EXHIBIT 10.3
SECOND AMENDED AND RESTATED
CREDIT AND GUARANTY AGREEMENT
DATED AS OF AUGUST [ ], 2004
AMONG
BERRY PLASTICS CORPORATION,
BPC HOLDING CORPORATION,
CERTAIN SUBSIDIARIES OF BERRY PLASTICS CORPORATION
AS GUARANTORS,
VARIOUS LENDERS,
GOLDMAN SACHS CREDIT PARTNERS L.P.,
AS ADMINISTRATIVE AGENT,
JPMORGAN CHASE BANK,
AS SYNDICATION AGENT,
FLEET NATIONAL BANK,
AS COLLATERAL AGENT, ISSUING BANK AND SWING LINE LENDER,
AND
THE ROYAL BANK OF SCOTLAND
AND
GENERAL ELECTRIC CAPITAL CORPORATION,
AS CO-DOCUMENTATION AGENTS
________________________________________________________
$465,525,000 SENIOR SECURED CREDIT FACILITIES
________________________________________________________
NY12534:136764.9
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS AND INTERPRETATION...............................2
1.1. DEFINITIONS. The following terms used herein, including
in the preamble, recitals, exhibits and schedules
hereto, shall have the following meanings:...................2
1.2. ACCOUNTING TERMS. Except as otherwise expressly
provided herein, all accounting terms not otherwise
defined herein shall have the meanings assigned to them
in conformity with GAAP as in effect from time to time;
provided, if Company notifies Administrative Agent that
Company requests an amendment to any provision hereof to
eliminate the effect of any change occurring after the
date hereof in GAAP or in the application thereof to the
operation of such provisions, regardless of whether any
such notice is given before or after such change in GAAP
or in the application thereof, then such provision shall
be interpreted on the basis of GAAP in effect and
applied immediately before such change shall have become
effective until such notice shall have been withdrawn or
such provision amended in accordance herewith. Subject
to the foregoing, calculations in connection with the
definitions, covenants and other provisions hereof shall
utilize accounting principles and policies in conformity
with those used to prepare the Historical Financial
Statements..................................................38
1.3. INTERPRETATION, ETC. Any of the terms defined herein
may, unless the context otherwise requires, be used in
the singular or the plural, depending on the reference.
References herein to any Section, Appendix, Schedule or
Exhibit shall be to a Section, an Appendix, a Schedule
or an Exhibit, as the case may be, hereof unless
otherwise specifically provided. The use herein of the
word "include" or "including", when following any
general statement, term or matter, shall not be
construed to limit such statement, term or matter to the
specific items or matters set forth immediately
following such word or to similar items or matters,
whether or not nonlimiting language (such as "without
limitation" or "but not limited to" or words of similar
import) is used with reference thereto, but rather shall
be deemed to refer to all other items or matters that
fall within the broadest possible scope of such general
statement, term or matter. Except as otherwise
specifically provided, all reference herein to any
Person shall mean such Person and its permitted
i
successors and assigns and all references herein to any
document, instrument or agreement shall mean such
document, instrument or agreement as amended,
supplemented or modified from time to time, to the
extent not prohibited by this Agreement.....................38
SECTION 2. LOANS AND LETTERS OF CREDIT.................................39
2.1. TERM LOANS..................................................39
2.2. INCREMENTAL TERM LOANS. Company and any one or more
Lenders or New Lenders may from time to time agree that
such Lenders shall make one or more Incremental Term
Loans, which shall constitute Loans for all purposes of
this Agreement, by executing and delivering to the
Administrative Agent an Incremental Term Loan Notice,
substantially in the form of Exhibit A-4, not less than
10 Business Days prior to the Applicable Incremental
Term Loan Closing Date, specifying (i) the principal
amount of such Incremental Term Loan, (ii) the
applicable Incremental Term Loan Closing Date, (iii) the
applicable Incremental Term Loan Maturity Date, (iv) the
amortization schedule for such Incremental Term Loan and
(v) the Applicable Margin for such Incremental Term
Loan; provided that, (A) after giving pro forma effect
to the making of such Incremental Term Loan and any
Permitted Acquisition to be financed with the proceeds
thereof, the Leverage Ratio shall be less than or equal
to 3.00:1.00 (calculated in accordance with Section
6.8(d)(ii) and in such a manner as to exclude from
Consolidated Total Debt any Indebtedness which is not
secured by a Lien or which by its terms ranks junior in
right of payment to that of the Lenders under this
Agreement), (B) no Default or Event of Default has
occurred and is continuing or would result after giving
effect to the making of such Incremental Term Loan or
the application of the proceeds therefrom, (C) the
calculation of interest in respect of such Incremental
Term Loan as set forth in the applicable Incremental
Term Loan Notice is based on the Base Rate or the
Eurodollar Rate as defined substantially in this
Agreement and the maximum Applicable Margin in respect
of such Incremental Term Loan shall not be greater than
0.50% above the Applicable Margin then in effect, or
which could be in effect under any set of circumstances
thereafter, for the Term Loan, (D) such Incremental Term
Loan shall otherwise be on the same terms and conditions
as those generally applicable to the Loans made under
this Agreement, (E) the aggregate principal amount
outstanding of Incremental Term Loans pursuant to this
ii
Section 2.2 after giving effect to such Incremental Term
Loan shall not exceed $150,000,000, (F) each borrowing
of an Incremental Term Loan pursuant to this Section 2.2
shall be in a minimum amount of (I) $25,000,000 or (II)
the difference of $150,000,000 and the sum of the
aggregate principal amount of all Incremental Term Loans
then outstanding, (G) the average weighted maturity of
all Incremental Term Loans outstanding, after giving
effect to such Incremental Term Loan, shall not be less
than the remaining term of the Term Loan (H) any
Incremental Term Loan Maturity Date shall be on or after
the Term Loan Maturity Date and (I) the Chief Financial
Officer of each of Holdings and Company shall have
executed and delivered to the Administrative Agent on
the Incremental Term Loan Closing Date an officer's
certificate certifying compliance with the requirements
of this Section 2.2.........................................41
2.3. REVOLVING LOANS.............................................41
2.4. ISSUANCE OF LETTERS OF CREDIT AND PURCHASE OF
PARTICIPATIONS THEREIN......................................43
2.5. SWING LINE LOANS............................................47
2.6. PRO RATA SHARES; AVAILABILITY OF FUNDS......................50
2.7. USE OF PROCEEDS. The proceeds of the Term Loans made on
the Effective Date shall be applied by Company on the
Effective Date to prepay Term Loans and Delayed Draw
Loans (as defined in the Existing Agreement) outstanding
under the Existing Agreement and, after prepayment of
such Term Loans and Delayed Draw Loans in full,
otherwise for working capital and general corporate
purposes of the Company and its Subsidiaries. The
proceeds of the Revolving Loans, Swing Line Loans and
Letters of Credit made after the Effective Date shall be
applied by Company for Permitted Acquisition Expenses
working capital and general corporate purposes of
Company and its Subsidiaries; provided, however, in no
event will the proceeds of Revolving Loans be used for
the purposes of prepaying Loans as permitted under
Section 2.14 hereof. The proceeds of any Incremental
Term Loan shall be used as set forth in the applicable
Incremental Term Loan Notice or, where and so provided,
for working capital and general corporate purposes of
Company and its Subsidiaries. No portion of the
proceeds of any Credit Extension shall be used in any
manner that causes or might cause such Credit Extension
or the application of such proceeds to violate
Regulation T, Regulation U or Regulation X of the Board
of Governors of the Federal Reserve System or any other
regulation thereof or to violate the Exchange Act...........51
iii
2.8. EVIDENCE OF DEBT; REGISTER; LENDERS' BOOKS AND RECORDS;
NOTES.......................................................51
2.9. INTEREST ON LOANS...........................................52
2.10. CONVERSION/CONTINUATION.....................................54
2.11. DEFAULT INTEREST. Upon the occurrence and during the
continuance of an Event of Default, the principal amount
of all Loans outstanding and, to the extent permitted by
applicable law, any interest payments on the Loans or
any fees or other amounts owed hereunder, shall
thereafter bear interest (including post-petition
interest in any proceeding under the Bankruptcy Code or
other applicable bankruptcy laws) payable on demand at a
rate that is 2% per annum in excess of the interest rate
otherwise payable hereunder with respect to the
applicable Loans (or, in the case of any such fees and
other amounts, at a rate which is 2% per annum in excess
of the interest rate otherwise payable hereunder for
Base Rate Loans); provided, in the case of Eurodollar
Rate Loans, upon the expiration of the Interest Period
in effect at the time any such increase in interest rate
is effective such Eurodollar Rate Loans shall thereupon
become Base Rate Loans and shall thereafter bear
interest payable upon demand at a rate which is 2% per
annum in excess of the interest rate otherwise payable
hereunder for Base Rate Loans. Payment or acceptance of
the increased rates of interest provided for in this
Section 2.11 is not a permitted alternative to timely
payment and shall not constitute a waiver of any Event
of Default or otherwise prejudice or limit any rights or
remedies of Administrative Agent or any Lender..............54
2.12. FEES........................................................55
2.13. SCHEDULED PAYMENTS/COMMITMENT REDUCTIONS....................56
2.14. VOLUNTARY PREPAYMENTS/COMMITMENT REDUCTIONS.................57
2.15. MANDATORY PREPAYMENTS/COMMITMENT REDUCTIONS.................58
2.16. APPLICATION OF PREPAYMENTS/REDUCTIONS.......................60
2.17. GENERAL PROVISIONS REGARDING PAYMENTS.......................62
2.18. RATABLE SHARING. Lenders hereby agree among themselves
that, except as otherwise provided in the Collateral
Documents with respect to amounts realized from the
exercise of rights with respect to Liens on the
Collateral, if any of them shall, whether by voluntary
payment (other than a voluntary prepayment of Loans made
and applied in accordance with the terms hereof),
through the exercise of any right of set-off or banker's
lien, by counterclaim or cross action or by the
enforcement of any right under the Credit Documents or
iv
otherwise, or as adequate protection of a deposit
treated as cash collateral under the Bankruptcy Code,
receive payment or reduction of a proportion of the
aggregate amount of principal, interest, amounts payable
in respect of Letters of Credit, fees and other amounts
then due and owing to such Lender hereunder or under the
other Credit Documents (collectively, the "AGGREGATE
AMOUNTS DUE" to such Lender) which is greater than the
proportion received by any other Lender in respect of
the Aggregate Amounts Due to such other Lender, then the
Lender receiving such proportionately greater payment
shall (a) notify Administrative Agent and each other
Lender of the receipt of such payment and (b) apply a
portion of such payment to purchase participations
(which it shall be deemed to have purchased from each
seller of a participation simultaneously upon the
receipt by such seller of its portion of such payment)
in the Aggregate Amounts Due to the other Lenders so
that all such recoveries of Aggregate Amounts Due shall
be shared by all Lenders in proportion to the Aggregate
Amounts Due to them; provided, if all or part of such
proportionately greater payment received by such
purchasing Lender is thereafter recovered from such
Lender upon the bankruptcy or reorganization of Company
or otherwise, those purchases shall be rescinded and the
purchase prices paid for such participations shall be
returned to such purchasing Lender ratably to the extent
of such recovery, but without interest. Company
expressly consents to the foregoing arrangement and
agrees that any holder of a participation so purchased
may exercise any and all rights of banker's lien,
set-off or counterclaim with respect to any and all
monies owing by Company to that holder with respect
thereto as fully as if that holder were owed the amount
of the participation held by that holder....................63
2.19. MAKING OR MAINTAINING EURODOLLAR RATE LOANS.................64
2.20. INCREASED COSTS; CAPITAL ADEQUACY...........................66
2.21. TAXES; WITHHOLDING, ETC.....................................67
2.22. OBLIGATION TO MITIGATE. Each Lender agrees that, as
promptly as practicable after the officer of such Lender
responsible for administering its Commitments, Loans or
Letters of Credit, as the case may be, becomes aware of
the occurrence of an event or the existence of a
condition that would cause such Lender to become an
Affected Lender or that would entitle such Lender to
receive payments under Section 2.19, 2.20 or 2.21, it
will, to the extent not inconsistent with the internal
policies of such Lender and any applicable legal or
regulatory restrictions, use reasonable efforts to (a)
v
make, issue, fund or maintain its Commitments, Loans and
Letters of Credit, including any Affected Loans, through
another office of such Lender, or (b) take such other
measures as such Lender may deem reasonable, if as a
result thereof the circumstances which would cause such
Lender to be an Affected Lender would cease to exist or
the additional amounts which would otherwise be required
to be paid to such Lender pursuant to Section 2.19, 2.20
or 2.21 would be materially reduced and if, as
determined by such Lender in its sole discretion, the
making, issuing, funding or maintaining of such
Commitments, Loans or Letters of Credit through such
other office or in accordance with such other measures,
as the case may be, would not otherwise adversely affect
such Commitments, Loans or Letters of Credit or the
interests of such Lender; provided, such Lender will not
be obligated to utilize such other office pursuant to
this Section 2.22 unless Company agrees to pay all
incremental expenses incurred by such Lender as a result
of utilizing such other office as described in
clause (a) above. A certificate as to the amount of any
such expenses payable by Company pursuant to this
Section 2.22 (setting forth in reasonable detail the
basis for requesting such amount) submitted by such
Lender to Company (with a copy to Administrative Agent)
shall be conclusive absent manifest error...................70
2.23. DEFAULTING LENDERS. Anything contained herein to the
contrary notwithstanding, in the event that any Lender,
at the direction or request of any regulatory agency or
authority, defaults (a "DEFAULTING LENDER") in its
obligation to fund (a "FUNDING DEFAULT") any Revolving
Loan under Section 2.3(b)(iv) or its portion of any
unreimbursed payment under Section 2.4(e) (in each case,
a "DEFAULTED LOAN"), then (a) during any Default Period
with respect to such Defaulting Lender, such Defaulting
Lender shall be deemed not to be a "Lender" for purposes
of voting on any matters (including the granting of any
consents or waivers) with respect to any of the Credit
Documents; (b) to the extent permitted by applicable
law, until such time as the Default Excess with respect
to such Defaulting Lender shall have been reduced to
zero, (i) any voluntary prepayment of the Revolving
Loans shall, if Company so directs at the time of making
such voluntary prepayment, be applied to the Revolving
Loans of other Lenders as if such Defaulting Lender had
no Revolving Loans outstanding and the Revolving
Exposure of such Defaulting Lender were zero, and
(ii) any mandatory prepayment of the Revolving Loans
vi
shall, if Company so directs at the time of making such
mandatory prepayment, be applied to the Revolving Loans
of other Lenders (but not to the Revolving Loans of such
Defaulting Lender) as if such Defaulting Lender had
funded all Defaulted Loans of such Defaulting Lender, it
being understood and agreed that Company shall be
entitled to retain any portion of any mandatory
prepayment of the Revolving Loans that is not paid to
such Defaulting Lender solely as a result of the
operation of the provisions of this clause (b); (c) such
Defaulting Lender's Revolving Commitment and outstanding
Revolving Loans and such Defaulting Lender's Pro Rata
Share of the Letter of Credit Usage shall be excluded
for purposes of calculating the Revolving Commitment fee
payable to Lenders in respect of any day during any
Default Period with respect to such Defaulting Lender,
and such Defaulting Lender shall not be entitled to
receive any Revolving Commitment fee pursuant to Section
2.11 with respect to such Defaulting Lender's Revolving
Commitment in respect of any Default Period with respect
to such Defaulting Lender; and (d) the Total Utilization
of Revolving Commitments as at any date of determination
shall be calculated as if such Defaulting Lender had
funded all Defaulted Loans of such Defaulting Lender.
No Revolving Commitment of any Lender shall be increased
or otherwise affected, and, except as otherwise
expressly provided in this Section 2.23, performance by
Company of its obligations hereunder and the other
Credit Documents shall not be excused or otherwise
modified as a result of any Funding Default or the
operation of this Section 2.23. The rights and remedies
against a Defaulting Lender under this Section 2.23 are
in addition to other rights and remedies which Company
may have against such Defaulting Lender with respect to
any Funding Default and which Administrative Agent or
any Lender may have against such Defaulting Lender with
respect to any Funding Default..............................70
2.24. REMOVAL OR REPLACEMENT OF A LENDER. Anything contained
herein to the contrary notwithstanding, in the event
that: (a) any Lender (an "INCREASED-COST LENDER") shall
give notice to Company that such Lender is an Affected
Lender or such Lender becomes entitled to receive
payments under Section 2.20 or 2.21, the circumstances
which have caused such Lender to be an Affected Lender
or which entitle such Lender to receive such payments
shall remain in effect, and such Lender shall fail to
(i) withdraw such notice or (ii) waive in writing the
vii
right to receive the applicable payments, in each of
cases (i) and (ii), within five Business Days after
Company's request for such withdrawal or waiver; or (b)
any Lender shall become a Defaulting Lender, the Default
Period for such Defaulting Lender shall remain in
effect, and such Defaulting Lender shall fail to cure
the default as a result of which it has become a
Defaulting Lender within five Business Days after
Company's request that it cure such default; or (c) in
connection with any proposed amendment, modification,
termination, waiver or consent with respect to any of
the provisions hereof as contemplated by Section
10.5(b), the consent of Requisite Lenders shall have
been obtained but the consent of one or more of such
other Lenders (each a "NON-CONSENTING LENDER") whose
consent is required shall not have been obtained; then,
with respect to each such Increased-Cost Lender,
Defaulting Lender or Non-Consenting Lender (the
"TERMINATED LENDER"), Company may, by giving written
notice to Administrative Agent and any Terminated Lender
of its election to do so, elect to cause such Terminated
Lender (and such Terminated Lender hereby irrevocably
agrees) to assign its outstanding Loans and its
Revolving Commitments, if any, in full to one or more
Eligible Assignees (each a "REPLACEMENT LENDER") in
accordance with the provisions of Section 10.6 and
Terminated Lender shall pay any fees payable thereunder
in connection with such assignment; provided, (1) on the
date of such assignment, the Replacement Lender shall
pay to Terminated Lender an amount equal to the sum of
(A) an amount equal to the principal of, and all accrued
interest on, all outstanding Loans of the Terminated
Lender, (B) an amount equal to all unreimbursed drawings
that have been funded by such Terminated Lender,
together with all then unpaid interest with respect
thereto at such time and (C) an amount equal to all
accrued, but theretofore unpaid fees owing to such
Terminated Lender pursuant to Section 2.12; (2) on the
date of such assignment, Company shall pay any amounts
payable to such Terminated Lender pursuant to
Section 2.19, 2.20 or 2.21 or otherwise as if it were a
prepayment; and (3) in the event such Terminated Lender
is a Non-Consenting Lender, each Replacement Lender
shall consent, at the time of such assignment, to each
matter in respect of which such Terminated Lender was a
Non-Consenting Lender; provided, Company may not make
such election with respect to any Terminated Lender that
is also an Issuing Bank unless, prior to the
viii
effectiveness of such election, Company shall have
caused each outstanding Letter of Credit issued thereby
to be cancelled. Upon the prepayment of all amounts
owing to any Terminated Lender and the termination of
such Terminated Lender's Revolving Commitments, if any,
such Terminated Lender shall no longer constitute a
"Lender" for purposes hereof; provided, any rights of
such Terminated Lender to indemnification hereunder
shall survive as to such Terminated Lender..................71
SECTION 3. CONDITIONS PRECEDENT........................................72
3.1. CLOSING DATE. The obligation of any Lender to make a
Credit Extension under the Original Agreement on the
Closing Date was subject to the satisfaction, or waiver
in accordance with Section 10.5, of the following
conditions on or before the Closing Date. Solely for
purposes of the historical conditions set forth in this
Section 3.1, capitalized terms used in this Section 3.1
and defined in the Original Agreement shall have the
meanings specified in the Original Agreement as
applicable as of the Closing Date...........................72
3.2. CONDITIONS TO EACH CREDIT EXTENSION.........................78
3.3. CONDITIONS TO EFFECTIVENESS. This Agreement and the
obligation of each Term Loan Lender to make a Term Loan
in the amount of such Lender's Term Loan Commitment as
set forth in Annex A-1 of this Agreement on the
Effective Date shall become effective on August [ ],
2004 (the "EFFECTIVE DATE") only upon:......................80
3.4. EFFECT OF AGREEMENT ON OTHER CREDIT DOCUMENTS. By its
signature on this Agreement, each Credit Party
acknowledges and agrees that this Agreement is a valid
amendment of the Existing Agreement made in accordance
with the terms thereof and binding against such Credit
Party and that each Credit Document (other than this
Agreement) shall continue to be valid and binding
against such Credit Party and its assets and properties
as of and after the Effective Date (with any references
to the Existing Agreement in any such Credit Document
construed as references to this Agreement)..................81
SECTION 4. REPRESENTATIONS AND WARRANTIES..............................81
4.1. ORGANIZATION; REQUISITE POWER AND AUTHORITY;
QUALIFICATION. Each of Holdings and its Subsidiaries
(a) is duly organized, validly existing and in good
standing under the laws of its jurisdiction of
organization as identified in Schedule 4.1, (b) has all
requisite power and authority to own and operate its
ix
properties, to carry on its business as now conducted
and as proposed to be conducted, to enter into the
Credit Documents to which it is a party and to carry out
the transactions contemplated thereby, and (c) is
qualified to do business and in good standing in every
jurisdiction where its assets are located and wherever
necessary to carry out its business and operations,
except in jurisdictions where the failure to be so
qualified or in good standing has not had, and could not
reasonably be expected to have, a Material Adverse
Effect......................................................81
4.2. CAPITAL STOCK AND OWNERSHIP. The Capital Stock of each
of Holdings and its Subsidiaries has been duly
authorized and validly issued and is fully paid and
non-assessable. Except as set forth on Schedule 4.2, as
of the date hereof, there is no existing option,
warrant, call, right, commitment or other agreement to
which Holdings or any of its Subsidiaries is a party
requiring, and there is no Capital Stock of Holdings or
any of its Subsidiaries outstanding which upon
conversion or exchange would require, the issuance by
Holdings or any of its Subsidiaries of any additional
Capital Stock of Holdings or any of its Subsidiaries or
other Securities convertible into, exchangeable for or
evidencing the right to subscribe for or purchase,
Capital Stock of Holdings or any of its Subsidiaries.
Schedule 4.2 correctly sets forth the ownership interest
of Holdings and each of its Subsidiaries in their
respective Subsidiaries as of the Effective Date............81
4.3. DUE AUTHORIZATION. The transactions contemplated by the
Credit Documents are within the corporate powers of each
Credit Party and the execution, delivery and performance
of the Credit Documents have been duly authorized by all
necessary action on the part of each Credit Party that
is a party thereto..........................................81
4.4. GUARANTOR SUBSIDIARIES. Schedule 4.4 correctly sets
forth, as of the Effective Date, all of Company's
Guarantor Subsidiaries who are parties to this
Agreement...................................................82
4.5. NO CONFLICT. The execution, delivery and performance by
Credit Parties of the Credit Documents to which they are
parties and the consummation of the transactions
contemplated by the Credit Documents do not and will not
(a) violate any provision of any law or any governmental
rule or regulation applicable to Holdings or any of its
Subsidiaries, any of the Organizational Documents of
Holdings or any of its Subsidiaries, or any order,
judgment or decree of any court or other agency of
government binding on Holdings or any of its
Subsidiaries except to the extent such violation,
individually or in the aggregate, could not reasonably
x
be expected to have a Material Adverse Effect;
(b) conflict with, result in a breach of or constitute
(with due notice or lapse of time or both) a default
under any Contractual Obligation of Holdings or any of
its Subsidiaries except to the extent such conflict,
breach or default, individually or in the aggregate,
could not reasonably be expected to have a Material
Adverse Effect; (c) result in or require the creation or
imposition of any Lien upon any of the properties or
assets of Holdings or any of its Subsidiaries (other
than any Liens created under any of the Credit Documents
in favor of Collateral Agent, on behalf of Secured
Parties) except to the extent that the creation or
imposition of any such Liens, individually or in the
aggregate, could not reasonably be expected to have a
Material Adverse Effect; or (d) require any approval of
stockholders, members or partners or any approval or
consent of any Person under any Contractual Obligation
of Holdings or any of its Subsidiaries, except for such
approvals or consents which will be obtained on or
before the Effective Date and disclosed in writing to
Lenders and except for any such approvals or consents
the failure of which to obtain, individually or in the
aggregate, could not reasonably be expected to have a
Material Adverse Effect.....................................82
4.6. GOVERNMENTAL CONSENTS. The execution, delivery and
performance by Credit Parties of the Credit Documents to
which they are parties and the consummation of the
transactions contemplated by the Credit Documents do not
and will not require any registration with, consent or
approval of, or notice to, or other action to, with or
by, any Governmental Authority, except for such
registrations, consents, approvals, notices or actions
the failure of which to obtain, individually or in the
aggregate, could not reasonably be expected to have a
Material Adverse Effect.....................................82
4.7. BINDING OBLIGATION. Each Credit Document has been duly
executed and delivered by each Credit Party that is a
party thereto and is the legally valid and binding
obligation of such Credit Party, enforceable against
such Credit Party in accordance with its respective
terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or
by equitable principles relating to enforceability..........82
4.8. HISTORICAL FINANCIAL STATEMENTS. The Historical
Financial Statements were prepared in conformity with
GAAP and fairly present, in all material respects, the
financial position, on a consolidated basis, of the
Persons described in such financial statements as at the
xi
respective dates thereof and the results of operations
and cash flows, on a consolidated basis, of the entities
described therein for each of the periods then ended,
subject, in the case of any such unaudited financial
statements, to changes resulting from audit and normal
year-end adjustments. As of the Effective Date, neither
Holdings nor any of its Subsidiaries has any contingent
liability or liability for taxes, long-term lease or
unusual forward or long-term commitment that is not
reflected in the Historical Financial Statements or the
notes thereto and which in any such case is material in
relation to the business, operations, properties,
assets, condition (financial or otherwise) or prospects
of Holdings and any of its Subsidiaries taken as a
whole.......................................................82
4.9. PROJECTIONS. On and as of the Effective Date, the
Projections of Holdings and its Subsidiaries for the
period beginning with Fiscal Year 2003 through and
including Fiscal Year 2010 (the "PROJECTIONS") are based
on good faith estimates and reasonable assumptions made
by the management of Holdings; provided, the Projections
are not to be viewed as facts and that actual results
during the period or periods covered by the Projections
may differ from such Projections and that the
differences may be material; provided further, as of the
Effective Date, management of Holdings believed that the
Projections were reasonable and attainable..................83
4.10. NO MATERIAL ADVERSE CHANGE. Since December 27, 2003, no
event, circumstance or change has occurred that has
caused or evidences, either in any case or in the
aggregate, a continuing Material Adverse Effect.............83
4.11. ADVERSE PROCEEDINGS, ETC. There are no Adverse
Proceedings, individually or in the aggregate, that
could reasonably be expected to have a Material Adverse
Effect. Neither Holdings nor any of its Subsidiaries
(a) is in violation of any applicable laws (including
Environmental Laws) that, individually or in the
aggregate, could reasonably be expected to have a
Material Adverse Effect, or (b) is subject to or in
default with respect to any final judgments, writs,
injunctions, decrees, rules or regulations of any court
or any federal, state, municipal or other governmental
department, commission, board, bureau, agency or
instrumentality, domestic or foreign, that, individually
or in the aggregate, could reasonably be expected to
have a Material Adverse Effect..............................83
4.12. PAYMENT OF TAXES. Except as otherwise permitted under
Section 5.3, all material tax returns and reports of
Holdings and its Subsidiaries required to be filed by
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any of them have been timely filed, and all taxes shown
on such tax returns to be due and payable and all
material assessments, fees and other governmental
charges upon Holdings and its Subsidiaries and upon
their respective properties, assets, income, businesses
and franchises which are due and payable have been paid
when due and payable. Holdings knows of no proposed tax
assessment against Holdings or any of its Subsidiaries
which is not being actively contested by Holdings or
such Subsidiary in good faith and by appropriate
proceedings; provided, such reserves or other
appropriate provisions, if any, as shall be required in
conformity with GAAP shall have been made or provided
therefor....................................................83
4.13. PROPERTIES..................................................84
4.14. ENVIRONMENTAL MATTERS. Except as set forth on
Schedule 4.14, (i) neither Holdings nor any of its
Subsidiaries nor any of their respective Facilities or
operations are subject to any outstanding written order,
consent decree or settlement agreement with any Person
relating to any Environmental Law, any Environmental
Claim, or any Hazardous Materials Activity, (ii) there
are and, to each of Holdings' and its Subsidiaries'
knowledge, have been, no conditions, occurrences, or
Hazardous Materials Activities which could reasonably be
expected to form the basis of an Environmental Claim
against Holdings or any of its Subsidiaries, (iii)
neither Holdings nor any of its Subsidiaries has
received any letter or request for information under
Section 104 of the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C.
{section} 9604) or any comparable state law, in each of
cases (i), (ii) and (iii) that, if resolved adversely,
individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. Compliance
with all current or reasonably foreseeable future
requirements pursuant to or under Environmental Laws
could not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect. No
event or condition has occurred or is occurring with
respect to Holdings or any of its Subsidiaries relating
to any applicable Environmental Law, any Release of
Hazardous Materials, or any Hazardous Materials Activity
which individually or in the aggregate has had, or could
reasonably be expected to have, a Material Adverse
Effect, other than the events and conditions described
on Schedule 4.14 as existing on or prior to the
Effective Date..............................................84
4.15. NO DEFAULTS. Neither Holdings nor any of its
Subsidiaries is in default in the performance,
observance or fulfillment of any of the obligations,
xiii
covenants or conditions contained in any of its
Contractual Obligations, and no condition exists which,
with the giving of notice or the lapse of time or both,
could constitute such a default, except where the
consequences, direct or indirect, of such default or
defaults, if any, could not reasonably be expected to
have a Material Adverse Effect..............................85
4.16. GOVERNMENTAL REGULATION. Neither Holdings nor any of
its Subsidiaries is subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal
Power Act or the Investment Company Act of 1940 or under
any other federal or state statute or regulation which
may limit its ability to incur Indebtedness or which may
otherwise render all or any portion of the Obligations
unenforceable. Neither Holdings nor any of its
Subsidiaries is a "registered investment company" or a
company "controlled" by a "registered investment
company" or a "principal underwriter" of a "registered
investment company" as such terms are defined in the
Investment Company Act of 1940..............................85
4.17. MARGIN STOCK. Neither Holdings nor any of its
Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending
credit for the purpose of purchasing or carrying any
Margin Stock. No part of the proceeds of the Loans made
to such Credit Party will be used to purchase or carry
any such margin stock or to extend credit to others for
the purpose of purchasing or carrying any such margin
stock or for any purpose that violates, or is
inconsistent with, the provisions of Regulation T, U or
X of the Board of Governors of the Federal Reserve
System......................................................85
4.18. EMPLOYEE MATTERS. Neither Holdings nor any of its
Subsidiaries is engaged in any unfair labor practice
that could reasonably be expected to have a Material
Adverse Effect. There is (a) no unfair labor practice
complaint pending against Holdings or any of its
Subsidiaries, or to the best knowledge of Holdings and
Company, threatened against any of them before the
National Labor Relations Board and no grievance or
arbitration proceeding arising out of or under any
collective bargaining agreement that is so pending
against Holdings or any of its Subsidiaries or to the
best knowledge of Holdings and Company, threatened
against any of them, (b) no strike or work stoppage in
existence or threatened involving Holdings or any of its
Subsidiaries, and (c) to the best knowledge of Holdings
and Company, no union representation question existing
with respect to the employees of Holdings or any of its
Subsidiaries and, to the best knowledge of Holdings and
xiv
Company, no union organization activity that is taking
place, except (with respect to any matter specified in
clause (a), (b) or (c) above, either individually or in
the aggregate) such as is not reasonably likely to have
a Material Adverse Effect...................................85
4.19. EMPLOYEE BENEFIT PLANS. Except as, individually or in
the aggregate, could not reasonably be expected to have
a Material Adverse Effect, (i) Holdings, each of its
Subsidiaries and each of their respective ERISA
Affiliates are in substantial compliance with all
applicable provisions and requirements of ERISA and the
Internal Revenue Code and the regulations and published
interpretations thereunder with respect to each Employee
Benefit Plan, and have substantially performed all their
obligations under each Employee Benefit Plan, (ii) each
Employee Benefit Plan which is intended to qualify under
Section 401(a) of the Internal Revenue Code has received
a favorable determination letter from the Internal
Revenue Service indicating that such Employee Benefit
Plan is so qualified and nothing has occurred subsequent
to the issuance of such determination letter which would
cause such Employee Benefit Plan to lose its qualified
status, (iii) no liability to the PBGC (other than
required premium payments) has been or is expected to be
incurred by Holdings, any of its Subsidiaries or any of
their ERISA Affiliates, (iv) no ERISA Event has occurred
or is reasonably expected to occur, and (v) Holdings,
each of its Subsidiaries and each of their ERISA
Affiliates have complied with the requirements of
Section 515 of ERISA with respect to each Multiemployer
Plan and are not in material "default" (as defined in
Section 4219(c)(5) of ERISA) with respect to payments to
a Multiemployer Plan.)......................................85
4.20. SOLVENCY. Each Credit Party is and, upon the incurrence
of any Obligation by such Credit Party on any date on
which this representation and warranty is made and after
giving effect to the provisions of Section 7.2, will be,
Solvent.....................................................86
4.21. [Intentionally Omitted].....................................86
4.22. COMPLIANCE WITH STATUTES, ETC. Each of Holdings and its
Subsidiaries is in compliance with all applicable
statutes, regulations and orders of, and all applicable
restrictions imposed by, all Governmental Authorities,
in respect of the conduct of its business and the
ownership of its property (including compliance with
all applicable Environmental Laws with respect to any
Real Estate Asset or governing its business and the
requirements of any permits issued under such
Environmental Laws with respect to any such Real Estate
Asset or the operations of Holdings or any of its
xv
Subsidiaries), except such non-compliance that,
individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect..........86
4.23. DISCLOSURE. No representation or warranty of any Credit
Party contained in any Credit Document or in any other
documents, certificates or written statements furnished
to Lenders by or on behalf of Holdings or any of its
Subsidiaries for use in connection with the transactions
contemplated hereby at the time such representation or
warranty is made contains any untrue statement of a
material fact or omits to state a material fact (known
to Holdings or Company, in the case of any document not
furnished by either of them) necessary in order to make
the statements contained herein or therein not
misleading in light of the circumstances in which the
same were made. Any projections and pro forma financial
information contained in such materials are based upon
good faith estimates and assumptions believed by
Holdings or Company to be reasonable at the time made,
it being recognized by Lenders that such projections as
to future events are not to be viewed as facts and that
actual results during the period or periods covered by
any such projections may differ materially from the
projected results. There are no facts known (or which
should upon the reasonable exercise of diligence be
known) to Holdings or Company (other than matters of a
general economic nature) that, individually or in the
aggregate, could reasonably be expected to result in a
Material Adverse Effect and that have not been disclosed
herein or in such other documents, certificates and
statements furnished to Lenders for use in connection
with the transactions contemplated hereby...................86
SECTION 5. AFFIRMATIVE COVENANTS.......................................87
5.1. FINANCIAL STATEMENTS AND OTHER REPORTS. Holdings will
deliver to Administrative Agent and Lenders:................87
5.2. EXISTENCE. Except as otherwise permitted under Section
6.9, each Credit Party will, and will cause each of its
Subsidiaries to, at all times preserve and keep in full
force and effect its existence and all rights and
franchises, licenses and permits material to its
business; provided, no Credit Party or any of its
Subsidiaries shall be required to preserve any such
existence, right or franchise, licenses and permits if
such Person's board of directors (or similar governing
body) shall determine that the preservation thereof is
no longer desirable in the conduct of the business of
such Person, and that the loss thereof could not
reasonably be expected to have a Material Adverse
Effect......................................................90
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5.3. PAYMENT OF TAXES AND CLAIMS. Each Credit Party will,
and will cause each of its Subsidiaries to, pay all
Taxes imposed upon it or any of its properties or assets
or in respect of any of its income, businesses or
franchises before any penalty or fine accrues thereon,
and all claims (including claims for labor, services,
materials and supplies) for sums that have become due
and payable and that by law have or may become a Lien
upon any of its properties or assets, prior to the time
when any penalty or fine shall be incurred with respect
thereto; provided, no such Tax or claim need be paid if
it is being contested in good faith by appropriate
proceedings promptly instituted and diligently
conducted, so long as (a) adequate reserve or other
appropriate provision, as shall be required in
conformity with GAAP shall have been made therefor, and
(b) in the case of a charge or claim which has or may
become a Lien against any of the Collateral, such
contest proceedings conclusively operate to stay the
sale of any portion of the Collateral to satisfy such
Tax or claim................................................90
5.4. MAINTENANCE OF PROPERTIES. Each Credit Party will, and
will cause each of its Subsidiaries to, maintain or
cause to be maintained in good repair, working order and
condition, ordinary wear and tear excepted, all material
properties used or useful in the business of Holdings
and its Subsidiaries and from time to time will make or
cause to be made all appropriate repairs, renewals and
replacements thereof........................................91
5.5. INSURANCE. Holdings will maintain or cause to be
maintained, with financially sound and reputable
insurers, such public liability insurance, third party
property damage insurance, business interruption
insurance and casualty insurance with respect to
liabilities, losses or damage in respect of the assets,
properties and businesses of Holdings and its
Subsidiaries as may customarily be carried or maintained
under similar circumstances by Persons of established
reputation engaged in similar businesses, in each case
in such amounts (giving effect to self-insurance), with
such deductibles, covering such risks and otherwise on
such terms and conditions as shall be customary for such
Persons. Without limiting the generality of the
foregoing, Holdings will maintain or cause to be
maintained (a) flood insurance with respect to each
Flood Hazard Property that is located in a community
that participates in the National Flood Insurance
Program, in each case in compliance with any applicable
regulations of the Board of Governors of the Federal
Reserve System, and (b) first party, property coverage
insurance on the Collateral under such policies of
xvii
insurance, with such insurance companies, in such
amounts, with such deductibles, and covering such risks
as are at all times carried or maintained under similar
circumstances by Persons of established reputation
engaged in similar businesses. Each such policy of
insurance shall (i) name Administrative Agent, on behalf
of Lenders as an additional insured thereunder as its
interests may appear and (ii) in the case of each
casualty insurance policy, contain a loss payable clause
or endorsement, satisfactory in form and substance to
Administrative Agent, that names Administrative Agent,
on behalf of Lenders as the loss payee thereunder and
provides for at least 30 days' prior written notice to
Administrative Agent of any modification or cancellation
of such policy..............................................91
5.6. INSPECTIONS. Each Credit Party will, and will cause
each of its Subsidiaries to, permit any authorized
representatives designated by any Agent or Lender to
visit and inspect any of the properties of any Credit
Party and any of its respective Subsidiaries, to inspect
and copy its and their financial and accounting records,
and to discuss its and their affairs, finances and
accounts with its and their officers and independent
public accountants, all upon reasonable notice and at
such reasonable times during normal business hours and
as often as may reasonably be requested. If such visit
and inspection occurs at a time when no Default or Event
of Default has occurred and is continuing, such visit
and inspection shall be at the expense of such Lender
and, if such visit and inspection occur at a time when a
Default or Event of Default has occurred and is
continuing, such visit and inspection shall be paid by
Company pursuant to Section 10.2. By this provision,
each Credit Party authorizes its independent public
accountants to discuss the affairs, finances and
accounts of such Credit Party and its Subsidiaries,
provided, such Credit Party may, if its so chooses, be
present and participate in any such discussion..............91
5.7. LENDERS MEETINGS. Holdings and Company will, upon the
request of Administrative Agent or Requisite Lenders,
participate in a meeting of Administrative Agent and
Lenders once during each Fiscal Year to be held at
Company's corporate offices (or at such other location
as may be agreed to by Company and Administrative Agent)
at such time as may be agreed to by Company and
Administrative Agent........................................92
5.8. COMPLIANCE WITH LAWS. Each Credit Party will comply,
and shall cause each of its Subsidiaries and all other
Persons, if any, on or occupying any Facilities to
xviii
comply, with the requirements of all applicable laws,
rules, regulations and orders of any governmental
authority (including all Environmental Laws),
noncompliance with which could reasonably be expected to
have, individually or in the aggregate, a Material
Adverse Effect..............................................92
5.9. ENVIRONMENTAL...............................................92
5.10. SUBSIDIARIES. In the event that any Person becomes a
Domestic Subsidiary of Company, whether pursuant to a
Permitted Acquisition or otherwise, Company shall (a)
promptly cause such Domestic Subsidiary to become a
Guarantor hereunder and a party to the Intercompany
Subordination Agreement and a Grantor under the Pledge
and Security Agreement by executing and delivering to
Administrative Agent and Collateral Agent a Counterpart
Agreement, (b) promptly cause each Person holding
Capital Stock of such Domestic Subsidiary (whether or
not a Credit Party) to take all of the actions necessary
to grant and to perfect a First Priority Lien in favor
of Collateral Agent for the benefit of the Secured
Parties under the Pledge and Security Agreement in
respect of all such Capital Stock and (c) take all such
actions and execute and deliver, or cause to be executed
and delivered, all such documents, instruments,
agreements, and certificates as are similar to those
described in Sections 3.1(b), 3.1(l), 3.1(m), 3.1(n) and
3.1(p) in respect of any Collateral required to be
secured for the benefit of Secured Parties under the
Pledge and Security Agreement. In the event that any
Person becomes a Foreign Subsidiary of Company, and
Capital Stock of such Foreign Subsidiary is directly
owned by Company or by any Domestic Subsidiary of
Company, Company shall, or shall cause such Domestic
Subsidiary to, deliver, all such documents, instruments,
agreements, and certificates as are similar to those
described in Section 3.1(b), and Company shall take, or
shall cause such Domestic Subsidiary to take, all of the
actions necessary to grant and to perfect a First
Priority Lien in favor of Collateral Agent for the
benefit of Secured Parties under the Pledge and Security
Agreement in such Capital Stock. With respect to each
such Subsidiary, Company shall promptly send to
Administrative Agent written notice setting forth with
respect to such Person (i) the date on which such Person
became a Subsidiary of Company, and (ii) all of the data
required to be set forth in Schedules 4.1 and 4.2 with
respect to all Subsidiaries of Company; provided, such
written notice shall be deemed to supplement
Schedule 4.1 and 4.2 for all purposes hereof................93
xix
5.11. ADDITIONAL MATERIAL REAL ESTATE ASSETS. In the event
that any Credit Party acquires a Material Real Estate
Asset or any Real Estate Asset becomes a Material Real
Estate Asset and such interest has not otherwise been
made subject to the Lien of the Collateral Documents in
favor of Collateral Agent, for the benefit of Secured
Parties, then such Credit Party, contemporaneously with
acquiring such Material Real Estate Asset or upon any
Real Estate Asset becoming a Material Real Estate Asset,
shall take all such actions and execute and deliver, or
cause to be executed and delivered, all such mortgages,
documents, instruments, agreements, opinions and
certificates similar to those described in Sections
3.1(l), 3.1(m) and 3.1(n) with respect to each such
Material Real Estate Asset that Collateral Agent shall
reasonably request to create in favor of Collateral
Agent, for the benefit of Secured Parties, a valid and,
subject to any filing and/or recording referred to
herein, perfected First Priority security interest in
such Material Real Estate Assets. In addition to the
foregoing, Company shall, at the request of Requisite
Lenders, deliver, from time to time, to Administrative
Agent such appraisals as are required by law or
regulation of Real Estate Assets with respect to which
Collateral Agent has been granted a Lien....................94
5.12. INTEREST RATE PROTECTION. As soon as reasonably
practicable, and in any event no later than 120 days
following the Closing Date and at all times thereafter,
Company shall maintain, or caused to be maintained, in
effect one or more Interest Rate Agreements for a term
of not less than two years and otherwise in form and
substance reasonably satisfactory to Administrative
Agent and Syndication Agent, which Interest Rate
Agreements shall effectively limit the Unadjusted
Eurodollar Rate Component of the interest costs to
Company with respect to an aggregate notional principal
amount of not less than 50% of the aggregate principal
amount of Consolidated Total Debt (excluding any
Revolving Loans) outstanding from time to time (based on
the assumption that such notional principal amount was a
Eurodollar Rate Loan with an Interest Period of three
months) at a rate and on terms satisfactory to the
Syndication Agent...........................................94
5.13. FURTHER ASSURANCES. At any time or from time to time
upon the request of Administrative Agent, each Credit
Party will, at its expense, promptly execute,
acknowledge and deliver such further documents and do
such other acts and things as Administrative Agent or
Collateral Agent may reasonably request in order to
effect fully the purposes of the Credit Documents. In
xx
furtherance and not in limitation of the foregoing, each
Credit Party shall take such actions as Administrative
Agent or Collateral Agent may reasonably request from
time to time to ensure that the Obligations are
guarantied by the Guarantors and are secured by
substantially all of the assets of Holdings, and its
Subsidiaries and all of the outstanding Capital Stock of
Company and its Subsidiaries (subject to limitations
contained in the Credit Documents with respect to
Foreign Subsidiaries).......................................94
5.14. [Intentionally omitted.]....................................95
SECTION 6. NEGATIVE COVENANTS..........................................95
6.1. INDEBTEDNESS. No Credit Party shall, nor shall it
permit any of its Subsidiaries to, directly or
indirectly, create, incur, assume or guaranty, or
otherwise become or remain directly or indirectly liable
with respect to any Indebtedness, except:...................95
6.2. LIENS. No Credit Party shall, nor shall it permit any
of its Subsidiaries to, directly or indirectly, create,
incur, assume or permit to exist any Lien on or with
respect to any property or asset (including any document
or instrument in respect of goods or accounts
receivable) of Holdings or any of its Subsidiaries,
whether now owned or hereafter acquired, or any income
or profits therefrom, or file or permit the filing of,
or permit to remain in effect, any financing statement
or other similar notice of any Lien with respect to any
such property, asset, income or profits under the UCC of
any State or under any similar recording or notice
statute, except:............................................98
6.3. EQUITABLE LIEN. If any Credit Party or any of its
Subsidiaries shall create or assume any Lien upon any of
its properties or assets, whether now owned or hereafter
acquired, other than Permitted Liens, it shall make or
cause to be made effective provisions whereby the
Obligations will be secured by such Lien equally and
ratably with any and all other Indebtedness secured
thereby as long as any such Indebtedness shall be so
secured; provided, notwithstanding the foregoing, this
covenant shall not be construed as a consent by
Requisite Lenders to the creation or assumption of any
such Lien not otherwise permitted by Section 6.2...........100
6.4. NO FURTHER NEGATIVE PLEDGES. No Credit Party nor any of
its Subsidiaries shall enter into any agreement
prohibiting the creation or assumption of any Lien upon
any of its properties or assets, whether now owned or
hereafter acquired, except (a) restrictions pursuant to
the Credit Documents, any Subordinated Indebtedness
permitted under Section 6.1(c) and any Surviving
xxi
Indebtedness permitted under Section 6.1(g), provided,
in the case of Subordinated Indebtedness and Surviving
Indebtedness, that such restrictions are no more
restrictive in any material respect than the applicable
restrictions in the Senior Subordinated Note Documents;
(b) customary restrictions pending a sale of property or
assets permitted hereunder arising under an executed
agreement in respect of such sale, provided, such
restrictions relate only to the property or assets being
sold; (c) customary restrictions on assignment,
subletting or other transfers contained in leases,
licenses and similar agreements entered into in the
ordinary course of business of Company and its
Subsidiaries, provided, in each case, such restrictions
relate only to the property subject to such leases,
licenses or similar agreements; and (d) restrictions on
property or assets subject to a Lien permitted under
Section 6.2(m), provided, such restrictions relate only
to the property or assets subject to such Lien.............100
6.5. RESTRICTED JUNIOR PAYMENTS. No Credit Party shall, nor
shall it permit any of its Subsidiaries through any
manner or means or through any other Person to, directly
or indirectly, declare, order, pay, make or set apart,
or agree to declare, order, pay, make or set apart, any
sum for any Restricted Junior Payment in respect of such
Credit Party or Subsidiary, as applicable, except that
(a) Company may make regularly scheduled payments of
interest in respect of the Senior Subordinated Notes in
accordance with the terms of, and only to the extent
required by, and subject to the subordination provisions
contained in, the Senior Subordinated Note Indenture;
(b) Company may extend, renew, refinance or replace
Subordinated Indebtedness to the extent permitted under
Section 6.1(c); (c) any Subsidiary may pay dividends or
make other distributions with respect to any class of
its issued and outstanding Capital Stock or intercompany
Indebtedness permitted by clauses (i) through (iii) of
Section 6.1(b); provided, any dividends and other
distributions by a Subsidiary that is not Wholly-Owned
(i) are paid in Cash on a pro rata basis among the
holders of each applicable class of Capital Stock and
(ii) are not made to any Person other than Company or
its Subsidiaries at any time when a Default or Event of
Default shall have occurred and be continuing or shall
be caused thereby; (d) so long as no Default or Event of
Default shall have occurred and be continuing or shall
be caused thereby, Company may make Restricted Junior
Payments to Holdings (i) in an aggregate amount not to
xxii
exceed $1,000,000 in any Fiscal Year, to the extent
necessary to permit Holdings to pay general
administrative costs and expenses and to pay franchise
taxes and other fees to maintain its corporate
existence, (ii) to the extent necessary to permit
Holdings to discharge the consolidated tax liabilities
of Holdings and its Subsidiaries and (iii) to the extent
necessary to fund Restricted Junior Payments by Holdings
in accordance with clause (e) below, provided, in each
of cases (i), (ii) and (iii) Holdings promptly applies
the amount of any such Restricted Junior Payment for
such purpose; (e) so long as no Default or Event of
Default shall have occurred and be continuing or shall
be caused thereby, the following additional payments may
be made to holders or purchasers of Capital Stock of
Holdings and its Subsidiaries: (i) Holdings may purchase
its Capital Stock for Cash from present or former
officers and employees of Holdings or any of its
Subsidiaries in accordance with the terms of the
Employee Leverage Program, Stockholder Agreements and
stock option plans upon the death, disability or
termination of employment of such officer or employee,
provided, the aggregate amount of such Restricted Junior
Payment does not exceed $3,000,000 per Fiscal Year and
(ii) any Subsidiary acquired in a Permitted Acquisition
may make Cash payments to redeem, retire or repurchase
Capital Stock in such Subsidiary held by a minority
investor permitted under clause (iii) of the definition
of "Permitted Acquisition," provided, in the case of
this clause (ii), the aggregate amount of all such
payments by Holdings and its Subsidiaries (exclusive of
amounts permitted by Section 6.5(d)) does not exceed
$4,000,000 during any Fiscal Year and $12,000,000 from
the Closing Date; and (f) payments of Landis Acquisition
Financing Requirements as contemplated by the Landis
Merger Agreement...........................................101
6.6. RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS. Except as
provided herein, no Credit Party shall, nor shall it
permit any of its Subsidiaries to, create or otherwise
cause or suffer to exist or become effective any
consensual encumbrance or restriction of any kind on the
ability of any Subsidiary of Company to (a) pay
dividends or make any other distributions on any of such
Subsidiary's Capital Stock owned by Company or any other
Subsidiary of Company, (b) repay or prepay any
Indebtedness owed by such Subsidiary to Company or any
other Subsidiary of Company, or (c) make loans or
advances to Company or any other Subsidiary of Company,
provided, none of clauses (a) through (c) shall apply to
(i) customary restrictions pending a sale of a
xxiii
Subsidiary (or any of its property, assets or Capital
Stock) permitted hereunder which restrictions arise
under an executed agreement in respect of such sale and
relate only to the Subsidiary being sold, (ii)
restrictions imposed by applicable law, (iii)
restrictions pursuant to the Credit Documents, any
Subordinated Indebtedness permitted under Section
6.1(c), any Surviving Indebtedness permitted under
Section 6.1(g) and Indebtedness of Foreign Subsidiaries
under Section 6.1(i) and (iv) any restrictions existing
on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary
course of business of Company and its Subsidiaries.........101
6.7. INVESTMENTS. No Credit Party shall, nor shall it permit
any of its Subsidiaries to, directly or indirectly, make
or own any Investment in any Person, including without
limitation any Joint Venture, except:......................102
6.8. FINANCIAL COVENANTS........................................103
6.9. FUNDAMENTAL CHANGES; DISPOSITION OF ASSETS;
ACQUISITIONS. No Credit Party shall, nor shall it
permit any of its Subsidiaries to, enter into any
transaction of merger or consolidation, or liquidate,
wind-up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease or sub-lease (as
lessor or sublessor), transfer or otherwise dispose of,
in one transaction or a series of transactions, all or
any part of its business, assets or property of any kind
whatsoever, whether real, personal or mixed and whether
tangible or intangible, whether now owned or hereafter
acquired, or acquire by purchase or otherwise (other
than purchases or other acquisitions of inventory,
materials and equipment in the ordinary course of
business of Company and its Subsidiaries) the business,
property or fixed assets of, or Capital Stock or other
evidence of beneficial ownership of, any Person or any
business line or unit or division of any Person, except:...108
6.10. DISPOSAL OF SUBSIDIARY INTERESTS. Except for (i) Liens
created under any of the Credit Documents and (ii) any
sale of all (but not less than all) of the Company's
direct and indirect interests in the Capital Stock of
any Subsidiary in compliance with the provisions of
Section 6.9, no Credit Party shall, nor shall it permit
any of its Subsidiaries to, (a) directly or indirectly
sell, assign, pledge or otherwise encumber or dispose of
xxiv
any Capital Stock of any of its Subsidiaries, except to
qualify directors or allow for investments by foreign
nationals, in either case, if required by applicable
law; or (b) permit any of its Subsidiaries directly or
indirectly to sell, assign, pledge or otherwise encumber
or dispose of any Capital Stock of any of its
Subsidiaries, except to another Credit Party (subject to
the restrictions on such disposition otherwise imposed
hereunder), or to qualify directors if required by
applicable law.............................................109
6.11. SALES AND LEASE-BACKS. No Credit Party shall, nor shall
it permit any of its Subsidiaries to, directly or
indirectly, become or remain liable as lessee or as a
guarantor or other surety with respect to any lease of
any property (whether real, personal or mixed), whether
now owned or hereafter acquired, which such Credit Party
(a) has sold or transferred or is to sell or to transfer
to any other Person (other than Company or any of its
Guarantor Subsidiaries), or (b) intends to use for
substantially the same purpose as any other property
which has been or is to be sold or transferred by such
Credit Party to any Person (other than Company or any of
its Guarantor Subsidiaries) in connection with such
lease, provided, the foregoing restriction shall not
apply to (i) sales and lease-backs of equipment and
other personal property in the ordinary course of
business of Company and its Subsidiaries which a Credit
Party first acquired not more than 30 days prior to the
commencement of the applicable lease and (ii) sales and
lease-backs of real property with an aggregate fair
market value (as sold) not to exceed $1,000,000 at any
time outstanding, in each of cases (i) and (ii) to the
extent such transactions are otherwise in compliance
with this Agreement........................................109
6.12. TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES. No
Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, enter into or
permit to exist any transaction (including the purchase,
sale, lease or exchange of any property or the rendering
of any service) with any holder of 10% or more of any
class of Capital Stock of Holdings or any of its
Subsidiaries or with any Affiliate of Holdings, on terms
that are less favorable to it or such Subsidiary, as the
case may be, than those that might be obtained at the
time from a Person who is not such a holder or
Affiliate; provided, the foregoing restriction shall not
apply to (a) any transaction between Company and any
Wholly-Owned Guarantor Subsidiary; (b) reasonable and
customary fees paid to members of the board of directors
(or similar governing body) of Holdings and its
Subsidiaries; (c) compensation arrangements for officers
and other employees of Holdings and its Subsidiaries
entered into in the ordinary course of business of
Company and its Subsidiaries; (d) transactions in
connection with the Merger; (e) any Restricted Junior
xxv
Payment permitted to be paid pursuant to Section 6.5(c),
6.5(d), or 6.5(e)(i); (f) any issuance of Securities, or
other payments, awards or grants in cash, Securities or
otherwise pursuant to, or the funding of, employment
arrangements, stock options and stock ownership plans
(including the Employee Leverage Program) approved by
the board of directors of Holdings, in each case which
are otherwise consistent with this Agreement; (g) sales
or issuances of Capital Stock of Holdings to Affiliates
of Company approved by the board of directors of
Holdings; and (h) sales of inventory or other product
and arrangements in respect of administrative, corporate
overhead and insurance, legal and similar expenses among
Company and its Subsidiaries in the ordinary course of
business...................................................110
6.13. CONDUCT OF BUSINESS. From and after the Closing Date,
no Credit Party shall, nor shall it permit any of its
Subsidiaries to, engage in any business other than
(a) the businesses engaged in by such Credit Party on
the Closing Date and similar or related businesses and
(b) such other lines of business as may be consented to
by Requisite Lenders.......................................110
6.14. PERMITTED ACTIVITIES OF HOLDINGS. Holdings shall not
(a) incur, directly or indirectly, any Indebtedness
other than its Obligations under the Credit Documents or
guarantees in respect of Indebtedness of Company or any
of its Subsidiaries otherwise permitted under this
Agreement and Indebtedness permitted under
Section 6.1(m); (b) create or suffer to exist any Lien
upon any property or assets now owned or hereafter
acquired by it other than the Liens created under the
Collateral Documents to which it is a party or permitted
pursuant to Section 6.2; (c) engage in any business or
activity or own any assets other than (i) holding 100%
of the Capital Stock of Company and, through Company,
not less than 80% of the Capital Stock of each of the
Subsidiaries of Company; (ii) performing its obligations
and activities incidental thereto under the Credit
Documents, and to the extent not inconsistent therewith,
the Related Agreements and the Landis Merger Agreement,
as applicable; and (iii) making Restricted Junior
Payments and Investments to the extent permitted by this
Agreement; (d) consolidate with or merge with or into,
or convey, transfer or lease all or substantially all
its assets to, any Person; (e) sell or otherwise dispose
of any Capital Stock of Company; (f) create or acquire
any Subsidiary or make or own any Investment in any
Person other than Company and, through Company, the
Subsidiaries of Company; or (g) fail to hold itself out
to the public as a legal entity separate and distinct
from all other Persons.....................................110
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6.15. AMENDMENTS OR WAIVERS OF CERTAIN RELATED AGREEMENTS.
Except as set forth in Section 6.16, no Credit Party
shall nor shall it permit any of its Subsidiaries to,
agree to any material amendment, restatement, supplement
or other modification to, or waiver of, any of its
material rights under any Related Agreement or the
Landis Merger Agreement after the Effective Date without
in each case obtaining the prior written consent of
Requisite Lenders to such amendment, restatement,
supplement or other modification or waiver.................111
6.16. AMENDMENTS OR WAIVERS OF OR WITH RESPECT TO SUBORDINATED
INDEBTEDNESS. No Credit Party shall, nor shall it
permit any of its Subsidiaries to, amend or otherwise
change the terms of any Subordinated Indebtedness, or
make any payment consistent with an amendment thereof or
change thereto, (a) if the effect of such amendment or
change is to increase the interest rate on such
Subordinated Indebtedness, change (to earlier dates) any
dates upon which payments of principal or interest are
due thereon, change any event of default or condition to
an event of default with respect thereto (other than to
eliminate any such event of default or increase any
grace period related thereto), change the redemption,
prepayment or defeasance provisions thereof, change the
subordination provisions of such Senior Subordinated
Notes (or of any guaranty thereof), or (b) amend or
otherwise change the covenants or other provisions
contained in any Subordinated Indebtedness not described
in clause (a) of this Section 6.16 if the effect of such
amendment or change, together with all other amendments
or changes made, is to increase the obligations of the
obligor thereunder or to confer any additional material
rights on the holders of such Subordinated Indebtedness
(or a trustee or other representative on their behalf)
which would be adverse to any Credit Party or Lenders......111
6.17. FISCAL YEAR. No Credit Party shall, nor shall it permit
any of its Subsidiaries to, change its Fiscal Year.........111
6.18. DERIVATIVE TRANSACTIONS. No Credit Party shall enter
into any agreement with respect to any swap, forward,
future or derivative transaction or option or similar
agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt
instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or
pricing risk or value, other than (a) Financial Hedge
Agreements and (b) for the purposes of hedging the
xxvii
actual exposure of Company and its Subsidiaries to
fluctuations in the price of resin or other raw
materials used in the operations of Company and its
Subsidiaries and not for speculative purposes..............111
SECTION 7. GUARANTY...................................................112
7.1. GUARANTY OF THE OBLIGATIONS. Subject to the provisions
of Section 7.2, Guarantors jointly and severally hereby
irrevocably and unconditionally guarantee to
Administrative Agent for the ratable benefit of the
Beneficiaries the due and punctual payment in full of
all Obligations when the same shall become due, whether
at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including amounts
that would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy
Code, 11 U.S.C. {section} 362(a)) (collectively, the
"GUARANTEED OBLIGATIONS"). Without limiting the
obligations of Holdings under this Section 7, Holdings
shall become a co-obligor under the Notes, on a joint
and several basis with Company, and execute the Notes in
such capacity..............................................112
7.2. CONTRIBUTION BY GUARANTORS. All Guarantors desire to
allocate among themselves (collectively, the
"CONTRIBUTING GUARANTORS"), in a fair and equitable
manner, their obligations arising under this Guaranty.
Accordingly, in the event any payment or distribution is
made on any date by a Guarantor (a "FUNDING GUARANTOR")
under this Guaranty that exceeds its Fair Share as of
such date, such Funding Guarantor shall be entitled to a
contribution from each of the other Contributing
Guarantors in the amount of such other Contributing
Guarantor's Fair Share Shortfall as of such date, with
the result that all such contributions will cause each
Contributing Guarantor's Aggregate Payments to equal its
Fair Share as of such date. "FAIR SHARE" means, with
respect to a Contributing Guarantor as of any date of
determination, an amount equal to (a) the ratio of
(i) the Fair Share Contribution Amount with respect to
such Contributing Guarantor to (ii) the aggregate of the
Fair Share Contribution Amounts with respect to all
Contributing Guarantors multiplied by (b) the aggregate
amount paid or distributed on or before such date by all
Funding Guarantors under this Guaranty in respect of the
obligations Guaranteed. "FAIR SHARE SHORTFALL" means,
with respect to a Contributing Guarantor as of any date
of determination, the excess, if any, of the Fair Share
of such Contributing Guarantor over the Aggregate
xxviii
Payments of such Contributing Guarantor. "FAIR SHARE
CONTRIBUTION AMOUNT" means, with respect to a
Contributing Guarantor as of any date of determination,
the maximum aggregate amount of the obligations of such
Contributing Guarantor under this Guaranty that would
not render its obligations hereunder or thereunder
subject to avoidance as a fraudulent transfer or
conveyance under Section 548 of Title 11 of the United
States Code or any comparable applicable provisions of
state law; provided, solely for purposes of calculating
the "FAIR SHARE CONTRIBUTION AMOUNT" with respect to any
Contributing Guarantor for purposes of this Section 7.2,
any assets or liabilities of such Contributing Guarantor
arising by virtue of any rights to subrogation,
reimbursement or indemnification or any rights to or
obligations of contribution hereunder shall not be
considered as assets or liabilities of such Contributing
Guarantor. "AGGREGATE PAYMENTS" means, with respect to
a Contributing Guarantor as of any date of
determination, an amount equal to (1) the aggregate
amount of all payments and distributions made on or
before such date by such Contributing Guarantor in
respect of this Guaranty (including, without limitation,
in respect of this Section 7.2), minus (2) the aggregate
amount of all payments received on or before such date
by such Contributing Guarantor from the other
Contributing Guarantors as contributions under this
Section 7.2. The amounts payable as contributions
hereunder shall be determined as of the date on which
the related payment or distribution is made by the
applicable Funding Guarantor. The allocation among
Contributing Guarantors of their obligations as set
forth in this Section 7.2 shall not be construed in any
way to limit the liability of any Contributing Guarantor
hereunder. Each Guarantor is a third party beneficiary
to the contribution agreement set forth in this Section
7.2........................................................112
7.3. PAYMENT BY GUARANTORS. Subject to Section 7.2,
Guarantors hereby jointly and severally agree, in
furtherance of the foregoing and not in limitation of
any other right which any Beneficiary may have at law or
in equity against any Guarantor by virtue hereof, that
upon the failure of Company to pay any of the Guaranteed
Obligations when and as the same shall become due,
whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise
(including amounts that would become due but for the
operation of the automatic stay under Section 362(a) of
the Bankruptcy Code, 11 U.S.C. {section} 362(a)),
Guarantors will upon demand pay, or cause to be paid, in
Cash, in same day funds, to Administrative Agent for the
xxix
ratable benefit of Beneficiaries, an amount equal to the
sum of the unpaid principal amount of all Guaranteed
Obligations then due as aforesaid, accrued and unpaid
interest on such Guaranteed Obligations (including
interest which, but for Company's becoming the subject
of a case under the Bankruptcy Code, would have accrued
on such Guaranteed Obligations, whether or not a claim
is allowed against Company for such interest in the
related bankruptcy case) and all other Guaranteed
Obligations then owed to Beneficiaries as aforesaid........113
7.4. LIABILITY OF GUARANTORS ABSOLUTE. Each Guarantor agrees
that its obligations hereunder are irrevocable,
absolute, independent and unconditional and shall not be
affected by any circumstance which constitutes a legal
or equitable discharge of a guarantor or surety other
than payment in full of the Guaranteed Obligations or
the release of such Guarantor permitted by the Credit
Documents. In furtherance of the foregoing and without
limiting the generality thereof, each Guarantor agrees
as follows:................................................113
7.5. WAIVERS BY GUARANTORS. Each Guarantor hereby waives,
for the benefit of Beneficiaries: (a) any right to
require any Beneficiary, as a condition of payment or
performance by such Guarantor, to (i) proceed against
Company, any other guarantor (including any other
Guarantor) of the Guaranteed Obligations or any other
Person, (ii) proceed against or exhaust any security
held from Company, any such other guarantor or any other
Person, (iii) proceed against or have resort to any
balance of any Deposit Account or credit on the books of
any Beneficiary in favor of Company or any other Person,
or (iv) pursue any other remedy in the power of any
Beneficiary whatsoever; (b) any defense arising by
reason of the incapacity, lack of authority or any
disability or other defense of Company or any other
Guarantor including any defense based on or arising out
of the lack of validity or the unenforceability of the
Guaranteed Obligations or any agreement or instrument
relating thereto or by reason of the cessation of the
liability of Company or any other Guarantor from any
cause other than payment in full of the Guaranteed
Obligations; (c) any defense based upon any statute or
rule of law which provides that the obligation of a
surety must be neither larger in amount nor in other
respects more burdensome than that of the principal; (d)
any defense based upon any Beneficiary's errors or
omissions in the administration of the Guaranteed
Obligations, except behavior which amounts to bad faith;
(e) (i) any principles or provisions of law, statutory
xxx
or otherwise, which are or might be in conflict with the
terms hereof and any legal or equitable discharge of
such Guarantor's obligations hereunder, (ii) the benefit
of any statute of limitations affecting such Guarantor's
liability hereunder or the enforcement hereof, (iii) any
rights to set-offs, recoupments and counterclaims, and
(iv) promptness, diligence and any requirement that any
Beneficiary protect, secure, perfect or insure any
security interest or lien or any property subject
thereto; (f) notices, demands, presentments, protests,
notices of protest, notices of dishonor and notices of
any action or inaction, including acceptance hereof,
notices of default hereunder, the Financial Hedge
Agreements or any agreement or instrument related
thereto, notices of any renewal, extension or
modification of the Guaranteed Obligations or any
agreement related thereto, notices of any extension of
credit to Company and notices of any of the matters
referred to in Section 7.4 and any right to consent to
any thereof; and (g) any defenses or benefits that may
be derived from or afforded by law which limit the
liability of or exonerate guarantors or sureties, or
which may conflict with the terms hereof...................115
7.6. GUARANTORS' RIGHTS OF SUBROGATION, CONTRIBUTION, ETC.
Until the Guaranteed Obligations shall have been
indefeasibly paid in full and the Revolving Commitments
shall have terminated and all Letters of Credit shall
have expired or been cancelled, each Guarantor hereby
waives any claim, right or remedy, direct or indirect,
that such Guarantor now has or may hereafter have
against Company or any other Guarantor or any of its
assets in connection with this Guaranty or the
performance by such Guarantor of its obligations
hereunder, in each case whether such claim, right or
remedy arises in equity, under contract, by statute,
under common law or otherwise and including without
limitation (a) any right of subrogation, reimbursement
or indemnification that such Guarantor now has or may
hereafter have against Company with respect to the
Guaranteed Obligations, (b) any right to enforce, or to
participate in, any claim, right or remedy that any
Beneficiary now has or may hereafter have against
Company, and (c) any benefit of, and any right to
participate in, any collateral or security now or
hereafter held by any Beneficiary. In addition, until
the Guaranteed Obligations shall have been indefeasibly
paid in full and the Revolving Commitments shall have
terminated and all Letters of Credit shall have expired
or been cancelled, each Guarantor shall withhold
xxxi
exercise of any right of contribution such Guarantor may
have against any other guarantor (including any other
Guarantor) of the Guaranteed Obligations, including,
without limitation, any such right of contribution as
contemplated by Section 7.2. Each Guarantor further
agrees that, to the extent the waiver or agreement to
withhold the exercise of its rights of subrogation,
reimbursement, indemnification and contribution as set
forth herein is found by a court of competent
jurisdiction to be void or voidable for any reason, any
rights of subrogation, reimbursement or indemnification
such Guarantor may have against Company or against any
collateral or security, and any rights of contribution
such Guarantor may have against any such other
guarantor, shall be junior and subordinate to any rights
any Beneficiary may have against Company, to all right,
title and interest any Beneficiary may have in any such
collateral or security, and to any right any Beneficiary
may have against such other guarantor. If any amount
shall be paid to any Guarantor on account of any such
subrogation, reimbursement, indemnification or
contribution rights at any time when all Guaranteed
Obligations shall not have been finally and indefeasibly
paid in full, such amount shall be held in trust for
Administrative Agent on behalf of Beneficiaries and
shall forthwith be paid over to Administrative Agent for
the benefit of Beneficiaries to be credited and applied
against the Guaranteed Obligations, whether matured or
unmatured, in accordance with the terms hereof.............116
7.7. SUBORDINATION OF OTHER OBLIGATIONS. Any Indebtedness of
Company or any Guarantor now or hereafter held by any
Guarantor (the "OBLIGEE GUARANTOR") is hereby
subordinated in right of payment to the Guaranteed
Obligations, and any such indebtedness collected or
received by the Obligee Guarantor after an Event of
Default has occurred and is continuing shall be held in
trust for Administrative Agent on behalf of
Beneficiaries and shall forthwith be paid over to
Administrative Agent for the benefit of Beneficiaries to
be credited and applied against the Guaranteed
Obligations but without affecting, impairing or limiting
in any manner the liability of the Obligee Guarantor
under any other provision hereof...........................117
7.8. CONTINUING GUARANTY. This Guaranty is a continuing
guaranty and shall remain in effect until all of the
Guaranteed Obligations shall have been paid in full and
the Revolving Commitments shall have terminated and all
Letters of Credit shall have expired or been cancelled.
xxxii
Each Guarantor hereby irrevocably waives any right to
revoke this Guaranty as to future transactions giving
rise to any Guaranteed Obligations.........................117
7.9. AUTHORITY OF GUARANTORS OR COMPANY. It is not necessary
for any Beneficiary to inquire into the capacity or
powers of any Guarantor or Company or the officers,
directors or any agents acting or purporting to act on
behalf of any of them......................................117
7.10. FINANCIAL CONDITION OF COMPANY. Any Credit Extension
may be made to Company or continued from time to time,
and any Financial Hedge Agreements may be entered into
from time to time, in each case without notice to or
authorization from any Guarantor regardless of the
financial or other condition of Company at the time of
any such grant or continuation or at the time such
Financial Hedge Agreement is entered into, as the case
may be. No Beneficiary shall have any obligation to
disclose or discuss with any Guarantor its assessment,
or any Guarantor's assessment, of the financial
condition of Company. Each Guarantor has adequate means
to obtain information from Company on a continuing basis
concerning the financial condition of Company and its
ability to perform its obligations under the Credit
Documents and the Financial Hedge Agreements, and each
Guarantor assumes the responsibility for being and
keeping informed of the financial condition of Company
and of all circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations. Each
Guarantor hereby waives and relinquishes any duty on the
part of any Beneficiary to disclose any matter, fact or
thing relating to the business, operations or conditions
of Company now known or hereafter known by any
Beneficiary................................................117
7.11. BANKRUPTCY, ETC. (a) Without limiting any Guarantor's
ability to file a voluntary bankruptcy petition in
respect of itself, so long as any Guaranteed Obligations
remain outstanding, no Guarantor shall, without the
prior written consent of Administrative Agent acting
pursuant to the instructions of Requisite Lenders,
commence or join with any other Person in commencing any
bankruptcy, reorganization or insolvency case or
proceeding of or against Company or any other Guarantor.
The obligations of Guarantors hereunder shall not be
reduced, limited, impaired, discharged, deferred,
suspended or terminated by any case or proceeding,
voluntary or involuntary, involving the bankruptcy,
insolvency, receivership, reorganization, liquidation or
arrangement of Company or any other Guarantor or by any
defense which Company or any other Guarantor may have by
reason of the order, decree or decision of any court or
administrative body resulting from any such proceeding.....118
xxxiii
7.12. DISCHARGE OF GUARANTY UPON SALE OF GUARANTOR. If all of
the Capital Stock of any Guarantor or any of its
successors in interest hereunder shall be sold or
otherwise disposed of (including by merger or
consolidation) in a transaction consummated in
accordance with the terms and conditions hereof, the
Guaranty of such Guarantor or such successor in
interest, as the case may be, hereunder shall
automatically be discharged and released without any
further action by any Beneficiary or any other Person
effective as of the time of such disposition...............118
SECTION 8. EVENTS OF DEFAULT..........................................119
8.1. EVENTS OF DEFAULT. If any one or more of the following
conditions or events shall occur:..........................119
SECTION 9. AGENTS.....................................................122
9.1. APPOINTMENT OF AGENTS. JPMCB is hereby appointed
Syndication Agent hereunder, and each Lender hereby
authorizes Syndication Agent to act as its agent in
accordance with the terms hereof and the other Credit
Documents. GSCP is hereby appointed Administrative
Agent hereunder and under the other Credit Documents and
each Lender hereby authorizes Administrative Agent to
act as its agent in accordance with the terms hereof and
the other Credit Documents. Fleet National Bank is
hereby appointed Collateral Agent hereunder and under
the other Credit Documents and each Lender hereby
authorizes Collateral Agent to act as its agent in
accordance with the terms hereof and the other Credit
Documents. Each Agent hereby agrees to act upon the
express conditions contained herein and the other Credit
Documents, as applicable. The provisions of this
Section 9 are solely for the benefit of Agents and
Lenders and no Credit Party shall have any rights as a
third party beneficiary of any of the provisions
thereof. In performing its functions and duties
hereunder, each Agent shall act solely as an agent of
Lenders and does not assume and shall not be deemed to
have assumed any obligation towards or relationship of
agency or trust with or for Holdings or any of its
Subsidiaries. Syndication Agent, without consent of or
notice to any party hereto, may assign any and all of
its rights or obligations hereunder to any of its
Affiliates. As of the Closing Date, each of JPMCB, in
its capacity as Syndication Agent, and General Electric
Capital Corporation and The Royal Bank of Scotland, in
xxxiv
their capacities as Co-Documentation Agents, shall not
have any obligations but shall be entitled to all
benefits of this Section 9.................................122
9.2. POWERS AND DUTIES. Each Lender irrevocably authorizes
each Agent to take such action on such Lender's behalf
and to exercise such powers, rights and remedies
hereunder and under the other Credit Documents as are
specifically delegated or granted to such Agent by the
terms hereof and thereof, together with such powers,
rights and remedies as are reasonably incidental
thereto. Each Agent shall have only those duties and
responsibilities that are expressly specified herein and
the other Credit Documents. Each Agent may exercise
such powers, rights and remedies and perform such duties
by or through its agents or employees. No Agent shall
have, by reason hereof or any of the other Credit
Documents, a fiduciary relationship in respect of any
Lender; and nothing herein or any of the other Credit
Documents, expressed or implied, is intended to or shall
be so construed as to impose upon any Agent any
obligations in respect hereof or any of the other Credit
Documents except as expressly set forth herein or
therein....................................................123
9.3. GENERAL IMMUNITY...........................................123
9.4. AGENTS ENTITLED TO ACT AS LENDER. The agency hereby
created shall in no way impair or affect any of the
rights and powers of, or impose any duties or
obligations upon, any Agent in its individual capacity
as a Lender hereunder. With respect to its
participation in the Loans and the Letters of Credit,
each Agent shall have the same rights and powers
hereunder as any other Lender and may exercise the same
as if it were not performing the duties and functions
delegated to it hereunder, and the term "Lender" shall,
unless the context clearly otherwise indicates, include
each Agent in its individual capacity. Any Agent and
its Affiliates may accept deposits from, lend money to,
own securities of, and generally engage in any kind of
banking, trust, financial advisory or other business
with Holdings or any of its Affiliates as if it were not
performing the duties specified herein, and may accept
fees and other consideration from Company for services
in connection herewith and otherwise without having to
account for the same to Lenders............................124
9.5. LENDERS' REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENT....124
9.6. RIGHT TO INDEMNITY. Each Lender, in proportion to its
Pro Rata Share, severally agrees to indemnify each
Agent, to the extent that such Agent shall not have been
reimbursed by any Credit Party, for and against any and
all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses
xxxv
(including counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may
be imposed on, incurred by or asserted against such
Agent in exercising its powers, rights and remedies or
performing its duties hereunder or under the other
Credit Documents or otherwise in its capacity as such
Agent in any way relating to or arising out hereof or
the other Credit Documents; provided, no Lender 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. If any
indemnity furnished to any Agent for any purpose shall,
in the opinion of such Agent, be insufficient or become
impaired, such Agent may call for additional indemnity
and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished;
provided, in no event shall this sentence require any
Lender to indemnify any Agent against any liability,
obligation, loss, damage, penalty, action, judgment,
suit, cost, expense or disbursement in excess of such
Lender's Pro Rata Share thereof; and provided, further,
this sentence shall not be deemed to require any Lender
to indemnify any Agent against any liability,
obligation, loss, damage, penalty, action, judgment,
suit, cost, expense or disbursement described in the
proviso in the immediately preceding sentence..............125
9.7. SUB-AGENTS. Each Agent may perform any and all its
duties and exercise its rights and powers by or through
any one or more sub-agents appointed by such Agent.
Each Agent and any such sub-agent may perform any and
all its duties and exercise its rights and powers
through their respective Affiliates. The exculpatory
provisions of the preceding paragraphs shall apply to
any such sub-agent and to the Affiliates of each Agent
and any such sub-agent, and shall apply to their
respective activities in connection with the syndication
of the credit facilities provided for herein as well as
activities as such Agent...................................125
9.8. SUCCESSOR ADMINISTRATIVE AGENT, COLLATERAL AGENT AND
SWING LINE LENDER..........................................125
9.9. COLLATERAL DOCUMENTS AND GUARANTY..........................126
SECTION 10. MISCELLANEOUS..............................................127
10.1. NOTICES. Unless otherwise specifically provided herein,
any notice or other communication herein required or
permitted to be given to a Credit Party, Syndication
Agent, Collateral Agent, Administrative Agent, Swing
xxxvi
Line Lender or Issuing Bank shall be sent to such
Person's address as set forth on Appendix B or in the
other relevant Credit Document, and in the case of any
Lender, the address as indicated on Appendix B or
otherwise indicated to Administrative Agent in writing.
Each notice hereunder shall be in writing and may be
personally served, telexed or sent by telefacsimile or
United States mail or courier service and shall be
deemed to have been received when delivered in person or
by courier service and signed for against receipt
thereof, upon receipt of telefacsimile or telex, or
three Business Days after depositing it in the United
States mail with postage prepaid and properly addressed;
provided, no notice to any Agent, Swing Line Lender or
Issuing Bank shall be effective until received by such
Person.....................................................127
10.2. EXPENSES. Whether or not the transactions contemplated
hereby shall be consummated, Company agrees to pay
promptly (a) all the actual and reasonable costs and
expenses of preparation of the Credit Documents and any
consents, amendments, waivers or other modifications
thereto; (b) all the costs of furnishing all opinions by
counsel for Company and the other Credit Parties; (c)
the reasonable out-of-pocket fees, expenses and
disbursements of outside counsel to Agents in connection
with the negotiation, preparation, execution and
administration of the Credit Documents and any consents,
amendments, waivers or other modifications thereto and
any other documents or matters requested by Company; (d)
all the out-of-pocket actual costs and reasonable
expenses of creating and perfecting Liens in favor of
Collateral Agent, for the benefit of Lenders pursuant
hereto, including filing and recording fees, expenses
and taxes, stamp or documentary taxes, search fees,
title insurance premiums and reasonable fees, expenses
and disbursements of counsel to each Agent and of
counsel providing any opinions that any Agent or
Requisite Lenders may request in respect of the
Collateral or the Liens created pursuant to the
Collateral Documents; (e) all the out-of-pocket actual
costs and reasonable fees, expenses and disbursements of
any auditors, accountants, consultants or appraisers;
(f) all the out-of-pocket actual costs and reasonable
expenses (including the reasonable fees, expenses and
disbursements of any appraisers, consultants, advisors
and agents employed or retained by Collateral Agent and
its counsel) in connection with the custody or
preservation of any of the Collateral; (g) all other
out-of-pocket actual and reasonable costs and expenses
incurred by each Agent in connection with the
xxxvii
syndication of the Loans and Commitments and the
negotiation, preparation and execution of the Credit
Documents and any consents, amendments, waivers or other
modifications thereto and the transactions contemplated
thereby; and (h) after the occurrence of a Default or an
Event of Default, (i) all costs and expenses of
inspections and visits by any Agent or Lender pursuant
to Section 5.6 and (ii) all out-of-pocket costs and
expenses, including reasonable attorneys' fees and costs
of settlement, incurred by any Agent and Lenders in
enforcing any Obligations of or in collecting any
payments due from any Credit Party hereunder or under
the other Credit Documents by reason of such Default or
Event of Default (including in connection with the sale
of, collection from, or other realization upon any of
the Collateral or the enforcement of the Guaranty) or in
connection with any refinancing or restructuring of the
credit arrangements provided hereunder in the nature of
a "work-out" or pursuant to any insolvency or bankruptcy
cases or proceedings.......................................127
10.3. INDEMNITY..................................................128
10.4. SET-OFF. In addition to any rights now or hereafter
granted under applicable law and not by way of
limitation of any such rights, upon the occurrence of
any Event of Default each Lender is hereby authorized by
each Credit Party at any time or from time to time
subject to the consent of Administrative Agent (such
consent not to be unreasonably withheld or delayed),
without notice to any Credit Party or to any other
Person (other than Administrative Agent), any such
notice being hereby expressly waived, to set off and to
appropriate and to apply any and all deposits (general
or special, including Indebtedness evidenced by
certificates of deposit, whether matured or unmatured,
but not including trust accounts) and any other
Indebtedness at any time held or owing by such Lender to
or for the credit or the account of any Credit Party
against and on account of the obligations and
liabilities of any Credit Party to such Lender
hereunder, under the Letters of Credit and
participations therein and under the other Credit
Documents, including all claims of any nature or
description arising out of or connected herewith or
therewith, irrespective of whether or not (a) such
Lender shall have made any demand hereunder or (b) the
principal of or the interest on the Loans or any amounts
in respect of the Letters of Credit or any other amounts
due hereunder shall have become due and payable pursuant
to Section 2 and although such obligations and
liabilities, or any of them, may be contingent or
xxxviii
unmatured. Each Credit Party hereby further grants to
Administrative Agent and each Lender a security interest
in all Deposit Accounts maintained with Administrative
Agent or such Lender as security for the Obligations.......129
10.5. AMENDMENTS AND WAIVERS.....................................130
10.6. SUCCESSORS AND ASSIGNS; PARTICIPATIONS.....................132
10.7. INDEPENDENCE OF COVENANTS. All covenants hereunder
shall be given independent effect so that if a
particular action or condition is not permitted by any
of such covenants, the fact that it would be permitted
by an exception to, or would otherwise be within the
limitations of, another covenant shall not avoid the
occurrence of a Default or an Event of Default if such
action is taken or condition exists........................135
10.8. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
All representations, warranties and agreements made
herein shall survive the execution and delivery hereof
and the making of any Credit Extension. Notwithstanding
anything herein or implied by law to the contrary, the
agreements of each Credit Party set forth in Sections
2.19(c), 2.20, 2.21, 10.2, 10.3 and 10.4 and the
agreements of Lenders set forth in Sections 2.18 and 9.6
shall survive the payment of the Loans, the cancellation
or expiration of the Letters of Credit and the
reimbursement of any amounts drawn thereunder, and the
termination hereof.........................................135
10.9. NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on
the part of any Agent or any Lender in the exercise of
any power, right or privilege hereunder or under any
other Credit Document shall impair such power, right or
privilege or be construed to be a waiver of any default
or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude
other or further exercise thereof or of any other power,
right or privilege. The rights, powers and remedies
given to each Agent and each Lender hereby are
cumulative and shall be in addition to and independent
of all rights, powers and remedies existing by virtue of
any statute or rule of law or in any of the other Credit
Documents or any of the Financial Hedge Agreements. Any
forbearance or failure to exercise, and any delay in
exercising, any right, power or remedy hereunder shall
not impair any such right, power or remedy or be
construed to be a waiver thereof, nor shall it preclude
the further exercise of any such right, power or remedy....135
10.10.MARSHALLING; PAYMENTS SET ASIDE. Neither any Agent nor
any Lender shall be under any obligation to marshal any
assets in favor of any Credit Party or any other Person
or against or in payment of any or all of the
xxxix
Obligations. To the extent that any Credit Party makes
a payment or payments to Administrative Agent or Lenders
(or to Administrative Agent, on behalf of Lenders), or
Administrative Agent or Lenders enforce any security
interests or exercise their rights of setoff, and such
payment or payments or the proceeds of such enforcement
or setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential,
set aside and/or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law,
any other state or federal law, common law or any
equitable cause, then, to the extent of such recovery,
the obligation or part thereof originally intended to be
satisfied, and all Liens, rights and remedies therefor
or related thereto, shall be revived and continued in
full force and effect as if such payment or payments had
not been made or such enforcement or setoff had not
occurred...................................................136
10.11.SEVERABILITY. In case any provision in or obligation
hereunder or any Note shall be invalid, illegal or
unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions
or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected
or impaired thereby........................................136
10.12.OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS'
RIGHTS. The obligations of Lenders hereunder are
several and no Lender shall be responsible for the
obligations or Commitment of any other Lender hereunder.
Nothing contained herein or in any other Credit
Document, and no action taken by Lenders pursuant hereto
or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any
other kind of entity. The amounts payable at any time
hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to
protect and enforce its rights arising out hereof and it
shall not be necessary for any other Lender to be joined
as an additional party in any proceeding for such
purpose....................................................136
10.13.HEADINGS. Section headings herein are included herein
for convenience of reference only and shall not
constitute a part hereof for any other purpose or be
given any substantive effect...............................136
10.14.APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED
BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO CONFLICT OF LAWS PRINCIPLES THEREOF.....................136
xl
10.15.CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS
BROUGHT AGAINST ANY PARTY HERETO ARISING OUT OF OR
RELATING HERETO OR ANY OTHER CREDIT DOCUMENT, OR ANY OF
THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND
CITY OF NEW YORK. BY EXECUTING AND DELIVERING THIS
AGREEMENT, EACH PARTY HERETO, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (a) ACCEPTS
GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS; (b) WAIVES ANY
DEFENSE OF FORUM NON CONVENIENS; (c) AGREES THAT SERVICE
OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT
MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS
ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.1; (d)
AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE
APPLICABLE CREDIT PARTY IN ANY SUCH PROCEEDING IN ANY
SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT; AND (e) AGREES AGENTS
AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS
AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER
JURISDICTION...............................................136
10.16.WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
HEREUNDER OR UNDER ANY OF THE OTHER CREDIT DOCUMENTS OR
ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER
OF THIS LOAN TRANSACTION OR THE LENDER/COMPANY
RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF
xli
THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY
AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A
MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS
WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH
WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED
FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND
REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS
LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY
WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH
LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT
IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING
(OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY
REFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT
DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT............................137
10.17.CONFIDENTIALITY. Each Lender shall hold all non-public
information regarding Holdings and Company and their
business identified as such by Company and obtained by
such Lender pursuant to the requirements hereof in
accordance with such Lender's customary procedures for
handling confidential information of such nature, it
being understood and agreed by Holdings and Company
that, in any event, a Lender may make (i) disclosures of
such information to Affiliates of such Lender and to
their agents and advisors (and to other persons
authorized by a Lender or Agent to organize, present or
xlii
disseminate such information in connection with
disclosures otherwise made in accordance with this
Section 10.17), (ii) disclosures of such information
reasonably required by any bona fide or potential
assignee, transferee or participant in connection with
the contemplated assignment, transfer or participation
by such Lender of any Loans or any participations
therein or by any direct or indirect contractual
counterparties (or the professional advisors thereto) in
Financial Hedge Agreements (provided, such assignees,
transferees, participants, counterparties and advisors
are advised of and agree to be bound by the provisions
of this Section 10.17), (iii) disclosure to any rating
agency when required by it, provided, prior to any
disclosure, such rating agency shall undertake in
writing to preserve the confidentiality of any
confidential information relating to the Credit Parties
received by it from any of the Agents or any Lender, and
(iv) required or requested by any governmental agency
or representative thereof or by the NAIC or pursuant to
legal or judicial process; provided, unless specifically
prohibited by applicable law or court order, each Lender
shall make reasonable efforts to notify Company of any
request by any governmental agency or representative
thereof (other than any such request in connection with
any examination of the financial condition or other
routine examination of such Lender by such governmental
agency) for disclosure of any such non-public
information prior to disclosure of such information.
Notwithstanding anything to the contrary set forth
herein, each party (and each of their respective
employees, representatives or other agents) may disclose
to any and all persons, without limitations of any kind,
the tax treatment and tax structure of the transactions
contemplated by this Agreement and all materials of any
kind (including without limitation, opinions and other
tax analyses) that are provided to any such party
relating to such tax treatment and tax structure.
However, any information relating to the tax treatment
or tax structure shall remain subject to the
confidentiality provisions hereof (and the foregoing
sentence shall not apply) to the extent reasonably
necessary to enable the parties hereto, their respective
Affiliates, and their and their respective Affiliates'
directors and employees to comply with applicable
securities laws. For this purpose, "tax structure"
means any facts relevant to the federal income tax
treatment of the transactions contemplated by this
Agreement but does not include information relating to
the identity of any of the parties hereto or any of
their respective Affiliates................................138
xliii
10.18.USURY SAVINGS CLAUSE. Notwithstanding any other
provision herein, the aggregate interest rate charged
with respect to any of the Obligations, including all
charges or fees in connection therewith deemed in the
nature of interest under applicable law shall not exceed
the Highest Lawful Rate. If the rate of interest
(determined without regard to the preceding sentence)
under this Agreement at any time exceeds the Highest
Lawful Rate, the outstanding amount of the Loans made
hereunder shall bear interest at the Highest Lawful Rate
until the total amount of interest due hereunder equals
the amount of interest which would have been due
hereunder if the stated rates of interest set forth in
this Agreement had at all times been in effect. In
addition, if when the Loans made hereunder are repaid in
full the total interest due hereunder (taking into
account the increase provided for above) is less than
the total amount of interest which would have been due
hereunder if the stated rates of interest set forth in
this Agreement had at all times been in effect, then to
the extent permitted by law, Company shall pay to
Administrative Agent an amount equal to the difference
between the amount of interest paid and the amount of
interest which would have been paid if the Highest
Lawful Rate had at all times been in effect.
Notwithstanding the foregoing, it is the intention of
Lenders and Company to conform strictly to any
applicable usury laws. Accordingly, if any Lender
contracts for, charges, or receives any consideration
which constitutes interest in excess of the Highest
Lawful Rate, then any such excess shall be cancelled
automatically and, if previously paid, shall at such
Lender's option be applied to the outstanding amount of
the Loans made hereunder or be refunded to Company.........139
10.19.COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which when so executed
and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the
same instrument............................................136
-xliv-
NY12534:136764.6
NY12534:136764.8
NY12534:136764.9
APPENDICES:
A-1Term Loan Commitments
A-2[Intentionally Omitted]
A-3Revolving Commitments
B Notice Addresses
1.1 Redemption of Certain Existing Notes
3.1(l) Closing Date Mortgaged Properties
4.1 Jurisdictions of Organization and Qualification
4.2 Capital Stock and Ownership
4.4 Guarantors
4.13 Real Estate Assets
4.14 Environmental Matters
6.1(g) Surviving Indebtedness
6.2(l) Certain Liens
6.7 Existing Investments
6.8(d)(iv)Historical Quarters
EXHIBITS:
A-1 Funding Notice
A-2 Conversion/Continuation Notice
A-3 Issuance Notice
A-4 Incremental Term Loan Notice
B-1 Term Loan Note
B-2 Incremental Term Loan Note
B-3 Revolving Loan Note
B-4 Swing Line Note
C Compliance Certificate
D Opinions of Counsel
E Assignment Agreement
F Certificate Re Non-bank Status
G-1 Closing Date Certificate
G-2 Solvency Certificate
H Counterpart Agreement
I Pledge and Security Agreement
J Mortgage
K Landlord's Consent, Estoppel Certificate and Amendment
L Intercompany Subordination Agreement
M Joinder Agreement
N New Lender Supplement
-xlv-
NY12534:136764.6
NY12534:136764.8
NY12534:136764.9
SECOND AMENDED AND RESTATED
CREDIT AND GUARANTY AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT,
dated as of August [ ], 2004, is entered into by and among BERRY PLASTICS
CORPORATION, a Delaware corporation ("COMPANY"), BPC HOLDING CORPORATION, a
Delaware corporation ("HOLDINGS"), CERTAIN SUBSIDIARIES OF COMPANY, as
Guarantors, the Lenders party hereto from time to time, GOLDMAN SACHS CREDIT
PARTNERS L.P. ("GSCP"), as Administrative Agent, (together with its permitted
successors in such capacity, "ADMINISTRATIVE AGENT"), JPMORGAN CHASE BANK
("JPMCB"), as Syndication Agent (together with its permitted successors and
assigns in such capacity, "SYNDICATION AGENT"), FLEET NATIONAL BANK, as
Collateral Agent (together with its permitted successors in such capacity,
"COLLATERAL AGENT"), Issuing Bank (together with its permitted successors in
such capacity, "ISSUING BANK") and Swing Line Lender (together with its
permitted successors in such capacity, "SWING LINE LENDER") and THE ROYAL BANK
OF SCOTLAND and GENERAL ELECTRIC CAPITAL CORPORATION, as Co-Documentation
Agents (together with their permitted successors and assigns in such capacity,
"CO-DOCUMENTATION AGENTS").
RECITALS:
WHEREAS, capitalized terms used in these Recitals shall have the
respective meanings set forth for such terms in Section 1.1 hereof;
WHEREAS, Company is the borrower under the Amended and Restated
Credit and Guaranty Agreement, dated as of November 10, 2003, by and among
Company, Holdings, certain Subsidiaries of Company as Guarantors, the Agents
and various Lenders (the "EXISTING AGREEMENT");
WHEREAS, the Term Loan Lenders have agreed to extend $365,525,000
of Term Loans to Company for funding on the Effective Date, the proceeds of
which will be used to prepay outstanding Term Loans and the Delayed Draw Loan
(as defined in the Existing Agreement) on the Effective Date pursuant to
Section 2.14 of the Existing Agreement;
WHEREAS, Company has secured all of its Obligations by granting to
Collateral Agent, for the benefit of Secured Parties, a First Priority Lien on
substantially all of its assets, including a pledge of all of the Capital Stock
of each of its Domestic Subsidiaries (except for any stock held by, or pledged
for the benefit of third parties), 65% of all the Capital Stock of each of its
Foreign Subsidiaries that is directly owned by Company or any Domestic
Subsidiary and all Indebtedness owed to Company by any Subsidiary;
1
WHEREAS, Guarantors have guaranteed the Obligations of Company
hereunder and secured their respective Obligations by granting to Collateral
Agent, for the benefit of Secured Parties, a First Priority Lien on
substantially all of their respective assets, including a pledge of all of the
Capital Stock of each of their respective Domestic Subsidiaries (except for any
stock held by, or pledged for the benefit of third parties), and 65% of all the
Capital Stock of each of their respective Foreign Subsidiaries that is directly
owned by Company or any Domestic Subsidiary, and all indebtedness for borrowed
money owed to any Guarantor by Company or any other Guarantors;
WHEREAS, Company has requested, and Requisite Lenders have agreed,
to enter into this Agreement, to amend and restate the Existing Agreement in
accordance with Section 10.5 thereof, effective as of the Effective Date upon
satisfaction or waiver of the conditions precedent set forth in Section 3.3.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. DEFINITIONS AND INTERPRETATION
1.1. DEFINITIONS. The following terms used herein, including in the
preamble, recitals, exhibits and schedules hereto, shall have the following
meanings:
"2004 NOTES" means Company's 12-1/4% Senior Subordinated Notes due
2004 and Company's 12-1/4% Series B Senior Subordinated Notes due 2004.
"2006 NOTES" means Holdings' 12-1/2% Senior Secured Notes due
2006.
"ADDITIONAL ISSUING BANK" as defined in Section 2.4(i).
"ADDITIONAL NET SALES" means, for any Fiscal Year, the sum of
(a) for each Person directly or indirectly acquired by the Company in a
Permitted Acquisition during such Fiscal Year, the product of (i) 7.5%
multiplied by (ii) the historical net sales of such Person during its most
recent four full Fiscal Quarters immediately preceding the Permitted
Acquisition for which quarterly financial statements have been delivered to the
Lenders pursuant to Section 5.1(b), multiplied by (iii) a fraction, the
denominator of which is 365 and the numerator of which is the number of days
from (but excluding) the date of such Permitted Acquisition to (and including)
the last day of such Fiscal Year, and (b) for each Person directly or
indirectly acquired by the Company in a Permitted Acquisition during any
prior Fiscal Year, the product of (i) 7.5% multiplied by (ii) the historical
net sales of such Person during its most recent four full Fiscal Quarters
immediately preceding the Permitted Acquisition for which quarterly financial
statements have been delivered to the Lenders pursuant to Section 5.1(b).
2
"ADDITIONAL SPONSOR EQUITY" means Cash proceeds received by
Holdings from the issuance of its Capital Stock to, or other capital
contributions by one or more Sponsors for their own account on any day after
the Closing Date, in an aggregate amount not to exceed $100,000,000 during the
term of this Agreement.
"ADJUSTED EURODOLLAR RATE" means, for any Interest Rate
Determination Date with respect to an Interest Period for a Eurodollar Rate
Loan, the rate per annum obtained by dividing (and rounding upward to the next
whole multiple of 1/16 of 1%) (i) (a) the rate per annum (rounded to the
nearest 1/100 of 1%) equal to the rate determined by Administrative Agent to be
the offered rate which appears on the page of the Dow Jones Telerate Service
which displays an average British Bankers Association Interest Settlement Rate
(such page currently being page number 3740 or 3750, as applicable) for
deposits (for delivery on the first day of such period) with a term equivalent
to such period in Dollars, determined as of approximately 11:00 a.m. (London,
England time) on such Interest Rate Determination Date, or (b) in the event the
rate referenced in the preceding clause (a) does not appear on such page or
service or if such page or service shall cease to be available, the rate per
annum (rounded to the nearest 1/100 of 1%) equal to the rate determined by
Administrative Agent to be the offered rate on such other page or other service
which displays an average British Bankers Association Interest Settlement Rate
for deposits (for delivery on the first day of such period) with a term
equivalent to such period in Dollars, determined as of approximately 11:00 a.m.
(London, England time) on such Interest Rate Determination Date, or (c) in the
event the rates referenced in the preceding clauses (a) and (b) are not
available, the rate per annum (rounded to the nearest 1/100 of 1%) equal to the
offered quotation rate to first class banks in the London interbank market by
JPMCB for deposits (for delivery on the first day of the relevant period) in
Dollars of amounts in same day funds comparable to the principal amount of the
applicable Loan of Administrative Agent, in its capacity as a Lender, for which
the Adjusted Eurodollar Rate is then being determined with maturities
comparable to such period as of approximately 11:00 a.m. (London, England time)
on such Interest Rate Determination Date, by (ii) an amount equal to (a) one
minus (b) the Applicable Reserve Requirement.
"ADMINISTRATIVE AGENT" as defined in the preamble hereto.
"ADVERSE PROCEEDING" means any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration (whether or not purportedly on behalf of Holdings or any of its
Subsidiaries) at law or in equity, or before or by any Governmental Authority,
domestic or foreign (including any Environmental Claims), whether pending or,
to the knowledge of Holdings or any of its Subsidiaries, threatened against or
affecting Holdings or any of its Subsidiaries or any property of Holdings or
any of its Subsidiaries.
"AFFECTED LENDER" as defined in Section 2.19(b).
"AFFECTED LOANS" as defined in Section 2.19(b).
3
"AFFILIATE" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control
with, that Person, provided no Person shall be an Affiliate of Holdings,
Company or any of its Subsidiaries solely because such Person controls, or is
under common control with, one or more of the entities constituting the
Sponsors. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under
common control with"), as applied to any Person, means the possession, directly
or indirectly, of the power (i) to vote 10% or more of the Securities having
ordinary voting power for the election of directors of such Person or (ii) to
direct or cause the direction of the management and policies of that Person,
whether through the ownership of voting securities or by contract or otherwise.
"AGENT" means each of Syndication Agent, Administrative Agent,
Collateral Agent and Co-Documentation Agents and, solely for the purposes of
Sections 9.3, 9.6, 10.2 and 10.3, the Issuing Bank and Swing Line Lender.
"AGGREGATE AMOUNTS DUE" as defined in Section 2.18.
"AGGREGATE PAYMENTS" as defined in Section 7.2.
"AGREEMENT" means this Second Amended and Restated Credit and
Guaranty Agreement, dated as of August [ ], 2004, as it may be amended,
supplemented or otherwise modified from time to time.
"APPLICABLE MARGIN" and "APPLICABLE REVOLVING COMMITMENT FEE
PERCENTAGE" mean (i) with respect to Revolving Loans that are Eurodollar Rate
Loans and the Applicable Revolving Commitment Fee Percentage, a percentage, per
annum, determined by reference to the Leverage Ratio in effect from time to
time as set forth below:
LEVERAGE APPLICABLE MARGIN APPLICABLE REVOLVING COMMITMENT
RATIO FOR REVOLVING LOANS FEE PERCENTAGE
(greater than or equal to) 4.50 : 1.00 2.75% 0.50 %
(less than) 4.50 : 1.00 2.50% 0.50 %
(greater than or equal to) 4.00 : 1.00
(less than) 4.00 : 1.00 2.25% 0.375 %
(greater than or equal to) 3.50 : 1.00
(less than) 3.50 : 1.00 2.00% 0.375 %
4
(ii) with respect to Swing Line Loans and Revolving Loans that are Base Rate
Loans, an amount equal to (a) the Applicable Margin for Eurodollar Rate Loans
as set forth in clause (i) above, as applicable, minus (b) 1.00% per annum;
(iii) with respect to Term Loans that are (a) Base Rate Loans, an amount equal
to (I) 1.00%, if the Leverage Ratio is equal to or less than 4.50:1.00 or (II)
1.25%, if the Leverage Ratio is greater than 4.50:1.00 or (b) Eurodollar Rate
Loans, an amount equal to (I) 2.00%, if the Leverage Ratio is equal to or less
than 4.50:1.00 or (II) 2.25%, if the Leverage Ratio is greater than 4.50:1.00,
in each case, with the applicable Leverage Ratio calculated in accordance with
Section 6.8(d)(ii); and (iv) with respect to Incremental Term Loans, such per
annum rates as shall be agreed to by Company and the applicable Incremental
Term Loan Lenders as shown in the applicable Incremental Term Loan Notice. No
change in the Applicable Margin or the Applicable Revolving Commitment Fee
Percentage shall be effective until three Business Days after the date on which
Administrative Agent shall have received the applicable financial statements
and a Compliance Certificate pursuant to Section 5.1(d) calculating the
Leverage Ratio. At any time Company has not submitted to Administrative Agent
the applicable information as and when required under Section , the
Applicable Margin and the Applicable Revolving Commitment Fee Percentage
shall be determined as if the Leverage Ratio were in excess of 4.50:1.00.
Within one Business Day of receipt of the applicable information under
Section 5.1(d), Administrative Agent shall give each Lender telefacsimile or
telephonic notice (confirmed in writing) of the Applicable Margin and the
Applicable Revolving Commitment Fee Percentage in effect from such date.
"APPLICABLE RESERVE REQUIREMENT" means, at any time, for any
Eurodollar Rate Loan, the maximum rate, expressed as a decimal, at which
reserves (including, without limitation, any basic marginal, special,
supplemental, emergency or other reserves) are required to be maintained for
eurocurrency funding (currently referred to as "Eurocurrency liabilities" in
Regulation D of the Board of Governors of the Federal Reserve System) under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System or other applicable banking regulator. Without limiting the
effect of the foregoing, the Applicable Reserve Requirement shall reflect any
other reserves required to be maintained by such member banks with respect to
(i) any category of liabilities consisting of deposits by reference to which
the applicable Adjusted Eurodollar Rate is to be determined, or (ii) any
category of extensions of credit or other assets consisting of Eurodollar Rate
Loans. A Eurodollar Rate Loan shall be deemed to constitute Eurocurrency
liabilities and as such shall be deemed subject to reserve requirements without
benefits of credit for proration, exceptions or offsets that may be available
from time to time to the applicable Lender. The rate of interest on Eurodollar
Rate Loans shall be adjusted automatically on and as of the effective date of
any change in the Applicable Reserve Requirement.
"ASSET SALE" means a sale, lease or sub-lease (as lessor or
sublessor), assignment, conveyance, transfer or other disposition to, or any
exchange of property with, any Person (other than Holdings, Company or any
Guarantor Subsidiary), in one transaction or a series of transactions, of all
or any part of Holdings' or any of its Subsidiaries' businesses, assets or
properties of any kind, whether real, personal, or mixed and whether tangible
5
or intangible, whether now owned or hereafter acquired, including, without
limitation, the Capital Stock of any of Holdings' Subsidiaries, other than
(i) inventory sold or leased in the ordinary course of business of Company and
its Subsidiaries (excluding any such sales by operations or divisions
discontinued or to be discontinued), (ii) Cash Equivalents sold for Cash or
Cash Equivalents in the ordinary course of business of Company and its
Subsidiaries, (iii) the sale or discount without recourse of accounts
receivable only in connection with the compromise thereof or the assignment of
past-due accounts receivable for collection, (iv) sale and lease-back
transactions permitted under Section 6.11 , and (v) sales of other assets for
aggregate consideration of less than $2,000,000 with respect to any transaction
or series of related transactions, provided, all sales pursuant to clause (v)
during any Fiscal Year do not exceed $5,000,000 in the aggregate.
"ASSIGNMENT AGREEMENT" means an Assignment and Assumption
Agreement in the form of Exhibit E, with such amendments or modifications as
may be approved by Administrative Agent.
"AUTHORIZED OFFICER" means, as applied to any Person, any
individual holding the position of chairman of the board (if an officer), chief
executive officer, president or one of its vice presidents (or the equivalent
thereof), and such Person's chief financial officer, controller or treasurer.
"BANKRUPTCY CODE" means Title 11 of the United States Code
entitled "Bankruptcy," as now and hereafter in effect, or any successor
statute.
"BASE RATE" means, for any day, a rate per annum equal to the
greater of (i) the Prime Rate in effect on such day and (ii) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective on the effective day of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"BASE RATE LOAN" means a Loan bearing interest at a rate
determined by reference to the Base Rate.
"BENEFICIARY" means each Agent, Issuing Bank, Lender and Lender
Counterparty.
"BUDGETED AMOUNT" as defined in Section 6.8(c).
"BUSINESS DAY" means any day excluding (i) Saturday, Sunday and
any day which is a legal holiday under the laws of the State of New York or is
a day on which banking institutions located in such state are authorized or
required by law or other governmental action to close and (ii) solely with
respect to all notices, determinations, fundings and payments in connection
with the Adjusted Eurodollar Rate or any Eurodollar Rate Loans, also any day
which is not a day for trading by and between banks in Dollar deposits in the
London interbank market.
6
"CAPITAL LEASE" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"CAPITAL STOCK" means any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than
a corporation), including, without limitation, partnership interests and
membership interests, and any and all warrants, rights or options to purchase
or other arrangements or rights to acquire any of the foregoing.
"CASH" means money, currency or a credit balance in any demand or
Deposit Account.
"CASH EQUIVALENTS" means, as at any date of determination,
(i) marketable securities (A) issued or directly and unconditionally guaranteed
as to interest and principal by the United States of America or (B) issued by
any agency of the United States of America the obligations of which are backed
by the full faith and credit of the United States of America, in each case
maturing within one year after such date; (ii) marketable direct obligations
issued by any state of the United States of America or the District of Columbia
or any political subdivision or instrumentality thereof, in each case maturing
within one year after such date and having, at the time of the acquisition
thereof, a rating of at least A-1 from S&P or at least P-1 from Moody's;
(iii) commercial paper maturing no more than one year from the date of creation
thereof and having, at the time of the acquisition thereof, a rating of at
least A-1 from S&P or at least P-1 from Moody's; (iv) certificates of deposit,
time deposits, eurodollar time deposits, overnight bank deposits or bankers'
acceptances maturing within one year after such date and issued or accepted by,
and money market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of America or
any state thereof or the District of Columbia that has combined capital and
surplus and undivided profits of not less than $500,000,000; (v) fully
collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (i) or (ii) above and entered into with any
commercial bank satisfying the requirements of clause (iv) above; (vi) solely
in respect of the ordinary course cash management activities of the Foreign
Subsidiaries, equivalents of the investments described in clauses (i) and (ii)
above to the extent guaranteed by the United Kingdom or the European Union and
equivalents of the investments described in clause (iv) above issued, accepted
or offered by (a) the local office of any commercial bank meeting the
requirements of clause (iv) above in the jurisdiction of organization of the
applicable Foreign Subsidiary or (b) the local office of any commercial bank
organized under the laws of the jurisdiction of organization of the applicable
Foreign Subsidiary which commercial bank (1) has combined capital and surplus
and undivided profits of not less than $1,000,000,000 and (2) a long-term
rating for Dollar-denominated obligations of at least A-1 from S&P or the
equivalent rating from Moody's; and (vii) shares of any money market mutual
fund that (a) complies with the criteria set forth in Securities and Exchange
Commission Rule 2a-7 under the Investment Company Act of 1940, (b) has net
assets of not less than $500,000,000, and (c) has the highest rating obtainable
from either S&P or Moody's.
7
"CERTIFICATE RE NON-BANK STATUS" means a certificate substantially
in the form of Exhibit F.
"CHANGE OF CONTROL" means, at any time, (i) at least 51% on a
fully-diluted basis of the outstanding voting power of the Voting Stock of
Holdings shall cease to be beneficially owned and controlled by one or more of
the Sponsors; (ii) any person or "group" (within the meaning of Rules 13d-3 and
13d-5 under the Exchange Act) other than one or more of the Sponsors (A) shall
beneficially own a percentage of the economic interests in the Voting Stock of
Holdings on a fully-diluted basis that is greater than the percentage of the
economic interests in the Voting Stock of Holdings on a fully-diluted basis
then held by the Sponsors, taken together, or (B) shall have obtained the power
(whether or not exercised) to elect a majority of the members of the board of
directors (or similar governing body) of Holdings; (iii) Holdings shall cease
to beneficially own and control 100% on a fully-diluted basis of the
outstanding economic and voting interest in the Capital Stock of Company;
(iv) the majority of the seats (other than vacant seats) on the board of
directors (or similar governing body) of Holdings cease to be occupied by
Persons who either (a) were members of the board of directors of the Holdings
on the Closing Date or (b) were either (x) nominated for election by the board
of directors of Holdings, a majority of whom were directors on the Closing Date
or whose election or nomination for election was previously approved by a
majority of such directors or (y) designated or appointed by Sponsor; or
(v) any "change of control" or similar event under the Senior Subordinated Note
Documents shall occur.
"CLASS" means (i) with respect to Lenders, each of the following
classes of Lenders: (a) Lenders having Term Loan Exposure, (b) Lenders having
Revolving Exposure (including Swing Line Lender), and (c) Lenders having
Incremental Term Loan Exposure, (ii) with respect to Loans, each of the
following classes of Loans: (a) the Term Loan, (b) Revolving Loans and (c)
Incremental Term Loans, and (iii) with respect to Commitments, each of the
following classes of Commitments: (a) Term Loan Commitments and (b) Revolving
Commitments.
"CLOSING DATE" means July 22, 2002, the date on which the Term
Loans (as defined in the Original Agreement) were made under the Original
Agreement.
"CLOSING DATE CERTIFICATE" means a Closing Date Certificate
substantially in the form of Exhibit G-1.
"CLOSING DATE MORTGAGED PROPERTY" as defined in Section 3.1(1).
"CO-DOCUMENTATION AGENTS" as defined in the preamble hereto.
"COLLATERAL" means, collectively, all of the real, personal and
mixed property (including Capital Stock) whether now owned or hereafter
acquired in which Liens are purported to be granted pursuant to the Collateral
Documents as security for the Obligations.
8
"COLLATERAL AGENT" as defined in the preamble hereto.
"COLLATERAL DOCUMENTS" means the Pledge and Security Agreement,
the Mortgages, the Landlord's Consent, Estoppel Certificate and Amendments, if
any, and all other instruments, documents and agreements delivered by any
Credit Party pursuant to this Agreement or any of the other Credit Documents in
order to grant to Collateral Agent, for the benefit of Lenders, a Lien on any
real, personal or mixed property of that Credit Party as security for the
Obligations.
"COLLATERAL QUESTIONNAIRE" means a certificate in form
satisfactory to the Collateral Agent that provides information with respect to
the personal or mixed property of each Credit Party.
"COMPANY" as defined in the preamble hereto.
"COMMITMENT" means any Revolving Commitment or Term Loan
Commitment.
"COMMITMENT PERIOD" means the Revolving Commitment Period.
"COMMITMENT TERMINATION DATE" means the Revolving Commitment
Termination Date.
"COMPLIANCE CERTIFICATE" means a Compliance Certificate
substantially in the form of Exhibit C.
"CONSOLIDATED ADJUSTED EBITDA" means, for any period, an amount
determined for Holdings and its Subsidiaries on a consolidated basis equal to
the sum, without duplication, of the amounts for such period of
(i) Consolidated Net Income, plus (ii) to the extent reducing Consolidated Net
Income, (a) Consolidated Interest Expense, (b) provisions for taxes based on
income, (c) total depreciation expense, (d) total amortization expense,
(e) other non-Cash items (excluding any such non-Cash item to the extent that
it represents an accrual or reserve for potential Cash items in any future
period or amortization of a prepaid Cash item that was paid in a prior period)
and (f) Transaction Costs and Landis Acquisition Transaction Costs payable in
Cash by Holdings and Company with respect to such period, minus (iii) non-Cash
items increasing Consolidated Net Income for such period (excluding any such
non-Cash item to the extent it represents the reversal of an accrual or reserve
for potential Cash item in any prior period).
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the
aggregate of all expenditures of Holdings and its Subsidiaries during such
period determined on a consolidated basis that, in accordance with GAAP, are
included in "purchase of property and equipment" or similar items reflected in
9
the consolidated statement of cash flows of Holdings and its Subsidiaries,
other than any amount of such expenditures that constitute Permitted
Acquisition Expenses or the permitted application of Net Insurance/Condemnation
Proceeds in accordance with Section 2.15(b).
"CONSOLIDATED CASH INTEREST EXPENSE" means, for any period,
Consolidated Interest Expense for such period, excluding any amount not payable
in Cash.
"CONSOLIDATED CURRENT ASSETS" means, as at any date of
determination, the total assets of Holdings and its Subsidiaries on a
consolidated basis that may properly be classified as current assets in
conformity with GAAP, excluding Cash and Cash Equivalents.
"CONSOLIDATED CURRENT LIABILITIES" means, as at any date of
determination, the total liabilities of Holdings and its Subsidiaries on a
consolidated basis that may properly be classified as current liabilities in
conformity with GAAP, excluding the current portion of long term debt.
"CONSOLIDATED EXCESS CASH FLOW" means, for any period, an amount
(if positive) equal to: (i) the sum, without duplication, of the amounts for
such period of (a) Consolidated Adjusted EBITDA, plus (b) the Consolidated
Working Capital Adjustment, minus (ii) the sum, without duplication, of the
amounts for such period of (a) voluntary and scheduled repayments of
Consolidated Total Debt (excluding repayments of Revolving Loans or Swing Line
Loans except to the extent the Revolving Commitments are permanently reduced in
connection with such repayments), (b)(x) Consolidated Capital Expenditures and
(y) Permitted Acquisition Expenses (excluding any Permitted Acquisition
Expenses paid in respect of Cash or Cash Equivalents of an acquired Person), in
each of cases (x) and (y) except to the extent financed with the proceeds of
Additional Sponsor Equity, other financings or Asset Sales, (c) Consolidated
Cash Interest Expense, (d) provisions for current taxes based on income of
Holdings and its Subsidiaries and payable in Cash with respect to such period
and (e) Transaction Costs and Landis Acquisition Transaction Costs payable in
Cash by Holdings and Company with respect to such period.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, total
interest expense (including that portion attributable to Capital Leases in
accordance with GAAP and capitalized interest) of Holdings and its Subsidiaries
on a consolidated basis with respect to all outstanding Indebtedness of
Holdings and its Subsidiaries, including all commissions, discounts and other
fees and charges owed with respect to letters of credit and net costs under
Interest Rate Agreements, but excluding, however, any amounts referred to in
Section 2.12(c) payable on or before the Effective Date.
"CONSOLIDATED NET INCOME" means, for any period, (i) the net
income (or loss) of Holdings and its Subsidiaries on a consolidated basis for
such period taken as a single accounting period determined in conformity with
GAAP, minus (ii) (a) the income (or loss) of any Person (other than a
Subsidiary of Holdings) in which any other Person (other than Holdings or any
10
of its Subsidiaries) has a joint interest, except to the extent of the amount
of dividends or other distributions actually paid to Holdings or any of its
Subsidiaries by such Person during such period, (b) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary of Holdings or is
merged into or consolidated with Holdings or any of its Subsidiaries or that
Person's assets are acquired by Holdings or any of its Subsidiaries, (c) the
income of any Subsidiary of Holdings to the extent that the declaration or
payment of dividends or similar distributions by that Subsidiary of that income
is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary, (d) any after-tax gains or losses
attributable to Asset Sales or returned surplus assets of any Pension Plan, and
(e) (to the extent not included in clauses (a) through (d) above) any non-Cash
net extraordinary gains or non-Cash net extraordinary losses.
"CONSOLIDATED TOTAL DEBT" means, as at any date of determination,
the aggregate stated balance sheet amount of all Indebtedness of Holdings and
its Subsidiaries determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED WORKING CAPITAL" means, as at any date of
determination, the excess of Consolidated Current Assets over Consolidated
Current Liabilities.
"CONSOLIDATED WORKING CAPITAL ADJUSTMENT" means, for any period,
the amount (which may be a negative number) of the following, without
duplication, (i) Consolidated Working Capital as of the beginning of such
period, minus (ii) Consolidated Working Capital as of the end of such period,
excluding from such calculation the Net Current Assets of any Subsidiary
acquired in a Permitted Acquisition during such period, determined at the time
of such acquisition.
"CONTRACTUAL OBLIGATION" means, as applied to any Person, any
provision of any Security issued by that Person or of any indenture, mortgage,
deed of trust, contract, written undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound
or to which it or any of its properties is subject.
"CONTRIBUTING GUARANTORS" as defined in Section 7.2.
"CONVERSION/CONTINUATION DATE" means the effective date of a
continuation or conversion, as the case may be, as set forth in the applicable
Conversion/Continuation Notice.
"CONVERSION/CONTINUATION NOTICE" means a Conversion/Continuation
Notice substantially in the form of Exhibit A-2.
"COUNTERPART AGREEMENT" means a Counterpart Agreement
substantially in the form of Exhibit H delivered by a Credit Party pursuant to
Section 5.10.
11
"CREDIT DATE" means the date of a Credit Extension.
"CREDIT DOCUMENT" means any of this Agreement (or, solely for the
purposes of historical conditions set forth in Section 3.1, the Original
Agreement), the Notes, if any, the Collateral Documents, any documents or
certificates executed by Company in favor of Issuing Bank relating to Letters
of Credit, any Incremental Term Loan Notice and all other documents,
instruments or agreements executed and delivered by a Credit Party for the
benefit of any Agent, Issuing Bank or any Lender in connection herewith or
therewith.
"CREDIT EXTENSION" means the making of a Loan or the issuing of a
Letter of Credit.
"CREDIT PARTY" means Company, the Guarantors and each other Person
(other than any Agent, Issuing Bank or any Lender or any other representative
thereof) from time to time party to a Credit Document.
"CURRENCY AGREEMENT" means any foreign exchange contract, currency
swap agreement, futures contract, option contract, synthetic cap or other
similar agreement or arrangement, each of which is for the purpose of hedging
the foreign currency risk associated with Holdings' and its Subsidiaries'
operations and not for speculative purposes.
"DEFAULT" means a condition or event that, after notice or lapse
of time or both, would constitute an Event of Default.
"DEFAULT EXCESS" means, with respect to any Defaulting Lender, the
excess, if any, of such Defaulting Lender's Pro Rata Share of the aggregate
outstanding principal amount of Loans of all Lenders (calculated as if all
Defaulting Lenders (other than such Defaulting Lender) had funded all of their
respective Defaulted Loans) over the aggregate outstanding principal amount of
all Loans of such Defaulting Lender.
"DEFAULT PERIOD" means, with respect to any Defaulting Lender, the
period commencing on the date of the applicable Funding Default and ending on
the earliest of the following dates: (i) the date on which all Commitments are
cancelled or terminated and/or the Obligations are declared or become
immediately due and payable, (ii) the date on which (a) the Default Excess with
respect to such Defaulting Lender shall have been reduced to zero (whether by
the funding by such Defaulting Lender of any Defaulted Loans of such Defaulting
Lender or by the non-pro rata application of any voluntary or mandatory
prepayments of the Loans in accordance with the terms of Section 2.14 or
Section 2.15 or by a combination thereof) and (b) such Defaulting Lender shall
have delivered to Company and Administrative Agent a written reaffirmation of
its intention to honor its obligations hereunder with respect to its
Commitments, and (iii) the date on which Company, Administrative Agent and
Requisite Lenders waive all Funding Defaults of such Defaulting Lender in
writing.
12
"DEFAULTING LENDER" as defined in Section 2.23.
"DEFAULTED LOAN" as defined in Section 2.23.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"DOLLARS" and the sign "$" mean the lawful money of the United
States of America.
"DOMESTIC SUBSIDIARY" means any Subsidiary organized under the
laws of the United States of America, any State thereof or the District of
Columbia, other than any such Subsidiary that has no material assets other than
Capital Stock of or other Investments in one or more Foreign Subsidiaries.
"EFFECTIVE DATE" as defined in Section 3.3.
"ELIGIBLE ASSIGNEE" means (i) any Lender, any Affiliate of any
Lender and any Related Fund (any two or more Related Funds being treated as a
single Eligible Assignee for all purposes hereof), and (ii) any commercial
bank, insurance company, investment or mutual fund or other entity that is an
"accredited investor" (as defined in Regulation D under the Securities Act) and
which extends credit or buys loans as one of its businesses; provided, no
Affiliate of Holdings shall be an Eligible Assignee.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" (as
defined in Section 3(3) of ERISA) which is or was sponsored, maintained or
contributed to by, or required to be contributed by, Holdings, any of its
Subsidiaries or any of their respective ERISA Affiliates.
"EMPLOYEE LEVERAGE PROGRAM" means the Holdings 2002 Stock Option
Plan, the Holdings Key Employee Equity Investment Plan and the agreements
relating to the investments by members of management of Holdings and its
subsidiaries in GS Berry Acquisition Corporation, including the contribution
and subscription agreements, management stockholders agreement and promissory
notes.
"ENVIRONMENTAL CLAIM" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise), by any governmental authority or
any other Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law; (ii) in connection with any
Hazardous Material or any actual or alleged Hazardous Materials Activity; or
(iii) in connection with any actual or alleged damage, injury, threat or harm
to health, safety, natural resources or the environment.
"ENVIRONMENTAL LAWS" means any and all current or future foreign
or domestic, federal or state (or any subdivision of either of them), statutes,
13
ordinances, orders, rules, regulations, judgments, Governmental Authorizations,
or any other requirements of Governmental Authorities relating to
(i) environmental matters, including those relating to any Hazardous Materials
Activity; (ii) the generation, use, storage, transportation or disposal of
Hazardous Materials; or (iii) occupational safety and health, industrial
hygiene, land use or the protection of human, plant or animal health in any
manner applicable to Holdings or any of its Subsidiaries or any Facility.
"EQUITY FINANCING" means the issuance for Cash by Holdings to
Sponsors and/or other investors acceptable to the Administrative Agent and the
Syndication Agent of not less than $245,000,000 of common equity in connection
with the Merger.
"EQUITY PROCEEDS" as defined in Section 6.8(d).
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any successor thereto.
"ERISA AFFILIATE" means, as applied to any Person, (i) any
corporation which is a member of a controlled group of corporations within the
meaning of Section 414(b) of the Internal Revenue Code of which that Person is
a member; (ii) any trade or business (whether or not incorporated) which is a
member of a group of trades or businesses under common control within the
meaning of Section 414(c) of the Internal Revenue Code of which that Person is
a member; and (iii) any member of an affiliated service group within the
meaning of Section 414(m) or (o) of the Internal Revenue Code of which that
Person, any corporation described in clause (i) above or any trade or business
described in clause (ii) above is a member. Any former ERISA Affiliate of
Holdings or any of its Subsidiaries shall continue to be considered an ERISA
Affiliate of Holdings or any such Subsidiary within the meaning of this
definition with respect to the period such entity was an ERISA Affiliate of
Holdings or such Subsidiary and with respect to liabilities arising after such
period for which Holdings or such Subsidiary could be liable under the Internal
Revenue Code or ERISA.
"ERISA EVENT" means (i) a "reportable event" within the meaning of
Section 4043 of ERISA and the regulations issued thereunder with respect to any
Pension Plan (excluding those for which the provision for 30-day notice to the
PBGC has been waived by regulation); (ii) the failure to meet the minimum
funding standard of Section 412 of the Internal Revenue Code with respect to
any Pension Plan (whether or not waived in accordance with Section 412(d) of
the Internal Revenue Code) or the failure to make by its due date a required
installment under Section 412(m) of the Internal Revenue Code with respect to
any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension
Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate
such plan in a distress termination described in Section 4041(c) of ERISA;
(iv) the withdrawal by Holdings, any of its Subsidiaries or any of their
respective ERISA Affiliates from any Pension Plan with two or more contributing
sponsors or the termination of any such Pension Plan resulting in liability to
14
Holdings, any of its Subsidiaries or any of their respective Affiliates
pursuant to Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of
proceedings to terminate any Pension Plan, or the occurrence of any event or
condition which could reasonably be likely to constitute grounds under ERISA
for the termination of, or the appointment of a trustee to administer, any
Pension Plan; (vi) the imposition of liability on Holdings, any of its
Subsidiaries or any of their respective ERISA Affiliates pursuant to Section
4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of
ERISA; (vii) the withdrawal of Holdings, any of its Subsidiaries or any of
their respective ERISA Affiliates in a complete or partial withdrawal (within
the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if
there is any potential liability therefore, or the receipt by Holdings, any of
its Subsidiaries or any of their respective ERISA Affiliates of notice from any
Multiemployer Plan that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA, or that it intends to terminate or has
terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of an
act or omission which could reasonably be expected to give rise to the
imposition on Holdings, any of its Subsidiaries or any of their respective
ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43
of the Internal Revenue Code or under Section 409, Section 502(c), (i) or (l),
or Section 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the
assertion of a material claim (other than routine claims for benefits) against
any Employee Benefit Plan other than a Multiemployer Plan or the assets
thereof, or against Holdings, any of its Subsidiaries or any of their
respective ERISA Affiliates in connection with any Employee Benefit Plan;
(x) receipt from the Internal Revenue Service of notice of the failure of any
Pension Plan (or any other Employee Benefit Plan intended to be qualified under
Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of
the Internal Revenue Code, or the failure of any trust forming part of any
Pension Plan to qualify for exemption from taxation under Section 501(a) of the
Internal Revenue Code; or (xi) the imposition of a Lien pursuant to Section
401(a)(29) or 412(n) of the Internal Revenue Code or pursuant to ERISA with
respect to any Pension Plan.
"EURODOLLAR RATE LOAN" means a Loan bearing interest at a rate
determined by reference to the Adjusted Eurodollar Rate.
"EVENT OF DEFAULT" means each of the conditions or events set
forth in Section 8.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"EXCLUDED FOREIGN SUBSIDIARIES" means one or more Foreign
Subsidiaries which, together with all their Subsidiaries, have either assets,
combined revenues from operations or combined income from continuing operations
that exceeded 5% of the combined assets, combined revenues from operations or
combined income from continuing operations of Holdings and its Subsidiaries,
taken as a whole, for any Fiscal Year.
15
"EXCLUDED TAX" means, with respect to Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any Obligation, (i) any Tax imposed as a result of a connection
or former connection between any Lender and the jurisdiction imposing such tax,
including without limitation, any connection arising from such Lender being or
having been a citizen, domiciliary, or resident of such jurisdiction, being
organized in such jurisdiction, or having had a permanent establishment or
fixed place of business therein, but excluding any such connection arising from
the activities of such Lender pursuant to or in respect of this Agreement or
any other Credit Document, including executing, delivering or performing its
obligations or receiving a payment under or enforcing this agreement or any
other loan document, and (ii) in the case of a U.S. Lender or Non-U.S. Lender
(other than a Replacement Lender that is an assignee pursuant to a request by
Company under Section 2.24), any withholding tax that (a) is imposed on amounts
payable to any such Non-U.S. Lender at the time such Non-U.S. Lender becomes a
party to this Agreement or designates a new lending office, or (b) is
attributable to such U.S. Lender or Non-U.S. Lender's failure to comply with
Section 2.21(c), except to the extent that such U.S. Lender or Non-U.S. Lender
(or its assignor, if any)was entitled, at the time of assignment or designation
of a new lending office, as the case may be, to receive additional amounts from
Company with respect to such withholding tax pursuant to Section 2.21(c).
"EXISTING AGREEMENT" as defined in the recitals hereto.
"FACILITY" means any real property (including all buildings,
fixtures or other improvements located thereon) now, hereafter or heretofore
owned, leased, operated or used by Holdings or any of its Subsidiaries or any
of their respective predecessors or Affiliates.
"FAIR SHARE" as defined in Section 7.2 .
"FAIR SHARE CONTRIBUTION AMOUNT" as defined in Section 7.2.
"FAIR SHARE SHORTFALL" as defined in Section 7.2.
"FEDERAL FUNDS EFFECTIVE RATE" means for any day, the rate per
annum (expressed, as a decimal, rounded upwards, if necessary, to the next
higher 1/100 of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal Reserve Bank
of New York on the Business Day next succeeding such day; provided, (i) if such
day is not a Business Day, the Federal Funds Rate for such day shall be such
rate on such transactions on the next preceding Business Day as so published on
the next succeeding Business Day, and (ii) if no such rate is so published on
such next succeeding Business Day, the Federal Funds Rate for such day shall be
the average rate charged to Administrative Agent, in its capacity as a Lender,
on such day on such transactions as determined by Administrative Agent.
16
"FINANCIAL HEDGE AGREEMENT" means an Interest Rate Agreement or a
Currency Agreement entered into with a Lender Counterparty in order to satisfy
the requirements of this Agreement or otherwise in the ordinary course of
business of Company or any of its Subsidiaries.
"FINANCIAL OFFICER CERTIFICATION" means, with respect to the
financial statements for which such certification is required, the
certification of the chief financial officer of Holdings that such financial
statements fairly present, in all material respects, the financial condition of
Holdings and its Subsidiaries as at the dates indicated and the results of
their operations and their cash flows for the periods indicated, subject to
changes resulting from audit and normal year-end adjustments.
"FINANCIAL PLAN" as defined in Section 5.1(i).
"FIRST PRIORITY" means, with respect to any Lien purported to be
created in any Collateral pursuant to any Collateral Document, that such Lien
is the only Lien to which such Collateral is subject, other than Permitted
Liens described in clauses (a) through (n) of Section 6.2.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of Company, which shall be a
period of 52 or 53 weeks, as applicable, ending on the Saturday nearest the end
of each calendar year.
"FLOOD HAZARD PROPERTY" means any Real Estate Asset subject to a
mortgage in favor of Collateral Agent, for the benefit of Lenders, and located
in an area designated by the Federal Emergency Management Agency as having
special flood or mud slide hazards.
"FOREIGN SUBSIDIARY" means any Subsidiary that is not a Domestic
Subsidiary.
"FUNDING DEFAULT" as defined in Section 2.23.
"FUNDING GUARANTORS" as defined in Section 7.2.
"FUNDING NOTICE" means a notice substantially in the form of
Exhibit A-1.
"GAAP" means, subject to the limitations on the application
thereof set forth in Section 1.2, United States generally accepted accounting
principles.
"GOVERNMENTAL ACTS" means any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
Governmental Authority.
17
"GOVERNMENTAL AUTHORITY" means any federal, state, municipal,
national or other government, governmental department, commission, board,
bureau, court, agency or instrumentality or political subdivision thereof or
any entity or officer exercising executive, legislative, judicial, regulatory
or administrative functions of or pertaining to any government or any court, in
each case whether associated with a state of the United States, the United
States, or a foreign entity or government.
"GOVERNMENTAL AUTHORIZATION" means any permit, license,
authorization, plan, directive, consent order or consent decree of or from any
Governmental Authority.
"GRANTOR" as defined in the Pledge and Security Agreement.
"GSCP" as defined in the preamble hereto.
"GUARANTEED OBLIGATIONS" as defined in Section 7.1.
"GUARANTOR" means each of Holdings and each Domestic Subsidiary of
Holdings (other than Company) from time to time.
"GUARANTOR SUBSIDIARY" means each Guarantor other than Holdings.
"GUARANTY" means the guaranty of each Guarantor set forth in
Section 7.
"HAZARDOUS MATERIALS" means any chemical, material or substance,
exposure to which is prohibited, limited or regulated by any Governmental
Authority or which may or could pose a hazard to the health and safety of the
owners, occupants or any Persons in the vicinity of any Facility or to the
indoor or outdoor environment.
"HAZARDOUS MATERIALS ACTIVITY" means any past, current, proposed
or threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous
Materials, and any corrective action or response action with respect to any of
the foregoing.
"HIGHEST LAWFUL RATE" means the maximum lawful interest rate, if
any, that at any time or from time to time may be contracted for, charged, or
received under the laws applicable to any Lender which are presently in effect
or, to the extent allowed by law, under such applicable laws which may
hereafter be in effect and which allow a higher maximum nonusurious interest
rate than applicable laws now allow.
"HISTORICAL FINANCIAL STATEMENTS" means as of the Effective Date,
(i) the audited financial statements of Holdings and its Subsidiaries, for the
immediately preceding three Fiscal Years, consisting of balance sheets and the
related consolidated statements of income, stockholders' equity and cash flows
18
for such Fiscal Years, and (ii) the unaudited financial statements of Holdings
and its Subsidiaries as at the most recently ended Fiscal Quarter, consisting
of a balance sheet and the related consolidated statements of income,
stockholders' equity and cash flows for the three-, six- or nine-month period,
as applicable, ending on such date, and, in the case of clauses (i) and (ii),
certified by the Chief Financial Officer of Holdings that they fairly present,
in all material respects, the financial condition of Holdings and its
Subsidiaries as at the dates indicated and the results of their operations and
their cash flows for the periods indicated, subject to changes resulting from
audit and normal year-end adjustments.
"HISTORICAL QUARTER" as defined in Section 6.8(d)(iv).
"HOLDINGS" as defined in the preamble hereto.
"INCREASED-COST LENDERS" as defined in Section 2.24.
"INCREMENTAL TERM LOAN" means any Indebtedness of Company in
respect of borrowed money ranking pari passu with Company's Obligations under
this Agreement and incurred by Company pursuant to Section 2.2.
"INCREMENTAL TERM LOAN CLOSING DATE" means any Business Day
designated as such in an Incremental Term Loan Notice.
"INCREMENTAL TERM LOAN EXPOSURE" means, with respect to any
Lender, as of any date of determination, the outstanding principal amount of
the Incremental Term Loans of such Lender.
"INCREMENTAL TERM LOAN INSTALLMENT DATE" as defined in Section
2.13(b).
"INCREMENTAL TERM LOAN LENDER" means any Lender or any financial
institution, in each case, that is a signatory to an Incremental Term Loan
Notice in the capacity of an Incremental Term Loan Lender.
"INCREMENTAL TERM LOAN MATURITY DATE" means, with respect to any
Incremental Term Loan to be made pursuant to any Incremental Term Loan Notice,
the maturity date specified in such Incremental Term Loan Notice, which date
shall be on or after the Maturity Date of the Term Loan.
"INCREMENTAL TERM LOAN NOTE" means a promissory note in the form
of Exhibit B-2, as it may be amended, supplemented or otherwise modified from
time to time.
"INCREMENTAL TERM LOAN NOTICE" means an Incremental Term Loan
Notice substantially in the form of Exhibit A-4.
19
"INDEBTEDNESS", as applied to any Person, means, without
duplication, (i) all indebtedness for borrowed money; (ii) that portion of
obligations with respect to Capital Leases that is properly classified as a
liability on a balance sheet in conformity with GAAP; (iii) notes payable and
drafts accepted representing extensions of credit whether or not representing
obligations for borrowed money; (iv) any obligation owed for all or any part of
the deferred purchase price of property or services (excluding any such
obligations incurred under ERISA or any purchase price adjustment under Section
2.9 of the Landis Merger Agreement), which purchase price is (a) due more than
six months from the date of incurrence of the obligation in respect thereof or
(b) evidenced by a note or similar written instrument; (v) all indebtedness
secured by any Lien on any property or asset owned or held by that Person
regardless of whether the indebtedness secured thereby shall have been assumed
by that Person or is nonrecourse to the credit of that Person; (vi) the face
amount of any letter of credit issued for the account of that Person or as to
which that Person is otherwise liable for reimbursement of drawings; (vii) the
direct or indirect guaranty, endorsement (otherwise than for collection or
deposit in the ordinary course of business of Company and its Subsidiaries),
co-making, discounting with recourse or sale with recourse by such Person of
the obligation of another; (viii) any obligation of such Person the primary
purpose or intent of which is to provide assurance to an obligee that the
obligation of the obligor thereof will be paid or discharged, or any agreement
relating thereto will be complied with, or the holders thereof will be
protected (in whole or in part) against loss in respect thereof; and (ix) any
liability of such Person for the obligation of another through any agreement
(contingent or otherwise) (a) to purchase, repurchase or otherwise acquire such
obligation or any security therefor, or to provide funds for the payment or
discharge of such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise) or (b) to maintain the solvency
or any balance sheet item, level of income or financial condition of another
if, in the case of any agreement described under subclauses (a) or (b) of this
clause (ix), the primary purpose or intent thereof is as described in
clause (viii) above; and (x) net obligations of such Person to a counterparty
in respect of any exchange traded or over the counter derivative transaction,
including, without limitation, Financial Hedge Agreements, whether entered into
for hedging or speculative purposes; provided, in no event shall obligations
under any Financial Hedge Agreements be deemed "Indebtedness" for any purpose
under Section 6.8.
"INDEMNIFIED LIABILITIES" means, collectively, any and all
liabilities, obligations, losses, damages, penalties, claims (including
Environmental Claims), costs (including the costs of any investigation, study,
sampling, testing, abatement, cleanup, removal, remediation or other response
action necessary to remove, remediate, clean up or abate any Hazardous
Materials Activity), expenses and disbursements of any kind or nature
whatsoever (including the reasonable fees and disbursements of counsel for
Indemnitees in connection with any investigative, administrative or judicial
proceeding commenced or threatened by any Person, whether or not any such
Indemnitee shall be designated as a party or a potential party thereto, and any
fees or expenses incurred by Indemnitees in enforcing this indemnity), whether
direct, indirect or consequential and whether based on any federal, state or
foreign laws, statutes, rules or regulations (including securities and
20
commercial laws, statutes, rules or regulations and Environmental Laws), on
common law or equitable cause or on contract or otherwise, that may be imposed
on, incurred by, or asserted against any such Indemnitee, in any manner
relating to or arising out of (i) this Agreement or the other Credit Documents
or the transactions contemplated hereby or thereby (including Lenders'
agreement to make Credit Extensions or the use or intended use of the proceeds
thereof, any enforcement of any of the Credit Documents (including any sale of,
collection from, or other realization upon any of the Collateral or the
enforcement of the Guaranty) or the Issuing Bank's issuance of any Letter of
Credit or its failure to honor a drawing under any such Letter of Credit as a
result of any Governmental Act); (ii) the statements contained in the
commitment letter delivered by any Lender to Sponsors with respect to the
transactions contemplated by this Agreement; or (iii) any (a) Hazardous
Materials Activity which can reasonably be expected to result in non-compliance
with, or liability under, Environmental Laws, or (b) Environmental Claim
relating to or arising from any past or present activity, operation, land
ownership, or practice of Holdings or any of its Subsidiaries.
"INDEMNITEE" as defined in Section 10.3 .
"INTERCOMPANY SUBORDINATION AGREEMENT" means an agreement in the
form of Exhibit L.
"INTEREST COVERAGE RATIO" means the ratio as of the last day of
any Fiscal Quarter of (i) Consolidated Adjusted EBITDA for the four-Fiscal
Quarter period then ended, to (ii) Consolidated Cash Interest Expense for such
four-Fiscal Quarter period.
"INTEREST PAYMENT DATE" means with respect to (i) any Base Rate
Loan, each March 31, June 30, September 30 and December 31 of each year,
commencing on the first such date to occur after the Closing Date and the final
maturity date of such Loan; and (ii) any Eurodollar Rate Loan, the last day of
each Interest Period applicable to such Loan; provided, in the case of each
Interest Period of longer than three months "Interest Payment Date" shall also
include each date that is three months, or an integral multiple thereof, after
the commencement of such Interest Period.
"INTEREST PERIOD" means, in connection with a Eurodollar Rate
Loan, an interest period of one-, two-, three- or six-months, as selected by
Company in the applicable Funding Notice or Conversion/Continuation Notice,
(i) initially, commencing on the Credit Date or Conversion/Continuation Date
thereof, as the case may be; and (ii) thereafter, commencing on the day on
which the immediately preceding Interest Period expires; provided, (a) if an
Interest Period would otherwise expire on a day that is not a Business Day,
such Interest Period shall expire on the next succeeding Business Day unless no
further Business Day occurs in such month, in which case such Interest Period
shall expire on the immediately preceding Business Day; (b) any Interest Period
that begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
21
such Interest Period) shall, subject to clause (c) of this definition, end on
the last Business Day of a calendar month; (c) no Interest Period with respect
to any portion of any Term Loans shall extend beyond the Term Loan Maturity
Date; and (d) no Interest Period with respect to any portion of the Revolving
Loans shall extend beyond the Revolving Commitment Termination Date.
"INTEREST RATE AGREEMENT" means any interest rate swap agreement
(including any fixed rate or floating rate swap agreement), interest rate cap
agreement, interest rate collar agreement, interest rate hedging agreement or
other similar agreement or arrangement, each of which is for the purpose of
hedging the interest rate exposure associated with Holdings' and its
Subsidiaries' operations and not for speculative purposes.
"INTEREST RATE DETERMINATION DATE" means, with respect to any
Interest Period, the date that is two Business Days prior to the first day of
such Interest Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986,
as amended to the date hereof and from time to time hereafter, and any
successor statute.
"INVESTMENT" means any (i) purchase or other acquisition
(including pursuant to any merger) of the Capital Stock or other Securities of
any Person, or any beneficial interest therein or (ii) loan, advance, capital
contribution to, or any other investment in, any Person (other than the
purchase of current accounts receivable arising in the ordinary course of
business of Company and its Subsidiaries). The amount of any Investment shall
be equal to the sum of (a) the original cost of such Investment, plus (b) the
cost of all additions thereto, minus (c) any cash proceeds from the disposition
of or other cash distributions on such Investment to the extent such proceeds
or distributions do not constitute Consolidated Net Income, without any
adjustments for increases or decreases in value or write-ups, write-downs or
write-offs with respect to such Investment, provided that the amount of any
Investment shall not be less than zero.
"ISSUANCE NOTICE" means an Issuance Notice substantially in the
form of Exhibit A-3.
"ISSUING BANK" as defined in the preamble.
"JOINDER AGREEMENT" means an agreement substantially in the form
of Exhibit M.
"JOINT VENTURE" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal form;
provided, in no event shall any Subsidiary of any Person be considered a Joint
Venture to which such Person is a party.
"JPMCB" as defined in the preamble hereto.
22
"LANDIS" means Landis Plastics, Inc., an Illinois corporation.
"LANDIS ACQUISITION" means the acquisition by Company of Landis
pursuant to the Landis Merger Agreement.
"LANDIS ACQUISITION CLOSING DATE" means November 10, 2003.
"LANDIS ACQUISITION DOCUMENTS" means the Landis Merger Agreement
and any other agreements, instruments and other documents delivered in
connection with the Landis Acquisition, including, without limitation, any
leases in respect of Material Real Estate Assets.
"LANDIS ACQUISITION LEASEHOLD PROPERTY" means each of the Alsip-
Main, IL, Alsip-North IL, Geddes, NY and Phoenix, AZ properties to be leased
pursuant to that certain Lease Agreement, to be dated as of the Landis
Acquisition Closing Date, between BRY-PL (DE) Limited Partnership, a Delaware
limited partnership, as Landlord, and Landis, as tenant.
"LANDIS ACQUISITION FINANCING REQUIREMENTS" means the aggregate
amount necessary to pay (i) the Cash portion of the consideration due to
shareholders of Landis under the Landis Merger Agreement, (ii) the costs of
prepaying, redeeming or purchasing the Indebtedness of Landis to be paid on or
prior to the Landis Acquisition Closing Date and (iii) Landis Acquisition
Transaction Costs, in each of cases (i), (ii) and (iii) in accordance with the
Landis Merger Agreement.
"LANDIS ACQUISITION SENIOR SUBORDINATED NOTES" means Senior
Subordinated Notes in an aggregate principal amount of $85,000,000 issued
pursuant to the Senior Subordinated Notes Indenture, the proceeds of which were
used to finance Landis Acquisition Financing Requirements.
"LANDIS ACQUISITION TRANSACTION COSTS" means (a) the write-off of
deferred financing costs capitalized in connection with the entering into the
Original Agreement and (b) the fees, costs and expenses payable by Holdings,
Company or any of Company's Subsidiaries on or before the Landis Acquisition
Closing Date in connection with the transactions contemplated by the Credit
Documents and the Landis Merger Agreement, which fees, costs and expenses under
clause (b) hereof shall not exceed $12,000,000.
"LANDIS MERGER AGREEMENT" means an agreement and plan of merger
dated October 15, 2003 by and among Company, Merger Sub (as defined in the
Existing Agreement), Landis, all shareholders of Landis and the other parties
thereto, which provides for the merger of Landis with and into Merger Sub with
Landis being the surviving corporation.
"LANDLORD'S CONSENT, ESTOPPEL CERTIFICATE AND AMENDMENT" means (a)
with respect to each Landis Acquisition Leasehold Property, an agreement
23
substantially in the form of the draft Landlord's Acknowledgment and Consent,
draft dated the date hereof, from BRY-PL (DE) Limited Partnership and (b) with
respect to any other Leasehold Property, an agreement substantially in the form
of Exhibit K, in each of cases (a) and (b) with such amendments or
modifications as may be approved by Collateral Agent.
"LEASEHOLD PROPERTY" means any leasehold interest of any Credit
Party as lessee under any lease of real property.
"LENDER" means each financial institution listed on the signature
pages hereto as a Lender, any additional financial institution or Person that
becomes a party hereto pursuant to a New Lender Supplement and any other Person
that becomes a party hereto pursuant to an Assignment Agreement or a Joinder
Agreement, including any Lender in its capacity as Swing Line Lender and
Issuing Bank.
"LENDER COUNTERPARTY" means each Lender or any Affiliate of a
Lender counterparty to a Financial Hedge Agreement including, without
limitation, each such Affiliate that enters into a Joinder Agreement with the
Collateral Agent.
"LENDER EFFECTIVE DATE" means (i) in the case of each Lender
listed on the signature pages hereof, the Effective Date, and (ii) in the case
of each other Lender, the effective date of the Assignment Agreement pursuant
to which such Lender became a Lender.
"LETTER OF CREDIT" means a commercial or standby letter of credit
issued or to be issued by Issuing Bank pursuant to this Agreement.
"LETTER OF CREDIT DISBURSEMENT" means a payment made by Issuing
Bank pursuant to a Letter of Credit.
"LETTER OF CREDIT EXPOSURE" means the aggregate Letter of Credit
Usage in respect of all Letters of Credit issued by that Lender (net of any
participations by Lenders in such Letters of Credit.
"LETTER OF CREDIT SUBLIMIT" means the lesser of (i) $25,000,000
and (ii) the aggregate unused amount of the Revolving Commitments then in
effect.
"LETTER OF CREDIT USAGE" means, as at any date of determination,
the sum of (i) the maximum aggregate amount which is, or at any time thereafter
may become, available for drawing under all Letters of Credit then outstanding,
and (ii) the aggregate amount of all drawings under Letters of Credit honored
by Issuing Bank and not theretofore reimbursed by or on behalf of Company.
"LEVERAGE RATIO" means the ratio as of the last day of any Fiscal
Quarter or other date of determination of (i) Consolidated Total Debt as of
such day to (ii) Consolidated Adjusted EBITDA for the four-Fiscal Quarter
period ending on such date (or if such date of determination is not the last of
a Fiscal Quarter, for the four-Fiscal Quarters period ending as of the most
recently concluded Fiscal Quarter).
24
"LIEN" means (i) any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any agreement to give
any of the foregoing, any conditional sale or other title retention agreement,
and any lease in the nature thereof) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing
and (ii) in the case of Securities, any purchase option, call or similar right
of a third party with respect to such Securities.
"LOAN" means a Term Loan, a Swing line Loan, a Revolving Loan, and
an Incremental Term Loan.
"MARGIN STOCK" as defined in Regulation U of the Board of
Governors of the Federal Reserve System as in effect from time to time.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
and/or material adverse developments with respect to (i) the business,
operations, properties, assets, condition (financial or otherwise) or prospects
of Holdings and its Subsidiaries, taken as a whole; (ii) the ability of the
Credit Parties, taken as a whole, to fully and timely perform the Obligations;
(iii) the legality, validity, binding effect or enforceability of any Credit
Document against the Credit Parties, taken as a whole, or the Collateral; or
(iv) the rights, remedies and benefits available to, or conferred upon, any
Agent, Lender or Secured Party under any Credit Document.
"MATERIAL REAL ESTATE ASSET" means (i) (a) any fee-owned Real
Estate Asset having a fair market value in excess of $1,000,000 as of the date
of the acquisition thereof and (b) all Leasehold Properties (x) used in the
operation of material production facilities of Company or any of its
Subsidiaries or (y) with respect to which the aggregate rental payments under
the term of the applicable lease exceed $1,000,000 per annum or (ii) any Real
Estate Asset that the Requisite Lenders have determined is material to the
business, operations, properties, assets, condition (financial or otherwise) or
prospects of Holdings and its Subsidiaries, taken as a whole.
"MERGER" means the acquisition by Sponsors of substantially all
the outstanding Capital Stock of Holdings.
"MERGER AGREEMENT" means the Agreement and Plan of Merger, dated
as of May 25, 2002, among GS Berry Acquisition Corp., Sponsors, Holdings,
Company, Sellers (as defined therein) and Sellers' Representatives (as defined
therein), as in effect on the date hereof.
"MERGER FINANCING REQUIREMENTS" means the aggregate amount
necessary to pay (i) the cash portion of the consideration due to shareholders
of Holdings under the Merger Agreement, (ii) the costs of prepaying, redeeming
or purchasing the Indebtedness of Holdings and Company to be paid on the
Closing Date and thereafter pursuant to redemption notices to be delivered on
25
the Closing Date and (iii) all other Transaction Costs, in each of cases (i),
(ii) and (iii) in accordance with the Merger Agreement and Schedule 1.1.
"MOODY'S" means Moody's Investor Services, Inc.
"MORTGAGE" means a mortgage substantially in the form of
Exhibit J, as it may be amended, supplemented or otherwise modified from time
to time.
"MULTIEMPLOYER PLAN" means any Employee Benefit Plan which is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"NAIC" means The National Association of Insurance Commissioners,
and any successor thereto.
"NARRATIVE REPORT" means, with respect to the financial statements
for which such narrative report is required, a narrative report describing the
operations of Holdings and its Subsidiaries in the form prepared for
presentation to senior management thereof for the applicable month, Fiscal
Quarter or Fiscal Year and for the period from the beginning of the then
current Fiscal Year to the end of such period to which such financial
statements relate.
"NET ASSET SALE PROCEEDS" means, with respect to any Asset Sale,
an amount equal to: (i) Cash payments (including any Cash received by way of
deferred payment pursuant to, or by monetization of, a note receivable or
otherwise, but only as and when so received) received by Holdings or any of its
Subsidiaries from such Asset Sale, minus (ii) any bona fide direct costs and
expenses incurred in connection with such Asset Sale, including (a) income or
gains taxes payable by the seller as a result of any gain recognized in
connection with such Asset Sale, (b) payment of the outstanding principal
amount of, premium or penalty, if any, and interest on any Indebtedness (other
than the Loans) that is secured by a Lien on the stock or assets in question
and that is required to be repaid under the terms thereof as a result of such
Asset Sale, (c) a reasonable reserve for any indemnification payments (fixed or
contingent) attributable to seller's indemnities and representations and
warranties to purchaser in respect of such Asset Sale undertaken by Holdings or
any of its Subsidiaries in connection with such Asset Sale, and (d) reasonable
brokerage or selling commissions and fees and expenses of professional advisors
and any title and recordation expenses.
"NET CURRENT ASSETS" means, for any Person as at any date of
determination, the difference (which may be a negative number) between (i) the
total assets of such Person that may properly be classified as current assets
in conformity with GAAP, excluding Cash and Cash Equivalents, minus (ii) the
total liabilities of such Person that may properly be classified as current
liabilities in conformity with GAAP, excluding the current portion of long term
debt.
26
"NET INSURANCE/CONDEMNATION PROCEEDS" means an amount equal to:
(i) any Cash payments or proceeds received by Holdings or any of its
Subsidiaries (a) under any insurance policy insuring against loss or damage to
assets and property used in the business of Holdings or its Subsidiaries (other
than proceeds of business interruption insurance or any other insurance policy
to the extent such coverage compensates Company or its Subsidiaries for lost
revenue or profits) or (b) as a result of the taking of any assets of Holdings
or any of its Subsidiaries by any Person pursuant to the power of eminent
domain, condemnation or otherwise, or pursuant to a sale of any such assets to
a purchaser with such power under threat of such a taking, minus (ii) (a) bona
fide direct reasonable costs and expenses incurred by Holdings or any of its
Subsidiaries in connection with the adjustment or settlement of any claims of
Holdings or such Subsidiary in respect thereof (including reasonable fees and
expenses of professional advisors), (b) contractually required payments of
Surviving Capital Leases, Surviving IRBs and Indebtedness incurred under
Sections 6.1(g), 6.1(h), 6.1(j) and 6.1(k), in each case, to the extent
incurred to finance the acquisition of property subject to such loss, taking or
sale, and (c) any bona fide direct costs and expenses incurred in connection
with any sale of such assets as referred to in clause (i)(b) of this
definition, including income taxes payable as a result of any gain recognized
in connection therewith, reasonable fees and expenses of professional advisors,
title and recordation expenses and reasonable indemnification reserves.
"NEW LENDER" means any financial institution or other Person, in
each case, not a party to this Agreement, which, with the consent of Company
and Administrative Agent (which consent shall not be unreasonably withheld),
executes a New Lender Supplement, whereupon such Person shall become a Lender
for all purposes and to the same extent as if originally a party hereto and
shall be bound by and entitled to the benefits of this Agreement, except as
otherwise specifically provided herein.
"NEW LENDER SUPPLEMENT" means a New Lender Supplement
substantially in the form of Exhibit N.
"NON-CONSENTING LENDER" as defined in Section 2.24.
"NON-US LENDER" as defined in Section 2.21(c).
"NOTE" means a Term Loan Note, a Swing Line Note, an Incremental
Term Loan Note or a Revolving Loan Note.
"NOTICE" means a Funding Notice, an Issuance Notice, or a
Conversion/Continuation Notice.
"OBLIGATIONS" means all obligations of every nature of each Credit
Party from time to time owed to the Agents (including former Agents), the
Lenders or any Lender Counterparties, under any Credit Document or Financial
Hedge Agreement (including, without limitation, with respect to a Financial
Hedge Agreement, obligations owed thereunder to any person who was a Lender or
an Affiliate of a Lender at the time such Financial Hedge Agreement was entered
27
into), whether for principal, interest (including interest which, but for the
filing of a petition in bankruptcy with respect to such Credit Party, would
have accrued on any Obligation, whether or not a claim is allowed against such
Credit Party for such interest in the related bankruptcy proceeding),
reimbursement of amounts drawn under Letters of Credit, payments for early
termination of Financial Hedge Agreements, fees, expenses, indemnification or
otherwise and all Obligations of each Credit Party under the Original Agreement
or the Existing Agreement that survive the amendment and restatement thereof in
accordance with its terms.
"OBLIGEE GUARANTOR" as defined in Section 7.7.
"ORIGINAL AGREEMENT" means the Credit and Guaranty Agreement,
dated as of July 22, 2002, by and among Holdings, certain Subsidiaries of
Company as Guarantors, the Agents and various Lenders.
"ORGANIZATIONAL DOCUMENTS" means (i) with respect to any
corporation, its certificate or articles of incorporation or organization, as
amended, and its by-laws, as amended, (ii) with respect to any limited
partnership, its certificate of limited partnership, as amended, and its
partnership agreement, as amended, (iii) with respect to any general
partnership, its partnership agreement, as amended, and (iv) with respect to
any limited liability company, its articles of organization, as amended, and
its operating agreement, as amended. In the event any term or condition of
this Agreement or any other Credit Document requires any Organizational
Document to be certified by a secretary of state or similar governmental
official, the reference to any such "Organizational Document" shall only be to
a document of a type customarily certified by such governmental official.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue
Code or Section 302 of ERISA.
"PERMITTED ACQUISITION" means any acquisition by Company or any of
its Wholly-Owned Guarantor Subsidiaries, whether by purchase, merger or
otherwise, of all or substantially all of the assets or Capital Stock of, or of
a business line or unit or a division of, any Person; provided,
(i) immediately prior to, and after giving effect
thereto, no Default or Event of Default shall have occurred and be
continuing or would result therefrom;
(ii) all transactions in connection therewith shall be
consummated, in all material respects, in accordance with all applicable
laws and in conformity with all applicable Governmental Authorizations;
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(iii) in the case of the acquisition of Capital Stock of
any Person, (A) at least 80% on a fully-diluted basis of each class of
the Capital Stock acquired or otherwise issued by such Person or any
newly formed Subsidiary of Company in connection with such acquisition
shall be owned beneficially and as of record by Company or a Wholly-
Owned Guarantor Subsidiary thereof, and all other such Capital Stock
shall be owned beneficially and as of record by one or more officers,
directors, employees or founders of such Person, and (B) Company shall
have taken, or caused to be taken, as of the date such Person becomes a
Subsidiary, each of the actions set forth in Sections 5.10 and/or
5.11, as applicable;
(iv) Holdings and its Subsidiaries shall be in compliance
with the financial covenants set forth in Section 6.8 as of the later of
(x) March 30, 2002 and (y) the last day of the most recent Fiscal
Quarter for which quarterly financial statements have been delivered to
the Lenders pursuant to Section 5.1(b), on a pro forma basis after
giving effect to the Permitted Acquisition as a Subject Transaction in
accordance with Section 6.8;
(v) Company shall have delivered to Administrative Agent
(for distribution to each Lender upon request) at least ten Business
Days prior to such proposed acquisition:
(A) solely in the case of an acquisition in
respect of which the aggregate amount of Permitted Acquisition
Expenses exceed, $20,000,000, a Compliance Certificate evidencing
compliance with Section 6.8 as required under clause (iv) above;
(B) a certificate of the Chief Financial Officer
of Holdings certifying that the unused and available portion of
Revolving Commitments will exceed $30,000,000 as of the date of
the consummation of such acquisition, after giving effect thereto;
(C) all relevant financial information with
respect to such acquired assets, including, without limitation,
the aggregate consideration for such acquisition and any other
information required to demonstrate compliance with this
Agreement; and
(D) such information and due diligence materials
relating to environmental matters as may be required under
Section 5.9(a)(iv) or as may be otherwise reasonably requested by
the Administrative Agent; and
(vi) any Person, assets or business line, unit or division
as acquired in accordance herewith shall be in a business or lines of
business permitted for Company under Section 6.13; and
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(vii) in the case of a direct or indirect acquisition of a
Foreign Subsidiary or any assets, business line, unit or division
located outside the United States of America, on a pro forma basis after
giving effect to such acquisition as of the last day of the Fiscal
Quarter recently ended, Domestic Subsidiaries account for (A) at least
80% of the consolidated assets of Holdings and its Subsidiaries of
Holdings (including Company) as of the last day of the Fiscal Quarter
recently ended and (B) at least 80% of the consolidated revenues of
Holdings and its Subsidiaries for the last four full Fiscal Quarters
recently ended;
provided, no acquisition of assets, Capital Stock, a business line or unit or a
division of any Person shall constitute a Permitted Acquisition unless made
with the consent of such Person's board of directors or similar governing body.
"PERMITTED ACQUISITION EXPENSES" means Cash (a) consideration paid
by Company or any of its wholly-owned Subsidiaries to acquire assets, Capital
Stock or a business line or unit or division in connection with a Permitted
Acquisition made in accordance with Section 6.9(d), (b) bona fide direct costs
and expenses incurred as a result of a Permitted Acquisition (including costs
and expenses related to the shutdown of facilities and employee severance) to
the extent such costs and expenses (i) are capitalized as part of the cost of
the Permitted Acquisition in the consolidated financial statements of Holdings
and (ii) are paid by Company or its Subsidiaries no more than 180 days from
the date of such Permitted Acquisition, and (c) bona fide direct costs and
expenses paid in connection with such Permitted Acquisition, including
reasonable brokerage or selling commissions and fees and expenses of
professional advisors and any title and recordation expenses, provided, no
Restricted Junior Payment shall constitute a Permitted Acquisition Expense.
"PERMITTED ADJUSTMENTS" means, with respect to any Subject
Transactions, pro forma adjustments arising out of events which are directly
attributable to such Subject Transactions, are factually supportable and are
expected to have a continuing impact, which would include cost savings
resulting from head count reduction, closure of facilities and similar
restructuring charges and raw material and other cost savings, which pro forma
adjustments are certified by the Chief Financial Officer of Holdings and which
are determined (i) on a basis consistent with Article 11 of Regulation S-X
promulgated under the Securities Act and as interpreted by the staff of the
Securities and Exchange Commission or (ii) solely in the case of additional pro
forma adjustments to Consolidated Adjusted EBITDA in an aggregate amount (for
all Subject Transactions during the period of determination and together with
any adjustments to Consolidated Adjusted EBITDA pursuant to Section 6.8(d)(ii)
for the same period) not to exceed 7.5% of pro forma Consolidated Adjusted
EBITDA (as reformulated) for the period of determination, on such other basis
as may be certified by the Chief Financial Officer of Holdings to be in
compliance with the requirements of this definition.
"PERMITTED LIENS" means each of the Liens permitted pursuant to
Section 6.2.
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"PERSON" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or
other organizations, whether or not legal entities, and Governmental
Authorities.
"PLEDGE AND SECURITY AGREEMENT" means the Pledge and Security
Agreement to be executed by Company and each Guarantor substantially in the
form of Exhibit I, as it may be amended, supplemented or otherwise modified
from time to time.
"PRIME RATE" means the rate of interest per annum that GSCP
announces from time to time as its prime lending rate, as in effect from time
to time. The Prime Rate is a reference rate and does not necessarily represent
the lowest or best rate actually charged to any customer. GSCP or any other
Lender may make commercial loans or other loans at rates of interest at, above
or below the Prime Rate.
"PRINCIPAL OFFICE" means, for each of Administrative Agent, Swing
Line Lender and Issuing Bank, such Person's "Principal Office" as set forth on
Appendix B, or such other office as such Person may from time to time designate
in writing to Company, Administrative Agent and each Lender.
"PROJECTIONS" as defined in Section 4.9.
"PRO RATA SHARE" means (i) with respect to all payments,
computations and other matters relating to the Term Loan of any Lender, the
percentage obtained by dividing (a) the Term Loan Exposure of that Lender by
(b) the aggregate Term Loan Exposure of all Lenders; (ii) with respect to all
payments, computations and other matters relating to the Revolving Commitment
or Revolving Loans of any Lender or any Letters of Credit issued or
participations purchased therein by any Lender or any participations in any
Swing Line Loans purchased by any Lender, the percentage obtained by dividing
(a) the Revolving Exposure of that Lender by (b) the aggregate Revolving
Exposure of all Lenders; and (iii) with respect to all payments, computations
and other matters relating to the Incremental Term Loans of any Lender, the
percentage obtained by dividing (a) the Incremental Term Loan Exposure of that
Lender by (b) the aggregate Incremental Term Loan Exposure of all Lenders. For
all other purposes with respect to each Lender, "Pro Rata Share" means the
percentage obtained by dividing (A) an amount equal to the sum of the Term Loan
Exposure, the Revolving Exposure and the Incremental Term Loan Exposure of that
Lender, by (B) an amount equal to the sum of the aggregate Term Loan Exposure,
the aggregate Revolving Exposure, and the aggregate Incremental Term Loan
Exposure of all Lenders.
"REAL ESTATE ASSET" means, at any time of determination, any
interest (fee, leasehold or otherwise) then owned by any Credit Party in any
real property.
"RECORD DOCUMENT" means, with respect to any Leasehold Property,
(i) the lease evidencing such Leasehold Property or a memorandum thereof,
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executed and acknowledged by the owner of the affected real property, as
lessor, or (ii) if such Leasehold Property was acquired or subleased from the
holder of a Recorded Leasehold Interest, the applicable assignment or sublease
document, executed and acknowledged by such holder, in each case in form
sufficient to give such constructive notice upon recordation and otherwise in
form reasonably satisfactory to Collateral Agent.
"RECORDED LEASEHOLD INTEREST" means a Leasehold Property with
respect to which a Record Document has been recorded in all places necessary or
desirable, in Administrative Agent's reasonable judgment, to give constructive
notice of such Leasehold Property to third-party purchasers and encumbrancers
of the affected real property.
"REFINANCING COSTS" means reasonable costs and expenses incurred
by Company prior to the Effective Date in connection with the preparation,
execution and delivery of this Agreement and related documents.
"REFUNDED SWING LINE LOANS" as defined in Section 2.5(b)(iv).
"REGISTER" as defined in Section 2.8(b).
"REGULATION D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"RELATED AGREEMENTS" means, collectively, the Merger Agreement and
the Senior Subordinated Note Documents.
"RELATED FUND" means, with respect to any Lender that is an
investment fund, any other investment fund that invests in commercial loans and
that is managed or advised by the same investment advisor as such Lender or by
an Affiliate of such investment advisor.
"RELEASE" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of any Hazardous Material into the indoor or outdoor
environment (including the abandonment or disposal of any barrels, containers
or other closed receptacles containing any Hazardous Material), including the
migration of any Hazardous Material through the air, soil, surface water or
groundwater.
"REPLACEMENT LENDER" as defined in Section 2.24.
"REQUISITE CLASS LENDERS" means, at any time of determination,
(i) for the Class of Lenders having Incremental Term Loan Exposure, Lenders
holding more than 50% of the aggregate Incremental Term Loan Exposure of all
Lenders; (ii) for the Class of Lenders having Term Loan Exposure, Lenders
holding more than 50% of the aggregate Term Loan Exposure of all Lenders; and
(iii) for the Class of Lenders having Revolving Exposure, Lenders holding more
than 50% of the aggregate Revolving Exposure of all Lenders.
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"REQUISITE LENDERS" means one or more Lenders having or holding
Term Loan Exposure, Revolving Loan Exposure or Incremental Term Loan Exposure
and representing more than 50% of the sum of (i) the aggregate Term Loan
Exposure of all Lenders, (ii) the aggregate Revolving Exposure and (iii) the
aggregate Incremental Term Loan Exposure of all Lenders.
"RESTRICTED JUNIOR PAYMENT" means, in respect of any Person
(i) any dividend or other distribution, direct or indirect, on account of any
Capital Stock of such Person now or hereafter outstanding; (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any Capital Stock of such Person now or hereafter
outstanding; (iii) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares of any
Capital Stock of such Person now or hereafter outstanding; (iv) management or
similar fees payable to Sponsors or any of its Affiliates and (v) any payment
or prepayment of principal of, premium, if any, or interest on, or redemption,
purchase, retirement, defeasance (including in-substance or legal defeasance),
sinking fund or similar payment with respect to any Subordinated Indebtedness,
in each of cases (i) through (v) except a dividend, distribution, payment or
prepayment payable solely in Capital Stock of such Person.
"REVOLVING COMMITMENT" means the commitment of a Lender to make or
otherwise fund any Revolving Loan and to acquire participations in Letters of
Credit hereunder and "REVOLVING COMMITMENTS" means such commitments of all
Lenders in the aggregate. The amount of each Lender's Revolving Commitment, if
any, is set forth on Appendix A-3 or in the applicable Assignment Agreement,
subject to any adjustment or reduction pursuant to the terms and conditions
hereof. The aggregate amount of the Revolving Commitments as of the Closing
Date was, and as of the Effective Date will be $100,000,000.
"REVOLVING COMMITMENT PERIOD" means the period from the Closing
Date to but excluding the Revolving Commitment Termination Date.
"REVOLVING COMMITMENT TERMINATION DATE" means the earliest to
occur of (i) July 22, 2008, (ii) the date the Revolving Commitments are
permanently reduced to zero pursuant to Section 2.14(b) or 2.15, and (iii) the
date of the termination of the Revolving Commitments pursuant to Section 8.1.
"REVOLVING EXPOSURE" means, with respect to any Lender as of any
date of determination, (i) prior to the termination of the Revolving
Commitments, that Lender's Revolving Commitment; and (ii) after the termination
of the Revolving Commitments, the sum of (a) the aggregate outstanding
principal amount of the Revolving Loans of that Lender, (b) the aggregate
amount of all participations by that Lender in any outstanding Letters of
Credit or any unreimbursed drawing under any Letter of Credit, (c) in the case
33
of Swing Line Lender, the aggregate outstanding principal amount of all Swing
Line Loans (net of any participations therein by other Lenders), and (d) the
aggregate amount of all participations therein by that Lender in any
outstanding Swing Line Loans.
"REVOLVING LOAN" means a Loan made by a Lender to Company pursuant
to Section 2.3.
"REVOLVING LOAN NOTE" means a promissory note in the form of
Exhibit B-3, as it may be amended, supplemented or otherwise modified from time
to time.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw Hill Corporation.
"SECURED PARTIES" has the meaning assigned to that term in the
Pledge and Security Agreement.
"SECURITIES" means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time, and any successor statute.
"SELLERS" means Atlantic Equity Partners International II, L.P.,
J.P. Morgan Partners (SBIC), LLC, BPC Equity, LLC and certain members of
Company's management.
"SENIOR SUBORDINATED NOTE DOCUMENTS" means the Senior Subordinated
Note Indenture and the Senior Subordinated Notes, as each such document may be
amended, restated, supplemented or otherwise modified from time to time to the
extent permitted under Section 6.16.
"SENIOR SUBORDINATED NOTE INDENTURE" means the indenture pursuant
to which the Senior Subordinated Notes will be issued, in the form delivered to
the Agents and Lenders prior to the Closing Date, as any such indenture may
thereafter be amended, restated, supplemented or otherwise modified from time
to time to the extent permitted under Section 6.16.
"SENIOR SUBORDINATED NOTES" means the Senior Subordinated Notes of
Company in the aggregate principal amount not to exceed $440,000,000 at any
34
time outstanding (plus (i) any such notes issued as payment of interest on
Senior Subordinated Notes and (ii) any additional subordinated notes issued as
permitted by clause (ii) or (iii) of Section 6.1(c)) and issued pursuant to the
Senior Subordinated Note Indenture, with such changes thereto when executed as
are permitted under Section 6.16 and as such notes may thereafter be amended,
restated, supplemented or otherwise modified from time to time to the extent
permitted under Section 6.16.
"SOLVENCY CERTIFICATE" means a Solvency Certificate of the Chief
Financial Officer of Holdings substantially in the form of Exhibit G-2.
"SOLVENT" means, with respect to any Credit Party, that as of the
date of determination both (i) (a) the sum of such Credit Party's debt
(including contingent liabilities) does not exceed the present fair saleable
value of all of such Credit Party's assets; (b) such Credit Party's capital is
not unreasonably small in relation to its business or with respect to any
transaction then contemplated; and (c) such Person has not incurred and does
not intend to incur, or believe (nor should it reasonably believe) that it will
incur, debts beyond its ability to pay such debts as they become due (whether
at maturity or otherwise); and (ii) such Person is "solvent" within the meaning
given that term and similar terms under applicable laws relating to fraudulent
transfers and conveyances. For purposes of this definition, the amount of any
contingent liability at any time shall be computed as the amount that, in light
of all of the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability
(irrespective of whether such contingent liabilities meet the criteria for
accrual under Statement of Financial Accounting Standard No. 5).
"SPONSORS" means any of GS Capital Partners 2000, L.P., GS Capital
Partners 2000 Offshore, L.P., GS Capital Partners 2000 GmbH & Co., Beteiligungs
KG, GS Capital Partners 2000 Employee Fund, L.P., Stone Street Fund 2000, L.P.,
J.P. Morgan Partners (BHCA), L.P., J.P. Morgan Partners Global Investors, L.P.,
J.P. Morgan Partners Global Investors (Cayman), L.P., J.P. Morgan Partners
Global Investors (Cayman) II, L.P., J.P. Morgan Partners Global Investors A,
L.P. and other strategic investors acceptable to Syndication Agent.
"STOCKHOLDER AGREEMENTS" means (i) a stockholders agreement, dated
as of the Closing Date, among Holdings and the Sponsors and (ii) a stockholders
agreement, dated as of the Closing Date, among Holdings and certain employees
of Holdings and its Subsidiaries parties thereto.
"SUBJECT TRANSACTION" as defined in Section 6.8(d).
"SUBORDINATED INDEBTEDNESS" means the Senior Subordinated Notes
and any other Indebtedness that is subordinate in right of payment and all
other respects to the Obligations on subordination terms that are no less
favorable to the Agents or Lenders in any respect than the subordination and
related terms set forth in the Senior Subordinated Note Documents as in effect
on the date hereof.
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"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence
of any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and
policies thereof is at the time owned or controlled, directly or indirectly, by
that Person or one or more of the other Subsidiaries of that Person or a
combination thereof; provided, in determining the percentage of ownership
interests of any Person controlled by another Person, no ownership interest in
the nature of a "qualifying share" of the former Person shall be deemed to be
outstanding.
"SURVIVING CAPITAL LEASES" mean, as of the Effective Date, the
Capital Leases of Company in an aggregate amount not to exceed $23,500,000 as
designated in Schedule 6.1(g).
"SURVIVING INDEBTEDNESS" means the Surviving Capital Leases, the
Surviving IRBs, and any of the 2004 Notes and the 2006 Notes, in each case,
that remain outstanding as of the Closing Date, as disclosed in and subject to
the terms and conditions of Schedule 6.1(g).
"SURVIVING IRBS" means the Nevada Industrial Revenue Bonds (the
"IRBS") of Company that survive the consummation of the Merger in an aggregate
amount not to exceed $3,000,000 as designated in Schedule 6.1(g).
"SWING LINE LENDER" as defined in the preamble.
"SWING LINE LOAN" means a Loan made by Swing Line Lender to
Company pursuant to Section 2.3.
"SWING LINE NOTE" means a promissory note in the form of
Exhibit B-4, as it may be amended, supplemented or otherwise modified from time
to time.
"SWING LINE SUBLIMIT" means the lesser of (i) $10,000,000, and
(ii) the aggregate unused amount of Revolving Commitments then in effect.
"SYNDICATION AGENT" as defined in the preamble.
"TAX" means any present or future tax, levy, impost, duty,
assessment, charge, fee, deduction or withholding of any nature and whatever
called, by any Governmental Authority, on whomsoever and wherever imposed,
levied, collected, withheld or assessed; provided, "Tax on the overall net
income" of a Person shall be construed as a reference to a tax imposed by the
jurisdiction in which that Person is organized or in which that Person's
applicable principal office (and/or, in the case of a Lender, its lending
office) is located or in which that Person (and/or, in the case of a Lender,
its lending office) is deemed to be doing business on all or part of the net
36
income, profits or gains (whether worldwide, or only insofar as such income,
profits or gains are considered to arise in or to relate to a particular
jurisdiction, or otherwise) of that Person (and/or, in the case of a Lender,
its applicable lending office).
"TERM LOAN" means a Loan made by a Lender to Company pursuant to
Section 2.1.
"TERM LOAN COMMITMENT" means the commitment of a Lender to make or
otherwise fund any Term Loan hereunder, and "TERM LOAN COMMITMENTS" means such
commitments of all Lenders in the aggregate. The amount of each Lender's Term
Loan Commitment, if any, is set forth in Appendix A-1. The aggregate Term Loan
Commitments shall equal $365,525,000.
"TERM LOAN EXPOSURE" means, with respect to any Lender, as of any
date of determination, the outstanding principal amount of the Term Loan of
such Lender; provided, at any time prior to the making of the Term Loan, the
Term Loan Exposure of any Lender shall be equal to such Lender's Term Loan
Commitment.
"TERM LOAN INSTALLMENT" as defined in Section 2.13(a).
"TERM LOAN INSTALLMENT DATE" as defined in Section 2.13(a).
"TERM LOAN LENDER" means each financial institution listed on
Appendix A-1.
"TERM LOAN MATURITY DATE" means the earlier of (i) the July 22,
2010 and (ii) the date that all Term Loans shall become due and payable in full
hereunder, whether by acceleration or otherwise.
"TERM LOAN NOTE" means a promissory note in the form of
Exhibit B-1, as it may be amended, supplemented or otherwise modified from time
to time.
"TERMINATED LENDER" as defined in Section 2.24.
"TOTAL UTILIZATION OF REVOLVING COMMITMENTS" means, as at any date
of determination, the sum of (i) the aggregate principal amount of all
outstanding Revolving Loans (other than Revolving Loans made for the purpose of
repaying any Refunded Swing Line Loans or reimbursing Issuing Bank for any
amount drawn under any Letter of Credit, but not yet so applied), (ii) the
aggregate principal amount of all outstanding Swing Line Loans and (iii) the
Letter of Credit Usage.
"TRANSACTION COSTS" means the fees, costs and expenses payable by
Holdings, Company or any of Company's Subsidiaries on or before the Closing
Date in connection with the transactions contemplated by the Credit Documents
and the Related Agreements.
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"TYPE OF LOAN" means (i) with respect to either Term Loans or
Revolving Loans, a Base Rate Loan or a Eurodollar Rate Loan, and (ii) with
respect to Swing Line Loans, a Base Rate Loan.
"UCC" means the Uniform Commercial Code (or any similar or
equivalent legislation) as in effect in any applicable jurisdiction.
"UNADJUSTED EURODOLLAR RATE COMPONENT" means that component of the
interest costs to Company in respect of a Eurodollar Rate Loan that is based
upon the rate obtained pursuant to clause (i) of the definition of Adjusted
Eurodollar Rate.
"UNCOMPLETED ACQUISITION COSTS" means, for the purpose of the
calculation set forth in Section 6.8(d)(ii), aggregate out-of-pocket fees,
costs and expenses incurred by Company in connection with one or more proposed,
but uncompleted Permitted Acquisitions.
"US LENDER" means each Lender that is a United States Person (as
such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for
U.S. federal income tax purposes.
"VOTING STOCK" of a Person means all classes of Capital Stock or
other interests of such Person then outstanding which are normally entitled
(without regard to the occurrence of any contingency) to vote in the election
of directors, managers or trustees thereof.
"WHOLLY-OWNED" means, in respect of any Subsidiary of any Person,
that all Capital Stock of such Subsidiary (other than Capital Stock in the
nature of directors' qualifying shares required by applicable law) is owned
beneficially and as of record by such Person or one more Wholly-Owned
Subsidiaries of such Person.
1.2. ACCOUNTING TERMS. Except as otherwise expressly provided herein,
all accounting terms not otherwise defined herein shall have the meanings
assigned to them in conformity with GAAP as in effect from time to time;
provided, if Company notifies Administrative Agent that Company requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof to the
operation of such provisions, regardless of whether any such notice is given
before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP in effect and applied
immediately before such change shall have become effective until such notice
shall have been withdrawn or such provision amended in accordance herewith.
Subject to the foregoing, calculations in connection with the definitions,
covenants and other provisions hereof shall utilize accounting principles and
policies in conformity with those used to prepare the Historical Financial
Statements.
1.3. INTERPRETATION, ETC. Any of the terms defined herein may, unless
the context otherwise requires, be used in the singular or the plural,
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depending on the reference. References herein to any Section, Appendix,
Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an
Exhibit, as the case may be, hereof unless otherwise specifically provided.
The use herein of the word "include" or "including", when following any general
statement, term or matter, shall not be construed to limit such statement, term
or matter to the specific items or matters set forth immediately following such
word or to similar items or matters, whether or not nonlimiting language (such
as "without limitation" or "but not limited to" or words of similar import) is
used with reference thereto, but rather shall be deemed to refer to all other
items or matters that fall within the broadest possible scope of such general
statement, term or matter. Except as otherwise specifically provided, all
reference herein to any Person shall mean such Person and its permitted
successors and assigns and all references herein to any document, instrument or
agreement shall mean such document, instrument or agreement as amended,
supplemented or modified from time to time, to the extent not prohibited by
this Agreement.
SECTION 2. LOANS AND LETTERS OF CREDIT
2.1. TERM LOANS.
(a) Loan Commitments. Subject to the terms and conditions
hereof, each Lender severally agrees to make, on the Effective Date, a Term
Loan to Company in an amount equal to such Lender's Term Loan Commitment.
Company may make only one borrowing under each Lender's Term Loan Commitment
which shall be on the Effective Date. Any amount borrowed under this Section
2.1(a) and subsequently repaid or prepaid may not be reborrowed. Subject to
Sections 2.14(a) and 2.15, all amounts owed hereunder with respect to the Term
Loans shall be paid in full no later than the Term Loan Maturity Date. Each
Lender's Term Loan Commitment shall terminate immediately and without further
action on the Effective Date after giving effect to the funding of such
Lender's Term Loan Commitment on such date.
(b) Borrowing Mechanics for Term Loans.
(i) Company shall deliver to Administrative Agent a fully
executed Funding Notice no later than 11:00 a.m. (New York City time) on
(A) in the case of Base Rate Loans, the day prior to the Effective Date
and (B) in the case of Eurodollar Loans, the third day prior to the
Effective Date. Promptly upon receipt by Administrative Agent of such
certificate, Administrative Agent shall notify each Lender of the
proposed borrowing.
(ii) Each Lender shall make its Term Loan available to
Administrative Agent not later than 12:00 p.m. (New York City time) on
the Effective Date, by wire transfer of same day funds in Dollars, at
Administrative Agent's Principal Office. Upon satisfaction or waiver of
the conditions precedent specified herein, Administrative Agent shall
make the proceeds of the Term Loans available to Company on the
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Effective Date by causing an amount of same day funds in Dollars equal
to the proceeds of all such Loans received by Administrative Agent from
Lenders to be credited to the account of Company at Administrative
Agent's Principal Office or to such other account as may be designated
in writing to Administrative Agent by Company.
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2.2. INCREMENTAL TERM LOANS. Company and any one or more Lenders or
New Lenders may from time to time agree that such Lenders shall make one or
more Incremental Term Loans, which shall constitute Loans for all purposes of
this Agreement, by executing and delivering to the Administrative Agent an
Incremental Term Loan Notice, substantially in the form of Exhibit A-4, not
less than 10 Business Days prior to the Applicable Incremental Term Loan
Closing Date, specifying (i) the principal amount of such Incremental Term
Loan, (ii) the applicable Incremental Term Loan Closing Date, (iii) the
applicable Incremental Term Loan Maturity Date, (iv) the amortization schedule
for such Incremental Term Loan and (v) the Applicable Margin for such
Incremental Term Loan; provided that, (A) after giving pro forma effect to the
making of such Incremental Term Loan and any Permitted Acquisition to be
financed with the proceeds thereof, the Leverage Ratio shall be less than or
equal to 3.00:1.00 (calculated in accordance with Section 6.8(d)(ii) and in
such a manner as to exclude from Consolidated Total Debt any Indebtedness which
is not secured by a Lien or which by its terms ranks junior in right of payment
to that of the Lenders under this Agreement), (B) no Default or Event of
Default has occurred and is continuing or would result after giving effect to
the making of such Incremental Term Loan or the application of the proceeds
therefrom, (C) the calculation of interest in respect of such Incremental Term
Loan as set forth in the applicable Incremental Term Loan Notice is based on
the Base Rate or the Eurodollar Rate as defined substantially in this Agreement
and the maximum Applicable Margin in respect of such Incremental Term Loan
shall not be greater than 0.50% above the Applicable Margin then in effect, or
which could be in effect under any set of circumstances thereafter, for the
Term Loan, (D) such Incremental Term Loan shall otherwise be on the same terms
and conditions as those generally applicable to the Loans made under this
Agreement, (E) the aggregate principal amount outstanding of Incremental Term
Loans pursuant to this Section 2.2 after giving effect to such Incremental Term
Loan shall not exceed $150,000,000, (F) each borrowing of an Incremental Term
Loan pursuant to this Section 2.2 shall be in a minimum amount of (I)
$25,000,000 or (II) the difference of $150,000,000 and the sum of the aggregate
principal amount of all Incremental Term Loans then outstanding, (G) the
average weighted maturity of all Incremental Term Loans outstanding, after
giving effect to such Incremental Term Loan, shall not be less than the
remaining term of the Term Loan (H) any Incremental Term Loan Maturity Date
shall be on or after the Term Loan Maturity Date and (I) the Chief Financial
Officer of each of Holdings and Company shall have executed and delivered to
the Administrative Agent on the Incremental Term Loan Closing Date an officer's
certificate certifying compliance with the requirements of this Section 2.2.
2.3. REVOLVING LOANS.
(a) Revolving Commitments. During the Revolving Commitment
Period, subject to the terms and conditions hereof, each Lender severally
agrees to make Revolving Loans to Company in the aggregate amount up to but not
exceeding such Lender's Revolving Commitment; provided, after giving effect to
the making of any Revolving Loans in no event shall the Total Utilization of
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Revolving Commitments exceed the Revolving Commitments then in effect. Amounts
borrowed pursuant to this Section 2.3 may be repaid and reborrowed during the
Revolving Commitment Period. Each Lender's Revolving Commitment shall expire
on the Revolving Commitment Termination Date and all Revolving Loans and all
other amounts owed hereunder with respect to the Revolving Loans and the
Revolving Commitments shall be paid in full no later than such date.
(b) Borrowing Mechanics for Revolving Loans.
(i) Except pursuant to Section 2.4(d)and 2.5(b)(iv),
Revolving Loans that are Base Rate Loans shall be made in an aggregate
minimum amount of $1,000,000 and integral multiples of $1,000,000 in
excess of that amount, and Revolving Loans that are Eurodollar Rate
Loans shall be in an aggregate minimum amount of $5,000,000 and integral
multiples of $1,000,000 in excess of that amount.
(ii) Whenever Company desires that Lenders make Revolving
Loans,Company shall deliver (subject to Section 3.2(b))to Administrative
Agent a fully executed and delivered Funding Notice no later than 11:00
a.m. (New York City time) at least three Business Days in advance of the
proposed Credit Date in the case of a Eurodollar Rate Loan, and at least
one Business Day in advance of the proposed Credit Date in the case of a
Revolving Loan that is a Base Rate Loan. Except as otherwise provided
herein, a Funding Notice for a Revolving Loan that is a Eurodollar Rate
Loan shall be irrevocable on and after the related Interest Rate
Determination Date, and Company shall be bound to make a borrowing in
accordance therewith.
(iii) Notice of receipt of each Funding Notice in respect
of Revolving Loans, together with the amount of each Lender's Pro Rata
Share thereof, if any, together with the applicable interest rate, shall
be provided by Administrative Agent to each applicable Lender by
telefacsimile with reasonable promptness, but (provided Administrative
Agent shall have received such notice by 11:00 a.m. (New York City
time)) not later than 3:00 p.m. (New York City time) on the same day as
Administrative Agent's receipt of such Funding Notice from Company.
(iv) Each Lender shall make the amount of its Revolving
Loan available to Administrative Agent not later than 12:00 p.m. (New
York City time) on the applicable Credit Date by wire transfer of same
day funds in Dollars, at Administrative Agent's Principal Office.
Except as provided herein, upon satisfaction or waiver of the conditions
precedent specified herein, Administrative Agent shall make the proceeds
of such Revolving Loans available to Company on the applicable Credit
Date by causing an amount of same day funds in Dollars equal to the
proceeds of all such Revolving Loans received by Administrative Agent
from Lenders to be credited to an account designated in writing to
Administrative Agent by Company.
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2.4. ISSUANCE OF LETTERS OF CREDIT AND PURCHASE OF PARTICIPATIONS
THEREIN.
(a) General. Subject to the terms and conditions set forth
herein, Company (or any other Credit Party, so long as Company is a co-obligor
or co-applicant in respect of each Letter of Credit issued for the account of
such other Credit Party on terms reasonably acceptable to Administrative Agent
and Issuing Bank) may request the issuance of Letters of Credit for its own
account, such Letter of Credit to be in a form reasonably acceptable to
Administrative Agent and Issuing Bank, at any time and from time to time during
the Revolving Commitment Period. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by Company to, or
entered into by Company with, Issuing Bank relating to any Letter of Credit,
the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), Company shall hand
deliver or telecopy (or transmit by electronic communication, if arrangements
for doing so have been approved by Issuing Bank) to Issuing Bank and
Administrative Agent (reasonably, but in any case at least two Business Days,
in advance of the requested date of issuance, amendment, renewal or extension)
a fully executed Issuance Notice requesting the issuance of a Letter of Credit,
or identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which shall
be a Business Day), the date on which such Letter of Credit is to expire (which
shall comply with paragraph (c) of this Section 2.4), the amount of such Letter
of Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit. If requested by Issuing Bank, Company also shall submit a
letter of credit application on Issuing Bank's standard form in connection with
any request for a Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit Company shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the Letter of Credit Usage shall not exceed the Letter of Credit
Sublimit and (ii) the Total Utilization of Revolving Commitments shall not
exceed the Revolving Commitments then in effect. All Letters of Credit shall
be denominated in Dollars and the stated amount of each Letter of Credit shall
not be less than $100,000 or such lesser amount as is acceptable to Issuing
Bank in its sole discretion.
(c) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year after
43
the date of the issuance of such Letter of Credit (or, in the case of any
renewal or extension thereof, one year after such renewal or extension) and
(ii) the date that is five Business Days prior to the Revolving Commitment
Termination Date.
(d) Participations. By the issuance, renewal or extension of a
Letter of Credit (or an amendment to a Letter of Credit increasing the amount
thereof) and without any further action on the part of Issuing Bank or the
Lenders, Issuing Bank hereby grants to each Lender, and each Lender hereby
acquires from Issuing Bank, a participation in such Letter of Credit equal to
such Lender's Pro Rata Share (with respect to the Revolving Commitments) of the
aggregate amount available to be drawn under such Letter of Credit. In
consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to Administrative Agent, for the
account of Issuing Bank, such Lender's Pro Rata Share (with respect to the
Revolving Commitments) of each Letter of Credit Disbursement made by Issuing
Bank and not reimbursed by Company on the date due as provided in paragraph (e)
of this Section, or of any reimbursement payment required to be refunded to
Company for any reason. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If Issuing Bank shall make any Letter of
Credit Disbursement in respect of a Letter of Credit, Company shall reimburse
such Letter of Credit Disbursement by paying to Administrative Agent an amount
equal to such Letter of Credit Disbursement not later than 2:30 p.m., New York
City time, on the date that such Letter of Credit Disbursement is made, if
Company shall have received notice of such Letter of Credit Disbursement prior
to 10:00 a.m., New York City time, on such date, or, if such notice has not
been received by Company prior to such time on such date, then not later than
2:30 p.m., New York City time, on (i) the Business Day that Company receives
such notice, if such notice is received prior to 10:00 a.m., New York City
time, on the day of receipt, or (ii) the Business Day immediately following the
day that Company receives such notice, if such notice is not received prior to
such time on the day of receipt; provided, Company may, subject to the
conditions to borrowing set forth herein, request in accordance with Section
2.3 or Section 2.5 that such payment be financed with a Revolving Loan that is
a Base Rate Loan or a Swing Line Loan in an equivalent amount and, to the
extent so financed, Company's obligation to make such payment shall be
discharged and replaced by the resulting Revolving Loan or Swing Line Loan. If
Company fails to make such payment when due, Administrative Agent shall notify
each Lender of the applicable Letter of Credit Disbursement, the payment then
due from Company in respect thereof and such Lender's Pro Rata Share thereof.
Following receipt of such notice, each Lender shall pay to Administrative Agent
its Pro Rata Share of the payment then due from Company, in the same manner as
provided in Section 2.5 with respect to Loans made by such Lender (and Section
2.5 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
44
and Administrative Agent shall promptly pay to Issuing Bank the amounts so
received by it from the Lenders. Promptly following receipt by Administrative
Agent of any payment from Company pursuant to this paragraph, Administrative
Agent shall distribute such payment to Issuing Bank or, to the extent that
Lenders have made payments pursuant to this paragraph to reimburse Issuing
Bank, then to such Lenders and Issuing Bank as their interests may appear. Any
payment made by a Lender pursuant to this paragraph to reimburse Issuing Bank
for any Letter of Credit Disbursement (other than the funding of Revolving
Loans as contemplated above) shall not constitute a Loan and shall not relieve
Company of its obligation to reimburse such Letter of Credit Disbursement.
(f) Obligations Absolute. The Company's obligation to
reimburse Letter of Credit Disbursements as provided in paragraph (e) of this
Section shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement under any and
all circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit or this Agreement, or any term or
provision therein, (ii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment by
Issuing Bank under a Letter of Credit against presentation of a draft or other
document that does not comply with the terms of such Letter of Credit, or (iv)
any other event or circumstance whatsoever, whether or not similar to any of
the foregoing, that might, but for the provisions of this Section, constitute a
legal or equitable discharge of, or provide a right of setoff against,
Company's obligations hereunder. Neither Administrative Agent, the Lenders nor
Issuing Bank, nor any of their Affiliates, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to
any Letter of Credit (including any document required to make a drawing
thereunder), any error in interpretation of technical terms or any consequence
arising from causes beyond the reasonable control of Issuing Bank; provided,
the foregoing shall not be construed to excuse Issuing Bank from liability to
Company to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by Company to the extent
permitted by applicable law) suffered by Company that are caused by Issuing
Bank's failure to exercise care when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof.
The parties hereto expressly agree that, in the absence of gross negligence or
willful misconduct on the part of Issuing Bank (as finally determined by a
court of competent jurisdiction), Issuing Bank shall be deemed to have
exercised care in each such determination. In furtherance of the foregoing and
without limiting the generality thereof, the parties agree that, with respect
to documents presented which appear on their face to be in substantial
compliance with the terms of a Letter of Credit, Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
45
(g) Disbursement Procedures. Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. Issuing Bank shall promptly
notify Administrative Agent and Company by telephone (confirmed by telecopy) of
such demand for payment and whether Issuing Bank has made or will make a Letter
of Credit Disbursement thereunder; provided, any failure to give or delay in
giving such notice shall not relieve Company of its obligation to reimburse
Issuing Bank and the Lenders with respect to any such Letter of Credit
Disbursement.
(h) Interim Interest. If Issuing Bank shall make any Letter of
Credit Disbursement, then, unless Company shall reimburse such Letter of Credit
Disbursement in full on the date such Letter of Credit Disbursement is made,
the unpaid amount thereof shall bear interest, for each day from and including
the date such Letter of Credit Disbursement is made to but excluding the date
that Company reimburses such Letter of Credit Disbursement, at the rate per
annum then applicable to Revolving Loans that are Base Rate Loans; provided, if
Company fails to reimburse such Letter of Credit Disbursement when due pursuant
to paragraph (e) of this Section, then such unpaid amount shall bear interest
at a rate which is 2% per annum in excess of the rate of interest otherwise
applicable to Revolving Loans that are Base Rate Loans. Interest accrued
pursuant to this paragraph shall be for the account of Issuing Bank, except
that interest accrued on and after the date of payment by any Lender pursuant
to paragraph (e) of this Section to reimburse Issuing Bank shall be for the
account of such Lender to the extent of such payment.
(i) Replacement of Issuing Bank; Additional Issuing Banks.
(i) Issuing Bank may be replaced at any time by written agreement among
Company, Administrative Agent, the replaced Issuing Bank and the successor
Issuing Bank. Administrative Agent shall notify the Lenders of any such
replacement of Issuing Bank. At the time any such replacement shall become
effective, Company shall pay all unpaid fees accrued for the account of the
replaced Issuing Bank. From and after the effective date of any such
replacement, (A) the successor Issuing Bank shall have all the rights and
obligations of Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (B) references herein to the term "Issuing
Bank" shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall
require. After the replacement of an Issuing Bank hereunder, the replaced
Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement with respect to
Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit. A Revolving Lender may become
an Issuing Bank pursuant to a written agreement among Company, Administrative
Agent and such Revolving Lender (an "ADDITIONAL ISSUING BANK"), but only if the
Issuing Bank has an insufficiently high credit rating for the issuance of the
46
requested Letter of Credit, whereupon Administrative Agent shall notify other
Revolving Lenders of such Additional Issuing Bank. Upon becoming an Additional
Issuing Bank, all references to "Issuing Bank" herein shall be deemed to
include such Additional Issuing Bank for the purposes of such Letters of
Credit.
(j) Cash Collateralization. If any Event of Default shall
occur and be continuing, on the Business Day that Company receives notice from
Administrative Agent or the Requisite Class Lenders (or, if the maturity of the
Loans has been accelerated, Issuing Bank) demanding the deposit of cash
collateral pursuant to this paragraph, Company shall deposit in an account with
Administrative Agent, in the name of Administrative Agent and for the benefit
of the Lenders, an amount in cash equal to the Letter of Credit Exposure as of
such date plus any accrued and unpaid interest thereon; provided, the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to Company described in Section 8.1(f) or 8.1(g). Such deposit shall be
held by Administrative Agent as collateral for the payment and performance of
the obligations of Company under this Agreement. Administrative Agent shall
have exclusive dominion and control,including the exclusive right of withdrawal,
over such account. Other than any interest earned on the investment of such
deposits, which investments shall be made at the option and sole discretion of
Administrative Agent and at Company's risk and expense, such deposits shall not
bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by
Administrative Agent to reimburse Issuing Bank for Letter of Credit
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
Company at such time or, if the maturity of the Loans has been accelerated (but
subject to the consent of Issuing Bank), be applied to satisfy other
obligations of Company under this Agreement. If Company is required to provide
an amount of cash collateral hereunder as a result of the occurrence of an
Event of Default, such amount (to the extent not applied as aforesaid) shall be
promptly returned to Company after all Events of Default have been cured or
waived.
2.5. SWING LINE LOANS.
(a) Swing Line Loans Commitment. During the Revolving
Commitment Period, subject to the terms and conditions hereof, Swing Line
Lender hereby agrees to make Swing Line Loans to Company in the aggregate
amount up to but not exceeding the Swing Line Sublimit; provided, after giving
effect to the making of any Swing Line Loan, in no event shall the Total
Utilization of Revolving Commitments exceed the Revolving Commitments then in
effect. Amounts borrowed pursuant to this Section 2.5 may be repaid and
reborrowed during the Revolving Commitment Period. Swing Line Lender's
Revolving Commitment shall expire on the Revolving Commitment Termination Date
and Company shall repay the then unpaid principal amount of each Swing Line
Loan and any accrued and unpaid interest thereon as of the earlier of (i) the
Revolving Commitment Termination Date, (ii) any date on which Company is
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borrowing Revolving Loans and (iii) the first date at least two Business Days
after such Swing Line Loan is made that is the 15th or last day of any calendar
month.
(b) Borrowing Mechanics for Swing Line Loans.
(i) Swing Line Loans shall be made in an aggregate
minimum amount of $1,000,000 and integral multiples of $100,000 in
excess of that amount.
(ii) Whenever Company desires that Swing Line Lender make
a Swing Line Loan, Company shall deliver to Swing Line Lender, with a
copy to Agents (subject to Section 3.2(b)) a Funding Notice no later
than 12:00 p.m. (New York City time) on the proposed Credit Date.
(iii) Swing Line Lender shall make the amount of its Swing
Line Loan available to Administrative Agent not later than 2:00 p.m.
(New York City time) on the applicable Credit Date by wire transfer of
same day funds in Dollars, at Administrative Agent's Principal Office.
Except as provided herein, upon satisfaction or waiver of the conditions
precedent specified herein, Administrative Agent shall make the proceeds
of such Swing Line Loans available to Company on the applicable Credit
Date by causing an amount of same day funds in Dollars equal to the
proceeds of all such Swing Line Loans received by Administrative Agent
from Swing Line Lender to be credited to an account designated in
writing to Administrative Agent by Company.
(iv) With respect to any Swing Line Loans which have not
been prepaid by Company pursuant to Section 2.14 or Section 2.15, Swing
Line Lender may at any time in its sole and absolute discretion, deliver
to Administrative Agent (with a copy to Company), no later than 11:00
a.m. (New York City time) at least one Business Day in advance of the
proposed Credit Date, a notice (which shall be deemed to be a Funding
Notice given by Company) requesting that each Lender holding a Revolving
Commitment make Revolving Loans that are Base Rate Loans to Company on
such Credit Date in an amount equal to the amount of such Swing Line
Loans (the "REFUNDED SWING LINE LOANS") outstanding on the date such
notice is given which Swing Line Lender requests Lenders to prepay.
Anything contained in this Agreement to the contrary notwithstanding,
(1) the proceeds of such Revolving Loans made by the Lenders other than
Swing Line Lender shall be immediately delivered by Administrative Agent
to Swing Line Lender (and not to Company) and applied to repay a
corresponding portion of the Refunded Swing Line Loans and (2) on the
day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of
the Refunded Swing Line Loans shall be deemed to be paid with the
proceeds of a Revolving Loan made by Swing Line Lender to Company, and
such portion of the Swing Line Loans deemed to be so paid shall no
longer be outstanding as Swing Line Loans and shall no longer be due
under the Swing Line Note of Swing Line Lender but shall instead
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constitute part of Swing Line Lender's outstanding Revolving Loans to
Company and shall be due under the Revolving Loan Note issued by Company
to Swing Line Lender. Company hereby authorizes Administrative Agent
and Swing Line Lender to charge Company's accounts with Administrative
Agent and Swing Line Lender (up to the amount available in each such
account) in order to immediately pay Swing Line Lender the amount of the
Refunded Swing Line Loans to the extent the proceeds of such Revolving
Loans made by Lenders, including the Revolving Loan deemed to be made by
Swing Line Lender, are not sufficient to repay in full the Refunded
Swing Line Loans. If any portion of any such amount paid (or deemed to
be paid) to Swing Line Lender should be recovered by or on behalf of
Company from Swing Line Lender in bankruptcy, by assignment for the
benefit of creditors or otherwise, the loss of the amount so recovered
shall be ratably shared among all the Revolving Lenders.
(v) If for any reason Revolving Loans are not made
pursuant to Section 2.5(b)(iv) in an amount sufficient to repay any
amounts owed to Swing Line Lender in respect of any outstanding Swing
Line Loans on or before the third Business Day after demand for payment
thereof by Swing Line Lender, each Lender holding a Revolving Commitment
shall be deemed to, and hereby agrees to, have purchased a participation
in such outstanding Swing Line Loans, and in an amount equal to its Pro
Rata Share of the applicable unpaid amount together with accrued
interest thereon. Upon one Business Day's notice from Swing Line
Lender, each Lender holding a Revolving Commitment shall deliver to
Swing Line Lender an amount equal to its respective participation in the
applicable unpaid amount in same day funds at the Principal Office of
Swing Line Lender. In order to evidence such participation each Lender
holding a Revolving Commitment agrees to enter into a participation
agreement at the request of Swing Line Lender in form and substance
reasonably satisfactory to Swing Line Lender. In the event any Lender
holding a Revolving Commitment fails to make available to Swing Line
Lender the amount of such Lender's participation as provided in this
paragraph, Swing Line Lender shall be entitled to recover such amount on
demand from such Lender together with interest thereon for three
Business Days at the rate customarily used by Swing Line Lender for the
correction of errors among banks and thereafter at the Base Rate, as
applicable.
(vi) Notwithstanding anything contained herein to the
contrary, (1) each Lender's obligation to make Revolving Loans for the
purpose of repaying any Refunded Swing Line Loans pursuant to the second
preceding paragraph and each Lender's obligation to purchase a
participation in any unpaid Swing Line Loans pursuant to the immediately
preceding paragraph shall be absolute and unconditional and shall not be
affected by any circumstance, including without limitation (A) any
set-off, counterclaim, recoupment, defense or other right which such
Lender may have against Swing Line Lender, any Credit Party or any other
Person for any reason whatsoever; (B) the occurrence or continuation of
a Default or Event of Default; (C) any adverse change in the business,
49
operations, properties, assets, condition (financial or otherwise) or
prospects of any Credit Party; (D) any breach of this Agreement or any
other Credit Document by any party thereto; or (E) any other
circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing; and (2) Swing Line Lender shall not be obligated
to make any Swing Line Loans (A) if it has elected not to do so after
the occurrence and during the continuation of a Default or Event of
Default or (B) at a time when a Funding Default exists unless Swing Line
Lender has entered into arrangements satisfactory to it and Company to
eliminate Swing Line Lender's risk with respect to the Defaulting
Lender's participation in such Swing Ling Loan, including by cash
collateralizing such Defaulting Lender's Pro Rata Share of the
outstanding Swing Line Loans.
2.6. PRO RATA SHARES; AVAILABILITY OF FUNDS.
(a) Pro Rata Shares. All Loans shall be made, and all
participations purchased, by Lenders simultaneously and proportionately to
their respective Pro Rata Shares, it being understood that no Lender shall be
responsible for any default by any other Lender in such other Lender's
obligation to make a Loan requested hereunder or purchase a participation
required hereby nor shall any Commitment of any Lender be increased or
decreased as a result of a default by any other Lender in such other Lender's
obligation to make a Loan requested hereunder or purchase a participation
required hereby.
(b) Availability of Funds. Unless Administrative Agent shall
have been notified by any Lender prior to the applicable Credit Date that such
Lender does not intend to make available to Administrative Agent the amount of
such Lender's Loan requested on such Credit Date, Administrative Agent may
assume that such Lender has made such amount available to Administrative Agent
on such Credit Date and Administrative Agent may, in its sole discretion, but
shall not be obligated to, make available to Company a corresponding amount on
such Credit Date. If such corresponding amount is not in fact made available
to Administrative Agent by such Lender, Administrative Agent shall be entitled
to recover such corresponding amount on demand from such Lender together with
interest thereon, for each day from such Credit Date until the date such amount
is paid to Administrative Agent, at the customary rate set by Administrative
Agent for the correction of errors among banks for three Business Days and
thereafter at the Base Rate. If such Lender does not pay such corresponding
amount forthwith upon Administrative Agent's demand therefor, Administrative
Agent shall promptly notify Company and Company shall immediately pay such
corresponding amount to Administrative Agent together with interest thereon,
for each day from such Credit Date until the date such amount is paid to
Administrative Agent, at the rate payable hereunder for Base Rate Loans for
such Class of Loans. Nothing in this Section 2.6(b) shall be deemed to relieve
any Lender from its obligation to fulfill its Term Loan Commitment, its
Revolving Commitment or its obligation to purchase participations in Letters of
Credit pursuant to Section 2.4(d) hereunder or to prejudice any rights that
Company may have against any Lender as a result of any default by such
Lender hereunder.
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2.7. USE OF PROCEEDS. The proceeds of the Term Loans made on the
Effective Date shall be applied by Company on the Effective Date to prepay Term
Loans and Delayed Draw Loans (as defined in the Existing Agreement) outstanding
under the Existing Agreement and, after prepayment of such Term Loans and
Delayed Draw Loans in full, otherwise for working capital and general corporate
purposes of the Company and its Subsidiaries. The proceeds of the Revolving
Loans, Swing Line Loans and Letters of Credit made after the Effective Date
shall be applied by Company for Permitted Acquisition Expenses working capital
and general corporate purposes of Company and its Subsidiaries; provided,
however, in no event will the proceeds of Revolving Loans be used for the
purposes of prepaying Loans as permitted under Section 2.14 hereof. The
proceeds of any Incremental Term Loan shall be used as set forth in the
applicable Incremental Term Loan Notice or, where and so provided, for working
capital and general corporate purposes of Company and its Subsidiaries. No
portion of the proceeds of any Credit Extension shall be used in any manner
that causes or might cause such Credit Extension or the application of such
proceeds to violate Regulation T, Regulation U or Regulation X of the Board of
Governors of the Federal Reserve System or any other regulation thereof or to
violate the Exchange Act.
2.8. EVIDENCE OF DEBT; REGISTER; LENDERS' BOOKS AND RECORDS; NOTES.
(a) Lenders' Evidence of Debt. Each Lender shall maintain on
its internal records an account or accounts evidencing the Indebtedness of
Company to such Lender, including the amounts of the Loans made by it and each
repayment and prepayment in respect thereof. Any such recordation shall be
conclusive and binding on Company, absent manifest error; provided, failure to
make any such recordation, or any error in such recordation, shall not affect
any Lender's Commitments or Company's Obligations in respect of any applicable
Loans; and provided further, in the event of any inconsistency between the
Register and any Lender's records, the recordations in the Register shall
govern.
(b) Register. Administrative Agent, acting on behalf of
Company, shall maintain at its Principal Office a register for the recordation
of the names and addresses of Lenders and the Commitments and Loans of each
Lender from time to time (the "REGISTER"). The Register shall be available for
inspection by Company or any Lender at any reasonable time and from time to
time upon reasonable prior request. Administrative Agent shall record in the
Register the Commitments and the Loans, and each repayment or prepayment in
respect of the principal amount of the Loans, and any such recordation shall be
conclusive and binding on Company and each Lender, absent manifest error;
provided, failure to make any such recordation, or any error in such
recordation, shall not affect any Lender's Commitments or Company's Obligations
in respect of any Loan. Company hereby designates GSCP to serve as Company's
agent solely for purposes of maintaining the Register as provided in this
Section 2.8, and Company hereby agrees that, to the extent GSCP serves in such
capacity, GSCP and its officers, directors, employees, agents and affiliates
shall constitute "Indemnitees."
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(c) Notes. If so requested by any Lender by written notice to
Company (with a copy to Administrative Agent) at least two Business Days prior
to the Effective Date, or at any time thereafter, Company shall execute and
deliver to such Lender (and/or, if applicable and if so specified in such
notice, to any Person who is an assignee of such Lender pursuant to Section
10.6)on the Effective Date (or, if such notice is delivered after the Effective
Date, promptly after Company's receipt of such notice) a Note or Notes to
evidence such Lender's Term Loan, Swing Line Loan, Incremental Term Loan or
Revolving Loan, as the case may be.
2.9. INTEREST ON LOANS.
(a) Except as otherwise set forth herein, each Class of Loan
shall bear interest on the unpaid principal amount thereof from the date made
through repayment (whether by acceleration or otherwise) thereof as follows:
(i) in the case of Revolving Loans:
(1) if a Base Rate Loan, at the Base Rate
plus the Applicable Margin; or
(2) if a Eurodollar Rate Loan, at the
Adjusted Eurodollar Rate plus the Applicable Margin;
(ii) in the case of Swing Line Loans, at the Base Rate
plus the Applicable Margin; and
(iii) in the case of Term Loans:
(1) if a Base Rate Loan, at the Base Rate
plus the Applicable Margin; or
(2) if a Eurodollar Rate Loan, at the
Adjusted Eurodollar Rate plus the Applicable Margin.
(b) The basis for determining the rate of interest with respect
to any Loan (except a Swing Line Loan), and the Interest Period with respect to
any Eurodollar Rate Loan, shall be selected by Company and notified to
Administrative Agent and Lenders pursuant to the applicable Funding Notice or
Conversion/Continuation Notice, as the case may be; provided, until the earlier
of (A) the date that Administration Agent notifies Company that the primary
syndication of the Term Loan Commitments has been completed and (B) the date
that is 60 days following the Effective Date, the Term Loans shall be
maintained as either (1) Eurodollar Rate Loans having an Interest Period of no
longer than one month or (2) Base Rate Loans. If on any day a Loan is
52
outstanding with respect to which a Funding Notice or Conversion/Continuation
Notice has not been delivered to Administrative Agent in accordance with the
terms hereof specifying the applicable basis for determining the rate of
interest, then for that day such Loan shall be a Base Rate Loan. Swing Line
Loans shall be made and maintained only as Base Rate Loans.
(c) In connection with Eurodollar Rate Loans there shall be no
more than ten Interest Periods outstanding at any time. In the event Company
fails to specify between a Base Rate Loan or a Eurodollar Rate Loan in the
applicable Funding Notice or Conversion/Continuation Notice, such Loan (if
outstanding as a Eurodollar Rate Loan) will be automatically converted into a
Base Rate Loan on the last day of the then-current Interest Period for such
Loan (or if outstanding as a Base Rate Loan will remain as, or (if not then
outstanding) will be made as, a Base Rate Loan). In the event Company fails to
specify an Interest Period for any Eurodollar Rate Loan in the applicable
Funding Notice or Conversion/Continuation Notice, Company shall be deemed to
have selected an Interest Period of one month. As soon as practicable after
10:00 a.m. (New York City time) on each Interest Rate Determination Date,
Administrative Agent shall determine (which determination shall, absent
manifest error, be final, conclusive and binding upon all parties) the interest
rate that shall apply to the Eurodollar Rate Loans for which an interest rate
is then being determined for the applicable Interest Period and shall promptly
give notice thereof (in writing or by telephone confirmed in writing) to
Company and each Lender.
(d) Interest payable pursuant to Section 2.9(a) shall be
computed (i) in the case of Base Rate Loans on the basis of a 365-day or
366-day year, as the case may be, and (ii) in the case of Eurodollar Rate
Loans, on the basis of a 360-day year, in each case for the actual number of
days elapsed in the period during which it accrues. In computing interest on
any Loan, the date of the making of such Loan or the first day of an Interest
Period applicable to such Loan or, with respect to a Base Rate Loan being
converted from a Eurodollar Rate Loan, the date of conversion of such
Eurodollar Rate Loan to such Base Rate Loan, as the case may be, shall be
included, and the date of payment of such Loan or the expiration date of an
Interest Period applicable to such Loan or, with respect to a Base Rate Loan
being converted to a Eurodollar Rate Loan, the date of conversion of such Base
Rate Loan to such Eurodollar Rate Loan, as the case may be, shall be excluded;
provided, if a Loan is repaid on the same day on which it is made, one day's
interest shall be paid on that Loan.
(e) Except as otherwise set forth herein, interest on each Loan
shall be payable in arrears on and to (i) each Interest Payment Date applicable
to that Loan; (ii) any prepayment of that Loan, whether voluntary or mandatory,
to the extent accrued on the amount being prepaid; and (iii) at maturity,
including final maturity; provided, however, with respect to any voluntary
prepayment of a Base Rate Loan, accrued interest shall instead be payable on
the applicable Interest Payment Date.
53
2.10. CONVERSION/CONTINUATION.
(a) Subject to Section 2.19 and so long as no Default or Event
of Default shall have occurred and then be continuing, Company shall have the
option:
(i) to convert at any time all or any part of any Loan
equal to $500,000 and integral multiples of $100,000 in excess of that
amount from one Type of Loan to another Type of Loan; provided, a
Eurodollar Rate Loan may only be converted on the expiration of the
Interest Period applicable to such Eurodollar Rate Loan unless Company
shall pay all amounts due under Section 2.19 in connection with any
such conversion; or
(ii) upon the expiration of any Interest Period applicable
to any Eurodollar Rate Loan, to continue all or any portion of such Loan
equal to $500,000 and integral multiples of $100,000 in excess of that
amount as a Eurodollar Rate Loan.
(b) The Company shall deliver a Conversion/Continuation Notice
to Administrative Agent no later than 11:00 a.m. (New York City time) at least
one Business Day in advance of the proposed Conversion/Continuation Notice (in
the case of a conversion to a Base Rate Loan) and at least three Business Days
in advance of the proposed Conversion/Continuation Date (in the case of a
conversion to, or a continuation of, a Eurodollar Rate Loan). Except as
otherwise provided herein, a Conversion/ Continuation Notice for conversion to,
or continuation of, any Eurodollar Rate Loans (or telephonic notice in lieu
thereof) shall be irrevocable on and after the related Interest Rate
Determination Date, and Company shall be bound to effect a conversion or
continuation in accordance therewith.
2.11. DEFAULT INTEREST. Upon the occurrence and during the continuance
of an Event of Default, the principal amount of all Loans outstanding and, to
the extent permitted by applicable law, any interest payments on the Loans or
any fees or other amounts owed hereunder, shall thereafter bear interest
(including post-petition interest in any proceeding under the Bankruptcy Code
or other applicable bankruptcy laws) payable on demand at a rate that is 2% per
annum in excess of the interest rate otherwise payable hereunder with respect
to the applicable Loans (or, in the case of any such fees and other amounts, at
a rate which is 2% per annum in excess of the interest rate otherwise payable
hereunder for Base Rate Loans); provided, in the case of Eurodollar Rate Loans,
upon the expiration of the Interest Period in effect at the time any such
increase in interest rate is effective such Eurodollar Rate Loans shall
thereupon become Base Rate Loans and shall thereafter bear interest payable
upon demand at a rate which is 2% per annum in excess of the interest rate
otherwise payable hereunder for Base Rate Loans. Payment or acceptance of the
increased rates of interest provided for in this Section 2.11 is not a
permitted alternative to timely payment and shall not constitute a waiver of
any Event of Default or otherwise prejudice or limit any rights or remedies
of Administrative Agent or any Lender.
54
2.12. FEES.
(a) Company agrees to pay to Lenders having Revolving Exposure:
(i) commitment fees equal to (1) the average of the daily
difference between (a) the Revolving Commitments, and (b) the sum of
(x) the aggregate principal amount of outstanding Revolving Loans (but
not Swing Line Loans) plus (y) the Letter of Credit Usage, times (2) the
Applicable Revolving Commitment Fee Percentage; and
(ii) letter of credit fees equal to (1) the Applicable
Margin for Revolving Loans that are Eurodollar Rate Loans, times (2) the
average aggregate daily maximum amount available to be drawn under all
such Letters of Credit (regardless of whether any conditions for drawing
could then be met and determined as of the close of business on any date
of determination).
All fees referred to in Sections 2.12(a) shall be paid to Administrative Agent
at its Principal Office and upon receipt, Administrative Agent shall
promptly distribute to each Lender its Pro Rata Share thereof.
(b) Company agrees to pay directly to Issuing Bank, for its own
account, the following fees:
(i) a fronting fee in an amount equal to (1) an amount
per annum (not to exceed 0.25%) as may be agreed by Company and Issuing
Bank, times (2) the average aggregate daily maximum amount available to
be drawn under all Letters of Credit (determined as of the close of
business on any date of determination); and
(ii) such documentary and processing charges for any
issuance, amendment, transfer or payment of a Letter of Credit as are in
accordance with Issuing Bank's standard schedule for such charges and as
in effect at the time of such issuance, amendment, transfer or payment,
as the case may be.
(c) Company agrees to pay to each Incremental Term Loan Lender
the fees, if any, required to be paid by it under any Incremental Term Loan
Notice.
(d) All fees referred to in Section 2.12(a) and 2.12(b)(i)
shall be calculated on the basis of a 360-day year and the actual number of
days elapsed and shall be payable quarterly in arrears on March 31, June 30,
September 30 and December 31 of each year during the applicable Commitment
Period, commencing on the first such date to occur after the Closing
Date, and on the applicable Commitment Termination Date.
(e) In addition to any of the foregoing fees, Company agrees to
pay to Agents such other fees in the amounts and at the times separately agreed
upon.
55
2.13. SCHEDULED PAYMENTS/COMMITMENT REDUCTIONS.
(a) Scheduled Installments. The principal amounts of the Term
Loans shall be repaid in consecutive quarterly installments (each, a "TERM LOAN
INSTALLMENT") in the aggregate amounts and on the dates (each, a "TERM LOAN
INSTALLMENT DATE") set forth below, commencing on September 30, 2004.
TERM LOAN INSTALLMENT DATETERM LOAN INSTALLMENT
September 30, 2004 $913,812.50
December 31, 2004 $913,812.50
March 31, 2005 $913,812.50
June 30, 2005 $913,812.50
September 30, 2005 $913,812.50
December 31, 2005 $913,812.50
March 31, 2006 $913,812.50
June 30, 2006 $913,812.50
September 30, 2006 $913,812.50
December 31, 2006 $913,812.50
March 31, 2007 $913,812.50
June 30, 2007 $913,812.50
September 30, 2007 $913,812.50
December 31, 2007 $913,812.50
March 31, 2008 $913,812.50
June 30, 2008 $913,812.50
September 30, 2008 $913,812.50
December 31, 2008 $913,812.50
March 31, 2009 $913,812.50
June 30, 2009 $913,812.50
September 30, 2009 $86,812,187.50
December 31, 2009 $86,812,187.50
March 31, 2010 $86,812,187.50
June 30, 2010 $86,812,187.50
56
(b) The principal amount of any Incremental Term Loan shall be
repaid in such amounts and on such dates (each, an "INCREMENTAL TERM LOAN
INSTALLMENT DATE") as provided in the applicable Incremental Term Loan Notice.
(c) Notwithstanding the foregoing, (i) Term Loan Installments
and Incremental Term Loan Installments shall be reduced in connection with any
voluntary or mandatory prepayments of the Term Loans or the Incremental Term
Loans, as the case may be, in accordance with Sections 2.14, 2.15 and 2.16, as
applicable; and (ii) the Term Loans and the Incremental Term Loans, together
with all other amounts owed hereunder or under the applicable Incremental Term
Loan Notice with respect thereto, shall, in any event, be paid in full no later
than the Term Loan Maturity Date and the applicable Incremental Term Loan
Maturity Date, respectively.
2.14. VOLUNTARY PREPAYMENTS/COMMITMENT REDUCTIONS.
(a) Voluntary Prepayments.
(i) Any time and from time to time:
(1) with respect to Base Rate Loans (other
than Swing Line Loans), Company may prepay any such Loans
on any Business Day in whole or in part, in an aggregate
minimum amount of $1,000,000 and integral multiples of
$500,000 in excess of that amount;
(2) with respect to Eurodollar Rate Loans,
Company may prepay any such Loans on any Business Day in
whole or in part in an aggregate minimum amount of
$1,000,000 and integral multiples of $500,000 in excess of
that amount; and
(3) with respect to Swing Line Loans,
Company may prepay any such Loans on any Business Day in
whole or in part in an aggregate minimum amount of
$1,000,000, and in integral multiples of $100,000 in excess
of that amount.
(ii) All such prepayments shall be made:
(1) in the case of Base Rate Loans (other
than Swing Line Loans), upon not less than one Business
Day's prior written or telephonic notice to Administrative
Agent;
(2) in the case of Eurodollar Rate Loans,
upon not less than three Business Days' prior written or
telephonic notice to Administrative Agent; and
57
(3) in the case of Swing Line Loans, upon
written or telephonic notice on the date of prepayment to
Administrative Agent and Swing Line Lender;
in each case given by 12:00 p.m. (New York City time) on the date required and,
if given by telephone, promptly confirmed in writing to Administrative Agent
(and Administrative Agent will promptly transmit such telephonic or original
notice for Term Loans or Revolving Loans, as the case may be, by telefacsimile
or telephone to each Lender) and, as applicable, Swing Line Lender. Upon the
giving of any such notice, the principal amount of the Loans specified in such
notice shall become due and payable on the prepayment date specified therein.
(b) Voluntary Commitment Reductions.
(i) Company may, upon not less than three Business Days'
prior written or telephonic notice confirmed in writing to
Administrative Agent (which original written or telephonic notice
Administrative Agent will promptly transmit by telefacsimile or
telephone to each applicable Lender), at any time and from time to time
terminate in whole or permanently reduce in part, without premium or
penalty, during the Revolving Commitment Period, the Revolving
Commitments in an amount up to the amount by which the Revolving
Commitments exceed the Total Utilization of Revolving Commitments at the
time of such proposed termination or reduction; provided, any such
partial reduction of Commitments shall be in an aggregate minimum amount
of $1,000,000 and integral multiples of $500,000 in excess of that
amount.
(ii) Company's notice to Administrative Agent shall
designate the date (which shall be a Business Day) of such termination
or reduction and the amount of any partial reduction, and such
termination or reduction of the Commitments shall be effective on the
date specified in Company's notice and shall reduce the Commitment of
each Lender proportionately to its Pro Rata Share thereof.
2.15. MANDATORY PREPAYMENTS/COMMITMENT REDUCTIONS.
(a) Asset Sales. No later than the first Business Day
following the date of receipt by Holdings or any of its Subsidiaries of any Net
Asset Sale Proceeds, Company shall prepay Loans and/or permanently reduce
Commitments as set forth in Section 2.16(b)in an aggregate amount equal to 100%
of such Net Asset Sale Proceeds; provided,(i) so long as no Default or Event of
Default shall have occurred and be continuing and (ii) to the extent that
aggregate Net Asset Sale Proceeds from the Closing Date through the applicable
date of determination do not exceed $10,000,000, Company shall have the option,
directly or through one or more of its Subsidiaries, to invest Net Asset Sale
Proceeds within two hundred seventy days of receipt thereof in long-term
productive assets of the general type used in the business of Company and its
Subsidiaries; provided further, pending any such investment all such Net Asset
Sale Proceeds shall be applied to prepay Revolving Loans to the extent
outstanding (without a reduction in Revolving Commitments).
58
(b) Insurance/Condemnation Proceeds. No later than the first
Business Day following the date of receipt by Holdings or any of its
Subsidiaries, or Administrative Agent as loss payee, of any Net
Insurance/Condemnation Proceeds, Company shall prepay Loans and/or reduce
Commitments as set forth in Section 2.16(b) in an aggregate amount equal to
such Net Insurance/Condemnation Proceeds; provided, so long as no Default or
Event of Default shall have occurred and be continuing, Company shall have the
option, directly or through one or more of its Subsidiaries to invest
such Net Insurance/Condemnation Proceeds within two hundred seventy days of
receipt thereof in the repair, restoration or replacement of the applicable
assets thereof, or in long term productive assets of the general type used
in the business of Holdings and its Subsidiaries with the consent of
Administrative Agent, such consent not to be unreasonably withheld; provided
further, pending any such investment all such Net Insurance/Condemnation
Proceeds, as the case may be, shall be applied to prepay Revolving Loans to
the extent outstanding (without a reduction in Revolving Commitments);provided,
further, if a Default subject to a cure period under Section 8.1(e) has
occurred, but such cure period has not yet expired, then (i) until the
earlier of (x) the cure of the Default or (y) the expiration of such
cure period, all such Net Insurance/Condemnation Proceeds, as the case may
be, shall be applied to prepay Revolving Loans (without a reduction in
Revolving Commitments) and, to the extent of any excess, held for the
benefit of the Lenders under arrangements reasonably satisfactory to
Administrative Agent, and (ii) upon the expiration of such cure period,
unless the Default has been cured, all such Net Insurance/Condemnation
Proceeds, as the case may be, shall be applied to prepay Indebtedness in
accordance with the requirements of Section 2.16(b).
(c) Issuance of Equity Securities. On the date of receipt by
Holdings or any of its Subsidiaries after the Effective Date of any Cash
proceeds from a capital contribution to, or the issuance of any Capital Stock
of, Holdings or any of its Subsidiaries (other than pursuant to any employee
stock or stock option compensation plan), to the extent such proceeds are not
used to pay Permitted Acquisition Expenses or, solely in the case of proceeds
from Additional Sponsor Equity, Consolidated Capital Expenditures, Company
shall prepay Loans and/or reduce Commitments as set forth in Section 2.16(b)
in an aggregate amount equal to 75% of such remaining proceeds, net of
underwriting discounts and commissions and other reasonable costs and
expenses associated therewith, including reasonable fees and expenses of
professional advisors; provided, during any period in which the Leverage
Ratio (determined for any such period by reference to the most recent
Compliance Certificate delivered pursuant to Section 5.1(d) calculating
the Leverage Ratio) shall be 4.25:1.00 or less, Company shall only be
required to make the prepayments and/or reductions otherwise required hereby
in an amount equal to 50% of such net proceeds.
59
(d) Issuance of Debt. On the date of receipt by Holdings or
any of its Subsidiaries after the Closing Date of any Cash proceeds from
incurrence of any Indebtedness of Holdings or any of its Subsidiaries other
than with respect to any Indebtedness permitted to be incurred pursuant to
Section 6.1, excluding Section 6.1(c)(ii), Company shall prepay Loans and/or
reduce Commitments as set forth in Section 2.16(b) in an aggregate amount
equal to 100% of such proceeds, net of underwriting discounts and commissions
and other reasonable costs and expenses associated therewith, including
reasonable legal fees and expenses.
(e) Consolidated Excess Cash Flow. In the event that there
shall be Consolidated Excess Cash Flow for any Fiscal Year, Company shall, no
later than ninety days after the end of such Fiscal Year, prepay Loans and/or
reduce Commitments as set forth in Section 2.16(b) in an aggregate amount equal
to 75% of such Consolidated Excess Cash Flow; provided, (i) for any Fiscal
Year in which the Leverage Ratio (determined for any such Fiscal Year by
reference to the most recent applicable Compliance Certificate delivered
pursuant to Section 5.1(d)) is less than 4.25:1.00 but equal to or greater
than 3.25:1.00, Company shall only be required to make the prepayments and/or
reductions otherwise required hereby in an amount equal to 50% of such
Consolidated Excess Cash Flow and (ii) for any Fiscal Year in which the
Leverage Ratio (determined for any such Fiscal Year by reference to the most
recent applicable Compliance Certificate delivered pursuant to Section 5.1
(d)) is less than 3.25:1.00, Company shall only be required to make the
prepayments and/or reductions otherwise required hereby in an amount
equal to 25% of such Consolidated Excess Cash Flow.
(f) Revolving Loans. Company shall from time to time prepay
first, the Swing Line Loans, and second, the Revolving Loans to the extent
necessary so that the Total Utilization of Revolving Commitments shall not at
any time exceed the Revolving Commitments then in effect.
(g) Prepayment Certificate. Concurrently with any prepayment
of Loans and/or reduction of Commitments pursuant to Sections 2.15(a) through
2.15(e), Company shall deliver to Administrative Agent a certificate of an
Authorized Officer demonstrating the calculation of the amount of the
applicable net proceeds or Consolidated Excess Cash Flow, as the case may be.
In the event that Company shall subsequently determine that the actual amount
received exceeded the amount set forth in such certificate, Company shall
promptly make an additional prepayment of the Loans and/or the Revolving
Commitments shall be permanently reduced in an amount equal to such excess,
and Company shall concurrently therewith deliver to Administrative Agent a
certificate of an Authorized Officer demonstrating the derivation of such
excess.
2.16. APPLICATION OF PREPAYMENTS/REDUCTIONS.
(a) Application of Voluntary Prepayments by Class of Loans.
Any prepayment of any Loan pursuant to Section 2.14(a) shall be applied as
follows:
60
first, to repay outstanding Swing Line Loans to the full
extent thereof; and
second, as between outstanding Revolving Loans, Term Loans
and Incremental Term Loans, as Company may direct.
Any prepayment of any Term Loan or Incremental Term Loan pursuant
to Section 2.14(a) shall be further applied on a pro rata basis to reduce the
scheduled remaining installments of principal.
(b) Application of Mandatory Prepayments by Class of Loans.
Any amount required to be paid pursuant to Sections 2.15(a) through 2.15(e)shall
be applied as follows:
first, to prepay Term Loans and Incremental Term Loans on a
pro rata basis (in accordance with the respective outstanding principal
amounts thereof);
second, to prepay the Swing Line Loans to the full extent
thereof and to permanently reduce the Revolving Commitments by the
amount of such prepayment;
third, to pay outstanding reimbursement obligations with
respect to drawn Letters of Credit;
fourth, to prepay Revolving Loans to the full extent
thereof and to permanently reduce the Revolving Commitments by the
amount of such prepayment;
fifth, to cash collateralize Letters of Credit and to
further permanently reduce the Revolving Loan Commitments by the amount
of such cash collateralization; and
sixth, to further permanently reduce the Revolving
Commitments.
(c) [Intentionally omitted.]
(d) Application of Prepayments of Loans to Base Rate Loans and
Eurodollar Rate Loans. Considering each Type of Loan being prepaid separately,
any prepayment thereof shall be applied first to Base Rate Loans to the full
extent thereof before application to Eurodollar Rate Loans, in each case in a
manner which minimizes the amount of any payments required to be made by
Company pursuant to Section 2.19(c).
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2.17. GENERAL PROVISIONS REGARDING PAYMENTS.
(a) All payments by Company of principal, interest, fees and
other Obligations shall be made in Dollars in same day funds, without defense,
setoff or counterclaim, free of any restriction or condition, and delivered to
Administrative Agent not later than 12:00 p.m. (New York City time) on the date
due at Administrative Agent's Principal Office for the account of Lenders;
funds received by Administrative Agent after that time on such due date shall
be deemed to have been paid by Company on the next succeeding Business Day.
(b) All payments in respect of the principal amount of any Loan
(other than voluntary prepayments of Revolving Loans) shall include payment of
accrued interest on the principal amount being repaid or prepaid, and all such
payments (and, in any event, any payments in respect of any Loan on a date when
interest is due and payable with respect to such Loan) shall be applied to the
payment of interest before application to principal.
(c) Administrative Agent shall promptly distribute to each
Lender at such address as such Lender shall indicate in writing, such Lender's
applicable Pro Rata Share of all payments and prepayments of principal and
interest due hereunder, together with all other amounts due thereto, including,
without limitation, all fees payable with respect thereto, to the extent
received by Administrative Agent.
(d) Notwithstanding the foregoing provisions hereof, if any
Conversion/Continuation Notice is withdrawn as to any Affected Lender or if any
Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any
Eurodollar Rate Loans, Administrative Agent shall give effect thereto in
apportioning payments received thereafter.
(e) Subject to the provisos set forth in the definition of
"Interest Period", whenever any payment to be made hereunder shall be stated to
be due on a day that is not a Business Day, such payment shall be made on the
next succeeding Business Day and such extension of time shall be included in
the computation of the payment of interest hereunder or of the Revolving
Commitment fees hereunder.
(f) Company hereby authorizes Administrative Agent to charge
Company's accounts with Administrative Agent in order to cause timely payment
to be made to Administrative Agent of all principal, interest, fees and
expenses due hereunder (subject to sufficient funds being available in its
accounts for that purpose).
(g) Administrative Agent shall deem any payment by or on behalf
of Company hereunder that is not made in same day funds prior to 12:00 p.m.
(New York City time) to be a non-conforming payment. Any such payment shall
not be deemed to have been received by Administrative Agent until the later of
(i) the time such funds become available funds, and (ii) the applicable next
Business Day. Administrative Agent shall give prompt telephonic notice to
Company and each applicable Lender (confirmed in writing) if any payment is
62
non-conforming. Any non-conforming payment may constitute or become a Default
or Event of Default in accordance with the terms of Section 8.1(a). Interest
shall continue to accrue on any principal as to which a non-conforming payment
is made until such funds become available funds (but in no event less than the
period from the date of such payment to the next succeeding applicable Business
Day) at the rate determined pursuant to Section 2.9 from the date such amount
was due and payable until the date such amount is paid in full.
(h) If an Event of Default shall have occurred and not
otherwise been waived, and the maturity of the Obligations shall have been
accelerated pursuant to Section 8.1, all payments or proceeds received by
Agents hereunder in respect of any of the Obligations, shall be applied in
accordance with the application arrangements described in Section 6.5 of the
Pledge and Security Agreement.
2.18. RATABLE SHARING. Lenders hereby agree among themselves that,
except as otherwise provided in the Collateral Documents with respect to
amounts realized from the exercise of rights with respect to Liens on the
Collateral, if any of them shall, whether by voluntary payment (other than a
voluntary prepayment of Loans made and applied in accordance with the terms
hereof), through the exercise of any right of set-off or banker's lien, by
counterclaim or cross action or by the enforcement of any right under the
Credit Documents or otherwise, or as adequate protection of a deposit treated
as cash collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts payable in
respect of Letters of Credit, fees and other amounts then due and owing to such
Lender hereunder or under the other Credit Documents (collectively, the
"AGGREGATE AMOUNTS DUE" to such Lender) which is greater than the proportion
received by any other Lender in respect of the Aggregate Amounts Due to such
other Lender, then the Lender receiving such proportionately greater payment
shall (a) notify Administrative Agent and each other Lender of the receipt of
such payment and (b) apply a portion of such payment to purchase participations
(which it shall be deemed to have purchased from each seller of a participation
simultaneously upon the receipt by such seller of its portion of such payment)
in the Aggregate Amounts Due to the other Lenders so that all such recoveries
of Aggregate Amounts Due shall be shared by all Lenders in proportion to the
Aggregate Amounts Due to them; provided, if all or part of such proportionately
greater payment received by such purchasing Lender is thereafter recovered from
such Lender upon the bankruptcy or reorganization of Company or otherwise,
those purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to such purchasing Lender ratably to the
extent of such recovery, but without interest. Company expressly consents to
the foregoing arrangement and agrees that any holder of a participation so
purchased may exercise any and all rights of banker's lien, set-off or
counterclaim with respect to any and all monies owing by Company to that holder
with respect thereto as fully as if that holder were owed the amount of the
participation held by that holder.
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2.19. MAKING OR MAINTAINING EURODOLLAR RATE LOANS.
(a) Inability to Determine Applicable Interest Rate. In the
event that Administrative Agent shall have determined (which determination
shall be final and conclusive and binding upon all parties hereto absent
manifest error), on any Interest Rate Determination Date with respect to any
Eurodollar Rate Loans, that by reason of circumstances affecting the London
interbank market adequate and reasonable means do not exist for ascertaining
the interest rate applicable to such Loans on the basis provided for in the
definition of Adjusted Eurodollar Rate, Administrative Agent shall on such date
give notice (by telefacsimile or by telephone confirmed in writing) to Company
and each Lender of such determination, whereupon (i) no Loans may be made as,
or converted to, Eurodollar Rate Loans until such time as Administrative Agent
notifies Company and Lenders that the circumstances giving rise to such notice
no longer exist, and (ii) any Funding Notice or Conversion/Continuation Notice
given by Company with respect to the Loans in respect of which such
determination was made shall be deemed to be rescinded by Company.
(b) Illegality or Impracticability of Eurodollar Rate Loans.
In the event that on any date any Lender shall have determined (which
determination shall be final and conclusive and binding upon all parties hereto
but shall be made only after consultation with Company and Administrative
Agent) that the making, maintaining or continuation of its Eurodollar Rate
Loans (i) has become unlawful as a result of compliance by such Lender in good
faith with any law, treaty, governmental rule, regulation, guideline or order
(or would conflict with any such treaty, governmental rule, regulation,
guideline or order not having the force of law even though the failure to
comply therewith would not be unlawful), or (ii) has become impracticable, as a
result of contingencies occurring after the date hereof which materially and
adversely affect the London interbank market or the position of such Lender in
that market, then, and in any such event, such Lender shall be an "AFFECTED
LENDER" and it shall on that day give notice (by telefacsimile or by telephone
confirmed in writing) to Company and Administrative Agent of such determination
(which notice Administrative Agent shall promptly transmit to each other
Lender). Thereafter (1) the obligation of the Affected Lender to make Loans
as, or to convert Loans to, Eurodollar Rate Loans shall be suspended until such
notice shall be withdrawn by the Affected Lender, (2) to the extent such
determination by the Affected Lender relates to a Eurodollar Rate Loan then
being requested by Company pursuant to a Funding Notice or a
Conversion/Continuation Notice, the Affected Lender shall make such Loan as (or
continue such Loan as or convert such Loan to, as the case may be) a Base Rate
Loan, (3) the Affected Lender's obligation to maintain its outstanding
Eurodollar Rate Loans (the "AFFECTED LOANS") shall be terminated at the earlier
to occur of the expiration of the Interest Period then in effect with respect
to the Affected Loans or when required by law, and (4) the Affected Loans shall
automatically convert into Base Rate Loans on the date of such termination.
Notwithstanding the foregoing, to the extent a determination by an Affected
Lender as described above relates to a Eurodollar Rate Loan then being
requested by Company pursuant to a Funding Notice or a Conversion/Continuation
64
Notice, Company shall have the option, subject to the provisions of Section
2.19(c), to rescind such Funding Notice or Conversion/Continuation Notice as to
all Lenders by giving notice (by telefacsimile or by telephone confirmed in
writing) to Administrative Agent of such rescission on the date on which the
Affected Lender gives notice of its determination as described above (which
notice of rescission Administrative Agent shall promptly transmit to each other
Lender). Except as provided in the immediately preceding sentence, nothing in
this Section 2.19(b) shall affect the obligation of any Lender other than an
Affected Lender to make or maintain Loans as, or to convert Loans to,
Eurodollar Rate Loans in accordance with the terms hereof.
(c) Compensation for Breakage or Non-Commencement of Interest
Periods. Company shall compensate each Lender, upon written request by such
Lender (which request shall set forth the basis for requesting such amounts),
for all reasonable losses, expenses and liabilities (including any interest
paid by such Lender to lenders of funds borrowed by it to make or carry its
Eurodollar Rate Loans and any loss, expense or liability sustained by such
Lender in connection with the liquidation or re-employment of such funds but
excluding loss of anticipated profits) which such Lender may sustain: (i) if
for any reason (other than a default by such Lender) a borrowing of any
Eurodollar Rate Loan does not occur on a date specified therefor in a Funding
Notice or a telephonic request for borrowing, or a conversion to or
continuation of any Eurodollar Rate Loan does not occur on a date specified
therefor in a Conversion/Continuation Notice or a telephonic request for
conversion or continuation; (ii) if any prepayment or other principal payment
or any conversion of any of its Eurodollar Rate Loans occurs on a date prior to
the last day of an Interest Period applicable to that Loan (including, without
limitation, pursuant to Section 2.14 hereof); or (iii) if any prepayment of
any of its Eurodollar Rate Loans is not made on any date specified in a notice
of prepayment given by Company.
(d) Booking of Eurodollar Rate Loans. Any Lender may make,
carry or transfer Eurodollar Rate Loans at, to, or for the account of any of
its branch offices or the office of an Affiliate of such Lender.
(e) Assumptions Concerning Funding of Eurodollar Rate Loans.
Calculation of all amounts payable to a Lender under this Section 2.19 and
under Section 2.20 shall be made as though such Lender had actually funded each
of its relevant Eurodollar Rate Loans through the purchase of a Eurodollar
deposit bearing interest at the rate obtained pursuant to clause (i) of the
definition of Adjusted Eurodollar Rate in an amount equal to the amount of such
Eurodollar Rate Loan and having a maturity comparable to the relevant Interest
Period and through the transfer of such Eurodollar deposit from an offshore
office of such Lender to a domestic office of such Lender in the United States
of America; provided, however, each Lender may fund each of its Eurodollar Rate
Loans in any manner it sees fit and the foregoing assumptions shall be utilized
only for the purposes of calculating amounts payable under this Section 2.19
and under Section 2.20.
65
2.20. INCREASED COSTS; CAPITAL ADEQUACY.
(a) Compensation For Increased Costs and Taxes. Subject to the
provisions of Section 2.21, in the event that any Lender (which term shall
include Issuing Bank for purposes of this Section 2.20(a)) shall determine
(which determination shall, absent manifest error, be final and conclusive and
binding upon all parties hereto) that any law, treaty or governmental rule,
regulation or order, or any change therein or in the interpretation,
administration or application thereof (including the introduction of any new
law, treaty or governmental rule, regulation or order), or any determination of
a court or governmental authority, in each case that becomes effective after
the date hereof, or compliance by such Lender with any guideline, request or
directive issued or made after the date hereof by any central bank or other
governmental or quasi-governmental authority (whether or not having the force
of law): (i) subjects such Lender (or its applicable lending office) to any
additional Tax (other than any Excluded Tax) with respect to this Agreement or
any of the other Credit Documents or any of its obligations hereunder or
thereunder or any payments to such Lender (or its applicable lending office) of
principal, interest, fees or any other amount payable hereunder; (ii) imposes,
modifies or holds applicable any reserve (including any marginal, emergency,
supplemental, special or other reserve), special deposit, compulsory loan, FDIC
insurance or similar requirement against assets held by, or deposits or other
liabilities in or for the account of, or advances or loans by, or other credit
extended by, or any other acquisition of funds by, any office of such Lender
(other than any such reserve or other requirements with respect to Eurodollar
Rate Loans that are reflected in the definition of Adjusted Eurodollar Rate);
or (iii) imposes any other condition (other than with respect to a Tax matter)
on or affecting such Lender (or its applicable lending office) or its
obligations hereunder or the London interbank market; and the result of any of
the foregoing is to increase the cost to such Lender of agreeing to make,
making or maintaining Loans hereunder or to reduce any amount received or
receivable by such Lender (or its applicable lending office) with respect
thereto; then, in any such case, Company shall promptly pay to such Lender,
upon receipt of the statement referred to in the next sentence, such additional
amount or amounts (in the form of an increased rate of, or a different method
of calculating, interest or otherwise as such Lender in its sole discretion
shall determine) as may be necessary to compensate such Lender for any such
increased cost or reduction in amounts received or receivable hereunder. Such
Lender shall deliver to Company (with a copy to Administrative Agent) a written
statement, setting forth in reasonable detail the basis for calculating the
additional amounts owed to such Lender under this Section 2.20(a), which
statement shall be conclusive and binding upon all parties hereto absent
manifest error.
(b) Capital Adequacy Adjustment. In the event that any Lender
shall have determined that the adoption, effectiveness, phase-in or
applicability after the Closing Date of any law, rule or regulation (or any
provision thereof) regarding capital adequacy, or any change therein or in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its applicable lending office) with
any guideline, request or directive regarding capital adequacy (whether or not
66
having the force of law) of any such Governmental Authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on the capital of such Lender or any corporation controlling such Lender as a
consequence of, or with reference to, such Lender's Loans or Commitments or
Letters of Credit, or participations therein or other obligations hereunder
with respect to the Loans or the Letters of Credit to a level below that which
such Lender or such controlling corporation could have achieved but for such
adoption, effectiveness, phase-in, applicability, change or compliance (taking
into consideration the policies of such Lender or such controlling corporation
with regard to capital adequacy), then from time to time, within five Business
Days after receipt by Company from such Lender of the statement referred to in
the next sentence, Company shall pay to such Lender such additional amount or
amounts as will compensate such Lender or such controlling corporation on an
after-tax basis for such reduction. Such Lender shall deliver to Company (with
a copy to Administrative Agent) a written statement, setting forth in
reasonable detail the basis for calculating the additional amounts owed to
Lender under this Section 2.20(b), which statement shall be conclusive and
binding upon all parties hereto absent manifest error.
2.21. TAXES; WITHHOLDING, ETC.
(a) Payments to Be Free and Clear. All sums payable by any
Credit Party hereunder and under the other Credit Documents shall (except to
the extent required by law) be paid free and clear of, and without any
deduction or withholding on account of, any Tax (other than any Excluded Tax)
imposed, levied, collected, withheld or assessed by or within the United States
of America or any political subdivision in or of the United States of America
or any other jurisdiction from or to which a payment is made by or on behalf of
any Credit Party or by any federation or organization of which the United
States of America or any such jurisdiction is a member at the time of payment.
(b) Withholding of Taxes. If any Credit Party or any other
Person is required by law to make any deduction or withholding on account of
any Tax from any sum paid or payable by any Credit Party to Administrative
Agent or any Lender under any of the Credit Documents: (i) Company shall notify
Administrative Agent of any such requirement or any change in any such
requirement as soon as Company becomes aware of it; (ii) Company shall pay any
such Tax before the date on which penalties attach thereto, such payment to be
made (if the liability to pay is imposed on any Credit Party) for its own
account or (if that liability is imposed on Administrative Agent or such
Lender, as the case may be) on behalf of and in the name of Administrative
Agent or such Lender; (iii) except with respect to any Excluded Tax, the sum
payable by such Credit Party in respect of which the relevant deduction,
withholding or payment is required shall be increased to the extent necessary
to ensure that, after the making of that deduction, withholding or payment,
Administrative Agent or such Lender, as the case may be, receives on the due
date a net sum equal to what it would have received had no such deduction,
withholding or payment been required or made; and (iv) within thirty days after
paying any sum from which it is required by law to make any deduction or
withholding, and within thirty days after the due date of payment of any Tax
67
which it is required by clause (ii) above to pay, Company shall deliver to
Administrative Agent evidence satisfactory to the other affected parties of
such deduction, withholding or payment and of the remittance thereof to the
relevant taxing or other authority, provided, however, that no additional
amount shall be required to be paid to any Lender under clause (iii) above
except to the extent that any change after the Lender Effective Date in any
such requirement for a deduction, withholding or payment as is mentioned
therein shall result in an increase in the rate of such deduction, withholding
or payment from that in effect at the Lender Effective Date in respect of
payments to such Lender.
(c) Evidence of Exemption From U.S. Withholding Tax. Except to
the extent such deliveries have already been made by any Lender pursuant to the
Original Agreement or the Existing Agreement and such previously delivered
forms continue to be accurate, (i) each Lender that is not a United States
Person (as such term is defined in Section 7701(a)(30) of the Internal Revenue
Code) for U.S. federal income tax purposes (a "NON-US LENDER") shall deliver to
Administrative Agent for transmission to Company, on or prior to the Effective
Date (in the case of each Lender listed on the signature pages hereof on the
Effective Date) or on or prior to the date of the Assignment Agreement pursuant
to which it becomes a Lender (in the case of each other Lender), upon
designation of a new lending office, and at such other times as may be
necessary in the determination of Company or Administrative Agent (each in the
reasonable exercise of its discretion), two original copies of Internal Revenue
Service Form W-8BEN or W-8ECI (or any successor forms), properly completed and
duly executed by such Lender, and such other documentation required under the
Internal Revenue Code, or regulations or administrative pronouncements
promulgated thereunder, and reasonably requested by Company to establish that
such Lender is not subject to deduction or withholding of United States federal
income tax with respect to any payments to such Lender of principal, interest,
fees or other amounts payable under any of the Credit Documents; (ii) each
Lender that is a United States Person (as such term is defined in Section
7701(a)(30) of the Internal Revenue Code) for U.S. federal income tax purposes,
and that is not a person which the Company is entitled to treat as an "exempt
recipient" (as such term is defined in Section 1.6049-4(c)(ii) of the United
States Treasury Regulations) without receiving a certificate from such person
(under current law, including, but not limited to any person whose name
includes the terms "Incorporated", "Inc.", "Corporation", "Corp.", "P.C.",
"insurance company", "indemnity company", "reinsurance company", "assurance
company", "bank", "savings and loan association", "buildings and loan
association", "homestead association", "credit union" or "industrial loan
association" and their permitted foreign language equivalents, and any entity
that is generally known in the investment community to be registered at all
times during the taxable year under the Investment Company Act of 1940) (a "US
Lender") shall deliver to the Administrative Agent for transmission to the
Company, on or prior to the Effective Date (in the case of each US Lender
listed on the signature pages hereof, on the Effective Date) or on or prior to
the date of the Assignment Agreement pursuant to which it becomes a US Lender
(in the case of each other US Lender), and at such other times as may be
necessary in the determination of the Company or Administrative Agent (each in
the reasonable exercise of its discretion), two original copies of Internal
68
Revenue Service Form W-9 (or any successor forms), properly completed and duly
executed by such US Lender, and such other documentation reasonably requested
by the Company, to establish that such US Lender is not subject to deduction or
withholding of United States federal income tax with respect to any payments to
such US Lender of principal, interest, fees or other amounts payable under any
of the Credit Documents; or (iii) if such Lender is not a "bank" or other
Person described in Section 881(c)(3) of the Internal Revenue Code and cannot
deliver either Internal Revenue Service Form W-8BEN or W-8ECI pursuant to
clause (i) above, a Certificate re Non-Bank Status together with two original
copies of Internal Revenue Service Form W-8 (or any successor form), properly
completed and duly executed by such Lender, and such other documentation
reasonably requested by Company or Administrative Agent to establish that such
Lender is not subject to deduction or withholding of United States federal
income tax with respect to any payments to such Lender of interest payable
under any of the Credit Documents. Each Lender required to deliver any forms,
certificates or other evidence with respect to United States federal income tax
withholding matters pursuant to this Section 2.21(c) hereby agrees, from time
to time after the initial time for delivery or potential delivery by such
Lender of such forms, certificates or other evidence, whenever a lapse in time
or change in circumstances renders such forms, certificates or other evidence
obsolete or inaccurate in any material respect, that such Lender shall promptly
deliver to Administrative Agent for transmission to Company two new original
copies of Internal Revenue Service Form W-8BEN or W-8ECI (or any successor
forms), or a Certificate re Non-Bank Status (or any successor forms) and two
original copies of Internal Revenue Service Form W-8 or two original copies of
Internal Revenue Service Form W-9, as the case may be (or any successor forms),
properly completed and duly executed by such Lender, and such other
documentation reasonably requested by Company or Administrative Agent to
confirm or establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect to payments to
such Lender under the Credit Documents, or notify Administrative Agent and
Company of its inability to deliver any such forms, certificates or other
evidence. Company shall not be required to pay any additional amount to any
U.S. Lender or Non-US Lender under Section 2.21(b)(iii) if such Lender shall
have failed (1) to deliver the forms, certificates or other evidence referred
to in the second sentence of this Section 2.21(c), or (2) to notify
Administrative Agent and Company of its inability to deliver any such forms,
certificates or other evidence, as the case may be; provided, if such Lender
shall have satisfied the requirements of the first sentence of this
Section 2.21(c) on the Effective Date or on the date of the Assignment
Agreement pursuant to which it became a Lender, as applicable, nothing in this
last sentence of Section 2.21(c) shall relieve Company of its obligation to pay
any additional amounts pursuant to Section 2.20(a) or Section 2.21(b) in the
event that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender is not subject to withholding as
described herein. Each US Lender and Non-US Lender hereby agrees to indemnify
and hold harmless the Company from and against any Taxes imposed on or behalf
of the United States or any taxing jurisdiction thereof, and any interest,
penalties or additions thereto, or costs incurred in connection therewith,
69
incurred or payable by the Company as a result of the failure of the Company to
comply with its obligations to deduct or withhold any Taxes imposed by or on
behalf of the United States or any taxing jurisdiction thereof from any
payments made pursuant to this Agreement to such US Lender, Non-US Lender or
the Administrative Agent, which failure resulted from the Company's reliance on
any form, statement, certificate or other information provided to it by such
Lender pursuant to this Section 2.21 or by reason of such Lender being a
"conduit entity" within the meaning of U.S. Treasury Regulation Section 1.881-3
(or any applicable successor provision).
2.22. OBLIGATION TO MITIGATE. Each Lender agrees that, as promptly as
practicable after the officer of such Lender responsible for administering its
Commitments, Loans or Letters of Credit, as the case may be, becomes aware of
the occurrence of an event or the existence of a condition that would cause
such Lender to become an Affected Lender or that would entitle such Lender to
receive payments under Section 2.19, 2.20 or 2.21, it will, to the extent not
inconsistent with the internal policies of such Lender and any applicable legal
or regulatory restrictions, use reasonable efforts to (a) make, issue, fund or
maintain its Commitments, Loans and Letters of Credit, including any Affected
Loans, through another office of such Lender, or (b) take such other measures
as such Lender may deem reasonable, if as a result thereof the circumstances
which would cause such Lender to be an Affected Lender would cease to exist or
the additional amounts which would otherwise be required to be paid to such
Lender pursuant to Section 2.19, 2.20 or 2.21 would be materially reduced and
if, as determined by such Lender in its sole discretion, the making, issuing,
funding or maintaining of such Commitments, Loans or Letters of Credit through
such other office or in accordance with such other measures, as the case may
be, would not otherwise adversely affect such Commitments, Loans or Letters of
Credit or the interests of such Lender; provided, such Lender will not be
obligated to utilize such other office pursuant to this Section 2.22 unless
Company agrees to pay all incremental expenses incurred by such Lender as a
result of utilizing such other office as described in clause (a) above. A
certificate as to the amount of any such expenses payable by Company pursuant
to this Section 2.22 (setting forth in reasonable detail the basis for
requesting such amount) submitted by such Lender to Company (with a copy to
Administrative Agent) shall be conclusive absent manifest error.
2.23. DEFAULTING LENDERS. Anything contained herein to the contrary
notwithstanding, in the event that any Lender, at the direction or request of
any regulatory agency or authority, defaults (a "DEFAULTING LENDER") in its
obligation to fund (a "FUNDING DEFAULT") any Revolving Loan under Section
2.3(b)(iv) or its portion of any unreimbursed payment under Section 2.4(e) (in
each case, a "DEFAULTED LOAN"), then (a) during any Default Period with respect
to such Defaulting Lender, such Defaulting Lender shall be deemed not to be a
"Lender" for purposes of voting on any matters (including the granting of any
consents or waivers) with respect to any of the Credit Documents; (b) to the
extent permitted by applicable law, until such time as the Default Excess with
respect to such Defaulting Lender shall have been reduced to zero, (i) any
voluntary prepayment of the Revolving Loans shall, if Company so directs at the
70
time of making such voluntary prepayment, be applied to the Revolving Loans of
other Lenders as if such Defaulting Lender had no Revolving Loans outstanding
and the Revolving Exposure of such Defaulting Lender were zero, and (ii) any
mandatory prepayment of the Revolving Loans shall, if Company so directs at the
time of making such mandatory prepayment, be applied to the Revolving Loans of
other Lenders (but not to the Revolving Loans of such Defaulting Lender) as if
such Defaulting Lender had funded all Defaulted Loans of such Defaulting
Lender, it being understood and agreed that Company shall be entitled to retain
any portion of any mandatory prepayment of the Revolving Loans that is not paid
to such Defaulting Lender solely as a result of the operation of the provisions
of this clause (b); (c) such Defaulting Lender's Revolving Commitment and
outstanding Revolving Loans and such Defaulting Lender's Pro Rata Share of the
Letter of Credit Usage shall be excluded for purposes of calculating the
Revolving Commitment fee payable to Lenders in respect of any day during any
Default Period with respect to such Defaulting Lender, and such Defaulting
Lender shall not be entitled to receive any Revolving Commitment fee pursuant
to Section 2.11 with respect to such Defaulting Lender's Revolving Commitment
in respect of any Default Period with respect to such Defaulting Lender; and
(d) the Total Utilization of Revolving Commitments as at any date of
determination shall be calculated as if such Defaulting Lender had funded all
Defaulted Loans of such Defaulting Lender. No Revolving Commitment of any
Lender shall be increased or otherwise affected, and, except as otherwise
expressly provided in this Section 2.23, performance by Company of its
obligations hereunder and the other Credit Documents shall not be excused or
otherwise modified as a result of any Funding Default or the operation of this
Section 2.23. The rights and remedies against a Defaulting Lender under this
Section 2.23 are in addition to other rights and remedies which Company may
have against such Defaulting Lender with respect to any Funding Default and
which Administrative Agent or any Lender may have against such Defaulting
Lender with respect to any Funding Default.
2.24. REMOVAL OR REPLACEMENT OF A LENDER. Anything contained herein to
the contrary notwithstanding, in the event that: (a) any Lender (an
"INCREASED-COST LENDER") shall give notice to Company that such Lender is an
Affected Lender or such Lender becomes entitled to receive payments under
Section 2.20 or 2.21, the circumstances which have caused such Lender to be an
Affected Lender or which entitle such Lender to receive such payments shall
remain in effect, and such Lender shall fail to (i) withdraw such notice or
(ii) waive in writing the right to receive the applicable payments, in each of
cases (i) and (ii), within five Business Days after Company's request for such
withdrawal or waiver; or (b) any Lender shall become a Defaulting Lender, the
Default Period for such Defaulting Lender shall remain in effect, and such
Defaulting Lender shall fail to cure the default as a result of which it has
become a Defaulting Lender within five Business Days after Company's request
that it cure such default; or (c) in connection with any proposed amendment,
modification, termination, waiver or consent with respect to any of the
provisions hereof as contemplated by Section 10.5(b), the consent of Requisite
Lenders shall have been obtained but the consent of one or more of such other
Lenders (each a "NON-CONSENTING LENDER") whose consent is required shall not
have been obtained; then, with respect to each such Increased-Cost Lender,
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Defaulting Lender or Non-Consenting Lender (the "TERMINATED LENDER"), Company
may, by giving written notice to Administrative Agent and any Terminated Lender
of its election to do so, elect to cause such Terminated Lender (and such
Terminated Lender hereby irrevocably agrees) to assign its outstanding Loans
and its Revolving Commitments, if any, in full to one or more Eligible
Assignees (each a "REPLACEMENT LENDER") in accordance with the provisions of
Section 10.6 and Terminated Lender shall pay any fees payable thereunder in
connection with such assignment; provided, (1) on the date of such assignment,
the Replacement Lender shall pay to Terminated Lender an amount equal to the
sum of (A) an amount equal to the principal of, and all accrued interest on,
all outstanding Loans of the Terminated Lender, (B) an amount equal to all
unreimbursed drawings that have been funded by such Terminated Lender, together
with all then unpaid interest with respect thereto at such time and (C) an
amount equal to all accrued, but theretofore unpaid fees owing to such
Terminated Lender pursuant to Section 2.12; (2) on the date of such assignment,
Company shall pay any amounts payable to such Terminated Lender pursuant to
Section 2.19, 2.20 or 2.21 or otherwise as if it were a prepayment; and (3) in
the event such Terminated Lender is a Non-Consenting Lender, each Replacement
Lender shall consent, at the time of such assignment, to each matter in respect
of which such Terminated Lender was a Non-Consenting Lender; provided, Company
may not make such election with respect to any Terminated Lender that is also
an Issuing Bank unless, prior to the effectiveness of such election, Company
shall have caused each outstanding Letter of Credit issued thereby to be
cancelled. Upon the prepayment of all amounts owing to any Terminated Lender
and the termination of such Terminated Lender's Revolving Commitments, if any,
such Terminated Lender shall no longer constitute a "Lender" for purposes
hereof; provided, any rights of such Terminated Lender to indemnification
hereunder shall survive as to such Terminated Lender.
SECTION 3. CONDITIONS PRECEDENT
3.1. CLOSING DATE. The obligation of any Lender to make a Credit
Extension under the Original Agreement on the Closing Date was subject to the
satisfaction, or waiver in accordance with Section 10.5, of the following
conditions on or before the Closing Date. Solely for purposes of the
historical conditions set forth in this Section 3.1, capitalized terms used in
this Section 3.1 and defined in the Original Agreement shall have the meanings
specified in the Original Agreement as applicable as of the Closing Date.
(a) Credit Documents. Administrative Agent shall have received
sufficient copies of each Credit Document originally executed and delivered by
each applicable Credit Party for each Lender.
(b) Organizational Documents; Incumbency. Administrative Agent
shall have received (i) sufficient copies of each Organizational Document
executed and delivered by each Credit Party, as applicable, and, to the extent
applicable, certified as of a recent date by the appropriate governmental
official, for each Lender, each dated the Closing Date or a recent date prior
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thereto; (ii) signature and incumbency certificates of the officers of such
Person executing the Credit Documents to which it is a party; (iii) resolutions
of the Board of Directors or similar governing body of each Credit Party
approving and authorizing the execution, delivery and performance of this
Agreement and the other Credit Documents and the Related Agreements to which it
is a party or by which it or its assets may be bound as of the Closing Date,
certified as of the Closing Date by its secretary or an assistant secretary as
being in full force and effect without modification or amendment; (iv) a good
standing certificate from the applicable Governmental Authority of each Credit
Party's jurisdiction of incorporation, organization or formation and in each
jurisdiction in which it is qualified as a foreign corporation or other entity
to do business, each dated a recent date prior to the Closing Date; and
(v) such other documents as Administrative Agent may reasonably request in
writing.
(c) Organizational and Capital Structure. The organizational
structure and capital structure of Holdings and its Subsidiaries, both before
and after giving effect to the Merger, shall be as set forth on Schedule 4.2.
(d) Issuance of Senior Subordinated Notes. On or before the
Closing Date:
(i) Company shall have received the gross proceeds from
the issuance of the Senior Subordinated Notes in an aggregate amount in
cash of not less than $250,000,000;
(ii) Company shall have delivered to Agents complete,
correct and conformed copies of the Senior Subordinated Note Documents;
and
(iii) Company shall have provided evidence satisfactory to
Agents that the proceeds of Senior Subordinated Notes have been
irrevocably committed, prior to the application of the proceeds of the
Term Loans to be made on the Closing Date, to the payment of the Merger
Financing Requirements (subject to the concurrent consummation of the
Merger).
(e) Equity Financing. On or before the Closing Date, Company
shall have provided evidence satisfactory to Agents that the proceeds of the
Equity Financing have been irrevocably committed, prior to the application of
the proceeds of the Term Loans to be made on the Closing Date, to the payment
of the Merger Financing Requirements (subject to the concurrent consummation of
the Merger).
(f) Related Agreements. Syndication Agent shall have received
a fully executed or conformed copy of each Related Agreement and any documents
executed in connection therewith, together with copies of any opinions of
counsel delivered to the parties under the Related Agreements, accompanied by a
letter from each such counsel (to the extent not inconsistent with such
counsel's established internal policies) authorizing Lenders to rely upon such
opinion to the same extent as though it were addressed to Lenders. Each
Related Agreement shall be in full force and effect and no provision thereof
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shall have been modified or waived in any respect determined by Syndication
Agent to be material, in each case without the consent of Syndication Agent.
(g) Consummation of Merger and Other Transactions. (i) All
conditions to the Merger set forth in Article VIII of the Merger Agreement and
related documents shall have been satisfied or the fulfillment of any such
conditions shall have been waived with the consent of Administrative Agent and
Syndication Agent; (ii) the Merger shall have become effective in accordance
with the terms of the Merger Agreement; (iii) the other conditions set forth in
Schedule 1.1 shall have been satisfied; and (iv) the Merger Financing
Requirements shall not exceed $848,800,000.
(h) Existing Guaranty Obligations. Except as set forth on
Schedule 6.1(g), on the Closing Date, Holdings and its Subsidiaries shall have
(i) extinguished all guaranty obligations of Company and its Subsidiaries, and
(ii) made arrangements satisfactory to Syndication Agent and Administrative
Agent with respect to the cancellation of any letters of credit outstanding to
support the obligations of Holdings and its Subsidiaries with respect thereto.
(i) Existing Indebtedness. Except as set forth on Schedule
6.1(g), on the Closing Date, Holdings and its Subsidiaries shall have
(i) repaid in full all of their Indebtedness, (ii) terminated any commitments
to lend or make other extensions of credit thereunder, (iii) delivered to
Syndication Agent and Administrative Agent all documents or instruments
necessary to release all Liens securing any Indebtedness (other than in respect
of Surviving Indebtedness) of any of them or other obligations of Holdings and
its Subsidiaries thereunder being repaid on the Closing Date, and (iv) made
arrangements satisfactory to Syndication Agent and Administrative Agent with
respect to the cancellation of any letters of credit outstanding thereunder or
the issuance of Letters of Credit to support the obligations of Holdings and
its Subsidiaries with respect thereto.
(j) Transaction Costs. On or prior to the Closing Date,
Company shall have delivered to Administrative Agent Company's reasonable best
estimate of the Transaction Costs (other than fees payable to any Agent).
(k) Governmental Authorizations and Consents. Each Credit
Party shall have obtained all Governmental Authorizations and all consents of
other Persons, in each case that are necessary in connection with the
transactions contemplated by the Credit Documents and the Related Agreements
and each of the foregoing shall be in full force and effect and in form and
substance reasonably satisfactory to Syndication Agent and Administrative
Agent, except for such registrations, consents, approvals, notices or actions
the failure of which to obtain, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect. All applicable
waiting periods shall have expired without any action being taken or threatened
by any competent authority which would restrain, prevent or otherwise impose
adverse conditions on the transactions contemplated by the Credit Documents or
the Related Agreements or the financing thereof and no action, request for
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stay, petition for review or rehearing, reconsideration, or appeal with respect
to any of the foregoing shall be pending, and the time for any applicable
agency to take action to set aside its consent on its own motion shall have
expired.
(l) Real Estate Assets. In order to create in favor of
Collateral Agent, for the benefit of Secured Parties, a valid and, subject to
any filing and/or recording referred to herein, perfected First Priority
security interest in each Material Real Estate Asset, Collateral Agent shall
have received from Company and each applicable Guarantor:
(i) fully executed and notarized Mortgages, in proper
form for recording in all appropriate places in all applicable
jurisdictions, encumbering each Real Estate Asset listed in
Schedule 3.1(l) (each, a "CLOSING DATE MORTGAGED PROPERTY'');
(ii) an opinion of counsel (which counsel shall be
reasonably satisfactory to Collateral Agent) in each state in which a
Closing Date Mortgaged Property is located with respect to the
enforceability of the form(s) of Mortgages to be recorded in such state
and such other matters as Collateral Agent may reasonably request, in
each case in form and substance reasonably satisfactory to Collateral
Agent;
(iii) in the case of each Leasehold Property that is a
Closing Date Mortgaged Property, (1) a Landlord's Consent, Estoppel
Certificate and Amendment and (2) evidence that such Leasehold Property
is a Recorded Leasehold Interest;
(iv) (A) ALTA mortgagee title insurance policies (or other
policies available in such state and reasonably satisfactory to
Collateral Agent) or unconditional commitments therefor issued by one or
more title companies reasonably satisfactory to Collateral Agent with
respect to each Closing Date Mortgaged Property (each, a "TITLE
POLICY"), in amounts not less than the fair market value of each Closing
Date Mortgaged Property, together with a title report issued by a title
company with respect thereto, dated not more than thirty days prior to
the Closing Date and copies of all recorded documents listed as
exceptions to title or otherwise referred to therein, each in form and
substance reasonably satisfactory to Collateral Agent and (B) evidence
satisfactory to Collateral Agent that such Credit Party has paid to the
title company or to the appropriate governmental authorities all
expenses and premiums of the title company and all other sums required
in connection with the issuance of each Title Policy and all recording
and stamp taxes (including mortgage recording and intangible taxes)
payable in connection with recording the Mortgages for each Closing Date
Mortgaged Property in the appropriate real estate records;
(v) evidence of flood insurance with respect to each
Flood Hazard Property that is located in a community that participates
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in the National Flood Insurance Program, in each case in compliance with
any applicable regulations of the Board of Governors of the Federal
Reserve System, in form and substance reasonably satisfactory to
Collateral Agent;
(vi) ALTA/ACSM surveys (or any other surveys available in
such state and reasonably satisfactory to Collateral Agent) of all
Closing Date Mortgaged Properties, certified to Collateral Agent and
dated not more than thirty days prior to the Closing Date and in form
and substance reasonably satisfactory to Collateral Agent.
(vii) fully executed UCC-1 fixture filings for filing in
each location Collateral Agent reasonably determines to be appropriate;
and
(viii)an appraisal of each Closing Date Mortgaged Property
in form and substance reasonably acceptable to Collateral Agent.
(m) Other Collateral. In order to create in favor of
Collateral Agent, for the benefit of Secured Parties, a valid, perfected First
Priority security interest in the Collateral (other than Real Estate Assets),
Collateral Agent shall have received:
(i) evidence satisfactory to the Collateral Agent of the
compliance by each Credit Party of their obligations under the Pledge
and Security Agreement and the other Collateral Documents (including,
without limitation, their obligations to deliver UCC financing
statements, originals of securities, instruments and chattel paper and
any agreements governing deposit and/or securities accounts as provided
therein).
(ii) A completed Collateral Questionnaire dated the
Closing Date and executed by an Authorized Officer of each Credit Party,
together with all attachments contemplated thereby, including (A) the
results of a recent search, by a Person reasonably satisfactory to
Collateral Agent, of all effective UCC financing statements made with
respect to any property, the creation of security interests in which is
governed by the UCC, of any Credit Party in the jurisdictions specified
in the Collateral Questionnaire, together with copies of all such
filings disclosed by such search, and (B) UCC termination statements
duly executed by all applicable Persons for filing in all applicable
jurisdictions as may be necessary to terminate any effective UCC
financing statements disclosed in such search (other than any such
financing statements in respect of Permitted Liens); and
(iii) opinions of counsel (which counsel shall reasonably
be satisfactory to Collateral Agent) with respect to the creation and
perfection of the security interests in favor of Collateral Agent in
such Collateral and such other matters governed by the laws of each
jurisdiction in which any Credit Party or any such Collateral is located
as Collateral Agent may reasonably request, in each case in form and
substance reasonably satisfactory to Collateral Agent.
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(n) Collateral Matters. Each of the Administrative Agent and
the Collateral Agent shall have received evidence that each Credit Party shall
have taken or caused to be taken any other action, executed and delivered or
caused to be executed and delivered any other agreement, document and
instrument and made or caused to be made any other filing and recording (other
than as set forth herein) reasonably required by Collateral Agent.
(o) Financial Statements; Projections. Lenders shall have
received from Holdings (i) the Historical Financial Statements, (ii) pro forma
consolidated and consolidating balance sheets of Holdings and its Subsidiaries
as at the Closing Date, and reflecting the consummation of the Merger, the
related financings and the other transactions contemplated by the Credit
Documents to occur on or prior to the Closing Date, which pro forma financial
statements shall be in form and substance satisfactory to Administrative Agent
and Syndicated Agent, (iii) the Projections, and (iv) if the Closing Date has
not occurred on or prior to August 15, 2002, a certificate of the Chief
Financial Officer of Holdings certifying that the Consolidated Adjusted EBITDA
for the four Fiscal Quarters ended on June 30, 2002 is not less than $114.2
million determined on a pro forma basis after giving effect to the Merger, the
related financings and the other transactions contemplated by the Related
Agreements to occur on or prior to the Closing Date.
(p) Evidence of Insurance. Each of Syndication Agent and
Administrative Agent shall have received a certificate from Company's insurance
broker or other evidence satisfactory to it that all insurance required to be
maintained pursuant to Section 5.5 is in full force and effect and that
Administrative Agent, for the benefit of Lenders has been named as additional
insured and loss payee thereunder to the extent required under Section 5.5.
(q) Opinions of Counsel to Credit Parties. Lenders and their
respective counsel shall have received originally executed copies of the
favorable written opinions of Fried, Frank, Harris, Shriver & Jacobson, counsel
for Credit Parties, in the form of Exhibit D and as to such other matters as
Administrative Agent or Syndication Agent may reasonably request, dated as of
the Closing Date and otherwise in form and substance reasonably satisfactory to
each of Administrative Agent and Syndication Agent (and each Credit Party
hereby instructs such counsel to deliver such opinions to Agents and Lenders).
(r) Opinions of Counsel to Syndication Agent. Lenders shall
have received originally executed copies of one or more favorable written
opinions of Sullivan & Cromwell, counsel to Syndication Agent, dated as of the
Closing Date, in form and substance reasonably satisfactory to each of
Syndication Agent and Administrative Agent.
(s) Fees. Company shall have paid to the Agents, the fees
payable on the Closing Date referred to in Section 2.11(e).
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(t) Solvency Certificate; Solvency Appraisal. On the Closing
Date, Syndication Agent and Administrative Agent shall have received (i) a
Solvency Certificate from the Chief Financial Officer of Holdings on behalf of
Company and (ii) an opinion from an independent valuation consultant
satisfactory to Syndication Agent and Administrative Agent, each dated the
Closing Date and addressed to Syndication Agent, Administrative Agent and
Lenders, and in form, scope and substance satisfactory to Syndication Agent and
Administrative Agent, with appropriate attachments and demonstrating that after
giving effect to the consummation of the Merger, the related financings and the
other transactions contemplated by the Related Documents to occur on or prior
to the Closing Date, Company and its Subsidiaries are and will be Solvent.
(u) Closing Date Certificate. Holdings and Company shall have
delivered to Syndication Agent and Administrative Agent an originally executed
Closing Date Certificate, together with all attachments thereto.
(v) Closing Date. Lenders shall have made the Term Loan to
Company on or before August 31, 2002.
(w) No Litigation. The representations and warranties set
forth in Sections 4.13 and 6.4 of the Merger Agreement (subject to the
exemptions and qualifications set forth therein) shall be true and correct as
of the Closing Date or compliance therewith as of the Closing Date shall have
been waived with the prior approval of Syndication Agent and Administrative
Agent.
(x) Completion of Proceedings. All partnership, corporate and
other proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Administrative Agent or Syndication Agent and its counsel shall
be satisfactory in form and substance to Administrative Agent and Syndication
Agent and such counsel, and Administrative Agent, Syndication Agent and such
counsel shall have received all such counterpart originals or certified copies
of such documents as Administrative Agent or Syndication Agent may reasonably
request.
Each Lender, by delivering its signature page to this Agreement and funding a
Loan on the Closing Date, shall be deemed to have acknowledged receipt of, and
consented to and approved, each Credit Document and each other document
required to be approved by any Agent, Requisite Lenders or Lenders, as
applicable on the Closing Date.
3.2. CONDITIONS TO EACH CREDIT EXTENSION.
(a) Conditions Precedent. The obligation of each Lender to
make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit
Date, including the Effective Date, are subject to the satisfaction, or waiver
in accordance with Section 10.5, of the following conditions precedent:
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(i) Administrative Agent shall have received a fully
executed and delivered Funding Notice or Issuance Notice, as the case
may be;
(ii) after making the Credit Extensions requested on such
Credit Date, the Total Utilization of Revolving Commitments shall not
exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and
warranties contained herein and in the other Credit Documents shall be
true and correct in all material respects on and as of that Credit Date
to the same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to an
earlier date, in which case such representations and warranties shall
have been true and correct in all material respects on and as of such
earlier date;
(iv) as of such Credit Date, no event shall have occurred
and be continuing or would result from the consummation of the
applicable Credit Extension that would constitute an Event of Default or
a Default;
(v) on or before the date of issuance of any Letter of
Credit, Administrative Agent shall have received all other information
required by the applicable Issuance Notice, and such other documents or
information as Issuing Bank may reasonably require in connection with
the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection
with the financing of a Permitted Acquisition (other than a Revolving
Loan on the Landis Acquisition Closing Date in an aggregate principal
amount not to exceed $10,000,000 used to pay Landis Acquisition
Financing Requirements), if (A) the aggregate amount of Permitted
Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of
Permitted Acquisition Expenses for Permitted Acquisitions for the
previous four Fiscal Quarters (together with any Permitted Acquisition
agreed to and not yet consummated) exceeds $20,000,000, then the Chief
Financial Officer of Holdings shall have delivered a Compliance
Certificate representing and warranting and otherwise demonstrating to
the satisfaction of Administrative Agent that, as of such Credit Date,
the Leverage Ratio as of the last day of the most recent Fiscal Quarter
for which financial statements have been delivered to the Lenders
pursuant to Section 5.1(b), determined on a pro forma basis in
accordance with Section 6.8(d) after giving effect to the proposed
Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal
Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in
respect of subsequent Fiscal Quarters.
Any Agent or Requisite Lenders shall be entitled, but not
obligated to, request and receive, prior to the making of any Credit Extension,
additional information reasonably satisfactory to the requesting party
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confirming the satisfaction of any of the foregoing if, in the good faith
judgment of such Agent or Requisite Lender such request is warranted under the
circumstances.
(b) Notices. Any Notice shall be executed by an Authorized
Officer in a writing delivered to Administrative Agent. In lieu of delivering
a Notice, Company may give Administrative Agent telephonic notice by the
required time of any proposed borrowing, conversion/continuation or issuance of
a Letter of Credit, as the case may be; provided each such notice shall be
promptly confirmed in writing by delivery of the applicable Notice to
Administrative Agent on or before the applicable date of borrowing,
continuation/conversion or issuance. Neither Administrative Agent nor any
Lender shall incur any liability to Company in acting upon any telephonic
notice referred to above that Administrative Agent believes in good faith to
have been given by a duly authorized officer or other person authorized on
behalf of Company or for otherwise acting in good faith.
3.3. CONDITIONS TO EFFECTIVENESS. This Agreement and the obligation of
each Term Loan Lender to make a Term Loan in the amount of such Lender's Term
Loan Commitment as set forth in Annex A-1 of this Agreement on the Effective
Date shall become effective on August [ ], 2004 (the "EFFECTIVE DATE") only
upon:
(a) the execution and delivery of counterpart signature pages
hereto by (i) Term Loan Lenders holding 100% of the Term Loan Commitments, and
Lenders having Revolving Exposure as of the date hereof in excess of 50% the
aggregate Revolving Exposure of all Lenders and (ii) each Credit Party;
(b) the satisfaction of the conditions precedent set forth in
Section 3.2 in respect of the making of the Term Loans on the Effective Date.
(c) opinion of Fried Frank Harris Shriver & Jacobson LLP in
respect of this Agreement; and
(d) payment on or before the Effective Date of all fees to
Agents referred to in Section 2.12(e).
If for any reason this Agreement does not become effective by
11:59 p.m. on the Effective Date, this Agreement shall be void ab initio and
the Existing Agreement shall continue in full force and effect in accordance
with its terms;
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3.4. EFFECT OF AGREEMENT ON OTHER CREDIT DOCUMENTS. By its signature
on this Agreement, each Credit Party acknowledges and agrees that this
Agreement is a valid amendment of the Existing Agreement made in accordance
with the terms thereof and binding against such Credit Party and that each
Credit Document (other than this Agreement) shall continue to be valid and
binding against such Credit Party and its assets and properties as of and after
the Effective Date (with any references to the Existing Agreement in any such
Credit Document construed as references to this Agreement).
SECTION 4. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders and Issuing Bank to enter into this
Agreement and to make each Credit Extension to be made thereby, each Credit
Party represents and warrants to each Lender and Issuing Bank, on the Effective
Date and on each Credit Date, that the following statements are true and
correct, except to the extent any representation or warranty relates to a
specific date, in which case such statement shall be true and correct as of
such specific date.
4.1. ORGANIZATION; REQUISITE POWER AND AUTHORITY; QUALIFICATION. Each
of Holdings and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization as identified
in Schedule 4.1, (b) has all requisite power and authority to own and operate
its properties, to carry on its business as now conducted and as proposed to be
conducted, to enter into the Credit Documents to which it is a party and to
carry out the transactions contemplated thereby, and (c) is qualified to do
business and in good standing in every jurisdiction where its assets are
located and wherever necessary to carry out its business and operations, except
in jurisdictions where the failure to be so qualified or in good standing has
not had, and could not reasonably be expected to have, a Material Adverse
Effect.
4.2. CAPITAL STOCK AND OWNERSHIP. The Capital Stock of each of
Holdings and its Subsidiaries has been duly authorized and validly issued and
is fully paid and non-assessable. Except as set forth on Schedule 4.2, as of
the date hereof, there is no existing option, warrant, call, right, commitment
or other agreement to which Holdings or any of its Subsidiaries is a party
requiring, and there is no Capital Stock of Holdings or any of its Subsidiaries
outstanding which upon conversion or exchange would require, the issuance by
Holdings or any of its Subsidiaries of any additional Capital Stock of Holdings
or any of its Subsidiaries or other Securities convertible into, exchangeable
for or evidencing the right to subscribe for or purchase, Capital Stock of
Holdings or any of its Subsidiaries. Schedule 4.2 correctly sets forth the
ownership interest of Holdings and each of its Subsidiaries in their respective
Subsidiaries as of the Effective Date.
4.3. DUE AUTHORIZATION. The transactions contemplated by the Credit
Documents are within the corporate powers of each Credit Party and the
execution, delivery and performance of the Credit Documents have been duly
authorized by all necessary action on the part of each Credit Party that is a
party thereto.
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4.4. GUARANTOR SUBSIDIARIES. Schedule 4.4 correctly sets forth, as of
the Effective Date, all of Company's Guarantor Subsidiaries who are parties to
this Agreement.
4.5. NO CONFLICT. The execution, delivery and performance by Credit
Parties of the Credit Documents to which they are parties and the consummation
of the transactions contemplated by the Credit Documents do not and will not
(a) violate any provision of any law or any governmental rule or regulation
applicable to Holdings or any of its Subsidiaries, any of the Organizational
Documents of Holdings or any of its Subsidiaries, or any order, judgment or
decree of any court or other agency of government binding on Holdings or any of
its Subsidiaries except to the extent such violation, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect;
(b) conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any Contractual Obligation of Holdings
or any of its Subsidiaries except to the extent such conflict, breach or
default, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect; (c) result in or require the creation or
imposition of any Lien upon any of the properties or assets of Holdings or any
of its Subsidiaries (other than any Liens created under any of the Credit
Documents in favor of Collateral Agent, on behalf of Secured Parties) except
to the extent that the creation or imposition of any such Liens, individually
or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect; or (d) require any approval of stockholders, members or
partners or any approval or consent of any Person under any Contractual
Obligation of Holdings or any of its Subsidiaries, except for such approvals or
consents which will be obtained on or before the Effective Date and disclosed
in writing to Lenders and except for any such approvals or consents the failure
of which to obtain, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
4.6. GOVERNMENTAL CONSENTS. The execution, delivery and performance by
Credit Parties of the Credit Documents to which they are parties and the
consummation of the transactions contemplated by the Credit Documents do not
and will not require any registration with, consent or approval of, or notice
to, or other action to, with or by, any Governmental Authority, except for such
registrations, consents, approvals, notices or actions the failure of which to
obtain, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
4.7. BINDING OBLIGATION. Each Credit Document has been duly executed
and delivered by each Credit Party that is a party thereto and is the legally
valid and binding obligation of such Credit Party, enforceable against such
Credit Party in accordance with its respective terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable principles relating
to enforceability.
4.8. HISTORICAL FINANCIAL STATEMENTS. The Historical Financial
Statements were prepared in conformity with GAAP and fairly present, in all
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material respects, the financial position, on a consolidated basis, of the
Persons described in such financial statements as at the respective dates
thereof and the results of operations and cash flows, on a consolidated basis,
of the entities described therein for each of the periods then ended, subject,
in the case of any such unaudited financial statements, to changes resulting
from audit and normal year-end adjustments. As of the Effective Date, neither
Holdings nor any of its Subsidiaries has any contingent liability or liability
for taxes, long-term lease or unusual forward or long-term commitment that is
not reflected in the Historical Financial Statements or the notes thereto and
which in any such case is material in relation to the business, operations,
properties, assets, condition (financial or otherwise) or prospects of Holdings
and any of its Subsidiaries taken as a whole.
4.9. PROJECTIONS. On and as of the Effective Date, the Projections of
Holdings and its Subsidiaries for the period beginning with Fiscal Year 2003
through and including Fiscal Year 2010 (the "PROJECTIONS") are based on good
faith estimates and reasonable assumptions made by the management of Holdings;
provided, the Projections are not to be viewed as facts and that actual results
during the period or periods covered by the Projections may differ from such
Projections and that the differences may be material; provided further, as of
the Effective Date, management of Holdings believed that the Projections were
reasonable and attainable.
4.10. NO MATERIAL ADVERSE CHANGE. Since December 27, 2003, no event,
circumstance or change has occurred that has caused or evidences, either in any
case or in the aggregate, a continuing Material Adverse Effect.
4.11. ADVERSE PROCEEDINGS, ETC. There are no Adverse Proceedings,
individually or in the aggregate, that could reasonably be expected to have a
Material Adverse Effect. Neither Holdings nor any of its Subsidiaries (a) is
in violation of any applicable laws (including Environmental Laws) that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, or (b) is subject to or in default with respect to any
final judgments, writs, injunctions, decrees, rules or regulations of any court
or any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
4.12. PAYMENT OF TAXES. Except as otherwise permitted under Section
5.3, all material tax returns and reports of Holdings and its Subsidiaries
required to be filed by any of them have been timely filed, and all taxes shown
on such tax returns to be due and payable and all material assessments, fees
and other governmental charges upon Holdings and its Subsidiaries and upon
their respective properties, assets, income, businesses and franchises which
are due and payable have been paid when due and payable. Holdings knows of no
proposed tax assessment against Holdings or any of its Subsidiaries which is
not being actively contested by Holdings or such Subsidiary in good faith and
by appropriate proceedings; provided, such reserves or other appropriate
provisions, if any, as shall be required in conformity with GAAP shall have
been made or provided therefor.
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4.13. PROPERTIES.
(a) Title. Each of Holdings and its Subsidiaries has (i) good,
sufficient and legal title to (in the case of fee interests in real property),
(ii) valid leasehold interests in (in the case of leasehold interests in real
or personal property), and (iii) good title to (in the case of all other
personal property), all of their respective properties and assets reflected in
their respective Historical Financial Statements referred to in Section 4.8 and
in the most recent financial statements delivered pursuant to Section 5.1, in
each case except for assets disposed of since the date of such financial
statements in the ordinary course of business of Company and its Subsidiaries
or as otherwise permitted under Section 6.9. Except as permitted by this
Agreement, all such properties and assets are free and clear of Liens.
(b) Real Estate. As of the Effective Date, Schedule 4.13
contains a true, accurate and complete list of (i) all Real Estate Assets, and
(ii) all leases, subleases or assignments of leases (together with all
amendments, modifications, supplements, renewals or extensions of any thereof)
affecting each Real Estate Asset of any Credit Party, regardless of whether
such Credit Party is the landlord or tenant (whether directly or as an assignee
or successor in interest) under such lease, sublease or assignment. Each
agreement listed in clause (ii) of the immediately preceding sentence is in
full force and effect and Holdings does not have knowledge of any default that
has occurred and is continuing thereunder, and each such agreement constitutes
the legally valid and binding obligation of each applicable Credit Party,
enforceable against such Credit Party in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles.
4.14. ENVIRONMENTAL MATTERS. Except as set forth on Schedule 4.14,
(i) neither Holdings nor any of its Subsidiaries nor any of their respective
Facilities or operations are subject to any outstanding written order, consent
decree or settlement agreement with any Person relating to any Environmental
Law, any Environmental Claim, or any Hazardous Materials Activity, (ii) there
are and, to each of Holdings' and its Subsidiaries' knowledge, have been, no
conditions, occurrences, or Hazardous Materials Activities which could
reasonably be expected to form the basis of an Environmental Claim against
Holdings or any of its Subsidiaries, (iii) neither Holdings nor any of its
Subsidiaries has received any letter or request for information under Section
104 of the Comprehensive Environmental Response, Compensation, and Liability
Act (42 U.S.C. {section} 9604) or any comparable state law, in each of cases
(i), (ii) and (iii) that, if resolved adversely, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
Compliance with all current or reasonably foreseeable future requirements
pursuant to or under Environmental Laws could not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect. No event or
condition has occurred or is occurring with respect to Holdings or any of its
Subsidiaries relating to any applicable Environmental Law, any Release of
Hazardous Materials, or any Hazardous Materials Activity which individually or
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in the aggregate has had, or could reasonably be expected to have, a Material
Adverse Effect, other than the events and conditions described on Schedule 4.14
as existing on or prior to the Effective Date.
4.15. NO DEFAULTS. Neither Holdings nor any of its Subsidiaries is in
default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any of its Contractual
Obligations, and no condition exists which, with the giving of notice or the
lapse of time or both, could constitute such a default, except where the
consequences, direct or indirect, of such default or defaults, if any, could
not reasonably be expected to have a Material Adverse Effect.
4.16. GOVERNMENTAL REGULATION. Neither Holdings nor any of its
Subsidiaries is subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act or the Investment Company Act of 1940 or
under any other federal or state statute or regulation which may limit its
ability to incur Indebtedness or which may otherwise render all or any portion
of the Obligations unenforceable. Neither Holdings nor any of its Subsidiaries
is a "registered investment company" or a company "controlled" by a "registered
investment company" or a "principal underwriter" of a "registered investment
company" as such terms are defined in the Investment Company Act of 1940.
4.17. MARGIN STOCK. Neither Holdings nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any Margin Stock.
No part of the proceeds of the Loans made to such Credit Party will be used to
purchase or carry any such margin stock or to extend credit to others for the
purpose of purchasing or carrying any such margin stock or for any purpose that
violates, or is inconsistent with, the provisions of Regulation T, U or X of
the Board of Governors of the Federal Reserve System.
4.18. EMPLOYEE MATTERS. Neither Holdings nor any of its Subsidiaries is
engaged in any unfair labor practice that could reasonably be expected to have
a Material Adverse Effect. There is (a) no unfair labor practice complaint
pending against Holdings or any of its Subsidiaries, or to the best knowledge
of Holdings and Company, threatened against any of them before the National
Labor Relations Board and no grievance or arbitration proceeding arising out of
or under any collective bargaining agreement that is so pending against
Holdings or any of its Subsidiaries or to the best knowledge of Holdings and
Company, threatened against any of them, (b) no strike or work stoppage in
existence or threatened involving Holdings or any of its Subsidiaries, and (c)
to the best knowledge of Holdings and Company, no union representation question
existing with respect to the employees of Holdings or any of its Subsidiaries
and, to the best knowledge of Holdings and Company, no union organization
activity that is taking place, except (with respect to any matter specified in
clause (a), (b) or (c) above, either individually or in the aggregate) such as
is not reasonably likely to have a Material Adverse Effect.
4.19. EMPLOYEE BENEFIT PLANS. Except as, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect,
85
(i) Holdings, each of its Subsidiaries and each of their respective ERISA
Affiliates are in substantial compliance with all applicable provisions and
requirements of ERISA and the Internal Revenue Code and the regulations and
published interpretations thereunder with respect to each Employee Benefit
Plan, and have substantially performed all their obligations under each
Employee Benefit Plan, (ii) each Employee Benefit Plan which is intended to
qualify under Section 401(a) of the Internal Revenue Code has received a
favorable determination letter from the Internal Revenue Service indicating
that such Employee Benefit Plan is so qualified and nothing has occurred
subsequent to the issuance of such determination letter which would cause such
Employee Benefit Plan to lose its qualified status, (iii) no liability to the
PBGC (other than required premium payments) has been or is expected to be
incurred by Holdings, any of its Subsidiaries or any of their ERISA Affiliates,
(iv) no ERISA Event has occurred or is reasonably expected to occur, and
(v) Holdings, each of its Subsidiaries and each of their ERISA Affiliates have
complied with the requirements of Section 515 of ERISA with respect to each
Multiemployer Plan and are not in material "default" (as defined in Section
4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan.)
4.20. SOLVENCY. Each Credit Party is and, upon the incurrence of any
Obligation by such Credit Party on any date on which this representation and
warranty is made and after giving effect to the provisions of Section 7.2, will
be, Solvent.
4.21. [Intentionally Omitted]
4.22. COMPLIANCE WITH STATUTES, ETC. Each of Holdings and its
Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all Governmental
Authorities, in respect of the conduct of its business and the ownership of
its property (including compliance with all applicable Environmental Laws with
respect to any Real Estate Asset or governing its business and the requirements
of any permits issued under such Environmental Laws with respect to any such
Real Estate Asset or the operations of Holdings or any of its Subsidiaries),
except such non-compliance that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
4.23. DISCLOSURE. No representation or warranty of any Credit Party
contained in any Credit Document or in any other documents, certificates or
written statements furnished to Lenders by or on behalf of Holdings or any of
its Subsidiaries for use in connection with the transactions contemplated
hereby at the time such representation or warranty is made contains any untrue
statement of a material fact or omits to state a material fact (known to
Holdings or Company, in the case of any document not furnished by either of
them) necessary in order to make the statements contained herein or therein not
misleading in light of the circumstances in which the same were made. Any
projections and pro forma financial information contained in such materials are
based upon good faith estimates and assumptions believed by Holdings or Company
to be reasonable at the time made, it being recognized by Lenders that such
projections as to future events are not to be viewed as facts and that actual
86
results during the period or periods covered by any such projections may differ
materially from the projected results. There are no facts known (or which
should upon the reasonable exercise of diligence be known) to Holdings or
Company (other than matters of a general economic nature) that, individually or
in the aggregate, could reasonably be expected to result in a Material Adverse
Effect and that have not been disclosed herein or in such other documents,
certificates and statements furnished to Lenders for use in connection with the
transactions contemplated hereby.
SECTION 5. AFFIRMATIVE COVENANTS
Each Credit Party covenants and agrees that so long as any
Commitment is in effect and until payment in full of all Obligations and
cancellation or expiration of all Letters of Credit, each Credit Party shall
perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 5.
5.1. FINANCIAL STATEMENTS AND OTHER REPORTS. Holdings will deliver to
Administrative Agent and Lenders:
(a) Monthly Reports. Solely to the Administration Agent, (and
to other Lenders upon request) as soon as available, and in any event within
30 days after the end of each month ending after the Closing Date, the
consolidated balance sheet of Holdings and its Subsidiaries as at the end of
such month and the related consolidated statements of income, stockholders'
equity and cash flows of Holdings and its Subsidiaries for such month and for
the period from the beginning of the then current Fiscal Year to the end of
such month, setting forth in each case in comparative form the corresponding
figures for the corresponding periods of the previous Fiscal Year and the
corresponding figures from the Financial Plan for the current Fiscal Year, to
the extent prepared on a monthly basis, all in reasonable detail, together with
a Financial Officer Certification and a Narrative Report with respect thereto;
(b) Quarterly Financial Statements. As soon as available, and
in any event within 45 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year, the consolidated and consolidating balance sheets
of Holdings and its Subsidiaries as at the end of such Fiscal Quarter and the
related consolidated (and with respect to sales and EBITDA, statements of
income, consolidating) statements of income, stockholders' equity and cash
flows of Holdings and its Subsidiaries for such Fiscal Quarter and for the
period from the beginning of the then current Fiscal Year to the end of such
Fiscal Quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous Fiscal Year
and the corresponding figures from the Financial Plan for the current Fiscal
Year, all in reasonable detail, together with a Financial Officer Certification
and a Narrative Report with respect thereto;
(c) Annual Financial Statements. As soon as available, and in
any event within 90 days after the end of each Fiscal Year, (i) the
consolidated and consolidating balance sheets of Holdings and its Subsidiaries
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as at the end of such Fiscal Year and the related consolidated (and with
respect to sales, EBITDA and statements of income, consolidating) statements of
income, stockholders' equity and cash flows of Holdings and its Subsidiaries
for such Fiscal Year, setting forth in each case in comparative form the
corresponding figures for the previous Fiscal Year and the corresponding
figures from the Financial Plan for the Fiscal Year covered by such financial
statements, in reasonable detail, together with a Financial Officer
Certification and a Narrative Report with respect thereto; and (ii) with
respect to such consolidated financial statements a report thereon of Ernst &
Young or other independent certified public accountants of recognized national
standing selected by Holdings, and reasonably satisfactory to Administrative
Agent (which report shall be unqualified as to going concern and scope of
audit, and shall state that such consolidated financial statements fairly
present, in all material respects, the consolidated financial position of
Holdings and its Subsidiaries as at the dates indicated and the results of
their operations and their cash flows for the periods indicated in conformity
with GAAP applied on a basis consistent with prior years (except as otherwise
disclosed in such financial statements) and that the examination by such
accountants in connection with such consolidated financial statements has been
made in accordance with generally accepted auditing standards) together (to the
extent not inconsistent with the pronouncements of the Institute of Certified
Public Accountants and FASB) with a written statement by such independent
certified public accountants stating whether, in connection with their audit
examination, any failure to comply with the terms, covenants, provisions or
conditions of Article 5 or Article 6 (insofar as they relate to the accounting
matters) has come to their attention and, if such a failure to comply has come
to their attention, specifying the nature and period of existence thereof;
(d) Compliance Certificate. Together with each delivery of
financial statements of Holdings and its Subsidiaries pursuant to Sections
5.1(b) and 5.1(c), a duly executed and completed Compliance Certificate;
(e) Statements of Reconciliation after Change in Accounting
Principles. If, as a result of any change in accounting principles and
policies from those used in the preparation of the Historical Financial
Statements, the consolidated financial statements of Holdings and its
Subsidiaries delivered pursuant to Section 5.1(b) or 5.1(c) will differ in any
material respect from the consolidated financial statements that would have
been delivered pursuant to such subdivisions had no such change in accounting
principles and policies been made, then, together with the first delivery of
such financial statements after such change, one or more a statements of
reconciliation for all such prior financial statements in form and substance
satisfactory to Administrative Agent;
(f) Notice of Default. Promptly upon any Authorized Officer of
Holdings or Company obtaining knowledge (i) of any condition or event that
constitutes a Default or an Event of Default or that notice has been given to
Holdings or Company with respect thereto; (ii) that any Person has given any
notice to Holdings or any of its Subsidiaries or taken any other action with
respect to any event or condition set forth in Section 8.1(b); or (iii) of the
occurrence of any events or changes that have caused or evidence, individually
88
or in the aggregate, a Material Adverse Effect, a certificate of its Authorized
Officers specifying the nature and period of existence of such condition, event
or change, or specifying the notice given and action taken by any such Person
and the nature of such claimed Event of Default, Default, default, event or
condition, and what action Company has taken, is taking and proposes to take
with respect thereto;
(g) Notice of Litigation. Promptly upon any Authorized Officer
of Holdings or Company obtaining knowledge of (i) the institution of, or
non-frivolous written threat of, any Adverse Proceeding not previously
disclosed in writing by Company to Lenders, or (ii) any material development in
any Adverse Proceeding, in each of the cases (i) or (ii) which if adversely
determined, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect, or which seeks to enjoin or otherwise prevent
the consummation of, or to recover any damages or obtain relief as a result of,
the transactions contemplated hereby, written notice thereof together with such
other information as may reasonably be available to Holdings or Company to
enable Lenders and their counsel to evaluate such matters;
(h) ERISA. (i) Promptly upon becoming aware of the occurrence
of or forthcoming occurrence of any ERISA Event, a written notice specifying
the nature thereof, what action Holdings, any of its Subsidiaries or any of
their respective ERISA Affiliates has taken, is taking or proposes to take with
respect thereto and, when known, any action taken or threatened by the Internal
Revenue Service, the Department of Labor or the PBGC with respect thereto; and
(ii) upon request in writing, with reasonable promptness, copies of (1) each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
filed by Holdings, any of its Subsidiaries or any of their respective ERISA
Affiliates with the Internal Revenue Service with respect to each Pension Plan;
(2) all notices received by Holdings, any of its Subsidiaries or any of their
respective ERISA Affiliates from a Multiemployer Plan sponsor concerning an
ERISA Event; and (3) copies of such other documents or governmental reports or
filings relating to any Employee Benefit Plan as Administrative Agent shall
reasonably request;
(i) Financial Plan. As soon as practicable and in any event no
later than thirty (30) days prior to the beginning of each Fiscal Year, a
consolidated plan and financial forecast for such Fiscal Year and each Fiscal
Year (or portion thereof) through the final maturity date of the Loans (a
"FINANCIAL PLAN"), including (i) a forecasted consolidated balance sheet and
forecasted consolidated statements of income and cash flows of Holdings and its
Subsidiaries for each such Fiscal Year, together with a statement of
forecasted compliance with the financial covenants in Section 6.8 (including
estimates of the information required in Annex A to the form of Compliance
Certificate attached hereto) for each such Fiscal Year and an explanation of
the assumptions on which such forecasts are based, and (ii) forecasted
consolidated statements of income and cash flows of Holdings and its
Subsidiaries for each month of each such Fiscal Year, together, in each cases
(i) and (ii), with an explanation of the assumptions on which such forecasts
are based all in form and substance reasonably satisfactory to Agents;
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(j) Insurance Report. As soon as practicable and in any event
by the last day of each Fiscal Year, a report in form and substance
satisfactory to Administrative Agent outlining all material insurance coverage
maintained as of the date of such report by Holdings and its Subsidiaries and
all material insurance coverage planned to be maintained by Holdings and its
Subsidiaries in the immediately succeeding Fiscal Year;
(k) Notice of Change in Board of Directors. With reasonable
promptness, written notice of any change in the board of directors (or similar
governing body) of Holdings or Company;
(l) Environmental Disclosure. The materials and information
required to be delivered under Section 5.9(a), as and when required;
(m) Information Regarding Collateral. Information required to
be delivered pursuant to Section 3.1(c) of the Pledge and Security Agreement.
(n) Other Information. Promptly upon their becoming available,
(i) copies of (A) all financial statements, reports, notices and proxy
statements sent or made available generally by Holdings to its security holders
acting in such capacity or by any Subsidiary of Holdings to its security
holders other than Holdings or another Subsidiary of Holdings, (B) all regular
and periodic reports and all registration statements and prospectuses, if any,
filed by Holdings or any of its Subsidiaries with any securities exchange or
with the Securities and Exchange Commission or any governmental or private
regulatory authority, (C) all press releases and other statements made
available generally by Holdings or any of its Subsidiaries to the public
concerning material developments in the business of Holdings or any of its
Subsidiaries, and (ii) such other information and data with respect to Holdings
or any of its Subsidiaries as from time to time may reasonably be requested by
Administrative Agent or any Lender.
5.2. EXISTENCE. Except as otherwise permitted under Section 6.9, each
Credit Party will, and will cause each of its Subsidiaries to, at all times
preserve and keep in full force and effect its existence and all rights and
franchises, licenses and permits material to its business; provided, no Credit
Party or any of its Subsidiaries shall be required to preserve any such
existence, right or franchise, licenses and permits if such Person's board of
directors (or similar governing body) shall determine that the preservation
thereof is no longer desirable in the conduct of the business of such Person,
and that the loss thereof could not reasonably be expected to have a Material
Adverse Effect.
5.3. PAYMENT OF TAXES AND CLAIMS. Each Credit Party will, and will
cause each of its Subsidiaries to, pay all Taxes imposed upon it or any of its
properties or assets or in respect of any of its income, businesses or
franchises before any penalty or fine accrues thereon, and all claims
(including claims for labor, services, materials and supplies) for sums that
have become due and payable and that by law have or may become a Lien upon any
of its properties or assets, prior to the time when any penalty or fine shall
be incurred with respect thereto; provided, no such Tax or claim need be paid
if it is being contested in good faith by appropriate proceedings promptly
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instituted and diligently conducted, so long as (a) adequate reserve or other
appropriate provision, as shall be required in conformity with GAAP shall have
been made therefor, and (b) in the case of a charge or claim which has or may
become a Lien against any of the Collateral, such contest proceedings
conclusively operate to stay the sale of any portion of the Collateral to
satisfy such Tax or claim.
5.4. MAINTENANCE OF PROPERTIES. Each Credit Party will, and will cause
each of its Subsidiaries to, maintain or cause to be maintained in good repair,
working order and condition, ordinary wear and tear excepted, all material
properties used or useful in the business of Holdings and its Subsidiaries and
from time to time will make or cause to be made all appropriate repairs,
renewals and replacements thereof.
5.5. INSURANCE. Holdings will maintain or cause to be maintained, with
financially sound and reputable insurers, such public liability insurance,
third party property damage insurance, business interruption insurance and
casualty insurance with respect to liabilities, losses or damage in respect of
the assets, properties and businesses of Holdings and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by Persons of
established reputation engaged in similar businesses, in each case in such
amounts (giving effect to self-insurance), with such deductibles, covering such
risks and otherwise on such terms and conditions as shall be customary for such
Persons. Without limiting the generality of the foregoing, Holdings will
maintain or cause to be maintained (a) flood insurance with respect to each
Flood Hazard Property that is located in a community that participates in the
National Flood Insurance Program, in each case in compliance with any
applicable regulations of the Board of Governors of the Federal Reserve System,
and (b) first party, property coverage insurance on the Collateral under such
policies of insurance, with such insurance companies, in such amounts, with
such deductibles, and covering such risks as are at all times carried or
maintained under similar circumstances by Persons of established reputation
engaged in similar businesses. Each such policy of insurance shall (i) name
Administrative Agent, on behalf of Lenders as an additional insured thereunder
as its interests may appear and (ii) in the case of each casualty insurance
policy, contain a loss payable clause or endorsement, satisfactory in form and
substance to Administrative Agent, that names Administrative Agent, on behalf
of Lenders as the loss payee thereunder and provides for at least 30 days'
prior written notice to Administrative Agent of any modification or
cancellation of such policy.
5.6. INSPECTIONS. Each Credit Party will, and will cause each of its
Subsidiaries to, permit any authorized representatives designated by any Agent
or Lender to visit and inspect any of the properties of any Credit Party and
any of its respective Subsidiaries, to inspect and copy its and their financial
and accounting records, and to discuss its and their affairs, finances and
accounts with its and their officers and independent public accountants, all
upon reasonable notice and at such reasonable times during normal business
hours and as often as may reasonably be requested. If such visit and
inspection occurs at a time when no Default or Event of Default has occurred
and is continuing, such visit and inspection shall be at the expense of such
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Lender and, if such visit and inspection occur at a time when a Default or
Event of Default has occurred and is continuing, such visit and inspection
shall be paid by Company pursuant to Section 10.2. By this provision, each
Credit Party authorizes its independent public accountants to discuss the
affairs, finances and accounts of such Credit Party and its Subsidiaries,
provided, such Credit Party may, if its so chooses, be present and participate
in any such discussion.
5.7. LENDERS MEETINGS. Holdings and Company will, upon the request of
Administrative Agent or Requisite Lenders, participate in a meeting of
Administrative Agent and Lenders once during each Fiscal Year to be held at
Company's corporate offices (or at such other location as may be agreed to by
Company and Administrative Agent) at such time as may be agreed to by Company
and Administrative Agent.
5.8. COMPLIANCE WITH LAWS. Each Credit Party will comply, and shall
cause each of its Subsidiaries and all other Persons, if any, on or occupying
any Facilities to comply, with the requirements of all applicable laws, rules,
regulations and orders of any governmental authority (including all
Environmental Laws), noncompliance with which could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
5.9. ENVIRONMENTAL.
(a) Environmental Disclosure. Holdings will deliver to
Administrative Agent and Lenders the following information and materials, in
each case to the extent that they relate to circumstances that, individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect:
(i) as soon as practicable following receipt thereof,
copies of all environmental audits, investigations, analyses and reports
whether prepared by personnel of Holdings or any of its Subsidiaries or
by independent consultants, governmental authorities or any other
Persons, with respect to significant environmental matters at any
Facility or with respect to any Environmental Claims;
(ii) promptly upon the occurrence thereof, written notice
describing in reasonable detail (A) any Release required to be reported
to any federal, state or local governmental or regulatory agency under
any applicable Environmental Laws, (B) any remedial action taken by
Holdings or any other Person in response to any Hazardous Materials
Activities and (C) Holdings or Company's discovery of any occurrence or
condition on any real property adjoining or in the vicinity of any
Facility that could cause such Facility or any part thereof to be
subject to any material restrictions on the ownership, occupancy,
transferability or use thereof under any Environmental Laws;
(iii) as soon as practicable following the sending or
receipt thereof by Holdings or any of its Subsidiaries, a copy of any
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and all written communications with respect to (A) any Environmental
Claims (B) any Release required to be reported to any federal, state or
local governmental or regulatory agency, and (C) any request for
information from any governmental agency that suggests such agency is
investigating whether Holdings or any of its Subsidiaries may be
potentially responsible for any Hazardous Materials Activity;
(iv) prompt written notice describing in reasonable detail
(A) any proposed acquisition of stock, assets, or property by Holdings
or any of its Subsidiaries that could reasonably be expected to expose
Holdings or any of its Subsidiaries to, or result in, Environmental
Claims or affect the ability of Holdings or any of its Subsidiaries to
maintain in full force and effect all Governmental Authorizations
required under any Environmental Laws for their respective operations
and (B) any proposed action to be taken by Holdings or any of its
Subsidiaries to modify current operations in a manner that could
reasonably be expected to subject Holdings or any of its Subsidiaries to
any additional obligations or requirements under any Environmental Laws;
and
(v) with reasonable promptness, such other documents and
information as from time to time may reasonably be requested by
Administrative Agent in relation to any matters disclosed pursuant to
this Section 5.9(a).
(b) Hazardous Materials Activities, Etc. Each Credit Party
shall promptly take, and shall cause each of its Subsidiaries promptly to take,
any and all actions necessary to (i) cure any violation of applicable
Environmental Laws by such Credit Party or its Subsidiaries and (ii) make an
appropriate response to any Environmental Claim against such Credit Party or
any of its Subsidiaries and discharge any obligations it may have to any Person
thereunder, in each of cases (i) and (ii) where failure to do so could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
5.10. SUBSIDIARIES. In the event that any Person becomes a Domestic
Subsidiary of Company, whether pursuant to a Permitted Acquisition or
otherwise, Company shall (a) promptly cause such Domestic Subsidiary to become
a Guarantor hereunder and a party to the Intercompany Subordination Agreement
and a Grantor under the Pledge and Security Agreement by executing and
delivering to Administrative Agent and Collateral Agent a Counterpart
Agreement, (b) promptly cause each Person holding Capital Stock of such
Domestic Subsidiary (whether or not a Credit Party) to take all of the actions
necessary to grant and to perfect a First Priority Lien in favor of Collateral
Agent for the benefit of the Secured Parties under the Pledge and Security
Agreement in respect of all such Capital Stock and (c) take all such actions
and execute and deliver, or cause to be executed and delivered, all such
documents, instruments, agreements, and certificates as are similar to those
described in Sections 3.1(b), 3.1(l), 3.1(m), 3.1(n) and 3.1(p) in respect of
any Collateral required to be secured for the benefit of Secured Parties under
the Pledge and Security Agreement. In the event that any Person becomes a
Foreign Subsidiary of Company, and Capital Stock of such Foreign Subsidiary is
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directly owned by Company or by any Domestic Subsidiary of Company, Company
shall, or shall cause such Domestic Subsidiary to, deliver, all such documents,
instruments, agreements, and certificates as are similar to those described in
Section 3.1(b), and Company shall take, or shall cause such Domestic Subsidiary
to take, all of the actions necessary to grant and to perfect a First Priority
Lien in favor of Collateral Agent for the benefit of Secured Parties under the
Pledge and Security Agreement in such Capital Stock. With respect to each such
Subsidiary, Company shall promptly send to Administrative Agent written notice
setting forth with respect to such Person (i) the date on which such Person
became a Subsidiary of Company, and (ii) all of the data required to be set
forth in Schedules 4.1 and 4.2 with respect to all Subsidiaries of Company;
provided, such written notice shall be deemed to supplement Schedule 4.1 and
4.2 for all purposes hereof.
5.11. ADDITIONAL MATERIAL REAL ESTATE ASSETS. In the event that any
Credit Party acquires a Material Real Estate Asset or any Real Estate Asset
becomes a Material Real Estate Asset and such interest has not otherwise been
made subject to the Lien of the Collateral Documents in favor of Collateral
Agent, for the benefit of Secured Parties, then such Credit Party,
contemporaneously with acquiring such Material Real Estate Asset or upon any
Real Estate Asset becoming a Material Real Estate Asset, shall take all such
actions and execute and deliver, or cause to be executed and delivered, all
such mortgages, documents, instruments, agreements, opinions and certificates
similar to those described in Sections 3.1(l), 3.1(m) and 3.1(n) with respect
to each such Material Real Estate Asset that Collateral Agent shall reasonably
request to create in favor of Collateral Agent, for the benefit of Secured
Parties, a valid and, subject to any filing and/or recording referred to
herein, perfected First Priority security interest in such Material Real Estate
Assets. In addition to the foregoing, Company shall, at the request of
Requisite Lenders, deliver, from time to time, to Administrative Agent such
appraisals as are required by law or regulation of Real Estate Assets with
respect to which Collateral Agent has been granted a Lien.
5.12. INTEREST RATE PROTECTION. As soon as reasonably practicable, and
in any event no later than 120 days following the Closing Date and at all times
thereafter, Company shall maintain, or caused to be maintained, in effect one
or more Interest Rate Agreements for a term of not less than two years and
otherwise in form and substance reasonably satisfactory to Administrative Agent
and Syndication Agent, which Interest Rate Agreements shall effectively limit
the Unadjusted Eurodollar Rate Component of the interest costs to Company with
respect to an aggregate notional principal amount of not less than 50% of the
aggregate principal amount of Consolidated Total Debt (excluding any Revolving
Loans) outstanding from time to time (based on the assumption that such
notional principal amount was a Eurodollar Rate Loan with an Interest Period of
three months) at a rate and on terms satisfactory to the Syndication Agent.
5.13. FURTHER ASSURANCES. At any time or from time to time upon the
request of Administrative Agent, each Credit Party will, at its expense,
promptly execute, acknowledge and deliver such further documents and do such
other acts and things as Administrative Agent or Collateral Agent may
reasonably request in order to effect fully the purposes of the Credit
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Documents. In furtherance and not in limitation of the foregoing, each Credit
Party shall take such actions as Administrative Agent or Collateral Agent may
reasonably request from time to time to ensure that the Obligations are
guarantied by the Guarantors and are secured by substantially all of the assets
of Holdings, and its Subsidiaries and all of the outstanding Capital Stock of
Company and its Subsidiaries (subject to limitations contained in the Credit
Documents with respect to Foreign Subsidiaries).
5.14. [Intentionally omitted.]
SECTION 6. NEGATIVE COVENANTS
Each Credit Party covenants and agrees that, so long as any
Commitment is in effect and until payment in full of all Obligations and
cancellation or expiration of all Letters of Credit, such Credit Party shall
perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 6.
6.1. INDEBTEDNESS. No Credit Party shall, nor shall it permit any of
its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty,
or otherwise become or remain directly or indirectly liable with respect to any
Indebtedness, except:
(a) the Obligations;
(b) (i) Indebtedness of any Guarantor Subsidiary to Company or
to any other Guarantor Subsidiary, or of Company to any Guarantor Subsidiary;
provided, (A) all such Indebtedness shall be evidenced by promissory notes and
all such notes shall be subject to a First Priority Lien pursuant to the Pledge
and Security Agreement, (B) all such Indebtedness shall be unsecured and
subordinated in right of payment to the payment in full of the Obligations
pursuant to the terms and conditions of the applicable promissory notes or the
Intercompany Subordination Agreement, and (C) any payment by any Guarantor
Subsidiary under any guaranty of the Obligations shall result in a pro tanto
reduction of the amount of any such Indebtedness owed by such Guarantor
Subsidiary to Company or to any of its Guarantor Subsidiaries for whose benefit
such payment is made; (ii) Indebtedness of any Foreign Subsidiary to Company or
any Guarantor Subsidiary, provided, (A) all such Indebtedness shall be
evidenced by promissory notes and all such notes shall be subject to a First
Priority Lien pursuant to the Pledge and Security Agreement and (B) all such
Indebtedness shall be unsecured and subordinated in right of payment to the
payment in full of the Obligations pursuant to the terms and conditions of the
applicable promissory notes or an Intercompany Subordination Agreement;
(iii) Indebtedness of any Foreign Subsidiary to any other Foreign Subsidiary
and (iv) Indebtedness between Company and Holdings arising as a result of
Restricted Junior Payments permitted under Section 6.5(d);
(c) Company and its Guarantor Subsidiaries may become and
remain liable with respect to Senior Subordinated Notes in an aggregate
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principal amount not to exceed $440,000,000 at any time outstanding under the
Senior Subordinated Note Indenture; additional Subordinated Indebtedness the
proceeds of which (net of reasonable costs and expenses associated therewith)
are used to repay the Loans pursuant to Section 2.15(d), provided, the terms
and conditions of such Subordinated Indebtedness (including the terms and
conditions of any guarantees of or other credit support for such Indebtedness)
are not less favorable in any material respect to Company and its Subsidiaries,
the Agents or the Lenders than the terms and conditions of the Senior
Subordinated Notes; and extensions, renewals, refinancings or replacements of
the Subordinated Indebtedness permitted under clauses (i) and (ii), provided,
such extensions, renewals, refinancings or replacements are on terms and
conditions (including the terms and conditions of any guarantees of or other
credit support for such Indebtedness) not less favorable in any material
respect to Company and its Subsidiaries, the Agents or the Lenders than the
terms and conditions of the Indebtedness being extended, renewed, refinanced or
replaced, do not add as an obligor any Person that would not have been an
obligor under the Indebtedness being extended, renewed, replaced or refinanced,
do not result in a greater principal amount or shorter remaining average life
to maturity than the Indebtedness being extended, renewed, replaced or
refinanced and are not effected at any time when a Default or Event of Default
has occurred and is continuing or would result therefrom;
(d) Indebtedness in respect of (i) netting services, overdraft
protections and otherwise in connection with endorsements of checks and other
negotiable instruments and deposit accounts incurred in the ordinary course of
business; (ii) workers' compensation claims, self-insurance obligations,
performance, surety, release, appeal and similar bonds and completion
guarantees incurred in the ordinary course of business of Company and its
Subsidiaries and any reimbursement obligations in respect of the foregoing; and
(iii) indemnification obligations or obligations in respect of purchase price
adjustments or similar obligations incurred or assumed by Company and its
Subsidiaries in connection with an Asset Sale or sale of Capital Stock of
Holdings otherwise permitted under this Agreement;
(e) guaranties in the ordinary course of business of Company
and its Subsidiaries of the obligations of suppliers, customers, franchisees
and licensees of Holdings and its Subsidiaries;
(f) guaranties by Holdings or Company of Indebtedness of a
Guarantor Subsidiary or guaranties by a Subsidiary of Company of Indebtedness
of Company or a Guarantor Subsidiary with respect, in each case, to
Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1;
(g) Indebtedness described in Schedule 6.1(g), and not
exceeding the aggregate principal amount indicated therein (the "SURVIVING
INDEBTEDNESS") and, solely in the case of the Surviving Capital Leases and
Surviving IRBs, any extensions, renewals, refinancings or replacements thereof,
provided, such extensions, renewals, refinancings or replacements (i) are on
terms and conditions (including the terms and conditions of any guarantee or
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other credit support for such Indebtedness) not less favorable in any material
respect to Company and its Subsidiaries, the Agents or the Lenders than the
terms and conditions of the Indebtedness being extended, renewed, refinanced or
replaced, (ii) do not add as obligor any Person that would not have been an
obligor under the Indebtedness being extended, renewed, replaced or refinanced,
(iii) do not result in a greater principal amount or shorter remaining average
life to maturity than the Indebtedness being extended, renewed, replaced or
refinanced and (iv) are not effected at any time when a Default or Event of
Default has occurred and is continuing or would result therefrom;
(h) Indebtedness with respect to Capital Leases (in addition to
any Surviving Capital Leases), including Capital Leases acquired in connection
with Permitted Acquisitions, in an aggregate amount at any time outstanding
after the Effective Date not to exceed the sum of $40,000,000;
(i) Indebtedness of Foreign Subsidiaries (to Persons other than
Company or its Subsidiaries) in an aggregate amount not to exceed $25,000,000
at any time outstanding;
(j) purchase money Indebtedness in an aggregate amount not to
exceed $10,000,000 at any time outstanding (excluding any such Indebtedness of
a Person acquired in connection with a Permitted Acquisition); provided, any
such Indebtedness (i) shall be secured only by assets acquired in connection
with the incurrence of such Indebtedness, and (ii) shall constitute not less
than 90% of the aggregate consideration paid with respect to such asset;
(k) (i) Indebtedness (other than Capital Leases) of any Person
(other than Landis or any Subsidiary of Landis) that becomes a Guarantor
Subsidiary after the date hereof pursuant to a Permitted Acquisition (including
purchase money Indebtedness of such Person), which Indebtedness exists at the
time such Person becomes a Subsidiary and is not created in contemplation of,
or in connection with, such Person becoming a Subsidiary; and (ii) any
extensions, renewals, refinancings or replacements of such Indebtedness which
extensions, renewals, refinancings or replacements (A) are on terms and
conditions (including the terms and conditions of any guarantee or other credit
support for such Indebtedness) not less favorable in any material respect to
Company and its Subsidiaries or the Lenders than the terms and conditions of
the Indebtedness being extended, renewed, refinanced or replaced and, (B) do
not add as obligor any Person that would not have been an obligor under the
Indebtedness being extended, renewed, replaced or refinanced, (C) do not result
in a greater principal amount or shorter remaining average life to maturity
than the Indebtedness being extended, renewed, replaced or refinanced and (D)
are not effected at any time when a Default or Event of Default has occurred
and is continuing or would result therefrom; provided, the aggregate amount of
Indebtedness described in clauses (i) and (ii) does not exceed $10,000,000 at
any time outstanding;
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(l) Indebtedness with respect to Financial Hedge Agreements;
(m) senior unsecured Indebtedness of Holdings to rank pari
passu with Holdings' Obligations under its Guaranty, in an aggregate principal
amount not to exceed $50,000,000 at any time outstanding; provided, the
Administrative Agent is satisfied that the terms and conditions of such
Indebtedness (A) provide that there shall be no payment (whether in Cash or
other assets or property, other than payments-in-kind) of principal, interest,
fees, expenses or other amounts by Holdings out of the assets or estate of
Holdings or any of its Subsidiaries (other than as a consequence of any
acceleration or event of default) at any time prior to the payment in full of
the Obligations, (B) do not create rights or remedies enforceable against
Company or any of its Subsidiaries, (C) do not provide for covenants,
restrictions or limitations on Holdings in respect of Company and its
Subsidiaries, or Events of Default relating to Company and its Subsidiaries, in
each case, that are more restrictive in any material respect than the analogous
provisions of the Senior Subordinated Notes and (D) provide for a final
maturity after the final maturity of any Loan then outstanding or committed to
be lent hereunder; provided, further, 100% of the proceeds of such Indebtedness
(net of reasonable costs and expenses associated therewith, including
reasonable fees and expenses of professional advisors) are contributed as
equity capital to Company;
(n) other Indebtedness of Holdings and its Guarantor
Subsidiaries, which is unsecured and subordinated to the Obligations in a
manner satisfactory to Administrative Agent in an aggregate amount not to
exceed $10,000,000 at any time outstanding; and
(o) Incremental Term Loans; provided, that the average weighted
maturity of Incremental Term Loans, on an aggregate basis, shall not be less
than the remaining term of the Term Loan at any time.
6.2. LIENS. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset (including any
document or instrument in respect of goods or accounts receivable) of Holdings
or any of its Subsidiaries, whether now owned or hereafter acquired, or any
income or profits therefrom, or file or permit the filing of, or permit to
remain in effect, any financing statement or other similar notice of any Lien
with respect to any such property, asset, income or profits under the UCC of
any State or under any similar recording or notice statute, except:
(a) Liens in favor of Collateral Agent for the benefit of
Secured Parties granted pursuant to any Credit Document;
(b) Liens for Taxes or Liens imposed pursuant to Section
401(a)(29) or 412(n) of the Internal Revenue Code, in each case, if the
underlying obligations are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted;
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(c) statutory Liens of landlords, banks (including rights of
set-off), carriers, warehousemen, mechanics, repairmen, workmen and
materialmen, and other Liens imposed by law (other than any such Lien imposed
pursuant to Section 401 (a)(29) or 412(n) of the Internal Revenue Code or by
ERISA), in each case incurred in the ordinary course of business of Company and
its Subsidiaries (i) for amounts not yet overdue or (ii) for amounts that are
overdue and that (in the case of any such amounts overdue for a period in
excess of five days) are being contested in good faith by appropriate
proceedings, so long as such reserves or other appropriate provisions, if any,
as shall be required by GAAP shall have been made for any such contested
amounts;
(d) Liens incurred in the ordinary course of business of
Company and its Subsidiaries in connection with workers' compensation,
unemployment insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, trade contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the payment
of borrowed money or other Indebtedness), so long as no foreclosure, sale or
similar proceedings have been commenced with respect to any portion of the
Collateral on account thereof;
(e) easements, rights-of-way, restrictions, encroachments, and
other minor defects or irregularities affecting any Real Estate Asset in title,
in each case which do not and will not materially and adversely affect
marketability of title or the value of such Real Estate Asset or interfere in
any material respect with the ordinary conduct of the business of Holdings or
any of its Subsidiaries;
(f) any interest or title in real estate or improvements of a
lessor or sublessor, but only as a lessor, under any lease of real estate
permitted hereunder;
(g) Liens solely on any cash earnest money deposits made by
Holdings or any of its Subsidiaries in connection with any letter of intent or
purchase agreement permitted hereunder;
(h) purported Liens evidenced by the filing of precautionary
UCC financing statements relating solely to personal property leased pursuant
to operating leases entered into in the ordinary course of business of Company
and its Subsidiaries;
(i) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection with the
importation of goods;
(j) any zoning or similar law or right reserved to or vested in
any governmental office or agency to control or regulate the use of any real
property;
(k) licenses of patents, trademarks and other intellectual
property rights granted by Holdings or any of its Subsidiaries in the ordinary
course of business and not interfering in any respect with the ordinary conduct
of the business of Company or such Subsidiary;
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(l) Liens described in Schedule 6.2(l) or on a title report
delivered pursuant to Section 3.1(l)(iv)(A);
(m) Liens securing Indebtedness permitted pursuant to Sections
6.1(j) and 6.1(k), provided, any such Lien (i) exists on the date of the
applicable acquisition or, solely in the case of Indebtedness permitted in
Section 6.1(j),is created in connection with the financing of the acquisition
within 180 days thereafter, (ii) solely in the case of Indebtedness
permitted by Section 6.1(k), is not created in contemplation of, or in
connection with, such acquisition, and(iii) applies only to the property or
assets acquired;
(n) Liens in respect of Surviving Capital Leases and Surviving
IRBs and existing as of the Effective Date and any replacement Liens, provided
any such replacement Lien applies only to assets and property subject to the
Lien so replaced; and
(o) other Liens on assets other than the Collateral securing
Indebtedness in an aggregate amount not to exceed $5,000,000 at any time
outstanding.
6.3. EQUITABLE LIEN. If any Credit Party or any of its Subsidiaries
shall create or assume any Lien upon any of its properties or assets, whether
now owned or hereafter acquired, other than Permitted Liens, it shall make or
cause to be made effective provisions whereby the Obligations will be secured
by such Lien equally and ratably with any and all other Indebtedness secured
thereby as long as any such Indebtedness shall be so secured; provided,
notwithstanding the foregoing, this covenant shall not be construed as a
consent by Requisite Lenders to the creation or assumption of any such Lien not
otherwise permitted by Section 6.2.
6.4. NO FURTHER NEGATIVE PLEDGES. No Credit Party nor any of its
Subsidiaries shall enter into any agreement prohibiting the creation or
assumption of any Lien upon any of its properties or assets, whether now owned
or hereafter acquired, except (a) restrictions pursuant to the Credit
Documents, any Subordinated Indebtedness permitted under Section 6.1(c) and any
Surviving Indebtedness permitted under Section 6.1(g), provided, in the case of
Subordinated Indebtedness and Surviving Indebtedness, that such restrictions
are no more restrictive in any material respect than the applicable
restrictions in the Senior Subordinated Note Documents; (b) customary
restrictions pending a sale of property or assets permitted hereunder arising
under an executed agreement in respect of such sale, provided, such
restrictions relate only to the property or assets being sold; (c) customary
restrictions on assignment, subletting or other transfers contained in leases,
licenses and similar agreements entered into in the ordinary course of business
of Company and its Subsidiaries, provided, in each case, such restrictions
relate only to the property subject to such leases, licenses or similar
agreements; and (d) restrictions on property or assets subject to a Lien
permitted under Section 6.2(m), provided, such restrictions relate only to the
property or assets subject to such Lien.
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6.5. RESTRICTED JUNIOR PAYMENTS. No Credit Party shall, nor shall it
permit any of its Subsidiaries through any manner or means or through any other
Person to, directly or indirectly, declare, order, pay, make or set apart, or
agree to declare, order, pay, make or set apart, any sum for any Restricted
Junior Payment in respect of such Credit Party or Subsidiary, as applicable,
except that (a) Company may make regularly scheduled payments of interest in
respect of the Senior Subordinated Notes in accordance with the terms of, and
only to the extent required by, and subject to the subordination provisions
contained in, the Senior Subordinated Note Indenture; (b) Company may extend,
renew, refinance or replace Subordinated Indebtedness to the extent permitted
under Section 6.1(c); (c) any Subsidiary may pay dividends or make other
distributions with respect to any class of its issued and outstanding Capital
Stock or intercompany Indebtedness permitted by clauses (i) through (iii) of
Section 6.1(b); provided, any dividends and other distributions by a Subsidiary
that is not Wholly-Owned (i) are paid in Cash on a pro rata basis among the
holders of each applicable class of Capital Stock and (ii) are not made to any
Person other than Company or its Subsidiaries at any time when a Default or
Event of Default shall have occurred and be continuing or shall be caused
thereby; (d) so long as no Default or Event of Default shall have occurred and
be continuing or shall be caused thereby, Company may make Restricted Junior
Payments to Holdings (i) in an aggregate amount not to exceed $1,000,000 in any
Fiscal Year, to the extent necessary to permit Holdings to pay general
administrative costs and expenses and to pay franchise taxes and other fees to
maintain its corporate existence, (ii) to the extent necessary to permit
Holdings to discharge the consolidated tax liabilities of Holdings and its
Subsidiaries and (iii) to the extent necessary to fund Restricted Junior
Payments by Holdings in accordance with clause (e) below, provided, in each of
cases (i), (ii) and (iii) Holdings promptly applies the amount of any such
Restricted Junior Payment for such purpose; (e) so long as no Default or Event
of Default shall have occurred and be continuing or shall be caused thereby,
the following additional payments may be made to holders or purchasers of
Capital Stock of Holdings and its Subsidiaries: (i) Holdings may purchase its
Capital Stock for Cash from present or former officers and employees of
Holdings or any of its Subsidiaries in accordance with the terms of the
Employee Leverage Program, Stockholder Agreements and stock option plans upon
the death, disability or termination of employment of such officer or employee,
provided, the aggregate amount of such Restricted Junior Payment does not
exceed $3,000,000 per Fiscal Year and (ii) any Subsidiary acquired in a
Permitted Acquisition may make Cash payments to redeem, retire or repurchase
Capital Stock in such Subsidiary held by a minority investor permitted under
clause (iii) of the definition of "Permitted Acquisition," provided, in the
case of this clause (ii), the aggregate amount of all such payments by Holdings
and its Subsidiaries (exclusive of amounts permitted by Section 6.5(d)) does
not exceed $4,000,000 during any Fiscal Year and $12,000,000 from the Closing
Date; and (f) payments of Landis Acquisition Financing Requirements as
contemplated by the Landis Merger Agreement.
6.6. RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS. Except as provided
herein, no Credit Party shall, nor shall it permit any of its Subsidiaries to,
create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Subsidiary of
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Company to (a)pay dividends or make any other distributions on any of such
Subsidiary's Capital Stock owned by Company or any other Subsidiary of Company,
(b)repay or prepay any Indebtedness owed by such Subsidiary to Company or any
other Subsidiary of Company, or (c) make loans or advances to Company or any
other Subsidiary of Company, provided, none of clauses (a) through (c) shall
apply to (i) customary restrictions pending a sale of a Subsidiary
(or any of its property, assets or Capital Stock) permitted hereunder which
restrictions arise under an executed agreement in respect of such sale
and relate only to the Subsidiary being sold, (ii) restrictions imposed by
applicable law, (iii) restrictions pursuant to the Credit Documents,
any Subordinated Indebtedness permitted under Section 6.1(c), any
Surviving Indebtedness permitted under Section 6.1(g) and Indebtedness of
Foreign Subsidiaries under Section 6.1(i) and (iv) any restrictions
existing on cash or other deposits or net worth imposed by customers
under contracts entered into in the ordinary course of business of Company
and its Subsidiaries.
6.7. INVESTMENTS. No Credit Party shall, nor shall it permit any of
its Subsidiaries to, directly or indirectly, make or own any Investment in any
Person, including without limitation any Joint Venture, except:
(a) Cash and Cash Equivalents;
(b) Investments owned as of the Closing Date in the Capital
Stock of any Subsidiary;
(c) Investments made after the Closing Date in Capital Stock
or, to the extent incurred in accordance with Section 6.1(b), Indebtedness of
Company or any Subsidiary, provided, no Credit Party shall, nor shall it permit
any of its Subsidiaries to, directly or indirectly, make any Investment in any
Foreign Subsidiary unless on a pro forma basis after giving effect to such
Investment as of the last day of the Fiscal Quarter recently ended, Domestic
Subsidiaries account for (A) at least 80% of the consolidated assets of
Holdings and its Subsidiaries as of the last day of the Fiscal Quarter recently
ended and (B) at least 80% of the consolidated revenues of Holdings and its
Subsidiaries for the last four full Fiscal Quarters recently ended;
(d) Investments made after the Closing Date in Joint Ventures
in a business or line of business permitted for Company under Section 6.13,
provided, (A) immediately prior to the making of any Investment, and after
giving effect thereto, no Default or Event of Default shall have occurred and
be continuing, (B) all transactions in connection therewith shall be
consummated, in all material respects, in accordance with all applicable laws
and in conformity with all applicable Governmental Authorizations, (C) such
Investment can be legally maintained, and is maintained, as Collateral (but
only to the extent of Company's interest in such Joint Venture) subject to
First Priority security interests on such terms and conditions as are
reasonably satisfactory to Administrative Agent, and (D) the aggregate amount
of all Investments in Joint Ventures pursuant to this clause (d) does not
exceed $10,000,000 at any time outstanding;
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(e) Investments (i) in any Securities received from financially
troubled account debtors in satisfaction or partial satisfaction of accounts
receivable incurred in the ordinary course of business of Company and its
Subsidiaries, (ii) deposits, prepayments and other credits to suppliers made in
the ordinary course of business of Company and its Subsidiaries and
(iii) prepaid expenses, negotiable instruments held for collection and lease,
utility, worker's compensation, performance and other similar deposits made in
the ordinary course of business of Company and its Subsidiaries;
(f) Investments that constitute Restricted Junior Payments
permitted under Section 6.5(e), Consolidated Capital Expenditures permitted
under Section 6.8(c) and Permitted Acquisition Expenses;
(g) Investments existing on the Effective Date and described in
Schedule 6.7;
(h) Investments that constitute Financial Hedge Agreements or
agreements permitted under Section 6.18(b); and
(i) other Investments (including loans and advances to officers
and employees for relocation and other expenses) in an aggregate amount not to
exceed $3,000,000 at any time outstanding.
6.8. FINANCIAL COVENANTS.
(a) Interest Coverage Ratio. Holdings shall not permit the
Interest Coverage Ratio as of the last day of any Fiscal Quarter, beginning
with the Fiscal Quarter ending on or near December 31, 2002 to be less than the
correlative ratio indicated:
FISCAL QUARTER ENDING INTEREST COVERAGE RATIO
December 2002 2.00:1.00
March 2003 2.00:1.00
June 2003 2.00:1.00
September 2003 2.00:1.00
December 2003 2.00:1.00
March 2004 2.00:1.00
June 2004 2.10:1.00
September 2004 2.10:1.00
December 2004 2.15:1.00
March 2005 2.15:1.00
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June 2005 2.25:1.00
September 2005 2.25:1.00
December 2005 2.25:1.00
March 2006 2.25:1.00
June 2006 2.35:1.00
September 2006 2.35:1.00
December 2006 2.35:1.00
March 2007 2.50:1.00
June 2007 2.50:1.00
September 2007 2.50:1.00
December 2007 2.50:1.00
March 2008 2.50:1.00
June 2008 2.50:1.00
September 2008 2.50:1.00
December 2008 2.50:1.00
March 2009 2.50:1.00
June 2009 2.50:1.00
September 2009 2.50:1.00
December 2009 2.50:1.00
March 2010 2.50:1.00
June 2010 2.50:1.00
(b) Leverage Ratio. Holdings shall not permit the Leverage
Ratio as of the last day of any Fiscal Quarter, beginning with the Fiscal
Quarter ending on or near December 31, 2002, to exceed the correlative ratio
indicated:
FISCAL QUARTER ENDING LEVERAGE RATIO
December 2002 5.90:1.00
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March 2003 5.90:1.00
June 2003 5.90:1.00
September 2003 5.75:1.00
December 2003 5.90:1.00
March 2004 5.90:1:00
June 2004 5.75:1.00
September 2004 5.75:1.00
December 2004 5.50:1.00
March 2005 5.50:1.00
June 2005 5.50:1.00
September 2005 5.25:1.00
December 2005 5.25:1.00
March 2006 5.00:1.00
June 2006 5.00:1.00
September 2006 4.75:1.00
December 2006 4.75:1.00
March 2007 4.75:1.00
June 2007 4.50:1.00
September 2007 4.50:1.00
December 2007 4.50:1.00
March 2008 4.25:1.00
June 2008 4.25:1.00
September 2008 4.25:1.00
December 2008 4.25:1.00
March 2009 4.00:1:00
June 2009 4:00:1:00
September 2009 4.00:1.00
December 2009 4.00:1.00
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March 2010 4.00:1.00
June 2010 4.00:1.00
(c) Maximum Consolidated Capital Expenditures. Except to the
extent funded from the Cash proceeds of Additional Sponsor Equity, Holdings
shall not, and shall not permit its Subsidiaries to, make or incur Consolidated
Capital Expenditures in any Fiscal Year indicated below in an aggregate amount
in excess of (i) the corresponding amount set forth opposite such Fiscal Year
plus (ii) an amount equal to the Additional Net Sales for such Fiscal Year (the
sum of (i) and (ii), together, the "BUDGETED AMOUNT" for such Fiscal Year) plus
(iii) if the Budgeted Amount for the immediately preceding Fiscal Year was
greater than the actual amount of Consolidated Capital Expenditures made or
incurred by Holdings or its Subsidiaries for such preceding Fiscal Year, an
amount equal to the lesser of (A) the difference between the Budgeted Amount
for such preceding Fiscal Year and the actual amount of Consolidated Capital
Expenditures for such preceding Fiscal Year and (B) 50% of the Budgeted Amount
for such preceding Fiscal Year:
FISCAL QUARTER ENDING CONSOLIDATED CAPITAL EXPENDITURES
2002 $45,000,000
2003 $50,000,000
2004 $50,000,000
2005 $60,000,000
2006 $60,000,000
2007 $60,000,000
2008 $65,000,000
2009 $65,000,000
2010 $65,000,000
(d) Certain Calculations. For purposes of determining
compliance with the financial covenants set forth in this Section 6.8 and, in
the case of Section 6.8(d)(ii) only, calculating the Applicable Margin in
respect of Term Loans and the Leverage Ratio for purposes of compliance with
Section 2.2 (but not for purposes of determining the Applicable Margin in
respect of any other Loans or the Applicable Revolving Commitment Fee
Percentage),
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(i) with respect to any period during which a Permitted
Acquisition or an Asset Sale has occurred (each, a "SUBJECT
TRANSACTION"), each of Consolidated Adjusted EBITDA, the components of
Consolidated Cash Interest Expense and Additional Net Sales shall be
calculated with respect to such period on a pro forma basis (including
only Permitted Adjustments) using the historical audited financial
statements of any business so acquired or to be acquired or sold or to
be sold and the consolidated financial statements of Holdings and its
Subsidiaries which shall be reformulated as if such Subject Transaction,
and any Indebtedness incurred or repaid in connection therewith, had
been consummated or incurred or repaid at the beginning of such period
(and assuming that such Indebtedness bears interest during any portion
of the applicable measurement period prior to the relevant acquisition
at the weighted average of the interest rates applicable to outstanding
Loans incurred during such period);
(ii) with respect to any period during which Company has
incurred Refinancing Costs, plant shutdown costs, acquisition
integration costs or Uncompleted Acquisition Costs, Consolidated
Adjusted EBITDA for such period shall be increased by an amount, without
duplication, equal to any such costs payable in Cash and incurred by
Company during such period to the extent that such costs have reduced
Consolidated Net Income for such period, provided that the aggregate
amount of adjustments to Consolidated Adjusted EBITDA made pursuant to
this Section 6.8(d)(ii) for any period, together with any Permitted
Adjustments in respect of any Subject Transactions made pursuant to
clause (ii) of the definition of Permitted Adjustments for the same
period, shall not exceed 7.5% of pro forma Consolidated Adjusted EBITDA
(as reformulated) for such period;
(iii) with respect to any period during which the proceeds
of any capital contribution to, or issuance of Capital Stock of,
Holdings ("EQUITY PROCEEDS") have been applied to make mandatory or
voluntary prepayments of Loans, the components of Consolidated Adjusted
EBITDA and Consolidated Cash Interest Expense shall be calculated with
respect to such period on a pro forma basis (including only pro forma
adjustments which are factually supportable and are expected to have a
continuing impact, in each case determined on a basis consistent with
Article 11 of Regulation S-X promulgated under the Securities Act and as
interpreted by the staff of the Securities and Exchange Commission,
which pro forma adjustments shall be certified by the Chief Financial
Officer of Holdings) using historical financial statements which shall
be reformulated (after giving effect to any reformulation required under
clause (i) above) as if such Equity Proceeds had been received, and
applicable portion of the Loans prepaid, at the beginning of such
period;
(iv) with respect to any period including the Fiscal
Quarter ended September 30, 2002 or any prior Fiscal Quarter (each an
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"HISTORICAL QUARTER"), Consolidated Adjusted EBITDA and Consolidated
Cash Interest Expense shall be calculated in accordance with
Schedule 6.8(d); and
(v) proceeds of the Landis Acquisition Senior
Subordinated Notes shall not be included in the determination of
Consolidated Total Debt for purposes of determining compliance with this
Section 6.8 for periods up to and including the Landis Acquisition
Closing Date if all such proceeds (A) are deposited in an escrow account
on the terms and conditions described in the offering circular relating
to the Landis Acquisition Senior Subordinated Notes and (B)(1) are used
to pay Landis Acquisition Financing Requirements on the Landis
Acquisition Closing Date or (2) used to prepay the Landis Acquisition
Senior Subordinated Notes if the Landis Acquisition Closing Date does
not occur on or prior to May 22, 2004.
6.9. FUNDAMENTAL CHANGES; DISPOSITION OF ASSETS; ACQUISITIONS. No
Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into
any transaction of merger or consolidation, or liquidate, wind-up or dissolve
itself (or suffer any liquidation or dissolution), or convey, sell, lease or
sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one
transaction or a series of transactions, all or any part of its business,
assets or property of any kind whatsoever, whether real, personal or mixed and
whether tangible or intangible, whether now owned or hereafter acquired, or
acquire by purchase or otherwise (other than purchases or other acquisitions of
inventory, materials and equipment in the ordinary course of business of
Company and its Subsidiaries) the business, property or fixed assets of, or
Capital Stock or other evidence of beneficial ownership of, any Person or any
business line or unit or division of any Person, except:
(a) any Subsidiary of Holdings may be merged with or into
Company or any Guarantor Subsidiary, or be liquidated, wound up or dissolved,
or all or any part of its business, property or assets may be conveyed, sold,
leased, transferred or otherwise disposed of, in one transaction or a series of
transactions, to Company or any Guarantor Subsidiary; provided, in the case of
such a merger, Company or such Guarantor Subsidiary, as applicable, shall be
the continuing or surviving Person;
(b) sales or other dispositions of assets that do not
constitute Asset Sales;
(c) Asset Sales in respect of (i) obsolete, worn out or surplus
property (including obsolete, worn out or surplus property acquired in a
Permitted Acquisition), (ii) property acquired in a Permitted Acquisition which
the Company or any of its Subsidiaries is legally required to divest or (iii)
other property (other than current assets) the proceeds of which (valued at the
principal amount thereof in the case of notes or other debt Securities and
valued at fair market value in the case of other non-Cash proceeds) are less
than $6,000,000 with respect to any single Asset Sale or series of related
Asset Sales pursuant to this clause (iii) and when aggregated with the proceeds
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of all such other Asset Sales made by Credit Parties pursuant to this clause
(iii) within the same Fiscal Year, are less than $10,000,000; provided, in each
of cases (i), (ii) and (iii) the consideration received for such property shall
be in an amount at least equal to the fair market value thereof (determined in
good faith by the board of directors of Holdings), no less than 75% of such
consideration shall be paid in Cash and all related Net Asset Sale Proceeds
shall be applied in accordance with Section 2.16(b);
(d) any Permitted Acquisition by Company or any Guarantor
Subsidiary;
(e) any Foreign Subsidiary may be merged with or into any other
Foreign Subsidiary, or be liquidated, wound up or dissolved, or all or any part
of the its business, property or assets may be conveyed, sold, leased,
transferred or otherwise disposed of, in one transaction or a series of
transactions, to any Foreign Subsidiary;
(f) Company may liquidate any of its Subsidiaries that has
total net assets (as shown on the most recent balance sheet of such Subsidiary
delivered to the Agents and at the time of liquidation) of $100,000 or less,
provided, any Restricted Junior Payments in connection with such liquidation
are made in accordance with Section 6.5;
(g) Sales of Capital Stock in any Subsidiary to qualify
directors or allow for investments by foreign nationals, in either case, to the
extent required by applicable law; and
(h) any Investment permitted under Section 6.7 and any grant of
a Permitted Lien.
6.10. DISPOSAL OF SUBSIDIARY INTERESTS. Except for (i) Liens created
under any of the Credit Documents and (ii) any sale of all (but not less than
all) of the Company's direct and indirect interests in the Capital Stock of any
Subsidiary in compliance with the provisions of Section 6.9, no Credit Party
shall, nor shall it permit any of its Subsidiaries to, (a) directly or
indirectly sell, assign, pledge or otherwise encumber or dispose of any Capital
Stock of any of its Subsidiaries, except to qualify directors or allow for
investments by foreign nationals, in either case, if required by applicable
law; or (b) permit any of its Subsidiaries directly or indirectly to sell,
assign, pledge or otherwise encumber or dispose of any Capital Stock of any of
its Subsidiaries, except to another Credit Party (subject to the restrictions
on such disposition otherwise imposed hereunder), or to qualify directors if
required by applicable law.
6.11. SALES AND LEASE-BACKS. No Credit Party shall, nor shall it permit
any of its Subsidiaries to, directly or indirectly, become or remain liable as
lessee or as a guarantor or other surety with respect to any lease of any
property (whether real, personal or mixed), whether now owned or hereafter
acquired, which such Credit Party (a) has sold or transferred or is to sell or
to transfer to any other Person (other than Company or any of its Guarantor
Subsidiaries), or (b) intends to use for substantially the same purpose as any
other property which has been or is to be sold or transferred by such Credit
109
Party to any Person (other than Company or any of its Guarantor Subsidiaries)
in connection with such lease, provided, the foregoing restriction shall not
apply to (i) sales and lease-backs of equipment and other personal property in
the ordinary course of business of Company and its Subsidiaries which a Credit
Party first acquired not more than 30 days prior to the commencement of the
applicable lease and (ii) sales and lease-backs of real property with an
aggregate fair market value (as sold) not to exceed $1,000,000 at any time
outstanding, in each of cases (i) and (ii) to the extent such transactions are
otherwise in compliance with this Agreement.
6.12. TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES. No Credit Party
shall, nor shall it permit any of its Subsidiaries to, directly or indirectly,
enter into or permit to exist any transaction (including the purchase, sale,
lease or exchange of any property or the rendering of any service) with any
holder of 10% or more of any class of Capital Stock of Holdings or any of its
Subsidiaries or with any Affiliate of Holdings, on terms that are less
favorable to it or such Subsidiary, as the case may be, than those that might
be obtained at the time from a Person who is not such a holder or Affiliate;
provided, the foregoing restriction shall not apply to (a) any transaction
between Company and any Wholly-Owned Guarantor Subsidiary; (b) reasonable and
customary fees paid to members of the board of directors (or similar governing
body) of Holdings and its Subsidiaries; (c) compensation arrangements for
officers and other employees of Holdings and its Subsidiaries entered into in
the ordinary course of business of Company and its Subsidiaries;
(d) transactions in connection with the Merger; (e) any Restricted Junior
Payment permitted to be paid pursuant to Section 6.5(c), 6.5(d), or 6.5(e)(i);
(f) any issuance of Securities, or other payments, awards or grants in cash,
Securities or otherwise pursuant to, or the funding of, employment
arrangements, stock options and stock ownership plans (including the Employee
Leverage Program) approved by the board of directors of Holdings, in each case
which are otherwise consistent with this Agreement; (g) sales or issuances of
Capital Stock of Holdings to Affiliates of Company approved by the board of
directors of Holdings; and (h) sales of inventory or other product and
arrangements in respect of administrative, corporate overhead and insurance,
legal and similar expenses among Company and its Subsidiaries in the ordinary
course of business.
6.13. CONDUCT OF BUSINESS. From and after the Closing Date, no Credit
Party shall, nor shall it permit any of its Subsidiaries to, engage in any
business other than (a) the businesses engaged in by such Credit Party on the
Closing Date and similar or related businesses and (b) such other lines of
business as may be consented to by Requisite Lenders.
6.14. PERMITTED ACTIVITIES OF HOLDINGS. Holdings shall not (a) incur,
directly or indirectly, any Indebtedness other than its Obligations under the
Credit Documents or guarantees in respect of Indebtedness of Company or any of
its Subsidiaries otherwise permitted under this Agreement and Indebtedness
permitted under Section 6.1(m); (b) create or suffer to exist any Lien upon any
property or assets now owned or hereafter acquired by it other than the Liens
created under the Collateral Documents to which it is a party or permitted
110
pursuant to Section 6.2; (c) engage in any business or activity or own any
assets other than (i) holding 100% of the Capital Stock of Company and, through
Company, not less than 80% of the Capital Stock of each of the Subsidiaries of
Company; (ii) performing its obligations and activities incidental thereto
under the Credit Documents, and to the extent not inconsistent therewith, the
Related Agreements and the Landis Merger Agreement, as applicable; and
(iii) making Restricted Junior Payments and Investments to the extent permitted
by this Agreement; (d) consolidate with or merge with or into, or convey,
transfer or lease all or substantially all its assets to, any Person; (e) sell
or otherwise dispose of any Capital Stock of Company; (f) create or acquire any
Subsidiary or make or own any Investment in any Person other than Company and,
through Company, the Subsidiaries of Company; or (g) fail to hold itself out to
the public as a legal entity separate and distinct from all other Persons.
6.15. AMENDMENTS OR WAIVERS OF CERTAIN RELATED AGREEMENTS. Except as
set forth in Section 6.16, no Credit Party shall nor shall it permit any of its
Subsidiaries to, agree to any material amendment, restatement, supplement or
other modification to, or waiver of, any of its material rights under any
Related Agreement or the Landis Merger Agreement after the Effective Date
without in each case obtaining the prior written consent of Requisite Lenders
to such amendment, restatement, supplement or other modification or waiver.
6.16. AMENDMENTS OR WAIVERS OF OR WITH RESPECT TO SUBORDINATED
INDEBTEDNESS. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, amend or otherwise change the terms of any Subordinated
Indebtedness, or make any payment consistent with an amendment thereof or
change thereto, (a) if the effect of such amendment or change is to increase
the interest rate on such Subordinated Indebtedness, change (to earlier dates)
any dates upon which payments of principal or interest are due thereon, change
any event of default or condition to an event of default with respect thereto
(other than to eliminate any such event of default or increase any grace period
related thereto), change the redemption, prepayment or defeasance provisions
thereof, change the subordination provisions of such Senior Subordinated Notes
(or of any guaranty thereof), or (b) amend or otherwise change the covenants or
other provisions contained in any Subordinated Indebtedness not described in
clause (a) of this Section 6.16 if the effect of such amendment or change,
together with all other amendments or changes made, is to increase the
obligations of the obligor thereunder or to confer any additional material
rights on the holders of such Subordinated Indebtedness (or a trustee or other
representative on their behalf) which would be adverse to any Credit Party or
Lenders.
6.17. FISCAL YEAR. No Credit Party shall, nor shall it permit any of
its Subsidiaries to, change its Fiscal Year.
6.18. DERIVATIVE TRANSACTIONS. No Credit Party shall enter into any
agreement with respect to any swap, forward, future or derivative transaction
or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities,
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or economic, financial or pricing indices or measures of economic, financial or
pricing risk or value, other than (a) Financial Hedge Agreements and (b) for
the purposes of hedging the actual exposure of Company and its Subsidiaries to
fluctuations in the price of resin or other raw materials used in the
operations of Company and its Subsidiaries and not for speculative purposes.
SECTION 7. GUARANTY
7.1. GUARANTY OF THE OBLIGATIONS. Subject to the provisions of Section
7.2, Guarantors jointly and severally hereby irrevocably and unconditionally
guarantee to Administrative Agent for the ratable benefit of the Beneficiaries
the due and punctual payment in full of all Obligations when the same shall
become due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including amounts that would become due but
for the operation of the automatic stay under Section 362(a) of the Bankruptcy
Code, 11 U.S.C. {section} 362(a)) (collectively, the "GUARANTEED OBLIGATIONS").
Without limiting the obligations of Holdings under this Section 7, Holdings
shall become a co-obligor under the Notes, on a joint and several basis with
Company, and execute the Notes in such capacity.
7.2. CONTRIBUTION BY GUARANTORS. All Guarantors desire to allocate
among themselves (collectively, the "CONTRIBUTING GUARANTORS"), in a fair and
equitable manner, their obligations arising under this Guaranty. Accordingly,
in the event any payment or distribution is made on any date by a Guarantor (a
"FUNDING GUARANTOR") under this Guaranty that exceeds its Fair Share as of such
date, such Funding Guarantor shall be entitled to a contribution from each of
the other Contributing Guarantors in the amount of such other Contributing
Guarantor's Fair Share Shortfall as of such date, with the result that all such
contributions will cause each Contributing Guarantor's Aggregate Payments to
equal its Fair Share as of such date. "FAIR SHARE" means, with respect to a
Contributing Guarantor as of any date of determination, an amount equal to
(a) the ratio of (i) the Fair Share Contribution Amount with respect to such
Contributing Guarantor to (ii) the aggregate of the Fair Share Contribution
Amounts with respect to all Contributing Guarantors multiplied by (b) the
aggregate amount paid or distributed on or before such date by all Funding
Guarantors under this Guaranty in respect of the obligations Guaranteed. "FAIR
SHARE SHORTFALL" means, with respect to a Contributing Guarantor as of any date
of determination, the excess, if any, of the Fair Share of such Contributing
Guarantor over the Aggregate Payments of such Contributing Guarantor. "FAIR
SHARE CONTRIBUTION AMOUNT" means, with respect to a Contributing Guarantor as
of any date of determination, the maximum aggregate amount of the obligations
of such Contributing Guarantor under this Guaranty that would not render its
obligations hereunder or thereunder subject to avoidance as a fraudulent
transfer or conveyance under Section 548 of Title 11 of the United States Code
or any comparable applicable provisions of state law; provided, solely for
purposes of calculating the "FAIR SHARE CONTRIBUTION AMOUNT" with respect to
any Contributing Guarantor for purposes of this Section 7.2, any assets or
liabilities of such Contributing Guarantor arising by virtue of any rights to
subrogation, reimbursement or indemnification or any rights to or obligations
112
of contribution hereunder shall not be considered as assets or liabilities of
such Contributing Guarantor. "AGGREGATE PAYMENTS" means, with respect to a
Contributing Guarantor as of any date of determination, an amount equal to
(1) the aggregate amount of all payments and distributions made on or before
such date by such Contributing Guarantor in respect of this Guaranty
(including, without limitation, in respect of this Section 7.2), minus (2) the
aggregate amount of all payments received on or before such date by such
Contributing Guarantor from the other Contributing Guarantors as contributions
under this Section 7.2. The amounts payable as contributions hereunder shall
be determined as of the date on which the related payment or distribution is
made by the applicable Funding Guarantor. The allocation among Contributing
Guarantors of their obligations as set forth in this Section 7.2 shall not be
construed in any way to limit the liability of any Contributing Guarantor
hereunder. Each Guarantor is a third party beneficiary to the contribution
agreement set forth in this Section 7.2.
7.3. PAYMENT BY GUARANTORS. Subject to Section 7.2, Guarantors hereby
jointly and severally agree, in furtherance of the foregoing and not in
limitation of any other right which any Beneficiary may have at law or in
equity against any Guarantor by virtue hereof, that upon the failure of Company
to pay any of the Guaranteed Obligations when and as the same shall become due,
whether at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise (including amounts that would become due but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy Code,
11 U.S.C. {section} 362(a)), Guarantors will upon demand pay, or cause to be
paid, in Cash, in same day funds, to Administrative Agent for the ratable
benefit of Beneficiaries, an amount equal to the sum of the unpaid principal
amount of all Guaranteed Obligations then due as aforesaid, accrued and unpaid
interest on such Guaranteed Obligations (including interest which, but for
Company's becoming the subject of a case under the Bankruptcy Code, would have
accrued on such Guaranteed Obligations, whether or not a claim is allowed
against Company for such interest in the related bankruptcy case) and all other
Guaranteed Obligations then owed to Beneficiaries as aforesaid.
7.4. LIABILITY OF GUARANTORS ABSOLUTE. Each Guarantor agrees that its
obligations hereunder are irrevocable, absolute, independent and unconditional
and shall not be affected by any circumstance which constitutes a legal or
equitable discharge of a guarantor or surety other than payment in full of the
Guaranteed Obligations or the release of such Guarantor permitted by the Credit
Documents. In furtherance of the foregoing and without limiting the generality
thereof, each Guarantor agrees as follows:
(a) this Guaranty is a guaranty of payment when due and not of
collectability. This Guaranty is a primary obligation of each Guarantor and
not merely a contract of surety;
(b) Administrative Agent may enforce this Guaranty upon the
occurrence of an Event of Default notwithstanding the existence of any dispute
between Company and any Beneficiary with respect to the existence of such Event
of Default;
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(c) the obligations of each Guarantor hereunder are independent
of the obligations of Company and the obligations of any other guarantor
(including any other Guarantor) of the obligations of Company, and a separate
action or actions may be brought and prosecuted against such Guarantor whether
or not any action is brought against Company or any of such other guarantors
and whether or not Company is joined in any such action or actions;
(d) payment by any Guarantor of a portion, but not all, of the
Guaranteed Obligations shall in no way limit, affect, modify or abridge any
Guarantor's liability for any portion of the Guaranteed Obligations which has
not been paid. Without limiting the generality of the foregoing, if
Administrative Agent is awarded a judgment in any suit brought to enforce any
Guarantor's covenant to pay a portion of the Guaranteed Obligations, such
judgment shall not be deemed to release such Guarantor from its covenant to pay
the portion of the Guaranteed Obligations that is not the subject of such suit,
and such judgment shall not, except to the extent satisfied by such Guarantor,
limit, affect, modify or abridge any other Guarantor's liability hereunder in
respect of the Guaranteed Obligations;
(e) any Beneficiary, upon such terms as it deems appropriate,
without notice or demand and without affecting the validity or enforceability
hereof or giving rise to any reduction, limitation, impairment, discharge or
termination of any Guarantor's liability hereunder, from time to time may
(i) renew, extend, accelerate, increase the rate of interest on, or otherwise
change the time, place, manner or terms of payment of the Guaranteed
Obligations; (ii) settle, compromise, release or discharge, or accept or refuse
any offer of performance with respect to, or substitutions for, the Guaranteed
Obligations or any agreement relating thereto and/or subordinate the payment of
the same to the payment of any other obligations; (iii) request and accept
other guaranties of the Guaranteed Obligations and take and hold security for
the payment hereof or the Guaranteed Obligations; (iv) release, surrender,
exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or
modify, with or without consideration, any security for payment of the
Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or
any other obligation of any Person (including any other Guarantor) with respect
to the Guaranteed Obligations; (v) enforce and apply any security now or
hereafter held by or for the benefit of such Beneficiary in respect hereof or
the Guaranteed Obligations and direct the order or manner of sale thereof, or
exercise any other right or remedy that such Beneficiary may have against any
such security, in each case as such Beneficiary in its discretion may determine
consistent herewith or the applicable Financial Hedge Agreement and any
applicable security agreement, including foreclosure on any such security
pursuant to one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable, and even though such action
operates to impair or extinguish any right of reimbursement or subrogation or
other right or remedy of any Guarantor against Company or any security for the
Guaranteed Obligations; and (vi) exercise any other rights available to it
under the Credit Documents or the Financial Hedge Agreements; and
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(f) this Guaranty and the obligations of Guarantors hereunder
shall be valid and enforceable and shall not be subject to any reduction,
limitation, impairment, discharge or termination for any reason (other than
payment in full of the Guaranteed Obligations), including the occurrence of any
of the following, whether or not any Guarantor shall have had notice or
knowledge of any of them: (i) any failure or omission to assert or enforce or
agreement or election not to assert or enforce, or the stay or enjoining, by
order of court, by operation of law or otherwise, of the exercise or
enforcement of, any claim or demand or any right, power or remedy (whether
arising under the Credit Documents or the Financial Hedge Agreements, at law,
in equity or otherwise) with respect to the Guaranteed Obligations or any
agreement relating thereto, or with respect to any other guaranty of or
security for the payment of the Guaranteed Obligations; (ii) any rescission,
waiver, amendment or modification of, or any consent to departure from, any of
the terms or provisions (including provisions relating to events of default)
hereof, any of the other Credit Documents, any of the Financial Hedge
Agreements or any agreement or instrument executed pursuant thereto, or of any
other guaranty or security for the Guaranteed Obligations, in each case whether
or not in accordance with the terms hereof or such Credit Document, such
Financial Hedge Agreement or any agreement relating to such other guaranty or
security; (iii) the Guaranteed Obligations, or any agreement relating thereto,
at any time being found to be illegal, invalid or unenforceable in any respect;
(iv) the application of payments received from any source (other than payments
received pursuant to the other Credit Documents or any of the Financial Hedge
Agreements or from the proceeds of any security for the Guaranteed Obligations,
except to the extent such security also serves as collateral for indebtedness
other than the Guaranteed Obligations) to the payment of indebtedness other
than the Guaranteed Obligations, even though any Beneficiary might have elected
to apply such payment to any part or all of the Guaranteed Obligations; (v) any
Beneficiary's consent to the change, reorganization or termination of the
corporate structure or existence of Holdings or any of its Subsidiaries and to
any corresponding restructuring of the Guaranteed Obligations; (vi) any failure
to perfect or continue perfection of a security interest in any collateral
which secures any of the Guaranteed Obligations; (vii) any defenses, set-offs
or counterclaims which Company may allege or assert against any Beneficiary in
respect of the Guaranteed Obligations, including failure of consideration,
breach of warranty, payment, statute of frauds, statute of limitations, accord
and satisfaction and usury; and (viii) any other act or thing or omission, or
delay to do any other act or thing, which may or might in any manner or to any
extent vary the risk of any Guarantor as an obligor in respect of the
Guaranteed Obligations.
7.5. WAIVERS BY GUARANTORS. Each Guarantor hereby waives, for the
benefit of Beneficiaries: (a) any right to require any Beneficiary, as a
condition of payment or performance by such Guarantor, to (i) proceed against
Company, any other guarantor (including any other Guarantor) of the Guaranteed
Obligations or any other Person, (ii) proceed against or exhaust any security
held from Company, any such other guarantor or any other Person, (iii) proceed
against or have resort to any balance of any Deposit Account or credit on the
books of any Beneficiary in favor of Company or any other Person, or
(iv) pursue any other remedy in the power of any Beneficiary whatsoever; (b)
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any defense arising by reason of the incapacity, lack of authority or any
disability or other defense of Company or any other Guarantor including any
defense based on or arising out of the lack of validity or the unenforceability
of the Guaranteed Obligations or any agreement or instrument relating thereto
or by reason of the cessation of the liability of Company or any other
Guarantor from any cause other than payment in full of the Guaranteed
Obligations; (c) any defense based upon any statute or rule of law which
provides that the obligation of a surety must be neither larger in amount nor
in other respects more burdensome than that of the principal; (d) any defense
based upon any Beneficiary's errors or omissions in the administration of the
Guaranteed Obligations, except behavior which amounts to bad faith; (e) (i) any
principles or provisions of law, statutory or otherwise, which are or might be
in conflict with the terms hereof and any legal or equitable discharge of such
Guarantor's obligations hereunder, (ii) the benefit of any statute of
limitations affecting such Guarantor's liability hereunder or the enforcement
hereof, (iii) any rights to set-offs, recoupments and counterclaims, and
(iv) promptness, diligence and any requirement that any Beneficiary protect,
secure, perfect or insure any security interest or lien or any property subject
thereto; (f) notices, demands, presentments, protests, notices of protest,
notices of dishonor and notices of any action or inaction, including acceptance
hereof, notices of default hereunder, the Financial Hedge Agreements or any
agreement or instrument related thereto, notices of any renewal, extension or
modification of the Guaranteed Obligations or any agreement related thereto,
notices of any extension of credit to Company and notices of any of the matters
referred to in Section 7.4 and any right to consent to any thereof; and (g) any
defenses or benefits that may be derived from or afforded by law which limit
the liability of or exonerate guarantors or sureties, or which may conflict
with the terms hereof.
7.6. GUARANTORS' RIGHTS OF SUBROGATION, CONTRIBUTION, ETC. Until the
Guaranteed Obligations shall have been indefeasibly paid in full and the
Revolving Commitments shall have terminated and all Letters of Credit shall
have expired or been cancelled, each Guarantor hereby waives any claim, right
or remedy, direct or indirect, that such Guarantor now has or may hereafter
have against Company or any other Guarantor or any of its assets in connection
with this Guaranty or the performance by such Guarantor of its obligations
hereunder, in each case whether such claim, right or remedy arises in equity,
under contract, by statute, under common law or otherwise and including without
limitation (a) any right of subrogation, reimbursement or indemnification that
such Guarantor now has or may hereafter have against Company with respect to
the Guaranteed Obligations, (b) any right to enforce, or to participate in, any
claim, right or remedy that any Beneficiary now has or may hereafter have
against Company, and (c) any benefit of, and any right to participate in, any
collateral or security now or hereafter held by any Beneficiary. In addition,
until the Guaranteed Obligations shall have been indefeasibly paid in full and
the Revolving Commitments shall have terminated and all Letters of Credit shall
have expired or been cancelled, each Guarantor shall withhold exercise of any
right of contribution such Guarantor may have against any other guarantor
(including any other Guarantor) of the Guaranteed Obligations, including,
without limitation, any such right of contribution as contemplated by Section
7.2. Each Guarantor further agrees that, to the extent the waiver or agreement
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to withhold the exercise of its rights of subrogation, reimbursement,
indemnification and contribution as set forth herein is found by a court of
competent jurisdiction to be void or voidable for any reason, any rights of
subrogation, reimbursement or indemnification such Guarantor may have against
Company or against any collateral or security, and any rights of contribution
such Guarantor may have against any such other guarantor, shall be junior and
subordinate to any rights any Beneficiary may have against Company, to all
right, title and interest any Beneficiary may have in any such collateral or
security, and to any right any Beneficiary may have against such other
guarantor. If any amount shall be paid to any Guarantor on account of any such
subrogation, reimbursement, indemnification or contribution rights at any time
when all Guaranteed Obligations shall not have been finally and indefeasibly
paid in full, such amount shall be held in trust for Administrative Agent on
behalf of Beneficiaries and shall forthwith be paid over to Administrative
Agent for the benefit of Beneficiaries to be credited and applied against the
Guaranteed Obligations, whether matured or unmatured, in accordance with the
terms hereof.
7.7. SUBORDINATION OF OTHER OBLIGATIONS. Any Indebtedness of Company
or any Guarantor now or hereafter held by any Guarantor (the "OBLIGEE
GUARANTOR") is hereby subordinated in right of payment to the Guaranteed
Obligations, and any such indebtedness collected or received by the Obligee
Guarantor after an Event of Default has occurred and is continuing shall be
held in trust for Administrative Agent on behalf of Beneficiaries and shall
forthwith be paid over to Administrative Agent for the benefit of Beneficiaries
to be credited and applied against the Guaranteed Obligations but without
affecting, impairing or limiting in any manner the liability of the Obligee
Guarantor under any other provision hereof.
7.8. CONTINUING GUARANTY. This Guaranty is a continuing guaranty and
shall remain in effect until all of the Guaranteed Obligations shall have been
paid in full and the Revolving Commitments shall have terminated and all
Letters of Credit shall have expired or been cancelled. Each Guarantor hereby
irrevocably waives any right to revoke this Guaranty as to future transactions
giving rise to any Guaranteed Obligations.
7.9. AUTHORITY OF GUARANTORS OR COMPANY. It is not necessary for any
Beneficiary to inquire into the capacity or powers of any Guarantor or Company
or the officers, directors or any agents acting or purporting to act on behalf
of any of them.
7.10. FINANCIAL CONDITION OF COMPANY. Any Credit Extension may be made
to Company or continued from time to time, and any Financial Hedge Agreements
may be entered into from time to time, in each case without notice to or
authorization from any Guarantor regardless of the financial or other condition
of Company at the time of any such grant or continuation or at the time such
Financial Hedge Agreement is entered into, as the case may be. No Beneficiary
shall have any obligation to disclose or discuss with any Guarantor its
assessment, or any Guarantor's assessment, of the financial condition of
Company. Each Guarantor has adequate means to obtain information from Company
on a continuing basis concerning the financial condition of Company and its
ability to perform its obligations under the Credit Documents and the Financial
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Hedge Agreements, and each Guarantor assumes the responsibility for being and
keeping informed of the financial condition of Company and of all circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations. Each
Guarantor hereby waives and relinquishes any duty on the part of any
Beneficiary to disclose any matter, fact or thing relating to the business,
operations or conditions of Company now known or hereafter known by any
Beneficiary.
7.11. BANKRUPTCY, ETC. (a)Without limiting any Guarantor's ability to
file a voluntary bankruptcy petition in respect of itself, so long as any
Guaranteed Obligations remain outstanding, no Guarantor shall, without the
prior written consent of Administrative Agent acting pursuant to the
instructions of Requisite Lenders, commence or join with any other Person in
commencing any bankruptcy, reorganization or insolvency case or proceeding of
or against Company or any other Guarantor. The obligations of Guarantors
hereunder shall not be reduced, limited, impaired, discharged, deferred,
suspended or terminated by any case or proceeding, voluntary or involuntary,
involving the bankruptcy, insolvency, receivership, reorganization, liquidation
or arrangement of Company or any other Guarantor or by any defense which
Company or any other Guarantor may have by reason of the order, decree or
decision of any court or administrative body resulting from any such
proceeding.
(b) Each Guarantor acknowledges and agrees that any interest on
any portion of the Guaranteed Obligations which accrues after the commencement
of any case or proceeding referred to in clause (a) above (or, if interest on
any portion of the Guaranteed Obligations ceases to accrue by operation of law
by reason of the commencement of such case or proceeding, such interest as
would have accrued on such portion of the Guaranteed Obligations if such case
or proceeding had not been commenced) shall be included in the Guaranteed
Obligations because it is the intention of Guarantors and Beneficiaries that
the Guaranteed Obligations which are guaranteed by Guarantors pursuant hereto
should be determined without regard to any rule of law or order which may
relieve Company of any portion of such Guaranteed Obligations. Guarantors will
permit any trustee in bankruptcy, receiver, debtor in possession, assignee for
the benefit of creditors or similar person to pay Administrative Agent, or
allow the claim of Administrative Agent in respect of, any such interest
accruing after the date on which such case or proceeding is commenced.
(c) In the event that all or any portion of the Guaranteed
Obligations are paid by Company, the obligations of Guarantors hereunder shall
continue and remain in full force and effect or be reinstated, as the case may
be, in the event that all or any part of such payment(s) are rescinded or
recovered directly or indirectly from any Beneficiary as a preference,
fraudulent transfer or otherwise, and any such payments which are so rescinded
or recovered shall constitute Guaranteed Obligations for all purposes
hereunder.
7.12. DISCHARGE OF GUARANTY UPON SALE OF GUARANTOR. If all of the
Capital Stock of any Guarantor or any of its successors in interest hereunder
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shall be sold or otherwise disposed of (including by merger or consolidation)
in a transaction consummated in accordance with the terms and conditions
hereof, the Guaranty of such Guarantor or such successor in interest, as the
case may be, hereunder shall automatically be discharged and released without
any further action by any Beneficiary or any other Person effective as of the
time of such disposition.
SECTION 8. EVENTS OF DEFAULT
8.1. EVENTS OF DEFAULT. If any one or more of the following conditions
or events shall occur:
(a) Failure to Make Payments When Due. Failure by Company to
pay (i) when due any installment of principal of any Loan, whether at stated
maturity, by acceleration, by notice of voluntary prepayment, by mandatory
prepayment or otherwise; (ii) when due any amount payable to Issuing Bank in
reimbursement of any Letter of Credit Disbursement; or (iii) any interest on
any Loan or any fee or any other amount due hereunder within three days after
the date due; or
(b) Default in Other Agreements. (i) Failure of any Credit
Party or any of their respective Subsidiaries to pay when due any principal of
or interest on or any other amount payable in respect of one or more items of
Indebtedness (other than Indebtedness referred to in Section 8.1(a)) in an
individual principal amount of $5,000,000 or more or with an aggregate
principal amount of $15,000,000 or more, in each case beyond the grace period,
if any, provided therefor; or (ii) breach or default by any Credit Party
with respect to any other material term of (1) one or more items of
Indebtedness in the individual or aggregate principal amounts referred to in
clause (i) above or (2) any loan agreement, mortgage, indenture or other
agreement relating to such item(s) of Indebtedness, in each case beyond the
grace period, if any, provided therefor, if the effect of such breach or
default is to cause, or to permit the holder or holders of that Indebtedness
(or a trustee on behalf of such holder or holders), to cause, that
Indebtedness to become or be declared due and payable (or redeemable) prior
to its stated maturity or the stated maturity of any underlying obligation,
as the case may be; or
(c) Breach of Certain Covenants. Failure of any Credit Party
to perform or comply with any term or condition contained in Section 2.7,
Section 5.2 (solely in respect of the Company), Section 5.14 or Section 6
or in Section 3 of the Pledge and Security Agreement; or
(d) Breach of Representations, Etc. Any representation,
warranty, certification or other statement made or deemed made by any Credit
Party in any Credit Document or in any statement or certificate at any time
given by any Credit Party or any of its Subsidiaries in writing pursuant hereto
or thereto shall be false in any material respect as of the date made or deemed
made; or
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(e) Other Defaults Under Credit Documents. Any Credit Party
shall default in the performance of or compliance with any term contained
herein or any of the other Credit Documents, other than any such term referred
to in any other Section of this Section 8.1, and such default shall not have
been remedied or waived within 30 days after the earlier of (i) an Authorized
Officer of Company or Holdings becoming aware of such default or (ii) receipt
by Company of notice from Administrative Agent or any Lender of such default;
or
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) A court of competent jurisdiction shall enter a decree or order for relief
in respect of Holdings or any of its Subsidiaries (other than Excluded Foreign
Subsidiaries) in an involuntary case under the Bankruptcy Code or under any
other applicable bankruptcy, insolvency or similar law now or hereafter in
effect, which decree or order is not stayed; or any other similar relief shall
be granted under any applicable federal, state or foreign law; or (ii) an
involuntary case shall be commenced against Holdings or any of its Subsidiaries
(other than an Excluded Foreign Subsidiary) under the Bankruptcy Code or under
any other applicable bankruptcy, insolvency or similar law now or hereafter in
effect; or a decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over Holdings or any of its Subsidiaries
(other than an Excluded Foreign Subsidiary), or over all or a substantial part
of its property, shall have been entered; or there shall have occurred the
involuntary appointment of an interim receiver, trustee or other custodian of
Holdings or any of its Subsidiaries (other than an Excluded Foreign Subsidiary)
for all or a substantial part of its property; or a warrant of attachment,
execution or similar process shall have been issued against any substantial
part of the property of Holdings or any of its Subsidiaries (other than an
Excluded Foreign Subsidiary), and any such event described in this clause
(ii) shall continue for 60 days without having been dismissed, bonded or
discharged; or
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc.
(i) Holdings or any of its Subsidiaries (other than an Excluded Foreign
Subsidiary) shall have an order for relief entered with respect to it or shall
commence a voluntary case under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect, or
shall consent to the entry of an order for relief in an involuntary case, or to
the conversion of an involuntary case to a voluntary case, under any such law,
or shall consent to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of its property; or
Holdings or any of its Subsidiaries (other than Excluded Foreign Subsidiaries)
shall make any assignment for the benefit of creditors; or (ii) Holdings or any
of its Subsidiaries (other than an Excluded Foreign Subsidiary) shall be
unable, or shall fail generally, or shall admit in writing its inability, to
pay its debts as such debts become due; or the board of directors (or similar
governing body or any committee thereof) of Holdings or any of its Subsidiaries
(other than an Excluded Foreign Subsidiary) shall adopt any resolution or
otherwise authorize any action to approve any of the actions referred to herein
or in Section 8.1(f); or
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(h) Judgments and Attachments. Any money judgment, writ or
warrant of attachment or similar process involving (i) in any individual case
an amount in excess of $5,000,000 or (ii) in the aggregate at any time an
amount in excess of $15,000,000 (in either case to the extent not adequately
covered by insurance as to which a solvent and unaffiliated insurance company
has acknowledged coverage) shall be entered or filed against Holdings or any
of its Subsidiaries or any of their respective assets and shall remain
undischarged, unvacated, unbonded or unstayed for a period of 60 days (or in
any event later than five days prior to the date of any proposed sale
thereunder); or
(i) Dissolution. Any order, judgment or decree shall be
entered against any Credit Party decreeing the dissolution or split up of such
Credit Party and such order shall remain undischarged or unstayed for a period
in excess of 30 days; or
(j) Employee Benefit Plans. (i) There shall occur one or more
ERISA Events which individually or in the aggregate (A) have or could
reasonably be expected to have a Material Adverse Effect, (B) have resulted in
liabilities of Holdings, its Subsidiaries or any of their ERISA Affiliates,
taken together, in excess of $10,000,000 which liabilities (1) have continued
for a period of 60 days without being paid, waived or otherwise discharged and
(2) are not being contested in good faith by appropriate proceedings or (ii)
there shall be imposed a Lien or security interest under Section 401(a)(29) or
Section 412(n) of the Internal Revenue Code or under ERISA on Collateral which
Lien or security interest (1) has continued in effect for a period of 60 days
without being discharged and (2) is not being contested in good faith by
appropriate proceedings; or
(k) Change of Control. A Change of Control shall occur; or
(l) Guaranties, Collateral Documents and other Credit
Documents. At any time after the execution and delivery thereof, (i) the
Guaranty for any reason, other than the satisfaction in full of all
Obligations, shall cease to be in full force and effect (other than in
accordance with its terms) or shall be declared to be null and void or any
Guarantor shall repudiate its obligations thereunder, (ii) this Agreement or
any Collateral Document ceases to be in full force and effect (other than by
reason of a release of Collateral in accordance with the terms hereof or
thereof or the satisfaction in full of the Obligations in accordance with the
terms hereof) or shall be declared null and void, or Collateral Agent shall not
have or shall cease to have a valid and perfected Lien in any Collateral
purported to be covered by the Collateral Documents with the priority required
by the relevant Collateral Document (unless released pursuant to the terms of
the Credit Documents), in each case for any reason other than the failure of
Collateral Agent or any Secured Party to take any action within its control, or
(iii) any Credit Party shall contest the validity or enforceability of any
Credit Document in writing or deny in writing that it has any further
liability, including with respect to future advances by Lenders, under any
Credit Document to which it is a party;
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THEN,(1) upon the occurrence of any Event of Default described in Section 8.1(f)
or 8.1(g)with respect to Company or Holdings, automatically, and(2) so long as
any other Event of Default shall be continuing, at the request of (or with the
consent of) Requisite Lenders, upon notice to Company by Administrative Agent,
(A) the Revolving Commitments, if any, of each Lender having such Revolving
Commitments and the obligation of Issuing Bank to issue any Letter of Credit
shall immediately terminate; (B) each of the following shall immediately become
due and payable, in each case without presentment, demand, protest or other
requirements of any kind, all of which are hereby expressly waived by each
Credit Party: (I) the unpaid principal amount of and accrued interest on the
Loans, (II) an amount equal to the maximum amount that may at any time be drawn
under all Letters of Credit then outstanding (regardless of whether any
beneficiary under any such Letter of Credit shall have presented, or shall be
entitled at such time to present, the drafts or other documents or certificates
required to draw under such Letters of Credit), and (III) all other
Obligations; provided, the foregoing shall not affect in any way the
obligations of Lenders under Section 2.3(b)(iv) or Section 2.4(e); (C)
Administrative Agent may cause the Collateral Agent to enforce any and all
Liens and security interests created pursuant to Collateral Documents; and
(D) Administrative Agent shall direct Company to pay (and Company hereby agrees
upon receipt of such notice, or upon the occurrence of any Event of Default
specified in Section 8.1(f) and (g) to pay) to Administrative Agent such
additional amounts of cash, to be held as security for Company's reimbursement
Obligations in respect of Letters of Credit then outstanding, equal to the
Letter of Credit Usage at such time.
SECTION 9. AGENTS
9.1. APPOINTMENT OF AGENTS. JPMCB is hereby appointed Syndication
Agent hereunder, and each Lender hereby authorizes Syndication Agent to act as
its agent in accordance with the terms hereof and the other Credit Documents.
GSCP is hereby appointed Administrative Agent hereunder and under the other
Credit Documents and each Lender hereby authorizes Administrative Agent to act
as its agent in accordance with the terms hereof and the other Credit
Documents. Fleet National Bank is hereby appointed Collateral Agent hereunder
and under the other Credit Documents and each Lender hereby authorizes
Collateral Agent to act as its agent in accordance with the terms hereof and
the other Credit Documents. Each Agent hereby agrees to act upon the express
conditions contained herein and the other Credit Documents, as applicable. The
provisions of this Section 9 are solely for the benefit of Agents and Lenders
and no Credit Party shall have any rights as a third party beneficiary of any
of the provisions thereof. In performing its functions and duties hereunder,
each Agent shall act solely as an agent of Lenders and does not assume and
shall not be deemed to have assumed any obligation towards or relationship of
agency or trust with or for Holdings or any of its Subsidiaries. Syndication
Agent, without consent of or notice to any party hereto, may assign any and all
of its rights or obligations hereunder to any of its Affiliates. As of the
Closing Date, each of JPMCB, in its capacity as Syndication Agent, and General
Electric Capital Corporation and The Royal Bank of Scotland, in their
capacities as Co-Documentation Agents, shall not have any obligations but shall
be entitled to all benefits of this Section 9.
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9.2. POWERS AND DUTIES. Each Lender irrevocably authorizes each Agent
to take such action on such Lender's behalf and to exercise such powers, rights
and remedies hereunder and under the other Credit Documents as are specifically
delegated or granted to such Agent by the terms hereof and thereof, together
with such powers, rights and remedies as are reasonably incidental thereto.
Each Agent shall have only those duties and responsibilities that are expressly
specified herein and the other Credit Documents. Each Agent may exercise such
powers, rights and remedies and perform such duties by or through its agents or
employees. No Agent shall have, by reason hereof or any of the other Credit
Documents, a fiduciary relationship in respect of any Lender; and nothing
herein or any of the other Credit Documents, expressed or implied, is intended
to or shall be so construed as to impose upon any Agent any obligations in
respect hereof or any of the other Credit Documents except as expressly set
forth herein or therein.
9.3. GENERAL IMMUNITY.
(a) No Responsibility for Certain Matters. No Agent shall have
any duties or obligations except those expressly set forth herein, nor shall
any Agent be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing. Without limiting the
generality of the foregoing, no Agent shall be responsible to any Lender for
the execution, effectiveness, genuineness, validity, enforceability,
collectability or sufficiency hereof or any other Credit Document or for any
representations, warranties, recitals or statements made herein or therein or
made in any written or oral statements or in any financial or other statements,
instruments, reports or certificates or any other documents furnished or made
by any Agent to Lenders or by or on behalf of any Credit Party to any Agent or
any Lender in connection with the Credit Documents and the transactions
contemplated thereby or for the financial condition or business affairs of any
Credit Party or any other Person liable for the payment of any Obligations, nor
shall any Agent be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or agreements
contained in any of the Credit Documents or as to the use of the proceeds of
the Loans or as to the existence or possible existence of any Event of Default
or Default. Except as expressly set forth herein, no Agent shall have any duty
to disclose, and shall not be liable for the failure to disclose, any
information relating to any Credit Party that is communicated to or obtained by
such Agent or any of its Affiliates in any capacity. Anything contained herein
to the contrary notwithstanding, Administrative Agent shall not have any
liability arising from confirmations of the amount of outstanding Loans or the
Letter of Credit Usage or the component amounts thereof.
(b) Exculpatory Provisions. No Agent nor any of its officers,
partners, directors, employees or agents shall be liable to Lenders for any
action taken or omitted by any Agent under or in connection with any of the
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Credit Documents except to the extent caused by such Agent's gross negligence
or willful misconduct. Each Agent shall be entitled to refrain from any act or
the taking of any action (including the failure to take an action) in
connection herewith or any of the other Credit Documents or from the exercise
of any power, discretion or authority vested in it hereunder or thereunder
unless and until such Agent shall have received instructions in respect thereof
from Requisite Lenders (or such other Lenders as may be required to give such
instructions under Section 10.5) and, upon receipt of such instructions from
Requisite Lenders (or such other Lenders, as the case may be), such Agent shall
be entitled to act or (where so instructed) refrain from acting, or to exercise
such power, discretion or authority, in accordance with such instructions. Any
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed
or sent by the proper Person. Any Agent also may rely upon any statement made
to it orally or by telephone and believed by it to be made by the proper
Person, and shall not incur any liability for relying thereon. Any Agent may
consult with legal counsel (who may be counsel for Company), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
9.4. AGENTS ENTITLED TO ACT AS LENDER. The agency hereby created shall
in no way impair or affect any of the rights and powers of, or impose any
duties or obligations upon, any Agent in its individual capacity as a Lender
hereunder. With respect to its participation in the Loans and the Letters of
Credit, each Agent shall have the same rights and powers hereunder as any other
Lender and may exercise the same as if it were not performing the duties and
functions delegated to it hereunder, and the term "Lender" shall, unless the
context clearly otherwise indicates, include each Agent in its individual
capacity. Any Agent and its Affiliates may accept deposits from, lend money
to, own securities of, and generally engage in any kind of banking, trust,
financial advisory or other business with Holdings or any of its Affiliates as
if it were not performing the duties specified herein, and may accept fees and
other consideration from Company for services in connection herewith and
otherwise without having to account for the same to Lenders.
9.5. LENDERS' REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENT.
(a) Each Lender represents and warrants that it has made its
own independent investigation of the financial condition and affairs of
Holdings and its Subsidiaries in connection with Credit Extensions hereunder
and that it has made and shall continue to make its own appraisal of the
creditworthiness of Holdings and its Subsidiaries. No Agent shall have any
duty or responsibility, either initially or on a continuing basis, to make any
such investigation or any such appraisal on behalf of Lenders or to provide any
Lender with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans or at any time or
times thereafter, and no Agent shall have any responsibility with respect to
the accuracy of or the completeness of any information provided to Lenders.
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(b) [Intentionally omitted.]
9.6. RIGHT TO INDEMNITY. Each Lender, in proportion to its Pro Rata
Share, severally agrees to indemnify each Agent, to the extent that such Agent
shall not have been reimbursed by any Credit Party, for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against such Agent in exercising its powers, rights and
remedies or performing its duties hereunder or under the other Credit Documents
or otherwise in its capacity as such Agent in any way relating to or arising
out hereof or the other Credit Documents; provided, no Lender 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. If any indemnity furnished to
any Agent for any purpose shall, in the opinion of such Agent, be insufficient
or become impaired, such Agent may call for additional indemnity and cease, or
not commence, to do the acts indemnified against until such additional
indemnity is furnished; provided, in no event shall this sentence require any
Lender to indemnify any Agent against any liability, obligation, loss, damage,
penalty, action, judgment, suit, cost, expense or disbursement in excess of
such Lender's Pro Rata Share thereof; and provided, further, this sentence
shall not be deemed to require any Lender to indemnify any Agent against any
liability, obligation, loss, damage, penalty, action, judgment, suit, cost,
expense or disbursement described in the proviso in the immediately preceding
sentence.
9.7. SUB-AGENTS. Each Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by such Agent. Each Agent and any such sub-agent may perform any and
all its duties and exercise its rights and powers through their respective
Affiliates. The exculpatory provisions of the preceding paragraphs shall apply
to any such sub-agent and to the Affiliates of each Agent and any such sub-
agent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as such Agent.
9.8. SUCCESSOR ADMINISTRATIVE AGENT, COLLATERAL AGENT AND SWING LINE
LENDER.
(a) Administrative Agent and Collateral Agent. Each of
Administrative Agent and Collateral Agent may resign at any time by giving 30
days' prior written notice thereof to Lenders and Company, and each of
Administrative Agent and Collateral Agent may be removed at any time with or
without cause by an instrument or concurrent instruments in writing delivered
to Company and Administrative Agent or Collateral Agent, as applicable, and
signed by Requisite Lenders. Upon any such notice of resignation or any such
removal, Requisite Lenders shall have the right, upon five Business Days'
notice to Company, to appoint a successor Administrative Agent or Collateral
Agent with Company's consent (not to be unreasonably withheld) unless an Event
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of Default has occurred and is continuing or such successor is a Lender, in
each of which cases Company's consent need not be obtained. Upon the
acceptance of any appointment as Administrative Agent or Collateral Agent
hereunder by a successor Administrative Agent or Collateral Agent, that
successor Administrative Agent or Collateral Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring or removed Administrative Agent or Collateral Agent and the retiring
or removed Administrative Agent or Collateral Agent shall promptly (i) transfer
to such successor Administrative Agent all sums, Securities and other items of
Collateral held under the Collateral Documents, together with all records and
other documents necessary or appropriate in connection with the performance of
the duties of the successor Administrative Agent or Collateral Agent under the
Credit Documents, and (ii) execute and deliver to such successor Administrative
Agent or Collateral Agent such amendments to financing statements, and take
such other actions, as may be necessary or appropriate in connection with the
assignment to such successor Administrative Agent or Collateral Agent of the
security interests created under the Collateral Documents, whereupon such
retiring or removed Administrative Agent or Collateral Agent shall be
discharged from its duties and obligations hereunder. After any retiring or
removed Administrative Agent's or Collateral Agent's resignation or removal
hereunder as Administrative Agent or Collateral Agent, the provisions of this
Section 9 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent hereunder.
(b) Swing Line Lender. Swing Line Lender may be replaced at
any time by written agreement among Company, Administrative Agent, the replaced
Swing Line Lender and the successor Swing Line Lender. Administrative Agent
shall notify the Lenders of any such replacement of Swing Line Lender. At the
time any such replacement shall become effective, (i) Company shall prepay any
outstanding Swing Line Loans made by the retiring or removed Swing Line Lender,
(ii) upon such prepayment, the retiring or removed Swing Line Lender shall
surrender any Swing Line Note held by it to Company for cancellation, and
(iii) Company shall issue, if so requested by successor Swing Line Loan Lender,
a new Swing Line Note to the successor Swing Line Lender, in the principal
amount of the Swing Line Loan Sublimit then in effect and with other
appropriate insertions.
9.9. COLLATERAL DOCUMENTS AND GUARANTY.
(a) Agents under Collateral Documents and Guaranty. Each
Lender hereby further authorizes Administrative Agent or Collateral Agent, as
applicable, on behalf of and for the benefit of Lenders, to be the agent for
and representative of Lenders with respect to the Guaranty, the Collateral and
the Collateral Documents. Subject to Section 10.5, without further written
consent or authorization from Lenders, Administrative Agent or Collateral
Agent, as applicable may execute any documents or instruments necessary to
(i) release any Lien encumbering any item of Collateral that is the subject
of a sale or other disposition of assets permitted hereby or to which
Requisite Lenders (or such other Lenders as may be required to give such
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consent under Section 10.5) have otherwise consented or (ii) release any
Guarantor from the Guaranty pursuant to Section 7.12 or with respect to which
Requisite Lenders (or such other Lenders as may be required to give such
consent under Section 10.5) have otherwise consented.
(b) Right to Realize on Collateral and Enforce Guaranty.
Anything contained in any of the Credit Documents to the contrary
notwithstanding, Company, Administrative Agent and each Lender hereby agree
that (i) no Lender shall have any right individually to realize upon any of the
Collateral or to enforce the Guaranty, it being understood and agreed that all
powers, rights and remedies hereunder may be exercised solely by Administrative
Agent, on behalf of Lenders in accordance with the terms hereof and all powers,
rights and remedies under the Collateral Documents may be exercised solely by
Collateral Agent, and (ii) in the event of a foreclosure by Collateral Agent on
any of the Collateral pursuant to a public or private sale, Collateral Agent or
any Lender may be the purchaser of any or all of such Collateral at any such
sale and Collateral Agent, as agent for and representative of Secured Parties
(but not any Lender or Lenders in its or their respective individual capacities
unless Requisite Lenders shall otherwise agree in writing) shall be entitled,
for the purpose of bidding and making settlement or payment of the purchase
price for all or any portion of the Collateral sold at any such public sale, to
use and apply any of the Obligations as a credit on account of the purchase
price for any collateral payable by Collateral Agent at such sale.
SECTION 10. MISCELLANEOUS
10.1. NOTICES. Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted to be given to a
Credit Party, Syndication Agent, Collateral Agent, Administrative Agent, Swing
Line Lender or Issuing Bank shall be sent to such Person's address as set forth
on Appendix B or in the other relevant Credit Document, and in the case of any
Lender, the address as indicated on Appendix B or otherwise indicated to
Administrative Agent in writing. Each notice hereunder shall be in writing and
may be personally served, telexed or sent by telefacsimile or United States
mail or courier service and shall be deemed to have been received when
delivered in person or by courier service and signed for against receipt
thereof, upon receipt of telefacsimile or telex, or three Business Days after
depositing it in the United States mail with postage prepaid and properly
addressed; provided, no notice to any Agent, Swing Line Lender or Issuing Bank
shall be effective until received by such Person.
10.2. EXPENSES. Whether or not the transactions contemplated hereby
shall be consummated, Company agrees to pay promptly (a)all the actual and
reasonable costs and expenses of preparation of the Credit Documents and any
consents, amendments, waivers or other modifications thereto; (b)all the costs
of furnishing all opinions by counsel for Company and the other Credit Parties;
(c)the reasonable out-of-pocket fees, expenses and disbursements of outside
counsel to Agents in connection with the negotiation, preparation, execution
and administration of the Credit Documents and any consents, amendments,
waivers or other modifications thereto and any other documents or matters
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requested by Company; (d) all the out-of-pocket actual costs and reasonable
expenses of creating and perfecting Liens in favor of Collateral Agent, for the
benefit of Lenders pursuant hereto, including filing and recording fees,
expenses and taxes, stamp or documentary taxes, search fees, title insurance
premiums and reasonable fees, expenses and disbursements of counsel to each
Agent and of counsel providing any opinions that any Agent or Requisite Lenders
may request in respect of the Collateral or the Liens created pursuant to the
Collateral Documents;(e)all the out-of-pocket actual costs and reasonable fees,
expenses and disbursements of any auditors, accountants, consultants or
appraisers; (f) all the out-of-pocket actual costs and reasonable expenses
(including the reasonable fees, expenses and disbursements of any appraisers,
consultants, advisors and agents employed or retained by Collateral Agent and
its counsel) in connection with the custody or preservation of any of the
Collateral;(g) all other out-of-pocket actual and reasonable costs and expenses
incurred by each Agent in connection with the syndication of the Loans and
Commitments and the negotiation, preparation and execution of the Credit
Documents and any consents, amendments, waivers or other modifications thereto
and the transactions contemplated thereby; and (h) after the occurrence of a
Default or an Event of Default, (i) all costs and expenses of inspections and
visits by any Agent or Lender pursuant to Section 5.6 and (ii) all out-of-
pocket costs and expenses, including reasonable attorneys' fees and costs of
settlement, incurred by any Agent and Lenders in enforcing any Obligations of
or in collecting any payments due from any Credit Party hereunder or under the
other Credit Documents by reason of such Default or Event of Default (including
in connection with the sale of, collection from, or other realization upon any
of the Collateral or the enforcement of the Guaranty) or in connection with any
refinancing or restructuring of the credit arrangements provided hereunder in
the nature of a "work-out" or pursuant to any insolvency or bankruptcy cases or
proceedings.
10.3. INDEMNITY.
(a) In addition to the payment of expenses pursuant to Section
10.2, whether or not the transactions contemplated hereby shall be consummated,
each Credit Party agrees to defend (subject to Indemnitees' selection of
counsel), indemnify, pay and hold harmless, each Agent and Lender and the
officers, partners, directors, trustees, employees, agents and Affiliates of
each Agent and each Lender (each, an "INDEMNITEE"), from and against any and
all Indemnified Liabilities; provided, no Credit Party shall have any
obligation to any Indemnitee hereunder with respect to any Indemnified
Liabilities to the extent such Indemnified Liabilities arise from the gross
negligence or willful misconduct of that Indemnitee, and provided, further, no
Credit Party shall have any obligation to Issuing Bank in the event of the
wrongful dishonor by Issuing Bank of a proper demand for payment made under any
Letter of Credit issued by it (it being understood that no dishonor as a result
of a Governmental Act shall constitute a wrongful dishonor). To the extent
that the undertakings to defend, indemnify, pay and hold harmless set forth in
this Section 10.3 may be unenforceable in whole or in part because they are
violative of any law or public policy, the applicable Credit Party shall
contribute the maximum portion that it is permitted to pay and satisfy under
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applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them. To the extent permitted by applicable
law, no Credit Party shall assert, and each hereby waives, any claim against
any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, any Credit Document or
any agreement or instrument or transaction contemplated hereby.
(b) To the extent permitted by applicable law, neither Holdings
nor any of its Subsidiaries or Affiliates shall assert, and hereby waives, any
claim against any Lender or any of their Affiliates, directors, employees,
attorneys or agents, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
(whether or not the claim therefor is based on contract, tort or duty imposed
by any applicable legal requirement) arising out of, in connection with,
arising out of, as a result of, or in any way related to, this Agreement or any
Credit Document or any agreement or instrument contemplated hereby or thereby,
the transactions contemplated hereby or thereby, any Loan or the use of the
proceeds thereof or any act or omission or event occurring in connection
therewith, and Holdings and Company hereby waives, releases and agrees not to
sue upon any such claim or any such damages, whether or not accrued and whether
or not known or suspected to exist in its favor.
10.4. SET-OFF. In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default each Lender is hereby authorized by each
Credit Party at any time or from time to time subject to the consent of
Administrative Agent (such consent not to be unreasonably withheld or delayed),
without notice to any Credit Party or to any other Person (other than
Administrative Agent), any such notice being hereby expressly waived, to set
off and to appropriate and to apply any and all deposits (general or special,
including Indebtedness evidenced by certificates of deposit, whether matured or
unmatured, but not including trust accounts) and any other Indebtedness at any
time held or owing by such Lender to or for the credit or the account of any
Credit Party against and on account of the obligations and liabilities of any
Credit Party to such Lender hereunder, under the Letters of Credit and
participations therein and under the other Credit Documents, including all
claims of any nature or description arising out of or connected herewith or
therewith, irrespective of whether or not (a) such Lender shall have made any
demand hereunder or (b) the principal of or the interest on the Loans or any
amounts in respect of the Letters of Credit or any other amounts due hereunder
shall have become due and payable pursuant to Section 2 and although such
obligations and liabilities, or any of them, may be contingent or unmatured.
Each Credit Party hereby further grants to Administrative Agent and each Lender
a security interest in all Deposit Accounts maintained with Administrative
Agent or such Lender as security for the Obligations.
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10.5. AMENDMENTS AND WAIVERS.
(a) Requisite Lenders' Consent. Subject to Section 10.5(b) and
10.5(c), no amendment, modification, termination or waiver of any provision of
the Credit Documents, or consent to any departure by any Credit Party
therefrom, shall in any event be effective without the written concurrence of
the Requisite Lenders.
(b) Affected Lenders' Consent. Without the written consent of
each Lender (other than a Defaulting Lender) that would be affected thereby,
no amendment, modification, termination, or consent shall be effective if the
effect thereof would:
(i) extend the scheduled final maturity of any Loan or
Note;
(ii) waive, reduce or postpone any scheduled repayment
(but not prepayment);
(iii) extend the stated expiration date of any Letter of
Credit beyond the Revolving Commitment Termination Date;
(iv) reduce the rate of interest on any Loan (other than
any waiver of any increase in the interest rate applicable to any Loan
pursuant to Section 2.10) or any fee payable hereunder;
(v) extend the time for payment of any such interest or
fees;
(vi) reduce the principal amount of any Loan or any
reimbursement obligation in respect of any Letter of Credit;
(vii) amend, modify, terminate or waive any provision of
this Section 10.5(b) or Section 10.5(c);
(viii)amend the definition of "REQUISITE LENDERS" or "PRO
RATA SHARE"; provided, with the consent of Requisite Lenders, additional
extensions of credit pursuant hereto may be included in the
determination of "REQUISITE LENDERS" or "PRO RATA SHARE" on
substantially the same basis as the Term Loan Commitments, the Term
Loans, the Revolving Commitments and the Revolving Loans are included on
the Effective Date;
(ix) release all or substantially all of the Collateral or
all or substantially all of the Guarantors from the Guaranty except as
expressly provided in the Credit Documents; or
(x) consent to the assignment or transfer by any Credit
Party of any of its rights and obligations under any Credit Document.
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(c) Other Consents. No amendment, modification, termination or
waiver of any provision of the Credit Documents, or consent to any departure by
any Credit Party therefrom, shall:
(i) increase any Revolving Commitment of any Lender over
the amount thereof then in effect without the consent of such Lender;
provided, no amendment, modification or waiver of any condition
precedent, covenant, Default or Event of Default shall constitute an
increase in any Revolving Commitment of any Lender;
(ii) amend, modify, terminate or waive any provision
hereof relating to the Swing Line Sublimit or the Swing Line Loans
without the consent of Swing Line Lender;
(iii) amend the definition of "REQUISITE CLASS LENDERS"
without the consent of Requisite Class Lenders of each Class; provided,
with the consent of the Requisite Lenders, additional extensions of
credit pursuant hereto may be included in the determination of such
"REQUISITE CLASS LENDERS" on substantially the same basis as the Term
Loan Commitments, the Term Loans, the Revolving Commitments and the
Revolving Loans are included on the Effective Date;
(iv) alter the required application of any repayments or
prepayments as between Classes pursuant to Section 2.15 without the
consent of Requisite Class Lenders of each Class which is being
allocated a lesser repayment or prepayment as a result thereof;
provided, Requisite Lenders may waive, in whole or in part, any
prepayment so long as the application, as between Classes, of any
portion of such prepayment which is still required to be made is not
altered;
(v) amend, modify, terminate or waive any obligation of
Lenders relating to the issuance of or purchase of participations in
Letters of Credit without the written consent of Administrative Agent
and of Issuing Bank; or
(vi) amend, modify, terminate or waive any provision of
Section 9 as the same applies to any Agent, or any other provision
hereof as the same applies to the rights or obligations of any Agent, in
each case without the consent of such Agent.
(d) Execution of Amendments, etc. Administrative Agent may,
but shall have no obligation to, with the concurrence of any Lender, execute
amendments, modifications, waivers or consents on behalf of such Lender. Any
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which it was given. No notice to or demand on any Credit
Party in any case shall entitle any Credit Party to any other or further notice
or demand in similar or other circumstances. Any amendment, modification,
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termination, waiver or consent effected in accordance with this Section 10.5
shall be binding upon each Lender at the time outstanding, each future Lender
and, if signed by a Credit Party, on such Credit Party.
10.6. SUCCESSORS AND ASSIGNS; PARTICIPATIONS.
(a) Generally. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of the parties hereto and the successors and assigns of Lenders.
No Credit Party's rights or obligations hereunder nor any interest therein may
be assigned or delegated by any Credit Party without the prior written consent
of all Lenders. Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, Affiliates of each of the Agents and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Register. Company, Administrative Agent and Lenders shall
deem and treat the Persons listed as Lenders in the Register as the holders and
owners of the corresponding Commitments and Loans listed therein for all
purposes hereof, and no assignment or transfer of any such Commitment or Loan
shall be effective, in each case, unless and until an Assignment Agreement
effecting the assignment or transfer thereof shall have been delivered to and
accepted by Administrative Agent and recorded in the Register as provided in
Section 10.6(d). Prior to such recordation, all amounts owed with respect to
the applicable Commitment or Loan shall be owed to the Lender listed in the
Register as the owner thereof, and any request, authority or consent of any
Person who, at the time of making such request or giving such authority or
consent, is listed in the Register as a Lender shall be conclusive and binding
on any subsequent holder, assignee or transferee of the corresponding
Commitments or Loans.
(c) Right to Assign. Each Lender shall have the right at any
time to sell, assign or transfer all or a portion of its rights and obligations
under this Agreement, including, without limitation, all or a portion of its
Commitment or Loans owing to it or other Obligation to any Eligible Assignee
upon the giving of notice to Company and Administrative Agent, provided
(i) each such assignment shall be of a uniform, and not
varying, percentage of all rights and obligations under and in respect
of any Loan and any related Commitments and shall not, without Company's
consent, result in payment to such assignee under Sections 2.19(c), 2.20
and 2.21 that would not have been made to the assigning Lender; and
(ii) any assignment to a Person that does not meet the
requirements of clause (i) of the definition of the term "Eligible
Assignee" shall require the prior written consent of Administrative
Agent and, so long as no Event of Default has occurred and is
continuing, Company, in each case not to be unreasonably withheld or
delayed.
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(d) Mechanics. The assigning Lender and the assignee thereof
shall execute and deliver to Administrative Agent an Assignment Agreement,
together with such forms, certificates or other evidence, if any, with respect
to United States federal income tax withholding matters as the assignee under
such Assignment Agreement may be required to deliver to Administrative Agent
pursuant to Section 2.20(c). Any assignment to a Person that does not meet the
requirements of clause (i) of the definition of the term "Eligible Assignee,"
shall be in an aggregate amount of not less than $100,000 (or such lesser
amount as may be agreed by Company and Administrative Agent or as shall
constitute the aggregate amount of a Class of Loans or Commitments of the
assigning Lender).
(e) Notice of Assignment. Upon its receipt of a duly executed
and completed Assignment Agreement, (and any forms, certificates or other
evidence required by this Agreement in connection therewith), Administrative
Agent shall record the information contained in such Assignment Agreement in
the Register, shall give prompt notice thereof to Company and shall maintain a
copy of such Assignment Agreement.
(f) Representations and Warranties of Assignee. Each Lender,
upon execution and delivery hereof or upon executing and delivering an
Assignment Agreement, as the case may be, represents and warrants as of its
Lender Effective Date that (i) it is an Eligible Assignee; (ii) it has
experience and expertise in the making of or investing in commitments or loans
such as the applicable Commitments or Loans, as the case may be; and (iii) it
will make or invest in, as the case may be, its Commitments or Loans for its
own account in the ordinary course of its business and without a view to
distribution of such Commitments or Loans within the meaning of the Securities
Act or the Exchange Act or other federal securities laws (it being understood
that, subject to the provisions of this Section 10.6, the disposition of such
Commitments or Loans or any interests therein shall at all times remain within
its exclusive control).
(g) Effect of Assignment. Subject to the terms and conditions
of this Section 10.6, as of the "Effective Date" specified in the applicable
Assignment Agreement: (i) the assignee thereunder shall have the rights and
obligations of a "Lender" hereunder to the extent such rights and obligations
hereunder have been assigned to it pursuant to such Assignment Agreement and
shall thereafter be a party hereto and a "Lender" for all purposes hereof;
(ii) the assigning Lender thereunder shall, to the extent that rights and
obligations hereunder have been assigned thereby pursuant to such Assignment
Agreement, relinquish its rights (other than any rights which survive the
termination hereof under Section 10.8) and be released from its obligations
hereunder (and, in the case of an Assignment Agreement covering all or the
remaining portion of an assigning Lender's rights and obligations hereunder,
such Lender shall cease to be a party hereto); provided, anything contained in
any of the Credit Documents to the contrary notwithstanding, (A) Issuing Bank
shall continue to have all rights and obligations thereof with respect to such
Letters of Credit until the cancellation or expiration of such Letters of
Credit and the reimbursement of any amounts drawn thereunder and (B) such
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assigning Lender shall continue to be entitled to the benefit of all
indemnities hereunder as specified herein with respect to matters arising out
of the prior involvement of such assigning Lender as a Lender hereunder;
(iii) the Commitments shall be modified to reflect the Commitment of such
assignee and any Revolving Commitment of such assigning Lender, if any; and
(iv) if any such assignment occurs after the issuance of any Note hereunder,
the assigning Lender shall, upon the effectiveness of such assignment or as
promptly thereafter as practicable, surrender its applicable Notes to
Administrative Agent for cancellation, and thereupon Company shall issue and
deliver new Notes, if so requested by the assignee and/or assigning Lender, to
such assignee and/or to such assigning Lender, with appropriate insertions, to
reflect the new Revolving Commitments and/or outstanding Loans of the assignee
and/or the assigning Lender.
(h) Participations. Each Lender shall have the right at any
time to sell, without notice to, or consent of the Company and Administrative
Agent one or more participations to any Person (other than Holdings, any of its
Subsidiaries or any of its Affiliates) in all or any part of its Commitments,
Loans or in any other Obligation. The holder of any such participation, other
than an Affiliate of the Lender granting such participation, shall not be
entitled to require such Lender to take or omit to take any action hereunder
except with respect to any amendment, modification or waiver that would
(i) extend the final scheduled maturity of any Loan, Note or Letter of Credit
(unless such Letter of Credit is not extended beyond the Revolving Commitment
Termination Date) in which such participant is participating, or reduce the
rate or extend the time of payment of interest or fees thereon (except in
connection with a waiver of applicability of any post-default increase in
interest rates) or reduce the principal amount thereof, or increase the amount
of the participant's participation over the amount thereof then in effect (it
being understood that a waiver of any Default or Event of Default or of a
mandatory reduction in the Commitment shall not constitute a change in the
terms of such participation, and that an increase in any Commitment or Loan
shall be permitted without the consent of any participant if the participant's
participation is not increased as a result thereof), (ii) consent to the
assignment or transfer by any Credit Party of any of its rights and obligations
under this Agreement or (iii) release all or substantially all of the
Collateral under the Collateral Documents (except as expressly provided in the
Credit Documents) supporting the Loans hereunder in which such participant is
participating. The Company agrees that each participant shall be entitled to
the benefits of Sections 2.19(c), 2.20 and 2.21 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to paragraph
(c) of this Section; provided, (i) a participant shall not be entitled to
receive any greater payment under Section 2.20 or 2.21 than the applicable
Lender would have been entitled to receive with respect to the participation
sold to such participant, unless the sale of the participation to such
participant is made with Company's prior written consent and (ii) a participant
that would be a Non-US Lender if it were a Lender or would be a US Lender that
is not willing or able to execute a valid Form W-9 shall not be entitled to the
benefits of Section 2.21 unless Company is notified of the participation sold
to such participant and such participant agrees, for the benefit of Company, to
comply with Section 2.21 as though it were a Lender. To the extent permitted
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by law, each participant also shall be entitled to the benefits of Section 10.4
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.17 as though it were a Lender.
(i) Certain Other Assignments. In addition to any other
assignment permitted pursuant to this Section 10.6, (i) any Lender may
assign and/or pledge all or any portion of its Loans, the other
Obligations owed by or to such Lender, and its Notes, if any, to secure
obligations of such Lender including, without limitation, any Federal
Reserve Bank as collateral security pursuant to Regulation A of the
Board of Governors of the Federal Reserve System and any operating
circular issued by such Federal Reserve Bank; provided, no Lender, as
between Company and such Lender, shall be relieved of any of its
obligations hereunder as a result of any such assignment and pledge, and
provided, further, in no event shall the applicable Federal Reserve Bank
or trustee be considered to be a "Lender" or be entitled to require the
assigning Lender to take or omit to take any action hereunder.
10.7. INDEPENDENCE OF COVENANTS. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be permitted by an exception
to, or would otherwise be within the limitations of, another covenant shall not
avoid the occurrence of a Default or an Event of Default if such action is
taken or condition exists.
10.8. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties and agreements made herein shall survive the
execution and delivery hereof and the making of any Credit Extension.
Notwithstanding anything herein or implied by law to the contrary, the
agreements of each Credit Party set forth in Sections 2.19(c), 2.20, 2.21,
10.2, 10.3 and 10.4 and the agreements of Lenders set forth in Sections 2.18
and 9.6 shall survive the payment of the Loans, the cancellation or expiration
of the Letters of Credit and the reimbursement of any amounts drawn
thereunder, and the termination hereof.
10.9. NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the part
of any Agent or any Lender in the exercise of any power, right or privilege
hereunder or under any other Credit Document shall impair such power, right or
privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other power,
right or privilege. The rights, powers and remedies given to each Agent and
each Lender hereby are cumulative and shall be in addition to and independent
of all rights, powers and remedies existing by virtue of any statute or rule of
law or in any of the other Credit Documents or any of the Financial Hedge
Agreements. Any forbearance or failure to exercise, and any delay in
exercising, any right, power or remedy hereunder shall not impair any such
right, power or remedy or be construed to be a waiver thereof, nor shall it
preclude the further exercise of any such right, power or remedy.
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10.10.MARSHALLING; PAYMENTS SET ASIDE. Neither any Agent nor any Lender
shall be under any obligation to marshal any assets in favor of any Credit
Party or any other Person or against or in payment of any or all of the
Obligations. To the extent that any Credit Party makes a payment or payments
to Administrative Agent or Lenders (or to Administrative Agent, on behalf of
Lenders), or Administrative Agent or Lenders enforce any security interests or
exercise their rights of setoff, and such payment or payments or the proceeds
of such enforcement or setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver or any other party under any bankruptcy law, any
other state or federal law, common law or any equitable cause, then, to the
extent of such recovery, the obligation or part thereof originally intended to
be satisfied, and all Liens, rights and remedies therefor or related thereto,
shall be revived and continued in full force and effect as if such payment or
payments had not been made or such enforcement or setoff had not occurred.
10.11.SEVERABILITY. In case any provision in or obligation hereunder or
any Note shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.
10.12.OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS. The
obligations of Lenders hereunder are several and no Lender shall be responsible
for the obligations or Commitment of any other Lender hereunder. Nothing
contained herein or in any other Credit Document, and no action taken by
Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights arising out hereof and it shall not be necessary for any other Lender to
be joined as an additional party in any proceeding for such purpose.
10.13.HEADINGS. Section headings herein are included herein for
convenience of reference only and shall not constitute a part hereof for any
other purpose or be given any substantive effect.
10.14.APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES THEREOF.
10.15.CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST
ANY PARTY HERETO ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT
DOCUMENT, OR ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY
136
EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY HERETO, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND
UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (B)
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL
PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE CREDIT
PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.1; (D)AGREES THAT
SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL
JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN ANY SUCH PROCEEDING IN ANY
SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT; AND (E) AGREES AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY CREDIT
PARTY IN THE COURTS OF ANY OTHER JURISDICTION.
10.16.WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO
WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER CREDIT DOCUMENTS OR
ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN
TRANSACTION OR THE LENDER/COMPANY RELATIONSHIP THAT IS BEING ESTABLISHED. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS
TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND
ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT
THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP,
THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT,
AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE
DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS
REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED
EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY
REFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH OF THE PARTIES HERETO),
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
137
SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS
OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER.
IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO
A TRIAL BY THE COURT.
10.17.CONFIDENTIALITY. Each Lender shall hold all non-public
information regarding Holdings and Company and their business identified as
such by Company and obtained by such Lender pursuant to the requirements hereof
in accordance with such Lender's customary procedures for handling confidential
information of such nature, it being understood and agreed by Holdings and
Company that, in any event, a Lender may make (i) disclosures of such
information to Affiliates of such Lender and to their agents and advisors (and
to other persons authorized by a Lender or Agent to organize, present or
disseminate such information in connection with disclosures otherwise made in
accordance with this Section 10.17), (ii) disclosures of such information
reasonably required by any bona fide or potential assignee, transferee or
participant in connection with the contemplated assignment, transfer or
participation by such Lender of any Loans or any participations therein or by
any direct or indirect contractual counterparties (or the professional advisors
thereto) in Financial Hedge Agreements (provided, such assignees, transferees,
participants, counterparties and advisors are advised of and agree to be
bound by the provisions of this Section 10.17), (iii) disclosure to any rating
agency when required by it, provided, prior to any disclosure, such rating
agency shall undertake in writing to preserve the confidentiality of any
confidential information relating to the Credit Parties received by it from
any of the Agents or any Lender, and (iv) required or requested by any
governmental agency or representative thereof or by the NAIC or pursuant
to legal or judicial process; provided, unless specifically prohibited by
applicable law or court order, each Lender shall make reasonable efforts to
notify Company of any request by any governmental agency or representative
thereof (other than any such request in connection with any examination
of the financial condition or other routine examination of such Lender by
such governmental agency) for disclosure of any such non-public information
prior to disclosure of such information. Notwithstanding anything to the
contrary set forth herein, each party (and each of their respective employees,
representatives or other agents) may disclose to any and all persons, without
limitations of any kind, the tax treatment and tax structure of the
transactions contemplated by this Agreement and all materials of any kind
(including without limitation, opinions and other tax analyses) that are
provided to any such party relating to such tax treatment and tax structure.
However, any information relating to the tax treatment or tax structure
shall remain subject to the confidentiality provisions hereof (and the
foregoing sentence shall not apply) to the extent reasonably necessary to
enable the parties hereto, their respective Affiliates, and their and their
respective Affiliates' directors and employees to comply with applicable
securities laws. For this purpose, "tax structure" means any facts relevant
to the federal income tax treatment of the transactions contemplated by
this Agreement but does not include information relating to the identity of any
of the parties hereto or any of their respective Affiliates.
138
10.18.USURY SAVINGS CLAUSE. Notwithstanding any other provision herein,
the aggregate interest rate charged with respect to any of the Obligations,
including all charges or fees in connection therewith deemed in the nature of
interest under applicable law shall not exceed the Highest Lawful Rate. If the
rate of interest (determined without regard to the preceding sentence) under
this Agreement at any time exceeds the Highest Lawful Rate, the outstanding
amount of the Loans made hereunder shall bear interest at the Highest Lawful
Rate until the total amount of interest due hereunder equals the amount of
interest which would have been due hereunder if the stated rates of interest
set forth in this Agreement had at all times been in effect. In addition, if
when the Loans made hereunder are repaid in full the total interest due
hereunder (taking into account the increase provided for above) is less than
the total amount of interest which would have been due hereunder if the stated
rates of interest set forth in this Agreement had at all times been in effect,
then to the extent permitted by law, Company shall pay to Administrative Agent
an amount equal to the difference between the amount of interest paid and the
amount of interest which would have been paid if the Highest Lawful Rate had at
all times been in effect. Notwithstanding the foregoing, it is the intention
of Lenders and Company to conform strictly to any applicable usury laws.
Accordingly, if any Lender contracts for, charges, or receives any
consideration which constitutes interest in excess of the Highest Lawful Rate,
then any such excess shall be cancelled automatically and, if previously paid,
shall at such Lender's option be applied to the outstanding amount of the Loans
made hereunder or be refunded to Company.
10.19.COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.
Remainder of page intentionally left blank
139
NY12534:136764.9
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
BPC HOLDING CORPORATION
By:
Name:
Title:
BERRY PLASTICS CORPORATION
By:
Name:
Title:
BERRY IOWA CORPORATION
By:
Name:
Title:
PACKERWARE CORPORATION
By:
Name:
Title:
KNIGHT PLASTICS, INC.
By:
Name:
Title:
NY12534:136764.9
BERRY STERLING CORPORATION
By:
Name:
Title:
BERRY PLASTICS DESIGN CORPORATION
By:
Name:
Title:
POLY-SEAL CORPORATION
By:
Name:
Title:
BERRY PLASTICS ACQUISITIONS CORPORATION III
By:
Name:
VENTURE PACKAGING, INC.
By:
Name:
Title:
NY12534:136764.9
VENTURE PACKAGING MIDWEST, INC.
By:
Name:
Title:
BERRY PLASTICS TECHNICAL SERVICES, INC.
By:
Name:
Title:
CPI HOLDING CORPORATION
By:
Name:
Title:
AEROCON, INC.
By:
Name:
Title:
PESCOR, INC.
By:
Name:
Title:
NY12534:136764.9
BERRY TRI-PLAS CORPORATION
By:
Name:
Title:
CARDINAL PACKAGING, INC.
By:
Name:
Title:
LANDIS PLASTICS, INC.
By:
Name:
Title:
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as Administrative Agent and a Lender
By:
Authorized Signatory
JPMORGAN CHASE BANK,
as Syndication Agent and a Lender
By:
Authorized Signatory
FLEET NATIONAL BANK,
as Collateral Agent, Issuing Bank and Swing Line Lender and a Lender
By:
Authorized Signatory
THE ROYAL BANK OF SCOTLAND,
as a Co-Documentation Agent and a Lender
By:
Authorized Signatory
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Co-Documentation Agent and a Lender
By:
Authorized Signatory
WEBSTER BANK,
as a Lender
By:
Authorized Signatory
MERRILL LYNCH CAPITAL,
a division of Merrill Lynch Business Financial Services Inc., as a Lender
By:
Authorized Signatory
ORIX FINANCIAL SERVICES,
as a Lender
By:
Authorized Signatory
PAM CAPITAL FUNDING,
as a Lender
By:
Authorized Signatory
CENTURION CDO VII, LTD.,
as a Lender
By:
Authorized Signatory
NY12534:136764.9
APPENDIX A-1
TO CREDIT AND GUARANTY AGREEMENT
TERM LOAN COMMITMENTS
[ ][ ]
Appendix A-1
NY12534:136764.9
APPENDIX A-2
TO CREDIT AND GUARANTY AGREEMENT
[Intentionally Omitted]
Appendix A-2
NY12534:136764.9
APPENDIX A-3
TO CREDIT AND GUARANTY AGREEMENT
REVOLVING COMMITMENTS
Goldman Sachs Credit Partners L.P. $[ ]
JPMorgan Chase Bank $[ ]
Fleet National Bank $[ ]
General Electric Capital Corporation$[ ]
The Royal Bank of Scotland $[ ]
Webster Bank $[ ]
Centurion CDO VII, LTD. $[ ]
Merrill Lynch Capital $[ ]
Orix Financial Services $[ ]
Pam Capital Funding $[ ]
Appendix A-3
NY12534:136764.9
APPENDIX B
TO CREDIT AND GUARANTY AGREEMENT
NOTICE ADDRESSES
BERRY PLASTICS CORPORATION
101 Oakley St.
Evansville, IN 47710
Attention: James M. Kratochvil
Telecopier: (812) 424-0128
BPC HOLDING CORPORATION
101 Oakley St.
Evansville, IN 47710
Attention: James M. Kratochvil
Telecopier: (812) 424-0128
Appendix B-1
NY12534:136764.9
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as a Lead Arranger, Administrative Agent and a Lender
Goldman Sachs Credit Partners L.P.
85 Broad Street
New York, New York 10004
Attention: Stephen King
Telecopier: (212) 357-0932
with a copy to:
Goldman Sachs Credit Partners L.P.
85 Broad Street
New York, New York 10004
Attention: John Makrinos
Telecopier: (212) 357-4597
Appendix B-2
NY12534:136764.9
JPMORGAN CHASE BANK,
as Syndication Agent and a Lender
JP Morgan Chase Bank
270 Park Avenue, 38th Fl.
New York, NY 10017
Attention: Stacey Haimes
Telecopier: (212) 270-7939
FLEET NATIONAL BANK
as Collateral Agent, Issuing Bank, and Swing Line Lender
Fleet Bank
100 Federal St. MA DE 100-11A
Boston, MA 02110
Attention: Shai Patel
Telecopier: (617) 434-4929
Appendix B-3
NY12534:136764.9