Exhibit 10.1
------------
EXECUTION COPY
$450,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 28, 2006
Among
BUILDING MATERIALS CORPORATION OF AMERICA
as Borrower
and
THE INITIAL LENDERS, INITIAL ISSUING BANK AND
SWING LINE BANK NAMED HEREIN
as Initial Lenders, Initial Issuing Bank and Swing Line Bank
and
CITICORP USA, INC.
as Collateral Monitoring Agent and Administrative Agent
and
CITIGROUP GLOBAL MARKETS INC.
and
DEUTSCHE BANK SECURITIES INC.
as Joint Lead Arrangers and Joint Book Managers
and
DEUTSCHE BANK SECURITIES INC.
as Syndication Agent
and
THE CIT GROUP/BUSINESS CREDIT, INC., JPMORGAN CHASE BANK, N.A.
AND WACHOVIA BANK, N.A.
as Co-Documentation Agents
T A B L E O F C O N T E N T S
SECTION PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms...............................................................................2
SECTION 1.02. Computation of Time Periods; Other Definitional Provisions.........................................38
SECTION 1.03. Accounting Terms...................................................................................38
SECTION 1.04. Currency Equivalents Generally.....................................................................38
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit.............................................................38
SECTION 2.02. Making the Advances................................................................................40
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit.................................42
SECTION 2.04. Repayment of Advances..............................................................................44
SECTION 2.05. Termination or Reduction of the Commitments........................................................45
SECTION 2.06. Prepayments........................................................................................46
SECTION 2.07. Interest...........................................................................................47
SECTION 2.08. Fees...............................................................................................48
SECTION 2.09. Conversion of Advances.............................................................................49
SECTION 2.10. Increased Costs, Etc...............................................................................50
SECTION 2.11. Payments and Computations..........................................................................52
SECTION 2.12. Taxes..............................................................................................55
SECTION 2.13. Sharing of Payments, Etc...........................................................................58
SECTION 2.14. Use of Proceeds....................................................................................58
SECTION 2.15. Defaulting Lenders.................................................................................58
SECTION 2.16. Evidence of Debt...................................................................................61
SECTION 2.17. Increase in Revolving Credit Commitments...........................................................62
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Effectiveness of Amended and Restated Credit Agreement.....................63
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance and Renewal....................................66
SECTION 3.03. Determinations Under Section 3.01..................................................................67
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.....................................................67
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants..............................................................................74
SECTION 5.02. Negative Covenants.................................................................................82
SECTION 5.03. Reporting Requirements.............................................................................94
SECTION 5.04. Financial Covenant.................................................................................98
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default..................................................................................98
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default..........................................102
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action..........................................................................103
SECTION 7.02. Agents' Reliance, Etc.............................................................................103
SECTION 7.03. CUSA and Affiliates...............................................................................104
SECTION 7.04. Lender Party Credit Decision......................................................................104
SECTION 7.05. Indemnification...................................................................................104
SECTION 7.06. Successor Agents..................................................................................105
SECTION 7.07. Appointment of Supplemental Collateral Monitoring Agents..........................................106
SECTION 7.08. The Joint Lead Arrangers, the Syndication Agent and the Co-Documentation Agents...................107
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc...................................................................................107
SECTION 8.02. Notices, Etc......................................................................................108
SECTION 8.03. No Waiver; Remedies...............................................................................109
SECTION 8.04. Costs and Expenses................................................................................110
SECTION 8.05. Right of Set-off..................................................................................112
SECTION 8.06. Binding Effect....................................................................................112
SECTION 8.07. Assignments and Participations....................................................................112
SECTION 8.08. Execution in Counterparts.........................................................................116
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SECTION 8.09. No Liability of the Issuing Bank..................................................................116
SECTION 8.10. Confidentiality...................................................................................117
SECTION 8.11. Release of Collateral.............................................................................117
SECTION 8.12. Jurisdiction, Etc.................................................................................117
SECTION 8.13. Governing Law.....................................................................................118
SECTION 8.14. Waiver of Jury Trial..............................................................................118
SECTION 8.15. Required Environmental Tasks......................................................................118
SECTION 8.16. Agreement to Comply With Court Order..............................................................119
SECTION 8.17. Patriot Act Notice................................................................................119
SECTION 8.18. Assignment by Existing Lenders....................................................................119
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Subsidiary Guarantors
Schedule III - Eligible Receivables Matters
Schedule IV - Receivable Obligor Matters
Schedule 4.01(a) - Equity Investors
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(f) - Disclosed Litigation
Schedule 4.01(l) - Plans, Multiemployer Plans and Welfare Plans
Schedule 4.01(m) - Environmental Disclosure
Schedule 4.01(n) - Open Years
Schedule 4.01(p) - Surviving Debt
Schedule 4.01(q) - Liens
Schedule 4.01(r) - Owned Real Property
Schedule 4.01(s)(1) - Leased Real Property (Lessee)
Schedule 4.01(s)(2) - Leased Real Property (Lessor)
Schedule 4.01(t) - Investments
Schedule 4.01(u) - Intellectual Property
Schedule 4.01(v) - Material Contracts
Schedule 5.01(t) - Previously Mortgaged Properties
Schedule 5.02(e) - Excluded Assets
Schedule 8.15 - Environmental Tasks and Related Items
EXHIBITS
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Solvency Certificate
Exhibit E - Form of Opinion of Counsel to the Loan Parties
Exhibit F-1 - Form of Mortgage
Exhibit F-2 - Form of Mortgage Amendment
Exhibit G - Form of Borrowing Base Certificate
Exhibit H - Approval Order
Exhibit I - Form of Opinion of Marc J. Kurzman, acting General
Counsel to the Borrower
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AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT (this "AGREEMENT") dated
as of September 28, 2006 among BUILDING MATERIALS CORPORATION OF AMERICA, a
Delaware corporation (the "BORROWER"), the banks, financial institutions and
other institutional lenders listed on the signature pages hereof as the Initial
Lenders (the "INITIAL LENDERS"), the financial institution listed on the
signature pages hereof as the Initial Issuing Bank (the "INITIAL ISSUING BANK")
and the financial institution listed on the signature pages hereof as the
Initial Swing Line Bank (the "INITIAL SWING LINE BANK" and, together with the
Initial Lenders and the Initial Issuing Bank, the "INITIAL LENDER PARTIES"),
CITICORP USA, INC. as collateral monitoring agent (in such capacity, together
with any successor collateral agent appointed pursuant to Article VII, the
"COLLATERAL MONITORING AGENT") for the Secured Parties (as hereinafter defined),
and as administrative agent (in such capacity, together with any successor
administrative agent appointed pursuant to Article VII, the "ADMINISTRATIVE
AGENT"), CITIGROUP GLOBAL MARKETS INC. and DEUTSCHE BANK SECURITIES INC., as
joint lead arrangers (in such capacities, the "JOINT LEAD ARRANGERS") and joint
book managers, DEUTSCHE BANK SECURITIES INC., as syndication agent (the
"SYNDICATION AGENT"), and THE CIT GROUP/BUSINESS CREDIT, INC., JPMORGAN CHASE
BANK, N.A. AND WACHOVIA BANK, N.A., as co-documentation agents (collectively,
the "CO-DOCUMENTATION AGENTS", and together with the Collateral Monitoring
Agent, the Administrative Agent, the Joint Lead Arrangers and the Syndication
Agent, the "AGENTS"), for the Lender Parties (as hereinafter defined).
PRELIMINARY STATEMENTS:
(1) The Borrower is party to a Credit Agreement dated as of
July 9, 2003 (as amended by the First Amendment thereto dated as of May 7, 2004,
the Second Amendment thereto dated as of July 12, 2004, the Third Amendment
thereto dated as of July 19, 2004, the Fourth Amendment thereto dated as of
November 5, 2004 and the Fifth Amendment thereto dated as of April 7, 2006, the
"EXISTING CREDIT AGREEMENT") with the agents and lenders party thereto.
(2) The Borrower currently has certain outstanding Debt (as
hereinafter defined), including, without limitation, (i) Debt under the Existing
Credit Agreement, (ii) certain 8% senior notes due 2007 (the "2007 NOTES"),
(iii) certain 8% senior notes due 2008 (the "2008 NOTES") and (iv) certain 7.75%
senior notes due 2014 (the "2014 NOTES").
(3) (a) This Agreement, on the terms and conditions set forth
herein, shall amend and restate the Existing Credit Agreement in its entirety as
of the Effective Date, (b) this Agreement shall not constitute a novation of the
obligations and liabilities existing under the Existing Credit Agreement or
evidence payment of all or any such obligations and liabilities and (c) from and
after the Effective Date, the Existing Credit Agreement shall be of no further
force and effect.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ADMINISTRATIVE AGENT" has the meaning specified in the
recital of parties to this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means the account of the
Administrative Agent maintained by the Administrative Agent with
Citibank, N.A. at its office at 388 Greenwich Avenue, New York, New
York 10043, Account No. 36852248, Attention: Timothy Singles, or such
other account as the Administrative Agent shall specify in writing to
the Lender Parties.
"ADVANCE" means a Revolving Credit Advance, a Swing Line
Advance or a Letter of Credit Advance.
"AFFILIATE" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such
Person, whether through the ownership of Voting Interests, by contract
or otherwise.
"AGENTS" has the meaning specified in the recital of parties
to this Agreement.
"AGREEMENT VALUE" means, for each Hedge Agreement, on any date
of determination, an amount determined by the Administrative Agent
equal to: (a) in the case of a Hedge Agreement documented pursuant to
the Master Agreement (Multicurrency-Cross Border) published by the
International Swap and Derivatives Association, Inc. (the "MASTER
AGREEMENT"), the amount, if any, that would be payable by any Loan
Party or any of its Subsidiaries to its counterparty to such Hedge
Agreement, as if (i) such Hedge Agreement was being terminated early on
such date of determination, (ii) such Loan Party or Subsidiary was the
sole "Affected Party", and (iii) the Administrative Agent was the sole
party determining such payment amount (with the Administrative Agent
making such determination pursuant to the provisions of the form of
Master Agreement); (b) in the case of a Hedge Agreement traded on an
exchange, the mark-to-market value of such Hedge Agreement, which will
be the unrealized loss on such Hedge Agreement to the Loan Party or
Subsidiary of a Loan Party party to such Hedge Agreement determined by
the Administrative Agent based on the settlement price of such Hedge
Agreement on such date of determination; or (c) in all other cases, the
mark-to-market value of such Hedge Agreement, which will be the
unrealized loss on such Hedge Agreement to the Loan Party or Subsidiary
of a Loan Party party to such Hedge Agreement determined by the
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Administrative Agent as the amount, if any, by which (i) the present
value of the future cash flows to be paid by such Loan Party or
Subsidiary exceeds (ii) the present value of the future cash flows to
be received by such Loan Party or Subsidiary pursuant to such Hedge
Agreement; capitalized terms used and not otherwise defined in this
definition shall have the respective meanings set forth in the above
described Master Agreement.
"AMORTIZATION BASKET" means $25 million in the aggregate in
each Fiscal Year.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender
Party, such Lender Party's Domestic Lending Office in the case of a
Base Rate Advance and such Lender Party's Eurodollar Lending Office in
the case of a Eurodollar Rate Advance.
"APPLICABLE MARGIN" means (a) as of any date during the period
commencing on the Effective Date and ending on the date which is the
last day of the Borrower's first full fiscal quarter following the
Effective Date, 1.50% per annum, and (b) as of any date thereafter, a
rate per annum equal to the rate set forth below opposite the then
applicable Leverage Ratio (determined on the last day of the Borrower's
most recently ended fiscal quarter for which financial statements and
other information were delivered pursuant to Section 5.03(b) or (c)):
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Applicable Margin
---------------------------------------- -----------------
Leverage Ratio: Rate:
-------------- ----
---------------------------------------- -----------------
Equal to or less than 2.50 to 1. 1.25%
---------------------------------------- -----------------
Greater than 2.50 to 1 and less than
or equal to 4.25 to 1. 1.50%
---------------------------------------- -----------------
Greater than 4.25 to 1. 1.75%
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Any change in the Applicable Margin resulting from a change in
the Leverage Ratio on the last day of any subsequent fiscal quarter of
the Borrower shall become effective as to all Advances on the date of
delivery by the Borrower to the Administrative Agent of financial
statements and other information pursuant to Section 5.03(b) or (c), as
applicable, for the period ending on the last day of such subsequent
fiscal quarter, provided, however, that the Applicable Margin shall be
a rate of 1.75% per annum if the Borrower has failed to furnish to the
Administrative Agent such financial statements and other information
with respect to such fiscal quarter when required under Section 5.03(b)
or (c), as applicable, in each case until such financial statements and
other information have been furnished.
"APPLIED CREDITS" means credit balances that reduce the
principal balance of non-delinquent Receivables of the Loan Parties
owed by a particular obligor, to offset delinquent Receivables from
such obligor which have been disputed and determined not to be owed by
such obligor.
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"APPROVED FUND" means any Fund that is administered or managed
by (a) a Lender Party, (b) an Affiliate of a Lender Party or (c) an
entity or an Affiliate of an entity that administers or manages a
Lender Party.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender Party and an Eligible Assignee, and accepted
by the Administrative Agent, in accordance with Section 8.07 and in
substantially the form of Exhibit C hereto.
"AVAILABLE AMOUNT" of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit at
such time (assuming compliance at such time with all conditions to
drawing).
"AVAILABLE LIQUIDITY" means, on any date of determination, the
sum of (i) the aggregate amount available to be drawn under the
Facilities (taking into account the Loan Value amount at such time),
and (ii) cash and Cash Equivalents held by the Borrower and its
Subsidiaries (so long as such cash and Cash Equivalents are under the
control of, and subject to a perfected security interest in favor of,
the Collateral Agent for the benefit of the Secured Parties).
"BASE RATE" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by
Citibank, N.A. in New York, New York, from time to time, as
Citibank, N.A.'s base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if
there is no nearest 1/4 of 1%, to the next higher 1/4 of 1%)
of (i) 1/2 of 1% per annum, plus (ii) the rate obtained by
dividing (A) the latest three-week moving average of secondary
market morning offering rates in the United States for
three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period ending
on the previous Friday by Citibank, N.A. on the basis of such
rates reported by certificate of deposit dealers to and
published by the Federal Reserve Bank of New York or, if such
publication shall be suspended or terminated, on the basis of
quotations for such rates received by Citibank, N.A. from
three New York certificate of deposit dealers of recognized
standing selected by Citibank, N.A. by (B) a percentage equal
to 100% minus the average of the daily percentages specified
during such three-week period by the Board of Governors of the
Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, but not limited to,
any emergency, supplemental or other marginal reserve
requirement) for Citibank, N.A. with respect to liabilities
consisting of or including (among other liabilities)
three-month U.S. dollar non-personal time deposits in the
United States, plus (iii) the average during such three-week
period of the annual assessment rates estimated by Citibank,
N.A. for determining the then current annual assessment
payable by Citibank, N.A. to the Federal Deposit Insurance
4
Corporation (or any successor) for insuring U.S. dollar
deposits of Citibank, N.A. in the United States; and
(c) 1/2 of 1% per annum above the Federal Funds Rate.
"BASE RATE ADVANCE" means an Advance that bears interest as
provided in Section 2.07(a)(i).
"BMCA HOLDINGS" means BMCA Holdings Corporation, a Delaware
corporation.
"BORROWER" has the meaning specified in the recital of parties
to this Agreement.
"BORROWER'S ACCOUNT" means the account of the Borrower
maintained by the Borrower with Citibank, N.A. at its office at 399
Park Avenue, New York, New York 10043, Account No. NY DDA 30541035
Building Materials Corporation of America, or such other account as the
Borrower shall specify in writing to the Administrative Agent.
"BORROWING" means a Revolving Credit Borrowing or a Swing Line
Borrowing.
"BORROWING BASE CERTIFICATE" means a certificate in
substantially the form of Exhibit G hereto, duly certified by a
Responsible Financial Officer of the Borrower.
"BORROWING BASE DEFICIENCY" means, at any time, the failure of
(a) the Loan Value at such time to equal or exceed (b) the sum of (i)
the aggregate principal amount of the Revolving Credit Advances, the
Letter of Credit Advances and the Swing Line Advances outstanding at
such time plus (ii) the aggregate Available Amount under all Letters of
Credit outstanding at such time.
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
"CAPITAL EXPENDITURES" means, for any Person for any period,
all expenditures made, directly or indirectly, by such Person or any of
its Subsidiaries during such period for equipment, fixed assets, real
property or improvements, or for replacements or substitutions therefor
or additions thereto, that have been or should be, in accordance with
GAAP, reflected as additions to property, plant or equipment on a
Consolidated balance sheet of such Person.
"CAPITALIZED LEASES" means all leases that have been or should
be, in accordance with GAAP, recorded as capitalized leases.
"CASH COLLATERAL ACCOUNT" has the meaning specified in the
Security Agreement.
"CASH DISCOUNT RESERVES" means those reserves against the
principal balance of Receivables of the Loan Parties which represents
anticipated cash discounts, as such reserves are reflected in the
5
general ledger of such Loan Parties in accordance with their customary
practice and otherwise acceptable to the Administrative Agent.
"CASH EQUIVALENTS" means any of the following, to the extent
owned by the Borrower or any of its Subsidiaries free and clear of all
Liens other than Liens created under the Collateral Documents (a)
securities issued or fully guaranteed or insured by the United States
government or any agency thereof, (b) certificates of deposit,
eurodollar time deposits, overnight bank deposits and bankers'
acceptances of any commercial bank organized under the laws of the
United States, any state thereof, the District of Columbia, any foreign
bank, or its branches or agencies that, at the time of acquisition, are
rated at least "A-1" by S&P or "P-1" by Moody's, (c) commercial paper
of an issuer rated at least "A-1" by S&P or "P-1" by Moody's or (d)
shares of any money market fund that (i) has at least 95% of its assets
invested continuously in the types of investments referred to in
clauses (a), (b) and (c) above, (ii) has net assets of not less than
$500 million and (iii) is rated at least "A-1" by S&P or "P-1" by
Moody's; provided, however, that the maturities of all obligations of
the type specified in clauses (a), (b) and (c) above shall not exceed
360 days.
"CASUALTY EVENT" means the disposition of property pursuant to
a condemnation proceeding or the destruction of property as a result of
casualty.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. 9601 et seq., as it
may be as amended from time to time during the term of this Agreement.
"CERTAIN PERMITTED DISPOSITIONS" means, with respect to any
assets of any Loan Party, any sale, lease, transfer or other
disposition in connection with the following: (i) sales of Inventory in
the ordinary course of its business and the granting of any option or
other right to purchase, lease or otherwise acquire Inventory in the
ordinary course of its business; (ii) sales, transfers or other
dispositions of assets among Loan Parties; (iii) any such transaction
that constitutes an investment in a Non-Recourse Subsidiary or other
Subsidiary that is not a Loan Party permitted under Section
5.02(f)(ii), (iv) any cash payment made by any Loan Party in the
ordinary course of business; and (v) any Casualty Event.
"CFC" means an entity that is a controlled foreign corporation
under Section 957 of the Internal Revenue Code.
"CHANGE OF CONTROL" means the occurrence of any of the
following:
(a) prior to the time that at least 15% of the then
outstanding Voting Interests of the Parent, the Borrower, or
any Subsidiary of the Parent of which the Borrower is also a
Subsidiary is publicly traded on a national securities
exchange or in the NASDAQ (national market system), the
Permitted Holders cease to be the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 of the Securities and
Exchange Commission under the Securities Act of 1934, as
amended), directly or indirectly, of majority voting power of
the Voting Interests of the Borrower, whether as a result of
6
issuance of securities of the Borrower or any of its
Affiliates, any merger, consolidation, liquidation or
dissolution of the Borrower or any of its Affiliates, any
direct or indirect transfer of securities by any Permitted
Holder or by the Parent or any of its Subsidiaries or
otherwise (for purposes of this clause (a) and clause (b)
below, the Permitted Holders shall be deemed to beneficially
own any Voting Interests of a corporation (the "specified
corporation") held by any other corporation (the "parent
corporation") so long as the Permitted Holders beneficially
own (as so defined), directly or indirectly, a majority of the
Voting Interests of the parent corporation);
(b) any "Person" (as such term is used in sections
13(d) and 14(d) of the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as amended), other
than one or more Permitted Holders, is or becomes the
beneficial owner (as defined in clause (a) above, except that
a Person shall be deemed to have "beneficial ownership" of all
shares that any such Person has the right to acquire, whether
such right is exercisable immediately or only after the
passage of time), directly or indirectly, of more than 35% of
the Voting Interest or Parent or the Borrower; provided that
the Permitted Holders beneficially own (as defined in clause
(a) above), directly or indirectly, in the aggregate a lesser
percentage of the Voting Interests of the Parent or the
Borrower than such other Person and do not have the right or
ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors of
Parent or the Borrower; or
(c) during any period of two consecutive years,
individuals who at the beginning of such period constituted
the Board of Directors of the Borrower (together with any new
directors whose election by such Board or whose nomination for
election by the shareholders of the Borrower including
predecessors, was approved by a vote of a majority of the
directors of the Borrower then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for
any reason to constitute a majority of the Board of Directors
of the Borrower then in office.
"COLLATERAL" means all "Collateral" referred to in the
Collateral Documents and all other property that is or is intended to
be subject to any Lien in favor of the Collateral Agent for the benefit
of the Secured Parties.
"COLLATERAL AGENT" means Citibank, N.A., in its capacity as
collateral agent under the Collateral Documents.
"COLLATERAL AGENT AGREEMENT" means the Amended and Restated
Collateral Agent Agreement, dated as of July 9, 2003, among the
Borrower, each other Grantor party thereto, the Administrative Agent,
the Collateral Monitoring Agent, each senior note trustee specified
therein and the Collateral Agent, as amended supplemented or otherwise
modified from time to time.
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"COLLATERAL DOCUMENTS" means the Security Agreement, the
Mortgages, the Collateral Agent Agreement, each of the collateral
documents, instruments and agreements delivered pursuant to Section
5.01(j), and each other agreement that creates or purports to create a
Lien in favor of the Collateral Agent for the benefit of the Secured
Parties.
"COLLATERAL MONITORING AGENT" has the meaning specified in the
recital of parties to this Agreement.
"COMMITMENT" means a Revolving Credit Commitment or a Letter
of Credit Commitment.
"CONFIDENTIAL INFORMATION" means information that any Loan
Party furnishes to any Agent or any Lender Party on a confidential
basis, but does not include any such information that is or becomes
generally available to the public other than as a result of a breach by
such Agent or any Lender Party of its obligations hereunder or that is
or becomes available to such Agent or such Lender Party from a source
other than the Loan Parties that is not, to the best of such Agent's or
such Lender Party's knowledge, acting in violation of a confidentiality
agreement with a Loan Party.
"CONSOLIDATED" refers to the consolidation of accounts in
accordance with GAAP.
"CONTINGENT OBLIGATION" means, with respect to any Person, any
Obligation or arrangement of such Person to guarantee or with the
effect of guaranteeing any Obligations constituting Debt ("PRIMARY
OBLIGATIONS") of any other Person (the "PRIMARY OBLIGOR") in any
manner, whether directly or indirectly. The amount of any such
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 less, the maximum
amount of such primary obligation for which such Person may be liable
pursuant to the terms of the instrument evidencing such Contingent
Obligation) or, if not stated or determinable, the anticipated
liability in respect thereof (assuming such Person is required to
perform thereunder), as determined by such Person in accordance with
generally accepted accounting principles.
"CONVERSION", "CONVERT" and "CONVERTED" each refer to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.09 or 2.10.
"CREDITORS' COMMITTEE" means any official committee of
creditors appointed in G-I Holdings' bankruptcy proceedings.
"CURRENT ASSETS" of any Person means all assets of such Person
that would, in accordance with GAAP, be classified as current assets of
a company conducting a business the same as or similar to that of such
Person, after deducting adequate reserves in each case in which a
reserve is proper in accordance with GAAP.
"CUSA" means Citicorp USA, Inc.
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"DEBT" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all Obligations of
such Person for the deferred purchase price of property or services
(other than trade payables and other accrued current liabilities
incurred in the ordinary course of such Person's business and either
(i) not overdue (to the knowledge of the Borrower exercising reasonable
diligence) by more than the later to occur of (A) 90 days from the due
date thereof and (B) 30 days from the date the Borrower becomes aware
(exercising reasonable diligence) that such liability is overdue, or
(ii) are being contested in good faith in an appropriate manner), (c)
all Obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) all Obligations of such Person created
or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person, (e) all
Obligations of such Person as lessee under Capitalized Leases, (f) all
Obligations of such Person under acceptance, letter of credit or
similar facilities, (g) all Obligations (other than pursuant to the
2001 Long Term Incentive Plan in effect on the date hereof or similar
plans) of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Equity Interests in such Person or
any other Person or any warrants, rights or options to acquire such
Equity Interests on or prior to the Termination Date, valued, in the
case of Redeemable Preferred Interests, at the greater of its voluntary
or involuntary liquidation preference plus accrued and unpaid
dividends, (h) all Contingent Obligations and Off-Balance Sheet
Obligations of such Person and (i) all indebtedness and other payment
Obligations referred to in clauses (a) through (h) above of another
Person secured by (or for which the holder of such Debt has an existing
right, contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable
for the payment of such indebtedness or other payment Obligations.
"DEBT FOR BORROWED MONEY" of any Person means, at any date of
determination, all items that, in accordance with GAAP, would be
classified as indebtedness on a Consolidated balance sheet of such
Person at such date.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the passage of time or the
requirement that notice be given or both.
"DEFAULT INTEREST" has the meaning set forth in Section
2.07(b).
"DEFAULTED ADVANCE" means, with respect to any Lender Party at
any time, the portion of any Advance required to be made by such Lender
Party to the Borrower pursuant to Section 2.01 or 2.02 at or prior to
such time that has not been made by such Lender Party or by the
Administrative Agent for the account of such Lender Party pursuant to
Section 2.02(e) as of such time. In the event that a portion of a
Defaulted Advance shall be deemed made pursuant to Section 2.15(a), the
remaining portion of such Defaulted Advance shall be considered a
Defaulted Advance originally required to be made pursuant to Section
2.01 on the same date as the Defaulted Advance so deemed made in part.
9
"DEFAULTED AMOUNT" means, with respect to any Lender Party at
any time, any amount required to be paid by such Lender Party to any
Agent or any other Lender Party hereunder or under any other Loan
Document at or prior to such time that has not been so paid as of such
time, including, without limitation, any amount required to be paid by
such Lender Party to (a) the Swing Line Bank pursuant to Section
2.02(b) to purchase a portion of a Swing Line Advance made by the Swing
Line Bank, (b) the Issuing Bank pursuant to Section 2.03(c) to purchase
a portion of a Letter of Credit Advance made by the Issuing Bank, (c)
the Administrative Agent pursuant to Section 2.02(e) to reimburse the
Administrative Agent for the amount of any Advance made by the
Administrative Agent for the account of such Lender Party, (d) any
other Lender Party pursuant to Section 2.13 to purchase any
participation in Advances owing to such other Lender Party and (e) any
Agent or the Issuing Bank pursuant to Section 7.05 to reimburse such
Agent or the Issuing Bank for such Lender Party's ratable share of any
amount required to be paid by the Lender Parties to such Agent or the
Issuing Bank as provided therein. In the event that a portion of a
Defaulted Amount shall be deemed paid pursuant to Section 2.15(b), the
remaining portion of such Defaulted Amount shall be considered a
Defaulted Amount originally required to be paid hereunder or under any
other Loan Document on the same date as the Defaulted Amount so deemed
paid in part.
"DEFAULTING LENDER" means, at any time, any Lender Party that,
at such time, (a) owes a Defaulted Advance or a Defaulted Amount or (b)
shall take any action or be the subject of any action or proceeding of
a type described in Section 6.01(f).
"DILUTION RESERVES" means reserves against the principal
balance of Receivables of the Loan Parties, reflecting a variety of
items including expected pricing disputes, returned goods, short
shipments, freight claims, bad debts, and warranty deductions that
exceed an amount equal to 5% of the aggregate balance at such time of
all Eligible Receivables prior to giving effect to such Dilution
Reserves.
"DISCLOSED LITIGATION" has the meaning specified in Section
4.01(f).
"DJ ACTION" means (a) the adversary proceeding filed by G-I
Holdings in the United States Bankruptcy Court for the District of New
Jersey on February 27, 2001 against the Creditors' Committee in the G-I
Holdings bankruptcy proceedings, consisting of an action seeking
declaratory judgment that the Borrower has no successor liability for
asbestos claims against G-I Holdings and that the Borrower is not the
alter ego of G-I Holdings, and (b) the subsequent litigation associated
with such action.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party,
as the case may be, or such other office of such Lender Party as such
Lender Party may from time to time specify to the Borrower and the
Administrative Agent.
"EBITDA" means, at any date of determination, the difference
between (a) the sum, determined on a Consolidated basis, without
duplication, of (i) net income (or net loss), (ii) interest expense,
10
(iii) income tax expense, (iv) depreciation expense, (v) amortization
expense, (vi) extraordinary losses (as reflected on the income
statement of the Borrower), and (vii) all other non-recurring, non-cash
charges (as reflected on the income statement of the Borrower), and (b)
(i) any cash payments made with respect to any non-recurring, non-cash
charges, taken in a prior period, and which were previously included
under clause (a) above for purposes of this Agreement, in each case of
the Borrower and its Subsidiaries, (ii) extraordinary gains (as
reflected on the income statement of the Borrower), and (iii) all
non-recurring non-cash gains (as reflected on the income statement of
the Borrower), in each case, determined in accordance with GAAP for the
applicable period.
"EFFECTIVE DATE" has the meaning specified in Section 3.01.
"ELIGIBLE ASSIGNEE" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; (d) a commercial bank organized under the
laws of the United States, or any State thereof, and having total
assets in excess of $2,000 million; (e) a savings and loan association
or savings bank organized under the laws of the United States, or any
State thereof, and having total assets in excess of $2,000 million; (f)
a commercial bank organized under the laws of any other country that is
a member of the OECD or has concluded special lending arrangements with
the International Monetary Fund associated with its General
Arrangements to Borrow or of the Cayman Islands, or a political
subdivision of any such country, and having total assets in excess of
$2,000 million, so long as such bank is acting through a branch or
agency located in the country in which it is organized or another
country that is described in this clause (f); (g) the central bank of
any country that is a member of the OECD; (h) a finance company,
insurance company or other financial institution or fund (whether a
corporation, partnership, trust or other entity) that is engaged in
making, purchasing or otherwise investing in commercial loans in the
ordinary course of business and having a combined capital and surplus
of at least $250 million and (i) any other Person (other than a natural
person) approved by the Administrative Agent, the Issuing Bank and, so
long as no Event of Default shall have occurred and be continuing at
the time of effectiveness of such assignment, the Borrower (which
approvals shall not be unreasonably withheld); provided that
notwithstanding the foregoing, "Eligible Assignee" shall not include
the Borrower or any of the Borrower's Affiliates or Subsidiaries or any
of its competitors.
"ELIGIBLE COLLATERAL" means, collectively, Eligible Equipment,
Eligible Inventory, Eligible Precious Metals, Eligible Real Property,
Eligible Receivables and Eligible Supplies.
"ELIGIBLE EQUIPMENT" means the Equipment (excluding precious
metals) of the Loan Parties, (a) that is owned by a Loan Party, and (b)
with respect to which the representations and warranties applicable to
such Equipment contained in any Loan Document are true and correct in
all material respects, and, in each case, that the Administrative Agent
deems to be Eligible Equipment, based on such credit and collateral
considerations as the Administrative Agent may, in its sole discretion
exercised reasonably, deem appropriate for this transaction. The value
of such Equipment shall be determined by the Administrative Agent in
its sole discretion taking into consideration, among other factors, its
11
value. By way of example only, and without limiting the discretion of
the Administrative Agent to consider any Equipment not to be Eligible
Equipment, the Administrative Agent will consider any of the following
classes of Equipment not to be Eligible Equipment:
(i) Equipment located on leaseholds as to which the
lessor has not entered into a consent and agreement providing
the Collateral Agent and the Collateral Monitoring Agent with
the right to receive notice of default, the right to repossess
such Equipment at any time and such other rights as may be
acceptable to the Collateral Agent and the Collateral
Monitoring Agent;
(ii) Equipment in respect of which the Security
Agreement, after giving effect to the related filings of
financing statements that have then been made, if any, does
not or has ceased to create a valid and perfected first
priority lien or security interest in favor of the Collateral
Agent securing the Secured Obligations; and
(iii) Equipment that is obsolete, unusable or
otherwise unmerchantable.
"ELIGIBLE INVENTORY" means the Inventory of the Loan Parties
including raw materials, work-in-process, finished goods, parts and
supplies (a) that is owned by a Loan Party, (b) with respect to which
the Collateral Agent has a valid, perfected and enforceable Lien, (c)
with respect to which the representations and warranties applicable to
such Inventory contained in any Loan Document are true and correct in
all material respects, (d) that is not obsolete, unmerchantable,
unusable or otherwise unavailable for sale, and (e) with respect to
which (in respect of any Inventory labeled with a brand name or
trademark and sold by the applicable Loan Party pursuant to a trademark
owned by such Loan Party or a license granted to such Loan Party) the
Collateral Agent would have rights under such trademark or license
pursuant to the Security Agreement or other agreement satisfactory to
the Administrative Agent to sell such Inventory in connection with a
liquidation thereof and, in each case, that the Administrative Agent
deems to be Eligible Inventory based on such credit and collateral
considerations as the Administrative Agent may, in its sole discretion
exercised reasonably, deem appropriate for this transaction. The value
of such Inventory shall be determined by the Administrative Agent in
its sole discretion taking into consideration, among other factors, the
lowest of its cost, its book value determined in accordance with GAAP
and its Net Orderly Liquidation Value. By way of example only, and
without limiting the discretion of the Administrative Agent to consider
any Inventory not to be Eligible Inventory, the Administrative Agent
will consider any of the following classes of Inventory not to be
Eligible Inventory;
(i) Inventory located on leaseholds as to which the
lessor has not entered into a consent and agreement providing
the Collateral Agent and the Collateral Monitoring Agent with
the right to receive notice of default, the right to repossess
such Inventory at any time and such other rights as may be
acceptable to the Collateral Agent and the Collateral
Monitoring Agent unless a reserve satisfactory to the
12
Administrative Agent shall have been established with respect
thereto;
(ii) Inventory consisting of promotional, marketing,
packaging or shipping materials and supplies;
(iii) Inventory that fails to meet all standards
imposed by any governmental agency, or department or division
thereof, having regulatory authority over such Inventory or
its use or sale;
(iv) Inventory located outside the United States and
Canada;
(v) Subject to clause (i) above, Inventory that is
not in the possession of or under the sole control of the Loan
Parties; and
(vi) Inventory in respect of which the Security
Agreement, after giving effect to the related filings of
financing statements that have then been made, if any, does
not or has ceased to create a valid and perfected first
priority lien or security interest in favor of the Collateral
Agent for the benefit of the Secured Parties securing the
Secured Obligations.
"ELIGIBLE PRECIOUS METALS" means the platinum and rhodium of
the Loan Parties (a) that is owned by a Loan Party, (b) with respect to
which the representations and warranties applicable to such platinum
and rhodium contained in any Loan Document are true and correct in all
material respects, (c) with respect to which the Loan Parties have
maintained reporting requirements and controls as to the custody of
such metals that are satisfactory to the Administrative Agent, and, in
each case, that the Administrative Agent deems to be Eligible Precious
Metals based on such credit and collateral considerations as the
Administrative Agent may, in its sole discretion exercised reasonably,
deem appropriate for this transaction and for such assets. The value of
such precious metals shall be determined by the Administrative Agent in
its sole discretion taking into consideration any and all factors the
Administrative Agent may deem appropriate for such purposes. By way of
example only, and without limiting the discretion of the Administrative
Agent to consider any precious metals not to be Eligible Precious
Metals, the Administrative Agent will consider any of the following
classes of precious metals not to be Eligible Precious Metals:
(i) precious metals located anywhere other than on
property owned by a Loan Party at its Nashville, Tennessee
plant;
(ii) precious metals that are not in the possession
of or under the sole control of the Loan Parties; and
(iii) precious metals in respect of which the
Security Agreement, after giving effect to the related filings
of financing statements that have then been made, if any, does
not or has ceased to create a valid and perfected first
priority lien or security interest in favor of the Collateral
Agent for the benefit of the Secured Parties securing the
Secured Obligations.
13
"ELIGIBLE REAL PROPERTY" means any parcel of real property
located in the United States and owned by a Loan Party as to which: (a)
the representations and warranties applicable to such real property
contained in any Loan Document are true and correct in all material
respects, and (b) the Eligible Real Property Conditions have been
satisfied with respect to such property, and, in each case, as to which
the Administrative Agent deems to be Eligible Real Property based on
such credit and collateral considerations as the Administrative Agent
may, in its sole discretion exercised reasonably, deem appropriate for
this transaction. The value of such real property shall be determined
by the Administrative Agent in its sole discretion taking into
consideration any and all factors the Administrative Agent may deem
appropriate for such purposes including, without limitation, the fair
market value of such real property as determined by means of third
party appraisals. By way of example only, and without limiting the
discretion of the Administrative Agent to consider any real property
not to be Eligible Real Property, the Administrative Agent will
consider any of the following classes of real property not to be
Eligible Real Property:
(i) real property which the Administrative Agent
determines in its sole discretion, exercised reasonably,
should not be considered to be Eligible Real Property based on
the results of the environmental assessment reports prepared
with respect to such property;
(ii) real property that fails to meet all standards
(including, without limitation, any and all Environmental
Laws) imposed by any governmental agency, or department or
division thereof, having regulatory authority over such real
property or its use or sale, regardless of whether such
failure is reasonably likely to result in liability to any
Loan Party or Secured Party;
(iii) real property that is not in the possession of
or under the sole control of the Loan Parties;
(iv) real property that is determined by the
Administrative Agent not to be Eligible Real Property in
accordance with Section 8.15; or
(v) real property in respect of which the related
Mortgage, after giving effect to all related filings and
recordations that have then been made, does not or has ceased
to create a valid first priority security interest in favor of
the Collateral Agent for the benefit of the Secured Parties
securing the Secured Obligations.
"ELIGIBLE REAL PROPERTY CONDITIONS" means, with respect to any
parcel of real property, as of the date of determination, each of the
following:
(a) the Administrative Agent shall have received a Mortgage
duly executed by the appropriate Loan Party:
(b) the Administrative Agent shall have received evidence that
counterparts of such Mortgage have been duly executed, acknowledged and
delivered on or before such date and are in form suitable for filing or
recording in all filing or recording offices that the Administrative
Agent may deem reasonably necessary in order to create a valid first
14
and subsisting Lien on the property described therein (subject to
Permitted Encumbrances) in favor of the Collateral Agent for the
benefit of the Secured Parties and that all filing and recording taxes
and fees have been paid,
(c) the Administrative Agent shall have received a fully paid
American Land Title Association Lender's Extended Coverage title
insurance policy in form and substance, with endorsements and in
amounts acceptable to the Administrative Agent, issued, coinsured and
reinsured by title insurers acceptable to the Administrative Agent,
insuring such Mortgage to be valid first and subsisting Liens on the
property described therein, free and clear of all defects (including,
but not limited to, mechanics' and materialmen's Liens) and
encumbrances, excepting only Permitted Encumbrances, and providing for
such other affirmative insurance (including endorsements for future
advances under the Loan Documents and for mechanics' and materialmen's
Liens) and such coinsurance and direct access reinsurance as the
Administrative Agent may deem necessary,
(d) the Administrative Agent shall have received an American
Land Title Association/American Congress on Surveying and Mapping form
survey for which all necessary fees (where applicable) have been paid,
and dated no more than 30 days before the date of such Mortgage,
certified to the Administrative Agent and the issuer of the relevant
title insurance policy in a manner satisfactory to the Administrative
Agent by a land surveyor duly registered and licensed in the States in
which the property described in such surveys is located and acceptable
to the Administrative Agent, showing all buildings and other
improvements, any off-site improvements, the location of any easements,
parking spaces, rights of way, building set-back lines and other
dimensional regulations and the absence of encroachments, either by
such improvements or on to such property, and other defects, other than
encroachments and other defects acceptable to the Administrative Agent,
(e) in the case of any Mortgage of a leasehold interest, the
Administrative Agent shall have received a collateral access agreement,
in form and substance satisfactory to the Administrative Agent,
executed by each of the lessor of any such parcel of real property that
is a leased real property, it being agreed that if the Borrower has not
obtained the same on or prior to such date, the Administrative Agent
shall reserve against Loan Value an amount equal to three (3) months'
rent that is payable by the Borrower or the applicable Loan Party, as
tenant under each such lease,
(f) the Administrative Agent shall have received a zoning
compliance letter from the applicable municipality, either
substantially in the form delivered to Borrower's counsel by the
Administrative Agent dated no more than 30 days before the date of such
Mortgage or in the form customarily furnished by the applicable
municipality,
(g) the Administrative Agent shall have received evidence of
the insurance required by the terms of such Mortgage,
(h) the Administrative Agent shall have received an appraisal
of each such parcel of real property, which appraisal shall comply with
the requirements of the Federal Financial Institutions Reform, Recovery
15
and Enforcement Act of 1989 and shall be from a Person acceptable to
the Administrative Agent and otherwise in form and substance
satisfactory to the Administrative Agent, and
(i) the Administrative Agent shall have received such other
consents, agreements and confirmations of lessors and third parties as
the Administrative Agent may reasonably deem necessary and evidence
that all other actions that the Administrative Agent may deem necessary
in order to create valid first and subsisting Liens on the property
described in such Mortgage has been taken.
"ELIGIBLE RECEIVABLES" means only such Receivables of the Loan
Parties as the Administrative Agent, in its sole discretion, exercised
reasonably based on credit and collateral considerations appropriate
for this transaction, shall from time to time elect to consider
Eligible Receivables for purposes of this Agreement. The value of such
Receivables shall be determined by the Administrative Agent in its sole
discretion taking into consideration, among other factors, their book
value determined in accordance with GAAP, subject to such reserves as
may be established by the Administrative Agent using criteria customary
for Receivables of a similar nature (including, without limitation,
Specified Deductions), and deemed appropriate for this transaction by
the Administrative Agent using criteria customary for Receivables of a
similar nature. By way of example only, and without limiting the
discretion of the Administrative Agent to consider any Receivables not
to be Eligible Receivables, the Administrative Agent will consider any
of the following classes of Receivables not to be Eligible Receivables:
(a) Receivables that do not arise out of sales of
goods or rendering of services in the ordinary course of the
business of the Loan Parties;
(b) Receivables on terms other than those normal or
customary in the business of the Loan Parties;
(c) Receivables owing from any Person that is an
Affiliate of any Loan Party or any of its Subsidiaries;
(d) Receivables more than 105 days past the original
invoice date or more than 30 days past the date due; except as
specified on Schedule III hereto;
(e) Receivables that are extended, rewritten, waived,
restructured, or otherwise modified from time to time;
(f) Receivables owing from any Person from which an
aggregate amount of more than 25% of the Receivables owing is
more than 30 days past due;
(g) Receivables owing from any Person that (i) has
disputed liability for any Receivable owing from such Person
or (ii) has otherwise asserted any claim, demand or liability
against any Loan Party or any of its Subsidiaries, whether by
action, suit, counterclaim or otherwise, but only to the
extent of such claim, demand or liability;
16
(h) Receivables owing from any Person that shall take
or be the subject of any action or proceeding of a type
described in Section 6.01(f);
(i) Receivables (i) owing from any Person that is
also a supplier to or creditor of any Loan Party to the extent
of the amount of any right of set-off, unless such Person has
waived all rights of set-off in a manner acceptable to the
Administrative Agent or (ii) representing any manufacturer's
or supplier's credits, discounts, incentive plans or similar
arrangements entitling any Loan Party to discounts on future
purchase therefrom;
(j) Receivables arising out of sales to account
debtors outside the United States or Canada unless the sale is
on letter of credit or acceptance terms reasonably acceptable
to the Administrative Agent;
(k) Receivables arising out of sales on a
bill-and-hold, guaranteed sale, sale-or-return, sale on
approval or consignment basis or subject to any right of
return, set-off or charge-back;
(l) Receivables owing from an account debtor that is
an agency, department or instrumentality of the United States
or any State thereof unless the Borrower shall have satisfied
the requirements of the Assignment of Claims Act of 1940, as
amended, and any similar state legislation;
(m) Receivables the full and timely payment of which
the Administrative Agent in accordance with its customary
criteria and in its sole discretion believes is likely not to
occur;
(n) Receivables not evidenced by an invoice or other
writing in form and substance reasonably satisfactory to the
Administrative Agent;
(o) Receivables with respect to which the
representations and warranties set forth in the Transaction
Documents applicable to Receivables are not true and correct;
(p) (i) Except as set forth on Schedule IV, so long
as Home Depot or any other Receivables Obligor has long-term
unsecured debt ratings of at least "BBB-" and "Baa3" (in each
case with stable outlooks) from S&P and Moody's, respectively,
Receivables owing from such Receivables Obligor in excess of
25% of all Eligible Receivables, and (ii) in any circumstance
where clause (i) is not applicable, Receivables owing from
such Receivables Obligor in excess of 15% of all Eligible
Receivables;
(q) Receivables in respect of which the Collateral
Documents, after giving effect to the related filings of
financing statements that have then been made, if any, do not
or have ceased to create a valid and perfected first priority
lien or security interest in favor of the Collateral Agent for
the benefit of the Secured Parties securing the Secured
Obligations; and
17
(r) Receivables owing from an account debtor located
in New Jersey unless, at such time, the Loan Party to which
such Receivables are owed has provided satisfactory evidence
to the Administrative Agent of such Loan Party's qualification
to do business as a corporation in such state.
"ELIGIBLE SUPPLIES" means the supplies of the Loan Parties (a)
that are owned by a Loan Party, (b) with respect to which the
Collateral Agent has a valid, perfected and enforceable Lien, (c) with
respect to which the representations and warranties applicable to such
supplies contained in any Loan Document are true and correct in all
material respects, (d) that are not obsolete, unmerchantable, unusable
or otherwise unavailable for their intended use, and (e) with respect
to which (in respect of any supplies labeled with a brand name or
trademark and used by the applicable Loan Party pursuant to a trademark
owned by such Loan Party or a license granted to such Loan Party) the
Collateral Agent would have rights under such trademark or license
pursuant to the Security Agreement or other agreement satisfactory to
the Administrative Agent to use such supplies in connection with or
following any enforcement actions and, in each case, that the
Administrative Agent deems to be Eligible Supplies based on such credit
and collateral considerations as the Administrative Agent may, in its
sole discretion exercised reasonably, deem appropriate for this
transaction. The value of such supplies shall be determined by the
Administrative Agent in its sole discretion taking into consideration,
among other factors, the lowest of its cost, its book value determined
in accordance with GAAP and its Net Orderly Liquidation Value. By way
of example only, and without limiting the discretion of the
Administrative Agent to consider any supplies not to be Eligible
Supplies, the Administrative Agent will consider any of the following
classes of supplies not to be Eligible Supplies:
(i) supplies located on leaseholds as to which the
lessor has not entered into a consent and agreement providing
the Collateral Agent and the Collateral Monitoring Agent with
the right to receive notice of default, the right to repossess
such supplies at any time and such other rights as may be
acceptable to the Collateral Agent and the Collateral
Monitoring Agent;
(ii) supplies consisting of promotional, marketing,
packaging or shipping materials and supplies;
(iii) supplies that fail to meet all standards
imposed by any governmental agency, or department or division
thereof, having regulatory authority over such supplies or
their use;
(iv) supplies located outside the United States and
Canada;
(v) supplies that are not in the possession of or
under the sole control of the Loan Parties; and
(vi) supplies in respect of which the Security
Agreement, after giving effect to the related filings of
financing statements that have then been made, if any, does
not or has ceased to create a valid and perfected first
priority lien or security interest in favor of the Collateral
18
Agent for the benefit of the Secured Parties securing the
Secured Obligations.
"ENVIRONMENTAL ACTION" means any action, suit, written demand,
demand letter, written claim, notice of non-compliance or violation,
written notice of liability or potential liability, investigation,
proceeding, consent order or consent agreement relating to any
Environmental Laws or Environmental Permits or arising from alleged
injury or threat to human health, safety or the environment, including,
without limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority or third
party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"ENVIRONMENTAL LAW" means any applicable international,
Federal, state, local or foreign statute, law, ordinance, rule,
regulation, code, order, writ, judgment, injunction, decree or judicial
or enforceable administrative agency interpretation, policy or guidance
relating to pollution or protection of the environment, human health,
safety or natural resources, including, without limitation, those
relating to the use, handling, transportation, treatment, manufacture,
generation, storage, disposal, release or discharge of Hazardous
Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"EQUIPMENT" means all Equipment referred to in Section 1.1 of
the Security Agreement.
"EQUITY INTERESTS" means, with respect to any Person, any and
all shares, interests (including preferred interests), warrants,
rights, options or other interests, participations or other equivalents
of or interests in (however designated) equity of such Person,
including common or preferred stock, whether now outstanding or issued
after the date hereof, but excluding any debt securities convertible
into or exchangeable for such equity.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the applicable regulations
promulgated and rulings issued thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title
IV of ERISA is a member of the controlled group of any Loan Party, or
under common control with any Loan Party, within the meaning of Section
414 of the Internal Revenue Code.
"ERISA EVENT" means (a)(i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC or by ERISA or (ii) the requirements of
Section 4043(b) of ERISA apply with respect to a contributing sponsor,
as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event
described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c)
of ERISA is reasonably expected to occur with respect to such Plan
19
within the following 30 days; (b) the application for a minimum funding
waiver with respect to a Plan; (c) the provision by the administrator
of any Plan of a notice of intent to terminate such Plan, pursuant to
Section 4041(a)(2) of ERISA (including any such notice with respect to
a plan amendment referred to in Section 4041(e) of ERISA); (d) the
cessation of operations at a facility of any Loan Party or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA;
(e) the withdrawal by any Loan Party or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (f)
the conditions for imposition of a lien under Section 302(f) of ERISA
shall have been met with respect to any Plan; (g) the adoption of an
amendment to a Plan requiring the provision of security to such Plan
pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or
the occurrence of any event or condition described in Section 4042 of
ERISA that constitutes grounds for the termination of, or the
appointment of a trustee to administer, such Plan.
"ESCROW BANK" has the meaning specified in Section 2.15(c).
"EUROCURRENCY LIABILITIES" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"EURODOLLAR BASE RATE" means, with respect to any Interest
Period for any Eurodollar Rate Advance, the rate determined by the
Administrative Agent to be the offered rate for deposits in U.S.
dollars for the applicable Interest Period appearing on the Dow Jones
Markets Telerate Page 3750 as of 11:00 a.m., London time, on the second
full Business Day next preceding the first day of each Interest Period.
In the event that such rate does not appear on the Dow Jones Markets
Telerate Page 3750 (or otherwise on the Dow Jones Markets screen), the
Eurodollar Base Rate for the purposes of this definition shall be
determined by reference to such other comparable publicly available
service for displaying eurodollar rates as may be selected by the
Administrative Agent, or, in the absence of such availability, the
Eurodollar Base Rate shall be the rate of interest determined by the
Administrative Agent to be the rate per annum at which deposits in U.S.
dollars are offered by the principal office of Citibank, N.A. in London
to major banks in the London interbank market at 11:00 a.m. (London
time) two Business Days before the first day of such Interest Period in
an amount substantially equal to the Eurodollar Rate Loan of Citibank,
N.A. for a period equal to such Interest Period.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Eurodollar
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party
(or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender Party as such Lender Party may from
time to time specify to the Borrower and the Administrative Agent.
"EURODOLLAR RATE" means, with respect to any Interest Period
for any Eurodollar Rate Advance, an interest rate per annum equal to
the rate per annum obtained by dividing (a) the Eurodollar Base Rate by
(b)(i) a percentage equal to 100% minus (ii) the reserve percentage
20
applicable two Business Days before the first day of such Interest
Period under regulations issued from time to time by the Federal
Reserve Board for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New
York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which
the Eurodollar Rate is determined) having a term equal to such Interest
Period.
"EURODOLLAR RATE ADVANCE" means an Advance that bears interest
as provided in Section 2.07(a)(ii).
"EURODOLLAR RATE RESERVE PERCENTAGE" for any Interest Period
for all Eurodollar Rate Advances comprising part of the same Borrowing
means the reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Rate Advances is determined) having a
term equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXCLUDED ASSET" has the meaning specified in Section
5.02(e)(iii).
"EXISTING CREDIT AGREEMENT" has the meaning specified in the
Preliminary Statements.
"EXISTING INDENTURES" means collectively, (a) the Indenture,
dated as of October 20, 1997, between the Borrower and The Bank of New
York ("BNY"), as trustee, pursuant to which the 2007 Notes were issued,
(b) the Indenture, dated as of December 3, 1998, between the Borrower
and BNY, as trustee, pursuant to which the 2008 Notes were issued, and
(c) the Indenture, dated as of July 26, 2004, among the Borrower,
certain of the Borrower's subsidiaries party thereto as guarantors and
Wilmington Trust Company, as trustee, pursuant to which the 2014 Notes
were issued, as each indenture described in the foregoing clauses (a)
through (c) above has been amended, supplemented or otherwise modified
from time to time as of the date hereof, and as each such indenture may
be further amended, supplemented or otherwise modified from time to
time as permitted under the Loan Documents.
"EXISTING LENDER" means each "Lender" under and as defined in
the Existing Credit Agreement.
"EXISTING LETTERS OF CREDIT" means the Letters of Credit
issued under the Existing Credit Agreement and that shall remain
outstanding on and as of the Effective Date.
21
"EXISTING MORTGAGE" has the meaning set forth in Section
5.01(t).
"EXTRAORDINARY RECEIPT" means any cash received by or paid to
or for the account of any Person not in the ordinary course of
business, including, without limitation, tax refunds, pension plan
reversions, proceeds of insurance (including, without limitation, any
key man life insurance but excluding proceeds of business interruption
insurance to the extent such proceeds constitute compensation for lost
earnings), condemnation awards (and payments in lieu thereof),
indemnity payments and any purchase price adjustment received in
connection with any purchase agreement.
"FACILITY" means the Revolving Credit Facility, the Swing Line
Facility or the Letter of Credit Facility.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest rate per annum 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 that is a
Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"FEDERAL RESERVE BOARD" means the Board of Governors of the
United States Federal Reserve System, or any successor thereto.
"FEE LETTERS" means (a) the fee letter dated August 21, 2006
between the Borrower and Citigroup Global Markets Inc., and (b) the fee
letter dated August 21, 2006 among the Borrower, Deutsche Bank
Securities Inc. and Deutsche Bank Trust Company Americas, each as
amended or superseded.
"FISCAL YEAR" means a fiscal year of the Borrower and its
Consolidated Subsidiaries ending on December 31 in any calendar year.
"FUND" means any Person (other than an individual) that is or
will be engaged in making, purchasing, holding or otherwise investing
in commercial loans and similar extensions of credit in the ordinary
course of its business.
"FUTURE G-I LETTERS OF CREDIT" means the Letters of Credit to
be issued after the Effective Date for the benefit of G-I Holdings that
do not constitute Initial G-I Holdings Letters of Credit. For the
avoidance of doubt, issuances of Future G-I Letters of Credit, as well
as renewals of Future G-I Letters of Credit (to the extent such
renewals increase the stated amount of such Future G-I Letters of
Credit), shall be deemed to be restricted distributions for purposes of
Section 5.02(g).
"GAAP" has the meaning specified in Section 1.03.
"G-I HOLDINGS" means G-I Holdings, Inc. a Delaware
corporation.
22
"G-I HOLDINGS TAX GROUP" means G-I Holdings and the
corporations that in any tax year (ending before or after the Effective
Date) join with G-I Holdings, the Borrower, or any successor or
predecessor thereof in filing a consolidated U.S. Federal income tax
return as members of an affiliated group within the meaning of Section
1504(a)(1) of the Internal Revenue Code.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state, province, city, municipal entity or other political subdivision
thereof, and any governmental, executive, legislative, judicial,
administrative or regulatory agency, department, authority,
instrumentality, commission, board, bureau or similar body, whether
Federal, state, provincial, territorial, local or foreign.
"GOVERNMENTAL AUTHORIZATION" means any authorization,
approval, consent, franchise, license, covenant, order, ruling, permit,
certification, exemption, notice, declaration or similar right,
undertaking or other action of, to or by, or any filing, qualification
or registration with, any Governmental Authority.
"HAZARDOUS MATERIALS" means (a) petroleum or petroleum
products, by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"HEDGE AGREEMENTS" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other hedging
agreements.
"INCREMENTAL PP&E AVAILABILITY" means at any time, 75% of the
Market Value In Place Assuming Continued Use of any Equipment and 50%
of the fair market value of real property, in each case, that becomes
Eligible Collateral of the Loan Parties through acquisition or
otherwise, during the previous 12 month period, as measured on the
first and each subsequent anniversary of the Effective Date and as
determined by third party appraisals (and any updates thereof)
acceptable to the Administrative Agent in its sole discretion exercised
reasonably.
"INCREMENTAL REVOLVING CREDIT COMMITMENT" has the meaning
specified in Section 2.17(a).
"INCREMENTAL REVOLVING CREDIT COMMITMENT NOTICE" has the
meaning specified in Section 2.17(a).
"INDEMNIFIED PARTY" has the meaning specified in Section
8.04(b).
"INITIAL G-I HOLDINGS LETTERS OF CREDIT" means the Letters of
Credit issued under the Existing Credit Agreement and any Letter of
Credit to be issued on the Effective Date for the benefit of G-I
Holdings, in an aggregate stated amount not to exceed $12 million,
together with any renewals (so long as all requirements for renewal
shall have been met) or replacement Letters of Credit, in each case,
made simultaneously with the expiration, cancellation or other
23
termination of the Initial G-I Holdings Letter of Credit so renewed or
replaced, and made for the same purpose and for the same beneficiary as
such Initial G-I Holdings Letter of Credit so renewed or replaced,
provided that at no time shall the aggregate stated amount of all
outstanding Initial G-I Holdings Letters of Credit exceed $12 million.
For the avoidance of doubt, no Initial G-I Holdings Letter of Credit
shall be deemed to be a restricted distribution for purposes of Section
5.02(g).
"INITIAL ISSUING BANK", "INITIAL LENDER PARTIES", "INITIAL
LENDERS" and "INITIAL SWING LINE BANK" each has the meaning specified
in the recital of parties to this Agreement.
"INITIAL PP&E AVAILABILITY" means, at any time, the sum of (a)
75% of the Market Value In Place Assuming Continued Use of Eligible
Equipment of the Loan Parties as of the Effective Date and (b) 50% of
the fair market value of Eligible Real Property of the Loan Parties as
of the Effective Date, in each case as determined by third party
appraisals (and any updates thereof) acceptable to the Administrative
Agent in its sole discretion exercised reasonably.
"INSUFFICIENCY" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"INTELLECTUAL PROPERTY SECURITY AGREEMENT" means the
Intellectual Property Security Agreement, dated as of July 9, 2003, by
and among the Borrower, each of the other Grantors party thereto and
the Collateral Agent, as amended, supplemented or otherwise modified
from time to time.
"INTENDED USE TRANSACTIONS" has the meaning specified in
Section 2.14.
"INTEREST COVERAGE RATIO" means, at any date of determination,
the ratio of (a) EBITDA to (b) cash interest paid or required to be
paid on, all Debt for Borrowed Money, in each case, of or by the
Borrower and its Consolidated Subsidiaries for the period of four
consecutive fiscal quarters most recently ended with respect to which
financial statements are required to have been delivered pursuant to
this Agreement.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance, and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be
one, two, three or six months, as the Borrower may, upon notice
received by the Administrative Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the first day of
such Interest Period, select; provided, however, that:
(a) the Borrower may not select any Interest Period
with respect to any Eurodollar Rate Advance under a Facility
that ends after any principal repayment installment date for
24
such Facility unless, after giving effect to such selection,
the aggregate unpaid principal amount of Advances having
Interest Periods that end on or prior to such principal
repayment installment date for such Facility shall be at least
equal to the aggregate principal amount of Advances under such
Facility due and payable on or prior to such date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing
shall be of the same duration;
(c) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(d) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"INVENTORY" means all Inventory referred to in Section 1.1 of
the Security Agreement.
"INVESTMENT" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any Equity Interests or
Debt or the assets comprising a division or business unit or a
substantial part or all of the business of such Person, any capital
contribution to such Person or any other direct or indirect investment
in such Person, including, without limitation, any acquisition by way
of a merger or consolidation (or similar transaction) and any
arrangement pursuant to which the investor incurs Debt of the types
referred to in clause (h) or (i) of the definition of "DEBT" in respect
of such Person.
"ISSUING BANK" means the Initial Issuing Bank and any Eligible
Assignee to which the Letter of Credit Commitment hereunder has been
assigned pursuant to Section 8.07 so long as such Eligible Assignee
expressly agrees to perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be
performed by it as an Issuing Bank and notifies the Administrative
Agent of its Applicable Lending Office and the amount of its Letter of
Credit Commitment (which information shall be recorded by the
Administrative Agent in the Register), for so long as such Initial
Issuing Bank or Eligible Assignee, as the case may be, shall have a
Letter of Credit Commitment.
25
"JOINT LEAD ARRANGERS" has the meaning specified in the
recital of parties to this Agreement.
"L/C COLLATERAL ACCOUNT" has the meaning specified in the
Security Agreement.
"L/C DISBURSEMENT" shall mean a payment or disbursement made
by the Issuing Bank pursuant to a Letter of Credit.
"L/C RELATED DOCUMENTS" has the meaning specified in Section
2.04(d)(ii).
"LENDER PARTY" means any Lender, the Issuing Bank or the Swing
Line Bank.
"LENDERS" means the Initial Lenders and each Person that shall
become a Lender hereunder pursuant to Section 8.07 for so long as such
Initial Lender or Person, as the case may be, shall be a party to this
Agreement.
"LETTERS OF CREDIT" has the meaning specified in Section
2.01(d).
"LETTER OF CREDIT ADVANCE" means an advance made by the
Issuing Bank or any Lender pursuant to Section 2.03(c).
"LETTER OF CREDIT AGREEMENT" has the meaning specified in
Section 2.03(a).
"LETTER OF CREDIT COMMITMENT" means, with respect to the
Issuing Bank at any time, the amount set forth opposite the Issuing
Bank's name on Schedule I hereto under the caption "Letter of Credit
Commitment" or, if the Issuing Bank has entered into an Assignment and
Acceptance, set forth for the Issuing Bank in the Register maintained
by the Administrative Agent pursuant to Section 8.07(d) as the Issuing
Bank's "Letter of Credit Commitment", as such amount may be reduced at
or prior to such time pursuant to Section 2.05.
"LETTER OF CREDIT FACILITY" means a sub-limit available under
the Revolving Credit Facility for the issuance of Letters of Credit in
an aggregate amount not to exceed $100 million, as such sub-limit may
be reduced from time to time pursuant to the terms hereof.
"LEVERAGE RATIO" means, with respect to the Borrower, as of
any date of determination, the ratio of (x) the average total
Consolidated outstanding Debt of the Borrower and its Subsidiaries for
the immediately preceding four fiscal quarters (calculated on the basis
of the sum, on the last day of each calendar month during such four
fiscal quarter period, of (i) the principal amount of the total Debt
for Borrowed Money (other than Subordinated Debt owing to G-I Holdings
or BMCA Holdings Corporation) of the Borrower and its Subsidiaries,
plus (without duplication), (ii) the aggregate principal amount
outstanding under any Subordinated Debt of the Borrower or any of its
Subsidiaries owing to G-I Holdings or BMCA Holdings Corporation minus
(iii) the Borrower's and its Subsidiaries' cash and Cash equivalents)
to (y) Consolidated EBITDA of the Borrower and its Subsidiaries for the
immediately preceding four fiscal quarters of the Borrower ending on
the last day of the fiscal quarter of the Borrower for which financial
26
statements have been, or are required to be, delivered pursuant to
Section 5.03(b) or (c), as applicable.
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"LOAN DOCUMENTS" means (i) this Agreement, (ii) the Notes (if
any), (iii) the Subsidiary Guaranty, (iv) the Collateral Documents, (v)
the Fee Letters, and (vi) each Letter of Credit Agreement in each case
as amended.
"LOAN PARTIES" means the Borrower and the Subsidiary
Guarantors.
"LOAN VALUE" means at any time, an amount determined by the
Administrative Agent in its sole discretion, exercised reasonably,
equal to (a) the sum of (i) up to 85% of the value of Eligible
Receivables; (ii) up to 85% of the Net Orderly Liquidation Value of
Eligible Inventory; (iii) subject to satisfactory reporting
requirements and controls, up to 80% of the fair market value of
Eligible Precious Metals; and (iv) the PP&E Availability; provided,
however that the amount included in Loan Value pursuant to clause (iv)
shall not constitute more than 30% of the aggregate Loan Value, minus
(b) such reserves as the Administrative Agent, in its sole discretion
exercised reasonably, deems appropriate to reflect risks or
contingencies that may affect any one or more class of such items. For
the avoidance of doubt, advance rates, eligibility criteria and
reserves shall be determined on a consistent basis with the
Administrative Agent's customary practices applicable to similar
financings, but with adjustments appropriate for this transaction based
on factors which include, without limitation, risks applicable to this
transaction, and the services (including, but not limited to, services
relating to cash management and/or hedging arrangements) to be provided
by the Agents and Lender Parties in connection with this transaction.
"MARGIN STOCK" has the meaning specified in Regulation U.
"MARKETING PROGRAM RESERVES" means reserves against the
principal balance of Receivables of the Loan Parties reflecting
expected amounts to be offered to customers through various rebates and
marketing programs, as reflected on the weekly roll-forward or the
general ledger in accordance with customary practices.
"MARKET VALUE IN PLACE ASSUMING CONTINUED USE" has the meaning
customarily given to such term by third-party appraisers.
"MATERIAL ADVERSE CHANGE" means any material adverse change in
the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower and its
Subsidiaries, taken as a whole, except for such material adverse change
as may arise solely and directly as a result of the Disclosed
Litigation related to or arising out of the alleged asbestos
liabilities of the Borrower.
27
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower and its
Subsidiaries, taken as a whole, (b) the rights and remedies of any
Agent or any Lender Party under any Loan Document or (c) the ability of
any Loan Party to perform its Obligations under any Loan Document to
which it is or is to be a party, except for such material adverse
effect as may arise solely and directly as a result of the Disclosed
Litigation related to or arising out of the alleged asbestos
liabilities of the Borrower.
"MATERIAL CONTRACT" means, with respect to any Person, each
contract to which such Person is a party involving aggregate
consideration payable to or by such Person of $50 million or more in
any year and, in the case of the Borrower or any of its Subsidiaries,
is a material contract which is required to be filed pursuant to Item
601(a)(10) of Regulation S-K under the Securities Act of 1933.
"MISCELLANEOUS DEDUCTIONS" means collectively, (a) deductions
to the principal balance of Receivables of the Loan Parties relating to
pricing disputes, short shipments, collection disputes, returned goods,
and (b) other miscellaneous deductions.
"MOODY'S" means Moody's Investors Service, Inc.
"MORTGAGE" means (a) each of the Existing Mortgages as the
same may be amended or modified from time to time and (b) each deed of
trust, trust deed or mortgage delivered in accordance with Section
5.01(j), which deed of trust, trust deed or mortgage shall be in
substantially the form of Exhibit F-1 (with such changes as may be
required to account for local law matters) and otherwise in form and
substance reasonably satisfactory to the Administrative Agent.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and at least one
Person other than the Loan Parties and the ERISA Affiliates or (b) was
so maintained and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
"NET CASH PROCEEDS" means, with respect to (A) any sale,
lease, transfer or other disposition including, without limitation, any
and all involuntary dispositions, whether by Casualty Event or
otherwise, of any assets or (B) the incurrence or issuance of any Debt
or (C) the sale or issuance of any Equity Interests (including, without
limitation, any capital contribution) by any Person, or (D) any
Extraordinary Receipt received by or paid to or for the account of any
Person, the aggregate amount of cash received from time to time
(whether as initial consideration or through payment or disposition of
deferred consideration) by or on behalf of such Person in connection
28
with such transaction, in each case, after deducting therefrom only
(without duplication) (a) reasonable and customary brokerage
commissions, underwriting fees and discounts, legal fees, finder's fees
and other similar fees and commissions, (b) the amount of taxes paid or
payable in connection with or as a result of such transaction, (c) the
amount of liability reserves established in accordance with GAAP, (d) a
reasonable reserve for the after tax cost of any indemnification
obligations (fixed or contingent) attributable to sellers indemnities
for the purchases undertaken by the Borrower and/or its Subsidiaries in
connection with such disposition, and (e) the amount of any Debt
secured by a Lien on such assets that, by the terms of the agreement or
instrument governing such Debt, is required to be repaid upon such
disposition, in each case to the extent, but only to the extent, that
the amounts so deducted are, at the time of receipt of such cash,
actually paid to a Person that is not an Affiliate of such Person or
any Loan Party or any Affiliate of any Loan Party; provided, however,
that in the case of taxes that are deductible under clause (b) above
but for the fact that, at the time of receipt of such cash, such taxes
have not been actually paid or are not then payable, such Loan Party or
such Subsidiary may deduct an amount (the "RESERVED AMOUNT") equal to
the amount reserved in accordance with GAAP for such Loan Party's or
such Subsidiary's reasonable estimate of such taxes, other than taxes
for which such Loan Party or such Subsidiary is indemnified, provided
further, however, that, at the time such taxes are paid, an amount
equal to the amount, if any, by which the Reserved Amount for such
taxes exceeds the amount of such taxes actually paid shall constitute
"Net Cash Proceeds" of the type for which such taxes were reserved for
all purposes hereunder.
"NET ORDERLY LIQUIDATION VALUE" has the meaning customarily
given to such term by third-party appraisers.
"NON-RECOURSE SUBSIDIARY" means a subsidiary of any Loan Party
(A) which has been designated as such by such Loan Party, (B) which is
not a Loan Party or otherwise party to the Credit Agreement or any
other Loan Document, (C) which is not capitalized at any time by any
investment by a Loan Party, except to the extent permitted under
Section 5.02(f) and (D) the Debt of which is completely non-recourse to
the Loan Parties or any of their Subsidiaries.
"NOTE" means each promissory note, if any, of the Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A hereto, evidencing the aggregate indebtedness of the Borrower
to such Lender resulting from the Revolving Credit Advances, Letter of
Credit Advances and Swing Line Advances made by such Lender, as
amended.
"NOTICE OF BORROWING" has the meaning specified in Section
2.02(a).
"NOTICE OF ISSUANCE" has the meaning specified in Section
2.03(a).
"NOTICE OF RENEWAL" has the meaning specified in Section
2.01(d).
"NOTICE OF SWING LINE BORROWING" has the meaning specified in
Section 2.02(b).
29
"NOTICE OF TERMINATION" has the meaning specified in Section
2.01(d).
"NPL" means the National Priorities List under CERCLA.
"OBLIGATION" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether
or not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured,
and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 6.01(f). Without
limiting the generality of the foregoing, the Obligations of any Loan
Party under the Loan Documents include (a) the obligation to pay
principal, interest, Letter of Credit commissions, charges, expenses,
fees, attorneys' fees and disbursements, indemnities and other amounts
payable by such Loan Party under any Loan Document and (b) the
obligation of such Loan Party to reimburse any amount in respect of any
of the foregoing that any Lender Party, in its sole discretion, may
elect to pay or advance on behalf of such Loan Party.
"OECD" means the Organization for Economic Cooperation and
Development.
"OFF BALANCE SHEET OBLIGATION" means, with respect to any
Person, any Obligation of such Person under a synthetic lease, tax
retention operating lease, off-balance sheet loan or similar
off-balance sheet financing classified as an operating lease in
accordance with GAAP, if, and only to the extent that, such Obligations
would give rise to a claim against such Person in a proceeding referred
to in Section 6.01(f) (it being understood that this definition of "Off
Balance Sheet Obligation" shall not include operating leases entered
into in the ordinary course of business).
"OPEN YEAR" has the meaning specified in Section 4.01(n)(iii).
"OTHER TAXES" has the meaning specified in Section 2.12(b).
"PARENT" means G-I Holdings so long as it owns, and any other
Person that acquires or owns, directly or indirectly, 80% or more of
the Voting Interests of the Borrower.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"PERMITTED ACQUISITIONS" has the meaning specified in Section
5.02(f)(vii).
"PERMITTED ADVANCES" has the meaning specified in Section
5.02(f)(ii).
"PERMITTED DEBT REPURCHASES" has the meaning specified in
Section 5.02(j)(iii).
"PERMITTED ENCUMBRANCES" has the meaning specified in the
Mortgages.
"PERMITTED HOLDERS" means (a) Samuel J. Heyman, his heirs,
administrators, executors and entities of which a majority of the
Voting Interests is owned by Samuel J. Heyman, his heirs,
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administrators or executors and (b) any Person controlled, directly or
indirectly, by Samuel J. Heyman or his heirs, administrators or
executors.
"PERMITTED LIENS" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b); (b) Liens imposed by operation of law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens
and other similar Liens arising in the ordinary course of business
securing obligations that (i) are not overdue for a period of more than
30 days, and (ii) are being contested in good faith by appropriate
proceedings and with respect to which appropriate reserves have been
established in accordance with GAAP; (c) pledges or deposits to secure
obligations under workers' compensation laws, employment insurance or
other social security obligations or similar legislation or to secure
public or statutory obligations, appeal bonds, performance bonds or
other obligations of a like nature; (d) Permitted Encumbrances; (e)
easements, rights of way and other encumbrances on title to real
property that were not incurred in connection with and do not secure
Debt and do not render title to the property encumbered thereby
uninsurable or materially adversely affect the use of such property for
its intended purposes; (f) financing statements with respect to
lessor's rights or interests in and to the personal property leased to
such Person in the ordinary course of such Person's business other than
through a Capitalized Lease; (g) Liens arising out of judgments or
decrees which are being contested in good faith, provided that
enforcement of such Liens is stayed pending such contest; (h) broker's
liens securing the payment of commissions and management fees in the
ordinary course of business; (i) Liens arising solely from the filing
of UCC financing statements for precautionary purposes in connection
with leases or conditional sales of property that are otherwise
permitted under the Loan Documents; (j) Liens in favor of customs and
revenue authorities arising as a matter of law to secure payment of
non-delinquent customs duties in connection with the importation of
goods; (k) leases or subleases granted to others not interfering in any
material respect with the business of the Borrower and its
Subsidiaries, taken as a whole; (l) Liens encumbering deposits made in
the ordinary course of business to secure obligations arising from
statutory, regulatory, contractual or warranty requirements of the
Borrower or any of its Subsidiaries for which a reserve or other
appropriate provision, if any, as shall be required by GAAP shall have
been made.
"PERSON" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer
Plan.
"PLEDGED DEBT" has the meaning specified in the Security
Agreement.
"PP&E AVAILABILITY" means at any time the sum of (a) Initial
PP&E Availability and (b) Incremental PP&E Availability as defined on
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each anniversary of the Effective Date which has occurred prior to such
time (as reduced pursuant to the definition thereof).
"PREFERRED INTERESTS" means, with respect to any Person,
Equity Interests issued by such Person that are entitled to a
preference or priority over any other Equity Interests issued by such
Person upon any distribution of such Person's property and assets,
whether by dividend or upon liquidation.
"PREPAYMENT DATE" means with respect to any cash receipts from
a transaction described in the definition of "Net Cash Proceeds", the
third Business Day following the date of the receipt of such Net Cash
Proceeds by any Loan Party or any of its Subsidiaries.
"PREVIOUSLY MORTGAGED PROPERTIES" means the properties listed
on Schedule 5.01(t).
"PROPERTIES" means those properties listed on Schedules
4.01(s)(1) and 4.01(r) hereto.
"PRO RATA SHARE" of any amount means, with respect to any
Lender at any time, the product of such amount times a fraction the
numerator of which is the amount of such Lender's Revolving Credit
Commitment at such time (or, if the Commitments shall have been
terminated pursuant to Section 2.05 or 6.01, such Lender's Revolving
Credit Commitment as in effect immediately prior to such termination)
and the denominator of which is the Revolving Credit Facility at such
time (or, if the Commitments shall have been terminated pursuant to
Section 2.05 or 6.01, the Revolving Credit Facility as in effect
immediately prior to such termination).
"RECEIVABLES" means all Receivables referred to in Section 1.1
of the Security Agreement.
"RECEIVABLES OBLIGOR" means, collectively, an obligor under
any Receivable, together with any and all Affiliates of such obligor.
"REDEEMABLE" means, with respect to any Equity Interest, any
Debt or any other right or Obligation, any such Equity Interest, Debt,
right or Obligation that (a) the issuer has undertaken to redeem at a
fixed or determinable date or dates, whether by operation of a sinking
fund or otherwise, or upon the occurrence of a condition not solely
within the control of the issuer or (b) is redeemable at the option of
the holder.
"REDUCTION AMOUNT" has the meaning specified in Section
2.06(b)(iv).
"REGISTER" has the meaning specified in Section 8.07(d).
"REGULATION U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"REQUIRED ENVIRONMENTAL TASKS" has the meaning specified in
Section 8.15.
32
"REQUIRED LENDERS" means, at any time, Lenders owed or holding
at least a majority in interest of the sum of (a) the aggregate
principal amount of the Advances outstanding at such time, (b) the
aggregate Available Amount of all Letters of Credit outstanding at such
time, and (c) the aggregate Unused Revolving Credit Commitments at such
time; provided, however, that if any Lender shall be a Defaulting
Lender at such time, there shall be excluded from the determination of
Required Lenders at such time (i) the aggregate principal amount of the
Advances owing to such Lender (in its capacity as a Lender) and
outstanding at such time, (ii) such Lender's Pro Rata Share of the
aggregate Available Amount of all Letters of Credit outstanding at such
time, and (iii) the Unused Revolving Credit Commitment of such Lender
at such time. For purposes of this definition, the aggregate principal
amount of Swing Line Advances owing to the Swing Line Bank and of
Letter of Credit Advances owing to the Issuing Bank and the Available
Amount of each Letter of Credit shall be considered to be owed to the
Lenders ratably in accordance with their respective Revolving Credit
Commitments.
"RESERVE DEDUCTIONS" means deductions to the outstanding
principal balance of Receivables in an amount equal to the aggregate of
Dilution Reserves, Cash Discount Reserves, Applied Credits, Warranty
Reserves, and Marketing Program Reserves.
"RESPONSIBLE FINANCIAL OFFICER" means the Chief Financial
Officer, Treasurer, and/or Controller (so long as such Person is also a
Responsible Officer of any Loan Party or any of its Subsidiaries).
"RESPONSIBLE OFFICER" means any officer of any Loan Party or
any of its Subsidiaries.
"REVOLVING CREDIT ADVANCE" has the meaning specified in
Section 2.01(b).
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by the
Lenders.
"REVOLVING CREDIT COMMITMENT" means, with respect to any
Lender at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Revolving Credit Commitment" or,
if such Lender has entered into one or more Assignment and Acceptances,
set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 8.07(d) as such Lender's
"Revolving Credit Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.05.
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate
amount of the Lenders' Revolving Credit Commitments at such time.
"REVOLVING CREDIT INCREASE EFFECTIVE DATE" has the meaning
specified in Section 2.17(d).
"RHONE POULENC TRANSACTIONS" means the factual elements and
events involved in or otherwise related to the formation of
Rhone-Poulenc Surfactants and Specialties, L.P. ("RPSS") in 1990, the
contributions thereto and operation thereof, the dissolution,
33
liquidation, and distribution of RPSS assets in 1999 and the pledge of
those assets by one or more members of the G-I Holdings Tax Group, in
each case as further described in the documents either (i) docketed at
Docket Numbers 1028 and 1383 on the docket of the cases pending in the
United States Bankruptcy Court for the District of New Jersey under the
jointly administered Case No. 01-30135 (RG) or (ii) filed with the
court in connection with the case currently pending in the United
States District Court for the District of New Jersey, Case No.
02-CV-03082 (WGB).
"SECURED OBLIGATIONS" means Secured Debt, as defined in the
Security Agreement.
"SECURED PARTIES" means the Agents, the Collateral Agent, the
Lender Parties, and each other secured party specified in the
Collateral Documents.
"SECURITY AGREEMENT" means the Amended and Restated Security
Agreement dated as of July 9, 2003, by and among the Borrower, each of
the other Grantors party thereto and the Collateral Agent, as amended,
supplemented or otherwise modified from time to time.
"SENIOR FACILITY" means the Facilities hereunder, excluding
any Incremental Revolving Credit Commitment.
"SENIOR NOTES" has the meaning specified in the Collateral
Agent Agreement.
"SINGLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and no Person other
than the Loan Parties and the ERISA Affiliates or (b) was so maintained
and in respect of which any Loan Party or any ERISA Affiliate could
have liability under Section 4069 of ERISA in the event such plan has
been or were to be terminated.
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on a
particular date, that as of such date (a) the fair value of the
property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of
such Person, (b) the present fair salable value of the assets of such
Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute
and matured, (c) such Person does not intend to, and does not believe
that it will, incur debts or liabilities beyond such Person's ability
to pay such debts and liabilities as they mature and (d) such Person is
not engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would
constitute an unreasonably small capital. 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.
"S&P" means Standard & Poor's, a division of the McGraw Hill
Companies, Inc.
34
"SPECIFIED DEDUCTIONS" means, collectively, Reserve
Deductions, and Miscellaneous Deductions.
"SPECIFIED LIQUIDITY AMOUNT" means, on any date, Available
Liquidity in an amount not less than $50 million.
"STANDBY LETTER OF CREDIT" means any Letter of Credit issued
under the Letter of Credit Facility, other than a Trade Letter of
Credit.
"SUBORDINATED DEBT" means any Debt of any Loan Party that is
(i) subordinated to the Obligations of such Loan Party under the Loan
Documents (ii) or permitted by Section 5.02(b)(iii)(J).
"SUBORDINATED DEBT DOCUMENTS" means all agreements, indentures
and instruments pursuant to which Subordinated Debt is issued, in each
case as amended, to the extent permitted under the Loan Documents.
"SUBSIDIARY" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such partnership, joint
venture or limited liability company or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
Notwithstanding anything to the contrary in the foregoing, the term
"Subsidiary" shall not include any Non-Recourse Subsidiary.
"SUBSIDIARY GUARANTORS" means the Subsidiaries of the Borrower
listed on Schedule II hereto and each other Subsidiary of the Borrower
that shall be required to execute and deliver a guaranty pursuant to
Section 5.01(j).
"SUBSIDIARY GUARANTY" means the guaranty by the Subsidiary
Guarantors dated as of July 9, 2003, in each case as amended, amended
and restated, modified or otherwise supplemented.
"SUPER MAJORITY LENDERS" means, at any time, Lenders owed or
holding at least 66 2/3% in interest of the sum of (a) the aggregate
principal amount of the Advances outstanding at such time, (b) the
aggregate Available Amount of all Letters of Credit outstanding at such
time, and (c) the aggregate Unused Revolving Credit Commitments at such
time; provided, however, that if any Lender shall be a Defaulting
Lender at such time, there shall be excluded from the determination of
Super Majority Lenders at such time (i) the aggregate principal amount
of the Advances owing to such Lender (in its capacity as a Lender) and
outstanding at such time, (ii) such Lender's Pro Rata Share of the
aggregate Available Amount of all Letters of Credit outstanding at such
time, and (iii) the Unused Revolving Credit Commitment of such Lender
at such time. For purposes of this definition, the aggregate principal
amount of Swing Line Advances owing to the Swing Line Bank and of
35
Letter of Credit Advances owing to the Issuing Bank and the Available
Amount of each Letter of Credit shall be considered to be owed to the
Lenders ratably in accordance with their respective Revolving Credit
Commitments.
"SUPPLEMENTAL COLLATERAL MONITORING AGENT" has the meaning
specified in Section 7.07 and "Supplemental Collateral Monitoring
Agents" shall have the corresponding meaning.
"SURVIVING DEBT" means Debt of each Loan Party and its
Subsidiaries outstanding immediately before and after the Effective
Date.
"SWING LINE ADVANCE" means an advance made by (a) the Swing
Line Bank pursuant to Section 2.01(c) or (b) any Lender pursuant to
Section 2.02(b).
"SWING LINE BANK" means the Initial Swing Line Bank and any
Eligible Assignee to which the Swing Line Commitment hereunder has been
assigned pursuant to Section 8.07 so long as such Eligible Assignee
expressly agrees to perform in accordance with their terms all
obligations that by the terms of this Agreement are required to be
performed by it as a Swing Line Bank and notifies the Administrative
Agent of its Applicable Lending Office and the amount of its Swing Line
Commitment (which information shall be recorded by the Administrative
Agent in the Register), for so long as such Initial Swing Line Bank or
Eligible Assignee, as the case may be, shall have a Swing Line
Commitment.
"SWING LINE BORROWING" means a borrowing consisting of a Swing
Line Advance made by the Swing Line Bank pursuant to Section 2.01(c) or
the Lenders pursuant to Section 2.02(b).
"SWING LINE COMMITMENT" means, with respect to the Swing Line
Bank at any time, the amount set forth opposite the Swing Line Bank's
name on Schedule I hereto under the caption "Swing Line Commitment" or,
if the Swing Line Bank has entered into an Assignment and Acceptance,
set forth for the Swing Line Bank in the Register maintained by the
Administrative Agent pursuant to Section 8.07(d) as the Swing Line
Bank's "Swing Line Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.05.
"SWING LINE FACILITY" means, at any time, an amount equal to
the amount of the Swing Line Bank's Swing Line Commitment at such time,
as such amount may be reduced at or prior to such time pursuant to
Section 2.05.
"TAX AGREEMENT" means the Tax Sharing Agreement dated as of
January 31, 1994, by and among the Borrower, GAF Corporation (a
predecessor-in-interest to G-I Holdings), as amended as of March 19,
2001, and as further amended to the extent permitted under the Loan
Documents.
"TAXES" has the meaning specified in Section 2.12(a).
36
"TERMINATION DATE" means the earliest of (a) the fifth
anniversary of the Effective Date, and (b) the date of termination in
whole of the Revolving Credit Commitments, the Letter of Credit
Commitment and the Swing Line Commitment, pursuant to Section 2.05 or
6.01.
"TRADE LETTER OF CREDIT" means any Letter of Credit that is
issued under the Letter of Credit Facility for the benefit of a
supplier of Inventory to the Borrower or any of its Subsidiaries to
effect payment for such Inventory.
"TRANSACTION DOCUMENTS" means, collectively, the Loan
Documents and the Tax Agreement.
"TRANSACTIONS" means, collectively, the Intended Use
Transactions and the other transactions contemplated in the Loan
Documents.
"2001 LONG TERM INCENTIVE PLAN" means that certain incentive
compensation plan known as the Building Materials Corporation of
America 2001 Long Term Incentive Plan, effective as of December 31,
2000, pursuant to which the Borrower grants Incentive Units (as defined
therein) to eligible employees of the Borrower and its subsidiaries.
"2007 NOTES" has the meaning specified in the Preliminary
Statements.
"2008 NOTES" has the meaning specified in the Preliminary
Statements.
"2014 NOTES" has the meaning specified in the Preliminary
Statements.
"TYPE" refers to the distinction between Advances bearing
interest at the Base Rate and Advances bearing interest at the
Eurodollar Rate.
"UNUSED REVOLVING CREDIT COMMITMENT" means, with respect to
any Lender at any time, (a) such Lender's Revolving Credit Commitment
at such time minus (b) the sum of (i) the aggregate principal amount of
all Revolving Credit Advances, Swing Line Advances and Letter of Credit
Advances made by such Lender (in its capacity as a Lender) and
outstanding at such time plus (ii) such Lender's Pro Rata Share of (A)
the aggregate Available Amount of all Letters of Credit outstanding at
such time, (B) the aggregate principal amount of all Letter of Credit
Advances made by the Issuing Bank pursuant to Section 2.03(c) and
outstanding at such time and (C) the aggregate principal amount of all
Swing Line Advances made by the Swing Line Bank pursuant to Section
2.01(c) and outstanding at such time.
"VOTING INTERESTS" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing
similar functions) of such Person, even if the right so to vote has
been suspended by the happening of such a contingency.
"WARRANTY RESERVE" means a reserve established by the
Administrative Agent in its reasonable discretion against the principal
balance of Receivables of the Loan Parties which represents 60 days of
37
average warranty claims, as determined by the Administrative Agent in
connection with its quarterly review.
"WELFARE PLAN" means a welfare plan, as defined in Section
3(1) of ERISA, that is maintained for employees of any Loan Party or in
respect of which any Loan Party could have liability.
"WITHDRAWAL LIABILITY" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods; Other Definitional
Provisions. In this Agreement and the other Loan Documents in the computation of
periods of time from a specified date to a later specified date, the word "FROM"
means "from and including" and the words "TO" and "UNTIL" each mean "to but
excluding". References in the Loan Documents to any agreement or contract "AS
AMENDED" shall mean and be a reference to such agreement or contract as amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with its terms.
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(g) ("GAAP").
SECTION 1.04. Currency Equivalents Generally. Any amount specified in
this Agreement (other than in Articles II, VII and VIII) or any of the other
Loan Documents to be in U.S. dollars shall also include the equivalent of such
amount in any currency other than U.S. dollars, such equivalent amount to be
determined at the rate of exchange quoted by Citibank, N.A. in New York, New
York at the close of business on the Business Day immediately preceding any date
of determination thereof, to prime banks in New York, New York for the spot
purchase in the New York foreign exchange market of such amount in U.S. dollars
with such other currency.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit. (a) Advances and
Commitments Under Existing Credit Agreement; Assignments. On the Effective Date,
all Commitments made and Advances outstanding under the Existing Credit
Agreement shall be consolidated and, from and after the Effective Date, shall be
outstanding under this Agreement, with appropriate assignments of all rights and
obligations of Lender Parties under the Existing Credit Agreement in respect of
such Commitments and Advances outstanding under the Existing Credit Agreement
being made on the Effective Date from the holders thereof to the Initial Lender
Parties under this Agreement so that the Revolving Credit Commitment of each
Lender under this Agreement will be as set forth on Schedule I to this Agreement
with a Pro Rata Share of the outstanding Revolving Credit Advances under this
Agreement.
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(b) The Revolving Credit Advances. Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make advances
(each a "REVOLVING CREDIT ADVANCE") to the Borrower from time to time on any
Business Day during the period from the Effective Date until the Termination
Date in an amount for each such Advance not to exceed such Lender's Unused
Revolving Credit Commitment at such time. Each Revolving Credit Borrowing shall
be in an aggregate amount of $5 million or an integral multiple of $1 million in
excess thereof (other than a Borrowing the proceeds of which shall be used
solely to repay or prepay in full outstanding Swing Line Advances or outstanding
Letter of Credit Advances in accordance with the terms hereof) and shall consist
of Revolving Credit Advances made simultaneously by the Lenders ratably
according to their Revolving Credit Commitments. Within the limits of each
Lender's Unused Revolving Credit Commitment in effect from time to time, the
Borrower may borrow under this Section 2.01(b), prepay pursuant to Section
2.06(a) and reborrow under this Section 2.01(b).
(c) The Swing Line Advances. The Swing Line Bank agrees on the
terms and conditions hereinafter set forth, to make Swing Line Advances to the
Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date (i) in an aggregate amount not to
exceed at any time outstanding the Swing Line Commitment (the "SWING LINE
FACILITY") and (ii) in an amount for each such Swing Line Borrowing not to
exceed the aggregate of the Unused Revolving Credit Commitments of the Lenders
at such time. No Swing Line Advance shall be used for the purpose of funding the
payment of principal of any other Swing Line Advance. Each Swing Line Borrowing
shall be made as a Base Rate Advance. Within the limits of the Swing Line
Facility and within the limits referred to in clause (ii) above, the Borrower
may borrow under this Section 2.01(c), repay pursuant to Section 2.04(c) or
prepay pursuant to Section 2.06(a) and reborrow under this Section 2.01(c).
(d) The Letters of Credit. Prior to the Effective Date, the
Issuing Bank has issued the Existing Letters of Credit, which, from and after
the Effective Date, shall constitute Letters of Credit hereunder. The Issuing
Bank agrees, on the terms and conditions hereinafter set forth, to issue (or
cause its Affiliate that is a commercial bank to issue on its behalf) letters of
credit (the letters of credit issued on or after the Effective Date pursuant to
this Agreement, together with the Existing Letters of Credit, collectively, the
"LETTERS OF CREDIT") in U.S. Dollars for the account of the Borrower or, subject
to the second proviso in this sentence below, for the benefit of G-I Holdings
from time to time on any Business Day during the period from the Effective Date
until 30 days before the Termination Date in respect of the Revolving Credit
Facility in an aggregate Available Amount (i) for all Letters of Credit not to
exceed at any time the Issuing Bank's Letter of Credit Commitment at such time
and (ii) for each such Letter of Credit not to exceed the Unused Revolving
Credit Commitments of the Lenders at such time; provided, however, that in no
event shall the aggregate Available Amount for all Letters of Credit exceed $100
million; and provided, further, however, that the issuance of any Future G-I
Letter of Credit, and the renewal of any Future G-I Letter of Credit which
increases the stated amount of such Future G-I Letter of Credit, shall be
subject to compliance with Section 5.02(g). No Letter of Credit shall have an
expiration date (including all rights of the Borrower or the beneficiary to
require renewal) later than the date agreed to by the Issuing Bank and the
Borrower in respect of such Letter of Credit and (A) in the case of a Standby
Letter of Credit, shall not have an expiration date later than one year after
the date of issuance thereof, but may by its terms be renewable annually upon
notice (a "NOTICE OF RENEWAL") given to the Issuing Bank and the Administrative
Agent on or prior to any date for notice of renewal set forth in such Letter of
39
Credit but in any event at least three Business Days prior to the date of the
proposed renewal of such Standby Letter of Credit and upon fulfillment of the
applicable conditions set forth in Article III unless the Issuing Bank has
notified the Borrower (with a copy to the Administrative Agent) on or prior to
the date for notice of termination set forth in such Letter of Credit but in any
event at least 30 Business Days prior to the date of automatic renewal of its
election not to renew such Standby Letter of Credit (a "NOTICE OF TERMINATION")
and (B) in the case of a Trade Letter of Credit, shall not have an expiration
date later than 60 days after the date of issuance thereof; provided that the
terms of each Standby Letter of Credit that is automatically renewable annually
shall (x) require the Issuing Bank that issued such Standby Letter of Credit to
give the beneficiary named in such Standby Letter of Credit notice of any Notice
of Termination, (y) permit such beneficiary, upon receipt of such notice, to
draw under such Standby Letter of Credit prior to the date such Standby Letter
of Credit otherwise would have been automatically renewed and (z) not permit the
expiration date (after giving effect to any renewal) of such Standby Letter of
Credit in any event to be extended to a date later than 60 days before the
Termination Date. If either a Notice of Renewal is not given by the Borrower or
a Notice of Termination is given by the Issuing Bank pursuant to the immediately
preceding sentence, such Standby Letter of Credit shall expire on the date on
which it otherwise would have been automatically renewed; provided, however,
that even in the absence of receipt of a Notice of Renewal the Issuing Bank may
in its discretion, unless instructed to the contrary by the Administrative Agent
or the Borrower, deem that a Notice of Renewal had been timely delivered and in
such case, a Notice of Renewal shall be deemed to have been so delivered for all
purposes under this Agreement. Within the limits of the Letter of Credit
Facility, and subject to the limits referred to above, the Borrower may request
the issuance of Letters of Credit under this Section 2.01(d), repay any Letter
of Credit Advances resulting from drawings thereunder pursuant to Section
2.03(c) and request the issuance of additional Letters of Credit under this
Section 2.01(d). The Borrower agrees that, on or prior to the fourteenth day
before the Termination Date, the Borrower shall deposit (on terms and conditions
reasonably satisfactory to the Issuing Bank) in a collateral account designated
by the Issuing Bank an amount equal to 103% of the aggregate Available Amount of
all Letters of Credit then outstanding which have an expiration date later than
the Termination Date.
SECTION 2.02. Making the Advances. (a) Except as otherwise provided in
Section 2.02(b) or 2.03, each Borrowing shall be made on notice, given not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed Borrowing in the case of a Borrowing consisting of Eurodollar
Rate Advances, or the first Business Day prior to the date of the proposed
Borrowing in the case of a Borrowing consisting of Base Rate Advances, by the
Borrower to the Administrative Agent, which shall give to each Lender prompt
notice thereof by telex or telecopier. Each such notice of a Borrowing (a
"NOTICE OF BORROWING") shall be by telephone, confirmed immediately in writing,
or by telex or telecopier, in substantially the form of Exhibit B hereto,
specifying therein the requested (i) date of such Borrowing, (ii) Type of
Advances comprising such Borrowing, (iii) aggregate amount of such Borrowing and
(iv) in the case of a Borrowing consisting of Eurodollar Rate Advances, initial
Interest Period for each such Advance. Each Lender shall, before 11:00 A.M. (New
York City time) on the date of such Borrowing, make available for the account of
its Applicable Lending Office to the Administrative Agent at the Administrative
Agent's Account, in same day funds, such Lender's ratable portion of such
Borrowing in accordance with the respective Revolving Credit Commitments of such
40
Lender and the other Lenders. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the Borrower by
crediting the Borrower's Account; provided, however, that, in the case of any
Revolving Credit Borrowing, the Administrative Agent shall first make a portion
of such funds equal to the aggregate principal amount of any Swing Line Advances
and Letter of Credit Advances made by the Swing Line Bank or the Issuing Bank,
as the case may be, and by any other Lender and outstanding on the date of such
Revolving Credit Borrowing, plus interest accrued and unpaid thereon to and as
of such date, available to the Swing Line Bank or the Issuing Bank, as the case
may be, and such other Lenders for repayment of such Swing Line Advances and
Letter of Credit Advances.
(b) Each Swing Line Borrowing shall be made on notice, given
not later than 11:00 A.M. (New York City time) on the date of the proposed Swing
Line Borrowing, by the Borrower to the Swing Line Bank and the Administrative
Agent. Each such notice of a Swing Line Borrowing (a "NOTICE OF SWING LINE
BORROWING") shall be by telephone, confirmed immediately in writing, or by telex
or telecopier, specifying therein the requested (i) date of such Borrowing, (ii)
amount of such Borrowing and (iii) maturity of such Borrowing (which maturity
shall be no later than the seventh day after the requested date of such
Borrowing). The Swing Line Bank will make the amount of the requested Swing Line
Advances available to the Administrative Agent at the Administrative Agent's
Account, in same day funds. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the Borrower by
crediting the Borrower's Account. Upon written demand by the Swing Line Bank,
with a copy of such demand to the Administrative Agent, each other Lender shall
purchase from the Swing Line Bank, and the Swing Line Bank shall sell and assign
to each such other Lender, such other Lender's Pro Rata Share of such
outstanding Swing Line Advance as of the date of such demand, by making
available for the account of its Applicable Lending Office to the Administrative
Agent for the account of the Swing Line Bank, by deposit to the Administrative
Agent's Account, in same day funds, an amount equal to the portion of the
outstanding principal amount of such Swing Line Advance to be purchased by such
Lender. The Borrower hereby agrees to each such sale and assignment. Each Lender
agrees to purchase its Pro Rata Share of an outstanding Swing Line Advance on
(i) the Business Day on which demand therefor is made by the Swing Line Bank,
provided that notice of such demand is given not later than 11:00 A.M. (New York
City time) on such Business Day or (ii) the first Business Day next succeeding
such demand if notice of such demand is given after such time. Upon any such
assignment by the Swing Line Bank to any other Lender of a portion of a Swing
Line Advance, the Swing Line Bank represents and warrants to such other Lender
that the Swing Line Bank is the legal and beneficial owner of such interest
being assigned by it, but makes no other representation or warranty and assumes
no responsibility with respect to such Swing Line Advance, the Loan Documents or
any Loan Party. If and to the extent that any Lender shall not have so made the
amount of such Swing Line Advance available to the Administrative Agent, such
Lender agrees to pay to the Administrative Agent forthwith on demand such amount
together with interest thereon, for each day from the date of demand by the
Swing Line Bank until the date such amount is paid to the Administrative Agent,
at the Federal Funds Rate. If such Lender shall pay to the Administrative Agent
such amount for the account of the Swing Line Bank on any Business Day, such
amount so paid in respect of principal shall constitute a Swing Line Advance
made by such Lender on such Business Day for purposes of this Agreement, and the
41
outstanding principal amount of the Swing Line Advance made by the Swing Line
Bank shall be reduced by such amount on such Business Day.
(c) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
the initial Borrowing hereunder or for any Borrowing if the aggregate amount of
such Borrowing is less than $5 million or if the obligation of the Lenders to
make Eurodollar Rate Advances shall then be suspended pursuant to Section 2.09
or 2.10 and (ii) the Revolving Credit Advances may not be outstanding as part of
more than eight separate Borrowings.
(d) Each Notice of Borrowing and each Notice of Swing Line
Borrowing shall be irrevocable and binding on the Borrower. In the case of any
Borrowing that the related Notice of Borrowing specifies is to be comprised of
Eurodollar Rate Advances, the Borrower shall indemnify each Lender against any
loss, cost or expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in such Notice of Borrowing for such
Borrowing the applicable conditions set forth in Article III, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Advance to be made by such Lender as part of
such Borrowing when such Advance, as a result of such failure, is not made on
such date.
(e) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Administrative Agent, such
Lender and the Borrower severally agree to repay or pay to the Administrative
Agent forthwith on demand such corresponding amount and to pay interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid or paid to the Administrative Agent, at (i) in
the case of the Borrower, the interest rate applicable at such time under
Section 2.07 to Advances comprising such Borrowing and (ii) in the case of such
Lender, the Federal Funds Rate. If such Lender shall pay to the Administrative
Agent such corresponding amount, such amount so paid shall constitute such
Lender's Advance as part of such Borrowing for all purposes.
(f) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters
of Credit. (a) Request for Issuance. Each Letter of Credit shall be issued upon
notice, given not later than 11:00 A.M. (New York City time) on the fourth
Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the Borrower to the Issuing Bank, which shall give to the
42
Administrative Agent and each Lender prompt notice thereof by telecopier or
electronic communication. Each such notice of issuance of a Letter of Credit (a
"NOTICE OF ISSUANCE") shall be by telephone, confirmed immediately in writing,
or telecopier electronic communication, specifying therein the requested (A)
date of such issuance (which shall be a Business Day), (B) Available Amount of
such Letter of Credit, (C) expiration date of such Letter of Credit, (D) name
and address of the beneficiary of such Letter of Credit and (E) form of such
Letter of Credit, and shall be accompanied by such application and agreement for
letter of credit as the Issuing Bank may specify to the Borrower for use in
connection with such requested Letter of Credit (a "LETTER OF CREDIT
AGREEMENT"). If (x) the requested form of such Letter of Credit is acceptable to
the Issuing Bank in its sole discretion exercised reasonably and (y) it has not
received notice of objection to such issuance from the Required Lenders, the
Issuing Bank will, upon fulfillment of the applicable conditions set forth in
Article III, make such Letter of Credit available to the Borrower at its office
referred to in Section 8.02 or as otherwise agreed with the Borrower in
connection with such issuance. In the event and to the extent that the
provisions of any Letter of Credit Agreement shall conflict with this Agreement,
the provisions of this Agreement shall govern.
(b) Letter of Credit Reports. The Issuing Bank shall furnish
(i) to the Administrative Agent, the Borrower and each Lender on the first
Business Day of each month a written report summarizing issuance and expiration
dates of Letters of Credit issued during the preceding month and drawings during
such month under all Letters of Credit and, (ii) to the Administrative Agent and
each Lender on the first Business Day of each calendar quarter a written report
setting forth the average daily aggregate Available Amount during the preceding
calendar quarter of all Letters of Credit.
(c) Participations in Letters of Credit. Upon the issuance of
a Letter of Credit by the Issuing Bank under Section 2.03(a), the Issuing Bank
shall be deemed, without further action by any party hereto, to have sold to
each Lender, and each such Lender shall be deemed, without further action by any
party hereto, to have purchased from the Issuing Bank, a participation in such
Letter of Credit in an amount for each Lender equal to such Lender's Pro Rata
Share of the Available Amount of such Letter of Credit, effective upon the
issuance of such Letter of Credit. In consideration and in furtherance of the
foregoing, each Lender hereby absolutely and unconditionally agrees to pay such
Lender's Pro Rata Share of each L/C Disbursement made by the Issuing Bank and
not reimbursed by the Borrower forthwith on the date due as provided in Section
2.04(d) by making available for the account of its Applicable Lending Office to
the Administrative Agent for the account of the Issuing Bank by deposit to the
Administrative Agent's Account, in same day funds, an amount equal to such
Lender's Pro Rata Share of such L/C Disbursement. Each Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this Section
2.03(c) in respect of Letters of Credit is absolute and unconditional and shall
not be affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or an Event of Default or the termination of the
Commitments, and that each such payment shall be made without any off-set,
abatement, withholding or reduction whatsoever. If and to the extent that any
Lender shall not have so made the amount of such L/C Disbursement available to
the Administrative Agent, such Lender agrees to pay to the Administrative Agent
forthwith on demand such amount together with interest thereon, for each day
from the date such L/C Disbursement is due pursuant to Section 2.04(b) until the
date such amount is paid to the Administrative Agent, at the Federal Funds Rate
for its account or the account of the Issuing Bank, as applicable. If such
43
Lender shall pay to the Administrative Agent such amount for the account of the
Issuing Bank on any Business Day, such amount so paid in respect of principal
shall constitute a Letter of Credit Advance made by such Lender on such Business
Day for purposes of this Agreement, and the outstanding principal amount of the
Letter of Credit Advance made by the Issuing Bank shall be reduced by such
amount on such Business Day.
(d) Drawing and Reimbursement. The payment by the Issuing Bank
of a draft drawn under any Letter of Credit shall constitute for all purposes of
this Agreement the making by the Issuing Bank of a Letter of Credit Advance,
which shall be a Base Rate Advance, in the amount of such draft.
(e) Failure to Make Letter of Credit Advances. The failure of
any Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
SECTION 2.04. Repayment of Advances. (a) Daily Repayments Upon Default.
On each Business Day after the occurrence and during the continuance of a
Default, the Administrative Agent shall apply all amounts on deposit in the Cash
Collateral Account first, to the prepayment of the L/C Advances then outstanding
until such Advances are paid in full, second to the prepayment of the Swing Line
Advances then outstanding until such Advances are paid in full, third to the
prepayment of the Revolving Credit Advances until such Advances are paid in full
and fourth to be deposited in the L/C Collateral Account to cash collateralize
103% of the Available Amount of the Letters of Credit then outstanding.
(b) Revolving Credit Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Lenders on the Termination
Date the aggregate principal amount of the Revolving Credit Advances then
outstanding.
(c) Swing Line Advances. The Borrower shall repay to the
Administrative Agent for the account of the Swing Line Bank and each other
Lender that has made a Swing Line Advance the outstanding principal amount of
each Swing Line Advance made by each of them on the earlier of the maturity date
specified in the applicable Notice of Swing Line Borrowing (which maturity shall
be no later than the seventh day after the requested date of such Borrowing) and
the Termination Date.
(d) Letter of Credit Advances. (i) The Borrower shall repay to
the Administrative Agent for the account of the Issuing Bank and each other
Lender that has made a Letter of Credit Advance on the earlier of demand
(accompanied by written notice from the Issuing Bank that a payment has been
made under such Letter of Credit) and the Termination Date the outstanding
principal amount of each Letter of Credit Advance made by each of them.
(ii) The Obligations of the Borrower under this Agreement, any
Letter of Credit Agreement and any other agreement or instrument relating to any
Letter of Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, such Letter of Credit
44
Agreement and such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances (it being understood
that any such payment by the Borrower is without prejudice to, and does not
constitute a waiver of, any rights the Borrower might have or might acquire as a
result of the payment by the Issuing Bank of any draft or the reimbursement by
the Borrower thereof):
(A) any lack of validity or enforceability of any Loan
Document, any Letter of Credit Agreement, any Letter of Credit or any
other agreement or instrument relating thereto (all of the foregoing
being, collectively, the "L/C RELATED DOCUMENTS");
(B) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of the Borrower in
respect of any L/C Related Document or any other amendment or waiver of
or any consent to departure from all or any of the L/C Related
Documents;
(C) the existence of any claim, set-off, defense or other
right that the Borrower may have at any time against any beneficiary or
any transferee of a Letter of Credit (or any Persons for which any such
beneficiary or any such transferee may be acting), the Issuing Bank or
any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;
(D) any statement or any other document presented under a
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;
(E) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft, certificate or other document that
does not strictly comply with the terms of such Letter of Credit;
(F) any non-perfection of any Collateral or any release or
amendment or waiver of or consent to departure from the Subsidiary
Guaranty for all or any of the Obligations of the Borrower in respect
of the L/C Related Documents; or
(G) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including, without limitation, any
other circumstance that might otherwise constitute a defense available
to, or a discharge of, the Borrower or a Subsidiary Guarantor.
SECTION 2.05. Termination or Reduction of the Commitments. (a)
Optional. The Borrower may, upon at least three Business Days' notice to the
Administrative Agent, and without premium or penalty, terminate in whole or
reduce in part the unused portions of the Letter of Credit Facility and/or the
Unused Revolving Credit Commitments; provided, however, that each partial
reduction of a Facility (i) shall be in an aggregate amount of $5 million or an
integral multiple of $1 million in excess thereof and (ii) shall be made ratably
among the Lenders in accordance with their Commitments with respect to such
Facility.
(b) Mandatory. (i) The Letter of Credit Facility shall be
permanently reduced from time to time on the date of each reduction in the
Revolving Credit Facility by the amount, if any, by which the amount of the
45
Letter of Credit Facility exceeds the Revolving Credit Facility after giving
effect to such reduction of the Revolving Credit Facility.
(ii) The Swing Line Facility shall be permanently reduced from
time to time on the date of each reduction in the Revolving Credit Facility by
the amount, if any, by which the amount of the Swing Line Facility exceeds the
Revolving Credit Facility after giving effect to such reduction of the Revolving
Credit Facility.
SECTION 2.06. Prepayments. (a) Optional. The Borrower may, upon at
least one Business Day's notice in the case of Base Rate Advances and three
Business Days' notice in the case of Eurodollar Rate Advances, in each case to
the Administrative Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given the Borrower shall, prepay
the outstanding aggregate principal amount of the Advances comprising part of
the same Borrowing in whole or ratably in part, together with accrued interest
to the date of such prepayment on the aggregate principal amount so prepaid;
provided, however, that (x) each partial prepayment shall be in an aggregate
principal amount of $5 million or an integral multiple of $1 million in excess
thereof and (y) if any prepayment of a Eurodollar Rate Advance is made on a date
other than the last day of an Interest Period for such Advance, the Borrower
shall also pay any amounts owing pursuant to Section 8.04(d).
(b) Mandatory. (i) The Borrower shall, on the applicable
Prepayment Date with respect to Net Cash Proceeds by any Loan Party from (A) the
sale, lease, transfer or other disposition including, without limitation, any
and all involuntary dispositions, whether by condemnation, casualty loss or
otherwise, of any assets of any Loan Party or any of its Subsidiaries (other
than any sale, lease, transfer or other disposition of assets referred to in
clause (i), (ii) or (iii) of the definition of Certain Permitted Dispositions),
(B) the incurrence or issuance by any Loan Party or any of its Subsidiaries of
any Debt (other than Debt incurred or issued pursuant to Section 5.02(b)), (C)
the sale or issuance by any Loan Party or any of its Subsidiaries of any Equity
Interests and (D) any Extraordinary Receipt received by or paid to or for the
account of any Loan Party or any of its Subsidiaries and not otherwise included
in clause (A), (B) or (C) above, prepay an aggregate principal amount of the
Advances comprising part of the same Borrowings (with application to be made in
accordance with clause (iv) of this Section 2.06(b)), in an aggregate amount
equal to the amount of such Net Cash Proceeds. Each such prepayment shall be
applied to the Revolving Credit Facility as set forth in clause (iv) below. For
the avoidance of doubt, mandatory prepayments shall not permanently reduce the
Commitments.
(ii) The Borrower shall, on each Business Day, prepay an
aggregate principal amount of the Revolving Credit Advances comprising part of
the same Borrowings, the Letter of Credit Advances and the Swing Line Advances
(with application to be made in accordance with clause (iv) of this Section
2.06(b)) in an amount equal to the amount by which (A) the sum of (I) the
aggregate principal amount of (x) the Revolving Credit Advances, (y) the Letter
of Credit Advances and (z) the Swing Line Advances then outstanding plus (II)
the aggregate Available Amount of all Letters of Credit then outstanding,
exceeds (B) the lesser of the Revolving Credit Facility and the Loan Value on
such Business Day.
46
(iii) The Borrower shall, on each Business Day, pay to the
Administrative Agent for deposit in the L/C Collateral Account an amount
sufficient to cause the aggregate amount on deposit in the L/C Collateral
Account to equal the amount by which the aggregate Available Amount of all
Letters of Credit then outstanding exceeds the Letter of Credit Facility on such
Business Day.
(iv) Prepayments of the Revolving Credit Facility made
pursuant to clause (i), (ii), or (iii) above shall be first applied to prepay
Letter of Credit Advances then outstanding until such Advances are paid in full,
second applied to prepay Swing Line Advances then outstanding until such
Advances are paid in full, and third applied to prepay Revolving Credit Advances
then outstanding comprising part of the same Borrowings until such Advances are
paid in full; and, in the case of prepayments of the Revolving Credit Facility
required pursuant to clause (i) or (ii) above, the amount remaining (if any)
after the prepayment in full of the Advances then outstanding (the sum of such
prepayment amounts in respect of Revolving Credit Advances, Letter of Credit
Advances and Swing Line Advances, and remaining amount being referred to herein
as the "REDUCTION AMOUNT") may be retained by the Borrower. Upon the drawing of
any Letter of Credit for which funds are on deposit in the L/C Collateral
Account, such funds shall be applied to reimburse the Issuing Bank or Lenders,
as applicable.
(v) All prepayments under this subsection (b) shall be made
together with accrued interest to the date of such prepayment on the principal
amount prepaid, together with any amounts owing pursuant to Section 8.04. If any
payment of Eurodollar Rate Advances otherwise required to be made under this
Section 2.06(b) would be made on a day other than the last day of the applicable
Interest Period therefor, the Borrower may direct the Administrative Agent to
(and if so directed, the Administrative Agent shall) deposit such payment in the
Collateral Account until the last day of the applicable Interest Period at which
time the Administrative Agent shall apply the amount of such payment to the
prepayment of such Advances; provided, however, that such Advances shall
continue to bear interest as set forth in Section 2.07 until the last day of the
applicable Interest Period therefor.
SECTION 2.07. Interest. (a) Scheduled Interest. The Borrower shall pay
interest on the unpaid principal amount of each Advance owing to each Lender
from the date of such Advance until such principal amount shall be paid in full,
at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is
a Base Rate Advance, a rate per annum equal at all times to the Base
Rate in effect from time to time, payable in arrears monthly on the
first day of each month during such periods and on the date such Base
Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (A)
the Eurodollar Rate for such Interest Period for such Advance plus (B)
the Applicable Margin, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more
than three months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period and on
the date such Eurodollar Rate Advance shall be Converted or paid in
full.
47
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default, the Administrative Agent may, and upon the
request of the Required Lenders shall, require that the Borrower pay interest
("DEFAULT Interest") on (i) the outstanding and unpaid principal amount of each
Advance owing to each Lender Party, payable in arrears on the dates referred to
in clause (i) or (ii) of Section 2.07(a), as applicable, or otherwise on demand,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Advance pursuant to clause (i) or (ii) of Section
2.07(a), as applicable, and (ii) to the fullest extent permitted by applicable
law, the amount of any interest, fee or other amount payable under this
Agreement or any other Loan Document to any Agent or any Lender Party that is
not paid when due, from the date such amount shall be due until such amount
shall be paid in full, payable in arrears on the date such amount shall be paid
in full or otherwise on demand, at a rate per annum equal at all times to 2% per
annum above the rate per annum required to be paid, in the case of interest, on
the Type of Advance on which such interest has accrued pursuant to clause (i) or
(ii) of Section 2.07(a), as applicable, and, in all other cases, on Base Rate
Advances pursuant to clause (i) of Section 2.07(a); provided, however, that
following the acceleration of the Advances, or the giving of notice by the Agent
to accelerate the Advances that has not been revoked or rescinded, pursuant to
Section 6.01, Default Interest shall accrue and be payable hereunder whether or
not previously required by the Administrative Agent.
(c) Notice of Interest Period and Interest Rate. Promptly
after receipt of a Notice of Borrowing pursuant to Section 2.02(a), a notice of
Conversion pursuant to Section 2.09 or a notice of selection of an Interest
Period pursuant to the terms of the definition of "Interest Period", the
Administrative Agent shall give notice to the Borrower and each Lender of the
applicable Interest Period and the applicable interest rate determined by the
Administrative Agent for purposes of clause (a)(i) or (a)(ii) above.
SECTION 2.08. Fees. (a) Commitment Fee. The Borrower shall pay to the
Administrative Agent for the account of the Lenders a commitment fee, from the
date hereof in the case of each Initial Lender and from the effective date
specified in the Assignment and Acceptance pursuant to which it became a Lender
in the case of each other Lender until the Termination Date, payable in arrears
monthly on the first day of each month (or if such day is not a Business Day, on
the next succeeding Business Day), commencing on the first Business Day of the
first month commencing after the Effective Date, and on the Termination Date in
respect of the applicable Facility, at the rate per annum, on the sum of the
daily Unused Revolving Credit Commitment of such Lender plus its Pro Rata Share
of the daily outstanding Swing Line Advances during such month, of (i) for an
initial period commencing on the Effective Date and ending on the date which is
the last day of the Borrower's first full fiscal quarter following the Effective
Date, 0.30%, and (ii) as of any date thereafter, a rate per annum equal to the
rate set forth below opposite the then applicable Leverage Ratio (determined on
the last day for which financial statements and other information have been
delivered pursuant to Section 5.03(b) or (c)):
Leverage Ratio: Rate:
--------------- ----
Equal to or less than 2.50 to 1. 0.250%
Greater than 2.50 to 1 and less
than or equal to 4.25 to 1. 0.300%
Greater than 4.25 to 1. 0.375%
48
provided, however, that any commitment fee accrued with respect to any of the
Commitments of a Defaulting Lender during the period prior to the time such
Lender became a Defaulting Lender and unpaid at such time shall not be payable
by the Borrower so long as such Lender shall be a Defaulting Lender except to
the extent that such commitment fee shall otherwise have been due and payable by
the Borrower prior to such time; and provided further that no commitment fee
shall accrue on any of the Commitments of a Defaulting Lender so long as such
Lender shall be a Defaulting Lender.
Any change in the above commitment fee resulting from a change
in the Leverage Ratio on the last day of any subsequent fiscal quarter of the
Borrower shall become effective on the date of delivery by the Borrower to the
Administrative Agent of financial statements and other information pursuant to
Section 5.03(b) or (c), as applicable, for the period ending on the last day of
such subsequent fiscal quarter, provided, however, that the rate of such
commitment fee shall be a rate of 0.375% per annum if the Borrower has failed to
furnish to the Administrative Agent such financial statements and other
information with respect to such fiscal quarter when required under Section
5.03(b) or (c), as applicable, in each case until such financial statements and
other information have been furnished.
(b) Letter of Credit Fees, Etc. (i) The Borrower shall pay to
the Administrative Agent for the account of each Lender a commission, payable in
arrears monthly on the first day of each month (or if such day is not a Business
Day, on the next succeeding Business Day), commencing on the first Business Day
of the first calendar month commencing after the Effective Date, and on the
Termination Date in respect of the Letter of Credit Facility, on such Lender's
Pro Rata Share of the average daily aggregate stated amount during such month of
Letters of Credit outstanding from time to time at the rate of the Applicable
Margin for Eurodollar Rate Advances. Upon the occurrence and during the
continuance of an Event of Default, the amount of commission payable by the
Borrower under this clause (b)(i) shall be increased by 2% per annum.
(ii) The Borrower shall pay to the Issuing Bank, for its
own account, (A) an issuance fee for each Letter of Credit in an amount equal to
0.25% per annum of the Available Amount of such Letter of Credit on the date of
issuance of such Letter of Credit, payable in arrears monthly on the date of
issuance and on the corresponding day of the month (or if such day is not a
Business Day, on the next succeeding Business Day) of each of the immediately
succeeding months and (B) such other commissions, fronting fees, transfer fees
and other customary fees and charges in connection with the issuance or
administration of each Letter of Credit as the Borrower and the Issuing Bank
shall agree.
(c) Agents' Fees. The Borrower shall pay to each Agent for its
own account such fees as may from time to time be agreed between the Borrower
and such Agent.
SECTION 2.09. Conversion of Advances. (a) Optional. The Borrower may on
any Business Day, upon notice given to the Administrative Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
49
the proposed Conversion and subject to the provisions of Section 2.10, Convert
all or any portion of the Advances of one Type comprising the same Borrowing
into Advances of the other Type; provided, however, that any Conversion of
Eurodollar Rate Advances into Base Rate Advances shall be made only on the last
day of an Interest Period for such Eurodollar Rate Advances, any Conversion of
Base Rate Advances into Eurodollar Rate Advances shall be in an amount not less
than the minimum amount specified in Section 2.02(c), no Conversion of any
Advances shall result in more separate Borrowings than permitted under Section
2.02(c) and each Conversion of Advances comprising part of the same Borrowing
shall be made ratably among the Lenders. Each such notice of Conversion shall,
within the restrictions specified above, specify (i) the date of such
Conversion, (ii) the Advances to be Converted and (iii) if such Conversion is
into Eurodollar Rate Advances, the duration of the initial Interest Period for
such Advances. Each notice of Conversion shall be irrevocable and binding on the
Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $1 million, such
Advances shall automatically Convert into Base Rate Advances.
(ii) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders,
whereupon each such Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate Advance.
(iii) Upon the occurrence and during the continuance of any
Event of Default, (x) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance and (y) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended.
SECTION 2.10. Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change (other than any change by way of imposition or
increase of reserve requirements included in the Eurodollar Rate Reserve
Percentage) in or in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), there shall be
any increase in the cost to any Lender Party of agreeing to make or of making,
funding or maintaining Eurodollar Rate Advances or of agreeing to issue or of
issuing or maintaining or participating in Letters of Credit (excluding, for
purposes of this Section 2.10, any such increased costs resulting from (x) Taxes
or Other Taxes (as to which Section 2.12 shall govern) and (y) changes in the
basis of taxation of overall net income or overall gross income by the United
States or by the foreign jurisdiction or state under the laws of which such
Lender Party is organized or has its Applicable Lending Office or any political
subdivision thereof), then the Borrower shall from time to time, upon demand by
such Lender Party (with a copy of such demand to the Administrative Agent), pay
to the Administrative Agent for the account of such Lender Party additional
amounts sufficient to compensate such Lender Party for such increased cost;
provided, however, that the Borrower shall not be responsible for costs under
this Section 2.10(a) arising more than 120 days prior to receipt by the Borrower
of the demand from the affected Lender Party pursuant to this Section 2.10(a);
50
provided further that a Lender Party claiming additional amounts under this
Section 2.10(a) agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such a designation would avoid the
need for, or reduce the amount of, such increased cost that may thereafter
accrue and would not, in the reasonable judgment of such Lender Party, be
otherwise disadvantageous to such Lender Party. A certificate as to the amount
of such increased cost, submitted to the Borrower by such Lender Party, shall be
conclusive and binding for all purposes, absent manifest error.
(b) If, due to either (i) the introduction of or any change in
or in the interpretation of any law or regulation or (ii) the compliance with
any guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law), there shall be any increase in the
amount of capital required or expected to be maintained by any Lender Party or
any corporation controlling such Lender Party as a result of or based upon the
existence of such Lender Party's commitment to lend or to issue or participate
in Letters of Credit hereunder and other commitments of such type or the
issuance or maintenance of or participation in the Letters of Credit (or similar
contingent obligations), then, upon demand by such Lender Party or such
corporation (with a copy of such demand to the Administrative Agent), the
Borrower shall pay to the Administrative Agent for the account of such Lender
Party, from time to time as specified by such Lender Party, additional amounts
sufficient to compensate such Lender Party in the light of such circumstances,
to the extent that such Lender Party reasonably determines such increase in
capital to be allocable to the existence of such Lender Party's commitment to
lend or to issue or participate in Letters of Credit hereunder or to the
issuance or maintenance of or participation in any Letters of Credit; provided,
however, that the Borrower shall not be responsible for costs under this Section
2.10(b) arising more than 180 days prior to receipt by the Borrower of the
demand from the affected Lender Party pursuant to this Section 2.10(b). A
certificate as to such amounts submitted to the Borrower by such Lender Party
shall be conclusive and binding for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Administrative Agent that the Eurodollar Rate for
any Interest Period for such Advances will not adequately reflect the cost to
such Lenders of making, funding or maintaining their Eurodollar Rate Advances
for such Interest Period, the Administrative Agent shall forthwith so notify the
Borrower and the Lenders, whereupon (i) each such Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make,
or to Convert Advances into, Eurodollar Rate Advances shall be suspended until
the Administrative Agent shall notify the Borrower that such Lenders have
determined that the circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if
the introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other Governmental
Authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrower
through the Administrative Agent, (i) each Eurodollar Rate Advance will
automatically, upon such demand, Convert into a Base Rate Advance and (ii) the
51
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower that such Lender has determined that the circumstances causing such
suspension no longer exist; provided, however, that, before making any such
demand, such Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances and would not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender.
(e) In the event that any Lender Party demands payment of
costs or additional amounts pursuant to Section 2.10 or Section 2.12 or asserts,
pursuant to Section 2.10(d), that it is unlawful for such Lender Party to make
Eurodollar Rate Advances or becomes a Defaulting Lender then (subject to such
Lender Party's right to rescind such demand or assertion within 10 days after
the notice from the Borrower referred to below) the Borrower may, upon 20 days'
prior written notice to such Lender Party and the Administrative Agent, elect to
cause such Lender Party to assign its Advances and Commitments in full to one or
more Persons selected by the Borrower so long as (a) each such Person satisfies
the criteria of an Eligible Assignee and is reasonably satisfactory to the
Administrative Agent, (b) such Lender Party receives payment in full in cash of
the outstanding principal amount of all Advances made by it and all accrued and
unpaid interest thereon and all other amounts due and payable to such Lender
Party as of the date of such assignment (including, without limitation, amounts
owing pursuant to Sections 2.10, 2.12, 2.15 and 8.04) and (c) each such Lender
Party assignee agrees to accept such assignment and to assume all obligations of
such Lender Party assignor hereunder in accordance with Section 8.07.
SECTION 2.11. Payments and Computations. (a) The Borrower shall make
each payment hereunder and under the Notes, irrespective of any right of
counterclaim or set-off (except as otherwise provided in Section 2.15), not
later than 12:30 P.M. (New York City time) on the day when due in U.S. dollars
to the Administrative Agent at the Administrative Agent's Account in same day
funds, with payments being received by the Administrative Agent after such time
being deemed to have been received on the next succeeding Business Day. The
Administrative Agent will promptly thereafter cause like funds to be distributed
(i) if such payment by the Borrower is in respect of principal, interest,
commitment fees or any other Obligation then payable hereunder and under the
Notes to more than one Lender Party, to such Lender Parties for the account of
their respective Applicable Lending Offices ratably in accordance with the
amounts of such respective Obligations then payable to such Lender Parties and
(ii) if such payment by the Borrower is in respect of any Obligation then
payable hereunder to one Lender Party, to such Lender Party for the account of
its Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 8.07(d), from and after the effective date of such Assignment and
Acceptance, the Administrative Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the Lender Party
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
52
(b) The Borrower hereby authorizes each Lender Party and each
of its Affiliates, if and to the extent payment owed to such Lender Party is not
made when due hereunder or, in the case of a Lender, under the Note held by such
Lender, to charge from time to time, to the fullest extent permitted by law,
against any or all of the Borrower's accounts with such Lender Party or such
Affiliate any amount so due.
(c) All computations of interest, fees and Letter of Credit
commissions shall be made by the Administrative Agent on the basis of a year of
360 days, in each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest,
fees or commissions are payable. Each determination by the Administrative Agent
of an interest rate, fee or commission hereunder shall be conclusive and binding
for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or commitment or
letter of credit fee or commission, as the case may be; provided, however, that,
if such extension would cause payment of interest on or principal of Eurodollar
Rate Advances to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day. All repayments of Advances
shall be applied first to repay such Advances that are Base Rate Advances and
then to repay such Advances that are Eurodollar Rate Advances.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to any Lender
Party hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender Party
on such due date an amount equal to the amount then due such Lender Party. If
and to the extent the Borrower shall not have so made such payment in full to
the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.
(f) Whenever any payment received by the Administrative Agent
under this Agreement or any of the other Loan Documents is insufficient to pay
in full all amounts due and payable to the Agents and the Lender Parties under
or in respect of this Agreement and the other Loan Documents on any date, such
payment shall be distributed by the Administrative Agent and applied by the
Agents and the Lender Parties in the following order of priority:
(i) first, to the payment of all of the fees, indemnification
payments, costs and expenses that are due and payable to the Agents
(solely in their respective capacities as Agents) under or in respect
of this Agreement and the other Loan Documents on such date, ratably
based upon the respective aggregate amounts of all such fees,
indemnification payments, costs and expenses owing to the Agents on
such date;
53
(ii) second, to the payment of all of the fees,
indemnification payments, costs and expenses that are due and payable
to the Issuing Bank and the Swing Line Bank (solely in their respective
capacities as such) under or in respect of this Agreement and the other
Loan Documents on such date, ratably based upon the respective
aggregate amounts of all such fees, indemnification payments, costs and
expenses owing to the Issuing Bank and the Swing Line Bank on such
date;
(iii) third, to the payment of all of the indemnification
payments, costs and expenses that are due and payable to the Lenders
under Sections 8.04 hereof, Section 10 of the Security Agreement and
any similar section of any of the other Loan Documents on such date,
ratably based upon the respective aggregate amounts of all such
indemnification payments, costs and expenses owing to the Lenders on
such date;
(iv) fourth, to the payment of all of the amounts that are due
and payable to the Administrative Agent and the Lender Parties under
Sections 2.10 and 2.12 hereof on such date, ratably based upon the
respective aggregate amounts thereof owing to the Administrative Agent
and the Lender Parties on such date;
(v) fifth, to the payment of all of the fees that are due and
payable to the Lenders under Section 2.08(a) on such date, ratably
based upon the respective aggregate Commitments of the Lenders under
the Facilities on such date;
(vi) sixth, to the payment of all of the accrued and unpaid
interest on the Obligations of the Borrower under or in respect of the
Loan Documents that is due and payable to the Administrative Agent and
the Lender Parties under Section 2.07(b) on such date, ratably based
upon the respective aggregate amounts of all such interest owing to the
Administrative Agent and the Lender Parties on such date;
(vii) seventh, to the payment of all of the accrued and unpaid
interest on the Advances that is due and payable to the Administrative
Agent and the Lender Parties under Section 2.07(a) on such date,
ratably based upon the respective aggregate amounts of all such
interest owing to the Administrative Agent and the Lender Parties on
such date;
(viii) eighth, to the payment of the principal amount of all
of the outstanding Advances that is due and payable to the
Administrative Agent and the Lender Parties on such date, ratably based
upon the respective aggregate amounts of all such principal owing to
the Administrative Agent and the Lender Parties on such date;
(ix) ninth, to the payment of any and all ACH Obligations (as
defined in the Security Agreement) owing to Citibank, N.A., any Lender
or any of their respective Affiliates; and
(x) tenth, to the payment of all other Obligations of the Loan
Parties owing under or in respect of the Loan Documents that are due
and payable to the Administrative Agent and the other Secured Parties
on such date, ratably based upon the respective aggregate amounts of
all such Obligations owing to the Administrative Agent and the other
Secured Parties on such date.
54
SECTION 2.12. Taxes. (a) Any and all payments by any Loan Party to or
for the account of any Lender Party or any Agent hereunder or under the Notes or
any other Loan Document shall be made, in accordance with Section 2.11 or the
applicable provisions of such other Loan Document, if any, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender Party and each Agent, taxes that are
imposed on its overall net income by the United States and taxes that are
imposed on its overall net income (and franchise taxes imposed in lieu thereof)
by the state or foreign jurisdiction under the laws of which such Lender Party
or such Agent, as the case may be, is organized or any political subdivision
thereof and, in the case of each Lender Party, taxes that are imposed on its
overall net income (and franchise taxes imposed in lieu thereof) by the state or
foreign jurisdiction of such Lender Party's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as "TAXES"). If any
Loan Party shall be required by law to deduct any Taxes from or in respect of
any sum payable hereunder or under any Note or any other Loan Document to any
Lender Party or any Agent, (i) the sum payable by the Borrower shall be
increased as may be necessary so that after such Loan Party and the
Administrative Agent have made all required deductions (including deductions
applicable to additional sums payable under this Section 2.12) such Lender Party
or such Agent, as the case may be, receives an amount equal to the sum it would
have received had no such deductions been made, (ii) such Loan Party shall make
all such deductions and (iii) such Loan Party shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, a Loan Party shall pay any present or future
stamp, documentary, excise, property, intangible, mortgage recording or similar
taxes, charges or levies that arise from any payment made by such Loan Party
hereunder or under any Notes or any other Loan Documents or from the execution,
delivery or registration of, performance under, or otherwise with respect to,
this Agreement, the Notes or the other Loan Documents (hereinafter referred to
as "OTHER TAXES").
(c) The Loan Parties shall indemnify each Lender Party and
each Agent for and hold them harmless against the full amount of Taxes and Other
Taxes, and for the full amount of taxes of any kind imposed or asserted by any
jurisdiction on amounts payable under this Section 2.12, imposed on or paid by
such Lender Party or such Agent (as the case may be) and any liability
(including penalties, additions to tax, interest and expenses) arising therefrom
or with respect thereto. This indemnification shall be made within 30 days from
the date such Lender Party or such Agent (as the case may be) makes written
demand setting forth in reasonable detail its claim and the basis for
indemnification hereunder.
(d) Within 30 days after the date of any payment of Taxes, the
appropriate Loan Party shall furnish to the Administrative Agent, at its address
referred to in Section 8.02, the original or a certified copy of a receipt
evidencing such payment, to the extent such a receipt is issued therefor, or
other written proof of payment thereof that is reasonably satisfactory to the
Administrative Agent. In the case of any payment hereunder or under the Notes or
the other Loan Documents by or on behalf of a Loan Party through an account or
branch outside the United States or by a payor that is not a United States
person, if such Loan Party determines that no Taxes are payable in respect
55
thereof, such Loan Party shall furnish, or shall cause such payor to furnish, to
the Administrative Agent, at such address, an opinion of counsel acceptable to
the Administrative Agent stating that such payment is exempt from Taxes.
(e) Each Lender Party organized under the laws of a
jurisdiction outside the United States shall, on or prior to the date of its
execution and delivery of this Agreement in the case of each Initial Lender
Party and on the date of the Assignment and Acceptance pursuant to which it
becomes a Lender Party in the case of each other Lender Party, and from time to
time thereafter as reasonably requested in writing by the Borrower (but only so
long thereafter as such Lender Party remains lawfully able to do so), provide
each of the Administrative Agent and the Borrower with two original Internal
Revenue Service Forms W-8BEN or W-8ECI (or in the case of a Lender Party that
has certified in writing to the Administrative Agent that it is not (i) a "bank"
(as defined in Section 881(c)(3)(A) of the Internal Revenue Code), (ii) a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code) of the Borrower or (iii) a controlled foreign corporation
related to the Borrower (within the meaning of Section 864(d)(4) of the Internal
Revenue Code), Internal Revenue Service Form W-8BEN), as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender Party is exempt from or entitled to a reduced rate of United
States withholding tax on payments pursuant to this Agreement or the Notes or
any other Loan Document or, in the case of a Lender Party that has certified
that it is not a "bank" as described above, certifying that such Lender Party is
a foreign corporation, partnership, estate or trust entitled to exemption from
withholding as portfolio interest under Section 871(h) or 881(c) of the Internal
Revenue Code. If the forms provided by a Lender Party at the time such Lender
Party first becomes a party to this Agreement indicate a United States interest
withholding tax rate in excess of zero, withholding tax at such rate shall be
considered excluded from Taxes unless and until such Lender Party provides the
appropriate forms certifying that a lesser rate applies, whereupon withholding
tax at such lesser rate only shall be considered excluded from Taxes for periods
governed by such forms; provided, however, that if, at the effective date of the
Assignment and Acceptance pursuant to which a Lender Party becomes a party to
this Agreement, the Lender Party assignor was entitled to payments under
subsection (a) of this Section 2.12 in respect of United States withholding tax
with respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender Party assignee on such date.
If any form or document referred to in this subsection (e) requires the
disclosure of information, other than information necessary to compute the tax
payable and information required on the date hereof by Internal Revenue Service
Form W-8BEN or W-8EC1 or the related certificate described above, that the
applicable Lender Party reasonably considers to be confidential, such Lender
Party shall give notice thereof to the Borrower and shall not be obligated to
include in such form or document such confidential information. For purposes of
subsections (d) and (e) of this Section 2.12, the terms "UNITED STATES" and
"UNITED STATES PERSON" shall have the meanings specified in Section 7701 of the
Internal Revenue Code.
(f) For any period with respect to which a Lender Party has
failed to provide the Borrower with the appropriate form, certificate or other
document described in subsection (e) above (other than if such failure is due to
a change in law, or in the interpretation or application thereof, occurring
after the date on which a form, certificate or other document originally was
56
required to be provided or if such form, certificate or other document otherwise
is not required under subsection (e) above), such Lender Party shall not be
entitled to indemnification under subsection (a) or (c) of this Section 2.12
with respect to Taxes imposed by the United States by reason of such failure;
provided, however, that should a Lender Party become subject to Taxes because of
its failure to deliver a form, certificate or other document required hereunder,
the Loan Parties shall take such steps as such Lender Party shall reasonably
request to assist such Lender Party to recover such Taxes.
(g) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.12
shall survive the payment in full of the principal and of interest on all
Borrowings and Advances made hereunder.
(h) Notwithstanding anything to the contrary in this Section
2.12, any Lender Party claiming any additional amounts payable pursuant to this
Section 2.12 shall use its reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Applicable Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that would be payable
or may thereafter accrue and would not, in the sole determination of such
Lender, be otherwise disadvantageous to such Lender Party.
(i) If the Borrower determines in good faith that substantial
authority exists for successfully contesting any Taxes paid or otherwise
indemnified against under Section 2.12(c), and so long as the Borrower agrees in
writing to indemnify the relevant Lender, the Administrative Agent or any other
Agent against any damages or costs in connection with such contest, the relevant
Lender, the Administrative Agent or any other Agent, as applicable, shall
cooperate with the Borrower in challenging such Taxes at the Borrower's expense,
if so requested by the Borrower, unless the relevant Lender, the Administrative
Agent or other Agent, as the case may be, determines in its discretion that it
would be adversely affected by such contest. If any Lender, the Administrative
Agent or any other Agent, as applicable, receives a refund of a Tax previously
paid by the Borrower or otherwise indemnified against under Section 2.12(c),
which refund in the good faith judgment of such Lender, the Administrative Agent
or such other Agent, as the case may be, is attributable to such payment made by
the Borrower, then the Lender, the Administrative Agent or other Agent, as the
case may be, shall reimburse the Borrower for such amount (together with any
interest received thereon) as the Lender, the Administrative Agent or other
Agent, as the case may be, determines to be the proportion of the refund as will
leave it, after such reimbursement, in no better or worse position (taking into
account expenses or any Taxes imposed on the refund) than it would have been in
if the payment had not been required, provided, however, that any such
reimbursement shall be made only after such refund has been finally determined
and cannot be adjusted and the Borrower shall return such refund to such Lender
or Agent if erroneously made or otherwise changed. At the expense of the
Borrower, the Lender, an Administrative Agent or other Agent shall claim any
refund involving a Tax against which it is indemnified by the Borrower that such
Lender or Agent determines is available to it, unless such Lender or Agent
concludes in its discretion that it would be adversely affected by making such a
claim. The agreements in this clause (i) shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
57
SECTION 2.13. Sharing of Payments, Etc. If any Lender Party shall
obtain at any time any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise, other than as a result of an
assignment pursuant to Section 8.07) (a) on account of Obligations due and
payable to such Lender Party hereunder and under the Notes and the other Loan
Documents at such time in excess of its ratable share (according to the
proportion of (i) the amount of such Obligations due and payable to such Lender
Party at such time to (ii) the aggregate amount of the Obligations due and
payable to all Lender Parties hereunder and under the Notes and the other Loan
Documents at such time) of payments on account of the Obligations due and
payable to all Lender Parties hereunder and under the Notes at such time
obtained by all the Lender Parties at such time or (b) on account of Obligations
owing (but not due and payable) to such Lender Party hereunder and under the
Notes and the other Loan Documents at such time in excess of its ratable share
(according to the proportion of (i) the amount of such Obligations owing to such
Lender Party at such time to (ii) the aggregate amount of the Obligations owing
(but not due and payable) to all Lender Parties hereunder and under the Notes
and the other Loan Documents at such time) of payments on account of the
Obligations owing (but not due and payable) to all Lender Parties hereunder and
under the Notes at such time obtained by all of the Lender Parties at such time,
such Lender Party shall forthwith purchase from the other Lender Parties such
interests or participating interests in the Obligations due and payable or owing
to them, as the case may be, as shall be necessary to cause such purchasing
Lender Party to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender Party, such purchase from each other
Lender Party shall be rescinded and such other Lender Party shall repay to the
purchasing Lender Party the purchase price to the extent of such Lender Party's
ratable share (according to the proportion of (i) the purchase price paid to
such Lender Party to (ii) the aggregate purchase price paid to all Lender
Parties) of such recovery together with an amount equal to such Lender Party's
ratable share (according to the proportion of (i) the amount of such other
Lender Party's required repayment to (ii) the total amount so recovered from the
purchasing Lender Party) of any interest or other amount paid or payable by the
purchasing Lender Party in respect of the total amount so recovered. The
Borrower agrees that any Lender Party so purchasing an interest or participating
interest from another Lender Party pursuant to this Section 2.13 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such interest or participating interest,
as the case may be, as fully as if such Lender Party were the direct creditor of
the Borrower in the amount of such interest or participating interest, as the
case may be.
SECTION 2.14. Use of Proceeds. The proceeds of the Advances and
issuances of Letters of Credit shall be available (and the Borrower agrees that
it shall use such proceeds and Letters of Credit) solely to (i) refinance the
obligations under the Existing Credit Agreement, (ii) pay related transactions
costs, fees and expenses, and (iii) provide financing for working capital, and
other general corporate purposes for the Borrower and its Subsidiaries
(collectively, the "INTENDED USE TRANSACTIONS").
SECTION 2.15. Defaulting Lenders. (a) In the event that, at any one
time, (i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting
Lender shall owe a Defaulted Advance to the Borrower and (iii) the Borrower
shall be required to make any payment hereunder or under any other Loan Document
to or for the account of such Defaulting Lender, then the Borrower may, so long
as no Default shall occur or be continuing at such time and to the fullest
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extent permitted by applicable law, set off and otherwise apply the Obligation
of the Borrower to make such payment to or for the account of such Defaulting
Lender against the obligation of such Defaulting Lender to make such Defaulted
Advance. In the event that, on any date, the Borrower shall so set off and
otherwise apply its obligation to make any such payment against the obligation
of such Defaulting Lender to make any such Defaulted Advance on or prior to such
date, the amount so set off and otherwise applied by the Borrower shall
constitute for all purposes of this Agreement and the other Loan Documents an
Advance by such Defaulting Lender made on the date of such setoff under the
Facility pursuant to which such Defaulted Advance was originally required to
have been made pursuant to Section 2.01. Such Advance shall be considered, for
all purposes of this Agreement, to comprise part of the Borrowing in connection
with which such Defaulted Advance was originally required to have been made
pursuant to Section 2.01, even if the other Advances comprising such Borrowing
shall be Eurodollar Rate Advances on the date such Advance is deemed to be made
pursuant to this subsection (a). The Borrower shall notify the Administrative
Agent at any time the Borrower exercises its right of set-off pursuant to this
subsection (a) and shall set forth in such notice (A) the name of the Defaulting
Lender and the Defaulted Advance required to be made by such Defaulting Lender
and (B) the amount set off and otherwise applied in respect of such Defaulted
Advance pursuant to this subsection (a). Any portion of such payment otherwise
required to be made by the Borrower to or for the account of such Defaulting
Lender which is paid by the Borrower, after giving effect to the amount set off
and otherwise applied by the Borrower pursuant to this subsection (a), shall be
applied by the Administrative Agent as specified in subsection (b) or (c) of
this Section 2.15.
(b) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted
Amount to any Agent or any of the other Lender Parties and (iii) the Borrower
shall make any payment hereunder or under any other Loan Document to the
Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Agents or
such other Lender Parties and to the fullest extent permitted by applicable law,
apply at such time the amount so paid by the Borrower to or for the account of
such Defaulting Lender to the payment of each such Defaulted Amount to the
extent required to pay such Defaulted Amount. In the event that the
Administrative Agent shall so apply any such amount to the payment of any such
Defaulted Amount on any date, the amount so applied by the Administrative Agent
shall constitute for all purposes of this Agreement and the other Loan Documents
payment, to such extent, of such Defaulted Amount on such date. Any such amount
so applied by the Administrative Agent shall be retained by the Administrative
Agent or distributed by the Administrative Agent to such other Agents or such
other Lender Parties, ratably in accordance with the respective portions of such
Defaulted Amounts payable at such time to the Administrative Agent, such other
Agents and such other Lender Parties and, if the amount of such payment made by
the Borrower shall at such time be insufficient to pay all Defaulted Amounts
owing at such time to the Administrative Agent, such other Agents and such other
Lender Parties, in the following order of priority:
(i) first, to the Agents for any Defaulted Amounts then owing
to them, in their capacities as such, ratably in accordance with such
respective Defaulted Amounts then owing to the Agents;
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(ii) second, to the Issuing Bank and the Swing Line Bank for
any Defaulted Amounts then owing to them, respectively in their
capacities as such, ratably in accordance with such respective
Defaulted Amounts then owing to the Issuing Bank and the Swing Line
Bank; and
(iii) third, to any other Lender Parties for any Defaulted
Amounts then owing to such other Lender Parties, ratably in accordance
with such respective Defaulted Amounts then owing to such other Lender
Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a
Defaulted Advance or a Defaulted Amount and (iii) the Borrower, any Agent or any
other Lender Party shall be required to pay or distribute any amount hereunder
or under any other Loan Document to or for the account of such Defaulting
Lender, then the Borrower or such Agent or such other Lender Party shall pay
such amount to the Administrative Agent to be held by the Administrative Agent,
to the fullest extent permitted by applicable law, in escrow or the
Administrative Agent shall, to the fullest extent permitted by applicable law,
hold in escrow such amount otherwise held by it. Any funds held by the
Administrative Agent in escrow under this subsection (c) shall be deposited by
the Administrative Agent in an account with a bank (the "ESCROW BANK") selected
by the Administrative Agent, in the name and under the control of the
Administrative Agent, but subject to the provisions of this subsection (c). The
terms applicable to such account, including the rate of interest payable with
respect to the credit balance of such account from time to time, shall be the
Escrow Bank's standard terms applicable to escrow accounts maintained with it.
Any interest credited to such account from time to time shall be held by the
Administrative Agent in escrow under, and applied by the Administrative Agent
from time to time in accordance with the provisions of, this subsection (c). The
Administrative Agent shall, to the fullest extent permitted by applicable law,
apply all funds so held in escrow from time to time to the extent necessary to
make any Advances required to be made by such Defaulting Lender and to pay any
amount payable by such Defaulting Lender hereunder and under the other Loan
Documents to the Administrative Agent or any other Lender Party, as and when
such Advances or amounts are required to be made or paid and, if the amount so
held in escrow shall at any time be insufficient to make and pay all such
Advances and amounts required to be made or paid at such time, in the following
order of priority:
(i) first, to the Agents for any amounts then due and payable
by such Defaulting Lender to them hereunder, in their capacities as
such, ratably in accordance with such respective amounts then due and
payable to the Agents;
(ii) second, to the Issuing Bank and the Swing Line Bank for
any amounts then due and payable to them hereunder, in their capacities
as such, by such Defaulting Lender, ratably in accordance with such
respective amounts then due and payable to the Issuing Bank and the
Swing Line Bank;
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(iii) third, to any other Lender Parties for any amount then
due and payable by such Defaulting Lender to such other Lender Parties
hereunder, ratably in accordance with such respective amounts then due
and payable to such other Lender Parties; and
(iv) fourth, to the Borrower for any Advance then required to
be made by such Defaulting Lender pursuant to a Commitment of such
Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under
this Section 2.15 are in addition to other rights and remedies that the Borrower
may have against such Defaulting Lender with respect to any Defaulted Advance
and that any Agent or any Lender Party may have against such Defaulting Lender
with respect to any Defaulted Amount.
SECTION 2.16. Evidence of Debt. (a) Each Lender Party shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Advance owing to
such Lender Party from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder. The
Borrower agrees that upon notice by any Lender Party to the Borrower (with a
copy of such notice to the Administrative Agent) to the effect that a promissory
note or other evidence of indebtedness is required or appropriate in order for
such Lender Party to evidence (whether for purposes of pledge, enforcement or
otherwise) the Advances owing to, or to be made by, such Lender Party, the
Borrower shall promptly execute and deliver to such Lender Party, with a copy to
the Administrative Agent, a Note, in substantially the form of Exhibit A hereto,
payable to the order of such Lender Party in a principal amount equal to the
Revolving Credit Commitment of such Lender Party. All references to Notes in the
Loan Documents shall mean Notes, if any, to the extent issued hereunder.
(b) The Register maintained by the Administrative Agent
pursuant to Section 8.07(d) shall include a control account, and a subsidiary
account for each Lender Party, in which accounts (taken together) shall be
recorded (i) the date and amount of each Borrowing made hereunder, the Type of
Advances comprising such Borrowing and, if appropriate, the Interest Period
applicable thereto, (ii) the terms of each Assignment and Acceptance delivered
to and accepted by it, (iii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender Party
hereunder, and (iv) the amount of any sum received by the Administrative Agent
from the Borrower hereunder and each Lender Party's share thereof.
(c) Entries made in good faith by the Administrative Agent in
the Register pursuant to subsection (b) above, and by each Lender Party in its
account or accounts pursuant to subsection (a) above, shall be prima facie
evidence of the amount of principal and interest due and payable or to become
due and payable from the Borrower to, in the case of the Register, each Lender
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Party and, in the case of such account or accounts, such Lender Party, under
this Agreement, absent manifest error; provided, however, that the failure of
the Administrative Agent or such Lender Party to make an entry, or any finding
that an entry is incorrect, in the Register or such account or accounts shall
not limit or otherwise affect the obligations of the Borrower under this
Agreement.
SECTION 2.17. Increase in Revolving Credit Commitments
(a) Incremental Commitments. Provided there exists no Default
or Event of Default, the Borrower may from time to time, in accordance with this
Section 2.17, elect to increase the Revolving Credit Commitments by a written
notice to the Administrative Agent (each, an "INCREMENTAL REVOLVING CREDIT
COMMITMENT NOTICE"), which Incremental Revolving Credit Commitment Notice shall
be promptly notified by the Administrative Agent to the Lenders, by an amount
(for all such Revolving Credit Commitment increases) not exceeding $200 million
(each such increase, an "INCREMENTAL REVOLVING CREDIT COMMITMENT") ; provided
that any such increase shall be in a minimum amount of $25 million. Such
Incremental Revolving Credit Commitment Notice shall specify the time period (to
be determined by the Borrower upon consultation with the Administrative Agent,
but in no event to be less than ten Business Days from the date of delivery of
such Incremental Revolving Credit Commitment Notice to the Administrative Agent)
within which each Lender is required to inform the Borrower and the
Administrative Agent whether such Lender desires to participate in such
Incremental Revolving Credit Commitment.
(b) Lender Elections to Increase. Each Lender shall notify the
Borrower and the Administrative Agent within the prescribed time period whether
or not it desires (in its sole discretion) to participate in such Incremental
Revolving Credit Commitment and increase its Revolving Credit Commitment in
connection therewith and, if so, shall specify the amount of the additional
Revolving Credit Commitment of such Incremental Revolving Credit Commitment
requested to be allocated to it. Any Lender not responding within such time
period shall be deemed to have declined to participate in such Incremental
Revolving Credit Commitment.
(c) Notification by Administrative Agent; Additional Lenders.
The Administrative Agent shall notify the Borrower and each Lender of the
Lenders' responses to each Incremental Revolving Credit Commitment Notice. To
obtain commitments in an aggregate amount equal to the Incremental Revolving
Credit Commitment subject to each Incremental Revolving Credit Commitment
Notice, and subject to the approval of the Administrative Agent and the Issuing
Bank (which approvals shall not be unreasonably withheld or delayed), the
Borrower may obtain the commitments of additional Eligible Assignees to become
Lenders under this Agreement pursuant to a joinder agreement in form and
substance reasonably satisfactory to the Administrative Agent.
(d) Effective Date and Allocations. If the Revolving Credit
Commitments are increased in accordance with this Section, the Administrative
Agent and the Borrower shall determine the effective date (the "REVOLVING CREDIT
INCREASE EFFECTIVE DATE") and the final allocation of the applicable Incremental
Revolving Credit Commitment. The Administrative Agent shall promptly notify the
Borrower and the Lenders of the final allocation of such increase and the
Revolving Credit Increase Effective Date.
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(e) Conditions to Effectiveness of Increase. As a condition
precedent to each Incremental Revolving Credit Commitment, the Borrower shall
deliver to the Administrative Agent a certificate of each Loan Party dated as of
the Revolving Credit Increase Effective Date signed by a Responsible Officer of
such Loan Party (i) certifying and attaching the resolutions adopted by such
Loan Party approving or consenting to such Incremental Revolving Credit
Commitment, and (ii) in the case of the Borrower, certifying that, before and
after giving effect to such Incremental Revolving Credit Commitment, (A) the
representations and warranties contained in Article IV and the other Loan
Documents are true and correct on and as of the relevant Revolving Credit
Increase Effective Date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and except that for purposes of this
Section 2.17, the representations and warranties contained in subsection (i) of
Section 4.01(g) shall be deemed to refer to the most recent statements furnished
pursuant to clause (b) of Section 5.03, (B) no Default or Event of Default
exists or would exist after giving effect to such Incremental Revolving Credit
Commitment and the application of any proceeds thereof, and (C) all accrued fees
and expenses of the Agents and the Lender Parties participating in such
Incremental Revolving Credit Commitment in connection with such Incremental
Revolving Credit Commitment (including, without limitation, the reasonable
accrued fees and expenses of counsel to the Administrative Agent as set forth in
an invoice to be provided to the Borrower from the Administrative Agent) have
been paid. The Borrower shall prepay any Revolving Credit Loans outstanding on
the Revolving Credit Increase Effective Date (and pay any additional amounts
required pursuant to Section 2.10) to the extent necessary to keep the
outstanding Revolving Credit Advances ratable with any revised Pro Rata Shares
in respect of Revolving Credit Commitments arising from any nonratable increase
in the Revolving Credit Commitments under this Section.
(f) Any Incremental Revolving Credit Commitment (i) shall rank
pari passu in right of payment and of security with, and shall have the same
guarantees as, the Senior Facility, (ii) shall not mature earlier than the
Termination Date and shall have a life to maturity that is no shorter than the
life to maturity of the Senior Facility, (iii) shall be treated substantially
the same as the Senior Facility (including with respect to mandatory and
voluntary prepayments) and all other terms and documentation in respect thereof,
to the extent inconsistent with the Senior Facility, shall not be more onerous
than the Senior Facility and shall be reasonably satisfactory to the
Administrative Agent, and (iii) in the event the applicable margin on an Advance
pursuant to any Incremental Revolving Credit Commitment at any time exceeds the
Applicable Margin hereunder, the Applicable Margin hereunder shall be
automatically increased so that no such excess exists.
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Effectiveness of Amended and
Restated Credit Agreement. This Agreement shall become effective on and as of
the date (the "EFFECTIVE DATE") on which each of the following conditions
precedent shall have been satisfied:
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(a) The Administrative Agent shall have received on or before
the Effective Date the following, each dated as of such day (unless
otherwise specified), in form and substance reasonably satisfactory to
the Administrative Agent and (except for the Notes) in sufficient
copies for each Lender Party:
(i) The Notes payable to the order of the Lenders to
the extent requested by the Lenders pursuant to the terms of
Section 2.16.
(ii) Copies of reports in respect of completed Lien
searches (as of a recent date reasonably satisfactory to the
Administrative Agent), listing all effective financing
statements that name any Loan Party as debtor filed in any
jurisdiction relevant to the perfection of the Liens created
under the Security Agreement in the Collateral described
therein and owned by such Loan Party.
(iii) Certified copies of the resolutions of the
Board of Directors of each Loan Party approving the
Transaction and each Transaction Document to which it is or is
to be a party, and of all documents evidencing other necessary
corporate action and governmental and other third party
approvals and consents, if any, with respect to the
Transaction and each Transaction Document to which it is or is
to be a party.
(iv) A copy of a certificate of the Secretary of
State of the jurisdiction of incorporation of each Loan Party,
dated reasonably near the Effective Date, certifying (A) as to
a true and correct copy of the charter of such Loan Party and
each amendment thereto on file in such Secretary's office and
(B) that (1) such amendments are the only amendments to such
Loan Party's charter on file in such Secretary's office, (2)
such Loan Party has paid all franchise taxes to the date of
such certificate and (3) such Loan Party is duly incorporated
and in good standing or presently subsisting under the laws of
the State of the jurisdiction of its incorporation.
(v) A certificate of each Loan Party, signed on
behalf of such Loan Party by its Secretary or any Assistant
Secretary, dated as of the Effective Date (the statements made
in which certificate shall be true on and as of Effective
Date), certifying as to (A) the absence of any amendments to
the relevant certificate of incorporation as certified by the
Secretary of State's certificate referred to in Section
3.01(a)(iv) since the date of such Secretary of State's
certificate, (B) a true and correct copy of the bylaws of such
Loan Party as in effect on the date on which the resolutions
referred to in Section 3.01(a)(iii) were adopted and on the
Effective Date, and (C) the due incorporation and good
standing or valid existence of such Loan Party as a
corporation organized under the laws of the jurisdiction of
its incorporation, and the absence of any proceeding for the
dissolution or liquidation of such Loan Party.
(vi) A certificate of each Loan Party, signed on
behalf of such Loan Party by its President or other
Responsible Officer acceptable to the Administrative Agent,
dated as of the Effective Date (the statements made in which
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certificate shall be true on and as of the Effective Date),
certifying as to (A) the truth in all material respects of the
representations and warranties contained in the Loan Documents
as though made on and as of the Effective Date) and (B) the
absence of any event occurring and continuing, or resulting
from the Effective Date, that constitutes a Default.
(vii) A certificate of the Secretary or an Assistant
Secretary of each Loan Party certifying the names and true
signatures of the officers of such Loan Party authorized to
sign each Loan Document to which it is or is to be a party and
the other documents to be delivered hereunder and thereunder.
(viii) A certificate, in substantially the form of
Exhibit D, attesting to the Solvency of the Borrower and its
subsidiaries, taken as a whole, before and after giving effect
to the transactions contemplated hereunder (and assuming that
neither the Borrower nor any of its Subsidiaries is subject to
asbestos-related liabilities), from the Chief Financial
Officer of the Borrower.
(ix) Evidence of insurance naming the Collateral
Agent as additional insured and loss payee with such
responsible and reputable insurance companies or associations,
and in such amounts and covering such risks, as is
satisfactory to the Lender Parties.
(x) A Borrowing Base Certificate satisfactory to the
Administrative Agent, updated as of August 27, 2006.
(xi) A favorable opinion of Weil Gotshal & Manges,
LLP, counsel for the Loan Parties, in substantially the form
of Exhibit E hereto.
(xii) A favorable opinion of Marc J. Kurzman, the
acting General Counsel to the Borrower, in substantially the
form of Exhibit I hereto.
(xiii) A favorable opinion of Shearman & Sterling,
counsel for the Administrative Agent, in form and substance
satisfactory to the Administrative Agent.
(b) The Borrower shall have paid all reasonable accrued fees
of the Agents and the Lender Parties and all reasonable and documented
accrued expenses of the Agents (including the reasonable accrued fees
and expenses of counsel to the Administrative Agent and local counsel
to the Lender Parties as set forth in an invoice to be provided to the
Borrower from the Administrative Agent at least two Business Days prior
to the date hereof).
(c) The Administrative Agent shall be satisfied that required
and/or appropriate notice of the Facilities and the related
transactions has been given to the Creditors' Committee and the futures
representative in the G-I Holdings bankruptcy proceedings, and that all
applicable notice periods with respect thereto have expired (a) without
any adverse action being taken by any such Creditors' Committee, the
futures representative or the Bankruptcy Court or (b) if any such
action has been taken, both (x) the Bankruptcy Court (or other court of
65
competent jurisdiction) shall not have entered an order or injunction
prohibiting, or otherwise prohibited, the Borrower or any of its
affiliates from entering into or performing the transactions
contemplated hereby and (y) such action has been resolved by a final
order of the Bankruptcy Court (or other court of competent
jurisdiction) in a manner reasonably satisfactory to the Administrative
Agent.
(d) A field examination of the Receivables of the Loan Parties
and third party appraisals of the Inventory, Property and Equipment
shall have been completed, with results satisfactory to the
Administrative Agent.
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance and
Renewal. The obligation of each Lender to make an Advance (other than a Letter
of Credit Advance made by the Issuing Bank or a Lender pursuant to Section
2.03(c) and a Swing Line Advance made by a Lender pursuant to Section 2.02(b))
on the occasion of each Borrowing (including the initial Borrowing), and the
obligation of the Issuing Bank to issue a Letter of Credit (including the
initial issuance) or renew a Letter of Credit and the right of the Borrower to
request a Swing Line Borrowing, shall be subject to the further conditions
precedent that on the date of such Borrowing or issuance or renewal (a) the
following statements shall be true and the Administrative Agent shall have
received for the account of such Lender or the Issuing Bank a certificate signed
by a duly authorized officer of the Borrower, dated the date of such Borrowing
or issuance or renewal, stating that (and each of the giving of the applicable
Notice of Borrowing, Notice of Swing Line Borrowing, Notice of Issuance or
Notice of Renewal and the acceptance by the Borrower of the proceeds of such
Borrowing or of such Letter of Credit or the renewal of such Letter of Credit
shall constitute a representation and warranty by the Borrower that both on the
date of such notice and on the date of such Borrowing or issuance or renewal
such statements are true):
(i) the representations and warranties contained in each Loan
Document are correct in all material respects on and as of such date,
before and immediately after giving effect to such Borrowing or
issuance or renewal and to the application of the proceeds therefrom,
as though made on and as of such date, other than any such
representations or warranties that, by their terms, refer to a specific
date other than the date of such Borrowing or issuance or renewal, in
which case as of such specific date;
(ii) no Default has occurred and is continuing, or would
result from such Borrowing or issuance or renewal or from the
application of the proceeds therefrom; and
(iii) for each Revolving Credit Advance or Swing Line Advance
made by the Swing Line Bank or issuance or renewal of any Letter of
Credit, the Loan Value exceeds the aggregate principal amount of the
Revolving Credit Advances plus Swing Line Advances plus Letter of
Credit Advances to be outstanding plus the aggregate Available Amount
of all Letters of Credit to be outstanding after giving effect to such
Advance or issuance or renewal, respectively; and
(b) the Administrative Agent shall be satisfied that (i) no action adverse to
the validity and enforceability of the liens created in favor of the Collateral
Agent, for the benefit of the Lender Parties, under the Collateral Documents or
the rights or remedies of the Agents or the Lenders under any of the Loan
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Documents has been taken in or in connection with the G-I Holdings bankruptcy
proceedings (it being understood that the filings on June 30, 2003 of the Notice
of Appeal and the brief in support thereof by the Official Committee of Asbestos
Claimants in the G-I Holdings bankruptcy proceedings shall not, solely by
themselves, be deemed to be adverse actions for purposes of this clause (b)) or
(ii) if any such action has been taken, such action has been resolved in a
manner reasonably satisfactory to the Administrative Agent.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Effective Date specifying its objection thereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) Corporate Existence. Each Loan Party and each of its
Subsidiaries (i) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation, (ii) is duly qualified and in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases
property or in which the conduct of its business requires it to so
qualify or be licensed except where the failure to so qualify or be
licensed could not be reasonably expected to have a Material Adverse
Effect and (iii) has all requisite corporate power and authority
(including, without limitation, all Governmental Authorizations) to own
or lease and operate its properties and to carry on its business as now
conducted and as proposed to be conducted. All of the outstanding
Equity Interests in the Borrower have been validly issued, are fully
paid and non-assessable and are owned by BMCA Holdings Corporation in
the amounts specified on Schedule 4.01(a) hereto free and clear of all
Liens, except those created under the Collateral Documents.
(b) Subsidiaries. Set forth on Schedule 4.01(b) hereto is a
complete and accurate list of all Subsidiaries of each Loan Party,
showing as of the date hereof (as to each such Subsidiary) the
jurisdiction of its incorporation, the number of shares of each class
of its Equity Interests authorized, and the number outstanding on the
date hereof and the percentage of each such class of its Equity
Interests owned (directly or indirectly) by such Loan Party and the
number of shares covered by all outstanding options, warrants, rights
of conversion or purchase and similar rights at the date hereof. All of
the outstanding Equity Interests in each Loan Party's Subsidiaries have
been validly issued, are fully paid and non-assessable and are owned by
such Loan Party or one or more of its Subsidiaries free and clear of
all Liens, except those created under the Collateral Documents.
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(c) Corporate Power; Authorization. The execution, delivery
and performance by each Loan Party of each Transaction Document to
which it is or is to be a party, and the consummation of the
transactions contemplated hereunder, are within such Loan Party's
corporate powers, have been duly authorized by all necessary corporate
action, and do not (i) contravene such Loan Party's charter or bylaws,
(ii) violate any law, rule, regulation (including, without limitation,
Regulation X and Regulation U of the Board of Governors of the Federal
Reserve System), order, writ, judgment, injunction, decree,
determination or award, (iii) conflict with or result in the breach of,
or constitute a default or require any payment to be made under, any
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument binding on or affecting any Loan Party, any of its
Subsidiaries or any of their properties or (iv) except for the Liens
created under the Loan Documents, result in or require the creation or
imposition of any Lien upon or with respect to any of the properties of
any Loan Party or any of its Subsidiaries. No Loan Party or any of its
Subsidiaries is in violation of any such law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award or in breach
of any such contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument, the violation or breach of which
could reasonably be expected to have a Material Adverse Effect.
(d) Governmental Authorizations. No Governmental
Authorization, and no notice to or filing with, any Governmental
Authority or any other third party is required for (i) the due
execution, delivery, recordation, filing or performance by any Loan
Party of any Loan Document to which it is or is to be a party, or for
the consummation of the Transaction, (ii) the grant by any Loan Party
of the Liens granted by it pursuant to the Collateral Documents, (iii)
the perfection or maintenance of the Liens created under the Collateral
Documents (including the first priority nature thereof (subject to
Liens permitted under any Loan Document)) or (iv) the exercise by any
Agent or any Lender Party of its rights under the Loan Documents or the
remedies in respect of the Collateral pursuant to the Collateral
Documents, except for the authorizations, approvals, actions, notices
and filings which have been duly obtained, taken, given or made on or
prior to the date hereof and are in full force and effect. All
applicable waiting periods in connection with the Transaction have
expired without any action having been taken by any competent authority
restraining, preventing or imposing materially adverse conditions upon
the Transaction or the rights of the Loan Parties or their Subsidiaries
freely to transfer or otherwise dispose of, or to create any Lien on,
any properties now owned or hereafter acquired by any of them.
(e) Enforceable Obligations. This Agreement has been, and each
other Transaction Document when delivered hereunder will have been,
duly executed and delivered by each Loan Party party thereto. This
Agreement is, and each other Transaction Document when delivered
hereunder will be, the legal, valid and binding obligation of each Loan
Party party thereto, enforceable against such Loan Party in accordance
with its terms.
(f) Litigation. Other than the matters described on Schedule
4.01(f) hereto (the "DISCLOSED LITIGATION"), there is no action, suit,
investigation, litigation or proceeding affecting any Loan Party or any
of its Subsidiaries, including any Environmental Action, pending or to
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the knowledge of the Borrower, threatened before any Governmental
Authority or arbitrator that (i) could reasonably be expected to have a
Material Adverse Effect (other than the Disclosed Litigation) or (ii)
purports to affect the legality, validity or enforceability of any
Transaction Document or the consummation of the Transaction, and since
September 14, 2006, there has been no material adverse change in the
status, or financial effect on any Loan Party or any of its
Subsidiaries, of the Disclosed Litigation from that described on
Schedule 4.01(f) hereto.
(g) Financial Statements. (i) The Consolidated balance sheet
of the Borrower and its Subsidiaries as at December 31, 2005, and the
related Consolidated statement of income and Consolidated statement of
cash flows of the Borrower and its Subsidiaries for the Fiscal Year
then ended, accompanied by an unqualified opinion of KPMG, independent
public accountants, copies of which have been furnished to each Lender
Party, fairly present the Consolidated financial condition of the
Borrower and its Subsidiaries as at such date and the Consolidated
results of operations of the Borrower and its Subsidiaries for the
period ended on such date, all in accordance with GAAP, and since
December 31, 2005, there has been no Material Adverse Change.
(ii) The Consolidated forecasted balance sheets, statements of
income and statements of cash flows of the Borrower and its
Subsidiaries delivered to the Lender Parties in January, 2006, and all
other written information in connection therewith, or otherwise
required to be delivered pursuant to Section 5.03 were prepared in good
faith on the basis of the assumptions stated therein, which assumptions
were fair in light of the conditions existing at the time of delivery
of such forecasts, and represented, at the time of delivery, the
Borrower's good faith and reasonable estimate of the future financial
performance of the Borrower and its Subsidiaries.
(iii) No written information, exhibit or report delivered or
furnished by or on behalf of any Loan Party to any Agent or any Lender
Party in connection with the negotiation and syndication of the Loan
Documents or pursuant to the terms of the Loan Documents contained
(when taken together) at the time such information was delivered or
furnished any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements made therein at the time
made not misleading.
(iv) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock, and no
proceeds of any Advance or drawings under any Letter of Credit will be
used to purchase or carry any Margin Stock or to extend credit to
others for the purpose of purchasing or carrying any Margin Stock.
(h) Investment Company Act; Public Utility Holding Company
Act. Neither any Loan Party nor any of its Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended. Neither any
Loan Party 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",
as such terms are defined in the Public Utility Holding Company Act of
1935, as amended. Neither the making of any Advances, nor the issuance
69
of any Letters of Credit, nor the application of the proceeds or
repayment thereof by the Borrower, nor the consummation of the other
transactions contemplated by the Loan Documents, will violate any
provision of any such Act or any rule, regulation or order of the
Securities and Exchange Commission thereunder.
(i) No Burdensome Restrictions. Neither any Loan Party nor any
of its Subsidiaries is a party to any indenture, loan or credit
agreement or any lease or other agreement or instrument containing
restrictions, or subject to any charter or corporate restriction, that
could be reasonably expected to have a Material Adverse Effect.
(j) Filings, Etc. All filings and other actions necessary to
perfect and protect the security interest in the Collateral created
under the Collateral Documents have been duly made or taken and are in
full force and effect, and the Collateral Documents create in favor of
the Collateral Agent for the benefit of the Secured Parties a valid
and, together with such filings and other actions, perfected first
priority security interest (subject to Liens permitted under Section
5.02(a)) in the Collateral, securing the payment of the Secured
Obligations, and all filings and other actions reasonably necessary to
perfect and protect such security interest have been duly taken. The
Loan Parties are the legal and beneficial owners of the Collateral free
and clear of any Lien, except for the liens and security interests
created or permitted under the Loan Documents.
(k) Solvency. The Borrower and its Subsidiaries, taken as a
whole are Solvent (assuming that neither the Borrower nor any of its
Subsidiaries has any liability in respect of asbestos claims).
(l) ERISA Matters. (i) Set forth on Schedule 4.01(l) hereto,
as of the date hereof, is a complete and accurate list of all Plans and
Multiemployer Plans.
(ii) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan that would result in a material
liability.
(iii) Schedule B (Actuarial Information) to the most recent
annual report (Form 5500 Series) for each Plan, copies of which have
been filed with the Internal Revenue Service and furnished to the
Lender Parties, is complete and accurate in all material respects and
fairly presents the funding status of such Plan, and since the date of
such Schedule B there has been no material adverse change in such
funding status.
(iv) Neither any Loan Party nor any ERISA Affiliate has
incurred or is reasonably expected to incur any material Withdrawal
Liability to any Multiemployer Plan which has not been fully satisfied.
(v) Neither any Loan Party nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or has been terminated, within the meaning of
Title IV of ERISA, and no such Multiemployer Plan is reasonably
expected to be in reorganization or to be terminated, within the
meaning of Title IV of ERISA except to the extent such reorganization
or termination has not resulted, and is not reasonably expected to
result, in a material liability of any Loan Party or any ERISA
Affiliate.
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(m) Environmental Matters. Except as set forth on Schedule
4.01(m),
(i) The operations and properties of each Loan Party and each
of its Subsidiaries comply in all material respects with Environmental
Laws and Environmental Permits, all past non-compliance with such
Environmental Laws and Environmental Permits has been resolved or is
expected to be resolved without material ongoing obligations or costs,
and, to the knowledge of the Loan Parties, no circumstances exist that
could be reasonably likely to (A) form the basis of an Environmental
Action against any Loan Party or any of its Subsidiaries or any of
their properties that could have a Material Adverse Effect or (B) cause
any such property to be subject to any material restrictions on
ownership, occupancy, use or transferability under any Environmental
Law, assuming continued use of the property for industrial purposes.
(ii) None of the Properties currently or, to the knowledge of
the Loan Parties, formerly owned or operated by any Loan Party or any
of its Subsidiaries is listed or proposed for listing on the NPL or on
any analogous foreign, or state list.
(iii) None of the Properties owned or operated by any Loan
Party or any of its Subsidiaries is a treatment, storage or disposal
facility requiring a permit under the Resource Conservation and
Recovery Act, 42 U.S.C. ss.6901 et seq., the regulations thereunder or
any state analogue.
(iv) There are no facts or circumstances or conditions arising
out of the location and operation of any underground or above ground
storage tanks, surface impoundments, septic tanks, pits, sumps or
lagoons in which Hazardous Materials are being or have been treated,
stored or disposed of or the release, discharge or disposal of
Hazardous Materials on any property currently owned or operated by any
Loan Party or any of its Subsidiaries or, to the knowledge of any Loan
Party, on any property formerly owned or operated by any Loan Party or
any of its Subsidiaries that would reasonably be expected to cause the
Loan Parties or any of their Subsidiaries any liability ((I) excluding
(A) liabilities incurred in the ordinary cause of business, and (B)
liabilities with respect to which the applicable Loan Party is the
beneficiary of a third party indemnification agreement which is
supported by a letter of credit or other credit facility, in either
case in form and substance acceptable to the Administrative Agent, and
which third party indemnification agreement is otherwise acceptable to
the Administrative Agent, and (II) in all cases, such liabilities shall
be determined net of insurance proceeds received (or to be received) by
the applicable Loan Party in connection with such liability) in excess
of, together with all other occurrences described in clauses Section
4.01(m) (iv), (v), and (vi), $25 million in the aggregate pursuant to
Environmental Laws or Environmental Permits.
(v) Neither any Loan Party nor any of its Subsidiaries is
undertaking, and has not completed, either individually or together
with other potentially responsible parties, any investigation or
assessment or remedial or response action relating to any actual or
threatened release, discharge or disposal of Hazardous Materials at any
site, location or operation, pursuant to the order under Environmental
Law of any governmental or regulatory authority which would reasonably
be expected to result in liability ((I) excluding (A) liabilities
71
incurred in the ordinary cause of business, and (B) liabilities with
respect to which the applicable Loan Party is the beneficiary of a
third party indemnification agreement which is supported by a letter of
credit or other credit facility, in either case in form and substance
acceptable to the Administrative Agent, and which third party
indemnification agreement is otherwise acceptable to the Administrative
Agent, and (II) in all cases, such liabilities shall be determined net
of insurance proceeds received (or to be received) by the applicable
Loan Party in connection with such liability) in excess of, together
with all other occurrences described in clauses Section 4.01(m) (iv),
(v), and (vi), $25 million in the aggregate.
(vi) No wastes generated at, stored at, or transported to or
from any property currently or formerly owned or operated by any Loan
Party or any of its Subsidiaries have been disposed of in a manner that
would reasonably be expected to result in liability ((I) excluding (A)
liabilities incurred in the ordinary cause of business, and (B)
liabilities with respect to which the applicable Loan Party is the
beneficiary of a third party indemnification agreement which is
supported by a letter of credit or other credit facility, in either
case in form and substance acceptable to the Administrative Agent, and
which third party indemnification agreement is otherwise acceptable to
the Administrative Agent, and (II) in all cases, such liabilities shall
be determined net of insurance proceeds received (or to be received) by
the applicable Loan Party in connection with such liability) in excess
of, together with all other occurrences described in clauses Section
4.01(m) (iv), (v), and (vi), $25 million in the aggregate pursuant to
Environmental Laws.
(n) Tax Matters. (i) Neither any Loan Party nor any of its
Subsidiaries is party to any tax sharing agreement other than the Tax
Agreement.
(ii) Each Loan Party and each of its Subsidiaries and
Affiliates has filed, has caused to be filed or has been included in
all Federal income and other material tax returns required to be filed
by or on behalf of it and has paid or caused to be paid all taxes shown
thereon to be due for its account, together with all tax assessments
imposed on them plus any applicable interest and penalties except for
those taxes contested in good faith and for which reserves have been
established in accordance with GAAP.
(iii) Set forth on Part I of Schedule 4.01(n) hereto is a
complete and accurate list, as of the date hereof, of each taxable year
of each Loan Party and each of its Subsidiaries and Affiliates for
which Federal income tax returns have been filed on behalf of each Loan
Party and for which the expiration of the applicable statute of
limitations for assessment or collection has not occurred by reason of
extension or otherwise (an "OPEN YEAR"). No issues have been raised by
the Internal Revenue Service in respect of Open Years that, in the
aggregate, could be reasonably expected to have a Material Adverse
Effect.
(iv) There are no proposed tax adjustments or tax assessments
in writing against the Borrower or any of its Subsidiaries in respect
of Open Years that if paid, collected or otherwise enforced on a Loan
Party would be reasonably likely to have a Material Adverse Effect.
72
(v) The aggregate unpaid amount, as of the date hereof, of
adjustments to the state, local and foreign tax liability of each Loan
Party and its Subsidiaries and Affiliates proposed in writing by all
state, local and foreign taxing authorities (other than amounts arising
from adjustments to Federal income tax returns) does not exceed $10
million. No issues have been raised by such taxing authorities that, in
the aggregate, could be reasonably likely to have a Material Adverse
Effect.
(vi) Based on current information and circumstances, neither
the Borrower nor any of its Subsidiaries expect any of the Borrowings
or Advances hereunder to be specifically identified (in whole or in
part) as a "reportable transaction" on Internal Revenue Service Form
8886 filed with U.S. Federal tax returns filed by them or the G-I
Holdings Tax Group for purposes of Section 6011, 6111 or 6112 of the
Internal Revenue Code or the Treasury Regulations promulgated
thereunder.
(o) Labor Matters. Neither the business nor the properties of
any Loan Party or any of its Subsidiaries are affected by any strike,
lockout or other labor dispute, that could be reasonably likely to have
a Material Adverse Effect.
(p) Surviving Debt. Set forth on Schedule 4.01(p) hereto is a
complete and accurate list of all Surviving Debt, showing as of the
date hereof the obligor and the principal amount outstanding
thereunder, the maturity date thereof and the amortization schedule
therefor.
(q) Existing Liens. Set forth on Schedule 4.01(q) hereto is a
complete and accurate list as of the date hereof of all Liens on the
property or assets of any Loan Party or any of its Subsidiaries,
showing the lienholder thereof, the principal amount of the obligations
secured thereby and the property or assets of such Loan Party or such
Subsidiary subject thereto.
(r) Owned Real Property. Set forth on Schedule 4.01(r) hereto
is a complete and accurate list as of the date hereof of all real
property owned by any Loan Party or any of its Subsidiaries, showing
the street address, city or other relevant jurisdiction, state, record
owner and book and estimated fair value thereof. Each Loan Party or
such Subsidiary has good, marketable and insurable fee simple title to
such real property, free and clear of all Liens, other than Liens
created or permitted by the Loan Documents.
(s) Leased Real Property. (1) Set forth on Schedule 4.01(s)(1)
hereto is a complete (except for non-material leases which (A) provide
for annual rental payments totaling in the aggregate (together with the
annual rental payments for all other leases not included on Schedule
4.01(s)(1) or Schedule 4.01(s)(2)) not more than $1 million, and (B)
have a term of not longer than five years) and accurate list as of the
date hereof of all leases of real property under which any Loan Party
or any of its Subsidiaries is the lessee, showing the street address,
city or other relevant jurisdiction, state, lessor, lessee, expiration
date and annual rental cost thereof. To the knowledge of the applicable
Loan Party or Subsidiary that is the lessee, each such lease is the
legal, valid and binding obligation of the lessor thereof, enforceable
in accordance with its terms.
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(2) To the knowledge of the applicable Loan Party or
Subsidiary that is the lessor, set forth on Schedule 4.01(s)(2) hereto
is a complete (except for non-material leases which (A) provide for
annual rental payments totaling in the aggregate (together with the
annual rental payments for all other leases not included on Schedule
4.01(s)(1) or Schedule 4.01(s)(2)) not more than $1 million, and (B)
have a term of not longer than five years) and accurate list as of the
date hereof of all leases of real property under which any Loan Party
is the lessor, showing as of the date hereof the street address, city
or other relevant jurisdiction, state, lessor, lessee, expiration date
and annual rental cost thereof. To the knowledge of the applicable Loan
Party or Subsidiary that is the lessor, each such lease is the legal,
valid and binding obligation of the lessee thereof, enforceable in
accordance with its terms.
(t) Investments. Set forth on Schedule 4.01(t) hereto is a
complete and accurate list as of the date hereof of all Investments
(other than Investments permitted under Section 5.02(f)(i) through
(iv)) held by any Loan Party or any of its Subsidiaries on the date
hereof, showing the amount, obligor or issuer and maturity, if any,
thereof.
(u) Intellectual Property. Set forth on Schedule 4.01(u)
hereto is a complete and accurate list as of the date hereof as of the
date hereof of all registered patents, trademarks, trade names, service
marks and copyrights, and all applications therefor and licenses
thereof, of each Loan Party or any of its Subsidiaries, showing the
jurisdiction in which registered, the registration number, the date of
registration and the expiration date.
(v) Material Contracts. Set forth on Schedule 4.01(v) hereto
is a complete and accurate list as of the date hereof of all Material
Contracts of each Loan Party and its Subsidiaries, showing the parties
and term thereof. Each such Material Contract has been duly authorized,
executed and delivered by each Loan Party party thereto, has not been
amended or otherwise modified, except as delivered prior to the date
hereof or in the case of modifications after the date of this
Agreement, as permitted under the Loan Documents, is in full force and
effect and is binding upon and enforceable against all parties thereto
in accordance with its terms, and there exists no default under any
Material Contract that would give the counterparty thereto the right to
terminate such Material Contract (after the expiration of any
applicable cure period).
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid,
any Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with ERISA and the Racketeer Influenced
74
and Corrupt Organizations Chapter of the Organized Crime Control Act of
1970.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all Federal income and other material taxes,
assessments and governmental charges or levies lawfully imposed upon it
or upon its property and (ii) all lawful claims that, if unpaid, might
by law become a Lien upon its property; provided, however, that neither
the Borrower nor any of its Subsidiaries shall be required to pay or
discharge any such Federal income or other material tax, assessment,
charge or claim that is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained
in conformity with GAAP, unless and until any Lien resulting therefrom
attaches to its property and becomes enforceable against its other
creditors.
(c) Compliance with Environmental Laws. Comply, cause each of
its Subsidiaries to comply, and use commercially reasonable efforts to
cause all lessees and other Persons operating or occupying its
properties to comply, in all material respects, with Environmental Laws
and Environmental Permits; obtain and renew, and cause each of its
Subsidiaries to obtain and renew, all material Environmental Permits
necessary for its operations and properties; and upon receipt of any
notification or otherwise obtaining knowledge of any release of
Hazardous Materials or other event that has a reasonable likelihood of
causing any Loan Party or any of its Subsidiaries to incur any material
liability pursuant to Environmental Laws, conduct, or pay for
consultants to conduct, any investigation, study, sampling and testing
reasonably necessary to evaluate the condition of the property, and
undertake any cleanup, removal, further investigation, and remedial or
other action required by Environmental Laws; provided, however, that
neither the Borrower nor any of its Subsidiaries shall be required to
undertake any such cleanup, removal, remedial or other action to the
extent that its obligation to do so is being contested in good faith
and by proper proceedings and appropriate reserves are being maintained
with respect to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its existence, legal structure, legal name, rights (charter and
statutory), permits, licenses, approvals, privileges and franchises;
provided, however, that the Borrower and its Subsidiaries may
consummate any merger or consolidation permitted under Section 5.02(d);
and provided further that neither the Borrower nor any of its
Subsidiaries shall be required to preserve any right, permit, license,
approval, privilege or franchise if the Board of Directors of the
Borrower or such Subsidiary shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the
Borrower or such Subsidiary, as the case may be, and that the loss
thereof is not disadvantageous in any material respect to the Borrower,
such Subsidiary or the Lender Parties; provided further that any
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Subsidiary Guarantor may be dissolved, provided that (i) no Event of
Default shall then exist and be continuing, (ii) all of the property of
such Subsidiary Guarantor shall be transferred to the Borrower or any
other Subsidiary Guarantor, and (iii) no such dissolution shall
adversely affect the Collateral (including the nature, status, quality
or value thereof) or the interest of the Collateral Agent therein.
(f) Visitation Rights. At any reasonable time and from time to
time and in each case, during normal business hours, permit the
Administrative Agent or the Collateral Monitoring Agent, or any agents
or representatives thereof, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
the Borrower and any of its Subsidiaries, to conduct appraisals and
field examinations and monitor the collateral as the Administrative
Agent or the Collateral Monitoring Agent may require, and to discuss
the affairs, finances and accounts of the Borrower and any of its
Subsidiaries with any of their officers or directors and with their
independent certified public accountants; provided, however, that any
such discussions shall be in the presence of a Responsible Officer of
the Borrower, so long as the Responsible Officers of the Borrower have
made reasonable efforts to make themselves available for such purpose.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(h) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted and
will from time to time make or cause to be made all appropriate
repairs, renewals and replacements thereof except where failure to do
so would not materially adversely affect the use of the related
property.
(i) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted under
the Loan Documents with any of their Affiliates (including, without
limitation, payments of any management fees) on terms that are fair and
reasonable and no less favorable to the Borrower or such Subsidiary
than it would obtain in a comparable arm's-length transaction with a
Person not an Affiliate.
(j) Covenant to Guarantee Obligations and Give Security. Upon
(x) the request of the Administrative Agent, following the occurrence
and during the continuance of a Default, (y) the formation or
acquisition of any new direct or indirect Subsidiaries by any Loan
Party or (z) the acquisition of any property by any Loan Party, and
such property, in the judgment of the Administrative Agent, shall not
already be subject to a perfected first priority security interest in
favor of the Collateral Agent for the benefit of the Secured Parties
(except to the extent the applicable Loan Party is prohibited by law or
contract), then in each case at the Borrower's reasonable expense:
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(i) in connection with the formation or acquisition
of a Subsidiary that is not (x) a CFC or (y) a Subsidiary that
is held directly or indirectly by a CFC, within 15 days after
such formation or acquisition, cause each such Subsidiary, and
cause each direct and indirect parent of such Subsidiary (if
it has not already done so), to duly execute and deliver to
the Collateral Agent, the Administrative Agent and/or the
Collateral Monitoring Agent a guaranty or guaranty supplement,
in form and substance satisfactory to the Collateral Agent,
guaranteeing the other Loan Parties' Obligations under the
Loan Documents,
(ii) within 15 days after such request, formation or
acquisition furnish to the Collateral Agent, the Collateral
Monitoring Agent and the Administrative Agent a description of
the real and personal properties of the Loan Parties and their
respective Subsidiaries which are, or are required in
accordance with the terms of the Loan Documents to become,
Loan Parties, in detail reasonably satisfactory to the
Collateral Agent, the Collateral Monitoring Agent and the
Administrative Agent,
(iii) within (x) 15 days after a request or
acquisition of personal property or (y) within 60 days after a
request or acquisition of real property, in each case, by any
Loan Party, (A) duly execute and deliver, and cause each Loan
Party to duly execute and deliver, to the Collateral Agent,
the Collateral Monitoring Agent and/or the Administrative
Agent such additional Mortgages, pledges, assignments,
security agreement supplements, intellectual property security
agreement supplements and other security agreements as
specified by, and in form and substance satisfactory to the
Collateral Agent and the Administrative Agent, securing
payment of all the Obligations of such Loan Party under the
Loan Documents and creating Liens on all such properties and
(B) such formation or acquisition of any new Subsidiary which
is, or is required to become, a Loan Party, duly execute and
deliver and cause each Subsidiary to duly execute and deliver
to the Collateral Agent Mortgages, pledges, assignments,
security agreement supplements, intellectual property security
agreement supplements and other security agreements as
specified by, and in form and substance satisfactory to the
Collateral Agent and the Administrative Agent, securing
payment of all of the Obligations of such Subsidiary under the
Loan Documents; provided that (A) the stock of any Subsidiary
held by a CFC shall not be pledged and (B) if such new
property is Equity Interests in a CFC, only 66% of such Equity
Interests shall be pledged in favor of the Secured Parties,
(iv) within 30 days after such request, formation or
acquisition, take, and cause each Loan Party and each newly
acquired or newly formed Subsidiary (other than any Subsidiary
that is a CFC or a Subsidiary that is held directly or
indirectly by a CFC) to take, whatever action (including,
without limitation, the recording of mortgages, the filing of
Uniform Commercial Code financing statements, the giving of
notices and the endorsement of notices on title documents) may
be necessary or reasonably advisable in the opinion of the
Collateral Agent and the Administrative Agent to vest in the
Collateral Agent and/or the Administrative Agent (or in any
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representatives of the Collateral Agent and/or the
Administrative Agent designated by such entity) valid and
subsisting Liens on the properties purported to be subject to
the mortgages, pledges, assignments, security agreement
supplements, intellectual property security agreement
supplements and security agreements delivered pursuant to this
Section 5.01(j), enforceable against all third parties in
accordance with their terms,
(v) within 60 days after such request, formation or
acquisition (or such later date as may be agreed to by the
Administrative Agent), deliver to the Collateral Agent, the
Collateral Monitoring Agent and/or the Administrative Agent,
upon the request of the Administrative Agent in its sole
discretion, exercised reasonably, a signed copy of a favorable
opinion, addressed to the Agents, the Collateral Agent and the
Lender Parties, of counsel for the Loan Parties acceptable to
the Administrative Agent as to (1) the matters contained in
clauses (i), (iii) and (iv) above, (2) such guaranties,
guaranty supplements, mortgages, pledges, assignments,
security agreement supplements, intellectual property security
agreement supplements and security agreements being legal,
valid and binding obligations of each Loan Party party thereto
enforceable in accordance with their terms, as to the matters
contained in clause (iv) above, (3) such recordings, filings,
notices, endorsements and other actions being sufficient to
create valid perfected Liens on such properties, and (4) such
other matters as the Administrative Agent may reasonably
request,
(vi) as promptly as practicable after such request,
formation or acquisition, deliver, upon the request of the
Administrative Agent in its sole discretion, to the Collateral
Agent, the Collateral Monitoring Agent and the Administrative
Agent with respect to each parcel of real property owned or
held by each Loan Party and each newly acquired or newly
formed Subsidiary (other than any Subsidiary that is a CFC or
a Subsidiary that is held directly or indirectly by a CFC)
title reports and title insurance, surveys and engineering,
soils and other reports, and environmental assessment reports,
each in scope, form and substance satisfactory to the
Collateral Agent, the Collateral Monitoring Agent and the
Administrative Agent, provided, however, that to the extent
that any Loan Party or any of its Subsidiaries shall have
otherwise received any of the foregoing items with respect to
such real property, such items shall, promptly after the
receipt thereof, be delivered to the Collateral Agent, the
Collateral Monitoring Agent and the Administrative Agent, and
(vii) at any time and from time to time, promptly
execute and deliver, and cause to execute and deliver, each
Loan Party and each newly acquired or newly formed Subsidiary
(other than any Subsidiary that is a CFC or a Subsidiary that
is held directly or indirectly by a CFC) any and all further
instruments and documents and take, and cause each Loan Party
and each newly acquired or newly formed Subsidiary (other than
any Subsidiary that is a CFC or a Subsidiary that is held
directly or indirectly by a CFC) to take, all such other
action as the Collateral Agent, the Collateral Monitoring
Agent and/or the Administrative Agent may reasonably deem
necessary in obtaining the full benefits of, or in perfecting
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and preserving the Liens of, such guaranties, mortgages,
pledges, assignments, security agreement supplements,
intellectual property security agreement supplements and
security agreements.
(k) Further Assurances. (i) Promptly upon request by the
Administrative Agent, correct, and cause each of its Subsidiaries
promptly to correct, any material defect or error that may be
discovered in any Loan Document or in the execution, acknowledgment,
filing or recordation thereof, and
(ii) Promptly upon request by the Administrative Agent, do,
execute, acknowledge, deliver, record, re-record, file, re-file,
register and re-register any and all such further acts, deeds,
conveyances, pledge agreements, mortgages, deeds of trust, trust deeds,
assignments, financing statements and continuations thereof,
termination statements, notices of assignment, transfers, certificates,
assurances and other instruments as the Administrative Agent may
reasonably require from time to time in order to (A) carry out more
effectively the purposes of the Loan Documents, (B) to the fullest
extent permitted by applicable law, subject any Loan Party's or any of
its Subsidiaries' properties, assets, rights or interests to the Liens
now or hereafter intended to be created by any of the Collateral
Documents, (C) perfect and maintain the validity, effectiveness and
priority of any of the Collateral Documents and any of the Liens
intended to be created thereunder and (D) assure, convey, grant,
assign, transfer, preserve, protect and confirm more effectively unto
the Secured Parties the rights granted or now or hereafter intended to
be granted to the Secured Parties under any Loan Document or under any
other instrument executed in connection with any Loan Document to which
any Loan Party or any of its Subsidiaries is or is to be a party, and
cause each of its Subsidiaries to do so.
(l) Performance of Tax Agreement. Perform and observe, and
cause each of its Subsidiaries to perform and observe, all of the terms
and provisions of the Tax Agreement to be performed or observed by it,
maintain the Tax Agreement in full force and effect, enforce the Tax
Agreement in accordance with its terms, and take all such action under
the Tax Agreement to such end as may be from time to time reasonably
requested by the Administrative Agent.
(m) Preparation of Environmental Reports. At the reasonable
request of the Administrative Agent from time to time (not to exceed
once per year for each such property, except during the continuance of
any Default), provide to the Administrative Agent within 60 days after
such request or such later date as may be agreed to by the
Administrative Agent, at the expense of the Borrower, an environmental
site assessment report for any of its or its Subsidiaries' properties
described in such request, prepared by an environmental consulting firm
acceptable to the Administrative Agent, indicating the presence or
absence of Hazardous Materials and the estimated cost of any
compliance, removal or remedial action in connection with any Hazardous
Materials on such properties, if any.
(n) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real
property to which the Borrower or any of its Subsidiaries is a party,
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keep such leases in full force and effect and not allow such leases to
lapse or be terminated or any rights to renew such leases to be
forfeited or cancelled, notify the Administrative Agent of any material
default of which it is aware by any party with respect to such leases
and cooperate with the Administrative Agent in all respects to cure any
such default by a Loan Party, and cause each of its Subsidiaries to do
so, except, in any case, where the failure to do so, either
individually or in the aggregate, could not be reasonably likely to
have a Material Adverse Effect.
(o) Cash Concentration Accounts. (i) Maintain the Cash
Collateral Account with Citibank, N.A. in accordance with the terms of
the Security Agreement, and from which accounts funds may only be
withdrawn with the consent of the Administrative Agent, provided,
however, that so long as no Event of Default shall have occurred and be
continuing, the Administrative Agent hereby consents and shall be
deemed to have granted such consent to the extent that (after giving
effect to any withdrawals) the aggregate amount of (x) excess
availability under the Facility, plus (y) the aggregate amount of cash
and Cash Equivalents held by the Borrower and its Subsidiaries in the
Cash Collateral Account equals or exceeds $35 million in the aggregate;
(ii) maintain, and cause each of its Subsidiaries to maintain, lockbox
accounts into which all proceeds of Collateral are paid with one or
more depository banks acceptable to the Administrative Agent that have
(subject to the provisions of the Collateral Documents) accepted the
assignment of such accounts to the Collateral Agent (or its agent
designated for such purpose) for the benefit of the Secured Parties
pursuant to the Security Agreement; and (iii) cause all amounts on
deposit in any deposit account to be transferred to the Cash Collateral
Account at the end of each Business Day, except with respect to deposit
accounts that the Borrower has (actual or deemed) approval from the
Administrative Agent to fund from the Cash Collateral Account pursuant
to Section 3.4(d)(v) of the Security Agreement.
(p) Performance of Material Contracts. Perform and observe all
the terms and provisions of each Material Contract to be performed or
observed by it, maintain each such Material Contract in full force and
effect, enforce each such Material Contract in accordance with its
terms, take all such action to such end as may be from time to time
requested by the Administrative Agent, and cause each of its
Subsidiaries to do so, except, in any case, where the failure to do so,
either individually or in the aggregate, could not be reasonably likely
to have a Material Adverse Effect.
(q) G-I Holdings. Upon the Administrative Agent's reasonable
request, but not more frequently than once per month, make a senior
officer of the Borrower available to provide to the Administrative
Agent (i) an update of developments in (A) the G-I Holdings bankruptcy
proceedings, and (B) any proceedings related to asserted Federal income
tax liabilities in connection with the Rhone Poulenc Transactions and
(ii) any information relating thereto that the Administrative Agent may
reasonably request.
(r) Reportable Transaction. The Borrower will notify the
Administrative Agent promptly in the event that the Borrower or any
other member of the G-I Holdings Tax Group specifically identifies any
of the Borrowings or Advances under this Agreement as a "reportable
transaction" on Internal Revenue Service Form 8886 filed with the U.S.
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Federal tax returns for purposes of Sections 6011, 6111 or 6112 of the
Internal Revenue Code or the Treasury Regulations promulgated
thereunder.
(s) Tax Liabilities. The Borrower (i) shall immediately inform
the Lenders with respect to the Rhone Poulenc Transactions of (A) any
written settlement proposal by any member of the G-I Holdings Tax Group
or any tax authority as to which the Borrower has knowledge, which
could require any Loan Party to incur liability or otherwise satisfy
such settlement in whole or in part; (B) any court ruling determining
tax liability or otherwise addressing the merits of the case; (C) any
proposed or actual assessment or deficiency as to which any Loan Party
or any member of the G-I Holdings Tax Group has knowledge; or (D) any
written demand for payment of taxes from a tax authority, and (ii)
shall provide any information available to them and reasonably required
by the Lenders to make the determination in Section 6.01(h)(i).
(t) Mortgage Amendments. Within 90 days after the Effective
Date (which time period may be extended in the sole discretion of the
Administrative Agent), the Borrower shall, and shall cause each
relevant Subsidiary to, as the case may be, furnish to the
Administrative Agent:
(i) Evidence that mortgage amendments (the "MORTGAGE
AMENDMENTS") with respect to the mortgages covering the
Previously Mortgaged Properties (each such mortgage, an
"EXISTING MORTGAGE") have been duly executed, acknowledged and
delivered by a duly authorized officer of each party thereto
on or before such date and are in form suitable for filing and
recording in all filing or recording offices that the
Administrative Agent may reasonably deem necessary;
(ii) Title searches by a title insurer reasonably
acceptable to the Administrative Agent with respect to the
property encumbered by the Existing Mortgages showing (x) no
Liens of record other than those created by or permitted under
the terms of the applicable Existing Mortgage and (y) that
title to the applicable property remains vested in the
appropriate Loan Party;
(iii) Flood hazard determinations with respect to
each of the Previously Mortgaged Properties to determine
whether any portion of each Previously Mortgaged Property is
located in an area identified by the Federal Emergency
Management Agency as an area having special flood hazards;
(iv) Such advice, as may be reasonably required by
the Administrative Agent, from local counsel in any
jurisdiction that may assess documentary stamp, mortgage,
intangible or other similar taxes on any Mortgage Amendment,
which local counsel shall be retained by the Borrower;
(v) Such other consents, agreements and confirmations
of lessors and third parties as the Administrative Agent may
reasonably deem necessary to effectuate the Mortgage
Amendments; and
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(vi) Evidence that all fees, costs and expenses have
been paid in connection with the preparation, execution,
filing and recordation of the Mortgage Amendments, including,
without limitation, reasonable attorneys' fees, filing and
recording fees, title insurance company coordination fees,
documentary stamp, mortgage, intangible or other similar taxes
and title search charges and other charges incurred in
connection with the recordation of the Mortgage Amendments and
the other matters described in this Section 5.01(t) and as
otherwise required to be paid in connection therewith under
Section 8.04 hereof.
SECTION 5.02. Negative Covenants. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will not, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to
exist, any Lien on or with respect to any of its properties of any
character (including, without limitation, accounts) whether now owned
or hereafter acquired, or sign or file or suffer to exist, or permit
any of its Subsidiaries to sign or file or suffer to exist, under the
Uniform Commercial Code of any jurisdiction, a financing statement that
names the Borrower or any of its Subsidiaries as debtor, or sign or
suffer to exist, or permit any of its Subsidiaries to sign or suffer to
exist, any security agreement authorizing any secured party thereunder
to file such financing statement, or assign, or permit any of its
Subsidiaries to assign, any accounts or other right to receive income,
except:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and described
on Schedule 4.01(q) hereto;
(iv) purchase money Liens upon or in real property or
equipment acquired or held by the Borrower or any of its
Subsidiaries in the ordinary course of business to secure the
purchase price of such property or equipment or to secure Debt
incurred solely for the purpose of financing the acquisition,
construction or improvement of any such property or equipment
to be subject to such Liens, or Liens existing on any such
property or equipment at the time of acquisition (other than
any such Liens created in contemplation of such acquisition
that do not secure the purchase price), or extensions,
renewals or replacements of any of the foregoing for the same
or a lesser amount, in each case, to the extent permitted
under Section 5.02(b)(iii)(B)(I); provided, however, that no
such Lien shall extend to or cover any property other than the
property or equipment being acquired, constructed or improved,
and no such extension, renewal or replacement shall extend to
or cover any property not theretofore subject to the Lien
being extended, renewed or replaced; and provided further that
the aggregate principal amount of the Debt secured by Liens
permitted by this clause (iv) shall not exceed the amount
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permitted with respect thereto under Section 5.02(b)(iii)(B)
at any time outstanding;
(v) Liens arising in connection with Capitalized
Leases permitted under Section 5.02(b)(iii)(B)(II); provided
that no such Lien shall extend to or cover any Collateral or
assets other than the assets subject to such Capitalized
Leases; and provided, further that the aggregate principal
amount of the Debt secured by Liens permitted by this clause
(v) shall not exceed the amount permitted with respect thereto
under Section 5.02(b)(iii)(B) at any time outstanding;
(vi) Liens on fixed assets to secure Debt permitted
under Section 5.02(b)(iii)(B)(III); provided, that the
aggregate principal amount of the Debt secured by Liens
permitted by this clause (vi) shall not exceed the amount
permitted with respect thereto under Section 5.02(b)(iii)(B)
at any time outstanding;
(vii) Liens arising in connection with sale-leaseback
transactions permitted under Section 5.02(b)(iii)(B)(IV);
provided that no such Lien shall extend to or cover any
Collateral or assets other than the assets subject to such
sale-leaseback transactions; and provided, further that the
aggregate principal amount of the Debt secured by Liens
permitted by this clause (vii) shall not exceed the amount
permitted with respect thereto under Section 5.02(b)(iii)(B)
at any time outstanding;
(viii) Liens to secure Debt permitted under Section
5.02(b)(iii)(J);
(ix) the replacement, extension or renewal of any
Lien permitted by clauses (iii) through (vii) above upon or in
the same property theretofore subject thereto or the
replacement, extension or renewal (without increase in the
amount or change in any direct or contingent obligor) of the
Debt secured thereby; provided, that the aggregate principal
amount of the Debt secured by Liens permitted by this clause
(ix) (excluding the replacement, extension or renewal of any
Lien permitted by clause (iii) above) shall not exceed the
applicable amount permitted with respect thereto under Section
5.02(b)(iii)(B) or (E), as the case may be, at any time
outstanding; and
(x) Liens arising in connection with operating leases
to the extent such operating leases are otherwise permitted
hereunder; provided that no such Lien shall extend to or cover
any Collateral or assets other than the assets subject to such
operating leases.
(b) Debt. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist,
any Debt, except:
(i) in the case of the Borrower, Debt owed to a
wholly owned Subsidiary of the Borrower which is a Subsidiary
Guarantor, which Debt (x) shall constitute Pledged Debt and
(y) shall be evidenced by promissory notes in form and
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substance satisfactory to the Administrative Agent and such
promissory notes shall, in the case of Debt owed to a Loan
Party, be pledged as security for the Obligations of the
holder thereof under the Loan Documents to which such holder
is a party and delivered to the Collateral Agent pursuant to
the terms of the Security Agreement;
(ii) in the case of any Subsidiary of the Borrower,
Debt owed to the Borrower or to a wholly owned Subsidiary of
the Borrower, provided that, in each case, such Debt (w) shall
be permitted under Section 5.02(f), (x) shall, in the case of
Debt owed to a Loan Party, constitute Pledged Debt and (y)
shall be evidenced by promissory notes in form and substance
satisfactory to the Administrative Agent and such promissory
notes shall, in the case of Debt owed to a Loan Party, be
pledged as security for the Obligations of the holder thereof
under the Loan Documents to which such holder is a party and
delivered to the Collateral Agent pursuant to the terms of the
Security Agreement; and
(iii) in the case of the Borrower and its
Subsidiaries,
(A) Debt under the Loan Documents,
(B) So long as (1) no Default has occurred
and is continuing (both at the time of such
incurrence and after giving pro forma effect
thereto), and (2) after giving effect to such
incurrence, the Borrower shall be in pro forma
compliance with the provisions of Section 5.04, if
applicable (such compliance to be determined on the
basis of the required financial information most
recently delivered to the Administrative Agent and
the Lender Parties as though such Debt had been
incurred as of the first day of the fiscal period
covered thereby), (I) Debt secured by Liens permitted
by Section 5.02(a)(iv), (II) Capitalized Leases
permitted by Section 5.02(a)(v), (III) Debt secured
by Liens on the Borrower's or any of its
Subsidiaries' fixed assets, and (IV) Debt in respect
of sale-leaseback transactions permitted by Section
5.02(a)(vii), provided, however, that (i) such Debt
incurred pursuant to this Section 5.02(b)(iii)(B)
shall not have scheduled amortization payments prior
to the Termination Date in an aggregate principal
amount in any Fiscal Year (together with the
aggregate scheduled amortization payments in any
Fiscal Year prior to the Termination Date of any Debt
permitted pursuant to clauses (C), (E) and (J) below)
greater than the Amortization Basket, and (ii) (a)
Debt incurred pursuant to clauses (I), (II) and (IV)
of this Section 5.02(b)(iii)(B) shall not exceed $100
million in the aggregate during the term of this
Agreement, and (b) Debt incurred pursuant to clause
(III) of this Section 5.02(b)(iii)(B) shall not
exceed $200 million in the aggregate during the term
of this Agreement.
(C) So long as (1) no Default has occurred
and is continuing (both at the time of such
incurrence and after giving pro forma effect
thereto), and (2) after giving effect to such
incurrence, the Borrower shall be in pro forma
84
compliance with the provisions of Section 5.04, if
applicable (such compliance to be determined on the
basis of the required financial information most
recently delivered to the Administrative Agent and
the Lender Parties as though such Debt had been
incurred as of the first day of the fiscal period
covered thereby), Debt extending the maturity of, or
refunding or refinancing, in whole or in part
(without any increase in the principal amount thereof
or any change in any direct or contingent obligor
thereof), any Debt under the Existing Indentures,
provided that (x) the terms and conditions of such
extending, refunding or refinancing Debt are market
terms and conditions at the time of such extension,
refunding or refinancing, (y) there are no scheduled
amortization payments in respect of such extending,
refunding or refinancing Debt prior to the
Termination Date in an aggregate principal amount in
any Fiscal Year (together with the aggregate
scheduled amortization payments in any Fiscal Year
prior to the Termination Date of any Debt permitted
pursuant to clause (B) above and clauses (E) and (J)
below) greater than the Amortization Basket and (z)
any security arrangements in respect of such
extended, refunded or refinanced Debt shall be no
more onerous to the Lender Parties than those set
forth in the security documentation in effect at such
time; provided, further, that any Net Cash Proceeds
received by the Borrower in connection with any
refinancing of Debt issued under any of the Existing
Indentures shall be applied within one Business Day
to prepay Revolving Credit Advances, in which event
(x) any Net Cash Proceeds in excess of the aggregate
amount of outstanding Revolving Credit Advances shall
be deposited and held either in a Deposit Account or
a Security Account (as each term is defined in the
Security Agreement) and (y) the Administrative Agent
shall establish a reserve against the Loan Value
equal to the principal amount of the Senior Notes
being refinanced plus the amount of unpaid interest
on such Senior Notes as of the redemption date plus
the premium, fees and expenses payable in connection
with the redemption of such Senior Notes, which
reserve the Administrative Agent will reduce on the
Business Day following receipt of written
certification by a Responsible Financial Officer of
the Borrower that the Borrower will redeem Senior
Notes with the proceeds of a Revolving Credit Advance
within three Business Days of the date of such
notice, together with a Notice of Borrowing for such
Revolving Credit Advance,
(D) The Surviving Debt,
(E) So long as (1) no Default has occurred
and is continuing (both at the time of such
incurrence and after giving pro forma effect
thereto), and (2) after giving effect to such
incurrence, the Borrower shall be in pro forma
compliance with the provisions of Section 5.04, if
applicable (such compliance to be determined on the
basis of the required financial information most
recently delivered to the Administrative Agent and
the Lender Parties as though such Debt had been
incurred as of the first day of the fiscal period
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covered thereby), Debt extending the maturity of, or
refunding or refinancing, in whole or in part
(without any increase in the principal amount thereof
or any change in any direct or contingent obligor
thereof), any Debt described in clause (B) above and
any other Surviving Debt (other than Debt issued
pursuant to the Existing Indentures) of the type
described in clause (B) above, provided that (x)
there are no remaining scheduled amortization
payments in respect of such extending, refunding or
refinancing Debt prior to December 31, 2011 that is
more onerous than the remaining scheduled
amortization prior to December 31, 2011, if any,
applicable to the Debt being extended, refunded or
refinanced, (y) any security arrangements in respect
of such extended, refunded or refinanced Debt shall
be no more onerous to the Lender Parties than those
set forth in the security documentation in effect at
such time, and (z) there are no scheduled
amortization payments of principal in respect of such
Debt prior to the Termination Date in an aggregate
principal amount in any Fiscal Year (together with
the aggregated scheduled amortization payments in any
Fiscal Year prior to the Termination Date of any Debt
permitted pursuant to clauses (B) and (C) above and
clause (J) below) greater than the Amortization
Basket; provided further that the principal amount of
such Debt being extended, refunded or refinanced
shall not be increased above the principal amount
thereof outstanding immediately prior to such
extension, refunding or refinancing and the direct
and contingent obligors therefor shall not be changed
as a result of or in connection with such extension,
refunding or refinancing,
(F) So long as (1) no Default has occurred
and is continuing (both at the time of such
incurrence and after giving pro forma effect
thereto), and (2) after giving effect to such
incurrence, the Borrower shall be in pro forma
compliance, with the provisions of Section 5.04, if
applicable (such compliance to be determined on the
basis of the required financial information most
recently delivered to the Administrative Agent and
the Lender Parties as though such Debt had been
incurred as of the first day of the fiscal period
covered thereby), unsecured, subordinated Debt owing
to G-I Holdings or BMCA Holdings; provided, however,
that no payments shall be made with respect to Debt
permitted under this clause (F) unless after giving
effect to each such payment, the Available Liquidity
(as certified to the Administrative Agent by a
Responsible Financial Officer of the Borrower) shall
be least $25 million,
(G) Debt consisting of surety bonds or
similar instruments in favor of government agencies
in connection with workers' compensation liabilities,
taxes, assessments or other obligations, provided
that such Debt is incurred in the ordinary course of
business,
(H) Debt of any entity acquired by the
Borrower or its Subsidiaries in accordance with the
terms hereof so long as (i) such Debt was incurred
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prior to such acquisition (and not in connection with
or contemplation of, such acquisition), (ii) both
before and after giving effect to such acquisition,
no Default or Event of Default shall exist, and (iii)
such Debt has no additional direct, indirect or
contingent obligor,
(I) Debt of any Loan Party consisting of
Contingent Obligations in respect of Debt of other
Loan Parties, so long as such other Loan Parties are
permitted to incur such Debt hereunder, and
(J) So long as (1) no Default has occurred
and is continuing (both at the time of such
incurrence and after giving pro forma effect
thereto), and (2) after giving effect to such
incurrence, the Borrower shall be in pro forma
compliance, with the provisions of Section 5.04, if
applicable (such compliance to be determined on the
basis of the required financial information most
recently delivered to the Administrative Agent and
the Lender Parties as though such Debt had been
incurred as of the first day of the fiscal period
covered thereby), Debt ranked junior (in respect of
any Liens securing such Debt, which Liens shall be
ranked junior to the Liens securing the Senior
Facility) to the Senior Facility , provided that
there are no scheduled amortization payments of
principal in respect of such Debt prior to the
Termination Date in an aggregate principal amount in
any Fiscal Year (together with the aggregated
scheduled amortization payments in any Fiscal Year
prior to the Termination Date of any Debt permitted
pursuant to clauses (B), (C) and (E) above) greater
than the Amortization Basket.
(c) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business
as carried on at the date hereof (other than as a result of an
Investment permitted by Section 5.02(f)(vii)(B) involving complementary
lines of business).
(d) Mergers, Etc. Merge into or consolidate with any Person or
permit any Person to merge into it, or permit any of its Subsidiaries
to do so, except that:
(i) any Subsidiary of the Borrower may merge into or
consolidate with any other Subsidiary of the Borrower,
provided that, in the case of any such merger or
consolidation, the Person formed by such merger or
consolidation shall be a wholly owned Subsidiary of the
Borrower, provided further that, in the case of any such
merger or consolidation to which a Subsidiary Guarantor is a
party, the Person formed by such merger or consolidation shall
be a Subsidiary Guarantor;
(ii) in connection with any acquisition permitted
under Section 5.02(f), any Subsidiary of the Borrower may
merge into or consolidate with any other Person or permit any
other Person to merge into or consolidate with it; provided
that (x) the Person surviving such merger shall be a wholly
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owned direct or indirect Subsidiary of the Borrower and (y) in
the case of any such merger or consolidation to which a
Subsidiary Guarantor is a party, the Person formed by such
merger or consolidation shall be a Subsidiary Guarantor;
(iii) in connection with any sale or other
disposition permitted under Section 5.02(e) (other than clause
(ii) thereof), any Subsidiary of the Borrower may merge into
or consolidate with any other Person or permit any other
Person to merge into or consolidate with it; and
(iv) any of the Borrower's Subsidiaries may merge
into the Borrower; provided that the Person surviving such
merger shall be the Borrower.
provided, however, that in each case, immediately before and after
giving effect thereto, no Event of Default shall have occurred and be
continuing and, in the case of any such merger to which the Borrower is
a party, the Borrower is the surviving corporation.
(e) Sales, Etc., of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer
or otherwise dispose of, any assets, or grant any option or other right
to purchase, lease or otherwise acquire any assets, except:
(i) Certain Permitted Dispositions;
(ii) in a transaction authorized by Section 5.02(d)
(other than subsection (iii) thereof);
(iii) the sale of any (x) asset identified on
Schedule 5.02(e) hereto (such assets being "EXCLUDED ASSETS")
or (y) any other assets in any Fiscal Year by the Borrower or
any Subsidiary, the fair market value of which is not greater
than $100 million, provided that any unused portion thereof
may be carried forward to any succeeding year, provided,
further, that the fair market value of all assets sold by the
Borrower or any Subsidiary during the term of this Agreement
shall in no event be greater than $375 million in the
aggregate (the foregoing asset sales described in clauses (x)
and (y) above being collectively, "PERMITTED ASSET SALES") so
long as in each case (A) the terms of any such sale shall be
commercially reasonable, (B) the purchase price paid to the
Borrower or such Subsidiary for such asset shall be no less
than the fair market value of such asset at the time of such
sale and (C) at least 66 2/3% of the purchase price for such
asset shall be paid to the Borrower or such Subsidiary solely
in cash;
(iv) sales by means of a lease or sublease of
property of the Borrower or any of its Subsidiaries, so long
as (x) such transaction is permitted pursuant to Section
5.02(b) and (y) the Borrower or such Subsidiary continues to
reflect ownership of such property in its financial statements
in accordance with GAAP;
(v) assignments and licenses of intellectual property
of the Borrower and its Subsidiaries in the ordinary course of
business; and
(vi) dispositions of property not to exceed an
aggregate fair market value of $10 million in the aggregate,
which in the commercially reasonable opinion of the Borrower
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or such Subsidiary, and consistent with historic business
practice, is obsolete;
provided that in the case of sales of assets pursuant to clauses (i),
(iii), (iv), and (vi) above, the Borrower shall, on the date of receipt
by any Loan Party or any of its Subsidiaries of the Net Cash Proceeds
from such sale, prepay the Advances pursuant to, to the extent and in
the amount and order of priority set forth in, Section 2.06(b)(i), as
specified therein.
(f) Investments in Other Persons. Make or hold, or permit any
of its Subsidiaries to make or hold, any Investment in any Person,
except:
(i) (A) equity Investments by the Borrower and its
Subsidiaries in their Subsidiaries outstanding on the date
hereof, (B) additional Investments in Loan Parties and (C)
additional Investments by Subsidiaries of the Borrower that
are not Loan Parties in other such Subsidiaries;
(ii) so long as (1) no Default or Event of Default
has occurred and is continuing (both at the time of such
Investment and after giving pro forma effect thereto), and (2)
after giving effect to such Investment the Available Liquidity
(as certified to the Administrative Agent by a Responsible
Financial Officer of the Borrower), shall equal or exceed the
Specified Liquidity Amount, Investments in Non-Recourse
Subsidiaries or any other Persons that are not Loan Parties,
excluding G-I Holdings and BMCA Holdings (collectively,
"PERMITTED ADVANCES");
(iii) loans and advances to employees in the ordinary
course of the business of the Borrower and its Subsidiaries as
presently conducted in an aggregate principal amount not to
exceed $2.5 million at any time outstanding;
(iv) Investments by the Borrower and its Subsidiaries
in Cash Equivalents;
(v) Investments existing on the date hereof and
described on Schedule 4.01(t) hereto;
(vi) Investments by the Borrower in Hedge Agreements
to the extent permitted under Section 5.02(s);
(vii) the purchase or other acquisition (a "PERMITTED
ACQUISITION") of all of the Equity Interests in, or all or
substantially all of the property and assets of, any Person
that, upon the consummation thereof, will be wholly owned
directly by the Borrower or one or more of its wholly owned
Subsidiaries (including, without limitation, as a result of a
merger or consolidation); provided that, with respect to each
purchase or other acquisition made pursuant to this clause
(vii):
(A) any such newly created or acquired
Subsidiary shall comply with the requirements of
Section 5.01(j);
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(B) the lines of business of the Person to
be (or the property and assets of which are to be) so
purchased or otherwise acquired shall be (a)
substantially the same lines of business as, or (b)
lines of business complementary to, one or more of
the principal businesses of the Borrower and its
Subsidiaries in the ordinary course;
(C) such purchase or other acquisition shall
not include or result in any contingent liabilities
that could reasonably be expected to result in a
Material Adverse Change (as determined in good faith
by the board of directors (or the persons performing
similar functions) of the Borrower or such Subsidiary
if the board of directors is otherwise approving such
transaction;
(D) (1) immediately before and immediately
after giving pro forma effect to any such Permitted
Acquisition, no Default or Event of Default shall
have occurred and be continuing, (2) immediately
after giving effect to such purchase or other
acquisition, the Available Liquidity (as certified to
the Administrative Agent by a Responsible Financial
Officer of the Borrower) shall equal or exceed the
Specified Liquidity Amount, and (3) the Borrower and
its Subsidiaries shall be in pro forma compliance
with the covenant set forth in Section 5.04, if
applicable (each of (1), (2) and (3) above to be
determined on the basis of the required financial
information most recently delivered to the
Administrative Agent and the Lender Parties as though
such purchase or other acquisition had been
consummated as of the first day of the fiscal period
covered thereby); and
(E) the Borrower shall have delivered to the
Administrative Agent, on behalf of the Lender
Parties, at least three Business Days prior to the
date on which any such purchase or other acquisition
is to be consummated, a certificate of a Responsible
Officer, in form and substance reasonably
satisfactory to the Administrative Agent, certifying
that all of the requirements set forth in this clause
(vii) have been satisfied or will be satisfied on or
prior to the consummation of such Permitted
Acquisition;
provided, however, that the property and assets so
purchased or acquired shall not be considered to be Eligible
Collateral until so determined by the Administrative Agent and
the Collateral Monitoring Agent after the performance of due
diligence with results reasonably satisfactory to the
Administrative Agent and the Collateral Monitoring Agent
applying their customary criteria for determining eligibility;
(viii) Investments in any "strategic alliance" joint
marketing arrangement, provided that such Investments do not
exceed $10 million in the aggregate for any Fiscal Year;
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(ix) (a) Investments consisting of Initial G-I
Holdings Letters of Credit or substitutions thereof (as
described in, and subject to Section 5.02(g)(iv)) and (b)
subject to Section 5.02(g), Investments consisting of Future
G-I Letters of Credit and renewals thereof;
(x) So long as the provisions of Section 5.02(g)(iii)
are satisfied (determined as if such Investment were a
payment, dividend or distribution described in Section
5.02(g)), Investments (other than Investments described in
clause (ix) above) in G-I Holdings and BMCA Holdings; and
(g) Restricted Payments. Declare or pay any dividends,
purchase, redeem, retire, defease or otherwise acquire for value any of
its Equity Interests now or hereafter outstanding, return any capital
to its stockholders, partners or members (or the equivalent Persons
thereof) as such, make any distribution of assets, Equity Interests,
obligations or securities to its stockholders, partners or members (or
the equivalent Persons thereof) as such or issue or sell any Equity
Interests, or permit any of its Subsidiaries to do any of the
foregoing, or permit any of its Subsidiaries to purchase, redeem,
retire, defease or otherwise acquire for value any Equity Interests in
the Borrower or to issue or sell any Equity Interests therein, except
that, so long as no Event of Default shall have occurred and be
continuing at the time of any action described below or would result
therefrom:
(i) the Borrower may declare and pay dividends and
distributions payable only in common stock of the Borrower;
(ii) any Subsidiary of the Borrower may (A) declare
and pay cash dividends to the Borrower, (B) declare and pay
cash dividends to any other wholly owned Subsidiary of the
Borrower of which it is a Subsidiary and (C) accept capital
contributions from its parent to the extent permitted under
Section 5.02(f);
(iii) so long as (a) both at the time of such
payment, dividend or other distribution and after giving pro
forma effect thereto, no Default or Event of Default has
occurred and is continuing, and (b) after giving effect to
such payment, dividend or other distribution, the Available
Liquidity (as certified to the Administrative Agent by a
Responsible Financial Officer of the Borrower) shall equal or
exceed (i) so long as, substantially simultaneously with such
payment, dividend or other distribution, a loan or
contribution in an equal amount is made to the Borrower, $25
million or (ii) otherwise, the Specified Liquidity Amount (to
be determined on the basis of the required financial
information most recently delivered to the Administrative
Agent and the Lender Parties as though such payment, dividend
or other distribution had been made as of the first day of the
fiscal period covered thereby), the Borrower shall be
permitted to make payments, dividends or other distributions
to G-I Holdings and BMCA Holdings Corporation in any calendar
year, and
(iv) Investments consisting of the Initial G-I
Holdings Letters of Credit, or any substitution of such
Initial G-I Holdings Letter of Credit (simultaneously with the
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cancellation, expiration or other termination of such Initial
G-I Holdings Letter of Credit) for a contribution of cash or
the posting of a bond or similar instrument by any Loan Party
solely to the extent that cash, bond or similar instrument is
used to secure payment for the same obligation (and for the
benefit of the same beneficiary) as such Initial G-I Holdings
Letter of Credit so substituted.
(h) Amendments of Constitutive Documents. Amend, or permit any
of its Subsidiaries to amend, its certificate of incorporation or
bylaws or other constitutive documents other than amendments that could
not be reasonably expected to have a Material Adverse Effect.
(i) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in (i) accounting policies
or reporting practices, except as required or permitted by generally
accepted accounting principles, or (ii) such Person's Fiscal Year.
(j) Prepayments, Etc., of Debt. Prepay, redeem, purchase,
defease, exchange or otherwise satisfy prior to the scheduled maturity
thereof in any manner, or make any payment in violation of any
subordination terms of, any Debt (each, a "PREPAYMENT"), except (i) the
prepayment of the Advances in accordance with the terms of this
Agreement, (ii) regularly scheduled or required repayments or
redemptions of Surviving Debt and (iii) so long as, in each case, both
at the time of such payment and after giving pro forma effect thereto,
(x) no Default or Event of Default shall have occurred and be
continuing, and (y) after giving effect to such transaction, the
Available Liquidity (as certified to the Administrative Agent by a
Responsible Financial Officer of the Borrower) shall equal or exceed
(A) in the case of any prepayment of Debt owing to G-I Holdings or BMCA
Holdings Corporation, $25 million or (B) otherwise, the Specified
Liquidity Amount, prepayment of any Debt ("PERMITTED DEBT
REPURCHASES"); or, if the Loan Parties, the Administrative Agent or the
Lenders will be materially and adversely affected thereby, amend,
modify or change in any material manner any term or condition of any
Surviving Debt or Subordinated Debt, or permit any of its Subsidiaries
to do any of the foregoing other than to prepay any Debt payable to the
Borrower or any other Loan Party.
(k) Amendment, Etc., of the Tax Agreement. Except to the
extent such action could not reasonably be expected to result in a
Material Adverse Effect, cancel or terminate the Tax Agreement or
consent to or accept any cancellation or termination thereof, amend,
modify or change in any manner any term or condition of any the Tax
Agreement or give any consent, waiver or approval thereunder, waive any
default under or any breach of any term or condition of the Tax
Agreement, agree in any manner to any other amendment, modification or
change of any term or condition of the Tax Agreement or take any other
action in connection with the Tax Agreement that would impair the value
of the interest or rights of any Loan Party thereunder or that would
impair the rights or interests of any Agent or any Lender Party, or
permit any of its Subsidiaries to do any of the foregoing.
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(l) Negative Pledge. Enter into or suffer to exist, or permit
any of its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien upon
any of its property or assets except (i) in favor of the Secured
Parties or (ii) in connection with (A) any Surviving Debt, or (B) any
purchase money Debt permitted by Section 5.02(b)(iii)(B) solely to the
extent that the agreement or instrument governing such Debt prohibits a
Lien on the property acquired with the proceeds of such Debt, or (C)
any Capitalized Lease permitted by Section 5.02(b)(iii)(B) solely to
the extent that such Capitalized Lease prohibits a Lien on the property
subject thereto.
(m) Partnerships, Etc. Become a general partner in any general
or limited partnership or joint venture, or permit any of its
Subsidiaries to do so, other than any Subsidiary the sole assets of
which consist of its interest in such partnership or joint venture.
(n) Speculative Transactions. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity options
or futures contracts or any similar speculative transactions.
(o) Capital Expenditures. Make, or permit any of its
Subsidiaries to make, any Capital Expenditures that would cause the
aggregate of all such Capital Expenditures made by the Borrower and its
Subsidiaries, in any calendar year commencing with calendar year 2007,
to exceed the sum of (A) (x) in calendar year 2007, $150 million, (y)
in calendar year 2008, $125 million or (z) in each calendar year
thereafter, $115 million (each of (x), (y) or (z), as applicable, the
"BASE CAPEX BASKET"), plus (B) in each calendar year the amount (if
any) of the Base CAPEX Basket which was not used during any preceding
calendar year up to a maximum carry-over under this clause (B) of $100
million plus (C) in each calendar year, such additional amount that
after giving effect to such Capital Expenditure made pursuant to this
clause (C), the Available Liquidity shall equal or exceed the Specified
Liquidity Amount.
(p) Formation of Subsidiaries. Organize or invest, or permit
any of its Subsidiaries to organize or invest, in any new Subsidiary
except as permitted under Section 5.02(f).
(q) Payment Restrictions Affecting Subsidiaries. Directly or
indirectly, enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement or
arrangement limiting the ability of any of its Subsidiaries to declare
or pay dividends or other distributions in respect of its Equity
Interests or repay or prepay any Debt owed to, make loans or advances
to, or otherwise transfer assets to or invest in, the Borrower or any
Subsidiary of the Borrower (whether through a covenant restricting
dividends, loans, asset transfers or investments, a financial covenant
or otherwise), except (i) the Loan Documents, and (ii) any agreement or
instrument evidencing Surviving Debt.
(r) Amendment, Etc., of Material Contracts. Except to the
extent such action could not reasonably be expected to result in a
Material Adverse Effect, cancel or terminate any Material Contract or
consent to or accept any cancellation or termination thereof, amend or
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otherwise modify any Material Contract or give any consent, waiver or
approval thereunder, waive any default under or breach of any Material
Contract, agree in any manner to any other amendment, modification or
change of any term or condition of any Material Contract or take any
other action in connection with any Material Contract that would impair
the value of the interest or rights of any Loan Party thereunder or
that would impair the interest or rights of any Agent or any Lender
Party, or permit any of its Subsidiaries to do any of the foregoing.
(s) Hedge Agreements. Become a party to any Hedge Agreements
other than non-speculative Hedge Agreements entered into in the
ordinary course of business and consistent with prudent business
practice to hedge against fluctuations in interest rates, commodity
prices and foreign exchange rates.
SECTION 5.03. Reporting Requirements. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid,
any Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will furnish to the Agents and the Lender
Parties:
(a) Default Notice. As soon as possible and in any event
within two days after the occurrence of each Default or any event,
development or occurrence reasonably likely to have a Material Adverse
Effect continuing on the date of such statement, a statement of the
chief financial officer of the Borrower setting forth details of such
Default and the action that the Borrower has taken and proposes to take
with respect thereto.
(b) Annual Financials. As soon as available and in any event
within 95 days after the end of each Fiscal Year, a copy of the annual
audit report for such year for the Borrower and its Subsidiaries,
including therein a Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such Fiscal Year and a Consolidated
statement of income and a Consolidated statement of cash flows of the
Borrower and its Subsidiaries for such Fiscal Year, in each case
accompanied by an opinion acceptable to the Required Lenders of KPMG or
other independent public accountants of recognized standing acceptable
to the Required Lenders, together with (i) a schedule, certified by a
Responsible Financial Officer of the Borrower, in form reasonably
satisfactory to the Administrative Agent setting forth (w) the Leverage
Ratio on the last day of such Fiscal Year, (x) the Interest Coverage
Ratio for such Fiscal Year, (y) the Capital Expenditures for such
Fiscal Year, and (z) the computations used by the Borrower in
determining compliance with the covenant contained in Section 5.04,
when applicable, provided that in the event of any change in generally
accepted accounting principles used in the preparation of such
financial statements, the Borrower shall also provide, if necessary for
the determination of any of (w), (x), (y) or (z) above, a statement of
reconciliation conforming such financial statements to GAAP and (ii) a
certificate of a Responsible Financial Officer of the Borrower stating
that no Event of Default has occurred and is continuing or, if an Event
of Default has occurred and is continuing, a statement as to the nature
thereof and the action that the Borrower has taken and proposes to take
with respect thereto.
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(c) Quarterly Financials. As soon as available and in any
event within 50 days after the end of each of the first three quarters
of each Fiscal Year (i) so long as the Borrower is a reporting company
under the Securities Act of 1934, as amended (a "Reporting Company"), a
copy of the Borrowers Form 10Q filed with the Securities and Exchange
Commission for each such fiscal quarter and (ii) if the Borrower is not
a Reporting Company at such time, then the Borrower shall provide to
the Administrative Agent the unaudited Consolidated balance sheet of
the Borrower and its Subsidiaries at the end of such quarter and the
related unaudited Consolidated statements of income and of cash flows
for such quarter and the portion of the Fiscal Year through end of such
fiscal quarter, setting forth in each case in comparative form the
figures as of the end of and for the corresponding period in the
previous Fiscal Year, in each case duly certified (subject to normal
year-end audit adjustments) by a Responsible Financial Officer of the
Borrower as having been prepared in accordance with GAAP, together with
(1) a certificate of said officer stating that no Event of Default has
occurred and is continuing or, if an Event of Default has occurred and
is continuing, a statement as to the nature thereof and the action that
the Borrower has taken and proposes to take with respect thereto, and
(2) a schedule to such certificate in form reasonably satisfactory to
the Administrative Agent setting forth (x) the Leverage Ratio as of the
last day of such fiscal quarter, (y) the Interest Coverage Ratio for
the four fiscal quarters of the Borrower ending on the last day of such
fiscal quarter, and (z) the computations used by the Borrower in
determining compliance with the covenant contained in Section 5.04,
when applicable, provided that in the event of any change in generally
accepted accounting principles used in the preparation of such
financial statements, the Borrower shall also provide, if necessary for
the determination of any of (x), (y) or (z) above, a statement of
reconciliation conforming such financial statements to GAAP.
(d) Monthly Financials. As soon as available and in any event
within (i) 45 days after the end of each of the first three quarters of
each Fiscal Year, (ii) 60 days after the end of the last quarter of
each Fiscal Year, and (iii) 30 days after the end of each other fiscal
month of the Borrower, a Consolidated balance sheet of the Borrower and
its Subsidiaries as of the end of such month and a Consolidated
statement of income and a Consolidated statement of cash flows of the
Borrower and its Subsidiaries for the period commencing at the end of
the previous month and ending with the end of such month and a
Consolidated statement of income and a Consolidated statement of cash
flows of the Borrower and its Subsidiaries for the period commencing at
the end of the previous Fiscal Year and ending with the end of such
month, setting forth in each case in comparative form the corresponding
figures for the corresponding month of the preceding Fiscal Year, all
in reasonable detail and duly certified by a Responsible Financial
Officer of the Borrower.
(e) Business Plans and Annual Forecasts. As soon as available
and in any event not later than 90 days after the end of each Fiscal
Year, an annual business plan and forecasts prepared by management of
the Borrower, in form satisfactory to the Administrative Agent, of
balance sheets, income statements and cash flow statements and
projected borrowing base availability on a monthly basis for the Fiscal
Year immediately following such Fiscal Year, together with narratives
outlining the material operating, investing and financing assumptions
incorporated in such forecasts.
95
(f) Tax and Asbestos Litigation Reports. Promptly upon the
occurrence of a material event in connection with (i) any tax
proceeding involving, or any Federal income tax liability, contingent
or actual, of the Borrower, any Loan Party, or any other member of the
G-I Holdings Tax Group, in connection with or arising out of the Rhone
Poulenc Transactions and (ii) asbestos litigation involving the
Borrower or any of its Subsidiaries, provide a summary in form and
substance reasonably satisfactory to the Administrative Agent of such
event.
(g) Litigation. Promptly after the Borrower becomes aware of
the commencement thereof, notice of all actions, suits, investigations,
litigation and proceedings before any Governmental Authority affecting
any Loan Party or any of its Subsidiaries of the type described in
Section 4.01(f), and promptly after the occurrence thereof, notice of
any material adverse change in the status or the financial effect on
any Loan Party or any of its Subsidiaries of the Disclosed Litigation
from that described on Schedule 4.01(f) hereto.
(h) Securities Reports. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and
reports that any Loan Party or any of its Subsidiaries sends to its
stockholders, and copies of all regular, periodic and special reports,
and all registration statements, that any Loan Party or any of its
Subsidiaries files with the Securities and Exchange Commission or any
governmental authority that may be substituted therefor, or with any
national securities exchange.
(i) Creditor Reports. Promptly after the furnishing thereof,
copies of any statement or report furnished to any holder of Debt
securities of any Loan Party or of any of its Subsidiaries pursuant to
the terms of any indenture, loan or credit or similar agreement and not
otherwise required to be furnished to the Lender Parties pursuant to
any other clause of this Section 5.03.
(j) Revenue Agent Reports. Within 10 days after receipt,
copies of all Revenue Agent Reports (Internal Revenue Service Form
886), or other written proposals of the Internal Revenue Service, that
propose, determine or otherwise set forth positive adjustments to the
Federal income tax liability of the affiliated group (within the
meaning of Section 1504(a)(1) of the Internal Revenue Code) of which
the Borrower is a member aggregating $1 million or more.
(k) ERISA. (i) ERISA Events and ERISA Reports. (A) Promptly
and in any event within 10 days after any Loan Party or any ERISA
Affiliate knows or has reason to know that any ERISA Event has
occurred, a statement of the Chief Financial Officer of the Borrower
describing such ERISA Event and the action, if any, that such Loan
Party or such ERISA Affiliate has taken and proposes to take with
respect thereto and (B) on the date any records, documents or other
information must be furnished to the PBGC with respect to any Plan
pursuant to Section 4010 of ERISA, a copy of such records, documents
and information.
(ii) Plan Terminations. Promptly and in any event within two
Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate, copies of each notice from the PBGC stating its intention to
96
terminate any Plan or to have a trustee appointed to administer any
Plan.
(iii) Plan Annual Reports. Promptly and in any event within 30
days after the filing thereof with the Internal Revenue Service, copies
of each Schedule B (Actuarial Information) to the annual report (Form
5500 Series) with respect to each Plan.
(iv) Multiemployer Plan Notices. Promptly and in any event
within five Business Days after receipt thereof by any Loan Party or
any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of
each notice concerning (A) the imposition of Withdrawal Liability by
any such Multiemployer Plan, (B) the reorganization or termination,
within the meaning of Title IV of ERISA, of any such Multiemployer Plan
or (C) the amount of liability incurred, or that may be incurred, by
such Loan Party or any ERISA Affiliate in connection with any event
described in clause (A) or (B).
(l) Environmental Conditions. Promptly after the assertion or
occurrence thereof, notice of (i) any Environmental Action against or
of any noncompliance by any Loan Party or any of its Subsidiaries with
any Environmental Law or Environmental Permit that could (A) reasonably
be expected to have a Material Adverse Effect or (B) cause any property
described in the Mortgages to be subject to any material restrictions
on ownership, occupancy, use or transferability under any Environmental
Law assuming continued use for industrial purposes; or (ii) any other
matter or occurrence that may impact the number, scope, import or
substance of any Environmental Approval Action or the underlying
circumstances thereof.
(m) Real Property. As soon as available and in any event
within 95 days after the end of each Fiscal Year, a report
supplementing Schedules 4.01(r), 4.01(s)(1), and 4.01(s)(2) hereto,
including an identification of all owned and leased real property
disposed of by the Borrower or any of its Subsidiaries during such
Fiscal Year, a list and description (including the street address,
county or other relevant jurisdiction, state, record owner, book value
thereof and, in the case of leases of property, lessor, lessee,
expiration date and annual rental cost thereof) of all real property
acquired or leased during such Fiscal Year and a description of such
other changes in the information included in such Schedules as may be
necessary for such Schedules to be accurate and complete.
(n) Insurance. As soon as available and in any event within 95
days after the end of each Fiscal Year, a report summarizing the
insurance coverage (specifying type, amount and carrier) in effect for
each Loan Party and its Subsidiaries and containing such additional
information as any Agent, or any Lender Party through the
Administrative Agent, may reasonably specify.
(o) Borrowing Base Certificate. A Borrowing Base Certificate
(i) on the first Business Day of each week, as at the last Business Day
of the immediately preceding week (x) at any time that the Available
Liquidity is less than the Specified Liquidity Amount or (y) at the
option of the Borrower; or (ii) if neither clause (i)(x) or clause
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(i)(y) applies, no later than the seventh Business Day of each month,
as at the last Business Day of the immediately preceding month.
(p) Access for Field Examinations. Provide representatives of
the Collateral Monitoring Agent sufficient access to the properties and
offices of the Borrower and its Subsidiaries for such representatives
to conduct, at the Borrower's expense, (a) on or before the end of each
fiscal quarter of the Borrower, a field examination and (b) from time
to time, asset appraisals.
(q) Other Information. Such other information respecting the
business, properties, condition (financial or otherwise) or operations
of any Loan Party or any of its Subsidiaries as the Administrative
Agent, or any Lender Party through the Administrative Agent, may from
time to time reasonably request.
SECTION 5.04. Financial Covenant. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower shall, if the Available Liquidity at any time
during a fiscal quarter of the Borrower has been less than the Specified
Liquidity Amount, maintain an Interest Coverage Ratio for the most recently
ended four fiscal quarters of the Borrower for which financial statements were
required to have been delivered in accordance with Section 5.03(b) or (c), as
applicable, of not less than the minimum ratio set forth below opposite the
reference to the last day of such four fiscal quarters:
Fiscal Quarter Ending Interest Coverage Ratio
--------------------- -----------------------
From the fourth fiscal quarter of
Fiscal Year 2006 through the fourth
fiscal quarter of Fiscal Year 2008 2.25 to 1
From the first fiscal quarter of
Fiscal Year 2009 through the fourth
fiscal quarter of Fiscal Year 2010 2.35 to 1
On the last day of any fiscal quarter
thereafter through the Termination Date 2.50 to 1
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("EVENTS OF DEFAULT") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any
Advance when the same shall become due and payable or (ii) the Borrower
shall fail to pay any interest on any Advance, or any Loan Party shall
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fail to make any other payment under any Loan Document when due and
payable; or
(b) any representation or warranty made by any Loan Party (or
any of its officers) under or in connection with any Loan Document
shall prove to have been incorrect in any material respect when made;
or
(c) the Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 2.14, 5.01(e), (f), (i) or
(j), 5.02, 5.03(a), (b), (c), (d) or (k) or 5.04; or
(d) any Loan Party shall fail to perform or observe any other
term, covenant or agreement contained in any Loan Document on its part
to be performed or observed if such failure shall remain unremedied for
15 days after the earlier of the date on which (i) a Responsible
Officer becomes aware of such failure or (ii) written notice thereof
shall have been given to the Borrower by any Agent or any Lender Party;
or
(e) any Loan Party or any of its Subsidiaries shall fail to
pay any principal of, premium or interest on or any other amount
payable in respect of any Debt of such Loan Party or such Subsidiary
(as the case may be) that is outstanding in a principal amount of at
least $25 million either individually or in the aggregate for all such
Loan Parties and Subsidiaries (but excluding Debt outstanding
hereunder), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and
such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or any
other event shall occur or condition shall exist under any agreement or
instrument relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate,
or to permit the acceleration of, the maturity of such Debt or
otherwise to cause, or to permit the holder thereof to cause, such Debt
to mature; or any such Debt shall be declared to be due and payable or
required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or an offer
to prepay, redeem, purchase or defease such Debt shall be required to
be made, in each case prior to the stated maturity thereof; or
(f) any Loan Party or any of its Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against any Loan Party or any of its Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee or other similar official for it or for any
substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that is
being diligently contested by it in good faith, either such proceeding
shall remain undismissed or unstayed for a period of 60 days or any of
the actions sought in such proceeding (including, without limitation,
the entry of an order for relief against, or the appointment of a
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receiver, trustee, custodian or other similar official for, it or any
substantial part of its property) shall occur; or any Loan Party or any
of its Subsidiaries shall take any corporate action to authorize any of
the actions set forth above in this subsection (f); or
(g) any judgments or orders (other than in respect of the
alleged Federal income tax liabilities of the Borrower relating to or
arising out of the Rhone Poulenc Transactions or relating to the
alleged asbestos liabilities of the Borrower), either individually or
in the aggregate, for the payment of money in excess of $25 million
shall be rendered against any Loan Party or any of its Subsidiaries and
either (i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order or (ii) there shall be any period
of 15 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; provided, however, that any such judgment or order
shall not give rise to an Event of Default under this Section 6.01(g)
if and for so long as (A) the amount of such judgment or order is
covered by a valid and binding policy of insurance between the
defendant and the insurer, which shall be rated at least "A" by A.M.
Best Company, covering full payment thereof and (B) such insurer has
been notified, and has not disputed the claim made for payment, of the
amount of such judgment or order; or
(h) after the date hereof (i) any court or governmental agency
determines a tax liability or otherwise issues any adverse ruling
addressing the merits, proposes to or actually enters a stipulated
settlement or settlement notice, or makes or provides any assessment,
notice of intent to file a lien, or lien filing against any member of
the G-I Holdings Tax Group or any Loan Party with respect to the Rhone
Poulenc Transactions, and there shall be a period of 20 consecutive
days after the taking of such action during which time the Super
Majority Lenders shall not have determined that there shall not exist,
because of such action, a reasonable likelihood that one or more of the
Loan Parties will pay, satisfy, or receive demand for payment of any
tax liabilities relating to or arising out of the Rhone Poulenc
Transactions (it being understood that during such 20 consecutive day
period the Lender Parties shall not be required to make any Advances
hereunder), or (ii) any court renders a judgment or order against any
Loan Party related to or arising out of the alleged asbestos
liabilities of the Borrower and as a result of which it is reasonable
to conclude that the Loan Parties might be liable for such asbestos
liabilities (it being understood and agreed that any adverse ruling by
the court in the DJ Action shall not, solely by itself, constitute an
Event of Default under this clause 6.01(h)(ii)); or
(i) any non-monetary judgment or order shall be rendered
against any Loan Party or any of its Subsidiaries that could be
reasonably likely to have a Material Adverse Effect, and there shall be
any period of 20 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(j) any provision of any Loan Document after delivery thereof
pursuant to Section 3.01 or 5.01(j) shall for any reason cease to be
valid and binding on or enforceable against any Loan Party party to it,
or any such Loan Party shall so state in writing; or
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(k) any Collateral Document or financing statement after
delivery thereof pursuant to Section 3.01 or 5.01(j) shall for any
reason (other than pursuant to or permitted by the terms of any Loan
Document) cease to create a valid and perfected first priority lien
subject to any Liens permitted by Section 5.02 on and security interest
in the Collateral purported to be covered thereby; or
(l) a Change of Control shall occur; or
(m) any ERISA Event shall have occurred with respect to a Plan
and the sum (determined as of the date of occurrence of such ERISA
Event) of the Insufficiency of such Plan and the Insufficiency of any
and all other Plans with respect to which an ERISA Event shall have
occurred and then exist (or the liability of the Loan Parties and the
ERISA Affiliates related to such ERISA Event) exceeds (together with
all other liabilities described in Section 6.01(m), (n), and (o)) $10
million in the aggregate; or
(n) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan in an amount that, when
aggregated with all other amounts required to be paid to Multiemployer
Plans by the Loan Parties and the ERISA Affiliates as Withdrawal
Liability (determined as of the date of such notification), exceeds
(together with all other liabilities described in Section 6.01(m), (n),
and (o)) $10 million in the aggregate; or
(o) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of
Title IV of ERISA, and as a result of such reorganization or
termination the aggregate annual contributions of the Loan Parties and
the ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or being terminated have been or will be increased over
the amounts contributed to such Multiemployer Plans for the plan years
of such Multiemployer Plans immediately preceding the plan year in
which such reorganization or termination occurs by an amount exceeding
(together with all other liabilities described in Section 6.01(m), (n),
and (o)) $10 million in the aggregate; or
(p) any Federal tax Liens in respect of the proposed Federal
income tax liabilities of the Borrower or any other member of the G-I
Holdings Tax Group relating to or arising out of the Rhone Poulenc
Transactions shall be created and be enforceable against the assets of
any Loan Party; or
(q) there shall occur any Material Adverse Change; or
(r) the existing stay of the asbestos-related litigation
against the Borrower granted in the G-I Holdings bankruptcy proceedings
shall have been terminated or amended or modified in a manner not
reasonably acceptable to the Administrative Agent, or there shall have
occurred a substantive consolidation of G-I Holdings with the assets
and liabilities of the Borrower or any of the Subsidiary Guarantors in
conjunction with the G-I Holdings bankruptcy proceedings;
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then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of each Lender Party and the obligation of each Lender
Party to make Advances (other than Letter of Credit Advances by the Issuing Bank
or a Lender pursuant to Section 2.03(c) and Swing Line Advances by a Lender
pursuant to Section 2.02(b)) and of the Issuing Bank to issue Letters of Credit
to be terminated, whereupon the same shall forthwith terminate, and (ii) shall
at the request, or may with the consent, of the Required Lenders, (A) by notice
to the Borrower, declare the Notes, all interest thereon and all other amounts
payable under this Agreement and the other Loan Documents to be forthwith due
and payable, whereupon the Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower, (B) by notice to each party required under the terms of any agreement
in support of which a Standby Letter of Credit is issued, request that all
Obligations under such agreement be declared to be due and payable; provided,
however, that in the event of an actual or deemed entry of an order for relief
with respect to the Borrower under the Federal Bankruptcy Code, (x) the
Commitments of each Lender Party and the obligation of each Lender Party to make
Advances (other than Letter of Credit Advances by the Issuing Bank or a Lender
pursuant to Section 2.03(c) and Swing Line Advances by a Lender pursuant to
Section 2.02(b)) and of the Issuing Bank to issue Letters of Credit shall
automatically be terminated and (y) the Notes, all such interest and all such
amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default.
If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, pay to the Collateral Agent on behalf of the Lender
Parties in same day funds at the Collateral Agent's office designated in such
demand, for deposit in the L/C Collateral Account, an amount equal to the
aggregate Available Amount of all Letters of Credit then outstanding. If at any
time the Administrative Agent determines that any funds held in the L/C
Collateral Account are subject to any right or claim of any Person other than
the Agents and the Lender Parties or that the total amount of such funds is less
than the aggregate Available Amount of all Letters of Credit, the Borrower will,
forthwith upon demand by the Administrative Agent, pay to the Collateral Agent,
as additional funds to be deposited and held in the L/C Collateral Account, an
amount equal to the excess of (a) such aggregate Available Amount over (b) the
total amount of funds, if any, then held in the L/C Collateral Account that the
Administrative Agent determines to be free and clear of any such right and
claim. Upon the drawing of any Letter of Credit for which funds are on deposit
in the L/C Collateral Account, such funds shall be applied to reimburse the
Issuing Bank or Lenders, as applicable, to the extent permitted by applicable
law.
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ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender Party (in its
capacities as a Lender, the Swing Line Bank (if applicable), and the Issuing
Bank (if applicable)) hereby appoints and authorizes each Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
this Agreement and the other Loan Documents as are delegated to such Agent by
the terms hereof and thereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
the Loan Documents (including, without limitation, enforcement or collection of
the Notes), no Agent shall be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lender
Parties and all holders of Notes; provided, however, that no Agent shall be
required to take any action that exposes such Agent to personal liability or
that is contrary to this Agreement or applicable law. Each Agent agrees to give
to each Lender Party prompt notice of each notice given to it by the Borrower
pursuant to the terms of this Agreement.
SECTION 7.02. Agents' Reliance, Etc. Neither any Agent nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, each Agent:
(a) may treat the payee of any Note as the holder thereof until, in the case of
the Administrative Agent, the Administrative Agent receives and accepts an
Assignment and Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, or, in the case of any
other Agent, such Agent has received notice from the Administrative Agent that
it has received and accepted such Assignment and Acceptance, in each case as
provided in Section 8.07; (b) may consult with legal counsel (including counsel
for any Loan Party), independent public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of such counsel, accountants or
experts; (c) makes no warranty or representation to any Lender Party and shall
not be responsible to any Lender Party for any statements, warranties or
representations (whether written or oral) made in or in connection with the Loan
Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance, observance or satisfaction of any of the terms, covenants or
conditions of any Loan Document on the part of any Loan Party or the existence
at any time of any Default under the Loan Documents or to inspect the property
(including the books and records) of any Loan Party; (e) shall not be
responsible to any Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; and (f) shall incur no liability under or
in respect of any Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telegram, telecopy or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
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SECTION 7.03. CUSA and Affiliates. With respect to its Commitments, the
Advances made by it and the Notes issued to it, CUSA shall have the same rights
and powers under the Loan Documents as any other Lender Party and may exercise
the same as though it were not an Agent; and the term "Lender Party" or "Lender
Parties" shall, unless otherwise expressly indicated, include CUSA in its
individual capacity as such. CUSA and its affiliates may accept deposits from,
lend money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, any Loan
Party, any of its Subsidiaries and any Person that may do business with or own
securities of any Loan Party or any such Subsidiary, all as if CUSA was not an
Agent and without any duty to account therefor to the Lender Parties. No Agent
shall have any duty to disclose any information obtained or received by it or
any of its Affiliates relating to any Loan Party or any of its Subsidiaries to
the extent such information was obtained or received in any capacity other than
as such Agent.
SECTION 7.04. Lender Party Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon any Agent or
any other Lender Party and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and
without reliance upon any Agent or any other Lender Party and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement.
SECTION 7.05. Indemnification. (a) Each Lender Party severally agrees
to indemnify each Agent (to the extent not promptly reimbursed by the Borrower)
from and against such Lender Party's ratable share (determined as provided
below) of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against such
Agent in any way relating to or arising out of the Loan Documents or any action
taken or omitted by such Agent under the Loan Documents (collectively, the
"INDEMNIFIED COSTS"); provided, however, that no Lender Party shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from such
Agent's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender Party agrees to reimburse each Agent promptly upon demand
for its ratable share of any costs and expenses (including, without limitation,
fees and expenses of counsel) payable by the Borrower under Section 8.04, to the
extent that such Agent is not promptly reimbursed for such costs and expenses by
the Borrower. In the case of any investigation, litigation or proceeding giving
rise to any Indemnified Costs, this Section 7.05 applies whether any such
investigation, litigation or proceeding is brought by any Lender Party or any
other Person.
(b) Each Lender Party severally agrees to indemnify the
Issuing Bank (to the extent not promptly reimbursed by the Borrower) from and
against such Lender Party's ratable share (determined as provided below) of any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the Issuing
Bank in any way relating to or arising out of the Loan Documents or any action
taken or omitted by the Issuing Bank under the Loan Documents; provided,
however, that no Lender Party shall be liable for any portion of such
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liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Issuing Bank's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender Party agrees to reimburse the Issuing Bank promptly upon demand for its
ratable share of any costs and expenses (including, without limitation, fees and
expenses of counsel) payable by the Borrower under Section 8.04, to the extent
that the Issuing Bank is not promptly reimbursed for such costs and expenses by
the Borrower.
(c) For purposes of this Section 7.05, the Lender Parties'
respective ratable shares of any amount shall be determined, at any time,
according to the sum of (i) the aggregate principal amount of the Advances
outstanding at such time and owing to the respective Lender Parties, (ii) their
respective Pro Rata Shares of the aggregate Available Amount of all Letters of
Credit outstanding at such time, and (iii) their respective Unused Revolving
Credit Commitments at such time; provided that the aggregate principal amount of
Swing Line Advances owing to the Swing Line Bank and of Letter of Credit
Advances owing to the Issuing Bank shall be considered to be owed to the Lenders
ratably in accordance with their respective Revolving Credit Commitments. The
failure of any Lender Party to reimburse any Agent or the Issuing Bank, as the
case may be, promptly upon demand for its ratable share of any amount required
to be paid by the Lender Parties to such Agent or the Issuing Bank, as the case
may be, as provided herein shall not relieve any other Lender Party of its
obligation hereunder to reimburse such Agent or the Issuing Bank, as the case
may be, for its ratable share of such amount, but no Lender Party shall be
responsible for the failure of any other Lender Party to reimburse such Agent or
the Issuing Bank, as the case may be, for such other Lender Party's ratable
share of such amount. Without prejudice to the survival of any other agreement
of any Lender Party hereunder, the agreement and obligations of each Lender
Party contained in this Section 7.05 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the other
Loan Documents.
SECTION 7.06. Successor Agents. Any Agent may resign at any time by
giving written notice thereof to the Lender Parties and the Borrower and may be
removed at any time with or without cause by the Required Lenders; provided,
however, that any removal of the Administrative Agent will not be effective
until it has also been replaced as Collateral Monitoring Agent, Swing Line Bank
and Issuing Bank and released from all of its obligations in respect thereof
(other than obligations resulting from its gross negligence or willful
misconduct). Upon any such resignation or removal, the Required Lenders shall
have the right to appoint a successor Agent. If no successor Agent shall have
been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Lender Parties, appoint a successor Agent,
which shall be a commercial bank organized under the laws of the United States
or of any State thereof and having a combined capital and surplus of at least
$250 million. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent and, in the case of a successor Collateral Monitoring Agent,
upon the execution and filing or recording of such financing statements, or
amendments thereto, and such amendments or supplements to the Mortgages, and
such other instruments or notices, as may be necessary or desirable, or as the
Required Lenders may request, in order to continue the perfection of the Liens
granted or purported to be granted by the Collateral Documents, such successor
Agent shall succeed to and become vested with all the rights, powers,
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discretion, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under the Loan Documents
(other than duties and obligations resulting from its gross negligence or
willful misconduct). If within 45 days after written notice is given of the
retiring Agent's resignation or removal under this Section 7.06, no successor
Agent shall have been appointed and shall have accepted such appointment, then
on such 45th day (a) the retiring Agent's resignation or removal shall become
effective, (b) the retiring Agent shall thereupon be discharged from its duties
and obligations under the Loan Documents (other than duties and obligations
resulting from its gross negligence or willful misconduct) and (c) the Required
Lenders shall thereafter perform all duties of the retiring Agent under the Loan
Documents until such time, if any, as the Required Lenders appoint a successor
Agent as provided above. After any retiring Agent's resignation or removal
hereunder as Agent shall have become effective, the provisions of this Article
VII shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Agent under this Agreement.
SECTION 7.07. Appointment of Supplemental Collateral Monitoring Agents.
(a) It is the purpose of this Agreement and the other Loan Documents that there
shall be no violation of any law of any jurisdiction denying or restricting the
right of banking corporations or associations to transact business as agent or
trustee in such jurisdiction. It is recognized that in case of litigation under
this Agreement or any of the other Loan Documents, and in particular in case of
the enforcement of any of the Loan Documents, or in case the Administrative
Agent deems that by reason of any present or future law of any jurisdiction it
may not exercise any of the rights, powers or remedies granted herein or in any
of the other Loan Documents or take any other action which may be desirable or
necessary in connection therewith, it may be necessary that the Administrative
Agent appoint an additional individual or institution as a separate trustee,
co-trustee, collateral monitoring agent, collateral agent, collateral sub-agent
or collateral co-agent (any such additional individual or institution being
referred to herein individually as a "SUPPLEMENTAL COLLATERAL MONITORING AGENT"
and collectively as "SUPPLEMENTAL COLLATERAL MONITORING AGENTS").
(b) In the event that the Administrative Agent appoints a
Supplemental Collateral Monitoring Agent with respect to any Collateral, (i)
each and every right, power, privilege or duty expressed or intended by this
Agreement or any of the other Loan Documents to be exercised by or vested in or
conveyed to the Administrative Agent with respect to such Collateral shall be
exercisable by and vest in such Supplemental Collateral Monitoring Agent to the
extent, and only to the extent, necessary to enable such Supplemental Collateral
Monitoring Agent to exercise such rights, powers and privileges with respect to
such Collateral and to perform such duties with respect to such Collateral, and
every covenant and obligation contained in the Loan Documents necessary to the
exercise or performance thereof by such Supplemental Collateral Monitoring Agent
shall run to and be enforceable by either the Administrative Agent or such
Supplemental Collateral Monitoring Agent, and (ii) the provisions of this
Article and of Section 8.04 that refer to the Administrative Agent shall inure
to the benefit of such Supplemental Collateral Monitoring Agent and all
references therein to the Administrative Agent shall be deemed to be references
to the Administrative Agent and/or such Supplemental Collateral Monitoring
Agent, as the context may require.
(c) Should any instrument in writing from any Loan Party be
reasonably required by any Supplemental Collateral Monitoring Agent so appointed
by the Administrative Agent for more fully and certainly vesting in and
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confirming to him or it such rights, powers, privileges and duties, such Loan
Party shall execute, acknowledge and deliver any and all such instruments
promptly upon request by the Administrative Agent. In case any Supplemental
Collateral Monitoring Agent, or a successor thereto, shall die, become incapable
of acting, resign or be removed, all the rights, powers, privileges and duties
of such Supplemental Collateral Monitoring Agent, to the extent permitted by
law, shall vest in and be exercised by the Administrative Agent until the
appointment of a new Supplemental Collateral Monitoring Agent.
SECTION 7.08. The Joint Lead Arrangers, the Syndication Agent and the
Co-Documentation Agents. It is understood and agreed by all parties hereto that
neither the Joint Lead Arrangers, nor the Syndication Agent, nor the
Co-Documentation Agents shall have any rights, powers, duties or
responsibilities in such capacity under this Agreement (nor shall any such
rights, powers, duties or responsibilities be read into this Agreement or any
other Loan Document), and shall have no liability for any actions taken or not
taken in such capacity in connection with this Agreement or the other Loan
Documents.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. (a) No amendment or waiver of any
provision of this Agreement or the Notes or any other Loan Document, nor consent
to any departure by any Loan Party therefrom, shall in any event be effective
unless the same shall be in writing and signed (or, in the case of the
Collateral Documents, consented to) by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all of the Lender Parties
(other than any Lender Party that is, at such time, a Defaulting Lender), do any
of the following at any time: (i) waive any of the conditions specified in
Section 3.01, (ii) change the number of Lenders or the percentage of (x) the
Commitments, (y) the aggregate unpaid principal amount of the Advances or (z)
the aggregate Available Amount of outstanding Letters of Credit that, in each
case, shall be required for the Lenders or any of them to take any action
hereunder, (iii) reduce or limit the obligations of any Subsidiary Guarantor
under Section 1 of the Subsidiary Guaranty issued by it or release such
Subsidiary Guarantor or otherwise limit such Subsidiary Guarantor's liability
with respect to the Obligations owing to the Agents and the Lender Parties
(other than, in the case of any Subsidiary Guarantor, to the extent permitted
under the Subsidiary Guaranty), (iv) release all or substantially all of the
Collateral in any transaction or series of related transactions, (v) amend
Section 2.13 or this Section 8.01, (vi) increase the Commitments of the Lenders
(except in accordance with the provisions of Section 2.17), (vii) reduce the
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, (viii) postpone any date scheduled for any payment of principal of,
or interest on, the Notes pursuant to Section 2.04 or 2.07 or any date fixed for
payment of fees or other amounts payable hereunder, (ix) limit the liability of
any Loan Party under any of the Loan Documents or (x) amend or otherwise modify
the definition of "Loan Value" or any component thereof (including, without
limitation, any advance rates included in such definition) so as to increase the
aggregate Loan Value of the Eligible Collateral or any component of such Loan
Value; provided further that no amendment, waiver or consent shall, unless in
writing and signed by the Swing Line Bank or the Issuing Bank, as the case may
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be, in addition to the Lenders required above to take such action, affect the
rights or obligations of the Swing Line Bank or of the Issuing Bank, as the case
may be, under this Agreement; and provided further that no amendment, waiver or
consent shall, unless in writing and signed by an Agent in addition to the
Lenders required above to take such action, affect the rights or duties of such
Agent under this Agreement or the other Loan Documents.
(b) In the event that any Lender Party fails to consent to any
amendment, modification or waiver that requires the consent of all of the Lender
Parties (other than any Lender Party that is, at such time, a Defaulting Lender)
where the Super Majority Lenders have approved such amendment, modification or
waiver (a "NON-CONSENTING LENDER"), then (subject to (i) such Lender Party's
right to rescind such demand or assertion within five days after the notice from
the Borrower referred to below or (ii) such Non-Consenting Lender consenting to
such amendment, modification or waiver within those five days) the Borrower may,
upon five Business Days' prior written notice to such Lender Party and the
Administrative Agent, elect to cause such Lender Party to assign its Advances
and Commitments in full to one or more Persons selected by the Borrower so long
as (a) each such Person satisfies the criteria of an Eligible Assignee and is
reasonably satisfactory to the Administrative Agent, (b) such Lender Party
receives payment in full in cash of the outstanding principal amount of all
Advances made by it and all accrued and unpaid interest thereon and all other
amounts due and payable to such Lender Party as of the date of such assignment
(including, without limitation, amounts owing pursuant to Sections 2.10, 2.12,
2.15 and 8.04) and (c) each such Lender Party assignee agrees to accept such
assignment and to assume all obligations of such Lender Party hereunder in
accordance with Section 8.07.
SECTION 8.02. Notices, Etc. (a) All notices and other communications
provided for hereunder shall be either (x) in writing (including telecopier or
telegraphic communication) and mailed, telecopied, telegraphed or delivered or
(y) as and to the extent set forth in Section 8.02(b) and in the proviso to this
Section 8.02(a), in an electronic medium and delivered as set forth in Section
8.02(b), if to the Borrower, at its address at Building Materials Corporation of
America, 1361 Alps Road, Wayne, New Jersey 07470; Attention: Treasurer;
Telephone: (973) 628-3000; Facsimile (973) 628-3326; if to any Initial Lender
Party, at its Domestic Lending Office specified opposite its name on Schedule I
hereto; if to any other Lender Party, at its Domestic Lending Office specified
in the Assignment and Acceptance pursuant to which it became a Lender Party; if
to the Collateral Agent, at its address at 111 Wall Street, 14th Floor, New
York, NY, 10005; Attention: Citibank Agency & Trust; Telephone: (212) 657-5810;
Facsimile: (212) 657-2762; if to the Administrative Agent or the Collateral
Monitoring Agent, at its address at Citicorp USA, Inc.; Asset Based Finance, 388
Greenwich Ave., 20th Floor, New York, NY 10013; Attention: Jeffrey Nitz,
Telephone: (212) 816-7845; Facsimile: (212) 816-2613; e-mail:
jeffrey.nitz@citigroup.com or, as to the Borrower or the Administrative Agent,
at such other address as shall be designated by such party in a written notice
to the other parties and, as to each other party, at such other address as shall
be designated by such party in a written notice to the Borrower and the
Administrative Agent; provided that materials required to be delivered pursuant
to Section 5.01(j)(i) through (vii) shall be delivered to the Administrative
Agent as specified in Section 8.02(b) or as otherwise specified to the Borrower
by the Administrative Agent. All such notices and communications shall, when
mailed, telecopied, telegraphed or e-mailed, be effective when deposited in the
mails, telecopied, delivered to the telegraph company or confirmed by e-mail,
respectively, except that notices and communications to the Administrative Agent
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pursuant to Article II, III or VII shall not be effective until received by the
Administrative Agent. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement or the Notes or of any
Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof.
(b) So long as CUSA is the Administrative Agent, materials
required to be delivered pursuant to Section 5.01(j)(i) through (vii) shall be
delivered to the Administrative Agent in an electronic medium in a format
acceptable to the Administrative Agent and the Lenders by e-mail at
timothy.r.singles@citigroup.com. The Borrower agrees that the Administrative
Agent may make such materials, as well as any other written information,
documents instruments and other material relating to the Borrower, or any of its
Subsidiaries or any other materials or matters relating to this Agreement, or
any of the transactions contemplated hereby (collectively, the "COMMUNICATIONS")
available to the Lenders by posting such notices on (x) "e-Disclosure," the
Administrative Agent's internet delivery system that is part of SSB Direct,
Global Fixed Income's primary web portal, or (y) "IntraLinks" ((x) or (y), as
applicable, referred to herein as the "PLATFORM"). Although the primary web
portal is secured with a dual firewall and a User ID/Password Authorization
System and the Platform is secured through a single user per deal authorization
method whereby each user may access the Platform only on a deal-by-deal basis,
the Borrower acknowledges that (i) the distribution of material through an
electronic medium is not necessarily secure and that there are confidentiality
and other risks associated with such distribution, (ii) the Platform is provided
"as is" and "as available" and (iii) neither the Administrative Agent nor any of
its Affiliates warrants the accuracy, adequacy or completeness of the
Communications or the Platform and each expressly disclaims liability for errors
or omissions in the communications or the Platform other than those that arise
as a result of such Person's gross negligence or willful misconduct. No warranty
of any kind, express, implied or statutory, including, without limitation, any
warranty of merchantability, fitness for a particular purpose, non-infringement
of third party rights or freedom from viruses or other code defects, is made by
the Administrative Agent or any of its Affiliates in connection with the
Platform.
(c) Each Lender agrees that notice to it (as provided in the
next sentence) (a "NOTICE") specifying that any Communications have been posted
to the Platform shall constitute effective delivery of such information,
documents or other materials to such Lender for purposes of this Agreement;
provided that, if requested by any Lender, the Administrative Agent shall
deliver a copy of the Communications to such Lender by e-mail or telecopier.
Each Lender agrees (i) to notify the Administrative Agent in writing of such
Lender's e-mail address to which a Notice may be sent by electronic transmission
(including by electronic communication) on or before the date such Lender
becomes a party to this Agreement (and from time to time thereafter to ensure
that the Administrative Agent has on record an effective e-mail address for such
Lender) and (ii) that any Notice may be sent to such e-mail address.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender
Party or any Agent to exercise, and no delay in exercising, any right hereunder
or under any Note or any other Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any such right preclude any other or
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further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay on
demand (i) all reasonable out of pocket costs and expenses of the Administrative
Agent and the Collateral Agent in connection with the preparation, execution,
delivery, administration (including, without limitation, the fending of
Advances), modification and amendment of, or any consent or waiver under, the
Loan Documents (including, without limitation, (A) all due diligence, collateral
review, syndication (including, without limitation, printing, distribution and
bank meetings), transportation, computer, duplication, messenger, appraisal,
audit, insurance, consultant, search, filing and recording fees and expenses and
(B) the reasonable fees and expenses of one set (including, without limitation,
one main law firm and such additional special or local counsel as may be
reasonably required) counsel for each Agent and the Collateral Agent with
respect thereto, with respect to advising such Agent and the Collateral Agent as
to its rights and responsibilities, or the perfection, protection or
preservation of rights or interests, under the Loan Documents, with respect to
negotiations with any Loan Party or with other creditors of any Loan Party or
any of its Subsidiaries arising out of any Event of Default or any events or
circumstances that may give rise to an Event of Default and with respect to
presenting claims in or otherwise participating in or monitoring any bankruptcy,
insolvency or other similar proceeding involving creditors' rights generally and
any proceeding ancillary thereto) and (ii) all out of pocket costs and expenses
of each Agent, the Collateral Agent and each Lender Party in connection with the
enforcement of the Loan Documents, whether in any action, suit or litigation, or
any bankruptcy, insolvency or other similar proceeding affecting creditors'
rights generally (including, without limitation, the reasonable fees and
expenses of counsel for the Administrative Agent, the Collateral Agent and each
Lender Party with respect thereto).
(b) The Borrower agrees to indemnify, defend and save and hold
harmless each Agent, the Collateral Agent, each Lender Party and each of their
Affiliates and their respective officers, directors, employees, agents,
advisors, attorneys and representatives (each, an "INDEMNIFIED PARTY") from and
against, and shall pay on demand, any and all claims, damages, losses,
liabilities and expenses (including, without limitation, fees and expenses of
counsel), joint or several, that may be incurred by or asserted or awarded
against any Indemnified Party, in each case arising out of or in connection with
or by reason of (including, without limitation, in connection with any
investigation, litigation or proceeding or preparation of a defense in
connection therewith) (i) the Facilities, the actual or proposed use of the
proceeds of the Advances or the Letters of Credit, the Transaction Documents or
any of the transactions contemplated thereby, including, without limitation, any
acquisition or proposed acquisition (including, without limitation, the
transactions contemplated hereunder) by the Borrower or any of its Subsidiaries
or Affiliates of all or any portion of the Equity Interests in or Debt
securities or substantially all of the assets of the Borrower or any of its
Subsidiaries or (ii) the actual or alleged presence of Hazardous Materials on
any property of any Loan Party or any of its Subsidiaries or any Environmental
Action relating in any way to any Loan Party or any of its Subsidiaries, except
to the extent such claim, damage, loss, liability or expense is found in a
final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
In the case of an investigation, litigation or other proceeding to which the
indemnity in this Section 8.04(b) applies, such indemnity shall be effective
whether or not such investigation, litigation or proceeding is brought by any
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Loan Party, its directors, shareholders or creditors or an Indemnified Party or
any other Person, whether or not any Indemnified Party is otherwise a party
thereto and whether or not the transactions contemplated hereunder are
consummated except to the extent such claim, damage, loss, liability or expense
is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct. The Borrower also agrees not to assert any claim against any
Agent, any Lender Party or any of their Affiliates, or any of their respective
officers, directors, employees, agents and advisors, on any theory of liability,
for special, indirect, consequential or punitive damages arising out of or
otherwise relating to the Facilities, the actual or proposed use of the proceeds
of the Advances or the Letters of Credit, the Transaction Documents or any of
the transactions contemplated by the Transaction Documents.
(c) No Indemnified Party shall have any liability (whether
direct or indirect, in contract, tort or otherwise) to the Borrower or its
Subsidiaries, or any shareholders or creditors of the foregoing for or in
connection with transactions contemplated hereby, except to the extent such
liability is found in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct. In no event, however, shall any Indemnified Party be liable
on any theory of liability for any special, indirect, consequential or punitive
damages (including, without limitation, any loss of profits, business or
anticipated savings).
(d) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender Party other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion pursuant to Section 2.06, 2.09(b)(i) or
2.10(d), acceleration of the maturity of the Notes pursuant to Section 6.01 or
for any other reason, or if the Borrower fails to make any payment or prepayment
of an Advance for which a notice of prepayment has been given or that is
otherwise required to be made, whether pursuant to Section 2.04, 2.06 or 6.01 or
otherwise, the Borrower shall, upon demand by such Lender Party (with a copy of
such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender Party any amounts required to compensate such Lender
Party for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment or Conversion or such failure to pay or prepay, as
the case may be, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender Party to fund or
maintain such Advance.
(e) If any Loan Party fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document, including,
without limitation, fees and expenses of counsel and indemnities, such amount
may be paid on behalf of such Loan Party by the Administrative Agent or any
Lender Party, in its sole discretion, exercised reasonably.
(f) Without prejudice to the survival of any other agreement
of any Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrower contained in Sections 2.10 and 2.12 and this Section
8.04 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under any of the other Loan Documents.
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SECTION 8.05. Right of Set-off. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Agent and each Lender Party and each of their
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Agent, such Lender Party
or such Affiliate to or for the credit or the account of the Borrower against
any and all of the Obligations of the Borrower now or hereafter existing under
the Loan Documents, irrespective of whether such Agent or such Lender Party
shall have made any demand under this Agreement or such Note or Notes and
although such Obligations may be unmatured. Each Agent and each Lender Party
agrees promptly to notify the Borrower after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Agent and each
Lender Party and their respective Affiliates under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Agent, such Lender Party and their respective Affiliates may
have.
SECTION 8.06. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and each Agent and the
Administrative Agent shall have been notified by each Initial Lender Party that
such Initial Lender Party has executed it and thereafter shall be binding upon
and inure to the benefit of the Borrower, each Agent and each Lender Party and
their respective successors and assigns, except that the Borrower shall not have
the right to assign its rights hereunder or any interest herein without the
prior written consent of each of the Lender Parties.
SECTION 8.07. Assignments and Participations. (a) Each Lender may, upon
at least five Business Days' notice to such Lender and the Administrative Agent,
assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment or Commitments, the Advances owing to it and the Note
or Notes held by it); provided, however, that (i) each such assignment shall be
of a uniform, and not a varying, percentage of all rights and obligations under
and in respect of any or all of the Facilities, (ii) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a Lender,
an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of
all of a Lender's rights and obligations under this Agreement, the aggregate
amount of the Commitments being assigned to such Eligible Assignee pursuant to
such assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5 million (or such
lesser amount as shall be approved by the Administrative Agent and, so long as
no Default shall have occurred and be continuing at the time of effectiveness of
such assignment, the Borrower), (iii) each such assignment shall be to an
Eligible Assignee, (iv) except in the case of an assignment by a Person that,
immediately prior to such assignment, was a Lender, to one of its Affiliates, no
such assignments shall be permitted without the consent of the Administrative
Agent and, so long as no Default shall have occurred and be continuing at the
time of effectiveness of such assignment, the Borrower (in each case, which
consents shall not be unreasonably withheld) and (v) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
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with any Note or Notes subject to such assignment and a processing and
recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in such Assignment and Acceptance,
(i) the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender or
Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank
assignor thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights (other than its rights under Sections 2.10, 2.12 and 8.04 to the
extent any claim thereunder relates to an event arising prior to such
assignment) and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all of the remaining portion
of an assigning Lender's or Issuing Bank's rights and obligations under this
Agreement, such Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance,
each Lender Party assignor thereunder and each assignee thereunder confirm to
and agree with each other and the other parties thereto and hereto as follows:
(i) other than as provided in such Assignment and Acceptance, such assigning
Lender Party makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with any Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; (ii) such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Loan Party or the performance or observance by any
Loan Party of any of its obligations under any Loan Document or any other
instrument or document furnished pursuant thereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon any Agent, such assigning Lender Party
or any other Lender Party and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each
Agent to take such action as agent on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to such Agent by the terms
hereof and thereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender or Issuing Bank, as the
case may be.
(d) The Administrative Agent acting for this purpose (but only
for this purpose) as the agent of the Borrower, shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lender Parties and the Commitment under each Facility of, and
principal amount of the Advances owing under each Facility to, each Lender Party
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from time to time (the "REGISTER"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agents and the Lender Parties shall treat each Person whose name
is recorded in the Register as a Lender Party hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Agent or any Lender Party at any reasonable time and from time to time upon
reasonable prior notice.
(e) Notwithstanding anything to the contrary contained in
clause (b) above, the Advances (including the Notes evidencing such Advances)
are registered obligations and the right, title, and interest of the Lender
Parties and their assignees in and to such Advances shall be transferable only
upon notation of such transfer in the Register. A Note shall only evidence the
Lender Party's or an assignee's right title and interest in and to the related
Advance, and in no event is any such Note to be considered a bearer instrument
or obligation. This Section 8.07 shall be construed so that the Advances are at
all times maintained in "registered form" within the meaning of sections 163(f),
871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations
(or any successor provisions of the Internal Revenue Code or such regulations).
Solely for purposes of this and for tax purposes only, the Administrative Agent
shall act as the Borrower's agent for purposes of maintaining such notations of
transfer in the Register.
(f) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender Party and an assignee, together with any Note or Notes
subject to such assignment, the Administrative Agent shall, if such Assignment
and Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower and each other Agent. In the case of any assignment by a Lender, within
five Business Days after its receipt of such notice, the Borrower, at its own
expense, shall, if requested by the assignee, execute and deliver to the
Administrative Agent in exchange for the surrendered Note or Notes an amended
and restated Note (which shall be marked "Amended and Restated") to the order of
such Eligible Assignee in an amount equal to the Commitment assumed by it under
each Facility pursuant to such Assignment and Acceptance and, if any assigning
Lender has retained a Commitment hereunder under such Facility and has requested
a replacement Note, an amended and restated Note to the order of such assigning
Lender in an amount equal to the Commitment retained by it hereunder. Such
amended and restated Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A hereto.
(g) The Issuing Bank may assign to an Eligible Assignee all of
its rights and obligations under the undrawn portion of its Letter of Credit
Commitment at any time; provided, however, that (i) each such assignment shall
be to an Eligible Assignee and (ii) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with a
processing and recordation fee of $3,500.
(h) Each Lender Party may sell participations to one or more
Persons (other than any Loan Party or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
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limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes (if any) held by it); provided, however, that (i) such Lender
Party's obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender Party shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrower, the Agents and the other Lender
Parties shall continue to deal solely and directly with such Lender Party in
connection with such Lender Party's rights and obligations under this Agreement
and (v) no participant under any such participation shall have any right to
approve any amendment or waiver of any provision of any Loan Document, or any
consent to any departure by any Loan Party therefrom, except to the extent that
such amendment, waiver or consent requires the consent of all Lender Parties.
(i) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party in accordance with the terms of Section
8.10.
(j) Notwithstanding any other provision set forth in this
Agreement, any Lender Party may at any time create a security interest in all or
any portion of its rights under this Agreement (including, without limitation,
the Advances owing to it and the Note or Notes held by it) in favor of any
Federal Reserve Bank in accordance with Regulation A of the Board of Governors
of the Federal Reserve System.
(k) Notwithstanding anything to the contrary contained herein,
any Lender that is a fund that invests in bank loans may create a security
interest in all or any portion of the Advances owing to it and the Note or Notes
held by it to the trustee for holders of obligations owed, or securities issued,
by such fund as security for such obligations or securities, provided, that
unless and until such trustee actually becomes a Lender in compliance with the
other provisions of this Section 8.07, (i) no such pledge shall release the
pledging Lender from any of its obligations under the Loan Documents and (ii)
such trustee shall not be entitled to exercise any of the rights of a Lender
under the Loan Documents even though such trustee may have acquired ownership
rights with respect to the pledged interest through foreclosure or otherwise.
(l) Notwithstanding anything to the contrary contained herein,
any Lender Party (a "GRANTING LENDER") may grant to a special purpose funding
vehicle identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Borrower (an "SPC") the option to provide
all or any part of any Advance that such Granting Lender would otherwise be
obligated to make pursuant to this Agreement, provided that (i) nothing herein
shall constitute a commitment by any SPC to fund any Advance, and (ii) if an SPC
elects not to exercise such option or otherwise fails to make all or any part of
such Advance, the Granting Lender shall be obligated to make such Advance
pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Advance were made by such Granting Lender. Each party hereto hereby agrees
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that (i) no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement for which a Lender Party would be liable, (ii) no SPC shall
be entitled to the benefits of Sections 2.10 and 2.12 (or any other increased
costs protection provision) and (iii) the Granting Bank shall for all purposes,
including, without limitation, the approval of any amendment or waiver of any
provision of any Loan Document, remain the Lender Party of record hereunder. In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior Debt of any SPC, it will not institute against, or join
any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency, or liquidation proceeding under the
laws of the United States or any State thereof. Notwithstanding anything to the
contrary contained in this Agreement, any SPC may (i) with notice to, but
without prior consent of, the Borrower and the Administrative Agent and with the
payment of a processing fee of $500 and without paying any processing fee
therefor, assign all or any portion of its interest in any Advance to the
Granting Lender and (ii) disclose on a confidential basis any non-public
information relating to its funding of Advances to any rating agency, commercial
paper dealer or provider of any surety or guarantee or credit or liquidity
enhancement to such SPC. This subsection (k) may not be amended without the
prior written consent of each Granting Lender, all or any part of whose Advances
are being funded by the SPC at the time of such amendment.
SECTION 8.08. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery by telecopier or electronic mail of an executed counterpart of a
signature page to this Agreement shall be effective as delivery of an original
executed counterpart of this Agreement.
SECTION 8.09. No Liability of the Issuing Bank. The Borrower assumes
all risks of the acts or omissions of any beneficiary or transferee of any
Letter of Credit with respect to its use of such Letter of Credit. Neither the
Issuing Bank nor any of its officers or directors shall be liable or responsible
for: (a) the use that may be made of any Letter of Credit or any acts or
omissions of any beneficiary or transferee in connection therewith; (b) the
validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by the Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that the
Borrower shall have a claim against the Issuing Bank, and the Issuing Bank shall
be liable to the Borrower, to the extent of any direct, but not consequential,
damages suffered by the Borrower that the Borrower proves were caused by (i) the
Issuing Bank's willful misconduct or gross negligence as determined in a final,
non-appealable judgment by a court of competent jurisdiction in determining
whether documents presented under any Letter of Credit comply with the terms of
the Letter of Credit or (ii) the Issuing Bank's willful failure to make lawful
payment under a Letter of Credit after the presentation to it of a draft and
certificates strictly complying with the terms and conditions of the Letter of
Credit. In furtherance and not in limitation of the foregoing, the Issuing Bank
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may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.
SECTION 8.10. Confidentiality. Neither any Agent nor any Lender Party
shall disclose any Confidential Information to any Person without the consent of
the Borrower, other than (a) to such Agent's or such Lender Party's Affiliates
and their officers, directors, employees, accountants, attorneys, agents and
other advisors (collectively, "LENDER REPRESENTATIVES") and to actual or
prospective Eligible Assignees and participants, and then only on a confidential
basis, (b) as required by any law, rule or regulation or judicial process, (c)
as requested or required by any state, Federal or foreign authority or examiner
(including the National Association of Insurance Commissioners or any similar
organization or quasi-regulatory authority) regulating such Lender Party, (d) to
any rating agency when required by it, provided that, prior to any such
disclosure, such rating agency shall undertake to preserve the confidentiality
of any Confidential Information relating to the Loan Parties received by it from
such Lender Party, (e) in connection with any litigation or proceeding to which
such Agent or such Lender Party or any of its Affiliates may be a party to the
extent required or requested to so disclose by the applicable Governmental
Authority or (f) in connection with the exercise of any right or remedy under
this Agreement or any other Loan Document. Notwithstanding anything herein to
the contrary, any Agent or Lender Party may disclose to any and all persons,
without limitation of any kind, the U.S. tax treatment and tax structure of the
transactions as contemplated hereunder and all materials of any kind (including
opinions or other tax analyses) that are provided to such Agent or Lender Party,
relating to such U.S. tax treatment and tax structure.
SECTION 8.11. Release of Collateral. Upon the sale, lease, transfer or
other disposition of any item of Collateral or the incurrence of Debt (so long
as permitted hereby) in respect of fixed assets of any Loan Party (including,
without limitation, as a result of the sale, in accordance with the terms of the
Loan Documents, of the Loan Party that owns such Collateral and as a result of
the designation by any Loan Party after the Closing Date of any of its
Subsidiaries as a Non-Recourse Subsidiary) in accordance with the terms of the
Loan Documents, the Collateral Agent will release its Lien on and security
interest in such Collateral and, at the Borrower's expense, execute and deliver
to such Loan Party such documents as such Loan Party may reasonably request to
evidence the release of such item of Collateral from the assignment and security
interest granted under the Collateral Documents in accordance with the terms of
the Loan Documents.
SECTION 8.12. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or Federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the fullest extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
117
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or any of the other Loan Documents in the
courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any of the
other Loan Documents to which it is a party in any New York State or Federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
SECTION 8.13. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.14. Waiver of Jury Trial. Each of the Borrower, the Agents
and the Lender Parties irrevocably waives all right to trial by jury in any
action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to any of the Loan Documents, the
Advances, the Letters of Credit or the actions of any Agent or any Lender Party
in the negotiation, administration, performance or enforcement thereof.
SECTION 8.15. Required Environmental Tasks.
(a) Approved Properties. The Properties listed on Schedule
8.15 attached hereto as or otherwise deemed by the Administrative Agent to be
"Properties Approved For The Borrowing Base" are Eligible Real Property and are
not subject to environmental reporting requirements under this Section 8.15.
(b) Conditionally Approved Properties. (i) The Properties
listed on Schedule 8.15 attached hereto as or otherwise deemed by the
Administrative Agent to be "Properties Conditionally Approved For The Borrowing
Base" are Eligible Real Property, subject to the Borrower's compliance with the
provisions of this Section 8.15(b) and to the Administrative Agent's other
rights under this Agreement with respect to the designation of Eligible Real
Property. In respect of each such Property, the Borrower shall, at the
Borrower's sole cost and expense, initiate, diligently prosecute and complete,
within a commercially reasonable time after the date of this Agreement, each
action listed on Schedule 8.15 attached hereto as a "Required Environmental
Task" (each, a "REQUIRED ENVIRONMENTAL TASK"). In the event that the
Administrative Agent agrees, pursuant to Section 8.15(c) hereof, that all
Required Environmental Tasks for any specific Property Conditionally Approved
For The Borrowing Base have been completed or waived, that Property shall
thereafter be deemed and be treated in all respects as a "Property Approved For
The Borrowing Base".
(ii) If the Borrower fails to complete any Required
Environmental Task with respect to a specific Property Conditionally Approved
For The Borrowing Base within a commercially reasonable time and the
Administrative Agent does not agree to waive such Required Environmental Task,
the Administrative Agent shall so notify the Borrower in writing. Within thirty
(30) days after the Borrower receives such notice, the Borrower and the
Administrative Agent shall discuss in good faith such noncompliance in an effort
to clarify and specify the tasks relating to such Required Environmental Task
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that still require completion. In the event that, after the submission of the
next two (2) quarterly reports required by Section 8.15(c) hereof, the
Administrative Agent still determines that completion of the same Required
Environmental Task is not being completed within a commercially reasonable time
and the Administrative Agent does not agree to waive such Required Environmental
Task, the Administrative Agent may deem the applicable Property not to be
Eligible Real Estate.
(c) Completion of Required Environmental Tasks. With respect
to Properties Conditionally Approved For The Borrowing Base, until all of the
Required Environmental Tasks are completed to the satisfaction of the
Administration Agent, the Borrower shall provide to the Administrative Agent on
each January 1, April 1, July 1 and October 1 from the Effective Date through
the Termination Date, a report detailing the status of the efforts to complete
such Required Environmental Tasks. In addition to or as a part of such quarterly
reports, when the Borrower completes all Required Environmental Tasks with
respect to a Property, it shall report such completion to the Administrative
Agent.
SECTION 8.16. Agreement to Comply With Court Order. Each of the Lender
Parties hereby accepts and agrees to abide by all of the terms of the order (the
"APPROVAL ORDER") as set forth in Exhibit H hereto entered by the bankruptcy
court on September 22, 2006 in connection with the G-I Holdings bankruptcy
proceedings and further agrees not to take any action (including, without
limitation, appearing in certain litigation proceedings specified in the
Approval Order) which could result in the loss of any waivers, or other rights
granted in such Approval Order for the benefit of the Agents and/or the Lender
Parties.
SECTION 8.17. Patriot Act Notice. Each Lender Party and each Agent (for
itself and not on behalf of any Lender Party) hereby notifies the Loan Parties
that pursuant to the requirements of the USA PATRIOT ACT (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the "PATRIOT ACT"), it is required
to obtain, verify and record information that identifies each Loan Party, which
information includes the name and address of such Loan Party and other
information that will allow such Lender Party or such Agent, as applicable, to
identify such Loan Party in accordance with the Patriot Act. In such connection,
any Lender Party or Agent may also request corporate formation documents, or
other forms of identification, to verify information provided. The Borrower
shall, and shall cause each of its Subsidiaries to, provide such information and
take such actions as are reasonably requested by any Agent or any Lender Party
in order to assist the Agents and the Lender Parties in maintaining compliance
with the Patriot Act.
SECTION 8.18. Assignment by Existing Lenders. Each Existing Lender
hereby agrees to sell and assign on the Effective Date, in accordance with
Section 2.01(a), to any Initial Lender, such portion of such Existing Lender's
rights and obligations under the Existing Credit Agreement, including, without
limitation, any outstanding loans or advances thereunder and any participation
in any Existing Letters of Credit, as shall be required for the Revolving Credit
Commitments of each Initial Lender (including without limitation, any such
Existing Lender in its capacity as an Initial Lender), to be as set forth on
Schedule I, with each such Initial Lender holding a Pro Rata Share of the
outstanding Revolving Credit Advances, in each case for an amount equal to the
119
principal balance of all such loans sold and assigned by such Existing Lender.
Each Existing Lender assigning its rights and obligations under the Existing
Credit Agreement in accordance with this Section 8.18: (i) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with any Loan
Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, any
Loan Document or any other instrument or document furnished pursuant thereto;
and (ii) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Loan Party or the performance or
observance by any Loan Party of any of its obligations under any Loan Document
or any other instrument or document furnished pursuant thereto. No Existing
Lender that is not also an Initial Lender shall have any liability or obligation
under this Agreement or the Loan Documents. Each Existing Lender agrees that,
upon the Administrative Agent's request, it shall execute and deliver to the
Administrative Agent an Assignment and Acceptance to evidence such sale and
purchase and shall deliver to the Administrative Agent any Note (if the assigned
loans are evidenced by Notes) subject to such Assignment and Acceptance;
provided, however, that the failure of such Existing Lender to execute an
Assignment and Acceptance shall not render such sale and purchase (and the
corresponding assignment) invalid.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
BUILDING MATERIALS CORPORATION OF AMERICA
By /s/ John M. Maitner
----------------------------------------------
Name: John M. Maitner
Title: Vice President and Treasurer
CITICORP USA, INC.,
as Administrative Agent and Collateral
Monitoring Agent
By /s/ Jeffrey Nitz
----------------------------------------------
Name: Jeffrey Nitz
Title: Director
CITIGROUP GLOBAL MARKETS INC., as a Joint Lead
Arranger and a Joint Book Manager
By /s/ Jeffrey Nitz
----------------------------------------------
Name: Jeffrey Nitz
Title: Director
DEUTSCHE BANK SECURITIES INC., as a Joint Lead
Arranger, a Joint Book Manager and Syndication
Agent
By /s/ Frank Fazio
----------------------------------------------
Name: Frank Fazio
Title: Director
By /s/ Marguerite Sutton
----------------------------------------------
Name: Marguerite Sutton
Title: Director
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Co-Documentation Agent
By /s/ Evelyn Kusold
----------------------------------------------
Name: Evelyn Kusold
Title: Vice President
121
JPMORGAN CHASE BANK, N.A.
as Co-Documentation Agent
By /s/ John M. Hariaczyi
----------------------------------------------
Name: John M. Hariaczyi
Title: Vice President
WACHOVIA BANK, N.A.,
as Co-Documentation Agent
By /s/ Thomas Grabosky
----------------------------------------------
Name: Thomas Grabosky
Title: Director
INITIAL LENDERS
CITICORP USA, INC.
By /s/ Jeffrey Nitz
----------------------------------------------
Name: Jeffrey Nitz
Title: Director
DEUTSCHE BANK TRUST COMPANY AMERICAS
By /s/ Marguerite Sutton
----------------------------------------------
Name: Marguerite Sutton
Title: Director
By /s/ Frank Fazio
----------------------------------------------
Name: Frank Fazio
Title: Director
THE CIT GROUP/BUSINESS CREDIT, INC.,
By /s/ Evelyn Kusold
----------------------------------------------
Name: Evelyn Kusold
Title: Vice President
JPMORGAN CHASE BANK, N.A.
By /s/ John M. Hariaczyi
----------------------------------------------
Name: John M. Hariaczyi
Title: Vice President
122
WACHOVIA BANK, N.A.,
By /s/ Thomas Grabosky
----------------------------------------------
Name: Thomas Grabosky
Title: Director
BANK OF AMERICA, N.A.
By /s/ Robert Scalzitti
----------------------------------------------
Name: Robert Scalzitti
Title: Vice President
NATIONAL CITY BUSINESS CREDIT, INC.
By /s/ Jason Hanes
----------------------------------------------
Name: Jason Hanes
Title: Vice President
WELLS FARGO FOOTHILL, INC.
By /s/ Juan Barrera
----------------------------------------------
Name: Juan Barrera
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By /s/ Rebecca A. Ford
----------------------------------------------
Name: Rebecca A. Ford
Title: Duly Authorized Signatory
UPS CAPITAL CORPORATION
By /s/ John P. Holloway
----------------------------------------------
Name: John P. Holloway
Title: Director of Portfolio Management
INITIAL ISSUING BANK AND INITIAL SWING LINE BANK
CITICORP USA, INC.
By /s/ Jeffrey Nitz
----------------------------------------------
Name: Jeffrey Nitz
Title: Director
123
AS TO SECTION 8.18 ONLY:
GMAC COMMERCIAL FINANCE LLC
By /s/ Daniel J. Murray
----------------------------------------------
Name: Daniel J. Murray
Title: Director
124