EXHIBIT 10.21
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$381,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF FEBRUARY 12, 2004,
AS FIRST AMENDED AND RESTATED AS OF MARCH 3, 2004,
AS FURTHER AMENDED AND RESTATED AS OF AUGUST 27, 2004,
AMONG
PLY GEM INDUSTRIES, INC.,
AS U.S. BORROWER,
CWD WINDOWS AND DOORS, INC.
AS CANADIAN BORROWER,
PLY GEM HOLDINGS, INC.
AND
THE OTHER GUARANTORS PARTY HERETO,
AS GUARANTORS,
THE LENDERS PARTY HERETO,
UBS SECURITIES LLC
AND
DEUTSCHE BANK SECURITIES INC.,
AS JOINT LEAD ARRANGERS AND BOOKRUNNERS,
J.P. MORGAN SECURITIES INC.,
AS CO-ARRANGER,
UBS AG, STAMFORD BRANCH,
AS ISSUING BANK, ADMINISTRATIVE AGENT AND COLLATERAL AGENT,
UBS LOAN FINANCE LLC,
AS SWINGLINE LENDER,
DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH,
AS SYNDICATION AGENT,
AND
JPMORGAN CHASE BANK,
AS DOCUMENTATION AGENT
Cahill Gordon & Reindel LLP
80 Pine Street
New York, NY 10005
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TABLE OF CONTENTS
Section Page
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ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms.................................................................... 2
SECTION 1.02 Classification of Loans and Borrowings........................................... 40
SECTION 1.03 Terms Generally.................................................................. 40
SECTION 1.04 Accounting Terms; GAAP........................................................... 41
SECTION 1.05 Resolution of Drafting Ambiguities............................................... 41
ARTICLE II
THE CREDITS
SECTION 2.01 Commitments...................................................................... 41
SECTION 2.02 Loans............................................................................ 42
SECTION 2.03 Borrowing Procedure.............................................................. 43
SECTION 2.04 Evidence of Debt; Repayment of Loans............................................. 44
SECTION 2.05 Fees............................................................................. 44
SECTION 2.06 Interest on Loans................................................................ 45
SECTION 2.07 Termination and Reduction of Commitments......................................... 46
SECTION 2.08 Interest Elections............................................................... 47
SECTION 2.09 Amortization of Term Borrowings.................................................. 48
SECTION 2.10 Optional and Mandatory Prepayments of Loans and Mandatory Offers to Redeem....... 49
SECTION 2.11 Alternate Rate of Interest....................................................... 53
SECTION 2.12 Increased Costs.................................................................. 53
SECTION 2.13 Breakage Payments................................................................ 54
SECTION 2.14 Payments Generally; Pro Rata Treatment; Sharing of Setoffs....................... 55
SECTION 2.15 Taxes............................................................................ 56
SECTION 2.16 Mitigation Obligations; Replacement of Lenders................................... 58
SECTION 2.17 Swingline Loans.................................................................. 59
SECTION 2.18 Letters of Credit................................................................ 60
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Organization; Powers............................................................. 66
SECTION 3.02 Authorization; Enforceability.................................................... 66
SECTION 3.03 No Conflicts..................................................................... 66
SECTION 3.04 Financial Statements; Projections................................................ 66
SECTION 3.05 Properties....................................................................... 68
SECTION 3.06 Intellectual Property............................................................ 69
SECTION 3.07 Equity Interests and Subsidiaries................................................ 69
SECTION 3.08 Litigation; Compliance with Laws................................................. 70
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Section Page
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SECTION 3.09 Agreements....................................................................... 70
SECTION 3.10 Federal Reserve Regulations...................................................... 70
SECTION 3.11 Investment Company Act; Public Utility Holding Company Act....................... 71
SECTION 3.12 Use of Proceeds.................................................................. 71
SECTION 3.13 Taxes............................................................................ 71
SECTION 3.14 No Material Misstatements........................................................ 71
SECTION 3.15 Labor Matters.................................................................... 71
SECTION 3.16 Solvency......................................................................... 72
SECTION 3.17 Employee Benefit Plans........................................................... 72
SECTION 3.18 Environmental Matters............................................................ 73
SECTION 3.19 Insurance........................................................................ 74
SECTION 3.20 Security Documents............................................................... 74
SECTION 3.21 Acquisition Documents; Representations and Warranties in Acquisition
Agreement...................................................................... 75
SECTION 3.22 Anti-Terrorism Law............................................................... 76
SECTION 3.23 Subordination of Senior Subordinated Notes....................................... 76
SECTION 3.24 MW Acquisition Documents; Representations and Warranties in MW Acquisition
Agreement...................................................................... 77
ARTICLE IV
CONDITIONS TO CREDIT EXTENSIONS
SECTION 4.01 Conditions to Initial Credit Extension........................................... 77
SECTION 4.02 Conditions to All Credit Extensions.............................................. 82
SECTION 4.03 Conditions to Effectiveness of the Second Amendment and Restatement.............. 83
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01 Financial Statements, Reports, etc............................................... 86
SECTION 5.02 Litigation and Other Notices..................................................... 88
SECTION 5.03 Existence; Businesses and Properties............................................. 88
SECTION 5.04 Insurance........................................................................ 89
SECTION 5.05 Obligations and Taxes............................................................ 90
SECTION 5.06 Employee Benefits................................................................ 90
SECTION 5.07 Maintaining Records; Access to Properties and Inspections; Annual Meetings....... 91
SECTION 5.08 Use of Proceeds.................................................................. 91
SECTION 5.09 Compliance with Environmental Laws; Environmental Reports........................ 91
SECTION 5.10 Additional Collateral; Additional Guarantors..................................... 92
SECTION 5.11 Security Interests; Further Assurances........................................... 94
SECTION 5.12 Information Regarding Collateral................................................. 95
SECTION 5.13 Post-Closing Matters............................................................. 95
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01 Indebtedness..................................................................... 96
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Section Page
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SECTION 6.02 Liens............................................................................ 99
SECTION 6.03 Sale and Leaseback Transactions.................................................. 101
SECTION 6.04 Investment, Loan and Advances.................................................... 101
SECTION 6.05 Mergers and Consolidations....................................................... 102
SECTION 6.06 Asset Sales...................................................................... 103
SECTION 6.07 Acquisitions..................................................................... 104
SECTION 6.08 Dividends........................................................................ 105
SECTION 6.09 Transactions with Affiliates..................................................... 105
SECTION 6.10 Financial Covenants.............................................................. 107
SECTION 6.11 Prepayments of Other Indebtedness; Modifications of Organizational Documents
and Other Documents, etc....................................................... 108
SECTION 6.12 Limitation on Certain Restrictions on Subsidiaries............................... 109
SECTION 6.13 Limitation on Issuance of Capital Stock.......................................... 110
SECTION 6.14 Limitation on Creation of Subsidiaries........................................... 110
SECTION 6.15 Business......................................................................... 110
SECTION 6.16 Limitation on Accounting Changes................................................. 110
SECTION 6.17 Fiscal Year...................................................................... 110
SECTION 6.18 Lease Obligations................................................................ 110
SECTION 6.19 No Further Negative Pledge....................................................... 111
SECTION 6.20 Anti-Terrorism Law; Anti-Money Laundering........................................ 111
SECTION 6.21 Embargoed Person................................................................. 111
ARTICLE VII
GUARANTEE
SECTION 7.01 The Guarantee.................................................................... 112
SECTION 7.02 Obligations Unconditional........................................................ 113
SECTION 7.03 Reinstatement.................................................................... 114
SECTION 7.04 Subrogation; Subordination....................................................... 114
SECTION 7.05 Remedies......................................................................... 114
SECTION 7.06 Instrument for the Payment of Money.............................................. 114
SECTION 7.07 Continuing Guarantee............................................................. 114
SECTION 7.08 General Limitation on Guarantee Obligations...................................... 114
SECTION 7.09 Release of Guarantors............................................................ 114
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01 Events of Default................................................................ 115
ARTICLE IX
COLLATERAL ACCOUNT; APPLICATION OF COLLATERAL PROCEEDS
SECTION 9.01 Collateral Account............................................................... 117
SECTION 9.02 Proceeds of Destruction, Taking and Collateral Dispositions...................... 119
SECTION 9.03 Application of Proceeds.......................................................... 119
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Section Page
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ARTICLE X
THE AGENTS
SECTION 10.01 Appointment...................................................................... 120
SECTION 10.02 Agent in Its Individual Capacity................................................. 120
SECTION 10.03 Exculpatory Provisions........................................................... 120
SECTION 10.04 Reliance by Agent................................................................ 120
SECTION 10.05 Delegation of Duties............................................................. 121
SECTION 10.06 Successor Agent.................................................................. 121
SECTION 10.07 Non-Reliance on Agent and Other Lenders.......................................... 121
SECTION 10.08 Name Agents...................................................................... 121
SECTION 10.09 Indemnification.................................................................. 121
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Notices.......................................................................... 122
SECTION 11.02 Waivers; Amendment............................................................... 123
SECTION 11.03 Expenses; Indemnity.............................................................. 127
SECTION 11.04 Successors and Assigns........................................................... 128
SECTION 11.05 Survival of Agreement............................................................ 130
SECTION 11.06 Counterparts; Integration; Effectiveness......................................... 131
SECTION 11.07 Severability..................................................................... 131
SECTION 11.08 Right of Setoff.................................................................. 131
SECTION 11.09 Governing Law; Jurisdiction; Consent to Service of Process....................... 132
SECTION 11.10 Waiver of Jury Trial............................................................. 132
SECTION 11.11 Headings......................................................................... 132
SECTION 11.12 Confidentiality.................................................................. 133
SECTION 11.13 Interest Rate Limitation......................................................... 133
SECTION 11.14 Lender Addendum.................................................................. 133
SECTION 11.15 Obligations Absolute............................................................. 133
SECTION 11.16 Judgment Currency................................................................ 134
ANNEXES
Annex I Applicable Margin
Annex II Amortization Table
SCHEDULES
Schedule 1.01(a) Assumed Debt
Schedule 1.01(b) Consolidated EBITDA Adjustments
Schedule 1.01(c) Material Indebtedness
Schedule 1.01(d) Mortgaged Property
Schedule 1.01(e) Refinancing Indebtedness to Be Repaid
Schedule 1.01(f) U.S. Subsidiary Guarantors
Schedule 3.03 Governmental Approvals; Compliance with Laws
Schedule 3.05(b) Real Property
Schedule 3.07(a) Subsidiaries
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Schedule 3.07(c) Corporate Organizational Chart
Schedule 3.09(c) Material Agreements
Schedule 3.17 Employee Benefit Plans
Schedule 3.18 Environmental Matters
Schedule 3.19 Insurance
Schedule 3.21 Acquisition Documents
Schedule 3.24 MW Acquisition Documents
Schedule 4.01(g) Local Counsel
Schedule 4.01(n)(vi) Landlord Access Agreements
Schedule 4.01(o)(iii) Title Insurance Amounts
Schedule 5.13(a) Post-Closing Matters
Schedule 6.01(b) Existing Indebtedness
Schedule 6.02(c) Existing Liens
Schedule 6.04(b) Existing Investments
Schedule 6.09(n) Existing Affiliate Agreements
EXHIBITS
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Assignment and Assumption
Exhibit C-1 Form of U.S. Borrowing Request
Exhibit C-2 Form of Canadian Borrowing Request
Exhibit D Form of Compliance Certificate
Exhibit E Form of Interest Election Request
Exhibit F Form of Joinder Agreement
Exhibit G-1 Form of U.S. Landlord Access Agreement
Exhibit G-2 Form of Canadian Landlord Access Agreement
Exhibit H Form of LC Request
Exhibit I Form of Lender Addendum
Exhibit J-1 Form of Mortgage
Exhibit J-2 Form of Canadian Mortgage
Exhibit J-3 Form of Leasehold Mortgage
Exhibit K-1 Form of Existing U.S. Term Note
Exhibit K-2 Form of Canadian Term Note
Exhibit K-3 Form of Revolving Note
Exhibit K-4 Form of Swingline Note
Exhibit K-5 Form of Additional U.S. Term Note
Exhibit L-1 Form of Perfection Certificate
Exhibit L-2 Form of Perfection Certificate Supplement
Exhibit L-3 Form of Second Amendment Perfection Certificate Supplement
Exhibit M-1 Form of U.S. Security Agreement
Exhibit M-2 Form of Canadian Security Agreement
Exhibit N-1 Form of Opinion of Company Counsel
Exhibit N-2 Form of Opinion of Local Counsel
Exhibit N-3 Form of Opinion of Canadian Counsel
Exhibit O Form of Solvency Certificate
Exhibit P-1 Form of Amended and Restated U.S. Intercompany Note
Exhibit P-2 Form of Amended and Restated Canadian Intercompany Note
Exhibit Q Form of U.S. Tax Compliance Certificate
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CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this "AGREEMENT")
dated as of February 12, 2004, first amended and restated as of March 3, 2004
and further amended and restated as of August 27, 2004, among PLY GEM
INDUSTRIES, INC., a Delaware corporation ("U.S. BORROWER"), CWD Windows and
Doors, Inc., a corporation organized under the federal laws of Canada ("CANADIAN
BORROWER" and, together with U.S. Borrower, each a "BORROWER" and collectively
the "BORROWERS"), PLY GEM HOLDINGS, INC., a Delaware corporation ("PARENT"), the
Subsidiary Guarantors (such term and each other capitalized term used but not
defined herein having the meaning given to it in Article I), the Lenders, UBS
SECURITIES LLC and DEUTSCHE BANK SECURITIES INC., as joint lead arrangers and
bookrunners (in such capacity, "JOINT LEAD ARRANGERS"), J.P. MORGAN SECURITIES
INC., as co-arranger (in such capacity, "CO-ARRANGER"), JPMORGAN CHASE BANK, as
documentation agent (in such capacity, "DOCUMENTATION AGENT"), DEUTSCHE BANK AG
CAYMAN ISLANDS BRANCH, as syndication agent (in such capacity, "SYNDICATION
AGENT"), UBS LOAN FINANCE LLC, as swingline lender (in such capacity, "SWINGLINE
LENDER"), and UBS AG, STAMFORD BRANCH, as issuing bank (in such capacity,
"ISSUING BANK"), as administrative agent (in such capacity, "ADMINISTRATIVE
AGENT") for the Lenders and as collateral agent (in such capacity, "COLLATERAL
AGENT") for the Secured Parties and the Issuing Bank.
WITNESSETH:
WHEREAS, Holdings entered into a stock purchase agreement, dated as
of December 19, 2003, as amended on January 23, 2004 and February 12, 2004 (as
further amended, supplemented or otherwise modified from time to time in
accordance with the provisions hereof and thereof, the "ACQUISITION AGREEMENT"),
with Nortek Inc., a Delaware corporation, and WDS LLC, a Delaware limited
liability company and a direct wholly-owned subsidiary of Nortek, Inc.
(collectively, the "SELLER"), to acquire (the "ACQUISITION") all of the capital
stock of U.S. Borrower, and on the Original Closing Date, Holdings transferred
its rights and obligations under the Acquisition Agreement to Parent.
WHEREAS, the Refinancing, the Acquisition, the issuance of the
Senior Subordinated Notes and the Equity Financing were consummated on the
Original Closing Date.
WHEREAS, the Borrowers, the Agents and the Lenders entered into this
Agreement on February 12, 2004 and first amended and restated this Agreement on
March 3, 2004 (as so amended and restated as of such date, the "ORIGINAL CREDIT
AGREEMENT").
WHEREAS, the Borrowers requested various Commitments and Credit
Extensions on the Original Closing Date and the First Amendment Effectiveness
Date, which occurred on such dates.
WHEREAS, U.S. Borrower shall acquire (the "MW ACQUISITION") all of
the Equity Interests of MWM Holding, Inc., a Delaware corporation ("MW"),
pursuant to a stock purchase agreement dated as of July 23, 2004 among MW, the
stockholders listed on Schedule 1 attached thereto (the "MW SELLERS") and U.S.
Borrower (as amended, supplemented or otherwise modified from time to time in
accordance with the provisions hereof and thereof, the "MW PURCHASE AGREEMENT").
WHEREAS, in connection with the MW Acquisition, U.S. Borrower shall
repay all existing indebtedness of MW and its subsidiaries (the "MW
REFINANCING").
WHEREAS, in connection with the MW Acquisition, (i) U.S. Borrower
requests that the Additional U.S. Term Loan Lenders extend credit to it in the
form of Additional U.S. Term Loans on the
Second Amendment Effectiveness Date in an aggregate principal amount of $111.0
million, (ii) U.S. Borrower requests that the Revolving Commitment be increased
to $70.0 million as of the Second Amendment Effectiveness Date and that the
Revolving Lenders extend credit to it in the form of Revolving Loans from time
to time on and after the Second Amendment Effectiveness Date and prior to the
Revolving Maturity Date, provided not more than an aggregate of $15.0 million of
Revolving Loans will be drawn or outstanding on the Second Amendment
Effectiveness Date, (iii) U.S. Borrower requests that the Swingline Commitment
be increased to $15.0 million on the Second Amendment Effectiveness Date and
(iv) U.S. Borrower requests that the LC Commitment be increased to $35.0 million
on the Second Amendment Effectiveness Date.
WHEREAS, the MW Refinancing, the MW Acquisition, the issuance of the
New Senior Subordinated Notes and the Supplemental Financing will be consummated
on the Second Amendment Effectiveness Date.
WHEREAS, the Borrowers, the Administrative Agent and the Lenders
desire, subject to Section 11.06, to further amend and restate this Agreement as
set forth herein.
WHEREAS, the proceeds of the Loans are to be used in accordance with
Section 3.12.
NOW, THEREFORE, the Lenders are willing to extend such credit to the
Borrowers and the Issuing Bank is willing to issue letters of credit for the
account of U.S. Borrower on the terms and subject to the conditions set forth
herein. Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINED TERMS. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR," when used in reference to any Loan or Borrowing, is used when
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"ABR BORROWING" shall mean a Borrowing comprised of ABR Loans.
"ABR LOAN" shall mean any ABR Term Loan or ABR Revolving Loan.
"ABR REVOLVING LOAN" shall mean any Revolving Loan bearing interest
at a rate determined by reference to the Alternate Base Rate in accordance with
the provisions of Article II.
"ABR TERM LOAN" shall mean any Term Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ACQUISITION" shall have the meaning assigned to such term in the
first recital hereto.
"ACQUISITION AGREEMENT" shall have the meaning assigned to such term
in the first recital hereto.
"ACQUISITION CONSIDERATION" shall mean the purchase consideration
for any Permitted Acquisition and all other payments by Parent or any of its
Subsidiaries in exchange for, or as part of, or in
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connection with, any Permitted Acquisition (other than fees and expenses related
to such Permitted Acquisition), whether paid in cash or by exchange of Equity
Interests or of properties or otherwise and whether payable at or prior to the
consummation of such Permitted Acquisition or deferred for payment at any future
time, whether or not any such future payment is subject to the occurrence of any
contingency, and includes any and all payments representing the purchase price
and any assumptions of Indebtedness, "earn-outs" and other agreements to make
any payment the amount of which is, or the terms of payment of which are, in any
respect subject to or contingent upon the revenues, income, cash flow or profits
(or the like) of any person or business; provided that any such future payment
that is subject to a contingency shall be considered Acquisition Consideration
only to the extent of the reserve, if any, required under GAAP at the time of
such sale to be established in respect thereof by Parent or any of its
Subsidiaries.
"ACQUISITION DOCUMENTS" shall mean the collective reference to the
Acquisition Agreement and the other documents listed on Schedule 3.21.
"ADDITIONAL TERM LOANS" shall have the meaning assigned to such term
in Section 11.02(d).
"ADDITIONAL U.S. TERM LOAN" shall mean the term loans made by the
Additional U.S. Term Loan Lenders to U.S. Borrower pursuant to Section 2.01(e).
Each Additional U.S. Term Loan shall be either an ABR Term Loan or a Eurodollar
Term Loan.
"ADDITIONAL U.S. TERM LOAN COMMITMENT" shall mean, with respect to
each Additional U.S. Term Loan Lender, the commitment, if any, of such
Additional U.S. Term Loan Lender to make an Additional U.S. Term Loan hereunder
on the Second Amendment Effectiveness Date in the amount set forth on Schedule I
to the Lender Addendum executed and delivered by such Additional U.S. Term Loan
Lender. The aggregate amount of the Lenders' Additional U.S. Term Loan
Commitments as of the Second Amendment Effectiveness Date is $111.0 million.
"ADDITIONAL U.S. TERM LOAN LENDER" shall mean each U.S. Lender that
has an Additional U.S. Term Loan Commitment or is the holder of an Additional
U.S. Term Loan.
"ADJUSTED LIBOR RATE" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, (a) an interest rate per annum (rounded
upward, if necessary, to the next 1/100th of 1%) determined by the
Administrative Agent to be equal to the LIBOR Rate for such Eurodollar Borrowing
in effect for such Interest Period divided by (b) 1 minus the Statutory Reserves
(if any) for such Eurodollar Borrowing for such Interest Period.
"ADMINISTRATIVE AGENT" shall have the meaning assigned to such term
in the preamble hereto and includes each other person appointed as the successor
pursuant to Article X.
"ADMINISTRATIVE AGENT FEES" shall have the meaning assigned to such
term in Section 2.05(b).
"ADMINISTRATIVE QUESTIONNAIRE" shall mean an Administrative
Questionnaire in the form of Exhibit A, or such other form as may be supplied
from time to time by the Administrative Agent.
"ADVISORY SERVICES AGREEMENT" means the advisory services agreement,
dated as of February 12, 2004, among U.S. Borrower and Sponsor.
"AFFILIATE" shall mean, when used with respect to a specified
person, another person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under com-
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mon Control with the person specified; provided, however, that, for purposes of
Section 6.09, the term "Affiliate" shall also include (i) any person that
directly or indirectly owns more than 10% of any class of Equity Interests of
the person specified or (ii) any person that is an executive officer or director
of the person specified.
"AGENTS" shall mean the Arrangers, the Documentation Agent, the
Syndication Agent, the Administrative Agent and the Collateral Agent; and
"AGENT" shall mean any of them.
"AGREEMENT" shall have the meaning assigned to such term in the
preamble hereto.
"ALTERNATE BASE RATE" shall mean, for any day, a rate per annum
(rounded upward, if necessary, to the next 1/100th of 1%) equal to the greater
of (a) the Base Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus 0.50%. If the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Federal Funds Effective Rate for any reason,
including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms of the definition thereof,
the Alternate Base Rate shall be determined without regard to clause (b) of the
preceding sentence until the circumstances giving rise to such inability no
longer exist. Any change in the Alternate Base Rate due to a change in the Base
Rate or the Federal Funds Effective Rate shall be effective on the effective
date of such change in the Base Rate or the Federal Funds Effective Rate,
respectively.
"ANTI-TERRORISM LAWS" shall have the meaning assigned to such term
in Section 3.22.
"APPLICABLE FEE" shall mean, for any day, with respect to any
Commitment, the applicable percentage set forth in Annex I under the caption
"Applicable Fee".
"APPLICABLE MARGIN" shall mean, for any day, with respect to any (i)
Term Loan, (x) 2.50% for Eurodollar Loans and (y) 1.50% for ABR Loans, and (ii)
Revolving Loan, the applicable percentage set forth in Annex I.
"ARRANGERS" shall mean the Joint Lead Arrangers and the Co-Arranger.
"ASSET SALE" shall mean (a) any conveyance, sale, lease, sublease,
assignment, transfer or other disposition (including by way of merger or
consolidation and including any Sale and Leaseback Transaction) of any property
excluding sales of inventory and dispositions of cash equivalents, in each case,
in the ordinary course of business, by Parent or any of its Subsidiaries and (b)
any issuance or sale of any Equity Interests of any Subsidiary of Parent, in
each case, to any person other than (i) either Borrower, (ii) any Subsidiary
Guarantor or (iii) other than for purposes of Section 6.06, any other
Subsidiary.
"ASSIGNMENT AND ASSUMPTION" shall mean an assignment and assumption
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, substantially in the form of Exhibit B, or such other form as shall be
approved by the Administrative Agent.
"ASSUMED DEBT" shall mean the Indebtedness set forth on Schedule
1.01(a) hereto.
"BAILEE LETTER" shall have the meaning assigned thereto in the
Security Agreement.
"BASE RATE" shall mean, for any day, a rate per annum that is equal
to the corporate base rate of interest established by the Administrative Agent
in the United States for dollars from time to time; each change in the Base Rate
shall be effective on the date such change is effective. The corporate base rate
is not necessarily the lowest rate charged by the Administrative Agent to its
customers.
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"BOARD" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"BOARD OF DIRECTORS" shall mean, with respect to any person, (i) in
the case of any corporation, the board of directors of such person, (ii) in the
case of any limited liability company, the board of managers of such person,
(iii) in the case of any partnership, the Board of Directors of the general
partner of such person and (iv) in any other case, the functional equivalent of
the foregoing.
"BORROWER" shall have the meaning assigned to such term in the
preamble hereto.
"BORROWING" shall mean (a) Loans of the same Class and Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, or (b) a Swingline Loan.
"BORROWING REQUEST" shall mean either a U.S. Borrowing Request or a
Canadian Borrowing Request as the context shall require.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or
other day on which banks in New York City are authorized or required by law to
close; provided, however, that when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"CALCULATION PERIOD" shall have the meaning assigned to such term in
Section 2.06(f).
"CANADIAN BORROWER" shall have the meaning assigned to such term in
the preamble hereto.
"CANADIAN BORROWING REQUEST" shall mean a request by Canadian
Borrower in accordance with the terms of Section 2.03 and substantially in the
form of Exhibit C-2, or such other form as shall be approved by the
Administrative Agent.
"CANADIAN COLLATERAL ACCOUNT" shall mean a collateral account or
sub-account established and maintained by the Collateral Agent for the benefit
of the Canadian Secured Parties, in accordance with the provisions of Section
9.01.
"CANADIAN GUARANTEED OBLIGATIONS" shall have the meaning assigned to
such term in Section 7.01.
"CANADIAN GUARANTORS" shall have the meaning assigned to such term
in Section 7.01.
"CANADIAN INTERCOMPANY NOTE" shall mean a promissory note
substantially in the form of Exhibit P-2.
"CANADIAN LOAN PARTIES" shall mean Canadian Borrower and the
Canadian Guarantors; provided that Parent and U.S. Borrower shall only
constitute Canadian Loan Parties in their capacities as Canadian Guarantors.
"CANADIAN MORTGAGED PROPERTY" shall mean the Mortgaged Property
owned or leased by the Canadian Loan Parties.
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"CANADIAN OBLIGATIONS" shall mean (a) obligations of Canadian
Borrower and the other Canadian Loan Parties from time to time arising under or
in respect of the due and punctual payment of (i) the principal of and premium,
if any, and interest (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding) on the Canadian Term Loans,
when and as due, whether at maturity, by acceleration, upon one or more dates
set for prepayment or otherwise and (ii) all other monetary obligations,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), of
Canadian Borrower and the other Canadian Loan Parties under this Agreement and
the other Loan Documents, (b) the due and punctual performance of all covenants,
agreements, obligations and liabilities of Canadian Borrower and the other
Canadian Loan Parties under or pursuant to this Agreement and the other Loan
Documents, (c) the due and punctual payment and performance of all obligations
of Canadian Borrower and the other Canadian Loan Parties under each Hedging
Agreement relating to either the Canadian Term Loans or foreign currency
exchange rates entered into with any counterparty that was a Lender or an
Affiliate of a Lender at the time such Hedging Agreement was entered into
(provided that each shall provide that it terminates or expires upon, or prior
to, the repayment of all Loans hereunder) (each, a "PERMITTED CANADIAN HEDGING
AGREEMENT") and (d) the due and punctual payment and performance of all
obligations in respect of overdrafts and related liabilities owed to any
Canadian Term Loan Lender, any Affiliate of a Canadian Term Loan Lender, the
Administrative Agent or the Collateral Agent arising from treasury, depositary
and cash management services or in connection with any automated clearinghouse
transfer of funds, in each case, with respect to Canadian Term Loans.
"CANADIAN SECURED PARTIES" shall mean, collectively, the
Administrative Agent, the Collateral Agent, each other Agent, the Lenders and
each party to a Permitted Canadian Hedging Agreement if such person executes and
delivers to the Administrative Agent a letter agreement in form and substance
reasonably acceptable to the Administrative Agent pursuant to which such person
(i) appoints the Collateral Agent as its agent under the applicable Loan
Documents and (ii) agrees to be bound by the provisions of Sections 11.03 and
11.09.
"CANADIAN SECURITY AGREEMENT" shall mean a Security Agreement
substantially in the form of Exhibit M-2 among the Canadian Loan Parties and
Collateral Agent for the benefit of the Canadian Secured Parties.
"CANADIAN SECURITY AGREEMENT COLLATERAL" shall mean all property
pledged or granted as collateral pursuant to the Canadian Security Agreement
delivered on the Original Closing Date or thereafter pursuant to Section 5.10.
"CANADIAN SECURITY DOCUMENTS" shall mean the Canadian Security
Agreement, the Mortgages entered into by the Canadian Loan Parties and each
other security document or pledge agreement delivered in accordance with
applicable local or foreign law to grant a valid, perfected security interest in
any property as collateral for the Canadian Obligations, and all financing
statements or instruments of perfection required by this Agreement, the Canadian
Security Agreement or any other such security document or pledge agreement to be
filed with respect to the security interests in property and fixtures created
pursuant to the Canadian Security Agreement and any other document or instrument
utilized to pledge as collateral for the Canadian Obligations any property.
"CANADIAN SUBSIDIARY" shall mean a Subsidiary of Canadian Borrower.
"CANADIAN SUBSIDIARY GUARANTOR" shall mean a Canadian Subsidiary
that is or becomes a party to this Agreement pursuant to Section 5.10.
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"CANADIAN TERM LOAN" shall mean the term loans made by the Canadian
Term Loan Lenders to Canadian Borrower pursuant to Section 2.01(b). Each
Canadian Term Loan shall be either an ABR Term Loan or a Eurodollar Term Loan.
"CANADIAN TERM LOAN COMMITMENT" shall mean, with respect to each
Canadian Term Loan Lender, the commitment, if any, of such Canadian Term Loan
Lender to make a Canadian Term Loan hereunder on the Original Closing Date in
the amount set forth on Schedule I to the Lender Addendum executed and delivered
by such Canadian Term Loan Lender. The aggregate amount of the Lenders' Canadian
Term Loan Commitments was $30.0 million on the Original Closing Date.
"CANADIAN TERM LOAN LENDERS" shall mean (a) the financial
institutions that have become a party hereto pursuant to a Lender Addendum that
provide Canadian Term Loan Commitments or make Canadian Term Loans and (b) any
financial institution that has become a party hereto pursuant to an Assignment
and Assumption that provides Canadian Term Loan Commitments or makes Canadian
Term Loans, other than, in each case, any such financial institution that has
ceased to be a party hereto pursuant to an Assignment and Assumption.
"CAPEX CARRYFOWARD AMOUNT" shall have the meaning assigned to such
term in Section 6.10(c).
"CAPITAL EXPENDITURES" shall mean, for any period, without
duplication, the increase during that period in the gross property, plant or
equipment account in the consolidated balance sheet of U.S. Borrower and its
Subsidiaries, determined in accordance with GAAP, whether such increase is due
to purchase of properties for cash or financed by the incurrence of
Indebtedness, but excluding (i) expenditures made in connection with the
replacement, substitution or restoration of property pursuant to Section 2.10(f)
and (ii) any portion of such increase attributable solely to acquisitions of
property, plant and equipment in Permitted Acquisitions.
"CAPITAL LEASE OBLIGATIONS" of any person shall mean the obligations
of such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CASH EQUIVALENTS" shall mean, as to any person, (a) securities
issued, or directly, unconditionally and fully guaranteed or insured, by the
United States or Canada or any agency or instrumentality thereof (provided that
the full faith and credit of the United States or Canada is pledged in support
thereof) having maturities of not more than one year from the date of
acquisition by such person; (b) time deposits and certificates of deposit of (1)
any Lender or Agent or (2) any commercial bank having, or which is the principal
banking subsidiary of a bank holding company organized under the laws of the
United States or Canada, any state or province thereof or the District of
Columbia having, capital and surplus aggregating in excess of $500.0 million and
a rating of "A" (or such other similar equivalent rating) or higher by at least
one nationally recognized statistical rating organization (as defined in Rule
436 under the Securities Act) with maturities of not more than one year from the
date of acquisition by such person; (c) repurchase obligations with a term of
not more than 30 days for underlying securities of the types described in clause
(a) above entered into with any bank meeting the qualifications specified in
clause (b) above, which repurchase obligations are secured by a valid perfected
security interest in the underlying securities; (d) commercial paper issued by
any person incorporated in the United States or Canada rated at least A-1 or the
equivalent thereof by Standard & Poor's Rating Service or at least P-1 or the
equivalent thereof by Moody's Investors Service Inc., and in each case maturing
not more than one year after the date of acquisition by such person; (e)
investments in money market funds substantially all of whose as-
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sets are comprised of securities of the types described in clauses (a) through
(d) above; and (f) demand deposit accounts maintained in the ordinary course of
business.
"CASH INTEREST EXPENSE" shall mean, for any period, Consolidated
Interest Expense for such period, less the sum of (a) interest on any debt paid
by the increase in the principal amount of such debt including by issuance of
additional debt of such kind and (b) items described in clause (c) or, other
than to the extent paid in cash, clauses (f) and (g) of the definition of
"Consolidated Interest Expense."
"CASUALTY EVENT" shall mean any loss of title or any loss of or
damage to or destruction of, or any condemnation or other taking (including by
any Governmental Authority) of, any property of Parent or any of its
Subsidiaries. "Casualty Event" shall include but not be limited to any taking of
all or any part of any Real Property of any person or any part thereof, in or by
condemnation or other eminent domain proceedings pursuant to any law, or by
reason of the temporary requisition of the use or occupancy of all or any part
of any Real Property of any person or any part thereof by any Governmental
Authority, civil or military, or any settlement in lieu thereof.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et
seq.
A "CHANGE IN CONTROL" shall be deemed to have occurred if:
(a) Parent at any time ceases to own 100% of the Equity Interests of
U.S. Borrower or, prior to an IPO at Parent, Holdings ceases to own 100%
of the Equity Interests of Parent;
(b) at any time a change of control (as defined in the documentation
for any Material Indebtedness) shall occur;
(c) prior to an IPO, (i) the Permitted Holders cease to own
(directly or indirectly), or to have the power to vote or direct the
voting of, Voting Stock of U.S. Borrower representing a majority of the
voting power of the total outstanding Voting Stock of U.S. Borrower or
(ii) the Permitted Holders cease to own (directly or indirectly) Equity
Interests representing a majority of the total economic interests of the
Equity Interests of U.S. Borrower;
(d) following an IPO, (i) the Permitted Holders shall fail to own
(directly or indirectly), or to have the power to vote or direct the
voting of, Voting Stock of U.S. Borrower representing more than 35% of the
voting power of the total outstanding Voting Stock of U.S. Borrower, (ii)
the Permitted Holders cease to own (directly or indirectly) Equity
Interests representing more than 35% of the total economic interests of
the Equity Interests of U.S. Borrower or (iii) any "person" or "group" (as
such terms are used in Sections 13(d) and 14(d) of the Exchange Act),
other than one or more Permitted Holders, is or becomes the beneficial
owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except
that for purposes of this clause such person or group shall be deemed to
have "beneficial ownership" of all securities that such person or group
has the right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of Voting Stock
of U.S. Borrower representing more than the voting power of the Voting
Stock of U.S. Borrower owned by the Permitted Holders; or
(e) following an IPO, during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors of the IPO Entity (together with any new directors whose
election to such Board of Directors or whose nomination for election was
approved by a vote of a majority of the members of the Board of Directors
of the IPO Entity, which members comprising such majority are then still
in office and were either directors at the
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beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of
the Board of Directors of the IPO Entity.
For purposes of this definition, a person shall not be deemed to
have beneficial ownership of Equity Interests subject to a stock purchase
agreement, merger agreement or similar agreement until the consummation of the
transactions contemplated by such agreement.
"CHANGE IN LAW" shall mean (a) the adoption of any law, treaty,
order, policy, rule or regulation or any interpretation or application thereof
by any Governmental Authority after the date of this Agreement, (b) any change
in any law, treaty, order, policy, rule or regulation or in the interpretation
or application thereof by any Governmental Authority after the date of this
Agreement or (c) compliance by any Lender or Issuing Bank (or for purposes of
Section 2.12(b), by any lending office of such Lender or by such Lender's or
Issuing Bank's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"CHARGES" shall have the meaning assigned to such term in Section
11.13.
"CLASS," when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Existing U.S. Term Loans, Additional U.S. Term Loans, Canadian Term Loans or
Swingline Loans and, when used in reference to any Commitment, refers to whether
such Commitment is a Revolving Commitment, Existing U.S. Term Loan Commitment,
Additional U.S. Term Loan Commitment, Canadian Term Loan Commitment or Swingline
Commitment, in each case, under this Agreement as originally in effect or
pursuant to Sections 11.02(d) or (f), of which such Loan, Borrowing or
Commitment shall be a part.
"CO-ARRANGER" shall have the meaning assigned to such term in the
preamble hereto.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"COLLATERAL" shall mean, collectively, all of the U.S. Security
Agreement Collateral, the Canadian Security Agreement Collateral, the Mortgaged
Property and all other property of whatever kind and nature pledged as
collateral under any Security Document.
"COLLATERAL ACCOUNT" shall mean the Canadian Collateral Account or
the U.S. Collateral Account, as applicable.
"COLLATERAL AGENT" shall have the meaning assigned to such term in
the preamble hereto.
"COMMERCIAL LETTER OF CREDIT" shall mean any letter of credit or
similar instrument issued for the purpose of providing credit support in
connection with the purchase of materials, goods or services by U.S. Borrower or
any of its Subsidiaries in the ordinary course of their businesses.
"COMMITMENT" shall mean, with respect to any Lender, such Lender's
Revolving Commitment, Existing U.S. Term Loan Commitment, Additional U.S. Term
Loan Commitment, Canadian Term Loan Commitment or Swingline Commitment, and any
Commitment to make Term Loans of a new Class extended by such Lender as provided
in Section 11.02(d).
"COMMITMENT FEE" shall have the meaning assigned to such term in
Section 2.05(a).
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"COMPANIES" shall mean Parent and its Subsidiaries; and "COMPANY"
shall mean any one of them.
"COMPLIANCE CERTIFICATE" shall mean a certificate of a Financial
Officer substantially in the form of Exhibit D.
"CONFIDENTIAL INFORMATION MEMORANDUM" shall mean that certain
confidential information memorandum dated as of January 2004 relating to U.S.
Borrower and its subsidiaries.
"CONSOLIDATED AMORTIZATION EXPENSE" shall mean, for any period, the
amortization expense of U.S. Borrower and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED CURRENT ASSETS" shall mean, as at any date of
determination, the total assets of U.S. Borrower and its Subsidiaries which may
properly be classified as current assets on a consolidated balance sheet of U.S.
Borrower and its Subsidiaries in accordance with GAAP.
"CONSOLIDATED CURRENT LIABILITIES" shall mean, as at any date of
determination, the total liabilities of U.S. Borrower and its Subsidiaries which
may properly be classified as current liabilities (other than the current
portion of any Loans) on a consolidated balance sheet of U.S. Borrower and its
Subsidiaries in accordance with GAAP.
"CONSOLIDATED DEPRECIATION EXPENSE" shall mean, for any period, the
depreciation expense of U.S. Borrower and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED EBITDA" shall mean, for any period, Consolidated Net
Income for such period, adjusted by (x) adding thereto, in each case only to the
extent (and in the same proportion) deducted in determining such Consolidated
Net Income (and with respect to the portion of Consolidated Net Income
attributable to any Subsidiary of U.S. Borrower (other than any Foreign
Subsidiary or any U.S. Subsidiary Guarantor) only if a corresponding amount
would be permitted at the date of determination to be distributed to U.S.
Borrower by such Subsidiary without prior approval (that has not been obtained),
pursuant to the terms of its Organizational Documents and all agreements (other
than any municipal loan or related agreements entered into in connection with
the incurrence of industrial or economic revenue bonds), instruments, judgments,
decrees, orders, statutes, rules and regulations applicable to such Subsidiary
or its equityholders):
(a) Consolidated Interest Expense for such period,
(b) Consolidated Amortization Expense for such period,
(c) Consolidated Depreciation Expense for such period,
(d) Consolidated Tax Expense for such period,
(e) costs and expenses directly incurred (i) in connection with the
Transactions during such period (not to exceed $30.0 million) to the
extent actually incurred and expensed within one year of the Original
Closing Date and (ii) in connection with the Second Amendment Transactions
during such period (not to exceed $17.5 million) to the extent actually
incurred and expensed within one year of the Second Amendment
Effectiveness Date,
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(f) the aggregate amount of all other non-cash items reducing
Consolidated Net Income (excluding any non-cash charge that results in an
accrual of a reserve for cash charges in any future period) for such
period,
(g) the amount of management fees and transaction fees paid to
Sponsor for such period pursuant to the Advisory Services Agreement in
accordance with Section 6.09(e),
(h) Restructuring Expenses in an aggregate amount not to exceed
$15.0 million in any Test Period and any Restructuring Expenses in
connection with the disposition of Thermal-Gard, Inc.,
(i) other expenses incurred by MW in such period and prior to the
Second Amendment Effectiveness Date for management fees and abandoned
transaction costs in an aggregate amount not to exceed $30.114 million for
the fiscal year ended December 27, 2003 and $250,000 for the six months
ended July 3, 2004,
(j) amounts relating to items substantially similar to those listed
on Schedule 1.01(b) not to exceed $1.929 million in the third quarter of
2004, $1.629 million in the fourth quarter of 2004, $1.433 million in the
first quarter of 2005, $1.107 million in the second quarter of 2005 and
$217,000 in the third quarter of 2005, and
(y) subtracting therefrom the aggregate amount of all non-cash items increasing
Consolidated Net Income (other than the accrual of revenue or recording of
receivables in the ordinary course of business) for such period, and (z) adding
thereto or subtracting therefrom, without duplication of amounts included as
Restructuring Expenses, with respect to any part of a Test Period, the
adjustments to Consolidated EBITDA set forth on Schedule 1.01(b).
Other than for purposes of calculating Excess Cash Flow,
Consolidated EBITDA shall be calculated on a Pro Forma Basis (including any Pro
Forma Cost Savings) to give effect to the Acquisition, the MW Acquisition, any
Permitted Acquisition, each Permitted Sale and Leaseback Transaction and other
Asset Sales for consideration individually or in the aggregate in excess of $3.0
million during any Test Period consummated at any time on or after the first day
of the Test Period thereof as if the Acquisition, the MW Acquisition and each
such Permitted Acquisition had been effected on the first day of such period and
as if each such Permitted Sale and Leaseback Transaction and other Asset Sale
had been consummated on the day prior to the first day of such period.
Notwithstanding the foregoing, Consolidated EBITDA for the last two
fiscal quarters of 2003 and for each fiscal quarter of 2004 shall be increased
by the amounts indicated on Schedule 1.01(b) to account for the items described
thereon to the extent any such amounts were deducted in computing Consolidated
Net Income and do not duplicate amounts already added back in computing
Consolidated EBITDA.
"CONSOLIDATED INDEBTEDNESS" shall mean, as at any date of
determination, without duplication, (x) the aggregate amount of all Indebtedness
of U.S. Borrower and its Subsidiaries less (y) cash and Cash Equivalents on hand
of U.S. Borrower and its Subsidiaries in excess of $2.0 million other than
restricted cash that is not held in a Collateral Account (but including, without
regard to such $2.0 million threshold, cash held in the Ply Gem LC Restricted
Account), determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED INTEREST COVERAGE RATIO" shall mean, for any Test
Period, the ratio of (x) Consolidated EBITDA for such Test Period to (y) Cash
Interest Expense for such Test Period.
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"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period, the
total consolidated interest expense (less interest income) of U.S. Borrower and
its Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP plus, without duplication:
(a) imputed interest on Capital Lease Obligations of U.S. Borrower
and its Subsidiaries for such period;
(b) commissions, discounts and other fees and charges owed by U.S.
Borrower or any of its Subsidiaries with respect to letters of credit
securing financial obligations, bankers' acceptance financing and
receivables financings for such period;
(c) amortization of debt issuance costs, debt discount or premium
and other financing fees and expenses incurred by U.S. Borrower or any of
its Subsidiaries for such period;
(d) cash contributions to any employee stock ownership plan or
similar trust made by U.S. Borrower or any of its Subsidiaries to the
extent such contributions are used by such plan or trust to pay interest
or fees to any person (other than U.S. Borrower or a Wholly Owned
Subsidiary) in connection with Indebtedness incurred by such plan or trust
for such period;
(e) all interest paid or payable with respect to discontinued
operations of U.S. Borrower or any of its Subsidiaries for such period;
(f) the interest portion of any deferred payment obligations of U.S.
Borrower or any of its Subsidiaries for such period; and
(g) all interest on any Indebtedness of U.S. Borrower or any of its
Subsidiaries of the type described in clause (f) or (j) of the definition
of "Indebtedness" for such period;
provided that (A) to the extent directly related to the Transactions or the
Second Amendment Transactions, debt issuance costs, debt discount or premium and
other financing fees and expenses shall be excluded from the calculation of
Consolidated Interest Expense and (B) the amortization during such period of
other capitalized financing costs shall be excluded from the calculation of
Consolidated Interest Expense; provided that in the case of clause (B) the
aggregate amount of amortization relating to such capitalized financing costs
deducted in calculating Consolidated Interest Expense shall not exceed 5% of the
aggregate amount of the financing giving rise thereto.
Consolidated Interest Expense shall be calculated on a Pro Forma
Basis (including any Pro Forma Cost Savings) to give effect to any Indebtedness
incurred, assumed or permanently repaid or extinguished during the relevant Test
Period in connection with the Acquisition, the MW Acquisition, any Permitted
Acquisitions, each Permitted Sale and Leaseback Transaction and other Asset
Sales for consideration individually or in the aggregate in excess of $3.0
million during any Test Period as if such incurrence, assumption, repayment or
extinguishing had been effected on the first day of such period.
"CONSOLIDATED NET INCOME" shall mean, for any period, the
consolidated net income (or loss) of U.S. Borrower and its Subsidiaries
determined on a consolidated basis in accordance with GAAP; provided that there
shall be excluded from such net income (to the extent otherwise included
therein), without duplication:
(a) the net income (or loss) of any person (other than a Subsidiary
of U.S. Borrower) in which any person other than U.S. Borrower and its
Subsidiaries has an ownership interest, ex-
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cept to the extent that cash in an amount equal to any such income has
actually been received by U.S. Borrower or (subject to clause (b) below)
any of its Subsidiaries during such period;
(b) the net income of any Subsidiary of U.S. Borrower (other than a
Foreign Subsidiary or a U.S. Subsidiary Guarantor) during such period to
the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary of that income is not permitted by
operation of the terms of its Organizational Documents or any agreement
(other than any municipal loan or related agreements entered into in
connection with the incurrence of industrial or economic revenue bonds),
instrument, judgment, decree, order, statute, rule or regulation
applicable to that Subsidiary during such period, except that U.S.
Borrower's equity in net loss of any such Subsidiary for such period,
other than any non-cash loss that does not result in an accrual or reserve
for cash charges in any future period, shall be included in determining
Consolidated Net Income;
(c) any gain (or loss), together with any related provisions for
taxes on any such gain (or the tax effect of any such loss), realized
during such period by U.S. Borrower or any of its Subsidiaries upon (i)
any Asset Sale (other than any dispositions in the ordinary course of
business) by U.S. Borrower or any of its Subsidiaries, (ii) the
disposition of any Cash Equivalents or (iii) the repayment or cancellation
of any Indebtedness of U.S. Borrower or any of its Subsidiaries;
(d) gains and losses due solely to fluctuations in currency values
and the related tax effects determined in accordance with GAAP for such
period;
(e) earnings resulting from any reappraisal, revaluation or write-up
of assets;
(f) unrealized gains and losses with respect to Hedging Obligations
for such period;
(g) other than for purposes of the definition of Excess Cash Flow,
any extraordinary or nonrecurring gain (or extraordinary or nonrecurring
loss), together with any related provision for taxes on any such gain (or
the tax effect of any such loss), recorded or recognized by U.S. Borrower
or any of its Subsidiaries during such period; provided that such
nonrecurring losses shall not exceed $7.5 million in any Test Period;
(h) any expenses or reserves for liabilities to the extent that the
U.S. Borrower or any of its Subsidiaries is entitled to indemnification
therefore under binding agreements; provided that any liabilities for
which the U.S. Borrower or such Subsidiary is not actually indemnified
shall reduce Consolidated Net Income in the period in which it is
determined that the U.S. Borrower or such Subsidiary will not be
indemnified; and
(i) the net income (or loss) of Thermal-Gard, Inc., so long as U.S.
Borrower is using commercially reasonable efforts to dispose of it or
discontinue its operations.
For purposes of this definition of "Consolidated Net Income,"
"NONRECURRING" means any gain or loss as of any date that is not reasonably
likely to recur within two years following such date; provided that if there was
a gain or loss similar to such gain or loss within the two years preceding such
date, such gain or loss shall not be deemed nonrecurring and (2) Consolidated
Net Income shall be reduced (to the extent not already reduced thereby) by the
amount of any payments to or on behalf of Parent made pursuant to Sections
6.08(c) and (d).
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"CONSOLIDATED SENIOR INDEBTEDNESS" shall mean, as at any date of
determination, the difference of Consolidated Indebtedness on such date less the
aggregate amount of all Subordinated Indebtedness of the Borrowers and the
Subsidiary Guarantors determined on a consolidated basis in accordance with
GAAP.
"CONSOLIDATED TAX EXPENSE" shall mean, for any period, the tax
expense of U.S. Borrower and its Subsidiaries, for such period, determined on a
consolidated basis in accordance with GAAP.
"CONTESTED COLLATERAL LIEN CONDITIONS" shall mean, with respect to
any Permitted Lien of the type described in clauses (a), (b), (e) and (f) of
Section 6.02, the following conditions:
(a) any proceeding instituted contesting such Lien shall operate to
stay the sale or forfeiture of any portion of the Collateral on account of
such Lien;
(b) to the extent such Lien is in an amount in excess of $1,000,000,
the appropriate Loan Party shall maintain cash reserves in accordance with
GAAP; and
(c) such Lien shall in all respects be subject and subordinate in
priority to the Lien and security interest created and evidenced by the
Security Documents, except if and to the extent that the law or regulation
creating, permitting or authorizing such Lien provides that such Lien is
or must be superior to the Lien and security interest created and
evidenced by the Security Documents.
"CONTINGENT OBLIGATION" shall mean, as to any person, any
obligation, agreement, understanding or arrangement of such person guaranteeing
or intended to guarantee any Indebtedness, leases, dividends or other
obligations ("PRIMARY OBLIGATIONS") of any other person (the "PRIMARY OBLIGOR")
in any manner, whether directly or indirectly, including any obligation of such
person, whether or not contingent, (a) to purchase any such primary obligation
or any property constituting direct or indirect security therefor; (b) to
advance or supply funds (i) for the purchase or payment of any such primary
obligation or (ii) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary
obligor; (c) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation; (d) with respect
to bankers' acceptances, letters of credit and similar credit arrangements,
until a reimbursement obligation arises (which reimbursement obligation shall
constitute Indebtedness); or (e) otherwise to assure or hold harmless the holder
of such primary obligation against loss in respect thereof; provided, however,
that the term "Contingent Obligation" shall not include endorsements of
instruments for deposit or collection in the ordinary course of business or any
product warranties. The amount of any Contingent Obligation shall be deemed to
be an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made (or, if less,
the maximum amount of such primary obligation for which such person may be
liable, whether singly or jointly, pursuant to the terms of the instrument
evidencing such Contingent Obligation) or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
person is required to perform thereunder) as determined by such person in good
faith.
"CONTROL" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "CONTROLLING" and "CONTROLLED" shall have meanings
correlative thereto.
"CONTROL AGREEMENT" shall have the meaning assigned to such term in
the U.S. Security Agreement.
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"CREDIT EXTENSION" shall mean, as the context may require, (i) the
making of a Loan by a Lender or (ii) the issuance of any Letter of Credit, or
the amendment, extension or renewal of any existing Letter of Credit, by the
Issuing Bank.
"DEBT ISSUANCE" shall mean the incurrence by Parent or any of its
Subsidiaries of any Indebtedness after the Original Closing Date (other than as
permitted by Section 6.01).
"DEBT SERVICE" shall mean, for any period, Cash Interest Expense for
such period plus scheduled principal amortization of all Indebtedness for such
period.
"DEFAULT" shall mean any event, occurrence or condition which is, or
upon notice, lapse of time or both would constitute, an Event of Default.
"DEFAULT RATE" shall have the meaning assigned to such term in
Section 2.06(c).
"DISQUALIFIED CAPITAL STOCK" shall mean any Equity Interest which,
by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable), or upon the happening of any event, (a) matures
(excluding any maturity as the result of an optional redemption by the issuer
thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof, in whole or in
part, on or prior to the first anniversary of the Final Maturity Date, (b) is
convertible into or exchangeable (unless at the sole option of the issuer
thereof) for (i) debt securities or (ii) any Equity Interests referred to in (a)
above, in each case at any time on or prior to the first anniversary of the
Final Maturity Date, or (c) contains any repurchase obligation which may come
into effect prior to payment in full of all Obligations; provided, further,
however, that any Equity Interests that would not constitute Disqualified
Capital Stock but for provisions thereof giving holders thereof (or the holders
of any security into or for which such Equity Interests is convertible,
exchangeable or exercisable) the right to require the issuer thereof to redeem
such Equity Interests upon the occurrence of a change in control or an asset
sale occurring prior to the first anniversary of the Final Maturity Date shall
not constitute Disqualified Capital Stock if such Equity Interests provide that
the issuer thereof will not redeem any such Equity Interests pursuant to such
provisions prior to the repayment in full of the Obligations.
"DIVIDEND" with respect to any person shall mean that such person
has declared or paid a dividend or returned any equity capital to the holders of
its Equity Interests or authorized or made any other distribution, payment or
delivery of property (other than Qualified Capital Stock of such person) or cash
to the holders of its Equity Interests as such, or redeemed, retired, purchased
or otherwise acquired, directly or indirectly, for consideration any of its
Equity Interests outstanding (or any options or warrants issued by such person
with respect to its Equity Interests), or set aside any funds for any of the
foregoing purposes, or shall have permitted any of its Subsidiaries to purchase
or otherwise acquire for consideration any of the Equity Interests of such
person outstanding (or any options or warrants issued by such person with
respect to its Equity Interests). Without limiting the foregoing, "Dividends"
with respect to any person shall also include all payments made or required to
be made by such person with respect to any stock appreciation rights, plans,
equity incentive or achievement plans or any similar plans or setting aside of
any funds for the foregoing purposes.
"DOCUMENTATION AGENT" shall have the meaning assigned to such term
in the preamble hereto.
"DOLLARS" or "$" shall mean lawful money of the United States.
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"DOMESTIC SUBSIDIARY" shall mean any Subsidiary that is organized or
existing under the laws of the United States, any state thereof or the District
of Columbia.
"EMBARGOED PERSON" shall have the meaning assigned to such term in
Section 6.21.
"ENVIRONMENT" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, natural resources, the workplace or as otherwise defined in
any Environmental Law.
"ENVIRONMENTAL CLAIM" shall mean any claim, notice, demand, order,
action, suit, proceeding or other communication alleging liability for
investigation, remediation, removal, cleanup, response, corrective action,
damages to natural resources, personal injury, property damage, fines, penalties
or other costs resulting from, related to or arising out of (i) the presence,
Release or threatened Release in or into the Environment of Hazardous Material
at any location or (ii) any violation of Environmental Law, and shall include
any claim seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief resulting from, related to or arising out of
the presence, Release or threatened Release of Hazardous Material or alleged
injury or threat of injury to health, safety or the Environment.
"ENVIRONMENTAL LAW" shall mean any and all applicable present and
future treaties, laws, statutes, ordinances, regulations, rules, decrees,
orders, judgments, consent orders, consent decrees, code or other binding
requirements, and the common law and judicial or agency interpretation, policy
or guidance, relating to protection of public health or the Environment, the
Release or threatened Release of Hazardous Material, natural resources or
natural resource damages, or occupational safety or health.
"ENVIRONMENTAL PERMIT" shall mean any permit, license, approval,
consent or other authorization required by or from a Governmental Authority
under Environmental Law.
"EQUIPMENT" shall have the meaning assigned to such term in the U.S.
Security Agreement.
"EQUITY FINANCING" shall mean the cash contribution of approximately
$136.7 million by Sponsor, its affiliates and certain members of U.S. Borrower's
management to Holdings in return for Equity Interests in Holdings, and the
contribution of such cash by Holdings to Parent in connection with the funding
of the Acquisition.
"EQUITY INTEREST" shall mean, with respect to any person, any and
all shares, interests, participations or other equivalents, including membership
interests (however designated, whether voting or nonvoting), of equity of such
person, including, if such person is a partnership, partnership interests
(whether general or limited) and any other interest or participation that
confers on a person the right to receive a share of the profits and losses of,
or distributions of property of, such partnership, whether outstanding on the
Original Closing Date or issued after the Original Closing Date, but excluding
debt securities convertible or exchangeable into such equity.
"EQUITY INVESTORS" shall mean Sponsor and one or more investors
reasonably satisfactory to the Administrative Agent and the Arrangers.
"EQUITY ISSUANCE" shall mean, without duplication, (i) any issuance
or sale by Parent or Holdings after the Original Closing Date of any Equity
Interests in Parent or Holdings (including any Equity Interests issued upon
exercise of any warrant or option), as applicable, or any warrants or options to
purchase such Equity Interests or (ii) any contribution to the capital of Parent
or Holdings; provided, however, that an Equity Issuance shall not include (x)
any Preferred Stock Issuance or Debt Issuance, (y) any
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such sale or issuance by Holdings of its Equity Interests (including its Equity
Interests issued upon exercise of any warrant or option or warrants or options
to purchase its Equity Interests but excluding Disqualified Capital Stock), in
each case, to directors, officers or employees of any Company and (z) any
Excluded Issuance.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
"ERISA AFFILIATE" shall mean, with respect to any person, any trade
or business (whether or not incorporated) that, together with such person, is
treated as a single employer under Section 414(b) or (c) of the Code, or solely
for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as
a single employer under Section 414 of the Code.
"ERISA EVENT" shall mean (a) any "reportable event," as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan (other than an event for which the 30-day notice period is waived by
regulation); (b) the existence with respect to any Plan of an "accumulated
funding deficiency" (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived, the failure to make by its due date a required
installment under Section 412(m) of the Code with respect to any Plan or the
failure to make any required contribution to a Multiemployer Plan; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by any Company or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by any Company or any of its ERISA Affiliates from the PBGC or a
plan administrator of any notice relating to the intention to terminate any Plan
or Plans or to appoint a trustee to administer any Plan, or the occurrence of
any event or condition which could reasonably be expected to constitute grounds
under ERISA for the termination of, or the appointment of a trustee to
administer, any Plan; (f) except as set forth on Schedule 3.17, the incurrence
by any Company or any of its ERISA Affiliates of any liability with respect to
the withdrawal from any Plan or Multiemployer Plan; (g) except as set forth on
Schedule 3.17, the receipt by any Company or its ERISA Affiliates of any notice
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA; (h) the making of any amendment to any
Plan which could result in the imposition of a lien or the posting of a bond or
other security; and (i) the occurrence of a nonexempt prohibited transaction
(within the meaning of Section 4975 of the Code or Section 406 of ERISA) which
could reasonably be expected to result in liability to any Company.
"EURODOLLAR BORROWING" shall mean a Borrowing comprised of
Eurodollar Loans.
"EURODOLLAR LOAN" shall mean any Eurodollar Revolving Loan or
Eurodollar Term Loan.
"EURODOLLAR REVOLVING BORROWING" shall mean a Borrowing comprised of
Eurodollar Revolving Loans.
"EURODOLLAR REVOLVING LOAN" shall mean any Revolving Loan bearing
interest at a rate determined by reference to the Adjusted LIBOR Rate in
accordance with the provisions of Article II.
"EURODOLLAR TERM BORROWING" shall mean a Borrowing comprised of
Eurodollar Term Loans.
"EURODOLLAR TERM LOAN" shall mean any Term Loan bearing interest at
a rate determined by reference to the Adjusted LIBOR Rate in accordance with the
provisions of Article II.
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"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Article VIII.
"EXCESS AMOUNT" shall have the meaning assigned to such term in
Section 2.10(h)(ii).
"EXCESS CASH FLOW" shall mean, for any Excess Cash Flow Period,
Consolidated EBITDA for such Excess Cash Flow Period, minus, without
duplication:
(a) Debt Service for such Excess Cash Flow Period actually paid
during such Excess Cash Flow Period;
(b) Capital Expenditures during such Excess Cash Flow Period
(excluding Capital Expenditures made in such Excess Cash Flow Period where
a certificate in the form contemplated by the following clause (c) was
previously delivered) that are paid in cash;
(c) (x) Capital Expenditures that U.S. Borrower or any of its
Subsidiaries shall, during such Excess Cash Flow Period, become obligated
to make but that are not made during such Excess Cash Flow Period;
provided that U.S. Borrower shall deliver a certificate to the
Administrative Agent not later than 90 days after the end of such Excess
Cash Flow Period, signed by a Responsible Officer of U.S. Borrower and
certifying that such Capital Expenditures will be made in the following
Excess Cash Flow Period or (y) the CapEx Carryforward Amount for such
Excess Cash Flow Period less the CapEx Carryforward Amount from the prior
Excess Cash Flow Period that is not used in such Excess Cash Flow Period;
(d) the aggregate amount of investments made in cash during such
period pursuant to Sections 6.04(e), (i), (j), (k) and (m) (other than
investments made with Excluded Issuances);
(e) taxes of U.S. Borrower and its Subsidiaries that were paid in
cash during such Excess Cash Flow Period or will be paid within six months
after the end of such Excess Cash Flow Period and for which reserves have
been established;
(f) Permitted Tax Distributions that are paid during the respective
Excess Cash Flow Period or will be paid within six months after the close
of such Excess Cash Flow Period;
(g) the absolute value of the difference, if negative, of the amount
of Net Working Capital at the end of the prior Excess Cash Flow Period
over the amount of Net Working Capital at the end of such Excess Cash Flow
Period;
(h) losses excluded from the calculation of Consolidated Net Income
by operation of clause (c) or (g) of the definition thereof that are paid
in cash during such Excess Cash Flow Period;
(i) to the extent added to determine Consolidated EBITDA, costs and
expenses incurred in connection with the Acquisition and the MW
Acquisition;
(j) to the extent added to determine Consolidated EBITDA, all items
that did not result from a cash payment to U.S. Borrower or any of its
Subsidiaries on a consolidated basis during such Excess Cash Flow Period;
and
(k) permanent repayments and prepayments of Indebtedness (other than
the Obligations) made by U.S. Borrower and its Subsidiaries during such
fiscal year to the extent funded with internally generated funds;
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provided that any amount deducted pursuant of any of the foregoing clauses that
will be paid after the close of such Excess Cash Flow Period shall not be
deducted again in a subsequent Excess Cash Flow Period; plus, without
duplication:
(i) the difference, if positive, of the amount of Net Working
Capital at the end of the prior Excess Cash Flow Period over the amount of
Net Working Capital at the end of such Excess Cash Flow Period;
(ii) all proceeds received during such Excess Cash Flow Period of
any Indebtedness to the extent used to finance any Capital Expenditure
(other than Indebtedness under this Agreement to the extent there is no
corresponding deduction to Excess Cash Flow above in respect of the use of
such borrowings);
(iii) to the extent any permitted Capital Expenditures referred to
in (c) above do not occur in the Excess Cash Flow Period specified in the
certificate of U.S. Borrower provided pursuant to (c) above, such amounts
of Capital Expenditures that were not so made in the Excess Cash Flow
Period specified in such certificates;
(iv) any return of capital on or in respect of investments received
in cash during such period other than proceeds of an Asset Sale, which
investments were made pursuant to Section 6.04(e), (i), (j), (k) or (m)
(other than investments made from Excluded Issuances);
(v) income or gain excluded from the calculation of Consolidated Net
Income by operation of clause (c) or (g) of the definition thereof that is
realized in cash during such Excess Cash Flow Period (except to the extent
such gain is subject to Section 2.10);
(vi) if deducted in the computation of Consolidated EBITDA, interest
income; and
(vii) to the extent subtracted in determining Consolidated EBITDA,
all items that did not result from a cash payment by U.S. Borrower or any
of its Subsidiaries on a consolidated basis during such Excess Cash Flow
Period;
provided further that Excess Cash Flow for the fiscal year of U.S. Borrower
ending on December 31, 2004 shall be deemed to be Excess Cash Flow for the final
fiscal quarter of such fiscal year.
"EXCESS CASH FLOW PERIOD" shall mean each fiscal year of U.S.
Borrower.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"EXCLUDED ISSUANCE" shall mean an issuance and sale of Qualified
Capital Stock of Holdings to the Permitted Holders and any corresponding
issuance and sale of Qualified Capital Stock of Parent to Holdings financed with
the net proceeds thereof.
"EXCLUDED TAXES" shall mean, with respect to the Administrative
Agent, any Lender, the Issuing Bank or any other recipient (each a "RECIPIENT,"
and collectively the "RECIPIENTS") of any payment to be made by or on account of
any obligation of either Borrower hereunder, (a) income or franchise taxes
imposed on (or measured by) its net income as a result of a present or former
connection between the Recipient and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from the
Recipient having executed, delivered or performed its obligations or received a
payment under, or enforced, or otherwise in connection with, this Agreement or
any other Loan Document), (b) in the case of a For-
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eign Lender, any U.S. federal withholding taxes that are attributable to such
Foreign Lender's failure to comply with the requirements of Section 2.15(e), (c)
Taxes that are United States withholding taxes imposed on amounts payable to
such Lender at the time such Lender becomes a party to this Agreement, except to
the extent that such Lender's assignor (if any) was entitled, immediately prior
to such assignment, to receive additional amounts or indemnification from either
Borrower with respect to such withholding taxes pursuant to Section 2.15 (or
would have been so entitled had the assignor's tax status (residence, etc.)
immediately before such assignment been the same as the assignee's tax status
immediately after such assignment) and (d) U.S. federal withholding taxes that
are imposed as a result of an event occurring after the Lender becomes a Lender
other than a Change in Law or regulation or interpretation thereof.
"EXECUTIVE ORDER" shall have the meaning assigned to such term in
Section 3.22.
"EXECUTIVE ORDERS" shall have the meaning assigned to such term in
Section 6.21.
"EXISTING LIEN" shall have the meaning assigned to such term in
Section 6.02(c).
"EXISTING U.S. TERM LOAN" shall mean the term loans made by the U.S.
Lenders to U.S. Borrower pursuant to Sections 2.01(a) and (d). Each Existing
U.S. Term Loan shall be either an ABR Term Loan or a Eurodollar Term Loan.
"EXISTING U.S. TERM LOAN COMMITMENT" shall mean, with respect to
each Existing U.S. Term Loan Lender, the commitment, if any, of such Existing
U.S. Term Loan Lender to make an Existing U.S. Term Loan hereunder on the
Original Closing Date and on the First Amendment Effectiveness Date in the
amount set forth on Schedule I to the Lender Addendum executed and delivered by
such Existing U.S. Term Loan Lender. The aggregate amount of the U.S. Lenders'
Existing U.S. Term Loan Commitments as of the First Amendment Effectiveness Date
was $170.0 million.
"EXISTING U.S. TERM LOAN LENDER" shall mean each U.S. Lender that
has an Existing U.S. Term Loan Commitment or is the holder of an Existing U.S.
Term Loan.
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System of the United States arranged by federal funds brokers,
as published on the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day that is a Business
Day, the average of the quotations for the day for such transactions received by
the Administrative Agent from three federal funds brokers of recognized standing
selected by it.
"FEE LETTER" shall mean the confidential Fee Letter, dated July 22,
2004, among Holdings, the Arrangers, UBS Loan Finance LLC, Deutsche Bank AG
Cayman Islands Branch and JPMorgan Chase Bank.
"FEES" shall mean the Commitment Fees, the Administrative Agent
Fees, the LC Participation Fees and the Fronting Fees.
"FINAL MATURITY DATE" shall mean the latest of the Revolving
Maturity Date and the Term Loan Maturity Date.
"FINANCIAL OFFICER" of any person shall mean the chief financial
officer, principal accounting officer, treasurer or controller of such person.
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"FIRREA" shall mean the Federal Institutions Reform, Recovery and
Enforcement Act of 1989, as amended.
"FIRST AMENDMENT EFFECTIVENESS DATE" shall mean March 3, 2004.
"FOREIGN LENDER" shall mean any Lender that is not, for United
States federal income tax purposes, (i) a citizen or resident of the United
States, (ii) a corporation or partnership or entity treated as a corporation or
partnership created or organized in or under the laws of the United States, or
any political subdivision thereof, (iii) an estate whose income is subject to
U.S. federal income taxation regardless of its source or (iv) a trust if a court
within the United States is able to exercise primary supervision over the
administration of such trust and one or more United States persons have the
authority to control all substantial decisions of such trust.
"FOREIGN PLAN" shall mean any employee benefit plan, program,
policy, arrangement or agreement maintained or contributed to by any Company
with respect to employees employed outside the United States.
"FOREIGN SUBSIDIARY" shall mean a Subsidiary that is organized under
the laws of a jurisdiction other than the United States or any state thereof or
the District of Columbia.
"FRONTING FEE" shall have the meaning assigned to such term in
Section 2.05(c).
"GAAP" shall mean generally accepted accounting principles in the
United States applied on a consistent basis; provided that with respect to
Canadian Borrower and any Canadian Subsidiaries organized under the laws of
Canada or a province thereof, for purposes of Sections 3.13, 5.05, 5.07 and 5.09
"GAAP" shall mean generally accepted accounting principles in Canada applied on
a consistent basis.
"GOVERNMENTAL AUTHORITY" shall mean any federal, state, provincial,
local or foreign court, central bank or governmental agency, authority,
instrumentality or regulatory body or any subdivision thereof.
"GOVERNMENTAL REAL PROPERTY DISCLOSURE REQUIREMENTS" shall mean any
Requirement of Law of any Governmental Authority requiring notification of the
buyer, lessee, mortgagee, assignee or other transferee of any Real Property,
facility, establishment or business, or notification, registration or filing to
or with any Governmental Authority, in connection with the sale, lease,
mortgage, assignment or other transfer (including any transfer of control) of
any Real Property, facility, establishment or business, of the actual or
threatened presence or Release in or into the Environment, or the use, disposal
or handling of Hazardous Material on, at, under or near the Real Property,
facility, establishment or business to be sold, leased, mortgaged, assigned or
transferred.
"GUARANTEED OBLIGATIONS" shall mean the U.S. Guaranteed Obligations
and/or the Canadian Guaranteed Obligations, as applicable.
"GUARANTEES" shall mean the guarantees issued pursuant to Article
VII by Parent and the Subsidiary Guarantors.
"GUARANTORS" shall mean Parent and the Subsidiary Guarantors.
"HAZARDOUS MATERIALS" shall mean the following: hazardous
substances; hazardous wastes; polychlorinated biphenyls ("PCBS") or any
substance or compound containing PCBs; asbestos or
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any asbestos-containing materials in any form or condition; radon or any other
radioactive materials including any source, special nuclear or by-product
material; petroleum, crude oil or any fraction thereof; and any other pollutant
or contaminant or chemicals, wastes, materials, compounds, constituents or
substances, subject to regulation or which can give rise to liability under any
Environmental Laws.
"HEDGING AGREEMENT" shall mean any swap, cap, collar, forward
purchase or similar agreements or arrangements dealing with interest rates,
currency exchange rates or commodity prices, either generally or under specific
contingencies.
"HEDGING OBLIGATIONS" shall mean obligations under or with respect
to Hedging Agreements.
"HOLDINGS" shall mean Ply Gem Investment Holdings, Inc. (formerly
known as CI Investment Holdings, Inc.), a Delaware corporation.
"HOLDINGS SUBORDINATED INDEBTEDNESS" shall mean Indebtedness of
Holdings owing to any Permitted Holder issued pursuant to the Subordinated Note
Purchase Agreement dated the Original Closing Date as supplemented on the Second
Amendment Effectiveness Date.
"INCREMENTAL REVOLVING COMMITMENT" shall have the meaning assigned
to such term in Section 11.02(f).
"INDEBTEDNESS" of any person shall mean, without duplication, (a)
all obligations of such person for borrowed money or advances; (b) all
obligations of such person evidenced by bonds, debentures, notes or similar
instruments; (c) all obligations of such person upon which interest charges are
customarily paid or accrued; (d) all obligations of such person under
conditional sale or other title retention agreements relating to property
purchased by such person; (e) all obligations of such person issued or assumed
as the deferred purchase price of property or services (excluding trade accounts
payable and accrued obligations incurred in the ordinary course of business on
normal trade terms and not overdue by more than 90 days); (f) all Indebtedness
of others secured by any Lien on property owned or acquired by such person,
whether or not the obligations secured thereby have been assumed, but limited to
the fair market value of such property; (g) all Capital Lease Obligations,
Purchase Money Obligations and synthetic lease obligations of such person; (h)
all Hedging Obligations to the extent required to be reflected on a balance
sheet of such person; (i) all obligations of such person (not including any
contingent obligations) for the reimbursement of any obligor in respect of
letters of credit, letters of guaranty, bankers' acceptances and similar credit
transactions; and (j) all Contingent Obligations of such person in respect of
Indebtedness or obligations of others of the kinds referred to in clauses (a)
through (i) above. The Indebtedness of any person shall include the Indebtedness
of any other entity (including any partnership in which such person is a general
partner) to the extent such person is liable therefor as a result of such
person's ownership interest in or other relationship with such entity, except to
the extent that terms of such Indebtedness expressly provide that such person is
not liable therefor.
"INDEMNIFIED TAXES" shall mean all Taxes other than Excluded Taxes.
"INDEMNITEE" shall have the meaning assigned to such term in Section
11.03(b).
"INFORMATION" shall have the meaning assigned to such term in
Section 11.12.
"INSURANCE POLICIES" shall mean the insurance policies and coverages
required to be maintained by each Loan Party which is an owner of Mortgaged
Property with respect to the applicable Mortgaged Property pursuant to Section
5.04 and all renewals and extensions thereof.
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"INSURANCE REQUIREMENTS" shall mean, collectively, all provisions of
the Insurance Policies, all requirements of the issuer of any of the Insurance
Policies and all orders, rules, regulations and any other requirements of the
National Board of Fire Underwriters (or any other body exercising similar
functions) binding upon each Loan Party which is an owner of Mortgaged Property
and applicable to the Mortgaged Property or any use or condition thereof.
"INTELLECTUAL PROPERTY" shall have the meaning assigned to such term
in Section 3.06(a).
"INTERCOMPANY NOTE" shall mean the U.S. Intercompany Note and the
Canadian Intercompany Note.
"INTEREST ELECTION REQUEST" shall mean a request by either Borrower
to convert or continue a Revolving Borrowing or Term Borrowing in accordance
with Section 2.08(b), substantially in the form of Exhibit E.
"INTEREST PAYMENT DATE" shall mean (a) with respect to any ABR Loan
(including Swingline Loans), the last Business Day of each March, June,
September and December to occur during any period in which such Loan is
outstanding, (b) with respect to any Eurodollar Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Eurodollar Loan with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period,
(c) with respect to any Revolving Loan or Swingline Loan, the Revolving Maturity
Date or such earlier date on which the Revolving Commitments are terminated and
(d) with respect to any Term Loan, the Term Loan Maturity Date.
"INTEREST PERIOD" shall mean, with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months (or, if available to all affected Lenders, nine or twelve months)
thereafter, as the applicable Borrower may elect; provided that (a) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day, and (b) any
Interest Period that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing; provided, however, that an Interest Period shall
be limited to the extent required under Section 2.03(e).
"INVESTMENTS" shall have the meaning assigned to such term in
Section 6.04.
"IPO" shall mean the first underwritten public offering by Parent or
Holdings of its Equity Interests after the Second Amendment Effectiveness Date
pursuant to a registration statement filed with the Securities and Exchange
Commission in accordance with the Securities Act.
"IPO ENTITY" shall mean whichever of Parent or Holdings effects an
IPO.
"ISSUING BANK" shall mean, as the context may require, (a) UBS AG,
Stamford Branch, with respect to Letters of Credit issued by it; (b) any other
Lender that may become an Issuing Bank pursuant to Sections 2.18(j) and (k) with
respect to Letters of Credit issued by such Lender; or (c) collectively, all of
the foregoing.
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"JOINDER AGREEMENT" shall mean a joinder agreement substantially in
the form of Exhibit F.
"JOINT LEAD ARRANGERS" shall have the meaning assigned to such term
in the preamble hereto.
"JUDGMENT CURRENCY" shall have the meaning assigned to such term in
Section 11.16.
"JUDGMENT CURRENCY CONVERSION DATE" shall have the meaning assigned
to such term in Section 11.16.
"LANDLORD ACCESS AGREEMENT" shall mean (x) with respect to a Real
Property located in the United States, a U.S. Landlord Access Agreement,
substantially in the form of Exhibit G-1 and (y) with respect to a Real Property
located in Canada, a Canadian Landlord Access Agreement, substantially in the
form of Exhibit G-2, or, in either case, a landlord access agreement in such
other form as may reasonably be acceptable to the Collateral Agent.
"LC COMMITMENT" shall mean the commitment of the Issuing Bank to
issue Letters of Credit pursuant to Section 2.18, as the same shall be reduced
from time to time pursuant to Section 2.07 or Section 2.18. The amount of the LC
Commitment shall be $35.0 million as of the Second Amendment Effectiveness Date,
but in no event exceed the Revolving Commitments.
"LC DISBURSEMENT" shall mean a payment or disbursement made by the
Issuing Bank pursuant to a Letter of Credit.
"LC EXPOSURE" shall mean at any time the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate principal amount of all Reimbursement Obligations outstanding at such
time; provided that the amount in clause (a) will be reduced by (x) for any
purpose other than calculating a fee due under this Agreement, the amount of
industrial or economic revenue bonds issued in connection with the Assumed Debt
and held by a remarketing agent or trustee for the benefit of the Collateral
Agent and (y) the amount of cash deposited by U.S. Borrower in the Ply Gem LC
Restricted Account. The LC Exposure of any Revolving Lender at any time shall
mean its Pro Rata Percentage of the aggregate LC Exposure at such time.
"LC PARTICIPATION FEE" shall have the meaning assigned to such term
in Section 2.05(c).
"LC REQUEST" shall mean a request by U.S. Borrower in accordance
with the terms of Section 2.18(b) and substantially in the form of Exhibit H, or
such other form as shall be approved by the Administrative Agent.
"LC SUB-ACCOUNT" shall have the meaning assigned to such term in
Section 9.01(d).
"LEASES" shall mean any and all leases, subleases, tenancies,
options, concession agreements, rental agreements, occupancy agreements,
franchise agreements, access agreements and any other agreements (including all
amendments, extensions, replacements, renewals, modifications and/or guarantees
thereof), whether or not of record and whether now in existence or hereafter
entered into, affecting the use or occupancy of all or any portion of any Real
Property.
"LENDER ADDENDUM" shall mean with respect to any Lender on the
Original Closing Date, the First Amendment Effectiveness Date or the Second
Amendment Effectiveness Date, a lender addendum in the form of Exhibit I, to be
executed and delivered by such Lender on the Original Closing
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Date, the First Amendment Effectiveness Date or the Second Amendment
Effectiveness Date as provided in Section 11.14.
"LENDER AFFILIATE" shall mean with respect to any Lender that is a
fund that invests in bank loans, any other fund that invests in commercial loans
and is managed or advised by the same investment advisor as such Lender or by an
Affiliate of such advisor.
"LENDERS" shall mean the U.S. Lenders and the Canadian Term Loan
Lenders.
"LETTER OF CREDIT" shall mean any (i) Standby Letter of Credit and
(ii) Commercial Letter of Credit, in each case, issued or to be issued by an
Issuing Bank for the account of U.S. Borrower pursuant to Section 2.18.
"LETTER OF CREDIT EXPIRATION DATE" shall mean the date which is
fifteen days prior to the Revolving Maturity Date.
"LIBOR RATE" shall mean, with respect to any Eurodollar Borrowing
for any Interest Period therefor, the rate per annum determined by the
Administrative Agent to be the arithmetic mean (rounded to the nearest 1/100th
of 1%) of the offered rates for deposits in dollars with a term comparable to
such Interest Period that appears on the Telerate British Bankers Assoc.
Interest Settlement Rates Page (as defined below) at approximately 11:00 a.m.,
London, England time, on the second full Business Day preceding the first day of
such Interest Period; provided, however, that (i) if no comparable term for an
Interest Period is available, the LIBOR Rate shall be determined using the
weighted average of the offered rates for the two terms most nearly
corresponding to such Interest Period and (ii) if there shall at any time no
longer exist a Telerate British Bankers Assoc. Interest Settlement Rates Page,
"LIBOR Rate" shall mean, with respect to each day during each Interest Period
pertaining to Eurodollar Borrowings comprising part of the same Borrowing, the
rate per annum equal to the rate at which the Administrative Agent is offered
deposits in dollars at approximately 11:00 a.m., London, England time, two
Business Days prior to the first day of such Interest Period in the London
interbank market for delivery on the first day of such Interest Period for the
number of days comprised therein and in an amount comparable to its portion of
the amount of such Eurodollar Borrowing to be outstanding during such Interest
Period. "TELERATE BRITISH BANKERS ASSOC. INTEREST SETTLEMENT RATES PAGE" shall
mean the display designated as Page 3750 on the Telerate System Incorporated
Service (or such other page as may replace such page on such service for the
purpose of displaying the rates at which dollar deposits are offered by leading
banks in the London interbank deposit market).
"LIEN" shall mean, with respect to any property, (a) any mortgage,
deed of trust, lien, pledge, encumbrance, claim, charge, assignment,
hypothecation, security interest or encumbrance of any kind or any arrangement
to provide priority or preference or any filing of any financing statement under
the UCC or any other similar notice of Lien under any similar notice or
recording statute of any Governmental Authority, including any easement,
right-of-way or other encumbrance on title to Real Property, in each of the
foregoing cases whether voluntary or imposed by law, and any agreement to give
any of the foregoing; (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such property; and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"LOAN DOCUMENTS" shall mean this Agreement, each LC Request or
application, the Notes (if any), the Security Documents, each Permitted U.S.
Hedging Agreement, each Permitted Canadian Hedging Agreement and, solely for
purposes of Section 8.01(e) hereof, the Fee Letter.
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"LOAN PARTIES" shall mean Parent, the Borrowers and the Subsidiary
Guarantors.
"LOANS" shall mean, as the context may require, a Revolving Loan, a
U.S. Term Loan, a Canadian Term Loan or a Swingline Loan (and shall include any
Loans contemplated by Sections 11.02(d) or (f)).
"MARGIN STOCK" shall have the meaning assigned to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" shall mean (a) a material adverse effect
on the condition (financial or otherwise), business, operations, assets,
liabilities or prospects of Parent and its Subsidiaries, taken as a whole; (b)
material impairment of the ability of the Loan Parties to fully and timely
perform any of their obligations under any Loan Document; (c) material
impairment of the rights of or benefits or remedies available to the Lenders or
the Collateral Agent under any Loan Document; or (d) a material adverse effect
on the Liens in favor of the Collateral Agent (for its benefit and for the
benefit of the other Secured Parties) on the Collateral or the priority of such
Liens.
"MATERIAL INDEBTEDNESS" shall mean (a) the Indebtedness listed on
Schedule 1.01(c) and (b) any other Indebtedness (other than the Loans and
Letters of Credit) or Hedging Obligations of Parent or any of its Subsidiaries
in an aggregate outstanding principal amount exceeding $15.0 million. For
purposes of determining Material Indebtedness, the "principal amount" in respect
of any Hedging Obligations of any Loan Party at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that such Loan Party
would be required to pay if the related Hedging Agreement were terminated at
such time.
"MAXIMUM RATE" shall have the meaning assigned to such term in
Section 11.13.
"MORTGAGE" shall mean an agreement, including, but not limited to, a
mortgage, deed of trust or any other document, creating and evidencing a Lien on
a Mortgaged Property, which (i) in the case of Real Property owned in fee by a
U.S. Loan Party, shall be substantially in the form of Exhibit J-1, (ii) in the
case of Real Property owned in fee by a Canadian Loan Party, shall be
substantially in the form of Exhibit J-2, and (iii) in the case of leased Real
Property, shall be substantially in the form of Exhibit J-3, or, in each case,
another form reasonably satisfactory to the Collateral Agent, and, in each case,
with such schedules and including such provisions as shall be necessary to
conform such document to applicable local or foreign law or as shall be
customary under applicable local or foreign law.
"MORTGAGED PROPERTY" shall mean (a) each Real Property
identified on Schedule 1.01(d) hereto and (b) each Real Property, if any, which
shall be subject to a Mortgage delivered after the Original Closing Date
pursuant to Section 5.10(d) or (e) or Section 5.13.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan within the
meaning of Section 4001(a)(3) or Section 3(37) of ERISA (a) to which any Company
or any ERISA Affiliate is then making or accruing an obligation to make
contributions; (b) to which any Company or any ERISA Affiliate has within the
preceding five plan years made contributions; or (c) with respect to which any
Company could incur liability.
"MW" shall have the meaning assigned to such term in the recitals
hereto.
"MW ACQUISITION" shall have the meaning assigned to such term in the
recitals hereto.
"MW ACQUISITION DOCUMENTS" shall mean the collective reference to
the MW Acquisition Agreement and the other documents listed on Schedule 3.24.
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"MW PURCHASE AGREEMENT" shall have the meaning assigned to such term
in the recitals hereto.
"MW REFINANCING" shall have the meaning assigned to such term in the
recitals hereto.
"MW SELLERS" shall have the meaning assigned to such term in the
recitals hereto.
"NET CASH PROCEEDS" shall mean:
(a) with respect to any Asset Sale (other than any issuance or sale
of Equity Interests), the cash proceeds received by Parent or any of its
Subsidiaries (including cash proceeds subsequently received (as and when
received by Parent or any of its Subsidiaries) in respect of non-cash
consideration initially received) net of (i) selling expenses (including
reasonable brokers' fees or commissions, legal, accounting and other
professional and transactional fees, transfer and similar taxes and U.S.
Borrower's good faith estimate of income taxes paid or payable in
connection with such sale); (ii) amounts provided as a reserve, in
accordance with GAAP, against (x) any liabilities under any
indemnification obligations associated with such Asset Sale or (y) any
other liabilities retained by Parent or any of its Subsidiaries associated
with the properties sold in such Asset Sale (provided that, to the extent
and at the time any such amounts are released from such reserve, such
amounts shall constitute Net Cash Proceeds); (iii) U.S. Borrower's good
faith estimate of payments required to be made with respect to unassumed
liabilities relating to the properties sold within 90 days of such Asset
Sale (provided that, to the extent such cash proceeds are not used to make
payments in respect of such unassumed liabilities within 90 days of such
Asset Sale, such cash proceeds shall constitute Net Cash Proceeds); and
(iv) the principal amount, premium or penalty, if any, interest and other
amounts on any Indebtedness for borrowed money which is secured by a Lien
on the properties sold in such Asset Sale (so long as such Lien was
permitted to encumber such properties under the Loan Documents at the time
of such sale) and which is repaid with such proceeds (other than any such
Indebtedness assumed by the purchaser of such properties);
(b) with respect to any Debt Issuance, any Equity Issuance or any
other issuance or sale of Equity Interests by Holdings or any of its
Subsidiaries, the cash proceeds thereof, net of customary fees,
commissions, costs and other expenses incurred in connection therewith;
and
(c) with respect to any Casualty Event, the cash insurance proceeds,
condemnation awards and other compensation received in respect thereof,
net of all reasonable costs and expenses incurred in connection with the
collection of such proceeds, awards or other compensation in respect of
such Casualty Event.
"NET WORKING CAPITAL" shall mean, at any time, Consolidated Current
Assets at such time minus Consolidated Current Liabilities at such time.
"NEW SENIOR SUBORDINATED NOTE AGREEMENT" shall mean any indenture,
note purchase agreement or other agreement (including the Senior Subordinated
Note Agreement) pursuant to which the New Senior Subordinated Notes are issued
as in effect on the Second Amendment Effectiveness Date and thereafter amended
from time to time subject to the requirements of this Agreement.
"NEW SENIOR SUBORDINATED NOTE DOCUMENTS" shall mean the New Senior
Subordinated Notes, the New Senior Subordinated Note Agreement, the New Senior
Subordinated Note Guarantees and all other documents executed and delivered with
respect to the New Senior Subordinated Notes or the New Senior Subordinated Note
Agreement.
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"NEW SENIOR SUBORDINATED NOTE GUARANTEES" shall mean the guarantees
of Parent and the U.S. Subsidiary Guarantors pursuant to the New Senior
Subordinated Note Agreement.
"NEW SENIOR SUBORDINATED NOTES" shall mean U.S. Borrower's 9.0%
Senior Subordinated Notes due 2012 issued on the Second Amendment Effectiveness
Date pursuant to the New Senior Subordinated Note Agreement and any registered
notes issued by U.S. Borrower in exchange for, and as contemplated by, such
notes with substantially identical terms as such notes.
"NON-GUARANTOR SUBSIDIARY" shall mean each Subsidiary that is not a
Subsidiary Guarantor.
"NOTES" shall mean any notes evidencing the Term Loans, Revolving
Loans or Swingline Loans issued pursuant to this Agreement, if any,
substantially in the form of Exhibit K-1, K-2, K-3, K-4 or K-5.
"OBLIGATIONS" shall mean the Canadian Obligations and the U.S.
Obligations.
"OFAC" shall have the meaning assigned to such term in Section 3.22.
"OFFER TO REDEEM" shall have the meaning assigned to such term in
Section 2.10(j).
"OFFICERS' CERTIFICATE" shall mean a certificate executed by the
chairman of the Board of Directors (if an officer), the chief executive officer
or the president and one of the Financial Officers, each in his or her official
(and not individual) capacity.
"ORGANIZATIONAL DOCUMENTS" shall mean, with respect to any person,
(i) in the case of any corporation, the certificate of incorporation and by-laws
(or similar documents) of such person, (ii) in the case of any limited liability
company, the certificate of formation and operating agreement (or similar
documents) of such person, (iii) in the case of any limited partnership, the
certificate of formation and limited partnership agreement (or similar
documents) of such person, (iv) in the case of any general partnership, the
partnership agreement (or similar document) of such person and (v) in any other
case, the functional equivalent of the foregoing.
"ORIGINAL AGENTS" shall mean the Agents under the Original Credit
Agreement.
"ORIGINAL CLOSING DATE" shall mean February 12, 2004.
"ORIGINAL CREDIT AGREEMENT" shall have the meaning assigned to such
term in the recitals hereto.
"OTHER LIST" shall have the meaning assigned to such term in Section
6.21.
"OTHER TAXES" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies (including all interest, fines, penalties and additions to tax and
related expenses with regard thereto) arising from any payment made or required
to be made under any Loan Document or from the execution, delivery, registration
or enforcement of, or otherwise with respect to, any Loan Document.
"PARENT" shall have the meaning assigned to such term in the
preamble hereto.
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"PARENT CONSOLIDATED LEVERAGE RATIO" shall mean, at any date of
determination, the ratio of Consolidated Indebtedness on such date to
Consolidated EBITDA for the Test Period then most recently ended, in each case
calculated on a consolidated basis for Parent and its Subsidiaries
notwithstanding the fact that such definitions and some components thereof only
call for calculations based upon U.S. Borrower and its Subsidiaries.
"PARTICIPANT" shall have the meaning assigned to such term in
Section 11.04(e).
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to and defined in ERISA.
"PERFECTION CERTIFICATE" shall mean a certificate in the form of
Exhibit L-1 or any other form approved by the Collateral Agent, as the same
shall be supplemented from time to time by the Second Amendment Perfection
Certificate Supplement, a Perfection Certificate Supplement or otherwise.
"PERFECTION CERTIFICATE SUPPLEMENT" shall mean a certificate
supplement in the form of Exhibit L-2 or any other form approved by the
Collateral Agent.
"PERMITTED ACQUISITION" shall mean any transaction or series of
related transactions for the direct or indirect (a) acquisition of all or
substantially all of the property of any person, or of any business or division
of any person; (b) acquisition of in excess of 50% of the Equity Interests of
any person, and otherwise causing such person to become a Subsidiary of such
person; or (c) merger or consolidation or any other combination with any person
(other than (x) among U.S. Borrower and/or its Subsidiaries as permitted by
Sections 6.05(c) and (d) and (y) between Parent and Holdings in connection with
an IPO), if each of the following conditions is met:
(i) no Default then exists or would result therefrom;
(ii) after giving effect to such transaction on a Pro Forma Basis,
(A) U.S. Borrower shall be in compliance with all covenants set forth in
Section 6.10 as of the most recent Test Period (assuming, for purposes of
Section 6.10, that such transaction, and all other Permitted Acquisitions
consummated since the first day of the relevant Test Period for each of
the financial covenants set forth in Section 6.10 ending on or prior to
the date of such transaction, had occurred on the first day of such
relevant Test Period), and (B) unless expressly approved by the
Administrative Agent, the person or business to be acquired shall have
generated positive cash flow for the Test Period most recently ended prior
to the date of consummation of such acquisition;
(iii) no Company shall, in connection with any such transaction,
assume or remain liable with respect to any Indebtedness or other
liability (including any material tax or ERISA liability) of the related
seller or the business, person or properties acquired, except (A) to the
extent permitted under Section 6.01 and (B) obligations not constituting
Indebtedness incurred in the ordinary course of business and necessary or
desirable to the continued operation of the underlying properties, and any
other such liabilities or obligations not permitted to be assumed or
otherwise supported by any Company hereunder shall be paid in full or
released as to the business, persons or properties being so acquired on or
before the consummation of such acquisition;
(iv) the person or business to be acquired shall be, or shall be
engaged in, a business of the type that U.S. Borrower and its Subsidiaries
are permitted to be engaged in under Section 6.15 and the property
acquired in connection with any such transaction shall be made subject to
the Lien of the Security Documents to the extent required by Section 5.10
and shall be free and clear of any Liens, other than Permitted Collateral
Liens;
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(v) the Board of Directors of the person to be acquired shall not
have indicated publicly its opposition to the consummation of such
acquisition (which opposition has not been publicly withdrawn);
(vi) all transactions in connection therewith shall be consummated
in accordance with all applicable laws of all applicable Governmental
Authorities;
(vii) with respect to any transaction involving Acquisition
Consideration of more than $10.0 million, unless the Administrative Agent
shall otherwise agree, U.S. Borrower shall have provided the
Administrative Agent and the Lenders with (A) historical financial
statements for the last three fiscal years (or, if less, the number of
years since formation) of the person or business to be acquired (audited
if available and, in the case of a transaction involving Acquisition
Consideration of more than $25.0 million, if available without undue cost
or delay) and unaudited financial statements thereof for the most recent
interim period which are available, (B) reasonably detailed projections
for the succeeding five years pertaining to the person or business to be
acquired and updated projections for U.S. Borrower after giving effect to
such transaction, (C) a reasonably detailed description of all material
information relating thereto and copies of all material documentation
pertaining to such transaction, and (D) all such other information and
data relating to such transaction or the person or business to be acquired
as may be reasonably requested by the Administrative Agent or the Required
Lenders; and
(viii) at least 5 Business Days prior to the proposed date of
consummation of the transaction, U.S. Borrower shall have delivered to the
Agents and the Lenders an Officers' Certificate certifying that (A) such
transaction complies with this definition (which shall have attached
thereto reasonably detailed backup data and calculations showing such
compliance), and (B) such transaction could not reasonably be expected to
result in a Material Adverse Effect.
"PERMITTED CANADIAN HEDGING AGREEMENT" shall have the meaning
assigned to such term in the definition of "Canadian Obligations."
"PERMITTED COLLATERAL LIENS" means (i) Contested Liens (as defined
in the Security Agreement), (ii) the Liens described in clauses (a), (b), (c),
(d), (e), (f), (g), (h), (i), (j), (k), (m) and (n) of Section 6.02 and (iii) in
the case of Mortgaged Property, "Permitted Collateral Liens" shall mean the
Liens described in clauses (a), (b), (c), (d), (e), (g), (k) and (n) of Section
6.02; provided, however upon the Original Closing Date or upon the date of
delivery of each additional Mortgage under Section 5.10, 5.11 or 5.13, Permitted
Collateral Liens shall mean only those Liens set forth in Schedule B to the
applicable Mortgage.
"PERMITTED HOLDERS" shall mean (1) Sponsor, Caxton Associates, LLC,
Caxton-Iseman (Ply Gem) L.P., Frederick J. Iseman, Lee D. Meyer, John Wayne,
Shawn Poe, Mark Watson, Bryan Sveinson, David S. McCready, Michael Haley, Robert
A. Ferris, Steven M. Lefkowitz, Lynn Morstad, John D. Roach and any other person
that is a controlled Affiliate of any of the foregoing and (2) any Related Party
of any of the foregoing; provided that in no event shall any operating portfolio
company or any holding company for any operating portfolio company (other than
U.S. Borrower) be a Permitted Holder.
"PERMITTED LIENS" shall have the meaning assigned to such term in
Section 6.02.
"PERMITTED PARENT DEBT" shall have the meaning assigned to such term
in Section 6.01.
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"PERMITTED SALE AND LEASEBACK TRANSACTION" means one or more Sale
and Leaseback Transactions effected as operating leases involving the properties
securing the Assumed Debt on the Original Closing Date or involving plants
located in Calgary, Alberta or Rocky Mount, Virginia; provided that (i) at the
time of and immediately after giving effect to such Permitted Sale and Leaseback
Transaction and the application of the proceeds thereof, no Default shall have
occurred and be continuing and (ii) the proceeds are used to fund the MW
Acquisition.
"PERMITTED TAX DISTRIBUTIONS" means payments, dividends or
distributions by U.S. Borrower to Holdings or Parent or Parent to Holdings in
order to pay consolidated or combined federal, state or local taxes not payable
directly by U.S. Borrower or its Subsidiaries which payments by U.S. Borrower
are not in excess of the tax liabilities that would have been payable by U.S.
Borrower and its Subsidiaries on a stand-alone basis.
"PERMITTED U.S. HEDGING AGREEMENT" shall have the meaning assigned
to such term in the definition of "U.S. Obligations."
"PERSON" shall mean any natural person, corporation, business trust,
joint venture, association, company, limited liability company, partnership or
government, or any agency or political subdivision thereof, in any case, whether
acting in a personal, fiduciary or other capacity.
"PLAN" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA which is maintained or contributed to by
any Company or its ERISA Affiliate or with respect to which any Company could
incur liability (including under Section 4069 of ERISA).
"PLY GEM LC RESTRICTED ACCOUNT" shall mean a restricted deposit
account held at the Collateral Agent the amounts in which serve to cash
collateralize outstanding Letters of Credit. By its execution of this Agreement,
U.S. Borrower consents to and authorizes the establishment and maintenance of
such account by the Collateral Agent and pledges and grants to the Collateral
Agent for the benefit of the Secured Parties, a lien on and security interest
in, such account and all funds therein. It is understood and agreed that the
funds in such account shall be invested only in overnight investments
denominated in U.S. dollars.
"PPSA" shall mean the Personal Property Security Act as in effect
from time to time (except as otherwise specified) in any applicable Province of
Canada.
"PREFERRED STOCK" shall mean, with respect to any person, any and
all preferred or preference Equity Interests (however designated) of such person
whether now outstanding or issued after the Original Closing Date.
"PREFERRED STOCK ISSUANCE" shall mean the issuance or sale by
Holdings or any of its Subsidiaries of any Preferred Stock after the Original
Closing Date (other than (x) as permitted by Section 6.01 or (y) any Excluded
Issuance).
"PREMISES" shall have the meaning assigned thereto in the applicable
Mortgage.
"PRO FORMA BASIS" shall mean on a basis reasonably satisfactory to
the Administrative Agent.
"PRO FORMA COST SAVINGS" shall mean, with respect to any Test
Period, the reductions in costs that occurred during the Test Period that are
(1) directly attributable to an asset acquisition and cal-
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culated on a basis that is consistent with Article 11 of Regulation S-X or (2)
implemented, committed to be implemented or the commencement of implementation
of which has begun in good faith by the business that was the subject of any
such asset acquisition within six months of the date of the asset acquisition
and that are supportable and quantifiable by the underlying records of such
business, as if, in the case of each of clauses (1) and (2), all such reductions
in costs had been effected as of the beginning of such period, decreased by any
incremental expenses incurred or to be incurred during the Test Period in order
to achieve such reduction in costs.
"PRO RATA PERCENTAGE" of any Revolving Lender at any time shall mean
the percentage of the total Revolving Commitments of all Revolving Lenders
represented by such Lender's Revolving Commitment.
"PROPERTY" shall mean any right, title or interest in or to
property or assets of any kind whatsoever, whether real, personal or mixed and
whether tangible or intangible and including Equity Interests or other ownership
interests of any person and whether now in existence or owned or hereafter
entered into or acquired, including all Real Property.
"PURCHASE MONEY OBLIGATION" shall mean, for any person, the
obligations of such person in respect of Indebtedness (including Capital Lease
Obligations) incurred for the purpose of financing all or any part of the
purchase price of any property (including Equity Interests of any person) or the
cost of installation, construction or improvement of any property and any
refinancing thereof; provided, however, that (i) such Indebtedness is incurred
within one year after such acquisition of such property by such person and (ii)
the amount of such Indebtedness does not exceed 100% of the cost of such
acquisition, installation, construction or improvement, as the case may be.
"QUALIFIED CAPITAL STOCK" of any person shall mean any Equity
Interests of such person that are not Disqualified Capital Stock.
"REAL PROPERTY" shall mean, collectively, all right, title and
interest (including any leasehold estate) in and to any and all parcels of or
interests in real property owned, leased or operated by any person, whether by
lease, license or other means, together with, in each case, all easements,
hereditaments and appurtenances relating thereto, all improvements and
appurtenant fixtures and equipment, all general intangibles and contract rights
and other property and rights incidental to the ownership, lease or operation
thereof.
"REFINANCING" shall mean the repayment in full, and the termination
of any commitment to make extensions of credit in connection with, all of the
outstanding indebtedness of Parent or any of its Subsidiaries listed on Schedule
1.01(e).
"REGISTER" shall have the meaning assigned to such term in Section
11.04(c).
"REGULATION D" shall mean Regulation D of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"REGULATION S-X" shall mean Regulation S-X promulgated under the
Securities Act.
"REGULATION T" shall mean Regulation T of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"REGULATION U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
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"REGULATION X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"REIMBURSEMENT OBLIGATIONS" shall mean U.S. Borrower's obligations
under Section 2.18(e) to reimburse LC Disbursements.
"RELATED PARTY" means, with respect to any person, (1) any
controlling stockholder, controlling member, general partner, Subsidiary, or
spouse or immediate family member (in the case of an individual), of such
person, (2) any estate, trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners or owners of which consist solely of one
or more Permitted Holders and/or such other persons referred to in the
immediately preceding clause (1), or (3) any executor, administrator, trustee,
manager, director or other similar fiduciary of any person referred to in the
immediately preceding clause (2), acting solely in such capacity.
"RELEASE" shall mean any spilling, leaking, seepage, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
dumping, disposing, depositing, dispersing, emanating or migrating of any
Hazardous Material in, into, onto or through the Environment.
"REQUIRED LENDERS" shall mean, at any time, Lenders having Loans, LC
Exposure and unused Revolving and Term Loan Commitments representing more than
50% of the sum of all Loans outstanding, LC Exposure and unused Revolving and
Term Loan Commitments at such time.
"REQUIREMENTS OF LAW" shall mean, collectively, any and all
requirements of any Governmental Authority including any and all laws,
ordinances, rules, regulations or similar statutes or case law.
"RESPONSE" shall mean (a) "response" as such term is defined in
CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions required by any
Governmental Authority or voluntarily undertaken to (i) clean up, remove, treat,
abate or in any other way address any Hazardous Material in the environment;
(ii) prevent the Release or threat of Release, or minimize the further Release,
of any Hazardous Material; or (iii) perform studies and investigations in
connection with, or as a precondition to, clause (i) or (ii) above.
"RESPONSIBLE OFFICER" of any person shall mean any executive officer
or Financial Officer of such person and any other officer or similar official
thereof with responsibility for the administration of the obligations of such
person in respect of this Agreement.
"RESTRUCTURING EXPENSES" shall mean losses, expenses and charges
incurred in connection with restructuring by U.S. Borrower and/or one or more of
its Subsidiaries, including in connection with integration of acquired
businesses or persons, disposition of one or more Subsidiaries or businesses,
exiting of one or more lines of businesses and relocation or consolidation of
facilities, including severance, lease termination and other
non-ordinary-course, non-operating costs and expenses in connection therewith.
"REVOLVING AVAILABILITY PERIOD" shall mean the period from and
including the Original Closing Date to but excluding the earlier of (i) the
Business Day preceding the Revolving Maturity Date and (ii) the date of
termination of the Revolving Commitments.
"REVOLVING BORROWING" shall mean a Borrowing comprised of Revolving
Loans.
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"REVOLVING COMMITMENT" shall mean, with respect to each U.S. Lender,
the commitment, if any, of such U.S. Lender to make Revolving Loans hereunder up
to the amount set forth on Schedule I to the Lender Addendum executed and
delivered by such U.S. Lender or by an amendment to this Agreement pursuant to
Section 11.02(f), or in the Assignment and Assumption pursuant to which such
U.S. Lender assumed its Revolving Commitment, as applicable, as the same may be
(a) reduced from time to time pursuant to Section 2.07 and (b) reduced or
increased from time to time pursuant to assignments by or to such U.S. Lender
pursuant to Section 11.04. The aggregate amount of the Lenders' Revolving
Commitments as of the Second Amendment Effectiveness Date is $70.0 million.
"REVOLVING EXPOSURE" shall mean, with respect to any U.S. Lender at
any time, the aggregate principal amount at such time of all outstanding
Revolving Loans of such U.S. Lender, plus the aggregate amount at such time of
such Lender's LC Exposure, plus the aggregate amount at such of such Lender's
Swingline Exposure.
"REVOLVING LENDER" shall mean a U.S. Lender with a Revolving
Commitment.
"REVOLVING LOAN" shall mean a Loan made by the U.S. Lenders to U.S.
Borrower pursuant to Section 2.01(c). Each Revolving Loan shall either be an ABR
Revolving Loan or a Eurodollar Revolving Loan.
"REVOLVING MATURITY DATE" shall mean the date which is five years
after the Original Closing Date or, if such date is not a Business Day, the
first Business Day thereafter.
"ROLLOVER EQUITY" shall mean the phantom equity interest of certain
existing equityholders of Seller in Holdings valued at $4.3 million on terms and
conditions satisfactory to the Administrative Agent in its reasonable judgment.
"SALE AND LEASEBACK TRANSACTION" has the meaning assigned to such
term in Section 6.03.
"SDN LIST" shall have the meaning assigned to such term in Section
6.21.
"SECOND AMENDMENT EFFECTIVENESS DATE" shall have the meaning
assigned to such term in Section 4.03.
"SECOND AMENDMENT PERFECTION CERTIFICATE SUPPLEMENT" shall mean a
certificate in the form of Exhibit L-3 (which shall be completed after giving
effect to the MW Acquisition) or any other form approved by the Collateral
Agent.
"SECOND AMENDMENT TRANSACTION DOCUMENTS" shall mean the MW
Acquisition Documents, the New Senior Subordinated Note Documents and the Loan
Documents.
"SECOND AMENDMENT TRANSACTIONS" shall mean, collectively, the
transactions to occur on or prior to the Second Amendment Effectiveness Date
pursuant to the Second Amendment Transaction Documents, including (a) the
consummation of the MW Acquisition; (b) the execution, delivery and performance
of those Loan Documents which need to be amended or otherwise modified on the
Second Amendment Effectiveness Date to the extent contemplated hereby and the
borrowings to occur on the Second Amendment Effectiveness Date hereunder; (c)
the MW Refinancing; (d) the Supplemental Financing; (e) the issuance of the New
Senior Subordinated Notes; (f) the issuance of the Supplemental Rollover Equity;
and (g) the payment of all fees and expenses to be paid on or prior to the
Second Amendment Effectiveness Date and owing in connection with the foregoing.
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"SECOND CONFIDENTIAL INFORMATION MEMORANDUM" shall mean that certain
confidential information memorandum dated as of August 2004 relating to U.S.
Borrower and its subsidiaries.
"SECURED PARTIES" shall mean the U.S. Secured Parties and the
Canadian Secured Parties.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SECURITIES COLLATERAL" shall have the meaning assigned to such term
in the U.S. Security Agreement or the Canadian Security Agreement, as
applicable.
"SECURITY AGREEMENT" shall mean the U.S. Security Agreement or the
Canadian Security Agreement, as applicable.
"SECURITY DOCUMENTS" shall mean the U.S. Security Documents and the
Canadian Security Documents.
"SELLER" shall have the meaning assigned to such term in the first
recital hereto.
"SENIOR LEVERAGE RATIO" shall mean, at any date of determination,
the ratio of Consolidated Senior Indebtedness on such date to Consolidated
EBITDA for the Test Period then most recently ended.
"SENIOR SUBORDINATED NOTE AGREEMENT" shall mean any indenture, note
purchase agreement or other agreement pursuant to which the Senior Subordinated
Notes are issued as in effect on the Original Closing Date and thereafter
amended from time to time subject to the requirements of this Agreement.
"SENIOR SUBORDINATED NOTE DOCUMENTS" shall mean the Senior
Subordinated Notes, the Senior Subordinated Note Agreement, the Senior
Subordinated Note Guarantees and all other documents executed and delivered with
respect to the Senior Subordinated Notes or the Senior Subordinated Note
Agreement.
"SENIOR SUBORDINATED NOTE GUARANTEES" shall mean the guarantees of
Parent and the U.S. Subsidiary Guarantors pursuant to the Senior Subordinated
Note Agreement.
"SENIOR SUBORDINATED NOTES" shall mean U.S. Borrower's 9.0% Senior
Subordinated Notes due 2012 issued pursuant to the Senior Subordinated Note
Agreement and any registered notes issued by U.S. Borrower in exchange for, and
as contemplated by, such notes with substantially identical terms as such notes.
"SPONSOR" shall mean Caxton-Iseman Capital, Inc.
"STANDBY LETTER OF CREDIT" shall mean any standby letter of credit
or similar instrument issued for the purpose of supporting (a) workers'
compensation liabilities of U.S. Borrower or any of its Subsidiaries, (b) the
obligations of third-party insurers of U.S. Borrower or any of its Subsidiaries
arising by virtue of the laws of any jurisdiction requiring third-party insurers
to obtain such letters of credit, (c) performance, payment, deposit or surety
obligations of U.S. Borrower or any of its Subsidiaries if required by law or
governmental rule or regulation or in accordance with custom and practice in the
industry, (d) Indebtedness of U.S. Borrower or any of its Subsidiaries permitted
to be incurred under Section 6.01 or (e) any other purpose not prohibited
hereunder and acceptable to the Issuing Bank.
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"STATUTORY RESERVES" shall mean for any Interest Period for any
Eurodollar Borrowing, the average maximum rate at which reserves (including any
marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by member banks of the United
States Federal Reserve System in New York City with deposits exceeding one
billion dollars against "Eurodollar liabilities" (as such term is used in
Regulation D). Eurodollar Borrowings shall be deemed to constitute Eurodollar
liabilities and to be subject to such reserve requirements without benefit of or
credit for proration, exceptions or offsets which may be available from time to
time to any Lender under Regulation D.
"SUBORDINATED INDEBTEDNESS" shall mean Indebtedness of either
Borrower or any Guarantor that is by its terms subordinated in right of payment
to the Obligations of such Borrower and such Guarantor, as applicable, including
the Senior Subordinated Notes and the New Senior Subordinated Notes.
"SUBSIDIARY" shall mean, with respect to any person (the "PARENT")
at any date, (i) any person the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date and
(ii) any other corporation, limited liability company, association or other
business entity of which securities or other ownership interests representing
more than 50% of the voting power of all Equity Interests entitled (without
regard to the occurrence of any contingency) to vote in the election of the
Board of Directors thereof are, as of such date, owned, controlled or held by
the parent and/or one or more subsidiaries of the parent. Unless the context
requires otherwise, "Subsidiary" refers to a Subsidiary of U.S. Borrower.
"SUBSIDIARY GUARANTOR" shall mean each U.S. Subsidiary Guarantor and
each Canadian Subsidiary Guarantor.
"SUCCESSFUL SYNDICATION" shall have the meaning given to such term
in the Fee Letter.
"SUPPLEMENTAL FINANCING" shall mean the contribution of $32,291,379
million by Equity Investors to Holdings in return for Equity Interests in
Holdings, and the contribution of such cash by Holdings to Parent in connection
with the funding of the MW Acquisition.
"SUPPLEMENTAL ROLLOVER EQUITY" shall mean the phantom equity
interest of certain members of MW's senior management in Holdings valued at
$2,008,621 million on terms and conditions satisfactory to the Administrative
Agent in its reasonable judgment.
"SURVEY" shall mean a survey of any Mortgaged Property (and all
improvements thereon) which is (a) (i) prepared by a surveyor or engineer
licensed to perform surveys in the jurisdiction where such Mortgaged Property is
located, (ii) dated (or redated) not earlier than six months prior to the date
of delivery thereof unless there shall have occurred within six months prior to
such date of delivery any exterior construction on the site of such Mortgaged
Property or any easement, right of way or other interest in the Mortgaged
Property has been granted or become effective through operation of law or
otherwise with respect to such Mortgaged Property which, in either case, can be
depicted on a survey, in which events, as applicable, such survey shall be dated
(or redated) after the completion of such construction or if such construction
shall not have been completed as of such date of delivery, not earlier than 20
days prior to such date of delivery, or after the grant or effectiveness of any
such easement, right of way or other interest in the Mortgaged Property, (iii)
certified by the surveyor (in a manner reasonably acceptable to the
Administrative Agent) to the Administrative Agent, the Collateral Agent and the
Title Company, (iv) complying in all respects with the minimum detail
requirements of the American Land Title Association as such requirements are in
effect on the date of preparation of such survey and (v) sufficient for the
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Title Company to remove all standard survey exceptions from the title insurance
policy (or commitment) relating to such Mortgaged Property and issue the
endorsements of the type required by Section 4.01(o)(iii) or (b) otherwise
acceptable to the Collateral Agent.
"SWINGLINE COMMITMENT" shall mean the commitment of the Swingline
Lender to make loans pursuant to Section 2.17, as the same may be reduced from
time to time pursuant to Section 2.07 or Section 2.17. The amount of the
Swingline Commitment shall be $15.0 million as of the Second Amendment
Effectiveness Date, but in no event shall exceed the Revolving Commitments.
"SWINGLINE EXPOSURE" shall mean at any time the aggregate principal
amount at such time of all outstanding Swingline Loans. The Swingline Exposure
of any Revolving Lender at any time shall equal its Pro Rata Percentage of the
aggregate Swingline Exposure at such time.
"SWINGLINE LENDER" shall have the meaning assigned to such term in
the preamble hereto.
"SWINGLINE LOAN" shall mean any loan made by the Swingline Lender
pursuant to Section 2.17.
"SYNDICATION AGENT" shall have the meaning assigned to such term in
the preamble hereto.
"TAX RETURN" shall mean all returns, statements, filings,
attachments and other documents or certifications required to be filed in
respect of Taxes.
"TAXES" shall mean (i) any and all present or future taxes, duties,
levies, imposts, assessments, deductions, withholdings or other similar charges
imposed by the U.S. Internal Revenue Service or any other taxing authority
(whether domestic or foreign and including any federal, state, U.S. possession,
county, local, provincial or foreign government or any subdivision or taxing
agency thereof), whether computed on a separate, consolidated, unitary, combined
or other basis and any and all liabilities (including interest, fines, penalties
or additions to tax) with respect to the foregoing, and (ii) any transferee,
successor, joint and several, contractual or other liability (including
liability pursuant to Treasury Regulation Section 1.1502-6 (or any similar
provision of state, local or non-U.S. law)) in respect of any item described in
clause (i).
"TERM BORROWING" shall mean a Borrowing comprised of Term Loans.
"TERM LOAN COMMITMENTS" shall mean the U.S. Term Loan Commitments
and the Canadian Term Loan Commitments.
"TERM LOAN LENDER" shall mean a Lender with a Term Loan Commitment
or an outstanding Term Loan.
"TERM LOAN MATURITY DATE" shall mean the date which is seven years
after the Original Closing Date or, if such date is not a Business Day, the
first Business Day thereafter.
"TERM LOAN REPAYMENT DATE" shall have the meaning assigned to such
term in Section 2.09(a).
"TERM LOANS" shall mean the U.S. Term Loans and the Canadian Term
Loans.
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"TEST PERIOD" shall mean, at any time, the four consecutive fiscal
quarters of U.S. Borrower then last ended (in each case taken as one accounting
period) for which financial statements have been or are required to be delivered
pursuant to Section 5.01(a) or (b).
"TITLE COMPANY" shall mean any title insurance company as shall be
retained by U.S. Borrower and reasonably acceptable to the Administrative Agent.
"TITLE POLICY" shall have the meaning assigned to such term in
Section 4.01(o)(iii).
"TOTAL LEVERAGE RATIO" shall mean, at any date of determination, the
ratio of Consolidated Indebtedness on such date to Consolidated EBITDA for the
Test Period then most recently ended.
"TRANSACTION DOCUMENTS" shall mean the Acquisition Documents, the
Senior Subordinated Note Documents and the Loan Documents.
"TRANSACTIONS" shall mean, collectively, the transactions to occur
on or prior to the Original Closing Date pursuant to the Transaction Documents,
including (a) the consummation of the Acquisition; (b) the execution, delivery
and performance of the Loan Documents and the initial borrowings hereunder; (c)
the Refinancing; (d) the Equity Financing; (e) the issuance of the Senior
Subordinated Notes; (f) the issuance of the Rollover Equity; and (g) the payment
of all fees and expenses to be paid on or prior to the Original Closing Date and
owing in connection with the foregoing.
"TRANSFERRED GUARANTOR" shall have the meaning assigned to such term
in Section 7.09.
"TYPE," when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBOR Rate or the
Alternate Base Rate.
"UCC" shall mean the Uniform Commercial Code as in effect from time
to time (except as otherwise specified) in any applicable state or jurisdiction.
"UNITED STATES" shall mean the United States of America.
"U.S. BORROWER" shall have the meaning assigned to such term in the
preamble hereto.
"U.S. BORROWING REQUEST" shall mean a request by U.S. Borrower in
accordance with the terms of Section 2.03 and substantially in the form of
Exhibit C-1, or such other form as shall be approved by the Administrative
Agent.
"U.S. COLLATERAL ACCOUNT" shall mean a collateral account or
sub-account established and maintained by the Collateral Agent for the benefit
of the U.S. Secured Parties, in accordance with the provisions of Section 9.01.
"U.S. GUARANTEED OBLIGATIONS" shall have the meaning assigned to
such term in Section 7.01.
"U.S. GUARANTORS" shall have the meaning assigned to such term in
Section 7.01.
"U.S. INTERCOMPANY NOTE" shall mean a promissory note substantially
in the form of Exhibit P-1.
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"U.S. LENDERS" shall mean (a) the financial institutions that have
become a party hereto pursuant to a Lender Addendum that make U.S. Loans or
provide Commitments to U.S. Borrower and (b) any financial institution that has
become a party hereto pursuant to an Assignment and Assumption that makes U.S.
Loans or provides a Commitment to U.S. Borrower, other than, in each case, any
such financial institution that has ceased to be a party hereto pursuant to an
Assignment and Assumption. Unless the context clearly indicates otherwise, the
term "U.S. Lenders" shall include the Swingline Lender.
"U.S. LOAN PARTIES" shall mean Parent, U.S. Borrower and the U.S.
Subsidiary Guarantors.
"U.S. LOANS" shall mean all Loans other than the Canadian Term
Loans.
"U.S. MORTGAGED PROPERTY" shall mean the Mortgaged Properties owned
or leased by the U.S. Loan Parties.
"U.S. OBLIGATIONS" shall mean (a) obligations of U.S. Borrower and
the other U.S. Loan Parties from time to time arising (including by way of
Article VII) under or in respect of the due and punctual payment of (i) the
principal of and premium, if any, and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the U.S. Loans, when and as due, whether at maturity, by acceleration, upon one
or more dates set for prepayment or otherwise, (ii) each payment required to be
made by U.S. Borrower and the other U.S. Loan Parties under this Agreement in
respect of any Letter of Credit, when and as due, including payments in respect
of Reimbursement Obligations, interest thereon and obligations to provide cash
collateral and (iii) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), of U.S. Borrower and the other
U.S. Loan Parties under this Agreement and the other Loan Documents, (b) the due
and punctual performance of all covenants, agreements, obligations and
liabilities of U.S. Borrower and the other U.S. Loan Parties under or pursuant
to this Agreement and the other Loan Documents, (c) the due and punctual payment
and performance of all obligations of U.S. Borrower and the other U.S. Loan
Parties under each Hedging Agreement relating to either the U.S. Loans or
foreign currency exchange rates entered into with any counterparty that was a
Lender or an Affiliate of a Lender at the time such Hedging Agreement was
entered into (provided that each shall provide that it terminates or expires
upon, or prior to, the repayment of all Loans hereunder) (each, a "Permitted
U.S. Hedging Agreement") and (d) the due and punctual payment and performance of
all obligations in respect of overdrafts and related liabilities owed to any
U.S. Lender, any Affiliate of a U.S. Lender, the Administrative Agent or the
Collateral Agent arising from treasury, depositary and cash management services
or in connection with any automated clearinghouse transfer of funds, in each
case, with respect to U.S. Loans.
"U.S. SECURED PARTIES" shall mean, collectively, the Administrative
Agent, the Collateral Agent, each other Agent, the U.S. Lenders and each party
to a Permitted U.S. Hedging Agreement if such person executes and delivers to
the Administrative Agent a letter agreement in form and substance reasonably
acceptable to the Administrative Agent pursuant to which such person (i)
appoints the Collateral Agent as its agent under the applicable Loan Documents
and (ii) agrees to be bound by the provisions of Sections 11.03 and 11.09.
"U.S. SECURITY AGREEMENT" shall mean a Security Agreement
substantially in the form of Exhibit M-1 among the U.S. Loan Parties and
Collateral Agent for the benefit of the Secured Parties.
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"U.S. SECURITY AGREEMENT COLLATERAL" shall mean all property pledged
or granted as collateral pursuant to the U.S. Security Agreement delivered on
the Original Closing Date or thereafter pursuant to Section 5.10.
"U.S. SECURITY DOCUMENTS" shall mean the U.S. Security Agreement,
the Mortgages entered into by the U.S. Loan Parties and each other security
document or pledge agreement delivered in accordance with applicable local or
foreign law to grant a valid, perfected security interest in any property as
collateral for the Obligations, and all UCC or other financing statements or
instruments of perfection required by this Agreement, the U.S. Security
Agreement, any Mortgage or any other such security document or pledge agreement
to be filed with respect to the security interests in property and fixtures
created pursuant to the U.S. Security Agreement or any Mortgage and any other
document or instrument utilized to pledge as collateral for the Obligations any
property.
"U.S. SUBSIDIARIES" shall mean all Subsidiaries of U.S. Borrower
other than Canadian Borrower and Canadian Subsidiaries.
"U.S. SUBSIDIARY GUARANTOR" shall mean each U.S. Subsidiary listed
on Schedule 1.01(f), and each other U.S. Subsidiary that is or becomes a party
to this Agreement pursuant to Section 5.10.
"U.S. TERM LOAN" shall mean the Additional U.S. Term Loans and the
Existing U.S. Term Loans.
"U.S. TERM LOAN LENDER" shall mean each Additional U.S. Term Loan
Lender and each Existing U.S. Term Loan Lender.
"VOTING STOCK" shall mean, with respect to any person, any class or
classes of Equity Interests pursuant to which the holders thereof have the
general voting power under ordinary circumstances to elect at least a majority
of the Board of Directors of such person.
"WHOLLY OWNED SUBSIDIARY" shall mean, as to any person, (a) any
corporation 100% of whose capital stock (other than directors' qualifying
shares) is at the time owned by such person and/or one or more Wholly Owned
Subsidiaries of such person and (b) any partnership, association, joint venture,
limited liability company or other entity in which such person and/or one or
more Wholly Owned Subsidiaries of such person have a 100% equity interest at
such time.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02 CLASSIFICATION OF LOANS AND BORROWINGS. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"REVOLVING LOAN") or by Type (e.g., a "EURODOLLAR LOAN") or by Class and Type
(e.g., a "EURODOLLAR REVOLVING LOAN"). Borrowings also may be classified and
referred to by Class (e.g., a "REVOLVING BORROWING," "BORROWING OF CANADIAN TERM
LOANS") or by Type (e.g., a "EURODOLLAR BORROWING") or by Class and Type (e.g.,
a "EURODOLLAR REVOLVING BORROWING").
SECTION 1.03 TERMS GENERALLY. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include," "includes" and "including" shall
be deemed to be followed by the phrase "without limitation." The word
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"will" shall be construed to have the same meaning and effect as the word
"shall." Unless the context requires otherwise (a) any definition of or
reference to any Loan Document, agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document
as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any person shall be construed to include such
person's successors and assigns, (c) the words "herein," "hereof" and
"hereunder," and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof and (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement, unless otherwise indicated.
SECTION 1.04 ACCOUNTING TERMS; GAAP. Except as otherwise expressly
provided herein, all financial statements to be delivered pursuant to this
Agreement shall be prepared in accordance with GAAP as in effect from time to
time and all terms of an accounting or financial nature shall be construed and
interpreted in accordance with GAAP, as in effect on the Second Amendment
Effectiveness Date unless otherwise agreed to by U.S. Borrower and the Required
Lenders.
SECTION 1.05 RESOLUTION OF DRAFTING AMBIGUITIES. Each Loan Party
acknowledges and agrees that it was represented by counsel in connection with
the execution and delivery of the Loan Documents to which it is a party, that it
and its counsel reviewed and participated in the preparation and negotiation
hereof and thereof and that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation hereof or thereof.
ARTICLE II
THE CREDITS
SECTION 2.01 COMMITMENTS. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly:
(a) to make an Existing U.S. Term Loan to U.S. Borrower on the
Original Closing Date in the principal amount not to exceed its Existing
U.S. Term Loan Commitment on the Original Closing Date; and
(b) to make a Canadian Term Loan to Canadian Borrower on the
Original Closing Date in the principal amount not to exceed its Canadian
Term Loan Commitment; and
(c) to make Revolving Loans to U.S. Borrower, at any time and from
time to time on or after the Original Closing Date until the earlier of
the Revolving Maturity Date and the termination of the Revolving
Commitment of such Lender in accordance with the terms hereof, in an
aggregate principal amount at any time outstanding that will not result in
such Lender's Revolving Exposure exceeding such Lender's Revolving
Commitment; provided that U.S. Borrower may only borrow $2.7 million of
Revolving Loans on the Original Closing Date; provided further, that U.S.
Borrower may only borrow an amount of additional Revolving Loans on the
Second Amendment Effectiveness Date such that the aggregate amount of
Revolving Loans outstanding on the Second Amendment Effectiveness Date
does not exceed $15.0 million;
(d) to make an Existing U.S. Term Loan to U.S. Borrower on the First
Amendment Effectiveness Date in the principal amount not to exceed its
Existing U.S. Term Loan Commitment on the First Amendment Effectiveness
Date; and
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(e) to make an Additional U.S. Term Loan to U.S. Borrower on the
Second Amendment Effectiveness Date in the principal amount not to exceed
its Additional U.S. Term Loan Commitment on the Second Amendment
Effectiveness Date.
Amounts paid or prepaid in respect of Term Loans may not be
reborrowed. Within the limits set forth in clause (b) above and subject to the
terms, conditions and limitations set forth herein, U.S. Borrower may borrow,
pay or prepay and reborrow Revolving Loans.
SECTION 2.02 LOANS.
(a) Each Loan (other than Swingline Loans) shall be made as part of
a Borrowing consisting of Loans made by the Lenders ratably in accordance with
their applicable Commitments; provided that the failure of any Lender to make
any Loan shall not in itself relieve any other Lender of its obligation to lend
hereunder (it being understood, however, that no Lender shall be responsible for
the failure of any other Lender to make any Loan required to be made by such
other Lender). Except for Loans deemed made pursuant to Section 2.18(e)(ii), (x)
ABR Loans comprising any Borrowing shall be in an aggregate principal amount
that is (i) an integral multiple of $500,000 and not less than $2.5 million or
(ii) equal to the remaining available balance of the applicable Commitments and
(y) the Eurodollar Loans comprising any Borrowing shall be in an aggregate
principal amount that is (i) an integral multiple of $500,000 and not less than
$2.5 million or (ii) equal to the remaining available balance of the applicable
Commitments.
(b) Subject to Sections 2.11 and 2.12, each Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the applicable Borrower
may request pursuant to Section 2.03. Each Lender may at its option make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of the applicable Borrower to repay such Loan in
accordance with the terms of this Agreement. Borrowings of more than one Type
may be outstanding at the same time; provided that the Borrowers shall not be
entitled to request any Borrowing that, if made, would result in more than ten
Eurodollar Borrowings outstanding hereunder at any one time. For purposes of the
foregoing, Borrowings having different Interest Periods, regardless of whether
they commence on the same date, shall be considered separate Borrowings.
(c) Except with respect to Loans made pursuant to Section
2.18(e)(ii), each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds to such
account in New York City as the Administrative Agent may designate not later
than 12:00 noon, New York City time, and the Administrative Agent shall promptly
credit the amounts so received to an account as directed by U.S. Borrower in the
applicable U.S. Borrowing Request maintained with the Administrative Agent or,
if a Borrowing shall not occur on such date because any condition precedent
herein specified shall not have been met, return the amounts so received to the
respective Lenders.
(d) Unless the Administrative Agent shall have received notice from
a Lender prior to 11:00 a.m. on the date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above, and the Administrative Agent may, in
reliance upon such assumption, make available to the applicable Borrower on such
date a corresponding amount. If the Administrative Agent shall have so made
funds available, then, to the extent that such Lender shall not have made such
portion available to the Administrative Agent, each of such Lender and such
Borrower severally agrees to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest
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thereon, for each day from the date such amount is made available to such
Borrower until the date such amount is repaid to the Administrative Agent at (i)
in the case of either Borrower, the interest rate applicable at the time to the
Loans comprising such Borrowing and (ii) in the case of such Lender, the greater
of the Federal Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation. If
such Lender shall repay to the Administrative Agent such corresponding amount,
such amount shall constitute such Lender's Loan as part of such Borrowing for
purposes of this Agreement, and such Borrower's obligation to repay the
Administrative Agent such corresponding amount pursuant to this Section 2.02(d)
shall cease.
(e) Notwithstanding any other provision of this Agreement, the
Borrowers shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Revolving Maturity Date or Term Loan Maturity Date, as applicable.
SECTION 2.03 BORROWING PROCEDURE. To request a Revolving Borrowing
or Term Borrowing, the applicable Borrower shall deliver, by hand delivery or
telecopy, a duly completed and executed Borrowing Request to the Administrative
Agent (i) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of the proposed Borrowing or
(ii) in the case of an ABR Borrowing, not later than 10:00 a.m., New York City
time, on the date of the proposed Borrowing. Each Borrowing Request shall be
irrevocable and shall specify the following information in compliance with
Section 2.02:
(a) whether the requested Borrowing is to be a Borrowing of
Revolving Loans, U.S. Term Loans or Canadian Term Loans;
(b) the aggregate amount of such Borrowing;
(c) the date of such Borrowing, which shall be a Business Day;
(d) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(e) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; provided that until the
earlier of (x) the date on which the Syndication Agent shall have notified
U.S. Borrower that a Successful Syndication has been achieved and (y) 60
days after the Second Amendment Effectiveness Date, the Interest Period
for any Additional U.S. Term Loans shall be seven days;
(f) the location and number of the applicable Borrower's account to
which funds are to be disbursed, which shall comply with the requirements
of Section 2.02(c); and
(g) that the conditions set forth in Sections 4.02(b) through (d)
have been satisfied as of the date of the notice.
If no election as to the Type of Borrowing is specified, then the
requested Borrowing shall be an ABR Borrowing. If no Interest Period is
specified with respect to any requested Eurodollar Revolving Borrowing, then the
applicable Borrower shall be deemed to have selected an Interest Period of one
month's duration (subject to the proviso in clause (e) above). Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
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SECTION 2.04 EVIDENCE OF DEBT; REPAYMENT OF LOANS.
(a) U.S. Borrower hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each U.S. Term Loan Lender, the
principal amount of each U.S. Term Loan of such U.S. Term Loan Lender as
provided in Section 2.09, (ii) to the Administrative Agent for the account of
each Revolving Lender, the then unpaid principal amount of each Revolving Loan
of such Revolving Lender on the Revolving Maturity Date and (iii) to the
Swingline Lender, the then unpaid principal amount of each Swingline Loan on the
earlier of the Revolving Maturity Date and the first date after such Swingline
Loan is made that is the 15th or last day of a calendar month and is at least
two Business Days after such Swingline Loan is made; provided that on each date
that a Revolving Borrowing is made, U.S. Borrower shall repay all Swingline
Loans that were outstanding on the date such Borrowing was requested.
(b) Canadian Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Canadian Term Loan Lender, the
principal amount of each Canadian Term Loan of such Canadian Term Loan Lender as
provided in Section 2.09.
(c) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrowers to such
Lender resulting from each Loan made by such Lender from time to time, including
the amounts of principal and interest payable and paid to such Lender from time
to time under this Agreement.
(d) The Administrative Agent shall maintain accounts in which it
will record (i) the amount of each Loan made hereunder, the Type and Class
thereof and the Interest Period applicable thereto; (ii) the amount of any
principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder; and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(e) The entries made in the accounts maintained pursuant to
paragraphs (c) and (d) above shall be prima facie evidence of the existence and
amounts of the obligations therein recorded; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligations of the Borrowers to repay
the Loans in accordance with their terms.
(f) Any Lender by written notice to the applicable Borrower (with a
copy to the Administrative Agent) may request that Loans of any Class made by it
be evidenced by a promissory note. In such event, the applicable Borrower shall
prepare, execute and deliver to such Lender a promissory note payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) in the form of Exhibit K-I, K-2, K-3, K-4 or K-5, as the
case may be. Thereafter, the Loans evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant to
Section 11.04) be represented by one or more promissory notes in such form
payable to the order of the payee named therein (or, if such promissory note is
a registered note, to such payee and its registered assigns).
SECTION 2.05 FEES.
(a) Commitment Fee. Each Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee (a
"COMMITMENT FEE") equal to the Applicable Fee per annum on the average daily
unused amount of each Commitment of such Lender to such Borrower during the
period from and including the Original Closing Date to but excluding the date on
which such Commitment terminates. Accrued Commitment Fees shall be payable in
arrears (A) on the last Business Day
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of March, June, September and December of each year, commencing on the first
such date to occur after the Original Closing Date, and (B) on the date on which
such Commitment terminates. Commitment Fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). For purposes of computing
Commitment Fees with respect to Revolving Commitments, a Revolving Commitment of
a Lender shall be deemed to be used to the extent of the outstanding Revolving
Loans and LC Exposure of such Lender (and the Swingline Exposure of such Lender
shall be disregarded for such purpose).
(b) Administrative Agent Fees. U.S. Borrower agrees to pay to the
Administrative Agent, for its own account, the administrative fees set forth in
the Fee Letter or such other fees payable in the amounts and at the times
separately agreed upon between U.S. Borrower and the Administrative Agent (the
"ADMINISTRATIVE AGENT FEES").
(c) LC and Fronting Fees. U.S. Borrower agrees to pay (i) to the
Administrative Agent for the account of each Revolving Lender a participation
fee ("LC PARTICIPATION FEE") with respect to its participations in Letters of
Credit, which shall accrue at a rate equal to the Applicable Margin from time to
time used to determine the interest rate on Eurodollar Revolving Loans pursuant
to Section 2.06 on the daily amount of such Lender's LC Exposure (excluding any
portion thereof attributable to Reimbursement Obligations) during the period
from and including the later of the Original Closing Date and the date on which
such fee was last paid to and including the later of the date on which such
Lender's Revolving Commitment terminates and the date on which such Lender
ceases to have any LC Exposure, and (ii) to the Issuing Bank a fronting fee
("FRONTING FEE"), which shall accrue at the rate of 0.25% per annum on the
average daily amount of the LC Exposure (excluding any portion thereof
attributable to Reimbursement Obligations) during the period from and including
the later of the Original Closing Date and the date on which such fee was last
paid to and including the later of the date of termination of the Revolving
Commitments and the date on which there ceases to be any LC Exposure, as well as
the Issuing Bank's customary fees with respect to the issuance, amendment,
renewal or extension of any Letter of Credit or processing of drawings
thereunder. Accrued LC Participation Fees and Fronting Fees shall be payable in
arrears (i) on the last Business Day of March, June, September and December of
each year, commencing on the first such date to occur after the Original Closing
Date, and (ii) on the date on which the Revolving Commitments terminate. Any
such fees accruing after the date on which the Revolving Commitments terminate
shall be payable on demand. Any other fees payable to the Issuing Bank pursuant
to this paragraph shall be payable within 10 days after demand therefor. All LC
Participation Fees and Fronting Fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(d) All Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, if and as
appropriate, among the Lenders, except that U.S. Borrower shall pay the Fronting
Fees directly to the Issuing Bank. Once paid, none of the Fees shall be
refundable under any circumstances.
SECTION 2.06 INTEREST ON LOANS.
(a) Subject to the provisions of Section 2.06(c), the Loans
comprising each ABR Borrowing, including each Swingline Loan, shall bear
interest at a rate per annum equal to the Alternate Base Rate plus the
Applicable Margin in effect from time to time.
(b) Subject to the provisions of Section 2.06(c), the Loans
comprising each Eurodollar Borrowing shall bear interest at a rate per annum
equal to the Adjusted LIBOR Rate for the Interest Period in effect for such
Borrowing plus the Applicable Margin in effect from time to time.
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(c) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any fee or other amount payable by either Borrower hereunder is
not paid when due, whether at stated maturity, upon acceleration or otherwise,
such overdue amount shall, to the extent permitted by applicable law, bear
interest, after as well as before judgment, at a rate per annum equal to (i) in
the case of overdue principal and premium, if any, of or interest on any Loan,
2% plus the rate otherwise applicable to such Loan as provided in the preceding
paragraphs of this Section 2.06 or (ii) in the case of any other amount, 2% plus
the rate applicable to ABR Revolving Loans as provided in Section 2.06(a) (in
either case, the "DEFAULT RATE").
(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan; provided that (i) interest accrued
pursuant to Section 2.06(c) shall be payable on demand, (ii) in the event of any
repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving
Loan or a Swingline Loan), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii)
in the event of any conversion of any Eurodollar Loan prior to the end of the
current Interest Period therefor, accrued interest on such Loan shall be payable
on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Alternate
Base Rate or Adjusted LIBOR Rate shall be determined by the Administrative Agent
in accordance with the provisions of this Agreement and such determination shall
be conclusive absent manifest error.
(f) For purposes of the Interest Act (Canada), whenever interest
payable pursuant to this Agreement is calculated with respect to any monetary
Obligation relating to the Canadian Term Loans on the basis of a period other
than a calendar year (the "CALCULATION PERIOD"), each rate of interest
determined pursuant to such calculation expressed as an annual rate is
equivalent to such rate as so determined, multiplied by the actual number of
days in the calendar year in which the same is to be ascertained and divided by
the number of days in the Calculation Period.
(g) The principle of deemed reinvestment of interest with respect to
any monetary Obligation relating to the Canadian Term Loans shall not apply to
any interest calculation under this Agreement.
(h) The rates of interest with respect to any monetary Obligation
relating to the Canadian Term Loans stipulated in this Agreement are intended to
be nominal rates and not effective rates or yields.
SECTION 2.07 TERMINATION AND REDUCTION OF COMMITMENTS.
(a) The Additional U.S. Term Loan Commitments shall automatically
terminate at 5:00 p.m., New York City time, on the Second Amendment
Effectiveness Date; all other Term Loan Commitments have already terminated. The
Revolving Commitments, the Swingline Commitment and the LC Commitment shall
automatically terminate on the Revolving Maturity Date.
(b) At its option, the applicable Borrower may at any time
terminate, or from time to time permanently reduce, the Commitments of any
Class; provided that (i) each reduction of the Commitments of any Class shall be
in an amount that is an integral multiple of $1.0 million and not less than $5.0
million and (ii) the Revolving Commitments shall not be terminated or reduced
if, after giving effect
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to any concurrent prepayment of the Revolving Loans in accordance with Section
2.10, the aggregate amount of Revolving Exposures would exceed the aggregate
amount of Revolving Commitments.
(c) The applicable Borrower shall notify the Administrative Agent in
writing of any election to terminate or reduce the Commitments under Section
2.07(b) at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by a
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Commitments delivered by a Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by a Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments of
any Class shall be permanent. Each reduction of the Commitments of any Class
shall be made ratably among the Lenders in accordance with their respective
Commitments of such Class.
(d) The LC Commitment shall automatically be reduced on a dollar for
dollar basis by the face amount of letters of credit terminated in connection
with any Permitted Sale and Leaseback Transaction one Business Day after the
receipt of such proceeds; provided that the LC Commitment shall not be reduced
below $20.0 million pursuant to this Section 2.07(d).
SECTION 2.08 INTEREST ELECTIONS.
(a) Each Revolving Borrowing and Term Borrowing initially shall be
of the Type specified in the applicable Borrowing Request and, in the case of a
Eurodollar Borrowing, shall have an initial Interest Period as specified in such
Borrowing Request. Thereafter, the applicable Borrower may elect to convert such
Borrowing to a different Type or to continue such Borrowing and, in the case of
a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in
this Section. The Borrowers may elect different options with respect to
different portions of the affected Borrowing, in which case each such portion
shall be allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing. Notwithstanding anything to the contrary, the Borrowers
shall not be entitled to request any conversion or continuation that, if made,
would result in more than ten Eurodollar Borrowings outstanding hereunder at any
one time. This Section shall not apply to Swingline Borrowings, which may not be
converted or continued. Any interest or conversion election pursuant to this
Agreement does not constitute a new Borrowing but simply an adjustment of the
basis on which interest payable to the applicable Lenders will be calculated.
(b) To make an election pursuant to this Section, the applicable
Borrower shall deliver, by hand delivery or telecopy, a duly completed and
executed Interest Election Request to the Administrative Agent not later than
the time that a Borrowing Request would be required under Section 2.03 if such
Borrower were requesting a Revolving Borrowing or Term Borrowing of the Type
resulting from such election to be made on the effective date of such election.
Each Interest Election Request shall be irrevocable.
(c) Each Interest Election Request shall specify the following
information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, or if outstanding Borrowings are being combined,
allocation to each resulting Borrowing (in which case the information to
be specified pursuant to clauses (iii) and (iv) below shall be specified
for each resulting Borrowing);
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(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period"; provided that until the earlier of (x) the date on
which the Syndication Agent shall have notified U.S. Borrower that a
Successful Syndication has been achieved and (y) 60 days after the Second
Amendment Effectiveness Date, the Interest Period for Additional U.S. Term
Loans shall be seven days.
If any such Interest Election Request requests a Eurodollar
Borrowing but does not specify an Interest Period, then the applicable Borrower
shall be deemed to have selected an Interest Period of one month's duration
(subject to the proviso in clause (iv) above).
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If an Interest Election Request with respect to a Eurodollar
Borrowing is not timely delivered prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein, at
the end of such Interest Period such Borrowing shall be converted to an ABR
Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing, the Administrative Agent or the Required Lenders
may require, by notice to U.S. Borrower, that (i) no outstanding Borrowing may
be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid,
each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of
the Interest Period applicable thereto.
SECTION 2.09 AMORTIZATION OF TERM BORROWINGS.
(a) U.S. Borrower shall pay to the Administrative Agent, for the
account of the applicable U.S. Term Loan Lenders, on the dates set forth on
Annex II, or if any such date is not a Business Day, on the immediately
preceding Business Day (each such date, a "TERM LOAN REPAYMENT DATE"), a
principal amount of the U.S. Term Loans equal to the amount set forth on Annex
II for such date (as adjusted from time to time pursuant to Section 2.10(h)),
together in each case with accrued and unpaid interest on the principal amount
to be paid to but excluding the date of such payment.
(b) Canadian Borrower shall pay to the Administrative Agent, for the
account of the Canadian Term Loan Lenders, on the Term Loan Repayment Dates, a
principal amount of the Canadian Term Loans equal to the amount set forth on
Annex II for such date (as adjusted from time to time pursuant to Section
2.10(h)), together in each case with accrued and unpaid interest on the
principal amount to be paid to but excluding the date of such payment.
(c) To the extent not previously paid, all Term Loans shall be due
and payable on the Term Loan Maturity Date.
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SECTION 2.10 OPTIONAL AND MANDATORY PREPAYMENTS OF LOANS AND
MANDATORY OFFERS TO REDEEM.
(a) Optional Prepayments. Each Borrower shall have the right at any
time and from time to time to prepay any Borrowing made by such Borrower, in
whole or in part, subject to the requirements of this Section 2.10; provided
that each partial prepayment shall be in an amount that is an integral multiple
of $500,000 and not less than $2.5 million.
(b) Revolving Loan Prepayments.
(i) In the event of the termination of all the Revolving
Commitments, U.S. Borrower shall, on the date of such termination, repay or
prepay all its outstanding Revolving Borrowings and all outstanding Swingline
Loans and replace all outstanding Letters of Credit or cash collateralize all
outstanding Letter of Credit in accordance with the procedures set forth in
Section 2.18(i).
(ii) In the event of any partial reduction of the Revolving
Commitments, then (x) at or prior to the effective date of such reduction, the
Administrative Agent shall notify U.S. Borrower and the Revolving Lenders of the
sum of the Revolving Exposures after giving effect thereto and (y) if the sum of
the Revolving Exposures would exceed the aggregate amount of Revolving
Commitments after giving effect to such reduction, then U.S. Borrower shall, on
the date of such reduction, first, repay or prepay Swingline Loans, second,
repay or prepay Revolving Borrowings and third, replace outstanding Letters of
Credit or cash collateralize outstanding Letters of Credit in accordance with
the procedures set forth in Section 2.18(i), in an aggregate amount sufficient
to eliminate such excess.
(iii) In the event that the sum of all Lenders' Revolving Exposures
exceeds the Revolving Commitments then in effect, U.S. Borrower shall, without
notice or demand, immediately first, repay or prepay Revolving Borrowings, and
second, replace outstanding Letters of Credit or cash collateralize outstanding
Letters of Credit in accordance with the procedures set forth in Section
2.18(i), in an aggregate amount sufficient to eliminate such excess.
(iv) In the event that the aggregate LC Exposure exceeds the LC
Commitment then in effect, U.S. Borrower shall, without notice or demand,
immediately replace outstanding Letters of Credit or cash collateralize
outstanding Letters of Credit in accordance with the procedures set forth in
Section 2.18(i), in an aggregate amount sufficient to eliminate such excess.
(c) Asset Sales. (I) Not later than three Business Days following
the receipt of any Net Cash Proceeds from an Asset Sale pursuant to Section
6.06(h), U.S. Borrower shall make an Offer to Redeem the maximum principal
amount of Borrowings that may be redeemed by applying an amount equal to 100% of
such Net Cash Proceeds to such Offer to Redeem in accordance with Sections
2.10(h), (i) and (j); provided that in the case of an Asset Sale pursuant to
Section 6.06(h)(X) (i) notwithstanding anything to the contrary in Section
2.10(h) such amount shall first be applied to redeem the Canadian Term Loans on
behalf of the Canadian Borrower and (ii) any such amount remaining after the
redemption in full of the Canadian Term Loans shall be applied in accordance
with Section 2.10(c)(II).
(II) Not later than three Business Days following the receipt of any
Net Cash Proceeds of any Asset Sale (other than a Permitted Sale and Leaseback
Transaction or an Asset Sale pursuant to Section 6.06(h)) by Parent, U.S.
Borrower or any U.S. Subsidiary, U.S. Borrower shall make an Offer to Redeem the
maximum principal amount of Borrowings that may be redeemed by applying an
amount equal to 100% of such Net Cash Proceeds to make redemptions in accordance
with Sections 2.10(h), (i) and (j); and not later than one Business Day
following the receipt of any Net Cash Proceeds of any Asset Sale (other than a
Permitted Sale and Leaseback Transaction) by Canadian Borrower or any Canadian
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Subsidiary, the Borrowers shall make an Offer to Redeem the maximum principal
amount of Borrowings that may be redeemed by applying an amount equal to 100% of
such Net Cash Proceeds to make redemptions in accordance with Sections 2.10(h),
(i) and (j); provided, in each case, that:
(i) so long as no Default shall then exist or would arise therefrom,
no such Offer to Redeem shall be required under this Section
2.10(c)(II)(i) with respect to (A) any Asset Sale permitted by Section
6.06(a), (B) the disposition of property which constitutes a Casualty
Event, or (C) Asset Sales for fair market value resulting in no more than
$500,000 in Net Cash Proceeds per Asset Sale (or series of related Asset
Sales) and less than $3.0 million in Net Cash Proceeds in any fiscal year;
provided that clause (C) shall not apply in the case of any Asset Sale
described in clause (b) of the definition thereof or to an Asset Sale
pursuant to Section 6.06(h); and
(ii) so long as no Default shall then exist or would arise therefrom
and the aggregate of Net Cash Proceeds of Asset Sales shall not exceed
$30.0 million in any fiscal year of U.S. Borrower (not including for
purposes of this limit only, Net Cash Proceeds of Permitted Sale and
Leaseback Transactions or an Asset Sale pursuant to Section 6.06(h)), no
Offer to Redeem shall be required on such date to the extent that (A) U.S.
Borrower shall have delivered an Officers' Certificate to the
Administrative Agent on or prior to such date stating that such Net Cash
Proceeds are expected to be reinvested in fixed or capital assets within
365 days following the date of such Asset Sale (which Officers'
Certificate shall set forth the estimates of the proceeds to be so
expended); and (B) all Net Cash Proceeds in respect of all Asset Sales
(other than those referred to in clause (C) of Section 2.10(c)(II)(i)) in
excess of $15.0 million in the aggregate at any time shall be held in the
applicable Collateral Account and released therefrom only in accordance
with the provisions of Article IX; provided that if all or any portion of
such Net Cash Proceeds is not so reinvested within such 365-day period,
such unused portion shall be applied to make an Offer to Redeem on the
last day of such period as provided in this Section 2.10(c)(II); and
provided, further, that if the property subject to such Asset Sale
constituted Collateral, then all property purchased with the Net Cash
Proceeds thereof pursuant to this subsection shall be made subject to the
Lien of the applicable Security Documents in favor of the Collateral
Agent, for its benefit and for the benefit of the other Secured Parties in
accordance with Sections 5.10 and 5.11.
(d) Debt Issuance. Not later than one Business Day following the
receipt of any Net Cash Proceeds of any Debt Issuance by Parent, U.S. Borrower
or any of its U.S. Subsidiaries, U.S. Borrower shall make an Offer to Redeem the
maximum principal amount of Borrowings that may be redeemed by applying an
amount equal to 100% of such Net Cash Proceeds to make redemptions in accordance
with Sections 2.10(h), (i) and (j). Not later than one Business Day following
the receipt of any Net Cash Proceeds of any Debt Issuance by Canadian Borrower
or any Canadian Subsidiary, the Borrowers, shall make an Offer to Redeem the
maximum principal amount of Borrowings that may be redeemed by applying an
amount equal to 100% of such Net Cash Proceeds to make redemptions in accordance
with Sections 2.10(h) , (i) and (j).
(e) Equity Issuance or Preferred Stock Issuance. Not later than one
Business Day following the receipt of any Net Cash Proceeds of any Equity
Issuance, U.S. Borrower shall apply an amount equal to 50% of such Net Cash
Proceeds to make prepayments in accordance with Sections 2.10(h) and (i). Not
later than one Business Day following the receipt of any Net Cash Proceeds of
any Preferred Stock Issuance by Holdings, Parent, U.S. Borrower or any of its
U.S. Subsidiaries, U.S. Borrower shall apply an amount equal to 100% of such Net
Cash Proceeds to make prepayments in accordance with Sections 2.10(h) and (i).
(f) Casualty Events. Not later than one Business Day following the
receipt of any Net Cash Proceeds from a Casualty Event by Parent, U.S. Borrower
or any of its U.S. Subsidiaries, U.S.
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Borrower shall make an Offer to Redeem the maximum principal amount of
Borrowings that may be redeemed by applying an amount equal to 100% of such Net
Cash Proceeds to make redemptions in accordance with Sections 2.10(h), (i) and
(j); and not later than one Business Day following the receipt of any Net Cash
Proceeds from a Casualty Event by Canadian Borrower or any Canadian Subsidiary,
the Borrowers, shall make an Offer to Redeem the maximum principal amount of
Borrowings that may be redeemed by applying an amount equal to 100% of such Net
Cash Proceeds to make redemptions in accordance with Sections 2.10(h), (i) and
(j); provided, in each case, that:
(i) so long as no Default shall then exist or arise therefrom, no
Offer to Redeem shall be required on such date to the extent that U.S.
Borrower shall have delivered an Officers' Certificate to the
Administrative Agent on or prior to such date stating that such proceeds
are expected to be used to repair, replace or restore any property in
respect of which such Net Cash Proceeds were paid or to invest in other
fixed or capital assets, no later than 365 days (or such longer period as
may be approved by the Administrative Agent) following the date of receipt
of such proceeds; provided that if the property subject to such Casualty
Event constituted Collateral under the Security Documents, then all
property purchased with the Net Cash Proceeds thereof pursuant to this
subsection shall be made subject to the Lien of the applicable Security
Documents in favor of the Collateral Agent, for its benefit and for the
benefit of the other Secured Parties in accordance with Sections 5.10 and
5.11;
(ii) all Net Cash Proceeds in respect of all Casualty Events in
excess of $15.0 million in the aggregate shall be held in the applicable
Collateral Account and released therefrom only in accordance with the
provisions of Article IX; and
(iii) if any portion of such Net Cash Proceeds shall not be so
applied within such 365-day (or longer) period, such unused portion shall
be applied to make an Offer to Redeem on the last day of such period as
provided in this Section 2.10(f).
(g) Excess Cash Flow. No later than the earlier of (i) 90 days after
the end of each Excess Cash Flow Period and (ii) the date on which the financial
statements with respect to such fiscal year in which such Excess Cash Flow
Period occurs are delivered pursuant to Section 5.01(a), U.S. Borrower shall
make prepayments in accordance with Sections 2.10(h) and (i) in an aggregate
amount equal to the excess of (x) 50% of Excess Cash Flow for the Excess Cash
Flow Period then ended less (y) any voluntary prepayments of Term Loans and any
permanent voluntary reductions to the Revolving Commitments to the extent that
an equal amount of the Revolving Loans simultaneously is repaid, in each case so
long as such amounts are not already reflected in Debt Service, during such
Excess Cash Flow Period; provided that only 25% of Excess Cash Flow for the
Excess Cash Flow Period then ended need be applied pursuant to this Section
2.10(g) if the Senior Leverage Ratio is less than 1.5:1.0 as of the end of such
Excess Cash Flow Period.
(h) Application of Prepayments and Redemptions.
(i) Prior to any optional (subject to Section 2.10(a)) or mandatory
prepayment or redemption pursuant to any Offer to Redeem hereunder, the
applicable Borrower shall select the Borrowing or Borrowings to be prepaid or
redeemed and shall specify such selection in the notice of such prepayment or
Offer to Redeem pursuant to Section 2.10(i), subject to the provisions of this
Section 2.10(h). Subject to Section 2.10(h)(iii), any prepayments or redemptions
of Term Loans pursuant to Section 2.10(a), (c), (d), (e), (f) or (g) shall be
applied to reduce scheduled prepayments required under Sections 2.09(a) and (b)
on a pro rata basis among the prepayments remaining to be made on each Term Loan
Repayment Date and shall be applied, in the case of prepayments or redemptions
to be made solely by U.S. Borrower, first, to U.S. Term Loans (on a pro rata
basis between Existing U.S. Term Loans and
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Additional U.S. Term Loans) and second if all U.S. Term Loans have been repaid,
to Canadian Term Loans on behalf of Canadian Borrower, and, in the case of
prepayments or redemptions by the Borrowers, first, by Canadian Borrower to
Canadian Term Loans and second, if all Canadian Term Loans have been repaid, by
U.S. Borrower to U.S. Term Loans (on a pro rata basis between Existing U.S. Term
Loans and Additional U.S. Term Loans). After application of redemptions and
mandatory prepayments described above in this Section 2.10(h) and to the extent
there are redemption or mandatory prepayment amounts remaining after such
application, the Revolving Commitments shall be permanently reduced ratably
among the Revolving Lenders in accordance with their applicable Revolving
Commitments in an aggregate amount equal to such excess, and U.S. Borrower shall
comply with Section 2.10(b).
(ii) Amounts to be applied pursuant to this Section 2.10 to the
prepayment or redemption of Term Loans and Revolving Loans shall be applied, as
applicable, first to reduce outstanding ABR Term Loans and ABR Revolving Loans,
respectively. Any amounts remaining after each such application shall be applied
to prepay or redeem Eurodollar Term Loans or Eurodollar Revolving Loans, as
applicable. Notwithstanding the foregoing, if the amount of any prepayment of
Loans required under this Section 2.10 shall be in excess of the amount of the
ABR Loans at the time outstanding (an "EXCESS AMOUNT"), only the portion of the
amount of such prepayment or redemption as is equal to the amount of such
outstanding ABR Loans shall be immediately prepaid or redeemed and, at the
election of the applicable Borrower, the balance of such required prepayment
shall be either (A) deposited in the applicable Collateral Account and applied
to the prepayment or redemption of Eurodollar Loans on the last day of the then
next-expiring Interest Period for Eurodollar Loans; provided that (i) interest
in respect of such Excess Amount shall continue to accrue thereon at the rate
provided hereunder for the Loans which such Excess Amount is intended to repay
until such Excess Amount shall have been used in full to repay such Loans and
(ii) at any time while a Default has occurred and is continuing, the
Administrative Agent may, and upon written direction from the Required Lenders
shall, apply any or all proceeds then on deposit in either Collateral Account to
the payment of such Loans in an amount equal to such Excess Amount or (B)
prepaid immediately, together with any amounts owing to the Lenders under
Section 2.13.
(iii) Notwithstanding Sections 2.10(e) and 2.10(g), the aggregate
amount of all prepayments by the Borrowers with respect to each Canadian Term
Loan pursuant to Sections 2.10(e) and 2.10(g) and Section 2.09 as in effect on
the Original Closing Date within the first five years following the Original
Closing Date shall not exceed 25% of the initial principal amount of that
Canadian Term Loan, except for payments required as a result of an acceleration
of the Obligations of the Borrowers pursuant to Article VIII. For greater
certainty and notwithstanding any other provision of this Agreement, the failure
of the Borrowers to make any prepayment of the Canadian Term Loans contemplated
in Sections 2.10(e) and 2.10(g) or Section 2.09 solely as a consequence of the
immediately preceding sentence shall not constitute a Default. Nothing in this
Section 2.10(h)(iii) shall affect prepayments of U.S. Loans pursuant to Sections
2.10(e) and 2.10(g) or Section 2.09.
(i) Notice of Prepayment or Offer to Redeem. The applicable Borrower
shall notify the Administrative Agent (and, in the case of prepayment of a
Swingline Loan, the Swingline Lender) by written notice of any prepayment or
Offer to Redeem hereunder (i) in the case of prepayment of a Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, three Business Days
before the date of prepayment, (ii) in the case of prepayment of an ABR
Borrowing, not later than 11:00 a.m., New York City time, one Business Day
before the date of prepayment, (iii) in the case of prepayment of a Swingline
Loan, not later than 11:00 a.m., New York City time, on the date of prepayment
and (iv) in the case of an Offer to Redeem, five Business Days prior to the
proposed date of redemption. Each such notice shall be irrevocable; provided
that, if a notice of prepayment is given in connection with a conditional notice
of termination of the Commitments as contemplated by Section 2.07, then such
notice of prepayment may be revoked if such termination is revoked in accordance
with Section 2.07. Each such notice shall specify the prepayment or redemption
date, the principal amount of each Borrowing or portion thereof to be pre-
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paid or redeemed and, in the case of a mandatory prepayment or Offer to Redeem,
a reasonably detailed calculation of the amount of such prepayment. Promptly
following receipt of any such notice (other than a notice relating solely to
Swingline Loans), the Administrative Agent shall advise the Lenders of the
contents thereof. Such notice to the Lenders may be by electronic communication.
Each partial prepayment or Offer to Redeem of any Borrowing shall be in an
amount that would be permitted in the case of a Credit Extension of the same
Type as provided in Section 2.02, except as necessary to apply fully the
required amount of a mandatory prepayment. Each prepayment or Offer to Redeem of
a Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing and otherwise in accordance with this Section 2.10. Prepayments and
Offers to Redeem shall be accompanied by accrued interest to the extent required
by Section 2.06. The Administrative Agent shall advise the applicable Borrower
if an Offer to Redeem is accepted or declined by the Lenders on the Business Day
prior to the proposed redemption date. If an Offer to Redeem is declined all
funds that were to be used to redeem Borrowings shall revert to the applicable
Borrower.
(j) Mandatory Offers to Redeem. When required by Sections 2.10(c),
(d) and (f), each Borrower shall make an offer to redeem Borrowings made by the
Borrowers in accordance with the terms of Section 2.10(i), which offer may be
accepted or declined by the Lenders in accordance with Section 11.02(e) (an
"OFFER TO REDEEM"). If any Offer to Redeem is accepted, all redemptions shall be
made in accordance with Section 2.10(h).
SECTION 2.11 ALTERNATE RATE OF INTEREST. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall
be final and conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBOR Rate for
such Interest Period; or
(b) the Administrative Agent is advised in writing by the Required
Lenders that the Adjusted LIBOR Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders of making or
maintaining their Loans included in such Borrowing for such Interest
Period;
then the Administrative Agent shall give written notice thereof to U.S. Borrower
and the Lenders as promptly as practicable thereafter and, until the
Administrative Agent notifies U.S. Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist (which the
Administrative Agent agrees to use its commercially reasonable efforts to do
promptly after it learns such circumstances cease to exist), (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.12 INCREASED COSTS.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against property of, deposits with or for the
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBOR Rate) or the Issuing Bank; or
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(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition or expense affecting this Agreement
or Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender, the
Issuing Bank or such Lender's or the Issuing Bank's holding company, if any, of
participating in, issuing or maintaining any Letter of Credit or to reduce the
amount of any sum received or receivable by such Lender or the Issuing Bank
hereunder (whether of principal, interest or otherwise), then the applicable
Borrower will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank,
as the case may be, for such additional costs incurred or reduction suffered, it
being understood that, to the extent duplicative of the provisions of Section
2.15, this Section 2.12 shall not apply to Taxes.
(b) If any Lender or the Issuing Bank determines (in good faith, but
in its sole absolute discretion) that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's or the Issuing Bank's capital or on the capital of such Lender's or the
Issuing Bank's holding company, if any, as a consequence of this Agreement or
the Loans made by, or participations in Letters of Credit held by, such Lender,
or the Letters of Credit issued by the Issuing Bank, to a level below that which
such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding
company could have achieved but for such Change in Law (taking into
consideration such Lender's or the Issuing Bank's policies and the policies of
such Lender's or the Issuing Bank's holding company with respect to capital
adequacy), then from time to time the applicable Borrower will pay to such
Lender or the Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or the Issuing Bank or such Lender's or
the Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth in
reasonable detail the amount or amounts necessary to compensate such Lender or
the Issuing Bank or its holding company, as the case may be, as specified in
paragraph (a) or (b) of this Section 2.12 shall be delivered to the applicable
Borrower (with a copy to the Administrative Agent) and shall be conclusive and
binding absent manifest error. Such Borrower shall pay such Lender or the
Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank
to demand compensation pursuant to this Section 2.12 shall not constitute a
waiver of such Lender's or the Issuing Bank's right to demand such compensation;
provided that neither Borrower shall be required to compensate a Lender or the
Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than 180 days prior to the date that such Lender or the Issuing
Bank, as the case may be, notifies such Borrower of the Change in Law giving
rise to such increased costs or reductions and of such Lender's or the Issuing
Bank's intention to claim compensation therefor; provided, further, that, if the
Change in Law giving rise to such increased costs or reductions is retroactive,
then the 180-day period referred to above shall not begin earlier than the date
of effectiveness of the Change in Law.
SECTION 2.13 BREAKAGE PAYMENTS. In the event of (a) the payment or
prepayment, whether optional or mandatory, of any principal of any Eurodollar
Loan earlier than the last day of an Interest Period applicable thereto
(including as a result of an Event of Default), (b) the conversion of any
Eurodollar Loan earlier than the last day of the Interest Period applicable
thereto, (c) the failure to borrow, convert, continue or prepay any Revolving
Loan or Term Loan on the date specified in any notice delivered pursuant hereto
or (d) the assignment of any Eurodollar Loan earlier than the last day of the
Interest Period applicable thereto as a result of a request by a Borrower
pursuant to Section 2.16, then, in
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any such event, such Borrower shall compensate each Lender for the loss (other
than lost profit or spread), cost and expense attributable to such event. In the
case of a Eurodollar Loan, such loss, cost or expense to any Lender shall be
deemed to include an amount determined by such Lender to be the excess, if any,
of (i) the amount of interest which would have accrued on the principal amount
of such Loan had such event not occurred, at the Adjusted LIBOR Rate that would
have been applicable to such Loan, for the period from the date of such event to
the last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, for the period that would have been the
Interest Period for such Loan), over (ii) the amount of interest which would
accrue on such principal amount for such period at the interest rate which such
Lender would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the Eurodollar
market. A certificate of any Lender setting forth in reasonable detail any
amount or amounts that such Lender is entitled to receive pursuant to this
Section 2.13 shall be delivered to the applicable Borrower (with a copy to the
Administrative Agent) and shall be conclusive and binding absent manifest error.
Such Borrower shall pay such Lender the amount shown as due on any such
certificate within 5 days after receipt thereof.
SECTION 2.14 PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SETOFFS.
(a) Each Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees
or Reimbursement Obligations, or of amounts payable under Section 2.12, 2.13 or
2.15, or otherwise) on or before the time expressly required hereunder or under
such other Loan Document for such payment (or, if no such time is expressly
required, prior to 2:00 p.m., New York City time), on the date when due, in
immediately available funds, without setoff, deduction or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 677 Washington
Boulevard, Stamford, Connecticut, except payments to be made directly to the
Issuing Bank or Swingline Lender as expressly provided herein and except that
payments pursuant to Sections 2.12, 2.13, 2.15 and 11.03 shall be made directly
to the persons entitled thereto and payments pursuant to other Loan Documents
shall be made to the persons specified therein. The Administrative Agent shall
distribute any such payments received by it for the account of any other person
to the appropriate recipient promptly following receipt thereof. If any payment
under any Loan Document shall be due on a day that is not a Business Day, unless
specified otherwise, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
under each Loan Document shall be made in dollars, except as expressly specified
otherwise.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, Reimbursement
Obligations, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and Reimbursement Obligations then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and Reimbursement
Obligations then due to such parties.
(c) If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise (including by exercise of its rights under Section 9.1
of the Security Agreement), obtain payment in respect of any principal of or
interest on any of its Revolving Loans, Term Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Revolving Loans, Term Loans
and participations in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Re-
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volving Loans, Term Loans and participations in LC Disbursements and Swingline
Loans of other Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective Revolving Loans,
Term Loans and participations in LC Disbursements and Swingline Loans; provided
that (i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded
and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph shall not be construed to
apply to any payment made by either Borrower pursuant to and in accordance with
the express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in LC Disbursements to any assignee or participant,
other than to U.S. Borrower or any of its Subsidiaries or Affiliates (as to
which the provisions of this paragraph shall apply). Each Loan Party consents to
the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Loan Party rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Loan Party in the amount of such participation. If
under applicable bankruptcy, insolvency or any similar law any Secured Party
receives a secured claim in lieu of a setoff or counterclaim to which this
Section 2.14(c) applies, such Secured Party shall to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights to which the Secured Party is entitled under this Section 2.14(c) to
share in the benefits of the recovery of such secured claim.
(d) Unless the Administrative Agent shall have received notice from
the applicable Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that such Borrower
will not make such payment, the Administrative Agent may assume that such
Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders the amount due. In such
event, if such Borrower has not in fact made such payment, then each of the
Lenders severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.02(c), 2.14(d), 2.17(d), 2.18(d), 2.18(e) or
11.03(d), then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.15 TAXES.
(a) Any and all payments by or on account of any obligation of
either Borrower hereunder or under any other Loan Document shall be made without
setoff, counterclaim or other defense and free and clear of and without
deduction or withholding for any and all Indemnified Taxes; provided that if
either Borrower or any Secured Party shall be required by law to deduct or pay
any Indemnified Taxes from or in respect of such payments, then (i) the sum
payable shall be increased as necessary so that after making or allowing for all
required deductions and payments (including deductions, withholdings or payments
applicable to additional sums payable under this Section 2.15) the
Administrative Agent, any Lender or the Issuing Bank, as the case may be,
receives an amount equal to the sum it would have received had no such
deductions, withholdings or payments been required, (ii) such Borrower shall
make such deductions or withholdings, as are required to be made by it and (iii)
such Borrower shall pay
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the full amount deducted or withheld by it to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, such Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Each Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within 10 Business Days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent, such Lender or the Issuing Bank, as the case may be,
on or with respect to any payment by or on account of any obligation of such
Borrower hereunder or under any other Loan Document, or otherwise with regard to
any Loan Document, (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section 2.15) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to either
Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes and in any event within 30 days of any such payment being due, by
either Borrower to a Governmental Authority, such Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Each Foreign Lender shall deliver to the Borrowers and the
Administrative Agent two copies of either U.S. Internal Revenue Service Form
W-8BEN or Form W-8ECI, or, in the case of a Foreign Lender claiming exemption
from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest", a statement substantially in
the form of Exhibit Q and a Form W-8BEN, or any subsequent versions thereof or
successors thereto, properly completed and duly executed by such Foreign Lender
claiming complete exemption from, or a reduced rate of, U.S. federal withholding
tax on all payments by the Borrowers under this Agreement and the other Loan
Documents. Such forms shall be delivered by each Foreign Lender on or before the
date it becomes a party to this Agreement. In addition, each Foreign Lender
shall deliver such forms within ten (10) Business Days after receipt of a
written notification from the Borrowers that any form previously delivered by
such Foreign Lender is invalid or is due to expire or to become obsolete. Each
Foreign Lender shall promptly notify the Borrowers at any time it determines
that it is no longer in a position to provide any previously delivered
certificate to the Borrowers (or any other form of certification adopted by the
U.S. taxing authorities for such purpose). Notwithstanding any other provision
of this paragraph, a Foreign Lender shall not be required to deliver any form
pursuant to this paragraph that such Foreign Lender is not legally able to
deliver.
(f) If the Administrative Agent or a Lender determines in its
reasonable discretion that it is entitled to claim a refund of any Indemnified
Taxes or Other Taxes as to which it has been indemnified by a Borrower or with
respect to which a Borrower has paid additional amounts pursuant to this Section
2.15, it promptly shall notify the applicable Borrower of the availability of
such refund claim. Upon receipt of a written request from a Borrower, such
Administrative Agent or Lender shall use reasonable efforts to file a timely
claim to such taxation authority for such refund, solely at the Borrower's
expense. If the Administrative Agent or a Lender receives a refund (including
pursuant to a claim for refund made pursuant to the preceding sentence) or in
respect of any Indemnified Taxes or Other Taxes with respect to which a Borrower
has paid additional amounts pursuant to this Section 2.15, it shall within 30
days from the date of such receipt pay over the amount of such refund to the
applicable Borrower, net
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of all reasonable out-of-pocket expenses of such Administrative Agent or Lender
(as determined in the Administrative Agent's or Lender's reasonable discretion)
and without interest (other than interest paid by the relevant taxation
authority with respect to such refund); provided, however, that (i) each
Borrower, upon the request of the Administrative Agent or such Lender (or
assignee), agrees to repay the amount paid over to such Borrower (plus any
penalties, interest or other charges (including Taxes) imposed by the relevant
Governmental Authority) to the Administrative Agent or such Lender (or assignee)
within a reasonable time (not to exceed 20 days) after receipt of written notice
that the Administrative Agent or such Lender (or assignee) is required to repay
such refund to such Governmental Authority and (ii) such Administrative Agent or
Lender shall not be required to make any payment under this Section 2.15(f) if
an Event of Default shall have occurred and be continuing. Nothing contained in
this Section 2.15(f) shall require the Administrative Agent or any Lender (or
assignee) to make available its Tax Returns or any other information which it
deems confidential to a Borrower or any other person. Notwithstanding anything
to the contrary, in no event will any Lender be required to pay any amount to a
Borrower the payment of which would place such Lender in a less favorable net
after-tax position than such Lender would have been in if the additional amounts
giving rise to such refund of any Indemnified Taxes had never been paid.
(g) The Administrative Agent and each Lender agrees, upon written
request from a Borrower, to use reasonable efforts (subject to overall policy
considerations of the Administrative Agent or such Lender, as the case may be,
and legal and regulatory restrictions) to avoid or minimize any amounts that
might otherwise be payable by a Borrower pursuant to this Section 2.15; provided
that such effort shall not impose on the Administrative Agent or any Lender any
additional costs or any other economic, legal, regulatory or other disadvantage,
as determined in the Administrative Agent's or such Lender's sole discretion;
provided, further, that nothing in this Section 2.15(g) shall affect or postpone
any of the obligations of a Borrower or the rights of any Administrative Agent
or Lender pursuant to this Section 2.15.
(h) The agreements in this Section shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
SECTION 2.16 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) Mitigation of Obligations. If any Lender requests compensation
under Section 2.12, or if a Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant
to Section 2.15, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the reasonable judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section
2.12 or 2.15, as the case may be, in the future and (ii) would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrowers, as applicable, hereby agree to
pay all reasonable costs and expenses incurred by any Lender in connection with
any such designation or assignment. A certificate setting forth such costs and
expenses in reasonable detail submitted by such Lender to the Administrative
Agent shall be conclusive absent manifest error.
(b) Replacement of Lenders. If any Lender requests compensation
under Section 2.12, or if a Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant
to Section 2.15, or any Lender is a non-consenting Lender under Section
11.02(c), or if any Lender defaults in its obligation to fund Loans hereunder,
then the applicable Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and sub-
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ject to the restrictions contained in Section 11.04), all of its interests,
rights and obligations under this Agreement to an assignee selected by such
Borrower that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) such Borrower
shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Commitment is being assigned, the Issuing Bank and Swingline
Lender), which consents shall not unreasonably be withheld, (ii) such Lender
shall have received payment of an amount equal to the outstanding principal of
its Loans and participations in LC Disbursements and Swingline Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder
(assuming for this purpose that the Loans of such Lender were being prepaid)
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or such Borrower (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from a claim for compensation under
Section 2.12 or payments required to be made pursuant to Section 2.15, such
assignment will result in a material reduction in such compensation or payments.
A Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling a Borrower to require such assignment and delegation
cease to apply.
SECTION 2.17 SWINGLINE LOANS.
(a) Swingline Commitment. Subject to the terms and conditions set
forth herein, the Swingline Lender agrees to make Swingline Loans to U.S.
Borrower from time to time during the Revolving Availability Period, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of outstanding Swingline Loans exceeding $15.0
million or (ii) the sum of the total Revolving Exposures exceeding the total
Revolving Commitments; provided that the Swingline Lender shall not be required
to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the
foregoing limits and subject to the terms and conditions set forth herein, U.S.
Borrower may borrow, repay and reborrow Swingline Loans.
(b) Swingline Loans. To request a Swingline Loan, U.S. Borrower
shall deliver, by hand delivery or telecopy, a duly completed and executed U.S.
Borrowing Request to the Administrative Agent and the Swingline Lender, not
later than 2:00 p.m., New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and the amount of the requested Swingline Loan.
Each Swingline Loan shall be an ABR Loan. The Swingline Lender shall make each
Swingline Loan available to U.S. Borrower by means of a credit to the general
deposit account of U.S. Borrower with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.18(e), by remittance to the Issuing Bank) by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan. U.S. Borrower
shall not request a Swingline Loan if at the time of or immediately after giving
effect to the Extension of Credit contemplated by such request a Default has
occurred and is continuing or would result therefrom. Swingline Loans shall be
made in minimum amounts of $500,000 and integral multiples of $250,000 above
such amount.
(c) Prepayment. U.S. Borrower shall have the right at any time and
from time to time to repay any Swingline Loan, in whole or in part, upon giving
written notice to the Swingline Lender and the Administrative Agent before 12:00
(noon), New York City time, on the proposed date of repayment.
(d) Participations. The Swingline Lender may at any time in its
discretion by written notice given to the Administrative Agent (provided such
notice requirement shall not apply if the Swingline Lender and the
Administrative Agent are the same entity) not later than 11:00 A.M., New York
City time, on the next succeeding Business Day following such notice require the
Revolving Lenders to acquire participations on such Business Day in all or a
portion of the Swingline Loans then outstanding.
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Such notice shall specify the aggregate amount of Swingline Loans in which
Revolving Lenders will participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each Revolving Lender,
specifying in such notice such Lender's Pro Rata Percentage of such Swingline
Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the Administrative
Agent, for the account of the Swingline Lender, such Lender's Pro Rata
Percentage of such Swingline Loan or Loans. Each Revolving Lender acknowledges
and agrees that its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including 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 (so long as such payment shall not cause such Lender's
Revolving Exposure to exceed such Lender's Revolving Commitment). Each Revolving
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.02(c)
with respect to Loans made by such Lender (and Section 2.02 shall apply, mutatis
mutandis, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Revolving Lenders. The Administrative Agent shall notify
U.S. Borrower of any participations in any Swingline Loan acquired by the
Revolving Lenders pursuant to this paragraph, and thereafter payments in respect
of such Swingline Loan shall be made to the Administrative Agent and not to the
Swingline Lender. Any amounts received by the Swingline Lender from U.S.
Borrower (or other party on behalf of U.S. Borrower) in respect of a Swingline
Loan after receipt by the Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Administrative Agent.
Any such amounts received by the Administrative Agent shall be promptly remitted
by the Administrative Agent to the Revolving Lenders that shall have made their
payments pursuant to this paragraph, as their interests may appear. The purchase
of participations in a Swingline Loan pursuant to this paragraph shall not
relieve U.S. Borrower of any default in the payment thereof.
SECTION 2.18 LETTERS OF CREDIT
(a) General. Subject to the terms and conditions set forth herein,
U.S. Borrower may request the Issuing Bank, and the Issuing Bank agrees, to
issue Letters of Credit for its own account or the account of a Subsidiary in a
form reasonably acceptable to the Administrative Agent and the Issuing Bank, at
any time and from time to time during the Revolving Availability Period
(provided that U.S. Borrower shall be a co-applicant, and be jointly and
severally liable, with respect to each Letter of Credit issued for the account
of a Subsidiary). The Issuing Bank shall have no obligation to issue, and U.S.
Borrower shall not request the issuance of, any Letter of Credit at any time if
after giving effect to such issuance, the LC Exposure would exceed the LC
Commitment or the total Revolving Exposure would exceed the total Revolving
Commitments. 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 U.S. Borrower to, or entered into by
U.S. Borrower with, the Issuing Bank relating to any Letter of Credit, the terms
and conditions of this Agreement shall control.
(b) Request for 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, U.S. Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) an LC Request
to the Issuing Bank and the Administrative Agent not later than 11:00 a.m. on
the third Business Day preceding the requested date of issuance, amendment,
renewal or extension (or such later date and time as is acceptable to the
Issuing Bank).
A request for an initial issuance of a Letter of Credit shall
specify in form and detail satisfactory to the Issuing Bank:
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(i) the proposed issuance date of the requested Letter of Credit
(which shall be a Business Day);
(ii) the amount thereof;
(iii) the expiry date thereof (which shall not be later than the
close of business on the Letter of Credit Expiration Date);
(iv) the name and address of the beneficiary thereof;
(v) whether the Letter of Credit is to be issued for its own account
or for the account of one of its Subsidiaries (provided that U.S. Borrower
shall be a co-applicant, and therefore jointly and severally liable, with
respect to each Letter of Credit issued for the account of a Subsidiary);
(vi) the documents to be presented by such beneficiary in connection
with any drawing thereunder;
(vii) the full text of any certificate to be presented by such
beneficiary in connection with any drawing thereunder; and
(viii) such other matters as the Issuing Bank may require.
A request for an amendment, renewal or extension of any outstanding
Letter of Credit shall specify in form and detail satisfactory to the Issuing
Bank:
(i) the Letter of Credit to be amended, renewed or extended;
(ii) the proposed date of amendment, renewal or extension thereof
(which shall be a Business Day);
(iii) the nature of the proposed amendment, renewal or extension;
and
(iv) such other matters as the Issuing Bank may require.
If requested by the Issuing Bank, U.S. Borrower also shall submit a letter of
credit application on the 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, U.S. Borrower shall be deemed to represent and warrant
that), after giving effect to such issuance, amendment, renewal or extension,
(i) the LC Exposure shall not exceed the LC Commitment, (ii) the total Revolving
Exposures shall not exceed the total Revolving Commitments and (iii) the
conditions set forth in Article IV in respect of such issuance, amendment,
renewal or extension shall have been satisfied. Unless the Issuing Bank shall
agree otherwise, no Letter of Credit shall be in an initial amount less than
$100,000, in the case of a Commercial Letter of Credit, or $500,000, in the case
of a Standby Letter of Credit, or is to be denominated in a currency other than
Dollars.
(c) Expiration Date. Each Letter of Credit shall expire at or prior
to the close of business on the earlier of (i) in the case of a Standby Letter
of Credit, (x) the date which is no later than one year after the date of the
issuance of such Standby Letter of Credit (or, in the case of any renewal or
extension thereof, no later than one year after such renewal or extension) and
(y) the Letter of Credit Expiration Date and (ii) in the case of a Commercial
Letter of Credit, (x) the date that is no later than
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180 days after the date of issuance of such Commercial Letter of Credit (or, in
the case of any renewal or extension thereof, no later than 180 days after such
renewal or extension) and (y) the Letter of Credit Expiration Date.
(d) Participations. By the issuance 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 the Issuing Bank or the Lenders, the Issuing Bank
hereby irrevocably grants to each Revolving Lender, and each Revolving Lender
hereby acquires from the Issuing Bank, a participation in such Letter of Credit
equal to such Revolving Lender's Pro Rata Percentage of the aggregate amount
available to be drawn under such Letter of Credit. In consideration and in
furtherance of the foregoing, each Revolving Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of
the Issuing Bank, such Revolving Lender's Pro Rata Percentage of each LC
Disbursement made by the Issuing Bank and not reimbursed by U.S. Borrower on the
date due as provided in Section 2.18(e), or of any reimbursement payment
required to be refunded to U.S. Borrower for any reason. Each Revolving 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, the occurrence and
continuance of a Default, reduction or termination of the Commitments, or
expiration, termination or cash collateralization of any Letter of Credit and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. The Administrative Agent shall notify the Revolving
Lenders promptly after the issuance, amendment or expiration of any Letter of
Credit.
(e) Reimbursement.
(i) If the Issuing Bank shall make any LC Disbursement in respect of
a Letter of Credit, U.S. Borrower shall reimburse such LC Disbursement by paying
to the Issuing Bank an amount equal to such LC Disbursement not later than 3:00
p.m., New York City time, on the date that such LC Disbursement is made if U.S.
Borrower shall have received notice of such LC Disbursement prior to 11:00 a.m.,
New York City time, on such date, or, if such notice has not been received by
U.S. Borrower prior to such time on such date, then not later than 3:00 p.m.,
New York City time, on the Business Day immediately following the day that U.S.
Borrower receives such notice; provided that U.S. Borrower may, subject to the
conditions to borrowing set forth herein, request (x) in accordance with Section
2.03 that such payment be financed with ABR Revolving Loans in an equivalent
amount and, to the extent so financed, U.S. Borrower's obligation to make such
payment shall be discharged and replaced by the resulting ABR Revolving Loans or
(y) that such payment be satisfied with the proceeds of Term Loans held in the
Ply Gem LC Restricted Account.
(ii) If U.S. Borrower fails to make such payment when due, the
Issuing Bank shall notify the Administrative Agent and the Administrative Agent
shall notify each Revolving Lender of the applicable LC Disbursement, the
payment then due from U.S. Borrower in respect thereof and such Revolving
Lender's Pro Rata Percentage thereof. Each Revolving Lender shall pay by wire
transfer of immediately available funds to the Administrative Agent not later
than 2:00 p.m., New York City time, on such date (or, if such Revolving Lender
shall have received such notice later than 12:00 noon, New York City time, on
any day, not later than 11:00 a.m., New York City time, on the immediately
following Business Day), an amount equal to such Revolving Lender's Pro Rata
Percentage of the unreimbursed LC Disbursement in the same manner as provided in
Section 2.02(c) with respect to Revolving Loans made by such Revolving Lender,
and the Administrative Agent will promptly pay to the Issuing Bank the amounts
so received by it from the Revolving Lenders. The Administrative Agent will
promptly pay to the Issuing Bank any amounts received by it from U.S. Borrower
pursuant to the above paragraph prior to the time that any Revolving Lender
makes any payment pursuant to the preceding sentence and any such amounts
received by the Administrative Agent from U.S. Borrower thereafter will be
promptly remitted
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by the Administrative Agent to the Revolving Lenders that shall have made such
payments and to the Issuing Bank, as appropriate.
(iii) If any Revolving Lender shall not have made its Pro Rata
Percentage of such LC Disbursement available to the Administrative Agent as
provided above, each of such Revolving Lender and U.S. Borrower severally agrees
to pay interest on such amount, for each day from and including the date such
amount is required to be paid in accordance with the foregoing to but excluding
the date such amount is paid, to the Administrative Agent for the account of the
Issuing Bank at (i) in the case of U.S. Borrower, the rate per annum set forth
in Section 2.18(h) and (ii) in the case of such Lender, at a rate determined by
the Administrative Agent in accordance with banking industry rules or practices
on interbank compensation.
(f) Obligations Absolute. The Reimbursement Obligation of U.S.
Borrower as provided in Section 2.18(e) shall be absolute, unconditional and
irrevocable, and shall be paid and 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 being proved to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; (iii) payment by the Issuing Bank
under a Letter of Credit against presentation of a draft or other document that
fails to comply with the terms of such Letter of Credit; (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 2.18, constitute a legal or
equitable discharge of, or provide a right of setoff against, the obligations of
U.S. Borrower hereunder; (v) the fact that a Default shall have occurred and be
continuing; or (vi) any material adverse change in the business, property,
results of operations, prospects or condition, financial or otherwise, of U.S.
Borrower and its Subsidiaries. None of the Agents, the Lenders, the Issuing Bank
or 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 control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
Issuing Bank from liability to U.S. Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by U.S. Borrower to the extent permitted by applicable law) suffered by
U.S. Borrower that are caused by the 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 the
Issuing Bank (as finally determined by a court of competent jurisdiction), the
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, the
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. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
give written notice to the Administrative Agent and U.S. Borrower of such demand
for payment and whether the Issuing Bank has made or will make an LC
Disbursement thereunder; provided that any failure to give or delay in giving
such notice shall not relieve U.S. Borrower
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of its Reimbursement Obligation to the Issuing Bank and the Revolving Lenders
with respect to any such LC Disbursement (other than with respect to the timing
of such Reimbursement Obligation set forth in Section 2.18(e)).
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless U.S. Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest payable on demand, for each day from and including the date such
LC Disbursement is made to but excluding the date that U.S. Borrower reimburses
such LC Disbursement, at the rate per annum determined pursuant to Section
2.06(a) until the day after U.S. Borrower is notified of such LC Disbursement
and thereafter pursuant to Section 2.06(c). Interest accrued pursuant to this
paragraph shall be for the account of the Issuing Bank, except that interest
accrued on and after the date of payment by any Revolving Lender pursuant to
Section 2.18(e) to reimburse the Issuing Bank shall be for the account of such
Lender to the extent of such payment.
(i) Cash Collateralization. If any Event of Default shall occur and
be continuing, on the Business Day that U.S. Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Lenders with LC Exposure representing greater
than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, U.S. Borrower shall deposit in the LC Sub-Account,
in the name of the Collateral Agent and for the benefit of the Revolving
Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided that 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 U.S. Borrower
described in paragraph (g) or (h) of Article VIII. Funds in the LC Sub-Account
shall be applied by the Collateral Agent to reimburse the Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of outstanding Reimbursement
Obligations or, if the maturity of the Loans has been accelerated (but subject
to the consent of Revolving Lenders with LC Exposure representing greater than
50% of the total LC Exposure), be applied to satisfy other Obligations of U.S.
Borrower under this Agreement. If U.S. Borrower is required to provide an amount
of cash collateral hereunder as a result of the occurrence of an Event of
Default, such amount plus any accrued interest or realized profits with respect
to such amounts (to the extent not applied as aforesaid) shall be returned to
U.S. Borrower within three Business Days after all Events of Default have been
cured or waived.
(j) Additional Issuing Banks. U.S. Borrower may, at any time and
from time to time, designate one or more additional Revolving Lenders to act as
an issuing bank under the terms of this Agreement, with the consent of the
Administrative Agent (which consent shall not be unreasonable withheld), the
Issuing Bank and such Revolving Lender(s). Any Lender designated as an issuing
bank pursuant to this paragraph (j) shall be deemed (in addition to being a
Revolving Lender) to be the Issuing Bank with respect to Letters of Credit
issued or to be issued by such Revolving Lender, and all references herein and
in the other Loan Documents to the term "Issuing Bank" shall, with respect to
such Letters of Credit, be deemed to refer to such Revolving Lender in its
capacity as Issuing Bank, as the context shall require.
(k) Resignation or Removal of the Issuing Bank. The Issuing Bank may
resign as Issuing Bank hereunder at any time upon at least 30 days' prior notice
to the Lenders, the Administrative Agent and U.S. Borrower. The Issuing Bank may
be replaced at any time by written agreement among U.S. Borrower, each Agent,
the replaced Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Lenders of any such replacement of the Issuing Bank or
any such additional Issuing Bank. At the time any such resignation or
replacement shall become effective, U.S. Borrower shall pay all unpaid fees
accrued for the account of the replaced Issuing Bank pursuant to Section
2.05(c).
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From and after the effective date of any such resignation or replacement or
addition, as applicable, (i) the successor or additional Issuing Bank shall have
all the rights and obligations of the Issuing Bank under this Agreement with
respect to Letters of Credit to be issued by it thereafter and (ii) references
herein to the term "Issuing Bank" shall be deemed to refer to such successor or
such addition or to any previous Issuing Bank, or to such successor or such
addition and all previous Issuing Banks, as the context shall require. After the
resignation or 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 resignation or replacement, but shall not be
required to issue additional Letters of Credit. If at any time there is more
than one Issuing Bank hereunder, U.S. Borrower may, in its discretion, select
which Issuing Bank is to issue any particular Letter of Credit.
(l) Other. The Issuing Bank shall be under no obligation to issue
any Letter of Credit if
(i) any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain the Issuing
Bank from issuing such Letter of Credit, or any law applicable to the
Issuing Bank or any request or directive (whether or not having the force
of law) from any Governmental Authority with jurisdiction over the Issuing
Bank shall prohibit, or request that the Issuing Bank refrain from, the
issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon the Issuing Bank with respect to such
Letter of Credit any restriction, reserve or capital requirement (for
which the Issuing Bank is not otherwise compensated hereunder) not in
effect on the Second Amendment Effectiveness Date, or shall impose upon
the Issuing Bank any unreimbursed loss, cost or expense which was not
applicable on the Second Amendment Effectiveness Date and which the
Issuing Bank in good faith deems material to it; or
(ii) the issuance of such Letter of Credit would violate one or more
policies of the Issuing Bank.
The Issuing Bank shall be under no obligation to amend any Letter of Credit if
(A) the Issuing Bank would have no obligation at such time to issue such Letter
of Credit in its amended form under the terms hereof, or (B) the beneficiary of
such Letter of Credit does not accept the proposed amendment to such Letter of
Credit.
(m) Foreign Curreny Letters of Credit. If the Issuing Bank agrees
pursuant to the last sentence of Section 2.18(b) to issue a Letter of Credit
denominated in a currency other than Dollars, then notwithstanding anything
herein to the contrary, with respect to any such Letter of Credit, the related
LC Exposure, the related Reimbursement Obligation of U.S. Borrower, any
reimbursement obligation of any Revolving Lender pursuant to Section 2.18(e),
any other obligation owed by or to any Revolving Lender, and any LC
Participation Fee or Fronting Fee owed pursuant to Section 2.05(c) shall be
calculated and due solely in Dollars. The exchange rate for conversion into
Dollars utilized shall be the Dollar equivalent of the applicable foreign
currency as reasonably determined by the Issuing Bank and the Administrative
Agent based on the rate at which the Issuing Bank could convert or has converted
any such foreign currency into Dollars taking into account all transaction
costs. Any such exchange rate shall be updated at intervals reasonably
determined by the Issuing Bank and the Administrative Agent.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each Loan Party represents and warrants to the Administrative Agent,
the Collateral Agent, the Issuing Bank and each of the Lenders (with references
to the Companies being references thereto after giving effect to the Second
Amendment Transactions and the Transactions unless otherwise expressly stated)
that:
SECTION 3.01 ORGANIZATION; POWERS. Each Company (a) is duly
organized and validly existing under the laws of the jurisdiction of its
organization, (b) has all requisite power and authority to carry on its business
as now conducted and to own and lease its property and (c) is qualified and in
good standing (to the extent such concept is applicable in the applicable
jurisdiction) to do business in every jurisdiction where such qualification is
required, except in such jurisdictions where the failure to so qualify or be in
good standing, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. There is no existing default
under any Organizational Document of any Company or any event which, with the
giving of notice or passage of time or both, would constitute a default by any
party thereunder.
SECTION 3.02 AUTHORIZATION; ENFORCEABILITY. The Transactions and the
Second Amendment Transactions to be entered into by each Loan Party are within
such Loan Party's powers and have been duly authorized by all necessary action
on the part of such Loan Party. This Agreement has been duly executed and
delivered by each Loan Party and constitutes, and each other Loan Document to
which any Loan Party is to be a party, when executed and delivered by such Loan
Party, will constitute, a legal, valid and binding obligation of such Loan
Party, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03 NO CONFLICTS. Except as set forth on Schedule 3.03, the
Transactions and the Second Amendment Transactions (a) do not require any
consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except (i) such as have been obtained or made and are in
full force and effect, (ii) filings necessary to perfect Liens created by the
Loan Documents and (iii) consents, approvals, registrations, filings, permits or
actions the failure to obtain or perform which could not reasonably be expected
to result in a Material Adverse Effect, (b) will not violate the Organizational
Documents of any Company or any law, judgment, decree or order of any
Governmental Authority, (c) will not violate or result in a default or require
any consent or approval under any indenture, agreement, Organizational Document
or other instrument binding upon any Company or its property, or give rise to a
right thereunder to require any payment to be made by any Company, except for
violations, defaults or the creation of such rights that could not reasonably be
expected to result in a Material Adverse Effect, and (d) will not result in the
creation or imposition of any Lien on any property of any Company, except Liens
created by the Loan Documents and Permitted Liens.
SECTION 3.04 FINANCIAL STATEMENTS; PROJECTIONS.
(a) U.S. Borrower has, prior to the Original Closing Date, delivered
to the Lenders the consolidated balance sheets and related statements of income,
stockholders' equity and cash flows of U.S. Borrower (i) as of and for the
fiscal years ended December 31, 2000, December 31, 2001 and December 31, 2002,
audited by and accompanied by the unqualified opinion of Ernst & Young, LLP,
independent public accountants, and (ii) as of and for the nine-month period
ended September 30, 2003 and for the comparable period of the preceding fiscal
year, in each case, certified by the chief financial officer
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of U.S. Borrower. Such financial statements and all financial statements
delivered pursuant to Sections 5.01(a) and (b) have been prepared in accordance
with GAAP and present fairly and accurately, in all material respects, the
financial condition and results of operations and cash flows of U.S. Borrower as
of the dates and for the periods to which they relate. Except as set forth in
such financial statements, there are no liabilities of any Company of any kind,
whether accrued, contingent, absolute, determined, determinable or otherwise,
which could reasonably be expected to result in a Material Adverse Effect, and
there is no existing condition, situation or set of circumstances which could
reasonably be expected to result in such a liability, other than liabilities
under the Loan Documents, the Senior Subordinated Note Documents and the New
Senior Subordinated Note Documents.
(b) U.S. Borrower has, prior to the Original Closing Date, delivered
to the Lenders U.S. Borrower's unaudited pro forma consolidated balance sheet
and statements of income and cash flows and pro forma EBITDA for the fiscal year
ended December 31, 2002, and as of and for the nine-month period ended September
30, 2003 and for the four-quarter period ended September 30, 2003, in each case
after giving effect to the Transactions as if they had occurred on such date in
the case of the balance sheet and as of the beginning of all periods presented
in the case of the statements of income and cash flows. Such pro forma financial
statements have been prepared in good faith by the Loan Parties, based on the
assumptions stated therein (which assumptions were believed by the Loan Parties
on the Original Closing Date to be reasonable), are based on the best
information available to the Loan Parties as of the date of delivery thereof,
accurately reflect all adjustments required to be made to give effect to the
Transactions, and present fairly in all material respects the pro forma
consolidated financial position and results of operations of U.S. Borrower as of
such date and for such periods, assuming that the Transactions had occurred at
such dates.
(c) U.S. Borrower has, prior to the Second Amendment Effectiveness
Date, delivered to the Lenders the unaudited consolidated balance sheets and
related statements of income and cash flows of each of U.S. Borrower and MW as
of and for July 3, 2004 and the comparable six-month period of the preceding
fiscal year, in each case, subject to a review in accordance with the standards
of the Public Company Accounting Oversight Board performed by Ernst & Young,
LLP, the independent registered public accounting firm used by the Companies,
and in each case, certified by the chief financial officer of U.S. Borrower.
Such financial statements have been prepared in accordance with GAAP and present
fairly and accurately, in all material respects, the financial condition and
results of operations and cash flows of U.S. Borrower or MW, as applicable, as
of the dates and for the periods to which they relate.
(d) U.S. Borrower has, prior to the Second Amendment Effectiveness
Date, delivered to the Lenders U.S. Borrower's unaudited pro forma statement of
income and pro forma EBITDA for the fiscal year ended December 31, 2003, and for
the six-month period ended July 3, 2004, as well as its pro forma consolidated
balance sheet as of July 3, 2004 and pro forma EBITDA for the twelve-month
period ended July 3, 2004, in each case after giving effect to the Second
Amendment Transactions as if they had occurred on such date in the case of the
balance sheet and as of the beginning of all periods presented in the case of
the statement of income. Such pro forma financial statements have been prepared
in good faith by the Loan Parties, based on the assumptions stated therein
(which assumptions are believed by the Loan Parties on the date hereof and on
the Second Amendment Effectiveness Date to be reasonable), are based on the best
information available to the Loan Parties as of the date of delivery thereof,
accurately reflect all adjustments required to be made to give effect to the
Second Amendment Transactions, and present fairly in all material respects the
pro forma consolidated financial position and results of operations of U.S.
Borrower as of such date and for such periods, assuming that the Second
Amendment Transactions had occurred at such dates.
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(e) The forecasts of financial performance of Parent and its
subsidiaries furnished to the Lenders have been prepared in good faith by U.S.
Borrower and based on assumptions believed by U.S. Borrower to reasonable.
(f) Since December 31, 2002, there has been no event, change,
circumstance or occurrence that, individually or in the aggregate, has had or
could reasonably be expected to result in a Material Adverse Effect.
SECTION 3.05 PROPERTIES.
(a) Each Company has good title to, or valid leasehold interests in,
all its property material to its business, free and clear of all Liens except
for, in the case of Collateral, Permitted Collateral Liens and, in the case of
all other material property, Permitted Liens and minor irregularities or
deficiencies in title that, individually or in the aggregate, do not interfere
with its ability to conduct its business as currently conducted or to utilize
such property for its intended purpose. The property of the Companies, taken as
a whole, (i) is in good operating order, condition and repair (ordinary wear and
tear excepted), except to the extent that the failure to be in such condition
could not reasonably be expected to result in a Material Adverse Effect, and
(ii) constitutes all the property which is required for the business and
operations of the Companies as presently conducted.
(b) Schedule 3.05(b) contains a true and complete list of each
interest in Real Property (i) owned by any Company as of the date hereof, and
describes the type of interest therein held by such Company and (ii) leased,
subleased or otherwise occupied or utilized by any Company, as lessee,
sublessee, franchisee or licensee, as of the date hereof and describes the type
of interest therein held by such Company and whether such lease, sublease or
other instrument requires the consent of the landlord thereunder or other
parties thereto to the Transactions or the Second Amendment Transactions.
(c) No Company has received any notice of, nor has any knowledge of,
the occurrence or pendency or contemplation of any Casualty Event in excess of
$7.5 million affecting all or any portion of its property. No Mortgage encumbers
improved Real Property that is located in an area that has been identified by
the Secretary of Housing and Urban Development as an area having special flood
hazards within the meaning of the National Flood Insurance Act of 1968 unless
flood insurance available under such Act has been obtained in accordance with
Section 5.04.
(d) Each Company owns or has rights to use all of the Collateral and
all material rights with respect to any of the foregoing used in, necessary for
or material to each Company's business as currently conducted. The use by each
Company of such Collateral and all such rights with respect to the foregoing do
not infringe on the rights of any person other than such infringement which
could not, individually or in the aggregate, reasonably be expected to result in
a Material Adverse Effect. No claim has been made and remains outstanding that
any Company's use of any Collateral does or may violate the rights of any third
party that could, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect.
(e) The Equipment of each Company is in good repair, working order
and condition, reasonable wear and tear excepted. Each Company shall cause the
Equipment to be maintained and preserved in good repair, working order and
condition, reasonable wear and tear excepted, and shall as quickly as
commercially practicable make or cause to be made all repairs, replacements and
other improvements which are necessary or appropriate in the conduct of each
Company's business.
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SECTION 3.06 INTELLECTUAL PROPERTY.
(a) Ownership/No Claims. Each Loan Party owns, or is licensed to
use, all patents, patent applications, trademarks, trade names, servicemarks,
copyrights, technology, trade secrets, proprietary information, domain names,
know-how and processes necessary for the conduct of its business as currently
conducted (the "INTELLECTUAL PROPERTY"), except for those the failure to own or
license which, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No claim has been asserted and
is pending by any person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such Intellectual
Property, nor does any Loan Party know of any valid basis for any such claim. To
the knowledge of the Loan Parties, the use of such Intellectual Property by each
Loan Party does not infringe the rights of any person, except for such claims
and infringements that, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect.
(b) Registrations. Except pursuant to licenses and other user
agreements entered into by each Loan Party in the ordinary course of business
(including those that are listed in Schedules 14(a) and 14(b) to the Perfection
Certificate), on and as of the date hereof (i) each Loan Party owns and
possesses the right to use, and has taken no affirmative action to authorize or
enable any other person to use, any copyright, patent or trademark (as such
terms are defined in the U.S. Security Agreement) listed in Schedules 14(a) and
14(b) to the Perfection Certificate and (ii) to the knowledge of the Loan
Parties, all issuances and registrations listed in Schedules 14(a) and 14(b) to
the Perfection Certificate are valid and in full force and effect.
(c) No Violations or Proceedings. To each Loan Party's knowledge, on
and as of the date hereof, there is no material violation by others of any right
of such Loan Party with respect to any copyright, patent or trademark listed in
Schedules 14(a) and 14(b) to the Perfection Certificate, respectively, pledged
by it under the name of such Loan Party.
SECTION 3.07 EQUITY INTERESTS AND SUBSIDIARIES.
(a) Schedule 3.07(a) sets forth a list of (i) all the Subsidiaries
of Parent and their jurisdiction of organization as of the Second Amendment
Effectiveness Date and (ii) the number of each class of its Equity Interests
authorized, and the number outstanding, on the Second Amendment Effectiveness
Date and the number of shares covered by all outstanding options, warrants,
rights of conversion or purchase and similar rights at the Second Amendment
Effectiveness Date. All Equity Interests of each Company owned by Parent and its
Subsidiaries are duly and validly issued and are fully paid and non-assessable,
and, other than the Equity Interests of U.S. Borrower, are owned by U.S.
Borrower, directly or indirectly through Subsidiaries. All Equity Interests of
U.S. Borrower are owned directly by Parent (or, after an IPO, the IPO Entity)
and, prior to an IPO, all Equity Interests of Parent are owned directly by
Holdings. Each Loan Party is the record and beneficial owner of, and has good
and marketable title to, the Equity Interests pledged by it under the U.S.
Security Agreement, free of any and all Liens, rights or claims of other
persons, except the security interest created by the U.S. Security Agreement and
there are no outstanding warrants, options or other rights to purchase, or
shareholder, voting trust or similar agreements outstanding with respect to, or
property that is convertible into, or that requires the issuance or sale of, any
such Equity Interests.
(b) No consent of any person including any other general or limited
partner, any other member of a limited liability company, any other shareholder
or any other trust beneficiary is necessary or reasonably desirable (from the
perspective of a secured party) in connection with the creation, perfection or
first priority status of the security interest of the Collateral Agent in any
Equity Interests pledged to the Collateral Agent for the benefit of the Secured
Parties under the Security Agreement or the
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exercise by the Collateral Agent of the voting or other rights provided for in
the Security Agreement or the exercise of remedies in respect thereof.
(c) An accurate organization chart, showing the ownership structure
of Parent, U.S. Borrower and each Subsidiary on the Second Amendment
Effectiveness Date, and after giving effect to the Second Amendment
Transactions, is set forth on Schedule 3.07(c).
SECTION 3.08 LITIGATION; COMPLIANCE WITH LAWS.
(a) There are no actions, suits or proceedings at law or in equity
by or before any Governmental Authority now pending or, to the knowledge of any
Company, threatened against or affecting any Company or any business, property
or rights of any Company (i) that involve any Loan Document or any of the
Transactions or the Second Amendment Transactions or (ii) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect.
(b) Except for matters covered by Section 3.18, no Company or any of
its property is in violation of, nor will the continued operation of its
property as currently conducted violate, any Requirements of Law (including any
zoning or building ordinance, code or approval or any building permits) or any
restrictions of record or agreements affecting any Company's Real Property or is
in default with respect to any judgment, writ, injunction, decree, rule or order
of any Governmental Authority, where such violation or default, individually or
in the aggregate, could reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.09 AGREEMENTS.
(a) No Company is a party to any agreement or instrument or subject
to any corporate or other constitutional restriction that has resulted or could
reasonably be expected to result in a Material Adverse Effect.
(b) No Company is in default in any manner under any provision of
any indenture or other agreement or instrument evidencing Indebtedness, or any
other agreement or instrument to which it is a party or by which it or any of
its property is or may be bound, where such default could reasonably be expected
to result in a Material Adverse Effect, and no condition exists which, with the
giving of notice or the lapse of time or both, would constitute such a default.
(c) Schedule 3.09(c) accurately and completely lists all material
agreements (other than leases of Real Property set forth on Schedule 3.05(b)) to
which any Company is a party which are in effect on the date hereof in
connection with the operation of the business conducted thereby and U.S.
Borrower has delivered to the Administrative Agent complete and correct copies
of all such material agreements, including any amendments, supplements or
modifications with respect thereto, and as of the date hereof all such
agreements are in full force and effect.
SECTION 3.10 FEDERAL RESERVE REGULATIONS.
(a) No Company is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of buying or
carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will
be used, whether directly or indirectly, and whether immediately, incidentally
or ultimately, for any purpose that entails a violation of, or that is
inconsistent with, the provisions of the regulations of the Board, including
Regula-
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tion T, U or X. The pledge of the Securities Collateral pursuant to the Security
Agreement does not violate such regulations.
SECTION 3.11 INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY
ACT. No Company is (a) an "investment company" or a company "controlled" by a
person required to register as an "investment company," as defined in, or
subject to regulation under, the Investment Company Act of 1940, as amended, or
(b) a "holding company," an "affiliate" of a "holding company" or a "subsidiary
company" of a "holding company," as defined in, or subject to regulation under,
the Public Utility Holding Company Act of 1935, as amended.
SECTION 3.12 USE OF PROCEEDS. The Borrowers will use the proceeds of
(a) the Revolving Loans after the Original Closing Date for general corporate
purposes; provided that no more than $15.0 million of Revolving Loans may be
borrowed or outstanding on the Second Amendment Effectiveness Date and then only
for working capital needs and to pay fees and expenses in connection with the
Second Amendment Transactions, (b) the Additional Term Loans extended on the
Second Amendment Effectiveness Date to effect the MW Acquisition and the MW
Refinancing and to pay related fees and expenses, and (c) the Swingline Loans
after the Original Closing Date for general corporate purposes.
SECTION 3.13 TAXES. Each Company has (a) timely filed or caused to
be timely filed all federal Tax Returns and all state, local and foreign Tax
Returns or materials required to have been filed by it and all such Tax Returns
are true and correct in all material respects and (b) duly and timely paid,
collected or remitted or caused to be duly and timely paid, collected or
remitted all Taxes (whether or not shown on any Tax Return) due and payable,
collectible or remittable by it and all assessments received by it, except Taxes
(i) that are being contested in good faith by appropriate proceedings and for
which such Company has set aside on its books adequate reserves in accordance
with GAAP and (ii) which could not, individually or in the aggregate, have a
Material Adverse Effect. Each Company has made adequate provision in accordance
with GAAP for all Taxes not yet due and payable. Each Company is unaware of any
proposed or pending tax assessments, deficiencies or audits that could be
reasonably expected to, individually or in the aggregate, result in a Material
Adverse Effect. No Company has ever been a party to any understanding or
arrangement constituting a "tax shelter" within the meaning of Section 6111(c),
Section 6111(d) or Section 6662(d)(2)(C)(iii) of the Code, or has ever
"participated" in a "reportable transaction" within the meaning of Treasury
Regulation Section 1.6011-4, except as could not be reasonably expected to,
individually or in the aggregate, result in a Material Adverse Effect.
SECTION 3.14 NO MATERIAL MISSTATEMENTS. No information, report,
financial statement, certificate, Borrowing Request, LC Request, exhibit or
schedule furnished by or on behalf of any Company to the Administrative Agent or
any Lender in connection with the negotiation of any Loan Document or included
therein or delivered pursuant thereto (including the Confidential Information
Memorandum and the Second Confidential Information Memorandum), taken as a
whole, contained or contains any material misstatement of fact or omitted or
omits to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were or are made, not misleading
as of the date such information is dated or certified; provided that to the
extent any such information, report, financial statement, exhibit or schedule
was based upon or constitutes a forecast or projection, each Company represents
only that it acted in good faith and utilized reasonable assumptions and due
care in the preparation of such information, report, financial statement,
exhibit or schedule.
SECTION 3.15 LABOR MATTERS. As of the date hereof and the Original
Closing Date, there are no strikes, lockouts or slowdowns against any Company
pending or, to the knowledge of any Company, threatened. The hours worked by and
payments made to employees of any Company have not been in violation of the Fair
Labor Standards Act of 1938, as amended, or any other applicable federal, state,
local or foreign law dealing with such matters in any manner which could
reasonably be ex-
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pected to result in a Material Adverse Effect. All payments due from any
Company, or for which any claim may be made against any Company, on account of
wages and employee health and welfare insurance and other benefits, have been
paid or accrued as a liability on the books of such Company except where the
failure to do so could not reasonably be expected to result in a Material
Adverse Effect. The consummation of the Transactions and the Second Amendment
Transactions will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement
to which any Company is bound.
SECTION 3.16 SOLVENCY. Immediately after the consummation of the
Transactions to occur on the Original Closing Date, immediately after the
consummation of the Second Amendment Transactions on the Second Amendment
Effectiveness Date and immediately following the making of each Loan and after
giving effect to the application of the proceeds of each Loan, (a) the fair
value of the properties of each Loan Party (individually and on a consolidated
basis with its Subsidiaries) will exceed its debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of
the property of each Loan Party (individually and on a consolidated basis with
its Subsidiaries) will be greater than the amount that will be required to pay
the probable liability of its debts and other liabilities, subordinated,
contingent or otherwise, as such debts and other liabilities become absolute and
matured; (c) each Loan Party (individually and on a consolidated basis with its
Subsidiaries) will be able to pay its debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and
matured; and (d) each Loan Party (individually and on a consolidated basis with
its Subsidiaries) will not have unreasonably small capital with which to conduct
its business in which it is engaged as such business is now conducted and is
proposed to be conducted following the Second Amendment Effectiveness Date.
SECTION 3.17 EMPLOYEE BENEFIT PLANS.
(a) Except as could not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect, each Company and its ERISA
Affiliates is in compliance with the applicable provisions of ERISA and the Code
and the regulations and published interpretations thereunder. No ERISA Event has
occurred or is reasonably expected to occur that, when taken together with all
other such ERISA Events, could reasonably be expected to result in a Material
Adverse Effect or the imposition of a Lien on any of the property of any
Company. The present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than $10.0
million the fair market value of the property of all such underfunded Plans.
Except as set forth on Schedule 3.17, using actuarial assumptions and
computation methods consistent with subpart I of subtitle E of Title IV of
ERISA, the aggregate liabilities of each Company or its ERISA Affiliates to all
Multiemployer Plans in the event of a complete withdrawal therefrom, as of the
close of the most recent fiscal year of each such Multiemployer Plan, could not
reasonably be expected to result in a Material Adverse Effect.
(b) Except as could not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect, to the extent applicable, each
Foreign Plan has been maintained in substantial compliance with its terms and
with the requirements of any and all applicable laws, statutes, rules,
regulations and orders and has been maintained, where required, in good standing
with applicable regulatory authorities. No Company has incurred any material
unpaid obligation in connection with the termination of or withdrawal from any
Foreign Plan. Except as could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect, the present value of the accrued
benefit liabilities (whether or not vested) under each Foreign Plan which is
funded, determined as of the end of the most recently ended fiscal year of the
respective Company on the basis of actuarial assumptions, each of which
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is reasonable, did not exceed the current value of the property of such Foreign
Plan, and for each Foreign Plan which is not funded, the obligations of such
Foreign Plan are properly accrued.
SECTION 3.18 ENVIRONMENTAL MATTERS.
(a) Except as set forth in Schedule 3.18 and except as, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect:
(i) The Companies and their businesses, operations and Real Property
are and in the last six years have been in compliance with, and the
Companies have no liability under, Environmental Law;
(ii) The Companies have obtained all Environmental Permits required
for the conduct of their businesses and operations, and the ownership,
operation and use of their property, under Environmental Law, all such
Environmental Permits are valid and in good standing;
(iii) There has been no Release or threatened Release of Hazardous
Material on, at, under or from any Real Property or facility presently or
formerly owned, leased or operated by the Companies or their predecessors
in interest that could result in liability by the Companies under
Environmental Law;
(iv) There is no Environmental Claim pending or, to the knowledge of
the Companies, threatened against the Companies, or relating to the Real
Property currently or formerly owned, leased or operated by the Companies
or relating to the operations of the Companies, and to the knowledge of
the Companies, there are no actions, activities, circumstances,
conditions, events or incidents that could form the basis of such an
Environmental Claim;
(v) No person with an indemnity or contribution obligation to the
Companies relating to compliance with or liability under Environmental Law
is in default with respect to such obligation; and
(vi) No Company is obligated to perform any action or otherwise
incur any expense under Environmental Law pursuant to any order, decree,
judgment or agreement by which it is bound or has assumed by contract or
agreement, and no Company is conducting or financing any Response pursuant
to any Environmental Law with respect to any Real Property or any other
location.
(b) Except as set forth in Schedule 3.18:
(i) No Real Property or facility owned, operated or leased by the
Companies and, to the knowledge of the Companies, no Real Property or
facility formerly owned, operated or leased by the Companies or any of
their predecessors in interest is (i) listed or proposed for listing on
the National Priorities List promulgated pursuant to CERCLA or (ii) listed
on the Comprehensive Environmental Response, Compensation and Liability
Information System promulgated pursuant to CERCLA or (iii) included on any
similar list maintained by any Governmental Authority including any such
list relating to petroleum;
(ii) No Lien has been recorded or, to the knowledge of any Company,
threatened under any Environmental Law with respect to any Real Property
or property of the Companies;
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(iii) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby will not require
any notification, registration, filing, reporting, disclosure,
investigation, remediation or cleanup pursuant to any Governmental Real
Property Disclosure Requirements or any other Environmental Law; and
(iv) The Companies have made available to the Lenders all material
records and files in the possession, custody or control of, or otherwise
reasonably available to, the Companies concerning compliance with or
liability under Environmental Law, including those concerning the
existence of Hazardous Material at Real Property or facilities currently
or formerly owned, operated, leased or used by the Companies.
SECTION 3.19 INSURANCE. Schedule 3.19 sets forth a true, complete
and correct description of all insurance maintained by each Company as of the
Second Amendment Effectiveness Date. All insurance maintained by the Companies
is in full force and effect, all premiums have been duly paid, no Company has
received notice of violation or cancellation thereof, the Premises, and the use,
occupancy and operation thereof, comply in all material respects with all
Insurance Requirements, and there exists no material default under any Insurance
Requirement. Each Company has insurance in such amounts and covering such risks
and liabilities as are customary for companies of a similar size engaged in
similar businesses in similar locations.
SECTION 3.20 SECURITY DOCUMENTS.
(a) The U.S. Security Agreement is effective to create in favor of
the Collateral Agent for the benefit of the Secured Parties, legal, valid and
enforceable Liens on, and security interests in, the U.S. Security Agreement
Collateral and (i) when financing statements and other filings in appropriate
form are filed in the offices specified on Schedule 7 to the Perfection
Certificate and (ii) upon the taking of possession or control by the Collateral
Agent of the U.S. Security Agreement Collateral with respect to which a security
interest may be perfected only by possession or control (which possession or
control shall be given to the Collateral Agent to the extent possession or
control by the Collateral Agent is required by the U.S. Security Agreement), the
Liens created by the U.S. Security Agreement shall constitute fully perfected
Liens on, and security interests in, all right, title and interest of the
grantors thereunder in the U.S. Security Agreement Collateral (other than (A)
the Intellectual Property Collateral (as defined in the U.S. Security Agreement)
and (B) such U.S. Security Agreement Collateral in which a security interest
cannot be perfected under the UCC as in effect at the relevant time in the
relevant jurisdiction), in each case subject to no Liens other than Permitted
Collateral Liens.
(b) The Canadian Security Agreement is effective to create in favor
of the Collateral Agent for the benefit of the Canadian Secured Parties, legal,
valid and enforceable Liens on, and security interests in, the Canadian Security
Agreement Collateral and (i) when financing statements and other filings in
appropriate form are filed in the offices specified on Schedule 7 to the
Perfection Certificate and (ii) upon the taking of possession or control by the
Collateral Agent of the Canadian Security Agreement Collateral with respect to
which a security interest may be perfected only by possession or control (which
possession or control shall be given to the Collateral Agent to the extent
possession or control by the Collateral Agent is required by the Canadian
Security Agreement), the Liens created by the Canadian Security Agreement shall
constitute fully perfected Liens on, and security interests in, all right, title
and interest of the grantors thereunder in the Canadian Security Agreement
Collateral (other than (A) the Intellectual Property Collateral (as defined in
the Canadian Security Agreement) and (B) such Canadian Security Agreement
Collateral in which a security interest cannot be perfected under the PPSA as in
effect at the relevant time in the relevant jurisdiction), in each case subject
to no Liens other than Permitted Collateral Liens.
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(c) When the U.S. Security Agreement or a short form thereof is
filed in the United States Patent and Trademark Office and the United States
Copyright Office, the Liens created by such U.S. Security Agreement shall
constitute fully perfected Liens on, and security interests in, all right, title
and interest of the grantors thereunder in the Intellectual Property Collateral
(as defined in such Security Agreement) in which a security interest may be
perfected under applicable U.S. law, in each case subject to no Liens other than
Permitted Collateral Liens.
(d) Each Mortgage granted by a U.S. Loan Party is effective to
create, in favor of the Collateral Agent, for its benefit and the benefit of the
Secured Parties, legal, valid and enforceable first priority Liens on, and
security interests in, all of such U.S. Loan Party's right, title and interest
in and to the U.S. Mortgaged Properties thereunder and the proceeds thereof,
subject only to Permitted Collateral Liens or other Liens acceptable to the
Collateral Agent, and when such Mortgages are filed in the offices specified on
Schedule 1.01(d) (or, in the case of any such Mortgage executed and delivered
after the date thereof in accordance with the provisions of Sections 5.10, 5.11
and 5.13, when such Mortgage is filed in the offices specified in the local
counsel opinion delivered with respect thereto in accordance with the provisions
of Sections 5.10, 5.11 and 5.13), such Mortgages shall constitute fully
perfected Liens on, and security interests in, all right, title and interest of
the Loan Parties in the U.S. Mortgaged Properties and the proceeds thereof, in
each case prior and superior in right to any other person, other than Liens
permitted by such Mortgage.
(e) Each Mortgage granted by a Canadian Loan Party is effective to
create, in favor of the Collateral Agent or its sub-agent, for its benefit and
the benefit of the Canadian Secured Parties, legal, valid and enforceable first
priority Liens on, and security interests in, all of such Canadian Loan Party's
right, title and interest in and to the Canadian Mortgaged Properties thereunder
and the proceeds thereof, subject only to Permitted Collateral Liens or other
Liens acceptable to the Collateral Agent, and when such Mortgages are filed in
the offices specified on Schedule 1.01(d) (or, in the case of any such Mortgage
executed and delivered after the date thereof in accordance with the provisions
of Sections 5.10 and 5.11, when such Mortgage is filed in the offices specified
in the local counsel opinion delivered with respect thereto in accordance with
the provisions of Sections 5.10 and 5.11), such Mortgages shall constitute fully
perfected Liens on, and security interests in, all right, title and interest of
the Loan Parties in the Canadian Mortgaged Properties and the proceeds thereof,
in each case prior and superior in right to any other person, other than Liens
permitted by such Mortgage.
(f) Each Security Document delivered pursuant to Sections 5.10, 5.11
and 5.13 will, upon execution and delivery thereof, be effective to create in
favor of the Collateral Agent, for the benefit of the applicable Secured
Parties, legal, valid and enforceable Liens on, and security interests in, all
of the Loan Parties' right, title and interest in and to the Collateral
thereunder, and when all appropriate filings or recordings are made in the
appropriate offices as may be required under applicable law, such Security
Document will constitute fully perfected Liens on, and security interests in,
all right, title and interest of the Loan Parties in such Collateral, in each
case subject to no Liens other than the applicable Permitted Collateral Liens.
SECTION 3.21 ACQUISITION DOCUMENTS; REPRESENTATIONS AND WARRANTIES
IN ACQUISITION AGREEMENT.
(a) Schedule 3.21 lists (i) each exhibit, schedule, annex or other
attachment to the Acquisition Agreement and (ii) each agreement, certificate,
instrument, letter or other document contemplated by the Acquisition Agreement
or any item referred to in clause (i) to be entered into, executed or delivered
or to become effective in connection with the Acquisition or otherwise entered
into, executed or delivered in connection with the Acquisition. The Lenders have
been furnished true and complete copies
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of each Acquisition Document to the extent executed and delivered on or prior to
the Original Closing Date.
(b) All representations and warranties of each Company set forth in
the Acquisition Agreement were true and correct in all material respects as of
the time such representations and warranties were made and shall be true and
correct in all material respects as of the Original Closing Date as if such
representations and warranties were made on and as of such date, unless stated
to relate to a specific earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of such earlier
date.
SECTION 3.22 ANTI-TERRORISM LAW.
(a) No Loan Party and, to the knowledge of the Loan Parties, none of
its Affiliates is in violation of any laws relating to terrorism or money
laundering ("ANTI-TERRORISM LAWS"), including Executive Order No. 13224 on
Terrorist Financing, effective September 24, 2001 (the "EXECUTIVE ORDER"), and
the Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56.
(b) No Loan Party and to the knowledge of the Loan Parties, no
Affiliate or broker or other agent of any Loan Party acting or benefiting in any
capacity in connection with the Loans is any of the following:
(i) a person that is listed in the annex to, or is otherwise subject
to the provisions of, the Executive Order;
(ii) a person owned or controlled by, or acting for or on behalf of,
any person that is listed in the annex to, or is otherwise subject to the
provisions of, the Executive Order;
(iii) a person with which any Lender is prohibited from dealing or
otherwise engaging in any transaction by any Anti-Terrorism Law;
(iv) a person that commits, threatens or conspires to commit or
supports "terrorism" as defined in the Executive Order; or
(v) a person that is named as a "specially designated national and
blocked person" on the most current list published by the U.S. Treasury
Department Office of Foreign Assets Control ("OFAC") at its official
website or any replacement website or other replacement official
publication of such list.
(c) No Loan Party and, to the knowledge of the Loan Parties, no
broker or other agent of any Loan Party acting in any capacity in connection
with the Loans (i) conducts any business or engages in making or receiving any
contribution of funds, goods or services to or for the benefit of any person
described in paragraph (b) above, (ii) deals in, or otherwise engages in any
transaction relating to, any property or interests in property blocked pursuant
to the Executive Order, or (iii) engages in or conspires to engage in any
transaction that evades or avoids, or has the purpose of evading or avoiding, or
attempts to violate, any of the prohibitions set forth in any Anti-Terrorism
Law.
SECTION 3.23 SUBORDINATION OF SENIOR SUBORDINATED NOTES. The
Obligations are "Senior Debt," the U.S. Guaranteed Obligations are "Guarantor
Senior Debt" and the Obligations and U.S. Guaranteed Obligations are "Designated
Senior Debt," in each case, within the meaning of the Senior Subordinated Note
Documents and the New Senior Subordinated Note Documents.
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SECTION 3.24 MW ACQUISITION DOCUMENTS; REPRESENTATIONS AND
WARRANTIES IN MW ACQUISITION AGREEMENT.
(a) Schedule 3.24 lists (i) each exhibit, schedule, annex or other
attachment to the MW Acquisition Agreement and (ii) each agreement, certificate,
instrument, letter or other document contemplated by the MW Acquisition
Agreement or any item referred to in clause (i) to be entered into, executed or
delivered or to become effective in connection with the MW Acquisition or
otherwise entered into, executed or delivered in connection with the MW
Acquisition. The Lenders have been furnished true and complete copies of each MW
Acquisition Document to the extent executed and delivered on or prior to the
Second Amendment Effectiveness Date.
(b) All representations and warranties of each Company set forth in
the MW Acquisition Agreement were true and correct in all material respects as
of the time such representations and warranties were made and shall be true and
correct in all material respects as of the Second Amendment Effectiveness Date
as if such representations and warranties were made on and as of such date,
unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date.
ARTICLEIV
CONDITIONS TO CREDIT EXTENSIONS
SECTION 4.01 CONDITIONS TO INITIAL CREDIT EXTENSION. The obligation
of each Lender and, if applicable, each Issuing Bank to fund the initial Credit
Extension requested to be made by it was subject to the prior or concurrent
satisfaction of each of the conditions precedent set forth in this Section 4.01.
(a) Loan Documents. All legal matters incident to this Agreement,
the Credit Extensions hereunder and the other Loan Documents shall be reasonably
satisfactory to the Lenders, to the Issuing Bank and to the Administrative Agent
and there shall have been delivered to the Administrative Agent an executed
counterpart of each of the Loan Documents and the Perfection Certificate.
(b) Corporate Documents. The Administrative Agent shall have
received:
(i) a certificate of the secretary or assistant secretary of each
Loan Party dated the Original Closing Date, certifying (A) that attached
thereto is a true and complete copy of each Organizational Document of
such Loan Party certified (to the extent applicable) as of a recent date
by the Secretary of State of the state of its organization, (B) that
attached thereto is a true and complete copy of resolutions duly adopted
by the Board of Directors of such Loan Party authorizing the execution,
delivery and performance of the Loan Documents to which such person is a
party and, in the case of each Borrower, the borrowings hereunder, and
that such resolutions have not been modified, rescinded or amended and are
in full force and effect and (C) as to the incumbency and specimen
signature of each officer executing any Loan Document or any other
document delivered in connection herewith on behalf of such Loan Party
(together with a certificate of another officer as to the incumbency and
specimen signature of the secretary or assistant secretary executing the
certificate in this clause (i));
(ii) a certificate as to the good standing of each Loan Party (in
so-called "long-form" if available) as of a recent date, from such
Secretary of State (or other applicable Governmental Authority); and
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(iii) such other documents as the Lenders, the Issuing Bank or the
Administrative Agent may reasonably request.
(c) Officers' Certificate. The Administrative Agent shall have
received a certificate, dated the Original Closing Date and signed by the chief
executive officer and the chief financial officer of U.S. Borrower, confirming
compliance with the conditions precedent set forth in this Section 4.01 and
Sections 4.02(b), (c) and (d).
(d) Financings and Other Transactions, Etc.
(i) The Transactions shall have been consummated or shall be
consummated simultaneously on the Original Closing Date, in each case in all
material respects in accordance with the terms hereof and the terms of the
Transaction Documents, without the waiver or amendment of any such terms not
approved by the Joint Lead Arrangers (such consent not to be unreasonably
withheld).
(ii) U.S. Borrower shall have received not less than $225.0 million
in gross proceeds from the issuance and sale of the Senior Subordinated Notes,
and the Senior Subordinated Note Agreement shall be in form and substance
reasonably satisfactory to the Lenders.
(iii) The Equity Financing shall have been consummated. The terms of
the Equity Financing and the Rollover Equity shall not require any payments or
other distributions of cash or property in respect thereof other than payments
in kind, or any purchases, redemptions or other acquisitions thereof for cash or
property other than payments in kind, in each case prior to the payment in full
of all obligations under the Loan Documents and the Senior Subordinated Notes,
except as permitted by the Loan Documents.
(iv) The Refinancing shall have been consummated in full to the
reasonable satisfaction of the Lenders with all liens in favor of the existing
lenders being unconditionally released; the Administrative Agent shall have
received a "pay-off" letter in form and substance reasonably satisfactory to the
Administrative Agent with respect to all debt being refinanced in the
Refinancing; and the Administrative Agent shall have received from any person
holding any Lien securing any such debt, such UCC termination statements,
mortgage releases, releases of assignments of leases and rents, releases of
security interests in Intellectual Property and other instruments, in each case
in proper form for recording, as the Administrative Agent shall have reasonably
requested to release and terminate of record the Liens securing such debt.
(e) Financial Statements, Pro Forma Balance Sheet; Projections. The
Lenders shall have received and shall be reasonably satisfied with the form and
substance of the financial statements described in Section 3.04(b) and with the
forecasts of the financial performance of Parent and its Subsidiaries.
(f) Indebtedness and Minority Interests. After giving effect to the
Transactions and the other transactions contemplated hereby, no Company shall
have outstanding any Indebtedness or preferred stock other than (i) the Loans
and Credit Extensions hereunder, (ii) the Senior Subordinated Notes, (iii) the
Indebtedness listed on Schedule 6.01(b), (iv) the Assumed Debt and (v)
Indebtedness owed to either Borrower or any Guarantor.
(g) Opinions of Counsel. The Administrative Agent shall have
received, on behalf of itself, the other Agents, the Arrangers, the Lenders and
the Issuing Bank, a favorable written opinion of (i) Paul Weiss, Rifkind,
Wharton & Garrison LLP, special counsel for the Loan Parties, substantially to
the effect set forth in Exhibit N-1, (ii) each local counsel listed on Schedule
4.01(g), substantially to the
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effect set forth in Exhibit N-2, and (iii) Bennett Jones LLP, Canadian counsel
for the Loan Parties, substantially to the effect set forth in Exhibit N-3, in
each case (A) dated the Original Closing Date and (B) addressed to the Agents,
the Issuing Bank and the Lenders, and (iii) a copy of each legal opinion
delivered under the other Transaction Documents, accompanied by reliance letters
from the party delivering such opinion authorizing the Agents, Lenders and the
Issuing Bank to rely thereon as if such opinion were addressed to them.
(h) Solvency Certificate. The Administrative Agent shall have
received a solvency certificate in the form of Exhibit O, dated the Original
Closing Date and signed by the treasurer or the chief financial officer of U.S.
Borrower.
(i) Requirements of Law. The Lenders shall be satisfied that Parent,
its Subsidiaries and the Transactions shall be in full compliance with all
material Requirements of Law, including Regulations T, U and X of the Board, and
shall have received reasonably satisfactory evidence of such compliance
reasonably requested by them.
(j) Consents. The Lenders shall be reasonably satisfied that all
requisite Governmental Authorities and third parties shall have approved or
consented to the Transactions, and there shall be no governmental or judicial
action, actual or threatened, that has or would have, singly or in the
aggregate, a reasonable likelihood of restraining, preventing or imposing
burdensome conditions on the Transactions or the other transactions contemplated
hereby.
(k) Litigation. There shall be no litigation, public or private, or
administrative proceedings, governmental investigation or other legal or
regulatory developments, actual or threatened, that, singly or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect, or could
materially and adversely affect the ability of Holdings, Parent, U.S. Borrower
and their respective Subsidiaries to fully and timely perform their respective
obligations under the Transaction Documents, or the ability of the parties to
consummate the financings contemplated hereby or the other Transactions.
(l) Sources and Uses. The sources and uses of the Loans shall be as
set forth in Section 3.12.
(m) Fees. The Arrangers and the Administrative Agent shall have
received all Fees and other amounts due and payable on or prior to the Original
Closing Date, including reimbursement or payment of all out-of-pocket expenses
(including the legal fees and expenses of Cahill Gordon & Reindel LLP, special
counsel to the Agents, and the fees and expenses of any local counsel, foreign
counsel, appraisers, consultants and other advisors) required to be reimbursed
or paid by either Borrower hereunder or under any other Loan Document.
(n) Personal Property Requirements. The Collateral Agent shall have
received:
(i) all certificates, agreements or instruments representing or
evidencing the Securities Collateral accompanied by instruments of
transfer and stock powers undated and endorsed in blank;
(ii) the Intercompany Note executed by and among Parent and each of
its Subsidiaries (other than Canadian Borrower) and the Canadian
Intercompany Note executed by and among Canadian Borrower, Parent and each
of its Subsidiaries, each accompanied by instruments of transfer undated
and endorsed in blank;
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(iii) all other certificates, agreements, including control
agreements, or instruments necessary to perfect the Collateral Agent's
security interest in all Chattel Paper, all Instruments, all Deposit
Accounts and all Investment Property of each Loan Party (as each such term
is defined in either Security Agreement and to the extent required by
either Security Agreement);
(iv) financing statements in appropriate form for filing under the
UCC and PPSA, filings with the United States Patent and Trademark Office,
and the United States Copyright Office and such other documents under
applicable Requirements of Law in each jurisdiction as may be necessary or
appropriate or, in the opinion of the Collateral Agent, desirable to
perfect the Liens created, or purported to be created, by the Security
Documents under the laws of the United States, Canada or any State or
Province thereof and, with respect to all UCC financing statements
required to be filed pursuant to the Loan Documents, evidence satisfactory
to the Administrative Agent that U.S. Borrower has retained, at its sole
cost and expense, a service provider acceptable to the Administrative
Agent for the tracking of all such financing statements and notification
to the Administrative Agent, of, among other things, the upcoming lapse or
expiration thereof;
(v) certified copies of UCC, PPSA, United States Patent and
Trademark Office, United States Copyright Office, tax and judgment lien
searches, bankruptcy and pending lawsuit searches or equivalent reports or
searches, each of a recent date listing all effective financing
statements, lien notices or comparable documents that name any Loan Party
as debtor and that are filed in those state and county jurisdictions in
which any property of any Loan Party is located and the state and county
jurisdictions in which any Loan Party is organized or maintains its
principal place of business and such other searches that the Collateral
Agent deems necessary or appropriate, none of which encumber the
Collateral covered or intended to be covered by the Security Documents
(other than Permitted Collateral Liens or any other Liens acceptable to
the Collateral Agent);
(vi) with respect to each location set forth on Schedule
4.01(n)(vi), a Landlord Access Agreement or Bailee Letter, as applicable;
provided that no such Landlord Access Agreement shall be required with
respect to any Real Property that could not be obtained after the Loan
Party that is the lessee or owner of the inventory or other personal
property Collateral stored with the bailee thereof, as applicable, shall
have used all commercially reasonable efforts to do so; and
(vii) evidence acceptable to the Collateral Agent of payment or
arrangements for payment by the Loan Parties of all applicable recording
taxes, fees, charges, costs and expenses required for the recording of the
Security Documents.
(o) Real Property Requirements. The Collateral Agent shall have
received:
(i) a Mortgage, encumbering each Mortgaged Property in favor of the
Collateral Agent, for the benefit of the applicable Secured Parties, duly
executed and acknowledged by each Loan Party that is the owner of or
holder of any interest in such Mortgaged Property, and otherwise in form
for recording in the recording office of each applicable political
subdivision where each such Mortgaged Property is situated, together with
such certificates, affidavits, questionnaires or returns as shall be
required in connection with the recording or filing thereof to create a
lien under applicable law, and such financing statements and any other
instruments necessary to grant a mortgage lien under the laws of any
applicable jurisdiction, all of which shall be in form and substance
reasonably satisfactory to Collateral Agent;
(ii) with respect to each Mortgaged Property, such consents,
approvals, amendments, supplements, estoppels, tenant subordination
agreements or other instruments as necessary to
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consummate the Transactions or as shall reasonably be deemed necessary by
the Collateral Agent in order for the owner or holder of the fee or
leasehold interest constituting such Mortgaged Property to grant the Lien
contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgage, a policy of title insurance (or
marked up title insurance commitment having the effect of a policy of
title insurance) insuring the Lien of such Mortgage as a valid first
mortgage Lien on the Mortgaged Property and fixtures described therein in
the amount equal to not less than 115% of the fair market value of such
Mortgaged Property and fixtures, which fair market value is set forth on
Schedule 4.01(o)(iii), which policy (or such marked-up commitment) (each,
a "TITLE POLICY") shall (A) be issued by the Title Company, (B) to the
extent necessary, include such reinsurance arrangements (with provisions
for direct access, if necessary) as shall be reasonably acceptable to the
Collateral Agent, (C) contain a "tie-in" or "cluster" endorsement, if
available under applicable law (i.e., policies which insure against losses
regardless of location or allocated value of the insured property up to a
stated maximum coverage amount), (D) have been supplemented by such
endorsements (or where such endorsements are not available, opinions of
special counsel, architects or other professionals reasonably acceptable
to the Collateral Agent) as shall be reasonably requested by the
Collateral Agent (including endorsements on matters relating to usury,
first loss, last dollar, zoning, contiguity, revolving credit, doing
business, non-imputation, public road access, survey, variable rate,
environmental lien, subdivision, separate tax lot revolving credit, and
so-called comprehensive coverage over covenants and restrictions), and (E)
contain no exceptions to title other than Permitted Collateral Liens and
exceptions acceptable to the Collateral Agent;
(iv) with respect to each Mortgaged Property, such affidavits,
certificates, information (including financial data) and instruments of
indemnification (including a so-called "gap" indemnification) as shall be
required to induce the Title Company to issue the Title Policy/ies and
endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of
payment by U.S. Borrower of all Title Policy premiums, search and
examination charges, escrow charges and related charges, mortgage
recording taxes, fees, charges, costs and expenses required for the
recording of the Mortgages and issuance of the Title Policies referred to
above;
(vi) with respect to each Real Property or Mortgaged Property,
copies of all Leases in which U.S. Borrower or any Subsidiary holds the
lessor's interest or other agreements relating to possessory interests, if
any. To the extent any of the foregoing affect any Mortgaged Property,
such agreement shall be subordinate to the Lien of the Mortgage to be
recorded against such Mortgaged Property, either expressly by its terms or
pursuant to a subordination, non-disturbance and attornment agreement, and
shall otherwise be acceptable to the Collateral Agent;
(vii) with respect to each Mortgaged Property, each Company shall
have made all notifications, registrations and filings, to the extent
required by, and in accordance with, all Governmental Real Property
Disclosure Requirements applicable to such Mortgaged Property; and
(viii) Surveys with respect to each Mortgaged Property.
(p) Insurance. The Administrative Agent shall have received a copy
of, or a certificate as to coverage under, the insurance policies required by
Section 5.04 and the applicable provisions of the Security Documents, each of
which shall be endorsed or otherwise amended to include a "standard" or "New
York" lender's loss payable or mortgagee endorsement (as applicable) and shall
name the Collat-
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eral Agent, on behalf of the Secured Parties, as additional insured, in form and
substance satisfactory to the Administrative Agent.
(q) No Material Change. No change shall have occurred since October
4, 2003, and no additional information shall be disclosed to or discovered by
the Administrative Agent (including, without limitation, information contained
in any review or report required to be provided to it in connection with this
Agreement), which the Administrative Agent determines has had or could
reasonably be expected to have a material adverse effect on the business,
results of operations, condition (financial or otherwise), assets or liabilities
of Parent, U.S. Borrower and their respective subsidiaries taken as a whole.
SECTION 4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of
each Lender and each Issuing Bank to make any Credit Extension (including the
initial Credit Extension and any Credit Extension on the Second Amendment
Effectiveness Date) shall be subject to, and to the satisfaction of, each of the
conditions precedent set forth below.
(a) Notice. The Administrative Agent shall have received a Borrowing
Request as required by Section 2.03 (or such notice shall have been deemed
given in accordance with Section 2.03) if Loans are being requested or, in
the case of the issuance, amendment, extension or renewal of a Letter of
Credit, the Issuing Bank and the Administrative Agent shall have received
a notice requesting the issuance, amendment, extension or renewal of such
Letter of Credit as required by Section 2.18(b) or, in the case of the
Borrowing of a Swingline Loan, the Swingline Lender and the Administrative
Agent shall have received a U.S. Borrowing Request as required by Section
2.17(b).
(b) No Default. The Borrowers and each other Loan Party shall be in
compliance in all material respects with all the terms and provisions set
forth herein and in each other Loan Document on its part to be observed or
performed, and, at the time of and immediately after giving effect to such
Credit Extension and the application of the proceeds thereof, no Default
shall have occurred and be continuing on such date.
(c) Representations and Warranties. Each of the representations and
warranties made by any Loan Party set forth in Article III hereof (other
than, in the case of the initial Credit Extension and the Credit Extension
on the Second Amendment Effectiveness Date only, Section 3.04(f) or in any
other Loan Document shall be true and correct in all material respects
(except that any representation and warranty that is qualified as to
"materiality" or "Material Adverse Effect" shall be true and correct in
all respects) on and as of the date of such Credit Extension with the same
effect as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date.
(d) No Legal Bar. No order, judgment or decree of any Governmental
Authority shall purport to restrain any Lender from making any Loans to be
made by it. No injunction or other restraining order shall have been
issued, shall be pending or noticed with respect to any action, suit or
proceeding seeking to enjoin or otherwise prevent the consummation of, or
to recover any damages or obtain relief as a result of, the transactions
contemplated by this Agreement or the making of Loans hereunder.
Each of the delivery of a Borrowing Request or notice requesting the
issuance, amendment, extension or renewal of a Letter of Credit and the
acceptance by a Borrower of the proceeds of such Credit Extension shall
constitute a representation and warranty by such Borrower and each other Loan
Party that on the date of such Credit Extension (both immediately before and
after giving effect to such Credit Extension and the application of the proceeds
thereof) the conditions contained in this Section 4.02
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have been satisfied. Each Borrower shall provide such information (including
calculations in reasonable detail of the covenants in Section 6.10) as the
Administrative Agent may reasonably request to confirm that the conditions in
this Section 4.02 have been satisfied.
SECTION 4.03 CONDITIONS TO EFFECTIVENESS OF THE SECOND AMENDMENT AND
RESTATEMENT. The effectiveness of this Agreement shall be subject to, and occur
upon the date of (the "SECOND AMENDMENT EFFECTIVENESS DATE"), the satisfaction
of each of the conditions precedent set forth below.
(a) Financings and Other Second Amendment Transactions, Etc. (i) The
Second Amendment Transactions shall have been consummated or shall be
consummated simultaneously on the Second Amendment Effectiveness Date, in each
case in all material respects in accordance with the terms hereof and the terms
of the Second Amendment Transaction Documents, without the waiver or amendment
of any such terms unless approved by the Joint Lead Arrangers (such approval not
to be unreasonably withheld).
(ii) U.S. Borrower shall have received not less than $135.0 million
in gross proceeds from the issuance and sale of the New Senior Subordinated
Notes, and the New Senior Subordinated Note Agreement (and the other
documentation relating to the issuance of the New Senior Subordinated Notes)
shall be in form and substance reasonably satisfactory to the Lenders (it being
understood that any New Senior Subordinated Notes issued under the indenture
governing the Senior Subordinated Notes with covenants and defaults
substantially similar to the Senior Subordinated Notes are satisfactory to the
Lenders).
(iii) The Supplemental Financing shall have been consummated. The
terms of the Supplemental Financing and the Supplemental Rollover Equity shall
not require any payments or other distributions of cash or property in respect
thereof other than payments in kind, or any purchases, redemptions or other
acquisitions thereof for cash or property other than payments in kind, in each
case prior to the payment in full of all obligations under the Loan Documents,
the Senior Subordinated Notes and the New Senior Subordinated Notes except as
permitted by the Loan Documents.
(iv) The MW Refinancing shall have been consummated in full to the
reasonable satisfaction of the Joint Lead Arrangers with all liens in favor of
the applicable existing lenders to MW and its Subsidiaries being unconditionally
released; the Administrative Agent shall have received a "pay-off" letter in
form and substance reasonably satisfactory to the Administrative Agent with
respect to all debt being refinanced in the MW Refinancing; and the
Administrative Agent shall have received from any person holding any Lien
securing any such debt, such UCC termination statements, mortgage releases,
releases of assignments of leases and rents, releases of security interests in
Intellectual Property and other instruments, in each case in proper form for
recording, as the Administrative Agent shall have reasonably requested, to
release and terminate of record the Liens securing such debt.
(b) Indebtedness and Minority Interests. After giving effect to the
Second Amendment Transactions and the other transactions contemplated hereby, no
Company shall have outstanding any Indebtedness or preferred stock other than
(i) the Loans and Credit Extensions hereunder, (ii) the Senior Subordinated
Notes, (iii) the New Senior Subordinated Notes, (iv) the Supplemental Financing,
(v) Indebtedness permitted under the Original Credit Agreement and (vi)
Indebtedness owed to either Borrower or any Guarantor.
(c) Opinions of Counsel. The Administrative Agent shall have
received, on behalf of itself, the other Agents, the Arrangers, the Lenders and
the Issuing Bank, (x) a favorable written opinion of (i) Paul Weiss, Rifkind,
Wharton & Garrison LLP, special counsel for the Loan Parties, substan-
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tially to the effect set forth in Exhibit N-1 modified as appropriate for the
Second Amendment Transactions, (ii) each local counsel listed on Schedule
4.01(g), substantially to the effect set forth in Exhibit N-2 modified as
appropriate for the Second Amendment Transactions, and (iii) Bennett Jones LLP,
Canadian counsel for the Loan Parties substantially to the effect set forth in
Exhibit N-3 modified as appropriate for the Second Amendment Transactions, in
each case (A) dated the Second Amendment Effectiveness Date and (B) addressed to
the Agents, the Issuing Bank and the Lenders, and (y) a copy of each legal
opinion delivered under the other Second Amendment Transaction Documents,
accompanied by reliance letters from the party delivering such opinion
authorizing the Agents, Lenders and the Issuing Bank to rely thereon as if such
opinion were addressed to them.
(d) Solvency Certificate. The Administrative Agent shall have
received a solvency certificate in the form of Exhibit O, dated the Second
Amendment Effectiveness Date and signed by the treasurer or the chief financial
officer of U.S. Borrower.
(e) Requirements of Law. The Lenders shall be satisfied that Parent,
its Subsidiaries and the Second Amendment Transactions shall be in full
compliance with all material Requirements of Law, including Regulations T, U and
X of the Board, and shall have received reasonably satisfactory evidence of such
compliance reasonably requested by them.
(f) Consents. The Lenders shall be reasonably satisfied that all
requisite Governmental Authorities and third parties shall have approved or
consented to the Second Amendment Transactions, and there shall be no
governmental or judicial action, actual or threatened, that has or would have,
singly or in the aggregate, a reasonable likelihood of restraining, preventing
or imposing burdensome conditions on the Second Amendment Transactions or the
other transactions contemplated hereby.
(g) Litigation. There shall be no litigation, public or private, or
administrative proceedings, governmental investigation or other legal or
regulatory developments, actual or threatened, that, singly or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect, or could
materially and adversely affect the ability of Holdings, Parent, U.S. Borrower
and their respective Subsidiaries to fully and timely perform their respective
obligations under the Second Amendment Transaction Documents, or the ability of
the parties to consummate the financings contemplated hereby or by the other
Second Amendment Transactions.
(h) Sources and Uses. The sources and uses of the Loans shall be as
set forth in Section 3.12.
(i) Fees. The Arrangers and the Administrative Agent shall have
received all Fees and other amounts due and payable on or prior to the Second
Amendment Effectiveness Date, including reimbursement or payment of all
out-of-pocket expenses (including the reasonable legal fees and expenses of
Cahill Gordon & Reindel LLP, special counsel to the Agents, and the fees and
expenses of any local counsel and foreign counsel) required to be reimbursed or
paid by either Borrower hereunder, under any other Loan Document or under the
Fee Letter.
(j) Collateral Requirements. (A) The Borrowers shall have complied
with Section 5.10(b) and (c) with respect to the MW Acquisition (provided that
all actions required to be taken under Sections 5.10(b) and (c) shall have been
taken on or prior to the Second Amendment Effectiveness Date without giving
effect to the 30-day period referred to in such Sections); (B) the Collateral
Agent shall have received financing statements in appropriate form for filing
under the UCC and PPSA, filings with the United States Patent and Trademark
Office and the United States Copyright Office and such other documents under
applicable Requirements of Law in each jurisdiction as may be necessary or
appropriate or, in the opinion of the Collateral Agent, desirable to perfect the
Liens created, or purported to
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be created, by the Security Documents under the laws of the United States,
Canada or any State or Province thereof; (C) the Collateral Agent shall have
received the Second Amendment Perfection Certificate Supplement (together with
all schedules thereto); (D) the Borrowers shall have performed such other lien
searches in relevant jurisdictions with respect to Parent and its Subsidiaries
as the Collateral Agent may reasonably request; and (E) with respect to any
property which has been or will be the subject of a Permitted Sale and Leaseback
Transaction on or prior to the Second Amendment Effectiveness Date and will not
be the subject of a Mortgage on the Second Amendment Effectiveness Date, the
Borrowers shall have delivered to the Collateral Agent consents to a Mortgage
thereon from the lessor or prospective lessor thereof that are reasonably
satisfactory to the Collateral Agent.
(k) Insurance. The Administrative Agent shall have received a copy
of, or a certificate as to coverage under, the insurance policies required by
Section 5.04 and the applicable provisions of the Security Documents, each of
which shall be endorsed or otherwise amended to include a "standard" or "New
York" lender's loss payable or mortgagee endorsement (as applicable) and shall
name the Collateral Agent, on behalf of the Secured Parties, as additional
insured, in form and substance satisfactory to the Administrative Agent.
(l) No Material Change. No change shall have occurred since March
31, 2004, and no additional information shall be disclosed to or discovered by
the Administrative Agent (including, without limitation, information contained
in any review or report required to be provided to it in connection with this
Agreement), which the Administrative Agent determines has had or could
reasonably be expected to have a material adverse effect on the business,
results of operations, condition (financial or otherwise), assets or liabilities
of Parent, U.S. Borrower, MW and their respective subsidiaries taken as a whole.
(m) Authorization. The Administrative Agent shall have received
evidence satisfactory to it that this amendment and restatement shall have been
approved by the Required Lenders and a majority of the Existing U.S. Term Loan
Lenders in accordance with the provisions of Section 11.02(b).
(n) Corporate Documents. The Administrative Agent shall have
received:
(i) a certificate of the secretary or assistant secretary of each
Loan Party dated the Second Amendment Effectiveness Date, certifying (A)
that attached thereto is a true and complete copy of each Organizational
Document of such Loan Party certified (to the extent applicable) as of a
recent date by the Secretary of State of the state of its organization,
(B) that attached thereto is a true and complete copy of resolutions duly
adopted by the Board of Directors of such Loan Party authorizing the
execution, delivery and performance of the Loan Documents to which such
person is a party and, in the case of each Borrower, the borrowings
hereunder, and that such resolutions have not been modified, rescinded or
amended and are in full force and effect and (C) as to the incumbency and
specimen signature of each officer executing any Loan Document or any
other document delivered in connection herewith on behalf of such Loan
Party (together with a certificate of another officer as to the incumbency
and specimen signature of the secretary or assistant secretary executing
the certificate in this clause (i));
(ii) a certificate as to the good standing of each Loan Party (in
so-called "long-form" if available) as of a recent date, from such
Secretary of State (or other applicable Governmental Authority); and
(iii) such other documents as the Administrative Agent may
reasonably request.
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(o) Officers' Certificate. The Administrative Agent shall have
received a certificate, dated the Second Amendment Effectiveness Date and signed
by the chief executive officer and the chief financial officer of U.S. Borrower,
confirming compliance with the conditions precedent set forth in this Section
4.03 and Sections 4.02(b), (c) and (d).
ARTICLE V
AFFIRMATIVE COVENANTS
Each Loan Party warrants, covenants and agrees with each Lender that
so long as this Agreement shall remain in effect and until the Commitments have
been terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under any Loan Document shall have been paid
in full and all Letters of Credit have been canceled or have expired and all
amounts drawn thereunder have been reimbursed in full, unless the Required
Lenders shall otherwise consent in writing, each Loan Party will, and will cause
each of its Subsidiaries to:
SECTION 5.01 FINANCIAL STATEMENTS, REPORTS, ETC. Furnish to the
Administrative Agent and each Lender:
(a) Annual Reports. As soon as available and in any event within 90
days after the end of each fiscal year (but no later than the date on
which Parent would be required to file a Form 10-K under the Exchange Act
if it were subject to Section 15 and 13(d) of the Exchange Act), (i) the
consolidated balance sheet of Parent as of the end of such fiscal year and
related consolidated statements of income, cash flows and stockholders'
equity for such fiscal year, in comparative form with such financial
statements as of the end of, and for, the preceding fiscal year, and notes
thereto (including a note with a consolidating balance sheet and
statements of income and cash flows separating out Parent, U.S. Borrower
and the Subsidiaries), all prepared in accordance with Regulation S-X and
accompanied by an opinion of Ernst & Young LLP or other independent public
accountants of recognized national standing reasonably satisfactory to the
Administrative Agent (which opinion shall not be qualified as to scope or
contain any going concern or other qualification), stating that such
financial statements fairly present, in all material respects, the
consolidated financial condition, results of operations and cash flows of
Parent as of the dates and for the periods specified in accordance with
GAAP and (ii) a management's discussion and analysis of the financial
condition and results of operations for such fiscal year, including a
discussion of sales by product category, as compared to the previous
fiscal year and budgeted amounts (it being understood that the information
required by clause (i) may be furnished in the form of a Form 10-K);
(b) Quarterly Reports. 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 (but no later than the date on which Parent would be required
to file a Form 10-Q under the Exchange Act if it were subject to Section
15 and 13(d) of the Exchange Act), (i) the consolidated balance sheet of
Parent as of the end of such fiscal quarter and related consolidated
statements of income and cash flows for such fiscal quarter and for the
then elapsed portion of the fiscal year, in comparative form with the
consolidated statements of income and cash flows for the comparable
periods in the previous fiscal year, and notes thereto (including a note
with a consolidating balance sheet and statements of income and cash flows
separating out Parent, U.S. Borrower and the Subsidiaries), all prepared
in accordance with Regulation S-X under the Securities Act and accompanied
by a certificate of a Financial Officer stating that such financial
statements fairly present, in all material respects, the consolidated
financial condition, results of operations and cash flows of Parent as of
the date and for the periods specified in accordance with GAAP
consistently applied, and on a basis consistent
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with audited financial statements referred to in clause (a) of this
Section, subject to normal year-end audit adjustments and (ii) a
management's discussion and analysis of the financial condition and
results of operations for such fiscal quarter and the then elapsed portion
of the fiscal year, including a discussion of sales by product category,
as compared to the comparable periods in the previous fiscal year and
budgeted amounts (it being understood that the information required by
clause (i) may be furnished in the form of a Form 10-Q);
(c) Financial Officer's Certificate. (i) Concurrently with any
delivery of financial statements under Section 5.01(a) or (b) above, a
Compliance Certificate certifying that no Default has occurred or, if such
a Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto; (ii)
concurrently with any delivery of financial statements under Section 5.01
(a) or (b) above, a Compliance Certificate setting forth computations in
reasonable detail satisfactory to the Administrative Agent demonstrating
compliance with the covenants contained in Sections 6.07(f) and 6.10
(including the aggregate amount of Excluded Issuances for such period and
the uses therefor) and, in the case of Section 5.01(a) above, setting
forth U.S. Borrower's calculation of Excess Cash Flow; and (iii) in the
case of Section 5.01(a) above, a report of the accounting firm opining on
or certifying such financial statements stating that in the course of its
regular audit of the financial statements of Parent and its Subsidiaries,
which audit was conducted in accordance with GAAP, such accounting firm
obtained no knowledge that any Default insofar as it relates to financial
or accounting matters has occurred or, if in the opinion of such
accounting firm such a Default has occurred, specifying the nature and
extent thereof;
(d) Financial Officer's Certificate Regarding Collateral.
Concurrently with any delivery of financial statements under Section
5.01(a) above, a certificate of a Financial Officer setting forth the
information required pursuant to the Perfection Certificate Supplement or
confirming that there has been no change in such information since the
date of the Perfection Certificate, Second Amendment Perfection
Certificate or latest Perfection Certificate Supplement;
(e) Public Reports. Promptly after the same become publicly
available, copies of all periodic and other reports, proxy statements and
other materials filed by any Company with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or
distributed to holders of its Indebtedness pursuant to the terms of the
documentation governing such Indebtedness (or any trustee, agent or other
representative therefor), as the case may be;
(f) Management Letters. Promptly after the receipt thereof by any
Company, a copy of any final "management letter" received by any such
person from its certified public accountants and the management's
responses thereto;
(g) Budgets. No later than (x) 60 days after the first day of the
next fiscal year of Parent and U.S. Borrower and (y) 45 days after the
first day of each other fiscal year of Parent and U.S. Borrower, a budget
in form reasonably satisfactory to the Administrative Agent (including
budgeted statements of income for each of U.S. Borrower's business units
and sources and uses of cash and balance sheets and a projection of sales
by product category) prepared by each of Parent and U.S. Borrower,
respectively, for each quarter of such fiscal year prepared in summary
form, in each case, of Parent, Borrower and their respective subsidiaries,
with appropriate presentation and discussion of the principal assumptions
upon which such budgets are based, accompanied by the statement of a
Financial Officer of each of Parent and U.S. Borrower to the effect that
the budget of Parent and U.S. Borrower, respectively, is a reasonable
estimate for the period covered thereby and, promptly when available, any
significant revisions of such budget;
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(h) Organization. Within 90 days after the close of each fiscal year
of Parent, Parent shall deliver an accurate organization chart as required
by Section 3.07(c), or confirm that there are no changes to Schedule
3.07(c);
(i) Organizational Documents. Promptly provide copies of any
Organizational Documents that have been amended or modified in accordance
with the terms hereof and deliver a copy of any notice of default given or
received by any Company under any Organizational Document within 15 days
after such Company gives or receives such notice; and
(j) Other Information. Promptly, from time to time, such other
information regarding the operations, business affairs and financial
condition of any Company, or compliance with the terms of any Loan
Document, as the Administrative Agent or any Lender may reasonably
request.
SECTION 5.02 LITIGATION AND OTHER NOTICES. Furnish to the
Administrative Agent and each Lender written notice of the following promptly
(and, in any event, within three Business Days of any Company becoming aware
thereof):
(a) any Default, specifying the nature and extent thereof and the
corrective action (if any) taken or proposed to be taken with respect
thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit, litigation
or proceeding, whether at law or in equity by or before any Governmental
Authority, (i) against any Company or any Affiliate thereof that could
reasonably be expected to result in a Material Adverse Effect or (ii) with
respect to any Loan Document;
(c) any development that has resulted in, or could reasonably be
expected to result in a Material Adverse Effect;
(d) the occurrence of a Casualty Event in excess of $5.0 million;
and
(e) (i) the incurrence of any material Lien (other than Permitted
Collateral Liens) on, or claim asserted against any of the Collateral or
(ii) the occurrence of any other event which could materially affect the
value of the Collateral.
SECTION 5.03 EXISTENCE; BUSINESSES AND PROPERTIES.
(a) Do or cause to be done all things necessary to preserve, renew
and maintain in full force and effect its legal existence, except as otherwise
expressly permitted under Section 6.05 or Section 6.06 or, in the case of any
Subsidiary, where the failure to perform such obligations, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses, permits,
privileges, franchises, authorizations, patents, copyrights, trademarks and
trade names material to the conduct of its business; comply with all applicable
Requirements of Law (including any and all zoning, building, Environmental Law,
ordinance, code or approval or any building permits or any restrictions of
record or agreements affecting the Real Property) and decrees and orders of any
Governmental Authority, whether now in effect or hereafter enacted, except where
the failure to comply, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect; pay and perform its obligations
under all Leases, Transac-
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tion Documents and Second Amendment Transaction Documents except, in the case of
all such documents other than the Loan Documents, where the failure to comply,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect; and at all times maintain, preserve and protect all
property material to the conduct of such business and keep such property in good
repair, working order and condition (other than wear and tear occurring in the
ordinary course of business) and from time to time make, or cause to be made,
all needful and proper repairs, renewals, additions, improvements and
replacements thereto necessary in order that the business carried on in
connection therewith may be properly conducted at all times; provided that
nothing in this Section 5.03(b) shall prevent (i) sales of property,
consolidations or mergers by or involving any Company in accordance with Section
6.05 or Section 6.06; (ii) the withdrawal by any Company of its qualification as
a foreign corporation in any jurisdiction where such withdrawal, individually or
in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect; or (iii) the abandonment by any Company of any rights,
franchises, licenses, trademarks, trade names, copyrights or patents that such
person reasonably determines are not useful to its business or no longer
commercially desirable.
SECTION 5.04 INSURANCE.
(a) Keep its insurable property adequately insured at all times by
financially sound and reputable insurers; maintain such other insurance, to such
extent and against such risks as is customary with companies in the same or
similar businesses operating in the same or similar locations, including
insurance with respect to Mortgaged Properties and other properties material to
the business of the Companies against such casualties and contingencies and of
such types and in such amounts with such deductibles as is customary in the case
of similar businesses operating in the same or similar locations, including (i)
physical hazard insurance on an "all risk" basis, (ii) commercial general
liability against claims for bodily injury, death or property damage covering
any and all insurable claims, (iii) explosion insurance in respect of any
boilers, machinery or similar apparatus constituting Collateral, (iv) business
interruption insurance, (v) worker's compensation insurance and such other
insurance as may be required by any Requirement of Law and (vi) such other
insurance against risks as the Administrative Agent may from time to time
require (such policies to be in such form and amounts and having such coverage
as may be reasonably satisfactory to the Administrative Agent and the Collateral
Agent); provided that with respect to physical hazard insurance, neither the
Collateral Agent nor the applicable Company shall agree to the adjustment of any
claim thereunder without the consent of the other (such consent not to be
unreasonably withheld or delayed); provided, further, that no consent of any
Company shall be required during an Event of Default.
(b) All such insurance shall (i) provide that no cancellation,
material reduction in amount or material change in coverage thereof shall be
effective until at least 30 days after receipt by the Collateral Agent of
written notice thereof, (ii) name the Collateral Agent as mortgagee (in the case
of property insurance) or additional insured on behalf of the applicable Secured
Parties (in the case of liability insurance) or loss payee (in the case of
property insurance), as applicable, (iii) if reasonably requested by the
Collateral Agent, include a breach of warranty clause and (iv) be reasonably
satisfactory in all other respects to the Collateral Agent.
(c) Notify the Administrative Agent and the Collateral Agent
immediately whenever any separate insurance concurrent in form or contributing
in the event of loss with that required to be maintained under this Section 5.04
is taken out by any Company; and promptly deliver to the Administrative Agent
and the Collateral Agent a duplicate original copy of such policy or policies.
(d) With respect to each U.S. Mortgaged Property, obtain flood
insurance in such total amount as the Administrative Agent or the Required
Lenders may from time to time require, if at any time the area in which any
improvements located on any Mortgaged Property is designated a "flood haz-
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ard area" in any Flood Insurance Rate Map published by the Federal Emergency
Management Agency (or any successor agency), and otherwise comply with the
National Flood Insurance Program as set forth in the Flood Disaster Protection
Act of 1973, as amended from time to time.
(e) Deliver to the Administrative Agent and the Collateral Agent and
the Lenders a report of a reputable insurance broker with respect to such
insurance and such supplemental reports with respect thereto as the
Administrative Agent or the Collateral Agent may from time to time reasonably
request.
(f) No Loan Party that is an owner of Mortgaged Property shall take
any action that is reasonably likely to be the basis for termination, revocation
or denial of any insurance coverage required to be maintained under such Loan
Party's respective Mortgage or that could be the basis for a defense to any
claim under any Insurance Policy maintained in respect of the Premises, and each
Loan Party shall otherwise comply in all material respects with all Insurance
Requirements in respect of the Premises; provided, however, that each Loan Party
may, at its own expense and after written notice to the Administrative Agent,
(i) contest the applicability or enforceability of any such Insurance
Requirements by appropriate legal proceedings, the prosecution of which does not
constitute a basis for cancellation or revocation of any insurance coverage
required under this Section 5.04 or (ii) cause the Insurance Policy containing
any such Insurance Requirement to be replaced by a new policy complying with the
provisions of this Section 5.04.
SECTION 5.05 OBLIGATIONS AND TAXES.
(a) Pay its material Indebtedness and other material obligations
promptly and in accordance with their terms and pay and discharge promptly when
due all Taxes, assessments and governmental charges or levies imposed upon it or
upon its income or profits or in respect of its property, before the same shall
become delinquent or in default, as well as all lawful claims for labor,
services, materials and supplies or otherwise that, if unpaid, might give rise
to a Lien other than a Permitted Lien upon such properties or any part thereof;
provided that such payment and discharge shall not be required with respect to
any such Tax, assessment, charge, levy or claim so long as (i) the validity or
amount thereof shall be contested in good faith by appropriate proceedings
timely instituted and diligently conducted and the applicable Company shall have
set aside on its books adequate reserves or other appropriate provisions with
respect thereto in accordance with GAAP and such contested amounts, individually
or in the aggregate, are not reasonably expected to have a Material Adverse
Effect, (ii) such contest operates to suspend collection of the contested
obligation, Tax, assessment or charge and enforcement of a Lien other than a
Permitted Lien and (iii) in the case of Collateral, the applicable Company shall
have otherwise complied with the Contested Collateral Lien Conditions.
(b) Timely and correctly file all material Tax Returns required to
be filed by it. Withhold, collect and remit all Taxes that it is required to
collect, withhold or remit.
(c) U.S. Borrower does not intend to treat the Loans as being a
"reportable transaction" within the meaning of Treasury Regulation Section
1.6011-4. In the event U.S. Borrower determines to take any action inconsistent
with such intention, it will promptly notify the Administrative Agent thereof.
SECTION 5.06 EMPLOYEE BENEFITS. (a) Comply in all material respects
with the applicable provisions of ERISA and the Code and (b) furnish to the
Administrative Agent (x) as soon as possible after, and in any event within 10
days after any Responsible Officer of any Company or any ERISA Affiliates of any
Company knows or has reason to know that, any ERISA Event has occurred that,
alone or together with any other ERISA Event could reasonably be expected to
result in liability of the
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Companies or any of their ERISA Affiliates in an aggregate amount exceeding $1.0
million or the imposition of a Lien, a statement of a Financial Officer of U.S.
Borrower setting forth details as to such ERISA Event and the action, if any,
that the Companies propose to take with respect thereto, and (y) upon request by
the Administrative Agent, copies of (i) each Schedule B (Actuarial Information)
to the annual report (Form 5500 Series) filed by any Company or any ERISA
Affiliate with the Internal Revenue Service with respect to each Plan; (ii) the
most recent actuarial valuation report for each Plan; (iii) all notices received
by any Company or any ERISA Affiliate from a Multiemployer Plan sponsor or any
governmental agency concerning an ERISA Event; and (iv) such other documents or
governmental reports or filings relating to any Plan (or employee benefit plan
sponsored or contributed to by any Company) as the Administrative Agent shall
reasonably request.
SECTION 5.07 MAINTAINING RECORDS; ACCESS TO PROPERTIES AND
INSPECTIONS; ANNUAL MEETINGS.
(a) Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all Requirements of Law are made of
all dealings and transactions in relation to its business and activities. Each
Company will permit any representatives designated by the Administrative Agent
or any Lender to visit and inspect the financial records and the property of
such Company at reasonable times and as often as reasonably requested and to
make extracts from and copies of such financial records, and permit any
representatives designated by the Administrative Agent or any Lender to discuss
the affairs, finances, accounts and condition of any Company with the officers
and employees thereof and advisors therefor (including independent accountants).
(b) Within 120 days after the close of each fiscal year of the
Companies, at the request of the Administrative Agent or Required Lenders, hold
a meeting (at a mutually agreeable location and time or, at the option of the
Administrative Agent, by conference call) with all Lenders who choose to attend
such meeting at which meeting shall be reviewed the financial results of the
previous fiscal year and the financial condition of the Companies and the
budgets presented for the current fiscal year of the Companies.
SECTION 5.08 USE OF PROCEEDS. Use the proceeds of the Loans only for
the purposes set forth in Section 3.12 and request the issuance of Letters of
Credit only for the purposes set forth in the definition of Commercial Letter of
Credit or Standby Letter of Credit, as the case may be.
SECTION 5.09 COMPLIANCE WITH ENVIRONMENTAL LAWS; ENVIRONMENTAL
REPORTS.
(a) Comply, and cause all lessees and other persons occupying Real
Property owned, operated or leased by any Company to comply, in all material
respects with all Environmental Laws and Environmental Permits applicable to its
operations and Real Property; obtain and renew all material Environmental
Permits applicable to its operations and Real Property; and conduct all
Responses required by, and in accordance with, Environmental Laws; provided that
no Company shall be required to undertake any Response to the extent that its
obligation to do so is being contested in good faith and by proper proceedings
and appropriate reserves are being maintained with respect to such circumstances
in accordance with GAAP.
(b) If a Default caused by reason of a breach of Section 3.18 or
Section 5.09(a) shall have occurred and be continuing for more than 20 days
without the Companies commencing activities reasonably likely to cure such
Default, at the written request of the Administrative Agent or the Required
Lenders through the Administrative Agent, provide to the Lenders within 45 days
after such request, at the expense of U.S. Borrower, an environmental assessment
report regarding the matters which are the subject of such Default, including,
where appropriate, any soil and/or groundwater sampling, prepared by
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an environmental consulting firm and, in the form and substance, reasonably
acceptable to the Administrative Agent and indicating the presence or absence of
Hazardous Materials and the estimated cost of any compliance or Response to
address them.
(c) Each Loan Party that is an owner of Mortgaged Property shall not
install nor permit to be installed in the Mortgaged Property any Hazardous
Materials, other than in compliance with applicable Environmental Laws.
SECTION 5.10 ADDITIONAL COLLATERAL; ADDITIONAL GUARANTORS.
(a) Subject to this Section 5.10, with respect to any property
acquired after the Second Amendment Effectiveness Date by any Loan Party that is
intended to be subject to the Lien created by any of the Security Documents but
is not so subject, promptly (and in any event within 30 days after the
acquisition thereof) (i) execute and deliver to the Administrative Agent and the
Collateral Agent such amendments or supplements to the relevant Security
Documents or such other documents as the Administrative Agent or the Collateral
Agent shall deem reasonably necessary or advisable to grant to the Collateral
Agent, for its benefit and for the benefit of the other applicable Secured
Parties, a Lien on such property subject to no other Liens other than Permitted
Collateral Liens, and (ii) take all actions necessary to cause such Lien to be
duly perfected to the extent required by such Security Document in accordance
with all applicable Requirements of Law, including the filing of financing
statements in such jurisdictions as may be reasonably requested by the
Administrative Agent. The Borrowers shall otherwise take such actions and
execute and/or deliver to the Collateral Agent such documents as the
Administrative Agent or the Collateral Agent shall reasonably require to confirm
the validity, perfection and priority of the Lien of the Security Documents
against such after-acquired properties.
(b) With respect to any person that is or becomes a U.S. Subsidiary
after the Second Amendment Effectiveness Date, promptly (and in any event within
30 days after such person becomes a U.S. Subsidiary) (i) deliver to the
Collateral Agent the certificates, if any, representing all of the Equity
Interests of such U.S. Subsidiary owned by Parent or any of its Subsidiaries,
together with undated stock powers or other appropriate instruments of transfer
executed and delivered in blank by a duly authorized officer of the holder(s) of
such Equity Interests, and all intercompany notes owing from such U.S.
Subsidiary to any Loan Party together with instruments of transfer executed and
delivered in blank by a duly authorized officer of such Loan Party and (ii)
cause such new U.S. Subsidiary (A) to execute a Joinder Agreement or such
comparable documentation to become a U.S. Subsidiary Guarantor and a joinder
agreement to the U.S. Security Agreement, substantially in the form annexed
thereto or, in the case of a Foreign Subsidiary (other than a Canadian
Subsidiary), execute a security agreement compatible with the laws of such
Foreign Subsidiary's jurisdiction in form and substance reasonably satisfactory
to the Administrative Agent, and (B) to take all actions necessary or advisable
in the opinion of the Administrative Agent or the Collateral Agent to cause the
Lien created by the U.S. Security Agreement to be duly perfected to the extent
required by such agreement in accordance with all applicable Requirements of
Law, including the filing of financing statements in such jurisdictions as may
be reasonably requested by the Administrative Agent or the Collateral Agent.
Notwithstanding the foregoing, (1) the Equity Interests required to be delivered
to the Collateral Agent pursuant to clause (i) of this Section 5.10(b) shall not
include any Equity Interests of a Foreign Subsidiary created or acquired after
the Second Amendment Effectiveness Date and (2) no Foreign Subsidiary shall be
required to take the actions specified in clause (ii) of this Section 5.10(b),
if, in the case of either clause (1) or (2), doing so would constitute an
investment of earnings in United States property under Section 956 (or a
successor provision) of the Code, which investment would or could reasonably be
expected to trigger a non de minimis increase in the net income of a United
States shareholder of such Subsidiary pursuant to Section 951 (or a successor
provision) of the Code, as reasonably determined by the Administrative Agent;
provided that this exception shall not apply to (A) Voting Stock of any
Subsidiary which is a first-tier controlled foreign corporation (as defined
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in Section 957(a) of the Code) representing 65% of the total voting power of all
outstanding Voting Stock of such Subsidiary and (B) 100% of the Equity Interests
not constituting Voting Stock of any such Subsidiary, except that any such
Equity Interests constituting "stock entitled to vote" within the meaning of
Treasury Regulation Section 1.956-2(c)(2) shall be treated as Voting Stock for
purposes of this Section 5.10(b).
(c) With respect to any person that is or becomes a Canadian
Subsidiary after the Second Amendment Effectiveness Date, promptly (and in any
event within 30 days after such person becomes a Canadian Subsidiary) (i)
deliver to the Collateral Agent, a pledge agreement in a form reasonably
satisfactory to the Collateral Agent, the certificates, if any, representing all
of the Equity Interests of such Canadian Subsidiary owned by Canadian Borrower
or a Canadian Subsidiary, together with undated stock powers or other
appropriate instruments of transfer executed and delivered in blank by a duly
authorized officer of the holder(s) of such Equity Interests, and all
intercompany notes owing from such Canadian Subsidiary to any Loan Party
together with instruments of transfer executed and delivered in blank by a duly
authorized officer of such Loan Party and (ii) cause such new Subsidiary (A) to
execute a Joinder Agreement or such comparable documentation to become a
Canadian Subsidiary Guarantor and a joinder agreement to the Canadian Security
Agreement, substantially in the form annexed thereto or, in the case of a
Subsidiary not organized under the laws of Canada, execute a security agreement
compatible with the laws of such Subsidiary's jurisdiction in form and substance
reasonably satisfactory to the Administrative Agent, and (B) to take all actions
necessary or advisable in the opinion of the Administrative Agent or the
Collateral Agent to cause the Lien created by such security document to be duly
perfected to the extent required by such agreement in accordance with all
applicable Requirements of Law, including the filing of financing statements in
such jurisdictions as may be reasonably requested by the Administrative Agent or
the Collateral Agent.
(d) Promptly grant to the Collateral Agent, within 60 days of the
acquisition thereof, a security interest in and Mortgage on (i) each Real
Property owned in fee by such U.S. Loan Party as is acquired by such U.S. Loan
Party after the Original Closing Date and that, together with any improvements
thereon, individually has a fair market value of at least $1.0 million, and (ii)
unless the Collateral Agent otherwise consents, each leased Real Property of
such U.S. Loan Party which lease individually has a fair market value of at
least $1.0 million, in each case, as additional security for the Obligations
(unless the subject property is already mortgaged to a third party to the extent
permitted by Section 6.02). Such Mortgages shall be granted pursuant to
documentation reasonably satisfactory in form and substance to the
Administrative Agent and the Collateral Agent and shall constitute valid and
enforceable perfected Liens subject only to Permitted Collateral Liens or other
Liens acceptable to the Collateral Agent. The Mortgages or instruments related
thereto shall be duly recorded or filed in such manner and in such places as are
required by law to establish, perfect, preserve and protect the Liens in favor
of the Collateral Agent required to be granted pursuant to the Mortgages and all
taxes, fees and other charges payable in connection therewith shall be paid in
full. Such U.S. Loan Party shall otherwise take such actions and execute and/or
deliver to the Collateral Agent such documents as the Administrative Agent or
the Collateral Agent shall require to confirm the validity, perfection and
priority of the Lien of any existing Mortgage or new Mortgage against such
after-acquired Real Property (including a Title Policy, a Survey and local
counsel opinion (in form and substance reasonably satisfactory to the
Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(e) Promptly grant to the Collateral Agent, within 60 days of the
acquisition thereof, a security interest in and Mortgage creating a Lien on (i)
each Real Property owned in fee by such Canadian Loan Party as is acquired by
such Canadian Loan Party after the Original Closing Date and that, together with
any improvements thereon, individually has a fair market value of at least $1.0
million, and (ii) unless the Collateral Agent otherwise consents, each leased
Real Property of such Canadian Loan Party which lease individually has a fair
market value of at least $1.0 million, in each case, as additional
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security for the Obligations (unless the subject property is already mortgaged
to a third party to the extent permitted by Section 6.02). Such Mortgages shall
be granted pursuant to documentation reasonably satisfactory in form and
substance to the Administrative Agent and the Collateral Agent and shall
constitute valid and enforceable perfected Liens subject only to Permitted
Collateral Liens or other Liens acceptable to the Collateral Agent. The
Mortgages or instruments related thereto shall be duly recorded or filed in such
manner and in such places as are required by law to establish, perfect, preserve
and protect the Liens in favor of the Collateral Agent required to be granted
pursuant to the Mortgages and all taxes, fees and other charges payable in
connection therewith shall be paid in full. Such Canadian Loan Party shall
otherwise take such actions and execute and/or deliver to the Collateral Agent
such documents as the Administrative Agent or the Collateral Agent shall require
to confirm the validity, perfection and priority of the Lien of any existing
Mortgage or new Mortgage against such after-acquired Real Property (including a
Title Policy (if available in the relevant jurisdiction), Survey and local
counsel opinion (including as to title if a Title Policy is unavailable and
otherwise in form and substance reasonably satisfactory to the Administrative
Agent and the Collateral Agent) in respect of such Mortgage).
(f) The parties hereto agree that the provisions of this Section
5.10 (other than this Section 5.10(f)) shall not apply to Non-Guarantor
Subsidiaries. Either Borrower may designate any of its Subsidiaries acquired or
formed after the Second Amendment Effectiveness Date as a Non-Guarantor
Subsidiary by written notice to the Administrative Agent; provided, however,
that if at any time any Non-Guarantor Subsidiary or group of Non-Guarantor
Subsidiaries in the aggregate (other than any Foreign Subsidiary that is not
required to take the actions specified in Section 5.10(b)(ii) by operation of
the last sentence of Section 5.10(b)) not otherwise subject to Section 5.10(b)
has assets with either a book value or fair market value in excess of $2.0
million, then such Borrower shall, and shall cause one or more of such
Subsidiaries to, comply with Section 5.10(b) within the time frames set forth
therein so that no Non-Guarantor Subsidiary or group of Non-Guarantor
Subsidiaries in the aggregate holds property having either a book value or fair
market value in excess of $2.0 million.
SECTION 5.11 SECURITY INTERESTS; FURTHER ASSURANCES. Promptly, upon
the reasonable request of the Administrative Agent, the Collateral Agent or any
Lender, at U.S. Borrower's expense, execute, acknowledge and deliver, or cause
the execution, acknowledgment and delivery of, and thereafter register, file or
record, or cause to be registered, filed or recorded, in an appropriate
governmental office, any document or instrument supplemental to or confirmatory
of the Security Documents or otherwise deemed by the Administrative Agent or the
Collateral Agent reasonably necessary or desirable for the continued validity,
perfection and priority of the Liens on the Collateral covered thereby subject
to no other Liens except as permitted by the applicable Security Document, or
obtain any consents or waivers as may be necessary or appropriate in connection
therewith. Deliver or cause to be delivered to the Administrative Agent and the
Collateral Agent from time to time such other documentation, consents,
authorizations, approvals and orders in form and substance reasonably
satisfactory to the Administrative Agent and the Collateral Agent as the
Administrative Agent and the Collateral Agent shall reasonably deem necessary to
perfect or maintain the Liens on the Collateral pursuant to the Security
Documents. Upon the exercise by the Administrative Agent, the Collateral Agent
or the Required Lenders of any power, right, privilege or remedy pursuant to any
Loan Document which requires any consent, approval, registration, qualification
or authorization of any Governmental Authority execute and deliver all
applications, certifications, instruments and other documents and papers that
the Administrative Agent, the Collateral Agent or the Required Lenders may
require. If the Administrative Agent, the Collateral Agent or the Required
Lenders reasonably determine that they are required by law or regulation to have
appraisals prepared in respect of the Real Property of any Loan Party
constituting Collateral, the Borrowers shall provide to the Administrative Agent
appraisals that satisfy the applicable requirements of the Real Estate Appraisal
Reform Amendments of FIRREA or other applicable law and are otherwise in form
and substance reasonably satisfactory to the Administrative Agent and the
Collateral Agent.
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SECTION 5.12 INFORMATION REGARDING COLLATERAL.
(a) Not effect any change (i) in any Loan Party's legal name, (ii)
in the location of any Loan Party's chief executive office, (iii) in any Loan
Party's identity or organizational structure, (iv) in any Loan Party's Federal
Taxpayer Identification Number or organizational identification number, if any,
(v) in any Loan Party's jurisdiction of organization (in each case, including by
merging with or into any other entity, reorganizing, dissolving, liquidating,
reorganizing or organizing in any other jurisdiction) or (vi) in the case of
tangible personal property in Canada, the Province in which such property is
located, unless a PPSA financing statement has already been filed in respect of
the Loan Party in the province to which the property is re-located until (A) it
shall have given the Collateral Agent and the Administrative Agent not less than
30 days' prior written notice (in the form of an Officers' Certificate), or such
lesser notice period agreed to by the Collateral Agent, of its intention so to
do, clearly describing such change and providing such other information in
connection therewith as the Collateral Agent or the Administrative Agent may
reasonably request and (B) it shall have taken all action reasonably
satisfactory to the Collateral Agent to maintain the perfection and priority of
the security interest of the Collateral Agent for the benefit of the Secured
Parties in the Collateral, if applicable. Each Loan Party agrees to promptly
provide the Collateral Agent with certified Organizational Documents reflecting
any of the changes described in the preceding sentence. Each Loan Party also
agrees to promptly notify the Collateral Agent of any change in the location of
any office in which it maintains books or records relating to Collateral owned
by it or any office or facility at which Collateral is located (including the
establishment of any such new office or facility), other than changes in
location to a Mortgaged Property or a leased property subject to a Landlord
Access Agreement.
(b) Concurrently with the delivery of financial statements pursuant
to Section 5.01(a), deliver to the Administrative Agent and the Collateral Agent
a Perfection Certificate Supplement and a certificate of a Financial Officer and
the chief legal officer of U.S. Borrower certifying that all UCC financing
statements (including fixture filings, as applicable) or other appropriate
filings, recordings or registrations, including all refilings, rerecordings and
reregistrations, containing a description of the Collateral have been filed of
record in each governmental, municipal or other appropriate office in each
jurisdiction necessary to protect and perfect the security interests and Liens
under the Security Documents for a period of not less than 18 months after the
date of such certificate (except as noted therein with respect to any
continuation statements to be filed within such period).
SECTION 5.13 POST-CLOSING MATTERS.
(a) If while any Obligations are outstanding, the mortgage(s) or
deed(s) of trust encumbering, as of the Original Closing Date, any of the Real
Properties identified on Schedule 5.13(a) (which mortgage(s) or deed(s) of trust
are more particularly described in the applicable title commitments referred to
in Schedule 6.02(c)) are satisfied or released, the applicable Loan Party shall
deliver to Collateral Agent with respect to any such Real Property, within
thirty (30) days thereafter, the documents, instruments, opinions and other
items set forth as follows:
(1) a duly executed and acknowledged Mortgage, financing statements
and other instruments meeting the requirements of Section 4.01(o)(i)
hereof;
(2) such consents, approvals, amendments, supplements, estoppels,
tenant subordination agreements or other instruments as required by
Section 4.01(o)(ii);
(3) a policy of title insurance meeting the requirements of Section
4.01(o)(iii);
(4) policies or certificates of insurance as required by Section
4.01(p);
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(5) a Survey meeting the requirements of the definition of "Survey"
contained in this Agreement;
(6) such affidavits, certificates, information (including financial
data) and instruments of indemnification (including, without limitation, a
so-called "gap" indemnification) as required by Section 4.01(o)(iv);
(7) evidence of payment of all applicable premiums, charges, costs,
taxes, etc. as required by Section 4.01(o)(v);
(8) copies of all leases or other agreements, and subordination of
such, as required by Section 4.01(o)(vi);
(9) the notices, registration and filings required by Section
4.01(o)(vii); and
(10) favorable written opinions of local counsel in the states in
which each such Real Property is located, as required by Section 4.01(g).
(b) The Borrowers shall comply with Sections 5.10(d) and (e) with
respect to the MW Acquisition; provided that the Administrative Agent may extend
in its sole discretion the 60-day period referred to in each such Section.
(c) The Borrowers shall comply with Sections 5.10(d) and (e) with
respect to properties that are the subject of Permitted Sale and Leaseback
Transactions on or prior to the Second Amendment Effectiveness Date and that
constitute Mortgaged Properties at such time regardless of whether such
properties or the applicable leasehold interests meet the thresholds referenced
in such sections; provided that the 60-day period referred to in each such
Section shall be a 15-day period for purposes of this clause (subject to
extension by the Administrative Agent in its sole discretion).
ARTICLE VI
NEGATIVE COVENANTS
Each Loan Party warrants, covenants and agrees with each Lender
that, so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan, all Fees
and all other expenses or amounts payable under any Loan Document have been paid
in full and all Letters of Credit have been canceled or have expired and all
amounts drawn thereunder have been reimbursed in full, unless the Required
Lenders shall otherwise consent in writing, no Loan Party will, nor will they
cause or permit any Subsidiaries to:
SECTION 6.01 INDEBTEDNESS. Incur, create, assume or permit to exist,
directly or indirectly, any Indebtedness, except
(a) Indebtedness incurred under this Agreement and the other Loan
Documents;
(b) (i) Indebtedness outstanding on the Second Amendment
Effectiveness Date and listed on Schedule 6.01(b), (ii) refinancings or
renewals thereof or of the Indebtedness under clauses (iii) and (iv)
below; provided that (A) any such refinancing Indebtedness is in an
aggregate principal amount not greater than the aggregate principal amount
of the Indebtedness being renewed or refinanced, plus the amount of any
premiums required to be paid thereon and reasonable fees and expenses
associated therewith, (B) such refinancing Indebtedness has a later or
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equal final maturity and longer or equal weighted average life than the
Indebtedness being renewed or refinanced and (C) the covenants, events of
default, subordination and other provisions thereof (including any
guarantees thereof) shall be, in the aggregate in all material respects,
no less favorable to the Lenders than those contained in the Indebtedness
being renewed or refinanced; (iii) the Senior Subordinated Notes and
Senior Subordinated Note Guarantees issued on the Original Closing Date
(including any notes and guarantees issued in exchange therefor in
accordance with the registration rights document entered into in
connection with the issuance of the Senior Subordinated Notes and Senior
Subordinated Note Guarantees); (iv) the New Senior Subordinated Notes and
New Senior Subordinated Note Guarantees issued on the Second Amendment
Effectiveness Date (including any notes and guarantees issued in exchange
therefor in accordance with the registration rights document entered into
in connection with the issuance of the New Senior Subordinated Notes and
New Senior Subordinated Note Guarantees); and (v) additional Senior
Subordinated Notes and Senior Subordinated Note Guarantees issued after
the Second Amendment Effectiveness Date (including any notes and
guarantees issued in exchange therefor in accordance with the registration
rights document entered into in connection with the issuance of such
additional Senior Subordinated Notes and Senior Subordinated Note
Guarantees) in an aggregate amount not to exceed $100.0 million less the
aggregate amount of any Additional Term Loans, and additional Senior
Subordinated Note Guarantees issued after the Original Closing Date in
accordance with the indenture governing the Senior Subordinated Notes by
any Subsidiary Guarantor formed or acquired after the Original Closing
Date;
(c) Indebtedness under Hedging Obligations that are designed to
protect against fluctuations in interest rates, foreign currency exchange
rates or commodity prices, in each case not entered into for speculative
purposes; provided that if such Hedging Obligations relate to interest
rates, (a) such Hedging Obligations relate to payment obligations on
Indebtedness otherwise permitted to be incurred by the Loan Documents and
(b) the notional principal amount of such Hedging Obligations at the time
incurred does not exceed the principal amount of the Indebtedness to which
such Hedging Obligations relate;
(d) Indebtedness permitted by Section 6.04(f);
(e)Indebtedness in respect of Purchase Money Obligations and Capital
Lease Obligations, and refinancings or renewals thereof, in an aggregate
amount not to exceed $15.0 million at any time outstanding;
(f) Indebtedness incurred by Foreign Subsidiaries in an aggregate
amount not to exceed $25.0 million (not including the Canadian
Intercompany Note) at any time outstanding;
(g) Indebtedness in respect of bid, performance or surety bonds,
workers' compensation claims, self-insurance obligations and bankers
acceptances issued for the account of any Company in the ordinary course
of business, including guarantees or obligations of any Company with
respect to letters of credit supporting such bid, performance or surety
bonds, workers' compensation claims, self-insurance obligations and
bankers acceptances (in each case other than for an obligation for money
borrowed), in an aggregate amount not to exceed $15.0 million at any time
outstanding;
(h) Contingent Obligations of any Loan Party in respect of
Indebtedness otherwise permitted under this Section 6.01;
(i) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn
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against insufficient funds in the ordinary course of business; provided,
however, that such Indebtedness is extinguished within five Business Days
of incurrence;
(j) the Canadian Intercompany Note;
(k) Indebtedness arising in connection with endorsement of
instruments for deposit in the ordinary course of business;
(l) unsecured Indebtedness of any Company in an aggregate amount not
to exceed $30.0 million at any time outstanding;
(m) Indebtedness assumed in connection with any Permitted
Acquisition, and refinancing or renewals thereof, in an aggregate amount
not to exceed $30.0 million at any time outstanding;
(n) indemnification, adjustment of purchase price, earn-out or
similar obligations, in each case, incurred or assumed in connection with
the acquisition or disposition of any business or property of U.S.
Borrower or any Subsidiary of U.S. Borrower or Equity Interests of any
Subsidiary of U.S. Borrower, other than guarantees of Indebtedness
incurred by any person acquiring all or any portion of such business,
property or Equity Interests for the purpose of financing any such
acquisition; provided that the maximum aggregate liability in respect of
all such obligations outstanding under this clause (n) shall at no time
exceed (a) in the case of an acquisition, $15.0 million (provided that the
amount of such liability shall be deemed to be the amount thereof, if any,
reflected on the balance sheet of U.S. Borrower or any Subsidiary (e.g.,
the amount of such liability shall be deemed to be zero if no amount is
reflected on such balance sheet)) and (b) in the case of a disposition,
the gross proceeds actually received by U.S. Borrower and its Subsidiaries
in connection with such disposition;
(o) Indebtedness incurred in the ordinary course of business under
guarantees of Indebtedness of suppliers, licensees, franchisees or
customers in an aggregate amount, together with the aggregate amount of
Investments made pursuant to Section 6.04(j), not to exceed $7.5 million
at any time outstanding; and
(p) unsecured Indebtedness of Parent ("PERMITTED PARENT DEBT") that
(A) is not subject to any Guarantee by U.S. Borrower or any of its
Subsidiaries, (B) will not mature prior to the date that is 181 days after
the Term Loan Maturity Date, (C) has no scheduled amortization, mandatory
prepayment events or payments of principal (other than prepayments related
to asset sales or a change of control, subject to prior payment of all
Obligations), (D) does not permit any payments in cash of interest or
other amounts in respect of the principal thereof for at least five (5)
years from the date of the issuance or incurrence thereof, and (E) has
mandatory prepayment, repurchase or redemption, covenant, default and
remedy provisions customary for senior discount notes of an issuer that is
the parent of a borrower under senior secured credit facilities, and in
any event, with respect to covenant, default and remedy provisions, no
more restrictive than those contained in the Senior Subordinated Note
Agreement, taken as a whole (other than provisions customary for senior
discount notes of a holding company); provided any such Indebtedness shall
constitute Permitted Parent Debt only if (i) both before and after giving
effect to the issuance or incurrence thereof, no Default or Event of
Default shall have occurred and be continuing and the public ratings of
the Loans by S&P and Moody's are not lower than the respective ratings of
the Loans by such rating agencies existing on the Second Amendment
Effectiveness Date, and (ii) after giving pro forma effect to the issuance
or incurrence thereof, the Parent Consolidated
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Leverage Ratio shall be less than 5.50:1.00 and the Total Leverage Ratio
shall be less than 4.00:1.00.
SECTION 6.02 LIENS. Create, incur, assume or permit to exist,
directly or indirectly, any Lien on any property now owned or hereafter acquired
by it or on any income or revenues or rights in respect of any thereof, except
the following (collectively, the "PERMITTED LIENS"):
(a) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due and payable or delinquent and Liens for taxes,
assessments or governmental charges or levies, which (i) are being
contested in good faith by appropriate proceedings for which adequate
reserves have been established in accordance with GAAP, which proceedings
(or orders entered in connection with such proceedings) have the effect of
preventing the forfeiture or sale of the property subject to any such
Lien, (ii) in the case of any such charge or claim which has or may become
a Lien against any of the Collateral, such Lien and the contest thereof
shall satisfy the Contested Collateral Lien Conditions and (iii)
individually or in the aggregate, could not reasonably expected to have a
Material Adverse Effect;
(b) Liens in respect of property of any Company imposed by law,
which were incurred in the ordinary course of business and do not secure
Indebtedness for borrowed money, such as carriers', warehousemen's,
materialmen's, landlords', workmen's, suppliers', repairmen's and
mechanics' Liens and other similar Liens arising in the ordinary course of
business, and (i) which do not in the aggregate materially detract from
the value of the property of the Companies, taken as a whole, and do not
materially impair the use thereof in the operation of the business of the
Companies, taken as a whole, (ii) which, if they secure obligations that
are then due and unpaid, are being contested in good faith by appropriate
proceedings for which adequate reserves have been established in
accordance with GAAP, which proceedings (or orders entered in connection
with such proceedings) have the effect of preventing the forfeiture or
sale of the property subject to any such Lien, and (iii) in the case of
any such Lien which has or may become a Lien against any of the
Collateral, such Lien and the contest thereof shall satisfy the Contested
Collateral Lien Conditions;
(c) any Lien in existence on the Second Amendment Effectiveness Date
and set forth on Schedule 6.02(c) and any Lien granted as a replacement or
substitute therefor; provided that any such replacement or substitute Lien
(i) except as permitted by Section 6.01(b)(ii)(A), does not secure an
aggregate amount of Indebtedness, if any, greater than that secured on the
Second Amendment Effectiveness Date and (ii) does not encumber any
property other than the property subject thereto on the Original Closing
Date (any such Lien, an "EXISTING LIEN");
(d) easements, rights-of-way, restrictions (including zoning
restrictions), covenants, licenses, encroachments, protrusions and other
similar charges or encumbrances, and minor title deficiencies on or with
respect to any Real Property, in each case whether now or hereafter in
existence, not (i) securing Indebtedness, (ii) individually or in the
aggregate materially impairing the value or marketability of such Real
Property or (iii) individually or in the aggregate materially interfering
with the ordinary conduct of the business of the Companies at such Real
Property;
(e) Liens arising out of judgments, attachments or awards not
resulting in a Default and in respect of which such Company shall in good
faith be prosecuting an appeal or proceedings for review in respect of
which there shall be secured a subsisting stay of execution pending such
appeal or proceedings and, in the case of any such Lien which has or may
become a Lien against any of the Collateral, such Lien and the contest
thereof shall satisfy the Contested Collateral Lien Conditions;
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(f) Liens (other than any Lien imposed by ERISA) (x) imposed by law
or deposits made in connection therewith in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security legislation, (y) incurred in the
ordinary course of business to secure the performance of tenders,
statutory obligations (other than excise taxes), surety, stay, customs and
appeal bonds, statutory bonds, bids, leases, government contracts, trade
contracts, performance and return of money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money)
or (z) arising by virtue of deposits made in the ordinary course of
business to secure liability for premiums to insurance carriers; provided
that (i) with respect to clauses (x), (y) and (z) of this paragraph (f),
such Liens are for amounts not yet due and payable or delinquent or, to
the extent such amounts are so due and payable, such amounts are being
contested in good faith by appropriate proceedings for which adequate
reserves have been established in accordance with GAAP, which proceedings
for orders entered in connection with such proceedings have the effect of
preventing the forfeiture or sale of the property subject to any such
Lien, (ii) to the extent such Liens are not imposed by law, such Liens
shall in no event encumber any property other than cash and Cash
Equivalents, (iii) in the case of any such Lien against any of the
Collateral, such Lien and the contest thereof shall satisfy the Contested
Collateral Lien Conditions and (iv) the aggregate amount of deposits at
any time pursuant to clause (y) and clause (z) of this paragraph (f) shall
not exceed $3.5 million in the aggregate;
(g) Leases of the properties of any Company, in each case entered
into in the ordinary course of such Company's business so long as such
Leases are subordinate in all respects to the Liens granted and evidenced
by the Security Documents and do not, individually or in the aggregate,
(i) interfere in any material respect with the ordinary conduct of the
business of any Company or (ii) materially impair the use (for its
intended purposes) or the value of the property subject thereto;
(h) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by
any Company in the ordinary course of business;
(i) Liens securing Indebtedness incurred pursuant to Section
6.01(e); provided that any such Liens attach only to the property being
financed pursuant to such Indebtedness and do not encumber any other
property of any Company;
(j) bankers' Liens, rights of setoff and other similar Liens
existing solely with respect to cash and Cash Equivalents on deposit in
one or more accounts maintained by any Company, in each case granted in
the ordinary course of business in favor of the bank or banks with which
such accounts are maintained, securing amounts owing to such bank with
respect to cash management and operating account arrangements, including
those involving pooled accounts and netting arrangements; provided that,
unless such Liens are non-consensual and arise by operation of law, in no
case shall any such Liens secure (either directly or indirectly) the
repayment of any Indebtedness;
(k) Liens on property of a person existing at the time such person
is acquired or merged with or into or consolidated with any Company to the
extent permitted hereunder (and not created in anticipation or
contemplation thereof); provided that such Liens do not extend to property
not subject to such Liens at the time of acquisition (other than
improvements thereon) and are no more favorable to the lienholders than
such existing Lien;
(l) Liens granted pursuant to the Security Documents to secure the
Obligations;
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(m) licenses of Intellectual Property granted by any Company in the
ordinary course of business and not interfering in any material respect
with the ordinary conduct of business of the Companies;
(n) the filing of UCC or PPSA financing statements solely as a
precautionary measure in connection with operating leases or consignment
of goods;
(o) Liens securing Indebtedness incurred pursuant to Section
6.01(f); provided that (i) such Liens do not extend to, or encumber,
property which constitutes Collateral and (ii) such Liens extend only to
the property (or Equity Interests) of the Foreign Subsidiary incurring
such Indebtedness;
(p) the existence of the "equal and ratable" clause in the Senior
Subordinated Note Documents and the New Senior Subordinated Note Documents
(but not any security interests granted pursuant thereto); and
(q) Liens incurred in the ordinary course of business of any Company
with respect to obligations that do not in the aggregate exceed $7.5
million at any time outstanding, so long as such Liens, to the extent
covering any Collateral, are junior to the Liens granted pursuant to the
Security Documents;
provided, however, that no consensual Liens shall be permitted to exist,
directly or indirectly, on any Securities Collateral, other than Liens granted
pursuant to the Security Documents.
SECTION 6.03 SALE AND LEASEBACK TRANSACTIONS. Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred (a "SALE AND LEASEBACK
TRANSACTION") (other than a Permitted Sale and Leaseback Transaction) unless (i)
the sale of such property is permitted by Section 6.06 and (ii) any Liens
arising in connection with its use of such property are permitted by Section
6.02.
SECTION 6.04 INVESTMENT, LOAN AND ADVANCES. Directly or indirectly,
lend money or credit (by way of guarantee or otherwise) or make advances to any
person, or purchase or acquire any stock, bonds, notes, debentures or other
obligations or securities of, or any other interest in, or make any capital
contribution to, any other person, or purchase or own a futures contract or
otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract (all of the
foregoing, collectively, "INVESTMENTS"), except that the following shall be
permitted:
(a) the Companies may consummate (i) the Transactions in accordance
with the provisions of the Transaction Documents and (ii) the Second
Amendment Transactions with the in accordance with the provisions of the
Second Amendment Transaction Documents;
(b) Investments outstanding on the Second Amendment Effectiveness
Date and identified on Schedule 6.04(b);
(c) the Companies may (i) acquire and hold accounts receivables
owing to any of them if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary terms,
(ii) invest in, acquire and hold cash and Cash Equivalents,
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(iii) endorse negotiable instruments held for collection in the ordinary
course of business or (iv) make lease, utility and other similar deposits
in the ordinary course of business;
(d) Hedging Obligations incurred pursuant to Section 6.01(c);
(e) loans and advances to directors, employees and officers of U.S.
Borrower and the Subsidiaries for bona fide business purposes and to
purchase Equity Interests of Holdings, in aggregate amount not to exceed
$5.0 million at any time outstanding;
(f) Investments (i) by Parent, U.S. Borrower or any U.S. Subsidiary
Guarantor in U.S. Borrower or any U.S. Subsidiary Guarantor, (ii) by
Canadian Borrower or any Canadian Subsidiary Guarantor in Canadian
Borrower or any Canadian Subsidiary Guarantor and (iii) by a Subsidiary
that is not a Subsidiary Guarantor in any other Subsidiary that is not a
Subsidiary Guarantor; provided that any Investment in the form of a loan
or advance by or in a Loan Party shall be evidenced by an Intercompany
Note and, in the case of a loan or advance by a Loan Party, pledged by
such Loan Party as Collateral pursuant to the Security Documents;
(g) Investments in securities of trade creditors or customers in the
ordinary course of business received upon foreclosure or pursuant to any
plan of reorganization or similar arrangement upon the bankruptcy or
insolvency of such trade creditors or customers;
(h) Investments made by U.S. Borrower or any Subsidiary as a result
of consideration received in connection with an Asset Sale made in
compliance with Section 6.06;
(i) (x) Investments in Foreign Subsidiaries in an aggregate amount
not to exceed $15.0 million at any time outstanding, after taking into
account amounts returned in cash (including upon disposition) and (y)
Investments in Foreign Subsidiaries with the proceeds of Excluded
Issuances to the extent such proceeds have not been utilized for any other
purpose; provided that any such Investment made in the form of a loan or
advance shall be evidenced by an Intercompany Note and, in the case of a
loan or advance by a Loan Party, pledged by such Loan Party as Collateral
pursuant to the Security Documents;
(j) loans and advances to suppliers, licensees, franchisees or
customers of U.S. Borrower or any of its Subsidiaries made in the ordinary
course of business in an aggregate amount, together with the aggregate
amount of Indebtedness incurred pursuant to Section 6.01(o), not to exceed
$7.5 million at any time outstanding;
(k) Investments in Subsidiaries as a result of the consummation of
Permitted Acquisitions;
(l) Guarantees of Indebtedness not prohibited by Section 6.01; and
(m) other investments in an aggregate amount not to exceed $30.0
million at any time outstanding.
SECTION 6.05 MERGERS AND CONSOLIDATIONS. Wind up, liquidate or
dissolve its affairs or enter into any transaction of merger or consolidation
(or agree to do any of the foregoing at any future time), except that the
following shall be permitted:
(a) Asset Sales in compliance with Section 6.06;
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(b) acquisitions in compliance with Section 6.07;
(c) (x) any Company (other than Canadian Borrower or any Canadian
Subsidiaries) may merge or consolidate with or into U.S. Borrower or any
U.S. Subsidiary Guarantor (as long as U.S. Borrower or a U.S. Subsidiary
Guarantor is the surviving person in such merger or consolidation and
remains a Wholly Owned Subsidiary of Parent); provided that the Lien on
and security interest in such property granted or to be granted in favor
of the Collateral Agent under the Security Documents shall be maintained
or created in accordance with the provisions of Section 5.10 or Section
5.11, as applicable and (y) any Non-Guarantor Subsidiary may transfer
property or lease to or acquire or lease property from any Non-Guarantor
Subsidiary or may be merged into any other Non-Guarantor Subsidiary; and
(d) Canadian Borrower or any Canadian Subsidiaries may merge or
consolidate with or into Canadian Borrower or any Canadian Subsidiary
Guarantor (as long as Canadian Borrower or a Canadian Subsidiary Guarantor
is the surviving person in such merger or consolidation and remains a
Wholly Owned Subsidiary of Parent); provided that the Lien on and security
interest in such property granted or to be granted in favor of the
Collateral Agent under the Security Documents shall be maintained or
created in accordance with the provisions of Section 5.10 or Section 5.11,
as applicable; and
(e) any Subsidiary (other than Canadian Borrower) may dissolve,
liquidate or wind up its affairs at any time; provided that such
dissolution, liquidation or winding up, as applicable, could not
reasonably be expected to have a Material Adverse Effect; and
(f) Holdings may merge with or into or consolidate with or into
Parent in connection with any IPO, as long as the surviving person assumes
all of the obligations of Parent under the Loan Documents and no Default
shall have occurred and be continuing.
To the extent the Required Lenders waive the provisions of this
Section 6.05 with respect to the sale of any Collateral, or any Collateral is
sold as permitted by this Section 6.05, such Collateral (unless sold to a
Company) shall be sold free and clear of the Liens created by the Security
Documents, and the Agents shall take all actions they deem appropriate in order
to effect the foregoing.
SECTION 6.06 ASSET SALES. Effect any Asset Sale, or agree to effect
any Asset Sale, except that the following shall be permitted subject to Section
2.10(c):
(a) disposition of used, worn out, obsolete or surplus property by
any Loan Party in the ordinary course of business and the abandonment or
other disposition of Intellectual Property that is, in the reasonable
judgment of U.S. Borrower, no longer economically practicable to maintain
or useful in the conduct of the business of the Companies taken as a
whole;
(b) Asset Sales (other than Asset Sales of Equity Interests in
Canadian Borrower); provided that the aggregate consideration received in
respect of all Asset Sales pursuant to this clause (b) shall not exceed
$40.0 million in any four consecutive fiscal quarters of U.S. Borrower;
(c) leases of real or personal property in the ordinary course of
business and in accordance with the applicable Security Documents;
(d) the Transactions as contemplated by the Transaction Documents
and the Second Amendment Transactions as contemplated by the Second
Amendment Transaction Documents;
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(e) mergers and consolidations in compliance with Section 6.05;
(f) Investments in compliance with Section 6.04;
(g) Permitted Sale and Leaseback Transactions;
(h) the sale of (X) (i) all, but not less than all, of the Equity
Interests in Canadian Borrower or (ii) all or substantially all of the
assets of Canadian Borrower; provided that, in the case of (ii), all
Canadian Term Loans and Obligations related thereto are repaid prior to or
simultaneously with such Asset Sale, (Y) all, but not less than all, of
the Equity Interests in, or all or substantially all of the assets of,
Kroy Building Products, Inc. or (Z) all, but not less than all, of the
Equity Interests in, or all or substantially all of the assets of, Great
Lakes Window, Inc. and/or Napco Window Systems, Inc.;
(i) U.S. Borrower and the Subsidiaries may sell Cash Equivalents in
the ordinary course of business;
(j) sales, transfers and dispositions of accounts receivable in
connection with the compromise, settlement or collection thereof; and
(k) within 365 days after the consummation of a Permitted
Acquisition, the sale, transfer or disposition for cash, and for fair
market value, of assets acquired in connection with such Permitted
Acquisition and not required in the operation of the business of U.S.
Borrower or any of the Subsidiaries.
To the extent the Required Lenders waive the provisions of this
Section 6.06 with respect to the sale of any Collateral, or any Collateral is
sold as permitted by this Section 6.06, such Collateral (unless sold to a
Company) shall be sold free and clear of the Liens created by the Security
Documents, and the Agents shall take all actions they deem appropriate in order
to effect the foregoing.
SECTION 6.07 ACQUISITIONS. Purchase or otherwise acquire (in one or
a series of related transactions) any part of the property (whether tangible or
intangible) of any person (or agree to do any of the foregoing at any future
time), except that the following shall be permitted:
(a) Capital Expenditures by U.S. Borrower and the Subsidiaries shall
be permitted to the extent permitted by Section 6.10(c);
(b) purchases and other acquisitions of inventory, materials,
equipment and intangible property in the ordinary course of business;
(c) Investments in compliance with Section 6.04;
(d) leases of real or personal property in the ordinary course of
business and in accordance with the applicable Security Documents;
(e) the Transactions as contemplated by the Transaction Documents
and the Second Amendment Transactions as contemplated by the Second
Amendment Transaction Documents;
(f) Permitted Acquisitions; and
(g) mergers and consolidations in compliance with Section 6.05;
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provided that the Lien on and security interest in such property granted or to
be granted in favor of the Collateral Agent under the Security Documents shall
be maintained or created in accordance with the provisions of Section 5.10 or
Section 5.11, as applicable.
SECTION 6.08 DIVIDENDS. Authorize, declare or pay, directly or
indirectly, any Dividends with respect to any Company, except that the following
shall be permitted:
(a) Dividends by any Company to U.S. Borrower, Canadian Borrower or
any Subsidiary of U.S. Borrower and to minority equityholders of any
Subsidiary paid ratably;
(b) payments by U.S. Borrower or by Holdings to permit Holdings or
Parent, and which are used by Holdings or Parent, to redeem Equity
Interests of U.S. Borrower, Holdings or Parent held by officers, directors
or employees or former officers, directors or employees (or their
transferees, estates or beneficiaries under their estates), upon their
death, disability, retirement, severance or termination of employment or
service; provided that the aggregate cash consideration paid for all such
redemptions shall not exceed the sum of (A) $7.5 million during any
calendar year (with unused amounts being available to be used in the
following calendar year, but not in any succeeding calendar year) plus (B)
the amount of any Net Cash Proceeds received by or contributed to U.S.
Borrower from the issuance and sale after the Original Closing Date of
Qualified Capital Stock of Parent, Holdings or U.S. Borrower to its
officers, directors or employees that have not been applied to the payment
of Dividends pursuant to this clause (b), plus (C) the Net Cash Proceeds
of any "key-man" life insurance policies that have not been applied to the
payment of Dividends pursuant to this clause (b);
(c) (A) to the extent actually used by Parent and Holdings to pay
such taxes, costs and expenses, payments by U.S. Borrower to or on behalf
of Parent and Holdings in an amount sufficient to pay franchise taxes and
other fees required to maintain the legal existence of Parent and Holdings
and (B) payments by U.S. Borrower to or on behalf of Parent and Holdings
in an amount sufficient to pay out-of-pocket legal, accounting and filing
costs and other expenses in the nature of overhead of Parent and Holdings,
in the case of clauses (A) and (B) in an aggregate amount not to exceed
$750,000 in any fiscal year;
(d) Permitted Tax Distributions by U.S. Borrower to Parent or
Holdings, so long as Parent or Holdings uses such distributions to pay its
taxes;
(e) distributions of the proceeds of any Permitted Parent Debt to
Holdings; and
(f) distributions to Parent in order to enable Parent or Holdings to
pay, and which are used by Parent or Holdings to pay, customary and
reasonable costs and expenses of an offering of securities of Parent or
Holdings that is not consummated.
SECTION 6.09 TRANSACTIONS WITH AFFILIATES. Enter into, directly or
indirectly, any transaction or series of related transactions, whether or not in
the ordinary course of business, with any Affiliate of any Company (other than
between or among U.S. Borrower and one or more U.S. Subsidiary Guarantors or
between or among Canadian Borrower and one or more Canadian Subsidiary
Guarantors), other than on terms and conditions at least as favorable to such
Company as would reasonably be obtained by such Company at that time in a
comparable arm's-length transaction with a person other than an Affiliate,
except that the following shall be permitted:
(a) Dividends permitted by Section 6.08;
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(b Investments permitted by Sections 6.04(e), (f), (i) and, to the
extent such Investments are in Subsidiaries, (m);
(c) reasonable and customary director, officer and employee
compensation (including bonuses) and other benefits (including retirement,
health, stock option and other benefit plans) and indemnification,
compensation, employment and severance agreements, in each case approved
by the Board of Directors;
(d) transactions with customers, clients, suppliers, joint venture
partners or purchasers or sellers of goods and services, in each case in
the ordinary course of business and otherwise not prohibited by the Loan
Documents;
(e) so long as no Default exists, the payment of regular management
fees and transaction fees payable upon acquisitions, divestitures and the
sale of Parent, to Sponsor in the amounts and at the times specified in
the Advisory Services Agreement, as in effect on the Original Closing Date
or as thereafter amended or replaced in any manner, that, taken as a
whole, is not more adverse to the interests of the Lenders in any material
respect than such agreement as it was in effect on the Original Closing
Date;
(f) sales or issuances of Qualified Capital Stock to Affiliates of
U.S. Borrower not otherwise prohibited by the Loan Documents and the
granting of registration and other customary rights in connection
therewith;
(g) any transaction with an Affiliate where the only consideration
paid by any Loan Party is Qualified Capital Stock;
(h) the Transactions as contemplated by the Transaction Documents
and the Second Amendment Transactions as contemplated by the Second
Amendment Transaction Documents;
(i) the entering into of a tax sharing agreement, or payments
pursuant thereto, between U.S. Borrower and/or one or more Subsidiaries,
on the one hand, and any other person with which U.S. Borrower or such
Subsidiaries are required or permitted to file a consolidated tax return
or with which U.S. Borrower or such Subsidiaries are part of a
consolidated group for tax purposes, on the other hand, which payments by
U.S. Borrower and its Subsidiaries are not in excess of the tax
liabilities that would have been payable by them on a stand-alone basis;
(j) entering into an agreement that provides registration rights to
the shareholders of U.S. Borrower, Holdings or Parent or amending any such
agreement with shareholders of U.S. Borrower, Holdings or Parent and the
performance of such agreements;
(k) any transaction with a joint venture or similar entity which
would constitute a transaction with an Affiliate solely because U.S.
Borrower or any of its Subsidiaries owns an equity interest in or
otherwise controls such joint venture or similar entity; provided that no
Affiliate of U.S. Borrower or any of its Subsidiaries other than U.S.
Borrower or any Subsidiary of U.S. Borrower shall have a beneficial
interest in such joint venture or similar entity;
(l) any merger, consolidation or reorganization of U.S. Borrower
with an Affiliate, solely for the purposes of (a) reorganizing to
facilitate an IPO of securities of U.S. Borrower, Holdings, Parent or
other holding company, (b) forming a holding company or (c)
reincorporating U.S. Borrower in a new jurisdiction;
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(m) sales of inventory between or among U.S. Borrower and/or one or
more of its Subsidiaries in the ordinary course of business; and
(n) (i) any agreement in effect on the Second Amendment
Effectiveness Date listed on Schedule 6.09(n), as in effect on the Second
Amendment Effectiveness Date or as thereafter amended or replaced in any
manner, that, taken as a whole, is not more adverse to the interests of
the Lenders in any material respect than such agreement as it was in
effect on the Second Amendment Effectiveness Date or (ii) any transaction
pursuant to any agreement referred to in the immediately preceding clause
(i).
SECTION 6.10 FINANCIAL COVENANTS. (a) Maximum Total Leverage Ratio.
Permit the Total Leverage Ratio, at any date during any period set forth in the
table below, to exceed the ratio set forth opposite such period in the table
below:
TEST PERIOD LEVERAGE RATIO
----------- --------------
Closing Date - March 31, 2005 6.35 to 1.0
April 1, 2005 - September 30, 2005 6.25 to 1.0
October 1, 2005 - December 31, 2005 6.10 to 1.0
January 1, 2006 - June 30, 2006 6.00 to 1.0
July 1, 2006 - September 30, 2006 5.90 to 1.0
October 1, 2007 - March 31, 2007 5.65 to 1.0
April 1, 2007 - June 30, 2007 5.50 to 1.0
July 1, 2007 - September 30, 2007 5.25 to 1.0
October 1, 2007 - June 30, 2008 5.00 to 1.0
July 1, 2008 - September 30, 2008 4.75 to 1.0
October 1, 2008 - March 31, 2009 4.50 to 1.0
April 1, 2009 - September 30, 2009 4.25 to 1.0
October 1, 2009 and thereafter 4.00 to 1.0
(b) Minimum Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio, for any Test Period ending during any period set forth
in the table below, to be less than the ratio set forth opposite such period in
the table below:
INTEREST
TEST PERIOD COVERAGE RATIO
----------- --------------
Closing Date - March 31, 2005 1.80 to 1.0
April 1, 2005 - March 31, 2006 1.90 to 1.0
April 1, 2006 - December 31, 2006 2.00 to 1.0
January 1, 2007 - June 30, 2007 2.10 to 1.0
July 1, 2007 - December 31, 2007 2.15 to 1.0
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INTEREST
TEST PERIOD COVERAGE RATIO
----------- --------------
January 1, 2008 - March 31, 2008 2.20 to 1.0
April 1, 2008 - September 30, 2008 2.25 to 1.0
October 1, 2008 - September 30, 2009 2.35 to 1.0
October 1, 2009 and thereafter 2.50 to 1.0
(c) Limitation on Capital Expenditures. Permit the aggregate amount
of Capital Expenditures made in any period set forth below, to exceed the amount
set forth opposite such period below:
PERIOD AMOUNT (IN MILLIONS)
------ --------------------
Closing Date - December 31, 2004 $25.0
January 1, 2005 - December 31, 2005 $25.0
January 1, 2006 - December 31, 2006 $25.0
January 1, 2007 - December 31, 2007 $27.5
January 1, 2008 - December 31, 2008 $27.5
Each calendar year ending after 2008 $30.0
; provided, however, that (x) if the aggregate amount of Capital Expenditures
made in any fiscal year shall be less than the maximum amount of Capital
Expenditures permitted under this Section 6.10(c) for such fiscal year (before
giving effect to any carryover), then an amount of such shortfall not exceeding
50% of such maximum amount (without giving effect to clause (z) below) (the
"CAPEX CARRYFORWARD AMOUNT") may be added to the amount of Capital Expenditures
permitted under this Section 6.10(c) for the immediately succeeding (but not any
other) fiscal year, (y) in determining whether any amount is available for
carryover, the amount expended in any fiscal year shall first be deemed to be
from the amount allocated to such fiscal year (before giving effect to any
carryover) and (z) the amount set forth in the table above for any period may be
increased by the amount of Net Cash Proceeds of Excluded Issuances designated
for Capital Expenditures for such period during such period.
SECTION 6.11 PREPAYMENTS OF OTHER INDEBTEDNESS; MODIFICATIONS OF
ORGANIZATIONAL DOCUMENTS AND OTHER DOCUMENTS, etc. Directly or indirectly:
(a) make (or give any notice in respect thereof) any voluntary or
optional payment or prepayment on or redemption or acquisition for value
of, or any prepayment or redemption as a result of any asset sale, change
of control or similar event of, any Indebtedness outstanding under the
Senior Subordinated Notes, the New Senior Subordinated Notes or any other
Subordinated Indebtedness, except as otherwise permitted by this
Agreement;
(b) amend or modify, or permit the amendment or modification of, any
provision of any Transaction Document or any Second Amendment Transaction
Document in any manner that is adverse in any material respect to the
interests of the Lenders;
(c) terminate, amend, modify (not including electing to treat any
Pledged Interests (as defined in the U.S. Security Agreement) as a
"security" under Section 8-103 of the UCC so
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long as it has followed the Collateral Agent's reasonable requests to
ensure the perfection of the Collateral Agent's security interest in such
Pledged Interests) or change any of its Organizational Documents
(including by the filing or modification of any certificate of
designation) or any agreement to which it is a party with respect to its
Equity Interests (including any stockholders' agreement), or enter into
any new agreement with respect to its Equity Interests, other than any
such amendments, modifications or changes or such new agreements which are
not adverse in any material respect to the interests of the Lenders;
provided that Parent may issue such Equity Interests, so long as such
issuance is not prohibited by Section 6.13 or any other provision of this
Agreement, and may amend its Organizational Documents to authorize any
such Equity Interests; or
(d) cause or permit any other obligation (other than the Obligations
and the Guaranteed Obligations) to constitute Designated Senior Debt (as
defined in the Senior Subordinated Note Documents or the New Senior
Subordinated Note Documents).
Notwithstanding the foregoing, the MW Refinancing shall not be prohibited
by this Section 6.11.
SECTION 6.12 LIMITATION ON CERTAIN RESTRICTIONS ON SUBSIDIARIES. Directly
or indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by U.S. Borrower or any
Subsidiary, or pay any Indebtedness owed to U.S. Borrower or a Subsidiary, (b)
make loans or advances to U.S. Borrower or any Subsidiary or (c) transfer any of
its properties to U.S. Borrower or any Subsidiary, except for such encumbrances
or restrictions existing under or by reason of (i) applicable law; (ii) this
Agreement and the other Loan Documents; (iii) the Senior Subordinated Note
Documents as in effect on the Original Closing Date or the New Senior
Subordinated Note Documents as in effect on the Second Amendment Effectiveness
Date; (iv) customary provisions restricting subletting or assignment of any
lease governing a leasehold interest of a Subsidiary; (v) customary provisions
restricting assignment of any agreement entered into by a Subsidiary in the
ordinary course of business; (vi) any Lien permitted by Section 6.02 restricting
the transfer of the property subject thereto; (vii) customary restrictions and
conditions contained in any agreement relating to the sale of any property
permitted under Section 6.06 pending the consummation of such sale; (viii) any
agreement applicable to such Subsidiary in effect at the time such Subsidiary
becomes a Subsidiary of U.S. Borrower, so long as such agreement was not entered
into in connection with or in contemplation of such person becoming a Subsidiary
of U.S. Borrower; (ix) customary provisions in partnership agreements, limited
liability company organizational governance documents, asset sales and stock
sale agreements and other similar agreements entered into in the ordinary course
of business that restrict the transfer of ownership interests in such
partnership, limited liability company or similar person; (x) restrictions on
cash or other deposits or net worth imposed by suppliers or landlords under
contracts entered into in the ordinary course of business; (xi) any instrument
governing Indebtedness assumed in connection with any Permitted Acquisition,
which encumbrance or restriction is not applicable to any person, or the
properties or assets of any person, other than the person or the properties or
assets of the person so acquired; (xii) in the case of any joint venture which
is not a Loan Party in respect of any matters referred to in clauses (b) and (c)
above, restrictions in such person's Organizational Documents or pursuant to any
joint venture agreement or stockholders agreements solely to the extent of the
Equity Interests of or property held in the subject joint venture or other
entity; (xiii) any encumbrances or restrictions imposed by any amendments or
refinancings that are otherwise permitted by the Loan Documents of the
contracts, instruments or obligations referred to in clauses (iii), (viii) or
(xi) above; provided that such amendments or refinancings are no more materially
restrictive with respect to such encumbrances and restrictions than those prior
to such amendment or refinancing; or (xiv) encumbrances or restrictions
contained in Indebtedness of Foreign Subsidiaries, or municipal loan or related
agreements entered into in connection with the incurrence of industrial or
economic revenue bonds, permitted to be incurred under
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this Agreement; provided that any such encumbrances or restrictions are ordinary
and customary with respect to the type of Indebtedness being incurred under the
relevant circumstances and do not, in the good faith judgment of the Board of
Directors of U.S. Borrower, materially impair either Borrower's ability to make
payment on the Obligations when due.
SECTION 6.13 LIMITATION ON ISSUANCE OF CAPITAL STOCK.
(a) With respect to Parent, issue any Equity Interest that is not
Qualified Capital Stock.
(b) With respect to U.S. Borrower or any Subsidiary, issue any
Equity Interest (including by way of sales of treasury stock) or any options or
warrants to purchase, or securities convertible into, any Equity Interest,
except (i) for stock splits, stock dividends and additional issuances of Equity
Interests which do not decrease the percentage ownership of U.S. Borrower or any
Subsidiaries in any class of the Equity Interest of such Subsidiary; (ii)
Subsidiaries of U.S. Borrower formed after the Original Closing Date in
accordance with Section 6.14 may issue Equity Interests to U.S. Borrower or the
Subsidiary of Borrower which is to own such Equity Interests; and (iii) U.S.
Borrower may issue common stock that is Qualified Capital Stock to Parent. All
Equity Interests issued in accordance with this Section 6.13(b) shall, to the
extent required by Sections 5.10 and 5.11 or any Security Document, be delivered
to the Collateral Agent for pledge pursuant to the applicable Security Document.
SECTION 6.14 LIMITATION ON CREATION OF SUBSIDIARIES. Establish,
create or acquire any additional Subsidiaries without the prior written consent
of the Required Lenders; provided that, without such consent, U.S. Borrower may
(i) establish or create one or more Wholly Owned Subsidiaries of U.S. Borrower,
(ii) establish, create or acquire one or more Subsidiaries in connection with an
Investment made pursuant to Sections 6.04(f), (k) or (m) or (iii) acquire one or
more Subsidiaries in connection with a Permitted Acquisition, so long as, in
each case, Section 5.10(b) shall be complied with.
SECTION 6.15 BUSINESS.
(a) With respect to Parent, engage in any business activities or
have any properties or liabilities, other than (i) its ownership of the Equity
Interests of U.S. Borrower, (ii) obligations under the Loan Documents, the
Senior Subordinated Note Documents and the New Senior Subordinated Note
Documents and (iii) activities and properties incidental, ancillary or
complementary to the foregoing clauses (i) and (ii).
(b) With respect to U.S. Borrower and the Subsidiaries, engage
(directly or indirectly) in any business other than those businesses in which
U.S. Borrower and its Subsidiaries are engaged on the Second Amendment
Effectiveness Date as described in the Second Confidential Information
Memorandum (or, in the good faith judgment of the Board of Directors, which are
substantially related thereto or are reasonable extensions thereof).
SECTION 6.16 LIMITATION ON ACCOUNTING CHANGES. Make or permit, any
significant change in accounting policies or reporting practices, without the
consent of the Administrative Agent, which consent shall not be unreasonably
withheld, except changes that are required by GAAP.
SECTION 6.17 FISCAL YEAR. Change its fiscal year-end to a date other
than December 31.
SECTION 6.18 LEASE OBLIGATIONS. Create, incur, assume or suffer to
exist any obligations as lessee for the rental or hire of real or personal
property of any kind under leases or agreements
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to lease having an original term of one year or more other than (1) such
obligations existing on the Second Amendment Effectiveness Date, (2) such
obligations acquired in connection with a Permitted Acquisition that are not
incurred in anticipation of such Permitted Acquisition and are obligations only
of any legal entities acquired in such Permitted Acquisition and (3) with
respect to other obligations, created, incurred, assumed or suffered to exist
after the Second Amendment Effectiveness Date, such obligations that would cause
the direct and contingent liabilities of U.S. Borrower and its Subsidiaries, on
a consolidated basis, in respect of all such obligations created, incurred,
assumed or suffered to exist after the Second Amendment Effectiveness Date not
to exceed the sum of (i) $7.5 million and (ii) amounts payable in respect of
leases entered into in connection with Permitted Sale and Leaseback
Transactions, payable in any period of 12 consecutive months.
SECTION 6.19 NO FURTHER NEGATIVE PLEDGE. Enter into any agreement,
instrument, deed or lease which prohibits or limits the ability of any Loan
Party to create, incur, assume or suffer to exist any Lien upon any of their
respective properties or revenues, whether now owned or hereafter acquired, or
which requires the grant of any security for an obligation if security is
granted for another obligation, except the following: (1) this Agreement and the
other Loan Documents; (2) covenants in documents creating Liens permitted by
Section 6.02 prohibiting further Liens on the properties encumbered thereby; (3)
the Senior Subordinated Note Documents as in effect on the Original Closing Date
and the New Senior Subordinated Note Documents as in effect on the Second
Amendment Effectiveness Date; (4) any other agreement that does not restrict in
any manner (directly or indirectly) Liens created pursuant to the Loan Documents
on any Collateral securing the Obligations and does not require the direct or
indirect granting of any Lien securing any Indebtedness or other obligation by
virtue of the granting of Liens on or pledge of property of any Loan Party to
secure the Obligations; and (5) any prohibition or limitation that (a) exists
pursuant to applicable law, (b) consists of customary restrictions and
conditions contained in any agreement relating to the sale of any property
permitted under Section 6.06 pending the consummation of such sale, (c)
restricts subletting or assignment of any lease governing a leasehold interest
of U.S. Borrower or a Subsidiary, (d) exists in any agreement in effect at the
time such Subsidiary becomes a Subsidiary of U.S. Borrower, so long as such
agreement was not entered into in contemplation of such person becoming a
Subsidiary or (e) is imposed by any amendments or refinancings that are
otherwise permitted by the Loan Documents of the contracts, instruments or
obligations referred to in clause (3) or (5)(e); provided that such amendments
and refinancings are no more materially restrictive with respect to such
prohibitions and limitations than those prior to such amendment or refinancing.
SECTION 6.20 ANTI-TERRORISM LAW; ANTI-MONEY LAUNDERING.
(a) Directly or indirectly, (i) knowingly conduct any business or
engage in making or receiving any contribution of funds, goods or services to or
for the benefit of any person described in Section 3.22, (ii) knowingly deal in,
or otherwise engage in any transaction relating to, any property or interests in
property blocked pursuant to the Executive Order or any other Anti-Terrorism
Law, or (iii) knowingly engage in or conspire to engage in any transaction that
evades or avoids, or has the purpose of evading or avoiding, or attempts to
violate, any of the prohibitions set forth in any Anti-Terrorism Law (and the
Loan Parties shall deliver to the Lenders any certification or other evidence
requested from time to time by any Lender in its reasonable discretion,
confirming the Loan Parties' compliance with this Section 6.20).
(b) Cause or permit any of the funds of such Loan Party that are
used to repay the Loans to be derived from any unlawful activity with the result
that the making of the Loans would be in violation of law.
SECTION 6.21 EMBARGOED PERSON. Cause or permit (a) any of the funds
or properties of the Loan Parties that are used to repay the Loans to constitute
property of, or be beneficially
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owned directly or indirectly by, any person subject to sanctions or trade
restrictions under United States law ("EMBARGOED PERSON" or "EMBARGOED PERSONS")
that is identified on (1) the "List of Specially Designated Nationals and
Blocked Persons" (the "SDN LIST") maintained by OFAC and/or on any other similar
list ("OTHER LIST") maintained by OFAC pursuant to any authorizing statute
including, but not limited to, the International Emergency Economic Powers Act,
50 U.S.C. Section 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1
et seq., and any Executive Order or regulation promulgated thereunder, with the
result that the investment in the Loan Parties (whether directly or indirectly)
is prohibited by law, or the Loans made by the Lenders would be in violation of
law, or (2) the Executive Order, any related enabling legislation or any other
similar Executive Orders (collectively, "EXECUTIVE ORDERS"), or (b) any
Embargoed Person to have any direct or indirect interest, of any nature
whatsoever in the Loan Parties, with the result that the investment in the Loan
Parties (whether directly or indirectly) is prohibited by law or the Loans are
in violation of law.
ARTICLE VII
GUARANTEE
SECTION 7.01 THE GUARANTEE. Parent and each U.S. Subsidiary
Guarantor (the "U.S. GUARANTORS") hereby, jointly and severally guarantee, as a
primary obligor and not as a surety to each U.S. Secured Party and their
respective successors and assigns, the prompt payment in full when due (whether
at stated maturity, by required prepayment, declaration, demand, by acceleration
or otherwise) of the principal of and interest (including any interest, fees,
costs or charges that would accrue but for the provisions of the Title 11 of the
United States Code after any bankruptcy or insolvency petition under Title 11 of
the United States Code) on the Loans made by the Lenders to, and the Notes held
by each Lender of, U.S. Borrower, and all other U.S. Obligations from time to
time owing to the Secured Parties by any U.S. Loan Party under any Loan Document
in each case strictly in accordance with the terms thereof (such obligations
being herein collectively called the "U.S. GUARANTEED OBLIGATIONS"). Parent, the
U.S. Borrower and each Canadian Subsidiary Guarantor (the "CANADIAN GUARANTORS")
hereby, jointly and severally guarantee, as a primary obligor and not as a
surety to each Canadian Secured Party and their respective successors and
assigns, the prompt payment in full when due (whether at stated maturity, by
required prepayment, declaration, demand, by acceleration or otherwise) of the
principal of and interest (including any interest, fees, costs or charges that
would accrue but for the provisions of the Title 11 of the United States Code or
other applicable bankruptcy or insolvency legislation after any bankruptcy or
insolvency petition under Title 11 of the United States Code or other applicable
bankruptcy or insolvency legislation) on the Loans made by the Lenders to, and
the Notes held by each Lender of, Canadian Borrower, and all other Canadian
Obligations from time to time owing to the Canadian Secured Parties by any
Canadian Loan Party under any Loan Document in each case strictly in accordance
with the terms thereof (such obligations being herein collectively called the
"CANADIAN GUARANTEED OBLIGATIONS"). The U.S. Guarantors hereby jointly and
severally agree that if U.S. Borrower or other U.S. Guarantor(s) shall fail to
pay in full when due (whether at stated maturity, by acceleration or otherwise)
any of the U.S. Guaranteed Obligations, the U.S. Guarantors will promptly pay
the same in cash, without any demand or notice whatsoever, and that in the case
of any extension of time of payment or renewal of any of the U.S. Guaranteed
Obligations, the same will be promptly paid in full when due (whether at
extended maturity, by acceleration or otherwise) in accordance with the terms of
such extension or renewal. The Canadian Guarantors hereby jointly and severally
agree that if Canadian Borrower or other Canadian Guarantor(s) shall fail to pay
in full when due (whether at stated maturity, by acceleration or otherwise) any
of the Canadian Guaranteed Obligations, the Canadian Guarantors will promptly
pay the same in cash, without any demand or notice whatsoever, and that in the
case of any extension of time of payment or renewal of any of the Canadian
Guaranteed Obligations, the same will be promptly paid in full when due (whether
at extended maturity, by acceleration or otherwise) in accordance with the terms
of such extension or renewal.
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SECTION 7.02 OBLIGATIONS UNCONDITIONAL. The obligations of the
Guarantors under Section 7.01 shall constitute a guaranty of payment and to the
fullest extent permitted by applicable law, are absolute, irrevocable and
unconditional, joint and several, irrespective of the value, genuineness,
validity, regularity or enforceability of the Guaranteed Obligations of the
Borrowers under this Agreement, the Notes, if any, or any other agreement or
instrument referred to herein or therein, or any substitution, release or
exchange of any other guarantee of or security for any of the Guaranteed
Obligations, and, irrespective of any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a surety or
Guarantor (except for payment in full). Without limiting the generality of the
foregoing, it is agreed that the occurrence of any one or more of the following
shall not alter or impair the liability of the Guarantors hereunder which shall
remain absolute, irrevocable and unconditional under any and all circumstances
as described above:
(i) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or the Notes, if any, or any other agreement or instrument
referred to herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be amended in any
respect, or any right under the Loan Documents or any other agreement or
instrument referred to herein or therein shall be amended or waived in any
respect or any other guarantee of any of the Guaranteed Obligations or any
security therefor shall be released or exchanged in whole or in part or
otherwise dealt with;
(iv) any Lien or security interest granted to, or in favor of,
Issuing Bank or any Lender or Agent as security for any of the Guaranteed
Obligations shall fail to be perfected; or
(v) the release of any other Guarantor pursuant to Section 7.09.
The Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that any
Secured Party exhaust any right, power or remedy or proceed against either
Borrower under this Agreement or the Notes, if any, or any other agreement or
instrument referred to herein or therein, or against any other person under any
other guarantee of, or security for, any of the Guaranteed Obligations. The
Guarantors waive any and all notice of the creation, renewal, extension, waiver,
termination or accrual of any of the Guaranteed Obligations and notice of or
proof of reliance by any Secured Party upon this Guarantee or acceptance of this
Guarantee, and the Guaranteed Obligations, and any of them, shall conclusively
be deemed to have been created, contracted or incurred in reliance upon this
Guarantee, and all dealings between the Borrowers and the Secured Parties shall
likewise be conclusively presumed to have been had or consummated in reliance
upon this Guarantee. This Guarantee shall be construed as a continuing,
absolute, irrevocable and unconditional guarantee of payment without regard to
any right of offset with respect to the Guaranteed Obligations at any time or
from time to time held by Secured Parties, and the obligations and liabilities
of the Guarantors hereunder shall not be conditioned or contingent upon the
pursuit by the Secured Parties or any other person at any time of any right or
remedy against either Borrower or against any other person which may be or
become liable in respect of all or any part of the Guaranteed Obligations or
against any collateral security or guarantee therefor or right of offset with
respect thereto. This Guarantee shall remain in full force and effect and be
binding in accordance with and to the extent of its terms upon the Guarantors
and the successors and assigns thereof, and shall inure to the benefit of the
Lenders, and their
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respective successors and assigns, notwithstanding that from time to time during
the term of this Agreement there may be no Guaranteed Obligations outstanding.
SECTION 7.03 REINSTATEMENT. The obligations of the Guarantors under
this Article VII shall be automatically reinstated if and to the extent that for
any reason any payment by or on behalf of the Borrowers or other Loan Party in
respect of the applicable Guaranteed Obligations is rescinded or must be
otherwise restored by any holder of any of the applicable Guaranteed
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise.
SECTION 7.04 SUBROGATION; SUBORDINATION. Each Guarantor hereby
agrees that until the indefeasible payment and satisfaction in full in cash of
all applicable Guaranteed Obligations and the expiration and termination of the
Commitments of the Lenders under this Agreement it shall waive any claim and
shall not exercise any right or remedy, direct or indirect, arising by reason of
any performance by it of its guarantee in Section 7.01, whether by subrogation
or otherwise, against either Borrower or any other Guarantor of any of the
applicable Guaranteed Obligations or any security for any of the applicable
Guaranteed Obligations. Any Indebtedness of any Loan Party permitted pursuant to
Section 6.01(d) shall be subordinated to such Loan Party's Obligations in the
manner set forth in the Intercompany Note evidencing such Indebtedness.
SECTION 7.05 REMEDIES. The Guarantors jointly and severally agree
that, as between the Guarantors and the Lenders, the obligations of either
Borrower under this Agreement and the Notes, if any, may be declared to be
forthwith due and payable as provided in Article VIII (and shall be deemed to
have become automatically due and payable in the circumstances provided in said
Article VIII) for purposes of Section 7.01, notwithstanding any stay, injunction
or other prohibition preventing such declaration (or such obligations from
becoming automatically due and payable) as against either Borrower and that, in
the event of such declaration (or such obligations being deemed to have become
automatically due and payable), such obligations (whether or not due and payable
by either Borrower) shall forthwith become due and payable by the applicable
Guarantors for purposes of Section 7.01.
SECTION 7.06 INSTRUMENT FOR THE PAYMENT OF MONEY. Each Guarantor
hereby acknowledges that the guarantee in this Article VII constitutes an
instrument for the payment of money, and consents and agrees that any Lender or
Agent, at its sole option, in the event of a dispute by such Guarantor in the
payment of any moneys due hereunder, shall have the right to bring a
motion-action under New York CPLR Section 3213.
SECTION 7.07 CONTINUING GUARANTEE. The guarantee in this Article VII
is a continuing guarantee of payment, and shall apply to all applicable
Guaranteed Obligations whenever arising.
SECTION 7.08 GENERAL LIMITATION ON GUARANTEE OBLIGATIONS. In any
action or proceeding involving any state corporate limited partnership or
limited liability company law, or any applicable state, federal or foreign
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Guarantor under Section 7.01
would otherwise be held or determined to be void, voidable, invalid or
unenforceable, or subordinated to the claims of any other creditors, on account
of the amount of its liability under Section 7.01, then, notwithstanding any
other provision to the contrary, the amount of such liability shall, without any
further action by such Guarantor, any Loan Party or any other person, be
automatically limited and reduced to the highest amount that is valid and
enforceable and not subordinated to the claims of other creditors as determined
in such action or proceeding.
SECTION 7.09 RELEASE OF GUARANTORS. If, in compliance with the terms
and provisions of the Loan Documents, all or substantially all of the Equity
Interests or property of any Guarantor
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are sold or otherwise transferred (a "TRANSFERRED GUARANTOR") to a person or
persons, none of which is U.S. Borrower or a Subsidiary, such Transferred
Guarantor shall, upon the consummation of such sale or transfer, be released
from its obligations under this Agreement (including under Section 11.03 hereof)
and its obligations to pledge and grant any Collateral owned by it pursuant to
any Security Document and, in the case of a sale of all or substantially all of
the Equity Interests of the Transferred Guarantor, the pledge of such Equity
Interests to the Collateral Agent pursuant to the Security Documents shall be
released, and the Collateral Agent shall take such actions as are necessary to
effect each release described in this Section 7.09 in accordance with the
relevant provisions of the Security Documents.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01 EVENTS OF DEFAULT. Upon the occurrence and during the
continuance of the following events ("EVENTS OF DEFAULT"):
(a) default shall be made in the payment of any principal of any
Loan or any Reimbursement Obligation when and as the same shall become due
and payable, whether at the due date thereof (including a Term Loan
Repayment Date) or at a date fixed for prepayment (whether voluntary or
mandatory) thereof or by acceleration thereof or otherwise;
(b) default shall be made in the payment of any interest on any Loan
or any Fee or any other amount (other than an amount referred to in
paragraph (a) above) due under any Loan Document, when and as the same
shall become due and payable, and such default shall continue unremedied
for a period of three Business Days;
(c) any representation or warranty made or deemed made in or in
connection with any Loan Document or the borrowings or issuances of
Letters of Credit hereunder, or any representation, warranty, statement or
information contained in any report, certificate, financial statement or
other instrument furnished in connection with or pursuant to any Loan
Document, shall prove to have been false or misleading in any material
respect when so made, deemed made or furnished;
(d) default shall be made in the due observance or performance by
any Company of any covenant, condition or agreement contained in Section
5.02, 5.03(a) or 5.08 or in Article VI;
(e) default shall be made in the due observance or performance by
any Company of any covenant, condition or agreement contained in any Loan
Document (other than those specified in paragraphs (a), (b) or (d)
immediately above) and such default shall continue unremedied or shall not
be waived for a period of 30 days after written notice thereof from the
Administrative Agent or the Required Lenders to U.S. Borrower;
(f) any Company shall (i) fail to pay any principal or interest,
regardless of amount, due in respect of any Indebtedness (other than the
Obligations), when and as the same shall become due and payable beyond any
applicable grace period, or (ii) fail to observe or perform any other
term, covenant, condition or agreement contained in any agreement or
instrument evidencing or governing any such Indebtedness if the effect of
any failure referred to in this clause (ii) is to cause, or to permit the
holder or holders of such Indebtedness or a trustee or other
representative on its or their behalf (with or without the giving of
notice, the lapse of time or both) to cause, such Indebtedness to become
due prior to its stated maturity or become subject to a mandatory offer
purchase by the obligor; provided that it shall not constitute an Event of
Default pursuant to
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this paragraph (f) unless the aggregate amount of all such Indebtedness
referred to in clauses (i) and (ii) exceeds $15.0 million at any one time
(provided that, in the case of Hedging Obligations, the amount counted for
this purpose shall be the amount payable by all Companies if such Hedging
Obligations were terminated at such time);
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of any Company, or of a substantial part of the property
of any Company, under Title 11 of the Code, as now constituted or
hereafter amended, or any other federal, state or foreign bankruptcy,
insolvency, receivership or similar law; (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for any Company or for a substantial part of the property of any
Company; or (iii) the winding-up or liquidation of any Company; and such
proceeding or petition shall continue undismissed for 60 days or an order
or decree approving or ordering any of the foregoing shall be entered;
(h) any Company shall (i) voluntarily commence any proceeding or
file any petition seeking relief under Title 11 of the United States Code,
as now constituted or hereafter amended, or any other federal, state or
foreign bankruptcy, insolvency, receivership or similar law; (ii) consent
to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or the filing of any petition described in clause
(g) above; (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for any
Company or for a substantial part of the property of any Company; (iv)
file an answer admitting the material allegations of a petition filed
against it in any such proceeding; (v) make a general assignment for the
benefit of creditors; (vi) become unable, admit in writing its inability
or fail generally to pay its debts as they become due; (vii) take any
action for the purpose of effecting any of the foregoing; or (viii) wind
up or liquidate;
(i) one or more judgments, orders or decrees for the payment of
money in an aggregate amount in excess of $15.0 million shall be rendered
against any Company or any combination thereof and the same shall remain
undischarged, unvacated or unbonded for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor to levy upon properties of
any Company to enforce any such judgment;
(j) one or more ERISA Events or with respect to Foreign Plans
noncompliance with applicable legal requirements or Foreign Plan
underfunding shall have occurred that, in the reasonable opinion of the
Required Lenders, when taken together with all other such ERISA Events and
with respect to Foreign Plans noncompliance with applicable legal
requirements or Foreign Plan underfunding that have occurred, could
reasonably be expected to result in a Material Adverse Effect or the
imposition of a Lien on any properties of a Company;
(k) any security interest and Lien purported to be created by any
Security Document shall cease to be in full force and effect, or shall
cease to give the Collateral Agent, for the benefit of the applicable
Secured Parties, the Liens, rights, powers and privileges purported to be
created and granted under such Security Documents (including a perfected
first priority security interest in and Lien on, all of the Collateral
thereunder (except as otherwise expressly provided in such Security
Document)) in favor of the Collateral Agent, or shall be asserted by U.S.
Borrower or any other Loan Party not to be, a valid, perfected, first
priority (except as otherwise expressly provided in this Agreement or such
Security Document) security interest in or Lien on the Collateral covered
thereby;
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(l) any Loan Document or any material provisions thereof shall at
any time and for any reason be declared by a court of competent
jurisdiction to be null and void, or a proceeding shall be commenced by
any Loan Party or any other person, or by any Governmental Authority,
seeking to establish the invalidity or unenforceability thereof (exclusive
of questions of interpretation of any provision thereof), or any Loan
Party shall repudiate or deny any portion of its liability or obligation
for the Obligations;
(m) there shall have occurred a Change in Control;
(n) the Acquisition shall not have occurred on the Original Closing
Date in accordance with the terms and conditions of the Acquisition
Agreement; or
(o) the MW Acquisition shall not have occurred on the Second
Amendment Effectiveness Date in accordance with the terms and conditions
of the MW Acquisition Agreement; or
(p) the failure by either Borrower to make an Offer to Redeem when
and as required by Section 2.10;
then, and in every such event (other than an event with respect to Parent or
either Borrower described in paragraph (g) or (h) above), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Borrowers,
take either or both of the following actions, at the same or different times:
(i) terminate forthwith the Commitments and (ii) declare the Loans and
Reimbursement Obligations then outstanding to be forthwith due and payable in
whole or in part, whereupon the principal of the Loans and Reimbursement
Obligations so declared to be due and payable, together with accrued interest
thereon and any unpaid accrued Fees and all other liabilities of the Borrowers
accrued hereunder and under any other Loan Document, shall become forthwith due
and payable, without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived by the Borrowers and the
Guarantors, anything contained herein or in any other Loan Document to the
contrary notwithstanding; and in any event, with respect to Parent or either
Borrower described in paragraph (g) or (h) above, the Commitments shall
automatically terminate and the principal of the Loans and Reimbursement
Obligations then outstanding, together with accrued interest thereon and any
unpaid accrued Fees and all other liabilities of the Borrowers accrued hereunder
and under any other Loan Document, shall automatically become due and payable,
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived by the Borrowers and the Guarantors, anything
contained herein or in any other Loan Document to the contrary notwithstanding.
ARITCLE IX
COLLATERAL ACCOUNT; APPLICATION OF COLLATERAL PROCEEDS
SECTION 9.01 COLLATERAL ACCOUNT.
(a) The Collateral Agent is hereby authorized to establish and
maintain at its office at 677 Washington Boulevard, Stamford, Connecticut 06901,
in the name of the Collateral Agent, a restricted deposit account designated
"Ply Gem Industries, Inc. U.S. Collateral Account." Each U.S. Loan Party shall
deposit into the U.S. Collateral Account from time to time (i) the cash proceeds
of any of the U.S. Security Agreement Collateral (including pursuant to any
disposition thereof) to the extent contemplated herein or in any other Loan
Document, (ii) the cash proceeds of any Casualty Event with respect to U.S.
Security Agreement Collateral, to the extent contemplated herein or in any other
Loan Document,
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and (iii) any cash such U.S. Loan Party is required to pledge as additional
collateral security hereunder pursuant to the Loan Documents.
The Collateral Agent is hereby authorized to establish and
maintain at its office at 677 Washington Boulevard, Stamford, Connecticut 06901,
in the name of the Collateral Agent, a restricted deposit account designated
"CWD Windows and Doors, Inc. Canadian Collateral Account." Each Canadian Loan
Party shall deposit into the Canadian Collateral Account from time to time (i)
the cash proceeds of any of the Canadian Security Agreement Collateral
(including pursuant to any disposition thereof) to the extent contemplated
herein or in any other Loan Document, (ii) the cash proceeds of any Casualty
Event with respect to Canadian Security Agreement Collateral, to the extent
contemplated herein or in any other Loan Document, and (iii) any cash such
Canadian Loan Party is required to pledge as additional collateral security
hereunder pursuant to the Loan Documents.
(b) The balance from time to time in either Collateral Account shall
constitute part of the relevant Collateral and shall not constitute payment of
the Obligations until applied as hereinafter provided. So long as no Event of
Default has occurred and is continuing or will result therefrom, the Collateral
Agent shall within two Business Days of receiving a request of the applicable
Loan Party for release of cash proceeds (i) from the Collateral Account
constituting Net Cash Proceeds relating to any Casualty Event or Asset Sale
remit such cash proceeds on deposit in either Collateral Account to or upon the
order of such Loan Party, so long as such Loan Party has satisfied the
conditions relating thereto set forth in Section 9.02 and (ii) with respect to
the LC Sub-Account, remit such Net Cash Proceeds on deposit in the LC
Sub-Account to or upon the order of such U.S. Loan Party (x) at such time as all
Letters of Credit shall have been terminated and all of the liabilities in
respect of the Letters of Credit have been paid in full or (y) otherwise in
accordance with Section 2.18(i). At any time following the occurrence and during
the continuance of an Event of Default, the Collateral Agent may (and, if
instructed by the Required Lenders as specified herein, shall) in its (or their)
discretion apply or cause to be applied (subject to collection) the balance from
time to time outstanding to the credit of either Collateral Account to the
payment of the applicable Obligations in the manner specified in Section 9.03
hereof subject, however, in the case of amounts deposited in the LC Sub-Account,
to the provisions of Sections 2.18(i) and 9.03. The Loan Parties shall have no
right to withdraw, transfer or otherwise receive any funds deposited in either
Collateral Account except to the extent specifically provided herein.
(c) Amounts on deposit in either Collateral Account shall be
invested and reinvested from time to time in Cash Equivalents as the applicable
Loan Party (or, after the occurrence and during the continuance of an Event of
Default, the Collateral Agent) shall determine by written instruction to the
Collateral Agent, or if no such instructions are given, then as the Collateral
Agent, in its sole discretion, shall determine which Cash Equivalents shall be
held in the name and be under the control of the Collateral Agent (or any
sub-agent); provided that at any time after the occurrence and during the
continuance of an Event of Default, the Collateral Agent may (and, if instructed
by the Required Lenders as specified herein, shall) in its (or their) discretion
at any time and from time to time elect to liquidate any such Cash Equivalents
and to apply or cause to be applied the proceeds thereof to the payment of the
applicable Obligations in the manner specified in Section 9.03 hereof subject,
however, in the case of amounts deposited in the LC Sub-Account, to the
provisions of Section 2.18(i).
(d) Amounts deposited into the U.S. Collateral Account as cover for
liabilities in respect of Letters of Credit under any provision of this
Agreement requiring such cover shall be held by the Administrative Agent in a
separate sub-account designated as the "LC Sub-Account" (the "LC SUB-ACCOUNT")
and, subject to Section 2.18(i), all amounts held in the LC Sub-Account shall
constitute collateral security to be applied in accordance with Section 2.18(i).
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(e) Earnings on the amounts deposited in any Collateral Account
shall be for the account of the applicable Loan Party and absent any Default
will be released to the applicable Borrower upon its request.
SECTION 9.02 PROCEEDS OF DESTRUCTION, TAKING AND COLLATERAL
DISPOSITIONS. So long as no Event of Default shall have occurred and be
continuing, in the event the applicable Loan Party elects to reinvest Net Cash
Proceeds in respect of any Asset Sale or Casualty Event in accordance with the
provisions of Sections 2.10(c) and 2.10(f) as applicable, the Collateral Agent
shall receive at least 10 days' prior notice of each request for payment and
shall not release any part of such Net Cash Proceeds, until the applicable Loan
Party has furnished to the Collateral Agent (i) an Officers' Certificate setting
forth: (A) a brief description of the reinvestment to be made, (B) the dollar
amount of the expenditures to be made, or costs incurred by such Loan Party in
connection with such reinvestment and (C) evidence that the properties acquired
in connection with such reinvestment have a fair market value at least equal to
the amount of such Net Cash Proceeds requested to be released from the
applicable Collateral Account and (ii) all security agreements and Mortgages and
other items required by the provisions of Sections 5.10 and 5.11 to, among other
things, subject such reinvestment properties to the Lien of the Security
Documents in favor of the Collateral Agent, for its benefit and for the benefit
of the other Secured Parties.
SECTION 9.03 APPLICATION OF PROCEEDS. The proceeds received by the
Collateral Agent in respect of any sale of, collection from or other realization
upon all or any part of the Collateral pursuant to the exercise by the
Collateral Agent of its remedies shall be applied, in full or in part, together
with any other sums then held by the Collateral Agent pursuant to this
Agreement, promptly by the Collateral Agent as follows:
(a) First, to the payment of all reasonable costs and expenses,
fees, commissions and taxes of such sale, collection or other realization
including compensation to the Collateral Agent and its agents and counsel,
and all expenses, liabilities and advances made or incurred by the
Collateral Agent in connection therewith and all amounts for which the
Collateral Agent is entitled to indemnification pursuant to the provisions
of any Loan Document, together with interest on each such amount at the
highest rate then in effect under this Agreement from and after the date
such amount is due, owing or unpaid until paid in full;
(b) Second, to the payment of all other reasonable costs and
expenses of such sale, collection or other realization including
compensation to the other applicable Secured Parties and their agents and
counsel and all costs, liabilities and advances made or incurred by the
other applicable Secured Parties in connection therewith, together with
interest on each such amount at the highest rate then in effect under this
Agreement from and after the date such amount is due, owing or unpaid
until paid in full;
(c) Third, without duplication of amounts applied pursuant to
clauses (a) and (b) above, to the indefeasible payment in full in cash,
pro rata, of interest and other amounts constituting applicable
Obligations (other than principal and Reimbursement Obligations) in each
case equally and ratably in accordance with the respective amounts thereof
then due and owing;
(d) Fourth, to the indefeasible payment in full in cash, pro rata,
of principal amount of the applicable Obligations (including Reimbursement
Obligations); and
(e) Fifth, the balance, if any, to the person lawfully entitled
thereto (including the applicable Loan Party or its successors or assigns)
or as a court of competent jurisdiction may direct.
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In the event that any such proceeds are insufficient to pay in full
the items described in clauses (a) through (e) of this Section 9.03, the
applicable Loan Parties shall remain liable, jointly and severally, for any
deficiency.
ARTICLE X
THE AGENTS
SECTION 10.01 APPOINTMENT. Each Lender hereby irrevocably designates
and appoints each of the Administrative Agent and the Collateral Agent as an
agent of such Lender under this Agreement and the other Loan Documents. Each
Lender irrevocably authorizes each Agent, in such capacity, through its agents
or employees, to take such actions on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to such Agent by the terms of this
Agreement and the other Loan Documents, together with such actions and powers as
are reasonably incidental thereto.
SECTION 10.02 AGENT IN ITS INDIVIDUAL CAPACITY. Each person serving
as an Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not an
Agent, and such person and its Affiliates may accept deposits from, lend money
to and generally engage in any kind of business with U.S. Borrower or any
Subsidiary or other Affiliate thereof as if it were not an Agent hereunder.
SECTION 10.03 EXCULPATORY PROVISIONS. No Agent shall have any duties
or obligations except those expressly set forth in the Loan Documents. Without
limiting the generality of the foregoing, (a) no Agent shall be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred
and is continuing, (b) no Agent shall have any duty to take any discretionary
action or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated by the Loan Documents that such Agent is required
to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 11.02), and (c) except as expressly set forth in the Loan
Documents, no Agent shall have any duty to disclose or shall be liable for the
failure to disclose, any information relating to U.S. Borrower or any of its
Subsidiaries that is communicated to or obtained by the bank serving as such
Agent or any of its Affiliates in any capacity. No Agent shall be liable for any
action taken or not taken by it with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 11.02) or in the
absence of its own gross negligence or willful misconduct. No Agent shall be
deemed to have knowledge of any Default unless and until written notice thereof
is given to such Agent by a Borrower or a Lender, and no Agent shall be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any Loan Document, (ii)
the contents of any certificate, report or other document delivered thereunder
or in connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan
Document.
SECTION 10.04 RELIANCE BY AGENT. Each 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 a proper person.
Each Agent also may rely upon any statement made to it orally and believed by it
to be made by a proper person, and shall not incur any liability for relying
thereon. Each Agent may consult with legal counsel (who may be counsel for
either Borrower), independent accountants and other advisors selected
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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 advisors.
SECTION 10.05 DELEGATION OF DUTIES. 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 Agent.
SECTION 10.06 SUCCESSOR AGENT. Each Agent may resign as such at any
time upon at least 30 days' prior notice to the Lenders, the Issuing Bank and
U.S. Borrower. Upon any such resignation, the Required Lenders shall have the
right, with, if no Default shall have occurred and be continuing, the consent of
Borrower (such consent not to be unreasonably withheld), to appoint a successor
Agent from among the Lenders. If no successor shall have been so appointed by
the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Agent gives notice of its resignation, then the retiring
Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor
Agent, which successor shall be a commercial banking institution organized under
the laws of the United States (or any State thereof) or a United States branch
or agency of a commercial banking institution, in each case, having combined
capital and surplus of at least $250 million; provided that if such retiring
Agent is unable to find a commercial banking institution which is willing to
accept such appointment and which meets the qualifications set forth above, the
retiring Agent's resignation shall nevertheless thereupon become effective, and
the Lenders shall assume and perform all of the duties of the Agent hereunder
until such time, if any, as the Required Lenders appoint a successor Agent.
Upon the acceptance of its appointment as an Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by U.S. Borrower to a successor Agent shall be the same as those payable
to its predecessor unless otherwise agreed between U.S. Borrower and such
successor. After an Agent's resignation hereunder, the provisions of this
Article X and Section 11.03 shall continue in effect for the benefit of such
retiring Agent, its sub-agents and their respective Affiliates in respect of any
actions taken or omitted to be taken by any of them while it was acting as
Agent.
SECTION 10.07 NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender
acknowledges that it has, independently and without reliance upon any Agent or
any other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon any Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished hereunder
or thereunder.
SECTION 10.08 NAME AGENTS. The parties hereto acknowledge that the
Documentation Agent and the Syndication Agent hold such titles in name only, and
that such titles confer no additional rights or obligations relative to those
conferred on any Lender hereunder.
SECTION 10.09 INDEMNIFICATION. The Lenders severally agree to
indemnify each Agent in its capacity as such (to the extent not reimbursed by
the Borrowers or the Guarantors and without limiting the obligation of the
Borrowers or the Guarantors to do so), ratably according to their respec-
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tive outstanding Loans and Commitments in effect on the date on which
indemnification is sought under this Section 10.09 (or, if indemnification is
sought after the date upon which all Commitments shall have terminated and the
Loans and Reimbursement Obligations shall have been paid in full, ratably in
accordance with such outstanding Loans and Commitments as in effect immediately
prior to such date), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever that may at any time (whether before or
after the payment of the Loans and Reimbursement Obligations) be imposed on,
incurred by or asserted against such Agent in any way relating to or arising out
of, the Commitments, this Agreement, any of the other Loan Documents or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from such Agent's gross negligence or
willful misconduct. The agreements in this Section shall survive the payment of
the Loans and all other amounts payable hereunder.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 NOTICES. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to any Loan Party, to U.S. Borrower at:
Ply Gem Industries, Inc.
303 West Major
Kearney, Missouri 64060
Attention: Chief Financial Officer
Telecopy No.: (816) 903-4330;
(b) if to the Administrative Agent, the Collateral Agent or the
Issuing Bank, to it at:
UBS AG, Stamford Branch
677 Washington Boulevard
Stamford, Connecticut 06901
Attention: Vladimira Holeckova
Telecopy No.: (203) 719-4176;
(c) if to a Lender, to it at its address (or telecopy number) set
forth on the applicable Lender Addendum or in the Assignment and
Assumption pursuant to which such Lender shall have become a party hereto;
and
(d) if to the Swingline Lender, to it at:
UBS Loan Finance LLC
677 Washington Boulevard
Stamford, Connecticut 06901
Attention: Vladimira Holeckova
Telecopy No.: (203) 719-4176.
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All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or by certified or registered mail, in each case delivered, sent or
mailed (properly addressed) to such party as provided in this Section 11.01 or
in accordance with the latest unrevoked direction from such party given in
accordance with this Section 11.01, and failure to deliver courtesy copies of
notices and other communications shall in no event affect the validity or
effectiveness of such notices and other communications.
SECTION 11.02 WAIVERS; AMENDMENT.
(a) No failure or delay by any Agent, the Issuing Bank or any Lender
in exercising any right or power hereunder or under any other Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of each Agent,
the Issuing Bank and the Lenders hereunder and under the other Loan Documents
are cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of any Loan Document or consent to
any departure by any Loan Party therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section, and then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given. Without limiting the generality of the foregoing, the
making of a Loan or issuance of a Letter of Credit shall not be construed as a
waiver of any Default, regardless of whether any Agent, any Lender or the
Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as provided in paragraph (d) below, neither this
Agreement nor any other Loan Document nor any provision hereof or thereof may be
waived, amended, supplemented or modified except, in the case of this Agreement,
pursuant to an agreement or agreements in writing entered into by the Borrowers
and the Required Lenders or, in the case of any other Loan Document, pursuant to
an agreement or agreements in writing entered into by the Administrative Agent,
the Collateral Agent (in the case of any Security Document) and the Loan Party
or Loan Parties that are parties thereto, in each case with the written consent
of the Required Lenders; provided that no such agreement shall:
(i) increase the Commitment of any Lender without the written
consent of such Lender;
(ii) reduce the principal amount or premium of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any Fees
payable hereunder, or change the currency of payment of any Obligation,
without the written consent of each Lender affected thereby;
(iii) postpone or extend the maturity of any Loan, or any scheduled
date of payment of or the installment otherwise due on the principal
amount of any Term Loan under Section 2.09, or the required date of
payment of any Reimbursement Obligation, or any date for the payment of
any interest or fees payable hereunder, or reduce the amount of, waive or
excuse any such payment (except interest payable under Section 2.06(c)),
or postpone the scheduled date of expiration of any Commitment or postpone
the scheduled date of expiration of any Letter of Credit beyond the
Revolving Maturity Date, without the written consent of each Lender
affected thereby;
(iv) change Section 2.14(b) or (c) in a manner that would alter the
pro rata sharing of payments or setoffs required thereby, without the
written consent of each Lender;
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(v) change the percentage set forth in the definition of "Required
Lenders" or any other provision of any Loan Document (including this
Section) specifying the number or percentage of Lenders (or Lenders of any
Class) required to waive, amend or modify any rights thereunder or make
any determination or grant any consent thereunder, without the written
consent of each Lender (or each Lender of such Class, as the case may be);
(vi) release any Guarantor from its Guarantee (except as expressly
provided in Article VII), or limit its liability in respect of such
Guarantee, without the written consent of each Lender;
(vii) release all or a substantial portion of the Collateral from
the Liens of the Security Documents or alter the relative priorities of
the Obligations entitled to the Liens of the Security Documents (except in
connection with securing additional Obligations equally and ratably with
the other Obligations), in each case without the written consent of each
Lender;
(viii) change any provisions of any Loan Document in a manner that
by its terms adversely affects the rights in respect of payments due to
Lenders holding Loans of any Class differently than those holding Loans of
any other Class, without the written consent of Lenders holding a majority
in interest of the outstanding Loans and unused Commitments of each
affected Class;
(ix) without the consent of the Required Lenders and Term Loan
Lenders holding more than 50% of the principal amount of the outstanding
Term Loans, reduce the amount of, or extend the date of, any scheduled
payment on the Term Loans required to be made under Section 2.09, change
the order of application of prepayments among Term Loans and Revolving
Commitments under Section 2.10(h) or change the application of prepayments
of Term Loans set forth in Section 2.10(h) to the remaining scheduled
amortization payments to be made thereon under Section 2.09; or
(x) without the consent of Term Loan Lenders holding more than 50%
of the principal amount of each of the outstanding U.S. Term Loans and
Canadian Term Loans, change the order of application of prepayments
amounts of the U.S. Term Loans and the Canadian Term Loans under Section
2.10(h);
provided, further, that (1) no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, the Collateral Agent,
the Issuing Bank or the Swingline Lender without the prior written consent of
the Administrative Agent, the Issuing Bank or the Swingline Lender, as the case
may be, (2) any waiver, amendment or modification of this Agreement that by its
terms affects the rights or duties under this Agreement of the Revolving Lenders
(but not the Term Loan Lenders), the Term Loan Lenders (but not the Revolving
Lenders), or one Class of Term Loan Lenders (but no other Lenders) may be
effected by an agreement or agreements in writing entered into by the Borrowers
and requisite percentage in interest of the affected Class of Lenders that would
be required to consent thereto under this Section if such Class of Lenders were
the only Class of Lenders hereunder at the time, and (3) any waiver, amendment
or modification prior to the completion of the primary syndication of the
Commitments and Loans (as determined by the Administrative Agent) may not be
effected without the written consent of the Administrative Agent.
Notwithstanding the foregoing, any provision of this Agreement may be amended by
an agreement in writing entered into by the Borrowers, the Required Lenders and
the Administrative Agent (and, if their rights or obligations are affected
thereby, the Issuing Bank and the Swingline Lender) if (x) by the terms of such
agreement the Commitment of each Lender not consenting to the amendment provided
for therein shall terminate upon the effectiveness of such amendment and (y) at
the time such amendment becomes effective, each Lender not consenting thereto
receives payment
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in full of the principal of, premium, if any, and interest accrued on each Loan
made by it and all other amounts owing to it or accrued for its account under
this Agreement.
(c) If, in connection with any proposed change, waiver, discharge or
termination of the provisions of this Agreement as contemplated by Section
11.02(b), the consent of the Required Lenders is obtained but the consent of one
or more of such other Lenders whose consent is required is not obtained, then
the Borrowers shall have the right to replace all, but not less than all, of
such non-consenting Lender or Lenders (so long as all non-consenting Lenders are
so replaced) with one or more persons pursuant to Section 2.16 so long as at the
time of such replacement each such new Lender consents to the proposed change,
waiver, discharge or termination.
(d) Notwithstanding anything in Section 11.02(b) to the contrary,
this Agreement and the other Loan Documents may be amended at any time and from
time to time to increase the aggregate principal amount of U.S. Term Loans or to
establish additional Classes of U.S. Term Loans (collectively, "ADDITIONAL TERM
LOANS") by an agreement in writing entered into by the Borrowers, the
Administrative Agent, the Collateral Agent and each person (including any
Lender) that shall agree to make an Additional Term Loan (and each such person
that shall not already be a Lender shall be reasonably acceptable to the
Administrative Agent and shall, at the time such agreement becomes effective,
become a Lender with the same effect as if it had originally been a Lender under
this Agreement with the Term Loans set forth in such agreement); provided that
(1) no more than an amount equal to $100.0 million of Additional Term Loans less
the principal amount of all Senior Subordinated Notes (other than the New Senior
Subordinated Notes) issued after the Original Closing Date pursuant to Section
6.01(b) may be established pursuant to this Section 11.02(d) without the consent
of the Required Lenders, (2) no Default or Event of Default has occurred and is
continuing or would occur after giving effect thereto, (3) the covenants in
Section 6.10 would be satisfied on a Pro Forma Basis on the date of any such
amendment and for the most recent Test Period, after giving effect to such
Additional Term Loans, and (4) the Senior Leverage Ratio would not be greater
than 2.5:1.0 after giving effect thereto. Any such agreement shall be reasonably
satisfactory to the Administrative Agent, shall amend the provisions of this
Agreement and the other Loan Documents and shall set forth the terms of the
Additional Term Loans established thereby (including the amount and final
maturity thereof (which shall not be earlier than the Term Loan Maturity Date),
any provisions relating to the amortization or mandatory prepayment thereof
(which shall be no more than ratable or pari passu, as applicable, with the Term
Loans), the interest to accrue and be payable thereon and any fees to be payable
in respect thereof (provided that the Applicable Margins with respect to any
Additional Term Loans shall not be more than 25 basis points higher than the
Applicable Margins with respect to the Term Loans and that all other payment
rights shall be pari passu with the Term Loans)) and effect such other changes
(including changes to the provisions of this Section, Section 2.14 and the
definition of "Required Lenders") as U.S. Borrower and the Administrative Agent
shall deem necessary or advisable in connection with the Additional Term Loans;
provided that no such agreement shall (i) effect any change described in Section
11.02(b)(i) through (ix) without the consent of each person required to consent
to such change under such clause (it being agreed, however, that the Additional
Term Loans will not, of themselves, be deemed to effect any of the changes
described in Section 11.02(b)(vi) through (viii) and (1)), (ii) amend Article V,
VI or VIII to establish any affirmative or negative covenant, Event of Default
or remedy that by its terms benefits one or more Classes, but not all Classes,
of Loans or Borrowings without the prior written consent of Lenders holding a
majority in interest of the Loans and Commitments of each Class not so benefited
(it being agreed that no provision requiring either Borrower to prepay Term
Loans of one or more Classes pursuant to Sections 2.10(c) through (h) shall be
deemed to violate this clause) or (iii) change any other provision of this
Agreement or any other Loan Document that creates rights in favor of Lenders
holding Loans or Commitments of any existing Class, other than as necessary or
advisable in the judgment of the Administrative Agent to cause such provision to
take into account, or to make the benefits of such provision available to,
Lenders holding Additional Term Loans. The Loans and Borrowings established
pursuant to this paragraph shall con-
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stitute Loans and Borrowings under, and shall be entitled to all the benefits
afforded by, this Agreement and the other Loan Documents, and shall, without
limiting the foregoing, benefit equally and ratably from the Guarantees and
security interests created by the Security Documents. The Loan Parties shall
take any actions reasonably required by the Administrative Agent to ensure
and/or demonstrate that the Lien and security interests granted by the Security
Documents continue to be perfected under the UCC or otherwise after the
establishment of any such Additional Term Loans.
(e) Notwithstanding anything in this Agreement to the contrary, any
Offer to Redeem shall be accepted by all Lenders to which such Offer to Redeem
was made unless three Business Days prior to the proposed redemption date the
Required Lenders give their consent for such Offer to Redeem to be declined by
all such Lenders.
(f) Notwithstanding anything in Section 11.02(b) to the contrary,
this Agreement and the other Loan Documents may be amended at any time and from
time to time to increase the aggregate principal amount of the Revolving
Commitment by up to $10.0 million in the aggregate (the "INCREMENTAL REVOLVING
COMMITMENT") in excess of the Revolving Commitment on the Second Amendment
Effectiveness Date by an agreement in writing entered into by the Borrowers, the
Administrative Agent, the Collateral Agent and each person (including any
Lender) that shall agree to commit to a portion of the Incremental Revolving
Commitment (and each such person that shall not already be a Lender shall be
reasonably acceptable to the Administrative Agent and shall, at the time such
agreement becomes effective, become a Lender with the same effect as if it had
originally been a Lender under this Agreement with the Revolving Commitment set
forth in such agreement); provided that (1) no Default or Event of Default has
occurred and is continuing or would occur after giving effect thereto and (2)
the covenants in Section 6.10 would be satisfied on a Pro Forma Basis on the
date of any such amendment and for the most recent Test Period, after giving
effect to any Revolving Loans made on such date pursuant to the Incremental
Revolving Commitment. Any such agreement shall be reasonably satisfactory to the
Administrative Agent, shall amend the provisions of this Agreement and the other
Loan Documents and shall set forth the terms of the Revolving Loans to be made
pursuant to the Incremental Revolving Commitment established thereby (which
shall be the same as those of the Revolving Loans under this Agreement) and
effect such other changes (including changes to the provisions of this Section,
Section 2.14 and the definition of "Required Lenders") as U.S. Borrower and the
Administrative Agent shall deem necessary or advisable in connection with the
Incremental Revolving Commitment; provided that no such agreement shall (i)
effect any change described in Section 11.02(b)(i) through (ix) without the
consent of each person required to consent to such change under such clause (it
being agreed, however, that the Incremental Revolving Commitment and any
Revolving Loans made pursuant thereto will not, of themselves, be deemed to
effect any of the changes described in Section 11.02(b)(vi) through (viii) and
(1)), (ii) amend Article V, VI or VIII to establish any affirmative or negative
covenant, Event of Default or remedy that by its terms benefits one or more
Classes, but not all Classes, of Loans or Borrowings without the prior written
consent of Lenders holding a majority in interest of the Loans and Commitments
of each Class not so benefited or (iii) change any other provision of this
Agreement or any other Loan Document that creates rights in favor of Lenders
holding Loans or Commitments of any existing Class, other than as necessary or
advisable in the judgment of the Administrative Agent to cause such provision to
take into account, or to make the benefits of such provision available to,
Lenders holding a portion of the Incremental Revolving Commitment. The Loans and
Borrowings established pursuant to the Incremental Revolving Commitment shall
constitute Loans and Borrowings under, and shall be entitled to all the benefits
afforded by, this Agreement and the other Loan Documents, and shall, without
limiting the foregoing, benefit equally and ratably from the Guarantees and
security interests created by the Security Documents. The Loan Parties shall
take any actions reasonably required by the Administrative Agent to ensure
and/or demonstrate that the Lien and security interests granted by the Security
Documents continue to be perfected under the UCC or otherwise after the
establishment of such Incremental Revolving Commitment.
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SECTION 11.03 EXPENSES; INDEMNITY.
(a) The Loan Parties agree, jointly and severally, to pay, promptly
upon demand:
(i) all reasonable costs and expenses incurred by the Arrangers, the
Administrative Agent, the Collateral Agent, the Swingline Lender and the
Issuing Bank, including the reasonable fees, charges and disbursements of
Advisors for the Arrangers, the Administrative Agent, the Collateral
Agent, the Swingline Lender and the Issuing Bank, in connection with the
syndication of the Loans and Commitments, the preparation, execution and
delivery of the Loan Documents, the administration of the Loans and
Commitments, the perfection and maintenance of the Liens securing the
Collateral and any actual or proposed amendment, supplement or waiver of
any of the Loan Documents (whether or not the transactions contemplated
hereby or thereby shall be consummated);
(ii) all costs and expenses incurred by the Administrative Agent or
the Collateral Agent, including the reasonable fees, charges and
disbursements of Advisors for the Administrative Agent and the Collateral
Agent, in connection with any action, suit or other proceeding affecting
the Collateral or any part thereof, in which action, suit or proceeding
the Administrative Agent or the Collateral Agent is made a party or
participates or in which the right to use the Collateral or any part
thereof is threatened, or in which it becomes necessary in the judgment of
the Administrative Agent or the Collateral Agent to defend or uphold the
Liens granted by the Security Documents (including any action, suit or
proceeding to establish or uphold the compliance of the Collateral with
any Requirements of Law);
(iii) all costs and expenses incurred by the Arrangers, the
Administrative Agent, the Collateral Agent, the Swingline Lender, the
Issuing Bank or any Lender, including the reasonable fees, charges and
disbursements of Advisors for the Arrangers, the Administrative Agent, the
Collateral Agent, the Swingline Lender, the Issuing Bank or any Lender,
incurred in connection with the enforcement or protection of its rights
under the Loan Documents, including its rights under this Section
11.03(a), or in connection with the Loans made or Letters of Credit issued
hereunder and the collection of the Obligations, including all such costs
and expenses incurred during any workout, restructuring or negotiations in
respect of the Obligations; and
(iv) all documentary and similar taxes and charges in respect of the
Loan Documents.
For purposes of this Section 11.03(a), "ADVISORS" shall mean legal counsel
(including local counsel), auditors, accountants, consultants, appraisers or
other advisors; provided that (x) in the case of clause (i), the engagement of
any Advisors other than legal counsel (including local counsel) shall be subject
to approval by U.S. Borrower (which approval shall not be unreasonably withheld)
and (y) in the case of clause (iii), the engagement of any Advisors other than
one firm of legal counsel by any Lender shall be subject to approval by the
Administrative Agent.
(b) The Loan Parties agree, jointly and severally, to indemnify the
Agents, each Lender, the Issuing Bank and the Swingline Lender, each Affiliate
of any of the foregoing persons and each of their respective partners,
controlling persons, directors, officers, trustees, employees and agents (each
such person being called an "INDEMNITEE") against, and to hold each Indemnitee
harmless from, all reasonable out-of-pocket costs and any and all losses,
claims, damages, liabilities, penalties, judgments, suits and related expenses,
including reasonable counsel fees, charges and disbursements, incurred by or
asserted against any Indemnitee arising out of, in any way connected with, or as
a result of (i) the execution, delivery, performance, administration or
enforcement of the Loan Documents, (ii) any actual or proposed use of the
proceeds of the Loans or issuance of Letters of Credit, (iii) any claim,
litigation, investi-
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gation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto, or (iv) any actual or alleged presence or Release
or threatened Release of Hazardous Materials, on, at, under or from any property
owned, leased or operated by any Company at any time, or any Environmental Claim
related in any way to any Company; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted solely from
the gross negligence or willful misconduct of such Indemnitee.
(c) The provisions of this Section 11.03 shall remain operative and
in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of the Loans and Reimbursement Obligations, the release of all or any
portion of the Collateral, the expiration of the Commitments, the expiration of
any Letter of Credit, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Agents, the Issuing Bank or any Lender. All amounts
due under this Section 11.03 shall be payable on written demand therefor
accompanied by reasonable documentation with respect to any reimbursement,
indemnification or other amount requested.
(d) To the extent that either Borrower fails to promptly pay any
amount required to be paid by it to the Agents, the Issuing Bank or the
Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Agents, the Issuing Bank or the Swingline Lender,
as the case may be, such Lender's pro rata share (determined as of the time that
the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against any of the Agents, the Issuing Bank or the Swingline Lender
in its capacity as such. For purposes hereof, a Lender's "pro rata share" shall
be determined based upon its share of the sum of the total Revolving Exposure,
outstanding Term Loans and unused Commitments at the time.
SECTION 11.04 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit), except that the Borrowers may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of the Administrative Agent, the Collateral Agent, the Issuing Lender,
the Swingline Lender and each Lender (and any attempted assignment or transfer
by either Borrower without such consent shall be null and void). Nothing in this
Agreement, express or implied, shall be construed to confer upon any person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit) and, to the extent expressly contemplated hereby, the other
Indemnitees) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender shall have the right at any time to assign to one or
more banks, insurance companies, investment companies or funds or other
institutions (other than the Borrowers, Parent or any Subsidiary thereof) all or
a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that
(i) except in the case of an assignment to a Lender, an Affiliate of a Lender or
a Lender Affiliate, the Administrative Agent and U.S. Borrower (and, in the case
of an assignment of all or a portion of a Revolving Commitment or any Lender's
obligations in respect of its LC Exposure or Swingline Exposure, the Issuing
Bank and the Swingline Lender) must give its prior written consent to such
assignment (which consents shall not be unreasonably withheld or delayed), (ii)
except in the case of an assignment to a Lender, an Affiliate of a Lender or a
Lender Affiliate, any assignment made in connection with the syndication of the
Commitments and Loans by the Arrangers or an assignment of the entire remaining
amount of the assigning
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Lender's Commitment or Loans, the amount of the Commitment or Loans of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than (x) with respect to Term Loan
Commitments and Term Loans, $1.0 million and (y) with respect to Revolving
Commitments and Revolving Loans, $2.5 million, unless each of U.S. Borrower and
the Administrative Agent otherwise consents, (iii) each partial assignment shall
be made as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement, except that this clause (iii) shall
not be construed to prohibit the assignment of a proportionate part of all the
assigning Lender's rights and obligations in respect of one Class of Commitments
or Loans other than an assignment of any rights and obligations with respect to
any Term Loans which may be assigned only on a pro rata basis between (x)
Existing U.S. Term Loans and (y) Canadian Term Loans (i.e., an assignment of
Existing U.S. Term Loans representing a percentage of the total principal amount
of Existing U.S. Term Loans then outstanding shall be accompanied by an
assignment of Canadian Term Loans representing the same percentage of the total
principal amount of Canadian Term Loans then outstanding), (iv) the parties to
each assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption, together with a processing and recordation fee of
$3,500, (v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire and (vi) in the case of an
assignment to an Affiliate of Parent, such Affiliate hereby agrees that, unless
it holds all Loans of the applicable Class, its Loans and Commitments shall be
disregarded for purposes of determining the requisite percentage or number of
Lenders (or Lenders of any Class) required to waive, amend or modify any rights
under any Loan Document or make any determination or grant any consent
thereunder; and provided, further, that any consent of U.S. Borrower otherwise
required under this paragraph shall not be required if a Default has occurred
and is continuing or during the primary syndication of the Commitments. Subject
to acceptance and recording thereof pursuant to paragraph (d) of this Section,
from and after the effective date specified in each Assignment and Assumption
the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement (provided that any liability of
either Borrower to such assignee under Section 2.12 or 2.13 shall be limited to
the amount, if any, that would have been payable thereunder by such Borrower in
the absence of such assignment, except to the extent any such amounts are
attributable to a Change in Law occurring after the date of such assignment),
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.12, 2.13, 2.15 and 11.03).
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrowers, shall maintain at one of its offices a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and principal amount of the
Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof
from time to time (the "REGISTER"). The entries in the Register shall be
conclusive in the absence of manifest error, and the Borrowers, the
Administrative Agent, the Issuing Bank and the Lenders may treat each person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrowers, the
Issuing Bank, the Collateral Agent, the Swingline Lender and any Lender (with
respect to its own interest only), at any reasonable time and from time to time
upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this
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Section, the Administrative Agent shall accept such Assignment and Assumption
and record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.
(e) Any Lender shall have the right at any time, without the consent
of either Borrower, the Administrative Agent, the Issuing Bank or the Swingline
Lender, to sell participations to one or more banks or other entities (a
"PARTICIPANT") in all or a portion of such Lender's rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans owing
to it); provided that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrowers,
the Administrative Agent, the Issuing Bank and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce the Loan Documents and to approve
any amendment, modification or waiver of any provision of the Loan Documents;
provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification or waiver described in clause (i), (ii) or (iii) of the first
proviso to Section 11.02(b) that affects such Participant. Subject to paragraph
(f) of this Section, the Borrowers agree that each Participant shall be entitled
to the benefits of Sections 2.12, 2.13 and 2.15, so long as such Participant
complies with the requirements of each such Section, to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to paragraph
(b) of this Section. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 11.08 as though it were a Lender;
provided that such Participant agrees in writing to be subject to Section
2.14(c) as though it were a Lender. Each Lender shall, acting for this purpose
as an agent of the Borrowers, maintain at one of its offices a register for the
recordation of the names and addresses of its Participants, and the amount and
terms of its participations; provided that no Lender shall be required to
disclose or share the information contained in such register with the Borrowers
or any other party, except as required by applicable law.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.12, 2.13 or 2.15 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 the prior written consent of the applicable Borrower (which consent shall
not be unreasonably withheld or delayed).
(g) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto. In
the case of any Lender that is a fund that invests in bank loans, such Lender
may, without the consent of the Borrowers or the Administrative Agent,
collaterally assign or pledge all or any portion of its rights under this
Agreement, including the Loans and Notes or any other instrument evidencing its
rights as a Lender under this Agreement, to any holder of, trustee for, or any
other representative of holders of, obligations owed or securities issued, by
such fund, as security for such obligations or securities.
SECTION 11.05 SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by the Loan Parties in the Loan Documents
and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the other parties hereto and shall survive the
execution and delivery of the Loan Documents and the making of any Loans and
issuance of any Letters of Credit, regard-
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less of any investigation made by any such other party or on its behalf and
notwithstanding that the Agents, the Issuing Bank or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
fee or any other amount payable under this Agreement is outstanding and unpaid
or any Letter of Credit is outstanding and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.12, 2.14, 2.15 and 11.03 and
Article X shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the payment of the Reimbursement Obligations, the expiration or
termination of the Letters of Credit and the Commitments or the termination of
this Agreement or any provision hereof.
SECTION 11.06 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and the Fee Letter constitute the entire contract among
the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject
matter hereof. This Agreement shall become effective when the conditions
precedent set forth in Section 4.03 have been met and when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. The Borrowers, the Guarantors, the Agents and the
Lenders agree that (a) all obligations under the Original Credit Agreement, that
is amended and restated hereby, shall continue to exist under and be evidenced
by this Agreement and the other Loan Documents and shall constitute Obligations
and (b) except as expressly stated herein or amended, the other Loan Documents
are ratified and confirmed as remaining unmodified and in full force and effect
with respect to all Obligations. The Borrower, the Guarantors, the Agent and the
Lenders agree that notwithstanding the foregoing or anything else herein to the
contrary the provisions of Article X and Section 11.03 of the Original Credit
Agreement survive and remain in full force and effect for the benefit of the
Original Agents. Delivery of an executed counterpart of a signature page of this
Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 11.07 SEVERABILITY. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 11.08 RIGHT OF SETOFF. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates are hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of either
Borrower against any and all of the obligations of such Borrower now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
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SECTION 11.09 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE
OF PROCESS.
(a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York, without regard to conflicts of law
principles that would require the application of the laws of another
jurisdiction.
(b) Each Loan Party hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to any Loan Document, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that
the Administrative Agent, the Issuing Bank or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or any other Loan
Document against any Loan Party or its properties in the courts of any
jurisdiction.
(c) Each Loan Party hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to in Section 11.09(b). Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Each party to this Agreement irrevocably consents to
service of process in any action or proceeding arising out of or relating to any
Loan Document, in the manner provided for notices (other than telecopy) in
Section 11.01. Nothing in this Agreement or any other Loan Document will affect
the right of any party to this Agreement to serve process in any other manner
permitted by applicable law.
SECTION 11.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 11.11 HEADINGS. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
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SECTION 11.12 CONFIDENTIALITY. Each of the Agents, the Issuing
Bank and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its and its
Affiliates' and Lender Affiliates' directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential pursuant to the terms hereof), (b) to the extent requested by any
regulatory or self-regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or any other Loan Document or the enforcement of rights hereunder or thereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section 11.12, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement, (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the applicable
Borrower and its obligations or (iii) any rating agency for the purpose of
obtaining a credit rating applicable to any Loan or Loan Party, (g) with the
consent of U.S. Borrower or (h) to the extent such Information (i) is publicly
available at the time of disclosure or becomes publicly available other than as
a result of a breach of this Section or (ii) becomes available to any Agent, the
Issuing Bank or any Lender on a nonconfidential basis from a source other than
U.S. Borrower or any Subsidiary. For the purposes of this Section, "INFORMATION"
means all information received from U.S. Borrower or any Subsidiary relating to
U.S. Borrower or any Subsidiary or its business that is clearly identified at
the time of delivery as confidential, other than any such information that is
available to any Agent, the Issuing Bank or any Lender on a nonconfidential
basis prior to disclosure by U.S. Borrower or any Subsidiary. Any person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such person has exercised the same degree of care to maintain the
confidentiality of such Information as such person would accord to its own
confidential information.
SECTION 11.13 INTEREST RATE LIMITATION. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively, the "CHARGES"), shall
exceed the maximum lawful rate (the "MAXIMUM RATE") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date
of repayment, shall have been received by such Lender.
SECTION 11.14 LENDER ADDENDUM. Each Lender to become a party
to this Agreement on the Original Closing Date, the First Amendment
Effectiveness Date or the Second Amendment Effectiveness Date shall do so by
delivering to the Administrative Agent a Lender Addendum duly executed by such
Lender, the applicable Borrower and the Administrative Agent.
SECTION 11.15 OBLIGATIONS ABSOLUTE. To the fullest extent
permitted by applicable law, all obligations of the Loan Parties hereunder shall
be absolute and unconditional irrespective of:
(a) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of any Loan
Party;
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(b) any lack of validity or enforceability of any Loan
Document or any other agreement or instrument relating thereto
against any Loan Party;
(c) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to any departure from any Loan
Document or any other agreement or instrument relating thereto;
(d) any exchange, release or non-perfection of any other
Collateral, or any release or amendment or waiver of or consent to
any departure from any guarantee, for all or any of the Obligations;
(e) any exercise or non-exercise, or any waiver of any right,
remedy, power or privilege under or in respect hereof or any Loan
Document; or
(f) any other circumstances which might otherwise constitute a
defense available to, or a discharge of, the Loan Parties, except
for the defense of payment or performance of such obligations.
SECTION 11.16 JUDGMENT CURRENCY.
(a) Each Borrower's obligation hereunder and under the other
Loan Documents to make payments in dollars shall not be discharged or satisfied
by any tender or recovery pursuant to any judgment expressed in or converted
into any currency other than dollars, except to the extent that such tender or
recovery results in the effective receipt by the Administrative Agent or the
respective Lender of the full amount of dollars expressed to be payable to the
Administrative Agent or such Lender under this Agreement or the other Loan
Documents. If, for the purpose of obtaining or enforcing judgment against a
Borrower in any court or in any jurisdiction, it becomes necessary to convert
into or from any currency other than dollars (such other currency being
hereinafter referred to as the "JUDGMENT CURRENCY") an amount due in dollars,
the conversion shall be made at the rate of exchange (as quoted by the
Administrative Agent or if the Administrative Agent does not quote a rate of
exchange on such currency, by a known dealer in such currency designated by the
Administrative Agent) determined, in each case, as of the Business Day
immediately preceding the day on which the judgment is given (such Business Day
being hereinafter referred to as the "JUDGMENT CURRENCY CONVERSION DATE").
(b) If there is a change in the rate of exchange prevailing
between the Judgment Currency Conversion Date and the date of actual payment of
the amount due, each Borrower covenants and agrees to pay, or cause to be paid,
such additional amounts, if any (but in any event not a lesser amount) as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of dollars which could have been purchased with the amount of
Judgment Currency stipulated in the judgment or judicial award at the rate of
exchange prevailing on the Judgment Currency Conversion Date.
(c) For purposes of determining any rate of exchange for this
Section 11.16, such amounts shall include any premium and costs payable in
connection with the purchase of dollars.
[Signature Pages Follow]
-134-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
PLY GEM INDUSTRIES, INC.
By:______________________________________
Name:
Title:
CWD WINDOWS AND DOORS, INC.
By:______________________________________
Name:
Title:
PLY GEM HOLDINGS, INC.
By:______________________________________
Name:
Title:
GREAT LAKES WINDOW, INC.
KROY BUILDING PRODUCTS, INC.
NAPCO, INC.
NAPCO WINDOW SYSTEMS, INC.
THERMAL-GARD, INC.
VARIFORM, INC.
By:______________________________________
Name:
Title:
S-1
MWM HOLDING, INC.
MW MANUFACTURERS HOLDING CORP.
MW MANUFACTURERS INC.
LINEAL TECHNOLOGIES, INC.
PATRIOT MANUFACTURING, INC.
By:______________________________________
Name:
Title:
UBS SECURITIES LLC, as a Joint Lead Arranger
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
DEUTSCHE BANK SECURITIES INC.,
as a Joint Lead Arranger
By:______________________________________
Name:
Title:
J.P.MORGAN SECURITIES INC.,
as Co-Arranger
By:______________________________________
Name:
Title:
S-2
UBS AG, STAMFORD BRANCH, as Issuing Bank,
Administrative Agent and Collateral Agent
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
DEUTSCHE BANK AG CAYMAN ISLANDS
BRANCH, as Syndication Agent
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
JPMORGAN CHASE BANK,
as Documentation Agent
By:______________________________________
Name:
Title:
S-3
UBS LOAN FINANCE LLC, as Swingline Lender
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
S-4
ANNEX I
APPLICABLE MARGIN
REVOLVING LOANS
TOTAL --------------------- APPLICABLE
LEVERAGE RATIO EURODOLLAR ABR FEE
- ------------------ ----------- ----- ----------
LEVEL I 2.50% 1.50% 0.50%
> or = 4.50:1.0
LEVEL II 2.25% 1.25% 0.50%
<4.50:1.0 BUT
> or = 3.75:1.0
LEVEL III 2.00% 1.00% 0.375%
<3.75:1.0 BUT
> or = 3.00:1.0
LEVEL IV 1.75% 0.75% 0.375%
<3.00:1.0
Each change in the Applicable Margin or Applicable Fee
resulting from a change in the Total Leverage Ratio shall be effective with
respect to all Loans and Letters of Credit outstanding on and after the date of
delivery to the Administrative Agent of the financial statements and
certificates required by Section 5.01(a) or (b) and Section 5.01(c),
respectively, indicating such change until the date immediately preceding the
next date of delivery of such financial statements and certificates indicating
another such change. Notwithstanding the foregoing, the Leverage Ratio shall be
deemed to be in Level I (i) from the Original Closing Date to the date of
delivery to the Administrative Agent of the financial statements and
certificates required by Section 5.01(a) or (b) and Section 5.01(c) for the
fiscal period ended at least six months after the Original Closing Date, (ii) at
any time during which U.S. Borrower has failed to deliver the financial
statements and certificates required by Section 5.01(a) or (b) and Section
5.01(c), respectively, and (iii) at any time during the existence of an Event of
Default.
ANNEX II
AMORTIZATION TABLE
EXISTING U.S. TERM LOAN CANADIAN TERM LOAN ADDITIONAL U.S.
DATE AMOUNT AMOUNT TERM LOAN AMOUNT
- ------------------ ----------------------- ------------------ ------------------
June 30, 2004 $ 425,000 $ 75,000 -
September 30, 2004 $ 425,000 $ 75,000 -
December 31, 2004 $ 425,000 $ 75,000 -
March 31, 2005 $ 425,000 $ 75,000 -
June 30, 2005 $ 425,000 $ 75,000 -
September 30, 2005 $ 425,000 $ 75,000 -
December 31, 2005 $ 425,000 $ 75,000 -
March 31, 2006 $ 425,000 $ 75,000 -
June 30, 2006 $ 425,000 $ 75,000 -
September 30, 2006 $ 425,000 $ 75,000 -
December 31, 2006 $ 425,000 $ 75,000 -
March 31, 2007 $ 425,000 $ 75,000 -
June 30, 2007 $ 425,000 $ 75,000 -
September 30, 2007 $ 425,000 $ 75,000 -
December 31, 2007 $ 425,000 $ 75,000 -
March 31, 2008 $ 425,000 $ 75,000 -
June 30, 2008 $ 425,000 $ 75,000 -
September 30, 2008 $ 425,000 $ 75,000 -
December 31, 2008 $ 425,000 $ 75,000 -
March 31, 2009 $ 425,000 $ 75,000 -
June 30, 2009 $ 425,000 $ 75,000 -
September 30, 2009 $ 425,000 $ 75,000 -
December 31, 2009 $ 425,000 $ 75,000 -
March 31, 2010 $ 425,000 $ 75,000 -
June 30, 2010 $ 39,950,000 $ 7,050,000 -
September 30, 2010 $ 39,950,000 $ 7,050,000 -
December 31, 2010 $ 39,950,000 $ 7,050,000 -
February 12, 2011 $ 39,950,000 $ 7,050,000 $ 111,000,000
Total $ 170,000,000 $ 30,000,000 $ 111,000,000
SCHEDULE 1.01(b)
CONSOLIDATED EBITDA ADDBACKS (IN $ MILLIONS)
Q3 2003 Q4 2003 Q1 2004 Q2 2004
PLY GEM ADJUSTMENTS
Non-cash write-off of Inventory - - 1,934 40
Elimination of Nortek's corporate charge 3,732 1,680 490 -
Thermal Gard Window and Other 77 284 372 (362)
Butler Closure One-time costs 149 85 93 53
One-time GLW Mgmt. Changes 164 66 - -
Metal Price Increase - - 570 404
Kroy Reorganization - - 93 442
Kroy Balance Sheet Adj. 467 1,029 631 294
Kroy Product Relaunch - - 480 100
---------- ------- ------ ------
TOTAL PLY GEM ADJUSTMENTS 4,589 3,144 4,663 971
========== ======= ====== ======
MW ADJUSTMENTS
Extrusion and automation savings 2,286 686 686 343
Non-recurring stand-alone costs 90 76 15 75
Non-recurring consulting and relocation costs 446 58 - 191
Pension savings 63 63 63 63
---------- ------- ------ ------
TOTAL MW ADJUSTMENTS 2,885 883 764 672
========== ======= ====== ======
COST SAVINGS AND SYNERGIES
Labor productivity 434 434 434 434
Patio door and casement redesign 193 193 193 193
Vinyl and glass scrap program 138 138 138 138
Freight software optimization 63 63 63 63
Regrinding optimization 50 50 50 50
Twin screw savings 31 31 31 31
Automate SDL 25 25 25 25
GEMROI commission 50 50 50 50
Compounding savings 550 550 550 550
Insurance program savings 165 165 165 165
---------- ------ ------ ------
TOTAL COST SAVINGS AND SYNERGIES 1,699 1,699 1,699 1,699
========== ====== ====== ======