EXHIBIT 10.1
EXECUTION VERSION
- --------------------------------------------------------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
among
BE AEROSPACE, INC.,
CERTAIN LENDERS,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
and
UBS SECURITIES LLC and
CREDIT SUISSE SECURITIES (USA) LLC,
as Syndication Agents
Dated as of August 24, 2006
- --------------------------------------------------------------------------------
J.P. MORGAN SECURITIES INC., UBS SECURITIES LLC and CREDIT SUISSE
SECURITIES (USA) LLC, as Joint Lead Arrangers and Joint Bookrunners
Table of Contents
Page
----
SECTION 1. DEFINITIONS........................................................1
1.1 Defined Terms....................................................1
1.2 Other Definitional Provisions...................................29
SECTION 2. AMOUNT AND TERMS OF TRANCHE B TERM LOAN COMMITMENTS...............29
2.1 Tranche B Term Loans............................................29
2.2 Repayment of Tranche B Term Loan................................30
2.3 Proceeds of Tranche B Term Loans................................30
SECTION 3. AMOUNT AND TERMS OF INCREMENTAL TERM LOAN.........................30
3.1 Requests for Additional Loans...................................30
3.2 Ranking and Other Provisions....................................30
3.3 Notices; Lender Elections.......................................31
3.4 Additional Facility Amendment...................................31
3.5 Effective Date and Allocations..................................32
3.6 Conditions to Effectiveness of Increase.........................32
SECTION 4. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS.................33
4.1 Revolving Credit Commitments....................................33
4.2 Proceeds of Revolving Credit Loans..............................34
4.3 Issuance of Letters of Credit...................................34
4.4 Participating Interests.........................................34
4.5 Procedure for Opening Letters of Credit.........................34
4.6 Payments in Respect of Letters of Credit........................35
4.7 Swing Line Commitment...........................................36
4.8 Participations..................................................37
SECTION 5. GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT......37
5.1 Procedure for Borrowing by the Company..........................37
5.2 Repayment of Loans; Evidence of Debt............................38
5.3 Conversion and Continuation Options.............................39
5.4 Changes of Commitment Amounts...................................39
5.5 Optional Prepayments............................................40
5.6 Mandatory Prepayments...........................................40
5.7 Interest Rates and Payment Dates................................42
5.8 Computation of Interest and Fees................................43
5.9 Commitment Fees.................................................43
i
Page
----
5.10 Certain Fees....................................................44
5.11 Letter of Credit Fees...........................................44
5.12 Letter of Credit Reserves.......................................45
5.13 Further Assurances..............................................45
5.14 Obligations Absolute............................................46
5.15 Assignments.....................................................46
5.16 Participations..................................................46
5.17 Inability to Determine Interest Rate for Eurodollar Loans.......47
5.18 Pro Rata Treatment and Payments.................................47
5.19 Illegality......................................................48
5.20 Requirements of Law.............................................49
5.21 Indemnity.......................................................50
5.22 Non-Funding Lenders.............................................51
5.23 Taxes...........................................................51
SECTION 6. REPRESENTATIONS AND WARRANTIES....................................54
6.1 Corporate Existence; Compliance with Law........................54
6.2 Corporate Power; Authorization..................................54
6.3 Enforceable Obligations.........................................54
6.4 No Conflict With Law or Contractual Obligations.................55
6.5 No Material Litigation..........................................55
6.6 Investment Company Act..........................................55
6.7 Federal Reserve Regulations.....................................55
6.8 No Default......................................................55
6.9 Taxes...........................................................56
6.10 Subsidiaries....................................................56
6.11 Ownership of Property; Liens....................................56
6.12 ERISA...........................................................56
6.13 Environmental Matters...........................................56
6.14 Accuracy and Completeness of Financial Statements...............57
6.15 Absence of Undisclosed Liabilities..............................57
6.16 No Material Adverse Change......................................58
6.17 Solvency........................................................58
6.18 Intellectual Property...........................................58
6.19 Creation and Perfection of Security Interests...................58
6.20 Accuracy and Completeness of Disclosure.........................59
SECTION 7. CONDITIONS PRECEDENT..............................................60
7.1 Conditions to Initial Loans and Letters of Credit...............60
7.2 Conditions to All Loans and Letters of Credit...................62
SECTION 8. AFFIRMATIVE COVENANTS.............................................62
8.1 Financial Statements............................................62
8.2 Certificates; Other Information.................................63
ii
Page
----
8.3 Payment of Other Obligations....................................64
8.4 Continuation of Business and Maintenance of Existence and
Material Rights and Privileges..................................65
8.5 Compliance with All Applicable Laws and Regulations and
Material Contractual Obligations................................65
8.6 Maintenance of Property; Insurance..............................65
8.7 Maintenance of Books and Records................................65
8.8 Right of the Lenders to Inspect Property and Books and Records..65
8.9 Notices.........................................................66
8.10 Subsidiary Guarantors; Pledge of Stock of Additional
Subsidiaries....................................................67
8.11 Compliance with Environmental Laws..............................70
8.12 Further Assurances..............................................71
SECTION 9. NEGATIVE COVENANTS................................................71
9.1 Financial Condition Covenants...................................71
9.2 Indebtedness....................................................72
9.3 Limitation on Liens.............................................73
9.4 Limitation on Contingent Obligations............................75
9.5 Prohibition of Fundamental Changes..............................76
9.6 Prohibition on Sale of Assets...................................76
9.7 Limitation on Investments, Loans and Advances...................77
9.8 Capital Expenditures............................................79
9.9 Limitation on Dividends.........................................79
9.10 Transactions with Affiliates....................................80
9.11 Derivative Contracts............................................80
9.12 Other Indebtedness..............................................80
9.13 Fiscal Year.....................................................81
9.14 Amendment of Organizational Documents...........................81
9.15 Limitation on Guarantees........................................81
9.16 Independence of Covenants.......................................81
SECTION 10. EVENTS OF DEFAULT................................................81
SECTION 11. THE SYNDICATION AGENTS, THE DOCUMENTATION AGENTS, THE
ADMINISTRATIVE AGENT; THE ISSUING LENDER.........................84
11.1 Appointment.....................................................84
11.2 Delegation of Duties............................................84
11.3 Exculpatory Provisions..........................................85
11.4 Reliance by Syndication Agents or Administrative Agent..........85
11.5 Notice of Default...............................................85
11.6 Non-Reliance on Syndication Agents, Administrative Agent and
Other Lenders...................................................86
11.7 Indemnification.................................................86
11.8 Syndication Agent and Administrative Agent in its Individual
Capacity........................................................87
11.9 Successor Syndication Agent or Administrative Agent.............87
iii
Page
----
11.10 Issuing Lender as Issuer of Letters of Credit...................87
SECTION 12. MISCELLANEOUS....................................................87
12.1 Amendments and Waivers..........................................87
12.2 Notices.........................................................88
12.3 No Waiver; Cumulative Remedies..................................90
12.4 Survival of Representations and Warranties......................90
12.5 Payment of Expenses.............................................90
12.6 Successors and Assigns; Participations; Purchasing Lenders......91
12.7 Adjustments; Set-off............................................95
12.8 Counterparts....................................................96
12.9 Integration.....................................................96
12.10 GOVERNING LAW; NO THIRD PARTY RIGHTS............................96
12.11 SUBMISSION TO JURISDICTION; WAIVERS.............................96
12.12 Acknowledgements................................................97
12.13 USA Patriot Act.................................................97
12.14 Amendment and Restatement.......................................97
12.15 Reaffirmation of Credit Documents...............................98
iv
SCHEDULES:
Schedule 1A Commitment Amounts
- -----------
Schedule 1B Existing Money Market Funds
- -----------
Schedule 4.3 Existing Letters of Credit
- ------------
Schedule 6.10(a) Domestic Subsidiaries
- ----------------
Schedule 6.10(b) Foreign Subsidiaries
- ----------------
Schedule 6.11 Leasehold Interests
- -------------
Schedule 9.2 Existing Indebtedness
- ------------
Schedule 9.3 Existing Liens
- ------------
Schedule 9.4 Contingent Obligations
- ------------
Schedule 9.6 Permitted Asset Sales
- ------------
Schedule 9.7 Investments, Loans and Advances
- ------------
Schedule 9.10 Transactions with Affiliates
- -------------
EXHIBITS:
Exhibit A Copy of Executed Company Pledge Agreement
Exhibit B-1 Form of Company Closing Certificate (Secretary)
Exhibit B-2 Form of Company Closing Certificate (Officer)
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Mortgage (Owned Property)
Exhibit E Copy of Executed Security Agreement
Exhibit F Form of Subordination Terms and Conditions of
Intercompany Note
Exhibit G Form of Acknowledgement Agreement
v
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of August 24, 2006
among BE Aerospace, Inc., a Delaware corporation (the "Company"), the several
lenders from time to time parties hereto (the "Lenders"), JPMORGAN CHASE BANK,
N.A., as administrative agent for the Lenders (in such capacity, the
"Administrative Agent"), and the Syndication Agents (as hereinafter defined).
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company has requested that the Lenders amend and
restate the Credit Agreement dated as of July 26, 2006 (as the same may have
been otherwise amended, modified and/or supplemented prior to the date hereof,
the "Original Credit Agreement") among the Company, the Lenders, the
Administrative Agent, and the Syndication Agents to, among other things, provide
a new $300,000,000 term loan to the Company to repay amounts borrowed under the
Original Credit Agreement and provide financing for working capital and other
general purposes; and
WHEREAS, the Lenders are willing to amend and restate the Original
Credit Agreement and to make the new term loan available on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the Company, the Lenders, the Administrative Agent,
and the Syndication Agents hereby agree that as of the Amendment Effective Date
(as hereinafter defined), the Original Credit Agreement shall be amended and
restated to read in full as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms defined in
the preamble or recitals hereto shall have the meanings set forth therein, and
the following terms shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greater of (a) the
Prime Rate in effect on such day, and (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. For purposes hereof: "Prime
Rate" shall mean the rate of interest per annum publicly announced from
time to time by JPMCB as its prime rate in effect at its principal
office in New York City (the Prime Rate not being intended to be the
lowest rate of interest charged by JPMCB in connection with extensions
of credit to debtors); and "Federal Funds Effective Rate" shall mean,
for any day, the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized
standing selected by it. If for any reason the Administrative Agent
shall have determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Federal Funds
Effective Rate, for any reason, including the inability or failure of
the Administrative Agent to obtain sufficient quotations in accordance
with the terms hereof, the ABR shall be
2
determined without regard to clause (b) of the first sentence of this
definition, as appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the ABR due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective as of
the opening of business on the effective day of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"ABR Loans": Loans whose interest rate is based on the ABR.
"Acknowledgement Agreement": the Acknowledgement and Agreement,
dated as of August 24, 2006, as executed by the Company, substantially
in the form attached hereto as Exhibit G.
"Additional Collateral Documents": as defined in Section 8.10.
"Additional Commitments": as defined in Section 3.1.
"Additional Commitments Effective Date": as defined in Section
3.5.
"Additional Facility Amendment": as defined in Section 3.4.
"Additional Facility Closing Date": as defined in Section 3.6
"Additional Lender": as defined in Section 3.3.
"Additional Term Commitment": as defined in Section 3.1.
"Additional Term Loan Commitment Percentage": as to any Lender,
the percentage which such Lender's Additional Term Loans constitute of
the aggregate then outstanding principal amount of Additional Term
Loans.
"Additional Term Loan Tranche": as defined in Section 3.1.
"Additional Term Loans": as defined in Section 3.1.
"Administrative Agency Fee Letter" the letter, dated August 23,
2006, between the Company and the Administrative Agent, setting forth
the administrative agency fee for this Agreement.
"Administrative Agent": as defined in the preamble hereto.
"Affiliate": of any Person (a) any Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with such Person, or (b) any
Person who is a director or officer of (i) such Person, (ii) any
Subsidiary of such Person or (iii) any Person described in clause (a)
above. For purposes of this definition, "control" of a Person shall
mean the power, direct or indirect, either to (i) vote 10% or more of
the securities having ordinary voting power for the election of
directors of such Person, or (ii) direct or cause the direction of the
management and policies of such Person whether by contract or
otherwise.
3
"Agents": collective reference to the Syndication Agents, the
Administrative Agent and the Collateral Agent.
"Aggregate Revolving Credit Extensions of Credit": at any
particular time, the sum of (a) the aggregate then outstanding
principal amount of the Revolving Credit Loans, (b) the aggregate
amount then available to be drawn under all outstanding Letters of
Credit and (c) the aggregate amount of Revolving L/C Obligations.
"Agreement": the Original Credit Agreement, as amended and
restated pursuant to this Amended and Restated Credit Agreement, and as
the same may be further amended, supplemented or otherwise modified
from time to time.
"Amendment Effective Date": the date on which this Agreement
becomes effective in accordance with Section 7.1, which shall be the
date upon which the last of the conditions set forth in Section 7.1
have been satisfied or waived by the Lenders.
"Applicable Level": as of any day, Level 1, Level 2, Level 3, or
Level 4 below, whichever is applicable on such day, with each new Level
to take effect on the day following the delivery to the Administrative
Agent by the Company of the financial statements referred to in
subsection 8.1(a) or (b), as the case may be, and the related
certificate of a Responsible Officer on behalf of the Company referred
to in subsection 8.2(b), indicating the ratio of Consolidated Total
Indebtedness as of the end of the period covered by such financial
statements to Consolidated EBITDA for the period covered by such
financial statements:
Ratio of Consolidated Total Indebtedness to
Consolidated EBITDA
-------------------------------------------
Level 1 Greater than or equal to 4.5 to 1.0
Level 2 Greater than or equal to 3.5 to 1.0 but less than
4.5 to 1.0
Level 3 Greater than or equal to 2.5 to 1.0 but less than
3.5 to 1.0
Level 4 Less than 2.5 to 1.0
provided, however, that, in the event that the financial statements
required to be delivered pursuant to subsection 8.1(a) or 8.1(b) and
the related certificate of a Responsible Officer on behalf of the
Company referred to in subsection 8.2(b) are not delivered when due,
then during the period from the date upon which such financial
statements and certificate were required to be delivered, until the
date upon which they actually are delivered, the Applicable Level shall
be Level 1; provided further that, in the event the financial
statements required to be delivered pursuant to subsection 8.1(a) or
8.1(b) and the related certificates of a Responsible Officer on behalf
of the Company referred to in subsection 8.2(b) are proven to have been
incorrect, then the Applicable Level for the relevant period shall be
4
adjusted retroactively to reflect the level which would have applied
for such period based on the corrected ratio of Consolidated Total
Indebtedness as of the end of the period covered by such financial
statement to Consolidated EBITDA for the period covered by such
financial statements, and any additional interest owing as a result of
such readjustment shall be payable on demand; and provided further that
at all times during which a Default or an Event of Default shall have
occurred and be continuing, the Applicable Level shall be Level 1.
"Applicable Margin": (a) for each Revolving Credit Loan and Swing
Line Loan for each day (i) from the Amendment Effective Date until the
date on which the Applicable Level is determined for the fiscal quarter
ending December 31, 2006, 0.75% per annum in the case of ABR Loans
(including all Swing Line Loans) and 1.75% per annum in the case of
Eurodollar Loans, and (ii) thereafter, the rate per annum for the
relevant Type of such Loan set forth below opposite the Applicable
Level in effect on such day:
ABR Loan Eurodollar Loan
-------- ---------------
Level 1 1.00% 2.00%
Level 2 0.75% 1.75%
Level 3 0.50% 1.50%
Level 4 0.25% 1.25%
and (b) for the Tranche B Term Loan for each day, 0.75% per annum in
the case of ABR Loans and 1.75% per annum in the case of Eurodollar
Loans.
The Applicable Margin for each Additional Term Loan shall be determined
in accordance with Section 3 of this Agreement; provided that the
Applicable Margin for Revolving Credit Loans and Tranche B Term Loans
may be adjusted as a result thereof according to Section 3 of this
Agreement.
"Asset Sale": any sale, sale-leaseback, assignment, conveyance,
transfer or other disposition by the Company or any Subsidiary thereof
of any of its property or assets, including the stock of any Subsidiary
of the Company (except sales, sale-leasebacks, assignments,
conveyances, transfers and other dispositions permitted by clauses (a),
(b), (c), (d) and (e) of subsection 9.6).
"Assignee": as defined in subsection 12.6(c).
"Assignment and Acceptance": an Assignment and Acceptance
substantially in the form of Exhibit C hereto.
"ATS": shall mean Advanced Thermal Sciences Corporation Inc., a
Delaware corporation.
"Available Revolving Credit Commitment": as to any Lender, at a
particular time, an amount equal to the excess, if any, of (a) the
amount of such Lender's Revolving
5
Credit Commitment at such time less (b) the sum of (i) the aggregate
unpaid principal amount at such time of all Revolving Credit Loans made
by such Lender pursuant to subsection 4.1, (ii) such Lender's L/C
Participating Interest in the aggregate amount available to be drawn at
such time under all outstanding Letters of Credit, (iii) such Lender's
Revolving Credit Commitment Percentage of the aggregate outstanding
amount of Revolving L/C Obligations and (iv) such Lender's Revolving
Credit Commitment Percentage of the aggregate unpaid principal amount
at such time of all Swing Line Loans, provided that for purposes of
calculating Available Revolving Credit Commitments pursuant to
subsection 5.9 the amount referred to in this clause (iv) shall be
zero; collectively, as to all the Lenders, the "Available Revolving
Credit Commitments".
"Benefitted Lender": as defined in subsection 12.7 hereof.
"Board": the Board of Governors of the Federal Reserve System of
the United States (or any successor).
"Borrowing Date": any Business Day specified in a notice pursuant
to (a) subsection 4.7 or 5.1 as a date on which the Company requests
JPMCB to make Swing Line Loans or the Lenders to make Revolving Credit
Loans, Tranche B Term Loans or Additional Term Loans hereunder or (b)
subsection 4.5 as a date on which the Company requests the Issuing
Lender to issue a Letter of Credit hereunder.
"Business Day": when such term is used in connection with (a) a
Eurodollar Loan, any day (other than a Saturday or a Sunday) on which
(i) the London interbank market is open for general banking business
and (ii) banks in New York City are open for general banking business
and (b) an ABR Loan, any day (other than a Saturday or Sunday) on which
banks in New York City are open for general banking business.
"Capital Expenditures": for any period, all amounts (other than
those arising from the acquisition or lease of businesses and assets
which are permitted by subsection 9.7) which are set forth on the
Company's consolidated statement of cash flows for such period as
"purchases of property and equipment" in accordance with GAAP.
"Capital Lease": of any Person, any lease of (or other arrangement
conveying the right to use) property (whether real, personal or mixed)
by such Person as lessee which would, in accordance with GAAP, be
required to be accounted for as a capital lease on the balance sheet of
such Person.
"Cash Collateralize" to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Issuing Lender and the
Lenders, as collateral for the Revolving L/C Obligations, cash or
deposit account balances pursuant to documentation in form and
substance satisfactory to the Administrative Agent and the Issuing
Lender.
"Cash Equivalents": (i) securities issued or directly and fully
guaranteed or insured by the United States Government or any agency or
instrumentality thereof having maturities of not more than one year
from the date of acquisition, (ii) certificates of deposit and
Eurodollar time deposits with maturities of one year or less from the
date of
6
acquisition, bankers' acceptances with maturities not exceeding one
year and overnight bank deposits, in each case, with any Lender or with
any domestic commercial bank having capital and surplus in excess of
$500,000,000, (iii) repurchase obligations with a term of not more than
30 days for underlying securities of the types described in clauses (i)
and (ii) entered into with any financial institution meeting the
qualifications specified in clause (ii) above, (iv) commercial paper
issued by any Lender, the parent corporation of any Lender or any
Subsidiary of such Lender's parent corporation, and commercial paper
rated at least A-2 or the equivalent thereof by Standard & Poor's
Rating Group or at least P-2 or the equivalent thereof by Moody's
Investors Service, Inc. and in each case maturing within one year after
the date of acquisition thereof, (v) money market funds that (x) comply
with the criteria set forth in Securities and Exchange Commission Rule
2a-7 under the Investment Company Act of 1940, (y) are rated AA by S&P
and Aa by Moody's and (z) have portfolio assets of at least
$5,000,000,000; (vi) money market funds existing on the Amendment
Effective Date that are listed on Schedule 1B; and (vii) in the case of
Foreign Subsidiaries, investments that are substantially equivalent to
the foregoing investments described in clauses (i) through (v) above
that are available in the currency of the jurisdiction in which such
Foreign Subsidiary is organized.
"Cash on Hand" means, with respect to any Person on any day, the
sum of the amount of cash and Cash Equivalents of such Person and its
consolidated Subsidiaries, as set forth on the balance sheet of such
Person and its consolidated Subsidiaries, as of such day (it being
understood that such amount shall exclude in any event any cash and
Cash Equivalents identified on such balance sheet as "restricted"
(other than cash or Cash Equivalents which are subject to a perfected
security interest under the Collateral Documents) or otherwise subject
to a security interest in favor of any other Person (other than
security interests under the Collateral Documents and non-consensual
Liens permitted under Section 9.3)).
"Casualty": any casualty, loss, damage, destruction or other
similar loss with respect to real or personal property or improvements.
"Change in Law": with respect to any Lender, the adoption of any
law, rule, regulation, policy, guideline or directive (whether or not
having the force of law) or any change therein or in the interpretation
or application thereof by any Governmental Authority, including,
without limitation, the issuance of any final rule, regulation or
guideline by any regulatory agency having jurisdiction over such Lender
or, in the case of subsection 5.12(b) or 5.20(b), any corporation
controlling such Lender, in each case, after the date such Lender
becomes a party to this Agreement.
"Change of Control": means the occurrence of any of the following
events:
(a) any "person" or "group" (as such terms are used in
Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder (the
"Exchange Act")) has become the "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Exchange Act, except that a person or group
shall be deemed to have "beneficial ownership" of all securities that
any such person or group has the right to acquire, whether such right
is exercisable immediately or only after
7
the passage of time (such right, an "option right")), directly or
indirectly, by way of merger, consolidation or otherwise, of 35% or
more (on a fully-diluted basis after giving effect to the conversion
and exercise of all outstanding rights, warrants, options, convertible
securities, exchangeable securities, indebtedness or other rights, in
each case exercisable for or convertible or exchangeable into, directly
or indirectly, Equity Interests of the Company or securities
exercisable for or convertible or exchangeable into Equity Interests of
the Company, whether at the time of issuance or upon the passage of
time or the occurrence of some future event (whether or not such
securities are then currently convertible or exercisable and talking
into account all such securities that such "person" or "group" has the
right to acquire pursuant to any option right)) of the Equity Interests
of the Company having ordinary power to vote in the election of members
of the board of directors of the Company (irrespective of whether, at
the time, Equity Interests of any other class or classes of the Company
shall have or might have voting power by reason of the happening of any
contingency);
(b) during any period of 12 consecutive months, a majority of
the members of the board of directors or other equivalent governing
body of the Company cease to be composed of individuals (A) who were
members of that board or equivalent governing body on the first day of
such period, (B) whose election or nomination to that board or
equivalent governing body was approved by individuals referred to in
clause (A) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing
body or (C) whose election or nomination to that board or other
equivalent governing body was approved by individuals referred to in
clauses (A) and (B) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing
body (excluding, in the case of both clause (B) and clause (C), any
individual whose initial nomination for, or assumption of office as, a
member of that board or equivalent governing body occurs as a result of
an actual or threatened solicitation of proxies or consents for the
election or removal of one or more directors by any person or group
other than a solicitation for the election of one or more directors by
or on behalf of the board of directors); or
(c) if any of the Existing Senior Notes and/or Existing
Senior Subordinated Notes are then outstanding, a "change of control"
or comparable term in any document pertaining to the Existing Senior
Notes and/or Existing Senior Subordinated Notes, as applicable, occurs.
"Closing Date": means July 26, 2006.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all of the "Collateral" referred to in the
Collateral Documents and all of the other property and assets that are
or are required under the terms hereof or of the Collateral Documents
to be subject to Liens in favor of the Collateral Agent for the benefit
of the Secured Parties.
"Collateral Agent": JPMCB, in its capacity as collateral agent for
the Secured Parties, and its successor or successors in such capacity.
8
"Collateral Documents": collectively, the Security Agreement, the
Company Pledge Agreement, each Depositary Bank Agreement, any
Additional Collateral Documents, any additional pledges, security
agreements, patent, trademark or copyright filings or mortgages that
create or purport to create a Lien in favor of the Collateral Agent for
the benefit of the Secured Parties and any instruments of assignment,
control agreements, lockbox letters or other instruments or agreements
executed pursuant to the foregoing.
"Commitment Percentage": with respect to any Lender, any of the
(i) Tranche B Term Loan Commitment Percentage, (ii) Revolving Credit
Commitment Percentage, and (iii) Additional Term Loan Commitment
Percentage, of such Lender.
"Commitments": the collective reference to the Tranche B Term Loan
Commitments, the Revolving Credit Commitments, the Swing Line
Commitment, and any Additional Commitments, if any; individually, a
"Commitment".
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within the
meaning of Section 4001 of ERISA or is part of a group which includes
the Company and which is treated as a single employer under Section 414
of the Code.
"Company": as defined in the preamble.
"Company Pledge Agreement": the pledge agreement, dated as of the
Closing Date, made by the Company in favor of the Administrative Agent,
for the ratable benefit of the Secured Parties, a copy of which is
attached hereto as Exhibit A, as the same may be amended, supplemented
or otherwise modified in accordance with its terms from time to time
(it being understood and agreed that, notwithstanding anything that may
be to the contrary herein, the Company Pledge Agreement shall not
require the Company to pledge (w) any of the outstanding capital stock
of, or other equity interests in, any Subsidiary of the Company which
is owned by another Subsidiary of the Company, (x) more than 65% of the
outstanding capital stock of, or other equity interests in, any Foreign
Subsidiary owned directly by the Company, unless, in the case of this
clause (x), the granting of such security will not result in adverse
tax consequences to the Company, (y) any of the outstanding capital
stock of, or other equity interests in, ATS or (z) any of the
outstanding capital stock of, or other equity interests, in any
Subsidiary where such pledge would (i) be prohibited by applicable law,
(ii) result in material adverse tax consequences to the Company, (iii)
in the case of any non-wholly owned Subsidiary or joint venture
existing on the Amendment Effective Date, result in a breach of a joint
venture agreement, operating agreement or other similar document or
agreement in the form existing on the Amendment Effective Date, (iv) in
the case of any non-wholly owned Subsidiary or joint venture created or
acquired after the Amendment Effective Date, result in a breach of a
joint venture agreement, operating agreement or other similar document
or agreement, provided that the Company shall use its commercially
reasonable efforts to obtain all consents or take such other actions as
may be necessary to enable the pledge of such capital stock or other
equity interests, or (v) cause the Company to incur costs associated
with such pledge that are excessive in comparison to the benefits
9
afforded to the Lenders, as reasonably determined by the Administrative
Agent), and provided further that to the extent the Company does not
ultimately acquire 100% of the outstanding capital stock or other
equity interests of any acquired or newly formed Subsidiary in any
Permitted Acquisition, notwithstanding clause (z)(iv) above but except
as provided in clauses (x) or (z)(i),(ii) and (v) above, the Collateral
Agent shall receive a pledge of all outstanding capital stock or other
equity interests of such entity held by the Company.
"Condemnation": any taking by a Governmental Authority of property
or assets, or any part thereof or interest therein, for public or
quasi-public use under the power of eminent domain, by reason of any
public improvement or condemnation or in any other manner.
"Condemnation Award": all proceeds of any Condemnation or transfer
in lieu thereof.
"Conduit Lender": any special purpose corporation organized and
administered by any Lender for the purpose of making Loans otherwise
required to be made by such Lender and designated by such Lender in a
written instrument, subject to the consent of the Administrative Agent
and the Company (which consent shall not be unreasonably withheld,
delayed or conditioned); provided, that the designation by any Lender
of a Conduit Lender shall not relieve the designating Lender of any of
its obligations to fund a Loan under this Agreement if, for any reason,
its Conduit Lender fails to fund any such Loan, and the designating
Lender (and not the Conduit Lender) shall have the sole right and
responsibility to deliver all consents and waivers required or
requested under this Agreement with respect to its Conduit Lender, and
provided, further, that no Conduit Lender shall (a) be entitled to
receive any greater amount pursuant to subsection 5.12, 5.19, 5.20 or
5.21 than the designating Lender would have been entitled to receive in
respect of the extensions of credit made by such Conduit Lender or (b)
be deemed to have any Commitment.
"Consolidated Cash Interest Expense": for any four-quarter period
of the Company and its Subsidiaries, the amount of Consolidated
Interest Expense paid or required to be paid in cash during such
four-quarter period.
"Consolidated Current Assets": at any particular date, all amounts
which would, in conformity with GAAP, be reflected under current assets
on a consolidated balance sheet of the Company and its Subsidiaries as
at such date excluding cash and Cash Equivalents.
"Consolidated Current Liabilities": at any particular date, all
amounts which would, in conformity with GAAP, be reflected under
current liabilities on a consolidated balance sheet of the Company and
its Subsidiaries as at such date excluding the current portion of any
Indebtedness (including the Loans).
"Consolidated EBITDA": for any period for the Company and its
consolidated Subsidiaries, the sum of:
10
(i) Consolidated Net Income for such period (excluding therefrom
any unusual or extraordinary items of gain or loss); plus
(ii) without duplication, those amounts which, in the
determination of Consolidated Net Income for such period, have been
deducted for:
(A) Consolidated Interest Expense;
(B) provisions for Federal, state, local and foreign
income, value added and similar taxes;
(C) depreciation, amortization (including, without
limitation, amortization of goodwill and other
intangible assets), impairment of goodwill and
other non-cash charges or expenses (excluding any
such non-cash charge or expense to the extent that
it represents amortization of a prepaid cash
expense that was paid in a prior period);
(D) non-cash compensation expense, or other non-cash
expenses or charges, arising from the granting of
stock options, the granting of stock appreciation
rights and similar arrangements (including any
repricing, amendment, modification, substitution or
change of any such stock option, stock appreciation
rights or similar arrangements);
(E) any financial advisory fees, underwriting fees,
accounting fees, legal fees and other similar
advisory and consulting fees and related
out-of-pocket expenses of the Company and its
Subsidiaries incurred as a result of the Tender
Offer, the Refinancing, the Original Credit
Agreement, and this Agreement and deducted from net
income during the period ending September 30, 2006;
(F) any financial advisory fees, underwriting fees,
accounting fees, legal fees and other similar
advisory and consulting fees and related
out-of-pocket expenses of the Company and its
Subsidiaries incurred as a result of any issuance
or incurrence of Indebtedness permitted pursuant to
this Agreement;
(G) any (x) financial advisory fees, accounting fees,
legal fees and other similar advisory and
consulting fees and related out-of-pocket expenses,
and (y) all cash and non-cash restructuring and
integration charges, costs, and expenses, in each
case incurred by the Company and its Subsidiaries
as a result of any Permitted Acquisition and
deducted from net income during the fiscal quarter
during which such Permitted Acquisition is
completed, and in the case of items describe in
clause (y) above, which are factually supportable,
identifiable and documented and which are not
objected to by the Administrative Agent; minus
11
(iii) any amount which, in the determination of Consolidated Net
Income for such period, has been added for any non-cash income or
non-cash gains, all as determined in accordance with GAAP; minus
(iv) the aggregate amount of cash payments made during such period
in respect of any non-cash accrual, reserve or other non-cash charge or
expense accounted for in a prior period which were added to
Consolidated Net Income to determine Consolidated EBITDA for such prior
period and which do not otherwise reduce Consolidated Net Income for
the current period;
For purposes of calculating Consolidated EBITDA for any period of
four consecutive fiscal quarters (each, a "Measurement Period")
pursuant to any determination of the Total Leverage Ratio, the Senior
Secured Leverage Ratio and the Interest Coverage Ratio, if during such
period (or in the case of pro-forma calculations, during the period
from the last day of such period to and including the date as of which
such calculation is made) the Company or one or more of its
Subsidiaries shall have made an Asset Disposition or a Permitted
Acquisition, Consolidated EBITDA for such period shall be calculated
after giving effect thereto on a pro-forma basis, giving effect to
identifiable cost savings documented to the reasonable satisfaction of
the Administrative Agent.
"Consolidated Interest Expense": for any period the sum of (i) the
amount of interest expense, both expensed and capitalized (excluding
amortization and write offs of debt discount and debt issuance costs
and any other non-cash interest expense or accretions of discounts),
net of interest income, of the Company and its Subsidiaries, determined
on a consolidated basis in accordance with GAAP, for such period and
(ii) dividends paid in cash during such period on preferred stock
issued by the Company or any of its Subsidiaries; provided that, for
purposes of calculating Consolidated Interest Expense for any period
for determining the Total Leverage Ratio, the Senior Secured Leverage
Ratio and the Interest Coverage Ratio, if during such period (or in the
case of pro-forma calculations, during the period from the last day of
such period to and including the date as of which such calculation is
made) the Company or one or more of its Subsidiaries shall have made an
Asset Disposition, made a Permitted Acquisition or incurred or
discharged any Material Indebtedness, then Consolidated Interest
Expense for such period shall be calculated after giving effect thereto
on a pro-forma basis, giving effect to identifiable cost savings
documented to the reasonable satisfaction of the Administrative Agent.
"Consolidated Net Income": for any period, the net income (or net
loss) after taxes of the Company and its consolidated Subsidiaries for
such period, determined on a consolidated basis in accordance with
GAAP; provided that there shall be excluded from the calculation of
Consolidated Net Income for such period (i) the income (or loss) of any
Person in which any other Person (other than the Company or any of its
wholly-owned consolidated Subsidiaries) has an ownership interest,
except to the extent that any such income is actually received in cash
by the Company or such wholly-owned consolidated Subsidiary in the form
of dividends or other equity distributions during such period, (ii) the
income (or loss) of any Person accrued prior to the date it becomes a
consolidated Subsidiary of the Company or is merged with or into or
consolidated with the Company
12
or any of its consolidated Subsidiaries or that Person's assets are
acquired by the Company or any of its consolidated Subsidiaries and
(iii) the income of any Subsidiary of the Company 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.
"Consolidated Total Indebtedness": as of any date of
determination, all Indebtedness of the Company and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP, but
excluding any obligations in respect of hedging arrangements.
"Consolidated Total Secured Indebtedness": as of any date of
determination, the aggregate outstanding principal amount of the Loans
plus the aggregate outstanding principal amount of all other
Consolidated Total Indebtedness of the Company and its consolidated
Subsidiaries which is secured by any Lien on any property or assets of
the Company on one or more of its consolidated Subsidiaries.
"Consolidated Working Capital": at any particular date,
Consolidated Current Assets less Consolidated Current Liabilities.
"Contingent Obligation": as to any Person, any obligation of such
Person guaranteeing or in effect guaranteeing any Indebtedness,
("primary obligations") of any other Person (the "primary obligor") in
any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent
(a) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (b) to advance or
supply funds (i) for the purchase or payment of any such primary
obligation or (ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of
the primary obligor, (c) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of
such primary obligation or (d) otherwise to assure or hold harmless the
owner of any such primary obligation against loss in respect thereof;
provided, however, that the term Contingent Obligation shall not
include (i) endorsements of instruments for deposit or collection in
the ordinary course of business and (ii) any obligation resulting from
the existence of deferred revenue, including customer deposits. The
amount of any Contingent Obligation shall be deemed to be an amount
equal to the stated or determinable amount (based on the maximum
reasonably anticipated net liability in respect thereof as determined
by the Company in good faith) of the primary obligation or portion
thereof in respect of which such Contingent Obligation is made or, if
not stated or determinable, the maximum reasonably anticipated net
liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by the Company in good faith.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of
the property owned by it is bound.
13
"Credit Documents": the collective reference to this Agreement,
the Notes, the Fee Letter, the Administrative Agency Fee Letter, the
Collateral Documents, any Additional Facility Amendment, the
Acknowledgement Agreement, and any guarantee executed and delivered
pursuant to the terms of subsection 9.15.
"Credit Parties": the collective reference to the Company and each
Subsidiary which is a party, or which at any time becomes a party, to a
Credit Document.
"Default": any of the events specified in Section 10, whether or
not any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"Depositary Bank Agreement": an agreement between a Credit Party
and any bank or other depositary institution, substantially in the form
of Exhibit C to the Security Agreement or otherwise in form and
substance reasonably satisfactory to the Collateral Agent, as the same
may be amended, modified, or supplemented from time to time.
"Dividend Limit": as defined in subsection 9.9(b).
"Dollars" and "$": dollars in lawful currency of the United States
of America.
"Domestic Subsidiary": any Subsidiary of the Company other than a
Foreign Subsidiary.
"Eligible Assignee" means any Person that meets the requirements
to be an assignee under Section 12.6 (subject to such consents, if any,
as may be required thereunder).
"Environmental Laws": any and all applicable Federal, state, local
or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees or legally enforceable requirements of any Governmental
Authority regulating, relating to or imposing liability or standards of
conduct concerning human health as they relate to Materials of
Environmental Concern or the protection of the environment, including
without limitation, Materials of Environmental Concern, as now or may
at any time hereafter be in effect.
"Environmental Permit": any permit, approval, license or other
authorization required under any Environmental Law.
"Equity Interests": with respect to any Person, all of the shares
of capital stock of (or other ownership or profit interests in) such
Person, all of the warrants, options or other rights for the purchase
or acquisition from such Person of shares of capital stock of (or other
ownership or profit interests in) such Person, all of the securities
convertible into or exchangeable for shares of capital stock of (or
other ownership or profit interests in) such Person or warrants, rights
or options for the purchase or acquisition from such Person of such
shares (or such other interests), and all of the other ownership or
profit interests in such Person (including partnership, member or trust
interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are
outstanding on any date of determination.
14
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurodollar Lending Office": the office of each Lender which shall
be making or maintaining its Eurodollar Loans.
"Eurodollar Loans": Loans at such time as they are made and/or
being maintained at a rate of interest based upon a Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to
the nearest 1/100th of 1%):
LIBOR
-------------------------------------
1.00 - Eurodollar Reserve Requirement
"Eurodollar Reserve Requirements": for any day, as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal) of reserve requirements current on such day
(including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto), as
now and from time to time hereafter in effect, dealing with reserve
requirements prescribed for Eurodollar funding (currently referred to
as "Eurodollar liabilities" in Regulation D of such Board) maintained
by a member bank of the Federal Reserve System.
"Event of Default": any of the events specified in Section 10,
provided that any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.
"Excess Cash Flow": for any period, Consolidated EBITDA of the
Company for such period (i) plus, without duplication, any net decrease
in the Consolidated Working Capital of the Company and its Subsidiaries
during such period and (ii) minus, without duplication, (a)
Consolidated Cash Interest Expense during such period, (b) the
principal amount of the Revolving Credit Loans paid during such period
to the extent such payment was accompanied by a permanent reduction of
the Revolving Credit Commitments in at least a like amount, and any
scheduled payments or voluntary prepayments of principal on the Term
Loans (provided that such payments shall not include mandatory
prepayments of any Term Loans pursuant to Section 5.6 or otherwise),
(c) taxes measured by income accrued as an expense and paid in cash
during such period, (d) amounts paid in cash during such period in
respect of Capital Expenditures or Permitted Acquisitions to the extent
such Capital Expenditures or Permitted Acquisitions are not financed
with the proceeds of Indebtedness, Net Proceeds of Asset Sales,
Insurance Proceeds, or net proceeds of one or more issuances of Equity
Interests (in each case other than Net Proceeds of Asset Sales or
Insurance Proceeds, if any, to the extent such proceeds were included
in Consolidated Net Income for the applicable period), (e) the amount
of any payments or prepayments made during such period of principal of
any Indebtedness (other than the Loans) permitted under subsection 9.2
made during such period, (f) any net increase in the Consolidated
Working Capital of the Company and its
15
Subsidiaries during such period, excluding for this purpose cash and
short-term investments (including Cash Equivalents) and any borrowings
under this Agreement and any other Indebtedness included in
Consolidated Current Liabilities in determining Consolidated Working
Capital for such period, (g) the aggregate amount of any dividends or
distributions permitted under Section 9.9 hereunder actually paid in
cash by the Company or its Subsidiaries during such period, and (h) the
amount of cash payments made during such period by the Company and its
Subsidiaries in connection with (without duplication) clauses (ii)(E),
(F), and (G) of the definition of Consolidated EBITDA.
"Excluded Taxes": with respect to the Administrative Agent, any
Lender, any Issuing Lender or any other recipient of any payment to be
made by or on account of any obligation of the Company hereunder, (i)
Taxes (other than Other Taxes) imposed by any jurisdiction (or any
political subdivision thereof) as a result of a present or former
connection between such recipient and the jurisdiction (or political
subdivision thereof) imposing such Taxes, other than such connection
arising solely from such recipient having executed, delivered or
performed its obligations or received a payment under, or enforced, any
Credit Documents, (ii) any branch profits Taxes imposed by the United
States or any similar Tax imposed by any other jurisdiction in which
such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its Lending Office is located
and (iii) in the case of a Foreign Lender (other than an assignee
pursuant to a request by the Company under this Agreement), any
withholding tax that is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party hereto (or, as
applicable, designates a new Lending Office or designates a Conduit
Lender) or is attributable to such Foreign Lender's failure to comply
with Section 5.23(e) or such Foreign Lender's inability to provide the
forms, certificates or documentation described in Section 5.23(e) (in
each case, other than as a result of a Change in Law) except to the
extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new Lending Office or designation of a
Conduit Lender (or assignment), to receive additional amounts from the
Company with respect to such withholding tax pursuant to Section 5.23.
"Existing Letters of Credit" means the letters of credit issued
prior to the Amendment Effective Date and described by date of
issuance, letter of credit number, undrawn amount, name of beneficiary
and date of expiry on Schedule 4.3 hereto, and "Existing Letter of
Credit" means any one of them.
"Existing Senior Notes": the $175,000,000 original principal
amount of 8.5% senior notes due 2010 issued by the Company pursuant to
an indenture dated October 7, 2003.
"Existing Senior Subordinated Notes": the $250,000,000 original
principal amount of 8.875% Series A and Series B senior subordinated
notes due 2011 issued by the Company pursuant to an indenture dated
April 17, 2001, as the same may be amended from time to time.
16
"Extensions of Credit": the collective reference to Loans made and
Letters of Credit issued under this Agreement.
"Facility": each of (a) the Tranche B Term Loan Commitments and
the Tranche B Term Loans made thereunder (the "Tranche B Term
Facility"), (b) the Revolving Credit Commitments and the extensions of
credit made thereunder (the "Revolving Credit Facility"), and (c) the
Additional Term Loan Commitments and Additional Term Loans (if any)
made thereunder.
"Fee Letter" the letter, dated August 23, 2006, as among the
Agents, the Initial Lenders, and the Company, setting forth, among
other things, the arrangement fee for this Agreement.
"Foreign Lender": any Lender that is organized under the laws of a
jurisdiction other than that in which the Company is a resident for tax
purposes. For purposes of this definition, the United States, each
state thereof, and the District of Columbia shall be deemed to
constitute a single jurisdiction.
"Foreign Subsidiary": any Subsidiary of the Company which is
organized under the laws of any jurisdiction outside the United States
(within the meaning of Section 7701(a)(9) of the Code).
"GAAP": generally accepted accounting principles in the United
States of America in effect on the date of this Agreement.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Indebtedness": of any Person, at any particular date, (a) all
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than current trade
payables or liabilities and deferred payment for services to employees
or former employees incurred in the ordinary course of business and
payable in accordance with customary practices and other deferred
compensation arrangements), (b) the face amount of all letters of
credit issued for the account of such Person and, without duplication,
all drafts drawn thereunder, (c) all liabilities (other than Lease
Obligations) secured by any Lien on any property owned by such Person,
to the extent attributable to such Person's interest in such property,
even though such Person has not assumed or become liable for the
payment thereof, (d) obligations of such Person under Capital Leases
and (e) all indebtedness of such Person arising under acceptance
facilities; but excluding (x) any obligation resulting from the
existence of deferred revenue, including customer deposits and interest
thereon in the ordinary course of business, (y) deferred rent, and (z)
trade and other accounts and accrued expenses payable in the ordinary
course of business in accordance with customary trade terms and in the
case of both clauses (x) and (z) above, which are not overdue for a
period of more than 120 days or, if overdue for more than 120 days, as
to which a dispute exists and adequate reserves in conformity with GAAP
have been established on the books of such Person.
17
"Indemnified Taxes": Taxes other than Excluded Taxes and Other
Taxes.
"Initial Lenders": UBS Loan Finance LLC, Credit Suisse, Cayman
Islands Branch, and JP Morgan Chase Bank, N.A.
"Insolvency": with respect to a Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of such term as used in
Section 4245 of ERISA.
"Insurance Proceeds": all insurance proceeds (other than proceeds
of business interruption insurance to the extent such proceeds
constitute compensation for lost earnings), damages, awards, claims and
rights of action with respect to any Casualty.
"Interest Coverage Ratio": as defined in subsection 9.1(b).
"Interest Payment Date": (a) as to ABR Loans, the last day of each
March, June, September and December, commencing on the first such day
to occur after any ABR Loans are made or any Eurodollar Loans are
converted to ABR Loans, (b) as to any Eurodollar Loan in respect of
which the Company has selected an Interest Period of one, two or three
months (or any shorter period as agreed by the Lenders), the last day
of such Interest Period, (c) as to any Eurodollar Loan in respect of
which the Company has selected an Interest Period in excess of three
months (as may be agreed by the Lenders), the day which is three months
after the date on which such Eurodollar Loan is made or an ABR Loan is
converted to such a Eurodollar Loan, the first day of any subsequent
three-month period and the last day of such Interest Period, (d) as to
any Term Loan, each day on which principal of such Term Loan is payable
and (e) in the case of Revolving Credit Loans, the Revolving Credit
Termination Date.
"Interest Period": with respect to any Eurodollar Loan:
(a) initially, the period commencing on, as the case may be, the
Borrowing Date or conversion date with respect to such Eurodollar Loan
and ending one, two, three or six months thereafter (or such shorter or
longer periods as the Lenders of the applicable tranche of Loans may
agree) as selected by the Company in its notice of borrowing as
provided in subsection 5.1 or its notice of conversion as provided in
subsection 5.3; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending
one, two, three or six months thereafter (or such shorter or longer
periods as the Lenders of the applicable tranche of Loans may agree) as
selected by the Company by irrevocable notice to the Administrative
Agent no later than 1:00 P.M. New York City time three Business Days
prior to the last day of the then current Interest Period with respect
to such Eurodollar Loan; provided that the foregoing provisions
relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day which
is not a Business Day, that Interest Period shall be extended to
the next succeeding Business Day, unless the result of such
extension would be to carry such Interest
18
Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding Business Day;
(ii) any Interest Period with respect to any Revolving Credit
Loan that would otherwise extend beyond the Revolving Credit
Termination Date, shall end on the Revolving Credit Termination
Date, or if the Revolving Credit Termination Date shall not be a
Business Day, on the next preceding Business Day;
(iii) if the Company shall fail to give notice as provided
above in clause (b), it shall be deemed to have selected a
conversion of a Eurodollar Loan into an ABR Loan (which conversion
shall occur automatically and without need for compliance with the
conditions for conversion set forth in subsection 5.3); and
(iv) any Interest Period that begins on the last 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 such
Interest Period) shall end on the last Business Day of a calendar
month.
"Issuing Lender": JPMCB or any other Lender (or their
respective Affiliates) which agrees to be an Issuing Lender and is
designated by the Company and the Administrative Agent as an Issuing
Lender, as issuer of Letters of Credit.
"Joint Lead Arrangers": J.P. Morgan Securities Inc., UBS
Securities LLC and Credit Suisse Securities (USA) LLC.
"JPMCB": JPMorgan Chase Bank, N.A. and its successors.
"Laws": collectively, all international, foreign, Federal, state
and local statutes, treaties, rules, guidelines, regulations,
ordinances, codes and administrative or judicial precedents or
authorities, including the interpretation or administration thereof by
any Governmental Authority charged with the enforcement, interpretation
or administration thereof, and all applicable administrative orders,
directives, requests, licenses, authorizations and permits of, and
agreements with, any Governmental Authority, in each case whether or
not having the force of Law.
"L/C Application": a letter of credit application in the Issuing
Lender's then customary form for the type of letter of credit
requested.
"L/C Disbursement": a payment made by an Issuing Lender pursuant
to a Letter of Credit.
"L/C Participating Interest": an undivided participating interest
in the face amount of each issued and outstanding Letter of Credit and
the L/C Application relating thereto.
"Lease Obligations": of the Company and its Subsidiaries, as of
the date of any determination thereof, the rental commitments of the
Company and its Subsidiaries
19
determined on a consolidated basis, if any, under Operating Leases (net
of rental commitments from sub-leases thereof).
"Leaseholds": with respect to any Person, all of the right, title
and interest of such Person as lessee or licensee in, to and under
leases or licenses of land, improvements and/or fixtures.
"Lender Affiliate": (a) any Affiliate of any Lender, (b) any
Person that is administered or managed by any Lender and that is
engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary
course of its business and (c) with respect to any Lender which is a
fund that invests in commercial loans and similar extensions of credit,
any other fund that invests in commercial loans and similar extensions
of credit and is managed or advised by the same investment advisor as
such Lender or by an Affiliate of such Lender or investment advisor.
"Lenders": as defined in the preamble hereto.
"Lending Office": with respect to any Lender, (i) with respect to
its ABR Loans, the office of such Lender which will be making or
maintaining its ABR Loans and (ii) with respect to its Eurodollar
Loans, its Eurodollar Lending Office.
"Letter of Credit": a letter of credit issued by an Issuing Lender
pursuant to the terms of subsection 4.3.
"LIBOR": means, for any Interest Period with respect to any
Eurodollar Loan:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the
page of the Reuters screen (or any successor thereto) that
displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first
day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m. (London
time) two (2) Business Days prior to the first day of such
Interest Period, or
(b) if the rate referenced in the preceding clause (a) does
not appear on such page or service or such page or service call
shall not be available, the rate per annum equal to the rate
determined by the Administrative Agent to be the offered rate on
such other page or other service that displays an average British
Bankers Association Interest Settlement Rate for deposits in
Dollars (for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period, determined as of
approximately 11:00 a.m. (London time) two (2) Business Days prior
to the first day of such Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and
(b) are not available, the rate per annum determined by the
Administrative Agent as the rate of interest at which deposits in
Dollars for delivery on the first day of such Interest Period in
Same Day Funds in the approximate amount of the Eurodollar
20
Loan being made, continued or converted by JPMCB and with a term
equivalent to such Interest Period would be offered by JPMCB's
London Branch to major banks in the London interbank eurodollar
market at their request at approximately 4:00 p.m. (London time)
two (2) Business Days prior to the first day of such Interest
Period.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or preferential arrangement of any
kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement, any financing
lease having substantially the same economic effect as any of the
foregoing, and the filing of any financing statement under the Uniform
Commercial Code or comparable law of any jurisdiction in respect of any
of the foregoing, except for the filing of financing statements in
connection with Lease Obligations to the extent that such financing
statements relate to the property subject to such Lease Obligations).
"Loans": the collective reference to the Tranche B Term Loans, the
Revolving Credit Loans, the Swing Line Loans, and the Additional Term
Loans, if any; individually, a "Loan".
"Material Adverse Effect": (a) a material adverse effect on the
business, financial condition, assets, or results of operations of the
Company and its Subsidiaries taken as a whole, (b) a material
impairment of the ability of the Company and the other Credit Parties,
taken as a whole, to perform any of its obligations under any Credit
Document to which it is a party, (c) a material impairment of the
rights and remedies of the Lenders under any Credit Document or (d) a
material adverse effect upon the legality, validity, binding effect or
enforceability against any Credit Party of any Credit Documents to
which it is a party.
"Material Indebtedness": any Indebtedness of the Company or any of
its Subsidiaries in a principal amount equal to or greater than
$20,000,000.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or
any hazardous or toxic substances, materials or wastes, including,
without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation, medical waste and radioactive materials,
in each case, as regulated by any applicable Environmental Laws.
"Measurement Period": as defined in the definition of
"Consolidated EBITDA".
"Mortgage": in the case of owned real property interests, a
mortgage or deed of trust, substantially in the form of, or otherwise
substantially identical in substance to, the provisions of Exhibit D
hereto, among any Credit Party, the Collateral Agent and one or more
trustees, as the same may be amended, modified or supplemented from
time to time.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
21
"Net Proceeds": (a) with respect to an Asset Sale, the aggregate
cash proceeds received by the Company or any Subsidiary of the Company
in respect of such Asset Sale, and any cash payments received in
respect of promissory notes or other non-cash consideration delivered
to the Company or such Subsidiary in respect of an Asset Sale, net of
(without duplication) (i) the reasonable expenses (including legal fees
and brokers' and underwriters' commissions paid to third parties which
are not Affiliates or Subsidiaries of the Company) incurred in
effecting such Asset Sale, (ii) any taxes reasonably attributable to
such Asset Sale and, in case of an Asset Sale in a foreign
jurisdiction, any taxes reasonably attributable to the repatriation of
the proceeds of such Asset Sale reasonably estimated by the Company or
such Subsidiary to be actually payable, (iii) any amounts payable to a
Governmental Authority triggered as a result of any such Asset Sale,
(iv) any Indebtedness or Contractual Obligation of the Company and its
Subsidiaries (other than the Loans and other Obligations) required to
be paid or retained in connection with such Asset Sale and (v) the
aggregate amount of reserves required in the reasonable judgment of the
Company or such Subsidiary to be maintained on the books of the Company
or such Subsidiary in accordance with GAAP in order to pay contingent
liabilities with respect to such Asset Sale; provided that amounts
deducted from aggregate proceeds pursuant to clause (v) and not
actually paid by the Company or any of its Subsidiaries in liquidation
of such contingent liabilities shall be deemed to be Net Proceeds and
shall be applied in accordance with subsection 5.6 at such time as such
contingent liabilities shall cease to be obligations of the Company or
any of its Subsidiaries; and (b) with respect to an issuance of debt or
preferred stock, the cash proceeds received from such issuance, net of
(i) attorneys' fees, investment banking fees, accountants' fees,
brokers and underwriters' commissions, indemnity discounts and
commissions and other customary fees and expenses actually incurred in
connection therewith, and (ii) any taxes reasonably attributable to
such debt or preferred stock issuance and, in case of a debt or
preferred stock issuance in a foreign jurisdiction, any taxes
reasonably attributable to the repatriation of the proceeds of such
debt or preferred stock issuance reasonably estimated by the Company or
such Subsidiary to be actually payable.
"Non-Funding Lenders": any Lender that has failed to fund any
portion of the Loans, participation interests in Letters of Credit or
participation interests in Swing Line Loans required to be funded by it
hereunder within one Business Day of the date required to be funded by
it hereunder.
"Note Threshold": as defined in subsection 9.6(f) hereof.
"Notes": the collective reference to any promissory notes
evidencing Loans.
"Obligations": the unpaid principal of and interest on the Loans
and all other obligations and liabilities of the Company to the Agents
or any Lenders (and in the case of any interest rate, currency or
similar swap and hedging arrangements entered into with any Affiliate
of a Lender, such Affiliates) (including, without limitation, interest
accruing after the maturity of the Loans and interest accruing after
the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, related to the Company,
whether or not a claim for post-filing or post-petition interest is
22
allowed in such proceeding), whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter incurred,
which may arise under, out of, or in connection with, this Agreement,
the Loans, the other Credit Documents, any Letter of Credit or L/C
Application, any agreements between the Company and any Lender relating
to interest rate, currency or similar swap and hedging arrangements
permitted pursuant to subsection 9.11 or any other document made,
delivered or given in connection therewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all fees and
disbursements of counsel to the Agents or any Lender or any such
Affiliate) or otherwise.
"Operating Lease": means, as applied to any Person, a lease
(including leases which may be terminated by the lessee at any time) of
any property (whether real, personal or mixed) by such Person as lessee
which is not a Capital Lease.
"Original Credit Agreement": has the meaning set forth in the
recitals hereof.
"Other Taxes": means all present or future stamp or documentary
Taxes or any other excise or property Taxes or similar Taxes arising
from any payment made hereunder or under any other Credit Document or
from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Credit Document, but excluding
property or similar Taxes other than any such property or similar Taxes
imposed in such circumstances as a result of the Company or other
Credit Party being organized or resident in, maintaining an office in,
conducting business in or maintaining property located in, the taxing
jurisdiction imposing such property or similar Taxes.
"Organization Documents": means: (i) with respect to any
corporation, the certificate or articles of incorporation and the
bylaws (or equivalent or comparable constitutive documents with respect
to any non-United States jurisdiction); (ii) with respect to any
limited liability company, the certificate or articles of formation or
organization and operating agreement; and (iii) with respect to any
partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation
or organization and any agreement, instrument, filing or notice with
respect thereto filed in connection with its formation or organization
with the applicable Governmental Authority in the jurisdiction of its
formation or organization and, if applicable, any certificate or
articles of formation or organization of such entity.
"Participants": as defined in subsection 12.6(b).
"Participating Lender": any Lender (other than the Issuing Lender
with respect to such Letter of Credit) with respect to its L/C
Participating Interest in each Letter of Credit.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Acquisitions": non-hostile acquisitions (by merger,
purchase or otherwise) by the Company or any of its Subsidiaries of all
or substantially all of the
23
assets of, or all of the shares of the capital stock or other Equity
Interests in, a Person or division or line of business of a Person
engaged in the same business as the Company and its Subsidiaries or in
a related business, provided that immediately after giving effect
thereto: (1) except for Permitted Joint Ventures, 100% (less the amount
of such capital stock or other Equity Interests, if any, not exceeding
5% in the aggregate thereof, attributable to director qualifying
shares, shares required by the jurisdiction of organization of such
Person to be held by management or other third party and such
additional shares the current ownership of which, at the time of such
Permitted Acquisition, cannot, after commercially reasonable efforts by
the Company and its Subsidiaries, be identified or acquired) of the
outstanding capital stock or other Equity Interests of any acquired or
newly formed corporation or other entity that acquires such Person,
division or line of business is owned directly by the Company; (2) any
such capital stock or other Equity Interests acquired shall be duly and
validly pledged to the Collateral Agent for the ratable benefit of the
Lenders (other than any capital stock of, or other Equity Interests in,
any Foreign Subsidiary of the Company that is not required to be so
pledged pursuant to the definition of "Company Pledge Agreement" or
pursuant to subsection 8.10); (3) the Company causes any such
corporation or other entity to comply with subsections 8.10 hereof, if
such subsections are applicable; (4) any such corporation or other
entity is not liable for and the Company and its Subsidiaries do not
assume any Indebtedness (except for Indebtedness permitted pursuant to
subsection 9.2); (5) no Default or Event of Default shall have occurred
and be continuing and the Company shall have delivered to the
Administrative Agent an officers' certificate to such effect, together
with all relevant financial information for such corporation or other
entity or acquired assets; (6) at the time of any such acquisition (and
after giving effect to loans, advances and investments in connection
therewith or pursuant thereto) the Company would be in compliance with
the covenants set forth in subsection 9.1 as of the most recently
completed period of four consecutive fiscal quarters ending prior to
such acquisition for which the financial statements and certificates
required by subsections 8.1 and 8.2 have been delivered or for which
comparable financial statements have been filed with the Securities and
Exchange Commission, after giving pro forma effect to such transaction
and to any other event occurring after such period as to which pro
forma recalculation is appropriate (including any other transaction
described in subsections 9.6 and 9.7 occurring after such period) as if
such acquisition had occurred as of the first day of such period. All
pro forma calculations required to be made pursuant to this definition
shall (i) include only those adjustments that are based on reasonably
detailed written assumptions reasonably acceptable to the
Administrative Agent and (ii) be certified to by a Responsible Officer
on behalf of the Company as having been prepared in good faith based
upon reasonable assumptions.
"Permitted Joint Ventures": acquisitions (by merger, purchase,
formation of partnership, joint venture or otherwise) by the Company
not constituting Permitted Acquisitions of interests in any of the
assets of, or shares of the capital stock of or other Equity Interests
in, a Person or division or line of business of a Person engaged in the
same business as the Company or any of its Subsidiaries or in a related
business, provided that immediately after giving effect thereto: (1)
any outstanding capital stock or other Equity Interests of any acquired
or newly formed corporation or other entity owned directly by the
Company is duly and validly pledged to the Collateral Agent for the
24
ratable benefit of the Lenders (other than any capital stock of, or
other equity interests in, any Foreign Subsidiary of the Company that
is not required to be so pledged pursuant to the definition of "Company
Pledge Agreement" or pursuant to subsection 8.10; and (2) no Default or
Event of Default shall have occurred and be continuing, and the Company
shall have delivered to the Administrative Agent an officers'
certificate to such effect, together with all relevant financial
information for such corporation or other entity or acquired assets.
"Permitted Liens": any Liens permitted under Section 9.3.
"Permitted Uses of Proceeds": (i) repayment of amounts borrowed
under the Original Credit Agreement, (ii) payment of the fees and
expenses in connection with this Agreement and the Refinancing, (iii)
repayment of any amounts outstanding under the Existing Senior Notes,
(iv) financing Permitted Acquisitions and Permitted Joint Ventures and
paying related fees and expenses, and (v) financing other working
capital or general corporate purposes of the Company or any of its
Subsidiaries.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, limited liability company, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
"Plan": any pension plan which is covered by Title IV of ERISA and
in respect of which the Company or a Commonly Controlled Entity is an
"employer" as defined in Section 3(5) of ERISA.
"Pledge Agreements": the collective reference to the Company
Pledge Agreement and any other pledge agreement entered into by a
Credit Party and the Administrative Agent (on substantially the same
terms as the Company Pledge Agreement) in accordance with subsection
8.10.
"Pledged Collateral": as defined in the Pledge Agreements.
"Pledged Notes": as defined in the Pledge Agreements.
"Pledged Stock": as defined in the Pledge Agreements.
"Properties": each parcel of real property currently or previously
owned or operated by the Company or any Subsidiary of the Company.
"Real Property": with respect to any Person, all of the right,
title and interest of such Person in and to land, improvements and
fixtures, including Leaseholds.
"Refinancing": means the Company's repurchase of all or a portion
of the Existing Senior Notes through the Tender Offer.
"Refunded Swing Line Loans": as defined in subsection 4.7(b).
"Register": as defined in subsection 12.6(d).
25
"Regulation U": Regulation U of the Board, as from time to time in
effect.
"Reinvestment Funds": with respect to any Insurance Proceeds or
any Condemnation Award, that portion of such funds as shall, according
to a certificate of a Responsible Officer of the Company delivered to
the Administrative Agent within 30 days after the occurrence of the
Casualty or Condemnation giving rise thereto, be reinvested within 364
days after the occurrence of the Casualty or Condemnation giving rise
thereto in the repair, restoration or replacement of the properties
that were the subject of such Casualty or Condemnation; provided that
(i) such certificate shall be accompanied by evidence reasonably
satisfactory to the Administrative Agent that any property subject to
such Casualty or Condemnation has been or will be repaired, restored or
replaced to its condition immediately prior to such Casualty or
Condemnation, (ii) pending such reinvestment, the entire amount of such
proceeds shall be deposited in an account with the Collateral Agent for
the benefit of the Secured Parties, over which the Collateral Agent
shall have sole control and exclusive right of withdrawal, (iii) from
and after the date of delivery of such certificate, the Company or one
or more of its Subsidiaries shall diligently proceed, in a commercially
reasonable manner, to complete the repair, restoration or replacement
of the properties that were the subject of such Casualty or
Condemnation as described in such certificate and (iv) no Event of
Default shall have occurred and be continuing; and provided, further,
that, if any of the foregoing conditions shall cease to be satisfied at
any time, such funds shall no longer be deemed Reinvestment Funds and
such funds shall immediately be applied to prepayment of the Loans in
accordance with Section 5.6.
"Related Document": any agreement, certificate, document or
instrument relating to a Letter of Credit.
"Reorganization": with respect to a Multiemployer Plan, the
condition that such Plan is in reorganization as such term is used in
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c)
of ERISA or the regulations thereunder.
"Required Lenders": at a particular time Lenders that hold more
than 50% of (a) the aggregate then outstanding principal amount of the
Tranche B Term Loans or, prior to the Amendment Effective Date, the
Tranche B Term Loan Commitments, (b) the aggregate then outstanding
principal amount of the Additional Term Loans or, prior to the
Additional Facility Closing Date, the Additional Term Commitments; and
(c) the Revolving Credit Commitments or if the Revolving Credit
Commitments have been cancelled (i) the aggregate then outstanding
principal amount of the Revolving Credit Loans, (ii) the L/C
Participating Interests in the aggregate amount then available to be
drawn under all outstanding Letters of Credit, (iii) the aggregate then
outstanding principal amount of Revolving L/C Obligations and (iv) the
aggregate amount represented by the agreements of the Lenders in
subsections 4.7(b) and (c) with respect to the Swing Line Loans then
outstanding.
26
"Requirement of Law": as to any Person, the Organization Documents
of such Person, and any Law (including, without limitation,
Environmental Laws), in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its
property is subject.
"Responsible Officer": the chief executive officer or the chief
operating officer of the Company or, with respect to financial matters,
the chief financial officer, controller, vice president - finance or
treasurer of the Company.
"Restricted Payments": as defined in subsection 9.9.
"Revolving Credit Commitment": as to any Lender, its obligations
to make Revolving Credit Loans to the Company pursuant to subsection
4.1, and to purchase its L/C Participating Interest in any Letter of
Credit in an aggregate amount not to exceed at any time the amount set
forth opposite such Lender's name in Schedule 1A under the heading
"Revolving Credit Commitment" and in an aggregate amount not to exceed
at any time the amount equal to such Lender's Revolving Credit
Commitment Percentage of the aggregate Revolving Credit Commitments, as
the aggregate Revolving Credit Commitments may be reduced or adjusted
from time to time pursuant to this Agreement; collectively, as to all
the Lenders, the "Revolving Credit Commitments".
"Revolving Credit Commitment Percentage": as to any Lender at any
time, the percentage which such Lender's Revolving Credit Commitment
constitutes of all of the Revolving Credit Commitments (or, if the
Revolving Credit Commitments shall have been terminated, the percentage
of the outstanding Aggregate Revolving Credit Extensions of Credit and
Swing Line Loans constituted by such Lender's Aggregate Revolving
Credit Extensions of Credit and participating interest in Swing Line
Loans).
"Revolving Credit Commitment Period": the period from and
including the Amendment Effective Date to but not including the
Revolving Credit Termination Date.
"Revolving Credit Loan" and "Revolving Credit Loans": as defined
in subsection 4.1(a).
"Revolving Credit Termination Date": the earlier of (i) the date
which is the fifth anniversary of the Amendment Effective Date; (ii)
any other date on which the Revolving Credit Commitments shall
terminate hereunder; and (iii) the date that is six months prior to the
maturity of the Existing Subordinated Notes, the Existing Senior Notes
(if any are still outstanding) or any other Indebtedness of the Company
or any of its Subsidiaries consisting of debt securities issued
pursuant to one or more public offerings or private offerings exempt
from registration under the Securities Act of 1933, as amended, and the
Rules and Regulations promulgated thereunder.
"Revolving L/C Obligations": the obligations of the Company to
reimburse the Issuing Lender for any payments made by an Issuing Lender
under any Letter of Credit that have not been reimbursed by the Company
pursuant to subsection 4.6.
"Same Day Funds": immediately available funds.
27
"Secured Leverage Ratio": as of any date of determination, the
ratio of (i) the difference of (A) Consolidated Total Secured
Indebtedness as of such date minus (B) Cash on Hand, to (ii)
Consolidated EBITDA for the twelve months ending on the last day of the
most recent fiscal quarter for which financial statements required by
Section 8.1(a) or (b), as applicable, have been delivered.
"Secured Parties": collectively, the Lenders and any other Persons
the obligations owing to which are or are purported to be secured by
the Collateral under the terms of the Collateral Documents.
"Security Agreement": the Security Agreement, a copy of which is
attached hereto as Exhibit E, dated as of the Closing Date, as between
the Company and the Collateral Agent, as the same may be amended,
modified or supplemented from time to time.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Solvent" and "Solvency": with respect to any Person on any date
of determination, that on such date (i) the fair value of the property
of such Person is greater than the total amount of liabilities,
including contingent liabilities, of such Person, (ii) the present fair
salable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on
its debts as they become absolute and matured, (iii) such Person does
not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay such debts and
liabilities as they mature and (iv) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute an
unreasonably small capital. The amount of contingent liabilities at any
time shall be computed as the amount that, in the light of all the
facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured
liability.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of capital stock or other Equity Interests
having ordinary voting power (other than capital stock or other equity
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, directly or indirectly, or the management of which is
otherwise controlled, directly or indirectly, or both, by such Person.
"Swing Line Commitment": JPMCB's obligation to make Swing Line
Loans pursuant to subsection 4.7.
"Swing Line Loan" and "Swing Line Loans": as defined in subsection
4.7(a).
"Syndication Agents": collectively, UBS Securities LLC and Credit
Suisse Securities (USA) LLC, in their capacities as Syndication Agents
with respect to the Commitments (each, a "Syndication Agent").
28
"Taxes": all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, or other similar charges imposed
by any Governmental Authority, including any interest, additions to tax
or penalties applicable thereto.
"Tender Offer": collectively, (1) the offer by the Company to
purchase for cash any and all of its Existing Senior Notes pursuant to
a tender offer and (2) the related solicitation of consents from the
holders of the Existing Senior Notes to certain proposed amendments to
the indenture governing the Existing Senior Notes, dated as of October
7, 2003, between the Company and The Bank of New York, as trustee,
pursuant to which the Existing Senior Notes were issued, and to the
execution of a supplemental indenture in connection with certain
amendments proposed with respect thereto, in each case, commenced on
July 10, 2006.
"Term Lenders": the Lenders with Term Loan Commitments and/or
outstanding Term Loans.
"Term Loan Borrowing": a borrowing consisting of simultaneous Term
Loans of the same Type and, in the case of Eurodollar Loans, having the
same Interest Period made by each of the Term Lenders.
"Term Loan Commitment": as to any Lender, the reference to its
Tranche B Term Loan Commitment, and/or Additional Term Loan
Commitments, as applicable.
"Term Loans" means the Tranche B Term Loan and any Additional Term
Loan, as applicable.
"Total Leverage Ratio": as defined in Section 9.1(a).
"Tranche B Term Loan" and "Tranche B Term Loans": as defined in
subsection 2.1.
"Tranche B Term Loan Commitment": as to any Lender, its obligation
to make a Tranche B Term Loan to the Company pursuant to subsection
2.1, in an aggregate amount not to exceed the amount set forth opposite
such Lender's name in Schedule 1A under the heading "Tranche B Term
Loan" and in an aggregate amount not to exceed the amount equal to such
Lender's Tranche B Term Loan Commitment Percentage of the aggregate
Tranche B Term Loan Commitments; collectively, as to all the Lenders,
the "Tranche B Term Loan Commitments".
"Tranche B Term Loan Commitment Percentage": as to any Lender, the
percentage which such Lender's Tranche B Term Loan (or, prior to the
Amendment Effective Date, Tranche B Term Loan Commitment) constitutes
of the aggregate then outstanding principal amount of Tranche B Term
Loans (or Tranche B Term Loan Commitments).
"Tranche B Term Loan Maturity Date": the earlier of (i) the date
which is the sixth anniversary of the Amendment Effective Date and (ii)
the date that is six months prior to the maturity of the Existing
Senior Subordinated Notes or any other Indebtedness
29
of the Company or any of its Subsidiaries consisting of debt securities
issued pursuant to one or more public offerings or private offerings
exempt from registration under the Securities Act of 1933, as amended,
and the Rules and Regulations promulgated thereunder.
"Type": as to any Loan, its nature as an ABR Loan or a Eurodollar
Loan.
"UCC": the Uniform Commercial Code as in effect in the State of
New York; provided that, if perfection or the effect of perfection or
non-perfection or the priority of any security interest in any
Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York, "UCC" means the Uniform
Commercial Code as in effect from time to time in such other
jurisdiction for purposes of the provisions hereof relating to such
perfection, effect of perfection or non-perfection or priority.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1998 Revision), International Chamber of Commerce
Publication No. 500 (or any successor publication), as the same may be
amended from time to time.
"Unmatured Surviving Obligations": at any date, contingent
indemnification or expense reimbursement claims which are then due and
payable or with respect to which no demand has been made.
"Unreimbursed Amount" as defined in Section 4.6(b).
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in, any other Credit Document or any certificate or other document
made or delivered pursuant hereto.
(b) As used herein and in any other Credit Document and any
certificate or other document made or delivered pursuant hereto, accounting
terms relating to the Company and its Subsidiaries not defined in subsection 1.1
and accounting terms partly defined in subsection 1.1 to the extent not defined,
shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF TRANCHE B TERM LOAN COMMITMENTS
2.1 Tranche B Term Loans. Subject to the terms and conditions
hereof, each Lender severally agrees to make a term loan (each, a "Tranche B
Term Loan") in Dollars to the
30
Company on the Amendment Effective Date in an aggregate amount not to exceed the
Tranche B Term Loan Commitment of such Lender. The Term Loan Borrowing shall
consist of Tranche B Term Loans made simultaneously by the Term Lenders in
accordance with their respective Tranche B Term Loan Commitments. The Tranche B
Term Loans may from time to time be (a) Eurodollar Loans or (b) ABR Loans or (c)
a combination thereof, as determined by the Company and notified to the
Administrative Agent in accordance with subsections 5.1, 5.2 and 5.3; provided
that, any Tranche B Term Loan made on the Amendment Effective Date shall be made
as ABR Loans. The Tranche B Term Loans are not revolving in nature and any
amount repaid or prepaid hereunder may not be reborrowed.
2.2 Repayment of Tranche B Term Loan. The Company shall repay the
Tranche B Term Loans in 23 consecutive quarterly installments on the last day of
each fiscal quarter, commencing on December 31, 2006, in equal amounts of 0.25%
of the outstanding principal amount of the Tranche B Term Loans made to the
Company by the Term Lenders pursuant to Section 2.1 above. Any remaining
principal amount of the Tranche B Term Loans will be due and payable on the
Tranche B Term Loan Maturity Date.
2.3 Proceeds of Tranche B Term Loans. The Company shall use the
proceeds of the Tranche B Term Loans to (i) repay amounts outstanding under the
Original Credit Agreement and (ii) finance (A) Permitted Acquisitions and (B)
other general corporate purposes of the Company or any of its Subsidiaries.
SECTION 3. AMOUNT AND TERMS OF INCREMENTAL TERM LOAN
3.1 Requests for Additional Loans. Upon notice to the
Administrative Agent (which shall promptly notify the Lenders), at any time
after the Amendment Effective Date, the Company may request additional Term Loan
Commitments (each an "Additional Term Commitment" or "Additional Commitment" and
all of them, collectively, the "Additional Term Commitments") in an aggregate
principal amount not to exceed $75,000,000.00. Any loans made in respect of any
such Additional Term Loan Commitments (the "Additional Term Loans") may be made,
at the option of the Company, by either (i) increasing the Tranche B Term Loan
Commitments with the same terms (including pricing) as the existing Tranche B
Term Loans, or (ii) creating a new tranche of terms loans (an "Additional Term
Loan Tranche"); provided that any Additional Term Loan Tranche (x) shall have a
final maturity on or after the stated Tranche B Term Loan Maturity Date and (y)
if such Additional Term Loans are not Tranche B Term Loans, such Additional Term
Loans shall have prepayment events not more restrictive than the Tranche B Term
Loans.
3.2 Ranking and Other Provisions. The Additional Term Loans (i)
shall rank pari passu or junior in right of payment and in respect of lien
priority as to the Collateral with the Obligations in respect of the Revolving
Commitments and the outstanding Tranche B Term Loans, (ii) shall not have a
weighted average life that is shorter than the weighted average life of the
outstanding Tranche B Term Loans, (iii) shall not mature earlier than the
Tranche B Term Loan Maturity Date and (iv) except as set forth in this
Agreement, shall be treated substantially the same as (and in any event no more
favorably than) the outstanding Tranche B Term Loans, provided that, without the
consent of the Required Lenders, if the Applicable Rate (which, for such
purposes only, shall be deemed to include all upfront or similar fees or
original issue
31
discount payable to all Lenders providing such Additional Term Loans) relating
to any Additional Term Loan exceeds the Applicable Rate (which, for such
purposes only, shall be deemed to include all upfront or similar fees or
original issue discount payable to all Lenders providing the outstanding Tranche
B Term Loans) relating to the outstanding Tranche B Term Loans immediately prior
to the effectiveness of the applicable Additional Facility Amendment by more
than 0.50%, the Applicable Rate relating to the outstanding Tranche B Term Loans
shall be adjusted to be equal to the Applicable Rate for such Additional Term
Loan (which, for such purposes only, shall be deemed to include all upfront or
similar fees or original issue discount payable to all Lenders providing such
Additional Term Loans) and if the prepayment fee (if any) required to be paid
upon repayment of any Additional Term Loan exceeds the prepayment fee (if any)
required to be paid upon repayment of the outstanding Tranche B Term Loans, the
prepayment fee (if any) required to be paid upon repayment of the outstanding
Tranche B Term Loans shall be adjusted to be equal to the prepayment fee
required to be paid upon repayment of such Additional Term Loan. Unless
otherwise agreed to by the Administrative Agent and the Additional Lenders, the
Company shall repay the Additional Term Loans in consecutive quarterly
installments on the last day of each fiscal quarter, commencing on the last day
of the first fiscal quarter after the Additional Facility Closing Date, in equal
amounts of 0.25% of the outstanding principal amount of the Additional Term
Loans made to the Company by the Additional Term Lenders. Any remaining
principal amount of the Additional Term Loans will be due and payable on the
maturity date of the Additional Term Loans. The proceeds of any Additional Term
Loans will be used only for purposes permitted for Tranche B Term Loans under
Section 2.3.
3.3 Notices; Lender Elections. The notice from the Company
pursuant to this Section shall set forth the requested amount and proposed terms
of the Additional Commitments. Additional Term Loans (or any portion thereof)
may be made by any existing Lender or by any other bank or investing entity (any
such bank or other financial institution, an "Additional Lender"), in each case
on terms permitted in this Section and otherwise on terms reasonably acceptable
to the Administrative Agent, provided that the Administrative Agent shall have
consented (not to be unreasonably withheld) to such Lender's or Additional
Lender's, as the case may be, making such Additional Term Loans if such consent
would be required under Section 12.6 for an assignment of Loans to such Lender
or Additional Lender, as the case may be. No Lender shall be obligated to
provide any Additional Term Loans, unless it so agrees.
3.4 Additional Facility Amendment. Commitments in respect of any
Additional Commitments shall become Commitments under this Agreement pursuant to
an amendment (an "Additional Facility Amendment") to this Agreement and, as
appropriate, the other Credit Documents, executed by the Company, each Lender
agreeing to provide such Commitment, if any, each Additional Lender, if any, and
the Administrative Agent. An Additional Facility Amendment may, without the
consent of any other Lenders, effect such amendments to any Credit Documents as
may be necessary or appropriate, in the opinion of the Administrative Agent, to
effect the provisions of this Section. At the time of the sending of such
notice, the Company (in consultation with the Administrative Agent) shall
specify the time period within which each Lender is requested to respond (which
shall in no event be less than ten Business Days from the date of delivery of
such notice to the Lenders). Each Lender shall notify the Administrative Agent
within such time period whether or not it agrees to provide an Additional
Commitment and, if so, whether by an amount equal to, greater than, or less than
its
32
Commitment Percentage of such requested increase (which shall be calculated on
the basis of the amount of the funded and unfunded exposure under all the Loans
held by each Lender). Any Lender not responding within such time period shall be
deemed to have declined to provide an Additional Commitment. The Administrative
Agent shall notify the Company and each Lender of the Lenders' responses to each
request made hereunder. To achieve the full amount of a requested increase, the
Company may also invite additional Eligible Assignees to become Additional
Lenders pursuant to a joinder agreement in form and substance reasonably
satisfactory to the Administrative Agent and its counsel.
3.5 Effective Date and Allocations. If any Additional Commitments
are added in accordance with this Section 3.5, the Administrative Agent and the
Company shall determine the effective date (the "Additional Commitments
Effective Date") and the final allocation of such addition. The Administrative
Agent shall promptly notify the Company and the Lenders of the final allocation
of such addition and the Additional Commitments Effective Date.
3.6 Conditions to Effectiveness of Increase. The effectiveness of
any Additional Facility Amendment shall, unless otherwise agreed to by the
Administrative Agent, each Lender party thereto, if any, and the Additional
Lenders, if any, be subject to the satisfaction on the date thereof (the
"Additional Facility Closing Date") of each of the following conditions:
(i) the Administrative Agent shall have received on or prior
to the Additional Facility Closing Date each of the following, each
dated the Additional Facility Closing Date unless otherwise indicated
or agreed to by the Administrative Agent and each in form and substance
reasonably satisfactory to the Administrative Agent: (A) the applicable
Additional Facility Amendment; (B) certified copies of resolutions of
the Board of Directors of each Credit Party approving the execution,
delivery and performance of the Additional Facility Amendment; and (C)
a favorable opinion of counsel for the Credit Parties dated the
Additional Facility Closing Date, to the extent requested by the
Administrative Agent, addressed to the Administrative Agent and the
Lenders and in form and substance and from counsel reasonably
satisfactory to the Administrative Agent;
(ii) the conditions precedent set forth in Section 7.2 shall
have been satisfied both before and after giving effect to such
Additional Facility Amendment and the additional Extensions of Credit
provided thereby (it being understood that all references to "the
obligation of any Lender to make a Loan on the occasion of any
Borrowing" shall be deemed to refer to the effectiveness of the
Additional Facility Amendment on the Additional Facility Closing Date,
(ii) such increase shall be made on the terms and conditions provided
for above and (iii) the Company shall be in compliance with Section 9.1
on and as of the Additional Facility Closing Date for the most recently
ended fiscal quarter for which financial statements are required to be
delivered pursuant to Section 8.1(a) or (b) on a pro-forma basis both
before and after giving effect to such Additional Facility Amendment
and the Additional Term Loans provided thereby; and
33
(iii) there shall have been paid to the Administrative Agent,
for the account of the Administrative Agent and the Lenders (including
any Person becoming a Lender as part of such Additional Facility
Amendment on the related Additional Facility Closing Date), as
applicable, all fees and expenses (including reasonable out-of-pocket
fees, charges and disbursements of counsel) invoiced with reasonable
supporting documentation that are due and payable on or before the
Additional Facility Closing Date.
3.7 Effect of Additional Facility Amendment. On the Additional
Commitments Effective Date, each Lender or Eligible Assignee which is providing
an Additional Commitment (i) shall become a "Lender" for all purposes of this
Agreement and the other Loan Documents, (ii) shall have, as applicable, an
Additional Term Commitment which shall become a "Commitment" hereunder and (iii)
in the case of an Additional Term Commitment, shall make an Additional Term Loan
to the Company in a principal amount equal to such Additional Term Commitment,
and such Additional Term Loan shall be a "Term Loan" for all purposes of this
Agreement and the other Credit Documents.
SECTION 4. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS
4.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Lender agrees to extend credit, in an aggregate amount
not to exceed such Lender's Revolving Credit Commitment, to the Company from
time to time on any Borrowing Date during the Revolving Credit Commitment Period
by purchasing an L/C Participating Interest in each Letter of Credit issued by
the Issuing Lender and by making loans to the Company ("Revolving Credit Loans")
from time to time. Revolving Credit Loans shall be denominated in Dollars.
Notwithstanding the foregoing, in no event shall (i) any Revolving Credit Loan
or Swing Line Loan be made, or any Letter of Credit be issued, if, after giving
effect to such making or issuance and the use of proceeds thereof as irrevocably
directed by the Company, the sum of the Aggregate Revolving Credit Extensions of
Credit and the aggregate outstanding principal amount of the Swing Line Loans
would exceed the aggregate Revolving Credit Commitments or if subsection 4.7
would be violated thereby or (ii) any Revolving Credit Loan or Swing Line Loan
be made, or any Letter of Credit be issued, if the amount of such Loan to be
made or any Letter of Credit to be issued would, after giving effect to the use
of proceeds, if any, thereof, exceed the Available Revolving Credit Commitments.
During the Revolving Credit Commitment Period, the Company may use the Revolving
Credit Commitments by borrowing, repaying the Revolving Credit Loans or Swing
Line Loans in whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof, and/or by having the Issuing Lender issue Letters
of Credit, having such Letters of Credit expire undrawn upon or if drawn upon,
reimbursing the relevant Issuing Lender for such drawing, and having the Issuing
Lender issue new Letters of Credit.
(b) Each borrowing of Revolving Credit Loans shall be in an
aggregate principal amount of the lesser of (i) $1,000,000 or a whole multiple
of $1,000,000 in excess thereof, and (ii) the Available Revolving Credit
Commitments, except that any borrowing of a Revolving Credit Loan to be used
solely (x) to pay a like amount of Swing Line Loans may be in
34
the aggregate principal amount of such Swing Line Loans or (y) to pay the like
amount of an LC Disbursement may be in the principal amount of such LC
Disbursement.
4.2 Proceeds of Revolving Credit Loans. The Company shall use the
proceeds of Revolving Credit Loans solely for (a) Permitted Uses of Proceeds,
(b) making payments to the Issuing Lender to reimburse the Issuing Lender for
drawings made under the Letters of Credit, and (c) repaying Swing Line Loans and
Revolving Credit Loans after the Amendment Effective Date.
4.3 Issuance of Letters of Credit. (a) The Company may from time
to time during the Revolving Credit Commitment Period request any Issuing Lender
to issue a Letter of Credit by delivering to the Administrative Agent at its
address specified in subsection 12.2 and the Issuing Lender an L/C Application
completed to the satisfaction of the Issuing Lender, together with the proposed
form of the Letter of Credit (which shall comply with the applicable
requirements of paragraph (b) below) and such other certificates, documents and
other papers and information as the Issuing Lender may reasonably request;
provided that if the Issuing Lender informs the Company that it is for any
reason unable to open such Letter of Credit, the Company may request another
Lender to open such Letter of Credit upon the same terms offered to the initial
Issuing Lender and if such other Lender agrees to issue such Letter of Credit
each reference to the Issuing Lender for purposes of the Credit Documents shall
be deemed to be a reference to such Lender. Letters of Credit shall be
denominated in Dollars. The Existing Letters of Credit shall be deemed to be
Letters of Credit issued under this Agreement for the account of the Company on
the Amendment Effective Date.
(b) Each Letter of Credit issued hereunder shall, among other
things, (i) be in such form requested by the Company as shall be acceptable to
the Issuing Lender in its sole discretion and (ii) have an expiry date occurring
not later than the earlier of (y) 365 days after the date of issuance of such
Letter of Credit and (z) five days prior to the Revolving Credit Termination
Date. Each L/C Application and each Letter of Credit shall be subject to the
Uniform Customs and, to the extent not inconsistent therewith, the laws of the
State of New York.
4.4 Participating Interests. Effective in the case of each Letter
of Credit opened by the Issuing Lender as of the date of the opening thereof,
the Issuing Lender agrees to allot and does allot, to itself and each other
Lender, and each Lender severally and irrevocably agrees to take and does take
in such Letter of Credit and the related L/C Application, an L/C Participating
Interest in a percentage equal to such Lender's Revolving Credit Commitment
Percentage. In consideration and in furtherance of the foregoing, each such
Lender hereby absolutely and unconditionally agrees to pay to the Administrative
Agent in Dollars, for the account of the applicable Issuing Lender, such
Lender's Revolving Credit Commitment Percentage of each LC Disbursement made by
such Issuing Lender, in each case to the extent not reimbursed by the Company on
the date due as provided in subsection 4.6, or of any reimbursement payment
required to be refunded to the Company for any reason.
4.5 Procedure for Opening Letters of Credit. Upon receipt of any
L/C Application from the Company in respect of a Letter of Credit, the Issuing
Lender will promptly notify the Administrative Agent thereof. The Issuing Lender
will process such L/C Application,
35
and the other certificates, documents and other papers delivered to the Issuing
Lender in connection therewith, upon receipt thereof in accordance with its
customary procedures and, subject to the terms and conditions hereof, shall
promptly open such Letter of Credit by issuing the original of such Letter of
Credit to the beneficiary thereof and by furnishing a copy thereof to the
Company; provided that no such Letter of Credit shall be issued (a) if the
amount of such requested Letter of Credit, together with the sum of (i) the
aggregate unpaid amount of Revolving L/C Obligations outstanding at the time of
such request and (ii) the maximum aggregate amount available to be drawn under
all Letters of Credit outstanding at such time, would exceed $50,000,000 or (b)
if subsection 4.1 would be violated thereby.
4.6 Payments in Respect of Letters of Credit. (a) If the Issuing
Lender shall make any LC Disbursement in respect of a Letter of Credit, the
Company shall reimburse such LC Disbursement by paying to the Administrative
Agent an amount equal to such LC Disbursement in Dollars, not later than 1:00
P.M., New York City time, on the Business Day immediately following the day that
the Company receives notice of such LC Disbursement; provided that the Company
may, subject to the conditions to borrowing set forth herein, request in
accordance with subsection 4.7 or 5.1 that such payment be financed with an ABR
Loan or Swing Line Loan in an equivalent amount and, to the extent so financed,
the Company's obligation to make such payment shall be discharged and replaced
by the resulting ABR Loan which is a Revolving Credit Loan or Swing Line Loan.
(b) If an Issuing Lender shall make any LC Disbursement,
then, unless the Company shall reimburse such LC Disbursement in full on the
date such LC Disbursement is made, the unpaid amount thereof shall bear
interest, for each day from and including the date such LC Disbursement is made
to but excluding the date that the Company reimburses such LC Disbursement, at
the rate per annum then applicable to ABR Loans; provided that, if the Company
fails to reimburse such LC Disbursement when due pursuant to paragraph (a) of
this subsection, then, subsection 5.7(c) shall apply. Interest accrued pursuant
to this paragraph shall be for the account of the applicable Issuing Lender,
except that interest accrued on and after the date of payment by any Lender
pursuant to paragraph (a) of this Section to reimburse such Issuing Lender shall
be for the account of such Lender to the extent of such payment. If the Company
fails to make such payment when due, then the Administrative Agent shall notify
the applicable Issuing Lender and each other applicable Lender of the applicable
LC Disbursement (the "Unreimbursed Amount"), the payment then due from the
Company in respect thereof and such Lender's Revolving Credit Commitment
Percentage thereof. Promptly following receipt of such notice, each applicable
Lender shall pay to the Administrative Agent in Dollars its Revolving Credit
Commitment Percentage of the payment then due from the Company (and subsection
5.18(b) shall apply, mutatis mutandis, to the payment obligations of the
Lenders), and the Administrative Agent shall promptly pay to the applicable
Issuing Lender in Dollars the amounts so received by it from such Lender.
Promptly following receipt by the Administrative Agent of any payment from the
Company pursuant to this paragraph, the Administrative Agent shall distribute
such payment to the applicable Issuing Lender or, to the extent that Lenders
have made payments pursuant to this paragraph to reimburse such Issuing Lender,
then to such Lenders and the applicable Issuing Lender as their interests may
appear. Any payment made by a Lender pursuant to this paragraph to reimburse any
Issuing Lender for any LC Disbursement (other than the funding of ABR Loans or a
Swing Line Loan as contemplated above) shall not
36
constitute a Loan and shall not relieve the Company of its obligation to
reimburse such LC Disbursement.
(c) Whenever, at any time after the Issuing Lender has made a
payment under any Letter of Credit and has received from any other Lender such
other Lender's pro rata share of the Revolving L/C Obligation arising therefrom,
the Issuing Lender receives any reimbursement on account of such Revolving L/C
Obligation or any payment of interest on account thereof, the Issuing Lender
will distribute to such other Lender, through the Administrative Agent, its pro
rata share thereof in like funds as received (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such
Lender's participating interest was outstanding and funded); provided that, in
the event that the receipt by the Issuing Lender of such reimbursement or such
payment of interest (as the case may be) is required to be returned, such other
Lender will return to the Issuing Lender, through the Administrative Agent, any
portion thereof previously distributed by the Issuing Lender to it in like funds
as such reimbursement or payment is required to be returned by the Issuing
Lender.
4.7 Swing Line Commitment. (a) Subject to the terms and conditions
hereof, JPMCB (in such capacity, the "Swing Line Lender") agrees to make swing
line loans (individually, a "Swing Line Loan"; collectively, the "Swing Line
Loans") to the Company from time to time during the Revolving Credit Commitment
Period in an aggregate principal amount at any one time outstanding not to
exceed $10,000,000; provided that at no time may the sum of the aggregate
outstanding principal amount of the Swing Line Loans and the Aggregate Revolving
Credit Extensions of Credit exceed the Revolving Credit Commitments. Amounts
borrowed by the Company under this subsection may be repaid and, through but
excluding the Revolving Credit Termination Date, reborrowed. The Swing Line
Loans shall be denominated in Dollars and be ABR Loans, and shall not be
entitled to be converted into Eurodollar Loans. The Company shall give JPMCB
irrevocable notice (which notice must be received by JPMCB prior to 1:00 P.M.,
New York City time) on the requested Borrowing Date specifying the amount of
each requested Swing Line Loan, which shall be in the minimum amount of $500,000
or a multiple of $100,000 in excess thereof. The proceeds of each Swing Line
Loan will be made available by JPMCB to the Company by crediting the account of
the Company designated by the Company with such proceeds by 4:00 P.M., New York
City time; provided that Swing Line Loans used to finance the reimbursement of
an LC Disbursement as provided in subsection 4.6 shall be remitted by the
Administrative Agent to the applicable Issuing Lender. The proceeds of Swing
Line Loans may be used solely for the purposes referred to in subsection 4.2.
(b) JPMCB at any time in its sole and absolute discretion
may, and on the fifth day (or if such day is not a Business Day, the next
Business Day) after the Borrowing Date with respect to any Swing Line Loans
shall, on behalf of the Company (which hereby irrevocably directs JPMCB to act
on its behalf), request each Lender, including JPMCB, to make a Revolving Credit
Loan (which shall be initially an ABR Loan) in an amount equal to such Lender's
Revolving Credit Commitment Percentage of the amount of such Swing Line Loans
(the "Refunded Swing Line Loans") outstanding on the date such notice is given.
Unless any of the events described in paragraph (f) of Section 10 shall have
occurred (in which event the procedures of paragraph (c) of this subsection
shall apply) each Lender shall make the proceeds of its Revolving Credit Loan
available to JPMCB for the account of JPMCB at the office of JPMCB located at
270 Park Avenue, New York, New York 10017 prior to 12:00 Noon (New
37
York City time) in funds immediately available on the Business Day next
succeeding the date such notice is given. The proceeds of such Revolving Credit
Loans shall be immediately applied to repay the Refunded Swing Line Loans.
(c) If prior to the making of a Revolving Credit Loan
pursuant to paragraph (b) of this subsection one of the events described in
paragraph (f) of Section 10 shall have occurred, each Lender will, on the date
such Loan would otherwise have been made, purchase an undivided participating
interest in the Refunded Swing Line Loans in an amount equal to its Revolving
Credit Commitment Percentage of such Refunded Swing Line Loans. Each Lender will
immediately transfer to JPMCB, in Same Day Funds, the amount of its
participation.
(d) Whenever, at any time after JPMCB has received from any
Lender such Lender's participating interest in a Swing Line Loan, JPMCB receives
any payment on account thereof, JPMCB will distribute to such Lender its
participating interest in such amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender's
participating interest was outstanding and funded) in like funds as received;
provided, however, that in the event that such payment received by JPMCB is
required to be returned, such Lender will return to JPMCB any portion thereof
previously distributed by JPMCB to it in like funds as such payment is required
to be returned by JPMCB.
4.8 Participations. Each Lender's obligation to purchase
participating interests pursuant to subsection 4.4 and clauses (b) and (c) of
subsection 4.7 is absolute and unconditional as set forth in subsection 5.16.
SECTION 5. GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF
CREDIT
5.1 Procedure for Borrowing by the Company. (a) The Company may
borrow under the Commitments on any Business Day. With respect to any borrowings
to take place on the Amendment Effective Date, the Company shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 10:00 A.M., New York City time, on the Amendment
Effective Date). With respect to any subsequent borrowings, the Company shall
give the Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to (i) 1:00 P.M., New York City time, three
Business Days prior to the requested Borrowing Date in the case of a proposed
borrowing of Eurodollar Loans and (ii) 11:00 A.M., New York City time, on the
requested Borrowing Date if the borrowing is to be solely of ABR Loans; provided
that any such notice of a borrowing of ABR Loans to finance the reimbursement of
an LC Disbursement as contemplated by subsection 4.6(a) may be given not later
than 1:00 P.M., New York City time, on the date of the proposed borrowing)
specifying (A) the amount of the borrowing, (B) whether such Loans are initially
to be Eurodollar Loans or ABR Loans, or a combination thereof, (C) if the
borrowing is to be entirely or partly Eurodollar Loans, the length of the
Interest Period for such Eurodollar Loans and (D) the amount of such borrowing
to be constituted by Revolving Credit Loans and/or Additional Term Loans. Upon
receipt of such notice the Administrative Agent shall promptly notify each
Lender (which notice shall in any event be delivered to each Lender by 3:00
P.M., New York City time, on such date or, in the case of Loans to be made on
the Amendment
38
Effective Date, promptly following receipt thereof by the Administrative Agent).
Not later than 12:00 Noon, New York City time, on the Borrowing Date specified
in such notice, each Lender shall make available to the Administrative Agent at
the office of the Administrative Agent specified in subsection 12.2 (or at such
other location as the Administrative Agent may direct) in Dollars an amount in
Same Day Funds equal to the amount of the Loan to be made by such Lender.
Subject to subsection 4.7(b) and any irrevocable direction of the Company
pursuant to subsection 4.1(a), loan proceeds received by the Administrative
Agent hereunder shall promptly be made available to the Company by the
Administrative Agent's crediting the account of the Company designated by the
Company, with the aggregate amount actually received by the Administrative Agent
from the Lenders and in like funds as received by the Administrative Agent;
provided that Revolving Credit Loans made to finance the reimbursement of an L/C
Disbursement as provided in subsection 4.6 shall be remitted by the
Administrative Agent to the applicable Issuing Lender.
(b) Any borrowing of Eurodollar Loans by the Company
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, (i) except as provided in subsection 4.1(b),
the aggregate principal amount of all Eurodollar Loans having the same Interest
Period shall not be less than $1,000,000 or a whole multiple of $1,000,000 in
excess thereof, and (ii) no more than ten Interest Periods shall be in effect at
any one time with respect to Eurodollar Loans.
5.2 Repayment of Loans; Evidence of Debt. (a) The Company hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Lender (i) the then unpaid principal amount of each Revolving Credit Loan
and Swingline Loan of such Lender on the Revolving Credit Termination Date (or
such earlier date on which the Revolving Credit Loans become due and payable
pursuant to Section 10) and (ii) the principal amount of the Tranche B Term
Loans of each Term Lender, in accordance with the applicable amortization
schedule set forth in subsection 2.2 (or the then unpaid principal amount of
such Tranche B Term Loans, on the date that any or all of the Tranche B Term
Loans become due and payable pursuant to Section 10). The Company hereby further
agrees to pay interest on the unpaid principal amount of the Loans from time to
time outstanding from the date hereof until payment in full thereof at the rates
per annum, and on the dates, set forth in subsection 5.7.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Company to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain the Register
pursuant to subsection 12.6(d), and a subaccount therein for each Lender, in
which shall be recorded (i) the amount of each Loan made hereunder, the Type
thereof and each Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Company to each Lender hereunder and (iii) both the amount of any sum received
by the Administrative Agent hereunder from the Company and each Lender's share
thereof.
39
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection 5.2(b) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Company therein recorded; provided, however, that the failure
of any Lender or the Administrative Agent to maintain the Register or any such
account, or any error therein, shall not in any manner affect the obligation of
the Company to repay (with applicable interest) the Loans made to such Company
by such Lender in accordance with the terms of this Agreement.
5.3 Conversion and Continuation Options. (a) The Company may elect
from time to time to convert Eurodollar Loans into ABR Loans by giving the
Administrative Agent irrevocable notice of such election, to be received by the
Administrative Agent prior to 12:00 Noon, New York City time, at least three
Business Days prior to the proposed conversion date, provided that any such
conversion of Eurodollar Loans shall only be made on the last day of an Interest
Period with respect thereto. The Company may elect from time to time to convert
all or a portion of the ABR Loans (other than Swing Line Loans) then outstanding
to Eurodollar Loans by giving the Administrative Agent irrevocable notice of
such election, to be received by the Administrative Agent prior to 1:00 P.M.,
New York City time, at least three Business Days prior to the proposed
conversion date, specifying the Interest Period selected therefor, and, if no
Default or Event of Default has occurred and is continuing, such conversion
shall be made on the requested conversion date or, if such requested conversion
date is not a Business Day, on the next succeeding Business Day. Upon receipt of
any notice pursuant to this subsection 5.3, the Administrative Agent shall
promptly, but in any event by 3:00 P.M., New York City time, notify each Lender
thereof. All or any part of the outstanding Loans (other than Swing Line Loans)
may be converted as provided herein, provided that partial conversions of Loans
shall be in the aggregate principal amount of $1,000,000 or a whole multiple of
$1,000,000 in excess thereof, and the aggregate principal amount of the
resulting Eurodollar Loans outstanding in respect of any one Interest Period
shall be at least $1,000,000 or a whole multiple of $1,000,000 in excess
thereof.
(b) So long as no Default or Event of Default has occurred
and is continuing, the Company may elect from time to time to continue
Eurodollar Loans upon the expiration of the then current Interest Period with
respect to such Eurodollar Loans by giving the Administrative Agent irrevocable
notice of such election, to be received by the Administrative Agent prior to
1:00 P.M., New York City time, at least three Business Days prior to the end of
such Interest Period, in each case specifying the new Interest Period selected
therefor, provided that any such continuation shall only be made on the last day
of an Interest Period with respect thereto. So long as no Default or Event of
Default has occurred and is continuing, such continuation shall become effective
on the last day of such Interest Period. If the Company fails to timely deliver
such notice with respect to a Eurodollar Loan, such Eurodollar Loan shall be
continued into a Eurodollar Loan with a one month Interest Period on the last
day of such Interest Period.
5.4 Changes of Commitment Amounts. (a) The Company shall have the
right, upon not less than three Business Days' notice to the Administrative
Agent, to terminate or, from time to time, reduce the Revolving Credit
Commitments subject to the provisions of this subsection 5.4. To the extent, if
any, that the sum of the Revolving Credit Loans, Swing Line Loans, and Revolving
L/C Obligations then outstanding and the amounts available to be drawn
40
under outstanding Letters of Credit exceeds the amount of the Revolving Credit
Commitments as then reduced, the Company shall be required to make a prepayment
equal to such excess amount, the proceeds of which shall be applied first, to
payment of the Swing Line Loans then outstanding, second, to payment of the
Revolving Credit Loans then outstanding, third, to payment of any Revolving L/C
Obligations then outstanding, and last, to cash collateralize any outstanding
Letters of Credit on terms reasonably satisfactory to the Administrative Agent.
Any such termination of the Revolving Credit Commitments shall be accompanied by
prepayment in full of the Revolving Credit Loans, Swing Line Loans and Revolving
L/C Obligations then outstanding and by cash collateralization of any
outstanding Letter of Credit on terms reasonably satisfactory to the
Administrative Agent. Upon termination of the Revolving Credit Commitments any
Letter of Credit then outstanding which has been so cash collateralized shall no
longer be considered a "Letter of Credit", as defined in subsection 1.1 and any
L/C Participating Interests heretofore granted by the Issuing Lender to the
Lenders in such Letter of Credit shall be deemed terminated (subject to
automatic reinstatement in the event that such cash collateral is returned and
the Issuing Lender is not fully reimbursed for any such Revolving L/C
Obligations) but the Letter of Credit fees payable under subsection 5.11 shall
continue to accrue to the Issuing Lender (or, in the event of any such automatic
reinstatement, as provided in subsection 5.11) with respect to such Letter of
Credit until the expiry thereof.
(b) Interest accrued on the amount of any partial prepayment
pursuant to this subsection 5.4 to the date of such partial prepayment shall be
paid on the Interest Payment Date next succeeding the date of such partial
prepayment. In the case of the termination of the Revolving Credit Commitments,
interest accrued on the amount of any prepayment relating thereto and any unpaid
commitment fee accrued hereunder shall be paid on the date of such termination.
Any such partial reduction of the Revolving Credit Commitments shall be in an
amount of $1,000,000 or a whole multiple of $500,000 in excess thereof, and
shall reduce permanently the Revolving Credit Commitments then in effect.
5.5 Optional Prepayments. The Company may at any time and from
time to time prepay Loans, in whole or in part, without premium or penalty, upon
at least one Business Day's irrevocable notice to the Administrative Agent in
the case of ABR Loans and two Business Days' irrevocable notice to the
Administrative Agent in the case of Eurodollar Loans and specifying the date and
amount of prepayment; provided that Eurodollar Loans prepaid on other than the
last day of any Interest Period with respect thereto shall be prepaid subject to
the provisions of subsection 5.21. Upon receipt of such notice the
Administrative Agent shall promptly notify each Lender thereof. If such notice
is given, the Company shall make such prepayment, and the payment amount
specified in such notice shall be due and payable, on the date specified
therein. Accrued interest on the amount of any Loans paid in full pursuant to
this subsection 5.5 shall be paid on the date of such prepayment. Accrued
interest on the amount of any partial prepayment shall be paid on the Interest
Payment Date next succeeding the date of such partial prepayment. Partial
prepayments shall be in an aggregate principal amount equal to the lesser of (A)
$1,000,000 or a whole multiple of $500,000 in excess thereof and (B) the
aggregate unpaid principal amount of the applicable Loans, as the case may be.
Any amount prepaid on account of Term Loans may not be reborrowed. Partial
prepayments of the Tranche B Term Loans pursuant to this subsection 5.5 shall be
applied as set forth in section 5.6.
5.6 Mandatory Prepayments.
41
(a) Subject to the provisions of paragraphs (c), (d), and (e)
below, following any issuance of debt obligations or preferred stock of the
Company or any of its Subsidiaries (other than Indebtedness of the Company or
any of its Subsidiaries permitted to be issued under subsection 9.2), an amount
equal to 100% of the Net Proceeds of such debt or preferred stock issuance
shall, unless the Company and the Required Lenders otherwise agree, be applied
by the Company on the date of receipt thereof to the prepayment of the Term
Loans.
(b) (i) Subject to paragraphs (c), (d), and (e) below,
following the consummation of any Asset Sale by the Company or any of its
Subsidiaries, in the case of cash proceeds, and following receipt of cash
proceeds representing payments under notes or other securities received in
connection with any non-cash consideration obtained in connection with such
Asset Sale, an amount equal to 100% of the Net Proceeds of such Asset Sale
shall, unless the Company and the Required Lenders otherwise agree, be applied
by the Company on the date of receipt thereof to the prepayment of the Term
Loans. Notwithstanding the foregoing, if no Default or Event of Default shall
have occurred and shall be continuing at the time of such Asset Sale or at the
proposed time of the application of such proceeds, such proceeds shall not
constitute Net Proceeds except to the extent that within 360 days of receipt of
such proceeds, they have neither been reinvested in productive assets of a kind
then used or usable in the business of the Company and its Subsidiaries nor
contractually committed (and any such proceeds not applied to such contractual
commitments at the time required shall be deemed to be Net Proceeds to be
applied as set forth in this subsection) to be used for such purposes, at which
time all such proceeds shall be deemed to be Net Proceeds.
(ii) Subject to paragraphs (c), (d), and (e), if for any
fiscal year of the Company, commencing with its fiscal year ending on
December 31, 2006, (A) there shall be Excess Cash Flow for such fiscal
year, and (B) the Secured Leverage Ratio as of the last day of such
fiscal year was greater than or equal to 2.5 to 1, then, on or prior to
April 30 of the following fiscal year, an amount equal to 50% of such
Excess Cash Flow shall be applied, to the prepayment of the Term Loans.
(iii) Upon Condemnation Awards or Insurance Proceeds in an
amount equal to $2,000,000.00 or more in respect of any event or series
of related events being received by or paid to or for the account of
the Company or any of its Subsidiaries (other than the first
$5,000,000.00 in Condemnation Awards or Insurance Proceeds received by
the Company in any fiscal year), and not otherwise included in Section
5.6(a), the Company shall prepay an aggregate principal amount of Term
Loans equal to 100% of all Condemnation Awards and/or Insurance
Proceeds received therefrom immediately upon receipt thereof by the
Company or such Subsidiary; provided, however, that with respect to any
Insurance Proceeds or Condemnation Awards which constitute Reinvestment
Funds, at the election of the Company (as notified by the Company to
the Administrative Agent on or prior to the date of receipt of such
Insurance Proceeds or Condemnation Awards), and so long as no Default
shall have occurred and be continuing and such funds satisfy the
requirements of the definition of "Reinvestment Funds", the Company or
such Subsidiary may apply within 364 days after the receipt of such
cash proceeds to replace or repair the equipment, fixed assets or real
property in respect of which such cash proceeds were received; and
provided, further, however, that any cash proceeds not so
42
applied or which fail to satisfy the requirements of the definition of
"Reinvestment Funds" shall be immediately applied to the prepayment of
the Term Loans.
(c) Partial prepayments of the Term Loans pursuant to
subsection 5.5 or 5.6 shall be applied to the next four quarterly installments,
and then to the remaining installments on a pro rata basis, in each case pro
rata as between the Tranche B Term Loans and the Additional Term Loans, if any.
(d) Upon receipt by the Company or any of its Subsidiaries of
the amounts required to be paid pursuant to clause (i) of paragraph (b) above
from any Asset Sale consisting of the sale of shares of capital stock of any
Subsidiary of the Company (or, upon receipt by the Company or its Subsidiaries
of such amounts as are permitted to be retained in accordance with clause (e) of
this subsection 5.6), (1) the Administrative Agent shall release to the Company,
without representation, warranty or recourse, express or implied, those of such
shares of capital stock of such Subsidiary held by it as Pledged Stock (as
defined in the Company Pledge Agreement) and (2) the Agents and the Lenders
will, upon the request of the Company, execute and deliver any instrument or
other document in a form acceptable to the Administrative Agent which may
reasonably be required to evidence such release.
(e) In the event and on such occasion that the Aggregate
Revolving Credit Extensions of Credit and Swing Line Loans exceed the aggregate
Revolving Credit Commitments, the Company shall prepay Revolving Credit Loans or
Swing Line Loans (or, if no such Loans are outstanding, deposit cash collateral
in an account with the Administrative Agent on terms reasonably satisfactory to
the Administrative Agent) in an aggregate amount equal to such excess.
(f) The Company shall give the Administrative Agent (which
shall promptly notify each Lender) notice as specified in subsection 5.5 of each
prepayment pursuant to subsection 5.5 setting forth the date and amount thereof.
Prepayments of Eurodollar Loans pursuant to this subsection 5.6, if not on the
last day of the Interest Period with respect thereto, shall, at the Company's
option, as long as no Default or Event of Default has occurred and is
continuing, be prepaid subject to the provisions of subsection 5.21 or such
prepayment (after application to any ABR Loans, in the case of prepayments by
the Company) shall be deposited with the Collateral Agent as cash collateral for
such Eurodollar Loans on terms reasonably satisfactory to the Collateral Agent
and thereafter shall be applied to the prepayment of the Eurodollar Loans on the
last day of the respective Interest Periods for such Eurodollar Loans next
ending most closely to the date of receipt of such Net Proceeds, Insurance
Proceeds or Condemnation Awards, as applicable. After such application, any
remaining interest earned on such cash collateral shall be paid to the Company.
(g) Upon the Revolving Credit Termination Date the Company
shall, with respect to each then outstanding Letter of Credit, if any, either
(i) cause such Letter of Credit to be cancelled without such Letter of Credit
being drawn upon or (ii) collateralize the Revolving L/C Obligations with
respect to such Letter of Credit with a letter of credit issued by banks or a
bank satisfactory to the Administrative Agent on terms satisfactory to the
Administrative Agent.
43
5.7 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto on the unpaid principal amount thereof at a rate per annum equal to the
Eurodollar Rate determined for such Interest Period plus the Applicable Margin.
(b) ABR Loans shall bear interest for the period from and
including the date thereof until maturity thereof on the unpaid principal amount
thereof at a rate per annum equal to the ABR plus the Applicable Margin.
(c) (i) If all or a portion of (A) the principal amount of
any of the Loans or (B) any interest payable thereon (or fees hereunder) shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall, and (ii) if any Default or Event of
Default described in subsection 10(f) shall occur, all outstanding Obligations
shall, in each case, without limiting the rights of the Lenders under Section
10, bear interest at a rate per annum which is (A) in the case of overdue
principal, 2% above the rate that would otherwise be applicable thereto pursuant
to the foregoing provisions of this subsection (provided that for all purposes
of determining the Applicable Margin for purposes of this clause (c), the
Applicable Level shall be deemed to be Level 1) or (B) in the case of overdue
interest and fees, 2% above the rate described in paragraph (b) of this
subsection for Revolving Credit Loans which are ABR Loans (provided that for all
purposes of determining the Applicable Margin purposes of this paragraph (c),
the Applicable Level shall be deemed to be Level 1), in each case from the date
of such nonpayment or Event of Default, as applicable, until such amount is paid
in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date; provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable on demand by the Administrative Agent made at the
request of the Required Lenders.
5.8 Computation of Interest and Fees. (a) Interest in respect of
ABR Loans at any time the ABR is calculated based on the Prime Rate and all fees
hereunder shall be calculated on the basis of a 365 or 366, as the case may be,
day year for the actual days elapsed. Interest in respect of Eurodollar Loans
and ABR Loans at any time the ABR is not calculated based on the Prime Rate
shall be calculated on the basis of a 360 day year for the actual days elapsed.
The Administrative Agent shall as soon as practicable notify the Company and the
Lenders of each determination of a Eurodollar Rate. Any change in the interest
rate on a Loan resulting from a change in the ABR shall become effective as of
the opening of business on the day on which such change in the ABR becomes
effective. The Administrative Agent shall as soon as practicable notify the
Company and the Lenders of the effective date and the amount of each such
change.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Company and the Lenders in the absence of manifest
error. The Administrative Agent shall, at the request of the Company, deliver to
the Company a statement showing the quotations used by the Administrative Agent
in determining the Eurodollar Rate.
5.9 Commitment Fees.
44
(a) The Company agrees to pay to the Administrative Agent,
for the account of each Lender, a commitment fee in Dollars from and including
the Amendment Effective Date until the date on which the Applicable Level is
determined for the fiscal quarter ending December 31, 2006, on such Lender's
Available Revolving Credit Commitment outstanding from time to time, at a rate
per annum for each day during the period for which payment is made equal to
..375%. Thereafter, the Company agrees to pay to the Administrative Agent, for
the account of each Lender, a commitment fee in Dollars on such Lender's
Available Revolving Credit Commitments outstanding from time to time, at a rate
per annum for each day during the period for which payment is made, equal to the
rate per annum set forth below opposite the Applicable Level in effect on such
day:
Level 1: .500%
Level 2: .375%
Level 3: .375%
Level 4: .300%
(b) The commitment fee provided for in this subsection 5.9
shall be payable quarterly in arrears on the last day of each fiscal quarter
ending after the Amendment Effective Date and on the Revolving Credit
Termination Date with respect to the Available Revolving Credit Commitments.
5.10 Certain Fees. The Company agrees to pay to the Administrative
Agent for its own account a non-refundable agent's fee in the amount and payable
on such dates as provided in the Administrative Agency Fee Letter (as the same
may be amended, supplemented, and restated or otherwise modified from time to
time).
5.11 Letter of Credit Fees. (a) In lieu of any letter of credit
commissions and fees provided for in any L/C Application relating to Letters of
Credit (other than standard administrative issuance, amendment and negotiation
fees), the Company agrees to pay the Administrative Agent a Letter of Credit fee
in Dollars, for the account of the Issuing Lender and the Participating Lenders,
on the daily outstanding amount available to be drawn under each Letter of
Credit at a rate per annum equal to the Applicable Margin for Revolving Credit
Loans which are Eurodollar Loans in effect on such day, whether or not there are
any such Eurodollar Loans outstanding at such time, payable in arrears, on the
last day of each fiscal quarter of the Company and on the Revolving Credit
Termination Date.
In addition, the Company shall pay to the Issuing Lender with
respect to each Letter of Credit, in arrears on the last day of each fiscal
quarter of the Company and on the Revolving Credit Termination Date with respect
to the Revolving Credit Commitments, a fee in Dollars to be agreed with the
applicable Issuing Lender but not greater than 1/8 of 1% per annum on the
average outstanding amount available to be drawn under such Letter of Credit,
solely for its own account as Issuing Lender of such Letter of Credit and not on
account of its L/C Participating Interest therein.
(b) In connection with any payment of fees pursuant to this
subsection 5.11, the Administrative Agent agrees to provide to the Company a
statement of any such fees so
45
paid; provided that the failure by the Administrative Agent to provide the
Company with any such invoice shall not relieve the Company of its obligation to
pay such fees.
5.12 Letter of Credit Reserves. (a) If any Change in Law after the
date of this Agreement shall either (i) impose, modify, deem or make applicable
any reserve, special deposit, assessment or similar requirement against letters
of credit issued by the Issuing Lender or (ii) impose on the Issuing Lender any
other condition regarding this Agreement or any Letter of Credit, and the result
of any event referred to in clause (i) or (ii) above shall be to increase the
cost to the Issuing Lender of issuing or maintaining any Letter of Credit (which
increase in cost shall be the result of the Issuing Lender's reasonable
allocation of the aggregate of such cost increases resulting from such events),
then, upon demand by the Issuing Lender, the Company shall immediately pay to
the Issuing Lender, from time to time as specified by the Issuing Lender,
additional amounts which shall be sufficient to compensate the Issuing Lender
for such increased cost, together with interest on each such amount from the
date demanded until payment in full thereof at a rate per annum equal to the ABR
plus the Applicable Margin for Revolving Credit ABR Loans. A certificate
submitted by the Issuing Lender to the Company concurrently with any such demand
by the Issuing Lender, shall be conclusive, absent manifest error, as to the
amount thereof.
(b) In the event that at any time after the date hereof any
Change in Law with respect to the Issuing Lender shall, in the opinion of the
Issuing Lender, require that any obligation under any Letter of Credit be
treated as an asset or otherwise be included for purposes of calculating the
appropriate amount of capital to be maintained by the Issuing Lender or any
corporation controlling the Issuing Lender, and such Change in Law shall have
the effect of reducing the rate of return on the Issuing Lender's or such
corporation's capital, as the case may be, as a consequence of the Issuing
Lender's obligations under such Letter of Credit to a level below that which the
Issuing Lender or such corporation, as the case may be, could have achieved but
for such Change in Law (taking into account the Issuing Lender's or such
corporation's policies, as the case may be, with respect to capital adequacy) by
an amount deemed by the Issuing Lender to be material, then from time to time
following notice by the Issuing Lender to the Company of such Change in Law,
within 15 days after demand by the Issuing Lender, the Company shall pay to the
Issuing Lender such additional amount or amounts as will compensate the Issuing
Lender or such corporation, as the case may be, for such reduction. If the
Issuing Lender becomes entitled to claim any additional amounts pursuant to this
subsection 5.12(b), it shall promptly notify the Company of the event by reason
of which it has become so entitled. A certificate submitted by the Issuing
Lender to the Company concurrently with any such demand by the Issuing Lender,
shall be conclusive, absent manifest error, as to the amount thereof.
(c) The Company agrees that the provisions of the foregoing
paragraphs (a) and (b) and the provisions of each L/C Application providing for
reimbursement or payment to the Issuing Lender in the event of the imposition or
implementation of, or increase in, any reserve, special deposit, capital
adequacy or similar requirement in respect of the Letter of Credit relating
thereto shall apply equally to each Participating Lender in respect of its L/C
Participating Interest in such Letter of Credit, as if the references in such
paragraphs and provisions referred to, where applicable, such Participating
Lender or any corporation controlling such Participating Lender.
46
5.13 Further Assurances. The Company hereby agrees, from time to
time, to do and perform any and all acts and to execute any and all further
instruments reasonably requested by the Issuing Lender to effect more fully the
purposes of this Agreement and the issuance of Letters of Credit hereunder. The
Company further agrees to execute any and all instruments reasonably requested
by the Issuing Lender in connection with the obtaining and/or maintaining of any
insurance coverage applicable to any Letters of Credit.
5.14 Obligations Absolute. The payment obligations of the Company
under this Agreement with respect to the Letters of Credit shall be
unconditional and irrevocable and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances, including, without limitation,
the following circumstances:
(i) the existence of any claim, set-off, defense or other
right which the Company or any of its Subsidiaries may have at any time
against any beneficiary, or any transferee, of any Letter of Credit (or
any Persons for whom any such beneficiary or any such transferee may be
acting), the Issuing Lender, any Agent or any Lender, or any other
Person, whether in connection with this Agreement, the Related
Documents, any Credit Documents, the transactions contemplated herein,
or any unrelated transaction;
(ii) any statement or any other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iii) payment by the Issuing Lender under any Letter of
Credit against presentation of a draft or certificate which does not
comply with the terms of such Letter of Credit, except where such
payment constitutes gross negligence or willful misconduct on the part
of the Issuing Lender; or
(iv) any other circumstances or happening whatsoever, whether
or not similar to any of the foregoing, except for any such
circumstances or happening constituting gross negligence or willful
misconduct on the part of the Issuing Lender.
5.15 Assignments. No Participating Lender's participation in any
Letter of Credit or any of its rights or duties hereunder shall be subdivided,
assigned or transferred (other than in connection with a transfer of part or all
of such Participating Lender's Revolving Credit Commitment in accordance with
subsection 12.6) without the prior written consent of the Issuing Lender, which
consent will not be unreasonably withheld. Such consent may be given or withheld
without the consent or agreement of any other Participating Lender.
Notwithstanding the foregoing, a Participating Lender may subparticipate its L/C
Participating Interest without obtaining the prior written consent of the
Issuing Lender.
5.16 Participations. Each Lender's obligation to purchase
participating interests pursuant to subsections 4.4 and 4.7(c) shall be absolute
and unconditional and shall not be affected by any circumstance, including,
without limitation, (i) any set-off, counterclaim, recoupment, defense or other
right which such Lender may have against the Issuing Lender, the Company, or any
other Person for any reason whatsoever; (ii) the occurrence or continuance of a
Default or an Event of Default; (iii) any adverse change in the condition
(financial or otherwise)
47
of the Company; (iv) any breach of this Agreement by the Company or any other
Lender; or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing.
5.17 Inability to Determine Interest Rate for Eurodollar Loans. In
the event that (a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Company) that by reason
of circumstances affecting the interbank Eurodollar market generally, adequate
and reasonable means do not exist for ascertaining the Eurodollar Rate for any
Interest Period with respect to (i) proposed Loans that the Company has
requested be made as Eurodollar Loans, (ii) any Eurodollar Loans that will
result from the requested conversion of all or part of ABR Loans into Eurodollar
Loans or (iii) the continuation of any Eurodollar Loan as such for an additional
Interest Period, (b) the Administrative Agent is advised by the Required Lenders
that the Eurodollar Rate determined or to be determined for any Interest Period
will not adequately and fairly reflect the cost to Lenders constituting the
Required Lenders of making or maintaining their affected Eurodollar Loans during
such Interest Period by reason of circumstances affecting the interbank
Eurodollar market generally or (c) deposits in Dollars in the relevant amount
and for the relevant period with respect to any such Eurodollar Loan are not
available to any of the Lenders in their respective Eurodollar Lending Offices'
interbank Eurodollar market, the Administrative Agent shall forthwith give
notice of such determination, confirmed in writing, to the Company and the
Lenders at least one day prior to, as the case may be, the requested Borrowing
Date, the conversion date or the last day of such Interest Period. If such
notice is given, (i) any requested Eurodollar Loans shall be made in Dollars as
ABR Loans, (ii) any ABR Loans that were to have been converted to Eurodollar
Loans shall be continued as ABR Loans, and (iii) any outstanding Eurodollar
Loans shall be converted, on the last day of the then current Interest Period
applicable thereto, into ABR Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans shall be made and no ABR Loans
shall be converted to Eurodollar Loans.
5.18 Pro Rata Treatment and Payments. (a) Each borrowing of any
Loans (other than Swing Line Loans) by the Company from the Lenders, each
payment by the Company on account of any fee hereunder (other than as set forth
in subsections 5.10 and 5.11) and any reduction of the Revolving Credit
Commitments, Tranche B Term Loan Commitments, or Additional Term Loan
Commitments of the Lenders hereunder shall be made pro rata according to the
relevant Commitment Percentages of the Lenders. Each payment (including each
prepayment) by the Company on account of principal of and interest on the Loans
(other than Swing Line Loans and other than as set forth in subsections 5.6,
5.19, 5.20 and 5.21) shall be made pro rata according to the relevant Commitment
Percentages of the Lenders. All payments (including prepayments) to be made by
the Company on account of principal, interest and fees shall be made without
set-off or counterclaim and shall be made to the Administrative Agent, for the
account of the Lenders, at the Administrative Agent's office located at 270 Park
Avenue, New York, New York 10017, in Same Day Funds. The Administrative Agent
shall promptly distribute such payments ratably to each Lender in like funds as
received to the extent required by this Agreement. If any payment hereunder
(other than payments on Eurodollar Loans) becomes due and payable on a day other
than a Business Day, such payment shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension. If any payment on
a Eurodollar Loan becomes due and payable on a day other than a Business Day,
the maturity
48
thereof shall be extended to the next succeeding Business Day and, with respect
to payments of principal, interest thereon shall be payable at the then
applicable rate during such extension unless the result of such extension would
be to extend such payment into another calendar month in which event such
payment shall be made on the immediately preceding Business Day. All payments
hereunder shall be made in Dollars.
(b) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a Borrowing Date that such Lender will not
make the amount which would constitute its relevant Commitment Percentage of the
borrowing on such date available to the Administrative Agent, the Administrative
Agent may assume that such Lender has made such amount available to the
Administrative Agent on such Borrowing Date in accordance with subsection 5.1
and the Administrative Agent may, in reliance upon such assumption, make
available to the Company a corresponding amount. If such amount is made
available to the Administrative Agent by such Lender on a date after such
Borrowing Date, such Lender shall pay to the Administrative Agent on demand an
amount equal to the product of (i) the daily average Federal Funds Effective
Rate during such period as quoted by the Administrative Agent, times (ii) the
amount of such Lender's relevant Commitment Percentage of such borrowing, times
(iii) a fraction the numerator of which is the number of days that elapse from
and including such Borrowing Date to the date on which such Lender's relevant
Commitment Percentage of such borrowing shall have become immediately available
to the Administrative Agent and the denominator of which is 360. A certificate
of the Administrative Agent submitted to any Lender with respect to any amounts
owing under this subsection 5.18(b) shall be conclusive, absent manifest error.
If such Lender's relevant Commitment Percentage of such borrowing is not in fact
made available to the Administrative Agent by such Lender within three Business
Days of such Borrowing Date, the Administrative Agent shall be entitled to
recover such amount with interest thereon at the rate per annum applicable to
ABR Loans hereunder on demand, from the Company without prejudice to any rights
which the Company or the Administrative Agent may have against such Lender
hereunder. Nothing contained in this subsection 5.18(b) shall relieve any Lender
which has failed to make available its ratable portion of any borrowing
hereunder from its obligation to do so in accordance with the terms hereof.
(c) The failure of any Lender to make the Loan to be made by
it on any Borrowing Date shall not relieve any other Lender of its obligation,
if any, hereunder to make its Loan on such Borrowing Date, but no Lender shall
be responsible for the failure of any other Lender to make the Loan to be made
by such other Lender on such Borrowing Date.
(d) All payments and prepayments (other than mandatory
prepayments as set forth in subsection 5.6 and other than prepayments as set
forth in subsection 5.20 with respect to increased costs) of Eurodollar Loans
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of all
Eurodollar Loans with the same Interest Period shall not be less than $1,000,000
or a whole multiple of $500,000.00 in excess thereof.
5.19 Illegality. Notwithstanding any other provisions herein, if
any Requirement of Law or any change therein or in the interpretation or
application thereof occurring after the Amendment Effective Date shall make it
unlawful for such Lender to make or maintain Eurodollar Loans as contemplated by
this Agreement, the commitment of such Lender
49
hereunder to make Eurodollar Loans or to convert all or a portion of ABR Loans
into Eurodollar Loans shall forthwith be cancelled and such Lender's Loans then
outstanding as Eurodollar Loans, if any, shall, if required by law and if such
Lender so requests, be converted automatically to ABR Loans on the date
specified by such Lender in such request. To the extent that such affected
Eurodollar Loans are converted into ABR Loans, all payments of principal which
would otherwise be applied to such Eurodollar Loans shall be applied instead to
such Lender's ABR Loans. The Company hereby agrees promptly to pay any Lender,
upon its demand, any additional amounts necessary to compensate such Lender for
any costs incurred by such Lender in making any conversion in accordance with
this subsection 5.19 including, but not limited to, any interest or fees payable
by such Lender to lenders of funds obtained by it in order to make or maintain
its Eurodollar Loans hereunder (such Lender's notice of such costs, as certified
to the Company through the Administrative Agent, to be conclusive absent
manifest error).
5.20 Requirements of Law. (a) In the event that, at any time after
the date hereof, the adoption of any Requirement of Law, or any change therein
or in the interpretation or application thereof or compliance by any Lender with
any request or directive (whether or not having the force of law) from any
central bank or other Governmental Authority:
(i) does or shall subject any Agent or Lender (or its Lending
Office) to any fee of any kind whatsoever with respect to this
Agreement, any Note or any Eurodollar Loans made by it, or change the
basis of imposition of any such fee;
(ii) does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, or deposits or other liabilities in or for the
account of, advances or loans by, or other credit extended by, or any
other acquisition of funds by, any office of such Lender which are not
otherwise included in the determination of the Eurodollar Rate; or
(iii) does or shall impose on such Lender any other
condition;
and the result of any of the foregoing is to increase the cost to such Lender of
making, converting, renewing or maintaining advances or extensions of credit or
to reduce any amount receivable hereunder, in each case, in respect of its
Eurodollar Loans, then, in any such case, the Company, shall promptly pay such
Lender, on demand, any additional amounts necessary to compensate such Lender
for such additional cost or reduced amount receivable as determined by such
Lender with respect to such Eurodollar Loans together with interest on each such
amount from the date demanded until payment in full thereof at a rate per annum
equal to the ABR plus the Applicable Margin for Revolving Credit Loans which are
ABR Loans.
(b) In the event that at any time after the date hereof any
Change in Law with respect to any Lender shall, in the opinion of such Lender,
require that any Commitment of such Lender be treated as an asset or otherwise
be included for purposes of calculating the appropriate amount of capital to be
maintained by such Lender or any corporation controlling such Lender, and such
Change in Law shall have the effect of reducing the rate of return on such
Lender's or such corporation's capital, as the case may be, as a consequence of
such Lender's obligations hereunder to a level below that which such Lender or
such corporation, as the case may be, could have achieved but for such Change in
Law (taking into account such Lender's or
50
such corporation's policies, as the case may be, with respect to capital
adequacy), then from time to time following notice by such Lender to the Company
of such Change in Law as provided in paragraph (c) of this subsection 5.20,
within 15 days after demand by such Lender, the Company shall pay to such Lender
such additional amount or amounts as will compensate such Lender or such
corporation, as the case may be, for such reduction.
(c) If any Lender becomes entitled to claim any additional
amounts pursuant to this subsection 5.20, it shall promptly notify the Company
through the Administrative Agent, of the event by reason of which it has become
so entitled. The Company shall not be required to make any payments to any
Lender for any additional amounts pursuant to this subsection 5.20 unless such
Lender has given written notice to the Company, through the Administrative
Agent, of its intent to request such payments prior to or within 180 days after
the date on which such Lender became entitled to claim such amounts. If any
Lender has notified the Company through the Administrative Agent of any
increased costs pursuant to paragraph (a) of this subsection 5.20, the Company
at any time thereafter may, upon at least two Business Days' notice to the
Administrative Agent (which shall promptly notify the Lenders thereof), and
subject to subsection 5.21, prepay or convert into ABR Loans all (but not a
part) of the Eurodollar Loans then outstanding. Each Lender agrees that, upon
the occurrence of any event giving rise to the operation of paragraph (a) of
this subsection 5.20 with respect to such Lender, it will, if requested by the
Company, and to the extent permitted by law or by the relevant Governmental
Authority, endeavor in good faith to avoid or minimize the increase in costs or
reduction in payments resulting from such event (including, without limitation,
endeavoring to change its Lending Office); provided, however, that such
avoidance or minimization can be made in such a manner that such Lender, in its
sole determination, suffers no economic, legal or regulatory disadvantage. If
any Lender has notified the Company, through the Administrative Agent, of any
increased costs pursuant to paragraph (b) of this subsection 5.20, the Company
at any time thereafter may, upon at least three Business Days' notice to the
Administrative Agent (which shall promptly notify the Lender thereof), and
subject to subsection 5.21, reduce or terminate the Revolving Credit Commitments
in accordance with subsection 5.4.
(d) A certificate submitted by such Lender, through the
Administrative Agent, to the Company shall be conclusive in the absence of
manifest error. The covenants contained in this subsection 5.20 shall survive
the termination of this Agreement and repayment of the outstanding Loans.
(e) Notwithstanding anything to the contrary herein, this
Section 5.20 shall not apply to any Taxes which shall be governed solely by
Section 5.23.
5.21 Indemnity. The Company agrees to indemnify each Lender and to
hold such Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by the Company in payment of the
principal amount of or interest on any Eurodollar Loans of such Lender, (b)
default by the Company in making a borrowing of Eurodollar Loans after the
Company has given a notice in accordance with subsection 5.1 or in making a
conversion of ABR Loans to Eurodollar Loans after the Company has given notice
in accordance with subsection 5.3 or in continuing Eurodollar Loans for an
additional Interest Period after the Company has given a notice in accordance
with clause (b) of the definition of Interest Period, (c) default by the Company
in making any prepayment of Eurodollar Loans after
51
the Company has given a notice in accordance with subsection 5.5, or (d) a
payment or prepayment of a Eurodollar Loan or conversion of any Eurodollar Loan
into an ABR Loan, in either case on a day which is not the last day of an
Interest Period with respect thereto; in each case including, but not limited
to, any such loss or expense arising from interest or fees payable by such
Lender to lenders of funds obtained by it in order to maintain its Eurodollar
Loans hereunder. This covenant shall survive termination of this Agreement and
payment of the outstanding Obligations. The Company shall not be required to
make any payments to any Lender for any additional amounts pursuant to this
subsection 5.21 unless such Lender has given written notice to the Company,
through the Administrative Agent, of its intent to request such payments prior
to or within 180 days after the date on which such Lender became entitled to
claim such amounts.
5.22 Non-Funding Lenders. In the event any Lender (i) is a
Non-Funding Lender, (ii) exercises its rights pursuant to Section 5.19 or (iii)
requests payments pursuant to Section 5.20 or 5.23, the Company may require, at
the Company's expense and subject to Section 5.21, such Lender or the Issuing
Lender to assign, at par plus accrued interest and fees, without recourse (in
accordance with Section 12.6) all of its interests, rights and obligations
hereunder (including all of its Revolving Commitments and the Loans and other
amounts at the time owing to it hereunder and its interest in the Letters of
Credit) to a bank, financial institution or other entity specified by the
Company; provided that (i) such assignment shall not conflict with or violate
any law, rule or regulation or order of any court or other Governmental
Authority, (ii) the Company shall have received the written consent of the
Administrative Agent (and, in the case of an assignment of a Revolving
Commitment, of the Issuing Lender and Swing Line Lender), which consent shall
not unreasonably be withheld, to such assignment, (iii) the Company shall have
paid to the assigning Lender all monies other than principal owing hereunder to
it and (iv) in the case of a required assignment by the Issuing Lender, the
Letters of Credit shall be canceled and returned to the Issuing Lender.
5.23 Taxes.
(a) Any and all payments by or on account of any obligation
of the Company hereunder or under any other Credit Document shall be made free
and clear of and without reduction or withholding for any Indemnified Taxes or
Other Taxes; provided that if the Company shall be required by applicable Law to
deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, any Lender or the Issuing Lender, as the
case may be, receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Company shall make such deductions and (iii)
the Company shall timely pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable Law.
(b) Without limiting the provisions of subsection (a) above,
the Company shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable Law.
52
(c) The Company shall indemnify the Administrative Agent,
each Lender and the Issuing Lender, within 20 days after demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) paid by the Administrative Agent, such Lender or the Issuing
Lender, as the case may be, and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes
or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority (which demand shall be made within 120 days of the
earlier of (x) if the Administrative Agent, such Lender or the Issuing Lender
received written notice from a Governmental Authority demanding payment of such
Indemnified Taxes or Other Taxes, the date the Administrative Agent, such Lender
or the Issuing Lender received such written notice or (y) the date the
Administrative Agent, such Lender or the Issuing Lender filed a tax return on
which such Indemnified Taxes or Other Taxes is reflected). A certificate as to
the amount of such payment or liability delivered to the Company by a Lender or
the Issuing Bank (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Company to a Governmental Authority, the Company
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) (i) Each Lender, if requested by the Company or the
Administrative Agent, shall deliver documentation prescribed by applicable Laws
or reasonably requested by the Company or the Administrative Agent as will
enable the Company or the Administrative Agent to determine whether or not such
Lender is subject to backup withholding or information reporting requirements.
(ii) Each Foreign Lender shall deliver to the Company and the
Administrative Agent (in such number of copies as shall be requested by
the recipient) on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement (and from time to time thereafter
upon the reasonable request of the Company or the Administrative Agent,
but only if such Foreign Lender is legally entitled to do so),
whichever of the following is applicable:
(w) duly completed copies of Internal Revenue Service
Form W-8BEN (or successor form) claiming eligibility for benefits of an income
tax treaty to which the United States is a party;
(x) duly completed copies of Internal Revenue Service
Form W-8ECI (or successor form);
(y) in the case of a Foreign Lender claiming the
benefits of the exemption for portfolio interest under section 881(c) of the
Code, (A) a certificate to the effect that such Foreign Lender is not (I) a
"bank" within the meaning of section 881(c)(3)(A) of the Code, (II) a "10
percent shareholder" of the Company within the meaning of section
53
881(c)(3)(B) of the Code, or (III) a "controlled foreign corporation" described
in section 881(c)(3)(C) of the Code and (B) duly completed copies of Internal
Revenue Service Form W-8BEN (or successor form); or
(z) any other form prescribed by applicable Laws
(including Internal Revenue Service Form W-8IMY) as a basis for claiming
exemption from or a reduction in United States Federal withholding tax duly
completed together with such supplementary documentation as may be prescribed by
applicable Law to permit the Company to determine the withholding or deduction
required to be made.
(iii) Each Lender shall deliver to the Company and the
Administrative Agent such additional duly completed forms, certificates or
documentation described in this subsection (e) which such Lender is legally
entitled to so deliver prior to the expiration or obsolescence of any such
forms, certificates or documentation previously delivered by it pursuant to this
subsection (e). Further, each Lender shall promptly notify the Company and the
Administrative Agent if it is no longer able to deliver, or it is required to
withdraw or change the information on, any form, certificate or documentation
previously delivered by it pursuant to this subsection (e) and such Lender shall
deliver to the Company and the Administrative Agent such additional duly
completed forms, certificates or documentation described in this subsection (e)
which such Lender is legally entitled to so deliver.
(f) Any Lender claiming additional amounts payable pursuant
to this Section 5.23 agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Lending Office if, in the reasonable judgment of such
Lender, the making of such change (i) would eliminate or reduce any such
additional amounts payable to such Lender in the future and (ii) would not
subject such Lender to any unreimbursed out-of-pocket cost or expense and would
not otherwise be disadvantageous to such Lender.
(g) If the Administrative Agent, any Lender or the Issuing
Lender determines, in its sole discretion exercised in good faith, that it has
received a refund of any Indemnified Taxes or Other Taxes as to which it has
been indemnified by the Company or with respect to which the Company has paid
additional amounts pursuant to this Section 5.23, it shall pay to the Company an
amount equal to such refund (but only to the extent of indemnity payments made,
or additional amounts paid, by the Company under this Section 5.23 with respect
to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all
reasonable out-of-pocket expenses of the Administrative Agent, such Lender or
the Issuing Lender, as the case may be, and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund), provided that the Company, upon the request of the Administrative
Agent, such Lender or the Issuing Lender, agrees to repay the amount paid over
to the Company (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent, such Lender or the
Issuing Lender if the Administrative Agent, such Lender or the Issuing Lender is
required to repay such refund to such Governmental Authority. This subsection
(g) shall not be construed to require the Administrative Agent, any Lender or
the Issuing Lender to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to the Company or any other
Person.
54
SECTION 6. REPRESENTATIONS AND WARRANTIES.
In order to induce the Lenders to enter into this Agreement and to
make the Loans and to induce the Issuing Lenders to issue, and the Participating
Lenders to participate in, the Letters of Credit, the Company hereby represents
and warrants to each Lender and each Agent, on and as of the Amendment Effective
Date and on the date of each Loan made or Letter of Credit issued thereafter,
that:
6.1 Corporate Existence; Compliance with Law. Each Credit Party
and its Subsidiaries (a) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation, (b)
has the corporate power and authority and the legal right to own and operate its
property, to lease the property it operates and to conduct the business in which
it is currently engaged, except to the extent that the failure to have such
power, authority, or rights could not reasonably be expected to have a Material
Adverse Effect, (c) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, except where the failure to be so qualified could not reasonably
be expected to have a Material Adverse Effect and (d) is in compliance with all
applicable Requirements of Law (including, without limitation, occupational
safety and health, health care, pension, certificate of need, the Comprehensive
Environmental Response, Compensation and Liability Act, any so-called
"Superfund" or "Superlien" law, or any applicable federal, state, local or other
statute, law, ordinance, code, rule, regulation, order or decree regulating,
relating to, or imposing liability or legally enforceable standards of conduct
concerning, any Materials of Environmental Concern, the Patriot Act, and any and
all anti-terrorism laws), except to the extent that the failure to comply
therewith could not reasonably be expected to, individually or in the aggregate,
have a Material Adverse Effect.
6.2 Corporate Power; Authorization. Each Credit Party has the
corporate power and authority and the legal right to make, deliver and perform
the Credit Documents to which it is a party; the Company has the corporate power
and authority and legal right to borrow hereunder and to have Letters of Credit
issued for its account hereunder. Each Credit Party has taken all necessary
corporate action to authorize the execution, delivery and performance of the
Credit Documents to which it is a party and, in case of the Company, to
authorize the borrowings hereunder and the issuance of Letters of Credit for its
account hereunder. No consent or authorization of, or filing with, any Person
(including, without limitation, any Governmental Authority) is required in
connection with the execution, delivery or performance by any Credit Party, or
the validity or enforceability against any Credit Party, of any Credit Document
to the extent that it is a party thereto, other than any such consent or
authorization which has been obtained or filing which has been made to the
extent required hereunder, or the failure of which to obtain could have a
Material Adverse Effect.
6.3 Enforceable Obligations. Each of the Credit Documents has been
duly executed and delivered on behalf of each Credit Party party thereto and
each of such Credit Documents constitutes the legal, valid and binding
obligation of such Credit Party, enforceable against such Credit Party in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws
55
affecting creditors' rights generally and by general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
6.4 No Conflict With Law or Contractual Obligations. The
performance of each Credit Document, and the use of the proceeds of the Loans
and of drawings under the Letters of Credit will not violate any Requirement of
Law or any material Contractual Obligation applicable to or binding upon any
Credit Party, any of its Subsidiaries or any of its properties or assets, and
will not result in the creation or imposition of (or the obligation to create or
impose) any Lien (other than any Liens created pursuant to the Credit Documents)
on any of its or their respective properties or assets pursuant to any
Requirement of Law applicable to it or them, as the case may be, or any of its
or their Contractual Obligations, except, in the case of any Contractual
Obligations, for any such violations which could not reasonably be expected to
have a Material Adverse Effect.
6.5 No Material Litigation. No litigation or investigation or
proceeding of or by any Governmental Authority or any other Person is pending or
has been overtly threatened against any Credit Party or any of its Subsidiaries,
(a) with respect to the validity, binding effect or enforceability of any Credit
Document, or with respect to the Loans made hereunder, the use of proceeds
thereof or of any drawings under a Letter of Credit, and the other transactions
contemplated hereby or thereby, or (b) which could reasonably be expected to
have a Material Adverse Effect.
6.6 Investment Company Act. Neither any Credit Party nor any of
its Subsidiaries is an "investment company" or a company "controlled" by an
"investment company" (as each of the quoted terms is defined or used in the
Investment Company Act of 1940, as amended).
6.7 Federal Reserve Regulations. No part of the proceeds of any of
the Loans or any drawing under a Letter of Credit will be used to "purchase" or
"carry" "margin stock" within the meaning of Regulation U of the Board or for
any other purpose which violates, or which would be inconsistent with, the
provisions of Regulation T, U or X of the Board. Neither the Company nor any of
its Subsidiaries is engaged or will engage, principally or as one of its
important activities, in the business of extending credit for the purpose of
"purchasing" or "carrying" any "margin stock" within the respective meanings of
each of the quoted terms under said Regulation U.
6.8 No Default. Neither the Company nor any of its Subsidiaries is
in default in the payment or performance of any of its or their Contractual
Obligations in any respect which could reasonably be expected to have a Material
Adverse Effect. Neither the Company nor any of its Subsidiaries is in default
under any order, award or decree of any Governmental Authority or arbitrator
binding upon or affecting it or them or by which any of its or their properties
or assets may be bound or affected in any respect which could reasonably be
expected to have a Material Adverse Effect, and no such order, award or decree
could reasonably be expected to materially adversely affect the ability of the
Company and its Subsidiaries taken as a whole to carry on their businesses as
presently conducted or the ability of any Credit Party to perform its
obligations under any Credit Document to which it is a party.
56
6.9 Taxes. Each of the Company and its Subsidiaries has filed or
caused to be filed or has timely requested an extension to file or has received
an approved extension to file all Federal and all other material tax returns
which are required to have been filed, and has paid all material Taxes shown to
be due and payable on said returns or extension requests or on any assessments
made against it or any of its property and all other material Taxes imposed on
it or any of its property by any Governmental Authority (other than those the
amount or validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided in the books of the Company or its Subsidiaries, as the
case may be); and no claims are being asserted in writing with respect to any
such material Taxes (other than those the amount or validity of which is
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided in the
books of the Company or its Subsidiaries, as the case may be).
6.10 Subsidiaries. The Subsidiaries of the Company listed on
Schedule 6.10(a) constitute all of the Domestic Subsidiaries of the Company and
the Subsidiaries listed on Schedule 6.10(b) constitute all of the Foreign
Subsidiaries of the Company, in each case, as of the Amendment Effective Date.
6.11 Ownership of Property; Liens. Except as set forth in Schedule
6.11, the Company and each of its Subsidiaries has valid and subsisting
Leasehold interests in all its respective material Real Property, and good title
to or valid and subsisting Leasehold interests in all of its respective material
other property, except, in each case, as such failure to have good and valid
title or valid and subsisting Leasehold interests could not reasonably be
expected to have a Material Adverse Effect, and none of such property is
subject, except as permitted hereunder, to any Lien (including, without
limitation, and subject to subsection 9.3 hereof, Federal, state and other Tax
liens).
6.12 ERISA. No "prohibited transaction" (as defined in Section 406
of ERISA or Section 4975 of the Code) or "accumulated funding deficiency" (as
defined in Section 302 of ERISA) or Reportable Event (other than a Reportable
Event with respect to which the 30-day notice requirement under Section 4043 of
ERISA has been waived) has occurred during the five years preceding each date on
which this representation is made or deemed made with respect to any Single
Employer Plan in any case the consequences of which could reasonably be expected
to have a Material Adverse Effect. The present value of all accrued benefits
under each Single Employer Plan maintained by the Company or a Commonly
Controlled Entity (based on those assumptions used to fund such Plan) did not,
as of the most recent annual valuation date in respect of each such Plan, exceed
the fair market value of the assets of the Plan (including for these purposes
accrued but unpaid contributions) allocable to such benefits by an amount that
could reasonably be expected to have a Material Adverse Effect. The liability to
which the Company would become subject under ERISA if the Company or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date hereof could not
reasonably be expected to have a Material Adverse Effect. No Multiemployer Plan
is either in Reorganization or Insolvent in any case the consequences of which
could reasonably be expected to have a Material Adverse Effect.
6.13 Environmental Matters.
57
(a) The Properties do not contain any Materials of
Environmental Concern in concentrations which constitute a violation of, or
could reasonably be expected to give rise to liability under, Environmental Laws
that could reasonably be expected to have a Material Adverse Effect.
(b) The Properties and all operations at the Properties are
in compliance with all applicable Environmental Laws, except for failure to be
in compliance that could not reasonably be expected to have a Material Adverse
Effect, and there is no contamination at, under or about the Properties that
could reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters or compliance with
Environmental Laws with regard to the Properties that could reasonably be
expected to have a Material Adverse Effect, nor does the Company have knowledge
that any such action is being contemplated, considered or threatened.
(d) There are no judicial proceedings or governmental or
administrative actions pending or threatened under any Environmental Law to
which the Company or any Subsidiary is or will be named as a party with respect
to the Properties that could reasonably be expected to have a Material Adverse
Effect, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders under any Environmental Law with respect
to the Properties that could reasonably be expected to have a Material Adverse
Effect.
6.14 Accuracy and Completeness of Financial Statements.
(a) (i) The audited consolidated balance sheet of the Company
and its Subsidiaries at December 31, 2005 and the related consolidated
statements of operations, shareholders' equity and cash flows for the fiscal
year ended on such date, reported on by Deloitte & Touche, LLP and (ii) the
unaudited consolidated balance sheet of the Company and its Subsidiaries as of
June 30, 2006, and the related consolidated statements of income, shareholders'
equity and cash flows for the fiscal periods ended on such date, fairly present
in all material respects (except, with respect to interim reports, for year-end
adjustments and absence of detailed footnote disclosures) the consolidated
financial position of the Company and its Subsidiaries as at such date, and the
consolidated results of their operations and cash flows for the fiscal periods
then ended and, in the case of the statements referred to in the foregoing
clause (ii), the portion of the fiscal year through such date, in each case, in
accordance with GAAP consistently applied throughout the periods involved
(except as noted therein).
(b) The Projections delivered pursuant to section 7.1(b)
hereof were prepared in good faith on the basis of the assumptions stated
therein, which assumptions were fair in light of the conditions existing at the
time of delivery of such forecasts, and represented, at the time of delivery,
the Company's estimate of its future financial condition and performance.
6.15 Absence of Undisclosed Liabilities. Except as reflected in
the consolidated balance sheet of the Company as of June 30, 2006 and except for
the Loans incurred on the Amendment Effective Date, neither the Company nor any
of its Subsidiaries has
58
or is subject to any liabilities (absolute, accrued, contingent or otherwise),
except liabilities or obligations which could not, individually or in the
aggregate, reasonably be expected to constitute a Material Adverse Effect.
6.16 No Material Adverse Change. Since December 31, 2005, there
has not been any event, occurrence, fact, condition, change, development or
effect which individually or in the aggregate has had or could reasonably be
expected to have a Material Adverse Effect.
6.17 Solvency. The Company is, individually and together with its
Subsidiaries on a consolidated basis, Solvent. No Credit Party intends to, nor
will it permit any of its Subsidiaries to, nor does it believe that it or any of
its Subsidiaries has or will incur debts beyond its ability to pay such debts as
they mature, taking into account the timing of and amounts of cash to be
received by it or any such Subsidiary and the timing of the amounts of cash to
be payable on or in respect of its Indebtedness or the Indebtedness of any such
Subsidiary.
6.18 Intellectual Property. The Company and each of its
Subsidiaries own, or possess the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses and
other intellectual property rights (collectively, "IP Rights") that are
reasonably necessary for the operation of their respective businesses, without
conflict with the rights of any other Person. To the best knowledge of the
Company, no slogan or other advertising device, product, process, method,
substance, part or other material now employed, or now contemplated to be
employed, by the Company or any of its Subsidiaries infringes upon any rights
held by any other Person. No claim or litigation regarding any of the foregoing
is pending or, to the best knowledge of the Company, threatened, which, either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
6.19 Creation and Perfection of Security Interests.
(i) Article 9 Collateral. Each of the Security Agreement and
the Pledge Agreements is effective to create in favor of the Collateral
Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral described therein
and, when financing statements in appropriate form are filed in the
offices specified on Schedule 4.01 to the Security Agreement and the
Pledged Collateral is delivered to the Collateral Agent, each of the
Security Agreement and the Pledge Agreements shall constitute a fully
perfected Lien on, and security interest in, all right, title and
interest of the grantors thereunder in such of the Collateral in which
a security interest can be perfected under Article 9 of the UCC, in
each case prior and superior in right to any other Person, other than
with respect to Permitted Liens.
(ii) Intellectual Property. When financing statements in the
appropriate form are filed in the offices specified on Schedule 4.01 to
the Security Agreement, the Assignment of Patents and Trademarks,
substantially in the form of Exhibit A to the Security Agreement, is
filed in the United States Patent and Trademark Office and the
Assignment of Copyrights, substantially in the form of Exhibit B to the
Security Agreement, is filed in the United States Copyright Office, the
Security Agreement shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the grantors
thereunder in the United States patents, trademarks,
59
copyrights, licenses and other intellectual property rights covered in
such Assignments, in each case prior and superior in right to any other
Person (it being understood that subsequent recordings in the United
States Patent and Trademark Office and the United States Copyright
Office may be necessary to perfect a lien on registered trademarks,
trademark applications and copyrights acquired by the Credit Parties
after the Amendment Effective Date).
(iii) Status of Liens. The Collateral Agent, for the ratable
benefit of the Secured Parties, will at all times have the Liens
provided for in the Collateral Documents and, subject to the filing by
the Collateral Agent of continuation statements to the extent required
by the UCC, the Collateral Documents will at all times constitute valid
and continuing liens of record and first priority perfected security
interests in all the Collateral referred to therein, except as priority
may be affected by Permitted Liens. As of the Amendment Effective Date,
no filings or recordings are required in order to perfect the security
interests created under the Collateral Documents, except for filings or
recordings listed on Schedule 4.01 to the Security Agreement, and all
such listed filings and recordings have been made.
(iv) After giving effect to this Agreement, the amendment and
restatement of the Original Credit Agreement as contemplated hereby
does not impair the validity, effectiveness or priority of the Liens
granted pursuant to any Collateral Documents, and such Liens continue
unimpaired with the same priority to secure repayment of all the
Obligations, whether heretofore or hereafter incurred. The amendment
and restatement of the Original Credit Agreement as contemplated hereby
does not require that any new filings be made or other action taken to
perfect or to maintain the perfection of such Liens. The position of
the Secured Parties with respect to such Liens, the Collateral in which
a security interest was granted pursuant to the Collateral Documents,
and the ability of the Administrative Agent to realize upon such Liens
pursuant to the terms of the Collateral Documents have not been
adversely affected in any material respect by the amendment and
restatement of the Original Credit Agreement effected pursuant to this
Agreement or by the execution, delivery, performance or effectiveness
of this Agreement.
6.20 Accuracy and Completeness of Disclosure. The Company has
disclosed to the Administrative Agent and the Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its
Subsidiaries is subject, and all other matters known to it, that, individually
or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect. No report, financial statement, certificate or other information
furnished (whether in writing or orally) by or on behalf of the Company or any
of its Subsidiaries to the Administrative Agent or any Lender in connection with
the transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or under any other Credit Document (in each case as modified
or supplemented by other information so furnished), taken as a whole, contains
any material misstatement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that, with respect to projected
financial information, the Company represents only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the
time.
60
SECTION 7. CONDITIONS PRECEDENT
7.1 Conditions to Initial Loans and Letters of Credit. The
effectiveness of this Agreement, the obligation of each Lender to make its Loans
on the Amendment Effective Date and the obligation of the Issuing Lenders to
issue any Letter of Credit on the Amendment Effective Date are subject to the
satisfaction, or waiver by the Lenders immediately prior to or concurrently with
the making of such Loans or the issuance of such Letter of Credit, as the case
may be, of the following conditions precedent (which must be satisfied or waived
on or prior to August 31, 2006):
(a) Agreement. The Administrative Agent shall have received
counterparts hereof signed by each of the parties hereto (or, in the case of any
party as to which an executed counterpart shall not have been received, receipt
by the Administrative Agent in form satisfactory to it or telecopy or other
written confirmation from such party of execution of a counterpart hereof of
such party).
(b) Financial Information. The Initial Lenders shall have
received (i) unaudited consolidated balance sheets and related statements of
income, stockholders' equity and cash flows of the Company for each fiscal
quarter of the current fiscal year ending more than 40 days prior to the
Amendment Effective Date and for the comparable periods of the fiscal year
ending December 31, 2005 (with respect to which the Company's independent
auditors, Deloitte & Touche, LLP, shall have performed an SAS 100 review); and
(ii) forecast (the "Projections") of the financial performance of the Company
and its subsidiaries (x) on an annual basis, through 2011 and (y) on a quarterly
basis, through 2007 satisfactory to the Initial Lenders. The financial
statements referred to in clause (i) shall be prepared in accordance with GAAP.
(c) Acknowledgement Agreements. The Administrative Agent
shall have received the Acknowledgement Agreement duly executed and delivered by
a duly authorized officer of the Company.
(d) Legal Opinions. The Administrative Agent shall have
received, dated the Amendment Effective Date and addressed to the Administrative
Agent, the Collateral Agent, and the Lenders, opinions of (i) Shearman &
Sterling LLP, New York counsel to the Company and (ii) Edmund J. Moriarty,
general counsel to the Company, each in form and substance reasonably
satisfactory to the Administrative Agent. Such opinions shall also cover such
other matters incident to the transactions contemplated by this Agreement as the
Administrative Agent shall reasonably require.
(e) Closing Certificates. The Administrative Agent shall have
received Closing Certificate of the Company dated the Amendment Effective Date,
substantially in the form of Exhibits B-1 and B-2 hereto, respectively, with
appropriate insertions and attachments, satisfactory in form and substance to
the Administrative Agent and its counsel, executed by (i) the President or any
Vice President and (ii) the Secretary or any Assistant Secretary of the Company.
(f) Fees. The Administrative Agent shall have received for
the account of the Lenders, or for its own account, as the case may be, all fees
(including the fees referred to in
61
subsection 5.10) payable to the Lenders and the Administrative Agent on or prior
to the Amendment Effective Date, including all costs, fees, expenses (including,
without limitation, reasonable fees of one legal counsel to the Initial Lenders
and one local counsel in each appropriate jurisdiction) and other compensation
payable to the Lenders, the Joint Lead Arrangers, the Initial Lenders, the
Administrative Agent and the Collateral Agent, including any and all Fees
pursuant to (i) the Fee Letter and (ii) the Administrative Agency Fee Letter,
subject to receipt of supporting documentation in reasonable detail.
(g) Reserved.
(h) Reserved.
(i) Organizational Documents. The Administrative Agent shall
have received true and correct copies of the Organization Documents of each
Credit Party, certified as to authenticity by the Secretary or Assistant
Secretary of each such Credit Party.
(j) Corporate Documents. The Administrative Agent shall have
received copies of certificates from the Secretary of State or other appropriate
authority of such jurisdiction, evidencing good standing of each Credit Party in
its jurisdiction of incorporation and in each state where the ownership, lease
or operation of property or the conduct of business requires it to qualify as a
foreign corporation except where the failure to so qualify could not reasonably
be expected to have a Material Adverse Effect.
(k) Additional Matters. All other documents and legal matters
in connection with the transactions contemplated by this Agreement shall be
reasonably satisfactory in form and substance to the Administrative Agent and
its counsel. Any information submitted to any of the Initial Lenders by or on
behalf of the Company or any of its Subsidiaries or affiliates shall be accurate
and complete in all material respects.
(l) Compliance with Law; Approvals. The Company and its
subsidiaries, shall be in compliance, in all material respects, with all
applicable foreign and U.S. federal, state and local laws and regulations. All
necessary governmental approvals in connection therewith shall have been
obtained and shall be in effect, other than any such approvals the absence of
which would not materially impair the performance of obligations under, or in
connection with, the initial borrowings to be made hereunder on the Amendment
Effective Date, and the payment of fees, commissions, and expenses in connection
with the foregoing.
(m) Regulatory Authority Information. The Company and each
Subsidiary shall have provided the documentation and other information to the
Lenders that is required by regulatory authorities under applicable "know your
customer" and anti-money-laundering rules and regulations, including, without
limitation, the Patriot Act.
(n) Repayment of Original Credit Agreement. On the Amendment
Effective Date, all loans outstanding under the Original Credit Agreement shall
have been repaid in full, together with accrued interest thereon, and all other
amounts (other than contingent indemnification obligations not yet due and
payable and other than the Existing Letters of Credit continued as Letters of
Credit hereunder) owing pursuant to each Original Credit Agreement Loan Document
(as defined in the Original Credit Agreement) shall have been repaid in full,
and
62
the Administrative Agent shall have received evidence in form, scope and
substance reasonably satisfactory to it that the matters set forth in this
subsection (n) have been satisfied at such time.
7.2 Conditions to All Loans and Letters of Credit. The obligation
of each Lender to make any Loan (other than any Revolving Credit Loan the
proceeds of which are to be used to repay Refunded Swing Line Loans) and the
obligation of each Issuing Lender to issue any Letter of Credit is subject to
the satisfaction of the following conditions precedent on the relevant Borrowing
Date:
(a) Representations and Warranties. Each of the
representations set forth in Section 6, or which are contained in any other
Credit Document shall, to the extent already qualified by materiality, be true
and correct in all respects, and, if not so already qualified, shall be true and
correct in all material respects, in any case on and as of the date such Loan is
made (or such Letter of Credit is issued) as if made on and as of such date
(unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date).
(b) No Default or Event of Default. No Default or Event of
Default shall have occurred and be continuing on such date or after giving
effect to the Loan to be made or the Letter of Credit to be issued on such
Borrowing Date.
(c) Notice. The Administrative Agent and, if applicable, the
applicable Issuing Lender or the Swing Line Lender shall have received a notice
of borrowing request or credit extension in accordance with the requirements of
Section 8 hereof.
Each borrowing by the Company hereunder and the issuance of each
Letter of Credit by each Issuing Lender hereunder shall constitute a
representation and warranty by the Company as of the date of such borrowing or
issuance that the conditions in clauses (a) and (b) of this subsection 7.2 have
been satisfied.
SECTION 8. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain
in effect, any Loan or Revolving L/C Obligation remains outstanding and unpaid,
any amount remains available to be drawn under any Letter of Credit or any other
amount is owing to any Lender (other than Unmatured Surviving Obligations), any
Agent or any Issuing Lender hereunder, it shall, and, in the case of the
agreements contained in subsections 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 8.9, 8.10,
8.11, and 8.12 cause each of its Subsidiaries to:
8.1 Financial Statements. Furnish to the Administrative Agent
(with sufficient copies for each Lender):
(a) Audited Annual Financial Statements. As soon as
available, but in any event within 90 days after the end of each fiscal year of
the Company, a copy of the consolidated balance sheet of the Company and its
consolidated Subsidiaries as at the end of such year and the related
consolidated statements of income, shareholders' equity and cash flows for such
year, setting forth in each case in comparative form the figures for the
previous year, reported on without a "going concern" or like qualification or
exception, or qualification arising out of the
63
scope of the audit, by certified public accountants of nationally recognized
standing acceptable to the Required Lenders;
(b) Quarterly Financial Statements. As soon as available, but
in any event not later than 45 days after the end of each of the first three
quarterly periods of each fiscal year of the Company, commencing with the
quarterly period ending September 30, 2006, the unaudited consolidated balance
sheet of the Company and its consolidated Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of income,
shareholders' equity and cash flows of the Company and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year through the end
of such quarter, setting forth in each case in comparative form the figures for
the previous year, certified by a Responsible Officer on behalf of the Company
as being fairly stated in all material respects (subject to normal year-end
audit adjustments); and
(c) Annual Budget. As soon as available, but in any event
within 90 days after the beginning of each fiscal year of the Company to which
such budget relates, an annual operating budget of the Company and its
Subsidiaries, on a consolidated basis, as adopted by the Board of Directors of
the Company;
all financial statements shall be prepared in reasonable detail in accordance
with GAAP in all material respects (provided that interim statements may be
condensed and may exclude detailed footnote disclosure) applied consistently
throughout the periods reflected therein and with prior periods (except as
concurred in by such officer and disclosed therein and except that interim
financial statements need not be restated for changes in accounting principles
which require retroactive application, and operations which have been
discontinued (as such term is used in Statement of Financial Accounting
Standards No. 144) during the current year need not be shown in interim
financial statements as such either for the current period or comparable prior
period). In the event the Company changes its accounting methods because of
changes in GAAP, the Company shall also provide, if necessary for the
determination of compliance with this Section, Sections 5.6, 8.2, 9.1, 9.7, 9.9,
and 9.12, a statement of reconciliation conforming such financial statements to
GAAP.
8.2 Certificates; Other Information. Furnish to the Administrative
Agent (with sufficient copies for each Lender):
(a) concurrently with the delivery of the consolidated
financial statements referred to in subsection 8.1(a), a letter from the
independent certified public accountants reporting on such financial statements
stating that in making the examination necessary to express their opinion on
such financial statements that there is no Default or Event of Default under any
financial covenants hereunder, except as specified in such letter;
(b) concurrently with the delivery of the financial
statements referred to in subsections 8.1(a) and (b), a certificate of a
Responsible Officer on behalf of the Company (i) stating that, to the best of
such officer's knowledge, the Company and its Subsidiaries have observed or
performed all of its covenants and other agreements, and satisfied every
applicable condition, contained in this Agreement and the other Credit Documents
to be observed, performed or satisfied by it, and that such officer has obtained
no knowledge of any Default or
64
Event of Default except as specified in such certificate, (ii) showing in detail
as of the end of the related fiscal period the figures and calculations
supporting such statement in respect of subsection 9.1, clauses (f) and (h) of
subsection 9.2, clause (b) of subsection 9.4, clauses (a), (b) and (k) of
subsection 9.7, subsection 9.8, clause (b) of subsection 9.9, and subsection
9.12, (iii) showing in detail as of the end of the related fiscal period for
purposes of calculating the Applicable Level the ratio of Consolidated Total
Indebtedness to Consolidated EBITDA and the calculations supporting such
statement and if applicable, stating the Applicable Margin payable as a result
of such ratio, (iv) showing in detail as of the end of the related fiscal period
for purposes of calculating the Secured Leverage Ratio the ratio of Consolidated
Total Secured Indebtedness to Consolidated EBITDA and the calculations
supporting such statement, (v) if not specified in the financial statements
delivered pursuant to subsection 8.1, specifying on a consolidated basis the
aggregate amount of interest paid or accrued by the Company and its
Subsidiaries, and the aggregate amount of depreciation, depletion and
amortization charged on the books of the Company and its Subsidiaries, during
such accounting period, (vi) listing all Indebtedness (other than Indebtedness
hereunder) in each case incurred since the date of the previous consolidated
balance sheet of the Company delivered pursuant to subsection 8.1(a) or (b) and
(vii) setting forth in reasonable detail the reconciliation of Consolidated
EBITDA to Consolidated Net Income of the Company;
(c) promptly upon receipt thereof, copies of all final
reports submitted to the Company by independent certified public accountants in
connection with each annual, interim or special audit of the books of the
Company made by such accountants;
(d) promptly, after the furnishing thereof, copies of any
statement or report furnished to holders generally of any debt securities
constituting Material Indebtedness of the Company or any Subsidiary thereof
pursuant to the terms of any indenture, loan or credit or similar agreement and
not otherwise required to be furnished to the Lenders pursuant to Section 8.1 or
any other clause of this Section 8.2 and not otherwise filed with the Securities
and Exchange Commission or any Governmental Authority succeeding to any of its
functions; and
(e) promptly, such additional financial and other information
as any Lender, through the Administrative Agent, may from time to time
reasonably request.
Information required to be delivered pursuant to subsection 8.1 or 8.2 shall be
deemed to have been delivered if such information shall have been posted by the
Administrative Agent on an IntraLinks or similar site to which each Lender has
been granted access. Information delivered pursuant to subsection 8.1 or 8.2 may
also be delivered by electronic communications pursuant to procedures approved
by the Administrative Agent.
8.3 Payment of Other Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all of its obligations and liabilities of whatever nature, except (a) when
the amount or validity thereof is currently being contested in good faith by
appropriate proceedings and reserves in conformity with GAAP with respect
thereto have been provided on the books of the Company or any of its
Subsidiaries, as the case may be and (b) for trade and other accounts payable in
the ordinary course of business in accordance with customary trade terms and
which are not overdue for a period of more than 60 days (or any longer period if
longer payment terms are accepted in the ordinary course of
65
business) or, if overdue for more than 60 days (or such longer period), as to
which a dispute exists and adequate reserves in conformity with GAAP have been
established on the books of the Company and its Subsidiaries, as the case may
be.
8.4 Continuation of Business and Maintenance of Existence and
Material Rights and Privileges. Continue to engage in business of the same
general type as now conducted by it, and preserve, renew and keep in full force
and effect its corporate existence and take all reasonable action to maintain
all rights, privileges, franchises, accreditations, certifications,
authorizations, licenses, permits, approvals and registrations, necessary or
desirable in the normal conduct of its business except for rights, privileges,
franchises, accreditations, certifications, authorizations, licenses, permits,
approvals and registrations the loss of which could reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect, and except as
otherwise permitted by subsections 9.6, 9.7 and 9.8, and 9.9.
8.5 Compliance with All Applicable Laws and Regulations and
Material Contractual Obligations. Comply with all applicable Requirements of Law
(including, without limitation, any and all Environmental Laws, tax, and ERISA
laws) and Contractual Obligations except to the extent that the failure to
comply therewith could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
8.6 Maintenance of Property; Insurance. (a) Keep all property
useful and necessary in its business in good working order and condition
(ordinary wear and tear excepted); and
(b) Maintain with financially sound and reputable insurance
companies insurance on all its property in at least such amounts and with only
such deductibles as are usually maintained by, and against at least such risks
as are usually insured against in the same general area by, companies engaged in
the same or a similar business (in any event including general liability,
contractual liability, personal injury, workers' compensation, employers'
liability, automobile liability and physical damage coverage, all risk property,
business interruption, fidelity and crime insurance); provided that the Company
may implement programs of self insurance in the ordinary course of business and
in accordance with industry standards for a company of similar size so long as
reserves are maintained in accordance with GAAP for the liabilities associated
therewith.
8.7 Maintenance of Books and Records. Keep proper books of record
and account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities which permit financial
statements to be prepared in conformity with GAAP and all Requirements of Law.
8.8 Right of the Lenders to Inspect Property and Books and
Records. Permit representatives of any Lender upon reasonable notice during
business hours and with a Responsible Officer present to visit and inspect any
of its properties and examine and make abstracts from any of its books and
records at any reasonable time and as often as may reasonably be desired upon
reasonable notice, and to discuss the business, operations, properties and
financial and other condition of the Company and its Subsidiaries with officers
and employees thereof, and with their independent certified public accountants.
66
8.9 Notices. Promptly give notice to the Administrative Agent and
each Lender:
(a) of the occurrence of any Default or Event of Default;
(b) of any (i) default or event of default under any instrument or
other agreement, guarantee or collateral document of the Company or any
of its Subsidiaries which default or event of default has not been
waived and could reasonably be expected to have a Material Adverse
Effect, or any other default or event of default under any such
instrument, agreement, guarantee or other collateral document which,
but for the proviso to clause (e) of Section 10, would have constituted
a Default or Event of Default under this Agreement, or (ii) litigation,
investigation or proceeding which may exist at any time between the
Company or any of its Subsidiaries and any Governmental Authority, or
receipt of any notice of any environmental claim or assessment against
the Company or any of its Subsidiaries by any Governmental Authority,
which in any such case could reasonably be expected to have a Material
Adverse Effect;
(c) of any litigation or proceeding affecting the Company or any
of its Subsidiaries (i) in which more than $10,000,000 of the amount
claimed is not covered by insurance or (ii) in which injunctive or
similar relief is sought which if obtained could reasonably be expected
to have a Material Adverse Effect;
(d) of the following events, as soon as practicable after, and in
any event within 30 days after, the Company knows thereof: (i) the
occurrence of any Reportable Event with respect to any Single Employer
Plan which Reportable Event could reasonably be expected to have a
Material Adverse Effect, or (ii) the institution of proceedings or the
taking of any other action by PBGC, the Company or any Commonly
Controlled Entity to terminate, withdraw from or partially withdraw
from any Plan and, with respect to a Multiemployer Plan, the
Reorganization or Insolvency of such Plan, in each of the foregoing
cases which could reasonably be expected to have a Material Adverse
Effect, and in addition to such notice, deliver to the Administrative
Agent and each Lender whichever of the following may be applicable: (A)
a certificate of a Responsible Officer on behalf of the Company setting
forth details as to such Reportable Event and the action that the
Company or such Commonly Controlled Entity proposes to take with
respect thereto, together with a copy of any notice of such Reportable
Event that may be required to be filed with PBGC, or (B) any notice
delivered by PBGC evidencing its intent to institute such proceedings
or any notice to PBGC that such Plan is to be terminated, as the case
may be;
(e) of a failure or anticipated failure by the Company to make
payment when due and payable on the Existing Senior Notes or the
Existing Subordinated Notes; and
(f) of a material adverse change known by the Company or any of
its Subsidiaries in the business, financial condition, assets,
liabilities, properties or results of operations of the Company and its
Subsidiaries taken as a whole.
67
Each notice pursuant to this subsection 8.9 shall be accompanied by a statement
of a Responsible Officer on behalf of the Company setting forth details of the
occurrence referred to therein and (in the cases of clauses (a) through (e))
stating what action the Company proposes to take with respect thereto.
8.10 Subsidiary Guarantors; Pledge of Stock of Additional
Subsidiaries. (a) If any Person shall become a Domestic Subsidiary of the
Company by virtue of a Permitted Acquisition, then, unless all or substantially
all of the assets of such Person are transferred to the Company (by merger of
such Person with and into the Company or otherwise), within 90 days after the
date such Person first became a Domestic Subsidiary of the Company, the Company
shall cause such Person to, and such Person shall, guarantee the Obligations on
a senior secured basis on terms and conditions satisfactory to the
Administrative Agent, and shall execute and deliver to the Administrative Agent
such documents as the Administrative Agent reasonably requires evidencing such
secured guarantee.
(b) Each Credit Party shall pledge the capital stock, or
other Equity Interests and intercompany indebtedness, owned by it (unless such a
pledge is expressly not required by this Agreement or the Pledge Agreements)
pursuant to the Pledge Agreements.
(c) Additional Security. Each Credit Party will cause, (i)
each parcel of owned Real Property having a fair market value of $7,500,000 or
more (except any such parcel as to which the costs of providing a mortgage or
deed of trust are excessive in relation to the benefit afforded to the parties
secured thereby, as determined in the reasonable discretion of the
Administrative Agent) and all of its personal property and (ii) upon the
occurrence of an Event of Default, all other assets and properties of such
Credit Party as are not covered by the original Collateral Documents and as may
be requested by the Collateral Agent or the Required Lenders in their sole
reasonable discretion to be subject at all times to first priority (subject only
to Permitted Liens), perfected and, in the case of owned Real Property, title
insured Liens in favor of the Collateral Agent pursuant to the Collateral
Documents or such other security agreements, pledge agreements, mortgages or
similar collateral documents as the Collateral Agent shall request in its sole
reasonable discretion (collectively, the "Additional Collateral Documents").
In furtherance of the foregoing terms of this clause (c), upon the
acquisition of any owned Real Property referred to in the preceding paragraph by
any Credit Party, if such owned Real Property, in the judgment of the
Administrative Agent, shall not already be subject to a perfected first priority
security interest in favor of the Administrative Agent for the benefit of the
Secured Parties, then such Credit Party shall, at the Company's expense:
(i) within 30 days after such acquisition, furnish to the
Administrative Agent a description of the owned Real Property so
acquired in detail satisfactory to the Administrative Agent;
(ii) within 45 days after such acquisition, cause the
applicable Credit Party to duly execute and deliver to the Collateral
Agent deeds of trust, trust deeds, deeds to secure debt, mortgages,
instruments of accession to the Collateral Documents and other security
and pledge agreements, as specified by and in form and substance
satisfactory to the Administrative Agent, securing payment of all the
Obligations of the
68
applicable Credit Party under the Credit Agreement and constituting
Liens on all such owned Real Properties; provided that the
Administrative Agent may, in its reasonable discretion, extend such
time period from 45 days up to a maximum of 90 days;
(iii) within 60 days after such acquisition, cause the
applicable Credit Party to take whatever action (including the
recording of mortgages, the filing of UCC financing statements, the
giving of notices and the endorsement of notices on title documents) as
may be necessary or advisable in the opinion of the Administrative
Agent to vest in the Collateral Agent (or in any representative of the
Collateral Agent designated by it) valid and subsisting Liens on such
owned Real Property, enforceable against all third parties;
(iv) within 60 days after such acquisition, deliver to the
Administrative Agent, upon the request of the Administrative Agent in
its sole discretion, a signed copy of a favorable opinion, addressed to
the Administrative Agent, the Collateral Agent, and the other Secured
Parties, of counsel for the Credit Parties acceptable to the
Administrative Agent as to the matters contained in clauses (ii) and
(iii) above and as to such other matters as the Administrative Agent
may reasonably request; provided that the Administrative Agent may, in
its reasonable discretion, extend such time period from 45 days up to a
maximum of 90 days;
(v) as promptly as practicable after any acquisition of any
such owned Real Property, deliver, upon the request of the
Administrative Agent in its sole discretion, to the Collateral Agent
with respect to such owned Real Property title reports, surveys and
engineering, soils and other reports, and environmental assessment
reports, each in scope, form and substance satisfactory to the
Administrative Agent, provided, however, that to the extent that any
Credit Party or any of its Subsidiaries shall have otherwise received
any of the foregoing items with respect to such owned Real Property,
such items shall, promptly after the receipt thereof, be delivered to
the Administrative Agent; and
(vi) deliver such proof of organizational authority,
incumbency of officers, opinions of counsel and other documents as is
consistent with those delivered by each Credit Party pursuant to
Section 7.1 on the Amendment Effective Date or as the Administrative
Agent, the Collateral Agent or the Required Lenders shall have
requested.
If, subsequent to the Amendment Effective Date, a Credit Party shall
acquire any intellectual property, securities, instruments, chattel paper or
other personal property required to be delivered to the Collateral Agent as
Collateral hereunder or under any of the Collateral Documents, the Company shall
promptly (and in any event within three Business Days after any Responsible
Officer of any Credit Party acquires knowledge of the same) notify the
Collateral Agent of the same. Each of the Credit Parties shall adhere to the
covenants regarding the location of personal property as set forth in the
Collateral Documents.
(d) Real Property Appraisals. If the Collateral Agent or the
Required Lenders determine that there is a Requirement of Law for them to have
appraisals prepared in respect of the Real Property of the Company constituting
Collateral, the Company shall provide to the Collateral Agent appraisals which
satisfy the applicable requirements set forth in 12
69
C.F.R., Part 34 - Subpart C or any successor or similar statute, rule,
regulation, guideline or order, and which shall be in scope, form and substance,
and from appraisers, reasonably satisfactory to the Required Lenders and shall
be accompanied by a certification of the appraisal firm providing such
appraisals that the appraisals comply with such requirements.
(e) Foreign Subsidiaries Security. Upon the written request
of the Administrative Agent following a Change in Law, which Change in Law is
reasonably determined to be relevant by the Administrative Agent, unless (x)
counsel for the Company reasonably acceptable to the Administrative Agent
provides, within 60 days after such written request of the Administrative Agent,
a written opinion addressed to the Company and the Administrative Agent, in form
and substance mutually satisfactory to the Company and the Administrative Agent,
to the effect that, with respect to any direct Foreign Subsidiary of any Credit
Party that has not already had all of the Equity Interests issued by it pledged
pursuant to the Pledge Agreements, a pledge of more than 65.0% of the total
combined voting power of all classes of capital stock of such Foreign Subsidiary
entitled to vote could reasonably be expected to cause the undistributed
earnings of such Foreign Subsidiary (as determined for United States federal
income tax purposes) to be treated as a deemed dividend to the Company or any
other domestic Affiliate of the Company for U.S. federal income Tax purposes or
otherwise could reasonably be expected to subject the Company or any other
domestic Affiliate of the Company to liability for any additional United States
income Taxes by virtue of Section 956 of the Code or any other applicable
provision of the Code, then (y) that portion of such Foreign Subsidiary's
outstanding capital stock issued by such Foreign Subsidiary, not theretofore
pledged pursuant to the Pledge Agreements, shall be pledged to the Collateral
Agent for the benefit of the Secured Parties pursuant to an accession agreement
to the relevant Pledge Agreement (or another pledge agreement in substantially
identical form, if needed) to the extent that entering into the Pledge Agreement
is permitted by the Laws of the respective foreign jurisdiction and with all
documents delivered pursuant to this Section 8.10(e) to be in form, scope and
substance reasonably satisfactory to the Collateral Agent and the Required
Lenders.
(f) Certain Actions Following Defaults. Upon the request of
the Administrative Agent following the occurrence and during the continuance of
a Default, the Company shall, at the Company's expense:
(i) within 30 days after such request, furnish to the
Administrative Agent a description of the real and personal properties
of the Credit Parties and their respective Subsidiaries in detail
satisfactory to the Administrative Agent;
(ii) within 45 days after such request, duly execute and
deliver, and cause each Credit Party (if it has not already done so) to
duly execute and deliver, to the Administrative Agent deeds of trust,
trust deeds, deeds to secure debt, mortgages, instruments of accession
to the Collateral Documents and other security and pledge agreements,
as specified by and in form and substance satisfactory to the
Administrative Agent (including delivery of all Pledged Collateral (as
defined in the Pledge Agreement)), securing payment of all the
Obligations of the Credit Parties under the Credit Documents and
constituting Liens on all such properties;
70
(iii) within 60 days after such request, take, and cause each
Credit Party to take, whatever action (including the recording of
mortgages, the filing of UCC financing statements, the giving of
notices and the endorsement of notices on title documents) may be
necessary or advisable in the opinion of the Administrative Agent or
the Collateral Agent to vest in the Collateral Agent (or in any
representative of the Administrative Agent designated by it) valid and
subsisting Liens on the properties purported to be subject to the deeds
of trust, trust deeds, deeds to secure debt, mortgages, instruments of
accession to the Collateral Documents and security and pledge
agreements delivered pursuant to this Section 8.10, enforceable against
all third parties in accordance with their terms;
(iv) within 60 days after such request, deliver to the
Administrative Agent and the Collateral Agent, upon the request of the
Administrative Agent or the Collateral Agent in their sole discretion,
a signed copy of a favorable opinion, addressed to the Administrative
Agent, the Collateral Agent, and the other Secured Parties, of counsel
for the Credit Parties acceptable to the Administrative Agent as to the
matters contained in clauses (ii) and (iii) above, and as to such other
matters as the Administrative Agent may reasonably request; and
(v) as promptly as practicable after such request, deliver,
upon the request of the Administrative Agent in its sole discretion, to
the Administrative Agent with respect to each parcel of Real Property
owned or held by the Credit Parties, title reports, surveys and
engineering, soils and other reports, and environmental assessment
reports, each in scope, form and substance satisfactory to the
Administrative Agent, provided, however, that to the extent that any
Credit Party or any of its Subsidiaries shall have otherwise received
any of the foregoing items with respect to such Real Property, such
items shall, promptly after the receipt thereof, be delivered to the
Administrative Agent.
(g) Further Assurances. At any time upon request of the
Administrative Agent, promptly execute and deliver any and all further
instruments and documents and take all such other action as the Administrative
Agent may deem necessary or desirable in obtaining the full benefits of, or (as
applicable) in perfecting and preserving the Liens of, the Collateral Documents
and any such guaranties, deeds of trust, trust deeds, deeds to secure debt,
mortgages, instruments of accession to the Collateral Documents and other
security and pledge agreements.
(h) Time for Taking Certain Actions. The Company agrees that
if no deadline for taking any action required by this Section 8.10 is specified
herein, such action shall be completed as soon as possible, but in no event
later than 30 days after such action is either requested to be taken by the
Collateral Agent or the Required Lenders or required to be taken by the company
or any of its Subsidiaries pursuant to the terms of this Section 8.10.
8.11 Compliance with Environmental Laws. Except, in each case, to
the extent that the failure to do so could not reasonably be expected to have a
Material Adverse Effect, comply, and cause all lessees and other Persons
operating or occupying its properties to comply, with all applicable
Environmental Laws and Environmental Permits; obtain and renew all Environmental
Permits necessary for its operations and properties; and conduct any
investigation, study, sampling and testing, and undertake any cleanup, removal,
remedial or other
71
action necessary to remove and clean up all Materials of Environmental Concern
from any of its properties, in accordance with the requirements of all
Environmental Laws; provided, however, that neither the Company nor any of its
Subsidiaries shall be required to undertake any such cleanup, removal, remedial
or other action to the extent that its obligation to do so is being contested in
good faith and by proper proceedings and appropriate reserves are being
maintained with respect to such circumstances in accordance with GAAP.
8.12 Further Assurances. Promptly upon request by the
Administrative Agent, or any Lender through the Administrative Agent, (i)
correct any material defect or error that may be discovered in any Credit
Document or in the execution, acknowledgment, filing or recordation thereof, and
(ii) do, execute, acknowledge, deliver, record, re-record, file, re-file,
register and re-register any and all such further acts, deeds, certificates,
assurances and other instruments as the Administrative Agent, or any Lender
through the Administrative Agent, may reasonably require from time to time in
order to (A) carry out more effectively the purposes of the Credit Documents,
(B) to the fullest extent permitted by applicable law, subject any Credit
Party's properties, assets, rights or interests to the Liens now or hereafter
intended to be covered by any of the Collateral Documents, (C) perfect and
maintain the validity, effectiveness and priority of any of the Collateral
Documents and any of the Liens intended to be created thereunder and (D) assure,
convey, grant, assign, transfer, preserve, protect and confirm more effectively
unto the Secured Parties the rights granted or now or hereafter intended to be
granted to the Secured Parties under any Credit Document or under any other
instrument executed in connection with any Credit Document to which any Credit
Party is or is to be a party, and if and to the extent necessary, cause each of
its Subsidiaries to do so.
SECTION 9. NEGATIVE COVENANTS
The Company hereby agrees that it shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly so long as the Commitments
remain in effect or any Loan or Revolving L/C Obligation remains outstanding and
unpaid, any amount remains available to be drawn under any Letter of Credit or
any other amount (other than any Unmatured Surviving Obligations) is owing to
any Lender, any Agent or the Issuing Lenders hereunder (it being understood that
each of the permitted exceptions to each covenant in this Section 13 is in
addition to, and not overlapping with, any other of such permitted exceptions in
such covenant except to the extent expressly provided):
9.1 Financial Condition Covenants. (a) Consolidated Total
Indebtedness to Consolidated EBITDA. Permit for any period of four consecutive
fiscal quarters ending during any period listed below the ratio (the "Total
Leverage Ratio") of (i) the difference of (A) Consolidated Total Indebtedness as
of the end of such period minus (B) Cash on Hand, to (ii) Consolidated EBITDA
for such period to be more than the ratio set forth opposite such period below:
72
Fiscal Quarter ended: Ratio
--------------------- -----
December 31, 2006 4.50 to 1
March 31, 2007 - December 31, 2007 4.25 to 1
Thereafter 4.00 to 1
(b) Interest Coverage Ratio. Permit for any period of four
consecutive fiscal quarters ending during any period listed below, the ratio
(the "Interest Coverage Ratio") of (i) Consolidated EBITDA for such period to
(ii) Consolidated Cash Interest Expense to be less than the ratio set forth
opposite such period below:
Fiscal Quarter ended: Ratio
--------------------- -----
December 31, 2006 2.00 to 1
March 31, 2007 - December 31, 2007 2.25 to 1
Thereafter 2.50 to 1
9.2 Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness of the Company in connection with the
Letters of Credit and this Agreement;
(b) (i) Indebtedness of (i) the Company to any Subsidiary;
provided that all such Indebtedness shall be subordinated to the Obligations on
the terms and conditions set forth in Exhibit G, and (ii) any Subsidiary to the
Company or any other Subsidiary to the extent the Indebtedness referred to in
this clause 9.2(b)(ii) evidences a loan or advance permitted under subsection
9.7;
(c) Indebtedness of the Company evidenced by the Existing
Subordinated Notes and by any Existing Senior Notes not tendered to the Company
in the Tender Offer;
(d) Indebtedness in respect of derivative contracts permitted
by subsection 9.11;
(e) Indebtedness consisting of reimbursement obligations
under surety, indemnity, performance, release and appeal bonds and guarantees
thereof and letters of credit required in the ordinary course of business or in
connection with the enforcement of rights or claims of the Company or its
Subsidiaries, in each case to the extent a Letter of Credit supports in whole or
in part the obligations of the Company and its Subsidiaries with respect to such
bonds, guarantees and letters of credit;
(f) Indebtedness of the Company incurred to finance the
acquisition, construction or improvement of any fixed or capital assets,
including capital lease obligations, and any Indebtedness assumed in connection
with the acquisition of any such assets or secured by a Lien on any such assets
prior to the acquisition thereof, and any extension or renewal thereof, provided
that (A) such Indebtedness is incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvement and (B) the
aggregate
73
principal amount of Indebtedness permitted by this clause (f) shall not exceed
$50,000,000.00 at any time outstanding;
(g) Indebtedness owed to a seller in a Permitted Acquisition
or a Permitted Joint Venture or to a buyer in a disposition permitted under
clause (e) or (f) of subsection 9.6 that (i) relates to customary post-closing
adjustments with respect to accounts receivable, accounts payable, net worth
and/or similar items typically subject to post-closing adjustments in similar
transactions, and are outstanding for a period of one (1) year or less following
the creation thereof or (ii) relates to customary indemnities granted to the
seller or buyer in the transaction;
(h) other Indebtedness of the Company incurred in the
ordinary course of business in an aggregate principal amount not to exceed
$50,000,000.00 at any time;
(i) existing Indebtedness of the Company or any of its
Subsidiaries listed on Schedule 9.2 hereto including any extension or renewals
or refinancing thereof, provided the principal amount thereof is not increased;
(j) Unsecured Indebtedness of the Company (i) the principal
of which is not required to be repaid, in whole or in part, before the first
anniversary of the later of the Revolving Credit Maturity Date, the Tranche B
Term Loan Maturity Date or the final maturity date of any Additional Term Loans,
(ii) that is subordinated in right of payment to the Company's indebtedness,
obligations, and liabilities to the Lenders under the Credit Documents pursuant
to payment and subordination provisions satisfactory in form and substance to
the Administrative Agent, (iii) is issued pursuant to credit documents having
covenants and events of default that are no less favorable, including with
respect to rights of acceleration, taken as a whole, to the Company than the
terms hereof or are otherwise reasonably satisfactory in form and substance to
the Administrative Agent, and (iv) if, after giving effect to the incurrence
thereof and the application of the proceeds thereof on a pro forma basis, the
Company is in compliance with section 9.1; and
(k) Contingent Obligations permitted by Section 9.4.
9.3 Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets, income or profits, whether now owned
or hereafter acquired, or sign or file or suffer to exist under the Uniform
Commercial Code of any jurisdiction a financing statement that names the Company
or any of its Subsidiaries as debtor, or assign any accounts or other right to
receive income, except:
(a) Liens for Taxes, assessments or other governmental
charges not yet due and payable or which are being contested in good faith and
by appropriate proceedings if adequate reserves with respect thereto are
maintained on the books of the Company or such Subsidiary, as the case may be,
in accordance with GAAP;
(b) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other like Liens arising in the ordinary course of
business in respect of obligations which do not, individually or in the
aggregate, materially impair the use of any of the assets or properties of the
Company or any Subsidiary or which are not overdue by more than 30 days or which
are being contested in good faith and by appropriate proceedings if adequate
reserves with
74
respect thereto are maintained on the books of the Company or such Subsidiary,
as the case may be, in accordance with GAAP;
(c) pledges or deposits in connection with workmen's
compensation, unemployment insurance and other social security legislation;
(d) easements, right-of-way, zoning and similar restrictions
and other similar encumbrances or title defects incurred, or leases or subleases
or licenses granted to others, in the ordinary course of business, which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or do not
interfere with or adversely affect in any material respect the ordinary conduct
of the business of the Company and its Subsidiaries taken as a whole;
(e) Liens in favor of the Collateral Agent for the benefit of
the Secured Parties pursuant to the Credit Documents and bankers' liens arising
by operation of law;
(f) Liens on assets of entities or Persons which become
Subsidiaries of the Company after the date hereof; provided that such Liens
exist at the time such entities or Persons become Subsidiaries and are not
created in anticipation thereof, it being understood that (1) any such assets
shall be transferred to the Company within 90 days of such acquisition, or (2)
such entity or Person shall become a guarantor of this Agreement in accordance
with Section 9.15 hereof.
(g) Liens on documents of title and the property covered
thereby securing Indebtedness in respect of the Letters of Credit;
(h) Liens in existence on the Amendment Effective Date and
described in Schedule 9.3 and renewals thereof in amounts not to exceed the
amounts listed on such Schedule 9.3;
(i) Liens on assets acquired in connection with a Permitted
Acquisition; provided that such Liens (1) exist at the time of the Permitted
Acquisition in question and are not created in anticipation thereof, and (2) are
not extended to cover other assets of the Company or any of its Subsidiaries;
(j) any leases or licenses of any intellectual property or
intangible assets or entering into any franchise agreement in the ordinary
course of business;
(k) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, licenses, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of
a like nature incurred in the ordinary course of business;
(l) Liens securing Indebtedness owing to the Company or any
Subsidiary under subsection 9.2(b)(ii);
(m) Liens on fixed or capital assets acquired, constructed or
improved by the Company; provided that (i) such security interests secure only
Indebtedness permitted by
75
clause (f) of subsection 9.2, (ii) such security interests and the Indebtedness
secured thereby are incurred prior to or within 90 days after such acquisition
or the completion of such construction or improvement, (iii) the Indebtedness
secured thereby does not exceed the cost of acquiring, constructing or improving
such fixed or capital assets, (iv) such security interests shall not apply to
any other property or assets of the Company or any Subsidiary, and (v) such
security interests shall not interfere with the security and priority of the
Liens granted to the Collateral Agent for the benefit of the Secured Parties;
(n) Liens to secure Indebtedness permitted under Section
9.2(h) in an aggregate principal amount not to exceed $50,000,000.00 at any
time;
(o) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (h) of Section 10;
(p) Liens arising from precautionary UCC filings or similar
filings relating to Operating Leases;
(q) 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; and
(r) Liens on insurance proceeds securing the payment of
financed insurance premiums (provided that such Liens extend only to such
insurance proceeds and not to any other property or assets).
No Liens shall be permitted to exist, directly or indirectly (i) on the
Collateral (as defined in the Pledge Agreements), other than Liens created under
the Pledge Agreements and under clause (a) above, or (ii) except as permitted
under clauses (a), (f), (i) and (j) above, on material trademarks.
9.4 Limitation on Contingent Obligations. Create, incur, assume or
suffer to exist any Contingent Obligation except:
(a) guarantees of obligations to third parties made in the
ordinary course of business in connection with relocation of employees of the
Company or any of its Subsidiaries;
(b) guarantees by the Company and its Subsidiaries incurred
in the ordinary course of business for an aggregate amount not to exceed
$25,000,000.00 at any one time; provided, however, that any such guarantee
granted by a Subsidiary shall only be given in accordance with Section 9.15
hereof;
(c) Contingent Obligations existing on the Amendment
Effective Date and described in Schedule 9.4 including any extensions or
renewals thereof;
(d) Contingent Obligations in respect of derivative contracts
permitted by subsection 9.11;
(e) Contingent Obligations pursuant to the Credit Documents;
76
(f) guarantees by the Company of (i) Indebtedness of its
Subsidiaries permitted under subsection 9.2(g) and (ii) other obligations of
Subsidiaries not prohibited hereunder; and
(g) guarantees by any Subsidiary of Indebtedness and other
obligations of the Company or any Subsidiary; provided that the Indebtedness or
obligations so guaranteed is either permitted pursuant to Section 9.2 or not
prohibited hereunder; and provided further that any such guarantees shall only
be given in accordance with Section 9.15 hereof.
9.5 Prohibition of Fundamental Changes. Enter into any transaction
of acquisition of, or merger or consolidation or amalgamation with, any other
Person (including any Subsidiary or Affiliate of the Company or any of its
Subsidiaries), or transfer all or substantially all of its assets to any
Subsidiary, or liquidate, wind up or dissolve itself (or suffer any liquidation
or dissolution), or engage in any type of business other than of the same
general type now conducted by it and those reasonably related or incidental
thereto, except for (a) any merger of any Subsidiary into (i) the Company
provided the Company is the surviving entity or (ii)(A) any Domestic Subsidiary
or (B) in the case of a Foreign Subsidiary, any other Foreign Subsidiary;
provided, in each case, that if one of the parties has become a guarantor under
this Agreement pursuant to Section 9.15, such entity shall be the surviving
entity, and (b) liquidation or dissolution of any Subsidiary, provided that all
assets of such Subsidiary are transferred to the Company.
9.6 Prohibition on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, tax benefits, receivables and leasehold
interests), whether now owned or hereafter acquired except:
(a) for the sale or other disposition of any tangible
personal property that, in the reasonable judgment of the Company, has become
uneconomic, obsolete or worn out, and which is disposed of in the ordinary
course of business;
(b) for sales or other dispositions of inventory made in the
ordinary course of business and dispositions, assignments or abandonment of
intellectual property in the ordinary course of business;
(c) that any Subsidiary of the Company may sell, lease,
transfer or otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Company or make any investment permitted by
subsection 9.7;
(d) that (i) any Foreign Subsidiary of the Company may sell,
lease, transfer or otherwise dispose of any or all of its assets (upon voluntary
liquidation or by merger, consolidation, transfer of assets, or otherwise) to
the Company or a wholly-owned Subsidiary of the Company, (ii) any Subsidiary of
the Company which is not a Credit Party may sell or otherwise dispose of, or
part control of any or all of, the capital stock of, or other equity interests
in, any Subsidiary of the Company to a wholly-owned Subsidiary of the Company,
and (iii) any Subsidiary of the Company which is not a Credit Party may sell or
otherwise dispose of, or part control of any or all of, the capital stock of, or
other equity interests in, any Subsidiary of the
77
Company to a wholly-owned Subsidiary of the Company which is a Credit Party;
provided that in any case such transfer shall not cause a Domestic Subsidiary to
become a Foreign Subsidiary;
(e) for the sale or other disposition by the Company or any
of its Subsidiaries of any assets described on Schedule 9.6 consummated after
the Amendment Effective Date, provided that such sale or other disposition shall
be made for fair value on an arm's-length basis;
(f) for the sale or other disposition by the Company or any
of its Subsidiaries of other assets consummated after the Amendment Effective
Date, provided that (i) such sale or other disposition shall be made for fair
value on an arm's-length basis, (ii) the consideration for such sale or other
disposition consists of cash and cash equivalents, assets (other than capital
stock and equity interests) which can be employed in the same business as the
Company and its Subsidiaries are engaged in or a related business and promissory
notes and other debt obligations of the purchaser of the assets being sold or
disposed of, provided that not more than 25% of the purchase price payable in
connection with any such sale or disposition shall be in the form of promissory
notes or other debt obligations of the purchaser of such assets (the "Note
Threshold"); and (iii) the Net Proceeds from such sale or other disposition
shall be applied in accordance with the provisions of subsection 5.6;
(g) any leases or licenses of property in the ordinary course
of business; and
(h) any leases or licenses of any intellectual property or
intangible assets or entering into any franchise agreement in the ordinary
course of business.
The Company and its Subsidiaries shall not convey, sell, lease, assign, transfer
or otherwise dispose of any material trademarks except as permitted by clauses
(e), (g) and (h) above.
9.7 Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of, or any assets
constituting a business unit of, or make or maintain any other investment in,
any Person, except:
(a) (i) loans or advances in respect of intercompany accounts
attributable to the operation of the Company's cash management system, (ii)
loans or advances by the Company to any Subsidiary for working capital needs so
long as such loans or advances constitute Indebtedness of the primary obligor
that is not subordinate to any other Indebtedness of such obligor and, if
evidenced by a promissory note, instrument or other writing, shall be pledged to
the Collateral Agent as a Pledged Note, and provided that the aggregate
outstanding principal amount of all such loans, when aggregated with the
aggregate amount of all Investments made by the Company in its Subsidiaries
pursuant to subsection (b)(i) below, shall not exceed five percent (5%) of the
total assets of the Company and its Subsidiaries on a consolidated basis, and
(iii) loans or advances to the Company which are subordinated to the Obligations
on the terms and conditions set forth in Exhibit F;
(b) (i) Investments by the Company in Subsidiaries of the
Company that are not Credit Parties other than any Foreign Subsidiary; provided
that at all times the aggregate
78
amount of all such Investments, when taken together with the aggregate amount of
all outstanding loans and advances made pursuant to clause (a) above, shall not
exceed five percent (5%) of the total assets of the Company and its Subsidiaries
on a consolidated basis, and (ii) Investments by the Company in Foreign
Subsidiaries of the Company, provided that the aggregate amount of all such
investments (determined without regard to any write-offs or write-downs thereof)
shall not exceed $50,000,000,00 at any time outstanding;
(c) Investments by the Company or any of its Subsidiaries in
Subsidiaries of the Company which are Credit Parties;
(d) any Domestic Subsidiary of the Company which is not a
Credit Party may make investments in the Company or any Domestic Subsidiary (by
way of capital contribution or otherwise), and any Foreign Subsidiary of the
Company may make investments in the Company or any other Foreign Subsidiary (by
way of capital contribution or otherwise);
(e) the Company may invest in, acquire and hold cash and Cash
Equivalents;
(f) the Company or any of its Subsidiaries may make travel
and entertainment advances and relocation loans in the ordinary course of
business to officers, employees and agents of the Company or any such
Subsidiary;
(g) the Company or any of its Subsidiaries may make payroll
advances in the ordinary course of business;
(h) the Company or any of its Subsidiaries may acquire and
hold receivables owing to it, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade terms
(provided that nothing in this clause (h) shall prevent the Company or any
Subsidiary from offering such concessionary trade terms, or from receiving such
investments in connection with the bankruptcy or reorganization of their
respective suppliers or customers or the settlement of disputes with such
customers or suppliers arising in the ordinary course of business, as management
deems reasonable in the circumstances);
(i) the Company and its Subsidiaries may make investments in
connection with asset sales permitted by subsection 9.6 or to which the Required
Lenders consent;
(j) investments, loans and advances of the Company existing
on the Amendment Effective Date and described in Schedule 9.7;
(k) so long as no Default or Event of Default has occurred
and is continuing or would exist after giving effect to such transaction, the
Company and its Subsidiaries may make Permitted Acquisitions and investments in
Permitted Joint Ventures, provided that (1) after giving effect thereto the
Company shall be in compliance with the covenants set forth in Section 9.1
(calculated as of the last day of the fiscal quarter ending immediately
preceding the effective date of such Permitted Acquisition or other investment
for which the relevant financial information is available on a pro forma basis
to give effect to such Permitted Acquisition or investment as if it had been
made on the first day of the Measurement
79
Period ending on the last day of such fiscal quarter) and (2) either (x) the
Company shall have a Secured Leverage Ratio of less than 2.5 to 1 (calculated as
of the last day of the fiscal quarter ending immediately preceding the effective
date of such Permitted Acquisition or other investment for which the relevant
financial information is available on a pro forma basis to give effect to such
Permitted Acquisition or investment as if it had been made on the first day of
the Measurement Period ending on the last day of such fiscal quarter) or (y) the
aggregate amount of all such Permitted Acquisitions and the investments made
since the Closing Date at any time when the conditions set forth in clause
(2)(x) were not satisfied shall not exceed $200,000,000.00; and
(l) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business.
9.8 Capital Expenditures. Make or commit to make Capital
Expenditures in any fiscal year exceeding $35,000,000.00. Capital Expenditures
permitted to be made during a fiscal year pursuant to the terms hereof, if not
expended in the year for which it is permitted, may be carried over for
expenditure in the next following year and any amounts so carried over shall be
deemed to be the first amounts expended in such following year, provided that,
subject to compliance with Section 5.6, Capital Expenditures in excess of the
amount set forth above may be made with Net Proceeds of Asset Sales,
Condemnation Awards, and Insurance Proceeds.
9.9 Limitation on Dividends. Declare any dividends on any shares
of any class of stock, or make any payment on account of, or set apart assets
for a sinking or other analogous fund for, the purchase, redemption, retirement
or other acquisition of any shares of any class of stock, whether now or
hereafter outstanding, or make any other distribution in respect thereof, either
directly or indirectly, whether in cash or property or in obligations of the
Company or any of its Subsidiaries (all of the foregoing being referred to
herein as "Restricted Payments"); except that:
(a) Subsidiaries may pay dividends directly or indirectly to
the Company or to Domestic Subsidiaries which are directly or indirectly
wholly-owned by the Company, and Foreign Subsidiaries may pay dividends directly
or indirectly to Foreign Subsidiaries which are directly or indirectly
wholly-owned by the Company;
(b) so long as no Default or Event of Default has occurred or
would occur after giving effect to such declaration or payment, the Company may,
from time to time, repurchase stock from management employees of the Company and
its Subsidiaries in an aggregate amount not to exceed $10,000,000.00 (the
"Dividend Limit");
(c) the Company and its Subsidiaries may pay or make
dividends or distributions to any holder of its Capital Stock in the form of
additional shares of capital stock of the same class and type; and
(d) so long as no Default or Event of Default has occurred or
would occur after giving effect to such declaration or payment, the Company may
declare and pay cash dividends or distributions to any holders of its Equity
Interests (1) in an aggregate amount not to
80
exceed $25,000,000.00 during any fiscal year, provided that, after giving effect
thereto the Company (x) shall be in compliance with the covenants set forth in
Section 9.1 and (y) shall have a Secured Leverage Ratio of less than 2.5 to 1,
in each case calculated on a pro forma basis as of the last day of the fiscal
quarter ending immediately preceding the effective date of such cash dividend or
distribution for which the relevant financial information has been delivered to
the lenders pursuant to Section 8.1 or 8.2, as applicable, giving effect to such
cash dividend or distribution as if it had been made on the first day of the
Measurement Period ending on the last day of such fiscal quarter or (2) during
any fiscal year in which the conditions set forth in clause (1) were not
satisfied, in an aggregate amount which, when added to any amounts paid under
clause (iv) of Section 9.12 during such year, shall not to exceed
$10,000,000.00.
9.10 Transactions with Affiliates. Enter into after the date
hereof any transaction, including, without limitation, any purchase, sale, lease
or exchange of property or the rendering of any service, with any Affiliate
except (a) for transactions which are otherwise permitted under this Agreement
and which are in the ordinary course of the Company's or a Subsidiary's business
and which are upon fair and reasonable terms no less favorable to the Company or
such Subsidiary than it would obtain in a hypothetical comparable arm's length
transaction with a Person not an Affiliate, or (b) as permitted under
subsections 9.2(b) and (i), subsection 9.3(l), subsections 9.4(a), (c), (f) and
(g), Section 9.5, subsection 9.6(c) and (d), Section 9.7 and Section 9.9, (c)
transactions among the Company and its wholly-owned Subsidiaries not prohibited
under this Agreement or (d) as set forth on Schedule 9.10; provided that nothing
in this subsection 9.10 shall prohibit the Company or its Subsidiaries from
engaging in the following transactions: (x) the performance of the Company's or
any Subsidiary's obligations under any employment contract, collective
bargaining agreement, employee benefit plan, related trust agreement or any
other similar arrangement heretofore or hereafter entered into in the ordinary
course of business, (y) the payment of compensation to employees, officers,
directors or consultants in the ordinary course of business or (z) the
maintenance of benefit programs or arrangements for employees, officers or
directors, including, without limitation, vacation plans, health and life
insurance plans, deferred compensation plans, and retirement or savings plans
and similar plans, in each case, in the ordinary course of business.
9.11 Derivative Contracts. Enter into any foreign currency
exchange contracts, interest rate swap arrangements or other derivative
contracts or transactions, other than such contracts, arrangements or
transactions entered into in the ordinary course of business for the purpose of
hedging (a) any asset or obligation of the Company or any of its Subsidiaries
with respect to their operations outside of the United States, (b) the interest
rate or currency exposure of the Company or any of its Subsidiaries, and (c) the
purchase requirements of the Company or any of its Subsidiaries with respect to
raw materials and inventory.
9.12 Other Indebtedness. (i) Make any payment in violation of any
of the provisions of the Existing Subordinated Notes; (ii) waive or otherwise
relinquish any of its rights or causes of action arising under or arising out of
the terms of the Existing Subordinated Notes or consent to any amendment,
modification or supplement to the terms of the Existing Subordinated Notes that
is adverse to the Lenders except with the consent of the Required Lenders; (iii)
make any optional payment or prepayment (including payments as a result of
acceleration thereof) on or redeem or otherwise acquire, purchase or defease the
Existing Subordinated Notes, unless, after giving effect to such optional
payment or prepayment, the Secured Leverage Ratio is less
81
than 2.5 to 1; or (iv) in the event that the Company does not comply with the
requirements of clause (iii) of this Section 9.12 during any fiscal year, make
any optional payment or prepayment (including payments as a result of
acceleration thereof) on or redeem or otherwise acquire, purchase or defease the
Existing Subordinated Notes, in an aggregate amount which, when added to any
amounts paid under Section 9.9(d)(2) during such fiscal year, does not exceed
$10,000,000.00.
9.13 Fiscal Year. Permit the fiscal year of the Company to end on
a day other than December 31, unless the Company shall have given at least 45
days prior written notice to the Administrative Agent and the Company and the
Required Lenders have agreed on appropriate revisions to subsection 9.8 to
reflect such a change in fiscal year.
9.14 Amendment of Organizational Documents. Amend any of its or
any of its Subsidiary's Organization Documents in a manner materially adverse to
the Administrative Agent or the Lenders, without the prior written consent of
the Required Lenders.
9.15 Limitation on Guarantees. The Company will not permit any
Subsidiary to, directly, or indirectly, incur or assume any guarantee of any
Indebtedness of any other entity, unless contemporaneously therewith, effective
provision is made to guarantee the Obligations equally and ratably with (or on a
senior secured basis to, if applicable) such other Indebtedness for so long as
such Other Indebtedness is so guaranteed. Any guarantee required to be given
under this Section 9.15 shall be pursuant to a guaranty agreement in form and
substance satisfactory to the Administrative Agent.
9.16 Independence of Covenants. All covenants contained herein
shall be given independent effect so that if a particular action or condition is
not permitted by any of such covenants, the fact that such action or condition
would be permitted by an exception to, or otherwise be within the limitations
of, another covenant shall not avoid the occurrence of a Default if such action
is taken or condition exists.
SECTION 10. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) The Company shall fail to (i) pay any principal of any
Loan when due in accordance with the terms hereof or thereof or to reimburse the
Issuing Lender in accordance with subsection 4.6 or (ii) pay any interest on any
Loan or any other amount payable hereunder within three Business Days after any
such interest or other amount becomes due in accordance with the terms thereof
or hereof; or
(b) Any representation or warranty made or deemed made by any
Credit Party in any Credit Document or which is contained in any certificate,
guarantee, document or financial or other statement furnished under or in
connection with this Agreement shall prove to have been incorrect in any
material respect on or as of the date made or deemed made; or
(c) The Company shall default in the observance or
performance of any agreement contained in Sections 8.1, 8.2, 8.8, 8.9, 8.10, or
9 of this Agreement, provided that, with respect to any default in the
observance or performance of any agreement contained in
82
Sections 8.2(c) through (e), 8.8, and 8.9 (b) through (f), such default shall
continue unremedied for a period of 10 days; or
(d) Any Credit Party shall default in the observance or
performance of any other term, covenant, or agreement contained in any Credit
Document, and such default shall continue unremedied for a period of 30 days; or
(e) The Company or any of its Subsidiaries shall (A) default
in any payment of principal of or interest on any Indebtedness (other than the
Loans, the Revolving L/C Obligations and any intercompany debt) or in the
payment of any Contingent Obligation, beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness or
Contingent Obligation was created; or (B) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or Contingent Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
or beneficiary or beneficiaries of such Contingent Obligation (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to become due
prior to its stated maturity, any applicable grace period having expired, or
such Contingent Obligation to become payable, any applicable grace period having
expired, provided that the aggregate principal amount of all such Indebtedness
and Contingent Obligations which would then become due or payable as described
in this Section 10(e) would equal or exceed $20,000,000.00; or
(f) (i) the Company or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its assets, or the Company or any
such Subsidiary shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against the Company or any such
Subsidiary any case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order for relief or any
such adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced against the
Company or any such Subsidiary any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof; or (iv)
the Company or any such Subsidiary shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the acts set
forth in clause (i), (ii), or (iii) above; or (v) the Company or any such
Subsidiary shall generally not, or shall be unable to, or shall admit in writing
its inability to, pay its debts as they become due; or
(g) (i) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to any
Single Employer Plan, (ii) a
83
Reportable Event (other than a Reportable Event with respect to which the 30-day
notice requirement under Section 4043 of ERISA has been waived) shall occur with
respect to, or proceedings to have a trustee appointed shall commence with
respect to, or a trustee shall be appointed to administer or to terminate, any
Single Employer Plan, which Reportable Event or institution of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required Lenders,
likely to result in the termination of such Plan for purposes of Title IV of
ERISA, and, in the case of a Reportable Event, such Reportable Event shall
continue unremedied for ten days after notice of such Reportable Event pursuant
to Section 4043(a), (c) or (d) of ERISA is given and, in the case of the
institution of proceedings, such proceedings shall continue for ten days after
commencement thereof or (iii) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA; and in each case in clauses (i) through (iii)
above, such event or condition, together with all other such events or
conditions relating to such Single Employer Plans, if any, could reasonably be
expected to subject the Company or any of its Subsidiaries to any tax, penalty
or other liabilities which, individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against
the Company or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance or indemnity) of $20,000,000.00 or more
to the extent that all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within the time required by the
terms of such judgment; or
(i) Except as contemplated by this Agreement, any guarantee
of this Agreement given pursuant to the terms hereof shall cease, for any
reason, and in any material respect, to be in full force and effect or any
Credit Party shall so assert in writing; or
(j) Except as contemplated by this Agreement or as provided
in subsection 12.1, any Credit Party shall breach any covenant or agreement
contained in any Collateral Document with the effect that such Collateral
Document shall cease to be in full force and effect or the Lien granted thereby
shall cease to be a first priority Lien or any Collateral Document shall assert
in writing that any Collateral Document is no longer in full force and or effect
or the Lien granted thereby is no longer a first priority Lien; or
(k) A Change of Control shall occur;
then, and in any such event, (a) if such event is an Event of Default with
respect to the Company specified in clause (i) or (ii) of paragraph (f) above,
automatically (i) the Commitments and the Issuing Lender's obligation to issue
Letters of Credit shall immediately terminate and the Loans hereunder (with
accrued interest thereon) and all other amounts owing under this Agreement and
the Loans shall immediately become due and payable, (ii) all obligations of the
Company in respect of the Letters of Credit, although contingent and unmatured,
shall become immediately due and payable and the Issuing Lender's obligation to
issue Letters of Credit shall immediately terminate, and (iii) and the
obligation of the Company to Cash Collateralize the Revolving L/C Obligations
shall automatically become effective; and (b) if such event is any other Event
of Default, so long as any such Event of Default shall be continuing, either or
both of the following actions may be taken: (i) with the consent of the Required
Lenders, the Administrative Agent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice to
84
the Company declare the Commitments and the Issuing Lender's obligation to issue
Letters of Credit to be terminated forthwith, whereupon the Commitments and such
obligation shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice of default to the
Company (A) declare all or a portion of the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement and the Loans
to be due and payable forthwith, whereupon the same shall immediately become due
and payable, and (B) declare all or a portion of the obligations of the Company
in respect of the Letters of Credit, although contingent and unmatured, to be
due and payable forthwith, whereupon the same shall immediately become due and
payable and/or demand that the Company discharge any or all of the obligations
supported by the Letters of Credit by paying or prepaying any amount due or to
become due in respect of such obligations. All payments under this Section 10 on
account of undrawn Letters of Credit shall be made by the Company directly to a
cash collateral account established by the Administrative Agent for such purpose
for application to the Company's reimbursement obligations under subsection 4.6
as drafts are presented under the Letters of Credit, with the balance, if any,
to be applied to the Company's obligations under this Agreement and the Loans as
the Administrative Agent shall determine with the approval of the Required
Lenders. Except as expressly provided above in this Section 10, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 11. THE SYNDICATION AGENTS, THE DOCUMENTATION AGENTS, THE
ADMINISTRATIVE AGENT; THE ISSUING LENDER
11.1 Appointment. Each Lender hereby irrevocably designates and
appoints J.P. Morgan Securities Inc., UBS Securities LLC, and Credit Suisse
Securities (USA) LLC as the Syndication Agents of such Lender under this
Agreement and acknowledges that the Syndication Agents, in their respective
capacity as such, shall have no duties or liabilities under the Credit
Documents. Each Lender hereby irrevocably designates and appoints JPMCB as the
Administrative Agent under this Agreement and irrevocably authorizes JPMCB as
Administrative Agent for such Lender to take such action on its behalf under the
provisions of the Credit Documents and to exercise such powers and perform such
duties as are expressly delegated to the Administrative Agent by the terms of
the Credit Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, none of the Agents shall have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into the Credit Documents or otherwise
exist against any Agent.
11.2 Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement and each of the other Credit Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. Without limiting the
foregoing, the Administrative Agent may appoint any of its affiliates as its
agent to perform the functions of the Administrative Agent hereunder relating to
the advancing of funds to the Company and distribution of funds to the Lenders
and to perform such other related functions of the Administrative Agent
hereunder as are reasonably incidental to such functions. None of the Agents
shall be responsible for the negligence or misconduct of
85
any agents or attorneys-in-fact selected by it with reasonable care, except as
otherwise provided in subsection 11.3.
11.3 Exculpatory Provisions. Neither any Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact, Affiliates or
Subsidiaries shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with the Credit Documents
(except for its or such Person's own gross negligence or willful misconduct to
the extent determined by a final, nonappealable judgment of a court of competent
jurisdiction), or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any Credit Party or
any officer thereof contained in the Credit Documents or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Agents under or in connection with, the Credit Documents or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
the Credit Documents or for any failure of any Credit Party to perform its
obligations thereunder. None of the Agents shall be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, any Credit Document, or to
inspect the properties, books or records of any Credit Party.
11.4 Reliance by Syndication Agents or Administrative Agent. Any
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any Note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, electronic message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Company), independent accountants and other experts selected by any Agent. The
Agents may deem and treat the payee of any Note as the owner thereof for all
purposes unless a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Agents. The Agents shall be fully justified in
failing or refusing to take any action under any Credit Document unless it shall
first receive such advice or concurrence of the Required Lenders (or, where
unanimous consent of the Lenders is expressly required hereunder, such Lenders)
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. The Agents shall
in all cases be fully protected in acting, or in refraining from acting, under
any Credit Document in accordance with a request of the Required Lenders, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Notes.
11.5 Notice of Default. None of the Agents shall be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless such Agent has received written notice from a Lender or the
Company referring to this Agreement, describing such Default or Event of Default
and stating that such notice is a "notice of default". In the event that any
Agent receives such a notice, such Agent shall promptly give notice thereof to
the Lenders. The Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be directed by the Required Lenders;
provided that (i) the Administrative Agent shall not be required to take any
action that exposes the Administrative Agent to liability or that is contrary to
this Agreement or applicable law and (ii) unless and until the Administrative
Agent shall have received such directions, the Administrative Agent may (but
86
shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem advisable in
the best interests of the Lenders.
11.6 Non-Reliance on Syndication Agents, Administrative Agent and
Other Lenders. Each Lender expressly acknowledges that none of the Agents nor
any of their respective officers, directors, employees, agents,
attorneys-in-fact, Subsidiaries or Affiliates has made any representations or
warranties to it and that no act by any Agent hereafter taken, including any
review of the affairs of the Credit Parties, shall be deemed to constitute any
representation or warranty by such Agent to any Lender. Each Lender represents
to each Agent that it has, independently and without reliance upon any Agent or
any other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Credit Parties and made its own decision to make its Loans hereunder, issue and
participate in the Letters of Credit and enter into this Agreement. Each Lender
also represents that it will, independently and without reliance upon any Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under the Credit
Documents, and to make such investigation as it deems necessary to inform itself
as to the business, operations, property, financial and other condition and
creditworthiness of the Credit Parties. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, none of the Agents shall have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, financial condition, assets, liabilities, net assets,
properties, results of operations, value, prospects and other condition or
creditworthiness of the Credit Parties which may come into the possession of any
Agent or any of its officers, directors, employees, agents, attorneys-in-fact,
Affiliates or Subsidiaries.
11.7 Indemnification. The Lenders severally agree to indemnify
each of the Agents in its capacity as such (to the extent not reimbursed by the
Credit Parties and without limiting the obligation of the Credit Parties to do
so), ratably according to the respective amounts of their respective Commitments
(or, to the extent such Commitments have been terminated, according to the
respective outstanding principal amounts of the Loans and obligations, whether
as Issuing Lender or a Participating Lender, with respect to Letters of Credit),
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including without limitation at any time
following the payment of the Loans) be imposed on, incurred by or asserted
against any Agent in any way relating to or arising out of the Credit Documents
or any documents contemplated by or referred to herein or the transactions
contemplated hereby or any action taken or omitted by any Agent under or in
connection with any of the foregoing; provided that (a) no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from any Agent's gross negligence or willful misconduct as
determined by a final non-appealable judgment of a court of competent
jurisdiction and (b) Lenders holding only Tranche B Term Loans shall not be
required to so indemnify in respect of matters relating to Letters of Credit
(with such indemnity being provided solely by Lenders holding Revolving Credit
Commitments). The agreements contained in this subsection 11.7 shall survive the
payment of all amounts payable hereunder.
87
11.8 Syndication Agent and Administrative Agent in its Individual
Capacity. The Agents and their Affiliates and Subsidiaries may make loans to,
accept deposits from and generally engage in any kind of business with the
Credit Parties as though each Agent were not each Agent hereunder. With respect
to its Loans made or renewed by it and any Letter of Credit issued by or
participated in by it, each of the Agents shall have the same rights and powers,
duties and liabilities under the Credit Documents as any Lender and may exercise
the same as though it were not an Agent and the terms "Lender" and "Lenders"
shall include each Agent in its individual capacities.
11.9 Successor Syndication Agent or Administrative Agent. Any
Agent may resign as Agent upon 30 days' notice to the Lenders. The resignation
of any Syndication Agent shall be effective without any further act or deed on
the part of the former Syndication Agent. If the Administrative Agent shall
resign as Administrative Agent under the Credit Documents, then the Required
Lenders shall appoint from among the Lenders a successor agent for the Lenders
which successor agent shall be approved by the Company (which approval shall not
be unreasonably withheld) whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent and the term
"Administrative Agent" shall mean such successor agent effective upon its
appointment, and the former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Section 11 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Agent under the Credit Documents.
11.10 Issuing Lender as Issuer of Letters of Credit. Each Lender
and each Syndication Agent hereby acknowledges that the provisions of this
Section 11 shall apply to the Issuing Lender, in its capacity as issuer of any
Letter of Credit, in the same manner as such provisions are expressly stated to
apply to the Administrative Agent.
SECTION 12. MISCELLANEOUS
12.1 Amendments and Waivers. No Credit Document nor any terms
thereof may be amended, supplemented, waived or modified except in accordance
with the provisions of this subsection 12.1. With the written consent of the
Required Lenders, the Administrative Agent and the respective Credit Parties
may, from time to time, enter into written amendments, supplements or
modifications to any Credit Document for the purpose of adding any provisions to
such Credit Document to which they are parties or changing in any manner the
rights of the Lenders or of any such Credit Party or any other Person thereunder
or waiving, on such terms and conditions as the Administrative Agent may specify
in such instrument, any of the requirements of any such Credit Document or any
Default or Event of Default and its consequences; provided, however, that:
(a) no such waiver and no such amendment, supplement or
modification shall (i) extend the scheduled maturity of any Loan or scheduled
installment of any Loan or extend the expiry date of any Letter of Credit beyond
the Revolving Credit Termination Date, or reduce the rate or extend the time of
payment of interest thereon, or change the method of calculating interest
thereon, or reduce the amount or extend the time of payment of any fee
88
payable to the Lenders hereunder, or reduce the principal amount thereof, or
increase the amount of any Commitment of any Lender, without the consent of each
Lender directly affected thereby, or (ii) amend, modify or waive any provision
of this subsection 12.1 or the definitions of Required Lenders, or alter the
manner in which payments or prepayments of principal, interest, or other amounts
hereunder shall be applied as among the Lenders in each respective Facility (in
which case, the written consent of each Lender to the respective Facility shall
be required), or change the percentage of the Lenders required to waive a
condition precedent under Section 7.1 or consent to the assignment or transfer
by any Credit Party of any of its rights and obligations under any Credit
Document, or amend, modify or change all or any substantial part of the
Collateral or pledged assets granted hereunder, or amend, modify or change the
guarantee obligations of any material guarantor provided (or the requirement
that they be so provided) hereunder, in each case, without the written consent
of each Lender (unless otherwise specified in clause (ii) of this paragraph);
and
(b) no such waiver and no such amendment, supplement or
modification shall amend, modify or waive any provision of Section 11 without
the written consent of the then Agents and the Issuing Lender.
Any such waiver and any such amendment, supplement or modification described in
this subsection 12.1 shall apply equally to each of the Lenders and shall be
binding upon each Credit Party, the Lenders, each Agent and all future holders
of the Loans. No waiver, amendment, supplement or modification of any Letter of
Credit shall extend the expiry date thereof without the written consent of the
Participating Lenders. In the case of any waiver, the Company, the Lenders and
each Agent shall be restored to their former position and rights hereunder and
under the outstanding Loans, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.
12.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three Business Days
after being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when sent, confirmation of receipt received, addressed as follows in the
case of each Credit Party and the Administrative Agent, and as set forth on its
signature page hereto in the case of any Lender, or to such other address as may
be hereafter notified by the respective parties hereto and any future holders of
the Loans:
The Company: B/E Aerospace, Inc.
1400 Corporate Center Way
Wellington, FL 33414
Attn: Thomas P. McCaffrey, CFO
(or)
Edmund Moriarty, General Counsel
Telecopy: (561) 791-3966
With a copy to: Shearman & Sterling LLP
599 Lexington Avenue
89
New York, NY 10022
Attn: Lona Nallengara
Telecopy: (212) 848-7830
The Administrative Agent: JPMorgan Chase Bank
1 Chase Manhattan Plaza
8th Floor
New York, NY 10081
Attn: Frank Giacalone, Loan and
Agency Services Group
Fax: 212-552-5650
Tel: 212-552-5949
and
JPMorgan Chase Bank
270 Park Avenue
New York, NY 10017
Attn: Vilma Francis
Fax: 212-270-4016
Tel: 212-270-5484
and
JPMorgan Chase Bank, N.A.
1111 Fannin Street, 10th Floor
Houston , TX 77002
Attn: Michael Chau
Fax: 713-750-2938
Tel: 713-750- 7913
The Issuing Lender JPMorgan Chase Bank
4 Metrotech Center
8th Floor
Brooklyn, NY 11245
Attn: Rebecca McNally
Fax: 718-552-6537
Tel: 718-242-3468
With a copy of any notice Fried, Frank, Harris, Shriver &
sent to the Administrative Jacobson LLP
Agent or to the Issuing One New York Plaza
Lender to: New York, NY 10004-1980
Attn: Sherri Snelson, Esq.
Telecopy: (212) 859-4000
90
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsections 4.3, 4.7, 5.1, 5.3, 5.4, 5.5, and 5.6
shall not be effective until received and provided, further that the failure to
provide the copies of notices to the Company provided for in this subsection
12.2 shall not result in any liability to any Agent or any Lender.
12.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any Agent or any Lender, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies, powers
and privileges provided by law.
12.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement, the Letters of Credit and the
Loans.
12.5 Payment of Expenses. The Company agrees:
(a) to pay or reimburse the Administrative Agent and the
Initial Lenders for all of their reasonable out-of-pocket costs and expenses
incurred in connection with the development, preparation, execution, delivery,
administration, amendment, waiver and modification of, the Credit Documents and
any other documents prepared in connection herewith, and the consummation of the
transactions contemplated hereby and thereby and the syndication of the Loans
under this Agreement, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent and one counsel to the
Initial Lenders, subject to receipt of supporting documentation in reasonable
detail;
(b) to pay or reimburse each Lender and each Agent for all
their costs and expenses incurred in connection with, and to pay, indemnify, and
hold each Agent and each Lender harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever arising out of
or in connection with, the enforcement or preservation of any rights (including
in any workout proceedings) under any Credit Document and any such other
documents, including, without limitation, reasonable out-of-pocket fees and
disbursements of counsel to each Agent and each Lender (including, but not
limited to, reasonable fees and expenses of one counsel to the Initial Lenders
and one local counsel in each appropriate jurisdiction and expenses incurred in
connection with travel, courier, reproduction, printing and delivery expenses),
incurred in connection with the foregoing and in connection with advising the
Administrative Agent with respect to its rights and responsibilities under this
Agreement and the documentation relating thereto, subject to receipt of
supporting documentation in reasonable detail (it being agreed that the Agents
and the Lenders shall have the right to employ separate counsel and the Company
shall bear the reasonable out-of-pocket fees, costs, and expenses of such
separate counsel if (i) the use of the selected counsel would present such
counsel with a conflict of interest or (ii) the actual or potential defendants
in, or targets of, any such action include both the Company and the Agents
and/or a Lender, and such Agent or Lender shall have
91
reasonably concluded that there may be legal defenses available to it that are
different from or additional to those available to the Company or any other such
Person);
(c) to pay, indemnify, and to hold each Agent and each Lender
harmless from, any and all recording and filing fees and any and all liabilities
with respect thereto, or resulting from any delay in paying such recording and
filing fees, if any, which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, any Credit Document and any
such other documents; and
(d) to pay, indemnify, and hold each Agent and each Lender
(each, an "Indemnified Person") and their respective officers, directors,
employees and agents (the officers, directors, employees and agents of any
Indemnified Person are such Indemnified Person's "Related Parties") harmless
from and against any and all other actual out-of-pocket liabilities,
obligations, losses, damages (including punitive damages), penalties, fines,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever (including, without limitation, reasonable experts' and
consultants' fees and reasonable fees and disbursements of counsel and third
party claims for personal injury or real or personal property damage) which may
be incurred by or asserted against the any Agent or the Lenders (x) arising out
of or in connection with any investigation, litigation or proceeding related to
this Agreement, the other Credit Documents, the proceeds of the Loans, or any of
the other transactions contemplated hereby or thereby, whether or not any Agent
or any of the Lenders is a party thereto, (y) with respect to any environmental
matters, any environmental compliance expenses and remediation expenses in
connection with the presence, suspected presence, release or suspected release
of any Materials of Environmental Concern in or into the air, soil, groundwater,
surface water or improvements at, on, about, under, or within the Properties, or
any portion thereof, or elsewhere in connection with the transportation of
Materials of Environmental Concern to or from the Properties, or (z) without
limiting the generality of the foregoing, by reason of or in connection with the
execution and delivery or transfer of, or payment or failure to make payments
under, Letters of Credit (it being agreed that nothing in this subsection
12.5(d)(z) is intended to limit the Company's obligations pursuant to subsection
4.6);
(all the foregoing, collectively, the "indemnified liabilities"), provided that
the Company shall have no obligation hereunder with respect to indemnified
liabilities of any Indemnified Person or its Related Parties arising from the
gross negligence or willful misconduct of such Indemnified Person or its Related
Parties as determined by a final, non-appealable judgment of a court of
competent jurisdiction. The agreements in this subsection 12.5 shall survive
repayment of the Loans and all other amounts payable hereunder.
12.6 Successors and Assigns; Participations; Purchasing Lenders.
(a) This Agreement shall be binding upon and inure to the benefit of the
Company, the Lenders, the Agents, all future holders of the Loans, and their
respective successors and assigns, except that the Company may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
92
(b) Any Lender other than any Conduit Lender may, in the
ordinary course of its business and in accordance with applicable law, at any
time sell to one or more banks or other financial institutions or Lender
Affiliates ("Participants") participating interests in any Loan owing to such
Lender, any participating interest of such Lender in the Letters of Credit, any
Note held by such Lender, any Commitment of such Lender or any other interest of
such Lender hereunder and under the other Credit Documents, provided, however,
that no Lender shall sell any such participating interest to any Participant
which is a Foreign Lender that is unable to deliver to such Lender the forms
required to be delivered pursuant to subsection 5.23(e) hereof. In the event of
any such sale by a Lender of participating interests to a Participant, such
Lender's obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Loan for
all purposes under this Agreement and the other Credit Documents, the Company
and the Administrative Agent shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement and the other Credit Documents; provided, however, that such Lender
shall not, without the consent of the Participant, agree to any amendment,
waiver or other modification described in Section 12.1(a) that affects such
Participant. The Company agrees that if amounts outstanding under this Agreement
and the Loans are due and unpaid, or shall have been declared or shall have
become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement and any Loan to the
same extent as if the amount of its participating interest were owing directly
to it as a Lender under this Agreement or any Loan; provided that such
Participant shall only be entitled to such right of setoff if it shall have
agreed in the agreement pursuant to which it shall have acquired its
participating interest to share with the Lenders the proceeds thereof, as
provided in subsection 12.7. The Company also agrees that each Participant shall
be entitled to the benefits of subsections 5.12, 5.19, 5.20, 5.21 and 5.23 with
respect to its participation in the Letters of Credit and in the Commitments and
the Loans outstanding from time to time; provided that no Participant shall be
entitled to receive any greater amount pursuant to such subsections than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred and each Participant shall be subject to the
provisions of paragraph (c) of subsection 5.20.
(c) Any Lender other than any Conduit Lender may, in the
ordinary course of its business and in accordance with applicable law, with the
prior written consent of the Issuing Lender and the Swing Line Lender in the
case of the Revolving Credit Facility, at any time sell to any Lender or any
Affiliate or Lender Affiliate thereof (including any Affiliate or Subsidiary of
such transferor Lender) and, with the prior written consent of the Company
(subject to the penultimate sentence of this clause (c)) and the Administrative
Agent (which in each case shall not be unreasonably withheld, conditioned, or
delayed), sell to one or more additional banks or financial institutions (an
"Assignee"), all or any part of its rights and obligations under this Agreement,
the Notes and the other Credit Documents and, with respect to the Letters of
Credit, such Lender's L/C Participating Interest, pursuant to an Assignment and
Acceptance executed by such Assignee, such assigning Lender (and by the Company,
the Administrative Agent, the Issuing Lender and the Swing Line Lender, to the
extent their consent is required), and delivered to the Administrative Agent for
its acceptance and recording in the
93
Register (as defined below); provided that (A) each such sale pursuant to this
subsection 12.6(c) of a Lender's rights and Obligations (I) to a Person which is
not then a Lender or an Affiliate or Lender Affiliate of a Lender shall be of
Commitments and/or Loans of $5,000,000 (or, in the case of Tranche B Term Loan
Commitments and Tranche B Term Loans, $1,000,000 or more unless otherwise agreed
by the Company and the Administrative Agent and (II) to a Person which is then a
Lender or an Affiliate or Lender Affiliate of a Lender may be in any amount and
shall not require the consent of the Company or the Administrative Agent, and
(B) each Assignee which is a Foreign Lender shall comply with the provisions of
subsection 5.23(e) hereof; and provided, further that the foregoing shall not
prohibit a Lender from selling participating interests in accordance with
subsection 12.6(b) in all or any portion of its Commitments and/or Loans
(without duplication). For purposes of clauses (A) and (B) of the first proviso
contained in the preceding sentence, the amount described therein shall be
aggregated in respect of each Lender and its Lender Affiliates, if any. Upon
such execution, delivery, acceptance and recording, from and after the effective
date determined pursuant to such Assignment and Acceptance, (x) the Assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
with the Commitments and Loans as set forth therein, and (y) the assigning
Lender thereunder shall, to the extent of the interest transferred, as reflected
in such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such assigning Lender shall cease to be a party hereto). Such
Assignment and Acceptance shall be deemed to amend this Agreement to the extent,
and only to the extent, necessary to reflect the addition of such Assignee and
the resulting adjustment of Commitment Percentages arising from the purchase by
such Assignee of all or a portion of the rights and obligations of such
assigning Lender under this Agreement. Notwithstanding anything herein to the
contrary (and to the extent permitted by law), after the occurrence and during
the continuance of an Event of Default any Lender may sell all or any part of
its rights and obligations under this Agreement without the consent of the
Company. Notwithstanding the foregoing, any Conduit Lender may assign at any
time to its designating Lender hereunder without the consent of the Company or
the Administrative Agent any or all of the Loans it may have funded hereunder
and pursuant to its designation agreement and without regard to the limitations
set forth in the first sentence of this Section 12.6(c).
(d) The Administrative Agent acting on behalf of and as agent
for the Company, shall maintain at the address of the Administrative Agent
referred to in subsection 12.2 a copy of each Assignment and Acceptance
delivered to it and a register (the "Register") for the recordation of the names
and addresses of the Lenders and the Commitment of, the principal amount of any
Tranche B Term Loans, Swing Line Loans and/or Revolving Credit Loans owing to,
and if such Lender has any Revolving Credit Commitment, the L/C Participating
Interests of, each Lender from time to time. The entries in the Register shall
be conclusive, in the absence of manifest error, and the Company, the
Administrative Agent and the Lenders shall treat each Person whose name is
recorded in the Register as the owner of the Loans or L/C Participating
Interests recorded therein for all purposes of this Agreement, notwithstanding
any notice to the contrary. The Register shall be available for inspection by
the Company or any Lender at any reasonable time and from time to time upon
reasonable prior notice. No assignment shall be effective for purposes of this
agreement unless it has been recorded in the Register as provided in this
paragraph.
94
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and by the Company, the Issuing Lender,
the Swing Line Lender and the Administrative Agent to the extent required
hereby), together with payment to the Administrative Agent of a registration and
processing fee of $3,500 (which fee the Company shall have no obligation to pay
and which fee may be waived by the Administrative Agent in its discretion), the
Administrative Agent shall (i) promptly accept such Assignment and Acceptance
and (ii) on the effective date determined pursuant thereto, record the
information contained therein in the Register and give notice of such acceptance
and recordation to the Lenders and the Company.
(f) The Company authorizes each Lender to disclose to any
Participant, Assignee or counterparty (or its advisors) to any swap derivative
transaction or securitization relating to the Company and its obligations (each,
a "Transferee") and any prospective Transferee so long as such Transferee agrees
to keep any such non public information confidential) any and all financial
information in such Lender's possession concerning the Company and its
Subsidiaries which has been delivered to such Lender by or on behalf of the
Company pursuant to this Agreement or which has been delivered to such Lender by
or on behalf of the Company in connection with such Lender's credit evaluation
of the Company and its Subsidiaries and Affiliates prior to becoming a party to
this Agreement.
(g) If, pursuant to this subsection 12.6, any interest in
this Agreement or any Loan or Letter of Credit is transferred to any Transferee
which would be a Foreign Lender upon the effectiveness of such transfer, the
assigning Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, (i) to represent to the assigning Lender (for
the benefit of the assigning Lender, the Administrative Agent and the Company)
that under applicable law and treaties no Taxes will be required to be withheld
by the Administrative Agent, the Company or the assigning Lender with respect to
any payments to be made to such Transferee in respect of the Loans or L/C
Participating Interests, (ii) to furnish to the assigning Lender (and, in the
case of any Assignee registered in the Register, the Administrative Agent and
the Company) such Internal Revenue Service Forms required to be furnished
pursuant to subsection 5.23(e) and (iii) to agree (for the benefit of the
assigning Lender, the Administrative Agent and the Company) to be bound by the
provisions of subsection 5.23(e).
(h) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment (i) by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law and (ii) by a Lender
Affiliate which is a fund to its trustee in support of its obligations to its
trustee; provided that any transfer of Loans or Notes upon, or in lieu of,
enforcement of or the exercise of remedies under any such pledge shall be
treated as an assignment thereof which shall not be made without compliance with
the requirements of this subsection 12.6.
(i) The Company, upon receipt of written notice from the
relevant Lender, agrees to issue Notes to any Lender requiring Notes to
facilitate transactions of the type described in paragraph (h) above.
95
(j) Each of the Company, each Lender and the Administrative
Agent hereby confirms that it will not institute against a Conduit Lender or
join any other Person in instituting against a Conduit Lender any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding under any
state bankruptcy or similar law, for one year and one day after the payment in
full of the latest maturing commercial paper note issued by such Conduit Lender;
provided, however (i) that each Lender designating any Conduit Lender hereby
agrees to indemnify, save and hold harmless each other party hereto for any
loss, cost, damage or expense arising out of its inability to institute such a
proceeding against such Conduit Lender during such period forbearance and (ii)
the foregoing shall not prohibit or limit the ability of any such Person to file
claims against a Conduit Lender in connection with any such proceeding.
12.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement expressly provides for payments to be allocated to a particular Lender
or Lenders, if any Lender (a "Benefitted Lender") shall at any time receive any
payment of all or part of any of its Tranche B Term Loan, Revolving Credit Loans
(other than payment of Swing Line Loans) or L/C Participating Interests, as the
case may be, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in clause (f) of Section 10, or otherwise)
in a greater proportion than any such payment to and collateral received by any
other Lender, if any, in respect of such other Lender's Tranche B Term Loan,
Revolving Credit Loans or L/C Participating Interests, as the case may be, or
interest thereon, such Benefitted Lender shall purchase for cash from the other
Lenders such portion of each such other Lender's Tranche B Term Loan, Revolving
Credit Loans or L/C Participating Interests, as the case may be, or shall
provide such other Lenders with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such Benefitted Lender to share
the excess payment or benefits of such collateral or proceeds ratably with each
of the Lenders; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such Benefitted Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest. The Company agrees that each
Lender so purchasing a portion of another Lender's Loans and/or L/C
Participating Interests may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if such
Lender were the direct holder of such portion. The Administrative Agent shall
promptly give the Company notice of any set-off, provided that the failure to
give such notice shall not affect the validity of such set-off.
(b) Upon the occurrence and during the continuance of an
Event of Default specified in Section 10(a) or 10(f), each Agent and each Lender
are hereby irrevocably authorized at any time and from time to time without
notice to the Company, any such notice being hereby waived by the Company, to
set off and appropriate and apply any and all deposits (general or special, time
or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Agent or such Lender to or for the credit or the account of the
Company or any part thereof in such amounts as such Agent or such Lender may
elect, on account of the liabilities of the Company hereunder and under the
other Credit Documents and claims of every nature and description of such Agent
or such Lender against the Company in any currency, whether arising hereunder,
or otherwise, under any other Credit Document as such Agent or such Lender may
elect, whether or not such Agent or such Lender has made any demand for payment
and although such liabilities and claims may be
96
contingent or unmatured. Each Agent and each Lender shall notify the Company
promptly of any such setoff made by it and the application made by it of the
proceeds thereof, provided that the failure to give such notice shall not affect
the validity of such setoff and application. The rights of each Agent and each
Lender under this paragraph are in addition to other rights and remedies
(including, without limitation, other rights of setoff) which such Agent or such
Lender may have.
12.8 Counterparts. This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Company and the Administrative Agent. This Agreement
shall become effective with respect to the Company, the Agents and the Lenders
when the Administrative Agent shall have received copies of this Agreement
executed by the Company, the Syndication Agents and the Lenders, or, in the case
of any Lender, shall have received telephonic confirmation from such Lender
stating that such Lender has executed counterparts of this Agreement or the
signature pages hereto and sent the same to the Administrative Agent.
12.9 Integration. This Agreement and the other Credit Documents
represent the entire agreement of the Credit Parties, the Agents and the Lenders
with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by any Agent or any Lender
relative to the subject matter hereof or thereof not expressly set forth or
referred to herein or in the other Credit Documents.
12.10 GOVERNING LAW; NO THIRD PARTY RIGHTS. THIS AGREEMENT AND THE
LOANS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE
LOANS SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK. THIS AGREEMENT IS SOLELY FOR THE BENEFIT OF
THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, AND, EXCEPT AS
SET FORTH IN SUBSECTION 12.6, NO OTHER PERSONS SHALL HAVE ANY RIGHT, BENEFIT,
PRIORITY OR INTEREST UNDER, OR BECAUSE OF THE EXISTENCE OF, THIS AGREEMENT.
12.11 SUBMISSION TO JURISDICTION; WAIVERS. EACH PARTY TO THIS
AGREEMENT HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(i) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OF THE OTHER CREDIT
DOCUMENTS, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN
RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK, THE COURTS OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS
FROM ANY THEREOF;
(ii) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE
BROUGHT IN SUCH COURTS, AND WAIVES ANY OBJECTION THAT IT
97
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(iii) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO SUCH PARTY AT ITS ADDRESS SET FORTH IN SUBSECTION 12.2 OR
AT SUCH OTHER ADDRESS OF WHICH THE ADMINISTRATIVE AGENT SHALL HAVE BEEN
NOTIFIED PURSUANT THERETO; AND
(iv) AGREES THAT NOTHING CONTAINED HEREIN SHALL AFFECT THE
RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION.
EACH PARTY HERETO UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING REFERRED TO IN PARAGRAPH (a) ABOVE.
12.12 Acknowledgements. The Company hereby acknowledges that:
(a) none of the Agents or any Lender has any fiduciary
relationship to any Credit Party, and the relationship between the Agents and
the Lenders, on the one hand, and the Credit Parties, on the other hand, is
solely that of creditor and debtor; and
(b) no joint venture exists among the Lenders or among any
Credit Parties and the Lenders.
12.13 USA Patriot Act. Each Lender hereby notifies the Company
that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the "Act"), it may be required to
obtain, verify and record information that identifies the Company, which
information includes the name and address of the Company and other information
that will allow such Lender to identify the Company in accordance with the Act.
12.14 Amendment and Restatement. On the Amendment Effective Date,
the Original Credit Agreement will be automatically amended and restated in its
entirety to read in full as set forth herein. On and after the Amendment
Effective Date, the rights and obligations of the parties hereto shall be
governed by the Original Credit Agreement, as amended and restated by this
Agreement, provided that the rights and obligations of the parties hereto with
respect to the period prior to the Amendment Effective Date shall be governed by
the provisions of the Original Credit Agreement. Once the Amendment Effective
Date has occurred, all references to the Original Credit Agreement in any
document, instrument, agreement, or writing shall be deemed to refer to the
Original Credit Agreement as amended and restated by this Agreement.
98
Other than as specifically provided herein, this Agreement shall
not operate as a waiver or amendment of any right, power or privilege of the
Administrative Agent or any Lender under the Original Credit Agreement or any
other Credit Document (as defined in the Original Credit Agreement) or of any
other term or condition of the Original Credit Agreement or any other Credit
Document, nor shall the entering into of this Agreement preclude the
Administrative Agent and/or any Lender from refusing to enter into any further
waivers or amendments with respect thereto. This Agreement is not intended by
any of the parties hereto to be interpreted as a course of dealing which would
in any way impair the rights or remedies of the Administrative Agent or any
Lender except as expressly stated herein, and no Lender shall have any
obligation to extend credit to the Borrower other than pursuant to the strict
terms of this Agreement and the other Credit Documents, as amended, modified or
supplemented to date (including by means of this Agreement).
12.15 Reaffirmation of Credit Documents. The Company reaffirms as
of the Amendment Effective Date its covenants and agreements contained in each
Credit Document (as defined in the Original Credit Agreement) to which it is a
party. The Company further confirms that each such document to which it is a
party is and shall continue to be in full force and effect and the same are
hereby ratified, approved and confirmed in all respects, except as such
documents may be modified by this Agreement.
(Remainder of this page intentionally left blank)
99
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered in New York, New York by their proper and duly
authorized officers as of the day and year first above written.
BE AEROSPACE, INC.
By: /s/ Thomas P. McCaffrey
------------------------------------------
Title:
(Signature Page to Amended and Restated Credit Agreement)
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent, Issuing Bank
and as a Lender
By: /s/ Matthew H. Massie
-----------------------------------------
Name: Matthew H. Massie
Title: Managing Director
(Signature Page to Amended and Restated Credit Agreement)
UBS SECURITIES LLC,
as Joint Lead Arranger, Joint Bookrunner and
as Syndication Agent
By: /s/ James Boland
------------------------------------------
Name: James Boland
Title: Managing Director
By: /s/ Eric H. Coombs
------------------------------------------
Name: Eric H. Coombs
Title: Managing Director
Address for Notices
UBS Securities LLC
299 Park Avenue
New York, NY 10171
Attention: Christopher Abbate
Fax: 212-821-5766
(Signature Page to Amended and Restated Credit Agreement)
CREDIT SUISSE SECURITIES (USA) LLC,
as Joint Lead Arranger, Joint Bookrunner and
as Syndication Agent
By: /s/ J. Tracy Mehr
------------------------------------------
Name: J. Tracy Mehr
Title: Managing Director
Address for Notices
Eleven Madison Avenue
New York, NY 10010
Attention: Jay B. Drezner
Telecopy: 212-743-2451
(Signature Page to Amended and Restated Credit Agreement)
UBS LOAN FINANCE LLC,
as Lender
By: /s/ Arja R. Otsa
------------------------------------------
Name: Arja R. Otsa
Title: Associate Director
Banking Products Services, US
By: /s/ Richard L. Tavrow
-------------------------------
Name: Richard L. Tavrow
Title: Director
Banking Products Services, US
Address for Notices
677 Washington Blvd.
Stamford, CT 06901
Attention: Safraz Hassan
Telecopy: 203-719-3888
(Signature Page to Amended and Restated Credit Agreement)
CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
as a Lender
By: /s/ Karl M. Studer
-----------------------------------------
Name: Karl M. Studer
Title: Director
By: /s/ Karl. A. Lesnik
----------------------------------------
Name: Karl A. Lesnik
Title: Assistant Vice President
Address for Notices
Eleven Madison Avenue
New York, NY 10010
Attention: Karl M. Studer
Telecopy: 212-743-1984
(Signature Page to Amended and Restated Credit Agreement)
ADDITIONAL SIGNATURE PAGE FOR THE
AMENDED AND RESTATED CREDIT AGREEMENT,
AMONG
BE AEROSPACE, INC.
CERTAIN LENDERS,
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT,
AND UBS SECURITIES LLC AND CREDIT SUISSE SECURITIES (USA) LLC, AS
SYNDICATION AGENTS
NAME OF INSTITUTION:
Walls Fargo Bank, N.A.
as Lender
-------------------------------
By: /s/ David Matter
----------------------------
Name: David Matter
Title: Regional Vice President
Address for Notices:
Walls Fargo Bank
401 E. Jackson St.
Suite 1450
Tampa, FL 33602
(Lender Signature Page)
ADDITIONAL SIGNATURE PAGE FOR THE
AMENDED AND RESTATED CREDIT AGREEMENT,
AMONG
BE AEROSPACE, INC.
CERTAIN LENDERS,
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT,
AND UBS SECURITIES LLC AND CREDIT SUISSE SECURITIES (USA) LLC, AS
SYNDICATION AGENTS
NAME OF INSTITUTION:
Webster Bank, National Association
as Lender
-------------------------------
By: /s/ John Gileenan
----------------------------
Name: John Gileenan
Title: Vice President
Address for Notices:
City Place II
185 Asylum Street, 3rd Floor
Hartford, CT 06103-3494
Attention: Donna Long
Fax: (860) 947-1872
(Lender Signature Page)
ADDITIONAL SIGNATURE PAGE FOR THE
AMENDED AND RESTATED CREDIT AGREEMENT,
AMONG
BE AEROSPACE, INC.
CERTAIN LENDERS,
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT,
AND UBS SECURITIES LLC AND CREDIT SUISSE SECURITIES (USA) LLC, AS
SYNDICATION AGENTS
NAME OF INSTITUTION:
The Foothill Group, Inc.
as Lender
-------------------------------
By: /s/ Jeffrey T. Nikora
----------------------------
Name: Jeffrey T. Nikora
Title: Executive Vice President
Address for Notices:
The Foothill Group, Inc.
2450 Golorado Ave, Suite 3000 West
Santa Monica, CA 90404
(Lender Signature Page)
ADDITIONAL SIGNATURE PAGE FOR THE
AMENDED AND RESTATED CREDIT AGREEMENT,
AMONG
BE AEROSPACE, INC.
CERTAIN LENDERS,
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT,
AND UBS SECURITIES LLC AND CREDIT SUISSE SECURITIES (USA) LLC, AS
SYNDICATION AGENTS
NAME OF INSTITUTION:
State Bank of India
as Lender
-------------------------------
By: /s/ Rakesh Chandra
----------------------------
Name: Rakesh Chandra
Title: Vice President & Head (Credit)
Address for Notices:
460 Park Avenue
New York, NY 10022
(Lender Signature Page)
ADDITIONAL SIGNATURE PAGE FOR THE
AMENDED AND RESTATED CREDIT AGREEMENT,
AMONG
BE AEROSPACE, INC.
CERTAIN LENDERS,
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT,
AND UBS SECURITIES LLC AND CREDIT SUISSE SECURITIES (USA) LLC, AS
SYNDICATION AGENTS
NAME OF INSTITUTION:
as Lender
The Royal Bank of Scotland, plc
By: /s/ L. Peter Yetman
----------------------------
Name: L. Peter Yetman
Title: Senior Vice President
Address for Notices:
101 Park Avenue
12th Floor
New York, NY 10178
(Lender Signature Page)
ADDITIONAL SIGNATURE PAGE FOR THE
AMENDED AND RESTATED CREDIT AGREEMENT,
AMONG
BE AEROSPACE, INC.
CERTAIN LENDERS,
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT,
AND UBS SECURITIES LLC AND CREDIT SUISSE SECURITIES (USA) LLC, AS
SYNDICATION AGENTS
NAME OF INSTITUTION:
REGIONS BANK
as Lender
-------------------------------
By: /s/ Joseph Marchese
----------------------------
Name: Joseph Marchese
Title: Senior Vice President
Address for Notices:
Regions Bank
2800 Ponce de Leon Blvd, 9th Floor
Coral Gables, FL 33134
(Lender Signature Page)
ADDITIONAL SIGNATURE PAGE FOR THE
AMENDED AND RESTATED CREDIT AGREEMENT,
AMONG
BE AEROSPACE, INC.
CERTAIN LENDERS,
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT,
AND UBS SECURITIES LLC AND CREDIT SUISSE SECURITIES (USA) LLC, AS
SYNDICATION AGENTS
NAME OF INSTITUTION:
Bank of America, N.A.
as Lender
-------------------------------
By: /s/ Michael J. Colon
----------------------------
Name: Michael J. Colon
Title: Vice President
Address for Notices:
315 Montgomery St., 6th Floor
San Francisco, CA 94104
FAX: (415) 622-0234
(Lender Signature Page)
ADDITIONAL SIGNATURE PAGE FOR THE
AMENDED AND RESTATED CREDIT AGREEMENT,
AMONG
BE AEROSPACE, INC.
CERTAIN LENDERS,
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT,
AND UBS SECURITIES LLC AND CREDIT SUISSE SECURITIES (USA) LLC, AS
SYNDICATION AGENTS
DZ BANK AG Deutsche Zentral-Genossenschaftsbank,
Frankfurt am Main,
as Lender
By: /s/ Richard W. Wilbert
----------------------------
Name: Richard W. Wilbert
Title: Vice President
By: /s/ Bernd Henrik Franke
----------------------------
Name: Bernd Henrik Franke
Title: Senior Vice President
Address for Notices:
DZ BANK AG
609 Fifth Avenue
New York, NY 10017
Attn: Richard W. Wilbert
(Lender Signature Page)
ADDITIONAL SIGNATURE PAGE FOR THE
AMENDED AND RESTATED CREDIT AGREEMENT,
AMONG
BE AEROSPACE, INC.
CERTAIN LENDERS,
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT,
AND UBS SECURITIES LLC AND CREDIT SUISSE SECURITIES (USA) LLC, AS
SYNDICATION AGENTS
NAME OF INSTITUTION:
Mizuho Corporate Bank, Ltd.
as Lender
-------------------------------
By: /s/ Bertram Tang
----------------------------
Name: Bertram Tang
Title: Senior Vice President & Team Leader
Address for Notices:
1251 Avenue of the Americas
New York, NY 10020
(Lender Signature Page)
ADDITIONAL SIGNATURE PAGE FOR THE
AMENDED AND RESTATED CREDIT AGREEMENT,
AMONG
BE AEROSPACE, INC.
CERTAIN LENDERS,
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT,
AND UBS SECURITIES LLC AND CREDIT SUISSE SECURITIES (USA) LLC, AS
SYNDICATION AGENTS
NAME OF INSTITUTION:
General Electric Capital Corporation
as Lender
-------------------------------
By: /s/ Paul A. Vitti
----------------------------
Name: Paul A. Vitti
Title: DULY AUTHORIZED SIGNATORY
Address for Notices:
201 Merritt 7
PO Box 5201
Norwalk, CT 06856-5201
Attn: BE Aerospace Inc.
Account Manager
(Lender Signature Page)
Schedule 1A to Amended and Restated Credit Agreement
----------------------------------------------------
Commitment Amounts
- --------------------------------------------------------------------------------
Lender Revolving Credit Tranche B Term Loan
Commitment Commitment
- --------------------------------------------------------------------------------
JPMorgan Chase Bank, N.A. $30,000,000.00 $251,000,000.00
- --------------------------------------------------------------------------------
UBS Loan Finance LLC $30,000,000.00
- --------------------------------------------------------------------------------
Credit Suisse, Cayman Islands Branch $30,000,000.00
- --------------------------------------------------------------------------------
The Royal Bank of Scotland, plc $25,000,000.00 $10,000,000.00
- --------------------------------------------------------------------------------
Regions Bank $15,000,000.00 $5,000,000.00
- --------------------------------------------------------------------------------
Wells Fargo Bank, N.A. $15,000,000.00 $5,000,000.00
- --------------------------------------------------------------------------------
Bank of America, N.A. $15,000,000.00
- --------------------------------------------------------------------------------
MIZUHO Corporate Bank $15,000,000.00
- --------------------------------------------------------------------------------
General Electric Capital Corp. $10,000,000.00 $20,000,000.00
- --------------------------------------------------------------------------------
State Bank of India $10,000,000.00 $2,000,000.00
- --------------------------------------------------------------------------------
Webster Bank, N.A. $5,000,000.00 $2,000,000.00
- --------------------------------------------------------------------------------
The Foothill Group, Inc. $3,000,000.00
- --------------------------------------------------------------------------------
DZ Bank AG $2,000,000.00
- --------------------------------------------------------------------------------