Exhibit 10.1
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CREDIT AGREEMENT
among
RESOLUTION PERFORMANCE PRODUCTS INC.,
RESOLUTION PERFORMANCE PRODUCTS LLC,
RPP CAPITAL CORPORATION,
RESOLUTION NEDERLAND B.V.,
VARIOUS LENDING INSTITUTIONS,
SALOMON SMITH BARNEY INC.,
AS SYNDICATION AGENT,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
AS DOCUMENTATION AGENT,
and
MORGAN STANLEY SENIOR FUNDING, INC.,
AS ADMINISTRATIVE AGENT, LEAD ARRANGER
AND SOLE BOOK MANAGER
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Dated as of November 14, 2000
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TABLE OF CONTENTS
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SECTION 1. Amount and Terms of Credit........................................................................ 1
1.01 Commitments........................................................................................ 1
1.02 Minimum Borrowing Amounts, etc..................................................................... 6
1.03 Notice of Borrowing................................................................................ 6
1.04 Disbursement of Funds.............................................................................. 7
1.05 Notes.............................................................................................. 8
1.06 Conversions........................................................................................ 11
1.07 Pro Rata Borrowings................................................................................ 12
1.08 Interest........................................................................................... 12
1.09 Interest Periods................................................................................... 14
1.10 Increased Costs; Illegality; etc................................................................... 15
1.11 Compensation....................................................................................... 18
1.12 Change of Lending Office........................................................................... 19
1.13 Replacement of Lenders............................................................................. 19
1.14 Special Sharing and Conversion Provisions Applicable to Lenders Upon the Occurrence of
a Sharing Event................................................................................ 21
SECTION 2. Letters of Credit................................................................................. 25
2.01 Letters of Credit.................................................................................. 25
2.02 Letter of Credit Requests; Letter of Credit Reports................................................ 26
2.03 Letter of Credit Participations.................................................................... 27
2.04 Agreement to Repay Letter of Credit Drawings....................................................... 29
2.05 Increased Costs.................................................................................... 30
SECTION 3. Fees; Commitments................................................................................. 31
3.01 Fees............................................................................................... 31
3.02 Voluntary Termination or Reduction of Total Unutilized Revolving Loan Commitment................... 33
3.03 Mandatory Reduction of Commitments................................................................. 33
SECTION 4. Payments.......................................................................................... 34
4.01 Voluntary Prepayments.............................................................................. 34
4.02 Mandatory Repayments and Commitment Reductions..................................................... 36
4.03 Method and Place of Payment........................................................................ 44
4.04 Net Payments....................................................................................... 45
SECTION 5. Conditions Precedent to Credit Events on the Initial Borrowing Date............................... 48
5.01 Execution of Agreement; Notes...................................................................... 48
5.02 Officer's Certificate.............................................................................. 48
(i)
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5.03 Opinions of Counsel................................................................................ 49
5.04 Company Documents; Proceedings..................................................................... 49
5.05 Adverse Change, etc................................................................................ 50
5.06 Litigation......................................................................................... 50
5.07 Approvals.......................................................................................... 50
5.08 Consummation of the Recapitalization; Equity Financing, etc........................................ 50
5.09 Pledge Agreements.................................................................................. 52
5.10 Security Agreements................................................................................ 52
5.11 US Subsidiaries Guaranty and Foreign Subsidiaries Guaranty......................................... 53
5.12 Mortgages; Surveys; etc............................................................................ 54
5.13 Shareholders' Agreements; Management Agreements; Existing Indebtedness Agreements; Tax
Allocation Agreements.......................................................................... 54
5.14 Consent Letter..................................................................................... 55
5.15 Solvency Certificate; Insurance Certificates....................................................... 55
5.16 Historical Financial Statements, Pro Forma Financial Statements; Projections....................... 56
5.17 Payment of Fees.................................................................................... 56
SECTION 6. Conditions Precedent to All Credit Events......................................................... 56
6.01 No Default; Representations and Warranties......................................................... 56
6.02 Notice of Borrowing; Letter of Credit Request...................................................... 56
SECTION 7. Representations and Warranties.................................................................... 57
7.01 Company Status..................................................................................... 57
7.02 Company Power and Authority........................................................................ 57
7.03 No Violation....................................................................................... 58
7.04 Litigation......................................................................................... 58
7.05 Use of Proceeds; Margin Regulations................................................................ 58
7.06 Governmental Approvals............................................................................. 59
7.07 Investment Company Act............................................................................. 59
7.08 Public Utility Holding Company Act................................................................. 59
7.09 True and Complete Disclosure....................................................................... 59
7.10 Financial Condition; Financial Statements; Undisclosed Liabilities; Projections.................... 60
7.11 The Security Interests............................................................................. 61
7.12 Compliance with ERISA.............................................................................. 61
7.13 Capitalization..................................................................................... 63
7.14 Subsidiaries....................................................................................... 64
7.15 Intellectual Property, etc......................................................................... 64
7.16 Compliance with Statutes, etc...................................................................... 64
7.17 Environmental Matters.............................................................................. 64
7.18 Properties......................................................................................... 65
7.19 Labor Relations.................................................................................... 65
7.20 Tax Returns and Payments........................................................................... 66
7.21 Existing Indebtedness.............................................................................. 66
7.22 Insurance.......................................................................................... 66
(ii)
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7.23 Representations and Warranties in Other Documents............................................... 66
7.24 The Transaction................................................................................. 66
7.25 Special Purpose Corporations.................................................................... 67
7.26 Subordination................................................................................... 67
SECTION 8. Affirmative Covenants.......................................................................... 67
8.01 Information Covenants........................................................................... 67
8.02 Books, Records and Inspections.................................................................. 71
8.03 Insurance....................................................................................... 71
8.04 Payment of Taxes................................................................................ 72
8.05 Corporate Franchises............................................................................ 72
8.06 Compliance with Statutes; etc................................................................... 72
8.07 Compliance with Environmental Laws.............................................................. 73
8.08 ERISA........................................................................................... 74
8.09 Good Repair..................................................................................... 75
8.10 End of Fiscal Years; Fiscal Quarters............................................................ 75
8.11 Additional Security; Further Assurances......................................................... 76
8.12 Foreign Subsidiaries Security................................................................... 78
8.13 Use of Proceeds................................................................................. 79
8.14 Permitted Acquisitions.......................................................................... 79
8.15 Performance of Obligations...................................................................... 81
8.16 Maintenance of Company Separateness............................................................. 81
8.17 Contributions................................................................................... 82
8.18 Interest Rate Protection........................................................................ 82
8.19 Holdings PIK Junior Subordinated Notes.......................................................... 82
SECTION 9. Negative Covenants............................................................................. 82
9.01 Business........................................................................................ 82
9.02 Consolidation; Merger; Sale or Purchase of Assets; etc.......................................... 83
9.03 Liens........................................................................................... 86
9.04 Indebtedness.................................................................................... 89
9.05 Advances; Investments; Loans.................................................................... 92
9.06 Dividends; etc.................................................................................. 94
9.07 Transactions with Affiliates and Unrestricted Subsidiaries...................................... 96
9.08 Designated Senior Debt.......................................................................... 97
9.09 Consolidated Interest Coverage Ratio............................................................ 97
9.10 Adjusted Total Leverage Ratio................................................................... 98
9.11 Capital Expenditures............................................................................ 99
9.12 Limitation on Voluntary Payments and Modifications of Indebtedness; Modifications of
Certificate of Incorporation, By-Laws and Certain Other Agreements; Issuances of Capital
Stock; etc.................................................................................. 100
9.13 Limitation on Issuance of Capital Stock......................................................... 103
9.14 Limitation on Certain Restrictions on Subsidiaries.............................................. 104
9.15 Limitation on the Creation of Subsidiaries, Joint Ventures and Unrestricted Subsidiaries........ 104
(iii)
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SECTION 10. Events of Default..................................................................... 105
10.01 Payments............................................................................... 105
10.02 Representations, etc................................................................... 106
10.03 Covenants.............................................................................. 106
10.04 Default Under Other Agreements......................................................... 106
10.05 Bankruptcy, etc........................................................................ 106
10.06 ERISA.................................................................................. 107
10.07 Security Documents..................................................................... 107
10.08 Guaranties............................................................................. 108
10.09 Judgments.............................................................................. 108
10.10 Ownership.............................................................................. 108
SECTION 11. Definitions........................................................................... 108
SECTION 12. The Agents............................................................................ 153
12.01 Appointment............................................................................ 153
12.02 Delegation of Duties................................................................... 153
12.03 Exculpatory Provisions................................................................. 153
12.04 Reliance by Agents..................................................................... 154
12.05 Notice of Default...................................................................... 154
12.06 Nonreliance on Agents and Other Lenders................................................ 154
12.07 Indemnification........................................................................ 155
12.08 Agents in their Individual Capacities.................................................. 155
12.09 Holders................................................................................ 155
12.10 Resignation of the Agents.............................................................. 156
12.11 Power of Attorney...................................................................... 156
SECTION 13. Holdings Guaranty..................................................................... 157
13.01 Guaranty............................................................................... 157
13.02 Bankruptcy............................................................................. 157
13.03 Nature of Liability.................................................................... 157
13.04 Independent Obligation................................................................. 158
13.05 Authorization.......................................................................... 158
13.06 Reliance............................................................................... 159
13.07 Subordination.......................................................................... 159
13.08 Waiver................................................................................. 159
13.09 Payment................................................................................ 160
SECTION 14. US Borrowers Guaranty................................................................. 160
14.01 Guaranty............................................................................... 160
14.02 Bankruptcy............................................................................. 161
14.03 Nature of Liability.................................................................... 161
14.04 Independent Obligation................................................................. 161
14.05 Authorization.......................................................................... 161
(iv)
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14.06 Reliance............................................................................... 162
14.07 Subordination.......................................................................... 162
14.08 Waiver................................................................................. 163
14.09 Payment................................................................................ 164
SECTION 15. Miscellaneous......................................................................... 164
15.01 Payment of Expenses, etc............................................................... 164
15.02 Right of Setoff........................................................................ 165
15.03 Notices; Authorized Representative..................................................... 165
15.04 Benefit of Agreement................................................................... 165
15.05 No Waiver; Remedies Cumulative......................................................... 167
15.06 Payments Pro Rata...................................................................... 168
15.07 Calculations; Computations............................................................. 168
15.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE....................................... 170
15.09 Counterparts........................................................................... 171
15.10 Effectiveness.......................................................................... 171
15.11 Headings Descriptive................................................................... 171
15.12 Amendment or Waiver; etc............................................................... 172
15.13 Survival............................................................................... 173
15.14 Domicile of Loans and Commitments...................................................... 173
15.15 Confidentiality........................................................................ 174
15.16 Waiver of Jury Trial................................................................... 174
15.17 Register............................................................................... 174
15.18 Limitation on Additional Amounts, etc.................................................. 175
15.19 Judgment Currency...................................................................... 175
15.20 Immunity............................................................................... 176
(v)
SCHEDULE I List of Lenders and Commitments
SCHEDULE II Lender Addresses
SCHEDULE III Existing Indebtedness
SCHEDULE IV Real Properties
SCHEDULE V Plans
SCHEDULE VI Capitalization
SCHEDULE VII Subsidiaries
SCHEDULE VIII Insurance
SCHEDULE IX Existing Liens
SCHEDULE X Existing Investments
SCHEDULE XI Associated Costs Rate
EXHIBIT A Form of Notice of Borrowing
EXHIBIT B-1 Form of A Euro Term Note
EXHIBIT B-2 Form of B Term Note
EXHIBIT B-3 Form of Revolving Note
EXHIBIT B-4 Form of Swingline Note
EXHIBIT C Form of Letter of Credit Request
EXHIBIT D Form of Section 4.04(b)(ii) Certificate
EXHIBIT E-1 Form of Opinion of O'Sullivan Graev & Karabell LLP, special counsel
to the Credit Parties
EXHIBIT E-2 Form of Opinion of Clifford Chance LLP, special Netherlands counsel
to the Credit Parties
EXHIBIT F Form of Officers' Certificate
EXHIBIT G Form of US Pledge Agreement
EXHIBIT H Form of US Security Agreement
EXHIBIT I-1 Form of US Subsidiaries Guaranty
EXHIBIT I-2 Form of Foreign Subsidiaries Guaranty
EXHIBIT J Form of Consent Letter
EXHIBIT K Form of Solvency Certificate
EXHIBIT L Form of Assignment and Assumption Agreement
EXHIBIT M Form of Holdings Shareholder Subordinated Note
EXHIBIT N Form of Intercompany Note
(vi)
CREDIT AGREEMENT, dated as of November 14, 2000, among RESOLUTION
PERFORMANCE PRODUCTS INC., a Delaware corporation ("Holdings"), RESOLUTION
PERFORMANCE PRODUCTS LLC, a Delaware limited liability company ("RPP USA"), RPP
CAPITAL CORPORATION, a Delaware corporation ("US Finance Corp." and, together
with RPP USA, the "US Borrowers" and each, a "US Borrower"), RESOLUTION
NEDERLAND B.V., a company organized under the laws of The Netherlands (the
"Dutch Borrower" and, together with the US Borrowers, the "Borrowers" and each,
a "Borrower"), the lenders from time to time party hereto (each, a "Lender" and,
collectively, the "Lenders"), SALOMON SMITH BARNEY INC., as Syndication Agent
(in such capacity, the "Syndication Agent"), MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Documentation Agent (in such capacity, the "Documentation Agent"),
and MORGAN STANLEY SENIOR FUNDING, INC., as Lead Arranger, sole Book Manager and
Administrative Agent (in such capacity, the "Administrative Agent" and, together
with the Documentation Agent and the Syndication Agent, the "Agents" and each,
an "Agent"). Unless otherwise defined herein, all capitalized terms used herein
and defined in Section 11 are used herein as so defined.
W I T N E S S E T H:
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WHEREAS, subject to and upon the terms and conditions set forth
herein, the Lenders are willing to make available to the respective Borrowers
the respective credit facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
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1.01 Commitments. (a) Subject to and upon the terms and conditions
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set forth herein, each Lender with an A Euro Term Loan Commitment severally
agrees to make a term loan or term loans (each, an "A Euro Term Loan" and,
collectively, the "A Euro Term Loans") to the Dutch Borrower, which A Euro Term
Loans:
(i) shall be incurred pursuant to a single drawing on the Initial
Borrowing Date;
(ii) shall be denominated in Euros;
(iii) shall be incurred and maintained as one or more Borrowings of
A Euro Term Loans, provided that, unless either the Administrative Agent
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has otherwise determined in its sole discretion or has determined that the
Syndication Date has occurred (at which time this proviso shall no longer
be applicable), prior to the 90th day following the Initial Borrowing Date,
all outstanding A Euro Term Loans shall initially be maintained as a single
Borrowing having an Interest Period of one week, and thereafter as a single
Borrowing having an Interest Period of one month; and
(iv) shall be made by each such Lender in that aggregate principal
amount which does not exceed the A Euro Term Loan Commitment of such Lender
on the Initial Borrowing Date.
Once repaid, A Euro Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein,
each Lender with a B Term Loan Commitment severally agrees to make a term loan
or term loans (each, a "B Term Loan" and, collectively, the "B Term Loans") to
the US Borrowers, which B Term Loans:
(i) shall be incurred pursuant to a single drawing on the Initial
Borrowing Date;
(ii) shall be denominated in Dollars;
(iii) shall, at the option of the US Borrowers, be incurred and
maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans,
provided that (A) except as otherwise specifically provided in Section
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1.10(b), all B Term Loans comprising the same Borrowing shall at all times
be of the same Type, and (B) unless either the Administrative Agent has
otherwise determined in its sole discretion or has determined that the
Syndication Date has occurred (at which time this clause (B) shall no
longer be applicable), prior to the 90th day following the Initial
Borrowing Date, B Term Loans may only be incurred and maintained as, and/or
converted into, Eurodollar Loans so long as all such outstanding Eurodollar
Loans are subject to a single Borrowing having an Interest Period of one
month;
(iv) shall be made by each such Lender in that aggregate principal
amount which does not exceed the B Term Loan Commitment of such Lender on
the Initial Borrowing Date; and
(v) shall be the joint and several obligations of the US Borrowers.
Once repaid, B Term Loans incurred hereunder may not be reborrowed.
(c) Subject to and upon the terms and conditions set forth herein,
each Lender with a Revolving Loan Commitment severally agrees to make, at any
time and from time to time on and after the Initial Borrowing Date and prior to
the Revolving Loan Maturity Date, a revolving loan or revolving loans (each, a
"Revolving Loan" and, collectively, the "Revolving Loans") to the US Borrowers
and/or to the Dutch Borrower, which Revolving Loans:
(i) shall be denominated in an Approved Currency permitted for the
US Borrowers or the Dutch Borrower, as the case may be;
(ii) if Dollar Revolving Loans, shall, at the option of the US
Borrowers or the Dutch Borrower, as the case may be, be incurred and
maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans,
provided that (A) except as otherwise specifically provided in Section
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1.10(b), all Dollar Revolving Loans comprising the same Borrowing shall at
all times be of the same Type, and (B) unless either the Administrative
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Agent has otherwise determined in its sole discretion or has determined
that the Syndication Date has occurred (at which time this clause (B) shall
no longer be applicable), prior to the 90/th/ day following the Initial
Borrowing Date, Dollar Revolving Loans may only be incurred and maintained
as, and/or converted into, Eurodollar Loans so long as all such outstanding
Eurodollar Loans are subject to a single Borrowing having an Interest
Period of one month;
(iii) if Euro Revolving Loans, shall be incurred and maintained as
one or more Borrowings of Euro Revolving Loans, provided that, unless
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either the Administrative Agent has otherwise determined in its sole
discretion or has determined that the Syndication Date has occurred (at
which time this proviso shall no longer be applicable), prior to the 90/th/
day following the Initial Borrowing Date, all outstanding Euro Revolving
Loans shall initially have an Interest Period of one week, and thereafter
shall have an Interest Period of one month;
(iv) if Revolving Loans incurred by the US Borrowers, shall be the
joint and several obligations of the US Borrowers;
(v) may be repaid and reborrowed in accordance with the provisions
hereof;
(vi) shall not exceed for any such Lender at any time outstanding
that aggregate Principal Amount which, when added to the sum of (x) the
aggregate Principal Amount of all other Revolving Loans made by such Lender
and then outstanding and (y) the product of (A) such Lender's RL Percentage
and (B) the sum of (1) the aggregate amount of all Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid with the
proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) at such time and (2) the aggregate Principal
Amount of all Swingline Loans (exclusive of Swingline Loans which are
repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Revolving Loans) then outstanding, equals the
Revolving Loan Commitment of such Lender at such time;
(vii) shall not exceed for all such Lenders at any time outstanding
that aggregate Principal Amount which, when added to the sum of (I) the
aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid
Drawings which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) at such time
and (II) the aggregate Principal Amount of all Swingline Loans (exclusive
of Swingline Loans which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) then outstanding, equals the Total Revolving Loan
Commitment at such time; and
(viii) if Revolving Loans incurred by the Dutch Borrower, shall not
exceed for all such Lenders at any time outstanding that aggregate
Principal Amount which, when added to the aggregate Principal Amount of all
Swingline Loans (exclusive of Swingline Loans which are repaid with the
proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) incurred by the Dutch Borrower and then
outstanding, an amount equal to the Dutch Borrower Revolving Loan Sublimit.
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(d) Subject to and upon the terms and conditions set forth herein,
the Swingline Lender agrees to make, at any time and from time to time on and
after the Initial Borrowing Date and prior to the Swingline Expiry Date, a
revolving loan or revolving loans (each, a "Swingline Loan" and, collectively,
the "Swingline Loans") to the US Borrowers and to the Dutch Borrower, which
Swingline Loans:
(i) shall be denominated in an Approved Currency permitted for the
US Borrowers or the Dutch Borrower, as the case may be;
(ii) if Dollar Swingline Loans, shall be made and maintained as Base
Rate Loans;
(iii) if Euro Swingline Loans, shall be made and maintained as Loans
bearing interest at the Overnight Euro Rate;
(iv) if Dollar Swingline Loans made to the US Borrowers, shall be
the joint and several obligations of the US Borrowers;
(v) may be repaid and reborrowed in accordance with the provisions
hereof;
(vi) shall not exceed in aggregate Principal Amount at any time
outstanding, when combined with the sum of (I) the aggregate Principal
Amount of all Revolving Loans then outstanding and (II) the aggregate
amount of all Letter of Credit Outstandings at such time, an amount equal
to the Total Revolving Loan Commitment at such time;
(vii) shall not exceed in aggregate Principal Amount at any time
outstanding the Maximum Swingline Amount; and
(viii) if Swingline Loans incurred by the Dutch Borrower, shall not
exceed in aggregate Principal Amount at any time outstanding, when combined
with the aggregate Principal Amount of all Revolving Loans incurred by the
Dutch Borrower and then outstanding, an amount equal to the Dutch Borrower
Revolving Loan Sublimit.
Notwithstanding anything to the contrary contained in this Section 1.01(d), (x)
the Swingline Lender shall not be obligated to make any Swingline Loans at a
time when a Lender Default exists unless the Swingline Lender has entered into
arrangements satisfactory to it and the Borrowers to eliminate the Swingline
Lender's risk with respect to the Defaulting Lender's or Lenders' participation
in such Swingline Loans, including by cash collateralizing such Defaulting
Lender's or Lenders' RL Percentage of the outstanding Swingline Loans and (y)
the Swingline Lender shall not make any Swingline Loan after it has received
written notice from any Borrower or the Required Lenders stating that a Default
or an Event of Default exists and is continuing until such time as the Swingline
Lender shall have received written notice (I) of rescission of all such notices
from the party or parties originally delivering such notice or (II) of the
waiver of such Default or Event of Default by the Required Lenders.
(e) On any Business Day, the Swingline Lender may, in its sole
discretion, give notice to the RL Lenders that the Swingline Lender's
outstanding Swingline Loans
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denominated in a given Approved Currency and made to the US Borrowers or the
Dutch Borrower, as the case may be, shall be funded with one or more Borrowings
of Revolving Loans denominated in such Approved Currency and to be made to the
US Borrowers or the Dutch Borrower, as the case may be (provided that such
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notice shall be deemed to have been automatically given upon the occurrence of a
Default or an Event of Default under Section 10.05 or upon the exercise of any
of the remedies provided in the last paragraph of Section 10), in which case one
or more Borrowings of Revolving Loans denominated in the Approved Currency in
which such Swingline Loans were made and constituting either Base Rate Loans (in
the case of Dollar Swingline Loans) or Euro Revolving Loans with an Interest
Period of one month (in the case of Euro Swingline Loans), as the case may be
(each such Borrowing, a "Mandatory Borrowing"), shall be made on the immediately
succeeding Business Day by all RL Lenders pro rata based on each such RL
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Lender's RL Percentage (determined before giving effect to any termination of
the Revolving Loan Commitments pursuant to the last paragraph of Section 10) and
the proceeds thereof shall be applied directly by the Swingline Lender to repay
the Swingline Lender for such outstanding Swingline Loans. Each RL Lender hereby
irrevocably agrees to make Revolving Loans in the applicable Approved Currency
upon one Business Day's notice pursuant to each Mandatory Borrowing in the
amount and in the manner specified in the preceding sentence and on the date
specified in writing by the Swingline Lender notwithstanding (i) the amount of
the Mandatory Borrowing may not comply with the Minimum Borrowing Amount
otherwise required hereunder, (ii) whether any conditions specified in Section 6
are then satisfied, (iii) whether a Default or an Event of Default then exists,
(iv) the date of such Mandatory Borrowing and (v) the amount of the Total
Revolving Loan Commitment, the Dutch Borrower Revolving Loan Sublimit or the
Revolving Loan Commitment of such RL Lender at such time. In the event that any
Mandatory Borrowing cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement of a
proceeding under any bankruptcy, reorganization, dissolution, insolvency,
receivership, administration, liquidation or similar law with respect to any
Borrower), then each RL Lender hereby agrees that it shall forthwith purchase
(as of the date the Mandatory Borrowing would otherwise have occurred, but
adjusted for any payments received from any Borrower on or after such date and
prior to such purchase) from the Swingline Lender such participations in the
outstanding Swingline Loans as shall be necessary to cause the RL Lenders to
share in such Swingline Loans ratably based upon their respective RL Percentages
(determined before giving effect to any termination of the Revolving Loan
Commitments pursuant to the last paragraph of Section 10), provided that (x) all
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interest payable on the Swingline Loans shall be for the account of the
Swingline Lender until the date as of which the respective participation is
required to be purchased and, to the extent attributable to the purchased
participation, shall be payable to the participant from and after such date and
(y) at the time any purchase of participations pursuant to this sentence is
actually made, the purchasing RL Lender shall be required to pay the Swingline
Lender interest on the principal amount of the participation so purchased for
each day from and including the day upon which the Mandatory Borrowing would
otherwise have occurred to but excluding the date of payment for such
participation, (x) in the case of Dollar Swingline Loans, at the overnight
Federal Funds Rate for the first three days and at the rate otherwise applicable
to Dollar Revolving Loans maintained as Base Rate Loans hereunder for each day
thereafter, and (y) in the case of Euro Swingline Loans, at the rate otherwise
applicable to the Euro Revolving Loans funded pursuant to the respective
Mandatory Borrowing.
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1.02 Minimum Borrowing Amounts, etc. The aggregate principal amount
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of each Borrowing of Loans shall not be less than the Minimum Borrowing Amount
applicable to such Loans, provided that Mandatory Borrowings shall be made in
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the amounts required by Section 1.01(e). More than one Borrowing may be
incurred on any day, provided that at no time shall there be outstanding more
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than twenty Borrowings of Euro Rate Loans (excluding, for this purpose, Euro
Swingline Loans).
1.03 Notice of Borrowing. (a) Whenever (x) the US Borrowers desire
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to incur Euro Revolving Loans or Dollar Loans hereunder (excluding Dollar
Swingline Loans and Dollar Revolving Loans incurred pursuant to a Mandatory
Borrowing), an Authorized Officer of the US Borrowers shall give the
Administrative Agent at the applicable Notice Office, prior to 12:00 Noon (Local
time), (A) at least three Business Days' prior written notice (or telephonic
notice promptly confirmed in writing) of each Euro Rate Loan to be incurred
hereunder, and (B) at least one Business Day's prior written notice (or
telephonic notice promptly confirmed in writing) of each Base Rate Loan to be
incurred hereunder, and (y) the Dutch Borrower desires to incur Dollar Loans or
Euro Loans hereunder (excluding Swingline Loans and Revolving Loans incurred
pursuant to a Mandatory Borrowing), an Authorized Officer of the Dutch Borrower
shall give the Administrative Agent at the applicable Notice Office, prior to
12:00 Noon (Local time), (A) at least three Business Days' prior written notice
(or telephonic notice promptly confirmed in writing) of each Euro Rate Loan to
be incurred hereunder, and (B) at least one Business Day's prior written notice
(or telephonic notice promptly confirmed in writing) of each Base Rate Loan to
be incurred hereunder. Each such notice (each, a "Notice of Borrowing") shall,
except as otherwise expressly provided in Section 1.10, be irrevocable, and, in
the case of each written notice and each written confirmation of telephonic
notice, shall be in the form of Exhibit A, appropriately completed to specify:
(i) the aggregate principal amount of the Loans to be incurred pursuant to such
Borrowing (stated in the applicable Approved Currency), (ii) the Approved
Currency for such Loans, (iii) the date of such Borrowing (which shall be a
Business Day), (iv) whether the respective Borrowing shall consist of A Euro
Term Loans, B Term Loans, Dollar Revolving Loans or Euro Revolving Loans, (v) in
the case of Dollar Loans, whether the respective Borrowing shall consist of Base
Rate Loans or, to the extent permitted hereunder, Eurodollar Loans, (vi) in the
case of Euro Rate Loans, the initial Interest Period to be applicable thereto,
and (vii) in the case of a Borrowing of Revolving Loans the proceeds of which
are to be utilized to finance, in whole or in part, the purchase price of a
Permitted Acquisition, (x) a reference to the officer's certificate, if any,
delivered in accordance with Section 8.14, (y) the aggregate principal amount of
such Revolving Loans to be utilized in connection with such Permitted
Acquisition and (z) the Total Unutilized Revolving Loan Commitment then in
effect after giving effect to the respective Permitted Acquisition (and all
payments to be made in connection therewith). The Administrative Agent shall
promptly give each Lender which is required to make Loans of the Tranche
specified in the respective Notice of Borrowing, written notice (or telephonic
notice promptly confirmed in writing) of each proposed Borrowing, of such
Lender's proportionate share thereof and of the other matters required by the
immediately preceding sentence to be specified in the Notice of Borrowing.
(b) (i) Whenever the US Borrowers or the Dutch Borrower desire to
incur Swingline Loans hereunder, an Authorized Officer of the US Borrowers or
the Dutch Borrower, as the case may be, shall give the Swingline Lender not
later than 12:00 Noon (Local time) on the
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day such Swingline Loan is to be made, written notice (or telephonic notice
promptly confirmed in writing) of each Swingline Loan to be made hereunder. Each
such notice shall be irrevocable and shall specify in each case (x) the date of
such Borrowing (which shall be a Business Day), (y) the aggregate principal
amount of the Swingline Loans to be incurred pursuant to such Borrowing (stated
in the applicable Approved Currency), and (z) the Approved Currency for such
Swingline Loans.
(ii) Mandatory Borrowings shall be made upon the notice (or deemed
notice) specified in Section 1.01(e), with the US Borrowers or the Dutch
Borrower, as the case may be, irrevocably agreeing, by their incurrence of any
Swingline Loan, to the making of Mandatory Borrowings as set forth in such
Section 1.01(e).
(c) Without in any way limiting the obligation of the Borrowers to
confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent or the Swingline Lender (in the case of a Borrowing of
Swingline Loans) or the respective Letter of Credit Issuer (in the case of the
issuance of Letters of Credit), as the case may be, may prior to receipt of
written confirmation act without liability upon the basis of such telephonic
notice, believed by the Administrative Agent, the Swingline Lender or such
Letter of Credit Issuer, as the case may be, in good faith to be from an
Authorized Officer of the US Borrowers or the Dutch Borrower, as the case may
be. In each such case, the Administrative Agent's, the Swingline Lender's or
the respective Letter of Credit Issuer's, as the case may be, record of the
terms of such telephonic notice shall be conclusive evidence of the contents of
such notice, absent manifest error.
1.04 Disbursement of Funds. (a) Not later than (i) 1:00 P.M. (Local
---------------------
time), on the date specified in each Notice of Borrowing given by the US
Borrowers (or (x) in the case of Swingline Loans to be made to the US Borrowers,
not later than 2:00 P.M. (Local time) on the date specified in Section
1.03(b)(i), or (y) in the case of Mandatory Borrowings the proceeds of which are
to repay Swingline Loans made to the US Borrowers, not later than 12:00 Noon
(Local time) on the date specified in Section 1.01(e)), or (ii) 3:00 P.M. (Local
time), on the date specified in each Notice of Borrowing given by the Dutch
Borrower (or (x) in the case of Swingline Loans to be made to the Dutch
Borrower, not later than 4:00 P.M. (Local time) on the date specified in Section
1.03(b)(i), or (y) in the case of Mandatory Borrowings the proceeds of which are
to repay Swingline Loans made to the Dutch Borrower, not later than 2:00 P.M.
(Local time) on the date specified in Section 1.01(e)), each Lender with a
Commitment under the respective Tranche will make available its pro rata share
--- ----
(determined in accordance with Section 1.07), if any, of each Borrowing
requested to be made on such date (or in the case of Swingline Loans, the
Swingline Lender shall make available the full amount thereof) in the manner
provided below. All amounts shall be made available to the Administrative Agent
in the applicable Approved Currency and in immediately available funds at the
applicable Payment Office and, except for Revolving Loans made pursuant to a
Mandatory Borrowing, the Administrative Agent promptly will make available to
the US Borrowers or the Dutch Borrower, as the case may be, by depositing to
their account at the applicable Payment Office the aggregate of the amounts so
made available to the extent of funds actually received by the Administrative
Agent. Unless the Administrative Agent shall have been notified by any Lender
prior to the date of Borrowing that such Lender does not intend to make
available to the Administrative Agent its portion of the
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Borrowing or Borrowings to be made on such date, the Administrative Agent may
assume that such Lender has made such amount available to the Administrative
Agent on such date of Borrowing, and the Administrative Agent, in reliance upon
such assumption, may (in its sole discretion and without any obligation to do
so) make available to the applicable Borrowers or Borrower a corresponding
amount. If such corresponding amount is not in fact made available to the
Administrative Agent by such Lender and the Administrative Agent has made
available same to the US Borrowers or the Dutch Borrower, as the case may be,
the Administrative Agent shall be entitled to recover such corresponding amount
on demand from such Lender. If such Lender does not pay such corresponding
amount forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent shall promptly notify the US Borrowers or the Dutch
Borrower, as the case may be, and such Borrowers or Borrower shall immediately
pay such corresponding amount to the Administrative Agent. The Administrative
Agent shall also be entitled to recover on demand from such Lender or the US
Borrowers or the Dutch Borrower, as the case may be, interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Administrative Agent to US Borrowers or the
Dutch Borrower, as the case may be, to the date such corresponding amount is
recovered by the Administrative Agent, at a rate per annum equal to (x) if paid
by such Lender, the overnight Federal Funds Rate (or, in the case of Euro Loans,
the Administrative Agent's customary rate for interbank advances) for the first
three days and at the interest rate otherwise applicable to such Loans for each
day thereafter, or (y) if paid by such Borrowers or Borrower, the then
applicable rate of interest, calculated in accordance with Section 1.08. Nothing
in this Section 1.04 shall be deemed to relieve any Lender from its obligation
to make Loans hereunder or to prejudice any rights which any of the Borrowers
may have against any Lender as a result of any failure by such Lender to make
Loans hereunder.
1.05 Notes. (a) Each Borrower's obligation to pay the principal of,
-----
and interest on, the Loans made to it by each Lender shall be set forth in the
Register maintained by the Administrative Agent pursuant to Section 15.17 and,
subject to the provisions of Section 1.05(i), also shall be evidenced (i) if A
Euro Term Loans, by a promissory note substantially in the form of Exhibit B-1
with blanks appropriately completed in conformity herewith (each, an "A Euro
Term Note" and, collectively, the "A Euro Term Notes"), (ii) if B Term Loans, by
a promissory note substantially in the form of Exhibit B-2 with blanks
appropriately completed in conformity herewith (each, a "B Term Note" and,
collectively, the "B Term Notes"), (iii) if Revolving Loans, by a promissory
note substantially in the form of Exhibit B-3 with blanks appropriately
completed in conformity herewith (each, a "Revolving Note" and, collectively,
the "Revolving Notes"), and (iv) if Swingline Loans, by a promissory note
substantially in the form of Exhibit B-4 with blanks appropriately completed in
conformity herewith (each, a "Swingline Note" and, collectively, the "Swingline
Notes").
(b) The A Euro Term Note issued to each Lender with an A Euro Term
Loan Commitment or outstanding A Euro Term Loans shall (i) be executed by the
Dutch Borrower, (ii) be payable to such Lender or its registered assigns and be
dated the Initial Borrowing Date (or, in the case of any A Euro Term Note issued
after the Initial Borrowing Date, the date of issuance thereof), (iii) be in a
stated principal amount (expressed in Euros) equal to the A Euro Term Loans made
by such Lender on the Initial Borrowing Date (or, in the case of any A Euro Term
Note issued after the initial Borrowing Date, in a stated principal amount
(expressed in Euros)
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equal to the outstanding principal amount of the A Euro Term Loans of such
Lender on the date of the issuance thereof) and be payable in the principal
amount of A Euro Term Loans evidenced thereby from time to time, provided that
the obligations evidenced by the A Euro Term Notes shall be subject to
conversion into Dollar Loans as provided in Section 1.14(a), (iv) mature on the
A Euro Term Loan Maturity Date, (v) bear interest as provided in the appropriate
clause of Section 1.08 in respect of the Euro Loans evidenced thereby, (vi) be
subject to voluntary repayment as provided in Section 4.01 and mandatory
repayment as provided in Section 4.02, and (vii) be entitled to the benefits of
this Agreement and the other Credit Documents.
(c) The B Term Note issued to each Lender with a B Term Loan
Commitment or outstanding B Term Loans shall (i) be executed by each US
Borrower, (ii) be payable to such Lender or its registered assigns and be dated
the Initial Borrowing Date (or, in the case of any B Term Note issued after the
Initial Borrowing Date, the date of issuance thereof), (iii) be in a stated
principal amount (expressed in Dollars) equal to the B Term Loans made by such
Lender on the Initial Borrowing Date (or, in the case of any B Term Note issued
after the Initial Borrowing Date, in a stated principal amount (expressed in
Dollars) equal to the outstanding principal amount of the B Term Loans of such
Lender on the date of the issuance thereof) and be payable in the principal
amount of B Term Loans evidenced thereby from time to time, (iv) mature on the B
Term Loan Maturity Date, (v) bear interest as provided in the appropriate clause
of Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the
case may be, evidenced thereby, (vi) be subject to voluntary repayment as
provided in Section 4.01 and mandatory repayment as provided in Section 4.02,
and (vii) be entitled to the benefits of this Agreement and the other Credit
Documents.
(d) The Revolving Note issued by the US Borrowers to each Lender
that has a Revolving Loan Commitment or outstanding Revolving Loans shall (i) be
executed by each US Borrower, (ii) be payable to such Lender or its registered
assigns and be dated the Initial Borrowing Date (or, in the case of any such
Revolving Note issued after the Initial Borrowing Date, the date of issuance
thereof), (iii) be in a stated principal amount (expressed in Dollars) equal to
the Revolving Loan Commitment of such Lender (or, if issued after the
termination thereof, the stated principal amount (expressed in Dollars) equal to
the outstanding Revolving Loans of such Lender to the US Borrowers at such time)
and be payable in the applicable Approved Currency in the outstanding principal
amount of the Revolving Loans evidenced thereby, provided that (x) if, because
--------
of fluctuations in exchange rates after the Initial Borrowing Date, the stated
principal amount of such Revolving Note of any such Lender would not be at least
as great as the principal amount (taking the Dollar Equivalent of all Euro
Revolving Loans evidenced thereby) of such Revolving Loans made by such Lender
to the US Borrowers at any time outstanding, such Lender may request (and in
such case the US Borrowers shall promptly execute and deliver) a new Revolving
Note in an amount equal to the aggregate principal amount (taking the Dollar
Equivalent of all Euro Revolving Loans evidenced thereby) of such Revolving
Loans of such Lender outstanding on the date of the issuance of such new
Revolving Note, and (y) the obligations of the US Borrowers in respect of Euro
Revolving Loans shall be subject to conversion into Dollars as provided in
Section 1.14(a), (iv) mature on the Revolving Loan Maturity Date, (v) bear
interest as provided in the appropriate clause of Section 1.08 in respect of the
Base Rate Loans, Eurodollar Loans and Euro Revolving Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary prepayment as provided in
Section 4.01 and mandatory
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repayment as provided in Section 4.02, and (vii) be entitled to the benefits of
this Agreement and the other Credit Documents.
(e) The Revolving Note issued by the Dutch Borrower to each Lender
that has a Revolving Loan Commitment or outstanding Revolving Loans shall (i) be
executed by the Dutch Borrower, (ii) be payable to such Lender or its registered
assigns and be dated the Initial Borrowing Date (or, in the case of any such
Revolving Note issued after the Initial Borrowing Date, the date of issuance
thereof), (iii) be in a stated principal amount (expressed in Dollars) equal to
the Revolving Loan Commitment of such Lender (or, if issued after the
termination thereof, the stated principal amount (expressed in Dollars) equal to
the outstanding Revolving Loans of such Lender to the Dutch Borrower at such
time) and be payable in the applicable Approved Currency in the outstanding
principal amount of the Revolving Loans evidenced thereby, provided that (x) if,
--------
because of fluctuations in exchange rates after the Initial Borrowing Date, the
stated principal amount of such Revolving Note of any such Lender would not be
at least as great as the principal amount (taking the Dollar Equivalent of all
Euro Revolving Loans evidenced thereby) of such Revolving Loans made by such
Lender to the Dutch Borrower at any time outstanding, such Lender may request
(and in such case the Dutch Borrower shall promptly execute and deliver) a new
Revolving Note in an amount equal to the aggregate principal amount (taking the
Dollar Equivalent of all Euro Revolving Loans evidenced thereby) of such
Revolving Loans of such Lender outstanding on the date of the issuance of such
new Revolving Note, and (y) the obligations of the Dutch Borrower in respect of
Euro Revolving Loans shall be subject to conversion into Dollars as provided in
Section 1.14(a), (iv) mature on the Revolving Loan Maturity Date, (v) bear
interest as provided in the appropriate clause of Section 1.08 in respect of the
Base Rate Loans, Eurodollar Loans and Euro Revolving Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary prepayment as provided in
Section 4.01 and mandatory repayment as provided in Section 4.02, and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(f) The Swingline Note issued by the US Borrowers to the Swingline
Lender shall (i) be executed by each US Borrower, (ii) be payable to the
Swingline Lender or its registered assigns and be dated the Initial Borrowing
Date, (iii) be in a stated principal amount (expressed in Dollars) equal to the
Maximum Swingline Amount and be payable in Dollars in the outstanding principal
amount of the Swingline Loans evidenced thereby from time to time, (iv) mature
on the Swingline Expiry Date, (v) bear interest as provided in the appropriate
clause of Section 1.08 in respect of the Base Rate Loans evidenced thereby, (vi)
be subject to voluntary prepayment as provided in Section 4.01 and mandatory
repayment as provided in Section 4.02, and (vii) be entitled to the benefits of
this Agreement and the other Credit Documents.
(g) The Swingline Note issued by the Dutch Borrower to the Swingline
Lender shall (i) be executed by the Dutch Borrower, (ii) be payable to the
Swingline Lender or its registered assigns and be dated the Initial Borrowing
Date, (iii) be in a stated principal amount (expressed in Dollars) equal to the
Maximum Swingline Amount and be payable in the applicable Approved Currency in
the outstanding principal amount of the Swingline Loans evidenced thereby from
time to time, provided that (x) if, because of fluctuations in exchange rates
after the Initial Borrowing Date, the stated principal amount of such Swingline
Note would not be at least as great as the principal amount (taking the Dollar
Equivalent of all Euro
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Swingline Loans evidenced thereby) of Swingline Loans made to the Dutch Borrower
at any time outstanding, the Swingline Lender may request that the Dutch
Borrower (and in such case the Dutch Borrower shall promptly execute and
deliver) a new Swingline Note in an amount equal to the aggregate principal
amount (taking the Dollar Equivalent of all Euro Swingline Loans evidenced
thereby) of such Swingline Loans outstanding on the date of the issuance of such
new Swingline Note, and (y) the obligations of the Dutch Borrower in respect of
Euro Swingline Loans shall be subject to conversion into Dollars as provided in
Section 1.14(a), (iv) mature on the Swingline Expiry Date, (v) bear interest as
provided in the appropriate clause of Section 1.08 in respect of the Swingline
Loans evidenced thereby, (vi) be subject to voluntary prepayment as provided in
Section 4.01 and mandatory repayment as provided in Section 4.02, and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(h) Except as otherwise provided in Section 1.05(i), each Lender will
note on its internal records the amount of each Loan made by it and each payment
in respect thereof and will prior to any transfer of any of its Notes endorse on
the reverse side thereof the outstanding principal amount of Loans evidenced
thereby. Failure to make any such notation or any error in such notation shall
not affect any Borrower's obligations in respect of such Loans.
(i) Notwithstanding anything to the contrary contained above in this
Section 1.05 or elsewhere in this Agreement, Notes shall only be delivered to
Lenders which at any time specifically request the delivery of such Notes. No
failure of any Lender to request or obtain a Note evidencing its Loans to any
Borrower shall affect or in any manner impair the obligations of any Borrower to
pay the Loans (and all related Obligations) incurred by it which would otherwise
be evidenced thereby in accordance with the requirements of this Agreement, and
shall not in any way affect the security or guaranties therefor provided
pursuant to the various Credit Documents. Any Lender which does not have a Note
evidencing its outstanding Loans shall in no event be required to make the
notations otherwise described in preceding clause (h). At any time when any
Lender requests the delivery of a Note to evidence any of its Loans, the US
Borrowers or the Dutch Borrower, as the case may be, shall promptly execute and
deliver to the respective Lender the requested Note in the appropriate amount or
amounts to evidence such Loans.
1.06 Conversions. The US Borrowers or the Dutch Borrower, as the
-----------
case may be, shall have the option to convert on any Business Day occurring on
or after the Initial Borrowing Date, all or a portion at least equal to the
applicable Minimum Borrowing Amount of the outstanding principal amount of
Dollar Loans (other than Dollar Swingline Loans, which shall at all times be
maintained as Base Rate Loans) made pursuant to one or more Borrowings of one or
more Types of Dollar Loans under a single Tranche into a Borrowing or Borrowings
of another Type of Dollar Loan under such Tranche; provided that (i) except as
--------
otherwise provided in Section 1.10(b) or unless the respective Borrower or
Borrowers pay all breakage costs and other amounts owing to each Lender pursuant
to Section 1.11 concurrently with any such conversion, Eurodollar Loans may be
converted into Base Rate Loans only on the last day of an Interest Period
applicable to the Eurodollar Loans being converted, and no partial conversion of
a Borrowing of Eurodollar Loans shall reduce the outstanding principal amount of
the Eurodollar Loans made pursuant to such Borrowing to less than the Minimum
Borrowing Amount applicable thereto, (ii) Base Rate Loans may only be converted
into Eurodollar Loans if no Default or Event of Default is in existence on the
date of the conversion, (iii) unless the
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Administrative Agent has otherwise determined in its sole discretion or has
determined that the Syndication Date has occurred (at which time this clause
(iii) shall no longer be applicable), prior to the 90th day after the Initial
Borrowing Date, conversions of Base Rate Loans into Eurodollar Loans shall be
subject to the provisions of clause (B) of the proviso in each of Sections
1.01(b)(iii) and 1.01(c)(ii), and (iv) Borrowings of Eurodollar Loans resulting
from this Section 1.06 shall be limited in number as provided in Section 1.02.
Each such conversion shall be effected by the US Borrowers or the Dutch
Borrower, as the case may be, by giving the Administrative Agent at the
applicable Notice Office, prior to 12:00 Noon (Local time), at least three
Business Days' (or one Business Day's in the case of a conversion into Base Rate
Loans) prior written notice (or telephonic notice promptly confirmed in writing)
(each, a "Notice of Conversion") specifying the Dollar Loans to be so converted,
the Borrowing(s) pursuant to which the Dollar Loans were made and, if to be
converted into a Borrowing of Eurodollar Loans, the Interest Period to be
initially applicable thereto. The Administrative Agent shall give each Lender
prompt notice of any such proposed conversion affecting any of its Dollar Loans.
Upon any such conversion, the proceeds thereof will be deemed to be applied
directly on the day of such conversion to prepay the outstanding principal
amount of the Dollar Loans being converted.
1.07 Pro Rata Borrowings. All Borrowings of A Euro Term Loans, B
-------------------
Term Loans and Revolving Loans under this Agreement shall be incurred by the US
Borrowers or the Dutch Borrower, as the case may be, from the Lenders pro rata
--- ----
on the basis of the respective Lenders' A Euro Term Loan Commitments, B Term
Loan Commitments or Revolving Loan Commitments, as the case may be. It is
understood that no Lender shall be responsible for any default by any other
Lender of its obligation to make Loans hereunder and that each Lender shall be
obligated to make the Loans to be made by it hereunder, regardless of the
failure of any other Lender to fulfill its commitments hereunder.
1.08 Interest. (a) The US Borrowers hereby jointly and severally
--------
agree (including, without limitation, with respect to any Euro Loan converted
into Dollars pursuant to Section 1.14), and the Dutch Borrower hereby agrees
(including, without limitation, with respect to any Euro Loan converted into
Dollars pursuant to Section 1.14), to pay interest in respect of the unpaid
principal amount of each Base Rate Loan made to them or it, as the case may be,
from the date of the Borrowing thereof (or, in the circumstances described in
the immediately preceding parentheticals, from the date of the conversion of the
respective Euro Loans pursuant to Section 1.14) until the earlier of (i) the
maturity (whether by acceleration, prepayment or otherwise) of such Base Rate
Loan and (ii) the conversion of such Base Rate Loan to a Eurodollar Loan
pursuant to Section 1.06, at a rate per annum which shall at all times be the
relevant Applicable Margin plus the Base Rate, each as in effect from time to
----
time.
(b) The US Borrowers hereby jointly and severally agree, and the
Dutch Borrower hereby agrees, to pay interest in respect of the unpaid principal
amount of each Eurodollar Loan made to them or it, as the case may be, from the
date of the Borrowing thereof until the earlier of (i) the maturity (whether by
acceleration, prepayment or otherwise) of such Eurodollar Loan and (ii) the
conversion of such Eurodollar Loan to a Base Rate Loan pursuant to Section 1.06,
1.09, 1.10(b) or 1.14, as applicable, at a rate per annum which shall at all
times be the relevant Applicable Margin plus the Eurodollar Rate for such
----
Interest Period, each as in effect from time to time.
(c) The Dutch Borrower hereby agrees to pay interest in respect of
the unpaid principal amount of each A Euro Term Loan made to it, and the US
Borrowers hereby jointly and severally agree, and the Dutch Borrower hereby
agrees, to pay interest in respect of the unpaid principal amount of each Euro
Revolving Loan made to them or it (as the case may be), in each case, from the
date of the Borrowing thereof until the maturity thereof (whether by
acceleration, prepayment or otherwise) at a rate per annum which shall, during
each Interest Period applicable thereto, be equal to the sum of the relevant
Applicable Margin plus EURIBOR for such Interest Period plus any Associated
---- ----
Costs.
(d) The Dutch Borrower hereby agrees to pay interest in respect of
the unpaid principal amount of each Euro Swingline Loan from the date of the
Borrowing thereof until the maturity thereof (whether by acceleration,
prepayment or otherwise) at a rate per annum which shall be equal to the sum of
the relevant Applicable Margin plus the Overnight Euro Rate in effect from time
----
to time during the period such Euro Swingline Loan is outstanding plus any
----
Associated Costs.
(e) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan and any other overdue amount payable hereunder
or under any other Credit Document shall, in each case, bear interest at a rate
per annum (i) in the case of overdue principal of, and interest or other overdue
amounts owing with respect to, Euro Loans (other than Euro Swingline Loans) and
overdue amounts owing with respect to Letters of Credit issued in Euros, equal
to 2% in excess of the relevant Applicable Margin plus EURIBOR for such
----
successive periods not exceeding three months as the Administrative Agent may
determine from time to time in respect of amounts comparable to the amount not
paid plus any Associated Costs, (ii) in the case of overdue principal of, and
----
interest or other amounts owing with respect to, Euro Swingline Loans, equal to
2% in excess of the relevant Applicable Margin plus the Overnight Euro Rate as
----
in effect from time to time plus any Associated Costs, (iii) in the case of
----
overdue principal of, and interest on, Dollar Loans, equal to the greater of (x)
2% in excess of the rate otherwise applicable to Base Rate Loans maintained
pursuant to the respective Tranche from time to time and (y) the rate which is
2% in excess of the rate then borne by such Loans, in each case with such
interest to be payable on demand, and (iv) in the case of all other overdue
amounts payable under this Agreement or under any other Credit Document, equal
to the rate which is 2% in excess of the rate applicable to Dollar Revolving
Loans maintained as Base Rate Loans from time to time.
(f) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof and shall be
payable (i) in respect of each Base Rate Loan and each Euro Swingline Loan,
quarterly in arrears on each Quarterly Payment Date, (ii) in respect of each
Euro Rate Loan (other than a Euro Swingline Loan), on the last day of each
Interest Period applicable thereto and, in the case of an Interest Period in
excess of three months, on each date occurring at three month intervals after
the first day of such Interest Period and (iii) in respect of each Loan, on (x)
the date of any prepayment or repayment thereof (on the amount prepaid or
repaid), (y) at maturity (whether by acceleration or otherwise) and (z) after
such maturity, on demand.
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(g) All computations of interest hereunder shall be made in
accordance with Section 15.07(b).
(h) Upon each Interest Determination Date, the Administrative Agent
shall determine the Euro Rate for the respective Interest Period or Interest
Periods and shall promptly notify the respective Borrower or Borrowers and the
Lenders thereof. Each such determination shall, absent manifest error, be final
and conclusive and binding on all parties hereto.
1.09 Interest Periods. At the time the US Borrowers or the Dutch
----------------
Borrower, as the case may be, give any Notice of Borrowing or Notice of
Conversion in respect of the making of, or conversion into, a Borrowing of Euro
Rate Loans (other than Euro Swingline Loans) (in the case of the initial
Interest Period applicable thereto) or prior to 12:00 Noon (Local time) on the
third Business Day prior to the expiration of an Interest Period applicable to a
Borrowing of Euro Rate Loans (other than Euro Swingline Loans) (in the case of
any subsequent Interest Period), the US Borrowers or the Dutch Borrower, as the
case may be, shall have the right to elect, by giving the Administrative Agent
written notice (or telephonic notice promptly confirmed in writing) thereof, the
interest period (each an "Interest Period") applicable to such Borrowing, which
Interest Period shall, at the option of the US Borrowers or the Dutch Borrower,
as the case may be (but otherwise subject to clause (B) of the proviso to
Sections 1.01(b)(iii) and 1.01(c)(ii), and the proviso in Section 1.01(a)(iii)),
be (x) a one, two, three, six or, to the extent available to each Lender with
outstanding Loans and/or Commitments under the respective Tranche, nine or
twelve month period, or (y) in the case of any Borrowings of A Euro Term Loans
or Euro Revolving Loans prior to the earlier of the Syndication Date and the
90th day following the Initial Borrowing Date, initially a one week period and
thereafter a one month period. Notwithstanding anything to the contrary
contained above:
(i) all Euro Rate Loans comprising a Borrowing shall at all times
have the same Interest Period;
(ii) the initial Interest Period for any Euro Rate Loan shall
commence on the date of such Borrowing (including, in the case of
Eurodollar Loans, the date of any conversion thereto from a Borrowing of
Base Rate Loans) and each Interest Period occurring thereafter in respect
of such Borrowing shall commence on the day on which the next preceding
Interest Period applicable thereto expires;
(iii) if any Interest Period for any Euro Rate Loan begins on a day
for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period, such Interest Period shall end on the
last Business Day of such calendar month;
(iv) if any Interest Period for any Euro Rate Loan would otherwise
expire on a day which is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day, provided that if any Interest
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Period for any Borrowing of Euro Rate Loans would otherwise expire on a day
which is not a Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest Period shall
expire on the next preceding Business Day;
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(v) no Interest Period for a Borrowing of Euro Rate Loans under a
Tranche shall be selected which would extend beyond the respective Maturity
Date for such Tranche;
(vi) no Interest Period for a Eurodollar Loan may be elected at any
time when a Default or an Event of Default is then in existence;
(vii) no Interest Period, other than a one month Interest Period,
for a Euro Loan may be elected at any time when a Default or an Event of
Default is then in existence; and
(viii) no Interest Period in respect of any Borrowing of any Tranche
of Term Loans shall be elected which extends beyond any date upon which a
Scheduled Repayment for such Tranche of Term Loans will be required to be
made under Sections 4.02(b) and (c), respectively, if, after giving effect
to the election of such Interest Period, the aggregate principal amount of
such Term Loans which have Interest Periods which will expire after such
date will be in excess of the aggregate principal amount of such Term Loans
then outstanding less the aggregate amount of such required Scheduled
Repayment.
If upon the expiration of any Interest Period applicable to a
Borrowing of Euro Rate Loans, the US Borrowers or the Dutch Borrower, as the
case may be, have failed to elect, or are not permitted to elect, a new Interest
Period to be applicable to the respective Borrowing of Euro Rate Loans as
provided above, the applicable Borrowers or Borrower shall be deemed to have
elected (x) in the case of Eurodollar Loans, to convert such Eurodollar Loans
into Base Rate Loans and (y) in the case of Euro Loans, a one-month Interest
Period for such Euro Loans, in each case effective as of the expiration date of
such current Interest Period.
1.10 Increased Costs; Illegality; etc. (a) In the event that (x) in
---------------------------------
the case of clauses (i) and (iv) below, the Administrative Agent or (y) in the
case of clauses (ii) and (iii) below, any Lender, shall have determined in good
faith (which determination shall, absent manifest error, be final and conclusive
and binding upon all parties hereto):
(i) on any Interest Determination Date that, by reason of any
changes arising after the Effective Date affecting the applicable interbank
market, adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of the
respective Euro Rate; or
(ii) at any time, that such Lender shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Euro Rate Loan because of (x) any change since the Effective Date in
any applicable law, governmental rule, regulation, guideline, order or
request (whether or not having the force of law), or in the interpretation
or administration thereof and including the introduction of any new law or
governmental rule, regulation, guideline, order or request, such as, for
example, but not limited to, a change in official reserve requirements,
but, in all events, excluding reserves required under Regulation D to the
extent included in the computation of the respective Euro Rate and/or (y)
other circumstances since the Effective Date affecting such Lender, the
relevant interbank market or the position of such Lender in such market; or
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(iii) at any time since the Effective Date, that the making or
continuance of any Euro Rate Loan has become unlawful by compliance by such
Lender with any law, governmental rule, regulation, guideline or order (or
would conflict with any governmental rule, regulation, guideline, request
or order not having the force of law but with which such Lender customarily
complies even though the failure to comply therewith would not be
unlawful), or has become impracticable as a result of a contingency
occurring after the Effective Date which materially and adversely affects
the applicable interbank market; or
(iv) at any time that Euros are not available in sufficient
amounts, as reasonably determined in good faith by the Administrative
Agent, to fund any Borrowing of Euro Loans;
then, and in any such event, such Lender (or the Administrative Agent, in the
case of clause (i) or (iv) above) shall promptly give written notice to the US
Borrowers and/or the Dutch Borrower, as the case may be, and, except in the case
of clauses (i) and (iv) above, to the Administrative Agent of such determination
(which notice the Administrative Agent shall promptly transmit to each of the
other Lenders). Thereafter (w) in the case of clause (i) above, (A) in the event
that Eurodollar Loans are so affected, Eurodollar Loans shall no longer be
available until such time as the Administrative Agent notifies the Borrowers and
the Lenders that the circumstances giving rise to such notice by the
Administrative Agent no longer exist, and any Notice of Borrowing or Notice of
Conversion given by the US Borrowers or the Dutch Borrower with respect to
Eurodollar Loans which have not yet been incurred (including by way of
conversion) shall be deemed rescinded by the US Borrowers or the Dutch Borrower,
as the case may be, (B) in the event that Euro Loans (other than Euro Swingline
Loans) are so affected, the applicable Euro Rate shall be determined on the
basis provided in the last sentence of the definition of EURIBOR, and (C) in the
event that Euro Swingline Loans are so affected, the Overnight Euro Rate shall
be determined on the basis provided in the proviso to the definition of
Overnight Euro Rate, (x) in the case of clause (ii) above, the US Borrowers
jointly and severally agree, or the Dutch Borrower agrees, as appropriate, to
pay to such Lender, upon written demand therefor (but otherwise subject to the
provisions of Section 15.18 (to the extent applicable)), such additional amounts
(in the form of an increased rate of, or a different method of calculating,
interest or otherwise as such Lender in its sole discretion shall determine) as
shall be required to compensate such Lender for such increased costs or
reductions in amounts received or receivable hereunder (a written notice as to
the additional amounts owed to such Lender, showing in reasonable detail the
basis for the calculation thereof, submitted to the US Borrowers or the Dutch
Borrower, as appropriate, by such Lender shall, absent manifest error, be final
and conclusive and binding on all the parties hereto), (y) in the case of clause
(iii) above, the US Borrowers or the Dutch Borrower, as the case may be, shall
take one of the actions specified in Section 1.10(b) as promptly as possible
and, in any event, within the time period required by law, and (z) in the case
of clause (iv) above, Euro Loans (other than any such Euro Loans which have
theretofore been funded) shall no longer be available until such time as the
Administrative Agent notifies the Dutch Borrower and the Lenders that the
circumstances giving rise to such notice by the Administrative Agent no longer
exist, and any Notice of Borrowing given by the Dutch Borrower with respect to
such Euro Loans which have not yet been incurred shall be deemed rescinded by
the Dutch Borrower.
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(b) At any time that any Euro Rate Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the US Borrowers and/or
the Dutch Borrower, as the case may be, may (and in the case of any Euro Rate
Loan affected by the circumstances described in Section 1.10(a)(iii), the
applicable Borrowers or Borrower shall) either (x) if the affected Euro Rate
Loan is then being made initially or pursuant to a conversion, cancel the
respective Borrowing by giving the Administrative Agent written notice on the
same date that the US Borrowers or the Dutch Borrower, as the case may be, was
notified by the affected Lender or the Administrative Agent pursuant to Section
1.10(a)(ii) or (iii), or (y) if the affected Euro Rate Loan is then outstanding,
upon at least three Business Days' written notice to the Administrative Agent
and the affected Lender, (A) in the case of any Eurodollar Loan, require the
affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which
conversion, in the case of the circumstance described in Section 1.10(a)(iii),
shall occur no later than the last day of the Interest Period then applicable to
such Eurodollar Loan or such earlier date as shall be required by applicable
law) and (B) in the case of any Euro Loan, repay all outstanding Borrowings
which include such affected Euro Loan in full; provided that (i) if the
--------
circumstances described in Section 1.10(a)(iii) apply to any Euro Loan, the US
Borrowers or the Dutch Borrower, as applicable, may, in lieu of taking the
actions described above, maintain such Euro Loan outstanding, in which case the
applicable Euro Rate shall be determined (I) in the case of A Euro Term Loans
and Euro Revolving Loans, on the basis provided in the last sentence of the
definition of EURIBOR, and (II) in the case of Euro Swingline Loans, on the
basis provided in the proviso to the definition of Overnight Euro Rate, unless
(in either case) the maintenance of such Euro Loan outstanding on such basis
would not stop the conditions described in Section 1.10(a)(iii) from existing
(in which case the actions described above, without giving effect to this
proviso, shall be required to be taken), and (ii) if more than one Lender is
affected at any time, then all affected Lenders must be treated the same
pursuant to this Section 1.10(b).
(c) If any Lender shall have determined that after the Effective
Date, the adoption or effectiveness of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by the NAIC or any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by such Lender or any corporation
controlling such Lender with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Lender's or such other corporation's capital or assets as a consequence
of such Lender's Commitment or Commitments or its obligations hereunder to the
US Borrowers and/or the Dutch Borrower, as the case may be, to a level below
that which such Lender or such other corporation could have achieved but for
such adoption, effectiveness, change or compliance (taking into consideration
such Lender's or such other corporation's policies with respect to capital
adequacy), then from time to time, upon written demand by such Lender (with a
copy to the Administrative Agent), accompanied by the notice referred to in the
last sentence of this clause (c), the US Borrowers jointly and severally agree,
and the Dutch Borrower agrees, as the case may be, subject to the provisions of
Section 15.18 (to the extent applicable), to pay to such Lender such additional
amount or amounts as will compensate such Lender or such other corporation for
such reduction in the rate of return to such Lender or such other corporation.
Each Lender, upon determining in good faith that any additional amounts will be
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payable pursuant to this Section 1.10(c), will give prompt written notice
thereof to the US Borrowers and/or the Dutch Borrower, as the case may be (a
copy of which shall be sent by such Lender to the Administrative Agent), which
notice shall set forth in reasonable detail the basis of the calculation of such
additional amounts, although the failure to give any such notice shall not
release or diminish any Borrower's obligation to pay additional amounts pursuant
to this Section 1.10(c) upon the subsequent receipt of such notice. In
determining any additional amounts owing under this Section 1.10(c), each Lender
will act reasonably and in good faith and will use averaging and attribution
methods which are reasonable; provided that such Lender's reasonable good faith
--------
determination of compensation owing under this Section 1.10(c) shall, absent
manifest error, be final and conclusive and binding on all the parties hereto.
(d) In the event that any Lender shall have determined in good faith
(which determination shall, absent manifest error, be final and conclusive and
binding on all parties hereto) at any time that such Lender is required to
maintain reserves (including, without limitation, any marginal, emergency,
supplemental, special or other reserves required by applicable law) which have
been established by any Federal, state, local or foreign court or governmental
agency, authority, instrumentality or regulatory body with jurisdiction over
such Lender (including any branch, Affiliate or funding office thereof) in
respect of any Euro Loans or any category of liabilities which includes deposits
by reference to which the interest rate on any Euro Loan is determined or any
category of extensions of credit or other assets which includes loans by a non-
United States office of any Lender to non-United States residents, then, unless
such reserves are included in the calculation of the interest rate applicable to
such Euro Loans or in Section 1.10(a)(ii), such Lender shall promptly notify the
Dutch Borrower in writing specifying the additional amounts required to
indemnify such Lender against the cost of maintaining such reserves (such
written notice to provide in reasonable detail a computation of such additional
amounts) and the Dutch Borrower agrees, subject to Section 15.18 (to the extent
applicable), to pay to such Lender such specified amounts as additional interest
at the time that the Dutch Borrower is otherwise required to pay interest in
respect of such Euro Loan or, if later, on written demand therefor by such
Lender.
1.11 Compensation. The US Borrowers jointly and severally agree, and
------------
the Dutch Borrower agrees, subject to the provisions of Section 15.18 (to the
extent applicable), to compensate each Lender, promptly upon its written request
(which request shall set forth in reasonable detail the basis for requesting
such compensation), for all reasonable losses, expenses and liabilities
(including, without limitation, any loss, expense or liability incurred by
reason of the liquidation or reemployment of deposits or other funds required by
such Lender to fund its Euro Rate Loans but excluding any loss of anticipated
profits) which such Lender may sustain: (i) if for any reason (other than a
default by such Lender or the Administrative Agent) a Borrowing of, or
conversion from or into, Euro Rate Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion given by any Borrower
(whether or not withdrawn by any Borrower or deemed withdrawn pursuant to
Section 1.10(a)); (ii) if any repayment (including any repayment made pursuant
to Section 4.01 or 4.02 or as a result of an acceleration of the Loans pursuant
to Section 10 or as a result of the replacement of a Lender pursuant to Section
1.13 or 15.12(b)) or conversion of any Euro Rate Loans occurs on a date which is
not the last day of an Interest Period applicable thereto; (iii) if any
prepayment of any Euro Rate Loans is not made on any date specified in a notice
of prepayment given by any
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Borrower; or (iv) as a consequence of (x) any other default by any Borrower to
repay its Euro Rate Loans when required by the terms of this Agreement or (y)
any election made by any Borrower pursuant to Section 1.10(b). Each Lender's
calculation of the amount of compensation owing pursuant to this Section 1.11
shall be made in good faith. A Lender's basis for requesting compensation
pursuant to this Section 1.11 and a Lender's calculation of the amount thereof
made in accordance with the requirements of this Section 1.11, shall, absent
manifest error, be final and conclusive and binding on all parties hereto.
1.12 Change of Lending Office. (a) Each Lender may at any time or
------------------------
from time to time designate, by written notice to the Administrative Agent to
the extent not already reflected on Schedule II, one or more lending offices
(which, for this purpose, may include Affiliates of the respective Lender) for
the various Loans made, and Letters of Credit participated in, by such Lender
(including, without limitation, by designating a separate lending office (or
Affiliate) to act as such with respect to Dollar Loans versus Euro Loans);
provided that, for designations made after the Effective Date, to the extent
- --------
such designation shall result in increased costs under Section 1.10, 2.05 or
4.04 in excess of those which would be charged in the absence of the designation
of a different lending office (including a different Affiliate of the respective
Lender), then the Borrowers shall not be obligated to pay such excess increased
costs (although the Borrowers, in accordance with and pursuant to the other
provisions of this Agreement, shall be obligated to pay the costs which would
apply in the absence of such designation and any subsequent increased costs of
the type described above resulting from changes after the date of the respective
designation). Each lending office and Affiliate of any Lender designated as
provided above shall, for all purposes of this Agreement, be treated in the same
manner as the respective Lender (and shall be entitled to all indemnities and
similar provisions in respect of its acting as such hereunder).
(b) Each Lender agrees that, upon the occurrence of any event giving
rise to the operation of Section 1.10(a)(ii) or (iii), 1.10(c), 1.10(d), 2.05 or
4.04 with respect to such Lender (including as a result of the occurrence of a
Sharing Event), it will, if requested by any Borrower, use reasonable efforts
(subject to overall policy considerations of such Lender) to designate another
lending office for any Loans or Letters of Credit affected by such event, with
the object of avoiding the consequences of the event giving rise to the
operation of any such Section; provided that such designation is made on such
--------
terms that such Lender and its lending office suffer no economic, legal or
regulatory disadvantage. Nothing in this Section 1.12 shall affect or postpone
any of the obligations of any Borrower or the right of any Lender provided in
Section 1.10, 2.05 or 4.04 (although each such Lender shall nevertheless have an
obligation to change its applicable lending office subject to the terms set
forth in the immediately preceding sentence).
1.13 Replacement of Lenders. (x) If any Lender becomes a Defaulting
----------------------
Lender, (y) upon the occurrence of any event giving rise to the operation of
Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 1.10(d), Section 2.05 or
Section 4.04 with respect to any Lender which results in such Lender charging to
any Borrower increased costs in a material amount in excess of those being
generally charged by the other Lenders or (z) in the case of a refusal by a
Lender to consent to a proposed change, waiver, discharge or termination with
respect to this Agreement which has been approved by the Required Lenders as
(and to the extent) provided in Section
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15.12(b), the Borrowers shall have the right, in accordance with Section
15.04(b), if no Default or Event of Default then exists or would exist after
giving effect to such replacement, to replace such Lender (the "Replaced
Lender") with one or more other Eligible Transferee or Transferees, none of whom
shall constitute a Defaulting Lender at the time of such replacement
(collectively, the "Replacement Lender") and each of which shall be reasonably
acceptable to the Administrative Agent or, in the case of a replacement as (and
to the extent) provided in Section 15.12(b) where the consent of the respective
Lender is required with respect to less than all Tranches of its Loans or
Commitments, to replace the Commitments and/or outstanding Loans of such Lender
in respect of each Tranche where the consent of such Lender would otherwise be
individually required, with identical Commitments and/or Loans of the respective
Tranche provided by the Replacement Lender; provided that:
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(i) at the time of any replacement pursuant to this Section 1.13,
the Replacement Lender shall enter into one or more Assignment and
Assumption Agreements pursuant to Section 15.04(b) (and with all fees
payable pursuant to said Section 15.04(b) to be paid by the Replacement
Lender) pursuant to which the Replacement Lender shall acquire all of the
Commitments and outstanding Loans (or, in the case of the replacement of
less than all the Tranches of Commitments and outstanding Loans of the
respective Replaced Lender, all the Commitments and all then outstanding
Loans relating to the Tranche or Tranches with respect to which such Lender
is being replaced) of, and, in each case in which Revolving Loan
Commitments are being replaced, participations in Letters of Credit by, the
Replaced Lender and, in connection therewith, shall pay to (x) the Replaced
Lender in respect thereof an amount equal to the sum (in the relevant
currency or currencies) of (A) an amount equal to the principal of, and all
accrued interest on, all outstanding Loans of the Replaced Lender under
each Tranche with respect to which such Replaced Lender is being replaced,
(B) in the case of any replacement of Revolving Loan Commitments, an amount
equal to all Unpaid Drawings that have been funded by (and not reimbursed
to) such Replaced Lender, together with all then unpaid interest with
respect thereto at such time and (C) an amount equal to all accrued, but
theretofore unpaid, Fees owing to the Replaced Lender (but only with
respect to the relevant Tranche, in the case of the replacement of less
than all Tranches of Loans then held by the respective Replaced Lender)
pursuant to Section 3.01, (y) in the case of any replacement of Revolving
Loan Commitments, each Letter of Credit Issuer an amount equal to such
Replaced Lender's RL Percentage of any Unpaid Drawing relating to Letters
of Credit issued by such Letter of Credit Issuer (which at such time
remains an Unpaid Drawing) to the extent such amount was not theretofore
funded by such Replaced Lender and (z) in the case of any replacement of
Revolving Loan Commitments, the Swingline Lender an amount equal to such
Replaced Lender's RL Percentage of any Mandatory Borrowing to the extent
such amount was not theretofore funded by such Replaced Lender; and
(ii) all Obligations of each Borrower then owing to the Replaced
Lender (other than those (a) specifically described in clause (i) above in
respect of which the assignment purchase price has been, or is concurrently
being, paid, but including all amounts, if any, owing under Section 1.11 or
(b) relating to any Tranche of Loans and/or Commitments of the respective
Replaced Lender which will remain outstanding after giving effect to the
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respective replacement) shall be paid in full to such Replaced Lender
concurrently with such replacement.
Upon the execution of the respective Assignment and Assumption Agreements, the
payment of amounts referred to in clauses (i) and (ii) above, recordation of the
assignment on the Register by the Administrative Agent pursuant to Section 15.17
and, if so requested by the Replacement Lender, delivery to the Replacement
Lender of the appropriate Note or Notes executed by the US Borrowers and/or the
Dutch Borrower, as the case may be, (x) the Replacement Lender shall become a
Lender hereunder and, unless the respective Replaced Lender continues to have
outstanding Term Loans and/or a Revolving Loan Commitment hereunder, the
Replaced Lender shall cease to constitute a Lender hereunder, except with
respect to indemnification provisions under this Agreement (including, without
limitation, Sections 1.10, 1.11, 2.05, 4.04, 15.01 and 15.06), which shall
survive as to such Replaced Lender and (y) the RL Percentages (if any) of the
Lenders shall be automatically adjusted at such time to give effect to such
replacement.
1.14 Special Sharing and Conversion Provisions Applicable to Lenders
---------------------------------------------------------------
Upon the Occurrence of a Sharing Event. (a) On the date of the occurrence of a
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Sharing Event, automatically (and without the taking of any further action) (x)
all then outstanding Euro Loans of a given Tranche (after giving effect to any
Mandatory Borrowings to occur on such date) shall be automatically converted
into Euro Loans of such Tranche which are maintained in Dollars (in an amount
equal to the Dollar Equivalent of the aggregate principal amount of the
respective Euro Loans on the date such Sharing Event first occurred, which Euro
Loans (i) shall continue to be owed by the US Borrowers and/or the Dutch
Borrower, as the case may be, (ii) shall at all times thereafter be deemed to be
Base Rate Loans and (iii) shall be immediately due and payable on the date such
Sharing Event has occurred), (y) all principal, accrued and unpaid interest and
other amounts owing with respect to such Euro Loans shall be immediately due and
payable in Dollars, taking the Dollar Equivalent of such principal, accrued and
unpaid interest and other amounts, and (z) the Total Commitment shall
automatically terminate as provided in Section 10. The occurrence of any
conversion of Euro Loans as provided above in this Section 1.14(a) shall be
deemed to constitute, for purposes of Section 1.11, a prepayment of the
respective Euro Loans before the last day of any Interest Period relating
thereto.
(b) Upon the occurrence of a Sharing Event, but only so long as any
Loans of the Dutch Borrower are then outstanding, the Lenders shall
automatically and without further action be deemed to have exchanged interests
in the respective Tranches of Loans (including, in the case of the Total
Revolving Loan Commitment, interests in each outstanding Letter of Credit and
Unpaid Drawing) such that, in lieu of the interests of each Lender in each
Tranche in which it shall participate as of such date, such Lender shall hold an
interest in all Tranches (including, in the case of the Total Revolving Loan
Commitment, an interest in each outstanding Letter of Credit, each Unpaid
Drawing and each LC Reserve Account established pursuant to Section 1.14(g)),
whether or not such Lender shall previously have participated therein, equal to
such Lender's Exchange Percentage thereof. The foregoing exchanges shall be
accomplished through the purchases and sales of participations in the relevant
Tranches and each Lender hereby agrees to enter into customary participation
agreements approved by the Administrative Agent to accomplish same. All
purchases and sales of participating interests pursuant to this Section 1.14
shall be made in Dollars. Upon any such occurrence, the Administrative Agent
shall notify each
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Lender and shall specify the amount of Dollars required from
each such Lender to effect the purchases and sales by the various Lenders of
participating interests in the amounts required above (together with accrued
interest with respect to the period for the most recent interest payment date
through the date of the Sharing Event plus any additional amounts payable by the
----
Borrowers pursuant to Section 4.04 in respect of such accrued but unpaid
interest), provided, in the event that a Sharing Event shall have occurred, each
--------
Lender shall be deemed to have purchased, automatically and without request,
such participating interests (and, as a result thereof, shall be entitled to
receive from, or shall owe to, the other Lenders the respective amounts owing as
a result of the purchases and sales of participations contemplated herein).
Promptly upon receipt of such request, each Lender shall deliver to the
Administrative Agent (in immediately available funds in Dollars) the net amounts
as specified by the Administrative Agent. The Administrative Agent shall
promptly deliver the amounts so received to the various Lenders in such amounts
as are needed to effect the purchases and sales of participations as provided
above. Promptly following receipt thereof, each Lender which has sold
participations in any of its Tranches as provided above (through the
Administrative Agent) will deliver to each Lender (through the Administrative
Agent) which has so purchased a participating interest in such Tranches a
participation certificate dated the date of receipt of such funds and in such
amount. It is understood that the amount of funds delivered by each Lender shall
be calculated on a net basis, giving effect to both the sales and purchases of
participations by the various Lenders as required above.
(c) Upon, and after, the occurrence of a Sharing Event (i) no further
Credit Events shall be made or occur, (ii) all amounts from time to time
accruing with respect to, and all amounts from time to time payable on account
of, Euro Loans (including, without limitation, any interest and other amounts
which were accrued but unpaid on the date of such Sharing Event) shall be
payable in Dollars as if each such Euro Loan had originally been made in Dollars
and shall be distributed by the relevant Lenders (or their Affiliates) to the
Administrative Agent for the account of the Lenders which made such Loans or are
participating therein and (iii) all Revolving Loan Commitments of all the RL
Lenders shall be automatically terminated. Notwithstanding anything to the
contrary contained above, the failure of any Lender to purchase its
participating interest as required above in any extensions of credit upon the
occurrence of a Sharing Event shall not relieve any other Lender of its
obligation hereunder to purchase its participating interests in a timely manner,
but no Lender shall be responsible for the failure of any other Lender to
purchase the participating interest to be purchased by such other Lender on any
date.
(d) If any amount required to be paid by any Lender pursuant to
Section 1.14(b) is not paid to the Administrative Agent on the date upon which
such Lender receives notice from the Administrative Agent of the amount of its
participations required to be purchased pursuant to said Section 1.14(b), such
Lender shall, in addition to such aforementioned amount, also pay to the
Administrative Agent on demand an amount equal to the product of (i) the amount
so required to be paid by such Lender for the purchase of its participations,
(ii) the daily average Federal Funds Rate, during the period from and including
the date of request for payment to the date on which such payment is immediately
available to the Administrative Agent and (iii) a fraction the numerator of
which is the number of days that elapsed during such period and the denominator
of which is 360. A certificate of the Administrative Agent submitted to any
Lender
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with respect to any amounts payable under this Section 1.14 shall be conclusive
in the absence of manifest error. Amounts payable by any Lender pursuant to this
Section 1.14 shall be paid to the Administrative Agent for the account of the
relevant Lenders, provided that, if the Administrative Agent (in its sole
--------
discretion) has elected to fund on behalf of such other Lender the amounts owing
to such other Lenders, then the amounts shall be paid to the Administrative
Agent for its own account.
(e) Whenever, at any time after the relevant Lenders have received
from any other Lenders purchases of participations pursuant to this Section
1.14, the various Lenders receive any payment on account thereof, such Lenders
will distribute to the Administrative Agent, for the account of the various
Lenders participating therein, such Lenders' participating interests in such
amounts (appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such participations were outstanding) in like
funds as received, provided, however, that in the event that such payment
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received by any Lenders is required to be returned, the Lenders who received
previous distributions in respect of their participating interests therein will
return to the respective Lenders any portion thereof previously so distributed
to them in like funds as such payment is required to be returned by the
respective Lenders.
(f) Each Lender's obligation to purchase participating interests
pursuant to this Section 1.14 shall be absolute and unconditional and shall not
be affected by any circumstance including, without limitation, (a) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have
against any other Lender, Holdings, any Borrower or any other Person for any
reason whatsoever, (b) the occurrence or continuance of an Event of Default, (c)
any adverse change in the condition (financial or otherwise) of Holdings, any
Borrower or any other Person, (d) any breach of this Agreement by Holdings, any
Borrower, any Lender or any other Person, or (e) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
(g) In the event that upon the occurrence of a Sharing Event any
Letter of Credit shall be outstanding and undrawn in whole or in part, or there
shall exist any Unpaid Drawing with respect to any Letter of Credit theretofore
issued, each RL Lender shall on the date of such occurrence, before giving
effect to the purchases and sales of participations on such date pursuant to
Section 1.14(b), promptly pay over to the Administrative Agent, in immediately
available funds in the currency in which such Letter of Credit is denominated
(or, in the case of an Unpaid Drawing with respect to a Letter of Credit
denominated in Euros, the Dollar Equivalent of such Unpaid Drawing), an amount
equal to such RL Lender's RL Percentage of such undrawn face amount or such
Unpaid Drawing, as applicable, together with interest thereon (denominated in
the relevant currency or the Dollar Equivalent thereof, as the case may be) from
the date of the Sharing Event to the date on which such amount shall be paid to
the Administrative Agent at a rate per annum equal to (i) in the case of an
amount in Dollars, the greater of the Federal Funds Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation and (ii) in the case of an amount in Euros, the Overnight
Euro Rate. The Administrative Agent shall establish a separate account or
accounts for each Lender in an amount equal to such Lender's Exchange Percentage
of the amounts received with respect to each such Letter of Credit pursuant to
the preceding sentence. The Administrative Agent shall have sole dominion and
control over each such
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account (each, an "LC Reserve Account"), and the amounts deposited in each LC
Reserve Account shall be held in such LC Reserve Account until withdrawn as
provided in clause (h), (i) or (j) below in this Section 1.14. The
Administrative Agent shall maintain records enabling it to determine the amounts
paid over to it and deposited in the LC Reserve Accounts in respect of each
Letter of Credit and the amounts on deposit in respect of each Letter of Credit
attributable to each Lender's Exchange Percentage. The amounts paid to the
Administrative Agent pursuant to this clause (g) shall be held as a reserve
against the Letter of Credit Outstandings, shall not constitute Loans to any
Borrower and shall not give rise to any obligation on the part of any Borrower
to pay interest to such Lender, it being agreed that the Borrowers'
reimbursement obligations in respect of Letters of Credit shall arise only at
such times as drawings or payments are made thereunder, as provided in Section
2.04.
(h) In the event that after the occurrence of a Sharing Event any
drawing or payment shall be made in respect of a Letter of Credit, the
Administrative Agent shall, at the request of the respective Letter of Credit
Issuer, withdraw from the LC Reserve Account of each of the Lenders (in
accordance with each Lender's Exchange Percentage) any amounts, up to the amount
of such drawing or payment, deposited in respect of such Letter of Credit and
remaining on deposit and deliver such amounts to such Letter of Credit Issuer in
satisfaction of the reimbursement obligations of the Lenders under Section
2.03(c) (but not of the applicable Borrower under Section 2.04(a)). In the event
that any Lender shall default on its obligation to pay over any amount to the
Administrative Agent in respect of any Letter of Credit as provided in Section
1.14(g), the respective Letter of Credit Issuer shall, in the event of a drawing
or payment thereunder, have a claim against such Lender to the same extent as if
such Lender had defaulted on its obligations under Section 2.03(c), but shall
have no claim against any other Lender, notwithstanding the exchange of
interests in the applicable Borrower's reimbursement obligations pursuant to
Section 1.14(b). Each other Lender shall have a claim against such defaulting
Lender for any damages sustained by it as a result of such default, including,
in the event such Letter of Credit shall expire undrawn, its Exchange Percentage
of the defaulted amount.
(i) In the event that after the occurrence of a Sharing Event any
Letter of Credit shall expire undrawn, the Administrative Agent shall withdraw
from the LC Reserve Account of each Lender the amount remaining on deposit
therein in respect of such Letter of Credit and distribute such amount to such
Lender, provided that, if such amount is not denominated in Dollars, the
--------
Administrative Agent shall distribute to each such Lender the Dollar Equivalent
of such amount.
(j) Pending the withdrawal of any amounts from its LC Reserve Account
as contemplated above in this Section 1.14, the Administrative Agent will, at
the direction of such Lender and subject to such rules as the Administrative
Agent may prescribe for the avoidance of inconvenience, invest such amounts in
Cash Equivalents.
(k) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, upon any purchase of participations as required above, (i) each
Lender which has purchased such participations shall be entitled to receive from
the US Borrowers or the Dutch Borrower, as the case may be, any increased costs
and indemnities (including, without limitation, pursuant to Sections 1.10, 1.11,
1.12, 2.05 and 4.04) directly from the US Borrowers or the
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Dutch Borrower, as the case may be, to the same extent as if it were the direct
Lender as opposed to a participant therein, which increased costs shall be
calculated without regard to Section 1.13, Section 15.04(a) or the penultimate
sentence of Section 15.04(b), and (ii) each Lender which has sold such
participations shall be entitled to receive from the US Borrowers or the Dutch
Borrower, as the case may be, indemnification from and against any and all taxes
imposed as a result of the sale of the participations pursuant to this Section
1.14. Each Borrower acknowledges and agrees that, upon the occurrence of a
Sharing Event and after giving effect to the requirements of this Section 1.14,
increased Taxes may be owing by it pursuant to Section 4.04, which Taxes shall
be paid (to the extent provided in Section 4.04) by the US Borrowers or the
Dutch Borrower, as the case may be, without any claim that the increased Taxes
are not payable because same resulted from the participations effected as
otherwise required by this Section 1.14.
SECTION 2. Letters of Credit.
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2.01 Letters of Credit. (a) Subject to and upon the terms and
-----------------
conditions set forth herein, the US Borrowers may request a Letter of Credit
Issuer at any time and from time to time on or after the Initial Borrowing Date
and prior to the tenth Business Day (or the 30th day in the case of Trade
Letters of Credit) preceding the Revolving Loan Maturity Date to issue on a
sight basis, (x) for the account of the US Borrowers and for the benefit of any
holder (or any trustee, agent or other similar representative for any such
holders) of L/C Supportable Indebtedness of RPP USA or any of its Subsidiaries,
irrevocable sight standby letters of credit in a form customarily used by such
Letter of Credit Issuer or in such other form as has been approved by such
Letter of Credit Issuer (each such standby letter of credit, a "Standby Letter
of Credit") in support of such L/C Supportable Indebtedness, and (y) for the
account of the US Borrowers and for the benefit of sellers of goods and
materials to RPP USA or any of its Subsidiaries in the ordinary course of
business, irrevocable sight trade letters of credit in a form customarily used
by such Letter of Credit Issuer or in such other form as has been approved by
such Letter of Credit Issuer (each such trade letter of credit, a "Trade Letter
of Credit," and each such Standby Letter of Credit and Trade Letter of Credit, a
"Letter of Credit" and, collectively, the "Letters of Credit").
(b) Subject to and upon the terms and conditions set forth herein,
each Letter of Credit Issuer hereby agrees that it will, at any time and from
time to time on or after the Initial Borrowing Date and prior to the tenth
Business Day (or the 30th day in the case of Trade Letters of Credit) preceding
the Revolving Loan Maturity Date, following its receipt of the respective Letter
of Credit Request, issue for the account of the US Borrowers one or more Letters
of Credit, (x) in the case of Trade Letters of Credit, in support of trade
obligations of RPP USA or any of its Subsidiaries that arise in the ordinary
course of business or (y) in the case of Standby Letters of Credit, in support
of such L/C Supportable Indebtedness of RPP USA or any of its Subsidiaries as is
permitted to remain outstanding hereunder. Notwithstanding the foregoing, no
Letter of Credit Issuer shall be under any obligation to issue any Letter of
Credit if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Letter of
Credit Issuer from issuing such Letter of Credit or any requirement of law
applicable to such Letter of Credit Issuer
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or any request or directive (whether or not having the force of law) from
any governmental authority with jurisdiction over such Letter of Credit
Issuer shall prohibit, or request that such Letter of Credit Issuer refrain
from, the issuance of letters of credit generally or such Letter of Credit
in particular or shall impose upon such Letter of Credit Issuer with
respect to such Letter of Credit any restriction or reserve or capital
requirement (for which such Letter of Credit Issuer is not otherwise
compensated) not in effect on the Effective Date, or any unreimbursed loss,
cost or expense which was not applicable, in effect or known to such Letter
of Credit Issuer as of the Effective Date and which such Letter of Credit
Issuer in good faith deems material to it; or
(ii) such Letter of Credit Issuer shall have received written notice
from any Borrower or the Required Lenders prior to the issuance of such
Letter of Credit of the type described in clause (vi) of Section 2.01(c) or
the last sentence of Section 2.02(b).
(c) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time, would
exceed either (x) $50,000,000 or (y) when added to the aggregate Principal
Amount of all Revolving Loans and Swingline Loans then outstanding, the Total
Revolving Loan Commitment at such time; (ii) each Standby Letter of Credit shall
have an expiry date occurring not later than the earlier of (x) one year after
such Standby Letter of Credit's date of issuance, provided that any such Standby
--------
Letter of Credit may be extendable for successive periods of up to one year, but
not beyond the tenth Business Day preceding the Revolving Loan Maturity Date, on
terms acceptable to the respective Letter of Credit Issuer, and (y) the tenth
Business Day preceding the Revolving Loan Maturity Date; (iii) each Trade Letter
of Credit shall have an expiry date occurring not later than the earlier of (x)
one year after such Trade Letter of Credit's date of issuance, and (y) 30 days
prior to the Revolving Loan Maturity Date; (iv) each Letter of Credit shall be
denominated in Dollars, provided, however, that Letters of Credit having an
-------- -------
aggregate Stated Amount not exceeding $25,000,000 may be denominated in Euros;
(v) the Stated Amount of each Letter of Credit shall not be less than $100,000
(or, in the case of a Letter of Credit denominated in Euros, the Dollar
Equivalent thereof) or such lesser amount as is acceptable to the respective
Letter of Credit Issuer; and (vi) no Letter of Credit Issuer will issue any
Letter of Credit after it has received written notice from any Borrower or the
Required Lenders stating that a Default or an Event of Default exists until such
time as such Letter of Credit Issuer shall have received a written notice of (x)
rescission of such notice from the party or parties originally delivering the
same or (y) a waiver of such Default or Event of Default by the Required
Lenders.
(d) Notwithstanding the foregoing, in the event that a Lender Default
exists, no Letter of Credit Issuer shall be required to issue any Letter of
Credit unless the respective Letter of Credit Issuer has entered into
arrangements satisfactory to it and the US Borrowers to eliminate such Letter of
Credit Issuer's risk with respect to the participation in Letters of Credit of
the Defaulting Lender or Defaulting Lenders, including by cash collateralizing
(in the applicable Approved Currency) such Defaulting Lender's or Lenders' RL
Percentage of the Letter of Credit Outstandings.
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2.02 Letter of Credit Requests; Letter of Credit Reports. (a)
---------------------------------------------------
Whenever the US Borrowers desire that a Letter of Credit be issued for their
account, an Authorized Officer of the US Borrowers shall give the Administrative
Agent and the respective Letter of Credit Issuer written notice thereof, prior
to 12:00 Noon (Local time), at least three Business Days (or such shorter period
as may be acceptable to the respective Letter of Credit Issuer) prior to the
proposed date of issuance (which shall be a Business Day), which written notice
shall be in the form of Exhibit C (each, a "Letter of Credit Request"). Each
Letter of Credit Request shall include any other documents as such Letter of
Credit Issuer customarily requires in connection therewith.
(b) The making of each Letter of Credit Request shall be deemed to be
a representation and warranty by the US Borrowers that such Letter of Credit may
be issued in accordance with, and it will not violate the requirements of,
Section 2.01(c). Unless the respective Letter of Credit Issuer has received
notice from any Borrower, the Administrative Agent or the Required Lenders
before it issues a Letter of Credit that one or more of the applicable
conditions specified in Section 5 or 6, as the case may be, are not then
satisfied, or that the issuance of such Letter of Credit would violate Section
2.01(c), then such Letter of Credit Issuer may issue the requested Letter of
Credit for the account of the US Borrowers in accordance with such Letter of
Credit Issuer's usual and customary practice.
(c) Following the issuance of a Letter of Credit by any Letter of
Credit Issuer and only so long as such Letter of Credit remains outstanding,
such Letter of Credit Issuer shall deliver (i) to the Administrative Agent on
the first Business Day of each week, a written report setting forth the dates of
issuance and expiration of such Letter of Credit and (ii) to each RL Lender on
the first Business Day of each month, a written report setting forth the dates
of issuance and expiration of such Letter of Credit. In addition, on the 15th
day (or if such day is not a Business Day, the immediately succeeding Business
Day) of each March, June, September and December of each year, each Letter of
Credit Issuer shall deliver to the Administrative Agent and each RL Lender, a
written report detailing the aggregate Stated Amount of all Letters of Credit
issued by such Letter of Credit Issuer during the preceding calendar quarter.
2.03 Letter of Credit Participations. (a) Immediately upon the
-------------------------------
issuance by a Letter of Credit Issuer of any Letter of Credit, such Letter of
Credit Issuer shall be deemed to have sold and transferred to each other RL
Lender, and each such RL Lender (each, a "Participant") shall be deemed
irrevocably and unconditionally to have purchased and received from such Letter
of Credit Issuer, without recourse or warranty, an undivided interest and
participation, to the extent of such Participant's RL Percentage, in such Letter
of Credit, each substitute Letter of Credit, each drawing made thereunder and
the obligations of the US Borrowers under this Agreement with respect thereto
(although Letter of Credit Fees shall be payable directly to the Administrative
Agent for the account of the RL Lenders as provided in Section 3.01(b) and the
Participants shall have no right to receive any portion of any Facing Fees with
respect to such Letters of Credit) and any security therefor or guaranty
pertaining thereto. Upon any change in the Revolving Loan Commitments or the RL
Percentages of the RL Lenders pursuant to Section 1.13 or 15.04(b), it is hereby
agreed that, with respect to all outstanding Letters of Credit and Unpaid
Drawings with respect thereto, there shall be an automatic adjustment to the
participations pursuant to this Section 2.03 to reflect the new RL Percentages
of the assigning and assignee RL Lender or of all RL Lenders, as the case may
be.
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(b) In determining whether to pay under any Letter of Credit, no
Letter of Credit Issuer shall have any obligation relative to the Participants
other than to determine that any documents required to be delivered under such
Letter of Credit have been delivered and that they appear to substantially
comply on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by any Letter of Credit Issuer under or in
connection with any Letter of Credit issued by it if taken or omitted in the
absence of gross negligence or willful misconduct (as determined by a court of
competent jurisdiction in a final and non-appealable decision), shall not create
for such Letter of Credit Issuer any resulting liability.
(c) In the event that any Letter of Credit Issuer makes any payment
under any Letter of Credit issued by it and the US Borrowers shall not have
reimbursed such amount in full to the Letter of Credit Issuer pursuant to
Section 2.04(a), such Letter of Credit Issuer shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify each
Participant of such failure, and each such Participant shall promptly and
unconditionally pay to the Administrative Agent for the account of such Letter
of Credit Issuer, the amount of such Participant's RL Percentage of such payment
in Dollars (or, in the case of any unreimbursed payment made in Euros, of the
Dollar Equivalent of such unreimbursed payment, as determined by the respective
Letter of Credit Issuer on the date on which such unreimbursed payment was made
by such Letter of Credit Issuer) and in same day funds. If the Administrative
Agent so notifies any Participant required to fund a payment under a Letter of
Credit prior to 12:00 Noon (Local time) on any Business Day, such Participant
shall make available to the Administrative Agent at the applicable Payment
Office for the account of the respective Letter of Credit Issuer in Dollars (or,
in the case of any unreimbursed payment made in Euros, of the Dollar Equivalent
thereof) such Participant's RL Percentage of the amount of such payment on such
Business Day in same day funds (and, to the extent such notice is given after
12:00 Noon (Local time) on any Business Day, such Participant shall make such
payment on the immediately following Business Day). If and to the extent such
Participant shall not have so made its RL Percentage of the amount of such
payment available to the Administrative Agent for the account of the respective
Letter of Credit Issuer, such Participant agrees to pay to the Administrative
Agent for the account of such Letter of Credit Issuer, forthwith on demand such
amount, together with interest thereon, for each day from such date until the
date such amount is paid to the Administrative Agent for the account of the
Letter of Credit Issuer at the overnight Federal Funds Rate (or, in the case of
amounts owed in Euros, at such Letter of Credit Issuer's customary rate for
interbank advances) for the first three days and at the interest rate applicable
to Dollar Revolving Loans that are maintained as Base Rate Loans for each day
thereafter. The failure of any Participant to make available to the
Administrative Agent for the account of the respective Letter of Credit Issuer
its RL Percentage of any payment under any Letter of Credit issued by it shall
not relieve any other Participant of its obligation hereunder to make available
to the Administrative Agent for the account of such Letter of Credit Issuer its
applicable RL Percentage of any payment under any such Letter of Credit on the
date required, as specified above, but no Participant shall be responsible for
the failure of any other Participant to make available to the Administrative
Agent for the account of such Letter of Credit Issuer such other Participant's
RL Percentage of any such payment.
(d) Whenever any Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of such Letter of Credit Issuer any payments from the Participants
pursuant to clause (c) above, such Letter of
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Credit Issuer shall pay to the Administrative Agent and the Administrative Agent
shall promptly pay to each Participant which has paid its RL Percentage thereof,
in Dollars (or, in the case of any payment received in Euros, of the Dollar
Equivalent thereof) and in same day funds, an amount equal to such Participant's
RL Percentage (based upon the proportionate aggregate amount originally funded
by such Participant to the aggregate amount funded by all Participants) of the
principal amount thereof and interest thereon accruing after the purchase of the
respective participations.
(e) Each Letter of Credit Issuer shall, promptly after each issuance
of, amendment or modification to, or termination of, a Standby Letter of Credit
issued by it, give the Administrative Agent, each Participant and each Borrower
written notice of the issuance of, amendment or modification to, or termination
of, such Standby Letter of Credit, which notice (except in the case of a
termination of a Standby Letter of Credit) shall be accompanied by a copy of the
Standby Letter of Credit or Standby Letters of Credit issued by it and each such
amendment or modification thereto.
(f) Each Letter of Credit Issuer shall deliver to the Administrative
Agent, promptly on the first Business Day of each week, by facsimile
transmission, the aggregate daily Stated Amount available to be drawn under the
outstanding Trade Letters of Credit issued by such Letter of Credit Issuer for
the previous week.
(g) The obligations of the Participants to make payments to the
Administrative Agent for the account of the respective Letter of Credit Issuer
with respect to Letters of Credit issued by it shall be irrevocable and not
subject to counterclaim, set-off or other defense or any other qualification or
exception whatsoever and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances, including, without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any
of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right
which Holdings or any of its Subsidiaries may have at any time against a
beneficiary named in a Letter of Credit, any transferee of any Letter of
Credit (or any Person for whom any such transferee may be acting), any
Agent, any Letter of Credit Issuer, any Lender, or any other Person,
whether in connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions (including
any underlying transaction between Holdings or any of its Subsidiaries and
the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or other document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
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(v) the occurrence of any Default or Event of Default.
2.04 Agreement to Repay Letter of Credit Drawings. (a) The US
--------------------------------------------
Borrowers hereby jointly and severally agree to reimburse each Letter of Credit
Issuer, by making payment to the Administrative Agent in Dollars (or, in the
case of any payment or disbursement made by such Letter of Credit Issuer in
Euros, of the Dollar Equivalent of such payment or disbursement as determined by
such Letter of Credit Issuer on the date of such payment or disbursement) and in
immediately available funds at the applicable Payment Office, for any payment or
disbursement made by such Letter of Credit Issuer under any Letter of Credit
issued by it (each such amount so paid or disbursed until reimbursed, an "Unpaid
Drawing") immediately after, and in any event on the date of (or, if not
notified by the respective Letter of Credit Issuer prior to 1:00 P.M. (Local
time) on the date of such payment or disbursement, on the Business Day
following) such payment or disbursement, with interest on the amount so paid or
disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to
2:00 P.M. (Local time) on the date of such payment or disbursement, from and
including the date paid or disbursed to but not including the date such Letter
of Credit Issuer is reimbursed therefor at a rate per annum which shall be the
Applicable Margin for Dollar Revolving Loans maintained as Base Rate Loans plus
----
the Base Rate, each as in effect from time to time (plus an additional 2% per
annum if not reimbursed by the third Business Day after the date of such payment
or disbursement), such interest also to be payable on demand; provided that it
--------
is understood and agreed, however, that the notices referred to above in this
clause (a) shall not be required to be given if a Default or an Event of Default
under such Section 10.05 shall have occurred and be continuing, in which case
the Unpaid Drawings shall be due and payable immediately without presentment,
demand, protest or notice of any kind (all of which are hereby waived by each
Credit Party) and shall bear interest at a rate per annum which shall be (x)
until the third Business Day following the respective Drawing, the Applicable
Margin for Dollar Revolving Loans maintained as Base Rate Loans plus the Base
----
Rate, each as in effect from time to time, and (y) at all times on and after the
third Business Day following the respective Drawing, the rate per annum
specified in preceding clause (x) plus 2%. Each Letter of Credit Issuer shall
----
provide the US Borrowers prompt notice of any payment or disbursement made by it
under any Letter of Credit issued by it, although the failure of, or delay in,
giving any such notice shall not release or diminish the obligations of the US
Borrowers under this Section 2.04(a) or under any other Section of this
Agreement.
(b) The obligations of the US Borrowers under this Section 2.04 to
reimburse the respective Letter of Credit Issuer with respect to drawings on
Letters of Credit (including, in each case, interest thereon) shall be absolute
and unconditional under any and all circumstances and irrespective of any
setoff, counterclaim or defense to payment which Holdings or any of its
Subsidiaries may have or have had against such Letter of Credit Issuer, any
Agent, any Lender or any other Person, including, without limitation, any
defense based upon the failure of any drawing under a Letter of Credit issued by
it to conform to the terms of the Letter of Credit or any nonapplication or
misapplication by the beneficiary of the proceeds of such drawing; provided
--------
however, that the US Borrowers shall not be obligated to reimburse such Letter
- -------
of Credit Issuer for any wrongful payment made by such Letter of Credit Issuer
under a Letter of Credit issued by it as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of such Letter
of Credit Issuer (as determined by a court of competent jurisdiction in a final
and non-appealable decision); provided further, that any reimbursement
----------------
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made by the US Borrowers shall be without prejudice to any claim it may have
against such Letter of Credit Issuer as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of such Letter
of Credit Issuer (as determined by a court of competent jurisdiction in a final
and non-appealable decision).
2.05 Increased Costs. If after the Effective Date, any Letter of
---------------
Credit Issuer or any Participant shall have determined that the adoption or
effectiveness of any applicable law, rule or regulation, order, guideline or
request or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Letter of Credit Issuer or any Participant with any request or directive
(whether or not having the force of law) by any such authority, central bank or
comparable agency shall either (i) impose, modify or make applicable any
reserve, deposit, capital adequacy or similar requirement against Letters of
Credit issued by such Letter of Credit Issuer or such Participant's
participation therein, or (ii) impose on any Letter of Credit Issuer or any
Participant any other conditions directly or indirectly affecting this
Agreement, any Letter of Credit or such Participant's participation therein; and
the result of any of the foregoing is to increase the cost to such Letter of
Credit Issuer or such Participant of issuing, maintaining or participating in
any Letter of Credit, or to reduce the amount of any sum received or receivable
by such Letter of Credit Issuer or such Participant hereunder or reduce the rate
of return on its capital (other than any increased costs or reduction in the
amount received or receivable resulting from the imposition of, or a change in
the rate of, taxes or any similar charges) with respect to Letters of Credit,
then, upon written demand to the US Borrowers, by such Letter of Credit Issuer
or such Participant (a copy of which notice shall be sent by such Letter of
Credit Issuer or such Participant to the Administrative Agent), accompanied by
the certificate described in the last sentence of this Section 2.05, the US
Borrowers jointly and severally agree, subject to the provisions of Section
15.18 (to the extent applicable), to pay to such Letter of Credit Issuer or such
Participant such additional amount or amounts as will compensate such Letter of
Credit Issuer or such Participant for such increased cost or reduction. Any
Letter of Credit Issuer or any Participant, upon determining that any additional
amounts will be payable pursuant to this Section 2.05, will give prompt written
notice thereof to the US Borrowers, which notice shall include a certificate
submitted to the US Borrowers by such Letter of Credit Issuer or such
Participant, as the case may be (a copy of which certificate shall be sent by
such Letter of Credit Issuer or such Participant to the Administrative Agent),
setting forth in reasonable detail the basis for the determination of such
additional amount or amounts necessary to compensate such Letter of Credit
Issuer or such Participant as aforesaid and such certificate, if delivered in
good faith, shall be final and conclusive and binding on the US Borrowers absent
manifest error, although the failure to deliver any such certificate shall not
release or diminish the US Borrowers' obligations to pay additional amounts
pursuant to this Section 2.05 upon subsequent receipt of such certificate.
SECTION 3. Fees; Commitments.
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3.01 Fees. (a) The US Borrowers jointly and severally agree to pay
----
to the Administrative Agent for distribution to each Non-Defaulting Lender with
a Revolving Loan Commitment, a commitment fee (the "Commitment Fee") for the
period from the Effective Date to but not including the Revolving Loan Maturity
Date (or such earlier date as the Total
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Revolving Loan Commitment shall have been terminated), computed at a rate for
each day equal to the Applicable Commitment Fee Percentage (as in effect from
time to time) on the daily average Unutilized Revolving Loan Commitment of such
Non-Defaulting Lender. Accrued Commitment Fees shall be due and payable in
Dollars quarterly in arrears on each Quarterly Payment Date and on the Revolving
Loan Maturity Date (or such earlier date upon which the Total Revolving Loan
Commitment is terminated).
(b) The US Borrowers jointly and severally agree to pay to the
Administrative Agent for pro rata distribution to each RL Lender (based on its
--- ----
respective RL Percentage), a fee in respect of each Letter of Credit (the
"Letter of Credit Fee") computed at a rate per annum equal to the Applicable
Margin for Dollar Revolving Loans maintained as Eurodollar Loans then in effect
on the daily Stated Amount of such Letter of Credit. Accrued Letter of Credit
Fees shall be due and payable in Dollars quarterly in arrears on each Quarterly
Payment Date and upon the first day on or after the termination of the Total
Revolving Loan Commitment upon which no Letters of Credit remain outstanding.
(c) The US Borrowers jointly and severally agree to pay to each
Letter of Credit Issuer a fee in respect of each Letter of Credit issued by such
Letter of Credit Issuer (the "Facing Fee") computed at the rate of 1/4 of 1% per
annum on the daily Stated Amount of such Letter of Credit; provided that in no
--------
event shall the annual Facing Fee with respect to each Letter of Credit be less
than $500 (or, in the case of a Letter of Credit denominated in Euros, the
Dollar Equivalent thereof); it being agreed that (x) on the date of issuance of
any Letter of Credit and on each anniversary thereof prior to the termination of
such Letter of Credit, if $500 (or the Dollar Equivalent thereof, as the case
may be) will exceed the amount of Facing Fees that will accrue with respect to
such Letter of Credit for the immediately succeeding 12-month period, the full
$500 (or the Dollar Equivalent thereof, as the case may be) shall be payable on
the date of issuance of such Letter of Credit and on each such anniversary
thereof prior to the termination of such Letter of Credit and (y) if on the date
of the termination of any Letter of Credit, $500 (or the Dollar Equivalent
thereof, as the case may be) actually exceeds the amount of Facing Fees paid or
payable with respect to such Letter of Credit for the period beginning on the
date of the issuance thereof (or if the respective Letter of Credit has been
outstanding for more than one year, the date of the last anniversary of the
issuance thereof occurring prior to the termination of such Letter of Credit)
and ending on the date of the termination thereof, an amount equal to such
excess shall be paid as additional Facing Fees with respect to such Letter of
Credit on the next date upon which Facing Fees are payable in accordance with
the immediately succeeding sentence. Except as provided in the immediately
preceding sentence, accrued Facing Fees shall be due and payable in Dollars
quarterly in arrears on each Quarterly Payment Date and upon the first day on or
after the termination of the Total Revolving Loan Commitment upon which no
Letters of Credit remain outstanding.
(d) The US Borrowers jointly and severally agree to pay directly to
each Letter of Credit Issuer upon each issuance of, payment under, and/or
amendment of, a Letter of Credit issued by such Letter of Credit Issuer such
amount as shall at the time of such issuance, payment or amendment be the
administrative charge which such Letter of Credit Issuer is generally charging
for issuances of, payments under or amendments of, letters of credit issued by
it.
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(e) Each Borrower agrees to pay to each Agent, for its own account,
such other fees as may be agreed to in writing from time to time between such
Borrower and such Agent, when and as due.
(f) All computations of Fees shall be made in accordance with Section
15.07(b).
3.02 Voluntary Termination or Reduction of Total Unutilized Revolving
----------------------------------------------------------------
Loan Commitment. (a) Upon at least three Business Days' prior notice to the
- ---------------
Administrative Agent at the applicable Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Lenders), the US
Borrowers shall have the right, without premium or penalty, to terminate or
partially reduce the Total Unutilized Revolving Loan Commitment; provided that
--------
(i) any such termination or partial reduction shall apply to proportionately and
permanently reduce the Revolving Loan Commitment of each Lender with such a
Commitment and (ii) any partial reduction pursuant to this Section 3.02(a) shall
be in integral multiples of $1,000,000.
(b) In the event of certain refusals by a Lender to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Lenders as (and to the
extent) provided in Section 15.12(b), the Borrowers shall have the right,
subject to obtaining the consents required by Section 15.12(b), upon five
Business Days' prior written notice to the Administrative Agent at the
applicable Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Lenders), to terminate the entire Revolving Loan
Commitment of such Lender, so long as all Loans (other than Term Loans that are
not being repaid pursuant to Section 15.12(b)), together with accrued and unpaid
interest, Fees and all other amounts, owing to such Lender (including all
amounts, if any, owing pursuant to Section 1.11, but excluding amounts owing in
respect of Term Loans maintained by such Lender, if such Term Loans are not
being repaid pursuant to Section 15.12(b)) are repaid concurrently with the
effectiveness of such termination (at which time Schedule I shall be deemed
modified to reflect such changed amounts) and at such time, unless the
respective Lender continues to have outstanding Term Loans hereunder, such
Lender shall no longer constitute a "Lender" for purposes of this Agreement,
except with respect to indemnifications under this Agreement (including, without
limitation, Sections 1.10, 1.11, 2.05, 4.04, 15.01 and 15.06), which shall
survive as to such repaid Lender.
3.03 Mandatory Reduction of Commitments. (a) The Total Commitment
----------------------------------
shall terminate in its entirety on December 1, 2000 unless the Initial Borrowing
Date has occurred on or before such date.
(b) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total A Euro Term Loan Commitment shall terminate in
its entirety on the Initial Borrowing Date (after giving effect to the making of
A Euro Term Loans on such date).
(c) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total B Term Loan Commitment shall terminate in its
entirety on the Initial Borrowing Date (after giving effect to the making of the
B Term Loans on such date).
-33-
(d) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Revolving Loan Commitment shall terminate in its
entirety on the Revolving Loan Maturity Date.
(e) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Revolving Loan Commitment shall be permanently
reduced from time to time in accordance with the provisions of Section 4.02.
(f) Each reduction to, or termination of, the Total A Euro Term Loan
Commitment, the Total B Term Loan Commitment and the Total Revolving Loan
Commitment pursuant to this Section 3.03 or Section 4.02 shall be applied
proportionately to reduce or terminate the A Euro Term Loan Commitment, the B
Term Loan Commitment or the Revolving Loan Commitment, as the case may be, of
each Lender with such a Commitment.
SECTION 4. Payments.
--------
4.01 Voluntary Prepayments. The US Borrowers and the Dutch Borrower
---------------------
shall have the right to prepay the Loans made to them, and the right to allocate
such prepayments to Term Loans, Revolving Loans and/or Swingline Loans as the
applicable Borrowers or Borrower elect, in whole or in part, without premium or
penalty except as otherwise provided in this Agreement, from time to time on the
following terms and conditions:
(i) the US Borrowers or the Dutch Borrower, as the case may be,
shall give the Administrative Agent at the applicable Notice Office written
notice (or telephonic notice promptly confirmed in writing) of its intent
to prepay the Loans, whether such Loans are A Euro Term Loans, B Term
Loans, Revolving Loans or Swingline Loans, the amount of such prepayment,
the Types of Loans to be repaid and (in the case of Euro Rate Loans) the
specific Borrowing(s) pursuant to which such Euro Rate Loans were made,
which notice (I) shall be given by the US Borrowers or the Dutch Borrower,
as the case may be, (x) prior to 12:00 Noon (Local time) at least one
Business Day prior to the date of such prepayment in the case of Loans
maintained as Base Rate Loans (other than Dollar Swingline Loans), (y)
prior to 12:00 Noon (Local time) at least three Business Days prior to the
date of such prepayment in the case of Euro Rate Loans (other than Euro
Swingline Loans) and (z) prior to 12:00 Noon (Local time) on the date of
such prepayment in the case of Swingline Loans, and (II) shall, except in
the case of Swingline Loans, promptly be transmitted by the Administrative
Agent to each of the Lenders;
(ii) each prepayment (other than prepayments in full of (I) all
outstanding Base Rate Loans of a Tranche or (II) any outstanding Borrowing
of Euro Rate Loans of a Tranche) shall be in an aggregate Principal Amount
of at least (x) $1,000,000, in the case of Term Loans, (y) $500,000, in the
case of Revolving Loans, and (z) $100,000, in the case of Swingline Loans
and, in each case, if greater, in integral multiples of $100,000, provided
--------
that (A) if any partial prepayment of Eurodollar Loans made pursuant to any
Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount
applicable thereto, then such Borrowing may not be continued as a Borrowing
of Eurodollar Loans beyond the Interest
-34-
Period applicable thereto and any election of an Interest Period with
respect thereto given by any Borrower shall have no force or effect and (B)
in the case of partial prepayments of any Borrowing of Euro Loans (other
than Euro Swingline Loans), (a) in the case of Euro Revolving Loans, the US
Borrowers or the Dutch Borrower, as applicable, shall repay any Borrowings
which are less than the Minimum Borrowing Amount applicable thereto at the
end of the then current Interest Period, and (b) in the case of A Euro Term
Loans, the Dutch Borrower shall cooperate with the Administrative Agent in
selecting Interest Periods at the end of the then current Interest Period
or Interest Periods so as to align such Borrowing with the Interest Periods
applicable to one or more other Borrowings of such A Euro Term Loans;
(iii) at the time of any prepayment of Euro Rate Loans (other than
Euro Swingline Loans) pursuant to this Section 4.01 on any date other than
the last day of the Interest Period applicable thereto, the US Borrowers or
the Dutch Borrower, as the case may be, shall pay the amounts required
pursuant to Section 1.11;
(iv) except as provided in clause (vii) below, each prepayment in
respect of any Loans made pursuant to a Borrowing shall be applied pro rata
--- ----
among such Loans, provided that, at the US Borrowers' or the Dutch
--------
Borrower's, as the case may be, election in connection with any prepayment
of Revolving Loans pursuant to this Section 4.01, such prepayment shall not
be applied to any Revolving Loans of a Defaulting Lender;
(v) in the case of any voluntary prepayment of B Term Loans
pursuant to this Section 4.01 (other than pursuant to clause (vii) below)
made (x) on or prior to November 14, 2001, such prepayment shall be in an
amount equal to the product of (A) the principal amount specified pursuant
to clause (i) of this Section 4.01 to be allocated to such B Term Loans
multiplied by (B) 102%, and (y) made after November 14, 2001 and on or
prior to November 14, 2002, such prepayment shall be in an amount equal to
the product of (A) the principal amount specified pursuant to clause (i) of
this Section 4.01 to be allocated to such B Term Loans multiplied by (B)
101%;
(vi) except for a prepayment pursuant to clause (vii) of this
Section 4.01, each prepayment of principal of any Tranche of Term Loans
pursuant to this Section 4.01 shall be applied to reduce the remaining
Scheduled Repayments of such Tranche of Term Loans in direct order of
maturity (based upon the then remaining principal amounts of such Scheduled
Repayments after giving effect to all prior reductions thereto); and
(vii) in the event of certain refusals by a Lender to consent to
certain proposed changes, waivers, discharges or terminations with respect
to this Agreement which have been approved by the Required Lenders as (and
to the extent) provided in Section 15.12(b), the US Borrowers or the Dutch
Borrower, as the case may be, may, upon five Business Days' prior written
notice to the Administrative Agent at the applicable Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the
Lenders), repay all Loans of such Lender (including all amounts, if any,
owing pursuant to Section 1.11), together with accrued and unpaid interest,
Fees and all other amounts then owing to such Lender (or owing to such
Lender with respect to each Tranche which
-35-
gave rise to the need to obtain such Lender's individual consent) in
accordance with said Section 15.12(b), so long as (A) in the case of the
repayment of Revolving Loans of any Lender pursuant to this clause (vii),
the Revolving Loan Commitment of such Lender is terminated concurrently
with such repayment (at which time Schedule I shall be deemed modified to
reflect the changed Revolving Loan Commitments), (B) in the case of any
prepayment of principal of any Tranche of Term Loans pursuant to this
clause (vii), such prepayment shall be applied to reduce the remaining
Scheduled Repayments of such Tranche of Term Loans on a pro rata basis
--- ----
(based upon the then remaining principal amounts of such Scheduled
Repayments after giving effect to all prior reductions thereto), and (C)
the consents required by Section 15.12(b) in connection with the repayment
pursuant to this clause (vii) shall have been obtained.
4.02 Mandatory Repayments and Commitment Reductions. (a) (i) If on
----------------------------------------------
any date the sum of (x) the aggregate outstanding Principal Amount of Revolving
Loans (after giving effect to all other repayments thereof on such date) and
Swingline Loans (after giving effect to all other repayments thereof on such
date) and (y) the Letter of Credit Outstandings on such date, exceeds the Total
Revolving Loan Commitment as then in effect, the US Borrowers (on a joint and
several basis) and/or the Dutch Borrower, as applicable, shall repay on such
date the principal of Swingline Loans and, after all Swingline Loans have been
repaid in full or if no Swingline Loans are outstanding, the US Borrowers (on a
joint and several basis) and/or the Dutch Borrower, as applicable, shall repay
on such date the principal of Revolving Loans, in either case, in an aggregate
amount equal to such excess. If, after giving effect to the prepayment of all
outstanding Swingline Loans and all outstanding Revolving Loans, the aggregate
amount of Letter of Credit Outstandings exceeds the Total Revolving Loan
Commitment as then in effect, the US Borrowers (on a joint and several basis)
shall pay to the Administrative Agent at the applicable Payment Office on such
date an amount in cash and/or Cash Equivalents equal to such excess (up to the
aggregate amount of Letter of Credit Outstandings at such time) and the
Administrative Agent shall hold such payment as security for the obligations of
the US Borrowers hereunder pursuant to a cash collateral agreement to be entered
into in form and substance reasonably satisfactory to the Administrative Agent.
(ii) If on any date the aggregate outstanding Principal Amount of
Revolving Loans (after giving effect to all other prepayments on such date) and
Swingline Loans (after giving effect to all other prepayments on such date) made
to the Dutch Borrower exceeds the Dutch Borrower Revolving Loan Sublimit, the
Dutch Borrower shall prepay on such date the principal of Swingline Loans
incurred by it and, after all such Swingline Loans have been repaid in full or
if no such Swingline Loans are outstanding, the Dutch Borrower prepay on such
date the principal of Revolving Loans incurred by it, in either case, in an
aggregate amount equal to such excess.
(b) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
Dutch Borrower shall be required to repay that principal amount of A Euro Term
Loans, to the extent then outstanding, as is set forth opposite each such date
(each such repayment, as the same may be reduced as provided in Sections 4.01
and 4.02(i), an "A Euro Scheduled Repayment"):
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A Euro Scheduled Repayment Date Amount
- ------------------------------- ------
March 31, 2001 (Euro)969,628
June 30, 2001 (Euro)969,628
September 30, 2001 (Euro)969,628
December 31, 2001 (Euro)969,628
March 31, 2002 (Euro)969,628
June 30, 2002 (Euro)969,628
September 30, 2002 (Euro)969,628
December 31, 2002 (Euro)969,628
March 31, 2003 (Euro)969,628
June 30, 2003 (Euro)969,628
September 30, 2003 (Euro)969,628
December 31, 2003 (Euro)969,628
March 31, 2004 (Euro)969,628
June 30, 2004 (Euro)969,628
September 30, 2004 (Euro)969,628
December 31, 2004 (Euro)969,628
March 31, 2005 (Euro)969,628
June 30, 2005 (Euro)969,628
September 30, 2005 (Euro)969,628
December 31, 2005 (Euro)969,628
March 31, 2006 (Euro)969,628
June 30, 2006 (Euro)969,628
September 30, 2006 (Euro)969,628
A Euro Term Loan Maturity Date (Euro)94,065,577.60
(c) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the US
Borrowers (on a joint and several basis) shall be required to repay that
principal amount of B Term Loans, to the extent then outstanding, as is set
forth opposite each such date (each such repayment, as the same may be reduced
as provided in Sections 4.01 and 4.02(i), a "B Scheduled Repayment"):
B Scheduled Repayment Date Amount
- -------------------------- ------
March 31, 2001 $875,000
June 30, 2001 $875,000
September 30, 2001 $875,000
December 31, 2001 $875,000
March 31, 2002 $875,000
June 30, 2002 $875,000
-37-
B Scheduled Repayment Date Amount
- ------------------------------- ------
September 30, 2002 $875,000
December 31, 2002 $875,000
March 31, 2003 $875,000
June 30, 2003 $875,000
September 30, 2003 $875,000
December 31, 2003 $875,000
March 31, 2004 $875,000
June 30, 2004 $875,000
September 30, 2004 $875,000
December 31, 2004 $875,000
March 31, 2005 $875,000
June 30, 2005 $875,000
September 30, 2005 $875,000
December 31, 2005 $875,000
March 31, 2006 $875,000
June 30, 2006 $875,000
September 30, 2006 $875,000
December 31, 2006 $875,000
March 31, 2007 $875,000
June 30, 2007 $875,000
September 30, 2007 $875,000
December 31, 2007 $875,000
March 31, 2008 $875,000
June 30, 2008 $875,000
September 30, 2008 $875,000
B Term Loan Maturity Date $322,875,000
(d) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the Effective
Date on which Holdings or any of its Subsidiaries receives Net Sale Proceeds
from any Asset Sale, an amount equal to the Applicable Prepayment Percentage of
the Net Sale Proceeds from such Asset Sale shall be applied as a mandatory
repayment and/or commitment reduction in accordance with the requirements of
Sections 4.02(i) and (j); provided that with respect to no more than $25,000,000
--------
in the aggregate of such Net Sale Proceeds received by Holdings and its
Subsidiaries in any fiscal year of Holdings, such Net Sale Proceeds shall not
give rise to a mandatory repayment (and/or commitment reduction, as the case may
be) on such date to the extent that no Default or Event of Default then exists
and such Net Sale Proceeds shall be used or contractually committed to be used
to purchase assets used or to be used in the businesses permitted pursuant to
Section 9.01
-38-
(including, without limitation (but only to the extent permitted by Section
9.02), the purchase of the capital stock of a Person engaged in such businesses)
within 350 days following the date of receipt of such Net Sale Proceeds from
such Asset Sale; and provided further, that (i) if all or any portion of such
----------------
Net Sale Proceeds are not so used (or contractually committed to be used) within
such 350-day period, such remaining portion shall be applied on the last day of
such period (or such earlier date, if any, as Holdings or the relevant
Subsidiary determines not to reinvest the Net Sale Proceeds from such Asset Sale
as set forth above) as a mandatory repayment and/or commitment reduction as
provided above (without giving effect to the immediately preceding proviso) and
(ii) if all or any portion of such Net Sale Proceeds are not so used within such
350-day period referred to in clause (i) of this proviso because such amount is
contractually committed to be used and subsequent to such date such contract is
terminated or expires without such portion being so used, such remaining portion
shall be applied on the date of such termination or expiration as a mandatory
repayment and/or commitment reduction as provided above (without giving effect
to the immediately preceding proviso). Notwithstanding the foregoing provisions
of this Section 4.02(d), so long as no Default or Event of Default shall have
occurred and be continuing, no mandatory repayments or commitment reductions
shall be required pursuant to the immediately preceding proviso appearing in
this Section 4.02(d) until the date on which the aggregate Net Sale Proceeds
from all Asset Sales not reinvested within the time periods specified by said
proviso equals or exceeds $2,000,000.
(e) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the Effective
Date on which Holdings or any of its Subsidiaries receives any cash proceeds
from any incurrence of Indebtedness (other than Indebtedness permitted to be
incurred pursuant to Section 9.04 as in effect on the Effective Date) or
issuance of Preferred Stock (other than (x) Disqualified Preferred Stock to the
extent the proceeds therefrom are used to effect Permitted Acquisitions and (y)
Qualified Preferred Stock) by Holdings or any of its Subsidiaries, an amount
equal to the Applicable Prepayment Percentage of the Net Cash Proceeds of the
respective incurrence of Indebtedness or issuance of Preferred Stock shall be
applied as a mandatory repayment and/or commitment reduction in accordance with
the requirements of Sections 4.02(i) and (j). Notwithstanding the foregoing
provisions of this Section 4.02(e), so long as no Default or Event of Default
shall have occurred and be continuing, no mandatory repayment or commitment
reduction shall be required pursuant to this Section 4.02(e) until the date on
which the sum of (I) the Net Cash Proceeds required to be applied as mandatory
repayments and/or commitment reductions in the absence of this sentence plus
----
(II) the Net Cash Proceeds required to be applied as mandatory repayments and/or
commitment reductions pursuant to Section 4.02(f) in the absence of the last
sentence of said Section 4.02(f), equals or exceeds $2,000,000.
(f) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the Effective
Date on which Holdings or any of its Subsidiaries receives any cash proceeds
from any sale or issuance of Qualified Preferred Stock or common equity of (or
cash capital contributions to) Holdings or any of its Subsidiaries (other than
(u) the Equity Financing, (v) sales or issuances to, or capital contributions
from, Apollo Group, (w) issuances of Holdings Common Stock to management of
Holdings and its Subsidiaries (including as a result of the exercise of any
options with respect thereto) in an aggregate amount not to exceed $10,000,000
in any fiscal year of Holdings, (x)
-39-
equity contributions to any Subsidiary of Holdings made by Holdings or any other
Subsidiary of Holdings, (y) any issuance of Holdings Common Stock and Qualified
Preferred Stock to the extent the proceeds therefrom are used to effect
Permitted Acquisitions and (z) additional issuances of Holdings Common Stock and
Qualified Preferred Stock, to the extent that the aggregate proceeds excluded
pursuant to this clause (z) after the Effective Date do not exceed $20,000,000),
an amount equal to the Applicable Prepayment Percentage of the Net Cash Proceeds
of the respective equity issuance or capital contribution shall be applied as a
mandatory repayment and/or commitment reduction in accordance with the
requirements of Sections 4.02(i) and (j); provided that Net Cash Proceeds
--------
received by Holdings from additional sales or issuances of Holdings Common Stock
(other than from a Public Offering) shall not be required to be applied as a
mandatory repayment and/or commitment reduction on the date of receipt thereof,
to the extent that (x) no Default or Event of Default then exists and (y)
Holdings delivers a certificate to the Administrative Agent on or prior to such
date stating that such Net Cash Proceeds shall be used or contractually
committed to be used to make Capital Expenditures and/or effect Permitted
Acquisitions within 270 days following the date of receipt of such Net Cash
Proceeds (which certificate shall set forth the estimates of the proceeds to be
so expended), and provided further, that (i) if all or any portion of such Net
-------- -------
Cash Proceeds are not so used (or contractually committed to be used) within
such 270-day period, such remaining portion shall be applied on the last day of
such period (or such earlier date, if any, as Holdings or the relevant
Subsidiary determines not to reinvest the Net Cash Proceeds from such equity
issuance or capital contribution as set forth above) as a mandatory repayment
and/or commitment reduction as provided above (without giving effect to the
immediately preceding proviso) and (ii) if all or any portion of such Net Cash
Proceeds are not so used within such 270-day period referred to in clause (i)
above because such amount is contractually committed to be used and subsequent
to such date such contract is terminated or expires without such portion being
so used, such remaining portion shall be applied on the date of such termination
or expiration as a mandatory repayment and/or commitment reduction as provided
above (without giving effect to the immediately preceding proviso).
Notwithstanding the foregoing provisions of this Section 4.02(f), so long as no
Default or Event of Default shall have occurred and be continuing, no mandatory
repayment and/or commitment reduction shall be required pursuant to this Section
4.02(f) until the date on which the sum of (I) the Net Cash Proceeds required to
be applied as mandatory repayments and/or commitment reductions in the absence
of this sentence plus (II) the Net Cash Proceeds required to be applied as
----
mandatory repayments and/or commitment reductions pursuant to Section 4.02(e) in
the absence of the last sentence in said Section 4.02(e), equals or exceeds
$2,000,000.
(g) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, within 10 days following each date on
or after the Effective Date on which Holdings or any of its Subsidiaries
receives any cash proceeds from any Recovery Event, an amount equal to 100% of
the proceeds of such Recovery Event (net of reasonable costs (including, without
limitation, legal costs and expenses) and taxes incurred in connection with such
Recovery Event and the amount of such proceeds required to be used to repay any
Indebtedness (other than Indebtedness of the Lenders pursuant to this Agreement)
which is secured by the respective assets subject to such Recovery Event) shall
be applied as a mandatory repayment and/or commitment reduction in accordance
with the requirements of Sections 4.02(i) and (j),
-40-
provided that (x) so long as no Default or Event of Default then exists and such
- --------
proceeds do not exceed $5,000,000, such proceeds shall not be required to be so
applied on such date to the extent that Holdings has delivered a certificate to
the Administrative Agent on or prior to such date stating that such proceeds
shall be used or shall be committed to be used to replace or restore any
properties or assets in respect of which such proceeds were paid within 360 days
following the date of such Recovery Event (which certificate shall set forth the
estimates of the proceeds to be so expended) and (y) so long as no Default or
Event of Default then exists and to the extent that (a) the amount of such
proceeds exceeds $5,000,000, (b) the amount of such proceeds, together with
other cash available to Holdings and its Subsidiaries and permitted to be spent
by them on Capital Expenditures during the relevant period, equals at least 100%
of the cost of replacement or restoration of the properties or assets in respect
of which such proceeds were paid as determined by Holdings and as supported by
such estimates or bids from contractors or subcontractors or such other
supporting information as the Administrative Agent may reasonably accept, (c)
Holdings has delivered to the Administrative Agent a certificate on or prior to
the date the respective mandatory repayment and/or commitment reduction would
otherwise be required pursuant to this Section 4.02(g) in the form described in
clause (x) above and also certifying its determination as required by preceding
clause (b) and certifying the sufficiency of business interruption insurance as
required by succeeding clause (d), and (d) Holdings has delivered to the
Administrative Agent such evidence as the Administrative Agent may reasonably
request in form and substance reasonably satisfactory to the Administrative
Agent establishing that Holdings has sufficient business interruption insurance
and that Holdings will receive payment thereunder in such amounts and at such
times as are necessary to satisfy all obligations and expenses of Holdings and
its Subsidiaries (including, without limitation, all debt service requirements,
including pursuant to this Agreement), without any delay or extension thereof,
for the period from the date of the respective casualty, condemnation or other
event giving rise to the Recovery Event and continuing through the completion of
the replacement or restoration of the respective properties or assets, then the
entire amount of the proceeds of such Recovery Event and not just the portion in
excess of $5,000,000 shall be deposited with the Administrative Agent pursuant
to a cash collateral arrangement reasonably satisfactory to the Administrative
Agent whereby such proceeds shall be disbursed to Holdings from time to time as
needed to pay or reimburse Holdings or such Subsidiary actual costs incurred by
it in connection with the replacement or restoration of the respective
properties or assets (pursuant to such certification requirements as may be
established by the Administrative Agent), provided further, that at any time
----------------
while an Event of Default has occurred and is continuing, the Required Lenders
may direct the Administrative Agent (in which case the Administrative Agent
shall, and is hereby authorized by the Borrowers to, follow said directions) to
apply any or all proceeds then on deposit in such collateral account to the
repayment of Obligations hereunder in the same manner as proceeds would be
applied pursuant to the Security Agreement, and provided further, that if all or
----------------
any portion of such proceeds not required to be applied as a mandatory repayment
and/or commitment reduction pursuant to the second preceding proviso (whether
pursuant to clause (x) or (y) thereof) are either (A) not so used or committed
to be so used within 360 days after the date of the respective Recovery Event
(or such earlier date, if any, as Holdings or the relevant Subsidiary determines
not to reinvest the proceeds from such Recovery Event as set forth above) or (B)
if committed to be used within 360 days after the date of receipt of such net
proceeds and not so used within 18 months after the date of respective Recovery
Event then, in either such
-41-
case, such remaining portion not used or committed to be used in the case of
preceding clause (A) and not used in the case of preceding clause (B) shall be
applied on the date occurring 360 days after the date of the respective Recovery
Event in the case of clause (A) above or the date occurring 18 months after the
date of the respective Recovery Event in the case of clause (B) above as a
mandatory repayment and/or commitment reduction in accordance with the
requirements of Sections 4.02(i) and (j).
(h) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each Excess Cash Flow Payment Date,
an amount equal to the Applicable Excess Cash Flow Percentage of the Adjusted
Excess Cash Flow for the relevant Excess Cash Flow Payment Period shall be
applied as a mandatory repayment and/or commitment reduction in accordance with
the requirements of Sections 4.02(i) and (j).
(i) Each amount required to be applied pursuant to Sections 4.02(d),
(e), (f), (g) and (h) in accordance with this Section 4.02(i) shall be applied
(i) first, to repay the outstanding principal amount of Term Loans on a pro rata
--- ----
basis, with the A Euro Term Loans to be allocated the A Euro TL Percentage of
the amount of such repayment and the B Term Loans to be allocated the B TL
Percentage of the amount of such repayment, and (ii) second, to the extent in
excess of the amounts required to be applied pursuant to preceding clause (i),
to permanently reduce the Total Revolving Loan Commitment (it being understood
and agreed that (x) the amount of any reduction to the Total Revolving Loan
Commitment as provided in immediately preceding clause (ii) shall be deemed to
be an application of proceeds for purposes of this Section 4.02(i) even though
cash is not actually applied and (y) any cash received by Holdings or such
Subsidiary will be retained by such Person except to the extent that such cash
is otherwise required to be applied as provided in Section 4.02(a) as a result
of any reduction to the Total Revolving Loan Commitment). All repayments of
each Tranche of outstanding Term Loans pursuant to Section 4.02 (d), (e), (f),
(g) or (h) shall be applied to reduce the then remaining Scheduled Repayments of
such Tranche of Term Loans on a pro rata basis (based upon the then remaining
--- ----
Scheduled Repayments after giving effect to all prior reductions thereto).
(j) With respect to each repayment of Loans required by this Section
4.02, the US Borrowers or the Dutch Borrower, as the case may be, may designate
the Types of Loans of the respective Tranche which are to be repaid and, in the
case of Euro Rate Loans (other than Euro Swingline Loans), the specific
Borrowing or Borrowings of the respective Tranche pursuant to which such Euro
Rate Loans were made, provided that: (i) repayments of Euro Rate Loans (other
--------
than Euro Swingline Loans) pursuant to this Section 4.02 on a day other than the
last day of an Interest Period applicable thereto shall be accompanied by
payment by the US Borrowers or the Dutch Borrower, as the case may be, of all
breakage costs and other amounts owing to each Lender pursuant to Section 1.11;
(ii) if any repayment of Euro Rate Loans (other than Euro Swingline Loans) made
pursuant to a single Borrowing shall reduce the outstanding Euro Rate Loans made
pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount
applicable thereto, such Borrowing (x) in the case of Eurodollar Loans, shall be
converted at the end of the then current Interest Period into a Borrowing of
Base Rate Loans, (y) in the case of Euro Revolving Loans, shall be repaid in
full at the end of the then current Interest Period and (z) in the case of A
Euro Term Loans, the Dutch Borrower shall cooperate with the Administrative
Agent in selecting Interest Periods at the end of the then current Interest
Period or
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Interest Periods so as to align such Borrowing with the Interest Periods
applicable to one or more other Borrowings of such A Euro Term Loans; and (iii)
each repayment of any Tranche of Loans made pursuant to a Borrowing shall be
applied pro rata among such Tranche of Loans. In the absence of a designation by
--- ----
the US Borrowers or the Dutch Borrower, as the case may be, as described in the
preceding sentence, the Administrative Agent shall, subject to the above, make
such designation in its sole discretion with a view, but no obligation, to
minimize breakage costs owing under Section 1.11. Notwithstanding the foregoing
provisions of this Section 4.02 (other than Section 4.02(a), (b) or (c), which
Sections shall not have the benefits of this sentence), if at any time the
mandatory repayment of Loans pursuant to this Section 4.02 would result, after
giving effect to the procedures set forth in this clause (i) above, in any
Borrower incurring breakage costs under Section 1.11 as a result of Euro Rate
Loans being repaid other than on the last day of an Interest Period applicable
thereto (any such Euro Rate Loans, "Affected Loans"), the US Borrowers or the
Dutch Borrower, as the case may be, may elect, by written notice to the
Administrative Agent, to have the provisions of the following sentence be
applicable so long as no Default or Event of Default then exists. At the time
any Affected Loans are otherwise required to be prepaid, the US Borrowers or the
Dutch Borrower, as the case may be, may elect to deposit 100% (or such lesser
percentage elected by the US Borrowers or the Dutch Borrower, as the case may
be, as not being repaid) of the principal amounts that otherwise would have been
paid in respect of the Affected Loans with the Administrative Agent to be held
as security for the obligations of the US Borrowers or the Dutch Borrower, as
the case may be, hereunder pursuant to a cash collateral agreement to be entered
into in form and substance satisfactory to the Administrative Agent, with such
cash collateral to be released from such cash collateral account (and applied to
repay the principal amount of such Euro Rate Loans) upon each occurrence
thereafter of the last day of an Interest Period applicable to such Euro Rate
Loans (or such earlier date or dates as shall be requested by the US Borrowers
or the Dutch Borrower, as the case may be, with the amount to be so released and
applied on the last day of each Interest Period to be the amount of such Euro
Rate Loans to which such Interest Period applies (or, if less, the amount
remaining in such cash collateral account); provided, however, that at any time
-------- -------
while an Event of Default has occurred and is continuing, the Required Lenders
may direct the Administrative Agent (in which case the Administrative Agent
shall, and is hereby authorized by the Borrowers to, follow said directions) to
apply any or all proceeds then on deposit in such collateral account to the
payment of such Affected Loans.
(k) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, all then outstanding Loans of a given Tranche shall be repaid in
full on the respective Maturity Date for such Tranche of Loans.
(l) Notwithstanding anything to the contrary contained in this Section
4.02 or elsewhere in this Agreement (including, without limitation, in Section
15.12), at any time that A Euro Term Loans are outstanding, the US Borrowers
shall have the option, in their sole discretion, to give the Lenders with
outstanding B Term Loans (the "B Lenders") the option to waive their pro rata
--- ----
share of a mandatory repayment of B Term Loans which is to be made pursuant to
Sections 4.02(d), (e), (f), (g) and/or (h) (each such repayment, a "Waivable
Mandatory Repayment") upon the terms and provisions set forth in this Section
4.02(l); provided that if the amount of the Waivable Mandatory Repayment would
--------
exceed the aggregate principal amount of A Euro Term Loans then outstanding
(after giving effect to the application of their pro rata share
--- ----
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of the respective mandatory repayment), then the amount of the Waivable
Mandatory Repayment shall be limited to such aggregate principal amount of A
Euro Term Loans then outstanding and the remainder of the pro rata share of the
--- ----
respective mandatory repayment otherwise applicable to the B Term Loans shall be
immediately applied to the repayment of such outstanding B Term Loans. If the US
Borrowers elect to exercise the option referred to in the immediately preceding
sentence, the US Borrowers shall give to the Administrative Agent written notice
of their intention to give the B Lenders the right to waive a Waivable Mandatory
Repayment (including in such notice the aggregate amount of such proposed
repayment) at least five Business Days prior to the date of the proposed
repayment, which notice the Administrative Agent shall promptly forward to all B
Lenders (indicating in such notice the amount of such repayment to be applied to
each such B Lender's outstanding B Term Loans). The US Borrowers' offer to
permit the B Lenders to waive any such Waivable Mandatory Repayment may apply to
all or part of such repayment, provided that any offer to waive part of such
--------
repayment must be made ratably to the B Lenders on the basis of their
outstanding B Term Loans. In the event that any such B Lender desires to waive
its pro rata share of such Lender's right to receive any such Waivable Mandatory
--- ----
Repayment in whole or in part, such Lender shall so advise the Administrative
Agent no later than 4:00 P.M. (Local time) on the date which is two Business
Days after the date of such notice from the Administrative Agent, which notice
shall also include the amount such Lender desires to receive in respect of such
repayment. If any B Lender does not reply to the Administrative Agent within
such two Business Day period, such Lender will be deemed not to have waived any
part of such repayment. If any B Lender does not specify an amount it wishes to
receive, such B Lender will be deemed to have accepted 100% of its share of such
repayment. In the event that any such B Lender waives all or part of its share
of any such Waivable Mandatory Repayment, the Administrative Agent shall apply
100% of the amount so waived by such Lender to the A Euro Term Loans in
accordance with Sections 4.02(i) and (j).
(m) Notwithstanding anything to the contrary contained above, all
payments owing with respect to each Tranche of outstanding Loans pursuant to
this Section 4.02 shall be made in the respective currency or currencies in
which the respective obligations are owing in accordance with the terms of this
Agreement. For purposes of making calculations pursuant to this Section 4.02,
the Administrative Agent shall be entitled to use the Dollar Equivalent or the
Euro Equivalent, as the case may be, of any such amounts required to be
converted into other currencies for purposes of making determinations pursuant
to this Section 4.02.
4.03 Method and Place of Payment. Except as otherwise specifically
---------------------------
provided herein, all payments under this Agreement or under any Note shall be
made to the Administrative Agent for the account of the Lender or Lenders
entitled thereto not later than 12:00 Noon (Local time) on the date when due and
shall be made in immediately available funds at the applicable Payment Office in
(x) Dollars (calculated, in the case of the reimbursement of Drawings under a
Letter of Credit denominated in Euros, using the Dollar Equivalent thereof) if
such payment is made in respect of (i) principal of or interest on Dollar
Revolving Loans or Dollar Swingline Loans owing by the Dutch Borrower or any
increased costs or similar obligations owing by the Dutch Borrower in respect of
Dollar Loans or (ii) except as provided in following clause (y), any obligation
of the US Borrowers under this Agreement or under any Note issued by the US
Borrowers and (y) in Euros if such payment is made in respect of (i) principal
of or interest on Euro Loans or (ii) any increased costs, indemnities or other
amounts owing with respect to Euro
-44-
Loans; provided that, from and after any Sharing Event, all payments in respect
--------
of any outstanding Euro Loans shall be made in Dollars. Any payments under this
Agreement or under any Note which are made later than 12:00 Noon (Local time) on
any Business Day shall be deemed to have been made on the next succeeding
Business Day. Whenever any payment to be made hereunder or under any Note shall
be stated to be due on a day which is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day and, with respect to
payments of principal, interest shall be payable at the applicable rate during
such extension.
4.04 Net Payments. (a) All payments made by each Borrower hereunder
------------
or under any Note will be made without setoff, counterclaim or other defense.
Except as provided in Section 4.04(b), all such payments will be made free and
clear of, and without deduction or withholding for, any present or future taxes,
levies, imposts, duties, fees, assessments or other charges of whatever nature
now or hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein with respect to such payments (but
excluding, in the case of each Lender, except as provided in the second
succeeding sentence, any tax, including any income, branch profits, franchise or
similar tax, which in each case is imposed on or measured by the net income, net
profits or capital of such Lender pursuant to the laws of the jurisdiction in
which such Lender is organized or the jurisdiction in which the principal office
or applicable lending office of such Lender is located or any political
subdivision or taxing authority thereof or therein) and all interest, penalties
or similar liabilities with respect to such nonexcluded taxes, levies, imposts,
duties, fees, assessments or other charges (all such nonexcluded taxes, levies,
imposts, duties, fees, assessments or other charges being referred to
collectively as "Taxes"). If any Taxes are so levied or imposed, the US
Borrowers jointly and severally agree, and the Dutch Borrower agrees, as
applicable, to pay the full amount of such Taxes, and such additional amounts as
may be necessary so that every payment of all amounts due under this Agreement
or under any Note, after withholding or deduction for or on account of any
Taxes, will not be less than the amount provided for herein or in such Note. If
any amounts are payable in respect of Taxes pursuant to the preceding sentence
(any such amounts, the "Gross-Up Amount"), the US Borrowers jointly and
severally agree, and the Dutch Borrower agrees, as applicable, to reimburse each
Lender, upon the written request of such Lender, for the net amount, if any, of
any taxes such Lender shall determine are incurred by such Lender (taking into
account in calculating such net amount any allowable credit, deduction or other
benefit available as a result of, or with respect to, the payment by the
relevant Borrower to such Lender (to the extent such allowable credit, deduction
or other benefit actually reduced the tax liability of such Lender (or would
have actually reduced such tax liability if such Lender had applied for or
utilized such allowable credit, deduction or other benefit) in the taxable year
in which such additional amount is paid or in a preceding taxable year of (i)
the Gross-Up Amount or (ii) any amount paid pursuant to this sentence) that
would not have been incurred in the absence of the payment by such Borrower of
(i) the Gross-Up Amount or (ii) any amount paid pursuant to this sentence. Each
Borrower will furnish to the Administrative Agent within 45 days after the date
the payment of any Taxes is due pursuant to applicable law certified copies of
tax receipts evidencing such payment by such Borrower. The US Borrowers jointly
and severally agree, and the Dutch Borrower agrees, as applicable, to indemnify
and hold harmless each Lender, and
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reimburse such Lender upon its written request, for the amount of any Taxes so
levied or imposed and paid by such Lender in respect of any payments by or on
behalf of such Borrower.
(b) (I) Each Lender party to this Agreement that is lending to the US
Borrowers and that is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes on the
Effective Date hereby represents that, as of the Effective Date, all payments of
principal, interest and fees to be made to it by any US Borrower pursuant to
this Agreement will be totally exempt from withholding of United States federal
tax. Each Lender that is lending to the US Borrowers and that is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code) for
U.S. Federal income tax purposes agrees to deliver to the US Borrowers and the
Administrative Agent on or prior to the Effective Date, or in the case of any
such Lender that is an assignee or transferee of an interest under this
Agreement pursuant to Section 1.13 or 15.04 (unless the respective Lender was
already a Lender to the US Borrowers hereunder immediately prior to such
assignment or transfer), on the date of such assignment or transfer to such
Lender, (i) two accurate and complete original signed copies of Internal Revenue
Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under
an income tax treaty) (or successor forms) certifying to such Lender's
entitlement as of such date to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement and
under any Note, or (ii) if the Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under
an income tax treaty) pursuant to clause (i) above, (x) a certificate
substantially in the form of Exhibit D (any such certificate, a "Section
4.04(b)(ii) Certificate") and (y) two accurate and complete original signed
copies of Internal Revenue Service Form W-8BEN (with respect to the portfolio
interest exemption) (or successor form) certifying to such Lender's entitlement
to a complete exemption from United States withholding tax with respect to
payments of interest to be made under this Agreement and under any Note. In
addition, each Lender that is lending to the US Borrowers agrees that (a) from
time to time after the Effective Date, when a lapse in time or change in
circumstances renders the previous certification obsolete or inaccurate in any
material respect, and (b) upon the US Borrowers' reasonable request after the
occurrence of any other event requiring the delivery of a Form W-8ECI, Form W-
8BEN or any successor form in addition to or in replacement of the forms
previously delivered, it will deliver to the US Borrowers and the Administrative
Agent two new accurate and complete original signed copies of Internal Revenue
Service Form W-8ECI, Form W-8BEN (with respect to the benefits of any income tax
treaty), Form W-8BEN (with respect to the portfolio interest exemption) and a
Section 4.04(b)(ii) Certificate, or any successor form, as the case may be, and
such other forms as may be required in order to confirm or establish the
entitlement of such Lender to a continued exemption from or reduction in United
States withholding tax with respect to payments under this Agreement and any
Note, or it shall immediately notify the US Borrowers and the Administrative
Agent of its inability to deliver any such form or certificate in which case
such Lender shall not be required to deliver any such form or certificate
pursuant to this Section 4.04(b)(I). Notwithstanding anything to the contrary
contained in Section 4.04(a), but subject to the immediately succeeding
sentence, (x) each US Borrower shall be entitled, to the extent it is required
to do so by law, to deduct or withhold income or similar taxes imposed by the
United States (or any political subdivision or taxing authority thereof or
therein) from interest, fees or
-46-
other amounts payable hereunder for the account of any Lender that is lending to
the US Borrowers which is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes to the
extent that such Lender has not provided to the US Borrowers U.S. Internal
Revenue Service forms that establish a complete exemption from such deduction or
withholding and (y) the US Borrowers shall not be obligated pursuant to Section
4.04(a) hereof to gross-up payments to be made to such Lender, or to indemnify
and hold harmless or reimburse such Lender, in respect of income or similar
taxes imposed by the United States if (I) such Lender has not provided to the US
Borrowers the Internal Revenue Service forms required to be provided to the US
Borrowers pursuant to this Section 4.04(b)(I) or (II) in the case of a payment
by the US Borrowers, other than interest, to a Lender described in clause (ii)
above, to the extent that such forms do not establish a complete exemption from
withholding of such taxes. Notwithstanding anything to the contrary contained in
the preceding sentence or elsewhere in this Section 4.04 and except as set forth
in Section 15.04(b), the US Borrowers jointly and severally agree to pay
additional amounts and to indemnify each Lender that is lending to the US
Borrowers in the manner set forth in Section 4.04(a) (without regard to the
identity of the jurisdiction requiring the deduction or withholding) in respect
of any Taxes deducted or withheld by it as described in the immediately
preceding sentence as a result of any changes that become effective after the
Effective Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of such Taxes. No US Borrower shall be required to pay any
additional amounts or indemnification under Section 4.04(a) to any Lender to the
extent that the obligation to pay such additional amounts or indemnification to
such Lender would not have arisen but for the representation set forth in the
first sentence of this Section 4.04(b)(I) above made by such Lender not being
true.
(II) Each Lender party to this Agreement that is lending to the Dutch
Borrower and that is not a Dutch Lender hereby represents that, as of the
Effective Date, all payments of principal, interest and fees to be made to it by
the Dutch Borrower pursuant to this Agreement will be totally exempt from
withholding of Netherlands tax. Each Lender that is lending to the Dutch
Borrower that is not a Dutch Lender shall on or prior to the Effective Date, and
thereafter upon the request of the Dutch Borrower and to the extent permitted by
applicable law, deliver to the Dutch Borrower such properly completed and
executed documentation prescribed by Dutch law as will permit such payments to
be made without withholding or at a reduced rate of withholding.
Notwithstanding anything to the contrary contained in Section 4.04(a), but
subject to the immediately succeeding sentence, (x) the Dutch Borrower shall be
entitled, to the extent it is required to do so by law, to deduct or withhold
income or similar taxes imposed under the laws of The Netherlands (or any
political subdivision or taxing authority thereof or therein) from interest,
fees or other amounts payable hereunder for the account of any Lender that is
lending to the Dutch Borrower which is not a Dutch Lender to the extent that
such Lender has not provided to the Dutch Borrower forms that establish a
complete exemption from such deduction or withholding and (y) the Dutch Borrower
shall not be obligated pursuant to Section 4.04(a) hereof to gross-up payments
to be made to such Lender, or to indemnify and hold harmless or reimburse such
Lender, in respect of income or similar taxes imposed under the laws of The
Netherlands if such Lender has not provided to the Dutch Borrower the forms
required to be provided to the Dutch Borrower pursuant to this Section
4.04(b)(II). Notwithstanding anything to the contrary
-47-
contained in the preceding sentence or elsewhere in this Section 4.04 and except
as set forth in Section 15.04(b), the Dutch Borrower agrees to pay additional
amounts and to indemnify each Lender to the Dutch Borrower in the manner set
forth in Section 4.04(a) (without regard to the identity of the jurisdiction
requiring the deduction or withholding) in respect of any Taxes deducted or
withheld by it as described in the immediately preceding sentence as a result of
any changes that become effective after the Effective Date in any applicable
law, treaty, governmental rule, regulation, guideline or order, or in the
interpretation thereof, relating to the deducting or withholding of such Taxes.
The Dutch Borrower shall not be required to pay any additional amounts or
indemnification under Section 4.04(a) to any Lender to the Dutch Borrower to the
extent that the obligation to pay such additional amounts or indemnification to
such Lender would not have arisen but for the representation set forth in the
first sentence of this Section 4.04(b)(II) made by such Lender not being true.
(c) If any Borrower pays any additional amount under this Section 4.04
with respect to taxes imposed on any payments made to or on behalf of a Lender
and such Lender determines in its sole discretion that it has actually received
or realized in connection therewith any refund of tax, or any reduction of, or
credit against, its tax liabilities (a "Tax Benefit"), such Lender shall pay to
such Borrower an amount that such Lender shall, in its sole discretion,
determine is equal to the net benefit, after tax, which was obtained by the
Lender as a consequence of such refund, reduction or credit; provided, however,
-------- -------
that (i) any Lender may determine, in its sole discretion consistent with the
policies of such Lender, whether to seek a Tax Benefit and (ii) nothing in this
Section 4.04(c) shall require the Lender to disclose any confidential
information to any Borrower (including, without limitation, its tax returns).
(d) Each Lender shall use reasonable efforts (consistent with legal
and regulatory restrictions and subject to overall policy considerations of such
Lender) (i) to file any certificate or document or to furnish any information as
reasonably requested by any Borrower pursuant to any applicable treaty, law or
regulation or (ii) to designate a different applicable lending office of such
Lender, if the making of such filing or the furnishing of such information or
the designation of such other lending office would avoid the need for or reduce
the amount of any additional amounts payable by any Borrower and would not, in
the sole discretion of such Lender, be disadvantageous to such Lender.
(e) The provisions of this Section 4.04 are subject to the provisions
of Section 15.18 (to the extent applicable).
SECTION 5. Conditions Precedent to Credit Events on the Initial
----------------------------------------------------
Borrowing Date. The obligation of each Lender to make each Loan hereunder, and
- --------------
the obligation of each Letter of Credit Issuer to issue each Letter of Credit
hereunder, in each case on the Initial Borrowing Date, is subject at the time of
the making of such Loan or the issuance of such Letter of Credit, as the case
may be, to the satisfaction of the following conditions:
5.01 Execution of Agreement; Notes. On or prior to the Initial
-----------------------------
Borrowing Date, (i) the Effective Date shall have occurred and (ii) there shall
have been delivered to the Administrative Agent for the account of each Lender
requesting same the appropriate A Euro Term Note, B Term Note and/or Revolving
Notes and to the Swingline Lender, if so requested,
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the Swingline Notes, in each case executed by the US Borrowers or the Dutch
Borrower, as the case may be, and in the amount, maturity and as otherwise
provided herein.
5.02 Officer's Certificate. On the Initial Borrowing Date, the
---------------------
Administrative Agent shall have received a certificate from Holdings and each
Borrower dated such date signed by an appropriate officer of such Credit Party
stating that all of the applicable conditions set forth in Sections 5.05 through
5.08, inclusive, and 6.01 (other than such conditions to the extent that same
are subject to the satisfaction of the Agents and/or the Required Lenders), have
been satisfied on such date.
5.03 Opinions of Counsel. On the Initial Borrowing Date, the
-------------------
Administrative Agent shall have received opinions, addressed to each Agent, the
Collateral Agent and each of the Lenders and dated the Initial Borrowing Date,
from (i) O'Sullivan Graev & Karabell, LLP, special counsel to the Credit
Parties, which opinion shall cover the matters contained in Exhibit E-1 and such
other matters incident to the transactions contemplated herein as the Agents may
reasonably request (including reliance on opinions rendered by such special
counsel to Shell pursuant to the Master Sale Agreements), (ii) Clifford Chance
LLP, special Netherlands counsel to the Credit Parties, which opinion shall
cover the matters contained in Exhibit E-2 and such other matters incident to
the transactions contemplated herein as the Agents may reasonably request, (iii)
local counsel to the Credit Parties and/or the Agents in each of Illinois,
Florida, Louisiana and Texas, in each case reasonably satisfactory to the
Agents, which opinions (x) shall be addressed to each Agent, the Collateral
Agent and each of the Lenders and be dated the Initial Borrowing Date, (y) shall
cover the perfection of the security interests granted pursuant to the Security
Documents and such other matters incident to the transactions contemplated
herein as the Agents may reasonably request and (z) shall be in form and
substance reasonably satisfactory to the Agents, and (iv) from foreign counsel
to the Credit Parties and/or the Agents in each of The Netherlands, England,
Germany, Spain and Belgium, in each case satisfactory to the Agents, which
opinions (x) shall be addressed to each Agent, the Collateral Agent and each of
the Lenders and be dated the Initial Borrowing Date, (y) shall cover such
matters incident to the transactions contemplated herein as the Agents may
reasonably request and (z) shall be in form and substance reasonably
satisfactory to the Agents.
5.04 Company Documents; Proceedings. (a) On the Initial Borrowing
------------------------------
Date, the Administrative Agent shall have received from each Credit Party a
certificate, dated the Initial Borrowing Date, signed by the chairman of the
board, the chief executive officer, the president or any vice president of such
Credit Party (or, in the case of any Foreign Credit Party, an authorized
signatory thereof as permitted under applicable law and the relevant charter
documents of such Foreign Credit Party), and attested to by the secretary or any
assistant secretary of such Credit Party (or, in the case of any Foreign Credit
Party, another authorized signatory thereof as permitted under applicable law
and the relevant charter documents of such Foreign Credit Party), in the form of
Exhibit F with appropriate insertions, together with copies of the certificate
or articles of incorporation, certificate of formation, operating agreements and
by-laws (or equivalent organizational documents) of such Credit Party and the
resolutions of such Credit Party referred to in such certificate and each of the
foregoing shall be in form and substance reasonably satisfactory to the
Administrative Agent.
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(b) On the Initial Borrowing Date, all Company and legal proceedings
and all instruments and agreements in connection with the transactions
contemplated by this Agreement and the other Documents shall be reasonably
satisfactory in form and substance to the Administrative Agent, and the
Administrative Agent shall have received all information and copies of all
certificates, documents and papers, including good standing certificates, bring-
down certificates and any other records of Company proceedings and governmental
approvals, if any, which the Administrative Agent reasonably may have requested
in connection therewith, such documents and papers, where appropriate, to be
certified by proper Company or governmental authorities.
5.05 Adverse Change, etc. On the Initial Borrowing Date, nothing
--------------------
shall have occurred which (i) the Required Lenders or the Agents shall
reasonably determine has had, or is reasonably likely to have, a material
adverse effect on the rights or remedies of the Lenders or the Agents, or on the
ability of any Credit Party to perform its obligations to them hereunder or
under any other Credit Document or (ii) has had, or is reasonably likely to
have, a material adverse effect on the Transaction or a Material Adverse Effect.
5.06 Litigation. On the Initial Borrowing Date, there shall be no
----------
actions, suits, proceedings or investigations pending or threatened (a) with
respect to this Agreement or any other Document or the Transaction, (b) with
respect to any Existing Indebtedness, (c) which is reasonably likely to have a
Material Adverse Effect or (d) which the Agents or the Required Lenders shall
determine is reasonably likely to have (i) a Material Adverse Effect or (ii) a
material adverse effect on the Transaction, the rights or remedies of the
Lenders or the Agents hereunder or under any other Credit Document or on the
ability of any Credit Party to perform its respective obligations to the Lenders
or the Agents hereunder or under any other Credit Document.
5.07 Approvals. On the Initial Borrowing Date, (i) all necessary and
---------
material governmental (domestic and foreign), regulatory and third party
approvals in connection with any Existing Indebtedness, the Transaction, the
transactions contemplated by the Documents and otherwise referred to herein or
therein shall have been obtained and remain in full force and effect and
evidence thereof shall have been provided to the Administrative Agent, and (ii)
all applicable waiting periods shall have expired without any action being taken
by any competent authority which restrains, prevents or imposes materially
adverse conditions upon the consummation of the Transaction, the making of the
Loans and the transactions contemplated by the Documents or otherwise referred
to herein or therein. On the Initial Borrowing Date, there shall not exist any
judgment, order, injunction or other restraint issued or filed or a hearing
seeking injunctive relief or other restraint pending or notified prohibiting or
imposing materially adverse conditions upon, or materially delaying, or making
economically unfeasible, the consummation of the Transaction or the making of
the Loans.
5.08 Consummation of the Recapitalization; Equity Financing, etc.
------------------------------------------------------------
(a) On the Initial Borrowing Date, Shell, certain of its Subsidiaries,
Acquisition Corp., Holdings and the Borrowers shall have effected the
Recapitalization pursuant to which (A)(i) RPP USA shall have acquired all of the
outstanding share capital of the Dutch Parent (pursuant to an assignment of
Holdings' rights under the Master Sale Agreements) and (ii) Acquisition Corp.
shall have acquired all of the outstanding capital stock of Holdings (other than
such capital stock attribut-
-50-
able to the Shell Equity Rollover, the Management Shares and the Redemption), in
each case pursuant to, and in accordance with the terms of, the Master Sale
Agreements (such acquisitions referred to in preceding clauses (i) and (ii)
collectively, the "Acquisition"), (B) Holdings shall have redeemed the seller
note issued in connection with its acquisition of the outstanding share capital
of the Dutch Parent by issuing the Holdings Contingent Seller Subordinated Note
to Shell and paying, subject to reductions specified in the Master Sale
Agreements, $535,000,000 to Shell, (C) the Dutch Borrower shall have repaid
$145,000,000 of existing Indebtedness under an intercompany note issued by the
Dutch Borrower and held by Shell Petroleum N.V. (the "Existing Shell
Intercompany Note"), which Existing Shell Intercompany Note was originally
issued in consideration for the redemption by the Dutch Borrower of a portion of
its share premium and as an interim dividend, (D) Holdings shall have redeemed
in full 841.997 shares of Holdings Common Stock owned by Shell (the
"Redemption") and (E) Shell shall hold Initial Holdings PIK Junior Subordinated
Notes in an aggregate principal amount of $10,500,000. Immediately after giving
effect to the Recapitalization, (w) Apollo Group, indirectly through Acquisition
Corp., shall own on a fully diluted basis approximately 81.9% of the issued and
outstanding shares of Holdings Common Stock, (x) Shell shall retain on a fully
diluted basis approximately 6.8% of the issued and outstanding shares of
Holdings Common Stock (the "Shell Equity Rollover"), (y) management of RPP USA
will directly (or indirectly through Acquisition Corp.) own on a fully diluted
basis taking into account all management options and stock issuable under
Holdings' stock option plan and restricted stock unit plan approximately 11.3%
of the issued and outstanding shares of Holdings Common Stock (the "Management
Shares"), and (z) cash in an aggregate amount not to exceed $849,750,223 shall
have been paid to Shell.
(b) On the Initial Borrowing Date, Holdings shall have received cash
proceeds of (i) $55,500,000 (of which $570,000 may be in the form of personal
checks) from the issuance of Holdings Common Stock to Acquisition Corp.,
Existing Management and other investors reasonably acceptable to the Agents (the
"Equity Financing") and (ii) $130,900,000 (of which $1,330,000 may be in the
form of personal checks) from the issuance by Holdings to Acquisition Corp. (or
an affiliate thereof), Existing Management and other investors reasonably
acceptable to the Agents of Initial Holdings PIK Junior Subordinated Notes.
Holdings shall have used the entire amount of the proceeds from the financings
described in the immediately preceding sentence to make payments owing in
connection with the Transaction prior to any Borrower utilizing any proceeds of
any Loans for such purpose.
(c) On the Initial Borrowing Date, the US Borrowers shall have
received gross cash proceeds in an aggregate amount of at least $197,000,000
from the issuance of the Senior Subordinated Notes with a face amount of
$200,000,000 and shall have utilized the entire amount of such gross cash
proceeds to make payments owing in connection with the Transaction prior to any
Borrower utilizing any proceeds of any Loans for such purpose.
(d) On the Initial Borrowing Date, (i) the Administrative Agent shall
have received true and correct copies of all Recapitalization Documents, all
Equity Financing Documents, all Senior Subordinated Note Documents, the Holdings
Contingent Seller Subordinated Note, all Initial Holdings PIK Junior
Subordinated Notes and all Acquisition Corp. PIK Junior Subordinated Notes,
certified as such by an appropriate officer of Holdings, (ii) (x) all
Recapitalization Documents which were executed on July 10, 2000 shall be in the
form so
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executed, and all exhibits (including, without limitation, the form of Holdings
Contingent Seller Subordinated Note) thereto shall be executed in the form
attached to the respective Recapitalization Document on July 10, 2000, with, in
each case, any changes thereto or waivers to the terms thereof to be reasonably
satisfactory to the Agents and (y) all other Documents, and all of the terms and
conditions thereof, shall be in form and substance reasonably satisfactory to
the Agents and the Required Lenders and (iii) all of the Documents shall be in
full force and effect. All material conditions precedent to the consummation of
the Transaction as set forth in the respective Documents shall have been
satisfied, and not waived unless consented to by the Agents (which consent shall
not be unreasonably withheld), to the reasonable satisfaction of the Agents.
Each component of the Transaction shall have been consummated in accordance with
the terms and conditions of the applicable Documents and all applicable laws.
5.09 Pledge Agreements. On the Initial Borrowing Date, (i) each US
-----------------
Credit Party shall have duly authorized, executed and delivered the US Pledge
Agreement in the form of Exhibit G, with such changes thereto, or additional
pledge agreements (or amendments thereto) entered into in connection therewith,
as foreign counsel for the Administrative Agent may suggest in respect of any
Pledge Agreement Collateral of any Foreign Subsidiary to be pledged by any US
Credit Party (as amended, restated, modified and/or supplemented from time to
time in accordance with the terms thereof and hereof, collectively, the "US
Pledge Agreements" and each, a "US Pledge Agreement"), (ii) each Foreign Credit
Party (other than such Foreign Credit Parties that do not own any equity of any
other Person) shall have duly authorized, executed and delivered one or more
other pledge agreements in form and substance satisfactory to the Administrative
Agent and as foreign counsel for the Administrative Agent may suggest in
connection with the Pledge Agreement Collateral to be pledged by any such
Foreign Credit Party (such pledge agreements referred to in this clause (ii), as
the same may be amended, restated, modified and/or supplemented from time to
time in accordance with the terms thereof and hereof, the "Foreign Pledge
Agreements" and each, a "Foreign Pledge Agreement"; and the Foreign Pledge
Agreements, together with the US Pledge Agreements (as well as any pledge
agreements delivered pursuant to Section 8.11(a)), are collectively, the "Pledge
Agreements"), (iii) each Credit Party party to a Pledge Agreement shall have
delivered to the Collateral Agent, as Pledgee thereunder, all of the
certificated Pledge Agreement Collateral, if any, referred to therein and then
owned by each such Credit Party, (A) endorsed in blank in the case of promissory
notes constituting such Pledge Agreement Collateral and (B) together with (x)
executed and undated stock powers in the case of capital stock constituting such
Pledge Agreement Collateral and (y) proper Financing Statements (Form UCC-1 or
the equivalent) fully executed for filing under the UCC or other appropriate
filing offices of each jurisdiction as may be necessary or, in the reasonable
opinion of the Collateral Agent, desirable to perfect the security interests
purported to be created by the Pledge Agreements, and (iv) each Credit Party
shall have taken all such further actions as may be necessary or, in the
reasonable opinion of the Collateral Agent, desirable, to perfect the security
interest purported to be created by the Pledge Agreements, and each Pledge
Agreement shall be in full force and effect.
5.10 Security Agreements. On the Initial Borrowing Date, (i) each US
-------------------
Credit Party shall have duly authorized, executed and delivered the US Security
Agreement in the form of Exhibit H (as amended, restated, modified and/or
supplemented from time to time in accordance with the terms thereof and hereof,
the "US Security Agreement") and (ii) each Foreign
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Credit Party shall have duly authorized, executed and delivered one or more
other security agreements in form and substance satisfactory to the Collateral
Agent in connection with the Security Agreement Collateral of each such Foreign
Credit Party (such security agreements referred to in this clause (ii), the
"Foreign Security Agreements" and each, a "Foreign Security Agreement"; and the
Foreign Security Agreements, together with the US Security Agreement (as well as
any security agreements delivered pursuant to Section 8.11(a)), are
collectively, the "Security Agreements"), in each case covering all of each such
Credit Party's present and future Security Agreement Collateral, together with:
(i) executed copies of financing statements (Form UCC-1) or
appropriate local or foreign equivalents in appropriate form for filing
under the UCC or appropriate local or foreign equivalents of each
jurisdiction as may be necessary or, in the reasonable opinion of the
Collateral Agent, desirable to perfect the security interests purported to
be created by the Security Agreements;
(ii) certified copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, listing all effective financing statements
that name any Credit Party as debtor and that are filed in the
jurisdictions referred to in clause (i) above, together with copies of such
other financing statements that name any Credit Party as debtor (none of
which shall cover the Collateral except to the extent evidencing Permitted
Liens or in respect of which the Collateral Agent shall have received
termination statements (Form UCC-3 or the equivalent) as shall be required
by local or foreign law fully executed for filing);
(iii) evidence of the completion (or arrangements therefor
reasonably satisfactory to the Collateral Agent) of all other recordings
and filings of, or with respect to, the Security Agreements as may be
necessary to perfect the security interests intended to be created by the
Security Agreements, provided that no such recordings or filings shall be
made to perfect any Rolling Stock or Tractor Trailer which is not Material
Rolling Stock or a Material Tractor Trailer, as the case may be; and
(iv) evidence that all other actions necessary to perfect and
protect the security interests purported to be created by the Security
Agreements have been taken, provided that no such action shall be taken to
perfect any Rolling Stock or Tractor Trailer which is not Material Rolling
Stock or a Material Tractor Trailer, as the case may be;
and each Security Agreement shall be in full force and effect.
5.11 US Subsidiaries Guaranty and Foreign Subsidiaries Guaranty. (a)
----------------------------------------------------------
On the Initial Borrowing Date, each Subsidiary Guarantor that is a US Credit
Party (if any) shall have duly authorized, executed and delivered the US
Subsidiaries Guaranty in the form of Exhibit I-1 (as amended, restated, modified
and/or supplemented from time to time in accordance with the terms thereof and
hereof, the "US Subsidiaries Guaranty"), and the US Subsidiaries Guaranty shall
be in full force and effect.
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(b) On the Initial Borrowing Date, each Subsidiary Guarantor shall
have duly authorized, executed and delivered the Foreign Subsidiaries Guaranty
in the form of Exhibit I-2, with such changes thereto as foreign counsel for the
Agents may suggest with respect to any Foreign Credit Party (as amended,
restated, modified and/or supplemented from time to time in accordance with the
terms thereof and hereof, the "Foreign Subsidiaries Guaranty"), and the Foreign
Subsidiaries Guaranty shall be in full force and effect.
5.12 Mortgages; Surveys; etc. (a) On the Initial Borrowing Date,
------------------------
the Collateral Agent shall have received:
(i) fully executed counterparts of Mortgages, each in form and
substance reasonably satisfactory to the Agents, which Mortgages shall
cover such of the Real Property located in the United States or any State
thereof that are owned or leased by any US Credit Party and that are
designated as a "US Mortgaged Property" on Part A of Schedule IV, together
with evidence that counterparts of such Mortgages have been delivered to
the title insurance company retained by RPP USA in connection with the
execution and delivery of such Mortgages for recording in all places to the
extent necessary or, in the reasonable opinion of the Collateral Agent,
desirable to effectively create a valid and enforceable first priority
mortgage lien, subject only to Permitted Encumbrances, on each such US
Mortgaged Property in favor of the Collateral Agent (or such other trustee
as may be required or desired under local law) for the benefit of the
Secured Creditors; and
(ii) surveys, in form and substance reasonably satisfactory to the
Collateral Agent, of the US Mortgaged Properties, certified by a licensed
professional surveyor reasonably satisfactory to the Collateral Agent and
dated a recent date reasonably acceptable to the Collateral Agent.
(b) On the Initial Borrowing Date, RPP USA shall have delivered to
each lessor of a US Mortgaged Property a copy of the Mortgage encumbering such
US Mortgaged Property, together with written notice specifying the Collateral
Agent as mortgagee thereunder and setting forth the Collateral Agent's name and
address.
(c) On the Initial Borrowing Date, RPP USA shall have delivered to
the Collateral Agent a landlord-lender agreement executed and delivered by RPP
USA and the lessor of the US Mortgaged Property located in the Parish of St.
Charles in Louisiana, which landlord-lender agreement shall be in form and
substance reasonably satisfactory to the Collateral Agent.
(d) On the Initial Borrowing Date, with respect to each Real
Property located in The Netherlands that is leased by the Dutch Borrower or any
of its Subsidiaries and that is designated on Part B of Schedule IV as a
"Foreign Lease Subject to an Assignment For Security Purposes," the respective
Foreign Credit Party leasing same shall have executed and delivered such
security documentation as foreign counsel to the Agents may suggest to create an
assignment for security purposes on such Foreign Credit Party's Leasehold
interest in the respective Foreign Mortgaged Property. All actions required
pursuant to this Section 5.12(d) shall be taken to the reasonable satisfaction
of the Agents.
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(e) On the Initial Borrowing Date, the Dutch Borrower shall have
delivered to the lessor to the Dutch Borrower of the Foreign Mortgaged Property
located in The Netherlands a copy of the assignment for security purposes
described in preceding clause (d).
5.13 Shareholders' Agreements; Management Agreements; Existing
---------------------------------------------------------
Indebtedness Agreements; Tax Allocation Agreements. On or prior to the Initial
- --------------------------------------------------
Borrowing Date, there shall have been delivered to the Administrative Agent true
and correct copies, certified as true and complete by an appropriate officer of
Holdings, of the following documents, in each case as same will be in effect on
the Initial Borrowing Date after the consummation of the Transaction:
(i) all agreements (including, without limitation, shareholders'
agreements, subscription agreements and registration rights agreements)
entered into by Holdings or any of its Subsidiaries governing the terms and
relative rights of its capital stock and any agreements entered into by
shareholders relating to any such entity with respect to its capital stock
(collectively, the "Shareholders' Agreements");
(ii) all material agreements with members of, or with respect to, the
management of Holdings or any of its Subsidiaries after giving effect to
the Transaction (collectively, the "Management Agreements");
(iii) all agreements evidencing or relating to Existing Indebtedness
of Holdings or any of its Subsidiaries (collectively, the "Existing
Indebtedness Agreements"); and
(iv) any tax sharing or tax allocation agreements entered into by
Holdings or any of its Subsidiaries (collectively, the "Tax Allocation
Agreements");
all of which Shareholders' Agreements, Management Agreements, Existing
Indebtedness Agreements and Tax Allocation Agreements shall be in form and
substance reasonably satisfactory to the Agents and shall be in full force and
effect on the Initial Borrowing Date.
5.14 Consent Letter. On the Initial Borrowing Date, the
--------------
Administrative Agent shall have received a letter from National Registered
Agents, Inc., presently located at 440 Ninth Avenue, Fifth Floor, New York, New
York 10001, substantially in the form of Exhibit J, indicating its consent to
its appointment by each Credit Party as its agent to receive service of process
as specified in Section 15.08 of this Agreement, Section 20(b) of the US
Subsidiaries Guaranty and Section 20(b) of the Foreign Subsidiaries Guaranty.
5.15 Solvency Certificate; Insurance Certificates. On or before the
--------------------------------------------
Initial Borrowing Date, the Administrative Agent shall have received:
(a) a solvency certificate in the form of Exhibit K from the chief
financial officer of RPP USA, dated the Initial Borrowing Date, and
supporting the conclusion that, after giving effect to the Transaction and
the incurrence of all financings contemplated herein, the US Borrowers (on
a combined basis), the Dutch Borrower (on a stand-alone basis) and RPP USA
and its Subsidiaries (on a consolidated basis), in each case, are not
insolvent and will not be rendered insolvent by the indebtedness incurred
in connection herewith, will not be left with unreasonably small capital
with which to engage in its or
-55-
their respective businesses and will not have incurred debts beyond its or
their ability to pay such debts as they mature and become due; and
(b) evidence of insurance complying with the requirements of Section
8.03 for the business and properties of RPP USA and its Subsidiaries, in
scope, form and substance reasonably satisfactory to the Agents, and naming
the Collateral Agent as an additional insured and/or loss payee, and
stating that such insurance shall not be canceled or revised without at
least 30 days' prior written notice by the insurer to the Collateral Agent.
5.16 Historical Financial Statements, Pro Forma Financial Statements;
----------------------------------------------------------------
Projections. (a) On or prior to the Initial Borrowing Date, there shall have
- -----------
been delivered to the Administrative Agent (i) true and correct copies of the
historical financial statements referred to in Section 7.10(b) and (ii) an
unaudited pro forma consolidated balance sheet of RPP USA and its Subsidiaries
--- -----
as of June 30, 2000 and the related pro forma statement of income for the
--- -----
twelve-month period ended as of such date and, after giving effect to the
Transaction and the incurrence of all Indebtedness contemplated herein and
prepared in accordance with GAAP (the "Pro Forma Financial Statements"),
--- -----
together with a related funds flow statement, which historical financial
statements, Pro Forma Financial Statements and funds flow statement shall be
--- -----
reasonably satisfactory to the Agents.
(b) On or prior to the Initial Borrowing Date, there shall have been
delivered to the Administrative Agent the Projections containing the projected
consolidated financial statements of RPP USA and its Subsidiaries certified by
the chief financial officer of RPP USA for the five fiscal years ended after the
Initial Borrowing Date, which Projections (x) shall reflect the forecasted
consolidated financial conditions and income and expenses of RPP USA and its
Subsidiaries after giving effect to the Transaction and the related financing
thereof and the other transactions contemplated hereby and (y) shall be
reasonably satisfactory in form and substance to the Agents.
5.17 Payment of Fees. On the Initial Borrowing Date, all costs, fees
---------------
and expenses, and all other compensation due to the Agents or the Lenders
(including, without limitation, legal fees and expenses), shall have been paid
to the extent due.
SECTION 6. Conditions Precedent to All Credit Events. The obligation
-----------------------------------------
of each Lender to make Loans (including Loans made on the Initial Borrowing Date
but excluding Mandatory Borrowings made thereafter, which shall be made as
provided in Section 1.01(e)), and the obligation of each Letter of Credit Issuer
to issue any Letter of Credit, is subject, at the time of each such Credit Event
(except as hereinafter indicated), to the satisfaction of the following
conditions:
6.01 No Default; Representations and Warranties. At the time of each
------------------------------------------
such Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein and in each other Credit Document shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of such Credit Event (it being
-56-
understood and agreed that any representation or warranty which by its terms is
made as of a specified date shall be required to be true and correct in all
material respects only as of such specified date).
6.02 Notice of Borrowing; Letter of Credit Request. (a) Prior to the
---------------------------------------------
making of each Loan (excluding Swingline Loans and Mandatory Borrowings), the
Administrative Agent shall have received a Notice of Borrowing meeting the
requirements of Section 1.03(a). Prior to the making of each Swingline Loan, the
Swingline Lender shall have received the notice required by Section 1.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the respective Letter of Credit Issuer shall have
received a Letter of Credit Request meeting the requirements of Section 2.02(a).
The occurrence of the Initial Borrowing Date and the acceptance of the
benefits or proceeds of each Credit Event shall constitute a representation and
warranty by each of Holdings and each Borrower to each Agent and each of the
Lenders that all the conditions specified in Section 5 (with respect to the
Initial Borrowing Date and the Credit Events to occur on the Initial Borrowing
Date) and in this Section 6 (with respect to the Initial Borrowing Date and the
Credit Events to occur on or after the Initial Borrowing Date) and applicable to
such Credit Event (other than such conditions that are subject to the
satisfaction of the Agents and/or the Required Lenders) exist as of that time.
All of the Notes, certificates, legal opinions and other documents and papers
referred to in Section 5 and in this Section 6, unless otherwise specified,
shall be delivered to the Administrative Agent at the applicable Notice Office
for the account of each of the Lenders and, except for the Notes, in sufficient
counterparts or copies for each of the Lenders and shall be in form and
substance satisfactory to the Lenders.
SECTION 7. Representations and Warranties. In order to induce the
------------------------------
Lenders to enter into this Agreement and to make the Loans and issue and/or
participate in the Letters of Credit provided for herein, each of Holdings and
each Borrower makes the following representations and warranties to the Lenders,
in each case after giving effect to the Transaction, all of which shall survive
the execution and delivery of this Agreement, the making of the Loans and the
issuance of the Letters of Credit (with the occurrence of the Initial Borrowing
Date and each Credit Event on and after the Initial Borrowing Date being deemed
to constitute a representation and warranty that the matters specified in this
Section 7 are true and correct in all material respects on and as of the Initial
Borrowing Date and the date of each such Credit Event, unless stated to relate
to a specific earlier date in which case such representations and warranties
shall be true and correct in all material respects as of such earlier date):
7.01 Company Status. Each of Holdings and each of its Subsidiaries
--------------
(i) is a duly organized and validly existing Company in good standing under the
laws of the jurisdiction of its organization (provided that the representation
and warranty in this clause (i) as it relates to Foreign Subsidiaries of
Holdings shall only be made to the extent that such concept is legally
applicable under the laws of the respective jurisdictions in which such Foreign
Subsidiaries are organized), (ii) has the Company power and authority to own its
property and assets and to transact the business in which it is engaged and
presently proposes to engage and (iii) is duly qualified
-57-
and is authorized to do business and is in good standing in all jurisdictions
where it is required to be so qualified and where the failure to be so qualified
would have a Material Adverse Effect.
7.02 Company Power and Authority. Each Credit Party has the Company
---------------------------
power and authority to execute, deliver and carry out the terms and provisions
of the Documents to which it is a party and has taken all necessary Company
action to authorize the execution, delivery and performance of the Documents to
which it is a party. Each Credit Party has duly executed and delivered each
Document to which it is a party and each such Document constitutes the legal,
valid and binding obligation of such Credit Party enforceable in accordance with
its terms, except to the extent that the enforceability thereof may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
generally affecting creditors' rights and by equitable principles (regardless of
whether enforcement is sought in equity or at law).
7.03 No Violation. Neither the execution, delivery or performance by
------------
any Credit Party of the Documents to which it is a party, nor compliance by any
Credit Party with the terms and provisions thereof, nor the consummation of the
transactions contemplated herein or therein, (i) will contravene any material
provision of any applicable law, statute, rule or regulation, or any order,
writ, injunction or decree of any court or governmental instrumentality, (ii)
will conflict or be inconsistent with, or result in any breach of, any of the
terms, covenants, conditions or provisions of, or constitute a default under, or
(other than pursuant to the Security Documents) result in the creation or
imposition of (or the obligation to create or impose) any Lien upon any of the
property or assets of such Credit Party or any of its Subsidiaries pursuant to
the terms of any indenture, mortgage, deed of trust, loan agreement, credit
agreement or any other material agreement or instrument to which such Credit
Party or any of its Subsidiaries is a party or by which it or any of its
property or assets are bound or to which such Credit Party and any of its
Subsidiaries may be subject or (iii) will violate any provision of the
certificate or articles of incorporation, by-laws, certificate of partnership,
partnership agreement, certificate of limited liability company, limited
liability company agreement or equivalent organizational document, as the case
may be, of such Credit Party or any of its Subsidiaries.
7.04 Litigation. There are no actions, suits, proceedings or
----------
investigations pending or, to the best knowledge of each of Holdings and each
Borrower, threatened (i) with respect to any Credit Document, (ii) with respect
to the Transaction or any other Document, or (iii) with respect to Holdings or
any of its Subsidiaries (x) that could reasonably be expected to have a Material
Adverse Effect or (y) that could reasonably be expected to have a material
adverse effect on the rights or remedies of the Agents or the Lenders or on the
ability of any Credit Party to perform its respective obligations to the Agents
or the Lenders hereunder and under the other Credit Documents to which it is, or
will be, a party. Additionally, there does not exist any judgment, order or
injunction prohibiting or imposing material adverse conditions upon the
occurrence of any Credit Event.
7.05 Use of Proceeds; Margin Regulations. (a) The proceeds of the B
-----------------------------------
Term Loans shall be utilized by the US Borrowers on the Initial Borrowing Date
solely to (x) finance the Transaction and (y) pay fees and expenses incurred in
connection therewith.
-58-
(b) The proceeds of the A Euro Term Loans shall be utilized by the
Dutch Borrower on the Initial Borrowing Date solely to repay the Existing Shell
Intercompany Note.
(c) The proceeds of all Revolving Loans and Swingline Loans shall be
utilized by each Borrower for the general corporate and working capital purposes
of RPP USA and its Subsidiaries (including, but not limited to, Permitted
Acquisitions), provided that up to, but no more than, (i) $13,000,000 of
Revolving Loans and Swingline Loans may be utilized by the US Borrowers on the
Initial Borrowing Date to finance the Transaction and to pay fees and expenses
incurred in connection therewith and (ii) approximately [_]52,365,159 of Euro
Revolving Loans and Euro Swingline Loans in the aggregate may be utilized by the
Dutch Borrower on the Initial Borrowing Date to repay the Existing Shell
Intercompany Note.
(d) Neither the making of any Loan, nor the use of the proceeds
thereof, nor the occurrence of any other Credit Event, will violate or be
inconsistent with the provisions of Regulation T, U or X of the Board of
Governors of the Federal Reserve System and no part of any Credit Event (or the
proceeds thereof) will be used to purchase or carry any Margin Stock or to
extend credit for the purpose of purchasing or carrying any Margin Stock. No
part of the proceeds of any Loan incurred by the Dutch Borrower shall be used to
repay any intercompany debt existing on the Initial Borrowing Date the proceeds
of which were initially used to purchase shares in the capital (but not share
premium) of any existing Foreign Subsidiary of RPP USA.
7.06 Governmental Approvals. (a) Except as may have been obtained
----------------------
or made on or prior to the Initial Borrowing Date (and which remain in full
force and effect on the Initial Borrowing Date), no order, consent, approval,
license, authorization or validation of, or filing, recording or registration
with, or exemption by, any foreign or domestic governmental or public body or
authority, or any subdivision thereof, is required to authorize or is required
in connection with (i) the execution, delivery and performance of any Document
or (ii) the legality, validity, binding effect or enforceability of any
Document.
(b) At the time of each incurrence of Loans by the Dutch Borrower, the
Dutch Borrower has obtained all such approvals and/or favorable advice from such
Person or Persons as may be required or appropriate pursuant to applicable law,
and, to the extent requested by the Administrative Agent, evidence of same has
been delivered to the Administrative Agent.
7.07 Investment Company Act. Neither Holdings nor any of its
----------------------
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
7.08 Public Utility Holding Company Act. Neither Holdings nor any of
----------------------------------
its Subsidiaries is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
7.09 True and Complete Disclosure. All factual information (taken as
----------------------------
a whole) heretofore or contemporaneously furnished by or on behalf of Holdings
or any of its Subsidiaries in writing to any Agent or any Lender (including,
without limitation, all information contained in
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the Documents) for purposes of or in connection with this Agreement or any
transaction contemplated herein or therein is, and all other such factual
information (taken as a whole) hereafter furnished by or on behalf of any such
Persons in writing to any Agent or any Lender will be, true and accurate in all
material respects on the date as of which such information is dated or certified
and not incomplete by omitting to state any material fact necessary to make such
information (taken as a whole) not misleading at such time in light of the
circumstances under which such information was provided, it being understood and
agreed that for purposes of this Section 7.09, such factual information shall
not include the Projections or any pro forma financial information.
--- -----
7.10 Financial Condition; Financial Statements; Undisclosed
------------------------------------------------------
Liabilities; Projections. (a) On and as of the Initial Borrowing Date, on a
- ------------------------
pro forma basis after giving effect to the Transaction and to all Indebtedness
- --- -----
(including the Loans and the Senior Subordinated Notes) incurred, and to be
incurred, and Liens created, and to be created, by each Credit Party in
connection therewith, with respect to the US Borrowers (on a combined basis),
the Dutch Borrower (on a stand-alone basis) and RPP USA and its Subsidiaries (on
a consolidated basis), (x) the sum of the assets, at a fair valuation, of the US
Borrowers (on a combined basis), the Dutch Borrower (on a stand-alone basis) and
RPP USA and its Subsidiaries (on a consolidated basis) will exceed its or their
debts, (y) it has or they have not incurred nor intended to, nor believes or
believe that it or they will, incur debts beyond its or their ability to pay
such debts as such debts mature and (z) it or they will have sufficient capital
with which to conduct its or their business. For purposes of this Section
7.10(a), "debt" means any liability on a claim, and "claim" means (i) right to
payment, whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured or (ii) right to an equitable remedy for
breach of performance if such breach gives rise to a payment, whether or not
such right to an equitable remedy is reduced to judgment, fixed, contingent,
matured, unmatured, disputed, undisputed, secured or unsecured. The amount of
contingent liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability.
(b) (I) (i) The audited consolidated balance sheets of the Resins
Business for its fiscal years ended on December 31, 1997, December 31, 1998 and
December 31, 1999, respectively, and the related audited consolidated statements
of income and cash flows of the Resins Business for such fiscal years ended on
such dates, and (ii) the audited consolidated balance sheet of the Resins
Business for its fiscal quarter ended June 30, 2000, and the related audited
consolidated statements of income and cash flows of the Resins Business for the
six month period ended on such date, copies of which (in each case) have been
furnished to the Lenders prior to the Initial Borrowing Date, present fairly in
all material respects the consolidated financial position of the Resins Business
at the dates of such balance sheets and the consolidated results of the
operations of the Resins Business for the periods covered thereby. All such
financial statements have been prepared in accordance with GAAP consistently
applied except to the extent provided in the notes to said financial statements.
(II) The Pro Forma Financial Statements, copies of which have been
--- -----
furnished to the Lenders prior to the Initial Borrowing Date pursuant to Section
5.16(a), present a good faith estimate of the consolidated pro forma financial
--- -----
condition of RPP USA at the date of such
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Pro Forma Financial Statements and for the period covered thereby (after giving
- --- -----
effect to the Transaction).
(c) Since June 30, 2000 (but after giving effect to the Transaction as
if same had occurred prior thereto), nothing has occurred that has had or could
reasonably be expected to have a Material Adverse Effect.
(d) Except as fully reflected in the financial statements described in
Section 7.10(b) and the Indebtedness incurred under this Agreement, the Initial
Holdings PIK Junior Subordinated Notes, the Holdings Contingent Seller
Subordinated Note, the Senior Subordinated Note Documents and the Overdraft
Line, (i) as of the Initial Borrowing Date (and after giving effect to any Loans
made on such date), there were no liabilities or obligations (excluding
obligations incurred in the ordinary course of business) with respect to
Holdings or any of its Subsidiaries of any nature whatsoever (whether absolute,
accrued, contingent or otherwise and whether or not due) which, either
individually or in the aggregate, could reasonably be expected to be material to
Holdings and its Subsidiaries taken as a whole and (ii) as of the Initial
Borrowing Date, neither Holdings nor any Borrower knows of any basis for the
assertion against it or any of its Subsidiaries of any such liability or
obligation which, either individually or in the aggregate, are or would be
reasonably likely to have, a Material Adverse Effect.
(e) The Projections delivered to the Agents and the Lenders prior to
the Initial Borrowing Date have been prepared on a basis consistent with the
financial statements referred to in Section 7.10(b), and have been prepared in
good faith and are based on reasonable assumptions under the then known facts
and circumstances. On the Initial Borrowing Date, the management of each of
Holdings and each Borrower believes that the Projections are reasonable and
attainable based upon the then known facts and circumstances (it being
understood that nothing contained in this Section 7.10(e) shall constitute a
representation that the results forecasted in such Projections will in fact be
achieved). There is no fact known to Holdings or any Borrower which could
reasonably be expected to have a Material Adverse Effect, which has not been
disclosed herein or in such other documents, certificates and statements
furnished to the Lenders for use in connection with the transactions
contemplated hereby.
7.11 The Security Interests. On and after the Initial Borrowing
----------------------
Date, each of the Security Documents creates (or after the execution and
delivery thereof will create), as security for the Obligations secured thereby,
a valid and enforceable perfected security interest in and Lien on all of the
Collateral subject thereto, superior to and prior to the rights of all third
Persons, and subject to no other Liens (except that (i) the Security Agreement
Collateral may be subject to Permitted Liens relating thereto, (ii) the
Mortgaged Properties may be subject to Permitted Encumbrances relating thereto,
(iii) the Pledge Agreement Collateral may be subject to the Liens described in
clauses (a) and (e) of Section 9.03 and (iv) the security interests created in
Rolling Stock and Tractor Trailers shall only be perfected to the extent
required pursuant to the US Security Agreement), in favor of the Collateral
Agent, provided that the security documentation covering Real Property
designated on Part B of Schedule IV as a "Foreign Lease Subject to an Assignment
For Security Purposes" may be subject to applicable limitations under local law.
No filings or recordings are required in order to perfect and/or render
enforceable as against third parties the security interests created under any
Security Document except for filings or recordings
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required in connection with any such Security Document which shall have been
made on or prior to the Initial Borrowing Date (or within 10 days thereafter) as
contemplated by Section 5.10 or 5.12 or on or prior to the execution and
delivery thereof as contemplated by Sections 8.11, 8.12 and 9.15.
7.12 Compliance with ERISA. (a) Part A of Schedule V sets forth, as
---------------------
of the Initial Borrowing Date, each Plan and each Multiemployer Plan; except as
set forth in Part B of Schedule V, each Plan (and each related trust, insurance
contract or fund) is in substantial compliance with its terms and with all
applicable laws, including without limitation ERISA and the Code; except as set
forth in Part C of Schedule V, each Plan (and each related trust, if any) which
is intended to be qualified under Section 401(a) of the Code has received a
determination letter from the Internal Revenue Service to the effect that it
meets the requirements of Sections 401(a) and 501(a) of the Code or, with
respect to a newly established Plan, the remedial amendment period described in
the regulations under Section 401(b) of the Code has not expired; no Reportable
Event has occurred; to the best knowledge of each of Holdings and each Borrower
after due inquiry, no Multiemployer Plan is insolvent or in reorganization; no
Plan has an Unfunded Current Liability; no Plan which is subject to Section 412
of the Code or Section 302 of ERISA has an accumulated funding deficiency,
within the meaning of such sections of the Code or ERISA, or has applied for or
received a waiver of an accumulated funding deficiency or an extension of any
amortization period, within the meaning of Section 412 of the Code or Section
303 or 304 of ERISA; all contributions required to be made with respect to a
Plan, a Multiemployer Plan and a Foreign Pension Plan have been timely made by
Holdings and each Subsidiary of Holdings, except to the extent that any failure
to timely make any such contribution could not, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; neither
Holdings nor any Subsidiary of Holdings has incurred any liability (including
any indirect, contingent or secondary liability) which, either individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect, to or on account of a Plan pursuant to Section 409, 502(i) or 502(l) of
ERISA or Section 401(a)(29), 4971 or 4975 of the Code or expects to incur any
such liability under any of the foregoing sections with respect to any Plan;
neither Holdings nor any Subsidiary of Holdings nor any ERISA Affiliate has
incurred any liability (including any indirect, contingent or secondary
liability) which, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, to or on account of a Plan pursuant
to Section 4062, 4063, 4064 or 4069 of ERISA or Section 401(a)(29) or 4971 of
the Code or expects to incur any such liability under any of the foregoing
sections with respect to any Plan; to the knowledge of Holdings and its
Subsidiaries, neither Holdings nor any Subsidiary of Holdings nor any ERISA
Affiliate has incurred any liability (including any indirect, contingent or
secondary liability) which, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, to or on account of a
Multiemployer Plan pursuant to Section 515, 4201, 4204, or 4212 of ERISA; no
condition exists which presents a material risk to Holdings or any Subsidiary of
Holdings or any ERISA Affiliate of incurring a liability which, either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, to or on account of a Plan or, to the best knowledge of
each of Holdings and each Borrower after due inquiry, a Multiemployer Plan
pursuant to the foregoing provisions of ERISA and the Code; no proceedings have
been instituted under Section 4042 of ERISA to terminate or appoint a trustee to
administer any Plan which is subject to Title IV of ERISA;
-62-
except as set forth in Part D of Schedule V, no action, suit, proceeding,
hearing, audit or investigation with respect to the administration, operation or
the investment of assets of any Plan (other than routine claims for benefits) is
pending, expected or, to the best knowledge of each of Holdings and each
Borrower after due inquiry, threatened; using actuarial assumptions and
computation methods consistent with Part 1 of subtitle E of Title IV of ERISA,
the aggregate liabilities of Holdings and its Subsidiaries and its ERISA
Affiliates to all Multiemployer Plans in the event of a complete withdrawal
therefrom, as of the close of the most recent fiscal year of each such
Multiemployer Plan ended prior to the date of the most recent Credit Event,
would not exceed an amount that could reasonably be expected to have a Material
Adverse Effect; each group health plan (as defined in Section 607(1) of ERISA or
Section 4980B(g)(2) of the Code) maintained by Holdings or any Subsidiary which
covers or has covered employees or former employees of Holdings, any Subsidiary
of Holdings or any ERISA Affiliate has at all times been operated in compliance
with the provisions of Part 6 of subtitle B of Title I of ERISA and Section
4980B of the Code except to the extent that any failure to comply could not be
reasonably expected to result in a material liability to Holdings or any of its
Subsidiaries; no lien imposed under the Code or ERISA on the assets of Holdings
or any Subsidiary of Holdings or any ERISA Affiliate exists or is likely to
arise on account of any Plan; and Holdings and its Subsidiaries may on a
prospective basis cease contributions to or terminate any employee benefit plan
maintained by any of them without incurring any material liability.
(b) Each Foreign Pension Plan has been maintained in substantial
compliance with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities. Neither
Holdings nor any of its Subsidiaries has incurred any material liability in
connection with the termination of or withdrawal from any Foreign Pension Plan
that has not been accrued or otherwise properly reserved on Holdings' or such
Subsidiary's balance sheet. With respect to each Foreign Pension Plan that is
required by applicable local law or by its terms to be funded through a separate
funding vehicle, the present value of the accrued benefit liabilities (whether
or not vested) under each such Foreign Pension Plan, determined as of the latest
valuation date for such Foreign Pension Plan on the basis of actuarial
assumptions, each of which is reasonable, did not exceed the current value of
the assets of such Foreign Pension Plan allocable to such benefit liabilities by
an amount which, when added to the aggregate amount of the accrued benefit
liabilities with respect to all other Foreign Pension Plans, could reasonably be
expected to have a Material Adverse Effect.
7.13 Capitalization. (a) On the Initial Borrowing Date, the
--------------
authorized capital stock of Holdings shall consist of (i) 1,000,000 shares of
common stock, $1.00 par value per share (such authorized shares of common stock,
together with any subsequently authorized shares of common stock of Holdings,
the "Holdings Common Stock"), of which 600,000 shares shall be issued and
outstanding, and (ii) 500,000 shares of preferred stock, $.01 par value per
share, none of which preferred stock shall be issued or outstanding. All such
outstanding shares of Holdings Common Stock have been duly and validly issued,
are fully paid and nonassessable and have been issued free of preemptive rights.
Except as set forth on Schedule VI, Holdings does not have outstanding any
securities convertible into or exchangeable for its capital stock or outstanding
any rights to subscribe for or to purchase, or any options for the purchase of,
or any agreements providing for the issuance (contingent or otherwise) of, or
any calls, commitments or
-63-
claims of any character relating to, its capital stock, except (i) as set forth
in any Shareholders' Agreement as in effect on the Initial Borrowing Date and
(ii) for options, warrants, restricted stock units and rights to purchase shares
of Holdings' Common Stock and/or Qualified Preferred Stock which may be issued
from time to time.
(b) On the Initial Borrowing Date, the authorized membership
interests of RPP USA shall consist of 1,000,000 units, all of which units shall
be issued and outstanding and owned by Holdings. All such outstanding units have
been duly and validly issued, are fully paid and nonassessable and have been
issued free of preemptive rights. RPP USA does not have outstanding any
securities convertible into or exchangeable for its capital stock or outstanding
any rights to subscribe for or to purchase, or any options for the purchase of,
or any agreements providing for the issuance (contingent or otherwise) of, or
any calls, commitments or claims of any character relating to, its capital
stock.
7.14 Subsidiaries. On and as of the Initial Borrowing Date, Holdings
------------
has no Subsidiaries other than those Subsidiaries listed on Schedule VII.
Schedule VII correctly sets forth, as of the Initial Borrowing Date, (i) the
percentage ownership (direct and indirect) of Holdings in each class of capital
stock or other equity interests of each of its Subsidiaries and also identifies
the direct owner thereof, and (ii) the jurisdiction of organization of each
Subsidiary of Holdings. All outstanding equity interests of each Subsidiary of
Holdings have been duly and validly issued, are fully paid and non-assessable,
have been issued free of preemptive rights and, in the case of equity of Foreign
Subsidiaries, no depository receipts have been issued in respect of such equity.
No Subsidiary of Holdings has outstanding any securities convertible into or
exchangeable for its capital stock or outstanding any right to subscribe for or
to purchase, or any options or warrants for the purchase of, or any agreement
providing for the issuance (contingent or otherwise) of or any calls,
commitments or claims of any character relating to, its capital stock or any
stock appreciation or similar rights.
7.15 Intellectual Property, etc. Each of Holdings and each of its
--------------------------
Subsidiaries owns or has a valid existing license to use all patents,
trademarks, permits, service marks, trade names, copyrights, licenses,
franchises and other rights with respect to the foregoing reasonably necessary
for the conduct of its business, without any known conflict with the rights of
others which, or the failure to obtain which, as the case may be, could
reasonably be expected to result in a Material Adverse Effect.
7.16 Compliance with Statutes, etc. Each of Holdings and each of its
-----------------------------
Subsidiaries is in compliance with all applicable statutes, regulations, rules
and orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its business and the
ownership of its property, except such non-compliance as is not reasonably
likely to, individually or in the aggregate, have a Material Adverse Effect.
7.17 Environmental Matters. (a) Each of Holdings and each of its
---------------------
Subsidiaries has complied with, and on the date of each Credit Event is in
material compliance with, all applicable Environmental Laws and the requirements
of any permits issued under such Environmental Laws and neither Holdings nor any
of its Subsidiaries is liable for any material penalties, fines or forfeitures
for failure to comply with any of the foregoing. There are no pending or past
or, to
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the best knowledge of each of Holdings and each Borrower after due inquiry,
threatened Environmental Claims against Holdings or any of its Subsidiaries, or
against any Real Property owned or operated by Holdings or any of its
Subsidiaries. There are no facts, circumstances, conditions or occurrences with
respect to the business or operations of Holdings or any of its Subsidiaries or
any Real Property at any time owned or operated by Holdings or any of its
Subsidiaries or, to the knowledge of each of Holdings and each Borrower, any
property adjoining or in the vicinity of any such Real Property that could
reasonably be expected (i) to form the basis of an Environmental Claim against
Holdings or any of its Subsidiaries or any such Real Property or (ii) to cause
any such Real Property to be subject to any restrictions on the ownership,
occupancy, use or transferability of such Real Property by Holdings or any of
its Subsidiaries under any applicable Environmental Law.
(b) Hazardous Materials have not at any time been generated, used,
treated or stored on, or transported by Holdings or any of its Subsidiaries or
by any Person acting for or under contract to Holdings or any of its
Subsidiaries or, to the knowledge of each of Holdings and each Borrower, by any
other Person, to or from any Real Property owned or operated by Holdings or any
of its Subsidiaries except in material compliance with all applicable
Environmental Laws and as reasonably required in connection with the operation,
use and maintenance of such Real Property or by Holdings' or such Subsidiary's
business. Hazardous Materials have not at any time been Released by Holdings or
any of its Subsidiaries or by any Person acting for or under contract to
Holdings or any of its Subsidiaries or, to the knowledge of each of Holdings and
each Borrower, by any other Person on or from any Real Property owned or
operated by Holdings or any of its Subsidiaries, except in compliance with all
applicable Environmental Laws and as reasonably required in connection with the
operation, use and maintenance of such Real Property or by Holdings' or such
Subsidiary's business.
(c) Notwithstanding anything to the contrary in this Section 7.17,
the representations and warranties made in this Section 7.17 shall only be
untrue if the aggregate effect of all conditions, failures, noncompliances,
Environmental Claims and Releases, in each case of the types described above,
could reasonably be expected to have a Material Adverse Effect.
7.18 Properties. All Real Property owned by Holdings or any of its
----------
Subsidiaries and all material Leaseholds leased by Holdings or any of its
Subsidiaries, in each case as of the Initial Borrowing Date, and the nature of
the interest therein, is correctly set forth in Schedule IV. Each of Holdings
and each of its Subsidiaries has good and marketable title to, or a validly
subsisting leasehold interest in, all material properties owned or leased by it,
including all Real Property reflected in Schedule IV and in the financial
statements (including the Pro Forma Financial Statements) referred to in Section
--- -----
7.10(b) (except such properties sold in the ordinary course of business since
the dates of the respective financial statements referred to therein), free and
clear of all Liens, other than Permitted Liens.
7.19 Labor Relations. Neither Holdings nor any of its Subsidiaries
---------------
is engaged in any unfair labor practice that could reasonably be expected to
have a Material Adverse Effect. There is (i) no unfair labor practice complaint
pending against Holdings or any of its Subsidiaries or, to the best knowledge of
each of Holdings and each Borrower, threatened against any of them, before the
National Labor Relations Board, and no grievance or arbitration proceeding
arising out
-65-
of or under any collective bargaining agreement is so pending against Holdings
or any of its Subsidiaries or, to the best knowledge of each of Holdings and
each Borrower, threatened against any of them, (ii) no strike, labor dispute,
slowdown or stoppage pending against Holdings or any of its Subsidiaries or, to
the best knowledge of each of Holdings and each Borrower, threatened against
Holdings or any of its Subsidiaries, and (iii) no union representation question
existing with respect to the employees of Holdings or any of its Subsidiaries
and, to the best knowledge of each of Holdings and each Borrower, no union
organizing activities are taking place, except (with respect to any matter
specified in clause (i), (ii) or (iii) above, either individually or in the
aggregate) such as is not reasonably likely to have a Material Adverse Effect.
7.20 Tax Returns and Payments. Each of Holdings and each of its
------------------------
Subsidiaries has filed all federal income tax returns and all other material tax
returns, domestic and foreign, required to be filed by it and has paid all
material taxes and assessments payable by it which have become due, except for
those contested in good faith and fully provided for on the financial statements
of Holdings and its Subsidiaries in accordance with GAAP. Each of Holdings and
each of its Subsidiaries has provided adequate reserves (in the good faith
judgment of the management of Holdings) for the payment of all federal, state
and foreign income taxes which have not yet become due. There is no material
action, suit, proceeding, investigation, audit, or claim now pending or, to the
knowledge of each of Holdings and each Borrower, threatened by any authority
regarding any taxes relating to Holdings or any of its Subsidiaries. Neither
Holdings nor any of its Subsidiaries has entered into an agreement or waiver or
been requested to enter into an agreement or waiver extending any statute of
limitations relating to the payment or collection of taxes of Holdings or any of
its Subsidiaries, or is aware of any circumstances that would cause the taxable
years or other taxable periods of Holdings or any of its Subsidiaries not to be
subject to the normally applicable statute of limitations, in each case except
to the extent the liability for taxes of Holdings or such Subsidiary giving rise
to any extension of any such normally applicable statute of limitation is not
material.
7.21 Existing Indebtedness. Schedule III sets forth a true and
---------------------
complete list of all Indebtedness of Holdings and its Subsidiaries as of the
Initial Borrowing Date and which is to remain outstanding after giving effect to
the Transaction (excluding the Obligations, the Senior Subordinated Notes, the
Initial Holdings PIK Junior Subordinated Notes, the Overdraft Line and the
Holdings Contingent Seller Subordinated Note, the "Existing Indebtedness"), in
each case showing the aggregate principal amount thereof and the name of the
respective borrower and any other entity which directly or indirectly guaranteed
such debt.
7.22 Insurance. Set forth on Schedule VIII is a true, correct and
---------
complete summary of all insurance carried by each Credit Party on and as of the
Initial Borrowing Date, with the amounts insured set forth therein.
7.23 Representations and Warranties in Other Documents. All
-------------------------------------------------
representations and warranties set forth in the other Documents were true and
correct in all material respects at the time as of which such representations
and warranties were made (or deemed made) and shall be true and correct in all
material respects as of the Initial Borrowing Date as if such representations or
warranties were made on and as of such date, unless stated to relate to a
specific earlier
-66-
date, in which case such representations or warranties shall be true and correct
in all material respects as of such earlier date.
7.24 The Transaction. At the time of consummation thereof, the
---------------
Transaction shall have been consummated in all material respects in accordance
with the terms of the relevant Documents therefor and all applicable laws. At
the time of consummation thereof, all material consents and approvals of, and
filings and registrations with, and all other actions in respect of, all
governmental agencies, authorities or instrumentalities required in order to
make or consummate the Transaction in accordance with the terms of the relevant
Documents therefor and all applicable laws have been obtained, given, filed or
taken and are or will be in full force and effect (or effective judicial relief
with respect thereto has been obtained). All applicable waiting periods with
respect thereto have or, prior to the time when required, will have, expired
without, in all such cases, any action being taken by any competent authority
which restrains, prevents, or imposes material adverse conditions upon the
Transaction. Additionally, there does not exist any judgment, order or
injunction prohibiting or imposing material adverse conditions upon any element
of the Transaction, the occurrence of any Credit Event, or the performance by
Holdings and its Subsidiaries of their respective obligations under the
Documents and all applicable laws.
7.25 Special Purpose Corporations. (a) Holdings has no significant
----------------------------
assets (other than the membership interests of RPP USA) or material liabilities
(other than those liabilities under (i) the Documents to which it is a party and
(ii) after the assumption of the Acquisition Corp. PIK Junior Subordinated Notes
by Holdings or the exchange of the Initial Holding PIK Junior Subordinated Notes
by Holdings as permitted hereunder, the New Holdings PIK Junior Subordinated
Notes).
(b) US Finance Corp. has no significant assets or material
liabilities (other than those liabilities under the Documents to which it is a
party).
7.26 Subordination. The subordination provisions contained in the
-------------
Holdings PIK Junior Subordinated Notes, the Holdings Contingent Seller
Subordinated Note and the Senior Subordinated Note Documents and, on and after
the execution and delivery thereof, each of the agreements or instruments
relating to the Holdings Shareholder Subordinated Notes, Permitted Subordinated
Refinancing Indebtedness and Permitted Subordinated Indebtedness, are
enforceable against Holdings, each Borrower, the respective Subsidiary
Guarantors and the holders of such Indebtedness, as applicable, and all
Obligations hereunder and under the other Credit Documents (including, without
limitation, the US Subsidiaries Guaranty and the Foreign Subsidiaries Guaranty)
are within the definitions of "Senior Debt" (or "Guarantor Senior Debt" in the
case of the obligations of any Subsidiary Guarantor) and "Designated Senior
Debt" (or any similar terms in any such case) included in such subordination
provisions.
SECTION 8. Affirmative Covenants. Each of Holdings and each Borrower
---------------------
hereby covenants and agrees that as of the Effective Date and thereafter for so
long as this Agreement is in effect and until the Total Commitment has
terminated, no Letters of Credit or Notes are outstanding and the Loans and
Unpaid Drawings, together with interest, Fees and all other Obligations (other
than any indemnities described in Section 15.13 which are not then due and
payable) incurred hereunder, are paid in full:
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8.01 Information Covenants. RPP USA will furnish to each Lender:
---------------------
(a) Monthly Reports. Within 60 days after the end of each fiscal
---------------
month of RPP USA (commencing with its fiscal month ending January 31, 2001), (i)
the consolidated balance sheet of RPP USA and its Subsidiaries as at the end of
such fiscal month and the related consolidated statements of income for such
fiscal month and for the elapsed portion of the fiscal year ended with the last
day of such fiscal month, in each case (x) without giving effect to any
Permitted Acquisition consummated in the 60-day period prior to the end of such
fiscal month and (y) commencing with RPP USA's fiscal month ending January 31,
2002, setting forth comparative figures for the corresponding fiscal month in
the prior fiscal year and comparable budgeted figures for such fiscal month as
set forth in the respective budget delivered pursuant to Section 8.01(d) and
(ii) the consolidated statements of income for such fiscal month for each
Acquired Business acquired during the 60-day period prior to the end of such
fiscal month, all of which shall be certified by the chief financial officer or
other Authorized Officer of RPP USA, subject to normal year-end audit
adjustments and the absence of footnotes.
(b) Quarterly Financial Statements. Within 45 days after the close
------------------------------
of the first three quarterly accounting periods in each fiscal year of RPP USA,
(i) the consolidated balance sheet of RPP USA and its Subsidiaries as at the end
of such quarterly accounting period and the related consolidated statements of
income and retained earnings and of cash flows for such quarterly accounting
period and for the elapsed portion of the fiscal year ended with the last day of
such quarterly accounting period, in each case setting forth comparative figures
for the corresponding quarterly accounting period in the prior fiscal year and
comparable budgeted figures for such quarterly accounting period as set forth in
the respective budget delivered pursuant to Section 8.01(d) and (ii)
management's discussion and analysis of significant operational and financial
developments during such quarterly period, all of which shall be in reasonable
detail and certified by the chief financial officer or other Authorized Officer
of RPP USA that they fairly present in all material respects the financial
condition of RPP USA and its Subsidiaries as of the dates indicated and the
results of their operations and changes in their cash flows for the periods
indicated, subject to normal year-end audit adjustments and the absence of
footnotes. If RPP USA has designated any Unrestricted Subsidiaries hereunder,
then the quarterly financial information required by this Section 8.01(b) shall
include a reasonably detailed presentation, either on the face of the financial
statements or in the footnotes thereto, and in management's discussion and
analysis of operational and financial developments, of the financial condition
and results of operations of RPP USA and its Subsidiaries separate from the
financial condition and results of operations of the Unrestricted Subsidiaries
of RPP USA. In addition, to the extent that Holdings prepares quarterly
financial statements for its internal purposes or for the SEC, Holdings will
within 60 days after the close of each of its quarterly accounting periods (or
such shorter period as may be required by the SEC) furnish same to each Lender.
(c) Annual Financial Statements. Within 90 days after the close of
---------------------------
each fiscal year of RPP USA, (i) the consolidated balance sheet of RPP USA and
its Subsidiaries as at the end of such fiscal year and the related consolidated
statements of income and retained earnings and of cash flows for such fiscal
year, in each case setting forth comparative consolidated figures for the
preceding fiscal year and comparable budgeted figures for such fiscal year as
set forth in the respective budget delivered pursuant to Section 8.01(d) and
(except for such comparable bud-
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geted figures) certified by PriceWaterhouseCoopers LLP or such other independent
certified public accountants of recognized national standing as shall be
reasonably acceptable to the Administrative Agent, in each case to the effect
that such statements fairly present in all material respects the financial
condition of RPP USA and its Subsidiaries as of the dates indicated and the
results of their operations and changes in financial position for the periods
indicated in conformity with GAAP applied on a basis consistent with prior
years, together with a certificate of such accounting firm stating that in the
course of its regular audit of the business of RPP USA and its Subsidiaries,
which audit was conducted in accordance with generally accepted auditing
standards, no Default or Event of Default which has occurred and is continuing
has come to their attention or, if such a Default or an Event of Default has
come to their attention, a statement as to the nature thereof, and (ii)
management's discussion and analysis of significant operational and financial
developments during such fiscal year. If RPP USA has designated any Unrestricted
Subsidiaries hereunder, then the annual financial information required by this
Section 8.01(c) shall include a reasonably detailed presentation, either on the
face of the financial statements or in the footnotes thereto, and in
management's discussion and analysis of operational and financial developments,
of the financial condition and results of operations of RPP USA and its
Subsidiaries separate from the financial condition and results of operations of
the Unrestricted Subsidiaries of RPP USA. In addition, to the extent that
Holdings prepares annual financial statements for its internal purposes or for
the SEC, Holdings will within 120 days after the close of each of its fiscal
years (or such shorter period as may be required by the SEC) furnish same to
each Lender.
(d) Budgets, etc. Not more than 60 (or, in the case of RPP USA's
-------------
fiscal year commencing on January 1, 2001, 90) days after the commencement of
each fiscal year of RPP USA, consolidated budgets of RPP USA and its
Subsidiaries (x) in reasonable detail for each of the four fiscal quarters of
such fiscal year and (y) in summary form for each of the five fiscal years
immediately following such fiscal year, in each case as customarily prepared by
management for its internal use setting forth, with appropriate discussion, the
principal assumptions upon which such budgets are based. Together with each
delivery of financial statements pursuant to Sections 8.01(b) and (c), a
comparison of the current year to date financial results against the budgets
required to be submitted pursuant to this clause (d) shall be presented.
(e) Officer's Certificates. At the time of the delivery of the
----------------------
financial statements provided for in Sections 8.01(b) and (c), a certificate of
the chief financial officer or other Authorized Officer of RPP USA to the effect
that, to the best of such officer's knowledge, no Default or Event of Default
exists or, if any Default or Event of Default does exist, specifying the nature
and extent thereof, which certificate shall, (I) if delivered in connection with
the financial statements in respect of a period ending on the last day of a
fiscal quarter or fiscal year of RPP USA, set forth (x) the calculations
required to establish whether (A) Holdings and its Subsidiaries were in
compliance with the provisions of Sections 3.03, 4.02, 9.02, 9.04(d), (g), (h),
(i), (l), (m) and (o), 9.05(a), (f), (g), (l), (p) and (q), 9.06(b) and (f), and
(B) RPP USA and its Subsidiaries were in compliance with the provisions of
Sections 9.09, 9.10 and 9.11, in each case, as at the end of such fiscal quarter
or year, as the case may be, and (y) the calculation of the Total Leverage
Ratio, the Adjusted Total Leverage Ratio and the Adjusted Senior Leverage Ratio
as at the last day of the respective fiscal quarter or fiscal year of RPP USA,
as the case may be, and (II) if delivered with the financial statements required
by Section 8.01(c), set forth in
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reasonable detail the amount of (and the calculations required to establish the
amount of) Adjusted Excess Cash Flow for the respective Excess Cash Flow Payment
Period.
(f) Notice of Default or Litigation. Promptly, and in any event
-------------------------------
within three Business Days after an executive officer of Holdings or any of its
Subsidiaries obtains actual knowledge thereof, notice of (i) the occurrence of
any event which constitutes a Default or an Event of Default, which notice shall
specify the nature and period of existence thereof and what action each of
Holdings and each Borrower proposes to take with respect thereto, (ii) any
litigation or proceeding pending or threatened (x) against Holdings or any of
its Subsidiaries which could reasonably be expected to have a Material Adverse
Effect, (y) with respect to any material Indebtedness of Holdings or any of its
Subsidiaries or (z) with respect to any Document (other than such Documents
referred to in clause (vii) of the definition thereof), (iii) any governmental
investigation pending or threatened against Holdings or any of its Subsidiaries
which could reasonably be expected to have a Material Adverse Effect and (iv)
any other event which could reasonably be expected to have a Material Adverse
Effect.
(g) Auditors' Reports. Promptly upon receipt thereof, a copy of each
-----------------
report or "management letter" submitted to Holdings or any of its Subsidiaries
by its independent accountants in connection with any annual, interim or special
audit made by them of the books of Holdings or any of its Subsidiaries and the
management's non-privileged responses thereto.
(h) Environmental Matters. Promptly after an executive officer of
---------------------
Holdings or any of its Subsidiaries obtains actual knowledge of any of the
following (but only to the extent that any of the following, either individually
or in the aggregate, could reasonably be expected to have a Material Adverse
Effect), written notice of:
(i) any pending or threatened Environmental Claim against Holdings
or any of its Subsidiaries or any Real Property owned or operated by
Holdings or any of its Subsidiaries;
(ii) any condition or occurrence on any Real Property at any time
owned or operated by Holdings or any of its Subsidiaries that (x) results
in noncompliance by Holdings or any of its Subsidiaries with any applicable
Environmental Law or (y) could reasonably be anticipated to form the basis
of an Environmental Claim against Holdings or any of its Subsidiaries or
any such Real Property;
(iii) any condition or occurrence on any Real Property owned or
operated by Holdings or any of its Subsidiaries that could reasonably be
anticipated to cause such Real Property to be subject to any restrictions
on the ownership, occupancy, use or transferability by Holdings or such
Subsidiary, as the case may be, of its interest in such Real Property under
any Environmental Law; and
(iv) the taking of any removal or remedial action in response to the
actual or alleged presence of any Hazardous Material on any Real Property
owned or operated by Holdings or any of its Subsidiaries.
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All such notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and each of
Holdings', each of its Subsidiary's and each other third Person's response or
proposed response thereto. In addition, Holdings agrees to provide the Lenders
with copies of all material non-privileged communications by Holdings or any of
its Subsidiaries with any Person, government or governmental agency relating to
Environmental Laws or to any of the matters set forth in clauses (i)-(iv) above,
and such reasonably detailed non-privileged reports relating to any of the
matters set forth in clauses (i)-(iv) above as may reasonably be requested by
the Administrative Agent or the Required Lenders.
(i) Annual Meetings with Lenders. At the written request of the
----------------------------
Administrative Agent, RPP USA will, within 120 days after the close of each of
its fiscal years, hold a meeting (at a mutually agreeable location and time)
open to all of the Lenders at which meeting shall be reviewed the financial
results of the previous fiscal year and the financial condition of RPP USA and
its Subsidiaries and the budgets presented for the current fiscal year of RPP
USA and its Subsidiaries.
(j) Notice of Commitment Reductions and Mandatory Repayments. On or
--------------------------------------------------------
prior to the date of any reduction to the Total Revolving Loan Commitment or any
mandatory repayment of outstanding Term Loans pursuant to any of Sections
4.02(d) through (h), inclusive, RPP USA shall provide written notice of the
amount of the respective reduction or repayment, as the case may be, to the
Total Revolving Loan Commitment or the outstanding Term Loans, as applicable,
and the calculation thereof (in reasonable detail).
(k) Other Information. Promptly upon transmission thereof, copies of
-----------------
any filings and registrations with, and reports to, the SEC by Holdings or any
of its Subsidiaries and copies of all financial statements, proxy statements,
notices and reports as Holdings or any of its Subsidiaries shall send generally
to analysts and the holders of their capital stock or of any Permitted Debt,
Holdings PIK Junior Subordinated Notes or the Senior Subordinated Notes, in
their capacity as such holders (to the extent not theretofore delivered to the
Lenders pursuant to this Agreement) and, with reasonable promptness, such other
information or documents (financial or otherwise) as any Agent on its own behalf
or on behalf of the Required Lenders may reasonably request from time to time.
8.02 Books, Records and Inspections. Holdings will, and will cause
------------------------------
each of its Subsidiaries to, keep proper books of record and account in which
full, true and correct entries in conformity with GAAP and all requirements of
law shall be made of all dealings and transactions in relation to its business
and activities. Holdings will, and will cause each of its Subsidiaries to,
permit, upon reasonable notice to the chief financial officer or other
Authorized Officer of Holdings, officers and designated representatives of any
Agent or the Required Lenders to visit and inspect under the guidance of
officers of Holdings any of the properties or assets of Holdings and any of its
Subsidiaries in whomsoever's possession, and to examine the books of account of
Holdings and any of its Subsidiaries and discuss the affairs, finances and
accounts of Holdings and of any of its Subsidiaries with, and be advised as to
the same by, their officers and independent accountants, all at such reasonable
times and intervals and to such reasonable extent as such Agent or the Required
Lenders may desire, provided that so long as no Default or Event of
--------
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Default is then in existence, Holdings shall have the right to participate in
any discussions of the Agents or the Lenders with any independent accountants of
Holdings.
8.03 Insurance. (a) RPP USA will, and will cause each of its
---------
Subsidiaries to, (i) maintain, with financially sound and reputable insurance
companies, insurance on all its property in at least such amounts and against at
least such risks as is consistent and in accordance with industry practice and
(ii) furnish to the Administrative Agent and each of the Lenders, upon request,
full information as to the insurance carried. Such insurance shall include
physical damage insurance on all real and personal property (whether now owned
or hereafter acquired) on an all risk basis and business interruption insurance.
The provisions of this Section 8.03 shall be deemed supplemental to, but not
duplicative of, the provisions of any Security Documents that require the
maintenance of insurance.
(b) RPP USA will, and will cause each of its Subsidiaries to, at all
times keep the respective property of RPP USA and its Subsidiaries (except real
or personal property leased or financed through third parties in accordance with
this Agreement) insured in favor of the Collateral Agent, and all policies or
certificates with respect to such insurance (and any other insurance maintained
by, or on behalf of, RPP USA or any Subsidiary of RPP USA) (i) shall be endorsed
to the Collateral Agent's satisfaction for the benefit of the Collateral Agent
(including, without limitation, by naming the Collateral Agent as certificate
holder, mortgagee and loss payee with respect to real property, certificate
holder and loss payee with respect to personal property, additional insured with
respect to general liability and umbrella liability coverage and certificate
holder with respect to workers' compensation insurance), (ii) shall state that
such insurance policies shall not be cancelled or materially changed without at
least 30 days' prior written notice thereof by the respective insurer to the
Collateral Agent and (iii) shall, upon the request of the Collateral Agent, be
deposited with the Collateral Agent.
(c) If RRP USA or any of its Subsidiaries shall fail to maintain all
insurance in accordance with this Section 8.03, or if RPP USA or any of its
Subsidiaries shall fail to so name the Collateral Agent as an additional
insured, mortgagee or loss payee, as the case may be, or so deposit all
certificates with respect thereto, the Administrative Agent and/or the
Collateral Agent shall have the right (but shall be under no obligation) to
procure such insurance, and the Credit Parties agree to jointly and severally
reimburse the Administrative Agent or the Collateral Agent, as the case may be,
for all costs and expenses of procuring such insurance.
8.04 Payment of Taxes. Holdings will pay and discharge, and will
----------------
cause each of its Subsidiaries to pay and discharge, all material taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any material properties belonging to it, prior to the
date on which penalties attach thereto, and all material lawful claims for sums
that have become due and payable which, if unpaid, might become a Lien not
otherwise permitted under Section 9.03(a); provided that neither Holdings nor
--------
any of its Subsidiaries shall be required to pay any such tax, assessment,
charge, levy or claim which is being contested in good faith and by proper
proceedings if it has maintained adequate reserves with respect thereto in
accordance with GAAP.
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8.05 Corporate Franchises. Holdings will do, and will cause each of
--------------------
its Subsidiaries to do, or cause to be done, all things necessary to preserve
and keep in full force and effect its existence and its material rights,
franchises, authority to do business, licenses and patents, except for rights,
franchises, authority to do business, licenses and patents the loss of which
(individually or in the aggregate) could not reasonably be expected to have a
Material Adverse Effect; provided, however, that any transaction permitted by
-------- -------
Section 9.02 will not constitute a breach of this Section 8.05.
8.06 Compliance with Statutes; etc. Holdings will, and will cause
------------------------------
each of its Subsidiaries to, comply with all applicable statutes, regulations
and orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its business and the
ownership of its property, except for such noncompliances as would not, either
individually or in the aggregate, have a Material Adverse Effect or a material
adverse effect on the ability of any Credit Party to perform its obligations
under any Credit Document to which it is a party.
8.07 Compliance with Environmental Laws. (a) (i) Holdings will
----------------------------------
comply, and will cause each of its Subsidiaries to comply, in all material
respects with all Environmental Laws applicable to their businesses or the
ownership or use of its Real Property now or hereafter owned or operated by
Holdings or any of its Subsidiaries, will promptly pay or, with respect to any
of its Subsidiaries, cause to be paid all costs and expenses incurred in
connection with such compliance, and will keep or cause to be kept all such Real
Property free and clear of any Liens imposed pursuant to such Environmental Laws
and (ii) neither Holdings nor any of its Subsidiaries will generate, use, treat,
store or Release, or permit the generation, use, treatment, storage or Release
of, Hazardous Materials on any Real Property owned or operated by Holdings or
any of its Subsidiaries other than in compliance with Environmental Laws and as
required in connection with the normal business operations of Holdings and its
Subsidiaries, or transport or permit the transportation of Hazardous Materials
other than in compliance with Environmental Laws and as required in connection
with the normal business operations of Holdings and its Subsidiaries, unless the
failure to comply with the requirements specified in clause (i) or (ii) above,
either individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect. If Holdings or any of its Subsidiaries or any
tenant or occupant of any Real Property owned or operated by Holdings or any of
its Subsidiaries causes or permits any intentional or unintentional act or
omission resulting in the presence or Release of any Hazardous Material in a
quantity or concentration sufficient to require reporting or to trigger an
obligation to undertake clean-up, removal or remedial action under applicable
Environmental Laws, Holdings agrees to undertake, and/or to cause any of its
Subsidiaries, tenants, occupants or other third Persons to undertake, at their
sole expense, any clean up, removal, remedial or other action required pursuant
to Environmental Laws to remove and clean up any Hazardous Materials from any
Real Property except where the failure to do so would not reasonably be expected
to have a Material Adverse Effect; provided that neither Holdings nor any of its
--------
Subsidiaries shall be required to undertake any clean up, removal, remedial or
other action while the requirement to undertake such clean up, removal, remedial
or other action is being contested in good faith and by proper proceedings so
long as it has maintained adequate reserves with respect to such clean up,
removal, remedial or other action to the extent required in accordance with
GAAP. Notwithstanding any provision of this Section 8.07(a), Holdings shall not
be required by this
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Section 8.07(a) to exercise any degree of control over the operations of any of
its Subsidiaries that could reasonably be construed under applicable
Environmental Law to make Holdings liable for Environmental Claims arising from
or casually related to the Real Property or operations of such Subsidiary as an
owner or an operator or upon any other basis.
(b) At the written request of the Administrative Agent or the
Required Lenders, which request shall specify in reasonable detail the basis
therefor, at any time and from time to time, Holdings and the Borrowers will
provide, at their sole cost and expense, an environmental site assessment report
concerning any Real Property now or hereafter owned or operated by Holdings or
any of its Subsidiaries, prepared by an environmental consulting firm approved
by the Administrative Agent, addressing the matters in clause (i)(a), (b) or (c)
below which gives rise to such request (or, in the case of a request pursuant to
following clause (i)(a), addressing such matter as may be requested by the
Administrative Agent or the Required Lenders) and estimating the range of the
potential costs of any removal, remedial or other corrective action in
connection with any such matter, provided that in no event shall such request be
--------
made (i) unless (a) an Event of Default has occurred and is continuing, (b) the
Lenders receive notice under Section 8.01(h) for any event for which notice is
required to be delivered for any such Real Property or (c) the Administrative
Agent or the Required Lenders reasonably believe that there was a breach of any
representation, warranty or covenant contained in Section 7.17 or 8.07(a) or
(ii) if the performance of such environmental assessment would be prohibited
under Section 2.7 of each of the Environmental Agreement between Shell Oil
Company and Holdings or the Environmental Agreement between Shell Petroleum N.V.
and Holdings or could reasonably to be expected to cause the terms of any such
Environmental Agreement to be rendered void; provided, however, that preceding
-------- -------
clause (ii) is not intended to limit Holdings' or any of its Subsidiaries'
rights under either Environment Agreement or otherwise affect a determination as
to whether an environmental assessment is "necessary" under Section 2.7 of
either such Environmental Agreement. If Holdings or any Borrower fails to
provide the same within 60 days after such request was made, the Administrative
Agent may order the same, and Holdings and the Borrowers shall grant and hereby
grant, to the Administrative Agent and the Lenders and their agents access to
such Real Property owned or operated by Holdings or any of its Subsidiaries, and
specifically grants the Administrative Agent and the Lenders and their agents an
irrevocable non-exclusive license, subject to the rights of tenants, to
undertake such an assessment, all at each of Holdings' and the Borrowers'
expense.
8.08 ERISA. As soon as possible and, in any event, within ten
-----
Business Days after Holdings or any Subsidiary of Holdings or any ERISA
Affiliate knows or has reason to know of the occurrence of any of the following,
Holdings will deliver to each of the Lenders a certificate of the chief
financial officer or other Authorized Officer of Holdings setting forth the full
details as to such occurrence and the action, if any, that Holdings, such
Subsidiary or such ERISA Affiliate is required or proposes to take, together
with any notices required or proposed to be given to or filed with or by
Holdings, the Subsidiary, the ERISA Affiliate, the PBGC or any other
governmental agency, a Plan or, to the extent received by Holdings,
Multiemployer Plan participant or the Plan or Multiemployer Plan administrator
with respect thereto: that a Reportable Event has occurred (except to the
extent that Holdings has previously delivered to the Lenders a certificate and
notices (if any) concerning such event pursuant to the next clause hereof); that
a contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
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subject to Title IV of ERISA is subject to the advance reporting requirement of
PBGC Regulation Section 4043.61 (without regard to subparagraph (b)(1) thereof),
and an event described in subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC
Regulation Section 4043 is reasonably expected to occur within the following 30
days; that an accumulated funding deficiency, within the meaning of Section 412
of the Code or Section 302 of ERISA, has been incurred or an application has
been made or is reasonably expected to be made for a waiver or modification of
the minimum funding standard (including any required installment payments) or an
extension of any amortization period under Section 412 of the Code or Section
303 or 304 of ERISA with respect to a Plan; that any contribution required to be
made by Holdings, any Subsidiary or any ERISA Affiliate with respect to a Plan,
a Multiemployer Plan or Foreign Pension Plan has not been timely made; that a
Plan or a Multiemployer Plan has been or is reasonably expected to be
terminated, reorganized, partitioned or declared insolvent under Title IV of
ERISA; that a Plan has an Unfunded Current Liability; that proceedings have been
or are reasonably expected to be instituted under Section 4042 of ERISA to
terminate or appoint a trustee to administer a Plan or a Multiemployer Plan
which is subject to Title IV of ERISA; that a proceeding has been instituted
against Holdings, any Subsidiary of Holdings or any ERISA Affiliate pursuant to
Section 515 of ERISA to collect a delinquent contribution to a Multiemployer
Plan; that Holdings, any Subsidiary of Holdings or any ERISA Affiliate will or
is reasonably expected to incur any liability (including any indirect,
contingent, or secondary liability) to or on account of the termination of or
withdrawal from a Plan or a Multiemployer Plan under Section 4062, 4063, 4064,
4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan under Section
401(a)(29), 4971 or 4980 of the Code or with respect to a group health plan (as
defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under
Section 4980B of the Code (other than for the provision of benefits in
accordance with such Section); that Holdings or any Subsidiary of Holdings will
or is reasonably expected to incur any liability (including any indirect,
contingent, or secondary liability) with respect to a Plan under Section 4975 of
the Code or Section 409, 502 (i) or 502(1) of ERISA; or that Holdings or any
Subsidiary of Holdings will or is reasonably expected to incur any material
liability pursuant to any employee welfare benefit plan (as defined in Section
3(1) of ERISA) that provides benefits to retired employees or other former
employees (other than as required by Section 601 of ERISA) or any Plan. Holdings
will deliver to each of the Lenders (i) at the request of any Lender on ten
Business Days' notice a complete copy of the annual report (on Internal Revenue
Service Form 5500-series) of each Plan (including, to the extent required, the
related financial and actuarial statements and opinions and other supporting
statements, certifications, schedules and information) required to be filed with
the Internal Revenue Service and (ii) copies of any records, documents or other
information that must be furnished to the PBGC with respect to any Plan pursuant
to Section 4010 of ERISA. In addition to any certificates or notices delivered
to the Lenders pursuant to the first sentence hereof, copies of any material
documents or other information required to be furnished to the PBGC, and any
material notices received by Holdings, any Subsidiary of Holdings or any ERISA
Affiliate with respect to any Plan, Multiemployer Plan or Foreign Pension Plan
shall be delivered to the Lenders no later than ten Business Days after the date
such documents and/or information has been furnished to the PBGC or such notice
has been received by Holdings, such Subsidiary or such ERISA Affiliate, as
applicable.
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8.09 Good Repair. Holdings will, and will cause each of its
-----------
Subsidiaries to, ensure that its material properties and equipment used in its
business are kept in good repair, working order and condition, ordinary wear and
tear excepted, and that from time to time there are made in such properties and
equipment all needful and proper repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto, to the extent and in the manner
useful or customary for companies in similar businesses.
8.10 End of Fiscal Years; Fiscal Quarters. RPP USA will cause (i)
------------------------------------
each of its, and each of its Domestic Subsidiaries', fiscal years to end on
December 31 of each year and (ii) each of its, and each of its Domestic
Subsidiaries', fiscal quarters to end on March 31, June 30, September 30 and
December 31 of each year.
8.11 Additional Security; Further Assurances. (a) Promptly after
---------------------------------------
(i) the creation or acquisition of any new Domestic Subsidiary, (ii) the
creation or acquisition of any Wholly-Owned Foreign Subsidiary incorporated
under the laws of England or Wales in the United Kingdom, Belgium, The
Netherlands, Germany and/or Spain, (iii) any Wholly-Owned Foreign Subsidiary
created or acquired after the Initial Borrowing Date and which is incorporated
under the laws of England or Wales in the United Kingdom, Belgium, The
Netherlands, Germany and/or Spain has or at any time acquires assets with a fair
market value (as determined in good faith by RPP USA) which, when added to the
fair market value of the assets of all other newly created or acquired Wholly-
Owned Foreign Subsidiaries in any jurisdiction referred to in this clause (iii)
that has not taken the actions described in clause (C) below, equals or exceeds
$5,000,000, or (iv) any other Wholly-Owned Foreign Subsidiary (whether now
existing or hereafter created or acquired) has or at any time acquires assets
with a fair market value (as determined in good faith by RPP USA) of $5,000,000
or more, RPP USA will notify the Administrative Agent thereof and will cause (A)
in the case of preceding clause (i), each such new Domestic Subsidiary to duly
authorize, execute and deliver counterparts of the applicable Credit Documents
that any such Domestic Subsidiary would have been required to duly authorize,
execute and deliver on the Initial Borrowing Date if same were a Credit Party on
such date, (B) in the case of preceding clause (ii), each such Wholly-Owned
Foreign Subsidiary to duly authorize, execute and deliver counterparts of the
Foreign Subsidiaries Guaranty, (C) in the case of preceding clause (iii), each
such Wholly-Owned Foreign Subsidiary to duly authorize, execute and deliver
counterparts of the applicable Security Documents that any such Wholly-Owned
Foreign Subsidiary would have been required to duly authorize, execute and
deliver on the Initial Borrowing Date if same were Credit Party on such date,
and (D) in the case of preceding clause (iv), each such Wholly-Owned Foreign
Subsidiary to duly authorize, execute and deliver counterparts of the applicable
Credit Documents that any such Wholly-Owned Foreign Subsidiary would have been
required to duly authorize, execute and deliver on the Initial Borrowing Date if
same were Credit Party on such date, in each case together with each of the
other relevant certificates, opinions of counsel and other documentation that
such Subsidiary would have been required to deliver pursuant to Sections 5.03,
5.04, 5.09, 5.10, 5.11, 5.12 and 5.14 on the Initial Borrowing Date (although no
such Wholly-Owned Foreign Subsidiary shall be required to enter into any Credit
Document pursuant to this Section 8.11 to the extent that the entering into of
any such Credit Document by such Wholly-Owned Foreign Subsidiary would not be
permitted under applicable law).
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(b) Subject to Section 8.12 and clause (a) of this Section 8.11,
Holdings will, and will cause each of the other Credit Parties to, (i) grant to
the Collateral Agent security interests and mortgages in such assets and
properties of Holdings and such Credit Parties as are not covered by the
original Security Documents, and as may be reasonably requested from time to
time by the Administrative Agent or the Required Lenders, and (ii) in the case
of any such Domestic Subsidiary or Wholly-Owned Foreign Subsidiary, execute and
deliver a counterpart of the US Subsidiaries Guaranty and/or the Foreign
Subsidiaries Guaranty, as appropriate (or one or more other guaranties in
substantially similar form, if necessary) (all such security and guaranty
documentation are collectively referred to as the "Additional Security and
Guaranty Documents"), in each case (in the case of a Wholly-Owned Foreign
Subsidiary) to the extent that the entering into of such Credit Documents by
such Wholly-Owned Foreign Subsidiaries is permitted under applicable law. All
such Additional Security and Guaranty Documents shall be reasonably satisfactory
in form and substance to the Administrative Agent and, in the case of security
documentation, shall constitute valid and enforceable perfected security
interests, hypothecations and mortgages superior to and prior to the rights of
all third Persons and subject to no other Liens except for Permitted Liens. The
Additional Security and Guaranty Documents or instruments related thereto shall
have been duly recorded or filed in such manner and in such places as are
required by law to give the Administrative Agent and/or the Collateral Agent the
Liens, rights, powers and privileges purported to be created thereby and all
taxes, fees and other charges payable in connection therewith shall have been
paid in full. Notwithstanding the foregoing, this Section 8.11(b) shall not
apply to (and Holdings and its Subsidiaries shall not be required to grant a
mortgage in) any Real Property the fair market value of which (as determined in
good faith by senior management of RPP USA) is less than $5,000,000.
(c) Within 120 days after the date, if any, on which a Foreign Credit
Party obtains "Building and Planting Rights" with respect to the Real Property
designated on Part B of Schedule IV as a "Foreign Lease Subject to an Assignment
For Security Purposes," the respective Foreign Credit Party shall have executed
and delivered a first Mortgage and/or such other security documentation as
foreign counsel to the Agents may suggest to create a valid and enforceable Lien
on such "Building and Planting Rights" (and on any buildings, fixtures and
improvements the subject of such "Building and Planting Rights") free and clear
of all defects and encumbrances except Permitted Encumbrances related thereto,
and each such Foreign Credit Party shall have taken all such other actions under
the law of The Netherlands as shall have been reasonably requested by the
Administrative Agent and are customary in connection with the granting of
security interests in "Building and Planting Rights" in The Netherlands for
financings of this type. All actions required pursuant to this clause (c) shall
be taken to the reasonable satisfaction of the Collateral Agent.
(d) Within 120 days following the Initial Borrowing Date (or such
later date as may be acceptable to the Administrative Agent), RPP USA shall have
delivered to the Administrative Agent an appraisal of each of the US Mortgaged
Properties, each of which appraisals shall be in form and based on methodology
reasonably satisfactory to the Administrative Agent and shall be prepared by an
independent appraiser or appraisers selected by RPP USA and reasonably
acceptable to the Administrative Agent.
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(e) On the earliest of (i) 180 days following the Initial Borrowing
Date, (ii) 30 days following the delivery of the appraisals described in
preceding clause (d) and (iii) 30 days following the Administrative Agent's
request therefore, RPP USA shall have delivered to the Administrative Agent
Mortgage Policies on the Mortgages for the US Mortgaged Properties issued by a
title insurer reasonably satisfactory to the Collateral Agent and in amounts
reasonably satisfactory to the Collateral Agent and assuring the Collateral
Agent that each of the Mortgages on such US Mortgaged Properties is a valid and
enforceable first priority mortgage lien on such US Mortgaged Properties, free
and clear of all defects and encumbrances except Permitted Encumbrances, and
such Mortgage Policies shall otherwise be in form and substance reasonably
satisfactory to the Collateral Agent and shall include, as appropriate, an
endorsement for future advances under this Agreement and the Notes and for any
other matter that the Collateral Agent in its discretion may reasonably request,
shall not include an exception for mechanics' liens, and shall provide for
affirmative insurance and such reinsurance as the Collateral Agent in its
discretion may reasonably request.
(f) Holdings will, and will cause each of its Subsidiaries to, at
the expense of Holdings and the Borrowers, make, execute, endorse, acknowledge,
file and/or deliver to the Collateral Agent from time to time such vouchers,
invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, real
property surveys, reports and other assurances or instruments and take such
further steps relating to the Collateral covered by any of the Security
Documents as the Collateral Agent may reasonably require. Furthermore, each of
Holdings and each Borrower shall cause to be delivered to the Collateral Agent
such opinions of counsel, title insurance and other related documents as may be
reasonably requested by the Collateral Agent to assure itself that this Section
8.11 has been complied with.
(g) Holdings and each Borrower agrees that each action required
above by this Section 8.11 (other than clauses (c), (d) and (e) of this Section
8.11) shall be completed as soon as possible, but in no event later than 90 days
(or such later date as may be acceptable to the Administrative Agent) after such
action is either requested to be taken by the Administrative Agent, the
Collateral Agent or the Required Lenders or required to be taken by Holdings and
its Subsidiaries pursuant to the terms of this Section 8.11, provided that in no
--------
event will Holdings or any of its Subsidiaries be required to take any action,
other than using its commercially reasonable efforts, to obtain consents from
third parties with respect to its compliance with this Section 8.11 (including
clause (c) hereof).
8.12 Foreign Subsidiaries Security. If following a change in the
-----------------------------
relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, counsel for
Holdings reasonably acceptable to the Administrative Agent does not within 45
days after a request from the Administrative Agent or the Required Lenders
deliver evidence, in form and substance mutually satisfactory to the
Administrative Agent and Holdings, with respect to any Foreign Subsidiary (and
in the case of clause (i) below, any Foreign Unrestricted Subsidiary) of
Holdings which has not already had all of its stock pledged pursuant to a Pledge
Agreement that (i) a pledge of more than 66-2/3% of the total combined voting
power of all classes of capital stock of such Foreign Subsidiary (or Foreign
Unrestricted Subsidiary) entitled to vote to secure the Obligations of the US
Borrowers, (ii) the entering into by such
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Foreign Subsidiary of a security agreement in substantially the form of the US
Security Agreement to secure the Obligations of the US Borrowers and of such
Foreign Subsidiary under the US Subsidiaries Guaranty, (iii) the entering into
by such Foreign Subsidiary of a pledge agreement in substantially the form of a
US Pledge Agreement to secure the Obligations of the US Borrowers and of such
Foreign Subsidiary under the US Subsidiaries Guaranty and (iv) the entering into
by such Foreign Subsidiary of a guaranty in substantially the form of the US
Subsidiaries Guaranty guaranteeing the Obligations of the US Borrowers, in any
such case could reasonably be expected to cause (I) the undistributed earnings
of such Foreign Subsidiary (or Foreign Unrestricted Subsidiary) as determined
for Federal income tax purposes to be treated as a deemed dividend to such
Foreign Subsidiary's (or such Foreign Unrestricted Subsidiary's) United States
parent for Federal income tax purposes or (II) other material adverse Federal
income tax consequences to the Credit Parties, then in the case of a failure to
deliver the evidence described in clause (i) above, that portion of such Foreign
Subsidiary's (or such Foreign Unrestricted Subsidiary's) outstanding capital
stock so issued by such Foreign Subsidiary (or such Foreign Unrestricted
Subsidiary), in each case not theretofore pledged pursuant to the US Pledge
Agreement to secure the Obligations of the US Borrowers and of such Foreign
Subsidiary under the US Subsidiaries Guaranty shall be pledged to the Collateral
Agent for the benefit of the Secured Creditors pursuant to the US Pledge
Agreement (or another pledge agreement in substantially similar form, if
needed), and in the case of a failure to deliver the evidence described in
clause (ii) or (iii) above, such Foreign Subsidiary (to the extent same is a
Wholly-Owned Foreign Subsidiary) shall execute and deliver the US Security
Agreement (or another security agreement in substantially similar form, if
needed) and the US Pledge Agreement (or another pledge agreement in
substantially similar form, if needed), as the case may be, granting to the
Collateral Agent for the benefit of the Secured Creditors a security interest in
all of such Foreign Subsidiary's assets or the capital stock and promissory
notes owned by such Foreign Subsidiary, as the case may be, and securing the
Obligations of the US Borrowers under the Credit Documents and under any
Interest Rate Protection Agreement or Other Hedging Agreement and, in the event
the US Subsidiaries Guaranty shall have been executed by such Foreign
Subsidiary, the obligations of such Foreign Subsidiary thereunder, and in the
case of a failure to deliver the evidence described in clause (iv) above, such
Foreign Subsidiary (to the extent same is a Wholly-Owned Foreign Subsidiary)
shall execute and deliver the US Subsidiaries Guaranty (or another guaranty in
substantially similar form, if needed), guaranteeing the obligations of the US
Borrowers under the Credit Documents and under any Interest Rate Protection
Agreement or Other Hedging Agreement, in each case to the extent that the
entering into of the US Security Agreement, a US Pledge Agreement or the US
Subsidiaries Guaranty (or substantially similar document) is permitted by the
laws of the respective foreign jurisdiction and with all documents delivered
pursuant to this Section 8.12 to be in form and substance reasonably
satisfactory to the Administrative Agent and/or the Collateral Agent.
8.13 Use of Proceeds. All proceeds of the Loans shall be used as
---------------
provided in Section 7.05.
8.14 Permitted Acquisitions. (a) Subject to the provisions of this
----------------------
Section 8.14 and the requirements contained in the definition of Permitted
Acquisition, RPP USA and its Wholly-Owned Subsidiaries may from time to time
effect Permitted Acquisitions, so long as (in each case except to the extent the
Required Lenders otherwise specifically agree in writing in the
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case of a specific Permitted Acquisition): (i) no Default or Event of Default
shall be in existence at the time of the consummation of the proposed Permitted
Acquisition or immediately after giving effect thereto; (ii) RPP USA shall have
given the Administrative Agent and the Lenders at least 5 Business Days' prior
written notice of any Permitted Acquisition; (iii) calculations are made by RPP
USA of compliance with the covenants contained in Sections 9.09 and 9.10 (in
each case, giving effect to the last sentence appearing therein) for the
relevant Calculation Period, on a Pro Forma Basis as if the respective Permitted
--- -----
Acquisition (as well as all other Permitted Acquisitions theretofore consummated
after the first day of such Calculation Period) had occurred on the first day of
such Calculation Period, and such calculations shall show that such financial
covenants would have been complied with if the Permitted Acquisition had
occurred on the first day of such Calculation Period (for this purpose, (x) if
the first day of the respective Calculation Period occurs prior to the Initial
Borrowing Date, calculated as if the covenants contained in said Sections 9.09
and 9.10 (in each case, giving effect to the last sentence appearing therein)
had been applicable from the first day of the Calculation Period and (y) using
the covenant levels contained in such Sections 9.09 and 9.10 for the Test Period
ending March 31, 2001 in connection with a Permitted Acquisition consummated
prior to March 31, 2001); (iv) based on good faith projections prepared by RPP
USA for the period from the date of the consummation of the Permitted
Acquisition to the date which is one year thereafter, the level of financial
performance measured by the covenants set forth in Sections 9.09 and 9.10 (in
each case, giving effect to the last sentence appearing therein) shall be better
than or equal to such level as would be required to provide that no Default or
Event of Default would exist under the financial covenants contained in Sections
9.09 and 9.10 ((i) in each case, giving effect to the last sentence appearing
therein and (ii) using the covenant levels contained in such Sections 9.09 and
9.10 for the Test Period ending March 31, 2001 for any portion of such period
prior to March 31, 2001) through the date which is one year from the date of the
consummation of the respective Permitted Acquisition; (v) calculations are made
by RPP USA demonstrating compliance with an Adjusted Senior Leverage Ratio not
to exceed (x) 3.50:1.00 in the case of any Permitted Acquisition consummated on
or prior to June 30, 2002 and (y) 3.25:1.00 in the case of any Permitted
Acquisition consummated thereafter, in each case on the last day of the relevant
Calculation Period, on a Pro Forma Basis as if the respective Permitted
--- -----
Acquisition (as well as all other Permitted Acquisitions theretofore consummated
after the first day of such Calculation Period) had occurred on the first day of
such Calculation Period; (vi) the Maximum Permitted Consideration payable in
connection with the proposed Permitted Acquisition does not exceed $50,000,000;
(vii) all representations and warranties contained herein and in the other
Credit Documents shall be true and correct in all material respects with the
same effect as though such representations and warranties had been made on and
as of the date of such Permitted Acquisition (both before and after giving
effect thereto), unless stated to relate to a specific earlier date, in which
case such representations and warranties shall be true and correct in all
material respects as of such earlier date; (viii) RPP USA provides to the
Administrative Agent and the Lenders as soon as available but not later than 5
Business Days after the execution thereof, a copy of any executed purchase
agreement or similar agreement with respect to such Permitted Acquisition; (ix)
after giving effect to such Permitted Acquisition and the payment of all post-
closing purchase price adjustments required (in the good faith determination of
RPP USA) in connection with such Permitted Acquisition (and all other Permitted
Acquisitions for which such purchase price adjustments may be required to be
made) and all capital expenditures
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(and the financing thereof) reasonably anticipated by RPP USA to be made in the
business acquired pursuant to such Permitted Acquisition within the 90-day
period (such period for any Permitted Acquisition, a "Post-Closing Period")
following such Permitted Acquisition (and in the businesses acquired pursuant to
all other Permitted Acquisitions with Post-Closing Periods ended during the
Post-Closing Period of such Permitted Acquisition), the Total Unutilized
Revolving Loan Commitment shall equal or exceed $25,000,000; and (x) RPP USA
shall have delivered to the Administrative Agent an officer's certificate
executed by an Authorized Officer of RPP USA, certifying to the best of such
officer's knowledge, compliance with the requirements of preceding clauses (i)
through (ix), inclusive, and containing the calculations required by the
preceding clauses (iii), (iv), (v), (vi) and (ix); provided, however, that so
-------- -------
long as (x) the Maximum Permitted Consideration payable in connection with the
proposed Permitted Acquisition does not exceed $7,500,000 and (y) the Maximum
Permitted Consideration paid in connection with the proposed Permitted
Acquisition, when combined with the Maximum Permitted Consideration paid in
connection with all other Permitted Acquisitions consummated in the same fiscal
quarter as such proposed Permitted Acquisition, does not exceed $15,000,000, RPP
USA shall not be required to comply with clauses (ii) and (viii) above in
connection with such Permitted Acquisition and the officer's certificate
otherwise required to be delivered pursuant to clause (x) above shall instead be
delivered to the Administrative Agent within 45 days following the end of the
fiscal quarter in which such Permitted Acquisition is consummated.
(b) At the time of each Permitted Acquisition involving the creation
or acquisition of a Subsidiary, or the acquisition of capital stock or other
equity interest of any Person, the capital stock or other equity interests
thereof created or acquired in connection with such Permitted Acquisition shall
be pledged for the benefit of the Secured Creditors pursuant to the appropriate
Pledge Agreement in accordance with the requirements of Section 9.15.
(c) Holdings and each Borrower shall cause each Subsidiary which is
formed to effect, or is acquired pursuant to, a Permitted Acquisition to comply
with, and to execute and deliver, all of the documentation required by, Sections
8.11 and 9.15, to the reasonable satisfaction of the Administrative Agent.
(d) The consummation of each Permitted Acquisition shall be deemed to
be a representation and warranty by Holdings and each Borrower that the
certifications by RPP USA (or by one or more of its Authorized Officers)
pursuant to Section 8.14(a) are true and correct and that all conditions thereto
have been satisfied and that same is permitted in accordance with the terms of
this Agreement, which representation and warranty shall be deemed to be a
representation and warranty for all purposes hereunder, including, without
limitation, Sections 6 and 10.
8.15 Performance of Obligations. Holdings will, and will cause each
--------------------------
of its Subsidiaries to, perform all of its obligations under the terms of each
mortgage, deed of trust, indenture, loan agreement or credit agreement and each
other material agreement, contract or instrument by which it is bound, except
such non-performances as could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
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8.16 Maintenance of Company Separateness. Holdings will, and will
-----------------------------------
cause each of its Subsidiaries and Unrestricted Subsidiaries to, satisfy
customary Company formalities, including, as applicable, the holding of regular
board of directors' and shareholders' meetings or action by directors or
shareholders without a meeting and the maintenance of Company offices and
records. Neither Holdings nor any of its Subsidiaries shall make any payment to
a creditor of any Unrestricted Subsidiary in respect of any liability of any
Unrestricted Subsidiary, and no bank account of any Unrestricted Subsidiary
shall be commingled with any bank account of Holdings or any of its
Subsidiaries. Any financial statements distributed to any creditors of any
Unrestricted Subsidiary shall clearly establish or indicate the Company
separateness of such Unrestricted Subsidiary from Holdings and its Subsidiaries.
Finally, neither Holdings nor any of its Subsidiaries shall take any action, or
conduct its affairs in a manner, which is likely to result in the Company
existence of Holdings or any of its Subsidiaries or Unrestricted Subsidiaries
being ignored, or in the assets and liabilities of Holdings or any of its
Subsidiaries being substantively consolidated with those of any other such
Person or any Unrestricted Subsidiary in a bankruptcy, reorganization or other
insolvency proceeding.
8.17 Contributions. (a) Holdings will, upon its receipt thereof,
-------------
contribute as an equity contribution to the capital of RPP USA, any cash
proceeds received by Holdings from any asset sale, any incurrence of
Indebtedness, any Recovery Event, any sale or issuance of its equity, any cash
capital contributions or any tax refunds.
(b) The Borrowers will use the proceeds of all equity contributions
received by RPP USA from Holdings as provided in the relevant clause of Section
4.02 to the extent required to be so applied.
8.18 Interest Rate Protection. No later than 90 days following the
------------------------
Initial Borrowing Date, the Borrowers will, in consultation with the
Administrative Agent, enter into (and for a period of at least three years
thereafter maintain) one or more Interest Rate Protection Agreements protecting
the Borrowers from upward fluctuations in interest rates with respect to at
least 50% of the aggregate principal amount of all Term Loans then outstanding.
8.19 Holdings PIK Junior Subordinated Notes. Holdings will pay all
--------------------------------------
interest on the Holdings PIK Junior Subordinated Notes solely through the
issuance of additional Holdings PIK Junior Subordinated Notes rather than in
cash.
SECTION 9. Negative Covenants. Each of Holdings and each Borrower
------------------
hereby covenants and agrees that as of the Effective Date and thereafter for so
long as this Agreement is in effect and until the Total Commitment has
terminated, no Letters of Credit or Notes are outstanding and the Loans,
together with interest, Fees and all other Obligations (other than any
indemnities described in Section 15.13 which are not then due and payable)
incurred hereunder, are paid in full:
9.01 Business. (a) Holdings will not, and will not permit any of
--------
its Subsidiaries to, engage directly or indirectly in any business other than a
Permitted Business.
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(b) Holdings will not permit any Unrestricted Subsidiary to engage
(directly or indirectly) in any business other than a Permitted Business.
(c) Notwithstanding the foregoing or anything else in this Agreement
to the contrary, Holdings will not engage in any business or own any significant
assets or have any material liabilities other than (i) its ownership of the
equity interests of RPP USA and (ii) those liabilities which it is responsible
for under this Agreement and the other Documents to which it is a party,
provided that Holdings may engage in those activities that are incidental to (x)
- --------
the maintenance of its existence in compliance with applicable law, (y) legal,
tax and accounting matters in connection with any of the foregoing activities
and (z) transactions expressly permitted under Section 9.12(iv).
(d) Notwithstanding the foregoing or anything else in this Agreement
to contrary, US Finance Corp. will not engage in any business (other than
activities incidental to its corporate existence) or own any significant assets
or have any material liabilities other than those liabilities for which it is
responsible under this Agreement and the other Documents to which it is a party.
9.02 Consolidation; Merger; Sale or Purchase of Assets; etc. Holdings
-------------------------------------------------------
will not, nor will Holdings permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any transaction of merger,
amalgamation or consolidation, or convey, sell, lease or otherwise dispose of
all or any part of its property or assets (other than inventory in the ordinary
course of business), or enter into any sale-leaseback transactions, or purchase
or otherwise acquire (in one or a series of related transactions) any part of
the property or assets (other than purchases or other acquisitions of inventory,
materials, general intangibles, equipment, goods and services in the ordinary
course of business) of any Person or agree to do any of the foregoing at any
future time, except that the following shall be permitted:
(a) RPP USA and its Subsidiaries may, as lessee, enter into operating
leases in the ordinary course of business with respect to real, personal,
movable or immovable property;
(b) Capital Expenditures by RPP USA and its Subsidiaries to the
extent not in violation of Section 9.11;
(c) Investments permitted pursuant to Section 9.05 and the
disposition or liquidation of Cash Equivalents in the ordinary course of
business;
(d) RPP USA and any of its Subsidiaries may sell or otherwise dispose
of assets (excluding capital stock of, or other equity interests in,
Subsidiaries, Joint Ventures and Unrestricted Subsidiaries) which, in the
reasonable opinion of such Person, are obsolete, uneconomic or no longer useful
or desirable in the conduct of such Person's business, provided that, except
--------
with respect to asset dispositions or transfers arising out of, or in connection
with, the events described in clauses (i) and (ii) of the definition of Recovery
Event, (w) each such sale or disposition shall be for an amount at least equal
to the fair market value thereof (as determined
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good faith by senior management of Holdings) is) equal to or greater than
$3,000,000, such sale or disposition (I) results in consideration at least 75%
of which (taking into account the amount of cash, the principal amount of any
promissory notes and the fair market value, as determined by Holdings in good
faith, of any other consideration) shall be in the form of cash, provided
--------
however, that, notwithstanding the foregoing, up to $10,000,000 of such
- ------
consideration in the aggregate in any fiscal year of RPP USA may be in the form
of (i) assets to be owned by RPP USA or any of its Wholly-Owned Subsidiaries and
used in connection with a Permitted Business and/or (ii) 100% of the capital
stock of any entity that owns assets used in a Permitted Business, which entity
shall, as a result of such acquisition, become a Wholly-Owned Subsidiary of RPP
USA, or (II) in the case of an asset or assets subject to Capitalized Lease
Obligations, results in the assumption of all of the Capitalized Lease
Obligations or other purchase money obligations of RPP USA or such Subsidiary in
respect of such asset by the purchaser thereof, (y) the aggregate Net Sale
Proceeds (including for this purpose the fair market value of all non-cash
proceeds received as a result of an Asset Sale) from all assets sold or
otherwise disposed of pursuant to this clause (d), when added to the aggregate
amount of all Capitalized Lease Obligations and all other purchase money
obligations assigned in connection with all assets sold or otherwise disposed of
pursuant to this clause (d), shall not exceed $20,000,000 in the aggregate in
any fiscal year of RPP USA, and (z) in the case of any sale or disposition of an
asset constituting an Asset Sale, the Net Sale Proceeds therefrom are either
applied to repay Term Loans and/or reduce the Total Revolving Loan Commitment as
provided in Section 4.02(d) or reinvested in replacement assets or retained to
the extent permitted by Section 4.02(d);
(e) any Subsidiary of RPP USA may convey, lease, license, sell or
otherwise transfer all or any part of its business, properties and assets to RPP
USA or to any Subsidiary Guarantor which is a Wholly-Owned Domestic Subsidiary,
so long as any security interests granted to the Collateral Agent for the
benefit of the Secured Creditors pursuant to the applicable Security Documents
in the assets so transferred shall remain in full force and effect and perfected
(to at least the same extent as in effect immediately prior to such transfer)
and all actions required to maintain said perfected status have been taken;
(f) any Foreign Subsidiary of RPP USA may convey, lease, license, sell
or otherwise transfer all or any part of its business, properties and assets to
a Wholly-Owned Foreign Subsidiary of RPP USA, so long as (i) any security
interests granted to the Collateral Agent for the benefit of the Secured
Creditors pursuant to the applicable Security Documents in the assets so
transferred shall remain in full force and perfected (to at least the same
extent as in effect immediately prior to such transfer) and all actions required
to maintain said perfected status have been taken and (ii) the aggregate fair
market value (as determined in good faith by Holdings) of all such assets so
transferred to Wholly-Owned Foreign Subsidiaries that are not Foreign Credit
Parties (and/or to Foreign Credit Parties that are not party to a Security
Document granting to the Collateral Agent security interests in the type of
assets so transferred) shall not exceed $10,000,000;
(g) any Subsidiary of RPP USA may merge with and into, or be dissolved
or liquidated into, RPP USA or any Subsidiary Guarantor which is a Wholly-Owned
Domestic Subsidiary, so long as (i) RPP USA or such Subsidiary Guarantor is the
surviving corporation of any such merger, dissolution or liquidation and (ii)
any security interests granted to the Collateral
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Agent for the benefit of the Secured Creditors pursuant to the applicable
Security Documents in the assets of such Subsidiary shall remain in full force
and effect and perfected (to at least the same extent as in effect immediately
prior to such merger, dissolution or liquidation) and all actions required to
maintain said perfected status have been taken;
(h) any Foreign Subsidiary of RPP USA may merge with and into, or be
dissolved or liquidated into, the Dutch Borrower or any other Wholly-Owned
Foreign Subsidiary of RPP USA, so long as (i) in the case of any such merger,
dissolution or liquidation involving the Dutch Borrower, the Dutch Borrower is
the surviving corporation thereof, (ii) in the case of any such merger,
dissolution or liquidation involving another Foreign Credit Party, such Foreign
Credit Party is the surviving corporation thereof, (iii) in all other cases,
such Wholly-Owned Foreign Subsidiary is the surviving corporation of any such
merger, dissolution or liquidation, and (iv) any security interests granted to
the Collateral Agent for the benefit of the Secured Creditors pursuant to the
applicable Security Documents in the assets of such Foreign Subsidiary shall
remain in full force and effect and perfected (to at least the same extent as in
effect immediately prior to such merger, dissolution or liquidation) and all
actions required to maintain said perfected status have been taken;
(i) RPP USA and its Wholly-Owned Subsidiaries shall be permitted to
make Permitted Acquisitions, so long as such Permitted Acquisitions are effected
in accordance with the requirements of Section 8.14;
(j) the Recapitalization shall be permitted to the extent consummated
in accordance with the relevant requirements of Section 5.08;
(k) RPP USA and its Subsidiaries may, in the ordinary course of
business, license, as licensor or licensee, patents, trademarks, copyrights and
know-how to or from third Persons or one another, so long as any such license by
RPP USA or any such Subsidiary in its capacity as licensor is permitted to be
assigned pursuant to the relevant Security Agreement (to the extent that a
security interest in such patents, trademarks, copyrights and know-how is
granted thereunder) and does not otherwise prohibit the granting of a Lien by
RPP USA or any such Subsidiary pursuant to such Security Agreement in the
intellectual property covered by such license;
(l) RPP USA and its Domestic Subsidiaries may transfer assets (other
than cash) to Wholly-Owned Foreign Subsidiaries, so long as (x) no Default or
Event of Default exists as the time of the respective transfer and (y) the
aggregate fair market value of all such assets so transferred (determined in
good faith by senior management of Holdings) to all such Wholly- Owned Foreign
Subsidiaries does not exceed $15,000,000;
(m) RPP USA and any of its Subsidiaries may sell or otherwise dispose
of the capital stock of, or other equity interests in, any of their respective
Subsidiaries (other than US Finance Corp., the Dutch Parent (or any direct or
indirect parent company thereof) or the Dutch Borrower, the equity interests of
which may not be sold or otherwise disposed of pursuant to this subsection (m)),
Joint Ventures (other than the Existing Japanese Joint Venture) and Unrestricted
Subsidiaries, provided that (v) in the case of a sale or other disposition of
--------
the capital stock or
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other equity interests of any Wholly-Owned Subsidiary of RPP USA, 100% of the
capital stock or other equity interests of such Subsidiary shall be so sold or
disposed of, (w) each such sale or disposition shall be for an amount at least
equal to the fair market value thereof (as determined in good faith by senior
management of Holdings), (x) each such sale results in consideration at least
75% of which (taking into account the amount of cash, the principal amount of
any promissory notes and the fair market value, as determined by Holdings in
good faith, of any other consideration) shall be in the form of cash, (y) the
aggregate Net Sale Proceeds of all assets sold or otherwise disposed of pursuant
to this clause (m) shall not exceed $40,000,000 in the aggregate and (z) the Net
Sale Proceeds therefrom are applied to repay Term Loans and/or reduce the Total
Revolving Loan Commitment as provided in Section 4.02(d) and/or reinvested in
replacement assets or retained to the extent permitted by Section 4.02(d);
(n) the Dutch Parent may sell or otherwise dispose of all or any part
of its equity interest in the Existing Japanese Joint Venture, provided that (x)
each such sale or disposition shall be for an amount at least equal to the fair
market value thereof (as determined in good faith by senior management of
Holdings) and (y) the Net Sale Proceeds therefrom are applied to repay Term
Loans and/or reduce the Total Revolving Loan Commitment as provided in Section
4.02(d) and/or reinvested in replacement assets or retained to the extent
permitted by Section 4.02(d);
(o) RPP USA and any of its Subsidiaries may enter into agreements to
sell excess capacity at one or more of its facilities, provided that any such
--------
agreements do not interfere in any material respect with the operations of RPP
USA or any of its Subsidiaries or otherwise leave RPP USA or any its
Subsidiaries with insufficient capacity to meet its own ongoing (and reasonably
anticipated) requirements;
(p) RPP USA or any of its Subsidiaries may effect Permitted Sale-
Leaseback Transactions in accordance with the definition thereof, provided that
--------
(x) the aggregate amount of all proceeds received by RPP USA and its
Subsidiaries from all Permitted Sale-Leaseback Transactions consummated on and
after the Initial Borrowing Date shall not exceed $25,000,000 and (y) the Net
Sale Proceeds from all such Permitted Sale-Leaseback Transactions are applied to
repay Term Loans and/or reduce the Total Revolving Loan Commitment as provided
in Section 4.02(d) and/or reinvested in replacement assets or retained to the
extent permitted by Section 4.02(d); and
(q) RPP USA and any of its Subsidiaries may enter into agreements to
effect acquisitions and dispositions of stock or assets, so long as the
respective transaction is permitted pursuant to the provisions of this Section
9.02; provided that RPP USA and any of its Subsidiaries may enter into
--------
agreements to effect acquisitions and dispositions of capital stock or assets in
transactions not permitted by the provisions of this Section 9.02 at the time
the respective agreement is entered into, so long as in the case of each such
agreement, such agreement shall be expressly conditioned upon obtaining the
requisite consent of the Required Lenders under this Agreement or the repayment
of all Obligations hereunder as a condition precedent to the consummation of the
respective transaction and, if for any reason the transaction is not consummated
because of a failure to obtain such consent, the aggregate liability of Holdings
and any of its Subsidiaries under any such agreement shall not exceed
$7,500,000.
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To the extent the Required Lenders waive the provisions of this Section 9.02
with respect to the sale or other disposition of any Collateral, or any
Collateral is sold or otherwise disposed of as permitted by this Section 9.02,
such Collateral (unless transferred to RPP USA or a Subsidiary thereof) shall
(except as otherwise provided above) be sold or otherwise disposed of free and
clear of the Liens created by the Security Documents and the Administrative
Agent shall take such actions (including, without limitation, directing the
Collateral Agent to take such actions) as are appropriate in connection
therewith.
9.03 Liens. Holdings will not, and will not permit any of its
-----
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets of any kind (real or personal, tangible or
intangible, movable or immovable) of Holdings or any of its Subsidiaries,
whether now owned or hereafter acquired, or sell any such property or assets
subject to an understanding or agreement, contingent or otherwise, to repurchase
such property or assets (including sales of accounts receivable or notes with
recourse to Holdings or any of its Subsidiaries) or assign any right to receive
income, except for the following (collectively, the "Permitted Liens"):
(a) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due and payable or Liens for taxes, assessments or governmental
charges or levies being contested in good faith and by appropriate proceedings
for which adequate reserves have been established (x) in the case of Domestic
Subsidiaries of Holdings, in accordance with GAAP and (y) in the case of Foreign
Subsidiaries of Holdings, in accordance with generally accepted accounting
principles in effect from time to time in the respective jurisdiction of such
Foreign Subsidiary;
(b) Liens in respect of property or assets of RPP USA or any of its
Subsidiaries imposed by law which were incurred in the ordinary course of
business and which have not arisen to secure Indebtedness for borrowed money,
such as carriers', materialmen's, warehousemen's and mechanics' Liens, statutory
and common law landlord's Liens, and other similar Liens arising in the ordinary
course of business, and which either (x) do not in the aggregate materially
detract from the value of such property or assets or materially impair the use
thereof in the operation of the business of Holdings or any of its Subsidiaries
or (y) are being contested in good faith by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale of the property
or asset subject to such Lien;
(c) Liens created by or pursuant to this Agreement and the Security
Documents, provided, however, in no event shall the holders of the Indebtedness
-------- -------
under the Overdraft Line have the right to receive proceeds in excess of
$15,000,000 in the aggregate (plus (x) any accrued and unpaid interest in
respect of Indebtedness incurred by RPP USA and its Subsidiaries under the
Overdraft Line and (y) any accrued and unpaid fees and expenses owing by RPP USA
and its Subsidiaries under the Overdraft Line) from the enforcement of any
remedies available to the Secured Creditors under all of the Security Documents;
(d) Liens in existence on the Initial Borrowing Date which are listed,
and the property subject thereto described, in Schedule IX, without giving
effect to any extensions or renewals thereof;
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(e) Liens arising from judgments, decrees, awards or attachments in
circumstances not constituting an Event of Default under Section 10.09, provided
--------
that the aggregate amount of cash and property (determined on a fair market
value basis) of Holdings and its Subsidiaries deposited or delivered to secure
the respective judgment or decree or subject to attachment shall not exceed
$10,000,000 at any time;
(f) Liens (other than any Lien imposed by ERISA) (x) incurred or
deposits made in the ordinary course of business of RPP USA and any of its
Subsidiaries in connection with workers' compensation, unemployment insurance
and other types of social security, (y) to secure the performance by RPP USA and
any of its Subsidiaries of tenders, statutory obligations (other than excise
taxes), surety, stay, customs and appeal bonds, statutory bonds, bids, leases,
government contracts, trade contracts, performance and return of money bonds and
other similar obligations (exclusive of obligations for the payment of borrowed
money) to the extent incurred in the ordinary course of business or (z) to
secure the performance by RPP USA and any of its Subsidiaries of leases of Real
Property, to the extent incurred or made in the ordinary course of business
consistent with past practices, provided that the aggregate amount of deposits
--------
at any time pursuant to sub-clauses (y) and (z) above shall not exceed
$20,000,000 in the aggregate;
(g) (x) licenses, sublicenses, leases or subleases granted to third
Persons in the ordinary course of business not interfering in any material
respect with the business of Holdings or any of its Subsidiaries and (y) any
interest or title of a licensor, lessor or sublessor under any lease permitted
by this Agreement;
(h) easements, rights-of-way, restrictions, minor defects or
irregularities in title, encroachments and other similar charges or
encumbrances, in each case not securing Indebtedness and not interfering in any
material respect with the ordinary conduct of the business of RPP USA and of its
Subsidiaries taken as a whole;
(i) Liens arising from precautionary UCC financing statements
regarding operating leases;
(j) Liens created pursuant to Capital Leases permitted pursuant to
Section 9.04(d), provided that (x) such Liens only serve to secure the payment
--------
of Indebtedness arising under such Capitalized Lease Obligation (and other
Indebtedness permitted by Section 9.04(d) and incurred from the same Person as
such Indebtedness) and (y) the Lien encumbering the asset giving rise to the
Capitalized Lease Obligation does not encumber any asset of Holdings or any
other asset of RPP USA or any of its Subsidiaries (other than other assets
subject to Capitalized Lease Obligations and/or Indebtedness incurred pursuant
to Section 9.04(d), in each case owing to the same Person as such Capitalized
Lease Obligation);
(k) Permitted Encumbrances;
(l) Liens arising pursuant to purchase money mortgages or security
interests securing Indebtedness representing the purchase price (or financing of
the purchase price within 90 days after the respective purchase) of assets
acquired after the Initial Borrowing Date, provided that (i) any such Liens
--------
attach only to the assets so purchased, upgrades thereon and, if
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the asset so purchased is an upgrade, the original asset itself (and such other
assets financed by the same financing source), (ii) the Indebtedness (other than
Indebtedness incurred from the same financing source to purchase other assets
and excluding Indebtedness representing obligations to pay installation and
delivery charges for the property so purchased) secured by any such Lien does
not exceed 100%, nor is less than 80%, of the lesser of the fair market value or
the purchase price of the property being purchased at the time of the incurrence
of such Indebtedness and (iii) the Indebtedness secured thereby is permitted to
be incurred pursuant to Section 9.04(d);
(m) Liens on property or assets acquired pursuant to a Permitted
Acquisition, or on property or assets of a Subsidiary of RPP USA in existence at
the time such Subsidiary is acquired pursuant to a Permitted Acquisition,
provided that (i) any Indebtedness that is secured by such Liens is permitted to
- --------
exist under Section 9.04(d), and (ii) such Liens are not incurred in connection
with, or in contemplation or anticipation of, such Permitted Acquisition and do
not attach to any asset of Holdings or any other asset of RPP USA or any of its
Subsidiaries;
(n) Liens arising out of consignment or similar arrangements for the
sale of goods entered into by RPP USA or any of its Subsidiaries in the ordinary
course of business;
(o) Liens securing insurance premium financing arrangements, provided
that such Liens are limited to the applicable insurance contracts;
(p) Liens (x) incurred in connection with the purchase or shipping of
goods or assets (or the related assets and proceeds thereof), which Liens are in
favor of the seller or shipper of such goods or assets and only attach to such
goods or assets, and (y) in favor of customs and revenue authorities arising as
a matter of law to secure payment of customs duties in connection with the
importation of goods; and
(q) additional Liens incurred by RPP USA and any of its Subsidiaries,
so long as the value of the property subject to such Liens, and the Indebtedness
and other obligations secured thereby, do not exceed $10,000,000.
9.04 Indebtedness. Holdings will not, and will not permit any of its
------------
Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(b) Existing Indebtedness outstanding on the Initial Borrowing Date
and listed on Schedule III (as reduced by any repayments thereof before, on or
after the Initial Borrowing Date), without giving effect to any subsequent
extension, renewal or refinancing thereof;
(c) Indebtedness under (i) Interest Rate Protection Agreements entered
into to protect any Borrower against fluctuations in interest rates in respect
of Indebtedness otherwise permitted to be incurred by such Borrower under this
Agreement or (ii) Other Hedging Agreements so long as management of such Person
has determined that the entering into of any such Other Hedging Agreement is a
bona fide hedging activity (and is not for speculative purposes) and is in the
ordinary course of business and consistent with its past practices;
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(d) (x) Indebtedness of a Subsidiary acquired pursuant to a Permitted
Acquisition (or Indebtedness assumed by RPP USA or any of its Wholly-Owned
Subsidiaries pursuant to a Permitted Acquisition as a result of a merger or
consolidation or the acquisition of an asset securing such Indebtedness) (the
"Permitted Acquired Debt"), so long as (i) such Indebtedness was not incurred in
connection with, or in anticipation or contemplation of, such Permitted
Acquisition and (ii) such Indebtedness does not constitute debt for borrowed
money (except to the extent such Indebtedness cannot be repaid in accordance
with its terms at the time of its assumption pursuant to such Permitted
Acquisition (without the payment of a penalty or premium) and the aggregate
principal amount of all such Indebtedness for borrowed money permitted pursuant
to this parenthetical does not exceed $30,000,000), it being understood and
agreed that Capitalized Lease Obligations and purchase money Indebtedness shall
not constitute debt for borrowed money for purposes of this clause (ii) and (y)
Capitalized Lease Obligations and Indebtedness of RPP USA and any of its
Subsidiaries representing purchase money Indebtedness secured by Liens permitted
pursuant to Section 9.03(l), provided that the sum of (I) the aggregate
--------
principal amount of all Permitted Acquired Debt at any time outstanding plus
----
(II) the aggregate amount of Capitalized Lease Obligations incurred on and after
the Initial Borrowing Date and outstanding at any time (including Indebtedness
evidenced by Capitalized Lease Obligations arising from Permitted Sale-Leaseback
Transactions) plus (III) the aggregate principal amount of all such purchase
----
money Indebtedness incurred on and after the Initial Borrowing Date and
outstanding at any time, shall not exceed $50,000,000;
(e) Indebtedness constituting Intercompany Loans to the extent
permitted by Section 9.05(f);
(f) Permitted Subordinated Refinancing Indebtedness, so long as no
Default or Event of Default is in existence at the time of any incurrence
thereof and immediately after giving effect thereto;
(g) unsecured Indebtedness of the US Borrowers and any other US Credit
Party that is a Subsidiary Guarantor incurred under the Senior Subordinated
Notes and the other Senior Subordinated Note Documents in an aggregate principal
amount not to exceed $200,000,000 less the amount of any repayments of principal
----
thereof after the Initial Borrowing Date;
(h) unsecured Indebtedness of Holdings incurred (I) under the Initial
Holdings PIK Junior Subordinated Notes in an aggregate principal amount not to
exceed $141,400,000 plus (x) the aggregate principal amount of any additional
----
Initial Holdings PIK Junior Subordinated Notes issued in respect of regularly
scheduled interest payments thereon in accordance with the terms thereof and
hereof and less (y) the amount of any repayments of principal thereof after the
----
Initial Borrowing Date, and (II) from and after Acquisition Corp.'s contribution
of Initial Holdings PIK Junior Subordinated Notes held by it to Holdings and
Holdings' retirement of same, under the New Holdings PIK Junior Subordinated
Notes in an aggregate principal amount not to exceed the aggregate principal
amount of, and all accrued and unpaid interest on, such outstanding Initial
Holdings PIK Junior Subordinated Notes which have been so contributed and
retired as described above plus (x) the aggregate principal amount of any
----
additional New Holdings PIK Junior Subordinated Notes issued in respect of
regularly scheduled
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interest payments thereon in accordance with the terms thereof and hereof and
less (y) the amount of any repayments of principal thereof after the issuance
thereof;
(i) unsecured Indebtedness of Holdings incurred under the Holdings
Contingent Seller Subordinated Note in an aggregate principal amount not to
exceed $127,000,000 plus (x) the aggregate amount of any accrued and unpaid
----
interest on the Holdings Contingent Seller Subordinated Note that is capitalized
in accordance with the terms thereof and hereof and less (y) the amount of any
----
repayments of principal thereof after the issuance thereof;
(j) Indebtedness of RPP USA or any of its Subsidiaries which may be
deemed to exist in connection with agreements providing for indemnification,
purchase price adjustments, earn-outs and similar obligations in connection with
acquisitions or sales of assets and/or businesses effected in accordance with
the requirements of this Agreement (so long as any such obligations are those of
the Person making the respective acquisition or sale, and are not guaranteed by
any other Person);
(k) Contingent Obligations of (x) RPP USA or any of its Subsidiaries
as a guarantor of the lessee or contracting party, as the case may be, under any
lease or other contract pursuant to which RPP USA or any of its Wholly-Owned
Subsidiaries is the lessee or contracting party so long as such lease or other
contract is otherwise permitted hereunder, (y) RPP USA or any of its
Subsidiaries as a guarantor of any Capitalized Lease Obligation to which a Joint
Venture is a party or any contract entered into by such Joint Venture in the
ordinary course of business; provided that the maximum liability of RPP USA or
--------
any such Subsidiary in respect of any obligations as described pursuant to
preceding clause (y) is permitted as an Investment on such date pursuant to the
requirements of Section 9.05(l), and (z) RPP USA or any of its Subsidiaries
which may be deemed to exist pursuant to acquisition agreements entered into in
connection with Permitted Acquisitions (including any obligation to pay the
purchase price therefor and any indemnification, purchase price adjustment and
similar obligations);
(l) Indebtedness with respect to performance bonds, surety bonds,
appeal bonds or customs bonds required in the ordinary course of business or in
connection with the enforcement of rights or claims of RPP USA or any of its
Subsidiaries or in connection with judgments that do not result in a Default or
an Event of Default, provided that the aggregate outstanding amount of all such
--------
performance bonds, surety bonds, appeal bonds and customs bonds permitted by
this subsection (l) shall not at any time exceed $10,000,000;
(m) unsecured Indebtedness of Holdings under the Holdings Shareholder
Subordinated Notes issued after the Initial Borrowing Date in connection with a
redemption or repurchase of Holdings Common Stock pursuant to Section 9.06(b);
(n) Indebtedness of RPP USA or any of its Subsidiaries consisting of
(x) the financing of insurance premiums in the ordinary course of business or
(y) take-or-pay obligations contained in supply arrangements entered into in the
ordinary course of business and on a basis consistent with past practice; and
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(o) (x) Permitted Subordinated Indebtedness incurred in accordance
with the requirements of the definition thereof, (y) Indebtedness of RPP USA and
its Subsidiaries incurred under lines of credit or overdraft facilities extended
by The Chase Manhattan Bank (or any successor by merger thereto) and/or one or
more of its banking affiliates or another bank reasonably acceptable to the
Administrative Agent and (in each case) established for RPP USA's and its
Subsidiaries' ordinary course of operations (such Indebtedness, the "Overdraft
Line"), which Indebtedness may be secured as, but only to the extent, provided
in Section 9.03(c) and in the Security Documents (it being understood, however,
that for a period of 30 consecutive days during each fiscal year of RPP USA the
outstanding principal amount of Indebtedness under the Overdraft Line shall not
exceed $4,000,000), and (z) additional unsecured Indebtedness of RPP USA and any
of its Subsidiaries not otherwise permitted pursuant to this Section 9.04, so
long as the aggregate principal amount of all Indebtedness permitted by this
clause (o), when added to the aggregate liquidation preference for all
Disqualified Preferred Stock issued after the Initial Borrowing Date pursuant to
Section 9.13(c), does not exceed $50,000,000 at any time outstanding.
9.05 Advances; Investments; Loans. Holdings will not, and will not
----------------------------
permit any of its Subsidiaries to, lend money or extend credit or make advances
to any Person, or purchase or acquire any stock, obligations or securities of,
or any other interest in, or make any capital contribution to, any Person, or
purchase or own a futures contract or otherwise become liable for the purchase
or sale of currency or other commodities at a future date in the nature of a
futures contract, or hold any cash or Cash Equivalents (any of the foregoing, an
"Investment"), except:
(a) RPP USA and any of its Subsidiaries may invest in cash and Cash
Equivalents, provided that during any time that (i) Revolving Loans or Swingline
--------
Loans are outstanding and (ii) the Total Revolving Loan Commitment exceeds
$40,000,000, the aggregate amount of cash and Cash Equivalents held by RPP USA
and its Subsidiaries shall not exceed $20,000,000 for any period of three
consecutive Business Days;
(b) RPP USA and any of its Subsidiaries may acquire and hold
receivables owing to it, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade terms
(including the dating of receivables) of RPP USA or such Subsidiary;
(c) RPP USA and any of its Subsidiaries may acquire and own
investments (including debt obligations and equity securities) received in
connection with the bankruptcy or reorganization of suppliers and customers and
in settlement of delinquent obligations of, and other disputes with, customers
and suppliers arising in the ordinary course of business;
(d) Interest Rate Protection Agreements and Other Hedging Agreements
entered into in compliance with Section 9.04(c) shall be permitted;
(e) advances, loans and investments in existence on the Initial
Borrowing Date and listed on Schedule X shall be permitted, without giving
effect to any additions thereto or replacements thereof, it being understood
that any additional Investments made with respect to
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such existing Investments shall be permitted only if independently justified
under the other provisions of this Section 9.05;
(f) RPP USA and any of its Wholly-Owned Subsidiaries may make
intercompany loans and advances between and among one another (collectively,
"Intercompany Loans"), provided that (i) at no time shall the aggregate
--------
outstanding principal amount of all Intercompany Loans made pursuant to this
clause (f) by the Credit Parties to Wholly-Owned Subsidiaries that are not
Credit Parties, when added to the aggregate amount of contributions,
capitalizations and forgiveness theretofore made pursuant to Section 9.05(p) in
respect of Wholly-Owned Foreign Subsidiaries that are not Credit Parties, exceed
$25,000,000 (determined without regard to any write-downs or write-offs of such
loans and advances), (ii) if any such Intercompany Loan made by a Credit Party
is evidenced by a promissory note or other instrument, such promissory note or
other instrument shall be an Intercompany Note and such Intercompany Note shall
be pledged to the Collateral Agent to the extent required pursuant to the
applicable Pledge Agreement, and (iii) each Intercompany Loan made either (x) to
any US Borrower or (y) by a Wholly-Owned Foreign Subsidiary to a US Credit Party
or by a Non-Credit Party to a Credit Party shall include (or, if not evidenced
by an Intercompany Note, the books and records of the respective parties shall
note that such Intercompany Loan is subject to) the subordination provisions
attached as an Annex to the form of Intercompany Note;
(g) loans and advances by RPP USA and any of its Subsidiaries to
employees of Holdings and any of its Subsidiaries in the ordinary course of
business and for bona fide business purposes (including travel and entertainment
expenses) shall be permitted, so long as the aggregate principal amount thereof
at any time outstanding (determined without regard to any write-downs or write-
offs of such loans and advances) shall not exceed $5,000,000;
(h) Holdings may acquire and hold obligations of one or more officers
or other employees of Holdings or any of its Subsidiaries in connection with
such officers' or employees' acquisition of shares of Holdings Common Stock, so
long as no cash is actually advanced by Holdings or any of its Subsidiaries to
such officers or employees in connection with the acquisition of any such
obligations;
(i) the Recapitalization shall be permitted to be consummated in
accordance with the requirements of Section 5.08;
(j) RPP USA and any of its Wholly-Owned Subsidiaries may make
Permitted Acquisitions in accordance with the relevant requirements of Section
8.14;
(k) Holdings and its Subsidiaries may own the capital stock of their
respective Subsidiaries created or acquired in accordance with the terms of this
Agreement (so long as all amounts invested in such Subsidiaries are
independently justified under another provision of this Section 9.05);
(l) so long as no Default or Event of Default exists or would exist
immediately after giving effect to the respective Investment, RPP USA and any of
its Wholly-Owned Subsidiaries shall be permitted to make Investments in any
Joint Venture or any Unrestricted
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Subsidiary on any date in an amount not to exceed the Available Basket Amount on
such date (after giving effect to all prior and contemporaneous adjustments
thereto, except as a result of such Investment), it being understood and agreed
that (i) to the extent any Credit Parties (after the respective Investment has
been made) receives a cash return from the respective Joint Venture or
Unrestricted Subsidiary of amounts previously invested pursuant to this clause
(l) (which cash return may be made by way of repayment of principal in the case
of loans and cash equity returns (whether as a distribution, dividend or
redemption) in the case of equity investments) or a return in the form of an
asset distribution from the respective Joint Venture or Unrestricted Subsidiary
of any asset previously contributed pursuant to this clause (l), then the amount
of such cash return of investment or the fair market value of such distributed
asset (as determined in good faith by senior management of Holdings), as the
case may be, shall, upon the Administrative Agent's receipt of a certification
of the amount of the return of investment from an Authorized Officer of
Holdings, apply to increase the Available Basket Amount, provided that the
--------
aggregate amount of increases to the Available Basket Amount described above
shall not exceed the amount of returned investment and, in no event, shall the
amount of the increases made to the Available Basket Amount in respect of any
Investment exceed the amount previously invested pursuant to this clause (l);
(m) RPP USA and any of its Subsidiaries may receive and hold
promissory notes and other non-cash consideration received in connection with
any asset sale permitted by Sections 9.02(d), (m) and (n);
(n) RPP USA and any of its Subsidiaries may convey, lease, license,
sell or otherwise transfer or acquire assets and properties to the extent
permitted by Sections 9.02(e), (f), (g), (h) and (l);
(o) RPP USA and any of its Subsidiaries may make advances in the form
of a prepayment of expenses, so long as such expenses were incurred in the
ordinary course of business and are being paid in accordance with customary
trade terms of RPP USA or such Subsidiary;
(p) RPP USA and its Wholly-Owned Subsidiaries may make cash capital
contributions to their respective Wholly-Owned Subsidiaries, and may capitalize
or forgive any Indebtedness owed to them by a Wholly-Owned Foreign Subsidiary
and outstanding under clause (f) of this Section 9.05, provided that the
--------
aggregate amount of such contributions, capitalizations and forgiveness on and
after the Initial Borrowing Date made to Wholly-Owned Foreign Subsidiaries that
are Non-Credit Parties, when added to the aggregate outstanding principal amount
of Intercompany Loans made to Wholly-Owned Foreign Subsidiaries that are Non-
Credit Parties under such clause (f) (determined without regard to any write-
downs or write-offs thereof) shall not exceed an amount equal to $25,000,000;
and
(q) in addition to Investments permitted by clauses (a) through (p)
of this Section 9.05, RPP USA and any of its Subsidiaries may make additional
loans, advances and other Investments to or in a Person in an aggregate amount
for all loans, advances and other Investments made pursuant to this clause (q)
(determined without regard to any write-downs or write-offs thereof), net of
cash repayments of principal in the case of loans, sale proceeds in the
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case of Investments in the form of debt instruments and cash equity returns
(whether as a distribution, dividend, redemption or sale) in the case of equity
investments, not to exceed $40,000,000 at any time outstanding.
9.06 Dividends; etc. Holdings will not, and will not permit any of
---------------
its Subsidiaries to, declare or pay any dividends or return any capital to its
stockholders or authorize or make any other distribution, payment or delivery of
property or cash to its stockholders as such, or redeem, retire, purchase or
otherwise acquire, directly or indirectly, for a consideration, any shares of
any class of its capital stock, now or hereafter outstanding (or any warrants
for or options or stock appreciation rights in respect of any of such shares),
or set aside any funds for any of the foregoing purposes, and Holdings will not
permit any of its Subsidiaries to purchase or otherwise acquire for
consideration any shares of any class of the capital stock of Holdings or any
other Subsidiary, as the case may be, now or hereafter outstanding (or any
options or warrants or stock appreciation rights issued by such Person with
respect to its capital stock) (all of the foregoing, except to the extent paid
by such Person to its shareholders with the common stock of such Person,
"Dividends"), except that:
(a) any Subsidiary of RPP USA may pay Dividends to RPP USA or any
Wholly-Owned Subsidiary of RPP USA;
(b) RPP USA may pay cash Dividends to Holdings to enable Holdings
to, and Holdings may, redeem or purchase Holdings PIK Junior Subordinated Notes
and/or shares of Holdings Common Stock or options to purchase Holdings Common
Stock, as the case may be, in either case held by former employees, consultants,
officers or directors of Holdings or any of its Subsidiaries following the
termination of their employment or resignation from their respective positions
(by death, disability or otherwise), and Holdings may pay cash Dividends to
Acquisition Corp. (with cash Dividends received from RPP USA under this Section
9.06(b)) for the purpose of enabling Acquisition Corp. to redeem or repurchase
Acquisition Corp. PIK Junior Subordinated Notes or units of Acquisition Corp.,
in either case issued to any such employees, consultants, officers or directors,
provided that (x) the only consideration paid by Holdings in respect of such
- --------
redemptions and/or purchases shall be cash, forgiveness of liabilities and/or
Holdings Shareholder Subordinated Notes, (y) the sum of (A) the aggregate amount
paid by Holdings in cash in respect of all such Dividends, redemptions and/or
purchases made pursuant to this Section 9.06(b) plus (B) the aggregate amount of
liabilities so forgiven plus (C) the aggregate amount of all cash principal and
interest payments made on Holdings Shareholder Subordinated Notes, in each case
after the Initial Borrowing Date, shall not exceed $10,000,000, and (z) at the
time of any cash Dividend, payment or forgiveness of liabilities permitted to be
made pursuant to this Section 9.06(b), including any cash payment under a
Holdings Shareholder Subordinated Note, no Default or Event of Default shall
then exist or result therefrom;
(c) so long as no Default or Event of Default exists or would result
therefrom, RPP USA may pay cash Dividends to Holdings to enable Holdings to, and
Holdings may, pay regularly accruing cash Dividends on Disqualified Preferred
Stock issued pursuant to Section 9.13(c), with such Dividends to be paid in
accordance with the terms of the respective certificate of designation therefor;
-95-
(d) any Subsidiary of RPP USA that is not a Wholly-Owned Subsidiary
may pay cash Dividends to its shareholders, members or partners generally, so
long as RPP USA or its respective Subsidiary which owns the equity interest or
interests in the Subsidiary paying such Dividends receives at least its
proportionate share thereof (based upon its relative holdings of equity interest
in the Subsidiary paying such Dividends and taking into account the relative
preferences, if any, of the various classes of equity interests in such
Subsidiary or the terms of any agreements applicable thereto);
(e) the Recapitalization and the Redemption shall be permitted;
(f) RPP USA may pay cash Dividends to Holdings so long as the
proceeds thereof are promptly used by Holdings to either (x) pay operating
expenses incurred in the ordinary course of business (including, without
limitation, outside directors and professional fees, expenses and indemnities)
and other similar corporate overhead costs and expenses or (y) pay cash
Dividends to Acquisition Corp. so long as the proceeds thereof are promptly used
by Acquisition Corp. to pay expenses incurred in the ordinary course of business
and other similar corporate overhead costs and expenses, provided that the
--------
aggregate amount of all cash Dividends paid pursuant to this clause (f) shall
not exceed $2,000,000 in any fiscal year of RPP USA;
(g) RPP USA may pay cash Dividends to Holdings (and Holdings may pay
cash Dividends to any direct or indirect parent company of Holdings which is the
taxpayer for the consolidated group of which Holdings is a member) at the times
and in the amounts necessary to enable Holdings (and/or such direct or indirect
parent company) to pay its tax obligations; provided that (w) the aggregate
--------
amount of cash Dividends paid pursuant to this clause (g) to enable Holdings
(and/or such direct or indirect parent company) to pay Federal and state income
taxes at any time shall not exceed the aggregate amount of such Federal and
state income taxes equal to the lesser of (i) the aggregate amount of taxes
actually owing by Holdings (determined as if Holdings was the ultimate taxpayer
for its consolidated group) and (ii) the aggregate amount of taxes actually
owing by such direct or indirect parent company, in each case at such time for
the respective period, (x) any refunds received by Holdings (and/or such direct
or indirect parent company) shall promptly be returned by Holdings (and/or such
direct or indirect parent company to Holdings for return) to RPP USA, (y)
Holdings may only pay Dividends pursuant to this clause (g) to pay any direct or
indirect parent company's Federal and state income tax obligations and (z) at
such time as Holdings is the ultimate taxpayer for its consolidated group, no
further Dividends may be paid by Holdings pursuant to this clause (g); and
(h) Holdings may pay regularly accruing Dividends with respect to
Qualified Preferred Stock through the issuance of additional shares of Qualified
Preferred Stock (but not in cash) in accordance with the terms of the
documentation governing the same.
9.07 Transactions with Affiliates and Unrestricted Subsidiaries.
----------------------------------------------------------
Holdings will not, and will not permit any of its Subsidiaries to, enter into
any transaction or series of transactions with any Affiliate of Holdings or any
of its Subsidiaries or any of its Unrestricted Subsidiaries other than on terms
and conditions substantially as favorable to Holdings or such Subsidiary as
would be reasonably expected to be obtainable by Holdings or such Subsidiary at
the time in a comparable arm's-length transaction with a Person other than an
Affiliate; provided
--------
-96-
that the following shall in any event be permitted: (a) the Transaction; (b)
transactions by Holdings and its Subsidiaries to the extent expressly permitted
by Sections 9.02, 9.04, 9.05 and 9.06; (c) so long as no Default or Event of
Default is then in existence or would result therefrom, the payment, on a
quarterly basis, of management fees to Apollo Group in an aggregate amount not
to exceed $250,000 in any fiscal quarter of RPP USA pursuant to, and in
accordance with the terms of, the Apollo Management Agreement, provided that (x)
--------
at any time a Default or an Event of Default is in existence and such management
fees cannot be paid as provided above, such fees shall continue to accrue and
may be paid at such time when all Defaults and Events of Default have been cured
or waived and so long as no Default or Event of Default will exist immediately
after giving effect to the payment thereof, and (y) to the extent that Apollo
Group voluntarily defers any management fees otherwise payable to it in any
fiscal quarter of RPP USA pursuant to the provisions above at a time when no
Default or Event of Default exists, such deferred management fees may thereafter
be payable to Apollo Group at any time so long as no Default or Event of Default
is then in existence; (d) customary fees to non-officer directors of Holdings
and its Subsidiaries; (e) Holdings and its Subsidiaries may enter into
employment arrangements with respect to the procurement of services with their
respective officers and employees in the ordinary course of business; (f) the
payment on the Initial Borrowing Date of one time consulting and advisory fees
to Apollo Group in an aggregate amount not to exceed $5,000,000; (g) the
reimbursement of Apollo Group for its reasonable out-of-pocket expenses incurred
in connection with performing management services to Holdings and its
Subsidiaries pursuant to the Apollo Management Agreement or in connection with
the Transaction; (h) so long as no Default or Event of Default is then in
existence or would result therefrom, the payment to Apollo Group of merger
advisory fees for each Permitted Acquisition in an amount not to exceed 1% of
the fair market value of the business or assets acquired pursuant to such
Permitted Acquisition (determined in good faith by senior management of
Holdings); (i) the payment of consulting, management or other fees to RPP USA or
any Subsidiary thereof that is a Credit Party by any of their respective
Subsidiaries in the ordinary course of business; and (j) payments pursuant to
Tax Allocation Agreements either (x) existing on the Initial Borrowing Date or
(y) amended, modified, changed or entered into in accordance with the
requirements of Section 9.12(vii). In no event shall any management, consulting
or similar fee be paid or payable by Holdings or any of its Subsidiaries to any
Person that is an Affiliate of Holdings or any of its Subsidiaries except as
specifically provided in this Section 9.07.
9.08 Designated Senior Debt. Neither Holdings nor any Borrower shall
----------------------
designate any Indebtedness (other than the Obligations) as "Designated Senior
Debt" (or any similar term) (as defined in the Senior Subordinated Notes
Indenture, the Holdings Contingent Seller Subordinated Note, the Holdings PIK
Junior Subordinated Notes and, on and after the execution and delivery thereof,
any agreement relating to Permitted Subordinated Indebtedness and Permitted
Subordinated Refinancing Indebtedness).
9.09 Consolidated Interest Coverage Ratio. RPP USA will not permit
------------------------------------
the Consolidated Interest Coverage Ratio for any Test Period ending on the last
day of any fiscal quarter of RPP USA specified below to be less than the ratio
set forth opposite such fiscal quarter below:
-97-
Fiscal Quarter Ending Ratio
--------------------- -----
March 31, 2001 1.60:1.0
June 30, 2001 1.60:1.0
September 30, 2001 1.60:1.0
December 31, 2001 1.60:1.0
March 31, 2002 1.60:1.0
June 30, 2002 1.60:1.0
September 30, 2002 1.60:1.0
December 31, 2002 1.65:1.0
March 31, 2003 1.65:1.0
June 30, 2003 1.65:1.0
September 30, 2003 1.65:1.0
December 31, 2003 1.75:1.0
March 31, 2004 1.75:1.0
June 30, 2004 1.75:1.0
September 30, 2004 1.75:1.0
December 31, 2004 1.80:1.0
March 31, 2005 1.80:1.0
June 30, 2005 1.80:1.0
September 30, 2005 1.80:1.0
December 31, 2005 2.00:1.0
March 31, 2006 2.00:1.0
June 30, 2006 2.00:1.0
September 30, 2006 2.00:1.0
December 31, 2006 2.25:1.0
March 31, 2007 2.25:1.0
June 30, 2007 2.25:1.0
September 30, 2007 2.25:1.0
December 31, 2007 2.35:1.0
March 31, 2008 2.50:1.0
Thereafter 2.50:1.0
Notwithstanding anything to the contrary contained in this Agreement, all
calculations of compliance with this Section 9.09 shall be made on a Pro Forma
--- -----
Basis.
9.10 Adjusted Total Leverage Ratio. RPP USA will not permit the
-----------------------------
Adjusted Total Leverage Ratio on the last day of any fiscal quarter of RPP USA
specified below to exceed the respective ratio set forth opposite such fiscal
quarter below:
Fiscal Quarter Ending Ratio
--------------------- -----
March 31, 2001 5.75:1.0
June 30, 2001 5.75:1.0
September 30, 2001 5.75:1.0
December 31, 2001 5.75:1.0
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Fiscal Quarter Ending Ratio
--------------------- -----
March 31, 2002 5.75:1.0
June 30, 2002 5.75:1.0
September 30, 2002 5.75:1.0
December 31, 2002 5.25:1.0
March 31, 2003 5.25:1.0
June 30, 2003 5.25:1.0
September 30, 2003 5.25:1.0
December 31, 2003 5.00:1.0
March 31, 2004 5.00:1.0
June 30, 2004 5.00:1.0
September 30, 2004 5.00:1.0
December 31, 2004 4.75:1.0
March 31, 2005 4.75:1.0
June 30, 2005 4.75:1.0
September 30, 2005 4.75:1.0
December 31, 2005 4.50:1.0
March 31, 2006 4.50:1.0
June 30, 2006 4.50:1.0
September 30, 2006 4.50:1.0
Thereafter 4.00:1.0
Notwithstanding anything contrary contained above or elsewhere in this
Agreement, (i) all calculations of compliance with this Section 9.10 shall be
made on a Pro Forma Basis and (ii) in no event shall the Adjusted Total Leverage
--- -----
Ratio be greater than the Maximum Permitted Acquisition Leverage Ratio upon the
consummation of, and after giving effect on a Pro Forma Basis to, any Permitted
--- -----
Acquisition.
9.11 Capital Expenditures. (a) Holdings will not, and will not
--------------------
permit any of its Subsidiaries to, make any Capital Expenditures, except that
(i) during the period from the Initial Borrowing Date through and including
December 31, 2000, RPP USA and any of its Subsidiaries may make Capital
Expenditures in an aggregate amount not to exceed $10,000,000, and (ii) during
any fiscal year set forth in the table below, RPP USA and any of its
Subsidiaries may make Capital Expenditures, so long as the aggregate amount of
such Capital Expenditures does not exceed in any fiscal year set forth below the
sum of (x) the amount set forth opposite such fiscal year below plus (y) for
----
each Acquired Business acquired after the Initial Borrowing Date and prior to
the first day of the respective fiscal year set forth below, 25% of the Acquired
EBITDA of such Acquired Business for the trailing twelve months of such Acquired
Business immediately preceding its acquisition for which financial statements
have been made available to RPP USA and the Lenders plus (z) for each Acquired
----
Business acquired during the respective fiscal year, the amount for such
Acquired Business specified in preceding clause (y) multiplied by a percentage,
the numerator of which is the number of days in the fiscal year after the date
of the respective acquisition and the denominator of which is 365 or 366, as the
case may be (it being understood, however, that no IT Capital Expenditures may
-------
be made pursuant to this clause (a) during any fiscal year prior to the fiscal
year commencing on January 1, 2006):
-99-
Fiscal Year Ending Amount
------------------ ------
December 31, 2001 $45,000,000
December 31, 2002 $40,000,000
December 31, 2003 $40,000,000
December 31, 2004 $40,000,000
December 31, 2005 $40,000,000
December 31, 2006 $45,000,000
December 31, 2007 $45,000,000
December 31, 2008 $45,000,000
(b) Notwithstanding the foregoing, in the event that the amount of
Capital Expenditures permitted to be made by RPP USA and any of its Subsidiaries
pursuant to clause (a) above in any fiscal year set forth in the table above
(before giving effect to any increase in such permitted expenditure amount
pursuant to this clause (b)) is greater than the amount of such Capital
Expenditures made by RPP USA and any of its Subsidiaries during such fiscal
year, such excess (the "Rollover Amount") may be carried forward and utilized to
make Capital Expenditures in succeeding fiscal years, provided that (i) in no
--------
event shall the Rollover Amount available to be utilized in any succeeding
fiscal year exceed 50% of the applicable permitted scheduled Capital Expenditure
amount as set forth in clause (a) above for the fiscal year by reference to
which the Rollover Amount was determined and (ii) no IT Capital Expenditures may
be made with any Rollover Amounts from any fiscal year ending prior to the
fiscal year commencing on January 1, 2006.
(c) Notwithstanding the foregoing, RPP USA and any of its
Subsidiaries may make Capital Expenditures (which Capital Expenditures will not
be included in any determination under the foregoing clause (a)) with the
insurance proceeds received by RPP USA or any of its Subsidiaries from any
Recovery Event so long as such Capital Expenditures are used to replace or
restore any properties or assets in respect of which such proceeds were paid or
committed to be paid within 360 days following the date of the receipt of such
insurance proceeds, in each case to the extent such insurance proceeds do not
require, or result in, a mandatory repayment of Term Loans and/or a mandatory
reduction to the Total Revolving Loan Commitment pursuant to Section 4.02(g).
(d) Notwithstanding the foregoing, RPP USA and any of its
Subsidiaries may make Capital Expenditures (which Capital Expenditures will not
be included in any determination under the foregoing clause (a)) with the Net
Sale Proceeds of Asset Sales, to the extent such Net Sale Proceeds do not
require, or result in, a mandatory repayment of Term Loans and/or a mandatory
reduction to the Total Revolving Loan Commitment pursuant to Section 4.02(d) and
such proceeds are reinvested as required by said Section 4.02(d).
(e) Notwithstanding the foregoing, RPP USA and any of its Wholly-
Owned Subsidiaries may make Capital Expenditures (which Capital Expenditures
will not be included in any determination under the foregoing clause (a))
constituting Permitted Acquisitions effected in accordance with the requirements
of Section 9.02(i).
-100-
(f) Notwithstanding the foregoing, during the period from the
Initial Borrowing Date through December 31, 2005, RPP USA and its Subsidiaries
may make IT Capital Expenditures in an aggregate amount not to exceed
$50,000,000 (which Capital Expenditures will not be included in any
determination during such period under the foregoing clause (a)).
9.12 Limitation on Voluntary Payments and Modifications of
-----------------------------------------------------
Indebtedness; Modifications of Certificate of Incorporation, By-Laws and Certain
- --------------------------------------------------------------------------------
Other Agreements; Issuances of Capital Stock; etc. Holdings will not, and will
- --------------------------------------------------
not permit any of its Subsidiaries to:
(i) amend or modify, or permit the amendment or modification of,
any provision of any Holdings Shareholder Subordinated Note or, after the
incurrence or issuance thereof, any Qualified Preferred Stock, Disqualified
Preferred Stock or Permitted Debt or of any agreement (including, without
limitation, any purchase agreement, indenture, loan agreement, security
agreement or certificate of designation) relating thereto in a manner that
could reasonably be expected to in any way be adverse to the interests of
the Lenders;
(ii) make (or give any notice in respect of) any voluntary or
optional payment or prepayment on or redemption, repurchase or acquisition
for value of (including, without limitation, by way of depositing with the
trustee with respect thereto or any other Person money or securities before
due for the purpose of paying when due), or any prepayment or redemption as
a result of any asset sale, excess cash flow recapture, change of control
or similar event of, any Senior Subordinated Note (except, in the case of
the Senior Subordinated Notes, through the issuance of Exchange Senior
Subordinated Notes as contemplated in the definition of Senior Subordinated
Notes and consistent with the requirements of the definition of Exchange
Senior Subordinated Notes), any Permitted Subordinated Refinancing
Indebtedness or any Permitted Subordinated Indebtedness; provided that, so
--------
long as no Default or Event of Default then exists or would result
therefrom, (x) any Senior Subordinated Notes may be refinanced with
Permitted Subordinated Refinancing Indebtedness, and (y) the US Borrowers
may repurchase the Senior Subordinated Notes on the open market in an
aggregate principal amount for all purchases made pursuant to this clause
(y) not to exceed $37,500,000 so long as the Adjusted Total Leverage Ratio
is less than 4.0:1.0 on the last day of the Test Period most recently ended
prior to the consummation of the respective repurchase (as set forth in the
officer's certificate most recently delivered pursuant to Section 8.01(e));
(iii) make (or give any notice in respect of) any principal or
interest payment on, or any redemption or acquisition for value of, any
Holdings Shareholder Subordinated Note, except to the extent permitted by
Section 9.06(b);
(iv) make (or give any notice in respect of) any voluntary, optional
or mandatory payment or prepayment on or redemption or acquisition for
value of (including, in each case, without limitation, by way of depositing
with the trustee with respect thereto or any other Person money or
securities before due for the purposes of paying when due), any Holdings
PIK Junior Subordinated Note or make any other payment in respect thereof
(whether for principal, interest or other amounts) except as otherwise
expressly permitted
-101-
by Section 8.19; provided, however, (I) Holdings may redeem or retire
-------- -------
outstanding Initial Holdings PIK Junior Subordinated Notes in connection
with its assumption of Acquisition Corp. PIK Junior Subordinated Notes (or
its exchange of such Initial Holdings PIK Junior Subordinated Notes for New
Holdings PIK Junior Subordinated Notes) in a like amount (including, for
this purpose, all principal and accrued and unpaid interest owing in
respect of the Initial Holdings PIK Junior Subordinated Notes) so long as
(i) no cash is paid by Holdings or any of its Subsidiaries in connection
with such redemption, retirement or exchange, (ii) no Default or Event of
Default then exists or would result therefrom and (iii) all of the economic
terms and conditions, and all of the covenants, remedies, defaults and
subordination provisions of the Acquisition Corp. PIK Junior Subordinated
Notes so assumed (or the New Holdings PIK Junior Subordinated Notes issued
in connection with such exchange, as the case may be) are substantially
identical to all of such terms and conditions and all of the covenants,
remedies, defaults and subordination provisions of the Initial Holdings PIK
Junior Subordinated Notes (although (x) such terms and conditions and such
other provisions may be more favorable to Holdings and the Lenders and (y)
the interest rate thereon may be lower and the maturity thereof may be
longer), and with all of the other terms and conditions to be reasonably
acceptable to the Administrative Agent (unless such other terms and
conditions are substantially identical to those contained in the Initial
Holdings PIK Junior Subordinated Notes);
(v) make (or give any notice in respect of) any voluntary, optional
or mandatory payment or prepayment on or redemption or acquisition for
value of (including, in each case, without limitation, by way of depositing
with the trustee with respect thereto or any other Person money or
securities before due for the purposes of paying when due) the Holdings
Contingent Seller Subordinated Note or make any other payment in respect
thereof (whether for principal, interest or other amounts);
(vi) amend or modify, or permit the amendment or modification of,
any provision of any Senior Subordinated Note Document, any Holdings PIK
Junior Subordinated Note or the Holdings Contingent Seller Subordinated
Note except for any such amendment or modification that could not be
adverse to the interests of the Lenders and which is expressly agreed to in
writing by the Administrative Agent;
(vii) amend, modify or change in any way which could reasonably be
expected to be adverse to the interests of the Lenders in any material
respect any Tax Allocation Agreement, any Management Agreement, any Equity
Financing Document, any Recapitalization Document, its certificate or
articles of incorporation (including, without limitation, by the filing or
modification of any certificate of designation other than any certificates
of designation relating to Qualified Preferred Stock or Disqualified
Preferred Stock issued as permitted herein), by-laws, certificate of
partnership, partnership agreement, certificate of limited liability
company, limited liability company agreement or any agreement entered into
by it, with respect to its capital stock or other equity interest
(including any Shareholders' Agreement), or enter into any new Tax
Allocation Agreement, Management Agreement or agreement with respect to its
capital stock or other equity interest which could reasonably be expected
to in any way be adverse to the
-102-
interests of the Lenders or, in the case of any Management Agreement, which
involves the payment by Holdings or any of its Subsidiaries of any amount
which could give rise to a violation of this Agreement; provided that (x)
--------
the foregoing clause shall not restrict the ability of Holdings and its
Subsidiaries to amend their respective certificates of incorporation to
authorize the issuance of capital stock otherwise permitted to be issued
pursuant to the terms of this Agreement and (y) any amendment, modification
or change to any Tax Allocation Agreement, and the entering into of any new
Tax Allocation Agreement, shall, in each case, be reasonably satisfactory
in form and substance to the Administrative Agent; or
(viii) amend or modify, or permit the amendment or modification of,
any of the mortgagee protective provisions contained in any lease governing
any Real Property that is leased by Holdings or any of its Subsidiaries and
is subject to a Mortgage or a collateral assignment in favor of the
Collateral Agent.
9.13 Limitation on Issuance of Capital Stock. (a) Holdings will
---------------------------------------
not, and will not permit any of its Subsidiaries to, issue (i) any Preferred
Stock (other than Preferred Stock issued pursuant to clauses (c) and (d) below)
or any options, warrants or rights to purchase Preferred Stock or (ii) any
redeemable common stock unless, in either case, the issuance thereof is, and all
terms thereof are, satisfactory to the Required Lenders in their sole
discretion.
(b) Holdings will not permit any of its Subsidiaries to issue any
capital stock (including by way of sales of treasury stock) or any options or
warrants to purchase, or securities convertible into, capital stock, except (i)
for transfers and replacements of then outstanding shares of capital stock, (ii)
for stock splits, stock dividends and additional issuances which do not decrease
the percentage ownership of Holdings or any of its Subsidiaries in any class of
the capital stock of such Subsidiaries, (iii) to qualify directors to the extent
required by applicable law, (iv) Subsidiaries formed after the Initial Borrowing
Date pursuant to Section 9.15 may issue capital stock in accordance with the
requirements of Section 9.15 and (v) that Subsidiaries may issue common stock to
RPP USA and its Subsidiaries in connection with any transaction permitted by
Section 9.05(p). All capital stock issued in accordance with this Section
9.13(b) shall, to the extent owned by any Credit Party and required by a Pledge
Agreement, be delivered to the Collateral Agent for pledge pursuant to such
Pledge Agreement.
(c) Holdings may issue Disqualified Preferred Stock so long as (i)
no Default or Event of Default then exists or would exist immediately after
giving effect to the respective issuance, (ii) the aggregate liquidation
preference for all Disqualified Preferred Stock issued after the Initial
Borrowing Date pursuant to this Section 9.13(c) shall not to exceed, when
combined with the aggregate principal amount of all then outstanding
Indebtedness permitted by Section 9.04(o), $50,000,000, (iii) with respect to
each issue of Disqualified Preferred Stock, the gross cash proceeds therefrom
(or in the case of Disqualified Preferred Stock directly issued as consideration
for a Permitted Acquisition, the fair market value thereof (as determined in
good faith by Holdings) of the assets received therefor) shall not exceed the
liquidation preference thereof at the time of issuance, (iv) calculations are
made by RPP USA of compliance with the covenants contained in Sections 9.09 and
9.10 for the Calculation Period most recently ended prior to the date of the
respective issuance of Disqualified Preferred Stock, on a Pro Forma Basis
--- -----
-103-
after giving effect to the respective issuance of Disqualified Preferred Stock,
and such calculations shall show that such financial covenants would have been
complied with if such issuance of Disqualified Preferred Stock had been
consummated on the first day of the respective Calculation Period, and (v) RPP
USA shall furnish to the Administrative Agent a certificate by an Authorized
Officer of RPP USA certifying to the best of such officer's knowledge as to
compliance with the requirements of this Section 9.13(c) and containing the pro
---
forma calculations required by preceding clause (iv).
- -----
(d) Holdings may issue Qualified Preferred Stock (x) in payment of
regularly accruing dividends on theretofore outstanding shares of Qualified
Preferred Stock as contemplated by Section 9.06(h) and (y) so long as, with
respect to each other issue of Qualified Preferred Stock, Holdings receives
reasonably equivalent consideration (as determined in good faith by Holdings).
9.14 Limitation on Certain Restrictions on Subsidiaries. Holdings
--------------------------------------------------
will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective,
any encumbrance or restriction on the ability of any such Subsidiary to (x) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by Holdings or any Subsidiary of
Holdings, or pay any Indebtedness owed to Holdings or a Subsidiary of Holdings,
(y) make loans or advances to Holdings or any Subsidiary of Holdings or (z)
transfer any of its properties or assets to Holdings or any of its Subsidiaries,
except for such encumbrances or restrictions existing under or by reason of (i)
applicable law, (ii) this Agreement and the other Credit Documents, (iii) the
provisions contained in the Existing Indebtedness, (iv) customary provisions
restricting subletting or assignment of any lease governing a leasehold interest
of Holdings or a Subsidiary of Holdings entered into in the ordinary course of
business and consistent with past practices, (v) customary provisions
restricting assignment of any contract entered into by Holdings or any
Subsidiary of Holdings in the ordinary course of business, (vi) any agreement or
instrument governing Permitted Acquired Debt, which encumbrance or restriction
is not applicable to any Person or the properties or assets of any Person, other
than the Person or the properties or assets of the Person acquired pursuant to
the respective Permitted Acquisition and so long as the respective encumbrances
or restrictions were not created (or made more restrictive) in connection with
or in anticipation of the respective Permitted Acquisition, (vii) customary
provisions restricting the assignment of licensing agreements, management
agreements or franchise agreements entered into by Holdings or any of its
Subsidiaries in the ordinary course of business, (viii) restrictions applicable
to any Joint Venture that is a Subsidiary existing at the time of the
acquisition thereof as a result of an Investment pursuant to Section 9.05 or a
Permitted Acquisition effected in accordance with Section 8.14, provided that
--------
the restrictions applicable to the respective such Joint Venture are not made
worse, or more burdensome, from the perspective of Holdings and its
Subsidiaries, than those as in effect immediately before giving effect to the
consummation of the respective Investment or Permitted Acquisition, (ix) any
restriction or encumbrance with respect to a Subsidiary imposed pursuant to an
agreement which has been entered into for the sale or disposition of all or
substantially all of the capital stock or assets of such Subsidiary, so long as
such sale or disposition of all or substantially all of the capital stock or
assets of such Subsidiary is permitted under this Agreement, (x) restrictions on
the transfer of any asset pending the close of the sale of such asset so long as
such sale is permitted under this
-104-
Agreement, (xi) the documentation governing Permitted Debt (other than Permitted
Acquired Debt) so long as such restrictions are no more restrictive than those
contained in the Senior Subordinated Note Documents, (xii) the Senior
Subordinated Note Documents, (xiii) restrictions on the transfer of assets
securing purchase money obligations and Capitalized Lease Obligations otherwise
permitted hereunder, and (xiv) customary net worth provisions contained in Real
Property leases entered into by Subsidiaries of RPP USA with Persons other than
Shell so long as RPP USA has determined in good faith that such net worth
provisions could not reasonably be expected to impair the ability of RPP USA and
its Subsidiaries to meet their ongoing obligations (including those under this
Agreement and under the Senior Subordinated Notes).
9.15 Limitation on the Creation of Subsidiaries, Joint Ventures and
--------------------------------------------------------------
Unrestricted Subsidiaries. (a) Notwithstanding anything to the contrary
- -------------------------
contained in this Agreement, Holdings will not, and will not permit any of its
Subsidiaries to, establish, create or acquire after the Initial Borrowing Date
any Subsidiary or Unrestricted Subsidiary (other than Joint Ventures permitted
to be established in accordance with the requirements of Section 9.05(l));
provided that (A) RPP USA, any of its Wholly-Owned Subsidiaries and any
- --------
Unrestricted Subsidiary shall be permitted to establish, create or acquire an
Unrestricted Subsidiary, so long as (i) if an Unrestricted Subsidiary is
established, created or acquired by a Credit Party, the capital stock or other
equity interests of such new Unrestricted Subsidiary that is owned by such
Credit Party shall be pledged as, and to the extent, required pursuant to the
relevant Pledge Agreement and the certificates (if any) representing such stock
or other equity interests, together with appropriate powers duly executed in
blank, shall be delivered to the Collateral Agent, and (ii) all Investments by
RPP USA and its Subsidiaries in, or to acquire, any Unrestricted Subsidiary
(including as a result of the designation thereof as provided in the definition
of Unrestricted Subsidiary) are permitted pursuant to Section 9.05(l), (B) RPP
USA and its Wholly-Owned Subsidiaries shall be permitted to establish or create
Wholly-Owned Subsidiaries so long as, in each case, (i) at least 10 days' prior
written notice thereof is given to the Administrative Agent (or such shorter
period of time as is acceptable to the Administrative Agent), (ii) the capital
stock or other equity interests of such new Subsidiary are promptly pledged
pursuant to, and to the extent required by, this Agreement and the applicable
Pledge Agreement and the certificates, if any, representing such stock or other
equity interests, together with stock or other appropriate powers duly executed
in blank, are delivered to the Collateral Agent, (iii) in the case of a Domestic
Subsidiary, such new Domestic Subsidiary promptly executes a counterpart of the
US Subsidiaries Guaranty, the Foreign Subsidiaries Guaranty, the US Pledge
Agreement or US Pledge Agreements and the US Security Agreement, (iv) in the
case of any Foreign Subsidiary, such new Foreign Subsidiary promptly executes a
counterpart of (x) the Foreign Subsidiaries Guaranty and, to the extent required
by Section 8.11(a), the applicable Security Documents and (y) the Credit
Documents required to be executed by a new Domestic Subsidiary pursuant to
preceding clause (iii) to the extent required by Section 8.12, and (v) to the
extent requested by the Administrative Agent or the Required Lenders, such new
Subsidiary takes all actions required pursuant to Section 8.11 and (C)
Subsidiaries may be acquired pursuant to Permitted Acquisitions so long as, in
each such case, (i) with respect to each Domestic Subsidiary and each Wholly-
Owned Foreign Subsidiary acquired pursuant to a Permitted Acquisition, the
actions specified in preceding clauses (B) and (C), as applicable, shall be
taken and (ii) with respect to each Subsidiary which is acquired pursuant to a
Permitted Acquisition, all capital stock or other
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equity interests thereof owned by any Credit Party shall be pledged pursuant to
the applicable Pledge Agreement. In addition, each new Subsidiary that is
required to execute any Credit Document shall execute and deliver, or cause to
be executed and delivered, all other relevant documentation of the type
described in Section 5 as such new Subsidiary would have had to deliver if such
new Subsidiary were a Credit Party on the Initial Borrowing Date.
(b) Holdings will not, nor will Holdings permit any of its
Subsidiaries to, enter into any Joint Venture, except to the extent permitted by
Section 9.05(l).
SECTION 10. Events of Default. Upon the occurrence of any of the
-----------------
following specified events (each, an "Event of Default"):
10.01 Payments. Any Borrower shall (i) default in the payment when
--------
due of any principal of the Loans or (ii) default, and such default shall
continue for three or more Business Days, in the payment when due of any Unpaid
Drawing (or any interest thereon), any interest on the Loans or any Fees or any
other amounts owing hereunder or under any other Credit Document; or
10.02 Representations, etc. Any representation, warranty or
---------------------
statement made or deemed made by any Credit Party herein or in any other Credit
Document or in any statement or certificate delivered pursuant hereto or thereto
shall prove to be untrue in any material respect on the date as of which made or
deemed made; or
10.03 Covenants. Any Credit Party shall (a) default in the due
---------
performance or observance by it of any term, covenant or agreement contained in
Section 8.01(f)(i), 8.10, 8.13, 8.14, 8.17, 8.19 or 9, or (b) default in the due
performance or observance by it of any term, covenant or agreement (other than
those referred to in Section 10.01, 10.02 or clause (a) of this Section 10.03)
contained in this Agreement and such default shall continue unremedied for a
period of at least 30 days after notice to the defaulting party by the
Administrative Agent or the Required Lenders; or
10.04 Default Under Other Agreements. (a) Holdings or any of its
------------------------------
Subsidiaries shall (i) default in any payment with respect to any Indebtedness
(other than the Obligations) beyond the period of grace, if any, provided in the
instrument or agreement under which Indebtedness was created or (ii) default in
the observance or performance of any agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit the
holder or holders of such Indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause (determined without regard to whether any notice is
required), any such Indebtedness to become due prior to its stated maturity; or
(b) any Indebtedness (other than the Obligations) of Holdings or any of its
Subsidiaries shall be declared to be due and payable, or shall be required to be
prepaid other than by a regularly scheduled required prepayment or as a
mandatory prepayment (unless such required prepayment or mandatory prepayment
results from a default thereunder or an event of the type that constitutes an
Event of Default), prior to the stated maturity thereof; provided that it shall
--------
not constitute an Event of Default pursuant to clause (a) or (b) of this Section
10.04 unless
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the principal amount of any one issue of such Indebtedness, or the aggregate
amount of all such Indebtedness referred to in clauses (a) and (b) above,
exceeds $5,000,000 at any one time; or
10.05 Bankruptcy, etc. Holdings or any of its Subsidiaries shall
----------------
commence a voluntary case concerning itself under Title 11 of the United States
Code entitled "Bankruptcy," as now or hereafter in effect, or any successor
thereto (the "Bankruptcy Code"); or an involuntary case is commenced against
Holdings or any of its Subsidiaries and the petition is not controverted within
20 days, or is not dismissed within 60 days, after commencement of the case; or
a custodian (as defined in the Bankruptcy Code) is appointed for, or takes
charge of, all or substantially all of the property of Holdings or any of its
Subsidiaries; or Holdings or any of its Subsidiaries commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to Holdings or any of
its Subsidiaries; or there is commenced against Holdings or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60
days; or Holdings or any of its Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or Holdings or any of its Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60 days; or
Holdings or any of its Subsidiaries makes a general assignment for the benefit
of creditors; or any Company action is taken by Holdings or any of its
Subsidiaries for the purpose of effecting any of the foregoing; or
10.06 ERISA. (a) (i) Any Plan shall fail to satisfy the minimum
-----
funding standard required for any plan year or part thereof under Section 412 of
the Code or Section 302 of ERISA or a waiver of such standard or extension of
any amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, (ii) a Reportable Event shall have occurred, (iii)
a contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
within the following 30 days, (iv) any Plan which is subject to Title IV of
ERISA shall have had or is likely to have a trustee appointed under Section 4042
of ERISA to administer such Plan, (v) any Plan which is subject to Title IV of
ERISA is, shall have been or is likely to be terminated or to be the subject of
termination proceedings under ERISA, (vi) any Plan shall have an Unfunded
Current Liability, (vii) a contribution required to be made by Holdings or any
Subsidiary of Holdings with respect to a Plan, a Multiemployer Plan or a Foreign
Pension Plan has not been timely made, (viii) Holdings or any Subsidiary of
Holdings has incurred or is likely to incur any liability to or on account of a
Plan or Multiemployer Plan under Section 409, 502(i) or 502(1) of ERISA or
Section 4975 of the Code, (ix) Holdings or any Subsidiary of any Holdings or any
ERISA Affiliate has incurred or is likely to incur any liability to or on
account of a Plan under Section 4062, 4063, 4064, 4069 of ERISA or Section
401(a)(29) or 4971 of the Code or on account of a group health plan (as defined
in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section
4980B of the Code (other than for the provision of benefits in accordance with
such Section), (x) Holdings or any Subsidiary of Holdings or any ERISA Affiliate
has incurred or is likely to incur any liability to or on account of a
Multiemployer Plan under Section 515, 4201, 4204 or 4212 of ERISA or (xi)
Holdings or any
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Subsidiary of Holdings has incurred or is likely to incur liabilities pursuant
to one or more employee welfare benefit plans (as defined in Section 3(1) of
ERISA) that provide benefits to retired employees or other former employees
(other than as required by Section 601 of ERISA) or pursuant to any Plan or
Foreign Pension Plan; (b) there shall result from any such event or events the
imposition of a lien, the granting of a security interest, or a liability or a
material risk of incurring a liability; and (c) such lien, security interest or
liability, individually and/or in the aggregate, in the opinion of the Required
Lenders, has had, or could reasonably be expected to have, a Material Adverse
Effect; or
10.07 Security Documents. (a) Any Security Document shall cease to
------------------
be in full force and effect, or shall cease to give the Collateral Agent the
Liens, rights, powers and privileges purported to be created thereby in favor of
the Collateral Agent, superior to and prior to the rights of all third Persons
(except as permitted by Section 9.03), and subject to no other Liens (except as
permitted by Section 9.03), or (b) any Credit Party shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to any such Security Document and such default
shall continue beyond any cure or grace period specifically applicable thereto
pursuant to the terms of any such Security Document; or
10.08 Guaranties. Any Guaranty or any provision thereof shall cease
----------
to be in full force and effect, or any Guarantor or any Person acting by or on
behalf of such Guarantor shall deny or disaffirm such Guarantor's obligations
under the relevant Guaranty or any Guarantor shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to any Guaranty; or
10.09 Judgments. One or more judgments or decrees shall be entered
---------
against Holdings or any of its Subsidiaries involving a liability (to the extent
not paid or not fully covered by insurance) in excess of $5,000,000 for all such
judgments and decrees and all such judgments or decrees shall not have been
vacated, discharged or stayed or bonded pending appeal within 60 days from the
entry thereof; or
10.10 Ownership. A Change of Control Event shall have occurred;
---------
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Lenders, by written notice to the Borrowers, take any or
all of the following actions, without prejudice to the rights of any Agent or
any Lender to enforce its claims against any Guarantor or any Borrower, except
as otherwise specifically provided for in this Agreement (provided that if an
--------
Event of Default specified in Section 10.05 shall occur with respect to any
Borrower, the result which would occur upon the giving of written notice by the
Administrative Agent as specified in clauses (i), (ii) and (iii) below shall
occur automatically without the giving of any such notice): (i) declare the
Total Commitment terminated, whereupon the Commitment of each Lender shall
forthwith terminate immediately and any Commitment Fees shall forthwith become
due and payable without any other notice of any kind; (ii) declare the principal
of and any accrued interest in respect of all Loans and all Obligations owing
hereunder (including Unpaid Drawings) to be, whereupon the same shall become,
forthwith due and payable by the Borrowers without
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presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Credit Party; (iii) enforce, as Collateral Agent (or
direct the Collateral Agent to enforce), any or all of the Liens and security
interests created pursuant to the Security Documents; (iv) terminate any Letter
of Credit which may be terminated in accordance with its terms; (v) direct the
US Borrowers to pay (and the US Borrowers hereby agree upon receipt of such
notice, or upon the occurrence of any Event of Default specified in Section
10.05, to pay) to the Collateral Agent at the applicable Payment Office such
additional amounts of cash, to be held as security for the US Borrowers'
reimbursement obligations in respect of Letters of Credit then outstanding,
equal to the aggregate Stated Amount of all Letters of Credit then outstanding;
and (vi) apply any cash collateral as provided in Section 4.02.
SECTION 11. Definitions. As used herein, the following terms shall
-----------
have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular:
"A Euro Scheduled Repayment" shall have the meaning provided in
Section 4.02(b).
"A Euro Term Loan" shall have the meaning provided in Section 1.01(a).
"A Euro Term Loan Commitment" shall mean, with respect to each Lender,
the amount set forth opposite such Lender's name in Schedule I directly below
the column entitled "A Euro Term Loan Commitment," as the same may be terminated
pursuant to Sections 3.03 and/or 10.
"A Euro Term Loan Maturity Date" shall mean November 14, 2006.
"A Euro Term Note" shall have the meaning provided in Section 1.05(a).
"A Euro TL Percentage" shall mean, at any time, a fraction (expressed
as a percentage), the numerator of which is equal to the aggregate Principal
Amount of all A Euro Term Loans outstanding at such time, and the denominator of
which is equal to the sum of the aggregate Principal Amount of all Term Loans
outstanding at such time.
"Acquired Business" shall mean any Person or business, division or
product line acquired pursuant to a Permitted Acquisition.
"Acquired EBITDA" shall mean, for any Acquired Business for any
period, the Consolidated EBITDA as determined for such Acquired Business on a
basis substantially the same (with necessary reference changes) as provided in
the first sentence of the definition of Consolidated EBITDA contained herein
(without giving effect to the proviso thereto), except that (i) all references
therein and in the component definitions used in determining Consolidated EBITDA
to "RPP USA and its Subsidiaries" shall be deemed to be references to the
respective Acquired Business and (ii) the adjustments contained in clause (ii)
of the first sentence of the definition of Consolidated EBITDA shall not be
made. All calculations of Acquired EBITDA shall be made on a Pro Forma Basis
--- -----
(for such purpose treating (x) each reference to "Consolidated EBITDA" contained
in the definition of Pro Forma Basis as if it were a reference
--- -----
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to "Acquired EBITDA," (y) clause (v) of said definition as if same applied to a
determination of Acquired EBITDA for purposes of Section 9.11, and (z) the text
"the two fiscal quarters comprising the respective Test Period" appearing in
clause (v) of said definition as if same were a reference to "the trailing
twelve month period immediately preceding the respective Permitted Acquisition"
and disregarding subclauses (y) and (z) of clause (v) of said definition).
"Acquired Person" shall have the meaning provided in the definition of
Permitted Acquisition.
"Acquisition" shall have the meaning provided in Section 5.08(a).
"Acquisition Corp." shall mean RPP Holdings, LLC, a Delaware limited
liability company.
"Acquisition Corp. PIK Junior Subordinated Notes" shall mean unsecured
pay-in-kind junior subordinated promissory notes issued by Acquisition Corp. in
connection with the Transaction, all of which notes (i) shall not have any
maturities, amortizations, sinking fund payments or similar requirements prior
to November 14, 2012 and shall not be guaranteed or supported in any way by
Holdings (until same is assumed by Holdings as permitted by Section 9.12(iv)) or
by any Subsidiary of Holdings and (ii) shall have economic terms and conditions
and covenants, remedies, defaults and subordination provisions substantially
identical to the terms and conditions and the covenants, remedies, defaults and
subordination provisions contained in the Initial Holdings PIK Junior
Subordinated Notes (although (x) such terms and conditions and such other
provisions may be more favorable to Holdings and the Lenders and (y) the
interest rate thereon may be lower and the maturity thereof may be longer), and
with all of the other terms and conditions to be reasonably acceptable to the
Administrative Agent (unless such other terms and conditions are substantially
identical to those contained in the Initial Holdings PIK Junior Subordinated
Notes).
"Additional Security and Guaranty Documents" shall have the meaning
provided in Section 8.11.
"Adjusted Consolidated Net Income" for any period shall mean
Consolidated Net Income for such period plus, without duplication, (i) the sum
of the amount of all net non-cash charges (including, without limitation,
depreciation, amortization, deferred tax expense and non-cash interest expense
but excluding any net non-cash charges reflected in Adjusted Consolidated
Working Capital) and net non-cash losses which were included in arriving at
Consolidated Net Income for such period less (ii) the amount of all net non-cash
----
gains (exclusive of items reflected in Adjusted Consolidated Working Capital)
included in arriving at Consolidated Net Income for such period.
"Adjusted Consolidated Working Capital" at any time shall mean
Consolidated Current Assets (but excluding therefrom all cash and Cash
Equivalents) less Consolidated Current Liabilities.
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"Adjusted Excess Cash Flow" shall mean, for any period, the remainder
of (i) Excess Cash Flow for such period minus (ii) the product of (x) the
-----
aggregate amount of principal repayments of Loans to the extent (and only to the
extent) that such repayments were made as a voluntary prepayment pursuant to
Section 4.01 with internally generated funds (but in a case of a voluntary
prepayment of Revolving Loans or Swingline Loans, only to the extent accompanied
by a corresponding voluntary reduction to the Total Revolving Loan Commitment)
during such period multiplied by (y) (A) at any time the Applicable Excess Cash
----------
Flow Percentage then in effect is equal to 75%, 4/3, and (B) at any time the
Applicable Excess Cash Flow Percentage then is effect is equal to 50%, 2.
"Adjusted Senior Leverage Ratio" shall mean the Adjusted Total
Leverage Ratio, except that references to "Consolidated Debt" and "Adjusted
Total Leverage Ratio" therein shall instead be references to "Consolidated
Senior Debt" and "Adjusted Senior Leverage Ratio," respectively.
"Adjusted Total Leverage Ratio" shall mean, on any date, the ratio of
(i) Consolidated Debt on such date to (ii) Consolidated EBITDA for the Test
Period most recently ended on or prior to such date. All calculations of the
Adjusted Total Leverage Ratio shall be made on a Pro Forma Basis, with
--- -----
determinations of Adjusted Total Leverage Ratio to give effect to all
adjustments (including, without limitation, those specified in clauses (iv) and
(v)) contained in the definition of "Pro Forma Basis" contained herein.
--- -----
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to Section 12.10.
"Affected Loans" shall have the meaning provided in Section 4.02(j).
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by, or under direct or indirect common
control with such Person; provided, however, that (i) for purposes of Section
-------- -------
9.07 and except as otherwise provided in clause (ii) of this proviso, an
Affiliate of Holdings shall include any Person that directly or indirectly owns
more than 5% of any class of the capital stock of Holdings and any officer or
director of Holdings or any such Person, and (ii) Shell shall not be deemed to
be an Affiliate of Holdings and its Subsidiaries so long as Shell does not own
at any time an aggregate amount greater than 15% of the outstanding capital
stock of Holdings.
"Agent" shall mean, except as otherwise provided in Section 12, any or
all of the Administrative Agent, the Syndication Agent and the Documentation
Agent, as the context may require.
"Agreement" shall mean this Credit Agreement, as the same may be from
time to time modified, restated, amended and/or supplemented.
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"Apollo Group" shall mean Apollo Management IV, L.P., a Delaware
limited partnership and its Affiliates.
"Apollo Management Agreement" shall mean the management agreement,
dated as of November 14, 2000, between Apollo Management IV, L.P. and RPP USA,
as the same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.
"Applicable Commitment Fee Percentage" and "Applicable Margin"
initially shall mean a percentage per annum equal to (i) in the case of A Euro
Term Loans and Revolving Loans maintained as (x) Base Rate Loans, 2.00%, and (y)
Euro Rate Loans, 3.00%, (ii) in the case of B Term Loans maintained as (x) Base
Rate Loans, 2.75%, and (y) Eurodollar Loans, 3.75%, (iii) in the case of Dollar
Swingline Loans, 2.00%, (iv) in the case of Euro Swingline Loans, 3.00%, and (v)
in the case of the Commitment Fee, 0.50%. From and after each day of delivery
of any certificate delivered in accordance with the first sentence of the
following paragraph indicating a different margin than that described in the
immediately preceding sentence (each, a "Start Date") to and including the
applicable End Date described below, the Applicable Margin and/or the Applicable
Commitment Fee Percentage shall (subject to any adjustment pursuant to the
immediately succeeding paragraph) be that set forth below opposite the Total
Leverage Ratio indicated to have been achieved in any certificate delivered in
accordance with the following sentence:
- ------------------------------------------------------------------------------------------------------------------------------
Revolving
Loans and
Swingline
Loans Main-
A Euro Term tained as Base
Loans and Rate Loans,
Revolving and, as B Term Loans B Term Loans
Loans and provided in Maintained as Maintained as Applicable
Total Leverage Swingline Section 1.14, Eurodollar Base Commitment
Ratio Loans Main- Euro Loans Loans Rate Loans Fee
tained as Euro Maintained as
Rate Loans Base Rate
Loans
- ------------------------------------------------------------------------------------------------------------------------------
Greater than 3.00% 2.00% 3.75% 2.75% 0.500%
3.75:1.00
- ------------------------------------------------------------------------------------------------------------------------------
Less than or equal 2.75% 1.75% 3.75% 2.75% 0.500%
to 3.75:1.00 but
greater than
3.25:1.00
- ------------------------------------------------------------------------------------------------------------------------------
Less than or equal 2.50% 1.50% 3.75% 2.75% 0.375%
to 3.25:1.00 but
greater than
2.75:1.00
- ------------------------------------------------------------------------------------------------------------------------------
Less than or equal 2.25% 1.25% 3.50% 2.50% 0.375%
to 2.75:1.00
- ------------------------------------------------------------------------------------------------------------------------------
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The Total Leverage Ratio shall be determined based on the delivery of a
certificate of RPP USA by an Authorized Officer of RPP USA to the Administrative
Agent (with a copy to be sent by the Administrative Agent to each Lender),
within 45 days of the last day of any fiscal quarter of RPP USA, which
certificate shall set forth the calculation of the Total Leverage Ratio as at
the last day of the Test Period ended immediately prior to the relevant Start
Date (but determined on a Pro Forma Basis to give effect to any Permitted
--- -----
Acquisition or Subsidiary Redesignation effected on or prior to the date of the
delivery of such certificate) and the Applicable Margins and the Applicable
Commitment Fee Percentage which shall be thereafter applicable (until same are
changed or cease to apply in accordance with the following sentences); provided
--------
that at the time of the consummation of any Permitted Acquisition or Subsidiary
Redesignation or any issuance of Permitted Debt or Disqualified Preferred Stock,
an Authorized Officer of RPP USA shall deliver to the Administrative Agent a
certificate setting forth the calculation of the Total Leverage Ratio on a Pro
---
Forma Basis as of the last day of the last Calculation Period ended prior to the
- -----
date on which such Permitted Acquisition or Subsidiary Redesignation is
consummated or such Permitted Debt or Disqualified Preferred Stock is/are issued
for which financial statements have been made available (or were required to be
made available) pursuant to Section 8.01(b) or (c), as the case may be, and the
date of such consummation shall be deemed to be a Start Date and the Applicable
Margins and the Applicable Commitment Fee Percentage which shall be thereafter
applicable (until same are changed or cease to apply in accordance with the
following sentence) shall be based upon the Total Leverage Ratio as so
calculated. The Applicable Margins and the Applicable Commitment Fee Percentage
so determined shall apply, except as set forth in the succeeding sentence, from
the relevant Start Date to the earliest of (x) the date on which the next
certificate is delivered to the Administrative Agent, (y) the date on which the
next Permitted Acquisition or Subsidiary Redesignation is consummated or
Permitted Debt or Disqualified Preferred Stock is/are issued or (z) the date
which is 45 days following the last day of the Test Period in which the previous
Start Date occurred (such earliest date, the "End Date"), at which time, if no
certificate has been delivered to the Administrative Agent indicating an
entitlement to new Applicable Margins and/or Applicable Commitment Fee
Percentage (and thus commencing a new Start Date), the Applicable Margins and
the Applicable Commitment Fee Percentage shall be those set forth in the table
above determined as if the Total Leverage Ratio were greater than 3.75:1.00
(such Applicable Margins and/or Applicable Commitment Fee Percentage as so
determined, the "Highest Applicable Margins"). Notwithstanding anything to the
contrary contained above in this definition, (x) the Applicable Margins and the
Applicable Commitment Fee Percentage shall be the Highest Applicable Margins at
all times during which there shall exist any Default or Event of Default, and
(y) prior to the date of delivery of the financial statements pursuant to
Section 8.01(c) for the fiscal quarter ended June 30, 2001, in no event shall
the Applicable Margins and the Applicable Commitment Fee Percentage be less than
those described in the first sentence of this definition.
"Applicable Excess Cash Flow Percentage" shall mean, with respect to
any Excess Cash Flow Payment Date, 75%; provided that so long as no Default or
--------
Event of Default is then in existence, if on the last day of the relevant Excess
Cash Flow Payment Period, the Adjusted Total Leverage Ratio for the Test Period
then most recently ended (as established pursuant to the officer's certificate
delivered (or required to be delivered) pursuant to Section
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8.01(e)) (i) is less than 3.25:1.00 but greater than or equal to 2.75:1.00, then
the Applicable Excess Cash Flow Percentage shall instead be 50% or (ii) is less
than 2.75:1.00, then the Applicable Excess Cash Flow Percentage shall instead be
0%.
"Applicable Prepayment Percentage" shall mean, at any time, (i) for
purposes of Section 4.02(d), 100%, provided that if at any time the Adjusted
--------
Total Leverage Ratio is less than 3.25:1.00 (as established pursuant to the
officer's certificate last delivered (or required to be delivered) pursuant to
Section 8.01(e)), the Applicable Prepayment Percentage shall instead be 75%,
(ii) for purposes of Section 4.02(e), 100%, provided that, in the case of the
--------
issuance of unsecured Indebtedness only, if at any time the Adjusted Total
Leverage Ratio is less than 3.25:1.00 (as established pursuant to the officer's
certificate last delivered (or required to be delivered) pursuant to Section
8.01(e)), the Applicable Prepayment Percentage shall instead be 75%, and (iii)
for purposes of Section 4.02(f), 50%, provided that if at any time the Adjusted
--------
Total Leverage Ratio is less than 3.25:1.00 (as established pursuant to the
officer's certificate last delivered (or required to be delivered) pursuant to
Section 8.01(e)), the Applicable Prepayment Percentage shall instead be 0%.
Notwithstanding anything to the contrary in this definition, at any time that a
Default or an Event of Default is then in existence, the Applicable Prepayment
Percentage for purposes of (x) Sections 4.02(d) and (e) shall be 100% and (y)
Section 4.02(f) shall be 50%.
"Approved Currency" shall mean (i) in the case of the US Borrowers,
Dollars and, in the case of incurrences of Revolving Loans by the US Borrowers,
also Euros, (ii) in the case of the Dutch Borrower, Euros and, in the case of
incurrences of Revolving Loans or Swingline Loans by the Dutch Borrower, also
Dollars, and (iii) in the case of Letters of Credit, Dollars and Euros.
"Asset Sale" shall mean any sale, transfer or other disposition by
Holdings or any of its Subsidiaries to any Person other than Holdings or any
Wholly-Owned Subsidiary of Holdings of any asset (including, without limitation,
any capital stock or other securities of another Person, but excluding the sale
by such Person of its own capital stock) of Holdings or such Subsidiary other
than (i) sales, transfers or other dispositions of inventory made in the
ordinary course of business, (ii) dispositions or transfers arising out of, or
in connection with, the events described in clauses (i) and (ii) of the
definition of Recovery Event, (iii) any sale or other disposition of Cash
Equivalents in the ordinary course of business, (iv) any merger, consolidation
or liquidation permitted by Sections 9.02(g) and (h), (v) any transfer of assets
permitted pursuant to Section 9.02(e), (f) or (l), (vi) any transaction
permitted pursuant to Section 9.02(k), (vii) any sale permitted pursuant to
Section 9.02(o) and (viii) any other sales and dispositions that generate Net
Sale Proceeds of less than $750,000 in the aggregate in any fiscal year of RPP
USA.
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit L (appropriately
completed).
"Associated Costs" shall mean the cost imputed to each Lender of
compliance with (a) the cash ratios and special deposit requirements of the Bank
of England and/or the banking supervision or other costs imposed by the
Financial Services Authority, as determined in
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accordance with Schedule XI, and (b) any reserve asset requirements of the
European Central Bank.
"Authorized Officer" shall mean, with respect to (i) the delivery of
Notices of Borrowing, Notices of Conversion, Letter of Credit Requests and
similar notices, the chief financial officer, the chief operating officer, any
treasurer or other financial officer of the applicable Borrower, (ii) delivery
of financial information and officer's certificates pursuant to this Agreement,
the chief operating officer, the chief financial officer, any treasurer or other
financial officer of Holdings or RPP USA, as the case may be, and (iii) any
other matter in connection with this Agreement or any other Credit Document, any
officer (or a person or persons so designated by any two officers) of the
applicable Credit Party, in each case to the extent reasonably acceptable to the
Administrative Agent. For purposes of clause (i) above in this definition, US
Finance Corp., by its execution and delivery of this Agreement, irrevocably
appoints and authorizes an Authorized Officer of RPP USA from time to time as
its Authorized Officer to deliver such notices on its behalf.
"Available Basket Amount" shall mean, on any date of determination, an
amount equal to the sum of (i) $30,000,000 minus (ii) the aggregate amount of
-----
Investments made (including for such purpose the fair market value of any assets
contributed to any Joint Venture or Unrestricted Subsidiary (as determined in
good faith by senior management of Holdings), net of Indebtedness and, without
duplication, Capitalized Lease Obligations assigned to, and assumed by, the
respective Joint Venture or Unrestricted Subsidiary in connection therewith)
pursuant to Section 9.05(l) after the Effective Date, minus (iii) the aggregate
-----
amount of Indebtedness or other obligations (whether absolute, accrued,
contingent or otherwise and whether or not due) of any Joint Venture or
Unrestricted Subsidiary for which Holdings or any of its Subsidiaries (other
than the respective Joint Venture or Unrestricted Subsidiary) is liable, minus
-----
(iv) all payments made by Holdings or any of its Subsidiaries (other than the
respective Joint Venture or Unrestricted Subsidiary) in respect of Indebtedness
or other obligations of the respective Joint Venture or Unrestricted Subsidiary
(including, without limitation, payments in respect of obligations described in
preceding clause (iii)) after the Effective Date, plus (v) the amount of any
----
increase to the Available Basket Amount made after the Effective Date in
accordance with the provisions of Section 9.05(l), plus (vi) in the case of any
----
Subsidiary Redesignation, an amount equal to the lesser of (A) the aggregate
amount of all cash Investment theretofore made in the Unrestricted Subsidiary
subject to such Subsidiary Redesignation (less any increases in the Available
Basket Amount theretofore made in accordance with the provisions of Section
9.05(l) which were attributable to such Unrestricted Subsidiary) and (B) the
fair market value (as determined in good faith by RPP USA) of the assets of such
Unrestricted Subsidiary (net of all consolidated Indebtedness and other
consolidated obligations of such Unrestricted Subsidiary). In connection with
the foregoing, it is understood that the acquisition of an Acquired Person which
has ownership interests in one or more Joint Ventures, pursuant to a Permitted
Acquisition effected in accordance with the relevant requirements of this
Agreement shall not be deemed to constitute an Investment pursuant to Section
9.05(l) and the Available Basket Amount shall not be reduced as a result of the
payment of consideration owing to effect the Permitted Acquisition (although the
Available Basket Amount would be affected to the extent preceding clauses (iii)
or (iv) apply with respect to the Joint Venture so acquired or to the
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extent additional Investments are made in the respective Joint Venture pursuant
to Section 9.05(l)).
"B Lenders" shall have the meaning provided in Section 4.02(l).
"B Scheduled Repayment" shall have the meaning provided in Section
4.02(c).
"B Term Loan" shall have the meaning provided in Section 1.01(b).
"B Term Loan Commitment" shall mean, with respect to each Lender, the
amount set forth opposite such Lender's name in Schedule I directly below the
column entitled "B Term Loan Commitment," as the same may be terminated pursuant
to Sections 3.03 and/or 10.
"B Term Loan Maturity Date" shall mean November 14, 2008.
"B Term Note" shall have the meaning provided in Section 1.05(a).
"B TL Percentage" shall mean, at any time, a fraction (expressed as a
percentage), the numerator of which is equal to the aggregate Principal Amount
of all B Term Loans outstanding at such time, and the denominator of which is
equal to the sum of the aggregate Principal Amount of all Term Loans outstanding
at such time.
"Bankruptcy Code" shall have the meaning provided in Section 10.05.
"Base Rate" at any time shall mean the higher of (x) the rate which is
1/2 of 1% in excess of the Federal Funds Rate and (y) the Prime Lending Rate.
"Base Rate Loan" shall mean (i) each Dollar Swingline Loan and (ii)
each other Dollar Loan designated or deemed designated as such by the US
Borrowers or the Dutch Borrower, as the case may be, at the time of the
incurrence thereof or conversion thereto.
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrowing" shall mean and include (i) the borrowing of Swingline
Loans from the Swingline Lender on a given date and (ii) the borrowing of one
Type of Loan pursuant to a single Tranche by the US Borrowers or the Dutch
Borrower, as the case may be, from all of the Lenders having Commitments with
respect to such Tranche on a pro rata basis on a given date (or resulting from
--- ----
conversions on a given date), having in the case of Euro Rate Loans the same
Interest Period; provided that Base Rate Loans incurred pursuant to Section
--------
1.10(b) shall be considered part of any related Borrowing of Eurodollar Loans.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) or (iii) below, any day except Saturday, Sunday and any day which
shall be in New York City a legal holiday or a day on which banking institutions
are authorized or required by law or other government action to close, (ii) with
respect to all notices and determinations in connection with, and payments of
principal and interest on, Eurodollar Loans, any day which is a Business Day as
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described in clause (i) above and which is also a day for trading by and between
banks in U.S. dollar deposit in the interbank Eurodollar market, and (iii) with
respect to all notices and determinations in connection with, and payments of
principal and interest on, Euro Loans, any day which is a Business Day described
in clause (i) above and which is also (x) a day on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET) Payment System is
open and (y) not a day which in London, England shall be a legal holiday or a
day on which banking institutions are authorized or required by law or other
government action to close.
"Calculation Period" shall mean the period of four consecutive fiscal
quarters of RPP USA (taken as one accounting period) most recently ended prior
to the date of the respective Permitted Acquisition or Subsidiary Redesignation,
as the case may be.
"Capital Expenditures" shall mean, with respect to any Person, for any
period, all expenditures by such Person which should be capitalized in
accordance with GAAP during such period, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance and repairs which should be capitalized in accordance with GAAP)
and, without duplication, the amount of all Capitalized Lease Obligations
incurred by such Person during such period.
"Capital Lease," as applied to any Person, shall mean any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"Capitalized Lease Obligations" shall mean all obligations under
Capital Leases of RPP USA or any of its Subsidiaries, in each case taken at the
amount thereof accounted for as liabilities in accordance with GAAP.
"Cash Equivalents" shall mean, as to any Person, (i) Dollars and, in
the case of any Foreign Subsidiaries of RPP USA, Euros and such local currencies
held by them from time to time in the ordinary course of business, (ii)
securities issued or directly and fully guaranteed or insured by the United
States, Germany, Spain, Great Britain, Belgium and The Netherlands or any agency
or instrumentality thereof (provided that the full faith and credit of the
--------
respective country is pledged in support thereof) having maturities of not more
than six months from the date of acquisition, (iii) time deposits, certificates
of deposit, eurodollar time deposits and bankers' acceptances of any Lender or
any commercial bank having, or which is the principal banking subsidiary of a
bank holding company organized under the laws of the United States, any State
thereof, the District of Columbia or any foreign jurisdiction having capital,
surplus and undivided profits aggregating in excess of $250,000,000 and having a
long-term unsecured debt rating of at least "A" or the equivalent thereof from
S&P or "A2" or the equivalent thereof from Moody's, with maturities of not more
than six months from the date of acquisition by such Person, (iv) repurchase
agreements with a term of not more than 30 days, involving securities of the
types described in preceding clause (ii), and entered into with commercial banks
meeting the requirements of preceding clause (iii), (v) commercial paper issued
by any Person incorporated in the United States rated at least A-1 or the
equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody's
and in each case maturing not more than six months after the date of acquisition
by such Person, (vi) investments in money market funds substantially all of
whose
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assets are comprised of securities of the types described in clauses (ii)
through (v) above and (vii) overnight deposits and demand deposit accounts (in
the respective local currencies) maintained in the ordinary course of business.
"Change of Control Event" shall mean, (I) at any time prior to the
consummation of a Qualified IPO, (a) Apollo Group shall cease to own on a fully
diluted basis in the aggregate at least 35% of the economic and voting interest
in Holdings' capital stock (for such purpose excluding any Qualified Preferred
Stock and any Disqualified Preferred Stock, in each case to the extent same is
not Voting Stock) or (b) Apollo Group, together with the Management Participants
and other investors which own shares of Holdings Common Stock on the Initial
Borrowing Date (and/or other investors which will acquire such shares from
Apollo Group within 30 days after the Initial Borrowing Date and have been
identified to the Administrative Agent prior to the Initial Borrowing Date),
shall cease to own on a fully diluted basis in the aggregate at least a majority
of the outstanding Voting Stock of Holdings or (c) any Person or "group" (within
the meaning of Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934,
as in effect on the Effective Date), other than the Permitted Holders, shall (A)
have acquired, directly or indirectly, beneficial ownership on a fully diluted
basis of a percentage of the voting and/or economic interest in Holdings'
capital stock that exceeds the percentage of the voting and/or economic interest
in Holdings' capital stock then beneficially owned, directly or indirectly, on a
fully diluted basis by Apollo Group or (B) obtained the power (whether or not
exercised) to elect a majority of Holdings' directors or (d) the Board of
Directors of Holdings shall cease to consist of a majority of Continuing
Directors or (e) a "change of control" or similar event shall occur as provided
in any Senior Subordinated Note Document, any Holdings PIK Junior Subordinated
Note, the Holdings Contingent Seller Subordinated Note, Permitted Debt,
Disqualified Preferred Stock, Qualified Preferred Stock or the documentation
governing the same, to the extent the outstanding principal amount or
liquidation preference, as the case may be, of such Permitted Debt, Disqualified
Preferred Stock or Qualified Preferred Stock exceeds $10,000,000 or (II) at any
time after a Qualified IPO, (a) any Person or "group" (within the meaning of
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as in effect on
the Effective Date), other than the Permitted Holders, shall have acquired
beneficial ownership of 25% or more on a fully diluted basis of the voting
and/or economic interest in Holdings' capital stock and Apollo Group shall own
less than such Person or "group" on a fully diluted basis of the economic and
voting interest in Holdings' capital stock or (b) the Board of Directors of
Holdings shall cease to consist of a majority of Continuing Directors or (c) a
"change of control" or similar event shall occur as provided in any Senior
Subordinated Note Document, any Holdings PIK Junior Subordinated Note, the
Holdings Contingent Seller Subordinated Note or any Permitted Debt, Disqualified
Preferred Stock, Qualified Preferred Stock or the documentation governing the
same to the extent the outstanding principal amount or liquidation preference,
as the case may be, of such Existing Indebtedness, Permitted Debt, Disqualified
Preferred Stock or Qualified Preferred Stock exceeds $10,000,000 or (III) at any
time Holdings shall cease to own on a fully diluted basis 100% of the economic
and voting interest in RPP USA's membership interests or RPP USA shall cease to
own (either directly or through one or more Wholly-Owned Subsidiaries) on a
fully diluted basis 100% of the capital stock of the Dutch Borrower.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated thereunder. Section references to
the Code are to the
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Code, as in effect at the date of this Agreement and any subsequent provisions
of the Code, amendatory thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all property (whether real or personal,
movable or immovable) with respect to which any security interests have been
granted (or purported to be granted) pursuant to any Security Document,
including, without limitation, all Pledge Agreement Collateral, all Security
Agreement Collateral, all Mortgaged Property and all cash and Cash Equivalents
delivered as collateral pursuant to any Credit Document.
"Collateral Agent" shall mean Morgan Stanley & Co. Incorporated (or
another affiliate thereof) acting as collateral agent for the Secured Creditors.
"Commitment" shall mean any of the commitments of any Lender, i.e.,
----
whether the A Euro Term Loan Commitment, B Term Loan Commitment or the Revolving
Loan Commitment.
"Commitment Fee" shall have the meaning provided in Section 3.01(a).
"Commodity Agreement" shall mean any commodity futures contract,
commodity option or other similar agreement or arrangement entered into by RPP
USA or any Subsidiary of RPP USA designed to protect RPP USA or any of its
Subsidiaries against fluctuations in the price of the commodities at the time
used in the ordinary course of business of RPP USA or any of its Subsidiaries.
"Company" shall mean any corporation, limited liability company,
partnership or other business entity (or the adjectival form thereof, where
appropriate).
"Consolidated Current Assets" shall mean, at any time, the current
assets of RPP USA and its Subsidiaries at such time determined on a consolidated
basis.
"Consolidated Current Liabilities" shall mean, at any time, the
current liabilities of RPP USA and its Subsidiaries determined on a consolidated
basis, but excluding the current portion of, and accrued but unpaid interest on,
any Indebtedness under this Agreement and any other long-term Indebtedness which
would otherwise be included therein.
"Consolidated Debt" shall mean, at any time, the sum of (without
duplication) (i) all Indebtedness (other than take-or-pay obligations) of RPP
USA and its Subsidiaries as would be required to be reflected on the liability
side of a balance sheet of such Person in accordance with GAAP as determined on
a consolidated basis, (ii) all Indebtedness of RPP USA and its Subsidiaries of
the type described in clause (vii) of the definition of Indebtedness, (iii)
unreimbursed drawings on all letters of credit issued for the account of RPP USA
or any of its Subsidiaries and (iv) all Contingent Obligations of RPP USA and
its Subsidiaries in respect of Indebtedness of other Persons (i.e., Persons
----
other than RPP USA or any of its Subsidiaries) of the type referred to in
preceding clauses (i), (ii) and (iii) of this definition; provided that, for
--------
purposes of this definition, (x) the amount of Indebtedness in respect of
Interest Rate Protection Agreements and Other Hedging Agreements shall be at any
time the aggregate unrealized net loss position, if any, of RPP USA and/or its
Subsidiaries thereunder on a marked-to-market basis
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determined no more than one month prior to such time, (y) any Disqualified
Preferred Stock of Holdings shall be treated as Indebtedness of RPP USA, with an
amount equal to the greater of the liquidation preference or the maximum
mandatory fixed repurchase price of any such outstanding Disqualified Preferred
Stock deemed to be a component of Consolidated Debt and (z) the amount available
to be drawn under letters of credit issued for the account of RPP USA or any of
its Subsidiaries (other than unreimbursed drawings) shall be excluded in making
any determination of "Consolidated Debt".
"Consolidated EBIT" shall mean, for any period, the Consolidated Net
Income of RPP USA and its Subsidiaries for such period, determined on a
consolidated basis, before Consolidated Interest Expense (to the extent deducted
in arriving at Consolidated Net Income) and provision for taxes based on income
for such period, in each case that were included in arriving at Consolidated Net
Income for such period.
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT
for such period, adjusted by (A) adding thereto (in each case to the extent
deducted in determining Consolidated Net Income for such period and not already
added back in determining Consolidated EBIT) the amount of (without duplication)
(i) all amortization and depreciation and other non-cash items and (ii) any
management fees and consulting fees paid pursuant to, and in accordance with the
requirements of, clauses (c) and (g) of Section 9.07 during such period, in each
case that were deducted in arriving at Consolidated EBIT for such period, and
(B) subtracting therefrom the amount of all cash payments made in such period to
the extent that same relate to a non-cash item incurred in a previous period
which was added back to Consolidated EBITDA in such previous period pursuant to
clause (A)(i) above in this definition. Notwithstanding anything to the
contrary contained above, to the extent Consolidated EBITDA is to be determined
for any Test Period which ends on or prior to December 31, 2001, Consolidated
EBITDA for all portions of such period occurring prior to January 1, 2001 shall
be calculated in accordance with the definition of Test Period contained herein.
"Consolidated Interest Coverage Ratio" shall mean, for any period, the
ratio of Consolidated EBITDA to Consolidated Interest Expense for such period.
All calculations of the Consolidated Interest Coverage Ratio shall be made on a
Pro Forma Basis, with determinations of Consolidated Interest Coverage Ratio to
- --- -----
give effect to all adjustments (including, without limitation, those specified
in clauses (iv) and (v)) contained in the definition of "Pro Forma Basis"
--- -----
contained herein.
"Consolidated Interest Expense" shall mean, for any period, the total
consolidated interest expense of RPP USA and its Subsidiaries for such period
(calculated without regard to any limitations on the payment thereof) plus,
----
without duplication, (i) that portion of Capitalized Lease Obligations of RPP
USA and its Subsidiaries representing the interest factor for such period, and
capitalized interest expense, plus (ii) the product of (x) the amount of all
----
cash Dividend requirements (whether or not declared or paid) on Disqualified
Preferred Stock of Holdings paid, accrued or scheduled to paid or accrued during
such period multiplied by (y) a fraction, the numerator of which is one and the
denominator of which is one minus the then current effective consolidated
Federal, state, local and foreign income tax rate (expressed as a decimal number
between one and zero) of Holdings as would be required to be reflected in the
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audited consolidated financial statements of Holdings for its most recently
completed fiscal year (whether or not such financial statements are actually
prepared), which amounts described in preceding clause (ii) shall be treated as
interest expense of RPP USA and its Subsidiaries for purposes of this definition
regardless of the treatment of such amounts under GAAP, plus (iii) the aggregate
----
amount of all cash Dividends paid by RPP USA to Holdings for such period
pursuant to Section 9.06(b) to the extent that such Dividends were used to make
interest payments on any outstanding Holdings Shareholder Subordinated Notes, in
each case net of the total consolidated cash interest income of RPP USA and its
Subsidiaries for such period, but excluding the amortization of any deferred
financing costs or of any costs in respect of any Interest Rate Protection
Agreement. Notwithstanding anything to the contrary contained above, to the
extent Consolidated Interest Expense is to be determined for any Test Period
which ends prior to the first anniversary of the Initial Borrowing Date,
Consolidated Interest Expense for all portions of such period occurring prior to
the Initial Borrowing Date shall be calculated in accordance with the definition
of Test Period contained herein.
"Consolidated Net Income" shall mean, for any period, the remainder of
(A) the net after-tax income of RPP USA and its Subsidiaries determined on a
consolidated basis, without giving effect to (without duplication) (i) any
after-tax non-recurring gains or losses or after-tax items classified as
extraordinary gains or losses, any other non-recurring cash and non-cash
expenses incurred or payments made by RPP USA and its Subsidiaries in connection
with the Transaction, (ii) any transition expenses (including, without
limitation, severance expenses) incurred as a direct result of the transition of
RPP USA to an independent operating company in connection with the Transaction
(provided that with respect to any non-recurring transition expenses, RPP USA
shall have delivered to the Administrative Agent a certificate specifying and
quantifying such expenses and stating that same is a transition expense), (iii)
the establishment of accruals and reserves within twelve months of the Initial
Borrowing Date that are required to be so established in accordance with GAAP,
(iv) the Initial Net Income Adjustments incurred in such period and (v) gains
and losses from the sale or disposition of assets (other than sales or
dispositions of inventory, equipment, raw materials and supplies in the ordinary
course of business) by RPP USA and its Subsidiaries minus (B) the aggregate
amount of all Dividends paid by RPP USA to Holdings for such period pursuant to
Sections 9.06(b) (to the extent attributable to interest payments on any
outstanding Holdings Shareholder Subordinated Notes, (f) and (g) (in each case
to the extent that such amounts were not already deducted in determining the net
after-tax income of RPP USA and its Subsidiaries for such period); provided that
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the following items shall be excluded in computing Consolidated Net Income
(without duplication): (i) the net income or net losses of any Person in which
any other Person or Persons (other than RPP USA and its Wholly-Owned
Subsidiaries) has an equity interest or interests, except to the extent of the
amount of dividends or other distributions actually paid to RPP USA or such
Wholly-Owned Subsidiaries by such Person during such period, (ii) except for
determinations expressly required to be made on a Pro Forma Basis, the net
--- -----
income (or loss) of any Person accrued prior to the date it becomes a Subsidiary
or all or substantially all of the property or assets of such Person are
acquired by a Subsidiary and (iii) the net income of any Subsidiary to the
extent that the declaration or payment of dividends or similar distributions by
such Subsidiary of such net income is not at the time permitted by the operation
of the terms of its charter or any agreement,
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instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Subsidiary.
"Consolidated Senior Debt" shall mean, at any time, (x) Consolidated
Debt less (y) the sum of (i) the aggregate outstanding principal amount of the
----
Senior Subordinated Notes at such time, (ii) the aggregate principal amount of
all other subordinated debt incurred pursuant to Sections 9.04(f) and (o) and
outstanding at such time and otherwise included in Consolidated Debt and (iii)
the aggregate liquidation preference of all Disqualified Preferred Stock issued
pursuant to Section 9.13(c) and otherwise included in Consolidated Debt.
"Contingent Obligations" shall mean, as to any Person, any obligation
of such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(a) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (b) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (d) otherwise to assure or hold harmless the owner of
such primary obligation against loss in respect thereof; provided, however, that
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the term Contingent Obligation shall not include endorsements of instruments for
deposit or collection or standard contractual indemnities entered into, in each
case in the ordinary course of business. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.
"Continuing Directors" shall mean the directors of Holdings on the
Initial Borrowing Date and each other director if such director's nomination for
the election to the Board of Directors of Holdings is recommended by a majority
of the then Continuing Directors.
"Credit Documents" shall mean this Agreement, the Notes, each Guaranty
and each Security Document.
"Credit Event" shall mean the making of a Loan (other than a Revolving
Loan made pursuant to a Mandatory Borrowing) or the issuance of a Letter of
Credit.
"Credit Party" shall mean, collectively, each US Credit Party and each
Foreign Credit Party.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
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"Defaulting Lender" shall mean any Lender with respect to which a
Lender Default is in effect.
"Disqualified Preferred Stock" shall mean any Preferred Stock of
Holdings other than Qualified Preferred Stock.
"Dividend" shall have the meaning provided in Section 9.06.
"Documentation Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Documents" shall mean and include (i) the Credit Documents, (ii) the
Equity Financing Documents, (iii) the Recapitalization Documents, (iv) the
Senior Subordinated Note Documents, (v) the Initial Holdings PIK Junior
Subordinated Notes, and (vi) all other documents, agreements and instruments
executed in connection with the Transaction.
"Dollar Equivalent" shall mean, at any time for the determination
thereof, (i) except as provided in clause (ii) of this definition, the amount of
Dollars which could be purchased with the amount of Euros (or any other foreign
currency, as applicable) involved in such computation at the spot exchange rate
therefor as quoted by the Administrative Agent as of 11:00 A.M. (Local time) on
the date two Business Days prior to the date of any determination thereof for
purchase on such date and (ii) for purposes of Section 15.07(e), the amount of
Dollars which could be purchased with the amount of Euros involved in such
computation at the spot exchange rate therefor as quoted or utilized by the
respective Letter of Credit Issuer on the date of any determination thereof for
purchase on such day.
"Dollar Loan" shall mean all Loans denominated in Dollars.
"Dollar Revolving Loan" shall mean each Revolving Loan denominated in
Dollars.
"Dollar Swingline Loan" shall mean each Swingline Loan denominated in
Dollars.
"Dollars" and the sign "$" shall each mean freely transferable lawful
money of the United States.
"Domestic Subsidiary" shall mean each Subsidiary of Holdings (other
than the US Borrowers) incorporated or organized in the United States or any
State.
"Dutch Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"Dutch Borrower Revolving Loan Sublimit" shall mean (Euro)90,000,000.
"Dutch Guaranteed Obligations" shall mean (i) the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of the principal and interest on
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each Note issued by, and all Loans made to, the Dutch Borrower under this
Agreement, together with all the other obligations (including obligations which,
but for the automatic stay under Section 362(a) of the Bankruptcy Code, would
become due) and liabilities (including, without limitation, indemnities, fees
and interest (including any interest accruing after the commencement of any
bankruptcy, insolvency, receivership or similar proceeding at the rate provided
for herein, whether or not such interest is an allowed claim in any such
proceeding) thereon) of the Dutch Borrower to the Lenders, the Agents and the
Collateral Agent now existing or hereafter incurred under, arising out of or in
connection with this Agreement and each other Credit Document to which the Dutch
Borrower is a party and the due performance and compliance by the Dutch Borrower
with all the terms, conditions and agreements contained in this Agreement and in
each such other Credit Document and (ii) the full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of all
obligations (including obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due), liabilities and
indebtedness (including any interest accruing after the commencement of any
bankruptcy, insolvency, receivership or similar proceeding at the rate provided
for herein, whether or not such interest is an allowed claim in any such
proceeding) of the Dutch Borrower owing under any Interest Rate Protection
Agreement or Other Hedging Agreement entered into by the Dutch Borrower with any
Lender or any affiliate thereof (even if such Lender subsequently ceases to be a
Lender under this Agreement for any reason) so long as such Lender or affiliate
participates in such Interest Rate Protection Agreement or Other Hedging
Agreement and their subsequent assigns, if any, whether now in existence or
hereafter arising, and the due performance and compliance with all terms,
conditions and agreements contained therein.
"Dutch Lender" shall mean any Lender incorporated, maintaining its
lending office or otherwise doing business in The Netherlands.
"Dutch Parent" shall mean Resolution Holdings B.V., a private limited
liability company organized under the laws of The Netherlands.
"Effective Date" shall have the meaning set forth in Section 15.10.
"Eligible Transferee" shall mean and include a commercial bank,
insurance company, mutual fund, financial institution, a finance company, a
"qualified institutional buyer" (as defined in Rule 144A of the Securities Act),
any fund that invests in bank loans or any other "accredited investor" (as
defined in Regulation D of the Securities Act) (other than an individual).
"EMU Legislation" shall mean the legislative measures of the European
Union for the introduction of, changeover to or operation of a single or unified
European currency.
"End Date" shall have the meaning provided in the definition of
"Applicable Commitment Fee Percentage" and "Applicable Margin."
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of non-compliance or
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violation, investigations or proceedings relating in any way to any violation
(or alleged violation) by Holdings or any of its Subsidiaries under any
Environmental Law (hereafter "Claims") or any permit issued to Holdings or any
of its Subsidiaries under any such Environmental Law, including, without
limitation, (a) any and all Claims by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law, and (b) any and all Claims by any
third party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief resulting from Hazardous Materials or arising
from alleged injury or threat of injury to health, safety or the environment.
"Environmental Law" shall mean any federal, state, provincial, foreign
or local policy, statute, law, rule, regulation, ordinance, code or rule of
common law now or hereafter in effect and in each case as amended, and any
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment (for purposes of this
definition (collectively, "Laws")), relating to the environment, or Hazardous
Materials or health and safety to the extent such health and safety issues arise
under the Occupational Safety and Health Act of 1970, as amended, or any such
similar Laws.
"Equity Financing" shall have the meaning provided in Section 5.08(b).
"Equity Financing Documents" shall mean the documents and agreements
entered into in connection with the Equity Financing.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at
the date of this Agreement and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with Holdings or a Subsidiary of Holdings would be
deemed to be a "single employer" within the meaning of Section 414(b), (c), (m)
or (o) of the Code.
"EURIBOR" shall mean, for each Interest Period applicable to any Euro
Loan (other than Euro Swingline Loans), (i) the per annum rate for deposits in
Euros as determined by the Administrative Agent for a period corresponding to
the duration of the relevant Interest Period which appears on Reuters Page
EURIBOR-01 at approximately 11:00 A.M. (Brussels time) on the date which is two
Business Days prior to the commencement of such Interest Period (or, in the case
of Interest Periods commencing on the Initial Borrowing Date, on the Initial
Borrowing Date) or (ii) if such rate is not shown on Reuters Page EURIBOR-01,
the average offered quotation to four prime banks in the Euro-zone interbank
market by the Administrative Agent for Euro deposits of amounts comparable to
the principal amount of the Loan for which an interest rate is then being
determined with maturities comparable to the Interest Period to be applicable to
such Loan (rounded upward to the next whole multiple of 1/16 of 1%), determined
as of 11:00 A.M. (Brussels time) on the date which is two Business Days prior to
the commencement of such Interest Period (or, in the case of Interest Periods
commencing on the Initial
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Borrowing Date, on the Initial Borrowing Date). The reference to Reuters Page
EURIBOR-01 in this definition shall be construed to be a reference to the
relevant page or any other page that may replace such page on the Reuters
service. Notwithstanding anything to the contrary contained above, in the event
the Administrative Agent has made any determination pursuant to Section
1.10(a)(i) in respect of Euro Loans (other than Euro Swingline Loans), or in the
circumstances described in clause (i) to the proviso to Section 1.10(b) in
respect of Euro Loans (other than Euro Swingline Loans), EURIBOR determined
pursuant to this definition shall instead be the rate determined by the
Administrative Agent as the all-in-cost of funds for the Administrative Agent to
fund a Euro Loan (other than Euro Swingline Loans) with maturities comparable to
the Interest Period applicable thereto.
"Euro" shall mean the single currency of the participating member
states as described in any EMU Legislation.
"Euro Equivalent" shall mean, at any time for the determination
thereof, the amount of Euros which could be purchased with the amount of Dollars
involved in such computation at the spot rate of exchange therefor as quoted by
the Administrative Agent as of 11:00 a.m. (Local time) on the date two Business
Days prior to the date of any determination thereof for purchase on such date
(or, in the case of any determination pursuant to Section 1.14 or 15.19 or
Section 29 of the Foreign Subsidiaries Guaranty (or any analogous provision in
any other Guaranty), on the date of determination).
"Euro Loan" shall mean each Loan denominated in Euros.
"Euro Rate" shall mean (i) with respect to Dollar Loans, the
Eurodollar Rate, (ii) with respect to Euro Loans (other than Euro Swingline
Loans), EURIBOR and (iii) with respect to Euro Swingline Loans, the Overnight
Euro Rate.
"Euro Rate Loan" shall mean, collectively, each Eurodollar Loan and
each Euro Loan.
"Euro Revolving Loan" shall mean each Revolving Loan denominated in
Euros.
"Euro Swingline Loan" shall mean each Swingline Loan denominated in
Euros.
"Eurodollar Loans" shall mean each Dollar Loan (excluding Dollar
Swingline Loans) designated as such by the US Borrowers at the time of the
incurrence thereof or conversion thereto.
"Eurodollar Rate" shall mean (a) relative to any Interest Period for a
Borrowing of a Eurodollar Loan, (i) the interest rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) for deposits in Dollars for a
period equal to the relevant Interest Period which appears on Telerate Page 3750
(or any successor page) at approximately 11:00 A.M. (London time) on the date
which is two Business Days prior to the commencement of such Interest Period for
a term comparable to such Interest Period, (ii) to the extent that an interest
rate is not ascertainable pursuant to preceding clause (i), the interest rate
per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) for
deposits in Dollars for a period equal to the relevant
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Interest Period which appears on Reuters Screen LIBO Page (or any successor
page) (or, if more than one such rate appears on such page, the arithmetic mean
of all such rates) at approximately 11:00 A.M. (London time) on the date which
is two Business Days prior to the commencement of such Interest Period for a
term comparable to such Interest Period or (iii) to the extent that an interest
rate is not ascertainable pursuant to preceding clause (i) or (ii), the
arithmetic average (rounded upwards, if necessary, to the nearest 1/100 of 1%)
of the offered quotation to first-class banks in the London interbank Eurodollar
market by the Administrative Agent for Dollar deposits of amounts in immediately
available funds comparable to the outstanding principal amount of the Eurodollar
Loan of the Administrative Agent with terms comparable to the Interest Period
applicable to such Eurodollar Loan commencing two Business Days thereafter as of
11:00 A.M. (London time) on the date which is two Business Days prior to the
commencement of such Interest Period, divided (in any case) by (b) a percentage
equal to 100% minus the then stated maximum rate of all reserve requirements
(including, without limitation, any marginal, emergency, supplemental, special
or other reserves required by applicable law) applicable to any member bank of
the Federal Reserve System in respect of Eurocurrency funding or liabilities as
defined in Regulation D (or any successor category of liabilities under
Regulation D).
"Euro-zone" shall mean the region composed of the member states as
described in any EMU Legislation.
"Event of Default" shall have the meaning provided in Section 10.
"Excess Cash Flow" shall mean, for any period, the remainder of (a)
the sum of (i) Adjusted Consolidated Net Income for such period, and (ii) the
decrease, if any, in Adjusted Consolidated Working Capital from the first day to
the last day of such period, minus (b) the sum of (i) the amount of Capital
-----
Expenditures made by RPP USA and its Subsidiaries on a consolidated basis during
such period pursuant to and in accordance with Sections 9.11(a), (b) and (f),
except to the extent financed with the proceeds of Indebtedness (other than the
proceeds of Revolving Loans or Swingline Loans) or pursuant to Capitalized Lease
Obligations, (ii) the aggregate amount of permanent principal payments of
Indebtedness for borrowed money of RPP USA and its Subsidiaries and the
permanent repayment of the principal component of Capitalized Lease Obligations
of RPP USA and its Subsidiaries (excluding (1) payments with proceeds of asset
sales, (2) payments with the proceeds of Indebtedness or equity and (3) payments
of Loans or other Obligations, provided that repayment of Loans shall be
deducted in determining Excess Cash Flow if such payments were required as a
result of a Scheduled Repayment under Section 4.02(b) or (c)) during such
period, (iii) the increase, if any, in Adjusted Consolidated Working Capital
from the first day to the last day of such period and (iv) without duplication
of amounts deducted in the preceding clauses (b)(i), (ii) and (iii), the amount
of cash expended in respect of Permitted Acquisitions during such period, except
to the extent financed with Indebtedness or equity.
"Excess Cash Flow Payment Date" shall mean the date occurring 90 days
after the last day of a fiscal year of RPP USA (beginning with RPP USA's fiscal
year ending on December 31, 2001).
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"Excess Cash Flow Payment Period" shall mean, (i) with respect to the
repayment required on the first Excess Cash Flow Payment Date, the period from
the Initial Borrowing Date to December 31, 2001, and (ii) with respect to the
repayment required on each successive Excess Cash Flow Payment Date, the
immediately preceding fiscal year of RPP USA.
"Exchange Percentage" shall mean, as to each Lender, a fraction,
expressed as a decimal, of which (a) the numerator shall be the sum of (i) the
aggregate outstanding Principal Amount of the Loans owed to such Lender and (ii)
the LC Exposure of such Lender, in each case immediately prior to the date of
the respective Sharing Event, and (b) the denominator shall be the sum of (i)
the aggregate outstanding Principal Amount of the Loans owed to all the Lenders
and (ii) the aggregate LC Exposure of all the Lenders, in each case immediately
prior to the date of the respective Sharing Event.
"Exchange Senior Subordinated Notes" shall mean Senior Subordinated
Notes which are substantially identical securities to the Senior Subordinated
Notes issued on or prior to the Initial Borrowing Date, which Exchange Senior
Subordinated Notes shall be issued pursuant to a registered exchange offer or
private exchange offer for the Senior Subordinated Notes and pursuant to the
Senior Subordinated Notes Indenture. In no event will the issuance of any
Exchange Senior Subordinated Notes increase the aggregate principal amount of
Senior Subordinated Notes then outstanding or otherwise result in an increase in
an interest rate applicable to the Senior Subordinated Notes.
"Existing Indebtedness" shall have the meaning provided in Section
7.21.
"Existing Indebtedness Agreements" shall have the meaning provided in
Section 5.13.
"Existing Japanese Joint Venture" shall mean Japan Epoxy Resins Co.,
Ltd., a company organized under the laws of Japan and jointly owned by the Dutch
Parent and Mitsubishi Chemical Corporation.
"Existing Management" shall mean existing management of Holdings
and/or RPP USA on the Initial Borrowing Date who have provided a portion of the
Equity Financing and are, in any event, reasonably acceptable to the Agents.
"Existing Shell Intercompany Note" shall have the meeting providing in
Section 5.08(a).
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"Federal Funds Rate" shall mean, for any period, a fluctuating
interest rate equal for each day during such period to 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 for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received
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by the Administrative Agent from three Federal Funds brokers of recognized
standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to, or referred to in,
Section 3.01.
"Foreign Credit Party" shall mean the Dutch Borrower, the Dutch
Parent, each other Foreign Subsidiary of Holdings that has executed the Foreign
Subsidiaries Guaranty and/or a Security Document on the Initial Borrowing Date
and any other Wholly-Owned Foreign Subsidiary of Holdings that is required to
enter into any Credit Document pursuant to Sections 8.11 and/or 8.12.
"Foreign Mortgaged Property" shall mean any Mortgaged Property located
outside the United States or any State thereof.
"Foreign Pension Plan" means any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by Holdings or any one or more
of its Subsidiaries primarily for the benefit of employees of Holdings or any of
its Subsidiaries residing outside the United States of America, which plan, fund
or other similar program provides, or results in, retirement income, a deferral
of income in contemplation of retirement or payments to be made upon termination
of employment, and which plan is not subject to ERISA or the Code.
"Foreign Subsidiaries Guaranty" shall have the meaning provided in
Section 5.11(b).
"Foreign Subsidiary" shall mean, as to any Person, each Subsidiary of
such Person which is not a Domestic Subsidiary.
"Foreign Unrestricted Subsidiary" shall mean each Unrestricted
Subsidiary that is incorporated under the laws of any jurisdiction other than
the United States or any State thereof.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time; it being understood and
agreed that determinations in accordance with GAAP for purposes of Section 9,
including defined terms as used therein, are subject (to the extent provided
therein) to Section 15.07(a).
"Gross-Up Amount" shall have the meaning provided in Section 4.04(a).
"Guaranteed Creditors" shall mean and include each of the
Administrative Agent, the Collateral Agent, the Letter of Credit Issuers, the
Lenders and each party (other than any Credit Party) party to an Interest Rate
Protection Agreement or Other Hedging Agreement to the extent such party
constitutes a Secured Creditor under the Security Documents.
"Guaranteed Obligations" shall mean, collectively, the Dutch
Guaranteed Obligations and the US Guaranteed Obligations.
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"Guaranties" shall mean and include each of the Holdings Guaranty, the
US Borrowers Guaranty, the US Subsidiaries Guaranty, the Foreign Subsidiaries
Guaranty and each guaranty entered into pursuant to Section 8.11, 8.12 or 8.14.
"Guarantors" shall mean and include each of Holdings, the US Borrowers
(in their capacity as a guarantor under Section 14) and the Subsidiary
Guarantors.
"Hazardous Materials" shall mean (a) any petrochemical or petroleum
products, radioactive materials, asbestos in any form that is friable, urea
formaldehyde foam insulation, transformers or other equipment that contain
dielectric fluid containing levels of polychlorinated biphenyls, and radon gas;
and (b) any chemicals, materials or substances defined as or included in the
definition of "hazardous substances," "hazardous wastes," "hazardous materials,"
"restricted hazardous materials," "extremely hazardous wastes," "restrictive
hazardous wastes," "toxic pollutants," "contaminants" or "pollutants" under any
Environmental Law, or words of similar meaning and regulatory effect.
"Holdings" shall have the meaning provided in the first paragraph of
this Agreement.
"Holdings Common Stock" shall have the meaning provided in Section
7.13.
"Holdings Contingent Seller Subordinated Note" shall mean the
unsecured 8% Contingent Subordinated Note due December 31, 2007 issued by
Holdings to Shell Petroleum N.V. on the Initial Borrowing Date in accordance
with the terms of the Master Sale Agreements (which note shall not be guaranteed
or supported in any way by any Subsidiary of Holdings).
"Holdings Guaranty" shall mean the guaranty of Holdings pursuant to
Section 13.
"Holdings PIK Junior Subordinated Notes" shall mean the Initial
Holdings PIK Junior Subordinated Notes and the New Holdings PIK Junior
Subordinated Notes.
"Holdings Shareholder Subordinated Note" shall mean an unsecured
junior subordinated note issued by Holdings (and not guaranteed or supported in
any way by any Subsidiary of Holdings) in the form of Exhibit M.
"Indebtedness" of any Person shall mean, without duplication, (i) all
indebtedness of such Person for borrowed money, (ii) the deferred purchase price
of assets or services payable to the sellers thereof or any of such seller's
assignees which in accordance with GAAP would be shown on the liability side of
the balance sheet of such Person but excluding deferred rent as determined in
accordance with GAAP, (iii) the face amount of all letters of credit issued for
the account of such Person and, without duplication, all drafts drawn
thereunder, (iv) all Indebtedness of a second Person secured by any Lien on any
property owned by such first Person, whether or not such Indebtedness has been
assumed, (v) all Capitalized Lease Obligations of such Person, (vi) all
obligations of such Person to pay a specified purchase price for goods or
services whether or not delivered or accepted, i.e., take-or-pay and similar
----
obligations, (vii) all obligations under Interest Rate Protection Agreements and
Other Hedging Agreements and (viii) all Contingent
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Obligations of such Person, provided that Indebtedness shall not include trade
--------
payables and accrued expenses, in each case arising in the ordinary course of
business.
"Initial Borrowing Date" shall mean the date upon which the initial
Borrowing of Loans occurs.
"Initial Holdings PIK Junior Subordinated Notes" shall mean the 10.9%
pay-in-kind unsecured junior subordinated promissory notes issued by Holdings as
part of the Transaction, as well as pursuant to Section 8.19, all of which notes
shall not have any maturities, amortizations, sinking fund payments or similar
requirements prior to November 14, 2012 and shall not be guaranteed or supported
in any way by any Subsidiary of Holdings
"Initial Net Income Adjustments" shall mean, with respect to any
portion of any Test Period ended from and after January 1, 2001 and prior to the
18 month anniversary of the Initial Borrowing Date, all adjustments as, and to
the extent, used in connection with the calculation of "pro forma EBITDA" and
"Adjusted EBITDA" as set forth in the pro forma financial statements in the
--- -----
Offering Memorandum to the extent such adjustments are not fully reflected in
such Test Period and continue to be applicable; provided that the aforementioned
adjustments shall be made in determining Consolidated Net Income for Holdings'
fiscal quarter ended on September 30, 2000 to the extent that, after giving
effect to such adjustment, Consolidated EBITDA for such fiscal quarter is higher
than the scheduled amount for such fiscal quarter set forth in the definition of
Test Period contained herein.
"Intercompany Loan" shall have the meaning provided in Section
9.05(f).
"Intercompany Notes" shall mean promissory notes, in the form of
Exhibit N, evidencing Intercompany Loans.
"Interest Determination Date" shall mean, with respect to any Euro
Rate Loan (other than a Euro Swingline Loan), the second Business Day prior to
the commencement of any Interest Period relating to such Euro Rate Loan.
"Interest Period" shall have the meaning provided in Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest
rate hedging agreement or other similar agreement or arrangement.
"Investment" shall have the meaning provided in the preamble to
Section 9.05.
"IT Capital Expenditures" shall mean all Capital Expenditures made for
the development, improvement and/or repair of RPP USA's and its Subsidiaries'
information technology systems.
"Joint Venture" shall mean any Person, other than an individual or a
Wholly-Owned Subsidiary RPP USA, (i) in which RPP USA or any of its Subsidiaries
holds or acquires
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an ownership interest (whether by way of capital stock, partnership or limited
liability company interest, or other evidence of ownership) and (ii) which is
engaged in a Permitted Business.
"Judgment Currency" shall have the meaning provided in Section
15.19(a).
"Judgment Currency Conversion Date" shall have the meaning provided in
Section 15.19(a).
"LC Exposure" shall mean, at any time, the sum of (i) the aggregate
Stated Amount of all outstanding Letters of Credit and (ii) the aggregate amount
of all Unpaid Drawings that have not yet been reimbursed by or on behalf of the
US Borrowers at such time.
"LC Reserve Account" shall have the meaning provided in Section
1.14(g).
"L/C Supportable Indebtedness" shall mean obligations of RPP USA or
its Wholly-Owned Subsidiaries incurred in the ordinary course of business and
otherwise permitted to exist pursuant to the terms of this Agreement (but
excluding, in any event, all Indebtedness permitted pursuant to Sections
9.04(f), (g), (h), (i), (m) and (o) (which, in the case of such clause (o),
constitutes (x) Permitted Subordinated Indebtedness and (y) to the extent the
creditors extending the Overdraft Line are entitled to the benefits of the
Security Documents, the Overdraft Line).
"Leasehold" of any Person shall mean all of the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Lender" shall have the meaning provided in the first paragraph of
this Agreement.
"Lender Default" shall mean (i) the refusal (which has not been
retracted) of a Lender to make available its portion of any Borrowing (including
a Mandatory Borrowing) or to fund its portion of any unreimbursed payment under
Section 2.03 or (ii) a Lender having notified the Administrative Agent and/or
any Borrower that it does not intend to comply with the obligations under
Section 1.01(a), 1.01(b), 1.01(c) or 2.03, in the case of either clause (i) or
(ii) above as a result of the appointment of a receiver or conservator with
respect to such Lender at the direction or request of any regulatory agency or
authority.
"Letter of Credit" shall have the meaning provided in Section 2.01(a).
"Letter of Credit Fees" shall have the meaning provided in Section
3.01(b).
"Letter of Credit Issuer" shall mean Salomon and any other Lender
which, at the request of the US Borrowers and with the consent of the
Administrative Agent, agrees in such Lender's sole discretion to become a Letter
of Credit Issuer for purposes of issuing Letters of Credit pursuant to Section
2.
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"Letter of Credit Outstandings" shall mean, at any time, the sum of,
without duplication, (i) the aggregate Stated Amount of all outstanding Letters
of Credit and (ii) the aggregate amount of all Unpaid Drawings in respect of all
Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in Section
2.02(a).
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien, hypothec or charge of any kind (including any agreement to
give any of the foregoing, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the UCC or
any similar recording or notice statute, and any lease having substantially the
same effect as the foregoing).
"Loan" shall mean each Term Loan, each Revolving Loan and each
Swingline Loan.
"Local time" shall mean the local time in effect at (x) the applicable
Notice Office in the case of Notices of Borrowings, Notices of Conversion and
Letter of Credit Requests and (y) the applicable Payment Office in the case of
all payments and disbursements of Loans or Letters of Credit.
"Majority Lenders" of any Tranche shall mean those Non-Defaulting
Lenders which would constitute the Required Lenders under, and as defined in,
this Agreement if all outstanding Obligations under the other Tranches under
this Agreement were repaid in full and all Commitments with respect thereto were
terminated.
"Management Agreements" shall have the meaning provided in Section
5.13.
"Management Participants" shall mean members of senior management of
Holdings and its Subsidiaries acceptable to the Agents.
"Management Shares" shall have the meaning provided in Section
5.08(a).
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(e).
"Margin Stock" shall have the meaning provided in Regulation U.
"Master Sale Agreements" shall mean, collectively, (x) the Master Sale
Agreement, dated July 10, 2000 among Shell, Acquisition Corp. and Holdings, and
(y) the Sale Agreement, dated September 11, 2000 among Shell Petroleum N.V., a
public limited liability company incorporated under the laws of the Netherlands,
and the Dutch Parent, each as amended as of the Initial Borrowing Date.
"Material Adverse Effect" shall mean a material adverse effect on the
business, properties, assets, liabilities, condition (financial or otherwise) or
prospects of (i) RPP USA and its Subsidiaries taken as a whole or Holdings and
its Subsidiaries taken as a whole and (ii) in the case of any condition or
representation and warranty to be satisfied or made, as the case may be, on the
Initial Borrowing Date, the Resins Business.
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"Material Rolling Stock" shall have the meaning provided in the US
Security Agreement.
"Material Tractor Trailer" shall have the meaning provided in the US
Security Agreement.
"Maturity Date," with respect to any Tranche of Loans, shall mean the
A Euro Term Loan Maturity Date, the B Term Loan Maturity Date, the Revolving
Loan Maturity Date or the Swingline Expiry Date, as the case may be.
"Maximum Permitted Acquisition Leverage Ratio" shall mean, at any
time, the maximum Adjusted Total Leverage Ratio which may exist pursuant to
Section 9.10 without giving rise to a Default or an Event of Default at such
time, adjusted by reducing the ratio appearing in such maximum Adjusted Total
Leverage Ratio by 0.25.
"Maximum Permitted Consideration" shall mean, with respect to any
Permitted Acquisition, the sum (without duplication) of (i) the aggregate
liquidation preference of Preferred Stock issued by Holdings as consideration in
connection with such Permitted Acquisition, (ii) the aggregate principal amount
of Permitted Acquired Debt acquired or assumed by Holdings or any of its
Subsidiaries in connection with such Permitted Acquisition, (iii) the aggregate
principal amount of all cash paid (or to be paid) by Holdings or any of its
Subsidiaries in connection with such Permitted Acquisition (including payments
of fees and costs and expenses in connection therewith), (iv) the aggregate
principal amount of all other Indebtedness assumed, incurred and/or issued in
connection with such Permitted Acquisition to the extent permitted by Section
9.04 and (v) the fair market value (determined in good faith by senior
management of Holdings) of all other consideration payable in connection with
such Permitted Acquisition (other than Holdings Common Stock).
"Maximum Swingline Amount" shall mean $15,000,000.
"Minimum Borrowing Amount" shall mean (i) in the case of B Term Loans,
$5,000,000, (ii) in the case of A Euro Term Loans, (Euro)5,000,000, (iii) in the
case of Dollar Revolving Loans, $2,000,000, (iv) in the case of Euro Revolving
Loans, (Euro)2,000,000, (v) in the case of Dollar Swingline Loans, $500,000, and
(vi) in the case of Euro Swingline Loans, (Euro)500,000.
"Moody's" shall mean Moody's Investors Service, Inc.
"Morgan Guaranty" shall mean Morgan Guaranty Trust Company of New York
in its individual capacity and any successor thereto.
"Mortgage" shall mean a mortgage, leasehold mortgage, deed of trust,
leasehold deed of trust, deed to secure debt, leasehold deed to secure debt or
similar security instrument.
"Mortgage Policy" shall mean a mortgage title insurance policy or a
binding commitment with respect thereto.
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"Mortgaged Property" shall mean any Real Property owned or leased by a
Credit Party which is encumbered (or required to be encumbered) by a Mortgage.
"MSSF" shall mean Morgan Stanley Senior Funding, Inc. in its
individual capacity and any successor thereto.
"Multiemployer Plan" shall mean any multiemployer plan as defined in
Section 4001(a)(3) of ERISA and which is a pension plan as defined in Section
3(2) of ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) Holdings, a Subsidiary of Holdings or an ERISA
Affiliate, and each such plan for the five-year period immediately following the
latest date on which Holdings, a Subsidiary of Holdings or an ERISA Affiliate
maintained, contributed to or had an obligation to contribute to such plan.
"NAIC" shall mean the National Association of Insurance Commissioners.
"Net Cash Proceeds" shall mean for any event requiring a reduction of
the Total Revolving Loan Commitment and/or repayment of Term Loans pursuant to
Section 3.03 or 4.02 (other than from any Asset Sale), as the case may be, the
gross cash proceeds (including any cash received by way of deferred payment
pursuant to a promissory note, receivable or otherwise, but only as and when
received) received from such event, net of reasonable transaction costs
(including, as applicable, any underwriting, brokerage or other customary
commissions and reasonable legal, advisory and other fees and expenses
associated therewith) received from any such event.
"Net Sale Proceeds" shall mean for any sale of assets, the gross cash
proceeds (including any cash received by way of deferred payment pursuant to a
promissory note, receivable or otherwise, but only as and when received)
received from any sale of assets, net of (i) reasonable transaction costs
(including, without limitation, any underwriting, brokerage or other customary
selling commissions and reasonable legal, advisory and other fees and expenses,
including title and recording expenses, associated therewith) and payments of
unassumed liabilities relating to the assets sold at the time of, or within 30
days after, the date of such sale, (ii) the amount of such gross cash proceeds
required to be used to repay any Indebtedness (other than Indebtedness of the
Lenders pursuant to this Agreement) which is secured by the respective assets
which were sold, and (iii) the estimated marginal increase in income taxes which
will be payable by Holdings' consolidated group with respect to the fiscal year
in which the sale occurs as a result of such sale; provided, however, that such
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gross proceeds shall not include any portion of such gross cash proceeds which
Holdings determines in good faith should be reserved for post-closing
adjustments (including indemnification payments) (in the event such amount of
gross cash proceeds so reserved exceeds $50,000, to the extent RPP USA delivers
to the Lenders a certificate signed by its chief financial officer or treasurer,
controller or chief accounting officer as to such determination), it being
understood and agreed that on the day that all such post-closing adjustments
have been determined (which shall not be later than six months following the
date of the respective asset sale), the amount (if any) by which the reserved
amount in respect of such sale or disposition exceeds the actual post-closing
adjustments payable by Holdings or any of its Subsidiaries shall constitute Net
Sale Proceeds on such date received by Holdings and/or any of its Subsidiaries
from such sale, lease, transfer or other disposition. The parties hereto
acknowledge and agree that Net Sale Proceeds shall not include any trade-in-
credits or
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purchase price reductions received by Holdings or any of its Subsidiaries in
connection with an exchange of equipment for replacement equipment that is the
functional equivalent of such exchanged equipment.
"New Holdings PIK Junior Subordinated Notes" shall mean Acquisition
Corp. PIK Junior Subordinated Notes assumed by Holdings from Acquisition Corp.
in connection with Acquisition Corp.'s contribution of Initial Holdings PIK
Junior Subordinated Notes to Holdings and/or unsecured pay-in-kind junior
subordinated promissory notes issued by Holdings in connection with the exchange
of a like amount of Initial Holdings PIK Junior Subordinated Notes, it being
understood and agreed that in any event, all New Holdings PIK Junior
Subordinated Notes shall be unsecured junior subordinated promissory notes,
shall not have any maturities, amortizations, sinking fund payments or similar
requirements prior to November 14, 2012 and shall not be guaranteed or supported
in any way by any Subsidiary of Holdings.
"Non-Credit Party" shall mean any Subsidiary of Holdings that is not a
Credit Party.
"Non-Defaulting Lender" shall mean each Lender other than a Defaulting
Lender.
"Non-Wholly Owned Entity" shall have the meaning provided in the
definition of Permitted Acquisition.
"Note" shall mean each A Euro Term Note, each B Term Note, each
Revolving Note and/or each Swingline Note, as the context may require.
"Notice of Borrowing" shall have the meaning provided in Section
1.03(a).
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean (i) except as provided in clauses (ii) and
(iii) below, the office of the Administrative Agent, located at 1633 Broadway,
26th Floor, New York, New York 10036, Attention: James Morgan, with a copy to
the Administrative Agent, located at 25 Cabot Square, Canary Wharf, London UK
E144QA, Attention: Jennifer Clout, or such other office or offices as the
Administrative Agent may designate to the Borrowers and the Lenders from time to
time, (ii) in the case of Euro Swingline Loans, the office of the Administrative
Agent, located, at 25 Cabot Square, Canary Wharf, London UK E144QA, Attention:
Jennifer Clout, with a copy to the Administrative Agent located at 1633
Broadway, 26th Floor, New York, New York 10036, Attention: James Morgan, or
such other office or offices as the Administrative Agent may designate to the
Borrowers and the Lenders from time to time, and (iii) in the case of Letters of
Credit, the office of the respective Letter of Credit Issuer designated in
writing by such Letter of Credit Issuer to the US Borrowers and the
Administrative Agent, with a copy (in each case) to the Administrative Agent at
1633 Broadway, 26th Floor, New York, New York 10036, Attention: James Morgan.
"Obligation Currency" shall have the meaning provided in Section
15.19(a).
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"Obligations" shall mean all amounts, direct or indirect, contingent
or absolute, of every type or description, and at any time existing, owing to
any of the Agents, the Collateral Agent, any Letter of Credit Issuer or any
Lender pursuant to the terms of this Agreement or any other Credit Document.
"Offering Memorandum" shall mean the US Borrowers' Offering
Memorandum, dated November 8, 2000, relating to the offering of the Senior
Subordinated Notes on the Initial Borrowing Date.
"Other Hedging Agreements" shall mean (i) any foreign exchange
contracts, currency swap agreements or other similar agreements or arrangements
designed to protect against fluctuations in currency values and (ii) any
Commodity Agreements.
"Overdraft Line" shall have the meaning provided in Section 9.04(o).
"Overnight Euro Rate" on any date shall mean the offered quotation by
first-class banks in the London interbank market to the Swingline Lender for
Euro overnight deposits of amounts in immediately available funds comparable to
the outstanding principal amount of the Euro Swingline Loan of the Swingline
Lender as of 11:00 a.m. (London time) on such date, provided that in the event
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the Administrative Agent has made any determination pursuant to Section
1.10(a)(i) in respect of Euro Swingline Loans, or in the circumstances described
in clause (i) to the proviso to Section 1.10(b) in respect of Euro Swingline
Loans, the Overnight Euro Rate determined pursuant to this definition shall
instead be the rate determined by the Swingline Lender as the all-in-cost of
funds for the Swingline Lender to fund such Euro Swingline Loan.
"Participant" shall have the meaning provided in Section 2.03(a).
"Payment Office" shall mean (i) except as provided in clause (ii)
below, the office of the Administrative Agent located at 1633 Broadway, 26th
Floor, New York, New York 10036, Attention: James Morgan, or such other office
as the Administrative Agent may designate to the Borrowers and the Lenders from
time to time, and (ii) in the case of Euro Swingline Loans, 25 Cabot Square,
Canary Wharf, London UK E144QA, Attention: Jennifer Clout, or such other office
or offices as the Administrative Agent may designate to the Borrowers and the
Lenders from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquired Debt" shall have the meaning set forth in Section
9.04(d).
"Permitted Acquisition" shall mean the acquisition by RPP USA or any
of its Wholly-Owned Subsidiaries of assets constituting a business, division or
product line of any Person not already a Subsidiary of RPP USA or such Wholly-
Owned Subsidiary or of 100% of the capital stock or other equity interests of
any such Person, provided that (A) the consideration paid by RPP USA or such
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Wholly-Owned Subsidiary consists solely of cash (including proceeds of Revolving
Loans), the issuance of Holdings Common Stock, the issuance of any Qualified
Preferred Stock or Disqualified Preferred Stock otherwise permitted pursuant to
Section 9.13, the
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issuance of Indebtedness otherwise permitted in Section 9.04 (including
Permitted Subordinated Indebtedness) and the assumption/acquisition of any
Permitted Acquired Debt (calculated in accordance with GAAP) relating to such
business, division, product line or Person which is permitted to remain
outstanding in accordance with the requirements of Section 9.04, (B) in the case
of the acquisition of 100% of the capital stock or other equity interests of any
Person, such Person (the "Acquired Person") shall own no capital stock or other
equity interests of any other Person unless either (x) the Acquired Person owns
100% of the capital stock or other equity interests of such other Person or (y)
if the Acquired Person owns capital stock or equity interests in any other
Person which is not a Wholly-Owned Subsidiary of the Acquired Person (a "Non-
Wholly Owned Entity"), both (1) the Acquired Person shall not have been created
or established in contemplation of, or for purposes of, the respective Permitted
Acquisition and (2) any Non-Wholly Owned Entity of the Acquired Person shall
have been non-wholly-owned prior to the date of the respective Permitted
Acquisition and not created or established in contemplation thereof, (C) the
assets acquired, or the business of the Acquired Person and its Subsidiaries,
shall be in a Permitted Business and (D) all applicable requirements of Sections
8.14 and 9.02 applicable to Permitted Acquisitions are satisfied.
Notwithstanding anything to the contrary contained in the immediately preceding
sentence, an acquisition which does not otherwise meet the requirements set
forth above in the definition of "Permitted Acquisition" shall constitute a
Permitted Acquisition if, and to the extent, the Required Lenders agree in
writing that such acquisition shall constitute a Permitted Acquisition for
purposes of this Agreement.
"Permitted Acquisition Additional Cost-Savings" shall mean, in
connection with each Permitted Acquisition, those demonstrable cost-savings and
other adjustments (in each case not included pursuant to clause (iii) or (iv) of
the definition of Pro Forma Basis contained herein) reasonably anticipated by
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RPP USA to be achieved in connection with such Permitted Acquisition for the 12
month period following the consummation of such Permitted Acquisition, which
cost-savings and other adjustments shall be estimated on a good faith basis by
RPP USA and, if requested by the Administrative Agent, be verified by a
nationally recognized accounting firm or as otherwise agreed to by the
Administrative Agent.
"Permitted Business" shall mean each business conducted by RPP USA and
its Subsidiaries on the Initial Borrowing Date and any other business or
activities as may be substantially similar, incidental or related thereto, and
reasonable extensions of the foregoing.
"Permitted Debt" shall mean and include Permitted Acquired Debt,
Permitted Subordinated Refinancing Indebtedness and Permitted Subordinated
Indebtedness.
"Permitted Encumbrances" shall mean (i) those liens, encumbrances,
hypothecs and other matters affecting title to any Real Property and found
reasonably acceptable by the Administrative Agent, (ii) as to any particular
Real Property at any time, such easements, encroachments, covenants,
restrictions, agreements, rights of way, minor defects, irregularities or
encumbrances on title which could not reasonably be expected to materially
impair such Real Property for the purpose for which it is held by the mortgagor
or grantor thereof, or the lien or hypothec held by the Collateral Agent, (iii)
zoning and other municipal ordinances which are not violated in any material
respect by the existing improvements and the present use made by the mortgagor
or grantor thereof of the premises, except if permitted by a variance or
"grandfather"
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provision, (iv) general real estate taxes and assessments not yet delinquent,
and (v) such other similar items as the Administrative Agent may consent to
(such consent not to be unreasonably withheld).
"Permitted Holders" shall mean Apollo Group and the Management
Participants (to the extent acting as a "group" within the meaning of Rules
13d-3 and 13d-5 under the Securities Exchange Act of 1934, as in effect on the
Effective Date).
"Permitted Liens" shall have the meaning provided in Section 9.03.
"Permitted Sale-Leaseback Transaction" shall mean any sale by RPP USA
or any of its Subsidiaries of (x) any barge or railcar existing on the Initial
Borrowing Date and (y) any asset first acquired by RPP USA or such Subsidiary
after the Initial Borrowing Date, which barge, railcar or other asset, in each
case, is thereafter leased by the purchaser thereof to RPP USA or such
Subsidiary, provided that (i) the consideration for such sale shall be entirely
--------
in cash, (ii) in the case of clause (x) above, the consideration for such sale
shall be at least equal to the fair market value of the respective barge or
railcar the subject of such sale, (iii) in the case of clause (y) above, the
consideration for such sale shall be in an amount at least equal to 85% of the
aggregate amount expended by RPP USA or such Subsidiary in so acquiring such
asset, (iv) in the case of clause (y) above, each such sale-leaseback
transaction is effected within 90 days of the acquisition by RPP USA or such
Subsidiary of such asset, and (v) in each case, the respective transaction is
otherwise effected in accordance with the applicable requirements of Section
9.02(p).
"Permitted Subordinated Indebtedness" shall mean subordinated
Indebtedness of the US Borrowers incurred in connection with a Permitted
Acquisition and in accordance with Section 8.14, which Permitted Subordinated
Indebtedness and all terms and conditions thereof (including, without
limitation, the maturity thereof, the interest rate applicable thereto,
amortization, defaults, remedies, voting rights, subordination provisions,
etc.), and the documentation therefor, shall be reasonably satisfactory to the
Administrative Agent, provided that, in any event, unless the Required Lenders
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otherwise expressly consent in writing prior to the incurrence thereof, (i) no
such Indebtedness shall be guaranteed by Holdings or any Subsidiary thereof,
(ii) no such Indebtedness shall be secured by any asset of Holdings or any of
its Subsidiaries and (iii) such Indebtedness has substantially the same (or,
from the perspective of the Lenders, more favorable) subordination provisions as
are contained in the Senior Subordinated Note Documents. The incurrence of
Permitted Subordinated Indebtedness shall be deemed to be a representation and
warranty by Holdings and the Borrowers that all conditions thereto have been
satisfied in all material respects and that same is permitted in accordance with
the terms of this Agreement, which representation and warranty shall be deemed
to be a representation and warranty for all purposes hereunder, including,
without limitation, Sections 7 and 10.
"Permitted Subordinated Refinancing Indebtedness" shall mean
Indebtedness of the US Borrowers issued or given in exchange for, or all the
proceeds of which are used to refinance, all of the outstanding Senior
Subordinated Notes, so long as (a) such Indebtedness has a weighted average life
to maturity greater than or equal to the weighted average life to maturity of
the Senior Subordinated Notes, (b) such refinancing does not (i) increase the
amount of such
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Indebtedness outstanding immediately prior to such refinancing or (ii) add
guarantors, obligors or security from that which applied to the Senior
Subordinated Notes, (c) such Indebtedness has substantially the same (or, from
the perspective of the Lenders, more favorable) subordination provisions, if
any, as applied to the Senior Subordinated Notes, and (d) all other terms of
such refinancing (including, without limitation, with respect to the
amortization schedules, redemption provisions, maturities, covenants, defaults
and remedies), are not, taken as a whole, materially less favorable to RPP USA
and its Subsidiaries than those previously existing with respect to the Senior
Subordinated Notes.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" shall mean any pension plan as defined in Section 3(2) of ERISA
and which is subject to Title I of ERISA, which is maintained or contributed to
by (or to which there is an obligation to contribute of) Holdings or a
Subsidiary of Holdings or an ERISA Affiliate, and each such plan for the five
year period immediately following the latest date on which Holdings, or a
Subsidiary of Holdings or an ERISA Affiliate maintained, contributed to or had
an obligation to contribute to such plan but excluding (a) all Multiemployer
Plans and (b) any plan, other than for purposes of Sections 4069 and 4212 of
ERISA, that, after the Recapitalization, Shell or any of its ERISA Affiliates
maintain or are obligated to maintain or contribute to.
"Pledge Agreement Collateral" shall mean all of the "Collateral" as
defined in any Pledge Agreement.
"Pledge Agreements" shall have the meaning provided in Section 5.09.
"Post-Closing Period" shall have the meaning provided in Section
8.14(a).
"Preferred Stock," as applied to the capital stock of any Person,
means capital stock of such Person (other than common stock of such Person) of
any class or classes (however designed) that ranks prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person, to shares of capital
stock of any other class of such Person, and shall include any Qualified
Preferred Stock and Disqualified Preferred Stock.
"Prime Lending Rate" shall mean the rate which Citibank, N.A.
announces from time to time as its prime lending rate, the Prime Lending Rate to
change when and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer.
"Principal Amount" shall mean (i) the stated amount of each Dollar
Loan and/or (ii) the Dollar Equivalent of the stated amount of each Euro Loan,
as the context may require.
"Pro Forma Basis" shall mean, in connection with any calculation of
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compliance with any financial covenant or financial term, the calculation
thereof after giving effect on a pro forma basis to (without duplication) (u) if
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the relevant period to be tested includes any period
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prior to the Initial Borrowing Date, the consummation of the Transaction as if
the same had occurred on the first day of such period, (v) the incurrence of any
Indebtedness (other than revolving Indebtedness, except to the extent same is
incurred to finance the Transaction, to refinance other outstanding Indebtedness
(including to refinance any outstanding Indebtedness of an Unrestricted
Subsidiary at the time same is designated as a Subsidiary pursuant to a
Subsidiary Redesignation) or to finance Permitted Acquisitions) or Preferred
Stock (other than Qualified Preferred Stock of Holdings) after the first day of
the relevant Calculation Period as if such Indebtedness or Preferred Stock had
been incurred or issued (and the proceeds thereof applied) on the first day of
the relevant Calculation Period, (w) the permanent repayment of any Indebtedness
(other than (A) revolving Indebtedness except to the extent paid with Permitted
Debt or Disqualified Preferred Stock and (B) Term Loans repaid with proceeds of
the type described in succeeding clause (z)) or Preferred Stock (other than
Qualified Preferred Stock of Holdings) after the first day of the relevant
Calculation Period as if such Indebtedness or Preferred Stock had been retired
or redeemed on the first day of the relevant Calculation Period, (x) the
Permitted Acquisition, if any, then being consummated as well as any other
Permitted Acquisition consummated after the first day of the relevant
Calculation Period and on or prior to the date of the respective Permitted
Acquisition then being effected, (y) the Subsidiary Redesignation, if any, then
being designated as well as any other Subsidiary Redesignation after the first
day of the relevant Calculation Period and on or prior to the date of the
respective Subsidiary Redesignation then being designated, and (z) any repayment
of Term Loans with cash proceeds contributed by Holdings to RPP USA, which cash
proceeds were initially received by Holdings from the issuance of Holdings
Common Stock or Qualified Preferred Stock to, or any cash equity contributions
from, Apollo Group as if such Term Loans had been repaid on the first day of the
relevant Calculation Period, with the following rules to apply in connection
therewith:
(i) all Indebtedness and Preferred Stock (other than Qualified
Preferred Stock of Holdings) (x) (other than revolving Indebtedness, except
to the extent same is incurred to finance the Transaction, to refinance
other outstanding Indebtedness (including to refinance any outstanding
Indebtedness of an Unrestricted Subsidiary at the time same is designated
as a Subsidiary pursuant to a Subsidiary Redesignation), or to finance
Permitted Acquisitions) incurred or issued after the first day of the
relevant Calculation Period (whether incurred to finance a Permitted
Acquisition, to refinance Indebtedness or otherwise) shall be deemed to
have been incurred or issued (and the proceeds thereof applied) on the
first day of the respective Calculation Period and remain outstanding
through the date of determination (and thereafter in the case of
projections pursuant to Section 8.14(a)(iv)) and (y) (other than (A)
revolving Indebtedness except to the extent paid with Permitted Debt or
Disqualified Preferred Stock and (B) Term Loans repaid with proceeds of the
type described in succeeding clause (vi)) permanently retired or redeemed
after the first day of the relevant Calculation Period shall be deemed to
have been retired or redeemed on the first day of the respective
Calculation Period and remain retired through the date of determination
(and thereafter in the case of projections pursuant to Section
8.14(a)(iv));
(ii) all Indebtedness or Preferred Stock (other than Qualified
Preferred Stock of Holdings) assumed to be outstanding pursuant to
preceding clause (i) shall be deemed to have borne interest or accrued
dividends, as the case may be, at (x) the rate applicable
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thereto, in the case of fixed rate Indebtedness or Preferred Stock or (y)
the rates which would have been applicable thereto during the respective
period when same was deemed outstanding, in the case of floating rate
Indebtedness or Preferred Stock (although interest expense with respect to
any Indebtedness or Preferred Stock for periods while same was actually
outstanding during the respective period shall be calculated using the
actual rates applicable thereto while same was actually outstanding);
provided that for purposes of calculations pursuant to Section 8.14(a)(iv),
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all Indebtedness or Preferred Stock (whether actually outstanding or deemed
outstanding) bearing interest at a floating rate of interest shall be
tested on the basis of the rates applicable at the time the determination
is made pursuant to said provisions;
(iii) in making any determination of Consolidated EBITDA, pro forma
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effect shall be given to any Subsidiary Redesignation or Permitted
Acquisition effected or consummated after the first day of the respective
period being tested, taking into account (in the case of a Permitted
Acquisition only), for any portion of the relevant period being tested
occurring prior to the consummation of such Permitted Acquisition,
demonstrable cost savings actually achieved simultaneously with, or to be
achieved within the one-year period following, the closing of the
respective Permitted Acquisition, which cost savings would be permitted to
be recognized in pro forma statements prepared in accordance with
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Regulation S-X under the Securities Act, as if such cost-savings were
realized on the first day of the relevant period;
(iv) without duplication of adjustments provided above, in case of
any Permitted Acquisition consummated after the first day of the relevant
period being tested, pro forma effect shall be given to the termination or
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replacement of operating leases with Capitalized Lease Obligations or other
Indebtedness, and to any replacement of Capitalized Lease Obligations or
other Indebtedness with operating leases, in each case effected at the time
of the consummation of such Permitted Acquisition or thereafter, in each
case if effected after the first day of the period being tested and prior
to the date the respective determination is being made, as if such
termination or replacement had occurred on the first day of the relevant
period;
(v) in making any determination of Consolidated EBITDA for purposes
of any calculation of the Adjusted Total Leverage Ratio, the Adjusted
Senior Leverage Ratio and the Consolidated Interest Coverage Ratio only,
(x) for any Permitted Acquisition which occurred during the last two fiscal
quarters comprising the respective Test Period (and, in the case of Section
8.14, thereafter and on or prior to the relevant date of determination),
there shall be added to Consolidated EBITDA the amount of Permitted
Acquisition Additional Cost Savings, determined in accordance with the
definition thereof contained herein, expected to be realized with respect
to such Permitted Acquisition, (y) for any Permitted Acquisition effected
in the second fiscal quarter of the respective Test Period, the
Consolidated EBITDA shall be increased by 50% of the Permitted Acquisition
Additional Cost Savings estimated to arise in connection with the
respective Permitted Acquisition and (z) for any Permitted Acquisition
effected in the first fiscal quarter of the respective Test Period, the
Consolidated EBITDA shall be increased by 25% of the Permitted Acquisition
Additional Cost Savings estimated to arise in connection with the
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respective Permitted Acquisition; provided that the aggregate additions to
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Consolidated EBITDA, for any period being tested, pursuant to this clause
(v) shall not exceed 15% of the amount which would have been Consolidated
EBITDA in the absence of the adjustment pursuant to this clause (v); and
(vi) all Term Loans repaid with cash proceeds contributed by Holdings
to RPP USA, which cash proceeds were initially received by Holdings from
the issuance of Holdings Common Stock or Qualified Preferred Stock to, or
any cash equity contributions from, Apollo Group after the first day of the
relevant Calculation Period shall be deemed to have been repaid on the
first day of the respective Calculation Period.
Notwithstanding anything to the contrary contained above, (x) for purposes of
Sections 9.09 and 9.10 and, for purposes of all determinations of the
Applicable Commitment Fee Percentage and the Applicable Margins, pro forma
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effect (as otherwise provided above) shall only be given for events or
occurrences which occurred during the respective Test Period but not thereafter
and (y) for purposes of Section 8.14, pro forma effect (as otherwise provided
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above) shall be given for events or occurrences which occurred during the
respective Test Period and thereafter but on or prior to the respective date of
determination.
"Pro Forma Financial Statements" shall have the meaning provided in
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Section 5.16(a).
"Projections" shall mean the projections contained in the Confidential
Information Memorandum, dated October 2000, which were prepared by or on behalf
of RPP USA in connection with the Transaction and delivered to the Agents and
the Lenders prior to the Initial Borrowing Date.
"Public Offering" shall mean an underwritten public offering of
Holdings Common Stock or an offering thereof pursuant to Rule 144A under the
Securities Act.
"Qualified IPO" shall mean an underwritten public offering of Holdings
Common Stock which generates cash proceeds to Holdings of at least $100,000,000.
"Qualified Preferred Stock" shall mean any Preferred Stock of
Holdings, the express terms of which shall provide that dividends thereon shall
not be required to be paid at any time (and to the extent) that such payment
would be prohibited by the terms of this Agreement or any other agreement of
Holdings relating to outstanding indebtedness and which, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event (including any Change of
Control Event), cannot mature and is not mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, and is not redeemable, or required to be
repurchased, at the sole option of the holder thereof (including, without
limitation, upon the occurrence of a Change of Control Event), in whole or in
part, on or prior to the date occurring two years after the B Term Loan Maturity
Date.
"Quarterly Payment Date" shall mean the last Business Day of each
March, June, September and December commencing on December 31, 2000.
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"Real Property" of any Person shall mean all of the right, title and
interest of such Person in and to land, immovable property, improvements and
fixtures, including Leaseholds.
"Recapitalization" shall mean and include the Acquisition, the Shell
Equity Rollover, the Redemption, the issuance of the Management Shares, the
repayment of the Existing Shell Intercompany Loans and such other transactions
contemplated by the Recapitalization Documents.
"Recapitalization Documents" shall mean and include (i) the Master
Sale Agreements and (ii) all other agreements and documents governing, or
relating to, the Recapitalization.
"Recovery Event" shall mean the receipt by Holdings or any of its
Subsidiaries of any insurance or condemnation proceeds (other than proceeds from
business interruption insurance) payable (i) by reason of theft, physical
destruction or damage or any other similar event with respect to any properties
or assets of Holdings or any of its Subsidiaries, (whether under any policy of
insurance required to be maintained under Section 8.03 or otherwise) and (ii) by
reason of any condemnation, taking, seizing or similar event with respect to any
properties or assets of Holdings or any of its Subsidiaries.
"Redemption" shall have the meaning provided in Section 5.08(a).
"Register" shall have the meaning provided in Section 15.17.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation T" shall mean Regulation T of the Board of Governors of
the Federal Reserve System as from to time in effect and any successor to all or
any portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Release" shall mean disposing, discharging, injecting, spilling,
pumping, leaking, leaching, dumping, emitting, escaping, emptying, seeping,
placing or pouring, into or upon any land or water or air, or otherwise entering
into the environment.
"Relevant Currency Equivalent" shall mean the Dollar Equivalent or the
Euro Equivalent, as the case may be.
"Replaced Lender" shall have the meaning provided in Section 1.13.
"Replacement Lender" shall have the meaning provided in Section 1.13.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the
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30-day notice period is waived under subsection .22, .23, .24, .25, .27, or .28
of PBGC Regulation Section 4043 and the advance reporting events under
subsections .61 to .68 of PBGC Regulation Section 4043.
"Required Lenders" shall mean Non-Defaulting Lenders, the sum of whose
outstanding Term Loans and Revolving Loan Commitments (or after the termination
thereof, outstanding Revolving Loans and RL Percentage of outstanding Swingline
Loans and Letter of Credit Outstandings) represent an amount greater than 50% of
the sum of all outstanding Term Loans of Non-Defaulting Lenders and the sum of
the Revolving Loan Commitment of all Non-Defaulting Lenders (or after the
termination thereof, the sum of the then total outstanding Revolving Loans of
Non-Defaulting Lenders and the aggregate RL Percentages of all Non-Defaulting
Lenders of the total outstanding Swingline Loans and Letter of Credit
Outstandings at such time). For purposes of this definition, the calculation of
the outstanding principal amount of all A Euro Term Loans, Euro Revolving Loans
and Euro Swingline Loans shall be determined by taking the Dollar Equivalent
thereof at the time of any such calculation.
"Resins Business" shall mean Holdings, the Dutch Parent and each of
the other entities and assets being purchased by Acquisition Corp. pursuant to
the Master Sale Agreements.
"Revolving Loan" shall have the meaning provided in Section 1.01(c).
"Revolving Loan Commitment" shall mean, with respect to each RL
Lender, the amount set forth opposite such Lender's name in Schedule I directly
below the column entitled "Revolving Loan Commitment," as the same may be (x)
reduced from time to time pursuant to Sections 3.02, 3.03, 4.02 and/or Section
10 or (y) adjusted from time to time as a result of assignments to or from such
Lender pursuant to Section 1.13 or 15.04(b).
"Revolving Loan Maturity Date" shall mean November 14, 2006.
"Revolving Note" shall have the meaning provided in Section 1.05(a).
"RL Lender" shall mean, at any time, each Lender with a Revolving Loan
Commitment or with outstanding Revolving Loans.
"RL Percentage" of any Lender at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Lender at such time and the denominator of which is the Total
Revolving Loan Commitment at such time, provided that if the RL Percentage of
--------
any Lender is to be determined after the Total Revolving Loan Commitment has
been terminated, then the RL Percentages of the Lenders shall be determined
immediately prior (and without giving effect) to such termination.
"Rolling Stock" shall have the meaning provided in the US Security
Agreement.
"Rollover Amount" shall have the meaning provided in Section 9.11(b).
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"RPP USA" shall have the meaning provided in the first paragraph of
this Agreement.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"Salomon" shall mean Salomon Smith Barney Inc., in its individual
capacity and any successor thereto.
"Scheduled Repayment" shall mean, collectively, each A Euro Scheduled
Repayment and B Scheduled Repayment.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b)(ii).
"Secured Creditors" shall have the meaning provided in the respective
Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Security Agreement" shall have the meaning provided in Section 5.10.
"Security Agreement Collateral" shall mean all of the "Collateral" as
defined in any Security Agreement.
"Security Documents" shall mean and include each Pledge Agreement,
each Security Agreement, each Mortgage and each Additional Security and Guaranty
Document, if any.
"Senior Subordinated Note Documents" shall mean the Senior
Subordinated Notes, the Senior Subordinated Note Indenture and all other
documents executed and delivered with respect to the Senior Subordinated Notes
or Senior Subordinated Note Indenture, as in effect on the Initial Borrowing
Date and as the same may be amended, modified or supplemented from time to time
in accordance with the terms hereof and thereof.
"Senior Subordinated Note Indenture" shall mean the Indenture, dated
as of November 14, 2000, among the US Borrowers, the US Credit Parties which are
Subsidiary Guarantors and the Senior Subordinated Note Indenture Trustee, as in
effect on the Initial Borrowing Date and as thereafter amended, modified or
supplemented from time to time in accordance with the requirements hereof and
thereof.
"Senior Subordinated Note Indenture Trustee" shall mean United States
Trust Company of New York or any successor thereto.
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"Senior Subordinated Notes" shall mean the US Borrowers' 13.50% Senior
Subordinated Notes due 2010, issued pursuant to the Senior Subordinated Note
Indenture, as in effect on the Initial Borrowing Date and as the same may be
amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof. As used herein, the term "Senior Subordinated Notes" shall
include any Exchange Senior Subordinated Notes issued pursuant to the Senior
Subordinated Notes Indenture in exchange for theretofore outstanding Senior
Subordinated Notes, as contemplated by the Offering Memorandum and the
definition of Exchange Senior Subordinated Notes.
"Shareholders' Agreements" shall have the meaning provided in Section
5.13.
"Sharing Event" shall mean (i) the occurrence of any Event of Default
with respect to Holdings or any Borrower pursuant to Section 10.05 or (ii) the
acceleration of the maturity of any Loans pursuant to the last paragraph of
Section 10.
"Shell" shall mean the Royal/Dutch Shell Group of Companies and its
Affiliates.
"Shell Equity Rollover" shall have the meaning provided in Section
5.08(a).
"Standby Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Start Date" shall have the meaning provided in the definition of
Applicable Margin.
"Stated Amount" of each Letter of Credit shall mean the maximum amount
available to be drawn thereunder (regardless of whether any conditions for
drawing could then be met); provided that the "Stated Amount" of each Letter of
--------
Credit denominated in Euros shall be, on any date of calculation, the Dollar
Equivalent of the maximum amount available to be drawn in Euros thereunder
(determined without regard to whether any conditions to drawing could then be
met).
"Subsidiaries Guaranty" shall mean and include the US Subsidiaries
Guaranty, the Foreign Subsidiaries Guaranty and each Additional Security and
Guaranty Document.
"Subsidiary" of any Person shall mean and include (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity (other than a corporation) in which such Person directly
or indirectly through Subsidiaries, has more than a 50% equity interest at the
time. Notwithstanding the foregoing (and except for purposes of Sections 7.01,
7.04, 7.12, 7.16, 7.17, 7.20, 8.01(h), 8.04, 8.06, 8.07, 8.08, 10.05, 10.06 and
10.09, and the definitions of Unrestricted Subsidiary, Foreign Unrestricted
Subsidiary and Wholly-Owned Unrestricted Subsidiary contained herein), an
Unrestricted Subsidiary shall be deemed not to be a Subsidiary of Holdings or
any of its other Subsidiaries for purposes of this Agreement.
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"Subsidiary Guarantor" shall mean (i) each US Credit Party (other than
Holdings and the US Borrowers) in its capacity as a Guarantor under the US
Subsidiaries Guaranty and the Foreign Subsidiaries Guaranty, and (ii) each
Foreign Credit Party (other than the Dutch Borrower) in its capacity as a
Guarantor under the Foreign Subsidiaries Guaranty.
"Subsidiary Redesignation" shall have the meaning provided in the
definition of "Unrestricted Subsidiary" contained in this Section 11.
"Supermajority Lenders" of any Tranche shall mean those Non-Defaulting
Lenders which would constitute the Required Lenders under, and as defined in,
this Agreement if (x) all outstanding Obligations of the other Tranches under
this Agreement were repaid in full and all Commitments with respect thereto were
terminated and (y) the percentage "50%" contained therein were changed to
"66.66%."
"Swingline Expiry Date" shall mean the date which is five Business
Days prior to the Revolving Loan Maturity Date.
"Swingline Lender" shall mean MSSF.
"Swingline Loan" shall have the meaning provided in Section 1.01(d).
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Syndication Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Syndication Date" shall mean that date upon which the Administrative
Agent determines (and notifies the Borrowers and the Lenders) that the primary
syndication of the Loans and Commitments (and resultant addition of Persons as
Lenders pursuant to Section 15.04(b)) has been completed.
"Tax Allocation Agreements" shall have the meaning provided in Section
5.13.
"Tax Benefit" shall have the meaning provided in Section 4.04(c).
"Taxes" shall have the meaning provided in Section 4.04(a).
"Term Loan Commitments" shall mean, collectively, the A Euro Term Loan
Commitments and the B Term Loan Commitments.
"Term Loans" shall mean, collectively, the A Euro Term Loans and the B
Term Loans.
"Test Period" shall mean each period of four consecutive fiscal
quarters of RPP USA then last ended, in each case taken as one accounting
period. Notwithstanding anything to the contrary contained above or in Section
15.07 or otherwise required by GAAP, to the extent that the respective Test
Period includes RPP USA's fiscal quarters ending on March 31, 2000,
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June 30, 2000, September 30, 2000 and December 31, 2000, (x) Consolidated EBITDA
for such fiscal quarters shall be $47,400,000, $40,300,000, $37,200,000 (or, if
higher, the actual Consolidated EBITDA for RPP USA's fiscal quarter ending
September 30, 2000) and $39,200,000, respectively, and (y) Consolidated Interest
Expense for such fiscal quarters shall be $19,125,000, $19,125,000, $19,125,000
and $19,125,000, respectively.
"Total A Euro Term Loan Commitment" shall mean the sum of the A Euro
Loan Commitments of each of the Lenders.
"Total B Term Loan Commitment" shall mean the sum of the B Term Loan
Commitments of each of the Lenders.
"Total Commitment" shall mean, at any time, the sum of the Total A
Euro Term Loan Commitment, the Total B Term Loan Commitment and the Total
Revolving Loan Commitment.
"Total Leverage Ratio" shall mean, on any date, the ratio of (i)
Consolidated Debt on such date to (ii) Consolidated EBITDA for the Test Period
most recently ended on or prior to such date. All calculations of the Total
Leverage Ratio shall be made on a Pro Forma Basis, it being understood and
--- -----
agreed that, as provided in the definition of Pro Forma Basis, the adjustments
--- -----
contained in clause (v) thereof shall not be taken into account in determining
the Total Leverage Ratio.
"Total Revolving Loan Commitment" shall mean the sum of the Revolving
Loan Commitments of each of the Lenders.
"Total Unutilized Revolving Loan Commitment" shall mean, at any time,
(i) the Total Revolving Loan Commitment at such time less (ii) the sum of (I)
----
the aggregate Principal Amount of all Revolving Loans and Swingline Loans
outstanding at such time plus (II) the Letter of Credit Outstandings at such
----
time.
"Tractor Trailer" shall have the meaning provided in the US Security
Agreement.
"Trade Letter of Credit" shall have the meaning set forth in Section
2.01(a).
"Tranche" shall mean the respective facility and commitments utilized
in making Loans hereunder, with there being four separate Tranches, i.e., A Euro
----
Term Loans, B Term Loans, Revolving Loans and Swingline Loans.
"Transaction" shall mean, collectively, (i) the consummation of the
Recapitalization, (ii) the consummation of the Equity Financing, (iii) the
repayment of the Existing Shell Intercompany Note, (iv) the entering into of the
Credit Documents and the incurrence of all Loans hereunder on the Initial
Borrowing Date, (v) the issuance of the Senior Subordinated Notes, (vi) the
issuance of the Initial Holdings PIK Junior Subordinated Notes, (vii) the
issuance of the Holdings Contingent Seller Subordinated Note and (viii) the
payment of fees and expenses in connection with the foregoing.
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"Type" shall mean any type of Loan determined with respect to the
interest option applicable thereto, i.e., a Base Rate Loan, a Eurodollar Loan or
----
a Euro Loan.
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the value of the accumulated plan benefits under the Plan
determined on a plan termination basis in accordance with actuarial assumptions
at such time consistent with those prescribed by the PBGC for purposes of
Section 4044 of ERISA, exceeds the fair market value of all plan assets
allocable to such liabilities under Title IV of ERISA (excluding any accrued but
unpaid contributions).
"Unpaid Drawing" shall have the meaning provided in Section 2.04(a).
"Unrestricted Subsidiary" shall mean any Subsidiary of RPP USA that is
acquired or created after the Initial Borrowing Date and designated by RPP USA
as an Unrestricted Subsidiary hereunder by written notice to the Administrative
Agent, provided that RPP USA shall only be permitted to so designate a new
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Unrestricted Subsidiary after the Initial Borrowing Date and so long as (i) no
Default or Event of Default exists or would result therefrom and (ii) all of the
provisions of Section 9.15 shall have been complied with in respect of such
newly-designated Unrestricted Subsidiary and such Unrestricted Subsidiary shall
be capitalized (to the extent capitalized by RPP USA or any of its Subsidiaries)
through Investments as permitted by, and in compliance with, Section 9.05(l),
with any assets owned by such Unrestricted Subsidiary at the time of the initial
designation thereof to be treated as Investments pursuant to Section 9.05(l),
provided that at the time of the initial Investment by RPP USA or any of its
- --------
Wholly-Owned Subsidiaries in such Subsidiary, RPP USA shall designate such
entity as an Unrestricted Subsidiary in a written notice to the Administrative
Agent. RPP USA may designate any Unrestricted Subsidiary to be a Subsidiary for
purposes of this Agreement (each a "Subsidiary Redesignation"), provided that
--------
(i) such Unrestricted Subsidiary, both before and after giving effect to such
designation, shall be a Wholly-Owned Subsidiary of RPP USA, (ii) no Default or
Event of Default then exists or would occur as a consequence of any such
Subsidiary Redesignation (including but not limited to, under Sections 9.03 and
9.04), (iii) all actions which would be required to be taken pursuant to Section
9.15(a) in connection with the establishment, creation or acquisition of a new
Domestic Subsidiary or a new Wholly-Owned Foreign Subsidiary are taken at the
time of the respective Subsidiary Redesignation, (iv) calculations are made by
RPP USA of compliance with the covenants contained in Sections 9.09 and 9.10 (in
each case, giving effect to the last sentence appearing therein) for the
relevant Calculation Period, on a Pro Forma Basis as if the respective
--- -----
Subsidiary Redesignation (as well as all other Subsidiary Redesignations
theretofore consummated after the first day of such Calculation Period) had
occurred on the first day of such Calculation Period, and such calculations
shall show that such financial covenants would have been complied with if the
Subsidiary Redesignation had occurred on the first day of such Calculation
Period (for this purpose, (x) if the first day of the respective Calculation
Period occurs prior to the Initial Borrowing Date, calculated as if the
covenants contained in Sections 9.09 and 9.10 (in each case, giving effect to
the last sentence appearing therein) had been applicable from the first day of
the Calculation Period and (y) using the covenant levels
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contained in such Sections 9.09 and 9.10 for the Test Period ending March 31,
2001 in connection with any Subsidiary Redesignation made prior to March 31,
2001), (v) based on good faith projections prepared by RPP USA for the period
from the date of the respective Subsidiary Redesignation to the date which is
one year thereafter, the level of financial performance measured by the
covenants set forth in Sections 9.09 and 9.10 (in each case, giving effect to
the last sentence appearing therein) shall be better than or equal to such level
as would be required to provide that no Default or Event of Default would exist
under the financial covenants contained in Sections 9.09 and 9.10 ((x) in each
case, giving effect to the last sentence appearing therein and (y) using the
covenant levels contained in such Sections 9.09 and 9.10 for the Test Period
ending March 31, 2001 for any portion of such period prior to March 31, 2001)
through the date which is one year from the date of the respective Subsidiary
Redesignation, (vi) calculations are made by RPP USA demonstrating compliance
with an Adjusted Senior Leverage Ratio not to exceed (i) 3.50:1.00 in the case
of any Subsidiary Redesignation consummated on or prior to June 30, 2002 and
(ii) 3.25:1.00 in the case of any Subsidiary Redesignation consummated
thereafter, in each case on the last day of the relevant Calculation Period, on
a Pro Forma Basis as if the respective Subsidiary Redesignation (as well as all
--- -----
other Subsidiary Redesignations theretofore consummated after the first day of
such Calculation Period) had occurred on the first day of such Calculation
Period, (vii) all representations and warranties contained herein and in the
other Credit Documents shall be true and correct in all material respects with
the same effect as though such representations and warranties had been made on
and as of the date of such Subsidiary Redesignation (both before and after
giving effect thereto), unless stated to relate to a specific earlier date, in
which case such representations and warranties shall be true and correct in all
material respects as of such earlier date, (viii) after giving effect to such
Subsidiary Redesignation and all payments made in connection therewith, the
Total Unutilized Revolving Loan Commitment shall equal or exceed $25,000,000,
and (ix) RPP USA shall have delivered to the Administrative Agent an officer's
certificate executed by an Authorized Officer of RPP USA, certifying to the best
of such officer's knowledge, compliance with the requirements of preceding
clauses (i) through (viii), inclusive, and containing the calculations required
by the preceding clauses (iv), (v), (vi) and (viii).
"Unutilized Revolving Loan Commitment" with respect to any RL Lender
at any time shall mean such RL Lender's Revolving Loan Commitment at such time
less the sum of (i) the aggregate outstanding Principal Amount of all Revolving
- ----
Loans made by such RL Lender and (ii) such RL Lender's RL Percentage of the
total Letter of Credit Outstandings at such time.
"US Borrowers" shall have the meaning provided in the first paragraph
of this Agreement.
"US Borrowers Guaranty" shall mean the guaranty of each US Borrower
pursuant to Section 14.
"US Credit Party" shall mean Holdings, each US Borrower and each
Subsidiary Guarantor that is also a Domestic Subsidiary.
"US Finance Corp." shall have the meaning provided in the first
paragraph of this Agreement.
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"US Guaranteed Obligations" shall mean (i) the full and prompt payment
when due (whether at the stated maturity, by acceleration or otherwise) of the
principal and interest on each Note issued by, and all Loans made to, the US
Borrowers under this Agreement and all reimbursement obligations and Unpaid
Drawings with respect to Letters of Credit, together with all the other
obligations (including obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due) and liabilities
(including, without limitation, indemnities, fees and interest (including any
interest accruing after the commencement of any bankruptcy, insolvency,
receivership or similar proceeding at the rate provided for herein, whether or
not such interest is an allowed claim in any such proceeding) thereon) of the US
Borrower to the Lenders, the Letter of Credit Issuers, the Agents and the
Collateral Agent now existing or hereafter incurred under, arising out of or in
connection with this Agreement and each other Credit Document to which either of
the US Borrowers are a party and the due performance and compliance by the US
Borrowers with all the terms, conditions and agreements contained in the Credit
Agreement and in each such other Credit Document and (ii) the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of all obligations (including obligations which, but for the automatic stay
under Section 362(a) of the Bankruptcy Code, would become due), liabilities and
indebtedness (including any interest accruing after the commencement of any
bankruptcy, insolvency, receivership or similar proceeding at the rate provided
for herein, whether or not such interest is an allowed claim in any such
proceeding) of the US Borrowers owing under any Interest Rate Protection
Agreement or Other Hedging Agreement entered into by either US Borrower with any
Lender or any affiliate thereof (even if such Lender subsequently ceases to be a
Lender under this Agreement for any reason) so long as such Lender or affiliate
participates in such Interest Rate Protection Agreement or Other Hedging
Agreement and their subsequent assigns, if any, whether now in existence or
hereafter arising, and the due performance and compliance with all terms,
conditions and agreements contained therein.
"US Mortgaged Property" shall mean any Mortgaged Property located in
the United States or any State thereof.
"US Pledge Agreements" shall have the meaning provided in Section
5.09.
"US Security Agreement" shall have the meaning provided in Section
5.10.
"US Subsidiaries Guaranty" shall have the meaning provided in Section
5.11(a).
"Voting Stock" shall mean, as to any Person, any class or classes of
capital stock of such Person pursuant to which the holders thereof have the
general voting power under ordinary circumstances to elect at least a majority
of the Board of Directors of such Person.
"Waivable Mandatory Repayment" shall have the meaning provided in
Section 4.02(l).
"Wholly-Owned Domestic Subsidiary" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person which is a Domestic Subsidiary.
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"Wholly-Owned Foreign Subsidiary" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person which is a Foreign Subsidiary.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying shares
and/or other nominal amounts of shares required to be held other than by such
Person under applicable law) is at the time owned by such Person and/or one or
more Wholly-Owned Subsidiaries of such Person and (ii) any partnership,
association, joint venture or other entity in which such Person and/or one or
more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such
time; provided that (x) except as provided in the last sentence of the
--------
definition of Subsidiary and (y) other than in the definition of Wholly-Owned
Unrestricted Subsidiary, no Unrestricted Subsidiary shall be considered a
Wholly-Owned Subsidiary.
"Wholly-Owned Unrestricted Subsidiary" shall mean any Wholly-Owned
Subsidiary which is an Unrestricted Subsidiary.
"Written" (whether lower or upper case) or "in writing" shall mean any
form of written communication or a communication by means of telex, facsimile
device, telegraph or cable.
SECTION 12. The Agents.
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12.01 Appointment. Each Lender hereby irrevocably designates and
-----------
appoints MSSF as Administrative Agent (for purposes of this Section 12, the term
"Administrative Agent" shall mean MSSF in its capacity as Administrative Agent
and Lead Arranger hereunder and Morgan Stanley & Co. Incorporated as Collateral
Agent pursuant to the Security Documents), Salomon as Syndication Agent, and
Morgan Guaranty as Documentation Agent, in each case to act as specified herein
and in the other Credit Documents, and each such Lender hereby irrevocably
authorizes the Agents to take such action on its behalf under the provisions of
this Agreement and the other Credit Documents and to exercise such powers and
perform such duties as are expressly delegated to the Agents by the terms of
this Agreement and the other Credit Documents, together with such other powers
as are reasonably incidental thereto. Each Agent agrees to act as such upon the
express conditions contained in this Section 12. Notwithstanding any provision
to the contrary elsewhere in this Agreement or in any other Credit Document, no
Agent shall have any duties or responsibilities, except those expressly set
forth herein or in the other Credit Documents, or any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against any Agent. The provisions of this Section 12 are solely for the benefit
of the Agents and the Lenders, and neither Holdings nor any of its Subsidiaries
shall have any rights as a third party beneficiary of any of the provisions
hereof. In performing its functions and duties under this Agreement, each of
the Agents shall act solely as agent of the Lenders and does not assume and
shall not be deemed to have assumed any obligation or relationship of agency or
trust with or for Holdings or any of its Subsidiaries.
12.02 Delegation of Duties. Each Agent may execute any of its duties
--------------------
under this Agreement or any other Credit Document by or through agents or
attorneys-in-fact and shall be
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entitled to advice of counsel concerning all matters pertaining to such duties.
No Agent shall be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
12.03 Exculpatory Provisions. No Agent nor any of their respective
----------------------
officers, directors, employees, agents, attorneys-in-fact or affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such
person in its capacity as Agent under or in connection with this Agreement or
the other Credit Documents (except for its own gross negligence or willful
misconduct as determined by a court of competent jurisdiction in a final and
non-appealable decision) or (ii) responsible in any manner to any of the Lenders
for any recitals, statements, representations or warranties made by Holdings,
any of its Subsidiaries or any of their respective officers contained in this
Agreement or the other Credit Documents, any other Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by such Agent under or in connection with, this Agreement or any
other Document or for any failure of Holdings or any of its Subsidiaries or any
of their respective officers to perform its obligations hereunder or thereunder.
No Agent shall be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or the other Documents, or to inspect the
properties, books or records of Holdings or any of its Subsidiaries. No Agent
shall be responsible to any Lender for the effectiveness, genuineness, validity,
enforceability, collectability or sufficiency of this Agreement or any other
Document or for any representations, warranties, recitals or statements made
herein or therein or made in any written or oral statement or in any financial
or other statements, instruments, reports, certificates or any other documents
in connection herewith or therewith furnished or made by any Agent to the
Lenders or by or on behalf of Holdings or any of its Subsidiaries to any Agent
or any Lender or be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or agreements
contained herein or therein or as to the use of the proceeds of the Loans or of
the existence or possible existence of any Default or Event of Default.
12.04 Reliance by Agents. Each Agent shall be entitled to rely, and
------------------
shall be fully protected in relying, upon any note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, facsimile, telex
or teletype message, statement, order or other document or conversation
reasonably believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to Holdings or any of its
Subsidiaries), independent accountants and other experts selected by any Agent.
Each Agent shall be fully justified in failing or refusing to take any action
under this Agreement or any other Credit Document unless it shall first receive
such advice or concurrence of the Required Lenders as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agents shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
other Credit Documents in accordance with a request of the Required Lenders, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders.
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12.05 Notice of Default. No Agent shall be deemed to have knowledge
-----------------
or notice of the occurrence of any Default or Event of Default unless such Agent
has actually received notice from a Lender or a Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default." In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders; provided that, unless and until the Administrative Agent
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shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
12.06 Nonreliance on Agents and Other Lenders. Each Lender expressly
---------------------------------------
acknowledges that no Agent nor any of its respective officers, directors,
employees, agents, attorneys-in-fact or affiliates has made any representations
or warranties to it and that no act by any Agent hereinafter taken, including
any review of the affairs of Holdings or any of its Subsidiaries, shall be
deemed to constitute any representation or warranty by such Agent to any Lender.
Each Lender represents to each Agent that it has, independently and without
reliance upon such Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, assets, operations, property, financial and
other condition, prospects and creditworthiness of Holdings and its Subsidiaries
and made its own decision to make its Loans hereunder and enter into this
Agreement. Each Lender also represents that it will, independently and without
reliance upon any Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, assets, operations, property, financial and other
condition, prospects and creditworthiness of Holdings and its Subsidiaries. No
Agent shall have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, assets,
property, financial and other condition, prospects or creditworthiness of
Holdings or any of its Subsidiaries which may come into the possession of such
Agent, the Documentation Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates.
12.07 Indemnification. The Lenders agree to indemnify each Agent in
---------------
its capacity as such ratably according to their respective "percentages" as used
in determining the Required Lenders at such time or, if the Commitments have
terminated and all Loans have been repaid in full, as determined immediately
prior to such termination and repayment (with such "percentages" to be
determined as if there are no Defaulting Lenders), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, reasonable expenses or disbursements of any kind whatsoever which may at
any time (including, without limitation, at any time following the payment of
the Obligations) be imposed on, incurred by or asserted against such Agent in
its capacity as such in any way relating to or arising out of this Agreement or
any other Credit Document, or any documents contemplated by or referred to
herein or the transactions contemplated hereby or any action taken or omitted to
be taken by such Agent under or in connection with any of the foregoing, but
only to the extent that any of the
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foregoing is not paid by Holdings or any of its Subsidiaries; provided that no
--------
Lender shall be liable to any Agent for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting primarily from the gross negligence
or willful misconduct of such Agent (as determined by a court of competent
jurisdiction in a final and non-appealable decision). If any indemnity furnished
to any Agent for any purpose shall, in the opinion of such Agent be insufficient
or become impaired, such Agent may call for additional indemnity and cease, or
not commence, to do the acts indemnified against until such additional indemnity
is furnished. The agreements in this Section 12.07 shall survive the payment of
all Obligations.
12.08 Agents in their Individual Capacities. Each Agent and their
-------------------------------------
respective affiliates may make loans to, accept deposits from and generally
engage in any kind of business with Holdings and its Subsidiaries as though such
Agent were not an Agent hereunder. With respect to the Loans made by it and all
Obligations owing to it, each Agent shall have the same rights and powers under
this Agreement as any Lender and may exercise the same as though it were not an
Agent, and the terms "Lender" and "Lenders" shall include each Agent in its
individual capacity.
12.09 Holders. The Administrative Agent may deem and treat the payee
-------
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person or entity who, at the time of making such
request or giving such authority or consent, is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee, assignee or
indorsee, as the case may be, of such Note or of any Note or Notes issued in
exchange therefor.
12.10 Resignation of the Agents. (a) The Administrative Agent may
-------------------------
resign from the performance of all its functions and duties hereunder and/or
under the other Credit Documents at any time by giving 30 Business Days' prior
written notice to Holdings and the Lenders. Such resignation shall take effect
upon the appointment of a successor Administrative Agent pursuant to clauses (b)
and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Required Lenders shall
appoint a successor Administrative Agent hereunder or thereunder who shall be a
commercial bank or trust company reasonably acceptable to Holdings.
(c) If a successor Administrative Agent shall not have been so
appointed within such 30 Business Day period, the Administrative Agent, with the
consent of Holdings (which consent shall not be unreasonably withheld or
delayed), shall then appoint a successor Administrative Agent who shall serve as
Administrative Agent hereunder or thereunder until such time, if any, as the
Required Lenders appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed
pursuant to clause (b) or (c) above by the 30th Business Day after the date such
notice of resignation was given by the Administrative Agent, the Administrative
Agent's resignation shall become
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effective and the Required Lenders shall thereafter perform all the duties of
the Administrative Agent hereunder and/or under any other Credit Document until
such time, if any, as the Lenders appoint a successor Administrative Agent as
provided above.
(e) Each of the Syndication Agent and the Documentation Agent may
resign from the performance of all its functions and duties hereunder and/or
under the other Credit Documents at any time by giving five Business Days' prior
written notice to the Lenders. Such resignation shall take effect at the end of
such five Business Day period.
12.11 Power of Attorney. Each of the Administrative Agent and the
-----------------
Collateral Agent is hereby expressly authorized (with the right of sub-
delegation) by, and on behalf of, each other Agent and each Lender to enter into
any Security Document required to be executed and delivered pursuant to this
Agreement or the other Credit Documents in order to secure the obligations of
the Borrowers and Guarantors hereunder and thereunder. Each of the
Administrative Agent and the Collateral Agent shall be entitled to all
declarations, and may appoint any attorney-in-fact to act on its behalf, as it
considers necessary or useful in connection with the entering into of such
Security Documents. The Administrative Agent and the Collateral Agent shall
further be entitled to rescind, amend and/or execute new and different versions
of the aforementioned Security Documents in accordance with the terms of this
Agreement. Each Lender and each of the Syndication Agent and the Documentation
Agent hereby grants to each of the Administrative Agent and the Collateral Agent
an irrevocable power-of-attorney, in such Lender's and such Agent's name, to
take the actions contemplated above in this Section 12.11.
SECTION 13. Holdings Guaranty.
-----------------
13.01 Guaranty. In order to induce the Agents, the Collateral Agent,
--------
the Letter of Credit Issuers and the Lenders to enter into this Agreement and to
extend credit hereunder, and to induce the other Guaranteed Creditors to enter
into Interest Rate Protection Agreements and Other Hedging Agreements and in
recognition of the direct benefits to be received by Holdings from the proceeds
of the Loans, the issuance of the Letters of Credit and the entering into of
such Interest Rate Protection Agreements and Other Hedging Agreements, Holdings
hereby agrees with the Guaranteed Creditors as follows: Holdings hereby and
unconditionally and irrevocably guarantees, as primary obligor and not merely as
surety, the full and prompt payment when due, whether upon maturity,
acceleration or otherwise, of any and all of the Guaranteed Obligations of each
Borrower to the Guaranteed Creditors. If any or all of the Guaranteed
Obligations of any Borrower to the Guaranteed Creditors becomes due and payable
hereunder, Holdings, unconditionally and irrevocably, promises to pay such
indebtedness to the Administrative Agent and/or the other Guaranteed Creditors,
or order, on demand, together with any and all expenses which may be incurred by
the Administrative Agent and the other Guaranteed Creditors in collecting any of
the Guaranteed Obligations of any Borrower. If claim is ever made upon any
Guaranteed Creditor for repayment or recovery of any amount or amounts received
in payment or on account of any of the Guaranteed Obligations of any Borrower
and any of the aforesaid payees repays all or part of said amount by reason of
(i) any judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property or (ii) any settlement or
compromise of any such claim effected by such payee with any such claimant
(including any Borrower), then and in such event Holdings agrees that any such
judgment, decree, order, settle-
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ment or compromise shall be binding upon Holdings, notwithstanding any
revocation of this Guaranty or other instrument evidencing any liability of any
Borrower, and Holdings shall be and remain liable to the aforesaid payees
hereunder for the amount so repaid or recovered to the same extent as if such
amount had never originally been received by any such payee.
13.02 Bankruptcy. Additionally, Holdings unconditionally and
----------
irrevocably guarantees the payment of any and all of the Guaranteed Obligations
of each Borrower to the Guaranteed Creditors whether or not due or payable by
such Borrower upon the occurrence of any of the events specified in Section
10.05, and unconditionally, irrevocably, jointly and severally promises to pay
such indebtedness to the Guaranteed Creditors, or order, on demand.
13.03 Nature of Liability. The liability of Holdings hereunder is
-------------------
exclusive and independent of any security for or other guaranty of the
Guaranteed Obligations of any Borrowers, whether executed by Holdings, any other
guarantor or by any other party, and the liability of Holdings hereunder shall
not be affected or impaired by (a) any direction as to application of payment by
any Borrower or by any other party, or (b) any other continuing or other
guaranty, undertaking or maximum liability of a guarantor or of any other party
as to the Guaranteed Obligations of any Borrower, or (c) any payment on or in
reduction of any such other guaranty or undertaking, or (d) any dissolution,
termination or increase, decrease or change in personnel by any Borrower, or (e)
any payment made to any Guaranteed Creditor on the Guaranteed Obligations of any
Borrower which any such Guaranteed Creditor repays to any Borrower or any other
Subsidiary of Holdings pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding, and
Holdings waives any right to the deferral or modification of its obligations
hereunder by reason of any such proceeding, or (f) any action or inaction of the
type described in Section 13.05.
13.04 Independent Obligation. The obligations of Holdings hereunder
----------------------
are independent of the obligations of any other guarantor, any other party or
any Borrower, and a separate action or actions may be brought and prosecuted
against Holdings whether or not action is brought against any other guarantor,
any other party or any Borrower and whether or not any other guarantor, any
other party or any Borrower be joined in any such action or actions. Holdings
waives, to the fullest extent permitted by law, the benefit of any statute of
limitations affecting its liability hereunder or the enforcement thereof. Any
payment by any Borrower or other circumstance which operates to toll any statute
of limitations as to any Borrower shall operate to toll the statute of
limitations as to Holdings.
13.05 Authorization. Holdings authorizes the Guaranteed Creditors
-------------
without notice or demand (except as shall be required by applicable statute and
cannot be waived), and without affecting or impairing its liability hereunder,
from time to time to:
(a) change the manner, place or terms of payment of, and/or change
or extend the time of payment of, renew, increase, accelerate or alter, any of
the Guaranteed Obligations of any Borrower (including any increase or decrease
in the principal amount thereof or the rate of interest or fees thereon), any
security therefor, or any liability incurred directly or indirectly in respect
thereof, and the Guaranty herein made shall apply to such Guaranteed Obligations
as so changed, extended, renewed or altered;
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(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, impair, surrender, realize upon or
otherwise deal with in any manner and in any order any property by whomsoever at
any time pledged or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations of any Borrower or any liabilities (including any of those
hereunder) incurred directly or indirectly in respect thereof or hereof, and/or
any offset thereagainst;
(c) exercise or refrain from exercising any rights against any
Borrower, any other Credit Party or others or otherwise act or refrain from
acting;
(d) release or substitute any one or more endorsers, guarantors,
any Borrower, other Credit Parties or other obligors;
(e) settle or compromise any of the Guaranteed Obligations of any
Borrower, any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of any Borrower to its creditors other than the
Guaranteed Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of any Borrower to the Guaranteed Creditors regardless
of what liability or liabilities of any Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, this Agreement, any other Credit Document, any Interest Rate
Protection Agreement or any Other Hedging Agreement or any of the instruments or
agreements referred to herein or therein, or otherwise amend, modify or
supplement this Agreement, any other Credit Document, any Interest Rate
Protection Agreement or any Other Hedging Agreement or any of such other
instruments or agreements; and/or
(h) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of
Holdings from its liabilities under this Guaranty.
13.06 Reliance. It is not necessary for any Guaranteed Creditor to
--------
inquire into the capacity or powers of Holdings or any of its Subsidiaries or
the officers, directors, partners or agents acting or purporting to act on their
behalf, and any Guaranteed Obligations made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder.
13.07 Subordination. Any indebtedness of any Borrower now or
-------------
hereafter owing to Holdings is hereby subordinated to the Guaranteed Obligations
of such Borrower owing to the Guaranteed Creditors; and if the Administrative
Agent so requests at a time when an Event of Default exists, all such
indebtedness of any Borrower to Holdings shall be collected, enforced and
received by Holdings for the benefit of the Guaranteed Creditors and be paid
over to the Administrative Agent on behalf of the Guaranteed Creditors on
account of the Guaranteed Obligations of the Borrowers to the Guaranteed
Creditors, but without affecting or impairing in any manner the liability of
Holdings under the other provisions of this Guaranty. Prior to the transfer by
Holdings of any note or negotiable instrument evidencing any such indebtedness
of
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any Borrower to Holdings, Holdings shall mark such note or negotiable instrument
with a legend that the same is subject to this subordination. Without limiting
the generality of the foregoing, Holdings hereby agrees with the Guaranteed
Creditors that it will not exercise any right of subrogation which it may at any
time otherwise have as a result of this Guaranty (whether contractual, under
Section 509 of the Bankruptcy Code or otherwise) until all Guaranteed
Obligations have been irrevocably paid in full in cash.
13.08 Waiver. (a) Holdings waives any right (except as shall be
------
required by applicable statute and cannot be waived) to require any Guaranteed
Creditor to (i) proceed against any Borrower, any other guarantor or any other
party, (ii) proceed against or exhaust any security held from any Borrower, any
other guarantor or any other party or (iii) pursue any other remedy in any
Guaranteed Creditor's power whatsoever. Holdings waives any defense based on or
arising out of any defense of any Borrower, any other guarantor or any other
party, other than payment in full in cash of the Guaranteed Obligations, based
on or arising out of the disability of any Borrower, any other guarantor or any
other party, or the validity, legality or unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of any Borrower other than payment in full in cash of the
Guaranteed Obligations. The Guaranteed Creditors may, at their election,
foreclose on any security held by any Agent, the Collateral Agent or any other
Guaranteed Creditor by one or more judicial or nonjudicial sales, whether or not
every aspect of any such sale is commercially reasonable (to the extent such
sale is permitted by applicable law), or exercise any other right or remedy the
Guaranteed Creditors may have against any Borrower, or any other party, or any
security, without affecting or impairing in any way the liability of Holdings
hereunder except to the extent the Guaranteed Obligations have been paid in
cash. Holdings waives any defense arising out of any such election by the
Guaranteed Creditors, even though such election operates to impair or extinguish
any right of reimbursement or subrogation or other right or remedy of Holdings
against any Borrower, or any other party or any security.
(b) Holdings waives all presentments, demands for performance,
protests and notices, including, without limitation, notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of this Guaranty,
and notices of the existence, creation or incurring of new or additional
Guaranteed Obligations. Holdings assumes all responsibility for being and
keeping itself informed of the Borrowers' financial condition and assets, and of
all other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks which Holdings assumes
and incurs hereunder, and agrees that neither Agent nor any of the other
Guaranteed Creditors shall have any duty to advise Holdings of information known
to them regarding such circumstances or risks.
13.09 Payment. All payments made by Holdings pursuant to this
-------
Section 13 shall be made in the respective Approved Currency in which the
respective Guaranteed Obligations are then due and payable (after giving effect,
in the circumstances contemplated by Section 1.14, to any conversion occurring
pursuant thereto). All payments made by Holdings pursuant to this Section 13
will be made without setoff, counterclaim or other defense.
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SECTION 14. US Borrowers Guaranty.
---------------------
14.01 Guaranty. In order to induce the Agents, the Collateral Agent,
--------
the Letter of Credit Issuers and the Lenders to enter into this Agreement and to
extend credit hereunder, and to induce the other Guaranteed Creditors to enter
into Interest Rate Protection Agreements and Other Hedging Agreements with the
Dutch Borrower and in recognition of the direct benefits to be received by each
US Borrower from the proceeds of the Loans made to the Dutch Borrower and the
entering into of such Interest Rate Protection Agreements and Other Hedging
Agreements, each US Borrower jointly and severally agrees with the Guaranteed
Creditors as follows: Each US Borrower hereby unconditionally, irrevocably,
jointly and severally guarantees, as primary obligor and not merely as surety,
the full and prompt payment when due, whether upon maturity, acceleration or
otherwise, of any and all of the Dutch Guaranteed Obligations. If any or all of
the Dutch Guaranteed Obligations becomes due and payable hereunder, each US
Borrower, unconditionally, irrevocably and jointly and severally promises to pay
such indebtedness to the Administrative Agent and/or the Guaranteed Creditors,
or order, on demand, together with any and all expenses which may be incurred by
the Administrative Agent and the other Guaranteed Creditors in collecting any of
the Dutch Guaranteed Obligations. If claim is ever made upon any Guaranteed
Creditor for repayment or recovery of any amount or amounts received in payment
or on account of any of the Dutch Guaranteed Obligations and any of the
aforesaid payees repays all or part of said amount by reason of (i) any
judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property or (ii) any settlement or
compromise of any such claim effected by such payee with any such claimant
(including the Dutch Borrower), then and in such event each US Borrower agrees
that any such judgment, decree, order, settlement or compromise shall be binding
upon such US Borrower, notwithstanding any revocation of this Guaranty or any
other instrument evidencing any liability of the Dutch Borrower, and each US
Borrower shall be and remain liable to the aforesaid payees hereunder for the
amount so repaid or recovered to the same extent as if such amount had never
originally been received by any such payee.
14.02 Bankruptcy. Additionally, each US Borrower unconditionally,
----------
irrevocably and jointly and severally guarantees the payment of any and all of
the Dutch Guaranteed Obligations whether or not due or payable by the Dutch
Borrower upon the occurrence of any of the events specified in Section 10.05,
and unconditionally, irrevocably and jointly and severally promises to pay such
indebtedness to the Guaranteed Creditors, or order, on demand.
14.03 Nature of Liability. The liability of each US Borrower
-------------------
hereunder is exclusive and independent of any security for or other guaranty of
the Dutch Guaranteed Obligations whether executed by any other guarantor or by
any other party, and the liability of each US Borrower hereunder is not affected
or impaired by (a) any direction as to application of payment by the Dutch
Borrower or by any other party, or (b) any other continuing or other guaranty,
undertaking or maximum liability of a guarantor or of any other party as to the
Dutch Guaranteed Obligations, or (c) any payment on or in reduction of any such
other guaranty or undertaking, or (d) any dissolution, termination or increase,
decrease or change in personnel by the Dutch Borrower, or (e) any payment made
to the Guaranteed Creditors on the Dutch Guaranteed Obligations which any such
Guaranteed Creditor repays to the Dutch Borrower pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceed-
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ing, and each US Borrower waives any right to the deferral or modification of
its obligations hereunder by reason of any such proceeding or (f) any action or
inaction of the type described in Section 14.05.
14.04 Independent Obligation. The obligations of each US Borrower
----------------------
hereunder are independent of the obligations of any other guarantor, any other
party, or the Dutch Borrower, and a separate action or actions may be brought
and prosecuted against either US Borrower whether or not action is brought
against any other guarantor, any other party or the Dutch Borrower and whether
or not any other guarantor, any other party or the Dutch Borrower be joined in
any such action or actions. Each US Borrower waives, to the full extent
permitted by law, the benefit of any statute of limitations affecting its
liability hereunder or the enforcement thereof. Any payment by the Dutch
Borrower or other circumstance which operates to toll any statute of limitations
as to the Dutch Borrower shall operate to toll the statute of limitations as to
each US Borrower.
14.05 Authorization. Each US Borrower authorizes the Guaranteed
-------------
Creditors without notice or demand (except as shall be required by applicable
statute and cannot be waived), and without affecting or impairing its liability
hereunder, from time to time to:
(a) change the manner, place or terms of payment of, and/or change
or extend the time of payment of, renew, increase, accelerate or alter, any of
the Dutch Guaranteed Obligations (including any increase or decrease in the rate
of interest thereon), any security therefor, or any liability incurred directly
or indirectly in respect thereof, and the Guaranty herein made shall apply to
the Dutch Guaranteed Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Dutch Guaranteed
Obligations and sell, exchange, release, impair, surrender, realize upon or
otherwise deal with in any manner and in any order any property by whomsoever at
any time pledged or mortgaged to secure, or howsoever securing, the Dutch
Guaranteed Obligations or any liabilities (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and/or any offset
there against;
(c) exercise or refrain from exercising any rights against the
Dutch Borrower, any other Credit Party or others or otherwise act or refrain
from acting;
(d) release or substitute any one or more endorsers, guarantors,
the Dutch Borrower or other obligors;
(e) settle or compromise any of the Dutch Guaranteed Obligations,
any security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Dutch Borrower to its creditors other than
the Guaranteed Creditors;
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(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Dutch Borrower to the Guaranteed Creditors
regardless of what liability or liabilities of the Dutch Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, this Agreement, any other Credit Document, any Interest Rate
Protection Agreement or Other Hedging Agreement or any of the instruments or
agreements referred to herein or therein, or otherwise amend, modify or
supplement this Agreement, any other Credit Document, any Interest Rate
Protection Agreement or Other Hedging Agreement or any of such other instruments
or agreements; and/or
(h) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of either
US Borrower from its liabilities under this Guaranty.
14.06 Reliance. It is not necessary for the Guaranteed Creditors to
--------
inquire into the capacity or powers of Holdings or any of its Subsidiaries or
the officers, directors, partners or agents acting or purporting to act on their
behalf, and any Dutch Guaranteed Obligations made or created in reliance upon
the professed exercise of such powers shall be guaranteed hereunder.
14.07 Subordination. Any indebtedness of the Dutch Borrower now or
-------------
hereafter owing to either US Borrower is hereby subordinated to the Dutch
Guaranteed Obligations of the Dutch Borrower owing to the Guaranteed Creditors;
and if the Administrative Agent so requests at a time when an Event of Default
exists, all such indebtedness of the Dutch Borrower to either US Borrower shall
be collected, enforced and received by each US Borrower for the benefit of the
Dutch Guaranteed Creditors and be paid over to the Administrative Agent on
behalf of the Guaranteed Creditors on account of the Dutch Guaranteed
Obligations to the Guaranteed Creditors, but without affecting or impairing in
any manner the liability of either US Borrower under the other provisions of
this Guaranty. Prior to the transfer by either US Borrower of any note or
negotiable instrument evidencing any of the indebtedness of the Dutch Borrower
to either US Borrower, such US Borrower shall mark such note or negotiable
instrument with a legend that the same is subject to this subordination.
Without limiting the generality of the foregoing, each US Borrower hereby agrees
with the Guaranteed Creditors that it will not exercise any right of subrogation
which it may at any time otherwise have as a result of this Guaranty (whether
contractual, under Section 509 of the Bankruptcy Code or otherwise) until all of
the Dutch Guaranteed Obligations have been irrevocably paid in full in cash.
14.08 Waiver. (a) Each US Borrower waives any right (except as
------
shall be required by applicable statute and cannot be waived) to require any
Guaranteed Creditor to (i) proceed against the Dutch Borrower, any other
guarantor or any other party, (ii) proceed against or exhaust any security held
from the Dutch Borrower, any other guarantor or any other party or (iii) pursue
any other remedy in any Guaranteed Creditor's power whatsoever. Each US
Borrower waives any defense based on or arising out of any defense of the Dutch
Borrower, any other guarantor or any other party, other than payment in full in
cash of the Guaranteed Obligations, based on or arising out of the disability of
the Dutch Borrower, any other guarantor or any other party, or the
unenforceability of the Guaranteed Obligations or any part thereof from any
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cause, or the cessation from any cause of the liability of either US Borrower
other than payment in full in cash of the Dutch Guaranteed Obligations. The
Guaranteed Creditors may, at their election, foreclose on any security held by
any Agent, the Collateral Agent or any other Guaranteed Creditor by one or more
judicial or nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable (to the extent such sale is permitted by applicable
law), or exercise any other right or remedy the Guaranteed Creditors may have
against the Dutch Borrower or any other party, or any security, without
affecting or impairing in any way the liability of either US Borrower hereunder
except to the extent the Dutch Guaranteed Obligations have been paid in cash.
Each US Borrower waives any defense arising out of any such election by the
Guaranteed Creditors, even though such election operates to impair or extinguish
any right of reimbursement or subrogation or other right or remedy of any US
Borrower against the Dutch Borrower or any other party or any security.
(b) Each US Borrower waives all presentments, demands for
performance, protests and notices, including, without limitation, notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Guaranty, and notices of the existence, creation or incurring of new or
additional Dutch Guaranteed Obligations. Each US Borrower assumes all
responsibility for being and keeping itself informed of the Dutch Borrowers'
financial condition and assets, and of all other circumstances bearing upon the
risk of nonpayment of the Dutch Guaranteed Obligations and the nature, scope and
extent of the risks which each US Borrower assumes and incurs hereunder, and
agrees that the Guaranteed Creditors shall have no duty to advise either US
Borrower of information known to them regarding such circumstances or risks.
14.09 Payment. All payments made by each US Borrower pursuant to this
-------
Section 14 shall be made in the respective Approved Currency in which the
respective Guaranteed Obligations are then due and payable (after giving effect,
in the circumstances contemplated by Section 1.14, to any conversion occurring
pursuant thereto). All payments made by each US Borrower pursuant to this
Section 14 will be made without setoff, counterclaim or other defense.
SECTION 15. Miscellaneous.
-------------
15.01 Payment of Expenses, etc. The Borrowers jointly and severally
-------------------------
agree to: (i) pay all reasonable out-of-pocket costs and expenses of the Agents
and the Collateral Agent (including, without limitation, the reasonable fees and
disbursements of White & Case LLP and local and foreign counsel to the Agents
and the Collateral Agent) in connection with the negotiation, preparation,
execution and delivery of the Credit Documents and the documents and instruments
referred to therein and any amendment, waiver or consent relating thereto and in
connection with the Agents' syndication efforts with respect to this Agreement
(it being understood that, for purposes of this clause (i), the Agents shall use
the same counsel); (ii) pay all reasonable out-of-pocket costs and expenses of
each Agent, the Collateral Agent, each Letter of Credit Issuer and each of the
Lenders in connection with the enforcement of the Credit Documents and the
documents and instruments referred to therein and, after an Event of Default
shall have occurred and be continuing, the protection of the rights of each
Agent, the Collateral Agent each Letter of Credit Issuer and each of the Lenders
thereunder (including, without limitation, the reasonable fees and disbursements
of counsel (including in-house counsel) and consultants for each Agent, for the
Collateral Agent, for each Letter of Credit Issuer and for each of the Lenders);
(iii) pay
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and hold each of the Lenders harmless from and against any and all present and
future stamp and other similar taxes with respect to the foregoing matters and
save each of the Lenders harmless from and against any and all liabilities with
respect to or resulting from any delay or omission (other than to the extent
attributable to such Lender) to pay such taxes; and (iv) indemnify each Agent,
the Collateral Agent, each Letter of Credit Issuer and each Lender and their
respective officers, directors, employees, representatives, trustees, affiliates
and agents from and hold each of them harmless against any and all losses,
liabilities, claims, damages or expenses incurred by any of them as a result of,
or arising out of, or in any way related to, or by reason of, (a) any
investigation, litigation or other proceeding (whether or not any Agent, the
Collateral Agent, any Letter of Credit Issuer or any Lender is a party thereto
and whether or not any such investigation, litigation or other proceeding is
between or among any Agent, the Collateral Agent, any Letter of Credit Issuer,
any Lender, any Credit Party or any third Person or otherwise) related to the
entering into and/or performance of this Agreement or any other Document or the
use of the proceeds of any Loans hereunder or any drawing on any Letter of
Credit or the Transaction or the consummation of any other transactions
contemplated in any Document (but excluding any such losses, liabilities,
claims, damages or expenses to the extent incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified (as determined
by a court of competent jurisdiction in a final and non-appealable decision)),
or (b) the actual or alleged presence of Hazardous Materials in the air, surface
water or groundwater or on the surface or subsurface of any Real Property or any
Environmental Claim, in each case, including, without limitation, the reasonable
fees and disbursements of counsel and independent consultants incurred in
connection with any such investigation, litigation or other proceeding. To the
extent that the undertaking to indemnify, pay or hold harmless any Agent or any
Lender set forth in the preceding sentence may be unenforceable because it is
violative of any law or public policy, the Borrowers jointly and severally shall
make the maximum contribution to the payment and satisfaction of each of the
indemnified liabilities which is permissible under applicable law.
15.02 Right of Setoff. In addition to any rights now or hereafter
---------------
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence of an Event of Default, each Agent, the
Collateral Agent, each Letter of Credit Issuer and each Lender is hereby
authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to any Credit Party or to any other Person,
any such notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special) and any other Indebtedness at
any time held or owing by such Agent, the Collateral Agent, such Letter of
Credit Issuer or such Lender (including, without limitation, by branches and
agencies of such Agent, the Collateral Agent, such Letter of Credit Issuer and
such Lender wherever located) to or for the credit or the account of any Credit
Party against and on account of the Obligations of any Credit Party to such
Agent, the Collateral Agent, such Letter of Credit Issuer or such Lender under
this Agreement or under any of the other Credit Documents, including, without
limitation, all interests in Obligations of any Credit Party purchased by such
Lender pursuant to Section 15.06(b), and all other claims of any nature or
description arising out of or connected with this Agreement or any other Credit
Document, irrespective of whether or not such Agent, the Collateral Agent, such
Letter of Credit Issuer or such Lender shall have made any demand hereunder and
although said Obligations shall be contingent or unmatured.
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15.03 Notices; Authorized Representative. Except as otherwise
----------------------------------
expressly provided herein, all notices and other communications provided for
hereunder shall be in writing (including telegraphic, telex, facsimile or cable
communication) and mailed, telegraphed, telexed, telecopied, cabled or
delivered, if to any Credit Party, at the address specified opposite its
signature below or in the other relevant Credit Documents, as the case may be;
if to the Administrative Agent or any Letter of Credit Issuer, at such Person's
applicable Notice Office; if to any Lender, at its address specified for such
Lender on Schedule II; or, at such other address as shall be designated by any
party in a written notice to the other parties hereto. All such notices and
communications shall be mailed, telegraphed, telexed, telecopied or cabled or
sent by overnight courier, and shall be effective when received.
15.04 Benefit of Agreement. (a) This Agreement shall be binding
--------------------
upon and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; provided, however, no Credit Party may assign
-------- -------
or transfer any of its rights, obligations or interest hereunder or under any
other Credit Document without the prior written consent of each of the Lenders
and, provided further, that, although any Lender may grant participations in its
----------------
rights hereunder, such Lender shall remain a "Lender" for all purposes hereunder
(and may not transfer or assign all or any portion of its Commitments or Loans
hereunder except as provided in Section 15.04(b)) and the participant shall not
constitute a "Lender" hereunder and, provided further, that no Lender shall
----------------
transfer or grant any participation under which the participant shall have
rights to approve any amendment to or waiver of this Agreement or any other
Credit Document except to the extent such amendment or waiver would (i) extend
the final scheduled maturity of any Loan, Note or Letter of Credit (unless such
Letter of Credit is not extended beyond the Revolving Loan Maturity Date) in
which such participant is participating, or reduce the rate or extend the time
of payment of interest or Fees thereon (except in connection with a waiver of
applicability of any post-default increase in interest rates) or reduce the
principal amount thereof, or increase the amount of the participant's
participation over the amount thereof then in effect (it being understood that a
waiver of any Default or Event of Default or of a mandatory reduction in the
Total Commitment or of a mandatory repayment of Loans shall not constitute a
change in the terms of such participation, that an increase in any Commitment or
Loan shall be permitted without the consent of any participant if the
participant's participation is not increased as a result thereof and that any
amendment or modification to the financial definitions in this Agreement or to
Section 15.07(a) shall not constitute a reduction in any rate of interest or
fees for purposes of this clause (i)), (ii) consent to the assignment or
transfer by the US Borrowers or the Dutch Borrower of any of their or its rights
and obligations under this Agreement or (iii) release all or substantially all
of the Collateral under all of the Security Documents (except as expressly
provided in the Security Documents) supporting any of the Loans hereunder in
which such participant is participating. In the case of any such participation,
the participant shall not have any rights under this Agreement or any of the
other Credit Documents (the participant's rights against such Lender in respect
of such participation to be those set forth in the agreement executed by such
Lender in favor of the participant relating thereto) and, except as set forth in
Section 1.14, all amounts payable by the US Borrowers or the Dutch Borrower
hereunder shall be determined as if such Lender had not sold such participation.
(b) Notwithstanding the foregoing, any Lender (or any Lender together
with one or more other Lenders) may (x) assign all or a portion of its
Commitments and related
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outstanding Obligations (or, if the Commitments with respect to the relevant
Tranche have terminated, outstanding Obligations) hereunder to (i) its parent
company and/or any affiliate of such Lender which is at least 50% owned by such
Lender or its parent company or to one or more Lenders or (ii) in the case of
any Lender that is a fund that invests in bank loans or that manages (directly
or through an Affiliate) any fund that invests in bank loans, any fund that
invests in bank loans and is managed by the same investment advisor as such
Lender, by an Affiliate of such investment advisor or by such Lender, as the
case may be, or (y) assign all, or if less than all, a portion equal to at least
$1,000,000 in the aggregate for the assigning Lender or assigning Lenders, of
such Commitments and related outstanding Obligations (or, if the Commitments
with respect to the relevant Tranche have terminated, outstanding Obligations)
hereunder to one or more Eligible Transferees (treating (a) any fund that
invests in loans and (b) any other fund that invests in loans and is managed by
the same investment advisor as such fund or by an Affiliate of such investment
advisor, as a single Eligible Transferee), each of which assignees shall become
a party to this Agreement as a Lender by execution of an Assignment and
Assumption Agreement, provided that (i) at such time Schedule I shall be deemed
--------
modified to reflect the Commitments and/or outstanding Loans, as the case may
be, of such new Lender and of the existing Lenders, (ii) upon surrender of the
old Notes (or the furnishing of a standard indemnity letter from the respective
assigning Lender in respect of any lost Notes reasonably acceptable to the
applicable Borrowers or Borrower), new Notes will be issued, at the Borrowers'
expense, to such new Lenders and to the assigning Lender, such new Notes to be
in conformity with the requirements of Section 1.05 (with appropriate
modifications) to the extent needed to reflect the revised Commitments and/or
outstanding Loans, as the case may be, (iii) the consent of the Administrative
Agent and, so long as no Default or Event of Default is then in existence, RPP
USA shall be required in connection with any assignment to an Eligible
Transferee pursuant to clause (y) of this Section 15.04(b) (which consent, in
each case, shall not be unreasonably withheld or delayed), and (iv) the consent
of each Letter of Credit Issuer shall be required in connection with any
assignment of Revolving Loan Commitments pursuant to clause (y) above in this
Section 15.04(b) (which consent shall not be unreasonably withheld or delayed)
and, provided further, that such transfer or assignment will not be effective
----------------
until recorded by the Administrative Agent on the Register pursuant to Section
15.17. To the extent of any assignment pursuant to this Section 15.04(b), the
assigning Lender shall be relieved of its obligations hereunder with respect to
its assigned Commitments and/or outstanding Loans. In the case of Loans to the
US Borrowers, at the time of each assignment of such Loan pursuant to this
Section 15.04(b) to a Person which is not already a Lender hereunder and which
is not a United States person (as such term is defined in Section 7701(a)(30) of
the Code) for U.S. Federal income tax purposes, the respective assignee Lender
shall provide to the US Borrowers and the Administrative Agent the appropriate
Internal Revenue Service Forms (and, if applicable a Section 4.04(b)(ii)
Certificate) described in Section 4.04(b)(I). In the case of Loans to the Dutch
Borrower, at the time of each assignment of such Loan pursuant to this Section
15.04(b) to a Person which is not already a Lender hereunder, which is not a
resident of The Netherlands for Dutch tax purposes, the respective assignee
Lender shall, to the extent legally entitled to do so, provide to the Dutch
Borrower the appropriate certificate or document described in Section
4.04(b)(II) or 4.04(d). To the extent that an assignment of all or any portion
of a Lender's Commitments and outstanding Obligations pursuant to Section 1.13
or this Section 15.04(b) would, due to circumstances existing at the time of
such assignment, result in increased costs
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under Section 1.10, 1.11, 2.05 or 4.04 from those being charged by the
respective assigning Lender prior to such assignment, then the Borrowers shall
not be obligated to pay such increased costs (although the Borrowers shall be
obligated to pay any other increased costs of the type described above resulting
from changes after the date of the respective assignment). Notwithstanding
anything to the contrary contained above, at any time after the termination of
the Total Revolving Loan Commitment, if any Revolving Loans or Letters of Credit
remain outstanding, assignments may be made as provided above, except that the
respective assignment shall be of a portion of the outstanding Revolving Loans
of the respective RL Lender and its participation in Letters of Credit and its
obligation to make Mandatory Borrowings, although any such assignment effected
after the termination of the Total Revolving Loan Commitment shall not release
the assigning RL Lender from its obligations as a Participant with respect to
outstanding Letters of Credit or to fund its share of any Mandatory Borrowing
(although the respective assignee may agree, as between itself and the
respective assigning RL Lender, that it shall be responsible for such amounts).
(c) Nothing in this Agreement shall prevent or prohibit any Lender or
the Swingline Lender from pledging its Loans and Notes hereunder to a Federal
Reserve Bank in support of borrowings made by such Lender from such Federal
Reserve Bank and, with the consent of the Administrative Agent, any Lender which
is a fund may pledge all or any portion of its Notes or Loans to its trustee in
support of its obligations to its trustee. No pledge pursuant to this clause (c)
shall release the transferor Lender from any of its obligations hereunder.
15.05 No Waiver; Remedies Cumulative. No failure or delay on the part
------------------------------
of any Agent, the Collateral Agent or any Lender in exercising any right, power
or privilege hereunder or under any other Credit Document and no course of
dealing between any Credit Party and any Agent, the Collateral Agent or any
Lender shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or under any other Credit
Document preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder or thereunder. The rights and remedies
herein expressly provided are cumulative and not exclusive of any rights or
remedies which any Agent, the Collateral Agent or any Lender would otherwise
have. No notice to or demand on any Credit Party in any case shall entitle any
Credit Party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Agents, the Collateral
Agent or the Lenders to any other or further action in any circumstances without
notice or demand.
15.06 Payments Pro Rata. (a) The Administrative Agent agrees that
-----------------
promptly after its receipt of each payment from or on behalf of any Credit Party
in respect of any Obligations of such Credit Party, it shall, except as
otherwise provided in this Agreement, distribute such payment to the Lenders
(other than any Lender that has consented in writing to waive its pro rata share
--- ----
of such payment) pro rata based upon their respective shares, if any, of the
--- ----
Obligations with respect to which such payment was received.
(b) Each of the Lenders agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or
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interest on, the Loans, Unpaid Drawings or Fees, of a sum which with respect to
the related sum or sums received by other Lenders is in a greater proportion
than the total of such Obligation then owed and due to such Lender bears to the
total of such Obligation then owed and due to all of the Lenders immediately
prior to such receipt, then such Lender receiving such excess payment shall
purchase for cash without recourse or warranty from the other Lenders an
interest in the Obligations of the respective Credit Party to such Lenders in
such amount as shall result in a proportional participation by all of the
Lenders in such amount; provided that, if all or any portion of such excess
--------
amount is thereafter recovered from such Lender, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest.
15.07 Calculations; Computations. (a) The financial statements to
--------------------------
be furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by RPP USA to the Lenders); provided that, except as otherwise specifically
--------
provided herein, all computations determining the Adjusted Total Leverage Ratio,
the Total Leverage Ratio and the Adjusted Senior Leverage Ratio and compliance
with Sections 4.02, 8.14 and 9, including definitions used therein shall, in
each case, utilize accounting principles and policies in effect at the time of
the preparation of, and in conformity with those used to prepare, the December
31, 1999 financial statements delivered to the Lenders pursuant to Section
7.10(b); and provided further, that (i) to the extent expressly required
----------------
pursuant to the provisions of this Agreement, certain calculations shall be made
on a Pro Forma Basis, (ii) to the extent compliance with any of Section 9.09 or
--- -----
9.10 or the determination of any of the Adjusted Total Leverage Ratio, the Total
Leverage Ratio and the Adjusted Senior Leverage Ratio would include periods
occurring prior to the Initial Borrowing Date, such calculation shall be
adjusted on a Pro Forma Basis to give effect to the Transaction as if same had
--- -----
occurred on the first day of the respective period, (iii) in the case of any
determinations of Consolidated Interest Expense or Consolidated EBITDA for any
portion of any Test Period which ends prior to the Initial Borrowing Date, all
computations determining compliance with Sections 9.09 or 9.10 and all
determinations of the Adjusted Total Leverage Ratio, the Adjusted Senior
Leverage Ratio and the Total Leverage Ratio (including as used in the definition
of Applicable Commitment Fee Percentage and Applicable Margin) shall be
calculated in accordance with the definition of Test Period contained herein and
(iv) for purposes of calculating the Applicable Commitment Fee Percentage and
the Applicable Margin, financial ratios, financial terms, all covenants and
related definitions, all such calculations based on the operations of RPP USA
and its Subsidiaries on a consolidated basis shall be made without giving effect
to the operations of any Unrestricted Subsidiaries.
(b) All computations of interest and Fees hereunder shall be made on
the actual number of days elapsed over a year of 360 days.
(c) Notwithstanding anything to the contrary contained in clause (a)
of this Section 15.07, (i) for purposes of determining compliance with any
incurrence tests set forth in Sections 8 and/or 9 (excluding Sections 9.09 and
9.10), any amounts so incurred or expended (to the extent incurred or expended
in a currency other than Dollars) shall be converted into Dollars on the basis
of the Dollar Equivalent of the respective such amounts as in effect on the date
of such incurrence or expenditure under any provision of any such Section that
has an aggregate
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Dollar limitation provided for therein (and to the extent the respective
incurrence test limits the aggregate amount outstanding (or expended) at any
time and is expressed in Dollars, all outstanding amounts originally incurred or
expended in a currency other than Dollars shall be converted into Dollars on the
basis of the Dollar Equivalent of the respective such amounts as in effect on
the date any new incurrence or expenditures made under any provision of any such
Section that regulates the Dollar amount outstanding (or expended) at any time).
(d) Except as provided in Section 15.07(e), for purposes of
determining compliance with (i) Sections 1.01(c) (other than clause (viii)
thereof), 1.01(d) (other than clause (viii) thereof), 2.01(c), 3.01(a) and
4.02(a) (other than clause (ii) thereof), the Dollar Equivalent of each Euro
Loan and each Letter of Credit denominated in Euros shall be calculated on the
date when any such Euro Loan is made or such Letter of Credit is issued, on the
second Business Day of each month and at such other times as may be designated
by the Administrative Agent and (ii) with Sections 1.01(c)(viii) and
1.01(d)(viii), the Euro Equivalent of each Dollar Revolving Loan and Dollar
Swingline Loan incurred by the Dutch Borrower shall be calculated on the date
when any such Dollar Revolving Loan or Dollar Swingline Loan is made, on the
second Business Day of each month and at such other times as may be designated
by the Administrative Agent. Such Dollar Equivalent or Euro Equivalent, as the
case may be, shall remain in effect until the same is recalculated by the
Administrative Agent as provided above and notice of such recalculation is
received by RPP USA, it being understood that until such notice is received, the
Dollar Equivalent or Euro Equivalent, as the case may be, shall be that Dollar
Equivalent or Euro Equivalent, as the case may be, as last reported to RPP USA
by the Administrative Agent. The Administrative Agent shall promptly notify RPP
USA and the Lenders of each such determination of the Dollar Equivalent or Euro
Equivalent, as the case may be.
(e) For the purpose of determining the US Borrowers' obligation to
reimburse in Dollars a Drawing under a Letter of Credit denominated in Euros
(and each Participant's obligation to fund its participation with respect to any
such Letter of Credit), such determination shall be made by the Administrative
Agent by converting the amount of the Unpaid Drawing into Dollars based on the
Dollar Equivalent thereof on the day on which the Drawing is honored by the
respective Letter of Credit Issuer. For the purposes of determining the US
Borrowers' obligation to pay Letter of Credit Fees and Facing Fees with respect
to Letters of Credit denominated in Euros, such determination shall be made by
using the Dollar Equivalent in effect from time to time during the term of any
such Letter of Credit as determined by the provisions of Section 15.07(d).
(f) For the purpose of determining compliance with Sections 9.04(d),
(g) and (o), any interest on any Indebtedness theretofore incurred pursuant to
such Sections which is capitalized and/or paid in the form of additional
Indebtedness with the same terms shall not be treated as an incurrence of
additional Indebtedness for purposes of determining compliance with the dollar
limitations set forth therein.
15.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE. (a) THIS
------------------------------------------------
AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS EXPRESSLY PROVIDED OTHERWISE
IN CERTAIN OF THE OTHER CREDIT
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DOCUMENTS, BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE
STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW
YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE
WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF
THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT, EACH OF HOLDINGS AND EACH BORROWER
HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH OF HOLDINGS
AND EACH BORROWER HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS NATIONAL
REGISTERED AGENTS, INC., WITH OFFICES ON THE DATE HEREOF AT 440 NINTH AVENUE,
NEW YORK, NEW YORK 10001 AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT
AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF THE PROPERTY OF
HOLDINGS AND ITS SUBSIDIARIES, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS,
NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF
FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO
ACT AS SUCH, EACH OF HOLDINGS AND EACH BORROWER AGREES TO DESIGNATE A NEW
DESIGNEE, APPOINTEE AND AGENT IN NEW YORK COUNTY ON THE TERMS AND FOR THE
PURPOSES OF THIS PROVISION SATISFACTORY TO THE ADMINISTRATIVE AGENT UNDER THIS
AGREEMENT. EACH OF HOLDINGS AND EACH BORROWER HEREBY FURTHER IRREVOCABLY WAIVES
ANY CLAIM THAT ANY SUCH COURTS LACK JURISDICTION OVER EACH OF HOLDINGS AND EACH
BORROWER, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN ANY OF
THE AFORESAID COURTS, THAT ANY SUCH COURT LACKS JURISDICTION OVER SUCH CREDIT
PARTY. EACH OF HOLDINGS AND EACH BORROWER FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO EACH OF HOLDINGS
AND EACH BORROWER, AT ITS ADDRESS FOR NOTICES PURSUANT TO SECTION 15.03, SUCH
SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH OF HOLDINGS AND
EACH BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS
AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR
PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SERVICE
OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT
THE RIGHT OF ANY AGENT, THE COLLATERAL AGENT, ANY LENDER OR THE HOLDER OF ANY
NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY CREDIT PARTY IN ANY OTHER
JURISDICTION.
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(b) EACH OF HOLDINGS AND EACH BORROWER HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF
THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN
CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD
OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
15.09 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts executed by all the parties hereto shall be lodged with the
Borrowers and the Administrative Agent.
15.10 Effectiveness. This Agreement shall become effective on the
-------------
date (the "Effective Date") on which Holdings, each Borrower, each Agent and
each Lender shall have signed a counterpart hereof (whether the same or
different counterparts) and shall have delivered the same (including by way of
facsimile transmission) to the Administrative Agent at the Notice Office or at
the office of the Agents' counsel. The Administrative Agent will give Holdings,
each Borrower and each Lender prompt written notice of the occurrence of the
Effective Date.
15.11 Headings Descriptive. The headings of the several sections and
--------------------
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
15.12 Amendment or Waiver; etc. (a) Neither this Agreement nor any
-------------------------
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party thereto and the
Required Lenders, provided that no such change, waiver, discharge or termination
--------
shall, without the consent of each Lender (other than a Defaulting Lender) (with
Obligations being directly affected thereby in the case of the following clause
(i)), (i) extend the final scheduled maturity of any Loan or Note or extend the
stated maturity of any Letter of Credit beyond the Revolving Loan Maturity Date,
or reduce the rate or extend the time of payment of interest or Fees thereon, or
reduce the principal amount thereof (it being understood that any amendment or
modification to the financial definitions in this Agreement or to Section
15.07(a) shall not constitute a reduction in any rate of interest or fees for
purposes of this clause (i)), (ii) release all or substantially all of the
Collateral (except as expressly provided in the Security Documents) under all
the Security Documents, (iii) amend, modify or waive any provision of this
Section 15.12 (except for technical amendments with respect to additional
extensions of credit pursuant to this Agreement which afford the protections to
such additional extensions of credit of the type provided to the Term Loans and
the Revolving Loan Commitments on the Effective Date), (iv) reduce the
percentage specified in the definition of Required Lenders (it being understood
that, with the consent of the Required Lenders, additional extensions of credit
pursuant to this Agreement may be included in the determination of the Required
Lenders on
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substantially the same basis as the extensions of Term Loans and Revolving Loan
Commitments are included on the Effective Date) or (v) consent to the assignment
or transfer by any Borrower of any of their respective rights and obligations
under this Agreement or any other Credit Document; provided further, that no
----------------
such change, waiver, discharge or termination shall (1) increase the Commitments
of any Lender over the amount thereof then in effect without the consent of such
Lender (it being understood that waivers or modifications of conditions
precedent, covenants, Defaults or Events of Default or of a mandatory reduction
in the Total Commitment shall not constitute an increase of the Commitment of
any Lender, and that an increase in the available portion of any Commitment of
any Lender shall not constitute an increase in the Commitment of such Lender),
(2) without the consent of each Letter of Credit Issuer, amend, modify or waive
any provision of Section 2 or alter its rights or obligations with respect to
Letters of Credit, (3) without the consent of the Swingline Lender, alter its
rights or obligations with respect to Swingline Loans, (4) without the consent
of the Agents, amend, modify or waive any provision of Section 12 as same
applies to the Agents or any other provision as same relates to the rights or
obligations of the Agents, (5) without the consent of the Collateral Agent,
amend, modify or waive any provision relating to the rights or obligations of
the Collateral Agent, (6) except in cases where additional extensions of term
loans and/or revolving loans are being afforded substantially the same treatment
afforded to the Term Loans and Revolving Loans pursuant to this Agreement as
originally in effect, without the consent of the Majority Lenders of each
Tranche which is being allocated a lesser prepayment, repayment or commitment
reduction as a result of the actions described below (or without the consent of
the Majority Lenders of each Tranche in the case of an amendment to the
definition of Majority Lenders), amend the definition of Majority Lenders or
alter the required application of any prepayments or repayments (or commitment
reduction), as between the various Tranches, pursuant to Section 4.01 or 4.02
(excluding Section 4.02(b) or (c)) (although the Required Lenders may waive, in
whole or in part, any such prepayment, repayment or commitment reduction, so
long as the application, as amongst the various Tranches, of any such
prepayment, repayment or commitment reduction which is still required to be made
is not altered), or (7) reduce the amount of, or extend the date of, any
Scheduled A Euro Repayment without the consent of Supermajority Lenders holding
A Euro Term Loans, or reduce the amount, or extend the date of, any B Scheduled
Repayment without the consent of the Supermajority Lenders holding B Term Loans,
or amend the definition of Supermajority Lenders without the consent of the
Supermajority Lenders holding each of the A Euro Term Loans and B Term Loans (it
being understood that, with the consent of the Required Lenders, additional
extensions of credit pursuant to this Agreement may be included in the
determination of the Supermajority Lenders on substantially the same basis as
the extensions of Term Loans and Revolving Loan Commitments are included on the
Effective Date).
(b) If, in connection with any proposed change, waiver, discharge or
termination of or to any of the provisions of this Agreement as contemplated by
clauses (i) through (v), inclusive, of the first proviso to Section 15.12(a),
the consent of the Required Lenders is obtained but the consent of one or more
of such other Lenders whose consent is required is not obtained, then the
Borrowers shall have the right, so long as all non-consenting Lenders whose
individual consent is required are treated as described in either clause (A) or
(B) below, to either (A) replace each such non-consenting Lender or Lenders (or,
at the option of the Borrowers if the respective Lender's consent is required
with respect to less than all Tranches of Loans (or related Commit-
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ments), to replace only the Commitments and/or Loans of the respective non-
consenting Lender which gave rise to the need to obtain such Lender's individual
consent) with one or more Replacement Lenders pursuant to Section 1.13 so long
as at the time of such replacement, each such Replacement Lender consents to the
proposed change, waiver, discharge or termination or (B) terminate such non-
consenting Lender's Commitment (if such Lender's consent is required as a result
of its Commitment) and/or repay each Tranche of outstanding Loans of such Lender
which gave rise to the need to obtain such Lender's consent and/or cash
collateralize its applicable RL Percentage of the Letter of Credit of
Outstandings, in accordance with Sections 3.02(b) and/or 4.01(vii), provided
--------
that, unless the Commitments which are terminated and Loans which are repaid
pursuant to preceding clause (B) are immediately replaced in full at such time
through the addition of new Lenders or the increase of the Commitments and/or
outstanding Loans of existing Lenders (who in each case must specifically
consent thereto), then in the case of any action pursuant to preceding clause
(B), the Required Lenders (determined after giving effect to the proposed
action) shall specifically consent thereto, provided further, that the Borrowers
----------------
shall not have the right to replace a Lender, terminate its Commitment or repay
its Loans solely as a result of the exercise of such Lender's rights (and the
withholding of any required consent by such Lender) pursuant to the second
proviso to Section 15.12(a).
15.13 Survival. All indemnities set forth herein including, without
--------
limitation, in Sections 1.10, 1.11, 2.05, 4.04, 12.07 and 15.01, shall, subject
to the provisions of Section 15.18 (to the extent applicable), survive the
execution and delivery of this Agreement and the making and repayment of the
Loans.
15.14 Domicile of Loans and Commitments. Each Lender may transfer
---------------------------------
and carry its Loans and/or Commitments at, to or for the account of any branch
office, subsidiary or affiliate of such Lender; provided that no Borrower shall
--------
be responsible for increased costs arising under Section 1.10, 1.11, 2.05 or
4.04 resulting from any such transfer (other than a transfer pursuant to Section
1.12) to the extent such increased costs would not otherwise be applicable to
such Lender in the absence of such transfer (although the Borrowers shall be
obligated to pay any other increased costs of the type described above resulting
from changes after the date of the respective transfer).
15.15 Confidentiality. (a) Each of the Lenders agree that it will
---------------
use its reasonable efforts not to disclose without the prior consent of Holdings
(other than to its directors, trustees, employees, officers, auditors, counsel
or other professional advisors, to affiliates or to another Lender if the Lender
or such Lender's holding or parent company in its sole discretion determines
that any such party should have access to such information, provided that such
--------
persons shall be subject to the provisions of this Section 15.15 to the same
extent as such Lender) any information with respect to Holdings or any of its
Subsidiaries which is furnished by Holdings or any of its Subsidiaries pursuant
to this Agreement; provided that any Lender may disclose any such information
--------
(a) which is publicly known at the time of the disclosure or which has become
generally available to the public, (b) as may be required or appropriate (x) in
any report, statement or testimony submitted to any municipal, state or Federal
regulatory body having or claiming to have jurisdiction over such Lender or to
the Federal Reserve Board or the Federal Deposit Insurance Corporation or
similar organizations (whether in the United States or elsewhere) or their
successors or (y) in connection with any request or requirement of any such
-174-
regulatory body (including any securities exchange or self-regulatory
organization), (c) as may be required or appropriate in response to any summons
or subpoena or in connection with any litigation or other legal process, (d) to
comply with any law, order, regulation or ruling applicable to such Lender, and
(e) to any prospective transferee in connection with any contemplated transfer
of any of the Notes or any interest therein by such Lender; provided, that such
--------
prospective transferee agrees to be bound by this Section 15.15 to the same
extent as such Lender.
(b) Each of Holdings and each Borrower hereby acknowledges and
agrees that each Lender may share with any of its affiliates any information
related to Holdings or any of its Subsidiaries (including, without limitation,
any nonpublic customer information regarding the creditworthiness of Holdings
and its Subsidiaries), provided that such Persons shall be subject to the
--------
provisions of this Section 15.15 to the same extent as such Lender.
15.16 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT
--------------------
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
15.17 Register. Each Borrower hereby designates the Administrative
--------
Agent to serve as such Borrower's agent, solely for purposes of this Section
15.17, to maintain a register (the "Register") on which it will record the
Commitments from time to time of each of the Lenders, the Loans made by each of
the Lenders and each repayment in respect of the principal amount of the Loans
of each Lender. Failure to make any such recordation, or any error in such
recordation shall not affect any Borrower's obligations in respect of such
Loans. With respect to any Lender, the transfer of any Commitment of such
Lender and the rights to the principal of, and interest on, any Loan shall not
be effective until such transfer is recorded on the Register maintained by the
Administrative Agent with respect to ownership of such Commitment and Loans and
prior to such recordation all amounts owing to the transferor with respect to
such Commitment and Loans shall remain owing to the transferor. The
registration of assignment or transfer of all or part of any Commitment and
Loans shall be recorded by the Administrative Agent on the Register only upon
the acceptance by the Administrative Agent of a properly executed and delivered
Assignment and Assumption Agreement pursuant to Section 15.04(b). Coincident
with the delivery of such an Assignment and Assumption Agreement to the
Administrative Agent for acceptance and registration of assignment or transfer
of all or part of a Commitment and/or Loan, or as soon thereafter as
practicable, the assigning or transferor Lender shall surrender the Note
evidencing such Commitment and/or Loan, and thereupon one or more new Notes in
the same aggregate principal amount shall be issued to the assigning or
transferor Lender and/or the new Lender. Each Borrower agrees to indemnify the
Administrative Agent from and against any and all losses, claims, damages and
liabilities of whatsoever nature which may be imposed on, asserted against or
incurred by the Administrative Agent in performing its duties under this Section
15.17.
15.18 Limitation on Additional Amounts, etc. Notwithstanding
--------------------------------------
anything to the contrary contained in Section 1.10, 1.11, 2.05 or 4.04, unless a
Lender gives notice to the US
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Borrowers or the Dutch Borrower, as the case may be, that it is obligated to pay
an amount under such Section within six months after the later of (x) the date
the Lender incurs the respective increased costs, Taxes, loss, expense or
liability, reduction in amounts received or receivable or reduction in return on
capital or (y) the date such Lender has actual knowledge of its incurrence of
the respective increased costs, Taxes, loss, expense or liability, reductions in
amounts received or receivable or reduction in return on capital, then such
Lender shall only be entitled to be compensated for such amount by the US
Borrowers or the Dutch Borrower, as the case may be, pursuant to said Section
1.10, 1.11, 2.05 or 4.04, as the case may be, to the extent of the costs, Taxes,
loss, expense or liability, reduction in amounts received or receivable or
reduction in return on capital that are incurred or suffered on or after the
date which occurs six months prior to such Lender giving notice to the US
Borrowers or the Dutch Borrower, as the case may be, that it is obligated to pay
the respective amounts pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the
case may be. This Section 15.18 shall have no applicability to any Section of
this Agreement other than said Sections 1.10, 1.11, 2.05 and 4.04.
15.19 Judgment Currency. (a) Each Borrower's obligation hereunder
-----------------
and under the other Credit Documents to make payments in Dollars or, (x) in the
case of a Letter of Credit issued in Euros, the Dollar Equivalent thereof or (y)
in the case of a Euro Loan, Euros (in any such case, the "Obligation Currency")
shall not be discharged or satisfied by any tender or recovery pursuant to any
judgment expressed in or converted into any currency other than the Obligation
Currency, except to the extent that such tender or recovery results in the
effective receipt by the Administrative Agent, the Collateral Agent, the
respective Letter of Credit Issuer or the respective Lender of the full amount
of the Obligation Currency expressed to be payable to the Administrative Agent,
the Collateral Agent, such Letter of Credit Issuer or such Lender under this
Agreement or the other Credit Documents. If for the purpose of obtaining or
enforcing judgment against any Borrower in any court or in any jurisdiction, it
becomes necessary to convert into or from any currency other than the Obligation
Currency (such other currency being hereinafter referred to as the "Judgment
Currency") an amount due in the Obligation Currency, the conversion shall be
made, at the Relevant Currency Equivalent thereof or, in the case of conversions
into other currencies, at the rate of exchange quoted by the Administrative
Agent, determined, in each case, as of the date immediately preceding the day on
which the judgment is given (such Business Day being hereinafter referred to as
the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing between
the Judgment Currency Conversion Date and the date of actual payment of the
amount due, the US Borrowers jointly and severally covenant and agree, and the
Dutch Borrower covenants and agrees, to pay, or cause to be paid, such
additional amounts, if any (but in any event not a lesser amount) as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate of exchange prevailing on the Judgment Currency Conversion
Date.
(c) For purposes of determining the Relevant Currency Equivalent or
any other rate of exchange for this Section 15.19, such amounts shall include
any premium and costs payable in connection with the purchase of the Obligation
Currency.
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15.20 Immunity. To the extent that the Dutch Borrower has or
--------
hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, or otherwise) with respect to itself or its
property, the Dutch Borrower hereby irrevocably waives such immunity in respect
of its obligations hereunder and under the other Credit Documents to which it is
a party to the extent permitted by applicable law and, without limiting the
generality of the foregoing, agrees that the waivers set forth in this Section
15.20 shall be to the fullest extent permitted under the Foreign Sovereign
Immunities Act of 1976 of the United States and are intended to be irrevocable
for purposes of such Act.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address RESOLUTION PERFORMANCE PRODUCTS INC.
- -------
1600 Smith Street
24/th/ Floor
Houston, Texas 77002 By /s/ David T. Preston
------------------------------
Attention: President Name: David T. Preston
Telephone: (888) 949-2502 Title: President
Telecopy: (713) 241-5333
1600 Smith Street RESOLUTION PERFORMANCE PRODUCTS LLC
24/th/ Floor
Houston, Texas 77002 By /s/ David T. Preston
------------------------------
Attention: President Name: David T. Preston
Telephone: (888) 949-2502 Title: President
Telecopy: (713) 241-5333
1600 Smith Street RPP CAPITAL CORPORATION
24/th/ Floor
Houston, Texas 77002 By /s/ David T. Preston
------------------------------
Attention: President Name: David T. Preston
Telephone: (888) 949-2502 Title: President
Telecopy: (713) 241-5333
601 Vondelingenweg RESOLUTION NEDERLAND B.V.
3196 KK Vondelingenplaat
Rotterdam
The Netherlands By /s/ David T. Preston
------------------------------
Attention: Wouter Willem Jongepier Name: David T. Preston
Telephone: 3110 431 4621 Title: President
Telecopy: 3110 431 4649
MORGAN STANLEY SENIOR FUNDING, INC.,
Individually, as Administrative Agent
and as Lead Arranger
By /s/ R. Bram Smith
------------------------------
Name: R. Bram Smith
Title: Managing Directors
MORGAN STANLEY & CO. INCORPORATED,
as Collateral Agent
By /s/ R. Bram Smith
------------------------------
Name: R. Bram Smith
Title: Managing Directors
SALOMON SMITH BARNEY INC., as
Syndication Agent
By /s/ Aaron Dannenberg
------------------------------
Name: Aaron Dannenberg
Title: Vice President Attorney-In-Fact
CITICORP USA, INC.
By /s/ Aaron Dannenberg
------------------------------
Name: Aaron Dannenberg
Title: Vice President Attorney-In-Fact
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, Individually and as
Documentation Agent
By /s/ Deborah DeSantis
------------------------------
Name: Deborah DeSantis
Title: Vice President
SCHEDULE I
----------
LIST OF LENDERS AND COMMITMENTS
-------------------------------
A Euro Term Revolving
Lender Loan B Term Loan Loan
- ------
Commitment Commitment Commitment
---------- ---------- ----------
Morgan Stanley Senior Funding,
Inc. (Euro) 69,820,212.96 $ 210,000,000 $ 90,000,000
Citicorp USA, Inc. (Euro) 23,273,404.32 $ 70,000,000 $ 30,000,000
Morgan Guaranty Trust Company of (Euro) 23,273,404.32 $ 70,000,000 $ 30,000,000
New York
--------------------- ------------- -------------
Total: (Euro) 116,367,021.60 $ 350,000,000 $ 150,000,000
SCHEDULE II
-----------
LENDER ADDRESSES
----------------
Lender Address
- ------ -------
Morgan Stanley Senior Funding, Inc. 1221 Avenue of the Americas
New York, NY 10020
Attn: Henry F. D'Alessandro
Telephone: (212) 761-1051
Fax: (212) 761-0322
Citicorp USA, Inc. 388 Greenwich Street
New York, NY 10013
Attn: Aaron Dannenberg
Telephone: (212) 723-6776
Fax: (212) 723-8691
Morgan Guaranty Trust Company of New York 60 Wall Street
New York, NY 10260-0060
Attn: Jose Briones
Telephone: (212) 648-0326
Fax: (212) 648-5348
SCHEDULE III
------------
EXISTING INDEBTEDNESS
---------------------
SCHEDULE IV
-----------
REAL PROPERTIES
---------------
SCHEDULE V
----------
PLANS
-----
SCHEDULE VI
-----------
CAPITALIZATION
--------------
SCHEDULE VII
------------
SUBSIDIARIES
------------
SCHEDULE VIII
-------------
INSURANCE
---------
SCHEDULE IX
-----------
EXISTING LIENS
--------------
Filing File Original
Location Debtor Secured Party Number File Date
- -------- ----- ------------- ------ ---------
SCHEDULE X
----------
EXISTING INVESTMENTS
--------------------
SCHEDULE XI
-----------
ASSOCIATED COSTS RATE
---------------------
1. On the first day of each Interest Period (or as soon as possible
thereafter) the Administrative Agent shall determine:
(a) for each Lender the percentage rate per annum for such Interest Period
which is the applicable Additional Costs Rate (as defined in paragraph
2 or 3 below); and
(b) the "Associated Costs Rate" for such period, which shall be the rate
per annum which is the weighted average of the Lenders' Additional
Costs Rates (weighted in proportion to the percentage participation of
each Lender in the Loans to which such Interest Period relates).
2. The Additional Costs Rate for a Lender making Loans from a lending office
located in the Euro-Zone shall be the percentage notified by such Lender to
the Administrative Agent as the cost to such Lender of complying with the
minimum reserve requirements of the European Central Bank.
3. The Additional Costs Rate for a Lender making Loans from a lending office
located in the United Kingdom shall be calculated as follows:
E x 0.01 percent per annum;
--------
300
where:
[E] is the rate of charge payable by that Lender to the Financial Services
Authority pursuant to the Fees Regulations (but, for this purpose, ignoring
any minimum fee required pursuant to the Fees Regulations) and expressed in
pounds per (Pounds)1,000,000 of the Fee Base of that Lender.
4. For the purposes of this Schedule:
(a) "Fees Regulations" means the Banking Supervision (Fees) Regulations
1999 or such other law or regulation as may be in force from time to
time in respect of the payment of fees for banking supervision in the
United Kingdom; and
(b) "Fee Base" has the meaning given to it, and will be calculated in
accordance with, the Fees Regulations.
5. Each Lender shall supply any information required by the Administrative
Agent for the purposes of calculating the Additional Costs Rate, including
the following information which such Lender shall provide to the
Administrative Agent on or before the date on which it becomes a Lender:
(a) its jurisdiction of incorporation and the jurisdiction of lending
office for the Loans made, and Letters of Credit participated in, by
such Lender; and
SCHEDULE XI
Page 2
(b) any other information that the Administrative Agent may reasonably
require for such purpose;
and shall promptly notify the Administrative Agent in writing of any change
to the information provided by it pursuant to this paragraph.
6. The percentages or rates of charge of each Lender for the purpose of E
above shall be determined by the Administrative Agent based upon the
information supplied to it pursuant to paragraph 5 above.
7. The Administrative Agent shall have no liability to any Person if any
determination by it of an Additional Costs Rate and/or an Associated Costs
Rate overcompensates or under compensates a Lender and shall be entitled to
assume that the information provided by any Lender pursuant to paragraphs 2
and 5 above is true and correct in all respects.
8. The Administrative Agent shall distribute amounts received by it in respect
of an Interest Period and attributable to the Associated Costs Rate to the
Lenders on the basis of the Additional Costs Rate for each such Interest
Period determined by the Administrative Agent pursuant to the provisions of
this Schedule.
9. Any determination by the Administrative Agent pursuant to this Schedule in
relation to a formula, an Additional Cost Rate or an Associated Costs Rate
or any amount payable to a Lender shall, in the absence of manifest error,
be conclusive and binding on each Borrower and the Lenders.
10. The Administrative Agent may from time to time, after consultation with the
Borrowers, the other Agents and the Lenders specify any amendments which
are required to be made to this Schedule in order to comply with any change
in law, regulation or any requirements from time to time imposed by the
Bank of England, the Financial Services Authority or the European Central
Bank (or, in any case, any other authority which replaces all or any of its
functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on the Borrowers, the Agents and the
Lenders.
EXHIBIT A
---------
NOTICE OF BORROWING
-------------------
[Date]
Morgan Stanley Senior Funding, Inc.,
as Administrative Agent (the
"Administrative Agent") for the
Lenders party to the Credit Agreement
referred to below
[Specify Notice Office]/1/
Attention:
with a copy to:
Ladies and Gentlemen:
The undersigned, [Resolution Performance Products LLC and RPP Capital
Corporation] [Resolution Nederland B.V.] refer[s] to the Credit Agreement, dated
as of November 14, 2000 (as amended, restated, modified and/or supplemented from
time to time, the "Credit Agreement", the terms defined therein being used
herein as therein defined), among Resolution Performance Products Inc.,
Resolution Performance Products LLC, RPP Capital Corporation, Resolution
Nederland B.V., certain lending institutions from time to time party thereto
(the "Lenders"), Salomon Smith Barney Inc., as Syndication Agent, Morgan
Guaranty Trust Company of New York, as Documentation Agent, and you, as
Administrative Agent for such Lenders, and hereby give[s] you notice,
irrevocably, pursuant to Section 1.03(a) of the Credit Agreement, that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
"Proposed Borrowing") as required by Section 1.03(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is __________, ____./2/
(ii) The aggregate principal amount of the Proposed Borrowing is
__________./3/
(iii) The Loans to be made pursuant to the Proposed Borrowing shall
be made to the [US Borrowers] [Dutch Borrower] and shall consist of [A Euro
Term Loans] [B Term
____________________
/1/ Refer to definition of Notice Office in the Credit Agreement for the proper
specifications.
/2/ Shall be a Business Day, in the case of (x) the US Borrowers, at least one
Business Day in the case of Base Rate Loans (or same day in the case of
Swingline Loans) and at least three Business Days in the case of Eurodollar
Loans or Euro Revolving Loans (as the case may be), in each case, after the
date hereof, and (y) the Dutch Borrower, at least three Business Days in
the case of Euro Rate Loans and one Business Day in the case of Base Rate
Loans (or same day in the case of Swingline Loans), in each case, after the
date hereof; provided that (in each case) any such notice shall be deemed
--------
to have been given on a certain day only if given before 12:00 Noon (Local
time).
/3/ Shall be stated in the Approved Currency of the US Borrowers or the Dutch
Borrower, as the case may be.
Page 2
Loans] [Dollar Revolving Loans] [Euro Revolving Loans] [Dollar Swingline
Loans][Euro Swingline Loans)]./4/
[(iv) The Dollar Loans to be made pursuant to the Proposed
Borrowing shall be initially maintained as [Base Rate Loans] [Eurodollar
Loans]].
[(v) The initial Interest Period for the Proposed Borrowing is
__________ month(s).]/5/
[(vi) Attached hereto as Annex I is the officer's certificate
required to be delivered to the Administrative Agent pursuant to Section
8.14 of the Credit Agreement.]
[(vii) The aggregate principal amount of [Revolving Loans]
[Swingline Loans] incurred pursuant to the Proposed Borrowing and utilized
to finance, in whole or in part, the respective Permitted Acquisition is
[$][(Euro)]____.
[(viii) The Total Unutilized Revolving Loan Commitment, after giving
effect to Proposed Borrowing, is $ _________________.]/6/
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in the Credit
Agreement and in the other Credit Documents are and will be true and
correct in all material respects, before and after giving effect to the
Proposed Borrowing and to the application of the proceeds thereof, as
though made on such date, unless stated to relate to a specific earlier
date, in which case such representations and warranties shall be true and
correct in all material respects as of such earlier date; and
_____________________
/4/ B Term Loans are only available to the US Borrowers. A Euro Term Loans are
only available to the Dutch Borrower. Dollar Revolving Loans, Euro
Revolving Loans and Dollar Swingline Loans are available to the US
Borrowers. Dollar Revolving Loans, Euro Revolving Loans, Dollar Swingline
Loans and Euro Swingline Loans are available to the Dutch Borrower.
/5/ To be included for a Proposed Borrowing of Euro Rate Loans (other than Euro
Swingline Loans), provided that unless the Administrative Agent has
--------
otherwise determined in its sole discretion or has determined that the
Syndication Date has occurred, prior to the 90th day following the Initial
Borrowing Date, all Euro Rate Loans (other than Euro Swingline Loans) must
initially be subject to an Interest Period of one week which begins and
ends on the same day and thereafter, be subject to an Interest Period of
one month which begins and ends on the same day.
/6/ To be included for a Proposed Borrowing of Revolving Loans or Swingline
Loans, the proceeds of which will be utilized to finance, in whole or in
part, the purchase price of a Permitted Acquisition, provided that clause
--------
(vi) is to be included for a Proposed Borrowing only to the extent required
by Section 1.03(vii).
Page 3
(B) no Default or Event of Default has occurred and is continuing, or
would result from such Proposed Borrowing or from the application of the
proceeds thereof.
Very truly yours,
[RESOLUTION PERFORMANCE PRODUCTS LLC
RPP CAPITAL CORPORATION
By:_______________________________________
Name:
Title:]/7/
[RESOLUTION NEDERLAND B.V.
By:_______________________________________
Name:
Title:]/8/
_______________________
/7/ To be included for a Proposed Borrowing by the US Borrowers.
/8/ To be included for a Proposed Borrowing by the Dutch Borrower.
EXHIBIT B-1
-----------
A EURO TERM NOTE
----------------
(Euro) ____________________ New York, New York
_________ __, ____
FOR VALUE RECEIVED, RESOLUTION NEDERLAND B.V., a company organized
under the laws of The Netherlands (the "Dutch Borrower"), hereby promises to pay
to _____________ or its registered assigns (the "Lender"), in the lawful single
currency of participating member states of the Euro-zone (as defined in the
Credit Agreement referred to below) (except to the extent payments are otherwise
required to be made in United States dollars in accordance with the provisions
of Section 1.14 of the Credit Agreement) in immediately available funds, at the
applicable Payment Office (as defined in the Credit Agreement) on the A Euro
Term Loan Maturity Date (as defined in the Credit Agreement) the principal sum
of _____________ EUROS ((Euro)___________) or, if less, the unpaid principal
amount of all A Euro Term Loans (as defined in the Credit Agreement) made by the
Lender pursuant to the Credit Agreement.
The Dutch Borrower also promises to pay interest on the unpaid
principal amount hereof in like money at said office from the date hereof until
paid at the rates and at the times provided in Section 1.08 of the Credit
Agreement.
This Note is one of the A Euro Term Notes referred to in the Credit
Agreement, dated as of November 14, 2000, among Resolution Performance Products
Inc., Resolution Performance Products LLC, RPP Capital Corporation, the Dutch
Borrower, the lending institutions from time to time party thereto (including
the Lender), Salomon Smith Barney Inc., as Syndication Agent, Morgan Guaranty
Trust Company of New York, as Documentation Agent, and Morgan Stanley Senior
Funding, Inc., as Lead Arranger, sole Book Manager and Administrative Agent (as
amended, restated, modified and/or supplemented from time to time, the "Credit
Agreement") and is entitled to the benefits thereof and of the other Credit
Documents (as defined in the Credit Agreement). This Note is secured by the
Security Documents (as defined in the Credit Agreement) and is entitled to the
benefits of the Guaranties (as defined in the Credit Agreement). This Note is
subject to voluntary prepayment and mandatory repayment prior to the A Euro Term
Loan Maturity Date, in whole or in part, as provided in the Credit Agreement.
In case an Event of Default (as defined in the Credit Agreement) shall
occur and be continuing, the principal of and accrued interest on this Note may
be declared to be due and payable in the manner and with the effect provided in
the Credit Agreement.
The Dutch Borrower hereby waives presentment, demand, protest or
notice of any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK.
RESOLUTION NEDERLAND B.V.
By:_______________________________
Name:
Title:
EXHIBIT B-2
-----------
B TERM NOTE
-----------
$____________________ New York, New York
_________ __, ____
FOR VALUE RECEIVED, RESOLUTION PERFORMANCE PRODUCTS LLC, a Delaware
limited liability company ("RPP USA"), and RPP CAPITAL CORPORATION, a Delaware
corporation ("US Finance Corp." and, together with RPP USA, the "US Borrowers"),
hereby jointly and severally promise to pay to _____________________ or its
registered assigns (the "Lender"), in lawful money of the United States of
America in immediately available funds, at the applicable Payment Office (as
defined in the Credit Agreement referred to below) on the B Term Loan Maturity
Date (as defined in the Credit Agreement) the principal sum of
___________________ DOLLARS ($___________) or, if less, the unpaid principal
amount of all B Term Loans (as defined in the Credit Agreement) made by the
Lender pursuant to the Credit Agreement.
The US Borrowers also jointly and severally promise to pay interest on
the unpaid principal amount hereof in like money at said office from the date
hereof until paid at the rates and at the times provided in Section 1.08 of the
Credit Agreement.
This Note is one of the B Term Notes referred to in the Credit
Agreement, dated as of November 14, 2000, among Resolution Performance Products
Inc., the US Borrowers, Resolution Nederland B.V., the lending institutions from
time to time party thereto (including the Lender), Salomon Smith Barney Inc., as
Syndication Agent, Morgan Guaranty Trust Company of New York, as Documentation
Agent, and Morgan Stanley Senior Funding, Inc., as Lead Arranger, sole Book
Manager and Administrative Agent (as amended, restated, modified and/or
supplemented from time to time, the "Credit Agreement") and is entitled to the
benefits thereof and of the other Credit Documents (as defined and provided for
in the Credit Agreement). This Note is secured by certain of the Security
Documents (as defined in the Credit Agreement) and is entitled to the benefits
of each of the Holdings Guaranty and the US Subsidiaries Guaranty (each as
defined in the Credit Agreement). This Note is subject to voluntary prepayment
and mandatory repayment prior to the B Term Loan Maturity Date, in whole or in
part, as provided in the Credit Agreement.
In case an Event of Default (as defined in the Credit Agreement) shall
occur and be continuing, the principal of and accrued interest on this Note may
be declared to be due and payable in the manner and with the effect provided in
the Credit Agreement.
The US Borrowers hereby waive presentment, demand, protest or notice
of any kind in connection with this Note.
Page 2
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK.
RESOLUTION PERFORMANCE PRODUCTS
LLC
By:_____________________________________
Name:
Title:
RPP CAPTIAL CORPORATION
By:_____________________________________
Name:
Title:
EXHIBIT B-3
-----------
REVOLVING NOTE
--------------
$____________________ New York, New York
__________ __, ____
FOR VALUE RECEIVED, [RESOLUTION PERFORMANCE PRODUCTS LLC, a Delaware
limited liability company ("RPP USA") and RPP CAPITAL CORPORATION, a Delaware
corporation ("US Finance Corp." and, together with RPP USA, the "US Borrowers")]
[RESOLUTION NEDERLAND B.V., a company organized under the laws of The
Netherlands (the "Dutch Borrower")], hereby [jointly and severally]/1/
promise[s] to pay to __________ or its registered assigns (the "Lender"), in
lawful money of the respective Approved Currency (as defined in the Credit
Agreement referred to below) of the Revolving Loans (as defined in the Credit
Agreement) from time to time evidenced hereby in immediately available funds, at
the applicable Payment Office (as defined in the Credit Agreement referred to
below) on the Revolving Loan Maturity Date (as defined in the Credit Agreement)
the principal sum of ___________________ DOLLARS ($________________) or, if
less, the unpaid principal amount of all Revolving Loans (as defined in the
Credit Agreement) made by the Lender pursuant to the Credit Agreement, provided
--------
that, notwithstanding the fact that the principal amount of this Note is
denominated in Dollars, to the extent provided in the Credit Agreement, all
payments hereunder in respect of Euro Revolving Loans (as defined in the Credit
Agreement) evidenced hereby shall be made in Euros (although payments in respect
of Euro Revolving Loans shall be made in United States dollars (using the Dollar
Equivalent (as defined in the Credit Agreement) of such Euro Revolving Loans) to
the extent required pursuant to the provisions of Section 1.14 of the Credit
Agreement), whether or not the Dollar Equivalent thereof, when added to the
outstanding principal amount of all Dollar Revolving Loans (as defined in the
Credit Agreement) evidenced hereby, would exceed the stated principal amount of
this Note.
The [US Borrowers] [Dutch Borrower] also [jointly and severally]/2/
promise[s] to pay interest on the unpaid principal amount hereof in like money
at said office from the date hereof until paid at the rates and at the times
provided in Section 1.08 of the Credit Agreement.
This Note is one of the Revolving Notes referred to in the Credit
Agreement, dated as of November 14, 2000, among Resolution Performance Products
Inc., Resolution Performance Products LLC, RPP Capital Corporation, Resolution
Nederland, B.V., the lending institutions from time to time party thereto
(including the Lender), Salomon Smith Barney Inc., as Syndication Agent, Morgan
Guaranty Trust Company of New York, as Documentation Agent, and Morgan Stanley
Senior Funding, Inc., as Lead Arranger, sole Book Manager and Administrative
Agent (as amended, restated, modified and/or supplemented from time to time, the
"Credit Agreement") and is entitled to the benefits thereof and of the other
Credit Documents
__________________________
/1/ Include in Revolving Notes issued by the US Borrowers.
/2/ Include in Revolving Notes issued by the US Borrowers.
Page 2
(as defined in the Credit Agreement). This Note is secured by [certain of]/3/
the Security Documents (as defined in the Credit Agreement) and is entitled to
the benefits of [the Guaranties]/4/ [each of the Holdings Guaranty and the US
Subsidiaries Guaranty]/5/ ([each] as defined in the Credit Agreement). This Note
is subject to voluntary prepayment and mandatory repayment prior to the
Revolving Loan Maturity Date, in whole or in part, as provided in the Credit
Agreement.
In case an Event of Default (as defined in the Credit Agreement) shall
occur and be continuing, the principal of and accrued interest on this Note may
be declared to be due and payable in the manner and with the effect provided in
the Credit Agreement.
The [US Borrowers] [Dutch Borrower] hereby waive[s] presentment,
demand, protest or notice of any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK.
[RESOLUTION PERFORMANCE
PRODUCTS LLC
By:_____________________________________
Name:
Title:
RPP CAPITAL CORPORATION
By:____________________________________
Name:
Title:]/6/
[RESOLUTION NEDERLAND B.V.
________________________
/3/ Insert in Revolving Notes issued by the US Borrowers.
/4/ Insert in Revolving Notes issued by the Dutch Borrower.
/5/ Insert in Revolving Notes issued by the US Borrowers.
/6/ Insert in Revolving Notes issued by the US Borrower.
Page 3
By:_____________________________________
Name:
Title:]/7/
_______________________
/7/ Insert in Revolving Notes issued by the Dutch Borrower.
EXHIBIT B-4
-----------
SWINGLINE NOTE
--------------
$15,000,000.00 New York, New York
__________ __, ____
FOR VALUE RECEIVED, [RESOLUTION PERFORMANCE PRODUCTS LLC, a Delaware
limited liability company ("RPP USA"), and RPP CAPITAL CORPORATION, a Delaware
corporation ("US Finance Corp." and, together with RPP USA, the "US Borrowers")]
[RESOLUTION NEDERLAND B.V., a company organized under the laws of The
Netherlands (the "Dutch Borrower")], hereby [jointly and severally]/1/
promise[s] to pay to MORGAN STANLEY SENIOR FUNDING, INC. or its registered
assigns (the "Lender"), [in lawful money of the United States of America] [in
lawful money of the respective Approved Currency (as defined in the Credit
Agreement referred to below) of the Swingline Loans (as defined in the Credit
Agreement) from time to time evidenced hereby]/2/ in immediately available
funds, at the applicable Payment Office (as defined in the Credit Agreement
referred to below) on the Swingline Expiry Date (as defined in the Credit
Agreement) the principal sum of FIFTEEN MILLION DOLLARS ($15,000,000.00) or, if
less, the unpaid principal amount of all Swingline Loans (as defined in the
Credit Agreement) made by the Lenders pursuant to the Credit Agreement[,
provided that, notwithstanding the fact that the principal amount of this Note
- --------
is denominated in Dollars, to the extent provided in the Credit Agreement, all
payments hereunder in respect of Euro Swingline Loans (as defined in the Credit
Agreement) evidenced hereby shall be made in Euros (although payments in respect
of Euro Swingline Loans shall be made in United States dollars (using the Dollar
Equivalent (as defined in the Credit Agreement) of such Euro Swingline Loans) to
the extent required pursuant to the provisions of Section 1.14 of the Credit
Agreement), whether or not the Dollar Equivalent (as defined in the Credit
Agreement) thereof, when added to the outstanding principal amount of all Dollar
Swingline Loans (as defined in the Credit Agreement) evidenced hereby, would
exceed the stated principal amount of this Note]./3/
The [US Borrowers] [Dutch Borrower] also [jointly and severally]/4/ promise[s]
to pay interest on the unpaid principal amount hereof in like money at said
office from the date hereof until paid at the rates and at the times provided in
Section 1.08 of the Credit Agreement.
________________________
/1/ Include in Swingline Note issued by the US Borrowers.
/2/ Include in Swingline Note issued by the Dutch Borrower.
/3/ Include in Swingline Note issued by the Dutch Borrower.
/4/ Include in Swingline Note issued by the US Borrowers.
This Note is one of the Swingline Notes referred to in the Credit
Agreement, dated as of November 14, 2000 among Resolution Performance Products
Inc., Resolution Performance Products LLC, RPP Capital Corporation, Resolution
Nederland B.V., the lending institutions from time to time party thereto
(including the Lender), Salomon Smith Barney Inc., as Syndication Agent, Morgan
Guaranty Trust Company of New York, as Documentation Agent, and Morgan Stanley
Senior Funding, Inc., as Lead Arranger, sole Book Manager and Administrative
Agent (as amended, restated, modified and/or supplemented from time to time, the
"Credit Agreement") and is entitled to the benefits thereof and of the other
Credit Documents (as defined in the Agreement). This Note is secured by [certain
of]/5/ the Security Documents (as defined in the Credit Agreement) and is
entitled to the benefits of [the Guaranties]/6/ [each of the Holdings Guaranty
and the US Subsidiaries Guaranty]/7/ ([each] as defined in the Credit
Agreement). This Note is subject to voluntary prepayment and mandatory repayment
prior to the Swingline Expiry Date, in whole or in part, as provided in the
Credit Agreement.
In case an Event of Default (as defined in the Credit Agreement) shall
occur and be continuing, the principal of and accrued interest on this Note may
be declared to be due and payable in the manner and with the effect provided in
the Credit Agreement.
The [US Borrowers] [Dutch Borrower] hereby waive[s] presentment,
demand, protest or notice of any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK.
[RESOLUTION PERFORMANCE
PRODUCTS LLC
By: __________________________
Name:
Title:
_______________________
/5/ Insert in Swingline Note issued by the US Borrowers.
/6/ Insert in Swingline Note issued by the Dutch Borrower.
/7/ Insert in Swingline Note issued by the US Borrowers.
RPP CAPITAL CORPORATION
By:_____________________________________
Name:
Title:]/8/
[RESOLUTION NEDERLAND B.V.
By:_____________________________________
Name:
Title:]/9/
____________________
/8/ Insert in Swingline Notes issued by the US Borrowers.
/9/ Insert in Swingline Notes issued by the Dutch Borrower.
EXHIBIT C
---------
LETTER OF CREDIT REQUEST
------------------------
Dated /(1)/
-------
Morgan Stanley Senior Funding, Inc. ("MSSF"), as
Administrative Agent, under the Credit Agreement, dated as
of November 14, 2000 (as amended, modified, restated
and/or supplemented from time to time, the "Credit
Agreement"), among RESOLUTION PERFORMANCE PRODUCTS INC.,
RESOLUTION PERFORMANCE PRODUCTS LLC, RPP CAPITAL
CORPORATION, RESOLUTION NEDERLAND B.V., the lending
institutions from time to time party thereto, Salomon
Smith Barney Inc., as Syndication Agent, Morgan Guaranty
Trust Company of New York, as Documentation Agent, and
MSSF, as Lead Arranger, sole Book Manager and
Administrative Agent
1633 Broadway, 26/th/ Floor
New York, New York 10036
Attention: James Morgan
Letter of Credit Issuer: /(2)/
-----------
[Address]
Attention:
Ladies and Gentlemen:
Pursuant to Section 2.02 of the Credit Agreement, we hereby request
that the Letter of Credit Issuer referred to above issue a [Trade] [Standby]
Letter of Credit for the account of the undersigned on /(3)/ (the
-----------
"Date of Issuance"), which [Trade] [Standby] Letter of Credit shall be
denominated in [Dollars] [Euros] and shall be in the aggregate Stated Amount
of /(4)/ .
-------------
For purposes of this Letter of Credit Request, unless otherwise
defined herein, all capitalized terms used herein which are defined in the
Credit Agreement shall have the respective meaning provided therein.
_______________________
/(1)/ Date of Letter of Credit Request.
/(2)/ [Insert Name and Address of Letter of Credit Issuer]
/(3)/ Date of Issuance which shall be (x) a Business Day and (y) at least 3
Business Days after the date hereof (or such earlier date as is
acceptable to the respective Letter of Credit Issuer in any given
case).
/(4)/ Aggregate initial Stated Amount of Letter of Credit which should not be
less than $100,000 (or the Dollar Equivalent thereof in the case of a
Letter of Credit denominated in Euros) or such lesser amount as is
acceptable to the respective Letter of Credit Issuer. No more than the
Dollars Equivalent of $25,000,000 of Letters of Credit in the aggregate
may be denominated in Euros.)
The beneficiary of the requested Letter of Credit will be /(5)/ ,
----------
and such Letter of Credit will be in support of /(6)/ and will have a stated
---------
expiration date of /(7)/ .
----------
We hereby certify that:
(A) the representations and warranties contained in the Credit
Agreement and in the other Credit Documents are and will be true
and correct in all material respects on the Date of Issuance,
both before and after giving effect to the issuance of the Letter
of Credit requested hereby, unless stated to relate to a specific
earlier date, in which case such representations and warranties
shall be true and correct in all material respects as of such
earlier date; and
(B) no Default or Event of Default has occurred and is continuing
nor, after giving effect to the issuance of the Letter of Credit
requested hereby, would such a Default or Event of Default occur.
Copies of all documentation with respect to the supported transaction are
attached hereto.
RESOLUTION PERFORMANCE PRODUCTS
LLC
By:________________________________
Name:
Title:
RPP CAPITAL CORPORATION
By:________________________________
Name:
Title:
______________________________
/(5)/ Insert name and address of beneficiary.
/(6)/ Insert a description of L/C Supportable Indebtedness (in the case of
Standby Letters of Credit) and insert description of permitted trade
obligations (in the case of Trade Letters of Credit).
/(7)/ Insert the last date upon which drafts may be presented which may not be
later than (i) in the case of Standby Letters of Credit, the earlier of
(x) one year after the date of issuance and (y) the tenth Business Day
preceding the Revolving Loan Maturity Date, and (ii) in the case of Trade
Letters of Credit, (x) 180 days after the date of issuance and (y) 30
days prior to the Revolving Loan Maturity Date.
EXHIBIT D
---------
SECTION 4.04(b)(ii) CERTIFICATE
-------------------------------
Reference is hereby made to the Credit Agreement, dated as of November
14, 2000, among Resolution Performance Products Inc., Resolution Performance
Products LLC ("RPP USA"), RPP Capital Corporation ("US Finance Corp." and,
together will RPP USA, the "US Borrowers"), Resolution Nederland B.V., the
lending institutions from time to time party thereto, Salomon Smith Barney Inc.,
as Syndication Agent, Morgan Guaranty Trust Company of New York, as
Documentation Agent, and Morgan Stanley Senior Funding, Inc., as Lead Arranger,
sole Book Manager and Administrative Agent (in such capacity, together with any
successor administrative agent, the "Administrative Agent") (as amended,
restated, modified and/or supplemented from time to time, the "Credit
Agreement"). Pursuant to the provisions of Section 4.04(b)(ii) of the Credit
Agreement, the undersigned hereby certifies that it is not a "bank" as such term
is used in Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as
amended.
The undersigned shall promptly notify the US Borrowers and the
Administrative Agent if any of the representations and warranties made herein
are no longer true and correct.
[NAME OF LENDER]
By ____________________________
Name:
Title:
Date: ___________, ____