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Exhibit 10.10
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LOAN AGREEMENT
Dated as of June 8, 2004,
among
BCP CRYSTAL HOLDINGS LTD. 2
BCP CAYLUX HOLDINGS LUXEMBOURG S.C.A.
THE LENDERS PARTY HERETO,
MORGAN STANLEY SENIOR FUNDING, INC.,
as Global Coordinator,
and
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent
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DEUTSCHE BANK SECURITIES INC.
and
MORGAN STANLEY SENIOR FUNDING, INC.,
as Joint Lead Arrangers
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TABLE OF CONTENTS
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ARTICLE I Definitions..........................................................................2
SECTION 1.01 Defined Terms..................................................................2
SECTION 1.02 Terms Generally...............................................................55
SECTION 1.03 Exchange Rates................................................................56
ARTICLE II The Loans...........................................................................56
SECTION 2.01 Loans.........................................................................56
SECTION 2.02 Loans and Borrowings..........................................................56
SECTION 2.03 Requests for Borrowings.......................................................57
SECTION 2.04 Funding of Borrowings.........................................................57
SECTION 2.05 Interest Elections............................................................58
SECTION 2.06 Termination of Commitments....................................................59
SECTION 2.07 Repayment; Evidence of Debt, etc..............................................59
SECTION 2.08 Repayment of Term Loans C.....................................................60
SECTION 2.09 Prepayments, etc..............................................................60
SECTION 2.10 Fees..........................................................................61
SECTION 2.11 Interest......................................................................61
SECTION 2.12 Alternate Rate of Interest....................................................62
SECTION 2.13 Increased Costs...............................................................62
SECTION 2.14 Break Funding Payments........................................................63
SECTION 2.15 Taxes.........................................................................63
SECTION 2.16 Payments Generally; Pro Rata Treatment; Sharing of Set-offs...................65
SECTION 2.17 Mitigation Obligations; Replacement of Lenders................................66
SECTION 2.18 Additional Reserve Costs......................................................67
SECTION 2.19 Illegality....................................................................67
ARTICLE III Representations and Warranties......................................................68
SECTION 3.01 Organization; Powers..........................................................68
SECTION 3.02 Authorization.................................................................68
SECTION 3.03 Enforceability................................................................68
SECTION 3.04 Governmental Approvals........................................................69
SECTION 3.05 Financial Statements..........................................................69
SECTION 3.06 No Material Adverse Effect....................................................69
SECTION 3.07 Title to Properties; Possession Under Leases..................................69
SECTION 3.08 Subsidiaries..................................................................70
SECTION 3.09 Litigation; Compliance with Laws..............................................71
SECTION 3.10 Federal Reserve Regulations...................................................71
SECTION 3.11 Investment Company Act; Public Utility Holding Company Act....................71
SECTION 3.12 Use of Proceeds...............................................................71
SECTION 3.13 Tax Returns...................................................................71
SECTION 3.14 No Material Misstatements.....................................................72
SECTION 3.15 Employee Benefit Plans........................................................72
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TABLE OF CONTENTS
(continued)
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SECTION 3.16 Environmental Matters.........................................................73
SECTION 3.17 Security Documents............................................................74
SECTION 3.18 Location of Real Property and Leased Premises.................................74
SECTION 3.19 Solvency......................................................................75
SECTION 3.20 Labor Matters.................................................................75
SECTION 3.21 Insurance.....................................................................75
ARTICLE IV Conditions of Lending...............................................................76
SECTION 4.01 Conditions....................................................................76
ARTICLE V Affirmative Covenants...............................................................78
SECTION 5.01 Existence; Businesses and Properties..........................................78
SECTION 5.02 Insurance.....................................................................79
SECTION 5.03 Taxes.........................................................................80
SECTION 5.04 Financial Statements, Reports, etc............................................80
SECTION 5.05 Litigation and Other Notices..................................................83
SECTION 5.06 Compliance with Laws..........................................................83
SECTION 5.07 Maintaining Records; Access to Properties and Inspections.....................83
SECTION 5.08 Use of Proceeds...............................................................83
SECTION 5.09 Compliance with Environmental Laws............................................83
SECTION 5.10 Further Assurances; Additional Mortgages......................................84
SECTION 5.11 Fiscal Year; Accounting.......................................................86
SECTION 5.12 Restructuring Date............................................................86
ARTICLE VI Negative Covenants..................................................................86
SECTION 6.01 Limitation on Incurrence of Indebtedness and Issuance of Preferred Stock......86
SECTION 6.02 Limitation On Restricted Payments.............................................91
SECTION 6.03 Dividend and Other Payment Restrictions Affecting Subsidiaries................98
SECTION 6.04 Asset Sales...................................................................99
SECTION 6.05 Transaction With Affiliates..................................................100
SECTION 6.06 Consolidation, Merger or Sale of Assets of the Borrower......................102
SECTION 6.07 Consolidation, Merger or Sale of Assets by a Guarantor.......................103
SECTION 6.08 Liens........................................................................104
SECTION 6.09 Limitation on Modifications and Prepayments..................................107
SECTION 6.10 Interest Coverage Ratio......................................................108
SECTION 6.11 Total Leverage Ratio.........................................................108
SECTION 6.12 Bank Leverage Ratio..........................................................108
SECTION 6.13 Business Activities..........................................................108
ARTICLE VII Events of Default..................................................................109
SECTION 7.01 Events of Default............................................................109
SECTION 7.02 Holdings' Right to Cure......................................................111
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TABLE OF CONTENTS
(continued)
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SECTION 7.03 Clean-Up Period..............................................................112
ARTICLE VIII The Agents.........................................................................112
SECTION 8.01 Appointment..................................................................112
SECTION 8.02 Nature of Duties.............................................................113
SECTION 8.03 Resignation by the Agents....................................................114
SECTION 8.04 The Administrative Agent in Its Individual Capacity..........................114
SECTION 8.05 Indemnification..............................................................114
SECTION 8.06 Lack of Reliance on Agents...................................................115
ARTICLE IX Miscellaneous......................................................................115
SECTION 9.01 Notices......................................................................115
SECTION 9.02 Survival of Agreement........................................................116
SECTION 9.03 Binding Effect...............................................................116
SECTION 9.04 Successors and Assigns.......................................................116
SECTION 9.05 Expenses; Indemnity..........................................................119
SECTION 9.06 Right of Set-off.............................................................120
SECTION 9.07 Applicable Law...............................................................120
SECTION 9.08 Waivers; Amendment...........................................................121
SECTION 9.09 Interest Rate Limitation.....................................................123
SECTION 9.10 Entire Agreement.............................................................123
SECTION 9.11 WAIVER OF JURY TRIAL.........................................................123
SECTION 9.12 Severability.................................................................123
SECTION 9.13 Counterparts.................................................................123
SECTION 9.14 Headings.....................................................................124
SECTION 9.15 Jurisdiction; Consent to Service of Process..................................124
SECTION 9.16 Confidentiality..............................................................125
SECTION 9.17 Conversion of Currencies.....................................................125
SECTION 9.18 Release of Liens and Guarantees..............................................125
SECTION 9.19 Parallel Debt................................................................126
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EXHIBITS AND SCHEDULES
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Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Borrowing Request
Exhibit C Form of U.S. Collateral Agreement
Exhibit D Form of Holdings Agreement
Exhibit E Form of Parent Agreement
Exhibit F Reserve Costs for Mandatory Costs Rate
Exhibit G Form of Solvency Certificate
Exhibit H Form of Real Property Officers' Certificate
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TABLE OF CONTENTS
(continued)
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Schedule 1.01(a) Collateral and Guarantee Requirements
Schedule 1.01(h) Excluded Subsidiaries
Schedule 2.01 Commitments
Schedule 3.01 Organization
Schedule 3.04 Governmental Approvals
Schedule 3.08(a) Closing Date Structure
Schedule 3.08(b) Subsidiaries
Schedule 3.08(c) Subscriptions
Schedule 3.09 Litigation
Schedule 3.13 Taxes
Schedule 3.16 Environmental
Schedule 3.18 Real Property
Schedule 3.20 Labor Matters
Schedule 3.21 Insurance
Schedule 5.12 Real Property Mortgages
Schedule 6.08(a) Liens
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LOAN AGREEMENT dated as of June 8, 2004 (this "AGREEMENT"), among BCP
CRYSTAL HOLDINGS LTD. 2, a company incorporated with limited liability under the
laws of the Cayman Islands ("HOLDINGS"), BCP CAYLUX HOLDINGS LUXEMBOURG S.C.A.,
a corporate partnership limited by shares (societe en commandite par actions)
organized under the laws of Luxembourg ("PARENT"), the LENDERS party hereto from
time to time, MORGAN STANLEY SENIOR FUNDING, INC. ("MORGAN STANLEY"), as global
coordinator (in such capacity, the "GLOBAL COORDINATOR"), DEUTSCHE BANK AG, NEW
YORK BRANCH ("DBNY"), as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT") and as collateral agent (in such capacity, the
"COLLATERAL AGENT") for the Lenders, and DEUTSCHE BANK SECURITIES INC. and
MORGAN STANLEY SENIOR FUNDING, INC., as joint lead arrangers (in such capacity,
the "JOINT LEAD ARRANGERS").
W I T N E S S E T H :
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WHEREAS, Blackstone Capital Partners (Cayman) IV L.P. and its
affiliates or any other investment vehicle controlled by any of them
(collectively "BLACKSTONE") have directly or indirectly formed (i) Holdings,
(ii) Parent, all of the Equity Interests (as hereinafter defined) of which are
owned directly or indirectly by Holdings, (iii) BCP Crystal US Holdings Corp.
("US HOLDCO"), a wholly-owned subsidiary of Parent organized under the laws of
Delaware, (iv) BCP Holdings GmbH ("LP GmbH"), a wholly-owned subsidiary of
Parent organized under the laws of Germany, (v) BCP Acquisition GmbH & Co. KG
("MIDCO"), all of the limited partnership interests of which are owned by LP
GmbH, organized under the laws of Germany, (vi) BCP Crystal Acquisition GmbH &
Co. KG ("BIDCO"), all of the limited partnership interests of which are owned by
Midco, organized under the laws of Germany and (vii) BCP Management GmbH ("GP
GmbH"), a wholly-owned subsidiary of Parent and the general partner of Midco and
Bidco, organized under the laws of Germany;
WHEREAS, Bidco has completed a tender offer (the "OFFER") for all the
issued capital stock of Celanese AG (the "COMPANY"), a stock corporation
organized under the laws of Germany, and has acquired 84.3% of such capital
stock pursuant thereto (excluding treasury shares);
WHEREAS, in connection with the consummation of the Offer, Holdings
contributed to Parent, directly or indirectly through the Intermediate Holdcos
(as hereinafter defined), if any, as a capital contribution (made in the form of
common equity for approximately 1% of such capital contribution and Parent CPECs
(as hereinafter defined) for the remainder of such capital contribution), the
net proceeds (including net of certain fees and expenses to be paid directly by
Holdings) of the equity contributed indirectly by Blackstone and the other
Permitted Investors in Holdings (the "HOLDCO EQUITY FINANCING");
WHEREAS, in connection with the consummation of the Offer, Parent
borrowed senior subordinated loans under a bridge facility (the "SENIOR
SUBORDINATED BRIDGE C FACILITY"), which bridge loans are to be refinanced by the
issuance of Senior Subordinated Notes (as hereinafter defined) on the Closing
Date (as hereinafter defined);
WHEREAS, in connection with the consummation of the Offer, Parent
borrowed senior subordinated loans under a bridge facility (the "SENIOR
SUBORDINATED BRIDGE
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B FACILITY"), which bridge loans are to be refinanced on the Closing Date in
part by the Term Loans C made hereunder and in part by Senior Subordinated
Notes;
WHEREAS, under the Credit Agreement (as hereinafter defined) Parent
may borrow (in Dollars and Euros) up to approximately $607 million of CA Term
Loans (as hereinafter defined);
WHEREAS, Parent, with the net proceeds of the financings described in
the previous recitals and concurrently with Parent's receipt thereof, (i)
on-loaned a portion to Celanese Americas Corporation ("CAC") by way of the CAC
Loans (as hereinafter defined), (ii) on-loaned a further portion to Bidco by way
of the Bidco Loan (as hereinafter defined), (iii) on-loaned a further portion to
Midco, by way of an intercompany loan, (iv) on-loaned a further portion to LP
GmbH, by way of an intercompany loan, (v) contributed a further portion of such
proceeds to LP GmbH as an equity contribution and (vi) retained the remainder of
such proceeds pending application in accordance with Section 3.12 of the Senior
Subordinated Bridge C Loan Agreement (as hereinafter defined); LP GmbH
contributed the proceeds so received by it (less any amount retained by it to
service interest payments for one year) to Midco as an equity contribution; and
Midco contributed the proceeds it receives from Parent (less any amount retained
by it to service interest payments for one year) and LP GmbH to Bidco as an
equity contribution; and
WHEREAS, the obligations of Parent under this Agreement will be
supported by (i) a guarantee from Holdings and the Intermediate Holdcos (secured
on and after the Restructuring Date (as hereinafter defined) by a silent second
pledge of all of the issued Equity Interests of Parent); (ii) pledges of the
Bidco Loan and of all of the shares in the Company acquired by Bidco, such
pledges to terminate on the Restructuring Date and (iii) on and after the
Restructuring Date by secured (on a silent second basis) guarantees from all
Domestic Subsidiary Loan Parties (as hereinafter defined).
NOW, THEREFORE, the Lenders are willing to make the Term Loans C to
the Borrower on the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINED TERMS. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR BORROWING" shall mean a Borrowing comprised of ABR Loans.
"ABR LOAN" shall mean any Term Loan C bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ACQUIRED DEBT" shall mean with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time
such other Person is merged with or into or became a Restricted
Subsidiary of such specified Person, and
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(2) Indebtedness secured by an existing Lien encumbering
any asset acquired by such specified Person,
but excluding in any event Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into, or becoming a
Restricted Subsidiary of, such specified Person.
"ADDITIONAL MORTGAGE" shall have the meaning assigned to such term in
Section 5.10(c).
"ADJUSTED LIBO RATE" shall mean, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the result of dividing (a) the
LIBO Rate in effect for such Interest Period by (b) 1.00 minus the Statutory
Reserves applicable to such Eurocurrency Borrowing, if any.
"ADMINISTRATIVE AGENT" shall have the meaning assigned to such term in
the introductory paragraph of this Agreement.
"ADMINISTRATIVE AGENT FEES" shall have the meaning assigned to such
term in Section 2.10.
"AFFILIATE" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"AFFILIATE TRANSACTION" shall have the meaning assigned to such term
in Section 6.05.
"AGENTS" shall mean, initially, the Administrative Agent and the
Collateral Agent.
"AGREEMENT" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"AGREEMENT CURRENCY" shall have the meaning assigned to such term in
Section 9.17(b).
"ALTERNATE BASE RATE" shall mean, for any day, a rate per annum equal
to the greater of (a) the Prime Rate and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. If for any reason the Administrative Agent
shall have determined (which determination shall be conclusive absent manifest
error) that it is unable to ascertain the Federal Funds Effective Rate,
including the failure of the Federal Reserve Bank of New York to publish rates
or the inability of the Administrative Agent to obtain quotations in accordance
with the terms thereof, the Alternate Base Rate shall be determined without
regard to clause (b) of the preceding sentence until the circumstances giving
rise to such inability no longer exist. Any change in the Alternate Base Rate
due to a change in the Prime Rate or the Federal Funds Effective Rate shall be
effective on the effective date of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively.
"ALTERNATE PLEDGE AGREEMENT" shall mean a pledge agreement in form and
substance reasonably satisfactory to the Administrative Agent and the Borrower
effecting the
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silent second pledge under local law of not in excess of 65% of the issued and
outstanding Equity Interests of a Foreign Subsidiary in support of the
Obligations of the Domestic Subsidiary Loan Party which is the owner of such
Equity Interests.
"APPLICABLE MARGIN" shall mean (i) for any day prior to the
Restructuring Date, with respect to (x) any Eurocurrency Loan, 4.25% per annum,
and (y) any ABR Loan 3.25% per annum and (ii) for any day on and after the
Restructuring Date, with respect to (x) any Eurocurrency Loan, 3.50% per annum,
and (y) any ABR Loan 2.50% per annum.
"APPROVED FUND" shall mean any person (other than a natural person)
that is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course and that is administered,
managed or advised by a Lender, an Affiliate of a Lender or an entity (including
an investment advisor) or an Affiliate of such entity that administers, manages
or advises a Lender.
"ASSET ACQUISITION" shall mean any Permitted Business Acquisition, the
aggregate consideration for which exceeds $15.0 million, and, if effected, the
Designated Acquisition.
"ASSET DISPOSITION" shall mean any sale, transfer or other disposition
by Holdings or any of the Subsidiaries to any person other than Holdings or any
Subsidiary to the extent otherwise permitted hereunder of any asset or group of
related assets (other than inventory or other assets sold, transferred or
otherwise disposed of in the ordinary course of business) in one or a series of
related transactions, the Net Proceeds from which exceed $35.0 million.
"ASSET SALE" shall mean:
(1) the sale, conveyance, transfer or other disposition
(whether in a single transaction or a series of related transactions)
of property or assets of the Borrower or any Restricted Subsidiary
(each referred to in this definition as a "disposition"); or
(2) the issuance or sale of Equity Interests of any
Restricted Subsidiary (whether in a single transaction or a series of
related transactions),
in each case other than:
(a) a disposition of Cash Equivalents or obsolete or worn out
property or equipment in the ordinary course of business or inventory (or
other assets) held for sale in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of
the Borrower in a manner permitted pursuant to Section 6.06 or any
disposition that constitutes a Change of Control;
(c) any Restricted Payment or Permitted Investment that is
permitted to be made, and is made, pursuant to Section 6.02;
(d) any disposition of assets or issuance or sale of Equity
Interests of any Restricted Subsidiary in any transaction or series of
transactions with an aggregate Fair Market Value of less than $10.0
million;
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(e) any disposition of property or assets or issuance of
securities by a Restricted Subsidiary to the Borrower or by the Borrower or
a Restricted Subsidiary to another Restricted Subsidiary;
(f) the lease, assignment or sublease of any real or personal
property in the ordinary course of business;
(g) any sale of Equity Interests in, or Indebtedness or other
securities of, an Unrestricted Subsidiary (with the exception of
Investments in Unrestricted Subsidiaries acquired pursuant to clause (1) of
the definition of "Permitted Investments");
(h) sales of assets received by the Borrower or any Restricted
Subsidiary upon foreclosure on a Lien;
(i) sales of Securitization Assets and related assets of the type
specified in the definition of "Securitization Financing" to a
Securitization Subsidiary in connection with any Qualified Securitization
Financing;
(j) a transfer of Securitization Assets and related assets of the
type specified in the definition of "Securitization Financing" (or a
fractional undivided interest therein) by a Securitization Subsidiary in a
Qualified Securitization Financing;
(k) any exchange of assets for assets related to a Permitted
Business of comparable market value, as determined in good faith by the
Borrower, which in the event of an exchange of assets with a fair market
value in excess of (1) $20.0 million shall be evidenced by a certificate of
a Responsible Officer of the Borrower, and (2) $40.0 million shall be set
forth in a resolution approved in good faith by at least a majority of the
Board of Directors of the Borrower; and
(l) the sale of all or substantially all of the Equity Interests
of, or assets of, Celanese Advanced Materials, Inc. for gross cash
consideration of at least $13 million.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent and the Borrower (if required by such assignment and acceptance),
substantially in the form of EXHIBIT A or such other form as shall be approved
by the Administrative Agent.
"BANK LEVERAGE RATIO" shall mean, on any date, the ratio of (a)
Consolidated Net Bank Debt as of such date to (b) CA EBITDA for the period of
four consecutive fiscal quarters of Holdings most recently ended as of such
date, all determined on a consolidated basis in accordance with US GAAP,
provided that to the extent any Asset Disposition or any Asset Acquisition (or
any Similar Transaction) or incurrence or repayment of Indebtedness (excluding
normal fluctuations in revolving Indebtedness incurred for working capital
purposes) has occurred during the relevant Test Period, CA EBITDA shall be
determined for the respective Test Period on a Pro Forma Basis for such
occurrences.
"BIDCO" shall have the meaning assigned to such term in the first
recital of this Agreement.
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"BIDCO LOAN" shall mean the loan of all the proceeds of the Senior
Subordinated Bridge B Loans made by Parent to Bidco.
"BIDCO PLEDGE" shall mean one or more Pledge Agreements executed by
(i) Bidco and DBNY as collateral agent (or any successor or replacement
collateral agent), pursuant to which Bidco has granted a security interest on
all shares of capital stock of the Company owned by Bidco and (ii) Parent and
DBNY as collateral agent (or any successor or replacement collateral agent),
pursuant to which Parent has granted a security interest on the Bidco Loan, in
each case to secure the Obligations, as the same may be amended, supplemented or
otherwise modified from time to time, with the Bidco Pledge to terminate on the
Restructuring Date.
"BLACKSTONE" shall have the meaning assigned to such term in the first
recital of this Agreement.
"BOARD" shall mean the Board of Governors of the Federal Reserve
System of the United States of America.
"BOARD OF DIRECTORS" shall mean (a) with respect to a corporation, the
board of directors of the corporation; (b) with respect to a partnership
(including a SOCIETE EN COMMANDITE PAR ACTIONS), the Board of Directors of the
general partner or manager of the partnership; and (c) with respect to any other
Person, board or committee of such Person serving a similar function.
"BORROWER" shall mean and include (x) if prior to the Restructuring
Date, Parent or (y) on and after the Restructuring Date, US Holdco.
"BORROWING" shall mean a group of Term Loans C of a single Type and
made, extended or converted on a single date and, in the case of Eurocurrency
Loans, as to which a single Interest Period is in effect.
"BORROWING MINIMUM" shall mean $5.0 million.
"BORROWING MULTIPLE" shall mean $1.0 million.
"BORROWING REQUEST" shall mean a request by a Borrower in accordance
with the terms of Section 2.03 and substantially in the form of EXHIBIT B.
"BUSINESS DAY" shall mean any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; PROVIDED that when used in connection with a
Eurocurrency Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in deposits in the applicable currency in the
London interbank market.
"CA CLOSING DATE" shall mean April 6, 2004.
"CA COLLATERAL AGENT" shall mean DBNY as Collateral Agent under the CA
Collateral Agreement.
"CA COLLATERAL AGREEMENT" shall mean the U.S. Collateral Agreement as
defined in the Credit Agreement.
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"CA CONSOLIDATED NET INCOME" shall mean, with respect to any person
for any period, the aggregate of the Net Income of such person and its
subsidiaries for such period, on a consolidated basis; PROVIDED, HOWEVER, that
(i) any net after-tax extraordinary, special (to the extent
reflected as a separate line item on a consolidated income statement
prepared in accordance with US GAAP on a basis consistent with historical
practices) or non-recurring gain or loss (less all fees and expenses
relating thereto) or income or expense or charge including, without
limitation, any severance expense, and fees, expenses or charges related to
any offering of Equity Interests of Holdings, any Investment, acquisition
or Indebtedness permitted to be incurred hereunder (in each case, whether
or not successful), including all fees, expenses, charges or change in
control payments related to the Transaction (including, without limitation,
all Transaction Costs), in each case shall be excluded; PROVIDED that, with
respect to each non-recurring item, Holdings shall have delivered to the
Administrative Agent an officers' certificate specifying and quantifying
such item and stating that such item is a non-recurring item,
(ii) any net after-tax income or loss from discontinued operations
and any net after-tax gain or loss on disposal of discontinued operations
shall be excluded,
(iii) any net after-tax gain or loss (less all fees and expenses or
charges relating thereto) attributable to business dispositions or asset
dispositions other than in the ordinary course of business (as determined
in good faith by the Board of Directors of Holdings) shall be excluded,
(iv) any net after-tax income or loss (less all fees and expenses
or charges relating thereto) attributable to the early extinguishment of
indebtedness shall be excluded,
(v) (A) the Net Income for such period of any person that is not a
subsidiary of such person, or that is accounted for by the equity method of
accounting, shall be included only to the extent of the amount of dividends
or distributions or other payments in respect of equity paid in cash (or to
the extent converted into cash) to such person or a subsidiary thereof in
respect of such period, but excluding any such dividend, distribution or
payment in respect of equity that funds a JV Reinvestment, and (B) the Net
Income for such period shall include any dividend, distribution or other
payment in respect of equity in cash received from any person in excess of
the amounts included in clause (A), but excluding any such dividend,
distribution or payment that funds a JV Reinvestment,
(vi) the Net Income for such period of any subsidiary of such
person shall be excluded to the extent that the declaration or payment of
dividends or similar distributions by such subsidiary of its Net Income is
not at the date of determination permitted without any prior governmental
approval (which has not been obtained) or, directly or indirectly, by the
operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule, or governmental regulation
applicable to that subsidiary or its stockholders, unless such restriction
with respect to the payment of dividends or in similar distributions has
been legally waived (PROVIDED that the net loss of any such subsidiary
shall be included), provided that such Net Income shall be included to the
extent (and only to the extent) such subsidiary may (without violation of
law or binding contractual arrangements) make loans and/or
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advances to its parent corporation (which corporation may in turn dividend,
loan and/or advance the proceeds of such loans or advances to its parent
corporation and so on for all parents until reaching the Borrower) and/or
to the Borrower,
(vii) CA Consolidated Net Income for such period shall not include
the cumulative effect of a change in accounting principles during such
period,
(viii) an amount equal to the amount of Tax Distributions actually
made to the holders of capital stock of Holdings in respect of the net
taxable income allocated by such person to such holders for such period to
the extent funded by the Borrower shall be included as though such amounts
had been paid as income taxes directly by such person,
(ix) any increase in amortization or depreciation or any one-time
noncash charges (such as purchased in-process research and development or
capitalized manufacturing profit in inventory) resulting from purchase
accounting in connection with the Transaction or any acquisition that is
consummated prior to or after the CA Closing Date shall be excluded, and
(x) accruals and reserves that are established within twelve
months after the CA Closing Date and that are so required to be established
as a result of the Transaction in accordance with US GAAP shall be
excluded.
"CA EBITDA" shall mean, with respect to Holdings and the Subsidiaries
on a consolidated basis for any period, the CA Consolidated Net Income of
Holdings and the Subsidiaries for such period PLUS (a) the sum of (in each case
without duplication and to the extent the respective amounts described in
subclauses (i) through (xi) of this clause (a) reduced such CA Consolidated Net
Income for the respective period for which CA EBITDA is being determined):
(i) provision for Taxes based on income, profits or capital of
Holdings and the Subsidiaries for such period, including, without
limitation, state, franchise and similar taxes (such as the Texas franchise
tax and Michigan single business tax) (including any Tax Distribution taken
into account in calculating CA Consolidated Net Income),
(ii) Interest Expense of Holdings and the Subsidiaries for such
period (net of interest income for such period of Holdings and its
Subsidiaries other than the cash interest income of the Captive Insurance
Subsidiaries),
(iii) depreciation and amortization expenses of Holdings and the
Subsidiaries for such period,
(iv) restructuring charges; PROVIDED that with respect to each such
restructuring charge, Holdings shall have delivered to the Administrative
Agent an officer's certificate specifying and quantifying such charge and
stating that such charge is a restructuring charge,
(v) any other noncash charges (but excluding any such charge which
requires an accrual of, or a cash reserve for, anticipated cash charges for
any future period); PROVIDED that, for purposes of this subclause (v) of
this clause (a), any
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noncash charges or losses shall be treated as cash charges or losses in any
subsequent period during which cash disbursements attributable thereto are
made,
(vi) the minority interest expense consisting of the subsidiary
income attributable to minority equity interests of third parties in any
non-Wholly Owned Subsidiary in such period or any prior period, except to
the extent of dividends declared or paid on Equity Interests held by third
parties,
(vii) the noncash portion of "straight-line" rent expense,
(viii) the amount of any expense to the extent a corresponding amount
is received in cash by any Loan Party from a Person other than Holdings or
any Subsidiary of Holdings under any agreement providing for reimbursement
of any such expense provided such reimbursement payment has not been
included in determining CA EBITDA (it being understood that if the amounts
received in cash under any such agreement in any period exceed the amount
of expense in respect of such period, such excess amounts received may be
carried forward and applied against expense in future periods),
(ix) turnaround costs and expenses to the extent treated as, and
included in computing for the period expended, Capital Expenditures,
(x) the amount of management, consulting, monitoring and advisory
fees and related expenses paid to Blackstone or any other Permitted
Investor (or any accruals related to such fees and related expenses) during
such period; PROVIDED that such amount shall not exceed in any four quarter
period the greater of (x) $5.0 million and (y) 2% of CA EBITDA of Holdings
and the Subsidiaries (assuming for purposes of this clause (y) that the
amount to be added to CA Consolidated Net Income under this clause (x) is
$5.0 million), and
(xi) except for purposes of calculating Excess Cash Flow to the
extent consisting of any net cash loss, any net losses resulting from
currency Swap Agreements entered into in the ordinary course of business
relating to intercompany loans among or between Holdings and/or any of its
Subsidiaries to the extent that the nominal amount of the related Swap
Agreement does not exceed the principal amount of the related intercompany
loan;
MINUS (b) the sum of (in each case without duplication and to the extent the
respective amounts described in subclauses (i) to (iv) of this clause (b)
increased such CA Consolidated Net Income for the respective period for which CA
EBITDA is being determined):
(i) the minority interest income consisting of subsidiary losses
attributable to the minority equity interests of third parties in any
non-Wholly Owned Subsidiary,
(ii) noncash items increasing CA Consolidated Net Income of
Holdings and the Subsidiaries for such period (but excluding any such items
(A) in respect of which cash was received in a prior period or will be
received in a future period or (B) which represent the reversal of any
accrual of, or cash reserve for, anticipated cash charges in any prior
period),
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(iii) the cash portion of "straight-line" rent expense which exceeds
the amount expensed in respect of such rent expense, and
(iv) except for purposes of calculating Excess Cash Flow to the
extent consisting of a net cash gain, any net gains resulting from currency
Swap Agreements entered into in the ordinary course of business relating to
intercompany loans among or between Holdings and/or any of its Subsidiaries
to the extent that the nominal amount of the related Swap Agreement does
not exceed the principal amount of the related intercompany loan.
"CA LOAN DOCUMENTS" shall mean the Loan Documents as defined in the
Credit Agreement.
"CA Mortgage" shall mean each Mortgage under and as defined in the
Credit Agreement.
"CA REQUIRED LENDERS" shall mean the Required Lenders as defined in
the Credit Agreement.
"CA TERM LOAN" shall mean a Term Loan under and as defined in the
Credit Agreement.
"CA TERM LOAN REPAYMENT DATE" shall mean the date on which all CA Term
Loans have been repaid.
"CA TERMINATION DATE" shall mean the date on or after the CA Term Loan
Repayment Date on which the Credit Agreement has terminated and all amounts
owing thereunder have been paid in full.
"CAC" shall have the meaning assigned to such term in the seventh
recital of this Agreement.
"CAC GUARANTOR SUBSIDIARY" shall mean each Domestic Subsidiary of CAC,
with an exception for any Securitization Subsidiary and with such other
exceptions (if any) as are satisfactory to the Administrative Agent, it being
agreed that CAMI will not constitute a CAC Guarantor Subsidiary until the date
which is six months after the CA Closing Date and then only if the CAMI Sale has
not yet been consummated.
"CAC LOAN" shall mean the loans made by Parent to CAC with proceeds of
CA Term Loans.
"CAMI" shall mean Celanese Advanced Materials, Inc.
"CAMI SALE" shall mean the sale of all or substantially all of the
Equity Interests of, or assets of, CAMI for gross cash consideration of at least
$13 million.
"CAPITAL EXPENDITURES" shall mean, for any person in respect of any
period, the aggregate of all expenditures incurred by such person during such
period that, in accordance with US GAAP, are or should be included in "additions
to property, plant or equipment" or similar items reflected in the statement of
cash flows of such person, PROVIDED, HOWEVER, that Capital Expenditures for
Holdings and the Subsidiaries shall not include:
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(a) expenditures to the extent they are made with proceeds of the
issuance of Equity Interests of Holdings after the CA Closing Date to
Blackstone or any other Permitted Investor or with funds that would have
constituted Net Proceeds under clause (a) of the definition of the term
"Net Proceeds" (but that will not constitute Net Proceeds as a result of
the first proviso to such clause (a)),
(b) expenditures of proceeds of insurance settlements,
condemnation awards and other settlements in respect of lost, destroyed,
damaged or condemned assets, equipment or other property to the extent such
expenditures are made, or a binding contract is or has been entered into to
make such expenditures, to replace or repair such lost, destroyed, damaged
or condemned assets, equipment or other property or otherwise to acquire,
maintain, develop, construct, improve, upgrade or repair assets or
properties useful in the business of the Borrower and the Subsidiaries
within 12 months of receipt of such proceeds,
(c) interest capitalized during such period,
(d) expenditures that are accounted for as capital expenditures of
such person and that actually are paid for by a third party (excluding
Holdings or any Subsidiary thereof) and for which neither Holdings nor any
Subsidiary thereof has provided or is required to provide or incur,
directly or indirectly, any consideration or obligation to such third party
or any other person (whether before, during or after such period),
(e) the book value of any asset owned by such person prior to or
during such period to the extent that such book value is included as a
capital expenditure during such period as a result of such person reusing
or beginning to reuse such asset during such period without a corresponding
expenditure actually having been made in such period, PROVIDED that any
expenditure necessary in order to permit such asset to be reused shall be
included as a Capital Expenditure during the period that such expenditure
actually is made,
(f) the purchase price of equipment purchased during such period
to the extent the consideration therefor consists of any combination of (i)
used or surplus equipment traded in at the time of such purchase and (ii)
the proceeds of a concurrent sale of used or surplus equipment, in each
case, in the ordinary course of business,
(g) Investments in respect of a Permitted Business Acquisition, or
(h) the purchase price of equipment that is purchased
substantially contemporaneously with the trade-in of existing equipment to
the extent that the gross amount of such purchase price is reduced by the
credit granted by the seller of such equipment for the equipment being
traded in at such time.
"CAPITAL STOCK" shall mean: (1) in the case of a corporation,
corporate stock; (2) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock; (3) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and (4) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
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"CAPITALIZED LEASE OBLIGATIONS" of any person shall mean the
obligations of such person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under US GAAP
and, for purposes hereof, the amount of such obligations at any time shall be
the capitalized amount thereof at such time determined in accordance with US
GAAP.
"CAPTIVE INSURANCE SUBSIDIARIES" shall mean Celwood Insurance Company
and Elwood Insurance Limited, and any successor to either thereof to the extent
such successor constitutes a Subsidiary.
"CASH CONTRIBUTION AMOUNT" shall mean the aggregate amount of cash
contributions made to the capital of the Borrower described in the definition of
"Contribution Indebtedness."
"CASH EQUIVALENTS" shall mean:
(1) U.S. Dollars, pounds sterling, Euros, or, in the case of any
foreign subsidiary, such local currencies held by it from time to time in
the ordinary course of business;
(2) direct obligations of the United States of America or any
member of the European Union or any agency thereof or obligations
guaranteed by the United States of America or any member of the European
Union or any agency thereof, in each case with maturities not exceeding two
years;
(3) certificates of deposit, time deposits and eurodollar time
deposits with maturities of 12 months or less from the date of acquisition,
bankers' acceptances with maturities not exceeding 12 months and overnight
bank deposits, in each case, with any lender party to the Credit Agreement
or with any commercial bank having capital and surplus in excess of
$500,000,000;
(4) repurchase obligations for underlying securities of the types
described in clauses (2) and (3) above entered into with any financial
institution meeting the qualifications specified in clause (3) above;
(5) commercial paper maturing within 12 months after the date of
acquisition and having a rating of at least A-1 from Moody's or P-1 from
S&P;
(6) securities with maturities of two years or less from the date
of acquisition issued or fully guaranteed by any State, commonwealth or
territory of the United States of America, or by any political subdivision
or taxing authority thereof, and rated at least A by S&P or A-2 by Moody's;
(7) investment funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (1) through
(6) of this definition; and
(8) money market funds that (i) comply with the criteria set forth
in Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA
by S&P and Aaa by Moody's and (iii) have portfolio assets of at least
$500.0 million.
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"CASH INTEREST EXPENSE" shall mean, with respect to Holdings and the
Subsidiaries on a consolidated basis for any period, Interest Expense for such
period, less the sum of (a) pay-in-kind Interest Expense or other noncash
Interest Expense (including as a result of the effects of purchase accounting),
(b) to the extent included in Interest Expense, the amortization of any
financing fees paid by, or on behalf of, Holdings or any Subsidiary, including
such fees paid in connection with the Transaction, (c) the amortization of debt
discounts, if any, or fees in respect of Swap Agreements, (d) the amortization
of any deferred financing costs in respect of the Parent CPECs and (e) cash
interest income of Holdings and its Subsidiaries for such period; PROVIDED that
(i) Cash Interest Expense shall exclude any financing fees paid in connection
with the Transaction (or any refinancing of any Indebtedness incurred in
connection therewith to the extent that such financing fees are paid with the
proceeds from such refinancing Indebtedness) or any amendment of the Credit
Agreement or upon entering into a Qualified Securitization Financing and (ii)
historical Cash Interest Expense shall be deemed to be (x) for each of the
fiscal quarters ended September 30, 2003, December 30, 2003 and March 30, 2004,
$44.5 million and (y) for the period beginning April 1, 2004 through to and
excluding the Closing Date, the amount equal to (A) the quotient of $44.5
million, divided by 91, (B) multiplied by the number of days from and including
April 1, 2004 to and excluding the Closing Date.
A "CHANGE IN CONTROL" shall be deemed to occur if:
(a) at any time, (i) Holdings shall fail to own, directly or
indirectly, beneficially and of record, 100% of the issued and outstanding
Equity Interests of the Borrower (except to the extent an initial public
offering of Equity Interests of US Holdco or New US Holdco is effected),
(ii) the Borrower shall fail to own directly or indirectly, beneficially
and of record, 100% of the issued and outstanding Equity Interests of Bidco
(or the survivor of any merger of Bidco with Midco and/or the Company) or,
after the Restructuring Date, of CAC, (iii) Bidco (or the survivor of any
merger of Bidco with Midco) shall fail to own directly, beneficially and of
record (x) after the consummation of the Offer and prior to any
Squeeze-Out, 75% and (y) after any Squeeze-Out, 100% of the issued and
outstanding Equity Interests (but excluding any rights to purchase,
warrants or options outstanding on the Closing Date or granted thereafter
but prior to the effectiveness of the Domination Agreement and all shares
acquired upon the exercise thereof) of the Company (unless Bidco and the
Company have been merged), in each case excluding any treasury shares held
by the Company, (iv) a majority of the seats (other than vacant seats) on
the board of directors of Holdings shall at any time be occupied by persons
who were neither (A) nominated by the board of directors of Holdings or a
Permitted Holder, (B) appointed by directors so nominated nor (C) appointed
by a Permitted Holder or (v) a "Change in Control" shall occur under the
Senior Subordinated Note Indenture or under any Permitted Senior
Subordinated Debt Securities;
(b) at any time prior to an initial public offering of Equity
Interests of Holdings, US Holdco or New US Holdco, any combination of
Permitted Holders shall fail to own beneficially (within the meaning of
Rule 13d-5 of the Exchange Act as in effect on the Closing Date), directly
or indirectly, in the aggregate Equity Interests representing at least 51%
of (i) the aggregate ordinary voting power represented by the issued and
outstanding Equity Interests of Holdings or US Holdco, as the case may be,
or (ii) the common economic interest represented by the issued and
outstanding Equity Interests of Holdings or US Holdco, as the case may be;
or
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(c) at any time from and after an initial public offering of
Equity Interests of Holdings, US Holdco or New US Holdco, any person or
group (within the meaning of Rule 13d-5 of the Exchange Act as in effect on
the Closing Date), other than any combination of the Permitted Holders,
shall own beneficially (as defined above), directly or indirectly, in the
aggregate Equity Interests representing 35% or more of the aggregate
ordinary voting power represented by the issued and outstanding Equity
Interests of Holdings or US Holdco, as the case may be, and the Permitted
Holders own beneficially (as defined above), directly or indirectly, a
smaller percentage of such ordinary voting power at such time than the
Equity Interests owned by such other person or group.
"CHANGE IN LAW" shall mean (a) the adoption of any law, rule or
regulation after the Closing Date, (b) any change in law, rule or regulation or
in the official interpretation or application thereof by any Governmental
Authority after the Closing Date or (c) compliance by any Lender (or for
purposes of Section 2.13(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any written request, guideline or
directive (whether or not having the force of law) of any Governmental Authority
made or issued after the Closing Date.
"CHARGES" shall have the meaning assigned to such term in Section
9.09.
"CLEAN-UP PERIOD" shall mean the 60 day period following the CA
Closing Date.
"CLOSING DATE" shall mean the date on which the Term Loans C are
incurred.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"COLLATERAL" shall mean all the "Collateral" as defined in any
Security Document and shall also include the Mortgaged Properties.
"COLLATERAL AGENT" shall have the meaning given such term in the
introductory paragraph of this Agreement.
"COLLATERAL AND GUARANTEE REQUIREMENTS" shall mean the requirements
that:
(a) as of the Closing Date, all of the Financing Documents
described in Part I of Schedule 1.01(a) shall have been executed and
delivered by the parties thereto, and all Liens created by the pledging of
securities and/or other instruments shall have been perfected (by the
pledging of such securities and/or instruments or otherwise);
(b) as of the Restructuring Date, all of the Loan Documents
described in Part II of Schedule 1.01(a) shall have been executed and
delivered by the parties thereto, and all Liens created by the pledging of
securities and/or other instruments shall have been perfected (by the
pledging of such securities and/or instruments or otherwise);
(c) in the case of any Person that first becomes a Domestic
Subsidiary Loan Party after the Restructuring Date, the Collateral Agent
shall have received (i) a Supplement to the U.S. Collateral Agreement duly
executed and delivered on behalf
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of such Person and (ii) if such Person owns Equity Interests of a Foreign
Subsidiary organized in Germany or Luxembourg that, as a result the law of
any such jurisdiction of organization of such Foreign Subsidiary, cannot be
pledged under local applicable law to the CA Collateral Agent (or after the
CA Termination Date, the Collateral Agent) under the U.S. Collateral
Agreement, a counterpart of an Alternate Pledge Agreement with respect to
such Equity Interests (provided that in no event shall more than 65% of the
issued and outstanding Equity Interests of any Foreign Subsidiary be
pledged to secure Obligations of Domestic Loan Parties), duly executed and
delivered on behalf of such Subsidiary;
(d) subject to Section 5.10(d) and the definition of Holdings
Agreements, all the Equity Interests that are acquired by a Loan Party
(other than Parent) after the Restructuring Date shall be pledged pursuant
to the U.S. Collateral Agreement or the Holdings Agreements, as the case
may be (provided that in no event shall more than 65% of the issued and
outstanding Equity Interests of any Foreign Subsidiary be pledged to secure
Obligations of Domestic Loan Parties);
(e) the CA Collateral Agent (or after the CA Termination Date, the
Collateral Agent) shall have received all certificates or other instruments
(if any) representing all Equity Interests required to be pledged pursuant
to any of the foregoing paragraphs, together with stock powers or other
instruments of transfer with respect thereto endorsed in blank, in each
case to the extent reasonably requested by counsel to the Lenders, or such
other action shall have been taken as required under applicable law to
perfect a security interest in such Equity Interests as reasonably
requested by counsel to the Lenders;
(f) all Indebtedness of Holdings and each Subsidiary required by
the U.S. Collateral Agreement to be evidenced by a promissory note or
instrument that is owing to any Domestic Loan Party shall be evidenced by a
promissory note or an instrument and shall have been pledged pursuant to
the U.S. Collateral Agreement, and the CA Collateral Agent (or after the CA
Termination Date, the Collateral Agent) shall have received all such
promissory notes or instruments, together with note powers or other
instruments of transfer with respect thereto endorsed in blank;
(g) all documents and instruments, including Uniform Commercial
Code financing statements, required by law or reasonably requested by the
Collateral Agent to be filed, registered or recorded to create the Liens
intended to be created by the Security Documents (in each case, including
any supplements thereto) and perfect such Liens to the extent required by,
and with the priority required by, the Security Documents, shall have been
filed, registered or recorded or delivered to the Collateral Agent for
filing, registration or the recording concurrently with, or promptly
following, the execution and delivery of each such Security Document;
(h) as of the Restructuring Date, the Collateral Agent shall have
received, (i) counterparts of each Mortgage to be entered into on the
Restructuring Date as set forth on SCHEDULE 5.12, with respect to each
Mortgaged Property duly executed and delivered by the record owner of such
Mortgaged Property, (ii) a policy or policies or marked-up unconditional
binder of title insurance, paid for by CAC, issued by a nationally
recognized title insurance company insuring (subject to any survey
exception for the Mortgaged Property located in Narrows, Virginia) the Lien
of each U.S. Mortgage specified on SCHEDULE 5.12 as a valid second Lien on
the Mortgaged
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Property described therein, free of any other Liens except as permitted by
Section 6.08 and Liens arising by operation of law, together with such
endorsements, coinsurance and reinsurance as the Collateral Agent may
reasonably request, (iii) except for the Mortgaged Property located in
Narrows, Virginia, a survey of each Mortgaged Property (and all
improvements thereon) which is (1) dated (or redated) not earlier than six
months prior to the date of delivery of the CA Mortgage thereon unless
there shall have occurred within six months prior to such date any exterior
construction on the site of such Mortgaged Property, in which event such
survey shall be dated (or redated) after the completion of such
construction or if such construction shall not have been completed as of
such date of delivery, not earlier than 20 days prior to such date of
delivery, (2) certified by the surveyor (in a manner reasonably acceptable
to the Administrative Agent) to the Administrative Agent, the Collateral
Agent and the title insurance company insuring the Mortgage, (3) complying
in all respects with the minimum detail requirements of the American Land
Title Association as such requirements are in effect on the date of
preparation of such survey and (4) sufficient for such title insurance
company to remove all standard survey exceptions from the title insurance
policy relating to such Mortgaged Property or otherwise reasonably
acceptable to the Collateral Agent, (iv) such legal opinions and other
documents as the Collateral Agent may reasonably request with respect to
any such Mortgage or Mortgaged Property and (v) a Real Property Officers'
Certificate substantially in the form of EXHIBIT H attached hereto with
respect to each Mortgaged Property indicated on SCHEDULE 5.12; and
(k) each Loan Party shall have obtained all material consents and
approvals required to be obtained by it in connection with (A) the
execution, delivery and performance of all Security Documents (or
supplements thereto) to which it is a party and (B) the granting by it of
the Liens under each Security Document to which it is party.
"COMPANY" shall have the meaning assigned to such term in the second
recital of this Agreement.
"CONSOLIDATED" shall mean with respect to any Person, such Person
consolidated with its Restricted Subsidiaries, and shall not include any
Unrestricted Subsidiary, but the interest of such Person in an Unrestricted
Subsidiary shall be accounted for as an Investment.
"CONSOLIDATED DEBT" at any date shall mean the sum of (without
duplication) (i) all Indebtedness consisting of Capitalized Lease Obligations,
Indebtedness for borrowed money and Indebtedness in respect of the deferred
purchase price of property or services (and not including any indebtedness under
letters of credit (x) to the extent undrawn or (y) if drawn, to the extent
reimbursed within 10 Business Days after such drawing) of Holdings and its
Subsidiaries determined on a consolidated basis on such date plus (ii) any
Receivables Net Investment.
"CONSOLIDATED DEPRECIATION AND AMORTIZATION EXPENSE" shall mean with
respect to any Person for any period, the total amount of depreciation and
amortization expense, including the amortization of deferred financing fees, of
such Person and its Restricted Subsidiaries for such period on a consolidated
basis and otherwise determined in accordance with US GAAP.
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"CONSOLIDATED INTEREST EXPENSE" shall mean with respect to any Person
for any period:
(1) the sum, without duplication, of:
(a) consolidated interest expense of such Person and its
Restricted Subsidiaries for such period (including amortization of original
issue discount, the interest component of Capitalized Lease Obligations and
net payments (if any) pursuant to interest rate Hedging Obligations, but
excluding amortization of deferred financing fees, expensing of any bridge
or other financing fees and expenses and any interest expense on
Indebtedness of a third party that is not an Affiliate of Holdings or any
of its Subsidiaries and that is attributable to supply or lease
arrangements as a result of consolidation under FIN 46R or attributable to
"take-or-pay" contracts accounted for in a manner similar to a capital
lease under EITF 01-8, in either case so long as the underlying obligations
under any such supply or lease arrangement or such "take-or-pay" contract
are not treated as Indebtedness as provided in clause (2) of the proviso to
the definition of Indebtedness);
(b) consolidated capitalized interest of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued
(including, without limitation, Securitization Fees);
(c) "guaranteed dividends" (AUSGLEICHSZAHLUNG) paid or payable to
Company minority shareholders pursuant to the Domination Agreement for such
period; and
(d) all cash dividends to, or the making of loans to, the Holdings
or New US Holdco for the purpose of satisfying dividend or interest
obligations under the Preferred Shares;
(2) less:
(a) interest income of such Person and its Restricted Subsidiaries
(other than cash interest income of the Captive Insurance Subsidiaries) for
such period; and
(b) any repayment to the Borrower or any of its Restricted
Subsidiaries of loans used in calculating Consolidated Interest Expense
pursuant to clause 1(d) above
"CONSOLIDATED NET BANK DEBT" at any date shall mean Consolidated Net
Debt at such time less the amount of the Term Loans C and all other Indebtedness
(other than Capitalized Lease Obligations) included in Consolidated Net Debt
that is not secured in whole or in part by a first priority Lien on assets of
Holdings and/or the Subsidiaries.
"CONSOLIDATED NET DEBT" at any date shall mean (A) Consolidated Debt
on such date less (B) unrestricted cash or marketable securities (determined in
accordance with US GAAP) of Holdings and its Subsidiaries on such date.
"CONSOLIDATED NET INCOME" shall mean with respect to any Person for
any period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, and otherwise in
accordance with US GAAP; PROVIDED, HOWEVER, that:
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(1) any net after-tax extraordinary, unusual or nonrecurring gains
or losses (less all fees and expenses relating thereto) or income or
expense or charge (including, without limitation, severance, relocation and
other restructuring costs) including, without limitation, any severance
expense, and fees, expenses or charges related to any offering of Equity
Interests of such Person, any Investment, acquisition or Indebtedness
permitted to be incurred hereunder (in each case, whether or not
successful), including all fees, expenses, charges and change in control
payments related to the Transaction, in each case shall be excluded;
(2) the Net Income for such period shall not include the
cumulative effect of a change in accounting principles during such period;
(3) any net after-tax income or loss from discontinued operations
and any net after-tax gain or loss on disposal of discontinued operations
shall be excluded;
(4) any net after-tax gains or losses (less all fees and expenses
or charges relating thereto) attributable to business dispositions or asset
dispositions other than in the ordinary course of business (as determined
in good faith by the Board of Directors of the Borrower) shall be excluded;
(5) any net after-tax income or loss (less all fees and expenses
or charges relating thereto) attributable to the early extinguishment of
indebtedness shall be excluded;
(6) an amount equal to the amount of Tax Distributions actually
made to the holders of capital stock of Holdings or in respect of the net
taxable income allocated by such Person to such holders for such period to
the extent funded by the Borrower shall be included as though such amounts
had been paid as income taxes directly by such Person;
(7) (a) the Net Income for such period of any Person that is not a
Subsidiary, or that is an Unrestricted Subsidiary, or that is accounted for
by the equity method of accounting, shall be included only to the extent of
the amount of dividends or distributions or other payments in respect of
equity that are actually paid in cash (or to the extent converted into
cash) by the referent Person to the Borrower or a Restricted Subsidiary
thereof in respect of such period and (b) the Net Income for such period
shall include any dividend, distribution or other payments in respect of
equity paid in cash by such Person to the Borrower or a Restricted
Subsidiary thereof in excess of the amounts included in clause (a);
(8) any increase in amortization or depreciation or any one-time
non-cash charges (such as purchased in-process research and development or
capitalized manufacturing profit in inventory) resulting from purchase
accounting in connection with the Transaction or any acquisition that is
consummated prior to or after the Closing Date shall be excluded;
(9) accruals and reserves that are established within twelve
months after the CA Closing Date and that are so required to be established
as a result of the Transaction in accordance with US GAAP shall be
excluded;
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(10) any non-cash impairment charges resulting from the application
of Statements of Financial Accounting Standards No. 142 and No. 144 and the
amortization of intangibles pursuant to Statement of Financial Accounting
Standards No. 141, shall be excluded;
(11) any non-cash compensation expense realized from grants of
stock appreciation or similar rights, stock options or other rights to
officers, directors and employees of such Person or any of its Restricted
Subsidiaries shall be excluded;
(12) solely for the purpose of determining the amount available for
Restricted Payments under Section 6.02 (a)(3)(A) the Net Income for such
period of any Restricted Subsidiary (other than a Guarantor) shall be
excluded if the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of its Net Income is not at the
date of determination permitted without any prior governmental approval
(which has not been obtained) or, directly or indirectly, by the operation
of the terms of its charter or any agreement, instrument, judgment, decree,
order, statute, rule, or governmental regulation applicable to that
Restricted Subsidiary or its stockholders, unless such restriction with
respect to the payment of dividends or in similar distributions has been
legally waived; PROVIDED that Consolidated Net Income of such Person shall
be increased by the amount of dividends or distributions or other payments
that are actually paid in cash (or to the extent converted into cash) by
such Person to the Borrower or another Restricted Subsidiary thereof in
respect of such period, to the extent not already included therein; and
(13) cost of sales will be reflected on a FIFO basis.
Notwithstanding the foregoing, for the purpose of Section 6.02 only
(other than Section 6.02(a)(3)(D)), there shall be excluded from Consolidated
Net Income any income arising from any sale or other disposition of Restricted
Investments made by the Borrower and the Restricted Subsidiaries, any
repurchases and redemptions of Restricted Investments by the Borrower and the
Restricted Subsidiaries, any repayments of loans and advances which constitute
Restricted Investments by the Borrower and any Restricted Subsidiary, any sale
of the stock of an Unrestricted Subsidiary or any distribution or dividend from
an Unrestricted Subsidiary, in each case only to the extent such amounts
increase the amount of Restricted Payments permitted under Section 6.02(3)(D).
"CONTINGENT OBLIGATIONS" shall mean with respect to any Person, any
obligation of such Person guaranteeing any leases, dividends or other
obligations that do not constitute Indebtedness ("PRIMARY OBLIGATIONS") of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent:
(1) to purchase any such primary obligation or any property
constituting direct or indirect security therefor,
(2) to advance or supply funds:
(a) for the purchase or payment of any such primary
obligation; or
(b) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor; or
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(3) 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 against
loss in respect thereof.
"CONTRIBUTION INDEBTEDNESS" shall mean Indebtedness of the Borrower or
any Guarantor in an aggregate principal amount not greater than twice the
aggregate amount of cash contributions (other than Excluded Contributions) made
to the capital of the Borrower after the Closing Date; PROVIDED that:
(1) if the aggregate principal amount of such Contribution
Indebtedness is greater than the aggregate amount of such cash
contributions to the capital of the Borrower, the amount in excess shall be
Indebtedness (other than Secured Indebtedness) with a Stated Maturity later
than the Stated Maturity of the Senior Subordinated Notes, and
(2) such Contribution Indebtedness (a) is Incurred within 180 days
after the making of such cash contribution and (b) is so designated as
Contribution Indebtedness pursuant to an Officers' Certificate on the
incurrence date thereof.
"CONTROL" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and "CONTROLLING" and "CONTROLLED" shall have meanings correlative
thereto.
"CREDIT AGREEMENT" shall mean the Credit Agreement dated as of April
6, 2004 among INTER ALIA Holdings, the Parent, CAC, the Lenders party thereto
and DBNY, as Administrative Agent, as amended, modified, supplemented or
refinanced in whole (and the agreement governing the refinancing Indebtedness is
designated by the Borrower in writing to the Administrative Agent as the Credit
Agreement) from time to time. All references herein to a Section of the Credit
Agreement shall be a reference to such Section as in effect on the Closing Date
or after the Closing Date to such Section of the Credit Agreement then in effect
that has replaced or been substituted for such original Section.
"CURE AMOUNT" shall have the meaning assigned to such term in Section
7.02.
"CURE RIGHT" shall have the meaning assigned to such term in Section
7.02.
"CURRENT ASSETS" shall mean, with respect to Holdings and the
Subsidiaries on a consolidated basis at any date of determination, the sum of
(a) all assets (other than cash and Permitted Investments or other cash
equivalents) that would, in accordance with US GAAP, be classified on a
consolidated balance sheet of Holdings and the Subsidiaries as current assets at
such date of determination, other than amounts related to current or deferred
Taxes based on income or profits and (b) in the event that a Qualified
Securitization Financing is accounted for off-balance sheet, (x) gross accounts
receivable comprising part of the Securitization Assets subject to such
Qualified Securitization Financing less (y) collections against the amounts sold
pursuant to clause (x).
"CURRENT LIABILITIES" shall mean, with respect to Holdings and the
Subsidiaries on a consolidated basis at any date of determination, all
liabilities that would, in accordance with US GAAP, be classified on a
consolidated balance sheet of Holdings and the Subsidiaries as current
liabilities at such date of determination, other than (a) the current
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portion of any debt or Capitalized Lease Obligations, (b) accruals of Interest
Expense (excluding Interest Expense that is due and unpaid), (c) accruals for
current or deferred Taxes based on income, profits or capital, (d) accruals, if
any, of transaction costs resulting from the Transaction, (e) accruals of any
costs or expenses related to (i) severance or termination of employees prior to
the CA Closing Date or (ii) bonuses, pension and other post-retirement benefit
obligations, and (f) accruals for add-backs to CA EBITDA included in clauses
(a)(iv) through (a)(ix) of the definition of such term.
"DBNY" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"DEBT SERVICE" shall mean, with respect to Holdings and the
Subsidiaries on a consolidated basis for any period, Cash Interest Expense for
such period plus scheduled principal amortization of Consolidated Debt for such
period.
"DEFAULT" shall mean any event or condition that upon notice, lapse of
time or both would constitute an Event of Default.
"DELISTING" shall mean the delisting of the shares of the Company from
the New York Stock Exchange.
"DESIGNATED NON-CASH CONSIDERATION" shall mean the fair market value
of non-cash consideration received by the Borrower or one of its Restricted
Subsidiaries in connection with an Asset Sale that is so designated as
Designated Non-cash Consideration pursuant to an Officers' Certificate setting
forth the basis of such valuation, less the amount of cash or Cash Equivalents
received in connection with a subsequent sale of such Designated Non-cash
Consideration.
"DESIGNATED PREFERRED STOCK" shall mean Preferred Stock of the
Borrower or any direct or indirect parent company of the Borrower (other than
Disqualified Stock), that is issued for cash (other than to the Borrower or any
of its Subsidiaries or an employee stock ownership plan or trust established by
the Borrower or any of its Subsidiaries) and is so designated as Designated
Preferred Stock, pursuant to an Officers' Certificate, on the issuance date
thereof, the cash proceeds of which are excluded from the calculation set forth
in Section 6.02(a)(3).
"DISQUALIFIED STOCK" shall mean with respect to any Person, any
Capital Stock of such Person which, by its terms (or by the terms of any
security into which it is convertible or for which it is putable or
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable (other than as a result of a change of control or asset sale),
pursuant to a sinking fund obligation or otherwise, or is redeemable at the
option of the holder thereof (other than as a result of a change of control or
asset sale), in whole or in part, in each case prior to the date 91 days after
the earlier of the Maturity Date or the date the Term Loans C are no longer
outstanding; PROVIDED, HOWEVER, that if such Capital Stock is issued to any plan
for the benefit of employees of Holdings or its Subsidiaries or by any such plan
to such employees, such Capital Stock shall not constitute Disqualified Stock
solely because it may be required to be repurchased by Holdings or its
Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
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"DOLLAR EQUIVALENT" shall mean, on any date of determination (a) with
respect to any amount in Dollars, such amount, and (b) with respect to any
amount in Euros, the equivalent in Dollars of such amount, at such time,
determined pursuant to Section 1.03.
"DOLLARS" or "$" shall mean lawful money of the United States of
America.
"DOMESTIC LOAN PARTIES" shall mean at any time on and after the
Restructuring Date (i) each Domestic Subsidiary Loan Party and (ii) US Holdco.
"DOMESTIC SUBSIDIARY" of any Person shall mean a subsidiary of such
Person that is not (a) a Foreign Subsidiary, (b) after the Restructuring Date, a
subsidiary of a Foreign Subsidiary or (c) listed on SCHEDULE 1.01(h).
"DOMESTIC SUBSIDIARY LOAN PARTY" shall mean CAC and each CAC Guarantor
Subsidiary plus any other subsidiary of the Borrower (other than any
Securitization Subsidiary and CAC and any subsidiary of CAC) that first becomes
a Domestic Subsidiary after the CA Closing Date (with such exceptions as are
satisfactory to the Administrative Agent), it being agreed that if, at any time
on or after the Restructuring Date, CAC is not a direct wholly-owned subsidiary
of US Holdco, each entity that is owned, directly or indirectly, in whole or in
part, by US Holdco and that owns directly or indirectly any equity interest in
CAC shall be required to be a party to the U.S. Collateral Agreement.
"DOMINATION AGREEMENT" shall mean a domination and profit and loss
transfer agreement to be entered into by LP GmbH, Midco or Bidco, as the case
may be, and the Company in a form approved by DBNY as Administrative Agent under
the Credit Agreement as provided for in the Credit Agreement.
"EBITDA" shall mean with respect to any Person for any period, the
Consolidated Net Income of such Person for such period plus, without
duplication, and in each case to the extent deducted in calculating Consolidated
Net Income for such period:
(1) provision for taxes based on income, profits or capital of
such Person for such period, including, without limitation, state,
franchise and similar taxes (such as the Texas franchise tax and Michigan
single business tax) (including any Tax Distribution taken into account in
calculating Consolidated Net Income); plus
(2) Consolidated Interest Expense of such Person for such period;
plus
(3) Consolidated Depreciation and Amortization Expense of such
Person for such period; plus
(4) any reasonable expenses or charges related to any Equity
Offering, Permitted Investment, acquisition, recapitalization or
Indebtedness permitted to be incurred under this Agreement or to the
Transaction; plus
(5) the amount of any restructuring charges (which, for the
avoidance of doubt, shall include retention, severance, systems
establishment cost or excess pension charges); plus
(6) the minority interest expense consisting of subsidiary income
attributable to minority equity interests of third parties in any
non-Wholly Owned
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Subsidiary in such period or any prior period, except to the extent of
dividends declared or paid on Equity Interests held by third parties; plus
(7) the non-cash portion of "straight-line" rent expense; plus
(8) the amount of any expense to the extent a corresponding amount
is received in cash by the Borrower and its Restricted Subsidiaries from a
Person other than the Borrower or any Subsidiary of the Borrower under any
agreement providing for reimbursement of any such expense, provided such
reimbursement payment has not been included in determining Consolidated Net
Income or EBITDA (it being understood that if the amounts received in cash
under any such agreement in any period exceed the amount of expense in
respect of such period, such excess amounts received may be carried forward
and applied against expense in future periods); plus
(9) the amount of management, consulting, monitoring and advisory
fees and related expenses paid to Blackstone or any other Permitted Holder
(or any accruals related to such fees and related expenses) during such
period; provided that such amount shall not exceed in any four quarter
period the greater of (x) $5.0 million and (y) 2% of EBITDA of the Borrower
and its Restricted Subsidiaries for each period (assuming for purposes of
this clause (y) that the amount to be added to Consolidated Net Income
under this clause (9) is $5.0 million); plus
(10) without duplication, any other non-cash charges (including any
impairment charges and the impact of purchase accounting, including, but
not limited to, the amortization of inventory step-up) (excluding any such
charge that represents an accrual or reserve for a cash expenditure for a
future period); plus
(11) any net losses resulting from Hedging Obligations entered into
in the ordinary course of business relating to intercompany loans, to the
extent that the notional amount of the related Hedging Obligation does not
exceed the principal amount of the related intercompany loan;
and less the sum of, without duplication,
(1) non-cash items increasing Consolidated Net Income for such
period (excluding any items which represent the reversal of any accrual of,
or cash reserve for, anticipated cash charges or asset valuation
adjustments made in any prior period);
(2) the minority interest income consisting of subsidiary losses
attributable to the minority equity interests of third parties in any
non-Wholly Owned Subsidiary;
(3) the cash portion of "straight-line" rent expense which exceeds
the amount expensed in respect of such rent expense; and
(4) any net gains resulting from Hedging Obligations entered into
in the ordinary course of business relating to intercompany loans, to the
extent that the notional amount of the related Hedging Obligation does not
exceed the principal amount of the related intercompany loan.
"EMU LEGISLATION" shall mean the legislative measures of the European
Union for the introduction of, changeover to or operation of the Euro in one or
more member states of the European Union.
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"ENVIRONMENT" shall mean ambient and indoor air, surface water and
groundwater (including potable water, navigable water and wetlands), the land
surface or subsurface strata, natural resources such as flora and fauna, the
workplace or as otherwise defined in any Environmental Law.
"ENVIRONMENTAL LAWS" shall mean all applicable laws (including common
law), rules, regulations, codes, ordinances, orders, decrees, judgments,
injunctions, or binding agreements issued, promulgated or entered into by any
Governmental Authority, relating in any way to the protection of the
Environment, preservation or reclamation of natural resources, the generation,
management, Release or threatened Release of, or exposure to, any Hazardous
Material or to health and safety matters (to the extent relating to the
Environment or exposure to Hazardous Materials).
"EQUITY INTERESTS" shall mean Capital Stock and all warrants, options
or other rights to acquire Capital Stock (but excluding any debt security that
is convertible into, or exchangeable for, Capital Stock).
"EQUITY OFFERING" shall mean any public or private sale of common
stock or Preferred Stock of the Borrower or any or its direct or indirect parent
corporations (excluding Disqualified Stock), other than (i) public offerings
with respect to common stock of the Borrower or of any direct or indirect parent
corporation of the Borrower registered on Form S-8 and (ii) any such public or
private sale that constitutes an Excluded Contribution.
"EQUITY PERCENTAGE" shall mean 50%.
"ER CALCULATION DATE" shall mean (a) the last Business Day of each
calendar month and (b) if an Event of Default under Section 7.01(b) or (c) has
occurred and is continuing, any Business Day as determined by the Administrative
Agent.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
"ERISA AFFILIATE" shall mean any trade or business (whether or not
incorporated) that, together with Holdings, the Borrower or a Subsidiary, is
treated as a single employer under Section 414(b) or (c) of the Code, or, solely
for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as
a single employer under Section 414 of the Code.
"ERISA EVENT" shall mean (a) any Reportable Event; (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan, the failure to make by its due date a required installment under Section
412(m) of the Code with respect to any Plan or the failure to make any required
contribution to a Multiemployer Plan; (d) the incurrence by Holdings, the
Borrower, a Subsidiary or any ERISA Affiliate of any liability under Title IV of
ERISA with respect to the termination of any Plan; (e) the receipt by Holdings,
the Borrower, a Subsidiary or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or to
appoint a trustee to administer any Plan under Section 4042 of ERISA; (f) the
incurrence by Holdings, the Borrower, a Subsidiary or any ERISA Affiliate of any
liability with respect to the withdrawal or partial withdrawal from
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any Plan or Multiemployer Plan; or (g) the receipt by Holdings, the Borrower, a
Subsidiary or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from Holdings, the Borrower, a Subsidiary or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA.
"EURO" or "EURO " shall mean the single currency of the European Union
as constituted by the treaty establishing the European Community being the
Treaty of Rome, as amended from time to time and as referred to in the EMU
Legislation.
"EURO EQUIVALENT" shall mean, on any date of determination, (a) with
respect to any amount in Euros, such amount and (b) with respect to any amount
in Dollars, the equivalent in Euros of such amount at such time, determined
pursuant to Section 1.03.
"EUROCURRENCY LOAN" shall mean any Term Loan C bearing interest at a
rate determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Section 7.01.
"EXCESS CASH FLOW" shall mean, with respect to Holdings and the
Subsidiaries on a consolidated basis for any Excess Cash Flow Period, CA EBITDA
of Holdings and the Subsidiaries on a consolidated basis for such Excess Cash
Flow Period, MINUS, without duplication,
(a) Debt Service for such Excess Cash Flow Period,
(b) (i) any voluntary prepayments of CA Term Loans and Term Loans
during such Excess Cash Flow Period, (ii) any permanent voluntary
reductions during such Excess Cash Flow Period of Revolving Facility
Commitments to the extent that an equal amount of Revolving Facility Loans
was simultaneously repaid and (iii) any voluntary prepayment permitted
hereunder and under the Credit Agreement of term Indebtedness during such
Excess Cash Flow Period to the extent not financed, or intended to be
financed, using the proceeds of the incurrence of Indebtedness, so long as
the amount of such prepayment is not already reflected in Debt Service,
(c) (i) Capital Expenditures by Holdings and the Subsidiaries on a
consolidated basis during such Excess Cash Flow Period (excluding Capital
Expenditures made in such Excess Cash Flow Period where a certificate in
the form contemplated by the following clause (d) was previously delivered)
that are paid in cash, and (ii) the aggregate consideration paid in cash
during such Excess Cash Flow Period in respect of Permitted Business
Acquisitions and other Investments permitted hereunder (less any amounts
received in respect thereof as a return of capital),
(d) Capital Expenditures that Holdings or any Subsidiary shall,
during such Excess Cash Flow Period, become legally obligated to make but
that are not made during such Excess Cash Flow Period, PROVIDED that
Holdings shall deliver a certificate to the Administrative Agent not later
than 90 days after the end of such Excess Cash Flow Period, signed by a
Responsible Officer of Holdings and certifying
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that such Capital Expenditures and the delivery of the related equipment
will be made in the following Excess Cash Flow Period,
(e) Taxes paid in cash by Holdings and its Subsidiaries on a
consolidated basis during such Excess Cash Flow Period or that will be paid
within six months after the close of such Excess Cash Flow Period (PROVIDED
that any amount so deducted that will be paid after the close of such
Excess Cash Flow Period shall not be deducted again in a subsequent Excess
Cash Flow Period) and for which reserves have been established, including
income tax expense and withholding tax expense incurred in connection with
cross-border transactions involving the Foreign Subsidiaries,
(f) an amount equal to any increase in Working Capital of Holdings
and its Subsidiaries for such Excess Cash Flow Period,
(g) cash expenditures made in respect of Swap Agreements during
such Excess Cash Flow Period, to the extent not reflected in the
computation of CA EBITDA or Interest Expense,
(h) permitted dividends or distributions or repurchases of its
Equity Interests paid in cash by Holdings during such Excess Cash Flow
Period and permitted dividends paid by any Subsidiary to any person other
than Holdings, the Borrower or any of the Subsidiaries during such Excess
Cash Flow Period, in each case in accordance with Section 6.06,
(i) amounts paid in cash during such Excess Cash Flow Period on
account of (x) items that were accounted for as noncash reductions of Net
Income in determining CA Consolidated Net Income or as non-cash reductions
of CA Consolidated Net Income in determining CA EBITDA of Holdings and its
Subsidiaries in a prior Excess Cash Flow Period, (y) reserves or accruals
established in purchase accounting and (z) any other long-term reserves
existing on the CA Closing Date as reflected in the PRO FORMA balance sheet
referred to in Section 3.05(b),
(j) to the extent not deducted in the computation of Net Proceeds
in respect of any asset disposition or condemnation giving rise thereto,
the amount of any mandatory prepayment of Indebtedness (other than
Indebtedness created hereunder or under any other Loan Document), together
with any interest, premium or penalties required to be paid (and actually
paid) in connection therewith,
(k) the amount related to items that were added to or not deducted
from Net Income in calculating CA Consolidated Net Income or were added to
or not deducted from CA Consolidated Net Income in calculating CA EBITDA to
the extent such items represented a cash payment (which had not reduced
Excess Cash Flow upon the accrual thereof in a prior period), or an accrual
for a cash payment, by Holdings and its Subsidiaries or did not represent
cash received by Holdings and its Subsidiaries, in each case on a
consolidated basis during such Excess Cash Flow Period,
(l) Tax Distributions which are paid during the respective Excess
Cash Flow Period or will be paid within six months after the close of such
Excess Cash Flow Period (as reasonably determined in good faith by
Holdings) to the extent, in
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each case, funded by the Borrower, PROVIDED that to the extent such Tax
Distributions are not actually paid within such six month period such
amounts shall be added to Excess Cash Flow the next succeeding Excess Cash
Flow Period, and
(m) any advance cash payments during such Excess Cash Flow Period
for the purchase of raw materials to the extent not recorded as a Current
Asset and to the extent that any such advance cash payment did not
otherwise reduce CA EBITDA for such Excess Cash Flow Period,
PLUS, without duplication,
(a) an amount equal to any decrease in Working Capital for such
Excess Cash Flow Period,
(b) all proceeds received during such Excess Cash Flow Period of
Capitalized Lease Obligations, purchase money Indebtedness, Sale and
Lease-Back Transaction pursuant to Section 6.03 of the Credit Agreement and
any other Indebtedness, in each case to the extent used to finance any
Capital Expenditure (other than Indebtedness to the extent there is no
corresponding deduction to Excess Cash Flow above in respect of the use of
such Indebtedness),
(c) all amounts referred to in clause (c) above to the extent
funded with the proceeds of the issuance of Equity Interests of, or capital
contributions to, Holdings after the CA Closing Date (to the extent not
previously used to prepay Indebtedness (other than Revolving Facility Loans
or Swingline Loans (as defined in the Credit Agreement)), make any
investment or capital expenditure or otherwise for any purpose resulting in
a deduction to Excess Cash Flow in any prior period) or any amount that
would have constituted Net Proceeds under clause (a) of the definition of
the term "Net Proceeds" if not so spent, in each case to the extent there
is a corresponding deduction from Excess Cash Flow above,
(d) to the extent any permitted Capital Expenditures and the
corresponding delivery of equipment referred to in clause (d) above do not
occur in the Excess Cash Flow Period of Holdings specified in the
certificate of Holdings provided pursuant to clause (d) above, the amount
of such Capital Expenditures that were not so made in the Excess Cash Flow
Period of Holdings specified in such certificates,
(e) cash payments received in respect of Swap Agreements during
such Excess Cash Flow Period to the extent (i) not included in the
computation of CA EBITDA or (ii) such payments do not reduce Cash Interest
Expense,
(f) any extraordinary or nonrecurring gain realized in cash during
such Excess Cash Flow Period (except to the extent such gain consists of
Net Proceeds subject to Section 2.11(c)),
(g) to the extent deducted in the computation of CA EBITDA, cash
interest income,
(h) the amount related to items that were deducted from or not
added to Net Income in connection with calculating CA Consolidated Net
Income or were deducted from or not added to CA Consolidated Net Income in
calculating CA
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EBITDA to the extent either (x) such items represented cash received by
Holdings or any Subsidiary or (y) does not represent cash paid by Holdings
or any Subsidiary, in each case on a consolidated basis during such Excess
Cash Flow Period, and
(i) any expense which reduces CA EBITDA in such Excess Cash Flow
Period in respect of an advance cash payment made for raw materials in a
previous Excess Cash Flow Period to the extent that any such advance cash
payment reduced Excess Cash Flow in such previous Excess Cash Flow Period.
"EXCESS CASH FLOW PERIOD" shall mean (i) the fiscal year of Holdings
during which the CA Term Loan Repayment Date occurs, and (ii) each fiscal year
of Holdings ended thereafter.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE RATE" shall mean on any day, for purposes of determining the
Dollar Equivalent or Euro Equivalent of any other currency, the rate at which
such other currency may be exchanged into Dollars or Euros (as applicable), as
set forth in the Wall Street Journal published on such date for such currency.
In the event that such rate does not appear in such copy of the Wall Street
Journal, the Exchange Rate shall be determined by reference to such other
publicly available service for displaying exchange rates as may be agreed upon
by the Administrative Agent and the Borrower, or, in the absence of such an
agreement, such Exchange Rate shall instead be the arithmetic average of the
spot rates of exchange of the Administrative Agent in the market where its
foreign currency exchange operations in respect of such currency are then being
conducted, at or about 10:00 a.m., Local Time, on such date for the purchase of
Dollars or Euros (as applicable) for delivery two Business Days later; PROVIDED
that if at the time of any such determination, for any reason, no such spot rate
is being quoted, the Administrative Agent may, in consultation with the
Borrower, use any reasonable method it deems appropriate to determine such rate,
and such determination shall be prima facie evidence thereof.
"EXCLUDED CONTRIBUTION" shall mean the net cash proceeds, marketable
securities or Qualified Proceeds, in each case received by the Borrower and its
Restricted Subsidiaries from:
(1) contributions to its common equity capital, and
(2) the sale (other than to a Subsidiary or to any management
equity plan or stock option plan or any other management or employee
benefit plan or agreement of the Borrower or any Subsidiary) of Capital
Stock (other than Disqualified Stock),
in each case designated as Excluded Contributions pursuant to an Officers'
Certificate on the date such capital contributions are made or the date such
Equity Interests are sold, as the case may be, which are excluded from the
calculation set forth in Section 6.02(a)(3) hereof.
"EXCLUDED EQUITY ISSUANCES" shall mean (i) the issuance of Equity
Interests by Holdings to Blackstone or any other Permitted Investor, (ii) the
issuance of Equity Interests by Holdings the proceeds of which are used to fund
Investments permitted by Section 6.04, (iii) Equity Interests issued by Holdings
(x) as compensation to employees of Holdings or any of its Subsidiaries or (y)
to members of management of Holdings or any Subsidiary within
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one year of the Closing Date, in each case in the ordinary course of business
and (iv) Permitted Cure Securities.
"EXCLUDED INDEBTEDNESS" shall mean all Indebtedness permitted to be
incurred under Section 6.01(b) (other than Indebtedness permitted by Sections
6.01(o) and (s) of the Credit Agreement).
"EXCLUDED TAXES" shall mean, with respect to the Administrative Agent,
any Lender, any Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of a Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the jurisdiction under the
laws of which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable lending office is
located, (b) any branch profits tax or any similar tax that is imposed by any
jurisdiction described in clause (a) above and (c) in the case of a Lender
(other than an assignee pursuant to a request by a Borrower under Section
2.17(b)), any withholding tax imposed by the United States that is in effect and
would apply to amounts payable hereunder to such Lender at the time such Lender
becomes a party to this Agreement (or designates a new lending office) or is
attributable to such Lender's failure to comply with Section 2.15(e) with
respect to such Term Loans C except to the extent that such Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from a Borrower with
respect to any withholding tax pursuant to Section 2.15(a).
"EXISTING INDEBTEDNESS" means Indebtedness of the Borrower and its
Subsidiaries (other than Indebtedness under the Credit Agreement) in existence
on the date of this Agreement.
"FAIR MARKET VALUE" shall mean with respect to any asset or property,
the price which could be negotiated in an arm's-length, free market transaction,
for cash, between a willing seller and a willing and able buyer, neither of whom
is under undue pressure or compulsion to complete the transaction.
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, the weighted
average (rounded upward, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average (rounded upward, if
necessary, to the next 1/100 of 1%) 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.
"FINANCIAL OFFICER" of any person shall mean the Chief Financial
Officer, principal accounting officer, Treasurer, Assistant Treasurer or
Controller of such person.
"FINANCIAL PERFORMANCE COVENANTS" shall mean the covenants of Holdings
set forth in Sections 6.10, 6.11 and 6.12.
"FIXED CHARGE COVERAGE RATIO" shall mean with respect to any Person
for any period consisting of such Person and its Restricted Subsidiaries' most
recently ended four fiscal quarters for which internal financial statements are
available, the ratio of EBITDA of such Person for such period to the Fixed
Charges of such Person for such period. In the event
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that the Borrower or any Restricted Subsidiary incurs, assumes, guarantees or
redeems any Indebtedness or issues or repays Disqualified Stock or Preferred
Stock subsequent to the commencement of the period for which the Fixed Charge
Coverage Ratio is being calculated but prior to the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the "CALCULATION DATE"),
then the Fixed Charge Coverage Ratio shall be calculated giving PRO FORMA effect
to such incurrence, assumption, guarantee or repayment of Indebtedness, or such
issuance or redemption of Disqualified Stock or Preferred Stock, as if the same
had occurred at the beginning of the applicable four-quarter period.
For purposes of making the computation referred to above, Investments,
acquisitions, dispositions, mergers, consolidations (as determined in accordance
with US GAAP) that have been made by the Borrower or any Restricted Subsidiary
during the four-quarter reference period or subsequent to such reference period
and on or prior to or simultaneously with the Calculation Date shall be
calculated on a PRO FORMA basis assuming that all such Investments,
acquisitions, dispositions, mergers, consolidations (and the change in any
associated fixed charge obligations and the change in EBITDA resulting
therefrom) had occurred on the first day of the four-quarter reference period.
If since the beginning of such period any Person (that subsequently became a
Restricted Subsidiary or was merged with or into the Borrower or any Restricted
Subsidiary since the beginning of such period) shall have made any Investment,
acquisition (including the Transaction), disposition, merger, consolidation that
would have required adjustment pursuant to this definition, then the Fixed
Charge Coverage Ratio shall be calculated giving PRO FORMA effect thereto for
such period as if such Investment, acquisition (including the Transaction),
disposition, merger, consolidation or discontinued operation had occurred at the
beginning of the applicable four-quarter period.
For purposes of this definition, whenever PRO FORMA effect is to be
given to an acquisition (including the Transaction) or other Investment and the
amount of income or earnings relating thereto, the PRO FORMA calculations shall
be determined in good faith by a responsible financial or accounting Officer of
the Borrower and shall comply with the requirements of Rule 11-02 of Regulation
S-X promulgated by the Commission, except that such PRO FORMA calculations may
include operating expense reductions for such period resulting from the
acquisition (including the Transaction) which is being given PRO FORMA effect
that have been realized or for which the steps necessary for realization have
been taken or are reasonably expected to be taken within six months following
any such acquisition, including, but not limited to, the execution or
termination of any contracts, the termination of any personnel or the closing
(or approval by the Board of Directors of the Borrower of any closing) of any
facility, as applicable, PROVIDED that, in either case, such adjustments are set
forth in an Officers' Certificate signed by the Borrower's chief financial
officer and another Officer which states (i) the amount of such adjustment or
adjustments, (ii) that such adjustment or adjustments are based on the
reasonable good faith beliefs of the Officers executing such Officers'
Certificate at the time of such execution and (iii) that any related incurrence
of Indebtedness is permitted pursuant to this Agreement. If any Indebtedness
bears a floating rate of interest and is being given PRO FORMA effect, the
interest on such Indebtedness shall be calculated as if the rate in effect on
the Calculation Date had been the applicable rate for the entire period (taking
into account any Hedging Obligations applicable to such Indebtedness). Interest
on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined by a responsible financial or accounting officer of the
Borrower to be the rate of interest implicit in such Capitalized Lease
Obligation in accordance with US GAAP. For purposes of making the computation
referred to above, interest on any Indebtedness under a revolving credit
facility computed on a PRO FORMA basis shall be
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computed based upon the average daily balance of such Indebtedness during the
applicable period. Interest on Indebtedness that may optionally be determined at
an interest rate based upon a factor of a prime or similar rate, a eurocurrency
interbank offered rate, or other rate, shall be deemed to have been based upon
the rate actually chosen, or, if none, then based upon such optional rate chosen
as the Borrower may designate.
"FIXED CHARGES" shall mean with respect to any Person for any period,
the sum of, without duplication:
(1) Consolidated Interest Expense of such Person for such period,
(2) all cash dividends paid, accrued and/or scheduled to be paid
or accrued during such period (excluding items eliminated in consolidation)
on any series of Preferred Stock of such Person, and
(3) all cash dividends paid, accrued and/or scheduled to be paid
or accrued during such period (excluding items eliminated in consolidation)
on any series of Disqualified Stock.
"FLOW THROUGH ENTITY" shall mean an entity that is treated as a
partnership not taxable as a corporation, a grantor trust or a disregarded
entity for United States federal income tax purposes or subject to treatment on
a comparable basis for purposes of state, local or foreign tax law.
"FOREIGN LENDER" shall mean any Lender that is organized under the
laws of a jurisdiction other than the United States of America. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"FOREIGN SUBSIDIARY" shall mean any Subsidiary that is incorporated or
organized under the laws of any jurisdiction other than the United States of
America, any State thereof or the District of Columbia.
"GLOBAL COORDINATOR" shall have the meaning assigned to such term in
the introductory paragraph of this Agreement.
"GOVERNMENTAL AUTHORITY" shall mean any federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
or legislative body.
"GP GmbH" shall have the meaning assigned to such term in the first
recital to this Agreement.
"GUARANTEE" shall mean a guarantee other than by endorsement of
negotiable instruments for collection in the ordinary course of business, direct
or indirect, in any manner including, without limitation, through letters of
credit or reimbursement agreements in respect thereof, of all or any part of any
Indebtedness or other obligations.
"GUARANTEE" shall mean any guarantee of the obligations of the
Borrower under this Agreement by a Guarantor in accordance with the provisions
of applicable Loan Documents. When used as a verb, "Guarantee" shall have a
corresponding meaning.
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"GUARANTOR" shall mean any Person that incurs a Guarantee of the
Obligations; PROVIDED that upon the release and discharge of such Person from
its Guarantee in accordance with the applicable Loan Document such Person shall
cease to be a Guarantor.
"HAZARDOUS MATERIALS" shall mean all pollutants, contaminants, wastes,
chemicals, materials, substances and constituents, including, without
limitation, explosive or radioactive substances or petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls or radon gas, of any nature subject to regulation or which could
reasonably be expected to give rise to liability under any Environmental Law.
"HC ACTIVITIES" shall mean such activities to be undertaken by (i)
Bidco, Midco or LP GmbH as reasonably determined by Holdings to be required to
enable Bidco, Midco or LP GmbH, as the case may be, to obtain and continue
holding company status under German tax law and (ii) Bidco as reasonably
determined by Holdings to be required to enable Bidco to satisfy the
requirements of German tax law regarding the head of a fiscal unity.
"HC CORPORATION" shall mean with respect to Bidco, a subsidiary
thereof acquired through HC Investments.
"HC INVESTMENTS" shall mean Investments (including through transfer
from another Subsidiary) made by (i) Bidco, Midco or LP GmbH in acquiring two
corporate subsidiaries (or in the case of Bidco, a second corporate subsidiary)
and (ii) Bidco in a "trade business," PROVIDED that such Investments shall be at
the minimum amount reasonably determined by Holdings to permit (x) Bidco, Midco
or LP GmbH, as the case may be, to obtain and continue holding company status
under German tax law or (y) Bidco to satisfy the requirements of German tax law
fiscal unity requirements.
"HEDGING OBLIGATIONS" shall mean, with respect to any Person, the
obligations of such Person under: (1) currency exchange, interest rate or
commodity swap agreements, currency exchange, interest rate or commodity cap
agreements and currency exchange, interest rate or commodity collar agreements;
and (2) other agreements or arrangements designed to protect such Person against
fluctuations in currency exchange, interest rates or commodity prices.
"HOLDCO EQUITY FINANCING" shall each have the meaning assigned to such
term in the third recital of this Agreement.
"HOLDINGS" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"HOLDINGS AGREEMENTS" shall mean (i) the Guarantee and Pledge
Agreement, as amended, supplemented or otherwise modified from time to time,
substantially in the form of EXHIBIT D between Holdings, each Intermediate
Holdco and the Collateral Agent pursuant to which Holdings and each Intermediate
Holdco guarantees the Obligations and, except as provided below, on and after
the Restructuring Date pledges on a silent second basis all Equity Interests it
owns (such pledge to be subject to any pledge referred to in clause (ii) below)
to secure such guarantee, and (ii) one or more Pledge Agreements under
Luxembourg law, reasonably acceptable to the Administrative Agent, as amended,
supplemented or otherwise modified from time to time, pursuant to which Holdings
and/or each Intermediate Holdco on and after the Restructuring Date pledges on a
silent second basis the Equity
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Interests in Parent to secure its guarantee described in clause (i); PROVIDED,
HOWEVER, the unlimited shares of Parent will not be required to be pledged as
provided above (which unlimited shares will not exceed 0.50% of the outstanding
Equity Interests of Parent).
"INDEBTEDNESS" shall mean with respect to any Person:
(a) any indebtedness (including principal and premium) of such
Person, whether or not contingent;
(i) in respect of borrowed money;
(ii) evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or, without double counting,
reimbursement agreements in respect thereof);
(iii) representing the balance deferred and unpaid of the
purchase price of any property (including Capitalized Lease
Obligations), except (A) any such balance that constitutes a trade
payable or similar obligation to a trade creditor, in each case
accrued in the ordinary course of business and (B) reimbursement
obligations in respect of trade letters of credit obtained in the
ordinary course of business with expiration dates not in excess of 365
days from the date of issuance (x) to the extent undrawn or (y) if
drawn, to the extent repaid in full within 20 business days of any
such drawing; or
(iv) representing any Hedging Obligations;
if and to the extent that any of the foregoing Indebtedness (other than
letters of credit and Hedging Obligations) would appear as a liability upon
a balance sheet (excluding the footnotes thereto) of such Person prepared
in accordance with US GAAP;
(b) Disqualified Stock of such Person,
(c) to the extent not otherwise included, any obligation by such
Person to be liable for, or to pay, as obligor, guarantor or otherwise, on
the Indebtedness of another Person (other than by endorsement of negotiable
instruments for collection in the ordinary course of business);
(d) to the extent not otherwise included, Indebtedness of another
Person secured by a Lien on any asset owned by such Person (whether or not
such Indebtedness is assumed by such Person); and
(e) to the extent not otherwise included, the amount then
outstanding (i.e., advanced, and received by, and available for use by, the
Borrower or any of its Restricted Subsidiaries) under any Securitization
Financing (as set forth in the books and records of the Borrower or any
Restricted Subsidiary and confirmed by the agent, trustee or other
representative of the institution or group providing such Securitization
Financing);
PROVIDED, HOWEVER, that
(1) Contingent Obligations incurred in the ordinary course of
business and not in respect of borrowed money; and
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(2) Indebtedness of a third party that is not an Affiliate of
Holdings or any of its Subsidiaries that is attributable to supply or lease
arrangements as a result of consolidation under FIN 46R or attributable to
"take-or-pay" contracts accounted for in a manner similar to a capital
lease under EITF 01-8, in either case so long as (i) such supply or lease
arrangements or such take-or-pay contracts are entered into in the ordinary
course of business, (ii) the Board of Directors of Holdings has approved
any such supply or lease arrangement or any such take-or-pay contract and
(iii) notwithstanding anything to the contrary contained in the definition
of EBITDA, the related expense under any such supply or lease arrangement
or under any such take-or-pay contract is treated as an operating expense
that reduces EBITDA;
shall be deemed not to constitute Indebtedness.
"INDEMNIFIED TAXES" shall mean all Taxes other than Excluded Taxes.
"INDEMNITEE" shall have the meaning assigned to such term in Section
9.05(b).
"INDEPENDENT FINANCIAL ADVISOR" shall mean an accounting, appraisal or
investment banking firm or consultant to Persons engaged in a Permitted Business
of nationally recognized standing that is, in the good faith judgment of the
Borrower, qualified to perform the task for which it has been engaged.
"INFORMATION MEMORANDUM" shall mean the Confidential Information
Memorandum provided to prospective Lenders, as modified or supplemented.
"INITIAL LENDERS" shall mean Morgan Stanley and DBNY.
"INTERCREDITOR AGREEMENT" shall mean an intercreditor agreement
entered into in connection with a Qualified Securitization Financing in form and
substance reasonably satisfactory to DBNY as Administrative Agent under the
Credit Agreement.
"INTEREST COVERAGE RATIO" shall have the meaning assigned to such term
in Section [6.10].
"INTEREST ELECTION REQUEST" shall mean a request by the Borrower to
convert or continue a Borrowing in accordance with Section 2.05.
"INTEREST EXPENSE" shall mean, with respect to any person for any
period, the sum of (a) gross interest expense of such person for such period on
a consolidated basis, including (i) the amortization of debt discounts, (ii) the
amortization of all fees (including fees with respect to Swap Agreements)
payable in connection with the incurrence of Indebtedness to the extent included
in interest expense, (iii) the portion of any payments or accruals with respect
to Capitalized Lease Obligations allocable to interest expense and (iv)
commissions, discounts, yield and other fees and charges incurred in connection
with any Qualified Securitization Financing which are payable to any person
other than Holdings, the Borrower or a Subsidiary Loan Party and (b) capitalized
interest expense of such person during such period. For purposes of the
foregoing, (x) gross interest expense shall be determined after giving effect to
any net payments made or received and costs incurred by Holdings and the
Subsidiaries with respect to Swap Agreements and (y) Interest Expense shall
exclude any interest expense on Indebtedness of a third party that is not an
Affiliate of Holdings or any of its Subsidiaries and that is attributable to
supply or lease arrangements as
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a result of consolidation under FIN 46 or attributable to take-or-pay contracts
that are accounted for in a manner similar to a capital lease under EITF 01-8 in
either case so long as the underlying obligations under any such supply or lease
arrangement or under any such take-or-pay contract are not treated as
Indebtedness as provided in clause (y) of the second sentence of the definition
of Indebtedness.
"INTEREST PAYMENT DATE" shall mean (a) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable to the
Borrowing of which such Term Loan C is a part and, in the case of a Eurocurrency
Borrowing with an Interest Period of more than three months' duration, each day
that would have been an Interest Payment Date had successive Interest Periods of
three months' duration been applicable to such Borrowing and, in addition, the
date of any refinancing or conversion of such Borrowing with or to a Borrowing
of a different Type and (b) with respect to any ABR Loan, the last day of each
calendar quarter.
"INTEREST PERIOD" shall mean as to any Eurocurrency Borrowing, the
period commencing on the date of such Borrowing or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as
applicable, and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 1,
2, 3 or 6 months thereafter (or 9 or 12 months, if at the time of the relevant
Borrowing, all relevant Lenders make interest periods of such length available),
as the applicable Borrower may elect, or the date any Eurocurrency Borrowing is
converted to an ABR Borrowing in accordance with Section 2.05 or repaid or
prepaid in accordance with Section 2.07, 2.08 or 2.09; PROVIDED, HOWEVER, that
if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day.
Interest shall accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period.
"INTERMEDIATE HOLDCO" shall mean each entity, all of the Equity
Interests of which are owned by Holdings, which owns Equity Interests in Parent,
provided the aggregate Equity Interests of Parent owned by all Intermediate
Holdcos will not exceed 0.50% of the outstanding Equity Interests of Parent.
"INVESTMENT GRADE SECURITIES" shall mean: (1) securities issued by the
U.S. government or any agency or instrumentality thereof and directly and fully
guaranteed or insured by the U.S. Government (other than Cash Equivalents) and
in each case with maturities not exceeding two years from the date of
acquisition, (2) investments in any fund that invests exclusively in investments
of the type described in clause (1) which fund may also hold immaterial amounts
of cash pending investment and/or distribution, and (3) corresponding
instruments in countries other than the United States customarily utilized for
high quality investments and in each case with maturities not exceeding two
years from the date of acquisition.
"INVESTMENTS" shall mean with respect to any Person, all direct or
indirect investments by such Person in other Persons (including Affiliates) in
the forms of loans (including guarantees or other obligations), advances or
capital contributions (excluding accounts receivable, trade credit, advances to
customers, commission, travel and similar advances to officers and employees, in
each case made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
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securities issued by any other Person and investments that are required by US
GAAP to be classified on the balance sheet (excluding the footnotes) of such
Person in the same manner as the other investments included in this definition
to the extent such transactions involve the transfer of cash or other property.
If the Borrower or any Subsidiary of the Borrower sells or otherwise disposes of
any Equity Interests of any direct or indirect Subsidiary of the Borrower such
that, after giving effect to any such sale or disposition, such Person is no
longer a Subsidiary of the Borrower, the Borrower will be deemed to have made an
Investment on the date of any such sale or disposition equal to the fair market
value of the Equity Interests of such Subsidiary not sold or disposed of in an
amount determined as provided in Section 6.02(c). For purposes of the definition
of "Unrestricted Subsidiary" and Section 6.02:
(1) "Investments" shall include the portion (proportionate to the
Borrowers' equity interest in such Subsidiary) of the fair market value of
the net assets of a Subsidiary of the Borrower at the time that such
Subsidiary is designated an Unrestricted Subsidiary; PROVIDED, HOWEVER,
that upon a redesignation of such Subsidiary as a Restricted Subsidiary,
the Borrower shall be deemed to continue to have a permanent "Investment"
in an Unrestricted Subsidiary in an amount (if positive) equal to equal to:
(a) the Borrower's "Investment" in such Subsidiary at the
time of such redesignation less
(b) the portion (proportionate to the Borrower's equity
interest in such Subsidiary) of the fair market value of the net
assets of such Subsidiary at the time of such redesignation;
(2) any property transferred to or from an Unrestricted Subsidiary
shall be valued at its fair market value at the time of such transfer, in
each case as determined in good faith by the Borrower; and
(3) any transfer of Capital Stock that results in an entity which
became a Restricted Subsidiary after the Closing Date and not in connection
with the Transaction ceasing to be a Restricted Subsidiary shall be deemed
to be an Investment in an amount equal to the fair market value (as
determined by the Board of Directors of the Borrower in good faith as of
the date of initial acquisition) of the Capital Stock of such entity owned
by the Borrower and the Restricted Subsidiaries immediately after such
transfer.
"JOINT LEAD ARRANGERS" shall have the meaning assigned to such term in
the introductory paragraph of this Agreement.
"JUDGMENT CURRENCY" shall have the meaning assigned to such term in
Section 9.17(b).
"JV REINVESTMENT" shall mean any investment by Borrower or any
Subsidiary in a joint venture to the extent funded with the proceeds of a
reasonably concurrent dividend or other distribution made by such joint venture.
"LENDER" shall mean each financial institution listed on SCHEDULE
2.01, as well as any person that becomes a "Lender" hereunder pursuant to
Section 9.04.
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"LIBO RATE" shall mean, with respect to any Eurocurrency Borrowing for
any Interest Period, the rate per annum determined by the Administrative Agent
at approximately 11:00 a.m., London time, on the Quotation Day for such Interest
Period by reference to the applicable Screen Rate, for a period equal to such
Interest Period; PROVIDED that to the extent that an interest rate is not
ascertainable pursuant to the foregoing provisions of this definition, the "LIBO
Rate" shall be the average (rounded upward, if necessary, to the next 1/100 of
1%) of the respective interest rates per annum at which deposits in the currency
of such Borrowing are offered for such Interest Period to major banks in the
London interbank market by Deutsche Bank AG at approximately 11:00 a.m., London
time, on the Quotation Day for such Interest Period.
"LIEN" shall mean, with respect to any asset, (a) any mortgage, deed
of trust, lien, hypothecation, pledge, encumbrance, charge or security interest
in or on such asset and (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset.
"LOAN DOCUMENTS" shall mean this Agreement, the Holdings Agreement
(whether or not then a Security Document), the other Security Documents, the
Intercreditor Agreement and any promissory note issued under Section 2.07(e).
"LOAN PARTICIPANT" shall have the meaning assigned to such term in
Section 9.04(c).
"LOAN PARTIES" shall mean Holdings, the Borrower and each Subsidiary
Loan Party.
"LOCAL TIME" shall mean New York City time.
"LP GmbH" shall have the meaning assigned to such term in the first
recital of this Agreement.
"MANAGEMENT GROUP" means the group consisting of the directors,
executive officers and other management personnel of the Borrower and Holdings,
as the case may be, on the Closing Date together with (1) any new directors
whose election by such boards of directors or whose nomination for election by
the shareholders of the Borrower or Holdings, as the case may be, was approved
by a vote of a majority of the directors of the Borrower or Holdings, as the
case may be, then still in office who were either directors on the Closing Date
or whose election or nomination was previously so approved and (2) executive
officers and other management personnel of the Borrower or Holdings, as the case
may be, hired at a time when the directors on the Closing Date together with the
directors so approved constituted a majority of the directors of the Borrower or
Holdings, as the case may be.
"MARGIN STOCK" shall have the meaning assigned to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" shall mean the existence of events,
conditions and/or contingencies that have had or are reasonably likely to have
(a) a materially adverse effect on the business, operations, properties, assets
or financial condition of Holdings and the Subsidiaries, taken as a whole, or
(b) a material impairment of the validity or enforceability of, or a material
impairment of the material rights, remedies or benefits available to
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the Lenders, any Issuing Bank, the Administrative Agent or the Collateral Agent
under, any Loan Document.
"MATERIAL INDEBTEDNESS" shall mean Indebtedness (other than Term Loans
C) of any one or more of Holdings or any Subsidiary in an aggregate principal
amount exceeding $45 million.
"MATERIAL SUBSIDIARY" shall mean, at any date of determination, any
Subsidiary (a) whose total assets at the last day of the Test Period ending on
the last day of the most recent fiscal period for which financial statements
have been delivered pursuant to Section 5.04(a) or (b) were equal to or greater
than 2% of the consolidated total assets of Holdings and its consolidated
subsidiaries at such date or (b) whose gross revenues for such Test Period were
equal to or greater than 2% of the consolidated gross revenues of Holdings and
its consolidated subsidiaries for such period, in each case determined in
accordance with US GAAP or (c) that is a Loan Party.
"MATURITY DATE" shall mean the date which is the date 7.5 years after
the Closing Date.
"MAXIMUM RATE" shall have the meaning assigned to such term in Section
9.09.
"MIDCO" shall have the meaning assigned to such term in the first
recital of this Agreement.
"MOODY'S" shall mean Moody's Investors Service, Inc.
"MORGAN STANLEY" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"MORTGAGED PROPERTIES" shall mean the owned real properties of Loan
Parties set forth on SCHEDULE 5.12 and such additional real property (if any)
encumbered by a Mortgage pursuant to Section 5.10.
"MORTGAGES" shall mean the mortgages, deeds of trust, amendments,
assignments of leases and rents and other security documents delivered pursuant
to Section 5.10 or 5.12, as amended, supplemented or otherwise modified from
time to time, with respect to Mortgaged Properties each in a form reasonably
satisfactory to the Administrative Agent.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which Holdings, the Borrower, the Company, CAC or
any ERISA Affiliate (other than one considered an ERISA Affiliate only pursuant
to subsection (m) or (o) of Code Section 414) is making or accruing an
obligation to make contributions, or has within any of the preceding six plan
years made or accrued an obligation to make contributions.
"NET INCOME" shall mean, with respect to any person, the net income
(loss) of such person, determined in accordance with US GAAP and before any
reduction in respect of Preferred Stock dividends or accretion of any Preferred
Stock.
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"NET PROCEEDS" shall mean:
(a) 100% of the cash proceeds actually received by Holdings, the
Borrower or any of their Subsidiaries (including any cash payments received
by way of deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or otherwise and
including casualty insurance settlements and condemnation awards, but only
as and when received) from any loss, damage, destruction or condemnation
of, or any sale, transfer or other disposition (including any sale and
leaseback of assets and any mortgage or lease of real property) to any
person of any asset or assets of Holdings or any Subsidiary (other than
those that would be permitted pursuant to Section 6.05(a) (other than
clause (iii) thereof to the extent in excess of $65 million in any year),
(b), (c), (e), (f), (g), (i), (j), (k), (l) or (o) of the Credit
Agreement), net of (i) attorneys' fees, accountants' fees, investment
banking fees, survey costs, title insurance premiums, and related search
and recording charges, transfer taxes, deed or mortgage recording taxes,
required debt payments (including under the Credit Agreement, even if
waived) and required payments of other obligations relating to the
applicable asset (other than pursuant hereto or to any Permitted Senior
Subordinated Debt Securities), other customary expenses and brokerage,
consultant and other customary fees actually incurred in connection
therewith, (ii) Taxes or Tax Distributions paid or payable as a result
thereof and (iii) appropriate amounts set up as a reserve against
liabilities associated with the assets or business so disposed of and
retained by the selling entity after such sale, transfer or other
disposition, as reasonably determined by Holdings, including, without
limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters, liabilities related to
post-closing purchase price adjustments and liabilities related to any
other indemnification obligation associated with the assets or business so
disposed of, provided that, upon any termination of such reserve, all
amounts not paid-out in connection therewith shall be deemed to be "Net
Proceeds" of such sale, transfer or other disposition, PROVIDED that, if no
Event of Default exists and Holdings shall deliver a certificate of a
Responsible Officer of Holdings to the Administrative Agent promptly
following receipt of any such proceeds setting forth Holdings' intention to
use any portion of such proceeds to acquire, maintain, develop, construct,
improve, upgrade or repair assets useful in the business of Holdings and
the Subsidiaries, or make investments pursuant to Section 6.04(m) of the
Credit Agreement, in each case within 12 months of such receipt and to the
extent not in excess of $110.0 million of Net Proceeds (determined without
giving effect to this proviso) resulting from the sale, transfer or other
disposition of an asset or group of related assets, such portion of such
proceeds shall not constitute Net Proceeds except to the extent not so used
(or contractually committed to be used) within such 12-month period (and,
if contractually committed to be used within such 12-month period, to the
extent not so used within the 18-month period following the date of receipt
of such Net Proceeds), and PROVIDED, FURTHER, that (x) no proceeds realized
in a single transaction or series of related transactions shall constitute
Net Proceeds unless such proceeds shall exceed $5.0 million and (y) no
proceeds shall constitute Net Proceeds in any fiscal year until the
aggregate amount of all such proceeds in such fiscal year shall exceed
$15.0 million,
(b) (x) 100% of the cash proceeds from the incurrence, issuance or
sale by Holdings or any Subsidiary of any Indebtedness (other than Excluded
Indebtedness), net of all taxes and fees (including investment banking
fees), commissions, costs and
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other expenses, in each case incurred in connection with such issuance or
sale less (y) any prepayment under the Credit Agreement (even if waived)
required as a result of such incurrence, issuance or sale; and
(c) (x) the Equity Percentage of the cash proceeds from the
issuance or sale by Holdings of any Equity Interests (other than Excluded
Equity Issuances), net of all taxes and fees (including investment banking
fees), commissions, costs and other expenses, in each case incurred in
connection with such issuance or sale less (y) any prepayment under the
Credit Agreement (even if waived) required as a result of such issuance or
sale.
For purposes of calculating the amount of Net Proceeds, fees, commissions and
other costs and expenses payable to Holdings or the Borrower or any Affiliate of
either of them shall be disregarded, except for financial advisory fees
customary in type and amount paid to Blackstone.
"NEW US HOLDCO" shall mean a company incorporated under the laws of a
state of the United States (A)(i) that owns all of the Equity Interests of US
Holdco or (ii) all of the Equity Interests in which are owned by US Holdco, with
US Holdco contributing or otherwise transferring all of its assets to New US
Holdco and (B) has been formed to effect an initial public offering.
"NON-CONSENTING LENDER" shall have the meaning assigned to such term
in Section 2.17(c).
"OBLIGATIONS" shall mean all amounts owing to the Administrative Agent
or any Lender pursuant to the terms of this Agreement or any other Loan
Document.
"OFFER" shall have the meaning assigned to such term in the second
recital of this Agreement.
"OFFER DOCUMENT" shall mean the Offer Document entitled "Voluntary
Public Takeover Offer (Cash Offer) for all Outstanding Registered Ordinary
Shares with no Par Value of Celanese AG" published on February 2, 2004, as
amended or modified from time to time in accordance with Section 6.09(c).
"OFFICER" shall mean the Chairman of the Board, the Chief Executive
Officer, the President, any Executive Vice President, Senior Vice President or
Vice President, the Treasurer or the Secretary of the Borrower.
"OFFICERS' CERTIFICATE" shall mean a certificate signed on behalf of
the Borrower by two Officers of the Borrower, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Borrower, that meets the requirements set
forth in this Agreement.
"OPINION OF COUNSEL" shall mean a written opinion from legal counsel
who is acceptable to the Administrative Agent. The counsel may be an employee of
or counsel to the Borrower or Holdings.
"OTHER TAXES" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any
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payment made hereunder or from the execution, delivery or enforcement of, or
otherwise with respect to, the Loan Documents, and any and all interest and
penalties related thereto.
"PARENT" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"PARENT AGREEMENT" shall mean the Parent Guarantee and Pledge
Agreement, as amended, supplemented or otherwise modified from time to time,
substantially in the form of EXHIBIT E between Parent and the Collateral Agent,
pursuant to which Parent, if Parent remains the parent corporation of US Holdco
after the Restructuring Date, guarantees the Obligations and pledges in support
thereof (on a silent second basis) the stock of US Holdco that it owns.
"PARENT CPEC" shall mean convertible preferred equity certificates
issued by Parent having no mandatory redemption, repurchase or similar
requirements prior to 91 days after the Term Loan Maturity Date (as defined in
the Credit Agreement), PROVIDED that so long as the Credit Agreement is in
effect, cash distributions and/or payments may be made thereon only to the
extent permitted by Section 6.06(b) or (c) of the Credit Agreement.
"PARENT MERGER" shall mean (i) the merger of Parent with US Holdco,
with US Holdco being the surviving entity, (ii) the contribution by the Parent
to US Holdco of all of the Parent's assets and liabilities or (iii) the
contribution by Holdings to US Holdco (in exchange for stock of US Holdco) of
all of the Equity Interests of the Parent, provided that, in the case of clause
(ii) or (iii) above, (x) Holdings, at its discretion, may subsequently cause the
liquidation of the Parent and (y) US Holdco has assumed all the obligations of
Parent as the Borrower hereunder pursuant to an assumption agreement reasonably
satisfactory to the Administrative Agent (and upon such assumption, Parent shall
be released as the Borrower hereunder).
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"PERFECTION CERTIFICATE" shall mean a certificate in the form of
Exhibit II to the U.S. Collateral Agreement or any other form approved by the
Collateral Agent.
"PERMITTED BUSINESS" shall mean the industrial chemicals business and
any services, activities or businesses incidental or directly related or similar
thereto, any line of business engaged in by the Company on the Closing Date or
any business activity that is a reasonable extension, development or expansion
thereof or ancillary thereto.
"PERMITTED BUSINESS ACQUISITION" shall mean any acquisition of all or
any portion of the assets of, or all the Equity Interests (other than directors'
qualifying shares) in, a Person or division or line of business of a Person (or
any subsequent investment made in a Person, division or line of business
previously acquired in a Permitted Business Acquisition) if (a) such acquisition
was not preceded by, or effected pursuant to, an unsolicited or hostile offer
and (b) immediately after giving effect thereto: (i) no Event of Default shall
have occurred and be continuing or would result therefrom; (ii) all transactions
related thereto shall be consummated in accordance with all material applicable
laws; and (iii) (A) Holdings and the Subsidiaries shall be in compliance, on a
Pro Forma Basis after giving effect to such acquisition or formation, with the
Financial Performance Covenants recomputed as at the last day of the most
recently ended fiscal quarter of Holdings and the Subsidiaries, and Holdings
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shall have delivered to the Administrative Agent a certificate of a Responsible
Officer of Holdings to such effect, together with all relevant financial
information for such Subsidiary or assets, and (B) any acquired or newly formed
Subsidiary shall not be liable for any Indebtedness (except for Indebtedness
permitted by Section 6.01 of the Credit Agreement).
"PERMITTED CURE SECURITY" shall mean (i) any common equity security of
Holdings and/or (ii) any equity security of Holdings having no mandatory
redemption, repurchase or similar requirements prior to 91 days after the
Maturity Date, and upon which all dividends or distributions (if any) shall be
payable solely in additional shares of such equity security.
"PERMITTED DEBT" shall have the meaning assigned to it in Section
6.01(b).
"PERMITTED HOLDER" shall mean each of (i) Blackstone, (ii) any other
Permitted Investor and (iii) the Management Group, with respect to not more than
15% of the total voting power of the Equity Interests of Holdings or after an
initial public offering of its stock, US Holdco or New US Holdco, as the case
may be.
"PERMITTED INVESTMENT" shall mean:
(1) any Investment by the Borrower in any Restricted Subsidiary or
by a Restricted Subsidiary in another Restricted Subsidiary;
(2) any Investment in cash and Cash Equivalents or Investment
Grade Securities;
(3) any Investment by the Borrower or any Restricted Subsidiary of
the Borrower in a Person that is engaged in a Permitted Business if as a
result of such Investment (A) such Person becomes a Restricted Subsidiary
or (B) such Person, in one transaction or a series of related transactions,
is merged, consolidated or amalgamated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated into, the
Borrower or a Restricted Subsidiary;
(4) any Investment in securities or other assets not constituting
cash or Cash Equivalents and received in connection with an Asset Sale made
pursuant to Section 6.04 hereof;
(5) any Investment existing on the CA Closing Date and Investments
made pursuant to binding commitments in effect on the CA Closing Date;
(6) (A) loans and advances to officers, directors and employees,
not in excess of $25.0 million in the aggregate outstanding at any one time
and (B) loans and advances of payroll payments and expenses to officers,
directors and employees in each case incurred in the ordinary course of
business;
(7) any Investment acquired by the Borrower or any Restricted
Subsidiary (A) in exchange for any other Investment or accounts receivable
held by the Borrower or any such Restricted Subsidiary in connection with
or as a result of a bankruptcy, workout, reorganization or recapitalization
of the issuer of such other Investment or accounts receivable or (B) as a
result of a foreclosure by the Borrower or any Restricted Subsidiary with
respect to any secured Investment or other transfer of title with respect
to any secured Investment in default;
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(8) Hedging Obligations permitted under Section 6.01(b)(ix);
(9) any Investment by the Borrower or a Restricted Subsidiary in a
Permitted Business having an aggregate fair market value, taken together
with all other Investments made pursuant to this clause (9) that are at
that time outstanding (without giving effect to the sale of an Unrestricted
Subsidiary to the extent the proceeds of such sale do not consist of cash
and/or marketable securities), not to exceed 3.0% of Total Assets (with the
fair market value of each Investment being measured at the time made and
without giving effect to subsequent changes in value); PROVIDED, HOWEVER,
that if any Investment pursuant to this clause (9) is made in any Person
that is not a Restricted Subsidiary of the Borrower at the date of the
making of such Investment and such Person becomes a Restricted Subsidiary
of the Borrower after such date, such Investment shall thereafter be deemed
to have been made pursuant to clause (1) above and shall cease to have been
made pursuant to this clause (9) for so long as such Person continues to be
a Restricted Subsidiary;
(10) Investments resulting from the receipt of non-cash
consideration in an Asset Sale received in compliance with Section 6.04
hereof;
(11) Investments the payment for which consists of Equity Interests
of the Borrower or any of its parent companies (exclusive of Disqualified
Stock);
(12) guarantees (including Guarantees) of Indebtedness permitted
under Section 6.01 hereof and performance guarantees consistent with past
practice;
(13) any transaction to the extent it constitutes an Investment
that is permitted and made in accordance with the provisions of Section
6.05(b)(ii), (vi), (vii) and (xii) hereof;
(14) Investments of a Restricted Subsidiary acquired after the
Closing Date or of an entity merged into the Borrower or merged into or
consolidated with a Restricted Subsidiary in accordance with Section 6.07
after the Closing Date to the extent that such Investments were not made in
contemplation of or in connection with such acquisition, merger or
consolidation and were in existence on the date of such acquisition, merger
or consolidation;
(15) guarantees by the Borrower or any Restricted Subsidiary of
operating leases (other than Capitalized Lease Obligations) or of other
obligations that do not constitute Indebtedness, in each case entered into
by any Restricted Subsidiary in the ordinary course of business;
(16) Investments consisting of licensing or contribution of
intellectual property pursuant to joint marketing arrangements with other
Persons;
(17) Investments consisting of purchases and acquisitions of
inventory, supplies, materials and equipment or purchases of contract
rights or licenses or leases of intellectual property, in each case in the
ordinary course of business;
(18) any Investment in a Securitization Subsidiary or any
Investment by a Securitization Subsidiary in any other Person in connection
with a Qualified Securitization Financing, including Investments of funds
held in accounts permitted
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or required by the arrangements governing such Qualified Securitization
Financing or any related Indebtedness; PROVIDED, HOWEVER, that any
Investment in a Securitization Subsidiary is in the form of a Purchase
Money Note, contribution of additional Securitization Assets or an equity
interest;
(19) additional Investments in joint ventures of the Borrower or
any of its Restricted Subsidiaries existing on the Closing Date in an
aggregate amount not to exceed $25.0 million;
(20) HC Investments by the Bidco, Midco and LP GmbH;
(21) Investments by the Captive Insurance Subsidiaries of a type
customarily held in the ordinary course of their business and consistent
with past practices and with insurance industry standards; and
(22) additional Investments by the Borrower or any of its
Restricted Subsidiaries having an aggregate Fair Market Value, taken
together with all other Investments made pursuant to this clause (22), not
to exceed 5.0% of Total Assets at the time of such Investment (with the
Fair Market Value of each Investment being measured at the time made and
without giving effect to subsequent changes in value).
"PERMITTED INVESTORS" shall mean (x) Blackstone and (y) other
investors that provide a portion of the Holdco Equity Financing provided that
(i) all such other investors shall be reasonably satisfactory to the Initial
Lenders and (ii) the majority of the Holdco Equity Financing shall be provided
by Blackstone.
"PERMITTED PREPAYMENT DATE" shall mean the earlier of (x) the
Restructuring Date and (y) the fifth anniversary of the Closing Date.
"PERMITTED SECURED REFINANCING INDEBTEDNESS" shall mean any
Indebtedness issued in exchange for, or the net proceeds of which are used to
extend, refinance, renew, replace, defease or refund the Indebtedness being
refinanced (or previous refinancings thereof constituting Permitted Secured
Refinancing Indebtedness) all of which Indebtedness was secured, PROVIDED that
such Permitted Secured Refinancing Indebtedness may be secured only by the
collateral securing the Indebtedness being refinanced (including, in respect of
working capital facilities of Foreign Subsidiaries otherwise permitted under
this Agreement only, any collateral pursuant to after-acquired property clauses
to the extent any such collateral secured the Indebtedness being refinanced) and
on terms no less favorable to the Lenders than those contained in the
documentation governing the Indebtedness being refinanced.
"PERMITTED SENIOR SUBORDINATED DEBT SECURITIES" shall mean (x) Senior
Subordinated Notes and (y) unsecured senior subordinated notes issued by the
Borrower (i) the terms of which (1) do not provide for any scheduled repayment,
mandatory redemption or sinking fund obligation prior to the date on which the
final maturity of the Senior Subordinated Notes occurs (as in effect on the
Closing Date) and (2) provide for subordination to the Obligations under the
Loan Documents to substantially the same extent as the Senior Subordinated Note
Indenture, (ii) the covenants, events of default, guarantees and other terms of
which (other than interest rate and redemption premiums), taken as a whole, are
not more restrictive to Holdings and the Subsidiaries than those in the Senior
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Subordinated Notes and (iii) as to which no Subsidiary of the Borrower is an
obligor that is not an obligor under the Senior Subordinated Notes.
"PERSON" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership, limited liability company or
government, individual or family trusts, or any agency or political subdivision
thereof.
"PLAN" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code and in respect of which Holdings, the Borrower, any Subsidiary
(including the Company) or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"PLEDGED COLLATERAL" shall have the meaning assigned to such term in
the U.S. Collateral Agreement or an Alternate Pledge Agreement, as applicable.
"PREFERRED SHARES" shall mean the 200,000 shares of Series A
Cumulative Exchangeable Preferred Shares due 2016, initial liquidation
preference $1,000 per share, of Blackstone Crystal Holdings Capital Partners
(Cayman) IV Ltd. issued on the CA Closing Date, any other security issued in
exchange for such preferred stock in accordance with its terms as in effect on
the CA Closing Date and any refinancing thereof to the extent such refinancing
involves the same or less annual cash payments and a maturity or mandatory
redemption date the same as or later than the Preferred Shares as in effect on
the CA Closing Date.
"PREFERRED STOCK" shall mean any Equity Interest with preferential
right of payment of dividends or upon liquidation, dissolution or winding up.
"PRESUMED TAX RATE" shall mean the highest effective marginal
statutory combined U.S. federal, state and local income tax rate prescribed for
an individual residing in New York City (taking into account (i) the
deductibility of state and local income taxes for U.S. federal income tax
purposes, assuming the limitation of Section 68(a)(2) of the Code applies and
taking into account any impact of the Code, and (ii) the character (long-term or
short-term capital gain, dividend income or other ordinary income) of the
applicable income).
"PRIME RATE" shall mean the rate of interest per annum announced from
time to time by DBNY as its prime rate in effect at its principal office in New
York City; each change in the Prime Rate shall be effective on the date such
change is publicly announced as being effective.
"PRO FORMA BASIS" shall mean, as to any person, for any events as
described in clauses (i) and (ii) below that occur subsequent to the
commencement of a period for which the financial effect of such events is being
calculated, and giving effect to the events for which such calculation is being
made, such calculation as will give PRO FORMA effect to such events as if such
events occurred on the first day of the four consecutive fiscal quarter period
ended on or before the occurrence of such event (the "REFERENCE PERIOD"):
(i) in making any determination of CA EBITDA, PRO FORMA effect
shall be given to any Asset Disposition and to any Asset Acquisition (or
any Similar Transaction), in each case that occurred during the Reference
Period (or, in the case of determinations made pursuant to the definition
of the term "Asset Acquisition,"
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occurring during the Reference Period or thereafter and through and
including the date upon which the respective Asset Acquisition is
consummated); and
(ii) in making any determination on a Pro Forma Basis, (x) all
Indebtedness (including Indebtedness incurred or assumed and for which the
financial effect is being calculated, whether incurred under this Agreement
or otherwise, but excluding normal fluctuations in revolving Indebtedness
incurred for working capital purposes and amounts outstanding under any
Qualified Securitization Financing, in each case not to finance any
acquisition) incurred or permanently repaid during the Reference Period
(or, in the case of determinations made pursuant to the definition of the
term "Asset Acquisition," occurring during the Reference Period or
thereafter and through and including the date upon which the respective
Asset Acquisition is consummated) shall be deemed to have been incurred or
repaid at the beginning of such period and (y) Interest Expense of such
person attributable to interest on any Indebtedness, for which PRO FORMA
effect is being given as provided in preceding clause (x), bearing floating
interest rates shall be computed on a PRO FORMA basis as if the rates that
would have been in effect during the period for which PRO FORMA effect is
being given had been actually in effect during such periods.
PRO FORMA calculations made pursuant to the definition of the term
"Pro Forma Basis" shall be determined in good faith by a Responsible Officer of
the Borrower and (x) for any fiscal period ending on or prior to the first
anniversary of an Asset Acquisition or Asset Disposition (or any Similar
Transaction), may include adjustments to reflect operating expense reductions
and other operating improvements or synergies reasonably expected to result from
such Asset Acquisition, Asset Disposition or other similar transaction, to the
extent that the Borrower delivers to the Administrative Agent (i) a certificate
of a Financial Officer of the Borrower setting forth such operating expense
reductions and other operating improvements or synergies and (ii) information
and calculations supporting in reasonable detail such estimated operating
expense reductions and other operating improvements or synergies, and (y) for
any fiscal period ending prior to the first anniversary of the CA Closing Date,
PRO FORMA effect shall be given to the Transaction in determining CA EBITDA so
long as the required certifications described in preceding clause (x) are
specifically included in reasonable detail in the respective officer's
certificate and related information and calculations.
"PROJECTIONS" shall mean the projections of Holdings and the
Subsidiaries included in the [Information Memorandum] and any other projections
and any forward-looking statements (including statements with respect to booked
business) of such entities furnished to the Lenders or the Administrative Agent
by or on behalf of Holdings, the Borrower or any of the Subsidiaries prior to
the Closing Date.
"PURCHASE MONEY NOTE" shall mean a promissory note of a Securitization
Subsidiary evidencing a line of credit, which may be irrevocable, from Holdings
or any Subsidiary of Holdings to a Securitization Subsidiary in connection with
a Qualified Securitization Financing, which note is intended to finance that
portion of the purchase price that is not paid in cash or a contribution of
equity and which (a) shall be repaid from cash available to the Securitization
Subsidiary, other than (i) amounts required to be established as reserves, (ii)
amounts paid to investors in respect of interest, (iii) principal and other
amounts owing to such investors and (iv) amounts paid in connection with the
purchase of newly generated receivables and (b) may be subordinated to the
payments described in clause (a).
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"QUALIFIED PROCEEDS" shall mean assets that are used or useful in, or
Capital Stock of any Person engaged in, a Permitted Business; provided that the
fair market value of any such assets or Capital Stock shall be determined by the
Board of Directors in good faith, except that in the event the value of any such
assets or Capital Stock exceeds $25.0 million or more, the fair market value
shall be determined by an Independent Financial Advisor.
"QUALIFIED SECURITIZATION FINANCING" shall mean any Securitization
Financing of a Securitization Subsidiary that meets the following conditions:
(i) the Board of Directors shall have determined in good faith
that such Qualified Securitization Financing (including financing terms,
covenants, termination events and other provisions) is in the aggregate
economically fair and reasonable to the Borrower and the Securitization
Subsidiary;
(ii) all sales of Securitization Assets and related assets to the
Securitization Subsidiary are made at fair market value (as determined in
good faith by the Borrower); and
(iii) the financing terms, covenants, termination events and other
provisions thereof shall be market terms (as determined in good faith by
the Borrower) and may include Standard Securitization Undertakings.
The grant of a security interest in any Securitization Assets of the
Borrower or any of its Restricted Subsidiaries (other than a Securitization
Subsidiary) to secure Indebtedness under the Credit Agreement and any
Refinancing Indebtedness with respect thereto shall not be deemed a
Qualified Securitization Financing.
"QUOTATION DAY" shall mean, with respect to any Eurocurrency Borrowing
and any Interest Period, the day on which it is market practice in the relevant
interbank market for prime banks to give quotations for deposits in the currency
of such Borrowing for delivery on the first day of such Interest Period. If such
quotations would normally be given by prime banks on more than one day, the
Quotation Day will be the last of such days.
"RECEIVABLES NET INVESTMENT" shall mean the aggregate cash amount paid
by the lenders or purchasers under any Qualified Securitization Financing in
connection with their purchase of, or the making of loans secured by,
Securitization Assets or interests therein, as the same may be reduced from time
to time by collections with respect to such Securitization Assets or otherwise
in accordance with the terms of the governing documentation; PROVIDED, HOWEVER,
that if all or any part of such Receivables Net Investment shall have been
reduced by application of any distribution and thereafter such distribution is
rescinded or must otherwise be returned for any reason, such Receivables Net
Investment shall be increased by the amount of such distribution, all as though
such distribution had not been made.
"REFERENCE PERIOD" shall have the meaning assigned to such term in the
definition of the term "Pro Forma Basis."
"REFINANCED TERM LOANS" shall have the meaning assigned to such term
in Section 9.08(e).
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"REFINANCING INDEBTEDNESS" shall have the meaning assigned to such
term in Section 6.01(b).
"REFUNDING CAPITAL STOCK" shall have the meaning assigned to such term
in Section 6..02(b)
"REGISTER" shall have the meaning assigned to such term in Section
9.04(b).
"REGULATION U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"REGULATION X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"RELATED PARTIES" shall mean, with respect to any specified person,
such person's Affiliates and the respective directors, officers, employees,
agents and advisors of such person and such person's Affiliates.
"RELEASE" shall mean any spilling, leaking, seepage, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing, depositing, emanating or migrating in, into, onto or through the
Environment.
"REPLACEMENT TERM LOANS" shall have the meaning assigned to such term
in Section 9.08(e).
"REPORTABLE EVENT" shall mean any reportable event as defined in
Section 4043(c) of ERISA or the regulations issued thereunder, other than those
events as to which the 30-day notice period referred to in Section 4043(c) of
ERISA has been waived, with respect to a Plan (other than a Plan maintained by
an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Section 414 of the Code).
"REQUIRED LENDERS" shall mean, at any time, Lenders having Term Loan C
Commitments or outstanding Term Loans C, as the case may be, that represent more
than 50% of the sum of all Term Loan C Commitments or outstanding Term Loans C,
as the case may be.
"REQUIRED PERCENTAGE" shall mean, with respect to an Excess Cash Flow
Period, (i) 75% or (ii) 50% for any Excess Cash Flow Period ending on or after
December 31, 2005, if the Total Leverage Ratio at the end of such Excess Cash
Flow Period was less than 3.00 to 1.00.
"RESET DATE" shall have the meaning assigned to such term in Section
1.03(a).
"RESPONSIBLE OFFICER" of any Person shall mean any executive officer
or financial officer of such Person and any other officer or similar official
thereof responsible for the administration of the obligations of such Person in
respect of this Agreement.
"RESTRICTED INVESTMENT" shall mean an Investment other than a
Permitted Investment.
"RESTRICTED PAYMENT" shall have the meaning assigned to such term in
Section 6.02(a).
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"RESTRICTED SUBSIDIARY" shall mean at any time, any direct or indirect
Subsidiary of the Borrower that is not then an Unrestricted Subsidiary;
PROVIDED, HOWEVER, that upon the occurrence of an Unrestricted Subsidiary
ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be included in
the definition of Restricted Subsidiary.
"RESTRUCTURING" shall mean (i) the distribution or sale (in return for
an unsecured promissory note of the Company reasonably satisfactory to the
Initial Lenders) to the Company of all the capital stock of CAC, (ii) the sale
to Bidco by the Company of all such capital stock in return for an unsecured
promissory note of Bidco (which note shall be reasonably satisfactory to the
Initial Lenders), (iii) the sale by Bidco of all or a portion of such capital
stock to Parent in return for the cancellation of a portion of the intercompany
debt owed by Bidco to Parent as referred to in the eighth recital to this
Agreement, (iv) the distribution of any remaining portion of such capital stock
by Bidco to Midco, (v) the sale in return for the cancellation of a portion of
the intercompany debt owed by Midco to Parent as referred to in the eighth
recital to this Agreement, or distribution, by Midco to Parent of all such
capital stock of CAC that it has acquired, (vi) Parent Merger and CAC becoming a
direct subsidiary of US Holdco or an indirect subsidiary of US Holdco so long as
each company between US Holdco and CAC is (or concurrently becomes) a Domestic
Subsidiary Loan Party, (vii) the execution and delivery of all the Loan
Documents described in Part II of SCHEDULE 1.01(b) and (viii) the satisfaction
of clause (h) of the definition of Collateral Guarantee Requirements with
respect to all Liens created pursuant to the Loan Documents referred to in
clause (vii).
"RESTRUCTURING DATE" shall mean the date after the Domination
Agreement has been registered and become effective on which all of the
Restructuring has been completed, it being agreed that, notwithstanding the
foregoing, the Restructuring Date shall be the Restructuring Date under and as
defined in the Credit Agreement.
"RETIRED CAPITAL STOCK" shall have the meaning assigned such term in
Section 6.02(b).
"REVOLVING FACILITY COMMITMENT" and "REVOLVING FACILITY LOANS" each
shall have the meaning assigned to such term in the Credit Agreement.
"S&P" shall mean Standard & Poor's Ratings Group, Inc.
"SALE AND LEASE-BACK TRANSACTION" shall have the meaning assigned to
such term in Section 6.03 of the Credit Agreement.
"SCREEN RATE" shall mean the British Bankers Association Interest
Settlement Rate for the applicable Interest Period displayed on the appropriate
page of the Telerate screen selected by the Administrative Agent. If the
relevant page is replaced or the service ceases to be available, the
Administrative Agent (after consultation with the Borrower and the Lenders) may
specify another page or service displaying the appropriate rate.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
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"SECURITIZATION ASSETS" shall mean any accounts receivable, inventory,
royalty or revenue streams from sales of inventory subject to a Qualified
Securitization Financing.
"SECURITIZATION FEES" shall mean reasonable distributions or payments
made directly or by shall mean of discounts with respect to any participation
interest issued or sold in connection with, and other fees paid to a Person that
is not a Securitization Subsidiary in connection with any Qualified
Securitization Financing.
"SECURITIZATION FINANCING" shall mean any transaction or series of
transactions that may be entered into by the Borrower or any of its Subsidiaries
pursuant to which the Borrower or any of its Subsidiaries may sell, convey or
otherwise transfer to (a) a Securitization Subsidiary (in the case of a transfer
by the Borrower or any of its Subsidiaries) and (b) any other Person (in the
case of a transfer by a Securitization Subsidiary), or may grant a security
interest in, any Securitization Assets (whether now existing or arising in the
future) of the Borrower or any of its Subsidiaries, and any assets related
thereto including, without limitation, all collateral securing such
Securitization Assets, all contracts and all guarantees or other obligations in
respect of such Securitization Assets, proceeds of such Securitization Assets
and other assets which are customarily transferred or in respect of which
security interests are customarily granted in connection with asset
securitization transactions involving Securitization Assets and any Hedging
Obligations entered into by the Borrower or any such Subsidiary in connection
with such Securitization Assets.
"SECURITIZATION REPURCHASE OBLIGATION" shall mean any obligation of a
seller of Securitization Assets in a Qualified Securitization Financing to
repurchase Securitization Assets arising as a result of a breach of a
representation, warranty or covenant or otherwise, including as a result of a
receivable or portion thereof becoming subject to any asserted defense, dispute,
off-set or counterclaim of any kind as a result of any action taken by, any
failure to take action by or any other event relating to the seller.
"SECURITIZATION SUBSIDIARY" shall mean a Wholly Owned Subsidiary of
the Borrower (or another Person formed for the purposes of engaging in a
Qualified Securitization Financing in which the Borrower or any Subsidiary of
the Borrower makes an Investment and to which Holdings or any Subsidiary of the
Borrower transfers Securitization Assets and related assets) which engages in no
activities other than in connection with the financing of Securitization Assets
of the Borrower or its Subsidiaries, all proceeds thereof and all rights
(contractual and other), collateral and other assets relating thereto, and any
business or activities incidental or related to such business, and which is
designated by the Board of Directors of the Borrower or such other Person (as
provided below) as a Securitization Subsidiary and (a) no portion of the
Indebtedness or any other obligations (contingent or otherwise) of which (i) is
guaranteed by the Borrower or any other Subsidiary of the Borrower (excluding
guarantees of obligations (other than the principal of, and interest on,
Indebtedness) pursuant to Standard Securitization Undertakings), (ii) is
recourse to or obligates Holdings or any other Subsidiary of the Borrower in any
way other than pursuant to Standard Securitization Undertakings or (iii)
subjects any property or asset of the Borrower or any other Subsidiary of the
Borrower, directly or indirectly, contingently or otherwise, to the satisfaction
thereof, other than pursuant to Standard Securitization Undertakings, (b) with
which neither the Borrower nor any other Subsidiary of the Borrower has any
material contract, agreement, arrangement or understanding other than on terms
which the Borrower reasonably believes to be no less favorable to the Borrower
or such Subsidiary than those that might be obtained at the time from Persons
that are not Affiliates of Holdings and (c) to which neither the Borrower nor
any other Subsidiary of the Borrower has any obligation to
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maintain or preserve such entity's financial condition or cause such entity to
achieve certain levels of operating results. Any such designation by the Board
of Directors of the Borrower or such other Person shall be evidenced to the
Administrative Agent by filing with the Administrative Agent a certified copy of
the resolution of the Board of Directors of the Borrower or such other Person
giving effect to such designation and an Officers' Certificate certifying that
such designation complied with the foregoing conditions.
"SECURITY DOCUMENTS" shall mean (x) prior to the Restructuring Date,
the Bidco Pledge and (y) on and after the Restructuring Date, each of the
Mortgages, the Holdings Agreements, the U.S. Collateral Agreement and all
Supplements thereto and (if executed) the Parent Agreement, any Alternate Pledge
Agreement then in effect and each of the security agreements, mortgages and
other instruments and documents executed and delivered pursuant to any of the
foregoing or pursuant to Section 5.10.
"SENIOR SUBORDINATED BRIDGE B FACILITY" shall have the meaning
assigned to such term in the fifth recital of this Agreement.
"SENIOR SUBORDINATED BRIDGE B LOAN AGREEMENT" shall mean the Senior
Subordinated Bridge B Loan Agreement dated as of April 6, 2004 among Holdings,
Parent, and INTER ALIA, the Initial Lenders as in effect immediately prior to
the Closing Date.
"SENIOR SUBORDINATED BRIDGE B LOANS" shall mean the loans made under
the Senior Subordinated Bridge B Loan Agreement.
"SENIOR SUBORDINATED BRIDGE C FACILITY" shall have the meaning
assigned to such term in the fourth recital of this Agreement.
"SENIOR SUBORDINATED BRIDGE C LOAN AGREEMENT" shall mean the Senior
Subordinated Bridge C Loan Agreement dated as of April 6, 2004 among Holdings,
Parent and INTER ALIA, the Initial Lenders as in effect immediately prior to the
Closing Date.
"SENIOR SUBORDINATED BRIDGE C LOANS" shall mean the loans made under
the Senior Subordinated Bridge C Loan Agreement.
"SENIOR SUBORDINATED NOTE INDENTURE" shall mean the Indenture or
Indentures under which the Senior Subordinated Notes are issued, between the
Borrower and the trustee named therein, substantially in the form delivered to
the Lenders prior to the Closing Date (with any final changes adverse to the
Lenders to be reasonably satisfactory to the Administrative Agent), and, in each
case, as amended, restated, supplemented or otherwise modified from time to time
in accordance with the requirements thereof and of this Agreement.
"SENIOR SUBORDINATED NOTES" shall mean the senior subordinated notes
in an aggregate principal amount up to $1 billion issued in Dollars (the "SENIOR
SUBORDINATED NOTES (DOLLARS)") and EURO 200 million issued in Euros (the "SENIOR
SUBORDINATED NOTES (EUROS)") which notes are issued by Parent and will be
assumed by US Holdco on the Restructuring Date and shall be guaranteed on a
senior subordinated basis by Holdings and on and after the Restructuring Date by
all other entities then guaranteeing the CA Term Loans, as amended, restated
supplemented or otherwise modified from time to time in accordance with the
requirements thereof and of this Agreement.
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"SHAREHOLDERS' AGREEMENT" shall mean the Shareholders' Agreement among
Blackstone and/or its Affiliates and any of the Restricted Subsidiaries and the
shareholders party thereto.
"SIMILAR TRANSACTION" shall mean any transaction that is similar to an
Asset Disposition or Asset Acquisition that requires a waiver or consent by CA
Required Lenders under Section 6.04 or 6.05 of the Credit Agreement.
"SQUEEZE-OUT" shall mean the procedures set out in sections 327a ET
SEQ. of the German Stock Corporation Act in respect of the acquisition of the
shares of the Company by Bidco.
"STANDARD SECURITIZATION UNDERTAKINGS" shall mean representations,
warranties, covenants and indemnities entered into by the Borrower or any
Subsidiary of the Borrower which the Borrower has determined in good faith to be
customary in a Securitization Financing, including, without limitation, those
relating to the servicing of the assets of a Securitization Subsidiary, it being
understood that any Securitization Repurchase Obligation shall be deemed to be a
Standard Securitization Undertaking.
"STATED MATURITY" shall mean with respect to any installment of
interest or principal on any series of Indebtedness, the day on which the
payment of interest or principal was scheduled to be paid in the original
documentation governing such Indebtedness, and will not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior
to the date originally scheduled for the payment thereof.
"STATUTORY RESERVES" shall mean, with respect to any currency, any
reserve, liquid asset or similar requirements established by any Governmental
Authority of the United States of America or of the jurisdiction of such
currency or any jurisdiction in which Term Loans C in such currency are made to
which banks in such jurisdiction are subject for any category of deposits or
liabilities customarily used to fund loans in such currency or by reference to
which interest rates applicable to Term Loans C in such currency are determined.
"SUBSIDIARY" shall mean, with respect to any person (herein referred
to as the "PARENT"), any corporation, partnership, association or other business
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or more than 50%
of the general partnership interests are, at the time any determination is being
made, directly or indirectly, owned, Controlled, or held (or that is, at the
time any determination is made, otherwise Controlled) by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of
the parent, provided that Estech GmbH & Co. KG and Estech Managing GmbH shall
not constitute subsidiaries.
"SUBSIDIARY" shall mean, unless the context otherwise requires, a
subsidiary of Holdings.
"SUBSIDIARY LOAN PARTY" shall mean each Subsidiary that is a Domestic
Subsidiary Loan Party.
"SUCCESSOR COMPANY" shall have the meaning assigned such term in
Section 6.06.
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"SUCCESSOR GUARANTOR" shall have the meaning assigned such term in
Section 6.07.
"SUPPLEMENT" shall have the meaning assigned to that term in the U.S.
Collateral Agreement.
"SWAP AGREEMENT" shall mean any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value or
any similar transaction or any combination of these transactions, PROVIDED that
no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of Holdings or any of its Subsidiaries shall be a Swap Agreement.
"TAX DISTRIBUTION" shall mean any distribution described in Section
6.02(b)(ix).
"TAXES" shall mean any and all present or future taxes, levies,
imposts, duties (including stamp duties), deductions, charges (including AD
VALOREM charges) or withholdings imposed by any Governmental Authority and any
and all interest and penalties related thereto.
"TERM LOAN C" shall mean each of the term loans made to the Borrower
pursuant to Section 2.01. Each Term Loan C shall be a Eurocurrency Loan or an
ABR Loan.
"TERM LOAN C COMMITMENT" shall mean, with respect to each Lender, the
commitment of such Lender to make Term Loans C equal to the amount set forth
opposite such Lender's name on SCHEDULE 2.01 directly below the column entitled
"Term Loan C Commitment" or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Term Loan C Commitment, as applicable. The
aggregate Term Loan C Commitments on the Closing Date is $350 million.
"TEST PERIOD" shall mean, on any date of determination, the period of
four consecutive fiscal quarters of Holdings then most recently ended (taken as
one accounting period).
"TOTAL ASSETS" shall mean the total consolidated assets of the
Borrower and its Restricted Subsidiaries, as shown on the most recent balance
sheet of the Borrower.
"TOTAL LEVERAGE RATIO" shall mean, on any date, the ratio of (a)
Consolidated Net Debt as of such date to (b) CA EBITDA for the period of four
consecutive fiscal quarters of Holdings most recently ended as of such date, all
determined on a consolidated basis in accordance with US GAAP; PROVIDED that any
Asset Disposition or any Asset Acquisition (or any Similar Transaction) or
incurrence or repayment of Indebtedness (excluding normal fluctuations in
revolving Indebtedness incurred for working capital purposes) has occurred
during the relevant Test Period, CA EBITDA shall be determined for the
respective Test Period on a Pro Forma Basis for such occurrences.
"TRANSACTION" shall mean, collectively, (i) the transactions to occur
on or prior to the CA Closing Date pursuant to the Transaction Documents,
including (a) the consumma-
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tion of the Offer; (b) the execution and delivery of the CA Loan Documents and
the initial borrowings thereunder; (c) the Holdco Equity Financing; (d) the
incurrence of the Senior Subordinated Bridge B Loans and the Senior Subordinated
Bridge C Loans; and (e) the payment of all fees and expenses to be paid on or
prior to the CA Closing Date and owing in connection with the foregoing and (ii)
the purchase of shares of the Company by Bidco subsequent to the CA Closing Date
pursuant to the Offer during the subsequent offer period, pursuant to a
Squeeze-Out or otherwise.
"TRANSACTION COSTS" shall mean the out-of-pocket costs and expenses
incurred by Holdings or any Subsidiary in connection with the Offer, the
financing of the Offer and any refinancing of such financing (including fees
paid to the Initial Lenders and other Lenders and fees and expenses of the
Permitted Investors and their counsel and advisors).
"TRANSACTION DOCUMENTS" shall mean the Offer Document, the
documentation governing the Senior Subordinated Bridge B Loans and the Senior
Subordinated Bridge C Loans (including the Bidco Pledge), the documentation
governing Holdco Equity Financing and the CA Loan Documents.
"TYPE", when used in respect of any Term Loan C or Borrowing, shall
refer to the Rate by reference to which interest on such Term Loan C or on the
Term Loans C comprising such Borrowing is determined. For purposes hereof, the
term "RATE" shall include the Adjusted LIBO Rate and the Alternate Base Rate.
"UNRESTRICTED SUBSIDIARY" shall mean:
(i) any Subsidiary of the Borrower that at the time of
determination is an Unrestricted Subsidiary (as designated by the Board of
Directors of the Borrower, as provided below); and
(ii) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors of the Borrower may designate any Subsidiary of the
Borrower (including any existing Subsidiary and any newly acquired or newly
formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary
or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or
owns or holds any Lien on, any property of, the Borrower or any Subsidiary
of the Borrower (other than any Subsidiary of the Subsidiary to be so
designated), provided that (a) any Unrestricted Subsidiary must be an
entity of which shares of the Capital Stock or other equity interests
(including partnership interests) entitled to cast at least a majority of
the votes that may be cast by all shares or equity interests having
ordinary voting power for the election of directors or other governing body
are owned, directly or indirectly, by the Borrower, (b) such designation
complies with Section 6.01 hereof and (c) each of (x) the Subsidiary to be
so designated and (y) its Subsidiaries has not at the time of designation,
and does not thereafter, create, incur, issue, assume, guarantee or
otherwise become directly or indirectly liable with respect to any
Indebtedness pursuant to which the lender has recourse to any of the assets
of the Borrower or any Restricted Subsidiary. The Board of Directors may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
PROVIDED that, immediately after giving effect to such designation, no
Default or Event of Default shall have occurred and be continuing and
either (A) the Fixed Charge Coverage Ratio would be at least 2.00 to 1.00
or (B) the Fixed Charge Coverage Ratio would be greater than immediately
prior
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to such designation, in each case on a PRO FORMA basis taking into account
such designation. Any such designation by the Board of Directors shall be
notified by the Borrower to the Administrative Agent by promptly filing
with the Administrative Agent a copy of the board resolution giving effect
to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing provisions.
"U.S. BANKRUPTCY CODE" shall mean Title 11 of the United States Code,
as amended, or any similar federal or state law for the relief of debtors.
"U.S. COLLATERAL AGREEMENT" shall mean the Guarantee and Collateral
Agreement, as amended, supplemented or otherwise modified from time to time,
substantially in the form of EXHIBIT C among the Borrower, CAC, the CAC
Guarantor Subsidiaries, all other Subsidiaries party thereto and the Collateral
Agent.
"US GAAP" shall mean generally accepted accounting principles in
effect from time to time in the United States, applied on a consistent basis,
subject to the provisions of Section 1.02.
"US HOLDCO" shall have the meaning assigned to such term in the first
recital of this Agreement.
"WHOLLY OWNED SUBSIDIARY" of any person shall mean a subsidiary of
such person, all of the Equity Interests of which (other than directors'
qualifying shares or nominee or other similar shares required pursuant to
applicable law) are owned by such person or another Wholly Owned Subsidiary of
such person, PROVIDED that the Company and its Wholly Owned Subsidiaries shall
on and after the Closing Date constitute Wholly Owned Subsidiaries of the
Parent.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
"WORKING CAPITAL" shall mean, with respect to Holdings and the
Subsidiaries on a consolidated basis at any date of determination, Current
Assets at such date of determination minus Current Liabilities at such date of
determination; PROVIDED that, for purposes of calculating Excess Cash Flow,
increases or decreases in Working Capital shall be calculated without regard to
any changes in Current Assets or Current Liabilities as a result of (a) any
reclassification in accordance with US GAAP of assets or liabilities, as
applicable, between current and noncurrent or (b) the effects of purchase
accounting.
SECTION 1.02 TERMS GENERALLY. The definitions set forth or referred to
in Section 1.01 shall apply equally to both the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include,"
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation." All references herein to Articles, Sections, Exhibits and Schedules
shall be deemed references to Articles and Sections of, and Exhibits and
Schedules to, this Agreement unless the context shall otherwise require. Except
as otherwise expressly provided herein, any reference in this Agreement to any
Loan Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time. Except as otherwise expressly provided
herein, all terms of an
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accounting or financial nature shall be construed in accordance with US GAAP, as
in effect from time to time; PROVIDED that, if Holdings notifies the
Administrative Agent that Holdings requests an amendment to any provision hereof
to eliminate the effect of any change occurring after the Closing Date in US
GAAP or in the application thereof on the operation of such provision (or if the
Administrative Agent notifies Holdings that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in US GAAP or in the
application thereof, then such provision shall be interpreted on the basis of US
GAAP as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision amended
in accordance herewith. For the purposes of determining compliance with Section
6.01 through Section 6.09 with respect to any amount in a currency other than
Dollars, amounts shall be deemed to equal the Dollar Equivalent thereof
determined using the Exchange Rate calculated as of the Business Day on which
such amounts were incurred or expended, as applicable. In addition, for purposes
of this Agreement, inventory will be deemed to be accounted for on a
"first-in-first-out" basis.
SECTION 1.03 EXCHANGE RATES. Prior to the CA Termination Date when the
Administrative Agent under the Credit Agreement determines an Exchange Rate,
such determination shall be applicable to all computations hereunder. After the
CA Termination Date, not later than 1:00 p.m., New York City time, on each ER
Calculation Date, the Administrative Agent shall (i) determine the Exchange Rate
as of such ER Calculation Date and (ii) give notice thereof to the Borrower. The
Exchange Rates so determined shall become effective on the first Business Day
immediately following the relevant ER Calculation Date (a "RESET DATE"), shall
remain effective until the next succeeding Reset Date, and shall for all
purposes of this Agreement (other than any other provision expressly requiring
the use of an Exchange Rate calculated as of a specified date) be the Exchange
Rates employed in converting any amounts between Dollars and other currencies.
ARTICLE II
THE LOANS
SECTION 2.01 LOANS. Subject to the terms and conditions set forth
herein, each Lender agrees to make term loans to the Borrower in Dollars on the
Closing Date in a principal amount not to exceed its Term Loan C Commitment at
such time PROVIDED, that any Term Loan C that is repaid may not be reborrowed.
SECTION 2.02 LOANS AND BORROWINGS. (a) The failure of any Lender to
make any Term Loan C required to be made by it shall not relieve any other
Lender of its obligations hereunder; PROVIDED that the Term Loan C Commitments
of the Lenders are several and no Lender shall be responsible for any other
Lender's failure to make Term Loans C as required.
(b) Subject to Section 2.12, (i) each Borrowing shall be comprised
entirely of ABR Loans or Eurocurrency Loans as the Borrower may request in
accordance herewith. Each Lender at its option may make any ABR Loan or
Eurocurrency Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Term Loan C; PROVIDED that any exercise of such option shall
not affect the obligation of the Borrower to repay such Term Loan C in
accordance with the terms of this Agreement and such Lender shall not be
entitled to any amounts payable under Section 2.13, 2.15 or 2.18 solely in
respect of increased costs resulting from such exercise and existing at the time
of such exercise.
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(c) At the commencement of each Interest Period for any
Eurocurrency Borrowing, such Borrowing shall be in an aggregate amount that is
an integral multiple of the Borrowing Multiple and not less than the Borrowing
Minimum. At the time that each ABR Borrowing is made, such Borrowing shall be in
an aggregate amount that is an integral multiple of the Borrowing Multiple and
not less than the Borrowing Minimum. Borrowings of more than one Type may be
outstanding at the same time; PROVIDED that there shall not at any time be more
than a total of eight Eurocurrency Borrowings.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03 REQUESTS FOR BORROWINGS. To request any Borrowing, the
Borrower shall notify the Administrative Agent of such request by telephone (a)
in the case of a Eurocurrency Borrowing, not later than 11:00 a.m., Local Time,
three Business Days before the date of the proposed Borrowing or (b) in the case
of an ABR Borrowing, not later than 12:00 noon, Local Time, one Business Day
before the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the Borrower. Each such
telephonic and written Borrowing Request shall specify the following information
in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing (expressed in
Dollars);
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing;
(iv) in the case of a Eurocurrency Borrowing, the Interest Period
to be applicable thereto, which shall be a period contemplated by clause
(a) of the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurocurrency Borrowing, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Term Loan C to be made as part of the requested
Borrowing.
SECTION 2.04 FUNDING OF BORROWINGS. (a) Each Lender shall make its
Term Loan C on the Closing Date by wire transfer of immediately available funds
by 12:00 noon, Local Time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders. The
Administrative Agent will make the proceeds of funds made available to it
pursuant to the preceding sentence available to the Borrower by
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promptly crediting the amounts so received, in like funds, to an account of the
Borrower maintained with the Administrative Agent in New York City.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the Closing Date that such Lender will not make available
to the Administrative Agent such Lender's Term Loan C, the Administrative Agent
may assume that such Lender has made such Term Loan C available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the applicable Borrower a corresponding amount. In
such event, if a Lender has not in fact made its Term Loan C available to the
Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand (without
duplication) such corresponding amount (with demand to be first made on such
Lender if legally possible) with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (i) in the case of
such Lender, the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of the Borrower, the interest rate applicable
to ABR Loans. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender's Term Loan C included in such
Borrowing.
SECTION 2.05 INTEREST ELECTIONS. (a) Each Borrowing shall be of the
Type specified in the applicable Borrowing Request and, in the case of a
Eurocurrency Borrowing, shall have an Interest Period as specified in such
Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing
to a different Type or to continue such Borrowing and, in the case of a
Eurocurrency Borrowing, may elect Interest Periods therefor, all as provided in
this Section. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders, and the Term Loans C comprising each such
portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if such Borrower
were requesting a Borrowing of the Type. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
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(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by clause (a) of the
definition of the term "Interest Period."
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the applicable Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request,
the Administrative Agent shall advise each Lender to which such Interest
Election Request relates of the details thereof and of such Lender's portion of
each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurocurrency Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
continued as a Eurocurrency Borrowing with an Interest Period of one month's
duration commencing on the last day of such Interest Period. Notwithstanding any
contrary provision hereof, if an Event of Default has occurred and is continuing
and the Administrative Agent, at the written request (including a request
through electronic means) of the Required Lenders, so notifies the Borrower,
then, so long as an Event of Default is continuing (i) no outstanding Borrowing
may be converted to or continued as a Eurocurrency Borrowing and (ii) unless
repaid, each Eurocurrency Borrowing shall be converted to an ABR Borrowing at
the end of the Interest Period applicable thereto.
SECTION 2.06 TERMINATION OF COMMITMENTS. All Term Loan C Commitments
shall terminate on the Closing Date promptly following the making of the Term
Loans C.
SECTION 2.07 REPAYMENT; EVIDENCE OF DEBT, ETC. (a) The Borrower hereby
unconditionally promises to pay in Dollars to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Term Loan C of
such Lender as provided in Section 2.08.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of each Borrower to
such Lender resulting from each Term Loan C made by such Lender, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Term Loan C made hereunder, the Type thereof
and the Interest Period (if any) applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) any amount received by the
Administrative Agent hereunder for the account of the Lenders and each Lender's
share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be PRIMA FACIE evidence of the
existence and amounts of the obligations recorded therein; PROVIDED that the
failure of any Lender or the Administrative
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Agent to maintain such accounts or any error therein shall not in any manner
affect the obligation of the Borrower to repay the Term Loans C in accordance
with the terms of this Agreement.
(e) Any Lender may request that Term Loans C made by it be
evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Term Loans C evidenced by such promissory note and interest thereon shall at all
times (including after assignment pursuant to Section 9.04) be represented by
one or more promissory notes in such form payable to the order of the payee
named therein (or, if such promissory note is a registered note, to such payee
and its registered assigns).
SECTION 2.08 REPAYMENT OF TERM LOANS C. (a) To the extent not
previously paid, all Term Loans C shall be due and payable on the Maturity Date.
(b) Prepayment of Term Loans C from all Net Proceeds or Excess
Cash Flow pursuant to Section 2.09(b) or 2.09(c), respectively, shall be applied
among the Term Loans C on a PRO RATA basis (and thereafter PRO RATA among each
Borrowing being repaid).
(c) Any Lender holding Term Loans C may elect, on not less than
two Business Days' prior written notice to the Administrative Agent with respect
to any mandatory prepayment made pursuant to Section 2.09(b) or 2.09(c), not to
have such prepayment applied to such Lender's Term Loans C, in which case the
amount not so applied shall be retained by the Borrower (and applied as it
elects).
(d) Prior to any repayment of any Borrowing, the Borrower shall
select the Borrowing or Borrowings to be repaid and shall notify the
Administrative Agent by telephone (confirmed by telecopy) of such selection not
later than 2:00 p.m., Local Time, (i) in the case of an ABR Borrowing, one
Business Day before the scheduled date of such repayment and (ii) in the case of
a Eurocurrency Borrowing, three Business Days before the scheduled date of such
repayment. Each repayment of a Borrowing shall be applied ratably to the Term
Loans C included in the repaid Borrowing. Except as provided in Section 2.11(d),
repayments of Borrowings shall be accompanied by accrued interest on the amount
repaid.
SECTION 2.09 PREPAYMENTS, ETC. (a) The Borrower shall have the right
at any time and from time to time on and after the Permitted Prepayment Date to
prepay any Borrowing in whole or in part, without premium (except as provided
below) or penalty (but subject to Section 2.14), in an aggregate principal
amount that is an integral multiple of the Borrowing Multiple and not less than
the Borrowing Minimum or, if less, the amount outstanding, subject to prior
notice in accordance with Section 2.08(d), PROVIDED that all prepayments of
principal made prior to the third anniversary of the Closing Date shall be made
at 101% of such principal amount.
(b) Holdings and the Borrower shall apply all Net Proceeds
promptly upon receipt thereof to prepay Term Loans C at a price equal to 100% of
the principal amount being repaid in accordance with paragraph (b) of Section
2.08.
(c) Not later than 90 days after the end of each Excess Cash Flow
Period, Holdings shall calculate Excess Cash Flow for such Excess Cash Flow
Period and shall apply
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an amount equal to the Required Percentage of such Excess Cash Flow to prepay
Term Loans C at a price equal to 100%) of the principal amount being repaid in
accordance with paragraph (b) of Section 2.08. Not later than the date on which
Holdings is required to deliver financial statements with respect to the end of
each Excess Cash Flow Period under Section 5.04(a), Holdings will deliver to the
Administrative Agent a certificate signed by a Financial Officer of Holdings
setting forth the amount, if any, of Excess Cash Flow for such Period and the
calculation thereof in reasonable detail.
SECTION 2.10 FEES. The Borrower agrees to pay to the Administrative
Agent, for the account of the Administrative Agent, the fees set forth in a fee
letter dated ________, as amended, restated, supplemented or otherwise modified
from time to time, at the times specified therein (the "ADMINISTRATIVE AGENT
FEES").
SECTION 2.11 INTEREST. (a) The Term Loans C comprising each ABR
Borrowing shall bear interest at the Alternate Base Rate plus the Applicable
Margin.
(b) The Term Loans C comprising each Eurocurrency Borrowing shall
bear interest at the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Margin.
(c) Notwithstanding the foregoing, if any principal of or interest
on any Term Loan C or other amount payable by the applicable Borrower hereunder
is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue principal amount shall bear interest, and each such
other overdue amount shall, to the extent permitted by law, bear interest, in
each case after as well as before judgment, at a rate per annum equal to (i) in
the case of overdue principal of any Term Loan C, 2% plus the rate otherwise
applicable to such Term Loan C as provided in the preceding paragraphs of this
Section or (ii) in the case of any other amount (x) 2% plus the rate applicable
to Term Loans C that are ABR Loans as provided in paragraph (a) of this Section;
PROVIDED that this paragraph (c) shall not apply to any payment default that has
been waived by the Lenders pursuant to Section 9.08.
(d) Accrued interest on each Term Loan C shall be payable in
arrears (i) on each Interest Payment Date for such Term Loan C and (ii) on the
Maturity Date; PROVIDED that (x) interest accrued pursuant to paragraph (c) of
this Section shall be payable on demand, (y) in the event of any repayment or
prepayment of any Term Loan C, accrued interest on the principal amount repaid
or prepaid shall be payable on the date of such repayment or prepayment and (z)
in the event of any conversion of any Eurocurrency Term Loan C prior to the end
of the current Interest Period therefor, accrued interest on such Term Loan C
shall be payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be prima facie evidence thereof.
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SECTION 2.12 ALTERNATE RATE OF INTEREST. If prior to the commencement
of any Interest Period for a Eurocurrency Borrowing denominated in any currency:
(a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders
that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such
Interest Period will not adequately and fairly reflect the cost to such
Lenders of making or maintaining their Term Loans C included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrowers and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrowers and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurocurrency Borrowing shall be ineffective
and such Borrowing shall not be converted to or continued as a Eurocurrency
Borrowing on the last day of the Interest Period applicable thereto and (ii) if
any Borrowing Request requests a Eurocurrency Borrowing, such Borrowing shall be
made as an ABR Borrowing.
SECTION 2.13 INCREASED COSTS. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate or those for which payment has been
requested pursuant to Section 2.18); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurocurrency Term Loans C made by
such Lender (except those for which payment has been requested pursuant to
Section 2.18);
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan (or of maintaining its
obligation to make any such Eurocurrency Loan) or to reduce the amount of any
sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise), in each case determined to be material by such Lender,
then the Borrower will pay to such Lender such additional amount or amounts as
will compensate such Lender for such additional costs incurred or reduction
suffered.
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement or the Term Loans C made by such Lender
to a level below that which such Lender or such Lender's holding company could
have achieved but for such Change in Law (taking into consideration such
Lender's policies and the policies of such Lender's holding company with respect
to capital adequacy) and determined to be material by such Lender, then from
time to time the Borrower shall pay to such Lender, such additional amount or
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amounts as will compensate such Lender or such Lender's holding company for any
such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as applicable, as
specified in paragraph (a) or (b) of this Section (as well as reasonably
detailed calculations thereof) shall be delivered to the Borrower and shall be
prima facie evidence of the amounts thereof. The Borrower shall pay such Lender
the amount shown as due on any such certificate within 10 days after receipt
thereof.
(d) Promptly after any Lender has determined that it will make a
request for increased compensation pursuant to this Section 2.13, such Lender
shall notify the Borrower thereof. Failure or delay on the part of any Lender to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's right to demand such compensation; PROVIDED that the Borrower
shall not be required to compensate a Lender pursuant to this Section for any
increased costs or reductions incurred more than 180 days prior to the date that
such Lender, notifies such Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's intention to claim
compensation therefor; PROVIDED, FURTHER, that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the 180-day period
referred to above shall be extended to include the period of retroactive effect
thereof.
SECTION 2.14 BREAK FUNDING PAYMENTS. In the event of (a) the payment
of any principal of any Eurocurrency Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurocurrency Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Eurocurrency Loan on the date specified in any notice
delivered pursuant hereto or (d) the assignment of any Eurocurrency Loan other
than on the last day of the Interest Period applicable thereto as a result of a
request by the Borrower pursuant to Section 2.17, then, in any such event, the
Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurocurrency Loan, such loss, cost
or expense to any Lender shall be deemed to be the amount reasonably determined
by such Lender to be the excess, if any, of (i) the amount of interest which
would have accrued on the principal amount of such Eurocurrency Loan had such
event not occurred, at the Adjusted LIBO Rate that would have been applicable to
such Eurocurrency Loan, for the period from the date of such event to the last
day of the then current Interest Period therefor (or, in the case of a failure
to borrow, convert or continue a Eurocurrency Loan, for the period that would
have been the Interest Period for such Eurocurrency Loan), over (ii) the amount
of interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
such period, for deposits in Eurodollars of a comparable amount and period from
other banks in the Eurodollar market. A certificate of any Lender setting forth
any amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be prima facie evidence of
the amounts thereof. The Borrower shall pay such Lender the amount shown as due
on any such certificate within 10 days after receipt thereof.
SECTION 2.15 TAXES. (a) Any and all payments by or on account of any
obligation of any Loan Party hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; PROVIDED that if a
Loan Party shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable
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shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
any Agent or Lender, as applicable, receives an amount equal to the sum it would
have received had no such deductions been made, (ii) such Loan Party shall make
such deductions and (iii) such Loan Party shall timely pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.
(b) In addition, the Loan Parties shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Each Loan Party shall indemnify the Agents and each Lender,
within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by such Agent or Lender, as applicable, on
or with respect to any payment by or on account of any obligation of such Loan
Party hereunder (including Indemnified Taxes or Other Taxes imposed or asserted
on or attributable to amounts payable under this Section) and any reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to such Loan Party by a Lender, or by the
Administrative Agent on its own behalf, on behalf of another Agent or on behalf
of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes
or Other Taxes by a Loan Party to a Governmental Authority, such Loan Party
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Lender that is entitled to an exemption from or reduction
of 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), to the extent such Lender is legally entitled to do so,
at the time or times prescribed by applicable law, such properly completed and
executed documentation prescribed by applicable law as may reasonably be
requested by the Borrower to permit such payments to be made without such
withholding tax or at a reduced rate; PROVIDED that no Lender shall have any
obligation under this paragraph (e) with respect to any withholding Tax imposed
by any jurisdiction other than the United States if in the reasonable judgment
of such Lender such compliance would subject such Lender to any material
unreimbursed cost or expense or would otherwise be disadvantageous to such
Lender in any material respect.
(f) If an Agent or a Lender determines, in good faith and in its
sole discretion, that it has received a refund of any Indemnified Taxes or Other
Taxes as to which it has been indemnified by a Loan Party or with respect to
which such Loan Party has paid additional amounts pursuant to this Section 2.15,
it shall pay over such refund to such Loan Party (but only to the extent of
indemnity payments made, or additional amounts paid, by such Loan Party under
this Section 2.15 with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of such Agent or such Lender
(including any Taxes imposed with respect to such refund) as is determined by
the Agent or Lender in good faith and in its sole discretion and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); PROVIDED that such Loan Party,
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upon the request of such Agent or such Lender, agrees to repay as soon as
reasonably practicable the amount paid over to such Loan Party (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to such Agent or such Lender in the event such Agent or such Lender
is required to repay such refund to such Governmental Authority. This Section
shall not be construed to require any Agent or any Lender to make available its
Tax returns (or any other information relating to its Taxes which it deems
confidential) to the Loan Parties or any other Person.
SECTION 2.16 PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS. (a) Unless otherwise specified, the Borrower shall make each payment
required to be made by it hereunder (whether of principal, interest or fees or
of amounts payable under Section 2.13, 2.14, 2.15 or 2.18, or otherwise) prior
to 2:00 p.m., Local Time, on the date when due, in immediately available funds,
without condition or deduction for any defense, recoupment, set-off or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent to the applicable
account designated to the Borrower by the Administrative Agent, except that
payments pursuant to Sections 2.13, 2.14, 2.15, 2.18 and 9.05 shall be made
directly to the persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. All payments hereunder shall be made in Dollars. Any payment
required to be made by the Administrative Agent hereunder shall be deemed to
have been made by the time required if the Administrative Agent shall, at or
before such time, have taken the necessary steps to make such payment in
accordance with the regulations or operating procedures of the clearing or
settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent from the Borrower to pay fully all amounts
of principal, interest and fees then due from the Borrower hereunder, such funds
shall be applied (i) FIRST, towards payment of interest and fees then due from
the Borrower hereunder, ratably among the parties entitled thereto in accordance
with the amounts of interest and fees then due to such parties, and (ii) SECOND,
towards payment of principal then due from the Borrower hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal then
due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Term Loans C resulting in such Lender receiving payment
of a greater proportion of the aggregate amount of its Term Loans C and accrued
interest thereon than the proportion received by any other Lender, then the
Lender receiving such greater proportion shall purchase (for cash at face value)
participations in the Term Loans C of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Term Loans C; PROVIDED that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions
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of this paragraph (c) shall not be construed to apply to any payment made by the
Borrower pursuant to and in accordance with the express terms of this Agreement
or any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Term Loans C to any assignee or
participant, other than to such Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph (c) shall apply).
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders that the Borrower will not
make such payment, the Administrative Agent may assume that the Borrower has
made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders, severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.04(b) or 2.16(d), then the Administrative Agent
may, in its discretion (notwithstanding any contrary provision hereof), apply
any amounts thereafter received by the Administrative Agent for the account of
such Lender to satisfy such Lender's obligations under such Sections until all
such unsatisfied obligations are fully paid.
SECTION 2.17 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS. (a) If
any Lender requests compensation under Section 2.13 or 2.18, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.15, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Term Loans C hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or Affiliates, if, in
the reasonable judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.13, 2.15 or 2.18, as
applicable, in the future and (ii) would not subject such Lender to any material
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender in any material respect. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If any Lender requests compensation under Section 2.13 or
2.18, or if the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section
2.15, then the Borrower may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained
in Section 9.04), all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); PROVIDED that (i) such Lender
shall have received payment of an amount equal to the outstanding principal of
its Term Loans C, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all
other amounts) and (ii) in the case of any such assignment resulting from a
claim for compensation under Section 2.13 or 2.18 or payments required to
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be made pursuant to Section 2.15, such assignment will result in a reduction in
such compensation or payments.
(c) If any Lender (such Lender, a "NON-CONSENTING LENDER") has
failed to consent to a proposed amendment, waiver, discharge or termination
which pursuant to the terms of Section 9.08 requires the consent of all of the
Lenders affected and with respect to which the Required Lenders shall have
granted their consent, then provided no Event of Default then exists, the
Borrower shall have the right (unless such Non-Consenting Lender grants such
consent) to replace such Non-Consenting Lender by requiring such Non-Consenting
Lender to assign its Term Loan C to one or more assignees reasonably acceptable
to the Administrative Agent, PROVIDED that: (a) all Obligations of Borrowers
owing to such Non- Consenting Lender being replaced shall be paid in full to
such Non-Consenting Lender concurrently with such assignment, and (b) the
replacement Lender shall purchase the foregoing by paying to such Non-Consenting
Lender a price equal to the principal amount thereof plus accrued and unpaid
interest thereon. In connection with any such assignment the Borrower,
Administrative Agent, such Non-Consenting Lender and the replacement Lender
shall otherwise comply with Section 9.04.
SECTION 2.18 ADDITIONAL RESERVE COSTS. (a) For so long as any Lender
is required to make special deposits with the Bank of England and/or the
Financial Services Authority (or, in either case any other authority which
replaced all or any of its functions) and/or the European Central Bank or comply
with reserve assets, liquidity, cash margin or other requirements of the Bank of
England and/or the Financial Services Authority (or, in either case any other
authority which replaced all or any of its functions) and/or the European
Central Bank, to maintain reserve asset ratios or to pay fees, in each case in
respect of such Lender's Eurocurrency Loans, such Lender shall be entitled to
require the Borrower to pay, contemporaneously with each payment of interest on
each of such Term Loans C, additional interest on such Term Loans C at a
percentage rate per annum equal to the Mandatory Costs Rate calculated in
accordance with the formulae and in the manner set forth in EXHIBIT F hereto.
(b) Any additional interest owed pursuant to paragraph (a) above
shall be determined by the applicable Lender, which determination shall be prima
facie evidence of the amount thereof, and notified to the Borrower (with a copy
to the Administrative Agent) at least 10 days before each date on which interest
is payable for the applicable Term Loan C, and such additional interest so
notified to the Borrower by such Lender shall be payable to the Administrative
Agent for the account of such Lender on each date on which interest is payable
for such Term Loan C.
SECTION 2.19 ILLEGALITY. If any Lender reasonably determines that any
change in law has made it unlawful, or that any Governmental Authority has
asserted after the Closing Date that it is unlawful, for any Lender or its
applicable lending office to make or maintain any Eurocurrency Loans, then, on
notice thereof by such Lender to the Borrower through the Administrative Agent,
any obligations of such Lender to make or continue Eurocurrency Loans or to
convert ABR Borrowings to Eurocurrency Borrowings shall be suspended until such
Lender notifies the Administrative Agent and the Borrower that the circumstances
giving rise to such determination no longer exist. Upon receipt of such notice,
the Borrower shall upon demand from such Lender (with a copy to the
Administrative Agent), convert all Eurocurrency Borrowings of such Lender to ABR
Borrowings, either on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such Eurocurrency Borrowings to such
day, or immediately, if such Lender may not lawfully
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continue to maintain such Eurocurrency Loans. Upon any such prepayment or
conversion, the Borrower shall also pay accrued interest on the amount so
prepaid or converted.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of Holdings and the Borrower represents and warrants to each of
the Lenders that:
SECTION 3.01 ORGANIZATION; POWERS. Except as set forth on SCHEDULE
3.01, each of Holdings, the Borrower and each of the Material Subsidiaries (a)
is a partnership, limited liability company, exempted company or corporation
duly organized, validly existing and in good standing (or, if applicable in a
foreign jurisdiction, enjoys the equivalent status under the laws of any
jurisdiction of organization outside the United States) under the laws of the
jurisdiction of its organization, (b) has all requisite power and authority to
own its property and assets and to carry on its business as now conducted, (c)
is qualified to do business in each jurisdiction where such qualification is
required, except where the failure so to qualify could not reasonably be
expected to have a Material Adverse Effect, and (d) has the power and authority
to execute, deliver and perform its obligations under each of the Financing
Documents and each other agreement or instrument contemplated thereby to which
it is or will be a party and, in the case of each Borrower, to borrow and
otherwise obtain credit hereunder.
SECTION 3.02 AUTHORIZATION. The execution, delivery and performance by
Holdings, the Borrower, and each of their Subsidiaries of each of the Financing
Documents to which it is or to be a party, and the borrowings hereunder (a) have
been duly authorized by all corporate, stockholder, shareholder, limited
liability company or partnership action required to be obtained by Holdings, the
Borrower and such Subsidiaries and (b) will not (i) violate (A) any provision of
law, statute, rule or regulation, or of the certificate or articles of
incorporation or other constitutive documents or by-laws of Holdings, the
Borrower or any such Subsidiary, (B) any applicable order of any court or any
rule, regulation or order of any Governmental Authority or (C) any provision of
any indenture, certificate of designation for preferred stock, agreement or
other instrument to which Holdings, the Borrower or any such Subsidiary is a
party or by which any of them or any of their property is or may be bound, (ii)
be in conflict with, result in a breach of or constitute (alone or with notice
or lapse of time or both) a default under, give rise to a right of or result in
any cancellation or acceleration of any right or obligation (including any
payment) or to a loss of a material benefit under any such indenture,
certificate of designation for preferred stock, agreement or other instrument,
where any such conflict, violation, breach or default referred to in clause (i)
or (ii) of this Section 3.02, could reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect, or (iii) result in the creation
or imposition of any Lien upon or with respect to any material property or
assets now owned or hereafter acquired by Holdings, the Borrower or any such
Subsidiary, other than the Liens created by the Loan Documents.
SECTION 3.03 ENFORCEABILITY. This Agreement has been duly executed and
delivered by Holdings and the Borrower and constitutes, and each other Loan
Document when executed and delivered by each Loan Party that is party thereto
will constitute, a legal, valid and binding obligation of such Loan Party
enforceable against each such Loan Party in accordance with its terms, subject
to (i) the effects of bankruptcy, insolvency, moratorium, reorganization,
fraudulent conveyance or other similar laws affecting creditors' rights
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generally, (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and (iii)
implied covenants of good faith and fair dealing.
SECTION 3.04 GOVERNMENTAL APPROVALS. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transaction or the
entering into of the Loan Documents and the initial borrowing thereunder except
for (a) the filing of Uniform Commercial Code financing statements, (b) filings
with the United States Patent and Trademark Office and the United States
Copyright Office and comparable offices in foreign jurisdictions and equivalent
filings in foreign jurisdictions, (c) recordation of the Mortgages, (d) such as
have been made or obtained and are in full force and effect, (e) such actions,
consents and approvals the failure to be obtained or made which could not
reasonably be expected to have a Material Adverse Effect and (f) filings or
other actions listed on SCHEDULE 3.04.
SECTION 3.05 FINANCIAL STATEMENTS. (a) Holdings has heretofore
furnished to the Lenders the audited consolidated balance sheet as of December
31, 2002 and the related audited consolidated statements of income and cash
flows of the Company and its subsidiaries for the year ended December 31, 2002
and the unaudited interim consolidated balance sheet as of September 30, 2003
and the related unaudited interim consolidated statements of income and cash
flows of the Company and its subsidiaries for the nine months ended September
30, 2003, which were prepared in accordance with US GAAP consistently applied
(except as may be indicated in the notes thereto), fairly present in all
material respects the consolidated financial position of the Company and its
subsidiaries as of the dates thereof and their consolidated results of
operations and cash flows for the period then ended (in the case of the
unaudited interim statements, subject to normal year-end adjustments and the
absence of notes).
(b) Holdings has heretofore furnished to the Lenders its PRO FORMA
consolidated balance sheet as of December 31, 2003 prepared giving effect to the
Transaction as if the Transaction had occurred on such date. Such PRO FORMA
consolidated balance sheet (i) has been prepared in good faith based on the
assumptions believed by Holdings and the Borrower to have been reasonable at the
time made and to be reasonable as of the CA Closing Date (it being understood
that such assumptions are based on good faith estimates with respect to certain
items and that the actual amounts of such items on the CA Closing Date is
subject to variation and that purchase accounting will not have been applied),
(ii) subject to the assumptions and qualifications described therein, accurately
reflects all adjustments necessary to give effect to the Transaction and (iii)
subject to the assumptions and qualifications described therein, presents
fairly, in all material respects, the PRO FORMA consolidated financial position
of Holdings and its consolidated Subsidiaries as of December 31, 2003, as if the
Transaction had occurred on such date.
SECTION 3.06 NO MATERIAL ADVERSE EFFECT. Since December 31, 2002 (but
after giving effect to the Transaction) no Material Adverse Effect has occurred.
SECTION 3.07 TITLE TO PROPERTIES; POSSESSION UNDER LEASES. (a) Each of
Holdings, the Borrower and the Material Subsidiaries has good and valid record
fee simple title (insurable at ordinary rates) to, or valid leasehold interests
in, or easements or other limited property interests in, all its properties and
assets (including all Mortgaged Properties), except where the failure to have
such title could not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect. All such properties and assets are
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free and clear of Liens, other than Liens expressly permitted by Section 6.08 or
arising by operation of law.
(b) Each of Holdings, the Borrower and the Material Subsidiaries
has complied with all obligations under all leases to which it is a party,
except where the failure to comply would not have a Material Adverse Effect, and
all such leases are in full force and effect, except leases in respect of which
the failure to be in full force and effect could not reasonably be expected to
have a Material Adverse Effect. Each of Holdings, the Borrower and each of the
Material Subsidiaries enjoys peaceful and undisturbed possession under all such
leases, other than leases in respect of which the failure to enjoy peaceful and
undisturbed possession could not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect.
(c) Each of Holdings, the Borrower and the Material Subsidiaries
owns or possesses, or could obtain ownership or possession of, on terms not
materially adverse to it, all patents, trademarks, service marks, trade names,
copyrights, licenses and rights with respect thereto necessary for the present
conduct of its business, without any known conflict with the rights of others,
and free from any burdensome restrictions, except where such conflicts and
restrictions could not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
(d) As of the Closing Date, none of Holdings, the Borrower and the
Material Subsidiaries has received any notice of any pending or contemplated
condemnation proceeding affecting any of the Mortgaged Properties or any sale or
disposition thereof in lieu of condemnation that remains unresolved as of the
Closing Date.
(e) None of Holdings, the Borrower and the Material Subsidiaries
is obligated on the Closing Date under any right of first refusal, option or
other contractual right to sell, assign or otherwise dispose of any Mortgaged
Property or any interest therein, except as permitted under Section 6.08 hereof
or Section 6.05 of the Credit Agreement.
SECTION 3.08 SUBSIDIARIES. (a) On the CA Closing Date, after giving
effect to the Transaction, the corporate structure of Holdings and its
Subsidiaries was in all material respects as set forth on SCHEDULE 3.08(a) and
on the Restructuring Date, after giving effect to the Restructuring, the
corporate structure of Holdings and its Subsidiaries shall be in all material
respects as set forth on a Schedule delivered to the Lenders prior to the
Restructuring Date, such Schedule, to the extent it contains changes to the
structure set forth on SCHEDULE 3.08(a) not provided for in the definition of
"Restructuring" or expressly permitted by Section 6.08(b) of the Credit
Agreement, to be reasonably satisfactory to the Administrative Agent.
(b) SCHEDULE 3.08(b) sets forth as of the CA Closing Date the name
and jurisdiction of incorporation, formation or organization of each Material
Subsidiary and, as to each such Material Subsidiary, the percentage of each
class of Equity Interests owned by Holdings or by any such Material Subsidiary,
subject to such changes as are reasonably satisfactory to the Administrative
Agent.
(c) As of the CA Closing Date, there were no outstanding
subscriptions, options, warrants, calls, rights or other similar agreements or
commitments (other than stock options granted to employees or directors and
directors' qualifying shares) of any nature relating to any Equity Interests of
Holdings, the Borrower, the Company or any of the Material Subsidiaries, except
as set forth on SCHEDULE 3.08(c).
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(d) Except to the extent, if any, specified for a subsidiary in
SCHEDULE 1.01(h), each subsidiary listed on SCHEDULE 1.01(h) owns no property
other than any DE MINIMUS assets and conducts no business other than DE MINIMUS
business.
SECTION 3.09 LITIGATION; COMPLIANCE WITH LAWS. (a) Except as set forth
on SCHEDULE 3.09, there are no actions, suits, investigations or proceedings at
law or in equity or by or on behalf of any Governmental Authority or in
arbitration now pending, or, to the knowledge of Holdings or the Borrower,
threatened in writing against or affecting Holdings or the Borrower or any of
their Subsidiaries or any business, property or rights of any such person which
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect or materially adversely affect the Transaction.
(b) None of Holdings, the Borrower, the Material Subsidiaries and
their respective properties or assets is in violation of (nor will the continued
operation of their material properties and assets as currently conducted
violate) any law, rule or regulation (including any zoning, building,
Environmental Law, ordinance, code or approval or any building permit) or any
restriction of record or agreement affecting any Mortgaged Property, or is in
default with respect to any judgment, writ, injunction or decree of any
Governmental Authority, where such violation or default could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 3.10 FEDERAL RESERVE REGULATIONS. (a) None of Holdings, the
Borrower and their Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
(b) No part of the proceeds of any Term Loan C will be used,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or that is inconsistent
with, the provisions of the Regulations of the Board, including Regulation U or
Regulation X.
SECTION 3.11 INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY
ACT. None of Holdings, the Borrower and their Subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940, as amended, or (b) a "holding company" as defined in, or subject to
regulation under, the Public Utility Holding Company Act of 1935, as amended.
SECTION 3.12 USE OF PROCEEDS. Parent will use the proceeds of Term
Loans C on the date incurred (or the next Business Day) to repay principal of
the Senior Subordinated Bridge B Loans.
SECTION 3.13 TAX RETURNS. Except as set forth on SCHEDULE 3.13:
(a) each of Holdings, the Borrower and the Material Subsidiaries
(i) has timely filed or caused to be timely filed all federal, state, local
and non-U.S. Tax returns required to have been filed by it that are
material to such companies taken as a whole and each such Tax return is
true and correct in all material respects and (ii) has timely paid or
caused to be timely paid all material Taxes shown thereon to be due and
payable by it and all other material Taxes or assessments, except Taxes or
assessments that are being contested in good faith by appropriate
proceedings in accordance with Section 5.03 and for which Holdings, the
Borrower or any of the Material Subsidiaries (as the case may be) has set
aside on its books adequate reserves;
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(b) each of Holdings, the Borrower and the Material Subsidiaries
has paid in full or made adequate provision (in accordance with US GAAP)
for the payment of all Taxes due with respect to all periods or portions
thereof ending on or before the Closing Date, which Taxes, if not paid or
adequately provided for, could reasonably be expected to have a Material
Adverse Effect; and
(c) as of the Closing Date, with respect to each of Holdings, the
Borrower and their Material Subsidiaries, (i) there are no material audits,
investigations or claims being asserted in writing with respect to any
Taxes, (ii) no presently effective waivers or extensions of statutes of
limitation with respect to Taxes have been given or requested and (iii) no
material Tax returns are being examined by, and no written notification of
intention to examine has been received from, the Internal Revenue Service
or, with respect to any material potential Tax liability, any other Taxing
authority.
SECTION 3.14 NO MATERIAL MISSTATEMENTS. (a) All written information
(other than the Projections, estimates and information of a general economic
nature) (the "INFORMATION") concerning Holdings, the Borrower, their
Subsidiaries, the Transaction and any other transactions contemplated hereby
included in the Offer Document and/or (after the preparation and delivery
thereof) the [Information Memorandum] or otherwise prepared by or on behalf of
the foregoing or their representatives and made available to any Lenders or the
Administrative Agent in connection with the Transaction (as such information may
have been supplemented in writing prior to the Closing Date) or the other
transactions contemplated hereby, when taken as a whole, were true and correct
in all material respects, as of the date such Information was furnished to the
Lenders and (in the case of such Information delivered prior to the Closing
Date) as of the Closing Date and did not contain any untrue statement of a
material fact as of any such date or omit to state a material fact necessary in
order to make the statements contained therein not materially misleading in
light of the circumstances under which such statements were made.
(b) The Projections and estimates and information of a general
economic nature prepared by or on behalf of the Borrower or any of its
representatives and that have been made available to any Lenders or the
Administrative Agent in connection with the Transaction or the other
transactions contemplated hereby (i) have been prepared in good faith based upon
assumptions believed by the Borrower to be reasonable as of the date thereof and
as of the Closing Date, and (ii) as of the Closing Date, have not been modified
in any material respect by the Borrower.
SECTION 3.15 EMPLOYEE BENEFIT PLANS. (a) Each of the Borrower,
Holdings, the Material Subsidiaries and the ERISA Affiliates is in compliance
with the applicable provisions of ERISA and the provisions of the Code relating
to Plans and the regulations and published interpretations thereunder and any
similar applicable non-U.S. law, except for such noncompliance that could not
reasonably be expected to have a Material Adverse Effect. No Reportable Event
has occurred during the past five years as to which the Borrower, Holdings, any
of the Material Subsidiaries or any ERISA Affiliate was required to file a
report with the PBGC, other than reports that have been filed and reports the
failure of which to file could not reasonably be expected to have a Material
Adverse Effect. As of the Closing Date, the excess of the present value of all
benefit liabilities under each Plan of the Borrower, Holdings, the Material
Subsidiaries and the ERISA Affiliates (based on those assumptions used to fund
such Plan), as of the last annual valuation date applicable thereto for which a
valuation is available, over the value of the assets of such Plan could not
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reasonably be expected to have a Material Adverse Effect, and the excess of the
present value of all benefit liabilities of all underfunded Plans (based on
those assumptions used to fund each such Plan) as of the last annual valuation
dates applicable thereto for which valuations are available, over the value of
the assets of all such under funded Plans could not reasonably be expected to
have a Material Adverse Effect. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events
which have occurred or for which liability is reasonably expected to occur,
could reasonably be expected to result in a Material Adverse Effect. None of the
Borrower, Holdings, the Material Subsidiaries and the ERISA Affiliates has
received any written notification that any Multiemployer Plan is in
reorganization or has been terminated within the meaning of Title IV of ERISA,
or has knowledge that any Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, where such reorganization or termination has
had or could reasonably be expected to have, through increases in the
contributions required to be made to such Plan or otherwise, a Material Adverse
Effect.
(b) Each of Holdings, the Borrower and the Material Subsidiaries
is in compliance (i) with all applicable provisions of law and all applicable
regulations and published interpretations thereunder with respect to any
employee pension benefit plan or other employee benefit plan governed by the
laws of a jurisdiction other than the United States and (ii) with the terms of
any such plan, except, in each case, for such noncompliance that could not
reasonably be expected to have a Material Adverse Effect.
SECTION 3.16 ENVIRONMENTAL MATTERS. Except as disclosed in SCHEDULE
3.16 and except as to matters that could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect (i) no written
notice, request for information, order, complaint or penalty has been received
by the Borrower or any of the Material Subsidiaries relating to the Borrower or
any of the Material Subsidiaries, and there are no judicial, administrative or
other actions, suits or proceedings relating to the Borrower or any of the
Material Subsidiaries pending or, to the knowledge of Borrower, threatened which
allege a violation of or liability under any Environmental Laws, (ii) each of
the Borrower and the Material Subsidiaries has all environmental permits
necessary for its current operations to comply with all applicable Environmental
Laws and is, and since January 1, 2001 has been, in compliance with the terms of
such permits and with all other applicable Environmental Laws, (iii) there has
been no written environmental audit conducted since January 1, 2000 by the
Borrower or any of the Material Subsidiaries of any property currently owned or
leased by the Borrower or any of the Material Subsidiaries which has not been
made available to the Administrative Agent prior to the date hereof, (iv) no
Hazardous Material is located at any property currently owned, operated or
leased by the Borrower or any of the Material Subsidiaries that would reasonably
be expected to give rise to any cost, liability or obligation of the Borrower or
any of the Material Subsidiaries under any Environmental Laws, and no Hazardous
Material has been generated, owned or controlled by the Borrower or any of the
Material Subsidiaries and transported to or released at any location in a manner
that would reasonably be expected to give rise to any cost, liability or
obligation of the Borrower or any of the Material Subsidiaries under any
Environmental Laws, and (v) there are no acquisition agreements entered into
after December 31, 2000 in which the Borrower or any of the Material
Subsidiaries has expressly assumed or undertaken responsibility for any
liability or obligation of any other Person arising under or relating to
Environmental Laws, which in any such case has not been made available to the
Administrative Agent prior to the date hereof.
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SECTION 3.17 SECURITY DOCUMENTS. (a) The Bidco Pledge will as of the
Closing Date be effective, and the Holdings Agreements and each of the Security
Documents described in Part II of SCHEDULE 1.01(a) will as of the Restructuring
Date be effective, to create in favor of the Collateral Agent (for the benefit
of the Lenders) a legal, valid and enforceable security interest in the
Collateral described therein (subject to any limitations specified therein). In
the case of the Pledged Collateral described in any of such Security Documents
the security interest in which is perfected by delivery thereof, when
certificates or promissory notes, as applicable, representing such Pledged
Collateral are delivered to the CA Collateral Agent (or the Collateral Agent, as
appropriate) and in the case of the other Collateral described in any such
Security Document (other than the Intellectual Property (as defined in the U.S.
Collateral Agreement)), when financing statements and other filings specified on
SCHEDULE 6 of the Perfection Certificate in appropriate form are filed in the
offices specified on SCHEDULE 7 of the Perfection Certificate, the Collateral
Agent (for the benefit of the Lenders) shall have a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in such
Collateral, as security for the Obligations secured thereby, in each case with
such priority as purported to be created under the respective Security Document.
(b) When the U.S. Collateral Agreement or a summary thereof is
properly filed in the United States Patent and Trademark Office and the United
States Copyright Office, and, with respect to Collateral in which a security
interest cannot be perfected by such filings, upon the proper filing of the
financing statements referred to in paragraph (a) above, the Collateral Agent
(for the benefit of the Lenders) shall have a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties
thereunder in the Intellectual Property, in each case with such priority as
purported to be created under the U.S. Collateral Agreement.
(c) The Mortgages set forth on SCHEDULE 5.12 executed and
delivered on the Restructuring Date pursuant to Section 5.12 and the Mortgages
executed and delivered pursuant to Section 5.10 shall be effective to create in
favor of the Collateral Agent (for the benefit of the Lenders) a legal, valid
and enforceable Lien on all of the Loan Parties' right, title and interest in
and to the Mortgaged Property thereunder and the proceeds thereof, and when such
Mortgages are filed or recorded in the proper real estate filing or recording
offices, the Collateral Agent (for the benefit of the Lenders) shall have a
fully perfected Lien on, and security interest in, all right, title and interest
of the Loan Parties in such Mortgaged Property and, to the extent applicable,
subject to Section 9-315 of the Uniform Commercial Code, the proceeds thereof,
in each case with such priority as purported to be created by the respective
Mortgage.
SECTION 3.18 LOCATION OF REAL PROPERTY AND LEASED PREMISES. (a)
Schedule 3.18 lists completely and correctly as of the CA Closing Date all
material real property owned by Holdings, the Borrower and the Domestic
Subsidiary Loan Parties and the addresses thereof. As of the CA Closing Date,
Holdings, the Borrower and the Domestic Subsidiaries own in fee all the real
property set forth as being owned by them on such Schedule.
(b) Schedule 3.18 lists completely and correctly as of the CA
Closing Date all material real property leased by Holdings, the Borrower and the
Domestic Subsidiary Loan Parties and the addresses thereof. As of the CA Closing
Date, Holdings, the Borrower and the Domestic Subsidiary Loan Parties have valid
leases in all the real property set forth as being leased by them on such
Schedule.
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SECTION 3.19 SOLVENCY. (A) (a) Both (x) immediately after giving
effect to the Closing Date and (y) on the Restructuring Date (i) the fair value
of the assets of Holdings and its Subsidiaries on a consolidated basis, at a
fair valuation, will exceed the debts and liabilities, direct, subordinated,
contingent or otherwise, of Holdings and its Subsidiaries on a consolidated
basis; (ii) the present fair saleable value of the property of Holdings and its
Subsidiaries on a consolidated basis will be greater than the amount that will
be required to pay the probable liability of Holdings and its Subsidiaries on a
consolidated basis on their debts and other liabilities, direct, subordinated,
contingent or otherwise, as such debts and other liabilities become absolute and
matured; (iii) Holdings and its Subsidiaries on a consolidated basis will be
able to pay their debts and liabilities, direct, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured; and (iv)
Holdings and its Subsidiaries on a consolidated basis will not have unreasonably
small capital with which to conduct the businesses in which they are engaged as
such businesses are now conducted and are proposed to be conducted following the
Closing Date and (B) after giving effect to the Closing Date and prior to the
Restructuring Date, Parent (x) has not ceased, and does not expect that it will
cease, making payments on its liabilities when due and (y) can, and expects that
it can, obtain credit in the ordinary course of business.
(b) Neither Holdings nor the Borrower intends to, and does not
believe that it or any of the Material Subsidiaries will, incur debts beyond its
ability to pay such debts as they mature, taking into account the timing and
amounts of cash to be received by it or any such subsidiary and the timing and
amounts of cash to be payable on or in respect of its Indebtedness or the
Indebtedness of any such subsidiary.
SECTION 3.20 LABOR MATTERS. There are no strikes pending or threatened
against Holdings, the Borrower or any of the Material Subsidiaries that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. The hours worked and payments made to employees of
Holdings, the Borrower and the Material Subsidiaries have not been in violation
in any material respect of the Fair Labor Standards Act or any other applicable
law dealing with such matters. All material payments due from Holdings, the
Borrower or any of the Material Subsidiaries or for which any claim may be made
against Holdings, the Borrower or any of the Material Subsidiaries, on account
of wages and employee health and welfare insurance and other benefits have been
paid or accrued as a liability on the books of Holdings, the Borrower or such
Material Subsidiary to the extent required by US GAAP. Except as set forth on
SCHEDULE 3.20, consummation of the Transaction will not give rise to a right of
termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which Holdings, the Borrower or any of the
Material Subsidiaries (or any predecessor) is a party or by which Holdings, the
Borrower or any of the Material Subsidiaries (or any predecessor) is bound,
other than collective bargaining agreements that, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
SECTION 3.21 INSURANCE. SCHEDULE 3.21 sets forth a true, complete and
correct description of all material insurance maintained by or on behalf of
Holdings, the Borrower or the Material Subsidiaries as of the CA Closing Date.
As of the CA Closing Date, such insurance was in full force and effect. The
Borrower believes that the insurance maintained by or on behalf of Holdings, the
Borrower and the Material Subsidiaries is adequate.
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ARTICLE IV
CONDITIONS OF LENDING
SECTION 4.01 CONDITIONS. The obligations of the Lenders to make Term
Loans C are subject to the satisfaction of the following conditions:
(a) The Administrative Agent shall have received a Borrowing
Request as required by Section 2.03.
(b) The representations and warranties set forth in Article III
hereof shall be true and correct in all material respects on and as of the
date of such Borrowing, with the same effect as though made on and as of
such date, except to the extent such representations and warranties
expressly relate to an earlier date (in which case such representations and
warranties shall be true and correct in all material respects as of such
earlier date).
(c) At the time of and immediately after such Borrowing, no Event
of Default or Default shall have occurred and be continuing.
(d) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
(e) The Administrative Agent shall have received, on behalf of
itself, the Collateral Agent and the Lenders on the Closing Date, a
favorable written opinion of (i) Simpson Thacher & Bartlett LLP, special
counsel for Holdings and the Borrower, in form and substance reasonably
satisfactory to the Administrative Agent and (ii) such local U.S. and/or
foreign counsel as reasonably requested by the Administrative Agent, in
each case (A) dated the Closing Date, (B) addressed to the Administrative
Agent, the Collateral Agent and the Lenders and (C) in form and substance
reasonably satisfactory to the Administrative Agent and covering such other
matters relating to the Loan Documents and the Transaction as the
Administrative Agent shall reasonably request, and each of Holdings and the
Borrower hereby instructs its counsel to deliver such opinions.
(f) All legal matters incident to this Agreement, the borrowings
and extensions of credit hereunder and the other Loan Documents shall be
reasonably satisfactory to the Administrative Agent.
(g) The Administrative Agent shall have received in the case of
each person that is a Loan Party on the Closing Date each of the items
referred to in clauses (i), (ii), (iii) and (iv) below:
(i) a copy of the certificate or articles of
incorporation, memorandum and articles of association, partnership
agreement or limited liability agreement, including all amendments
thereto, of each Loan Party, (A) in the case of a corporation,
certified as of a recent date by the Secretary of State (or other
similar official) of the jurisdiction of its organization, and a
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certificate as to the good standing under the jurisdiction of its
organization (to the extent such concept or a similar concept exists
under the laws of such jurisdiction) of each such Loan Party as of a
recent date from such Secretary of State (or other similar official),
(B) in the case of a partnership or limited liability company,
certified by the manager, Secretary or Assistant Secretary or other
appropriate officer of each such Loan Party or (C) in the case of a
Cayman Islands exempted company, a copy of the memorandum and articles
of association of such company stamped as registered and filed as of a
recent date by the Registrar of Companies in the Cayman Islands;
(ii) a certificate of the manager, director, Secretary or
Assistant Secretary or similar officer of each Loan Party dated the
Closing Date and certifying
(A) that attached thereto is a true and complete
copy of the by-laws (or partnership agreement, limited
liability company agreement or other equivalent governing
documents) of such Loan Party as in effect on the Closing Date
and at all times since a date prior to the date of the
resolutions described in clause (B) below,
(B) that attached thereto is a true and complete
copy of resolutions duly adopted by the Board of Directors (or
equivalent governing body) of such Loan Party (or its managing
general partner or managing member) authorizing the execution,
delivery and performance of the Loan Documents to which such
person is a party and, in the case of a Borrower, the
borrowings hereunder, and that such resolutions have not been
modified, rescinded or amended and are in full force and
effect on the Closing Date,
(C) that the certificate or articles of
incorporation, memorandum and articles of association,
partnership agreement or limited liability agreement of such
Loan Party have not been amended since the date of the last
amendment thereto disclosed pursuant to clause (i) above,
(D) as to the incumbency and specimen signature of
each officer executing any Loan Document or any other document
delivered in connection herewith on behalf of such Loan Party
and
(E) as to the absence of any pending proceeding for
the dissolution or liquidation of such Loan Party or, to the
knowledge of such person, threatening the existence of such
Loan Party;
(iii) a certificate of another officer, director or
attorney-in-fact as to the incumbency and specimen signature of the
Secretary or Assistant Secretary or similar officer executing the
certificate pursuant to clause (ii) above; and
(iv) such other documents as the Administrative Agent may
reasonably request (including, without limitation, tax identification
numbers and addresses).
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(h) The Collateral and Guarantee Requirements required to be
satisfied as of the Closing Date shall have been satisfied or waived.
(i) Senior Subordinated Notes shall have been issued concurrently
with the making of the C Term Loans hereunder with net proceeds to the
Borrower equal to at least (i) the sum of the aggregate principal amount of
the Senior Subordinated Bridge B Loans and Senior Subordinated Bridge C
Loans (plus any pay-in-kind interest thereon) less (ii) the aggregate
principal amount of Term Loans C incurred on the Closing Date.
(j) The Lenders shall have received the financial statements
referred to in Section 3.05(a).
(k) The Lenders shall have received the PRO FORMA consolidated
balance sheet referred to in Section 3.05(b).
(l) The Lenders shall have received a solvency certificate
substantially in the form of EXHIBIT G and signed by a director or a
Responsible Officer of Holdings confirming the solvency of Holdings and its
Subsidiaries on a consolidated basis after giving effect to the Closing
Date.
(m) The Administrative Agent shall have received all fees payable
to it, Morgan Stanley or any other Lender on or prior to the Closing Date
and, to the extent invoiced, all other amounts due and payable pursuant to
the Loan Documents on or prior to the Closing Date, including, to the
extent invoiced, reimbursement or payment of all reasonable out-of-pocket
expenses (including reasonable fees, charges and disbursements of White &
Case LLP and U.S. and foreign local counsel) required to be reimbursed or
paid by the Loan Parties hereunder or under any Loan Document.
ARTICLE V
AFFIRMATIVE COVENANTS
Each of Holdings and the Borrower covenants and agrees with each
Lender that so long as this Agreement shall remain in effect and until the
principal of and interest on each Term Loan C, all fees and all other expenses
or amounts payable under any Loan Document shall have been paid in full, unless
the Required Lenders shall otherwise consent in writing, each of Holdings and
the Borrower will, and (other than Sections 5.04 and 5.05) will cause each of
the Material Subsidiaries to:
SECTION 5.01 EXISTENCE; BUSINESSES AND PROPERTIES. (a) Do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise expressly permitted under
Section 6.06 or 6.07, and except for the liquidation or dissolution of
Subsidiaries if the assets of such Subsidiaries to the extent they exceed
estimated liabilities are acquired by the Borrower or a Wholly Owned Subsidiary
of the Borrower in such liquidation or dissolution; PROVIDED that Subsidiaries
that are Loan Parties may not be liquidated into Subsidiaries that are not Loan
Parties and Domestic Subsidiaries may not be liquidated into Foreign
Subsidiaries.
(b) Do or cause to be done all things necessary to (i) obtain,
preserve, renew, extend and keep in full force and effect the permits,
franchises, authorizations,
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patents, trademarks, service marks, trade names, copyrights, licenses and rights
with respect thereto necessary to the normal conduct of its business, (ii)
comply in all material respects with all material applicable laws, rules,
regulations (including any zoning, building, ordinance, code or approval or any
building permits or any restrictions of record or agreements affecting the
Mortgaged Properties) and material judgments, writs, injunctions, decrees and
orders of any Governmental Authority, whether now in effect or hereafter
enacted, and (iii) at all times maintain and preserve all property necessary to
the normal conduct of its business and keep such property in good repair,
working order and condition and from time to time make, or cause to be made, all
needful and proper repairs, renewals, additions, improvements and replacements
thereto necessary in order that the business carried on in connection therewith,
if any, may be properly conducted at all times (in each case except as expressly
permitted by this Agreement).
SECTION 5.02 INSURANCE. (a) Keep its insurable properties insured at
all times by financially sound and reputable insurers in such amounts as shall
be customary for similar businesses and maintain such other reasonable insurance
(including, to the extent consistent with past practices, self-insurance), of
such types, to such extent and against such risks, as is customary with
companies in the same or similar businesses and maintain such other insurance as
may be required by law or any Mortgage.
(b) After the CA Termination Date, cause all such property and
casualty insurance policies with respect to the Mortgaged Properties to be
endorsed or otherwise amended to include a "standard" or "New York" lender's
loss payable endorsement, in form and substance reasonably satisfactory to the
Administrative Agent and the Collateral Agent, which endorsement shall provide
that, from and after the Closing Date, if the insurance carrier shall have
received written notice from the Administrative Agent or the Collateral Agent of
the occurrence of an Event of Default, the insurance carrier shall pay all
proceeds otherwise payable to any Loan Party under such policies directly to the
Collateral Agent; cause all such policies to provide that neither the Borrower,
the Administrative Agent, the Collateral Agent nor any other party shall be a
coinsurer thereunder and to contain a "Replacement Cost Endorsement," without
any deduction for depreciation, and such other provisions as the Administrative
Agent or the Collateral Agent may reasonably (in light of a Default or a
material development in respect of the insured Mortgaged Property) require from
time to time to protect their interests; deliver original or certified copies of
all such policies or a certificate of an insurance broker to the Collateral
Agent.
(c) After the CA Termination Date, if at any time the area in
which the Premises (as defined in the Mortgages) are located is designated a
"flood hazard area" in any Flood Insurance Rate Map published by the Federal
Emergency Management Agency (or any successor agency), obtain flood insurance in
such reasonable total amount as the Administrative Agent or the Collateral Agent
may from time to time reasonably require, and otherwise comply with the National
Flood Insurance Program as set forth in the Flood Disaster Protection Act of
1973, as it may be amended from time to time.
(d) After the CA Termination Date and with respect to each
Mortgaged Property, carry and maintain comprehensive general liability insurance
including the "broad form CGL endorsement" and coverage on a "claims-made"
occurrence basis against claims made for personal injury (including bodily
injury, death and property damage) and umbrella liability insurance against any
and all claims, in each case in amounts and against such risks as are
customarily maintained by companies engaged in the same or similar industry
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ing in the same or similar locations naming the Collateral Agent as an
additional insured in respect of such Mortgaged Property, on forms reasonably
satisfactory to the Collateral Agent.
(e) Notify the Administrative Agent and the Collateral Agent
promptly whenever any separate insurance concurrent in form or contributing in
the event of loss with that required to be maintained under this Section 5.02 is
taken out by Holdings, the Borrower or any of the Subsidiaries; and promptly
deliver to the Administrative Agent and the Collateral Agent a duplicate
original copy of such policy or policies, or an insurance certificate with
respect thereto.
(f) In connection with the covenants set forth in this Section
5.02, it is understood and agreed that:
(i) none of the Agents, the Lenders and their respective agents or
employees shall be liable for any loss or damage insured by the insurance
policies required to be maintained under this Section 5.02 or Section 5.02
of the Credit Agreement, it being understood that (A) the Borrower and the
other Loan Parties shall look solely to their insurance companies or any
other parties other than the aforesaid parties for the recovery of such
loss or damage and (B) such insurance companies shall have no rights of
subrogation against the Agents, the Lenders or their agents or employees.
If, however, the insurance policies do not provide waiver of subrogation
rights against such parties, as required above, then each of Holdings, and
the Borrower hereby agree, to the extent permitted by law, to waive, and to
cause each of their Subsidiaries to waive, its right of recovery, if any,
against the Agents, the Lenders and their agents and employees; and
(ii) the designation of any form, type or amount of insurance
coverage by the Administrative Agent, the Collateral Agent under this
Section 5.02 or Section 5.02 of the Credit Agreement, shall in no event be
deemed a representation, warranty or advice by the Administrative Agent,
the Collateral Agent or the Lenders that such insurance is adequate for the
purposes of the business of Holdings, the Borrower and their Subsidiaries
or the protection of their properties.
SECTION 5.03 TAXES. Pay and discharge promptly when due all material
Taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits or in respect of its property, before the same shall
become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise that, if unpaid, might give rise to a Lien
upon such properties or any part thereof; PROVIDED, HOWEVER, that such payment
and discharge shall not be required with respect to any such Tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings, and Holdings, the Borrower
or the affected Subsidiary, as applicable, shall have set aside on its books
reserves in accordance with US GAAP with respect thereto.
SECTION 5.04 FINANCIAL STATEMENTS, REPORTS, ETC. Furnish to the
Administrative Agent (which will furnish such information to the Lenders):
(a) within 90 days after the end of each fiscal year, a
consolidated balance sheet and related consolidated statements of
operations, cash flows and owners' equity showing the financial position of
Holdings and the Subsidiaries as of the close of such fiscal year and the
consolidated results of their operations during such year,
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with all consolidated statements audited by independent public accountants
of recognized national standing reasonably acceptable to the Administrative
Agent and accompanied by an opinion of such accountants (which shall not be
qualified in any material respect) to the effect that such consolidated
financial statements fairly present, in all material respects, the
financial position and results of operations of Holdings and the
Subsidiaries on a consolidated basis in accordance with US GAAP (it being
understood that the delivery by Holdings of Annual Reports on Form 10-K of
Holdings and its consolidated Subsidiaries shall satisfy the requirements
of this Section 5.04(a) to the extent such Annual Reports include the
information specified herein);
(b) within 45 days (75 days in the case of the fiscal quarter
ending June 30, 2004) after the end of each of the first three fiscal
quarters of each fiscal year commencing with the fiscal quarter ending June
30, 2004, a consolidated balance sheet and related consolidated statements
of operations and cash flows showing the financial position of Holdings and
its Subsidiaries as of the close of such fiscal quarter and the
consolidated results of their operations during such fiscal quarter and the
then-elapsed portion of the fiscal year, all certified by a Financial
Officer of Holdings, on behalf of Holdings, as fairly presenting, in all
material respects, the financial position and results of operations of
Holdings and its Subsidiaries on a consolidated basis in accordance with US
GAAP (subject to normal year-end adjustments and the absence of footnotes)
(it being understood that the delivery by Holdings of Quarterly Reports on
Form 10-Q of Holdings and its consolidated Subsidiaries shall satisfy the
requirements of this Section 5.04(b) to the extent such Quarterly Reports
include the information specified herein);
(c) (x) concurrently with any delivery of financial statements
under (a) or (b) above, (A) a certificate of a Financial Officer of
Holdings (i) certifying that no Event of Default or Default has occurred
or, if such an Event of Default or Default has occurred, specifying the
nature and extent thereof and any corrective action taken or proposed to be
taken with respect thereto and (ii) commencing with the fiscal period
ending June 30, 2004, setting forth computations in reasonable detail
satisfactory to the Administrative Agent demonstrating compliance with the
covenants contained in Sections 6.10, 6.11 and 6.12 and (B) a reasonably
detailed break-out of operational performance by business units for the
year or quarter then ended and (y) concurrently with any delivery of
financial statements under (a) above, a certificate of the accounting firm
opining on or certifying such statements stating whether they obtained
knowledge during the course of their examination of such statements of any
Default or Event of Default (which certificate may be limited to accounting
matters and disclaims responsibility for legal interpretations);
(d) promptly after the same become publicly available, copies of
all periodic and other publicly available reports, proxy statements and, to
the extent requested by the Administrative Agent, other materials filed by
Holdings, the Borrower or any of the Subsidiaries with the SEC, or after an
initial public offering, distributed to its stockholders generally, as
applicable;
(e) if, as a result of any change in accounting principles and
policies from those as in effect on the Closing Date, the consolidated
financial statements of Holdings and the Subsidiaries delivered pursuant to
paragraphs (a) or (b) above will differ in any material respect from the
consolidated financial statements that would
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have been delivered pursuant to such clauses had no such change in
accounting principles and policies been made, then, together with the first
delivery of financial statements pursuant to paragraph (a) and (b) above
following such change, a schedule prepared by a Financial Officer on behalf
of Holdings reconciling such changes to what the financial statements would
have been without such changes;
(f) within 90 days after the beginning of each fiscal year, an
operating and capital expenditure budget, in form reasonably satisfactory
to the Administrative Agent prepared by Holdings for each of the four
fiscal quarters of such fiscal year prepared in reasonable detail, of
Holdings and the Subsidiaries, accompanied by the statement of a Financial
Officer of Holdings to the effect that, to the best of his knowledge, the
budget is a reasonable estimate for the period covered thereby;
(g) upon the reasonable request of the Administrative Agent (which
request shall not be made more than once in any 12-month period), deliver
updated Perfection Certificates (or, to the extent such request relates to
specified information contained in the Perfection Certificates, such
information) reflecting all changes since the date of the information most
recently received pursuant to this paragraph (g) or Section 5.10(e);
(h) promptly, a copy of all reports submitted to the Board of
Directors (or any committee thereof) of any of Holdings, the Borrower or
any Material Subsidiary in connection with any interim or special audit
that is material made by independent accountants of the books of Holdings,
the Borrower or any Subsidiary;
(i) promptly, from time to time, such other information regarding
the operations, business affairs and financial condition of Holdings, the
Borrower or any of the Subsidiaries, or compliance with the terms of any
Loan Document, as in each case the Administrative Agent may reasonably
request;
(j) promptly upon request by the Administrative Agent, copies of:
(i) each SCHEDULE B (Actuarial Information) to the annual report (Form 5500
Series) filed with the Internal Revenue Service with respect to a Plan;
(ii) the most recent actuarial valuation report for any Plan; (iii) all
notices received from a Multiemployer Plan sponsor or any governmental
agency concerning an ERISA Event; and (iv) such other documents or
governmental reports or filings relating to any Plan or Multiemployer Plan
as the Administrative Agent shall reasonably request; and
(k) promptly and in any event within 15 days after the Closing
Date, an unaudited consolidated balance sheet and related unaudited
consolidated statements of operations and cash flow showing the financial
position of the Company and its subsidiaries as of the close of the period
commencing January 1, 2004 and ending on either the Closing Date or March
31, 2004 (at the election of the Company) and the consolidated results of
their operations during such period certified by a Responsible Officer of,
and acting on behalf of, Holdings or the Company as fairly presenting, in
all material respects, the financial position and results of operations of
the Company and its subsidiaries on a consolidated basis (subject to normal
year end adjustments and the absence of footnotes).
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SECTION 5.05 LITIGATION AND OTHER NOTICES. Furnish to the
Administrative Agent written notice of the following promptly after any
Responsible Officer of Holdings or the Borrower obtains actual knowledge
thereof:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) proposed to be taken with
respect thereto;
(b) the filing or commencement of, or any written threat or notice
of intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any Governmental
Authority or in arbitration, against Holdings, the Borrower or any of the
Subsidiaries as to which an adverse determination is reasonably probable
and which, if adversely determined, could reasonably be expected to have a
Material Adverse Effect;
(c) any other development specific to Holdings, the Borrower or
any of the Subsidiaries that is not a matter of general public knowledge
and that has had, or could reasonably be expected to have, a Material
Adverse Effect; and
(d) the occurrence of any ERISA Event, that together with all
other ERISA Events that have occurred, could reasonably be expected to have
a Material Adverse Effect.
SECTION 5.06 COMPLIANCE WITH LAWS. Comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect;
PROVIDED that this Section 5.06 shall not apply to Environmental Laws, which are
the subject of Section 5.09, or to laws related to Taxes, which are the subject
of Section 5.03.
SECTION 5.07 MAINTAINING RECORDS; ACCESS TO PROPERTIES AND
INSPECTIONS. Maintain all financial records in accordance with US GAAP and
permit any persons designated by the Agents or, upon the occurrence and during
the continuance of an Event of Default, any Lender to visit and inspect the
financial records and the properties of Holdings, the Borrower or any of the
Subsidiaries at reasonable times, upon reasonable prior notice to Holdings or
the Borrower, and as often as reasonably requested and to make extracts from and
copies of such financial records, and permit any persons designated by the
Agents or, upon the occurrence and during the continuance of an Event of
Default, any Lender upon reasonable prior notice to Holdings or the Borrower to
discuss the affairs, finances and condition of Holdings, the Borrower or any of
the Subsidiaries with the officers thereof and (subject to a senior officer of
the respective company or a parent thereof being present) independent
accountants therefor (subject to reasonable requirements of confidentiality,
including requirements imposed by law or by contract).
SECTION 5.08 USE OF PROCEEDS. Use the proceeds of Term Loans C only in
compliance with the representation contained in Section 3.12.
SECTION 5.09 COMPLIANCE WITH ENVIRONMENTAL LAWS. Comply, and make
reasonable efforts to cause all lessees and other persons occupying its
properties to comply, with all Environmental Laws applicable to its operations
and properties; and obtain and renew all material authorizations and permits
required pursuant to Environmental Law for its operations and properties, in
each case in accordance with Environmental Laws, except, in
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each case with respect to this Section 5.09, to the extent the failure to do so
could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
SECTION 5.10 FURTHER ASSURANCES; ADDITIONAL MORTGAGES. (a) Execute any
and all further documents, financing statements, agreements and instruments, and
take all such further actions (including the filing and recording of financing
statements, fixture filings, Mortgages and other documents and recordings of
Liens in stock registries), that may be required under any applicable law, or
that the Administrative Agent may reasonably request, to cause the Collateral
and Guarantee Requirement to be and remain satisfied, all at the expense of the
Loan Parties and provide to the Administrative Agent, from time to time upon
reasonable request, evidence reasonably satisfactory to the Administrative Agent
as to the perfection and priority of the Liens created or intended to be created
by the Security Documents.
(b) If (x) after the Closing Date and prior to the Restructuring
Date, (i) any Lien is first created on any asset in favor of the CA Collateral
Agent pursuant to Section 5.10(b) of the Credit Agreement, cause the form of the
U.S. Collateral Agent to be modified to include such asset as Collateral
thereunder (or cause such other agreement to be entered into on the
Restructuring Date to establish the Lien (on a silent second basis) in favor of
the Collateral Agent therein) and (ii) any CA Mortgage is executed in respect of
any real property pursuant to Section 5.10(c) of the Credit Agreement, cause
SCHEDULE 5.12 to be amended to add thereto the name of such real property so
that a Mortgage will be executed in respect thereof on the Restructuring Date as
contemplated by clause (h) of the definition of Collateral and Guarantee
Requirements; (y) on and after the Restructuring Date and prior to the CA
Termination Date (i) any Lien is first created on any assets in favor of the CA
Collateral Agent pursuant to Section 5.10(b) of the Credit Agreement cause such
asset to be subjected to a silent second Lien securing the Obligations and take,
or cause the respective Loan Party to take, such actions as shall be necessary
or reasonably requested by the Administrative Agent to grant and prefect such
Liens, including actions described in paragraph (a) of this Section 5.10, all at
the expense of the Loan Parties, subject to paragraph (d) below, and (ii) any CA
Mortgage is executed in respect of any real property pursuant to Section 5.10(c)
of the Credit Agreement, grant to the Collateral Agent security interests and
mortgages in such real property (to the extent not covered by the original
Mortgages) pursuant to documentation substantially in the form of the Mortgages
delivered to the Collateral Agent on the Restructuring Date or in such other
form as is reasonably satisfactory to the Collateral Agent (each, an "ADDITIONAL
MORTGAGE") and constituting valid and enforceable perfected Liens superior to
and prior to the rights of all third persons subject to no other Liens except as
are permitted by Section 6.08 (including pursuant to the CA Mortgage thereon) or
arising by operation of law at the time of perfection thereof, and record or
file, and cause the respective Loan Party to record or file, the Additional
Mortgage or instruments related thereto in such manner and in such places as is
required by law to establish, perfect, preserve and protect the Liens in favor
of the Collateral Agent required to be granted pursuant to the Additional
Mortgages and pay, and cause each such Subsidiary to pay, in full, all Taxes,
fees and other charges payable in connection therewith, in each case subject to
paragraph (d) below; and (z) on or after the CA Termination Date: (I) if any
asset (including any real property (other than real property covered by Section
5.10(b)(II) below) or improvements thereto or any interest therein) that has an
individual fair market value in an amount having a Dollar Equivalent greater
than $20.0 million is first acquired by Holdings, the Borrower or any Domestic
Subsidiary Loan Party or owned by an entity at the time it first becomes a
Domestic Subsidiary Loan Party (in each case other than assets constituting
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Collateral under a Security Document that become subject to the Lien of such
Security Document upon acquisition thereof), cause such asset to be subjected to
a Lien securing the Obligations and take, and cause the Domestic Subsidiary Loan
Parties to take, such actions as shall be necessary or reasonably requested by
the Administrative Agent to grant and perfect such Liens, including actions
described in paragraph (a) of this Section, all at the expense of the Loan
Parties, subject to paragraph (d) below; (II) grant (when the Borrower is US
Holdco), and cause each of the Domestic Subsidiary Loan Parties to grant, to the
Collateral Agent security interests and mortgages in such real property then
first acquired of the Borrower (when it is US Holdco) or any such Domestic
Subsidiary Loan Parties as are not covered by the original Mortgages, and having
a fair market value (as determined in good faith by Holdings) at the time of
acquisition in excess of $20.0 million pursuant to an Additional Mortgage and
constituting valid and enforceable perfected Liens superior to and prior to the
rights of all third persons subject to no other Liens except as are permitted by
Section 6.08 or arising by operation of law, at the time of perfection thereof,
record or file, and cause each such Subsidiary to record or file, the Additional
Mortgage or instruments related thereto in such manner and in such places as is
required by law to establish, perfect, preserve and protect the Liens in favor
of the Collateral Agent required to be granted pursuant to the Additional
Mortgages and pay, and cause each such Subsidiary to pay, in full, all Taxes,
fees and other charges payable in connection therewith, in each case subject to
paragraph (d) below (with respect to each such Additional Mortgage, the Borrower
shall, unless otherwise waived by the Administrative Agent, deliver to the
Collateral Agent contemporaneously therewith a title insurance policy, a survey,
an opinion of counsel and a Real Property Officers' Certificate meeting the
requirements of subsection (h) of the definition of the term "Collateral and
Guarantee Requirement"); and (III) if any additional direct or indirect
Subsidiary of Holdings is then formed or acquired and if such Subsidiary is a
Domestic Subsidiary Loan Party, within 10 Business days after the date such
Subsidiary is formed or acquired, notify the Administrative Agent and the
Lenders thereof and, within 25 Business Days after the date such Subsidiary is
formed or acquired, cause the Collateral and Guarantee Requirement to be
satisfied with respect to such Subsidiary and with respect to any Equity
Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan
Party.
(c) In the case of the Borrower, (i) furnish to the Collateral
Agent prompt written notice of any change (A) in any Loan Party's corporate or
organization name, (B) in any Loan Party's identity or organizational structure
or (C) in any Loan Party's organizational identification number; PROVIDED that
the Borrower shall not effect or permit any such change unless all filings have
been made, or will have been made within any statutory period, under the Uniform
Commercial Code or otherwise that are required in order for the Collateral Agent
to continue at all times following such change to have a valid, legal and
perfected security interest in all the Collateral for the benefit of the Lenders
and (ii) promptly notify the Administrative Agent if any material portion of the
Collateral is damaged or destroyed.
(d) The Collateral and Guarantee Requirement and the other
provisions of this Section 5.10 need not be satisfied with respect to (i) any
real property held by the Borrower or any of its Subsidiaries as a lessee under
a lease, (ii) any Equity Interests acquired after the Closing Date in accordance
with this Agreement if, and to the extent that, and for so long as (A) doing so
would violate applicable law or a contractual obligation binding on such Equity
Interests and (B) such law or obligation existed at the time of the acquisition
thereof and was not created or made binding on such Equity Interests in
contemplation of or in
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connection with the acquisition of such Subsidiary (PROVIDED that the foregoing
clause (B) shall not apply in the case of a joint venture, including a joint
venture that is a Subsidiary) or (iii) any assets acquired after the Closing
Date, to the extent that, and for so long as, taking such actions would violate
a contractual obligation binding on such assets that existed at the time of the
acquisition thereof and was not created or made binding on such assets in
contemplation or in connection with the acquisition of such assets (except in
the case of assets acquired with Indebtedness that is secured by a Lien
permitted pursuant to Section 6.08(i)).
SECTION 5.11 FISCAL YEAR; ACCOUNTING. In the case of Holdings and the
Borrower, cause its fiscal year to end on December 28 or on such other date as
is consented to by the Administrative Agent (which consent shall not be
unreasonably withheld or delayed).
SECTION 5.12 RESTRUCTURING DATE. On or prior to the Restructuring
Date, the Borrower shall deliver, or cause to be delivered, to the
Administrative Agent (i) each of the items referred to in clauses (i), (ii),
(iii) and (iv) of Section 4.01(g) with respect to each Person that is to be a
Loan Party on and after the Restructuring Date but that was not a Loan Party
prior to the Restructuring Date and (ii) such opinions of counsel as reasonably
requested by the Administrative Agent covering such matters relating to the Loan
Parties referred to in (i) (and of the type contained in the opinions delivered
pursuant to Section 4.01(e)) in form and substance reasonably satisfactory to
the Administrative Agent.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower covenants and agrees with each Lender that, so long as
this Agreement shall remain in effect and until the principal of and interest on
each Term Loan C, all fees and all other expenses or amounts payable under any
Loan Document have been paid in full, unless the Required Lenders shall
otherwise consent in writing, the Borrower will not, and (except for Section
6.06) will not permit any of the Restricted Subsidiaries to:
SECTION 6.01 LIMITATION ON INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF
PREFERRED STOCK. (a) Directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable, contingently or
otherwise (collectively, "incur"), with respect to any Indebtedness (including
Acquired Debt), and the Borrower will not permit any of its Restricted
Subsidiaries to issue any shares of Preferred Stock; PROVIDED, HOWEVER, that the
Borrower and any Restricted Subsidiary may incur Indebtedness (including
Acquired Debt) and any Restricted Subsidiary may issue Preferred Stock if the
Fixed Charge Coverage Ratio for the Borrower's most recently ended four full
fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is incurred
or such Preferred Stock is issued would have been at least 2.00 to 1.00,
determined on a PRO FORMA basis (including a PRO FORMA application of the net
proceeds therefrom), as if the additional Indebtedness had been incurred or the
Preferred Stock had been issued, as the case may be, and the application of
proceeds therefrom had occurred at the beginning of such four-quarter period..
(b) The limitations set forth in Section 6.01(a) shall not
prohibit the incurrence of any of the following (collectively, "PERMITTED
DEBT"):
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(i) Indebtedness under the Credit Agreement together with the
incurrence of the guarantees thereunder and the issuance and creation of
letters of credit and bankers' acceptances being deemed to have a principal
amount equal to the face amount thereof), up to an aggregate principal
amount of $1.250 billion outstanding at any one time less the amount of all
mandatory principal payments actually made by the Borrower in respect of
Indebtedness thereunder with Net Proceeds from Asset Sales;
(ii) Indebtedness evidenced by the Term Loans or represented by the
Senior Subordinated Notes and any "parallel debt" of Bidco issued on the
Closing Date;
(iii) Existing Indebtedness (other than Indebtedness described in
clauses (i) and (ii));
(iv) Indebtedness (including Capitalized Lease Obligations)
incurred or issued by the Borrower or any Restricted Subsidiary to finance
the purchase, lease or improvement of property (real or personal) or
equipment that is used or useful in a Permitted Business (whether through
the direct purchase of assets or the Capital Stock of any Person owning
such assets) in an aggregate principal amount that, when aggregated with
the principal amount of all other Indebtedness then outstanding and
incurred pursuant to this clause (iv), does not exceed 4.0% of Total
Assets;
(v) Indebtedness incurred by the Borrower or any Restricted
Subsidiary constituting reimbursement obligations with respect to letters
of credit issued in the ordinary course of business, including without
limitation letters of credit in respect of workers' compensation claims,
health, disability or other employee benefits or property, casualty or
liability insurance or self-insurance or other Indebtedness with respect to
reimbursement-type obligations regarding workers' compensation claims;
(vi) Indebtedness arising from agreements of the Borrower or a
Restricted Subsidiary providing for indemnification, adjustment of purchase
price or similar obligations, in each case, incurred or assumed in
connection with the disposition of any business, assets or a Subsidiary,
other than guarantees of Indebtedness incurred by any Person acquiring all
or any portion of such business, assets or a Subsidiary for the purpose of
financing such acquisition; PROVIDED, HOWEVER, that (A) such Indebtedness
is not reflected on the balance sheet (other than by application of FIN 45
as a result of an amendment to an obligation in existence on the Issue
Date) of the Borrower or any Restricted Subsidiary (contingent obligations
referred to in a footnote to financial statements and not otherwise
reflected on the balance sheet will not be deemed to be reflected on such
balance sheet for purposes of this clause (A)) and (B) the maximum
assumable liability in respect of all such Indebtedness shall at no time
exceed the gross proceeds including non-cash proceeds (the fair market
value of such non-cash proceeds being measured at the time received and
without giving effect to any subsequent changes in value) actually received
by the Borrower and any Restricted Subsidiaries in connection with such
disposition;
(vii) Indebtedness of the Borrower owed to and held by any
Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owed to
and held by the Borrower or any Restricted Subsidiary; PROVIDED, HOWEVER,
that (A) any subsequent issuance or transfer of any Capital Stock or any
other event that results in any such
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Restricted Subsidiary ceasing to be a Restricted Subsidiary or any
subsequent transfer of any such Indebtedness (except to the Borrower or a
Restricted Subsidiary) shall be deemed, in each case, to constitute the
incurrence of such Indebtedness by the issuer thereof and (B) if the
Borrower or any Guarantor is the obligor on such Indebtedness owing to a
Restricted Subsidiary that is not a Guarantor, such Indebtedness is
expressly subordinated to the prior payment in full in cash of all
obligations of the Borrower with respect to the Term Loans C or of such
Guarantor with respect to its Guarantee;
(viii) shares of Preferred Stock of a Restricted Subsidiary issued to
the Borrower or a Restricted Subsidiary; PROVIDED that any subsequent
issuance or transfer of any Capital Stock or any other event which results
in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or
any other subsequent transfer of any such shares of Preferred Stock (except
to the Borrower or a Restricted Subsidiary) shall be deemed in each case to
be an issuance of such shares of Preferred Stock;
(ix) Hedging Obligations of the Borrower or any Restricted
Subsidiary (excluding Hedging Obligations entered into for speculative
purposes) for the purpose of limiting (A) interest rate risk with respect
to any Indebtedness that is permitted by the terms of this Agreement to be
outstanding or (B) exchange rate risk with respect to any currency exchange
or (C) commodity risk;
(x) obligations in respect of performance, bid, appeal and surety
bonds and performance and completion guarantees provided by the Borrower or
any Restricted Subsidiary or obligations in respect of letters of credit
related thereto, in each case in the ordinary course of business or
consistent with past practice;
(xi) Indebtedness of the Borrower or any Restricted Subsidiary or
Preferred Stock of any Restricted Subsidiary not otherwise permitted
hereunder in an aggregate principal amount or liquidation preference which,
when aggregated with the principal amount and liquidation preference of all
other Indebtedness and Preferred Stock then outstanding and incurred
pursuant to this clause (xi), does not at any one time outstanding exceed
$150.0 million (it being understood that any Indebtedness or Preferred
Stock incurred pursuant to this clause (xi) shall cease to be deemed
incurred or outstanding for purposes of this clause (xi) but shall be
deemed incurred for the purposes of the first paragraph of this covenant
from and after the first date on which the Borrower or such Restricted
Subsidiary could have incurred such Indebtedness or Preferred Stock under
the first paragraph of this clause (xi) without reliance on this clause
(xi));
(xii) any guarantee by the Borrower or a Guarantor of Indebtedness
or other obligations of any Restricted Subsidiary so long as the incurrence
of such Indebtedness incurred by such Restricted Subsidiary is permitted
under the terms of this Agreement;
(xiii) the incurrence by the Borrower or any Restricted Subsidiary of
Indebtedness or Preferred Stock that serves to refund or refinance any
Indebtedness incurred as permitted under Section 6.01(a) and clauses (ii)
and (iii) above, this clause (xiii) and clause (xiv) below or any
Indebtedness issued to so refund or refinance such Indebtedness including
additional Indebtedness incurred to pay premiums and fees in connection
therewith (the "REFINANCING INDEBTEDNESS") prior to its respective
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maturity; PROVIDED, HOWEVER, that such Refinancing Indebtedness (A) has a
Weighted Average Life to Maturity at the time such Refinancing Indebtedness
is incurred which is not less than the remaining Weighted Average Life to
Maturity of the Indebtedness being refunded or refinanced, (B) to the
extent such Refinancing Indebtedness refinances Indebtedness subordinated
or pari passu to the Term C Loans, such Refinancing Indebtedness is
subordinated or pari passu to the Term C Loans at least to the same extent
as the Indebtedness being refinanced or refunded, (C) shall not include (x)
Indebtedness or Preferred Stock of a Subsidiary that is not a Guarantor
that refinances Indebtedness or Preferred Stock of the Borrower or a
Guarantor or (y) Indebtedness or Preferred Stock of the Borrower or a
Restricted Subsidiary that refinances Indebtedness or Preferred Stock of an
Unrestricted Subsidiary, (D) shall not be in a principal amount in excess
of the principal amount of, premium, if any, accrued interest on, and
related fees and expenses of, the indebtedness being refunded or refinanced
and (E) shall not have a stated maturity date prior to the Stated Maturity
of the Indebtedness being refunded or refinanced; and provided further,
that subclauses (A), (B) and (E) of this clause (xiii) will not apply to
any refunding or refinancing of any Indebtedness that is Senior Debt (as
defined in the Senior Subordinated Note Indenture);
(xiv) Indebtedness or Preferred Stock of Persons that are acquired
by the Borrower or any Restricted Subsidiary or merged into the Borrower or
a Restricted Subsidiary in accordance with the terms of this Agreement;
PROVIDED that such Indebtedness or Preferred Stock is not incurred in
connection with or in contemplation of such acquisition or merger; and
PROVIDED, FURTHER, that after giving effect to such acquisition or merger,
either (A) the Borrower or such Restricted Subsidiary would be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in Section 6.01(a) or (B) the Fixed
Charge Coverage Ratio would be greater than immediately prior to such
acquisition;
(xv) Indebtedness arising from the honoring by a bank or financial
institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business, provided that such
Indebtedness, other than credit or purchase cards, is extinguished within
five business days of its incurrence;
(xvi) Indebtedness of the Borrower or any Restricted Subsidiary of
the Borrower supported by a letter of credit issued pursuant to the Credit
Agreement in a principal amount not in excess of the stated amount of such
letter of credit;
(xvii) Contribution Indebtedness;
(xviii) Indebtedness consisting of the financing of insurance
premiums;
(xix) (a) if the Borrower could Incur $1.00 of additional
Indebtedness pursuant to Section 6.01(a) after giving effect to such
borrowing, Indebtedness of Foreign Subsidiaries not otherwise permitted
hereunder or (b) if the Borrower could not Incur $1.00 of additional
Indebtedness pursuant to Section 6.01(a) after giving effect to such
borrowing, Indebtedness of Foreign Subsidiaries of the Borrower Incurred
for working capital purposes, PROVIDED, HOWEVER, that the aggregate
principal amount of Indebtedness Incurred under this clause (xix) which,
when aggregated with the principal amount of all other Indebtedness then
outstanding and Incurred pursuant
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to this clause (xix), does not exceed the greater of (x) $280.0 million and
(y) 10% of the consolidated assets of the Foreign Subsidiaries;
(xx) Indebtedness incurred on behalf of or representing Guarantees
of Indebtedness of joint ventures not in excess of $25.0 million at any
time outstanding;
(xxi) Indebtedness incurred by a Securitization Subsidiary in a
Qualified Securitization Financing that is not recourse to the Borrower or
any Restricted Subsidiary of the Borrower other than a Securitization
Subsidiary (except for Standard Securitization Undertakings);
(xxii) letters of credit issued for the account of a Restricted
Subsidiary that is not a Guarantor (and the reimbursement obligations in
respect of which are not guaranteed by a Guarantor) in support of a Captive
Insurance Subsidiary's reinsurance of insurance policies issued for the
benefit of Restricted Subsidiaries and other letters of credit or bank
guarantees having an aggregate face amount not in excess of $10.0 million;
(xxiii) Indebtedness of one or more Subsidiaries organized under the
laws of the People's Republic of China for their own general corporate
purposes in an aggregate principal amount not to exceed $150.0 million at
any time outstanding, PROVIDED that such Indebtedness is not guaranteed by,
does not receive any credit support from and is non-recourse to the
Borrower or any Restricted Subsidiary other than the Subsidiary or
Subsidiaries incurring such Indebtedness; and
(xxiv) all premium (if any), interest (including post-petition
interest), fees, expenses, charges and additional or contingent interest on
obligations described in paragraphs (i) through (xxiii) above.
Notwithstanding anything to the contrary herein, prior to the
Restructuring Date, Bidco shall not be permitted to incur any Indebtedness
[other than Indebtedness under clause (ii) above and, in respect of Indebtedness
under such clause, any Refinancing Indebtedness in respect thereof permitted
under clause (xiii) above and any Indebtedness] incurred in connection with the
HC Activities and the HC Investments.
(c) For purposes of determining compliance with this Section 6.01,
in the event that an item of proposed Indebtedness meets the criteria of more
than one of the categories of Permitted Debt described in clauses (i) through
(xxiv) above, or is entitled to be incurred pursuant to Section 6.01(a), the
Borrower will be permitted to classify and later reclassify such item of
Indebtedness in any manner that complies with this Section 6.01, and such item
of Indebtedness will be treated as having been incurred pursuant to only one of
such categories. Accrual of interest, the accretion of accreted value and the
payment of interest in the form of additional Indebtedness will not be deemed to
be an incurrence of Indebtedness for purposes of this Section 6.01. Indebtedness
under the Credit Agreement outstanding on the date on which the Term Loans C are
first incurred will be deemed to have been incurred on such date in reliance on
the exception provided by Section 6.01(b)(i). The maximum amount of Indebtedness
that the Borrower and its Restricted Subsidiaries may incur pursuant to this
Section 6.01 shall not be deemed to be exceeded, with respect to any outstanding
Indebtedness, solely as a result of fluctuations in the exchange rate of
currencies.
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SECTION 6.02 LIMITATION ON RESTRICTED PAYMENTS. (a) Directly or
indirectly:
(i) declare or pay any dividend or make any other payment or
distribution on account of the Borrower's or any of the Restricted
Subsidiaries' Equity Interests, including any dividend or distribution
payable in connection with any merger or consolidation (other than (A)
dividends or distributions by the Borrower payable in Equity Interests
(other than Disqualified Stock) of the Borrower or in options, warrants or
other rights to purchase such Equity Interests (other than Disqualified
Stock) or (B) dividends or distributions by a Restricted Subsidiary to the
Borrower or any other Restricted Subsidiary so long as, in the case of any
dividend or distribution payable on or in respect of any class or series of
securities issued by a Restricted Subsidiary other than a Wholly Owned
Subsidiary, the Borrower or a Restricted Subsidiary receives at least its
PRO RATA share of such dividend or distribution in accordance with its
Equity Interests in such class or series of securities);
(ii) purchase, redeem or otherwise acquire or retire for value any
Equity Interests of the Borrower or any direct or indirect parent
corporation of the Borrower, including in connection with any merger or
consolidation involving the Borrower;
(iii) make any principal payment on, or redeem, repurchase, defease
or otherwise acquire or retire for value, in each case prior to any
scheduled repayment, sinking fund payment or maturity, any Indebtedness
subordinated or junior in right of payment to the Senior Subordinated Notes
(other than (x) Indebtedness permitted under Section 6.01(b)(vii) and
(viii) or (y) the purchase, repurchase or other acquisition of Indebtedness
subordinated or junior in right of payment to the Senior Subordinated
Notes, as the case may be, purchased in anticipation of satisfying a
sinking fund obligation, principal installment or final maturity, in each
case due within one year of the date of purchase, repurchase or
acquisition); or
(iv) make any Restricted Investment
(all such payments and other actions set forth in clauses (i) through (iv) above
being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the time of
and after giving effect to such Restricted Payment:
(1) no Default or Event of Default shall have occurred and
be continuing or would occur as a consequence of such Restricted
Payment; and
(2) the Borrower would, at the time of such Restricted
Payment and after giving PRO FORMA effect thereto as if such
Restricted Payment had been made at the beginning of the applicable
four-quarter period, have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth in Section 6.01(a); and
(3) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Borrower and the
Restricted Subsidiaries after the Closing Date (excluding Restricted
Payments permitted by clauses (ii), (iii), (iv), (vi), (viii), (ix),
(x), (xi), (xii), (xiii), (xv) and (xvi) of Section 6.02(b)), is less
than the sum, without duplication, of
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(A) 50% of the Consolidated Net Income of the
Borrower for the period (taken as one accounting period) from
the beginning of the first fiscal quarter commencing after the
Closing Date, to the end of the Borrower's most recently ended
fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, in the
case such Consolidated Net Income for such period is a
deficit, minus 100% of such deficit), plus
(B) 100% of the aggregate net cash proceeds and the
fair market value, as determined in good faith by the Board of
Directors of the Borrower, of property and marketable
securities received by the Borrower since immediately after
the Closing Date from the issue or sale of (x) Equity
Interests of the Borrower (including Retired Capital Stock)
(other than (i) Excluded Contributions, (ii) Designated
Preferred Stock and (iii) cash proceeds and marketable
securities received from the sale of Equity Interests to
members of management, directors or consultants of the
Borrower, any direct or indirect parent corporation of the
Borrower and the Subsidiaries to the extent such amounts have
been applied to Restricted Payments made in accordance with
Section 6.02(b)(iv) and, to the extent actually contributed to
the Borrower, Equity Interests of the Borrower's direct or
indirect parent entities and (y) debt securities of the
Borrower that have been converted into such Equity Interests
of the Borrower (other than Refunding Capital Stock or Equity
Interests or convertible debt securities of the Borrower sold
to a Restricted Subsidiary or the Borrower, as the case may
be, and other than Disqualified Stock or debt securities that
have been converted into Disqualified Stock), plus
(C) 100% of the aggregate amount of cash and the
fair market value, as determined in good faith by the Board of
Directors of the Borrower, of property and marketable
securities contributed to the capital of the Borrower
following the Closing Date (other than (i) Excluded
Contributions, (ii) the Cash Contribution Amount and (iii)
contributions by a Restricted Subsidiary), plus
(D) 100% of the aggregate amount received in cash
and the fair market value, as determined in good faith by the
Board of Directors of the Borrower, of property and marketable
securities received by means of:
(I) the sale or other disposition (other
than to the Borrower or a Restricted Subsidiary) of
Restricted Investments made by the Borrower or its
Restricted Subsidiaries and repurchases and
redemptions of such Restricted Investments from the
Borrower or its Restricted Subsidiaries and repayments
of loans or advances which constitute Restricted
Investments by the Borrower or its Restricted
Subsidiaries,
(II) the sale (other than to the Borrower or
a Restricted Subsidiary) of the Capital Stock of an
Unrestricted Subsidiary or a distribution from an
Unrestricted Subsidiary
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(other than in each case to the extent the Investment
in such Unrestricted Subsidiary was made by a
Restricted Subsidiary pursuant to clause (v) or (xiv)
of Section 6.02(b) or to the extent such Investment
constituted a Permitted Investment), or
(III) a dividend from an Unrestricted
Subsidiary, plus
(E) in the case of the redesignation of an
Unrestricted Subsidiary as a Restricted Subsidiary or the
merger or consolidation of an Unrestricted Subsidiary into the
Borrower or a Restricted Subsidiary or the transfer of assets
of an Unrestricted Subsidiary to the Borrower or a Restricted
Subsidiary, the fair market value of the Investment in such
Unrestricted Subsidiary, as determined by the Board of
Directors of the Borrower in good faith at the time of the
redesignation of such Unrestricted Subsidiary as a Restricted
Subsidiary or at the time of such merger, consolidation or
transfer of assets (other than an Unrestricted Subsidiary to
the extent the Investment in such Unrestricted Subsidiary was
made by a Restricted Subsidiary pursuant to clause (v) or
(xiv) of Section 6.02(b) or to the extent such Investment
constituted a Permitted Investment).
(b) The provisions of Section 6.02(a) shall not prohibit:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at the date of declaration such payment would have
complied with the provisions of this Agreement;
(ii) (A) the redemption, repurchase, retirement or other
acquisition of any Equity Interests of the Borrower or any direct or
indirect parent corporation ("RETIRED CAPITAL STOCK") or Indebtedness
subordinated to the Notes, as the case may be, in exchange for or out of
the proceeds of the substantially concurrent sale (other than to a
Restricted Subsidiary or the Borrower) of Equity Interests of the Borrower
or contributions to the equity capital of the Borrower (in each case, other
than Disqualified Stock) ("REFUNDING CAPITAL STOCK"); and (A) the
declaration and payment of accrued dividends on the Retired Capital Stock
out of the proceeds of the substantially concurrent sale (other than to a
Restricted Subsidiary or the Borrower) of Refunding Capital Stock;
(iii) the redemption, repurchase or other acquisition or retirement
of Indebtedness subordinated to the Term Loans C or a Guarantee thereof
made by exchange for, or out of the proceeds of the substantially
concurrent sale of, new Indebtedness of the borrower thereof, which is
incurred in compliance with Section 6.01 so long as
(A) the principal amount of such new Indebtedness
does not exceed the principal amount of the Indebtedness
subordinated to the Term Loans C or a Guarantee being so
redeemed, repurchased, acquired or retired for value plus the
amount of any reasonable premium required to be paid under the
terms of the instrument governing the Indebtedness
subordinated to the Term Loans C or a Guarantee being so
redeemed, repurchased, acquired or retired,
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(B) such new Indebtedness is subordinated to the
Term Loans C and any such applicable Guarantees at least to
the same extent as such Indebtedness subordinated to the Term
Loans C and/or Guarantees so purchased, exchanged, redeemed,
repurchased, acquired or retired for value,
(C) such new Indebtedness has a final scheduled
maturity date equal to or later than the final scheduled
maturity date of the Indebtedness subordinated to such Term
Loans C or a Guarantee being so redeemed, repurchased,
acquired or retired and
(D) such new Indebtedness has a Weighted Average
Life to Maturity equal to or greater than the remaining
Weighted Average Life to Maturity of the Indebtedness
subordinated to the Term Loans C or a Guarantee being so
redeemed, repurchased, acquired or retired;
(iv) a Restricted Payment to pay for the repurchase, retirement or
other acquisition or retirement for value of common Equity Interests of the
Borrower or any of its direct or indirect parent entities held by any
future, present or former employee, director or consultant of the Borrower,
any of its Subsidiaries or (to the extent such person renders services to
the businesses of the Borrower and its Subsidiaries) the Borrower's direct
or indirect parent entities, pursuant to any management equity plan or
stock option plan or any other management or employee benefit plan or
agreement or arrangement; provided, however, that the aggregate amount of
all such Restricted Payments made under this clause (iv) does not exceed in
any calendar year $20.0 million (with unused amounts in any calendar year
being carried over to the next two succeeding calendar years); and
provided, further, that such amount in any calendar year may be increased
by an amount not to exceed:
(A) the cash proceeds from the sale of Equity
Interests of the Borrower and, to the extent contributed to
the Borrower, Equity Interests of any of its direct or
indirect parent entities, in each case to members of
management, directors or consultants of the Borrower, any of
its Subsidiaries or (to the extent such person renders
services to the businesses of the Borrower and its
Subsidiaries) the Borrower's direct or indirect parent
entities, that occurs after the Closing Date; plus
(B) the amount of any cash bonuses otherwise
payable by the Borrower or its to members of management,
directors or consultants of the Borrower or any of its
Subsidiaries or (to the extent such person renders services to
the businesses of the Borrower and its Subsidiaries) the
Borrower's direct or indirect parent entities, in connection
with the Transaction that are foregone in return for the
receipt of Equity Interests of the Borrower or any direct or
indirect parent entity of the Borrower pursuant to a deferred
compensation plan of such entity; plus
(C) the cash proceeds of key man life insurance
policies received by the Borrower or its Restricted
Subsidiaries, or by any direct or indirect parent entity to
the extent contributed to the Borrower, after the Closing
Date; less
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(D) the amount of any Restricted Payments
previously made pursuant to clauses (A), (B) and (C) of this
clause (iv);
(PROVIDED that the Borrower may elect to apply all or any portion of the
aggregate increase contemplated by clauses (A), (B) and (C) above in any
calendar year);
(v) Investments in Unrestricted Subsidiaries having an aggregate
fair market value, taken together with all other Investments made pursuant
to this clause (v) that are at the time outstanding, without giving effect
to the sale of an Unrestricted Subsidiary to the extent the proceeds of
such sale do not consist of cash and/or marketable securities, not to
exceed $75.0 million at the time of such Investment (with the fair market
value of each Investment being measured at the time made and without giving
effect to subsequent changes in value);
(vi) repurchases of Equity Interests deemed to occur upon exercise
of stock options or warrants if such Equity Interests represent a portion
of the exercise price of such options or warrants;
(vii) the payment of dividends on the Borrower's common stock (or
the payment of dividends to any direct or indirect parent entity to fund a
payment of dividends on such entity's common stock) following the first
public offering of the Borrower's common stock or the common stock of any
of its direct or indirect parent entities after the Closing Date, of up to
6.0% per annum or the net proceeds received by or contributed to the
Borrower in any past or future public offering, other than public offerings
with respect to the Borrower's or its parent's common stock registered on
Form S-8 and other than any public sale constituting an Excluded
Contribution;
(viii) Investments that are made with Excluded Contribution;
(ix) the declaration and payment of dividends to, or the making of
loans to, Holdings (or if the direct parent of the Borrower is New US
Holdco, to New US Holdco, which in turn will declare and pay dividends to,
or make loans to, Holdings) in amounts required for it to pay;
(A) (i) overhead, tax liabilities of Holdings
(including, prior to the consummation of the Parent Merger,
any distribution necessary to allow Holdings to make a Tax
Distribution in accordance with clause (B) below), legal,
accounting and other professional fees and expenses, (ii) fees
and expenses related to any equity offering, investment or
acquisition permitted hereunder (whether or not successful)
and (iii) other fees and expenses in connection with the
maintenance of its existence and its ownership of the
Borrower;
(B) (i) with respect to each tax year (or portion
thereof) that Holdings qualifies as a Flow Through Entity, a
distribution by Holdings to the holders of the Equity
Interests of Holdings of an amount equal to the product of (x)
the amount of aggregate net taxable income allocated by
Holdings to the direct or indirect holders of the Equity
Interests of Holdings for such period and (y) the Presumed Tax
Rate for such period and (ii) with respect to any tax year (or
portion
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thereof) that Holdings does not qualify as a Flow Through
Entity, the payment of dividends or other distributions to any
direct or indirect holders of Equity Interests of Holdings in
amounts required for such holder to pay federal, state or
local income taxes (as the case may be) imposed directly on
such holder to the extent such income taxes are attributable
to the income of Holdings and its Subsidiaries; PROVIDED,
HOWEVER, that in each case the amount of such payments in
respect of any tax year does not exceed the amount that
Holdings and its Subsidiaries would have been required to pay
in respect of federal, state or local taxes (as the case may
be) in respect of such year if Holdings and its Subsidiaries
paid such taxes directly as a stand-alone taxpayer (or
stand-alone group); and
(C) at any time on or after the fifth anniversary
of the CA Closing Date, if the Borrower would, at the time of
such payment and after giving PRO FORMA effect thereto as if
such payment had been made on the last day of the applicable
four-quarter period, have been permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in Section 6.01(a), current
dividend or interest obligations, accruing after the fifth
anniversary of the CA Closing Date, under the Preferred
Shares, in accordance with the terms thereof as in effect on
the CA Closing Date, or such security as has been exchanged
therefor pursuant to the terms of the Preferred Shares as in
effect on the CA Closing Date;
(x) Distributions or payments of Securitization Fees;
(xi) cash dividends or other distributions on the Borrower's or any
Restricted Subsidiary's Capital Stock used to, or the making of loans, the
proceeds of which will be used to, fund the payment of fees and expenses
incurred in connection with the Transaction, the offering of the Senior
Subordinated Notes, the incurrence of the Term Loans C or owed to
Affiliates, in each case to the extent permitted by Section 6.05;
(xii) declaration and payment of dividends to holders of any class
or series of Disqualified Stock of the Borrower or any Restricted
Subsidiary issued in accordance with Section 6.01 [to the extent such
dividends are included in the definition of Fixed Charges];
(xiii) payment to the Company's minority shareholders of the
"guaranteed dividends" (Ausgleichszahlung) payable pursuant to the
Domination Agreement;
(xiv) other Restricted Payments in an aggregate amount not to exceed
$50 million;
(xv) the declaration and payment of dividends or distributions to
holders of any class or series of Designated Preferred Stock issued after
the Closing Date and the declaration and payment of dividends to any direct
or indirect parent company of the Borrower, the proceeds of which will be
used to fund the payment of dividends to holders of any class or series of
Designated Preferred Stock of any direct or indirect parent company of the
Borrower issued after the Closing Date; PROVIDED, HOWEVER,
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that (A) for the most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date
of issuance of such Designated Preferred Stock, after giving effect to such
issuance on the first day of such period (and the payment of dividends or
distributions) on a PRO FORMA basis, the Borrower would have had a Fixed
Charge Coverage Ratio of at least 2.00 to 1.00 and (B) the aggregate amount
of dividends declared and paid pursuant to this clause (xv) does not exceed
the net cash proceeds actually received by the Borrower from any such sale
of Designated Preferred Stock issued after the Closing Date;
(xvi) the distribution, as a dividend or otherwise, of shares of
Capital Stock of, or Indebtedness owed to the Borrower or a Restricted
Subsidiary of the Borrower by, Unrestricted Subsidiaries;
(xvii) the repurchase, redemption or other acquisition or retirement
for value of any Subordinated Indebtedness pursuant to provisions similar
to Sections 4.06 and 4.08 of the Senior Subordinated Note Indenture;
PROVIDED that all Term Loans C have been repaid; and
(xviii) the payment to Company's shareholders of the "minimum
dividend" (MINDESTAUSSCHUTTUNG) payable pursuant to Section 254 of the
German Stock Corporation Act (AKTIENGESETZ) in an aggregate amount not to
exceed $6,000,000 per year;
PROVIDED, HOWEVER, that at the time of, and after giving effect to, any
Restricted Payment permitted under clauses (ii) (with respect to the payment of
dividends on Refunding Capital Stock pursuant to clause (B) thereof), (v),
(vii), (ix)(C),(xi), (xiv), (xv), (xvi) and (xvii) of this Section 6.02(b), no
Default or Event of Default shall have occurred and be continuing or would occur
as a consequence thereof.
The amount of all Restricted Payments (other than cash) will be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Borrower or such
Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair
market value of any assets or securities that are required to be valued by this
covenant will be determined in good faith by the Board of Directors of the
Borrower.
(c) As of the Closing Date, all of the Borrower's Subsidiaries
will be Restricted Subsidiaries. The Borrower will not permit any Unrestricted
Subsidiary to become a Restricted Subsidiary except pursuant to the second to
last sentence of the definition of "Unrestricted Subsidiary". For purposes of
designating any Restricted Subsidiary as an Unrestricted Subsidiary, all
outstanding investments by the Borrower and the Restricted Subsidiaries (except
to the extent repaid) in the Subsidiary so designated will be deemed to be
Restricted Payments in an amount determined as set forth in the second paragraph
of the definition of "Investments". Such designation will be permitted only if a
Restricted Payment in such amount would be permitted at such time under this
covenant or the definition of Permitted Investments and if such Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary. Unrestricted
Subsidiaries will not be subject to any of the restrictive covenants under this
Agreement.
(d) Prior to the Restructuring Date, directly or indirectly, make
or agree to pay or make, any payment or other distribution (whether in cash,
securities or other property)
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of or in respect of principal of the Bidco Loan, or any payment or other
distribution (whether in cash, securities or other property) on account of the
purchase, redemption, defeasance or termination of the Bidco Loan, except
payments permitted under the Bidco Pledge, unless after giving effect to any
such payment or distribution and any contemporaneous application thereof towards
repayment or redemption of the principal amount of the Term Loans C, the
outstanding principal amount of the Bidco Loan exceeds the aggregate principal
amount of Term Loans C then outstanding.
SECTION 6.03 DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES. Directly or indirectly, create or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(a) pay dividends or make any other distributions on its Capital
Stock to the Borrower or any of its Restricted Subsidiaries, or with
respect to any other interest or participation in, or measured by, its
profits, or pay any Indebtedness owed to the Borrower or any of its
Restricted Subsidiaries;
(b) make loans or advances to the Borrower or any of its
Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the
Borrower or any of its Restricted Subsidiaries;
except in each case for such encumbrances or restrictions existing under or by
reason of:
(1) contractual encumbrances or restrictions in effect on the
Closing Date, including, without limitation, pursuant to Existing
Indebtedness or the Credit Agreement and related documentation;
(2) this Agreement and the Senior Subordinated Note Indenture and
the Senior Subordinated Notes;
(3) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the nature
discussed in clause (c) above on the property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(5) any agreement or other instrument of a Person acquired by the
Borrower or any Restricted Subsidiary in existence at the time of such
acquisition (but not created in contemplation thereof), which encumbrance
or restriction is not applicable to any Person, or the properties or assets
of any Person, other than the Person, or the property or assets of the
Person, so acquired;
(6) contracts for the sale of assets, including, without
limitation, customary restrictions with respect to a Subsidiary pursuant to
an agreement that has been entered into for the sale or disposition of all
or substantially all of the Capital Stock or assets of such Subsidiary;
(7) secured Indebtedness otherwise permitted to be incurred
pursuant Section 6.01 that limits the right of the debtor to dispose of the
assets securing such Indebtedness;
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(8) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business;
(9) other Indebtedness of Restricted Subsidiaries (i) that are
Guarantors which Indebtedness is permitted to be incurred pursuant to an
agreement entered into subsequent to the Closing Date in accordance with
Section 6.01 or (ii) that are Foreign Subsidiaries which Indebtedness is
incurred subsequent to the Closing Date pursuant to Sections 6.01(b)(iv),
(xi) or (xix);
(10) customary provisions in joint venture agreements and other
similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases or licenses of
intellectual property and other similar agreements entered into in the
ordinary course of business;
(12) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest; or
(13) customary provisions restricting assignment of any agreement
entered into in the ordinary course of business;
(14) any encumbrances or restrictions of the type referred to in
clauses (a), (b) and (c) above imposed by any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings of the contracts, instruments or obligations referred to in
clauses (1), (2) and (5) above; PROVIDED that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are, in the good faith judgment of the
Borrower's Board of Directors, no more restrictive with respect to such
dividend and other payment restrictions than those contained in the
dividend or other payment restrictions prior to such amendment,
modification, restatement, renewal, increase, supplement, refunding,
replacement or refinancing; or
(15) any encumbrance or restriction of a Securitization Subsidiary
effected in connection with a Qualified Securitization Financing; PROVIDED,
HOWEVER, that such restrictions apply only to such Securitization
Subsidiary.
SECTION 6.04 ASSET SALES. Consummate an Asset Sale unless (1) the
Borrower or the respective Restricted Subsidiary, as the case may be, receives
consideration at the time of the Asset Sale at least equal to the fair market
value of the assets or Equity Interests issued or sold or otherwise disposed of;
and (2) except with respect to any sale of the performance products business of
Nutrinova, at least 75% of the consideration received in the Asset Sale by the
Borrower or such Restricted Subsidiary is in the form of cash or Cash
Equivalents. The amount of:
(i) any liabilities (as shown on the Borrower's or such Restricted
Subsidiary's most recent balance sheet or in the notes thereto) of the
Borrower or any Restricted Subsidiary (other than liabilities that are by
their terms subordinated to the Notes) that are assumed by the transferee
of any such assets and for which the Borrower and all Restricted
Subsidiaries have been validly released by all creditors in writing,
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(ii) any securities received by the Borrower or such Restricted
Subsidiary from such transferee that are converted by the Borrower or such
Restricted Subsidiary into cash (to the extent of the cash received) within
180 days following the receipt thereof and
(iii) any Designated Non-cash Consideration received by the Borrower
or any of its Restricted Subsidiaries in such Asset Sale having an
aggregate fair market value (as determined in good faith by the Borrower),
taken together with all other Designated Non-cash Consideration received
pursuant to this clause (iii) that is at that time outstanding, not to
exceed the greater of (x) $75.0 million and (y) 1.5% of Total Assets at the
time of the receipt of such Designated Non-cash Consideration (with the
fair market value of each item of Designated Non-cash Consideration being
measured at the time received without giving effect to subsequent changes
in value)
shall be deemed to be cash solely for the purposes of this Section 6.04.
SECTION 6.05 TRANSACTION WITH AFFILIATES. (a) Make any payment to, or
sell, lease, transfer or otherwise dispose of any of its properties or assets
to, or purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate (each, an "AFFILIATE TRANSACTION")
involving aggregate consideration in excess of $7.5 million, unless:
(i) the Affiliate Transaction is on terms that are not materially
less favorable, taken as a whole, to the Borrower or the relevant
Restricted Subsidiary than those that would have been obtained in a
comparable transaction by the Borrower or such Restricted Subsidiary with
an unrelated Person on an arms length basis; and
(ii) the Borrower delivers to the Administrative Agent, with
respect to any Affiliate Transaction or series of related Affiliate
Transaction involving aggregate consideration in excess of $25.0 million, a
resolution of the Board of Directors set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with this covenant and
that such Affiliate Transaction has been approved by a majority of the
disinterested members, if any, of the Board of Directors.
(b) The provisions of Section 6.05(a) shall not apply to the
following:
(i) transactions between or among the Borrower and/or any
Restricted Subsidiary or any entity that becomes a Restricted Subsidiary as
a result of such transaction;
(ii) Restricted Payments and Permitted Investments (other than
pursuant to clause (13) of the definition thereof) permitted by Section
6.02;
(iii) the payment to Blackstone of annual management, consulting,
monitoring and advisory fees in an aggregate amount in any fiscal year not
in excess of the greater of (A) $5.0 million and (B) 2% of EBITDA of the
Borrower for the immediately preceding fiscal year, plus reasonable
out-of-pocket costs and expenses in connection therewith and unpaid amounts
accrued for prior periods (but after the Closing Date), and the execution
of any management or monitoring agreement subject to the same limitations;
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(iv) the payment of reasonable and customary fees paid to, and
indemnities provided on behalf of, officers, directors, employees or
consultants of the Borrower, any Restricted Subsidiary or (to the extent
such person renders services to the businesses of the Borrower and its
Subsidiaries) any of the Borrower's direct or indirect parent entities;
(v) payments by the Borrower or any Restricted Subsidiary to
Blackstone and any of its Affiliates made for any financial advisory,
financing, underwriting or placement services or in respect of other
investment banking activities, including, without limitation, in connection
with acquisitions or divestitures, which payments are approved by a
majority of the members of the Board of Directors of the Borrower in good
faith;
(vi) transactions in which the Borrower or any Restricted
Subsidiary delivers to the Administrative Agent a letter from an
Independent Financial Advisor stating that such transaction is fair to the
Borrower or such Restricted Subsidiary from a financial point of view;
(vii) payments or loans (or cancellations of loans) to employees or
consultants of the Borrower, any Restricted Subsidiary or (to the extent
such person renders services to the businesses of the Borrower and its
Subsidiaries) any of the Borrower's direct or indirect parent entities,
which are approved by a majority of the Board of Directors of the Borrower
in good faith and which are otherwise permitted under this Agreement;
(viii) payments made or performance under any agreement as in effect
on the CA Closing Date (including, without limitation, each of the
agreements entered into in connection with the Transaction) or any
amendment thereto (so long as any such amendment is not less advantageous
to the Lenders in any material respect than the original agreement as in
effect on the CA Closing Date);
(ix) the existence of, or the performance by the Borrower or any of
its Restricted Subsidiaries of its obligations under the terms of, the
Shareholders' Agreement (including any registration rights agreement or
purchase agreements related thereto to which it is party as of the CA
Closing Date and any similar agreement that it may enter into thereafter);
provided, however, that the existence of, or the performance by the
Borrower or any of its Restricted Subsidiaries of its obligations under any
future amendment to the Shareholders' Agreement or under any similar
agreement entered into after the CA Closing Date shall only be permitted by
this clause (ix) to the extent that the terms of any such amendment or new
agreement are not otherwise disadvantageous to Lenders in any material
respect;
(x) the Transaction and the payment of all fees and expenses
related to the Transaction, including any fees to Blackstone;
(xi) transactions pursuant to the Restructuring;
(xii) transactions with customers, clients, suppliers, or purchasers
or sellers of goods or services, in each case in the ordinary course of
business and otherwise in compliance with the terms of this Agreement that
are fair to the Borrower or the Restricted Subsidiaries, in the reasonable
determination of the members of the Board
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of Directors of the Borrower or the senior management thereof, or are on
terms at least as favorable as might reasonably have been obtained at such
time from an unaffiliated party;
(xiii) if otherwise permitted hereunder, the issuance of Equity
Interests (other than Disqualified Stock) of Holdings to any Permitted
Holder or of the Borrower to Holdings or to any Permitted Holder;
(xiv) any transaction effected as part of a Qualified Securitization
Financing;
(xv) any employment agreements entered into by the Borrower or any
of the Restricted Subsidiaries in the ordinary course of business;
(xvi) transactions with joint ventures for the purchase or sale of
chemicals, equipment and services entered into in the ordinary course of
business and in a manner consistent with past practice;
(xvii) any issuance of securities, or other payments, awards or
grants in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans approved
by the Board of Directors of the Borrower;
(xviii) HC Investments and HC Activities; and
(xix) any guarantee by any Subsidiary organized under the laws of
the People's Republic of China in respect of Indebtedness permitted under
Section 6.01(b)(xxiii).
SECTION 6.06 CONSOLIDATION, MERGER OR SALE OF ASSETS OF THE BORROWER.
(a) Directly or indirectly (x) consolidate or merge with or into or wind up into
another Person (whether or not Holdings or the Borrower, as the case may be, is
the surviving corporation) or (y) sell, assign, transfer, convey or otherwise
dispose of all or substantially all of its properties or assets, in one or more
related transactions, to another Person, unless, in the case of any of the
foregoing relating to the Borrower, in each case:
(i) either:
(A) the Borrower is the surviving corporation; or
(B) the Person formed by or surviving any such
consolidation or merger (if other than the Borrower) or to which such
sale, assignment, transfer, conveyance or other disposition has been
made is a corporation organized or existing under the laws of the
jurisdiction of organization of the Borrower or the United States, any
state of the United States, the District of Columbia or any territory
thereof (the Borrower or such Person, as the case may be, hereinafter
referred to as the "SUCCESSOR COMPANY");
(ii) the Successor Company (if other than the Borrower) expressly
assumes all the obligations of the Borrower under the Agreement pursuant to
agreements reasonably satisfactory to the Administrative Agent;
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(iii) immediately after such transaction no Default or Event of
Default exists;
(iv) after giving PRO FORMA effect thereto and any related
financing transactions as if the same had occurred at the beginning of the
applicable four-quarter period, either
(A) the Successor Company (if other than the Borrower),
would have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in Section 6.01(a) determined on a PRO FORMA basis (including
PRO FORMA application of the net proceeds therefrom), as if such
transaction had occurred at the beginning of such four-quarter period;
or
(B) the Fixed Charge Coverage Ratio for the Successor
Company and its Restricted Subsidiaries would be greater than such
ratio for the Borrower and its Restricted Subsidiaries immediately
prior to such transaction;
(v) each Guarantor, unless it is the other party to the
transactions described above, in which case clause (ii) shall apply, shall
have confirmed in writing that its Guarantee shall apply to such Person's
obligations under this Agreement and the Loan Documents; and
(vi) the Borrower shall have delivered to the Administrative Agent
a certificate from a Responsible Officer and an Opinion of Counsel, each
stating that such consolidation, merger or transfer and such amendment or
supplement (if any) comply with this Agreement.
The Successor Company shall succeed to, and be substituted for, the
Borrower under this Agreement. Notwithstanding the foregoing clauses of this
Section 6.06, (a) any Restricted Subsidiary (other than, prior to the
Restructuring Date, Bidco) may consolidate with, merge into or transfer all or
part of its properties and assets to the Borrower or to another Restricted
Subsidiary and (b) the Borrower may merge with an Affiliate incorporated solely
for the purpose of reincorporating the Borrower in a (or another) state of the
United States, so long as the amount of Indebtedness of the Borrower and its
Restricted Subsidiaries is not increased thereby. Notwithstanding anything
contained in this paragraph, the Parent Merger shall be permitted.
SECTION 6.07 CONSOLIDATION, MERGER OR SALE OF ASSETS BY A GUARANTOR.
(a) Subject to the provisions of the U.S. Collateral Agreement governing the
release of its Guarantee thereunder upon the sale or disposition of a Restricted
Subsidiary, permit any Subsidiary that is a Guarantor to consolidate or merge
with or into or wind up into (whether or not such Person is the surviving
corporation), or sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of its properties or assets in one or more related
transactions to any Person (other than any such sale, assignment, transfer,
lease, conveyance or disposition in connection with the Transaction described in
the [Information Memorandum]) unless:
(i) such Guarantor is the surviving corporation or the Person
formed by or surviving any such consolidation or merger (if other than such
Guarantor) or to which
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such sale, assignment, transfer, lease, conveyance or other disposition
will have been made is a corporation organized or existing under the laws
of the United States, any state thereof, the District of Columbia or any
territory thereof (such Guarantor or such Person, as the case may be, being
herein called the "SUCCESSOR GUARANTOR");
(ii) the Successor Guarantor (if other than such Guarantor)
expressly assumes all the obligations of such Guarantor under the Loan
Documents pursuant to supplemental indentures or other documents or
instruments in form reasonably satisfactory to the Administrative Agent;
(iii) immediately after such transaction no Default or Event of
Default shall exist; and
(iv) the Borrower shall have delivered to the Administrative Agent
a certificate from a Responsible Officer and an Opinion of Counsel, each
stating that such consolidation, merger or transfer and such amendment or
supplement (if any) comply with this Agreement.
The Successor Guarantor will succeed to, and be substituted for, such
Guarantor under the Loan Documents. Notwithstanding the foregoing, (a) a
Guarantor may merge with an Affiliate incorporated solely for the purpose of
reincorporating such Guarantor in another state of the United States, the
District of Columbia or any territory thereof, so long as the amount of
Indebtedness of the Guarantor is not increased thereby, and (b) any Guarantor
may merge into or transfer all or part of its properties and assets to the
Borrower or another Guarantor.
Notwithstanding anything to the contrary herein, except as expressly
permitted under this Agreement (x) no Guarantor shall be permitted to
consolidate with, merge into or transfer all or part of its properties and
assets to Holdings and (y) Bidco shall not (prior to the Restructuring Date) be
permitted to consolidate with, merge into or transfer all or part of its
properties and assets to any Person).
SECTION 6.08 LIENS. Create, incur, assume or permit to exist any Lien
on any property or assets (including stock or other securities of any person,
including any Subsidiary) at the time owned by it or on any income or revenues
or rights in respect of any thereof, except:
(a) Liens on property or assets of the Company and its
Subsidiaries existing on the Closing Date and set forth on SCHEDULE
6.08(a); PROVIDED that such Liens shall secure only those obligations that
they secure on the Closing Date (and extensions, renewals and refinancings
of such obligations permitted by Section 6.01) and shall not subsequently
apply to any other property or assets of Holdings or any of its
Subsidiaries;
(b) any Lien created under the CA Loan Documents or under the Loan
Documents or permitted in respect of any Mortgaged Property by the terms of
the applicable Mortgage;
(c) any Lien on any property or asset of the Borrower or any
Subsidiary securing Indebtedness (or Permitted Secured Refinancing
Indebtedness refinancing same) permitted by Section 6.01(b) of the Credit
Agreement as in effect on the
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Closing Date, PROVIDED that such Lien (i) does not apply to any other
property or assets of the Borrower or any of the Subsidiaries not securing
such Indebtedness at the date of the acquisition of such property or asset
(other than after acquired property subjected to a Lien securing
Indebtedness and other obligations incurred prior to such date and which
Indebtedness and other obligations are permitted hereunder that require a
pledge of after acquired property, it being understood that such
requirement shall not be permitted to apply to any property to which such
requirement would not have applied but for such acquisition), (ii) such
Lien is not created in contemplation of or in connection with such
acquisition and (iii) in the case of a Lien securing Permitted Secured
Refinancing Indebtedness, any such Lien is permitted, subject to compliance
with the proviso in the definition of the term "Permitted Secured
Refinancing Indebtedness";
(d) Liens for Taxes, assessments or other governmental charges or
levies not yet delinquent or that are being contested in compliance with
Section 5.03;
(e) landlord's, carriers', warehousemen's, mechanics',
materialmen's, repairmen's, construction or other like Liens arising in the
ordinary course of business and securing obligations that are not overdue
by more than 45 days or that are being contested in good faith by
appropriate proceedings and in respect of which, if applicable, Holdings or
any Subsidiary shall have set aside on its books reserves in accordance
with US GAAP;
(f) (i) pledges and deposits made in the ordinary course of
business in compliance with the Federal Employers Liability Act or any
other workers' compensation, unemployment insurance and other social
security laws or regulations and deposits securing liability to insurance
carriers under insurance or self-insurance arrangements in respect of such
obligations and (ii) pledges and deposits securing liability for
reimbursement or indemnification obligations of (including obligations in
respect of letters of credit or bank guarantees for the benefit of)
insurance carriers providing property, casualty or liability insurance to
Holdings or any Subsidiary;
(g) pledges and deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases (other than Capitalized
Lease Obligations), statutory obligations, surety and appeal bonds,
performance and return of money bonds, bids, leases, government contracts,
trade contracts, and other obligations of a like nature incurred in the
ordinary course of business, including those incurred to secure health,
safety and environmental obligations in the ordinary course of business;
(h) zoning restrictions, easements, trackage rights, leases (other
than Capitalized Lease Obligations), licenses, special assessments,
rights-of-way, restrictions on use of real property and other similar
encumbrances incurred in the ordinary course of business that, in the
aggregate, do not interfere in any material respect with the ordinary
conduct of the business of Holdings or any Subsidiary;
(i) purchase money security interests in equipment or other
property or improvements thereto hereafter acquired (or, in the case of
improvements, constructed) by Holdings or any Subsidiary (including the
interests of vendors and lessors under conditional sale and title retention
agreements); PROVIDED that (i) such security interests secure Indebtedness
permitted by Section 6.01(i) of the Credit Agreement as in effect on the
Closing Date (including any Permitted Secured
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Refinancing Indebtedness in respect thereof), (ii) such security interests
are incurred, and the Indebtedness secured thereby is created, within 270
days after such acquisition (or construction), (iii) the Indebtedness
secured thereby does not exceed 100% of the cost of such equipment or other
property or improvements at the time of such acquisition (or construction),
including transaction costs incurred by Holdings or any Subsidiary in
connection with such acquisition (or construction) and (iv) such security
interests do not apply to any other property or assets of Holdings or any
Subsidiary (other than to accessions to such equipment or other property or
improvements); PROVIDED, FURTHER, that individual financings of equipment
provided by a single lender may be cross-collateralized to other financings
of equipment provided solely by such lender;
(j) Liens arising out of capitalized lease transactions permitted
under Section 6.03 of the Credit Agreement, so long as such Liens attach
only to the property sold and being leased in such transaction and any
accessions thereto or proceeds thereof and related property;
(k) Liens securing judgments that do not constitute an Event of
Default under Section 7.01(i);
(l) other Liens with respect to property or assets of Holdings or
any Subsidiary with an aggregate fair market value (valued at the time of
creation thereof) of not more than $75.0 million at any time;
(m) Liens disclosed by the title insurance policies delivered
pursuant to sub-section (i) of the definition of Collateral and Guarantee
Requirement, Section 5.12 or Section 5.10 and any replacement, extension or
renewal of any such Lien; PROVIDED that such replacement, extension or
renewal Lien shall not cover any property other than the property that was
subject to such Lien prior to such replacement, extension or renewal;
PROVIDED, FURTHER, that the Indebtedness and other obligations secured by
such replacement, extension or renewal Lien are permitted by this
Agreement;
(n) Liens in respect of Qualified Securitization Financings;
(o) any interest or title of a lessor under any leases or
subleases entered into by Holdings or any Subsidiary in the ordinary course
of business;
(p) Liens that are contractual rights of set-off (i) relating to
the establishment of depository relations with banks not given in
connection with the issuance of Indebtedness, (ii) relating to pooled
deposit or sweep accounts of Holdings or any Subsidiary to permit
satisfaction of overdraft or similar obligations incurred in the ordinary
course of business of Holdings and the Subsidiaries or (iii) relating to
purchase orders and other agreements entered into with customers of
Holdings or any Subsidiary in the ordinary course of business;
(q) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights;
(r) Liens securing obligations in respect of trade-related letters
of credit permitted under Section 6.01(f) or (q) of the Credit Agreement
and covering the
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goods (or the documents of title in respect of such goods) financed by such
letters of credit and the proceeds and products thereof;
(s) licenses of intellectual property granted in a manner
consistent with past practice;
(t) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(u) Liens on the assets of a Foreign Subsidiary that do not
constitute Collateral and which secure Indebtedness of such Foreign
Subsidiary (or of another Foreign Subsidiary) that is not otherwise secured
by a Lien on the Collateral under the Loan Documents and that is permitted
to be incurred under Section 6.01(a), (k) or (t) of the Credit Agreement;
(v) Liens upon specific items of inventory or other goods and
proceeds of Holdings or any of the Subsidiaries securing such person's
obligations in respect of bankers' acceptances issued or created for the
account of such person to facilitate the purchase, shipment or storage of
such inventory or other goods;
(w) Liens solely on any cash earnest money deposits made by
Holdings or any of the Subsidiaries in connection with any letter of intent
or purchase agreement permitted hereunder; and
(x) Liens on the assets of one or more Subsidiaries organized
under the laws of the People's Republic of China securing Indebtedness
permitted under Section 6.01(b)(23).
Notwithstanding the foregoing, no Liens shall be permitted to exist, directly or
indirectly, on Pledged Collateral, other than Liens created pursuant to the CA
Loan Documents or the Loan Documents and Liens permitted by Section 6.08(d), (e)
or (q).
SECTION 6.09 LIMITATION ON MODIFICATIONS AND PREPAYMENTS. (a) Amend or
modify in any manner materially adverse to the Lenders, or grant any waiver or
release under or terminate in any manner (if such granting or termination shall
be materially adverse to the Lenders), the articles or certificate of
incorporation or by-laws or partnership agreement or limited liability company
operating agreement (including all agreements establishing, governing or
evidencing the Parent CPEC's) of Holdings, the Borrower or any of the
Subsidiaries.
(b) (i) Make (or give any notice in respect of) any voluntary or
optional payment or prepayment on or redemption or acquisition for value
(including, without limitation, by way of depositing with the trustee with
respect thereto money or securities before due for the purposes of paying when
due) of any of the Senior Subordinated Notes or any Permitted Senior
Subordinated Debt Securities (except for refinancings thereof with Permitted
Senior Subordinated Debt Securities as permitted by Section 6.01(b)(xiii)); or
(ii) Amend or modify, or permit the amendment or modification of,
any provision of the Senior Subordinated Note Indenture or any other Permitted
Senior Subordinated Debt Securities, or any agreement relating thereto, other
than amendments or
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modifications that are not in any manner materially adverse to the Lenders and
that do not affect the subordination provisions thereof (if any) in a manner
adverse to the Lenders.
SECTION 6.10 INTEREST COVERAGE RATIO. Permit on and after the
Restructuring Date the ratio (the "INTEREST COVERAGE RATIO") on the last day of
any fiscal quarter occurring in any period set forth below, for the four quarter
period ended as of such day of (a) CA EBITDA to (b) Cash Interest Expense to be
less than the ratio set forth below for such period; PROVIDED that to the extent
any Asset Disposition or any Asset Acquisition (or any Similar Transaction) or
any incurrence or repayment of Indebtedness (excluding normal fluctuations of
revolving Indebtedness incurred for working capital purposes) has occurred
during the relevant Test Period, the Interest Coverage Ratio shall be determined
for the respective Test Period on a Pro Forma Basis for such occurrences:
<Table>
<Caption>
Period Ratio
------ -----
April 1, 2004 - December 31, 2005 1.35 to 1.00
January 1, 2006 - December 31, 2006 1.45 to 1.00
January 1, 2007 - December 31, 2007 1.50 to 1.00
Thereafter 1.60 to 1.00
</Table>
SECTION 6.11 TOTAL LEVERAGE RATIO. Permit on and after the
Restructuring Date the Total Leverage Ratio on the last day of any fiscal
quarter occurring in any period set forth below, to be in excess of the ratio
set forth below for such period:
<Table>
<Caption>
Period Ratio
------ -----
April 1, 2004 - December 31, 2005 6.85 to 1.00
January 1, 2006 - December 31, 2006 6.55 to 1.00
January 1, 2007 - December 31, 2007 6.25 to 1.00
Thereafter 5.95 to 1.00
</Table>
SECTION 6.12 BANK LEVERAGE RATIO. Permit the Bank Leverage Ratio on
the last day of any fiscal quarter ending after the Closing Date to be in excess
of 3.50:1.00.
SECTION 6.13 BUSINESS ACTIVITIES. (a) The Borrower shall not, and
shall not permit any Restricted Subsidiary (other than a Securitization
Subsidiary) to, engage in any business other than Permitted Businesses, except
to such extent as would not be material to the Borrower and its Subsidiaries
taken as a whole.
(b) Prior to the Restructuring Date, Bidco shall not engage at any
time in any business or activity other than:
(i) the acquisition and ownership of the Equity Interests of the
Company and any HC Corporation, together with incidental activities
reasonably related thereto;
(ii) the holding of cash in amounts reasonably required to pay for
its own costs and expenses;
(iii) owing and paying legal and auditing fees;
(iv) HC Activities and HC Investments;
(v) the execution and performance of the Security Documents; and
(vi) the servicing of the Bidco Loan.
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ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01 EVENTS OF DEFAULT. In case of the happening of any of the
following events ("EVENTS OF DEFAULT"):
(a) any representation or warranty made by Holdings, the Borrower
or any other Loan Party in any Loan Document, shall prove to have been
false or misleading in any material respect when so made by Holdings, the
Borrower or any other Loan Party;
(b) default shall be made in the payment of any principal or
premium of any Term Loan C when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment
thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any
Term Loan C or in the payment of any fee (other than an amount referred to
in (b) above) due under any Loan Document, when and as the same shall
become due and payable, and such default shall continue unremedied for a
period of 30 days;
(d) default shall be made in the due observance or performance by
Holdings, the Borrower or any of the Subsidiaries of any covenant,
condition or agreement contained in any Loan Document (other than those
specified in paragraphs (b) and (c) above) and such default shall continue
unremedied for a period of 60 days after written notice thereof from the
Administrative Agent to the Borrower;
(e) (i) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or (ii) Holdings,
the Borrower or any of the Subsidiaries shall fail to pay the principal of
any Material Indebtedness at the stated final maturity thereof; PROVIDED
that this clause (e) shall not apply to secured Indebtedness that becomes
due as a result of the voluntary sale or transfer of the property or assets
securing such Indebtedness if such sale or transfer is permitted hereunder
and under the documents providing for such Indebtedness;
(f) there shall have occurred a Change in Control;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of Holdings, the Borrower or any of the Material
Subsidiaries, or of a substantial part of the property or assets of
Holdings, the Borrower or any Material Subsidiary, under Title 11 of the
United States Code, as now constituted or hereafter amended, or any other
federal, state or foreign bankruptcy, insolvency, receivership or similar
law, (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings, the Borrower or any of the
Material Subsidiaries or for a substantial part of the property or assets
of Holdings, the Borrower or any of the
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Material Subsidiaries, (iii) the winding-up or liquidation of Holdings, the
Borrower or any Material Subsidiary (except, in the case of any Material
Subsidiary (other than the Borrower), in a transaction permitted by Section
6.06), (iv) in the case of a Material Subsidiary organized under the laws
of Germany, any of the actions set out in Section 21 of the German
INSOLVENZORDNUNG or to institute insolvency proceedings against any such
Person (EROFFNUNG DES INSOLVENZVERFAHRENS), or (v) in the case of the
Borrower while organized, and any Material Subsidiary to the extent
organized, under the laws of Luxembourg, the commencement of bankruptcy
proceedings (FAILLITE) or the application to be admitted to the regime of
suspension of payments (SURSIS DE PAIEMENTS), controlled management
(GESTION CONTROLEE) or composition with its creditors (CONCORDAT); and such
proceeding or petition shall continue undismissed for 60 days or an order
or decree approving or ordering any of the foregoing shall be entered;
(h) Holdings, the Borrower or any Material Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking relief
under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other federal, state or foreign bankruptcy, insolvency,
receivership or similar law, (ii) seek, or consent to, the institution of,
or fail to contest in a timely and appropriate manner, any proceeding or
the filing of any petition described in paragraph (h) above, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Holdings, the Borrower or
any of the Material Subsidiaries or for a substantial part of the property
or assets of Holdings, the Borrower or any Material Subsidiary, (iv) file
an answer admitting the material allegations of a petition filed against it
in any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) become unable, admit in writing its inability or fail
generally to pay its debts as they become due;
(i) the failure by Holdings, the Borrower or any Material
Subsidiary to pay one or more final judgments (not covered by insurance)
aggregating in excess of $45.0 million, which judgments are not discharged
or effectively waived or stayed for a period of 60 days, or any action
shall be legally taken by a judgment creditor to levy upon any material
assets or properties of Holdings, the Borrower or any Material Subsidiary
to enforce any such judgment;
(j) (i) any Loan Document shall for any reason be asserted in
writing by Holdings, the Borrower or any Material Subsidiary not to be a
legal, valid and binding obligation of any party thereto, (ii) any security
interest purported to be created by any Security Document and to extend to
assets that are not immaterial to Holdings, the Borrower and the
Subsidiaries on a consolidated basis shall cease to be, or shall be
asserted in writing by the Borrower or any other Loan Party not to be, a
valid and perfected security interest (having the priority required by this
Agreement or the relevant Security Document) in the securities, assets or
properties covered thereby, except to the extent that any such loss of
perfection or priority results from the failure of the Collateral Agent or
CA Collateral Agent to maintain possession of certificates actually
delivered to it representing securities pledged under the Collateral
Agreements or to file Uniform Commercial Code continuation statements and
except to the extent that such loss is covered by a lender's title
insurance policy and the Administrative Agent shall be reasonably satisfied
with the credit of such insurer, (iii) the Guarantees pursuant to the
Security Documents by Holdings or the Subsidiary
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Loan Parties of any of the Obligations shall cease to be in full force and
effect (other than in accordance with the terms thereof), or shall be
asserted in writing by Holdings or the Borrower or any Subsidiary Loan
Party not to be in effect or not to be legal, valid and binding obligations
or (iv) the Obligations of the Borrower or the Guarantees thereof by
Holdings, and the Subsidiary Loan Parties pursuant to the Security
Documents shall cease to constitute senior indebtedness under the
subordination provisions of the Senior Subordinated Notes or the respective
such subordination provisions shall be invalidated or otherwise cease, or
shall be asserted in writing by Holdings, the Borrower or any Material
Subsidiary to be invalid or to cease, to be legal, valid and binding
obligations of the parties thereto, enforceable in accordance with their
terms;
then, subject to Sections 7.02 and/or 7.03, and in every such event (other than
an event with respect to the Borrower described in paragraph (g) or (h) above),
and at any time thereafter during the continuance of such event, the
Administrative Agent, at the request of the Required Lenders, shall, by notice
to the Borrower, take any or all of the following actions, at the same or
different times: (i) terminate forthwith the Term Loan C Commitments and (ii)
declare the Term Loans C then outstanding to be forthwith due and payable in
whole or in part, whereupon the principal of the Term Loans C so declared to be
due and payable, together with accrued interest thereon and any unpaid accrued
fees and all other liabilities of the Borrower accrued hereunder and under any
other Loan Document, shall become forthwith due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrower, anything contained herein or in any
other Loan Document to the contrary notwithstanding; and in any event with
respect to the Borrower described in paragraph (g) or (h) above, the Term Loan C
Commitments shall automatically terminate, the principal of the Term Loans C
then outstanding, together with accrued interest thereon and any unpaid accrued
fees and all other liabilities of the Borrower accrued hereunder and under any
other Loan Document, shall automatically become due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrower, anything contained herein or in any
other Loan Document to the contrary notwithstanding.
SECTION 7.02 HOLDINGS' RIGHT TO CURE.
(a) FINANCIAL PERFORMANCE COVENANTS. Notwithstanding anything to
the contrary contained in Section 7.01, in the event that Holdings fails to
comply with the requirements of any Financial Performance Covenant, until the
expiration of the 10th day subsequent to the date the certificate calculating
such Financial Performance Covenant is required to be delivered pursuant to
Section 5.04(c), Holdings shall have the right to issue Permitted Cure
Securities for cash or otherwise receive cash contributions to the capital of
Holdings, and, in each case, to contribute any such cash to the capital of the
Borrower (collectively, the "CURE RIGHT"), and upon the receipt by Borrower of
such cash (the "CURE AMOUNT") pursuant to the exercise by Holdings of such Cure
Right and request to the Administrative Agent to effect such recalculation, such
Financial Performance Covenant shall be recalculated giving effect to the
following PRO FORMA adjustments:
(i) CA EBITDA shall be increased, solely for the purpose of
measuring the Financial Performance Covenants and not for any other purpose
under this Agreement, by an amount equal to the Cure Amount; and
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(ii) if, after giving effect to the foregoing recalculations,
Holdings shall then be in compliance with the requirements of all Financial
Performance Covenants, Holdings shall be deemed to have satisfied the
requirements of the Financial Performance Covenants as of the relevant date
of determination with the same effect as though there had been no failure
to comply therewith at such date, and the applicable breach or default of
the Financial Performance Covenants that had occurred shall be deemed cured
for this purposes of the Agreement.
(b) LIMITATION ON EXERCISE OF CURE RIGHT. Notwithstanding anything
herein to the contrary, (a) in each four-fiscal-quarter period there shall be at
least one fiscal quarter in which the Cure Right is not exercised, (b) in each
eight-fiscal-quarter period, there shall be a period of at least four
consecutive fiscal quarters during which the Cure Right is not exercised, (c)
the Cure Amount shall be no greater than the amount required for purposes of
complying with the Financial Performance Covenants, (d) in each 12 month period,
the maximum aggregate Cure Amount for all exercises shall not exceed EURO 200
million and (e) no Indebtedness repaid with the proceeds of Permitted Cure
Securities shall be deemed repaid for purposes of calculating the ratios
specified in Section 6.10 or 6.11 for the period during which such Permitted
Cure Securities were issued.
SECTION 7.03 CLEAN-UP PERIOD. Notwithstanding anything to the contrary
contained in Section 7.01, during the Clean-up Period, if any matter,
circumstance or event exists or has occurred that would otherwise constitute a
breach of any representation and warranty, or a covenant, contained in any Loan
Document or result in a Default or Event of Default, such matter, circumstance
or event will not constitute a Default or Event of Default (other than any
matter, circumstance or event that (x) would have a Material Adverse Effect, (y)
has been procured by Holdings, the Borrower, Midco, LP GmbH or Bidco or (z) has
not been remedied prior to the expiration of the Clean-up Period), PROVIDED that
(i) such matter, circumstance or event does not constitute an Event of Default
incapable of being cured and (ii) reasonable steps are being taken to cure such
matter, circumstance or event.
ARTICLE VIII
THE AGENTS
SECTION 8.01 APPOINTMENT. (a) In order to expedite the transactions
contemplated by this Agreement, DBNY is hereby appointed to act as
Administrative Agent (with each reference in this Article to Administrative
Agent to include DBNY in its capacity as Collateral Agent). Each of the Lenders
and each assignee of any such Lender hereby irrevocably authorizes the
Administrative Agent to take such actions on behalf of such Lender or assignee
and to exercise such powers as are specifically delegated to the Administrative
Agent by the terms and provisions hereof and of the other Loan Documents,
together with such actions and powers as are reasonably incidental thereto. The
Administrative Agent is hereby expressly authorized by the Lenders, without
hereby limiting any implied authority, (a) to receive on behalf of the Lenders
all payments of principal of and interest on the Term Loan Cs, all other amounts
due to the Lenders hereunder, and promptly to distribute to each Lender its
proper share of each payment so received; (b) to give notice on behalf of each
of the Lenders of any Event of Default specified in this Agreement of which the
Administrative Agent has actual knowledge acquired in connection with the
performance of its duties as Administrative Agent hereunder; and (c) to
distribute to each Lender copies of all notices, financial statements and other
materials delivered by the Borrower pursuant to this Agreement as received by
the Administrative Agent. Without
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limiting the generality of the foregoing (i) the Agents are hereby expressly
authorized to execute any and all documents (including releases) with respect to
the Collateral and the rights of the Lender with respect thereto, as
contemplated by and in accordance with the provisions of this Agreement and the
Security Documents and (ii) in particular, DBNY as Administrative Agent or
Collateral Agent is hereby expressly authorized to execute the Bidco Pledges and
any and all other documents (including releases) with respect to the Collateral
thereunder and the rights of the Pledgees thereunder with respect thereto in the
name of and on behalf of the Lenders as their attorney-in-fact (and each Lender
appoints DBNY as such Lender's attorney-in-fact for such purposes and DBNY is
hereby released from the restrictions imposed by Section 181 of the German Civil
Code (BGB)) as contemplated by and in accordance with the provisions of this
Agreement and the Bidco Pledges. In the event that any party other than the
Lenders and the Agents shall participate in all or any portion of the Collateral
(under the Bidco Pledges) pursuant to the Bidco Pledges, all rights and remedies
in respect of such Collateral shall be controlled by the Administrative Agent
and the Collateral Agent as set forth in the Bidco Pledges. No Person that is
not an Agent shall have any duties or responsibilities under this Agreement.
(b) Neither the Agents nor any of their respective directors,
officers, employees or agents shall be liable as such for any action taken or
omitted by any of them except for its or his own gross negligence or willful
misconduct, or be responsible for any statement, warranty or representation
herein or the contents of any document delivered in connection herewith, or be
required to ascertain or to make any inquiry concerning the performance or
observance by the Borrower or any other Loan Party of any of the terms,
conditions, covenants or agreements contained in any Loan Document. The Agents
shall not be responsible to the Lenders for the due execution, genuineness,
validity, enforceability or effectiveness of this Agreement or any other Loan
Documents or other instruments or agreements. The Agents shall in all cases be
fully protected in acting, or refraining from acting, in accordance with written
instructions signed by the Required Lenders and, except as otherwise
specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the
absence of knowledge to the contrary, be entitled to rely on any instrument or
document believed by it in good faith to be genuine and correct and to have been
signed or sent by the proper person or persons. Neither the Agents nor any of
their respective directors, officers, employees or agents shall have any
responsibility to the Borrower or any other Loan Party or any other party hereto
on account of the failure, delay in performance or breach by, or as a result of
information provided by, any Lender of any of its obligations hereunder or to
any Lender on account of the failure of or delay in performance or breach by any
other Lender or the Borrower or any other Loan Party of any of their respective
obligations hereunder or under any other Loan Document or in connection herewith
or therewith. Each Agent may execute any and all duties hereunder by or through
agents or employees and shall be entitled to rely upon the advice of legal
counsel selected by it with respect to all matters arising hereunder and shall
not be liable for any action taken or suffered in good faith by it in accordance
with the advice of such counsel.
SECTION 8.02 NATURE OF DUTIES. The Lenders hereby acknowledge that no
Agent shall be under any duty to take any discretionary action permitted to be
taken by it pursuant to the provisions of this Agreement unless it shall be
requested in writing to do so by the Required Lenders. The Lenders further
acknowledge and agree that so long as an Agent shall make any determination to
be made by it hereunder or under any other Loan Document in good faith, such
Agent shall have no liability in respect of such determination to any person.
Notwithstanding any provision to the contrary elsewhere in this Agreement, no
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Agent shall have any duties or responsibilities, except those expressly set
forth herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into the Loan Documents or otherwise exist against any Agent. Each
Lender recognizes and agrees that the Global Coordinators and the Joint Lead
Arrangers shall have no duties or responsibilities under this Agreement or any
other Loan Document, or any fiduciary relationship with any Lender, and shall
have no functions, responsibilities, duties, obligations or liabilities for
acting as the Global Coordinator or as the Joint Lead Arrangers hereunder.
SECTION 8.03 RESIGNATION BY THE AGENTS. Subject to the appointment and
acceptance of a successor Administrative Agent, as provided below, the
Administrative Agent may resign at any time by notifying the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor with the consent of the Borrower (not to be unreasonably
withheld or delayed). If no successor shall have been so appointed by the
Required Lenders and approved by the Borrower and shall have accepted such
appointment within 45 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders with the consent of the Borrower (not to be unreasonably withheld or
delayed), appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York and an office in London, England (or a bank having
an Affiliate with such an office) having a combined capital and surplus having a
Dollar Equivalent that is not less than $500.0 million or an Affiliate of any
such bank. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor bank, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After the resignation by the
Administrative Agent hereunder, the provisions of this Article and Section 9.05
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Administrative Agent.
SECTION 8.04 THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. With
respect to the Term Loans C made by it hereunder, the Administrative Agent in
its individual capacity and not as Administrative Agent shall have the same
rights and powers as any other Lender and may exercise the same as though it
were not the Administrative Agent, and the Administrative Agent and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with Holdings, the Borrower or any of the Subsidiaries or other
Affiliates thereof as if it were not the Administrative Agent.
SECTION 8.05 INDEMNIFICATION. Each Lender agrees (a) to reimburse each
Agent, on demand, in the amount of its PRO RATA share (based on its Term Loan C
Commitments hereunder (or if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of its
applicable outstanding Term Loans C)) of any reasonable expenses incurred for
the benefit of the Lenders by such Agent, including counsel fees and
compensation of agents and employees paid for services rendered on behalf of the
Lenders, which shall not have been reimbursed by the Borrower and (b) to
indemnify and hold harmless each Agent and any of its directors, officers,
employees or agents, on demand, in the amount of such PRO RATA share, from and
against any and all liabilities, Taxes, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against it in
its capacity as Agent or any of them in any way relating to or arising out of
this Agreement or any other Loan Document or any action taken or
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omitted by it or any of them under this Agreement or any other Loan Document, to
the extent the same shall not have been reimbursed by the Borrower, PROVIDED
that no Lender shall be liable to an Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of such Agent or any of its directors, officers, employees or agents.
SECTION 8.06 LACK OF RELIANCE ON AGENTS. Each Lender acknowledges that
it has, independently and without reliance upon any Agent and any Lender and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon any Agent,
any other Lender and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement or any other Loan Document,
any related agreement or any document furnished hereunder or thereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 NOTICES. (a) Notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopy, as
follows:
(i) if to any Loan Party, to it, c/o Parent, 29, rue Eugene
Ruppert, L2453 Luxembourg, with a copy to Blackstone Capital Partners
Cayman IV L.P. 345 Park Avenue, New York, New York 10154; and
(ii) if to the Administrative Agent or the Collateral Agent, to
Deutsche Bank AG, New York Branch, 60 Wall Street, New York, New York
10005, attention: Carin Keegan (telecopy: (212) 797-5696) (e-mail:
carin.keegan@db.com), with a copy to White & Case LLP, 1155 Avenue of the
Americas, New York, New York 10036, attention: Sean Geary, Esq. (telecopy:
(212) 354-8113).
(b) Notices and other communications to the Lenders hereunder may
be delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; PROVIDED that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. Each of the Administrative
Agent, the Collateral Agent and the Borrower may, in its discretion, agree to
accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; PROVIDED, FURTHER, that
approval of such procedures may be limited to particular notices or
communications.
(c) All notices and other communications given to any party hereto
in accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service,
sent by telecopy or (to the extent permitted by paragraph (b) above) electronic
means or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01.
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(d) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto.
SECTION 9.02 SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by the Loan Parties herein, in the other
Loan Documents and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement or any other Loan
Document shall be considered to have been relied upon by the Lenders and shall
survive the making by the Lenders of the Term Loans C and the execution and
delivery of the Loan Documents, regardless of any investigation made by such
persons or on their behalf, and shall continue in full force and effect as long
as the principal of or any accrued interest on any Term Loan C or any fee or any
other amount payable under this Agreement or any other Loan Document is
outstanding and unpaid and so long as the Term Loan C Commitments have not been
terminated. Without prejudice to the survival of any other agreements contained
herein, indemnification and reimbursement obligations contained herein
(including pursuant to Sections 2.13, 2.14, 2.15 and 9.05) shall survive the
payment in full of the principal and interest hereunder, and the termination of
the Term Loan C Commitments or this Agreement.
SECTION 9.03 BINDING EFFECT. This Agreement shall become effective
when it shall have been executed by Holdings, the Borrower and the
Administrative Agent and when the Administrative Agent shall have received
copies hereof which, when taken together, bear the signatures of each of the
other parties hereto, and thereafter shall be binding upon and inure to the
benefit of Holdings, the Borrower, the Administrative Agent and each Lender and
their respective permitted successors and assigns.
SECTION 9.04 SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that (i)
other than pursuant to a merger permitted by Section 6.06, the Borrower may not
assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender (and any attempted assignment or
transfer by the Borrower without such consent shall be null and void) and (ii)
no Lender may assign or otherwise transfer its rights or obligations hereunder
except in accordance with this Section. Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, the Related Parties of each of the Agents
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Term Loan C Commitment and the Term Loans C at the time owing to it) with the
prior written consent (such consent not to be unreasonably withheld) of:
(A) the Borrower; PROVIDED that no consent of the Borrower shall
be required for an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund or, if an Event of Default has occurred and is continuing or
during the up to 30 days after the Closing Date 0for the primary
syndication of this Agreement any other assignee (PROVIDED that any
liability of the Borrower to an assignee that is an Approved Fund or
Affiliate of the assigning Lender under Section 2.13, 2.14, 2.15 or
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2.18 shall be limited to the amount, if any, that would have been payable
hereunder by such Borrower in the absence of such assignment); and
(B) the Administrative Agent; PROVIDED that no consent of the
Administrative Agent shall be required for an assignment of a Term Loan C
to a Lender, an Affiliate of a Lender or Approved Fund immediately prior to
giving effect to such assignment.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender, an Affiliate
of a Lender or an Approved Fund or an assignment of the entire remaining
amount of the assigning Lender's Term Loan C Commitment or Term Loans C,
the amount of the commitment or Term Loans C of the assigning Lender
subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than (x) $1.0 million, unless each
of the Borrower and the Administrative Agent otherwise consent; PROVIDED
that no such consent of the Borrower shall be required if an Event of
Default under paragraph (b), (c), (h) or (i) of Section 7.01 has occurred
and is continuing;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement; and
(C) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500; PROVIDED that no such recordation
fee shall be due in connection with an assignment to an existing Lender or
Affiliate of a Lender or an assignment by the Administrative Agent.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Acceptance the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender hereunder shall, to the extent of the interest assigned
by such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.13, 2.14, 2.15 and 9.05). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 9.04 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices a copy of each Assignment
and Acceptance delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Term Loan C Commitment of, and principal
amount of the Term Loans C owing to, each Lender pursuant to the terms hereof
from time to time (the "REGISTER"). The entries in the Register shall be
conclusive, and the Borrower, the Agents and the Lenders may treat each person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
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hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(v) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent
acting for itself and, in any situation wherein the consent of the Borrower is
not required, the Borrower shall accept such Assignment and Acceptance and
record the information contained therein in the Register. No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "LOAN PARTICIPANT") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its Term Loan C
Commitment and the Term Loans C owing to it); PROVIDED that (A) such Lender's
obligations under this Agreement shall remain unchanged, (B) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrower, the Agents and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement or
instrument (oral or written) pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and the other Loan Documents and to approve any
amendment, modification or waiver of any provision of this Agreement and the
other Loan Documents; PROVIDED that (x) such agreement or instrument may provide
that such Lender will not, without the consent of the Loan Participant, agree to
any amendment, modification or waiver described in Section 9.04(a)(i) or clauses
(i), (ii), (iii), (iv), (v) or (vi) of the first proviso to Section 9.08(b) that
affects such Loan Participant and (y) no other agreement (oral or written) with
respect to such participation may exist between such Lender and such Loan
Participant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees
that each Loan Participant shall be entitled to the benefits of Sections 2.13,
2.14 and 2.15 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Loan Participant also shall be entitled to the benefits
of Section 9.06 as though it were a Lender, PROVIDED such Loan Participant
agrees to be subject to Section 2.16(c) as though it were a Lender.
(ii) A Loan Participant shall not be entitled to receive any
greater payment under Section 2.13, 2.14 and 2.15 than the applicable Lender
would have been entitled to receive with respect to the participation sold to
such Loan Participant, unless the sale of the participation to such Loan
Participant is made with the Borrower's prior written consent. A Loan
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.15 to the extent such Loan Participant
fails to comply with Section 2.15(e) as though it were a Lender.
(d) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including (i) any pledge or assignment to secure
obligations to a Federal Reserve Bank and (ii) in the case of any Lender that is
an Approved Fund, any pledge or assignment to any holders of obligations owed,
or securities issued, by such Lender including to any trustee for, or any other
representative of, such holders, and this Section shall not apply to any such
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pledge or assignment of a security interest; PROVIDED that no such pledge or
assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 9.05 EXPENSES; INDEMNITY. (a) The Borrower agrees to pay all
reasonable out-of-pocket expenses (including Other Taxes) incurred by the
Administrative Agent in connection with the preparation of this Agreement and
the other Loan Documents or the administration of this Agreement and by the
Initial Lenders in connection with the syndication of the Term Loan C
Commitments (including the reasonable fees, disbursements and the charges for no
more than one counsel in each jurisdiction where Collateral is located) or in
connection with any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the Term Loan C are incurred) or incurred by
the Agents or any Lender in connection with the enforcement or protection of
their rights in connection with this Agreement and the other Loan Documents, in
connection with the Term Loans C made hereunder, including the reasonable fees,
charges and disbursements of White & Case LLP, counsel for the Administration
Agent and the Joint Lead Arrangers and Baker & McKenzie, special German counsel
to the Administrative Agent and the Joint Lead Arrangers, and, in connection
with any such enforcement or protection, the reasonable fees, charges and
disbursements of any other counsel (including the reasonable allocated costs of
internal counsel if a Lender elects to use internal counsel in lieu of outside
counsel) for the Agents, the Joint Lead Arrangers, or all Lenders (but no more
than one such counsel for all Lenders).
(b) The Borrower agrees to indemnify the Agents, the Joint Lead
Arrangers, each Lender and each of their respective directors, trustees,
officers, employees and agents (each such person being called an "INDEMNITEE")
against, and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees,
charges and disbursements, incurred by or asserted against any Indemnitee
arising out of, in any way connected with, or as a result of (i) the execution
or delivery of this Agreement or any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties hereto
and thereto of their respective obligations thereunder or the consummation of
the Transaction and the other transactions contemplated hereby, (ii) the use of
the proceeds of the Term Loans C or (iii) any claim, litigation, investigation
or proceeding relating to any of the foregoing, whether or not any Indemnitee is
a party thereto, PROVIDED that such indemnity shall not, as to any Indemnitee,
be available to the extent that such losses, claims, damages, liabilities or
related expenses result primarily from the gross negligence or willful
misconduct of such Indemnitee (treating, for this purpose only, any Agent, any
Joint Lead Arranger, any Lender and any of their respective Related Parties as a
single Indemnitee). Subject to and without limiting the generality of the
foregoing sentence, the Borrower agrees to indemnify each Indemnitee against,
and hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel or consultant
fees, charges and disbursements, incurred by or asserted against any Indemnitee
arising out of, in any way connected with, or as a result of (A) any
Environmental Claim related in any way to Holdings, the Borrower or any of their
Subsidiaries, or (B) any actual or alleged presence, Release or threatened
Release of Hazardous Materials at, under, on or from any Mortgaged Property or
any property owned, leased or operated by any predecessor of Holdings, the
Borrower or any of their Subsidiaries, PROVIDED that such indemnity shall not,
as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or any of its
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Related Parties. The provisions of this Section 9.05 shall remain operative and
in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Obligations, the invalidity or unenforceability of any
term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of any Agent or any Lender. All amounts due
under this Section 9.05 shall be payable on written demand therefor accompanied
by reasonable documentation with respect to any reimbursement, indemnification
or other amount requested.
(c) Unless an Event of Default shall have occurred and be
continuing, the Borrower shall be entitled to assume the defense of any action
for which indemnification is sought hereunder with counsel of its choice at its
expense (in which case the Borrower shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by an Indemnitee except as
set forth below); PROVIDED, HOWEVER, that such counsel shall be reasonably
satisfactory to each such Indemnitee. Notwithstanding the Borrower's election to
assume the defense of such action, each Indemnitee shall have the right to
employ separate counsel and to participate in the defense of such action, and
the Borrower shall bear the reasonable fees, costs and expenses of such separate
counsel, if (i) the use of counsel chosen by the Borrower to represent such
Indemnitee would present such counsel with a conflict of interest; (ii) the
actual or potential defendants in, or targets of, any such action include both
the Borrower and such Indemnitee and such Indemnitee shall have reasonably
concluded that there may be legal defenses available to it that are different
from or additional to those available to the Borrower (in which case the
Borrower shall not have the right to assume the defense or such action on behalf
of such Indemnitee); (iii) the Borrower shall not have employed counsel
reasonably satisfactory to such Indemnitee to represent it within a reasonable
time after notice of the institution of such action; or (iv) the Borrower shall
authorize in writing such Indemnitee to employ separate counsel at the
Borrower's expense. The Borrower will not be liable under this Agreement for any
amount paid by an Indemnitee to settle any claims or actions if the settlement
is entered into without the Borrower's consent, which consent may not be
withheld or delayed unless such settlement is unreasonable in light of such
claims or actions against, and defenses available to, such Indemnitee.
(d) Except as expressly provided in Section 9.05(a) with respect
to Other Taxes, which shall not be duplicative with any amounts paid pursuant to
Section 2.15, this Section 9.05 shall not apply to Taxes.
SECTION 9.06 RIGHT OF SET-OFF. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of Holdings, the Borrower or any Subsidiary
against any of and all the obligations of Holdings or the Borrower now or
hereafter existing under this Agreement or any other Loan Document held by such
Lender, irrespective of whether or not such Lender shall have made any demand
under this Agreement or such other Loan Document and although the obligations
may be unmatured. The rights of each Lender under this Section 9.06 are in
addition to other rights and remedies (including other rights of set-off) that
such Lender or such Issuing Bank may have.
SECTION 9.07 APPLICABLE LAW. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN OTHER LOAN
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DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
SECTION 9.08 WAIVERS; AMENDMENT. (a) No failure or delay of the
Administrative Agent or any Lender in exercising any right or power hereunder or
under any Loan Document shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent and the Lenders hereunder and under the
other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this
Agreement or any other Loan Document or consent to any departure by Holdings,
the Borrower or any other Loan Party therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) below, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. No notice or demand on Holdings, the Borrower or any other Loan
Party in any case shall entitle such person to any other or further notice or
demand in similar or other circumstances.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except (x) in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders and (y) in the case of any
other Loan Document, pursuant to an agreement or agreements as provided for
therein; PROVIDED, HOWEVER, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the
final maturity of, or decrease the rate of interest on, any Term Loan C,
without the prior written consent of each Lender directly affected thereby;
PROVIDED that any amendment to the financial covenant definitions in this
Agreement shall not constitute a reduction in the rate of interest for
purposes of this clause (i),
(ii) increase or extend the Term Loan C Commitment of any Lender or
decrease any fees owed any Lender without the prior written consent of such
Lender (it being understood that waivers or modifications of conditions
precedent, covenants, Defaults or Events of Default or of a mandatory
reduction in the aggregate Term Loan C Commitments shall not constitute an
increase of the Term Loan C Commitment of any Lender),
(iii) extend any date on which payment of interest on any Term Loan
C is due, without the prior written consent of each Lender adversely
affected thereby,
(iv) amend or modify the provisions of Section 2.16(c) in a manner
that would by its terms alter the PRO RATA sharing of payments required
thereby, without the prior written consent of each Lender adversely
affected thereby,
(v) amend or modify the provisions of this Section or the
definition of the terms "Required Lenders," or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent
hereunder, without the prior written consent of each Lender adversely
affected thereby (it being understood that, with the consent of the
Required Lenders, additional extensions of credit pursuant to this
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Agreement may be included in the determination of the Required Lenders on
substantially the same basis as the Term Loans C and Term Loan C
Commitments are included on the Closing Date), or
(vi) release all or substantially all the Collateral (other than as
provided for in the respective Security Documents) or release Holdings, the
Borrower, CAC or all or substantially all of the other Subsidiary Loan
Parties from its Guarantee under the Holdings Agreements or the U.S.
Collateral Agreement, as applicable, unless, in the case of a Subsidiary
Loan Party, all or substantially all the Equity Interests of such
Subsidiary Loan Party is sold or otherwise disposed of in a transaction
permitted by this Agreement, without the prior written consent of each
Lender adversely affected thereby;
PROVIDED, FURTHER, that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent without the prior
written consent of the Administrative Agent. Each Lender shall be bound by any
waiver, amendment or modification authorized by this Section 9.08 and any
consent by any Lender pursuant to this Section 9.08 shall bind any assignee of
such Lender.
(c) Without the consent of the Global Coordinator, any Joint Lead
Arranger or any Lender, the Loan Parties and the Administrative Agent and/or
Collateral Agent may (in their respective sole discretion, or shall, to the
extent required by any Loan Document) enter into any amendment, modification or
waiver of any Loan Document, or enter into any new agreement or instrument, to
effect the granting, perfection, protection, expansion or enhancement of any
security interest in any Collateral or additional property to become Collateral
for the benefit of the Lenders, or as required by local law to give effect to,
or protect any security interest for the benefit of the Lenders, in any property
or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended
(or amended and restated) with the written consent of the Required Lenders, the
Administrative Agent, Holdings and the Borrower (a) to add one or more
additional credit facilities to this Agreement and to permit the extensions of
credit from time to time outstanding thereunder and the accrued interest and
fees in respect thereof to share ratably in the benefits of this Agreement and
the other Loan Documents with the Term Loans C and the accrued interest and fees
in respect thereof and (b) to include appropriately the Lenders holding such
credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may
be amended with the written consent of the Administrative Agent, Holdings, the
Borrower and the Lenders providing the relevant Replacement Term Loans C (as
defined below) to permit the refinancing of all outstanding Term Loans
("REFINANCED TERM LOANS") with a replacement "B" term loan tranche hereunder
which shall be Term Loans C 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 Term Loans, (b) the
Applicable Margin for such Replacement Term Loans shall not be higher than the
Applicable Margin for such Refinanced Term Loans, (c) the weighted average life
to maturity of such Replacement Term Loans shall not be shorter than the
weighted average life to maturity of such Refinanced Term Loans at the time of
such refinancing and (d) all other terms applicable to such Replacement Term
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Loans shall be substantially identical to, or less favorable to the Lenders
providing such Replacement Term Loans than, those applicable to such Refinanced
Term Loans, except to the extent necessary to provide for covenants and other
terms applicable to any period after the latest final maturity of the Term Loans
C in effect immediately prior to such refinancing.
SECTION 9.09 INTEREST RATE LIMITATION. Notwithstanding anything herein
to the contrary, if at any time the applicable interest rate, together with all
fees and charges that are treated as interest under applicable law
(collectively, the "CHARGES"), as provided for herein or in any other document
executed in connection herewith, or otherwise contracted for, charged, received,
taken or reserved by any Lender, shall exceed the maximum lawful rate (the
"MAXIMUM RATE") that may be contracted for, charged, taken, received or reserved
by such Lender in accordance with applicable law, the rate of interest payable
hereunder, together with all Charges payable to such Lender, shall be limited to
the Maximum Rate, PROVIDED that such excess amount shall be paid to such Lender
on subsequent payment dates to the extent not exceeding the legal limitation.
SECTION 9.10 ENTIRE AGREEMENT. This Agreement, the other Loan
Documents and the agreements regarding certain fees referred to herein
constitute the entire contract between the parties relative to the subject
matter hereof. Any previous agreement among or representations from the parties
or their Affiliates with respect to the subject matter hereof is superseded by
this Agreement and the other Loan Documents. [Notwithstanding the foregoing, the
Fee Letter shall survive the execution and delivery of this Agreement and remain
in full force and effect.] Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any party other than
the parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.
SECTION 9.11 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12 SEVERABILITY. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 9.13 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which,
when taken
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together, shall constitute but one contract, and shall become effective as
provided in Section 9.03. Delivery of an executed counterpart to this Agreement
by facsimile transmission shall be as effective as delivery of a manually signed
original.
SECTION 9.14 HEADINGS. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15 JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) Each of
Holdings and the Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any Lender may otherwise have to bring any action or proceeding
relating to this Agreement or the other Loan Documents against Holdings, the
Borrower or any Loan Party or their properties in the courts of any
jurisdiction.
(b) Each of Holdings and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the other Loan Documents in any New York State or federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each Loan Party party hereto irrevocably and unconditionally
appoints BCP Crystal US Holdings Corp. with an office on the date hereof at 345
Park Avenue, 31st Floor, New York, NY 10154 and its successors hereunder (the
"PROCESS AGENT"), as its agent to receive on behalf of each such Loan Party and
its property all writs, claims, process, and summonses in any action or
proceeding brought against it in the State of New York. Such service may be made
by mailing or delivering a copy of such process to the respective Loan Party in
care of the Process Agent at the address specified above for the Process Agent,
and such Loan Party irrevocably authorizes and directs the Process Agent to
accept such service on its behalf. Failure by the Process Agent to give notice
to the respective Loan Party, or failure of the respective Loan Party, to
receive notice of such service of process shall not impair or affect the
validity of such service on the Process Agent or any such Loan Party, or of any
judgment based thereon. Each Loan Party hereto covenants and agrees that it
shall take any and all reasonable action, including the execution and filing of
any and all documents, that may be necessary to continue the designation of the
Process Agent above in full force and effect, and to cause the Process Agent to
act as such. Each Loan Party hereto further covenants and agrees to maintain at
all times an agent with offices in New York City to act as its Process Agent.
Nothing herein shall in any way be deemed to limit the ability to serve any such
writs, process or summonses in any other manner permitted by applicable law.
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SECTION 9.16 CONFIDENTIALITY. Each of the Lenders and the
Administrative Agent agrees that it shall maintain in confidence any information
relating to Holdings, the Borrower and the other Loan Parties furnished to it by
or on behalf of Holdings, the Borrower or the other Loan Parties (other than
information that (a) has become generally available to the public other than as
a result of a disclosure by such party, (b) has been independently developed by
such Lender or the Administrative Agent without violating this Section 9.16 or
(c) was available to such Lender or the Administrative Agent from a third party
having, to such person's knowledge, no obligations of confidentiality to
Holdings, the Borrower or any other Loan Party) and shall not reveal the same
other than to its directors, trustees, officers, employees and advisors with a
need to know or to any person that approves or administers the Term Loans C on
behalf of such Lender (so long as each such person shall have been instructed to
keep the same confidential in accordance with this Section 9.16), except: (A) to
the extent necessary to comply with law or any legal process or the requirements
of any Governmental Authority, the National Association of Insurance
Commissioners or of any securities exchange on which securities of the
disclosing party or any Affiliate of the disclosing party are listed or traded,
(B) as part of normal reporting or review procedures to Governmental Authorities
or the National Association of Insurance Commissioners, (C) to its parent
companies, Affiliates or auditors (so long as each such person shall have been
instructed to keep the same confidential in accordance with this Section 9.16),
(D) in order to enforce its rights under any Loan Document in a legal proceeding
and (E) to any prospective assignee of, or prospective participant in, any of
its rights under this Agreement (so long as such person shall have been
instructed to keep the same confidential in accordance with this Section 9.16).
SECTION 9.17 CONVERSION OF CURRENCIES. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto agrees, to
the fullest extent that it may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the first currency could be purchased with such other
currency on the Business Day immediately preceding the day on which final
judgment is given.
(b) The obligations of the Borrower in respect of any sum due to
any party hereto or any holder of the obligations owing hereunder (the
"APPLICABLE CREDITOR") shall, notwithstanding any judgment in a currency (the
"JUDGMENT CURRENCY") other than the currency in which such sum is stated to be
due hereunder (the "AGREEMENT CURRENCY"), be discharged only to the extent that,
on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, the Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrower contained
in this Section 9.17 shall survive the termination of this Agreement and the
payment of all other amounts owing hereunder.
SECTION 9.18 RELEASE OF LIENS AND GUARANTEES. In the event that any
Loan Party conveys, sells, leases, assigns, transfers or otherwise disposes of
all or any portion of any of its assets (including the Equity Interests of any
Subsidiary Loan Party (other than the Borrower)) to a person that is not (and is
not required to become) a Loan Party in a
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transaction not prohibited by Section 6.06 or 6.07, the Administrative Agent and
the Collateral Agent shall promptly (and the Lenders hereby authorize the
Administrative Agent and the Collateral Agent to) take such action and execute
any such documents as may be reasonably requested by Holdings or the Borrower
and at the Borrower's expense to release any Liens created by any Loan Document
in respect of such assets or Equity Interests, and, in the case of a disposition
of the Equity Interests of any Subsidiary Loan Party that is not a Borrower in
such a transaction and as a result of which such Subsidiary Loan Party would
cease to be a Subsidiary, terminate such Subsidiary Loan Party's obligations
under its Guarantee. The Administrative Agent and the Collateral Agent agree to
take such actions as are reasonably requested by the Borrower and at the
Borrower's expense to terminate the Liens and security interests created by the
Bidco Pledge to the extent terminating by its terms at such time, on the
Restructuring Date. In addition, the Administrative Agent and the Collateral
Agent agree to take such actions as are reasonably requested by Holdings or the
Borrower and at the Borrower's expense to terminate the Liens and security
interests created by the Loan Documents when all the Obligations are paid in
full. Any representation, warranty or covenant contained in any Loan Document
relating to any such Equity Interests, asset or subsidiary of Holdings shall no
longer be deemed to be made once such Equity Interests or asset is so conveyed,
sold, leased, assigned, transferred or disposed of.
SECTION 9.19 PARALLEL DEBT. (a) Each of the parties hereto agrees that
each and every obligation of Parent (and any of its successors pursuant to this
Agreement) under any Loan Document shall also be owing in full to the Collateral
Agent (and each of its successors under this Agreement), and that accordingly
the Collateral Agent will have its own independent right to demand performance
by Parent of those obligations. The Collateral Agent agrees with Parent that in
case of any discharge of any such obligation owing to the Collateral Agent or
any Lender by Parent, it will, to the same extent, not make a claim against
Parent under the aforesaid agreement at any time, provided that any such claims
can be made against Parent if such discharge is made by virtue of any set off,
counterclaim or similar defense invoked by Parent vis-a-vis the Collateral
Agent.
(b) Without limiting or affecting the Collateral Agent's rights
against Parent (whether under this paragraph or under any other provision of the
Loan Documents), the Collateral Agent agrees with each other Lender that, except
as set out in the next sentence, it will not exercise its rights under the
aforesaid acknowledgement except with the consent of the relevant Lender.
However, for the avoidance of doubt, nothing in the previous sentence shall in
any way limit the Collateral Agent's right to act in the protection or
preservation of rights under or to enforce any Loan Document as contemplated by
this Agreement and/or the relevant Loan Document (or to do any act reasonably
incidental to the foregoing).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first written above.
BCP CRYSTAL HOLDINGS LTD. 2
By: /s/ Anjan Mukherjee
------------------------------
Name: Anjan Mukherjee
Title: Director
BCP CAYLUX HOLDINGS LUXEMBOURG
S.C.A.
By its Manager, BCP CAYLUX HOLDINGS LTD. 1
By: /s/ Anjan Mukherjee
------------------------------
Name: Anjan Mukherjee
Title: Director
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent and as Lender
By: /s/ Carin M. Keegan
------------------------------
Name: Carin M. Keegan
Title: Vice President
By: /s/ Diane F. Rolfe
------------------------------
Name: Diane F. Rolfe
Title: Vice President
MORGAN STANLEY SENIOR FUNDING, INC.,
By: /s/ Eugene F. Martin
------------------------------
Name: Eugene F. Martin
Title: Vice President
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Schedule 1.01(a)
Part I
Holdings Agreements
Bidco Pledge
Part II
U.S. Collateral Agreement
Parent Agreement (if required)