EXECUTION COPY
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$830 MILLION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(amending and restating the Credit Agreement dated as of September 30, 1999,
as amended and restated on December 12, 2003, as further amended)
among
TENNECO INC.,
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
CITICORP NORTH AMERICA, INC.,
BANK OF AMERICA, N.A.,
and
THE ROYAL BANK OF SCOTLAND PLC,
as Documentation Agents,
DEUTSCHE BANK SECURITIES INC.,
as Syndication Agent,
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
Dated as of March 16, 2007
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J.P. MORGAN SECURITIES INC. and DEUTSCHE BANK SECURITIES INC., as Co-Lead
Arrangers and Joint Bookrunning Managers
TABLE OF CONTENTS
PAGE
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SECTION 1. DEFINITIONS................................................... 1
1.1 Defined Terms.................................................. 1
1.2 Other Definitional Provisions.................................. 29
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS............................... 30
2.1 Tranche A Term Commitments..................................... 30
2.2 Procedure for Tranche A Term Loan Borrowing.................... 30
2.3 Repayment of Tranche A Term Loans.............................. 30
2.4 Tranche B-1 Credit Linked Accounts............................. 31
2.5 Making of Tranche B-1 Loans.................................... 35
2.6 Revolving Commitments.......................................... 36
2.7 Procedure for Revolving Loan Borrowing and Tranche B-1 Loan
Borrowing................................................... 37
2.8 Swingline Commitment........................................... 38
2.9 Procedure for Swingline Borrowing; Refunding of Swingline
Loans....................................................... 38
2.10 Commitment Fees, etc........................................... 39
2.11 Termination or Reduction of Revolving Commitments and Total
Tranche B-1 Credit Linked Deposit Amount.................... 40
2.12 Optional Prepayments........................................... 40
2.13 Mandatory Prepayments and Total Tranche B-1 Credit Linked
Deposit Amount Reductions................................... 40
2.14 Conversion and Continuation Options............................ 42
2.15 Limitations on Eurodollar Tranches............................. 43
2.16 Interest Rates and Payment Dates............................... 43
2.17 Computation of Interest and Fees............................... 44
2.18 Inability to Determine Interest Rate........................... 44
2.19 Pro Rata Treatment and Payments................................ 45
2.20 Requirements of Law............................................ 46
2.21 Taxes.......................................................... 47
2.22 Indemnity...................................................... 49
2.23 Change of Lending Office....................................... 49
2.24 Replacement of Lenders......................................... 50
2.25 Intercreditor Agreement........................................ 50
2.26 Redesignation of Existing Loans and Commitments................ 50
2.27 Incremental Loan Extensions.................................... 51
SECTION 3. LETTERS OF CREDIT............................................. 52
3.1 L/C Commitments................................................ 52
3.2 Procedure for Issuance of Letter of Credit..................... 53
3.3 Fees and Other Charges......................................... 53
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3.4 L/C Participations............................................. 53
3.5 Reimbursement Obligation of the Borrower....................... 55
3.6 Obligations Absolute........................................... 55
3.7 Letter of Credit Payments...................................... 56
3.8 Applications................................................... 56
SECTION 4. REPRESENTATIONS AND WARRANTIES................................ 56
4.1 Financial Condition............................................ 56
4.2 No Change...................................................... 56
4.3 Existence; Compliance with Law................................. 57
4.4 Power; Authorization; Enforceable Obligations.................. 57
4.5 No Legal Bar................................................... 57
4.6 Litigation..................................................... 57
4.7 No Default..................................................... 58
4.8 Ownership of Property; Liens................................... 58
4.9 Intellectual Property.......................................... 58
4.10 Taxes.......................................................... 58
4.11 Federal Regulations............................................ 58
4.12 Labor Matters.................................................. 58
4.13 ERISA.......................................................... 59
4.14 Investment Company Act; Other Regulations...................... 59
4.15 Subsidiaries................................................... 59
4.16 Use of Proceeds................................................ 59
4.17 Environmental Matters.......................................... 59
4.18 Accuracy of Information, etc................................... 60
4.19 Security Documents............................................. 61
4.20 Solvency....................................................... 61
4.21 Senior Indebtedness............................................ 61
4.22 First Priority Claims.......................................... 62
SECTION 5. CONDITIONS PRECEDENT.......................................... 62
5.1 Conditions to Amendment and Restatement of Existing Credit
Agreement, Redesignation of Certain Loans and Commitments
and Continuation of Existing Letters of Credit on Closing
Date........................................................ 62
5.2 Conditions to Each Extension of Credit......................... 63
SECTION 6. AFFIRMATIVE COVENANTS......................................... 64
6.1 Financial Statements........................................... 64
6.2 Certificates; Other Information................................ 65
6.3 Payment of Taxes............................................... 66
6.4 Maintenance of Existence; Compliance........................... 66
6.5 Maintenance of Property; Insurance............................. 66
6.6 Inspection of Property; Books and Records; Discussions......... 66
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6.7 Notices........................................................ 66
6.8 Environmental Laws............................................. 67
6.9 Additional Collateral, etc..................................... 67
SECTION 7. NEGATIVE COVENANTS............................................ 70
7.1 Financial Condition Covenants.................................. 70
7.2 Indebtedness................................................... 71
7.3 Liens.......................................................... 72
7.4 Fundamental Changes............................................ 74
7.5 Disposition of Property........................................ 75
7.6 Restricted Payments............................................ 76
7.7 [Intentionally Omitted]........................................ 77
7.8 Investments.................................................... 77
7.9 Optional Payments and Modifications of Senior Subordinated
Notes....................................................... 78
7.10 Transactions with Affiliates................................... 79
7.11 Sales and Leasebacks........................................... 79
7.12 Changes in Fiscal Periods...................................... 80
7.13 Negative Pledge Clauses........................................ 80
7.14 Lines of Business.............................................. 80
7.15 Optional Payments and Modifications of Second Lien Notes....... 80
SECTION 8. EVENTS OF DEFAULT............................................. 81
SECTION 9. THE AGENTS.................................................... 84
9.1 Appointment.................................................... 84
9.2 Delegation of Duties........................................... 85
9.3 Exculpatory Provisions......................................... 85
9.4 Reliance by Administrative Agent............................... 85
9.5 Notice of Default.............................................. 86
9.6 Non-Reliance on Agents and Other Lenders....................... 86
9.7 Indemnification................................................ 86
9.8 Agent in Its Individual Capacity............................... 87
9.9 Successor Administrative Agent................................. 87
9.10 Documentation Agents and Syndication Agent..................... 88
SECTION 10. MISCELLANEOUS................................................ 88
10.1 Amendments and Waivers......................................... 88
10.2 Notices........................................................ 90
10.3 No Waiver; Cumulative Remedies................................. 91
10.4 Survival of Representations and Warranties..................... 91
10.5 Payment of Expenses and Taxes.................................. 91
10.6 Successors and Assigns; Participations and Assignments......... 92
10.7 Adjustments; Set-off........................................... 96
10.8 Counterparts................................................... 97
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10.9 Severability................................................... 97
10.10 Integration.................................................... 97
10.11 GOVERNING LAW.................................................. 97
10.12 Submission To Jurisdiction; Waivers............................ 97
10.13 Acknowledgments................................................ 98
10.14 Releases of Guarantees and Liens............................... 98
10.15 Confidentiality................................................ 99
10.16 WAIVERS OF JURY TRIAL.......................................... 99
10.17 Effect of Amendment and Restatement of the Existing Credit
Agreement................................................... 99
10.18 Covenant of the Tranche B-1 Lenders............................ 100
10.19 Waiver of Covenant Violations Under Existing Credit Agreement.. 100
10.20 USA Patriot Act................................................ 100
SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 16,
2007 (amending and restating the Credit Agreement dated as of September 30,
1999, as amended and restated on December 12, 2003, as further amended), among
TENNECO INC., a Delaware corporation (the "Borrower"), the several banks and
other financial institutions or entities from time to time parties to this
Agreement (the "Lenders"), CITICORP NORTH AMERICA, INC., BANK OF AMERICA, N.A.,
and THE ROYAL BANK OF SCOTLAND PLC, as documentation agents (in such capacity,
the "Documentation Agents"), DEUTSCHE BANK SECURITIES INC., as syndication agent
(in such capacity, the "Syndication Agent"), and JPMORGAN CHASE BANK, N.A., as
administrative agent.
RECITALS
1. The Borrower, the lenders and agents parties thereto and JPMorgan
Chase Bank are parties to the Credit Agreement dated as of September 30, 1999,
as amended and restated as of December 12, 2003, and as further amended on April
30, 2004, November 17, 2004, February 17, 2005 and October 7, 2005 (the
"Existing Credit Agreement").
2. The Borrower desires to amend and restate the Existing Credit
Agreement pursuant to this Agreement. All indebtedness, obligations and
liabilities, as amended and restated hereby, and all Liens existing under the
Existing Credit Agreement and other Loan Documents (as defined in the Existing
Credit Agreement) will continue in full force and effect, uninterrupted and
unimpaired, as amended as set forth herein and in the Loan Documents delivered
or otherwise continued in connection herewith.
3. The Borrower has requested that the Lenders, the Documentation
Agents, the Administrative Agent and the Syndication Agent enter this Agreement
in order to make available to the Borrower the $830,000,000 credit facilities
described herein on the terms and conditions set forth herein, consisting of (a)
a $550,000,000 revolving credit facility, (b) a $150,000,000 tranche A term loan
facility and (c) a $130,000,000 tranche B-1 letter of credit/revolving loan
facility.
The parties hereto hereby agree to amend and restate the Existing
Credit Agreement as follows:
SECTION 1.
DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in this
Section 1.1 shall have the respective meanings set forth in this Section 1.1.
"ABR": for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on
such day, and (b) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1%. For purposes hereof "Prime Rate" shall mean the rate of interest per
annum publicly announced from time to time by JPMCB as its prime rate in effect
at its principal office in New York City (the Prime Rate not being intended to
be the lowest rate of interest charged by JPMCB in connection with extensions of
credit to debtors). Any change in the ABR due to a change in the Prime Rate or
the Federal Funds Effective Rate shall be
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effective as of the opening of business on the effective day of such change in
the Prime Rate, or the Federal Funds Effective Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to which is based
upon the ABR.
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agent": JPMCB, together with its affiliates, as the
arranger of the Commitments and as the administrative agent for the Lenders
under this Agreement and the other Loan Documents, together with any of its
successors.
"Affiliate": as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (a) vote 10% or more of the securities
having ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Agents": the collective reference to the Syndication Agent, the
Documentation Agents and the Administrative Agent.
"Aggregate Exposure": with respect to any Lender at any time, an
amount equal to (a) until the Closing Date, the aggregate amount of such
Lender's Commitments at such time and (b) thereafter, the sum of (i) the
aggregate then unpaid principal amount of such Lender's Term Loans, (ii) the
amount of such Lender's Revolving Commitment then in effect or, if the Revolving
Commitments have been terminated, the amount of such Lender's Revolving
Extensions of Credit then outstanding and (iii) such Lender's Tranche B-1 Credit
Linked Deposit Amount then in effect or, if the Tranche B-1 Settlement Date has
occurred, the amount of such Lender's Tranche B-1 Extensions of Credit then
outstanding.
"Aggregate Exposure Percentage": with respect to any Lender at any
time, the ratio (expressed as a percentage) of such Lender's Aggregate Exposure
at such time to the Aggregate Exposure of all Lenders at such time.
"Agreement": this Second Amended and Restated Credit Agreement, as
amended, supplemented or otherwise modified from time to time.
"Applicable Margin": for each Type of Loan, the rate per annum set
forth under the relevant column heading below:
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ABR Loans Eurodollar Loans
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Revolving Loans and Swingline Loans 0.50% 1.50%
Tranche A Term Loans 0.50% 1.50%
Tranche B-1 Loans 0.50% 1.50%
provided that from and after the first Adjustment Date occurring after the
fiscal quarter in which the Closing Date occurs, the Applicable Margin with
respect to Revolving Loans, Swingline Loans and Tranche A Term Loans will be
determined pursuant to the Pricing Grid.
"Applicable Prepayment Percentage": (a) with respect to any prepayment
of the Term Loans or reduction of the Total Tranche B-1 Credit Linked Deposit
Amount required pursuant to Section 2.13(a) in connection with the issuance or
incurrence of any Indebtedness (i) 100% if the Consolidated Leverage Ratio is
equal to or more than 3.0 to 1.0 as of the last day of the most recently ended
fiscal quarter, (ii) 75% if the Consolidated Leverage Ratio is less than 3.0 to
1.0 as of the last day of the most recently ended fiscal quarter or (iii) 50% if
the Consolidated Leverage Ratio is less than 2.5 to 1.0 as of the last day of
the most recently ended fiscal quarter; (b) with respect to any prepayment of
the Term Loans or reduction of the Total Tranche B-1 Credit Linked Deposit
Amount required pursuant to Section 2.13(b) in connection with any Asset Sale or
Recovery Event (i) if the Borrower's corporate family rating is Baa3 or better
from Moody's or BBB- or better from S&P, 50% or (ii) otherwise, 100%; and (c)
with respect to any prepayment of the Term Loans or reduction of the Total
Tranche B-1 Credit Linked Deposit Amount required pursuant to Section 2.13(c)
for any fiscal year (i) 50% if the Senior Secured Leverage Ratio is greater than
2.5 to 1.0 as of the last day of the most recently ended fiscal quarter or (ii)
0% if the Senior Secured Leverage Ratio is less than or equal to 2.5 to 1.0 as
of the last day of the most recently ended fiscal quarter.
"Application": an application, in such form as the Issuing Lender may
specify from time to time, requesting the Issuing Lender to issue a Letter of
Credit.
"Arrangers": J.P. Morgan Securities Inc. and Deutsche Bank Securities
Inc.
"Asset Sale": any Disposition of property or series of related
Dispositions of property (excluding any such Disposition permitted by clause
(a), (b), (c), (d), (e), (f), (g), (i), (j) or (n) of Section 7.5) that yields
Net Cash Proceeds to the Borrower or any of its Subsidiaries in excess of
$5,000,000.
"Assignee": as defined in Section 10.6(c).
"Assignment and Acceptance": an Assignment and Acceptance,
substantially in the form of Exhibit E.
"Assignor": as defined in Section 10.6(c).
"Available Revolving Commitment": as to any Revolving Lender at any
time, an amount equal to the excess, if any, of (a) such Lender's Revolving
Commitment then in effect over (b) such Lender's Revolving Extensions of Credit
then outstanding; provided, that in calculating any Lender's Revolving
Extensions of Credit for the purpose of determining such Lender's
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Available Revolving Commitment pursuant to Section 2.10(a), the aggregate
principal amount of Swingline Loans then outstanding shall be deemed to be zero.
"Benchmark LIBOR Rate": as defined in Section 2.4(d).
"Benefitted Lender": as defined in Section 10.7(a).
"Board": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by the Borrower as a date
on which the Borrower requests the relevant Lenders to make Loans hereunder.
"Business": as defined in Section 4.17(b).
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
close, provided, that with respect to (a) notices and determinations in
connection with, and payments of principal and interest on, Eurodollar Loans or
Tranche B-1 Loans (except with respect to any Tranche B-1 Loans which are deemed
to be ABR Loans in accordance with Section 2.4(f)) or (b) determination of the
Benchmark LIBOR Rate, such day is also a day for trading by and between banks in
Dollar deposits in the interbank eurodollar market.
"Capital Expenditures": for any period, with respect to any Person,
the aggregate of all expenditures by such Person and its Subsidiaries for the
acquisition or leasing (pursuant to a capital lease) of fixed or capital assets
or additions to equipment (including replacements, capitalized repairs and
improvements during such period) that should be capitalized under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries.
"Capital Lease Obligations": as to any Person, 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, for the purposes of
this Agreement, the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or overnight
bank deposits having maturities of six months or less from the date of
acquisition issued
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by any Lender or by any commercial bank organized under the laws of the United
States or any state thereof or any United States branch of a foreign bank, in
each case having combined capital and surplus of not less than $500,000,000; (c)
commercial paper of an issuer rated at least A-2 by Standard & Poor's Ratings
Services (together with any successor thereto, "S&P") or P-2 by Moody's
Investors Service, Inc. (together with any successor thereto, "Moody's"), or
carrying an equivalent rating by a nationally recognized rating agency, if both
of the two named rating agencies cease publishing ratings of commercial paper
issuers generally, and maturing within six months from the date of acquisition;
(d) repurchase obligations of any Lender or of any commercial bank satisfying
the requirements of clause (b) of this definition, having a term of not more
than 30 days, with respect to securities issued or fully guaranteed or insured
by the United States government; (e) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political subdivision or
taxing authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are
rated at least A by S&P or A by Moody's; (f) securities with maturities of six
months or less from the date of acquisition backed by standby letters of credit
issued by any Lender or any commercial bank satisfying the requirements of
clause (b) of this definition; (g) shares of money market mutual or similar
funds which invest exclusively in assets satisfying the requirements of clauses
(a) through (f) of this definition; or (h) solely in respect of the ordinary
course cash management activities of the Foreign Subsidiaries, equivalents of
the investments described in clause (a) above to the extent guaranteed by any
member state of the European Union or the country in which the Foreign
Subsidiary operates and equivalents of the investments described in clause (b)
above issued, accepted or offered by any commercial bank organized under the
laws of a member state of the European Union or the jurisdiction of organization
of the applicable Foreign Subsidiary having at the acquisition thereof combined
capital and surplus of not less than $250,000,000.
"Cash Management Obligations": as defined in the Guarantee and
Collateral Agreement. The parties hereto acknowledge and agree that the term
"Cash Management Obligations" for purposes of this Agreement and the other Loan
Documents includes, to the extent not expressly set forth in the definition
thereof or otherwise included as "Obligations" under the Guarantee and
Collateral Agreement, up to $15,000,000 at any time of obligations of the
Borrower and its Subsidiaries in respect of working capital and long term credit
agreements, credit facilities supporting letters of credit and/or bank issued
guarantees and foreign exchange lines of credit provided by any Lender (or any
Affiliate of a Lender) with the result that such obligations will be secured on
a pari passu basis with the Facilities.
"Cash Pooling Agreement": any agreement, substantially in the form of
the Cash Pooling Agreement dated August 4, 2006 among Tenneco Management
(Europe) Limited, Tenneco Canada Inc. and ABN AMRO Bank N.V. (the "Existing
Pooling Agreement"), by and among Borrower and/or any of its Subsidiaries, on
the one hand, and one or more banks or similar financing institutions, on the
other hand, together with any documents evidencing or governing any obligations
relating thereto (including any guarantee agreements and security documents
contemplated by or customary in connection with the Existing Pooling Agreement),
in each case as such agreements may be amended (including any amendment and
restatement thereof), supplemented or otherwise modified from time to time,
including any agreement extending the maturity of, refinancing, replacing or
otherwise restructuring, in whole or in part, obligations (or
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adding Foreign Subsidiaries as additional parties or other Subsidiaries as
guarantors thereunder) under any such agreement or any successor or replacement
agreement and whether by the same or any other lender or group of lenders,
provided that the terms of any such amendment, restatement, supplement or
modification, extension, refinancing, replacement or other agreement are similar
in all material respects to those in the Existing Pooling Agreement. The Cash
Pooling Agreements provide a cash management system for Foreign Subsidiaries of
the Borrower, and obligations of Foreign Subsidiaries thereunder may be
guaranteed by the Borrower and its Domestic Subsidiaries, provided, however,
that neither the Borrower nor any of its Domestic Subsidiaries may grant a
security interest in the Collateral or their other assets for the purpose of
such guarantee except to the extent the secured party is a Lender (or any
Affiliate of a Lender).
"Closing Date": the date that the conditions set forth in Section 5.1
shall have been satisfied, which date is March 16, 2007.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all property of the Loan Parties, now owned or hereafter
acquired, upon which a Lien is purported to be created by any Security Document.
"Commitment": as to any Lender, the sum of the Tranche B-1 Credit
Linked Deposit Amount and the Revolving Commitment of such Lender.
"Commitment Fee Rate": 0.35% per annum; provided, that on and after
the first Adjustment Date occurring after the fiscal quarter in which the
Closing Date occurs, the Commitment Fee Rate will be determined pursuant to the
Pricing Grid.
"Commonly Controlled Entity": an entity, whether or not incorporated,
that is under common control with the Borrower within the meaning of Section
4001 of ERISA or is part of a group that includes the Borrower and that is
treated as a single employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed by a Responsible
Officer substantially in the form of Exhibit B.
"Confidential Information Memorandum": the Confidential Information
Memorandum dated February 2007 and furnished to the Lenders.
"Consolidated Current Assets": at any date, all amounts (other than
cash and Cash Equivalents) that would, in conformity with GAAP, be set forth
opposite the caption "total current assets" (or any like caption) on a
consolidated balance sheet of the Borrower and its Subsidiaries at such date.
"Consolidated Current Liabilities": at any date, all amounts that
would, in conformity with GAAP, be set forth opposite the caption "total current
liabilities" (or any like caption) on a consolidated balance sheet of the
Borrower and its Subsidiaries at such date, but excluding (a) the current
portion of any Funded Debt of the Borrower and its Subsidiaries and (b) without
duplication of clause (a) above, all Indebtedness consisting of Revolving Loans,
Swingline Loans or Tranche B-1 Loans to the extent otherwise included therein.
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"Consolidated EBITDA": for any period, Consolidated Net Income for
such period plus, without duplication and to the extent reflected as a charge in
the statement of such Consolidated Net Income for such period, the sum of (a)
income tax expense, (b) Consolidated Interest Expense, amortization or writeoff
of debt discount and debt issuance costs and commissions, discounts and other
fees and charges associated with Indebtedness (including the Loans), (c)
depreciation and amortization expense, (d) amortization of intangibles
(including, but not limited to, goodwill) and organization costs, (e) any
extraordinary, unusual or non-recurring non-cash expenses or losses (including,
whether or not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, non-cash losses on sales of assets
outside of the ordinary course of business), (f) all premiums and interest rate
hedge termination costs in connection with any purchase or redemption of the
Senior Subordinated Notes and/or the Second Lien Notes and (g) any other
non-cash charges (excluding any such charge that constitutes an accrual of or a
reserve for cash charges for any future period), and minus, to the extent taken
into account in calculating Consolidated Net Income for such period, the sum of
(a) interest income, (b) any extraordinary, unusual or non-recurring non-cash
income or gains (including, whether or not otherwise includable as a separate
item in the statement of such Consolidated Net Income for such period, gains on
the sales of assets outside of the ordinary course of business) and (c) any
other non-cash income, all as determined on a consolidated basis. For the
purposes of calculating Consolidated EBITDA for any period of four consecutive
fiscal quarters (each, a "Reference Period") pursuant to any determination of a
Financial Covenant, if during such Reference Period the Borrower or any
Subsidiary shall have made a Material Acquisition, Consolidated EBITDA for such
Reference Period shall be calculated after giving pro forma effect thereto as if
such Material Acquisition occurred on the first day of such Reference Period. As
used in this definition, "Material Acquisition" means any acquisition of
property or series of related acquisitions of property that (a) constitutes
assets comprising all or substantially all of an operating unit of a business or
constitutes all or substantially all of the common stock of a Person and (b)
involves the payment of consideration by the Borrower and its Subsidiaries in
excess of $5,000,000. In addition, Consolidated EBITDA for each fiscal quarter
of the Borrower shall be increased by the amount of cash restructuring charges
and related expenses associated with restructurings undertaken by the Borrower
and/or its Subsidiaries in the United States and/or internationally included in
the calculation of Consolidated Net Income for such fiscal quarter, provided
that the aggregate amount of such cash restructuring charges announced and
taken, in each case, after the Closing Date shall not exceed $80,000,000. For
purposes of the foregoing sentence, "cash" restructuring charges and related
expenses shall be deemed to include any accrual of or reserve for cash
restructuring charges and related expenses for any future period. In addition,
for purposes of calculating any Financial Covenant, Consolidated EBITDA for each
fiscal quarter of the Borrower (beginning with the first fiscal quarter in
fiscal year 2007) shall be increased (but not by more than $10,000,000 in each
fiscal year beginning in fiscal year 2007) by the amount of aftermarket
acquisition costs of the Borrower and its Subsidiaries to the extent such costs
otherwise reduce Consolidated EBITDA for such fiscal quarter. In addition, in
the event that any Permitted Sale/Leaseback results in the Borrower or a
Subsidiary entering into an operating lease, then Consolidated EBITDA for any
period shall be deemed to be increased by the amount of lease payments under
such operating lease made during such period.
"Consolidated Interest Coverage Ratio": for any period, the ratio of
(a) Consolidated EBITDA for such period to (b) Consolidated Interest Expense for
such period.
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"Consolidated Interest Expense": for any period, total interest
expense of the Borrower and its Subsidiaries for such period determined in
accordance with GAAP (excluding all premiums and interest rate hedge termination
costs in connection with any purchase or redemption of the Senior Subordinated
Notes and/or the Second Lien Notes), net of interest income. Notwithstanding the
foregoing, in the event that Borrower or a Subsidiary has entered into an
operating lease in connection with a Permitted Sale/Leaseback, then Consolidated
Interest Expense for any period shall be deemed to be increased by the interest
component of lease payments under such operating lease made during such period
(as determined based on the applicable schedule setting forth the components of
lease payments delivered pursuant to Section 7.11).
"Consolidated Leverage Ratio": as at the last day of any period, the
ratio of (a) Consolidated Total Debt on such day to (b) Consolidated EBITDA for
such period. Notwithstanding the foregoing, in the event that the Borrower or a
Subsidiary has entered into an operating lease in connection with a Permitted
Sale/Leaseback then for purposes of calculating the Consolidated Leverage Ratio
on any day, Consolidated Total Debt shall be deemed to be increased by the
remaining unamortized principal component of such operating lease (as determined
based on the applicable schedule setting forth the components of lease payments
delivered pursuant to Section 7.11).
"Consolidated Net Income": for any period, the consolidated net income
(or loss) of the Borrower and its Subsidiaries, determined on a consolidated
basis in accordance with GAAP; provided that there shall be excluded (a) the
income (or deficit) of any Person accrued prior to the date it becomes a
Subsidiary of the Borrower or is merged into or consolidated with the Borrower
or any of its Subsidiaries, (b) the income (or deficit) of any Person (other
than a Subsidiary of the Borrower) in which the Borrower or any of its
Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by the Borrower or such Subsidiary in the form of
dividends or similar distributions and (c) the undistributed earnings of any
Subsidiary of the Borrower to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of any Contractual Obligation (other than under any Loan
Document) or Requirement of Law applicable to such Subsidiary. Notwithstanding
the foregoing, any reduction to Consolidated Net Income otherwise required by
the Borrower's adoption of FAS 123R shall be disregarded in calculating
Consolidated Net Income.
"Consolidated Net Leverage Ratio": at the last day of any period, the
ratio of (a) Consolidated Total Debt on such day less the aggregate amount of
unrestricted cash and cash equivalents of the Borrower and its Subsidiaries in
excess of $50,000,000 (such excess amount not to exceed $150,000,000) to (b)
Consolidated EBITDA for such period. Notwithstanding the foregoing, in the event
that the Borrower or a Subsidiary has entered into an operating lease in
connection with a Permitted Sale/Leaseback then for purposes of calculating the
Consolidated Net Leverage Ratio on any day, Consolidated Total Debt shall be
deemed to be increased by the remaining unamortized principal component of such
operating lease (as determined based on the applicable schedule setting forth
the components of lease payments delivered pursuant to Section 7.11).
9
"Consolidated Total Assets": at any date, all amounts that would, in
conformity with GAAP, be set forth opposite the caption "total assets" (or any
like caption) on a consolidated balance sheet of the Borrower and its
Subsidiaries at such date.
"Consolidated Total Debt": at any date, the aggregate principal amount
of all Indebtedness of the Borrower and its Subsidiaries at such date,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Working Capital": at any date, the excess of
Consolidated Current Assets on such date over Consolidated Current Liabilities
on such date.
"Continuing Directors": the directors of the Borrower on the Closing
Date, and each other director, if, in each case, such other director's
nomination for election to the board of directors of the Borrower is recommended
by at least a majority of the then Continuing Directors.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Default": any of the events specified in Section 8, whether or not
any requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"Defaulting Lender": any Lender with respect to which a Lender Default
is in effect. For purposes of this definition, "Lender Default" means the
refusal (which has not been retracted) or the failure of a Lender to fund any of
its obligations under this Agreement (whether in respect of Loans, participating
interests in Letters of Credit or Swingline Loans, reimbursement obligations,
Tranche B-1 Credit Linked Amounts or otherwise). Notwithstanding the foregoing,
no Lender shall be a Defaulting Lender in respect of an obligation if Lenders
holding at least 51% of the commitment to fund such obligation also fail to
fund.
"Disposition": with respect to any property, any sale, lease, sale and
leaseback, assignment, conveyance, transfer or other disposition thereof (other
than any transaction for purposes of collateral or security to the extent
permitted hereunder). The terms "Dispose" and "Disposed of" shall have
correlative meanings.
"Documentation Agents": as defined in the preamble hereto.
"Dollars" and "$": dollars in lawful currency of the United States.
"Domestic Subsidiary": any Subsidiary of the Borrower organized under
the laws of any jurisdiction within the United States.
"Early Maturity Date": the earlier of (i) in the event that all the
Second Lien Notes have not been refinanced or the maturity thereof has not been
extended in a transaction permitted by this Agreement prior to December 15, 2012
to a date not earlier than September 30, 2014, December 15, 2012 and (ii) in the
event that all the Second Lien Notes have been refinanced or the maturity
thereof has been extended to a date prior to September 30, 2014, the date which
is six
10
months prior to the date to which the Second Lien Notes have been refinanced or
for which the maturity has been extended.
"Environmental Laws": as to any Person, any and all foreign, Federal,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority or other
Requirements of Law (including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human health or the
environment, as now or may at any time hereafter be in effect, in each case
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurodollar Loans": Loans the rate of interest applicable to which is
based upon the Eurodollar Rate. Notwithstanding the foregoing, Tranche B-1 Loans
shall not be considered Eurodollar Loans for purposes of the Loan Documents.
"Eurodollar Rate": with respect to each day during (a) each Interest
Period pertaining to a Eurodollar Loan or a Tranche B-1 Loan (except with
respect to any Tranche B-1 Loans which are deemed to be ABR Loans in accordance
with Section 2.4(f)), as the case may be, or (b) each calendar month for which
the Tranche B-1 Eurodollar Rate is being determined for purposes of Section
2.4(e), the rate per annum determined on the basis of the rate for deposits in
Dollars for a period equal to such Interest Period commencing on the first day
of such Interest Period appearing on Page 3750 of the Dow Jones Markets screen
as of 11:00 a.m., London time, two Business Days prior to the beginning of such
Interest Period. In the event that such rate does not appear on Page 3750 of the
Dow Jones Markets screen (or otherwise on such screen), the "Eurodollar Rate"
shall be determined by reference to such other comparable publicly available
service for displaying eurodollar rates as may be selected by the Administrative
Agent or, in the absence of such availability, by reference to the rate at which
the Administrative Agent is offered Dollar deposits at or about 11:00 a.m., New
York City time, two Business Days prior to the beginning of such Interest Period
in the interbank eurodollar market where its eurodollar and foreign currency and
exchange operations are then being conducted for delivery on the first day of
such Interest Period for the number of days comprised therein.
"Eurodollar Tranche": the collective reference to Eurodollar Loans
under a particular Facility the then current Interest Periods with respect to
all of which begin on the same date and end on the same later date (whether or
not such Loans shall originally have been made on the same day).
"Event of Default": any of the events specified in Section 8, provided
that any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrower, the excess,
if any, of (a) the sum, without duplication, of (i) Consolidated Net Income for
such fiscal year, (ii) an amount equal to the amount of all non-cash charges
(including depreciation and amortization) deducted in arriving at such
Consolidated Net Income, (iii) an amount equal to the aggregate net
11
decrease in Consolidated Working Capital for such fiscal year, (iv) an amount
equal to the aggregate net non-cash loss on the Disposition of property by the
Borrower and its Subsidiaries during such fiscal year (other than sales of
inventory in the ordinary course of business), to the extent deducted in
arriving at such Consolidated Net Income, (v) an amount equal to the aggregate
net increase in Consolidated Working Capital attributable to foreign currency
translation adjustments of the Borrower and its Subsidiaries during such fiscal
year, (vi) an amount equal to the aggregate net non-cash increase in
Consolidated Working Capital of the Borrower and its Subsidiaries during such
fiscal year, (vii) an amount equal to the non-cash, non-current deferred income
tax expense deducted in arriving at Consolidated Net Income, and (viii) pension
expenses of the Borrower and its Subsidiaries in such period, over (b) the sum,
without duplication, of (i) an amount equal to the amount of all non-cash
credits included in arriving at such Consolidated Net Income, (ii) the aggregate
amount actually paid by the Borrower and its Subsidiaries in cash during such
fiscal year on account of Capital Expenditures (excluding the principal amount
of Indebtedness incurred in connection with such expenditures, any such
expenditures financed with the proceeds of any Reinvestment Deferred Amount and
any Capital Expenditures with respect to which the Borrower delivered a
certificate pursuant to the immediately following clause (iii) in connection
with the calculation of Excess Cash Flow immediately prior fiscal year), (iii)
the aggregate amount of Capital Expenditures that the Borrower or any of its
Subsidiaries became obligated to make but that are not made during such fiscal
year, provided that the Borrower shall deliver a certificate to the
Administrative Agent not later than 90 days after the end of such fiscal year,
signed by a Responsible Officer of the Borrower and certifying that such Capital
Expenditures will be made in the following year, (iv) the net amount of all
prepayments of Tranche B-1 Loans, Revolving Loans and Swingline Loans and other
revolving credit facilities during such fiscal year and all optional prepayments
of the Term Loans during such fiscal year, (v) the aggregate amount of all
regularly scheduled principal payments of Funded Debt (including the Term Loans)
of the Borrower and its Subsidiaries made during such fiscal year, (vi) an
amount equal to the aggregate net increase in Consolidated Working Capital for
such fiscal year, (vii) an amount equal to the aggregate net cash gains on the
Disposition of property by the Borrower and its Subsidiaries during such fiscal
year (other than sales of inventory in the ordinary course of business) to the
extent included in arriving at such Consolidated Net Income, (viii) an amount
equal to Investments permitted by Section 7.8 made by the Borrower and its
Subsidiaries during such fiscal year, (ix) an amount equal to the aggregate net
cash gains on the Disposition of property by the Borrower and its Subsidiaries
consisting of Asset Sales the Net Cash Proceeds of which are required to be
applied during such fiscal year to the prepayment of the Term Loans or the
reduction of the Total Tranche B-1 Credit Linked Deposit Amount pursuant to
Section 2.13, (x) an amount equal to the aggregate net decrease in Consolidated
Working Capital attributable to foreign currency translation adjustments of the
Borrower and its Subsidiaries during such fiscal year, (xi) an amount equal to
the aggregate net non-cash decrease in Consolidated Working Capital of the
Borrower and its Subsidiaries during such fiscal year, (xii) an amount equal to
non-cash, non-current deferred income tax benefit included in arriving at
Consolidated Net Income, (xiii) pension contributions paid in cash by the
Borrower and its Subsidiaries during such period, and (xiv) amounts expended to
purchase and cancel or redeem the Borrower's Second Lien Notes as permitted by
the last sentence of Section 7.15.
"Excess Cash Flow Application Date": as defined in Section 2.13(c).
"Exchange Act": the Securities Exchange Act of 1934, as amended.
12
"Excluded Subsidiary": (i) any Foreign Subsidiary, (ii) any other
Subsidiary if and at such time as the Borrower and its Subsidiaries own Capital
Stock representing less than 80% of the ordinary voting power of such other
Subsidiary, (iii) any Immaterial Domestic Subsidiary and (iv) any Finance
Subsidiary if the execution and delivery of any Loan Document by such Finance
Subsidiary would materially adversely affect the treatment of any Permitted
Receivables Financing as a true sale transaction.
"Existing Credit Agreement": as defined in the recitals hereto.
"Existing Letters of Credit": the Letters of Credit (as defined in the
Existing Credit Agreement) outstanding on the Closing Date immediately prior to
the effectiveness of this Agreement.
"Existing Loans": the Loans (as defined in the Existing Credit
Agreement) outstanding on the Closing Date immediately prior to the
effectiveness of this Agreement.
"Exiting Lender": each Lender under the Existing Credit Agreement
which is not a Lender under this Agreement on the Closing Date.
"Facility": each of (a) the Tranche A Term Loans (the "Tranche A Term
Facility"), (b) the Tranche B-1 Credit Linked Deposit Amounts and the Tranche
B-1 Loans made and the Tranche B-1 Letters of Credit issued thereunder (the
"Tranche B-1 Facility"), (c) the Revolving Commitments and the extensions of
credit made thereunder (the "Revolving Facility"), and (d) each other credit
facility that may be added to this Agreement after the date hereof.
"Federal Funds Effective Rate": for any day, the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it.
"Finance Subsidiary": Tenneco Automotive RSA Company and any other
Wholly Owned Subsidiary of the Borrower that is formed for the sole purpose of
engaging in Permitted Receivables Financings.
"Financial Covenant": any of the Consolidated Interest Coverage Ratio,
the Consolidated Leverage Ratio, the Consolidated Net Leverage Ratio and the
Senior Secured Leverage Ratio.
"First Priority Claims": as defined in the Intercreditor Agreement.
"Foreign Subsidiary": any Subsidiary of the Borrower that is not a
Domestic Subsidiary.
"Funded Debt": as to any Person, all Indebtedness of such Person that
matures more than one year from the date of its creation or matures within one
year from such date but is renewable or extendible, at the option of such
Person, to a date more than one year from such date
13
or arises under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year from
such date, including all current maturities and current sinking fund payments in
respect of such Indebtedness whether or not required to be paid within one year
from the date of its creation and, in the case of the Borrower, Indebtedness in
respect of the Loans.
"Funding Office": the office of the Administrative Agent specified in
Section 10.2 or such other office as may be specified from time to time by the
Administrative Agent as its funding office by written notice to the Borrower and
the Lenders.
"GAAP": generally accepted accounting principles in the United States
as in effect from time to time, except that for purposes of the definition of
"Applicable Prepayment Percentage" or any Financial Covenant, GAAP shall be
determined on the basis of such principles in effect on the date hereof and
consistent with those used in the preparation of the most recent audited
financial statements delivered pursuant to Section 4.1, provided that, if the
Borrower notifies the Administrative Agent within one year after the
effectiveness of any applicable Accounting Change (as defined below) that the
Borrower requests an amendment to any provision hereof to eliminate the effect
of such Accounting Change or in the application thereof on the operation of such
provision (or if the Administrative Agent notifies the Borrower within one year
after the effectiveness of any such Accounting Change that the Administrative
Agent requests an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such Accounting
Change or in the application thereof, then such provision shall be interpreted
on the basis of GAAP as in effect and applied immediately before such Accounting
Change shall have become effective until such notice shall have been withdrawn
or such provision amended in accordance herewith. "Accounting Change" refers to
a change after the date hereof in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of Certified Public
Accountants or, if applicable, the SEC.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).
"Granting Bank": as defined in Section 10.6(d).
"Guarantee and Collateral Agreement": the Guarantee and Collateral
Agreement dated as of November 4, 1999 executed and delivered by the Borrower
and each Subsidiary Guarantor pursuant to the Existing Credit Agreement, a copy
of which as amended and supplemented to the date hereof is attached hereto as
Exhibit A, as the same may be amended, supplemented or otherwise modified from
time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person (including
any bank under any letter of credit) to induce the creation of which obligation
the guaranteeing person has issued a reimbursement, counter indemnity or similar
obligation, in either case guaranteeing or in effect
14
guaranteeing any Indebtedness, leases, dividends or other obligations (the
"primary obligations") of any other third Person (the "primary obligor") in any
manner, whether directly or indirectly, including any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (b) the maximum amount
for which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary obligation
and the maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.
"Guarantors": the collective reference to the Subsidiary Guarantors
and any other Person that guarantees payment of all or a portion of the
Obligations.
"Hedge Agreements": all interest rate swaps, caps or collar agreements
or similar arrangements dealing with interest rates or currency exchange rates
or the exchange of nominal interest obligations, either generally or under
specific contingencies.
"Immaterial Domestic Subsidiary": at any time, any Domestic Subsidiary
of the Borrower having total assets (as determined in accordance with GAAP) in
an amount of less than 1% of Consolidated Total Assets of the Borrower and its
Domestic Subsidiaries; provided, however, that the total assets (as so
determined) of all Immaterial Domestic Subsidiaries shall not exceed 5% of
Consolidated Total Assets of the Borrower and its Domestic Subsidiaries. In the
event that total assets of all Immaterial Domestic Subsidiaries exceed 5% of
Consolidated Total Assets of the Borrower and its Domestic Subsidiaries, the
Borrower will designate Domestic Subsidiaries which would otherwise constitute
Immaterial Domestic Subsidiaries to be excluded as Immaterial Domestic
Subsidiaries until such 5% threshold is met.
"Immaterial Subsidiary": at any time, any Subsidiary of the Borrower
(i) having total assets (as determined in accordance with GAAP) in an amount of
less than 1% of Consolidated Total Assets of the Borrower and its Subsidiaries
and (ii) contributing less than 1% to Consolidated EBITDA for the period of
twelve consecutive fiscal months most recently ended for which financial
statements are available; provided, however, that the total assets (as so
determined) and Consolidated EBITDA contribution (as so determined) of all
Immaterial Subsidiaries shall not exceed 5% of Consolidated Total Assets of the
Borrower and
15
its Subsidiaries or 5% of Consolidated EBITDA for the relevant period, as the
case may be. In the event that total assets of all Immaterial Subsidiaries
exceed 5% of Consolidated Total Assets of the Borrower and its Subsidiaries or
the total contribution to Consolidated EBITDA of all Immaterial Subsidiaries
exceeds 5% of Consolidated EBITDA for the relevant period, as the case may be,
the Borrower will designate Subsidiaries which would otherwise constitute
Immaterial Subsidiaries to be excluded as Immaterial Subsidiaries until such 5%
thresholds are met.
"Incremental Facility": as defined in Section 2.27.
"Indebtedness": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (other than any
such obligations incurred in the ordinary course of such Person's business
maturing less than one (1) year from the creation thereof), (c) all obligations
of such Person evidenced by notes, bonds, debentures or other similar
instruments (other than an operating lease, synthetic lease or similar
arrangement), (d) for the purposes of Sections 7.2 and 8(e) only, all
indebtedness created or arising under any conditional sale or other title
retention agreement (other than an operating lease) with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (e) for the purposes of Sections 7.2 and 8(e) only,
all Capital Lease Obligations of such Person, provided that Capital Lease
Obligations of such Person arising from Permitted Sale/Leasebacks shall be
Indebtedness for purposes of any Financial Covenant and related defined terms,
(f) for the purposes of Sections 7.2 and 8(e) only, all obligations of such
Person, contingent or otherwise, as an account party under acceptances, surety
bonds or similar arrangements (other than obligations arising out of
endorsements of instruments for deposit or collection in the ordinary course of
business), (g) all unpaid reimbursement obligations of such Person in respect of
drawings under letters of credit and, for purposes of Sections 7.2 and 8(e)
only, the face amount of all letters of credit issued for the account of such
Person, (h) for the purposes of Sections 7.2 and 8(e) only, all Guarantee
Obligations of such Person in respect of obligations of the kind referred to in
clauses (a) through (f) above, (i) without limitation of the foregoing, all
obligations of the kind referred to in clauses (a) through (h) above secured by
(or for which the holder of such obligation has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including accounts and
contract rights) owned by such Person, whether or not such Person has assumed or
become liable for the payment of such obligation, provided that the amount of
any such obligation shall be deemed to be the lesser of the face principal
amount thereof and the fair market value of the property subject to such Lien
and (j) for the purposes of Sections 7.2 and 8(e) only, all obligations of such
Person in respect of Hedge Agreements. Notwithstanding the foregoing,
obligations of the Borrower and its Subsidiaries in respect of bankers'
acceptances issued through joint ventures in the People's Republic of China up
to an aggregate amount at any time outstanding of $15,000,000 shall not
constitute Indebtedness.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including
copyrights, copyright licenses, patents, patent licenses,
16
trademarks, trademark licenses, technology, know-how and processes, and all
rights to sue at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.
"Intercreditor Agreement": the Intercreditor Agreement dated as of
June 19, 2003 entered into among the collateral agent for the Second Lien Note
Holders, the Administrative Agent and the Borrower, a copy of which is attached
hereto as Exhibit F, as the same may be amended, supplemented or otherwise
modified from time to time.
"Interest Payment Date": (a) as to any ABR Loan (other than any
Tranche B-1 Loans which are deemed to be ABR Loans in accordance with Section
2.4(f)), the second Business Day of each January, April, July and October to
occur while such Loan is outstanding and the final maturity date of such Loan,
(b) as to any Eurodollar Loan having an Interest Period of three months or less,
the last day of such Interest Period, (c) as to any Eurodollar Loan having an
Interest Period longer than three months, each day that is three months, or a
whole multiple thereof, after the first day of such Interest Period and the last
day of such Interest Period, (d) as to any Loan (other than any Revolving Loan
that is an ABR Loan, any Swingline Loan and any Tranche B-1 Loan), the date of
any repayment or prepayment made in respect thereof and (e) as to any Tranche
B-1 Loan (including any Tranche B-1 Loans which are deemed to be ABR Loans in
accordance with Section 2.4(f)), the third Business Day of each calendar month
to occur while such Tranche B-1 Loan is outstanding.
"Interest Period": (a) as to any Eurodollar Loan, (i) initially, the
period commencing on the borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one or two weeks, or one, two, three
or six months thereafter, as selected by the Borrower in its notice of borrowing
or notice of conversion, as the case may be, given with respect thereto, or any
other period agreed upon between the Borrower and the Lenders; (ii) thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Eurodollar Loan and ending one or two weeks, or one, two,
three or six months thereafter, as selected by the Borrower by irrevocable
notice to the Administrative Agent not less than three Business Days prior to
the last day of the then current Interest Period with respect thereto; provided
that, all of the foregoing provisions relating to Interest Periods are subject
to the following:
(A) if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
(B) the Borrower may not select an Interest Period under a particular
Facility that would extend beyond the Revolving Termination Date, in the
case of the Revolving Facility, beyond the Tranche A Final Maturity Date,
in the case of the Tranche A Term Facility, or beyond the Tranche B-1 Final
Maturity Date or the Early Maturity Date, as applicable in the case of the
Tranche B-1 Facility;
(C) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at
17
the end of such Interest Period) shall end on the last Business Day of a
calendar month unless such Interest Period has a duration of less than one
month;
(D) the Borrower shall select Interest Periods so as not to require a
payment or prepayment of any Eurodollar Loan during an Interest Period for
such Loan; and
(E) the initial Interest Period may be the period beginning on the
Closing Date and ending March 30, 2007.
(b) as to any Tranche B-1 Loan, (i) initially, the period commencing on the
Closing Date and ending March 31, 2007, and (ii) thereafter, each period
commencing on the first day of the next succeeding calendar month and ending on
the last day of such next succeeding calendar month, except to the extent
otherwise provided in Section 2.4(f).
"Investments": as defined in Section 7.8.
"Issuing Lender": JPMCB or any other Lender requested by the Borrower
and reasonably acceptable to the Administrative Agent which agrees to act as an
Issuing Lender hereunder, in its capacity as issuer of any Letter of Credit.
"Joint Venture": any Person in which the Borrower and/or its
Subsidiaries hold less than a majority of the Capital Stock, and which does not
constitute a Subsidiary of the Borrower, whether direct or indirect.
"JPMCB": JPMorgan Chase Bank, N.A.
"L/C Fee Payment Date": in the case of Revolving Letters of Credit,
the first Business Day of each January, April, July or October and the last day
of the Revolving Commitment Period; and, in the case of the Tranche B-1 Letters
of Credit, the second Business Day of each calendar month and the Early Maturity
Date or the Tranche B-1 Final Maturity Date, as applicable.
"L/C Obligations": at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit that
have not then been reimbursed pursuant to Section 3.5.
"L/C Participants": (a) in the case of Revolving Letters of Credit,
the collective reference to all the Revolving Lenders other than the Issuing
Lender; and (b) in the case of Tranche B-1 Letters of Credit, the collective
reference to all the Tranche B-1 Lenders.
"Lender Affiliate": (a) with respect to any Lender (i) an Affiliate of
such Lender or (ii) any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise investing
in bank loans and similar extensions of credit in the ordinary course of its
business and is administered or managed by such Lender or an Affiliate of such
Lender and (b) with respect to any Lender that is a fund which invests in bank
loans and similar extensions of credit, any other fund that invests in bank
loans and similar extensions of
18
credit and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Lenders": as defined in the preamble hereto.
"Letters of Credit": the collective reference to the Revolving Letters
of Credit and the Tranche B-1 Letters of Credit.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement and any capital lease having substantially the
same economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Security Documents, the
Intercreditor Agreement and the Notes.
"Loan Parties": the Borrower and each Subsidiary of the Borrower that
is a party to a Loan Document.
"Majority Facility Lenders": with respect to any Facility, the holders
(other than Defaulting Lenders) of more than 50% of the aggregate unpaid
principal amount of the Tranche A Term Loans (excluding Tranche A Term Loans
held by Defaulting Lenders), the Total Revolving Extensions of Credit (excluding
Revolving Extensions held by Defaulting Lenders) or the Total Tranche B-1
Extensions of Credit (excluding Tranche B-1 Extensions of Credit held by
Defaulting Lenders), as the case may be, outstanding under such Facility or (i)
in the case of the Revolving Facility, prior to any termination of the Revolving
Commitments, the holders (other than Defaulting Lenders) of more than 50% of the
Total Revolving Commitments (excluding Revolving Commitments of Defaulting
Lenders) and (ii) in the case of the Tranche B-1 Facility, prior to any
termination of the Tranche B-1 Credit Linked Deposits, the holders (other than
Defaulting Lenders) of more than 50% of the Total Tranche B-1 Credit Linked
Deposit Amount (excluding Tranche B-1 Credit Linked Deposit Amounts of
Defaulting Lenders).
"Material Adverse Effect": a material adverse effect on (a) the
Transaction or (b) the business, property, operations or condition (financial or
otherwise) of the Borrower and its Subsidiaries taken as a whole.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including asbestos, polychlorinated biphenyls
and urea-formaldehyde insulation.
"Moody's": as defined in the definition of "Cash Equivalents".
"Mortgaged Properties": the real properties subject to the Mortgages
designated in Schedule 1.1B and any other real properties required to be
mortgaged pursuant to Section 6.9.
19
"Mortgages": each of the mortgages and deeds of trust described in
Schedule 1.1B and each other mortgage or deed of trust made on or after the
Closing Date by any Loan Party in favor of, or for the benefit of, the
Administrative Agent for the benefit of the Lenders, substantially in the form
of Exhibit D to the Existing Credit Agreement (with such changes thereto as
shall be advisable under the law of the jurisdiction in which such mortgage or
deed of trust is to be recorded), as the same may be amended, supplemented or
otherwise modified from time to time.
"Multiemployer Plan": a Plan that is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or any
Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents
(including any such proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise, but only as and when received) of such Asset Sale or
Recovery Event, net of attorneys' fees, accountants' fees, investment banking
fees, amounts required to be applied to the repayment of Indebtedness secured by
a Lien expressly permitted hereunder on any asset that is the subject of such
Asset Sale or Recovery Event (other than any Lien pursuant to a Security
Document) and other fees and expenses actually incurred in connection therewith
and net of taxes paid or reasonably estimated to be payable as a result thereof
(after taking into account any available tax credits or deductions and any tax
sharing arrangements) and (b) in connection with any issuance or sale of Capital
Stock or any incurrence of Indebtedness, the cash proceeds received from such
issuance or incurrence, net of attorneys' fees, investment banking fees,
accountants' fees, underwriting discounts and commissions and other fees and
expenses actually incurred in connection therewith.
"Non-Excluded Taxes": as defined in Section 2.21(a).
"Non-U.S. Lender": as defined in Section 2.21(d).
"Notes": the collective reference to any promissory note evidencing
Loans.
"Obligations": the unpaid principal of and interest on (including
interest accruing after the maturity of the Loans and Reimbursement Obligations
and interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) the Loans and all other obligations and
liabilities of the Borrower to the Administrative Agent or to any Lender (or, in
the case of Hedge Agreements or Cash Management Obligations, any affiliate of
any Lender), whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, this Agreement, any other Loan Document, the Letters
of Credit, Cash Management Obligations, any Hedge Agreement entered into with
any Lender or any affiliate of any Lender or any other document made, delivered
or given in connection herewith or therewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
(including all fees, charges and disbursements of counsel to the Administrative
Agent or to any Lender that are required to be paid by the Borrower pursuant
hereto) or otherwise.
20
"Other Taxes": any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder (exclusive of any franchise tax or any tax
assessment on the overall net income of a recipient) or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
"Participant": as defined in Section 10.6(b).
"Patriot Act": the USA Patriot Act, Title III of Pub. L. 107-56,
signed into law on October 26, 2001 or any subsequent legislation that amends,
supplements or supersedes such Act.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Receivables Financing": (a) any sale by the Borrower or a
Domestic Subsidiary of accounts receivable to a Finance Subsidiary intended to
be (and which shall be treated for the purposes hereof as) a true sale
transaction with customary limited recourse based upon the collectibility of the
receivables sold and the corresponding sale or pledge of such accounts
receivable (or an interest therein) by the Finance Subsidiary, in each case
without any guarantee by the Borrower or any other Subsidiary thereof, provided,
however, that (i) the terms, conditions and structure (including the legal and
organizational structure of the Finance Subsidiary and the restrictions imposed
on its activities) of and the documentation incident to any such transactions
entered into after the date hereof must be reasonably acceptable to the
Administrative Agent and (b) any sale or financing by any Foreign Subsidiary to
or with local buyers or lenders of accounts receivable in the ordinary course of
business, in each case without any guarantee by the Borrower or any Domestic
Subsidiary. The aggregate principal amount of the proceeds received from parties
outside of Borrower's consolidated group and which remains outstanding in all
transactions described in the preceding clauses (a) and (b) will not exceed
$250,000,000 at any time and from time to time. In addition to receivables and
their proceeds, the assets transferred in a Permitted Receivables Financing may
include (i) any collateral for transferred receivables (other than any interest
in goods the sale of which gave rise to such receivables) and any agreements
supporting or securing payment of transferred receivables, (ii) any service
contracts or other agreements associated with such receivables and records
relating to such receivables, (iii) any bank account or lock box maintained
primarily for the purpose of receiving collections of transferred receivables
and (iv) proceeds of all of the foregoing.
"Permitted Refinancing Indebtedness":
(a) with respect to the Senior Subordinated Notes, subordinated
Indebtedness of the Borrower which satisfies the following conditions: (i) such
Indebtedness (including permitted guarantees thereof described in clause (v)
below) is at least as subordinated in right of payment and otherwise to the
Obligations and other senior Indebtedness as are the Senior Subordinated Notes,
(ii) the principal amount of such Indebtedness is no greater than the sum of the
principal amount of the Senior Subordinated Notes being refinanced plus any fees
and premiums arising in connection with such refinancing, (iii) such
Indebtedness has no required (scheduled and mandatory) principal payments prior
to the date which is six months after the Tranche B-1 Final Maturity Date (or,
if later, six months after the then scheduled final maturity date of any
Incremental Facility) (other
21
than pursuant to change of control and asset sale covenants substantially
similar to those in the Senior Subordinated Note Indenture), (iv) the material
terms of such Indebtedness in the aggregate are at least as favorable to the
Borrower and its Subsidiaries as are the Senior Subordinated Notes and
guarantees thereof by Subsidiaries (provided, however, that notwithstanding the
foregoing, the terms of the interest or dividend rate, yields and redemption
prices in respect of such refinancing subordinated Indebtedness need not be as
favorable to the Borrower and its Subsidiaries as are the corresponding terms in
the Senior Subordinated Notes so long as such terms in the aggregate are in the
reasonable judgment of the Borrower at least as favorable to the Borrower and
its Subsidiaries as are the corresponding terms of similar securities issued by
similarly situated issuers after taking into account the then prevailing market
conditions) and (v) if required to be guaranteed, such Indebtedness is
guaranteed only by Subsidiaries which have guaranteed payment of the Obligations
pursuant to subordination and guarantee provisions at least as favorable to the
holders of the Obligations as are those in the Senior Subordinated Note
Indenture; and
(b) with respect to the Second Lien Notes, Indebtedness of the
Borrower which satisfies the following conditions: (i) such Indebtedness is
unsecured or, if such Indebtedness is secured, the intercreditor arrangements
with respect to such Indebtedness (including subordination of liens) are at
least as favorable to the holders of the Obligations as are set forth in the
Intercreditor Agreement with respect to the Second Lien Notes, (ii) the
principal amount of such Indebtedness is no greater than the sum of the
principal amount of the Second Lien Notes being refinanced plus any fees and
premiums arising in connection with such refinancing, (iii) such Indebtedness
has no required (scheduled and mandatory) principal payments prior to the date
which is six months after the Tranche B-1 Final Maturity Date (or, if later, six
months after the then scheduled final maturity date of any Incremental Facility)
(other than pursuant to change of control and asset sale covenants substantially
similar to those in the Second Lien Note Indenture or that, in the reasonable
judgment of the Borrower, are at least as favorable to the Borrower and its
Subsidiaries as are the corresponding terms of similar Indebtedness issued by
similarly-situated issuers after taking into account the then-prevailing market
conditions), (iv) the material terms of such Indebtedness in the aggregate are
at least as favorable to the Borrower and its Subsidiaries as are the Second
Lien Notes (provided, however, that notwithstanding the foregoing, the terms of
such Indebtedness need not be as favorable to the Borrower and its Subsidiaries
as are the corresponding terms in the Second Lien Notes so long as such terms in
the aggregate are in the reasonable judgment of the Borrower at least as
favorable to the Borrower and its Subsidiaries as are the corresponding terms of
similar Indebtedness issued by similarly situated issuers after taking into
account the then prevailing market conditions) and (v) if required to be
guaranteed, such Indebtedness is guaranteed only by Subsidiaries which have
guaranteed payment of the Obligations pursuant to guarantee provisions at least
as favorable to the holders of the Obligations as are those in the Second Lien
Note Indenture.
"Permitted Sale/Leasebacks": as defined in Section 7.11.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan that is
covered by ERISA and in respect of which the Borrower or a Commonly Controlled
Entity is (or, if such plan were
22
terminated at such time, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"Pricing Grid": the pricing grid attached hereto as Annex A.
"Properties": as defined in Section 4.17(a).
"Qualified Capital Stock": Capital Stock of the Borrower in respect of
which no scheduled, mandatory or required payments are due (other than payments
in kind) prior to the date which is six months after the Tranche B-1 Final
Maturity Date (or, if later, six months after the then scheduled final maturity
date of any Incremental Facility).
"Recovery Event": any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding relating to
any asset of the Borrower or any of its Subsidiaries.
"Refunded Swingline Loans": as defined in Section 2.9.
"Register": as defined in Section 10.6(e).
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit.
"Reinvestment Deferred Amount": with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by the Borrower or any of its
Subsidiaries in connection therewith that are not applied to prepay the Term
Loans or reduce the Total Tranche B-1 Credit Linked Deposit Amount pursuant to
Section 2.13(b) as a result of the delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale or Recovery Event resulting in
the receipt of Net Cash Proceeds by the Borrower or a Subsidiary in respect of
which the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a Responsible
Officer stating that no Event of Default has occurred and is continuing and that
the Borrower (directly or indirectly through a Subsidiary) intends and expects
to use all or a specified portion of the Net Cash Proceeds of an Asset Sale or
Recovery Event to acquire assets useful in its business. The Borrower may
deliver a Reinvestment Notice quarterly after the end of each applicable fiscal
quarter with the compliance certificate delivered pursuant to Section 6.2(b)
rather than at the time of receipt of the related Net Cash Proceeds.
"Reinvestment Prepayment Amount": with respect to any Reinvestment
Event, the Reinvestment Deferred Amount relating thereto less any amount
expended prior to the relevant Reinvestment Prepayment Date to acquire assets
useful in the Borrower's business.
23
"Reinvestment Prepayment Date": with respect to any Reinvestment
Event, the earlier of (a) the date occurring 12 months after such Reinvestment
Event and (b) the date on which the Borrower shall have determined not to
acquire assets useful in the Borrower's business with all or any portion of the
relevant Reinvestment Deferred Amount.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg.
Section 4043.
"Required Lenders": at any time, the holders (other than Defaulting
Lenders) of more than 50% of (a) until the Closing Date, the Commitments
(excluding Commitments of Defaulting Lenders) then in effect and (b) thereafter,
the sum of (i) the aggregate unpaid principal amount of the Term Loans
(excluding Term Loans held by Defaulting Lenders) then outstanding, (ii) the
Total Revolving Commitments (excluding Revolving Commitments of Defaulting
Lenders) then in effect or, if the Revolving Commitments have been terminated,
the Total Revolving Extensions of Credit (excluding Revolving Extensions of
Credit held by Defaulting Lenders) then outstanding and (iii) the Total Tranche
B-1 Credit Linked Deposit Amount (excluding the Tranche B-1 Credit Linked
Deposit Amounts of Defaulting Lenders) then in effect or, if the Total Tranche
B-1 Credit Linked Deposit Amount has been terminated, the Total Tranche B-1
Extensions of Credit (excluding Tranche B-1 Extensions of Credit held by
Defaulting Lenders) then outstanding thereunder.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer": the chief executive officer, president or chief
financial officer of the Borrower or any other applicable Loan Party, but in any
event, with respect to financial matters, the chief financial officer, Treasurer
and Controller of the Borrower or such Loan Party, as the case may be.
"Restricted Payments": as defined in Section 7.6.
"Revolving Commitment": as to any Lender, the obligation of such
Lender, if any, to make Revolving Loans and participate in Swingline Loans and
Letters of Credit in an aggregate principal and/or face amount not to exceed the
amount set forth under the heading "Revolving Commitment" opposite such Lender's
name on Schedule 1.1A or in the Assignment and Acceptance pursuant to which such
Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof. The initial amount of the Total Revolving
Commitments is $550,000,000.
"Revolving Commitment Period": the period from and including the
Closing Date to the Revolving Termination Date.
24
"Revolving Extensions of Credit": as to any Revolving Lender at any
time, an amount equal to the sum of (a) the aggregate principal amount of all
Revolving Loans held by such Lender then outstanding, (b) such Lender's
Revolving Percentage of the L/C Obligations then outstanding under the Revolving
Facility and (c) such Lender's Revolving Percentage of the aggregate principal
amount of Swingline Loans then outstanding.
"Revolving Lender": each Lender that has a Revolving Commitment or
that holds Revolving Loans.
"Revolving Letters of Credit": Letters of Credit issued and deemed to
be issued under the Revolving Facility.
"Revolving Loans": as defined in Section 2.6(a).
"Revolving Percentage": as to any Revolving Lender at any time, the
percentage which such Lender's Revolving Commitment then constitutes of the
Total Revolving Commitments (or, at any time after the Revolving Commitments
shall have expired or terminated, the percentage which the aggregate principal
amount of such Lender's Revolving Loans then outstanding constitutes of the
aggregate principal amount of the Revolving Loans then outstanding).
"Revolving Termination Date": the date which is earlier to occur of
(a) the fifth anniversary of the Closing Date and (b) the date on which the
Revolving Commitments are terminated.
"S&P": as defined in the definition of "Cash Equivalents".
"SEC": the Securities and Exchange Commission, any successor thereto
and any analogous Governmental Authority.
"Second Lien Note Holders": holders of the Second Lien Notes from time
to time.
"Second Lien Note Indenture": the Indenture dated as of June 19, 2003,
entered into by the Borrower and certain of its Subsidiaries and the trustee
named therein in connection with the issuance of the Second Lien Notes, together
with all instruments and other agreements entered into by the Borrower or such
Subsidiaries in connection therewith, as the same may be amended, supplemented
or otherwise modified from time to time in a manner that is not prohibited by
Section 7.15. Upon the issuance of any Permitted Refinancing Indebtedness in
respect of any Second Lien Notes, the indenture or similar agreement pursuant to
which such Permitted Refinancing Indebtedness is issued shall be deemed to be a
Second Lien Note Indenture (in addition to any other indenture or similar
agreement for Second Lien Notes then outstanding); provided, however, that (1)
the provisions of Section 4.22 shall apply to such indenture or similar
agreement pursuant to which such Permitted Refinancing Indebtedness is issued
only if such indenture or agreement (or any agreement ancillary thereto) is
secured by any assets of the Borrower or its Subsidiaries, and (2) the
provisions of Section 7.9(c) shall not apply to such indenture or similar
agreement pursuant to which such Permitted Refinancing Indebtedness is issued.
25
"Second Lien Notes": the Borrower's 10 1/4% Senior Secured Notes due
June 2013 issued in one or more series pursuant to the Second Lien Note
Indenture. Upon the issuance of any Permitted Refinancing Indebtedness in
respect of such Second Lien Notes, such Permitted Refinancing Indebtedness shall
be deemed to be Second Lien Notes (in addition to any other Second Lien Notes
that are then outstanding).
"Second Priority Claims": as defined in the Intercreditor Agreement.
"Second Priority Collateral Documents": as defined in the
Intercreditor Agreement.
"Security Documents": the collective reference to the Guarantee and
Collateral Agreement, the Mortgages and all other security documents hereafter
delivered to the Administrative Agent granting a Lien on any property of any
Person to secure the obligations and liabilities of any Loan Party under any
Loan Document.
"Senior Secured Leverage Ratio": as of the last day of any period, the
ratio of (x) the sum of all outstanding Indebtedness under this Agreement, the
Second Lien Notes and Capital Lease Obligations as of such day to (y)
Consolidated EBITDA for such period. Notwithstanding the foregoing, in the event
that the Borrower or a Subsidiary has entered into an operating lease in
connection with a Permitted Sale/Leaseback then for purposes of calculating the
Senior Secured Leverage Ratio on any day, the amount described in clause (x)
shall be deemed to be increased by the remaining unamortized principal component
of such operating lease (as determined based on the applicable schedule setting
forth the components of lease payments delivered pursuant to Section 7.11).
"Senior Subordinated Note Indenture": the Indenture dated as of
November 19, 2004 by the Borrower and certain of its Subsidiaries and the
trustee named therein pursuant to which the Senior Subordinated Notes were
issued, together with all instruments and other agreements entered into by the
Borrower or such Subsidiaries in connection therewith, as the same may be
amended, supplemented or otherwise modified from time to time in a manner that
is not prohibited by Section 7.9. Upon the issuance of any Permitted Refinancing
Indebtedness in respect of any Senior Subordinated Notes, the indenture or
similar agreement pursuant to which such Permitted Refinancing Indebtedness is
issued shall be deemed to be a Senior Subordinated Note Indenture (in addition
to any other indenture or similar agreement for Senior Subordinated Notes then
outstanding); provided, however (1) the provisions of Section 7.9(c) shall apply
to such indenture or similar agreement pursuant to which such Permitted
Refinancing Indebtedness is issued only if such indenture or agreement includes
a provision regarding "Designated Senior Debt" similar to that included in the
Indenture, dated as of October 14, 1999 between the Borrower and The Bank of New
York, as trustee (the "1999 Indenture"), and (2) the provisions of Section 4.21
shall apply to such indenture or similar agreement pursuant to which such
Permitted Refinancing Indebtedness is issued only if such indenture or agreement
includes a provision regarding the designation of "Senior Debt" of the Borrower
or "Guarantor Senior Debt" of any Subsidiary Guarantor, as applicable, similar
to those included in the 1999 Indenture.
"Senior Subordinated Notes": the Borrower's 8 5/8% Senior Subordinated
Notes due November 2014 issued pursuant to the Senior Subordinated Note
Indenture. Upon the
26
issuance of any Permitted Refinancing Indebtedness in respect of any Senior
Subordinated Notes, such Permitted Refinancing Indebtedness shall be deemed to
be Senior Subordinated Notes (in addition to any other Senior Subordinated Notes
that are then outstanding).
"Single Employer Plan": any Plan that is covered by Title IV of ERISA,
but that is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means that, as of any
date of determination, (a) the amount of the "present fair saleable value" of
the assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise", as of such date, as such
quoted terms are determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the liability of such Person on its
debts as such debts become absolute and matured, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, and (d) such Person will be able to pay its debts as they mature.
For purposes of this definition, (i) "debt" means liability on a "claim," and
(ii) "claim" means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y)
right to an equitable remedy for breach of performance if such breach gives rise
to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured or unmatured, disputed,
undisputed, secured or unsecured.
"SPC": as defined in Section 10.6(d).
"Specified Change of Control": a "Change of Control" (however
denominated) as defined in the Senior Subordinated Note Indenture or the Second
Lien Note Indenture or in any other instrument or agreement evidencing or
creating Indebtedness with an aggregate principal amount of $75,000,000 or more.
"Stub Debt": debentures of the Borrower and its Subsidiaries issued
and outstanding on the date hereof and described in the financial statements of
the Borrower referred to in Section 4.1.
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified (i)
all references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall
refer to a Subsidiary or Subsidiaries of the Borrower and (ii) each Finance
Subsidiary shall be deemed not to be a Subsidiary of the Borrower.
"Subsidiary Guarantor": each Subsidiary of the Borrower other than any
Excluded Subsidiary.
27
"Swingline Commitment": the obligation of the Swingline Lender to make
Swingline Loans pursuant to Section 2.8 in an aggregate principal amount at any
one time outstanding not to exceed $50,000,000.
"Swingline Lender": JPMCB, in its capacity as the lender of Swingline
Loans.
"Swingline Loans": as defined in Section 2.8.
"Swingline Participation Amount": as defined in Section 2.9.
"Syndication Agent": as defined in the preamble hereto.
"Term Lenders": the Tranche A Term Lenders.
"Term Loans": the Tranche A Term Loans.
"Total Revolving Commitments": at any time, the aggregate amount of
the Revolving Commitments then in effect. The Total Revolving Commitments may be
increased or reduced from time to time pursuant to Sections 2.6(c) and 2.11(a),
respectively.
"Total Revolving Extensions of Credit": at any time, the aggregate
amount of the Revolving Extensions of Credit of the Revolving Lenders
outstanding at such time.
"Total Tranche B-1 Credit Linked Deposit Amount": at any time, the sum
of all the Tranche B-1 Credit Linked Deposit Amounts at such time. The initial
amount of the Total Tranche B-1 Credit Linked Deposit Amount is $130,000,000.
"Total Tranche B-1 Extensions of Credit": at any time, the aggregate
amount of the Tranche B-1 Extensions of Credit of the Tranche B-1 Lenders at
such time.
"Tranche A Final Maturity Date": the date which is the fifth
anniversary of the Closing Date.
"Tranche A Term Lender": each Lender that holds a Tranche A Term Loan.
"Tranche A Term Loan": as defined in Section 2.1(a). The initial
aggregate amount of the Tranche A Term Loans is $150,000,000, and on the Closing
Date, each Tranche A Term Lender will hold a Tranche A Term Loan in an amount
equal to the amount set forth opposite its name on Schedule 1.1A, or as may
subsequently be set forth in the Register from time to time, as the same may be
adjusted from time to time pursuant to this Agreement.
"Tranche A Term Percentage": as to any Tranche A Term Lender at any
time, the percentage which the aggregate principal amount of such Lender's
Tranche A Term Loan then outstanding constitutes of the aggregate principal
amount of all of the Tranche A Term Loans then outstanding.
"Tranche B-1 ABR Conversion Period": any period beginning on the last
day of the then current Interest Period for Tranche B-1 Loans following any date
on which a Tranche B-1
28
ABR Conversion Notice is delivered to the Borrower and ending on first day of
the calendar month following the date that such notice is withdrawn or an Event
of Default no longer exists.
"Tranche B-1 ABR Conversion Notice": a notice delivered by the
Administrative Agent, acting at the request of the Majority Facility Lenders in
respect of the Tranche B-1 Facility, during the continuation of an Event of
Default stating that the Tranche B-1 Loans shall become ABR Loans on the last
day of the then current Interest Period for Tranche B-1 Loans.
"Tranche B-1 Actual Return Rate": as defined in Section 2.4(h).
"Tranche B-1 Borrowing": the making of any Tranche B-1 Loan or the
issuance of any Tranche B-1 Letter of Credit.
"Tranche B-1 Credit Linked Account": with respect to each Tranche B-1
Lender, the account established by the Administrative Agent at JPMCB in the name
of such Tranche B-1 Lender pursuant to Section 2.4(a).
"Tranche B-1 Credit Linked Deposit": with respect to each Tranche B-1
Lender at any time, amounts actually on deposit in its Tranche B-1 Credit Linked
Account at such time.
"Tranche B-1 Credit Linked Deposit Amount": with respect to each
Tranche B-1 Lender, an amount equal to the amount set forth opposite its name on
Schedule 1.1A, or as may subsequently be set forth in the Register from time to
time, as the same may be adjusted from time to time pursuant to this Agreement.
For the avoidance of doubt, the Tranche B-1 Credit Linked Deposit Amount of each
Tranche B-1 Lender shall not be adjusted by the making of any Tranche B-1 Loans
or reimbursement of drawings under Tranche B-1 Letters of Credit as a result of
the withdrawal of any amounts then on deposit in such Tranche B-1 Lender's
Tranche B-1 Credit Linked Account.
"Tranche B-1 Deposit Return Date": the date that the Tranche B-1
Credit Linked Accounts are closed pursuant to Section 2.4(c)(vi).
"Tranche B-1 Eurodollar Rate": as defined in Section 2.4(h).
"Tranche B-1 Extensions of Credit": as to any Tranche B-1 Lender at
any time, an amount equal to the sum of (a) the aggregate principal amount of
all Tranche B-1 Loans held by such Lender then outstanding and (b) such Lender's
Tranche B-1 Percentage of the L/C Obligations then outstanding under the Tranche
B-1 Facility.
"Tranche B-1 Final Maturity Date": the date which is the seventh
anniversary of the Closing Date or, if applicable, the Early Maturity Date.
"Tranche B-1 Fixed Return Rate": as defined as set forth in Section
2.4(h).
"Tranche B-1 Lender": any financial institution or other investor that
has a corresponding Tranche B-1 Credit Linked Deposit Amount hereunder.
29
"Tranche B-1 Letter of Credit": Letters of Credit issued and deemed to
be issued under the Tranche B-1 Facility.
"Tranche B-1 Letter of Credit Outstandings": at any time, the sum of
(i) the aggregate undrawn stated amount of all Tranche B-1 Letters of Credit
issued and then outstanding plus (ii) all outstanding Reimbursement Obligations
under Tranche B-1 Letters of Credit, in each case at such time.
"Tranche B-1 Loan": as defined as set forth in Section 2.5(a). Tranche
B-1 Loans may be ABR Loans to the extent provided in Section 2.4(f) and may bear
interest at the Eurodollar Rate as provided herein.
"Tranche B-1 Outstanding Exposure": at any time, the then outstanding
aggregate principal amount of the Tranche B-1 Loans plus the then Tranche B-1
Letter of Credit Outstandings.
"Tranche B-1 Percentage": as to any Tranche B-1 Lender at any time
that (a) any Tranche B-1 Extensions of Credit are outstanding, the percentage
which the aggregate principal amount of such Lender's Tranche B-1 Extensions of
Credit then outstanding constitute of the aggregate principal amount of all of
the Tranche B-1 Extensions of Credit then outstanding or (b) no Tranche B-1
Extensions of Credit are outstanding, the percentage which such Lender's Tranche
B-1 Credit Linked Deposit Amount constitutes of the Total Tranche B-1 Credit
Linked Deposit Amount.
"Tranche B-1 Settlement Date": the earliest to occur of (i) the
Tranche B-1 Final Maturity Date, (ii) the Early Maturity Date and (iii) the date
of an acceleration of payment of all Obligations relating to the Tranche B-1
Facility pursuant to Section 8.
"Transaction": the entering into, and creating security interests in
Collateral under, the Loan Documents and the use of the proceeds of the Loans in
connection with the amendment and restatement of the Existing Credit Agreement
pursuant hereto.
"Transferee": any Assignee or Participant.
"Type": as to any Loan, its nature as an ABR Loan or a Eurodollar
Loan.
"United States": the United States of America.
"Wholly Owned Subsidiary": as to any Person, any other Person all of
the Capital Stock of which (other than directors' qualifying shares required by
law) is owned by such Person directly and/or through other Wholly Owned
Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor that is
a Wholly Owned Subsidiary of the Borrower.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the other Loan Documents or any certificate or other document made
or delivered pursuant hereto or thereto.
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(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto, (i)
accounting terms relating to the Borrower and its Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP, (ii)
the words "include," "includes" and "including" shall be deemed to be followed
by the phrase "without limitation," (iii) the word "incur" shall be construed to
mean incur, create, issue, assume, become liable in respect of or suffer to
exist (and the words "incurred" and "incurrence" shall have correlative
meanings), and (iv) the words "asset" and "property" shall be construed to have
the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, Capital Stock, securities, revenues,
accounts, leasehold interests and contract rights.
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Tranche A Term Commitments. Subject to the terms and conditions
hereof, each Tranche A Term Lender severally agrees to make a term loan (a
"Tranche A Term Loan") to the Borrower on the Closing Date in the amount set
forth under the heading "Tranche A Term Loan" opposite such Tranche A Term
Lender's name on Schedule 1.1A. The Tranche A Term Loans may from time to time
be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to
the Administrative Agent in accordance with Sections 2.2 and 2.14. The Tranche A
Term Loans constitute obligations outstanding under the Existing Credit
Agreement, as amended, restated, reallocated and redesignated pursuant hereto.
2.2 Procedure for Tranche A Term Loan Borrowing. The Borrower shall
give the Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to 12:00 Noon, New York City time, one
Business Day prior to the anticipated Closing Date in the case of ABR Loans or
three Business Days prior to the anticipated Closing Date in the case of
Eurodollar Loans) requesting that the Tranche A Term Lenders make the Tranche A
Term Loans on the Closing Date.
2.3 Repayment of Tranche A Term Loans. The Tranche A Term Loan of each
Tranche A Term Lender shall be payable in 12 consecutive quarterly installments,
commencing June 30, 2009, each of which shall be in an amount equal to such
Lender's Tranche A Term Percentage multiplied by the amount set forth below
opposite each installment:
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Installment Amount
----------- -----------
June 30, 2009 $ 5,625,000
September 30, 2009 $ 5,625,000
December 31, 2009 $ 5,625,000
March 31, 2010 $ 5,625,000
June 30, 2010 $15,000,000
September 30, 2010 $15,000,000
December 31, 2010 $15,000,000
March 31, 2011 $15,000,000
June 30, 2011 $16,875,000
September 30, 2011 $16,875,000
December 31, 2011 $16,875,000
Tranche A Final Maturity Date $16,875,000
2.4 Tranche B-1 Credit Linked Accounts. (a) Establishment of Tranche
B-1 Credit Linked Accounts. On or prior to the Closing Date, the Administrative
Agent shall establish a Tranche B-1 Credit Linked Account at JPMCB in the name
of each Tranche B-1 Lender. The Administrative Agent shall establish additional
Tranche B-1 Credit Linked Accounts at JPMCB (subject to Section 9.9) at such
times and in the names of such assignee Tranche B-1 Lenders as shall be required
pursuant to Section 10.6(c). Amounts on deposit in each Tranche B-1 Credit
Linked Account shall be invested, or caused to be invested, by the
Administrative Agent as set forth in subsection (d) below, and no Person (other
than the Administrative Agent or any of its sub-agents) shall have the right to
make any withdrawals from any Tranche B-1 Credit Linked Account or exercise any
other right or power with respect thereto, except as expressly provided in
subsection (c) below or Section 9.9 or 10.6(c). Without limiting the generality
of the foregoing, each party hereto acknowledges and agrees that no amount on
deposit at any time in any Tranche B-1 Credit Linked Account shall be the
property of any Loan Party, shall constitute "Collateral" under the Loan
Documents, or shall otherwise be available in any manner to satisfy any
Obligation of any Loan Party under the Loan Documents. The sole funding
obligation of each Tranche B-1 Lender in respect of the Tranche B-1 Facility
shall be satisfied upon the funding of its Tranche B-1 Credit Linked Deposit
Amount. Deposits in Tranche B-1 Credit Linked Accounts. The following amounts
will be deposited in each Tranche B-1 Credit Linked Account at the following
times:
(i) on the Closing Date, each Tranche B-1 Lender shall deposit in its
Tranche B-1 Credit Linked Account an amount in Dollars equal to such
Tranche B-1 Lender's Tranche B-1 Credit Linked Deposit Amount. All funding
obligations with respect to any
32
Tranche B-1 Loan and all obligations to repay the Issuing Lender with
respect to any draw paid by it under any Tranche B-1 Letter of Credit and
not reimbursed by the Borrower, in the case of each Tranche B-1 Lender,
shall be satisfied upon such Tranche B-1 Lender's making such deposit in
its Tranche B-1 Credit Linked Account;
(ii) on any date on which the Administrative Agent receives any
payment for the account of any Tranche B-1 Lender with respect to the
principal amount of any of its Tranche B-1 Loans (whether pursuant to
Section 2.11, 2.12 or 2.13 or Section 8 or otherwise) prior to the Tranche
B-1 Deposit Return Date, the Administrative Agent shall deposit such amount
in the Tranche B-1 Credit Linked Account of such Tranche B-1 Lender;
(iii) on any date on which the Administrative Agent or the Issuing
Lender receives any reimbursement payment from the Borrower with respect to
amounts withdrawn from any Tranche B-1 Credit Linked Account to reimburse
any Issuing Lender with respect to any payment made by it under any Tranche
B-1 Letter of Credit prior to the Tranche B-1 Deposit Return Date, the
Administrative Agent or the Issuing Lender shall deposit in each Tranche
B-1 Credit Linked Account the portion of such reimbursement payment to be
deposited therein, in accordance with Section 3.4(a); and
(iv) concurrently with the effectiveness of any assignment by any
Tranche B-1 Lender of all or any portion of its Tranche B-1 Credit Linked
Deposit Amount, the Administrative Agent shall transfer into the Tranche
B-1 Credit Linked Account of the assignee Tranche B-1 Lender the
corresponding portion of the amount on deposit in the assignor's Tranche
B-1 Credit Linked Account, in accordance with Section 10.6(c).
(c) Withdrawals from and Closing of Tranche B-1 Credit Linked
Accounts. Amounts on deposit in each Tranche B-1 Credit Linked Account shall be
withdrawn and distributed (or transferred, in the case of clause (iv) below) as
follows:
(i) on the date of any Tranche B-1 Borrowing of Tranche B-1 Loans,
subject to satisfaction of the conditions applicable thereto set forth in
Section 5, the Administrative Agent shall withdraw from each Tranche B-1
Credit Linked Account an amount equal to the relevant Tranche B-1 Lender's
Tranche B-1 Percentage of such Tranche B-1 Borrowing, and make such amount
available to the Borrower, as contemplated by Section 2.5(b) and in
accordance with Section 2.7;
(ii) on any date on which any Issuing Lender is to be reimbursed by
the Tranche B-1 Lenders for any payment made by such Issuing Lender with
respect to a Tranche B-1 Letter of Credit, the Administrative Agent shall
withdraw from each Tranche B-1 Credit Linked Account an amount equal to the
relevant Tranche B-1 Lender's Tranche B-1 Percentage of such unreimbursed
payment, and make such amount available to the Issuing Lender, in
accordance with Section 3.4(a) and the amount so withdrawn shall be deemed
to be a Tranche B-1 Loan made on such date;
(iii) concurrently with each optional or mandatory reduction or
termination of the Total Tranche B-1 Credit Linked Deposit Amount pursuant
to Section 2.11, 2.12 or
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2.13, as the case may be, the Administrative Agent shall withdraw from each
Tranche B-1 Credit Linked Account, and pay to the relevant Tranche B-1
Lender, an amount equal to such Tranche B-1 Lender's Tranche B-1 Percentage
of the amount of the optional or mandatory reduction of the Total Tranche
B-1 Credit Linked Deposit Amount, in accordance with the applicable
Section;
(iv) concurrently with the effectiveness of any assignment by any
Tranche B-1 Lender of all or any portion of its Tranche B-1 Credit Linked
Deposit Amount, the corresponding portion of the amount on deposit in the
assignor's Tranche B-1 Credit Linked Account shall be transferred from the
assignor's Tranche B-1 Credit Linked Account to the assignee's Tranche B-1
Credit Linked Account, in accordance with Section 10.6(c) and, if required
by Section 10.6(c), the Administrative Agent shall close such assignor's
Tranche B-1 Credit Linked Account;
(v) promptly following the occurrence of a Tranche B-1 Settlement
Date, the Administrative Agent shall withdraw from each Tranche B-1 Credit
Linked Account an amount equal to the applicable Tranche B-1 Lender's
Tranche B-1 Percentage of the amount by which aggregate amounts then on
deposit in the Tranche B-1 Credit Linked Accounts exceed the Tranche B-1
Letter of Credit Outstandings and pay such amount to such Tranche B-1
Lender; and
(vi) upon the reduction of the Total Tranche B-1 Credit Linked Deposit
Amount to $0 and the expiration or cancellation of all outstanding Tranche
B-1 Letters of Credit, the Administrative Agent shall withdraw from each
Tranche B-1 Credit Linked Account, and pay to the relevant Tranche B-1
Lender, the aggregate amount then on deposit therein, and shall close each
such Tranche B-1 Credit Linked Account.
The Tranche B-1 Loans and the Tranche B-1 Letters of Credit outstanding on
the Closing Date constitute obligations outstanding under the Existing Credit
Agreement, as amended, restated, reallocated and redesignated pursuant hereto.
(d) Investment of Amounts in Tranche B-1 Credit Linked Accounts. The
Administrative Agent shall invest, or cause to be invested, the amount on
deposit in the Tranche B-1 Credit Linked Account of each Tranche B-1 Lender so
as to earn for the account of such Tranche B-1 Lender a return thereon on each
day at a rate per annum equal to (i) the one month LIBOR rate as determined by
the Administrative Agent on such day (or if such day was not a Business Day, the
first Business Day immediately preceding such day) based on rates for deposits
in Dollars (as set forth by Bloomberg L.P.-page BTMM or any other comparable
publicly available service as may be selected by the Administrative Agent) (the
"Benchmark LIBOR Rate") minus (ii) 0.10% (based on a 365 or 366 day year, as the
case may be). The Benchmark LIBOR Rate will be reset on each Business Day. Such
return will be paid by the Administrative Agent to each Tranche B-1 Lender for
any calendar month (or portion thereof) monthly in arrears on the first Business
Day of the following calendar month and the Early Maturity Date or the Tranche
B-1 Final Maturity Date, as applicable, as well as the Tranche B-1 Deposit
Return Date. No Loan Party shall have any obligation under or in respect of the
provisions of this Section 2.4(d).
34
(e) Tranche B-1 Fixed Return Rate Fee. The Borrower shall pay a fee to
the Administrative Agent, for the account of each Tranche B-1 Lender, monthly in
arrears for each calendar month (or portion thereof), an amount equal to the
excess of (i) the Tranche B-1 Fixed Return Rate over (ii) the Tranche B-1 Actual
Return Rate, in each case with respect to such Tranche B-1 Lender for such
calendar month (or portion thereof) (but only if such amount constituting the
difference between the amounts provided for in items (i) and (ii) above is
greater than $0). Each such amount for any calendar month (or portion thereof)
will be paid by the Borrower to the Administrative Agent, for the account of
each Tranche B-1 Lender, on the third Business Day of the following calendar
month, on the Tranche B-1 Settlement Date and on the Tranche B-1 Deposit Return
Date. Notwithstanding anything to the contrary in this Agreement (except as set
forth below in the last sentence of this paragraph (e)), the sum (the "Accrued
Interest and Fees") of (i) the aggregate amount of interest payments due to such
Tranche B-1 Lender by the Borrower pursuant to Section 2.16(b), (c) and (d) and
(ii) the aggregate amount of letter of credit fees due to such Tranche B-1
Lender by the Borrower pursuant to Section 3.3(a), in each case with respect to
such monthly period (or portion thereof), shall not exceed the excess (the
"Actual Fee Amount") of (A) the Tranche B-1 Fixed Return Rate for such monthly
period (or portion thereof) with respect to such Tranche B-1 Lender over (B) the
aggregate amount of return due to such Tranche B-1 Lender from the
Administrative Agent pursuant to Section 2.4(d) for such monthly period (or
portion thereof), and to the extent the Accrued Interest and Fees exceeds the
Actual Fee Amount, the aggregate amount of such interest and letter of credit
fees shall be deemed to have been reduced ratably. The limitation and reduction
set forth in the preceding sentence shall not apply to the extent that the
Accrued Interest and Fees with respect to such monthly period (or portion
thereof) that are due to any Tranche B-1 Lender exceeds the Actual Fee Amount of
such Tranche B-1 Lender as a result of interest accrued and due to such Tranche
B-1 Lender pursuant to Section 2.16(b) as a result of the conversion of Tranche
B-1 Loans to ABR Loans during a Tranche B-1 ABR Conversion Period and/or Section
2.16(d).
(f) Tranche B-1 Loans During Tranche B-1 ABR Conversion Period.
Notwithstanding any other provisions of this Agreement, Tranche B-1 Loans shall
be deemed to be ABR Loans during any Tranche B-1 ABR Conversion Period. Interest
on such ABR Loans shall be payable on the Interest Payment Dates described in
clause (e) of the definition thereof.
(g) Sub-agents. The Administrative Agent may perform any and all its
duties and exercise its rights and powers contemplated by this Section 2.4 by or
through one or more sub-agents appointed by it (which may include any of its
Affiliates), and any such sub-agent shall be entitled to the benefit of all the
provisions of Article 9 of this Agreement (including Section 9.7). The parties
hereto acknowledge that on or prior to the Closing Date the Administrative Agent
has engaged JPMorgan Chase Institutional Services to act as its sub-agent for
purposes of this Section 2.4, and that in such capacity JPMorgan Chase
Institutional Services shall be entitled to the benefit of all the provisions of
Article 9 of this Agreement (including Section 9.7).
(h) Definitions. For purposes of this Section 2.4 (or in the case of
any other provision of this Agreement that refers to any of the following
terms), the following defined terms shall have the following meanings:
"Tranche B-1 Actual Return Rate": for any calendar month (or portion
thereof) referred to in subsection (e) above with respect to which the Tranche
B-1 Actual Return Rate is
35
determined, with respect to any Tranche B-1 Lender, an amount equal to (i) the
aggregate amount of return due to such Tranche B-1 Lender from the
Administrative Agent pursuant to Section 2.4(d) plus (ii) the aggregate amount
of interest payments received by such Tranche B-1 Lender from the Borrower
pursuant to Section 2.16 plus (iii) the aggregate amount of letter of credit
fees received by such Tranche B-1 Lender from the Borrower pursuant to Section
3.3(a), in each case with respect to such calendar month (or portion thereof).
"Tranche B-1 Eurodollar Rate": for any calendar month (or portion
thereof) referred to in subsection (e) above with respect to which the Tranche
B-1 Eurodollar Rate is determined, the Eurodollar Rate for an Interest Period of
one month (or for the period beginning on the Closing Date to April 1, 2007, for
an Interest Period of two weeks) commencing on the first day of such calendar
month (or the Closing Date, as applicable) as determined by the Administrative
Agent.
"Tranche B-1 Fixed Return Rate": for any calendar month (or portion
thereof) referred to in subsection (e) above with respect to which the Tranche
B-1 Fixed Return Rate is determined, with respect to any Tranche B-1 Lender, an
amount equal to the interest that would have accrued on the Tranche B-1 Credit
Linked Deposit Amount (irrespective of the amount then on deposit in such
Tranche B-1 Lender's Tranche B-1 Credit Linked Account) of such Tranche B-1
Lender during such monthly period (or portion thereof) if such interest were
calculated at a rate per annum equal to (i) the Tranche B-1 Eurodollar Rate plus
(ii) a rate per annum equal to the Applicable Margin for Tranche B-1 Loans (on
the basis of the actual number of days elapsed over a year of 360 days).
(i) Losses. Notwithstanding anything to the contrary in this
Agreement, the Borrower shall not be liable for any losses due to or
misappropriation of any (i) return due to the Administrative Agent's failure to
achieve the return thereon pursuant to Section 2.4(d) or to pay all or any
portion of such return to any Tranche B-1 Lender or (ii) Tranche B-1 Deposit (it
being understood and agreed for greater certainty that this provision shall not
limit any obligation of the Borrower hereunder to repay any Tranche B-1 Loan).
2.5 Making of Tranche B-1 Loans. (a) Upon the terms and subject to the
conditions herein set forth (including the provisions of Section 5), each
Tranche B-1 Lender, severally and not jointly with the other Tranche B-1
Lenders, agrees to make loans (each a "Tranche B-1 Loan" and collectively, the
"Tranche B-1 Loans") to the Borrower at any time and from time to time during
the period commencing on the date hereof and ending on the Tranche B-1 Final
Maturity Date; provided that, after giving effect to any such Tranche B-1 Loan
(i) the aggregate outstanding principal amount of Tranche B-1 Loans of such
Tranche B-1 Lender plus such Tranche B-1 Lender's Tranche B-1 Percentage of the
Tranche B-1 Letter of Credit Outstandings does not exceed such Tranche B-1
Lender's Tranche B-1 Credit Linked Deposit Amount, and (ii) the Tranche B-1
Outstanding Exposure does not exceed the Total Tranche B-1 Credit Linked Deposit
Amount. Tranche B-1 Loans made pursuant to this subsection (a) or deemed to have
been made pursuant to Section 2.4(c)(ii) may be repaid and reborrowed in
accordance with the provisions of this Agreement.
36
(b) Each Tranche B-1 Loan shall be funded by the Tranche B-1 Lenders
pro rata in accordance with their respective Tranche B-1 Percentages, solely
from amounts on deposit in their respective Tranche B-1 Credit Linked Accounts.
(c) The Borrower shall repay all outstanding Tranche B-1 Loans on the
Tranche B-1 Final Maturity Date.
2.6 Revolving Commitments. (a) Subject to the terms and conditions
hereof, each Revolving Lender severally agrees to make revolving credit loans
("Revolving Loans") to the Borrower from time to time at the Borrower's request
during the Revolving Commitment Period in an aggregate principal amount at any
one time outstanding which, when added to such Lender's Revolving Percentage of
the sum of (i) the L/C Obligations with respect to Revolving Letters of Credit
then outstanding and (ii) the aggregate principal amount of the Swingline Loans
then outstanding does not exceed the amount of such Lender's Revolving
Commitment. During the Revolving Commitment Period the Borrower may use the
Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in
part, and reborrowing, all in accordance with the terms and conditions hereof.
The Revolving Loans may from time to time be Eurodollar Loans or ABR Loans, as
determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.7 and/or 2.14.
(b) The Borrower shall repay all outstanding Revolving Loans on the
Revolving Termination Date.
(c) The Borrower may, from time to time, elect to accept an increase
in the Revolving Commitments after the Closing Date; and the Revolving
Commitments shall be so increased; provided, however, that in no event shall the
aggregate amount of the Revolving Commitments exceed $600,000,000. No increase
in the Revolving Commitments shall become effective until (i) the existing or
new Revolving Lender (which, if not an existing Revolving Lender, shall be
reasonably satisfactory to the Administrative Agent and the Issuing Lender)
extending such incremental commitment amount and the Borrower shall have
executed and delivered to the Administrative Agent an agreement in form and
substance reasonably acceptable to the Administrative Agent pursuant to which
such Revolving Lender states its commitment amount in respect thereof and agrees
to assume and accept the obligations and rights of a Revolving Lender hereunder
and (ii) the Borrower has provided the Administrative Agent with such related
Notes and certificates as the Administrative Agent may reasonably request. In
conjunction with such increase, the Revolving Lenders (new or existing) shall
accept and shall be deemed to have accepted (and the existing Revolving Lenders
shall make and shall be deemed to have made) an assignment at par of an interest
in the Revolving Loans and the Revolving Letters of Credit outstanding at the
time of such increase in Revolving Commitments such that, after giving effect
thereto, all Revolving Loans and Revolving Letters of Credit are held by the
Revolving Lenders on a pro-rata basis. Appropriate adjustments shall be made in
payments of interest, commitment fees, letters of credit commissions and similar
amounts to reflect the dates of any such increases in Revolving Commitments and
extensions of credit thereunder and corresponding re-allocations among the
Revolving Lenders. No Lender shall be required to provide any such increase in
the Revolving Commitments unless it agrees to do so. Notwithstanding anything to
the contrary in Section 10.1, this Agreement and the other Loan Documents may be
amended from time to time with the written consent of only the Majority
37
Facility Lenders (including the new Revolving Lenders) in respect of the
Revolving Facility, the Issuing Lender, the Administrative Agent and the
Borrower to the extent necessary to implement the provisions of this paragraph
(including to reflect such increased Revolving Commitments and the initial
funding thereof).
2.7 Procedure for Revolving Loan Borrowing and Tranche B-1 Loan
Borrowing. The Borrower may borrow under the Revolving Commitments during the
Revolving Commitment Period on any Business Day prior to the Revolving
Termination Date and may borrow Tranche B-1 Loans pursuant to Section 2.5 on any
Business Day prior to the earlier to occur of (i) the Tranche B-1 Settlement
Date and (ii) the Tranche B-1 Deposit Return Date, provided that the Borrower
shall give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent (a) prior to 12:00 Noon, New York City
time, three Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, or (b) prior to 12:00 Noon, New York City time, on the
requested Borrowing Date, in the case of ABR Loans and Tranche B-1 Loans),
specifying (i) the amount and, in the case of Revolving Loans, the Type of Loans
to be borrowed, (ii) whether such Loans are to be Revolving Loans or Tranche B-1
Loans, (iii) the requested Borrowing Date and (iv) in the case of Eurodollar
Loans, the respective amounts of such Type of Loan and the respective lengths of
the initial Interest Period therefor. Each such borrowing shall be in an amount
equal to (x) in the case of ABR Loans and Tranche B-1 Loans, $1,000,000 or a
whole multiple thereof in the case of ABR Loans or a whole multiple of $100,000
in the case of Tranche B-1 Loans (or, if the then aggregate Available Revolving
Commitments or if the aggregate amount on deposit in the Tranche B-1 Credit
Linked Accounts, as the case may be, is less than $1,000,000, such lesser
amount) and (y) in the case of Eurodollar Loans, $5,000,000 or a whole multiple
of $1,000,000 in excess thereof; provided, that the Swingline Lender and the
Issuing Lender may request, on behalf of the Borrower, borrowings under the
Revolving Commitments that are ABR Loans in other amounts pursuant to Section
2.9 and clause (ii) of the proviso of Section 3.5, respectively. Upon receipt of
any such notice of borrowing under the Revolving Facility from the Borrower, the
Administrative Agent shall promptly notify each Lender under the Revolving
Facility thereof. In the case of a borrowing under the Revolving Facility, each
Revolving Lender will make the amount of its Revolving Percentage of each
borrowing available to the Administrative Agent for the account of the Borrower
at the Funding Office prior to 2:00 p.m., New York City time, on the Borrowing
Date requested by the Borrower or requested by the Swingline Lender or an
Issuing Lender on behalf of the Borrower as contemplated by the second preceding
sentence in funds immediately available to the Administrative Agent. In the case
of a borrowing under the Tranche B-1 Facility, each Tranche B-1 Lender hereby
irrevocably authorizes the Administrative Agent to make available to the
Borrower an amount on deposit in such Tranche B-1 Lender's Tranche B-1 Credit
Linked Account equal to such Tranche B-1 Lender's Tranche B-1 Percentage of such
Tranche B-1 Loan borrowing (it being understood that the funding obligations of
each Tranche B-1 Lender with respect to such borrowing shall be required to be
satisfied solely by making such amount available in its Tranche B-1 Credit
Linked Account, and the Borrower shall have no other recourse against such
Tranche B-1 Lender with respect to the satisfaction of such funding obligation).
Such borrowing will then be made available to the Borrower by the Administrative
Agent crediting the account of the Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the
Revolving Lenders and in like funds as received by the Administrative Agent or,
if applicable, made available from the Tranche B-1 Credit Linked Accounts and in
like funds as made available.
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2.8 Swingline Commitment. (a) Subject to the terms and conditions
hereof, the Swingline Lender agrees to make a portion of the credit otherwise
available to the Borrower under the Revolving Commitments from time to time
during the Revolving Commitment Period by making swing line loans ("Swingline
Loans") to the Borrower; provided that (i) the aggregate principal amount of
Swingline Loans outstanding at any time shall not exceed the Swingline
Commitment then in effect (notwithstanding that the Swingline Loans outstanding
at any time, when aggregated with the Swingline Lender's other outstanding
Revolving Loans hereunder, may exceed the Swingline Commitment then in effect)
and (ii) the Borrower shall not request, and the Swingline Lender shall not
make, any Swingline Loan if, after giving effect to the making of such Swingline
Loan, the aggregate amount of the Available Revolving Commitments would be less
than zero. During the Revolving Commitment Period, the Borrower may use the
Swingline Commitment by borrowing, repaying and reborrowing, all in accordance
with the terms and conditions hereof. Swingline Loans shall be ABR Loans only.
(b) The Borrower shall repay all outstanding Swingline Loans on the
Revolving Termination Date.
2.9 Procedure for Swingline Borrowing; Refunding of Swingline Loans.
(a)Whenever the Borrower desires that the Swingline Lender make Swingline Loans
it shall give the Swingline Lender irrevocable telephonic notice confirmed
promptly in writing (which telephonic notice must be received by the Swingline
Lender not later than 1:00 p.m., New York City time, on the proposed Borrowing
Date), specifying (i) the amount to be borrowed and (ii) the requested Borrowing
Date (which shall be a Business Day during the Revolving Commitment Period).
Each borrowing under the Swingline Commitment shall be in an amount equal to
$100,000 or a whole multiple of $100,000 in excess thereof. Not later than 3:00
p.m., New York City time, on the Borrowing Date specified in a notice in respect
of Swingline Loans, the Swingline Lender shall make available to the
Administrative Agent at the Funding Office an amount in immediately available
funds equal to the amount of the Swingline Loan to be made by the Swingline
Lender. The Administrative Agent shall make the proceeds of such Swingline Loan
available to the Borrower on such Borrowing Date by depositing such proceeds in
the account of the Borrower with the Administrative Agent on such Borrowing Date
in immediately available funds.
(b) The Swingline Lender, at any time and from time to time in its
sole and absolute discretion may, on behalf of the Borrower (which hereby
irrevocably directs the Swingline Lender to act on its behalf), on one Business
Day's notice given by the Swingline Lender no later than 12:00 Noon, New York
City time, request each Revolving Lender to make, and each Revolving Lender
hereby agrees to make, a Revolving Loan, in an amount equal to such Revolving
Lender's Revolving Percentage of the aggregate amount of the Swingline Loans
(the "Refunded Swingline Loans") outstanding on the date of such notice, to
repay the Swingline Lender. Each Revolving Lender shall make the amount of such
Revolving Loan available to the Administrative Agent at the Funding Office in
immediately available funds, not later than 10:00 a.m., New York City time, one
Business Day after the date of such notice. The proceeds of such Revolving Loans
shall be immediately made available by the Administrative Agent to the Swingline
Lender for application by the Swingline Lender to the repayment of the Refunded
Swingline Loans. The Borrower irrevocably authorizes the Swingline Lender to
charge the Borrower's accounts with the Administrative Agent (up to the amount
available in each such account) in order to immediately pay the amount of such
Refunded Swingline Loans to the extent
39
amounts received from the Revolving Lenders are not sufficient to repay in full
such Refunded Swingline Loans.
(c) If prior to the time a Revolving Loan would have otherwise been
made pursuant to Section 2.9(b), one of the events described in Section 8(f)
shall have occurred and be continuing with respect to the Borrower or if for any
other reason, as determined by the Swingline Lender in its sole discretion,
Revolving Loans may not be made as contemplated by Section 2.9(b), each
Revolving Lender shall, on the date such Revolving Loan was to have been made
pursuant to the notice referred to in Section 2.9(b), purchase for cash an
undivided participating interest in the then outstanding Swingline Loans by
paying to the Swingline Lender an amount (the "Swingline Participation Amount")
equal to (i) such Revolving Lender's Revolving Percentage times (ii) the sum of
the aggregate principal amount of Swingline Loans then outstanding that were to
have been repaid with such Revolving Loans.
(d) Whenever, at any time after the Swingline Lender has received from
any Revolving Lender such Lender's Swingline Participation Amount, the Swingline
Lender receives any payment on account of the Swingline Loans, the Swingline
Lender will distribute to such Lender its Swingline Participation Amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Lender's participating interest was outstanding and
funded and, in the case of principal and interest payments, to reflect such
Lender's pro rata portion of such payment if such payment is not sufficient to
pay the principal of and interest on all Swingline Loans then due); provided,
however, that in the event that such payment received by the Swingline Lender is
required to be returned, such Revolving Lender will return to the Swingline
Lender any portion thereof previously distributed to it by the Swingline Lender.
(e) Each Revolving Lender's obligation to make the Loans referred to
in Section 2.9(b) and to purchase participating interests pursuant to Section
2.9(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including (i) any setoff, counterclaim, recoupment, defense or
other right that such Revolving Lender or the Borrower may have against the
Swingline Lender, the Borrower or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of a Default or an Event of Default or the
failure to satisfy any of the other conditions specified in Section 5; (iii) any
adverse change in the condition (financial or otherwise) of the Borrower; (iv)
any breach of this Agreement or any other Loan Document by the Borrower, any
other Loan Party or any other Revolving Lender; or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
2.10 Commitment Fees, etc. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Lender a commitment fee
for the period from and including the Closing Date to the last day of the
Revolving Commitment Period, computed at the Commitment Fee Rate on the average
daily Available Revolving Commitment of such Lender during the period for which
payment is made, payable quarterly in arrears on the second Business Day of each
January, April, July and October and on the Revolving Termination Date,
commencing on the first of such dates to occur after the Closing Date.
(b) The Borrower agrees to pay to the Administrative Agent the fees in
the amounts and on the dates previously agreed to in writing by the Borrower and
the Administrative Agent.
40
2.11 Termination or Reduction of Revolving Commitments and Total
Tranche B-1 Credit Linked Deposit Amount. (a) The Borrower shall have the right,
upon not less than three Business Days' notice to the Administrative Agent, to
terminate the Revolving Commitments or, from time to time, to reduce the amount
of the Revolving Commitments; provided that no such termination or reduction of
Revolving Commitments shall be permitted if, after giving effect thereto and to
any prepayments of the Revolving Loans and Swingline Loans made on the effective
date thereof, the Total Revolving Extensions of Credit would exceed the Total
Revolving Commitments. Any such partial reduction shall be in an amount equal to
$1,000,000, or a whole multiple thereof, and shall reduce permanently (subject
to subsequent increase pursuant to Section 2.6(c)) the Revolving Commitments
then in effect.
(b) The Borrower may at any time or from time to time direct the
Administrative Agent to reduce the Total Tranche B-1 Credit Linked Deposit
Amount; provided that each partial reduction of the Total Tranche B-1 Credit
Linked Deposit Amount shall be in an amount that is an integral multiple of
$1,000,000 and not less than $5,000,000; provided, further, that no such
reduction shall be permitted if, after giving effect to such reduction, the
aggregate Tranche B-1 Extensions of Credit would exceed the Total Tranche B-1
Credit Linked Deposit Amount. In the event the Total Tranche B-1 Credit Linked
Deposit Amount shall be reduced as provided in the preceding sentence, the
Administrative Agent will return all amounts in the Tranche B-1 Credit Linked
Deposit Accounts in excess of the reduced Total Tranche B-1 Credit Linked
Deposit Amount to the Tranche B-1 Lenders, ratably in accordance with their
Tranche B-1 Percentages.
2.12 Optional Prepayments. The Borrower may at any time and from time
to time prepay the Loans, in whole or in part, without premium or penalty
(except as set forth below), upon irrevocable notice delivered to the
Administrative Agent at least three Business Days prior thereto in the case of
Eurodollar Loans and on the same Business Day in the case of ABR Loans and
Tranche B-1 Loans, which notice shall specify the date and amount of prepayment
and whether the prepayment is of Eurodollar Loans, ABR Loans or Tranche B-1
Loans; provided, that if a Eurodollar Loan is prepaid on any day other than the
last day of the Interest Period applicable thereto, the Borrower shall also pay
any amounts owing pursuant to Section 2.22. Upon receipt of any such notice in
respect of Eurodollar Loans or ABR Loans the Administrative Agent shall promptly
notify each relevant Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein,
together with (except in the case of Revolving Loans, ABR Loans, Tranche B-1
Loans and Swingline Loans) accrued interest to such date on the amount prepaid.
Partial prepayments of Tranche A Term Loans, Tranche B Term Loans and Revolving
Loans shall be in an aggregate principal amount of $1,000,000 or a whole
multiple thereof, and partial prepayments of Tranche B-1 Loans shall be in an
aggregate amount of $100,000 or a whole multiple thereof. Partial prepayments of
Swingline Loans shall be in an aggregate principal amount of $100,000 or a whole
multiple thereof. Any optional prepayments of the Term Loans shall be applied to
the remaining installments thereof in the direct order of maturity.
2.13 Mandatory Prepayments and Total Tranche B-1 Credit Linked Deposit
Amount Reductions. (a) If any Indebtedness shall be incurred by the Borrower or
any of its Subsidiaries after the Closing Date (excluding (i) the proceeds of a
Permitted Receivables Financing, (ii) permitted Indebtedness issued to refinance
the Senior Subordinated Notes or the
41
Second Lien Notes to the extent permitted by Sections 7.9 and 7.15,
respectively, and (iii) any other permitted Indebtedness incurred in accordance
with Section 7.2), an amount equal to the Applicable Prepayment Percentage of
the Net Cash Proceeds thereof shall be applied on the date of such issuance or
incurrence first, toward the prepayment of the Term Loans and second, to the
permanent reduction of the Total Tranche B-1 Credit Linked Deposit Amount as set
forth in Section 2.13(d).
(b) If on any date the Borrower or any of its Subsidiaries shall
receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a
Reinvestment Notice shall be delivered in respect thereof (or will be delivered
concurrently with the next compliance certificate to be delivered pursuant to
Section 6.2(b)), the Applicable Prepayment Percentage of such Net Cash Proceeds
shall be applied on such date toward first, the prepayment of the Term Loans and
second, the permanent reduction of the Total Tranche B-1 Credit Linked Deposit
Amount as set forth in Section 2.13(d); provided, that, notwithstanding the
foregoing, on each Reinvestment Prepayment Date, an amount equal to the
Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event
shall be applied toward first, the prepayment of the Term Loans and second, the
permanent reduction of the Total Tranche B-1 Credit Linked Deposit Amount as set
forth in Section 2.13(d).
(c) If, for any fiscal year of the Borrower commencing with the fiscal
year ending December 31, 2008, there shall be Excess Cash Flow, the Borrower
shall, on the relevant Excess Cash Flow Application Date, apply the Applicable
Prepayment Percentage of such Excess Cash Flow toward first, the prepayment of
the Term Loans and second, the permanent reduction of the Total Tranche B-1
Credit Linked Deposit Amount as set forth in Section 2.13(d). Each such
prepayment shall be made on a date (an "Excess Cash Flow Application Date") no
later than 10 Business Days after the earlier of (i) the date on which the
financial statements of the Borrower referred to in Section 6.1(a), for the
fiscal year with respect to which such prepayment is made, are required to be
delivered to the Lenders and (ii) the date such financial statements are
actually delivered.
(d) The application of any prepayment pursuant to Section 2.13 shall
be made first to the Term Loans until the Term Loans are paid in full and second
to the permanent reduction of the Total Tranche B-1 Credit Linked Deposit
Amount. Partial prepayments of the Term Loans pursuant to Section 2.13 shall be
applied to the remaining installments thereof in the direct order of maturity.
Any such reduction of the Total Tranche B-1 Credit Linked Deposit Amount shall
be accompanied by first, the prepayment of the Tranche B-1 Loans to the extent,
if any, that the Total Tranche B-1 Extensions of Credit exceed the amount of the
Total Tranche B-1 Credit Linked Deposit Amount as so reduced, provided that if
the aggregate principal amount of Tranche B-1 Loans then outstanding (after
giving effect to Section 3.1(d)) is less than the amount of such excess (because
L/C Obligations in respect of Tranche B-1 Letters of Credit constitute a portion
thereof), the Borrower shall, to the extent of the balance of such excess,
replace outstanding Tranche B-1 Letters of Credit and/or deposit an amount in
cash in a cash collateral account established with the Administrative Agent for
the benefit of the Tranche B-1 Lenders on terms and conditions satisfactory to
the Administrative Agent. The application of any prepayment of Term Loans
pursuant to Section 2.13 shall be made, first, to ABR Loans and second, to
Eurodollar Loans. Each prepayment of the Loans under Section 2.13, other than
ABR Loans, shall be accompanied by accrued interest to the date of such
prepayment on the amount prepaid. In the event the Total
42
Tranche B-1 Credit Linked Deposit Amount shall be reduced as provided above, the
Administrative Agent will return to the Tranche B-1 Lenders funds on deposit in
the Tranche B-1 Credit Linked Deposit Accounts in an aggregate amount equal to
the sum of (w) the aggregate stated amounts of all Tranche B-1 Letters of Credit
replaced as provided above in connection with such reduction, (x) the aggregate
stated amount of all Tranche B-1 Letters of Credit cash collateralized as
provided above in connection with such reduction, (y) the aggregate amount of
Tranche B-1 Loans repaid by the Borrower in connection with such reduction and
(z) the amount by which the Total Tranche B-1 Credit Linked Amount exceeded the
Tranche B-1 Extensions of Credit immediately before such reduction, to be
distributed to them ratably in accordance with their Tranche B-1 Percentages.
(e) Upon the occurrence of the Early Maturity Date, the Tranche B-1
Loans hereunder (with accrued interest thereon) and all other amounts arising
under this Agreement and the other Loan Documents in respect of the Tranche B-1
Facility (including all amounts of L/C Obligations in respect of Tranche B-1
Letters of Credit, whether or not the beneficiary of the then outstanding
Tranche B-1 Letters of Credit shall have presented the documents required
thereunder) shall immediately become due and payable, the Tranche B-1 Lenders
shall have no further obligation to make Loans, issue Tranche B-1 Letters of
Credit or otherwise extend credit hereunder and the Borrower shall deposit cash
collateral with the Administrative Agent with respect to the Tranche B-1 Letters
of Credit with respect to which presentation for drawing shall not have then
occurred in a cash collateral account established at the Administrative Agent
for the benefit of the Tranche B-1 Lenders on terms and conditions satisfactory
to the Administrative Agent.
2.14 Conversion and Continuation Options. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert ABR Loans to Eurodollar Loans by giving
the Administrative Agent at least three Business Days' prior irrevocable notice
of such election (which notice shall specify the length of the initial Interest
Period therefor), provided that no ABR Loan under a particular Facility may be
converted into a Eurodollar Loan when any Event of Default has occurred and is
continuing and the Administrative Agent or the Majority Facility Lenders in
respect of such Facility have determined in its or their sole discretion not to
permit such conversions. Upon receipt of any such notice the Administrative
Agent shall promptly notify each relevant Lender thereof.
(b) Any Eurodollar Loan which is a Term Loan shall be continued as
such upon the expiration of the then current Interest Period with respect
thereto unless the Borrower gives irrevocable notice to the Administrative
Agent, in accordance with the applicable provisions of the term "Interest
Period" set forth in Section 1.1, of a different length of the next Interest
Period to be applicable to such Loans or elects to convert such Loan to an ABR
Loan, provided that no Eurodollar Loan under a particular Facility may be
continued as such when any Event of Default has occurred and is continuing and
the Administrative Agent has or the Majority Facility Lenders in respect of such
Facility have determined in its or their sole discretion not to permit such
continuations, and provided, further, that if such continuation is not permitted
pursuant to the preceding proviso such Loans shall be automatically converted to
ABR Loans on the last day of
43
such then expiring Interest Period. Any Eurodollar Loan which is a Revolving
Loan may be continued as such upon the expiration of the then current Interest
Period with respect thereto by the Borrower giving irrevocable notice to the
Administrative Agent, in accordance with the applicable provisions of the term
"Interest Period" set forth in Section 1.1, of the length of the next Interest
Period to be applicable to such Loans, provided that no Eurodollar Loan under a
particular Facility may be continued as such when any Event of Default has
occurred and is continuing and the Administrative Agent has or the Majority
Facility Lenders in respect of such Facility have determined in its or their
sole discretion not to permit such continuations, and provided, further, that if
the Borrower shall fail to give any required notice as described above in this
paragraph or if such continuation is not permitted pursuant to the preceding
proviso such Loans shall be automatically converted to ABR Loans on the last day
of such then expiring Interest Period. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof.
2.15 Limitations on Eurodollar Tranches. Notwithstanding anything to
the contrary in this Agreement, all borrowings, conversions and continuations of
Eurodollar Loans hereunder and all selections of Interest Periods hereunder
shall be in such amounts and be made pursuant to such elections so that, (a)
after giving effect thereto, the aggregate principal amount of the Eurodollar
Loans comprising each Eurodollar Tranche shall be equal to $5,000,000 or a whole
multiple of $1,000,000 in excess thereof and (b) no more than twenty (20)
Eurodollar Tranches shall be outstanding at any one time.
2.16 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to the
ABR plus the Applicable Margin.
(c) Each Tranche B-1 Loan shall bear interest for each day during any
month in which such Tranche B-1 Loan is outstanding at a rate per annum equal to
the Tranche B-1 Eurodollar Rate in effect for such month plus the Applicable
Margin, subject to Section 2.4(f).
(d) (i) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amounts shall bear
interest at a rate per annum equal to (x) in the case of overdue amounts in
respect of any Loan, the rate that would otherwise be applicable thereto
pursuant to the foregoing provisions of this Section plus 2% or (y) in the case
of overdue amounts in respect of any Reimbursement Obligation, the rate
applicable to ABR Loans under the Revolving Facility plus 2%, and (ii) if all or
a portion of any interest payable on any Loan or Reimbursement Obligation or any
commitment fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum equal to the rate then applicable
to ABR Loans under the relevant Facility plus 2% (or, in the case of any such
other amounts that do not relate to a particular Facility, the rate then
applicable to ABR Loans under the Revolving Facility plus 2%), in each case,
with respect to clauses (i) and (ii) above, from the date of such non-payment
until such amount is paid in full (as well after as before judgment).
44
(e) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (d) of this Section
shall be payable from time to time on demand.
2.17 Computation of Interest and Fees. (a) Subject to Section 2.4,
interest and fees payable pursuant hereto shall be calculated on the basis of a
360-day year for the actual days elapsed, except that, with respect to ABR Loans
the rate of interest on which is calculated on the basis of the Prime Rate, the
interest thereon shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Borrower and the relevant Lenders of
each determination of a Eurodollar Rate. Any change in the interest rate on a
Loan resulting from a change in the ABR shall become effective as of the opening
of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the
relevant Lenders of the effective date and the amount of each such change in
interest rate.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.16(a).
2.18 Inability to Determine Interest Rate. If prior to (i) the first
day of any Interest Period or (ii) the determination of the Benchmark LIBOR Rate
(as defined in Section 2.4(d)) on any day:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by reason
of circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for such Interest Period, the
Tranche B-1 Eurodollar Rate for such Interest Period or the Benchmark LIBOR Rate
for such day, or
(b) the Administrative Agent shall have received notice from the
Majority Facility Lenders in respect of the relevant Facility that the
Eurodollar Rate or Tranche B-1 Eurodollar Rate determined or to be determined
for such Interest Period will not adequately and fairly reflect the cost to such
Lenders (as conclusively certified by such Lenders) of making or maintaining
their affected Loans during such Interest Period or their respective Tranche B-1
Credit Linked Deposits for such day,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (w) any Eurodollar Loans under the relevant Facility requested
to be made on the first day of such Interest Period shall be made as ABR Loans,
(x) any Loans under the relevant Facility that were to have been converted on
the first day of such Interest Period to Eurodollar Loans shall be continued as
ABR Loans, (y) any outstanding Eurodollar Loans under the relevant Facility
shall be converted, on the last day of the then-current Interest Period, to ABR
Loans and (z) the Tranche B-1 Credit Linked Deposits shall be invested so as to
earn a return and the term "Eurodollar Rate" as used with respect to any Tranche
B-1 Loan or the determination of Tranche B-1 Eurodollar Rate shall, in each
case, be
45
equal to 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. Until such notice has been withdrawn by the
Administrative Agent (and the Administrative Agent agrees to promptly withdraw
such notice after it becomes aware (by receipt of notice or otherwise) that the
circumstances described in clause (a) or (b) above cease to exist), no further
Eurodollar Loans under the relevant Facility shall be made or continued as such,
nor shall the Borrower have the right to convert Loans under the relevant
Facility to Eurodollar Loans.
2.19 Pro Rata Treatment and Payments. (a) Each borrowing by the
Borrower from the Lenders hereunder, each payment by the Borrower on account of
any commitment fee and any reduction of the Revolving Commitments or the Total
Tranche B-1 Credit Linked Deposit Amount shall be made pro rata according to the
respective Revolving Percentages or Tranche B-1 Percentages, as the case may be,
of the relevant Lenders.
(b) Each payment (including each prepayment) by the Borrower on
account of principal of and interest and premium, if any, on the Tranche A Term
Loans shall be made pro rata according to the respective outstanding principal
amounts of the Tranche A Term Loans then held by the Tranche A Term Lenders. The
amount of each principal prepayment of the Tranche A Term Loans shall be applied
to reduce the then remaining installments of the Tranche A Term Loans in the
direct order of maturity. Amounts prepaid on account of the Term Loans may not
be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Revolving Loans shall be made pro
rata according to the respective outstanding principal amounts of the Revolving
Loans then held by the Revolving Lenders. Each payment (including each
prepayment) by the Borrower on account of principal of and interest and premium,
if any, on the Tranche B-1 Loans shall be made pro rata according to the
respective outstanding principal amounts of the Tranche B-1 Loans then held by
the Tranche B-1 Lenders.
(d) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and shall be made prior to 12:00 Noon,
New York City time, on the due date thereof to the Administrative Agent, for the
account of the Lenders, at the Funding Office, in Dollars and in immediately
available funds. Subject to Section 2.4, the Administrative Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder (other than payments on the Eurodollar Loans)
becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day. If any payment on a Eurodollar
Loan becomes due and payable on a day other than a Business Day, the maturity
thereof shall be extended to the next succeeding Business Day unless the result
of such extension would be to extend such payment into another calendar month,
in which event such payment shall be made on the immediately preceding Business
Day. In the case of any extension of any payment of principal pursuant to the
preceding two sentences, interest thereon shall be payable at the then
applicable rate during such extension.
(e) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may
46
assume that such Lender is making such amount available to the Administrative
Agent, and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. If such amount is not made
available to the Administrative Agent by the required time on the Borrowing Date
therefor, such Lender shall pay to the Administrative Agent, on demand, such
amount with interest thereon at a rate equal to the daily average Federal Funds
Effective Rate for the period until such Lender makes such amount immediately
available to the Administrative Agent. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this paragraph
shall be conclusive in the absence of manifest error. If such Lender's share of
such borrowing is not made available to the Administrative Agent by such Lender
within three Business Days of such Borrowing Date, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at the rate
per annum applicable to ABR Loans under the relevant Facility, on demand, from
the Borrower.
(f) Unless the Administrative Agent shall have been notified in
writing by the Borrower prior to the date of any payment being made hereunder
that the Borrower will not make such payment to the Administrative Agent, the
Administrative Agent may assume that the Borrower is making such payment, and
the Administrative Agent may, but shall not be required to, in reliance upon
such assumption, make available to the Lenders their respective pro rata shares
of a corresponding amount. If such payment is not made to the Administrative
Agent by the Borrower within three Business Days of such required date, the
Administrative Agent shall be entitled to recover, on demand, from each Lender
to which any amount which was made available pursuant to the preceding sentence,
such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate. Nothing herein shall be deemed to limit
the rights of the Administrative Agent or any Lender against the Borrower.
2.20 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority made subsequent to
the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any Application or any
Eurodollar Loan or Tranche B-1 Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by Section 2.21 and changes in the rate of tax
on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or issuing or maintaining any Tranche B-1 Credit Linked
Deposit or to reduce any amount receivable hereunder in respect thereof, then,
in
47
any such case, the Borrower shall promptly pay such Lender, upon its demand and
delivery of the calculation of such amount, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable. If
any Lender becomes entitled to claim any additional amounts pursuant to this
paragraph, it shall promptly notify the Borrower (with a copy to the
Administrative Agent) of the event by reason of which it has become so entitled
together with a calculation of such amount claimed.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the Borrower (with a copy to the Administrative
Agent) of a written request therefor, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such reduction;
provided that the Borrower shall not be required to compensate a Lender pursuant
to this paragraph for any amounts incurred more than three months prior to the
date that such Lender notifies the Borrower of such Lender's intention to claim
compensation therefor; and provided further that, if the circumstances giving
rise to such claim have a retroactive effect, then such three-month period shall
be extended to include the period of such retroactive effect.
(c) A certificate as to any additional amounts payable pursuant to
this Section submitted by any Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
obligations of the Borrower pursuant to this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.21 Taxes. (a) All payments made by the Borrower under this Agreement
shall be made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority, excluding
income taxes and franchise taxes (imposed on the overall net income of the
recipient) imposed on the Administrative Agent or any Lender as a result of a
present or former connection between the Administrative Agent or such Lender 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 Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") or Other Taxes are required to be withheld
from any amounts payable to the Administrative Agent or any Lender hereunder,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative
48
Agent or such Lender (after payment of all Non-Excluded Taxes and Other Taxes)
interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement, provided, however, that the Borrower shall
not be required to increase any such amounts payable to any Lender with respect
to any Non-Excluded Taxes (i) that are attributable to such Lender's failure to
comply with the requirements of paragraph (d) or (e) of this Section or (ii)
that are United States withholding taxes imposed on amounts payable to such
Lender at the time the Lender becomes a party to this Agreement, except to the
extent that such Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower with respect to such
Non-Excluded Taxes pursuant to this paragraph.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the
Borrower, as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for its own account or for the account of the relevant
Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the Borrower fails to pay
any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts or
other required documentary evidence, the Borrower shall indemnify the
Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure.
(d) Each Lender (or Transferee) that is not a citizen or resident of
the United States of America, a corporation, partnership or other entity created
or organized in or under the laws of the United States of America (or any
jurisdiction thereof), or any estate or trust that is subject to federal income
taxation regardless of the source of its income (a "Non-U.S. Lender") shall
deliver to the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) two copies of either U.S. Internal Revenue Service Form W-8BEN or
W-8ECI, or, in the case of a Non-U.S. 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 G and a Form W-8BEN, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments by the Borrower under this Agreement and the other Loan Documents.
Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant, on or
before the date such Participant purchases the related participation). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this paragraph, a Non-U.S. Lender shall not be required to
deliver any form pursuant to this paragraph that such Non-U.S. Lender is not
legally able to deliver.
49
(e) A Lender that is entitled to an exemption from or reduction of
non-U.S. withholding tax under the law of the jurisdiction in which the Borrower
is located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate, provided that such Lender is
legally entitled to complete, execute and deliver such documentation and in such
Lender's judgment such completion, execution or submission would not materially
prejudice the legal position of such Lender.
(f) The agreements in this Section shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.22 Indemnity. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense that such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment of or conversion
from Eurodollar Loans after the Borrower has given a notice thereof in
accordance with the provisions of this Agreement, (c) the making of a prepayment
of Eurodollar Loans on a day that is not the last day of an Interest Period with
respect thereto, (d) the return of all or any portion of a Tranche B-1 Credit
Linked Deposit to such Lender on a day other than the last day of an Interest
Period for which the applicable Tranche B-1 Eurodollar Rate has been established
or (e) following the occurrence of the Tranche B-1 Settlement Date or, if
earlier, the Tranche B-1 Deposit Return Date, the making of a repayment of any
Tranche B-1 Loan on a day that is not the last day of an Interest Period with
respect to such Tranche B-1 Loan. Such indemnification may include an amount
equal to the excess, if any, of (i) the amount of interest that would have
accrued on the amount so prepaid or returned, or not so borrowed, converted or
continued, for the period from the date of such prepayment or return or of such
failure to borrow, convert or continue to the last day of such Interest Period
(or, in the case of a failure to borrow, convert or continue, the Interest
Period that would have commenced on the date of such failure) in each case at
the applicable rate of interest for such Loans provided for herein (excluding,
however, the Applicable Margin included therein, if any) over (ii) the amount of
interest (as reasonably determined by such Lender) that would have accrued to
such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank eurodollar market. A certificate as
to any amounts payable pursuant to this Section submitted to the Borrower by any
Lender shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
2.23 Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.20 or 2.21(a)
with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this
50
Section shall affect or postpone any of the obligations of any Borrower or the
rights of any Lender pursuant to Section 2.20 or 2.21(a).
2.24 Replacement of Lenders. The Borrower shall be permitted to
replace any Lender that (a) requests reimbursement for amounts owing pursuant to
Section 2.20 or 2.21(a) in amounts disproportionate to the amounts requested by
the other Lenders under such Sections or (b) defaults in its obligation to make
Loans hereunder or to fund a Tranche B-1 Credit Linked Deposit hereunder, with a
replacement financial institution; provided that (i) such replacement does not
conflict with any Requirement of Law, (ii) no Event of Default shall have
occurred and be continuing at the time of such replacement, (iii) prior to any
such replacement, such Lender shall have taken no action under Section 2.23 so
as to eliminate the continued need for payment of amounts owing pursuant to
Section 2.20 or 2.21(a), (iv) the replacement financial institution shall
purchase, at par, all Loans and other amounts owing to such replaced Lender on
or prior to the date of replacement (and, if applicable, make its Tranche B-1
Credit Linked Deposit), (v) the Borrower shall be liable to such replaced Lender
under Section 2.22 for any losses suffered or expenses incurred by such Lender
if any Eurodollar Loan owing to such replaced Lender shall be purchased other
than on the last day of the Interest Period relating thereto or if any Tranche
B-1 Credit Linked Deposit is transferred by such Lender on a day other than the
last day of any Interest Period for which the applicable Tranche B-1 Eurodollar
Rate has been established, (vi) the replacement financial institution, if not
already a Lender, shall be reasonably satisfactory to the Administrative Agent,
(vii) the replaced Lender shall be obligated to make such replacement in
accordance with the provisions of Section 10.6 (provided that the Borrower shall
be obligated to pay the registration and processing fee referred to therein),
(viii) until such time as such replacement shall be consummated, the Borrower
shall pay all additional amounts (if any) required pursuant to Section 2.20 or
2.21(a), as the case may be, and (ix) any such replacement shall not be deemed
to be a waiver of any rights that the Borrower, the Administrative Agent or any
other Lender shall have against the replaced Lender.
2.25 Intercreditor Agreement. The Lenders (a) acknowledge and agree to
the terms of the Intercreditor Agreement, (b) authorize the Administrative Agent
to perform the Intercreditor Agreement on their behalf and to take any action
thereunder as determined by it to be necessary or advisable to protect the
interest of the holders of First Priority Claims (as defined in the
Intercreditor Agreement) and (c) acknowledge that certain items of the
Collateral will from time to time be made subject to a Lien to secure the Second
Lien Notes and certain related obligations, subject to the terms of the
Intercreditor Agreement.
2.26 Redesignation of Existing Loans and Commitments. As of the
Closing Date, the Existing Loans and Revolving Commitments (as defined in the
Existing Credit Agreement) immediately prior to the Closing Date shall
automatically, without any action on the part of any Person, be redesignated for
all purposes of this Agreement and the other Loan Documents as follows: (a)
$550,000,000 of Revolving Commitments; (b) $130,000,000 of Tranche B-1 Credit
Linked Deposit Amounts; and (c) $150,000,000 principal amount of Tranche A Term
Loans, and for the avoidance of doubt, the parties hereto acknowledge that the
Loans outstanding hereunder on the Closing Date were not made in repayment of
all or any portion of any Existing Loan. The Administrative Agent shall modify
the Register accordingly to provide for such redesignation of the Existing Loans
and Revolving Commitments (as defined in the Existing Credit Agreement) among
the Lenders according to their proportionate share thereof, as
51
applicable. Each Exiting Lender shall be deemed, by its acceptance of any such
payment, to have assigned and sold its Commitments and Loans under the Existing
Credit Agreement to the Lenders in exchange for payment on the Closing Date of
obligations owed to it under the Existing Credit Agreement.
2.27 Incremental Loan Extensions. The Borrower may at any time or from
time to time after the Closing Date, by notice to the Administrative Agent
(whereupon the Administrative Agent shall promptly deliver a copy to each of the
Lenders), request an increase to the Tranche B-1 Facility or request the
addition of one or more incremental term loan facilities (each, an "Incremental
Facility") in an aggregate amount of up to $275,000,000; provided that (i) no
Lender will be required to participate in any such Incremental Facility, (ii) no
Event of Default or Default exists or would exist after giving effect thereto,
(iii) on a pro forma basis for the most recent determination period (as if such
Incremental Facility became effective on the first day of such determination
period), after giving effect to such Incremental Facility and the use of
proceeds thereof, the Senior Secured Leverage Ratio is less than 2.5 to 1.0,
(iv) the final maturity date of any such Incremental Facility shall be no
earlier than the Tranche B-1 Final Maturity Date, and the weighted average life
of any such Incremental Facility shall not be less than the remaining average
life of the Tranche B-1 Facility, (v) loans under an Incremental Facility may be
priced differently from the Tranche B-1 Facility, provided that if the
applicable margin (which, for such purposes only, shall be deemed to include all
upfront or similar fees or original issue discount payable to all Lenders
providing such Incremental Facility) exceeds the Applicable Margin for the
Tranche B-1 Facility immediately prior to the funding of such Incremental
Facility by more than 0.25%, the Applicable Margin for the Tranche B-1 Term
Facility shall be adjusted to equal the applicable margin for such Incremental
Facility (which, for such purposes only, shall be deemed to include all upfront
or similar fees or original issue discount payable to all Lenders providing such
Incremental Facility) minus 0.25%, (vi) any Incremental Facility shall be on
terms and pursuant to documentation to be agreed upon by the Borrower and the
Administrative Agent, provided that, any Financial Covenant or Default in any
Incremental Facility shall be consistent with that set forth in Section 7.1 and
Section 8 of this Agreement, and provided further that, to the extent such terms
and documentation are not consistent in any material respect with those
applicable to the Tranche B-1 Loans (except to the extent permitted by clause
(iv) or (v) above), they shall be reasonably satisfactory to the Administrative
Agent and (vii) the Net Cash Proceeds of any such Incremental Facility shall be
used to redeem or purchase the Second Lien Notes or to finance acquisitions
permitted by Section 7.8(j) or 7.8(k). In connection with any Incremental
Facility, the Borrower shall provide the Administrative Agent with such related
Notes, certificates and opinions as the Administrative Agent may reasonably
request. Appropriate adjustments shall be made in the payments of interest to
reflect the funding date of such Incremental Facility. Notwithstanding anything
to the contrary in Section 10.1, this Agreement and the other Loan Documents may
be amended from time to time with the consent of only the Administrative Agent
and the Borrower to the extent necessary to implement the provisions of this
Section (including to reflect each Incremental Facility and the funding
thereof). Each Incremental Facility shall be entitled to share in the Collateral
and guarantees on a pari passu basis with the other Facilities and shall be
entitled to share in mandatory prepayments on a basis comparable with the
Tranche A Term Facility or the Tranche B-1 Facility, as determined by the
Borrower and the Administrative Agent.
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SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitments. (a) Subject to the terms and conditions hereof,
the Issuing Lender, in reliance on the agreements of the Revolving Lenders and
the Tranche B-1 Lenders set forth in this Section 3, agrees to issue letters of
credit ("Letters of Credit") for the account of the Borrower on any Business Day
in such form as may be approved from time to time by the Issuing Lender;
provided that the Issuing Lender shall have no obligation to issue any (i)
Revolving Letter of Credit if, after giving effect to such issuance, (A) the
aggregate amount of the Available Revolving Commitments would be less than zero
or (B) the aggregate undrawn amount of outstanding Letters of Credit and unpaid
Reimbursement Obligations under the Revolving Facility would exceed $100,000,000
or (ii) Tranche B-1 Letter of Credit if, after giving effect thereto (A) the
aggregate outstanding principal amount of Tranche B-1 Loans of such Tranche B-1
Lender plus such Tranche B-1 Lender's Percentage of the Tranche B-1 Letter of
Credit Outstandings would exceed such Tranche B-1 Lender's Tranche B-1 Credit
Linked Deposit Amount, or (B) the Tranche B-1 Outstanding Exposure would exceed
the Total Tranche B-1 Credit Linked Deposit Amount. Each Letter of Credit shall
(i) be denominated in Dollars and (ii) expire no later than the earlier of (x)
the first anniversary of its date of issuance and (y) the date that is five
Business Days prior to (A) in the case of Revolving Letters of Credit, the
Revolving Termination Date and (B) in the case of Tranche B-1 Letters of Credit,
the Tranche B-1 Final Maturity Date, provided that any Letter of Credit with a
one-year term may provide for the renewal thereof for additional one-year
periods (which shall in no event extend beyond the applicable date referred to
in clause (y) above).
(b) The Issuing Lender shall not at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause the
Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
(c) On the Closing Date, the Existing Letters of Credit will
automatically, without any action on the part of any Person, be deemed to be
Letters of Credit issued hereunder on the Closing Date for the account of the
Borrower for all purposes of this Agreement and the other Loan Documents.
(d) Notwithstanding anything to the contrary in this Agreement, unless
the Administrative Agent agrees to a different treatment, (i) Letters of Credit
shall at all times and from time to time be deemed to be first Tranche B-1
Letters of Credit in the amount permitted for Tranche B-1 Letters of Credit in
Section 3.1(a) and thereafter be deemed to be Revolving Letters of Credit only
to the extent, and in an amount by which, the aggregate amount of outstanding
Letters of Credit exceeds such permitted amount of Tranche B-1 Letters of
Credit, (ii) drawings under any Letter of Credit shall be deemed to have been
made first under Tranche B-1 Letters of Credit for so long as, and to the extent
that, there are any undrawn Tranche B-1 Letters of Credit outstanding (and
thereafter shall be deemed to have been made under Revolving Letters of Credit)
and (iii) any Letter of Credit that expires or terminates will be deemed to be
first a Revolving Letter of Credit, for so long as, and to the extent that,
there are outstanding Revolving Letters of Credit immediately prior to such
expiration or termination. To the extent necessary to implement the foregoing,
the identification of a Letter of Credit as a Revolving Letter of Credit or a
Tranche B-1 Letter of Credit may change from time to time and a portion of a
Letter of Credit may
53
be deemed to be a Tranche B-1 Letter of Credit and the remainder be deemed to be
a Revolving Letter of Credit. Notwithstanding the foregoing, the entire face
amount of any Letter of Credit with an expiration date after the Revolving
Termination Date shall at all times be deemed to be a Tranche B-1 Letter of
Credit, subject to the limitations set forth in clause (i) of the first sentence
of this paragraph (d).
3.2 Procedure for Issuance of Letter of Credit. The Borrower may from
time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Lender, and
such other certificates, documents and other papers and information as the
Issuing Lender may request. Upon receipt of any Application, the Issuing Lender
will process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall the Issuing Lender be required to issue any
Letter of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other papers
and information relating thereto) by issuing the original of such Letter of
Credit to the beneficiary thereof or as otherwise may be agreed to by the
Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of such
Letter of Credit to the Borrower promptly following the issuance thereof. The
Issuing Lender shall promptly furnish to the Administrative Agent, which shall
in turn promptly furnish to the Lenders, notice of the issuance of each Letter
of Credit (including the amount thereof).
3.3 Fees and Other Charges. (a) The Borrower will pay a fee on all
outstanding Letters of Credit at a per annum rate equal to (i) with respect to
Revolving Letters of Credit the Applicable Margin then in effect with respect to
Eurodollar Loans under the Revolving Facility, shared ratably among the
Revolving Lenders and (ii) with respect to Tranche B-1 Letters of Credit, the
Applicable Margin with respect to Eurodollar Loans under the Tranche B-1
Facility, shared ratably among the Tranche B-1 Lenders. Such fees shall be
payable (A) with respect to Revolving Letters of Credit, quarterly in arrears on
each L/C Fee Payment Date after the issuance date and (B) with respect to
Tranche B-1 Letters of Credit, monthly in arrears on each L/C Fee Payment Date
after the issuance date. In addition, the Borrower shall pay to the Issuing
Lender for its own account a fronting fee in an amount per annum separately
agreed with the Issuing Lender on the undrawn and unexpired amount of each
Letter of Credit, payable (i) with respect to Revolving Letters of Credit,
quarterly in arrears on each L/C Fee Payment Date after the issuance date and
(ii) with respect to Tranche B-1 Letters of Credit, monthly in arrears on each
L/C Fee Payment Date after the issuance date.
(b) In addition to the foregoing fees, the Borrower shall pay or
reimburse the Issuing Lender for such normal and customary costs and expenses as
are incurred or charged by the Issuing Lender in issuing, negotiating, effecting
payment under, amending or otherwise administering any Letter of Credit.
3.4 L/C Participations.. (a) The Issuing Lender irrevocably agrees to
grant and hereby grants to each L/C Participant under the applicable Facility,
and, to induce the Issuing Lender to issue Letters of Credit hereunder, each L/C
Participant under the applicable Facility irrevocably agrees to accept and
purchase and hereby accepts and purchases from the Issuing Lender, on the terms
and conditions hereinafter stated, for such L/C Participant's own account and
54
risk an undivided interest equal to such L/C Participant's Revolving Percentage
(in the case of Revolving Letters of Credit) or such L/C Participant's Tranche
B-1 Percentage (in the case of Tranche B-1 Letters of Credit) in the Issuing
Lender's obligations and rights under each Letter of Credit issued hereunder
under a Facility and the amount of each draft paid by the Issuing Lender
thereunder. Each L/C Participant under a Facility unconditionally and
irrevocably agrees with the Issuing Lender that, if a draft is paid under any
Letter of Credit issued under such Facility for which the Issuing Lender is not
reimbursed in full by the Borrower in accordance with the terms of this
Agreement (i) such L/C Participant shall pay to the Issuing Lender upon demand
at the Issuing Lender's address for notices specified herein an amount equal to
such L/C Participant's Revolving Percentage of the amount of such draft, or any
part thereof, that is not so reimbursed, in the case of Revolving Letters of
Credit and (ii) such L/C Participant hereby irrevocably authorizes the
Administrative Agent to make available to such Issuing Lender upon demand at the
Issuing Lender's address for notices specified herein such L/C Participant's
Tranche B-1 Percentage of the amount of such draft, or any part thereof, that is
not so reimbursed from amounts on deposit in such Tranche B-1 Lender's Tranche
B-1 Credit Linked Account (whether or not the conditions to borrowing set forth
in Section 5.2 are satisfied).
(b) If any amount required to be paid by any L/C Participant to the
Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion
of any payment made by the Issuing Lender under any Revolving Letter of Credit
is paid to the Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to the Issuing Lender on demand
an amount equal to the product of (i) such amount, times (ii) the daily average
Federal Funds Effective Rate during the period from and including the date such
payment is required to the date on which such payment is immediately available
to the Issuing Lender, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant pursuant to
Section 3.4(a) is not made available to the Issuing Lender by such L/C
Participant within three Business Days after the date such payment is due, the
Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the
rate per annum applicable to ABR Loans under the Revolving Facility. A
certificate of the Issuing Lender submitted to any L/C Participant with respect
to any amounts owing under this Section shall be conclusive in the absence of
manifest error.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with Section 3.4(a), the Issuing Lender
receives any payment related to such Letter of Credit (whether directly from the
Borrower or otherwise, including proceeds of collateral applied thereto by the
Issuing Lender), or any payment of interest on account thereof, the Issuing
Lender will (i) if such payment is with respect to a Revolving Letter of Credit,
distribute to such L/C Participant its pro rata share thereof and (ii) if such
payment is with respect to a Tranche B-1 Letter of Credit, return to each
Tranche B-1 Lender its pro rata share thereof by deposit into its Tranche B-1
Credit Linked Account; provided, however, that in the event that any such
payment received by the Issuing Lender shall be required to be returned by the
Issuing Lender, (A) if such Letter of Credit is a Revolving Letter of Credit,
such L/C Participant shall return to the Issuing Lender the portion thereof
previously distributed by the Issuing Lender to it and (B) if such Letter of
Credit is a Tranche B-1 Letter of Credit, the Tranche B-1 Lenders hereby
irrevocably authorize the Administrative Agent to make available to such Issuing
Lender the portion thereof previously
55
distributed to the Issuing Lender from amounts on deposit in such Tranche B-1
Lender's Tranche B-1 Credit Linked Account.
3.5 Reimbursement Obligation of the Borrower. The Borrower agrees to
reimburse the Issuing Lender no later than the first Business Day following each
date on which the Issuing Lender notifies the Borrower of the date and amount of
a draft presented under any Letter of Credit and paid by the Issuing Lender for
the amount of (a) such draft so paid and (b) any taxes, fees, charges or other
costs or expenses incurred by the Issuing Lender in connection with such
payment; provided, that such reimbursement obligation of the Borrower shall (i)
in the case where such reimbursement obligation is in respect of a Tranche B-1
Letter of Credit be deemed to be satisfied to the extent funds on deposit in the
Tranche B-1 Credit Linked Accounts are withdrawn and applied thereto in
accordance with Sections 2.4(c)(ii) and 3.4(a) (whether or not the conditions to
borrowing set forth in Section 5.2 are satisfied) and (ii) in the case where
such reimbursement obligation is in respect of a Revolving Letter of Credit, be
deemed to be satisfied when the Revolving Lenders have funded Revolving Loans in
the amount of such draft so paid to reimburse such Lender in accordance with the
following procedures: (A) the applicable Issuing Lender shall also notify the
Administrative Agent of the amount to be so reimbursed, (B) the Borrower shall
automatically be deemed to have requested a borrowing of Revolving Loans to be
made as ABR Loans in the amount of such reimbursement obligation, and (C) the
Administrative Agent shall have notified each Revolving Lender of the same and
the amount to be funded by such Revolving Lender which amount with respect to
such Revolving Lender shall equal its Revolving Percentage of such reimbursement
obligation (which shall be funded by such Revolving Lender whether or not the
conditions to borrowing set forth in Section 5.2 are satisfied). Each such
payment shall be made to the Issuing Lender at its address for notices specified
herein in lawful money of the United States and in immediately available funds.
Interest shall be payable on any and all amounts remaining unpaid by the
Borrower under this Section from the date such amounts become payable (whether
at stated maturity, by acceleration or otherwise) until payment in full at the
rate set forth in (i) until the second Business Day following the date of the
applicable drawing, Section 2.16(b) and (ii) thereafter, Section 2.16(c).
3.6 Obligations Absolute. The Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment that the
Borrower may have or may have had against the Issuing Lender, any beneficiary of
a Letter of Credit or any other Person. The Borrower also agrees with the
Issuing Lender that the Issuing Lender shall not be responsible for, and the
Borrower's Reimbursement Obligations under Section 3.5 shall not be affected by,
among other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among the Borrower and
any beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or any claims whatsoever of the Borrower against
any beneficiary of such Letter of Credit or any such transferee. The Issuing
Lender shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
the Issuing Lender. The Borrower agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or
56
willful misconduct and in accordance with the standards of care specified in the
Uniform Commercial Code of the State of New York, shall be binding on the
Borrower and shall not result in any liability of the Issuing Lender to the
Borrower. The foregoing shall not be construed to excuse the Issuing Lender from
liability to the Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by the Issuing Lender's failure to exercise the agreed standard
of care (as set forth in Section 3.7 below) in determining whether drafts and
other documents presented under a Letter of Credit comply with the terms
thereof. The parties hereto expressly agree that the Issuing Lender shall have
exercised the agreed standard of care in the absence of gross negligence or
willful misconduct on the part of the Issuing Lender.
3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the Issuing Lender shall promptly notify the
Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in connection with any draft presented for payment under
any Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are substantially in conformity with such
Letter of Credit.
3.8 Applications. To the extent that any provision of any Application
related to any Letter of Credit is inconsistent with the provisions of this
Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans and issue or participate in the Letters of
Credit, the Borrower hereby represents and warrants to the Administrative Agent
and each Lender that:
4.1 Financial Condition. The audited consolidated balance sheets of
the Borrower as at December 31, 2006 and December 31, 2005, and the related
consolidated statements of income and of cash flows for the fiscal years ended
on such dates, reported on by, and accompanied by an unqualified report from,
Deloitte & Touche LLP, present fairly the consolidated financial condition of
the Borrower as at such date, and the consolidated results of its operations and
its consolidated cash flows for the respective fiscal years then ended. The
Borrower and its Subsidiaries do not have any material Guarantee Obligations,
contingent liabilities or liabilities for taxes, or any long-term leases or
unusual forward or long-term commitments, including any interest rate or foreign
currency swap or exchange transaction or other obligation in respect of
derivatives, that are not reflected in the most recent financial statements
referred to in this paragraph. During the period from December 31, 2006 to and
including the date hereof there has been no Disposition by the Borrower of any
material part of its business or property.
4.2 No Change. Since December 31, 2006 there has been no development
or event that has had or would reasonably be expected to have a Material Adverse
Effect.
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4.3 Existence; Compliance with Law. Each of the Borrower and its
Subsidiaries (a) is (except in the case of any Immaterial Subsidiary) duly
organized, validly existing and in good standing (to the extent such concept is
relevant in the applicable jurisdiction) under the laws of the jurisdiction of
its organization, (b) has the corporate or other organizational power and
authority, and the legal right, to own and operate its property, to lease the
property it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign corporation or other
entity and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law except, in the case of clauses (c) and (d), to the extent that the failure
to be qualified or comply would not, in the aggregate, reasonably be expected to
have a Material Adverse Effect.
4.4 Power; Authorization; Enforceable Obligations. Each Loan Party has
the corporate or other organizational power and authority, and the legal right,
to make, deliver and perform the Loan Documents to which it is a party and, in
the case of the Borrower, to borrow hereunder. Each Loan Party has taken all
necessary corporate or other organizational action to authorize the execution,
delivery and performance of the Loan Documents to which it is a party and, in
the case of the Borrower, to authorize the borrowings on the terms and
conditions of this Agreement. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with the Transaction and the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or any of the Loan Documents, except consents,
authorizations, filings and notices described in Schedules 4.4, 4.19(a) and
4.19(b), which consents, authorizations, filings and notices have been obtained
or made and are in full force and effect or will have been obtained or made and
be in full force and effect on the Closing Date. Each Loan Document has been
duly executed and delivered on behalf of each Loan Party party thereto. This
Agreement constitutes, and each other Loan Document upon execution will
constitute, a legal, valid and binding obligation of each Loan Party party
thereto, enforceable against each such Loan Party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of this
Agreement and the other Loan Documents, the issuance of Letters of Credit, the
borrowings hereunder and the use of the proceeds thereof will not violate any
Requirement of Law or any material Contractual Obligation of the Borrower or any
of its Subsidiaries and will not result in, or require, the creation or
imposition of any Lien on any of their respective properties or revenues
pursuant to any Requirement of Law or any such Contractual Obligation (other
than the Liens created by the Security Documents). No Requirement of Law or
Contractual Obligation applicable to the Borrower or any of its Subsidiaries
would reasonably be expected to have a Material Adverse Effect.
4.6 Litigation. No litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the knowledge
of the Borrower, threatened by or against the Borrower or any of its
Subsidiaries or against any of their respective properties or
58
revenues (a) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby, or (b) that would reasonably be
expected to have a Material Adverse Effect.
4.7 No Default. Neither the Borrower nor any of its Subsidiaries is in
default under or with respect to any of its Contractual Obligations in any
respect that would reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
4.8 Ownership of Property; Liens. Each of the Borrower and its
Subsidiaries (other than Foreign Subsidiaries, as to which no representation is
made) has title in fee simple to, or a valid leasehold interest in, all its real
property, and good title to, or a valid leasehold interest in, all its other
property, and none of such property is subject to any Lien except as permitted
by Section 7.3.
4.9 Intellectual Property. The Borrower and each of its Subsidiaries
owns, or is licensed to use, all material Intellectual Property necessary for
the conduct of its business as currently conducted. No material claim has been
asserted and is pending by any Person challenging or questioning the use of any
Intellectual Property or the validity or effectiveness of any Intellectual
Property, nor does the Borrower know of any valid basis for any such claim. The
use of Intellectual Property by the Borrower and its Subsidiaries does not
infringe on the rights of any Person in any material respect.
4.10 Taxes. Each of the Borrower and each of its Subsidiaries has
filed or caused to be filed all Federal, state and other material tax returns
that are required to be filed and has paid all taxes shown to be due and payable
on said returns or on any assessments made against it or any of its property and
all other taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be); no tax Lien has
been filed, and, to the knowledge of the Borrower, no claim is being asserted,
with respect to any such tax, fee or other charge.
4.11 Federal Regulations. No part of the proceeds of any Loans will be
used for "buying" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U as now and from time to
time hereafter in effect or for any purpose that violates the provisions of the
Regulations of the Board. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
G-3 or FR Form U-1, as applicable, referred to in Regulation U.
4.12 Labor Matters. Except as, in the aggregate, would not reasonably
be expected to have a Material Adverse Effect: (a) there are no strikes or other
labor disputes against the Borrower or any of its Subsidiaries pending or, to
the knowledge of the Borrower, threatened; (b) hours worked by and payment made
to employees of the Borrower and its Subsidiaries have not been in violation of
the Fair Labor Standards Act or any other applicable Requirement of Law dealing
with such matters; and (c) all payments due from the Borrower or any of its
Subsidiaries on
59
account of employee health and welfare insurance have been paid or accrued as a
liability on the books of the Borrower or the relevant Subsidiary.
4.13 ERISA. Neither a Reportable Event which could give rise to a
material liability nor an "accumulated funding deficiency" (within the meaning
of Section 412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code. No termination of
a Single Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan
has arisen, during such five-year period. The present value of all accrued
benefits under each Single Employer Plan (based on those assumptions used to
fund such Plans) did not, as of the last annual valuation date prior to the date
on which this representation is made or deemed made, exceed the value of the
assets of such Plan allocable to such accrued benefits by an amount which would
reasonably be expected to have a Material Adverse Effect. Neither the Borrower
nor any Commonly Controlled Entity has had a complete or partial withdrawal from
any Multiemployer Plan that has resulted or would reasonably be expected to
result in a material liability under ERISA, and neither the Borrower nor any
Commonly Controlled Entity would become subject to any material liability under
ERISA if the Borrower or any such Commonly Controlled Entity were to withdraw
completely from all Multiemployer Plans as of the valuation date most closely
preceding the date on which this representation is made or deemed made. No such
Multiemployer Plan is in Reorganization or Insolvent.
4.14 Investment Company Act; Other Regulations. No Loan Party is an
"investment company," or a company "controlled" by an "investment company,"
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) that limits its ability to incur Indebtedness.
4.15 Subsidiaries. Except as disclosed to the Administrative Agent by
the Borrower in writing from time to time after the Closing Date, (a) Schedule
4.15 sets forth the name and jurisdiction of formation of each Subsidiary and,
as to each such Subsidiary, the percentage of each class of Capital Stock owned
by any Loan Party and (b) there are no outstanding subscriptions, options,
warrants, calls, rights or other agreements or commitments (other than stock
options granted to employees or directors and directors' qualifying shares) of
any nature relating to any Capital Stock of the Borrower or any Subsidiary,
except as created by the Loan Documents.
4.16 Use of Proceeds. The proceeds of the Tranche A Term Loans and the
Tranche B-1 Loans made (or deemed made) on the Closing Date were used to
refinance existing Indebtedness of the Borrower and its Subsidiaries under the
Existing Credit Agreement, to pay fees and expenses relating to the Transaction
under the Existing Credit Agreement and for general corporate purposes. The
proceeds of the Revolving Loans, Tranche B-1 Loans made after the Closing Date
and the Swingline Loans, and the Letters of Credit, shall be used for general
corporate purposes.
4.17 Environmental Matters. Except as, in the aggregate, would not
reasonably be expected to have a Material Adverse Effect:
60
(a) the facilities and properties owned, leased or operated by the
Borrower or any of its Subsidiaries (the "Properties") do not contain, and have
not previously contained, any Materials of Environmental Concern in amounts or
concentrations or under circumstances that constitute or constituted a violation
of, or could give rise to liability under, any Environmental Law;
(b) neither the Borrower nor any of its Subsidiaries has received or
is aware of any written notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or compliance
with Environmental Laws with regard to any of the Properties or the business
operated by the Borrower or any of its Subsidiaries (the "Business"), nor does
the Borrower have knowledge or reason to believe that any such notice will be
received or is being threatened;
(c) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a location
that could give rise to liability under, any Environmental Law, nor have any
Materials of Environmental Concern been generated, treated, stored or disposed
of at, on or under any of the Properties in violation of, or in a manner that
could give rise to liability under, any applicable Environmental Law;
(d) no judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary is or will be named as
a party with respect to the Properties or the Business, nor are there any
consent decrees or other decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties or the Business;
(e) there has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations of the Borrower or any Subsidiary in connection with the
Properties or otherwise in connection with the Business, in violation of or in
amounts or in a manner that could give rise to liability under Environmental
Laws;
(f) the Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, with all
applicable Environmental Laws, and there is no contamination at, under or about
the Properties or violation of any Environmental Law with respect to the
Properties or the Business; and
(g) neither the Borrower nor any of its Subsidiaries has assumed any
liability of any other Person under Environmental Laws.
4.18 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum or any other document, certificate or written statement
furnished by or on behalf of any Loan Party to the Administrative Agent or the
Lenders, or any of them, for use in connection with the transactions
contemplated by this Agreement or the other Loan Documents, contained as of the
date such statement, information, document or certificate was so furnished (or,
in the case of the Confidential Information Memorandum, as of the date of this
Agreement), any untrue statement of
61
a material fact or omitted to state a material fact necessary to make the
statements contained herein or therein, when taken as a whole, not materially
misleading. The projections and pro forma financial information contained in the
materials referenced above are based upon good faith estimates and assumptions
believed by management of the Borrower to be reasonable at the time made, it
being recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount. There is no fact known
to any Loan Party that would reasonably be expected to have a Material Adverse
Effect that has not been expressly disclosed herein, in the other Loan
Documents, in the Confidential Information Memorandum or in any other documents,
certificates and statements furnished to the Administrative Agent and the
Lenders for use in connection with the transactions contemplated hereby and by
the other Loan Documents.
4.19 Security Documents. (a) The Guarantee and Collateral Agreement is
effective to create in favor of the Administrative Agent, for the benefit of the
Lenders, a legal, valid and enforceable (except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally) security interest in
the Collateral described therein and proceeds thereof. In the case of the
Pledged Stock described in the Guarantee and Collateral Agreement, when the
Administrative Agent obtains control of stock certificates representing such
Pledged Stock, and in the case of the other Collateral described in the
Guarantee and Collateral Agreement, when financing statements and other filings
specified on Schedule 4.19(a) in appropriate form are or have been filed in the
offices specified on Schedule 4.19(a), the Guarantee and Collateral Agreement
shall constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the Loan Parties in such Collateral and the proceeds
thereof to the extent a security interest can be perfected by filings or other
action required thereunder as security for the Obligations (as defined in the
Guarantee and Collateral Agreement), in each case prior and superior in right to
any other Person (except, in the case of Collateral other than Pledged Stock
with respect to which the Administrative Agent has control, Liens permitted by
Section 7.3).
(b) Each of the Mortgages is effective to create in favor of the
Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable Lien on the Mortgaged Properties described therein and proceeds
thereof, and when the Mortgages are or have been filed in the offices specified
on Schedule 4.19(b), each such Mortgage shall constitute a fully perfected Lien
on, and security interest in, all right, title and interest of the Loan Parties
in the Mortgaged Properties and the proceeds thereof, as security for the
Obligations (as defined in the relevant Mortgage), in each case prior and
superior in right to any other Person. As of the Closing Date, Schedule 1.1B
lists each of the real properties in the United States owned in fee simple by
the Borrower or any of its Subsidiaries having a value, in the reasonable
opinion of the Borrower, in excess of $5,000,000.
4.20 Solvency. Each Loan Party is, and after giving effect to the
Transactions and the incurrence of all Indebtedness and obligations being
incurred in connection herewith and therewith will be and will continue to be,
Solvent.
4.21 Senior Indebtedness. The Obligations constitute "Senior Debt" of
the Borrower under and as defined in the Senior Subordinated Note Indenture and
the obligations of
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each Subsidiary Guarantor under the Guarantee and Collateral Agreement
constitute "Guarantor Senior Debt" of such Subsidiary Guarantor under and as
defined in the Senior Subordinated Note Indenture.
4.22 First Priority Claims. As long as the Intercreditor Agreement is
in effect, the Borrower Obligations and the Guarantor Obligations (as such terms
are defined in the Guarantee and Collateral Agreement) constitute First Priority
Claims (as defined in the Intercreditor Agreement and the Second Lien Note
Indenture), and the Liens on the Collateral securing the Borrower Obligations
and the Guarantor Obligations constitute First Priority Liens (as defined in the
Second Lien Note Indenture).
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Amendment and Restatement of Existing Credit
Agreement, Redesignation of Certain Loans and Commitments and Continuation of
Existing Letters of Credit on Closing Date. The agreement of each Lender to
amend and restate the Existing Credit Agreement in the form of this Agreement
and make extensions of credit hereunder is subject to the prior or concurrent
satisfaction (but in any event no later than March 31, 2007) of the following
conditions precedent:
(a) Agreement. The Administrative Agent shall have received this
Agreement, executed and delivered by the Borrower and the Lenders.
(b) Lien Searches. The Administrative Agent shall have received the
results of a recent lien search in the state of organization of each of the Loan
Parties are located, and such search shall reveal no liens on any of the assets
of the Borrower or its Subsidiaries except for liens permitted by Section 7.3 or
which will be discharged on or prior to the Closing Date.
(c) [Intentionally Omitted]
(d) Approvals. All material governmental and third party approvals
necessary in connection with the Transaction, the continuing operations of the
Borrower and its Subsidiaries and the transactions contemplated hereby shall
have been obtained and be in full force and effect.
(e) Fees. The Lenders and the Administrative Agent shall have received
all fees required to be paid, and all expenses of the Administrative Agent and
the Arrangers for which invoices have been presented (including the reasonable
fees and expenses of legal counsel), on or before the Closing Date.
(f) Closing Certificate. The Administrative Agent shall have received,
with a counterpart for each Lender, a certificate of each Loan Party, dated the
Closing Date, substantially in the form of Exhibit C, with appropriate
insertions and attachments.
(g) Legal Opinion. The Administrative Agent shall have received the
executed legal opinion of Mayer, Brown, Rowe & Maw LLP, counsel to the Borrower
and the other Loan Parties, in form and substance reasonably satisfactory to the
Administrative Agent and its counsel. Such legal opinion shall cover such other
matters incident to the transactions contemplated by this Agreement as the
Administrative Agent may reasonably require.
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(h) Pledged Stock; Stock Powers. The Administrative Agent shall have
received the certificates representing the shares of certificated Capital Stock
pledged pursuant to the Guarantee and Collateral Agreement, together with an
undated stock power for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof and Uniform Commercial Code Financing
Statements covering such Capital Stock (to the extent not previously delivered
or filed, as applicable).
(i) Filings, Registration and Recordings. Each document (including any
Uniform Commercial Code financing statement) required by the Security Documents
or under law or reasonably requested by the Administrative Agent to be filed,
registered or recorded in order to create in favor of the Administrative Agent,
for the benefit of the Lenders, a perfected Lien on the Collateral described
therein, prior and superior in right to any other Person (other than with
respect to Liens expressly permitted by Section 7.3), shall have been filed,
registered or recorded or, if not, shall be in proper form for filing,
registration or recordation.
(j) Reallocation and Assignments.
(i) The Borrower shall have paid to the Administrative Agent
interest, letter of credit commissions and commitment fees
which are unpaid and accrued to the Closing Date under the
Existing Credit Agreement; and
(ii) The Lenders shall have made such payments and assignments
among themselves and to the lenders under the Existing
Credit Agreement, as directed by the Administrative Agent,
so that the Commitments, Loans, Letters of Credit and
Tranche B-1 Credit Linked Deposits outstanding on the
Closing Date are held by the Lenders in accordance with this
Agreement. Commitments, Loans and Letters of Credit (each as
defined in the Existing Credit Agreement) made or issued
under the Existing Credit Agreement and outstanding on the
Closing Date shall be continued outstanding hereunder as
Commitments, Loans and Letters of Credit hereunder as
provided in Section 2.26 and 3.1(c). Pursuant to the
foregoing, funding for any Lender on the Closing Date may be
made on a net basis as directed by the Administrative Agent.
(k) Projections. The Lenders shall have received projections of the
Borrower (consisting of a balance sheet, statement of cash flows and income
statement) for fiscal years 2007, 2008 and 2009 that are reasonably satisfactory
to the Administrative Agent.
5.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any extension of credit requested to be made by it on any date
(including its initial extension of credit) is subject to the satisfaction of
the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents shall be
true and correct in all material respects on and as of such date as if made on
and as of such date (except to the extent any
64
such representation and warranty expressly relates to an earlier date, in which
case it was true and correct in all material respects as of such earlier date).
(b) No Default. No Default or Event of Default shall have occurred and
be continuing on such date or after giving effect to the extensions of credit
requested to be made on such date.
Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
Section 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Letter of Credit remains outstanding or any Loan or other amount is
owing to any Lender or the Administrative Agent hereunder, the Borrower shall
and shall cause each of its Subsidiaries to:
6.1 Financial Statements. Furnish to the Administrative Agent and each
Lender:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the audited consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the end of
such year and the related audited consolidated statements of income and of cash
flows (or such other similar or additional statement then required by the SEC
for annual reports filed pursuant to the Exchange Act) for such year, setting
forth in each case in comparative form the figures for the previous year,
reported on without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, or other material
qualification or exception, by Deloitte & Touche LLP or other independent
certified public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal year
of the Borrower, the unaudited consolidated balance sheet of the Borrower and
its consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and of cash flows (or such other or
similar or additional statement then required by the SEC for quarterly reports
filed pursuant to the Exchange Act) for such quarter and the portion of the
fiscal year through the end of such quarter, setting forth in each case in
comparative form the figures for the previous year, certified by a Responsible
Officer as being fairly stated in all material respects (subject to normal
year-end audit adjustments).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
Financial statements required to be delivered pursuant to this Section 6.1 shall
be deemed to have been delivered on the date on which the Borrower provides
notice to the Administrative Agent (which notice the Administrative Agent shall
promptly provide to the Lenders) that such financial
65
statements are included in its annual report on Form 10-K or Form 10-Q, as the
case may be, as filed with the SEC, and such report has been posted on the SEC
website on the Internet at sec.gov/edaux/searches.htm (or any successor
website), on the Borrower's IntraLinks site at intralinks.com or at another
relevant website identified in such notice and accessible by the Lenders without
charge.
6.2 Certificates; Other Information. Furnish to the Administrative
Agent and each Lender (or, in the case of clause (g), to the relevant Lender):
(a) concurrently with the delivery of the financial statements
referred to in Section 6.1(a), a certificate of the independent certified public
accountants reporting on such financial statements stating that in making the
examination necessary therefor no knowledge was obtained of any Event of Default
arising as a result of non-compliance with Section 7.1, except as specified in
such certificate (which certificate may be limited to accounting matters and
disclaim responsibility for legal interpretations);
(b) within 10 Business Days after the delivery of any financial
statements pursuant to Section 6.1, (i) a certificate of a Responsible Officer
stating that, to the best of each such Responsible Officer's knowledge, each
Loan Party during such period has observed or performed all of its covenants and
other agreements, and satisfied every condition, contained in this Agreement and
the other Loan Documents to which it is a party to be observed, performed or
satisfied by it, and that such Responsible Officer has obtained no knowledge of
any Default or Event of Default except as specified in such certificate and (ii)
in the case of quarterly or annual financial statements, a Compliance
Certificate containing all information and calculations necessary for
determining compliance by the Borrower and its Subsidiaries with the provisions
of this Agreement referred to therein as of the last day of the fiscal quarter
or fiscal year of the Borrower, as the case may be;
(c) no later than three (3) Business Days prior to the effectiveness
thereof, copies of substantially final drafts of any proposed amendment,
supplement, waiver or other modification with respect to the Senior Subordinated
Note Indenture or the Second Lien Note Indenture;
(d) promptly upon the mailing thereof, copies of all financial
statements and reports (except to the extent previously delivered pursuant to
Section 6.1) that the Borrower sends to the holders of any class of its debt
securities or public equity securities and, within five days after the same are
filed, copies of all financial statements and reports that the Borrower may make
to, or file with, the SEC;
(e) as soon as available, but in any event not later than 45 days
after the end of each fiscal year of the Borrower (but only if the Borrower's
Consolidated Leverage Ratio is greater than 3.50 to 1.0 as of the end of the
Borrower's third fiscal quarter in such ending fiscal year), a copy of the
projections by the Borrower of its operating budget and cash flow budget for
each quarter of the fiscal year in which such delivery is required to be made,
such projections to be accompanied by a certificate of a Responsible Officer to
the effect that such projections have been prepared based upon good faith
estimates and assumptions and on the basis of sound financial planning practice;
and
66
(f) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
6.3 Payment of Taxes. Pay, discharge or otherwise satisfy at or before
maturity or before they become delinquent, as the case may be, all tax
obligations that are material to the Borrower and its Subsidiaries taken as a
whole of whatever nature, except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
the Borrower or its Subsidiaries, as the case may be.
6.4 Maintenance of Existence; Compliance. (a) (i) Preserve, renew and
keep in full force and effect its corporate or other organizational existence
and (ii) take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of the Business, except,
in each case, as otherwise permitted by Section 7.4 and except, in the case of
clause (ii) above, to the extent that failure to do so would not reasonably be
expected to have a Material Adverse Effect; and (b) comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
6.5 Maintenance of Property; Insurance. (a) Keep all property useful
and necessary in its business in good working order and condition, ordinary wear
and tear excepted and (b) maintain with financially sound and reputable
insurance companies insurance on all its property in at least such amounts and
against at least such risks (but including in any event public liability,
product liability and business interruption) as are usually insured against in
the same general area by companies engaged in the same or a similar business.
6.6 Inspection of Property; Books and Records; Discussions. (a) Keep
proper books of records and accounts in which full, true and correct entries in
conformity in all material respects with GAAP and all Requirements of Law shall
be made of all dealings and transactions in relation to its business and
activities and (b) permit representatives of any Lender, upon reasonable prior
written notice, to make reasonable visits to and inspections of any of its
properties and examine and make abstracts from any of its books and records at
any reasonable time and as often as may reasonably be desired and to discuss the
business, operations, properties and financial and other condition of the
Borrower and its Subsidiaries with officers of the Borrower and its
Subsidiaries.
6.7 Notices. Promptly give notice to the Administrative Agent and each
Lender of:
(a) the occurrence of any Default or Event of Default upon obtaining
knowledge thereof;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding that may exist at any time between the Borrower or
any of its Subsidiaries and any Governmental Authority, that in either case, if
not cured or if adversely determined, as the case may be, would reasonably be
expected to have a Material Adverse Effect;
67
(c) any litigation or proceeding affecting the Borrower or any of its
Subsidiaries in which the amount involved is $25,000,000 or more and not covered
by insurance or in which injunctive or similar relief is sought;
(d) the following events, as soon as possible and in any event within
30 days after the Borrower knows or has reason to know thereof: (i) the
occurrence of any Reportable Event with respect to any Plan, a failure to make
any required contribution to a Plan, the creation of any Lien in favor of the
PBGC or a Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings or
the taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal from,
or the termination, Reorganization or Insolvency of, any Plan; and
(e) any development or event that has had or would reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section 6.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower or the relevant Subsidiary proposes
to take with respect thereto.
6.8 Environmental Laws. (a) Comply with, and ensure compliance in all
material respects by all tenants and subtenants, if any, with, all applicable
Environmental Laws, and obtain and comply with and maintain, and ensure that all
tenants and subtenants obtain and comply in all material respects with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws, except, in each case with
respect to this Section 6.8, to the extent the failure to do so would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws.
6.9 Additional Collateral, etc. (a) With respect to any property
acquired after the Closing Date by the Borrower or any of its Subsidiaries
(other than an Excluded Subsidiary) (other than (x) any property described in
paragraph (b), (c) or (d) below and (y) any property subject to a Lien expressly
permitted by Section 7.3(g)) as to which the Administrative Agent, for the
benefit of the Lenders, does not have a perfected Lien, promptly (i) execute and
deliver to the Administrative Agent such amendments to the Guarantee and
Collateral Agreement or such other documents as the Administrative Agent deems
necessary or advisable to grant to the Administrative Agent, for the benefit of
the Lenders, a security interest in such property and (ii) take all actions
necessary or advisable to grant to the Administrative Agent, for the benefit of
the Lenders, a perfected security interest in such property having the highest
priority then available, including the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the Guarantee
and Collateral Agreement or by law or as may be requested by the Administrative
Agent.
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(b) With respect to any fee interest in any real property having a
value (together with improvements thereof) of at least $5,000,000 acquired after
the Closing Date by the Borrower or any of its Subsidiaries (other than (x) any
such real property subject to a Lien expressly permitted by Section 7.3(g) and
(y) real property acquired by any Excluded Subsidiary), promptly (i) execute and
deliver a first priority Mortgage, in favor of the Administrative Agent, for the
benefit of the Lenders, covering such real property, (ii) if requested by the
Administrative Agent, provide the Lenders with (x) title and extended coverage
insurance covering such real property in an amount at least equal to the
purchase price of such real property (or such other amount as shall be
reasonably specified by the Administrative Agent) as well as a current ALTA
survey thereof, together with a surveyor's certificate and (y) any consents or
estoppels reasonably deemed necessary or advisable by the Administrative Agent
in connection with such mortgage or deed of trust, each of the foregoing in form
and substance reasonably satisfactory to the Administrative Agent and (iii) if
requested by the Administrative Agent, deliver to the Administrative Agent legal
opinions relating to the matters described above, which opinions shall be in
form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
(c) With respect to any new Subsidiary (other than a Foreign
Subsidiary) created or acquired after the Closing Date by the Borrower or any of
its Subsidiaries (which, for the purposes of this paragraph (c), shall include
any existing Subsidiary that ceases to be an Excluded Subsidiary), promptly (i)
execute and deliver to the Administrative Agent such amendments to the Guarantee
and Collateral Agreement as the Administrative Agent deems necessary or
advisable to grant to the Administrative Agent, for the benefit of the Lenders,
a perfected first priority security interest in the Capital Stock of such new
Subsidiary that is owned by the Borrower or any of its Subsidiaries, (ii)
deliver to the Administrative Agent the certificates representing such Capital
Stock, together with undated stock powers, in blank, executed and delivered by a
duly authorized officer of the Borrower or such Subsidiary, as the case may be,
and take such other action as may be necessary or, in the opinion of the
Administrative Agent, desirable to perfect the Administrative Agent's security
interest therein, (iii) cause such new Subsidiary (other than Excluded
Subsidiaries) (A) to become a party to the Guarantee and Collateral Agreement
and (B) to deliver to the Administrative Agent a certificate of such Subsidiary,
substantially in the form of Exhibit C, with appropriate insertions and
attachments, and (iv) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
(d) With respect to any new first-tier Foreign Subsidiary (other than
any Immaterial Foreign Subsidiary (as defined in the Guarantee and Collateral
Agreement)) of a Loan Party created or acquired after the Closing Date by the
Borrower or any of its Subsidiaries, promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement
as the Administrative Agent deems necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first priority
security interest in the Capital Stock of such new Subsidiary (provided that in
no event shall more than 65% of the total outstanding Capital Stock of any such
new Subsidiary be required to be so pledged, provided, further, that the
Borrower shall not be obligated to pledge the Capital Stock of a Foreign
Subsidiary to the extent such pledge would violate the laws of the jurisdiction
of such Foreign Subsidiary's organization), (ii) deliver to the Administrative
Agent the certificates representing such Capital Stock, together with undated
stock powers, in blank, executed and delivered by a duly
69
authorized officer of the Borrower or such Subsidiary, as the case may be, and
take such other action as may be necessary or, in the opinion of the
Administrative Agent, desirable to perfect the Administrative Agent's security
interest therein, and (iii) if requested by the Administrative Agent, deliver to
the Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
(e) Not permit any Subsidiary to guarantee payment of any of the
Second Priority Claims unless and until such Subsidiary has guaranteed payment
of the First Priority Claims pursuant to the Guarantee and Collateral Agreement.
(f) Except as required by the terms of the Second Lien Note Indenture
or the Second Priority Collateral Documents, prior to taking any action to
create or perfect any Lien on any Collateral securing the Second Priority Claims
provide the Administrative Agent at least five Business Days prior notice of
such action, and promptly following the taking of any action to create or
perfect any Lien on any Collateral securing the Second Priority Claims notify
the Administrative Agent in writing of such action.
(g) Upon request of the Administrative Agent from time to time
promptly provide the Administrative Agent with information regarding any
property of the Borrower and its Subsidiaries which secures or purports to
secure any Second Priority Claims and the actions taken to create or perfect the
applicable Liens, to the extent such information is reasonably available to the
Borrower or its Subsidiaries and is not subject to any legal or similar
privilege.
(h) Deliver to the Administrative Agent executed Mortgage amendments
and updated title insurance policies, all in form reasonably satisfactory to the
Administrative Agent, with respect to Mortgages existing on the Closing Date on
or prior to the day which is 60 days after the Closing Date, which period may be
extended by the Administrative Agent from time to time in its sole discretion.
(i) With respect to Monroe Czechia s.r.o., Maco Inversiones S.A. and
Tenneco Automotive Polska Sp z.o.o., the Borrower shall, within 90 days after
the Closing Date (which period may be extended from time to time by the
Administrative Agent in its sole discretion), (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement
as the Administrative Agent deems necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first priority
security interest in the Capital Stock of Monroe Czechia s.r.o., Maco
Inversiones S.A. and Tenneco Automotive Polska Sp z.o.o. (provided that in no
event shall more than 65% of the total outstanding Capital Stock of Monroe
Czechia s.r.o., Maco Inversiones S.A. and Tenneco Automotive Polska Sp z.o.o. be
required to be so pledged), (ii) deliver to the Administrative Agent the
certificates (if any) representing such Capital Stock, together with undated
stock powers, in blank, executed and delivered by a duly authorized officer of
the Borrower, and take such other action as may be necessary or, in the opinion
of the Administrative Agent, desirable to perfect the Administrative Agent's
security interest therein, and (iii) if requested by the Administrative Agent,
deliver to the Administrative Agent legal opinions relating to the matters
described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent.
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SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Letter of Credit remains outstanding or any Loan or other amount is
owing to any Lender or the Administrative Agent hereunder, the Borrower shall
not, and shall not permit any of its Subsidiaries to, directly or indirectly:
7.1 Financial Condition Covenants.
(a) Consolidated Net Leverage Ratio. Permit the Consolidated Net
Leverage Ratio as at the last day of any period of four consecutive fiscal
quarters of the Borrower ending with any fiscal quarter during any period set
forth below to exceed the ratio set forth below opposite such period:
Consolidated Net
Period Leverage Ratio
- ------ ----------------
Second Quarter 2007 4.25 to 1.00
Third Quarter 2007 4.25 to 1.00
Fourth Quarter 2007 4.25 to 1.00
First Quarter 2008 4.00 to 1.00
Second Quarter 2008 4.00 to 1.00
Third Quarter 2008 4.00 to 1.00
Fourth Quarter 2008 4.00 to 1.00
First Quarter 2009 3.75 to 1.00
Second Quarter 2009 3.75 to 1.00
Third Quarter 2009 3.75 to 1.00
Fourth Quarter 2009 3.75 to 1.00
First Quarter 2010 3.50 to 1.00
Second Quarter 2010 3.50 to 1.00
Third Quarter 2010 3.50 to 1.00
Fourth Quarter 2010 3.50 to 1.00
First Quarter 2011 3.50 to 1.00
Second Quarter 2011 3.50 to 1.00
Third Quarter 2011 3.50 to 1.00
Fourth Quarter 2011 3.50 to 1.00
Fiscal Year 2012 and thereafter 3.50 to 1.00
(b) Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio for any period of four consecutive fiscal quarters of
the Borrower ending with any fiscal quarter during any period set forth below to
be less than the ratio set forth below opposite such period:
Consolidated
Interest
Period Coverage Ratio
- ------ --------------
Second Quarter 2007 2.10 to 1.00
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Consolidated
Interest
Period Coverage Ratio
- ------ --------------
Third Quarter 2007 2.10 to 1.00
Fourth Quarter 2007 2.10 to 1.00
First Quarter 2008 2.10 to 1.00
Second Quarter 2008 2.10 to 1.00
Third Quarter 2008 2.10 to 1.00
Fourth Quarter 2008 2.10 to 1.00
First Quarter 2009 2.25 to 1.00
Second Quarter 2009 2.25 to 1.00
Third Quarter 2009 2.25 to 1.00
Fourth Quarter 2009 2.25 to 1.00
First Quarter 2010 2.40 to 1.00
Second Quarter 2010 2.40 to 1.00
Third Quarter 2010 2.40 to 1.00
Fourth Quarter 2010 2.40 to 1.00
First Quarter 2011 2.55 to 1.00
Second Quarter 2011 2.55 to 1.00
Third Quarter 2011 2.55 to 1.00
Fourth Quarter 2011 2.55 to 1.00
Fiscal Year 2012 and thereafter 2.75 to 1.00
7.2 Indebtedness. Create, issue, incur, assume, become liable in
respect of or suffer to exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan Document;
(b) Indebtedness of the Borrower to any of its Subsidiaries and of any
Subsidiary to the Borrower or any other Subsidiary of the Borrower;
(c) Guarantee Obligations incurred in the ordinary course of business
by the Borrower or any of its Subsidiaries of obligations of any Subsidiary in
an aggregate amount not to exceed $100,000,000 at any time, unless otherwise
permitted hereunder;
(d) Indebtedness existing on the Closing Date (or which may be
incurred pursuant to commitments existing on the Closing Date) listed on
Schedule 7.2(d) and any refinancings, refundings, renewals or extensions thereof
(without increasing, or shortening the maturity of, the principal amount
thereof);
(e) Indebtedness (including, without limitation, Capital Lease
Obligations) secured by Liens permitted by Section 7.3(g) or (i) in an aggregate
principal amount not to exceed $125,000,000 at any one time outstanding;
(f) (i) Indebtedness of the Borrower in respect of the Senior
Subordinated Notes in an aggregate principal amount not to exceed $500,000,000
and any Permitted
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Refinancing Indebtedness in respect thereof and (ii) Guarantee Obligations of
any Subsidiary Guarantor in respect of such Indebtedness, provided, that such
Guarantee Obligations are subordinated to the same extent as the obligations of
the Borrower in respect of the Senior Subordinated Notes;
(g) Hedge Agreements (including Guarantee Obligations of the Loan
Parties in respect of Hedge Agreements entered into by Tenneco Management
(Europe) Limited or any Subsidiary that succeeds Tenneco Management (Europe)
Limited in the performance of international treasury management functions) in
respect of (i) Indebtedness that bears interest on a fixed or floating rate
basis, so long as such agreements are not entered into for speculative purposes
and (ii) currencies as long as such agreements are entered into to hedge actual
exposure and not entered into for speculative purposes;
(h) additional Indebtedness of Foreign Subsidiaries of the Borrower
under lines of credit in an aggregate principal amount not to exceed the local
currency equivalent of $150,000,000 at any time;
(i) Indebtedness of the Borrower or any of its Subsidiaries in respect
of Stub Debt;
(j) additional Indebtedness of the Borrower or any of its Subsidiaries
in an aggregate principal amount (for the Borrower and all Subsidiaries) not to
exceed $150,000,000 at any one time outstanding;
(k) Capital Lease Obligations arising from Permitted Sale/Leasebacks;
(l) (i) Indebtedness of the Borrower in respect of the Second Lien
Notes in an aggregate principal amount not to exceed $475,000,000 and any
Permitted Refinancing Indebtedness thereof and (ii) Guarantee Obligations of any
Subsidiary Guarantor in respect of such Indebtedness;
(m) Indebtedness in respect of Cash Management Obligations, including
Cash Pooling Agreements, or guarantees thereof, including the guarantee set
forth in Section 2.1(f) of the Guarantee and Collateral Agreement;
(n) additional unsecured Indebtedness of Foreign Subsidiaries in an
aggregate principal amount not to exceed the local currency equivalent of
$200,000,000 at any time to the extent the proceeds are used to prepay,
repurchase or redeem the Second Lien Notes; and
(o) unsecured Guarantee Obligations of the Borrower of obligations of
any Subsidiary (other than secured obligations of the type described in clause
(h) above).
7.3 Liens. Create, incur, assume or suffer to exist any Lien upon any
of its property, whether now owned or hereafter acquired, except for:
(a) Liens for taxes not yet due or that are being contested in good
faith by appropriate proceedings, provided that adequate reserves with respect
thereto are maintained on
73
the books of any Loan Party or any Excluded Subsidiary, as the case may be, in
conformity with GAAP;
(b) statutory liens of landlords and carriers, warehousemen,
mechanics, materialmen, repairmen or other like Liens arising in the ordinary
course of business that are not overdue for a period of more than 30 days or
that are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business that, in the aggregate,
are not substantial in amount and that do not in any case materially detract
from the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the Borrower or any of its Subsidiaries;
(f) Liens in existence on the Closing Date listed on Schedule 7.3(f),
securing Indebtedness permitted by Section 7.2(d), provided that no such Lien is
spread to cover any additional property after the Closing Date and that the
amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness incurred pursuant to Section 7.2(e) on
property at the time it is acquired by any the Borrower or any of its
Subsidiaries, provided that such Liens do not spread to cover other properties;
(h) Liens arising solely by virtue of any statutory or common law
provisions related to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts;
(i) Liens securing Indebtedness of the Borrower or any Subsidiary
incurred pursuant to Section 7.2(e) to finance the acquisition of fixed or
capital assets, provided that (i) such Liens do not at any time encumber any
property other than the property financed by such Indebtedness and (ii) the
amount of Indebtedness secured thereby is not increased;
(j) Liens created pursuant to the Security Documents;
(k) Liens consisting of judgment or judicial attachment Liens and
Liens securing contingent obligations on appeal and other bonds in connection
with court proceedings or judgments up to the aggregate at any time outstanding
of $50,000,000;
(l) any interest or title of a lessor under any lease entered into by
the Borrower or any other Subsidiary in the ordinary course of its business and
covering only the assets so leased;
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(m) Permitted Receivables Financings;
(n) Liens not otherwise permitted by this Section so long as neither
(i) the aggregate outstanding principal amount of the obligations secured
thereby nor (ii) the aggregate fair market value (determined as of the date such
Lien is incurred) of the assets subject thereto exceeds (as to the Borrower and
all Subsidiaries) $100,000,000 at any one time;
(o) Liens on property of Foreign Subsidiaries securing Indebtedness
permitted by Section 7.2(h);
(p) Liens on the Collateral securing Indebtedness of the Borrower or
any Subsidiary Guarantor incurred pursuant to Section 7.2(l), provided that such
Liens are, at all times prior to repayment in full in cash of the Obligations
and termination of the Revolving Commitments and of the Total Tranche B-1 Credit
Linked Deposit Amount, subordinate to Liens created under the Loan Documents
securing the First Priority Claims pursuant to the terms of the Intercreditor
Agreement; and
(q) Liens on cash, cash equivalents, deposit accounts and similar
items of Foreign Subsidiaries securing Cash Management Obligations, including
obligations in respect of any Cash Pooling Agreement, and guarantees by the
Borrower or any of its Subsidiaries of such Cash Management Obligations or other
Obligations (it being understood that the Borrower and the Domestic Subsidiaries
may not provide a security interest in the Collateral or their other assets for
Cash Management Obligations or obligations under any Cash Pooling Agreement to
benefit Foreign Subsidiaries except to the extent the secured party is a Lender
(or any Affiliate of a Lender)); and
(r) Liens on up to $15,000,000 of cash collateral securing obligations
to issuing banks in respect of banker's acceptances issued through joint
ventures of the Borrower and its Subsidiaries in the People's Republic of China.
7.4 Fundamental Changes. Enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or Dispose of all or substantially all of its
property or business, except that:
(a) (i) any Subsidiary of the Borrower may be merged or consolidated
with or into the Borrower (provided that the Borrower shall be the continuing or
surviving corporation) or with or into any Wholly Owned Subsidiary Guarantor
(provided that the Wholly Owned Subsidiary Guarantor shall be the continuing or
surviving entity) and (ii) any Foreign Subsidiary may be merged with or into any
other Subsidiary (provided that, if such other Subsidiary is a Domestic
Subsidiary, such Domestic Subsidiary shall be the continuing or surviving
entity);
(b) (i) any Subsidiary of the Borrower may Dispose of any or all of
its assets (upon voluntary liquidation or otherwise) to the Borrower or any
Wholly Owned Subsidiary Guarantor and (ii) any Foreign Subsidiary may Dispose of
any or all of its assets upon voluntary liquidation or otherwise to any other
Subsidiary; and
(c) any Subsidiary (i) in which the Borrower and its Subsidiaries own
Capital Stock representing less than 80% of the ordinary voting power of such
Subsidiary or (ii) that is a
75
Foreign Subsidiary or an Immaterial Domestic Subsidiary may be liquidated as
long as the proceeds of such liquidation (after satisfying all Contractual
Obligations of such Subsidiary) are distributed to the holders of the Capital
Stock of such Subsidiary on an approximately ratable basis (based on their
respective equity ownership interests in such Subsidiary).
7.5 Disposition of Property. Dispose of any of its property, whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out property in the ordinary
course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.4(b);
(d) (i) the sale or issuance of any Subsidiary's Capital Stock to the
Borrower or any Wholly Owned Subsidiary Guarantor or (ii) the sale or transfer
of any Immaterial Subsidiary's Capital Stock or assets to the Borrower or any
other Loan Party or any Wholly-Owned Subsidiary;
(e) any Permitted Receivables Financing;
(f) Dispositions listed and described on Schedule 7.5 attached hereto;
(g) any Disposition of assets (i) from one Foreign Subsidiary to a
Foreign Subsidiary, (ii) from one Loan Party to another Loan Party or (iii) from
a Subsidiary to a Loan Party;
(h) the Disposition of other property not described in clauses (a) -
(g) above or (i)-(n) below for fair market value as long as (i) at least 75% of
the consideration consists of cash and cash equivalents and (ii) the aggregate
fair market value of such property so disposed of does not exceed the sum of (A)
25% of the Consolidated Total Assets of the Borrower as determined on the
Closing Date plus (B) the proceeds of all Reinvestment Deferred Amounts with
respect to Dispositions reinvested in the business of the Borrower and its
Subsidiaries after the Closing Date; provided, that neither the Borrower nor any
Subsidiary Guarantor shall make Dispositions, the proceeds of which are
reinvested in Subsidiaries that are not Subsidiary Guarantors, with respect to
property having an aggregate fair market value in excess of 25% of the
Consolidated Total Assets of the Borrower as determined on the Closing Date;
(i) (i) the Borrower or any of its Subsidiaries may transfer or
contribute ownership of the Capital Stock of any Foreign Subsidiary formed or
organized under the laws of (a) any European country or (b) any state, province,
district or other subdivision of any such country, in each case to Tenneco
Automotive Iberica, S.A.; and (ii) the Borrower or any of its Subsidiaries may
transfer or contribute ownership of the Capital Stock of any other Foreign
Subsidiary (i.e., Foreign Subsidiaries not described in the preceding clause
(i)) to the Borrower or a Subsidiary of the Borrower;
76
(j) the Borrower or any of its Subsidiaries may transfer or contribute
ownership of the Capital Stock of any Foreign Subsidiary or Joint Venture formed
or organized under the laws of (i) the People's Republic of China or (ii) any
state, province, district or other subdivision thereof in each case to a Wholly
Owned Subsidiary of the Borrower that is formed or organized under the laws of
(A) either the People's Republic of China or the United States or (B) any state,
province, district or other subdivision of either such country;
(k) the Borrower and its Subsidiaries may sell property pursuant to
Permitted Sale/Leasebacks;
(l) the Disposition of property as an Investment made pursuant to
Section 7.8(g) in any Joint Venture or in any Person who, prior to the
Investment, is not a Subsidiary and who becomes, as a result of the Investment,
a Subsidiary that is not a Wholly-Owned Subsidiary;
(m) the Disposition of the Capital Stock or assets of any Immaterial
Subsidiary (other than any Disposition permitted pursuant to clause (g) above);
and
(n) the sale by the Borrower and its Subsidiaries (i) of post-dated
checks in accordance with past practice of the Borrower and its Subsidiaries in
the People's Republic of China and (ii) bills of exchange in accordance with
past practice of the Borrower and its Subsidiaries in Europe.
Simultaneously with any transfer described in Section 7.5(i) or (j) of this
Agreement, the Lenders authorize the Administrative Agent to release the Lien on
and security interest created by the Loan Documents in the Capital Stock of the
Subsidiaries so transferred or contributed and authorize the Administrative
Agent to take any action reasonably requested by the Borrower to effect such
release.
Any Disposition made pursuant to clause (g)(i) or (i)(ii) above of Capital Stock
or assets of a Foreign Subsidiary the Capital Stock of which constitutes
Collateral under this Agreement shall be made for fair market value paid in
cash. All such cash in excess of an amount equal to $150,000,000 shall be
retained and/or reinvested in Loan Parties or in Foreign Subsidiaries the
Capital Stock of which constitutes Collateral under the Agreement.
7.6 Restricted Payments. Declare or pay any dividend (other than
dividends payable solely in common stock of the Person making such dividend) on,
or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any Capital Stock of the Borrower or any Subsidiary, whether now
or hereafter outstanding, or make any other distribution in respect thereof,
either directly or indirectly, whether in cash or property or in obligations of
the Borrower or any Subsidiary (collectively, "Restricted Payments"), except
that:
(a) any Subsidiary may make Restricted Payments to the Borrower, any
Subsidiary or to any other Person (ratably based on such other Person's equity
ownership in such Subsidiary) which owns Capital Stock of such Subsidiary;
(b) the Borrower may make Restricted Payments in an aggregate amount
not to exceed $20,000,000 in any fiscal year; provided that if, after giving
effect to a Restricted Payment
77
in a fiscal year, the pro forma Consolidated Leverage Ratio would be less than
3.25 to 1.0 (as calculated on the last day of the most recent fiscal quarter for
which financial statements are available), then the Borrower and its
Subsidiaries may make Restricted Payments in an aggregate amount not to exceed
$30,000,000 in such fiscal year; and provided further if, after giving effect to
a Restricted Payment, the pro forma Consolidated Leverage Ratio would be less
than 2.5 to 1.0 (as calculated on the last day of the most recent fiscal quarter
for which financial statements are available), then the Borrower and its
Subsidiaries may make Restricted Payments after the Closing Date in an aggregate
amount not to exceed the sum of $100,000,000 plus 50% of Consolidated Net Income
accruing from the Closing Date (it being understood that any Restricted Payment
permitted at the time it was made shall be deemed to be permitted
notwithstanding that the conditions specified in paragraph (b) for such
Restricted Payment may no longer be satisfied thereafter). No Restricted Payment
may be made pursuant to this paragraph (b) during a Default or Event of Default
other than Restricted Payments required pursuant to contractual obligations to
purchase Capital Stock or options of the Borrower or any Subsidiary from
officers or employees or former officers or employees of the Borrower and its
Subsidiaries; and
(c) the Borrower may withhold shares of Capital Stock of the Borrower
from, and pay personal payroll taxes of employees in respect of vested
restricted shares of, options to purchase and other equity incentive awards in
respect of, the Capital Stock of the Borrower.
7.7 [Intentionally Omitted]
7.8 Investments . Make any advance, loan, extension of credit (by way
of guaranty or otherwise) or capital contribution to, or purchase any Capital
Stock, bonds, notes, debentures or other debt securities of, or any assets
constituting a business unit of, or make any other investment in, any Person
(all of the foregoing, "Investments"), except:
(a) extensions of trade credit in the ordinary course of business;
(b) investments in Cash Equivalents;
(c) (i) Guarantee Obligations permitted by Section 7.2 and (ii)
Guarantee Obligations arising in the ordinary course of business with respect to
other obligations that do not constitute Indebtedness;
(d) loans and advances to employees of the Borrower or any Subsidiary
of the Borrower in the ordinary course of business (including for travel,
entertainment and relocation expenses) in an aggregate amount for the Borrower
or any Subsidiary of the Borrower not to exceed $10,000,000 at any one time
outstanding;
(e) Investments made by the Borrower or any of its Subsidiaries in the
Borrower or any of its Subsidiaries with the proceeds of any Reinvestment
Deferred Amount;
(f) intercompany Investments by the Borrower or any of its
Subsidiaries in the Borrower or any Person that, prior to such investment, is a
Subsidiary;
(g) Investments in Joint Ventures and in any Person who, prior to the
Investment, is not a Subsidiary and who becomes, as a result of the Investment,
a Subsidiary that is
78
not a Wholly-Owned Subsidiary in an aggregate amount not to exceed $125,000,000
in each fiscal year; provided, that (i) up to 50% of any such amount not so
invested in the period for which it is permitted may be carried over for
investment in the next succeeding fiscal year only and (ii) Investments made
pursuant to this clause (g) during any fiscal year (beginning with fiscal year
2008) shall be deemed made, first, in respect of amounts permitted for such
fiscal year as provided above and, second, in respect of amounts carried over
from the prior fiscal year pursuant to subclause (i) above;
(h) Investments in existence on the date hereof listed on Schedule
7.8(h), provided that no such Investment is increased except as permitted by the
other provisions of this Section 7.8;
(i) the Finance Subsidiary may execute and deliver one or more
subordinated promissory notes (having terms customary for similar notes issued
in transactions similar to a Permitted Receivables Financing) to the Borrower
and its Subsidiaries representing the deferred purchase price of receivables
sold to the Finance Subsidiary in a Permitted Receivables Financing, and the
Borrower and its Subsidiaries may contribute receivables and other assets of the
type referred to in the definition of "Permitted Receivables Financing" to the
capital of the Finance Subsidiary in connection with a Permitted Receivables
Financing;
(j) acquisitions as long as, after giving effect thereto, the pro
forma Consolidated Net Leverage Ratio would be less than 3.0 to 1.0 (it being
understood that the Borrower may utilize any remaining portion of the aggregate
amount described in the succeeding paragraph (k) to consummate an acquisition to
the extent the pro forma Consolidated Net Leverage Ratio would equal or exceed
3.0 to 1.0 after giving effect thereto);
(k) other acquisitions the aggregate consideration for which does not
exceed the sum of (i) $250,000,000, (ii) the Net Cash Proceeds of Qualified
Capital Stock of the Borrower issued after the Closing Date and (iii) the
portion of annual Excess Cash Flow (beginning with Excess Cash Flow for fiscal
year 2007) not required to be applied to the payment of the Facilities and not
used for other purposes;
(l) deposit accounts maintained in the ordinary course of business;
and
(m) in addition to Investments otherwise expressly permitted by this
Section, Investments by the Borrower or any of its Subsidiaries in an aggregate
amount (valued at cost) not to exceed $100,000,000 during the term of this
Agreement.
7.9 Optional Payments and Modifications of Senior Subordinated Notes.
(a) Make or offer to make any optional or voluntary payment, prepayment,
repurchase or redemption of or otherwise optionally or voluntarily defease or
segregate funds with respect to the Senior Subordinated Notes, (b) amend,
modify, waive or otherwise change, or consent or agree to any amendment,
modification, waiver or other change to, any of the terms of the Senior
Subordinated Notes or the Senior Subordinated Indenture (other than any such
amendment, modification, waiver or other change that (x) (i) would extend the
maturity or reduce the amount of any payment of principal thereof or reduce the
rate or extend any date for payment of interest thereon and (ii) does not
involve the payment of a consent fee or (y) is not adverse to the Lenders),
79
or (c) designate any Indebtedness (other than obligations of the Loan Parties
pursuant to the Loan Documents) as "Designated Senior Debt" for the purposes of
the Senior Subordinated Note Indenture. Notwithstanding the foregoing, as long
as no Default or Event of Default has occurred and is continuing the Borrower
may purchase and cancel or redeem (i) its Senior Subordinated Notes with the Net
Cash Proceeds of Permitted Refinancing Indebtedness or with the Net Cash
Proceeds of shares of common stock of the Borrower, in each case issued within
180 days prior to such purchase and cancellation or redemption, and (ii) its
Senior Subordinated Notes in an amount equal to the sum of (x) the Net Cash
Proceeds of Qualified Capital Stock issued by the Borrower after the Closing
Date plus (y) the portion of annual Excess Cash Flow (beginning with Excess Cash
Flow for fiscal year 2007) not required to be applied to payment of the
Facilities and which is not used for other purposes, provided that (x) the
aggregate principal amount of Senior Subordinated Notes purchased and cancelled
or redeemed pursuant to this clause (ii) and (y) the sum of the aggregate
principal amount of the Senior Subordinated Notes purchased and cancelled or
redeemed pursuant to this clause (ii) and the aggregate principal amount of
Second Lien Notes purchased and cancelled or redeemed pursuant to clauses (iv),
(v) and (vi) of the second sentence of Section 7.15 are capped as follows based
on the pro forma Consolidated Leverage Ratio after giving effect to such
purchase, cancellation or redemption:
Aggregate Senior Subordinated
PF Consolidated Senior Subordinated Notes and Second Lien Notes
Leverage Ratio Notes Maximum Amount Maximum Amount
--------------- -------------------- -----------------------------
Greater than or equal to 3.0x $ 50 million $150 million
Greater than or equal to 2.5x 100 million 300 million
Less than 2.5x 125 million 375 million
7.10 Transactions with Affiliates. Enter into or suffer to exist any
transaction, including any purchase, sale, lease or exchange of property, the
rendering of any service or the payment of any management, advisory or similar
fees, with any non-consolidated Affiliate unless such transaction is upon fair
and reasonable terms no less favorable to the Borrower or such Subsidiary, as
the case may be, than it would obtain in a comparable arm's length transaction
with a Person that is not a non-consolidated Affiliate.
7.11 Sales and Leasebacks. Enter into or suffer to exist any
arrangement with any Person providing for the leasing by the Borrower or any
Subsidiary of real or personal property that has been or is to be sold or
transferred in a related transaction by the Borrower or such Subsidiary to such
Person or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such property or rental obligations of the
Borrower or such Subsidiary except for such transactions entered into after the
date hereof as long as (i) the aggregate fair market value of the property sold
in connection therewith does not exceed $200,000,000, the consideration for each
such sale shall be cash, and such transactions are consummated on an arm's
length basis and the Net Cash Proceeds thereof are applied to prepay the Term
Loans and reduce the Total Tranche B-1 Credit Linked Deposit Amount as set forth
in Sections 2.13(b) and 2.19(b) or (ii) the transaction involves a lease with a
term of one year or less following the related sale (collectively, the
"Permitted Sale/Leasebacks") (the Borrower agreeing
80
that all Permitted Sale/Leasebacks shall be Asset Sales and the Lenders hereby
authorizing the Administrative Agent to release any Lien on or security
interests in any such property created by the Loan Documents upon consummation
of such Permitted Sale/Leasebacks). Notwithstanding anything to the contrary
contained herein, any Permitted Sale/Leasebacks shall be deemed to be expressly
permitted pursuant to each other provision of this Section 7 (other than
Sections 7.1 and 7.10) that would otherwise be construed to prohibit or restrict
such Permitted Sale/Leasebacks. In the event that the Borrower or a Subsidiary
enters into an operating lease in connection with a Permitted Sale/Leaseback,
then the Borrower shall deliver to the Administrative Agent at the time it or a
Subsidiary enters into such lease, a schedule setting forth the principal and
interest components of payments to be made under such lease as reasonably
determined by the Borrower.
7.12 Changes in Fiscal Periods. Permit the fiscal year of the Borrower
to end on a day other than December 31 or change the Borrower's method of
determining fiscal quarters.
7.13 Negative Pledge Clauses. Enter into or suffer to exist or become
effective any agreement that prohibits or limits the ability of the Borrower or
any of its Subsidiaries to create, incur, assume or suffer to exist any Lien
upon any of its property or revenues, whether now owned or hereafter acquired,
to secure its obligations under the Loan Documents to which it is a party other
than (a) this Agreement and the other Loan Documents, (b) any agreements
governing any purchase money Liens or Capital Lease Obligations otherwise
permitted hereby (in which case, any prohibition or limitation shall only be
effective against the assets financed thereby), (c) customary non-assignment
provisions of any contract and (d) customary restrictions on the creation of
Liens on any property or assets arising under a security agreement governing a
Lien permitted under this Agreement.
7.14 Lines of Business. Enter into any business, either directly or
through any Subsidiary, except for those businesses in which the Borrower and
its Subsidiaries are engaged on the date of this Agreement or that are
reasonably related thereto.
7.15 Optional Payments and Modifications of Second Lien Notes. (a)
Make or offer to make any optional or voluntary payment, prepayment, repurchase
or redemption of or otherwise optionally or voluntarily defease or segregate
funds with respect to the Second Lien Notes, or (b) amend, modify, waive or
otherwise change, or consent or agree to any amendment, modification, waiver or
other change to, any of the terms of the Second Lien Notes or the Second Lien
Note Indenture (other than any such amendment, modification, waiver or other
change that (i) (A) would extend the maturity or reduce the amount of any
payment of principal thereof or reduce the rate or extend any date for payment
of interest thereon and (B) does not involve the payment of a consent fee or
(ii) is not adverse to the holders of the First Priority Claims).
Notwithstanding the foregoing, as long as no Default or Event of Default has
occurred and is continuing, the Borrower may purchase and cancel or redeem its
Second Lien Notes (i) with the Net Cash Proceeds of Permitted Refinancing
Indebtedness or with the Net Cash Proceeds of shares of common stock of the
Borrower, in each case issued within 180 days prior to such purchase and
cancellation or redemption, (ii) with the Net Cash Proceeds of the Incremental
Facilities or Indebtedness incurred under Section 7.2(n), (iii) with the Net
Cash Proceeds of senior or subordinated unsecured Indebtedness of the Borrower
incurred after the Closing Date, which Indebtedness may be guaranteed by the
other Loan Parties on a senior or subordinated basis, as applicable, (iv) with
the proceeds of the Revolving Loans, (v) with the cash generated by the
operations of the Borrower
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and its Subsidiaries (and the Borrower shall concurrently with any purchase of
Second Lien Notes under this clause (v) deliver a certificate to the
Administrative Agent setting forth a calculation of such cash generated by
operations) and (vi) in an amount equal to the sum of (x) the Net Cash Proceeds
of Qualified Capital Stock issued by the Borrower after the Closing Date plus
(y) the portion of annual Excess Cash Flow (beginning with Excess Cash Flow for
fiscal year 2007) not required to be applied to payment of the Facilities and
which is not used for other purposes, provided that the aggregate principal
amount of Second Lien Notes purchased and cancelled or redeemed pursuant to
clauses (iv), (v) and (vi), together with the aggregate principal amount of
Senior Subordinated Notes purchased and cancelled or redeemed pursuant to clause
(ii) of the second sentence of Section 7.9, is capped as follows based on the
pro forma Consolidated Leverage Ratio after giving effect to such purchase,
cancellation or redemption:
PF Consolidated Leverage Ratio Aggregate Maximum Amount
- ------------------------------ ------------------------
Greater than or equal to 3.0x $150 million
Greater than or equal to 2.5x 300 million
Less than 2.5x 375 million
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or the
Borrower shall fail to pay any interest on any Loan or Reimbursement Obligation,
or any other amount payable hereunder or under any other Loan Document, within
five days after any such interest or other amount becomes due in accordance with
the terms hereof; or
(b) any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document or that is contained in any
certificate, document or financial or other written statement furnished by it at
any time under or in connection with this Agreement or any such other Loan
Document shall prove to have been inaccurate in any material respect on or as of
the date made or deemed made; or
(c) any Loan Party shall default in the observance or performance of
any agreement contained in clause (i) or (ii) of Section 6.4(a) (with respect to
the Borrower only), Section 6.7(a) or Section 7 of this Agreement or Sections
5.5 and 5.7(b) of the Guarantee and Collateral Agreement; or
(d) any Loan Party shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section), and such
default shall continue unremedied for a period of 30 days after notice to the
Borrower from the Administrative Agent or the Required Lenders; or
(e) the Borrower or any of its Subsidiaries shall (i) default in
making any payment of any principal of any Indebtedness (including any Guarantee
Obligation, but excluding
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the Loans) on the scheduled or original due date with respect thereto; or (ii)
default in making any payment of any interest on any such Indebtedness beyond
the period of grace, if any, provided in the instrument or agreement under which
such Indebtedness was created; or (iii) default in the observance or performance
of any other agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, in each case the
effect of which default or other event or condition is to cause, or to permit
the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf
of such holder or beneficiary) to cause, with the giving of notice if required,
such Indebtedness to become due prior to its stated maturity or (in the case of
any such Indebtedness constituting a Guarantee Obligation) to become payable;
provided, that a default, event or condition described in clause (i), (ii) or
(iii) of this paragraph (e) shall not at any time constitute an Event of Default
unless, at such time, one or more defaults, events or conditions of the type
described in clauses (i), (ii) and (iii) of this paragraph (e) shall have
occurred and be continuing with respect to Indebtedness the aggregate
outstanding principal amount of which exceeds in the aggregate $50,000,000 for
the Borrower and its Subsidiaries; or an event of default shall occur and be
continuing under the Senior Subordinated Note Indenture or the Second Lien Note
Indenture; or
(f) (i) the Borrower or any of its Subsidiaries (except for Immaterial
Subsidiaries) shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or the Borrower or any of its Subsidiaries shall
make a general assignment for the benefit of its creditors; or (ii) there shall
be commenced against the Borrower or any of its Subsidiaries (except for
Immaterial Subsidiaries) any case, proceeding or other action of a nature
referred to in clause (i) above that (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against the Borrower or any of its Subsidiaries (except for Immaterial
Subsidiaries) any case, proceeding or other action seeking issuance of a warrant
of attachment, execution, distraint or similar process against all or any
substantial part of its assets that results in the entry of an order for any
such relief that shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) the Borrower or
any of its Subsidiaries (except for Immaterial Subsidiaries) shall take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above;
or (v) the Borrower or any of its Subsidiaries (except for Immaterial
Subsidiaries) shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due; or
(g) (i) any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of the Borrower or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement
83
of proceedings or appointment of a trustee is, in the reasonable opinion of the
Required Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes
of Title IV of ERISA, (v) the Borrower or any Commonly Controlled Entity shall,
or in the reasonable opinion of the Required Lenders is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or condition
shall occur or exist with respect to a Plan; and in each case in clauses (i)
through (vi) above, such event or condition, together with all other such events
or conditions, if any, could, in the sole judgment of the Required Lenders,
reasonably be expected to have a Material Adverse Effect; or
(h) one or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving in the aggregate for the Borrower
and its Subsidiaries a liability (not paid or fully covered by insurance as to
which the relevant insurance company has acknowledged coverage) of $75,000,000
or more, and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 30 days from the entry
thereof; or
(i) any of the Security Documents shall cease, for any reason, to be
in full force and effect, or any Loan Party or any Affiliate of any Loan Party
shall so assert, or any Lien created by any of the Security Documents shall
cease to be enforceable and of the same effect and priority purported to be
created thereby if the aggregate value of the affected Collateral is more than
$5,000,000; or
(j) the guarantee contained in Section 2 of the Guarantee and
Collateral Agreement shall cease, for any reason, to be in full force and effect
or any Loan Party shall so assert; or
(k) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), shall become, or obtain rights (whether by means
or warrants, options or otherwise) to become, the "beneficial owner" (as defined
in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of
more than 25% of the outstanding common stock of the Borrower; or (ii) the board
of directors of the Borrower shall cease to consist of a majority of Continuing
Directors; or (iii) a Specified Change of Control shall occur; or
(l) the Senior Subordinated Notes or any guarantee thereof shall
cease, for any reason, to be validly subordinated to the Obligations or the
obligations of the Subsidiary Guarantors under the Guarantee and Collateral
Agreement, as the case may be, as provided in the Senior Subordinated Note
Indenture, or any Loan Party, any Affiliate of any Loan Party, the trustee in
respect of the Senior Subordinated Notes or the holders of at least 25% in
aggregate principal amount of the Senior Subordinated Notes shall so assert; or
(m) any Lien securing or purporting to secure the Second Priority
Claims shall cease, for any reason, to be subordinated to the Lien created under
the Loan Documents securing or purporting to secure the First Priority Claims,
as provided in the Intercreditor Agreement, or any Loan Party, any Affiliate of
any Loan Party, the trustee in respect of the Second Lien Notes or the holders
of at least 25% in aggregate principal amount of the Second Lien Notes shall so
assert; or the Borrower or any of its Subsidiaries shall make any payment,
prepayment, repurchase or
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redemption of or on the Second Lien Notes other than scheduled payments of
interest or as permitted by the last sentence of Section 7.15;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments and the Borrower's right to request the making of
a Tranche B-1 Loan or the issuance or extension of a Tranche B-1 Letter of
Credit or an increase to the stated amount thereof shall immediately terminate
and the Loans hereunder (with accrued interest thereon) and all other amounts
owing under this Agreement and the other Loan Documents (including all amounts
of L/C Obligations, whether or not the beneficiaries of the then outstanding
Letters of Credit shall have presented the documents required thereunder) shall
immediately become due and payable, and (B) if such event is any other Event of
Default, either or both of the following actions may be taken: (i) with the
consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower declare the Revolving Commitments and the Borrower's right to
request the making of a Tranche B-1 Loan or the issuance or extension of a
Tranche B-1 Letter of Credit or an increase to the stated amount thereof to be
terminated forthwith, whereupon the Revolving Commitments and the Borrower's
right to request the making of a Tranche B-1 Loan on the issuance or extension
of a Tranche B-1 Letter of Credit or an increase in the stated amount thereof
shall immediately terminate; and (ii) with the consent of the Required Lenders,
the Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) to be due and
payable forthwith, whereupon the same shall immediately become due and payable.
With respect to all Letters of Credit with respect to which presentment for
honor shall not have occurred at the time of an acceleration pursuant to this
paragraph, the Borrower shall at such time deposit in a cash collateral account
opened by the Administrative Agent an amount equal to the aggregate then undrawn
and unexpired amount of such Letters of Credit. Amounts held in such cash
collateral account shall be applied by the Administrative Agent to the payment
of drafts drawn under such Letters of Credit, and the unused portion thereof
after all such Letters of Credit shall have expired or been fully drawn upon, if
any, shall be applied to repay other obligations of the Borrower hereunder and
under the other Loan Documents. After all such Letters of Credit shall have
expired or been fully drawn upon, all Reimbursement Obligations shall have been
satisfied and all other obligations of the Borrower hereunder and under the
other Loan Documents shall have been paid in full, the balance, if any, in such
cash collateral account shall be returned to the Borrower (or such other Person
as may be lawfully entitled thereto). Except as expressly provided above in this
Section, presentment, demand, protest and all other notices of any kind are
hereby expressly waived by the Borrower.
SECTION 9. THE AGENTS
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action 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
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to the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
9.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither any Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from its or such Person's own gross negligence or willful misconduct)
or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Loan Party or any officer
thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agents under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of any Loan Party a party thereto to perform its obligations
hereunder or thereunder. The Agents shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
9.4 Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders (or, if so specified
by this Agreement, all Lenders) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense that may be incurred by it by reason of taking or continuing to take any
such action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Loan
Documents in accordance with a request of the Required Lenders (or, if so
specified by this
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Agreement, all Lenders), and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.
9.5 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender, the
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders (or, if so specified by this Agreement, all
Lenders); provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
9.6 Non-Reliance on Agents and Other Lenders. Each Lender expressly
acknowledges that neither the Agents nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by any Agent hereinafter
taken, including any review of the affairs of a Loan Party or any affiliate of a
Loan Party, shall be deemed to constitute any representation or warranty by any
Agent to any Lender. Each Lender represents to the Agents that it has,
independently and without reliance upon any Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its extensions of credit hereunder,
provide its Tranche B-1 Credit Linked Deposit Amount and enter into this
Agreement. Each Lender also represents that it will, independently and without
reliance upon any Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
any Loan Party or any affiliate of a Loan Party that may come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
9.7 Indemnification. The Lenders agree to indemnify each Agent in its
capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to their
respective Aggregate Exposure Percentages in effect on the date on which
indemnification is sought under this Section (or, if indemnification is sought
after the date upon which the Commitments shall have terminated and the Loans
shall have been paid in full, ratably in accordance with such Aggregate Exposure
Percentages 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
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(whether before or after the payment of the Loans) 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.
9.8 Agent in Its Individual Capacity. Each Agent and its affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with any Loan Party as though such Agent was not an Agent. With respect
to its Loans made or renewed by it and with respect to any Letter of Credit
issued or participated in by it, each Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not an Agent, and the terms "Lender" and
"Lenders" shall include each Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 20 days' notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 8(a) or Section
8(f) with respect to the Borrower shall have occurred and be continuing) be
subject to approval by the Borrower (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent
has accepted appointment as Administrative Agent by the date that is 20 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall assume and perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above. After any retiring Administrative Agent's
resignation as Administrative Agent, the provisions of this Section 9 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement and the other Loan Documents.
Upon the effectiveness of the retirement of any Administrative Agent, the
retiring Administrative Agent may, at its option (i) transfer the management of
all then existing Tranche B-1 Credit Linked Accounts to the successor
Administrative Agent or (ii) close all such Tranche B-1 Credit Linked Accounts
upon the establishment of new Tranche B-1 Credit Linked Accounts with the
successor Administrative Agent (and the successor Administrative Agent shall
establish such new accounts) and transfer all amounts on deposit in such Tranche
B-1 Credit Linked Accounts to such new accounts.
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9.10 Documentation Agents and Syndication Agent. Neither the
Documentation Agents nor the Syndication Agent shall have any duties or
responsibilities hereunder in their capacities as such.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. (a) Neither this Agreement, any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 10.1. The
Required Lenders and each Loan Party that is a party to the relevant Loan
Document may, or, with the written consent of the Required Lenders, the
Administrative Agent and each Loan Party that is a party to the relevant Loan
Document may, from time to time, (a) enter into written amendments, supplements
or modifications hereto and to the other Loan Documents for the purpose of
adding any provisions to this Agreement or the other Loan Documents or changing
in any manner the rights of the Lenders or of the Loan Parties hereunder or
thereunder or (b) waive, on such terms and conditions as the Required Lenders or
the Administrative Agent, as the case may be, may specify in such instrument,
any of the requirements of this Agreement or the other Loan Documents or any
Default or Event of Default and its consequences; provided, however, that no
such waiver and no such amendment, supplement or modification shall (i)
eliminate or reduce any voting rights under this Section 10.1, forgive the
principal amount or extend the final scheduled date of maturity of any Loan or
extend any L/C Participant's interest in the Issuing Lender's obligations and
rights under any Letter of Credit beyond the Revolving Termination Date or the
Tranche B-1 Settlement Date, extend the scheduled date of any amortization
payment in respect of any Term Loan, extend the date on which the Tranche B-1
Credit Linked Deposits are required to be returned in full to the Tranche B-1
Lenders, reduce the stated rate of any interest or fee payable hereunder or the
Tranche B-1 Fixed Return Rate (except (x) in connection with the waiver of
applicability of any post-default increase in interest rates and (y) that any
amendment or modification in the financial definitions in this Agreement shall
not constitute a reduction in the rate of interest or commitment fee for
purposes of this clause (i)) or the amount of return due to the Tranche B-1
Lenders pursuant to Section 2.4(d) or extend the scheduled date of any payment
thereof, increase the amount or extend the expiration date of any Lender's
Revolving Commitment or the Tranche B-1 Credit Linked Deposit Amount with
respect to any Lender, in each case without the consent of each Lender directly
affected thereby; (ii) reduce any percentage specified in the definition of
Required Lenders, consent to the assignment or transfer by the Borrower of any
of its rights and obligations under this Agreement and the other Loan Documents,
release all or substantially all of the Collateral or release all or
substantially all of the Subsidiary Guarantors from their obligations under the
Guarantee and Collateral Agreement, in each case without the consent of all
Lenders; (iii) amend, modify or waive any provision of Section 2.19 without the
consent of the Majority Facility Lenders in respect of each Facility adversely
affected thereby; (iv) reduce the amount of Net Cash Proceeds or Excess Cash
Flow required to be applied to prepay Loans under this Agreement without the
consent of the Majority Facility Lenders under each Facility adversely affected
thereby; (v) reduce the percentage specified in the definition of Majority
Facility Lenders with respect to any Facility without the consent of all Lenders
under such Facility; (vi) amend, modify or waive any provision of Section 9
without the consent of the Administrative Agent; (vii) amend, modify or waive
any provision of Section 2.8 or 2.9 without the consent of the Swingline Lender;
(ix) amend, modify or waive any provision of Section 3 without the consent of
the Issuing Lender; or (x) amend, modify or waive Section 2.4 (or any provision
or definition referred to
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therein) to the extent it adversely affects the Tranche B-1 Lenders without the
consent of the Majority Facility Lenders under the Tranche B-1 Facility (it
being agreed that, with the consent of the Required Lenders, additional
extensions of credit and tranches and increases in the amount of the Facilities
may be added to this Agreement and may share in any payments, prepayments,
Collateral and voting rights on a pro rata basis and corresponding amendments to
the Loan Documents may be made; provided that the consent of the Required
Lenders shall not be required in connection with any Incremental Facility). Any
such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Loan Parties, the
Lenders, the Administrative Agent and all future holders of the Loans. In the
case of any waiver, the Loan Parties, the Lenders and the Administrative Agent
shall be restored to their former position and rights hereunder and under the
other Loan Documents, and any Default or Event of Default waived shall be deemed
to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.
(b) Notwithstanding anything to the contrary in this Agreement,
(i) if the Borrower elects to extend the Revolving Termination Date,
it may do so by providing written notice to the Administrative Agent;
provided that
(A) no Revolving Lender shall be obligated to consent to such
extension;
(B) such extension shall be effective only if consented to by all
of the Revolving Lenders; and
(C) no such extension shall be permitted if, after giving effect
thereto and to any prepayments of the Revolving Loans and Swingline
Loans made on the effective date thereof, the Total Revolving
Extensions of Credit would exceed the Total Revolving Commitments,
and, in connection therewith, this Agreement and the other Loan Documents
may be amended from time to time with the consent of only the Majority
Facility Lenders in respect of the Revolving Facility, the Issuing Lender,
the Administrative Agent and the Borrower to the extent necessary to
implement the provisions of this clause (i) (including to reflect the
extension of the Revolving Termination Date); and
(ii) this Agreement may be amended with the written consent of only
the Administrative Agent, the Borrower and the Lenders providing the
relevant Replacement Term Loans (as defined below) to the extent necessary
to permit the refinancing of the entire Tranche B-1 Facility ("Refinanced
Facility") with a replacement "B" term loan tranche (including a synthetic
term loan tranche similar to the Tranche B-1 Facility hereunder)
("Replacement Term Loans"), provided that (a) the aggregate principal
amount of such Replacement Term Loans shall not exceed the aggregate
principal amount of such Refinanced Facility, (b) the Applicable Margin for
such Replacement Term Loans shall not be higher than the Applicable Margin
for such Refinanced Facility, (c) the weighted average life to maturity of
such Replacement Term Loans shall not be shorter than the
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weighted average life to maturity of such Refinanced Facility at the time
of such refinancing and (d) all other terms applicable to such Replacement
Term Loans shall be substantially identical to, or less favorable to the
Lenders providing such Replacement Term Loans than, those applicable to
such Refinanced Facility, except to the extent necessary to provide for
covenants and other terms applicable to any period after the Tranche B-1
Final Maturity Date and except that mandatory prepayments of the
Replacement Term Loans may be made ratably with the Tranche A Term Loans;
and
(iii) this Agreement and the other Loan Documents may be amended with
the written consent of only the Administrative Agent and the Borrower to
the extent necessary in order to evidence and implement the Incremental
Facilities pursuant to Section 2.27 and the increase in the Revolving
Facility pursuant to Section 2.6(c).
(c) The Borrower shall be permitted to replace any Lender that has not
consented to any amendment, modification, supplement or waiver of or to the Loan
Documents requested by the Borrower (a "Requested Amendment") which requires the
consent of each Lender, provided that (i) such replacement does not conflict
with any Requirement of Law, (ii) the Requested Amendment has been consented to
by the Supermajority Lenders (as defined below), (iii) the replacement financial
institution shall purchase, at par, all Loans and other amounts owing to such
replaced Lender on or prior to the date of replacement (and, if applicable, its
Tranche B-1 Credit Linked Deposit), (iv) the Borrower shall be liable to such
replaced Lender under Section 2.22 if any Eurodollar Loan owing to such replaced
Lender shall be purchased other than on the last day of the Interest Period
relating thereto, (v) the replacement financial institution, if not already a
Lender, shall be reasonably satisfactory to the Administrative Agent, (vi) the
replaced Lender shall be obligated to make such replacement in accordance with
the provisions of Section 10.6 (provided that the Borrower shall be obligated to
pay the registration and processing fee referred to therein, except to the
extent the replacement financial institution is already a Lender), (vii) the
replacement Lender shall consent to the Requested Amendment, (viii) until such
time as such replacement shall be consummated, the Borrower shall pay all
additional amounts (if any) required pursuant to Section 2.20 or 2.21(a), as the
case may be, and (ix) any such replacement shall not be deemed to be a waiver of
any rights that the Borrower, the Administrative Agent or any other Lender shall
have against the replaced Lender. As used herein, "Supermajority Lenders" means
the Required Lenders except that the percentage "50%" referred to therein shall
be deemed to be a reference to "66%".
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as set forth in an administrative questionnaire
delivered to the Administrative Agent in the case of the Lenders, or to such
other address as may be hereafter notified by the respective parties hereto:
The Borrower: Tenneco Inc.
500 North Field Drive
Lake Forest, IL 60045
Attention: John E. Kunz
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Telecopy: 847-482-5125
Telephone: 847-482-5000
with a copy to: Tenneco Inc.
500 North Field Drive
Lake Forest, IL 60045
Attention: General Counsel
Telecopy: 847-482-5040
Telephone: 847-482-5000
The Administrative Agent: 270 Park Avenue
New York, New York 10017
Attention: Richard W. Duker
Telecopy: 212-270-5127
Telephone: 212-270-3057
with a copy to: Loan and Agency Services Group
1111 Fannin, Floor 10
Houston, Texas 77002
Attention: Jennifer Anyigbo
Telecopy: 713-750-2782
Telephone: 713-750-2110
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders shall not be effective until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans and other extensions of credit hereunder.
10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation of the transactions contemplated
hereby and thereby, including the reasonable fees and disbursements of counsel
to the Administrative Agent and filing and recording fees and expenses, (b) to
pay or reimburse each Lender and the Administrative Agent for all its costs and
expenses incurred in
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connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents, including the
fees and disbursements of counsel (including the allocated fees and expenses of
in-house counsel) to each Lender and of counsel to the Administrative Agent, (c)
to pay, indemnify, and hold each Lender and the Administrative Agent harmless
from, any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and similar
taxes, if any, that may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and (d) to pay, indemnify, and hold
each Lender and the Administrative Agent and their respective officers,
directors, trustees, employees, affiliates, agents and controlling persons
(each, an "Indemnitee") harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including any
of the foregoing relating to the use of proceeds of the Loans or the violation
of, noncompliance with or liability under, any Environmental Law applicable to
the operations of the Borrower or any of its Subsidiaries or any of the
Properties and the reasonable fees and expenses of legal counsel in connection
with claims, actions or proceedings by any Indemnitee against any Loan Party
under any Loan Document (all the foregoing in this clause (d), collectively, the
"Indemnified Liabilities"), provided, that the Borrower shall have no obligation
hereunder to any Indemnitee with respect to Indemnified Liabilities to the
extent such Indemnified Liabilities are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of such Indemnitee. Without limiting the
foregoing, and to the extent permitted by applicable law, the Borrower agrees
not to assert and to cause its Subsidiaries not to assert, and hereby waives and
agrees to cause its Subsidiaries to so waive, all rights for contribution or any
other rights of recovery with respect to all claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or
nature, under or related to Environmental Laws, that any of them might have by
statute or otherwise against any Indemnitee. All amounts due under this Section
10.5 shall be payable promptly after written demand therefor. The agreements in
this Section 10.5 shall survive repayment of the Loans and all other amounts
payable hereunder.
10.6 Successors and Assigns; Participations and Assignments. (a) This
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Lenders, the Administrative Agent, all future holders of the Loans and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender (except in a transaction permitted by Section
7.4).
(b) Any Lender may, without the consent of the Borrower or the
Administrative Agent, in accordance with applicable law, at any time sell to one
or more banks, financial institutions or other entities (each, a "Participant")
participating interests in any Loan owing to such Lender, any Commitment of such
Lender, the Tranche B-1 Credit Linked Deposit Amount of such Lender or any other
interest of such Lender hereunder and under the other Loan Documents. In the
event of any such sale by a Lender of a participating interest to a Participant,
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such Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Loan for all purposes under this Agreement and the other Loan Documents, and the
Borrower and the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement and the other Loan Documents. In no event shall any Participant
under any such participation have any right to approve any amendment or waiver
of any provision of any Loan Document, or any consent to any departure by any
Loan Party therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Loans or any fees
payable hereunder, or postpone the date of the final maturity of the Loans, in
each case to the extent subject to such participation. The Borrower agrees that
if amounts outstanding under this Agreement and the Loans are due or unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall, to the maximum extent
permitted by applicable law, be deemed to have the right of setoff in respect of
its participating interest in amounts owing under this Agreement to the same
extent as if the amount of its participating interest were owing directly to it
as a Lender under this Agreement, provided that, in purchasing such
participating interest, such Participant shall be deemed to have agreed to share
with the Lenders the proceeds thereof as provided in Section 10.7(a) as fully as
if it were a Lender hereunder. The Borrower also agrees that each Participant
shall be entitled to the benefits of Sections 2.18, 2.19 and 2.20 with respect
to its participation in the Commitments and the Loans outstanding from time to
time as if it was a Lender; provided that, in the case of Section 2.19, such
Participant shall have complied with the requirements of said Section and
provided, further, that no Participant shall be entitled to receive any greater
amount pursuant to any such Section than the transferor Lender would have been
entitled to receive in respect of the amount of the participation transferred by
such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in accordance with applicable law,
at any time and from time to time assign to any Lender, any affiliate of any
Lender or any Lender Affiliate or, with the consent of the Borrower and the
Administrative Agent (which, in each case, shall not be unreasonably withheld or
delayed), to an additional bank, financial institution or other entity (an
"Assignee") all or any part of its rights and obligations under this Agreement
pursuant to an Assignment and Acceptance, executed by such Assignee, such
Assignor and any other Person whose consent is required pursuant to this
paragraph, and delivered to the Administrative Agent for its acceptance and
recording in the Register; provided that (i) no such assignment to an Assignee
(other than any Lender, any affiliate of any Lender or any Lender Affiliate)
shall be in an aggregate principal amount of less than $5,000,000 in the case of
Revolving Commitments, $1,000,000 in the case of Tranche A Term Loans or
$1,000,000 in the case of Tranche B-1 Credit Linked Deposit Amounts (provided
that assignments made by any Lender on the same day to an Assignee and its
affiliates (including any Lender Affiliates) and contemporaneous assignments by
Lender Affiliates to a single Assignee may be treated as a single assignment for
purposes of satisfying any such minimum assignment amount requirement (other
than in the case of an assignment of all of a Lender's interests under the
applicable Facility), (ii) after giving effect to any such assignment, such
Lender and its affiliates (including any Lender Affiliates) shall retain
Commitments, Term Loans and Tranche B-1 Credit Linked Deposit Amounts in an
aggregate principal amount of $5,000,000 in the case of Revolving Commitments,
$1,000,000 in the case of Tranche A Term Loans or $1,000,000 in the case of
Tranche B-1 Credit Linked Deposit Amounts (other than in the case of an
assignment of all of a Lender's interests under the applicable Facility),
94
in each case unless otherwise agreed by the Borrower and the Administrative
Agent, and (iii) no Lender may assign any interest in the Revolving Facility
(other than, with the consent of the Administrative Agent, not to be
unreasonably withheld or delayed, to an affiliate of such Lender or, to another
Lender then holding Revolving Commitments) without the consent of the
Administrative Agent, the Borrower, the Issuing Lender and the Swingline Lender
(not to be unreasonably withheld or delayed). For purposes of the proviso
contained in the preceding sentence, the amount described therein shall be
aggregated in respect of each Lender and its related Lender Affiliates, if any
(other than in the case of an assignment of all of a Lender's interests under
this Agreement). Any such assignment need not be ratable as among the
Facilities. Upon such execution, delivery, acceptance and recording, from and
after the effective date determined pursuant to such Assignment and Acceptance,
(x) the Assignee thereunder shall be deemed a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights and obligations of a
Lender hereunder with a Commitment and/or Loans as set forth therein, and (y)
the Assignor thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of an Assignor's rights and
obligations under this Agreement, such Assignor shall cease to be a party
hereto). Notwithstanding any provision of this Section 10.6, the consent of the
Borrower shall not be required for any assignment that occurs when an Event of
Default pursuant to Sections 8(a) or 8(f) shall have occurred and be continuing
with respect to the Borrower. Without the consent of the Borrower and the
Administrative Agent, the Tranche B-1 Credit Linked Deposit of any Tranche B-1
Lender shall not be released in connection with any assignment by such Tranche
B-1 Lender, but shall instead be purchased by the relevant assignee and continue
to be held for application (to the extent not already applied) in accordance
with Section 2.4 to satisfy such assignee's obligations in respect of Tranche
B-1 Exposure. Each Tranche B-1 Lender agrees that immediately prior to such
assignment (x) the Administrative Agent shall establish a new Tranche B-1 Credit
Linked Account in the name of such assignee, (y) unless otherwise consented to
by the Administrative Agent, a corresponding portion of the amount on deposit in
the Tranche B-1 Credit Linked Account of the assignor Tranche B-1 Lender shall
be purchased by the assignee and shall be transferred from the assignor's
Tranche B-1 Credit Linked Account to the assignee's Tranche B-1 Credit Linked
Account and (z) if after giving effect to such assignment the aggregate amount
of the Tranche B-1 Credit Linked Deposit Account of the assignor Tranche B-1
Lender shall be $0, the Administrative Agent shall close the Tranche B-1 Credit
Linked Account of such assignor Tranche B-1 Lender.
(d) Notwithstanding anything to the contrary contained herein, any
Lender which is a bank (a "Granting Bank") may grant to a special purpose
funding vehicle (an "SPC"), identified as such in writing from time to time by
the Granting Bank to the Administrative Agent and the Borrower, the option to
provide to the Borrower all or any part of any Loan which such Granting Bank
would otherwise be obligated to make to the Borrower pursuant to this Agreement;
provided, that (i) nothing herein shall constitute a commitment by any SPC to
make any Loan and (ii) if an SPC elects not to exercise such option or otherwise
fails to provide all or any part of such Loan, the Granting Bank shall be
obligated to make such Loan pursuant to the terms hereof. The making of a Loan
by an SPC hereunder shall utilize the Commitment of the Granting Bank to the
same extent, and as if, such Loan were made by such Granting Bank. Each party
hereto hereby agrees that no SPC shall be liable for any indemnity or similar
payment obligation hereunder (all liability for which shall remain with the
Granting Bank). In furtherance of the foregoing, each party hereto agrees (which
agreement shall survive termination of this Agreement) that in the
95
event of any such grant by a Granting Bank to an SPC of the option to provide to
the Borrower all or any part of its Loan, (i) such Granting Bank's obligations
under this Agreement to the other parties to this Agreement shall remain
unchanged and such Granting Bank shall remain solely responsible for the
performance of such obligations under this Agreement and the other Loan
Documents, (ii) such Granting Bank shall remain the holder of such Loan for all
purposes under this Agreement and the other Loan Documents and nothing contained
in this Section 10.6(d) is intended to excuse the Granting Bank from the full
performance of its obligations hereunder and thereunder or otherwise diminish
the duties and liabilities of the Granting Bank under this Agreement or the
other Loan Documents (other than it being understood that any payment obligation
on the part of such Granting Bank to make a Loan hereunder shall, if such Loan
is made by any SPC, be deemed to have been satisfied upon the making of such
Loan by such SPC), (iii) the Borrower and the Administrative Agent shall
continue to deal solely and directly with such Granting Bank in connection with
such Granting Bank's rights and obligations under this Agreement and the other
Loan Documents, (iv) in no event shall any SPC have any right to approve any
amendment or waiver of any provision of any Loan Document, or any consent to any
departure by any Loan Party therefrom, or be included in any determination of
the Required Lenders or the Majority Facility Lenders hereunder for any purpose,
(v) prior to the date that is one year and one day after the payment in full of
all outstanding commercial paper or other senior Indebtedness of any SPC, it
will not institute against, or join any other Person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this Section
10.6(d), any SPC may (X) with notice to, but without prior written consent of,
the Borrower and the Administrative Agent (subject, however, to the approval of
the financial institution as set forth below), assign all or a portion of its
interests in any Loan to the Granting Bank or to a financial institution
(previously approved in writing by the Borrower and the Administrative Agent)
providing liquidity and/or credit support to or for the account of such SPC to
support the funding or maintenance of the Loans and (Y) subject to Section 10.15
hereof, disclose on a confidential basis any non-public information relating to
its Loans to any rating agency as specifically provided for in Section 10.15
hereof. This Section 10.6 may not be amended without the prior written consent
of the SPC, the Borrower and the Administrative Agent.
(e) The Administrative Agent shall, on behalf of the Borrower,
maintain at its address referred to in Section 10.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Commitment of, and
the principal amount of the Loans owing to and the amount of the Tranche B-1
Credit Linked Deposit Amount of, each Lender from time to time. The entries in
the Register shall be conclusive, in the absence of manifest error, and the
Borrower, each other Loan Party, the Administrative Agent and the Lenders shall
treat each Person whose name is recorded in the Register as the owner of the
Loans and any Notes evidencing the Loans recorded therein and the Tranche B-1
Credit Linked Deposits Accounts for all purposes of this Agreement. Any
assignment of any Loan, whether or not evidenced by a Note or Tranche B-1 Credit
Linked Deposit Amount, shall be effective only upon appropriate entries with
respect thereto being made in the Register (and each Note shall expressly so
provide). Any assignment or transfer of all or part of a Loan evidenced by a
Note shall be registered on the Register only upon surrender for registration of
assignment or transfer of the Note evidencing such Loan, accompanied by a duly
executed Assignment and Acceptance, and thereupon one or more new Notes shall be
issued to the
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designated Assignee. The Register shall be available for inspection by any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(f) Upon its receipt of an Assignment and Acceptance executed by an
Assignor, an Assignee and any other Person whose consent is required by Section
10.6(c), together with payment to the Administrative Agent of a registration and
processing fee of $3,500 (which shall not be an obligation of the Borrower and
which shall be paid once in connection with simultaneous assignments for a
Lender and its affiliates (including any Lender Affiliates) if any), the
Administrative Agent shall (i) promptly accept such Assignment and Acceptance
and (ii) record the information contained therein in the Register on the
effective date determined pursuant thereto.
(g) The Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an administrative questionnaire in which the Assignee
designates one or more credit contacts to whom all syndicate-level information
(which may contain material non-public information about the Borrower and its
Affiliates and their related parties or their respective securities) will be
made available and who may receive such information in accordance with the
assignee's compliance procedures and applicable laws, including Federal and
state securities laws.
(h) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this Section 10.6 concerning assignments of Loans and
Notes and Tranche B-1 Credit Linked Deposit Amounts relate only to absolute
assignments and that such provisions do not prohibit assignments creating
security interests, including any pledge or assignment by a Lender of any Loan
or Note to any Federal Reserve Bank in accordance with applicable law.
(i) The Borrower, upon receipt of written notice from the relevant
Lender, agrees to issue Notes to any Lender requiring Notes to facilitate
transactions of the type described in paragraph (h) above.
10.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement expressly provides for payments to be allocated to a particular Lender
or to the Lenders under a particular Facility, if any Lender (a "Benefitted
Lender") shall, at any time after the Loans and other amounts payable hereunder
shall immediately become due and payable pursuant to Section 8, receive any
payment of all or part of the Obligations owing to it, or receive any collateral
in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant
to events or proceedings of the nature referred to in Section 8(f), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of the Obligations owing to
such other Lender, such Benefitted Lender shall purchase for cash from the other
Lenders a participating interest in such portion of the Obligations owing to
each such other Lender, or shall provide such other Lenders with the benefits of
any such collateral, as shall be necessary to cause such Benefitted Lender to
share the excess payment or benefits of such collateral ratably with each of the
Lenders; provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such Benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to the Borrower, any
such notice being expressly
97
waived by the Borrower to the extent permitted by applicable law, upon any
amount owing by the Borrower hereunder becoming due and payable (whether at the
stated maturity, by acceleration or otherwise) and remaining unpaid past any
applicable grace period, to set off and appropriate and apply against such
amount any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by such Lender or any branch or
agency thereof to or for the credit or the account of the Borrower, as the case
may be. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such setoff and application made by such Lender,
provided that the failure to give such notice shall not affect the validity of
such setoff and application.
10.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.
10.9 Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the State of
New York, the courts of the United States for the Southern District of New York,
and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or
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proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to the Borrower, as
the case may be at its address set forth in Section 10.2 or at such other
address of which the Administrative Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this Section any special, exemplary, punitive or consequential damages.
10.13 Acknowledgments. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between
Administrative Agent and Lenders, on one hand, and the Borrower, on the other
hand, in connection herewith or therewith is solely that of debtor and creditor;
and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Borrower and the Lenders.
10.14 Releases of Guarantees and Liens. (a) Notwithstanding anything
to the contrary contained herein or in any other Loan Document, the
Administrative Agent is hereby irrevocably authorized by each Lender (without
requirement of notice to or consent of any Lender except as expressly required
by Section 10.1) to take any action requested by the Borrower having the effect
of releasing any Collateral or guarantee obligations (i) to the extent necessary
to permit consummation of any transaction not prohibited by any Loan Document or
that has been consented to in accordance with Section 10.1 or (ii) under the
circumstances described in paragraph (b) below.
(b) At such time as the Loans, the Reimbursement Obligations and the
other obligations under the Loan Documents (other than obligations under or in
respect of Hedge Agreements and contingent indemnity obligations not due and
payable) shall have been paid in full, the Commitments have been terminated and
no Letters of Credit shall be outstanding, the Collateral shall be released from
the Liens created by the Security Documents, and the Security Documents and all
obligations (other than those expressly stated to survive such termination) of
the Administrative Agent and each Loan Party under the Security Documents shall
terminate, all without delivery of any instrument or performance of any act by
any Person.
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10.15 Confidentiality. Each of the Administrative Agent and each
Lender agrees to keep confidential all non-public information provided to it by
any Loan Party pursuant to this Agreement that is designated by such Loan Party
as confidential; provided that nothing herein shall prevent the Administrative
Agent or any Lender from disclosing any such information (a) to the
Administrative Agent, any other Lender, any affiliate of any Lender or any
Lender Affiliate, (b) to any pledgee required to in Section 10.6(h) or any
Transferee or prospective Transferee that agrees to comply with the provisions
of this Section, (c) to its employees, directors, agents, attorneys, accountants
and other professional advisors or those of any of its affiliates, (d) upon the
request or demand of any Governmental Authority, (e) in response to any order of
any court or other Governmental Authority or as may otherwise be required
pursuant to any Requirement of Law, (f) if requested or required to do so in
connection with any litigation or similar proceeding, (g) that has been publicly
disclosed, (h) to the National Association of Insurance Commissioners or any
similar organization or any nationally recognized rating agency that requires
access to information about a Lender's investment portfolio in connection with
ratings issued with respect to such Lender, (i) in connection with the exercise
of any remedy hereunder or under any other Loan Document or (j) to any direct or
indirect contractual counterparty in swap agreements or such contractual
counterparty's professional advisor (so long as such contractual counterparty or
professional advisor to such contractual counterparty agrees to be bound by the
provisions of this Section 10.15).
Each Lender acknowledges that information furnished to it pursuant to
this Agreement or the other Loan Documents may include material non-public
information concerning the Borrower and its Affiliates and their related parties
or their respective securities, and confirms that it has developed compliance
procedures regarding the use of material non-public information and that it will
handle such material non-public information in accordance with those procedures
and applicable law, including Federal and state securities laws.
All information, including requests for waivers and amendments,
furnished by the Borrower or the Administrative Agent pursuant to, or in the
course of administering, this Agreement or the other Loan Documents will be
syndicate-level information, which may contain material non-public information
about the Borrower and its Affiliates and their related parties or their
respective securities. Accordingly, each Lender represents to the Borrower and
the Administrative Agent that it has identified in its administrative
questionnaire a credit contact who may receive information that may contain
material non-public information in accordance with its compliance procedures and
applicable law, including Federal and state securities laws.
10.16 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.17 Effect of Amendment and Restatement of the Existing Credit
Agreement. (a) This Agreement shall be deemed to be an amendment to and
restatement of the Existing Credit Agreement and the Existing Credit Agreement
as amended and restated hereby shall remain in full force and effect and is
hereby ratified and confirmed in all respects. All extensions of credit under
the Existing Credit Agreement on the Closing Date shall remain outstanding
following the Closing
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Date as specified in Sections 2.26 and 3.1(c) and shall be continued under this
Agreement, as amended in the manner set forth herein. All references to the
Existing Credit Agreement in any other agreement or document shall, on and after
the Closing Date, be deemed to refer to the Existing Credit Agreement as amended
and restated hereby. The Borrower agrees, acknowledges and affirms that (i) each
of the Security Documents to which it is a party shall remain in full force and
effect and shall constitute security for all extensions of credit pursuant to
the Existing Credit Agreement as amended and restated hereby and (ii) any
reference to the Existing Credit Agreement appearing in any such Security
Document shall on and after the Closing Date be deemed to refer to the Existing
Credit Agreement as amended and restated hereby.
(b) On the Closing Date, each of the lenders party to the Existing
Credit Agreement and not continuing as a Lender hereunder hereby agrees that,
upon its acceptance of the outstanding amounts owed to it under the Existing
Credit Agreement on the Closing Date, such lender shall have consented to the
amendment and restatement of the Existing Credit Agreement as provided herein,
the redesignation of certain Loans and Commitments (each as defined in the
Existing Credit Agreement) set forth in Sections 2.26 and 3.1(c) hereof and the
assignment of the Loans and all other rights under the Existing Credit Agreement
to the extent necessary to give effect to such redesignation set forth in
Sections 2.26 and 3.1(c).
10.18 Covenant of the Tranche B-1 Lenders. Each Tranche B-1 Lender
represents and warrants, as to itself, to the Borrower that such Tranche B-1
Lender has not granted any Liens on any of the funds on deposit in its Tranche
B-1 Credit Linked Account and covenants for the benefit of the Borrower that
such Tranche B-1 Lender shall not grant any Lien on any such funds on deposit
but shall instead keep such funds free and clear of any Liens.
10.19 Waiver of Covenant Violations Under Existing Credit Agreement.
The Lenders hereby waive (i) any violation of any covenant set forth in Section
6 and Section 7 of the Existing Credit Agreement occurring prior to the Closing
Date (and any breach of any representation or warranty with respect to the
existence of a Default or Event of Default under such Sections) and (ii) any
Default or Event of Default that has occurred or would occur by virtue of any
such violation.
10.20 USA Patriot Act. Each Lender that is subject to the requirements
of the Patriot Act hereby notifies the Borrower and each Guarantor that pursuant
to the requirements of the Patriot Act, it is required to obtain, verify and
record information that identifies the Borrower, which information includes the
name and address of the Borrower and each Guarantor and other information that
will allow such Lender to identify the Borrower and each Guarantor in accordance
with the Patriot Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
TENNECO INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
JPMORGAN CHASE BANK, N.A., as
Administrative Agent and as a Lender
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
DEUTSCHE BANK SECURITIES INC., as
Syndication Agent and as a Lender
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
[Credit Agreement]
CITICORP NORTH AMERICA, INC.,
as Documentation Agent and as a Lender
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
BANK OF AMERICA, N.A.,
as Documentation Agent and as a Lender
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
THE ROYAL BANK OF SCOTLAND PLC,
as Documentation Agent and as a Lender
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
[Credit Agreement]
Annex A
PRICING GRID FOR REVOLVING LOANS,
SWINGLINE LOANS, COMMITMENT FEES
AND TRANCHE A TERM FACILITY
Applicable Margin Applicable Margin
for for Commitment
Consolidated Net Leverage Ratio Eurodollar Loans ABR Loans Fee Rate
------------------------------- ----------------- ----------------- -----------
Greater than or equal to 4.0 to 1.0 2.00% 1.00% .500%
Less than 4.0 to 1.0 and greater than or
equal to 3.5 to 1.0 1.75% 0.75% .375%
Less than 3.5 to 1.0 and greater than or
equal to 2.5 to 1.0 1.50% 0.50% .350%
Less than 2.5 to 1.0 1.25% 0.25% .300%
Changes in the Applicable Margin with respect to Revolving Loans, Swingline
Loans or Tranche A Term Loans or in the Commitment Fee Rate resulting from
changes in the Consolidated Net Leverage Ratio shall become effective on the
date (the "Adjustment Date") on which financial statements are delivered to the
Lenders pursuant to Section 6.1(a) or (b) (but in any event not later than the
45th day after the end of each of the first three quarterly periods of each
fiscal year or the 90th day after the end of each fiscal year, as the case may
be) and shall remain in effect until the next change to be effected pursuant to
this paragraph. If any financial statements referred to above are not delivered
within the time periods specified above, then, until such financial statements
are delivered, the Consolidated Net Leverage Ratio as at the end of the fiscal
period that would have been covered thereby shall for the purposes of this
definition be deemed to be greater than 4.0 to 1.0. In addition, at all times
while an Event of Default shall have occurred and be continuing, the
Consolidated Net Leverage Ratio shall for the purposes of this definition be
deemed to be greater than 4.0 to 1.0. Each determination of the Consolidated Net
Leverage Ratio pursuant to this pricing grid shall be made with respect to (or,
in the case of clause (a) of the definition thereof, as at the end of) the
period of four consecutive fiscal quarters of the Borrower ending at the end of
the period covered by the relevant financial statements.