect to
clauses (B) and (C), for such violations or defaults that would not, singly or
in the aggregate, have a Material Adverse Effect.
4.19 USE OF PROCEEDS; MARGIN STOCK, ETC. The proceeds of the Interim
Loan will be used solely for the purposes specified herein. Neither the making
of the Interim Loan nor the use of proceeds thereof will violate or be
inconsistent with the provisions of Regulation T, U or X, of the Board of
Governors of the Federal Reserve System.
4.20 SENIOR INDENTURE; ETC. The Company shall (to the extent such
documents are executed), on the date it executes and delivers the Senior
Indenture, the Registration Rights Agreement and the Exchange Notes, have the
full corporate power, authority and capacity to do so and to perform all of its
obligations to be performed thereunder; all corporate and other acts, conditions
and things required to be done and performed or to have occurred prior to such
execution and delivery to constitute them as valid and legally binding
obligations of the Company enforceable against the Company in accordance with
their respective terms except to the extent that the enforceability thereof may
be limited by applicable bankruptcy, insolvency, reorganization or similar laws
affecting the enforcement of creditors' rights generally or by general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), shall have been done and performed and shall
have occurred in due compliance with all applicable Laws; on the date, if any,
of such execution and delivery by the Company, the Senior Indenture, the
Registration Rights Agreement and the Exchange Notes shall constitute legal,
valid, binding and unconditional obligations of the Company enforceable against
the Company in accordance with their respective terms, except to the extent that
the enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting the enforcement of creditors' rights
generally or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
4.21 AFFILIATE TRANSACTIONS. Neither the Company nor any Subsidiary is
a party to any transaction with any Permitted Holder, or any officer or director
of any Permitted Holder, except as set forth on Schedule E.
4.22 NO PRIOR BUSINESS. The Company has not, at any time since its
formation, and, until the Closing Date, will not have (A) owned any assets or
property, (B) entered into any transaction (other than (i) the transactions
contemplated by, or required in connection with, the Transactions or (ii)
administrative transactions in connection with its formation and organization),
or (C) engaged in any business other than the negotiation of the transactions
contemplated by, or required in connection with, the Transactions.
SECTION 5 AFFIRMATIVE COVENANTS
The Company covenants and agrees that, until the Interim Loan and the
Interim Notes and all other amounts due under this Agreement have been
indefeasibly paid in full it shall perform all covenants in this Section 5
required to be performed by it:
5.1 FINANCIAL STATEMENTS AND OTHER REPORTS. The Company will furnish
to the Agent:
(a) FINANCIAL REPORTS. Whether or not required by the rules
and regulations of the Commission, so long as any Interim Notes are outstanding:
(1) all quarterly and annual financial information
that would be required to be contained in a filing with the Commission on
Forms 10-Q and 10-K if the Company were required to file such Forms, including
a "Management's Discussion and Analysis of Financial Condition and Results
of Operations" that describes the financial condition and results of operations
of the Company and its consolidated Subsidiaries and, with respect to the
annual information only, a report thereon by the Company's certified
independent accountants;
(2) all current reports that would be required to be
filed with the Commission on Form 8-K if the Company were required to file
such reports, in each case within the time periods specified in the Commission
rules and regulations; and
(3) in addition, following the consummation of the
Exchange Offer, whether or not required by the rules and regulations of the
SEC, the Company will file a copy of all such information and reports with the
Commission for public availability within the time periods specified in the
SEC's rules and regulations (unless the Commission will not accept such a
filing).
(b) OFFICER'S CERTIFICATES. At the time of the delivery of the
financial statements provided for in Section 5.01(a), a certificate in the form
of Exhibit VI of the Chief Executive Officer, President, Vice President or Chief
Financial Officer of the Company to the effect that, to the best of such
officer's knowledge, no Default or Event of Default has occurred and is
continuing or, if any Default or Event of Default has occurred and is
continuing, specifying the nature and extent thereof and the action which the
Company has taken, is taking, or proposes to take with respect to each such
condition or event.
(c) NOTICE OF DEFAULT. Promptly, and in any event within five
Business Days after an Authorized Officer of the Company obtains knowledge
thereof, notice of the occurrence of any event which constitutes a Default or
Event of Default.
(d) OTHER REPORTS AND FILINGS. Promptly, copies of all notices
of default in the observance or performance by the Company or any of its
Subsidiaries of any agreement or condition relating to any Indebtedness in a
principal amount equal to or exceeding $25,000,000 in the aggregate (other than
the Obligations) or contained in any instrument or agreement evidencing,
securing or relating thereto.
(e) OTHER INFORMATION. From time to time, such other
information or documents (financial or otherwise) with respect to the Company or
its Subsidiaries as the Agent may reasonably request in writing.
5.2 EXCHANGE OF INTERIM NOTES. On any date after the first anniversary
of the Closing Date, the Company shall, on the 15th Business Day following
receipt of (1) the written request (the "EXCHANGE REQUEST") of a holder of
Interim Notes requesting the exchange of Interim Notes for Exchange Notes and
(2) the written consent of the Majority Lenders consenting to such exchange:
(i) Execute and deliver and cause a bank or trust company
acting as trustee thereunder to execute and deliver, the Senior Indenture, if
such Senior Indenture has not previously been executed and delivered;
(ii) Execute and deliver to all of the holders or beneficial
owners in accordance with the Senior Indenture notes in the form attached to the
Senior Indenture (the "EXCHANGE NOTES") in exchange for all outstanding Interim
Notes dated the date of the issuance of such Exchange Notes, payable to the
order of such holder or owner, as the case may be, in the same principal amount
as such Interim Notes being exchanged;
(iii) Execute and deliver, to such holder or owner, as the
case may be, a Registration Rights Agreement in the form of Exhibit II, if such
Registration Rights Agreement has not previously been executed and delivered or,
if such Registration Rights Agreement has previously been executed and delivered
and such holder or owner is not already a party thereto, permit such holder or
owner to become a party thereto; and
(iv) Deliver to the trustee under the Indenture an opinion of
counsel, in form and substance reasonably satisfactory to the trustee (and
subject to customary exceptions and qualifications), with respect to the valid
existence of the Company, the power and authority thereof, the due execution and
delivery of each of the Senior Indenture, the Exchange Notes and the
Registration Rights Agreement, and the enforceability of each of the Senior
Indenture, the Exchange Notes and the Registration Rights Agreement against the
Company.
Interim Notes delivered to the Company under this Section 5.2 in
exchange for Exchange Notes shall be canceled by the Company and the
corresponding amount of the Interim Loan deemed repaid and the Exchange Notes
shall be governed by and construed in accordance with the terms of the Senior
Indenture.
The bank or trust company acting as trustee under the Senior Indenture
shall be selected by the Agent and shall at all times be a corporation organized
and doing business under the laws of the United States of America or the State
of New York, in good standing and having an office in the Borough of Manhattan,
in The City of New York, which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by Federal
or State authority; and, in connection with the foregoing, U.S. Bank, National
Association or The Bank of New York are approved by the Agent to be the trustee
under the Senior Indenture.
5.3 PAYMENTS IN U.S. DOLLARS. All payments of any Obligations to be
made hereunder or under the Interim Notes by the Company or any other obligor
with respect thereto shall be made solely in U.S. Legal Tender.
5.4 REGISTER. The Company hereby designates the Agent to serve as the
Company's agent, solely for purposes of this Section 5.4, to maintain a register
(the "REGISTER") on which they will record the Interim Loan made by each of the
Lenders and each repayment in respect of the principal amount of the Interim
Loan of each Lender. Failure to make any such recordation, or any error in such
recordation shall not affect the Company's obligations in respect of such
Interim Loan. With respect to any Lender, the transfer of the Interim Loan
Commitment of such Lender and the rights to the principal of, and interest on,
the Interim Loan made pursuant to such Interim Loan Commitment shall not be
effective until such transfer is recorded on the Register maintained by the
Agent with respect to ownership of such Interim Loan Commitment and Interim Loan
and prior to such recordation all amounts owing to the transferor with respect
to such Interim Loan Commitment and Interim Loan shall remain owing to the
transferor. The registration of assignment or transfer of all or part of any
Interim Loan Commitment and Interim Loan shall be recorded by the Agent on the
Register only upon the receipt by the Agent of a properly executed and delivered
assignment and assumption agreement pursuant to Section 10.2A. Coincident with
the delivery of such an assignment and assumption agreement to the Agent for
acceptance and registration of assignment or transfer of all or part of the
Interim Loan, or as soon thereafter as practicable, the assigning or transferor
Lender shall surrender the Interim Note evidencing such Interim Loan, and
thereupon one or more new Interim Notes of the same type and in the same
aggregate principal amount shall be issued to the assigning or transferor Lender
and/or the new Lender.
SECTION 6 NEGATIVE COVENANTS
The Company covenants and agrees that until the satisfaction in full of
the Interim Loan and the Interim Notes and all other Obligations due under this
Agreement it will fully and timely perform all covenants in this Section 6.
6.1 LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS. The Company
will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, assume, guarantee, acquire, become liable,
contingently or otherwise, with respect to, or otherwise become responsible for
payment of (collectively, "incur") any Indebtedness other than Permitted
Indebtedness. Notwithstanding the foregoing, the Company and its Restricted
Subsidiaries may incur Indebtedness (including Acquired Indebtedness) if on the
date of (after giving effect to) the incurrence of such Indebtedness, the
Consolidated Fixed Charge Coverage Ratio of the Company will be at least 2.0
to 1.0.
6.2 LIMITATION ON LIENS. The Company will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume
or otherwise cause or suffer to exist any Liens (other than Permitted Liens) of
any kind against or upon any property or assets of the Company or any of its
Restricted Subsidiaries whether owned on the Closing Date or acquired after the
Closing Date, or any proceeds therefrom, unless all payments due under this
Agreement and the Interim Notes are secured on an equal and ratable basis with
the Indebtedness so secured until such time as such Indebtedness is no longer
secured by a Lien. If such Indebtedness is by its terms expressly subordinated
to the Interim Notes, the Lien securing such Indebtedness shall be subordinate
and junior to the Lien securing the Interim Notes with the same relative
priority as such subordinate or junior Indebtedness shall have with respect to
the Interim Notes.
6.3 LIMITATION ON RESTRICTED PAYMENTS. (a) The Company will not, and
will not cause or permit any of its Restricted Subsidiaries to, directly or
indirectly:
(1) declare or pay any dividend or make any distribution
(other than dividends or distributions payable (i) in Qualified Capital Stock of
the Company, (ii) to the Company or a Restricted Subsidiary or (iii) by a
Subsidiary that is not a Wholly-Owned Restricted Subsidiary on a pro rata basis
to the holders of its equity interests, but only if the holders include the
Company, a Wholly-Owned Restricted Subsidiary or a Person who is not otherwise
an Affiliate of the Company);
(2) purchase, redeem or otherwise acquire or retire for value
any Capital Stock of the Company, or any Restricted Subsidiary or Affiliate of
the Company (other than any such Capital Stock owned by the Company or any
Wholly-Owned Restricted Subsidiary);
(3) make any principal payment on, purchase, defease, redeem,
prepay, decrease or otherwise acquire or retire for value, prior to any
scheduled final maturity, scheduled repayment or scheduled sinking fund payment,
any Indebtedness of the Company that is subordinate or junior in right of
payment to the Interim Notes; or
(4) make any Investment (other than Permitted Investments);
(each of the foregoing actions set forth in clauses (1), (2),
(3) and (4) being referred to as a "RESTRICTED PAYMENT"), if at the time of such
Restricted Payment or immediately after giving effect thereto:
(i) a Default or an Event of Default shall have occurred and
be continuing;
(ii) the Company is not permitted to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to Section
6.1; or
(iii) the aggregate amount of Restricted Payments (including
such proposed Restricted Payment) made subsequent to the Closing Date (the
amount expended for such purposes, if other than in cash, being the Fair Market
Value of such property at the time of the making thereof) shall exceed the sum
of:
(A) 50% of the cumulative Consolidated Net Income (or
if cumulative Consolidated Net Income is a loss, minus 100% of such loss) of
the Company during the period beginning on the first day of the first fiscal
quarter after the Closing Date and ending on the last day of the Company's
most recent fiscal quarter ending prior to the date of such Restricted Payment
for which financial statements are available (the "REFERENCE DATE") (treating
such period as a single accounting period); plus
(B) (i) 100% of the aggregate net cash proceeds and
the Fair Market Value of other assets (other than Indebtedness of any Person
that, upon its transfer to the Company, would not constitute Cash Equivalents)
received by the Company from any Person (other than a Subsidiary of the
Company) from the issuance and sale subsequent to the Closing Date and on or
prior to the Reference Date of Qualified Capital Stock of the Company and
(ii) 100% of any cash and the Fair Market Value of other assets (other than
Indebtedness of any Person that, upon its contribution to the Company, would
not constitute Cash Equivalents) received by the Company from its shareholders
as a capital contribution after the Closing Date; plus
(C) 100% of the aggregate net cash proceeds received
from the issuance of Indebtedness or shares of Disqualified Capital Stock of
the Company (other than to a Restricted Subsidiary of the Company) that have
been converted into or exchanged for Qualified Capital Stock of the Company
subsequent to the Closing Date and on or prior to the Reference Date; plus
(D) the net reduction in the Investments (other than
Permitted Investments) made by the Company or any Restricted Subsidiary in any
Person (other than a Restricted Subsidiary) to the extent such reduction
results from net proceeds received by the Company and its Restricted
Subsidiaries upon the (x) repurchase, repayment or redemption of such
Investments by such Person (but only to the extent constituting return of
capital), or (y) sale of such Investment, in each case, in an amount not
exceeding the aggregate amount of such Investments; plus
(E) the Company's or any Restricted Subsidiary's
portion (proportionate to the Company's or such Restricted Subsidiary's equity
interest in such Subsidiary) of the fair market value of the net assets of any
Unrestricted Subsidiary at the time such Unrestricted Subsidiary is designated
a Restricted Subsidiary in an amount not to exceed the amount of Investments
(excluding Permitted Investments) previously made (and treated as a Restricted
Payment) by the Company or any of its Restricted Subsidiaries in such
Unrestricted Subsidiary.
In the case of clause (iii)(B) above, any net cash proceeds
from issuances and sales of Qualified Capital Stock of the Company financed
directly or indirectly using funds borrowed from the Company or any Subsidiary
of the Company, shall be excluded until and to the extent such borrowing is
repaid.
(b) The provisions set forth in the immediately preceding
clause (a) do not prohibit:
(1) the payment of any dividend or other distribution or
redemption within 60 days after the date of declaration of such dividend or call
for redemption if such payment would have been permitted on the date of
declaration or call for redemption;
(2) the acquisition of any shares of Qualified Capital Stock
of the Company, solely in exchange for other shares of Qualified Capital Stock
of the Company;
(3) the acquisition of any Indebtedness of the Company that is
subordinate or junior in right of payment to the Interim Notes either (i) solely
in exchange for shares of Qualified Capital Stock of the Company, or (ii)
through the application of net proceeds of a sale for cash (other than to a
Restricted Subsidiary of the Company) within 60 days after such sale, if no
Default or Event of Default would exist after giving effect thereto, of
Refinancing Indebtedness;
(4) an Investment either (i) solely in exchange for shares of
Qualified Capital Stock of the Company or (ii) through the application of the
net proceeds of a sale for cash (other than to a Subsidiary of the Company) of
shares of Qualified Capital Stock of the Company within 60 days after such sale;
(5) in the event of a Change of Control, and if no Default
shall have occurred and be continuing or would exist after giving effect, the
payment, purchase, redemption, defeasance or other acquisition or retirement of
Indebtedness that is subordinated to the Interim Notes, in each case, at a
purchase price not greater than 101% of the principal amount of such
Indebtedness (or, if such Indebtedness was issued with original issue discount,
101% of the accreted value), plus any accrued and unpaid interest thereon;
provided, that prior to such payment, purchase, redemption, defeasance or other
acquisition or retirement, the Company has made a Change of Control Offer with
respect to the Interim Notes as a result of such Change of Control and has
repurchased all Interim Notes validly tendered and not withdrawn in connection
with such Change of Control Offer;
(6) payments or distributions to dissenting stockholders of
Capital Stock of the Company pursuant to applicable law, pursuant to or in
connection with a consolidation, merger or transfer of assets that complies with
the provisions of this Agreement applicable to mergers, consolidations and
transfers of all or substantially all of the property and assets of the Company
or any of its Restricted Subsidiaries;
(7) payments, advances or dividends to any direct or indirect
parent entity of the Company to be used by such entity solely to pay its
franchise taxes and reasonable directors' fees and other fees and expenses owing
by it in the ordinary course of business; provided, that such advances are in an
aggregate amount not to exceed $2.0 million in any fiscal year, and actually
used by such entity to pay such taxes, fees and expenses;
(8) the application of the proceeds from the issuance of the
Interim Notes, borrowings under the Credit Agreement and sales of the Company's
Capital Stock on the Closing Date as described on Schedule F;
(9) the purchase, repurchase, retirement, redemption or other
acquisition of shares of Capital Stock of the Company, any of its Subsidiaries
or any direct or indirect parent of
the Company from employees, former employees, directors, former directors or
consultants of the Company, any of its Subsidiaries or any direct or indirect
parent entity of the Company (or permitted transferees of such employees, former
employees, directors or former directors), pursuant to the terms of the
agreements (including employment agreements) or plans (or amendments thereto)
approved by the Board of Directors of the Company or of any direct or indirect
parent of the Company under which such individuals purchase or sell or are
granted the option to purchase or sell, shares of such Capital Stock; provided,
that the aggregate amount of such repurchases and other acquisitions in any
calendar year shall not exceed the lesser of (i) the sum of (x) $5 million and
(y) the aggregate amount of Restricted Payments permitted (but not made)
pursuant to this clause (10) in prior calendar years and (ii) $10.0 million;
provided further, that such amount in any calendar year may be increased by an
amount not to exceed the net cash proceeds of key man life insurance policies
received by the Company after the Closing Date;
(10) repurchases of Capital Stock deemed to occur upon
exercise of stock options, warrants or other similar rights if such Capital
Stock represents a portion of the exercise price of such options, warrants or
other similar rights;
(11) cash payments in lieu of the issuance of fractional
shares in connection with the exercise of warrants, options or other securities
convertible into or exchangeable for Qualified Capital Stock of the Company;
provided, that any such cash payment shall not be for the purpose of evading the
limitations imposed by this Section 6.3 (as determined in good faith by the
Board of Directors of the Company);
(12) if no Default or Event of Default has occurred and is
continuing or would exist after giving effect thereto, the payment of the
Management Fee; provided, that the aggregate amount of such management fee in
any calendar year shall not exceed the greater of (i) $5.0 million or (ii) 2.5%
of Consolidated EBITDA of the Company;
(13) Restricted Payments made to effect a Qualified Containers
Transaction, other than a Restricted Payment made by the Company;
(14) any Restricted Payment made out of the net cash proceeds
or the Fair Market Value of other assets received by the Company from any Person
(other than a Subsidiary of the Company) from the substantially concurrent sale
of, or made by exchange for, Qualified Capital Stock of the Company or a
substantially concurrent capital contribution received by Company from its
stockholders;
(15) if no Default or Event of Default shall have occurred and
be continuing or would exist after giving effect thereto, other Restricted
Payments not to exceed $25.0 million in the aggregate following the Closing
Date; and
(16) the payment of dividends on Disqualified Capital Stock
not issued in violation of Section 6.1 (provided, that the amount of any such
dividends during any period shall be included in the calculation of Consolidated
Interest Expense for such period for the purposes of determining the Company's
compliance with Section 6.1).
In determining the aggregate amount of Restricted Payments
made subsequent to the Closing Date in accordance with the preceding clause
(a)(iii) amounts expended pursuant to clauses (1), (4)(ii), (5), (9), (14) and
(15) shall be included in such calculation.
6.4 SENIOR DEBT AMENDMENTS.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, without the prior written consent of the Agent, enter into any
amendment which is adverse to the Agent or the Lenders of (or permit any
agreement in respect of debt that Refinances the debt incurred pursuant to the
Credit Agreement to become effective the effect of which would impose on the
Company terms that if implemented pursuant to an amendment to the Credit
Agreement would be prohibited by this Section) any term of the Credit Agreement
consisting of or relating to (i) clause (iv) of the definition of "Permitted
Dividend," (ii) interest rates, fees, and aggregate principal amount of loans to
be outstanding, in each case in excess of the amounts contemplated by the
definition of "Senior Debt" in the Intercreditor Agreement, (iii) the relative
payment priority of the "IO Distributable Amount", (iv) the definition of "Legal
Final Payment Date", (v) the defined terms "Designated Event of Default" and "IO
Distributable Amount", (vi) the relative payment priority of the "IO
Distributable Amount" and (vii) Section 3.6(b) of the Credit Agreement.
6.5 MERGER, CONSOLIDATION AND SALE OF ASSETS. Except in connection with
any Qualified Container Transaction or any leases of Containers by the
Restricted Subsidiaries in the ordinary course of business, the Company will
not, in a single transaction or series of related transactions, consolidate or
merge with or into any Person, or sell, assign, transfer, lease, convey or
otherwise dispose of (or cause or permit any Restricted Subsidiary to sell,
assign, transfer, lease, convey or otherwise dispose of) all or substantially
all of the Company's assets (determined on a consolidated basis for the Company
and its Restricted Subsidiaries) whether as an entirety or substantially as an
entirety to any Person unless:
(1) either:
(a) the Company shall be the surviving or continuing
corporation; or
(b) the Person (if other than the Company) formed by
such consolidation or into which the Company is merged or the Person which
acquires by sale, assignment, transfer, lease, conveyance or other disposition
the properties and assets of the Company and of the Company's Restricted
Subsidiaries substantially as an entirety (the "SURVIVING ENTITY"):
(x) shall be an entity organized and validly
existing under the laws of the United States or any State thereof or the
District of Columbia; and
(y) shall expressly assume, by supplemental
agreement (in form and substance reasonably satisfactory to the Agent),
executed and delivered to the Agent, the due and punctual payment of the
principal of, and premium, if any, interest and Liquidated Damages, if any, on
all of the Interim Notes and the performance of every covenant of the Interim
Notes, this Agreement, and the Registration Rights Agreement on the part of
the Company to be performed or observed thereunder;
(2) immediately after giving effect to such transaction and
the assumption contemplated by clause (1)(b)(y) above (including giving effect
to any Indebtedness and Acquired Indebtedness incurred or anticipated to be
incurred in connection with or in respect of such transaction);
(a) the Company is able to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) in compliance with
Section 6.1; and
(b) no Default or Event of Default shall have
occurred or be continuing.
This covenant will not apply to (1) a merger of the Company with an
affiliate solely for the purpose of reincorporating the Company in another
jurisdiction; or (2) any consolidation or merger, or any sale, assignment,
transfer, conveyance, lease or other disposition of assets among the Restricted
Subsidiaries of the Company.
For purposes of the foregoing, the transfer (by lease, assignment, sale
or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries of the Company the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
Upon any consolidation, combination or merger or any transfer of all or
substantially all of the assets of the Company in accordance with the foregoing,
in which the Company is not surviving or the continuing corporation, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, lease or transfer is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Agreement and the Interim Notes with the same effect as if such
surviving entity had been named as such.
6.6 LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
RESTRICTED SUBSIDIARIES. The Company will not, and will not cause or permit any
of its Restricted Subsidiaries to, directly or indirectly, create or otherwise
cause or permit to exist or become effective any encumbrance or restriction on
the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on or in
respect of its Capital Stock;
(2) make loans or advances or to pay any Indebtedness or other
obligation owed to the Company or any other Restricted Subsidiary; or
(3) transfer any of its property or assets to the Company or
any other Restricted Subsidiary;
except for such encumbrances or restrictions existing under or by
reason of:
(a) applicable law, rule, regulation or order;
(b) this Agreement;
(c) customary non-assignment provisions of any
contract, license or lease of any Restricted Subsidiary to the extent such
provisions restrict the transfer of the lease or the property leased thereunder;
(d) any instrument governing Acquired Indebtedness,
which encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person or the properties
or assets of the Person so acquired;
(e) the Credit Agreement;
(f) any encumbrance or restriction on a Qualified
Container Subsidiary under any agreement entered into in connection with any
Qualified Containers Transaction or any related Qualified Containers
Indebtedness;
(g) any encumbrance or restriction pursuant to an
agreement in effect or entered into on the Closing Date (and all replacements
or substitutions thereof on terms not materially more adverse to the Lenders
and not materially less favorable or materially more onerous to the Company
and its Restricted Subsidiaries than those contained in the Existing
Indebtedness on the Closing Date)
(h) restrictions on the transfer of assets subject to
any Permitted Lien;
(i) customary agreements (i) to sell assets or
Capital Stock permitted under this Agreement pending the closing of such sale
or (ii) relating to the transfer of, or in licenses related to, copyrights,
patents or other intellectual property;
(j) provisions in joint venture agreements and other
similar agreements (in each case relating solely to the respective joint
venture or similar entity or the equity interests therein);
(k) Purchase Money Indebtedness or Capitalized Lease
Obligations permitted under this Agreement; provided, that such encumbrances
and restrictions relate only to the assets financed with such Indebtedness;
(l) restrictions on cash or other deposits under bona
fide arrangements with customers entered into in the ordinary course of
business;
(m) Indebtedness of any Foreign Subsidiary permitted
under this Agreement;
(n) Refinancing Indebtedness; provided that the
restrictions contained in the agreements governing such Refinancing
Indebtedness are not materially more restrictive, taken as a whole, than those
contained in the agreements governing the Indebtedness being refinanced;
(o) agreements or instruments that prohibit the
payment of dividends or the making of other distributions with respect to
Capital Stock other than on a pro rata basis; and
(p) with respect to any Restricted Subsidiary (other
than a Foreign Subsidiary), any encumbrance or restriction contained in the
terms of any Indebtedness, or any agreement pursuant to which such Indebtedness
was issued, if (1) the encumbrance or restriction applies only in the event
of a payment default or a default with respect to a financial covenant
contained in such Indebtedness or agreement, (2) the encumbrance or restriction
is not materially more disadvantageous to the Lenders than is customary in
comparable financings and (3) such encumbrance or restriction will not
materially affect the Company's ability to make principal or interest payments
on the Interim Notes.
6.7 LIMITATIONS ON TRANSACTIONS WITH AFFILIATES. The Company will not,
and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, enter into or permit to exist any transaction or series of related
transactions (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with, or for the
benefit of, any of its Affiliates (each, an "AFFILIATE Transaction"), other than
(i) Permitted Affiliate Transactions, and
(ii) Affiliate Transactions on terms that are no less
favorable than those that might reasonably have been obtained in a comparable
transaction at such time on an arm's-length basis from a Person that is not an
Affiliate of the Company or such Restricted Subsidiary.
With respect to all Affiliate Transactions (other than Permitted
Affiliate Transactions):
(i) if such Affiliate Transaction involves aggregate payments
or other property with a Fair Market Value in excess of $10.0 million it will be
approved by a majority of the members of the Board of Directors of the Company
(including a majority of the disinterested members thereof), such approval to be
evidenced by a Board Resolution stating that such Board of Directors has
determined that such transaction complies with the foregoing provisions; and
(ii) if such Affiliate Transaction involves an aggregate Fair
Market Value of more than $25.0 million, the Company will, prior to the
consummation thereof, obtain a favorable opinion as to the fairness of the
financial terms of such transaction or series of related transactions to the
Company or the relevant Restricted Subsidiary, as the case may be, from an
Independent Financial Advisor and file the same with the Agent.
The restrictions set forth in this covenant shall not apply to the
following transactions (collectively, "PERMITTED AFFILIATE TRANSACTIONS"):
(1) reasonable fees and compensation paid to, and indemnity
provided on behalf of, officers, directors, employees or consultants of the
Company or any Restricted Subsidiary;
(2) transactions exclusively between or among the Company and
any of its Wholly-Owned Restricted Subsidiaries or exclusively between or among
Wholly-Owned Restricted Subsidiaries;
(3) any agreement as in effect as of the Closing Date or any
transaction contemplated thereby and any amendment thereto or any replacement
agreement thereto, so long as any such amendment or replacement agreement is not
more disadvantageous to the Lenders, the Company or the Restricted Subsidiaries
in any material respect than the original agreement as in effect on the Closing
Date;
(4) Restricted Payments permitted by this Agreement (except
for Restricted Payments described in Section 6.3(b)(16)) or Permitted
Investments;
(5) any merger or other transaction with an Affiliate solely
for the purpose of reincorporating the Company in another jurisdiction or
creating a holding company of the Company;
(6) any reasonable employment, stock option, stock repurchase,
employee benefit compensation, business expense reimbursement, severance,
termination or other employment-related agreements, arrangements or plans
entered into in good faith by the Company or any of its Restricted Subsidiaries
in the ordinary course of business;
(7) any loans or advances to employees in the ordinary course
of business in accordance with the past practices of the Company or the
Restricted Subsidiaries; and
(8) any issuance of Qualified Capital Stock of the Company.
6.8 CONDUCT OF BUSINESS. The Company will not, and will not permit any
of its Restricted Subsidiaries to, engage in any businesses other than Permitted
Businesses except to such extent as would not be material to the Company and its
Restricted Subsidiaries taken as a whole.
6.9 RESERVED.
6.10 LIMITATION ON ASSET SALES. The Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly,
consummate any Asset Sale unless:
(1) the Company or the applicable Restricted Subsidiary, as
the case may be, receives consideration at the time of such Asset Sale at least
equal to the Fair Market Value of the assets sold or otherwise disposed;
(2) at least 75% of the consideration received by the Company
or the Restricted Subsidiary, as the case may be, from such Asset Sale is in the
form of cash or Cash Equivalents received at the time of such disposition;
provided that the amount of any liabilities (as shown on the most recent
applicable balance sheet) of the Company or such Restricted Subsidiary (other
than liabilities that are by their terms subordinated to the Interim Notes) that
are assumed by the transferee of any such assets shall be deemed to be cash for
purposes of this
provision if the documents governing such liabilities provide that there is no
further recourse to the Company or any of its Subsidiaries with respect to such
liabilities; and
(3) all of the Net Cash Proceeds in respect thereof are
applied by the Company or a Restricted Subsidiary of the Company in accordance
with Section 2.4A(ii)(a).
In the event of the transfer of substantially all (but not
all) of the property and assets of the Company and its Restricted Subsidiaries
as an entirety to a Person in a transaction permitted under Section 6.5 that
does not constitute a Change of Control, the successor entity shall be deemed to
have sold the properties and assets of the Company and its Restricted
Subsidiaries not so transferred for purposes of this Section 6.9, and shall
comply with the provisions of this 6.9 and Section 2.4A(ii)(a) with respect to
such deemed sale as if it constituted an Asset Sale. The Fair Market Value of
such properties and assets of the Company or its Restricted Subsidiaries deemed
to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section
6.9 and Section 2.4A(ii)(a).
SECTION 7 EVENTS OF DEFAULT
If any of the following conditions or events ("EVENTS OF DEFAULT")
shall occur and be continuing:
7.1 FAILURE TO MAKE PAYMENTS (OTHER THAN PRINCIPAL) WHEN DUE. The
failure to pay interest and Liquidated Damages, if any, on any Interim Notes or
any other amount (other than principal for the Interim Notes) when the same
becomes due and payable and the default continues for a period of 30 days;
7.2 FAILURE TO MAKE PRINCIPAL PAYMENTS WHEN DUE. The failure to pay the
principal of or premium, if any, on any Interim Notes, when such principal
becomes due and payable, at maturity, upon redemption or otherwise (including
the failure to make an Asset Sale Prepayment or a payment to purchase Interim
Notes tendered pursuant to a Change of Control Offer, in each case when such
payments are due, or the failure to repay the principal outstanding with respect
to the Interim Notes upon the consummation of a Note Offering);
7.3 OTHER DEFAULTS UNDER AGREEMENT OR LOAN DOCUMENTS. A default in the
observance or performance of any other covenant or agreement contained in this
Agreement or any other Loan Document (other than the payment of the principal
of, or premium, if any, or interest or and Liquidated Damages, if any, on any
Interim Note) which default continues for a period of 30 days after the Company
receives written notice specifying the default (and demanding that such default
be remedied) from the Agent or the Lenders of at least 25% of the outstanding
principal amount of the Interim Notes (except in the case of a default with
respect to Section 6.5, which will constitute an Event of Default with such
notice requirement but without such passage of time requirement);
7.4 DEFAULT IN OTHER AGREEMENTS. The failure to pay at final maturity
(giving effect to any applicable grace periods and any extensions thereof) the
principal amount of any Indebtedness of the Company or any Restricted
Subsidiary, or the acceleration of the final stated maturity of any such
Indebtedness (which acceleration is not rescinded, annulled or otherwise cured
within 30 days from the date of acceleration) if the aggregate principal amount
of such
Indebtedness, together with the principal amount of any other such Indebtedness
in default for failure to pay principal at final maturity or which has been
accelerated (in each case with respect to which the 30-day period described
above has elapsed), aggregates $25.0 million or more at any time;
7.5 JUDGMENTS AND ATTACHMENTS. One or more judgments in an aggregate
amount in excess of $25.0 million shall have been rendered against the Company
or any of its Restricted Subsidiaries (other than any judgment as to which a
reputable and solvent third party insurer has accepted full coverage) and such
judgments remain undischarged, unpaid or unstayed for a period of 60 days after
such judgment or judgments become final and non-appealable;
7.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF CUSTODIAN, ETC. A court of
competent jurisdiction enters a Bankruptcy Order under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case or proceeding, or
(B) appoints a Custodian of the Company or any Significant
Subsidiary for all or substantially all of its properties, or
(C) orders the liquidation of the Company or any Significant
Subsidiary;
and in each case the Bankruptcy Order remains unstayed and in effect for 60
consecutive days.
7.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF CUSTODIAN, ETC. The Company
or any Significant Subsidiary pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case or proceeding, or
(B) consents to the entry of a Bankruptcy Order for relief
against it in an involuntary case or proceeding, or
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors or files a proposal or scheme of arrangement involving the
rescheduling or composition of its indebtedness, or
(E) consents to the filing of a petition in bankruptcy against
it.
7.8 BREACH OF WARRANTY. Any representation or warranty made by the
Company pursuant to this Agreement shall be false or incorrect in any material
respect on the date as of which made or deemed made;
THEN (i) upon the occurrence and during the continuation of any Event
of Default described in the foregoing Section 7.6 or 7.7 with respect to the
Company, all of the unpaid principal amount of and accrued interest on the
Interim Loan and all other outstanding
Obligations shall automatically become immediately due and payable, without
presentment, demand, protest or other requirements of any kind, all of which are
hereby expressly waived by the Company, and the commitments of the Lenders
hereunder shall thereupon terminate, and (ii) upon the occurrence and during the
continuation of any Event of Default not referred to in clause (i), the Agent
shall, upon written notice of the holder or holders of at least 25% in aggregate
principal amount of the Interim Loan then outstanding, by written notice to the
Company and the agent under the Credit Agreement specifying the respective Event
of Default and that it is a "notice of acceleration" (the "ACCELERATION
NOTICE"), declare all of the unpaid principal amount of and accrued interest on
the Interim Loan and all other outstanding Obligations to be, and the same (x)
shall forthwith become, due and payable, or (y) if there are any amounts
outstanding under the Credit Agreement, shall become immediately due and payable
upon the first to occur of an acceleration under the Credit Agreement or five
business days after receipt by the Company and the agent under the Credit
Agreement of such Acceleration Notice but only if such Event of Default is then
continuing, and the obligations of the Lenders hereunder shall thereupon
terminate. Nevertheless, if at any time after acceleration of the maturity of
the Interim Loan, the Company shall pay all arrears of interest and all payments
on account of the principal thereof which shall have become due otherwise than
by acceleration (with interest on principal and, to the extent permitted by law,
on overdue interest, at the rates specified in this Agreement or the Interim
Notes) and all Defaults and Events of Default (other than non-payment of
principal of and accrued interest on the Interim Loan and the Interim Notes due
and payable solely by virtue of acceleration) shall be remedied or waived
pursuant to Section 10.6, then the Agent shall, upon written notice of the
holders of at least a majority in aggregate principal amount of the Interim Loan
then outstanding, by written notice to the Company rescind and annul the
acceleration and its consequences; but such action shall not affect any
subsequent Event of Default or Default or impair any right consequent thereon.
Holders of not less than a majority in aggregate principal amount of
the then outstanding Interim Notes by notice to the Agent may on behalf of the
holders of all of the Interim Notes waive an existing Default or Event of
Default and its consequences hereunder, except a continuing Default or Event of
Default in the payment of the principal or interest on the Interim Notes or that
relates to any covenant or provision which cannot be modified or amended without
the consent of each holder of an Interim Note; provided, however, that the
holders of a majority in aggregate principal amount of the then outstanding
Interim Notes may rescind an acceleration and its consequences, including any
related payment default that resulted from such acceleration if (a) the
rescission would not conflict with any judgment or decree, (b) all existing
Events of Default have been cured or waived except nonpayment of principal or
interest that has become due solely because of the acceleration, (c) to the
extent the payment of such interest is lawful, interest on overdue installments
of interest and overdue principal, which has become due otherwise than by such
declaration of acceleration, has been paid and (d) the Agent and Lenders have
been reimbursed for all reasonable fees and expenses in accordance with the
terms of this Agreement. Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Agreement; but no such waiver shall extend to
any subsequent or other Default or impair any right consequent thereon.
SECTION 8 [INTENTIONALLY OMITTED]
SECTION 9 THE AGENT
9.1 APPOINTMENT. Each Lender hereby irrevocably designates and appoints
Transamerica Accounts Holding Corporation as its Agent to act as specified
herein and in the other Loan Documents, and each Lender hereby irrevocably
authorizes Transamerica Accounts Holding Corporation as the Agent to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
The Agent agrees to act as such upon the express conditions contained in this
Section 9. Notwithstanding any provision to the contrary elsewhere in this
Agreement or in any other Loan Document, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein or in the other Loan
Documents, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Agent. The provisions
of this Section 9 are solely for the benefit of the Agent and the Lenders, and
neither the Company nor any of its Subsidiaries shall have any rights as a third
party beneficiary of any of the provisions hereof. In performing its functions
and duties under this Agreement, the Agent shall act solely as agent of the
Lenders and the Agent does not assume and shall not be deemed to have assumed
any obligation or relationship of agent or trust with or for the Company or any
of its Subsidiaries.
9.2 DELEGATION OF DUTIES. The Agent may execute any of its duties under
this Agreement or any other Loan Document by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by them
with reasonable care except to the extent otherwise required by Section 9.3.
9.3 EXCULPATORY PROVISIONS. Neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by them or such
Person under or in connection with this Agreement or the other Loan Documents
(except for their or such Person's own gross negligence or willful misconduct)
or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by the Company, any of its
Subsidiaries or any of their respective officers contained in this Agreement,
any other Loan Documents, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent under or in
connection with, this Agreement or any other Loan Document or for any failure of
the Company, any of its Subsidiaries or any of their respective officers to
perform its obligations hereunder or thereunder. The Agent shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or the other Loan Documents, or to inspect the properties, books or
records of the Company or any of its Subsidiaries. The Agent shall not be
responsible to any Lender for the effectiveness, genuineness, validity,
enforceability, collectability or sufficiency of this Agreement or any other
Loan Document or for any representations, warranties, recitals or statements
made herein or therein or made in any written or oral statement or in any
financial or other statements, instruments, reports, certificates or any other
documents in connection herewith
or therewith furnished or made by the Agent to the Lenders or by or on behalf of
the Company or any of its Subsidiaries to the Agent or any Lender or be required
to ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained herein or therein or
as to the use of the proceeds of the Interim Loan or of the existence or
possible existence of any Default or Event of Default.
9.4 RELIANCE BY AGENT. The Agent shall be entitled to rely, and shall
be fully protected in relying, upon any note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, facsimile, telex
or teletype message, statement, order or other document or conversation believed
by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons, and upon advice and statements of legal counsel
(including, without limitation, counsel to the Company or any of its
Subsidiaries), independent accountants and other experts selected by the Agent.
The Agent shall be fully justified in failing or refusing to take any action
under this Agreement or any other Loan Document unless it shall first receive
such advice or concurrence of the Majority Lenders as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. As between the Agent and the Lenders, the
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Loan Documents in accordance with a
request of the Majority Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all of the Lenders.
9.5 NOTICE OF DEFAULT. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default hereunder unless
the Agent has actually received notice from the Lender or the Company referring
to this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default." In the event that the Agent receives such
a notice, the Agent shall give prompt notice thereof to the Lenders. The Agent
shall take such action with respect to such Default or Event of Default as shall
be reasonably directed by Lenders holding in the aggregate more than 50% of the
outstanding principal amount of Interim Notes; provided that, as between the
Agent and the Lenders unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.
9.6 NON-RELIANCE ON AGENT. Each Lender expressly acknowledges that
neither the Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates have made any representations or warranties to
it and that no act by the Agent hereinafter taken, including any review of the
affairs of the Company or any of its Subsidiaries, shall be deemed to constitute
any representation or warranty by the Agent to any Lender. Each Lender
represents to the Agent that it has, independently and without reliance upon the
Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, assets, operations, property, financial and other condition, prospects
and creditworthiness of the Company and its Subsidiaries and made its own
decision to make the Interim Loan hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon the
Agent or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this
Agreement, and to make such investigation as it deems necessary to inform itself
as to the business, assets, operations, property, financial and other condition,
prospects and creditworthiness of the Company and its Subsidiaries. The Agent
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, operations, assets, property,
financial and other condition, prospects or creditworthiness of the Company or
any of its Subsidiaries which may come into the possession of the Agent or any
of its officers, directors, employees, agents, attorneys-in-fact or affiliates.
9.7 INDEMNIFICATION. The Lenders agree to indemnify the Agent in its
capacity as such ratably according to their respective "percentages" as used in
determining the Majority Lenders at such time, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, reasonable expenses or disbursements of any kind whatsoever which may at
any time (including, without limitation, at any time following the payment in
full of the Obligations) be imposed on, incurred by or asserted against the
Agent in its capacity as such in any way relating to or arising out of this
Agreement or any other Loan Document, or any documents contemplated by or
referred to herein or the transactions contemplated hereby of any action taken
or omitted to be taken by the Agent under or in connection with any of the
foregoing, but only to the extent that any of the foregoing is not paid by the
Company or any of its Subsidiaries; provided that no Lender shall be liable to
the Agent for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from the gross negligence or willful misconduct
of the Agent. If any indemnity furnished to the Agent for any purpose shall, in
the opinion of the Agent be insufficient or become impaired, the Agent may call
for additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished. The agreements in this
Section 9.7 shall survive the payment in full of all Obligations.
9.8 AGENT IN ITS INDIVIDUAL CAPACITY. The Agent and its affiliates may
make loans to, accept deposits from and generally engage in any kind of business
with the Company and its Subsidiaries as though the Agent were not the Agent
hereunder. With respect to the Interim Loan made by it and all Obligations owing
to it, the Agent shall have the same rights and powers under this Agreement as
any Lender and may exercise the same as though it were not the Agent and the
term "Lender" and "Lenders" shall include the Agent in its individual
capacities.
9.9 RESIGNATION OF THE AGENT; SUCCESSOR AGENT. The Agent may resign as
Agent upon 20 days' notice to the Lenders and the Company. Upon the resignation
of the Agent, Lenders holding in the aggregate more than 50% of the outstanding
principal amount of Interim Notes shall appoint from among the Lenders a
successor Agent for the Lenders subject to prior approval by the Company (such
approval not to be unreasonably withheld or delayed), whereupon such successor
Agent shall succeed to the rights, powers and duties of the resigning Agent, and
the term "Agent" shall include such successor Agent effective upon its
appointment, and the resigning Agent's rights, powers and duties as the Agent
shall be terminated, without any other or further act or deed on the part of
such former Agent or any of the parties to this Agreement. After the resignation
of the Agent hereunder, 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
under this Agreement.
SECTION 10 MISCELLANEOUS
10.1 RESERVED.
10.2 PARTICIPATIONS IN AND ASSIGNMENTS OF INTERIM LOAN AND
INTERIM NOTES.
A. Each Lender shall have the right at any time to sell,
assign, transfer or negotiate (collectively, a "SYNDICATION") all or any portion
of its Interim Notes or its Interim Loan Commitment in an aggregate amount of
not less than $10,000,000 to any Eligible Assignee. In the case of any sale,
transfer or negotiation of all or part of the Interim Notes or any Interim Loan
Commitment authorized under this Section 10.2A, the assignee, transferee or
recipient shall become a party to this Agreement as a Lender by execution of an
assignment and assumption agreement in substantially the form set forth as
Exhibit VII; provided that (i) at such time Section 2.1A or 2.2A, as the case
may be, shall be deemed modified to reflect the Interim Loan Commitment of such
new Lender and of the existing Lenders, (ii) upon surrender of the Interim Notes
to the Company, new Interim Notes will be issued to such new Lender and to the
assigning Lender, such new Interim Notes to be in conformity with the
requirements of Section 2.1D or 2.2E, as the case may be (with appropriate
modifications), to the extent needed to reflect the revised Interim Loan
Commitment, and (iii) the Agent shall receive at the time of each such
assignment, from the assigning or assignee Lender, the payment of a
non-refundable assignment fee of $3,500; and provided, further, that such
transfer or assignment will not be effective until recorded by the Agent on the
Register pursuant to Section 5.4. To the extent of any assignment pursuant to
this Section 10.2A, the assigning Lender shall be relieved of its obligations
hereunder with respect to its assigned Interim Loan Commitment, and the
assignee, transferee or recipient shall have, to the extent of such sale,
assignment, transfer or negotiation, the same rights, benefits and obligations
as it would if it were a Lender with respect to such Interim Notes or Interim
Loan Commitment, including, without limitation, the right to approve or
disapprove actions which, in accordance with the terms hereof, require the
approval of a Lender. At the time of each assignment pursuant to this Section
10.2A to an Eligible Assignee which is not already a Lender hereunder and which
is not a United States Person (as such term is defined in Section 7701(a)(30) of
the Internal Revenue Code) for Federal income tax purposes, the respective
Eligible Assignee shall provide to the Company and the Agent the appropriate
Internal Revenue Service Forms (and, if applicable, a Section 10.2D(ii)
Certificate) described in Section 10.2D.
B. Each Lender may grant participations in all or any part of
its Interim Notes or its Interim Loan Commitment in an aggregate amount of not
less than $10,000,000 to any Eligible Assignee.
C. Nothing in this Agreement shall prevent or prohibit any
Lender from pledging its Interim Notes and Interim Notes hereunder to a Federal
Reserve Bank in support of borrowings made by such Lender from such Federal
Reserve Bank.
D. Each Lender that is an assignee or transferee of an
interest under this Agreement pursuant to Section 10.2A (unless the respective
Lender was already a Lender hereunder immediately prior to such assignment or
transfer) and that is not a United States Person (as such term is defined in
Section 7701(a)(30) of the Internal Revenue Code) agrees to
deliver to the Company and the Agent, on the date of such assignment or transfer
to such Lender, (i) two accurate and complete original signed copies of Internal
Revenue Service Form 4224 or 1001 (or successor forms) certifying to such
Lender's entitlement to a complete exemption from United States withholding tax
with respect to payments to be made under this Agreement and under any Note, or
(ii) if the Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of
the Internal Revenue Code and cannot deliver either Internal Revenue Service
Form 1001 or 4224 pursuant to clause (i) above, two accurate and complete
original signed copies of Internal Revenue Service Form W-8 (or successor form)
certifying to such Lender's entitlement to a complete exemption from United
States withholding tax with respect to payments of interest to be made under
this Agreement and under any Note. In addition, each Lender agrees that, when a
lapse in time or change in circumstances renders the previous certification
obsolete or inaccurate in any material respect, it will deliver to the Company
and the Agent two new accurate and complete original signed copies of Internal
Revenue Service Form 4224 or 1001, or Form W-8, as the case may be, and such
other forms as may be required in order to confirm or establish the entitlement
of such Lender to a continued exemption from or reduction in United States
withholding tax with respect to payments under this Agreement and any Note, or
it shall immediately notify the Company and the Agent of its inability to
deliver any such Form or Certificate. Subject to Section 10.2A and the
immediately succeeding sentence, the Company shall be entitled, to the extent it
is required to do so by law, to deduct or withhold income or similar taxes
imposed by the United States (or any political subdivision or taxing authority
thereof or therein) from interest, fees or other amounts payable hereunder or
made on any other Loan Document for the account of any Lender which 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 to the extent that
such Lender has not provided to the Company U.S. Internal Revenue Service Forms
that establish a complete exemption from such deduction or withholding.
Notwithstanding anything to the contrary contained in the preceding sentence or
elsewhere in this Section 10.2D and except as set forth in Section 10.2A, the
Company agrees to pay additional amounts and to indemnify and hold harmless each
Lender (without regard to the identity of the jurisdiction requiring the
deduction or withholding), and reimburse such Lender upon its written request,
in respect of any amounts deducted or withheld by it as described in the
immediately preceding sentence as a result of any changes after the date of any
assignment or transfer in any applicable law, treaty, governmental rule,
regulation, guideline or order, or in the interpretation thereof, relating to
the deducting or withholding of income or similar Taxes.
10.3 EXPENSES. Whether or not the transactions contemplated hereby
shall be consummated, the Company agrees to promptly pay (i) all the reasonable
and documented fees and expenses of Agent in connection with the preparation,
negotiation, execution and delivery of the Loan Documents (including, without
limitation, the reasonable fees and disbursements of Xxxxxx, Xxxx & Xxxxxxxx
LLP); provided, however, that the Company's obligation to reimburse Agent for
fees and expenses under this clause (i) shall not exceed $100,000; (ii) the
reasonable and documented fees, expenses and disbursements of counsel to the
Lenders in connection with any amendments, modifications and waivers hereto or
thereto and consents to departures from the terms hereof and thereof; and (iii)
after the occurrence of an Event of Default, all costs and expenses (including
actual and reasonable attorneys fees and costs of settlement) incurred by the
Lenders or the Agent in enforcing any Obligations of or in collecting any
payments due from the Company hereunder or under the Interim Notes by reason of
such Event of Default or in
connection with any refinancing or restructuring of the credit arrangements
provided under this Agreement in the nature of a "work-out" or of any insolvency
or bankruptcy proceedings.
10.4 INDEMNITY. In addition to the payment of expenses pursuant to
Section 10.3, whether or not the transactions contemplated hereby shall be
consummated, the Company agrees to indemnify, pay and hold each of the Lenders,
the Agent and any holder of any of the Interim Notes, and each of their
respective officers, directors, employees, agents, representatives and
affiliates (collectively called the "INDEMNITEES"), harmless from and against
any and all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, expenses and disbursements of any kind or
nature whatsoever (including, without limitation, the reasonable fees and
disbursements of counsel for such Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened,
whether or not such Indemnitee shall be designated as a party thereto, but
excluding any special, indirect, consequential or punitive damages), which may
be suffered by, imposed on, incurred by, or asserted against that Indemnitee, in
any manner resulting from, connected with, in respect of, relating to or arising
out of this Agreement, the other Loan Documents, the Lenders' agreements to make
the Interim Loan or the use or intended use of any of the proceeds of the
Interim Loan hereunder or the issuance of the Exchange Notes (the "INDEMNIFIED
LIABILITIES"); provided that the Company shall have no obligation to an
Indemnitee hereunder with respect to Indemnified Liabilities (i) to the extent
such liabilities are non-appealable and finally judicially determined to have
resulted solely from the willful misconduct, gross negligence, bad faith or
recklessness of that Indemnitee (and, upon any such determination, any
indemnification payments with respect to such losses, claims, damages,
liabilities or related costs and expenses previously received by such Indemnitee
shall be promptly reimbursed by such Indemnitee), (ii) to the extent the Company
is entitled to indemnification under the Acquisition Agreements (without, for
the purposes of this Section 10.4, giving effect to any limitations on
indemnification set forth in the Stock Purchase Agreement (whether as a result
of the expiration of any applicable survival period or the effect of any
monetary thresholds, deductions or caps and including, without limitation, the
limitations set forth in 9.01 and 9.05 of the Stock Purchase Agreement)) or
(iii) to the extent such liabilities relate solely to pre-Closing Date
occurrences relating to the operation of the Business. To the extent that the
undertaking to indemnify, pay and hold harmless set forth in the preceding
sentence may be unenforceable because it is violative of any law or public
policy, the Company shall contribute the maximum portion which it is permitted
to pay and satisfy under applicable law to the payment and satisfaction of all
Indemnified Liabilities incurred by the Indemnitees or any of them.
10.5 SETOFF. 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, the Agent and each subsequent
holder of any Note are hereby authorized by the Company at any time or from time
to time, without notice to the Company, or to any other Person, any such notice
being hereby expressly waived, so long as the claim arises under a final
non-appealable judgment that has been finally determined by a court of competent
jurisdiction, to set off and to appropriate and to apply any and all deposits
(general or special, including, but not limited to, Indebtedness evidenced by
certificates of deposit, whether matured or unmatured but not including trust
accounts or any other accounts held for the benefit of another Person) and any
other Indebtedness at any time held or owing by such Person or any such
subsequent holder to or for the credit or the account of the Company against and
on account of the obligations and
liabilities of the Company to such Person or such subsequent holder under this
Agreement and the Interim Notes, including, but not limited to, all claims of
any nature or description arising out of or connected with this Agreement or the
Interim Notes, irrespective of whether or not (a) such Person or such subsequent
holder shall have made any demand hereunder or (b) such Person or such
subsequent holder shall have declared the principal of or the interest on its
portion of the Interim Loan and its Interim Notes and other amounts due
hereunder to be due and payable as permitted by Section 7 and although said
obligations and liabilities, or any of them, may be contingent or unmatured. The
Agent and each Lender hereby waive and disclaim any right of set-off against
amounts due to it from the Company under the Interim Notes any amount due and
payable by the Agent or such Lender, or any Subsidiary or Affiliate of such
Lender, to the Company or any Subsidiary or Affiliate of the Company pursuant to
the terms of the Stock Purchase Agreement.
10.6 AMENDMENTS AND WAIVERS. No amendment, modification, termination or
waiver of any term or provision of this Agreement, of the Interim Notes, or,
prior to the execution and delivery thereof, of the form of the Registration
Rights Agreement or the form of the Senior Indenture, or consent to any
departure by the Company therefrom, shall in any event be effective without the
prior written concurrence of the Company, and the Majority Lenders; provided
that without the prior written consent of each Lender affected, an amendment,
modification, termination or waiver of this Agreement, any Interim Notes, and,
prior to the execution and delivery thereof, of the form of Registration Rights
Agreement or the form of Senior Indenture or consent to departure from a term or
provision hereof or thereof may not: (i) reduce the principal amount of Interim
Notes whose holders must consent to any such amendment, modification,
termination, waiver or consent; (ii) reduce the rate of or extend the time for
payment of principal or interest on any Note; (iii) reduce the principal amount
of any Note; (iv) make any Note payable in money other than that stated in the
Note; (v) amend, change or modify in any material respect the obligation of the
Company to make and consummate a Change of Control Offer after the occurrence of
a Change of Control; and provided, further, that without the consent of the
Agent, no such amendment, modification, termination or waiver may amend, modify,
terminate or waive any provision of Section 9 as the same applies to the Agent
or any other provision of this Agreement as it relates to the rights or
obligations of the Agent. 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 the Company in any case shall entitle the Company to any further
notice or demand in similar or other circumstances. Any amendment, modification,
termination, waiver or consent effected in accordance with this Section 10.6
shall be binding upon each holder of the Interim Notes at the time outstanding,
each further holder of the Interim Notes, and, if signed by the Company, on the
Company.
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 be otherwise within the limitation of, another covenant shall not avoid
the occurrence of an Event of Default or Default if such action is taken or
condition exists.
10.8 ENTIRETY. The Loan Documents embody the entire agreement of the
parties and supersede all prior agreements and understandings, if any, relating
to the subject matter hereof and thereof.
10.9 NOTICES. Unless otherwise provided herein, any notice or other
communications herein required or permitted to be given shall be in writing and
may be personally served, telecopied, telexed or sent by mail and shall be
deemed to have been given when delivered in person, upon receipt of telecopy or
telex against receipt of answer back or four Business Days after depositing it
in the mail, registered or certified, with postage prepaid and properly
addressed; provided that notices shall not be effective until received. For the
purposes hereof, the addresses of the parties hereto, until notice of a change
thereof is delivered as provided in this Section 10.9, shall be set forth under
each party's name on the signature pages hereto.
10.10 SURVIVAL OF WARRANTIES AND CERTAIN AGREEMENTS.
A. All agreements, representations and warranties made herein
shall survive the execution and delivery of this Agreement, the making of the
Interim Loan hereunder and the execution and delivery of the Interim Notes and,
notwithstanding the making of the Interim Loan, the execution and delivery of
the Interim Notes or any investigation made by or on behalf of any party, shall
continue in full force and effect as long as any Obligations remain outstanding.
The closing of the transactions herein contemplated shall not prejudice any
right of one party against any other party in respect of anything done or
omitted hereunder or in respect of any right to damages or other remedies.
B. Notwithstanding anything in this Agreement or implied by
law to the contrary, the agreements of the Company set forth in Sections 10.3,
10.4, 10.14, 10.15, 10.17, 10.19 and 10.22 shall survive the payment of the
Interim Loan and the Interim Notes and the termination of this Agreement.
10.11 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure
or delay on the part of the Agent or any Lender or any holder of any Interim
Note in the exercise of any power, right or privilege hereunder, under the
Interim Notes 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 right, power or privilege. All rights and
remedies existing under this Agreement, under the Interim Notes are cumulative
to and not exclusive of any rights or remedies otherwise available.
10.12 SEVERABILITY. In case any provision in or obligation under this
Agreement, under the Interim Notes 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.
10.13 HEADINGS. Section and Section headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive effect.
10.14 APPLICABLE LAW. THIS AGREEMENT, THE INTERIM NOTES SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW.
10.15 SUCCESSORS AND ASSIGNS; SUBSEQUENT LENDERS OF INTERIM NOTES. 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 the Lenders. The terms and provisions of this
Agreement shall inure to the benefit of any assignee or transferee of the
Interim Notes pursuant to Section 10.2A, and in the event of such transfer or
assignment, the rights and privileges herein conferred upon the Lenders shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions hereof. In determining whether the holders
of a sufficient aggregate principal amount of the Interim Loan shall have
consented to any action under this Agreement, any amount of the Interim Loan
owned or held by the Company, or any of its Affiliates shall be disregarded. The
Company's rights or any interest therein hereunder may not be assigned without
the prior express written consent of each of the Lenders.
10.16 COUNTERPARTS; EFFECTIVENESS. This Agreement and any amendments,
waivers, consents or supplements may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument. This Agreement shall
become effective upon the execution of a counterpart hereof by each of the
parties hereto, and delivery thereof to the Agent or, in the case of the
Lenders, written telex or facsimile notice or telephonic notification (confirmed
in writing) of such execution and delivery. The Agent will give the Company and
each Lender prompt notice of the effectiveness of this Agreement.
10.17 CONSENT TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL.
A. Any legal action or proceeding with respect to this
Agreement, any Interim Note may be brought in the courts of the State of New
York or of the United States for the Southern District of New York, and, by
execution and delivery of this Agreement, each of the parties to this Agreement
hereby irrevocably accepts for itself and in respect of its respective property,
generally and unconditionally, the jurisdiction of the aforesaid courts. Each of
the parties to this Agreement hereby further irrevocably waives any claim that
any such courts lack jurisdiction over such party, and agrees not to plead or
claim, in any legal action or proceeding with respect to this Agreement or the
Interim Notes brought in any of the aforesaid courts, that any such court lacks
jurisdiction over such party. Each of the parties to this Agreement irrevocably
consents to the service of process in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
such party, at its respective address for notices pursuant to Section 10.9, such
service to become effective 30 days after such mailing. To the extent permitted
by law, each of the parties to this Agreement hereby irrevocably waives any
objection to such service of process and further irrevocably waives and agrees
not to plead or claim in any action or proceeding commenced hereunder or under
any Note that service of process was in any way invalid or ineffective. Nothing
herein shall affect the right of any party to this Agreement to serve process in
any other manner permitted by law or to commence legal proceedings or otherwise
proceed against any party in any other jurisdiction.
B. Each of the parties to this Agreement hereby irrevocably
waives any objection which it may now or hereafter have to the laying of venue
of any of the aforesaid actions or proceedings arising out of or in connection
with this Agreement or the Interim Notes
brought in the courts referred to in clause A above and hereby further
irrevocably waives and agrees not to plead or claim in any such court that any
such action or proceeding brought in any such court has been brought in an
inconvenient forum.
C. Each of the parties to this Agreement hereby irrevocably
waives all right to a trial by jury in any action, proceeding or counterclaim
arising out of or relating to this Agreement or the Interim Notes or the
transactions contemplated hereby or thereby.
10.18 PAYMENTS BY AGENT.
A. The Agent agrees that promptly after its receipt of each
payment of any interest or premium on or principal of the Interim Notes from or
on behalf of the Company, it shall, except as otherwise provided in this
Agreement, distribute such payment to the Lenders (other than any Lender that
has consented in writing to waive its pro rata share of such payment) pro rata
based upon their respective pro rata shares, if any, of such payment.
B. Each of the Lenders agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security, by
the exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Loan Documents, or otherwise)
which is applicable to the payment of the principal of, or interest on, the
Interim Loan of a sum which with respect to the related sum or sums received by
other Lenders is in a greater proportion than the total of such Obligation then
owed and due to such Lender bears to the total of such Obligation then owed and
due to all of the Lenders immediately prior to such receipt, then such Lender
receiving such excess payment shall purchase for cash without recourse or
warranty from the other Lenders an interest in the Obligations of the Company to
such Lenders in such amount as shall result in a proportional participation by
all of the Lenders in such amount; provided that, if all or any portion of such
excess amount is thereafter recovered from such Lender, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest.
10.19 TAXES.
A. Any and all payments by the Company hereunder or under any
of the other Loan Documents shall be made free and clear of and without
deduction or withholding for any and all present or future Taxes, unless such
Taxes are required by law or the administration thereof to be deducted or
withheld and excluding (i) in the case of each Lender and the Agent, Taxes
imposed on its net income and franchise taxes imposed on it by the jurisdiction
under the laws of which such Person is organized or any political subdivision
thereof, (ii) in the case of each such Lender and the Agent, any Taxes that are
in effect and that would apply to a payment to such Person, as applicable, as of
the Closing Date, and (iii) if any Person acquires any interest in this
Agreement (a "TRANSFEREE"), any Taxes to the extent that they are in effect and
would apply to a payment to such Transferee as of the date of the acquisition of
such interest, as the case may be (all such nonexcluded Taxes being hereinafter
referred to as "COVERED TAXES"). If the Company shall be required by Law or the
administration thereof to deduct or withhold any Covered Taxes from or in
respect of any sum payable hereunder or under any other Loan Document, (a)
unless such requirement results from the failure of the payee to perform its
obligations under Section 10.2D, the sum payable shall be increased as may be
necessary so that
after making all required deductions or withholdings (including deductions or
withholdings applicable to additional amounts paid under this paragraph), the
Lender receives an amount equal to the sum it would have received if no such
deduction or withholding had been made; (b) the Company shall make such
deductions or withholdings; and (c) the Company forthwith shall pay the full
amount deducted or withheld to the relevant taxation or other authority in
accordance with applicable Law.
B. The Company agrees to pay forthwith any present or future
stamp documentary taxes or any other excise or property taxes, charges or
similar levies (all such taxes, charges and levies being herein referred to as
"OTHER TAXES") imposed by any jurisdiction (or any political subdivision or
taxing authority thereof or therein) which arise from any payment made by the
Company hereunder or under any of the other Loan Documents or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or any of the other Loan Documents.
C. The Company agrees to indemnify the Agent and each of the
Lenders for the full amount of Covered Taxes or Other Taxes not deducted or
withheld and paid by the Company in accordance with Sections 10.19A and 10.19B
to the relevant taxation or other authority and any Taxes other than Covered
Taxes or Other Taxes imposed by any jurisdiction on amounts payable by the
Company under this Section 10.19 paid by the Lender or the Agent and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not any such Taxes or Other Taxes were correctly or
legally asserted. Payment under this indemnification shall be made within 30
days from the date the Agent or such Lender makes written demand therefor. A
certificate as to the amount of such Taxes or Other Taxes and evidence of
payment thereof submitted to the Company shall be prima facie evidence, absent
manifest error, of the amount due from the Company to the Agent or such Lender.
D. The Company shall furnish to the Agent and each of the
Lenders the original or a certified copy of a receipt evidencing any payment of
Taxes or Other Taxes made by the Company as soon as such receipt becomes
available.
E. The provisions of this Section 10.19 shall survive the
termination of the Agreement and repayment of all Obligations.
10.20 WAIVER OF STAY, EXTENSION OR USURY LAWS. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay or extension law or any usury law or other law that would prohibit
or forgive the Company from paying all or any portion of the principal of or
interest on the Interim Loan as contemplated herein, wherever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Agreement; and (to the extent that it may lawfully do so)
the Company hereby expressly waives all benefit or advantage of any such law,
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Agent, but will suffer and permit the execution of
every such power as though no such law had been enacted.
10.21 REQUIREMENTS OF LAW. If at any time after the Closing Date any
Lender reasonably determines that the introduction of or any change in any
applicable law or governmental rule, regulation, order, guideline, directive or
request (whether or not having the force of law) concerning capital adequacy, or
any change in interpretation or administration thereof by any governmental
authority, central bank or comparable agency, will have the effect of increasing
the amount of capital required or expected to be maintained by such Lender or
any corporation controlling such Lender based on the existence of such Lender's
Interim Loan hereunder or its obligations hereunder, then the Company and each
of its Subsidiaries jointly and severally agree to pay to such Lender, upon its
written demand therefor, such additional amounts as shall be required to
compensate such Lender or such other corporation for the increased cost to such
Lender or such other corporation or the reduction in the rate of return to such
Lender or such other corporation as a result of such increase of capital. In
determining such additional amounts, each Lender will act reasonably and in good
faith and will use averaging and attribution methods which are reasonable;
provided that such Lender's reasonable good faith determination of compensation
owing under this Section 10.21 shall, absent demonstrable error, be final and
conclusive and binding on all the parties hereto. Each Lender, upon determining
that any additional amounts will be payable pursuant to this Section 10.21, will
give written notice thereof to the Company (a copy of which shall be sent by
such Lender to the Agent), which notice shall show the basis for calculation of
such additional amounts, although the failure to give any such notice shall not
release or diminish any of the Company's or its Subsidiaries' obligations to pay
additional amounts pursuant to this Section 10.21 upon the subsequent receipt of
such notice. In the event any Lender delivers a written notice requesting the
payment of additional amounts pursuant to this Section 10.21, the Company may,
at its sole expense and effort, upon notice to such Lender and the Agent,
require such Lender to transfer and assign, without recourse (in accordance with
and subject to the restrictions contained in Section 10.2), all of its
interests, rights and obligations under its Interim Loan and this Agreement to
an assignee that shall assume such assigned obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided that:
(i) the Company shall have paid to the Agent the assignment fee
specified in Section 10.2;
(ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Interim Loans, accrued interest thereon (including
Liquidated Damages, if any), and all other amounts payable to it hereunder and
under the other Loan Documents from the assignee (to the extent of such
outstanding principal and accrued interest (and Liquidated Damages, if any) and
fees) or the Company (in the case of all other amounts); and
(iii) such assignment does not conflict with applicable laws.
In connection with any such replacement, if the replaced Lender does
not execute and deliver to the Agent a duly completed assignment and assumption
agreement substantially in the form Exhibit VII hereto reflecting such
replacement within five Business Days of the date on which the replacement
Lender executes and delivers such assignment and assumption agreement to the
replaced Lender, then such replaced Lender shall be deemed to have executed and
delivered such assignment and assumption agreement. A Lender shall not be
required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or
otherwise, the circumstances entitling the Company to require such assignment
and delegation cease to apply.
10.22 CONFIDENTIALITY.
A. Subject to the provisions of clause B of this Section
10.22, each of the Agent and each Lender agrees that it will not disclose
without the prior consent of the Company (other than to its Affiliates,
employees, auditors, advisors or counsel or to another Lender if the Lender or
such Lender's holding or parent company in its sole discretion determines that
any such party should have access to such information, provided such Persons
shall be subject to the provisions of this Section 10.22 to the same extent as
such Lender) any information with respect to the Company or any of its
Subsidiaries which is now or in the future furnished pursuant to this Agreement
or any other Loan Document and which is designated by the Company to the Agent
and the Lenders in writing as confidential, provided that the Agent or any
Lender may disclose any such information (a) as has become generally available
to the public, (b) as may be required or appropriate in any report, statement or
testimony submitted to any municipal, state or Federal regulatory body having or
claiming to have jurisdiction over the Agent or such Lender or to the Federal
Reserve Board or the Federal Deposit Insurance Corporation or similar
organizations (whether in the United States or elsewhere) or their successors,
(c) as may be required or appropriate in respect to any summons or subpoena or
in connection with any litigation, (d) in order to comply with any law, order,
regulation or ruling applicable to the Agent or such Lender, (e) to the Agent
and (f) to any prospective or actual transferee or participant in connection
with any contemplated transfer or participation of any of the Interim Notes or
any interest therein by such Lender; provided that such prospective transferee
agrees to provisions substantially the same as those contained in this Section
10.22. Each of the Agent and the Lenders agrees not to use any information
supplied to it by, or on behalf, of the Company or any of its Subsidiaries
pursuant to this Agreement for any purpose or in any manner other than (i)
evaluating the performance of the Company and its Subsidiaries hereunder, (ii)
enforcing the rights, remedies and obligations hereunder and under the other
Loan Documents and the Intercreditor Agreement and (iii) in connection with the
Stock Purchase Agreement.
B. The Company hereby acknowledges and agrees that each Lender
may share with any of its affiliates any information related to the Company or
any of its Subsidiaries (including, without limitation, any nonpublic customer
information regarding the creditworthiness of the Company and its Subsidiaries);
provided such Persons shall be subject to the provisions of this Section 10.22
to the same extent as such Lender.
10.23 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee,
incorporator or stockholder of the Company, as such, will have any liability for
any obligations of the Company under the Interim Notes, this Agreement, or any
other Loan Document or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Lender waives and releases all such
liability. The waiver and release are part of the consideration for entering
into this Agreement and consummating the transactions hereunder.
* * *
WITNESS the due execution hereof by the respective duly authorized
officers of the undersigned as of the date first written above.
COMPANY:
TAL INTERNATIONAL GROUP, INC.
By: /s/ A. Xxxxxxx Xxxxxx, Xx.
----------------------------------
Name: A. Xxxxxxx Xxxxxx, Xx.
Title: Vice President
AGENT:
TRANSAMERICA ACCOUNTS HOLDING CORPORATION
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Executive Vice President
LENDER:
COMMITMENT: TRANSAMERICA ACCOUNTS HOLDING CORPORATION
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Executive Vice President
