EXHIBIT 10.3
CREDIT AND GUARANTY AGREEMENT
DATED AS OF JULY 22, 2002
AMONG
BERRY PLASTICS CORPORATION,
BPC HOLDING CORPORATION,
CERTAIN SUBSIDIARIES OF BERRY PLASTICS CORPORATION
AS GUARANTORS,
VARIOUS LENDERS,
GOLDMAN SACHS CREDIT PARTNERS L.P.,
AS ADMINISTRATIVE AGENT,
JPMORGAN CHASE BANK,
AS SYNDICATION AGENT,
FLEET NATIONAL BANK,
AS COLLATERAL AGENT, ISSUING BANK AND SWING LINE LENDER,
AND
THE ROYAL BANK OF SCOTLAND
AND
GENERAL ELECTRIC CAPITAL CORPORATION,
AS CO-DOCUMENTATION AGENTS
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$480,000,000 SENIOR SECURED CREDIT FACILITIES
--------------------------------------------------------
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS AND INTERPRETATION........................... 2
1.1. Definitions.............................................. 2
1.2. Accounting Terms......................................... 36
1.3. Interpretation, Etc...................................... 37
SECTION 2. LOANS AND LETTERS OF CREDIT.............................. 37
2.1. Term Loans............................................... 37
2.2. Delayed Draw Loans....................................... 38
2.3. Revolving Loans.......................................... 39
2.4. Issuance of Letters of Credit and Purchase of
Participations Therein.................................. 40
2.5. Swing Line Loans......................................... 45
2.6. Pro Rata Shares; Availability of Funds................... 47
2.7. Use of Proceeds.......................................... 48
2.8. Evidence of Debt; Register; Lenders' Books and Records;
Notes.................................................... 48
2.9. Interest on Loans........................................ 49
2.10. Conversion/Continuation.................................. 51
2.11. Default Interest......................................... 52
2.12. Fees..................................................... 52
2.13. Scheduled Payments/Commitment Reductions................. 53
2.14. Voluntary Prepayments/Commitment Reductions.............. 56
2.15. Mandatory Prepayments/Commitment Reductions.............. 57
2.16. Application of Prepayments/Reductions.................... 59
2.17. General Provisions Regarding Payments.................... 61
2.18. Ratable Sharing.......................................... 62
2.19. Making or Maintaining Eurodollar Rate Loans.............. 63
2.20. Increased Costs; Capital Adequacy........................ 65
2.21. Taxes; Withholding, Etc.................................. 67
2.22. Obligation to Mitigate................................... 69
2.23. Defaulting Lenders....................................... 70
2.24. Removal or Replacement of a Lender....................... 71
SECTION 3. CONDITIONS PRECEDENT..................................... 72
3.1. Closing Date............................................. 72
3.2. Conditions to Each Credit Extension...................... 78
SECTION 4. REPRESENTATIONS AND WARRANTIES........................... 80
4.1. Organization; Requisite Power and Authority;
Qualification............................................ 80
4.2. Capital Stock and Ownership.............................. 80
4.3. Due Authorization........................................ 80
4.4. Guarantor Subsidiaries................................... 81
4.5. No Conflict.............................................. 81
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4.6. Governmental Consents.................................... 81
4.7. Binding Obligation....................................... 81
4.8. Historical Financial Statements.......................... 82
4.9. Projections.............................................. 82
4.10. No Material Adverse Change............................... 82
4.11. Adverse Proceedings, Etc................................. 82
4.12. Payment of Taxes......................................... 82
4.13. Properties............................................... 83
4.14. Environmental Matters.................................... 83
4.15. No Defaults.............................................. 84
4.16. Governmental Regulation.................................. 84
4.17. Margin Stock............................................. 84
4.18. Employee Matters......................................... 84
4.19. Employee Benefit Plans................................... 85
4.20. Solvency................................................. 85
4.21. Related Agreements....................................... 85
4.22. Compliance with Statutes, Etc............................ 86
4.23. Disclosure............................................... 86
SECTION 5. AFFIRMATIVE COVENANTS.................................... 86
5.1. Financial Statements and Other Reports................... 86
5.2. Existence................................................ 90
5.3. Payment of Taxes and Claims.............................. 90
5.4. Maintenance of Properties................................ 90
5.5. Insurance................................................ 90
5.6. Inspections.............................................. 91
5.7. Lenders Meetings......................................... 91
5.8. Compliance with Laws..................................... 91
5.9. Environmental............................................ 92
5.10. Subsidiaries............................................. 93
5.11. Additional Material Real Estate Assets................... 93
5.12. Interest Rate Protection................................. 94
5.13. Further Assurances....................................... 94
5.14. Certain Post-Closing Matters............................. 94
SECTION 6. NEGATIVE COVENANTS....................................... 95
6.1. Indebtedness............................................. 95
6.2. Liens.................................................... 98
6.3. Equitable Lien........................................... 100
6.4. No Further Negative Pledges.............................. 100
6.5. Restricted Junior Payments............................... 100
6.6. Restrictions on Subsidiary Distributions................. 101
6.7. Investments.............................................. 102
6.8. Financial Covenants...................................... 103
6.9. Fundamental Changes; Disposition of Assets; Acquisitions. 107
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6.10. Disposal of Subsidiary Interests......................... 108
6.11. Sales and Lease-Backs.................................... 109
6.12. Transactions with Shareholders and Affiliates............ 109
6.13. Conduct of Business...................................... 109
6.14. Permitted Activities of Holdings......................... 110
6.15. Amendments or Waivers of Certain Related Agreements...... 110
6.16. Amendments or Waivers of or with respect to Subordinated
Indebtedness............................................. 110
6.17. Fiscal Year.............................................. 111
6.18. Derivative Transactions.................................. 111
SECTION 7. GUARANTY................................................. 111
7.1. Guaranty of the Obligations.............................. 111
7.2. Contribution by Guarantors............................... 111
7.3. Payment by Guarantors.................................... 112
7.4. Liability of Guarantors Absolute......................... 112
7.5. Waivers by Guarantors.................................... 115
7.6. Guarantors' Rights of Subrogation, Contribution, Etc..... 115
7.7. Subordination of Other Obligations....................... 116
7.8. Continuing Guaranty...................................... 116
7.9. Authority of Guarantors or Company....................... 116
7.10. Financial Condition of Company........................... 116
7.11. Bankruptcy, Etc.......................................... 117
7.12. Discharge of Guaranty Upon Sale of Guarantor............. 118
SECTION 8. EVENTS OF DEFAULT........................................ 118
8.1. Events of Default........................................ 118
SECTION 9. AGENTS................................................... 121
9.1. Appointment of Agents.................................... 121
9.2. Powers and Duties........................................ 122
9.3. General Immunity......................................... 122
9.4. Agents Entitled to Act as Lender......................... 123
9.5. Lenders' Representations, Warranties and Acknowledgment.. 123
9.6. Right to Indemnity....................................... 124
9.7. Sub-Agents............................................... 124
9.8. Successor Administrative Agent, Collateral Agent and
Swing Line Lender........................................ 125
9.9. Collateral Documents and Guaranty........................ 126
SECTION 10. MISCELLANEOUS............................................ 126
10.1. Notices.................................................. 126
10.2. Expenses................................................. 127
10.3. Indemnity................................................ 127
10.4. Set-Off.................................................. 128
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10.5. Amendments and Waivers.................................. 129
10.6. Successors and Assigns; Participations.................. 131
10.7. Independence of Covenants............................... 134
10.8. Survival of Representations, Warranties and Agreements.. 134
10.9. No Waiver; Remedies Cumulative.......................... 134
10.10. Marshalling; Payments Set Aside......................... 135
10.11. Severability............................................ 135
10.12. Obligations Several; Independent Nature of Lenders'
Rights.................................................. 135
10.13. Headings................................................ 135
10.14. APPLICABLE LAW.......................................... 135
10.15. CONSENT TO JURISDICTION................................. 136
10.16. WAIVER OF JURY TRIAL.................................... 136
10.17. Confidentiality......................................... 137
10.18. Usury Savings Clause.................................... 137
10.19. Counterparts............................................ 138
10.20. Effectiveness........................................... 138
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APPENDICES:
A-1 Term Loan Commitments
A-2 Delayed Draw Commitments
A-3 Revolving Commitments
B Notice Addresses
SCHEDULES:
1.1 Redemption of Certain Existing Notes
3.1(l) Closing Date Mortgaged Properties
4.1 Jurisdictions of Organization and Qualification
4.2 Capital Stock and Ownership
4.4 Guarantors
4.13 Real Estate Assets
4.14 Environmental Matters
6.1(g) Surviving Indebtedness
6.2(l) Certain Liens
6.7 Existing Investments
6.8(d)(iii) Historical Quarters
EXHIBITS:
A-1 Funding Notice
A-2 Conversion/Continuation Notice
A-3 Issuance Notice
B-1 Term Loan Note
B-2 Delayed Draw Loan Note
B-3 Revolving Loan Note
B-4 Swing Line Note
C Compliance Certificate
D Opinions of Counsel
E Assignment Agreement
F Certificate Re Non-bank Status
G-1 Closing Date Certificate
G-2 Solvency Certificate
H Counterpart Agreement
I Pledge and Security Agreement
J Mortgage
K Landlord's Consent, Estoppel Certificate and
Amendment
L Intercompany Subordination Agreement
M Joinder Agreement
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CREDIT AND GUARANTY AGREEMENT
This CREDIT AND GUARANTY AGREEMENT, dated as of July 22, 2002, is
entered into by and among BERRY PLASTICS CORPORATION, a Delaware corporation
("COMPANY"), BPC HOLDING CORPORATION, a Delaware corporation ("HOLDINGS"),
CERTAIN SUBSIDIARIES OF COMPANY, as Guarantors, the Lenders party hereto from
time to time, GOLDMAN SACHS CREDIT PARTNERS L.P. ("GSCP"), as Administrative
Agent, (together with its permitted successors in such capacity, "ADMINISTRATIVE
AGENT"), JPMORGAN CHASE BANK ("JPMCB"), as Syndication Agent, FLEET NATIONAL
BANK, as Collateral Agent (together with its permitted successors in such
capacity, "COLLATERAL AGENT"), Issuing Bank (together with its permitted
successors in such capacity, "ISSUING BANK") and Swing Line Lender (together
with its permitted successors in such capacity, "SWING LINE LENDER") and THE
ROYAL BANK OF SCOTLAND and GENERAL ELECTRIC CAPITAL CORPORATION, as
Co-Documentation Agents (together with their permitted successors in such
capacity, "CO-DOCUMENTATION AGENTS").
RECITALS:
WHEREAS, capitalized terms used in these Recitals shall have the
respective meanings set forth for such terms in Section 1.1 hereof;
WHEREAS, Lenders have agreed to extend certain credit facilities to
Company, in an aggregate amount not to exceed $480,000,000, consisting of up to
$330,000,000 aggregate principal amount of Term Loans, up to $50,000,000
aggregate principal amount of Delayed Draw Commitments and up to $100,000,000
aggregate principal amount of Revolving Commitments, the proceeds of which will
be used only as provided in this Agreement;
WHEREAS, Company has agreed to secure all of its Obligations by
granting to Collateral Agent, for the benefit of Secured Parties, a First
Priority Lien on substantially all of its assets, including a pledge of all of
the Capital Stock of each of its Domestic Subsidiaries (except for any stock
held by, or pledged for the benefit of third parties), 65% of all the Capital
Stock of each of its Foreign Subsidiaries that is directly owned by Company or
any Domestic Subsidiary and all indebtedness for borrowed money owed to Company
by any Subsidiary; and
WHEREAS, Guarantors have agreed to guarantee the Obligations of
Company hereunder and to secure their respective Obligations by granting to
Collateral Agent, for the benefit of Secured Parties, a First Priority Lien on
substantially all of their respective assets, including a pledge of all of the
Capital Stock of each of their respective Domestic Subsidiaries (except for any
stock held by, or pledged for the benefit of third parties), and 65% of all the
Capital Stock of each of their respective Foreign Subsidiaries that is directly
owned by Company or any Domestic Subsidiary, and all indebtedness for borrowed
money owed to any Guarantor by Company or any other Guarantors.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS. The following terms used herein, including in the preamble,
recitals, exhibits and schedules hereto, shall have the following meanings:
"2004 NOTES" means Company's 12-1/4% Senior Subordinated Notes due
2004 and Company's 12-1/4% Series B Senior Subordinated Notes due 2004.
"2006 NOTES" means Holdings' 12-1/2% Senior Secured Notes due
2006.
"ADDITIONAL ISSUING BANK" as defined in Section 2.4(i).
"ADDITIONAL NET SALES" means, for any Fiscal Year, the sum of (a) for
each Person directly or indirectly acquired by the Company in a Permitted
Acquisition during such Fiscal Year, the product of (i) 7.5% multiplied by (ii)
the historical net sales of such Person during its most recent four full Fiscal
Quarters immediately preceding the Permitted Acquisition for which quarterly
financial statements have been delivered to the Lenders pursuant to Section
5.1(b), multiplied by (iii) a fraction, the denominator of which is 365 and the
numerator of which is the number of days from (but excluding) the date of such
Permitted Acquisition to (and including) the last day of such Fiscal Year, and
(b) for each Person directly or indirectly acquired by the Company in a
Permitted Acquisition during any prior Fiscal Year, the product of (i) 7.5%
multiplied by (ii) the historical net sales of such Person during its most
recent four full Fiscal Quarters immediately preceding the Permitted Acquisition
for which quarterly financial statements have been delivered to the Lenders
pursuant to Section 5.1(b).
"ADDITIONAL SPONSOR EQUITY" means Cash proceeds received by Holdings
from the issuance of its Capital Stock to, or other capital contributions by one
or more Sponsors for their own account on any day after the Closing Date, in an
aggregate amount not to exceed $100,000,000 during the term of this Agreement.
"ADJUSTED EURODOLLAR RATE" means, for any Interest Rate Determination
Date with respect to an Interest Period for a Eurodollar Rate Loan, the rate per
annum obtained by dividing (and rounding upward to the next whole multiple of
1/16 of 1%) (i) (a) the rate per annum (rounded to the nearest 1/100 of 1%)
equal to the rate determined by Administrative Agent to be the offered rate
which appears on the page of the Dow Jones Telerate Service which displays an
average British Bankers Association Interest Settlement Rate (such page
currently being page number 3740 or 3750, as applicable) for deposits (for
delivery on the first day of such period) with a term equivalent to such period
in Dollars, determined as of approximately 11:00 a.m. (London, England time) on
such Interest Rate Determination Date, or (b) in the event the rate referenced
in the preceding clause (a) does not appear on such page or service or if such
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page or service shall cease to be available, the rate per annum (rounded to the
nearest 1/100 of 1%) equal to the rate determined by Administrative Agent to be
the offered rate on such other page or other service which displays an average
British Bankers Association Interest Settlement Rate for deposits (for delivery
on the first day of such period) with a term equivalent to such period in
Dollars, determined as of approximately 11:00 a.m. (London, England time) on
such Interest Rate Determination Date, or (c) in the event the rates referenced
in the preceding clauses (a) and (b) are not available, the rate per annum
(rounded to the nearest 1/100 of 1%) equal to the offered quotation rate to
first class banks in the London interbank market by JPMCB for deposits (for
delivery on the first day of the relevant period) in Dollars of amounts in same
day funds comparable to the principal amount of the applicable Loan of
Administrative Agent, in its capacity as a Lender, for which the Adjusted
Eurodollar Rate is then being determined with maturities comparable to such
period as of approximately 11:00 a.m. (London, England time) on such Interest
Rate Determination Date, by (ii) an amount equal to (a) one MINUS (b) the
Applicable Reserve Requirement.
"ADMINISTRATIVE AGENT" as defined in the preamble hereto.
"ADVERSE PROCEEDING" means any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration (whether or not purportedly on behalf of Holdings or any of its
Subsidiaries) at law or in equity, or before or by any Governmental Authority,
domestic or foreign (including any Environmental Claims), whether pending or, to
the knowledge of Holdings or any of its Subsidiaries, threatened against or
affecting Holdings or any of its Subsidiaries or any property of Holdings or any
of its Subsidiaries.
"AFFECTED LENDER" as defined in Section 2.19(b).
"AFFECTED LOANS" as defined in Section 2.19(b).
"AFFILIATE" means, as applied to any Person, any other Person directly
or indirectly controlling, controlled by, or under common control with, that
Person, PROVIDED no Person shall be an Affiliate of Holdings, Company or any of
its Subsidiaries solely because such Person controls, or is under common control
with, one or more of the entities constituting the Sponsors. For the purposes of
this definition, "control" (including, with correlative meanings, the terms
"controlling", "controlled by" and "under common control with"), as applied to
any Person, means the possession, directly or indirectly, of the power (i) to
vote 10% or more of the Securities having ordinary voting power for the election
of directors of such Person or (ii) to direct or cause the direction of the
management and policies of that Person, whether through the ownership of voting
securities or by contract or otherwise.
"AGENT" means each of Syndication Agent, Administrative Agent,
Collateral Agent and Co-Documentation Agents and, solely for the purposes of
Sections 9.3, 9.6, 10.2 and 10.3, the Issuing Bank and Swing Line Lender.
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"AGGREGATE AMOUNTS DUE" as defined in Section 2.18.
"AGGREGATE PAYMENTS" as defined in Section 7.2.
"AGREEMENT" means this Credit and Guaranty Agreement, dated as of July
22, 2002, as it may be amended, supplemented or otherwise modified from time to
time.
"APPLICABLE DELAYED DRAW COMMITMENT FEE PERCENTAGE" means 0.75%
per annum.
"APPLICABLE MARGIN" and "APPLICABLE REVOLVING COMMITMENT FEE
PERCENTAGE" mean (i) with respect to Delayed Draw Loans and Revolving Loans that
are Eurodollar Rate Loans and the Applicable Revolving Commitment Fee
Percentage, (a) from the Closing Date until the date of delivery of the
Compliance Certificate and the financial statements for the Fiscal Quarter
ending on or near March 30, 2003, a percentage, per annum, determined by
reference to the following table as if the Leverage Ratio then in effect were in
excess of 4.5:1.00; and (b) thereafter, a percentage, per annum, determined by
reference to the Leverage Ratio in effect from time to time as set forth below:
LEVERAGE APPLICABLE MARGIN APPLICABLE REVOLVING
RATIO FOR DELAYED DRAW LOANS COMMITMENT
AND REVOLVING LOANS FEE PERCENTAGE
> or Equal to 4.50 : 1.00 2.75% 0.50 %
<4.50 : 1.00 2.50% 0.50 %
> or Equal to 4.00 : 1.00
<4.00 : 1.00 2.25% 0.375 %
> or Equal to 3.50 : 1.00
<3.50 : 1.00 2.00% 0.375 %
and (ii) with respect to Swing Line Loans, Delayed Draw Loans and Revolving
Loans that are Base Rate Loans, an amount equal to (a) the Applicable Margin for
Eurodollar Rate Loans as set forth in clause (i)(a) or (i)(b) above, as
applicable, minus (b) 1.00% per annum. No change in the Applicable Margin or the
Applicable Revolving Commitment Fee Percentage shall be effective until three
Business Days after the date on which Administrative Agent shall have received
the applicable financial statements and a Compliance Certificate pursuant to
Section 5.1(d) calculating the Leverage Ratio. At any time Company has not
submitted to Administrative Agent the applicable information as and when
required under Section 5.1(d), the Applicable Margin and the Applicable
Revolving Commitment Fee Percentage shall be determined as if the Leverage Ratio
were
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in excess of 4.5:1.00. Within one Business Day of receipt of the applicable
information under Section 5.1(d), Administrative Agent shall give each Lender
telefacsimile or telephonic notice (confirmed in writing) of the Applicable
Margin and the Applicable Revolving Commitment Fee Percentage in effect from
such date.
"APPLICABLE RESERVE REQUIREMENT" means, at any time, for any
Eurodollar Rate Loan, the maximum rate, expressed as a decimal, at which
reserves (including, without limitation, any basic marginal, special,
supplemental, emergency or other reserves) are required to be maintained for
eurocurrency funding (currently referred to as "Eurocurrency liabilities" in
Regulation D of the Board of Governors of the Federal Reserve System) under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System or other applicable banking regulator. Without limiting the
effect of the foregoing, the Applicable Reserve Requirement shall reflect any
other reserves required to be maintained by such member banks with respect to
(i) any category of liabilities consisting of deposits by reference to which the
applicable Adjusted Eurodollar Rate is to be determined, or (ii) any category of
extensions of credit or other assets consisting of Eurodollar Rate Loans. A
Eurodollar Rate Loan shall be deemed to constitute Eurocurrency liabilities and
as such shall be deemed subject to reserve requirements without benefits of
credit for proration, exceptions or offsets that may be available from time to
time to the applicable Lender. The rate of interest on Eurodollar Rate Loans
shall be adjusted automatically on and as of the effective date of any change in
the Applicable Reserve Requirement.
"ASSET SALE" means a sale, lease or sub-lease (as lessor or
sublessor), assignment, conveyance, transfer or other disposition to, or any
exchange of property with, any Person (other than Holdings, Company or any
Guarantor Subsidiary), in one transaction or a series of transactions, of all or
any part of Holdings' or any of its Subsidiaries' businesses, assets or
properties of any kind, whether real, personal, or mixed and whether tangible or
intangible, whether now owned or hereafter acquired, including, without
limitation, the Capital Stock of any of Holdings' Subsidiaries, other than (i)
inventory sold or leased in the ordinary course of business of Company and its
Subsidiaries (excluding any such sales by operations or divisions discontinued
or to be discontinued), (ii) Cash Equivalents sold for Cash or Cash Equivalents
in the ordinary course of business of Company and its Subsidiaries, (iii) the
sale or discount without recourse of accounts receivable only in connection with
the compromise thereof or the assignment of past-due accounts receivable for
collection, (iv) sale and lease-back transactions permitted under Section 6.11,
and (v) sales of other assets for aggregate consideration of less than
$2,000,000 with respect to any transaction or series of related transactions,
PROVIDED, all sales pursuant to clause (v) during any Fiscal Year do not exceed
$5,000,000 in the aggregate.
"ASSIGNMENT AGREEMENT" means an Assignment and Assumption Agreement in
the form of Exhibit E, with such amendments or modifications as may be approved
by Administrative Agent.
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"AUTHORIZED OFFICER" means, as applied to any Person, any individual
holding the position of chairman of the board (if an officer), chief executive
officer, president or one of its vice presidents (or the equivalent thereof),
and such Person's chief financial officer, controller or treasurer.
"BANKRUPTCY CODE" means Title 11 of the United States Code entitled
"Bankruptcy," as now and hereafter in effect, or any successor statute.
"BASE RATE" means, for any day, a rate per annum equal to the greater
of (i) the Prime Rate in effect on such day and (ii) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Effective Rate shall be effective
on the effective day of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively.
"BASE RATE LOAN" means a Loan bearing interest at a rate determined by
reference to the Base Rate.
"BENEFICIARY" means each Agent, Issuing Bank, Lender and Lender
Counterparty.
"BUDGETED AMOUNT" as defined in Section 6.8(c).
"BUSINESS DAY" means any day excluding (i) Saturday, Sunday and any
day which is a legal holiday under the laws of the State of New York or is a day
on which banking institutions located in such state are authorized or required
by law or other governmental action to close and (ii) solely with respect to all
notices, determinations, fundings and payments in connection with the Adjusted
Eurodollar Rate or any Eurodollar Rate Loans, also any day which is not a day
for trading by and between banks in Dollar deposits in the London interbank
market.
"CAPITAL LEASE" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"CAPITAL STOCK" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation),
including, without limitation, partnership interests and membership interests,
and any and all warrants, rights or options to purchase or other arrangements or
rights to acquire any of the foregoing.
"CASH" means money, currency or a credit balance in any demand or
Deposit Account.
"CASH EQUIVALENTS" means, as at any date of determination, (i)
marketable securities (A) issued or directly and unconditionally guaranteed as
to interest and principal by the United States of America or (B) issued by any
agency of the United States of America the obligations of
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which are backed by the full faith and credit of the United States of America,
in each case maturing within one year after such date; (ii) marketable direct
obligations issued by any state of the United States of America or the District
of Columbia or any political subdivision or instrumentality thereof, in each
case maturing within one year after such date and having, at the time of the
acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from
Moody's; (iii) commercial paper maturing no more than one year from the date of
creation thereof and having, at the time of the acquisition thereof, a rating of
at least A-1 from S&P or at least P-1 from Moody's; (iv) certificates of
deposit, time deposits, eurodollar time deposits, overnight bank deposits or
bankers' acceptances maturing within one year after such date and issued or
accepted by, and money market deposit accounts issued or offered by, any
domestic office of any commercial bank organized under the laws of the United
States of America or any state thereof or the District of Columbia that has
combined capital and surplus and undivided profits of not less than
$500,000,000; (v) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (i) or (ii) above and
entered into with any commercial bank satisfying the requirements of clause (iv)
above; (vi) solely in respect of the ordinary course cash management activities
of the Foreign Subsidiaries, equivalents of the investments described in clauses
(i) and (ii) above to the extent guaranteed by the United Kingdom or the
European Union and equivalents of the investments described in clause (iv) above
issued, accepted or offered by (a) the local office of any commercial bank
meeting the requirements of clause (iv) above in the jurisdiction of
organization of the applicable Foreign Subsidiary or (b) the local office of any
commercial bank organized under the laws of the jurisdiction of organization of
the applicable Foreign Subsidiary which commercial bank (1) has combined capital
and surplus and undivided profits of not less than $1,000,000,000 and (2) a
long-term rating for Dollar-denominated obligations of at least A-1 from S&P or
the equivalent rating from Moody's; and (vii) shares of any money market mutual
fund that (a) complies with the criteria set forth in Securities and Exchange
Commission Rule 2a-7 under the Investment Company Act of 1940, (b) has net
assets of not less than $500,000,000, and (c) has the highest rating obtainable
from either S&P or Moody's.
"CERTIFICATE RE NON-BANK STATUS" means a certificate substantially in
the form of Exhibit F.
"CHANGE OF CONTROL" means, at any time, (i) at least 51% on a
fully-diluted basis of the outstanding voting power of the Voting Stock of
Holdings shall cease to be beneficially owned and controlled by one or more of
the Sponsors; (ii) any person or "group" (within the meaning of Rules 13d-3 and
13d-5 under the Exchange Act) other than one or more of the Sponsors (A) shall
beneficially own a percentage of the economic interests in the Voting Stock of
Holdings on a fully-diluted basis that is greater than the percentage of the
economic interests in the Voting Stock of Holdings on a fully-diluted basis then
held by the Sponsors, taken together, or (B) shall have obtained the power
(whether or not exercised) to elect a majority of the members of the board of
directors (or similar governing body) of Holdings; (iii) Holdings shall cease to
beneficially own
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and control 100% on a fully-diluted basis of the outstanding economic and voting
interest in the Capital Stock of Company; (iv) the majority of the seats (other
than vacant seats) on the board of directors (or similar governing body) of
Holdings cease to be occupied by Persons who either (a) were members of the
board of directors of the Holdings on the Closing Date or (b) were either (x)
nominated for election by the board of directors of Holdings, a majority of whom
were directors on the Closing Date or whose election or nomination for election
was previously approved by a majority of such directors or (y) designated or
appointed by Sponsor; or (v) any "change of control" or similar event under the
Senior Subordinated Note Documents shall occur.
"CLASS" means (i) with respect to Lenders, each of the following
classes of Lenders: (a) Lenders having Delayed Draw Loan Exposure, (b) Lenders
having Term Loan Exposure and (c) Lenders having Revolving Exposure (including
Swing Line Lender), (ii) with respect to Loans, each of the following classes of
Loans: (a) Delayed Draw Loans, (b) Term Loan, and (c) Revolving Loans and (iii)
with respect to Commitments, each of the following classes of Commitments: (a)
Delayed Draw Commitments, (b) Term Loan Commitments and (c) Revolving
Commitments.
"CLOSING DATE" means the date on or before August 31, 2002 on which
the Term Loans are made.
"CLOSING DATE CERTIFICATE" means a Closing Date Certificate
substantially in the form of Exhibit G-1.
"CLOSING DATE MORTGAGED PROPERTY" as defined in Section 3.1(l).
"CO-DOCUMENTATION AGENTS" as defined in the preamble hereto.
"COLLATERAL" means, collectively, all of the real, personal and mixed
property (including Capital Stock) whether now owned or hereafter acquired in
which Liens are purported to be granted pursuant to the Collateral Documents as
security for the Obligations.
"COLLATERAL AGENT" as defined in the preamble hereto.
"COLLATERAL DOCUMENTS" means the Pledge and Security Agreement, the
Mortgages, the Landlord's Consent, Estoppel Certificate and Amendments, if any,
and all other instruments, documents and agreements delivered by any Credit
Party pursuant to this Agreement or any of the other Credit Documents in order
to grant to Collateral Agent, for the benefit of Lenders, a Lien on any real,
personal or mixed property of that Credit Party as security for the Obligations.
"COLLATERAL QUESTIONNAIRE" means a certificate in form satisfactory to
the Collateral Agent that provides information with respect to the personal or
mixed property of each Credit Party.
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"COMPANY" as defined in the preamble hereto.
"COMMITMENT" means any Revolving Commitment, Term Loan Commitment
or Delayed Draw Commitment.
"COMMITMENT PERIOD" means the Delayed Draw Commitment Period or the
Revolving Commitment Period.
"COMMITMENT TERMINATION DATE" means the Delayed Draw Commitment
Termination Date or the Revolving Commitment Termination Date.
"COMPLIANCE CERTIFICATE" means a Compliance Certificate substantially
in the form of Exhibit C.
"CONSOLIDATED ADJUSTED EBITDA" means, for any period, an amount
determined for Holdings and its Subsidiaries on a consolidated basis equal to
the sum, without duplication, of the amounts for such period of (i) Consolidated
Net Income, PLUS (ii) to the extent reducing Consolidated Net Income, (a)
Consolidated Interest Expense, (b) provisions for taxes based on income, (c)
total depreciation expense, (d) total amortization expense, (e) other non-Cash
items (excluding any such non-Cash item to the extent that it represents an
accrual or reserve for potential Cash items in any future period or amortization
of a prepaid Cash item that was paid in a prior period) and (f) Transaction
Costs payable in Cash by Holdings and Company with respect to such period, MINUS
(iii) non-Cash items increasing Consolidated Net Income for such period
(excluding any such non-Cash item to the extent it represents the reversal of an
accrual or reserve for potential Cash item in any prior period).
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the
aggregate of all expenditures of Holdings and its Subsidiaries during such
period determined on a consolidated basis that, in accordance with GAAP, are
included in "purchase of property and equipment" or similar items reflected in
the consolidated statement of cash flows of Holdings and its Subsidiaries, other
than any amount of such expenditures that constitute Permitted Acquisition
Expenses or the permitted application of Net Insurance/Condemnation Proceeds in
accordance with Section 2.15(b).
"CONSOLIDATED CASH INTEREST EXPENSE" means, for any period,
Consolidated Interest Expense for such period, excluding any amount not payable
in Cash.
"CONSOLIDATED CURRENT ASSETS" means, as at any date of determination,
the total assets of Holdings and its Subsidiaries on a consolidated basis that
may properly be classified as current assets in conformity with GAAP, excluding
Cash and Cash Equivalents.
"CONSOLIDATED CURRENT LIABILITIES" means, as at any date of
determination, the total liabilities of Holdings and its Subsidiaries on a
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consolidated basis that may properly be classified as current liabilities in
conformity with GAAP, excluding the current portion of long term debt.
"CONSOLIDATED EXCESS CASH FLOW" means, for any period, an amount (if
positive) equal to: (i) the sum, without duplication, of the amounts for such
period of (a) Consolidated Adjusted EBITDA, plus (b) the Consolidated Working
Capital Adjustment, MINUS (ii) the sum, without duplication, of the amounts for
such period of (a) voluntary and scheduled repayments of Consolidated Total Debt
(excluding repayments of Revolving Loans or Swing Line Loans except to the
extent the Revolving Commitments are permanently reduced in connection with such
repayments), (b)(x) Consolidated Capital Expenditures and (y) Permitted
Acquisition Expenses (excluding any Permitted Acquisition Expenses paid in
respect of Cash or Cash Equivalents of an acquired Person), in each of cases (x)
and (y) except to the extent financed with the proceeds of Additional Sponsor
Equity, other financings or Asset Sales, (c) Consolidated Cash Interest Expense,
(d) provisions for current taxes based on income of Holdings and its
Subsidiaries and payable in Cash with respect to such period and (e) Transaction
Costs payable in Cash by Holdings and Company with respect to such period.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, total interest
expense (including that portion attributable to Capital Leases in accordance
with GAAP and capitalized interest) of Holdings and its Subsidiaries on a
consolidated basis with respect to all outstanding Indebtedness of Holdings and
its Subsidiaries, including all commissions, discounts and other fees and
charges owed with respect to letters of credit and net costs under Interest Rate
Agreements, but excluding, however, any amounts referred to in Section 2.12(e)
payable on or before the Closing Date.
"CONSOLIDATED NET INCOME" means, for any period, (i) the net income
(or loss) of Holdings and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with GAAP,
MINUS (ii) (a) the income (or loss) of any Person (other than a Subsidiary of
Holdings) in which any other Person (other than Holdings or any of its
Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to Holdings or any of its
Subsidiaries by such Person during such period, (b) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary of Holdings or is
merged into or consolidated with Holdings or any of its Subsidiaries or that
Person's assets are acquired by Holdings or any of its Subsidiaries, (c) the
income of any Subsidiary of Holdings to the extent that the declaration or
payment of dividends or similar distributions by that Subsidiary of that income
is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary, (d) any after-tax gains or losses
attributable to Asset Sales or returned surplus assets of any Pension Plan, and
(e) (to the extent not included in clauses (a) through (d) above) any non-Cash
net extraordinary gains or non-Cash net extraordinary losses.
-10-
"CONSOLIDATED TOTAL DEBT" means, as at any date of determination, the
aggregate stated balance sheet amount of all Indebtedness of Holdings and its
Subsidiaries determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED WORKING CAPITAL" means, as at any date of determination,
the excess of Consolidated Current Assets over Consolidated Current Liabilities.
"CONSOLIDATED WORKING CAPITAL ADJUSTMENT" means, for any period, the
amount (which may be a negative number) of the following, without duplication,
(i) Consolidated Working Capital as of the beginning of such period, MINUS (ii)
Consolidated Working Capital as of the end of such period, excluding from such
calculation the Net Current Assets of any Subsidiary acquired in a Permitted
Acquisition during such period, determined at the time of such acquisition.
"CONTRACTUAL OBLIGATION" means, as applied to any Person, any
provision of any Security issued by that Person or of any indenture, mortgage,
deed of trust, contract, written undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject.
"CONTRIBUTING GUARANTORS" as defined in Section 7.2.
"CONVERSION/CONTINUATION DATE" means the effective date of a
continuation or conversion, as the case may be, as set forth in the applicable
Conversion/Continuation Notice.
"CONVERSION/CONTINUATION NOTICE" means a Conversion/Continuation
Notice substantially in the form of Exhibit A-2.
"COUNTERPART AGREEMENT" means a Counterpart Agreement substantially in
the form of Exhibit H delivered by a Credit Party pursuant to Section 5.10.
"CREDIT DATE" means the date of a Credit Extension.
"CREDIT DOCUMENT" means any of this Agreement, the Notes, if any, the
Collateral Documents, any documents or certificates executed by Company in favor
of Issuing Bank relating to Letters of Credit, and all other documents,
instruments or agreements executed and delivered by a Credit Party for the
benefit of any Agent, Issuing Bank or any Lender in connection herewith.
"CREDIT EXTENSION" means the making of a Loan or the issuing of a
Letter of Credit.
"CREDIT PARTY" means Company, the Guarantors and each other Person
(other than any Agent, Issuing Bank or any Lender or any other representative
thereof) from time to time party to a Credit Document.
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"CURRENCY AGREEMENT" means any foreign exchange contract, currency
swap agreement, futures contract, option contract, synthetic cap or other
similar agreement or arrangement, each of which is for the purpose of hedging
the foreign currency risk associated with Holdings' and its Subsidiaries'
operations and not for speculative purposes.
"DEFAULT" means a condition or event that, after notice or lapse of
time or both, would constitute an Event of Default.
"DEFAULT EXCESS" means, with respect to any Defaulting Lender, the
excess, if any, of such Defaulting Lender's Pro Rata Share of the aggregate
outstanding principal amount of Loans of all Lenders (calculated as if all
Defaulting Lenders (other than such Defaulting Lender) had funded all of their
respective Defaulted Loans) over the aggregate outstanding principal amount of
all Loans of such Defaulting Lender.
"DEFAULT PERIOD" means, with respect to any Defaulting Lender, the
period commencing on the date of the applicable Funding Default and ending on
the earliest of the following dates: (i) the date on which all Commitments are
cancelled or terminated and/or the Obligations are declared or become
immediately due and payable, (ii) the date on which (a) the Default Excess with
respect to such Defaulting Lender shall have been reduced to zero (whether by
the funding by such Defaulting Lender of any Defaulted Loans of such Defaulting
Lender or by the non-pro rata application of any voluntary or mandatory
prepayments of the Loans in accordance with the terms of Section 2.14 or Section
2.15 or by a combination thereof) and (b) such Defaulting Lender shall have
delivered to Company and Administrative Agent a written reaffirmation of its
intention to honor its obligations hereunder with respect to its Commitments,
and (iii) the date on which Company, Administrative Agent and Requisite Lenders
waive all Funding Defaults of such Defaulting Lender in writing.
"DEFAULTING LENDER" as defined in Section 2.23.
"DEFAULTED LOAN" as defined in Section 2.23.
"DELAYED DRAW COMMITMENT" means the commitment of a Lender to make or
otherwise fund a Delayed Draw Loan and "DELAYED DRAW COMMITMENTS" means such
commitments of all Lenders in the aggregate. The amount of each Lender's Delayed
Draw Commitment, if any, is set forth in Appendix A-1 or in the applicable
Assignment Agreement subject to any adjustment or reduction pursuant to the
terms and conditions hereof. The aggregate amount of the Delayed Draw
Commitments as of the Closing Date is $50,000,000.
"DELAYED DRAW COMMITMENT PERIOD" means the period from the Closing
Date to but excluding the Delayed Draw Commitment Termination Date.
"DELAYED DRAW COMMITMENT TERMINATION DATE" means the earliest to occur
of (i) August 31, 2002, if the Term Loans are not made on or before
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that date, (ii) the date that is 18 calendar months after the Closing Date,
(iii) the date the Delayed Draw Commitments are permanently reduced to zero
pursuant to Section 2.14(b) or 2.15 and (iv) the date of termination of the
Delayed Draw Commitments pursuant to Section 8.1.
"DELAYED DRAW INSTALLMENT" as defined in Section 2.13(b).
"DELAYED DRAW INSTALLMENT DATE" as defined in Section 2.13(b).
"DELAYED DRAW LOAN" means a Loan made by a Lender to Company pursuant
to Section 2.2.
"DELAYED DRAW LOAN EXPOSURE" means, with respect to any Lender, as of
any date of determination, the outstanding principal amount of the Delayed Draw
Loans of such Lender; PROVIDED, at any time prior to the making of the Delayed
Draw Loans, the Delayed Draw Loan Exposure of any Lender shall be equal to such
Lender's Delayed Draw Commitment.
"DELAYED DRAW LOAN MATURITY DATE" means the earlier of (i) the sixth
anniversary of the Closing Date, and (ii) the date that all Term Loans shall
become due and payable in full hereunder, whether by acceleration or otherwise.
"DELAYED DRAW LOAN NOTE" means a promissory note in the form of
Exhibit B-2, as it may be amended, supplemented or otherwise modified from time
to time.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"DOLLARS" and the sign "$" mean the lawful money of the United States
of America.
"DOMESTIC SUBSIDIARY" means any Subsidiary organized under the laws of
the United States of America, any State thereof or the District of Columbia,
other than any such Subsidiary that has no material assets other than Capital
Stock of or other Investments in one or more Foreign Subsidiaries.
"ELIGIBLE ASSIGNEE" means (i) any Lender, any Affiliate of any Lender
and any Related Fund (any two or more Related Funds being treated as a single
Eligible Assignee for all purposes hereof), and (ii) any commercial bank,
insurance company, investment or mutual fund or other entity that is an
"accredited investor" (as defined in Regulation D under the Securities Act) and
which extends credit or buys loans as one of its businesses; PROVIDED, no
Affiliate of Holdings shall be an Eligible Assignee.
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"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" (as defined
in Section 3(3) of ERISA) which is or was sponsored, maintained or contributed
to by, or required to be contributed by, Holdings, any of its Subsidiaries or
any of their respective ERISA Affiliates.
"EMPLOYEE LEVERAGE PROGRAM" means the Holdings 2002 Stock Option Plan,
the Holdings Key Employee Equity Investment Plan and the agreements relating to
the investments by members of management of Holdings and its subsidiaries in GS
Berry Acquisition Corporation, including the contribution and subscription
agreements, management stockholders agreement and promissory notes.
"ENVIRONMENTAL CLAIM" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise), by any governmental authority or
any other Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law; (ii) in connection with any
Hazardous Material or any actual or alleged Hazardous Materials Activity; or
(iii) in connection with any actual or alleged damage, injury, threat or harm to
health, safety, natural resources or the environment.
"ENVIRONMENTAL LAWS" means any and all current or future foreign or
domestic, federal or state (or any subdivision of either of them), statutes,
ordinances, orders, rules, regulations, judgments, Governmental Authorizations,
or any other requirements of Governmental Authorities relating to (i)
environmental matters, including those relating to any Hazardous Materials
Activity; (ii) the generation, use, storage, transportation or disposal of
Hazardous Materials; or (iii) occupational safety and health, industrial
hygiene, land use or the protection of human, plant or animal health in any
manner applicable to Holdings or any of its Subsidiaries or any Facility.
"EQUITY FINANCING" means the issuance for Cash by Holdings to Sponsors
and/or other investors acceptable to the Administrative Agent and the
Syndication Agent of not less than $245,000,000 of common equity in connection
with the Merger.
"EQUITY PROCEEDS" as defined in Section 6.8(d).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor thereto.
"ERISA AFFILIATE" means, as applied to any Person, (i) any corporation
which is a member of a controlled group of corporations within the meaning of
Section 414(b) of the Internal Revenue Code of which that Person is a member;
(ii) any trade or business (whether or not incorporated) which is a member of a
group of trades or businesses under common control within the meaning of Section
414(c) of the Internal Revenue Code of which that Person is a member; and (iii)
any member of an affiliated service group within the meaning of Section 414(m)
or (o) of the Internal Revenue Code of which that Person, any corporation
described in clause (i) above or any trade or business described in clause (ii)
above is
-14-
a member. Any former ERISA Affiliate of Holdings or any of its Subsidiaries
shall continue to be considered an ERISA Affiliate of Holdings or any such
Subsidiary within the meaning of this definition with respect to the period such
entity was an ERISA Affiliate of Holdings or such Subsidiary and with respect to
liabilities arising after such period for which Holdings or such Subsidiary
could be liable under the Internal Revenue Code or ERISA.
"ERISA EVENT" means (i) a "reportable event" within the meaning of
Section 4043 of ERISA and the regulations issued thereunder with respect to any
Pension Plan (excluding those for which the provision for 30-day notice to the
PBGC has been waived by regulation); (ii) the failure to meet the minimum
funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the
Internal Revenue Code) or the failure to make by its due date a required
installment under Section 412(m) of the Internal Revenue Code with respect to
any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan
pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such
plan in a distress termination described in Section 4041(c) of ERISA; (iv) the
withdrawal by Holdings, any of its Subsidiaries or any of their respective ERISA
Affiliates from any Pension Plan with two or more contributing sponsors or the
termination of any such Pension Plan resulting in liability to Holdings, any of
its Subsidiaries or any of their respective Affiliates pursuant to Section 4063
or 4064 of ERISA; (v) the institution by the PBGC of proceedings to terminate
any Pension Plan, or the occurrence of any event or condition which could
reasonably be likely to constitute grounds under ERISA for the termination of,
or the appointment of a trustee to administer, any Pension Plan; (vi) the
imposition of liability on Holdings, any of its Subsidiaries or any of their
respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by
reason of the application of Section 4212(c) of ERISA; (vii) the withdrawal of
Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates in
a complete or partial withdrawal (within the meaning of Sections 4203 and 4205
of ERISA) from any Multiemployer Plan if there is any potential liability
therefore, or the receipt by Holdings, any of its Subsidiaries or any of their
respective ERISA Affiliates of notice from any Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that
it intends to terminate or has terminated under Section 4041A or 4042 of ERISA;
(viii) the occurrence of an act or omission which could reasonably be expected
to give rise to the imposition on Holdings, any of its Subsidiaries or any of
their respective ERISA Affiliates of fines, penalties, taxes or related charges
under Chapter 43 of the Internal Revenue Code or under Section 409, Section
502(c), (i) or (l), or Section 4071 of ERISA in respect of any Employee Benefit
Plan; (ix) the assertion of a material claim (other than routine claims for
benefits) against any Employee Benefit Plan other than a Multiemployer Plan or
the assets thereof, or against Holdings, any of its Subsidiaries or any of their
respective ERISA Affiliates in connection with any Employee Benefit Plan; (x)
receipt from the Internal Revenue Service of notice of the failure of any
Pension Plan (or any other Employee Benefit Plan intended to be qualified under
Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of
the Internal Revenue Code, or the
-15-
failure of any trust forming part of any Pension Plan to qualify for exemption
from taxation under Section 501(a) of the Internal Revenue Code; or (xi) the
imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the Internal
Revenue Code or pursuant to ERISA with respect to any Pension Plan.
"EURODOLLAR RATE LOAN" means a Loan bearing interest at a rate
determined by reference to the Adjusted Eurodollar Rate.
"EVENT OF DEFAULT" means each of the conditions or events set forth
in Section 8.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute.
"EXCLUDED FOREIGN SUBSIDIARIES" means one or more Foreign Subsidiaries
which, together with all their Subsidiaries, have either assets, combined
revenues from operations or combined income from continuing operations that
exceeded 5% of the combined assets, combined revenues from operations or
combined income from continuing operations of Holdings and its Subsidiaries,
taken as a whole, for any Fiscal Year.
"EXCLUDED TAX" means, with respect to Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any Obligation, (i) any Tax imposed as a result of a connection or
former connection between any Lender and the jurisdiction imposing such tax,
including without limitation, any connection arising from such Lender being or
having been a citizen, domiciliary, or resident of such jurisdiction, being
organized in such jurisdiction, or having had a permanent establishment or fixed
place of business therein, but excluding any such connection arising from the
activities of such Lender pursuant to or in respect of this Agreement or any
other Credit Document, including executing, delivering or performing its
obligations or receiving a payment under or enforcing this agreement or any
other loan document, and (ii) in the case of a U.S. Lender or Non-U.S. Lender
(other than a Replacement Lender that is an assignee pursuant to a request by
Company under Section 2.24), any withholding tax that (a) is imposed on amounts
payable to any such Non-U.S. Lender at the time such Non-U.S. Lender becomes a
party to this Agreement or designates a new lending office, or (b) is
attributable to such U.S. Lender or Non-U.S. Lender's failure to comply with
Section 2.21(c), except to the extent that such U.S. Lender or Non-U.S. Lender
(or its assignor, if any) was entitled, at the time of assignment or designation
of a new lending office, as the case may be, to receive additional amounts from
Company with respect to such withholding tax pursuant to Section 2.21(c).
"FACILITY" means any real property (including all buildings, fixtures
or other improvements located thereon) now, hereafter or heretofore owned,
leased, operated or used by Holdings or any of its Subsidiaries or any of their
respective predecessors or Affiliates.
-16-
"FAIR SHARE" as defined in Section 7.2.
"FAIR SHARE CONTRIBUTION AMOUNT" as defined in Section 7.2.
"FAIR SHARE SHORTFALL" as defined in Section 7.2.
"FEDERAL FUNDS EFFECTIVE RATE" means for any day, the rate per annum
(expressed, as a decimal, rounded upwards, if necessary, to the next higher
1/100 of 1%) equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; PROVIDED, (i) if such day
is not a Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (ii) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate charged to Administrative Agent, in its capacity as a Lender, on
such day on such transactions as determined by Administrative Agent.
"FINANCIAL HEDGE AGREEMENT" means an Interest Rate Agreement or a
Currency Agreement entered into with a Lender Counterparty in order to satisfy
the requirements of this Agreement or otherwise in the ordinary course of
business of Company or any of its Subsidiaries.
"FINANCIAL OFFICER CERTIFICATION" means, with respect to the financial
statements for which such certification is required, the certification of the
chief financial officer of Holdings that such financial statements fairly
present, in all material respects, the financial condition of Holdings and its
Subsidiaries as at the dates indicated and the results of their operations and
their cash flows for the periods indicated, subject to changes resulting from
audit and normal year-end adjustments.
"FINANCIAL PLAN" as defined in Section 5.1(i).
"FIRST PRIORITY" means, with respect to any Lien purported to be
created in any Collateral pursuant to any Collateral Document, that such Lien is
the only Lien to which such Collateral is subject, other than Permitted Liens
described in clauses (a) through (n) of Section 6.2.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of Company, which shall be a
period of 52 or 53 weeks, as applicable, ending on the Saturday nearest the end
of each calendar year.
"FLOOD HAZARD PROPERTY" means any Real Estate Asset subject to a
mortgage in favor of Collateral Agent, for the benefit of Lenders, and
-17-
located in an area designated by the Federal Emergency Management Agency as
having special flood or mud slide hazards.
"FOREIGN SUBSIDIARY" means any Subsidiary that is not a Domestic
Subsidiary.
"FUNDING DEFAULT" as defined in Section 2.23.
"FUNDING GUARANTORS" as defined in Section 7.2.
"FUNDING NOTICE" means a notice substantially in the form of Exhibit
A-1.
"GAAP" means, subject to the limitations on the application thereof
set forth in Section 1.2, United States generally accepted accounting
principles.
"GOVERNMENTAL ACTS" means any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
Governmental Authority.
"GOVERNMENTAL AUTHORITY" means any federal, state, municipal, national
or other government, governmental department, commission, board, bureau, court,
agency or instrumentality or political subdivision thereof or any entity or
officer exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to any government or any court, in
each case whether associated with a state of the United States, the United
States, or a foreign entity or government.
"GOVERNMENTAL AUTHORIZATION" means any permit, license, authorization,
plan, directive, consent order or consent decree of or from any Governmental
Authority.
"GRANTOR" as defined in the Pledge and Security Agreement.
"GSCP" as defined in the preamble hereto.
"GUARANTEED OBLIGATIONS" as defined in Section 7.1.
"GUARANTOR" means each of Holdings and each Domestic Subsidiary of
Holdings (other than Company) from time to time.
"GUARANTOR SUBSIDIARY" means each Guarantor other than Holdings.
"GUARANTY" means the guaranty of each Guarantor set forth in Section
7.
"HAZARDOUS MATERIALS" means any chemical, material or substance,
exposure to which is prohibited, limited or regulated by any Governmental
-18-
Authority or which may or could pose a hazard to the health and safety of the
owners, occupants or any Persons in the vicinity of any Facility or to the
indoor or outdoor environment.
"HAZARDOUS MATERIALS ACTIVITY" means any past, current, proposed or
threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous
Materials, and any corrective action or response action with respect to any of
the foregoing.
"HIGHEST LAWFUL RATE" means the maximum lawful interest rate, if any,
that at any time or from time to time may be contracted for, charged, or
received under the laws applicable to any Lender which are presently in effect
or, to the extent allowed by law, under such applicable laws which may hereafter
be in effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.
"HISTORICAL FINANCIAL STATEMENTS" means as of the Closing Date, (i)
the audited financial statements of Holdings and its Subsidiaries, for the
immediately preceding three Fiscal Years, consisting of balance sheets and the
related consolidated statements of income, stockholders' equity and cash flows
for such Fiscal Years, and (ii) the unaudited financial statements of Holdings
and its Subsidiaries as at the most recently ended Fiscal Quarter, consisting of
a balance sheet and the related consolidated statements of income, stockholders'
equity and cash flows for the three-, six- or nine-month period, as applicable,
ending on such date, and, in the case of clauses (i) and (ii), certified by the
Chief Financial Officer of Holdings that they fairly present, in all material
respects, the financial condition of Holdings and its Subsidiaries as at the
dates indicated and the results of their operations and their cash flows for the
periods indicated, subject to changes resulting from audit and normal year-end
adjustments.
"HISTORICAL QUARTER" as defined in Section 6.8(d)(iii).
"HOLDINGS" as defined in the preamble hereto.
"INCREASED-COST LENDERS" as defined in Section 2.24.
"INDEBTEDNESS", as applied to any Person, means, without duplication,
(i) all indebtedness for borrowed money; (ii) that portion of obligations with
respect to Capital Leases that is properly classified as a liability on a
balance sheet in conformity with GAAP; (iii) notes payable and drafts accepted
representing extensions of credit whether or not representing obligations for
borrowed money; (iv) any obligation owed for all or any part of the deferred
purchase price of property or services (excluding any such obligations incurred
under ERISA or any purchase price adjustment under Section 3.7 of the Merger
Agreement), which purchase price is (a) due more than six months from the date
of incurrence of the obligation in respect thereof or (b) evidenced by a note or
similar written instrument; (v) all indebtedness secured by any Lien on any
property or
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asset owned or held by that Person regardless of whether the indebtedness
secured thereby shall have been assumed by that Person or is nonrecourse to the
credit of that Person; (vi) the face amount of any letter of credit issued for
the account of that Person or as to which that Person is otherwise liable for
reimbursement of drawings; (vii) the direct or indirect guaranty, endorsement
(otherwise than for collection or deposit in the ordinary course of business of
Company and its Subsidiaries), co-making, discounting with recourse or sale with
recourse by such Person of the obligation of another; (viii) any obligation of
such Person the primary purpose or intent of which is to provide assurance to an
obligee that the obligation of the obligor thereof will be paid or discharged,
or any agreement relating thereto will be complied with, or the holders thereof
will be protected (in whole or in part) against loss in respect thereof; and
(ix) any liability of such Person for the obligation of another through any
agreement (contingent or otherwise) (a) to purchase, repurchase or otherwise
acquire such obligation or any security therefor, or to provide funds for the
payment or discharge of such obligation (whether in the form of loans, advances,
stock purchases, capital contributions or otherwise) or (b) to maintain the
solvency or any balance sheet item, level of income or financial condition of
another if, in the case of any agreement described under subclauses (a) or (b)
of this clause (ix), the primary purpose or intent thereof is as described in
clause (viii) above; and (x) net obligations of such Person to a counterparty in
respect of any exchange traded or over the counter derivative transaction,
including, without limitation, Financial Hedge Agreements, whether entered into
for hedging or speculative purposes; PROVIDED, in no event shall obligations
under any Financial Hedge Agreements be deemed "Indebtedness" for any purpose
under Section 6.8.
"INDEMNIFIED LIABILITIES" means, collectively, any and all
liabilities, obligations, losses, damages, penalties, claims (including
Environmental Claims), costs (including the costs of any investigation, study,
sampling, testing, abatement, cleanup, removal, remediation or other response
action necessary to remove, remediate, clean up or abate any Hazardous Materials
Activity), expenses and disbursements of any kind or nature whatsoever
(including the reasonable fees and disbursements of counsel for Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened by any Person, whether or not any such Indemnitee shall
be designated as a party or a potential party thereto, and any fees or expenses
incurred by Indemnitees in enforcing this indemnity), whether direct, indirect
or consequential and whether based on any federal, state or foreign laws,
statutes, rules or regulations (including securities and commercial laws,
statutes, rules or regulations and Environmental Laws), on common law or
equitable cause or on contract or otherwise, that may be imposed on, incurred
by, or asserted against any such Indemnitee, in any manner relating to or
arising out of (i) this Agreement or the other Credit Documents or the
transactions contemplated hereby or thereby (including Lenders' agreement to
make Credit Extensions or the use or intended use of the proceeds thereof, any
enforcement of any of the Credit Documents (including any sale of, collection
from, or other realization upon any of the Collateral or the enforcement of the
Guaranty) or the Issuing Bank's issuance of any Letter of Credit or its failure
to honor a drawing under any such Letter of Credit as a result of any
Governmental Act); (ii) the
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statements contained in the commitment letter delivered by any Lender to
Sponsors with respect to the transactions contemplated by this Agreement; or
(iii) any (a) Hazardous Materials Activity which can reasonably be expected to
result in non-compliance with, or liability under, Environmental Laws, or (b)
Environmental Claim relating to or arising from any past or present activity,
operation, land ownership, or practice of Holdings or any of its Subsidiaries.
"INDEMNITEE" as defined in Section 10.3.
"INTERCOMPANY SUBORDINATION AGREEMENT" means an agreement in the form
of Exhibit L.
"INTEREST COVERAGE RATIO" means the ratio as of the last day of any
Fiscal Quarter of (i) Consolidated Adjusted EBITDA for the four-Fiscal Quarter
period then ended, to (ii) Consolidated Cash Interest Expense for such
four-Fiscal Quarter period.
"INTEREST PAYMENT DATE" means with respect to (i) any Base Rate Loan,
each March 31, June 30, September 30 and December 31 of each year, commencing on
the first such date to occur after the Closing Date and the final maturity date
of such Loan; and (ii) any Eurodollar Rate Loan, the last day of each Interest
Period applicable to such Loan; PROVIDED, in the case of each Interest Period of
longer than three months "Interest Payment Date" shall also include each date
that is three months, or an integral multiple thereof, after the commencement of
such Interest Period.
"INTEREST PERIOD" means, in connection with a Eurodollar Rate Loan, an
interest period of one-, two-, three- or six-months, as selected by Company in
the applicable Funding Notice or Conversion/Continuation Notice, (i) initially,
commencing on the Credit Date or Conversion/Continuation Date thereof, as the
case may be; and (ii) thereafter, commencing on the day on which the immediately
preceding Interest Period expires; PROVIDED, (a) if an Interest Period would
otherwise expire on a day that is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day unless no further Business Day occurs
in such month, in which case such Interest Period shall expire on the
immediately preceding Business Day; (b) any Interest Period that begins on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clauses (c) and (d), of this definition, end on the
last Business Day of a calendar month; (c) no Interest Period with respect to
any portion of any Term Loans shall extend beyond the Term Loan Maturity Date;
(d) no Interest Period with respect to any portion of any Delayed Draw Loan
shall extend beyond the Delayed Draw Loan Maturity Date; and (e) no Interest
Period with respect to any portion of the Revolving Loans shall extend beyond
the Revolving Commitment Termination Date.
"INTEREST RATE AGREEMENT" means any interest rate swap agreement
(including any fixed rate or floating rate swap agreement), interest rate cap
agreement, interest rate collar agreement, interest rate hedging agreement or
other similar agreement or arrangement, each of which is for
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the purpose of hedging the interest rate exposure associated with Holdings' and
its Subsidiaries' operations and not for speculative purposes.
"INTEREST RATE DETERMINATION DATE" means, with respect to any Interest
Period, the date that is two Business Days prior to the first day of such
Interest Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, and any successor
statute.
"INVESTMENT" means any (i) purchase or other acquisition (including
pursuant to any merger) of the Capital Stock or other Securities of any Person,
or any beneficial interest therein or (ii) loan, advance, capital contribution
to, or any other investment in, any Person (other than the purchase of current
accounts receivable arising in the ordinary course of business of Company and
its Subsidiaries). The amount of any Investment shall be equal to the sum of (a)
the original cost of such Investment, PLUS (b) the cost of all additions
thereto, MINUS (c) any cash proceeds from the disposition of or other cash
distributions on such Investment to the extent such proceeds or distributions do
not constitute Consolidated Net Income, without any adjustments for increases or
decreases in value or write-ups, write-downs or write-offs with respect to such
Investment, PROVIDED that the amount of any Investment shall not be less than
zero.
"ISSUANCE NOTICE" means an Issuance Notice substantially in the form
of Exhibit A-3.
"ISSUING BANK" as defined in the preamble.
"JOINDER AGREEMENT" means an agreement substantially in the form of
Exhibit M.
"JOINT VENTURE" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form; PROVIDED, in
no event shall any Subsidiary of any Person be considered a Joint Venture to
which such Person is a party.
"JPMCB" as defined in the preamble hereto.
"LANDLORD'S CONSENT, ESTOPPEL CERTIFICATE AND AMENDMENT" means an
agreement substantially in the form of Exhibit K with such amendments or
modifications as may be approved by Collateral Agent.
"LEASEHOLD PROPERTY" means any leasehold interest of any Credit Party
as lessee under any lease of real property.
"LENDER" means each financial institution listed on the signature
pages hereto as a Lender, and any other Person that becomes a party hereto
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pursuant to an Assignment Agreement or a Joinder Agreement, including any Lender
in its capacity as Swing Line Lender and Issuing Bank.
"LENDER COUNTERPARTY" means each Lender or any Affiliate of a Lender
counterparty to a Financial Hedge Agreement including, without limitation, each
such Affiliate that enters into a Joinder Agreement with the Collateral Agent.
"LENDER EFFECTIVE DATE" means (i) in the case of each Lender listed on
the signature pages hereof, the Closing Date, and (ii) in the case of each other
Lender, the effective date of the Assignment Agreement pursuant to which such
Lender became a Lender.
"LETTER OF CREDIT" means a commercial or standby letter of credit
issued or to be issued by Issuing Bank pursuant to this Agreement.
"LETTER OF CREDIT DISBURSEMENT" means a payment made by Issuing Bank
pursuant to a Letter of Credit.
"LETTER OF CREDIT EXPOSURE" means the aggregate Letter of Credit Usage
in respect of all Letters of Credit issued by that Lender (net of any
participations by Lenders in such Letters of Credit.
"LETTER OF CREDIT SUBLIMIT" means the lesser of (i) $15,000,000 and
(ii) the aggregate unused amount of the Revolving Commitments then in effect.
"LETTER OF CREDIT USAGE" means, as at any date of determination, the
sum of (i) the maximum aggregate amount which is, or at any time thereafter may
become, available for drawing under all Letters of Credit then outstanding, and
(ii) the aggregate amount of all drawings under Letters of Credit honored by
Issuing Bank and not theretofore reimbursed by or on behalf of Company.
"LEVERAGE RATIO" means the ratio as of the last day of any Fiscal
Quarter or other date of determination of (i) Consolidated Total Debt as of such
day to (ii) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period
ending on such date (or if such date of determination is not the last of a
Fiscal Quarter, for the four-Fiscal Quarters period ending as of the most
recently concluded Fiscal Quarter).
"LIEN" means (i) any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any agreement to give any
of the foregoing, any conditional sale or other title retention agreement, and
any lease in the nature thereof) and any option, trust or other preferential
arrangement having the practical effect of any of the foregoing and (ii) in the
case of Securities, any purchase option, call or similar right of a third party
with respect to such Securities.
"LOAN" means a Delayed Draw Loan, a Term Loan, a Swing line Loan, and
a Revolving Loan.
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"MARGIN STOCK" as defined in Regulation U of the Board of Governors of
the Federal Reserve System as in effect from time to time.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on and/or
material adverse developments with respect to (i) the business, operations,
properties, assets, condition (financial or otherwise) or prospects of Holdings
and its Subsidiaries, taken as a whole; (ii) the ability of the Credit Parties,
taken as a whole, to fully and timely perform the Obligations; (iii) the
legality, validity, binding effect or enforceability of any Credit Document
against the Credit Parties, taken as a whole, or the Collateral; or (iv) the
rights, remedies and benefits available to, or conferred upon, any Agent, Lender
or Secured Party under any Credit Document.
"MATERIAL REAL ESTATE ASSET" means (i) (a) any fee-owned Real Estate
Asset having a fair market value in excess of $1,000,000 as of the date of the
acquisition thereof and (b) all Leasehold Properties (x) used in the operation
of material production facilities of Company or any of its Subsidiaries or (y)
with respect to which the aggregate rental payments under the term of the
applicable lease exceed $1,000,0000 per annum or (ii) any Real Estate Asset that
the Requisite Lenders have determined is material to the business, operations,
properties, assets, condition (financial or otherwise) or prospects of Holdings
and its Subsidiaries, taken as a whole.
"MERGER" means the acquisition by Sponsors of substantially all the
outstanding Capital Stock of Holdings.
"MERGER AGREEMENT" means the Agreement and Plan of Merger, dated as of
May 25, 2002, among GS Berry Acquisition Corp., Sponsors, Holdings, Company,
Sellers (as defined therein) and Sellers' Representatives (as defined therein),
as in effect on the date hereof.
"MERGER FINANCING REQUIREMENTS" means the aggregate amount necessary
to pay (i) the cash portion of the consideration due to shareholders of Holdings
under the Merger Agreement, (ii) the costs of prepaying, redeeming or purchasing
the Indebtedness of Holdings and Company to be paid on the Closing Date and
thereafter pursuant to redemption notices to be delivered on the Closing Date
and (iii) all other Transaction Costs, in each of cases (i), (ii) and (iii) in
accordance with the Merger Agreement and Schedule 1.1.
"MOODY'S" means Moody's Investor Services, Inc.
"MORTGAGE" means a mortgage substantially in the form of Exhibit J, as
it may be amended, supplemented or otherwise modified from time to time.
"MULTIEMPLOYER PLAN" means any Employee Benefit Plan which is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
-24-
"NAIC" means The National Association of Insurance Commissioners, and
any successor thereto.
"NARRATIVE REPORT" means, with respect to the financial statements for
which such narrative report is required, a narrative report describing the
operations of Holdings and its Subsidiaries in the form prepared for
presentation to senior management thereof for the applicable month, Fiscal
Quarter or Fiscal Year and for the period from the beginning of the then current
Fiscal Year to the end of such period to which such financial statements relate.
"NET ASSET SALE PROCEEDS" means, with respect to any Asset Sale, an
amount equal to: (i) Cash payments (including any Cash received by way of
deferred payment pursuant to, or by monetization of, a note receivable or
otherwise, but only as and when so received) received by Holdings or any of its
Subsidiaries from such Asset Sale, MINUS (ii) any bona fide direct costs and
expenses incurred in connection with such Asset Sale, including (a) income or
gains taxes payable by the seller as a result of any gain recognized in
connection with such Asset Sale, (b) payment of the outstanding principal amount
of, premium or penalty, if any, and interest on any Indebtedness (other than the
Loans) that is secured by a Lien on the stock or assets in question and that is
required to be repaid under the terms thereof as a result of such Asset Sale,
(c) a reasonable reserve for any indemnification payments (fixed or contingent)
attributable to seller's indemnities and representations and warranties to
purchaser in respect of such Asset Sale undertaken by Holdings or any of its
Subsidiaries in connection with such Asset Sale, and (d) reasonable brokerage or
selling commissions and fees and expenses of professional advisors and any title
and recordation expenses.
"NET CURRENT ASSETS" means, for any Person as at any date of
determination, the difference (which may be a negative number) between (i) the
total assets of such Person that may properly be classified as current assets in
conformity with GAAP, excluding Cash and Cash Equivalents, MINUS (ii) the total
liabilities of such Person that may properly be classified as current
liabilities in conformity with GAAP, excluding the current portion of long term
debt.
"NET INSURANCE/CONDEMNATION PROCEEDS" means an amount equal to: (i)
any Cash payments or proceeds received by Holdings or any of its Subsidiaries
(a) under any insurance policy insuring against loss or damage to assets and
property used in the business of Holdings or its Subsidiaries (other than
proceeds of business interruption insurance or any other insurance policy to the
extent such coverage compensates Company or its Subsidiaries for lost revenue or
profits) or (b) as a result of the taking of any assets of Holdings or any of
its Subsidiaries by any Person pursuant to the power of eminent domain,
condemnation or otherwise, or pursuant to a sale of any such assets to a
purchaser with such power under threat of such a taking, MINUS (ii) (a) bona
fide direct reasonable costs and expenses incurred by Holdings or any of its
Subsidiaries in connection with the adjustment or settlement of any claims of
Holdings or such Subsidiary in respect thereof (including reasonable fees and
expenses of professional
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advisors), (b) contractually required payments of Surviving Capital Leases,
Surviving IRBs and Indebtedness incurred under Sections 6.1(g), 6.1(h), 6.1(j)
and 6.1(k), in each case, to the extent incurred to finance the acquisition of
property subject to such loss, taking or sale, and (c) any bona fide direct
costs and expenses incurred in connection with any sale of such assets as
referred to in clause (i)(b) of this definition, including income taxes payable
as a result of any gain recognized in connection therewith, reasonable fees and
expenses of professional advisors, title and recordation expenses and reasonable
indemnification reserves.
"NON-CONSENTING LENDER" as defined in Section 2.24.
"NON-US LENDER" as defined in Section 2.21(c).
"NOTE" means a Delayed Draw Loan Note, a Term Loan Note, a Swing Line
Note, or a Revolving Loan Note.
"NOTICE" means a Funding Notice, an Issuance Notice, or a
Conversion/Continuation Notice.
"OBLIGATIONS" means all obligations of every nature of each Credit
Party from time to time owed to the Agents (including former Agents), the
Lenders or any Lender Counterparties, under any Credit Document or Financial
Hedge Agreement (including, without limitation, with respect to a Financial
Hedge Agreement, obligations owed thereunder to any person who was a Lender or
an Affiliate of a Lender at the time such Financial Hedge Agreement was entered
into), whether for principal, interest (including interest which, but for the
filing of a petition in bankruptcy with respect to such Credit Party, would have
accrued on any Obligation, whether or not a claim is allowed against such Credit
Party for such interest in the related bankruptcy proceeding), reimbursement of
amounts drawn under Letters of Credit, payments for early termination of
Financial Hedge Agreements, fees, expenses, indemnification or otherwise.
"OBLIGEE GUARANTOR" as defined in Section 7.7.
"ORGANIZATIONAL DOCUMENTS" means (i) with respect to any corporation,
its certificate or articles of incorporation or organization, as amended, and
its by-laws, as amended, (ii) with respect to any limited partnership, its
certificate of limited partnership, as amended, and its partnership agreement,
as amended, (iii) with respect to any general partnership, its partnership
agreement, as amended, and (iv) with respect to any limited liability company,
its articles of organization, as amended, and its operating agreement, as
amended. In the event any term or condition of this Agreement or any other
Credit Document requires any Organizational Document to be certified by a
secretary of state or similar governmental official, the reference to any such
"Organizational Document" shall only be to a document of a type customarily
certified by such governmental official.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
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"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
"PERMITTED ACQUISITION" means any acquisition by Company or any of its
Wholly-Owned Guarantor Subsidiaries, whether by purchase, merger or otherwise,
of all or substantially all of the assets or Capital Stock of, or of a business
line or unit or a division of, any Person; PROVIDED,
(i) immediately prior to, and after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing or would
result therefrom;
(ii) all transactions in connection therewith shall be
consummated, in all material respects, in accordance with all applicable
laws and in conformity with all applicable Governmental Authorizations;
(iii) in the case of the acquisition of Capital Stock of any
Person, (A) at least 80% on a fully-diluted basis of each class of the
Capital Stock acquired or otherwise issued by such Person or any newly
formed Subsidiary of Company in connection with such acquisition shall be
owned beneficially and as of record by Company or a Wholly-Owned Guarantor
Subsidiary thereof, and all other such Capital Stock shall be owned
beneficially and as of record by one or more officers, directors, employees
or founders of such Person, and (B) Company shall have taken, or caused to
be taken, as of the date such Person becomes a Subsidiary, each of the
actions set forth in Sections 5.10 and/or 5.11, as applicable;
(iv) Holdings and its Subsidiaries shall be in compliance with
the financial covenants set forth in Section 6.8 as of the later of (x)
March 30, 2002 and (y) the last day of the most recent Fiscal Quarter for
which quarterly financial statements have been delivered to the Lenders
pursuant to Section 5.1(b), on a pro forma basis after giving effect to the
Permitted Acquisition as a Subject Transaction in accordance with Section
6.8;
(v) Company shall have delivered to Administrative Agent (for
distribution to each Lender upon request) at least ten Business Days prior
to such proposed acquisition:
(A) solely in the case of an acquisition (x) financed in
whole or in part with the proceeds of Delayed Draw Loans or (y) in
respect of which the aggregate amount of Permitted Acquisition
Expenses exceed, $20,000,000, a Compliance Certificate evidencing
compliance with Section 6.8 as required
under clause (iv) above;
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(B) a certificate of the Chief Financial Officer of Holdings
certifying that the unused and available portion of Revolving
Commitments will exceed $30,000,000 as of the date of the consummation
of such acquisition, after giving effect thereto;
(C) all relevant financial information with respect to such
acquired assets, including, without limitation, the aggregate
consideration for such acquisition and any other information required
to demonstrate compliance with this Agreement; and
(D) such information and due diligence materials relating to
environmental matters as may be required under Section 5.9(a)(iv) or
as may be otherwise reasonably requested by the Administrative Agent;
and
(vi) any Person, assets or business line, unit or division as
acquired in accordance herewith shall be in a business or lines of business
permitted for Company under Section 6.13; and
(vii) in the case of a direct or indirect acquisition of a
Foreign Subsidiary or any assets, business line, unit or division located
outside the United States of America, on a pro forma basis after giving
effect to such acquisition as of the last day of the Fiscal Quarter
recently ended, Domestic Subsidiaries account for (A) at least 80% of the
consolidated assets of Holdings and its Subsidiaries of Holdings (including
Company) as of the last day of the Fiscal Quarter recently ended and (B) at
least 80% of the consolidated revenues of Holdings and its Subsidiaries for
the last four full Fiscal Quarters recently ended;
PROVIDED, no acquisition of assets, Capital Stock, a business line or unit or a
division of any Person shall constitute a Permitted Acquisition unless made with
the consent of such Person's board of directors or similar governing body.
"PERMITTED ACQUISITION EXPENSES" means Cash (a) consideration paid by
Company or any of its wholly-owned Subsidiaries to acquire assets, Capital Stock
or a business line or unit or division in connection with a Permitted
Acquisition made in accordance with Section 6.9(d), (b) bona fide direct costs
and expenses incurred as a result of a Permitted Acquisition (including costs
and expenses related to the shutdown of facilities and employee severance) to
the extent such costs and expenses (i) are capitalized as part of the cost of
the Permitted Acquisition in the consolidated financial statements of Holdings
and (ii) are paid by Company or its Subsidiaries no more than 180 days from the
date of such Permitted Acquisition, and (c) bona fide direct costs and expenses
paid in connection with such Permitted Acquisition, including reasonable
brokerage or selling commissions and fees and expenses of professional advisors
and any title and recordation expenses, PROVIDED, no Restricted Junior Payment
shall constitute a Permitted Acquisition Expense.
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"PERMITTED ADJUSTMENTS" means, in respect to any Subject Transactions,
pro forma adjustments arising out of events which are directly attributable to
such Subject Transactions, are factually supportable and are expected to have a
continuing impact, which would include cost savings resulting from head count
reduction, closure of facilities and similar restructuring charges and raw
material and other cost savings, which pro forma adjustments are certified by
the Chief Financial Officer of Holdings and which are determined (i) on a basis
consistent with Article 11 of Regulation S-X promulgated under the Securities
Act and as interpreted by the staff of the Securities and Exchange Commission or
(ii) solely in the case of additional pro forma adjustments to Consolidated
Adjusted EBITDA in an aggregate amount (for all Subject Transactions during the
period of determination) not to exceed 7.5% of pro forma Consolidated Adjusted
EBITDA (as reformulated) for the period of determination, on such other basis as
may be certified by the Chief Financial Officer of Holdings to be in compliance
with the requirements of this definition.
"PERMITTED LIENS" means each of the Liens permitted pursuant to
Section 6.2.
"PERSON" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and Governmental Authorities.
"PLEDGE AND SECURITY AGREEMENT" means the Pledge and Security
Agreement to be executed by Company and each Guarantor substantially in the form
of Exhibit I, as it may be amended, supplemented or otherwise modified from time
to time.
"PRIME RATE" means the rate of interest per annum that GSCP announces
from time to time as its prime lending rate, as in effect from time to time. The
Prime Rate is a reference rate and does not necessarily represent the lowest or
best rate actually charged to any customer. GSCP or any other Lender may make
commercial loans or other loans at rates of interest at, above or below the
Prime Rate.
"PRINCIPAL OFFICE" means, for each of Administrative Agent, Swing Line
Lender and Issuing Bank, such Person's "Principal Office" as set forth on
Appendix B, or such other office as such Person may from time to time designate
in writing to Company, Administrative Agent and each Lender.
"PROJECTIONS" as defined in Section 4.9.
"PRO RATA SHARE" means (i) with respect to all payments, computations
and other matters relating to the Delayed Draw Loan of any Lender, the
percentage obtained by dividing (a) the Delayed Draw Loan Exposure of that
Lender by (b) the aggregate Delayed Draw Loan Exposure of all Lenders; (ii) with
respect to all payments, computations and other matters relating to the Term
Loan of any Lender, the percentage obtained by
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dividing (a) the Term Loan Exposure of that Lender by (b) the aggregate Term
Loan Exposure of all Lenders; and (iii) with respect to all payments,
computations and other matters relating to the Revolving Commitment or Revolving
Loans of any Lender or any Letters of Credit issued or participations purchased
therein by any Lender or any participations in any Swing Line Loans purchased by
any Lender, the percentage obtained by dividing (a) the Revolving Exposure of
that Lender by (b) the aggregate Revolving Exposure of all Lenders. For all
other purposes with respect to each Lender, "Pro Rata Share" means the
percentage obtained by dividing (A) an amount equal to the sum of the Delayed
Draw Loan Exposure, the Term Loan Exposure and the Revolving Exposure of that
Lender, by (B) an amount equal to the sum of the aggregate Delayed Draw Loan
Exposure, the aggregate Term Loan Exposure and the aggregate Revolving Exposure
of all Lenders.
"REAL ESTATE ASSET" means, at any time of determination, any interest
(fee, leasehold or otherwise) then owned by any Credit Party in any real
property.
"RECORD DOCUMENT" means, with respect to any Leasehold Property, (i)
the lease evidencing such Leasehold Property or a memorandum thereof, executed
and acknowledged by the owner of the affected real property, as lessor, or (ii)
if such Leasehold Property was acquired or subleased from the holder of a
Recorded Leasehold Interest, the applicable assignment or sublease document,
executed and acknowledged by such holder, in each case in form sufficient to
give such constructive notice upon recordation and otherwise in form reasonably
satisfactory to Collateral Agent.
"RECORDED LEASEHOLD INTEREST" means a Leasehold Property with respect
to which a Record Document has been recorded in all places necessary or
desirable, in Administrative Agent's reasonable judgment, to give constructive
notice of such Leasehold Property to third-party purchasers and encumbrancers of
the affected real property.
"REFUNDED SWING LINE LOANS" as defined in Section 2.5(b)(iv).
"REGISTER" as defined in Section 2.8(b).
"REGULATION D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"RELATED AGREEMENTS" means, collectively, the Merger Agreement and the
Senior Subordinated Note Documents.
"RELATED FUND" means, with respect to any Lender that is an investment
fund, any other investment fund that invests in commercial loans and that is
managed or advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
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"RELEASE" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of any Hazardous Material into the indoor or outdoor
environment (including the abandonment or disposal of any barrels, containers or
other closed receptacles containing any Hazardous Material), including the
migration of any Hazardous Material through the air, soil, surface water or
groundwater.
"REPLACEMENT LENDER" as defined in Section 2.24.
"REQUIRED PREPAYMENT DATE" as defined in Section 2.16(c).
"REQUISITE CLASS LENDERS" means, at any time of determination, (i) for
the Class of Lenders having Delayed Draw Loan Exposure, Lenders holding more
than 50% of the aggregate Delayed Draw Loan Exposure of all Lenders; (ii) for
the Class of Lenders having Term Loan Exposure, Lenders holding more than 50% of
the aggregate Term Loan Exposure of all Lenders; and (iii) for the Class of
Lenders having Revolving Exposure, Lenders holding more than 50% of the
aggregate Revolving Exposure of all Lenders.
"REQUISITE LENDERS" means one or more Lenders having or holding
Delayed Draw Loan Exposure, Term Loan Exposure and/or Revolving Exposure and
representing more than 50% of the sum of (i) the aggregate Delayed Draw Loan
Exposure of all Lenders, (ii) the aggregate Term Loan Exposure of all Lenders
and (iii) the aggregate Revolving Exposure of all Lenders.
"RESTRICTED JUNIOR PAYMENT" means, in respect of any Person (i) any
dividend or other distribution, direct or indirect, on account of any Capital
Stock of such Person now or hereafter outstanding; (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any Capital Stock of such Person now or hereafter
outstanding; (iii) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares of any
Capital Stock of such Person now or hereafter outstanding; (iv) management or
similar fees payable to Sponsors or any of its Affiliates and (v) any payment or
prepayment of principal of, premium, if any, or interest on, or redemption,
purchase, retirement, defeasance (including in-substance or legal defeasance),
sinking fund or similar payment with respect to any Subordinated Indebtedness,
in each of cases (i) through (v) except a dividend, distribution, payment or
prepayment payable solely in Capital Stock of such Person.
"REVOLVING COMMITMENT" means the commitment of a Lender to make or
otherwise fund any Revolving Loan and to acquire participations in Letters of
Credit hereunder and "REVOLVING COMMITMENTS" means such commitments of all
Lenders in the aggregate. The amount of each Lender's Revolving Commitment, if
any, is set forth on Appendix A-3 or in the applicable Assignment Agreement,
subject to any adjustment or reduction pursuant to the terms and conditions
hereof. The aggregate amount of the Revolving Commitments as of the Closing Date
is $100,000,000.
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"REVOLVING COMMITMENT PERIOD" means the period from the Closing Date
to but excluding the Revolving Commitment Termination Date.
"REVOLVING COMMITMENT TERMINATION DATE" means the earliest to occur of
(i) August 31, 2002, if the Term Loans are not made on or before that date; (ii)
the sixth anniversary of the Closing Date, (iii) the date the Revolving
Commitments are permanently reduced to zero pursuant to Section 2.14(b) or 2.15,
and (iv) the date of the termination of the Revolving Commitments pursuant to
Section 8.1.
"REVOLVING EXPOSURE" means, with respect to any Lender as of any date
of determination, (i) prior to the termination of the Revolving Commitments,
that Lender's Revolving Commitment; and (ii) after the termination of the
Revolving Commitments, the sum of (a) the aggregate outstanding principal amount
of the Revolving Loans of that Lender, (b) the aggregate amount of all
participations by that Lender in any outstanding Letters of Credit or any
unreimbursed drawing under any Letter of Credit, (c) in the case of Swing Line
Lender, the aggregate outstanding principal amount of all Swing Line Loans (net
of any participations therein by other Lenders), and (d) the aggregate amount of
all participations therein by that Lender in any outstanding Swing Line Loans.
"REVOLVING LOAN" means a Loan made by a Lender to Company pursuant to
Section 2.3.
"REVOLVING LOAN NOTE" means a promissory note in the form of Exhibit
B-3, as it may be amended, supplemented or otherwise modified from time to time.
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw
Hill Corporation.
"SECURED PARTIES" has the meaning assigned to that term in the Pledge
and Security Agreement.
"SECURITIES" means any stock, shares, partnership interests, voting
trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time, and any successor statute.
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"SELLERS" means Atlantic Equity Partners International II, L.P.,
J.P. Morgan Partners (SBIC), LLC, BPC Equity, LLC and certain members of
Company's management.
"SENIOR SUBORDINATED NOTE DOCUMENTS" means the Senior Subordinated
Note Indenture and the Senior Subordinated Notes, as each such document may be
amended, restated, supplemented or otherwise modified from time to time to the
extent permitted under Section 6.16.
"SENIOR SUBORDINATED NOTE INDENTURE" means the indenture pursuant to
which the Senior Subordinated Notes will be issued, in the form delivered to the
Agents and Lenders prior to the Closing Date, as any such indenture may
thereafter be amended, restated, supplemented or otherwise modified from time to
time to the extent permitted under Section 6.16.
"SENIOR SUBORDINATED NOTES" means the Senior Subordinated Notes of
Company in the aggregate principal amount not to exceed $350,000,000 at any time
outstanding (plus (i) any such notes issued as payment of interest on Senior
Subordinated Notes and (ii) any additional subordinated notes issued as
permitted by clause (ii) or (iii) of Section 6.1(c)) and issued pursuant to the
Senior Subordinated Note Indenture, with such changes thereto when executed as
are permitted under Section 6.16 and as such notes may thereafter be amended,
restated, supplemented or otherwise modified from time to time to the extent
permitted under Section 6.16.
"SOLVENCY CERTIFICATE" means a Solvency Certificate of the Chief
Financial Officer of Holdings substantially in the form of Exhibit G-2.
"SOLVENT" means, with respect to any Credit Party, that as of the date
of determination both (i) (a) the sum of such Credit Party's debt (including
contingent liabilities) does not exceed the present fair saleable value of all
of such Credit Party's assets; (b) such Credit Party's capital is not
unreasonably small in relation to its business or with respect to any
transaction then contemplated; and (c) such Person has not incurred and does not
intend to incur, or believe (nor should it reasonably believe) that it will
incur, debts beyond its ability to pay such debts as they become due (whether at
maturity or otherwise); and (ii) such Person is "solvent" within the meaning
given that term and similar terms under applicable laws relating to fraudulent
transfers and conveyances. For purposes of this definition, the amount of any
contingent liability at any time shall be computed as the amount that, in light
of all of the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability
(irrespective of whether such contingent liabilities meet the criteria for
accrual under Statement of Financial Accounting Standard No. 5).
"SPONSORS" means any of GS Capital Partners 2000, L.P.,
GS Capital Partners 2000 Offshore, L.P., GS Capital Partners 2000 GmbH &
Co., Beteiligungs KG, GS Capital Partners 2000 Employee Fund, L.P., Stone
Street Fund 2000, L.P., J.P. Morgan Partners (BHCA), L.P., J.P. Morgan
Partners Global Investors, L.P., J.P. Morgan Partners Global Investors
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(Cayman), L.P., J.P. Morgan Partners Global Investors (Cayman) II, L.P.,
J.P. Morgan Partners Global Investors A, L.P. and other strategic investors
acceptable to Syndication Agent.
"STOCKHOLDER AGREEMENTS" means (i) a stockholders agreement, dated as
of the Closing Date, among Holdings and the Sponsors and (ii) a stockholders
agreement, dated as of the Closing Date, among Holdings and certain employees of
Holdings and its Subsidiaries parties thereto.
"SUBJECT TRANSACTION" as defined in Section 6.8(d).
"SUBORDINATED INDEBTEDNESS" means the Senior Subordinated Notes and
any other Indebtedness that is subordinate in right of payment and all other
respects to the Obligations on subordination terms that are no less favorable to
the Agents or Lenders in any respect than the subordination and related terms
set forth in the Senior Subordinated Note Documents as in effect on the date
hereof.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence of
any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof; PROVIDED, in determining the percentage of ownership interests of any
Person controlled by another Person, no ownership interest in the nature of a
"qualifying share" of the former Person shall be deemed to be outstanding.
"SURVIVING CAPITAL LEASES" mean the Capital Leases of Company that
survive the consummation of the Merger in an aggregate amount not to exceed
$16,900,000 as designated in Schedule 6.1(g).
"SURVIVING INDEBTEDNESS" means the Surviving Capital Leases, the
Surviving IRBs, and any of the 2004 Notes and the 2006 Notes that remain
outstanding as of the Closing Date, in each case as disclosed in and subject to
the terms and conditions of Schedule 6.1(g).
"SURVIVING IRBS" means the Nevada Industrial Revenue Bonds (the
"IRBS") of Company that survive the consummation of the Merger in an aggregate
amount not to exceed $3,000,000 as designated in Schedule 6.1(g).
"SWING LINE LENDER" as defined in the preamble..
"SWING LINE LOAN" means a Loan made by Swing Line Lender to Company
pursuant to Section 2.3.
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"SWING LINE NOTE" means a promissory note in the form of Exhibit B-4,
as it may be amended, supplemented or otherwise modified from time to time.
"SWING LINE SUBLIMIT" means the lesser of (i) $10,000,000, and (ii)
the aggregate unused amount of Revolving Commitments then in effect.
"SYNDICATION AGENT" as defined in the preamble.
"TAX" means any present or future tax, levy, impost, duty, assessment,
charge, fee, deduction or withholding of any nature and whatever called, by any
Governmental Authority, on whomsoever and wherever imposed, levied, collected,
withheld or assessed; PROVIDED, "Tax on the overall net income" of a Person
shall be construed as a reference to a tax imposed by the jurisdiction in which
that Person is organized or in which that Person's applicable principal office
(and/or, in the case of a Lender, its lending office) is located or in which
that Person (and/or, in the case of a Lender, its lending office) is deemed to
be doing business on all or part of the net income, profits or gains (whether
worldwide, or only insofar as such income, profits or gains are considered to
arise in or to relate to a particular jurisdiction, or otherwise) of that Person
(and/or, in the case of a Lender, its applicable lending office).
"TERM LOAN" means a Loan made by a Lender to Company pursuant to
Section 2.1.
"TERM LOAN COMMITMENT" means the commitment of a Lender to make or
otherwise fund any Term Loan hereunder, and "TERM LOAN COMMITMENTS" means such
commitments of all Lenders in the aggregate. The amount of each Lender's Term
Loan Commitment, if any, is set forth in Appendix A-1. The aggregate Term Loan
Commitments shall equal the difference between (i) $330,000,000 and (ii) the
aggregate principal amount outstanding, as of the Closing Date, of Company's 11%
Senior Subordinated Notes Due 2007.
"TERM LOAN EXPOSURE" means, with respect to any Lender, as of any date
of determination, the outstanding principal amount of the Term Loan of such
Lender; PROVIDED, at any time prior to the making of the Term Loan, the Term
Loan Exposure of any Lender shall be equal to such Lender's Term Loan
Commitment.
"TERM LOAN INSTALLMENT" as defined in Section 2.13(a).
"TERM LOAN INSTALLMENT DATE" as defined in Section 2.13(a).
"TERM LOAN MATURITY DATE" means the earlier of (i) the eighth
anniversary of the Closing Date,{ }and (ii) the date that all Term Loans shall
become due and payable in full hereunder, whether by acceleration or otherwise.
"TERM LOAN NOTE" means a promissory note in the form of Exhibit B-1,
as it may be amended, supplemented or otherwise modified from time to time.
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"TERMINATED LENDER" as defined in Section 2.24.
"TOTAL UTILIZATION OF REVOLVING COMMITMENTS" means, as at any date of
determination, the sum of (i) the aggregate principal amount of all outstanding
Revolving Loans (other than Revolving Loans made for the purpose of repaying any
Refunded Swing Line Loans or reimbursing Issuing Bank for any amount drawn under
any Letter of Credit, but not yet so applied), (ii) the aggregate principal
amount of all outstanding Swing Line Loans and (iii) the Letter of Credit Usage.
"TRANSACTION COSTS" means the fees, costs and expenses payable by
Holdings, Company or any of Company's Subsidiaries on or before the Closing Date
in connection with the transactions contemplated by the Credit Documents and the
Related Agreements.
"TYPE OF LOAN" means (i) with respect to either Term Loans, Delayed
Draw Loans or Revolving Loans, a Base Rate Loan or a Eurodollar Rate Loan, and
(ii) with respect to Swing Line Loans, a Base Rate Loan.
"UCC" means the Uniform Commercial Code (or any similar or equivalent
legislation) as in effect in any applicable jurisdiction.
"UNADJUSTED EURODOLLAR RATE COMPONENT" means that component of the
interest costs to Company in respect of a Eurodollar Rate Loan that is based
upon the rate obtained pursuant to clause (i) of the definition of Adjusted
Eurodollar Rate.
"US LENDER" means each Lender that is a United States Person (as such
term is defined in Section 7701(a)(30) of the Internal Revenue Code) for U.S.
federal income tax purposes.
"VOTING STOCK" of a Person means all classes of Capital Stock or other
interests of such Person then outstanding which are normally entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof.
"WAIVABLE MANDATORY PREPAYMENT" as defined in Section 2.16(c).
"WHOLLY-OWNED" means, in respect of any Subsidiary of any Person, that
all Capital Stock of such Subsidiary (other than Capital Stock in the nature of
directors' qualifying shares required by applicable law) is owned beneficially
and as of record by such Person or one more Wholly-Owned Subsidiaries of such
Person.
1.2. ACCOUNTING TERMS. Except as otherwise expressly provided herein, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP as in effect from time to time; PROVIDED, if
Company notifies Administrative Agent that Company requests an amendment to any
provision hereof to eliminate the effect of any change occurring after the date
hereof in GAAP or in the application thereof to
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the operation of such provisions, regardless of whether any such notice is given
before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP in effect and applied
immediately before such change shall have become effective until such notice
shall have been withdrawn or such provision amended in accordance herewith.
Subject to the foregoing, calculations in connection with the definitions,
covenants and other provisions hereof shall utilize accounting principles and
policies in conformity with those used to prepare the Historical Financial
Statements.
1.3.INTERPRETATION, ETC. Any of the terms defined herein may, unless the context
otherwise requires, be used in the singular or the plural, depending on the
reference. References herein to any Section, Appendix, Schedule or Exhibit shall
be to a Section, an Appendix, a Schedule or an Exhibit, as the case may be,
hereof unless otherwise specifically provided. The use herein of the word
"include" or "including", when following any general statement, term or matter,
shall not be construed to limit such statement, term or matter to the specific
items or matters set forth immediately following such word or to similar items
or matters, whether or not nonlimiting language (such as "without limitation" or
"but not limited to" or words of similar import) is used with reference thereto,
but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.
Except as otherwise specifically provided, all reference herein to any Person
shall mean such Person and its permitted successors and assigns and all
references herein to any document, instrument or agreement shall mean such
document, instrument or agreement as amended, supplemented or modified from time
to time, to the extent not prohibited by this Agreement.
SECTION 2. LOANS AND LETTERS OF CREDIT
2.1. TERM LOANS.
(a) LOAN COMMITMENTS. Subject to the terms and conditions hereof, each Lender
severally agrees to make, on the Closing Date, a Term Loan to Company in an
amount equal to such Lender's Term Loan Commitment. Company may make only one
borrowing under each Lender's Term Loan Commitment which shall be on the Closing
Date. Any amount borrowed under this Section 2.1(a) and subsequently repaid or
prepaid may not be reborrowed. Subject to Sections 2.14(a) and 2.15, all amounts
owed hereunder with respect to the Term Loans shall be paid in full no later
than the Term Loan Maturity Date. Each Lender's Term Loan Commitment shall
terminate immediately and without further action on the Closing Date after
giving effect to the funding of such Lender's Term Loan Commitment on such date.
(b) BORROWING MECHANICS FOR TERM LOANS.
(i) Company shall deliver to Administrative Agent a fully executed Funding
Notice no later than 11:00 a.m. (New York City time) on (A) in the case of Base
Rate Loans, the day prior to the Closing Date and (B) in the case of
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Eurodollar Loans, the third day prior to the Closing Date. Promptly upon receipt
by Administrative Agent of such certificate, Administrative Agent shall notify
each Lender of the proposed borrowing.
(ii) Each Lender shall make its Term Loan available to Administrative Agent not
later than 12:00 p.m. (New York City time) on the Closing Date, by wire transfer
of same day funds in Dollars, at Administrative Agent's Principal Office. Upon
satisfaction or waiver of the conditions precedent specified herein,
Administrative Agent shall make the proceeds of the Term Loans available to
Company on the Closing Date by causing an amount of same day funds in Dollars
equal to the proceeds of all such Loans received by Administrative Agent from
Lenders to be credited to the account of Company at Administrative Agent's
Principal Office or to such other account as may be designated in writing to
Administrative Agent by Company.
2.2. DELAYED DRAW LOANS
(a) DELAYED DRAW COMMITMENTS. During the Delayed Draw Commitment Period, each
Lender severally agrees to make one or more Delayed Draw Loans in an amount up
to but not exceeding such Lender's Delayed Draw Commitment. Any amount borrowed
under this Section 2.2(a) and subsequently repaid or prepaid may not be
reborrowed. Subject to Sections 2.14(a) and 2.15, all amounts owed hereunder
with respect to the Delayed Draw Loans shall be paid in full no later than the
Delayed Draw Loan Maturity Date. Each Lender's Delayed Draw Commitment shall
expire on the Delayed Draw Commitment Termination Date.
(b) BORROWING MECHANICS FOR DELAYED DRAW LOANS.
(i) Delayed Draw Loans shall be made in an aggregate minimum amount of
$5,000,000 and integral multiples of $500,000 in excess of that amount.
(ii) Whenever Company desires that Lenders make Delayed Draw Loans, Company
shall deliver to Administrative Agent a fully executed and delivered Funding
Notice no later than 11:00 a.m. (New York City time) at least three Business
Days in advance of the proposed Credit Date in the case of a Eurodollar Rate
Loan, and at least one Business Day in advance of the proposed Credit Date in
the case of a Delayed Draw Loan that is a Base Rate Loan. For purposes of this
Section 2.2(b)(ii), no Funding Notice shall be deemed to be fully executed and
delivered unless such Funding Notice includes certification that the proceeds of
the drawing shall be used only to pay Permitted Acquisition Expenses on the date
of such drawing. Except as otherwise provided herein, a Funding Notice for a
Delayed Draw Loan that is a Eurodollar Rate Loan shall be irrevocable on and
after the related Interest Rate Determination Date, and Company shall be bound
to make a borrowing in accordance therewith.
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(iii) Notice of receipt of each Funding Notice in respect of Delayed Draw Loans,
together with the amount of each Lender's Pro Rata Share thereof, if any,
together with the applicable interest rate, shall be provided by Administrative
Agent to each applicable Lender by telefacsimile with reasonable promptness, but
(provided Administrative Agent shall have received such notice by 11:00 a.m.
(New York City time)) not later than 3:00 p.m. (New York City time) on the same
day as Administrative Agent's receipt of such Funding Notice from Company.
(iv) Each Lender shall make the amount of its Delayed Draw Loan available to
Administrative Agent not later than 12:00 p.m. (New York City time) on the
applicable Credit Date by wire transfer of same day funds in Dollars, at
Administrative Agent's Principal Office. Except as provided herein, upon
satisfaction or waiver of the conditions precedent specified herein,
Administrative Agent shall make the proceeds of such Delayed Draw Loans
available to Company on the applicable Credit Date by causing an amount of same
day funds in Dollars equal to the proceeds of all such Delayed Draw Loans
received by Administrative Agent from Lenders to be credited to an account
designated in writing to Administrative Agent by Company.
2.3. REVOLVING LOANS.
(a) REVOLVING COMMITMENTS. During the Revolving Commitment Period, subject to
the terms and conditions hereof, each Lender severally agrees to make Revolving
Loans to Company in the aggregate amount up to but not exceeding such Lender's
Revolving Commitment; PROVIDED, after giving effect to the making of any
Revolving Loans in no event shall the Total Utilization of Revolving Commitments
exceed the Revolving Commitments then in effect. Amounts borrowed pursuant to
this Section 2.3(a) may be repaid and reborrowed during the Revolving Commitment
Period. Each Lender's Revolving Commitment shall expire on the Revolving
Commitment Termination Date and all Revolving Loans and all other amounts owed
hereunder with respect to the Revolving Loans and the Revolving Commitments
shall be paid in full no later than such date.
(b) BORROWING MECHANICS FOR REVOLVING LOANS.
(i) Except pursuant to Section 2.4(d) and 2.5(b)(iv), Revolving Loans that are
Base Rate Loans shall be made in an aggregate minimum amount of $1,000,000 and
integral multiples of $1,000,000 in excess of that amount, and Revolving Loans
that are Eurodollar Rate Loans shall be in an aggregate minimum amount of
$5,000,000 and integral multiples of $1,000,000 in excess of that amount.
(ii) Whenever Company desires that Lenders make Revolving Loans, Company shall
deliver (subject to 3.2(b)) to Administrative Agent a fully executed and
delivered Funding Notice no later than 11:00 a.m. (New York City time) at
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least three Business Days in advance of the proposed Credit Date in the case of
a Eurodollar Rate Loan, and at least one Business Day in advance of the proposed
Credit Date in the case of a Revolving Loan that is a Base Rate Loan. Except as
otherwise provided herein, a Funding Notice for a Revolving Loan that is a
Eurodollar Rate Loan shall be irrevocable on and after the related Interest Rate
Determination Date, and Company shall be bound to make a borrowing in accordance
therewith.
(iii) Notice of receipt of each Funding Notice in respect of Revolving Loans,
together with the amount of each Lender's Pro Rata Share thereof, if any,
together with the applicable interest rate, shall be provided by Administrative
Agent to each applicable Lender by telefacsimile with reasonable promptness, but
(provided Administrative Agent shall have received such notice by 11:00 a.m.
(New York City time)) not later than 3:00 p.m. (New York City time) on the same
day as Administrative Agent's receipt of such Funding Notice from Company.
(iv) Each Lender shall make the amount of its Revolving Loan available to
Administrative Agent not later than 12:00 p.m. (New York City time) on the
applicable Credit Date by wire transfer of same day funds in Dollars, at
Administrative Agent's Principal Office. Except as provided herein, upon
satisfaction or waiver of the conditions precedent specified herein,
Administrative Agent shall make the proceeds of such Revolving Loans available
to Company on the applicable Credit Date by causing an amount of same day funds
in Dollars equal to the proceeds of all such Revolving Loans received by
Administrative Agent from Lenders to be credited to an account designated in
writing to Administrative Agent by Company.
2.4 ISSUANCE OF LETTERS OF CREDIT AND PURCHASE OF PARTICIPATIONS THEREIN.
(a) GENERAL. Subject to the terms and conditions set forth herein, Company (or
any other Credit Party, so long as Company is a co-obligor or co-applicant in
respect of each Letter of Credit issued for the account of such other Credit
Party on terms reasonably acceptable to Administrative Agent and Issuing Bank)
may request the issuance of Letters of Credit for its own account, such Letter
of Credit to be in a form reasonably acceptable to Administrative Agent and
Issuing Bank, at any time and from time to time during the Revolving Commitment
Period. In the event of any inconsistency between the terms and conditions of
this Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by Company to, or entered into by
Company with, Issuing Bank relating to any Letter of Credit, the terms and
conditions of this Agreement shall control.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN CONDITIONS.
To request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), Company shall hand deliver
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or telecopy (or transmit by electronic communication, if arrangements for doing
so have been approved by Issuing Bank) to Issuing Bank and Administrative Agent
(reasonably, but in any case at least two Business Days, in advance of the
requested date of issuance, amendment, renewal or extension) a fully executed
Issuance Notice requesting the issuance of a Letter of Credit, or identifying
the Letter of Credit to be amended, renewed or extended, and specifying the date
of issuance, amendment, renewal or extension (which shall be a Business Day),
the date on which such Letter of Credit is to expire (which shall comply with
paragraph (c) of this Section 2.4), the amount of such Letter of Credit, the
name and address of the beneficiary thereof and such other information as shall
be necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by Issuing Bank, Company also shall submit a letter of credit
application on Issuing Bank's standard form in connection with any request for a
Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit Company shall be deemed to represent and warrant that), after
giving effect to such issuance, amendment, renewal or extension (i) the Letter
of Credit Usage shall not exceed the Letter of Credit Sublimit and (ii) the
Total Utilization of Revolving Commitments shall not exceed the Revolving
Commitments then in effect. All Letters of Credit shall be denominated in
Dollars and the stated amount of each Letter of Credit shall not be less than
$100,000 or such lesser amount as is acceptable to Issuing Bank in its sole
discretion.
(c) EXPIRATION DATE. Each Letter of Credit shall expire at or prior to the close
of business on the earlier of (i) the date one year after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (ii) the date that is
five Business Days prior to the Revolving Commitment Termination Date.
(d) PARTICIPATIONS. By the issuance, renewal or extension of a Letter of Credit
(or an amendment to a Letter of Credit increasing the amount thereof) and
without any further action on the part of Issuing Bank or the Lenders, Issuing
Bank hereby grants to each Lender, and each Lender hereby acquires from Issuing
Bank, a participation in such Letter of Credit equal to such Lender's Pro Rata
Share (with respect to the Revolving Commitments) of the aggregate amount
available to be drawn under such Letter of Credit. In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and unconditionally
agrees to pay to Administrative Agent, for the account of Issuing Bank, such
Lender's Pro Rata Share (with respect to the Revolving Commitments) of each
Letter of Credit Disbursement made by Issuing Bank and not reimbursed by Company
on the date due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to Company for any reason. Each
Lender acknowledges and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or reduction or termination of the
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.
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(e) REIMBURSEMENT. If Issuing Bank shall make any Letter of Credit Disbursement
in respect of a Letter of Credit, Company shall reimburse such Letter of Credit
Disbursement by paying to Administrative Agent an amount equal to such Letter of
Credit Disbursement not later than 2:30 p.m., New York City time, on the date
that such Letter of Credit Disbursement is made, if Company shall have received
notice of such Letter of Credit Disbursement prior to 10:00 a.m., New York City
time, on such date, or, if such notice has not been received by Company prior to
such time on such date, then not later than 2:30 p.m., New York City time, on
(i) the Business Day that Company receives such notice, if such notice is
received prior to 10:00 a.m., New York City time, on the day of receipt, or (ii)
the Business Day immediately following the day that Company receives such
notice, if such notice is not received prior to such time on the day of receipt;
PROVIDED, Company may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.3 or Section 2.5 that such payment be
financed with a Revolving Loan that is a Base Rate Loan or a Swing Line Loan in
an equivalent amount and, to the extent so financed, Company's obligation to
make such payment shall be discharged and replaced by the resulting Revolving
Loan or Swing Line Loan. If Company fails to make such payment when due,
Administrative Agent shall notify each Lender of the applicable Letter of Credit
Disbursement, the payment then due from Company in respect thereof and such
Lender's Pro Rata Share thereof. Following receipt of such notice, each Lender
shall pay to Administrative Agent its Pro Rata Share of the payment then due
from Company, in the same manner as provided in Section 2.5 with respect to
Loans made by such Lender (and Section 2.5 shall apply, MUTATIS MUTANDIS, to the
payment obligations of the Lenders), and Administrative Agent shall promptly pay
to Issuing Bank the amounts so received by it from the Lenders. Promptly
following receipt by Administrative Agent of any payment from Company pursuant
to this paragraph, Administrative Agent shall distribute such payment to Issuing
Bank or, to the extent that Lenders have made payments pursuant to this
paragraph to reimburse Issuing Bank, then to such Lenders and Issuing Bank as
their interests may appear. Any payment made by a Lender pursuant to this
paragraph to reimburse Issuing Bank for any Letter of Credit Disbursement (other
than the funding of Revolving Loans as contemplated above) shall not constitute
a Loan and shall not relieve Company of its obligation to reimburse such Letter
of Credit Disbursement.
(f) OBLIGATIONS ABSOLUTE. The Company's obligation to reimburse Letter of Credit
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right
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of setoff against, Company's obligations hereunder. Neither Administrative
Agent, the Lenders nor Issuing Bank, nor any of their Affiliates, shall have any
liability or responsibility by reason of or in connection with the issuance or
transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the reasonable control of Issuing Bank;
PROVIDED, the foregoing shall not be construed to excuse Issuing Bank from
liability to Company to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by Company
to the extent permitted by applicable law) suffered by Company that are caused
by Issuing Bank's failure to exercise care when determining whether drafts and
other documents presented under a Letter of Credit comply with the terms
thereof. The parties hereto expressly agree that, in the absence of gross
negligence or willful misconduct on the part of Issuing Bank (as finally
determined by a court of competent jurisdiction), Issuing Bank shall be deemed
to have exercised care in each such determination. In furtherance of the
foregoing and without limiting the generality thereof, the parties agree that,
with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, Issuing Bank may,
in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) DISBURSEMENT PROCEDURES. Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment
under a Letter of Credit. Issuing Bank shall promptly notify Administrative
Agent and Company by telephone (confirmed by telecopy) of such demand for
payment and whether Issuing Bank has made or will make a Letter of Credit
Disbursement thereunder; PROVIDED, any failure to give or delay in giving such
notice shall not relieve Company of its obligation to reimburse Issuing Bank and
the Lenders with respect to any such Letter of Credit Disbursement.
(h) INTERIM INTEREST. If Issuing Bank shall make any Letter of Credit
Disbursement, then, unless Company shall reimburse such Letter of Credit
Disbursement in full on the date such Letter of Credit Disbursement is made, the
unpaid amount thereof shall bear interest, for each day from and including the
date such Letter of Credit Disbursement is made to but excluding the date that
Company reimburses such Letter of Credit Disbursement, at the rate per annum
then applicable to Revolving Loans that are Base Rate Loans; PROVIDED, if
Company fails to reimburse such Letter of Credit Disbursement when due pursuant
to paragraph (e) of this Section, then such unpaid amount shall bear interest at
a rate which is 2% per annum in excess of the rate of interest otherwise
applicable to Revolving Loans that are Base Rate Loans. Interest accrued
pursuant to this paragraph
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shall be for the account of Issuing Bank, except that interest accrued on and
after the date of payment by any Lender pursuant to paragraph (e) of this
Section to reimburse Issuing Bank shall be for the account of such Lender to the
extent of such payment.
(i) REPLACEMENT OF ISSUING BANK; ADDITIONAL ISSUING BANKS. (i) Issuing Bank may
be replaced at any time by written agreement among Company, Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank. Administrative
Agent shall notify the Lenders of any such replacement of Issuing Bank. At the
time any such replacement shall become effective, Company shall pay all unpaid
fees accrued for the account of the replaced Issuing Bank. From and after the
effective date of any such replacement, (A) the successor Issuing Bank shall
have all the rights and obligations of Issuing Bank under this Agreement with
respect to Letters of Credit to be issued thereafter and (B) references herein
to the term "Issuing Bank" shall be deemed to refer to such successor or to any
previous Issuing Bank, or to such successor and all previous Issuing Banks, as
the context shall require. After the replacement of an Issuing Bank hereunder,
the replaced Issuing Bank shall remain a party hereto and shall continue to have
all the rights and obligations of an Issuing Bank under this Agreement with
respect to Letters of Credit issued by it prior to such replacement, but shall
not be required to issue additional Letters of Credit. A Revolving Lender may
become an Issuing Bank pursuant to a written agreement among Company,
Administrative Agent and such Revolving Lender (an "ADDITIONAL ISSUING BANK"),
but only if the Issuing Bank has an insufficiently high credit rating for the
issuance of the requested Letter of Credit, whereupon Administrative Agent shall
notify other Revolving Lenders of such Additional Issuing Bank. Upon becoming an
Additional Issuing Bank, all references to "Issuing Bank" herein shall be deemed
to include such Additional Issuing Bank for the purposes of such Letters of
Credit.
(j) CASH COLLATERALIZATION. If any Event of Default shall occur and be
continuing, on the Business Day that Company receives notice from Administrative
Agent or the Requisite Class Lenders (or, if the maturity of the Loans has been
accelerated, Issuing Bank) demanding the deposit of cash collateral pursuant to
this paragraph, Company shall deposit in an account with Administrative Agent,
in the name of Administrative Agent and for the benefit of the Lenders, an
amount in cash equal to the Letter of Credit Exposure as of such date plus any
accrued and unpaid interest thereon; PROVIDED, the obligation to deposit such
cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any kind,
upon the occurrence of any Event of Default with respect to Company described in
Section 8.1(f) or 8.1(g). Such deposit shall be held by Administrative Agent as
collateral for the payment and performance of the obligations of Company under
this Agreement. Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than any
interest earned on the investment of such deposits, which investments shall be
made at the option and sole discretion of Administrative Agent and at Company's
risk and expense, such deposits shall not bear interest.
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Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by Administrative Agent to
reimburse Issuing Bank for Letter of Credit Disbursements for which it has not
been reimbursed and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of Company at such time or, if the
maturity of the Loans has been accelerated (but subject to the consent of
Issuing Bank), be applied to satisfy other obligations of Company under this
Agreement. If Company is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be promptly returned to Company after
all Events of Default have been cured or waived.
2.5. SWING LINE LOANS.
(a) SWING LINE LOANS COMMITMENT. During the Revolving Commitment Period, subject
to the terms and conditions hereof, Swing Line Lender hereby agrees to make
Swing Line Loans to Company in the aggregate amount up to but not exceeding the
Swing Line Sublimit; PROVIDED, after giving effect to the making of any Swing
Line Loan, in no event shall the Total Utilization of Revolving Commitments
exceed the Revolving Commitments then in effect. Amounts borrowed pursuant to
this Section 2.5 may be repaid and reborrowed during the Revolving Commitment
Period. Swing Line Lender's Revolving Commitment shall expire on the Revolving
Commitment Termination Date and Company shall repay the then unpaid principal
amount of each Swing Line Loan and any accrued and unpaid interest thereon as of
the earlier of (i) the Revolving Commitment Termination Date, (ii) any date on
which Company is borrowing Revolving Loans or Delayed Draw Loans and (iii) the
first date at least two Business Days after such Swing Line Loan is made that is
the 15th or last day of any calendar month.
(b) BORROWING MECHANICS FOR SWING LINE LOANS.
(i) Swing Line Loans shall be made in an aggregate minimum amount of $1,000,000
and integral multiples of $100,000 in excess of that amount.
(ii) Whenever Company desires that Swing Line Lender make a Swing Line Loan,
Company shall deliver to Swing Line Lender, with a copy to Agents (subject to
Section 3.2(b)) a Funding Notice no later than 12:00 p.m. (New York City time)
on the proposed Credit Date.
(iii) Swing Line Lender shall make the amount of its Swing Line Loan available
to Administrative Agent not later than 2:00 p.m. (New York City time) on the
applicable Credit Date by wire transfer of same day funds in Dollars, at
Administrative Agent's Principal Office. Except as provided herein, upon
satisfaction or waiver of the conditions precedent specified herein,
Administrative Agent shall make the proceeds of such Swing Line Loans available
to Company on the applicable Credit Date by causing an amount of same day funds
in Dollars equal to the proceeds of
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all such Swing Line Loans received by Administrative Agent from Swing Line
Lender to be credited to an account designated in writing to Administrative
Agent by Company.
(iv) With respect to any Swing Line Loans which have not been prepaid by Company
pursuant to Section 2.14 or Section 2.15, Swing Line Lender may at any time in
its sole and absolute discretion, deliver to Administrative Agent (with a copy
to Company), no later than 11:00 a.m. (New York City time) at least one Business
Day in advance of the proposed Credit Date, a notice (which shall be deemed to
be a Funding Notice given by Company) requesting that each Lender holding a
Revolving Commitment make Revolving Loans that are Base Rate Loans to Company on
such Credit Date in an amount equal to the amount of such Swing Line Loans (the
"REFUNDED SWING LINE LOANS") outstanding on the date such notice is given which
Swing Line Lender requests Lenders to prepay. Anything contained in this
Agreement to the contrary notwithstanding, (1) the proceeds of such Revolving
Loans made by the Lenders other than Swing Line Lender shall be immediately
delivered by Administrative Agent to Swing Line Lender (and not to Company) and
applied to repay a corresponding portion of the Refunded Swing Line Loans and
(2) on the day such Revolving Loans are made, Swing Line Lender's Pro Rata Share
of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of
a Revolving Loan made by Swing Line Lender to Company, and such portion of the
Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing
Line Loans and shall no longer be due under the Swing Line Note of Swing Line
Lender but shall instead constitute part of Swing Line Lender's outstanding
Revolving Loans to Company and shall be due under the Revolving Loan Note issued
by Company to Swing Line Lender. Company hereby authorizes Administrative Agent
and Swing Line Lender to charge Company's accounts with Administrative Agent and
Swing Line Lender (up to the amount available in each such account) in order to
immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to
the extent the proceeds of such Revolving Loans made by Lenders, including the
Revolving Loan deemed to be made by Swing Line Lender, are not sufficient to
repay in full the Refunded Swing Line Loans. If any portion of any such amount
paid (or deemed to be paid) to Swing Line Lender should be recovered by or on
behalf of Company from Swing Line Lender in bankruptcy, by assignment for the
benefit of creditors or otherwise, the loss of the amount so recovered shall be
ratably shared among all the Revolving Lenders.
(v) If for any reason Revolving Loans are not made pursuant to Section
2.5(b)(iv) in an amount sufficient to repay any amounts owed to Swing Line
Lender in respect of any outstanding Swing Line Loans on or before the third
Business Day after demand for payment thereof by Swing Line Lender, each Lender
holding a Revolving Commitment shall be deemed to, and hereby agrees to, have
purchased a participation in such outstanding Swing Line Loans, and in an amount
equal to its Pro Rata Share of the applicable unpaid amount together with
accrued interest thereon. Upon one Business
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Day's notice from Swing Line Lender, each Lender holding a Revolving Commitment
shall deliver to Swing Line Lender an amount equal to its respective
participation in the applicable unpaid amount in same day funds at the Principal
Office of Swing Line Lender. In order to evidence such participation each Lender
holding a Revolving Commitment agrees to enter into a participation agreement at
the request of Swing Line Lender in form and substance reasonably satisfactory
to Swing Line Lender. In the event any Lender holding a Revolving Commitment
fails to make available to Swing Line Lender the amount of such Lender's
participation as provided in this paragraph, Swing Line Lender shall be entitled
to recover such amount on demand from such Lender together with interest thereon
for three Business Days at the rate customarily used by Swing Line Lender for
the correction of errors among banks and thereafter at the Base Rate, as
applicable.
(vi) Notwithstanding anything contained herein to the contrary, (1) each
Lender's obligation to make Revolving Loans for the purpose of repaying any
Refunded Swing Line Loans pursuant to the second preceding paragraph and each
Lender's obligation to purchase a participation in any unpaid Swing Line Loans
pursuant to the immediately preceding paragraph shall be absolute and
unconditional and shall not be affected by any circumstance, including without
limitation (A) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against Swing Line Lender, any Credit Party or any
other Person for any reason whatsoever; (B) the occurrence or continuation of a
Default or Event of Default; (C) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or prospects of any
Credit Party; (D) any breach of this Agreement or any other Credit Document by
any party thereto; or (E) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing; and (2) Swing Line Lender shall
not be obligated to make any Swing Line Loans (A) if it has elected not to do so
after the occurrence and during the continuation of a Default or Event of
Default or (B) at a time when a Funding Default exists unless Swing Line Lender
has entered into arrangements satisfactory to it and Company to eliminate Swing
Line Lender's risk with respect to the Defaulting Lender's participation in such
Swing Ling Loan, including by cash collateralizing such Defaulting Lender's Pro
Rata Share of the outstanding Swing Line Loans.
2.6. PRO RATA SHARES; AVAILABILITY OF FUNDS.
(a) PRO RATA SHARES. All Loans shall be made, and all participations purchased,
by Lenders simultaneously and proportionately to their respective Pro Rata
Shares, it being understood that no Lender shall be responsible for any default
by any other Lender in such other Lender's obligation to make a Loan requested
hereunder or purchase a participation required hereby nor shall any Commitment
of any Lender be increased or decreased as a result of a default by any other
Lender in such other Lender's obligation to make a Loan requested hereunder or
purchase a participation required hereby.
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(b) AVAILABILITY OF FUNDS. Unless Administrative Agent shall have been notified
by any Lender prior to the applicable Credit Date that such Lender does not
intend to make available to Administrative Agent the amount of such Lender's
Loan requested on such Credit Date, Administrative Agent may assume that such
Lender has made such amount available to Administrative Agent on such Credit
Date and Administrative Agent may, in its sole discretion, but shall not be
obligated to, make available to Company a corresponding amount on such Credit
Date. If such corresponding amount is not in fact made available to
Administrative Agent by such Lender, Administrative Agent shall be entitled to
recover such corresponding amount on demand from such Lender together with
interest thereon, for each day from such Credit Date until the date such amount
is paid to Administrative Agent, at the customary rate set by Administrative
Agent for the correction of errors among banks for three Business Days and
thereafter at the Base Rate. If such Lender does not pay such corresponding
amount forthwith upon Administrative Agent's demand therefor, Administrative
Agent shall promptly notify Company and Company shall immediately pay such
corresponding amount to Administrative Agent together with interest thereon, for
each day from such Credit Date until the date such amount is paid to
Administrative Agent, at the rate payable hereunder for Base Rate Loans for such
Class of Loans. Nothing in this Section 2.6(b) shall be deemed to relieve any
Lender from its obligation to fulfill its Term Loan Commitment, its Delayed Draw
Commitment, its Revolving Commitment or its obligation to purchase
participations in Letters of Credit pursuant to Section 2.4(d) hereunder or to
prejudice any rights that Company may have against any Lender as a result of any
default by such Lender hereunder.
2.7. USE OF PROCEEDS. The proceeds of the Term Loans made on the Closing Date
shall be applied by Company on the Closing Date to pay Merger Financing
Requirements. The proceeds of the Revolving Loans, Swing Line Loans and Letters
of Credit made after the Closing Date shall be applied by Company for Permitted
Acquisition Expenses, working capital and general corporate purposes of Company
and its Subsidiaries; PROVIDED, HOWEVER, in no event will the proceeds of
Revolving Loans be used for the purposes of prepaying Loans as permitted under
Section 2.14 hereof. The proceeds of the Delayed Draw Loans shall be used solely
to pay Permitted Acquisition Expenses. No portion of the proceeds of any Credit
Extension shall be used in any manner that causes or might cause such Credit
Extension or the application of such proceeds to violate Regulation T,
Regulation U or Regulation X of the Board of Governors of the Federal Reserve
System or any other regulation thereof or to violate the Exchange Act.
2.8. EVIDENCE OF DEBT; REGISTER; LENDERS' BOOKS AND RECORDS; NOTES.
(a) LENDERS' EVIDENCE OF DEBT. Each Lender shall maintain on its internal
records an account or accounts evidencing the Indebtedness of Company to such
Lender, including the amounts of the Loans made by it and each repayment and
prepayment in respect thereof. Any such recordation shall be conclusive and
binding on Company, absent manifest error; PROVIDED, failure
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to make any such recordation, or any error in such recordation, shall not affect
any Lender's Commitments or Company's Obligations in respect of any applicable
Loans; and PROVIDED FURTHER, in the event of any inconsistency between the
Register and any Lender's records, the recordations in the Register shall
govern.
(b) REGISTER. Administrative Agent, acting on behalf of Company, shall maintain
at its Principal Office a register for the recordation of the names and
addresses of Lenders and the Commitments and Loans of each Lender from time to
time (the "REGISTER"). The Register shall be available for inspection by Company
or any Lender at any reasonable time and from time to time upon reasonable prior
request. Administrative Agent shall record in the Register the Commitments and
the Loans, and each repayment or prepayment in respect of the principal amount
of the Loans, and any such recordation shall be conclusive and binding on
Company and each Lender, absent manifest error; PROVIDED, failure to make any
such recordation, or any error in such recordation, shall not affect any
Lender's Commitments or Company's Obligations in respect of any Loan. Company
hereby designates GSCP to serve as Company's agent solely for purposes of
maintaining the Register as provided in this Section 2.8, and Company hereby
agrees that, to the extent GSCP serves in such capacity, GSCP and its officers,
directors, employees, agents and affiliates shall constitute "Indemnitees."
(c) NOTES. If so requested by any Lender by written notice to Company (with a
copy to Administrative Agent) at least two Business Days prior to the Closing
Date, or at any time thereafter, Company shall execute and deliver to such
Lender (and/or, if applicable and if so specified in such notice, to any Person
who is an assignee of such Lender pursuant to Section 10.6) on the Closing Date
(or, if such notice is delivered after the Closing Date, promptly after
Company's receipt of such notice) a Note or Notes to evidence such Lender's Term
Loan, Delayed Draw Loan, Swing Line Loan or Revolving Loan, as the case may be.
2.9 INTEREST ON LOANS.
(a) Except as otherwise set forth herein, each Class of Loan shall bear interest
on the unpaid principal amount thereof from the date made through repayment
(whether by acceleration or otherwise) thereof as follows:
(i) in the case of Delayed Draw Loans and Revolving Loans:
(1) if a Base Rate Loan, at the Base Rate plus the Applicable Margin; or
(2) if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate plus the
Applicable Margin;
(ii) in the case of Swing Line Loans, at the Base Rate plus the Applicable
Margin; and
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(iii) in the case of Term Loans:
(1) if a Base Rate Loan, at the Base Rate PLUS 2.00% per annum; or
(2) if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate PLUS 3.00% per
annum.
(b) The basis for determining the rate of interest with respect to any Loan
(except a Swing Line Loan), and the Interest Period with respect to any
Eurodollar Rate Loan, shall be selected by Company and notified to
Administrative Agent and Lenders pursuant to the applicable Funding Notice or
Conversion/Continuation Notice, as the case may be; PROVIDED, (i) the Term Loans
initially shall be made as Base Rate Loans until the date which is five Business
Days following the Closing Date and (ii) until the earlier of (A) the date that
Syndication Agent notifies Company that the primary syndication of the Loans and
Commitments has been completed and (B) the date that is 60 days following the
Closing Date, the Term Loans shall be maintained as either (1) Eurodollar Rate
Loans having an Interest Period of no longer than one month or (2) Base Rate
Loans. If on any day a Loan is outstanding with respect to which a Funding
Notice or Conversion/Continuation Notice has not been delivered to
Administrative Agent in accordance with the terms hereof specifying the
applicable basis for determining the rate of interest, then for that day such
Loan shall be a Base Rate Loan. Swing Line Loans shall be made and maintained
only as Base Rate Loans.
(c) In connection with Eurodollar Rate Loans there shall be no more than ten
Interest Periods outstanding at any time. In the event Company fails to specify
between a Base Rate Loan or a Eurodollar Rate Loan in the applicable Funding
Notice or Conversion/Continuation Notice, such Loan (if outstanding as a
Eurodollar Rate Loan) will be automatically converted into a Base Rate Loan on
the last day of the then-current Interest Period for such Loan (or if
outstanding as a Base Rate Loan will remain as, or (if not then outstanding)
will be made as, a Base Rate Loan). In the event Company fails to specify an
Interest Period for any Eurodollar Rate Loan in the applicable Funding Notice or
Conversion/Continuation Notice, Company shall be deemed to have selected an
Interest Period of one month. As soon as practicable after 10:00 a.m. (New York
City time) on each Interest Rate Determination Date, Administrative Agent shall
determine (which determination shall, absent manifest error, be final,
conclusive and binding upon all parties) the interest rate that shall apply to
the Eurodollar Rate Loans for which an interest rate is then being determined
for the applicable Interest Period and shall promptly give notice thereof (in
writing or by telephone confirmed in writing) to Company and each Lender.
(d) Interest payable pursuant to Section 2.8(a) shall be computed (i) in the
case of Base Rate Loans on the basis of a 365-day or 366-day year, as the case
may be, and (ii) in the case of Eurodollar Rate Loans, on the basis of a 360-day
year, in each case for the actual number of days elapsed in the period during
which it accrues. In computing interest on any Loan, the
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date of the making of such Loan or the first day of an Interest Period
applicable to such Loan or, with respect to a Base Rate Loan being converted
from a Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate Loan
to such Base Rate Loan, as the case may be, shall be included, and the date of
payment of such Loan or the expiration date of an Interest Period applicable to
such Loan or, with respect to a Base Rate Loan being converted to a Eurodollar
Rate Loan, the date of conversion of such Base Rate Loan to such Eurodollar Rate
Loan, as the case may be, shall be excluded; PROVIDED, if a Loan is repaid on
the same day on which it is made, one day's interest shall be paid on that Loan.
(e) Except as otherwise set forth herein, interest on each Loan shall be payable
in arrears on and to (i) each Interest Payment Date applicable to that Loan;
(ii) any prepayment of that Loan, whether voluntary or mandatory, to the extent
accrued on the amount being prepaid; and (iii) at maturity, including final
maturity; PROVIDED, HOWEVER, with respect to any voluntary prepayment of a Base
Rate Loan, accrued interest shall instead be payable on the applicable Interest
Payment Date.
2.10. CONVERSION/CONTINUATION.
(a) Subject to Section 2.19 and so long as no Default or Event of Default shall
have occurred and then be continuing, Company shall have the option:
(i) to convert at any time all or any part of any Loan equal to $500,000 and
integral multiples of $100,000 in excess of that amount from one Type of Loan to
another Type of Loan; PROVIDED, a Eurodollar Rate Loan may only be converted on
the expiration of the Interest Period applicable to such Eurodollar Rate Loan
unless Company shall pay all amounts due under Section 2.19 in connection with
any such conversion; or
(ii) upon the expiration of any Interest Period applicable to any Eurodollar
Rate Loan, to continue all or any portion of such Loan equal to $500,000 and
integral multiples of $100,000 in excess of that amount as a Eurodollar Rate
Loan.
(b) The Company shall deliver a Conversion/Continuation Notice to Administrative
Agent no later than 11:00 a.m. (New York City time) at least one Business Day in
advance of the proposed Conversion/Continuation Notice (in the case of a
conversion to a Base Rate Loan) and at least three Business Days in advance of
the proposed Conversion/Continuation Date (in the case of a conversion to, or a
continuation of, a Eurodollar Rate Loan). Except as otherwise provided herein, a
Conversion/ Continuation Notice for conversion to, or continuation of, any
Eurodollar Rate Loans (or telephonic notice in lieu thereof) shall be
irrevocable on and after the related Interest Rate Determination Date, and
Company shall be bound to effect a conversion or continuation in accordance
therewith.
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2.11. DEFAULT INTEREST. Upon the occurrence and during the continuance of an
Event of Default, the principal amount of all Loans outstanding and, to the
extent permitted by applicable law, any interest payments on the Loans or any
fees or other amounts owed hereunder, shall thereafter bear interest (including
post-petition interest in any proceeding under the Bankruptcy Code or other
applicable bankruptcy laws) payable on demand at a rate that is 2% per annum in
excess of the interest rate otherwise payable hereunder with respect to the
applicable Loans (or, in the case of any such fees and other amounts, at a rate
which is 2% per annum in excess of the interest rate otherwise payable hereunder
for Base Rate Loans); PROVIDED, in the case of Eurodollar Rate Loans, upon the
expiration of the Interest Period in effect at the time any such increase in
interest rate is effective such Eurodollar Rate Loans shall thereupon become
Base Rate Loans and shall thereafter bear interest payable upon demand at a rate
which is 2% per annum in excess of the interest rate otherwise payable hereunder
for Base Rate Loans. Payment or acceptance of the increased rates of interest
provided for in this Section 2.11 is not a permitted alternative to timely
payment and shall not constitute a waiver of any Event of Default or otherwise
prejudice or limit any rights or remedies of Administrative Agent or any Lender.
2.12. FEES.
(a) Company agrees to pay to Lenders having Revolving Exposure:
(i) commitment fees equal to (1) the average of the daily difference between (a)
the Revolving Commitments, and (b) the sum of (x) the aggregate principal amount
of outstanding Revolving Loans (but not Swing Line Loans) plus (y) the Letter of
Credit Usage, times (2) the Applicable Revolving Commitment Fee Percentage; and
(ii) letter of credit fees equal to (1) the Applicable Margin for Revolving
Loans that are Eurodollar Rate Loans, times (2) the average aggregate daily
maximum amount available to be drawn under all such Letters of Credit
(regardless of whether any conditions for drawing could then be met and
determined as of the close of business on any date of determination).
All fees referred to in Sections 2.12(a) and 2.12(c) shall be paid to
Administrative Agent at its Principal Office and upon receipt, Administrative
Agent shall promptly distribute to each Lender its Pro Rata Share thereof.
(b) Company agrees to pay directly to Issuing Bank, for its own account, the
following fees:
(i) a fronting fee in an amount equal to (1) an amount per annum (not to exceed
0.25%) as may be agreed by Company and Issuing Bank, times (2) the average
aggregate daily maximum amount available to be drawn under all Letters of Credit
(determined as of the close of business on any date of determination); and
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(ii) such documentary and processing charges for any issuance, amendment,
transfer or payment of a Letter of Credit as are in accordance with Issuing
Bank's standard schedule for such charges and as in effect at the time of such
issuance, amendment, transfer or payment, as the case may be.
(c) Company agrees to pay to Lenders having Delayed Draw Loan Exposure
commitment fees equal to the sum of (x) the daily average Delayed Draw
Commitments, times (y) the Applicable Delayed Draw Commitment Fee Percentage.
(d) All fees referred to in Section 2.12(a), 2.12(b)(i) and 2.12(c) shall be
calculated on the basis of a 360-day year and the actual number of days elapsed
and shall be payable quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year during the applicable Commitment Period, commencing on
the first such date to occur after the Closing Date, and on the applicable
Commitment Termination Date.
(e) In addition to any of the foregoing fees, Company agrees to pay to Agents
such other fees in the amounts and at the times separately agreed upon.
2.13. SCHEDULED PAYMENTS/COMMITMENT REDUCTIONS.
(a) SCHEDULED INSTALLMENTS. The principal amounts of the Term Loans shall be
repaid in consecutive quarterly installments (each, a "TERM LOAN INSTALLMENT")
in the aggregate amounts and on the dates (each, a "TERM LOAN INSTALLMENT DATE")
set forth below, commencing on September 30, 2002.
TERM LOAN INSTALLMENT DATE TERM LOAN INSTALLMENT
September 30, 2002 $825,000
December 31, 2002 $825,000
March 31, 2003 $825,000
June 30, 2003 $825,000
September 30, 2003 $825,000
December 31, 2003 $825,000
March 31, 2004 $825,000
June 30, 2004 $825,000
September 30, 2004 $825,000
December 31, 2004 $825,000
March 31, 2005 $825,000
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TERM LOAN INSTALLMENT DATE TERM LOAN INSTALLMENT
June 30, 2005 $825,000
September 30, 2005 $825,000
December 31, 2005 $825,000
March 31, 2006 $825,000
June 30, 2006 $825,000
September 30, 2006 $825,000
December 31, 2006 $825,000
March 31, 2007 $825,000
June 30, 2007 $825,000
September 30, 2007 $825,000
December 31, 2007 $825,000
March 31, 2008 $825,000
June 30, 2008 $825,000
September 30, 2008 $825,000
December 31, 2008 $825,000
March 31, 2009 $825,000
June 30, 2009 $825,000
September 30, 2009 $76,725,000
December 31, 2009 $76,725,000
March 31, 2010 $76,725,000
June 30, 2010 $76,725,000
(b) The principal amount of the Delayed Draw Loans shall be repaid in
consecutive quarterly installments (each, a "DELAYED DRAW INSTALLMENT") on the
dates set forth below (each, a "DELAYED DRAW INSTALLMENT DATE"), commencing on
March 31, 2004. Each installment shall be in an amount equal to the sum of (x)
the initial principal amount of the Delayed Draw Loans, times (y) the percentage
listed below for the applicable Delayed Draw Installment Date.
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DELAYED DRAW INSTALLMENT DATE DELAYED DRAW INSTALLMENT
March 31, 2004 2%
June 30, 2004 2%
September 30, 2004 2%
December 31, 2004 2%
March 31, 2005 4%
June 30, 2005 4%
September 30, 2005 4%
December 31, 2005 4%
March 31, 2006 6%
June 30, 2006 6%
September 30, 2006 6%
December 31, 2006 6%
March 31, 2007 8%
June 30, 2007 8%
September 30, 2007 8%
December 31, 2007 8%
March 31, 2008 10%
June 30, 2008 10%
(c) Notwithstanding the foregoing, (i)Term Loan Installments and Delayed Draw
Installments shall be reduced in connection with any voluntary or mandatory
prepayments of the Term Loans or the Delayed Draw Loans, as the case may be, in
accordance with Sections 2.14, 2.15 and 2.16, as applicable; and (ii) the Term
Loans and the Delayed Draw Loans, together with all other amounts owed hereunder
with respect thereto, shall, in any event, be paid in full no later than the
Term Loan Maturity Date and the Delayed Draw Loan Maturity Date, respectively.
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2.14. VOLUNTARY PREPAYMENTS/COMMITMENT REDUCTIONS.
(a) VOLUNTARY PREPAYMENTS.
(i) Any time and from time to time:
(1) with respect to Base Rate Loans (other than Swing Line Loans), Company may
prepay any such Loans on any Business Day in whole or in part, in an aggregate
minimum amount of $1,000,000 and integral multiples of $500,000 in excess of
that amount;
(2) with respect to Eurodollar Rate Loans, Company may prepay any such Loans on
any Business Day in whole or in part in an aggregate minimum amount of
$1,000,000 and integral multiples of $500,000 in excess of that amount; and
(3) with respect to Swing Line Loans, Company may prepay any such Loans on any
Business Day in whole or in part in an aggregate minimum amount of $1,000,000,
and in integral multiples of $100,000 in excess of that amount.
(ii) All such prepayments shall be made:
(1) in the case of Base Rate Loans (other than Swing Line Loans), upon not less
than one Business Day's prior written or telephonic notice to Administrative
Agent;
(2) in the case of Eurodollar Rate Loans, upon not less than three Business
Days' prior written or telephonic notice to Administrative Agent; and
(3) in the case of Swing Line Loans, upon written or telephonic notice on the
date of prepayment to Administrative Agent and Swing Line Lender;
in each case given by 12:00 p.m. (New York City time) on the date required and,
if given by telephone, promptly confirmed in writing to Administrative Agent
(and Administrative Agent will promptly transmit such telephonic or original
notice for Term Loans or Revolving Loans, as the case may be, by telefacsimile
or telephone to each Lender) and, as applicable, Swing Line Lender. Upon the
giving of any such notice, the principal amount of the Loans specified in such
notice shall become due and payable on the prepayment date specified therein.
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(B) VOLUNTARY COMMITMENT REDUCTIONS.
(i) Company may, upon not less than three Business Days' prior written or
telephonic notice confirmed in writing to Administrative Agent (which original
written or telephonic notice Administrative Agent will promptly transmit by
telefacsimile or telephone to each applicable Lender), at any time and from time
to time terminate in whole or permanently reduce in part, without premium or
penalty, (A) during the Delayed Draw Commitment Period, the Delayed Draw
Commitments in an amount up to the aggregate amount of the Delayed Draw
Commitments and (B) during the Revolving Commitment Period, the Revolving
Commitments in an amount up to the amount by which the Revolving Commitments
exceed the Total Utilization of Revolving Commitments at the time of such
proposed termination or reduction; PROVIDED, any such partial reduction of
Commitments shall be in an aggregate minimum amount for each Class of
Commitments of $1,000,000 and integral multiples of $500,000 in excess of that
amount.
(ii) Company's notice to Administrative Agent shall designate the date (which
shall be a Business Day) of such termination or reduction and the amount of any
partial reduction, and such termination or reduction of the Commitments shall be
effective on the date specified in Company's notice and shall reduce the
Commitment of each Lender proportionately to its Pro Rata Share thereof.
2.15. MANDATORY PREPAYMENTS/COMMITMENT REDUCTIONS.
(a) ASSET SALES. No later than the first Business Day following the date of
receipt by Holdings or any of its Subsidiaries of any Net Asset Sale Proceeds,
Company shall prepay Loans and/or permanently reduce Commitments as set forth in
Section 2.16(b) in an aggregate amount equal to 100% of such Net Asset Sale
Proceeds; PROVIDED, (i) so long as no Default or Event of Default shall have
occurred and be continuing and (ii) to the extent that aggregate Net Asset Sale
Proceeds from the Closing Date through the applicable date of determination do
not exceed $10,000,000, Company shall have the option, directly or through one
or more of its Subsidiaries, to invest Net Asset Sale Proceeds within two
hundred seventy days of receipt thereof in long-term productive assets of the
general type used in the business of Company and its Subsidiaries; PROVIDED
FURTHER, pending any such investment all such Net Asset Sale Proceeds shall be
applied to prepay Revolving Loans to the extent outstanding (without a reduction
in Revolving Commitments).
(b) INSURANCE/CONDEMNATION PROCEEDS. No later than the first Business Day
following the date of receipt by Holdings or any of its Subsidiaries, or
Administrative Agent as loss payee, of any Net Insurance/Condemnation Proceeds,
Company shall prepay Loans and/or reduce Commitments as set forth in Section
2.16(b) in an aggregate amount equal to such Net
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Insurance/Condemnation Proceeds; PROVIDED, so long as no Default or Event of
Default shall have occurred and be continuing, Company shall have the option,
directly or through one or more of its Subsidiaries to invest such Net
Insurance/Condemnation Proceeds within two hundred seventy days of receipt
thereof in the repair, restoration or replacement of the applicable assets
thereof, or in long term productive assets of the general type used in the
business of Holdings and its Subsidiaries with the consent of Administrative
Agent, such consent not to be unreasonably withheld; PROVIDED FURTHER, pending
any such investment all such Net Insurance/Condemnation Proceeds, as the case
may be, shall be applied to prepay Revolving Loans to the extent outstanding
(without a reduction in Revolving Commitments); PROVIDED, FURTHER, if a Default
subject to a cure period under Section 8.1(e) has occurred, but such cure period
has not yet expired, then (i) until the earlier of (x) the cure of the Default
or (y) the expiration of such cure period, all such Net Insurance/Condemnation
Proceeds, as the case may be, shall be applied to prepay Revolving Loans
(without a reduction in Revolving Commitments) and, to the extent of any excess,
held for the benefit of the Lenders under arrangements reasonably satisfactory
to Administrative Agent, and (ii) upon the expiration of such cure period,
unless the Default has been cured, all such Net Insurance/Condemnation Proceeds,
as the case may be, shall be applied to prepay Indebtedness in accordance with
the requirements of Section 2.16(b).
(c) ISSUANCE OF EQUITY SECURITIES. On the date of receipt by Holdings or any of
its Subsidiaries after the Closing Date of any Cash proceeds from a capital
contribution to, or the issuance of any Capital Stock of, Holdings or any of its
Subsidiaries (other than pursuant to any employee stock or stock option
compensation plan), to the extent such proceeds are not used to pay Permitted
Acquisition Expenses or, solely in the case of proceeds from Additional Sponsor
Equity, Consolidated Capital Expenditures, Company shall prepay Loans and/or
reduce Commitments as set forth in Section 2.16(b) in an aggregate amount equal
to 75% of such remaining proceeds, net of underwriting discounts and commissions
and other reasonable costs and expenses associated therewith, including
reasonable fees and expenses of professional advisors; PROVIDED, during any
period in which the Leverage Ratio (determined for any such period by reference
to the most recent Compliance Certificate delivered pursuant to Section 5.1(d)
calculating the Leverage Ratio) shall be 4.25:1.00 or less, Company shall only
be required to make the prepayments and/or reductions otherwise required hereby
in an amount equal to 50% of such net proceeds.
(d) ISSUANCE OF DEBT. On the date of receipt by Holdings or any of its
Subsidiaries after the Closing Date of any Cash proceeds from incurrence of any
Indebtedness of Holdings or any of its Subsidiaries other than with respect to
any Indebtedness permitted to be incurred pursuant to Section 6.1, excluding
Section 6.1(c)(ii), Company shall prepay Loans and/or reduce Commitments as set
forth in Section 2.16(b) in an aggregate amount equal to 100% of such proceeds,
net of underwriting discounts and commissions and other reasonable costs and
expenses associated therewith, including reasonable legal fees and expenses.
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(e) CONSOLIDATED EXCESS CASH FLOW. In the event that there shall be Consolidated
Excess Cash Flow for any Fiscal Year (or, in the case of Fiscal Year 2002, for
the portion of such Fiscal Year occurring after the date of this Agreement),
Company shall, no later than ninety days after the end of such Fiscal Year,
prepay Loans and/or reduce Commitments as set forth in Section 2.16(b) in an
aggregate amount equal to 75% of such Consolidated Excess Cash Flow; PROVIDED,
(i) for any Fiscal Year in which the Leverage Ratio (determined for any such
Fiscal Year by reference to the most recent applicable Compliance Certificate
delivered pursuant to Section 5.1(d)) is less than 4.25:1.00 but equal to or
greater than 3.25:1.00, Company shall only be required to make the prepayments
and/or reductions otherwise required hereby in an amount equal to 50% of such
Consolidated Excess Cash Flow and (ii) for any Fiscal Year in which the Leverage
Ratio (determined for any such Fiscal Year by reference to the most recent
applicable Compliance Certificate delivered pursuant to Section 5.1(d)) is less
than 3.25:1.00, Company shall only be required to make the prepayments and/or
reductions otherwise required hereby in an amount equal to 25% of such
Consolidated Excess Cash Flow.
(f) REVOLVING LOANS. Company shall from time to time prepay FIRST, the Swing
Line Loans, and SECOND, the Revolving Loans to the extent necessary so that the
Total Utilization of Revolving Commitments shall not at any time exceed the
Revolving Commitments then in effect.
(g) DELAYED DRAW LOANS. The Company shall prepay the Delayed Draw Loans on the
date such Delayed Draw Loans are made from any proceeds of the Delayed Draw
Loans that were not used on such date to fund Permitted Acquisition Expenses.
(h) PREPAYMENT CERTIFICATE. Concurrently with any prepayment of Loans and/or
reduction of Commitments pursuant to Sections 2.15(a) through 2.15(e), Company
shall deliver to Administrative Agent a certificate of an Authorized Officer
demonstrating the calculation of the amount of the applicable net proceeds or
Consolidated Excess Cash Flow, as the case may be. In the event that Company
shall subsequently determine that the actual amount received exceeded the amount
set forth in such certificate, Company shall promptly make an additional
prepayment of the Loans and/or the Revolving Commitments shall be permanently
reduced in an amount equal to such excess, and Company shall concurrently
therewith deliver to Administrative Agent a certificate of an Authorized Officer
demonstrating the derivation of such excess.
2.16. APPLICATION OF PREPAYMENTS/REDUCTIONS.
(a) APPLICATION OF VOLUNTARY PREPAYMENTS BY CLASS OF LOANS. Any prepayment of
any Loan pursuant to Section 2.14(a) shall be applied as follows:
FIRST, to repay outstanding Swing Line Loans to the full
extent thereof; and
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SECOND, as between outstanding Revolving Loans, on the one hand,
and Delayed Draw Loans and Term Loans, on the other hand, as Company may
direct, PROVIDED Term Loans and outstanding Delayed Draw Loans are prepaid
on a pro rata basis in accordance with the respective outstanding principal
amounts thereof.
Any prepayment of any Term Loan or Delayed Draw Loan pursuant to
Section 2.14(a) shall be further applied on a pro rata basis to reduce the
scheduled remaining installments of principal.
(b) APPLICATION OF MANDATORY PREPAYMENTS BY CLASS OF LOANS. Any amount
required to be paid pursuant to Sections 2.15(a) through 2.15(e) shall be
applied as follows:
FIRST, to prepay Term Loans and Delayed Draw Loans on a pro rata
basis (in accordance with the respective outstanding principal amounts
thereof);
SECOND, to prepay the Swing Line Loans to the full extent thereof
and to permanently reduce the Revolving Commitments by the amount of such
prepayment;
THIRD, to pay outstanding reimbursement obligations with
respect to drawn Letters of Credit;
FOURTH, to prepay Revolving Loans to the full extent thereof and
to permanently reduce the Revolving Commitments by the amount of such
prepayment;
FIFTH, to cash collateralize Letters of Credit and to further
permanently reduce the Revolving Loan Commitments by the amount of such
cash collateralization; and
SIXTH, to further permanently reduce the Revolving Commitments
and any Delayed Draw Commitments on a pro rata basis (in accordance with
the aggregate amounts thereof).
Notwithstanding the foregoing, any prepayments of Delayed Draw Loans
made pursuant to Section 2.15(g) shall be applied to reduce Delayed Draw Loans
on a pro rata basis (in accordance with the respective outstanding principal
amounts thereof).
(c) WAIVABLE MANDATORY PREPAYMENT. Anything contained herein to the contrary
notwithstanding, so long as any Delayed Draw Loans are outstanding, in the event
Company is required to make any mandatory prepayment (a "WAIVABLE MANDATORY
PREPAYMENT") of the Term Loans, not less than three Business Days prior to the
date (the "REQUIRED PREPAYMENT DATE")on which Company is required to make such
Waivable Mandatory Prepayment, Company shall notify Administrative Agent of the
amount of such prepayment, and
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Administrative Agent will promptly thereafter notify each Lender holding an
outstanding Term Loan of the amount of such Lender's Pro Rata Share of such
Waivable Mandatory Prepayment and such Lender's option to refuse such amount.
Each such Lender may exercise such option by giving written notice to Company
and Administrative Agent of its election to do so on or before the first
Business Day prior to the Required Prepayment Date (it being understood that any
Lender which does not notify Company and Administrative Agent of its election to
exercise such option on or before the First Business Day prior to the Required
Prepayment Date shall be deemed to have elected, as of such date, not to
exercise such option). On the Required Prepayment Date, Company shall pay to
Administrative Agent the amount of the Waivable Mandatory Prepayment, which
amount shall be applied (i) in an amount equal to that portion of the Waivable
Mandatory Prepayment payable to those Lenders that have elected not to exercise
such option, to prepay the Term Loans of such Lenders (which prepayment shall be
applied to the scheduled Term Loan Installments in accordance with Section
2.16(b)), and (ii) in an amount equal to that portion of the Waivable Mandatory
Prepayment otherwise payable to those Lenders that have elected to exercise such
option, to prepay the Delayed Draw Loans (which prepayment shall be further
applied to the scheduled installments of principal of the Delayed Draw Loans in
Section 2.16(b)).
(d) APPLICATION OF PREPAYMENTS OF LOANS TO BASE RATE LOANS AND EURODOLLAR RATE
LOANS. Considering each Type of Loan being prepaid separately, any prepayment
thereof shall be applied first to Base Rate Loans to the full extent thereof
before application to Eurodollar Rate Loans, in each case in a manner which
minimizes the amount of any payments required to be made by Company pursuant to
Section 2.19(c).
2.17. GENERAL PROVISIONS REGARDING PAYMENTS.
(a) All payments by Company of principal, interest, fees and other Obligations
shall be made in Dollars in same day funds, without defense, setoff or
counterclaim, free of any restriction or condition, and delivered to
Administrative Agent not later than 12:00 p.m. (New York City time) on the date
due at Administrative Agent's Principal Office for the account of Lenders; funds
received by Administrative Agent after that time on such due date shall be
deemed to have been paid by Company on the next succeeding Business Day.
(b) All payments in respect of the principal amount of any Loan (other than
voluntary prepayments of Revolving Loans) shall include payment of accrued
interest on the principal amount being repaid or prepaid, and all such payments
(and, in any event, any payments in respect of any Loan on a date when interest
is due and payable with respect to such Loan) shall be applied to the payment of
interest before application to principal.
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(c) Administrative Agent shall promptly distribute to each Lender at such
address as such Lender shall indicate in writing, such Lender's applicable Pro
Rata Share of all payments and prepayments of principal and interest due
hereunder, together with all other amounts due thereto, including, without
limitation, all fees payable with respect thereto, to the extent received by
Administrative Agent.
(d) Notwithstanding the foregoing provisions hereof, if any
Conversion/Continuation Notice is withdrawn as to any Affected Lender or if any
Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any
Eurodollar Rate Loans, Administrative Agent shall give effect thereto in
apportioning payments received thereafter.
(e) Subject to the provisos set forth in the definition of "Interest Period",
whenever any payment to be made hereunder shall be stated to be due on a day
that is not a Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the computation of
the payment of interest hereunder or of the Revolving Commitment fees hereunder.
(f) Company hereby authorizes Administrative Agent to charge Company's accounts
with Administrative Agent in order to cause timely payment to be made to
Administrative Agent of all principal, interest, fees and expenses due hereunder
(subject to sufficient funds being available in its accounts for that purpose).
(g) Administrative Agent shall deem any payment by or on behalf of Company
hereunder that is not made in same day funds prior to 12:00 p.m. (New York City
time) to be a non-conforming payment. Any such payment shall not be deemed to
have been received by Administrative Agent until the later of (i) the time such
funds become available funds, and (ii) the applicable next Business Day.
Administrative Agent shall give prompt telephonic notice to Company and each
applicable Lender (confirmed in writing) if any payment is non-conforming. Any
non-conforming payment may constitute or become a Default or Event of Default in
accordance with the terms of Section 8.1(a). Interest shall continue to accrue
on any principal as to which a non-conforming payment is made until such funds
become available funds (but in no event less than the period from the date of
such payment to the next succeeding applicable Business Day) at the rate
determined pursuant to Section 2.9 from the date such amount was due and payable
until the date such amount is paid in full.
(h) If an Event of Default shall have occurred and not otherwise been waived,
and the maturity of the Obligations shall have been accelerated pursuant to
Section 8.1, all payments or proceeds received by Agents hereunder in respect of
any of the Obligations, shall be applied in accordance with the application
arrangements described in Section 6.5 of the Pledge and Security Agreement.
2.18. RATABLE SHARING. Lenders hereby agree among themselves that, except as
otherwise provided in the Collateral Documents with respect to amounts
realized from the exercise of rights with respect to Liens on the
Collateral, if any of them shall, whether by voluntary payment (other than
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a voluntary prepayment of Loans made and applied in accordance with the terms
hereof), through the exercise of any right of set-off or banker's lien, by
counterclaim or cross action or by the enforcement of any right under the Credit
Documents or otherwise, or as adequate protection of a deposit treated as cash
collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts payable in
respect of Letters of Credit, fees and other amounts then due and owing to such
Lender hereunder or under the other Credit Documents (collectively, the
"AGGREGATE AMOUNTS DUE" to such Lender) which is greater than the proportion
received by any other Lender in respect of the Aggregate Amounts Due to such
other Lender, then the Lender receiving such proportionately greater payment
shall (a) notify Administrative Agent and each other Lender of the receipt of
such payment and (b) apply a portion of such payment to purchase participations
(which it shall be deemed to have purchased from each seller of a participation
simultaneously upon the receipt by such seller of its portion of such payment)
in the Aggregate Amounts Due to the other Lenders so that all such recoveries of
Aggregate Amounts Due shall be shared by all Lenders in proportion to the
Aggregate Amounts Due to them; PROVIDED, if all or part of such proportionately
greater payment received by such purchasing Lender is thereafter recovered from
such Lender upon the bankruptcy or reorganization of Company or otherwise, those
purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to such purchasing Lender ratably to the extent
of such recovery, but without interest. Company expressly consents to the
foregoing arrangement and agrees that any holder of a participation so purchased
may exercise any and all rights of banker's lien, set-off or counterclaim with
respect to any and all monies owing by Company to that holder with respect
thereto as fully as if that holder were owed the amount of the participation
held by that holder.
2.19. MAKING OR MAINTAINING EURODOLLAR RATE LOANS.
(a) INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In the event that
Administrative Agent shall have determined (which determination shall be final
and conclusive and binding upon all parties hereto absent manifest error), on
any Interest Rate Determination Date with respect to any Eurodollar Rate Loans,
that by reason of circumstances affecting the London interbank market adequate
and reasonable means do not exist for ascertaining the interest rate applicable
to such Loans on the basis provided for in the definition of Adjusted Eurodollar
Rate, Administrative Agent shall on such date give notice (by telefacsimile or
by telephone confirmed in writing) to Company and each Lender of such
determination, whereupon (i) no Loans may be made as, or converted to,
Eurodollar Rate Loans until such time as Administrative Agent notifies Company
and Lenders that the circumstances giving rise to such notice no longer exist,
and (ii) any Funding Notice or Conversion/Continuation Notice given by Company
with respect to the Loans in respect of which such determination was made shall
be deemed to be rescinded by Company.
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(b) ILLEGALITY OR IMPRACTICABILITY OF EURODOLLAR RATE LOANS. In the event that
on any date any Lender shall have determined (which determination shall be final
and conclusive and binding upon all parties hereto but shall be made only after
consultation with Company and Administrative Agent) that the making, maintaining
or continuation of its Eurodollar Rate Loans (i) has become unlawful as a result
of compliance by such Lender in good faith with any law, treaty, governmental
rule, regulation, guideline or order (or would conflict with any such treaty,
governmental rule, regulation, guideline or order not having the force of law
even though the failure to comply therewith would not be unlawful), or (ii) has
become impracticable, as a result of contingencies occurring after the date
hereof which materially and adversely affect the London interbank market or the
position of such Lender in that market, then, and in any such event, such Lender
shall be an "AFFECTED LENDER" and it shall on that day give notice (by
telefacsimile or by telephone confirmed in writing) to Company and
Administrative Agent of such determination (which notice Administrative Agent
shall promptly transmit to each other Lender). Thereafter (1) the obligation of
the Affected Lender to make Loans as, or to convert Loans to, Eurodollar Rate
Loans shall be suspended until such notice shall be withdrawn by the Affected
Lender, (2) to the extent such determination by the Affected Lender relates to a
Eurodollar Rate Loan then being requested by Company pursuant to a Funding
Notice or a Conversion/Continuation Notice, the Affected Lender shall make such
Loan as (or continue such Loan as or convert such Loan to, as the case may be) a
Base Rate Loan, (3) the Affected Lender's obligation to maintain its outstanding
Eurodollar Rate Loans (the "AFFECTED LOANS") shall be terminated at the earlier
to occur of the expiration of the Interest Period then in effect with respect to
the Affected Loans or when required by law, and (4) the Affected Loans shall
automatically convert into Base Rate Loans on the date of such termination.
Notwithstanding the foregoing, to the extent a determination by an Affected
Lender as described above relates to a Eurodollar Rate Loan then being requested
by Company pursuant to a Funding Notice or a Conversion/Continuation Notice,
Company shall have the option, subject to the provisions of Section 2.19(c), to
rescind such Funding Notice or Conversion/Continuation Notice as to all Lenders
by giving notice (by telefacsimile or by telephone confirmed in writing) to
Administrative Agent of such rescission on the date on which the Affected Lender
gives notice of its determination as described above (which notice of rescission
Administrative Agent shall promptly transmit to each other Lender). Except as
provided in the immediately preceding sentence, nothing in this Section 2.19(b)
shall affect the obligation of any Lender other than an Affected Lender to make
or maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in
accordance with the terms hereof.
(c) COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST PERIODS. Company
shall compensate each Lender, upon written request by such Lender (which request
shall set forth the basis for requesting such amounts), for all reasonable
losses, expenses and liabilities (including any interest paid by such Lender to
lenders of funds borrowed by it to make or carry its Eurodollar Rate Loans and
any loss, expense or liability sustained by such Lender in connection with the
liquidation or re-employment of such funds but excluding loss of anticipated
profits) which such Lender may sustain:
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(i) if for any reason (other than a default by such Lender) a borrowing of any
Eurodollar Rate Loan does not occur on a date specified therefor in a Funding
Notice or a telephonic request for borrowing, or a conversion to or continuation
of any Eurodollar Rate Loan does not occur on a date specified therefor in a
Conversion/Continuation Notice or a telephonic request for conversion or
continuation; (ii) if any prepayment or other principal payment or any
conversion of any of its Eurodollar Rate Loans occurs on a date prior to the
last day of an Interest Period applicable to that Loan (including, without
limitation, pursuant to Section 2.14 hereof); or (iii) if any prepayment of any
of its Eurodollar Rate Loans is not made on any date specified in a notice of
prepayment given by Company.
(d) BOOKING OF EURODOLLAR RATE LOANS. Any Lender may make, carry or transfer
Eurodollar Rate Loans at, to, or for the account of any of its branch
offices or the office of an Affiliate of such Lender.
(e) ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR RATE LOANS. Calculation of all
amounts payable to a Lender under this Section 2.19 and under Section 2.20 shall
be made as though such Lender had actually funded each of its relevant
Eurodollar Rate Loans through the purchase of a Eurodollar deposit bearing
interest at the rate obtained pursuant to clause (i) of the definition of
Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar
Rate Loan and having a maturity comparable to the relevant Interest Period and
through the transfer of such Eurodollar deposit from an offshore office of such
Lender to a domestic office of such Lender in the United States of America;
PROVIDED, HOWEVER, each Lender may fund each of its Eurodollar Rate Loans in any
manner it sees fit and the foregoing assumptions shall be utilized only for the
purposes of calculating amounts payable under this Section 2.19 and under
Section 2.20.
2.20. INCREASED COSTS; CAPITAL ADEQUACY.
(a) COMPENSATION FOR INCREASED COSTS AND TAXES. Subject to the provisions of
Section 2.21, in the event that any Lender (which term shall include Issuing
Bank for purposes of this Section 2.20(a)) shall determine (which determination
shall, absent manifest error, be final and conclusive and binding upon all
parties hereto) that any law, treaty or governmental rule, regulation or order,
or any change therein or in the interpretation, administration or application
thereof (including the introduction of any new law, treaty or governmental rule,
regulation or order), or any determination of a court or governmental authority,
in each case that becomes effective after the date hereof, or compliance by such
Lender with any guideline, request or directive issued or made after the date
hereof by any central bank or other governmental or quasi-governmental authority
(whether or not having the force of law): (i) subjects such Lender (or its
applicable lending office) to any additional Tax (other than any Excluded Tax)
with respect to this Agreement or any of the other Credit Documents or any of
its obligations hereunder or thereunder or any payments to such Lender (or its
applicable lending office) of principal, interest, fees or any other amount
payable hereunder; (ii) imposes, modifies or holds
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applicable any reserve (including any marginal, emergency, supplemental, special
or other reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement against assets held by, or deposits or other liabilities in or for
the account of, or advances or loans by, or other credit extended by, or any
other acquisition of funds by, any office of such Lender (other than any such
reserve or other requirements with respect to Eurodollar Rate Loans that are
reflected in the definition of Adjusted Eurodollar Rate); or (iii) imposes any
other condition (other than with respect to a Tax matter) on or affecting such
Lender (or its applicable lending office) or its obligations hereunder or the
London interbank market; and the result of any of the foregoing is to increase
the cost to such Lender of agreeing to make, making or maintaining Loans
hereunder or to reduce any amount received or receivable by such Lender (or its
applicable lending office) with respect thereto; then, in any such case, Company
shall promptly pay to such Lender, upon receipt of the statement referred to in
the next sentence, such additional amount or amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise
as such Lender in its sole discretion shall determine) as may be necessary to
compensate such Lender for any such increased cost or reduction in amounts
received or receivable hereunder. Such Lender shall deliver to Company (with a
copy to Administrative Agent) a written statement, setting forth in reasonable
detail the basis for calculating the additional amounts owed to such Lender
under this Section 2.20(a), which statement shall be conclusive and binding upon
all parties hereto absent manifest error.
(b) CAPITAL ADEQUACY ADJUSTMENT. In the event that any Lender shall have
determined that the adoption, effectiveness, phase-in or applicability after the
Closing Date of any law, rule or regulation (or any provision thereof) regarding
capital adequacy, or any change therein or in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender (or its applicable lending office) with any guideline, request or
directive regarding capital adequacy (whether or not having the force of law) of
any such Governmental Authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on the capital of such Lender or
any corporation controlling such Lender as a consequence of, or with reference
to, such Lender's Loans or Commitments or Letters of Credit, or participations
therein or other obligations hereunder with respect to the Loans or the Letters
of Credit to a level below that which such Lender or such controlling
corporation could have achieved but for such adoption, effectiveness, phase-in,
applicability, change or compliance (taking into consideration the policies of
such Lender or such controlling corporation with regard to capital adequacy),
then from time to time, within five Business Days after receipt by Company from
such Lender of the statement referred to in the next sentence, Company shall pay
to such Lender such additional amount or amounts as will compensate such Lender
or such controlling corporation on an after-tax basis for such reduction. Such
Lender shall deliver to Company (with a copy to Administrative Agent) a written
statement, setting forth in reasonable detail the basis for calculating the
additional amounts owed to Lender under this Section 2.20(b), which statement
shall be conclusive and binding upon all parties hereto absent manifest error.
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2.21. TAXES; WITHHOLDING, ETC.
(a) PAYMENTS TO BE FREE AND CLEAR. All sums payable by any Credit Party
hereunder and under the other Credit Documents shall (except to the extent
required by law) be paid free and clear of, and without any deduction or
withholding on account of, any Tax (other than any Excluded Tax) imposed,
levied, collected, withheld or assessed by or within the United States of
America or any political subdivision in or of the United States of America or
any other jurisdiction from or to which a payment is made by or on behalf of any
Credit Party or by any federation or organization of which the United States of
America or any such jurisdiction is a member at the time of payment.
(b) WITHHOLDING OF TAXES. If any Credit Party or any other Person is required by
law to make any deduction or withholding on account of any Tax from any sum paid
or payable by any Credit Party to Administrative Agent or any Lender under any
of the Credit Documents: (i) Company shall notify Administrative Agent of any
such requirement or any change in any such requirement as soon as Company
becomes aware of it; (ii) Company shall pay any such Tax before the date on
which penalties attach thereto, such payment to be made (if the liability to pay
is imposed on any Credit Party) for its own account or (if that liability is
imposed on Administrative Agent or such Lender, as the case may be) on behalf of
and in the name of Administrative Agent or such Lender; (iii) except with
respect to any Excluded Tax, the sum payable by such Credit Party in respect of
which the relevant deduction, withholding or payment is required shall be
increased to the extent necessary to ensure that, after the making of that
deduction, withholding or payment, Administrative Agent or such Lender, as the
case may be, receives on the due date a net sum equal to what it would have
received had no such deduction, withholding or payment been required or made;
and (iv) within thirty days after paying any sum from which it is required by
law to make any deduction or withholding, and within thirty days after the due
date of payment of any Tax which it is required by clause (ii) above to pay,
Company shall deliver to Administrative Agent evidence satisfactory to the other
affected parties of such deduction, withholding or payment and of the remittance
thereof to the relevant taxing or other authority, PROVIDED, HOWEVER, that no
additional amount shall be required to be paid to any Lender under clause (iii)
above except to the extent that any change after the Lender Effective Date in
any such requirement for a deduction, withholding or payment as is mentioned
therein shall result in an increase in the rate of such deduction, withholding
or payment from that in effect at the Lender Effective Date in respect of
payments to such Lender.
(c) EVIDENCE OF EXEMPTION FROM U.S. WITHHOLDING TAX. (i) Each Lender that is not
a United States Person (as such term is defined in Section 7701(a)(30) of the
Internal Revenue Code) for U.S. federal income tax purposes (a "NON-US LENDER")
shall deliver to Administrative Agent for transmission to Company, on or prior
to the Closing Date (in the case of each Lender listed on the signature pages
hereof on the Closing Date) or on or prior to the date of the Assignment
Agreement pursuant to which it becomes a Lender (in the case of each other
Lender), upon designation of a new lending office, and at such other times as
may be necessary in the determination of Company
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or Administrative Agent (each in the reasonable exercise of its discretion), two
original copies of Internal Revenue Service Form W-8BEN or W-8ECI (or any
successor forms), properly completed and duly executed by such Lender, and such
other documentation required under the Internal Revenue Code, or regulations or
administrative pronouncements promulgated thereunder, and reasonably requested
by Company to establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect to any payments to
such Lender of principal, interest, fees or other amounts payable under any of
the Credit Documents; (ii) Each Lender that is a United States Person (as such
term is defined in Section 7701(a)(30) of the Internal Revenue Code) for U.S.
federal income tax purposes, and that is not a person which the Company is
entitled to treat as an "exempt recipient" (as such term is defined in Section
1.6049-4(c)(ii) of the United States Treasury Regulations) without receiving a
certificate from such person (under current law, including, but not limited to
any person whose name includes the terms "Incorporated", "Inc.", "Corporation",
"Corp.", "P.C.", "insurance company", "indemnity company", "reinsurance
company", "assurance company", "bank", "savings and loan association",
"buildings and loan association", "homestead association", "credit union" or
"industrial loan association" and their permitted foreign language equivalents,
and any entity that is generally known in the investment community to be
registered at all times during the taxable year under the Investment Company Act
of 1940) (a "US Lender") shall deliver to the Administrative Agent for
transmission to the Company, on or prior to the Closing Date (in the case of
each US Lender listed on the signature pages hereof, on the Closing Date) or on
or prior to the date of the Assignment Agreement pursuant to which it becomes a
US Lender (in the case of each other US Lender), and at such other times as may
be necessary in the determination of the Company or Administrative Agent (each
in the reasonable exercise of its discretion), two original copies of Internal
Revenue Service Form W-9 (or any successor forms), properly completed and duly
executed by such US Lender, and such other documentation reasonably requested by
the Company, to establish that such US Lender is not subject to deduction or
withholding of United States federal income tax with respect to any payments to
such US Lender of principal, interest, fees or other amounts payable under any
of the Credit Documents; or (iii) if such Lender is not a "bank" or other Person
described in Section 881(c)(3) of the Internal Revenue Code and cannot deliver
either Internal Revenue Service Form W-8BEN or W-8ECI pursuant to clause (i)
above, a Certificate re Non-Bank Status together with two original copies of
Internal Revenue Service Form W-8 (or any successor form), properly completed
and duly executed by such Lender, and such other documentation reasonably
requested by Company or Administrative Agent to establish that such Lender is
not subject to deduction or withholding of United States federal income tax with
respect to any payments to such Lender of interest payable under any of the
Credit Documents. Each Lender required to deliver any forms, certificates or
other evidence with respect to United States federal income tax withholding
matters pursuant to this Section 2.21(c) hereby agrees, from time to time after
the initial time for delivery or potential delivery by such Lender of such
forms, certificates or other evidence, whenever a lapse in time or change in
circumstances renders such forms, certificates or other evidence obsolete or
inaccurate in any material respect, that such Lender shall promptly deliver to
Administrative Agent for transmission to
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Company two new original copies of Internal Revenue Service Form W-8BEN or
W-8ECI (or any successor forms), or a Certificate re Non-Bank Status (or any
successor forms) and two original copies of Internal Revenue Service Form W-8 or
two original copies of Internal Revenue Service Form W-9, as the case may be (or
any successor forms), properly completed and duly executed by such Lender, and
such other documentation reasonably requested by Company or Administrative Agent
to confirm or establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect to payments to such
Lender under the Credit Documents, or notify Administrative Agent and Company of
its inability to deliver any such forms, certificates or other evidence. Company
shall not be required to pay any additional amount to any U.S. Lender or Non-US
Lender under Section 2.21(b)(iii) if such Lender shall have failed (1) to
deliver the forms, certificates or other evidence referred to in the second
sentence of this Section 2.21(c), or (2) to notify Administrative Agent and
Company of its inability to deliver any such forms, certificates or other
evidence, as the case may be; PROVIDED, if such Lender shall have satisfied the
requirements of the first sentence of this Section 2.21(c) on the Closing Date
or on the date of the Assignment Agreement pursuant to which it became a Lender,
as applicable, nothing in this last sentence of Section 2.21(c) shall relieve
Company of its obligation to pay any additional amounts pursuant to Section
2.20(a) or Section 2.21(b) in the event that, as a result of any change in any
applicable law, treaty or governmental rule, regulation or order, or any change
in the interpretation, administration or application thereof, such Lender is no
longer properly entitled to deliver forms, certificates or other evidence at a
subsequent date establishing the fact that such Lender is not subject to
withholding as described herein. Each US Lender and Non-US Lender hereby agrees
to indemnify and hold harmless the Company from and against any Taxes imposed on
or behalf of the United States or any taxing jurisdiction thereof, and any
interest, penalties or additions thereto, or costs incurred in connection
therewith, incurred or payable by the Company as a result of the failure of the
Company to comply with its obligations to deduct or withhold any Taxes imposed
by or on behalf of the United States or any taxing jurisdiction thereof from any
payments made pursuant to this Agreement to such US Lender, Non-US Lender or the
Administrative Agent, which failure resulted from the Company's reliance on any
form, statement, certificate or other information provided to it by such Lender
pursuant to this Section 2.21 or by reason of such Lender being a "conduit
entity" within the meaning of U.S. Treasury Regulation Section 1.881-3 (or any
applicable successor provision).
2.22. OBLIGATION TO MITIGATE. Each Lender agrees that, as promptly as
practicable after the officer of such Lender responsible for administering its
Commitments, Loans or Letters of Credit, as the case may be, becomes aware of
the occurrence of an event or the existence of a condition that would cause such
Lender to become an Affected Lender or that would entitle such Lender to receive
payments under Section 2.19, 2.20 or 2.21, it will, to the extent not
inconsistent with the internal policies of such Lender and any applicable legal
or regulatory restrictions, use reasonable efforts to (a) make, issue, fund or
maintain its Commitments, Loans and Letters of Credit, including any Affected
Loans, through another office of such Lender, or (b) take such other measures as
such Lender may deem reasonable,
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if as a result thereof the circumstances which would cause such Lender to be an
Affected Lender would cease to exist or the additional amounts which would
otherwise be required to be paid to such Lender pursuant to Section 2.19, 2.20
or 2.21 would be materially reduced and if, as determined by such Lender in its
sole discretion, the making, issuing, funding or maintaining of such
Commitments, Loans or Letters of Credit through such other office or in
accordance with such other measures, as the case may be, would not otherwise
adversely affect such Commitments, Loans or Letters of Credit or the interests
of such Lender; PROVIDED, such Lender will not be obligated to utilize such
other office pursuant to this Section 2.22 unless Company agrees to pay all
incremental expenses incurred by such Lender as a result of utilizing such other
office as described in clause (a) above. A certificate as to the amount of any
such expenses payable by Company pursuant to this Section 2.22 (setting forth in
reasonable detail the basis for requesting such amount) submitted by such Lender
to Company (with a copy to Administrative Agent) shall be conclusive absent
manifest error.
2.23. DEFAULTING LENDERS. Anything contained herein to the contrary
notwithstanding, in the event that any Lender, at the direction or request of
any regulatory agency or authority, defaults (a "DEFAULTING LENDER") in its
obligation to fund (a "FUNDING DEFAULT") any Revolving Loan under Section
2.3(b)(iv) or any Delayed Draw Loan under Section 2.2(b)(iv) or its portion of
any unreimbursed payment under Section 2.4(e) (in each case, a "DEFAULTED
LOAN"), then (a) during any Default Period with respect to such Defaulting
Lender, such Defaulting Lender shall be deemed not to be a "Lender" for purposes
of voting on any matters (including the granting of any consents or waivers)
with respect to any of the Credit Documents; (b) to the extent permitted by
applicable law, until such time as the Default Excess with respect to such
Defaulting Lender shall have been reduced to zero, (i) any voluntary prepayment
of the Revolving Loans shall, if Company so directs at the time of making such
voluntary prepayment, be applied to the Revolving Loans of other Lenders as if
such Defaulting Lender had no Revolving Loans outstanding and the Revolving
Exposure of such Defaulting Lender were zero, and (ii) any mandatory prepayment
of the Revolving Loans shall, if Company so directs at the time of making such
mandatory prepayment, be applied to the Revolving Loans of other Lenders (but
not to the Revolving Loans of such Defaulting Lender) as if such Defaulting
Lender had funded all Defaulted Loans of such Defaulting Lender, it being
understood and agreed that Company shall be entitled to retain any portion of
any mandatory prepayment of the Revolving Loans that is not paid to such
Defaulting Lender solely as a result of the operation of the provisions of this
clause (b); (c) such Defaulting Lender's Revolving Commitment and outstanding
Revolving Loans and such Defaulting Lender's Pro Rata Share of the Letter of
Credit Usage shall be excluded for purposes of calculating the Revolving
Commitment fee payable to Lenders in respect of any day during any Default
Period with respect to such Defaulting Lender, and such Defaulting Lender shall
not be entitled to receive any Revolving Commitment fee pursuant to Section 2.11
with respect to such Defaulting Lender's Revolving Commitment in respect of any
Default Period with respect to such Defaulting Lender; and (d) the Total
Utilization of Revolving Commitments as at any date of determination shall be
calculated as if such Defaulting Lender had funded all Defaulted Loans of such
Defaulting Lender.
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No Revolving Commitment of any Lender shall be increased or otherwise affected,
and, except as otherwise expressly provided in this Section 2.23, performance by
Company of its obligations hereunder and the other Credit Documents shall not be
excused or otherwise modified as a result of any Funding Default or the
operation of this Section 2.23. The rights and remedies against a Defaulting
Lender under this Section 2.23 are in addition to other rights and remedies
which Company may have against such Defaulting Lender with respect to any
Funding Default and which Administrative Agent or any Lender may have against
such Defaulting Lender with respect to any Funding Default.
2.24. REMOVAL OR REPLACEMENT OF A LENDER. Anything contained herein to the
contrary notwithstanding, in the event that: (a) any Lender (an "INCREASED-COST
LENDER") shall give notice to Company that such Lender is an Affected Lender or
such Lender becomes entitled to receive payments under Section 2.20 or 2.21, the
circumstances which have caused such Lender to be an Affected Lender or which
entitle such Lender to receive such payments shall remain in effect, and such
Lender shall fail to (i) withdraw such notice or (ii) waive in writing the right
to receive the applicable payments, in each of cases (i) and (ii), within five
Business Days after Company's request for such withdrawal or waiver; or (b) any
Lender shall become a Defaulting Lender, the Default Period for such Defaulting
Lender shall remain in effect, and such Defaulting Lender shall fail to cure the
default as a result of which it has become a Defaulting Lender within five
Business Days after Company's request that it cure such default; or (c) in
connection with any proposed amendment, modification, termination, waiver or
consent with respect to any of the provisions hereof as contemplated by Section
10.5(b), the consent of Requisite Lenders shall have been obtained but the
consent of one or more of such other Lenders (each a "NON-CONSENTING LENDER")
whose consent is required shall not have been obtained; then, with respect to
each such Increased-Cost Lender, Defaulting Lender or Non-Consenting Lender (the
"TERMINATED LENDER"), Company may, by giving written notice to Administrative
Agent and any Terminated Lender of its election to do so, elect to cause such
Terminated Lender (and such Terminated Lender hereby irrevocably agrees) to
assign its outstanding Loans and its Revolving Commitments, if any, in full to
one or more Eligible Assignees (each a "REPLACEMENT LENDER") in accordance with
the provisions of Section 10.6 and Terminated Lender shall pay any fees payable
thereunder in connection with such assignment; PROVIDED, (1) on the date of such
assignment, the Replacement Lender shall pay to Terminated Lender an amount
equal to the sum of (A) an amount equal to the principal of, and all accrued
interest on, all outstanding Loans of the Terminated Lender, (B) an amount equal
to all unreimbursed drawings that have been funded by such Terminated Lender,
together with all then unpaid interest with respect thereto at such time and (C)
an amount equal to all accrued, but theretofore unpaid fees owing to such
Terminated Lender pursuant to Section 2.12; (2) on the date of such assignment,
Company shall pay any amounts payable to such Terminated Lender pursuant to
Section 2.19, 2.20 or 2.21 or otherwise as if it were a prepayment; and (3) in
the event such Terminated Lender is a Non-Consenting Lender, each Replacement
Lender shall consent, at the time of such assignment, to each matter in respect
of which
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such Terminated Lender was a Non-Consenting Lender; PROVIDED, Company may not
make such election with respect to any Terminated Lender that is also an Issuing
Bank unless, prior to the effectiveness of such election, Company shall have
caused each outstanding Letter of Credit issued thereby to be cancelled. Upon
the prepayment of all amounts owing to any Terminated Lender and the termination
of such Terminated Lender's Revolving Commitments, if any, such Terminated
Lender shall no longer constitute a "Lender" for purposes hereof; PROVIDED, any
rights of such Terminated Lender to indemnification hereunder shall survive as
to such Terminated Lender.
SECTION 3. CONDITIONS PRECEDENT
3.1. CLOSING DATE. The obligation of any Lender to make a Credit Extension on
the Closing Date is subject to the satisfaction, or waiver in accordance
with Section 10.5, of the following conditions on or before the Closing
Date:
(a) CREDIT DOCUMENTS. Administrative Agent shall have received sufficient copies
of each Credit Document originally executed and delivered by each applicable
Credit Party for each Lender.
(b) ORGANIZATIONAL DOCUMENTS; INCUMBENCY. Administrative Agent shall have
received (i) sufficient copies of each Organizational Document executed and
delivered by each Credit Party, as applicable, and, to the extent applicable,
certified as of a recent date by the appropriate governmental official, for each
Lender, each dated the Closing Date or a recent date prior thereto; (ii)
signature and incumbency certificates of the officers of such Person executing
the Credit Documents to which it is a party; (iii) resolutions of the Board of
Directors or similar governing body of each Credit Party approving and
authorizing the execution, delivery and performance of this Agreement and the
other Credit Documents and the Related Agreements to which it is a party or by
which it or its assets may be bound as of the Closing Date, certified as of the
Closing Date by its secretary or an assistant secretary as being in full force
and effect without modification or amendment; (iv) a good standing certificate
from the applicable Governmental Authority of each Credit Party's jurisdiction
of incorporation, organization or formation and in each jurisdiction in which it
is qualified as a foreign corporation or other entity to do business, each dated
a recent date prior to the Closing Date; and (v) such other documents as
Administrative Agent may reasonably request in writing.
(c) ORGANIZATIONAL AND CAPITAL STRUCTURE. The organizational structure and
capital structure of Holdings and its Subsidiaries, both before and after
giving effect to the Merger, shall be as set forth on Schedule 4.2.
(d) ISSUANCE OF SENIOR SUBORDINATED NOTES. On or before the Closing Date:
(i) Company shall have received the gross proceeds from the issuance of the
Senior Subordinated Notes in an aggregate amount in cash of not less than
$250,000,000;
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(ii) Company shall have delivered to Agents complete, correct and conformed
copies of the Senior Subordinated Note Documents; and
(iii) Company shall have provided evidence satisfactory to Agents that the
proceeds of Senior Subordinated Notes have been irrevocably committed, prior to
the application of the proceeds of the Term Loans to be made on the Closing
Date, to the payment of the Merger Financing Requirements (subject to the
concurrent consummation of the Merger).
(e) EQUITY FINANCING. On or before the Closing Date, Company shall have provided
evidence satisfactory to Agents that the proceeds of the Equity Financing have
been irrevocably committed, prior to the application of the proceeds of the Term
Loans to be made on the Closing Date, to the payment of the Merger Financing
Requirements (subject to the concurrent consummation of the Merger).
(f) RELATED AGREEMENTS. Syndication Agent shall have received a fully executed
or conformed copy of each Related Agreement and any documents executed in
connection therewith, together with copies of any opinions of counsel delivered
to the parties under the Related Agreements, accompanied by a letter from each
such counsel (to the extent not inconsistent with such counsel's established
internal policies) authorizing Lenders to rely upon such opinion to the same
extent as though it were addressed to Lenders. Each Related Agreement shall be
in full force and effect and no provision thereof shall have been modified or
waived in any respect determined by Syndication Agent to be material, in each
case without the consent of Syndication Agent.
(g) CONSUMMATION OF MERGER AND OTHER TRANSACTIONS. (i) All conditions to the
Merger set forth in Article VIII of the Merger Agreement and related documents
shall have been satisfied or the fulfillment of any such conditions shall have
been waived with the consent of Administrative Agent and Syndication Agent; (ii)
the Merger shall have become effective in accordance with the terms of the
Merger Agreement; (iii) the other conditions set forth in Schedule 1.1 shall
have been satisfied; and (iv) the Merger Financing Requirements shall not exceed
$848,800,000.
(h) EXISTING GUARANTY OBLIGATIONS. Except as set forth on Schedule 6.1(g), on
the Closing Date, Holdings and its Subsidiaries shall have (i) extinguished all
guaranty obligations of Company and its Subsidiaries, and (ii) made arrangements
satisfactory to Syndication Agent and Administrative Agent with respect to the
cancellation of any letters of credit outstanding to support the obligations of
Holdings and its Subsidiaries with respect thereto.
(i) EXISTING INDEBTEDNESS. Except as set forth on Schedule 6.1(g), on the
Closing Date, Holdings and its Subsidiaries shall have (i) repaid in full all of
their Indebtedness, (ii) terminated any commitments to lend or make other
extensions of credit thereunder, (iii) delivered to Syndication Agent and
Administrative Agent all documents or instruments necessary to release all Liens
securing any Indebtedness (other than in respect of Surviving Indebtedness) of
any of them or other obligations of Holdings and its
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Subsidiaries thereunder being repaid on the Closing Date, and (iv) made
arrangements satisfactory to Syndication Agent and Administrative Agent with
respect to the cancellation of any letters of credit outstanding thereunder or
the issuance of Letters of Credit to support the obligations of Holdings and its
Subsidiaries with respect thereto.
(j) TRANSACTION COSTS. On or prior to the Closing Date, Company shall have
delivered to Administrative Agent Company's reasonable best estimate of the
Transaction Costs (other than fees payable to any Agent).
(k) GOVERNMENTAL AUTHORIZATIONS AND CONSENTS. Each Credit Party shall have
obtained all Governmental Authorizations and all consents of other Persons, in
each case that are necessary in connection with the transactions contemplated by
the Credit Documents and the Related Agreements and each of the foregoing shall
be in full force and effect and in form and substance reasonably satisfactory to
Syndication Agent and Administrative Agent, except for such registrations,
consents, approvals, notices or actions the failure of which to obtain,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect. All applicable waiting periods shall have expired
without any action being taken or threatened by any competent authority which
would restrain, prevent or otherwise impose adverse conditions on the
transactions contemplated by the Credit Documents or the Related Agreements or
the financing thereof and no action, request for stay, petition for review or
rehearing, reconsideration, or appeal with respect to any of the foregoing shall
be pending, and the time for any applicable agency to take action to set aside
its consent on its own motion shall have expired.
(l) REAL ESTATE ASSETS. In order to create in favor of Collateral Agent, for the
benefit of Secured Parties, a valid and, subject to any filing and/or recording
referred to herein, perfected First Priority security interest in each Material
Real Estate Asset, Collateral Agent shall have received from Company and each
applicable Guarantor:
(i) fully executed and notarized Mortgages, in proper form for recording in all
appropriate places in all applicable jurisdictions, encumbering each Real Estate
Asset listed in Schedule 3.1(l) (each, a "CLOSING DATE MORTGAGED PROPERTY");
(ii) an opinion of counsel (which counsel shall be reasonably satisfactory to
Collateral Agent) in each state in which a Closing Date Mortgaged Property is
located with respect to the enforceability of the form(s) of Mortgages to be
recorded in such state and such other matters as Collateral Agent may reasonably
request, in each case in form and substance reasonably satisfactory to
Collateral Agent;
(iii) in the case of each Leasehold Property that is a Closing Date Mortgaged
Property, (1) a Landlord's Consent, Estoppel Certificate and Amendment and (2)
evidence that such Leasehold Property is a Recorded Leasehold Interest;
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(iv) (A) ALTA mortgagee title insurance policies (or other policies available in
such state and reasonably satisfactory to Collateral Agent) or unconditional
commitments therefor issued by one or more title companies reasonably
satisfactory to Collateral Agent with respect to each Closing Date Mortgaged
Property (each, a "TITLE POLICY"), in amounts not less than the fair market
value of each Closing Date Mortgaged Property, together with a title report
issued by a title company with respect thereto, dated not more than thirty days
prior to the Closing Date and copies of all recorded documents listed as
exceptions to title or otherwise referred to therein, each in form and substance
reasonably satisfactory to Collateral Agent and (B) evidence satisfactory to
Collateral Agent that such Credit Party has paid to the title company or to the
appropriate governmental authorities all expenses and premiums of the title
company and all other sums required in connection with the issuance of each
Title Policy and all recording and stamp taxes (including mortgage recording and
intangible taxes) payable in connection with recording the Mortgages for each
Closing Date Mortgaged Property in the appropriate real estate records;
(v) evidence of flood insurance with respect to each Flood Hazard Property that
is located in a community that participates in the National Flood Insurance
Program, in each case in compliance with any applicable regulations of the Board
of Governors of the Federal Reserve System, in form and substance reasonably
satisfactory to Collateral Agent;
(vi) ALTA/ACSM surveys (or any other surveys available in such state and
reasonably satisfactory to Collateral Agent) of all Closing Date Mortgaged
Properties, certified to Collateral Agent and dated not more than thirty days
prior to the Closing Date and in form and substance reasonably satisfactory to
Collateral Agent.
(vii) fully executed UCC-1 fixture filings for filing in each location
Collateral Agent reasonably determines to be appropriate; and
(viii) an appraisal of each Closing Date Mortgaged Property in form and
substance reasonably acceptable to Collateral Agent.
(m) OTHER COLLATERAL. In order to create in favor of Collateral Agent, for the
benefit of Secured Parties, a valid, perfected First Priority security interest
in the Collateral (other than Real Estate Assets), Collateral Agent shall have
received:
(i) evidence satisfactory to the Collateral Agent of the compliance by each
Credit Party of their obligations under the Pledge and Security Agreement and
the other Collateral Documents (including, without limitation, their obligations
to deliver UCC financing statements, originals of securities,
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instruments and chattel paper and any agreements governing deposit and/or
securities accounts as provided therein).
(ii) A completed Collateral Questionnaire dated the Closing Date and executed by
an Authorized Officer of each Credit Party, together with all attachments
contemplated thereby, including (A) the results of a recent search, by a Person
reasonably satisfactory to Collateral Agent, of all effective UCC financing
statements made with respect to any property, the creation of security interests
in which is governed by the UCC, of any Credit Party in the jurisdictions
specified in the Collateral Questionnaire, together with copies of all such
filings disclosed by such search, and (B) UCC termination statements duly
executed by all applicable Persons for filing in all applicable jurisdictions as
may be necessary to terminate any effective UCC financing statements disclosed
in such search (other than any such financing statements in respect of Permitted
Liens); and
(iii) opinions of counsel (which counsel shall reasonably be satisfactory to
Collateral Agent) with respect to the creation and perfection of the security
interests in favor of Collateral Agent in such Collateral and such other matters
governed by the laws of each jurisdiction in which any Credit Party or any such
Collateral is located as Collateral Agent may reasonably request, in each case
in form and substance reasonably satisfactory to Collateral Agent.
(n) COLLATERAL MATTERS. Each of the Administrative Agent and the Collateral
Agent shall have received evidence that each Credit Party shall have taken or
caused to be taken any other action, executed and delivered or caused to be
executed and delivered any other agreement, document and instrument and made or
caused to be made any other filing and recording (other than as set forth
herein) reasonably required by Collateral Agent.
(o) FINANCIAL STATEMENTS; PROJECTIONS. Lenders shall have received from Holdings
(i) the Historical Financial Statements, (ii) pro forma consolidated and
consolidating balance sheets of Holdings and its Subsidiaries as at the Closing
Date, and reflecting the consummation of the Merger, the related financings and
the other transactions contemplated by the Credit Documents to occur on or prior
to the Closing Date, which pro forma financial statements shall be in form and
substance satisfactory to Administrative Agent and Syndicated Agent, (iii) the
Projections, and (iv) if the Closing Date has not occurred on or prior to August
15, 2002, a certificate of the Chief Financial Officer of Holdings certifying
that the Consolidated Adjusted EBITDA for the four Fiscal Quarters ended on June
30, 2002 is not less than $114.2 million determined on a pro forma basis after
giving effect to the Merger, the related financings and the other transactions
contemplated by the Related Agreements to occur on or prior to the Closing Date.
(p) EVIDENCE OF INSURANCE. Each of Syndication Agent and Administrative Agent
shall have received a certificate from Company's insurance broker or other
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evidence satisfactory to it that all insurance required to be maintained
pursuant to Section 5.5 is in full force and effect and that Administrative
Agent, for the benefit of Lenders has been named as additional insured and loss
payee thereunder to the extent required under Section 5.5.
(q) OPINIONS OF COUNSEL TO CREDIT PARTIES. Lenders and their respective counsel
shall have received originally executed copies of the favorable written opinions
of Fried, Frank, Harris, Shriver & Jacobson, counsel for Credit Parties, in the
form of Exhibit D and as to such other matters as Administrative Agent or
Syndication Agent may reasonably request, dated as of the Closing Date and
otherwise in form and substance reasonably satisfactory to each of
Administrative Agent and Syndication Agent (and each Credit Party hereby
instructs such counsel to deliver such opinions to Agents and Lenders).
(r) OPINIONS OF COUNSEL TO SYNDICATION AGENT. Lenders shall have received
originally executed copies of one or more favorable written opinions of Sullivan
& Cromwell, counsel to Syndication Agent, dated as of the Closing Date, in form
and substance reasonably satisfactory to each of Syndication Agent and
Administrative Agent.
(s) FEES. Company shall have paid to the Agents, the fees payable on the
Closing Date referred to in Section 2.11(e).
(t) SOLVENCY CERTIFICATE; SOLVENCY APPRAISAL. On the Closing Date, Syndication
Agent and Administrative Agent shall have received (i) a Solvency Certificate
from the Chief Financial Officer of Holdings on behalf of Company and (ii) an
opinion from an independent valuation consultant satisfactory to Syndication
Agent and Administrative Agent, each dated the Closing Date and addressed to
Syndication Agent, Administrative Agent and Lenders, and in form, scope and
substance satisfactory to Syndication Agent and Administrative Agent, with
appropriate attachments and demonstrating that after giving effect to the
consummation of the Merger, the related financings and the other transactions
contemplated by the Related Documents to occur on or prior to the Closing Date,
Company and its Subsidiaries are and will be Solvent.
(u) CLOSING DATE CERTIFICATE. Holdings and Company shall have delivered to
Syndication Agent and Administrative Agent an originally executed Closing
Date Certificate, together with all attachments thereto.
(v) CLOSING DATE. Lenders shall have made the Term Loan to Company on or
before August 31, 2002.
(w) NO LITIGATION. The representations and warranties set forth in
Sections 4.13 and 6.4 of the Merger Agreement (subject to the exemptions
and qualifications set forth therein) shall be true and correct as of the
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Closing Date or compliance therewith as of the Closing Date shall have been
waived with the prior approval of Syndication Agent and Administrative Agent.
(x) COMPLETION OF PROCEEDINGS. All partnership, corporate and other proceedings
taken or to be taken in connection with the transactions contemplated hereby and
all documents incidental thereto not previously found acceptable by
Administrative Agent or Syndication Agent and its counsel shall be satisfactory
in form and substance to Administrative Agent and Syndication Agent and such
counsel, and Administrative Agent, Syndication Agent and such counsel shall have
received all such counterpart originals or certified copies of such documents as
Administrative Agent or Syndication Agent may reasonably request.
Each Lender, by delivering its signature page to this Agreement and funding a
Loan on the Closing Date, shall be deemed to have acknowledged receipt of, and
consented to and approved, each Credit Document and each other document required
to be approved by any Agent, Requisite Lenders or Lenders, as applicable on the
Closing Date.
3.2. CONDITIONS TO EACH CREDIT EXTENSION.
(a) CONDITIONS PRECEDENT. The obligation of each Lender to make any Loan, or
Issuing Bank to issue any Letter of Credit, on any Credit Date, including the
Closing Date, are subject to the satisfaction, or waiver in accordance with
Section 10.5, of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed and delivered
Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total
Utilization of Revolving Commitments shall not exceed the Revolving Commitments
then in effect;
(iii) as of such Credit Date, the representations and warranties contained
herein and in the other Credit Documents shall be true and correct in all
material respects on and as of that Credit Date to the same extent as though
made on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all material
respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or
would result from the consummation of the applicable Credit Extension that would
constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative
Agent shall have received all other information required by the applicable
Issuance Notice, and such other documents or information as Issuing Bank
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may reasonably require in connection with the issuance of such Letter of
Credit;
(vi) in the case of a Revolving Loan used in connection with the financing of a
Permitted Acquisition, if (a) the aggregate amount of Permitted Acquisition
Expenses exceeds $10,000,000 or (b) the aggregate amount of Permitted
Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal
Quarters (together with any Permitted Acquisition agreed to and not yet
consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings
shall have delivered a Compliance Certificate representing and warranting and
otherwise demonstrating to the satisfaction of Administrative Agent and
Syndication Agent that, as of such Credit Date, the Leverage Ratio as of the
later of (x) March 30, 2002 and (y) the last day of the most recent Fiscal
Quarter for which financial statements have been delivered to the Lenders
pursuant to Section 5.1(b), determined on a pro forma basis in accordance with
Section 6.8(d) after giving effect to the proposed Credit Extension, shall not
exceed (i) 5.20:1.00 in respect of Fiscal Quarters ending on or prior to June
29, 2003; (ii) 5.00:1.00 in respect of Fiscal Quarters ending after June 30,
2003 and on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of
subsequent Fiscal Quarters; and
(vii) in the case of a Delayed Draw Loan, the Chief Financial Officer of
Holdings shall have delivered a Compliance Certificate representing and
warranting and otherwise demonstrating to the satisfaction of Administrative
Agent and Syndication Agent that, as of such Credit Date, the Leverage Ratio as
of the later of (x) March 30, 2002 and (y) the last day of the most recent
Fiscal Quarter for which quarterly financial statements have been delivered to
Lenders pursuant to Section 5.1(b), determined on a pro forma basis in
accordance with Section 6.8(d) after giving effect to the proposed Credit
Extension, shall not exceed (i) 5.20:1.00 in respect of Fiscal Quarters ending
on or prior to June 29, 2003 or (ii) 5.00:1.00 in respect of subsequent Fiscal
Quarters.
Any Agent or Requisite Lenders shall be entitled, but not obligated
to, request and receive, prior to the making of any Credit Extension, additional
information reasonably satisfactory to the requesting party confirming the
satisfaction of any of the foregoing if, in the good faith judgment of such
Agent or Requisite Lender such request is warranted under the circumstances.
(b) NOTICES. Any Notice shall be executed by an Authorized Officer in a writing
delivered to Administrative Agent. In lieu of delivering a Notice, Company may
give Administrative Agent telephonic notice by the required time of any proposed
borrowing, conversion/continuation or issuance of a Letter of Credit, as the
case may be; PROVIDED each such notice shall be promptly confirmed in writing by
delivery of the applicable Notice to Administrative Agent on or before the
applicable date of borrowing, continuation/conversion or issuance. Neither
Administrative Agent nor any Lender shall incur any liability to Company in
acting upon any telephonic
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notice referred to above that Administrative Agent believes in good faith to
have been given by a duly authorized officer or other person authorized on
behalf of Company or for otherwise acting in good faith.
SECTION 4. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders and Issuing Bank to enter into this
Agreement and to make each Credit Extension to be made thereby, each Credit
Party represents and warrants to each Lender and Issuing Bank, on the Closing
Date and on each Credit Date, that the following statements are true and
correct, except to the extent any representation or warranty relates to a
specific date, in which case such statement shall be true and correct as of such
specific date (it being understood and agreed that the representations and
warranties made on the Closing Date are deemed to be made concurrently with the
consummation of the Merger, the related financings and the other transactions
contemplated by the Related Agreements to occur on the Closing Date).
4.1. ORGANIZATION; REQUISITE POWER AND AUTHORITY; QUALIFICATION. Each of
Holdings and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization as identified
in Schedule 4.1, (b) has all requisite power and authority to own and operate
its properties, to carry on its business as now conducted and as proposed to be
conducted, to enter into the Credit Documents to which it is a party and to
carry out the transactions contemplated thereby, and (c) is qualified to do
business and in good standing in every jurisdiction where its assets are located
and wherever necessary to carry out its business and operations, except in
jurisdictions where the failure to be so qualified or in good standing has not
had, and could not reasonably be expected to have, a Material Adverse Effect.
4.2. CAPITAL STOCK AND OWNERSHIP. The Capital Stock of each of Holdings and its
Subsidiaries has been duly authorized and validly issued and is fully paid and
non-assessable. Except as set forth on Schedule 4.2, as of the date hereof,
there is no existing option, warrant, call, right, commitment or other agreement
to which Holdings or any of its Subsidiaries is a party requiring, and there is
no Capital Stock of Holdings or any of its Subsidiaries outstanding which upon
conversion or exchange would require, the issuance by Holdings or any of its
Subsidiaries of any additional Capital Stock of Holdings or any of its
Subsidiaries or other Securities convertible into, exchangeable for or
evidencing the right to subscribe for or purchase, Capital Stock of Holdings or
any of its Subsidiaries. Schedule 4.2 correctly sets forth the ownership
interest of Holdings and each of its Subsidiaries in their respective
Subsidiaries as of the Closing Date both before and after giving effect to the
Merger, the related financings and other transactions contemplated by the
Related Agreements to occur on the Closing Date.
4.3. DUE AUTHORIZATION. The transactions contemplated by the Credit Documents
are within the corporate powers of each Credit Party and the execution, delivery
and performance of the Credit Documents have been duly authorized by all
necessary action on the part of each Credit Party that is a party thereto.
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4.4. GUARANTOR SUBSIDIARIES. Schedule 4.4 correctly sets forth, as of the
Closing Date, all of Company's Guarantor Subsidiaries who are parties to
this Agreement.
4.5. NO CONFLICT. The execution, delivery and performance by Credit Parties of
the Credit Documents to which they are parties and the consummation of the
transactions contemplated by the Credit Documents do not and will not (a)
violate any provision of any law or any governmental rule or regulation
applicable to Holdings or any of its Subsidiaries, any of the Organizational
Documents of Holdings or any of its Subsidiaries, or any order, judgment or
decree of any court or other agency of government binding on Holdings or any of
its Subsidiaries except to the extent such violation, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect;
(b) conflict with, result in a breach of or constitute (with due notice or lapse
of time or both) a default under any Contractual Obligation of Holdings or any
of its Subsidiaries except to the extent such conflict, breach or default,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect; (c) result in or require the creation or imposition of
any Lien upon any of the properties or assets of Holdings or any of its
Subsidiaries (other than any Liens created under any of the Credit Documents in
favor of Collateral Agent, on behalf of Secured Parties) except to the extent
that the creation or imposition of any such Liens, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect;
or (d) require any approval of stockholders, members or partners or any approval
or consent of any Person under any Contractual Obligation of Holdings or any of
its Subsidiaries, except for such approvals or consents which will be obtained
on or before the Closing Date and disclosed in writing to Lenders and except for
any such approvals or consents the failure of which to obtain, individually or
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
4.6. GOVERNMENTAL CONSENTS. The execution, delivery and performance by Credit
Parties of the Credit Documents to which they are parties and the consummation
of the transactions contemplated by the Credit Documents do not and will not
require any registration with, consent or approval of, or notice to, or other
action to, with or by, any Governmental Authority except as otherwise set forth
in the Merger Agreement, and except for filings and recordings with respect to
the Collateral to be made, or otherwise delivered to Collateral Agent for filing
and/or recordation, as of the Closing Date, and except for such registrations,
consents, approvals, notices or actions the failure of which to obtain,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
4.7. BINDING OBLIGATION. Each Credit Document has been duly executed and
delivered by each Credit Party that is a party thereto and is the legally valid
and binding obligation of such Credit Party, enforceable against such Credit
Party in accordance with its respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally or by equitable principles relating to
enforceability.
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4.8. HISTORICAL FINANCIAL STATEMENTS. The Historical Financial Statements were
prepared in conformity with GAAP and fairly present, in all material respects,
the financial position, on a consolidated basis, of the Persons described in
such financial statements as at the respective dates thereof and the results of
operations and cash flows, on a consolidated basis, of the entities described
therein for each of the periods then ended, subject, in the case of any such
unaudited financial statements, to changes resulting from audit and normal
year-end adjustments. As of the Closing Date, neither Holdings nor any of its
Subsidiaries has any contingent liability or liability for taxes, long-term
lease or unusual forward or long-term commitment that is not reflected in the
Historical Financial Statements or the notes thereto and which in any such case
is material in relation to the business, operations, properties, assets,
condition (financial or otherwise) or prospects of Holdings and any of its
Subsidiaries taken as a whole.
4.9. PROJECTIONS. On and as of the Closing Date, the Projections of Holdings and
its Subsidiaries for the period Fiscal Year 2002 through and including Fiscal
Year 2010 (the "PROJECTIONS") are based on good faith estimates and reasonable
assumptions made by the management of Holdings; PROVIDED, the Projections are
not to be viewed as facts and that actual results during the period or periods
covered by the Projections may differ from such Projections and that the
differences may be material; PROVIDED FURTHER, as of the Closing Date,
management of Holdings believed that the Projections were reasonable and
attainable.
4.10. NO MATERIAL ADVERSE CHANGE. Since December 29, 2001, no event,
circumstance or change has occurred that has caused or evidences, either in
any case or in the aggregate, a continuing Material Adverse Effect.
4.11. ADVERSE PROCEEDINGS, ETC. There are no Adverse Proceedings, individually
or in the aggregate, that could reasonably be expected to have a Material
Adverse Effect. Neither Holdings nor any of its Subsidiaries (a) is in violation
of any applicable laws (including Environmental Laws) that, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect,
or (b) is subject to or in default with respect to any final judgments, writs,
injunctions, decrees, rules or regulations of any court or any federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
4.12. PAYMENT OF TAXES. Except as otherwise permitted under Section 5.3, all
material tax returns and reports of Holdings and its Subsidiaries required to be
filed by any of them have been timely filed, and all taxes shown on such tax
returns to be due and payable and all material assessments, fees and other
governmental charges upon Holdings and its Subsidiaries and upon their
respective properties, assets, income, businesses and franchises which are due
and payable have been paid when due and payable. Holdings knows of no proposed
tax assessment against Holdings or any of its Subsidiaries which is not being
actively contested by Holdings or such Subsidiary in good faith and by
appropriate proceedings; PROVIDED, such
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reserves or other appropriate provisions, if any, as shall be required in
conformity with GAAP shall have been made or provided therefor.
4.13. PROPERTIES.
(a) TITLE. Each of Holdings and its Subsidiaries has (i) good, sufficient and
legal title to (in the case of fee interests in real property), (ii) valid
leasehold interests in (in the case of leasehold interests in real or personal
property), and (iii) good title to (in the case of all other personal property),
all of their respective properties and assets reflected in their respective
Historical Financial Statements referred to in Section 4.8 and in the most
recent financial statements delivered pursuant to Section 5.1, in each case
except for assets disposed of since the date of such financial statements in the
ordinary course of business of Company and its Subsidiaries or as otherwise
permitted under Section 6.9. Except as permitted by this Agreement, all such
properties and assets are free and clear of Liens.
(b) REAL ESTATE. As of the Closing Date, Schedule 4.13 contains a true, accurate
and complete list of (i) all Real Estate Assets, and (ii) all leases, subleases
or assignments of leases (together with all amendments, modifications,
supplements, renewals or extensions of any thereof) affecting each Real Estate
Asset of any Credit Party, regardless of whether such Credit Party is the
landlord or tenant (whether directly or as an assignee or successor in interest)
under such lease, sublease or assignment. Each agreement listed in clause (ii)
of the immediately preceding sentence is in full force and effect and Holdings
does not have knowledge of any default that has occurred and is continuing
thereunder, and each such agreement constitutes the legally valid and binding
obligation of each applicable Credit Party, enforceable against such Credit
Party in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally or by equitable principles.
4.14. ENVIRONMENTAL MATTERS. Except as set forth on Schedule 4.14, (i) neither
Holdings nor any of its Subsidiaries nor any of their respective Facilities or
operations are subject to any outstanding written order, consent decree or
settlement agreement with any Person relating to any Environmental Law, any
Environmental Claim, or any Hazardous Materials Activity, (ii) there are and, to
each of Holdings' and its Subsidiaries' knowledge, have been, no conditions,
occurrences, or Hazardous Materials Activities which could reasonably be
expected to form the basis of an Environmental Claim against Holdings or any of
its Subsidiaries, (iii) neither Holdings nor any of its Subsidiaries has
received any letter or request for information under Section 104 of the
Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C.
9604) or any comparable state law, in each of cases (i), (ii) and
(iii) that, if resolved adversely, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect. Compliance with all
current or reasonably foreseeable future requirements pursuant to or under
Environmental Laws could not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect. No event or condition has occurred or
is
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occurring with respect to Holdings or any of its Subsidiaries relating to any
applicable Environmental Law, any Release of Hazardous Materials, or any
Hazardous Materials Activity which individually or in the aggregate has had, or
could reasonably be expected to have, a Material Adverse Effect, other than the
events and conditions described on Schedule 4.14 as existing on or prior to the
Closing Date.
4.15. NO DEFAULTS. Neither Holdings nor any of its Subsidiaries is in default in
the performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in any of its Contractual Obligations, and no condition
exists which, with the giving of notice or the lapse of time or both, could
constitute such a default, except where the consequences, direct or indirect, of
such default or defaults, if any, could not reasonably be expected to have a
Material Adverse Effect.
4.16 GOVERNMENTAL REGULATION. Neither Holdings nor any of its Subsidiaries is
subject to regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act or the Investment Company Act of 1940 or under any other
federal or state statute or regulation which may limit its ability to incur
Indebtedness or which may otherwise render all or any portion of the Obligations
unenforceable. Neither Holdings nor any of its Subsidiaries is a "registered
investment company" or a company "controlled" by a "registered investment
company" or a "principal underwriter" of a "registered investment company" as
such terms are defined in the Investment Company Act of 1940.
4.17. MARGIN STOCK. Neither Holdings nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock. No part of
the proceeds of the Loans made to such Credit Party will be used to purchase or
carry any such margin stock or to extend credit to others for the purpose of
purchasing or carrying any such margin stock or for any purpose that violates,
or is inconsistent with, the provisions of Regulation T, U or X of the Board of
Governors of the Federal Reserve System.
4.18. EMPLOYEE MATTERS. Neither Holdings nor any of its Subsidiaries is engaged
in any unfair labor practice that could reasonably be expected to have a
Material Adverse Effect. There is (a) no unfair labor practice complaint pending
against Holdings or any of its Subsidiaries, or to the best knowledge of
Holdings and Company, threatened against any of them before the National Labor
Relations Board and no grievance or arbitration proceeding arising out of or
under any collective bargaining agreement that is so pending against Holdings or
any of its Subsidiaries or to the best knowledge of Holdings and Company,
threatened against any of them, (b) no strike or work stoppage in existence or
threatened involving Holdings or any of its Subsidiaries, and (c) to the best
knowledge of Holdings and Company, no union representation question existing
with respect to the employees of Holdings or any of its Subsidiaries and, to the
best knowledge of Holdings and Company, no union organization activity that is
taking place, except (with respect to any matter specified in clause (a), (b) or
(c) above, either individually or in the aggregate) such as is not reasonably
likely to have a Material Adverse Effect.
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4.19. EMPLOYEE BENEFIT PLANS. Except as, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect, (i) Holdings, each
of its Subsidiaries and each of their respective ERISA Affiliates are in
substantial compliance with all applicable provisions and requirements of ERISA
and the Internal Revenue Code and the regulations and published interpretations
thereunder with respect to each Employee Benefit Plan, and have substantially
performed all their obligations under each Employee Benefit Plan, (ii) each
Employee Benefit Plan which is intended to qualify under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter from the
Internal Revenue Service indicating that such Employee Benefit Plan is so
qualified and nothing has occurred subsequent to the issuance of such
determination letter which would cause such Employee Benefit Plan to lose its
qualified status, (iii) no liability to the PBGC (other than required premium
payments) has been or is expected to be incurred by Holdings, any of its
Subsidiaries or any of their ERISA Affiliates, (iv) no ERISA Event has occurred
or is reasonably expected to occur, and (v) Holdings, each of its Subsidiaries
and each of their ERISA Affiliates have complied with the requirements of
Section 515 of ERISA with respect to each Multiemployer Plan and are not in
material "default" (as defined in Section 4219(c)(5) of ERISA) with respect to
payments to a Multiemployer Plan.)
4.20. SOLVENCY. Each Credit Party is and, upon the incurrence of any
Obligation by such Credit Party on any date on which this representation
and warranty is made and after giving effect to the provisions of Section
7.2, will be, Solvent.
4.21. RELATED AGREEMENTS.
(a) DELIVERY. Holdings and Company have delivered to Syndication Agent and
Administrative Agent complete and correct copies of (i) each Related Agreement
and of all exhibits and schedules thereto as of the date hereof and (ii) copies
of any material amendment, restatement, supplement or other modification to or
waiver of each Related Agreement entered into after the date hereof.
(b) REPRESENTATIONS AND WARRANTIES. Except to the extent otherwise expressly set
forth herein or in the schedules hereto, and subject to the qualifications set
forth therein, each of the representations and warranties given by any Credit
Party or the Sponsors in any Related Agreement is true and correct in all
material respects as of the Closing Date (or as of any earlier date to which
such representation and warranty specifically relates).
(c) GOVERNMENTAL APPROVALS. All Governmental Authorizations and all other
authorizations, approvals and consents of any other Person required by the
Related Agreements or to consummate the Merger have been obtained and are in
full force and effect in all material respects.
(d) CONDITIONS PRECEDENT. On the Closing Date, except as disclosed in writing
to the Administrative Agent, (i) all of the conditions to effecting or
consummating the Merger set forth in the Related Agreements have been duly
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satisfied in all material respects or, with the consent of Administrative Agent
and Syndication Agent, waived, and (ii) the Merger has been consummated in all
material respects in accordance with the Related Agreements and all applicable
laws.
4.22. COMPLIANCE WITH STATUTES, ETC. Each of Holdings and its Subsidiaries is in
compliance with all applicable statutes, regulations and orders of, and all
applicable restrictions imposed by, all Governmental Authorities, in respect of
the conduct of its business and the ownership of its property (including
compliance with all applicable Environmental Laws with respect to any Real
Estate Asset or governing its business and the requirements of any permits
issued under such Environmental Laws with respect to any such Real Estate Asset
or the operations of Holdings or any of its Subsidiaries), except such
non-compliance that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
4.23 DISCLOSURE. No representation or warranty of any Credit Party contained in
any Credit Document or in any other documents, certificates or written
statements furnished to Lenders by or on behalf of Holdings or any of its
Subsidiaries for use in connection with the transactions contemplated hereby at
the time such representation or warranty is made contains any untrue statement
of a material fact or omits to state a material fact (known to Holdings or
Company, in the case of any document not furnished by either of them) necessary
in order to make the statements contained herein or therein not misleading in
light of the circumstances in which the same were made. Any projections and pro
forma financial information contained in such materials are based upon good
faith estimates and assumptions believed by Holdings or Company to be reasonable
at the time made, it being recognized by Lenders that such projections as to
future events are not to be viewed as facts and that actual results during the
period or periods covered by any such projections may differ materially from the
projected results. There are no facts known (or which should upon the reasonable
exercise of diligence be known) to Holdings or Company (other than matters of a
general economic nature) that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect and that have not
been disclosed herein or in such other documents, certificates and statements
furnished to Lenders for use in connection with the transactions contemplated
hereby.
SECTION 5. AFFIRMATIVE COVENANTS
Each Credit Party covenants and agrees that so long as any Commitment
is in effect and until payment in full of all Obligations and cancellation or
expiration of all Letters of Credit, each Credit Party shall perform, and shall
cause each of its Subsidiaries to perform, all covenants in this Section 5.
5.1. FINANCIAL STATEMENTS AND OTHER REPORTS. Holdings will deliver to
Administrative Agent and Lenders:
(a) MONTHLY REPORTS. Solely to the Administration Agent, (and to other Lenders
upon request) as soon as available, and in any event within 30 days after
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the end of each month ending after the Closing Date, the consolidated balance
sheet of Holdings and its Subsidiaries as at the end of such month and the
related consolidated statements of income, stockholders' equity and cash flows
of Holdings and its Subsidiaries for such month and for the period from the
beginning of the then current Fiscal Year to the end of such month, setting
forth in each case in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year and the corresponding figures
from the Financial Plan for the current Fiscal Year, to the extent prepared on a
monthly basis, all in reasonable detail, together with a Financial Officer
Certification and a Narrative Report with respect thereto;
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available, and in any event
within 45 days after the end of each of the first three Fiscal Quarters of each
Fiscal Year, the consolidated and consolidating balance sheets of Holdings and
its Subsidiaries as at the end of such Fiscal Quarter and the related
consolidated (and with respect to sales and EBITDA, statements of income,
consolidating) statements of income, stockholders' equity and cash flows of
Holdings and its Subsidiaries for such Fiscal Quarter and for the period from
the beginning of the then current Fiscal Year to the end of such Fiscal Quarter,
setting forth in each case in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year and the corresponding figures
from the Financial Plan for the current Fiscal Year, all in reasonable detail,
together with a Financial Officer Certification and a Narrative Report with
respect thereto;
(c) ANNUAL FINANCIAL STATEMENTS. As soon as available, and in any event within
90 days after the end of each Fiscal Year, (i) the consolidated and
consolidating balance sheets of Holdings and its Subsidiaries as at the end of
such Fiscal Year and the related consolidated (and with respect to sales, EBITDA
and statements of income, consolidating) statements of income, stockholders'
equity and cash flows of Holdings and its Subsidiaries for such Fiscal Year,
setting forth in each case in comparative form the corresponding figures for the
previous Fiscal Year and the corresponding figures from the Financial Plan for
the Fiscal Year covered by such financial statements, in reasonable detail,
together with a Financial Officer Certification and a Narrative Report with
respect thereto; and (ii) with respect to such consolidated financial statements
a report thereon of Ernst & Young or other independent certified public
accountants of recognized national standing selected by Holdings, and reasonably
satisfactory to Administrative Agent (which report shall be unqualified as to
going concern and scope of audit, and shall state that such consolidated
financial statements fairly present, in all material respects, the consolidated
financial position of Holdings and its Subsidiaries as at the dates indicated
and the results of their operations and their cash flows for the periods
indicated in conformity with GAAP applied on a basis consistent with prior years
(except as otherwise disclosed in such financial statements) and that the
examination by such accountants in connection with such consolidated financial
statements has been made in accordance with generally accepted auditing
standards) together (to the extent not inconsistent with the pronouncements of
the Institute of Certified Public Accountants and FASB) with a written statement
by such independent certified public accountants stating whether, in connection
with their audit examination, any failure to comply with the
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terms, covenants, provisions or conditions of Article 5 or Article 6 (insofar as
they relate to the accounting matters) has come to their attention and, if such
a failure to comply has come to their attention, specifying the nature and
period of existence thereof;
(d) COMPLIANCE CERTIFICATE. Together with each delivery of financial statements
of Holdings and its Subsidiaries pursuant to Sections 5.1(b) and 5.1(c), a duly
executed and completed Compliance Certificate;
(e) STATEMENTS OF RECONCILIATION AFTER CHANGE IN ACCOUNTING PRINCIPLES. If, as a
result of any change in accounting principles and policies from those used in
the preparation of the Historical Financial Statements, the consolidated
financial statements of Holdings and its Subsidiaries delivered pursuant to
Section 5.1(b) or 5.1(c) will differ in any material respect from the
consolidated financial statements that would have been delivered pursuant to
such subdivisions had no such change in accounting principles and policies been
made, then, together with the first delivery of such financial statements after
such change, one or more a statements of reconciliation for all such prior
financial statements in form and substance satisfactory to Administrative Agent;
(f) NOTICE OF DEFAULT. Promptly upon any Authorized Officer of Holdings or
Company obtaining knowledge (i) of any condition or event that constitutes a
Default or an Event of Default or that notice has been given to Holdings or
Company with respect thereto; (ii) that any Person has given any notice to
Holdings or any of its Subsidiaries or taken any other action with respect to
any event or condition set forth in Section 8.1(b); or (iii) of the occurrence
of any events or changes that have caused or evidence, individually or in the
aggregate, a Material Adverse Effect, a certificate of its Authorized Officers
specifying the nature and period of existence of such condition, event or
change, or specifying the notice given and action taken by any such Person and
the nature of such claimed Event of Default, Default, default, event or
condition, and what action Company has taken, is taking and proposes to take
with respect thereto;
(g) NOTICE OF LITIGATION. Promptly upon any Authorized Officer of Holdings or
Company obtaining knowledge of (i) the institution of, or non-frivolous written
threat of, any Adverse Proceeding not previously disclosed in writing by Company
to Lenders, or (ii) any material development in any Adverse Proceeding, in each
of the cases (i) or (ii) which if adversely determined, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect, or
which seeks to enjoin or otherwise prevent the consummation of, or to recover
any damages or obtain relief as a result of, the transactions contemplated
hereby, written notice thereof together with such other information as may
reasonably be available to Holdings or Company to enable Lenders and their
counsel to evaluate such matters;
(h) ERISA. (i) Promptly upon becoming aware of the occurrence of or forthcoming
occurrence of any ERISA Event, a written notice specifying the nature thereof,
what action Holdings, any of its Subsidiaries or any of their respective ERISA
Affiliates has taken, is taking or proposes to take
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with respect thereto and, when known, any action taken or threatened by the
Internal Revenue Service, the Department of Labor or the PBGC with respect
thereto; and (ii) upon request in writing, with reasonable promptness, copies of
(1) each Schedule B (Actuarial Information) to the annual report (Form 5500
Series) filed by Holdings, any of its Subsidiaries or any of their respective
ERISA Affiliates with the Internal Revenue Service with respect to each Pension
Plan; (2) all notices received by Holdings, any of its Subsidiaries or any of
their respective ERISA Affiliates from a Multiemployer Plan sponsor concerning
an ERISA Event; and (3) copies of such other documents or governmental reports
or filings relating to any Employee Benefit Plan as Administrative Agent shall
reasonably request;
(i) FINANCIAL PLAN. As soon as practicable and in any event no later than thirty
(30) days prior to the beginning of each Fiscal Year, a consolidated plan and
financial forecast for such Fiscal Year and each Fiscal Year (or portion
thereof) through the final maturity date of the Loans (a "FINANCIAL PLAN"),
including (i) a forecasted consolidated balance sheet and forecasted
consolidated statements of income and cash flows of Holdings and its
Subsidiaries for each such Fiscal Year, together with a statement of forecasted
compliance with the financial covenants in Section 6.8 (including estimates of
the information required in Annex A to the form of Compliance Certificate
attached hereto) for each such Fiscal Year and an explanation of the assumptions
on which such forecasts are based, and (ii) forecasted consolidated statements
of income and cash flows of Holdings and its Subsidiaries for each month of each
such Fiscal Year, together, in each cases (i) and (ii), with an explanation of
the assumptions on which such forecasts are based all in form and substance
reasonably satisfactory to Agents;
(j) INSURANCE REPORT. As soon as practicable and in any event by the last day of
each Fiscal Year, a report in form and substance satisfactory to Administrative
Agent outlining all material insurance coverage maintained as of the date of
such report by Holdings and its Subsidiaries and all material insurance coverage
planned to be maintained by Holdings and its Subsidiaries in the immediately
succeeding Fiscal Year;
(k) NOTICE OF CHANGE IN BOARD OF DIRECTORS. With reasonable promptness, written
notice of any change in the board of directors (or similar governing body) of
Holdings or Company;
(l) ENVIRONMENTAL DISCLOSURE. The materials and information required to be
delivered under Section 5.9(a), as and when required;
(m) INFORMATION REGARDING COLLATERAL. Information required to be delivered
pursuant to Section 3.1(c) of the Pledge and Security Agreement.
(n) OTHER INFORMATION. Promptly upon their becoming available, (i) copies of (A)
all financial statements, reports, notices and proxy statements sent or made
available generally by Holdings to its security holders acting in such capacity
or by any Subsidiary of Holdings to its security holders other than Holdings or
another Subsidiary of Holdings, (B) all regular and periodic reports and all
registration statements and prospectuses, if any,
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filed by Holdings or any of its Subsidiaries with any securities exchange or
with the Securities and Exchange Commission or any governmental or private
regulatory authority, (C) all press releases and other statements made available
generally by Holdings or any of its Subsidiaries to the public concerning
material developments in the business of Holdings or any of its Subsidiaries,
and (ii) such other information and data with respect to Holdings or any of its
Subsidiaries as from time to time may reasonably be requested by Administrative
Agent or any Lender.
5.2. EXISTENCE. Except as otherwise permitted under Section 6.9, each Credit
Party will, and will cause each of its Subsidiaries to, at all times preserve
and keep in full force and effect its existence and all rights and franchises,
licenses and permits material to its business; PROVIDED, no Credit Party or any
of its Subsidiaries shall be required to preserve any such existence, right or
franchise, licenses and permits if such Person's board of directors (or similar
governing body) shall determine that the preservation thereof is no longer
desirable in the conduct of the business of such Person, and that the loss
thereof could not reasonably be expected to have a Material Adverse Effect.
5.3. PAYMENT OF TAXES AND CLAIMS. Each Credit Party will, and will cause each of
its Subsidiaries to, pay all Taxes imposed upon it or any of its properties or
assets or in respect of any of its income, businesses or franchises before any
penalty or fine accrues thereon, and all claims (including claims for labor,
services, materials and supplies) for sums that have become due and payable and
that by law have or may become a Lien upon any of its properties or assets,
prior to the time when any penalty or fine shall be incurred with respect
thereto; PROVIDED, no such Tax or claim need be paid if it is being contested in
good faith by appropriate proceedings promptly instituted and diligently
conducted, so long as (a) adequate reserve or other appropriate provision, as
shall be required in conformity with GAAP shall have been made therefor, and (b)
in the case of a charge or claim which has or may become a Lien against any of
the Collateral, such contest proceedings conclusively operate to stay the sale
of any portion of the Collateral to satisfy such Tax or claim.
5.4. MAINTENANCE OF PROPERTIES. Each Credit Party will, and will cause each of
its Subsidiaries to, maintain or cause to be maintained in good repair, working
order and condition, ordinary wear and tear excepted, all material properties
used or useful in the business of Holdings and its Subsidiaries and from time to
time will make or cause to be made all appropriate repairs, renewals and
replacements thereof.
5.5. INSURANCE. Holdings will maintain or cause to be maintained, with
financially sound and reputable insurers, such public liability insurance, third
party property damage insurance, business interruption insurance and casualty
insurance with respect to liabilities, losses or damage in respect of the
assets, properties and businesses of Holdings and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by Persons of
established reputation engaged in similar businesses, in each case in such
amounts (giving effect to self-insurance), with such deductibles, covering such
risks and otherwise on such terms and conditions as shall be customary for such
Persons. Without limiting the generality of
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the foregoing, Holdings will maintain or cause to be maintained (a) flood
insurance with respect to each Flood Hazard Property that is located in a
community that participates in the National Flood Insurance Program, in each
case in compliance with any applicable regulations of the Board of Governors of
the Federal Reserve System, and (b) first party, property coverage insurance on
the Collateral under such policies of insurance, with such insurance companies,
in such amounts, with such deductibles, and covering such risks as are at all
times carried or maintained under similar circumstances by Persons of
established reputation engaged in similar businesses. Each such policy of
insurance shall (i) name Administrative Agent, on behalf of Lenders as an
additional insured thereunder as its interests may appear and (ii) in the case
of each casualty insurance policy, contain a loss payable clause or endorsement,
satisfactory in form and substance to Administrative Agent, that names
Administrative Agent, on behalf of Lenders as the loss payee thereunder and
provides for at least 30 days' prior written notice to Administrative Agent of
any modification or cancellation of such policy.
5.6. INSPECTIONS. Each Credit Party will, and will cause each of its
Subsidiaries to, permit any authorized representatives designated by any Agent
or Lender to visit and inspect any of the properties of any Credit Party and any
of its respective Subsidiaries, to inspect and copy its and their financial and
accounting records, and to discuss its and their affairs, finances and accounts
with its and their officers and independent public accountants, all upon
reasonable notice and at such reasonable times during normal business hours and
as often as may reasonably be requested. If such visit and inspection occurs at
a time when no Default or Event of Default has occurred and is continuing, such
visit and inspection shall be at the expense of such Lender and, if such visit
and inspection occur at a time when a Default or Event of Default has occurred
and is continuing, such visit and inspection shall be paid by Company pursuant
to Section 10.2. By this provision, each Credit Party authorizes its independent
public accountants to discuss the affairs, finances and accounts of such Credit
Party and its Subsidiaries, PROVIDED, such Credit Party may, if its so chooses,
be present and participate in any such discussion.
5.7. LENDERS MEETINGS. Holdings and Company will, upon the request of
Administrative Agent or Requisite Lenders, participate in a meeting of
Administrative Agent and Lenders once during each Fiscal Year to be held at
Company's corporate offices (or at such other location as may be agreed to by
Company and Administrative Agent) at such time as may be agreed to by Company
and Administrative Agent.
5.8. COMPLIANCE WITH LAWS. Each Credit Party will comply, and shall cause each
of its Subsidiaries and all other Persons, if any, on or occupying any
Facilities to comply, with the requirements of all applicable laws, rules,
regulations and orders of any governmental authority (including all
Environmental Laws), noncompliance with which could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
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5.9. ENVIRONMENTAL.
(a) ENVIRONMENTAL DISCLOSURE. Holdings will deliver to Administrative Agent and
Lenders the following information and materials, in each case to the extent that
they relate to circumstances that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect:
(i) as soon as practicable following receipt thereof, copies of all
environmental audits, investigations, analyses and reports whether prepared by
personnel of Holdings or any of its Subsidiaries or by independent consultants,
governmental authorities or any other Persons, with respect to significant
environmental matters at any Facility or with respect to any Environmental
Claims;
(ii) promptly upon the occurrence thereof, written notice describing in
reasonable detail (A) any Release required to be reported to any federal, state
or local governmental or regulatory agency under any applicable Environmental
Laws, (B) any remedial action taken by Holdings or any other Person in response
to any Hazardous Materials Activities and (C) Holdings or Company's discovery of
any occurrence or condition on any real property adjoining or in the vicinity of
any Facility that could cause such Facility or any part thereof to be subject to
any material restrictions on the ownership, occupancy, transferability or use
thereof under any Environmental Laws;
(iii) as soon as practicable following the sending or receipt thereof by
Holdings or any of its Subsidiaries, a copy of any and all written
communications with respect to (A) any Environmental Claims (B) any Release
required to be reported to any federal, state or local governmental or
regulatory agency, and (C) any request for information from any governmental
agency that suggests such agency is investigating whether Holdings or any of its
Subsidiaries may be potentially responsible for any Hazardous Materials
Activity;
(iv) prompt written notice describing in reasonable detail (A) any proposed
acquisition of stock, assets, or property by Holdings or any of its Subsidiaries
that could reasonably be expected to expose Holdings or any of its Subsidiaries
to, or result in, Environmental Claims or affect the ability of Holdings or any
of its Subsidiaries to maintain in full force and effect all Governmental
Authorizations required under any Environmental Laws for their respective
operations and (B) any proposed action to be taken by Holdings or any of its
Subsidiaries to modify current operations in a manner that could reasonably be
expected to subject Holdings or any of its Subsidiaries to any additional
obligations or requirements under any Environmental Laws; and
(v) with reasonable promptness, such other documents and information as from
time to time may reasonably be requested by Administrative Agent in relation to
any matters disclosed pursuant to this Section 5.9(a).
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(b) HAZARDOUS MATERIALS ACTIVITIES, ETC. Each Credit Party shall promptly take,
and shall cause each of its Subsidiaries promptly to take, any and all actions
necessary to (i) cure any violation of applicable Environmental Laws by such
Credit Party or its Subsidiaries and (ii) make an appropriate response to any
Environmental Claim against such Credit Party or any of its Subsidiaries and
discharge any obligations it may have to any Person thereunder, in each of cases
(i) and (ii) where failure to do so could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
5.10. SUBSIDIARIES. In the event that any Person becomes a Domestic Subsidiary
of Company, whether pursuant to a Permitted Acquisition or otherwise, Company
shall (a) promptly cause such Domestic Subsidiary to become a Guarantor
hereunder and a party to the Intercompany Subordination Agreement and a Grantor
under the Pledge and Security Agreement by executing and delivering to
Administrative Agent and Collateral Agent a Counterpart Agreement, (b) promptly
cause each Person holding Capital Stock of such Domestic Subsidiary (whether or
not a Credit Party) to take all of the actions necessary to grant and to perfect
a First Priority Lien in favor of Collateral Agent for the benefit of the
Secured Parties under the Pledge and Security Agreement in respect of all such
Capital Stock and (c) take all such actions and execute and deliver, or cause to
be executed and delivered, all such documents, instruments, agreements, and
certificates as are similar to those described in Sections 3.1(b), 3.1(l),
3.1(m), 3.1(n) and 3.1(o) in respect of any Collateral required to be secured
for the benefit of Secured Parties under the Pledge and Security Agreement. In
the event that any Person becomes a Foreign Subsidiary of Company, and Capital
Stock of such Foreign Subsidiary is directly owned by Company or by any Domestic
Subsidiary of Company, Company shall, or shall cause such Domestic Subsidiary
to, deliver, all such documents, instruments, agreements, and certificates as
are similar to those described in Section 3.1(b), and Company shall take, or
shall cause such Domestic Subsidiary to take, all of the actions necessary to
grant and to perfect a First Priority Lien in favor of Collateral Agent for the
benefit of Secured Parties under the Pledge and Security Agreement in such
Capital Stock. With respect to each such Subsidiary, Company shall promptly send
to Administrative Agent written notice setting forth with respect to such Person
(i) the date on which such Person became a Subsidiary of Company, and (ii) all
of the data required to be set forth in Schedules 4.1 and 4.2 with respect to
all Subsidiaries of Company; PROVIDED, such written notice shall be deemed to
supplement Schedule 4.1 and 4.2 for all purposes hereof.
5.11. ADDITIONAL MATERIAL REAL ESTATE ASSETS. In the event that any Credit Party
acquires a Material Real Estate Asset or any Real Estate Asset becomes a
Material Real Estate Asset and such interest has not otherwise been made subject
to the Lien of the Collateral Documents in favor of Collateral Agent, for the
benefit of Secured Parties, then such Credit Party, contemporaneously with
acquiring such Material Real Estate Asset or upon any Real Estate Asset becoming
a Material Real Estate Asset, shall take all such actions and execute and
deliver, or cause to be executed and delivered, all such mortgages, documents,
instruments, agreements, opinions and certificates similar to those described in
Sections 3.1(l), 3.1(m) and 3.1(n) with respect to each such Material Real
Estate Asset that Collateral
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Agent shall reasonably request to create in favor of Collateral Agent, for the
benefit of Secured Parties, a valid and, subject to any filing and/or recording
referred to herein, perfected First Priority security interest in such Material
Real Estate Assets. In addition to the foregoing, Company shall, at the request
of Requisite Lenders, deliver, from time to time, to Administrative Agent such
appraisals as are required by law or regulation of Real Estate Assets with
respect to which Collateral Agent has been granted a Lien.
5.12. INTEREST RATE PROTECTION. As soon as reasonably practicable, and in any
event no later than 120 days following the Closing Date and at all times
thereafter, Company shall maintain, or caused to be maintained, in effect one or
more Interest Rate Agreements for a term of not less than two years and
otherwise in form and substance reasonably satisfactory to Administrative Agent
and Syndication Agent, which Interest Rate Agreements shall effectively limit
the Unadjusted Eurodollar Rate Component of the interest costs to Company with
respect to an aggregate notional principal amount of not less than 50% of the
aggregate principal amount of Consolidated Total Debt (excluding any Revolving
Loans) outstanding from time to time (based on the assumption that such notional
principal amount was a Eurodollar Rate Loan with an Interest Period of three
months) at a rate and on terms satisfactory to the Syndication Agent.
5.13. FURTHER ASSURANCES. At any time or from time to time upon the request of
Administrative Agent, each Credit Party will, at its expense, promptly execute,
acknowledge and deliver such further documents and do such other acts and things
as Administrative Agent or Collateral Agent may reasonably request in order to
effect fully the purposes of the Credit Documents. In furtherance and not in
limitation of the foregoing, each Credit Party shall take such actions as
Administrative Agent or Collateral Agent may reasonably request from time to
time to ensure that the Obligations are guarantied by the Guarantors and are
secured by substantially all of the assets of Holdings, and its Subsidiaries and
all of the outstanding Capital Stock of Company and its Subsidiaries (subject to
limitations contained in the Credit Documents with respect to Foreign
Subsidiaries).
5.14. CERTAIN POST-CLOSING MATTERS. Holdings shall have taken all steps
necessary to confirm to the satisfaction of the Collateral Agent on or prior to
the 31st day following the Closing Date, that (a) all of the 2006 Notes of
Holdings shall have been repaid in full, (b) Holdings has granted and perfected
a valid and enforceable security interest in 100% of the Capital Stock of the
Company pursuant to the Pledge and Security Agreement and delivered certificates
in respect of such Capital Stock to the Collateral Agent in accordance with
Section 3.4(c) thereof and (c) the Capital Stock of the Company is not subject
to any Lien other than the security interest in favor of the Collateral Agent
under the Pledge and Security Agreement or any other Lien permitted thereby.
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SECTION 6. NEGATIVE COVENANTS
Each Credit Party covenants and agrees that, so long as any Commitment
is in effect and until payment in full of all Obligations and cancellation or
expiration of all Letters of Credit, such Credit Party shall perform, and shall
cause each of its Subsidiaries to perform, all covenants in this Section 6.
6.1. INDEBTEDNESS. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or
otherwise become or remain directly or indirectly liable with respect to any
Indebtedness, except:
(a) the Obligations;
(b) (i) Indebtedness of any Guarantor Subsidiary to Company or to any other
Guarantor Subsidiary, or of Company to any Guarantor Subsidiary; PROVIDED, (A)
all such Indebtedness shall be evidenced by promissory notes and all such notes
shall be subject to a First Priority Lien pursuant to the Pledge and Security
Agreement, (B) all such Indebtedness shall be unsecured and subordinated in
right of payment to the payment in full of the Obligations pursuant to the terms
and conditions of the applicable promissory notes or the Intercompany
Subordination Agreement, and (C) any payment by any Guarantor Subsidiary under
any guaranty of the Obligations shall result in a pro tanto reduction of the
amount of any such Indebtedness owed by such Guarantor Subsidiary to Company or
to any of its Guarantor Subsidiaries for whose benefit such payment is made;
(ii) Indebtedness of any Foreign Subsidiary to Company or any Guarantor
Subsidiary, PROVIDED, (A) all such Indebtedness shall be evidenced by promissory
notes and all such notes shall be subject to a First Priority Lien pursuant to
the Pledge and Security Agreement and (B) all such Indebtedness shall be
unsecured and subordinated in right of payment to the payment in full of the
Obligations pursuant to the terms and conditions of the applicable promissory
notes or an Intercompany Subordination Agreement; (iii) Indebtedness of any
Foreign Subsidiary to any other Foreign Subsidiary and (iv) Indebtedness between
Company and Holdings arising as a result of Restricted Junior Payments permitted
under Section 6.5(d);
(c) Company and its Guarantor Subsidiaries may become and remain liable with
respect to (i) Senior Subordinated Notes in an aggregate principal amount not to
exceed $350,000,000 at any time outstanding under the Senior Subordinated Note
Indenture; (ii) additional Subordinated Indebtedness the proceeds of which (net
of reasonable costs and expenses associated therewith) are used to repay the
Loans pursuant to Section 2.15(d), PROVIDED, the terms and conditions of such
Subordinated Indebtedness (including the terms and conditions of any guarantees
of or other credit support for such Indebtedness) are not less favorable in any
material respect to Company and its Subsidiaries, the Agents or the Lenders than
the terms and conditions of the Senior Subordinated Notes; and (iii) extensions,
renewals, refinancings or replacements of the Subordinated Indebtedness
permitted under clauses (i) and (ii), PROVIDED, such extensions, renewals,
refinancings or replacements (A) are on terms
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and conditions (including the terms and conditions of any guarantees of or other
credit support for such Indebtedness) not less favorable in any material respect
to Company and its Subsidiaries, the Agents or the Lenders than the terms and
conditions of the Indebtedness being extended, renewed, refinanced or replaced,
(B) do not add as an obligor any Person that would not have been an obligor
under the Indebtedness being extended, renewed, replaced or refinanced, (C) do
not result in a greater principal amount or shorter remaining average life to
maturity than the Indebtedness being extended, renewed, replaced or refinanced
and (D) are not effected at any time when a Default or Event of Default has
occurred and is continuing or would result therefrom;
(d) Indebtedness in respect of (i) netting services, overdraft protections and
otherwise in connection with endorsements of checks and other negotiable
instruments and deposit accounts incurred in the ordinary course of business;
(ii) workers' compensation claims, self-insurance obligations, performance,
surety, release, appeal and similar bonds and completion guarantees incurred in
the ordinary course of business of Company and its Subsidiaries and any
reimbursement obligations in respect of the foregoing; and (iii) indemnification
obligations or obligations in respect of purchase price adjustments or similar
obligations incurred or assumed by Company and its Subsidiaries in connection
with an Asset Sale or sale of Capital Stock of Holdings otherwise permitted
under this Agreement;
(e) guaranties in the ordinary course of business of Company and its
Subsidiaries of the obligations of suppliers, customers, franchisees and
licensees of Holdings and its Subsidiaries;
(f) guaranties by Holdings or Company of Indebtedness of a Guarantor Subsidiary
or guaranties by a Subsidiary of Company of Indebtedness of Company or a
Guarantor Subsidiary with respect, in each case, to Indebtedness otherwise
permitted to be incurred pursuant to this Section 6.1;
(g) Indebtedness described in Schedule 6.1(g), and not exceeding the aggregate
principal amount indicated therein (the "SURVIVING INDEBTEDNESS") and, solely in
the case of the Surviving Capital Leases and Surviving IRBs, any extensions,
renewals, refinancings or replacements thereof, PROVIDED, such extensions,
renewals, refinancings or replacements (i) are on terms and conditions
(including the terms and conditions of any guarantee or other credit support for
such Indebtedness) not less favorable in any material respect to Company and its
Subsidiaries, the Agents or the Lenders than the terms and conditions of the
Indebtedness being extended, renewed, refinanced or replaced, (ii) do not add as
obligor any Person that would not have been an obligor under the Indebtedness
being extended, renewed, replaced or refinanced, (iii) do not result in a
greater principal amount or shorter remaining average life to maturity than the
Indebtedness being extended, renewed, replaced or refinanced and (iv) are not
effected at any time when a Default or Event of Default has occurred and is
continuing or would result therefrom;
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(h) Indebtedness with respect to Capital Leases (in addition to any Surviving
Capital Leases), including Capital Leases acquired in connection with Permitted
Acquisitions, in an aggregate amount at any time outstanding not to exceed the
sum of (i) $10,000,000 PLUS (ii) the excess, if any, of (A) the aggregate amount
of Surviving Capital Leases outstanding as of the Closing Date over (B) the
aggregate amount of Surviving Capital Leases and any extensions, renewals,
refinancings or replacements thereof made in accordance with the proviso of
Section 6.1(g) outstanding as of the date of determination;
(i) Indebtedness of Foreign Subsidiaries (to Persons other than Company or its
Subsidiaries) in an aggregate amount not to exceed $5,000,000 at any time
outstanding;
(j) purchase money Indebtedness in an aggregate amount not to exceed $10,000,000
at any time outstanding (excluding any such Indebtedness of a Person acquired in
connection with a Permitted Acquisition); PROVIDED, any such Indebtedness (i)
shall be secured only by assets acquired in connection with the incurrence of
such Indebtedness, and (ii) shall constitute not less than 90% of the aggregate
consideration paid with respect to such asset;
(k) (i) Indebtedness (other than Capital Leases) of any Person that becomes a
Guarantor Subsidiary after the date hereof pursuant to a Permitted Acquisition
(including purchase money Indebtedness of such Person), which Indebtedness
exists at the time such Person becomes a Subsidiary and is not created in
contemplation of, or in connection with, such Person becoming a Subsidiary; and
(ii) any extensions, renewals, refinancings or replacements of such Indebtedness
which extensions, renewals, refinancings or replacements (A) are on terms and
conditions (including the terms and conditions of any guarantee or other credit
support for such Indebtedness) not less favorable in any material respect to
Company and its Subsidiaries or the Lenders than the terms and conditions of the
Indebtedness being extended, renewed, refinanced or replaced and, (B) do not add
as obligor any Person that would not have been an obligor under the Indebtedness
being extended, renewed, replaced or refinanced, (C) do not result in a greater
principal amount or shorter remaining average life to maturity than the
Indebtedness being extended, renewed, replaced or refinanced and (D) are not
effected at any time when a Default or Event of Default has occurred and is
continuing or would result therefrom; PROVIDED, the aggregate amount of
Indebtedness described in clauses (i) and (ii) does not exceed $10,000,000 at
any time outstanding;
(l) Indebtedness with respect to Financial Hedge Agreements;
(m) senior unsecured Indebtedness of Holdings to rank PARI PASSU with Holdings'
Obligations under its Guaranty, in an aggregate principal amount not to exceed
$50,000,000 at any time outstanding; PROVIDED, the Administrative Agent is
satisfied that the terms and conditions of such Indebtedness (A) provide that
there shall be no payment (whether in Cash or other assets or property, other
than payments-in-kind) of principal, interest, fees,
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expenses or other amounts by Holdings out of the assets or estate of Holdings or
any of its Subsidiaries (other than as a consequence of any acceleration or
event of default) at any time prior to the payment in full of the Obligations,
(B) do not create rights or remedies enforceable against Company or any of its
Subsidiaries, (C) do not provide for covenants, restrictions or limitations on
Holdings in respect of Company and its Subsidiaries, or Events of Default
relating to Company and its Subsidiaries, in each case, that are more
restrictive in any material respect than the analogous provisions of the Senior
Subordinated Notes and (D) provide for a final maturity after the final maturity
of any Loan then outstanding or committed to be lent hereunder; PROVIDED,
FURTHER, 100% of the proceeds of such Indebtedness (net of reasonable costs and
expenses associated therewith, including reasonable fees and expenses of
professional advisors) are contributed as equity capital to Company;
(n) other Indebtedness of Holdings and its Guarantor Subsidiaries, which is
unsecured and subordinated to the Obligations in a manner satisfactory to
Administrative Agent in an aggregate amount not to exceed $10,000,000 at any
time outstanding.
6.2. LIENS. No Credit Party shall, nor shall it permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume or permit to exist any Lien on
or with respect to any property or asset (including any document or instrument
in respect of goods or accounts receivable) of Holdings or any of its
Subsidiaries, whether now owned or hereafter acquired, or any income or profits
therefrom, or file or permit the filing of, or permit to remain in effect, any
financing statement or other similar notice of any Lien with respect to any such
property, asset, income or profits under the UCC of any State or under any
similar recording or notice statute, except:
(a) Liens in favor of Collateral Agent for the benefit of Secured Parties
granted pursuant to any Credit Document;
(b) Liens for Taxes or Liens imposed pursuant to Section 401(a)(29) or 412(n) of
the Internal Revenue Code, in each case, if the underlying obligations are being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted;
(c) statutory Liens of landlords, banks (including rights of set-off), carriers,
warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens
imposed by law (other than any such Lien imposed pursuant to Section 401 (a)(29)
or 412(n) of the Internal Revenue Code or by ERISA), in each case incurred in
the ordinary course of business of Company and its Subsidiaries (i) for amounts
not yet overdue or (ii) for amounts that are overdue and that (in the case of
any such amounts overdue for a period in excess of five days) are being
contested in good faith by appropriate proceedings, so long as such reserves or
other appropriate provisions, if any, as shall be required by GAAP shall have
been made for any such contested amounts;
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(d) Liens incurred in the ordinary course of business of Company and its
Subsidiaries in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, trade contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed money
or other Indebtedness), so long as no foreclosure, sale or similar proceedings
have been commenced with respect to any portion of the Collateral on account
thereof;
(e) easements, rights-of-way, restrictions, encroachments, and other minor
defects or irregularities affecting any Real Estate Asset in title, in each case
which do not and will not materially and adversely affect marketability of title
or the value of such Real Estate Asset or interfere in any material respect with
the ordinary conduct of the business of Holdings or any of its Subsidiaries;
(f) any interest or title in real estate or improvements of a lessor or
sublessor, but only as a lessor, under any lease of real estate permitted
hereunder;
(g) Liens solely on any cash earnest money deposits made by Holdings or any of
its Subsidiaries in connection with any letter of intent or purchase agreement
permitted hereunder;
(h) purported Liens evidenced by the filing of precautionary UCC financing
statements relating solely to personal property leased pursuant to operating
leases entered into in the ordinary course of business of Company and its
Subsidiaries;
(i) Liens in favor of customs and revenue authorities arising as a matter of law
to secure payment of customs duties in connection with the importation of goods;
(j) any zoning or similar law or right reserved to or vested in any governmental
office or agency to control or regulate the use of any real property;
(k) licenses of patents, trademarks and other intellectual property rights
granted by Holdings or any of its Subsidiaries in the ordinary course of
business and not interfering in any respect with the ordinary conduct of the
business of Company or such Subsidiary;
(l) Liens described in Schedule 6.2(l) or on a title report delivered pursuant
to Section 3.1(l)(iv)(A);
(m) Liens securing Indebtedness permitted pursuant to Sections 6.1(j) and
6.1(k), PROVIDED, any such Lien (i) exists on the date of the applicable
acquisition or, solely in the case of Indebtedness permitted in Section 6.1(j),
is created in connection with the financing of the acquisition within 180 days
thereafter, (ii) solely in the case of
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Indebtedness permitted by Section 6.1(k), is not created in contemplation of, or
in connection with, such acquisition, and (iii) applies only to the property or
assets acquired;
(n) (i) Liens in respect of Surviving Capital Leases and Surviving IRBs and
existing as of the Closing Date and any replacement Liens, PROVIDED any such
replacement Lien applies only to assets and property subject to the Lien so
replaced; and (ii) solely during the 30-day period immediately following the
Closing Date, the pledge of common stock of the Company in favor of First Trust
of New York, National Association, as trustee under the Indenture, dated June
18, 1996, in respect of Holding's 2006 Notes; and
(o) other Liens on assets other than the Collateral securing Indebtedness in an
aggregate amount not to exceed $5,000,000 at any time outstanding.
6.3. EQUITABLE LIEN. If any Credit Party or any of its Subsidiaries shall create
or assume any Lien upon any of its properties or assets, whether now owned or
hereafter acquired, other than Permitted Liens, it shall make or cause to be
made effective provisions whereby the Obligations will be secured by such Lien
equally and ratably with any and all other Indebtedness secured thereby as long
as any such Indebtedness shall be so secured; PROVIDED, notwithstanding the
foregoing, this covenant shall not be construed as a consent by Requisite
Lenders to the creation or assumption of any such Lien not otherwise permitted
by Section 6.2.
6.4. NO FURTHER NEGATIVE PLEDGES. No Credit Party nor any of its Subsidiaries
shall enter into any agreement prohibiting the creation or assumption of any
Lien upon any of its properties or assets, whether now owned or hereafter
acquired, except (a) restrictions pursuant to the Credit Documents, any
Subordinated Indebtedness permitted under Section 6.1(c) and any Surviving
Indebtedness permitted under Section 6.1(g), PROVIDED, in the case of
Subordinated Indebtedness and Surviving Indebtedness, that such restrictions are
no more restrictive in any material respect than the applicable restrictions in
the Senior Subordinated Note Documents; (b) customary restrictions pending a
sale of property or assets permitted hereunder arising under an executed
agreement in respect of such sale, PROVIDED, such restrictions relate only to
the property or assets being sold; (c) customary restrictions on assignment,
subletting or other transfers contained in leases, licenses and similar
agreements entered into in the ordinary course of business of Company and its
Subsidiaries, PROVIDED, in each case, such restrictions relate only to the
property subject to such leases, licenses or similar agreements; and (d)
restrictions on property or assets subject to a Lien permitted under Section
6.2(m), PROVIDED, such restrictions relate only to the property or assets
subject to such Lien.
6.5. RESTRICTED JUNIOR PAYMENTS. No Credit Party shall, nor shall it permit any
of its Subsidiaries through any manner or means or through any other Person to,
directly or indirectly, declare, order, pay, make or set apart, or agree to
declare, order, pay, make or set apart, any sum for any Restricted Junior
Payment in respect of such Credit Party or Subsidiary, as
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applicable, except that (a) Company may make regularly scheduled payments of
interest in respect of the Senior Subordinated Notes in accordance with the
terms of, and only to the extent required by, and subject to the subordination
provisions contained in, the Senior Subordinated Note Indenture; (b) Company may
extend, renew, refinance or replace Subordinated Indebtedness to the extent
permitted under Section 6.1(c); (c) any Subsidiary may pay dividends or make
other distributions with respect to any class of its issued and outstanding
Capital Stock or intercompany Indebtedness permitted by clauses (i) through
(iii) of Section 6.1(b); PROVIDED, any dividends and other distributions by a
Subsidiary that is not Wholly-Owned (i) are paid in Cash on a pro rata basis
among the holders of each applicable class of Capital Stock and (ii) are not
made to any Person other than Company or its Subsidiaries at any time when a
Default or Event of Default shall have occurred and be continuing or shall be
caused thereby; (d) so long as no Default or Event of Default shall have
occurred and be continuing or shall be caused thereby, Company may make
Restricted Junior Payments to Holdings (i) in an aggregate amount not to exceed
$1,000,000 in any Fiscal Year, to the extent necessary to permit Holdings to pay
general administrative costs and expenses and to pay franchise taxes and other
fees to maintain its corporate existence, (ii) to the extent necessary to permit
Holdings to discharge the consolidated tax liabilities of Holdings and its
Subsidiaries and (iii) to the extent necessary to fund Restricted Junior
Payments by Holdings in accordance with clause (e) below, PROVIDED, in each of
cases (i), (ii) and (iii) Holdings promptly applies the amount of any such
Restricted Junior Payment for such purpose; and (e) so long as no Default or
Event of Default shall have occurred and be continuing or shall be caused
thereby, the following additional payments may be made to holders or purchasers
of Capital Stock of Holdings and its Subsidiaries: (i) Holdings may purchase its
Capital Stock for Cash from present or former officers and employees of Holdings
or any of its Subsidiaries in accordance with the terms of the Employee Leverage
Program, Stockholder Agreements and stock option plans upon the death,
disability or termination of employment of such officer or employee, PROVIDED,
the aggregate amount of such Restricted Junior Payment does not exceed
$3,000,000 per Fiscal Year and (ii) any Subsidiary acquired in a Permitted
Acquisition may make Cash payments to redeem, retire or repurchase Capital Stock
in such Subsidiary held by a minority investor permitted under clause (iii) of
the definition of "Permitted Acquisition," PROVIDED, in the case of this clause
(ii), the aggregate amount of all such payments by Holdings and its Subsidiaries
(exclusive of amounts permitted by Section 6.5(d)) does not exceed $4,000,000
during any Fiscal Year and $12,000,000 from the Closing Date.
6.6. RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS. Except as provided herein, no
Credit Party shall, nor shall it permit any of its Subsidiaries to, create or
otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Subsidiary of
Company to (a) pay dividends or make any other distributions on any of such
Subsidiary's Capital Stock owned by Company or any other Subsidiary of Company,
(b) repay or prepay any Indebtedness owed by such Subsidiary to Company or any
other Subsidiary of Company, or (c) make loans or advances to Company or any
other Subsidiary of Company, PROVIDED, none of clauses (a) through (c) shall
apply to (i) customary restrictions pending a sale of
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a Subsidiary (or any of its property, assets or Capital Stock) permitted
hereunder which restrictions arise under an executed agreement in respect of
such sale and relate only to the Subsidiary being sold, (ii) restrictions
imposed by applicable law, (iii) restrictions pursuant to the Credit Documents,
any Subordinated Indebtedness permitted under Section 6.1(c), any Surviving
Indebtedness permitted under Section 6.1(g) and Indebtedness of Foreign
Subsidiaries under Section 6.1(i) and (iv) any restrictions existing on cash or
other deposits or net worth imposed by customers under contracts entered into in
the ordinary course of business of Company and its Subsidiaries.
6.7. INVESTMENTS. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, make or own any Investment in any
Person, including without limitation any Joint Venture, except:
(a) Cash and Cash Equivalents;
(b) Investments owned as of the Closing Date in the Capital Stock of any
Subsidiary;
(c) Investments made after the Closing Date in Capital Stock or, to the extent
incurred in accordance with Section 6.1(b), Indebtedness of Company or any
Subsidiary, PROVIDED, no Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, make any Investment in any Foreign
Subsidiary unless on a pro forma basis after giving effect to such Investment as
of the last day of the Fiscal Quarter recently ended, Domestic Subsidiaries
account for (A) at least 80% of the consolidated assets of Holdings and its
Subsidiaries as of the last day of the Fiscal Quarter recently ended and (B) at
least 80% of the consolidated revenues of Holdings and its Subsidiaries for the
last four full Fiscal Quarters recently ended;
(d) Investments made after the Closing Date in Joint Ventures in a business or
line of business permitted for Company under Section 6.13, PROVIDED, (A)
immediately prior to the making of any Investment, and after giving effect
thereto, no Default or Event of Default shall have occurred and be continuing,
(B) all transactions in connection therewith shall be consummated, in all
material respects, in accordance with all applicable laws and in conformity with
all applicable Governmental Authorizations, (C) such Investment can be legally
maintained, and is maintained, as Collateral (but only to the extent of
Company's interest in such Joint Venture) subject to First Priority security
interests on such terms and conditions as are reasonably satisfactory to
Administrative Agent, and (D) the aggregate amount of all Investments in Joint
Ventures pursuant to this clause (d) does not exceed $10,000,000 at any time
outstanding;
(e) Investments (i) in any Securities received from financially troubled account
debtors in satisfaction or partial satisfaction of accounts receivable incurred
in the ordinary course of business of Company and its Subsidiaries, (ii)
deposits, prepayments and other credits to suppliers made in the ordinary course
of business of Company and its Subsidiaries and (iii) prepaid expenses,
negotiable instruments held for collection and
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lease, utility, worker's compensation, performance and other similar deposits
made in the ordinary course of business of Company and its Subsidiaries;
(f) Investments that constitute Restricted Junior Payments permitted under
Section 6.5(e), Consolidated Capital Expenditures permitted under Section 6.8(c)
and Permitted Acquisition Expenses;
(g) Investments existing on the Closing Date and described in Schedule 6.7;
(h) Investments that constitute Financial Hedge Agreements or agreements
permitted under Section 6.18(b); and
(i) other Investments (including loans and advances to officers and employees
for relocation and other expenses) in an aggregate amount not to exceed
$3,000,000 at any time outstanding.
6.8. FINANCIAL COVENANTS.
(a) INTEREST COVERAGE RATIO. Holdings shall not permit the Interest Coverage
Ratio as of the last day of any Fiscal Quarter, beginning with the Fiscal
Quarter ending on or near December 31, 2002 to be less than the correlative
ratio indicated:
FISCAL QUARTER ENDING INTEREST COVERAGE RATIO
December 2002 2.00:1.00
March 2003 2.00:1.00
June 2003 2.00:1.00
September 2003 2.00:1.00
December 2003 2.00:1.00
March 2004 2.00:1.00
June 2004 2.10:1.00
September 2004 2.10:1.00
December 2004 2.15:1.00
March 2005 2.15:1.00
June 2005 2.25:1.00
September 2005 2.25:1.00
December 2005 2.25:1.00
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FISCAL QUARTER ENDING INTEREST COVERAGE RATIO
March 2006 2.25:1.00
June 2006 2.35:1.00
September 2006 2.35:1.00
December 2006 2.35:1.00
March 2007 2.50:1.00
June 2007 2.50:1.00
September 2007 2.50:1.00
December 2007 2.50:1.00
March 2008 2.50:1.00
June 2008 2.50:1.00
September 2008 2.50:1.00
December 2008 2.50:1.00
March 2009 2.50:1.00
June 2009 2.50:1.00
September 2009 2.50:1.00
December 2009 2.50:1.00
March 2010 2.50:1.00
June 2010 2.50:1.00
(b) LEVERAGE RATIO. Holdings shall not permit the Leverage Ratio as of the last
day of any Fiscal Quarter, beginning with the Fiscal Quarter ending on or near
December 31, 2002, to exceed the correlative ratio indicated:
FISCAL QUARTER ENDING LEVERAGE RATIO
December 2002 5.90:1.00
March 2003 5.90:1.00
June 2003 5.90:1.00
September 2003 5.75:1.00
December 2003 5.75:1.00
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FISCAL QUARTER ENDING LEVERAGE RATIO
March 2004 5.75:1.00
June 2004 5.50:1.00
September 2004 5.50:1.00
December 2004 5.25:1.00
March 2005 5.25:1.00
June 2005 5.25:1.00
September 2005 5.00:1.00
December 2005 5.00:1.00
March 2006 4.75:1.00
June 2006 4.75:1.00
September 2006 4.50:1.00
December 2006 4.50:1.00
March 2007 4.50:1.00
June 2007 4.25:1.00
September 2007 4.25:1.00
December 2007 4.25:1.00
March 2008 4.00:1.00
June 2008 4.00:1.00
September 2008 4.00:1.00
December 2008 4.00:1.00
March 2009 4.00:1.00
June 2009 4.00:1.00
September 2009 4.00:1.00
December 2009 4.00:1.00
March 2010 4.00:1.00
June 2010 4.00:1.00
(c) MAXIMUM CONSOLIDATED CAPITAL EXPENDITURES. Except to the extent funded from
the Cash proceeds of Additional Sponsor Equity, Holdings shall not,
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and shall not permit its Subsidiaries to, make or incur Consolidated Capital
Expenditures in any Fiscal Year indicated below in an aggregate amount in excess
of (i) the corresponding amount set forth opposite such Fiscal Year PLUS (ii) an
amount equal to the Additional Net Sales for such Fiscal Year (the sum of (i)
and (ii), together, the "BUDGETED AMOUNT" for such Fiscal Year) PLUS (iii) if
the Budgeted Amount for the immediately preceding Fiscal Year was greater than
the actual amount of Consolidated Capital Expenditures made or incurred by
Holdings or its Subsidiaries for such preceding Fiscal Year, an amount equal to
the lesser of (A) the difference between the Budgeted Amount for such preceding
Fiscal Year and the actual amount of Consolidated Capital Expenditures for such
preceding Fiscal Year and (B) 50% of the Budgeted Amount for such preceding
Fiscal Year:
FISCAL QUARTER ENDING CONSOLIDATED CAPITAL EXPENDITURES
2002 $45,000,000
2003 $50,000,000
2004 $50,000,000
2005 $60,000,000
2006 $60,000,000
2007 $60,000,000
2008 $65,000,000
2009 $65,000,000
2010 $65,000,000
(d) CERTAIN CALCULATIONS. For purposes of determining compliance with the
financial covenants set forth in this Section 6.8 (but not for purposes of
determining the Applicable Margin or Applicable Revolving Commitment Fee
Percentage),
(i) with respect to any period during which a Permitted Acquisition or an Asset
Sale has occurred (each, a "SUBJECT TRANSACTION"), each of Consolidated Adjusted
EBITDA, the components of Consolidated Cash Interest Expense and Additional Net
Sales shall be calculated with respect to such period on a pro forma basis
(including only Permitted Adjustments) using the historical audited financial
statements of any business so acquired or to be acquired or sold or to be sold
and the consolidated financial statements of Holdings and its Subsidiaries which
shall be reformulated as if such Subject Transaction, and any Indebtedness
incurred or repaid in connection therewith, had been consummated or incurred or
repaid at the beginning of such period (and assuming that such Indebtedness
bears interest during any
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portion of the applicable measurement period prior to the relevant acquisition
at the weighted average of the interest rates applicable to outstanding Loans
incurred during such period);
(ii) with respect to any period during which the proceeds of any capital
contribution to, or issuance of Capital Stock of, Holdings ("EQUITY PROCEEDS")
have been applied to make mandatory or voluntary prepayments of Loans, the
components of Consolidated Adjusted EBITDA and Consolidated Cash Interest
Expense shall be calculated with respect to such period on a pro forma basis
(including only pro forma adjustments which are factually supportable and are
expected to have a continuing impact, in each case determined on a basis
consistent with Article 11 of Regulation S-X promulgated under the Securities
Act and as interpreted by the staff of the Securities and Exchange Commission,
which pro forma adjustments shall be certified by the Chief Financial Officer of
Holdings) using historical financial statements which shall be reformulated
(after giving effect to any reformulation required under clause (i) above) as if
such Equity Proceeds had been received, and applicable portion of the Loans
prepaid, at the beginning of such period; and
(iii) with respect to any period including the Fiscal Quarter ended September
30, 2002 or any prior Fiscal Quarter (each an "HISTORICAL QUARTER"),
Consolidated Adjusted EBITDA and Consolidated Cash Interest Expense shall be
calculated in accordance with Schedule 6.8(d)(iii).
6.9. FUNDAMENTAL CHANGES; DISPOSITION OF ASSETS; ACQUISITIONS. No Credit Party
shall, nor shall it permit any of its Subsidiaries to, enter into any
transaction of merger or consolidation, or liquidate, wind-up or dissolve itself
(or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease
(as lessor or sublessor), transfer or otherwise dispose of, in one transaction
or a series of transactions, all or any part of its business, assets or property
of any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, whether now owned or hereafter acquired, or acquire by purchase or
otherwise (other than purchases or other acquisitions of inventory, materials
and equipment in the ordinary course of business of Company and its
Subsidiaries) the business, property or fixed assets of, or Capital Stock or
other evidence of beneficial ownership of, any Person or any business line or
unit or division of any Person, except:
(a) any Subsidiary of Holdings may be merged with or into Company or any
Guarantor Subsidiary, or be liquidated, wound up or dissolved, or all or any
part of its business, property or assets may be conveyed, sold, leased,
transferred or otherwise disposed of, in one transaction or a series of
transactions, to Company or any Guarantor Subsidiary; PROVIDED, in the case of
such a merger, Company or such Guarantor Subsidiary, as applicable, shall be the
continuing or surviving Person;
(b) sales or other dispositions of assets that do not constitute Asset Sales;
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(c) Asset Sales in respect of (i) obsolete, worn out or surplus property
(including obsolete, worn out or surplus property acquired in a Permitted
Acquisition), (ii) property acquired in a Permitted Acquisition which the
Company or any of its Subsidiaries is legally required to divest or (iii) other
property (other than current assets) the proceeds of which (valued at the
principal amount thereof in the case of notes or other debt Securities and
valued at fair market value in the case of other non-Cash proceeds) are less
than $6,000,000 with respect to any single Asset Sale or series of related Asset
Sales pursuant to this clause (iii) and when aggregated with the proceeds of all
such other Asset Sales made by Credit Parties pursuant to this clause (iii)
within the same Fiscal Year, are less than $10,000,000; PROVIDED, in each of
cases (i), (ii) and (iii) the consideration received for such property shall be
in an amount at least equal to the fair market value thereof (determined in good
faith by the board of directors of Holdings), no less than 75% of such
consideration shall be paid in Cash and all related Net Asset Sale Proceeds
shall be applied in accordance with Section 2.16(b);
(d) any Permitted Acquisition by Company or any Guarantor Subsidiary;
(e) any Foreign Subsidiary may be merged with or into any other Foreign
Subsidiary, or be liquidated, wound up or dissolved, or all or any part of the
its business, property or assets may be conveyed, sold, leased, transferred or
otherwise disposed of, in one transaction or a series of transactions, to any
Foreign Subsidiary;
(f) Company may liquidate any of its Subsidiaries that has total net assets (as
shown on the most recent balance sheet of such Subsidiary delivered to the
Agents and at the time of liquidation) of $100,000 or less, PROVIDED, any
Restricted Junior Payments in connection with such liquidation are made in
accordance with Section 6.5;
(g) Sales of Capital Stock in any Subsidiary to qualify directors or allow for
investments by foreign nationals, in either case, to the extent required by
applicable law; and
(h) any Investment permitted under Section 6.7 and any grant of a Permitted
Lien.
6.10. DISPOSAL OF SUBSIDIARY INTERESTS. Except for(i) Liens created under any of
the Credit Documents and (ii) any sale of all (but not less than all) of the
Company's direct and indirect interests in the Capital Stock of any Subsidiary
in compliance with the provisions of Section 6.9, no Credit Party shall, nor
shall it permit any of its Subsidiaries to, (a) directly or indirectly sell,
assign, pledge or otherwise encumber or dispose of any Capital Stock of any of
its Subsidiaries, except to qualify directors or allow for investments by
foreign nationals, in either case, if required by applicable law; or (b) permit
any of its Subsidiaries directly or indirectly to sell, assign, pledge or
otherwise encumber or dispose of any Capital Stock of any of its Subsidiaries,
except to another Credit Party (subject to the restrictions on such disposition
otherwise imposed hereunder), or to qualify directors if required by applicable
law.
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6.11.SALES AND LEASE-BACKS. No Credit Party shall, nor shall it permit any of
its Subsidiaries to, directly or indirectly, become or remain liable as lessee
or as a guarantor or other surety with respect to any lease of any property
(whether real, personal or mixed), whether now owned or hereafter acquired,
which such Credit Party (a) has sold or transferred or is to sell or to transfer
to any other Person (other than Company or any of its Guarantor Subsidiaries),
or (b) intends to use for substantially the same purpose as any other property
which has been or is to be sold or transferred by such Credit Party to any
Person (other than Company or any of its Guarantor Subsidiaries) in connection
with such lease, PROVIDED, the foregoing restriction shall not apply to (i)
sales and lease-backs of equipment and other personal property in the ordinary
course of business of Company and its Subsidiaries which a Credit Party first
acquired not more than 30 days prior to the commencement of the applicable lease
and (ii) sales and lease-backs of real property with an aggregate fair market
value (as sold) not to exceed $1,000,000 at any time outstanding, in each of
cases (i) and (ii) to the extent such transactions are otherwise in compliance
with this Agreement.
6.12. TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES. No Credit Party shall, nor
shall it permit any of its Subsidiaries to, directly or indirectly, enter into
or permit to exist any transaction (including the purchase, sale, lease or
exchange of any property or the rendering of any service) with any holder of 10%
or more of any class of Capital Stock of Holdings or any of its Subsidiaries or
with any Affiliate of Holdings, on terms that are less favorable to it or such
Subsidiary, as the case may be, than those that might be obtained at the time
from a Person who is not such a holder or Affiliate; PROVIDED, the foregoing
restriction shall not apply to (a) any transaction between Company and any
Wholly-Owned Guarantor Subsidiary; (b) reasonable and customary fees paid to
members of the board of directors (or similar governing body) of Holdings and
its Subsidiaries; (c) compensation arrangements for officers and other employees
of Holdings and its Subsidiaries entered into in the ordinary course of business
of Company and its Subsidiaries; (d) transactions in connection with the Merger
described in Schedule 1.1; (e) any Restricted Junior Payment permitted to be
paid pursuant to Section 6.5(c), 6.5(d), or 6.5(e)(i); (f) any issuance of
Securities, or other payments, awards or grants in cash, Securities or otherwise
pursuant to, or the funding of, employment arrangements, stock options and stock
ownership plans (including the Employee Leverage Program) approved by the board
of directors of Holdings, in each case which are otherwise consistent with this
Agreement; (g) sales or issuances of Capital Stock of Holdings to Affiliates of
Company approved by the board of directors of Holdings; and (h) sales of
inventory or other product and arrangements in respect of administrative,
corporate overhead and insurance, legal and similar expenses among Company and
its Subsidiaries in the ordinary course of business.
6.13. CONDUCT OF BUSINESS. From and after the Closing Date, no Credit Party
shall, nor shall it permit any of its Subsidiaries to, engage in any business
other than (a) the businesses engaged in by such Credit Party on the Closing
Date and similar or related businesses and (b) such other lines of business as
may be consented to by Requisite Lenders.
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6.14. PERMITTED ACTIVITIES OF HOLDINGS. Holdings shall not (a) incur, directly
or indirectly, any Indebtedness other than its Obligations under the Credit
Documents or guarantees in respect of Indebtedness of Company or any of its
Subsidiaries otherwise permitted under this Agreement and Indebtedness permitted
under Section 6.1(m); (b) create or suffer to exist any Lien upon any property
or assets now owned or hereafter acquired by it other than the Liens created
under the Collateral Documents to which it is a party or permitted pursuant to
Section 6.2; (c) engage in any business or activity or own any assets other than
(i) holding 100% of the Capital Stock of Company and, through Company, not less
than 80% of the Capital Stock of each of the Subsidiaries of Company; (ii)
performing its obligations and activities incidental thereto under the Credit
Documents, and to the extent not inconsistent therewith, the Related Agreements;
and (iii) making Restricted Junior Payments and Investments to the extent
permitted by this Agreement; (d) consolidate with or merge with or into, or
convey, transfer or lease all or substantially all its assets to, any Person;
(e) sell or otherwise dispose of any Capital Stock of Company; (f) create or
acquire any Subsidiary or make or own any Investment in any Person other than
Company and, through Company, the Subsidiaries of Company; or (g) fail to hold
itself out to the public as a legal entity separate and distinct from all other
Persons.
6.15. AMENDMENTS OR WAIVERS OF CERTAIN RELATED AGREEMENTS. Except as set forth
in Section 6.16, no Credit Party shall nor shall it permit any of its
Subsidiaries to, agree to any material amendment, restatement, supplement or
other modification to, or waiver of, any of its material rights under any
Related Agreement after the Closing Date without in each case obtaining the
prior written consent of Requisite Lenders to such amendment, restatement,
supplement or other modification or waiver.
6.16. AMENDMENTS OR WAIVERS OF OR WITH RESPECT TO SUBORDINATED INDEBTEDNESS. No
Credit Party shall, nor shall it permit any of its Subsidiaries to, amend or
otherwise change the terms of any Subordinated Indebtedness, or make any payment
consistent with an amendment thereof or change thereto, (a) if the effect of
such amendment or change is to increase the interest rate on such Subordinated
Indebtedness, change (to earlier dates) any dates upon which payments of
principal or interest are due thereon, change any event of default or condition
to an event of default with respect thereto (other than to eliminate any such
event of default or increase any grace period related thereto), change the
redemption, prepayment or defeasance provisions thereof, change the
subordination provisions of such Senior Subordinated Notes (or of any guaranty
thereof), or (b) amend or otherwise change the covenants or other provisions
contained in any Subordinated Indebtedness not described in clause (a) of this
Section 6.16 if the effect of such amendment or change, together with all other
amendments or changes made, is to increase the obligations of the obligor
thereunder or to confer any additional material rights on the holders of such
Subordinated Indebtedness (or a trustee or other representative on their behalf)
which would be adverse to any Credit Party or Lenders.
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6.17. FISCAL YEAR. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, change its Fiscal Year.
6.18. DERIVATIVE TRANSACTIONS. No Credit Party shall enter into any agreement
with respect to any swap, forward, future or derivative transaction or option or
similar agreement involving, or settled by reference to, one or more rates,
currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk
or value, other than (a) Financial Hedge Agreements and (b) for the purposes of
hedging the actual exposure of Company and its Subsidiaries to fluctuations in
the price of resin or other raw materials used in the operations of Company and
its Subsidiaries and not for speculative purposes.
SECTION 7. GUARANTY
7.1. GUARANTY OF THE OBLIGATIONS. Subject to the provisions of Section 7.2,
Guarantors jointly and severally hereby irrevocably and unconditionally
guarantee to Administrative Agent for the ratable benefit of the Beneficiaries
the due and punctual payment in full of all Obligations when the same shall
become due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including amounts that would become due but
for the operation of the automatic stay under Section 362(a) of the Bankruptcy
Code, 11 U.S.C. Section 362(a)) (collectively, the "GUARANTEED OBLIGATIONS").
Without limiting the obligations of Holdings under this Section 7, Holdings
shall become a co- obligor under the Notes, on a joint and several basis with
Company, and execute the Notes in such capacity.
7.2. CONTRIBUTION BY GUARANTORS. All Guarantors desire to allocate among
themselves (collectively, the "CONTRIBUTING GUARANTORS"), in a fair and
equitable manner, their obligations arising under this Guaranty. Accordingly, in
the event any payment or distribution is made on any date by a Guarantor (a
"FUNDING GUARANTOR") under this Guaranty that exceeds its Fair Share as of such
date, such Funding Guarantor shall be entitled to a contribution from each of
the other Contributing Guarantors in the amount of such other Contributing
Guarantor's Fair Share Shortfall as of such date, with the result that all such
contributions will cause each Contributing Guarantor's Aggregate Payments to
equal its Fair Share as of such date. "FAIR SHARE" means, with respect to a
Contributing Guarantor as of any date of determination, an amount equal to (a)
the ratio of (i) the Fair Share Contribution Amount with respect to such
Contributing Guarantor to (ii) the aggregate of the Fair Share Contribution
Amounts with respect to all Contributing Guarantors multiplied by (b) the
aggregate amount paid or distributed on or before such date by all Funding
Guarantors under this Guaranty in respect of the obligations Guaranteed. "FAIR
SHARE SHORTFALL" means, with respect to a Contributing Guarantor as of any date
of determination, the excess, if any, of the Fair Share of such Contributing
Guarantor over the Aggregate Payments of such Contributing Guarantor. "FAIR
SHARE CONTRIBUTION AMOUNT" means, with respect to a Contributing Guarantor as of
any date of determination, the maximum aggregate amount of the obligations of
such Contributing Guarantor under this Guaranty that would not render its
obligations hereunder or thereunder subject to
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avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11
of the United States Code or any comparable applicable provisions of state law;
PROVIDED, solely for purposes of calculating the "FAIR SHARE CONTRIBUTION
AMOUNT" with respect to any Contributing Guarantor for purposes of this Section
7.2, any assets or liabilities of such Contributing Guarantor arising by virtue
of any rights to subrogation, reimbursement or indemnification or any rights to
or obligations of contribution hereunder shall not be considered as assets or
liabilities of such Contributing Guarantor. "AGGREGATE PAYMENTS" means, with
respect to a Contributing Guarantor as of any date of determination, an amount
equal to (1) the aggregate amount of all payments and distributions made on or
before such date by such Contributing Guarantor in respect of this Guaranty
(including, without limitation, in respect of this Section 7.2), minus (2) the
aggregate amount of all payments received on or before such date by such
Contributing Guarantor from the other Contributing Guarantors as contributions
under this Section 7.2. The amounts payable as contributions hereunder shall be
determined as of the date on which the related payment or distribution is made
by the applicable Funding Guarantor. The allocation among Contributing
Guarantors of their obligations as set forth in this Section 7.2 shall not be
construed in any way to limit the liability of any Contributing Guarantor
hereunder. Each Guarantor is a third party beneficiary to the contribution
agreement set forth in this Section 7.2.
7.3. PAYMENT BY GUARANTORS. Subject to Section 7.2, Guarantors hereby jointly
and severally agree, in furtherance of the foregoing and not in limitation of
any other right which any Beneficiary may have at law or in equity against any
Guarantor by virtue hereof, that upon the failure of Company to pay any of the
Guaranteed Obligations when and as the same shall become due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or otherwise
(including amounts that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. Section 362(a)),
Guarantors will upon demand pay, or cause to be paid, in Cash, in same day
funds, to Administrative Agent for the ratable benefit of Beneficiaries, an
amount equal to the sum of the unpaid principal amount of all Guaranteed
Obligations then due as aforesaid, accrued and unpaid interest on such
Guaranteed Obligations (including interest which, but for Company's becoming the
subject of a case under the Bankruptcy Code, would have accrued on such
Guaranteed Obligations, whether or not a claim is allowed against Company for
such interest in the related bankruptcy case) and all other Guaranteed
Obligations then owed to Beneficiaries as aforesaid.
7.4. LIABILITY OF GUARANTORS ABSOLUTE. Each Guarantor agrees that its
obligations hereunder are irrevocable, absolute, independent and unconditional
and shall not be affected by any circumstance which constitutes a legal or
equitable discharge of a guarantor or surety other than payment in full of the
Guaranteed Obligations or the release of such Guarantor permitted by the Credit
Documents. In furtherance of the foregoing and without limiting the generality
thereof, each Guarantor agrees as follows:
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(a) this Guaranty is a guaranty of payment when due and not of collectability.
This Guaranty is a primary obligation of each Guarantor and not merely a
contract of surety;
(b) Administrative Agent may enforce this Guaranty upon the occurrence of an
Event of Default notwithstanding the existence of any dispute between Company
and any Beneficiary with respect to the existence of such Event of Default;
(c) the obligations of each Guarantor hereunder are independent of the
obligations of Company and the obligations of any other guarantor (including any
other Guarantor) of the obligations of Company, and a separate action or actions
may be brought and prosecuted against such Guarantor whether or not any action
is brought against Company or any of such other guarantors and whether or not
Company is joined in any such action or actions;
(d) payment by any Guarantor of a portion, but not all, of the Guaranteed
Obligations shall in no way limit, affect, modify or abridge any Guarantor's
liability for any portion of the Guaranteed Obligations which has not been paid.
Without limiting the generality of the foregoing, if Administrative Agent is
awarded a judgment in any suit brought to enforce any Guarantor's covenant to
pay a portion of the Guaranteed Obligations, such judgment shall not be deemed
to release such Guarantor from its covenant to pay the portion of the Guaranteed
Obligations that is not the subject of such suit, and such judgment shall not,
except to the extent satisfied by such Guarantor, limit, affect, modify or
abridge any other Guarantor's liability hereunder in respect of the Guaranteed
Obligations;
(e) any Beneficiary, upon such terms as it deems appropriate, without notice or
demand and without affecting the validity or enforceability hereof or giving
rise to any reduction, limitation, impairment, discharge or termination of any
Guarantor's liability hereunder, from time to time may (i) renew, extend,
accelerate, increase the rate of interest on, or otherwise change the time,
place, manner or terms of payment of the Guaranteed Obligations; (ii) settle,
compromise, release or discharge, or accept or refuse any offer of performance
with respect to, or substitutions for, the Guaranteed Obligations or any
agreement relating thereto and/or subordinate the payment of the same to the
payment of any other obligations; (iii) request and accept other guaranties of
the Guaranteed Obligations and take and hold security for the payment hereof or
the Guaranteed Obligations; (iv) release, surrender, exchange, substitute,
compromise, settle, rescind, waive, alter, subordinate or modify, with or
without consideration, any security for payment of the Guaranteed Obligations,
any other guaranties of the Guaranteed Obligations, or any other obligation of
any Person (including any other Guarantor) with respect to the Guaranteed
Obligations; (v) enforce and apply any security now or hereafter held by or for
the benefit of such Beneficiary in respect hereof or the Guaranteed Obligations
and direct the order or manner of sale thereof, or exercise any other right or
remedy that such Beneficiary may have against any such security, in each case as
such Beneficiary in its discretion may determine consistent herewith or the
applicable Financial
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Hedge Agreement and any applicable security agreement, including foreclosure on
any such security pursuant to one or more judicial or nonjudicial sales, whether
or not every aspect of any such sale is commercially reasonable, and even though
such action operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of any Guarantor against Company or any
security for the Guaranteed Obligations; and (vi) exercise any other rights
available to it under the Credit Documents or the Financial Hedge Agreements;
and
(f) this Guaranty and the obligations of Guarantors hereunder shall be valid and
enforceable and shall not be subject to any reduction, limitation, impairment,
discharge or termination for any reason (other than payment in full of the
Guaranteed Obligations), including the occurrence of any of the following,
whether or not any Guarantor shall have had notice or knowledge of any of them:
(i) any failure or omission to assert or enforce or agreement or election not to
assert or enforce, or the stay or enjoining, by order of court, by operation of
law or otherwise, of the exercise or enforcement of, any claim or demand or any
right, power or remedy (whether arising under the Credit Documents or the
Financial Hedge Agreements, at law, in equity or otherwise) with respect to the
Guaranteed Obligations or any agreement relating thereto, or with respect to any
other guaranty of or security for the payment of the Guaranteed Obligations;
(ii) any rescission, waiver, amendment or modification of, or any consent to
departure from, any of the terms or provisions (including provisions relating to
events of default) hereof, any of the other Credit Documents, any of the
Financial Hedge Agreements or any agreement or instrument executed pursuant
thereto, or of any other guaranty or security for the Guaranteed Obligations, in
each case whether or not in accordance with the terms hereof or such Credit
Document, such Financial Hedge Agreement or any agreement relating to such other
guaranty or security; (iii) the Guaranteed Obligations, or any agreement
relating thereto, at any time being found to be illegal, invalid or
unenforceable in any respect; (iv) the application of payments received from any
source (other than payments received pursuant to the other Credit Documents or
any of the Financial Hedge Agreements or from the proceeds of any security for
the Guaranteed Obligations, except to the extent such security also serves as
collateral for indebtedness other than the Guaranteed Obligations) to the
payment of indebtedness other than the Guaranteed Obligations, even though any
Beneficiary might have elected to apply such payment to any part or all of the
Guaranteed Obligations; (v) any Beneficiary's consent to the change,
reorganization or termination of the corporate structure or existence of
Holdings or any of its Subsidiaries and to any corresponding restructuring of
the Guaranteed Obligations; (vi) any failure to perfect or continue perfection
of a security interest in any collateral which secures any of the Guaranteed
Obligations; (vii) any defenses, set-offs or counterclaims which Company may
allege or assert against any Beneficiary in respect of the Guaranteed
Obligations, including failure of consideration, breach of warranty, payment,
statute of frauds, statute of limitations, accord and satisfaction and usury;
and (viii) any other act or thing or omission, or delay to do any other act or
thing, which may or might in any manner or to any extent vary the risk of any
Guarantor as an obligor in respect of the Guaranteed Obligations.
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7.5. WAIVERS BY GUARANTORS. Each Guarantor hereby waives, for the benefit of
Beneficiaries: (a) any right to require any Beneficiary, as a condition of
payment or performance by such Guarantor, to (i) proceed against Company, any
other guarantor (including any other Guarantor) of the Guaranteed Obligations or
any other Person, (ii) proceed against or exhaust any security held from
Company, any such other guarantor or any other Person, (iii) proceed against or
have resort to any balance of any Deposit Account or credit on the books of any
Beneficiary in favor of Company or any other Person, or (iv) pursue any other
remedy in the power of any Beneficiary whatsoever; (b) any defense arising by
reason of the incapacity, lack of authority or any disability or other defense
of Company or any other Guarantor including any defense based on or arising out
of the lack of validity or the unenforceability of the Guaranteed Obligations or
any agreement or instrument relating thereto or by reason of the cessation of
the liability of Company or any other Guarantor from any cause other than
payment in full of the Guaranteed Obligations; (c) any defense based upon any
statute or rule of law which provides that the obligation of a surety must be
neither larger in amount nor in other respects more burdensome than that of the
principal; (d) any defense based upon any Beneficiary's errors or omissions in
the administration of the Guaranteed Obligations, except behavior which amounts
to bad faith; (e) (i) any principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms hereof and any legal
or equitable discharge of such Guarantor's obligations hereunder, (ii) the
benefit of any statute of limitations affecting such Guarantor's liability
hereunder or the enforcement hereof, (iii) any rights to set-offs, recoupments
and counterclaims, and (iv) promptness, diligence and any requirement that any
Beneficiary protect, secure, perfect or insure any security interest or lien or
any property subject thereto; (f) notices, demands, presentments, protests,
notices of protest, notices of dishonor and notices of any action or inaction,
including acceptance hereof, notices of default hereunder, the Financial Hedge
Agreements or any agreement or instrument related thereto, notices of any
renewal, extension or modification of the Guaranteed Obligations or any
agreement related thereto, notices of any extension of credit to Company and
notices of any of the matters referred to in Section 7.4 and any right to
consent to any thereof; and (g) any defenses or benefits that may be derived
from or afforded by law which limit the liability of or exonerate guarantors or
sureties, or which may conflict with the terms hereof.
7.6. GUARANTORS' RIGHTS OF SUBROGATION, CONTRIBUTION, ETC. Until the Guaranteed
Obligations shall have been indefeasibly paid in full and the Revolving
Commitments shall have terminated and all Letters of Credit shall have expired
or been cancelled, each Guarantor hereby waives any claim, right or remedy,
direct or indirect, that such Guarantor now has or may hereafter have against
Company or any other Guarantor or any of its assets in connection with this
Guaranty or the performance by such Guarantor of its obligations hereunder, in
each case whether such claim, right or remedy arises in equity, under contract,
by statute, under common law or otherwise and including without limitation (a)
any right of subrogation, reimbursement or indemnification that such Guarantor
now has or may hereafter have against Company with respect to the Guaranteed
Obligations, (b) any right to enforce, or to participate in, any claim, right or
remedy that any Beneficiary now has or may hereafter have against Company, and
(c)
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any benefit of, and any right to participate in, any collateral or security now
or hereafter held by any Beneficiary. In addition, until the Guaranteed
Obligations shall have been indefeasibly paid in full and the Revolving
Commitments shall have terminated and all Letters of Credit shall have expired
or been cancelled, each Guarantor shall withhold exercise of any right of
contribution such Guarantor may have against any other guarantor (including any
other Guarantor) of the Guaranteed Obligations, including, without limitation,
any such right of contribution as contemplated by Section 7.2. Each Guarantor
further agrees that, to the extent the waiver or agreement to withhold the
exercise of its rights of subrogation, reimbursement, indemnification and
contribution as set forth herein is found by a court of competent jurisdiction
to be void or voidable for any reason, any rights of subrogation, reimbursement
or indemnification such Guarantor may have against Company or against any
collateral or security, and any rights of contribution such Guarantor may have
against any such other guarantor, shall be junior and subordinate to any rights
any Beneficiary may have against Company, to all right, title and interest any
Beneficiary may have in any such collateral or security, and to any right any
Beneficiary may have against such other guarantor. If any amount shall be paid
to any Guarantor on account of any such subrogation, reimbursement,
indemnification or contribution rights at any time when all Guaranteed
Obligations shall not have been finally and indefeasibly paid in full, such
amount shall be held in trust for Administrative Agent on behalf of
Beneficiaries and shall forthwith be paid over to Administrative Agent for the
benefit of Beneficiaries to be credited and applied against the Guaranteed
Obligations, whether matured or unmatured, in accordance with the terms hereof.
7.7. SUBORDINATION OF OTHER OBLIGATIONS. Any Indebtedness of Company or any
Guarantor now or hereafter held by any Guarantor (the "OBLIGEE GUARANTOR") is
hereby subordinated in right of payment to the Guaranteed Obligations, and any
such indebtedness collected or received by the Obligee Guarantor after an Event
of Default has occurred and is continuing shall be held in trust for
Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over
to Administrative Agent for the benefit of Beneficiaries to be credited and
applied against the Guaranteed Obligations but without affecting, impairing or
limiting in any manner the liability of the Obligee Guarantor under any other
provision hereof.
7.8. CONTINUING GUARANTY. This Guaranty is a continuing guaranty and shall
remain in effect until all of the Guaranteed Obligations shall have been paid in
full and the Revolving Commitments shall have terminated and all Letters of
Credit shall have expired or been cancelled. Each Guarantor hereby irrevocably
waives any right to revoke this Guaranty as to future transactions giving rise
to any Guaranteed Obligations.
7.9. AUTHORITY OF GUARANTORS OR COMPANY. It is not necessary for any Beneficiary
to inquire into the capacity or powers of any Guarantor or Company or the
officers, directors or any agents acting or purporting to act on behalf of any
of them.
7.10. FINANCIAL CONDITION OF COMPANY. Any Credit Extension may be made to
Company or continued from time to time, and any Financial Hedge Agreements
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may be entered into from time to time, in each case without notice to or
authorization from any Guarantor regardless of the financial or other condition
of Company at the time of any such grant or continuation or at the time such
Financial Hedge Agreement is entered into, as the case may be. No Beneficiary
shall have any obligation to disclose or discuss with any Guarantor its
assessment, or any Guarantor's assessment, of the financial condition of
Company. Each Guarantor has adequate means to obtain information from Company on
a continuing basis concerning the financial condition of Company and its ability
to perform its obligations under the Credit Documents and the Financial Hedge
Agreements, and each Guarantor assumes the responsibility for being and keeping
informed of the financial condition of Company and of all circumstances bearing
upon the risk of nonpayment of the Guaranteed Obligations. Each Guarantor hereby
waives and relinquishes any duty on the part of any Beneficiary to disclose any
matter, fact or thing relating to the business, operations or conditions of
Company now known or hereafter known by any Beneficiary.
7.11. BANKRUPTCY, ETC. (a) Without limiting any Guarantor's ability to file a
voluntary bankruptcy petition in respect of itself, so long as any Guaranteed
Obligations remain outstanding, no Guarantor shall, without the prior written
consent of Administrative Agent acting pursuant to the instructions of Requisite
Lenders, commence or join with any other Person in commencing any bankruptcy,
reorganization or insolvency case or proceeding of or against Company or any
other Guarantor. The obligations of Guarantors hereunder shall not be reduced,
limited, impaired, discharged, deferred, suspended or terminated by any case or
proceeding, voluntary or involuntary, involving the bankruptcy, insolvency,
receivership, reorganization, liquidation or arrangement of Company or any other
Guarantor or by any defense which Company or any other Guarantor may have by
reason of the order, decree or decision of any court or administrative body
resulting from any such proceeding.
(b) Each Guarantor acknowledges and agrees that any interest on any portion of
the Guaranteed Obligations which accrues after the commencement of any case or
proceeding referred to in clause (a) above (or, if interest on any portion of
the Guaranteed Obligations ceases to accrue by operation of law by reason of the
commencement of such case or proceeding, such interest as would have accrued on
such portion of the Guaranteed Obligations if such case or proceeding had not
been commenced) shall be included in the Guaranteed Obligations because it is
the intention of Guarantors and Beneficiaries that the Guaranteed Obligations
which are guaranteed by Guarantors pursuant hereto should be determined without
regard to any rule of law or order which may relieve Company of any portion of
such Guaranteed Obligations. Guarantors will permit any trustee in bankruptcy,
receiver, debtor in possession, assignee for the benefit of creditors or similar
person to pay Administrative Agent, or allow the claim of Administrative Agent
in respect of, any such interest accruing after the date on which such case or
proceeding is commenced.
(c) In the event that all or any portion of the Guaranteed Obligations are paid
by Company, the obligations of Guarantors hereunder shall continue and
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remain in full force and effect or be reinstated, as the case may be, in the
event that all or any part of such payment(s) are rescinded or recovered
directly or indirectly from any Beneficiary as a preference, fraudulent transfer
or otherwise, and any such payments which are so rescinded or recovered shall
constitute Guaranteed Obligations for all purposes hereunder.
7.12. DISCHARGE OF GUARANTY UPON SALE OF GUARANTOR. If all of the Capital Stock
of any Guarantor or any of its successors in interest hereunder shall be sold or
otherwise disposed of (including by merger or consolidation) in a transaction
consummated in accordance with the terms and conditions hereof, the Guaranty of
such Guarantor or such successor in interest, as the case may be, hereunder
shall automatically be discharged and released without any further action by any
Beneficiary or any other Person effective as of the time of such disposition.
SECTION 8. EVENTS OF DEFAULT
8.1. EVENTS OF DEFAULT. If any one or more of the following conditions or events
shall occur:
(a) FAILURE TO MAKE PAYMENTS WHEN DUE. Failure by Company to pay (i) when due
any installment of principal of any Loan, whether at stated maturity, by
acceleration, by notice of voluntary prepayment, by mandatory prepayment or
otherwise; (ii) when due any amount payable to Issuing Bank in reimbursement of
any Letter of Credit Disbursement; or (iii) any interest on any Loan or any fee
or any other amount due hereunder within three days after the date due; or
(b) DEFAULT IN OTHER AGREEMENTS. (i) Failure of any Credit Party or any of their
respective Subsidiaries to pay when due any principal of or interest on or any
other amount payable in respect of one or more items of Indebtedness (other than
Indebtedness referred to in Section 8.1(a)) in an individual principal amount of
$5,000,000 or more or with an aggregate principal amount of $15,000,000 or more,
in each case beyond the grace period, if any, provided therefor; or (ii) breach
or default by any Credit Party with respect to any other material term of (1)
one or more items of Indebtedness in the individual or aggregate principal
amounts referred to in clause (i) above or (2) any loan agreement, mortgage,
indenture or other agreement relating to such item(s) of Indebtedness, in each
case beyond the grace period, if any, provided therefor, if the effect of such
breach or default is to cause, or to permit the holder or holders of that
Indebtedness (or a trustee on behalf of such holder or holders), to cause, that
Indebtedness to become or be declared due and payable (or redeemable) prior to
its stated maturity or the stated maturity of any underlying obligation, as the
case may be; or
(c) BREACH OF CERTAIN COVENANTS. Failure of any Credit Party to perform or
comply with any term or condition contained in Section 2.7, Section 5.2 (solely
in respect of the Company), Section 5.14 or Section 6 or in Section 3 of the
Pledge and Security Agreement; or
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(d) BREACH OF REPRESENTATIONS, ETC. Any representation, warranty, certification
or other statement made or deemed made by any Credit Party in any Credit
Document or in any statement or certificate at any time given by any Credit
Party or any of its Subsidiaries in writing pursuant hereto or thereto shall be
false in any material respect as of the date made or deemed made; or
(e) OTHER DEFAULTS UNDER CREDIT DOCUMENTS. Any Credit Party shall default in the
performance of or compliance with any term contained herein or any of the other
Credit Documents, other than any such term referred to in any other Section of
this Section 8.1, and such default shall not have been remedied or waived within
30 days after the earlier of (i) an Authorized Officer of Company or Holdings
becoming aware of such default or (ii) receipt by Company of notice from
Administrative Agent or any Lender of such default; or
(f) INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. (i) A court of
competent jurisdiction shall enter a decree or order for relief in respect of
Holdings or any of its Subsidiaries (other than Excluded Foreign Subsidiaries)
in an involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which decree
or order is not stayed; or any other similar relief shall be granted under any
applicable federal, state or foreign law; or (ii) an involuntary case shall be
commenced against Holdings or any of its Subsidiaries (other than an Excluded
Foreign Subsidiary) under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect; or a decree or
order of a court having jurisdiction in the premises for the appointment of a
receiver, liquidator, sequestrator, trustee, custodian or other officer having
similar powers over Holdings or any of its Subsidiaries (other than an Excluded
Foreign Subsidiary), or over all or a substantial part of its property, shall
have been entered; or there shall have occurred the involuntary appointment of
an interim receiver, trustee or other custodian of Holdings or any of its
Subsidiaries (other than an Excluded Foreign Subsidiary) for all or a
substantial part of its property; or a warrant of attachment, execution or
similar process shall have been issued against any substantial part of the
property of Holdings or any of its Subsidiaries (other than an Excluded Foreign
Subsidiary), and any such event described in this clause (ii) shall continue for
60 days without having been dismissed, bonded or discharged; or
(g) VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. (i) Holdings or any of
its Subsidiaries (other than an Excluded Foreign Subsidiary) shall have an order
for relief entered with respect to it or shall commence a voluntary case under
the Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect, or shall consent to the entry of an
order for relief in an involuntary case, or to the conversion of an involuntary
case to a voluntary case, under any such law, or shall consent to the
appointment of or taking possession by a receiver, trustee or other custodian
for all or a substantial part of its property; or Holdings or any of its
Subsidiaries (other than Excluded Foreign Subsidiaries) shall make any
assignment for the benefit of creditors; or (ii) Holdings or any of its
Subsidiaries (other than an Excluded Foreign
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Subsidiary) shall be unable, or shall fail generally, or shall admit in writing
its inability, to pay its debts as such debts become due; or the board of
directors (or similar governing body or any committee thereof) of Holdings or
any of its Subsidiaries (other than an Excluded Foreign Subsidiary) shall adopt
any resolution or otherwise authorize any action to approve any of the actions
referred to herein or in Section 8.1(f); or
(h) JUDGMENTS AND ATTACHMENTS. Any money judgment, writ or warrant of attachment
or similar process involving (i) in any individual case an amount in excess of
$5,000,000 or (ii) in the aggregate at any time an amount in excess of
$15,000,000 (in either case to the extent not adequately covered by insurance as
to which a solvent and unaffiliated insurance company has acknowledged coverage)
shall be entered or filed against Holdings or any of its Subsidiaries or any of
their respective assets and shall remain undischarged, unvacated, unbonded or
unstayed for a period of 60 days (or in any event later than five days prior to
the date of any proposed sale thereunder); or
(i) DISSOLUTION. Any order, judgment or decree shall be entered against any
Credit Party decreeing the dissolution or split up of such Credit Party and such
order shall remain undischarged or unstayed for a period in excess of 30 days;
or
(j) EMPLOYEE BENEFIT PLANS. (i) There shall occur one or more ERISA Events which
individually or in the aggregate (A) have or could reasonably be expected to
have a Material Adverse Effect, (B) have resulted in liabilities of Holdings,
its Subsidiaries or any of their ERISA Affiliates, taken together, in excess of
$10,000,000 which liabilities (1) have continued for a period of 60 days without
being paid, waived or otherwise discharged and (2) are not being contested in
good faith by appropriate proceedings or (ii) there shall be imposed a Lien or
security interest under Section 401(a)(29) or Section 412(n) of the Internal
Revenue Code or under ERISA on Collateral which Lien or security interest (1)
has continued in effect for a period of 60 days without being discharged and (2)
is not being contested in good faith by appropriate proceedings; or
(k) CHANGE OF CONTROL. A Change of Control shall occur; or
(l) GUARANTIES, COLLATERAL DOCUMENTS AND OTHER CREDIT DOCUMENTS. At any time
after the execution and delivery thereof, (i) the Guaranty for any reason, other
than the satisfaction in full of all Obligations, shall cease to be in full
force and effect (other than in accordance with its terms) or shall be declared
to be null and void or any Guarantor shall repudiate its obligations thereunder,
(ii) this Agreement or any Collateral Document ceases to be in full force and
effect (other than by reason of a release of Collateral in accordance with the
terms hereof or thereof or the satisfaction in full of the Obligations in
accordance with the terms hereof) or shall be declared null and void, or
Collateral Agent shall not have or shall cease to have a valid and perfected
Lien in any Collateral purported to be covered by the Collateral Documents with
the priority required by the relevant Collateral Document (unless released
pursuant to
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the terms of the Credit Documents), in each case for any reason other than the
failure of Collateral Agent or any Secured Party to take any action within its
control, or (iii) any Credit Party shall contest the validity or enforceability
of any Credit Document in writing or deny in writing that it has any further
liability, including with respect to future advances by Lenders, under any
Credit Document to which it is a party;
THEN, (1) upon the occurrence of any Event of Default described in Section
8.1(f) or 8.1(g) with respect to Company or Holdings, automatically, and (2) so
long as any other Event of Default shall be continuing, at the request of (or
with the consent of) Requisite Lenders, upon notice to Company by Administrative
Agent, (A) the Revolving Commitments, if any, of each Lender having such
Revolving Commitments and the obligation of Issuing Bank to issue any Letter of
Credit shall immediately terminate; (B) each of the following shall immediately
become due and payable, in each case without presentment, demand, protest or
other requirements of any kind, all of which are hereby expressly waived by each
Credit Party: (I) the unpaid principal amount of and accrued interest on the
Loans, (II) an amount equal to the maximum amount that may at any time be drawn
under all Letters of Credit then outstanding (regardless of whether any
beneficiary under any such Letter of Credit shall have presented, or shall be
entitled at such time to present, the drafts or other documents or certificates
required to draw under such Letters of Credit), and (III) all other Obligations;
PROVIDED, the foregoing shall not affect in any way the obligations of Lenders
under Section 2.3(b)(iv) or Section 2.4(e); (C) Administrative Agent may cause
the Collateral Agent to enforce any and all Liens and security interests created
pursuant to Collateral Documents; and (D) Administrative Agent shall direct
Company to pay (and Company hereby agrees upon receipt of such notice, or upon
the occurrence of any Event of Default specified in Section 8.1(f) and (g) to
pay) to Administrative Agent such additional amounts of cash, to be held as
security for Company's reimbursement Obligations in respect of Letters of Credit
then outstanding, equal to the Letter of Credit Usage at such time.
SECTION 9. AGENTS
9.1. APPOINTMENT OF AGENTS. JPMCB is hereby appointed Syndication Agent
hereunder, and each Lender hereby authorizes Syndication Agent to act as its
agent in accordance with the terms hereof and the other Credit Documents. GSCP
is hereby appointed Administrative Agent hereunder and under the other Credit
Documents and each Lender hereby authorizes Administrative Agent to act as its
agent in accordance with the terms hereof and the other Credit Documents. Fleet
National Bank is hereby appointed Collateral Agent hereunder and under the other
Credit Documents and each Lender hereby authorizes Collateral Agent to act as
its agent in accordance with the terms hereof and the other Credit Documents.
Each Agent hereby agrees to act upon the express conditions contained herein and
the other Credit Documents, as applicable. The provisions of this Section 9 are
solely for the benefit of Agents and Lenders and no Credit Party shall have any
rights as a third party beneficiary of any of the provisions thereof. In
performing its functions and duties hereunder, each Agent shall act solely as an
agent of Lenders and does not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency
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or trust with or for Holdings or any of its Subsidiaries. Syndication Agent,
without consent of or notice to any party hereto, may assign any and all of its
rights or obligations hereunder to any of its Affiliates. As of the Closing
Date, each of JPMCB, in its capacity as Syndication Agent, and General Electric
Capital Corporation and The Royal Bank of Scotland, in their capacities as
Co-Documentation Agents, shall not have any obligations but shall be entitled to
all benefits of this Section 9.
9.2. POWERS AND DUTIES. Each Lender irrevocably authorizes each Agent to take
such action on such Lender's behalf and to exercise such powers, rights and
remedies hereunder and under the other Credit Documents as are specifically
delegated or granted to such Agent by the terms hereof and thereof, together
with such powers, rights and remedies as are reasonably incidental thereto. Each
Agent shall have only those duties and responsibilities that are expressly
specified herein and the other Credit Documents. Each Agent may exercise such
powers, rights and remedies and perform such duties by or through its agents or
employees. No Agent shall have, by reason hereof or any of the other Credit
Documents, a fiduciary relationship in respect of any Lender; and nothing herein
or any of the other Credit Documents, expressed or implied, is intended to or
shall be so construed as to impose upon any Agent any obligations in respect
hereof or any of the other Credit Documents except as expressly set forth herein
or therein.
9.3. GENERAL IMMUNITY.
(a) NO RESPONSIBILITY FOR CERTAIN MATTERS. No Agent shall have any duties or
obligations except those expressly set forth herein, nor shall any Agent be
subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing. Without limiting the generality of the
foregoing, no Agent shall be responsible to any Lender for the execution,
effectiveness, genuineness, validity, enforceability, collectability or
sufficiency hereof or any other Credit Document or for any representations,
warranties, recitals or statements made herein or therein or made in any written
or oral statements or in any financial or other statements, instruments, reports
or certificates or any other documents furnished or made by any Agent to Lenders
or by or on behalf of any Credit Party to any Agent or any Lender in connection
with the Credit Documents and the transactions contemplated thereby or for the
financial condition or business affairs of any Credit Party or any other Person
liable for the payment of any Obligations, nor shall any Agent be required to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained in any of the Credit
Documents or as to the use of the proceeds of the Loans or as to the existence
or possible existence of any Event of Default or Default. Except as expressly
set forth herein, no Agent shall have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to any Credit Party
that is communicated to or obtained by such Agent or any of its Affiliates in
any capacity. Anything contained herein to the contrary notwithstanding,
Administrative Agent
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shall not have any liability arising from confirmations of the amount of
outstanding Loans or the Letter of Credit Usage or the component amounts
thereof.
(b) EXCULPATORY PROVISIONS. No Agent nor any of its officers, partners,
directors, employees or agents shall be liable to Lenders for any action taken
or omitted by any Agent under or in connection with any of the Credit Documents
except to the extent caused by such Agent's gross negligence or willful
misconduct. Each Agent shall be entitled to refrain from any act or the taking
of any action (including the failure to take an action) in connection herewith
or any of the other Credit Documents or from the exercise of any power,
discretion or authority vested in it hereunder or thereunder unless and until
such Agent shall have received instructions in respect thereof from Requisite
Lenders (or such other Lenders as may be required to give such instructions
under Section 10.5) and, upon receipt of such instructions from Requisite
Lenders (or such other Lenders, as the case may be), such Agent shall be
entitled to act or (where so instructed) refrain from acting, or to exercise
such power, discretion or authority, in accordance with such instructions. Any
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed
or sent by the proper Person. Any Agent also may rely upon any statement made to
it orally or by telephone and believed by it to be made by the proper Person,
and shall not incur any liability for relying thereon. Any Agent may consult
with legal counsel (who may be counsel for Company), independent accountants and
other experts selected by it, and shall not be liable for any action taken or
not taken by it in accordance with the advice of any such counsel, accountants
or experts.
9.4. AGENTS ENTITLED TO ACT AS LENDER. The agency hereby created shall in no way
impair or affect any of the rights and powers of, or impose any duties or
obligations upon, any Agent in its individual capacity as a Lender hereunder.
With respect to its participation in the Loans and the Letters of Credit, each
Agent shall have the same rights and powers hereunder as any other Lender and
may exercise the same as if it were not performing the duties and functions
delegated to it hereunder, and the term "Lender" shall, unless the context
clearly otherwise indicates, include each Agent in its individual capacity. Any
Agent and its Affiliates may accept deposits from, lend money to, own securities
of, and generally engage in any kind of banking, trust, financial advisory or
other business with Holdings or any of its Affiliates as if it were not
performing the duties specified herein, and may accept fees and other
consideration from Company for services in connection herewith and otherwise
without having to account for the same to Lenders.
9.5. LENDERS' REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENT.
(a) Each Lender represents and warrants that it has made its own independent
investigation of the financial condition and affairs of Holdings and its
Subsidiaries in connection with Credit Extensions hereunder and that it has made
and shall continue to make its own appraisal of the creditworthiness
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of Holdings and its Subsidiaries. No Agent shall have any duty or
responsibility, either initially or on a continuing basis, to make any such
investigation or any such appraisal on behalf of Lenders or to provide any
Lender with any credit or other information with respect thereto, whether coming
into its possession before the making of the Loans or at any time or times
thereafter, and no Agent shall have any responsibility with respect to the
accuracy of or the completeness of any information provided to Lenders.
(B) Each Lender, by delivering its signature page to this Agreement and funding
its Term Loan, Delayed Draw Loan and/or a Revolving Loan on the Closing Date,
shall be deemed to have acknowledged receipt of, and consented to and approved,
each Credit Document and each other document required to be approved by any
Agent, Requisite Lenders or Lenders, as applicable on the Closing Date.
9.6. RIGHT TO INDEMNITY. Each Lender, in proportion to its Pro Rata Share,
severally agrees to indemnify each Agent, to the extent that such Agent shall
not have been reimbursed by any Credit Party, for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including counsel fees and disbursements) or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by or asserted
against such Agent in exercising its powers, rights and remedies or performing
its duties hereunder or under the other Credit Documents or otherwise in its
capacity as such Agent in any way relating to or arising out hereof or the other
Credit Documents; PROVIDED, no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct. If any indemnity furnished to any Agent for any purpose
shall, in the opinion of such Agent, be insufficient or become impaired, such
Agent may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is furnished; PROVIDED,
in no event shall this sentence require any Lender to indemnify any Agent
against any liability, obligation, loss, damage, penalty, action, judgment,
suit, cost, expense or disbursement in excess of such Lender's Pro Rata Share
thereof; and PROVIDED, FURTHER, this sentence shall not be deemed to require any
Lender to indemnify any Agent against any liability, obligation, loss, damage,
penalty, action, judgment, suit, cost, expense or disbursement described in the
proviso in the immediately preceding sentence.
9.7. SUB-AGENTS. Each Agent may perform any and all its duties and exercise its
rights and powers by or through any one or more sub-agents appointed by such
Agent. Each Agent and any such sub-agent may perform any and all its duties and
exercise its rights and powers through their respective Affiliates. The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Affiliates of each Agent and any such sub-agent, and shall
apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as such Agent.
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9.8. SUCCESSOR ADMINISTRATIVE AGENT, COLLATERAL AGENT AND SWING LINE LENDER.
(a) ADMINISTRATIVE AGENT AND COLLATERAL AGENT. Each of Administrative Agent and
Collateral Agent may resign at any time by giving 30 days' prior written notice
thereof to Lenders and Company, and each of Administrative Agent and Collateral
Agent may be removed at any time with or without cause by an instrument or
concurrent instruments in writing delivered to Company and Administrative Agent
or Collateral Agent, as applicable, and signed by Requisite Lenders. Upon any
such notice of resignation or any such removal, Requisite Lenders shall have the
right, upon five Business Days' notice to Company, to appoint a successor
Administrative Agent or Collateral Agent with Company's consent (not to be
unreasonably withheld) unless an Event of Default has occurred and is continuing
or such successor is a Lender, in each of which cases Company's consent need not
be obtained. Upon the acceptance of any appointment as Administrative Agent or
Collateral Agent hereunder by a successor Administrative Agent or Collateral
Agent, that successor Administrative Agent or Collateral Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring or removed Administrative Agent or Collateral Agent and the
retiring or removed Administrative Agent or Collateral Agent shall promptly (i)
transfer to such successor Administrative Agent all sums, Securities and other
items of Collateral held under the Collateral Documents, together with all
records and other documents necessary or appropriate in connection with the
performance of the duties of the successor Administrative Agent or Collateral
Agent under the Credit Documents, and (ii) execute and deliver to such successor
Administrative Agent or Collateral Agent such amendments to financing
statements, and take such other actions, as may be necessary or appropriate in
connection with the assignment to such successor Administrative Agent or
Collateral Agent of the security interests created under the Collateral
Documents, whereupon such retiring or removed Administrative Agent or Collateral
Agent shall be discharged from its duties and obligations hereunder. After any
retiring or removed Administrative Agent's or Collateral Agent's resignation or
removal hereunder as Administrative Agent or Collateral Agent, the provisions of
this Section 9 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Agent hereunder.
(b) SWING LINE LENDER. Swing Line Lender may be replaced at any time by written
agreement among Company, Administrative Agent, the replaced Swing Line Lender
and the successor Swing Line Lender. Administrative Agent shall notify the
Lenders of any such replacement of Swing Line Lender. At the time any such
replacement shall become effective, (i) Company shall prepay any outstanding
Swing Line Loans made by the retiring or removed Swing Line Lender, (ii) upon
such prepayment, the retiring or removed Swing Line Lender shall surrender any
Swing Line Note held by it to Company for cancellation, and (iii) Company shall
issue, if so requested by successor Swing Line Loan Lender, a new Swing Line
Note to the successor Swing Line Lender, in the principal amount of the Swing
Line Loan Sublimit then in effect and with other appropriate insertions.
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9.9. COLLATERAL DOCUMENTS AND GUARANTY.
(a) AGENTS UNDER COLLATERAL DOCUMENTS AND GUARANTY. Each Lender hereby further
authorizes Administrative Agent or Collateral Agent, as applicable, on behalf of
and for the benefit of Lenders, to be the agent for and representative of
Lenders with respect to the Guaranty, the Collateral and the Collateral
Documents. Subject to Section 10.5, without further written consent or
authorization from Lenders, Administrative Agent or Collateral Agent, as
applicable may execute any documents or instruments necessary to (i) release any
Lien encumbering any item of Collateral that is the subject of a sale or other
disposition of assets permitted hereby or to which Requisite Lenders (or such
other Lenders as may be required to give such consent under Section 10.5) have
otherwise consented or (ii) release any Guarantor from the Guaranty pursuant to
Section 7.12 or with respect to which Requisite Lenders (or such other Lenders
as may be required to give such consent under Section 10.5) have otherwise
consented.
(b) RIGHT TO REALIZE ON COLLATERAL AND ENFORCE GUARANTY. Anything contained in
any of the Credit Documents to the contrary notwithstanding, Company,
Administrative Agent and each Lender hereby agree that (i) no Lender shall have
any right individually to realize upon any of the Collateral or to enforce the
Guaranty, it being understood and agreed that all powers, rights and remedies
hereunder may be exercised solely by Administrative Agent, on behalf of Lenders
in accordance with the terms hereof and all powers, rights and remedies under
the Collateral Documents may be exercised solely by Collateral Agent, and (ii)
in the event of a foreclosure by Collateral Agent on any of the Collateral
pursuant to a public or private sale, Collateral Agent or any Lender may be the
purchaser of any or all of such Collateral at any such sale and Collateral
Agent, as agent for and representative of Secured Parties (but not any Lender or
Lenders in its or their respective individual capacities unless Requisite
Lenders shall otherwise agree in writing) shall be entitled, for the purpose of
bidding and making settlement or payment of the purchase price for all or any
portion of the Collateral sold at any such public sale, to use and apply any of
the Obligations as a credit on account of the purchase price for any collateral
payable by Collateral Agent at such sale.
SECTION 10. MISCELLANEOUS
10.1 NOTICES. Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given to a Credit Party,
Syndication Agent, Collateral Agent, Administrative Agent, Swing Line Lender or
Issuing Bank shall be sent to such Person's address as set forth on Appendix B
or in the other relevant Credit Document, and in the case of any Lender, the
address as indicated on Appendix B or otherwise indicated to Administrative
Agent in writing. Each notice hereunder shall be in writing and may be
personally served, telexed or sent by telefacsimile or United States mail or
courier service and shall be deemed to have been received when delivered in
person or by courier service and signed for against receipt thereof, upon
receipt of telefacsimile or telex, or three Business Days after depositing it in
the United States mail with postage prepaid and properly addressed; PROVIDED, no
notice to any Agent, Swing Line Lender or Issuing Bank shall be effective until
received by such Person.
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10.2. EXPENSES. Whether or not the transactions contemplated hereby shall be
consummated, Company agrees to pay promptly (a) all the actual and reasonable
costs and expenses of preparation of the Credit Documents and any consents,
amendments, waivers or other modifications thereto; (b) all the costs of
furnishing all opinions by counsel for Company and the other Credit Parties; (c)
the reasonable out-of-pocket fees, expenses and disbursements of outside counsel
to Agents in connection with the negotiation, preparation, execution and
administration of the Credit Documents and any consents, amendments, waivers or
other modifications thereto and any other documents or matters requested by
Company; (d) all the out-of-pocket actual costs and reasonable expenses of
creating and perfecting Liens in favor of Collateral Agent, for the benefit of
Lenders pursuant hereto, including filing and recording fees, expenses and
taxes, stamp or documentary taxes, search fees, title insurance premiums and
reasonable fees, expenses and disbursements of counsel to each Agent and of
counsel providing any opinions that any Agent or Requisite Lenders may request
in respect of the Collateral or the Liens created pursuant to the Collateral
Documents; (e) all the out-of-pocket actual costs and reasonable fees, expenses
and disbursements of any auditors, accountants, consultants or appraisers; (f)
all the out-of-pocket actual costs and reasonable expenses (including the
reasonable fees, expenses and disbursements of any appraisers, consultants,
advisors and agents employed or retained by Collateral Agent and its counsel) in
connection with the custody or preservation of any of the Collateral; (g) all
other out-of-pocket actual and reasonable costs and expenses incurred by each
Agent in connection with the syndication of the Loans and Commitments and the
negotiation, preparation and execution of the Credit Documents and any consents,
amendments, waivers or other modifications thereto and the transactions
contemplated thereby; and (h) after the occurrence of a Default or an Event of
Default, (i) all costs and expenses of inspections and visits by any Agent or
Lender pursuant to Section 5.6 and (ii) all out-of-pocket costs and expenses,
including reasonable attorneys' fees and costs of settlement, incurred by any
Agent and Lenders in enforcing any Obligations of or in collecting any payments
due from any Credit Party hereunder or under the other Credit Documents by
reason of such Default or Event of Default (including in connection with the
sale of, collection from, or other realization upon any of the Collateral or the
enforcement of the Guaranty) or in connection with any refinancing or
restructuring of the credit arrangements provided hereunder in the nature of a
"work-out" or pursuant to any insolvency or bankruptcy cases or proceedings.
10.3 INDEMNITY.
(a) In addition to the payment of expenses pursuant to Section 10.2, whether or
not the transactions contemplated hereby shall be consummated, each Credit Party
agrees to defend (subject to Indemnitees' selection of counsel), indemnify, pay
and hold harmless, each Agent and Lender and the officers, partners, directors,
trustees, employees, agents and Affiliates of each Agent and each Lender (each,
an "INDEMNITEE"), from and
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against any and all Indemnified Liabilities; PROVIDED, no Credit Party shall
have any obligation to any Indemnitee hereunder with respect to any Indemnified
Liabilities to the extent such Indemnified Liabilities arise from the gross
negligence or willful misconduct of that Indemnitee, and PROVIDED, FURTHER, no
Credit Party shall have any obligation to Issuing Bank in the event of the
wrongful dishonor by Issuing Bank of a proper demand for payment made under any
Letter of Credit issued by it (it being understood that no dishonor as a result
of a Governmental Act shall constitute a wrongful dishonor). To the extent that
the undertakings to defend, indemnify, pay and hold harmless set forth in this
Section 10.3 may be unenforceable in whole or in part because they are violative
of any law or public policy, the applicable Credit Party shall contribute the
maximum portion that it is permitted to pay and satisfy under applicable law to
the payment and satisfaction of all Indemnified Liabilities incurred by
Indemnitees or any of them. To the extent permitted by applicable law, no Credit
Party shall assert, and each hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, any Credit Document or any agreement or instrument or
transaction contemplated hereby.
(b) To the extent permitted by applicable law, neither Holdings nor any of its
Subsidiaries or Affiliates shall assert, and hereby waives, any claim against
any Lender or any of their Affiliates, directors, employees, attorneys or
agents, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) (whether or not the
claim therefor is based on contract, tort or duty imposed by any applicable
legal requirement) arising out of, in connection with, arising out of, as a
result of, or in any way related to, this Agreement or any Credit Document or
any agreement or instrument contemplated hereby or thereby, the transactions
contemplated hereby or thereby, any Loan or the use of the proceeds thereof or
any act or omission or event occurring in connection therewith, and Holdings and
Company hereby waives, releases and agrees not to sue upon any such claim or any
such damages, whether or not accrued and whether or not known or suspected to
exist in its favor.
10.4. SET-OFF. In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default each Lender is hereby authorized by each
Credit Party at any time or from time to time subject to the consent of
Administrative Agent (such consent not to be unreasonably withheld or delayed),
without notice to any Credit Party or to any other Person (other than
Administrative Agent), any such notice being hereby expressly waived, to set off
and to appropriate and to apply any and all deposits (general or special,
including Indebtedness evidenced by certificates of deposit, whether matured or
unmatured, but not including trust accounts) and any other Indebtedness at any
time held or owing by such Lender to or for the credit or the account of any
Credit Party against and on account of the obligations and liabilities of any
Credit Party to such Lender hereunder, under the Letters of Credit and
participations therein and under the other Credit Documents, including all
claims of any nature or description arising out of or connected herewith or
therewith, irrespective of whether or not (a) such Lender shall have made any
demand hereunder or (b) the principal
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of or the interest on the Loans or any amounts in respect of the Letters of
Credit or any other amounts due hereunder shall have become due and payable
pursuant to Section 2 and although such obligations and liabilities, or any of
them, may be contingent or unmatured. Each Credit Party hereby further grants to
Administrative Agent and each Lender a security interest in all Deposit Accounts
maintained with Administrative Agent or such Lender as security for the
Obligations.
10.5. AMENDMENTS AND WAIVERS.
(a) REQUISITE LENDERS' CONSENT. Subject to Section 10.5(b) and 10.5(c), no
amendment, modification, termination or waiver of any provision of the Credit
Documents, or consent to any departure by any Credit Party therefrom, shall in
any event be effective without the written concurrence of the Requisite Lenders.
(b) AFFECTED LENDERS' CONSENT. Without the written consent of each Lender (other
than a Defaulting Lender) that would be affected thereby, no amendment,
modification, termination, or consent shall be effective if the effect thereof
would:
(i) extend the scheduled final maturity of any Loan or Note;
(ii) waive, reduce or postpone any scheduled repayment (but not prepayment);
(iii) extend the stated expiration date of any Letter of Credit beyond the
Revolving Commitment Termination Date;
(iv) reduce the rate of interest on any Loan (other than any waiver of any
increase in the interest rate applicable to any Loan pursuant to Section 2.10)
or any fee payable hereunder;
(v) extend the time for payment of any such interest or fees;
(vi) reduce the principal amount of any Loan or any reimbursement obligation in
respect of any Letter of Credit;
(vii) amend, modify, terminate or waive any provision of this Section 10.5(b) or
Section 10.5(c);
(viii) amend the definition of "REQUISITE LENDERS" or "PRO RATA SHARE";
PROVIDED, with the consent of Requisite Lenders, additional extensions of credit
pursuant hereto may be included in the determination of "REQUISITE LENDERS" or
"PRO RATA SHARE" on substantially the same basis as the Term Loan Commitments,
the Term Loans, the Revolving Commitments and the Revolving Loans are included
on the Closing Date;
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(ix) release all or substantially all of the Collateral or all or substantially
all of the Guarantors from the Guaranty except as expressly provided in the
Credit Documents; or
(x) consent to the assignment or transfer by any Credit Party of any of its
rights and obligations under any Credit Document.
(c) OTHER CONSENTS. No amendment, modification, termination or waiver of any
provision of the Credit Documents, or consent to any departure by any Credit
Party therefrom, shall:
(i) increase any Revolving or Delayed Draw Commitment of any Lender over the
amount thereof then in effect without the consent of such Lender; PROVIDED, no
amendment, modification or waiver of any condition precedent, covenant, Default
or Event of Default shall constitute an increase in any Revolving or Delayed
Draw Commitment of any Lender;
(ii) amend, modify, terminate or waive any provision hereof relating to the
Swing Line Sublimit or the Swing Line Loans without the consent of Swing Line
Lender;
(iii) amend the definition of "REQUISITE CLASS LENDERS" without the consent of
Requisite Class Lenders of each Class; PROVIDED, with the consent of the
Requisite Lenders, additional extensions of credit pursuant hereto may be
included in the determination of such "REQUISITE CLASS LENDERS" on substantially
the same basis as the Term Loan Commitments, the Term Loans, the Revolving
Commitments and the Revolving Loans are included on the Closing Date;
(iv) alter the required application of any repayments or prepayments as between
Classes pursuant to Section 2.15 without the consent of Requisite Class Lenders
of each Class which is being allocated a lesser repayment or prepayment as a
result thereof; PROVIDED, Requisite Lenders may waive, in whole or in part, any
prepayment so long as the application, as between Classes, of any portion of
such prepayment which is still required to be made is not altered;
(v) amend, modify, terminate or waive any obligation of Lenders relating to the
issuance of or purchase of participations in Letters of Credit without the
written consent of Administrative Agent and of Issuing Bank; or
(vi) amend, modify, terminate or waive any provision of Section 9 as the same
applies to any Agent, or any other provision hereof as the same applies to the
rights or obligations of any Agent, in each case without the consent of such
Agent.
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(d) EXECUTION OF AMENDMENTS, ETC. Administrative Agent may, but shall have no
obligation to, with the concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of such Lender. Any waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which it was given. No notice to or demand on any Credit Party in
any case shall entitle any Credit Party to any other or further notice or demand
in similar or other circumstances. Any amendment, modification, termination,
waiver or consent effected in accordance with this Section 10.5 shall be binding
upon each Lender at the time outstanding, each future Lender and, if signed by a
Credit Party, on such Credit Party.
10.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS.
(a) GENERALLY. This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and assigns of Lenders. No Credit Party's rights or
obligations hereunder nor any interest therein may be assigned or delegated by
any Credit Party without the prior written consent of all Lenders. Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, Affiliates of
each of the Agents and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) REGISTER. Company, Administrative Agent and Lenders shall deem and treat the
Persons listed as Lenders in the Register as the holders and owners of the
corresponding Commitments and Loans listed therein for all purposes hereof, and
no assignment or transfer of any such Commitment or Loan shall be effective, in
each case, unless and until an Assignment Agreement effecting the assignment or
transfer thereof shall have been delivered to and accepted by Administrative
Agent and recorded in the Register as provided in Section 10.6(d). Prior to such
recordation, all amounts owed with respect to the applicable Commitment or Loan
shall be owed to the Lender listed in the Register as the owner thereof, and any
request, authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is listed in the Register as a
Lender shall be conclusive and binding on any subsequent holder, assignee or
transferee of the corresponding Commitments or Loans.
(c) RIGHT TO ASSIGN. Each Lender shall have the right at any time to sell,
assign or transfer all or a portion of its rights and obligations under this
Agreement, including, without limitation, all or a portion of its Commitment or
Loans owing to it or other Obligation to any Eligible Assignee upon the giving
of notice to Company and Administrative Agent, PROVIDED
(i) each such assignment shall be of a uniform, and not varying, percentage of
all rights and obligations under and in respect of any Loan and any related
Commitments and shall not, without Company's consent, result in payment to
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such assignee under Sections 2.19(c), 2.20 and 2.21 that would not have been
made to the assigning Lender; and
(ii) any assignment to a Person that does not meet the requirements of clause
(i) of the definition of the term "Eligible Assignee" shall require the prior
written consent of Administrative Agent and, so long as no Event of Default has
occurred and is continuing, Company, in each case not to be unreasonably
withheld or delayed.
(d) MECHANICS. The assigning Lender and the assignee thereof shall execute and
deliver to Administrative Agent an Assignment Agreement, together with such
forms, certificates or other evidence, if any, with respect to United States
federal income tax withholding matters as the assignee under such Assignment
Agreement may be required to deliver to Administrative Agent pursuant to Section
2.20(c). Any assignment to a Person that does not meet the requirements of
clause (i) of the definition of the term "Eligible Assignee," shall be in an
aggregate amount of not less than $1,000,000 (or such lesser amount as may be
agreed by Company and Administrative Agent or as shall constitute the aggregate
amount of a Class of Loans or Commitments of the assigning Lender).
(e) NOTICE OF ASSIGNMENT. Upon its receipt of a duly executed and completed
Assignment Agreement, (and any forms, certificates or other evidence required by
this Agreement in connection therewith), Administrative Agent shall record the
information contained in such Assignment Agreement in the Register, shall give
prompt notice thereof to Company and shall maintain a copy of such Assignment
Agreement.
(f) REPRESENTATIONS AND WARRANTIES OF ASSIGNEE. Each Lender, upon execution and
delivery hereof or upon executing and delivering an Assignment Agreement, as the
case may be, represents and warrants as of the Closing Date or as of the
applicable Effective Date (as defined in the applicable Assignment Agreement)
that (i) it is an Eligible Assignee; (ii) it has experience and expertise in the
making of or investing in commitments or loans such as the applicable
Commitments or Loans, as the case may be; and (iii) it will make or invest in,
as the case may be, its Commitments or Loans for its own account in the ordinary
course of its business and without a view to distribution of such Commitments or
Loans within the meaning of the Securities Act or the Exchange Act or other
federal securities laws (it being understood that, subject to the provisions of
this Section 10.6, the disposition of such Commitments or Loans or any interests
therein shall at all times remain within its exclusive control).
(g) EFFECT OF ASSIGNMENT. Subject to the terms and conditions of this Section
10.6, as of the "Effective Date" specified in the applicable Assignment
Agreement: (i) the assignee thereunder shall have the rights and obligations of
a "Lender" hereunder to the extent such rights and obligations hereunder have
been assigned to it pursuant to such Assignment Agreement and shall thereafter
be a party hereto and a "Lender"
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for all purposes hereof; (ii) the assigning Lender thereunder shall, to the
extent that rights and obligations hereunder have been assigned thereby pursuant
to such Assignment Agreement, relinquish its rights (other than any rights which
survive the termination hereof under Section 10.8) and be released from its
obligations hereunder (and, in the case of an Assignment Agreement covering all
or the remaining portion of an assigning Lender's rights and obligations
hereunder, such Lender shall cease to be a party hereto); PROVIDED, anything
contained in any of the Credit Documents to the contrary notwithstanding, (A)
Issuing Bank shall continue to have all rights and obligations thereof with
respect to such Letters of Credit until the cancellation or expiration of such
Letters of Credit and the reimbursement of any amounts drawn thereunder and (B)
such assigning Lender shall continue to be entitled to the benefit of all
indemnities hereunder as specified herein with respect to matters arising out of
the prior involvement of such assigning Lender as a Lender hereunder; (iii) the
Commitments shall be modified to reflect the Commitment of such assignee and any
Revolving Commitment of such assigning Lender, if any; and (iv) if any such
assignment occurs after the issuance of any Note hereunder, the assigning Lender
shall, upon the effectiveness of such assignment or as promptly thereafter as
practicable, surrender its applicable Notes to Administrative Agent for
cancellation, and thereupon Company shall issue and deliver new Notes, if so
requested by the assignee and/or assigning Lender, to such assignee and/or to
such assigning Lender, with appropriate insertions, to reflect the new Revolving
Commitments and/or outstanding Loans of the assignee and/or the assigning
Lender.
(h) PARTICIPATIONS. Each Lender shall have the right at any time to sell,
without notice to, or consent of the Company and Administrative Agent one or
more participations to any Person (other than Holdings, any of its Subsidiaries
or any of its Affiliates) in all or any part of its Commitments, Loans or in any
other Obligation. The holder of any such participation, other than an Affiliate
of the Lender granting such participation, shall not be entitled to require such
Lender to take or omit to take any action hereunder except with respect to any
amendment, modification or waiver that would (i) extend the final scheduled
maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is
not extended beyond the Revolving Commitment Termination Date) in which such
participant is participating, or reduce the rate or extend the time of payment
of interest or fees thereon (except in connection with a waiver of applicability
of any post-default increase in interest rates) or reduce the principal amount
thereof, or increase the amount of the participant's participation over the
amount thereof then in effect (it being understood that a waiver of any Default
or Event of Default or of a mandatory reduction in the Commitment shall not
constitute a change in the terms of such participation, and that an increase in
any Commitment or Loan shall be permitted without the consent of any participant
if the participant's participation is not increased as a result thereof), (ii)
consent to the assignment or transfer by any Credit Party of any of its rights
and obligations under this Agreement or (iii) release all or substantially all
of the Collateral under the Collateral Documents (except as expressly provided
in the Credit Documents) supporting the Loans hereunder in which such
participant is participating. The Company agrees that each participant shall be
entitled to the benefits of Sections 2.19(c), 2.20 and 2.21 to the same extent
as if it were a Lender and had acquired its
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interest by assignment pursuant to paragraph (c) of this Section; PROVIDED, (i)
a participant shall not be entitled to receive any greater payment under Section
2.20 or 2.21 than the applicable Lender would have been entitled to receive with
respect to the participation sold to such participant, unless the sale of the
participation to such participant is made with Company's prior written consent
and (ii) a participant that would be a Non-US Lender if it were a Lender or
would be a US Lender that is not willing or able to execute a valid Form W-9
shall not be entitled to the benefits of Section 2.21 unless Company is notified
of the participation sold to such participant and such participant agrees, for
the benefit of Company, to comply with Section 2.21 as though it were a Lender.
To the extent permitted by law, each participant also shall be entitled to the
benefits of Section 10.4 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.17 as though it were a Lender.
(i) CERTAIN OTHER ASSIGNMENTS. In addition to any other assignment permitted
pursuant to this Section 10.6, (i) any Lender may assign and/or pledge all or
any portion of its Loans, the other Obligations owed by or to such Lender, and
its Notes, if any, to secure obligations of such Lender including, without
limitation, any Federal Reserve Bank as collateral security pursuant to
Regulation A of the Board of Governors of the Federal Reserve System and any
operating circular issued by such Federal Reserve Bank; PROVIDED, no Lender, as
between Company and such Lender, shall be relieved of any of its obligations
hereunder as a result of any such assignment and pledge, and PROVIDED, FURTHER,
in no event shall the applicable Federal Reserve Bank or trustee be considered
to be a "Lender" or be entitled to require the assigning Lender to take or omit
to take any action hereunder.
10.7. INDEPENDENCE OF COVENANTS. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be permitted by an exception
to, or would otherwise be within the limitations of, another covenant shall not
avoid the occurrence of a Default or an Event of Default if such action is taken
or condition exists.
10.8. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties and agreements made herein shall survive the
execution and delivery hereof and the making of any Credit Extension.
Notwithstanding anything herein or implied by law to the contrary, the
agreements of each Credit Party set forth in Sections 2.19(c), 2.20, 2.21, 10.2,
10.3 and 10.4 and the agreements of Lenders set forth in Sections 2.17 and 9.6
shall survive the payment of the Loans, the cancellation or expiration of the
Letters of Credit and the reimbursement of any amounts drawn thereunder, and the
termination hereof.
10.9. NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the part of any
Agent or any Lender in the exercise of any power, right or privilege hereunder
or under any other Credit Document shall impair such power, right or privilege
or be construed to be a waiver of any default or acquiescence therein, nor shall
any single or partial exercise of any such power, right or privilege preclude
other or further exercise thereof or of any other
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power, right or privilege. The rights, powers and remedies given to each Agent
and each Lender hereby are cumulative and shall be in addition to and
independent of all rights, powers and remedies existing by virtue of any statute
or rule of law or in any of the other Credit Documents or any of the Financial
Hedge Agreements. Any forbearance or failure to exercise, and any delay in
exercising, any right, power or remedy hereunder shall not impair any such
right, power or remedy or be construed to be a waiver thereof, nor shall it
preclude the further exercise of any such right, power or remedy.
10.10. MARSHALLING; PAYMENTS SET ASIDE. Neither any Agent nor any Lender shall
be under any obligation to marshal any assets in favor of any Credit Party or
any other Person or against or in payment of any or all of the Obligations. To
the extent that any Credit Party makes a payment or payments to Administrative
Agent or Lenders (or to Administrative Agent, on behalf of Lenders), or
Administrative Agent or Lenders enforce any security interests or exercise their
rights of setoff, and such payment or payments or the proceeds of such
enforcement or setoff or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside and/or required to be repaid to a
trustee, receiver or any other party under any bankruptcy law, any other state
or federal law, common law or any equitable cause, then, to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied,
and all Liens, rights and remedies therefor or related thereto, shall be revived
and continued in full force and effect as if such payment or payments had not
been made or such enforcement or setoff had not occurred.
10.11. SEVERABILITY. In case any provision in or obligation hereunder or any
Note shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
10.12. OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS. The
obligations of Lenders hereunder are several and no Lender shall be responsible
for the obligations or Commitment of any other Lender hereunder. Nothing
contained herein or in any other Credit Document, and no action taken by Lenders
pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights arising out hereof and it shall not be necessary for any other Lender to
be joined as an additional party in any proceeding for such purpose.
10.13 HEADINGS. Section headings herein are included herein for convenience of
reference only and shall not constitute a part hereof for any other purpose or
be given any substantive effect.
10.14 APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
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IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT
OF LAWS PRINCIPLES THEREOF.
10.15. CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY
PARTY HERETO ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENT, OR
ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING
AND DELIVERING THIS AGREEMENT, EACH PARTY HERETO, FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (B) WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS ADDRESS PROVIDED IN
ACCORDANCE WITH SECTION 10.1; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C)
ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT
PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES
EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES AGENTS AND
LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
OR TO BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER
JURISDICTION.
10.16. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE
ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/COMPANY RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS WAIVER
IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN
ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND
STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED
ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO
RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER
WARRANTS
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AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT
IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER
SPECIFICALLY REFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH OF THE PARTIES
HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO
ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN THE
EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL
BY THE COURT.
10.17. CONFIDENTIALITY. Each Lender shall hold all non-public information
regarding Holdings and Company and their business identified as such by Company
and obtained by such Lender pursuant to the requirements hereof in accordance
with such Lender's customary procedures for handling confidential information of
such nature, it being understood and agreed by Holdings and Company that, in any
event, a Lender may make (i) disclosures of such information to Affiliates of
such Lender and to their agents and advisors (and to other persons authorized by
a Lender or Agent to organize, present or disseminate such information in
connection with disclosures otherwise made in accordance with this Section
10.17), (ii) disclosures of such information reasonably required by any bona
fide or potential assignee, transferee or participant in connection with the
contemplated assignment, transfer or participation by such Lender of any Loans
or any participations therein or by any direct or indirect contractual
counterparties (or the professional advisors thereto) in Financial Hedge
Agreements (PROVIDED, such assignees, transferees, participants, counterparties
and advisors are advised of and agree to be bound by the provisions of this
Section 10.17), (iii) disclosure to any rating agency when required by it,
PROVIDED, prior to any disclosure, such rating agency shall undertake in writing
to preserve the confidentiality of any confidential information relating to the
Credit Parties received by it from any of the Agents or any Lender, and (iv)
required or requested by any governmental agency or representative thereof or by
the NAIC or pursuant to legal or judicial process; PROVIDED, unless specifically
prohibited by applicable law or court order, each Lender shall make reasonable
efforts to notify Company of any request by any governmental agency or
representative thereof (other than any such request in connection with any
examination of the financial condition or other routine examination of such
Lender by such governmental agency) for disclosure of any such non-public
information prior to disclosure of such information.
10.18. USURY SAVINGS CLAUSE. Notwithstanding any other provision herein, the
aggregate interest rate charged with respect to any of the Obligations,
including all charges or fees in connection therewith deemed in the nature of
interest under applicable law shall not exceed the Highest Lawful Rate. If the
rate of interest (determined without regard to the preceding
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sentence) under this Agreement at any time exceeds the Highest Lawful Rate, the
outstanding amount of the Loans made hereunder shall bear interest at the
Highest Lawful Rate until the total amount of interest due hereunder equals the
amount of interest which would have been due hereunder if the stated rates of
interest set forth in this Agreement had at all times been in effect. In
addition, if when the Loans made hereunder are repaid in full the total interest
due hereunder (taking into account the increase provided for above) is less than
the total amount of interest which would have been due hereunder if the stated
rates of interest set forth in this Agreement had at all times been in effect,
then to the extent permitted by law, Company shall pay to Administrative Agent
an amount equal to the difference between the amount of interest paid and the
amount of interest which would have been paid if the Highest Lawful Rate had at
all times been in effect. Notwithstanding the foregoing, it is the intention of
Lenders and Company to conform strictly to any applicable usury laws.
Accordingly, if any Lender contracts for, charges, or receives any consideration
which constitutes interest in excess of the Highest Lawful Rate, then any such
excess shall be cancelled automatically and, if previously paid, shall at such
Lender's option be applied to the outstanding amount of the Loans made hereunder
or be refunded to Company.
10.19. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.
10.20 EFFECTIVENESS. This Agreement shall become effective upon the execution of
a counterpart hereof by each of the parties hereto and receipt by Company and
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
Remainder of page intentionally left blank
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their respective officers thereunto duly authorized as
of the date first written above.
BPC HOLDING CORPORATION
By:_____________________________
Name:
Title:
BERRY PLASTICS CORPORATION
By:_____________________________
Name:
Title:
BERRY IOWA CORPORATION
By:_____________________________
Name:
Title:
PACKERWARE CORPORATION
By:_____________________________
Name:
Title:
KNIGHT PLASTICS, INC.
By:_____________________________
Name:
Title:
BERRY STERLING CORPORATION
By:_____________________________
Name:
Title:
BERRY PLASTICS DESIGN CORPORATION
By:_____________________________
Name:
Title:
POLY-SEAL CORPORATION
By:_____________________________
Name:
Title:
BERRY PLASTICS ACQUISITIONS CORPORATION III
By:_____________________________
Name:
Title:
VENTURE PACKAGING, INC.
By:_____________________________
Name:
Title:
VENTURE PACKAGING MIDWEST, INC.
By:_____________________________
Name:
Title:
BERRY PLASTICS TECHNICAL SERVICES, INC.
By:_____________________________
Name:
Title:
CPI HOLDING CORPORATION
By:_____________________________
Name:
Title:
AEROCON, INC.
By:_____________________________
Name:
Title:
PESCOR, INC.
By:_____________________________
Name:
Title:
BERRY TRI-PLAS CORPORATION
By:_____________________________
Name:
Title:
CARDINAL PACKAGING, INC.
By:_____________________________
Name:
Title:
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as Administrative Agent and a Lender
By:_____________________________
Authorized Signatory
JPMORGAN CHASE BANK,
as Syndication Agent and a Lender
By:_____________________________
Authorized Signatory
FLEET NATIONAL BANK,
as Collateral Agent,
Issuing Bank and Swing Line
Lender and a Lender
By:_____________________________
Authorized Signatory
THE ROYAL BANK OF SCOTLAND,
as a Co-Documentation Agent
and a Lender
By:_____________________________
Authorized Signatory
GE CAPITAL CORPORATION,
as a Co-Documentation Agent
and a Lender
By:_____________________________
Authorized Signatory
WEBSTER BANK,
as a Lender
By:_____________________________
Authorized Signatory
APPENDIX A-1
TO CREDIT AND GUARANTY AGREEMENT
Term Loan Commitments
Goldman Sachs Credit Partners L.P. $312,000,000
General Electric Capital Corporation $ 15,000,000
Webster Bank $ 3,000,000
Appendix A-1
APPENDIX A-2
TO CREDIT AND GUARANTY AGREEMENT
Delayed Draw Commitments
Goldman Sachs Credit Partners L.P. $22,000,000
JPMorgan Chase Bank $ 8,000,000
General Electric Capital Corporation $10,000,000
The Royal Bank of Scotland $ 8,000,000
Webster Bank $ 2,000,000
Appendix A-2
APPENDIX A-3
TO CREDIT AND GUARANTY AGREEMENT
Revolving Commitments
Goldman Sachs Credit Partners L.P. $37,000,000
JPMorgan Chase Bank $14,000,000
Fleet National Bank $12,000,000
General Electric Capital Corporation $20,000,000
The Royal Bank of Scotland $12,000,000
Webster Bank $ 5,000,000
Appendix A-3
APPENDIX B
TO CREDIT AND GUARANTY AGREEMENT
Notice Addresses
BERRY PLASTICS CORPORATION
101 Oakley St.
Evansville, IN 47710
Attention: James A. Kratochvil
Telecopier: (812) 424-0128
BPC HOLDING CORPORATION
101 Oakley St.
Evansville, IN 47710
Attention: James A. Kratochvil
Telecopier: (812) 424-0128
Appendix B-1
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as a Lead Arranger, Administrative Agent and a Lender
Goldman Sachs Credit Partners L.P.
85 Broad Street
New York, New York 10004
Attention: Stephen King
Telecopier: (212) 357-0932
with a copy to:
Goldman Sachs Credit Partners L.P.
85 Broad Street
New York, New York 10004
Attention: John Makrinos
Telecopier: (212) 357-4597
Appendix B-2
JPMORGAN CHASE BANK, as Syndication Agent and a Lender
JP Morgan Chase Bank
270 Park Avenue, 38th Fl.
New York, NY 10017
Attention: Stacey Haimes
Telecopier: (212) 270-7939
FLEET NATIONAL BANK
as Collateral Agent, Issuing Bank, and Swing Line Lender
Fleet Bank
100 Federal St. MA DE 100-11A
Boston, MA 02110
Attention: Shai Patel
Telecopier: (617) 434-4929
Appendix B-3