EXHIBIT 4.1
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CREDIT AGREEMENT
dated as of
June 23, 2006,
among
INTERLINE BRANDS, INC.,
a Delaware corporation,
as Holdings
INTERLINE BRANDS, INC.,
a New Jersey corporation
as Borrower,
The Lenders Party Hereto,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
XXXXXX COMMERCIAL PAPER INC.,
as Syndication Agent
and
CREDIT SUISSE
BANK OF AMERICA, N.A.
WACHOVIA BANK, NATIONAL ASSOCIATION
SUNTRUST BANK
as Co-Documentation Agents
___________________________
X.X. XXXXXX SECURITIES INC. and
XXXXXX BROTHERS INC.,
as Joint Bookrunners and Joint-Lead Arrangers
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TABLE OF CONTENTS
PAGE
ARTICLE I
Definitions
SECTION 1.01. Defined Terms..................................................2
SECTION 1.02. Classification of Loans and Borrowings........................27
SECTION 1.03. Terms Generally...............................................27
SECTION 1.04. Accounting Terms; GAAP........................................28
ARTICLE II
The Credits
SECTION 2.01. Commitments...................................................28
SECTION 2.02. Loans and Borrowings..........................................28
SECTION 2.03. Requests for Borrowings.......................................29
SECTION 2.04. Swingline Loans...............................................30
SECTION 2.05. Letters of Credit.............................................31
SECTION 2.06. Funding of Borrowings.........................................36
SECTION 2.07. Interest Elections............................................37
SECTION 2.08. Termination and Reduction of Commitments......................38
SECTION 2.09. Repayment of Loans; Evidence of Debt..........................38
SECTION 2.10. Amortization of Term Loans....................................39
SECTION 2.11. Prepayment of Loans...........................................41
SECTION 2.12. Fees 43
SECTION 2.13. Interest 44
SECTION 2.14. Alternate Rate of Interest....................................45
SECTION 2.15. Increased Costs...............................................45
SECTION 2.16. Break Funding Payments........................................46
SECTION 2.17. Taxes 47
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs...48
SECTION 2.19. Mitigation Obligations; Replacement of Lenders................50
SECTION 2.20. Incremental Extensions of Credit..............................51
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers..........................................52
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SECTION 3.02. Authorization; Enforceability.................................52
SECTION 3.03. Governmental Approvals; No Conflicts..........................53
SECTION 3.04. Financial Condition; No Material Adverse Change...............53
SECTION 3.05. Properties....................................................54
SECTION 3.06. Litigation and Environmental Matters..........................54
SECTION 3.07. Compliance with Laws and Agreements...........................55
SECTION 3.08. Investment and Holding Company Status.........................55
SECTION 3.09. Taxes 55
SECTION 3.10. ERISA 55
SECTION 3.11. Disclosure....................................................55
SECTION 3.12. Subsidiaries..................................................56
SECTION 3.13. Insurance.....................................................56
SECTION 3.14. Labor Matters.................................................56
SECTION 3.15. Solvency 56
SECTION 3.16. Senior Indebtedness; Designated Senior Indebtedness...........57
ARTICLE IV
Conditions
SECTION 4.01. Effective Date................................................57
SECTION 4.02. Delayed Draw Funding Date.....................................59
SECTION 4.03. Each Credit Event.............................................60
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information....................61
SECTION 5.02. Notices of Material Events....................................62
SECTION 5.03. Information Regarding Collateral..............................63
SECTION 5.04. Existence; Conduct of Business................................63
SECTION 5.05. Payment of Obligations........................................64
SECTION 5.06. Maintenance of Properties.....................................64
SECTION 5.07. Insurance.....................................................64
SECTION 5.08. Casualty and Condemnation.....................................64
SECTION 5.09. Books and Records; Inspection and Audit Rights................64
SECTION 5.10. Compliance with Laws..........................................65
SECTION 5.11. Use of Proceeds and Letters of Credit.........................65
SECTION 5.12. Additional Subsidiaries.......................................65
SECTION 5.13. Further Assurances............................................65
ARTICLE VI
Negative Covenants
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SECTION 6.01. Indebtedness; Certain Equity Securities.......................66
SECTION 6.02. Liens ........................................................69
SECTION 6.03. Fundamental Changes...........................................70
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions.....71
SECTION 6.05. Asset Sales...................................................74
SECTION 6.06. Sale and Leaseback Transactions...............................75
SECTION 6.07. Swap Agreements...............................................75
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness.........75
SECTION 6.09. Transactions with Affiliates..................................77
SECTION 6.10. Restrictive Agreements........................................78
SECTION 6.11. Amendment of Material Documents...............................78
SECTION 6.12. Interest Expense Coverage Ratio...............................78
SECTION 6.13. Net Leverage Ratio............................................79
SECTION 6.14. Maximum Capital Expenditures..................................80
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices ......................................................85
SECTION 9.02. Waivers; Amendments...........................................86
SECTION 9.02.A. Amendment Fees..............................................88
SECTION 9.03. Expenses; Indemnity; Damage Waiver............................88
SECTION 9.04. Successors and Assigns........................................90
SECTION 9.05. Survival .....................................................93
SECTION 9.06. Counterparts; Integration; Effectiveness......................94
SECTION 9.07. Severability..................................................94
SECTION 9.08. Right of Setoff...............................................94
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process....95
SECTION 9.10. WAIVER OF JURY TRIAL..........................................95
SECTION 9.11. Headings .....................................................96
SECTION 9.12. Confidentiality...............................................96
SECTION 9.13. Interest Rate Limitation......................................97
SECTION 9.14. USA Patriot Act...............................................97
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SCHEDULES:
Schedule 1.01(a) -- Mortgaged Property
Schedule 1.01(b) -- Specified Properties
Schedule 2.01 -- Commitments
Schedule 2.05 -- Existing Letters of Credit
Schedule 3.05 -- Real Property
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.04 -- Existing Investments
Schedule 6.09 -- Transactions with Affiliates
Schedule 6.10 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Assumption
Exhibit B -- Form of Borrowing Request
Exhibit C -- Form of Interest Election Request
Exhibit D-1 -- Form of Opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, LLP
Exhibit D-2 -- Form of Opinion of Dechert LLP
Exhibit E -- Form of Guarantee and Collateral Agreement
Exhibit F -- Form of Perfection Certificate
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CREDIT AGREEMENT dated as of June 23, 2006,
among INTERLINE BRANDS, INC., a Delaware corporation
("HOLDINGS"), INTERLINE BRANDS, INC., a New Jersey
corporation (the "BORROWER"), the LENDERS party hereto,
JPMORGAN CHASE BANK, N.A., as Administrative Agent,
XXXXXX COMMERCIAL PAPER INC., as Syndication Agent, and
CREDIT SUISSE, BANK OF AMERICA, N.A., SUNTRUST BANK and
WACHOVIA BANK, NATIONAL ASSOCIATION, as
Co-Documentation Agents.
Reference is made to the Amended and Restated Credit Agreement
dated as of December 21, 2004 (as amended, supplemented or otherwise modified
prior to the date hereof, the "EXISTING CREDIT AGREEMENT"), among Holdings, the
Borrower, the lenders party thereto, Credit Suisse, Cayman Islands Branch
(formerly known as Credit Suisse First Boston, acting through its Cayman
Islands Branch), as Administrative Agent, and JPMorgan Chase Bank, N.A., as
Syndication Agent.
On the Effective Date (such term and each other capitalized
term used but not defined in this preamble having the meaning assigned thereto
in Article I), the Borrower intends to (a) consummate the Debt Tender Offer,
(b) issue the Senior Subordinated Notes, (c) pay in full all principal,
interest, fees and other amounts outstanding under the Existing Credit
Agreement, with the result that the Existing Credit Agreement and all
commitments, obligations and security interests thereunder will be terminated
and (d) pay fees and expenses in connection with the foregoing. In addition, on
the AmSan Acquisition Closing Date, pursuant to the Securities Purchase
Agreement and the transactions contemplated thereby, the Borrower will acquire
(the "AMSAN ACQUISITION") all the outstanding Equity Interests in AmSan, LLC, a
Delaware limited liability company ("AMSAN"), for aggregate cash consideration
of approximately $127,500,000 (subject to adjustment as provided in the
Securities Purchase Agreement, the "AMSAN ACQUISITION CONSIDERATION").
In connection with the foregoing, the Borrower has requested
that the Lenders extend credit in the form of (a)(i) Initial Term Loans on the
Effective Date in an aggregate principal amount not in excess of $100,000,000
and (ii) Delayed Draw Term Loans on the Delayed Draw Funding Date in an
aggregate principal amount not in excess of $130,000,000 and (b) Revolving
Loans and Swingline Loans at any time and from time to time during the
Revolving Availability Period, in an aggregate principal amount at any time
outstanding not in excess of $100,000,000, including Letters of Credit in an
aggregate stated amount at any time outstanding not in excess of $40,000,000.
The Lenders are willing to extend such credit to the Borrower
and the Issuing Banks are willing to issue Letters of Credit for the account of
the Borrower on the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"ADDITIONAL SENIOR SUBORDINATED NOTES" means any senior
subordinated notes issued by the Borrower after the Effective Date and the
Indebtedness represented thereby; PROVIDED that (a) such senior subordinated
notes (i) shall not provide for guarantors, obligors or security in addition to
those which apply to the Senior Subordinated Notes, (ii) shall not have a
maturity date that is earlier than the date that is 180 days after the Term
Loan Maturity Date or provide for any amortization, sinking fund or other
scheduled payments (other than regularly scheduled interest payments) prior to
the date that is 180 days after the Term Loan Maturity Date and (iii) shall be
subordinated to the Obligations on terms not less favorable to the Lenders than
the terms in respect of the Senior Subordinated Notes and (b) all other terms
(excluding interest rates and redemption premiums) of such senior subordinated
notes shall not be materially less favorable to the Lenders than those existing
with respect to the Senior Subordinated Notes.
"ADJUSTED LIBO RATE" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum equal to (a) the
LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve
Rate.
"ADMINISTRATIVE AGENT" means JPMorgan Chase Bank, N.A., in its
capacity as administrative agent for the Lenders hereunder.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"AFFILIATE" means, 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" means the Administrative Agent and the Syndication
Agent.
"AGREEMENT" means this Credit Agreement, as the same may be
renewed, extended, modified, supplemented or amended from time to time.
"ALTERNATE BASE RATE" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change
in the Alternate Base Rate due to a change in the Prime Rate or the Federal
Funds Effective Rate shall be effective from and
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including the effective date of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively.
"AMSAN" has the meaning assigned to such term in the preamble
to this Agreement.
"AMSAN ACQUISITION" has the meaning assigned to such term in
the preamble to this Agreement.
"AMSAN ACQUISITION CLOSING DATE" means the date on the which
the AmSan Acquisition is consummated pursuant to the terms of the Securities
Purchase Agreement.
"AMSAN ACQUISITION CONSIDERATION" has the meaning assigned to
such term in the preamble to this Agreement.
"APPLICABLE PERCENTAGE" means, with respect to any Revolving
Lender, the percentage of the total Revolving Commitments represented by such
Lender's Revolving Commitment. If the Revolving Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the
Revolving Commitments most recently in effect, giving effect to any
assignments.
"APPLICABLE RATE" means, for any day (a) with respect to any
ABR Loan or Eurodollar Loan that is a Term Loan, the applicable rate per annum
set forth below under the caption "Term Loan ABR Spread" or "Term Loan
Eurodollar Spread", as the case may be, and (b) with respect to any ABR Loan or
Eurodollar Loan that is a Revolving Loan, (i) the applicable rate per annum set
forth below under the caption "Revolving Loan ABR Spread" or "Revolving Loan
Eurodollar Spread", as the case may be, and (ii) with respect to commitment
fees payable pursuant to Section 2.12, the applicable rate per annum set forth
below under the caption "Commitment Fee", and based upon the Net Leverage
Ratio, in each case, as of the most recent determination date:
APPLICABLE RATES FOR TERM LOANS
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TERM LOAN TERM LOAN
NET LEVERAGE RATIO: ABR SPREAD EURODOLLAR SPREAD
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CATEGORY 1
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Ratio is greater than 2.75 to
1.00 0.75% 1.75%
CATEGORY 2
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Ratio is less than or equal to
2.75 to 1.00 0.50% 1.50%
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APPLICABLE RATES FOR REVOLVING LOANS
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REVOLVING LOAN REVOLVING LOAN
NET LEVERAGE RATIO: ABR SPREAD EURODOLLAR SPREAD COMMITMENT FEE
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CATEGORY 1
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Ratio is greater than 3.00 to
1.00 0.75% 1.75% 0.375%
CATEGORY 2
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Ratio is less than or equal to
3.00 to 1.00 but greater than
2.25 to 1.00 0.50% 1.50% 0.300%
CATEGORY 3
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Ratio is less than or equal to
2.25 to 1.00 0.25% 1.25% 0.250%
For purposes of the foregoing, (i) the Net Leverage Ratio shall
be determined as of the end of each fiscal quarter of the Borrower's fiscal
year based upon the Borrower's consolidated financial statements delivered
pursuant to Section 5.01(a) or (b) or, in the case of a fiscal quarter of any
fiscal year, a Pricing Certificate, and (ii) each change in the Applicable Rate
resulting from a change in the Net Leverage Ratio shall be effective during the
period commencing on and including the date that is three Business Days after
the date of delivery to the Administrative Agent of such consolidated financial
statements or Pricing Certificate indicating such change and ending on the date
immediately preceding the effective date of the next such change; PROVIDED that
the Net Leverage Ratio shall be deemed to be in Category 1, at the option of
the Administrative Agent or at the request of the Required Lenders, (A) at any
time that an Event of Default has occurred and is continuing or (B) if the
Borrower fails to deliver the consolidated financial statements required to be
delivered by it pursuant to Section 5.01(a) or (b), during the period from the
expiration of the time for delivery thereof until the third Business Day after
such consolidated financial statements are delivered.
"APPROVED FUND" has the meaning assigned to such term in
Section 9.04.
"ASSIGNMENT AND ASSUMPTION" means an assignment and assumption
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative
Agent.
"BOARD" means the Board of Governors of the Federal Reserve
System of the United States of America.
"BORROWER" means Interline Brands, Inc., a New Jersey
corporation.
"BORROWING" means (a) Loans of the same Class and Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans,
as to which a single Interest Period is in effect, or (b) a Swingline Loan.
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"BORROWING REQUEST" means a request by the Borrower for a
Borrowing in accordance with Section 2.03 and substantially in the form of
Exhibit B, or such other form as shall be approved by the Administrative Agent.
"BUSINESS DAY" means 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
Eurodollar Loan, the term "BUSINESS DAY" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"BUYERS ACCESS" means Buyers Access LLC, a Delaware limited
liability company.
"CAPITAL EXPENDITURES" means, for any period, (a) the additions
to property, plant and equipment and other capital expenditures of the Borrower
and the Subsidiaries, on a consolidated basis, that are (or would be) set forth
in a consolidated statement of cash flows of the Borrower for such period
prepared in accordance with GAAP (including expenditures for maintenance and
repairs which should be capitalized in accordance with GAAP) and (b) Capital
Lease Obligations incurred by the Borrower and the Subsidiaries, on a
consolidated basis, during such period; PROVIDED that Capital Expenditures
shall not include (i) expenditures of 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 or repair assets or properties useful in
the business of the Borrower or (ii) investments that constitute a Permitted
Acquisition pursuant to clause (a) of Section 6.04.
"CAPITAL LEASE OBLIGATIONS" of any Person means 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 the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CERTIFICATE OF DESIGNATION" means the Wilmar Industries, Inc.
Certificate of Designation of Senior Preferred Stock dated May 16, 2000, as in
effect on the date hereof.
"CHANGE IN CONTROL" means (a) the failure by Holdings to own,
directly or indirectly, beneficially and of record, Equity Interests in the
Borrower representing 100% of each of the aggregate voting power and aggregate
equity value represented by the issued and outstanding Equity Interests in the
Borrower; (b) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the
Securities Exchange Act of 1934, as amended, and the rules of the SEC
thereunder as in effect on the date hereof), other than the Permitted
Investors, of Equity Interests representing more than 50% of the aggregate
voting power or aggregate equity
6
value represented by the issued and outstanding Equity Interests in Holdings,
which represents a greater percentage of the aggregate ordinary voting power or
the aggregate equity value, as applicable, represented by the issued and
outstanding Equity Interests in Holdings than the percentage of the aggregate
ordinary voting power or the aggregate equity value, as applicable, owned,
directly or indirectly, beneficially and of record, by the Sponsors; (c)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of Holdings by Persons who were neither (i) nominated by the board of
directors of Holdings nor (ii) appointed by directors so nominated; (d) the
acquisition of direct or indirect Control of Holdings by any Person or group;
or (e) the occurrence of a "Change of Control", as defined in the Senior
Subordinated Debt Documents or the terms of any Additional Senior Subordinated
Notes.
"CHANGE IN LAW" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement 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 request, guideline or directive (whether or not having the force of law) of
any Governmental Authority made or issued after the date of this Agreement.
"CLASS", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans, Term Loans, Incremental Extensions of Credit or Swingline
Loans and, when used in reference to any Commitment, refers to whether such
Commitment is a Revolving Commitment or any Commitment in respect of an
Incremental Extension of Credit.
"CLO" has the meaning assigned to such term in Section 9.04.
"CODE" means the Internal Revenue Code of 1986, as amended from
time to time.
"COLLATERAL" means any and all "Collateral", as defined in any
applicable Security Document.
"COLLATERAL AGENT" means the Administrative Agent or other
Person acting as collateral agent for the Secured Parties (as defined in the
Collateral Agreement) under the Security Documents.
"COLLATERAL AGREEMENT" means the Guarantee and Collateral
Agreement among Holdings, the Borrower, the Subsidiary Loan Parties and the
Collateral Agent, substantially in the form of Exhibit E.
"COLLATERAL AND GUARANTEE REQUIREMENT" means the requirement
that:
(a) the Administrative Agent shall have received from each Loan
Party either (i) a counterpart of the Collateral Agreement duly
executed and delivered on behalf of such Loan Party or (ii) in the case
of any Person that becomes a Loan
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Party after the Effective Date, a supplement to the Collateral
Agreement, substantially in the form specified therein, duly executed
and delivered on behalf of such Loan Party;
(b) all outstanding Equity Interests of (i) the Borrower and
(ii) each Subsidiary owned by or on behalf of any Loan Party shall have
been pledged pursuant to the Collateral Agreement (except that the Loan
Parties shall not be required to pledge (i) more than 65% of the
outstanding voting Equity Interests of any Foreign Subsidiary that is
not a Loan Party but is owned directly by a Loan Party, (ii) any Equity
Interests of a Foreign Subsidiary that is not owned directly by a Loan
Party and (iii) any Equity Interests in a Joint Venture or Glenwood
Acquisition LLC), and the Administrative Agent shall have received
certificates or other instruments representing all such Equity
Interests, together with undated stock powers or other instruments of
transfer with respect thereto endorsed in blank;
(c) all Indebtedness of Holdings, the Borrower and each
Subsidiary that is owing to any Loan Party shall be evidenced by a
promissory note and shall have been pledged pursuant to the Collateral
Agreement and the Administrative Agent shall have received all such
promissory notes, together with undated instruments of transfer with
respect thereto endorsed in blank;
(d) all documents and instruments, including Uniform Commercial
Code financing statements, required by law or reasonably requested by
the Administrative Agent to be filed, registered or recorded to create
the Liens intended to be created by the Collateral Agreement and
perfect such Liens to the extent required by, and with the priority
required by, the Collateral Agreement, shall have been filed,
registered or recorded or delivered to the Administrative Agent for
filing, registration or recording;
(e) the Administrative Agent shall have received (i)
counterparts of a Mortgage with respect to each Mortgaged Property duly
executed and delivered by the record owner of such Mortgaged Property,
(ii) a policy or policies of title insurance issued by a nationally
recognized title insurance company insuring the Lien of each such
Mortgage as a valid first-priority Lien on the Mortgaged Property
described therein, free of any other Liens except as expressly
permitted by Section 6.02, together with such endorsements, coinsurance
and reinsurance as the Administrative Agent may reasonably request, and
(iii) such surveys, abstracts, appraisals, legal opinions and other
documents as the Administrative Agent may reasonably request with
respect to any such Mortgage or Mortgaged Property; and
(f) each Loan Party shall have obtained all consents and
approvals required to be obtained by it in connection with the
execution and delivery of all Security Documents to which it is a
party, the performance of its obligations thereunder and the granting
by it of the Liens thereunder.
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"COMMITMENT" means a Revolving Commitment, a Term Loan
Commitment or any commitment in respect of an Incremental Extension of Credit
or any combination thereof (as the context requires).
"CONSOLIDATED CASH INTEREST EXPENSE" means, for any period, the
excess of (a) the sum of (i) the interest expense (including imputed interest
expense in respect of Capital Lease Obligations) of the Borrower and the
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP, (ii) any interest accrued during such period in respect of
Indebtedness of the Borrower or any Subsidiary that is required to be
capitalized rather than included in consolidated interest expense for such
period in accordance with GAAP, plus (iii) any cash payments made during such
period in respect of obligations referred to in clause (b)(ii) below that were
amortized or accrued in a previous period, minus (b) the sum of (i) to the
extent included in such consolidated interest expense for such period, non-cash
amounts attributable to amortization of financing costs paid in a previous
period, plus (ii) to the extent included in such consolidated interest expense
for such period, non-cash amounts attributable to amortization of debt
discounts or accrued interest payable in kind for such period plus (iii)
interest income for such period.
"CONSOLIDATED EBITDA" means, for any period, Consolidated Net
Income for such period plus (a) without duplication and to the extent deducted
in determining such Consolidated Net Income, the sum of (i) consolidated
interest expense of the Borrower and the Subsidiaries for such period, (ii)
consolidated income tax expense of the Borrower and the Subsidiaries for such
period (including any income tax expense of Holdings for such period to the
extent the Borrower has made payment to or for the account of Holdings in
respect thereof), (iii) all amounts attributable to depreciation and
amortization for such period, (iv) amortization or write-down of intangibles
(including goodwill), (v) costs and expenses paid by the Borrower in connection
with the Transactions in an aggregate amount not to exceed $15,000,000 in the
fiscal year ending December 31, 2006, (vi) non-recurring severance charges in
respect of Permitted Acquisitions in an aggregate amount not to exceed
$1,000,000 in any period of four consecutive fiscal quarters and (vii) any
non-cash charges of the Borrower and the Subsidiaries for such period and minus
(b) without duplication and to the extent included in determining such
Consolidated Net Income, (i) any extraordinary gains of the Borrower and the
Subsidiaries for such period, (ii) any cash disbursements during such period
that relate to non-cash charges or losses added to Consolidated Net Income
pursuant to clause (a)(vii) of this paragraph in any prior period and (iii)
write-up of intangibles (including goodwill), all determined on a consolidated
basis in accordance with GAAP. For purposes of calculating Consolidated EBITDA
for any period of four consecutive fiscal quarters for testing compliance with
Sections 6.12 and 6.13 and for determining the Applicable Rate and compliance
with Section 2.11(d), if the Borrower or any consolidated Subsidiary has made
any Permitted Acquisition during such period of four consecutive fiscal
quarters ending on the date on which the most recent fiscal quarter ended,
Consolidated EBITDA for the relevant period shall be calculated after giving
pro forma effect thereto (and any related incurrence or repayment of
Indebtedness, with any new Indebtedness being deemed to be amortized over the
applicable testing period in accordance with its terms) as if such Permitted
Acquisition had occurred on the first day
9
of the four consecutive fiscal quarter period for which such calculation is
being made (including cost savings (i) that would be permitted to be reflected
in pro forma financial information complying with the requirements of GAAP and
Article XI of Regulation S-X under the Securities Act (and the interpretations
of the SEC thereunder) and (ii) cost savings reasonably expected by a Financial
Officer of the Borrower to be realized within 12 months of the consummation of
the applicable Permitted Acquisition).
"CONSOLIDATED NET INCOME" means, for any period, the net income
or loss of the Borrower and the Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP (adjusted to reflect any charge, tax
or expense incurred or accrued by Holdings during such period as though such
charge, tax or expense had been incurred by the Borrower, to the extent that
the Borrower has made or is permitted under the Loan Documents to make any
payment to or for the account of Holdings in respect thereof); PROVIDED that
there shall be excluded (a) the income of any Person (other than a Loan Party)
in which any other Person (other than the Borrower or any Subsidiary or any
director holding qualifying shares in compliance with applicable law) owns an
Equity Interest, except to the extent of the amount of dividends or other cash
distributions actually paid to the Borrower or any of the Subsidiaries during
such period, and (b) the income or loss of any Person accrued prior to the date
it becomes a Subsidiary or is merged into or consolidated with the Borrower or
any Subsidiary or the date that such Person's assets are acquired by the
Borrower or any Subsidiary.
"CONTROL" means 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 ability to exercise voting power, by contract or
otherwise. "CONTROLLING" and "CONTROLLED" have meanings correlative thereto.
"DEBT TENDER OFFER" means the tender offer and consent
solicitation in respect of the Existing Senior Subordinated Notes pursuant to
which the Borrower will have (i) repurchased Existing Senior Subordinated Notes
constituting at least a majority of the aggregate principal amount of the
Existing Senior Subordinated Notes outstanding and (ii) amended the Existing
Senior Subordinated Notes Indenture to eliminate all significant covenants and
events of default, in each case for consideration and on terms satisfactory to
the Agents.
"DEFAULT" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless
cured or waived, become an Event of Default.
"DELAYED DRAW EXPIRATION DATE" means the earliest to occur of
(a) July 15, 2006, (b) the date on which the Securities Purchase Agreement is
terminated in accordance with its terms and (c) the date on which the Delayed
Draw Term Loan Commitments shall be terminated pursuant to this Agreement.
"DELAYED DRAW FUNDING DATE" means the date on which the
conditions specified in Section 4.02 are satisfied (or waived in accordance
with Section 9.02).
10
"DELAYED DRAW TERM LOAN" means a Loan made pursuant to clause
(a)(ii) of Section 2.01.
"DELAYED DRAW TERM LOAN COMMITMENT" means, with respect to each
Lender, the commitment, if any, of such Lender to make a Delayed Draw Term Loan
hereunder on the Delayed Draw Funding Date, expressed as an amount representing
the maximum principal amount of the Delayed Draw Term Loan to be made by such
Lender hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.04. The
initial amount of each Lender's Delayed Draw Term Loan Commitment is set forth
on Schedule 2.01, or in the Assignment and Assumption pursuant to which such
Lender shall have assumed its Delayed Draw Term Loan Commitment, as applicable.
The initial aggregate amount of the Lenders' Delayed Draw Term Loan Commitments
is $130,000,000.
"DISCLOSED MATTERS" means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 3.06.
"DOLLARS" or "$" refers to lawful money of the United States of
America.
"EFFECTIVE DATE" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"ENVIRONMENTAL LAWS" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, Release or threatened Release of any Hazardous
Material or health and safety matters.
"ENVIRONMENTAL LIABILITY" means all liabilities, obligations,
damages, losses, claims, actions, suits, judgments, orders, fines, penalties,
fees, expenses and costs, (including administrative oversight costs, natural
resource damages and remediation costs), whether contingent or otherwise,
arising out of or relating to: (a) compliance or non-compliance with any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the Release or threatened Release of any Hazardous Materials or
(e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.
"EQUITY INTERESTS" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
11
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with the Borrower, 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" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (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; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is expected to
be, insolvent or in reorganization, within the meaning of Title IV of ERISA; or
(h) the existence of any event or condition that could reasonably be expected
to constitute grounds under ERISA for the termination of, or the appointment of
a trustee to administer, any Plan.
"EURODOLLAR", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Adjusted LIBO Rate.
"EVENT OF DEFAULT" has the meaning assigned to such term in
Article VII.
"EXCESS CASH FLOW" means, for any fiscal year, the sum (without
duplication) of:
(a) the Consolidated Net Income for such fiscal year, adjusted
to exclude any gains or losses attributable to Prepayment Events; plus
(b) the depreciation, amortization and other non-cash charges
or losses deducted in determining Consolidated Net Income for such
fiscal year; plus
(c) the amount, if any, by which Net Working Capital decreased
during such fiscal year; minus
(d) the sum of (i) any non-cash gains included in determining
such consolidated net income (or loss) for such fiscal year plus (ii)
the amount, if any, by which Net Working Capital increased during such
fiscal year; minus
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(e) the sum of (i) Capital Expenditures for such fiscal year
(except to the extent (A) attributable to the incurrence of Capital
Lease Obligations, (B) financed by incurring Long-Term Indebtedness or
(C) made pursuant to Section 6.14(a)(ii) or Section 6.14(c)) plus (ii)
any consideration paid during such fiscal year to make Permitted
Acquisitions or other capital investments to the extent paid using cash
generated in the ordinary course of the Borrower's business; minus
(f) the aggregate principal amount of Long-Term Indebtedness
repaid or prepaid by the Borrower and the Subsidiaries, on a
consolidated basis, during such fiscal year, excluding (i) Indebtedness
in respect of Revolving Loans and Letters of Credit (unless and to the
extent that there is a corresponding reduction in the Revolving
Commitments), (ii) Term Loans prepaid pursuant to Section 2.11(a), (c)
or (d), and (iii) repayments or prepayments of Long-Term Indebtedness
financed by incurring other Long-Term Indebtedness.
"EXCLUDED TAXES" means, 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) net
income or franchise taxes imposed by the United States of America, a state,
locality or other political subdivision thereof or by any jurisdiction (or
political subdivision thereof) under the laws of which such recipient is
subject to such taxes as a result of a present or former connection to such
jurisdiction, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction described in
clause (a) above and (c) in the case of a Foreign Lender (other than an
assignee pursuant to a request by the Borrower under Section 2.19(b)), any
withholding tax that (i) is in effect and would apply to amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office), except to the extent that such
Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to any withholding tax pursuant to
Section 2.17(a), or (ii) is attributable to such Foreign Lender's failure to
comply with Section 2.17(e).
"EXISTING CREDIT AGREEMENT" has the meaning assigned to such
term in the preamble to this Agreement.
"EXISTING LETTER OF CREDIT" means each letter of credit
previously issued for the account of, or the reimbursement and other
obligations in respect of which are guaranteed by, the Borrower or a Subsidiary
pursuant to the Existing Credit Agreement that is (a) outstanding on the
Effective Date and (b) listed on Schedule 2.05.
"EXISTING PREFERRED STOCK" means preferred stock of the
Borrower issued pursuant to the Certificate of Designation.
"EXISTING SENIOR SUBORDINATED NOTES" means the 11 1/2% senior
subordinated notes due 2011 issued by the Borrower and the Indebtedness
represented thereby.
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"EXISTING SENIOR SUBORDINATED NOTES INDENTURE" means the
Indenture dated as of May 23, 2003, among the Borrower, the Subsidiaries listed
therein and The Bank of New York, as trustee, in respect of the Existing Senior
Subordinated Notes.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day that is a Business Day, the
average of the quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"FINANCIAL OFFICER" means the chief financial officer,
principal accounting officer, treasurer or controller of the Borrower.
"FOREIGN LENDER" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"FOREIGN SUBSIDIARY" means any Subsidiary that is organized
under the laws of a jurisdiction other than the United States of America or any
State thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the
United States of America, as in effect from time to time.
"GOVERNMENTAL AUTHORITY" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"GUARANTEE" of or by any Person (the "GUARANTOR") means 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,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) 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, (c)
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 or (d) as an account party
or applicant in respect of any letter of credit or letter of guaranty issued to
support such Indebtedness or obligation; PROVIDED, that the term
14
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.
"HAZARDOUS MATERIALS" means (a) petroleum products and
byproducts, asbestos, urea formaldehyde foam insulation, polychlorinated
biphenyls, radon gas, chlorofluorocarbons and all other ozone-depleting
substances; or (b) any chemical, material, substance, waste, pollutant or
contaminant that is prohibited, limited or regulated by or pursuant to any
Environmental Law.
"HOLDINGS" means Interline Brands, Inc., a Delaware
corporation.
"INCREMENTAL EXTENSIONS OF CREDIT" has the meaning assigned to
such term in Section 2.20.
"INCREMENTAL FACILITY AMENDMENT" has the meaning assigned to
such term in Section 2.20.
"INCREMENTAL FACILITY CLOSING DATE" has the meaning assigned to
such term in Section 2.20.
"INDEBTEDNESS" of any Person means, 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 upon which interest charges are customarily paid,
(d) all obligations of such Person under conditional sale or other title
retention agreements relating to property acquired by such Person, (e) all
obligations of such Person in respect of the deferred purchase price of
property or services (excluding current accounts payable incurred in the
ordinary course of business), (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (g)
all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person, (i) all obligations, contingent or otherwise, of
such Person as an account party or applicant in respect of letters of credit
and letters of guaranty and (j) all obligations, contingent or otherwise, of
such Person in respect of bankers' acceptances. The Indebtedness of any Person
shall include the Indebtedness of any other entity (including any partnership
in which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor. For the avoidance
of doubt, "Indebtedness" shall not include post-closing payment adjustments or
earn-outs to which the seller in a Permitted Acquisition may be entitled
(except to the extent provided under clause (c) of the definition of "Pro Forma
Basis").
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INFORMATION MEMORANDUM" means the Confidential Information
Memorandum dated June 2006, relating to Holdings, the Borrower and the
Transactions.
15
"INITIAL TERM LOAN" means a Loan made pursuant to clause (a)(i)
of Section 2.01.
"INITIAL TERM LOAN COMMITMENT" means, with respect to each
Lender, the commitment, if any, of such Lender to make an Initial Term Loan
hereunder on the Effective Date, expressed as an amount representing the
maximum principal amount of the Initial Term Loan to be made by such Lender
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.08 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender's Initial Term Loan Commitment is set forth on Schedule 2.01, or
in the Assignment and Assumption pursuant to which such Lender shall have
assumed its Initial Term Loan Commitment, as applicable. The initial aggregate
amount of the Lenders' Initial Term Loan Commitments is $100,000,000.
"INTEREST ELECTION REQUEST" means a request by the Borrower to
convert or continue a Revolving Borrowing or Term Borrowing in accordance with
Section 2.07 and substantially in the form of Exhibit C hereto, or such other
form as shall be approved by the Administrative Agent.
"INTEREST PAYMENT DATE" means (a) with respect to any ABR Loan
(including a Swingline Loan), the last Business Day of each March, June,
September and December and (b) with respect to any Eurodollar 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 Eurodollar Borrowing with an Interest Period of more
than three months' duration, each day prior to the last day of such Interest
Period that occurs at intervals of three months' duration after the first day
of such Interest Period.
"INTEREST PERIOD" means, with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on
the numerically corresponding day in the calendar month that is one, two, three
or six months (or if acceptable to each Lender participating in such Borrowing,
nine or twelve months) thereafter, as the Borrower may elect; PROVIDED, that
(a) 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
and (b) any Interest Period that commences on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period. For purposes
hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
"ISSUING BANK" means, as the context may require, (a) JPMorgan
Chase Bank, N.A., with respect to Letters of Credit issued by it, (b) any other
Revolving Lender that becomes an Issuing Bank pursuant to Section 2.05(i), with
respect to Letters of Credit issued by it, (c) any Revolving Lender that has
issued an Existing Letter of Credit, and in each case, its successors in such
capacity as provided in Section 2.05(i) and
16
(d) each of Wachovia Bank, National Association and Bank of America, N.A., in
each case with respect to Letters of Credit issued by it and only for so long
as it is a Revolving Lender. 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.
"JOINT VENTURE" means (a) Buyers Access and (b) any joint
venture arrangement (whether structured as a corporation, limited liability
company, partnership or other entity or arrangement), which is not a Subsidiary
but in which the Borrower or any Subsidiary owns or controls any Equity
Interests.
"LC DISBURSEMENT" means a payment made by an Issuing Bank
pursuant to a Letter of Credit.
"LC EXPOSURE" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by
or on behalf of the Borrower at such time. The LC Exposure of any Revolving
Lender at any time shall be its Applicable Percentage of the total LC Exposure
at such time.
"LENDERS" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Assignment
and Assumption or an Incremental Facility Amendment, other than any such Person
that ceases to be a party hereto pursuant to an Assignment and Assumption.
Unless the context otherwise requires, the term "Lenders" includes the
Swingline Lender.
"LETTER OF CREDIT" means any letter of credit (including each
Existing Letter of Credit) issued pursuant to this Agreement.
"LIBO RATE" means, with respect to any Eurodollar Borrowing for
any Interest Period, the rate per annum determined by the Administrative Agent
at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, by reference to the British Bankers'
Association Interest Settlement Rates (as set forth by any service selected by
the Administrative Agent that has been nominated by the British Bankers'
Association as an authorized information vendor for the purpose of displaying
such rates) as the rate for dollar deposits with a maturity comparable to such
Interest Period. In the event that such rate is not available at such time for
any reason, then the "LIBO RATE" with respect to such Eurodollar Borrowing for
such Interest Period shall be the rate at which dollar deposits of $5,000,000
and for a maturity comparable to such Interest Period are offered by the
principal London office of the bank serving as the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"LIEN" means, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, hypothecation, encumbrance, charge or security interest
in, on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital
17
lease or title retention agreement (or any financing lease having substantially
the same economic effect as any of the foregoing) relating to such asset and
(c) in the case of securities, any purchase option, call or similar right of a
third party with respect to such securities.
"LOAN DOCUMENTS" means this Agreement, the promissory notes, if
any, executed and delivered pursuant to Section 2.09(e), any Incremental
Facility Amendment, the Collateral Agreement and the other Security Documents.
"LOAN PARTIES" means Holdings, the Borrower and the Subsidiary
Loan Parties.
"LOANS" means the loans made by the Lenders to the Borrower
pursuant to this Agreement or an Incremental Facility Amendment.
"LONG-TERM INDEBTEDNESS" means any Indebtedness that, in
accordance with GAAP, constitutes (or, when incurred, constituted) a long-term
liability.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the condition (financial or otherwise), assets, operations or business of
Holdings, the Borrower and the Subsidiaries taken as a whole, (b) the ability
of any Loan Party to perform any of its obligations under any Loan Document or
(c) the rights of or benefits available to the Lenders under any Loan Document.
"MATERIAL INDEBTEDNESS" means Indebtedness (other than the
Loans and Letters of Credit), or obligations in respect of one or more Swap
Agreements, of any one or more of the Borrower and the Subsidiaries in an
aggregate principal amount exceeding $15,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the
Borrower or any Subsidiary in respect of any Swap Agreement at any time shall
be the maximum aggregate amount (giving effect to any netting agreements) that
the Borrower or such Subsidiary would be required to pay if such Swap Agreement
were terminated at such time.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MORTGAGE" means a mortgage, deed of trust, assignment of
leases and rents, leasehold mortgage or other security document granting a Lien
on any Mortgaged Property to secure the Obligations. Each Mortgage shall be
satisfactory in form and substance to the Collateral Agent.
"MORTGAGED PROPERTY" means, initially, each parcel of real
property and the improvements thereon owned by a Loan Party and identified on
Schedule 1.01(a), and includes each other parcel of real property and
improvements thereon with respect to which a Mortgage is granted pursuant to
Section 5.12 or 5.13.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
18
"NET LEVERAGE RATIO" means, on any date, the ratio of (a) Net
Total Indebtedness as of such date to (b) Consolidated EBITDA for the period of
four consecutive fiscal quarters of the Borrower ended on such date (or, if
such date is not the last day of a fiscal quarter, ended on the last day of the
fiscal quarter of the Borrower most recently ended prior to such date).
"NET PROCEEDS" means, with respect to any event (a) the cash
proceeds received in respect of such event including (i) any cash received in
respect of any non-cash proceeds, but only as and when received, (ii) in the
case of a casualty, insurance proceeds, and (iii) in the case of a condemnation
or similar event, condemnation awards and similar payments, net of (b) the sum
of (i) all reasonable fees and out-of-pocket expenses paid by Holdings, the
Borrower and the Subsidiaries to third parties (other than Affiliates) in
connection with such event, (ii) in the case of a sale, transfer or other
disposition of an asset (including pursuant to a sale and leaseback transaction
or a casualty or a condemnation or similar proceeding), the amount of all
payments required to be made by Holdings, the Borrower and the Subsidiaries as
a result of such event to repay Indebtedness (other than Loans) secured by such
asset or otherwise subject to mandatory prepayment as a result of such event,
and (iii) the amount of all taxes paid (or reasonably estimated to be payable)
by Holdings, the Borrower and the Subsidiaries, and the amount of any reserves
established by Holdings, the Borrower and the Subsidiaries to fund contingent
liabilities reasonably estimated to be payable, in each case during the year
that such event occurred or the next succeeding year and that are directly
attributable to such event (as determined reasonably and in good faith by the
chief financial officer of the Borrower).
"NET SALES" means, for any period, the net sales of Holdings,
the Borrower and the Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP.
"NET SENIOR SECURED LEVERAGE RATIO" means, on any date, the
ratio of (a) Net Total Secured Senior Indebtedness as of such date to (b)
Consolidated EBITDA for the period of four consecutive fiscal quarters of the
Borrower ended on such date (or, if such date is not the last day of a fiscal
quarter, ended on the last day of the fiscal quarter of the Borrower most
recently ended prior to such date).
"NET TOTAL INDEBTEDNESS" means, as of any date, the sum of (a)
the aggregate principal amount of Indebtedness of the Borrower and the
Subsidiaries outstanding as of such date, in the amount that would be reflected
on a balance sheet prepared as of such date on a consolidated basis in
accordance with GAAP, plus (b) the aggregate principal amount of Indebtedness
of the Borrower and the Subsidiaries outstanding as of such date that is not
required to be reflected on a balance sheet in accordance with GAAP, determined
on a consolidated basis; PROVIDED that, for purposes of clause (b) above, the
term "Indebtedness" shall not include (i) contingent obligations of the
Borrower or any Subsidiary as an account party in respect of any letter of
credit or letter of guaranty unless such letter of credit or letter of guaranty
supports an obligation that constitutes Indebtedness and (ii) Indebtedness
permitted by clause (xi) of Section 6.01(a) to the extent the sole recourse
with respect to such Indebtedness is to the
19
Borrower's Equity Interests in Buyers Access, minus (c) the aggregate amount of
cash and Permitted Investments of Holdings, the Borrower and the Subsidiaries
as of such date, PROVIDED that the aggregate amount of cash and Permitted
Investments permitted to be included in this clause (c) shall not exceed
$25,000,000.
"NET TOTAL SENIOR SECURED INDEBTEDNESS" means, as of any date,
(a) Net Total Indebtedness as of such date minus (b) without duplication, the
portion of Net Total Indebtedness as of such date represented by (i)
Indebtedness that is expressly subordinated in right of payment to the
Obligations and (ii) Indebtedness that is not secured by any Lien.
"NET WORKING CAPITAL" means, at any date, (a) the consolidated
current assets of the Borrower and the Subsidiaries, as of such date (excluding
cash and Permitted Investments) minus (b) the consolidated current liabilities
of the Borrower and the Subsidiaries as of such date (excluding current
liabilities in respect of Indebtedness). Net Working Capital at any date may be
a positive or negative number. Net Working Capital increases when it becomes
more positive or less negative and decreases when it becomes less positive or
more negative.
"NON-CONSENTING LENDER" has the meaning assigned to such term
in Section 9.02(b).
"OBLIGATIONS" has the meaning assigned to such term in the
Collateral Agreement.
"OTHER TAXES" means any and all present or future recording,
stamp, documentary, excise, transfer, sales, property or similar taxes, charges
or levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"PARTICIPANT" has the meaning set forth in Section 9.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"PERFECTION CERTIFICATE" means a certificate in the form of
Exhibit F or any other form approved by the Collateral Agent.
"PERMITTED ACQUISITION" means any acquisition by the Borrower
or a wholly owned Subsidiary Loan Party of all the outstanding Equity Interests
in, all or substantially all the assets of, or all or substantially all the
assets constituting a division or line of business of, a Person if (a) such
acquisition was not preceded by, or consummated pursuant to, a hostile offer,
(b) no Default has occurred and is continuing or would result therefrom, (c)
all transactions related thereto are consummated in accordance with applicable
laws, (d) all actions required to be taken with respect to such acquired or
newly formed Subsidiary or assets under Sections 5.12 and 5.13 shall have been
taken, (e) on a Pro Forma Basis, as of the last day of the most recently ended
fiscal quarter of the Borrower for which financial statements are available,
(i) the Borrower is in
20
compliance with the covenants contained in Sections 6.12 and 6.13 and (ii) the
Net Senior Leverage Ratio is less than 2.50 to 1.00, (f) the business of such
Person or such assets, as the case may be, constitute a business permitted by
Section 6.03(b), and (g) the Borrower has delivered to the Administrative Agent
an officers' certificate to the effect set forth in clauses (a), (b), (c), (d),
(e) and (f) above, together with all relevant financial information for the
Person or assets to be acquired.
"PERMITTED ENCUMBRANCES" means:
(a) Liens imposed by law for taxes, fees, assessments and other
governmental charges that are not yet due or are being contested in
compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 45 days or are being contested in compliance with
Section 5.05;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VII;
(f) easements, zoning restrictions, rights-of-way, minor
defects or irregularities of title and similar encumbrances on real
property imposed by law or arising in the ordinary course of business
that do not secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with the
ordinary conduct of business of the Borrower or any Subsidiary; and
(g) landlords' and lessors' and other like Liens in respect of
rent not in default;
PROVIDED that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"PERMITTED INVESTMENTS" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and
21
credit of the United States of America), in each case maturing within
one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, a rating of at least A1 by S&P or P-1 by Moody's;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (c) above;
(e) money market funds that (i) comply with the criteria set
forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as
amended, (ii) are rated AAA by S&P and Aaa by Moody's and (iii) have
portfolio assets of at least $5,000,000,000; and
(f) investments in securities with maturities of six months 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 Moody's.
"PERMITTED INVESTORS" means Parthenon Capital, Inc., Sterling
Investment Partners L.P., Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxx
and any Affiliate of the foregoing.
"PERSON" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower
has any liability 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.
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"PREPAYMENT EVENT" means:
(a) any sale, transfer or other disposition (including pursuant
to a sale and leaseback transaction) of any property or asset of the
Borrower or any Subsidiary resulting in Net Proceeds of $5,000,000 or
more, other than dispositions described in clauses (a), (b), (c), (d),
(e) and (g) of Section 6.05; or
(b) any casualty or other insured damage to, or any taking
under power of eminent domain or by condemnation or similar proceeding
of, any property or asset of the Borrower or any Subsidiary, with a
fair value immediately prior to such event equal to or greater than
$5,000,000; or
(c) the incurrence by the Borrower or any Subsidiary of any
Indebtedness, other than Indebtedness permitted under Section 6.01.
"PRICING CERTIFICATE" means a certificate signed by a Financial
Officer, certifying the Net Leverage Ratio for any period of four fiscal
quarters for which the Net Leverage Ratio is calculated.
"PRIME RATE" means the rate of interest per annum determined
from time to time by the Administrative Agent as its prime rate in effect for
dollars at its principal office in New York City; each change in the Prime Rate
shall be effective from and including the date such change is publicly
announced as being effective.
"PRO FORMA BASIS" means, with respect to the calculation of any
financial ratio for any period of four consecutive fiscal quarters (the
"REFERENCE PERIOD") pursuant to Section 2.20, Section 6.04(a) or Section
6.08(a)(viii):
(a) in making any determination of Consolidated EBITDA, pro
forma effect shall be given to any Permitted Acquisition that occurred
during such Reference Period or thereafter and through and including
the date of consummation of the event requiring the calculation of such
financial ratio, as if such Permitted Acquisition occurred on the first
day of such Reference Period;
(b) in making any determination of Net Total Indebtedness, Net
Total Senior Secured Indebtedness or Consolidated Cash Interest
Expense, pro forma effect shall be given to any incurrence, repayment
or assumption of Indebtedness that occurred during such Reference
Period or thereafter and through and including the date of consummation
of the event requiring the calculation of such financial ratio, as if
such incurrence, repayment or assumption of Indebtedness occurred on
the first day of such Reference Period; and
(c) in making any determination of Net Total Indebtedness or
Net Total Senior Secured Indebtedness in connection with any Permitted
Acquisition, the term "Indebtedness" shall be deemed to include the
Borrower's good faith estimate, as of the date of consummation of such
Permitted Acquisition, of the aggregate amount that will be payable by
the Borrower and the Subsidiaries pursuant to any post-closing payment
adjustments or earn-outs with respect to
23
such Permitted Acquisition except to the extent that the obligations of
the Borrower and the Subsidiaries to make any such payments are
subordinated to the Obligations,
in the case of clauses (a) and (b) with such pro forma adjustments (i) as would
be permitted to be reflected in pro forma financial information complying with
the requirements of Article 11 of Regulation S-X under the Securities Act (and
the interpretations of the SEC thereunder) and (ii) that represent cost savings
reasonably expected by such Financial Officer to be realized within 12 months
of the consummation of the applicable Permitted Acquisition.
"PROPOSED CHANGE" has the meaning assigned to such term in
Section 9.02(b).
"QUALIFIED PREFERRED STOCK" means, with respect to Holdings,
preferred stock of Holdings that (a) does not require cash dividends to be paid
on or prior to the date that is 180 days after the Term Loan Maturity Date, (b)
is not mandatorily redeemable pursuant to a sinking fund obligation or
otherwise prior to the date that is 180 days after the Term Loan Maturity Date,
(c) does not contain any maintenance covenants, other covenants adverse to the
Lenders or remedies (other than voting rights and increases in dividend rates)
and (d) is convertible only into common stock or other securities that would
constitute Qualified Preferred Stock.
"REGISTER" has the meaning set forth in Section 9.04.
"RELATED PARTIES" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents, trustees and advisors of such Person and such Person's Affiliates.
"RELEASE" means any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into or through the environment or within or upon any building,
structure, facility or fixture.
"REQUIRED LENDERS" means, at any time, Lenders having Revolving
Exposures, Term Loans, Loans in respect of Incremental Extensions of Credit, if
any, and unused Commitments representing more than 50% of the sum of the total
Revolving Exposures, outstanding Term Loans, Loans in respect of Incremental
Extensions of Credit, if any, and unused Commitments at such time.
"RESTRICTED PAYMENT" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in Holdings, the Borrower or any Subsidiary, or any payment (whether
in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancelation or termination of any Equity Interests in Holdings, the Borrower or
any Subsidiary or any option, warrant or other right to acquire any such Equity
Interests in Holdings, the Borrower or any Subsidiary.
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"RETAINED EXCESS CASH FLOW" means, with respect to any fiscal
year ending on or after December 28, 2007, the amount of Excess Cash Flow for
such fiscal year that the Borrower was not required to use to prepay the Term
Loans pursuant to Section 2.11(d).
"REVOLVING AVAILABILITY PERIOD" means the period from and
including the Effective Date to but excluding the earlier of the Revolving
Maturity Date and the date of termination of the Revolving Commitments.
"REVOLVING COMMITMENT" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed as
an amount representing the maximum possible aggregate amount of such Lender's
Revolving Exposure hereunder, as such commitment may be (a) reduced from time
to time pursuant to Section 2.08 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.04. The
initial amount of each Lender's Revolving Commitment is set forth on Schedule
2.01, or in the Assignment and Assumption pursuant to which such Lender shall
have assumed its Revolving Commitment, as applicable. The initial aggregate
amount of the Lenders' Revolving Commitments is $100,000,000.
"REVOLVING EXPOSURE" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans and its LC Exposure and Swingline Exposure at such time.
"REVOLVING LENDER" means a Lender with a Revolving Commitment
or, if the Revolving Commitments have terminated or expired, a Lender with
Revolving Exposure.
"REVOLVING LOAN" means a Loan made pursuant to clause (b) of
Section 2.01.
"REVOLVING MATURITY DATE" means June 23, 2012.
"S&P" means Standard & Poor's Ratings Group, Inc.
"SEC" means the Securities and Exchange Commission or any
Governmental Authority succeeding to any of its principal functions.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES PURCHASE AGREEMENT" means the securities purchase
agreement dated as of May 23, 2006, by and among American Sanitary
Incorporated, a Delaware corporation, Golder, Thoma, Xxxxxxx, Xxxxxx Fund V,
L.P., a Delaware limited partnership, GTCR Associates V, a Delaware
partnership, GTCR Capital Partners, L.P., a Delaware limited partnership, AmSan
and the Borrower.
25
"SECURITY DOCUMENTS" means the Collateral Agreement, the
Mortgages (if any) and each other security agreement or other instrument or
document executed and delivered pursuant to Section 5.12 or 5.13 to secure any
of the Obligations.
"SENIOR SUBORDINATED DEBT DOCUMENTS" means the Existing Senior
Subordinated Notes Indenture, the Senior Subordinated Notes Indenture and all
other instruments, agreements and other documents evidencing or governing the
Existing Senior Subordinated Notes or the Senior Subordinated Notes or
providing for any Guarantee or other right in respect thereof.
"SENIOR SUBORDINATED NOTES" means the 8-1/8% senior
subordinated notes due 2014 issued by the Borrower prior to the Effective Date
and the Indebtedness represented thereby.
"SENIOR SUBORDINATED NOTES INDENTURE" means the First
Supplemental Indenture dated as of June 23, 2006, among Holdings, the Borrower,
the Subsidiaries listed therein and The Bank of New York Trust Company, N.A.,
as trustee, in respect of the Senior Subordinated Notes.
"SHAREHOLDERS AGREEMENT" means the amended and restated
shareholders' agreement dated as of September 29, 2000, among the Borrower and
certain shareholders of the Borrower, as amended on December 21, 2004.
"SPECIFIED PROPERTIES" means the properties (and the
improvements thereon) owned by the Borrower and the Subsidiaries and set forth
on Schedule 1.01(b).
"SPONSORS" means Parthenon Capital, Inc. and its Controlled
Affiliates.
"STATUTORY RESERVE RATE" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the bank serving as the
Administrative Agent is subject with respect to the Adjusted LIBO Rate, for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those
imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any
comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"SUBORDINATED DEBT" means the Existing Senior Subordinated
Notes, the Senior Subordinated Notes and the Additional Senior Subordinated
Notes and the Indebtedness represented thereby.
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"SUBORDINATED PROMISSORY NOTE" means the 4% Nonrecourse
Subordinated Promissory Note due 2010 issued by Glenwood Acquisition LLC, in
the aggregate principal amount of $3,275,000.
"SUBSIDIARY" means, with respect to any Person (the "PARENT")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary
voting power or, in the case of a partnership, more than 50% of the partnership
interests are, as of such date, owned, controlled or held.
"SUBSIDIARY" means any subsidiary of the Borrower. For the
avoidance of doubt, Buyers Access shall not be deemed a Subsidiary.
"SUBSIDIARY LOAN PARTY" means any wholly owned Subsidiary that
is not a Foreign Subsidiary.
"SWAP AGREEMENT" means any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial
or pricing indices or measures of economic, financial or pricing risk or value
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 the Borrower or the Subsidiaries shall be a Swap Agreement.
"SWINGLINE EXPOSURE" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall be its Applicable Percentage of the
total Swingline Exposure at such time.
"SWINGLINE LENDER" means JPMorgan Chase Bank, N.A., in its
capacity as lender of Swingline Loans hereunder.
"SWINGLINE LOAN" means a Loan made pursuant to Section 2.04.
"SYNDICATION AGENT" means Xxxxxx Commercial Paper Inc.
"TAXES" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"TERM LOAN" means an Initial Term Loan or a Delayed Draw Term
Loan. Notwithstanding anything to the contrary herein, upon the initial
borrowing of the Delayed Draw Term Loans pursuant to Section 2.01(a)(ii), the
Initial Term Loans and the Delayed Draw Term Loans shall constitute the same
Term Loans.
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"TERM LOAN COMMITMENT" means an Initial Term Loan Commitment or
a Delayed Draw Term Loan Commitment.
"TERM LOAN LENDER" means a Lender with a Term Loan Commitment
or an outstanding Term Loan.
"TERM LOAN MATURITY DATE" means June 23, 2013.
"TRANSACTIONS" means (a) the execution, delivery and
performance by each Loan Party of the Loan Documents to which it is a party,
the borrowing of the Loans, the use of proceeds thereof and the issuance of
Letters of Credit hereunder, (b) the termination of the Existing Credit
Agreement and the payment in full of all principal, interest, fees and other
amounts outstanding thereunder and the release of all liens granted in respect
thereof on terms and conditions satisfactory to the Administrative Agent, (c)
the execution, delivery and performance by each Loan Party of the Senior
Subordinated Debt Documents to which it is to be a party, the issuance of the
Senior Subordinated Notes and the use of proceeds thereof, (d) the consummation
of the Debt Tender Offer (e) the consummation of the AmSan Acquisition and (f)
the payment of fees and expenses in connection with the foregoing.
"TYPE", when used in reference to any Loan or Borrowing, refers
to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"USA PATRIOT ACT" means The Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act
of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)).
"WITHDRAWAL LIABILITY" means 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.
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For
purposes of this Agreement, Loans may be classified and referred to by Class
(E.G., a "Revolving Loan") or by Type (E.G., a "Eurodollar Loan") or by Class
and Type (E.G., a "Eurodollar Revolving Loan"). Borrowings also may be
classified and referred to by Class (E.G., a "Revolving Borrowing") or by Type
(E.G., a "Eurodollar Borrowing") or by Class and Type (E.G., a "Eurodollar
Revolving Borrowing").
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein
shall apply equally to 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".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to
28
any restrictions on such amendments, supplements or modifications set forth
herein), (b) any reference herein to any Person shall be construed to include
such Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. ACCOUNTING TERMS; GAAP. 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 date hereof 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.
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS. Subject to the terms and conditions
set forth herein, each Lender agrees (a)(i) to make an Initial Term Loan to the
Borrower on the Effective Date in a principal amount not exceeding its Initial
Term Loan Commitment and (ii) to make a Delayed Draw Term Loan to the Borrower
on the Delayed Draw Funding Date in a principal amount not exceeding its
Delayed Draw Term Loan Commitment and (b) to make Revolving Loans to the
Borrower from time to time during the Revolving Availability Period in an
aggregate principal amount that will not result in such Lender's Revolving
Exposure exceeding such Lender's Revolving Commitment. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower
may borrow, prepay and reborrow Revolving Loans. Amounts prepaid or repaid in
respect of Term Loans may not be reborrowed.
SECTION 2.02. LOANS AND BORROWINGS. (a) Each Loan (other than a
Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the
same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. 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;
29
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 Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith. Each Swingline Loan shall be an
ABR Loan. Each Lender at its option may make any Eurodollar 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.
(c) At the commencement of each Interest Period for any
Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $500,000 and not less than $2,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $500,000 and not less than $1,000,000.
Each Swingline Loan shall be in an amount that is an integral multiple of
$250,000 and not less than $500,000. Borrowings of more than one Type and Class
may be outstanding at the same time; PROVIDED that there shall not at any time
be more than a total of ten Eurodollar Borrowings outstanding. Notwithstanding
anything to the contrary in this Section 2.02(c), an ABR Revolving Borrowing or
Swingline Loan may be in an aggregate amount that is (i) equal to the entire
unused balance of the total Revolving Commitments or (ii) required to finance
the reimbursement of an LC Disbursement as contemplated by Section 2.05(e).
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Revolving Maturity Date or Term Loan Maturity Date, as applicable.
SECTION 2.03. REQUESTS FOR BORROWINGS. To request a Revolving
Borrowing or Term Borrowing, the Borrower shall notify the Administrative Agent
of such request by telephone (a) in the case of a Eurodollar Borrowing, not
later than 11:00 a.m., New York City time, three Business Days before the date
of the proposed Borrowing (unless otherwise waived by the Administrative Agent)
or (b) in the case of an ABR Borrowing, not later than 11:00 a.m., New York
City time, one Business Day before the date of the proposed Borrowing; PROVIDED
that any such notice of an ABR Revolving Borrowing to finance the reimbursement
of an LC Disbursement as contemplated by Section 2.05(e) may be given not later
than 10:00 a.m., New York City 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 signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving
Borrowing or a Term Borrowing;
30
(ii) the aggregate amount of such 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
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated
by the definition of the term "Interest Period"; PROVIDED that (A) in
the case of any Eurodollar Borrowing that is an Initial Term Loan, the
initial Interest Period shall be one month and (B) in the case of any
Eurodollar Borrowing that is a Delayed Draw Term Loan, the initial
Interest Period shall be determined by the Administrative Agent in
consultation with the Borrower;
(vi) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06; and
(vii) in the case of a Revolving Borrowing, whether all or a
portion of the proceeds of such Borrowing will be used to finance
Permitted Acquisitions and, after giving effect to such Borrowing, the
aggregate principal amount of outstanding Revolving Loans used to
finance Permitted Acquisitions (which shall be determined as set forth
in Section 2.11(f)).
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar 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. (a) 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 Revolving 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 $15,000,000 or (ii) the aggregate amount of the Lenders' Revolving
Exposures exceeding the total amount of the Lenders' Revolving Commitments;
PROVIDED that the Swingline Lender shall not be required to make a Swingline
Loan to refinance an outstanding Swingline Loan. Within the foregoing limits
and subject to the terms and conditions set forth herein, the Borrower may
borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Swingline Lender of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested
date (which shall be a Business Day), amount of the requested Swingline Loan,
and the wire transfer instructions for the
31
account of the Borrower to which proceeds of the Swingline Loan are to be
disbursed. The Swingline Lender shall make each Swingline Loan available to the
Borrower by means of a credit to the account of the Borrower specified in the
notice (or, in the case of a Swingline Loan made to finance the reimbursement
of an LC Disbursement as provided in Section 2.05(e), by remittance to the
applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested
date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 12:00 noon, New York City time, on any
Business Day require the Revolving Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Revolving
Lenders will participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each Revolving Lender,
specifying in such notice such Lender's Applicable Percentage of such Swingline
Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the Administrative
Agent, for the account of the Swingline Lender, such Lender's Applicable
Percentage of such Swingline Loan or Loans. Each Revolving Lender acknowledges
and agrees that its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Revolving Lender shall comply with its obligation
under this paragraph by wire transfer of immediately available funds, in the
same manner as provided in Section 2.06 with respect to Loans made by such
Lender (and Section 2.06 shall apply, MUTATIS MUTANDIS, to the payment
obligations of the Revolving Lenders), and the Administrative Agent shall
promptly pay to the Swingline Lender the amounts so received by it from the
Revolving Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, 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
Lenders that shall have made their payments pursuant to this paragraph and to
the Swingline Lender, as their interests may appear; PROVIDED that any such
payment so remitted shall be repaid to the Swingline Lender or to the
Administrative Agent, as applicable, if and to the extent such payment is
required to be refunded to the Borrower for any reason. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower of any default in the payment thereof.
SECTION 2.05. LETTERS OF CREDIT. (a) GENERAL. Upon satisfaction
of the conditions specified in Sections 4.01 and 4.03 on the Effective Date,
each Existing Letter of Credit will, automatically without any action on the
part of any Person, be deemed to be a Letter of Credit issued hereunder for all
purposes of this Agreement and the other
32
Loan Documents. The Borrower agrees that, with respect to each Existing Letter
of Credit issued for the account of any of its Subsidiaries, the Borrower is
hereby deemed to be a co-applicant and the Borrower hereby agrees to be jointly
and severally liable with such Subsidiary for all obligations of an applicant
with respect to such Existing Letter of Credit. In addition, subject to the
terms and conditions set forth herein, the Borrower may request the issuance of
Letters of Credit for its own account (or for the account of any Subsidiary so
long as the Borrower and such Subsidiary are co-applicants), in a form
reasonably acceptable to the Administrative Agent and the applicable Issuing
Bank, at any time and from time to time during the Revolving Availability
Period. In the event of any inconsistency between the terms and conditions of
this Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Borrower to, or entered into by
the Borrower with, any Issuing Bank relating to any Letter of Credit, the terms
and conditions of this Agreement shall control.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN
CONDITIONS. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), 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,
except that the Issuing Banks in respect of Existing Letters of Credit shall
not be required to issue additional Letters of Credit or renew or extend an
Existing Letter of Credit unless agreed by them) to the applicable Issuing Bank
(which may be any Issuing Bank selected by the Borrower if there is more than
one Issuing Bank) and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with paragraph (c)
of this Section), the amount of such Letter of Credit, the name and address of
the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by the
applicable Issuing Bank, the Borrower also shall submit a letter of credit
application on such Issuing Bank's standard form in connection with any request
for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or extension (i) the
LC Exposure shall not exceed $40,000,000 and (ii) the aggregate amount of the
Lenders' Revolving Exposures shall not exceed the total amount of the Lenders'
Revolving Commitments.
(c) EXPIRATION DATE. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year after
the date of the issuance of such Letter of Credit (or, in the case of any
renewal or extension thereof, one year after such renewal or extension) and
(ii) the date that is five Business Days prior to the Revolving Maturity Date;
PROVIDED that any standby Letter of Credit may contain customary automatic
renewal provisions agreed upon by the Borrower and the applicable Issuing Bank
pursuant to which the expiration date is automatically extended by a specific
time period (but not to a date later than the date set forth in clause (ii)
above)
33
unless the applicable Issuing Bank gives notice to the beneficiary of such
Letter of Credit at least 60 days prior to the expiration date of such Letter
of Credit.
(d) PARTICIPATIONS. By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) and without
any further action on the part of the applicable Issuing Bank or the Lenders,
the applicable Issuing Bank hereby grants to each Revolving Lender, and each
Revolving Lender hereby acquires from such Issuing Bank, a participation in
such Letter of Credit equal to such Lender's Applicable Percentage of the
aggregate amount available to be drawn under such Letter of Credit. In
consideration and in furtherance of the foregoing, each Revolving Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the applicable Issuing Bank, such Lender's Applicable Percentage
of each LC Disbursement made by such Issuing Bank and not reimbursed by the
Borrower on the date due as provided in paragraph (e) of this Section, or of
any reimbursement payment required to be refunded to the Borrower for any
reason. Each Revolving Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.
(e) REIMBURSEMENT. If an Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse
such LC Disbursement by paying to the Administrative Agent an amount equal to
such LC Disbursement not later than 3:00 p.m., New York City time, on the date
that such LC Disbursement is made, if the Borrower shall have received notice
of such LC Disbursement prior to 10:00 a.m., New York City time, on such date,
or, if such notice has not been received by the Borrower prior to such time on
such date, then not later than 3:00 p.m., New York City time, on (i) the
Business Day that the Borrower receives such notice, if such notice is received
prior to 10:00 a.m., New York City time, on the day of receipt, or (ii) the
Business Day immediately following the day that the Borrower receives such
notice, if such notice is not received prior to such time on the day of
receipt; 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 Borrowing or Swingline Loan
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 Borrowing or Swingline Loan. If the Borrower fails to
make such payment when due, the Administrative Agent shall notify each
Revolving Lender of the applicable LC Disbursement, the payment then due from
the Borrower in respect thereof and such Lender's Applicable Percentage
thereof. Promptly following receipt of such notice, each Revolving Lender shall
pay to the Administrative Agent its Applicable 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 Lenders), and the
Administrative Agent shall promptly pay to the applicable Issuing Bank the
amounts so received by it from the Revolving Lenders. Promptly following
34
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 Lenders have made
payments pursuant to this paragraph to reimburse such applicable Issuing Bank,
then to such Lenders and the applicable Issuing Bank as their interests may
appear. Any payment made by a Revolving Lender pursuant to this paragraph to
reimburse the applicable Issuing Bank for any LC Disbursement (other than the
funding of ABR Revolving Loans or a Swingline Loan as contemplated above) shall
not constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.
(f) OBLIGATIONS ABSOLUTE. The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section shall
be absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of
any Letter of Credit or this Agreement, or any term or provision therein, (ii)
any draft or other document presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect, (iii) payment by an Issuing Bank under a
Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, 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 any payment or failure to make any payment thereunder (irrespective
of any of the circumstances referred to in the preceding sentence), or any
error, omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond
the control of any Issuing Bank; 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 or punitive
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 caused by
such Issuing Bank's failure to exercise care when determining whether drafts
and other documents presented under a Letter of Credit comply with the terms
thereof. The parties hereto expressly agree that, in the absence of gross
negligence or wilful misconduct on the part of an Issuing Bank (as finally
determined by a court of competent jurisdiction), such Issuing Bank shall be
deemed to have exercised care in each such determination. In furtherance of the
foregoing and without limiting the generality thereof, the parties agree that,
with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, 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.
35
(g) DISBURSEMENT PROCEDURES. An Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The applicable Issuing Bank shall
promptly notify the Administrative Agent and the Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether such Issuing
Bank has made or will make an LC Disbursement thereunder; PROVIDED that any
failure to give or delay in giving such notice shall not relieve the Borrower
of its obligation to reimburse the applicable Issuing Bank and the Revolving
Lenders with respect to any such LC Disbursement in accordance with Section
2.05(e).
(h) INTERIM INTEREST. If an Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
PROVIDED that, if the Borrower fails to reimburse such LC Disbursement 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 Lender pursuant to paragraph (e) of this Section to
reimburse such Issuing Bank shall be for the account of such Lender to the
extent of such payment.
(i) ISSUING BANKS. Any Issuing Bank may be terminated, and any
existing Revolving Lender may become an Issuing Bank, in each case at any time
by written agreement among the Borrower, the Administrative Agent and the
terminated Issuing Bank or additional Issuing Bank (as applicable). The
Administrative Agent shall notify the Lenders of any such additional Issuing
Bank. At the time any such termination shall become effective, the Borrower
shall pay all unpaid fees accrued for the account of the terminated Issuing
Bank pursuant to Section 2.12(b). From and after the effective date of any such
addition of an Issuing Bank, the additional Issuing Bank shall have all the
rights and obligations of an Issuing Bank under this Agreement with respect to
Letters of Credit issued by it. After the termination of an Issuing Bank
hereunder, the terminated Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit issued by it prior to such
termination, but shall not be required to issue additional Letters of Credit.
(j) CASH COLLATERALIZATION. If any Event of Default shall occur
and be continuing, on the Business Day that the Borrower receives notice from
the Administrative Agent or the Required Lenders (or, if the maturity of the
Loans has been accelerated, Revolving Lenders with LC Exposures representing
greater than 50% of the total LC Exposures) 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 LC Exposures as of
such date plus any accrued and unpaid interest thereon; PROVIDED that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower
36
described in clause (h) or (i) of Article VII. The Borrower also shall deposit
cash collateral pursuant to this paragraph as and to the extent required by
Section 2.11(b). Each such deposit 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 discretion of the
Administrative Agent and at the Borrower's risk and expense, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the applicable Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but subject to the consent of Revolving Lenders with LC
Exposures representing greater than 50% of the total LC Exposures), be applied
to satisfy other obligations of the Borrower under this Agreement. If the
Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Borrower within three Business
Days after all Events of Default have been cured or waived.
SECTION 2.06. FUNDING OF BORROWINGS. (a) 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, New York City 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 funds, to an account of the Borrower maintained with the Administrative
Agent in New York City and designated by the Borrower in the applicable
Borrowing Request; PROVIDED that ABR Revolving Loans and Swingline Loans made
to finance the reimbursement of an LC Disbursement as provided in Section
2.05(e) shall be remitted by the Administrative Agent to the applicable Issuing
Bank.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the 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 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 the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on
37
interbank compensation or (ii) in the case of the Borrower, the interest rate
applicable to ABR Loans. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender's Loan included in such
Borrowing as of the date of such Borrowing.
SECTION 2.07. INTEREST ELECTIONS. (a) Each Revolving Borrowing
and Term Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar 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 Eurodollar 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 Revolving 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 signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02 and paragraph
(e) of this Section:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing
or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar 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.
38
(d) Promptly following receipt of an Interest Election Request,
the Administrative Agent shall advise each Lender 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 Eurodollar 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
request 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 Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
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. (a)
Unless previously terminated, (i) the Initial Term Loan Commitments shall
terminate at 5:00 p.m., New York City time, on the Effective Date, (ii) the
Delayed Draw Term Loan Commitments shall terminate at 5:00 p.m., New York City
time, on the earlier of (A) the Delayed Draw Funding Date and (B) the Delayed
Draw Expiration Date and (iii) the Revolving Commitments shall terminate on the
Revolving Maturity Date.
(b) The Borrower may at any time terminate, or from time to
time reduce, the Commitments of any Class; PROVIDED that (i) each reduction of
the Commitments of any Class shall be in an amount that is an integral multiple
of $5,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.11,
the aggregate amount of the Lenders' Revolving Exposures would exceed the total
amount of the Lenders' Revolving Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; PROVIDED that a notice
of termination of the Revolving Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice
to the Administrative Agent, which shall promptly notify the Lenders, on or
prior to the specified effective date) if such condition is not satisfied. Any
termination or reduction of the Commitments of any Class shall be permanent.
Each reduction of the Commitments of any Class shall be made ratably among the
Lenders in accordance with their respective Commitments of such Class.
SECTION 2.09. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the
39
account of each Lender the then unpaid principal amount of each Revolving Loan
of such Lender on the Revolving 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
Maturity Date; PROVIDED that on each date that a Revolving Borrowing is made,
the Borrower shall repay all Swingline Loans that were outstanding on the date
such Borrowing was requested.
(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 Class and Type
thereof and the Interest Period 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) the amount of any sum 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 of any Class made by it
be evidenced by a promissory 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. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and
its registered assigns).
SECTION 2.10. AMORTIZATION OF TERM LOANS. (a) Subject to
adjustment pursuant to paragraph (c) of this Section, the Borrower shall repay
Term Borrowings on each date set forth below in the aggregate principal amount
equal to the product of (i) the percentage set forth below opposite such date
and (ii) the sum of (A) the aggregate principal amount of the Initial Term
Loans made on the Effective Date and (B) if the Delayed Draw Funding Date shall
occur, the aggregate principal amount of Delayed Draw Term Loans made on the
Delayed Draw Funding Date:
40
DATE AMOUNT
---- ------
September 29, 2006 0.25%
December 29, 2006 0.25%
March 30, 2007 0.25%
June 29, 2007 0.25%
September 28, 2007 0.25%
December 28, 2007 0.25%
March 28, 2008 0.25%
June 27, 2008 0.25%
September 26, 2008 0.25%
December 26, 2008 0.25%
March 27, 2009 0.25%
June 26, 2009 0.25%
September 25, 2009 0.25%
December 25, 2009 0.25%
March 26, 2010 0.25%
June 25, 2010 0.25%
September 24, 2010 0.25%
December 31, 2010 0.25%
March 25, 2011 0.25%
June 24, 2011 0.25%
September 30, 2011 0.25%
December 30, 2011 0.25%
March 30, 2012 0.25%
June 29, 2012 0.25%
September 28, 2012 0.25%
December 28, 2012 0.25%
March 29, 2013 0.25%
June 23, 2013 93.25%
(b) To the extent not previously paid, all Term Loans shall be
due and payable on the Term Loan Maturity Date.
(c) Any prepayment of a Term Borrowing or an Incremental
Extension of Credit that is a Term Loan shall be (i) in the case of prepayments
made pursuant
41
to Section 2.11(a), allocated between the Term Borrowings and the Incremental
Extensions of Credit that are Term Loans as directed by the Borrower and
applied to reduce the remaining subsequent scheduled repayments of the Term
Borrowings or Incremental Extensions of Credit that are Term Loans, as
applicable, pursuant to this Section in direct order of maturity and (ii) in
the case of prepayments made pursuant to Section 2.11(c), Section 2.11(d) or
Section 6.01(a)(viii), allocated between the Term Borrowings and Incremental
Extensions of Credit that are Term Loans ratably and applied (x) in the case of
Term Borrowings, to reduce the subsequent scheduled repayments of the Term
Borrowings to be made pursuant to this Section within such Class ratably and
(y) in the case of Incremental Extensions of Credit, as agreed in the
applicable Incremental Facility Amendment implementing such Incremental
Extension of Credit.
(d) Prior to any repayment of any Term Borrowings or
Incremental Extensions of Credit that are Term Loans 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
later than 11:00 a.m., New York City time, (i) three Business Days before the
scheduled date of such repayment in the case of Eurodollar Borrowings or (ii)
one Business Day before the scheduled date of repayment in the case of ABR
Borrowings. Each repayment of a Borrowing shall be applied ratably to the Loans
included in the repaid Borrowing. Repayments of Term Borrowings shall be
accompanied by accrued interest on the amount repaid.
SECTION 2.11. PREPAYMENT OF LOANS. (a) The Borrower shall have
the right at any time and from time to time to prepay any Borrowing in whole or
in part, subject to the requirements of this Section.
(b) In the event and on such occasion that the aggregate amount
of the Lenders' Revolving Exposures exceeds the total amount of the Lenders'
Revolving Commitments, the Borrower shall prepay Revolving 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.
(c) In the event and on each occasion that any Net Proceeds are
received by or on behalf of the Borrower or any Subsidiary in respect of any
Prepayment Event, the Borrower shall, within three Business Days after such Net
Proceeds are received, prepay Term Borrowings and Incremental Extensions of
Credit that are Term Loans in an aggregate amount equal to 100% of such Net
Proceeds; PROVIDED that, in the case of any event described in clauses (a) or
(b) of the definition of the term "Prepayment Event", if the Borrower shall
deliver to the Administrative Agent a certificate of a Financial Officer to the
effect that the Borrower and the Subsidiaries intend to apply the Net Proceeds
from such event (or a portion thereof specified in such certificate), within
360 days after receipt of such Net Proceeds, to acquire real property,
equipment or other tangible assets to be used in the business of the Borrower
and the Subsidiaries, and certifying that no Default has occurred and is
continuing, then no prepayment shall be required pursuant to this paragraph in
respect of the Net Proceeds in respect of such event (or the portion of such
Net Proceeds specified in such certificate, if applicable) except to the extent
of any
42
such Net Proceeds therefrom that have not been so applied or committed to be
applied pursuant to a bona fide contract by the end of such 360-day period, at
which time a prepayment shall be required in an amount equal to such Net
Proceeds that have not been so applied.
(d) Commencing with the fiscal year ending December 28, 2007,
the Borrower shall prepay Term Borrowings and Incremental Extensions of Credit
that are Term Loans in an aggregate amount equal to (i) the excess of (A) 50%
of Excess Cash Flow over (B) prepayments of Term Loans and Incremental
Extensions of Credit under Section 2.11(a) during such fiscal year, for any
fiscal year for which the Net Leverage Ratio at the end of such fiscal year is
greater than or equal to 4.00 to 1.00, (ii) the excess of (A) 25% of Excess
Cash Flow over (B) prepayments of Term Loans and Incremental Extensions of
Credit under Section 2.11(a) during such fiscal year, for any fiscal year for
which the Net Leverage Ratio at the end of such fiscal year is greater than or
equal to 3.25 to 1.00 and less than 4.00 to 1.00 and (iii) 0% of Excess Cash
Flow for any fiscal year for which the Net Leverage Ratio at the end of such
fiscal year is less than 3.25 to 1.00. Each prepayment pursuant to this
paragraph shall be made on or before the date on which financial statements are
delivered pursuant to Section 5.01 with respect to the fiscal year for which
Excess Cash Flow is being calculated (and in any event within 90 days after the
end of such fiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings
hereunder, the Borrower shall select the Borrowing or Borrowings to be prepaid
and shall specify such selection in the notice of such prepayment pursuant to
paragraph (f) of this Section.
(f) The Borrower shall notify the Administrative Agent (and, in
the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon, New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date, the principal amount of each Borrowing or portion
thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably
detailed calculation of the amount of such prepayment; PROVIDED that, if a
notice of optional prepayment is given in connection with a conditional notice
of termination of the Revolving Commitments as contemplated by Section 2.08,
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.08. Promptly following receipt of any such
notice (other than a notice relating solely to Swingline Loans), the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance of a Borrowing of the same Type as provided
in Section 2.02, except as necessary to apply fully the required amount of a
mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably
to the Loans included in the prepaid Borrowing; PROVIDED that prepayments of
Revolving
43
Borrowings shall be deemed to be applied first, to Revolving Borrowings used
for purposes other than to finance Permitted Acquisitions and second, to
Revolving Borrowings used to finance Permitted Acquisitions. Prepayments shall
be accompanied by accrued interest to the extent required by Section 2.13.
(g) All voluntary prepayments of the Term Loans effected on or
prior to the first anniversary of the Effective Date with the proceeds of a
substantially concurrent issuance or incurrence of new term loans under this
Agreement, as amended, amended and restated, supplemented, waived or otherwise
modified from time to time (excluding a refinancing of all the facilities
outstanding under this Agreement in connection with another transaction not
permitted by this Agreement (as determined prior to giving effect to any
amendment or waiver of this Agreement being adopted in connection with such
transaction)), shall be accompanied by a prepayment fee equal to 1.00% of the
aggregate amount of such prepayments if the Applicable Rate (or similar
interest rate spread) applicable to such new term loans is or, upon the
satisfaction of certain conditions, could be less than the Applicable Rate
applicable to the Term Loans on the Effective Date.
SECTION 2.12. FEES. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Lender a commitment fee,
which shall accrue at the Applicable Rate on the average daily unused amount of
each Revolving Commitment of such Lender during the period from and including
the Effective Date to but excluding the date on which the Revolving Commitments
terminate. Accrued commitment fees shall be payable in arrears on the last
Business Day of each March, June, September and December and on the date on
which such Commitments terminate, commencing on the first such date to occur
after the date hereof. All commitment fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). For purposes of computing
commitment fees with respect to Revolving Commitments, a Revolving Commitment
of a Lender shall be deemed to be used to the extent of the outstanding
Revolving Loans and LC Exposure of such Lender (and the Swingline Exposure of
such Lender shall be disregarded for such purpose).
(b) The Borrower agrees to pay (i) to the Administrative Agent
for the account of each Revolving Lender a participation fee with respect to
its participations in Letters of Credit, which shall accrue at the same
Applicable Rate used to determine the interest rate applicable to Eurodollar
Revolving Loans on the average daily amount of such Lender's LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the
later of the date on which such Lender's Revolving Commitment terminates and
the date on which such Lender ceases to have any LC Exposure, and (ii) to the
applicable Issuing Bank a fronting fee, which shall accrue at the rate or rates
per annum separately agreed upon between the Borrower and such Issuing Bank on
the average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date of
termination of the Revolving Commitments and the date on which there ceases to
be any LC Exposure, as well as the applicable Issuing Bank's standard fees with
respect to the issuance, amendment, renewal or
44
extension of any Letter of Credit or processing of drawings thereunder.
Participation fees and fronting fees shall be payable on the last Business Day
of each March, June, September and December, commencing on the first such date
to occur after the Effective Date; PROVIDED that all such fees shall be payable
on the date on which the Revolving Commitments terminate and any such fees
accruing after the date on which the Revolving Commitments terminate shall be
payable on demand. Any other fees payable to any Issuing Bank pursuant to this
paragraph shall be payable within 10 days after demand. All participation fees
and fronting fees shall be computed on the basis of a year of 360 days and
shall be payable for the actual number of days elapsed (including the first day
but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for
its own account, fees payable in the amounts and at the times separately agreed
upon between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent (or to the
applicable Issuing Bank, in the case of fees payable to it) for distribution,
in the case of commitment fees and participation fees, to the Lenders entitled
thereto. Fees paid shall not be refundable under any circumstances.
SECTION 2.13. INTEREST. (a) The Loans comprising each ABR
Borrowing (including each Swingline Loan) shall bear interest at the Alternate
Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee 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 Revolving Loans as provided in paragraph (a)
of this Section.
(d) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and, in the case of Revolving
Loans, upon termination of the Revolving Commitments; 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 prior to the end of the Revolving
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 Eurodollar Loan prior to the
45
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 Alternate
Base Rate at times when the Alternate Base Rate 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 Alternate
Base Rate or Adjusted 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 Eurodollar 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 for such
Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders
that the Adjusted LIBO Rate 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 (which notice the
Administrative Agent agrees to give promptly after such circumstances cease to
exist), (i) any Interest Election Request that requests the conversion of any
Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall
be ineffective and (ii) if any Borrowing Request requests a Eurodollar
Borrowing, such Borrowing shall be made as an ABR Borrowing.
SECTION 2.15. INCREASED COSTS. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement to the extent reflected in the Adjusted LIBO Rate)
or any Issuing Bank; or
(ii) impose on any Lender or any Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar 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 Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or any
Issuing Bank of participating in, issuing or maintaining any Letter of Credit
or to reduce the amount of any sum received
46
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 the case may be, such additional amount or amounts as will compensate
such Lender or Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or any 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 held by, such Lender, or the Letters of Credit issued by such
Issuing Bank, to a level below that which such Lender or Issuing Bank or such
Lender's or Issuing Bank's holding company could have achieved but for such
Change in Law (taking into consideration such Lender's or Issuing Bank's
policies and the policies of such Lender's or Issuing Bank's holding company
with respect to capital adequacy), then from time to time the Borrower will pay
to such Lender or Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or Issuing Bank or such Lender's or
Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or Issuing Bank or its
holding company, as the case may be, 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 the case
may be, the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender or an 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
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 the case may be, 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 retroactive, then
the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.16. BREAK FUNDING PAYMENTS. In the event of (a) the
payment of any principal of any Eurodollar 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 Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Term Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.11(f) and is revoked in accordance therewith), or (d)
the assignment of any Eurodollar Loan other than on the last day of the
Interest Period applicable thereto as a result of a request by the Borrower
pursuant to Section 2.19, then,
47
in any such event, the Borrower shall compensate each Lender for the loss
(other than loss of margin or anticipated profit), cost and expense
attributable to such event. In the case of a Eurodollar Loan, such loss, cost
or expense to any Lender shall be deemed to include an amount determined by
such Lender 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,
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 dollar deposits of a comparable amount and
period from other banks in the eurodollar market. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section 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. (a) Any and all payments by or on account
of any obligation of the Borrower hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes; PROVIDED that if the Borrower 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, a Lender or an Issuing Bank (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii)
the Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and each Issuing Bank, within 10 days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or such Issuing Bank, as the case may be, on
or with respect to any payment by or on account of any obligation of the
Borrower hereunder or under any other Loan Document (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender or an Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or an Issuing
Bank, shall be conclusive absent manifest error.
48
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
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) Each Foreign Lender shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed
by applicable law or reasonably requested by the Borrower as will permit such
payments to be made without withholding or at a reduced rate, pursuant 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.
(f) If the Administrative Agent or a Lender determines, in its
sole good faith discretion, that it has received a refund of any Indemnified
Taxes or Other Taxes as to which it has been indemnified by the Borrower or
with respect to which the Borrower has paid additional amounts pursuant to this
Section 2.17, it shall upon such determination pay over such refund to the
Borrower (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this Section 2.17 with respect to the
Indemnified Taxes or Other Taxes giving rise to such refund), net of all
reasonable out-of-pocket expenses of the Administrative Agent or such Lender
and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); PROVIDED that the Borrower, upon the
request of the Administrative Agent or such Lender, agrees to repay the amount
paid over to the Borrower (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 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 Borrower or any other Person.
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING
OF SET-OFFS. (a) The Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest,
fees or reimbursement of LC Disbursements, or of amounts payable under Section
2.15, 2.16 or 2.17, or otherwise) prior to the time expressly required
hereunder or under such other Loan Document for such payment (or, if no such
time is expressly required, prior to 12:00 noon, New York City time), on the
date when due, in immediately available funds, without 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 at its offices at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, except payments to be made directly to an Issuing Bank or
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16, 2.17
49
and 9.03 shall be made directly to the Persons entitled thereto and payments
pursuant to other Loan Documents shall be made to the Persons specified
therein. 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 under any Loan Document 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 each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or by taking a credit against the purchase price payable in
respect of Collateral pursuant to Section 5.01 of the Collateral Agreement or
otherwise, obtain payment in respect of any principal of or interest on any of
its Revolving Loans, Term Loans or participations in LC Disbursements or
Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans, Term Loans and
participations in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans, Term Loans and participations in LC
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 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 LC 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 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.
50
(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 any 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 the case may be, the amount due.
In such event, if the Borrower has not in fact made such payment, then each of
the Lenders or each Issuing Bank, as the case may be, severally agrees to repay
to the Administrative Agent forthwith on demand the amount so distributed to
such Lender or Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date
of payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or
9.03(c), 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.
(a) 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
judgment of such Lender, such designation or assignment (i) would eliminate or
reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in
the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. 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 if any Lender defaults in its obligation to fund Loans hereunder, 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 a Revolving Commitment is being assigned, each Issuing Bank and
the Swingline Lender), which consent shall not unreasonably be withheld, (ii)
such Lender shall have received
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payment of an amount equal to the outstanding principal of its Loans and
participations in LC 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 material reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to
apply.
SECTION 2.20. INCREMENTAL EXTENSIONS OF CREDIT. Subject to the
terms and conditions set forth herein, the Borrower may at any time and from
time to time, by notice to the Administrative Agent (whereupon the
Administrative Agent shall promptly deliver a copy of such notice to each of
the Lenders), (a) at any time prior to the Term Loan Maturity Date, request to
add additional term loans (the "INCREMENTAL TERM LOANS") in minimum principal
amounts of $25,000,000 and (b) at any time prior to the Revolving Maturity
Date, request to add additional revolving commitments (the "INCREMENTAL
REVOLVING COMMITMENTS" and, together with the Incremental Term Loans, the
"INCREMENTAL EXTENSIONS OF CREDIT") in minimum principal amounts of
$25,000,000; PROVIDED that immediately prior to and after giving effect to any
Incremental Facility Amendment (as defined below), (a) no Default has occurred
or is continuing or shall result therefrom and (b) on a Pro Forma Basis, as of
the last day of the most recently ended fiscal quarter of the Borrower for
which financial statements are available, (i) the Borrower shall be in
compliance with the covenants contained in Sections 6.12 and 6.13 and (ii) the
Net Senior Secured Leverage Ratio shall be less than 2.50 to 1.00. The
Incremental Extensions of Credit (a) shall (i) in the case of Incremental Term
Loans, be in an aggregate principal amount not exceeding $100,000,000 and (ii)
in the case of Incremental Revolving Commitments, be in an aggregate principal
amount not exceeding $50,000,000, (b) shall rank PARI PASSU in right of payment
and right of security in respect of the Collateral with the Term Loans or the
Revolving Loans, as the case may be, and (c) other than amortization, pricing
and maturity date, shall have the same terms as the Term Loans or Revolving
Commitments, as applicable, as in effect immediately prior to the effectiveness
of the applicable Incremental Facility Amendment (the "EXISTING EXTENSIONS OF
CREDIT"); PROVIDED that (i) if the Applicable Rate (which, for such purposes
only, shall be deemed to include all upfront or similar fees or original issue
discount payable to all Lenders providing such Incremental Extensions of
Credit) relating to any Incremental Extension of Credit exceeds the Applicable
Rate relating to the analogous Existing Extensions of Credit by more than
0.25%, the Applicable Rate relating to the analogous Existing Extensions of
Credit shall be adjusted to be equal to the Applicable Rate (which, for such
purposes only, shall be deemed to include all upfront or similar fees or
original issue discount payable to all Lenders providing such Incremental
Extensions of Credit) relating to the applicable Incremental Extensions of
Credit minus 0.25%, (ii) the Incremental Extensions of Credit in the form of
Incremental Term Loans shall not have a final maturity date earlier than the
Term Loan Maturity Date and Incremental Extensions of Credit in the form of
Incremental Revolving Commitments shall not have a final maturity date earlier
than the Revolving Maturity Date and (iii) the Incremental
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Extensions of Credit in the form of Incremental Term Loans shall not have a
weighted average life that is shorter than that of the then-remaining weighted
average life of the Existing Extensions of Credit that are Term Loans. No
Lender shall be obligated to provide any Incremental Extension of Credit unless
it so agrees. Any additional bank, financial institution, Lender or other
Person that elects to extend Incremental Extensions of Credit shall be
reasonably satisfactory to the Borrower and the Administrative Agent (any such
bank, financial institution, Lender or other Person being called an "ADDITIONAL
LENDER") and shall become a Lender under this Agreement, pursuant to an
amendment (an "INCREMENTAL FACILITY AMENDMENT") to this Agreement, giving
effect to the modifications permitted or required by this Section 2.20, and, as
appropriate, the other Loan Documents, executed by the Borrower, each existing
Lender agreeing to provide a commitment in respect of the Incremental
Extensions of Credit, if any, each Additional Lender, if any, and the
Administrative Agent. Commitments in respect of Incremental Extensions of
Credit shall be Commitments under this Agreement. An Incremental Facility
Amendment may, without the consent of any other Lenders, effect such amendments
to this Agreement and the other Loan Documents as may be necessary or
appropriate, in the opinion of the Administrative Agent, to effect the
provisions of this Section 2.20 (including voting provisions applicable to the
Additional Lenders comparable to the provisions of clause (B) of the second
proviso of Section 9.02). The effectiveness of any Incremental Facility
Amendment shall be subject to the satisfaction on the date thereof (each, an
"INCREMENTAL FACILITY CLOSING DATE") of each of the conditions set forth in
Section 4.03 (it being understood that all references to "the date of such
Borrowing" in such Section 4.03 shall be deemed to refer to the Incremental
Facility Closing Date). The proceeds of the Incremental Extensions of Credit
shall be used to make Permitted Acquisitions, to repay outstanding Revolving
Loans or for general corporate purposes.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of Holdings and the Borrower represents and warrants to
the Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. Each of Holdings, the
Borrower and the Subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to own or lease its properties and to carry on
its business as currently conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.
SECTION 3.02. AUTHORIZATION; ENFORCEABILITY. The Transactions
to be entered into by each Loan Party are within such Loan Party's powers and
have been duly authorized by all necessary corporate or company and, if
required, stockholder or
53
member action. This Agreement has been duly executed and delivered by Holdings
and the Borrower and constitutes, and each other Loan Document to which any
Loan Party is to be a party, when executed and delivered by such Loan Party,
will constitute, a legal, valid and binding obligation of the Borrower or such
Loan Party (as the case may be), enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in
equity or at law.
SECTION 3.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. The
Transactions (a) do not require any material consent or approval of,
registration or filing with, or any other action by, any Governmental
Authority, except such as have been obtained or made and are in full force and
effect and except filings necessary to perfect Liens created under the Loan
Documents, (b) will not violate any material applicable law or regulation or
the charter, by-laws or other organizational documents of Holdings, the
Borrower or any Subsidiary or any material order of any Governmental Authority,
(c) will not violate or result in a default under any indenture, agreement or
other instrument binding upon Holdings, the Borrower or any Subsidiary or its
assets, or give rise to a right thereunder to require any payment to be made to
Holdings, the Borrower or any of the Subsidiaries, and (d) will not result in
the creation or imposition of any Lien on any asset of Holdings, the Borrower
or any of the Subsidiaries, except Liens created under the Loan Documents.
SECTION 3.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
(a) The Borrower has heretofore furnished to the Lenders (i) its consolidated
balance sheets as of December 31, 2004 and December 30, 2005, (ii) its
consolidated statements of income, stockholders' equity and cash flows for the
fiscal years ended December 26, 2003, December 31, 2004 and December 30, 2005,
in the case of clauses (i) and (ii), reported on by Deloitte & Touche LLP,
independent public accountants, and (iii) its consolidated balance sheet and
consolidated statements of income, stockholders' equity and cash flows as of
and for the fiscal quarter and three-month period ended March 31, 2006 (and the
comparable period for the prior fiscal year), as reviewed by Deloitte & Touche
LLP, independent public accountants, in accordance with Statement on Auditing
Standards No. 100 and certified by the chief financial officer of the Borrower.
Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Borrower and
the Subsidiaries, on a consolidated basis, as of such dates and for such
periods in accordance with GAAP, subject to year-end audit adjustments and the
absence of footnotes in the case of the statements referred to in clause (iii)
above.
(b) The Borrower has heretofore furnished to the Lenders its
pro forma consolidated balance sheet as of March 31, 2006, prepared giving
effect to the Transactions as if the Transactions had occurred on such date.
Such pro forma consolidated balance sheet (i) has been prepared in good faith
based on the same assumptions used to prepare the pro forma financial
statements included in the Information Memorandum (which assumptions are
believed by the Borrower to be reasonable), (ii) is based on the best
information available to the Borrower after due
54
inquiry, (iii) accurately reflects all adjustments necessary to give effect to
the Transactions and (iv) presents fairly, in all material respects, the pro
forma financial position of the Borrower and the Subsidiaries, on a
consolidated basis, as of March 31, 2006, as if the Transactions had occurred
on such date.
(c) Except as disclosed in the financial statements referred to
above or the notes thereto or in the Information Memorandum and except for the
Disclosed Matters, after giving effect to the Transactions, none of Holdings,
the Borrower or the Subsidiaries has, as of the Effective Date and the Delayed
Draw Funding Date, any material contingent liabilities, unusual long-term
commitments or unrealized losses.
(d) Since December 30, 2005, there has been no material adverse
change in the condition (financial or otherwise), assets, operations or
business of Holdings, the Borrower and the Subsidiaries, taken as a whole.
SECTION 3.05. PROPERTIES. (a) Each of Holdings, the Borrower
and the Subsidiaries has good title to, or valid leasehold interests in, all
the real and personal property material to its business (including its
Mortgaged Properties), except for minor defects in title that do not interfere
with its ability to conduct its business as currently conducted or to utilize
such properties for their intended purposes.
(b) Each of Holdings, the Borrower and the Subsidiaries owns,
or is licensed to use, all trademarks, tradenames, copyrights, patents and
other intellectual property material to its business, and, to the knowledge of
Holdings or the Borrower, the use thereof by Holdings, the Borrower and the
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
(c) Schedule 3.05 sets forth the address of each real property
that is owned or leased by Holdings, the Borrower or any of the Subsidiaries as
of the Effective Date after giving effect to the Transactions.
(d) As of the Effective Date, none of Holdings, the Borrower or
any of the Subsidiaries has received notice of, or has knowledge of, any
pending or contemplated condemnation proceeding affecting any Mortgaged
Property or any Specified Property or any sale or disposition thereof in lieu
of condemnation. Neither any Mortgaged Property or any Specified Property nor
any interest therein is subject to any right of first refusal, option or other
contractual right to purchase such Mortgaged Property or Specified Property or
interest therein.
SECTION 3.06. LITIGATION AND ENVIRONMENTAL MATTERS. (a) There
are no actions, suits or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of Holdings or the
Borrower, threatened against or affecting Holdings, the Borrower or any
Subsidiary (i) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse
55
Effect (other than the Disclosed Matters) or (ii) that involve any of the Loan
Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect to
any other matters that, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect, none of Holdings, the
Borrower or any Subsidiary (i) has failed to comply with any Environmental Law
or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any
Environmental Liability, (iii) has received notice of any claim with respect to
any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
SECTION 3.07. COMPLIANCE WITH LAWS AND AGREEMENTS. Each of
Holdings, the Borrower and the Subsidiaries is in compliance with all laws,
regulations and orders of any Governmental Authority applicable to it or its
property and all indentures, agreements and other instruments binding upon it
or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.
SECTION 3.08. INVESTMENT AND HOLDING COMPANY STATUS. None of
Holdings, the Borrower or any of the Subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 3.09. TAXES. Each of Holdings, the Borrower and the
Subsidiaries has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all Taxes
required to have been paid by it, except (a) any Taxes that are being contested
in good faith by appropriate proceedings and for which Holdings, the Borrower
or such Subsidiary, as applicable, has set aside on its books adequate reserves
to the extent required by GAAP or (b) to the extent that the failure to do so
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such
ERISA Events for which liability is reasonably expected to result, could
reasonably be expected to result in an unsatisfied liability of Holdings, the
Borrower and the Subsidiaries in an aggregate amount exceeding $5,000,000 for
all periods. The present value of all accumulated benefit obligations under all
Plans (based on the assumptions used by such Plan for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market
value of the assets of such Plan by an amount greater than $5,000,000. The
minimum funding standards of ERISA and the Code with respect to each Plan have
been satisfied.
SECTION 3.11. DISCLOSURE. The Borrower has disclosed to the
Lenders all agreements, instruments and corporate or other restrictions to
which Holdings, the
56
Borrower or any of the Subsidiaries is subject, and all other matters known to
any of them, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. Neither the Information
Memorandum nor any of the other reports, financial statements, certificates or
other information furnished by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or any other Loan Document or delivered hereunder or thereunder (as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED that, with respect to projected financial
information, Holdings and the Borrower represent only that such information was
prepared in good faith based upon assumptions believed by it to be reasonable
at the time.
SECTION 3.12. SUBSIDIARIES. Holdings does not have any
subsidiaries other than the Borrower and the Subsidiaries. Schedule 3.12 sets
forth the name of, and the ownership interest of the Borrower in, each
Subsidiary and identifies each Subsidiary that is a Subsidiary Loan Party, in
each case as of the Effective Date.
SECTION 3.13. INSURANCE. Schedule 3.13 sets forth a description
of all insurance maintained by or on behalf of Holdings, the Borrower and the
Subsidiaries as of the Effective Date. As of the Effective Date and the Delayed
Draw Funding Date, all premiums in respect of such insurance have been paid.
The Borrower believes that the insurance maintained by or on behalf of
Holdings, the Borrower and the Subsidiaries is adequate.
SECTION 3.14. LABOR MATTERS. As of the Effective Date and the
Delayed Draw Funding Date, there are no strikes, lockouts or slowdowns against
Holdings, the Borrower or any Subsidiary pending or, to the knowledge of the
Borrower, threatened. The hours worked by 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 Federal, state, local or
foreign law dealing with such matters. All payments due from Holdings, the
Borrower or any Subsidiary, or for which any claim may be made against
Holdings, the Borrower or any Subsidiary, 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. The
consummation of the Transactions will not give rise to any right of termination
or right of renegotiation on the part of any union under any collective
bargaining agreement to which Holdings, the Borrower or any Subsidiary is
bound.
SECTION 3.15. SOLVENCY. Immediately after (1) the consummation
of the Transactions to occur on the Effective Date and immediately following
the making of each Loan made on the Effective Date and after giving effect to
the application of the proceeds of such Loans and (2) the consummation of the
Transactions to occur on the Delayed Draw Funding Date and immediately
following the making of each Loan made on the Delayed Draw Funding Date and
after giving effect to the application of the proceeds of such Loans, in the
case of each of clauses (1) and (2) above, (a) the fair value of the assets of
each Loan Party, at a fair valuation, will exceed its debts and liabilities,
57
subordinated, contingent or otherwise; (b) the present fair saleable value of
the property of each Loan Party will be greater than the amount that will be
required to pay the probable liability of its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) each Loan Party will be able to pay its debts
and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) each Loan Party will not have
unreasonably small capital with which to conduct the business in which it is
engaged as such business is currently conducted and is proposed to be conducted
following the Effective Date or the Delayed Draw Funding Date, as applicable.
SECTION 3.16. SENIOR INDEBTEDNESS; DESIGNATED SENIOR
INDEBTEDNESS. The Obligations constitute "Senior Indebtedness" and "Designated
Senior Indebtedness" under and as defined in the Senior Subordinated Debt
Documents and the Subordinated Promissory Note (and to the extent any
Additional Senior Subordinated Notes are issued, the documents governing the
Additional Senior Subordinated Notes).
ARTICLE IV
CONDITIONS
SECTION 4.01. EFFECTIVE DATE. The obligations of the Lenders to
make Loans and of an Issuing Bank to issue Letters of Credit hereunder shall
not become effective until the date on which each of the following conditions
is satisfied (or waived in accordance with Section 9.02):
(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 a favorable
written opinion (addressed to the Administrative Agent and the Lenders and
dated the Effective Date) of each of (i) Xxxx, Weiss, Rifkind, Xxxxxxx &
Xxxxxxxx LLP, counsel for the Borrower, substantially in the form of Exhibit
D-1, and (ii) Dechert LLP, substantially in the form of Exhibit D-2. The
Borrower hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents
and certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of each Loan
Party, the authorization of the Transactions and any other legal matters
relating to the Loan Parties, the Loan Documents or the Transactions, all in
form and substance reasonably satisfactory to the Administrative Agent and its
counsel.
58
(d) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, confirming compliance with the conditions
set forth in paragraphs (a) and (b) of Section 4.03.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket expenses
(including reasonable fees, charges and disbursements of counsel) required to
be reimbursed or paid by any Loan Party hereunder or under any other Loan
Document.
(f) The Collateral and Guarantee Requirement shall have been
satisfied, and the Administrative Agent shall have received a completed
Perfection Certificate dated the Effective Date and signed by an executive
officer or Financial Officer of the Borrower, together with all attachments
contemplated thereby, including 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 by
Section 6.02 or have been released.
(g) The Administrative Agent shall have received evidence that
the insurance required by Section 5.07 and the Security Documents is in effect.
(h) The Borrower shall have received gross cash proceeds of not
less than $175,000,000 from the issuance of the Senior Subordinated Notes. The
Administrative Agent shall have received copies of the Senior Subordinated Debt
Documents, certified by a Financial Officer as complete and correct.
(i) The Lenders shall have received a pro forma consolidated
capitalization table of the Borrower as of March 31, 2006 reflecting all pro
forma adjustments as if the Transactions had been consummated on such date, and
such pro forma consolidated capitalization table shall be consistent in all
material respects with the forecasts and other information previously provided
to the Lenders. After giving effect to the Transactions, neither the Borrower
nor any of the Subsidiaries shall have outstanding any shares of preferred
stock or any Indebtedness, other than (i) Indebtedness incurred under the Loan
Documents, (ii) the Existing Senior Subordinated Notes, (iii) Existing
Preferred Stock, (iv) the Senior Subordinated Notes and (v) Indebtedness
permitted pursuant to Section 6.01(a)(iv), (v), (vi) or (vii).
(j) The Existing Credit Agreement shall have been terminated
(except with respect to those provisions which survive such termination
pursuant to the terms of the Existing Credit Agreement), and all loans,
interest and other amounts accrued or owing thereunder shall have been repaid
in full and all liens granted in respect thereof shall have been released and
the terms and conditions of any such release shall be reasonably satisfactory
to the Administrative Agent. The Administrative Agent shall
59
have received a payoff and release letter in form and substance reasonably
satisfactory to the Administrative Agent from Credit Suisse.
(k) The Borrower shall have consummated the Debt Tender Offer.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans and
of an Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 5:00 p.m., New York City time, on June
23, 2006 (and, in the event such conditions are not so satisfied or waived, the
Commitments shall terminate at such time).
SECTION 4.02. DELAYED DRAW FUNDING DATE. The obligations of the
Lenders to make the Delayed Draw Term Loans pursuant to Section 2.01(a)(ii)
shall not become effective until (x) the Effective Date has occurred and (y)
the date on which each of the following conditions is satisfied (or waived in
accordance with Section 9.02):
(a) The AmSan Acquisition shall have been consummated in
accordance with applicable law and the Securities Purchase Agreement in all
material respects substantially simultaneously with the making of the Delayed
Draw Term Loans. No material provision of the Securities Purchase Agreement
shall have been waived, amended, supplemented or otherwise modified in any
respect materially adverse to the Lenders without the consent of the
Administrative Agent.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders and
dated the Delayed Draw Funding Date) of each of (i) Xxxx, Weiss, Rifkind,
Xxxxxxx & Xxxxxxxx LLP, counsel for the Borrower, and (ii) Dechert LLP, and, in
the case of each such opinion required by this paragraph, covering such matters
relating to the Loan Parties, the Loan Documents or the Transactions as the
Administrative Agent shall reasonably request. The Borrower hereby requests
such counsel to deliver such opinions.
(c) The Administrative Agent shall have received a certificate,
dated the Delayed Draw Effective Date and signed by the President, a Vice
President or a Financial Officer of the Borrower, confirming compliance with
the conditions set forth in paragraphs (a) and (b) of Section 4.03.
(d) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Delayed Draw Funding Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses (including reasonable fees, charges and disbursements of
counsel) required to be reimbursed or paid by any Loan Party hereunder or under
any other Loan Document.
(e) The requirements of Section 5.13 of this Agreement shall
have been satisfied with respect to AmSan and its subsidiaries.
60
The Administrative Agent shall notify the Borrower and the Lenders of the
Delayed Draw Funding Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make the
Delayed Draw Term Loans shall not become effective unless each of the foregoing
conditions is satisfied (or waived pursuant to Section 9.02) at or prior to
5:00 p.m., New York City time, on July 15, 2006 (and, in the event such
conditions are not so satisfied or waived, the Delayed Draw Term Loan
Commitments shall terminate at such time).
SECTION 4.03. EACH CREDIT EVENT. The obligation of each Lender
to make a Loan on the occasion of any Borrowing, and of any Issuing Bank to
issue, amend, renew or extend any Letter of Credit, is subject to receipt of
the request therefor in accordance herewith and to the satisfaction of the
following conditions:
(a) the representations and warranties of each Loan Party set
forth in the Loan Documents shall be true and correct in all material respects
on and as of the date of such Borrowing or the date of issuance, amendment,
renewal or extension of such Letter of Credit, except to the extent such
representations and warranties expressly relate to an earlier or later date, as
applicable; and
(b) at the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing;
PROVIDED, HOWEVER, that for purposes of determining the satisfaction of the
conditions set forth in this Section 4.03 in connection with the making of the
Delayed Draw Term Loans on the Delayed Draw Funding Date, (i) the reference in
Section 3.04(d) of this Agreement to a "material adverse change" shall be
deemed to refer solely to a "Material Adverse Effect" (as defined in the
Securities Purchase Agreement) and (ii) the accuracy of all representations and
warranties set forth in the Loan Documents (other than (A) representations and
warranties of AmSan relating to due organization, execution, delivery and
enforceability of the Loan Documents and (B) such other representations and
warranties of AmSan in the Securities Purchase Agreement as are relevant to the
interests of the Lenders, but, in the case of the immediately preceding clause
(B), only to the extent that a breach of such representations and warranties
would result in a failure of a condition to the consummation of the AmSan
Acquisition) and the absence of a Default shall be determined before giving
effect to the AmSan Acquisition. Each Borrowing and each issuance, amendment,
renewal or extension of a Letter of Credit shall be deemed to constitute a
representation and warranty by Holdings and the Borrower on the date thereof as
to the matters specified in paragraphs (a) and (b) of this Section.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall
have been paid in full
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and all Letters of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, each of Holdings and the Borrower
covenants and agrees with the Lenders that:
SECTION 5.01. FINANCIAL STATEMENTS AND OTHER INFORMATION.
Holdings and the Borrower will furnish to the Administrative Agent and each
Lender through the Administrative Agent:
(a) within 90 days (or 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 of the Borrower, a copy of its audited consolidated balance sheet
and related statements of operations, stockholders' equity and cash flows as of
the end of and for such year, setting forth in each case in comparative form
the figures as of the end of and for the previous fiscal year, all reported on
by Deloitte and Touche LLP or other independent public accountants of
recognized national standing (without a "going concern" or like qualification
or exception and without any qualification or exception as to the scope of such
audit) to the effect that such consolidated financial statements present fairly
in all material respects the financial condition and results of operations of
the Borrower and the Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied;
(b) within 45 days (or 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 of the Borrower, its
consolidated balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such fiscal quarter and the then
elapsed portion of such fiscal year, setting forth in each case in comparative
form the figures for the corresponding period or periods of (or, in the case of
the balance sheet, as of the end of) the previous fiscal year, all certified by
a Financial Officer as presenting fairly in all material respects the financial
condition and results of operations of the Borrower and the Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes; PROVIDED that
the foregoing shall not apply if the Borrower is required to file periodic
reports pursuant to the Securities Exchange Act of 1934, as amended, and has
filed a quarterly report on Form 10-Q with the SEC, which report shall be
furnished to the Administrative Agent promptly following such filing;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer (i)
certifying as to whether a Default has occurred and, if a Default has occurred,
specifying the details thereof and any action taken or proposed to be taken
with respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating whether there has been compliance with Sections 6.12, 6.13 and
6.14 and (iii) stating whether any change in GAAP or in the application thereof
has occurred since the date of the Borrower's audited financial statements
referred to in Section 3.04 and, if any such change has occurred, specifying
the effect of such change on the financial statements accompanying such
certificate;
(d) concurrently with any delivery of financial statements
under clause (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during the
course of their examination of such financial statements of any Default and, if
such knowledge has been obtained, describing such Default (which certificate
may be limited to the extent required by accounting rules or guidelines);
(e) within 120 days after the commencement of each fiscal year
of the Borrower commencing with the fiscal year ending December 28, 2007, a
detailed consolidated budget for such fiscal year (including a projected
consolidated balance sheet and related statements of projected operations and
cash flows as of the end of and for such fiscal year and setting forth the
assumptions used for purposes of preparing such budget) and, promptly when
available, any significant revisions of such budget;
(f) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials filed
by Holdings, the Borrower or any Subsidiary with the SEC, or with any national
securities exchange, as the case may be; and
(g) promptly following any request therefor, such other
information regarding the operations, business affairs and financial condition
of the Borrower or any Subsidiary, or compliance with the terms of any Loan
Document, as the Administrative Agent or any Lender may reasonably request.
SECTION 5.02. NOTICES OF MATERIAL EVENTS. Holdings and the
Borrower will furnish to the Administrative Agent and each Lender through the
Administrative Agent prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority against or
affecting Holdings, the Borrower or any Affiliate thereof that, if adversely
determined, could reasonably be expected to result in a Material Adverse
Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be expected to
result in an unsatisfied liability of Holdings, the Borrower and the
Subsidiaries in an aggregate amount exceeding $5,000,000; and
(d) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
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Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth
the details of the event or development requiring such notice and any action
taken or proposed to be taken with respect thereto.
SECTION 5.03. INFORMATION REGARDING COLLATERAL. (a) Holdings
and the Borrower will furnish to the Administrative Agent prompt written notice
of any change (i) in any Loan Party's name, (ii) in the jurisdiction of
incorporation or organization of any Loan Party, (iii) in any office in which
any Loan Party maintains books or records relating to Collateral owned by it,
or (iv) in any Loan Party's organizational identification number. Holdings and
the Borrower also agree to promptly provide the Administrative Agent with
certified organizational documents reflecting any of the changes described in
the preceding sentence. Holdings and the Borrower agree not to effect or permit
any change referred to in the preceding sentence unless all filings have been
made under the Uniform Commercial Code or otherwise that are required in order
for the Administrative Agent, for the benefit of the Lenders, to continue at
all times following such change to have a valid, legal and perfected security
interest in all the Collateral. The Borrower also agrees promptly to notify the
Administrative Agent if any material portion of the Collateral is damaged or
destroyed.
(b) Each year, at the time of delivery of annual financial
statements with respect to the preceding fiscal year pursuant to clause (a) of
Section 5.01, the Borrower shall deliver to the Administrative Agent a
certificate of a Financial Officer and the chief legal officer of the Borrower
(i) setting forth the information required pursuant to the Perfection
Certificate or confirming that there has been no change in such information
since the date of the Perfection Certificate delivered on the Effective Date
(as updated on the Delayed Draw Funding Date) or the date of the most recent
certificate delivered pursuant to this Section and (ii) certifying that all
Uniform Commercial Code financing statements (including fixture filings, as
applicable) or other appropriate filings, recordings or registrations,
including all refilings, rerecordings and reregistrations, containing a
description of the Collateral have been filed of record in each governmental,
municipal or other appropriate office in each jurisdiction identified pursuant
to clause (i) above to the extent necessary to protect and perfect the security
interests under the Collateral Agreement for a period of not less than 18
months after the date of such certificate (except as noted therein with respect
to any continuation statements to be filed within such period). Each
certificate delivered pursuant to this Section 5.03(b) shall identify in the
format of Schedule III to the Collateral Agreement all Intellectual Property
(as defined in the Collateral Agreement) in existence on the date thereof and
then not listed on such Schedule or previously so identified.
SECTION 5.04. EXISTENCE; CONDUCT OF BUSINESS. Each of Holdings
and the Borrower will, and will cause each of the Subsidiaries to, do or cause
to be done all things necessary to preserve, renew and keep in full force and
effect its legal existence and the rights, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its business; PROVIDED that the foregoing shall not prohibit any
merger, consolidation, liquidation or dissolution permitted under Section 6.03.
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SECTION 5.05. PAYMENT OF OBLIGATIONS. Each of Holdings and the
Borrower will, and will cause each of the Subsidiaries to, pay its Material
Indebtedness and other material obligations, including Tax liabilities, on or
before the time that the same shall become delinquent or in default, except
where (a) the validity or amount thereof is being contested in good faith by
appropriate proceedings, (b) Holdings, the Borrower or such Subsidiary has set
aside on its books adequate reserves with respect thereto to the extent
required by GAAP, (c) such contest effectively suspends collection of the
contested obligation and the enforcement of any Lien securing such obligation
and (d) the failure to make payment pending such contest could not reasonably
be expected to result in a Material Adverse Effect.
SECTION 5.06. MAINTENANCE OF PROPERTIES. Each of Holdings and
the Borrower will, and will cause each of the Subsidiaries to, keep and
maintain all property material to the conduct of its business in good working
order and condition, ordinary wear and tear excepted.
SECTION 5.07. INSURANCE. Each of Holdings and the Borrower
will, and will cause each of the Subsidiaries to, maintain, with financially
sound and reputable insurance companies (a) insurance in such amounts (with no
greater risk retention) and against such risks as are customarily maintained by
companies of established repute engaged in the same or similar businesses
operating in the same or similar locations and (b) all insurance required to be
maintained pursuant to the Security Documents. The Borrower will furnish to the
Administrative Agent, promptly following its request, information in reasonable
detail as to the insurance so maintained.
SECTION 5.08. CASUALTY AND CONDEMNATION. The Borrower (a) will
furnish to the Administrative Agent and each Lender, through the Administrative
Agent, prompt written notice of any casualty or other insured damage to any
material portion of the Collateral or the commencement of any action or
proceeding for the taking of any material portion of the Collateral or interest
therein under power of eminent domain or by condemnation or similar proceeding
and (b) will ensure that the Net Proceeds of any such event (whether in the
form of insurance proceeds, condemnation awards or otherwise) are collected and
applied in accordance with the applicable provisions of the Security Documents.
SECTION 5.09. BOOKS AND RECORDS; INSPECTION AND AUDIT RIGHTS.
Each of Holdings and the Borrower will, and will cause each of the Subsidiaries
to, keep proper books of record and account in which full, true and correct
entries are made of all dealings and transactions in relation to its business
and activities. Each of Holdings and the Borrower will, and will cause each of
the Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice, to visit and
inspect its properties during normal business hours, to examine and make
extracts from its books and records, and to discuss its affairs, finances and
condition with its officers and independent accountants, all at such reasonable
times and as often as reasonably requested.
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SECTION 5.10. COMPLIANCE WITH LAWS. Each of Holdings and the
Borrower will, and will cause each of the Subsidiaries to, comply with all
laws, rules, regulations and orders of any Governmental Authority applicable to
it or its property, including Environmental Laws, except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect. SECTION 5.11. USE OF PROCEEDS AND LETTERS
OF CREDIT. The proceeds of the Term Loans, together with cash on hand and the
proceeds of the issuance of the Senior Subordinated Notes, will be used only
for the payment of (a) all outstanding indebtedness of the Borrower and its
Subsidiaries under the Existing Credit Agreement, (b) the AmSan Acquisition
Consideration, (c) the consideration payable in connection with the Debt Tender
Offer and (d) fees and expenses in connection with the foregoing. The proceeds
of the Revolving Loans will be used only for general corporate purposes in the
ordinary course of the Borrower's business, including Permitted Acquisitions;
PROVIDED that no more than $70,000,000 (plus the amount of any Incremental
Revolving Commitments) of Revolving Loans may be used to effect Permitted
Acquisitions as provided in Section 6.04(a). The proceeds of the Swingline
Loans will be used only for general corporate purposes in the ordinary course
of the Borrower's business. No part of the proceeds of any Loan and no Letter
of Credit will be used, whether directly or indirectly, for any purpose that
entails a violation of any of the Regulations of the Board, including
Regulations T, U and X. Letters of Credit will be issued only for general
corporate purposes.
SECTION 5.12. ADDITIONAL SUBSIDIARIES. If any additional
Subsidiary is formed or acquired after the Effective Date, the Borrower will,
within three Business Days after such Subsidiary is formed or acquired, notify
the Administrative Agent and the Lenders (through the Administrative Agent)
thereof and cause the Collateral and Guarantee Requirement to be satisfied with
respect to such Subsidiary (if it is a Subsidiary Loan Party) and with respect
to any Equity Interest in or Indebtedness of such Subsidiary owned by or on
behalf of any Loan Party (except for Equity Interests in any Foreign Subsidiary
other than up to 65% of the outstanding voting Equity Interests and 100% of the
nonvoting Equity Interests of a Foreign Subsidiary that is owned directly by a
Loan Party) and cause a completed supplement to the Perfection Certificate,
dated as of the date on which the Collateral and Guarantee Requirement is
satisfied with respect to such Subsidiary, containing all information with
respect to such Subsidiary as would be required in the Perfection Certificate
with respect to a Grantor (as defined therein), or otherwise in form and
substance satisfactory to the Administrative Agent, and signed by an executive
officer or Financial Officer of the Borrower, together with all attachments
contemplated thereby, to be delivered to the Administrative Agent.
SECTION 5.13. FURTHER ASSURANCES. (a) Each of Holdings and the
Borrower will, and will cause each Subsidiary Loan Party to, 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, deeds of trust and other documents),
which may be required under any applicable law, or which the Administrative
Agent or the Required Lenders may reasonably request, to cause the Collateral
and Guarantee Requirement to be and remain
66
satisfied, all at the expense of the Loan Parties. The Borrower also agrees to
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.
(b) If any material assets (including any owned real property
or improvements thereon or any interest therein) are acquired by the Borrower
or any Subsidiary Loan Party after the Effective Date (other than assets
constituting Collateral under the Collateral Agreement that become subject to
the Lien of the Collateral Agreement upon acquisition thereof), the Borrower
will, within five Business Days after such material asset is acquired, notify
the Administrative Agent and the Lenders (through the Administrative Agent)
thereof, and, if requested by the Administrative Agent or the Required Lenders,
the Borrower will cause such assets to be subjected to a Lien securing the
Obligations and will 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; PROVIDED that
owned real property or improvements thereon acquired by the Borrower or any
Subsidiary Loan Party after the Effective Date shall not be required to be
subjected to a Lien securing the Obligations unless the book value or market
value of such real property and improvements is greater than $5,000,000.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall
have been paid in full and all Letters of Credit shall have expired or
terminated and all LC Disbursements shall have been reimbursed, each of the
Holdings and the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. INDEBTEDNESS; CERTAIN EQUITY SECURITIES. (a)
Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to,
create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) in the case of the Borrower, the Existing Senior
Subordinated Notes in an aggregate principal amount not to exceed (x)
the aggregate principal amount of the Existing Senior Subordinated
Notes outstanding immediately following consummation of the Debt Tender
Offer less (y) the aggregate principal amount of Existing Senior
Subordinated Notes redeemed, repurchased or retired pursuant to Section
6.08 (and extensions, renewals and replacements of any such Existing
Senior Subordinated Notes that do not increase the outstanding
principal amount thereof (plus accrued and unpaid interest thereon) or
result in an earlier maturity date or decreased weighted average life
thereof and that do not have terms less
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favorable to the Lenders and the Borrower than the Existing Senior
Subordinated Notes);
(iii) in the case of the Borrower, the Senior Subordinated
Notes in an aggregate principal amount not to exceed (x) $200,000,000
less (y) the aggregate principal amount of Senior Subordinated Notes
redeemed, repurchased or retired pursuant to Section 6.08 (and
extensions, renewals and replacements of any such Senior Subordinated
Notes that do not increase the outstanding principal amount thereof
(plus accrued and unpaid interest thereon) or result in an earlier
maturity date or decreased weighted average life thereof and that do
not have terms less favorable to the Lenders and the Borrower than the
Senior Subordinated Notes);
(iv) Indebtedness existing on the Effective Date (other than
the Existing Senior Subordinated Notes and the Senior Subordinated
Notes) and set forth in Schedule 6.01 and extensions, renewals and
replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof or result in an earlier maturity
date or decreased weighted average life thereof;
(v) Indebtedness of the Borrower to Holdings or any Subsidiary
and of any Subsidiary to Holdings, the Borrower or any other
Subsidiary; PROVIDED that (A) Indebtedness of any Subsidiary that is
not a Loan Party to the Borrower or any Subsidiary Loan Party shall be
subject to Section 6.04 and (B) Indebtedness of the Borrower to any
Subsidiary and Indebtedness of any Subsidiary Loan Party to any
Subsidiary that is not a Subsidiary Loan Party shall be subordinated to
the Obligations on terms reasonably satisfactory to the Administrative
Agent;
(vi) Guarantees by Holdings, the Borrower of Indebtedness of
any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or
any other Subsidiary; PROVIDED that (A) the Indebtedness so guaranteed
is permitted by this Section, (B) Guarantees by Holdings, the Borrower
or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is
not a Loan Party shall be subject to Section 6.04 and (C) the
Subordinated Debt shall not be guaranteed by any Subsidiary that is not
a Subsidiary Loan Party and any such Guarantee shall be subordinated to
the Obligations of the applicable Subsidiary on the same terms as the
Subordinated Debt is subordinated to its Obligations;
(vii) Indebtedness of the Borrower or any Subsidiary incurred
to finance the acquisition, construction or improvement of any fixed or
capital assets, including Capital Lease Obligations (other than Capital
Lease Obligations incurred pursuant to clause (xi) of this Section
6.01(a)), and any Indebtedness assumed in connection with the
acquisition of any such assets or secured by a Lien on any such assets
prior to the acquisition thereof, and extensions, renewals and
replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof or result in an earlier maturity
date or decreased weighted average life thereof; PROVIDED that (A) such
Indebtedness is incurred prior to or within 180 days after such
acquisition or the completion of such construction or improvement and
(B) the aggregate principal amount of
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Indebtedness permitted by this clause (vi) shall not exceed $20,000,000
at any time outstanding;
(viii) (A) Indebtedness of any Person that becomes a Subsidiary
after the date hereof; PROVIDED that (1) such Indebtedness exists at
the time such Person becomes a Subsidiary and is not created in
contemplation of or in connection with such Person becoming a
Subsidiary and (2) the aggregate principal amount of Indebtedness
permitted by this clause (viii) shall not exceed $30,000,000 at any
time outstanding and (B) any refinancings, renewals and replacements of
any such Indebtedness pursuant to the preceding clause (A) that do not
increase the outstanding principal amount thereof or result in an
earlier maturity date or decreased weighted average life thereof;
(ix) in the case of the Borrower, (A) the Additional Senior
Subordinated Notes; PROVIDED that the proceeds of such Additional
Senior Subordinated Notes shall be used (1) if no Default has occurred
and is continuing or would result therefrom, to finance a Permitted
Acquisition pursuant to Section 6.04(a), (2) to repay Term Loans or (3)
to repay Revolving Loans (but not to reduce Commitments) and (B)
extensions, renewals and replacements of any such Additional Senior
Subordinated Notes that do not increase the outstanding principal
amount thereof or result in an earlier maturity date or decreased
weighted average life thereof and that do not have terms less favorable
to the Lenders and the Borrower than the Additional Senior Subordinated
Notes;
(x) [Intentionally Omitted.]
(xi) Indebtedness of the Borrower or any Subsidiary consisting
of Capital Lease Obligations incurred in connection with the sale and
leaseback transactions relating to the Specified Properties permitted
by Section 6.06(b);
(xii) the Subordinated Promissory Note and any pledge of the
Equity Interests of Buyers Access owned by Glenwood Acquisition LLC to
secure the Subordinated Promissory Note;
(xiii) other unsecured Indebtedness in an aggregate principal
amount not exceeding $30,000,000 at any time outstanding; PROVIDED that
the aggregate principal amount of Indebtedness of Subsidiaries that are
not Loan Parties permitted by this clause (xiii) shall not exceed
$10,000,000 at any time outstanding; and
(xiv) letters of credit or bank guarantees (other than Letters
of Credit issued pursuant to Section 2.05) having an aggregate face
amount not in excess of $10,000,000.
(b) Neither Holdings nor the Borrower will, nor will they
permit any Subsidiary to, issue any preferred Equity Interests other than
Qualified Preferred Stock issued to the Permitted Investors.
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SECTION 6.02. LIENS. Neither Holdings nor the Borrower will,
nor will they permit any Subsidiary to, create, incur, assume or permit to
exist any Lien on any property or asset now owned or hereafter acquired by it,
or assign or sell any income or revenues (including accounts receivable) or
rights in respect of any thereof, except:
(a) Liens created under the Loan Documents;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 6.02; PROVIDED
that (i) such Lien shall not apply to any other property or asset of the
Borrower or any Subsidiary and (ii) such Lien shall secure only those
obligations which it secures on the date hereof and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount
thereof (plus accrued and unpaid interest thereon);
(d) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date hereof
prior to the time such Person becomes a Subsidiary; PROVIDED that (i) such Lien
is not created in contemplation of or in connection with such acquisition or
such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not
apply to any other property or assets of the Borrower or any Subsidiary and
(iii) such Lien shall secure only those obligations which it secures on the
date of such acquisition or the date such Person becomes a Subsidiary, as the
case may be, and extensions, renewals and replacements thereof that do not
increase the outstanding principal amount thereof;
(e) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary; PROVIDED that (i) such security
interests secure Indebtedness permitted by clause (vi) of Section 6.01(a), (ii)
such security interests and the Indebtedness secured thereby are incurred prior
to or within 90 days after such acquisition or the completion of such
construction or improvement, (iii) the Indebtedness secured thereby does not
exceed the cost of acquiring, constructing or improving such fixed or capital
assets and (iv) such security interests shall not apply to any other property
or assets of the Borrower or any Subsidiary;
(f) Liens that are contractual rights of set-off relating to
deposit accounts in favor of banks and other depositary institutions in the
ordinary course of business;
(g) Liens of a collection bank arising in the ordinary course
of business under Section 4-210 of the Uniform Commercial Code in effect in the
relevant jurisdiction covering only the items being collected upon;
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(h) Liens disclosed on any title insurance policy in respect of
a Mortgaged Property reasonably approved by the Administrative Agent or any
Lien of any lessee reasonably approved by the Administrative Agent;
(i) any Lien arising out of the pledge of the Equity Interests
owned by Glenwood Acquisition LLC in Buyers Access permitted by clause (xi) of
Section 6.01(a);
(j) any interest or title of a lessor under any lease entered
into by the Borrower and any Lien arising from precautionary Uniform Commercial
Code financing statements (or equivalent filings, registrations or agreements
in foreign jurisdictions) relating to and covering only equipment leased in
accordance with any Loan Document;
(k) Liens arising out of sale and leaseback transactions
relating to the Specified Properties permitted by Section 6.06(b);
(l) Liens securing obligations in respect of trade-related
letters of credit permitted under Section 6.01(xiii), which Liens shall cover
only the goods (or the documents of title in respect of such goods) financed by
such letters of credit and the proceeds and products thereof; and
(m) Liens on inventory to secure trade accounts payable owed to
General Electric Company and its affiliates in the ordinary course of business,
PROVIDED that (a) such accounts payable are not overdue and, in any event, are
paid within 8 Business Days after incurrence, (b) the aggregate amount of such
accounts payable that are secured by such Liens and outstanding at any one time
shall not exceed $10,000,000, (c) such Liens are created pursuant to
arrangements in existence on December 17, 2004, or entered into after such date
on terms no less favorable to the Borrower and the Subsidiaries than those in
existence on such date and (d) the inventory subject to such Liens was
manufactured by, or sold under a trade name or trademark used by, General
Electric Company or its affiliates.
Notwithstanding anything herein to the contrary, the Borrower shall not permit
to exist any Lien on any Specified Property prior to the date on which a
Mortgage is granted on such Specified Property.
SECTION 6.03. FUNDAMENTAL CHANGES. (a) Neither Holdings nor the
Borrower will, nor will they permit any Subsidiary to, merge into or
consolidate with any other Person, or permit any other Person to merge into or
consolidate with it, or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing (i) the Borrower may merge with and into Holdings,
(ii) any Person may merge into the Borrower in a transaction in which the
surviving entity is a Person organized or existing under the laws of the United
States of America, any State thereof or the District of Columbia and, if such
surviving entity is not the Borrower, such Person expressly assumes, in
writing, all of the obligations of the
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Borrower under the Loan Documents, (iii) any Person may merge into any
Subsidiary in a transaction in which the surviving entity is a Subsidiary and,
if any party to such merger is a Subsidiary Loan Party, is a Subsidiary Loan
Party, and (iv) any Subsidiary (other than a Subsidiary Loan Party) may
liquidate or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders; PROVIDED that any such merger
involving a Person that is not a wholly owned Subsidiary immediately prior to
such merger shall not be permitted unless also permitted by Section 6.04.
(b) The Borrower will not, and Holdings and the Borrower will
not permit any of the Subsidiaries to, engage to any material extent in any
business other than businesses of the type conducted by the Borrower and the
Subsidiaries on the Effective Date and businesses reasonably related thereto.
(c) Glenwood Acquisition LLC will not engage in any business or
activity other than the ownership of Equity Interests in Buyers Access and
activities incidental thereto. Glenwood Acquisition LLC will not own or acquire
any assets (other than Equity Interests in Buyers Access, cash and Permitted
Investments) or incur any liabilities (other than liabilities under the Loan
Documents, liabilities in respect of Guarantees permitted by Section 6.01,
liabilities imposed by law, including tax liabilities, and other liabilities
incidental to its existence and permitted business and activities).
(d) Holdings will not engage in any business or activity, or
own or acquire any assets or incur any liabilities, other than in connection
with (i) the ownership of all the outstanding Equity Interests in the Borrower,
(ii) the maintenance of its corporate existence as a public company, (iii) the
consummation of the Transactions (including the payment of customary fees and
expenses in connection therewith), (iv) the performance of its obligations
under and in connection with the Loan Documents, (v) the consummation of any
offering of its Equity Interests permitted under the terms of this Agreement
(including the payment of customary fees and expenses in connection therewith),
(vi) the ordinary course grant of common stock to employees and directors
pursuant to the terms of any employee benefit or stock option plan; PROVIDED
that, in the event of any merger of the Borrower and Holdings pursuant to
clause (a) above, Holdings may engage in the activities permitted under clause
(b) above and (vii) investments in its subsidiaries as permitted by Section
6.01 and Section 6.04.
SECTION 6.04. INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND
ACQUISITIONS. Neither Holdings or the Borrower will, nor will they permit any
of the Subsidiaries to, purchase, hold or acquire (including pursuant to any
merger with any Person that was not a wholly owned Subsidiary prior to such
merger) any Equity Interests in or evidences of indebtedness or other
securities (including any option, warrant or other right to acquire any of the
foregoing) of, make or permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist any investment or any other interest
in, any other Person, or purchase or otherwise acquire (in one transaction or a
series of transactions) any assets of any other Person constituting a business
unit, except:
72
(a) Permitted Acquisitions and the AmSan Acquisition; PROVIDED
that the aggregate cash consideration paid or required to be paid by the
Borrower or a wholly owned Subsidiary in connection with each Permitted
Acquisition does not exceed the sum of (A) Retained Excess Cash Flow for the
fiscal year ended immediately prior to the date of such Permitted Acquisition
(to the extent not previously applied to repurchase Subordinated Debt, to make
Permitted Acquisitions or to make Capital Expenditures), plus (B) cash
generated in the ordinary course of the business of the Borrower and the
Subsidiaries, plus (C) the Net Proceeds from any issuance of Equity Interests
of Holdings (other than in connection with the Initial Public Offering) during
the period of four consecutive fiscal quarters ended immediately prior to the
date of such Permitted Acquisition (to the extent not previously applied to
repurchase Subordinated Debt, to make Permitted Acquisitions, to make Capital
Expenditures or to make investments under Section 6.04(m)), plus (D) (i)
borrowings under the Revolving Facility in an amount equal to (x) $70,000,000
(plus the amount of any Incremental Revolving Commitments), minus (y) the
aggregate principal amount of Revolving Loans outstanding immediately prior to
the date of such Permitted Acquisition the proceeds of which were applied
previously to finance Permitted Acquisitions, plus (E) the proceeds from any
Incremental Extensions of Credit (to the extent not previously applied to make
Permitted Acquisitions or to prepay Revolving Loans), plus (F) in the event
that, on a Pro Forma Basis as of the last day of most recently ended fiscal
quarter of the Borrower for which financial statements are available, the Net
Leverage Ratio is more than 0.25 below the maximum permitted Net Leverage Ratio
as of the end of such fiscal quarter, as set forth in Section 6.13, the Net
Proceeds of Additional Senior Subordinated Notes;
(b) Permitted Investments;
(c) investments existing on the date hereof and set forth on
Schedule 6.04;
(d) investments by Holdings, the Borrower and the Subsidiaries
in Equity Interests in their respective subsidiaries; PROVIDED that (i) any
such Equity Interests held by a Loan Party shall be pledged pursuant to the
Collateral Agreement (subject to the limitations applicable to Equity Interests
of a Foreign Subsidiary or a Joint Venture referred to in the definition of the
term "Collateral and Guarantee Requirement") and (ii) the aggregate amount of
investments by Loan Parties in, and loans and advances by Loan Parties to, and
Guarantees by Loan Parties of Indebtedness of, Subsidiaries that are not Loan
Parties (including all such investments, loans, advances and Guarantees
existing on the Effective Date) shall not exceed $20,000,000 at any time
outstanding;
(e) loans or advances made by Holdings or the Borrower to any
Subsidiary and made by any Subsidiary to the Borrower or any other Subsidiary;
PROVIDED that (i) any such loans and advances made by a Loan Party shall be
evidenced by a promissory note pledged pursuant to the Collateral Agreement and
(ii) the amount of such loans and advances made by Loan Parties to Subsidiaries
that are not Loan Parties shall be subject to the limitation set forth in
clause (d)(ii) above;
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(f) Guarantees constituting Indebtedness permitted by Section
6.01; PROVIDED that (i) a Subsidiary shall not Guarantee the Subordinated Debt
unless (A) such Subsidiary also has Guaranteed the Obligations pursuant to the
Collateral Agreement and (B) such Guarantee of the Subordinated Debt is
subordinated to such Guarantee of the Obligations on terms no less favorable to
the Lenders than the subordination provisions of the Subordinated Debt and (ii)
the aggregate principal amount of Indebtedness of Subsidiaries that are not
Loan Parties that is Guaranteed by any Loan Party shall be subject to the
limitation set forth in clause (d)(ii) above;
(g) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(h) receivables owing to the Borrower or a Subsidiary if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; PROVIDED that such
trade terms may include such concessionary trade terms as the Borrower or any
such Subsidiary deems reasonable under the circumstances;
(i) investments consisting of Equity Interests, obligations,
securities or other property received in settlement of delinquent accounts in
the ordinary course of business and owing to the Borrower or any Subsidiary or
in satisfaction of judgments;
(j) investments in payroll, travel and similar advances to
cover matters that are expected at the time of such advances ultimately to be
treated as expenses for accounting purposes and that are made in the ordinary
course of business;
(k) loans or advances to employees made in the ordinary course
of business of the Borrower or a Subsidiary not exceeding $1,000,000 in the
aggregate outstanding at any one time;
(l) investments in the form of Swap Agreements permitted under
Section 6.07;
(m) investments by the Borrower or any Subsidiary financed with
the Net Proceeds from any issuance of Equity Interests of Holdings during the
period of four consecutive fiscal quarters ended immediately prior to the date
of such investment (to the extent not previously applied to repurchase
Subordinated Debt, to make Permitted Acquisitions, to make Capital Expenditures
or to make investments under this clause (m)); and
(n) other investments in an aggregate amount, as valued at cost
at the time each such investment is made, not exceeding $30,000,000 in the
aggregate for all such investments made from and after the Effective Date plus
an amount equal to any repayments, interest, returns, profits, distributions,
income and similar amounts actually received in cash in respect of any such
investment (which
74
amount shall not exceed the amount of such investment valued at cost at the
time such investment was made).
SECTION 6.05. ASSET SALES. Neither Holdings nor the Borrower
will, nor will they permit any of the Subsidiaries to, sell, transfer, lease or
otherwise dispose of any asset, including any Equity Interest owned by it, nor
will Holdings or the Borrower permit any Subsidiary to issue any additional
Equity Interest in such Subsidiary (other than to the Borrower or another
Subsidiary in compliance with Section 6.04), except:
(a) sales, transfers and dispositions of inventory, used,
obsolete, worn out or surplus equipment or property and Permitted Investments
in the ordinary course of business;
(b) sales, transfers and dispositions to the Borrower or a
Subsidiary; PROVIDED that any such sales, transfers or dispositions involving a
Subsidiary that is not a Loan Party shall be made in compliance with Section
6.09;
(c) sales, transfers and dispositions of the Specified
Properties;
(d) sales, transfers and dispositions of accounts receivable in
connection with the compromise, settlement or collection thereof;
(e) sales, transfers and dispositions of investments permitted
by Section 6.04(g);
(f) within 360 days after the consummation of a Permitted
Acquisition, the sale, transfer or disposition of assets acquired in connection
with such Permitted Acquisition and not required in the operation of the
business of the Borrower or any of the Subsidiaries;
(g) sales, transfers and dispositions of Equity Interests in
Buyers Access;
(h) sales, transfers and other dispositions of assets (other
than Equity Interests in a Subsidiary unless 100% of such Subsidiary) that are
not permitted by any other clause of this Section; PROVIDED that the aggregate
fair market value of all assets sold, transferred or otherwise disposed of in
reliance upon this clause (d) shall not exceed $5,000,000 during any fiscal
year of the Borrower;
(i) sales, transfers and dispositions of individual or groups
of related assets with a fair value of less than $1,000,000; PROVIDED that
sales, transfers and dispositions of individual or groups of related assets
pursuant to this clause (i) shall not exceed $10,000,000 in the aggregate
during the term of this Agreement; and
(j) sales of a non-core line of business for a purchase price
not to exceed $10,000,000; PROVIDED that sales of non-core lines of business
pursuant to this clause (j) shall not exceed $25,000,000 in the aggregate
during the term of this Agreement.
75
PROVIDED that all sales, transfers, leases and other dispositions permitted
hereby (other than those permitted by clauses (b), (d), (g) and (i) above)
shall be made for fair value and for at least 80% cash consideration.
SECTION 6.06. SALE AND LEASEBACK TRANSACTIONS. Neither Holdings
nor the Borrower will, and nor will they permit any of the Subsidiaries to,
enter into any arrangement, directly or indirectly, 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 sold or transferred, except for (a) any
such sale of any fixed or capital assets that is made for cash consideration in
an amount not less than the cost of such fixed or capital asset and is
consummated within 90 days after Holdings, the Borrower or such Subsidiary
acquires or completes the construction of such fixed or capital asset and (b)
any transaction involving the Specified Properties.
SECTION 6.07. SWAP AGREEMENTS. Neither Holdings nor the
Borrower will, and nor will they permit any of the Subsidiaries to, enter into
any Swap Agreement, except (a) Swap Agreements entered into to hedge or
mitigate risks to which Holdings, the Borrower or any Subsidiary has actual
exposure (other than those in respect of Equity Interests of Holdings, the
Borrower or any of the Subsidiaries) and (b) Swap Agreements entered into in
order to effectively cap, collar or exchange interest rates (from fixed to
floating rates, from one floating rate to another floating rate or otherwise)
with respect to any interest-bearing liability or investment of Holdings, the
Borrower or any Subsidiary.
SECTION 6.08. RESTRICTED PAYMENTS; CERTAIN PAYMENTS OF
INDEBTEDNESS. (a) The Borrower will not, nor will it permit any Subsidiary to,
declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except (i) each of Holdings and the Borrower may declare and pay dividends with
respect to its common stock, payable solely in additional shares of its common
stock, and Holdings may declare and pay dividends with respect to its preferred
stock, payable solely in additional shares of such preferred stock or in shares
of its common stock, (ii) Subsidiaries may declare and pay dividends ratably
with respect to their capital stock, (iii) the Borrower may make Restricted
Payments to Holdings to permit Holdings to make payments pursuant to and in
accordance with stock option plans or other benefit plans for management or
employees of Holdings, the Borrower and the Subsidiaries in an aggregate amount
not to exceed $7,500,000 during any fiscal year, (iv) Holdings may (A) redeem
the Qualified Preferred Stock pursuant to a conversion into common stock of
Holdings and (B) make any Restricted Payments in connection with such
conversion, in each case, in accordance with the terms of the Qualified
Preferred Stock (v) the Borrower may make Restricted Payments to Holdings at
such times and in such amounts (A) not exceeding $3,000,000 during any fiscal
year, as shall be necessary to permit Holdings to discharge its corporate
overhead (including franchise taxes and directors fees) and other permitted
liabilities and to make payments permitted by Section 6.09 and (B) as shall be
necessary to pay any taxes that are due and payable by Holdings as part of a
consolidated group that includes the Borrower, to the extent that such taxes
relate to the operations of the Borrower and the Subsidiaries, (vi) so long as
76
no Default shall have occurred and be continuing or would result therefrom,
Holdings may repurchase, redeem or retire its outstanding Equity Interests or
make other Restricted Payments (and the Borrower may make Restricted Payments
the proceeds of which are to be used by Holdings to effect such repurchases,
redemptions or retirements or to redeem or repurchase Existing Senior
Subordinated Notes or Senior Subordinated Notes) in an aggregate amount not to
exceed (A) in the event the Net Leverage Ratio on a Pro Forma Basis as of the
last day of the most recently ended fiscal quarter of the Borrower for which
financial statements are available is greater than or equal to 2.00 to 1.00,
(x) $10,000,000 minus (y) the aggregate amount of Restricted Payments and
payments relating to the Subordinated Debt previously made pursuant to this
clause (vi), (B) in the event the Net Leverage Ratio on a Pro Forma Basis as of
the last day of the most recently ended fiscal quarter of the Borrower for
which financial statements are available is less than 2.00 to 1.00 and greater
than or equal to 1.50 to 1.00, (x) $25,000,000 minus (y) the aggregate amount
of Restricted Payments and payments relating to the Subordinated Debt
previously made pursuant to this clause (vi) and (C) in the event the Net
Leverage Ratio on a Pro Forma Basis as of the last day of the most recently
ended fiscal quarter of the Borrower for which financial statements are
available is less than 1.50 to 1.00, (x) $40,000,000 minus (y) the aggregate
amount of Restricted Payments and payments relating to the Subordinated Debt
previously made pursuant to this clause (vi) and (vii) so long as no Default
shall have occurred and be continuing or would result therefrom, Holdings may
make Restricted Payments (and the Borrower may make Restricted Payments the
proceeds of which are used by Holdings to make such payments) in an aggregate
amount not to exceed $2,000,000 during any fiscal year.
(b) Neither Holdings nor the Borrower will, nor will they
permit any Subsidiary to, make or agree 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 any Indebtedness, 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, cancelation or termination of
any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal
payments as and when due in respect of any Indebtedness, other than
payments in respect of the Subordinated Debt or the Subordinated
Promissory Note prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by
Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets
securing such Indebtedness;
(v) [intentionally omitted]
00
(xx) xxxxxxxxxx, xxxxxxxxxx and retirement of Subordinated Debt
(including any premium (if any) and accrued and unpaid interest thereon
to the date of such redemption, repurchase or retirement) with the Net
Proceeds of any issuance of Equity Interests of Holdings during the
period of four consecutive fiscal quarters ended immediately prior to
the date of such redemption, repurchase or retirement (to the extent
not previously applied to repurchase Subordinated Debt, to make
Permitted Acquisitions, to make Capital Expenditures or to make
investments under Section 6.04 (m)); and
(vii) redemption, repurchase and retirement of Subordinated
Debt (including any premium (if any) and accrued and unpaid interest
thereon to the date of such redemption or repurchase), at any time
during any fiscal year in an aggregate amount equal to (A) $25,000,000,
plus (B) Retained Excess Cash Flow for the previous fiscal year (to the
extent such Retained Excess Cash Flow has not been applied previously
to make Permitted Acquisitions, to repurchase Subordinated Debt or to
make Capital Expenditures) plus (C) the amount of payments permitted to
be made under Section 6.08(a)(vi).
(c) If, as a result of the receipt of any Net Proceeds by the
Borrower or any Subsidiary in connection with any sale, transfer or other
disposition pursuant to Section 6.05(c) or (g), the Borrower would be required
by the terms of the Senior Subordinated Debt Documents or the terms of any
Additional Senior Subordinated Notes to redeem or repurchase (or to make an
offer to redeem or repurchase) any Existing Senior Subordinated Notes, Senior
Subordinated Notes or Additional Senior Subordinated Notes, then the Borrower
shall, or shall cause one or more of its Subsidiaries to, (i) prepay Term Loans
in accordance with Section 2.11 as if such sale, transfer or disposition
constituted a "Prepayment Event" or (ii) acquire real property, equipment or
other tangible assets, in each case in a manner that will eliminate any
requirement to redeem or repurchase (or to make an offer to redeem or
repurchase) such Existing Senior Subordinated Notes, Senior Subordinated Notes
and Additional Senior Subordinated Notes. Any such prepayment or acquisition
pursuant to this clause (c) shall be made prior to the first day on which the
Borrower would be required to redeem or repurchase (or commence an offer to
redeem or repurchase) Existing Senior Subordinated Notes, Senior Subordinated
Notes or Additional Senior Subordinated Notes under the Senior Subordinated
Debt Documents or the terms of any such Additional Senior Subordinated Notes,
as applicable.
SECTION 6.09. TRANSACTIONS WITH AFFILIATES. Except as set forth
on Schedule 6.09, neither Holdings nor the Borrower will, nor will they permit
any Subsidiary to, sell, lease or otherwise transfer any property or assets to,
or purchase, lease or otherwise acquire any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates, except
(a) transactions in the ordinary course of business that are at prices and on
terms and conditions not less favorable to the Borrower or such Subsidiary than
could be obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among the Borrower and the Subsidiary Loan Parties not
involving any other Affiliate, (c) any investment permitted by Sections
6.04(d)(ii), (e), (f), (m) or (n) or any Restricted Payment permitted by
Section 6.08, (d) customary
78
compensation and reimbursement of expenses of officers and directors of any
Loan Party, including the issuance of Equity Interests of Holdings, in each
case in the ordinary course of business and (e) any sale or disposition of
inventory by the Borrower or any Subsidiary to wholly owned Foreign
Subsidiaries in the ordinary course of business, at a price not less than the
cost of such inventory.
SECTION 6.10. RESTRICTIVE AGREEMENTS. Neither Holdings nor the
Borrower will, nor will they permit any Subsidiary to, directly or indirectly,
enter into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of Holdings,
the Borrower or any Subsidiary to create, incur or permit to exist any Lien
upon any of its property or assets, or (b) the ability of any Subsidiary to pay
dividends or other distributions with respect to any shares of its capital
stock or to make or repay loans or advances to the Borrower or any other
Subsidiary or to Guarantee Indebtedness of the Borrower or any other
Subsidiary; PROVIDED that (i) the foregoing shall not apply to restrictions and
conditions imposed by law or by any Loan Document or Senior Subordinated Debt
Document, or the terms of any Additional Senior Subordinated Notes (to the
extent such restrictions or conditions are no more restrictive than those with
respect to Senior Subordinated Notes), (ii) the foregoing shall not apply to
restrictions and conditions existing on or about the date hereof and identified
on Schedule 6.10 (but shall apply to any extension or renewal of, or any
amendment or modification expanding the scope of, any such restriction or
condition), (iii) the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary pending
such sale, provided such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder, (iv) clause
(a) of the foregoing shall not apply to restrictions or conditions imposed by
any agreement relating to secured Indebtedness permitted by this Agreement if
such restrictions or conditions apply only to the property or assets securing
such Indebtedness and (v) clause (a) of the foregoing shall not apply to
customary provisions in leases restricting the assignment thereof.
SECTION 6.11. AMENDMENT OF MATERIAL DOCUMENTS. Neither Holdings
nor the Borrower will, nor will they permit any Subsidiary to, amend, modify or
waive any of its rights under (a) any Senior Subordinated Debt Document, (b)
the Subordinated Promissory Note, (c) its certificate of incorporation, by-laws
or other organizational documents (other than to change its name) or (d) the
terms of any Additional Senior Subordinated Notes, except for such amendments,
modifications or waivers that could not be reasonably expected to effect any
change materially adverse to the interests and rights of the Administrative
Agent or the Lenders under any Loan Document.
SECTION 6.12. INTEREST EXPENSE COVERAGE RATIO. The Borrower
will not permit the ratio of (a) Consolidated EBITDA to (b) Consolidated Cash
Interest Expense, in each case on the last day of any period of four
consecutive fiscal quarters ending on or about any date set forth below, to be
less than the ratio set forth below opposite such period:
79
PERIOD RATIO
------ -----
September 29, 2006 2.75 to 1.00
December 29, 2006 2.75 to 1.00
March 30, 2007 2.75 to 1.00
June 29, 2007 2.75 to 1.00
September 28, 2007 2.75 to 1.00
December 28, 2007 3.00 to 1.00
March 28, 2008 3.00 to 1.00
June 27, 2008 3.00 to 1.00
September 26, 2008 3.00 to 1.00
December 26, 2008 3.00 to 1.00
March 27, 2009 3.00 to 1.00
June 26, 2009 3.00 to 1.00
September 25, 2009 3.00 to 1.00
December 25, 2009 3.00 to 1.00
March 26, 2010 3.00 to 1.00
June 25, 2010 3.00 to 1.00
September 24, 2010 3.00 to 1.00
December 31, 2010 3.00 to 1.00
Thereafter 3.00 to 1.00
SECTION 6.13. NET LEVERAGE RATIO. The Borrower will not permit the Net Leverage
Ratio as of the last day of any fiscal quarter ending on or about any date set
forth below to exceed the ratio set forth opposite such period:
PERIOD RATIO
------ -----
September 29, 2006 4.50 to 1.00
December 29, 2006 4.50 to 1.00
March 30, 2007 4.00 to 1.00
June 29, 2007 4.00 to 1.00
September 28, 2007 4.00 to 1.00
December 28, 2007 4.00 to 1.00
March 28, 2008 4.00 to 1.00
June 27, 2008 4.00 to 1.00
September 26, 2008 4.00 to 1.00
December 26, 2008 3.50 to 1.00
March 27, 2009 3.50 to 1.00
June 26, 2009 3.50 to 1.00
September 25, 2009 3.50 to 1.00
December 25, 2009 3.50 to 1.00
March 26, 2010 3.50 to 1.00
June 25, 2010 3.50 to 1.00
September 24, 2010 3.50 to 1.00
December 31, 2010 3.50 to 1.00
Thereafter 3.50 to 1.00
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SECTION 6.14. MAXIMUM CAPITAL EXPENDITURES. (a) The Borrower
will not, nor will it permit any Subsidiary to, incur or make any Capital
Expenditures during any fiscal year in an amount exceeding (i) 2.5% of Net
Sales for such fiscal year, plus (ii) Retained Excess Cash Flow for the
immediately prior fiscal year (to the extent such Retained Excess Cash Flow has
not been applied previously to repurchase Subordinated Debt, make Permitted
Acquisitions or make Capital Expenditures).
(b) The amount of any Capital Expenditures permitted to be made
in respect of any fiscal year shall be increased by the unused amount of
Capital Expenditures that were permitted to be made during the immediately
preceding fiscal year pursuant to Section 6.14(a). Capital Expenditures in any
fiscal year shall be deemed to use, first, the amount for such fiscal year set
forth in Section 6.14(a) and, second, any amount carried forward to such fiscal
year pursuant to this Section 6.14(b).
(c) In addition to the Capital Expenditures permitted pursuant
to the preceding paragraphs (a) and (b), the Borrower and the Subsidiaries may
make additional Capital Expenditures with the Net Proceeds from the issuance of
Equity Interests of Holdings (other than the Initial Public Offering) during
the period of four consecutive fiscal quarters ended immediately prior to the
date of such Capital Expenditure (to the extent not previously applied to
repurchase Subordinated Debt, to make Permitted Acquisitions, to make Capital
Expenditures or to make investments under Section 6.04 (m)).
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("EVENTS OF DEFAULT") shall
occur:
(a) the Borrower shall fail to pay any principal of any Loan or
any reimbursement obligation in respect of any LC Disbursement 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 otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement or any other Loan Document, when and
as the same shall become due and payable, and such failure shall continue
unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or on
behalf of Holdings, the Borrower or any Subsidiary in or in connection with any
Loan Document or any amendment or modification thereof or waiver thereunder, or
in any report, certificate, financial statement or other document furnished
pursuant to or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, shall prove to have been incorrect
in any material respect on or as of the date when made or deemed made;
(d) Holdings or the Borrower shall fail to observe or perform
any covenant, condition or agreement contained in Section 5.02, 5.04 (with
respect to the existence of Holdings and the Borrower) or 5.11 or in Article
VI;
(e) any Loan Party shall fail to observe or perform any
covenant, condition or agreement contained in any Loan Document (other than
those specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Borrower (which notice will be given at the request
of any Lender);
(f) Holdings, the Borrower or any Subsidiary shall fail to make
any payment (whether of principal or interest and regardless of amount) in
respect of any Material Indebtedness, when and as the same shall become due and
payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) 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; PROVIDED that this clause (g) 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;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of Holdings, the Borrower or any Subsidiary or its
debts, or of a substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings, the Borrower or any Subsidiary or
for a substantial part of its assets, and, in any such case, 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 liquidation,
reorganization or other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect, (ii)
consent to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or petition described in clause (h) of this Article,
(iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Holdings, the
Borrower or any Subsidiary or for a substantial part of its assets, (iv) file
an answer admitting the material allegations of a petition filed
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against it in any such proceeding, (v) make a general assignment for the
benefit of creditors or (vi) take any formal action for the purpose of
effecting any of the foregoing;
(j) Holdings, the Borrower or any Subsidiary shall become
unable, admit in writing its inability or fail generally to pay its debts as
they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $15,000,000 shall be rendered against Holdings,
the Borrower, any Subsidiary or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of Holdings, the Borrower
or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the reasonable
opinion of the Required Lenders, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result in an
unsatisfied liability of Holdings, the Borrower and the Subsidiaries in an
aggregate amount exceeding $10,000,000 for all periods;
(m) (i) any Loan Document shall for any reason be asserted by
Holdings, the Borrower or any Subsidiary Loan Party not to be a legal, valid
and binding obligation of any party thereto; (ii) any Lien purported to be
created under any Security Document shall cease to be, or shall be asserted by
any Loan Party not to be, a valid and perfected Lien on any Collateral, with
the priority required by the applicable Security Document, except (A) as a
result of the sale or other disposition of the applicable Collateral in a
transaction permitted under the Loan Documents or (B) as a result of the
Administrative Agent's failure to maintain possession of any stock
certificates, promissory notes or other instruments delivered to it under the
Collateral Agreement or (iii) the Guarantees pursuant to the Security Documents
by 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 hereof) or shall
be asserted by any Subsidiary Loan Party not to be in effect or not to be
legal, valid and binding obligations; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either
or both of the following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all
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fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Banks hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms of the Loan
Documents, together with such actions and powers as are reasonably incidental
thereto.
The bank serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with Holdings, the Borrower or any
Subsidiary or other Affiliate thereof as if it were not the Administrative
Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth in the 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 has occurred and is continuing, (b) the Administrative Agent shall
not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated by the Loan Documents that the Administrative Agent is required to
exercise in writing as directed by the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02), and (c) except as expressly set forth in the Loan
Documents and except for documents, notices and other information to be
provided to the Lenders through the Administrative Agent, the Administrative
Agent shall not have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to Holdings, the Borrower or any
of the Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by
it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of its own gross
negligence or willful misconduct. The Administrative Agent shall not be
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deemed not to have knowledge of any Default unless and until written notice
thereof is given to the Administrative Agent by Holdings, the Borrower or a
Lender, and 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 any Loan Document, (ii) the contents of any
certificate, report or other document delivered thereunder or in connection
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Loan Document, (iv)
the validity, enforceability, effectiveness or genuineness of any Loan Document
or any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere in any Loan Document, other than
to confirm receipt of items expressly required to be delivered to the
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 believed
by it to be genuine and to have been signed or sent 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 be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for 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 perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent
may resign at any time upon 30 days' notice to the Lenders, the Issuing Banks
and the Borrower. Upon any such resignation, the Required Lenders shall have
the right to appoint a successor, which successor shall be approved by the
Borrower in writing, such approval not to be unreasonably withheld. If no
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent
may, on behalf of the Lenders and the Issuing Banks, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New
York, or an Affiliate of any such bank. Upon the acceptance of its appointment
as Administrative Agent hereunder by a successor, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent shall
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be the same as those payable to its predecessor unless otherwise agreed between
the Borrower and such successor. After the Administrative Agent's resignation
hereunder, the provisions of this Article and Section 9.03 shall continue in
effect for the benefit of such retiring Administrative Agent, its sub-agents
and their respective Related Parties in respect of any actions taken or omitted
to be taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or related agreement or any document
furnished hereunder or thereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. (a) Except in the case of notices and
other communications expressly permitted to be given by telephone, 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 telecopy, as follows:
(i) if to the Borrower, to it at 000 X. Xxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxx 00000, Attention of Xxx Xxxxxxxxxxx, Chief
Financial Officer (Telecopy No. (000) 000-0000), with a copy to Xxxx,
Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxx Xxxxxxxx (Telecopy No.
(000) 000-0000;
(ii) if to the Administrative Agent, to JPMorgan Chase Bank,
N.A., Loan and Agency Services Group, 0000 Xxxxxx, 00xx Xxxxx, Xxxxxxx,
Xxxxx 00000, Attention of Xxxxxx Xxxxxxx, Loan and Agency Services
(Telecopy No. (000) 000-0000), with a copy to JPMorgan Chase Bank,
N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxx
Xxxxxx (Telecopy No. (000) 000-0000);
(iii) if to an Issuing Bank, to it at its address (or facsimile
number set forth in its Administrative Questionnaire (unless such
Issuing Bank has specified another address or facsimile number by
notice to the Borrower and the Administrative Agent));
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(iv) if to the Swingline Lender, to it at JPMorgan Chase Bank,
N.A., Loan and Agency Services Group, 0000 Xxxxxx, 00xx Xxxxx, Xxxxxxx,
Xxxxx 00000, Attention of Xxxxxx Xxxxxxx, Loan and Agency Services
(Telecopy No. (000) 000-0000), with a copy to JPMorgan Chase Bank,
N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxx
Xxxxxx (Telecopy No. (000) 000-0000); and
(v) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders hereunder
may be delivered or furnished by electronic communications pursuant to
procedures approved by the Administrative Agent; PROVIDED that the foregoing
shall not apply to notices pursuant to Article II unless otherwise agreed by
the Administrative Agent and the applicable Lender. 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) Any party hereto may change its address or telecopy number
for notices and other communications hereunder by notice to the Administrative
Agent. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 9.02. WAIVERS; AMENDMENTS. (a) No failure or delay by
the Administrative Agent, any Issuing Bank or any Lender in exercising any
right or power hereunder or under any other 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, the
Issuing Banks 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 any Loan Document or consent to
any departure by any Loan Party therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. Without limiting the generality of the foregoing,
the making of a Loan or issuance of a Letter of Credit shall not be construed
as a waiver of any Default, regardless of whether the Administrative Agent, any
Lender or any Issuing Bank may have had notice or knowledge of such Default at
the time.
(b) Except as provided in Section 2.20 with respect to an
Incremental Facility Amendment, neither this Agreement nor any other Loan
Document nor any provision hereof or thereof may be waived, amended or modified
except, in the case of this Agreement, pursuant to an agreement or agreements
in writing entered into by Holdings, the Borrower and the Required Lenders or,
in the case of any other Loan Document, pursuant to an agreement or agreements
in writing entered into by the
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Administrative Agent and the Loan Party or Loan Parties that are parties
thereto, in each case with the consent of the Required Lenders; PROVIDED that
no such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce or forgive the principal amount of
any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce
any fees (including the prepayment fee set forth in Section 2.11(g)) payable
hereunder, without the written consent of each Lender affected thereby, (iii)
postpone the maturity of any Loan, or any scheduled date of payment of the
principal amount of any Term Loan under Section 2.10, or the required date of
reimbursement of any LC Disbursement, or any date for the payment of any
interest or fees (including the prepayment fee set forth in Section 2.11(g))
payable hereunder, or reduce the amount of, waive or excuse any such payment,
postpone the scheduled date of expiration of any Commitment or permit the
expiration date of any Letter of Credit to be after the fifth Business Day
prior to the Revolving Maturity Date, without the written consent of each
Lender affected thereby, (iv) change Section 2.18(b) or (c) in a manner that
would alter the pro rata sharing of payments required thereby, without the
written consent of each Lender, (v) change any of the provisions of this
Section or the percentage set forth in the definition of the term "Required
Lenders" or any other provision of any Loan Document specifying the number or
percentage of Lenders (or Lenders of any Class) required to waive, amend or
modify any rights thereunder or make any determination or grant any consent
thereunder, without the written consent of each Lender (or each Lender of such
Class, as the case may be), (vi) release Holdings or any Subsidiary Loan Party
from its Guarantee under the Collateral Agreement (except as expressly provided
in the Collateral Agreement), or limit its liability in respect of such
Guarantee, without the written consent of each Lender, (vii) release all or
substantially all of the Collateral from the Liens of the Security Documents
(except as expressly provided in the Collateral Agreement), without the written
consent of each Lender, or (viii) change any provisions of any Loan Document in
a manner that by its terms adversely affects the rights in respect of payments
due to Lenders holding Loans of any Class differently than those holding Loans
of any other Class, without the written consent of Lenders holding a majority
in interest of the outstanding Loans and unused Commitments of each adversely
affected Class; PROVIDED FURTHER that (A) no such agreement shall amend, modify
or otherwise affect the rights or duties of the Administrative Agent, any
Issuing Bank or the Swingline Lender without the prior written consent of the
Administrative Agent, such Issuing Bank or the Swingline Lender, as the case
may be, and (B) any waiver, amendment or modification of this Agreement that by
its terms affects the rights or duties under this Agreement of the Revolving
Lenders (but not the Term Loan Lenders) or the Term Loan Lenders (but not the
Revolving Lenders) may be effected by an agreement or agreements in writing
entered into by the Borrower and the requisite percentage in interest of the
affected Class of Lenders that would be required to consent thereto under this
Section if such Class of Lenders were the only Class of Lenders hereunder at
the time. Notwithstanding the foregoing, any provision of this Agreement may be
amended by an agreement in writing entered into by Holdings, the Borrower, the
Required Lenders and the Administrative Agent (and, if their rights or
obligations are affected thereby, the Issuing Banks and the Swingline Lender)
if (i) by the terms of such agreement the Commitment of each Lender not
consenting to the amendment provided for therein shall terminate upon the
effectiveness of such amendment and (ii) at the time such amendment
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becomes effective, each Lender not consenting thereto receives payment in full
of the principal of and interest accrued on each Loan made by it and all other
amounts owing to it or accrued for its account under this Agreement. In
connection with any proposed amendment, modification, waiver or termination (a
"PROPOSED CHANGE") requiring the consent of all affected Lenders, if the
consent of the Required Lenders to such Proposed Change is obtained, but the
consent to such Proposed Change of other Lenders whose consent is required is
not obtained (any such Lender whose consent is not obtained as described in
this Section 9.02(b) being referred to as a "NON-CONSENTING LENDER"), then, so
long as the Lender that is acting as the Administrative Agent is not a
Non-Consenting Lender, at the Borrower's request, any assignee that is
acceptable to the Administrative Agent shall have the right, with the
Administrative Agent's consent, to purchase from such Non-Consenting Lender,
and such Non-Consenting Lender agrees that it shall, upon the Borrower's
request, sell and assign to such assignee, at no expense to such Non-Consenting
Lender (including any processing and recordation fee as may be applicable
pursuant to Section 9.04(b)(ii)(C)), all of the Commitments, Term Loans and
Revolving Exposure of such Non-Consenting Lender for an amount equal to the
principal balance of all Term Loans and Revolving Loans (and funded
participations in Swingline Loans and unreimbursed LC Disbursements) held by
such Non-Consenting Lender and all accrued interest and fees with respect
thereto through the date of sale, such purchase and sale to be consummated
pursuant to an executed Assignment and Assumption in accordance with Section
9.04(b).
SECTION 9.02.A. AMENDMENT FEES. In the event that this
Agreement is amended at any time on or prior to the first anniversary of the
Effective Date and such amendment to this Agreement reduces the Applicable Rate
in respect of any Type of Term Loan, or adds any step-downs to the Applicable
Rate in respect of any Type of Term Loan in a manner favorable to the Borrower,
the Borrower agrees to pay to the Administrative Agent for the account of each
Term Loan Lender a fee in an amount equal to 1.00% of such Lender's Term Loans
outstanding on the effective date of such amendment. Notwithstanding Section
9.02 hereof, this Section 9.02A shall not be waived, amended or modified
without the written consent of each Term Loan Lender adversely affected
thereby. For the avoidance of doubt, in connection with any transaction in
respect of which a fee is paid pursuant to Section 2.11(g), no fee shall be
required to be paid pursuant to this Section 9.02A.
SECTION 9.03. EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Agents and their respective Affiliates (including expenses incurred in
connection with due diligence), including the reasonable fees, charges and
disbursements of counsel for the Agents, in connection with the syndication of
the credit facilities provided for herein, the preparation and administration
of the Loan Documents or any amendments, modifications or waivers of the
provisions thereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by any Issuing Bank in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, any Issuing Bank or any Lender, including the fees,
charges and disbursements of any
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counsel for the Administrative Agent, any Issuing Bank or any Lender, in
connection with the enforcement or protection of its rights in connection with
the Loan Documents, including its rights under this Section, or in connection
with the Loans made or Letters of Credit issued hereunder, including all such
reasonable out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent, each
Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "INDEMNITEE") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the reasonable fees, charges and disbursements of
any counsel for any Indemnitee, incurred by or asserted against any Indemnitee
arising out of, in connection with, or as a result of (i) the execution or
delivery of any Loan Document or any other agreement or instrument contemplated
hereby, the performance by the parties to the Loan Documents of their
respective obligations thereunder or the consummation of the Transactions or
any other transactions contemplated hereby, (ii) any Loan or Letter of Credit
or the use of the proceeds therefrom (including any refusal by an Issuing Bank
to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence or Release of
Hazardous Materials on or from any Mortgaged Property or any other property
currently or formerly owned or operated by the Borrower or any of the
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or any of the Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; PROVIDED that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct
of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent, any Issuing Bank or any
Swingline Lender under paragraph (a) or (b) of this Section, (i) in the case of
amounts required to be paid to the Administrative Agent, each Lender severally
agrees to pay to the Administrative Agent such Lender's pro rata share
(determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount and (ii) in the case of
amounts required to be paid to any Issuing Bank or any Swingline Lender, each
Revolving Lender severally agrees to pay to the applicable Issuing Bank or
applicable Swingline Lender, as the case may be, such Revolving Lender's pro
rata share (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount; PROVIDED that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent, the applicable Issuing Bank or the applicable Swingline
Lender in its capacity as such. For purposes hereof, a Lender's "pro rata
share" shall be determined based upon its share of the sum of the total
Revolving Exposures, outstanding Term Loans and unused Commitments at the time.
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(d) To the extent permitted by applicable law, neither Holdings
nor the Borrower shall assert, and each hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of Credit
or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not
later than three Business Days after written demand therefor.
SECTION 9.04. SUCCESSORS AND ASSIGNS. (a) 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 an Issuing Bank that issues any Letter of Credit), 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
such attempted assignment or transfer by the Borrower without such consent
shall be null and void) and (ii) no Lender may assign or otherwise transfer its
rights or obligations hereunder except in accordance with this Section. 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 any Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of
this Section) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, any Issuing Bank and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) (i) Subject to the conditions set forth in paragraph
(b)(ii) below, any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitments and the Loans at the time owing to it), with the prior
written consent (such consent not to be unreasonably withheld or delayed) 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 or, if an Event of Default has occurred and is
continuing, or if such assignment is made in connection with the
syndication of the Revolving Commitments and the Term Loans by the
Agents, any other assignee;
(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 Banks; PROVIDED that no consent of the Issuing
Banks shall be required for an assignment of all or any portion of a
Term Loan.
(ii) Assignments shall be subject to the following conditions:
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(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 Commitment, the
amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $2,500,000 (or, in the case of the Term
Loans, $1,000,000) unless each of the Borrower and the Administrative
Agent otherwise consent (such consent not to be unreasonably withheld
or delayed), PROVIDED that no such consent of the Borrower shall be
required if an Event of Default has occurred and is continuing, and
PROVIDED FURTHER that, for purposes of determining compliance with the
minimum assignment amounts set forth in this Section 9.04(b)(ii)(A),
simultaneous assignments by an assigning Lender to two Approved Funds
of such Lender shall be aggregated;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement, PROVIDED that this clause shall not be construed
to prohibit assignment of a proportionate part of all the assigning
Lender's rights and obligations in respect of one Class of Commitments
or Loans;
(C) the parties to each assignment shall (1) electronically
execute and deliver to the Administrative Agent an Assignment and
Assumption via an electronic settlement system acceptable to the
Administrative Agent (which initially shall be ClearPar, LLC) or (2) if
no such system shall be acceptable to the Administrative Agent,
manually execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee of
$3,500; PROVIDED that only one such fee shall be payable in connection
with simultaneous assignments to or by two or more Approved Funds; and
(D) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire in which the
assignee designates one or more credit contacts to whom all
syndicate-level information (which may contain material non-public
information about the Borrower, the other Loan Parties and their
related parties or their respective securities) will be made available
and who may receive such information in accordance with the assignee's
compliance procedures and applicable laws, including Federal and state
securities laws.
For purposes of this Section 9.04(b), the terms "Approved Fund"
and "CLO" have the following meanings:
"APPROVED FUND" means (a) a CLO and (b) with respect to any
Lender that is a fund which invests in bank loans and similar extensions of
credit, any other fund that invests in bank loans and similar extensions of
credit and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
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"CLO" means any entity (whether a corporation, partnership,
trust or otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary course
of its investing activities and is administered or managed by a Lender or an
Affiliate of such Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder
shall be a party hereto and, to the extent of the interest assigned by
such Assignment and Assumption, 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
Assumption, be released from its obligations under this Agreement (and,
in the case of an Assignment and Assumption 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 9.03). 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.
(iv) 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 Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans and LC Disbursements
owing to, each Lender pursuant to the terms hereof from time to time
(the "REGISTER"). The entries in the Register shall be conclusive in
the absence of clearly demonstrable error, and the Borrower, the
Administrative Agent, the Issuing Banks 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, any Issuing Bank and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an assignee, the
assignee's completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), 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 accept such Assignment and Assumption
and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it
has been recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower,
the Administrative Agent, any Issuing Bank or the Swingline Lender, 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
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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 Borrower, the Administrative Agent, the Issuing
Banks and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; PROVIDED that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in the first proviso
to Section 9.02(b) that affects such Participant. Subject to paragraph (c)(ii)
of this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 9.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.18(c) as though it were a
Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.15 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 that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 2.17 unless the Borrower is
notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with
Section 2.17(e) as though it were a Lender.
(d) Any Lender may at any time pledge, assign or grant a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any pledge, assignment or grant to
secure obligations to a Federal Reserve Bank, and this Section shall not apply
to any such pledge, assignment or grant of a security interest; PROVIDED that
no such pledge, assignment or grant of a security interest shall release a
Lender from any of its obligations hereunder or substitute any such pledgee,
assignee or grantee for such Lender as a party hereto.
SECTION 9.05. SURVIVAL. All covenants, agreements,
representations and warranties made by the Loan Parties in the Loan Documents
and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the other parties hereto and shall survive the
execution and delivery of the Loan Documents and the making of any Loans and
issuance of any Letters of Credit, regardless of any investigation made by any
such other party or on its behalf and notwithstanding that the Administrative
Agent, any Issuing Bank or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding
95
and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.15,
2.16, 2.17 and 9.03 and Article VIII shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loans, the expiration or termination of the Letters of
Credit and the Commitments or the termination of this Agreement or any
provision hereof.
SECTION 9.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and any separate letter agreements with respect to
fees payable to the Administrative Agent constitute the entire contract among
the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the
subject matter hereof. Except as provided in Section 4.01, this Agreement shall
become effective when it shall have been executed by the Administrative Agent
and when the Administrative Agent shall have received counterparts 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 the
parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07. SEVERABILITY. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in
any other jurisdiction.
SECTION 9.08. RIGHT OF SETOFF. If an Event of Default shall
have occurred and be continuing, each Lender and each of its Affiliates 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
obligations at any time owing by such Lender or Affiliate to or for the credit
or the account of the Borrower against any of and all the obligations of the
Borrower now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand under
this Agreement and although such obligations may be unmatured. The applicable
Lender shall notify the Borrower and the Administrative Agent of such setoff or
application; PROVIDED that any failure to give or delay in giving such notice
shall not affect the validity of any such setoff or application under this
Section. The rights of each Lender under this Section are in addition to other
rights and remedies (including other rights of setoff) which such Lender may
have.
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SECTION 9.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE
OF PROCESS. (a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Each of Holdings and the Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to any Loan Document, 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 or any other Loan Document
shall affect any right that the Administrative Agent, any Issuing Bank or any
Lender may otherwise have to bring any action or proceeding relating to this
Agreement or any other Loan Document against Holdings, the Borrower or their
properties in the courts of any jurisdiction.
(c) Each of Holdings and the Borrower 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
any other Loan Document in any court referred to in paragraph (b) of this
Section. 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.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement or any other Loan Document will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
SECTION 9.10. 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 ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). 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 BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
96
SECTION 9.11. 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 shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 9.12. CONFIDENTIALITY. Each of the Administrative
Agent, the Issuing Banks and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates' directors, officers, employees, trustees and
agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this
Agreement, (e) in connection with the exercise of any remedies hereunder or any
suit, action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) subject to
an agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective assignee
of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (g) with
the consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Administrative Agent, any Issuing Bank or any Lender
on a nonconfidential basis from a source other than Holdings or the Borrower;
PROVIDED that such source is not actually known by such disclosing party to be
bound by an agreement containing provisions substantially the same as those of
this Section. For the purposes of this Section, "INFORMATION" means all
information received from Holdings and the Borrower relating to Holdings or the
Borrower or their business, other than any such information that is available
to the Administrative Agent, any Issuing Bank or any Lender on a
nonconfidential basis prior to disclosure by Holdings or the Borrower; PROVIDED
that, in the case of information received from Holdings or the Borrower after
the date hereof, such information is clearly identified at the time of delivery
as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION
9.12(A) FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL
NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS RELATED PARTIES OR THEIR
RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES
REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE
SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND
APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
97
ALL INFORMATION, INCLUDING WAIVERS AND AMENDMENTS, FURNISHED BY
HOLDINGS, THE BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE
COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION,
WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER, THE LOAN
PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY,
EACH LENDER REPRESENTS TO HOLDINGS, THE BORROWER AND THE ADMINISTRATIVE AGENT
THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO
MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN
ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.
SECTION 9.13. INTEREST RATE LIMITATION. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which are treated
as interest on such Loan under applicable law (collectively the "CHARGES"),
shall exceed the maximum lawful rate (the "MAXIMUM RATE") which may be
contracted for, charged, taken, received or reserved by the Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest
and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or
periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Effective
Rate to the date of repayment, shall have been received by such Lender.
SECTION 9.14. USA PATRIOT ACT. Each Lender hereby notifies the
Borrower that, pursuant to the requirements of the USA Patriot Act, it is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance
with the USA Patriot Act.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
INTERLINE BRANDS, INC.,
a Delaware corporation,
By:
/s/ Xxxxxx X. Xxxxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Chief Financial Officer
INTERLINE BRANDS, INC., a New
Jersey corporation,
By:
/s/ Xxxxxx X. Xxxxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Chief Financial Officer
WILMAR HOLDINGS, INC.,
By:
/s/ Xxxxxx X. Xxxxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Chief Financial Officer
WILMAR FINANCIAL, INC.,
By:
/s/ Xxxxxx X. Xxxxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Chief Financial Officer
GLENWOOD ACQUISITION LLC,
By:
/s/ Xxxxxx X. Xxxxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Chief Financial Officer
JPMORGAN CHASE BANK, N.A., as
Administrative Agent,
By:
/s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
XXXXXX COMMERCIAL PAPER INC., as
Syndication Agent,
By:
/s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
CREDIT SUISSE, as
Co-Documentation Agent,
By:
/s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Director
By:
/s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
BANK OF AMERICA, N.A., as
Co-Documentation Agent,
By:
/s/ Xxxxx Xxxxx
------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
SUNTRUST BANK, as
Co-Documentation Agent,
By:
/s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Co-Documentation Agent,
By:
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
