CREDIT AGREEMENT Dated as of September 20, 2006, among BERRY PLASTICS GROUP, INC., BPC ACQUISITION CORP., (which on the Closing Date shall be merged with and into BPC Holding Corporation, with BPC Holding Corporation surviving such merger as the...
$875,000,000
Dated
as
of September 20, 2006,
among
XXXXX
PLASTICS GROUP, INC.,
BPC
ACQUISITION CORP.,
(which
on
the Closing Date shall be merged with and into BPC Holding Corporation,
with
BPC
Holding Corporation surviving such merger as the borrower),
as
Borrower,
THE
LENDERS PARTY HERETO,
CREDIT
SUISSE, CAYMAN ISLANDS BRANCH,
as
Administrative Agent,
CITICORP
NORTH AMERICA, INC.,
as
Syndication Agent,
DEUTSCHE
BANK SECURITIES INC.
and
X.X.
XXXXXX SECURITIES INC.,
as
Co-Documentation Agents
CREDIT
SUISSE SECURITIES (USA) LLC
DEUTSCHE
BANK SECURITIES, INC.
X.X.
XXXXXX SECURITIES INC.
and
CITIGROUP
GLOBAL MARKETS INC.,
as
Joint
Bookrunners
_________________
CREDIT
SUISSE SECURITIES (USA) LLC
and
CITIGROUP
GLOBAL MARKETS INC.,
as
Joint
Lead Arrangers
|
NY\1169071.12|||
038263-0065||
TABLE
OF
CONTENTS
ARTICLE
I
Definitions
|
SECTION
1.01.
|
Defined
Terms
|
1
|
|
SECTION
1.02.
|
Terms
Generally
|
48
|
|
SECTION
1.03.
|
Effectuation
of Transactions
|
49
|
|
SECTION
1.04.
|
Exchange
Rates; Currency Equivalents.
|
49
|
ARTICLE
II
The
Credits
|
SECTION
2.01.
|
Commitments
|
49
|
|
SECTION
2.02.
|
Loans
and Borrowings
|
50
|
|
SECTION
2.03.
|
Requests
for Borrowings
|
51
|
|
SECTION
2.04.
|
Swingline
Loans
|
51
|
|
SECTION
2.05.
|
Letters
of Credit
|
53
|
|
SECTION
2.06.
|
Funding
of Borrowings
|
58
|
|
SECTION
2.07.
|
Interest
Elections
|
59
|
|
SECTION
2.08.
|
Termination
and Reduction of Commitments
|
60
|
|
SECTION
2.09.
|
Repayment
of Loans; Evidence of Debt
|
61
|
|
SECTION
2.10.
|
Repayment
of Term Loans and Revolving Facility Loans
|
62
|
|
SECTION
2.11.
|
Prepayment
of Loans
|
64
|
|
SECTION
2.12.
|
Fees
|
65
|
|
SECTION
2.13.
|
Interest
|
66
|
|
SECTION
2.14.
|
Alternate
Rate of Interest
|
67
|
|
SECTION
2.15.
|
Increased
Costs
|
67
|
|
SECTION
2.16.
|
Break
Funding Payments
|
69
|
|
SECTION
2.17.
|
Taxes
|
69
|
|
SECTION
2.18.
|
Payments
Generally; Pro Rata Treatment; Sharing of Set offs
|
71
|
|
SECTION
2.19.
|
Mitigation
Obligations; Replacement of Lenders
|
73
|
|
SECTION
2.20.
|
Illegality
|
74
|
|
SECTION
2.21.
|
Incremental
Commitments
|
74
|
ARTICLE
III
Representations
and Warranties
|
SECTION
3.01.
|
Organization;
Powers
|
76
|
|
SECTION
3.02.
|
Authorization
|
77
|
|
SECTION
3.03.
|
Enforceability
|
00
|
-x-
|
XXXXXXX
3.04.
|
Governmental
Approvals
|
77
|
|
SECTION
3.05.
|
Financial
Statements
|
77
|
|
SECTION
3.06.
|
No
Material Adverse Effect
|
78
|
|
SECTION
3.07.
|
Title
to Properties; Possession Under Leases
|
78
|
|
SECTION
3.08.
|
Subsidiaries
|
79
|
|
SECTION
3.09.
|
Litigation;
Compliance with Laws
|
79
|
|
SECTION
3.10.
|
Federal
Reserve Regulations
|
80
|
|
SECTION
3.11.
|
Investment
Company Act
|
80
|
|
SECTION
3.12.
|
Use
of Proceeds
|
80
|
|
SECTION
3.13.
|
Tax
Returns
|
80
|
|
SECTION
3.14.
|
No
Material Misstatements
|
81
|
|
SECTION
3.15.
|
Employee
Benefit Plans
|
81
|
|
SECTION
3.16.
|
Environmental
Matters
|
82
|
|
SECTION
3.17.
|
Security
Documents
|
82
|
|
SECTION
3.18.
|
Location
of Real Property and Leased Premises
|
83
|
|
SECTION
3.19.
|
Solvency
|
84
|
|
SECTION
3.20.
|
Labor
Matters
|
84
|
|
SECTION
3.21.
|
Insurance
|
85
|
|
SECTION
3.22.
|
No
Default
|
85
|
|
SECTION
3.23.
|
Intellectual
Property; Licenses, Etc.
|
85
|
|
SECTION
3.24.
|
Senior
Debt
|
85
|
ARTICLE
IV
Conditions
of Lending
|
SECTION
4.01.
|
All
Credit Events
|
85
|
|
SECTION
4.02.
|
First
Credit Event
|
86
|
ARTICLE
V
Affirmative
Covenants
|
SECTION
5.01.
|
Existence;
Businesses and Properties
|
90
|
|
SECTION
5.02.
|
Insurance
|
90
|
|
SECTION
5.03.
|
Taxes
|
91
|
|
SECTION
5.04.
|
Financial
Statements, Reports, etc.
|
91
|
|
SECTION
5.05.
|
Litigation
and Other Notices
|
94
|
|
SECTION
5.06.
|
Compliance
with Laws
|
95
|
|
SECTION
5.07.
|
Maintaining
Records; Access to Properties and Inspections
|
95
|
|
SECTION
5.08.
|
Use
of Proceeds
|
95
|
|
SECTION
5.09.
|
Compliance
with Environmental Laws
|
95
|
|
SECTION
5.10.
|
Further
Assurances; Additional Security
|
95
|
|
SECTION
5.11.
|
Rating
|
97
|
|
SECTION
5.12.
|
Compliance
with Material Contracts
|
97
|
-ii-
ARTICLE
VI
Negative
Covenants
|
SECTION
6.01.
|
Indebtedness
|
98
|
|
SECTION
6.02.
|
Liens
|
102
|
|
SECTION
6.03.
|
Sale
and Lease Back Transactions
|
106
|
|
SECTION
6.04.
|
Investments,
Loans and Advances
|
106
|
|
SECTION
6.05.
|
Mergers,
Consolidations, Sales of Assets and Acquisitions
|
110
|
|
SECTION
6.06.
|
Dividends
and Distributions
|
113
|
|
SECTION
6.07.
|
Transactions
with Affiliates
|
115
|
|
SECTION
6.08.
|
Business
of the Borrower and the Subsidiaries
|
118
|
|
SECTION
6.09.
|
Limitation
on Modifications of Indebtedness; Modifications of Certificate
of
|
|
|
|
Incorporation,
By Laws and Certain Other Agreements; etc.
|
118
|
|
SECTION
6.10.
|
[Intentionally
Omitted]
|
120
|
|
SECTION
6.11.
|
Total
Net First Lien Leverage Ratio
|
120
|
|
SECTION
6.12.
|
[Intentionally
Omitted]
|
120
|
|
SECTION
6.13.
|
No
Other “Designated Senior Debt”
|
120
|
|
SECTION
6.14.
|
Fiscal
Year; Accounting
|
121
|
ARTICLE
VIA
Holdings
Negative Covenants
ARTICLE
VII
Events
of
Default
|
SECTION
7.01.
|
Events
of Default
|
121
|
|
SECTION
7.02.
|
Exclusion
of Immaterial Subsidiaries
|
125
|
|
SECTION
7.03.
|
Right
to Cure; Holdings’ Right to Cure
|
125
|
ARTICLE
VIII
The
Agents
|
SECTION
8.01.
|
Appointment
|
125
|
|
SECTION
8.02.
|
Delegation
of Duties
|
127
|
|
SECTION
8.03.
|
Exculpatory
Provisions
|
128
|
|
SECTION
8.04.
|
Reliance
by Administrative Agent
|
129
|
|
SECTION
8.05.
|
Notice
of Default
|
129
|
|
SECTION
8.06.
|
Non-Reliance
on Agents and Other Lenders
|
129
|
|
SECTION
8.07.
|
Indemnification
|
130
|
-iii-
|
SECTION
8.08.
|
Agent
in Its Individual Capacity
|
131
|
|
SECTION
8.09.
|
Successor
Administrative Agent
|
131
|
|
SECTION
8.10.
|
Agents
and Arrangers
|
131
|
ARTICLE
IX
Miscellaneous
|
SECTION
9.01.
|
Notices;
Communications
|
131
|
|
SECTION
9.02.
|
Survival
of Agreement
|
133
|
|
SECTION
9.03.
|
Binding
Effect
|
133
|
|
SECTION
9.04.
|
Successors
and Assigns
|
133
|
|
SECTION
9.05.
|
Expenses;
Indemnity
|
137
|
|
SECTION
9.06.
|
Right
of Set off
|
139
|
|
SECTION
9.07.
|
Applicable
Law
|
139
|
|
SECTION
9.08.
|
Waivers;
Amendment
|
139
|
|
SECTION
9.09.
|
Interest
Rate Limitation
|
141
|
|
SECTION
9.10.
|
Entire
Agreement
|
142
|
|
SECTION
9.11.
|
WAIVER
OF JURY TRIAL
|
142
|
|
SECTION
9.12.
|
Severability
|
142
|
|
SECTION
9.13.
|
Counterparts
|
142
|
|
SECTION
9.14.
|
Headings
|
143
|
|
SECTION
9.15.
|
Jurisdiction;
Consent to Service of Process
|
143
|
|
SECTION
9.16.
|
Confidentiality
|
143
|
|
SECTION
9.17.
|
Platform;
Borrower Materials
|
144
|
|
SECTION
9.18.
|
Release
of Liens and Guarantees
|
144
|
|
SECTION
9.19.
|
Judgment
Currency
|
145
|
|
SECTION
9.20.
|
USA
PATRIOT Act Notice
|
145
|
|
NY\1169071.12|||
038263-0065||
-iv-
Exhibits
and Schedules
|
Exhibit
A
|
Form
of Assignment and Acceptance
|
|
Exhibit B
|
Form
of Solvency Certificate
|
|
Exhibit C-1
|
Form
of Borrowing Request
|
|
Exhibit C-2
|
Form
of Swingline Borrowing Request
|
|
Exhibit D
|
Form
of Mortgage
|
|
Exhibit E
|
Form
of Collateral Agreement
|
|
Schedule 1.01(a)
|
Certain
U.S. Subsidiaries
|
|
Schedule 1.01(b)
|
Mortgaged
Properties
|
|
Schedule 1.01(c)
|
Existing
Letters of Credit
|
|
Schedule
1.01(d)
|
Immaterial
Subsidiaries
|
|
Schedule
1.01(e)
|
Pro
Forma Adjustments
|
|
Schedule
1.01(f)
|
Unrestricted
Subsidiaries
|
|
Schedule 2.01
|
Commitments
|
|
Schedule 3.01
|
Organization
and Good Standing
|
|
Schedule 3.04
|
Governmental
Approvals
|
|
Schedule
3.07(b)
|
Leased
Properties
|
|
Schedule 3.07(c)
|
Intellectual
Property
|
|
Schedule 3.08(a)
|
Subsidiaries
|
|
Schedule 3.08(b)
|
Subscriptions
|
|
Schedule 3.13
|
Taxes
|
|
Schedule 3.16
|
Environmental
Matters
|
|
Schedule 3.21
|
Insurance
|
|
Schedule 3.23
|
Intellectual
Property
|
|
Schedule 4.02(b)
|
Local
Counsel
|
|
Schedule 4.02(d)
|
Post-Closing
Interest Deliveries
|
|
Schedule 6.01
|
Indebtedness
|
|
Schedule 6.02(a)
|
Liens
|
|
Schedule 6.04
|
Investments
|
|
Schedule 6.07
|
Transactions
with Affiliates
|
|
Schedule 9.01
|
Notice
Information
|
|
NY\1169071.12|||
038263-0065||
-v-
CREDIT
AGREEMENT dated as of September 20, 2006 (this “Agreement”),
among
XXXXX PLASTICS GROUP, INC. (formerly known as BPC Holding Acquisition Corp.),
a
Delaware corporation (“Holdings”),
BPC
ACQUISITION CORP., a Delaware corporation, which on the Closing Date shall
be
merged with and into BPC Holding Corporation, a Delaware corporation, with
BPC
Holding Corporation surviving such merger as the borrower (the “Borrower”),
the
LENDERS party hereto from time to time, CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
as
administrative agent and collateral agent (in such capacities, the “Administrative
Agent”)
for
the Lenders, CITICORP NORTH AMERICA, INC., as syndication agent (in such
capacity, the “Syndication
Agent”),
and
DEUTSCHE BANK SECURITIES INC. and X.X. XXXXXX SECURITIES INC., as
co-documentation agents (in such capacities, the “Documentation
Agents”).
WHEREAS,
affiliates of Apollo Management VI, L.P. and Xxxxxx Partners Inc. (collectively,
the “Funds”)
have
formed Holdings and BPC Acquisition Corp. for the purpose of entering into
that
certain Agreement and Plan of Merger dated as of June 28, 2006 (the
“Acquisition
Agreement”)
by and
among BPC HOLDING CORPORATION (“Target”),
BPC
Holding Acquisition Corp and BPC Acquisition Corp., pursuant to which BPC
Acquisition Corp. will merge with and into the Target, with Target surviving
such merger (the “Acquisition”);
WHEREAS,
in connection with the consummation of the Acquisition, the Borrower has
requested the Lenders to extend credit in the form of (a) Term B Loans on the
Closing Date, in an aggregate principal amount not in excess of $675.0 million,
and (b) Revolving Facility Loans and Letters of Credit at any time and from
time
to time prior to the Revolving Facility Maturity Date, in an aggregate principal
amount at any time outstanding not in excess of $200.0 million;
NOW,
THEREFORE, the Lenders are willing to extend such credit to the Borrower on
the
terms and subject to the conditions set forth herein. Accordingly, the parties
hereto agree as follows:
ARTICLE
I
Definitions
SECTION
1.01. Defined
Terms.
As used in this Agreement, the following terms shall have the meanings specified
below:
“ABR”
shall
mean, for any day, a fluctuating rate per annum equal to the higher of (a)
the
Federal Funds Effective Rate plus 1/2 of 1% and (b) the rate of interest in
effect for such day as announced from time to time by Credit Suisse as its
“prime rate” at its principal office in New York, New York. Any change in such
rate announced by Credit Suisse shall take effect at the opening of business
on
the day specified in the announcement of such change.
“ABR
Borrowing”
shall
mean a Borrowing comprised of ABR Loans.
“ABR
Loan”
shall
mean any ABR Term Loan, ABR Revolving Loan or Swingline Loan.
-1-
“ABR
Revolving Facility Borrowing”
shall
mean a Borrowing comprised of ABR Revolving Loans.
“ABR
Revolving Loan”
shall
mean any Revolving Facility Loan bearing interest at a rate determined by
reference to the ABR in accordance with the provisions of
Article II.
“ABR
Term Loan”
shall
mean any Term Loan bearing interest at a rate determined by reference to the
ABR
in accordance with the provisions of Article II.
“Acceptance
Credit”
shall
mean a commercial Letter of Credit in which the applicable Issuing Bank engages
with the beneficiary of such Letter of Credit to accept a time
draft.
“Acceptance
Documents”
shall
mean such general acceptance agreements, applications, certificates and other
documents as the applicable Issuing Bank may require in connection with the
creation of Bankers’ Acceptances.
“Acquisition”
shall
have the meaning assigned to such term in the first recital hereto.
“Acquisition
Agreement”
shall
have the meaning assigned to such term in the first recital hereto.
“Acquisition
Documents”
shall
mean the collective reference to the Acquisition Agreement, all material
exhibits and schedules thereto and all agreements expressly contemplated
thereby.
“Additional
Mortgage”
shall
have the meaning assigned to such term in Section 5.10(c).
“Adjusted
LIBO Rate”
shall
mean, with respect to any Eurocurrency Borrowing for any Interest Period, an
interest rate per annum equal to (a) the LIBO Rate in effect for such Interest
Period divided by (b) one minus the Statutory Reserves applicable to such
Eurocurrency Borrowing, if any.
“Adjustment
Date”
shall
have the meaning assigned to such term in the definition of “Pricing
Grid.”
“Administrative
Agent”
shall
have the meaning assigned to such term in the introductory paragraph of this
Agreement.
“Administrative
Agent Fees”
shall
have the meaning assigned to such term in Section 2.12(c).
“Administrative
Questionnaire”
shall
mean an Administrative Questionnaire in a form supplied by the Administrative
Agent.
-2-
“Affiliate”
shall
mean, when used with respect to a specified person, another person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the person specified.
“Agents”
shall
mean the Administrative Agent, the Syndication Agent and the Documentation
Agents.
“Agreement”
shall
have the meaning assigned to such term in the introductory paragraph of this
Agreement.
“Alternate
Currency”
shall
mean, with respect to any Letter of Credit, Canadian Dollars or Euros and any
other currency other than Dollars as may be acceptable to the Administrative
Agent and the Letter of Credit Issuer with respect thereto in their sole
discretion.
“Alternate
Currency Letter of Credit”
shall
mean any Letter of Credit denominated in an Alternate Currency.
“Applicable
Commitment Fee”
shall
mean for any day 0.50% per annum; provided, that on and after the first
Adjustment Date occurring after delivery of the financial statements and
certificates required by Section 5.04 upon the completion of one full fiscal
quarter of the Borrower after the Closing Date, the Applicable Commitment Fee
will be determined pursuant to the Pricing Grid.
“Applicable
Margin”
shall
mean for any day (i) with respect to any Term B Loan, 1.75% per annum in the
case of any Eurocurrency Loan and 0.75% per annum in the case of any ABR Loan
and (ii) with respect to any Revolving Facility Loan, 2.00% per annum in the
case of any Eurocurrency Loan and 1.00% per annum in the case of any ABR Loan;
provided,
that on
and after the first Adjustment Date occurring after delivery of the financial
statements and certificates required by Section 5.04 upon the completion of
one
full fiscal quarter of the Borrower after the Closing Date, the Applicable
Margin with respect to Revolving Facility Loans and Swingline Loans will be
determined pursuant to the Pricing Grid.
“Applicable
Period”
means
an Excess Cash Flow Period or an Excess Cash Flow Interim Period, as the case
may be.
“Approved
Fund”
shall
have the meaning assigned to such term in Section 9.04(b).
“Asset
Sale”
shall
mean any loss, damage, destruction or condemnation of, or any sale, transfer
or
other disposition (including any sale and leaseback of assets and any mortgage
or lease of Real Property) to any person of any asset or assets of the Borrower
or any Subsidiary.
“Assignee”
shall
have the meaning assigned to such term in Section 9.04(b).
“Assignment
and Acceptance”
shall
mean an assignment and acceptance entered into by a Lender and an Assignee,
and
accepted by the Administrative Agent and the Borrower (if required by such
assignment and acceptance), in the form of Exhibit A
or such
other form as shall be approved by the Administrative Agent.
-3-
“Availability
Period”
shall
mean the period from and including the Closing Date to but excluding the earlier
of the Revolving Facility Maturity Date and in the case of each of the Revolving
Facility Loans, Revolving Facility Borrowings, Swingline Loans, Swingline
Borrowings and Letters of Credit, the date of termination of the Revolving
Facility Commitments.
“Available
Unused Commitment”
shall
mean, with respect to a Revolving Facility Lender at any time, an amount equal
to the amount by which (a) the Revolving Facility Commitment of such Revolving
Facility Lender at such time exceeds (b) the Revolving Facility Credit Exposure
of such Revolving Facility Lender at such time; provided,
that
with respect to any Swingline Lender, the Available Unused Commitment at any
time shall be reduced by the principal amount of any Swingline Loans made by
such Swingline Lender outstanding at such time.
“Bankers’
Acceptance”
shall
mean a time draft, drawn by the beneficiary under an Acceptance Credit and
accepted by the applicable Issuing Bank upon presentation of documents by the
beneficiary of an Acceptance Credit pursuant to Section 2.05 hereof, in the
standard form for bankers’ acceptances of such Issuing Bank.
“Bank
Guarantee”
shall
mean any bank guarantee issued by an Issuing Bank for the account and on behalf
of the Borrower pursuant to Section 2.05 in such form as may be approved by
such
Issuing Bank in its reasonable discretion.
“Board”
shall
mean the Board of Governors of the Federal Reserve System of the United States
of America.
“Board
of Directors”
shall
mean, as to any person, the board of directors or other governing body of such
person, or if such person is owned or managed by a single entity, the board
of
directors or other governing body of such entity.
“Borrower”
shall
have the meaning assigned to such term in the introductory paragraph of this
Agreement.
“Borrowing”
shall
mean a group of Loans of a single Type under a single Facility and made on
a
single date and, in the case of Eurocurrency Loans, as to which a single
Interest Period is in effect.
“Borrowing
Minimum”
shall
mean $5.0 million, except in the case of Swingline Loans, $1.0
million.
“Borrowing
Multiple”
shall
mean $1.0 million, except in the case of Swingline Loans, $500,000.
“Borrowing
Request”
shall
mean a request by a Borrower in accordance with the terms of Section 2.03
and substantially in the form of Exhibit C-1.
“Budget”
shall
have the meaning assigned to such term in Section 5.04(e).
-4-
“Business
Day”
shall
mean any day that is not a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to remain closed;
provided,
that
when used in connection with a Eurocurrency Loan, the term “Business Day” shall
also exclude any day on which banks are not open for dealings in deposits in
the
applicable currency in the London interbank market.
“Capital
Expenditures”
shall
mean, for any person in respect of any period, the aggregate of all expenditures
incurred by such person during such period that, in accordance with GAAP, are
or
should be included in “additions to property, plant or equipment” or similar
items reflected in the statement of cash flows of such person, provided,
however,
that
Capital Expenditures for the Borrower and the Subsidiaries shall not
include:
(a) expenditures
to the extent they are made with proceeds of the issuance of Equity Interests
of
Holdings after the Closing Date or funds that would have constituted any Net
Proceeds under clause (a) of the definition of the term “Net Proceeds” (but
for the application of the first proviso to such clause (a)),
(b) expenditures
with proceeds of insurance settlements, condemnation awards and other
settlements in respect of lost, destroyed, damaged or condemned assets,
equipment or other property to the extent such expenditures are made to replace
or repair such lost, destroyed, damaged or condemned assets, equipment or other
property or otherwise to acquire, maintain, develop, construct, improve, upgrade
or repair assets or properties useful in the business of the Borrower and the
Subsidiaries within 15 months of receipt of such proceeds (or, if not made
within such period of 15 months, are committed to be made during such
period),
(c) interest
capitalized during such period,
(d) expenditures
that are accounted for as capital expenditures of such person and that actually
are paid for by a third party (excluding Holdings, the Borrower or any
Subsidiary thereof) and for which neither Holdings, the Borrower nor any
Subsidiary has provided or is required to provide or incur, directly or
indirectly, any consideration or obligation to such third party or any other
person (whether before, during or after such period),
(e) the
book
value of any asset owned by such person prior to or during such period to the
extent that such book value is included as a capital expenditure during such
period as a result of such person reusing or beginning to reuse such asset
during such period without a corresponding expenditure actually having been
made
in such period; provided,
that
(i) any expenditure necessary in order to permit such asset to be reused shall
be included as a Capital Expenditure during the period that such expenditure
actually is made and (ii) such book value shall have been included in Capital
Expenditures when such asset was originally acquired,
(f) the
purchase price of equipment purchased during such period to the extent the
consideration therefor consists of any combination of (i) used or surplus
equipment traded in at the time of such purchase
-5-
and
(ii) the proceeds of a concurrent sale of used or surplus equipment, in each
case, in the ordinary course of business,
(g) Investments
in respect of a Permitted Business Acquisition,
(h) the
Acquisition, or
(i) the
purchase of property, plant or equipment made within 15 months of the sale
of
any asset to the extent purchased with the proceeds of such sale (or, if not
made within such period of 15 months, to the extent committed to be made during
such period and actually made within an 18-month period from such
sale).
“Capital
Lease Obligations”
of
any
person shall mean the obligations of such person to pay rent or other amounts
under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required
to
be classified and accounted for as capital leases on a balance sheet of such
person under GAAP and, for purposes hereof, the amount of such obligations
at
any time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
“Cash
Interest Expense”
shall
mean, with respect to the Borrower and the Subsidiaries on a consolidated basis
for any period, Interest Expense for such period, less the sum of, without
duplication, (a) pay in kind Interest Expense or other noncash Interest Expense
(including as a result of the effects of purchase accounting), (b) to the extent
included in Interest Expense, the amortization of any financing fees paid by,
or
on behalf of, the Borrower or any Subsidiary, including such fees paid in
connection with the Transactions or upon entering into a Permitted Receivables
Financing, (c) the amortization of debt discounts, if any, or fees in respect
of
Swap Agreements and (d) cash interest income of Borrower and its Subsidiaries
for such period; provided,
that
Cash Interest Expense shall exclude any one time financing fees, including
those
paid in connection with the Transactions, or upon entering into a Permitted
Receivables Financing or any amendment of this Agreement.
A
“Change
in Control”
shall
be deemed to occur if:
(a) at
any
time, (i) Holdings shall fail to own, directly or indirectly, beneficially
and
of record, 100% of the issued and outstanding Equity Interests of the Borrower,
(ii) a majority of the seats (other than vacant seats) on the Board of Directors
of Holdings shall at any time be occupied by persons who were neither (A)
nominated by the Board of Directors of Holdings or a Permitted Holder, (B)
appointed by directors so nominated nor (C) appointed by a Permitted Holder,
or
(iii) a “change of control” (or similar event) shall occur under the Second Lien
Notes Indenture, the Senior Subordinated Notes Indenture, any Material
Indebtedness or any Permitted Refinancing Indebtedness in respect of any of
the
foregoing or any Disqualified Stock;
(b) at
any
time prior to a Qualified IPO, any combination of Permitted Holders shall fail
to own beneficially (within the meaning of Rule 13d-5 of the Exchange Act as
in
effect on the Closing Date), directly or indirectly, in the aggregate Equity
Interests representing at least a majority of the aggregate ordinary voting
power represented by the issued and outstanding Equity Interests of Holdings;
or
-6-
(c) at
any
time after a Qualified IPO, any person or “group” (within the meaning of
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934 as in
effect on the Closing Date), other than any combination of the Permitted Holders
or any “group” including any Permitted Holders, shall have acquired beneficial
ownership of 35% or more on a fully diluted basis of the voting interest in
Holdings’ Equity Interests and the Permitted Holders shall own, directly or
indirectly, less than such person or “group” on a fully diluted basis of the
voting interest in Holdings’ Equity Interests.
“Change
in Law”
shall
mean (a) the adoption of any law, rule or regulation after the Closing Date,
(b)
any change in law, rule or regulation or in the interpretation or application
thereof by any Governmental Authority after the Closing Date or (c) compliance
by any Lender or Issuing Bank (or, for purposes of Section 2.15(b), by any
lending office of such Lender or by such Lender’s or Issuing Bank’s holding
company, if any) with any written request, guideline or directive (whether
or
not having the force of law) of any Governmental Authority made or issued after
the Closing Date.
“Charges”
shall
have the meaning assigned to such term in Section 9.09.
“Closing
Date”
shall
mean September 20, 2006.
“Code”
shall
mean the Internal Revenue Code of 1986, as amended from time to time and the
regulations promulgated and rulings issued thereunder.
“Collateral”
shall
mean all the “Collateral” as defined in any Security Document and shall also
include the Mortgaged Properties and all other property that is subject to
any
Lien in favor of the Administrative Agent or any Subagent for the benefit of
the
Lenders pursuant to any Security Document.
“Collateral
Agreement”
shall
mean the Guarantee and Collateral Agreement, as amended, supplemented or
otherwise modified from time to time, in the form of Exhibit E,
among
Holdings, the Borrower, each Subsidiary Loan Party and the Administrative
Agent.
“Collateral
and Guarantee Requirement”
shall
mean the requirement that:
(a) on
the
Closing Date, the Administrative Agent shall have received (i) from Holdings,
the Borrower and each Subsidiary Loan Party, a counterpart of the Collateral
Agreement duly executed and delivered on behalf of such person and (ii) an
Acknowledgment and Consent in the form attached to the Collateral Agreement,
executed and delivered by each issuer of Pledged Collateral (as defined in
the
Collateral Agreement), if any, that is not a Loan Party;
(b) on
the
Closing Date, (i) the Administrative Agent shall have received (A) a pledge
of
all the issued and outstanding Equity Interests of (x) the Borrower and (y)
each
Domestic Subsidiary (other than Subsidiaries listed on Schedule 1.01(a))
owned
on the Closing Date directly by or on behalf of the Borrower or any Subsidiary
Loan Party and (B) a pledge of 100% of the outstanding nonvoting Equity
Interests and of 65% of the outstanding voting Equity Interests of each (1)
“first tier” Foreign Subsidiary directly owned by any Loan Party and (2) each
“first tier” Qualified CFC Holding Company directly owned by any Loan Party
(other than
-7-
Subsidiaries
listed on Schedule 1.01(a)) and (ii) the Administrative Agent shall have
received all certificates or other instruments (if any) representing such
Equity
Interests, together with stock powers or other instruments of transfer with
respect thereto endorsed in blank;
(c) (i)
all
Indebtedness of the Borrower and each Subsidiary having, in the case of each
instance of Indebtedness, an aggregate principal amount in excess of $5.0
million (other than (A) intercompany current liabilities incurred in the
ordinary course of business in connection with the cash management operations
of
Holdings and its Subsidiaries or (B) to the extent that a pledge of such
promissory note or instrument would violate applicable law) that is owing to
any
Loan Party shall be evidenced by a promissory note or an instrument and shall
have been pledged pursuant to the Collateral Agreement (or other applicable
Security Document as reasonably required by the Administrative Agent), and
(ii)
the Administrative Agent shall have received all such promissory notes or
instruments, together with note powers or other instruments of transfer with
respect thereto endorsed in blank;
(d) in
the
case of any person that becomes a Subsidiary Loan Party after the Closing Date,
the Administrative Agent shall have received a supplement to the Collateral
Agreement, in the form specified therein, duly executed and delivered on behalf
of such Subsidiary Loan Party;
(e) in
the
case of any person that becomes a “first tier” Foreign Subsidiary directly owned
by the Borrower or a Subsidiary Loan Party after the Closing Date, the
Administrative Agent shall have received, as promptly as practicable following
such event, a Foreign Pledge Agreement, duly executed and delivered on behalf
of
such Foreign Subsidiary and the direct parent company of such Foreign
Subsidiary;
(f) after
the
Closing Date, (i) all the outstanding Equity Interests of (A) any person that
becomes a Subsidiary Loan Party after the Closing Date and (B) subject to
Section 5.10(g), all the Equity Interests that are acquired by a Loan Party
after the Closing Date (including, without limitation, the Equity Interests
of
any Special Purpose Receivables Subsidiary established after the Closing Date),
shall have been pledged pursuant to the Collateral Agreement; provided,
that in
no event shall more than 65% of the issued and outstanding voting Equity
Interests of any “first tier” Foreign Subsidiary or any “first tier” Qualified
CFC Holding Company directly owned by such Loan Party be pledged to secure
Obligations, and in no event shall any of the issued and outstanding Equity
Interests of any Foreign Subsidiary that is not a “first tier” Foreign
Subsidiary of a Loan Party or any Qualified CFC Holding Company that is not
a
“first tier” Subsidiary of a Loan Party be pledged to secure Obligations, and
(ii) the Administrative Agent shall have received all certificates or other
instruments (if any) representing such Equity Interests, together with stock
powers or other instruments of transfer with respect thereto endorsed in
blank;
(g) except
as
otherwise contemplated by any Security Document, all documents and instruments,
including Uniform Commercial Code financing statements, required by law or
reasonably requested by the Administrative Agent to be filed, registered
-8-
or
recorded to create the Liens intended to be created by the Security Documents
(in each case, including any supplements thereto) and perfect such Liens to
the
extent required by, and with the priority required by, the Security Documents,
shall have been filed, registered or recorded or delivered to the Administrative
Agent for filing, registration or the recording on the Closing Date or, with
respect to Collateral acquired after the Closing Date, concurrently with, or
promptly following, the execution and delivery of each such Security
Document;
(h) on
the
Closing Date, the Administrative Agent shall have received (i) counterparts
of
each Mortgage to be entered into with respect to each Mortgaged Property set
forth on Schedule 1.01(b)
duly
executed and delivered by the record owner of such Mortgaged Property and
suitable for recording or filing and (ii) such other documents including, but
not limited to, any consents, agreements and confirmations of third parties,
as
the Administrative Agent may reasonably request with respect to any such
Mortgage or Mortgaged Property;
(i) on
the
Closing Date the Administrative Agent shall have received (i) a policy or
policies or marked-up unconditional binder of title insurance, as applicable,
paid for by the Borrower, issued by a nationally recognized title insurance
company insuring the Lien of each Mortgage to be entered into on the Closing
Date as a valid first Lien on the Mortgaged Property described therein, free
of
any other Liens except Permitted Liens, together with such customary
endorsements (including zoning endorsements where reasonably appropriate and
available), coinsurance and reinsurance as the Administrative Agent may
reasonably request, and with respect to any such property located in a state
in
which a zoning endorsement is not available, a zoning compliance letter from
the
applicable municipality in a form reasonably acceptable to the Administrative
Agent, and (ii) a survey of each Mortgaged Property (including all improvements,
easements and other customary matters thereon reasonably required by the
Administrative Agent), or foreign equivalent thereof, as applicable, for which
all necessary fees (where applicable) have been paid, which is (A) dated (or
redated) not earlier than six months prior to the date of delivery thereof
unless there shall have occurred within six months prior to such date of
delivery any exterior construction on the site of such Mortgaged Property,
in
which event such survey shall be dated (or redated) after the completion of
such
construction or if such construction shall not have been completed as of such
date of delivery, not earlier than 20 days prior to such date of delivery,
(B) certified by the surveyor (in a manner reasonably acceptable to the
Administrative Agent) to the Administrative Agent and the title insurance
company insuring the Mortgage, (C) complying in all respects with the
minimum detail requirements of the American Land Title Association and American
Congress of Surveying and Mapping as such requirements are in effect on the
date
of preparation of such survey and (D) sufficient for such title insurance
company to remove all standard survey exceptions from the title insurance policy
relating to such Mortgaged Property or otherwise reasonably acceptable to the
Administrative Agent;
(j) evidence
of the insurance required by the terms of the Mortgages;
-9-
(k) except
as
otherwise contemplated by any Security Document, each Loan Party shall have
obtained all consents and approvals required to be obtained by it in connection
with (i) the execution and delivery of all Security Documents (or supplements
thereto) to which it is a party and the granting by it of the Liens thereunder
and (ii) the performance of its obligations thereunder; and
(l) after
the
Closing Date, the Administrative Agent shall have received (i) such other
Security Documents as may be required to be delivered pursuant to Section 5.10,
and (ii) upon reasonable request by the Administrative Agent, evidence of
compliance with any other requirements of Section 5.10.
“Commitment
Fee”
shall
have the meaning assigned to such term in Section 2.12(a).
“Commitments”
shall
mean (a) with respect to any Lender, such Lender’s Revolving Facility Commitment
(including any Incremental Revolving Facility Commitment), Term B Loan
Commitment and Incremental Term Loan Commitment and (b) with respect to any
Swingline Lender, its Swingline Commitment.
“Conduit
Lender”
shall
mean any special purpose corporation organized and administered by any Lender
for the purpose of making Loans otherwise required to be made by such Lender
and
designated by such Lender in a written instrument; provided,
that
the designation by any Lender of a Conduit Lender shall not relieve the
designating Lender of any of its obligations to fund a Loan under this Agreement
if, for any reason, its Conduit Lender fails to fund any such Loan, and the
designating Lender (and not the Conduit Lender) shall have the sole right and
responsibility to deliver all consents and waivers required or requested under
this Agreement with respect to its Conduit Lender; provided,
further,
that no
Conduit Lender shall (a) be entitled to receive any greater amount pursuant
to Section 2.15, 2.16, 2.17 or 9.05 than the designating Lender would have
been entitled to receive in respect of the extensions of credit made by such
Conduit Lender or (b) be deemed to have any Commitment.
“Consolidated
Debt”
at
any
date shall mean the sum of (without duplication) all Indebtedness (other than
letters of credit or bank guarantees, to the extent undrawn) consisting of
Capital Lease Obligations, Indebtedness for borrowed money, Disqualified Stock
and Indebtedness in respect of the deferred purchase price of property or
services of the Borrower and the Subsidiaries determined on a consolidated
basis
on such date.
“Consolidated
Net Income”
shall
mean, with respect to any person for any period, the aggregate of the Net Income
of such person and its subsidiaries for such period, on a consolidated basis;
provided,
however,
that,
without duplication,
(i) any
net
after tax extraordinary, nonrecurring or unusual gains or losses or income
or
expense or charge (less all fees and expenses relating thereto) including,
without limitation, any severance, relocation or other restructuring expenses,
any expenses related to any reconstruction, recommissioning or reconfiguration
of fixed assets for alternative uses and fees, expenses or charges relating
to
new product lines, plant shutdown costs, acquisition integration costs, expenses
or charges related to any offering of
-10-
Equity
Interests of Holdings, any Investment, acquisition or Indebtedness permitted
to
be incurred hereunder (in each case, whether or not successful), including
any
such fees, expenses, charges or change in control payments related to the
Transactions (including any transition-related expenses incurred before, on
or
after the Closing Date), in each case, shall be excluded,
(ii) any
net
after-tax income or loss from discontinued operations and any net after-tax
gain
or loss on disposal of discontinued operations shall be excluded,
(iii) any
net
after-tax gain or loss (less all fees and expenses or charges relating thereto)
attributable to business dispositions or asset dispositions other than in the
ordinary course of business (as determined in good faith by the Board of
Directors of the Borrower) shall be excluded,
(iv) any
net
after-tax income or loss (less all fees and expenses or charges relating
thereto) attributable to the early extinguishment of indebtedness shall be
excluded,
(v) (A)
the
Net Income for such period of any person that is not a subsidiary of such
person, or is an Unrestricted Subsidiary, or that is accounted for by the equity
method of accounting, shall be included only to the extent of the amount of
dividends or distributions or other payments actually paid in cash (or to the
extent converted into cash) to the referent person or a subsidiary thereof
in
respect of such period and (B) the Net Income for such period shall include
any
ordinary course dividend distribution or other payment in cash received from
any
person in excess of the amounts included in clause (A),
(vi) Consolidated
Net Income for such period shall not include the cumulative effect of a change
in accounting principles during such period,
(vii) any
increase in amortization or depreciation or any non-cash charges resulting
from
purchase accounting in connection with the Transactions or any acquisition
that
is consummated after the Closing Date shall be excluded,
(viii) any
non-cash impairment charges resulting from the application of Statement of
Financial Accounting Standards No. 142 and 144, and the amortization of
intangibles arising pursuant to No. 141, shall be excluded,
(ix) any
non-cash expenses realized or resulting from stock option plans, employee
benefit plans or post-employment benefit plans, grants of stock appreciation
or
similar rights, stock options, restricted stock grants or other rights to
officers, directors and employees of such person or any of its subsidiaries
shall be excluded,
(x) accruals
and reserves that are established within twelve months after the Closing Date
and that are so required to be established in accordance with GAAP shall be
excluded,
-11-
(xi) non-cash
gains, losses, income and expenses resulting from fair value accounting required
by Statement of Financial Accounting Standards No. 133 shall be excluded,
and
(xii) non-cash
charges for deferred tax asset valuation allowances shall be excluded.
“Consolidated
Total Assets”
shall
mean, as of any date, the total assets of the Borrower and the consolidated
Subsidiaries, determined in accordance with GAAP, as set forth on the
consolidated balance sheet of the Borrower as of such date.
“Control”
shall
mean the possession, directly or indirectly, of the power to direct or cause
the
direction of the management or policies of a person, whether through the
ownership of voting securities, by contract or otherwise, and “Controlling”
and
“Controlled”
shall
have meanings correlative thereto.
“Covalence
Plastics”
shall
mean Covalence Specialty Materials Corp. and its subsidiaries.
“Credit
Event”
shall
have the meaning assigned to such term in Article IV.
“Cumulative
Credit”
shall
mean, at any date, an amount, not less than zero in the aggregate, determined
on
a cumulative basis equal to, without duplication:
(a) $50
million, plus:
(b) the
Cumulative Retained Excess Cash Flow Amount at such time, plus
(c) the
aggregate amount of proceeds received after the Closing Date and prior to such
time that would have constituted Net Proceeds pursuant to clause (a) of the
definition thereof except for the operation of clause (x), (y) or (z) of the
second proviso thereof (the “Below
Threshold Asset Sale Proceeds”),
plus
(d) the
cumulative amount of proceeds (including cash and the fair market value of
property other than cash) from the sale of Equity Interests of Holdings or
any
Parent Entity after the Closing Date and on or prior to such time (including
upon exercise of warrants or options) which proceeds have been contributed
as
common equity to the capital of the Borrower and common Equity Interests of
the
Borrower issued upon conversion of Indebtedness of the Borrower or any
Subsidiary owed to a person other than the Borrower or a Subsidiary not
previously applied for a purpose other than use in the Cumulative Credit;
provided,
that
this clause (d) shall exclude Permitted Cure Securities and the proceeds
thereof, sales of Equity Interests financed as contemplated by Section 6.04(e)
and any amounts used to finance the payments or distributions in respect of
any
Junior Financing pursuant to Section 6.09(b), plus
(e) 100%
of
the aggregate amount of contributions to the common capital of the Borrower
received in cash (and the fair
-12-
(f) the
principal amount of any Indebtedness (including the liquidation preference
or
maximum fixed repurchase price, as the case may be, of any Disqualified Stock)
of Borrower or any Subsidiary thereof issued after the Closing Date (other
than
Indebtedness issued to a Subsidiary), which has been converted into or exchanged
for Equity Interests (other than Disqualified Stock) in Holdings or any Parent
Entity, plus
(g) 100%
of
the aggregate amount received by Borrower or any Subsidiary in cash (and the
fair market value of property other than cash received by Borrower or any
Subsidiary) after the Closing Date from:
(A) the
sale
(other than to Borrower or any Subsidiary) of the Equity Interests of an
Unrestricted Subsidiary, or
(B) any
dividend or other distribution by an Unrestricted Subsidiary, plus
(h) in
the
event any Unrestricted Subsidiary has been redesignated as a Subsidiary or
has
been merged, consolidated or amalgamated with or into, or transfers or conveys
its assets to, or is liquidated into, Holdings, Borrower or any Subsidiary,
the
fair market value of the Investments of Holdings, Borrower or any Subsidiary
in
such Unrestricted Subsidiary at the time of such redesignation, combination
or
transfer (or of the assets transferred or conveyed, as applicable), plus
(i) an
amount
equal to any returns (including dividends, interest, distributions, returns
of
principal, profits on sale, repayments, income and similar amounts) actually
received by the Borrower or any Subsidiary in respect of any Investments made
pursuant to Section 6.04(j), minus
(j) any
amounts thereof used to make Investments pursuant to Section 6.04(b)(y) after
the Closing Date prior to such time, minus
(k) any
amounts thereof used to make Investments pursuant to Section 6.04(j)(ii) after
the Closing Date prior to such time, minus
(l) the
cumulative amount of dividends paid and distributions made pursuant to Section
6.06(e) prior to such time, minus
(m) payments
or distributions in respect of Junior Financings pursuant to Section 6.09(b)(i)
(other than payments made with proceeds from the issuance of Equity Interests
that were excluded from the calculation of the Cumulative Credit pursuant to
clause (d) above);
provided,
however,
for
purposes of Section 6.06(e), the calculation of the Cumulative Credit shall
not
include any Below Threshold Asset Sale Proceeds except to the extent they are
used as contemplated in clauses (j) and (k) above.
-13-
“Cumulative
Retained Excess Cash Flow Amount”
shall
mean, at any date, an amount, not less than zero in the aggregate, determined
on
a cumulative basis equal to:
(a) the
aggregate cumulative sum of the Retained Percentage of Excess Cash Flow for
all
Excess Cash Flow Periods ending after the Closing Date and prior to such date,
plus
(b) for
each
Excess Cash Flow Interim Period ended prior to such date but as to which the
corresponding Excess Cash Flow Period has not ended, an amount equal to the
Retained Percentage of Excess Cash Flow for such Excess Cash Flow Interim
Period, minus
(c) the
cumulative amount of all Retained Excess Cash Flow Overfundings as of such
date.
“Cure
Amount”
shall
have the meaning assigned to such term in Section 7.03(a).
“Cure
Right”
shall
have the meaning assigned to such term in Section 7.03(a).
“Current
Assets”
shall
mean, with respect to the Borrower and the Subsidiaries on a consolidated basis
at any date of determination, the sum of (a) all assets (other than cash and
Permitted Investments or other cash equivalents) that would, in accordance
with
GAAP, be classified on a consolidated balance sheet of the Borrower and the
Subsidiaries as current assets at such date of determination, other than amounts
related to current or deferred Taxes based on income or profits, and (b) in
the
event that a Permitted Receivables Financing is accounted for off balance sheet,
(x) gross accounts receivable comprising part of the Receivables Assets subject
to such Permitted Receivables Financing less (y) collections against the amounts
sold pursuant to clause (x).
“Current
Liabilities”
shall
mean, with respect to the Borrower and the Subsidiaries on a consolidated basis
at any date of determination, all liabilities that would, in accordance with
GAAP, be classified on a consolidated balance sheet of the Borrower and the
Subsidiaries as current liabilities at such date of determination, other than
(a) the current portion of any Indebtedness, (b) accruals of Interest Expense
(excluding Interest Expense that is due and unpaid), (c) accruals for current
or
deferred Taxes based on income or profits, (d) accruals, if any, of transaction
costs resulting from the Transactions, (e) accruals of any costs or
expenses related to (i) severance or termination of employees prior to the
Closing Date or (ii) bonuses, pension and other post-retirement benefit
obligations, and (f) accruals for add-backs to EBITDA included in
clauses (a)(iv) through (a)(vi) of the definition of such
term.
“Debt
Service”
shall
mean, with respect to the Borrower and the Subsidiaries on a consolidated basis
for any period, Cash Interest Expense for such period plus scheduled principal
amortization of Consolidated Debt for such period.
“Declining
Lender”
shall
have the meaning assigned to such term in Section 2.11(f)
“Default”
shall
mean any event or condition that upon notice, lapse of time or both would
constitute an Event of Default.
-14-
“Defaulting
Lender”
shall
mean any Lender with respect to which a Lender Default is in
effect.
“Designated
Non-Cash Consideration”
mean
the fair market value of non-cash consideration received by the Borrower or
one
of its Subsidiaries in connection with an Asset Sale that is so designated
as
Designated Non-Cash Consideration pursuant to a certificate of a Responsible
Officer, setting forth the basis of such valuation, less the amount of cash
equivalents received in connection with a subsequent sale of such Designated
Non-Cash Consideration.
“Disqualified
Stock”
shall
mean, with respect to any person, any Equity Interests of such person that,
by
its terms (or by the terms of any security or other Equity Interests into which
it is convertible or for which it is redeemable or exchangeable), or upon the
happening of any event or condition (a) matures or is mandatorily redeemable
(other than solely for Qualified Equity Interests), pursuant to a sinking fund
obligation or otherwise (except as a result of a change of control or asset
sale
so long as any rights of the holders thereof upon the occurrence of a change
of
control or asset sale event shall be subject to the prior repayment in full
of
the Loans and all other Obligations that are accrued and payable and the
termination of the Commitments), (b) is redeemable at the option of the holder
thereof (other than solely for Qualified Equity Interests), in whole or in
part,
(c) provides for the scheduled payments of dividends in cash, or (d) is or
becomes convertible into or exchangeable for Indebtedness or any other Equity
Interests that would constitute Disqualified Stock, in each case, prior to
the
date that is ninety-one (91) days after the Term B Facility Maturity Date;
provided,
however,
that
only the portion of the Equity Interests that so mature or are mandatorily
redeemable, are so convertible or exchangeable or are so redeemable at the
option of the holder thereof prior to such date shall be deemed to be
Disqualified Stock; provided further,
however,
that if
such Equity Interests are issued to any employee or to any plan for the benefit
of employees of the Borrower or the Subsidiaries or by any such plan to such
employees, such Equity Interests shall not constitute Disqualified Stock solely
because they may be required to be repurchased by the Borrower in order to
satisfy applicable statutory or regulatory obligations or as a result of such
employee’s termination, death or disability.
“Documentation
Agents”
shall
have the meaning assigned to such term in the introductory paragraph of this
Agreement.
“Dollar
Equivalent”
means,
at any time, (a) with respect to any amount denominated in Dollars, such amount,
and (b) with respect to any amount denominated in any currency other than
Dollars, the equivalent amount thereof in Dollars as determined by the
Administrative Agent at such time on the basis of the Spot Rate (determined
in
respect of the most recent Revaluation Date or other applicable date of
determination) for the purchase of Dollars with such currency.
“Dollars”
or
“$”
shall
mean lawful money of the United States of America.
“Domestic
Subsidiary”
shall
mean any Subsidiary that is not a Foreign Subsidiary, a Qualified CFC Holding
Company or a subsidiary listed on Schedule 1.01(a).
-15-
“EBITDA”
shall
mean, with respect to the Borrower and the Subsidiaries on a consolidated basis
for any period, the Consolidated Net Income of the Borrower and the Subsidiaries
for such period plus
(a) the
sum of (in each case without duplication and to the extent the respective
amounts described in subclauses (i) through (vii) of this clause (a)
reduced such Consolidated Net Income (and were not excluded therefrom) for
the
respective period for which EBITDA is being determined):
(i) provision
for Taxes based on income, profits or capital of the Borrower and the
Subsidiaries for such period, including, without limitation, state, franchise
and similar taxes,
(ii) Interest
Expense of the Borrower and the Subsidiaries for such period (net of interest
income of the Borrower and its Subsidiaries for such period),
(iii) depreciation
and amortization expenses of the Borrower and the Subsidiaries for such
period,
(iv) business
optimization expenses and other restructuring charges (which, for the avoidance
of doubt, shall include, without limitation, the effect of inventory
optimization programs, plant closure, retention, severance, systems
establishment costs and excess pension charges); provided,
that
with respect to each business optimization expense or other restructuring
charge, the Borrower shall have delivered to the Administrative Agent an
officers’ certificate specifying and quantifying such expense or
charge,
(v) any
other
non-cash charges; provided,
that,
for purposes of this subclause (v) of this clause (a), any non-cash
charges or losses shall be treated as cash charges or losses in any subsequent
period during which cash disbursements attributable thereto are made,
(vi) the
amount of management, consulting, monitoring, transaction and advisory fees
and
related expenses paid to the Fund or any Fund Affiliates (or any accruals
related to such fees and related expenses) during such period; provided,
that
such amount shall not exceed in any four quarter period the sum of (i) the
greater of $3.0 million and 2.00% of EBITDA for such four quarter period,
plus
(ii) the
amount of deferred fees (to the extent such fees would otherwise have been
permitted to be included in clause (i) if paid, but were not included in such
clause (i)), plus
(iii)
2.00% of the value of transactions permitted hereunder and entered into by
the
Borrower or any of the Subsidiaries with respect to which the Funds or any
Fund
Affiliates provides any of the aforementioned types of services,
and
(vii) non-operating
expenses.
minus
(b) the
sum of (without duplication and to the extent the amounts described in this
clause (b) increased such Consolidated Net Income for the respective period
for which EBITDA is being determined) non-cash items increasing Consolidated
Net
Income of the Borrower and the Subsidiaries for such period (but excluding
any
such items (A) in respect of which cash was received in a prior period or will
be received
-16-
in
a
future period or (B) which represent the reversal of any accrual of, or cash
reserve for, anticipated cash charges in any prior period).
For
purposes of determining EBITDA under this Agreement for any quarter ending
prior
to the first full quarter ending after the Closing Date, EBITDA for such fiscal
quarter shall be calculated on a Pro Forma Basis giving effect to the
Acquisition and the other Transactions occurring on the Closing
Date.
“environment”
shall
mean ambient and indoor air, surface water and groundwater (including potable
water, navigable water and wetlands), the land surface or subsurface strata,
natural resources such as flora and fauna, the workplace or as otherwise defined
in any Environmental Law.
“Environmental
Laws”
shall
mean all applicable laws (including common law), rules, regulations, codes,
ordinances, orders, decrees or judgments, promulgated or entered into by any
Governmental Authority, relating in any way to the environment, preservation
or
reclamation of natural resources, the generation, management, Release or
threatened Release of, or exposure to, any Hazardous Material or to occupational
health and safety matters (to the extent relating to the environment or
Hazardous Materials).
“Equity
Financing”
shall
mean, in connection with the consummation of the Acquisition, the purchase
or
contribution by the Permitted Holders, directly or indirectly, of cash common
equity to or of Holdings(or rollover of existing equity by the Management Group)
in an aggregate amount of not less than $480.0 million, which amount shall
be
contributed by Holdings to the Borrower as cash common equity.
“Equity
Interests”
of
any
person shall mean any and all shares, interests, rights to purchase or otherwise
acquire, warrants, options, participations or other equivalents of or interests
in (however designated) equity or ownership of such person, including any
preferred stock, any limited or general partnership interest and any limited
liability company membership interest, and any securities or other rights or
interests convertible into or exchangeable for any of the
foregoing.
“ERISA”
shall
mean the Employee Retirement Income Security Act of 1974, as the same may be
amended from time to time and any final regulations promulgated and the rulings
issued thereunder.
“ERISA
Affiliate”
shall
mean any trade or business (whether or not incorporated) that, together with
Holdings, the Borrower or a Subsidiary, is treated as a single employer under
Section 414(b) or (c) of the Code, or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.
“ERISA
Event”
shall
mean (a) any Reportable Event or
the
requirements of Section 4043(b) of ERISA apply with respect to a
Plan;
(b) the
existence with respect to any Plan of an “accumulated funding deficiency” (as
defined in Section 412 of the Code or Section 302 of ERISA), whether
or not waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan, the failure to make by its due date
a
required installment
-17-
“Eurocurrency
Borrowing”
shall
mean a Borrowing comprised of Eurocurrency Loans.
“Eurocurrency
Loan”
shall
mean any Eurocurrency Term Loan or Eurocurrency Revolving Loan.
“Eurocurrency
Revolving Facility Borrowing”
shall
mean a Borrowing comprised of Eurocurrency Revolving Loans.
“Eurocurrency
Revolving Loan”
shall
mean any Revolving Facility Loan bearing interest at a rate determined by
reference to the Adjusted LIBO Rate in accordance with the provisions of
Article II.
“Eurocurrency
Term Loan”
shall
mean any Term Loan bearing interest at a rate determined by reference to the
Adjusted LIBO Rate in accordance with the provisions of
Article II.
“Event
of Default”
shall
have the meaning assigned to such term in Section 7.01.
“Excess
Cash Flow”
shall
mean, with respect to the Borrower and its Subsidiaries on a consolidated basis
for any Applicable Period, EBITDA of the Borrower and its Subsidiaries on a
consolidated basis for such Applicable Period, minus,
without
duplication,
(a) Debt
Service for such Applicable Period,
(b) the
amount of any voluntary prepayment permitted hereunder of term Indebtedness
during such Applicable Period (other than any voluntary prepayment of the Loans,
which shall be the subject of Section 2.11(c)), so long as the amount of such
prepayment is not already reflected in Debt Service,
-18-
(c) (i)
Capital Expenditures by the Borrower and the Subsidiaries on a consolidated
basis during such Applicable Period that are paid in cash (to the extent
permitted under this Agreement) and (ii) the aggregate consideration paid in
cash during the Applicable Period in respect of Permitted Business Acquisitions
and other Investments permitted hereunder less
any
amounts received in respect thereof as a return of capital,
(d) Capital
Expenditures that the Borrower or any Subsidiary shall, during such Applicable
Period, become obligated to make but that are not made during such Applicable
Period (to the extent permitted under this Agreement); provided,
that
(i) Holdings shall deliver a certificate to the Administrative Agent not
later than 90 days after the end of such Applicable Period, signed by a
Responsible Officer of the Borrower and certifying that such Capital
Expenditures and the delivery of the related equipment will be made in the
following Applicable Period, and (ii) any amount so deducted shall not be
deducted again in a subsequent Applicable Period,
(e) Taxes
paid in cash by Holdings and its Subsidiaries on a consolidated basis during
such Applicable Period or that will be paid within six months after the close
of
such Applicable Period; provided,
that
with respect to any such amounts to be paid after the close of such Applicable
Period, (i) any amount so deducted shall not be deducted again in a subsequent
Applicable Period, and (ii) appropriate reserves shall have been established
in
accordance with GAAP,
(f) an
amount
equal to any increase in Working Capital of the Borrower and its Subsidiaries
for such Applicable Period,
(g) cash
expenditures made in respect of Swap Agreements during such Applicable Period,
to the extent not reflected in the computation of EBITDA or Interest
Expense,
(h) permitted
dividends or distributions or repurchases of its Equity Interests paid in cash
by the Borrower during such Applicable Period and permitted dividends paid
by
any Subsidiary to any person other than Holdings, the Borrower or any of the
Subsidiaries during such Applicable Period, in each case in accordance with
Section 6.06 (other than Section 6.06(e)),
(i) amounts
paid in cash during such Applicable Period on account of (A) items that
were accounted for as noncash reductions of Net Income in determining
Consolidated Net Income or as noncash reductions of Consolidated Net Income
in
determining EBITDA of the Borrower and its Subsidiaries in a prior Applicable
Period and (B) reserves or accruals established in purchase accounting,
(j) to
the
extent not deducted in the computation of Net Proceeds in respect of any asset
disposition or condemnation giving rise thereto, the amount of any mandatory
prepayment of Indebtedness (other than Indebtedness created hereunder or under
any other Loan Document), together with any interest, premium or penalties
required to be paid (and actually paid) in connection therewith,
and
-19-
(k) the
aggregate amount of items that were added to or not deducted from Net Income
in
calculating Consolidated Net Income or were added to or not deducted from
Consolidated Net Income in calculating EBITDA to the extent such items
represented a cash payment (which had not reduced Excess Cash Flow upon the
accrual thereof in a prior Applicable Period), or an accrual for a cash payment,
by the Borrower and its Subsidiaries or did not represent cash received by
the
Borrower and its Subsidiaries, in each case on a consolidated basis during
such
Applicable Period,
plus,
without
duplication,
(a) an
amount
equal to any decrease in Working Capital for such Applicable
Period,
(b) all
amounts referred to in clauses (b), (c), (d) and (h) above to the extent
funded with the proceeds of the issuance or the incurrence of Indebtedness
(including Capital Lease Obligations and purchase money Indebtedness, but
excluding, solely as relating to Capital Expenditures, proceeds of Revolving
Facility Loans), the sale or issuance of any Equity Interests (including any
capital contributions) and any loss, damage, destruction or condemnation of,
or
any sale, transfer or other disposition (including any sale and leaseback of
assets and any mortgage or lease of Real Property) to any person of any asset
or
assets, in each case to the extent there is a corresponding deduction from
Excess Cash Flow above,
(c) to
the
extent any permitted Capital Expenditures referred to in clause (d) above
and the delivery of the related equipment do not occur in the following
Applicable Period of the Borrower specified in the certificate of the Borrower
provided pursuant to clause (d) above, the amount of such Capital
Expenditures that were not so made in such following Applicable
Period,
(d) cash
payments received in respect of Swap Agreements during such Applicable Period
to
the extent (i) not included in the computation of EBITDA or (ii) such payments
do not reduce Cash Interest Expense,
(e) any
extraordinary or nonrecurring gain realized in cash during such Applicable
Period (except to the extent such gain consists of Net Proceeds subject to
Section 2.11(b)),
(f) to
the
extent deducted in the computation of EBITDA, cash interest income,
and
(g) the
aggregate amount of items that were deducted from or not added to Net Income
in
connection with calculating Consolidated Net Income or were deducted from or
not
added to Consolidated Net Income in calculating EBITDA to the extent either
(i)
such items represented cash received by the Borrower or any Subsidiary or (ii)
such items do not represent cash paid by the Borrower or any Subsidiary, in
each
case on a consolidated basis during such Applicable Period.
-20-
“Excess
Cash Flow Interim Period”
shall
mean, (x) during any Excess Cash Flow Period, any one-, two-, or three-quarter
period (a) commencing on the later of (i) the end of the immediately preceding
Excess Cash Flow Period and (ii) if applicable, the end of any prior Excess
Cash
Flow Interim Period occurring during the same Excess Cash Flow Period and (b)
ending on the last day of the most recently ended fiscal quarter (other than
the
last day of the Fiscal Year) during such Excess Cash Flow Period for which
financial statements are available and (y) during the period from the Closing
Date until the beginning of the first Excess Cash Flow Period, any period
commencing on the Closing Date and ending on the last day of the most recently
ended fiscal quarter for which financial statements are available.
“Excess
Cash Flow Period”
shall
mean each fiscal year of the Borrower, commencing with the fiscal year of the
Borrower ending on December 29, 2007.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Excluded
Indebtedness”
shall
mean all Indebtedness permitted to be incurred under Section 6.01 (other
than Section 6.01(v)).
“Excluded
Taxes”
shall
mean, with respect to the Administrative Agent, any Lender, any Issuing Bank
or
any other recipient of any payment to be made by or on account of any obligation
of the Borrower hereunder, (a) any income taxes imposed on (or measured by)
its
net income (or franchise taxes imposed in lieu of net income taxes) by the
United States of America (or any state or locality thereof) or the jurisdiction
under the laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable lending
office is located or any other jurisdiction as a result of such recipient
engaging in a trade or business in such jurisdiction for tax purposes (provided
that no such person shall be deemed to be located or engaged in a trade or
business in the United States solely as a result of lending under this
Agreement), (b) any branch profits tax or any similar tax that is imposed by
any
jurisdiction described in clause (a) above, (c) in the case of a Lender
making a Loan to the Borrower, any tax (including any backup withholding tax)
imposed by the United States (or the jurisdiction under the laws of which such
Lender is organized or in which its principal office is located or in which
its
applicable lending office is located or any other jurisdiction as a result
of
such Lender engaging in a trade or business in such jurisdiction for tax
purposes) that (x) is in effect and would apply to amounts payable hereunder
to
such Lender at the time such Lender becomes a party to such Loan to the Borrower
(or designates a new lending office), except to the extent that the assignor
to
such Lender in the case of an assignment or the Lender in the case of a
designation of a new lending office (for the absence of doubt, other than the
lending office at the time such Lender becomes a party to such Loan) was
entitled, at the time of such assignment or designation of a new lending office,
respectively, to receive additional amounts from a Loan Party with respect
to
any withholding tax pursuant to Section 2.17(a) or Section 2.17(c) or
(y) is attributable to such Lender’s failure to comply with Section 2.17(e)
or (f) with respect to such Loan and (d) any taxes that are imposed as a result
of any event occurring after the Lender becomes a Lender (other than an event
described in clause (a) or (b) of the definition of Change in Law and other
than
as a result of any actions taken by a Loan Party) in the case of clause (a),
(b), (c) and (d), together with any and all interest and penalties related
thereto.
-21-
“Existing
Credit Agreement”
means
that certain Second Amended and Restated Credit and Guaranty Agreement, dated
as
of August 9, 2004, as amended or amended and restated from time to time, by
and
among Xxxxx Plastics Corporation, BPC Holding Corporation, certain subsidiaries
of Xxxxx Plastics Corporation, Deutsche Bank Trust Company Americas, as
administrative agent, Xxxxxxx Xxxxx Credit Partners L.P., JPMorgan Chase Bank,
N.A., Fleet National Bank and the Royal Bank of Scotland.
“Existing
Letters of Credit”
means
those Standby Letters of Credit or Trade Letters of Credit issued and
outstanding as of the date hereof set forth on Schedule 1.01(c).
“Facility”
shall
mean the respective facility and commitments utilized in making Loans and credit
extensions hereunder, it being understood that as of the date of this Agreement
there are two Facilities, i.e.,
the
Term B Facility and the Revolving Facility (and no Incremental Term Facility
or
Incremental Revolving Facility Commitments), and thereafter, may include the
Incremental Term Facility and Incremental Revolving Facility
Commitments.
“Federal
Funds Effective Rate”
shall
mean, for any day, the rate per annum equal to the weighted average of the
rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day;
provided
that (a)
if such day is not a Business Day, the Federal Funds Effective Rate for such
day
shall be such rate on such transactions on the next preceding Business Day
as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Effective
Rate
for such day shall be the average rate (rounded upward, if necessary, to a
whole
multiple of 1/100 of 1%) charged to Credit Suisse on such day on such
transactions as determined by the Administrative Agent.
“Fee
Letter”
shall
mean that certain Amended and Restated Fee Letter dated as of August 2, 2006
by
and among the Borrower, Credit Suisse Securities (USA) LLC, Credit Suisse,
Deutsche Bank Trust Company Americas, Deutsche Bank Cayman Islands Branch and
Deutsche Bank Securities Inc.
“Fees”
shall
mean the Commitment Fees, the L/C Participation Fees, the Issuing Bank Fees
and
the Administrative Agent Fees.
“Financial
Officer”
of
any
person shall mean the Chief Financial Officer, principal accounting officer,
Treasurer, Assistant Treasurer or Controller of such person.
“Financial
Performance Covenant”
shall
mean the covenant of the Borrower set forth in Section 6.11.
“First
Lien Debt”
at
any
date shall mean (i) the aggregate principal amount of Consolidated Debt of
the
Borrower and its Subsidiaries outstanding at such date that consists of, without
duplication, Indebtedness that in each case is then secured by first priority
Liens on property or assets of the Borrower and its Subsidiaries (other than
property or assets held in a defeasance or similar trust or arrangement for
the
benefit of the Indebtedness secured thereby), less (ii) without duplication,
the
Unrestricted Cash and Permitted Investments of the Borrower and its Subsidiaries
on such date.
-22-
“Foreign
Pledge Agreement”
shall
mean a pledge agreement with respect to the Pledged Collateral that constitutes
Equity Interests of a “first tier” Foreign Subsidiary, governed by the law of
the jurisdiction of organization of such Foreign Subsidiary, in form and
substance reasonably satisfactory to the Administrative Agent; provided,
that in
no event shall more than 65% of the issued and outstanding voting Equity
Interests of such Foreign Subsidiary be pledged to secure Obligations of the
Borrower.
“Foreign
Subsidiary”
shall
mean any Subsidiary that is incorporated or organized under the laws of any
jurisdiction other than the United States of America, any State thereof or
the
District of Columbia.
“Funds”
shall
have the meaning assigned to such term in the first recital hereto.
“Fund
Affiliates”
shall
mean (i) each Affiliate of a Fund, (ii) any individual who is a partner or
employee of Apollo Management, L.P., Apollo Management IV, L.P. or Apollo
Management V, L.P. and (iii) Xxxxxx BPC Investment Holdings, LP.
“Fund
Termination Fees”
shall
have the meaning specified in Section 6.07(b)(xiv).
“GAAP”
shall
mean generally accepted accounting principles in effect from time to time in
the
United States, applied on a consistent basis, subject to the provisions of
Section 1.02; provided
that any
reference to the application of GAAP in Sections 3.13(b), 3.20, 5.03, 5.07
and
6.02(e) to a Foreign Subsidiary (and not as a consolidated Subsidiary of the
Borrower) shall mean generally accepted accounting principles in effect from
time to time in the jurisdiction of organization of such Foreign
Subsidiary.
“Governmental
Authority”
shall
mean any federal, state, local or foreign court or governmental agency,
authority, instrumentality or regulatory or legislative body.
“Guarantee”
of
or
by any person (the “guarantor”)
shall
mean (a) any obligation, contingent or otherwise, of the guarantor guaranteeing
or having the economic effect of guaranteeing any Indebtedness or other
obligation of any other person (the “primary
obligor”)
in any
manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation
(whether arising by virtue of partnership arrangements, by agreement to keep
well, to purchase assets, goods, securities or services, to take-or-pay or
otherwise) or to purchase (or to advance or supply funds for the purchase of)
any security for the payment of such Indebtedness or other obligation, (ii)
to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof,
(iii)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, (iv) entered into for
the
purpose of assuring in any other manner the holders of such Indebtedness or
other obligation of the payment thereof or to protect such holders against
loss
in respect thereof (in whole or in part) or (v) as an account party in respect
of any letter of credit, bank guarantee or other letter of guaranty issued
to
support such Indebtedness or other obligation, or (b) any Lien on any assets
of
the guarantor securing any Indebtedness (or any existing right, contingent
or
otherwise, of
-23-
“guarantor”
shall
have the meaning assigned to such term in the definition of the term
“Guarantee.”
“Hazardous
Materials”
shall
mean all pollutants, contaminants, wastes, chemicals, materials, substances
and
constituents, including, without limitation, explosive or radioactive substances
or petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls or radon gas, of any nature subject to
regulation or which can give rise to liability under any Environmental
Law.
“Holdings”
shall
have the meaning assigned to such term in the introductory paragraph of this
Agreement.
“Immaterial
Subsidiary”
shall
mean any Subsidiary that, as of the last day of the fiscal quarter of the
Borrower most recently ended, (a) did not have assets with a value in excess
of
5.0% of the Consolidated Total Assets or revenues representing in excess of
5.0%
of total revenues of the Borrower and the Subsidiaries on a consolidated basis
as of such date and (b) when taken together with all other Immaterial
Subsidiaries as of such date, did not have assets with a value in excess of
10.0% of the Consolidated Total Assets or revenues representing in excess of
10.0% of total revenues of the Borrower and the Subsidiaries on a consolidated
basis as of such date. Each Immaterial Subsidiary as of the Closing Date shall
be set forth in Schedule 1.01(d).
“Increased
Amount Date”
shall
have the meaning assigned to such term in Section 2.21.
“Incremental
Amount”
shall
mean, at any time, the excess, if any, of (a) $200.0 million over
(b) the
aggregate amount of all Incremental Term Loan Commitments and Incremental
Revolving Facility Commitments established prior to such time pursuant to
Section 2.21.
“Incremental
Assumption Agreement”
shall
mean an Incremental Assumption Agreement in form and substance reasonably
satisfactory to the Administrative Agent, among the Borrower, the Administrative
Agent and one or more Incremental Term Lenders and/or Incremental Revolving
Facility Lenders.
-24-
“Incremental
Revolving Facility Commitment”
shall
mean any increased or incremental Revolving Facility Commitment provided
pursuant to Section 2.21.
“Incremental
Revolving Facility Lender”
shall
mean a Lender with a Revolving Facility Commitment or an outstanding Revolving
Facility Loan as a result of an Incremental Revolving Facility
Commitment.
“Incremental
Term Borrowing”
shall
mean a Borrowing comprised of Incremental Term Loans.
“Incremental
Term Facility”
shall
mean the Incremental Term Loan Commitments and the Incremental Term Loans made
hereunder.
“Incremental
Term Facility Maturity Date”
shall
mean, with respect to any series or tranche of Incremental Term Loans
established pursuant to an Incremental Assumption Agreement, the maturity date
for as set forth in such Incremental Assumption Agreement.
“Incremental
Term Lender”
shall
mean a Lender with an Incremental Term Loan Commitment or an outstanding
Incremental Term Loan.
“Incremental
Term Loan Commitment”
shall
mean the commitment of any Lender, established pursuant to Section 2.21, to
make Incremental Term Loans to the Borrower.
“Incremental
Term Loan Installment Date”
shall
have, with respect to any series or tranche of Incremental Term Loans
established pursuant to an Incremental Assumption Agreement, the meaning
assigned to such term in Section 2.10(a)(ii).
“Incremental
Term Loans”
shall
mean Term Loans made by one or more Lenders to the Borrower pursuant to Section
2.01(c). Incremental Term Loans may be made in the form of additional Term
B
Loans or, to the extent permitted by Section 2.21 and provided for in the
relevant Incremental Assumption Agreement, Other Term Loans.
“Indebtedness”
of
any
person shall mean, without duplication, (a) all obligations of such person
for
borrowed money, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
under conditional sale or other title retention agreements relating to property
or assets purchased by such person, (d) all obligations of such person issued
or
assumed as the deferred purchase price of property or services, to the extent
that the same would be required to be shown as a long term liability on a
balance sheet prepared in accordance with GAAP, (e) all Capital Lease
Obligations of such person, (f) all net payments that such person would have
to
make in the event of an early termination, on the date Indebtedness of such
person is being determined, in respect of outstanding Swap Agreements, (g)
the
principal component of all obligations, contingent or otherwise, of such person
as an account party in respect of letters of credit and bank guarantees, (h)
the
principal component of all obligations of such person in respect of bankers’
acceptances, (i) all Guarantees by such person of Indebtedness described in
clauses (a) to (h) above) and (j) the amount of all obligations of such person
with respect to the redemption, repayment or other repurchase of any
Disqualified Stock (excluding accrued dividends that have not increased the
liquidation preference of such Disqualified Stock); provided,
that
Indebtedness shall not
-25-
“Indemnified
Taxes”
shall
mean all Taxes other than Excluded Taxes.
“Indemnitee”
shall
have the meaning assigned to such term in Section 9.05(b).
“Ineligible
Institution”
shall
mean the persons identified in writing to the Administrative Agent by the
Borrower on the Closing Date, and as may be identified in writing to the
Administrative Agent by the Borrower from time to time thereafter, with the
written consent of the Administrative Agent, by delivery of a notice thereof
to
the Administrative Agent setting forth such person or persons (or the person
or
persons previously identified to the Administrative Agent that are to be no
longer considered “Ineligible Institutions”).
“Information”
shall
have the meaning assigned to such term in Section 3.14(a).
“Information
Memorandum”
shall
mean the Confidential Information Memorandum dated August 2006, as modified
or
supplemented prior to the Closing Date.
“Initial
Pro Forma Adjustment”
shall
mean an amount equal to $3.125 million for each quarterly period ending
September 30, 2006 and December 31, 2006.
“Intercreditor
Agreement”
shall
mean the Intercreditor Agreement, dated as of September 20, 2006, by and among
Credit Suisse, Cayman Islands Branch, as first lien agent, Xxxxx Fargo Bank,
N.A., as trustee, Holdings, the Borrower and the Subsidiary Loan Parties, as
in
effect on the Closing Date.
“Interest
Election Request”
shall
mean a request by the Borrower to convert or continue a Term Borrowing or
Revolving Facility Borrowing in accordance with Section 2.07.
“Interest
Expense”
shall
mean, with respect to any person for any period, the sum of (a) gross interest
expense of such person for such period on a consolidated basis, including (i)
the amortization of debt discounts, (ii) the amortization of all fees (including
fees with respect to Swap Agreements) payable in connection with the incurrence
of Indebtedness to the extent included in interest expense and (iii) the portion
of any payments or accruals with respect to Capital Lease Obligations allocable
to interest expense, (b) capitalized interest of such person, and (c)
commissions, discounts, yield and other fees and charges incurred in connection
with any Permitted Receivables Financing which are payable to any person other
than the Borrower or a Subsidiary Loan Party. For purposes of the foregoing,
gross interest
-26-
“Interest
Payment Date”
shall
mean, (a) with respect to any Eurocurrency Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the
case
of a Eurocurrency Borrowing with an Interest Period of more than three months’
duration, each day that would have been an Interest Payment Date had successive
Interest Periods of three months’ duration been applicable to such Borrowing
and, in addition, the date of any refinancing or conversion of such Borrowing
with or to a Borrowing of a different Type and (b) with respect to any ABR
Loan
the last Business Day of each March, June, September and December.
“Interest
Period”
shall
mean, as to any Eurocurrency Borrowing, the period commencing on the date of
such Borrowing or on the last day of the immediately preceding Interest Period
applicable to such Borrowing, as applicable, and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the
last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter (or 9 or
12
months, if at the time of the relevant Borrowing, all relevant Lenders consent
to such interest periods), as the Borrower may elect, or the date any
Eurocurrency Borrowing is converted to an ABR Borrowing in accordance with
Section 2.07 or repaid or prepaid in accordance with Section 2.09,
2.10 or 2.11; provided,
however,
that if
any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
“Investment”
shall
have the meaning assigned to such term in Section 6.04.
“Issuing
Bank”
shall
mean Credit Suisse and each other Issuing Bank designated pursuant to
Section 2.05(k), in each case in its capacity as an issuer of Letters of
Credit hereunder, and its successors in such capacity as provided in
Section 2.05(i). An Issuing Bank may, in its discretion, arrange for one or
more Letters of Credit to be issued by Affiliates of such Issuing Bank, in
which
case the term “Issuing Bank” shall include any such Affiliate with respect to
Letters of Credit issued by such Affiliate.
“Issuing
Bank Fees”
shall
have the meaning assigned to such term in Section 2.12(b).
“Joint
Lead Arrangers”
shall
mean Citigroup Global Markets Inc. and Credit Suisse, in their capacities as
joint lead arrangers.
“Junior
Financing”
shall
have the meaning assigned to such term in Section 6.09(b).
“L/C
Disbursement”
shall
mean (i) a payment or disbursement made by an Issuing Bank pursuant to a Letter
of Credit (other than an Acceptance Credit) or (ii) a payment of a Bankers’
Acceptance upon presentation.
-27-
“L/C
Participation Fee”
shall
have the meaning assigned such term in Section 2.12(b).
“Lender”
shall
mean each financial institution listed on Schedule 2.01,
as well
as any person that becomes a “Lender” hereunder pursuant to
Section 9.04.
“Lender
Default”
shall
mean (i) the refusal (which has not been retracted) of a Lender to make
available its portion of any Borrowing, to acquire participations in a Swingline
Loan pursuant to Section 2.04 or to fund its portion of any unreimbursed
payment under Section 2.05(e), or (ii) a Lender having notified the
Borrower and/or the Administrative Agent in writing that it does not intend
to
comply with its obligations under Section 2.04, 2.05 or 2.06.
“Letter
of Credit”
shall
mean any letter of credit and any bank guarantee issued pursuant to
Section 2.05, including any Acceptance Credit and any Alternate Currency
Letter of Credit. Each Existing Letter of Credit shall be deemed to constitute
a
Letter of Credit issued hereunder on the Closing Date for all purposes of the
Loan Documents.
“Letter
of Credit Commitment”
shall
mean, with respect to each Issuing Bank, the commitment of such Issuing Bank
to
issue Letters of Credit pursuant to Section 2.05.
“Letter
of Credit Sublimit”
shall
mean the aggregate Letter of Credit Commitments of the Issuing Banks, in an
amount not to exceed $50.0 million (or the equivalent thereof in an Alternate
Currency).
“LIBO
Rate”
shall
mean, with respect to any Eurocurrency Borrowing for any Interest Period, the
rate per annum equal to the British Bankers Association LIBOR Rate
(“BBA
LIBOR”),
as
published by Bloomberg (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time
to
time) at approximately 11:00 a.m., London time, two Business Days prior to
the
commencement of such Interest Period, for Dollar deposits (for delivery on
the
first day of such Interest Period) with a term equivalent to such Interest
Period; provided,
that if
such rate is not available at such time for any reason, then the “LIBO Rate” for
such Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery
on
the first day of such Interest Period in same day funds in the approximate
amount of the Eurocurrency Rate Loan being made, continued or converted by
Credit Suisse and with a term equivalent to such Interest Period would be
offered by Credit Suisse’s London Branch to major banks in the London interbank
Eurocurrency market at their request at approximately 11:00 a.m. (London time)
two Business Days prior to the commencement of such Interest
Period.
“Lien”
shall
mean, with respect to any asset, (a) any mortgage, deed of trust, lien,
hypothecation, pledge, charge, security interest or similar encumbrance in
or on
such asset and (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset, provided, that in no event shall an operating lease
or
an agreement to sell be deemed to constitute a Lien.
-28-
“Loan
Documents”
shall
mean this Agreement, the Letters of Credit, the Security Documents, the
Intercreditor Agreement and any Note issued under Section 2.09(e), and
solely for the purposes of Sections 4.02 and 7.01 hereof, the Fee
Letter.
“Loan
Parties”
shall
mean Holdings, the Borrower and the Subsidiary Loan Parties.
“Loans”
shall
mean the Term B Loans, the Incremental Term Loans (if any), the Revolving
Facility Loans and the Swingline Loans.
“Local
Time”
shall
mean New York City time.
“Majority
Lenders”
of
any
Facility shall mean, at any time, Lenders under such Facility having Loans
and
unused Commitments representing more than 50% of the sum of all Loans
outstanding under such Facility and unused Commitments under such Facility
at
such time.
“Management
Group”
means
the group consisting of the directors, executive officers and other key
management personnel of the Borrower, Holdings and their Subsidiaries, as the
case may be, on the Closing Date together with (a) any new directors whose
election by such boards of directors or whose nomination for election by the
shareholders of the Borrower or Holdings, as the case may be, was approved
by a
vote of a majority of the directors of the Borrower or Holdings, as the case
may
be, then still in office who were either directors on the Closing Date or whose
election or nomination was previously so approved and (b) executive officers
and
other key management personnel of the Borrower or Holdings and their
Subsidiaries, as the case may be, hired at a time when the directors on the
Closing Date together with the directors so approved constituted a majority
of
the directors of the Borrower or Holdings, as the case may be.
“Margin
Stock”
shall
have the meaning assigned to such term in Regulation U.
“Material
Adverse Effect”
shall
mean a material adverse effect on the business, property, operations or
condition of the Borrower and its Subsidiaries, taken as a whole, or the
validity or enforceability of any of the material Loan Documents or the rights
and remedies of the Administrative Agent and the Lenders thereunder;
provided,
however,
that
solely for purposes of determining whether the condition in Section 4.01(b)
has
been satisfied in connection with the first Credit Event on the Closing Date,
any reference to “Material Adverse Effect” in any of the representations and
warranties referred to in Section 4.01(b) shall mean, “Company Material Adverse
Effect” as defined in the Acquisition Agreement.
“Material
Indebtedness”
shall
mean Indebtedness (other than Loans and Letters of Credit) of any one or more
of
Holdings, the Borrower or any Subsidiary in an aggregate principal amount
exceeding $20.0 million.
“Material
Subsidiary”
shall
mean any Subsidiary other than Immaterial Subsidiaries.
“Maximum
Rate”
shall
have the meaning assigned to such term in Section 9.09.
-29-
“Moody’s”
shall
mean Xxxxx’x Investors Service, Inc.
“Mortgaged
Properties”
shall
mean the Real Properties owned in fee by the Loan Parties that are set forth
on
Schedule 1.01(b)
and each
additional Real Property encumbered by a Mortgage pursuant to
Section 5.10.
“Mortgages”
shall
mean, collectively, the mortgages, trust deeds, deeds of trust, deeds to secure
debt, assignments of leases and rents, and other security documents delivered
with respect to Mortgaged Properties, each substantially in the form of
Exhibit D
(with
such changes as are reasonably consented to by the Administrative Agent to
account for local law matters), as amended, supplemented or otherwise modified
from time to time.
“Multiemployer
Plan”
shall
mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to
which the Borrower, Holdings or any Subsidiary or any ERISA Affiliate (other
than one considered an ERISA Affiliate only pursuant to subsection (m) or
(o) of Code Section 414) is making or accruing an obligation to make
contributions, or has within any of the preceding six plan years made or accrued
an obligation to make contributions.
“Net
Income”
shall
mean, with respect to any person, the net income (loss) of such person,
determined in accordance with GAAP and before any reduction in respect of
preferred stock dividends.
“Net
Proceeds”
shall
mean:
(a) 100%
of
the cash proceeds actually received by the Borrower or any Subsidiary Loan
Party
(including any cash payments received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise and including casualty insurance settlements and
condemnation awards, but only as and when received) from any Asset Sale (other
than those pursuant to Section 6.05(a), (b), (c), (d) (except as contemplated
by
Section 6.03(b)(ii)), (e), (f), (h), (i) or (j)), net of (i) attorneys’ fees,
accountants’ fees, investment banking fees, survey costs, title insurance
premiums, and related search and recording charges, transfer taxes, deed or
mortgage recording taxes, required debt payments and required payments of other
obligations relating to the applicable asset to the extent such debt or
obligations are secured by a Lien permitted hereunder (other than pursuant
to
the Loan Documents) on such asset, other customary expenses and brokerage,
consultant and other customary fees actually incurred in connection therewith,
(ii) Taxes paid or payable as a result thereof, and (iii) the amount of any
reasonable reserve established in accordance with GAAP against any adjustment
to
the sale price or any liabilities (other than any taxes deducted pursuant to
clause (i) above) (x) related to any of the applicable assets and (y) retained
by the Borrower or any of the Subsidiaries including, without limitation,
pension and other post-employment benefit liabilities and liabilities related
to
environmental matters or against any indemnification obligations (however,
the
amount of any subsequent reduction of such reserve (other than in connection
with a payment in respect of any such liability) shall be deemed to be Net
Proceeds of such Asset Sale occurring on the date of such reduction);
provided,
that,
if no Event of Default exists and the Borrower shall deliver a certificate
of a
Responsible Officer of the Borrower to the Administrative Agent promptly
following receipt of any
-30-
such
proceeds setting forth the Borrower’s intention to use any portion of such
proceeds, to acquire, maintain, develop, construct, improve, upgrade or repair
assets useful in the business of the Borrower and the Subsidiaries or to make
investments in Permitted Business Acquisitions, in each case within 15 months
of
such receipt, such portion of such proceeds shall not constitute Net Proceeds
except to the extent not, within 15 months of such receipt, so used or
contractually committed to be so used (it being understood that if any portion
of such proceeds are not so used within such 15-month period but within such
15-month period are contractually committed to be used, such proceeds shall
be
used within a period of 18 months from the receipt thereof, then, upon the
termination of such contract or expiration of the 18-month period, such
remaining portion shall constitute Net Proceeds as of the date of such
termination or expiry without giving effect to this proviso); provided,
further,
that
(x) no proceeds realized in a single transaction or series of related
transactions shall constitute Net Proceeds unless such proceeds shall exceed
$5.0 million, (y) no proceeds shall constitute Net Proceeds in any fiscal year
until the aggregate amount of all such proceeds in such fiscal year shall exceed
$10.0 million,
and (z) at any time during the 18-month reinvestment period contemplated by
the
immediately preceding proviso above, if, on a Pro Forma Basis after giving
effect to the Asset Sale and the application of the proceeds thereof, the Total
Net First Lien Leverage Ratio is less than or equal to 2.00 to 1.00, up to
$75.0
million of such proceeds shall not constitute Net Proceeds; and
(b) 100%
of
the cash proceeds from the incurrence, issuance or sale by the Borrower or
any
Subsidiary Loan Party of any Indebtedness (other than Excluded Indebtedness),
net of all taxes and fees (including investment banking fees), commissions,
costs and other expenses, in each case incurred in connection with such issuance
or sale.
For
purposes of calculating the amount of Net Proceeds, fees, commissions and other
costs and expenses payable to the Borrower or any Affiliate of the Borrower
shall be disregarded, except for financial advisory fees customary in type
and
amount paid to Affiliates of the Fund and otherwise not prohibited from being
paid hereunder.
“Non-Consenting
Lender”
shall
have the meaning assigned to such term in Section 2.19(c).
“Note”
shall
have the meaning assigned to such term in Section 2.09(e).
“Obligations”
shall
mean all amounts owing to the Administrative Agent, or any Lender pursuant
to
the terms of this Agreement or any other Loan Document.
“Other
Revolving Loans”
shall
have the meaning assigned to such term in Section 2.21.
“Other
Taxes”
shall
mean any and all present or future stamp or documentary taxes or any other
excise, transfer, sales, property, intangible, mortgage recording, or similar
taxes, charges or levies arising from any payment made hereunder or from the
execution,
-31-
“Other
Term Loans”
shall
have the meaning assigned to such term in Section 2.21.
“Overdraft
Line”
shall
have the meaning assigned to such term in Section 6.01(w).
“Parent
Entity”
means
any direct or indirect parent of Holdings.
“Participant”
shall
have the meaning assigned to such term in Section 9.04(c).
“PBGC”
shall
mean the Pension Benefit Guaranty Corporation referred to and defined in
ERISA.
“Perfection
Certificate”
shall
mean the Perfection Certificate with respect to Borrower and the other Loan
Parties in a form reasonably satisfactory to the Administrative
Agent.
“Permitted
Business Acquisition”
shall
mean any acquisition of all or substantially all the assets of, or all the
Equity Interests (other than directors’ qualifying shares) in, or merger or
consolidation with, a person or division or line of business of a person (or
any
subsequent investment made in a person, division or line of business previously
acquired in a Permitted Business Acquisition), if immediately after giving
effect thereto: (i) no Event of Default shall have occurred and be continuing
or
would result therefrom; (ii) all transactions related thereto shall be
consummated in accordance with applicable laws; (iii) with respect to any such
acquisition or investment with a fair market value in excess of $20.0 million,
the Borrower and its Subsidiaries shall be in Pro Forma Compliance after giving
effect to such acquisition or investment and any related transactions; (iv)
any
acquired or newly formed Subsidiary shall not be liable for any Indebtedness
except for Indebtedness permitted by Section 6.01; (v) to the extent required
by
Section 5.10, any person acquired in such acquisition, if acquired by the
Borrower or a Domestic Subsidiary, shall be merged into the Borrower or a
Subsidiary Loan Party or become upon consummation of such acquisition a
Subsidiary Loan Party, and (vi) the aggregate amount of such acquisitions and
investments in assets that are not owned by the Borrower or Subsidiary Loan
Parties or in Equity Interests in persons that are not Subsidiary Loan Parties
or persons that do not become Subsidiary Loan Parties upon consummation of
such
acquisition shall not exceed the greater (x) 3.50% of Consolidated Total Assets
as of the end of the fiscal quarter immediately prior to the date of such
acquisition or investment for which financial statements have been delivered
pursuant to Section 5.04 and (y) $75.0 million.
“Permitted
Cure Securities”
shall
mean any equity securities of Holdings other than Disqualified Stock (a) which
have no mandatory redemption, repurchase or similar requirements and (b) upon
which all dividends or distributions (if any) shall, prior to 91 days after
the
Term B Facility Maturity Date, be payable solely in additional shares of such
equity security.
-32-
“Permitted
Holder”
shall
mean each of (i) the Funds and the Fund Affiliates, and (ii) the Management
Group.
“Permitted
Investments”
shall
mean:
(a) direct
obligations of the United States of America or any member of the European Union
or any agency thereof or obligations guaranteed by the United States of America
or any member of the European Union or any agency thereof, in each case with
maturities not exceeding two years;
(b) time
deposit accounts, certificates of deposit and money market deposits maturing
within 180 days of the date of acquisition thereof issued by a bank or trust
company that is organized under the laws of the United States of America, any
state thereof or any foreign country recognized by the United States of America
having capital, surplus and undivided profits in excess of $250 million and
whose long-term debt, or whose parent holding company’s long-term debt, is rated
A (or such similar equivalent rating or higher by at least one nationally
recognized statistical rating organization (as defined in Rule 436 under
the Securities Act));
(c) repurchase
obligations with a term of not more than 180 days for underlying securities
of
the types described in clause (a) above entered into with a bank meeting
the qualifications described in clause (b) above;
(d) commercial
paper, maturing not more than one year after the date of acquisition, issued
by
a corporation (other than an Affiliate of the Borrower) organized and in
existence under the laws of the United States of America or any foreign country
recognized by the United States of America with a rating at the time as of
which
any investment therein is made of P-1 (or higher) according to Moody’s, or A-1
(or higher) according to S&P;
(e) securities
with maturities of two years or less from the date of acquisition issued or
fully guaranteed by any State, commonwealth or territory of the United States
of
America, or by any political subdivision or taxing authority thereof, and rated
at least A by S&P or A by Xxxxx’x;
(f) shares
of
mutual funds whose investment guidelines restrict 95% of such funds’ investments
to those satisfying the provisions of clauses (a) through (e)
above;
(g) money
market funds that (i) comply with the criteria set forth in Rule 2a-7 under
the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by
Moody’s and (iii) have portfolio assets of at least $5,000.0 million;
and
(h) time
deposit accounts, certificates of deposit and money market deposits (in each
case with or from a bank meeting the qualifications described in clause (b)
above) in an aggregate face amount not in excess of 0.5% of the total assets
of
the Borrower and the Subsidiaries, on a consolidated basis, as of the end of
the
Borrower’s most recently completed fiscal year; and
-33-
(i) instruments
equivalent to those referred to in clauses (a) through (h) above denominated
in
any foreign currency comparable in credit quality and tenor to those referred
to
above and commonly used by corporations for cash management purposes in any
jurisdiction outside the United States to the extent reasonably required in
connection with any business conducted by any Subsidiary organized in such
jurisdiction.
“Permitted
Liens”
shall
have the meaning assigned to such term in Section 6.02.
“Permitted
Receivables Documents”
shall
mean all documents and agreements evidencing, relating to or otherwise governing
a Permitted Receivables Financing.
“Permitted
Receivables Financing”
shall
mean one or more transactions pursuant to which (i) Receivables Assets or
interests therein are sold to or financed by one or more Special Purpose
Receivables Subsidiaries, and (ii) such Special Purpose Receivables Subsidiaries
finance their acquisition of such Receivables Assets or interests therein,
or
the financing thereof, by selling or borrowing against Receivables Assets;
provided that (A) recourse to the Borrower or any Subsidiary (other than the
Special Purpose Receivables Subsidiaries) in connection with such transactions
shall be limited to the extent customary for similar transactions in the
applicable jurisdictions (including, to the extent applicable, in a manner
consistent with the delivery of a “true sale”/“absolute transfer” opinion with
respect to any transfer by the Borrower or any Subsidiary (other than a Special
Purpose Receivables Subsidiary)), and (B) the aggregate Receivables Net
Investment since the Closing Date shall not exceed $100 million at any
time.
“Permitted
Refinancing Indebtedness”
shall
mean any Indebtedness issued in exchange for, or the net proceeds of which
are
used to extend, refinance, renew, replace, defease or refund (collectively,
to
“Refinance”),
the
Indebtedness being Refinanced (or previous refinancings thereof constituting
Permitted Refinancing Indebtedness); provided,
that
(a) the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted
value, if applicable) of the Indebtedness so Refinanced (plus unpaid accrued
interest and premium thereon and underwriting discounts, fees, commissions
and
expenses), (b) except with respect to Section 6.01(i), the average life to
maturity of such Permitted Refinancing Indebtedness is greater than or equal
to
the earlier of (i) the weighted average life to maturity of the Indebtedness
being Refinanced and (ii) 90 days after the Term B Facility Maturity Date,
(c)
if the Indebtedness being Refinanced is subordinated in right of payment to
the
Obligations under this Agreement, such Permitted Refinancing Indebtedness shall
be subordinated in right of payment to such Obligations on terms at least as
favorable to the Lenders as those contained in the documentation governing
the
Indebtedness being Refinanced, (d) no Permitted Refinancing Indebtedness shall
have different obligors, or greater guarantees or security, than the
Indebtedness being Refinanced and (e) if the Indebtedness being Refinanced
is
secured by any collateral (whether equally and ratably with, or junior to,
the
Secured Parties or otherwise), such Permitted Refinancing Indebtedness may
be
secured by such collateral (including in respect of working capital facilities
of Foreign Subsidiaries otherwise permitted under this Agreement only, any
collateral pursuant to after-acquired property clauses to the extent any such
collateral secured the Indebtedness being Refinanced) on terms no less favorable
to the Secured Parties than those contained in the documentation governing
the
Indebtedness being Refinanced; provided further,
that
with respect to a Refinancing of
-34-
“person”
shall
mean any natural person, corporation, business trust, joint venture,
association, company, partnership, limited liability company or government,
individual or family trusts, or any agency or political subdivision
thereof.
“Plan”
shall
mean any employee pension benefit plan, as such term is defined in Section
3(2)
of ERISA, (other than a Multiemployer Plan), (i) subject to the provisions
of
Title IV of ERISA, (ii) sponsored or maintained (at the time of determination
or
at any time within the five years prior thereto) by Holdings, the Borrower
or
any ERISA Affiliate, or (iii) in respect of which Holdings, the Borrower, any
Subsidiary or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an “employer” as defined in
Section 3(5) of ERISA.
“Platform”
shall
have the meaning assigned to such term in Section 9.17(b).
“Pledged
Collateral”
shall
have the meaning assigned to such term in the Collateral Agreement.
“Pricing
Grid”
shall
mean, with respect to the Revolving Facility Loans, the table set forth below:
|
Total
Net First Lien
Leverage
Ratio
|
Applicable
Margin for
ABR
Loans
|
Applicable
Margin for
Eurocurrency
Loans
|
Applicable
Commitment
Fee
|
|
Greater
than 2.00 to 1.0
|
1.00%
|
2.00%
|
0.50%
|
|
Less
than or equal to 2.00 to 1.0, but greater than 1.50 to 1.0
|
0.75%
|
1.75%
|
0.375%
|
|
Less
than or equal to 1.50 to 1.0
|
0.50%
|
1.50%
|
0.375%
|
For
the
purposes of the Pricing Grid, changes in the Applicable Margin and Applicable
Commitment Fee resulting from changes in the Total Net First Lien Leverage
Ratio
shall become effective on the date (the “Adjustment
Date”)
that
is three Business Days after the date on which
-35-
financial
statements are delivered to the Lenders pursuant to Section 5.04, commencing
with the delivery of such financial statements for the first full fiscal quarter
of the Borrower commencing after the Closing Date, and shall remain in effect
until the next change to be effected pursuant to this paragraph. If any
financial statements referred to above are not delivered within the time periods
specified in Section 5.04, then, at the option of the Administrative Agent
or
the Required Lenders, until the date that is three Business Days after the
date
on which such financial statements are delivered, the pricing level that is
one
pricing level higher than the pricing level theretofore in effect shall apply
as
of the first Business Day after the date on which such financial statements
were
to have been delivered but were not delivered. Each determination of the Total
Net First Lien Leverage Ratio pursuant to the Pricing Grid shall be made in
a
manner consistent with the determination thereof pursuant to Section 6.11.
“primary
obligor”
shall
have the meaning given such term in the definition of the term
“Guarantee.”
“Pro
Forma Adjusted EBITDA”
shall
have the meaning assigned to such term in Section 3.05.
“Pro
Forma Basis”
shall
mean, as to any person, for any events as described below that occur subsequent
to the commencement of a period for which the financial effect of such events
is
being calculated, and giving effect to the events for which such calculation
is
being made, such calculation as will give pro forma effect to such events as
if
such events occurred on the first day of the four consecutive fiscal quarter
period ended on or before the occurrence of such event (the “Reference
Period”):
(i)
in making any determination of EBITDA, effect shall be given to any Asset Sale,
any acquisition (or any similar transaction or transactions not otherwise
permitted under Section 6.04 or 6.05 that require a waiver or consent of the
Required Lenders and such waiver or consent has been obtained), any dividend,
distribution or other similar payment, any designation of any Subsidiary as
an
Unrestricted Subsidiary and any Subsidiary Redesignation, the Initial Pro Forma
Adjustment for the first two quarters ending after the Closing Date, and any
restructurings of the business of the Borrower or any of its Subsidiaries that
are expected to have a continuing impact and are factually supportable, which
would include cost savings resulting from head count reduction, closure of
facilities and similar operational and other cost savings, which adjustments
the
Borrower determines are reasonable as set forth in a certificate of a Financial
Officer of the Borrower (the foregoing, together with any transactions related
thereto or in connection therewith, the “relevant transactions”), in each case
that occurred during the Reference Period (or, in the case of determinations
made pursuant to the definition of the term “Permitted Business Acquisition” or
pursuant to Sections 2.11(b), 6.01(r), or 6.06(e), occurring during the
Reference Period or thereafter and through and including the date upon which
the
respective Permitted Business Acquisition or incurrence of Indebtedness or
Liens
or dividend is consummated), (ii) in making any determination on a Pro Forma
Basis, (x) all Indebtedness (including Indebtedness issued, incurred or assumed
as a result of, or to finance, any relevant transactions and for which the
financial effect is being calculated, whether incurred under this Agreement
or
otherwise, but excluding normal fluctuations in revolving Indebtedness incurred
for working capital purposes and amounts outstanding under any Permitted
Receivables Financing, in each case not to finance any acquisition) issued,
incurred, assumed or permanently repaid during the Reference Period (or, in
the
case of determinations made pursuant to the definition of the term “Permitted
Business Acquisition” or pursuant to Sections 2.11(b), 6.01
-36-
Calculations
made pursuant to the definition of the term “Pro Forma Basis” shall be
determined in good faith by a Responsible Officer of the Borrower and may
include adjustments to reflect (1) operating expense reductions and other
operating improvements or synergies reasonably expected to result from such
relevant transaction, as follows: (x) for purposes of determining the Applicable
Margin, such adjustments shall reflect demonstrable operating expense reductions
and other demonstrable operating improvements or synergies that would be
includable in pro forma
financial statements prepared in accordance with Regulation S-X under the
Securities Act; and (y) for purposes of determining compliance with the
Financial Performance Covenant and achievement of other financial measures
provided for herein, such adjustments may reflect additional operating expense
reductions and other additional operating improvements and synergies that would
not be includable in pro forma
financial statements prepared in accordance with Regulation S-X but that are
reasonably anticipated by the Borrower to be realizable in connection with
such
relevant transaction (or any similar transaction or transactions made in
compliance with this Agreement or that require a waiver or consent of the
Required Lenders), are estimated on a good faith basis by the Borrower, and
are
reasonably satisfactory to the Administrative Agent and (2) all adjustments
of
the type set forth on Schedule 1.01(e) to the extent such adjustments, without
duplication, continue to be applicable. The Borrower shall deliver to the
Administrative Agent a certificate of a Financial Officer of the Borrower
setting forth such demonstrable or additional operating expense reductions
and
other operating improvements or synergies and information and calculations
supporting them in reasonable detail.
“Pro
Forma Compliance”
shall
mean, at any date of determination, that the Borrower and its Subsidiaries
shall
be in compliance, on a Pro Forma Basis after giving effect on a Pro Forma Basis
to the relevant transactions (including the assumption, the issuance, incurrence
and permanent repayment of Indebtedness), with the Financial Performance
Covenant recomputed as at the last day of the most recently ended fiscal quarter
of the Borrower and its Subsidiaries for which the financial statements and
certificates required pursuant to Section 5.04 have been delivered, and the
Borrower shall have delivered to the Administrative Agent a certificate of
a
Responsible Officer of the Borrower to such effect, together with all relevant
financial information.
-37-
“Pro
Forma EBITDA”
shall
have the meaning assigned to such term in Section 3.05(a).
“Pro
Forma Financial Statements”
shall
have the meaning assigned to such term in Section 3.05(a).
“Projections”
shall
mean the projections of Holdings, the Borrower and the Subsidiaries included
in
the Information Memorandum and any other projections and any forward-looking
statements (including statements with respect to booked business) of such
entities furnished to the Lenders or the Administrative Agent by or on behalf
of
Holdings, the Borrower or any of the Subsidiaries prior to the Closing
Date.
“Qualified
CFC Holding Company”
shall
mean a Wholly Owned Subsidiary of the Borrower that is a Delaware limited
liability company that is treated as a disregarded entity for U.S. federal
income tax purposes, that (a)
is in
compliance with Section 6.15 and (b) the primary asset of which consists of
Equity Interests in either (i) a Foreign Subsidiary or(ii) a Delaware limited
liability company that is in compliance with Section 6.15 and the primary asset
of which consists of Equity Interests in a Foreign Subsidiary.
“Qualified
Equity Interests”
means
any Equity Interests other than Disqualified Stock.
“Qualified
IPO”
shall
mean an underwritten public offering of the Equity Interests of Holdings (or
any
direct or indirect parent of Holdings) which generates cash proceeds of at
least
$50.0 million.
“Real
Property”
means,
collectively, all right, title and interest (including any leasehold estate)
in
and to any and all parcels of or interests in real property owned in fee or
leased by any Loan Party, together with, in each case, all easements,
hereditaments and appurtenances relating thereto, all improvements and
appurtenant fixtures incidental to the ownership or lease thereof.
“Receivables
Assets”
shall
mean accounts receivable (including any bills of exchange) and related assets
and property from time to time originated, acquired or otherwise owned by the
Borrower or any Subsidiary.
“Receivables
Net Investment”
shall
mean the aggregate cash amount paid by the lenders or purchasers under any
Permitted Receivables Financing in connection with their purchase of, or the
making of loans secured by, Receivables Assets or interests therein, as the
same
may be reduced from time to time by collections with respect to such Receivables
Assets or otherwise in accordance with the terms of the Permitted Receivables
Documents (but excluding any such collections used to make payments of items
included in clause (c) of the definition of Interest Expense); provided,
however, that if all or any part of such Receivables Net Investment shall have
been reduced by application of any distribution and thereafter such distribution
is rescinded or must otherwise be returned for any reason, such Receivables
Net
Investment shall be increased by the amount of such distribution, all as though
such distribution had not been made.
-38-
“Reference
Period”
shall
have the meaning assigned to such term in the definition of the term “Pro Forma
Basis.”
“Refinance”
shall
have the meaning assigned to such term in the definition of the term “Permitted
Refinancing Indebtedness,” and “Refinanced”
shall
have a meaning correlative thereto.
“Refinanced
Indebtedness”
shall
mean the Target’s 10¾% Senior Subordinated Notes due 2012 and the Second Amended
and Restated Credit and Guarantee Agreement by and among the Borrower, Holdings,
and certain Subsidiaries, Xxxxxxx Sachs Credit Partners, L.P., JPMorgan Chase
Bank, Fleet National Bank, the Royal Bank of Scotland and General Electric
Corporation (as amended or amended and restated from time to time).
“Register”
shall
have the meaning assigned to such term in Section 9.04(b).
“Regulation
U”
shall
mean Regulation U of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
“Regulation
X”
shall
mean Regulation X of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
“Related
Fund”
shall
mean, with respect to any Lender that is a fund that invests in bank or
commercial loans and similar extensions of credit, any other fund that invests
in bank or commercial loans and similar extensions of credit and is advised
or
managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity
(or
an Affiliate of such entity) that administers, advises or manages such
Lender.
“Related
Parties”
shall
mean, with respect to any specified person, such person’s Affiliates and the
respective directors, trustees, officers, employees, agents and advisors of
such
person and such person’s Affiliates.
“Release”
shall
mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, disposing, depositing,
emanating or migrating in, into, onto or through the environment.
“Remaining
Present Value”
shall
mean, as of any date with respect to any lease, the present value as of such
date of the scheduled future lease payments with respect to such lease,
determined with a discount rate equal to a market rate of interest for such
lease reasonably determined at the time such lease was entered
into.
“Reportable
Event”
shall
mean any reportable event as defined in Section 4043(c) of ERISA or the
regulations issued thereunder, other than those events as to which the 30-day
notice period referred to in Section 4043(c) of ERISA has been waived, with
respect to a Plan (other than a Plan maintained by an ERISA Affiliate that
is
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Section 414 of the Code).
“Required
Lenders”
shall
mean, at any time, Lenders having (a) Loans (other than Swingline Loans)
outstanding, (b) Revolving L/C Exposures, (c) Swingline Exposures, and (d)
Available Unused Commitments, that taken together, represent more than 50%
of
-39-
“Required
Prepayment Date”
shall
have the meaning assigned to such term in Section 2.11(f).
“Required
Percentage”
shall
mean, with respect to an Excess Cash Flow Period (or Excess Cash Flow Interim
Period), 50%; provided,
that
(a) if the Total Net First Lien Leverage Ratio at the end of the Applicable
Period (or Excess Cash Flow Interim Period) is greater than 1.50:1.00 but less
than or equal to 2.00:1.00, such percentage shall be 25%, and (b) if the
Total Net First Lien Leverage Ratio at the end of the Applicable Period (or
Excess Cash Flow Interim Period) is less than or equal to 1.50:1.00, such
percentage shall be 0%.
“Responsible
Officer”
of
any
person shall mean any executive officer or Financial Officer of such person
and
any other officer or similar official thereof responsible for the administration
of the obligations of such person in respect of this Agreement.
“Retained
Excess Cash Flow Overfunding”
shall
mean, at any time, in respect of any Excess Cash Flow Interim Period as to
which
the corresponding Excess Cash Flow Period has ended at such time, a portion
of
the cumulative Excess Cash Flow for such Excess Cash Flow Interim Period equal
to the amount, if any, by which the Retained Percentage of Excess Cash Flow
for
such Excess Cash Flow Interim Period exceeds the Retained Percentage of Excess
Cash Flow for such corresponding Excess Cash Flow Period.
“Retained
Percentage”
shall
mean, with respect to any Excess Cash Flow Period (or Excess Cash Flow Interim
Period), (a) 100% minus (b) the Required Percentage with respect to such Excess
Cash Flow Period (or Excess Cash Flow Interim Period).
“Revaluation
Date”
means,
with respect to any Alternate Currency Letter of Credit, each of the following:
(i) each date of issuance of an Alternate Currency Letter of Credit,
(ii) each date of an amendment of an Alternate Currency Letter of Credit
having the effect of increasing the amount thereof, (iii) each date of any
payment by the Issuing Bank under an Alternate Currency Letter of Credit, and
(iv) such additional dates as the Administrative Agent or the Issuing Bank
shall
determine or the Required Lenders shall require.
“Revolving
Facility”
shall
mean the Revolving Facility Commitments (including any Incremental Revolving
Facility Commitments) and the extensions of credit made hereunder by the
Revolving Facility Lenders.
“Revolving
Facility Borrowing”
shall
mean a Borrowing comprised of Revolving Facility Loans.
“Revolving
Facility Commitment”
shall
mean, with respect to each Revolving Facility Lender, the commitment of such
Revolving Facility Lender to make Revolving Facility Loans pursuant to
Section 2.01, expressed as an amount representing the maximum aggregate
permitted amount of such Revolving Facility Lender’s Revolving Facility Credit
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08,
-40-
“Revolving
Facility Credit Exposure”
shall
mean, at any time, the sum of (a) the aggregate principal amount of the
Revolving Facility Loans outstanding at such time, (b) the Swingline Exposure
at
such time and (c) the Revolving L/C Exposure at such time. The Revolving
Facility Credit Exposure of any Revolving Facility Lender at any time shall
be
the product of (x) such Revolving Facility Lender’s Revolving Facility
Percentage and (y) the aggregate Revolving Facility Credit Exposure of all
Revolving Facility Lenders, collectively, at such time.
“Revolving
Facility Lender”
shall
mean a Lender (including an Incremental Revolving Facility Lender) with a
Revolving Facility Commitment or with outstanding Revolving Facility
Loans.
“Revolving
Facility Loan”
shall
mean a Loan made by a Revolving Facility Lender pursuant to
Section 2.01.
“Revolving
Facility Maturity Date”
shall
mean September 20, 2012.
“Revolving
Facility Percentage”
shall
mean, with respect to any Revolving Facility Lender, the percentage of the
total
Revolving Facility Commitments represented by such Lender’s Revolving Facility
Commitment. If the Revolving Facility Commitments have terminated or expired,
the Revolving Facility Percentages shall be determined based upon the Revolving
Facility Commitments most recently in effect, giving effect to any assignments
pursuant to Section 9.04.
“Revolving
L/C Exposure”
shall
mean at any time the sum of (a) the aggregate undrawn amount of all Letters
of
Credit outstanding at such time (calculated, in the case of Alternate Currency
Letters of Credit, based on the Dollar Equivalent thereof), (b) the sum of
the
maximum aggregate amount that is, or at any time thereafter may become, payable
by the Issuing Banks under all then outstanding Bankers’ Acceptances
(calculated, in the case of Alternate Currency Letters of Credit, based on
the
Dollar Equivalent thereof) and (c) the aggregate principal amount of all L/C
Disbursements that have not yet been reimbursed at such time (calculated, in
the
case of Alternate Currency Letters of Credit, based on the Dollar Equivalent
thereof). The Revolving L/C Exposure of any Revolving Facility Lender at any
time shall mean its Revolving Facility Percentage of the aggregate Revolving
L/C
Exposure at such time. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the
International Standby Practices (ISP98), such Letter of Credit shall be deemed
to be “outstanding” in the amount so remaining available to be drawn. Unless
otherwise specified herein, the amount of a Letter of Credit at any time shall
be deemed to be the
-41-
“S&P”
shall
mean Standard & Poor’s Ratings Group, Inc.
“Sale
and Lease-Back Transaction”
shall
have the meaning assigned to such term in Section 6.03.
“SEC”
shall
mean the Securities and Exchange Commission or any successor
thereto.
“Second
Lien Fixed Rate Notes”
shall
mean the Borrower’s 8⅞% Second Priority Senior Secured Notes due 2014, issued
pursuant to the Second Lien Notes Indenture and any notes issued by the Borrower
in exchange for, and as contemplated by, the Second Lien Fixed Rate Notes and
the related registration rights agreement with substantially identical terms
as
the Second Lien Fixed Rate Notes.
“Second
Lien Floating Rate Notes”
shall
mean the Borrower’s floating rate Second Priority Senior Secured Notes due 2014,
issued pursuant to the Second Lien Notes Indenture and any notes issued by
the
Borrower in exchange for, and as contemplated by, the Second Lien Floating
Rate
Notes and the related registration rights agreement with substantially identical
terms as the Second Lien Floating Rate Notes.
“Second
Lien Note Documents”
shall
mean the Second Lien Notes, the Second Lien Notes Indenture and the Second
Lien
Security Documents.
“Second
Lien Notes”
shall
mean the collective reference to the Second Lien Fixed Rate Notes and the Second
Lien Floating Rate Notes.
“Second
Lien Notes Indenture”
shall
mean the Indenture dated as of September
20,
2006
under which the Second Lien Fixed Rate Notes and Second Lien Floating Rate
Notes
were issued, among the Borrower and certain of the Subsidiaries party thereto
and the trustee named therein from time to time, as in effect on the Closing
Date and as amended, restated, supplemented or otherwise modified from time
to
time in accordance with the requirements thereof and of this
Agreement.
“Second
Lien Notes Offering Memorandum”
shall
mean the Offering Memorandum, dated September 15, 2006, in respect of the Second
Lien Notes.
“Second
Lien Security Documents”
shall
mean the “Security Documents” as defined in the Second Lien Notes
Indenture.
“Secured
Parties”
shall
mean the “Secured Parties” as defined in the Collateral Agreement.
-42-
“Securities
Act”
shall
mean the Securities Act of 1933, as amended.
“Security
Documents”
shall
mean the Mortgages, the Collateral Agreement, the Foreign Pledge Agreements
and
each of the security agreements and other instruments and documents executed
and
delivered pursuant to any of the foregoing or pursuant to
Section 5.10.
“Senior
Subordinated Note Documents”
shall
mean the Senior Subordinated Notes and the Senior Subordinated Notes
Indenture.
“Senior
Subordinated Notes”
shall
mean the Borrower’s 11% Senior Subordinated Notes due 2016, issued pursuant to
the Senior Subordinated Notes Indenture and any notes issued by the Borrower
in
exchange for, and as contemplated by, the Senior Subordinated Notes and the
related registration rights agreement with substantially identical terms as
the
Senior Subordinated Notes.
“Senior
Subordinated Notes Indenture”
shall
mean the Indenture dated as of September 20, 2006 under which the Senior
Subordinated Notes were issued, among the Borrower and certain of the
Subsidiaries party thereto and the trustee named therein from time to time,
as
in effect on the Closing Date and as amended, restated, supplemented or
otherwise modified from time to time in accordance with the requirements thereof
and of this Agreement.
“Special
Purpose Receivables Subsidiary”
shall
mean a direct or indirect Subsidiary of the Borrower established in connection
with a Permitted Receivables Financing for the acquisition of Receivables Assets
or interests therein, and which is organized in a manner intended to reduce
the
likelihood that it would be substantively consolidated with Holdings, the
Borrower or any of the Subsidiaries (other than Special Purpose Receivables
Subsidiaries) in the event Holdings, the Borrower or any such Subsidiary becomes
subject to a proceeding under the U.S. Bankruptcy Code (or other insolvency
law).
“Spot
Rate”
for
a
currency means the rate determined by the Administrative Agent or the Issuing
Bank, as applicable, to be the rate quoted by the person acting in such capacity
as the spot rate for the purchase by such person of such currency with another
currency through its principal foreign exchange trading office at approximately
11:00 a.m. on the date three Business Days prior to the date as of which the
foreign exchange computation is made or if such rate cannot be computed as
of
such date such other date as the Administrative Agent or the Issuing Bank shall
reasonably determine is appropriate under the circumstances; provided
that the
Administrative Agent or the Issuing Bank may obtain such spot rate from another
financial institution designated by the Administrative Agent or the Issuing
Bank
if the person acting in such capacity does not have as of the date of
determination a spot buying rate for any such currency.
“Standby
Letter of Credit”
shall
have the meaning provided in Section 2.05(a).
“Statutory
Reserves”
shall
mean, with respect to any currency, any reserve, liquid asset or similar
requirements established by any Governmental Authority of the United States
of
America or of the jurisdiction of such currency or any jurisdiction in which
Loans in
-43-
“Subagent”
shall
have the meaning assigned to such term in Section 8.02.
“Subordinated
Intercompany Debt”
shall
have the meaning assigned to such term in Section 6.01(e).
“subsidiary”
shall
mean, with respect to any person (herein referred to as the “parent”), any
corporation, partnership, association or other business entity (a) of which
securities or other ownership interests representing more than 50% of the equity
or more than 50% of the ordinary voting power or more than 50% of the general
partnership interests are, at the time any determination is being made, directly
or indirectly, owned, Controlled or held, or (b) that is, at the time any
determination is made, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of
the
parent.
“Subsidiary”
shall
mean, unless the context otherwise requires, a subsidiary of the Borrower.
Notwithstanding the foregoing (and except for purposes of Sections 3.09, 3.13,
3.15, 3.16, 5.03, 5.09 and 7.01(k), and the definition of Unrestricted
Subsidiary contained herein), an Unrestricted Subsidiary shall be deemed not
to
be a Subsidiary of the Borrower or any of its Subsidiaries for purposes of
this
Agreement.
“Subsidiary
Loan Party”
shall
mean (a) each Domestic Subsidiary of the Borrower on the Closing Date and (b)
each Domestic Subsidiary of the Borrower that becomes, or is required to become,
a party to the Collateral Agreement after the Closing Date.
“Subsidiary
Redesignation”
shall
have the meaning provided in the definition of “Unrestricted Subsidiary”
contained in this Section 1.01.
“Swap
Agreement”
shall
mean any agreement with respect to any swap, forward, future or derivative
transaction or option or similar agreement involving, or settled by reference
to, one or more rates, currencies, commodities (including, for the avoidance
of
doubt, resin), equity or debt instruments or securities, or economic, financial
or pricing indices or measures of economic, financial or pricing risk or value
or any similar transaction or any combination of these transactions;
provided,
that no
phantom stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants
of
Holdings, the Borrower or any of the Subsidiaries shall be a Swap
Agreement.
“Swingline
Borrowing”
shall
mean a Borrowing comprised of Swingline Loans.
“Swingline
Borrowing Request”
shall
mean a request by a Borrower substantially in the form of Exhibit C-2.
“Swingline
Commitment”
shall
mean, with respect to each Swingline Lender, the commitment of such Swingline
Lender to make Swingline Loans pursuant to Section 2.04. The aggregate
amount of the Swingline Commitments on the Closing Date is $20.0
million.
-44-
“Swingline
Exposure”
shall
mean at any time the aggregate principal amount of all outstanding Swingline
Borrowings at such time. The Swingline Exposure of any Revolving Facility Lender
at any time shall mean its Revolving Facility Percentage of the aggregate
Swingline Exposure at such time.
“Swingline
Lender”
shall
mean Credit Suisse, Cayman Islands Branch in its capacity as a lender of
Swingline Loans.
“Swingline
Loans”
shall
mean the swingline loans made to the Borrower pursuant to
Section 2.04.
“Syndication
Agent”
shall
have the meaning assigned to such term in the introductory paragraph of this
Agreement.
“Target”
shall
have the meaning assigned to such term in the first recital hereto.
“Taxes”
shall
mean any and all present or future taxes, levies, imposts, duties (including
stamp duties), deductions, withholdings or similar charges (including
ad valorem
charges)
imposed by any Governmental Authority and any and all interest and penalties
related thereto.
“Term
B
Borrowing”
shall
mean a Borrowing comprised of Term B Loans.
“Term
B
Facility”
shall
mean the Term B Loan Commitments and the Term B Loans made
hereunder.
“Term
B
Facility Maturity Date”
shall
mean September 20, 2013.
“Term
B
Loan Commitment”
shall
mean with respect to each Lender, the commitment of such Lender to make Term
B
Loans as set forth in Section 2.01(a) or Incremental Term Loans in the form
of Term B Loans as set forth in Section 2.01(c). The initial amount of each
Lender’s Term B Loan Commitment is set forth on Schedule
2.01,
or in
the Assignment and Acceptance or Incremental Assumption Agreement pursuant
to
which such Lender shall have assumed its Term B Loan Commitment (or its
Incremental Term Commitment), as applicable. The aggregate amount of the Term
B
Loan Commitments on the Closing Date is $675.0 million.
“Term
B
Loan Installment Date”
shall
have the meaning assigned to such term in Section 2.10(a)(i).
“Term
B
Loans”
shall
mean the term loans made by the Lenders to the Borrower pursuant to
Section 2.01(a) and any Incremental Term Loans in the form of Term B Loans
made by the Incremental Term Lenders to the Borrower pursuant to
Section 2.01(c).
“Term
Borrowing”
shall
mean any Term B Borrowing or any Incremental Term Borrowing.
“Term
Facility”
shall
mean the Term Facility and/or any or all of the Incremental Term
Facilities.
-45-
“Term
Facility Maturity Date”
shall
mean the latest of the Term B Facility Maturity Date and any Incremental Term
Facility Maturity Date.
“Term
Loan Commitment”
shall
mean any Term B Loan Commitment or any Incremental Term Commitment.
“Term
Loan Installment Date”
shall
mean any Term B Loan Installment Date or any Incremental Term Loan Installment
Date.
“Term
Loans”
shall
mean the Term B Loans and/or the Incremental Term Loans.
“Test
Period”
shall
mean, on any date of determination, the period of four consecutive fiscal
quarters of the Borrower then most recently ended (taken as one accounting
period).
“Total
Net First Lien Leverage Ratio”
means,
on any date, the ratio of (a) First Lien Debt as of such date to (b) EBITDA
for
the period of four consecutive fiscal quarters of the Borrower most recently
ended as of such date, all determined on a consolidated basis in accordance
with
GAAP; provided,
that
EBITDA shall be determined for the relevant Test Period on a Pro Forma
Basis.
“Trade
Letter of Credit”
shall
have the meaning provided in Section 2.05(a).
“Transaction
Documents”
shall
mean the Acquisition Documents, the Second Lien Note Documents, the Senior
Subordinated Note Documents and the Loan Documents.
“Transaction
Expenses”
means
any fees or expenses incurred or paid by the Funds, Holdings, the Borrower
(or
any direct or indirect parent of the Borrower) or any of its Subsidiaries in
connection with the Transactions, this Agreement and the other Loan Documents
(including expenses in connection with Swap Agreements) and the transactions
contemplated hereby and thereby.
“Transactions”
shall
mean, collectively, the transactions to occur pursuant to the Transaction
Documents, including (a) the consummation of the Acquisition; (b) the execution
and delivery of the Loan Documents, the creation of the Liens pursuant to the
Security Documents, and the initial borrowings hereunder; (c) the Equity
Financing; (d) the sale and issuance of the Second Lien Notes and the Senior
Subordinated Notes and the creation of the Liens pursuant to the Second Lien
Security Documents; (e) the refinancing (or discharge) of the Refinanced
Indebtedness; and (f) the payment of all fees and expenses to be paid on or
prior to the Closing Date and owing in connection with the
foregoing.
“Type”
shall
mean, when used in respect of any Loan or Borrowing, the Rate by reference
to
which interest on such Loan or on the Loans comprising such Borrowing is
determined. For purposes hereof, the term “Rate”
shall
include the Adjusted LIBO Rate and the ABR.
“Unfunded
Pension Liability”
means
the excess of a Plan’s benefit liabilities under Section 4001(a)(16) of ERISA,
over the
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“Uniform
Commercial Code”
means
the Uniform Commercial Code as the same may from time to time be in effect
in
the State of New York or the Uniform Commercial Code (or similar code or
statute) of another jurisdiction, to the extent it may be required to apply
to
any item or items of Collateral.
“Unrestricted
Cash”
shall
mean domestic cash or cash equivalents of the Borrower or any of its
Subsidiaries that would not appear as “restricted” on a consolidated balance
sheet of the Borrower or any of its Subsidiaries.
“Unrestricted
Subsidiary”
shall
mean (i) any subsidiary of the Borrower identified on Schedule 1.01(f) and
(ii)
any subsidiary of the Borrower that is acquired or created after the Closing
Date and designated by the Borrower as an Unrestricted Subsidiary hereunder
by
written notice to the Administrative Agent; provided,
that
the Borrower shall only be permitted to so designate a new Unrestricted
Subsidiary after the Closing Date and so long as (a) no Default or Event of
Default has occurred and is continuing or would result therefrom, (b)
immediately after giving effect to such designation (as well as all other such
designations theretofore consummated after the first day of such Reference
Period), the Borrower shall be in Pro Forma Compliance,
(c)
such
Unrestricted Subsidiary shall be capitalized (to the extent capitalized by
the
Borrower or any of its Subsidiaries) through Investments as permitted by, and
in
compliance with, Section 6.04(j), and any prior or concurrent Investments
in such Subsidiary by the Borrower or any of its Subsidiaries shall be deemed
to
have been made under Section 6.04(j), (d) without duplication of clause
(c), any assets owned by such Unrestricted Subsidiary at the time of the initial
designation thereof shall be treated as Investments pursuant to
Section 6.04(j),
and (e)
such Subsidiary shall have been designated an “unrestricted subsidiary” (or
otherwise not be subject to the covenants and defaults) under the Second Lien
Notes Indenture, the Senior Subordinated Notes Indenture, any other Indebtedness
permitted to be incurred herein and all Permitted Refinancing Indebtedness
in
respect of any of the foregoing and all Disqualified Stock;
provided,
further,
that at
the time of the initial Investment by the Borrower or any of its Subsidiaries
in
such Subsidiary, the Borrower shall designate such entity as an Unrestricted
Subsidiary in a written notice to the Administrative Agent. The Borrower may
designate any Unrestricted Subsidiary to be a Subsidiary for purposes of this
Agreement (each, a “Subsidiary
Redesignation”);
provided,
that
(i) such Unrestricted Subsidiary, both before and after giving effect to such
designation, shall be a Wholly Owned Subsidiary of the Borrower, (ii) no Default
or Event of Default has occurred and is continuing or would result therefrom,
(iii) immediately after giving effect to such Subsidiary Redesignation (as
well
as all other Subsidiary Redesignations theretofore consummated after the first
day of such Reference Period), the Borrower shall be in Pro Forma Compliance,
(iii) all representations and warranties contained herein and in the other
Loan
Documents shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on and as
of
the date of such Subsidiary Redesignation (both before and after giving effect
thereto), unless stated to relate to a specific earlier date, in which case
such
representations and warranties shall be true and correct in all material
respects as of such earlier date, and (iv) the Borrower shall have delivered
to
the Administrative Agent an officer’s certificate executed by a Responsible
Officer of the Borrower, certifying to the best of such officer’s knowledge,
compliance with the requirements of
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“U.S.
Bankruptcy Code”
shall
mean Title 11 of the United States Code, as amended, or any similar federal
or
state law for the relief of debtors.
“Waivable
Mandatory Prepayment”
shall
have the meaning assigned to such term in Section 2.11(f).
“Wholly
Owned Subsidiary”
of
any
person shall mean a subsidiary of such person, all of the Equity Interests
of
which (other than directors’ qualifying shares or nominee or other similar
shares required pursuant to applicable law) are owned by such person or another
Wholly Owned Subsidiary of such person.
“Withdrawal
Liability”
shall
mean liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part
I of
Subtitle E of Title IV of ERISA.
“Working
Capital”
shall
mean, with respect to the Borrower and the Subsidiaries on a consolidated basis
at any date of determination, Current Assets at such date of determination
minus
Current
Liabilities at such date of determination; provided,
that,
for purposes of calculating Excess Cash Flow, increases or decreases in Working
Capital shall be calculated without regard to any changes in Current Assets
or
Current Liabilities as a result of (a) any reclassification in accordance with
GAAP of assets or liabilities, as applicable, between current and noncurrent
or
(b) the effects of purchase accounting.
SECTION
1.02. Terms
Generally.
The
definitions set forth or referred to in Section 1.01 shall apply equally to
both the singular and plural forms of the terms defined. Whenever the context
may require, any pronoun shall include the corresponding masculine, feminine
and
neuter forms. The words “include,” “includes” and “including” shall be deemed to
be followed by the phrase “without limitation.” All references herein to
Articles, Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, this Agreement unless
the context shall otherwise require. Except as otherwise expressly provided
herein, any reference in this Agreement to any Loan Document shall mean such
document as amended, restated, supplemented or otherwise modified from time
to
time in accordance with the requirements hereof and thereof. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time;
provided,
that,
if the Borrower notifies the Administrative Agent that the Borrower requests
an
amendment to any provision hereof to eliminate the effect of any change
occurring after the Closing Date in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have
been
withdrawn or such provision amended in accordance herewith.
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SECTION
1.03. Effectuation
of Transactions.
Each of
the representations and warranties of Holdings and the Borrower contained in
this Agreement (and all corresponding definitions) are made after giving effect
to the Transactions, unless the context otherwise requires.
SECTION
1.04. Exchange
Rates; Currency Equivalents.
i)
The
Administrative Agent shall determine the Spot Rate as of each Revaluation Date
to be used for calculating Dollar Equivalent amounts of Alternate Currency
Letters of Credit. Such Spot Rate shall become effective as of such Revaluation
Date and shall be the Spot Rate employed in converting any amounts between
the
Dollars and each Alternate Currency until the next Revaluation Date to occur.
Except for purposes of financial statements delivered by Loan Parties hereunder
or calculating financial covenants hereunder or except as otherwise provided
herein, the applicable amount of any currency (other than Dollars) for purposes
of the Loan Documents shall be such Dollar Equivalent amount as so determined
by
the Administrative Agent. No Default or Event of Default shall arise as a result
of any limitation or threshold set forth in U.S. Dollars in Article VI or
paragraph (f) or (j) of Section 7.01 being exceeded solely as a result of
changes in currency exchange rates from those rates applicable on the first
day
of the fiscal quarter in which such determination occurs or in respect of which
such determination is being made.
(b) Wherever
in this Agreement in connection with an Alternate Currency Letter of Credit,
an
amount, such as a required minimum or multiple amount, is expressed in Dollars,
such amount shall be the Dollar Equivalent of such Dollar amount (rounded to
the
nearest unit of such Alternate Currency, with 0.5 of a unit being rounded
upward), as determined by the Administrative Agent.
ARTICLE
II
The
Credits
SECTION
2.01. Commitments.
Subject
to the terms and conditions set forth herein:
(a) each
Lender having a Term B Loan Commitment agrees to make Term B Loans to the
Borrower on the Closing Date in a principal amount not to exceed its Term B
Loan
Commitment;
(b) each
Revolving Facility Lender agrees to make Revolving Facility Loans to the
Borrower from time to time during the Availability Period in an aggregate
principal amount that will not result in (i) such Lender’s Revolving Facility
Credit Exposure exceeding such Lender’s Revolving Facility Commitment or (ii)
the Revolving Facility Credit Exposure exceeding the total Revolving Facility
Commitments; provided,
that
the aggregate principal amount of Revolving Facility Loans made on the Closing
Date shall not exceed $30.0 million. Within the foregoing limits and subject
to
the terms and conditions set forth herein, the Borrower may borrow, prepay
and
reborrow Revolving Facility Loans; and
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(c) each
Lender having an Incremental Term Loan Commitment agrees, subject to the terms
and conditions set forth in the applicable Incremental Assumption Agreement,
to
make Incremental Term Loans to the Borrower, in an aggregate principal amount
not to exceed its Incremental Term Loan Commitment.
(d) Amounts
borrowed under Section 2.01(a) or 2.01(c) and repaid or prepaid may not be
reborrowed.
SECTION
2.02. Loans
and Borrowings.
ii)
Each
Loan shall be made as part of a Borrowing consisting of Loans under the same
Facility and of the same Type made by the Lenders ratably in accordance with
their respective Commitments under the applicable Facility (or, in the case
of
Swingline Loans, in accordance with their respective Swingline Commitments);
provided,
however,
that
Revolving Facility Loans shall be made by the Revolving Facility Lenders ratably
in accordance with their respective Revolving Facility Percentages on the date
such Loans are made hereunder. The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided,
that
the Commitments of the Lenders are several and no Lender shall be responsible
for any other Lender’s failure to make Loans as required.
(b) Subject
to Section 2.14, each Borrowing (other than a Swingline Borrowing) shall be
comprised entirely of ABR Loans or Eurocurrency Loans as the Borrower may
request in accordance herewith. Each Swingline Borrowing shall be an ABR
Borrowing. Each Lender at its option may make any ABR Loan or Eurocurrency
Loan
by causing any domestic or foreign branch or Affiliate of such Lender to make
such Loan; provided,
that
any exercise of such option shall not affect the obligation of the Borrower
to
repay such Loan in accordance with the terms of this Agreement and such Lender
shall not be entitled to any amounts payable under Section 2.15 or 2.17
solely in respect of increased costs resulting from such exercise and existing
at the time of such exercise.
(c) At
the
commencement of each Interest Period for any Eurocurrency Revolving Facility
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of the Borrowing Multiple and not less than the Borrowing Minimum.
At
the time that each ABR Revolving Facility Borrowing is made, such Borrowing
shall be in an aggregate amount that is an integral multiple of the Borrowing
Multiple and not less than the Borrowing Minimum; provided,
that an
ABR Revolving Facility Borrowing may be in an aggregate amount that is equal
to
the entire unused balance of the Revolving Facility Commitments or that is
required to finance the reimbursement of an L/C Disbursement as contemplated
by
Section 2.05(e). Each Swingline Borrowing shall be in an amount that is an
integral multiple of the Borrowing Multiple and not less than the Borrowing
Minimum. Borrowings of more than one Type and under more than one Facility
may
be outstanding at the same time; provided,
that
there shall not at any time be more than a total of (i) 5 Eurocurrency
Borrowings outstanding under the Term Facility and (ii) 10 Eurocurrency
Borrowings outstanding under the Revolving Facility.
(d) Notwithstanding
any other provision of this Agreement, the Borrower shall not be entitled to
request, or to elect to
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SECTION
2.03. Requests
for Borrowings.
To
request a Revolving Facility Borrowing and/or a Term Borrowing, the Borrower
shall notify the Administrative Agent of such request by telephone (a) in the
case of a Eurocurrency Borrowing, not later than 12:00 p.m., Local Time, three
Business Days before the date of the proposed Borrowing or (b) in the case
of an
ABR Borrowing, not later than 12:00 noon, Local Time, one Business Day before
the date of the proposed Borrowing; provided,
that
any such notice of an ABR Revolving Facility Borrowing to finance the
reimbursement of an L/C Disbursement as contemplated by Section 2.05(e) may
be given not later than 10:00 a.m., Local Time, on the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and
shall
be confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Borrowing Request in a form approved by the Administrative Agent
and signed by the Borrower. Each such telephonic and written Borrowing Request
shall specify the following information in compliance with
Section 2.02:
(i) Whether
such Borrowing is to be a Borrowing of Revolving Facility Loans, Other Revolving
Loans, Term B Loans or Other Term Loans;
(ii) the
aggregate amount of the requested Borrowing;
(iii) the
date
of such Borrowing, which shall be a Business Day;
(iv) whether
such Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing;
(v) in
the
case of a Eurocurrency Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated by the definition of the term
“Interest Period”; and
(vi) the
location and number of the Borrower’s account to which funds are to be
disbursed.
If
no
election as to the Type of Revolving Facility Borrowing is specified, then
the
requested Revolving Facility Borrowing shall be an ABR Borrowing. If no Interest
Period is specified with respect to any requested Eurocurrency Borrowing, then
the Borrower shall be deemed to have selected an Interest Period of one month’s
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender’s Loan to be made as part of the
requested Borrowing.
SECTION
2.04. Swingline
Loans.
iii)
Subject
to the terms and conditions set forth herein, the Swingline Lender agrees to
make Swingline Loans to the Borrower from time to time during the Availability
Period, in an aggregate principal amount at any time outstanding that will
not
result in (i) the aggregate principal amount of outstanding Swingline Loans
exceeding the Swingline Commitment or (ii) the Revolving Facility Credit
Exposure exceeding the total Revolving Facility Commitments; provided,
that
the Swingline Lender shall not
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(b) To
request a Swingline Borrowing, the Borrower shall notify the Administrative
Agent and the Swingline Lender of such request by telephone (confirmed by a
Swingline Borrowing Request by telecopy), not later than 1:00 p.m., Local Time,
on the day of a proposed Swingline Borrowing. Each such notice and Swingline
Borrowing Request shall be irrevocable and shall specify (i) the requested
date
(which shall be a Business Day) and (ii) the amount of the requested Swingline
Borrowing. The Swingline Lender shall consult with the Administrative Agent
as
to whether the making of the Swingline Loan is in accordance with the terms
of
this Agreement prior to the Swingline Lender funding such Swingline Loan. The
Swingline Lender shall make each Swingline Loan in accordance with
Section 2.02(a) on the proposed date thereof by wire transfer of
immediately available funds by 3:00 p.m., Local Time, to the account of the
Borrower (or, in the case of a Swingline Borrowing made to finance the
reimbursement of an L/C Disbursement as provided in Section 2.05(e), by
remittance to the applicable Issuing Bank).
(c) The
Swingline Lender may by written notice given to the Administrative Agent not
later than 10:00 a.m., Local Time, on any Business Day require the Revolving
Facility Lenders to acquire participations on such Business Day in all or a
portion of the outstanding Swingline Loans made by it. Such notice shall specify
the aggregate amount of such Swingline Loans in which the Revolving Facility
Lenders will participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each such Revolving Facility
Lender, specifying in such notice such Revolving Facility Lender’s Revolving
Facility Percentage of such Swingline Loan or Loans. Each Revolving Facility
Lender hereby absolutely and unconditionally agrees, promptly upon receipt
of
notice as provided above, to pay to the Administrative Agent for the account
of
the Swingline Lender, such Revolving Facility Lender’s Revolving Facility
Percentage of such Swingline Loan or Loans. Each Revolving Facility Lender
acknowledges and agrees that its respective obligation to acquire participations
in Swingline Loans pursuant to this paragraph is absolute and unconditional
and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments,
and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Revolving Facility Lender shall comply with its
obligation under this paragraph by wire transfer of immediately available funds,
in the same manner as provided in Section 2.06 with respect to Loans made
by such Revolving Facility Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Administrative
Agent shall promptly pay to the Swingline Lender the amounts so received by
it
from the Revolving Facility Lenders. The Administrative Agent shall notify
the
Borrower of any participations in any Swingline Loan acquired pursuant to this
paragraph (c), and thereafter payments in respect of such Swingline Loan
shall be made to the Administrative Agent and not to the Swingline Lender.
Any
amounts received by the Swingline Lender from the Borrower (or other party
on
behalf of the Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall
be
promptly remitted to the Administrative Agent; any such amounts received by
the
Administrative Agent shall be promptly remitted by the Administrative Agent
to
the Revolving Facility Lenders that shall have made their payments pursuant
to
this paragraph and to the Swingline Lender, as their interests
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SECTION
2.05. Letters
of Credit.
iv) General.
Subject
to the terms and conditions set forth herein, the Borrower may request the
issuance of (x) trade letters of credit and bank guarantees in support of trade
obligations of the Borrower and its Subsidiaries incurred in the ordinary course
of business (such letters of credit and bank guarantees issued for such
purposes, “Trade
Letters of Credit”)
and
(y) standby letters of credit and bank guarantees issued for any other lawful
purposes of the Borrower and its Subsidiaries (such letters of credit and bank
guarantees issued for such purposes, “Standby
Letters of Credit”)
for
its own account in a form reasonably acceptable to the applicable Issuing Bank,
at any time and from time to time during the Availability Period and prior
to
the date that is five Business Days prior to the Revolving Facility Maturity
Date. In the event of any inconsistency between the terms and conditions of
this
Agreement and the terms and conditions of any form of letter of credit or bank
guarantee application or other agreement (including any Acceptance Documents)
submitted by the Borrower to, or entered into by the Borrower with, an Issuing
Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control. Unless
otherwise expressly agreed by the Issuing Bank and the Borrower, when a Letter
of Credit is issued (including any such agreement applicable to an Existing
Letter of Credit), (i) the rules of the International Standby Practices shall
apply to each Standby Letter of Credit, and (ii) the rules of the Uniform
Customs and Practice for Documentary Credits, as most recently published by
the
International Chamber of Commerce at the time of issuance, shall apply to each
commercial Letter of Credit.“Letters
of Credit” shall include Trade Letters of Credit and Standby Letters of
Credit.
(b) Notice
of Issuance, Amendment, Renewal, Extension: Certain Conditions.
To
request the issuance of a Letter of Credit (or the amendment, renewal (other
than an automatic extension in accordance with paragraph (c) of this Section)
or
extension of an outstanding Letter of Credit), the Borrower shall hand deliver
or telecopy (or transmit by electronic communication, if arrangements for doing
so have been approved by the applicable Issuing Bank) to the applicable Issuing
Bank and the Administrative Agent (three Business Days in advance of the
requested date of issuance, amendment or extension or such shorter period as
the
Administrative Agent and the Issuing Bank in their sole discretion may agree)
a
notice requesting the issuance of a Letter of Credit, or identifying the Letter
of Credit to be amended or extended, and specifying the date of issuance,
amendment or extension (which shall be a Business Day), the date on which such
Letter of Credit (and, in the case of an Acceptance Credit, all Bankers’
Acceptances created thereunder is) to expire (which shall comply with
paragraph (c) of this Section), the amount and currency (which may be
Dollars or an Alternate Currency) of such Letter of Credit, the name and address
of the beneficiary thereof, whether such letter of credit or bank guarantee
constitutes a Standby Letter of Credit or a Trade Letter of Credit, and such
other information as shall be necessary to issue, amend or extend such Letter
of
Credit (including whether such Letter of Credit is an Acceptance Credit). If
requested by the applicable Issuing Bank, the Borrower also shall submit a
letter of credit or bank guarantee application on such Issuing Bank’s standard
form in connection with any request for a Letter of Credit. A Letter of Credit
shall be issued, amended or extended only if (and upon issuance, amendment
or
extension of each Letter of Credit the Borrower shall be deemed to
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(c) Expiration
Date.
Each
Standby Letter of Credit shall expire (and in the case of an Acceptance Credit,
shall provide that all Bankers’ Acceptances created thereunder (which shall in
no event have a maturity of less than 30 or more than 120 days after creation
thereof) shall expire) at or prior to the close of business on the earlier
of
(i) the date one year (unless otherwise agreed upon by the Administrative Agent
and the Issuing Bank in their sole discretion) after the date of the issuance
of
such Standby Letter of Credit (or, in the case of any extension thereof, one
year (unless otherwise agreed upon by the Administrative Agent and the Issuing
Bank in their sole discretion) after such renewal or extension) and (ii) the
date that is five Business Days prior to the Revolving Facility Maturity Date;
provided,
that
any Standby Letter of Credit with one year tenor may provide for automatic
extension thereof for additional one year periods (which, in no event, shall
extend beyond the date referred to in clause (ii) of this paragraph (c)) so
long
as such Standby Letter of Credit permits the Issuing Bank to prevent any such
extension at least once in each twelve-month period (commencing with the date
of
issuance of such Standby Letter of Credit) by giving prior notice to the
beneficiary thereof not later than five days in each such twelve-month period
to
be agreed upon at the time such Standby Letter of Credit is issued; provided,
further,
that if
the Issuing Bank and the Administrative Agent each consent in their sole
discretion, the expiration date on any Standby Letter of Credit (or, in the
case
of an Acceptance Credit, any Bankers’ Acceptances thereunder) may extend beyond
the date referred to in clause (ii) above, provided,
that if
any such Standby Letter of Credit is outstanding or the expiration date is
extended to a date after the date that is 30 days prior to the Revolving
Facility Maturity Date the Borrower shall, upon the later to occur of (x) the
date such Standby Letter of Credit is issued or (y) the date the expiration
date
of such Standby Letter of Credit is so extended, provide cash collateral
pursuant to documentation reasonably satisfactory to the Administrative Agent
and the relevant Issuing Bank in an amount equal to 105% of the face amount
of
each such Standby Letter of Credit on or prior to the date that is 30 days
prior
to the Revolving Facility Maturity Date or, if later, such date of issuance.
Each Trade Letter of Credit shall expire not later than (x) 180 days after
such
Trade Letter of Credit’s date of issuance, or (y) the date five Business Days
prior to the Revolving Facility Maturity Date.
(d) Participations.
By the
issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing
the amount thereof) (or the creation of a Bankers’ Acceptance in respect of an
Acceptance Credit,) and without any further action on the part of the applicable
Issuing Bank or the Revolving Facility Lenders, such Issuing Bank hereby grants
to each Revolving Facility Lender, and each Revolving Facility Lender hereby
acquires from such Issuing Bank, a participation in such Letter of Credit or
Bankers’ Acceptance equal to such Revolving Facility Lender’s Revolving Facility
Percentage of the aggregate amount available to be drawn under such Letter
of
Credit (or the aggregate amount of such Bankers’ Acceptance) (calculated, in the
case of Alternate Currency Letters of Credit, based on the Dollar
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(e) Reimbursement.
If the
applicable Issuing Bank shall make any L/C Disbursement in respect of a Letter
of Credit (or Bankers’ Acceptance), the Borrower shall reimburse such L/C
Disbursement by paying to the Administrative Agent an amount in Dollars equal
to
such L/C Disbursement (or, in the case of a Alternate Currency Letter of Credit,
the Dollar Equivalent thereof) not later than 2:00 p.m., Local Time, on the
next
Business Day after the Borrower receives notice under paragraph (g) of this
Section of such L/C Disbursement, together with accrued interest thereon
from the date of such L/C Disbursement at the rate applicable to ABR Loans;
provided,
that
the Borrower may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 or 2.04 that such payment be
financed with an ABR Revolving Facility Borrowing or a Swingline Borrowing,
as
applicable, in an equivalent amount and, to the extent so financed, the
Borrower’s obligation to make such payment shall be discharged and replaced by
the resulting ABR Revolving Facility Borrowing or Swingline Borrowing. If the
Borrower fails to reimburse any L/C Disbursement when due, then the
Administrative Agent shall promptly notify the applicable Issuing Bank and
each
other Revolving Facility Lender of the applicable L/C Disbursement, the payment
then due from the Borrower in respect thereof and, in the case of a Revolving
Facility Lender, such Lender’s Revolving Facility Percentage thereof. Promptly
following receipt of such notice, each Revolving Facility Lender shall pay
to
the Administrative Agent in Dollars its Revolving Facility Percentage of the
payment then due from the Borrower in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and
Section 2.06 shall apply, mutatis mutandis,
to the
payment obligations of the Revolving Facility Lenders), and the Administrative
Agent shall promptly pay to the applicable Issuing Bank the amounts so received
by it from the Revolving Facility Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the
applicable Issuing Bank or, to the extent that Revolving Facility Lenders have
made payments pursuant to this paragraph to reimburse such Issuing Bank, then
to
such Lenders and such Issuing Bank as their interests may appear. Any payment
made by a Revolving Facility Lender pursuant to this paragraph to reimburse
an
Issuing Bank for any L/C Disbursement (other than the funding of an ABR
Revolving Loan or a Swingline Borrowing as contemplated above) shall not
constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such L/C Disbursement.
-55-
(f) Obligations
Absolute.
The
obligation of the Borrower to reimburse L/C Disbursements as provided in
paragraph (e) of this Section shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement under any and all circumstances whatsoever and irrespective
of
(i) any lack of validity or enforceability of any Letter of Credit, (any
Bankers’ Acceptance or this Agreement, or any term or provision therein, (ii)
any draft or other document presented under a Letter of Credit or Bankers’
Acceptance proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment
by
the applicable Issuing Bank under a Letter of Credit or Bankers’ Acceptance
against presentation of a draft or other document that does not comply with
the
terms of such Letter of Credit or Bankers’ Acceptance or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, the Borrower’s obligations
hereunder. Neither the Administrative Agent, the Lenders nor any Issuing Bank,
nor any of their Related Parties, shall have any liability or responsibility
by
reason of or in connection with the issuance or transfer of any Letter of Credit
or Bankers’ Acceptance or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to
any
Letter of Credit or Bankers’ Acceptance (including any document required to make
a drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of such Issuing Bank, or
any
of the circumstances referred to in clauses (i), (ii) or (iii) of the first
sentence; provided,
that
the foregoing shall not be construed to excuse the applicable Issuing Bank
from
liability to the Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower
that are determined by a final and binding decision of a court of competent
jurisdiction to have been caused by such Issuing Bank’s failure to exercise care
when determining whether drafts and other documents presented under a Letter
of
Credit or Bankers’ Acceptance) comply with the terms thereof. The parties hereto
expressly agree that, in the absence of gross negligence or willful misconduct
on the part of the applicable Issuing Bank, such Issuing Bank shall be deemed
to
have exercised care in each such determination. In furtherance of the foregoing
and without limiting the generality thereof, the parties agree that, with
respect to documents presented which appear on their face to be in substantial
compliance with the terms of a Letter of Credit (or Bankers’ Acceptance,) the
applicable Issuing Bank may, in its sole discretion, either accept and make
payment upon such documents without responsibility for further investigation,
regardless of any notice or information to the contrary or refuse to accept
and
make payment upon such documents if such documents are not in strict compliance
with the terms of such Letter of Credit.
(g) Disbursement
Procedures.
The
applicable Issuing Bank shall, promptly following its receipt thereof, examine
all documents purporting to represent a demand for payment (or creation of
a
Bankers’ Acceptance under a Letter of Credit or any presentation for payment of
a Bankers’ Acceptance. Such Issuing Bank shall promptly notify the
Administrative Agent and the Borrower by telephone (confirmed by telecopy)
of
any such demand for payment or Bankers’ Acceptance) and whether such Issuing
Bank has made or will make a L/C Disbursement thereunder; provided,
that
any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation
-56-
(h) Interim
Interest.
If an
Issuing Bank shall make any L/C Disbursement, then, unless the Borrower shall
reimburse such L/C Disbursement in full on the date such L/C Disbursement is
made, the unpaid amount thereof shall bear interest, for each day from and
including the date such L/C Disbursement is made to but excluding the date
that
the Borrower reimburses such L/C Disbursement, at the rate per annum then
applicable to ABR Revolving Loans; provided,
that,
if such L/C Disbursement is not reimbursed by the Borrower when due pursuant
to
paragraph (e) of this Section, then Section 2.13(c) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
applicable Issuing Bank, except that interest accrued on and after the date
of
payment by any Revolving Facility Lender pursuant to paragraph (e) of this
Section to reimburse such Issuing Bank shall be for the account of such
Revolving Facility Lender to the extent of such payment.
(i) Replacement
of an Issuing Bank.
An
Issuing Bank may be replaced at any time by written agreement among the
Borrower, the Administrative Agent, the replaced Issuing Bank and the successor
Issuing Bank. The Administrative Agent shall notify the Lenders of any such
replacement of an Issuing Bank. At the time any such replacement shall become
effective, the Borrower shall pay all unpaid fees accrued for the account of
the
replaced Issuing Bank pursuant to Section 2.12. From and after the
effective date of any such replacement, (i) the successor Issuing Bank shall
have all the rights and obligations of the replaced Issuing Bank under this
Agreement with respect to Letters of Credit to be issued thereafter and (ii)
references herein to the term “Issuing Bank” shall be deemed to refer to such
successor or to any previous Issuing Bank, or to such successor and all previous
Issuing Banks, as the context shall require. After the replacement of an Issuing
Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of such Issuing Bank under
this
Agreement with respect to Letters of Credit or Bankers’ Acceptances issued by it
prior to such replacement but shall not be required to issue additional Letters
of Credit.
(j) Cash
Collateralization.
If any
Event of Default shall occur and be continuing, (i) in the case of an Event
of
Default described in Section 7.01(h) or (i), on the Business Day or (ii) in
the case of any other Event of Default, on the third Business Day, in each
case,
following the date on which the Borrower receives notice from the Administrative
Agent (or, if the maturity of the Loans has been accelerated, Revolving Facility
Lenders with Revolving L/C Exposure representing greater than 50% of the total
Revolving L/C Exposure) demanding the deposit of cash collateral pursuant to
this paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash equal to the Revolving L/C Exposure as of such date
plus any accrued and unpaid interest thereon; provided,
that
upon the occurrence of any Event of Default with respect to the Borrower
described in clause (h) or (i) of Section 7.01, the obligation to
deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other notice
of any kind. Each such deposit pursuant to this paragraph shall be held by
the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative Agent
shall
have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and
sole
-57-
(k) Additional
Issuing Banks.
From
time to time, the Borrower may by notice to the Administrative Agent designate
any Revolving Facility Lender (in addition to Credit Suisse) each of which
agrees (in its sole discretion) to act in such capacity and is reasonably
satisfactory to the Administrative Agent as an Issuing Bank. Each such
additional Issuing Bank shall execute a counterpart of this Agreement upon
the
approval of the Administrative Agent (which approval shall not be unreasonably
withheld) and shall thereafter be an Issuing Bank hereunder for all
purposes.
(l) Reporting.
Unless
otherwise requested by the Administrative Agent, each Issuing Bank shall (i)
provide to the Administrative Agent copies of any notice received from the
Borrower pursuant to Section 2.05(b) no later than the next Business Day
after receipt thereof and (ii) report in writing to the Administrative Agent
(A)
on or prior to each Business Day on which such Issuing Bank expects to issue,
amend or extend any Letter of Credit, the date of such issuance, amendment
or
extension, and the aggregate face amount of the Letters of Credit to be issued,
amended or extended by it and outstanding after giving effect to such issuance,
amendment or extension occurred (and whether the amount thereof changed), and
the Issuing Bank shall be permitted to issue, amend or extend such Letter of
Credit if the Administrative Agent shall not have advised the Issuing Bank
that
such issuance, amendment or extension would not be in conformity with the
requirements of this Agreement, (B) on each Business Day on which such Issuing
Bank makes any L/C Disbursement (or creates any Bankers’ Acceptance), the date
of such L/C Disbursement (or Bankers’ Acceptance) and the amount of such L/C
Disbursement (or Bankers’ Acceptance) and (C) on any other Business Day, such
other information as the Administrative Agent shall reasonably request,
including but not limited to prompt verification of such information as may
be
requested by the Administrative Agent.
SECTION
2.06. Funding
of Borrowings.
v)
Each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds by 12:00 noon, Local
Time, to the account of the Administrative Agent most recently designated by
it
for such purpose by notice to the Lenders; provided,
that
Swingline Loans shall be made as provided in Section 2.04. The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like
-58-
(b) Unless
the Administrative Agent shall have received notice from a Lender prior to
the
proposed date of any Borrowing that such Lender will not make available to
the
Administrative Agent such Lender’s share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date
in
accordance with paragraph (a) of this Section and may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. In
such
event, if a Lender has not in fact made its share of the applicable Borrowing
available to the Administrative Agent, then the applicable Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand
(without duplication) such corresponding amount with interest thereon, for
each
day from and including the date such amount is made available to the Borrower
to
but excluding the date of payment to the Administrative Agent, at (i) in the
case of such Lender, the greater of (A) the Federal Funds Effective Rate and
(B)
a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans at such time. If such Lender pays
such
amount to the Administrative Agent, then such amount shall constitute such
Lender’s Loan included in such Borrowing.
SECTION
2.07. Interest
Elections
.
vi)
Each
Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurocurrency Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurocurrency Borrowing, may elect Interest
Periods therefor, all as provided in this Section. The Borrower may elect
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each
such
portion shall be considered a separate Borrowing. This Section shall not apply
to Swingline Borrowings, which may not be converted or continued.
(b) To
make
an election pursuant to this Section, the Borrower shall notify the
Administrative Agent of such election by telephone by the time that a Borrowing
Request would be required under Section 2.03 if the Borrower were
requesting a Borrowing of the Type resulting from such election to be made
on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery
or
telecopy to the Administrative Agent of a written Interest Election Request
in a
form approved by the Administrative Agent and signed by the
Borrower.
(c) Each
telephonic and written Interest Election Request shall be irrevocable and shall
specify the following information in compliance with
Section 2.02:
(i) the
Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case
the
information to be
-59-
specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the
effective date of the election made pursuant to such Interest Election Request,
which shall be a Business Day;
(iii) whether
the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;
and
(iv) if
the
resulting Borrowing is a Eurocurrency Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by clause (a) of the definition of the term “Interest
Period.”
If
any
such Interest Election Request requests a Eurocurrency Borrowing but does not
specify an Interest Period, then the Borrower shall be deemed to have selected
an Interest Period of one month’s duration.
(d) Promptly
following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender to which such Interest Election Request relates of
the
details thereof and of such Lender’s portion of each resulting
Borrowing.
(e) If
the
Borrower fails to deliver a timely Interest Election Request with respect to
a
Eurocurrency Borrowing prior to the end of the Interest Period applicable
thereto, then, unless such Borrowing is repaid as provided herein, at the end
of
such Interest Period such Borrowing shall be converted to an ABR Borrowing.
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the written request
(including a request through electronic means) of the Required Lenders, so
notifies the Borrower, then, so long as an Event of Default is continuing (i)
no
outstanding Borrowing may be converted to or continued as a Eurocurrency
Borrowing and (ii) unless repaid, each Eurocurrency Borrowing shall be converted
to an ABR Borrowing at the end of the Interest Period applicable
thereto.
SECTION
2.08. Termination
and Reduction of Commitments.
vii)
Unless
previously terminated, the Revolving Facility Commitments shall terminate on
the
Revolving Facility Maturity Date.
(b) The
Borrower may at any time terminate, or from time to time reduce, the Revolving
Facility Commitments; provided,
that
(i) each reduction of the Revolving Facility Commitments shall be in an amount
that is an integral multiple of $1.0 million and not less than $5.0 million
(or,
if less, the remaining amount of the Revolving Facility Commitments) and (ii)
the Borrower shall not terminate or reduce the Revolving Facility Commitments
if, after giving effect to any concurrent prepayment of the Revolving Facility
Loans in accordance with Section 2.11, the Revolving Facility Credit
Exposure would exceed the total Revolving Facility Commitments.
(c) The
Borrower shall notify the Administrative Agent of any election to terminate
or
reduce the Revolving Facility Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction,
-60-
SECTION
2.09. Repayment
of Loans; Evidence of Debt
.
viii)
The
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Revolving Facility Lender the then unpaid principal
amount of each Revolving Facility Loan to the Borrower on the Revolving Facility
Maturity Date, (ii) to the Administrative Agent for the account of each Lender
the then unpaid principal amount of each Term Loan of such Lender as provided
in
Section 2.10 and (iii) to the Swingline Lender the then unpaid principal
amount of each Swingline Loan on the Revolving Facility Maturity
Date.
(b) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting
from each Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time
hereunder.
(c) The
Administrative Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder, the Facility and Type thereof and the
Interest Period (if any) applicable thereto, (ii) the amount of any principal
or
interest due and payable or to become due and payable from the Borrower to
each
Lender hereunder and (iii) any amount received by the Administrative Agent
hereunder for the account of the Lenders and each Lender’s share
thereof.
(d) The
entries made in the accounts maintained pursuant to paragraph (b) or (c) of
this Section shall be prima facie evidence of the existence and amounts of
the
obligations recorded therein; provided,
that
the failure of any Lender or the Administrative Agent to maintain such accounts
or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with the terms of this
Agreement.
(e) Any
Lender may request that Loans made by it be evidenced by a promissory note
(a
“Note”).
In
such event, the Borrower shall prepare, execute and deliver to such Lender
a
promissory note payable to the order of such Lender (or, if requested by such
Lender, to such Lender and its registered assigns) and in a form approved by
the
Administrative Agent and reasonably acceptable to the Borrower. Thereafter,
the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one
or more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and
its
registered assigns).
-61-
SECTION
2.10. Repayment
of Term Loans and Revolving Facility Loans.
ix) Subject
to the other paragraphs of this Section, (i) the Borrower shall repay Term
B
Borrowings on each date set forth below in the aggregate principal amount set
forth opposite such date (each such date being referred to as a “Term
B
Loan Installment Date”)
(if
any such date is not a Business Day, then the applicable Term B Loan Installment
Date shall be deemed to be the immediately preceding Business Day):
|
Date
|
Amount
of Term B Borrowings
to
Be Repaid
|
|
December
31, 2006
|
$1,687,500
|
|
March
31, 2007
|
$1,687,500
|
|
June
30, 2007
|
$1,687,500
|
|
September
30, 2007
|
$1,687,500
|
|
December
31, 2007
|
$1,687,500
|
|
March
31, 2008
|
$1,687,500
|
|
June
30, 2008
|
$1,687,500
|
|
September
30, 2008
|
$1,687,500
|
|
December
31, 2008
|
$1,687,500
|
|
March
31, 2009
|
$1,687,500
|
|
June
30, 2009
|
$1,687,500
|
|
September
30, 2009
|
$1,687,500
|
|
December
31, 2009
|
$1,687,500
|
|
March
31, 2010
|
$1,687,500
|
|
June
30, 2010
|
$1,687,500
|
|
September
30, 2010
|
$1,687,500
|
|
December
31, 2010
|
$1,687,500
|
|
March
31, 2011
|
$1,687,500
|
|
June
30, 2011
|
$1,687,500
|
|
September
30, 2011
|
$1,687,500
|
|
December
31, 2011
|
$1,687,500
|
|
March
31, 2012
|
$1,687,500
|
|
June
30, 2012
|
$1,687,500
|
|
September
30, 2012
|
$1,687,500
|
|
December
31, 2012
|
$1,687,500
|
|
March
31, 2013
|
$1,687,500
|
|
June
30, 2013
|
$1,687,500
|
|
Term
B Facility Maturity Date
|
$629,437,500
or remainder
|
(ii) in
the
event that any Incremental Term Loans are made on an Increased Amount Date,
the
Borrower shall repay such Incremental Term Loans on the dates and in the amounts
set forth in the Incremental Assumption Agreement (each such date being referred
to as an “Incremental
Term Loan Installment Date”);
and
-62-
(iii) to
the
extent not previously paid, outstanding Term Loans shall be due and payable
on
the applicable Term Facility Maturity Date.
(b) To
the
extent not previously paid, outstanding Revolving Facility Loans shall be due
and payable on the Revolving Facility Maturity Date.
(c) Prepayment
of the Term Loans from:
(i) all
Net
Proceeds pursuant to Section 2.11(b) and Excess Cash Flow pursuant to
Section 2.11(c) shall be applied to the Term Loans pro rata among the Term
Facilities, with the application thereof (x) to reduce in order of maturity
the
unpaid quarterly scheduled amortization payments under clause (a) above for
the
next 24 calendar months, and (y) thereafter, to reduce on a pro rata basis
(based on the amount of such amortization payments) the remaining scheduled
amortization payments in respect of Term Loans.
(ii) any
optional prepayments of the Term Loans pursuant to Section 2.11(a) shall be
applied as the Borrower may direct.
(d) Any
mandatory prepayment of Term Loans pursuant to Section 2.11(b) or (c) shall
be
applied so that the aggregate amount of such prepayment is allocated among
the
Term B Loans and Other Term Loans, if any, pro
rata
based on
the aggregate principal amount of outstanding Term B Loans and Other Term Loans,
if any (unless, with respect to Other Term Loans, the Incremental Assumption
Agreement relating thereto does not so require) irrespective of whether such
outstanding Term Loans are Base Rate Loans or Eurodollar Rate Loans; provided
that if no Lenders exercise the right to waive a given mandatory prepayment
of
the Term Loans pursuant to Section 2.11(f), then, with respect to such mandatory
prepayment, prior to the repayment of any Term Loan, the Borrower may select
the
Borrowing or Borrowings to be repaid and shall notify the Administrative Agent
by telephone (confirmed by telecopy) of such selection not later than 1:00
p.m.,
Local Time, (i) in the case of an ABR Borrowing, one Business Day before the
scheduled date of such repayment and (ii) in the case of a Eurocurrency
Borrowing, three Business Days before the scheduled date of such repayment.
Prior to any repayment of any Revolving Facility Loans, the Borrower shall
select the Borrowing or Borrowings under the Revolving Facility to be repaid
and
shall notify the Administrative Agent by telephone (confirmed by telecopy)
of
such selection not later than 1:00 p.m., Local Time, (i) in the case of an
ABR
Borrowing, one Business Day before the scheduled date of such repayment and
(ii)
in the case of a Eurocurrency Borrowing, three Business Days before the
scheduled date of such repayment. Each repayment of a Borrowing (x) in the
case
of the Revolving Facility, shall be applied to the Revolving Facility Loans
included in the repaid Borrowing such that each Revolving Facility Lender
receives its ratable share of such repayment (based upon the respective
Revolving Facility Credit Exposures of the Revolving Facility Lenders at the
time of such repayment) and (y) in all other cases, shall be applied ratably
to
the Loans included in the repaid Borrowing. Notwithstanding anything to the
contrary in the immediately preceding sentence, prior to any repayment of a
Swingline Loan hereunder, the Borrower shall select the Borrowing or Borrowings
to be repaid and shall notify the Administrative Agent by telephone (confirmed
by telecopy) of such selection not
-63-
SECTION
2.11. Prepayment
of Loans.
x)
The
Borrower shall have the right at any time and from time to time to prepay any
Loan in whole or in part, without premium or penalty (but subject to
Section 2.16), in an aggregate principal amount that is an integral
multiple of the Borrowing Multiple and not less than the Borrowing Minimum
or,
if less, the amount outstanding, subject to prior notice in accordance with
Section 2.10(d), which notice shall be irrevocable except to the extent
conditioned on a refinancing of all or any portion of the
Facilities.
(b) The
Borrower shall apply all Net Proceeds promptly upon receipt thereof to prepay
Term Loans in accordance with paragraphs (c) and (d) of Section 2.10.
Notwithstanding the foregoing, the Borrower may retain Net Proceeds pursuant
to
clause (b) of the definition thereof, provided, that the Total Net First Lien
Leverage Ratio on the last day of the Borrower’s then most recently completed
fiscal quarter for which financial statements are available shall be less than
or equal to 2.00 to 1.00.
(c) Not
later
than 90 days after the end of each Excess Cash Flow Period, the Borrower shall
calculate Excess Cash Flow for such Excess Cash Flow Period and shall apply
an
amount equal to (i) the Required Percentage of such Excess Cash Flow,
minus
(ii) to
the extent not financed, using the proceeds of, without duplication, the
incurrence of Indebtedness and the sale or issuance of any Equity Interests
(including any capital contributions), the sum of (A) the amount of any
voluntary prepayments during such Excess Cash Flow Period of Term Loans (and
with respect to the Excess Cash Flow Period ending December 29, 2007, plus
the
amount of any voluntary prepayments of Term Loans made prior to such Excess
Cash
Flow Period) and (B) the amount of any permanent voluntary reductions during
such Excess Cash Flow Period of Revolving Facility Commitments to the extent
that an equal amount of Revolving Facility Loans was simultaneously repaid,
to
prepay Term Loans in accordance with paragraphs (c) and (d) of
Section 2.10. Not later than the date on which the Borrower is required to
deliver financial statements with respect to the end of each Excess Cash Flow
Period under Section 5.04(a), the Borrower will deliver to the
Administrative Agent a certificate signed by a Financial Officer of the Borrower
setting forth the amount, if any, of Excess Cash Flow for such fiscal year
and
the calculation thereof in reasonable detail.
(d) In
the
event and on such occasion that the total Revolving Facility Credit Exposure
exceeds the total Revolving Facility Commitments, the Borrower shall prepay
Revolving Facility Borrowings or Swingline Borrowings (or, if no such Borrowings
are outstanding, deposit cash collateral in an account with the Administrative
Agent pursuant to Section 2.05(j)) in an aggregate amount equal to such
excess.
(e) In
the
event and on such occasion as the Revolving L/C Exposure exceeds the Letter
of
Credit Sublimit, the Borrower shall deposit cash collateral in an account with
the Administrative Agent pursuant to Section 2.05(j) in an amount equal to
such
excess.
(f) Anything
contained herein to the contrary notwithstanding, in the event the Borrower
is
required to make any mandatory prepayment (a “Waivable Mandatory Prepayment”) of
the Term Loans, not less than three Business Days prior to the date
(the
-64-
(g) If
as a
result of changes in currency exchange rates, on any Revaluation Date, (i)
the
total Revolving Credit Facility Credit Exposure exceeds the total Revolving
Facility Commitments, (ii) the Revolving L/C Exposure exceeds the Letter of
Credit Sublimit or (iii) the Revolving L/C Exposure with respect to all
Alternate Currency Letters of Credit exceeds $15.0 million, the Borrower shall
within five days of such Revaluation Date (x) prepay Revolving Facility
Borrowings or Swingline Borrowings or (y) deposit cash collateral in an account
with the Administrative Agent pursuant to Section 2.05(j), in an aggregate
amount such that the applicable exposure does not exceed the applicable
commitment, sublimit or amount set forth above.
SECTION
2.12. Fees.
xi)
The
Borrower agrees to pay to each Lender (other than any Defaulting Lender),
through the Administrative Agent, three Business Days after the last Business
Day of March, June, September and December in each year, and three Business
Days
after the date on which the Revolving Facility Commitments of all the Lenders
shall be terminated as provided herein, a commitment fee (a “Commitment
Fee”)
on the
daily amount of the Available Unused Commitment of such Lender during the
preceding quarter (or other period commencing with the Closing Date or ending
with the date on which the last of the Commitments of such Lender shall be
terminated) at a rate equal to the Applicable Commitment Fee. All Commitment
Fees shall be computed on the basis of the actual number of days elapsed in
a
year of 360 days. For the purpose of calculating any Lender’s Commitment Fee,
the outstanding Swingline Loans during the period for which such Lender’s
Commitment Fee is calculated shall be deemed to be zero. The Commitment Fee
due
to each Lender shall commence to accrue on the Closing Date and shall cease
to
accrue on the date on which the last of the Commitments of such Lender shall
be
terminated as provided herein.
(b) The
Borrower from time to time agrees to pay (i) to each Revolving Facility Lender
(other than any Defaulting Lender),
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(c) The
Borrower agrees to pay to the Administrative Agent, for the account of the
Administrative Agent, the agency fees set forth in the Fee Letter, as amended,
restated, supplemented or otherwise modified from time to time, at the times
specified therein (the “Administrative
Agent Fees”).
(d) All
Fees
shall be paid on the dates due, in immediately available funds, to the
Administrative Agent for distribution, if and as appropriate, among the Lenders,
except that Issuing Bank Fees shall be paid directly to the applicable Issuing
Banks. Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION
2.13. Interest.
xii)
The
Loans comprising each ABR Borrowing (including each Swingline Loan) shall bear
interest at the ABR plus the Applicable Margin.
(b) The
Loans
comprising each Eurocurrency Borrowing shall bear interest at the Adjusted
LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable
Margin.
(c) Notwithstanding
the foregoing, if any principal of or interest on any Loan or any Fees or other
amount payable by the Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, at a rate per annum equal to (i)
in
the case of overdue principal of any Loan, 2% plus the rate otherwise applicable
to such Loan as provided in the preceding paragraphs of this Section or
(ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans
as provided in paragraph (a) of this Section; provided,
that
this paragraph (c) shall not apply to any Event of Default that has been
waived by the Lenders pursuant to Section 9.08.
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(d) Accrued
interest on each Loan shall be payable in arrears (i) on each Interest Payment
Date for such Loan, (ii) in the case of Revolving Facility Loans, upon
termination of the Revolving Facility Commitments and (iii) in the case of
the
Term Loans, on the applicable Term Facility Maturity Date; provided,
that
(i) interest accrued pursuant to paragraph (c) of this Section shall
be payable on demand, (ii) in the event of any repayment or prepayment of any
Loan (other than a prepayment of an ABR Revolving Loan or Swingline Loans prior
to the end of the Availability Period), accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repayment or prepayment
and (iii) in the event of any conversion of any Eurocurrency Loan prior to
the
end of the current Interest Period therefor, accrued interest on such Loan
shall
be payable on the effective date of such conversion.
(e) All
interest hereunder shall be computed on the basis of a year of 360 days, except
that interest computed by reference to the ABR at times when the ABR is based
on
the Prime Rate shall be computed on the basis of a year of 365 days (or 366
days
in a leap year), and in each case shall be payable for the actual number of
days
elapsed (including the first day but excluding the last day). The applicable
ABR, Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative
Agent, and such determination shall be conclusive absent manifest
error.
SECTION
2.14. Alternate
Rate of Interest.
If
prior to the commencement of any Interest Period for a Eurocurrency
Borrowing:
(a) the
Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining
the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period; or
(b) the
Administrative Agent is advised by the Required Lenders or the Majority Lenders
under the Revolving Facility that the Adjusted LIBO Rate or the LIBO Rate,
as
applicable, for such Interest Period will not adequately and fairly reflect
the
cost to such Lenders of making or maintaining their Loans included in such
Borrowing for such Interest Period;
then
the
Administrative Agent shall give notice thereof to the Borrower and the Lenders
by telephone or telecopy as promptly as practicable thereafter and, until the
Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurocurrency Borrowing denominated in such
currency shall be ineffective and such Borrowing shall be converted to or
continued as on the last day of the Interest Period applicable thereto an ABR
Borrowing, and (ii) if any Borrowing Request requests a Eurocurrency Borrowing,
such Borrowing shall be made as an ABR Borrowing.
SECTION
2.15. Increased
Costs.
xiii)
If any
Change in Law shall:
(i) impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or
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for
the
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate) or Issuing Bank;
or
(ii) impose
on
any Lender or Issuing Bank or the London interbank market any other condition
affecting this Agreement or Eurocurrency Loans made by such Lender or any Letter
of Credit or participation therein;
and
the
result of any of the foregoing shall be to increase the cost to such Lender
of
making or maintaining any Eurocurrency Loan (or of maintaining its obligation
to
make any such Loan) or to increase the cost to such Lender or Issuing Bank
of
participating in, issuing or maintaining any Letter of Credit or to reduce
the
amount of any sum received or receivable by such Lender or Issuing Bank
hereunder (whether of principal, interest or otherwise), then the Borrower
will
pay to such Lender or Issuing Bank, as applicable, such additional amount or
amounts as will compensate such Lender or Issuing Bank, as applicable, for
such
additional costs incurred or reduction suffered.
(b) If
any
Lender or Issuing Bank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on
such
Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or Issuing
Bank’s holding company, if any, as a consequence of this Agreement or the Loans
made by, or participations in Letters of Credit or Swingline Loans held by,
such
Lender, or the Letters of Credit issued by such Issuing Bank, to a level below
that which such Lender or such Issuing Bank or such Lender’s or such Issuing
Bank’s holding company could have achieved but for such Change in Law (taking
into consideration such Lender’s or such Issuing Bank’s policies and the
policies of such Lender’s or such Issuing Bank’s holding company with respect to
capital adequacy), then from time to time the Borrower shall pay to such Lender
or such Issuing Bank, as applicable, such additional amount or amounts as will
compensate such Lender or such Issuing Bank or such Lender’s or such Issuing
Bank’s holding company for any such reduction suffered.
(c) A
certificate of a Lender or an Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or Issuing Bank or its holding company,
as
applicable, as specified in paragraph (a) or (b) of this Section shall be
delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender or Issuing Bank, as applicable, the amount shown
as due on any such certificate within 10 days after receipt
thereof.
(d) Promptly
after any Lender or any Issuing Bank has determined that it will make a request
for increased compensation pursuant to this Section 2.15, such Lender or
Issuing Bank shall notify the Borrower thereof. Failure or delay on the part
of
any Lender or Issuing Bank to demand compensation pursuant to this Section
shall
not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such
compensation; provided,
that
the Borrower shall not be required to compensate a Lender or an Issuing Bank
pursuant to this Section for any increased costs or reductions incurred more
than 180 days prior to the date that such Lender or Issuing Bank, as applicable,
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender’s or Issuing Bank’s intention to claim
compensation therefor; provided,
further,
that,
if the Change in Law giving rise to such increased costs or reductions
is
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(e) The
foregoing provisions of this Section 2.15 shall not apply in the case of any
Change in Law in respect of Taxes, which shall instead be governed by Section
2.17.
SECTION
2.16. Break
Funding Payments.
In the
event of (a) the payment of any principal of any Eurocurrency Loan other than
on
the last day of an Interest Period applicable thereto (including as a result
of
an Event of Default), (b) the conversion of any Eurocurrency Loan other than
on
the last day of the Interest Period applicable thereto (including as a result
of
Section 2.20), (c) the failure to borrow, convert, continue or prepay any
Eurocurrency Loan on the date specified in any notice delivered pursuant hereto
or (d) the assignment of any Eurocurrency Loan other than on the last day of
the
Interest Period applicable thereto as a result of a request by a Borrower
pursuant to Section 2.19, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurocurrency Loan, such loss, cost or expense to any
Lender shall be deemed to be the amount determined by such Lender (it being
understood that the deemed amount shall not exceed the actual amount) to be
the
excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the Adjusted
LIBO
Rate that would have been applicable to such Loan, for the period from the
date
of such event to the last day of the then current Interest Period therefor
(or,
in the case of a failure to borrow, convert or continue a Eurocurrency Loan,
for
the period that would have been the Interest Period for such Loan), over (ii)
the amount of interest which would accrue on such principal amount for such
period at the interest rate which such Lender would bid were it to bid, at
the
commencement of such period, for deposits in dollars of a comparable amount
and
period from other banks in the Eurocurrency market. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt
thereof.
SECTION
2.17. Taxes.
xiv)
Any and
all payments by or on account of any obligation of any Loan Party hereunder
shall be made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes; provided,
that if
a Loan Party shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary
so
that after making all required deductions (including deductions applicable
to
additional sums payable under this Section) the Administrative Agent, any Lender
or any Issuing Bank, as applicable, receives an amount equal to the sum it
would
have received had no such deductions been made, (ii) such Loan Party shall
make
such deductions and (iii) such Loan Party shall timely pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.
(b) In
addition, the Loan Parties shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) Each
Loan
Party shall indemnify the Administrative Agent, each Lender and each Issuing
Bank, within 10 days after written demand therefor, for the full amount of
any
Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender
or such
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(d) As
soon
as practicable after any payment of Indemnified Taxes or Other Taxes by a Loan
Party to a Governmental Authority, such Loan Party shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Any
Lender that is entitled to an exemption from or reduction of withholding Tax
under the law of the jurisdiction in which the Borrower is located, or any
treaty to which such jurisdiction is a party, with respect to payments under
this Agreement shall deliver to the Borrower (with a copy to the Administrative
Agent), to the extent such Lender is legally entitled to do so, at the time
or
times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law as may reasonably be requested by
the
Borrower to permit such payments to be made without such withholding tax or
at a
reduced rate; provided,
that no
Lender shall have any obligation under this paragraph (e) with respect to
any withholding Tax imposed by any jurisdiction other than the United States
if
in the reasonable judgment of such Lender such compliance would subject such
Lender to any material unreimbursed cost or expense or would otherwise be
disadvantageous to such Lender in any material respect.
(f) Each
Lender shall deliver to the Borrower and the Administrative Agent on the date
on
which such Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the reasonable request of the Borrower or the Administrative
Agent), two original copies of whichever of the following is applicable: (i)
duly completed copies of Internal Revenue Service Form W-8BEN (or any subsequent
versions thereof or successors thereto), claiming eligibility for benefits
of an
income tax treaty to which the United States of America is a party, (ii) duly
completed copies of Internal Revenue Service Form W- 8ECI (or any subsequent
versions thereof or successors thereto), (iii) in the case of a Foreign Lender
claiming the benefits of the exemption for portfolio interest under
section 871(h) or 881(c) of the Code, (x) a certificate to the effect that
such Lender qualifies for such exemption and (y) duly completed copies of
Internal Revenue Service Form W-8BEN (or any subsequent versions thereof or
successors thereto), (iv) duly completed copies of Internal Revenue Service
Form
W-8IMY, together with forms and certificates described in clauses (i) through
(iii) above (and additional Form W-8IMYs) as may be required or (v) any other
form prescribed by applicable law as a basis for claiming exemption from or
a
reduction in United States federal withholding tax duly completed together
with
such supplementary documentation as may be prescribed by applicable law to
permit the Borrower to determine the withholding or deduction required to be
made. In addition, in each of the foregoing circumstances, each Lender shall
deliver such forms, if legally entitled to deliver such forms, promptly upon
the
obsolescence, expiration or invalidity of any form previously
delivered
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(g) If
the
Administrative Agent or a Lender receives a refund of any Indemnified Taxes
or
Other Taxes as to which it has been indemnified by a Loan Party or with respect
to which such Loan Party has paid additional amounts pursuant to this
Section 2.17, it shall pay over such refund to such Loan Party (but only to
the extent of indemnity payments made, or additional amounts paid, by such
Loan
Party under this Section 2.17 with respect to the Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent or such Lender (including any Taxes imposed with respect
to
such refund) as is determined by the Administrative Agent or such Lender, as
applicable, in good faith and in its sole discretion, and without interest
(other than any interest paid by the relevant Governmental Authority with
respect to such refund); provided,
that
such Loan Party, upon the request of the Administrative Agent or such Lender,
agrees to repay as soon as reasonably practicable the amount paid over to such
Loan Party (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender
in
the event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. This Section 2.17(g) shall not be
construed to require the Administrative Agent or any Lender to make available
its Tax returns (or any other information relating to its Taxes which it deems
confidential) to the Loan Parties or any other person.
SECTION
2.18. Payments
Generally; Pro Rata Treatment; Sharing of Set-offs.
xv)
Unless
otherwise specified, the Borrower shall make each payment required to be made
by
it hereunder (whether of principal, interest, fees or reimbursement of L/C
Disbursements, or of amounts payable under Section 2.15, 2.16, or 2.17, or
otherwise) prior to 2:00 p.m., Local Time, on the date when due, in immediately
available funds, without condition or deduction for any defense, recoupment,
set-off or counterclaim. Any amounts received after such time on any date may,
in the discretion of the Administrative Agent, be deemed to have been received
on the next succeeding Business Day for purposes of calculating interest
thereon. All such payments shall be made to the Administrative Agent to the
applicable account designated to the Borrower by the Administrative Agent,
except payments to be made directly to the applicable Issuing Bank or the
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16, 2.17 and 9.05 shall be made directly to the persons
entitled thereto. The Administrative Agent shall distribute any such payments
received by it for the account of any other person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on
a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
under the Loan Documents shall be made in Dollars. Any payment required to
be
made by the Administrative Agent hereunder shall be deemed to have been made
by
the time required if the Administrative Agent shall, at or
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(b) If
at any
time insufficient funds are received by and available to the Administrative
Agent from the Borrower to pay fully all amounts of principal, unreimbursed
L/C
Disbursements, interest and fees then due from the Borrower hereunder, such
funds shall be applied (i) first, towards payment of interest and fees then
due
from the Borrower hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties,
(ii)
second, towards payment of principal Swingline Loans and unreimbursed L/C
Disbursements then due from the Borrower hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed
L/C Disbursements then due to such parties, and (iii) third, towards payment
of
principal then due from the Borrower hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed
L/C Disbursements then due to such parties.
(c) If
any
Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Term
Loans, Revolving Facility Loans or participations in L/C Disbursements or
Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Term Loans, Revolving Facility Loans
and participations in L/C Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Term Loans, Revolving Facility Loans and participations
in
L/C Disbursements and Swingline Loans of other Lenders to the extent necessary
so that the benefit of all such payments shall be shared by the Lenders ratably
in accordance with the aggregate amount of principal of and accrued interest
on
their respective Term Loans, Revolving Facility Loans and participations in
L/C
Disbursements and Swingline Loans; provided,
that
(i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded
and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph (c) shall not be
construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained
by a
Lender as consideration for the assignment of or sale of a participation in
any
of its Loans or participations in L/C Disbursements to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph (c) shall apply). The
Borrower consents to the foregoing and agrees, to the extent it may effectively
do so under applicable law, that any Lender acquiring a participation pursuant
to the foregoing arrangements may exercise against the Borrower rights of
set-off and counterclaim with respect to such participation as fully as if
such
Lender were a direct creditor of the Borrower in the amount of such
participation.
(d) Unless
the Administrative Agent shall have received notice from the Borrower prior
to
the date on which any payment is due to the Administrative Agent for the account
of the Lenders or the applicable Issuing Bank hereunder that the Borrower will
not make such payment, the Administrative Agent may assume that the Borrower
has
made such payment on such date in accordance herewith and may, in reliance
upon
such assumption, distribute to the Lenders or the applicable Issuing Bank,
as
applicable, the amount due. In such
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(e) If
any
Lender shall fail to make any payment required to be made by it pursuant to
Section 2.04(c), 2.05(d) or (e), 2.06(b) or 2.18(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender’s obligations under
such Sections until all such unsatisfied obligations are fully
paid.
SECTION
2.19. Mitigation
Obligations; Replacement of Lenders.
xvi) If
any Lender requests compensation under Section 2.15, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office
for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or Affiliates, if, in the
reasonable judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as
applicable, in the future and (ii) would not subject such Lender to any material
unreimbursed cost or expense and would not otherwise be disadvantageous to
such
Lender in any material respect. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If
any
Lender requests compensation under Section 2.15, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, or is a
Defaulting Lender, then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided,
that
(i) the Borrower shall have received the prior written consent of the
Administrative Agent (and, if in respect of any Revolving Facility Commitment
or
Revolving Facility Loan, the Swingline Lender and the Issuing Bank), which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans and
participations in L/C Disbursements and Swingline Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest
and
fees) or the Borrower (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation under
Section 2.15 or payments required to be made pursuant to Section 2.17,
such assignment will result in a reduction in such compensation or payments.
Nothing in this Section 2.19 shall be deemed to prejudice any rights that
the Borrower may have against any Lender that is a Defaulting
Lender.
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(c) If
any
Lender (such Lender, a “Non-Consenting
Lender”)
has
failed to consent to a proposed amendment, waiver, discharge or termination
which pursuant to the terms of Section 9.08 requires the consent of all of
the Lenders affected and with respect to which the Required Lenders shall have
granted their consent, then the Borrower shall have the right (unless such
Non-Consenting Lender grants such consent) at its sole expense (including with
respect to the processing and recordation fee referred to in Section
9.04(b)(ii)(B)) to replace such Non-Consenting Lender by deeming such
Non-Consenting Lender to have assigned its Loans, and its Commitments hereunder
to one or more assignees reasonably acceptable to (i) the Administrative Agent
(unless, in the case of an assignment of Term Loans, such assignee is a Lender,
an Affiliate of a Lender or an Approved Fund) and (ii) if in respect of any
Revolving Facility Commitment or Revolving Facility Loan, the Swingline Lender
and the Issuing Bank); provided,
that:
(a) all Obligations of the Borrower owing to such Non-Consenting Lender
(including accrued Fees and any amounts under Sections 2.15, 2.16 and 2.17)
being replaced shall be paid in full to such Non-Consenting Lender concurrently
with such assignment, and (b) the replacement Lender shall purchase the
foregoing by paying to such Non-Consenting Lender a price equal to the principal
amount thereof plus accrued and unpaid interest thereon. No action by or consent
of the Non-Consenting Lender shall be necessary in connection with such
assignment, which shall be immediately and automatically effective upon payment
of such purchase price. In connection with any such assignment the Borrower,
Administrative Agent, such Non-Consenting Lender and the replacement Lender
shall otherwise comply with Section 9.04; provided, that if such
Non-Consenting Lender does not comply with Section 9.04 within three Business
Days after Borrower’s request, compliance with Section 9.04 shall not be
required to effect such assignment.
SECTION
2.20. Illegality(a) .
If any
Lender reasonably determines that any change in law has made it unlawful, or
that any Governmental Authority has asserted after the Closing Date that it
is
unlawful, for any Lender or its applicable lending office to make or maintain
any Eurocurrency Loans, then, on notice thereof by such Lender to the Borrower
through the Administrative Agent, any obligations of such Lender to make or
continue Eurocurrency Loans or to convert ABR Borrowings to Eurocurrency
Borrowings shall be suspended until such Lender notifies the Administrative
Agent and the Borrower that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, the Borrower shall upon demand
from such Lender (with a copy to the Administrative Agent), either convert
all
Eurocurrency Borrowings of such Lender to ABR Borrowings, either on the last
day
of the Interest Period therefor, if such Lender may lawfully continue to
maintain such Eurocurrency Borrowings to such day, or immediately, if such
Lender may not lawfully continue to maintain such Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted.
SECTION
2.21. Incremental
Commitments.
(a) The Borrower may, by written notice to the Administrative Agent from
time to time, request Incremental Term Loan Commitments and/or Incremental
Revolving Facility Commitments, as applicable, in an amount not to exceed the
Incremental Amount from one or more Incremental Term Lenders and/or Incremental
Revolving Facility Lenders (which may include any existing Lender) willing
to
provide such Incremental Term Loans and/or Incremental Revolving Facility
Commitments, as the case may be, in their own discretion; provided,
that
each Incremental Revolving Facility Lender shall be subject to the approval
of
the
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(b) The
Borrower and each Incremental Term Lender and/or Incremental Revolving Facility
Lender shall execute and deliver to the Administrative Agent an Incremental
Assumption Agreement and such other documentation as the Administrative Agent
shall reasonably specify to evidence the Incremental Term Loan Commitment of
such Incremental Term Lender and/or Incremental Revolving Facility Commitment
of
such Incremental Revolving Facility Lender. Each Incremental Assumption
Agreement shall specify the terms of the applicable Incremental Term Loans
and/or Incremental Revolving Facility Commitments; provided,
that
(i) the Other Term Loans shall rank pari passu or junior in right of payment
and
of security with the Term B Loans and, except as to pricing, amortization and
final maturity date, shall have (x) the same terms as the Term Loans, as
applicable, or (y) such other terms as shall be reasonably satisfactory to
the
Administrative Agent, (ii) the final maturity date of any Other Term Loans
shall
be no earlier than the Term B Facility Maturity Date, (iii) the weighted average
life to maturity of any Other Term Loans shall be no shorter than the remaining
weighted average life to maturity of the Term B Loans, (iv) the Other
Revolving Loans shall rank pari passu or junior in right of payment and of
security with the Revolving Loans and except as to pricing, amortization and
final maturity date, shall have (x) the same terms as the Revolving Facility
Loans, as applicable, or (y) such other terms as shall be reasonably
satisfactory to the Administrative Agent, (v) the final maturity date of any
Other Revolving Loans shall be no earlier than the Revolving Facility Maturity
Date, and (vi) the Borrower shall have no senior unsecured bridge term
loans or senior subordinated bridge terms loans outstanding at the time such
Other Term Loans or Other Revolving Loans are incurred unless such bridge loans
are repaid in full with the proceeds of the Other Term Loans or Other Revolving
Loans. Each of the parties hereto hereby agrees that, upon the effectiveness
of
any Incremental Assumption Agreement, this Agreement shall be amended to the
extent (but only to the extent) necessary to reflect the existence and terms
of
the Incremental Term Loan Commitments and/or Incremental Revolving Facility
Commitments evidenced thereby as provided for in Section 9.08(e). Any such
deemed amendment may be memorialized in writing by the Administrative Agent
with
the Borrower’s consent (not to be unreasonably withheld) and furnished to the
other parties hereto.
(c) Notwithstanding
the foregoing, no Incremental Term Loan Commitment or Incremental Revolving
Facility Commitment shall become effective under this Section 2.21 unless (i)
on
the date of such effectiveness, the conditions set forth in paragraphs (b)
and
(c)
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(d) Each
of
the parties hereto hereby agrees that the Administrative Agent may take any
and
all action as may be reasonably necessary to ensure that (i) all Incremental
Term Loans (other than Other Term Loans) in the form of additional Term B Loans,
when originally made, are included in each Borrowing of outstanding Term B
Loans
on a pro rata basis, and (ii) all Revolving Facility Loans in respect of
Incremental Revolving Facility Commitments (other than Other Revolving Loans),
when originally made, are included in each Borrowing of outstanding Revolving
Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall
apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required
by the Administrative Agent to effect the foregoing.
ARTICLE
III
Representations
and Warranties
On
the
date of each Credit Event as provided in Section 4.01, the Borrower represents
and warrants to each of the Lenders that:
SECTION
3.01. Organization;
Powers.
Except
as set forth on Schedule 3.01,
each of
Holdings, the Borrower and each of the Material Subsidiaries (a) is a
partnership, limited liability company or corporation duly organized, validly
existing and in good standing (or, if applicable in a foreign jurisdiction,
enjoys the equivalent status under the laws of any jurisdiction of organization
outside the United States) under the laws of the jurisdiction of its
organization, (b) has all requisite power and authority to own its property
and
assets and to carry on its business as now conducted, (c) is qualified to do
business in each jurisdiction where such qualification is required, except
where
the failure so to qualify would not reasonably be expected to have a Material
Adverse Effect, and (d) has the power and authority to execute, deliver and
perform its obligations under each of the Loan Documents and each other
agreement or instrument contemplated thereby to which it is or will be a party
and, in the case of the Borrower, to borrow and otherwise obtain credit
hereunder.
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SECTION
3.02. Authorization.
The
execution, delivery and performance by Holdings, the Borrower and each of the
Subsidiary Loan Parties of each of the Loan Documents to which it is a party,
and the borrowings hereunder and the transactions forming a part of the
Transactions (a) have been duly authorized by all corporate, stockholder,
partnership or limited liability company action required to be obtained by
Holdings, the Borrower and such Subsidiary Loan Parties and (b) will not (i)
violate (A) any provision of law, statute, rule or regulation, or of the
certificate or articles of incorporation or other constitutive documents
(including any partnership, limited liability company or operating agreements)
or by-laws of Holdings, the Borrower or any such Subsidiary Loan Party, (B)
any
applicable order of any court or any rule, regulation or order of any
Governmental Authority or (C) any provision of any indenture, certificate of
designation for preferred stock, agreement or other instrument to which
Holdings, the Borrower or any such Subsidiary Loan Party is a party or by which
any of them or any of their property is or may be bound, (ii) be in conflict
with, result in a breach of or constitute (alone or with notice or lapse of
time
or both) a default under, give rise to a right of or result in any cancellation
or acceleration of any right or obligation (including any payment) or to a
loss
of a material benefit under any such indenture, certificate of designation
for
preferred stock, agreement or other instrument, where any such conflict,
violation, breach or default referred to in clause (i) or (ii) of this
Section 3.02(b), would reasonably be expected to have, individually or in
the aggregate a Material Adverse Effect, or (iii) result in the creation or
imposition of any Lien upon or with respect to any property or assets now owned
or hereafter acquired by Holdings, the Borrower or any such Subsidiary Loan
Party, other than the Liens created by the Loan Documents and Permitted
Liens.
SECTION
3.03. Enforceability.
This
Agreement has been duly executed and delivered by Holdings and the Borrower
and
constitutes, and each other Loan Document when executed and delivered by each
Loan Party that is party thereto will constitute, a legal, valid and binding
obligation of such Loan Party enforceable against each such Loan Party in
accordance with its terms, subject to (i) the effects of bankruptcy, insolvency,
moratorium, reorganization, fraudulent conveyance or other similar laws
affecting creditors’ rights generally, (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and (iii) implied covenants of good faith and fair
dealing.
SECTION
3.04. Governmental
Approvals.
No
action, consent or approval of, registration or filing with or any other action
by any Governmental Authority or third party is or will be required in
connection with the Transactions, the perfection or maintenance of the Liens
created under the Security Documents or the exercise by any Agent or any Lender
of its rights under the Loan Documents or the remedies in respect of the
Collateral, except for (a) the filing of Uniform Commercial Code financing
statements, (b) filings with the United States Patent and Trademark Office
and
the United States Copyright Office and comparable offices in foreign
jurisdictions and equivalent filings in foreign jurisdictions, (c) recordation
of the Mortgages, (d) such as have been made or obtained and are in full force
and effect, (e) such actions, consents and approvals the failure of which to
be
obtained or made would not reasonably be expected to have a Material Adverse
Effect and (f) filings or other actions listed on Schedule 3.04.
SECTION
3.05. Financial
Statements.
xvii)
The
unaudited pro forma
consolidated balance sheet and related consolidated statements of income and
cash flows of the Borrower, together with its consolidated Subsidiaries
(including the notes thereto) (the “Pro
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(b) The
audited combined balance sheets of the Target as at the end of the 2003, 2004
and 2005 fiscal years (which fiscal years ended, in each case, on the Saturday
nearest the end of such calendar year), and the related audited combined
statements of income, stockholders’ equity, and cash flows for such fiscal
years, reported on by and accompanied by a report from Ernst & Young, copies
of which have heretofore been furnished to each Lender, present fairly in all
material respects the combined financial position of the Target as at such
date
and the combined results of operations, stockholders’ equity, and cash flows of
the Target for the years then ended.
SECTION
3.06. No
Material Adverse Effect.
Since
December 31, 2005, there has been no event, development or circumstance
that has or would reasonably be expected to have a Material Adverse
Effect.
SECTION
3.07. Title
to Properties; Possession Under Leases.
xviii) Each
of Holdings, the Borrower and the Subsidiaries has valid fee simple title to,
or
valid leasehold interests in, or easements or other limited property interests
in, all its Real Properties (including all Mortgaged Properties) and has valid
title to its personal property and assets, in each case, except for Permitted
Liens and except for defects in title that do not materially interfere with
its
ability to conduct its business as currently conducted or to utilize such
properties and assets for their intended purposes and except where the failure
to have such title would not reasonably be expected to have, individually or
in
the aggregate, a Material Adverse Effect. All such properties and assets are
free and clear of Liens, other than Permitted Liens.
(b) Each
of
the Borrower and the Subsidiaries has complied with all obligations under all
leases to which it is a party, except where the failure to comply would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, and all such leases are in full force and effect, except leases
in respect of which the failure to be in full force and effect would not
reasonably be expected to have a Material Adverse Effect. Except as set forth
on
Schedule 3.07(b), the Borrower and each of the Subsidiaries enjoys peaceful
and
undisturbed possession under all such leases, other than leases in respect
of
which the failure to enjoy peaceful and undisturbed possession would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
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(c) Each
of
the Borrower and the Subsidiaries owns or possesses, or is licensed to use,
all
patents, trademarks, service marks, trade names and copyrights, all applications
for any of the foregoing and all licenses and rights with respect to any of
the
foregoing necessary for the present conduct of its business, without any
conflict (of which the Borrower has been notified in writing) with the rights
of
others, and free from any burdensome restrictions on the present conduct of
the
Target, except where such conflicts and restrictions would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect
or
except as set forth on Schedule 3.07(c).
(d) As
of the
Closing Date, none of the Borrower or the Subsidiaries has received any notice
of any pending or contemplated condemnation proceeding affecting any material
portion of the Mortgaged Properties or any sale or disposition thereof in lieu
of condemnation that remains unresolved as of the Closing Date.
(e) None
of
the Borrower or the Subsidiaries is obligated on the Closing Date under any
right of first refusal, option or other contractual right to sell, assign or
otherwise dispose of any Mortgaged Property or any interest therein, except
as
permitted by Section 6.02 or 6.05.
SECTION
3.08. Subsidiaries.
xix) Schedule 3.08(a)
sets
forth as of the Closing Date the name and jurisdiction of incorporation,
formation or organization of each direct and indirect subsidiary of Holdings
and, as to each such subsidiary, the percentage of each class of Equity
Interests owned by Holdings or by any such subsidiary.
(b) As
of the
Closing Date, there are no outstanding subscriptions, options, warrants, calls,
rights or other agreements or commitments (other than stock options granted
to
employees or directors and directors’ qualifying shares) of any nature relating
to any Equity Interests of Holdings, the Borrower or any of the Subsidiaries,
except rights of employees to purchase Equity Interests of Holdings in
connection with the Transactions or as set forth on Schedule 3.08(b).
SECTION
3.09. Litigation;
Compliance with Laws.
xx) There
are no actions, suits or proceedings at law or in equity or, to the knowledge
of
the Borrower, investigations by or on behalf of any Governmental Authority
or in
arbitration now pending, or, to the knowledge of Holdings or the Borrower,
threatened in writing against or affecting Holdings or the Borrower or any
of
the Subsidiaries or any business, property or rights of any such person which
would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
(b) None
of
Holdings, the Borrower, the Subsidiaries and their respective properties or
assets is in violation of (nor will the continued operation of their material
properties and assets as currently conducted violate) any law, rule or
regulation (including any zoning, building, ordinance, code or approval or
any
building permit, but excluding any Environmental Laws, which are subject to
Section 3.16) or any restriction of record or agreement affecting any
Mortgaged Property, or is in default with respect to any judgment, writ,
injunction or decree of any Governmental Authority, where such violation or
default would reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect.
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SECTION
3.10. Federal
Reserve Regulations.
xxi) None
of Holdings, the Borrower or the Subsidiaries is engaged principally, or as
one
of its important activities, in the business of extending credit for the purpose
of purchasing or carrying Margin Stock.
(b) No
part
of the proceeds of any Loan will be used, whether directly or indirectly, and
whether immediately, incidentally or ultimately, (i) to purchase or carry Margin
Stock or to extend credit to others for the purpose of purchasing or carrying
Margin Stock or to refund indebtedness originally incurred for such purpose,
or
(ii) for any purpose that entails a violation of, or that is inconsistent with,
the provisions of the Regulations of the Board, including Regulation U or
Regulation X.
SECTION
3.11. Investment
Company Act.
None of
Holdings, the Borrower and the Subsidiaries is an “investment company” as
defined in, or subject to regulation under, the Investment Company Act of 1940,
as amended.
SECTION
3.12. Use
of
Proceeds.
The
Borrower will use the proceeds of the Revolving Facility Loans and Swingline
Loans, and may request the issuance of Letters of Credit, solely for general
corporate purposes (including, without limitation, for Permitted Business
Acquisitions) and, in the case of up to $30.0 million of Revolving Facility
Loans made on the Closing Date, to fund a portion of the consideration for
the
Acquisition. The Borrower will use the proceeds of the Term B Loans (a) to
fund a portion of the merger consideration for the Acquisition, (b) to
refinance the Refinanced Indebtedness and (c) to pay the Transaction
Expenses.
SECTION
3.13. Tax
Returns.
Except
as set forth on Schedule 3.13:
(a) Except
as
would not, individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect, (i) each of Holdings, the Borrower and the Subsidiaries
has filed or caused to be filed all federal, state, local and non-U.S. Tax
returns required to have been filed by it and (ii) taken as a whole, and each
such Tax return is true and correct;
(b) Each
of
Holdings, the Borrower and the Subsidiaries has timely paid or caused to be
timely paid all Taxes shown to be due and payable by it on the returns referred
to in clause (a) and all other Taxes or assessments (or made adequate
provision (in accordance with GAAP) for the payment of all Taxes due) with
respect to all periods or portions thereof ending on or before the Closing
Date
(except Taxes or assessments that are being contested in good faith by
appropriate proceedings in accordance with Section 5.03 and for which
Holdings, the Borrower or any of the Subsidiaries (as the case may be) has
set
aside on its books adequate reserves in accordance with GAAP), which Taxes,
if
not paid or adequately provided for, would, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; and
(c) Other
than as would not be, individually or in the aggregate, reasonably expected
to
have a Material Adverse Effect: as of the Closing Date, with respect to each
of
Holdings, the Borrower and the Subsidiaries, (i) there are no claims being
asserted in writing with respect to any Taxes, (ii) no presently effective
waivers or extensions of statutes of limitation with respect to
Taxes
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have
been given or requested and (iii) no Tax returns are being examined by, and
no
written notification of intention to examine has been received from, the
Internal Revenue Service or any other Taxing authority.
SECTION
3.14. No
Material Misstatements.
xxii) All
written information (other than the Projections, estimates and information
of a
general economic nature or general industry nature) (the “Information”)
concerning Holdings, the Borrower, the Subsidiaries, the Transactions and any
other transactions contemplated hereby included in the Information Memorandum
or
otherwise prepared by or on behalf of the foregoing or their representatives
and
made available to any Lenders or the Administrative Agent in connection with
the
Transactions or the other transactions contemplated hereby, when taken as a
whole, was true and correct in all material respects, as of the date such
Information was furnished to the Lenders and as of the Closing Date and did
not,
taken as a whole, contain any untrue statement of a material fact as of any
such
date or omit to state a material fact necessary in order to make the statements
contained therein, taken as a whole, not materially misleading in light of
the
circumstances under which such statements were made.
(b) The
Projections and estimates and information of a general economic nature prepared
by or on behalf of the Borrower or any of its representatives and that have
been
made available to any Lenders or the Administrative Agent in connection with
the
Transactions or the other transactions contemplated hereby (i) have been
prepared in good faith based upon assumptions believed by the Borrower to be
reasonable as of the date thereof (it being understood that actual results
may
vary materially from the Projections), as of the date such Projections and
estimates were furnished to the Lenders and as of the Closing Date, and (ii)
as
of the Closing Date, have not been modified in any material respect by the
Borrower.
SECTION
3.15. Employee
Benefit Plans.
xxiii) Except
as would not reasonably be expected, individually or in the aggregate, to have
a
Material Adverse Effect: (i) each Plan is in compliance in all material respects
with the applicable provisions of ERISA and the Code; (ii) no Reportable Event
has occurred during the past five years as to which the Borrower, Holdings,
any
of their Subsidiaries or any ERISA Affiliate was required to file a report
with
the PBGC, other than reports that have been filed; (iii) no Plan has any
Unfunded Pension Liability in excess of $20.0 million; (iv) no ERISA Event
has
occurred or is reasonably expected to occur; (v) none of Holdings, Borrower
and
the Subsidiaries has engaged in a “prohibited transaction” (as defined in
Section 406 of ERISA and Code Section 4975) in connection with any employee
pension benefit plan (as defined in Section 3(2) of ERISA) that would subject
Holdings, Borrower or any subsidiary to tax; and (vi) none of the Borrower,
Holdings, the Subsidiaries and the ERISA Affiliates (A) has received any written
notification that any Multiemployer Plan is in reorganization or has been
terminated within the meaning of Title IV of ERISA, or has knowledge that any
Multiemployer Plan is reasonably expected to be in reorganization or to be
terminated or (B) has incurred or is reasonably expected to incur any withdrawal
liability to any Multiemployer Plan.
(b) Each
of
Holdings, the Borrower and the Subsidiaries is in compliance (i) with all
applicable provisions of law and all applicable regulations and published
interpretations thereunder with respect to any employee pension benefit plan
or
other employee benefit plan governed by the laws of a jurisdiction other than
the United States and (ii) with the terms of any such plan, except, in each
case, for
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(c) Except
as
would not reasonably be expected to result in a Material Adverse Effect, there
are no pending, or to the knowledge of the Borrower, threatened claims (other
than claims for benefits in the normal course), sanctions, actions or lawsuits,
asserted or instituted against any Plan or any person as fiduciary or sponsor
of
any Plan that could result in liability to Holdings, Borrower, any Subsidiaries
or the ERISA Affiliates.
(d) Within
the last five years, no Plan of Holdings, Borrower, any Subsidiaries or the
ERISA Affiliates has been terminated, whether or not in a “standard termination”
as that term is used in Section 404(b)(1) of ERISA, that would reasonably be
expected to result in liability to Holdings, Borrower, any Subsidiaries of
the
ERISA Affiliates in excess of $20.0 million, nor has any Plan of Holdings,
Borrower, any Subsidiaries or the ERISA Affiliates (determined at any time
within the past five years) with Unfunded Pension Liabilities been transferred
outside of the “controlled group” (with the meaning of Section 4001(a)(14) of
ERISA) of Holdings, Borrower, any Subsidiaries or the ERISA Affiliates that
has
or would reasonably be expected to result in a Material Adverse
Effect.
SECTION
3.16. Environmental
Matters.
Except
as set forth in Schedule 3.16 and except as to matters that would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect: (i) no written notice, request for information, order, complaint
or penalty has been received by the Borrower or any of its Subsidiaries, and
there are no judicial, administrative or other actions, suits or proceedings
pending or, to the Borrower’s knowledge, threatened which allege a violation of
or liability under any Environmental Laws, in each case relating to the Borrower
or any of its Subsidiaries, (ii) each of the Borrower and its Subsidiaries
has
all environmental permits, licenses and other approvals necessary for its
operations to comply with all applicable Environmental Laws and is, and during
the term of all applicable statutes of limitation, has been, in compliance
with
the terms of such permits, licenses and other approvals and with all other
applicable Environmental Laws, (iii) to the Borrower’s knowledge, no Hazardous
Material is located at, on or under any property currently owned, operated
or
leased by the Borrower or any of its Subsidiaries that would reasonably be
expected to give rise to any cost, liability or obligation of the Borrower
or
any of its Subsidiaries under any Environmental Laws, and no Hazardous Material
has been generated, owned, treated, stored, handled or controlled by the
Borrower or any of its Subsidiaries and transported to or Released at any
location in a manner that would reasonably be expected to give rise to any
cost,
liability or obligation of the Borrower or any of its Subsidiaries under any
Environmental Laws and (iv) there are no agreements in which the Borrower or
any
of its Subsidiaries has expressly assumed or undertaken responsibility for
any
known or reasonably likely liability or obligation of any other person arising
under or relating to Environmental Laws, which in any such case has not been
made available to the Administrative Agent prior to the date
hereof.
SECTION
3.17. Security
Documents.
xxiv) The
Collateral Agreement is effective to create in favor of the Administrative
Agent
(for the benefit of the Secured Parties) a legal, valid and enforceable fully
perfected first priority security interest in the Collateral described therein
and proceeds thereof. In the case of the Pledged Collateral described in the
Collateral Agreement, when certificates or
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(b) When
the
Collateral Agreement or a summary thereof is properly filed in the United States
Patent and Trademark Office and the United States Copyright Office, and, with
respect to Collateral in which a security interest cannot be perfected by such
filings, upon the proper filing of the financing statements referred to in
paragraph (a) above, the Administrative Agent (for the benefit of the
Secured Parties) shall have a fully perfected first priority Lien on, and
security interest in, all right, title and interest of the Loan Parties
thereunder in all domestic Intellectual Property, in each case prior and
superior in right to any other person (it being understood that subsequent
recordings in the United States Patent and Trademark Office and the United
States Copyright Office may be necessary to perfect a lien on registered
trademarks and patents, trademark and patent applications and registered
copyrights acquired by the grantors after the Closing Date) (except Permitted
Liens).
(c) Each
Foreign Pledge Agreement, if any, shall be effective to create in favor of
the
Administrative Agent, for the benefit of the Secured Parties, a legal, valid
and
enforceable fully perfected first priority security interest in the Collateral
described therein and proceeds thereof to the fullest extent permissible under
applicable law. In the case of the Pledged Collateral described in a Foreign
Pledge Agreement, when certificates representing such Pledged Collateral (if
any) are delivered to the Administrative Agent (for the benefit of the Secured
Parties) shall have a fully perfected Lien on, and security interest in, all
right, title and interest of the Loan Parties in such Collateral and the
proceeds thereof, as security for the Obligations, in each case prior and
superior in right to any other person.
(d) Notwithstanding
anything herein (including this Section 3.17) or in any other Loan Document
to
the contrary, other than to the extent set forth in the applicable Foreign
Pledge Agreements, no Borrower or any other Loan Party makes any representation
or warranty as to the effects of perfection or non-perfection, the priority
or
the enforceability of any pledge of or security interest in any Equity Interests
of any Foreign Subsidiary that is not a Loan Party, or as to the rights and
remedies of the Agents or any Lender with respect thereto, under foreign
law.
SECTION
3.18. Location
of Real Property and Leased Premises.
xxv) The
Perfection Certificate completely and correctly sets forth and identifies,
in
all material respects, as of the Closing Date all material Real Property owned
by Holdings, the Borrower and the Subsidiary Loan Parties and the addresses
thereof. As of the Closing Date, Holdings, the Borrower and the Subsidiary
Loan
Parties own in fee all the Real Property set forth as being owned by them on
such schedules to the Perfection Certificate.
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(b) The
Perfection Certificate completely and correctly sets forth and identifies,
in
all material respects, as of the Closing Date, all material Real Property leased
by Holdings, the Borrower and the Subsidiary Loan Parties and the addresses
thereof and the leases pursuant to which the Real Property is leased. As of
the
Closing Date, Holdings, the Borrower and the Subsidiary Loan Parties have in
all
material respects valid leases in all the Real Property set forth as being
leased by them on such schedules to the Perfection Certificate.
SECTION
3.19. Solvency.
xxvi) Immediately
after giving effect to the Transactions on the Closing Date, (i) the fair value
of the assets of the Borrower (individually) and Holdings, the Borrower and
its
Subsidiaries on a consolidated basis, at a fair valuation, will exceed the
debts
and liabilities, direct, subordinated, unmatured, unliquidated, contingent
or
otherwise, of the Borrower (individually) and Holdings, the Borrower and its
Subsidiaries on a consolidated basis, respectively; (ii) the present fair
saleable value of the property of the Borrower (individually) and Holdings,
the
Borrower and its Subsidiaries on a consolidated basis will be greater than
the
amount that will be required to pay the probable liability of the Borrower
(individually) and Holdings, the Borrower and its Subsidiaries on a consolidated
basis, respectively, on their debts and other liabilities, direct, subordinated,
unmatured, unliquidated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (iii) the Borrower (individually)
and
Holdings, the Borrower and its Subsidiaries on a consolidated basis will be
able
to pay their debts and liabilities, direct, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured; and (iv)
the Borrower (individually) and Holdings, the Borrower and its Subsidiaries
on a
consolidated basis will not have unreasonably small capital with which to
conduct the businesses in which they are engaged as such businesses are now
conducted and are proposed to be conducted following the Closing
Date.
(b) On
the
Closing Date, neither Holdings nor the Borrower intends to, and neither Holdings
nor the Borrower believes that it or any of its subsidiaries will, incur debts
beyond its ability to pay such debts as they mature, taking into account the
timing and amounts of cash to be received by it or any such subsidiary and
the
timing and amounts of cash to be payable on or in respect of its Indebtedness
or
the Indebtedness of any such subsidiary.
SECTION
3.20. Labor
Matters.
Except
as, individually or in the aggregate, would not reasonably be expected to have
a
Material Adverse Effect: (a) there are no strikes or other labor disputes
pending or threatened against Holdings, the Borrower or any of the Subsidiaries;
(b) the hours worked and payments made to employees of Holdings, the Borrower
and the Subsidiaries have not been in violation of the Fair Labor Standards
Act
or any other applicable law dealing with such matters; and (c) all payments
due
from Holdings, the Borrower or any of the Subsidiaries or for which any claim
may be made against Holdings, the Borrower or any of the Subsidiaries, on
account of wages and employee health and welfare insurance and other benefits
have been paid or accrued as a liability on the books of Holdings, the Borrower
or such Subsidiary to the extent required by GAAP. Except as, individually
or in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect, the consummation of the Transactions will not give rise to a right
of
termination or right of renegotiation on the part of any union under any
material collective bargaining agreement to which Holdings, the Borrower or
any
of the Subsidiaries (or any predecessor) is a party or by which Holdings, the
Borrower or any of the Subsidiaries (or any predecessor) is bound.
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SECTION
3.21. Insurance.
Schedule 3.21
sets
forth a true, complete and correct description of all material insurance
maintained by or on behalf of Holdings, the Borrower or the Subsidiaries as
of
the Closing Date. As of such date, such insurance is in full force and effect.
SECTION
3.22. No
Default.
No
Default or Event of Default has occurred and is continuing or would result
from
the consummation of the transactions contemplated by this Agreement or any
other
Loan Document.
SECTION
3.23. Intellectual
Property; Licenses, Etc.
Except
as
would not reasonably be expected to have a Material Adverse Effect and as set
forth in Schedule 3.23, (a) the Borrower and each of its Subsidiaries owns,
or
possesses the right to use, all of the patents, patent rights, trademarks,
service marks, trade names, copyrights, mask works, domain names, and any and
all applications or registrations for any of the foregoing (collectively,
“Intellectual
Property Rights”)
that
are reasonably necessary for the operation of their respective businesses,
without conflict with the rights of any other person, (b) to the best knowledge
of the Borrower, neither the Borrower nor its Subsidiaries nor any intellectual
property right, proprietary right, product, process, method, substance, part,
or
other material now employed, sold or offered by or contemplated to be employed,
sold or offered by the Borrower or its Subsidiaries, is interfering with,
infringing upon, misappropriating or otherwise violating any intellectual
property rights of any person, and (c) no claim or litigation regarding any
of
the foregoing is pending or, to the best knowledge of the Borrower, threatened.
SECTION
3.24. Senior
Debt.
The
Obligations constitute “Senior Debt” (or the equivalent thereof) and “Designated
Senior Debt” (or the equivalent thereof) under the Senior Subordinated Notes
Indenture and under the documentation governing any other Indebtedness permitted
to be incurred hereunder constituting subordinated Indebtedness or any Permitted
Refinancing Indebtedness in respect of the Senior Subordinated Notes or such
other Indebtedness permitted to be incurred hereunder constituting subordinated
Indebtedness.
ARTICLE
IV
Conditions
of Lending
The
obligations of (a) the Lenders (including the Swingline Lender) to make Loans
and (b) any Issuing Bank to issue Letters of Credit or increase the stated
amounts of Letters of Credit hereunder (each, a “Credit
Event”)
are
subject to the satisfaction of the following conditions:
SECTION
4.01. All
Credit Events.
On the
date of each Borrowing and on the date of each issuance, amendment, extension
or
renewal of a Letter of Credit:
(a) The
Administrative Agent shall have received, in the case of a Borrowing, a
Borrowing Request as required by Section 2.03 (or a Borrowing Request shall
have been deemed given in accordance with the last paragraph of
Section 2.03) or, in the case of the issuance of a Letter of Credit, the
applicable Issuing Bank and the Administrative Agent shall have received a
notice
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requesting
the issuance of such Letter of Credit as required by
Section 2.05(b).
(b) (i)
In
the case of each Credit Event that occurs on the Closing Date, the conditions
in
Section 8.2(a)of the Acquisition Agreement (but only with respect to
representations and warranties that are material to the interests of the
Lenders) shall be satisfied, and the representations and warranties made in
Sections 3.01(b) and (d), 3.02(a), 3.03, 3.10, 3.11 and 3.24 shall be true
and
correct in all material respects; and (ii) in the case of each other Credit
Event, the representations and warranties set forth in the Loan Documents shall
be true and correct in all material respects as of such date (other than an
amendment, extension or renewal of a Letter of Credit without any increase
in
the stated amount of such Letter of Credit), as applicable, with the same effect
as though made on and as of such date, except to the extent such representations
and warranties expressly relate to an earlier date (in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date).
(c) In
the
case of each Credit Event that occurs after the Closing Date, at the time of
and
immediately after such Borrowing or issuance, amendment, extension or renewal
of
a Letter of Credit (other than an amendment, extension or renewal of a Letter
of
Credit without any increase in the stated amount of such Letter of Credit),
as
applicable, no Event of Default or Default shall have occurred and be continuing
or would result therefrom.
Each
such
Borrowing and each issuance, amendment, extension or renewal of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date of such Borrowing, issuance, amendment, extension or
renewal as applicable, as to the matters specified in paragraphs (b) and
(c) of this Section 4.01.
SECTION
4.02. First
Credit Event.
On the
Closing Date (which shall in no event be a date that occurs after December
28,
2006):
(a) The
Administrative Agent (or its counsel) shall have received from each party hereto
either (i) a counterpart of this Agreement signed on behalf of such party or
(ii) written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this Agreement)
that
such party has signed a counterpart of this Agreement.
(b) The
Administrative Agent shall have received, on behalf of itself, the Lenders
and
each Issuing Bank on the Closing Date, a favorable written opinion of
(i) Wachtell, Lipton, Xxxxx & Xxxx, special counsel for the Loan
Parties, in form and substance reasonably satisfactory to the Administrative
Agent, (ii) Xxxx Xxxxxxxx, in-house counsel for the Loan Parties, in form and
substance reasonably satisfactory to the Administrative Agent and (iii) local
counsel reasonably satisfactory to the Administrative Agent as specified on
Schedule 4.02(b),
in each
case (A) dated the Closing Date, (B) addressed to each Issuing Bank on the
Closing Date, the Administrative Agent and the Lenders and (C) in form and
substance reasonably satisfactory to the Administrative Agent
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and
covering such other matters relating to the Loan Documents as the Administrative
Agent shall reasonably request.
(c) The
Administrative Agent shall have received in the case of each Loan Party each
of
the items referred to in clauses (i), (ii), (iii) and (iv)
below:
(i) a
copy of
the certificate or articles of incorporation, certificate of limited partnership
or certificate of formation, including all amendments thereto, of each Loan
Party, (A) in the case of a corporation, certified as of a recent date by the
Secretary of State (or other similar official) of the jurisdiction of its
organization, and a certificate as to the good standing (to the extent such
concept or a similar concept exists under the laws of such jurisdiction) of
each
such Loan Party as of a recent date from such Secretary of State (or other
similar official) or (B) in the case of a partnership or limited liability
company, certified by the Secretary or Assistant Secretary of each such Loan
Party;
(ii) a
certificate of the Secretary or Assistant Secretary or similar officer of each
Loan Party dated the Closing Date and certifying
(A) that
attached thereto is a true and complete copy of the by-laws (or partnership
agreement, limited liability company agreement or other equivalent governing
documents) of such Loan Party as in effect on the Closing Date and at all times
since a date prior to the date of the resolutions described in clause (B)
below,
(B) that
attached thereto is a true and complete copy of resolutions duly adopted by
the
Board of Directors (or equivalent governing body) of such Loan Party (or its
managing general partner or managing member) authorizing the execution, delivery
and performance of the Loan Documents to which such person is a party and,
in
the case of the Borrower, the borrowings hereunder, and that such resolutions
have not been modified, rescinded or amended and are in full force and effect
on
the Closing Date,
(C) that
the
certificate or articles of incorporation, certificate of limited partnership
or
certificate of formation of such Loan Party has not been amended since the
date
of the last amendment thereto disclosed pursuant to clause (i)
above,
(D) as
to the
incumbency and specimen signature of each officer executing any Loan Document
or
any other document delivered in connection herewith on behalf of such Loan
Party
and
(E) as
to the
absence of any pending proceeding for the dissolution or liquidation of such
Loan Party or, to the knowledge of such person, threatening the existence of
such Loan Party;
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(iii) a
certificate of a director or another officer as to the incumbency and specimen
signature of the Secretary or Assistant Secretary or similar officer executing
the certificate pursuant to clause (ii) above; and
(iv) such
other documents as the Administrative Agent, the Lenders and any Issuing Bank
on
the Closing Date may reasonably request (including without limitation, tax
identification numbers and addresses).
(d) The
elements of the Collateral and Guarantee Requirement required to be satisfied
on
the Closing Date shall have been satisfied (other than in the case of any
security interest in the intended Collateral or any deliverable related to
the
perfection of security interests in the intended Collateral (other than any
Collateral the security interest in which may be perfected by the filing of
a
UCC financing statement or the delivery of stock certificates and the security
agreement giving rise to the security interest therein) that is not provided
on
the Closing Date after the Borrower’s use of commercially reasonable efforts to
do so, which such security interest or deliverable shall be delivered within
the
time periods specified with respect thereto in Schedule 4.02(d)) and the
Administrative Agent shall have received a completed Perfection Certificate
dated the Closing Date and signed by a Responsible Officer of the Borrower,
together with all attachments contemplated thereby, and the results of a search
of the Uniform Commercial Code (or equivalent) filings made with respect to
the
Loan Parties in the jurisdictions contemplated by the Perfection Certificate
and
copies of the financing statements (or similar documents) disclosed by such
search and evidence reasonably satisfactory to the Administrative Agent that
the
Liens indicated by such financing statements (or similar documents) are
Permitted Liens or have been released.
(e) The
Acquisition shall have been consummated or shall be consummated simultaneously
with or immediately following the closing under this Agreement in accordance
with the terms and conditions of the Acquisition as set forth in the Acquisition
Documents, without material amendment, supplement, modification or waiver
thereof which is materially adverse to the Lenders without the prior written
consent of the Joint Lead Arrangers.
(f) The
Equity Financing shall have been consummated.
(g) The
Borrower shall have received gross cash proceeds of (i) $750.0 million from
the
issuance of the Second Lien Notes or from senior unsecured bridge term loans
and
(ii) $425.0 million from the issuance of the Senior Subordinated Notes or from
senior subordinated bridge term loans.
(h) The
terms
and conditions of the Second Lien Notes and the Senior Subordinated Notes
(including terms and conditions relating to the interest rate, fees,
amortization, maturity, subordination (in the case of the Senior Subordinated
Notes), security (in the case of the Second Lien Notes), covenants, defaults
and
remedies) shall be as set forth in the Second Lien Notes Offering Memorandum
and
the Senior Subordinated Notes Indenture or otherwise reasonably satisfactory
to
the Administrative Agent.
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(i) All
amounts due or outstanding in respect of the Existing Credit Agreement shall
have been (or substantially simultaneously with the closing under this Agreement
shall be) paid in full, all commitments in respect thereof terminated and all
guarantees thereof and security therefore discharged and released, and the
Administrative Agent shall have received reasonably satisfactory evidence
thereof.
(j) The
Lenders shall have received the financial statements referred to in
Section 3.05.
(k) On
the
Closing Date, after giving effect to the Transactions and the other transactions
contemplated hereby, Holdings shall have outstanding no Indebtedness and the
Borrower and the Subsidiaries shall have outstanding no Indebtedness other
than
(i) the Loans and other extensions of credit under this Agreement, (ii) the
Second Lien Notes or senior unsecured bridge term loans, (iii) the Senior
Subordinated Notes or senior subordinated bridge term loans and (iv) other
Indebtedness permitted pursuant to Section 6.01.
(l) The
Lenders shall have received a solvency certificate substantially in the form
of
Exhibit B
and
signed by the Chief Financial Officer of the Borrower confirming the solvency
of
Borrower and its Subsidiaries on a consolidated basis after giving effect to
the
Transactions on the Closing Date.
(m) The
Agents shall have received all fees payable thereto or to any Lender on or
prior
to the Closing Date and, to the extent invoiced, all other amounts due and
payable pursuant to the Loan Documents on or prior to the Closing Date,
including, to the extent invoiced, reimbursement or payment of all reasonable
out-of-pocket expenses (including reasonable fees, charges and disbursements
of
Xxxxxx & Xxxxxxx LLP) required to be reimbursed or paid by the Loan Parties
hereunder or under any Loan Document.
(n) The
Administrative Agent shall have received all insurance certificates satisfying
the requirements of Section 5.02 of this Agreement. The Administrative Agent
shall have received all documentation and other information required by
regulatory authorities under applicable “know your customer” and anti-money
laundering rules and regulations, including without limitation, the USA PATRIOT
Act.
For
purposes of determining compliance with the conditions specified in this Section
4.02, each Lender shall be deemed to have consented to, approved or accepted
or
to be satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders unless
an officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
prior to the Closing Date specifying its objection thereto and such Lender
shall
not have made available to the Administrative Agent such Lender’s ratable
portion of the initial Borrowing.
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ARTICLE
V
Affirmative
Covenants
The
Borrower covenants and agrees with each Lender that so long as this Agreement
shall remain in effect (other than in respect of contingent indemnification
obligations for which no claim has been made) and until the Commitments have
been terminated and the Obligations (including principal of and interest on
each
Loan, all Fees and all other expenses or amounts payable under any Loan
Document) shall have been paid in full and all Letters of Credit and Bankers’
Acceptances have been canceled or have expired and all amounts drawn or paid
thereunder have been reimbursed in full, unless the Required Lenders shall
otherwise consent in writing, the Borrower will, and will cause each of the
Material Subsidiaries to:
SECTION
5.01. Existence;
Businesses and Properties.
xxvii) Do
or cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence, except, in the case of a Subsidiary of
the
Borrower, where the failure to do so would not reasonably be expected to have
a
Material Adverse Effect, and except as otherwise expressly permitted under
Section 6.05, and except for the liquidation or dissolution of Subsidiaries
if the assets of such Subsidiaries to the extent they exceed estimated
liabilities are acquired by the Borrower or a Wholly Owned Subsidiary of the
Borrower in such liquidation or dissolution; provided,
that
Subsidiary Loan Parties may not be liquidated into Subsidiaries that are not
Loan Parties and Domestic Subsidiaries may not be liquidated into Foreign
Subsidiaries.
(b) Except
where the failure to do so would not reasonably be expected to have a Material
Adverse Effect, do or cause to be done all things necessary to (i) lawfully
obtain, preserve, renew, extend and keep in full force and effect the permits,
franchises, authorizations, patents, trademarks, service marks, trade names,
copyrights, licenses and rights with respect thereto necessary to the normal
conduct of its business, (ii) comply in all material respects with all
applicable laws, rules, regulations (including any zoning, building ordinance,
code or approval or any building permits or any restrictions of record or
agreements affecting the Mortgaged Properties) and judgments, writs,
injunctions, decrees and orders of any Governmental Authority, whether now
in
effect or hereafter enacted, and (iii) at all times maintain and preserve all
property necessary to the normal conduct of its business and keep such property
in good repair, working order and condition and from time to time make, or
cause
to be made, all needful and proper repairs, renewals, additions, improvements
and replacements thereto necessary in order that the business carried on in
connection therewith, if any, may be properly conducted at all times (in each
case except as expressly permitted by this Agreement).
SECTION
5.02. Insurance.
xxviii) Maintain,
with financially sound and reputable insurance companies, insurance in such
amounts and against such risks as are customarily maintained by similarly
situated companies engaged in the same or similar businesses operating in the
same or similar locations and cause the Administrative Agent to be listed as
a
co-loss payee on property and casualty policies and as an additional insured
on
liability policies.
(b) With
respect to any Mortgaged Properties, if at any time the area in which the
Premises (as defined in the Mortgages) are located is designated a “flood hazard
area” in any Flood Insurance Rate Map published by the Federal Emergency
Management Agency
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(c) In
connection with the covenants set forth in this Section 5.02, it is understood
and agreed that:
(i) none
of
the Administrative Agent, the Lenders, the Issuing Bank and their respective
agents or employees shall be liable for any loss or damage insured by the
insurance policies required to be maintained under this Section 5.02, it being
understood that (A) the Loan Parties shall look solely to their insurance
companies or any other parties other than the aforesaid parties for the recovery
of such loss or damage and (B) such insurance companies shall have no rights
of
subrogation against the Administrative Agent, the Lenders, any Issuing Bank
or
their agents or employees. If, however, the insurance policies, as a matter
of
the internal policy of such insurer, do not provide waiver of subrogation rights
against such parties, as required above, then each of Holdings and the Borrower,
on behalf of itself and behalf of each of its subsidiaries, hereby agrees,
to
the extent permitted by law, to waive, and further agrees to cause each of
their
Subsidiaries to waive, its right of recovery, if any, against the Administrative
Agent, the Lenders, any Issuing Bank and their agents and employees;
and
(ii) the
designation of any form, type or amount of insurance coverage by the
Administrative Agent under this Section 5.02 shall in no event be deemed a
representation, warranty or advice by the Administrative Agent or the Lenders
that such insurance is adequate for the purposes of the business of Holdings,
the Borrower and the Subsidiaries or the protection of their
properties.
SECTION
5.03. Taxes.
Pay and
discharge promptly when due all material Taxes imposed upon it or upon its
income or profits or in respect of its property, before the same shall become
delinquent or in default, as well as all lawful claims which, if unpaid, might
give rise to a Lien upon such properties or any part thereof; provided,
however,
that
such payment and discharge shall not be required with respect to any such Tax
or
claim so long as the validity or amount thereof shall be contested in good
faith
by appropriate proceedings, and Holdings, the Borrower or the affected
Subsidiary, as applicable, shall have set aside on its books reserves in
accordance with GAAP with respect thereto.
SECTION
5.04. Financial
Statements, Reports, etc. Furnish
to the Administrative Agent (which will promptly furnish such information to
the
Lenders):
(a) Within
90
days (or, if applicable, such shorter period as the SEC shall specify for the
filing of annual reports on Form 10-K), after the end of each fiscal year
(commencing with the fiscal year ending December 30, 2006), a consolidated
balance sheet and related statements of operations, cash flows and owners’
equity showing the financial position of the Borrower and its Subsidiaries
as of
the close of such fiscal year and the consolidated results of its operations
during such year and, starting with the
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fiscal
year ending December 30, 2006, setting forth in comparative form the
corresponding figures for the prior fiscal year, which consolidated balance
sheet and related statements of operations, cash flows and owners’ equity shall
be audited by independent public accountants of recognized national standing
and
accompanied by an opinion of such accountants (which opinion shall not be
qualified as to scope of audit or as to the status of the Borrower or any
Material Subsidiary as a going concern) to the effect that such consolidated
financial statements fairly present, in all material respects, the financial
position and results of operations of the Borrower and its Subsidiaries on
a
consolidated basis in accordance with GAAP (it being understood that the
delivery by the Borrower of annual reports on Form 10-K of the Borrower and
its
consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a)
to the extent such annual reports include the information specified
herein);
(b) within
45
days (or, if applicable, such shorter period as the SEC shall specify for the
filing of quarterly reports on Form 10-Q) after the end of each of the first
three fiscal quarters of each fiscal year (or, in the case of the first fiscal
quarter for which quarterly financial statements are required to be delivered
hereunder, within 75 days following the end of such fiscal quarter), for
each of the first three fiscal quarters of each fiscal year, (i) a consolidated
balance sheet and related statements of operations and cash flows showing the
financial position of the Borrower and its Subsidiaries as of the close of
such
fiscal quarter and the consolidated results of its operations during such fiscal
quarter and the then-elapsed portion of the fiscal year and setting forth in
comparative form the corresponding figures for the corresponding periods of
the
prior fiscal year, and (ii) management’s discussion and analysis of significant
operational and financial developments during such quarterly period, all of
which shall be in reasonable detail and which consolidated balance sheet and
related statements of operations and cash flows shall be certified by a
Financial Officer of the Borrower on behalf of the Borrower as fairly
presenting, in all material respects, the financial position and results of
operations of the Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP (subject to normal year-end audit adjustments and the
absence of footnotes) (it being understood that the delivery by the Borrower
of
quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries
shall satisfy the requirements of this Section 5.04(b) to the extent such
quarterly reports include the information specified herein);
(c) (x)
concurrently with any delivery of financial statements under paragraphs (a)
or
(b) above, a certificate of a Financial Officer of the Borrower (i) certifying
that no Event of Default or Default has occurred or, if such an Event of Default
or Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto, and (ii)
commencing with the fiscal quarter ending September 30, 2006 (or December 30,
2006 in order to effect any change in the Pricing Grid), setting forth
computations in reasonable detail satisfactory to the Administrative Agent
demonstrating compliance with the Financial Performance Covenant, (iii) setting
forth the calculation and uses of the Cumulative Credit for the fiscal period
then ended if the Borrower shall have used the Cumulative Credit for any purpose
during such fiscal period, (iv) certifying a list of names of all Immaterial
Subsidiaries, that each Subsidiary set forth on such list individually qualifies
as an Immaterial Subsidiary and that all
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such
Subsidiaries in the aggregate (together with all Unrestricted Subsidiaries)
do
not exceed the limitation set forth in clause (b) of the definition of the
term
Immaterial Subsidiary, and (v) certifying a list of names of all Unrestricted
Subsidiaries, that each Subsidiary set forth on such list individually qualifies
as an Unrestricted Subsidiary, and (z) concurrently with any delivery of
financial statements under paragraph (a) above, if the accounting firm is not
restricted from providing such a certificate by its policies of its national
office, a certificate of the accounting firm opining on or certifying such
statements stating whether they obtained knowledge during the course of their
examination of such statements of any Default or Event of Default (which
certificate may be limited to accounting matters and disclaim responsibility
for
legal interpretations);
(d) promptly
after the same become publicly available, copies of all periodic and other
publicly available reports, proxy statements and, to the extent requested by
the
Administrative Agent, other materials filed by Holdings, the Borrower or any
of
the Subsidiaries with the SEC, or after an initial public offering, distributed
to its stockholders generally, as applicable; provided, however, that such
reports, proxy statements, filings and other materials required to be delivered
pursuant to this clause (d) shall be deemed delivered for purposes of this
Agreement when posted to the website of the Borrower;
(e) within
90
days after the beginning of each fiscal year, a reasonably detailed consolidated
annual budget for such fiscal year (including a projected consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of the following fiscal
year, and the related consolidated statements of projected cash flow and
projected income), including a description of underlying assumptions with
respect thereto (collectively, the “Budget”),
which
Budget shall in each case be accompanied by the statement of a Financial Officer
of the Borrower to the effect that the Budget is based on assumptions believed
by such Financial Officer to be reasonable as of the date of delivery
thereof;
(f) upon
the
reasonable request of the Administrative Agent, an updated Perfection
Certificate (or, to the extent such request relates to specified information
contained in the Perfection Certificate, such information) reflecting all
changes since the date of the information most recently received pursuant to
this paragraph (f) or Section 5.10(f);
(g) promptly,
from time to time, such other information regarding the operations, business
affairs and financial condition of Holdings, the Borrower or any of the
Subsidiaries, or compliance with the terms of any Loan Document, or such
consolidating financial statements as in each case the Administrative Agent
may
reasonably request (for itself or on behalf of any Lender);
(h) in
the
event that (i) in respect of the Second Lien Notes or the Senior Subordinated
Notes, and any Refinancing Indebtedness with respect thereto, the rules and
regulations of the SEC permit the Borrower, Holdings or any Parent Entity to
report at Holdings’ or such Parent Entity’s level on a consolidated basis and
(ii) Holdings or such Parent Entity, as the case may be, is not
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engaged
in any business or activity, and does not own any assets or have other
liabilities, other than those incidental to its ownership directly or indirectly
of the capital stock of the Borrower and the incurrence of Indebtedness for
borrowed money (and, without limitation on the foregoing, does not have any
subsidiaries other than the Borrower and the Borrower’s Subsidiaries and any
direct or indirect parent companies of the Borrower that are not engaged in
any
other business or activity and do not hold any other assets or have any
liabilities except as indicated above) such consolidated reporting at such
Parent Entity’s level in a manner consistent with that described in paragraphs
(a) and (b) of this Section 5.04 for the Borrower (together
with a reconciliation showing the adjustments necessary to determine compliance
by the Borrower and its Subsidiaries with the Financial Performance
Covenant) will
satisfy the requirements of such paragraphs;
(i) promptly
upon request by the Administrative Agent, copies of: (i) each Schedule B
(Actuarial Information) to the most recent annual report (Form 5500 Series)
filed with the Internal Revenue Service with respect to a Plan; (ii) the most
recent actuarial valuation report for any Plan; (iii) all notices received
from
a Multiemployer Plan sponsor, a plan administrator or any governmental agency,
or provided to any Multiemployer Plan by Holdings, the Borrower, a Subsidiary
or
any ERISA Affiliate, concerning an ERISA Event; and (iv) such other documents
or
governmental reports or filings relating to any Plan or Multiemployer Plan
as
the Administrative Agent shall reasonably request; and
(j) promptly
upon Holdings, Borrower or Subsidiaries becoming aware of any fact or condition
which would reasonably be expected to result in an ERISA Event, Borrower shall
deliver to Administrative Agent a summary of such facts and circumstances and
any action it or Holdings or Subsidiaries intend to take regarding such facts
or
conditions.
SECTION
5.05. Litigation
and Other Notices .
Furnish
to the Administrative Agent (which will promptly thereafter furnish to the
Lenders) written notice of the following promptly after any Responsible Officer
of Holdings or the Borrower obtains actual knowledge thereof:
(a) any
Event
of Default or Default, specifying the nature and extent thereof and the
corrective action (if any) proposed to be taken with respect
thereto;
(b) the
filing or commencement of, or any written threat or notice of intention of
any
person to file or commence, any action, suit or proceeding, whether at law
or in
equity or by or before any Governmental Authority or in arbitration, against
Holdings, the Borrower or any of the Subsidiaries as to which an adverse
determination is reasonably probable and which, if adversely determined, would
reasonably be expected to have a Material Adverse Effect;
(c) any
other
development specific to Holdings, the Borrower or any of the Subsidiaries that
is not a matter of general public knowledge and that has had, or would
reasonably be expected to have, a Material Adverse Effect; and
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(d) the
development of any ERISA Event that, together with all other ERISA Events that
have developed or occurred, would reasonably be expected to have a Material
Adverse Effect.
SECTION
5.06. Compliance
with Laws.
Comply
with all laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to do so,
individually or in the aggregate, would not reasonably be expected to result
in
a Material Adverse Effect; provided,
that
this Section 5.06 shall not apply to Environmental Laws, which are the
subject of Section 5.09, or to laws related to Taxes, which are the subject
of Section 5.03.
SECTION
5.07. Maintaining
Records; Access to Properties and Inspections.
Maintain all financial records in accordance with GAAP and permit any persons
designated by the Administrative Agent or, upon the occurrence and during the
continuance of an Event of Default, any Lender to visit and inspect the
financial records and the properties of Holdings, the Borrower or any of the
Subsidiaries at reasonable times, upon reasonable prior notice to Holdings
or
the Borrower, and as often as reasonably requested and to make extracts from
and
copies of such financial records, and permit any persons designated by the
Administrative Agent or, upon the occurrence and during the continuance of
an
Event of Default, any Lender upon reasonable prior notice to Holdings or the
Borrower to discuss the affairs, finances and condition of Holdings, the
Borrower or any of the Subsidiaries with the officers thereof and independent
accountants therefor (subject to reasonable requirements of confidentiality,
including requirements imposed by law or by contract).
SECTION
5.08. Use
of
Proceeds.
Use the
proceeds of the Revolving Facility Loans and the Swingline Loans and request
issuance of Letters of Credit solely for general corporate purposes; and use
the
proceeds of the Term B Loans and up to $30.0 million of the Revolving Facility
Loans to consummate the Acquisition and the other Transactions.
SECTION
5.09. Compliance
with Environmental Laws.
Comply,
and make reasonable efforts to cause all lessees and other persons occupying
its
properties to comply, with all Environmental Laws applicable to its operations
and properties; and obtain and renew all material authorizations and permits
required pursuant to Environmental Law for its operations and properties, in
each case in accordance with Environmental Laws, except, in each case with
respect to this Section 5.09, to the extent the failure to do so would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
SECTION
5.10. Further
Assurances; Additional Security.
xxix) Execute
any and all further documents, financing statements, agreements and instruments,
and take all such further actions (including the filing and recording of
financing statements, fixture filings, Mortgages and other documents and
recordings of Liens in stock registries), that may be required under any
applicable law, or that the Administrative Agent may reasonably request, to
satisfy the Collateral and Guarantee Requirement and to cause the Collateral
and
Guarantee Requirement to be and remain satisfied, all at the expense of the
Loan
Parties and provide to the Administrative Agent, from time to time upon
reasonable request, evidence reasonably satisfactory to the Administrative
Agent
as to the perfection and priority of the Liens created or intended to be created
by the Security Documents.
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(b) If
any
asset (including any Real Property (other than Real Property covered by
paragraph (c) below) or improvements thereto or any interest therein) that
has an individual fair market value in an amount greater than $3.0 million
is
acquired by the Borrower or any other Loan Party after the Closing Date or
owned
by an entity at the time it becomes a Subsidiary Loan Party (in each case other
than (x) assets constituting Collateral under a Security Document that
become subject to the Lien of such Security Document upon acquisition thereof
and (y) assets that are not required to become subject to Liens in favor of
the
Administrative Agent pursuant to Section 5.10(g) or the Security Documents)
will
(i) notify the Administrative Agent thereof, (ii) if such asset is comprised
of
Real Property, deliver to Administrative Agent an updated Schedule 1.01(b)
reflecting the addition of such asset, and (iii) cause such asset to be
subjected to a Lien securing the Obligations and take, and cause the Subsidiary
Loan Parties to take, such actions as shall be necessary or reasonably requested
by the Administrative Agent to grant and perfect such Liens, including actions
described in paragraph (a) of this Section, all at the expense of the Loan
Parties, subject to paragraph (g) below.
(c) Promptly
notify the Administrative Agent of the acquisition of and grant and cause each
of the Subsidiary Loan Parties to grant to the Administrative Agent security
interests and mortgages in such Real Property of the Borrower or any such
Subsidiary Loan Parties as are not covered by the original Mortgages, to the
extent acquired after the Closing Date and having a value at the time of
acquisition in excess of $3.0 million pursuant to documentation substantially
in
the form of the Mortgages delivered to the Administrative Agent on the Closing
Date or in such other form as is reasonably satisfactory to the Administrative
Agent (each, an “Additional
Mortgage”)
and
constituting valid and enforceable Liens subject to no other Liens except
Permitted Liens, at the time of perfection thereof, record or file, and cause
each such Subsidiary to record or file, the Additional Mortgage or instruments
related thereto in such manner and in such places as is required by law to
establish, perfect, preserve and protect the Liens in favor of the
Administrative Agent required to be granted pursuant to the Additional Mortgages
and pay, and cause each such Subsidiary to pay, in full, all Taxes, fees and
other charges payable in connection therewith, in each case subject to
paragraph (g) below. Unless otherwise waived by the Administrative Agent,
with respect to each such Additional Mortgage, the Borrower shall deliver to
the
Administrative Agent contemporaneously therewith a title insurance policy,
and a
survey.
(d) If
any
additional direct or indirect Subsidiary of the Borrower (following a Qualified
IPO) is formed or acquired after the Closing Date (with any Subsidiary
Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary
being deemed to constitute the acquisition of a Subsidiary) and if such
Subsidiary is a Subsidiary Loan Party, within five Business Days after the
date
such Subsidiary is formed or acquired, notify the Administrative Agent and
the
Lenders thereof and, within 20 Business Days after the date such Subsidiary
is
formed or acquired or such longer period as the Administrative Agent shall
agree, cause the Collateral and Guarantee Requirement to be satisfied with
respect to such Subsidiary and with respect to any Equity Interest in or
Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject
to paragraph (g) below.
(e) If
any
additional Foreign Subsidiary of the Borrower is formed or acquired after the
Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted
Subsidiary becoming a Subsidiary being deemed to constitute the acquisition
of a
Subsidiary) and
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(f) (i)
Furnish to the Administrative Agent prompt written notice of any change (A)
in
any Loan Party’s corporate or organization name, (B) in any Loan Party’s
identity or organizational structure or (C) in any Loan Party’s organizational
identification number; provided,
that
the Borrower shall not effect or permit any such change unless all filings
have
been made, or will have been made within any statutory period, under the Uniform
Commercial Code or otherwise that are required in order for the Administrative
Agent to continue at all times following such change to have a valid, legal
and
perfected security interest in all the Collateral for the benefit of the Secured
Parties and (ii) promptly notify the Administrative Agent if any material
portion of the Collateral is damaged or destroyed.
(g) The
Collateral and Guarantee Requirement and the other provisions of this
Section 5.10 need not be satisfied with respect to (i) any Real Property
held by the Borrower or any of its Subsidiaries as a lessee under a lease,
(ii)
any vehicle, (iii) cash, deposit accounts and securities accounts, (iv) any
Equity Interests acquired after the Closing Date (other than Equity Interests
in
the Borrower or, in the case of any person which is a Subsidiary, Equity
Interests in such person issued or acquired after such person became a
Subsidiary) in accordance with this Agreement if, and to the extent that, and
for so long as (A) such Equity Interests constitute less than 100% of all
applicable Equity Interests of such person and the person holding the remainder
of such Equity Interests are not Affiliates, (B) doing so would violate
applicable law or a contractual obligation binding on such Equity Interests
and
(C) with respect to contractual obligations, such obligation existed at the
time
of the acquisition thereof and was not created or made binding on such Equity
Interests in contemplation of or in connection with the acquisition of such
Subsidiary, (v) any assets acquired after the Closing Date, to the extent that,
and for so long as, taking such actions would violate an enforceable contractual
obligation binding on such assets that existed at the time of the acquisition
thereof and was not created or made binding on such assets in contemplation
or
in connection with the acquisition of such assets (except in the case of assets
acquired with Indebtedness permitted pursuant to Section 6.01(i) that is
secured by a Permitted Lien) or (vi) those assets as to which the Administrative
Agent shall reasonably determine that the costs of obtaining or perfecting
such
a security interest are excessive in relation to the value of the security
to be
afforded thereby; provided,
that,
upon the reasonable request of the Administrative Agent, the Borrower shall,
and
shall cause any applicable Subsidiary to, use commercially reasonable efforts
to
have waived or eliminated any contractual obligation of the types described
in
clauses (iv) and (v) above.
SECTION
5.11. Rating.
Exercise commercially reasonable efforts to maintain corporate ratings from
each
of Xxxxx’x and S&P for the Term B Loans.
SECTION
5.12. Compliance
with Material Contracts.
Perform
and observe all of the terms and conditions of each material agreement to be
performed or observed by it, maintain each such material agreement in full
force
and effect, enforce each such material
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Negative
Covenants
The
Borrower covenants and agrees with each Lender that, so long as this Agreement
shall remain in effect (other than in respect of contingent indemnification
obligations) and until the Commitments have been terminated and the Obligations
(including principal of and interest on each Loan, all Fees and all other
expenses or amounts payable under any Loan Document) have been paid in full
and
all Letters of Credit and Bankers’ Acceptances have been canceled or have
expired and all amounts drawn or paid thereunder have been reimbursed in full,
unless the Required Lenders shall otherwise consent in writing, the Borrower
will not, and will not permit any of the Material Subsidiaries to:
SECTION
6.01. Indebtedness.
Incur,
create, assume or permit to exist any Indebtedness, except:
(a) Indebtedness
existing on the Closing Date and set forth on Schedule 6.01 and any Permitted
Refinancing Indebtedness incurred to Refinance such Indebtedness (other than
intercompany indebtedness Refinanced with Indebtedness owed to a person not
affiliated with the Borrower or any Subsidiary);
(b) Indebtedness
created hereunder and under the other Loan Documents and any Permitted
Refinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness
of the Borrower or any Subsidiary pursuant to Swap Agreements;
(d) Indebtedness
of the Borrower and the Subsidiaries owed to (including obligations in respect
of letters of credit or bank guarantees or similar instruments for the benefit
of) any person providing workers’ compensation, health, disability or other
employee benefits or property, casualty or liability insurance to the Borrower
or any Subsidiary, pursuant to reimbursement or indemnification obligations
to
such person, in each case in the ordinary course of business; provided,
that
upon the incurrence of Indebtedness with respect to reimbursement obligations
regarding workers’ compensation claims, such obligations are reimbursed not
later than 30 days following such incurrence;
(e) Indebtedness
of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings,
the Borrower or any other Subsidiary; provided,
that
(i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing
to
the Loan Parties shall be subject to Section 6.04(b) and (ii) Indebtedness
of the Borrower to Holdings or any Subsidiary and Indebtedness of any other
Loan
Party to Holdings or any Subsidiary that is not a Subsidiary Loan Party (the
“Subordinated
Intercompany Debt”)
shall
be subordinated to the Obligations on terms reasonably satisfactory to the
Administrative Agent;
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(f) Indebtedness
of the Borrower and the Subsidiaries in respect of performance bonds, bid bonds,
appeal bonds, surety bonds and completion guarantees and similar obligations,
in
each case provided in the ordinary course of business, including those incurred
to secure health, safety and environmental obligations in the ordinary course
of
business;
(g) Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument drawn against insufficient funds in the ordinary
course of business or other cash management services in the ordinary course
of
business; provided,
that
(x) such Indebtedness (other than credit or purchase cards) is extinguished
within ten Business Days of notification to the Borrower of its incurrence
and
(y) such Indebtedness in respect of credit or purchase cards is extinguished
within 60 days from its incurrence;
(h) (i)
Indebtedness of a Subsidiary acquired after the Closing Date or an entity merged
into or consolidated with the Borrower or any Subsidiary after the Closing
Date
and Indebtedness assumed in connection with the acquisition of assets, which
Indebtedness in each case exists at the time of such acquisition, merger or
consolidation and is not created in contemplation of such event and where such
acquisition, merger or consolidation is permitted by this Agreement and (ii)
any
Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
provided,
(A) no
Default or Event of Default shall have occurred and be continuing or would
result therefrom, and (B) immediately after giving effect to such acquisition,
merger or consolidation, the assumption and incurrence of any Indebtedness
and
any related transactions, the Borrower shall be in Pro Forma
Compliance;
(i) Capital
Lease Obligations, mortgage financings and purchase money Indebtedness incurred
by the Borrower or any Subsidiary prior to or within 270 days after the
acquisition, lease or improvement of the respective asset permitted under this
Agreement in order to finance such acquisition or improvement, and any Permitted
Refinancing Indebtedness in respect thereof, in an aggregate principal amount
that at the time of, and after giving effect to, the incurrence thereof,
together with the Remaining Present Value of outstanding leases permitted under
Section 6.03, would not exceed the greater of $85.0 million and 4.0% of
Consolidated Total Assets as of the end of the fiscal quarter immediately prior
to the date of such incurrence for which financial statements have been
delivered pursuant to Section 5.04;
(j) Capital
Lease Obligations incurred by the Borrower or any Subsidiary in respect of
any
Sale and Lease-Back Transaction that is permitted under Section 6.03 and
any Permitted Refinancing Indebtedness in respect thereof;
(k) other
Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount
that at the time of, and after giving effect to, the incurrence thereof, would
not exceed the greater of $85.0 million and 4.0% of Consolidated Total Assets
as
of the end of the fiscal quarter immediately prior to the date of such
incurrence for which financial statements have been delivered pursuant to
Section 5.04;
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(l) Indebtedness
of the Borrower pursuant to (i) the Second Lien Notes and senior unsecured
bridge term loans, in an aggregate principal amount that is not in excess of
$750.0 million, (ii) the Senior Subordinated Notes and senior subordinated
bridge term loans in an aggregate principal amount that is not in excess of
$425.0 million, and (iii) any Permitted Refinancing Indebtedness incurred
to Refinance any such Indebtedness;
(m) Guarantees
(i) by the Subsidiary Loan Parties of the Indebtedness of the Borrower described
in paragraph (1) of this Section 6.01, so long as the Guarantee of the Senior
Subordinated Notes or any Permitted Refinancing Indebtedness in respect thereof
is subordinated substantially on terms as set forth in the Senior Subordinated
Notes Indenture with respect to the Senior Subordinated Notes, and so long
as
any Liens securing the Guarantee of the Second Lien Notes or any Permitted
Refinancing Indebtedness in respect thereof are subject to the Intercreditor
Agreement, (ii) by the Borrower or any Subsidiary Loan Party of any Indebtedness
of the Borrower or any Subsidiary Loan Party expressly permitted to be incurred
under this Agreement, (iii) by the Borrower or any Subsidiary Loan Party of
Indebtedness otherwise permitted hereunder of Holdings or any Subsidiary that
is
not a Subsidiary Loan Party to the extent such Guarantees are permitted by
Section 6.04 (other than Section 6.04(v)), (iv) by any Foreign Subsidiary of
Indebtedness of another Foreign Subsidiary, and (v) by the Borrower of
Indebtedness of Foreign Subsidiaries incurred for working capital purposes
in
the ordinary course of business on ordinary business terms so long as such
Indebtedness is permitted to be incurred under Section 6.01 (s) to the
extent such Guarantees are permitted by 6.04 (other than Section 6.04(v));
provided,
that
Guarantees by the Borrower or any Subsidiary Loan Party under this
Section 6.01(m) of any other Indebtedness of a person that is subordinated
to other Indebtedness of such person shall be expressly subordinated to the
Obligations to at least the same extent as the Guarantee of the Senior
Subordinated Notes is under the Senior Subordinated Notes
Indenture;
(n) Indebtedness
arising from agreements of the Borrower or any Subsidiary providing for
indemnification, adjustment of purchase or acquisition price or similar
obligations, in each case, incurred or assumed in connection with the
Transactions and any Permitted Business Acquisition or the disposition of any
business, assets or a Subsidiary not prohibited by this Agreement, other than
Guarantees of Indebtedness incurred by any person acquiring all or any portion
of such business, assets or a Subsidiary for the purpose of financing such
acquisition;
(o) Indebtedness
in respect of letters of credit, bank guarantees, warehouse receipts or similar
instruments issued to support performance obligations and trade letters of
credit (other than obligations in respect of other Indebtedness) in the ordinary
course of business;
(p) Indebtedness
of the Borrower and the Subsidiaries supported by a Letter of Credit, in a
principal amount not in excess of the stated amount of such Letter of
Credit;
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(q) Indebtedness
consisting of (i) the financing of insurance premiums or (ii) take-or-pay
obligations contained in supply arrangements, in each case, in the ordinary
course of business;
(r)
(i)
Other Indebtedness incurred by the Borrower or any Subsidiary Loan Party;
provided that (A) at the time of the incurrence of such Indebtedness and after
giving effect thereto, no Default or Event of Default shall have occurred and
be
continuing or would result therefrom, (B) the Borrower and its Subsidiaries
shall be in Pro Forma Compliance after giving effect to the issuance incurrence
or assumption of such Indebtedness and (C) in the case of any such Indebtedness
that is secured, immediately after giving effect to the issuance, incurrence
or
assumption of such Indebtedness, the Total Net First Lien Leverage Ratio on
a
Pro Forma Basis shall not be greater than 3.75:1.00 and (ii) Permitted
Refinancing Indebtedness in respect thereof;
(s) Indebtedness
of Foreign Subsidiaries; provided
that the
aggregate amount of Indebtedness incurred under this clause (s), when aggregated
with all other Indebtedness incurred and outstanding pursuant to this clause
(s), shall not exceed the greater of $60.0 million and 10.0% of the consolidated
assets of the Foreign Subsidiaries at the time of such incurrence;
(t) unsecured
Indebtedness in respect of obligations of the Borrower or any Subsidiary to
pay
the deferred purchase price of goods or services or progress payments in
connection with such goods and services; provided,
that
such obligations are incurred in connection with open accounts extended by
suppliers on customary trade terms (which require that all such payments be
made
within 60 days after the incurrence of the related obligations) in the ordinary
course of business and not in connection with the borrowing of money or any
Swap
Agreements;
(u) Indebtedness
representing deferred compensation to employees of the Borrower or any
Subsidiary incurred in the ordinary course of business;
(v) Indebtedness
in connection with Permitted Receivables Financings; provided that the proceeds
thereof are applied in accordance with Section 2.11(b);
(w) Indebtedness
of the Borrower and the Subsidiaries incurred under lines of credit or overdraft
facilities (including, but not limited to, intraday, ACH and purchasing
card/T&E services) extended by one or more financial institutions reasonably
acceptable to the Administrative Agent or one or more of the Lenders and (in
each case) established for the Borrower’s and the Subsidiaries’ ordinary course
of operations (such Indebtedness, the “Overdraft
Line”),
which
Indebtedness may be secured as, but only to the extent, provided in Section
6.02(b) and in the Security Documents (it being understood, however, that for
a
period of 30 consecutive days during each fiscal year of the Borrower the
principal amount of Indebtedness under the Overdraft Line shall not exceed
$10.0
million);
(x) Indebtedness
incurred on behalf of, or representing Guarantees of Indebtedness of, joint
ventures not in excess, at any
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one
time outstanding, of the greater of $20.0 million or 5.0% of Consolidated Total
Assets as of the end of the fiscal quarter immediately prior to the date of
such
incurrence for which financial statements have been delivered pursuant to
Section 5.04;
(y) all
premium (if any), interest (including post-petition interest), fees, expenses,
charges and additional or contingent interest on obligations described in
paragraphs (a) through (x) above;
(z) Indebtedness
consisting of promissory notes issued by the Borrower or any Subsidiary to
current or former officers, directors and employees, their respective estates,
spouses or former spouses to finance the purchase or redemption of Equity
Interests of Holdings or any Parent Entity permitted by Section 6.06;
and
(aa) Indebtedness
consisting of obligations of the Borrower or any Subsidiary under deferred
compensation or other similar arrangements incurred by such Person in connection
with the Transactions and Permitted Business Acquisitions or any other
Investment expressly permitted hereunder.
SECTION
6.02. Liens.
Create,
incur, assume or permit to exist any Lien on any property or assets (including
stock or other securities of any person, including the Borrower and any
Subsidiary) at the time owned by it or on any income or revenues or rights
in
respect of any thereof, except the following (collectively, “Permitted
Liens”):
(a) Liens
on
property or assets of the Borrower and the Subsidiaries existing on the Closing
Date and set forth on Schedule 6.02(a) or, to the extent not listed in such
Schedule, where such property or assets have a fair market value that does
not
exceed $10.0 million in the aggregate, and any modifications, replacements,
renewals or extensions thereof; provided, that such Liens shall secure only
those obligations that they secure on the Closing Date (and any Permitted
Refinancing Indebtedness in respect of such obligations permitted by Section
6.01(a)) and shall not subsequently apply to any other property or assets of
the
Borrower or any Subsidiary other than (A) after-acquired property that is
affixed or incorporated into the property covered by such Lien, and (B) proceeds
and products thereof;
(b) any
Lien
created under the Loan Documents (including, without limitation, Liens created
under the Security Documents securing obligations in respect of Swap Agreements
owed to a person that is a Lender or an Affiliate of a Lender at the time of
entry into such Swap Agreements) or permitted in respect of any Mortgaged
Property by the terms of the applicable Mortgage; provided,
however,
in no
event shall the holders of the Indebtedness under the Overdraft Line have the
right to receive proceeds in respect of a claim in excess of $10.0 million
in
the aggregate (plus (i) any accrued and unpaid interest in respect of
Indebtedness incurred by the Borrower and the Subsidiaries under the Overdraft
Line and (ii) any accrued and unpaid fees and expenses owing by the
Borrower and the Subsidiaries under the Overdraft Line) from the enforcement
of
any remedies available to the Secured Parties under all of the Loan
Documents;
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(c) any
Lien
on any property or asset of the Borrower or any Subsidiary securing Indebtedness
or Permitted Refinancing Indebtedness permitted by Section 6.01(h);
provided,
that
such Lien (i) does not apply to any other property or assets of the Borrower
or
any of the Subsidiaries not securing such Indebtedness at the date of the
acquisition of such property or asset (other than after acquired property
subjected to a Lien securing Indebtedness and other obligations incurred prior
to such date and which Indebtedness and other obligations are permitted
hereunder that require a pledge of after acquired property, it being understood
that such requirement shall not be permitted to apply to any property to which
such requirement would not have applied but for such acquisition), (ii) such
Lien is not created in contemplation of or in connection with such acquisition
and (iii) in the case of a Lien securing Permitted Refinancing Indebtedness,
any
such Lien is permitted, subject to compliance with clause (e) of the
definition of the term “Permitted Refinancing Indebtedness”;
(d) Liens
for
Taxes, assessments or other governmental charges or levies not yet delinquent
or
that are being contested in compliance with Section 5.03;
(e) Liens
imposed by law, such as landlord’s, carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s, construction or other like Liens arising in the
ordinary course of business and securing obligations that are not overdue by
more than 30 days or that are being contested in good faith by appropriate
proceedings and in respect of which, if applicable, the Borrower or any
Subsidiary shall have set aside on its books reserves in accordance with
GAAP;
(f) (i)
pledges and deposits and other Liens made in the ordinary course of business
in
compliance with the Federal Employers Liability Act or any other workers’
compensation, unemployment insurance and other social security laws or
regulations and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements in respect of such obligations and
(ii)
pledges and deposits and other Liens securing liability for reimbursement or
indemnification obligations of (including obligations in respect of letters
of
credit or bank guarantees for the benefit of) insurance carriers providing
property, casualty or liability insurance to the Borrower or any
Subsidiary;
(g) deposits
to secure the performance of bids, trade contracts (other than for
Indebtedness), leases (other than Capital Lease Obligations), statutory
obligations, surety and appeal bonds, performance and return of money bonds,
bids, leases, government contracts, trade contracts, agreements with utilities,
and other obligations of a like nature (including letters of credit in lieu
of
any such bonds or to support the issuance thereof) incurred in the ordinary
course of business, including those incurred to secure health, safety and
environmental obligations in the ordinary course of business;
(h) zoning
restrictions, survey exceptions and such matters as an accurate survey would
disclose, easements, trackage rights, leases (other than Capital Lease
Obligations), licenses, special assessments, rights-of-way, covenants,
conditions, restrictions and declaration on or with respect to the use of Real
Property, servicing agreements, development agreements, site plan
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agreements
and other similar encumbrances incurred in the ordinary course of business
and
title defects or irregularities that are of a minor nature and that, in the
aggregate, do not interfere in any material respect with the ordinary conduct
of
the business of the Borrower or any Subsidiary;
(i) Liens
securing Indebtedness permitted by Section 6.01(i) (limited to the assets
subject to such Indebtedness);
(j) Liens
arising out of capitalized lease transactions permitted under Section 6.03,
so long as such Liens attach only to the property sold and being leased in
such
transaction and any accessions thereto or proceeds thereof and related
property;
(k) Liens
securing judgments that do not constitute an Event of Default under Section
7.01(j); provided that such Liens, to the extent that they secure aggregate
amounts of more than $50.0 million, shall be discharged within 60 days of the
creation thereof;
(l) Liens
disclosed by the title insurance policies delivered on or subsequent to the
Closing Date and pursuant to Section 5.10 and any replacement, extension or
renewal of any such Lien; provided,
that
such replacement, extension or renewal Lien shall not cover any property other
than the property that was subject to such Lien prior to such replacement,
extension or renewal; provided,
further,
that
the Indebtedness and other obligations secured by such replacement, extension
or
renewal Lien are permitted by this Agreement;
(m) any
interest or title of a lessor or sublessor under any leases or subleases entered
into by the Borrower or any Subsidiary in the ordinary course of
business;
(n) Liens
that are contractual rights of set-off (i) relating to the establishment of
depository relations with banks not given in connection with the issuance of
Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Borrower
or any Subsidiary to permit satisfaction of overdraft or similar obligations
incurred in the ordinary course of business of the Borrower or any Subsidiary
or
(iii) relating to purchase orders and other agreements entered into with
customers of the Borrower or any Subsidiary in the ordinary course of
business;
(o) Liens
arising solely by virtue of any statutory or common law provision relating
to
banker’s liens, rights of set-off or similar rights;
(p) Liens
securing obligations in respect of trade-related letters of credit or bank
guarantees permitted under Section 6.01(f), (k) or (o) and covering the
goods (or the documents of title in respect of such goods) financed by such
letters of credit or bank guarantees and the proceeds and products
thereof;
(q) leases
or
subleases, licenses or sublicenses (including with respect to intellectual
property and software) granted to others in the ordinary course of business
not
interfering in any material respect with the business of the Borrower and its
Subsidiaries, taken as a whole;
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(r) Liens
in
favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of
goods;
(s) Liens
solely on any xxxx xxxxxxx money deposits made by the Borrower or any of the
Subsidiaries in connection with any letter of intent or purchase agreement
in
respect of any Investment permitted hereunder;
(t) Liens
with respect to property or assets of any Foreign Subsidiary securing
Indebtedness of a Foreign Subsidiary permitted under
Section 6.01;
(u) other
Liens with respect to property or assets of the Borrower or any Subsidiary;
provided
that (i)
after giving effect to any such Lien and the incurrence of Indebtedness, if
any,
secured by such Lien is created, incurred, acquired or assumed (or any prior
Indebtedness becomes so secured) on a Pro Forma Basis, the Total Net First
Lien
Leverage Ratio on the last day of the Borrower’s then most recently completed
fiscal quarter for which financial statements are available shall be less than
or equal to 3.75 to 1.00, (ii) at the time of the incurrence of such Lien and
after giving effect thereto, no Default or Event of Default shall have occurred
and be continuing or would result therefrom, (iii) the Indebtedness or other
obligations secured by such Lien are otherwise permitted by this Agreement,
and
(iv) to the extent such Liens are pari passu or subordinated to the Liens
granted hereunder, an intercreditor agreement reasonably satisfactory to the
Administrative Agent shall be entered into providing that such new liens will
be
secured equally and ratably with the Liens granted hereunder, or, as applicable,
subordinated to the Liens granted hereunder, in each case, on customary
terms;
(v) the
prior
rights of consignees and their lenders under consignment arrangements entered
into in the ordinary course of business;
(w) Liens
arising from precautionary Uniform Commercial Code financing statements or
consignments entered into in connection with any transaction otherwise permitted
under this Agreement;
(x) Liens
on
Equity Interests in joint ventures securing obligations of such joint venture;
(y) Liens
on
securities that are the subject of repurchase agreements constituting Permitted
Investments under clause (c) of the definition thereof;
(z) Liens
in
respect of Permitted Receivables Financings that extend only to the receivables
subject thereto;
(aa) Liens
on
goods or inventory the purchase, shipment or storage price of which is financed
by a documentary letter of credit, bank guarantee or bankers’ acceptance issued
or created for the account of the Borrower or any Subsidiary in the ordinary
course of business; provided,
that
such Lien secures only the obligations of the Borrower or such Subsidiaries
in
respect of such letter of credit or bank guarantee to the extent permitted
under
Section 6.01;
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(bb) Liens
securing insurance premiums financing arrangements, provided,
that
such Liens are limited to the applicable unearned insurance premiums;
(cc) Liens
in
favor of the Borrower or any Subsidiary Loan Party; provided
that if
any such Lien shall cover any Collateral, the holder of such Lien shall execute
and deliver to the Administrative Agent a subordination agreement in form and
substance reasonably satisfactory to the Administrative Agent;
(dd) Liens
securing obligations under the Second Lien Note Documents and any Permitted
Refinancing Indebtedness in respect thereof, to the extent such Liens are
subject to the Intercreditor Agreement;
(ee) Liens
on
not more than $20.0 million of deposits securing Swap Agreements;
and
(ff) other
Liens with respect to property or assets of the Borrower or any Subsidiary
securing obligations in an aggregate principal amount outstanding at any time
not to exceed $15.0 million.
SECTION
6.03. Sale
and Lease-Back Transactions.
Enter
into any arrangement, directly or indirectly, with any person whereby it shall
sell or transfer any property, real or personal, used or useful in its business,
whether now owned or hereafter acquired, and thereafter rent or lease such
property or other property that it intends to use for substantially the same
purpose or purposes as the property being sold or transferred (a “Sale
and Lease-Back Transaction”);
provided,
that a
Sale and Lease-Back Transaction shall be permitted (a) with respect to property
(i) owned by the Borrower or any Domestic Subsidiary that is acquired after
the
Closing Date so long as such Sale and Lease-Back Transaction is consummated
within 180 days of the acquisition of such property or (ii) by any Foreign
Subsidiary regardless of when such property was acquired, and (b) with respect
to any property owned by the Borrower or any Domestic Subsidiary, (i) if at
the
time the lease in connection therewith is entered into, and after giving effect
to the entering into of such lease, the Remaining Present Value of such lease,
together with Indebtedness outstanding pursuant to Section 6.01(i) and the
Remaining Present Value of outstanding leases previously entered into under
this
Section 6.03(b), would not exceed the greater of $85.0 million and 4.0% of
Consolidated Total Assets as of the end of the fiscal quarter immediately prior
to the date the lease was entered into for which financial statements have
been
delivered pursuant to Section 5.04 and (ii) if such Sale and Lease-Back
Transaction is of property owned by the Borrower or any Domestic Subsidiary
as
of the Closing Date, the Net Proceeds therefrom are used to prepay the Term
Loans to the extent required by Section 2.11(b).
SECTION
6.04. Investments,
Loans and Advances.
Purchase, hold or acquire (including pursuant to any merger with a person that
is not a Wholly Owned Subsidiary immediately prior to such merger) any Equity
Interests, evidences of Indebtedness or other securities of, make or permit
to
exist any loans or advances to or Guarantees of the obligations of, or make
or
permit to exist any investment or any other interest in (each, an “Investment”),
any
other person, except:
(a) the
Transactions;
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(b) (i)
Investments by the Borrower or any Subsidiary in the Equity Interests of the
Borrower or any Subsidiary; (ii) intercompany loans from the Borrower or any
Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the
Borrower or any Subsidiary Loan Party of Indebtedness otherwise expressly
permitted hereunder of the Borrower or any Subsidiary; provided,
that
the sum of (A) Investments (valued at the time of the making thereof and without
giving effect to any write-downs or write-offs thereof) made after the Closing
Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are
not Subsidiary Loan Parties, plus
(B) net
intercompany loans made after the Closing Date to Subsidiaries that are not
Subsidiary Loan Parties pursuant to clause (ii), plus
(C)
Guarantees of Indebtedness after the Closing Date of Subsidiaries that are
not
Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an
aggregate net amount equal to (x) the greater of (1) $100.0 million and
(2) 4.50% of Consolidated Total Assets as of the end of the fiscal quarter
immediately prior to the date of such Investment for which financial statements
have been delivered pursuant to Section 5.04 (plus
any
return of capital actually received by the respective investors in respect
of
Investments theretofore made by them pursuant to this paragraph (b));
plus
(y) the portion, if any, of the Cumulative Credit on the date of such
election that the Borrower elects to apply to this Section 6.04(b)(y), such
election to be specified in a written notice of a Responsible Officer of the
Borrower calculating in reasonable detail the amount of Cumulative Credit
immediately prior to such election and the amount thereof elected to be so
applied; provided,
further,
that
intercompany current liabilities incurred in the ordinary course of business
in
connection with the cash management operations of the Borrower and the
Subsidiaries shall not be included in calculating the limitation in this
paragraph at any time.
(c) Permitted
Investments and Investments that were Permitted Investments when
made;
(d) Investments
arising out of the receipt by the Borrower or any Subsidiary of noncash
consideration for the sale of assets permitted under
Section 6.05;
(e) loans
and
advances to officers, directors, employees or consultants of the Borrower or
any
Subsidiary (i) in the ordinary course of business not to exceed the greater
of
$15.0 million and 2.0% of Consolidated Total Assets as of the end of the fiscal
quarter immediately prior to the date of such loan or advance for which
financial statements have been delivered pursuant to Section 5.04, in the
aggregate at any time outstanding (calculated without regard to write downs
or
write offs thereof), (ii) in respect of payroll payments and expenses in the
ordinary course of business and (iii) in connection with such person’s purchase
of Equity Interests of Holdings (or any direct or indirect parent of Holdings)
solely to the extent that the amount of such loans and advances shall be
contributed to the Borrower in cash as common equity;
(f) accounts
receivable, security deposits and prepayments arising and trade credit granted
in the ordinary course of business and any assets or securities received in
satisfaction or partial satisfaction thereof from financially troubled account
debtors to the extent reasonably necessary in order to prevent or limit loss
and
any prepayments and other credits to suppliers made in the ordinary course
of
business;
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(g) Swap
Agreements;
(h) Investments
existing on, or contractually committed as of, the Closing Date and set forth
on
Schedule 6.04
and any
extensions, renewals or reinvestments thereof, so long as the aggregate amount
of all Investments pursuant to this clause (h) is not increased at any time
above the amount of such Investment existing on the Closing Date;
(i) Investments
resulting from pledges and deposits under Sections 6.02(f), (g), (k), (r),
(s), and (u);
(j) other
Investments by the Borrower or any Subsidiary in an aggregate amount (valued
at
the time of the making thereof, and without giving effect to any write-downs
or
write-offs thereof) not to exceed (i) the greater of $100.0 million and 4.50%
of
Consolidated Total Assets as of the end of the fiscal quarter immediately prior
to the date of such incurrence for which financial statements have been
delivered pursuant to Section 5.04 (plus
any
returns of capital actually received by the respective investor in respect
of
investments theretofore made by it pursuant to this paragraph (j))
plus
(ii) the
portion, if any, of the Cumulative Credit on the date of such election that
the
Borrower elects to apply to this Section 6.04(j)(ii), such election to be
specified in a written notice of a Responsible Officer of the Borrower
calculating in reasonable detail the amount of Cumulative Credit immediately
prior to such election and the amount thereof elected to be so
applied;
(k) Investments
constituting Permitted Business Acquisitions;
(l) intercompany
loans between Foreign Subsidiaries and Guarantees by Foreign Subsidiaries
permitted by Section 6.01(m);
(m) Investments
received in connection with the bankruptcy or reorganization of, or settlement
of delinquent accounts and disputes with or judgments against, customers and
suppliers, in each case in the ordinary course of business or Investments
acquired by the Borrower as a result of a foreclosure by the Borrower or any
of
the Subsidiaries with respect to any secured Investments or other transfer
of
title with respect to any secured Investment in default;
(n) Investments
of a Subsidiary acquired after the Closing Date or of an entity merged into
the
Borrower or merged into or consolidated with a Subsidiary after the Closing
Date, in each case, to the extent permitted under this Section 6.04 and, in
the
case of any merger or consolidation, in accordance with Section 6.05 to the
extent that such Investments were not made in contemplation of or in connection
with such acquisition, merger or consolidation and were in existence on the
date
of such acquisition, merger or consolidation;
(o) acquisitions
by the Borrower of obligations of one or more officers or other employees of
Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection
with
such officer’s or employee’s acquisition of Equity Interests of Holdings or
any
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Parent
Entity, so long as no cash is actually advanced by the Borrower or any of the
Subsidiaries to such officers or employees in connection with the acquisition
of
any such obligations;
(p) Guarantees
by the Borrower or any Subsidiary of operating leases (other than Capital Lease
Obligations) or of other obligations that do not constitute Indebtedness, in
each case entered into by the Borrower or any Subsidiary in the ordinary course
of business;
(q) Investments
to the extent that payment for such Investments is made with Equity Interests
of
Holdings (or any direct or indirect parent of Holdings);
(r) Investments
in the equity interests of one or more newly formed persons that are received
in
consideration of the contribution by Holdings, the Borrower or the applicable
Subsidiary Loan Party of assets (including Equity Interests and cash) to such
person or persons; provided,
that
(i) the fair market value of such assets, determined on an arms’-length basis,
so contributed pursuant to this paragraph (r) shall not in the aggregate exceed
$20.0 million and (ii) in respect of each such contribution, a Responsible
Officer of the Borrower shall certify, in a form to be agreed upon by the
Borrower and the Administrative Agent (x) after giving effect to such
contribution, no Default or Event of Default shall have occurred and be
continuing, (y) the fair market value of the assets so contributed and (z)
that
the requirements of paragraph (i) of this proviso remain satisfied;
(s) Investments
consisting of the redemption, purchase, repurchase or retirement of any Equity
Interests permitted under Section 6.06;
(t) Investments
in the ordinary course of business consisting of Uniform Commercial Code Article
3 endorsements for collection or deposit and Uniform Commercial Code Article
4
customary trade arrangements with customers consistent with past practices;
(u) Investments
in Foreign Subsidiaries not to exceed the greater of $20.0 million and 2.0%
of
Consolidated Total Assets as of the end of the fiscal quarter immediately prior
to the date of such Investment for which financial statements have been
delivered pursuant to Section 5.04, in the aggregate, as valued at the fair
market value of such Investment at the time such Investment is
made;
(v) Guarantees
permitted under Section 6.01 (except to the extent such Guarantee is expressly
subject to Section 6.04);
(w) advances
in the form of a prepayment of expenses, so long as such expenses are being
paid
in accordance with customary trade terms of the Borrower or such
Subsidiary;
(x) Investments
by Borrower and its Subsidiaries, including loans to any direct or indirect
parent of the Borrower, if the Borrower or any other Subsidiary would otherwise
be permitted to make a dividend or distribution in such amount (provided
that
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the
amount of any such investment shall also be deemed to be a distribution under
the appropriate clause of Section 6.06 for all purposes of this Agreement);
(y) Investments
arising as a result of Permitted Receivables Financings;
(z) Investments
received substantially contemporaneously in exchange for Equity Interests of
any
Parent Entity; provided
that
such Investments are not included in any determination of the Cumulative Credit;
(aa) Investments
in joint ventures not in excess of the greater of $20.0 million and 2.0% of
Consolidated Total Assets as of the end of the fiscal quarter immediately prior
to the date of such Investment for which financial statements have been
delivered pursuant to Section 5.04, in the aggregate; and
(bb) Investments
in a joint venture between Borrower and Covalence Plastics.
The
amount of Investments that may be made at any time pursuant to Section 6.04(b)
or 6.04(j) (such Sections, the “Related
Sections”)
may,
at the election of the Borrower, be increased by the amount of Investments
that
could be made at such time under the other Related Section; provided
that the
amount of each such increase in respect of one Related Section shall be treated
as having been used under the other Related Section.
SECTION
6.05. Mergers,
Consolidations, Sales of Assets and Acquisitions.
Merge
into or consolidate with any other person, or permit any other person to merge
into or consolidate with it, or sell, transfer, lease or otherwise dispose
of
(in one transaction or in a series of transactions) all or any part of its
assets (whether now owned or hereafter acquired), or issue, sell, transfer
or
otherwise dispose of any Equity Interests of the Borrower or any Subsidiary,
or
purchase, lease or otherwise acquire (in one transaction or a series of
transactions) all or any substantial part of the assets of any other person
or
any division, unit or business of any person, except that this
Section shall not prohibit:
(a) (i)
the
purchase and sale of inventory in the ordinary course of business by the
Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an
operating lease) of any other asset in the ordinary course of business by the
Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out
equipment or other property in the ordinary course of business by the Borrower
or any Subsidiary or (iv) the sale of Permitted Investments in the ordinary
course of business;
(b) if
at the
time thereof and immediately after giving effect thereto no Event of Default
shall have occurred and be continuing or would result therefrom, (i) the merger
of any Subsidiary into the Borrower in a transaction in which the Borrower
is
the survivor, (ii) the merger or consolidation of any Subsidiary into or with
any Subsidiary Loan Party in a transaction in which the surviving or resulting
entity is a Subsidiary Loan Party and, in the case of each of clauses (i)
and (ii), no person other than the Borrower or Subsidiary Loan Party receives
any consideration, (iii) the merger or consolidation of any Subsidiary that
is
not a Subsidiary Loan Party into or with any other Subsidiary that is not a
Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form
of
entity of any Subsidiary (other than the Borrower) if the Borrower determines
in
good faith that such liquidation,
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dissolution
or change in form is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders or (v) any Subsidiary may merge with any other
person in order to effect an Investment permitted pursuant to Section 6.04
so
long as the continuing or surviving person shall be a Subsidiary, which shall
be
a Loan Party if the merging Subsidiary was a Loan Party and which together
with
each of its Subsidiaries shall have complied with the requirements of
Section 5.10;
(c) sales,
transfers, leases or other dispositions to the Borrower or a Subsidiary (upon
voluntary liquidation or otherwise); provided,
that
any sales, transfers, leases or other dispositions by a Loan Party to a
Subsidiary that is not a Subsidiary Loan Party in reliance on this
paragraph (c) shall be made in compliance with Section 6.07 and the
aggregate gross proceeds of any such sales, transfers, leases or other
dispositions plus the aggregate gross proceeds of any or all assets sold,
transferred or leases in reliance on clause (g) below, shall not exceed, in
any
fiscal year of the Borrower, the greater of (x) $110.0 million and (y) 5.0%
of
Consolidated Total Assets as of the end of the fiscal quarter immediately prior
to the date of such sale, transfer, lease or other disposition for which
financial statements have been delivered pursuant to Section 5.04;
(d) Sale
and
Lease-Back Transactions permitted by Section 6.03;
(e) Investments
permitted by Section 6.04, Permitted Liens, Dividends permitted by Section
6.06;
(f) the
sale
of defaulted receivables in the ordinary course of business and not as part
of
an accounts receivables financing transaction;
(g) sales,
transfers, leases or other dispositions of assets not otherwise permitted by
this Section 6.05 (or required to be included in this clause (g) pursuant
to Section 6.05(c)); provided,
that
(i) the aggregate gross proceeds (including noncash proceeds) of any or all
assets sold, transferred, leased or otherwise disposed of in reliance upon
this
paragraph (g) shall not exceed, in any fiscal year of the Borrower, the
greater of (x) $110.0 million and (y) 5.0% of Consolidated Total
Assets as of the end of the fiscal quarter immediately prior to the date of
such
incurrence for which financial statements have been delivered pursuant to
Section 5.04, (ii) no Default or Event of Default exists or would result
therefrom (iii) with respect to any such sale, transfer, lease or other
disposition with aggregate gross proceeds (including noncash proceeds) in excess
of $10.0, immediately after giving effect thereto, the Borrower shall be in
Pro
Forma Compliance, and (iv) the Net Proceeds thereof are applied in accordance
with Section 2.11(b);
(h) Permitted
Business Acquisitions (including any merger or consolidation in order to effect
a Permitted Business Acquisition); provided,
that
following any such merger or consolidation (i) involving the Borrower, the
Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary,
the
surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly
Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or
resulting entity shall be a Wholly Owned Subsidiary;
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(i) leases,
licenses (on a non-exclusive basis with respect to intellectual property),
or
subleases or sublicenses (on a non-exclusive basis with respect to intellectual
property) of any real or personal property in the ordinary course of
business;
(j) sales,
leases or other dispositions of inventory of the Borrower and its Subsidiaries
determined by the management of the Borrower to be no longer useful or necessary
in the operation of the business of the Borrower or any of the Subsidiaries;
provided, that the Net Proceeds thereof are applied in accordance with Section
2.11(b);
(k) acquisitions
and purchases made with the proceeds of any Asset Sale pursuant to the first
proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) the
purchase and sale or other transfer (including by capital contribution) of
Receivables Assets pursuant to Permitted Receivables Financings; provided that
the Net Proceeds thereof are applied in accordance with Section 2.11(b);
and
(m) any
exchange of assets for services and/or other assets of comparable or greater
value; provided,
that
(i) at least 90% of the consideration received by the transferor consists of
assets that will be used in a business or business activity permitted hereunder,
(ii) in the event of a swap with a fair market value in excess of $10.0 million,
the Administrative Agent shall have received a certificate from a Responsible
Officer of the Borrower with respect to such fair market value and (iii) in
the
event of a swap with a fair market value in excess of $20.0 million, such
exchange shall have been approved by at least a majority of the Board of
Directors of Holdings or the Borrower; provided,
that
the Net Proceeds, if any, thereof are applied in accordance with
Section 2.11(b); provided, further, that (A) the aggregate gross
consideration (including exchange assets, other noncash consideration and cash
proceeds) of any or all assets exchanged in reliance upon this paragraph (m)
shall not exceed, in any fiscal year of the Borrower, the greater of $110.0
million and 5.0% of Consolidated Total Assets as of the end of the fiscal
quarter immediately prior to the date of such incurrence for which financial
statements have been delivered pursuant to Section 5.04, (B) no Default or
Event
of Default exists or would result therefrom, and (C) with respect to any such
exchange with aggregate gross consideration in excess of $10.0 million,
immediately after giving effect thereto, the Borrower shall be in Pro Forma
Compliance.
Notwithstanding
anything to the contrary contained in Section 6.05 above, (i) no sale,
transfer or other disposition of assets shall be permitted by this
Section 6.05 (other than sales, transfers, leases, licenses or other
dispositions to Loan Parties pursuant to paragraph (c) of this Section
6.05) unless such disposition is for fair market value, (ii) no sale, transfer
or other disposition of assets shall be permitted by paragraph (a) or (d) of
this Section 6.05 unless such disposition is for at least 75% cash consideration
and (iii) no sale, transfer or other disposition of assets in excess of $15.0
million shall be permitted by paragraph (g) of this Section 6.05
unless such disposition is for at least 75% cash consideration; provided,
the
provisions of clause (ii) shall not apply to any individual transaction or
series of related transactions involving assets with a fair market value of
less
than $10.0 million or to other transactions involving assets with a fair market
value of not more than the greater of $45.0 million and 10% of Consolidated
Total Assets as of the end of the fiscal quarter immediately prior to the date
of
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such
sale, transfer or disposition for which financial statements have been delivered
pursuant to Section 5.04, in the aggregate for all such transactions during
the
term of this Agreement; provided further,
that
for purposes of clause (iii), (a) the amount of any liabilities (as shown
on the Borrower’s or any Subsidiary’s most recent balance sheet or in the notes
thereto) of the Borrower or any Subsidiary of the Borrower (other than
liabilities that are by their terms subordinated to the Obligations) that are
assumed by the transferee of any such assets, (b) any notes or other obligations
or other securities or assets received by the Borrower or such Subsidiary of
the
Borrower from such transferee that are converted by the Borrower or such
Subsidiary of the Borrower into cash within 180 days of the receipt thereof
(to
the extent of the cash received) and (c) any Designated Non-Cash Consideration
received by the Borrower or any of its Subsidiaries in such Asset Sale having
an
aggregate fair market value, taken together with all other Designated Non-Cash
Consideration received pursuant to this clause (c) that is at that time
outstanding, not to exceed $35.0 million at the time of the receipt of such
Designated Non-Cash Consideration (with the fair market value of each item
of
Designated Non-Cash Consideration being measured at the time received and
without giving effect to subsequent changes in value) shall be deemed to be
cash. To the extent any Collateral is disposed of in a transaction expressly
permitted by this Section 6.05 to any Person other than Holdings, the Borrower
or any Subsidiary, such Collateral shall be sold free and clear of the Liens
created by the Loan Documents, and the Administrative Agent shall take, and
shall be authorized by each Lender to take, any actions reasonably requested
by
the Borrower in order to evidence the foregoing.
SECTION
6.06. Dividends
and Distributions.
Declare
or pay any dividend or make any other distribution (by reduction of capital
or
otherwise), whether in cash, property, securities or a combination thereof,
with
respect to any of its Equity Interests (other than dividends and distributions
on Equity Interests payable solely by the issuance of additional Equity
Interests (other than Disqualified Stock) of the person paying such dividends
or
distributions) or directly or indirectly redeem, purchase, retire or otherwise
acquire for value (or permit any Subsidiary to purchase or acquire) any of
its
Equity Interests or set aside any amount for any such purpose (other than
through the issuance of additional Equity Interests (other than Disqualified
Stock) of the person redeeming, purchasing, retiring or acquiring such shares);
provided,
however,
that:
(a) any
Subsidiary of the Borrower may declare and pay dividends to, repurchase its
Equity Interests from or make other distributions to the Borrower or to any
Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned
Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect
parent of such Subsidiary and to each other owner of Equity Interests of such
Subsidiary on a pro rata
basis
(or more favorable basis from the perspective of the Borrower or such
Subsidiary) based on their relative ownership interests so long as any
repurchase of its Equity Interests from a person that is not the Borrower or
a
Subsidiary is permitted under Section 6.04);
(b) the
Borrower may declare and pay dividends or make other distributions to Holdings
in respect of (i) overhead, legal, accounting and other professional fees and
expenses of Holdings or any Parent Entity, (ii) fees and expenses related to
any
public offering or private placement of debt or equity securities of Holdings
or
any Parent Entity whether or not consummated, (iii)
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franchise
taxes and other fees, taxes and expenses in connection with the maintenance
of
its existence and its (or any Parent Entity’s indirect) ownership of the
Borrower, (iv) payments permitted by Section 6.07(b), (v) the tax liability
to
each relevant jurisdiction in respect of consolidated, combined, unitary or
affiliated returns for the relevant jurisdiction of Holdings (or any Parent
Entity) attributable to the Borrower or its Subsidiaries and (vi) customary
salary, bonus and other benefits payable to, and indemnities provided on behalf
of, officers and employees of Holdings or any Parent Entity, in each case in
order to permit Holdings or any Parent Entity to make such payments;
provided,
that in
the case of clauses (i), (ii) and (iii), the amount of such dividends and
distributions shall not exceed the portion of any amounts referred to in such
clauses (i), (ii) and (iii) that are allocable to the Borrower and its
Subsidiaries (which shall be 100% for so long as Holdings or such Parent Entity,
as the case may be, owns no assets other than the Equity Interests in the
Borrower, Holdings or another Parent Entity);
(c) the
Borrower may declare and pay dividends or make other distributions to Holdings
the proceeds of which are used to purchase or redeem the Equity Interests of
Holdings or any Parent Entity (including related stock appreciation rights
or
similar securities) held by then present or former directors, consultants,
officers or employees of Holdings, the Borrower or any of the Subsidiaries
or by
any Plan or shareholders’ agreement then in effect upon such person’s death,
disability, retirement or termination of employment or under the terms of any
such Plan or any other agreement under which such shares of stock or related
rights were issued; provided,
that
the aggregate amount of such purchases or redemptions under this
paragraph (c) shall not exceed in any fiscal year $15.0 million (plus the
amount of net proceeds contributed to the Borrower that were (x) received by
Holdings or any Parent Entity during such calendar year from sales of Equity
Interests of Holdings or any Parent Entity of Holdings to directors,
consultants, officers or employees of Holdings, any Parent Entity, the Borrower
or any Subsidiary in connection with permitted employee compensation and
incentive arrangements and (y) of any key-man life insurance policies received
during such calendar year), which, if not used in any year, may be carried
forward to any subsequent calendar year;
(d) noncash
repurchases of Equity Interests deemed to occur upon exercise of stock options
if such Equity Interests represent a portion of the exercise price of such
options;
(e) the
Borrower may pay dividends to Holdings in an aggregate amount equal to the
portion, if any, of the Cumulative Credit on such date that the Borrower elects
to apply to this Section 6.06(e), such election to be specified in a written
notice of a Responsible Officer of the Borrower calculating in reasonable detail
the amount of Cumulative Credit immediately prior to such election and the
amount thereof elected to be so applied; provided,
that no
Default or Event of Default has occurred and is continuing or would result
therefrom and, after giving effect thereto, that the Borrower and its
Subsidiaries shall be in Pro Forma Compliance;
(f) the
Borrower may pay dividends on the Closing Date to consummate the Transactions;
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(g) the
Borrower may pay dividends or distributions to allow Holdings or any Parent
Entity to make payments in cash, in lieu of the issuance of fractional shares,
upon the exercise of warrants or upon the conversion or exchange of Equity
Interests of any such person;
(h) after
a
Qualified IPO, the Borrower may pay dividends and make distributions to, or
repurchase or redeem shares from, its equity holders in an amount equal to
6.0%
per annum of the net proceeds received by the Borrower from any public offering
of Equity Interests of the Borrower or any direct or indirect parent of the
Borrower; and
(i) the
Borrower may make distributions to Holdings or any Parent Entity to finance
any
Investment permitted to be made pursuant to Section 6.04; provided
that (A)
such distribution shall be made substantially concurrently with the closing
of
such Investment and (B) such parent shall, immediately following the closing
thereof, cause (1) all property acquired (whether assets or Equity Interests)
to
be contributed to the Borrower or a Subsidiary or (2) the merger (to the extent
permitted in Section 6.05) of the Person formed or acquired into the Borrower
or
a Subsidiary in order to consummate such Permitted Business Acquisition or
Investment, in each case, in accordance with the requirements of Section
5.10.
SECTION
6.07. Transactions
with Affiliates.
xxx) Sell
or transfer any property or assets to, or purchase or acquire any property
or
assets from, or otherwise engage in any other transaction with, any of its
Affiliates or any known direct or indirect holder of 10% or more of any class
of
capital stock of Holdings or the Borrower in a transaction involving aggregate
consideration in excess of $5.0 million, unless such transaction is (i)
otherwise permitted (or required) under this Agreement or (ii) upon terms no
less favorable to the Borrower or such Subsidiary, as applicable, than would
be
obtained in a comparable arm’s-length transaction with a person that is not an
Affiliate.
(b) The
foregoing paragraph (a) shall not prohibit, to the extent otherwise
permitted under this Agreement,
(i) any
issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, equity
purchase agreements, stock options and stock ownership plans approved by the
Board of Directors of Holdings or of the Borrower,
(ii) loans
or
advances to employees or consultants of Holdings (or any direct or indirect
parent of Holdings), the Borrower or any of the Subsidiaries in accordance
with
Section 6.04(e),
(iii) transactions
among the Borrower or any Subsidiary or any entity that becomes a Loan Party
as
a result of such transaction (including via merger or consolidation in which
a
Subsidiary is the surviving entity) not prohibited by this
Agreement,
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(iv) the
payment of fees, reasonable out-of-pocket costs and indemnities to directors,
officers, consultants and employees of Holdings, any Parent Entity, the Borrower
and the Subsidiaries in the ordinary course of business (limited,
in the case of any Parent Entity, to the portion of such fees and expenses
that
are allocable to the Borrower and its Subsidiaries (which shall be 100% for
so
long as Holdings or such Parent Entity, as the case may be, owns no assets
other
than the Equity Interests in the Borrower, Holdings or another Parent Entity
and
assets incidental to the ownership of the Borrower and its
Subsidiaries)),
(v) subject
to the limitations set forth in Section 6.07(b)(xiv), if applicable,
transactions pursuant to the Transaction Documents and permitted agreements
in
existence on the Closing Date and set forth on Schedule 6.07
or any
amendment thereto to the extent such amendment is not adverse to the Lenders
in
any material respect and other transactions, agreements and arrangements
described on Schedule 6.07 and any amendment thereto or similar transactions,
agreements or arrangements entered into by the Borrower or any of its
Subsidiaries to the extent such amendment is not adverse to the Lenders in
any
material respect.
(vi) (A)
any
employment agreements entered into by the Borrower or any of the Subsidiaries
in
the ordinary course of business, (B) any subscription agreement or similar
agreement pertaining to the repurchase of Equity Interests pursuant to put/call
rights or similar rights with employees, officers or directors, and (C) any
employee compensation, benefit plan or arrangement, any health, disability
or
similar insurance plan which covers employees, and any reasonable employment
contract and transactions pursuant thereto,
(vii) dividends,
redemptions and repurchases permitted under Section 6.06, including
payments to Holdings (and any Parent Entity),
(viii) any
purchase by Holdings of the equity capital of the Borrower; provided,
that
any Equity Interests of the Borrower purchased by Holdings shall be pledged
to
the Administrative Agent on behalf of the Lenders pursuant to the Collateral
Agreement,
(ix) payments
by the Borrower or any of the Subsidiaries to the Funds or any Fund Affiliates
made for any financial advisory, financing, underwriting or placement services
or in respect of other investment banking activities, including in connection
with acquisitions or divestitures, which payments are approved by the majority
of the Board of Directors of the Borrower, or a majority of disinterested
members of the Board of Directors of the Borrower, in good faith,
(x) transactions
with Wholly Owned Subsidiaries for the purchase or sale of goods, products,
parts and services entered into in the ordinary course of business in a manner
consistent with past practice,
(xi) any
transaction in respect of which the Borrower delivers to the Administrative
Agent (for delivery to the Lenders) a letter addressed to the Board of Directors
of the Borrower from an accounting, appraisal or investment banking firm, in
each case of
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nationally
recognized standing that is (A) in the good faith determination of the Borrower
qualified to render such letter and (B) reasonably satisfactory to the
Administrative Agent, which letter states that such transaction is on terms
that
are no less favorable to the Borrower or such Subsidiary, as applicable, than
would be obtained in a comparable arm’s-length transaction with a person that is
not an Affiliate,
(xii) subject
to paragraph (xiv) below, the payment of all fees, expenses, bonuses and awards
related to the Transactions contemplated by the Second Lien Notes Offering
Memorandum, including fees to the Funds or any Fund Affiliates and as set forth
on Schedule 6.07,
(xiii) transactions
with joint ventures for the purchase or sale of goods, equipment and services
entered into in the ordinary course of business and in a manner consistent
with
past practice,
(xiv) any
agreement to pay, and the payment of, monitoring, management, transaction,
advisory or similar fees payable to the Funds or any Fund Affiliates (A) in
an
aggregate amount in any fiscal year not to exceed the sum of (1) the greater
of
$3.0 million and 2.00% of EBITDA for such fiscal year, plus reasonable out
of
pocket costs and expenses in connection therewith and unpaid amounts accrued
for
prior periods; plus (2) any deferred fees (to the extent such fees were within
such amount in clause (A) (1) above originally), plus (B) 2.00% of the value
of
transactions with respect to which the Fund or any Fund Affiliate provides
any
transaction, advisory or other services, plus (C) a transaction fee of not
more
than $20.0 million to be paid to the Fund or a Fund Affiliate in connection
with
the Transactions on the Closing Date, plus (D) so long as no Event of Default
has occurred and is continuing, in the event of a Qualified IPO, the present
value of all future amounts payable pursuant to any agreement referred to in
clause (A) (1) above in connection with the termination of such agreement with
the Fund and its Fund Affiliates (the “Fund
Termination Fee”);
provided,
that if
any such payment pursuant to clause (D) is not permitted to be paid as a result
of an Event of Default, such payment shall accrue and may be payable when no
Events of Default are continuing to the extent that no further Event of Default
would result therefrom,
(xv) the
issuance, sale, transfer of Equity Interests of Borrower to Holdings and capital
contributions by Holdings to Borrower,
(xvi) without
duplication of any amounts otherwise paid with respect to taxes, payments by
Holdings (and any Parent Entity), the Borrower and the Subsidiaries pursuant
to
tax sharing agreements among Holdings (and any such parent Entity), the Borrower
and the Subsidiaries on customary terms that require each party to make payments
when such taxes are due or refunds received of amounts equal to the income
tax
liabilities and refunds generated by each such party calculated on a separate
return basis and payments to the party generating tax benefits and credits
of
amounts equal to the value of such tax benefits and credits made available
to
the group by such party, or
(xvii) transactions
pursuant to any Permitted Receivables Financing.
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SECTION
6.08. Business
of the Borrower and the Subsidiaries.
Notwithstanding any other provisions hereof, engage at any time in any business
or business activity other than any business or business activity conducted
by
any of them on the Closing Date and any business or business activities
incidental or related thereto, or any business or activity that is reasonably
similar or complementary thereto or a reasonable extension, development or
expansion thereof or ancillary thereto, and in the case of a Special Purpose
Receivables Subsidiary, Permitted Receivables Financings.
SECTION
6.09. Limitation
on Modifications of Indebtedness; Modifications of Certificate of Incorporation,
By-Laws and Certain Other Agreements; etc. xxxi) Amend
or modify in any manner materially adverse to the Lenders, or grant any waiver
or release under or terminate in any manner (if such granting or termination
shall be materially adverse to the Lenders), the articles or certificate of
incorporation, by-laws, limited liability company operating agreement,
partnership agreement or other organizational documents of the Borrower or any
of the Subsidiaries or the Acquisition Agreement.
(b) (a) Make,
or agree or offer to pay or make, directly or indirectly, any payment or other
distribution (whether in cash, securities or other property) of or in respect
of
principal of or interest on the loans under the Second Lien Notes, Senior
Subordinated Notes or any Permitted Refinancing Indebtedness in respect of
any
of the foregoing or any preferred Equity Interests or any Disqualified Stock
(“Junior
Financing”),
or
any payment or other distribution (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination
in
respect of any Junior Financing except for (A) Refinancings permitted by
Section 6.01(l) or (r)1 ,
(B)
payments of regularly scheduled interest, and, to the extent this Agreement
is
then in effect, principal on the scheduled maturity date of any Junior
Financing, (C) payments or distributions in respect of all or any portion of
the
Junior Financing with the proceeds contributed to the Borrower by Holdings
from
the issuance, sale or exchange by Holdings (or any direct or indirect parent
of
Holdings) of Equity Interests made within eighteen months prior thereto, (D)
the
conversion of any Junior Financing to Equity Interests of Holdings or any of
its
direct or indirect parents; and (E) so long as no Default or Event of Default
has occurred and is continuing or would result therefrom and after giving effect
to such payment or distribution the Borrower would be in Pro Forma Compliance,
payments or distributions in respect of Junior Financings prior to their
scheduled maturity made, in an aggregate amount, not to exceed the sum of (x)
$50.0 million and (y) the Cumulative Credit; or
(b) Amend
or
modify, or permit the amendment or modification of, any provision of Junior
Financing, any Permitted Receivables Document, or any agreement, document or
instrument evidencing or relating thereto, other than amendments or
modifications that (A) are not in any manner materially adverse to Lenders
and that do not affect the subordination or payment provisions thereof (if
any)
in a manner adverse to the Lenders and (B) otherwise comply with the
definition of “Permitted Refinancing Indebtedness”.
|
1
|
Will
need to be modified if the Bridge is funded on the Closing
Date.
|
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(c) Permit
any Material Subsidiary to enter into any agreement or instrument that by its
terms restricts (i) the payment of dividends or distributions or the making
of
cash advances to the Borrower or any Subsidiary that is a direct or indirect
parent of such Subsidiary or (ii) the granting of Liens by the Borrower or
such
Material Subsidiary pursuant to the Security Documents, in each case other
than
those arising under any Loan Document, except, in each case, restrictions
existing by reason of:
1. restrictions
imposed by applicable law;
2. contractual
encumbrances or restrictions in effect on the Closing Date under Indebtedness
existing on the Closing Date and set forth on Schedule 6.01,
the
Second Lien Notes, the Senior Subordinated Notes or any agreements related
to
any Permitted Refinancing Indebtedness in respect of any such Indebtedness
that
does not expand the scope of any such encumbrance or restriction;
3. any
restriction on a Subsidiary imposed pursuant to an agreement entered into for
the sale or disposition of the Equity Interests or assets of a Subsidiary
pending the closing of such sale or disposition;
4. customary
provisions in joint venture agreements and other similar agreements applicable
to joint ventures entered into in the ordinary course of business;
5. any
restrictions imposed by any agreement relating to secured Indebtedness permitted
by this Agreement to the extent that such restrictions apply only to the
property or assets securing such Indebtedness;
6. any
restrictions imposed by any agreement relating to Indebtedness incurred pursuant
to section 6.01(r), to the extent such restrictions are not more restrictive,
taken as a whole, than the restrictions contained in the Senior Subordinated
Note Documents and Second Lien Note Documents;
7. customary
provisions contained in leases or licenses of intellectual property and other
similar agreements entered into in the ordinary course of business;
8. customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest;
9. customary
provisions restricting assignment of any agreement entered into in the ordinary
course of business;
10. customary
restrictions and conditions contained in any agreement relating to the sale,
transfer, lease or other disposition of any asset permitted under Section 6.05
pending the consummation of such sale, transfer, lease or other disposition;
11. customary
restrictions and conditions contained in the document relating to any Lien,
so
long as (1) such Lien is a Permitted Lien and such restrictions or conditions
relate only to the specific asset subject to such Lien, and (2) such
restrictions and
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conditions
are not created for the purpose of avoiding the restrictions imposed by this
Section 6.09;
12. customary
net worth provisions contained in Real Property leases entered into by
Subsidiaries of the Borrower, so long as the Borrower has determined in good
faith that such net worth provisions would not reasonably be expected to impair
the ability of the Borrower and its Subsidiaries to meet their ongoing
obligations;
13. any
agreement in effect at the time such subsidiary becomes a Subsidiary, so long
as
such agreement was not entered into in contemplation of such person becoming
a
Subsidiary other than Subsidiaries of such new Subsidiary;
14. restrictions
in agreements representing Indebtedness permitted under Section 6.01 of a
Subsidiary of the Borrower that is not a Subsidiary Loan Party;
15. customary
restrictions on leases, subleases, licenses or Equity Interests or asset sale
agreements otherwise permitted hereby as long as such restrictions relate to
the
Equity Interests and assets subject thereto;
16. restrictions
on cash or other deposits imposed by customers under contracts entered into
in
the ordinary course of business;
17. restrictions
contained in any Permitted Receivables Document with respect to any Special
Purpose Receivables Subsidiary; or
18. any
encumbrances or restrictions of the type referred to in Sections 6.09(c)(i)
and
6.09(c)(ii) above imposed by any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings
of
the contracts, instruments or obligations referred to in clauses (A) through
(Q)
above; provided that such amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings are, in the
good faith judgment of the Company, no more restrictive with respect to such
dividend and other payment restrictions than those contained in the dividend
or
other payment restrictions prior to such amendment, modification, restatement,
renewal, increase, supplement, refunding, replacement or
refinancing.
SECTION
6.10. [Intentionally
Omitted]
SECTION
6.11. Total
Net First Lien Leverage Ratio(a) .
Commencing with the fiscal quarter ending September 30, 2006, permit the
Total Net First Lien Leverage Ratio as of the end of any fiscal quarter to
exceed 4.00 to 1.00.
SECTION
6.12. [Intentionally
Omitted]
SECTION
6.13. No
Other “Designated Senior Debt”.
Designate, or permit the designation of, any Indebtedness as “Designated Senior
Debt” or any other similar term for the purpose of the definition of the same or
the subordination provisions contained in the Senior Subordinated Notes
Indenture or any indenture governing other Indebtedness permitted to be incurred
hereunder that are senior
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SECTION
6.14. Fiscal
Year; Accounting.
In the
case of the Borrower, permit its fiscal year to end on any date other than
the
Saturday nearest the end of the calendar year without prior notice to the
Administrative Agent given concurrently with any
required notice to the SEC.
SECTION
6.15. Qualified
CFC Holding Companies.
Permit
any Qualified CFC Holding Company to (a) create, incur or assume any
Indebtedness or other liability, or create, incur, assume or suffer to exist
any
Lien on, or sell, transfer or otherwise dispose of, other than in a transaction
permitted under Section 6.05, any of the Equity Interests of a Foreign
Subsidiary held by such Qualified CFC Holding Company, or any other assets,
or
(b) engage in any business or activity or acquire or hold any assets other
than
the Equity Interests of one or more Foreign Subsidiaries of the Borrower and/or
one or more other Qualified CFC Holding Companies and the receipt and
distribution of dividends and distributions in respect thereof.
ARTICLE
VIA
Holdings
Covenants
Holdings
covenants and agrees with each Lender that, so long as this Agreement shall
remain in effect (other than in respect of contingent indemnification
obligations) and until the Commitments have been terminated and the Obligations
(including principal of and interest on each Loan, all Fees and all other
expenses or amounts payable under any Loan Document) have been paid in full
and
all Letters of Credit have been canceled or have expired and all amounts drawn
thereunder have been reimbursed in full, unless the Required Lenders shall
otherwise consent in writing, (a) Holdings will not create, incur, assume or
permit to exist any Lien (other
than Liens of a type described in Section 6.02(d), (e) or (k)) on
any of
the Equity Interests issued by the Borrower other than the Liens created under
the Loan Documents, (b) Holdings shall do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence; provided,
that so
long as no Default exists or would result therefrom, Holdings may merge with
any
other person, and (c) Holdings shall at all times own directly 100% of the
Equity Interests of the Borrower and shall not sell, transfer or otherwise
dispose of the Equity Interests in the Borrower.
ARTICLE
VII
Events
of Default
SECTION
7.01. Events
of Default.
In case
of the happening of any of the following events (each, an “Event
of Default”):
(a) any
representation or warranty made or deemed made by Holdings, the Borrower or
any
other Loan Party herein or in
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any
other Loan Document or any certificate or document delivered pursuant hereto
or
thereto shall prove to have been false or misleading in any material respect
when so made or deemed made;
(b) default
shall be made in the payment of any principal of any Loan when and as the same
shall become due and payable, whether at the due date thereof or at a date
fixed
for prepayment thereof or by acceleration thereof or otherwise;
(c) default
shall be made in the payment of any interest on any Loan or the reimbursement
with respect to any L/C Disbursement or in the payment of any Fee or any other
amount (other than an amount referred to in (b) above) due under any Loan
Document, when and as the same shall become due and payable, and such default
shall continue unremedied for a period of five Business Days;
(d) default
shall be made in the due observance or performance by Holdings, the Borrower
or
any of the Subsidiaries of any covenant, condition or agreement contained in
Section 2.05(c), 5.01(a), 5.05(a) or 5.08 or in Article VI or
VIA;
(e) default
shall be made in the due observance or performance by Holdings, the Borrower
or
any of the Subsidiaries of any covenant, condition or agreement contained in
any
Loan Document (other than those specified in paragraphs (b), (c) and (d)
above) and such default shall continue unremedied for a period of 30 days (or
60
days if such default results solely from a Foreign Subsidiary’s failure to duly
observe or perform any such covenant, condition or agreement) after notice
thereof from the Administrative Agent to the Borrower;
(f) (i)
any
event or condition occurs that (A) results in any Material Indebtedness becoming
due prior to its scheduled maturity or (B) enables or permits (with all
applicable grace periods having expired) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause any
Material Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity or (ii)
Holdings, the Borrower or any of the Subsidiaries shall fail to pay the
principal of any Material Indebtedness at the stated final maturity thereof;
provided that this clause (f) shall not apply to secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of the property or
assets securing such Indebtedness if such sale or transfer is permitted
hereunder and under the documents providing for such Indebtedness;
(g) there
shall have occurred a Change in Control;
(h) an
involuntary proceeding shall be commenced or an involuntary petition shall
be
filed in a court of competent jurisdiction seeking (i) relief in respect of
Holdings, the Borrower or any of the Subsidiaries, or of a substantial part
of
the property or assets of Holdings, the Borrower or any Subsidiary, under Title
11 of the United States Code, as now constituted or hereafter amended, or any
other federal, state or foreign bankruptcy, insolvency, receivership or similar
law, (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings, the Borrower or any of the
Subsidiaries or for a
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substantial
part of the property or assets of Holdings, the Borrower or any of the
Subsidiaries or (iii) the winding-up or liquidation of Holdings, the Borrower
or
any Subsidiary (except, in the case of any Subsidiary, in a transaction
permitted by Section 6.05); and such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of
the
foregoing shall be entered;
(i) Holdings,
the Borrower or any Subsidiary shall (i) voluntarily commence any proceeding
or
file any petition seeking relief under Title 11 of the United States Code,
as
now constituted or hereafter amended, or any other federal, state or foreign
bankruptcy, insolvency, receivership or similar law, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or the filing of any petition described in paragraph (h) above,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Holdings, the Borrower or
any
of the Subsidiaries or for a substantial part of the property or assets of
Holdings, the Borrower or any Subsidiary, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding,
(v)
make a general assignment for the benefit of creditors or (vi) become unable
or
admit in writing its inability or fail generally to pay its debts as they become
due;
(j) the
failure by Holdings, the Borrower or any Subsidiary to pay one or more final
judgments aggregating in excess of $20.0 million (to the extent not covered
by
insurance), which judgments are not discharged or effectively waived or stayed
for a period of 45 consecutive days, or any action shall be legally taken by
a
judgment creditor to levy upon assets or properties of Holdings, the Borrower
or
any Subsidiary to enforce any such judgment;
(k) (i)
a
trustee shall be appointed by a United States district court to administer
any
Plan, (ii) an ERISA Event or ERISA Events shall have occurred with respect
to
any Plan or Multiemployer Plan, (iii) the PBGC shall institute proceedings
(including giving notice of intent thereof) to terminate any Plan or Plans,
(iv)
Holdings, the Borrower or any Subsidiary or any ERISA Affiliate shall have
been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan
is
in reorganization or is being terminated, within the meaning of Title IV of
ERISA, (v) Holdings, the Borrower or any Subsidiary shall engage in any
“prohibited transaction” (as defined in Section 406 of ERISA or
Section 4975 of the Code) involving any Plan; and in each case in
clauses (i) through (v) above, such event or condition, together with all
other such events or conditions, if any, would reasonably be expected to have
a
Material Adverse Effect; or
(l) (i)
any
Loan Document shall for any reason be asserted in writing by Holdings, the
Borrower or any Subsidiary not to be a legal, valid and binding obligation
of
any party thereto, (ii) any security interest purported to be created by any
Security Document and to extend to assets that are not immaterial to Holdings,
the Borrower and the Subsidiaries on a consolidated basis shall cease to be,
or
shall be asserted in writing by the Borrower or any other Loan Party not to
be,
a valid and perfected security interest (perfected as or having the priority
required by this Agreement or the relevant Security Document and subject to
such
limitations and restrictions as are set forth herein and therein) in the
securities, assets or properties covered thereby, except to the
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extent
that any such loss of perfection or priority results from the limitations of
foreign laws, rules and regulations as they apply to pledges of Equity Interests
in Foreign Subsidiaries or the application thereof, or from the failure of
the
Administrative Agent to maintain possession of certificates actually delivered
to it representing securities pledged under the Collateral Agreement or to
file
Uniform Commercial Code continuation statements or take the actions described
on
Schedule 3.04
and
except to the extent that such loss is covered by a lender’s title insurance
policy and the Administrative Agent shall be reasonably satisfied with the
credit of such insurer, or (iii) the Guarantees pursuant to the Security
Documents by Holdings, the Borrower or the Subsidiary Loan Parties of any of
the
Obligations shall cease to be in full force and effect (other than in accordance
with the terms thereof), or shall be asserted in writing by Holdings or the
Borrower or any Subsidiary Loan Party not to be in effect or not to be legal,
valid and binding obligations; or
(m)
(i) the
Obligations shall fail to constitute “Senior Debt” (or the equivalent thereof)
and “Designated Senior Debt” (or the equivalent thereof) under the Senior
Subordinated Notes Indenture and under the documentation governing any other
Indebtedness permitted herein constituting subordinated Indebtedness or any
Permitted Refinancing Indebtedness in respect of the Senior Subordinated Notes
or such other Indebtedness permitted herein constituting subordinated
Indebtedness, or (ii) the subordination provisions thereunder shall be
invalidated or otherwise cease, or shall be asserted in writing by Holdings,
the
Borrower or any Subsidiary Loan Party to be invalid or to cease to be legal,
valid and binding obligations of the parties thereto, enforceable in accordance
with their terms;
then,
and
in every such event (other than an event with respect to the Borrower described
in paragraph (h) or (i) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the
Required Lenders, shall, by notice to the Borrower, take any or all of the
following actions, at the same or different times: (i) terminate forthwith
the
Commitments, (ii) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared
to
be due and payable, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of the Borrower accrued hereunder and
under any other Loan Document, shall become forthwith due and payable, without
presentment, demand, protest or any other notice of any kind, all of which
are
hereby expressly waived by the Borrower, anything contained herein or in any
other Loan Document to the contrary notwithstanding and (iii) if the Loans
have
been declared due and payable pursuant to clause (ii) above, demand cash
collateral pursuant to Section 2.05(j) and (iv) exercise all rights and
remedies granted to it under any Loan Document and all its rights under any
other applicable law or in equity; and in any event with respect to the Borrower
described in paragraph (h) or (i) above, the Commitments shall
automatically terminate, the principal of the Loans then outstanding, together
with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrower accrued hereunder and under any other Loan Document,
shall automatically become due and payable and the Administrative Agent shall
be
deemed to have made a demand for cash collateral to the full extent permitted
under Section 2.05(j), without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by the Borrower,
anything contained herein or in any other Loan Document to the contrary
notwithstanding.
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SECTION
7.02. Exclusion
of Immaterial Subsidiaries.
Solely
for the purposes of determining whether an Event of Default has occurred under
clause (h), (i) or (l) of Section 7.01, any reference in any such
clause to any Subsidiary shall be deemed not to include any Immaterial
Subsidiary affected by any event or circumstance referred to in any such
clause.
SECTION
7.03. Right
to Cure
SECTION
7.04. .
Holdings’
Right to Cure.
xxxii)
Notwithstanding anything to the contrary contained in Section 7.01, in the
event that the Borrower fails to comply with the requirements of the Financial
Performance Covenant, until the expiration of the 10th day subsequent to the
date the certificate calculating such Financial Performance Covenant is required
to be delivered pursuant to Section 5.04(c), Holdings shall have the right
to issue Permitted Cure Securities for cash or otherwise receive cash
contributions to the capital of Holdings, and, in each case, to contribute
any
such cash to the capital of the Borrower (collectively, the “Cure
Right”),
and
upon the receipt by the Borrower of such cash (the “Cure
Amount”)
pursuant to the exercise by Holdings of such Cure Right such Financial
Performance Covenant shall be recalculated giving effect to the following pro
forma adjustment:
(i) EBITDA
shall be increased with respect to such applicable quarter and any four-quarter
period that contains such quarter, solely for the purpose of measuring the
Financial Performance Covenant and not for any other purpose under this
Agreement, by an amount equal to the Cure Amount; and
(ii) If,
after
giving effect to the foregoing pro forma adjustment, the Borrower shall then
be
in compliance with the requirements of the Financial Performance Covenant,
the
Borrower shall be deemed to have satisfied the requirements of the Financial
Performance Covenant as of the relevant date of determination with the same
effect as though there had been no failure to comply therewith at such date,
and
the applicable breach or default of the Financial Performance Covenant that
had
occurred shall be deemed cured for this purposes of the Agreement.
(b) Notwithstanding
anything herein to the contrary, (i) in each four-fiscal-quarter period there
shall be at least one fiscal quarter in which the Cure Right is not exercised
and (ii) for purposes of this Section 7.03, the Cure Amount shall be no
greater than the amount required for purposes of complying with the Financial
Performance Covenant.
The
Agents
SECTION
8.01. Appointment.
(b)
Each
Lender (in its capacities as a Lender and the Swingline Lender (if applicable)
and on behalf of itself and its Affiliates as potential counterparties to Swap
Agreements) and each Issuing Bank (in such capacities and on behalf of itself
and its Affiliates as potential counterparties to Swap Agreements) hereby
irrevocably designates and appoints the Administrative Agent as the agent of
such Lender under this Agreement and the other Loan Documents, including as
the
Administrative Agent for such Lender and the other Secured Parties under the
Security Documents, and each such Lender irrevocably authorizes the
Administrative Agent,
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(b) In
furtherance of the foregoing, each Lender (in its capacities as a Lender and
the
Swingline Lender (if applicable) and on behalf of itself and its Affiliates
as
potential counterparties to Swap Agreements) and each Issuing Bank (in such
capacities and on behalf of itself and its Affiliates as potential
counterparties to Swap Agreements) hereby appoints and authorizes the
Administrative Agent to act as the agent of such Lender for purposes of
acquiring, holding and enforcing any and all Liens on Collateral granted by
any
of the Loan Parties to secure any of the Obligations, together with such powers
and discretion as are reasonably incidental thereto. In this connection, the
Administrative Agent (and any Subagents appointed by the Administrative Agent
pursuant to Section 8.02 for purposes of holding or enforcing any Lien on the
Collateral (or any portion thereof) granted under the Security Documents, or
for
exercising any rights or remedies thereunder at the direction of the
Administrative Agent) shall be entitled to the benefits of this Article VIII
(including, without limitation, Section 8.07) as though the Administrative
Agent
(and any such Subagents) were an “Agent” under the Loan Documents, as if set
forth in full herein with respect thereto.
(c) Each
Lender (in its capacities as a Lender and the Swingline Lender (if applicable)
and on behalf of itself and its Affiliates as potential counterparties to Swap
Agreements) and each Issuing Bank (in such capacities and on behalf of itself
and its Affiliates as potential counterparties to Swap Agreements) irrevocably
authorizes the Administrative Agent, at its option and in its discretion, (i)
to
release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (A) upon termination of the Commitments and payment
in
full of all Obligations (other than contingent indemnification obligations)
and
the expiration, termination or cash collateralization of all Letters of Credit
and Bankers’ Acceptances, (B) that is sold or to be sold as part of or in
connection with any sale
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(d) In
case
of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, (i) the Administrative Agent
(irrespective of whether the principal of any Obligation shall then be due
and
payable as herein expressed or by declaration or otherwise and irrespective
of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or otherwise
(A) to file and prove a claim for the whole amount of the principal and interest
owing and unpaid in respect of any or all of the Obligations that are owing
and
unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders, the Issuing Banks and the
Administrative Agent and any Subagents allowed in such judicial proceeding,
and
(B) to collect and receive any monies or other property payable or deliverable
on any such claims and to distribute the same, and (ii) any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Lender and Issuing Bank
to
make such payments to the Administrative Agent and, if the Administrative Agent
shall consent to the making of such payments directly to the Lenders and the
Issuing Banks, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due
the
Administrative Agent under the Loan Documents. Nothing contained herein shall
be
deemed to authorize the Administrative Agent to authorize or consent to or
accept or adopt on behalf of any Lender or Issuing Bank any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of any Lender or Issuing Bank or to authorize the Administrative
Agent to vote in respect of the claim of any Lender or Issuing Bank in any
such
proceeding.
SECTION
8.02. Delegation
of Duties(a) .
The
Administrative Agent may execute any of its duties under this Agreement and
the
other Loan Documents (including for purposes of holding or enforcing any Lien
on
the Collateral (or any portion thereof) by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent may also from time to time, when the Administrative Agent
deems it to be necessary or desirable, appoint one or more trustees,
co-trustees, collateral co-agents, collateral subagents or attorneys-in-fact
(each, a “Subagent”)
with
respect to all or any part of the Collateral; provided,
that no
such Subagent shall be authorized to take any action with respect to any
Collateral unless and except to the extent expressly authorized in writing
by
the Administrative Agent. Should any instrument in writing from the Borrower
or
any other Loan Party be required by any Subagent so appointed by the
Administrative Agent to
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SECTION
8.03. Exculpatory
Provisions.
Neither
any Agent or its Affiliates nor any of their respective officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (a) liable for
any
action lawfully taken or omitted to be taken by it or such person under or
in
connection with this Agreement or any other Loan Document (except to the extent
that any of the foregoing are found by a final and nonappealable decision of
a
court of competent jurisdiction to have resulted from its or such person’s own
gross negligence or willful misconduct) or (b) responsible in any manner to
any
of the Lenders for any recitals, statements, representations or warranties
made
by any Loan Party or any officer thereof contained in this Agreement or any
other Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agents under or in connection
with, this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement
or
any other Loan Document or for any failure of any Loan Party a party thereto
to
perform its obligations hereunder or thereunder. The Agents shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance
or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Loan Party. The Administrative Agent shall not have any duties
or
obligations except those expressly set forth herein and in the other Loan
Documents. Without limiting the generality of the foregoing, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default or Event of Default has occurred and
is
continuing, and (b) the Administrative Agent shall not, except as expressly
set
forth herein and in the other Loan Documents, have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to
the
Borrower or any of its Affiliates that is communicated to or obtained by the
person serving as the Administrative Agent or any of its Affiliates in any
capacity. The Administrative Agent shall be deemed not to have knowledge of
any
Default or Event of Default unless and until written notice describing such
Default or Event of Default is given to the Administrative Agent by the
Borrower, a Lender or an Issuing Bank. The Administrative Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this Agreement or
any
other Loan Document, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default or Event of Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document, or the creation,
perfection or priority of any Lien purported to be created by the Security
Documents, (v) the value or the sufficiency of any Collateral, or (vi) the
satisfaction of any condition set forth in Article IV or elsewhere herein,
other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
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SECTION
8.04. Reliance
by Administrative Agent.
The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) or
conversation believed by it to be genuine and to have been signed, sent or
otherwise authenticated by the proper person. The Administrative Agent also
may
rely upon any statement made to it orally or by telephone and believed by it
to
have been made by the proper person, and shall not incur any liability for
relying thereon. In determining compliance with any condition hereunder to
any
Credit Event, that by its terms must be fulfilled to the satisfaction of a
Lender or any Issuing Bank, the Administrative Agent may presume that such
condition is satisfactory to such Lender or Issuing Bank unless the
Administrative Agent shall have received notice to the contrary from such Lender
or the Issuing Bank prior to such Credit Event. The Administrative Agent may
consult with legal counsel (including counsel to Holdings or the Borrower),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice
of
any such counsel, accountants or experts. The Administrative Agent may deem
and
treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or
any
other Loan Document unless it shall first receive such advice or concurrence
of
the Required Lenders (or, if so specified by this Agreement, all or other
Lenders) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense that
may
be incurred by it by reason of taking or continuing to take any such action.
The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Required Lenders (or, if so specified by this
Agreement, all or other Lenders), and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.
SECTION
8.05. Notice
of Default.
The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default unless the Administrative Agent
has received written notice from a Lender, Holdings or the Borrower referring
to
this Agreement, describing such Default or Event of Default and stating that
such notice is a “notice of default.” In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed
by
the Required Lenders (or, if so specified by this Agreement, all or other
Lenders); provided,
that
unless and until the Administrative Agent shall have received such directions,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the
Lenders.
SECTION
8.06. Non-Reliance
on Agents and Other Lenders.
Each
Lender expressly acknowledges that neither the Agents nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates have made any representations or warranties
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SECTION
8.07. Indemnification.
The
Lenders agree to indemnify the Administrative Agent and each Issuing Bank in
its
capacity as such (to the extent not reimbursed by Holdings or the Borrower
and
without limiting the obligation of Holdings or the Borrower to do so), in the
amount of its pro rata share (based on its aggregate Revolving Facility
Exposure, outstanding Term Loans and unused Commitments hereunder; provided,
that
the aggregate principal amount of Swingline Loans owing to the Swingline Lender
and of L/C Disbursements owing to any Issuing Bank shall be considered to be
owed to the Revolving Facility Lenders ratably in accordance with their
respective Revolving Facility Exposure), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever that may at any time
(whether before or after the payment of the Loans) be imposed on, incurred
by or
asserted against the Administrative Agent or such Issuing Bank in any way
relating to or arising out of the Commitments, this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or
omitted by the Administrative Agent or such Issuing Bank under or in connection
with any of the foregoing; provided,
that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from the Administrative
Agent’s or such Issuing Bank’s gross negligence or willful misconduct. The
failure of any Lender to reimburse the Administrative Agent or any Issuing
Bank,
as the case may be, promptly upon demand for its ratable share of any amount
required to be paid by the Lenders to the Administrative Agent or such Issuing
Bank, as the case may be, as provided herein shall not relieve any other Lender
of its obligation hereunder to reimburse the Administrative Agent or such
Issuing Bank, as the case may be, for its ratable share of such amount, but
no
Lender shall be responsible for the failure of any other Lender to reimburse
the
Administrative Agent or such Issuing Bank, as the case may be, for such other
Lender’s ratable share of such amount. The agreements in this Section
shall
survive the payment of the Loans and all other amounts payable
hereunder.
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SECTION
8.08. Agent
in Its Individual Capacity.
Each
Agent and its affiliates may make loans to, accept deposits from, and generally
engage in any kind of business with any Loan Party as though such Agent were
not
an Agent. With respect to its Loans made or renewed by it and with respect
to
any Letter of Credit issued, or Letter of Credit or Swingline Loan participated
in, by it, each Agent shall have the same rights and powers under this Agreement
and the other Loan Documents as any Lender and may exercise the same as though
it were not an Agent, and the terms “Lender” and “Lenders” shall include each
Agent in its individual capacity.
SECTION
8.09. Successor
Administrative Agent.
The
Administrative Agent may resign as Administrative Agent upon 10 days’ notice to
the Lenders and the Borrower. If the Administrative Agent shall resign as
Administrative Agent under this Agreement and the other Loan Documents, then
the
Required Lenders shall appoint from among the Lenders a successor agent for
the
Lenders, which successor agent shall (unless an Event of Default under Section
7.01(b), (c), (h) or (i) shall have occurred and be continuing) be subject
to
approval by the Borrower (which approval shall not be unreasonably withheld
or
delayed), whereupon such successor agent shall succeed to the rights, powers
and
duties of the Administrative Agent, and the term “Administrative Agent” shall
mean such successor agent effective upon such appointment and approval, and
the
former Administrative Agent’s rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or
any
holders of the Loans. If no successor agent has accepted appointment as
Administrative Agent by the date that is 10 days following a retiring
Administrative Agent’s notice of resignation, the retiring Administrative
Agent’s resignation shall nevertheless thereupon become effective, and the
retiring Administrative Agent shall, on behalf of the Lenders and the Issuing
Bank, appoint a successor agent which shall (unless an Event of Default under
Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing) be
subject to approval by the Borrower (which approval shall not be unreasonably
withheld or delayed). After any retiring Administrative Agent’s resignation as
Administrative Agent, the provisions of this Section 8.09 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan
Documents.
SECTION
8.10. Agents
and Arrangers.
Neither
the Syndication Agent, the Documentation Agents nor any of the Joint Lead
Arrangers shall have any duties or responsibilities hereunder in its capacity
as
such.
ARTICLE
IX
Miscellaneous
SECTION
9.01. Notices;
Communications.
i) Except
in the case of notices and other communications expressly permitted to be given
by telephone (and except as provided in Section 9.01(b) below), all notices
and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier as follows, and
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(i) if
to any
Loan Party, the Administrative Agent, the Issuing Bank or the Swingline Lender,
to the address, telecopier number, electronic mail address or telephone number
specified for such person on Schedule
9.01;
and
(ii) if
to any
other Lender, to the address, telecopier number, electronic mail address or
telephone number specified in its Administrative Questionnaire.
(b) Notices
and other communications to the Lenders and the L/C Issuer hereunder may be
delivered or furnished by electronic communication (including e-mail and
Internet or intranet websites) pursuant to procedures approved by the
Administrative Agent; provided
that the
foregoing shall not apply to notices to any Lender or the Issuing Bank pursuant
to Article II if such Lender or the Issuing Bank, as applicable, has notified
the Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower
may, in its discretion, agree to accept notices and other communications to
it
hereunder by electronic communications pursuant to procedures approved by it,
provided
that
approval of such procedures may be limited to particular notices or
communications.
(c) Notices
sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received. Notices sent by
telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in Section 9.01(b) above shall be effective as provided in such Section
9.01(b).
(d) Any
party
hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto.
(e) Documents
required to be delivered pursuant to Section 5.04 (to the extent any such
documents are included in materials otherwise filed with the SEC) may be
delivered electronically (including as set forth in Section 9.17) and if so
delivered, shall be deemed to have been delivered on the date (i) on which
the
Borrower posts such documents, or provides a link thereto on the Borrower’s
website on the Internet at the website address listed on Schedule
9.01,
or (ii)
on which such documents are posted on the Borrower’s behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent
have
access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided,
that
(A) the Borrower shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Borrower to deliver such
paper copies until a written request to cease delivering paper copies is given
by the Administrative Agent or such Lender, and (B) the Borrower shall notify
the Administrative Agent and each Lender (by telecopier or electronic mail)
of
the posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (i.e.,
soft
copies) of such documents. Notwithstanding anything contained herein, in every
instance the Borrower shall be
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SECTION
9.02. Survival
of Agreement.
All
covenants, agreements, representations and warranties made by the Loan Parties
herein, in the other Loan Documents and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this Agreement or any
other Loan Document shall be considered to have been relied upon by the Lenders
and each Issuing Bank and shall survive the making by the Lenders of the Loans,
the execution and delivery of the Loan Documents and the issuance of the Letters
of Credit, regardless of any investigation made by such persons or on their
behalf, and shall continue in full force and effect as long as the principal
of
or any accrued interest on any Loan or L/C Disbursement or any Fee or any other
amount payable under this Agreement or any other Loan Document is outstanding
and unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not been terminated. Without prejudice to the survival of any other
agreements contained herein, indemnification and reimbursement obligations
contained herein (including pursuant to Sections 2.15, 2.17 and 9.05) shall
survive the payment in full of the principal and interest hereunder, the
expiration of the Letters of Credit and the termination of the Commitments
or
this Agreement.
SECTION
9.03. Binding
Effect.
This
Agreement shall become effective when it shall have been executed by Holdings,
the Borrower and the Administrative Agent and when the Administrative Agent
shall have received copies hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of Holdings, the Borrower, each Issuing Bank,
the
Administrative Agent and each Lender and their respective permitted successors
and assigns.
SECTION
9.04. Successors
and Assigns.
ii) The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns permitted hereby
(including any affiliate of the Issuing Bank that issues any Letter of Credit
or
Bankers’ Acceptance), except that (i) the Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void), except pursuant to the
Acquisition, and (ii) no Lender may assign or otherwise transfer its rights
or
obligations hereunder except in accordance with this Section 9.04. Nothing
in this Agreement, expressed or implied, shall be construed to confer upon
any
person (other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of
this Section 9.04), and, to the extent expressly contemplated hereby, the
Related Parties of each of the Agents, the Issuing Bank and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement
or the other Loan Documents.
(b) (a) Subject
to the conditions set forth in paragraph (b)(ii) below, any Lender may
assign to one or more assignees (each, an “Assignee”)
all or
a portion of its rights and obligations under this Agreement (including all
or a
portion of its Commitments and
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the
Loans
at the time owing to it) with the prior written consent (such consent not to
be
unreasonably withheld) of:
(A) the
Borrower; provided,
that no
consent of the Borrower shall be required for an assignment to a Lender, an
affiliate of a Lender, an Approved Fund (as defined below) or, if an Event
of
Default under Sections 7.01(b), (c), (h) or (i) has occurred and is continuing,
any other person;
(B) the
Administrative Agent; provided,
that no
consent of the Administrative Agent shall be required for an assignment of
all
or any portion of a Term Loan to a Lender, an Affiliate of a Lender or an
Approved Fund; and
(C) the
Issuing Bank and the Swingline Lender; provided,
that no
consent of the Issuing Bank and the Swingline Lender shall be required for
an
assignment of all or any portion of a Term Loan.
(ii) Assignments
shall be subject to the following additional conditions:
(A) except
in
the case of an assignment to a Lender, an affiliate of a Lender or an Approved
Fund or an assignment of the entire remaining amount of the assigning Lender’s
Commitments or Loans under any Facility, the amount of the Commitments or Loans
of the assigning Lender subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to such assignment is delivered
to the Administrative Agent) shall not be less than (x) $1.0 million in the
case
of Term Loans and (y) $5.0 million in the case of Revolving Facility Loans
or
Revolving Facility Commitments, unless each of the Borrower and the
Administrative Agent otherwise consent; provided,
that
(1) no such consent of the Borrower shall be required if an Event of Default
under Sections 7.01(b), (c), (h) or (i) has occurred and is continuing and
(2)
such amounts shall be aggregated in respect of each Lender and its Affiliates
or
Approved Funds (with simultaneous assignments to or by two or more Related
Funds
shall be treated as one assignment), if any;
(B) the
parties to each assignment shall execute and deliver to the Administrative
Agent
an Assignment and Acceptance via an electronic settlement system acceptable
to
the Administrative Agent (or, if previously agreed with the Administrative
Agent, manually), and shall pay to the Administrative Agent a processing and
recordation fee of
$3,500
(which fee may be waived or reduced in the sole discretion of the Administrative
Agent);
(C) the
Assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent
an Administrative Questionnaire and all applicable tax forms; and
(D)
the
Assignee shall not be the Borrower or any of the Borrower’s Affiliates or
Subsidiaries.
For
the
purposes of this Section 9.04, “Approved
Fund”
means
any person (other than a natural person) that is engaged in making, purchasing,
holding or investing in bank loans and similar extensions of credit in the
ordinary course and that is administered or managed by
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(a)
a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of
an
entity that administers or manages a Lender. Notwithstanding the foregoing,
no
Lender shall be permitted to assign or transfer any portion of its rights and
obligations under this Agreement to any entity previously identified in that
certain letter dated as of the date hereof from the Borrower to the
Administrative Agent.
(b) Subject
to acceptance and recording thereof pursuant to paragraph (b)(v) below,
from and after the effective date specified in each Assignment and Acceptance
the Assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment
and
Acceptance, be released from its obligations under this Agreement (and, in
the
case of an Assignment and Acceptance covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be
a
party hereto but shall continue to be entitled to the benefits of Sections
2.15,
2.16, 2.17 and 9.05). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this
Section 9.04 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance
with
paragraph (c) of this Section 9.04.
(c) The
Administrative Agent, acting for this purpose as an agent of the Borrower,
shall
maintain at one of its offices a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses
of
the Lenders, and the Commitments of, and principal amount of the Loans and
Revolving L/C Exposure owing to, each Lender pursuant to the terms hereof from
time to time (the “Register”).
The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent, the Issuing Bank and the Lenders may treat each person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower, the
Issuing Bank and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon
its
receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an Assignee, the Assignee’s completed Administrative Questionnaire
(unless the Assignee shall already be a Lender hereunder), all applicable tax
forms, the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall promptly
accept such Assignment and Acceptance and record the information contained
therein in the Register. No assignment, whether or not evidenced by a promissory
note, shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph (b)(v).
(c) (e) Any
Lender may, without the consent of the Borrower or the Administrative Agent,
sell participations to one or more banks or other entities (a “Participant”)
in all
or a portion of such Lender’s rights and obligations under this Agreement
(including all or a portion of its Commitments and the Loans owing to it);
provided,
that
(A) such Lender’s obligations under this Agreement shall remain unchanged, (B)
such Lender shall remain solely responsible to the other parties hereto for
the
performance of such obligations and (C) the
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(f) A
Participant shall not be entitled to receive any greater payment under
Section 2.15, 2.16 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower’s prior written consent. A Participant shall not be entitled to the
benefits of Section 2.17 to the extent such Participant fails to comply
with Section 2.17(e) and (f) as though it were a Lender.
(d) Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender,
including (i) any pledge or assignment to secure obligations to a Federal
Reserve Bank, (ii) the
case
of any Lender that is a Fund, any pledge or assignment to any holders of
obligations owed, or securities issued, by such Lender including to any trustee
for, or any other representative of, such holders
and in
each case, this Section 9.04 shall not apply to any such pledge or
assignment of a security interest; provided,
that no
such pledge or assignment of a security interest shall release a Lender from
any
of its obligations hereunder or substitute any such pledgee or Assignee for
such
Lender as a party hereto.
(e) The
Borrower, upon receipt of written notice from the relevant Lender, agrees to
issue Notes to any Lender requiring Notes to facilitate transactions of the
type
described in paragraph (d) above.
(f) Notwithstanding
the foregoing, any Conduit Lender may assign any or all of the Loans it may
have
funded hereunder to its designating Lender without the consent of the Borrower
or the Administrative Agent. Each of Holdings, the Borrower, each Lender and
the
Administrative Agent hereby confirms that it will not institute against a
Conduit Lender or join any other person in instituting against a Conduit Lender
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding under any state bankruptcy or similar law, for one year and one
day
after the payment in full of the latest maturing commercial paper note issued
by
such Conduit Lender; provided,
however, that each Lender designating any Conduit Lender hereby agrees to
indemnify, save and hold harmless each other party
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(g) If
the
Borrower wishes to replace the Loans or Commitments under any Facility with
ones
having different terms, it shall have the option, with the consent of the
Administrative Agent and subject to at least three Business Days’ advance notice
to the Lenders under such Facility, instead of prepaying the Loans or reducing
or terminating the Commitments to be replaced, to (i) require the Lenders under
such Facility to assign such Loans or Commitments to the Administrative Agent
or
its designees and (ii) amend the terms thereof in accordance with
Section 9.08 (with such replacement, if applicable, being deemed to have
been made pursuant to Section 9.08(d)). Pursuant to any such assignment,
all Loans and Commitments to be replaced shall be purchased at par (allocated
among the Lenders under such Facility in the same manner as would be required
if
such Loans were being optionally prepaid or such Commitments were being
optionally reduced or terminated by the Borrower), accompanied by payment of
any
accrued interest and fees thereon and any other amounts owing pursuant to
Section 9.05(b). By receiving such purchase price, the Lenders under such
Facility shall automatically be deemed to have assigned the Loans or Commitments
under such Facility pursuant to the terms of the form of Assignment and
Acceptance attached hereto as Exhibit A,
and
accordingly no other action by such Lenders shall be required in connection
therewith. The provisions of this paragraph (g) are intended to facilitate
the maintenance of the perfection and priority of existing security interests
in
the Collateral during any such replacement.
(h) Notwithstanding
the foregoing, no assignment may be made or participation sold to an Ineligible
Institution without the prior written consent of the Borrower.
SECTION
9.05. Expenses;
Indemnity.
iii) The
Borrower agrees to pay (i) all reasonable out-of-pocket expenses (including
Other Taxes) incurred by the Administrative Agent in connection with the
preparation of this Agreement and the other Loan Documents, or by the
Administrative Agent in connection with the syndication of the Commitments
or
the administration of this Agreement (including expenses incurred in connection
with due diligence and initial and ongoing Collateral examination to the extent
incurred with the reasonable prior approval of the Borrower and the reasonable
fees, disbursements and charges for no more than one counsel in each
jurisdiction where Collateral is located) or in connection with the
administration of this Agreement and any amendments, modifications or waivers
of
the provisions hereof or thereof (whether or not the Transactions hereby
contemplated shall be consummated), including the reasonable fees, charges
and
disbursements of Xxxxxx & Xxxxxxx LLP, counsel for the Administrative Agent
and the Joint Lead Arrangers, and, if necessary, the reasonable fees, charges
and disbursements of one local counsel per jurisdiction, and (ii) all
out-of-pocket expenses (including Other Taxes) incurred by the Administrative
Agent or any Lender in connection with the enforcement or protection of their
rights in connection with this Agreement and the other Loan Documents, in
connection with the Loans made or the Letters of Credit issued hereunder,
including the fees, charges and disbursements of counsel for the Administrative
Agent (including any special and local counsel).
(b) The
Borrower agrees to indemnify the Administrative Agent, the Agents, the Joint
Lead Arrangers, each Issuing Bank, each Lender, each of their respective
Affiliates and each of their respective directors, trustees, officers,
employees, agents, trustees and
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(c) Except
as
expressly provided in Section 9.05(a) with respect to Other Taxes, which
shall not be duplicative with any amounts paid pursuant to Section 2.17,
this Section 9.05 shall not apply to Taxes.
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(d) To
the
fullest extent permitted by applicable law, Holdings and the Borrower shall
not
assert, and hereby waive, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any Loan
or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall
be
liable for any damages arising from the use by unintended recipients of any
information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby
or
thereby.
(e) The
agreements in this Section 9.05 shall survive the resignation of the
Administrative Agent, any Issuing Bank, the replacement of any Lender, the
termination of the Commitments and the repayment, satisfaction or discharge
of
all the other Obligations and the termination of this Agreement.
SECTION
9.06. Right
of Set-off.
If an
Event of Default shall have occurred and be continuing, each Lender and each
Issuing Bank is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held
and
other indebtedness at any time owing by such Lender or such Issuing Bank to
or
for the credit or the account of Holdings (prior to a Qualified IPO), the
Borrower or any Subsidiary against any of and all the obligations of Holdings
(prior to a Qualified IPO) or the Borrower now or hereafter existing under
this
Agreement or any other Loan Document held by such Lender or such Issuing Bank,
irrespective of whether or not such Lender or such Issuing Bank shall have
made
any demand under this Agreement or such other Loan Document and although the
obligations may be unmatured. The rights of each Lender and each Issuing Bank
under this Section 9.06 are in addition to other rights and remedies
(including other rights of set-off) that such Lender or such Issuing Bank may
have.
SECTION
9.07. Applicable
Law.
THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS
EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION
9.08. Waivers;
Amendment.
iv) No
failure or delay of the Administrative Agent, any Issuing Bank or any Lender
in
exercising any right or power hereunder or under any Loan Document shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right
or power, or any abandonment or discontinuance of steps to enforce such a right
or power, preclude any other or further exercise thereof or the exercise of
any
other right or power. The rights and remedies of the Administrative Agent,
each
Issuing Bank and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or any other Loan
Document or consent to any departure by Holdings, the Borrower or any other
Loan
Party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
No
notice or demand on
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(b) Neither
this Agreement nor any other Loan Document nor any provision hereof or thereof
may be waived, amended or modified except (x) as provided in Section 2.21,
(y)
in the case of this Agreement, pursuant to an agreement or agreements in writing
entered into by Holdings (prior to a Qualified IPO), the Borrower and the
Required Lenders, and (z) in the case of any other Loan Document, pursuant
to an
agreement or agreements in writing entered into by each party thereto and the
Administrative Agent and consented to by the Required Lenders; provided,
however,
that no
such agreement shall
(i) decrease
or forgive the principal amount of, or extend the final maturity of, or decrease
the rate of interest on, any Loan or any L/C Disbursement, or extend the stated
expiration of any Letter of Credit or Bankers’ Acceptance beyond the Revolving
Facility Maturity Date, without the prior written consent of each Lender
directly affected thereby, except as provided in Section 2.05(c); provided,
that
any amendment to the financial covenant definitions in this Agreement shall
not
constitute a reduction in the rate of interest for purposes of this
clause (i),
(ii) increase
or extend the Commitment of any Lender or decrease the Commitment Fees or L/C
Participation Fees or other fees of any Lender without the prior written consent
of such Lender (it being understood that waivers or modifications of conditions
precedent, covenants, Defaults or Events of Default or of a mandatory reduction
in the aggregate Commitments shall not constitute an increase of the Commitments
of any Lender),
(iii) extend
or
waive any Term Loan Installment Date or reduce the amount due on any Term Loan
Installment Date or extend any date on which payment of interest on any Loan
or
any L/C Disbursement or any Fees is due, without the prior written consent
of
each Lender adversely affected thereby,
(iv) amend
the
provisions of Section 5.02 of the Collateral Agreement in a manner that would
by
its terms alter the pro rata
sharing
of payments required thereby, without the prior written consent of each Lender
adversely affected thereby,
(v) amend
or
modify the provisions of this Section 9.08 or the definition of the terms
“Required Lenders,” “Majority Lenders” or any other provision hereof specifying
the number or percentage of Lenders required to waive, amend or modify any
rights hereunder or make any determination or grant any consent hereunder,
without the prior written consent of each Lender adversely affected thereby
(it
being understood that, with the consent of the Required Lenders, additional
extensions of credit pursuant to this Agreement may be included in the
determination of the Required Lenders on substantially the same basis as the
Loans and Commitments are included on the Closing Date),
(vi) release
all or substantially all the Collateral or release any of Holdings (prior to
a
Qualified IPO), the Borrower or all or
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substantially
all of the Subsidiary Loan Parties from their respective Guarantees under the
Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or
substantially all the Equity Interests of such Subsidiary Loan Party is sold
or
otherwise disposed of in a transaction permitted by this Agreement, without
the
prior written consent of each Lender;
(vii) effect
any waiver, amendment or modification that by its terms adversely affects the
rights in respect of payments or collateral of Lenders participating in any
Facility differently from those of Lender participating in another Facility,
without the consent of the Majority Lenders participating in the adversely
affected Facility (it being agreed that the Required Lenders may waive, in
whole
or in part, any prepayment or Commitment reduction required by Section 2.11
so long as the application of any prepayment or Commitment reduction still
required to be made is not changed);
provided,
further,
that no
such agreement shall amend, modify or otherwise affect the rights or duties
of
the Administrative Agent or an Issuing Bank hereunder without the prior written
consent of the Administrative Agent or such Issuing Bank acting as such at
the
effective date of such agreement, as applicable. Each Lender shall be bound
by
any waiver, amendment or modification authorized by this Section 9.08 and
any consent by any Lender pursuant to this Section 9.08 shall bind any
assignee of such Lender.
(c) Without
the consent of the Syndication Agent, the Documentation Agent or any Joint
Lead
Arranger or Lender or Issuing Bank, the Loan Parties and the Administrative
Agent may (in their respective sole discretion, or shall, to the extent required
by any Loan Document) enter into any amendment, modification or waiver of any
Loan Document, or enter into any new agreement or instrument, to effect the
granting, perfection, protection, expansion or enhancement of any security
interest in any Collateral or additional property to become Collateral for
the
benefit of the Secured Parties, or as required by local law to give effect
to,
or protect any security interest for the benefit of the Secured Parties, in
any
property or so that the security interests therein comply with applicable
law.
(d) Notwithstanding
the foregoing, this Agreement may be amended (or amended and restated) with
the
written consent of the Required Lenders, the Administrative Agent, Holdings
and
the Borrower (a) to add one or more additional credit facilities to this
Agreement and to permit the extensions of credit from time to time outstanding
thereunder and the accrued interest and fees in respect thereof to share ratably
in the benefits of this Agreement and the other Loan Documents with the Term
Loans and the Revolving Facility Loans and the accrued interest and fees in
respect thereof and (b) to include appropriately the Lenders holding such credit
facilities in any determination of the Required Lenders.
(e) Notwithstanding
the foregoing, technical and conforming modifications to the Loan Documents
may
be made with the consent of the Borrower and the Administrative Agent to the
extent necessary to integrate any Incremental Term Loan Commitments or
Incremental Revolving Facility Commitments on substantially the same basis
as
the Term Loans or Revolving Facility Loans, as applicable.
SECTION
9.09. Interest
Rate Limitation.
Notwithstanding anything herein to the contrary, if at any time the
applicable
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SECTION
9.10. Entire
Agreement.
This
Agreement, the other Loan Documents and the agreements regarding certain Fees
referred to herein constitute the entire contract between the parties relative
to the subject matter hereof. Any previous agreement among or representations
from the parties or their Affiliates with respect to the subject matter hereof
is superseded by this Agreement and the other Loan Documents. Notwithstanding
the foregoing, the Fee Letter shall survive the execution and delivery of this
Agreement and remain in full force and effect. Nothing in this Agreement or
in
the other Loan Documents, expressed or implied, is intended to confer upon
any
party other than the parties hereto and thereto any rights, remedies,
obligations or liabilities under or by reason of this Agreement or the other
Loan Documents.
SECTION
9.11. WAIVER
OF JURY TRIAL.
EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR
ANY
OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER
LOAN
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 9.11.
SECTION
9.12. Severability.
In the
event any one or more of the provisions contained in this Agreement or in any
other Loan Document should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal
or
unenforceable provisions.
SECTION
9.13. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
constitute an original but all of which, when taken together, shall constitute
but one contract, and shall become effective as provided in Section 9.03.
Delivery of an executed counterpart to this Agreement by facsimile transmission
(or other electronic transmission pursuant to procedures approved by the
Administrative Agent) shall be as effective as delivery of a manually signed
original.
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SECTION
9.14. Headings.
Article
and Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Agreement.
SECTION
9.15. Jurisdiction;
Consent to Service of Process.
v) Each
of the parties hereto hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State court
or federal court of the United States of America sitting in New York City,
and
any appellate court from any thereof (collectively, “New
York Courts”),
in
any action or proceeding arising out of or relating to this Agreement or the
other Loan Documents, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Agreement or any of
the
other Loan Documents in the courts of any jurisdiction, except that each of
the
Loan Parties agrees that (a) it will not bring any such action or proceeding
in
any court other than New York Courts (it being acknowledged and agreed by the
parties hereto that any other forum would be inconvenient and inappropriate
in
view of the fact that more of the Lenders who would be affected by any such
action or proceeding have contacts with the State of New York than any other
jurisdiction), and (b) in any such action or proceeding brought against any
Loan
Party in any other court, it will not assert any cross-claim, counterclaim
or
setoff, or seek any other affirmative relief, except to the extent that the
failure to assert the same will preclude such Loan Party from asserting or
seeking the same in the New York Courts.
(b) Each
of
the parties hereto hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now
or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement or the other Loan Documents in any New
York
State or federal court. Each of the parties hereto hereby irrevocably waives,
to
the fullest extent permitted by law, the defense of an inconvenient forum to
the
maintenance of such action or proceeding in any such court.
SECTION
9.16. Confidentiality.
Each of
the Lenders, each Issuing Bank and each of the Agents agrees that it shall
maintain in confidence any information relating to Holdings, the Borrower and
any Subsidiary furnished to it by or on behalf of Holdings, the Borrower or
any
Subsidiary (other than information that (a) has become generally available
to
the public other than as a result of a disclosure by such party, (b) has been
independently developed by such Lender, such Issuing Bank or such Agent without
violating this Section 9.16 or (c) was available to such Lender, such
Issuing Bank or such Agent from a third party having, to such person’s
knowledge, no obligations of confidentiality to Holdings, the Borrower or any
other Loan Party) and shall not reveal the same other than to its directors,
trustees, officers, employees and advisors with a need to know or to any person
that approves or administers the Loans on behalf of such Lender (so long as
each
such person shall have been instructed to keep the same confidential in
accordance with this Section 9.16), except: (A) to the extent necessary to
comply with law or any legal process or the requirements of any Governmental
Authority, the National Association of
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SECTION
9.17. Platform;
Borrower Materials(a) .
The
Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint
Lead Arrangers will make available to the Lenders and the Issuing Bank materials
and/or information provided by or on behalf of the Borrower hereunder
(collectively, “Borrower
Materials”)
by
posting the Borrower Materials on IntraLinks or another similar electronic
system (the “Platform”),
and
(b) certain of the Lenders may be “public-side” Lenders (i.e.,
Lenders
that do not wish to receive material non-public information with respect to
the
Borrower or its securities) (each, a “Public
Lender”).
The
Borrower hereby agrees that it will use commercially reasonable efforts to
identify that portion of the Borrower Materials that may be distributed to
the
Public Lenders and that (i) all such Borrower Materials shall be clearly and
conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word
“PUBLIC” shall appear prominently on the first page thereof, (ii) by marking
Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the
Administrative Agent, the Arranger, the Issuing Bank and the Lenders to treat
such Borrower Materials as either publicly available information or not material
information (although it may be sensitive and proprietary) with respect to
the
Borrower or its securities for purposes of United States Federal and state
securities laws, (iii) all Borrower Materials marked “PUBLIC” are permitted to
be made available through a portion of the Platform designated “Public
Investor;” and (iv) the Administrative Agent and the Joint Lead Arrangers shall
be entitled to treat any Borrower Materials that are not marked “PUBLIC” as
being suitable only for posting on a portion of the Platform not designated
“Public Investor.”
SECTION
9.18. Release
of Liens and Guarantees(a) .
In the
event that any Loan Party conveys, sells, leases, assigns, transfers or
otherwise disposes of all or any portion of any of the Equity Interests or
assets of any Subsidiary Loan Party to a person that is not (and is not required
to become) a Loan Party in a transaction not prohibited by Section 6.05,
the Administrative Agent shall promptly (and the Lenders hereby authorize the
Administrative Agent to) take such action and execute any such documents as
may
be reasonably requested by Holdings or the Borrower and at the Borrower’s
expense to release any Liens created by any Loan Document in respect of such
Equity Interests or assets, and, in the case of a disposition of the Equity
Interests of any Subsidiary Loan Party in a transaction permitted by
Section 6.05 and as a result of which such Subsidiary Loan Party would
cease to be a Subsidiary, terminate such Subsidiary Loan Party’s obligations
under its Guarantee. In addition, the Administrative Agent agrees to take such
actions as are reasonably requested by Holdings
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SECTION
9.19. Judgment
Currency.
If, for
the purposes of obtaining judgment in any court, it is necessary to convert
a
sum due hereunder or any other Loan Document in one currency into another
currency, the rate of exchange used shall be that at which in accordance with
normal banking procedures the Administrative Agent could purchase the first
currency with such other currency on the Business Day preceding that on which
final judgment is given. The obligation of the Borrower in respect of any such
sum due from it to the Administrative Agent or the Lenders hereunder or under
the other Loan Documents shall, notwithstanding any judgment in a currency
(the
“Judgment
Currency”)
other
than that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the “Agreement
Currency”),
be
discharged only to the extent that on the Business Day following receipt by
the
Administrative Agent of any sum adjudged to be so due in the Judgment Currency,
the Administrative Agent may in accordance with normal banking procedures
purchase the Agreement Currency with the Judgment Currency. If the amount of
the
Agreement Currency so purchased is less than the sum originally due to the
Administrative Agent from the Borrower in the Agreement Currency, the Borrower
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify the Administrative Agent or the person to whom such obligation was
owing against such loss. If the amount of the Agreement Currency so purchased
is
greater than the sum originally due to the Administrative Agent in such
currency, the Administrative Agent agrees to return the amount of any excess
to
the Borrower (or to any other person who may be entitled thereto under
applicable law).
SECTION
9.20. USA
PATRIOT Act Notice.
Each
Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrower that pursuant to the requirements of the USA PATRIOT
Act
(Title
III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),
it is
required to obtain, verify and record information that identifies each Loan
Party, which information includes the name and address of each Loan Party and
other information that will allow such Lender or the Administrative Agent,
as
applicable, to identify each Loan Party in accordance with the Act.
[Signature
Pages Follow]
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038263-0065||
-145-
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
written above.
XXXXX
PLASTICS GROUP, INC.
By:_________________________
Name:
Title:
BPC
ACQUISITION CORP.
By:_________________________
Name:
Title:
CREDIT
SUISSE, CAYMAN ISLANDS BRANCH
as
Administrative Agent and as a Lender
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
CITICORP
NORTH AMERICA, INC.,
as
Syndication Agent and as a Lender
By:________________________________
Name:
Title:
SIGNATURE
PAGE TO THE CREDIT AGREEMENT DATED AS OF SEPTEMBER 20, 2006 AMONG XXXXX PLASTICS
GROUP, INC., BPC ACQUISITION CORP., THE LENDERS PARTY HERETO AND CREDIT SUISSE,
CAYMAN ISLANDS BRANCH, AS ADMINISTRATIVE AGENT
Name
of
Institution:
________________________________________
By:_____________________________________
Name:
Title:
