Execution Copy
BUCKEYE TECHNOLOGIES INC.
amended and restated
credit agreement
Dated as of November 5, 2003
FLEET NATIONAL BANK, Administrative Agent
FLEET SECURITIES, INC., Joint Lead Arranger and Joint Book Manager
CITIGROUP GLOBAL MARKETS INC., Joint Lead Arranger and Joint Book Manager
UBS Securities LLC, Co-Arranger
CITIBANK, N.A. Syndication Agent
UBS, AG STAMFORD BRANCH, Documentation Agent
TABLE OF CONTENTS
Page
1. Definitions; Certain Rules of Construction..................................................1
2. The Credits................................................................................24
2.1. Revolving Credit..................................................................24
2.2. Swingline Credit..................................................................26
2.3. Letters of Credit.................................................................27
2.4. Term Loan.........................................................................30
2.5. Application of Proceeds...........................................................31
3. Interest; LIBOR Pricing Options; Fees......................................................31
3.1. Interest..........................................................................31
3.2. LIBOR Pricing Options.............................................................32
3.3. Interest on Swingline Loan........................................................34
3.4. Computations of Interest and Fees.................................................35
3.5. Commitment Fees...................................................................35
3.6. Letter of Credit Fees.............................................................35
3.7. Changes in Circumstances; Yield Protection........................................35
3.8. Maximum Lawful Interest Rate......................................................38
4. Payment....................................................................................38
4.1. Payment at Maturity...............................................................38
4.2. Scheduled Required Prepayments....................................................38
4.3. Contingent Required Prepayments...................................................39
4.4. Voluntary Prepayments.............................................................40
4.5. Letters of Credit.................................................................41
4.6. Reborrowing; Application of Payments, etc.........................................41
5. Conditions to Extending Credit.............................................................42
5.1. Conditions on Initial Closing Date................................................42
5.2. Conditions to Each Extension of Credit............................................45
6. General Covenants..........................................................................45
6.1. Taxes and Other Charges; Accounts Payable.........................................45
6.2. Conduct of Business, etc..........................................................46
6.3. Insurance.........................................................................47
6.4. Financial Statements and Reports..................................................47
6.5. Certain Financial Tests...........................................................52
6.6. Indebtedness......................................................................54
6.7. Liens.............................................................................56
6.8. Investments and Acquisitions......................................................57
6.9. Distributions.....................................................................59
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6.10. Asset Dispositions and Mergers....................................................60
6.11. Lease Obligations.................................................................61
6.12. Issuance of Stock by Subsidiaries; Subsidiary Distributions, etc..................61
6.13. Voluntary Prepayments of Other Indebtedness.......................................62
6.14. Derivative Contracts..............................................................63
6.15. Negative Pledge Clauses...........................................................63
6.16. ERISA, etc........................................................................63
6.17. Transactions with Affiliates......................................................64
6.18. Environmental Laws................................................................64
6.19. Interpretation of Covenants.......................................................64
7. Representations and Warranties.............................................................64
7.1. Organization and Business.........................................................64
7.2. Financial Statements and Other Information; Material Agreements...................65
7.3. Agreements Relating to Financing Debt, Investments, etc...........................67
7.4. Changes in Condition..............................................................67
7.5. Title to Assets...................................................................68
7.6. Operations in Conformity With Law, etc............................................68
7.7. Litigation........................................................................68
7.8. Authorization and Enforceability..................................................68
7.9. No Legal Obstacle to Agreements...................................................69
7.10. Defaults..........................................................................69
7.11. Licenses, etc.....................................................................69
7.12. Tax Returns.......................................................................70
7.13. Certain Business Representations..................................................70
7.14. Environmental Regulations.........................................................71
7.15. Pension Plans.....................................................................72
7.16. Government Regulation; Margin Stock...............................................72
7.17. Disclosure........................................................................72
7.18. Solvency..........................................................................73
8. Defaults...................................................................................73
8.1. Events of Default.................................................................73
8.2. Certain Actions Following an Event of Default.....................................77
8.3. Annulment of Defaults.............................................................78
8.4. Waivers...........................................................................78
9. Guarantees.................................................................................78
9.1. Guarantees of Credit Obligations..................................................78
9.2. Continuing Obligation.............................................................79
9.3. Waivers with Respect to Credit Obligations........................................79
9.4. Lenders' Power to Waive, etc......................................................81
9.5. Information Regarding the Company, etc............................................81
9.6. Certain Guarantor Representations.................................................82
9.7. Subrogation.......................................................................82
9.8. Subordination.....................................................................82
9.9. Future Subsidiaries; Further Assurances...........................................83
9.10. Contribution Among Guarantors.....................................................83
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10. Expenses; Indemnity........................................................................83
10.1. Expenses..........................................................................83
10.2. General Indemnity.................................................................84
10.3. Indemnity With Respect to Letters of Credit.......................................85
11. Operations; Agent..........................................................................85
11.1. Interests in Loan.................................................................85
11.2. Agent's Authority to Act, etc.....................................................85
11.3. Company to Pay Agent, etc.........................................................85
11.4. Lender Operations for Advances, Letters of Credit, etc............................85
11.5. Sharing of Payments, etc..........................................................87
11.6. Agent's Resignation...............................................................88
11.7. Concerning the Agent..............................................................88
11.8. Rights as a Lender................................................................90
11.9. Independent Credit Decision.......................................................90
11.10. Indemnification...................................................................90
12. Successors and Assigns; Lender Assignments and Participations..............................91
12.1. Assignments by Lenders............................................................91
12.2. Credit Participants...............................................................94
12.3. Special Purpose Funding Vehicles..................................................94
12.4. Replacement of Lender.............................................................95
13. Confidentiality............................................................................96
14. Notices....................................................................................97
15. Amendments, Consents, Waivers, etc.........................................................97
15.1. Lender Consents for Amendments....................................................97
15.2. Course of Dealing; No Implied Waivers.............................................99
16. General Provisions........................................................................100
16.1. Defeasance.......................................................................100
16.2. No Strict Construction...........................................................100
16.3. Certain Obligor Acknowledgments..................................................100
16.4. Venue; Service of Process; Certain Waivers.......................................100
16.5. WAIVER OF JURY TRIAL.............................................................101
16.6. Interpretation; Governing Law; etc...............................................101
17. Status for Other Debt Documents...........................................................102
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EXHIBITS
2.1.4 - Revolving Note
2.2.3 - Swingline Note
2.4.2 - Term Loan Note
5.1.4 - Foreign Subsidiary Subordination Agreement
5.1.5 - Amended and Restated Security Agreement
5.1.6 - Restatement and Assignment Agreement
5.1.9 - Officer's Certificate as to Solvency
5.2.1 - Officer's Certificate
5.2 - Material Developments
6.4. - Sample Monthly Financial Report
6.8.8 - Investments in Foreign Subsidiaries
6.10.1 - Tangible Assets no Longer Useful to the Business
7.1 - Company and its Subsidiaries
7.2.2 - Material Agreements
7.3 - Financing Debt, Certain Investments, etc.
7.7 - Litigation
7.14 - Environmental Matters
7.15 - Multi-employer and Defined Benefit Plans
11.1 - Loan Percentage Interests
12.1.1 - Assignment and Acceptance
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BUCKEYE TECHNOLOGIES INC.
amended AND restated
CREDIT AGREEMENT
This Agreement, dated as of November 5, 2003, is among Buckeye
Technologies Inc., a Delaware corporation (the "Company"), the Subsidiaries of
the Company from time to time party hereto, the Lenders from time to time party
hereto and Fleet National Bank, both in its capacity as a Lender and in its
capacity as administrative agent for itself and the other Lenders. The parties
agree as follows:
Recitals: Pursuant to this Agreement, which amends and restates the
Prior Credit Agreement, the Lenders are extending to the Company a $70,000,000
revolving credit facility, including a $10,000,000 letter of credit facility and
a $15,000,000 swingline credit facility, and a $150,000,000 term loan facility.
All facilities mature on March 15, 2008, subject to the automatic extensions
provided for herein. Each of the Company's material domestic Subsidiaries
guarantees the credit facilities, and the credit facilities will be secured by
(a) substantially all the personal property of the Company and its domestic
Subsidiaries, (b) certain real property of the Company and its domestic
Subsidiaries, (c) the pledge of all the stock of the Company's material domestic
Subsidiaries and (d) the pledge of 66% of the stock of certain first-tier
Foreign Subsidiaries owned directly by the Company and its domestic
Subsidiaries.
1. Definitions; Certain Rules of Construction. Certain capitalized terms
are used in this Agreement and in the other Credit Documents with the specific
meanings defined below in this Section 1. Except as otherwise explicitly
specified to the contrary or unless the context clearly requires otherwise, (a)
the capitalized term "Section" refers to sections of this Agreement, (b) the
capitalized term "Exhibit" refers to exhibits to this Agreement, (c) references
to a particular Section include all subsections thereof, (d) the word
"including" shall be construed as "including without limitation", (e) accounting
terms not otherwise defined herein have the meaning provided under GAAP, (f)
references to a particular statute or regulation include all rules and
regulations thereunder and any successor statute, regulation or rules, in each
case as from time to time in effect, (g) references to a particular Person
include such Person's successors and assigns to the extent not prohibited by
this Agreement and the other Credit Documents and (h) references to "Dollars" or
"$" mean United States Funds. References to "the date hereof" mean the date
first set forth above.
"Accumulated Benefit Obligations" means the actuarial present value of
the accumulated benefit obligations under any Plan, calculated in accordance
with Statement No. 87 of the Financial Accounting Standards Board.
"Affected Lender" is defined in Section 12.4.
"Affiliate" means, with respect to the Company (or any other specified
Person), any other Person directly or indirectly controlling, controlled by or
under direct or indirect common control with the Company (or such other Person),
and shall include (a) any officer or director or general partner of the Company
(or such other Person) and (b) any Person of which the Company (or such other
Person) or any Affiliate (as defined in clause (a) above) of the Company (or
such other Person) shall, directly or indirectly, beneficially own either (i) at
least 10% of the outstanding equity securities having the general power to vote
or (ii) at least 10% of all equity interests.
"Agent" means Fleet in its capacity as administrative agent for the
Lenders hereunder, as well as its successors and assigns in such capacity
pursuant to Section 11.6.
"Agreement" means this Agreement as from time to time amended, modified
and in effect.
"Applicable Margin" means (a) through the date six months after the
Initial Closing Date, the second highest applicable percentage rate set forth in
the table below and (b) on each day thereafter, the percentage in the table
below indicated by the ratio of (a) Consolidated Net Senior Secured Debt on the
last day of the most recently ended fiscal quarter for which financial
statements have been (or are required to have been) furnished by the Company to
the Lenders in accordance with Section 6.4.1 or 6.4.2, as the case may be, to
(b) Consolidated EBITDA for the period of four consecutive fiscal quarters ended
on the last day of such fiscal quarter:
Ratio of Consolidated Net
Senior Securted Debt
Consolidated EBITDA LIBOR Base Rate Commitment
------------------- Applicable Margin Applicable Margin Fee Rate
------------------- ----------------- -----------------
Greater than or equal to 2.0 3.250% 1.750% 0.500%
Greater than or equal to 1.5 3.000% 1.500% 0.500%
but less than 2.0
Greater than or equal to 1.00 2.750% 1.500% 0.450%
but less than 1.5
Less than 1.00 2.500% 1.500% 0.400%
Changes in the Applicable Margin shall occur on the third Banking Day after
quarterly financial statements have been furnished to the Agent in accordance
with Sections 6.4.1 or 6.4.2 from time to time. In the event that the financial
statements required to be delivered pursuant to Section 6.4.1 or 6.4.2, as
applicable, are not delivered when due, then during the period from the third
Banking Day following the date such financial statements were due until the
third Banking Day following the date on which they are actually delivered, the
Applicable Margin shall be the maximum amount set forth in the table above.
"Applicable Rate" means, at any date, the sum of:
(a) (i) with respect to each portion of the Revolving Loan
subject to a LIBOR Pricing Option, the sum of the Applicable Margin
(which may change during the LIBOR Interest Period for such LIBOR
Pricing Option in accordance with the definition of "Applicable
Margin") plus the LIBOR Rate with respect to such LIBOR Pricing
Option;
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(ii) with respect to each other portion of the Revolving Loan,
the sum of the Applicable Margin plus the Base Rate;
(iii) with respect to each portion of Term Loan subject to a
LIBOR Pricing Option, the sum of 2.50% plus the LIBOR Rate with
respect to such LIBOR Pricing Option; and
(iv) with respect to each other portion of Term Loan, the sum
of 1.50% plus the Base Rate.
plus (b) an additional 2% per annum effective on the day the Agent
notifies the Company that the interest rates hereunder are increasing
as a result of the occurrence and continuance of an Event of Default
until the earlier of such time as (i) such Event of Default is no
longer continuing or (ii) such Event of Default is deemed no longer to
exist, in each case pursuant to Section 8.3.
"Approved Public Debt" means (a) the Company 2008 Notes, (b) the
Company 2010 Notes and (c) the Company 2013 Notes.
"Assignee" is defined in Section 12.1.1.
"Assignment and Acceptance" is defined in Section 12.1.1.
"Banking Day" means (a) any day other than Saturday, Sunday or a day on
which banks in Boston, Massachusetts are authorized or required by law or other
governmental action to close and (b) if such term is used with reference to a
LIBOR Pricing Option, any day on which dealings are effected by first-class
banks in the London inter-bank markets in New York, New York and in London,
England.
"Bankruptcy Code" means Title 11 of the United States Code.
---------------
"Bankruptcy Default" means an Event of Default referred to in Section
8.1.10.
"Base Rate" means, on any date the greater of (a) the rate of interest
announced by Fleet at the Boston Office as its prime rate or (b) the sum of 1/2%
plus the Federal Funds Rate. The Base Rate is a reference rate and does not
necessarily represent the lowest or best rate being charged to any customer.
Changes in the rate of interest resulting from changes in the Base Rate shall
take place immediately without notice or demand of any kind.
"Boston Office" means the principal banking office of Fleet in Boston,
Massachusetts.
"By-laws" means all written by-laws, rules, regulations and all other
documents relating to the management, governance or internal regulation of any
Person other than an individual, or interpretive of the Charter of such Person,
all as from time to time in effect.
"Canadian Credit Facility" means the Credit Agreement between Buckeye
Canada, a general partnership organized under the laws of British Columbia, and
The Toronto Dominion Bank, dated as of September 15, 2001, as amended and in
effect as of the date hereof.
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"Capital Expenditures" means, for any period, amounts added or
required to be added to the property, plant and equipment or other fixed assets
account on the Consolidated balance sheet of the Company and its Subsidiaries,
prepared in accordance with GAAP, in respect of (a) the acquisition,
construction, improvement or replacement of land, buildings, machinery,
equipment, leaseholds and any other real or personal property (excluding
replacements of and repairs to any real or personal property made out of the
proceeds of a casualty insurance policy), (b) to the extent not included in
clause (a) above, materials, contract labor and direct labor relating thereto
(excluding amounts properly expensed as repairs and maintenance in accordance
with GAAP) and (c) software development costs to the extent not expensed;
provided, however, that Capital Expenditures shall not include (i) the purchase
price for the acquisition of another Person (or substantially all the assets of
another Person) as a going concern permitted by Section 6.8 or (ii) expenditures
made in accordance with this Agreement with the proceeds of insurance claims or
condemnation awards or the Permitted Reinvestment Reserve Amount.
"Capitalized Lease" means any lease which is required to be capitalized
on the balance sheet of the lessee in accordance with GAAP, including Statement
Nos. 13 and 98 of the Financial Accounting Standards Board.
"Capitalized Lease Obligations" means the amount of the liability
reflecting the aggregate discounted amount of future payments under all
Capitalized Leases calculated in accordance with GAAP, including Statement Nos.
13 and 98 of the Financial Accounting Standards Board.
"Cash Equivalents" means:
(a) negotiable certificates of deposit, time deposits (including sweep
accounts), demand deposits and bankers' acceptances having a maturity
of 12 months or less and issued by any United States financial
institution having capital and surplus and undivided profits
aggregating at least $100,000,000 and rated at least Prime-1 by ▇▇▇▇▇'▇
or A-1 by S & P;
(b) negotiable certificates of deposit, time deposits (including sweep
accounts), demand deposits and bankers' acceptances having a maturity
of nine months or less and issued by any foreign financial institution
having capital and surplus and undivided profits aggregating at least
$200,000,000 in the equivalent amount of United States Funds and rated
at least Prime-1 by ▇▇▇▇▇'▇ or A-1 by S&P or issued by any Lender;
(c) corporate obligations having a maturity of 12 months or less and rated
at least Prime-1 by ▇▇▇▇▇'▇ or A-1 by S&P or issued by any Lender;
(d) any direct obligation of the United States of America or any agency or
instrumentality thereof, or of any state or municipality thereof, (i)
which has a remaining maturity at the time of purchase of not more than
one year or which is subject to a repurchase agreement with any Lender
(or any other financial institution referred to in clause (a) above)
exercisable within one year from the time of purchase and (ii) which,
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in the case of obligations of any state or municipality, is rated at
least Aa by ▇▇▇▇▇'▇ or AA by S & P;
(e) any mutual fund or other pooled investment vehicle rated at least Aa by
▇▇▇▇▇'▇ or AA by S & P which invests principally in obligations
described above; and
(f) any Investment by a Foreign Subsidiary in its local jurisdiction
comparable to the items described above.
"CERCLA" means the federal Comprehensive Environmental Response,
Compensation and Liability Act of 1980.
"Charter" means the articles of organization, certificate of
incorporation, statute, constitution, joint venture agreement, partnership
agreement, trust indenture, limited liability company agreement or other charter
document of any Person other than an individual, each as from time to time in
effect.
"Closing Date" means the Initial Closing Date and each other date on
which any extension of credit is made pursuant to Sections 2.1, 2.2 or 2.3.
"Co-Arranger" means UBS Securities LLC.
"Code" means the federal Internal Revenue Code of 1986.
"Commitment" means, with respect to any Lender, such Lender's
obligations to extend the credits contemplated by Section 2. The original
Commitments are set forth in Exhibit 11.1 and the current Commitments are
recorded from time to time in the Register.
"Commitment Fee Rate" means, at any date, the per annum rate indicated
in the table included in the definition of "Applicable Margin."
"Company" is defined in the recital of parties to this Agreement.
"Company 2008 Notes" means the Company's 9 1/4% Senior Subordinated
Notes due 2008 in the original principal amount of $100,000,000, issued pursuant
to the indenture dated July 2, 1996 between the Company and The Bank of New
York, as trustee, as in effect on the date hereof.
"Company 2010 Notes" means the Company's 8% Senior Subordinated Notes
due 2010 in the original principal amount of $150,000,000, issued pursuant to
the indenture dated June 11, 1998 between the Company and The Bank of New York,
as trustee, as in effect on the date hereof.
"Company 2013 Notes" means the Company's 8 1/2 Senior Unsecured Notes
due 2013 in the original principal amount of $200,000,000, issued pursuant to
the indenture dated September 22, 2003 between the Company and The Bank of New
York, as trustee, as in effect on the date hereof.
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"Computation Covenants" means Sections 6.5, 6.6.7, 6.6.10, 6.6.13,
6.6.15, 6.6.16, 6.6.18, 6.6.19, 6.8.5, 6.8.6, 6.8.7, 6.8.8, 6.9.2, 6.9.5,
6.10.1, 6.10.4, 6.11.2, 6.13.2 and 6.16.
"Consolidated" and "Consolidating", when used with reference to any
term, mean that term as applied to the accounts of the Company (or other
specified Person) and all of its Subsidiaries (or other specified group of
Persons), or such of its Subsidiaries as may be specified, consolidated (or
combined) or consolidating (or combining), as the case may be, in accordance
with GAAP.
"Consolidated EBITDA" means, for any period, the total, without
duplication, of (a) Consolidated Net Income minus (b) to the extent included in
computing such Consolidated Net Income (i) any extraordinary and nonrecurring
gains and (ii) noncash income items, plus (c) all amounts deducted in computing
such Consolidated Net Income in respect of:
(i) depreciation and amortization;
(ii) interest expense;
(iii) income tax expense;
(iv) the write down for impairment purposes of existing
goodwill and noncash charges related to asset impairments;
(v) any extraordinary and nonrecurring losses;
(vi) noncash charges related to asset dispositions
(provided, however, that the amount added in respect of such noncash
charges shall not exceed $1,000,000);
(vii) restructuring costs incurred from October 1, 2002
through June 30, 2004 (provided, however, that the aggregate amount
added in respect of such restructuring costs shall not exceed
$6,000,000); and
(viii) transaction fees and expenses incurred from October 1,
2002 through June 30, 2004 associated with the payment or prepayment
of Indebtedness (provided, however, that the aggregate amount added in
respect of such fees and expenses shall not exceed $5,000,000).
"Consolidated Excess Cash Flow" means, for any period, the total of:
(a) Consolidated EBITDA,
minus (b) Capital Expenditures (i) except to the extent (A)
consisting of Capitalized Lease Obligations or (B) otherwise financed with the
proceeds of Financing Debt and (ii) excluding the reinvestment of Net Asset Sale
Proceeds that are actually paid in cash,
minus (c) taxes based upon or measured by net income that are
actually paid in cash,
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minus (d) Consolidated Fixed Charges (but in no event including
contingent prepayments required by Section 4.3.2 through 4.3.5),
minus (e) voluntary prepayments of the Term Loan, other term
Financing Debt of the Company and its Subsidiaries permitted by this Agreement
and prepayments of the Revolving Loan to the extent necessary to reduce the
Revolving Loan to the level established by a voluntary reduction of the Maximum
Amount of Revolving Credit,
minus (f) Net Asset Sale Proceeds required to be paid to the Agent
as a prepayment of the Loan to the extent that such Net Asset Sale Proceeds
increase Consolidated EBITDA,
minus (g) the amount, if any, by which the sum of (i) changes
in accounts receivable, plus (ii) changes in inventory, plus (iii) changes in
prepaid expenses and other current assets (excluding cash), plus (iv) changes in
accounts payable and other current liabilities is negative during such period,
as reflected on the Consolidated statement of cash flows of the Company and its
Subsidiaries most recently furnished by the Company in accordance with Section
6.4.1,
plus (h) the amount, if any, by which the sum of (i) changes
in accounts receivable, plus (ii) changes in inventory, plus (iii) changes in
prepaid expenses and other current assets (excluding cash), plus (iv) changes in
accounts payable and other current liabilities is positive during such period,
as reflected on the Consolidated statement of cash flows of the Company and its
Subsidiaries most recently furnished by the Company in accordance with Section
6.4.1.
"Consolidated Fixed Charges" means, for any period, the sum of:
(a) Consolidated Interest Expense,
plus (b) the aggregate amount of all mandatory scheduled payments
and prepayments of principal of the Term Loan, but in no event including
contingent prepayments required by Sections 4.3.2 through 4.3.5.
"Consolidated Interest Expense" means, for any period, (a) the
aggregate amount of interest expense, including commitment fees, payments in the
nature of interest under Capitalized Leases and net payments under Interest Rate
Protection Agreements, net of interest income accrued by the Company and its
Subsidiaries in accordance with GAAP on a Consolidated basis, minus (b) to the
extent included in the foregoing clause (a), amortization of Indebtedness
financing costs.
"Consolidated Net Income" means, for any period, the net income (or
loss) of the Company and its Subsidiaries, determined in accordance with GAAP on
a Consolidated basis; provided, however, that Consolidated Net Income shall not
include:
(a) the income (or loss) of any Person accrued prior to the
date such Person becomes a Subsidiary or is merged into or
consolidated with the Company or any of its Subsidiaries; provided,
however, that (i) in the event of an acquisition permitted by Section
6.8, for purposes only of calculating the Applicable Rate, the
Commitment Fee Rate and the leverage ratio in Section 6.5.1 (but not
for any other Section), the net income (or loss) of any acquired
domestic Person shall be included in Consolidated Net Income for up to
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four fiscal quarters prior to the acquisition date, adjusted on a pro
forma basis for specific and quantified reductions in expenses
(excluding projected changes in business conditions, such as
projected yield improvement or increased sales) resulting from the
acquisition as agreed between the Company and the Agent and (ii) in the
event of a disposition permitted by Section 6.10, for purposes only of
calculating the Applicable Rate, the Commitment Fee Rate and the
leverage ratio in Section 6.5.1 (but not for any other Section), the
net income or loss of any domestic Person so disposed of shall be
excluded from Consolidated Net Income for up to four fiscal quarters
prior to the disposition date.
(b) the income (or loss) of any Person (other than a
Subsidiary) in which the Company or any of its Subsidiaries has an
ownership interest; provided, however, that (i) Consolidated Net Income
shall include amounts in respect of the income of such Person when
actually received in cash by the Company or such Subsidiary in the form
of dividends or similar Distributions and (ii) Consolidated Net Income
shall be reduced by the aggregate amount of all Investments, regardless
of the form thereof, made by the Company or any of its Subsidiaries in
such Person for the purpose of funding any deficit or loss of such
Person;
(c) all amounts included in computing such net income (or
loss) in respect of the write-up of any asset or the retirement of any
Indebtedness or equity at less than face value after September 30,
2003;
(d) the income of any Subsidiary to the extent (i) the
payment of such income in the form of a Distribution or repayment of
Indebtedness to the Company or a Wholly Owned Subsidiary is not
permitted, whether on account of any Charter or By-law restriction, any
agreement, instrument, deed or lease or any law, statute, judgment,
decree or governmental order, rule or regulation applicable to such
Subsidiary or (ii) the income of such Subsidiary does not exceed the
tax liability incurred by the Company and its Subsidiaries resulting
from the repatriation of foreign earnings under the Code caused by the
payment of such income in the form of a Distribution or repayment of
Indebtedness to the Company or a Wholly Owned Subsidiary; and
(e) any after-tax gains or losses attributable to returned
surplus assets of any Plan.
"Consolidated Net Senior Secured Debt" means, at any date, the amount
by which (a) Consolidated Total Net Debt, exceeds (b) the sum of (i) the
principal amount of Financing Debt contractually subordinated to the Credit
Obligations in a manner permitted hereby or otherwise satisfactory to the
Required Lenders, and (ii) to the extent not included in the foregoing clause
(i), the principal amount of unsecured Financing Debt.
"Consolidated Total Debt" means, at any date, all Financing Debt of
the Company and its Subsidiaries on a Consolidated basis.
"Consolidated Total Net Debt" means, at any date, Consolidated Total
Debt minus cash and Cash Equivalents (other than cash and Cash Equivalents owned
by Foreign Subsidiaries and items described in clauses (b) and (f) of the
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definition of "Cash Equivalents") to the extent such cash and Cash Equivalents
exceed $3,000,000.
"Credit Documents" means:
(a) this Agreement, the Notes, the Security Agreement, each
other agreement granting or facilitating the grant of Credit Security,
each Letter of Credit, each draft presented or accepted under a Letter
of Credit, the Foreign Subsidiary Subordination Agreement, the
documents evidencing, relating to, in respect of or in connection with
each Hedge Agreement provided by a Lender (or an Affiliate of a Lender)
to the Company or any of its Subsidiaries, each as from time to time
in effect;
(b) all financial statements, reports, notices or
certificates delivered to the Agent or any of the Lenders by the
Company, any of its Subsidiaries or any other Obligor in connection
herewith or therewith; and
(c) any other present or future agreement or instrument from
time to time entered into among the Company, any of its Subsidiaries or
any other Obligor, on one hand, and the Agent, any Letter of Credit
Issuer or all the Lenders, on the other hand, relating to, amending or
modifying this Agreement or any other Credit Document referred to above
or which is stated to be a Credit Document, each as from time to time
in effect.
"Credit Obligations" means all present and future liabilities,
obligations and Indebtedness of the Company, any of its Subsidiaries or any
other Obligor owing to the Agent or any Lender under or in connection with this
Agreement or any other Credit Document, including obligations in respect of
principal, interest, reimbursement obligations under Letters of Credit and Hedge
Agreements provided to the Company, any of its Subsidiaries or any other Obligor
by a Lender (or an Affiliate of a Lender), commitment fees, Letter of Credit
fees, amounts provided for in Sections 3.2.4, 3.7 and 10 and other fees,
charges, indemnities and expenses from time to time owing hereunder or under any
other Credit Document (whether accruing before or after a Bankruptcy Default and
regardless of whether allowed as a claim in bankruptcy or similar proceedings).
"Credit Participant" is defined in Section 12.2.
"Credit Security" means all assets now or from time to time hereafter
subjected to a security interest, mortgage or charge (or intended or required so
to be subjected pursuant to the Security Agreement or any other Credit Document)
to secure the payment or performance of any of the Credit Obligations on a pari
passu, ratable basis among the holders of the Credit Obligations, including the
assets described in section 2.1 of the Security Agreement.
"Currency Exchange Agreement" means any currency swap, foreign exchange
contract or similar arrangement providing for protection against fluctuations in
currency exchange rates, either generally or under specific contingencies.
"Default" means any Event of Default and any event or condition which
with the passage of time or giving of notice, or both, would become an Event of
Default and the filing against the Company, any of its Subsidiaries or any other
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Obligor of a petition commencing an involuntary case under the Bankruptcy Code.
"Delinquency Period" is defined in Section 11.4.4.
"Delinquent Lender" is defined in Section 11.4.4.
"Delinquent Payment" is defined in Section 11.4.4.
"Distribution" means, with respect to the Company (or other specified
Person) or any of its Subsidiaries:
(a) the declaration or payment of any dividend or
distribution, including dividends payable in shares of capital stock of
or other equity interests in the Company (or such specified Person), on
or in respect of any shares of any class of capital stock of or other
equity interests in the Company (or such specified Person) or any of
its Subsidiaries;
(b) the purchase, redemption or other retirement of any
shares of any class of capital stock of or other equity interest in the
Company (or such specified Person) or any of its Subsidiaries of
options, warrants or other rights for the purchase of such shares,
directly, indirectly through a Subsidiary or corporate parent or
otherwise;
(c) any other distribution on or in respect of any shares
of any class of capital stock of or equity or other beneficial interest
in the Company (or such specified Person) or any of its Subsidiaries;
(d) any payment of principal or interest or fees with
respect to, or any purchase, redemption or defeasance of, any
Indebtedness of the Company (or such specified Person) or any of its
Subsidiaries which by its terms or the terms of any agreement is
subordinated to the payment of the Credit Obligations; and
(e) any payment, loan or advance by the Company (or such
specified Person) to, or any other Investment by the Company (or such
specified Person) in, the holder of any shares of any class of capital
stock of or equity interest in the Company (or such specified Person)
or any of its Subsidiaries, or any Affiliate of such holder;
provided, however, that the term "Distribution" shall not include (i) dividends
payable in, or conversion of securities into, nonredeemable common stock of or
other similar equity interests in the Company (or such specified Person) or (ii)
the issuance of PIK Interest or (iii) payments in the ordinary course of
business in respect of (A) reasonable compensation paid to employees, officers
and directors, (B) advances to employees for travel expenses, drawing accounts
and similar expenditures, (C) rent paid to, or accounts payable for services
rendered or goods sold by, non-Affiliates that own capital stock of or other
equity interests in the Company (or such specified Person) or (D) licensing fees
and management fees paid by the Company and its Subsidiaries to each other.
"Documentation Agent" means UBS AG Stamford Branch.
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"ECF Prepayment Percentage" means, with respect to any period, the
percentage in the table below indicated by the ratio of (a) Consolidated Total
Net Debt on the last day of the most recently ended fiscal quarter for which
financial statements have been (or are required to have been) furnished by the
Company to the Lenders in accordance with Section 6.4.1 prior to the first day
of such period to (b) Consolidated EBITDA for the period of four consecutive
fiscal quarters ended on the last day of such fiscal quarter:
Ratio of Consolidated Total Net Debt to
Consolidated EBITDA ECF Prepayment Percentage
------------------- -------------------------
Greater than or equal to 4.50 50%
Greater than or equal to 3.50 but less than 4.50 25%
Less than 3.50 0%
"Eligible Assignee" means (a) a Lender, (b) an Affiliate of a Lender,
(c) a Related Fund and (d) subject to the prior approval of the Agent and, so
long as no Event of Default shall have occurred and be continuing, the Company,
such approval by the Agent and the Company not to be unreasonably withheld:
(i) a commercial bank organized under the laws of the United
States of America, or any state thereof, and having total assets in
excess of $500,000,000;
(ii) a savings and loan association or savings bank organized
under the laws of the United States of America, or any state thereof,
and having total assets in excess of $500,000,000;
(iii) a commercial bank organized under the laws of any other
country that is a member of the Organization for Economic Cooperation
and Development or has concluded special lending arrangements with the
International Monetary Fund associated with its General Arrangements to
Borrow or of the Cayman Islands, or a political subdivision of any such
country, and having total assets in excess of $500,000,000, so long as
such bank is acting through a branch or agency located in the United
States of America;
(iv) the central bank of any country that is a member of the
Organization for Economic Cooperation and Development; and
(v) a finance company, insurance company or other financial
institution or fund (whether a corporation, partnership, trust or other
entity) that is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business and (together
with Related Funds) having total assets in excess of $500,000,000;
provided, however, that (A) no Person shall qualify as an Eligible Assignee with
respect to assignments of obligations as a Letters of Credit Issuer unless such
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Person qualifies under clauses (d)(i) or (d)(iii) above and (B) no Obligor or
Affiliate of an Obligor shall qualify as an Eligible Assignee under any
circumstances.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules and regulations (including applicable
consent decrees and administrative orders and the Fenholloway River Agreement)
relating to public health and safety and protection of the environment,
including the federal Occupational Health and Safety Act.
"Equity Proceeds Prepayment Percentage" means, with respect to any
period, the percentage in the table below indicated by the ratio of (a)
Consolidated Total Net Debt on the last day of the most recently ended fiscal
quarter for which financial statements have been (or are required to have been)
furnished by the Company to the Lenders in accordance with Section 6.4.1 or
6.4.2, as the case may be, prior to the first day of such period to (b)
Consolidated EBITDA for the period of four consecutive fiscal quarters ended on
the last day of such fiscal quarter:
Ratio of Consolidated Total Net Debt
to Consolidated EBITDA Equity Proceeds Prepayment Percentage
Greater than or equal to 4.50 50%
Greater than or equal to 3.50 but less than 4.50 25%
Less than 3.5 0%
"Equivalent Amount of United States Funds" means, as of any date of
calculation with respect to a particular amount of foreign currency, an amount
of United States Funds equal to such amount of foreign currency, computed at the
foreign exchange rate published for such date in the Wall Street Journal.
"ERISA" means the federal Employee Retirement Income Security Act of
1974.
"ERISA Group Person" means the Company, any Subsidiary of the Company
and any Person which is a member of the controlled group or under common control
with the Company or any Subsidiary within the meaning of section 414 of the Code
or section 4001(a)(14) of ERISA.
"Event of Default" is defined in Section 8.1.
"Exchange Act" means the federal Securities Exchange Act of 1934.
"Federal Funds Rate" means, for any day, the rate equal to the weighted
average (rounded upward to the nearest 1/8%) of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by
federal funds brokers, (a) as such weighted average is published for such day
(or, if such day is not a Banking Day, for the immediately preceding Banking
Day) by the Federal Reserve Bank of New York or (b) if such rate is not so
published for such Banking Day, as determined by the Agent using any reasonable
-12-
means of determination. Each determination by the Agent of the Federal Funds
Rate shall, in the absence of manifest error, be conclusive.
"Fenholloway River Agreement" means the agreement between the State of
Florida Department of Environmental Protection and Buckeye Florida Limited
Partnership dated as of March 29, 1995.
"Final Revolving Maturity Date" means March 15, 2008; provided,
however, that if the Company 2008 Notes are refinanced with Financing Debt
having a maturity date after October 15, 2010 or are otherwise repaid in full,
"Final Revolving Maturity Date" shall mean September 15, 2008.
"Final Term Loan Maturity Date" means March 15, 2008; provided,
however, that if the Company 2008 Notes are refinanced with Financing Debt
having a maturity date after October 15, 2010 or are otherwise repaid in full,
"Final Term Loan Maturity Date" shall mean April 15, 2010.
"Financial Officer" of the Company (or other specified Person) means
its chief executive officer, chief financial officer, chief operating officer,
chairman, president, treasurer or any of its vice presidents whose primary
responsibility is for its financial affairs, all of whose incumbency and
signatures have been certified to the Agent by the secretary or other
appropriate attesting officer of the Company (or such specified Person).
"Financing Debt" means each of the items described in clauses (a)
through (f) of the definition of the term "Indebtedness" and, without
duplication, any Guarantee of such items.
"Fleet" means Fleet National Bank.
"Foreign Subsidiary" means each Subsidiary that is organized under the
laws of and conducting its business primarily in a jurisdiction outside of the
United States of America and that is not domesticated or dually incorporated
under the laws of the United States of America or any state thereof.
"Foreign Subsidiary Subordination Agreement" is defined in Section
5.1.4.
"Funding Liability" means (a) any deposit which was used (or deemed by
Section 3.2.6 to have been used) to fund any portion of the Revolving Loan
subject to a LIBOR Pricing Option, and (b) any portion of the Revolving Loan
subject to a LIBOR Pricing Option funded (or deemed by Section 3.2.6 to have
been funded) with the proceeds of any such deposit.
"GAAP" means generally accepted accounting principles as from time to
time in effect, including the statements and interpretations of the United
States Financial Accounting Standards Board; provided, however, that for
purposes of compliance with Section 6 (other than Section 6.4) and the related
definitions, (a) "GAAP" means such principles as in effect on June 30, 2003 as
applied by the Company and its Subsidiaries in the preparation of the audited
financial statements referred to in Section 7.2.1(a), and consistently followed,
without giving effect to any subsequent changes thereto and (b) in the event of
a change in generally accepted accounting principles after such date, either the
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Company or the Required Lenders may request a change in the definition of
"GAAP", in which case the parties hereto shall negotiate in good faith with
respect to an amendment of this Agreement implementing such change.
"Granting Lender" is defined in Section 12.3.
"Guarantee" means, with respect to the Company (or other specified
Person):
(a) any guarantee by the Company (or such specified Person),
of the payment or performance of, or any contingent obligation by the
Company (or such specified Person), in respect of, any Indebtedness or
other obligation of any primary obligor;
(b) any other arrangement whereby credit is extended to a
primary obligor on the basis of any promise or undertaking of the
Company (or such specified Person), including any binding "comfort
letter" or "keep well agreement" written by the Company (or such
specified Person), to a creditor or prospective creditor of such
primary obligor, to (i) pay the Indebtedness of such primary obligor,
(ii) purchase an obligation owed by such primary obligor, (iii) pay for
the purchase or lease of assets or services regardless of the actual
delivery thereof or (iv) maintain the capital, working capital,
solvency or general financial condition of such primary obligor;
(c) any liability of the Company (or such specified
Person), as a general partner of a partnership in respect of
Indebtedness or other obligations of such partnership;
(d) any liability of the Company (or such specified Person)
as a joint venturer of a joint venture in respect of Indebtedness or
other obligations of such joint venture;
(e) any liability of the Company (or such specified Person)
with respect to the tax liability of others as a member of a group
(other than a group consisting solely of the Company and its
Subsidiaries) that is consolidated for tax purposes; and
(f) reimbursement obligations, whether contingent or
matured, of the Company (or such specified Person) with respect to
letters of credit, bankers acceptances, surety bonds, other financial
guarantees and Interest Rate Protection Agreements (without duplication
of other Indebtedness supported or guaranteed thereby),
whether or not any of the foregoing are reflected on the balance sheet of the
Company (or such specified Person) or in a footnote thereto; provided, however,
that the term "Guarantee" shall not include endorsements for collection or
deposit in the ordinary course of business. The amount of any Guarantee and the
amount of Indebtedness resulting from such Guarantee shall be the maximum amount
that the guarantor may become obligated to pay in respect of the obligations
(whether or not such obligations are outstanding at the time of computation).
"Guarantor" means each Subsidiary listed on the signature page hereto
or which subsequently becomes party to this Agreement as a Guarantor; provided,
however, that in no event shall a Foreign Subsidiary constitute a Guarantor.
-14-
"Hazardous Material" means any pollutant, toxic or hazardous material
or waste, including any "hazardous substance" or "pollutant" or "contaminant" as
defined in section 101(14) of CERCLA or any other Environmental Law or regulated
as toxic or hazardous under RCRA or any other Environmental Law.
"Hedge Agreement" means, collectively, Currency Exchange Agreements and
Interest Rate Protection Agreements.
"Immaterial Subsidiary" means any Subsidiary of the Company whose
assets (at fair market value) do not exceed $500,000 and in which the net
Investment of the Company and its other Subsidiaries is less than $500,000.
"Indebtedness" means all obligations, contingent or otherwise, which in
accordance with GAAP are required to be classified upon the balance sheet of the
Company (or other specified Person) as liabilities, but in any event including
(without duplication):
(a) indebtedness for borrowed money;
(b) indebtedness evidenced by notes, debentures or similar
instruments;
(c) Capitalized Lease Obligations and Synthetic Lease
Obligations;
(d) the deferred purchase price of assets, services or
securities, including related noncompetition, consulting and stock
repurchase obligations (other than ordinary trade accounts payable
within six months after the incurrence thereof in the ordinary course
of business), and any long-term contractual obligations for the payment
of money other than, in the case of the deferred purchase price of
services and any long-term contractual obligations for the payment of
money, for products or services to be provided in the future in the
ordinary course of business;
(e) mandatory redemption, repurchase or dividend rights on
capital stock (or other equity), including provisions that require the
exchange of such capital stock (or other equity) for Indebtedness from
the issuer;
(f) reimbursement obligations, whether contingent or
matured, with respect to letters of credit, bankers acceptances, surety
bonds, other financial guarantees and Hedge Agreements (without
duplication of other Indebtedness supported or guaranteed thereby);
(g) pension liabilities unfunded for more than 270 days
after the year in which accrued;
(h) liabilities secured by any Lien existing on property
owned or acquired by the Company (or such specified Person), whether or
not the liability secured thereby shall have been assumed; and
(i) all Guarantees in respect of Indebtedness of others.
"Indemnified Party" is defined in Section 10.2.
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"Initial Closing Date" means November 5, 2003 or such other date on or
prior to November 7, 2003 agreed to by the Company and the Agent as the first
Closing Date hereunder.
"Interest Rate Protection Agreement" means any interest rate swap,
interest rate cap, interest rate hedge or other contractual arrangement that
converts variable interest rates into fixed interest rates, fixed interest rates
into variable interest rates or other similar arrangements.
"Investment" means, with respect to the Company (or other specified
Person):
(a) any share of capital stock, partnership or other equity
interest, evidence of Indebtedness or other security issued to the
Company (or other specified Person) by any other Person;
(b) any loan, advance or extension of credit by the Company
(or other specified Person) to, or contribution by the Company (or
other specified Person) to the capital of, any other Person;
(c) any Guarantee by the Company (or other specified
Person) of the Indebtedness of any other Person;
(d) any acquisition by the Company (or other specified
Person) of all or a material part of the business of any other Person
or the assets comprising such business or part thereof, excluding
purchases of inventory and other items in the ordinary course of
business; and
(e) any other similar investment.
The investments described in the foregoing clauses (a) through (e)
shall be included in the term "Investment" whether they are made or acquired by
purchase, exchange, issuance of stock or other securities, merger,
reorganization or any other method; provided, however, that the term
"Investment" shall not include (i) current trade and customer accounts
receivable for property leased, goods furnished or services rendered in the
ordinary course of business and payable in accordance with customary trade
terms, (ii) deposits, advances and prepayments to suppliers for property leased,
goods furnished and services rendered in the ordinary course of business, (iii)
advances to employees for travel expenses, drawing accounts and similar
expenditures, (iv) stock or other securities acquired in connection with the
satisfaction or enforcement of Indebtedness or claims due to the Company (or
such specified Person) or as security for any such Indebtedness or claim or (v)
demand deposits in banks or similar financial institutions.
In determining the amount of outstanding Investments:
(A) the amount of any Investment shall be the cost thereof
minus any returns of capital in cash on such Investment (determined in
accordance with GAAP without regard to amounts realized as income on
such Investment);
(B) the amount of any Investment in respect of a purchase
described in clause (d) above shall be increased by the amount of any
Indebtedness assumed in connection with such purchase or secured by any
-16-
asset acquired in such purchase (whether or not any Indebtedness is
assumed) or for which any Person that becomes a Subsidiary is liable on
the date on which the securities of such Person are acquired and shall
be reduced by the amount of any reductions in such Indebtedness; and
(C) no Investment shall be increased as the result of an
increase in the undistributed retained earnings of the Person in which
the Investment was made or decreased as a result of an equity interest
in the losses of such Person.
"ISP" is defined in Section 2.3.6.
"Joint Lead Arrangers" means Fleet Securities, Inc., a Delaware
corporation, and Citigroup Global Markets Inc., a New York corporation.
"Legal Requirement" means any requirement imposed upon any of the
Lenders or the Company and its Subsidiaries by any law, statute, rule,
regulation, directive, order, decree, guideline (or any interpretation thereof
by courts or of administrative bodies) of the United States of America, or any
jurisdiction in which any LIBOR Office is located or any state or political
subdivision of any of the foregoing, or by any board, governmental or
administrative agency, central bank or monetary authority of the United States
of America, any jurisdiction in which any LIBOR Office is located or any
political subdivision of any of the foregoing, in each case having the force of
law; provided, however, that any such requirement imposed on any of the Lenders
not having the force of law shall be deemed to be a Legal Requirement for
purposes of Section 3 if such Lender reasonably believes that compliance
therewith is in the best interest of such Lender.
"Lender" means each of the Persons listed as lenders on the signature
page hereto, including Fleet in its capacity as a Lender and such other Persons
who may from time to time own a Percentage Interest in the Credit Obligations,
but the term "Lender" shall not include any Credit Participant in such capacity.
"Lending Officer" means such individuals whom the Agent or the
Swingline Lender, as the case may be, may designate by notice to the Company
from time to time as an officer who may receive telephone requests for
borrowings under Sections 2.1.3 or 2.2.2.
"Letters of Credit" is defined in Section 2.3.1.
"Letter of Credit Exposure" means, at any date, the sum of (a) the
aggregate face amount of all drafts that may then or thereafter be presented by
beneficiaries under all Letters of Credit then outstanding, plus (b) the
aggregate face amount of all drafts that the Letter of Credit Issuer has
previously accepted under Letters of Credit but has not paid.
"Letter of Credit Issuer" means, for any Letter of Credit, Fleet, or in
the event Fleet does not for any reason issue a requested Letter of Credit,
another Revolving Loan Lender designated by the Agent to issue such Letter of
Credit in accordance with Section 2.3.
"LIBOR Basic Rate" means, for any LIBOR Interest Period:
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(a) the rate of interest at which U.S. dollar deposits are
offered in the London interbank market in an amount approximately equal
to the portion of the Loan subject to the related LIBOR Pricing Option
for a period of time equal to such LIBOR Interest Period that appears
on the Telerate Page 3750 as of 11:00 a.m. London time two Business
Days prior to the Business Day on which such LIBOR Interest Period
begins or
(b) if no such rate appears on the Telerate Page 3750, the
rate of interest determined by the Agent to be the average of up to
four interest rates per annum at which U.S. Dollar deposits are offered
in the London interbank market in an amount approximately equal to the
portion of the Loan subject to the related LIBOR Pricing Option, for a
period of time equal to such LIBOR Interest Period which appear on the
▇▇▇▇▇▇'▇ Screen LIBO Page as of 11:00 a.m. London time two Business
Days prior to the Business Day on which such LIBOR Interest Period
begins if at least two such offered rates so appear on the ▇▇▇▇▇▇'▇
Screen LIBO Page or
(c) if no such rate appears on the Telerate Page 3750 and
fewer than two offered rates appear on the ▇▇▇▇▇▇'▇ Screen LIBO Page,
the rate of interest at which deposits in an amount approximately equal
to the portion of the Loan as to which the related LIBOR Pricing Option
has been elected and which have a term corresponding to such LIBOR
Interest Period are offered to the Agent by first class banks in the
London inter-bank market for delivery in immediately available funds at
a LIBOR Office on the first day of such LIBOR Interest Period as
determined by the Agent at approximately 10:00 a.m. (Boston time) two
Banking Days prior to the date upon which such LIBOR Interest Period is
to commence (which determination by such Reference Lender shall, in the
absence of manifest error, be conclusive).
"LIBOR Interest Period" means any period, selected as provided in
Section 3.2.1, of one, two, three or six months, commencing on any Banking Day
and ending on the corresponding date in the subsequent calendar month so
indicated (or, if such subsequent calendar month has no corresponding date, on
the last day of such subsequent calendar month); provided, however, that subject
to Section 3.2.3, if any LIBOR Interest Period so selected would otherwise begin
or end on a date which is not a Banking Day, such LIBOR Interest Period shall
instead begin or end, as the case may be, on the immediately preceding or
succeeding Banking Day as determined by the Agent in accordance with the then
current banking practice in the London inter-bank market with respect to
deposits at the applicable LIBOR Office, which determination by the Agent shall,
in the absence of manifest error, be conclusive.
"LIBOR Office" means such office or international banking facility of
any Lender as the Lender may from time to time select.
"LIBOR Pricing Options" means the options granted pursuant to Section
3.2.1 to have the interest on any portion of the Loan computed on the basis of a
LIBOR Rate.
"LIBOR Rate" for any LIBOR Interest Period means the rate, rounded
upward to the nearest 1/100%, obtained by dividing (a) the LIBOR Basic Rate for
such LIBOR Interest Period by (b) an amount equal to 1 minus the LIBOR Reserve
Rate; provided, however, that if at any time during such LIBOR Interest Period
the LIBOR Reserve Rate applicable to any outstanding LIBOR Pricing Option
-18-
changes, the LIBOR Rate for such LIBOR Interest Period shall automatically be
adjusted to reflect such change, effective as of the date of such change to the
extent required by the Legal Requirement implementing the change in the LIBOR
Reserve Rate.
"LIBOR Reserve Rate" means the stated maximum rate (expressed as a
decimal) of all reserves (including any basic, supplemental, marginal or
emergency reserve or any reserve asset), if any, as from time to time in effect,
required by any Legal Requirement to be maintained by any Lender against (a)
"Eurocurrency liabilities" as specified in Regulation D of the Board of
Governors of the Federal Reserve System applicable to LIBOR Pricing Options or
(b) any other category of liabilities that includes deposits by reference to
which the interest rate on portions of the Loan subject to LIBOR Pricing Options
is determined.
"Lien" means, with respect to the Company (or any other specified
Person):
(a) any lien, encumbrance, mortgage, pledge, charge or
security interest of any kind upon any property or assets of the
Company (or such specified Person), or upon the income or profits
therefrom;
(b) the acquisition of, or the agreement to acquire, any
property or asset upon conditional sale or subject to any other title
retention agreement, device or arrangement (including a Capitalized
Lease);
(c) the sale, assignment, pledge or transfer for security
of any accounts, general intangibles or chattel paper of the Company
(or such specified Person), with recourse; and
(d) in the case of securities, any purchase option, call
or similar purchase right of a third party.
"Loan" means the Revolving Loan, the Swing Line Loan and the Term
Loan, collectively.
"Loan Accounts" means each of the Revolving Loan Accounts, the
Swingline Loan Account and the Term Loan.
"Mandatory Borrowing" means a special mandatory borrowing under the
Revolving Loan contemplated by Section 2.2.4.
"Margin Stock" means "margin stock" within the meaning of Regulation U
of the Board of Governors of the Federal Reserve System.
"Material Adverse Change" means, since any specified date or from the
circumstances existing immediately prior to the happening of any specified
event, a material adverse change in (a) the business, assets, financial
condition or income of the Company and its Subsidiaries (on a Consolidated
basis) or (b) the ability of the Obligors (i) to perform their material
obligations under the Credit Documents or (ii) to provide to the Agent and the
Lenders the rights and remedies contemplated by the Credit Documents.
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"Material Agreements" is defined in Section 7.2.2.
"Maximum Amount of Revolving Credit" is defined in Section 2.1.2.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means any Plan that is a "multiemployer plan" as
defined in section 4001(a)(3) of ERISA.
"Net Asset Sale Proceeds" means the cash proceeds of any sale or
disposition of assets (including by way of merger) after the Initial Closing
Date, and the cash proceeds of any insurance payments or condemnation awards on
account of the destruction or loss of property, by the Company or any of its
Subsidiaries (other than asset sales or dispositions permitted by Section 6.10.1
and Section 6.10.8) net of (a) any Indebtedness permitted by Section 6.6.7
(Capitalized Leases and purchase money indebtedness) secured by assets being
sold in such transaction and required to be paid from such proceeds, (b) income
taxes that, as estimated by the Company in good faith, will be required to be
paid by the Company or any of its Subsidiaries in cash as a result of, and
within 15 months after, such sale or disposition (provided that any such amounts
that are not actually paid in taxes within such period shall automatically
become Net Asset Sale Proceeds), (c) reasonable reserves for liabilities,
indemnification, escrows and purchase price adjustments resulting from the sale
of assets, (d) transfer, sales, use and other similar taxes payable in
connection with such sale or disposition and (e) all reasonable expenses of the
Company or any of its Subsidiaries incurred in connection with the transaction
of mergers permitted by Section 6.10.2.
"Net Debt Proceeds" means cash proceeds (net of reasonable
out-of-pocket transaction fees and expenses) from the incurrence by the Company
or any of its Subsidiaries after the Initial Closing Date of Financing Debt,
other than (i) Financing Debt permitted by Sections 6.6.1 (the Loan), (ii) 6.6.7
(purchase money Indebtedness and Capitalized Leases) and (iii) 6.6.9
(intercompany Indebtedness).
"Net Equity Proceeds" means the cash proceeds (net of reasonable
out-of-pocket fees and expenses) received by the Company or any of its
Subsidiaries in connection with any issuance by the Company or any of its
Subsidiaries after the Initial Closing Date of any shares of its capital stock,
other equity interests or options, warrants or other purchase rights to acquire
such capital stock or other equity interests to, or receipt of a capital
contribution from, any Person (other than any Obligors or their officers,
employees and directors).
"Nonperforming Lender" is defined in Section 11.4.4.
"Notes" means the Revolving Notes, the Swingline Note and the Term Loan
Notes.
"Obligor" means the Company, each Guarantor and each Person
guaranteeing or providing collateral for the Credit Obligations.
"Overdue Reimbursement Rate" means, on any date, a per annum rate of
interest equal to the highest Applicable Rate then in effect.
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"Payment Date" means (a) with respect to interest payments with respect
to each portion of the Loan that is not then subject to a LIBOR Pricing Option,
the last Banking Day of each month, the Final Term Loan Maturity Date and the
Final Revolving Maturity Date, (b) with respect to interest payments with
respect to each portion of the Loan that is then subject to a LIBOR Pricing
Option, the last Banking Day of the LIBOR Interest Period for such LIBOR Pricing
Option and (c) for all other purposes, the last Banking Day of each March, June,
September and December occurring after the Initial Closing Date, the Final Term
Loan Maturity Date and the Final Revolving Maturity Date.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
entity.
"Percentage Interest" means, with respect to any Lender, the Commitment
of such Lender with respect to the respective portions of the Loan and Letter of
Credit Exposure relative to the aggregate Commitments of all Lenders with
respect to the Loan and Letter of Credit Exposure. For purposes of determining
votes or consents by the Lenders, the Percentage Interest of any Lender shall be
computed as follows: (a) at all times when no Event of Default under Section
8.1.1 and no Bankruptcy Default exists, the ratio that the respective
Commitments of such Lender bears to the total Commitments of all Lenders as from
time to time in effect and reflected in the Register, and (b) at all other
times, the ratio that the respective amounts of the outstanding Loan and Letter
of Credit Exposure owing to such Lender bear to the total outstanding Loan and
Letter of Credit Exposure owing to all Lenders.
"Performing Lender" is defined in Section 11.4.4.
"Permitted Reinvestment" means, with respect to any transaction
resulting in Net Asset Sale Proceeds, the acquisition by the Company or a
Subsidiary of a business or other assets permitted by Section 6.8.5, or of other
assets permitted by Section 6.8, or, in the case of insurance or condemnation
proceeds, the repair or replacement by the Company or a Subsidiary of the assets
in question, in each of the foregoing cases that occurs on the date of, or
within the period of time specified in Section 4.3.2 after, such transaction.
"Permitted Reinvestment Reserve Amount" is defined in Section 4.3.2.
"Person" means any present or future natural person or any corporation,
association, partnership, joint venture, limited liability, joint stock or other
company, business trust, trust, organization, business or government or any
governmental agency or political subdivision thereof.
"PIK Interest" means any accrued interest payments on Financing Debt
that are postponed or made through the issuance of "payment-in-kind" notes or
other similar securities (including book-entry accrual with respect to such
postponed interest payments), all in accordance with the terms of such Financing
Debt; provided, however, that in no event shall PIK Interest include payments
made with cash or Cash Equivalents.
"Plan" means, at any date, any pension benefit plan subject to Title IV
of ERISA maintained, or to which contributions have been made or are required to
be made, by any ERISA Group Person within six years prior to such date.
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"Prior Credit Agreement" means the Credit Agreement dated as of April
16, 2001, as in effect on the Initial Closing Date, among the Company, the
lenders parties thereto, Fleet National Bank, as lender and as agent for itself
and the other lenders parties thereto.
"RCRA" means the federal Resource Conservation and Recovery Act, 42
U.S.C.ss.690, et seq.
"Receivables Securitization" means the sale, pledge or other
disposition by the Company or any of its Subsidiaries, with or without recourse,
of a bulk group of its accounts receivables in exchange for cash pursuant to the
Receivables Securitization Facility.
"Receivables Securitization Facility" means that certain Credit and
Security Agreement dated December 5, 2001 by and among Wachovia Bank, N.A. and
Buckeye Receivables Inc, or any refinancing, extension or replacement thereof
permitted by Section 6.6.12.
"Receivables Securitization Proceeds" means the monthly amount of cash
proceeds (net of reasonable out-of-pocket transaction fees and expenses)
received by the Company and its Subsidiaries from the purchaser under a
Receivables Securitization in respect of uncollected accounts receivable sold
pursuant to such Receivables Securitization net of collection proceeds during
such month from accounts receivable previously sold pursuant to such Receivables
Securitization.
"Reference Leverage Ratio" means, on any date, the ratio of
Consolidated Total Net Debt to Consolidated EBITDA as of the end of the most
recent period of four consecutive fiscal quarters for which financial reports
have been (or are required to have been) furnished to the Lenders in accordance
with Sections 6.4.1 or 6.4.2 prior to such date.
"Register" is defined in Section 12.1.3.
"Regulated Environmental Capital Expenditures" means environmental
Capital Expenditures required to be made by a Legal Requirement relating to any
Environmental Law or by any law, statute, rule, regulation, directive, order,
decree or guideline (or any interpretation thereof by courts or of
administrative bodies) of any foreign government relating to public health and
safety and protection of the environment.
"Related Fund" means, with respect to any Lender that is a fund that
invests in senior bank loans, any other fund that invests in senior bank loans
and is managed by the same investment advisor as such Lender or by an Affiliate
of such investment advisor.
"Replacement Lender" is defined in Section 12.4.
"Required Lenders" means, with respect to any approval, consent,
modification, waiver or other action to be taken by the Agent or the Lenders
under the Credit Documents which require action by the Required Lenders, such
Lenders as own at least a majority of the Percentage Interests (so long as such
majority of the Percentage Interests comprises the Percentage Interests of at
least three Lenders at any time when the total number of Lenders is at least
five); provided, however, that with respect to any matters referred to in the
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proviso to Section 15.1, Required Lenders means such Lenders as own at least the
respective portions of the Percentage Interests required by Section 15.1.
"Revolving Loan" is defined in Section 2.1.4.
"Revolving Loan Account" is defined in Section 2.1.4.
"Revolving Loan Lender" means any Lender having a Percentage Interest
in the Revolving Loan.
"Revolving Notes" is defined in Section 2.1.4.
"Securities Act" means the federal Securities Act of 1933.
"Security Agreement" is defined in Section 5.1.5.
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw
Hill Companies, Inc.
"SPV" is defined in Section 12.3.
"Subsidiary" means any Person of which the Company (or other specified
Person) shall at the time, directly or indirectly through one or more of its
Subsidiaries, (a) own at least 50% of the outstanding capital stock (or other
shares of beneficial interest) entitled to vote generally, (b) hold at least 50%
of the partnership, joint venture or similar interests or (c) be a general
partner or joint venturer, provided, however, that Buckeye Receivables Inc.
shall not be deemed a "Subsidiary" so long as its operations are limited to
implementing and facilitating the Receivables Securitization.
"Swingline Borrower" means the Company.
"Swingline Lender" means Fleet, in its capacity as swingline lender
hereunder.
"Swingline Loan" is defined in Section 2.2.3.
"Swingline Loan Account" is defined in Section 2.2.3.
"Swingline Note" is defined in Section 2.2.3.
"Swingline Rate" means the rate equal to the sum of (a) the Applicable
Rate calculated on the basis of the Base Rate, minus (i) 1/2% per annum at any
time when Consolidated Total Net Debt is less than 525% of Consolidated EBITDA
for the most recent period of four consecutive fiscal quarters for which
financial reports have been (or are required to have been) furnished to the
Lenders in accordance with Section 6.4.1 or 6.4.2 and (ii) 0% at all other
times, plus (b) an additional 2% per annum effective on the day the Agent
notifies the Company that the interest rates hereunder are increasing as a
result of the occurrence and continuance of an Event of Default until the
earlier of such time as (i) such Event of Default is no longer continuing or
(ii) such Event of Default is deemed no longer to exist, in each case pursuant
to Section 8.3.
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"Syndication Agent" means Citibank, N.A.
"Synthetic Lease" means a lease by the Company and its Subsidiaries
that is treated as an operating lease under GAAP and as a loan or other
financing for federal income tax purposes.
"Synthetic Lease Obligations" means the aggregate amount of future
rental payments under all Synthetic Leases, discounted as if such Synthetic
Leases were Capitalized Leases.
"Tax" means any present or future tax, levy, duty, impost, deduction,
withholding or other charges of whatever nature at any time required by any
Legal Requirement (a) to be paid by any Lender or (b) to be withheld or deducted
from any payment otherwise required hereby to be made to any Lender, in each
case on or with respect to such Lender's obligations hereunder, the Loan, any
payment in respect of the Credit Obligations or any Funding Liability not
included in the foregoing; provided, however, that the term "Tax" shall not
include taxes imposed upon or measured by the net or gross income of such Lender
(other than withholding taxes that are not creditable for the jurisdiction
imposing such withholding taxes against taxes imposed upon or measured by the
net or gross income of such Lender).
"Term Loan" is defined in Section 2.4.1.
"Term Loan Notes" is defined in Section 2.4.2.
"Tranche" means each of the Revolving Loan and the Term Loan,
considered as a separate credit facility.
"UCP" is defined in Section 2.3.6.
"United States Funds" means such coin or currency of the United States
of America as at the time shall be legal tender therein for the payment of
public and private debts.
"Unrestricted Affiliate" means a Person which the Company indicates in
writing to the Agent will constitute an "Unrestricted Affiliate" hereunder,
including joint ventures and Persons in which the Company and its Subsidiaries
have a non-controlling equity interest.
"Wholly Owned Subsidiary" means any Subsidiary of the Company (or other
specified Person) of which all of the outstanding capital stock (or other shares
of beneficial interest) entitled to vote generally (other than directors'
qualifying shares or, in the case of Foreign Subsidiaries, shares required to be
held by foreign nationals) is owned by the Company (or other specified Person)
directly, or indirectly through one or more Wholly Owned Subsidiaries.
2. The Credits.
2.1. Revolving Credit.
2.1.1. Revolving Loan. Subject to all the terms and
conditions of this Agreement and so long as no Default exists, from
time to time on and after the Initial Closing Date and prior to the
Final Revolving Maturity Date the Lenders will, severally in accordance
with their respective Percentage Interests, make loans to the Company
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in such amounts as may be requested by the Company in accordance with
Section 2.1.3. The sum of the aggregate principal amount of loans made
under this Section 2.1.1 at any one time outstanding plus the Swingline
Loan plus the Letter of Credit Exposure shall in no event exceed the
Maximum Amount of Revolving Credit. In no event will the principal
amount of loans made by any Lender pursuant to this Section 2.1 at any
one time outstanding exceed such Lender's Commitment.
2.1.2. Maximum Amount of Revolving Credit. The term "Maximum
Amount of Revolving Credit" means the lesser of:
(a) (i) $70,000,000 minus (ii) the amount outstanding under
the receivables Securitization Facility, at any time when the
Receivables Securitization Facility remains outstanding minus (iii) the
Equivalent Amount of United Stated Funds equal to the aggregate amount
outstanding under the Canadian Credit Facility; and
(b) the amount (in an integral multiple of $1,000,000) to
which the Maximum Amount of Revolving Credit shall have been
irrevocably reduced from time to time by notice from the Company to the
Agent.
2.1.3. Borrowing Requests. The Company may from time to time
request a loan under Section 2.1.1 by providing to the Agent a notice
(which may be given by a telephone call received by a Lending Officer
if promptly confirmed in writing). Such notice must be not later than
noon (Boston time) on the first Banking Day (third Banking Day if any
portion of such loan will be subject to a LIBOR Pricing Option on the
requested Closing Date) prior to the requested Closing Date for such
loan. The notice must specify (a) the amount of the requested loan
(which shall not be less than $3,000,000 and an integral multiple of
$500,000) and (b) the requested Closing Date therefor (which shall be
a Banking Day). Upon receipt of such notice, the Agent will
promptly inform each other Lender (by telephone or otherwise). Each
such loan will be made at the Boston Office by depositing the amount
thereof to the general account of the Company with the Agent. In
connection with each such loan, the Company shall furnish to the Agent
a certificate in substantially the form of Exhibit 5.2.1.
2.1.4. Revolving Loan Account; Revolving Notes. The aggregate
principal amount of the loans made under this Section 2.1 at any one
time outstanding is referred to as the "Revolving Loan". The Agent
will establish on its books a loan account for the Company (the
"Revolving Loan Account") which the Agent shall administer as follows:
(a) the Agent shall add to the Revolving Loan Account, and the
Revolving Loan Account shall evidence, the amount of the Revolving Loan
from time to time and (b) the Agent shall reduce the Revolving Loan
Account by the amount of all payments made on account of the Revolving
Loan from time to time. The Revolving Loan shall be deemed owed to each
Lender severally in accordance with such Lender's Percentage Interest
therein, and all payments credited to the Revolving Loan Account shall
be for the account of each Lender in accordance with its Percentage
Interest therein. The Company's obligations to pay each Lender's
Percentage Interest in the Revolving Loan shall be evidenced by a
separate amended and restated note of the Company in substantially the
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form of Exhibit 2.1.4 (the "Revolving Notes"), payable to each Lender
in maximum principal amount equal to such Lender's Percentage Interest
in the Revolving Loan.
2.2. Swingline Credit.
2.2.1. Swingline Loan. Subject to all the terms and
conditions of this Agreement and so long as no Default exists, from
time to time on and after the Initial Closing Date and prior to the
Final RevolvingMaturity Date, the Swingline Lender will make loans to
the Company in such amounts as may be requested by the Company in
accordance with Section 2.2.2. The sum of the aggregate principal
amount of loans made under this Section 2.2 at any one time outstanding
plus the Revolving Loan plus the Letter of Credit Exposure shall in no
event exceed the Maximum Amount of Revolving Credit. In no event will
the principal amount of loans made pursuant to this Section 2.2 at any
one time outstanding exceed $15,000,000.
2.2.2. Borrowing Requests. The Company may from time to time
request a loan under Section 2.2.1 by providing to the Swingline Lender
a notice (which may be given by a telephone call received by a Lending
Officer). Such notice must be not later than 2:00 p.m. (Boston time)
on the requested Closing Date (which must be a Banking Day) for such
loan. The notice must specify the amount of the requested loan (which
shall be not less than $100,000 and an integral multiple of $50,000).
Each such loan will be made at the Boston office by depositing the
amount thereof to the general account of the Company with the Swingline
Lender. In connection with each such loan, the Company shall furnish
to the Swingline Lender a certificate in substantially the form of
Exhibit 5.2.1.
2.2.3. Swingline Loan Account; Swingline Notes. The
Swingline Lender will establish on its books a loan account for the
Company (the "Swingline Loan Account") which the Swingline Lender shall
administer as follows: (a) the Swingline Lender shall add to the
Swingline Loan Account, and the Swingline Loan Account shall evidence,
the principal amount of all loans from time to time made by the
Swingline Lender to the Company pursuant to Section 2.2.1 and (b) the
Swingline Lender shall reduce the Swingline Loan Account by the amount
of all payments made on account of the Indebtedness evidenced by the
Swingline Loan Account. The aggregate principal amount of the
Indebtedness evidenced by the Swingline Loan Account is referred to as
the "Swingline Loan". The Company's obligation to pay the Swingline
Loan shall be evidenced by an amended and restated note of the Company
in substantially the form of Exhibit 2.2.3 (the "Swingline Note"),
payable to the Swingline Lender in maximum principal amount equal to
the Swingline Loan.
2.2.4. Conversion of Swingline Loan into Revolving Loan. On
any Banking Day after the occurrence and during the continuance of an
Event of Default, the Swingline Lender may, in its sole discretion,
give notice to the other Lenders and the Company that the Swingline
Loan shall be paid in full with a Mandatory Borrowing. Such a notice
of a Mandatory Borrowing shall be deemed to have been automatically
given upon a Bankruptcy Default or upon the exercise of any of the
remedies provided in Section 8.2. Upon the giving of any such notice
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or deemed notice, a Mandatory Borrowing under the Revolving Loan in the
amount of the Swingline Loan shall be made on the next Banking Day from
all Lenders in accordance with their respective Percentage
Interests in the Revolving Loan, and the proceeds thereof shall be
applied to the Swingline Lender as a repayment of the Swingline Loan.
Each Lender irrevocably agrees to make such loan pursuant to each such
Mandatory Borrowing notice in the amount and in the matter specified
above in this Section 2.2.4, notwithstanding (a) whether any conditions
specified in Section 5 have been satisfied, (b) that a Default or an
Event of Default has occurred and is continuing or (c) the date of
such Mandatory Borrowing. In the event that any Mandatory Borrowing
cannot for any reason be made on the date required above (including as
a result of the commencement of a proceeding under the Bankruptcy
Code), each Lender shall promptly purchase from the Swingline Lender as
of the date the Mandatory Borrowing otherwise would have occurred such
participation in the Swingline Loan as shall be necessary to cause the
Lenders to share in the Swingline Loan ratably based upon their
respective Percentage Interests in the Revolving Loan. In the event of
such participations, all interest payable on the Swingline Loan shall
be for the account of the Swingline Lender until the date on which
the participations are required to be purchased and, to the extent
attributable to the purchased participations, shall be payable to the
participants from and after such date. At the time any such purchase
of participations is actually made, the purchasing Lender shall pay the
Swingline Lender interest on the principal amount of the participation
purchased at the overnight Federal Funds Rate for each day, commencing
with the date the Mandatory Borrowing otherwise would have occurred to
the date of payment for such participation.
2.3. Letters of Credit.
2.3.1. Issuance of Letters of Credit. Subject to all the terms
and conditions of this Agreement and so long as no Default exists, from
time to time on and after the Initial Closing Date and prior to the
Final Revolving Maturity Date, the Letter of Credit Issuer will issue
for the account of the Company one or more irrevocable documentary or
standby letters of credit (together with outstanding letters of credit
in the aggregate amount of approximately $3,224,000 issued by Fleet
under the Prior Credit Agreement that will continue as Letters of
Credit issued under this Agreement, the "Letters of Credit"). The sum
of Letter of Credit Exposure plus the Revolving Loan plus the Swingline
Loan shall in no event exceed the Maximum Amount of Revolving Credit.
Letter of Credit Exposure shall in no event exceed $10,000,000.
2.3.2. Requests for Letters of Credit. The Company may from
time to time request a Letter of Credit to be issued by providing to
the Letter of Credit Issuer (and the Agent if the Letter of Credit
Issuer is not the Agent) a notice which is actually received not less
than five Banking Days prior to the requested Closing Date for such
Letter of Credit specifying (a) the amount of the requested Letter of
Credit, (b) the beneficiary thereof, (c) the requested Closing Date and
(d) the principal terms of the text for such Letter of Credit. Each
Letter of Credit will be issued by forwarding it to the beneficiary
thereof as directed in writing by the Company. In connection with the
issuance of any Letter of Credit, the Company shall furnish to the
Letter of Credit Issuer (and the Agent if the Letter of Credit Issuer
is not the Agent) a certificate in substantially the form of Exhibit
5.2.1 and any customary application form required by the Letter of
Credit Issuer. In the event of any inconsistency between such
application form and this Agreement, this Agreement shall govern.
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2.3.3. Form and Expiration of Letters of Credit. Each Letter
of Credit issued under this Section 2.3 and each draft accepted or
paid under such a Letter of Credit shall be issued, accepted or paid,
as the case may be, by the Letter of Credit Issuer at its principal
office. No Letter of Credit shall provide for the payment of drafts
drawn thereunder, and no draft shall be payable, at a date which is
later than the earlier of (a) five Banking Days prior to the Final
Revolving Maturity Date and (b) (i) in the case of any standby Letter
of Credit not described in clause (ii) below, the first anniversary of
the date of issuance (which expiration period may be extended at the
option of the Letter of Credit Issuer for additional 12-month periods
ending prior to Final Revolving Maturity Date), (ii) in the case of any
direct-pay Letter of Credit issued in connection with industrial
development bonds permitted by Section 6.6.18, such expiration date as
may be customary in similar transactions and reasonably acceptable to
the Required Lenders (but in any event no earlier than the first
anniversary of the date of issuance) and (iii) in the case of any other
Letter of Credit, the date 180 days after the date of issuance. Each
Letter of Credit and each draft accepted under a Letter of Credit shall
be in such form and minimum amount, and shall contain such terms, as
the Letter of Credit Issuer and the Company may agree upon at the time
such Letter of Credit is issued, including a requirement of not less
than three Banking Days after presentation of a draft before
payment must be made thereunder.
2.3.4. Lenders' Participation in Letters of Credit. Upon the
issuance of any Letter of Credit, a participation therein, in an
amount equal to each Revolving Loan Lender's Percentage Interest in the
Revolving Loan, shall automatically be deemed granted by the Letter of
Credit Issuer to each Lender on the date of such issuance and the
Revolving Loan Lenders shall automatically be obligated, as set forth
in Section 11.4.2, to reimburse the Letter of Credit Issuer to the
extent of their respective Percentage Interests for all obligations
incurred by the Letter of Credit Issuer to third parties in respect of
such Letter of Credit not reimbursed by the Company. The Letter of
Credit Issuer will send to each Revolving Loan Lender (and to the Agent
if the Letter of Credit Issuer is not the Agent) a confirmation
regarding the participations in Letters of Credit outstanding during
such month.
2.3.5. Reimbursement of Payment. At such time as a Letter of
Credit Issuer makes any payment on a draft presented or accepted under
a Letter of Credit, the amount of such payment shall be considered a
loan under Section 2.1.1 (regardless of whether the conditions set
forth in Section 5.2 are satisfied) and part of the Revolving Loan as
if the Company had paid in full the amount required with respect to the
Letter of Credit by borrowing such amount under Section 2.1.1, except
as provided below. If during the existence of an Event of Default the
Agent provides written notice to the Company that Letter of Credit
payments will no longer be considered loans under Section 2.1.1, the
Company will on demand pay to the Agent in immediately available funds
the amount of such payment.
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2.3.6. UCP; ISP. As to any Letter of Credit that is a
documentary letter of credit, the most recent Uniform Customs and
Practice for Documentary Credits adopted by a Congress of the
International Chamber of Commerce, and any subsequent revisions thereof
approved by a Congress of the International Chamber of Commerce and
adhered to by the Letter of Credit Issuer (the "UCP"), shall be binding
on the Company and the Letter of Credit Issuer except to the extent
otherwise provided herein, in any Letter of Credit or in any other
Credit Document relating to such Letter of Credit. As to any Letter of
Credit that is a standby letter of credit, the most recent
International Standby Practices adopted by a Congress of the
International Chamber of Commerce, and any subsequent revisions thereof
approved by a Congress of the International Chamber of Commerce and
adhered to by the Letter of Credit Issuer (the "ISP"), shall be binding
on the Company and the Letter of Credit Issuer except to the extent
otherwise provided herein, in any Letter of Credit or in any other
Credit Document. Without limiting the foregoing, in the event of an
unexpected closure of the Letter of Credit Issuer, Letter of Credit
draws may be made up to only two Banking Days after the reopening of
the Letter of Credit Issuer rather than the 30 day period provided in
Rule 3.14(a) of the ISP. Anything in the UCP or the ISP to the
contrary notwithstanding:
(a) With respect to each Letter of Credit, neither the
Letter of Credit Issuer nor its correspondents shall be responsible for
or shall have any duty to ascertain (unless the Letter of Credit Issuer
or such correspondent is grossly negligent or willful in failing so to
ascertain):
(i) the genuineness of any signature or the validity, form,
sufficiency, accuracy, genuineness or legal effect of any endorsements;
(ii) delay in giving, or failure to give, notice of arrival,
notice of refusal of documents or of discrepancies in respect of which
any Letter of Credit Issuer refuses the documents or any other notice,
demand or protest;
(iii) the performance by any beneficiary under any Letter of
Credit of such beneficiary's obligations to the Company;
(iv) inaccuracy in any notice received by the Letter of
Credit Issuer;
(v) the validity, form, sufficiency, accuracy, genuineness
or legal effect of any instrument, draft, certificate or other document
required by such Letter of Credit to be presented before payment of a
draft if such instrument, draft, certificate or other document appears
on its face to comply with the requirements of the Letter of Credit, or
the office held by or the authority of any Person signing any of the
same; or
(vi) failure of any instrument to bear any reference or
adequate reference to such Letter of Credit, or failure of any Person
to note the amount of any instrument on the reverse of such Letter of
Credit or to surrender such Letter of Credit or to forward documents
in the manner required by such Letter of Credit.
(b) Except insofar as a particular Letter of Credit
contains express, contrary instructions, the Letter of Credit Issuer
may honor as complying with the terms of any Letter of Credit and with
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this Agreement any drafts or other documents otherwise in order signed
or issued by an administrator, executor, conservator, trustee in
bankruptcy, debtor in possession, assignee for benefit of creditors,
liquidator, receiver or other legal representative of the party
authorized under such Letter of Credit to draw or issue such drafts or
other documents.
(c) The occurrence of any of the events referred to in the
UCP or the ISP or in the preceding clauses of this Section 2.3.6 shall
not affect or prevent the vesting of any of the Letter of Credit
Issuer's rights or powers hereunder or the Company's obligation to make
reimbursement (whether by cash payment or refinancing with proceeds of
the Revolving Loan) of amounts paid under any Letter of Credit or any
draft accepted thereunder.
(d) In the event of any conflict between the provisions of
this Agreement and either the UCP or the ISP, the provisions of this
Agreement shall govern.
2.3.7. Subrogation. Upon any payment by a Letter of Credit
Issuer under any Letter of Credit and until the reimbursement of such
Letter of Credit Issuer by the Company with respect to such payment
(whether by cash payment or refinancings with proceeds of the Revolving
Loan), the Letter of Credit Issuer shall be entitled to be subrogated
to, and to acquire and retain, the rights which the Person to whom such
payment is made may have against the Company and its Subsidiaries, all
for the benefit of the Lenders. The Company and its Subsidiaries will
take such action as the Letter of Credit Issuer may reasonably
request, including requiring the beneficiary of any Letter of Credit to
execute such documents as the Letter of Credit Issuer may reasonably
request, to assure and confirm to the Letter of Credit Issuer such
subrogation and such rights, including the rights, if any, of the
beneficiary to whom such payment is made in accounts receivable,
inventory and other properties and assets of any Obligor.
2.3.8. Modification, Consent, etc. If the Company requests or
consents in writing to any modification or extension of any Letter of
Credit, or waives any failure of any draft, certificate or other
document to comply with the terms of such Letter of Credit, and if the
Letter of Credit Issuer consents thereto, the Letter of Credit Issuer
shall be entitled to rely on such request, consent or waiver. This
Agreement shall be binding upon the Company with respect to such Letter
of Credit as so modified or extended, and with respect to any action
taken or omitted by such Letter of Credit Issuer pursuant to any such
request, consent or waiver.
2.4. Term Loan.
2.4.1. Term Loan. Subject to all the terms and conditions of
this Agreement and so long as no Default exists, on the Initial Closing
Date the Lenders will, in accordance with their respective Percentage
Interests in the Term Loan, severally lend to the Company as a term
loan an aggregate amount of $150,000,000. The aggregate principal
amount of the loans made pursuant to this Section 2.4.1 at any one time
outstanding is referred to as "Term Loan". In connection with the Term
Loan, the Company shall furnish to the Agent a certificate in
substantially the form of Exhibit 5.2.1.
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2.4.2. Term Loan Notes. The Term Loan shall be made at the
Boston Office by crediting the amount of such loan to the general
account of the Company with the Agent against delivery to the Agent of
the separate amended and restated notes of the Company (the "Term Loan
Notes") payable to the respective Lenders having a Percentage Interest
therein. The Term Loan Note issued to each Lender shall be in a
principal amount equal to such Lender's Percentage Interest in the Term
Loan, and shall be in substantially the form of Exhibit 2.4.2.
2.5. Application of Proceeds.
2.5.1. Revolving Loan. Subject to Section 2.5.5, the Company
will apply the proceeds of the Revolving Loan to refinance existing
Indebtedness, for working capital, for acquisitions and for other
lawful corporate purposes of the Company and its Subsidiaries;
provided, however, that a portion of the Maximum Amount of Revolving
Credit equal to any then effective Permitted Reinvestment Reserve
Amount may only be borrowed to finance an Investment permitted by
Section 6.8.5.
2.5.2. Swingline Loan. Subject to Section 2.5.5, the Company
will apply the proceeds of the Swingline Loan for working capital and
other lawful corporate purposes.
2.5.3. Letters of Credit. Letters of Credit shall be issued
only for such lawful corporate purposes as the Company has requested in
writing and to which the Letter of Credit Issuer agrees.
2.5.4. Term Loan. Subject to Section 2.5.5, the Company will
apply the proceeds of the Term Loan for working capital and other
lawful corporate purposes.
2.5.5. Specifically Prohibited Applications. The Company will
not, directly or indirectly, apply any part of the proceeds of any
extension of credit made pursuant to the Credit Documents (a) to
purchase or to carry Margin Stock in amounts that would result in a
violation of Regulation U of the Board of Governors of the Federal
Reserve System, (b) to any transaction prohibited by other Credit
Documents, (c) to make any Distribution (other than in respect of the
Receivables Securitization Facility or the Canadian Credit Facility) or
(d) to make any voluntary prepayment of principal of or interest on any
Financing Debt (other than the Credit Obligations, the Receivables
Securitization Facility or the Canadian Credit Facility) or make any
voluntary redemptions or repurchases of Financing Debt (other than the
Credit Obligations, the Receivables Securitization Facility or the
Canadian Credit Facility).
3. Interest; LIBOR Pricing Options; Fees.
3.1. Interest. The Revolving Loan and Term Loan shall each accrue
and bear interest at a rate per annum which shall at all times equal the
Applicable Rate. Prior to any stated or accelerated maturity of the Revolving
Loan or the Term Loan, the Company will, on each Payment Date, pay the accrued
and unpaid interest on the portion of the Revolving Loan and the Term Loan,
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as applicable which was not subject to a LIBOR Pricing Option. On the last day
of each LIBOR Interest Period or on any earlier termination of any LIBOR Pricing
Option, the Company will pay the accrued and unpaid interest on the portion of
the Revolving Loan or Term Loan which was subject to the LIBOR Pricing
Option which expired or terminated on such date. In the case of any LIBOR
Interest Period longer than three months, the Company will also pay the accrued
and unpaid interest on the portion of the Revolving Loan or Term Loan subject to
the LIBOR Pricing Option having such LIBOR Interest Period at three-month
intervals, the first such payment to be made on the last Banking Day of the
three-month period which begins on the first day of such LIBOR Interest Period.
On the stated or any accelerated maturity of the Revolving Loan or the Term
Loan, the Company will pay all accrued and unpaid interest on the Revolving Loan
or Term Loan, as applicable, including any accrued and unpaid interest on any
portion of the Revolving Loan or Term Loan which is subject to a LIBOR Pricing
Option. All payments of interest on the Revolving Loan and Term Loan shall be
made to the Agent for the account of each Lender in accordance with such
Lender's Percentage Interest therein. On the Initial Closing Date the Company
agrees to pay the Lenders interest for any funds advanced to the Agent prior to
the Initial Closing Date at the request of the Company to facilitate the initial
closing hereunder at a rate equal to the Applicable Rate computed on the basis
of the Base Rate.
3.2. LIBOR Pricing Options.
3.2.1. Election of LIBOR Pricing Options. Subject to all of
the terms and conditions hereof and so long as no Default exists, the
Company may from time to time, by irrevocable notice to the Agent
actually received by noon (Boston time) not less than three Banking
Days prior to the commencement of the LIBOR Interest Period selected
in such notice, elect to have such portion of the Revolving Loan and/or
Term Loan as the Company may specify in such notice accrue and bear
interest during the LIBOR Interest Period so selected at the Applicable
Rate computed on the basis of the LIBOR Rate. In the event the Company
at any time does not elect a LIBOR Pricing Option under this Section
3.2.1 for any portion of the Loan (upon termination of a LIBOR Pricing
Option or otherwise), then such portion of the Loan will accrue and
bear interest at the Applicable Rate based on the Base Rate. Portions
of the Revolving Loan and Term Loan may not be combined into a single
LIBOR Pricing Option. No such election shall become effective:
(a) if, prior to the commencement of any such LIBOR
Interest Period, the Agent determines that (i) the electing or granting
of the LIBOR Pricing Option in question would violate a Legal
Requirement, (ii) LIBOR deposits in an amount approximately equal to
the principal amount of the Revolving Loan or Term Loan as to which
such LIBOR Pricing Option has been elected and which have a term
corresponding to the proposed LIBOR Interest Period are not readily
available in the London inter bank market, or (iii) by reason of
circumstances affecting the London inter-bank market, adequate and
reasonable methods do not exist for ascertaining the interest rate
applicable to such deposits for the proposed LIBOR Interest Period; or
(b) if any Lender shall have advised the Agent by
telephone or otherwise at or prior to noon (Boston time) on the second
Banking Day prior to the commencement of such proposed LIBOR Interest
Period (and shall have subsequently confirmed in writing) that, after
reasonable efforts to determine the availability of such deposits, such
Lender reasonably anticipates that deposits in an amount equal to the
Percentage Interest of such Lender in the portion of the Revolving Loan
or Term Loan as to which such LIBOR Pricing Option has been elected and
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which have a term corresponding to the LIBOR Interest Period in
question will not be offered in the London inter-bank market to such
Lender at a rate of interest that does not exceed the anticipated LIBOR
Basic Rate. Any such Lender may be replaced by the Company pursuant to
Section 12.4.
3.2.2. Notice to Lenders and Company. The Agent will promptly
inform each Lender (by telephone or otherwise) of each notice received
by it from the Company pursuant to Section 3.2.1 and of the LIBOR
Interest Period specified in such notice. Upon determination by the
Agent of the LIBOR Rate for such LIBOR Interest Period or in the event
such election shall not become effective, the Agent will promptly
notify the Company and each Lender (by telephone or otherwise) of the
LIBOR Rate so determined or why such election did not become effective,
as the case may be.
3.2.3. Selection of LIBOR Interest Periods. LIBOR Interest
Periods shall be selected so that:
(a) the minimum portion of the Revolving Loan or Term Loan
subject to any LIBOR Pricing Option shall be $3,000,000 and an
integral multiple of $500,000;
(b) no more than 20 LIBOR Pricing Options shall be
outstanding at any one time;
(c) no LIBOR Interest Period with respect to any part of
the Revolving Loan subject to a LIBOR Pricing Option shall expire later
than the Final Revolving Maturity Date;
(d) no LIBOR Interest Period with respect to any part of
the Term Loan subject to a LIBOR Pricing Option shall expire later than
the Final Term Loan Maturity Date; and
(e) a portion of the Term Loan equal to or greater than the
amount of the next mandatory prepayment required by Section 4.2 shall
not be subject to a LIBOR Pricing Option on the date such mandatory
prepayment is required to be made.
3.2.4. Additional Interest. If any portion of the Revolving
Loan or Term Loan subject to a LIBOR Pricing Option is repaid, or any
LIBOR Pricing Option is terminated for any reason (including
acceleration of maturity, but excluding the failure of any Lender to
perform its obligations under this Agreement), on a date which is prior
to the last Banking Day of the LIBOR Interest Period applicable to such
LIBOR Pricing Option, the Company will pay to the Agent for the account
of each Lender in accordance with such Lender's Percentage Interest,
in addition to any amounts of interest otherwise payable hereunder, an
amount equal to the present value (calculated in accordance with this
Section 3.2.4) of interest for the unexpired portion of such LIBOR
Interest Period on the portion of the Revolving Loan or Term Loan so
repaid, or as to which a LIBOR Pricing Option was so terminated, at a
per annum rate equal to the excess, if any, of (a) the rate applicable
to such LIBOR Pricing Option minus (b) the rate of interest obtainable
by the Agent upon the purchase of debt securities customarily issued by
the Treasury of the United States of America which have a maturity date
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approximating the last Banking Day of such LIBOR Interest Period. The
present value of such additional interest shall be calculated by
discounting the amount of such interest for each day in the unexpired
portion of such LIBOR Interest Period from such day to the date of such
repayment or termination at a per annum interest rate equal to the
interest rate determined pursuant to clause (b) of the preceding
sentence, and by adding all such amounts for all such days during such
period. The determination by the Agent of such amount of interest
shall, in the absence of manifest error, be conclusive. For purposes
of this Section 3.2.4, if any portion of the Revolving Loan or Term
Loan which was to have been subject to a LIBOR Pricing Option is not
outstanding on the first day of the LIBOR Interest Period applicable to
such LIBOR Pricing Option other than for reasons described in
Section 3.2.1, the Company shall be deemed to have terminated such
LIBOR Pricing Option.
3.2.5. Violation of Legal Requirements. If any Legal
Requirement shall prevent any Lender from funding or maintaining
through the purchase of deposits in the London inter-bank market any
portion of the Revolving Loan or Term Loan subject to a LIBOR Pricing
Option or otherwise from giving effect to such Lender's obligations as
contemplated by Section 3.2, (a) the Agent may by notice to the Company
terminate all of the affected LIBOR Pricing Options to the extent not
doing so would violate a Legal Requirement, (b) the portion of the
Revolving Loan or Term Loan subject to such terminated LIBOR Pricing
Options shall immediately bear interest thereafter at the Applicable
Rate computed on the basis of the Base Rate and (c) the Company shall
make any payment required by Section 3.2.4. Any such Lender may be
replaced by the Company pursuant to Section 12.3.
3.2.6. Funding Procedure. The Lenders may fund any portion of
the Revolving Loan or the Term Loan subject to a LIBOR Pricing
Option out of any funds available to the Lenders. Regardless of the
source of the funds actually used by any of the Lenders to fund any
portion of the Revolving Loan or Term Loan subject to a LIBOR Pricing
Option, however, all amounts payable hereunder, including the interest
rate applicable to any such portion of the Revolving Loan or Term Loan
and the amounts payable under Sections 3.2.4 and 3.7, shall be computed
as if each Lender had actually funded such Lender's Percentage
Interest in such portion of the Revolving Loan or Term Loan through the
purchase of deposits in such amount of the type by which the LIBOR
Basic Rate was determined with a maturity the same as the applicable
LIBOR Interest Period relating thereto and through the transfer of such
deposits from an office of the Lender having the same location as the
applicable LIBOR Office to one of such Lender's offices in the United
States of America.
3.3. Interest on Swingline Loan. The Swingline Loan shall accrue
and bear interest at a rate per annum which shall at all times equal the
Swingline Rate. Interest on the Swingline Loan shall be calculated on a
daily basis and on the basis of a year of 360 days. Prior to any stated
or accelerated maturity of the Swingline Loan, the Swingline Borrower
will on each Payment Date, beginning on the first Payment Date after
the Initial Closing Date, pay the accrued and unpaid interest on such
Indebtedness. On any stated or accelerated maturity of the Swingline
Loan all accrued and unpaid interest thereon shall be forthwith due and
payable. All payments of interest hereunder in respect of the Swingline
Loan shall be made by the Swingline Borrower to the Agent for the
account of the Swingline Lender.
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3.4. Computations of Interest and Fees. For purposes of this
Agreement, interest, commitment fees and Letter of Credit fees (and any other
amount expressed as interest or such fees) shall be computed on the
basis of a 360-day year for actual days elapsed; provided, however,
that interest on any portion of the Loan calculated with respect to the
Base Rate shall be computed on the basis of a 365 day year. If any
payment required by this Agreement becomes due on any day that is not a
Banking Day, such payment shall, except as otherwise provided in the
definition of "LIBOR Interest Period", be made on the next succeeding
Banking Day. If the due date for any payment of principal is extended
as a result of the immediately preceding sentence, interest shall be
payable for the time during which payment is extended at the Applicable Rate.
3.5. Commitment Fees. In consideration of the Revolving Loan
Lenders' Commitments to make the extensions of credit provided for in Section
2.1, while such Commitments are outstanding, the Company will pay to the Agent
for the account of the Revolving Loan Lenders in accordance with the Lenders'
respective Percentage Interests in the Revolving Loan, on each Payment Date and
on the Final Revolving Maturity Date (or the date of any earlier termination of
this Agreement), commencing on the first Payment Date after the Initial Closing
Date and ending on the earlier of the Final Revolving Maturity Date or any
earlier termination of this Agreement, an amount equal to interest computed at
the Commitment Fee Rate on the amount by which (a) the average daily Maximum
Amount of Revolving Credit during the three month period or portion thereof
ending on such Payment Date exceeded (b) the sum of (i) the average daily
Revolving Loan during such period or portion thereof plus (ii) the average daily
Letter of Credit Exposure during such period or portion thereof; provided,
however, that for the purpose of this Section 3.5, the Maximum Amount of
Revolving Credit shall be increased by any amounts subtracted pursuant to
Section 2.1.2(a)(ii) and (iii) in calculating the Maximum Amount of Revolving
Credit in respect of the Receivables Securitization Facility and the Canadian
Credit Facility.
3.6. Letter of Credit Fees. The Company will pay to the Agent for
the account of each of the Lenders, in accordance with the Lenders'respective
Percentage Interests in the Revolving Loan, on each Payment Date, a Letter of
Credit fee equal to interest at a per annum rate equal to the Applicable Margin
with respect to a LIBOR Pricing Option, as from time to time in effect, on the
average daily Letter of Credit Exposure during the three-month period or portion
thereof ending on such Payment Date. The Company will pay to the Letter of
Credit Issuer a fronting fee equal to 1/4% of each Letter of Credit and other
customary service charges and expenses for its services in connection with the
Letters of Credit at the times and in the amounts from time to time in effect in
accordance with its general rate structure, including fees and expenses relating
to issuance, amendment, negotiation, cancellation and similar operations.
3.7. Changes in Circumstances; Yield Protection.
3.7.1. Reserve Requirements, etc. If any Legal Requirement
shall (a) impose, modify, increase or deem applicable any insurance
assessment, reserve, special deposit or similar requirement against any
Funding Liability or the Letters of Credit, (b) impose, modify,
increase or deem applicable any other requirement or condition with
respect to any Funding Liability or the Letters of Credit, or
(c) change the basis of taxation of Funding Liabilities or payments in
respect of any Letter of Credit (other than changes in the rate of
taxes measured by the
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overall net or gross income of such Lender) and the effect of any of
the foregoing shall be to increase the cost to any Lender of issuing,
making, funding or maintaining its respective Percentage Interest in
any portion of the Loan subject to a LIBOR Pricing Option or any Letter
of Credit, to reduce the amounts received or receivable by such Lender
under this Agreement or to require such Lender to make any payment or
forego any amounts otherwise payable to such Lender under this
Agreement (other than any Tax or any reserves that are included in
computing the LIBOR Reserve Rate), then such Lender may claim
compensation from the Company under Section 3.7.5.
3.7.2. Taxes.
(a) All payments of the Credit Obligations shall be made
without set-off or counterclaim and free and clear of any deductions,
including deductions for Taxes, unless the Company is required by law
to make such deductions. If any Lender shall be subject to any Tax
with respect to any payment of the Credit Obligations or its
obligations hereunder, then such Lender may claim compensation from the
Company under Section 3.7.5 to the extent such Lender is then in
compliance with any applicable requirements of paragraph (b) below.
Whenever Taxes must be withheld by the Company with respect to any
payments of the Credit Obligations to be made to a Lender that is in
compliance with any applicable requirements of paragraph (b) below, the
amounts so payable shall be increased to the extent necessary to yield
to the Lenders (after payment or withholding of such Taxes), the
amounts that would have been received had such withholding not been
required. If the Company fails to pay any such Taxes when due or fails
to remit to the Agent for the account of the applicable Lender the
required receipts evidencing payment of any such Taxes so withheld or
deducted, the Company shall indemnify the affected Lender for any
incremental Taxes and interest or penalties that may become payable by
such Lender as a result of any such failure. In the event any Lender
receives a refund of any Taxes for which it has received payment from
the Company under this Section 3.7.2, such Lender shall promptly pay
the amount of such refund to the Company, together with any interest
thereon actually earned by such Lender.
(b) If any Lender is not created or organized in, or under
the laws of, the United States of America or any state thereof, such
Lender shall deliver to the Company and the Agent such duly executed
forms and statements from time to time as may be necessary so that such
Lender is entitled to receive payments of the Credit Obligations
payable to it without deduction or withholding of any United States
federal income taxes, to the extent such exemption is available to such
Lender. If no such exemption is available at the time a Lender becomes
party to this Agreement or if at any time the Company and the Agent
have not received all forms and statements (including any renewals
thereof) required to be provided by any Lender pursuant to this
paragraph (b), paragraph (a) above shall not apply with respect to any
amount of United States federal income taxes required to be withheld
from payments of the Credit Obligations to such Lender.
3.7.3. Capital Adequacy. If any Lender shall reasonably
determine that compliance by such Lender with any Legal Requirement
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regarding capital adequacy of banks or bank holding companies has or
would have the effect of reducing the rate of return on the capital of
such Lender and its Affiliates as a consequence of such Lender's
commitment to make the extensions of credit contemplated hereby, or
such Lender's maintenance of the extensions of credit contemplated
hereby, to a level below that which such Lender could have achieved but
for such compliance (taking into consideration the policies of such
Lender and its Affiliates with respect to capital adequacy immediately
before such compliance and assuming that the capital of such Lender
and its Affiliates was fully utilized prior to such compliance) by an
amount reasonably deemed by such Lender to be material, then such
Lender may claim compensation from the Company under Section 3.7.5.
3.7.4. Regulatory Changes. If any Lender shall determine that
(a) any change in any Legal Requirement (including any new Legal
Requirement) after the date hereof shall directly or indirectly (i)
reduce the amount of any sum received or receivable by such Lender with
respect to the Loan or the Letters of Credit or the return to be earned
by such Lender on the Loan or the Letters of Credit, (ii) impose a cost
on such Lender or any Affiliate of such Lender that is attributable to
the making or maintaining of, or such Lender's commitment to make, its
portion of the Loan or the Letters of Credit, or (iii) require such
Lender or any Affiliate of such Lender to make any payment on, or
calculated by reference to, the gross amount of any amount received by
such Lender under any Credit Document (other than Taxes or income or
franchise taxes), and (b) such reduction, increased cost or payment
shall not be fully compensated for by an adjustment in the Applicable
Rate or the Letter of Credit fees, then such Lender may claim
compensation from the Company under Section 3.7.5.
3.7.5. Compensation Claims. Within 90 days after the receipt
by the Company of a certificate from any Lender setting forth why it
is claiming compensation under this Section 3.7 and computations (in
reasonable detail) of the amount thereof, the Company shall pay to such
Lender such additional amounts as such Lender sets forth in such
certificate as sufficient fully to compensate it on account of the
foregoing provisions of this Section 3.7, together with interest on
such amount from the 90th day after receipt of such certificate until
payment in full thereof at the Overdue Reimbursement Rate. The
determination by such Lender of the amount to be paid to it and the
basis for computation thereof hereunder shall be conclusive so long as
(a) such determination is made in good faith, (b) no manifest error
appears therein and (c) the Lender uses reasonable averaging and
attribution methods. The Company shall be entitled to replace any such
Lender in accordance with Section 12.4.
3.7.6. Mitigation. Each Lender shall take such commercially
reasonable steps as it may determine are not disadvantageous to it,
including changing lending offices to the extent feasible, in order to
reduce amounts otherwise payable by the Company to such Lender pursuant
to Sections 3.2.4 and 3.7 or to make LIBOR Pricing Options available
under Sections 3.2.1 and 3.2.5. In addition, the Company shall not be
responsible for costs (a) under Section 3.7 arising more than 90 days
prior to receipt by the Company of the certificate from the affected
Lender pursuant to such Section 3.5 or (b) under Section 3.2.4 arising
from the termination of LIBOR Pricing Options more than 90 days prior
to the demand by the Agent for payment under Section 3.2.4.
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3.8. Maximum Lawful Interest Rate. All Credit Documents are
expressly limited so that in no event, including the acceleration of the
maturity of the Credit Obligations, shall the amount paid or agreed to be paid
in respect of interest on the Credit Obligations (or fees or other amounts
deemed payment for the use of funds) exceed the maximum permissible amount under
applicable law, as in effect on the date hereof and as subsequently amended or
modified to allow a greater amount of interest (or fees or other amounts deemed
payment for the use of funds) to be paid under the Credit Documents. If for any
reason the amount in respect of interest (or fees or other amounts deemed
payment for the use of funds) required by the Credit Documents exceeds such
maximum permissible amount, the obligation to pay interest under the Credit
Documents (or fees or other amounts deemed payment for the use of funds) shall
be automatically reduced to such maximum permissible amount and any amounts in
respect of interest (or fees or other amounts deemed payment for the use of
funds) previously paid to the Lenders in excess of such maximum permissible
amount shall be automatically applied to reduce the amount of the Loans and
Letter of Credit Exposure.
4. Payment.
4.1. Payment at Maturity. On the Final Revolving Maturity Date, the
Company shall pay to the Agent for credit to the Revolving Loan Account the
entire outstanding principal amount of Indebtedness evidenced thereby, together
with all accrued and unpaid interest with respect thereto, and all other Credit
Obligations owing by it to any Revolving Loan Lender (to the extent not already
paid) in its capacity as a Revolving Loan Lender. On the Final Revolving
Maturity Date, the Swingline Borrower shall pay to the Agent for credit to the
Swingline Loan Account the entire outstanding principal amount of Indebtedness
evidenced thereby, together with all accrued and unpaid interest with respect
thereto. On the Final Term Loan Maturity Date, the Company shall pay to the
Agent for credit against the Term Loan the entire outstanding principal
amount of Indebtedness evidenced thereby, together with all accrued and unpaid
interest with respect thereto and all other Credit Obligations owing by it to
any Term Loan Lender (to the extent not already paid) in its capacity as a Term
Loan Lender. On any accelerated maturity of the Indebtedness evidenced by any
Loan Account, the Company shall pay to the Agent for credit to the Loan Accounts
the entire outstanding principal amount of Indebtedness evidenced thereby,
together with all accrued and unpaid interest with respect thereto, and all
other Credit Obligations owing by it to any Lender.
4.2. Scheduled Required Prepayments. On the last Banking Day of each
March, June, September and December, beginning December 31, 2003, the Company
will pay to the Agent, for the account of the Lenders as a prepayment of the
Term Loan, the lesser of (a) the amount indicated in the table below, adjusted
to the extent required by Sections 4.3 through 4.4 and (b) the principal amount
of the Term Loan then outstanding:
December 31, 2003 $ 375,000
March 31, 2004 $ 375,000
June 30, 2004 $ 375,000
September 30, 2004 $ 375,000
December 31, 2004 $ 375,000
March 31, 2005 $ 375,000
June 30, 2005 $ 375,000
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September 30, 2005 $ 375,000
December 31, 2005 $ 375,000
March 31, 2006 $ 375,000
June 30, 2006 $ 375,000
September 30, 2006 $ 375,000
December 31, 2006 $ 375,000
March 31, 2007 $ 375,000
June 30, 2007 $ 375,000
September 30, 2007 $ 375,000
December 31, 2007 $ 375,000
March 15, 2008 $ 143,625,000
Notwithstanding the foregoing, if the Final Term Loan Maturity Date is extended
from March 15, 2008 until April 15, 2010, then (i) the Company shall not be
required to make the payment otherwise required to be made on March 15, 2008 and
(ii) on the last Banking Day of each March, June, September and December
beginning March 31, 2008, the Company will pay to the Agent, for the account of
the Lenders as a prepayment of the Term Loan, the lesser of (a) the amount
indicated in the table below, adjusted to the extent required by Sections 4.3
through 4.4 and (b) the principal amount of the Term Loan then outstanding:
March 31, 2008 $ 375,000
June 30, 2008 $ 375,000
September 30, 2008 $ 375,000
April 15, 2009 $ 71,250,000
April 15, 2010 $ 71,250,000
4.3. Contingent Required Prepayments.
4.3.1. Excess Credit Exposure. If at any time the sum of the
respective principal amounts of the Revolving Loan plus the Swingline
Loan plus the Letter of Credit Exposure exceeds the Maximum Amount of
Revolving Credit, the Company will promptly pay the amount of such
excess as a prepayment of the Swingline Loan, with any balance as a
prepayment of the Revolving Loan. If at any time Letter of Credit
Exposure exceeds $10,000,000, the Company will promptly pay the amount
of such excess to the Agent to be applied as provided in Section 4.5.
4.3.2. Net Asset Sale Proceeds. Upon receipt of Net Asset
Sale Proceeds that exceed $5,000,000 in any year, the Company shall
within three Banking Days pay to the Agent as a prepayment of the Term
Loan to be applied as provided in Section 4.6.2 the lesser of (a) the
amount by which such Net Asset Sale Proceeds exceed $5,000,000 in such
year or (b) the amount of the Term Loan; provided, however, that the
Company may elect to reserve all or a portion of such Net Asset Sale
Proceeds up to $50,000,000 in the aggregate, for Permitted
Reinvestments. The amount so reserved (the "Permitted Reinvestment
Reserve Amount") must, (i) at any time when the Reference Leverage
Ratio is greater than 3.5, be expended as a Permitted Reinvestment
within 270 days after the transaction creating the Permitted
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Reinvestment Reserve Amount (or, in the case of the repair or
replacement of assets with insurance or condemnation proceeds, must be
firmly committed to be expended) or (ii) at all other times, be
expended as a Permitted Reinvestment within 18 months after
the transaction creating the Permitted Reinvestment Reserve Amount (or
must be firmly committed to be expended, provided that such Permitted
Reinvestment Reserve Amount is expended as a Permitted Reinvestment
within 18 months after the date that such commitment is entered
into). To the extent the Permitted Reinvestment Reserve Amount is not
so expended within such applicable period (or if the Company abandons
its plans for a Permitted Reinvestment prior to the end of such
period), the Company shall within three Banking Days repay the Term
Loan in an amount equal to such unused Permitted Reinvestment Reserve
Amount to be applied as provided in Section 4.6.2.
4.3.3. Net Equity Proceeds. Upon receipt of Net Equity
Proceeds, the Company shall within three Banking Days pay to the Agent
as a prepayment of the Term Loan to be applied as provided in Section
4.6.2 the lesser of (a) the Equity Proceeds Prepayment Percentage of
such Net Equity Proceeds or (b) the amount of the Term Loan.
4.3.4. Net Debt Proceeds. Upon receipt of Net Debt Proceeds
(other than any Net Debt Proceeds received in connection with any
refinancing or redemption of the Company 2008 Notes permitted by
Sections 6.6 and 6.13 or any other refinancing of Financing Debt to the
extent permitted by Sections 6.6 and 6.13, in any case, to the extent
such Net Debt Proceeds are used (i) to redeem in full the Company 2008
Notes or repay in full such other Financing Debt so refinanced, (ii) to
pay any premium applicable to any such early redemption of the 2008
Notes and (iii) to pay the reasonable out-of-pocket transaction fees
and expenses directly associated with such refinancing or redemption),
the Company shall within one Banking Day pay to the Agent as a
prepayment of the Term Loan to be applied as provided in Section 4.6.2
the lesser of (a) the amount of such Net Debt Proceeds or (b) the
amount of the Term Loan.
4.3.5. Excess Cash Flow. Within five Banking Days after the
date annual financial statements have been (or are required to have
been) furnished by the Company to the Lenders in accordance with
Section 6.4.1, the Company shall pay to the Agent as a prepayment of
the Term Loan to be applied as provided in Section 4.6.2 in an amount
equal to the lesser of (a) the ECF Prepayment Percentage of
Consolidated Excess Cash Flow for its most recently completed fiscal
year or (b) the amount of the Term Loan.
4.4. Voluntary Prepayments. In addition to the prepayments required
by Sections 4.2 and 4.3, at any time or from time to time upon not less than one
Banking Day prior written notice to the Agent specifying the date of payment and
the total amount to be paid on such date and, with respect to any prepayment of
the Term Loan, the amount of interest to be paid with such prepayment, the
Company shall have the right to prepay, without premium or penalty of any type
(except as provided in Section 3.2.4), all or any part of its Revolving Loan or
Term Loan in such amounts as are not less than $1,000,000 and in integral
multiples of $500,000, unless such payment is equal to the entire outstanding
principal amount of the Revolving Loan or Term Loan, as the case may be. At any
time or from time to time upon telephone notice to the Swingline Lender, given
not later than 3:00 p.m. (Boston time) on any Banking Day, the Swingline
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Borrower shall have the right to prepay, without premium or penalty of any type,
all or any part of the outstanding principal amount of its Swingline Loan
in such amounts as are not less than $100,000 and in integral multiples of
$50,000, unless such payment is equal to the entire outstanding principal amount
of the Swingline Loan.
4.5. Letters of Credit. If on the stated or any accelerated
maturity of the Credit Obligations the Letter of Credit Issuer or the Lenders
shall be obligated in respect of a Letter of Credit or a draft accepted under a
Letter of Credit, the Company will either:
(a) prepay such obligation by depositing with the Agent an
amount of cash, or
(b) deliver to the Agent a standby letter of credit
(designating the Agent as beneficiary and issued by a bank and on terms
reasonably acceptable to the Agent),
in each case in an amount equal to the portion of the then existing Letter of
Credit Exposure issued for the account of the Company. In addition, to the
extent the amount of Consolidated Excess Cash Flow, Net Asset Sale Proceeds, Net
Debt Proceeds or Net Equity Proceeds to be applied in prepayment of the Loan
exceeds the amount of the Loan, the excess amount thereof that would otherwise
be required to prepay the Loan pursuant to Section 4.3 shall be deposited with
the Agent. Any such cash so deposited and the cash proceeds of any draw under
any standby letter of credit so furnished, including any interest thereon, shall
be returned by the Agent to the Company only when, and to the extent that, the
amount of such cash held by the Agent exceeds the Letter of Credit Exposure at a
time when no Default exists; provided, however, that if an Event of Default
occurs and the Credit Obligations become or are declared immediately due and
payable, the Agent may apply such cash, including any interest thereon, to the
payment of any of the Credit Obligations.
4.6. Reborrowing; Application of Payments, etc.
4.6.1. Reborrowing. The amounts of the Revolving Loan and
Swingline Loan prepaid pursuant to Section 4.4 may be reborrowed from
time to time prior to the Final Revolving Maturity Date in accordance
with Sections 2.1 and 2.2, respectively, subject to the limits set
forth therein.
4.6.2. Order of Application. Prepayments of the Term Loan
made pursuant to Sections 4.3.2, 4.3.3, 4.3.4, 4.3.5 or 4.4 shall be
applied first to the principal amount of the Term Loan Note which is
due on the Final Term Loan Maturity Date and then to the installments
required to be made on the Term Loan pursuant to Section 4.2 in the
inverse order of the maturity thereof. Unless specified by the Company
to the contrary, all prepayments pursuant to Section 4.4 shall be
deemed to apply to the Revolving Loan. Subject to the foregoing,
prepayment of the Revolving Loan or Term Loan shall be applied first
to the portion of such Loan not then subject to LIBOR Pricing Options,
then the balance of any such prepayment shall be applied to the portion
of such Loan then subject to LIBOR Pricing Options, in the
chronological order of the respective maturities thereof (or as the
Company may otherwise specify in writing), together with any payments
required by Section 3.2.4.
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4.6.3. Payment with Accrued Interest, etc. Upon all
prepayments of the Term Loan, the Company shall pay to the Agent the
principal amount to be prepaid, together with unpaid interest in
respect thereof accrued to the date of prepayment. If notice of
prepayment shall have been given in accordance with Section 4.4, and
whether or not notice is given of prepayments pursuant to Sections 4.2
and 4.3, the amount specified to be prepaid shall become due and
payable on the date specified for prepayment in such notice or such
amount.
4.6.4. Payments for Lenders. All payments of principal on the
Revolving Loan and Term Loan hereunder shall be made to the Agent for
the account of the Lenders in accordance with the Lenders' respective
Percentage Interests in the portion of the Loan so repaid and shall be
paid by the Agent to the Lenders in accordance with Section 11.4.3.
5. Conditions to Extending Credit.
5.1. Conditions on Initial Closing Date. The obligations of the
Lenders to make any extension of credit pursuant to Section 2 shall be
subject to the satisfaction, on or before the Initial Closing Date,
of the conditions set forth in this Section 5.1 as well as the further
conditions in Section 5.2. If the conditions set forth in this Section
5.1 are not met on or prior to the Initial Closing Date, the Lenders
shall have no obligation to make any extensions of credit hereunder.
5.1.1. Notes. The Company shall have duly executed and
delivered to the Agent a Revolving Note for each Lender having a
Percentage Interest in such portion of the Revolving Loan, a Term Loan
Note for each Lender having a Percentage Interest in such portion of
the Term Loan and a Swingline Note for the Swingline Lender.
5.1.2. Payment of Fees. The Company shall have paid to the
Agent, the Joint Lead Arrangers, the Co-Arranger, the Syndication Agent
and the Documentation Agent (a) the fees separately agreed between the
Company and the Agent, the Joint Lead Arrangers, the Co-Arranger, the
Syndication Agent and the Documentation Agent that are due and payable
on or before the Initial Closing Date and (b) the reasonable fees and
disbursements of the Agent's special counsel for which statements have
been rendered on or prior to the Initial Closing Date.
5.1.3. Legal Opinions. On the Initial Closing Date, the
Lenders shall have received from the following counsel their respective
opinions with respect to the transactions contemplated by the Credit
Documents, which opinions shall be in form and substance reasonably
satisfactory to the Required Lenders:
(a) Shearman & Sterling LLP, special New York counsel for
the Company.
(b) Baker, Donelson, Bearman & ▇▇▇▇▇▇▇▇, special Tennessee
counsel for the Company.
The Company authorizes and directs its counsel to furnish the foregoing
opinions.
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5.1.4. Foreign Subsidiary Subordination Agreement. Each of the
material Foreign Subsidiaries of the Company shall have entered into a
Subsidiary Subordination Agreement in substantially the form of Exhibit
5.1.4 (the "Foreign Subsidiary Subordination Agreement") and shall have
delivered it to the Agent.
5.1.5. Security Agreement. Each of the Company and the
Guarantors shall have duly authorized, executed and delivered to the
Agent an Amended and Restated Security Agreement in substantially the
form of Exhibit 5.1.5 (the "Security Agreement").
5.1.6. Restatement and Assignment Agreement. The Company and
the Guarantors shall have duly authorized, executed and delivered to
the Agent a Restatement and Assignment Agreement in substantially the
form of Exhibit 5.1.6.
5.1.7. Real Estate Collateral. The Obligors shall have duly
authorized, executed, acknowledged and delivered to the Agent, to the
extent required by the Security Agreement, amendments to the mortgages
delivered pursuant to the Prior Credit Agreement, together with a
date-down endorsement to the lender's title insurance policies
previously delivered to the Agent with respect to such Mortgages, in
each case in form and substance reasonably satisfactory to the Agent,
together with such local counsel legal opinions and other items
relating to such real property collateral as may be required by the
Security Agreement.
5.1.8. Perfection of Security. Each Obligor shall have duly
authorized, executed, acknowledged, delivered, filed, registered and
recorded such security agreements, notices, financing statements,
memoranda of intellectual property security interests and other
instruments as the Agent may have reasonably requested in order to
perfect the Liens purported or required pursuant to the Credit
Documents to be created in the Credit Security and shall have paid all
filing or recording fees or taxes required to be paid in connection
therewith, including any recording, mortgage, documentary, transfer or
intangible taxes.
5.1.9. Capitalization, etc. On the Initial Closing Date,
immediately before and after giving effect to the initial advance under
this Agreement and the transactions contemplated hereby:
(a) The capitalization of the Company (other than the
Revolving Loan and Letters of Credit) will consist of (i) $450,000,000
in Approved Public Debt, (ii) the $30,000,000 Receivables
Securitization Facility, (iii) $5,000,000 of Stac-Pac Notes, (iv)
$1,000,000 in notes to Wachovia Bank, N.A. (v) C$16,000,000 Canadian
Credit Facility, (vi) EURO 7,200,000 German revolving credit facility,
(vii) $1,000,000 notes owing to Wachovia Bank, N.A. (viii) other debt
listed on Exhibit 7.3 and (ix) a minimum of $250,000,000 in
stockholders' equity (excluding the effect of foreign currency
translation adjustments and non-cash charges related to asset
impairments).
(b) The Company shall have obtained all necessary consents,
if any, under the agreements described in paragraph (a) above to permit
this Agreement and the transactions contemplated hereby.
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(c) The ratio of (i) Consolidated Total Net Debt on the
last day of the most recently ended month for which financial reports
are available to (ii) Consolidated EBITDA for the period of 12
consecutive months ended on the last day of such month shall be less
than 6.95:1.00.
(d) After giving effect to the Credit Obligations, the
Company and the Guarantors, taken as a whole:
(i) will be solvent;
(ii) will have assets having a fair saleable value in excess
of the amount required to pay their probable liability on their
existing debts as such debts become absolute and mature;
(iii) will have access to adequate capital for the conduct
of their business; and
(iv) will have the ability to pay their debts from time to
time incurred as such debts mature.
(e) The Company shall have furnished to the Lenders a
certificate of a Financial Officer with respect to the foregoing
clauses of this Section 5.1.9 in substantially the form of Exhibit
5.1.9, which shall include calculations pursuant to Section 7.2.1
demonstrating compliance with the Computation Covenants, in each case
giving pro forma effect to the incurrence of the Credit Obligations.
5.1.10. Credit Rating. The Company shall have obtained a credit
rating on the Credit Agreement from a credit rating agency reasonably
acceptable to the Agent.
5.1.11. Senior Unsecured Notes. The Agent shall have received
copies of all documents reasonably requested relating to the Company
2013 Notes and such documents shall be reasonably satisfactory in form
and substance to the Agent.
5.1.12. Absence of Litigation. There shall not be any
litigation, at law or in equity, or any investigation by or proceeding
before any court, board or other governmental or administrative agency
or any arbitrator pending or, to the knowledge of the Company or any
Guarantor, threatened which is related to the Credit Facilities or the
Company 2013 Notes which may involve any material risk of any final
judgment, order or liability which, without giving effect to any
applicable insurance, has resulted, or is reasonably expected to
result, in any material adverse effect on the creditworthiness of the
Company and its Subsidiaries taken as a whole.
5.1.13. Proper Proceedings. This Agreement, each other Credit
Document and the transactions contemplated hereby and thereby shall
have been authorized by all necessary corporate, partnership or other
proceedings on the part of the Company and the Guarantors. All
necessary consents, approvals and authorizations of any governmental or
administrative agency or any other Person of any of the transactions
contemplated hereby or by any other Credit Document shall have been
obtained and shall be in full force and effect, including without
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limitation a consent under the Company 2008 Notes in form and substance
reasonably satisfactory to the Agent.
5.1.14. General. All legal and corporate proceedings in
connection with the transactions contemplated by this Agreement shall
be reasonably satisfactory in form and substance to the Agent and the
Agent shall have received copies of all documents, including certified
copies of the Charter and By-Laws of the Company and the Guarantors to
the extent there have been material changes to those previously
delivered to the Agent, records of corporate and partnership
proceedings and certificates as to signatures and incumbency of
officers, which the Agent may have reasonably requested in connection
therewith, such documents where appropriate to be certified by proper
corporate or governmental authorities.
5.2. Conditions to Each Extension of Credit. The obligations of the
Lenders to make any extension of credit pursuant to Section 2 shall be
subject to the satisfaction, on or before the Closing Date for such
extension of credit, of the following conditions:
5.2.1. Officer's Certificate. The representations and
warranties contained in Section 7 shall be true and correct on and as
of such Closing Date with the same force and effect as though made on
and as of such date (except as to any representation or warranty which
refers to a specific earlier date); no Default shall exist on such
Closing Date prior to or immediately after giving effect to the
requested extension of credit; no Material Adverse Change (other than
an event described in Exhibit 5.2) shall have occurred since the later
of June 30, 2003; and the Company shall have furnished to the Agent in
connection with the requested extension of credit a certificate to
these effects, in substantially the form of Exhibit 5.2.1, signed by a
Financial Officer.
5.2.2. Legality, etc. The making of the requested extension of
credit shall not be prohibited by any Legal Requirement. If any Lender
is unable to perform its obligations hereunder due to a lending
restriction, the Company shall be entitled to replace such Lender
pursuant to Section 12.4.
6. General Covenants. Each of the Company and the Guarantors covenants
that, until all of the Credit Obligations shall have been paid in full
and until the Lenders' commitments to extend credit under this Agreement and
any other Credit Document shall have been irrevocably terminated, the Company
and its Subsidiaries will comply with the following provisions:
6.1. Taxes and Other Charges; Accounts Payable.
6.1.1. Taxes and Other Charges. Each of the Company and its
Subsidiaries shall duly pay and discharge, or cause to be paid and
discharged, before the same becomes in arrears, all material taxes,
assessments and other governmental charges imposed upon such Person
and its properties, sales or activities, or upon the income or profits
therefrom, as well as all material claims for labor, materials or
supplies which if unpaid might by law become a Lien upon any of its
property; provided, however, that any such tax, assessment, charge or
claim need not be paid if the validity or amount thereof shall at the
time be contested in good faith by appropriate proceedings and if such
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Person shall, in accordance with GAAP, have set aside on its books
adequate reserves with respect thereto; and provided, further, that
each of the Company and its Subsidiaries shall pay or bond, or cause
to be paid or bonded, all such taxes, assessments, charges or other
governmental claims immediately upon the commencement of proceedings
to foreclose any Lien which may have attached as security therefor
(except to the extent such proceedings have been dismissed or stayed).
6.1.2. Accounts Payable. Each of the Company and its
Subsidiaries shall promptly pay when due (taking into account any
applicable grace periods), or in conformity with customary trade terms
and historical practices, all other Indebtedness incident to the
operations of such Person not referred to in Section 6.1.1; provided,
however, that any such Indebtedness need not be paid if the validity or
amount thereof shall at the time be contested in good faith and if such
Person shall, in accordance with GAAP, have set aside on its books
adequate reserves with respect thereto.
6.2. Conduct of Business, etc.
6.2.1. Types of Business. The Company and its Subsidiaries
shall engage principally in the business of (a) specialty cellulose
fibers, (b) nonwoven and air-laid materials and (c) other activities
substantially related thereto.
6.2.2. Maintenance of Properties. Each of the Company and its
Subsidiaries:
(a) shall keep its properties in such repair, working order
and condition, and shall from time to time make such repairs,
replacements, additions and improvements thereto as are necessary for
the efficient operation of its businesses (in its reasonable judgment)
and shall comply at all times in all material respects with all
material franchises, licenses and leases to which it is party so as to
prevent any loss or forfeiture thereof or thereunder, except where
(i) compliance is at the time being contested in good faith by
appropriate proceedings or (ii) failure to comply with the provisions
being contested have not resulted, or do not create a material risk of
resulting, in the aggregate in any Material Adverse Change; and
(b) shall do all things necessary to preserve, renew and
keep in full force and effect and in good standing its legal existence
and authority necessary to continue its business; provided, however,
that this Section 6.2.2 (b) shall not prevent the merger,
consolidation, reorganization, amalgamation or liquidation of
Subsidiaries permitted by Section 6.10.
6.2.3. Statutory Compliance. Each of the Company and its
Subsidiaries shall comply in all material respects with all valid and
applicable statutes, laws, ordinances, zoning and building codes and
other rules and regulations of the United States of America, of the
states and territories thereof and their counties, municipalities and
other subdivisions and of any foreign country or other jurisdictions
applicable to such Person, except where failure so to comply would not
reasonably be expected to result in the aggregate in any Material
Adverse Change; provided, however, that compliance with Environmental
Laws shall be governed solely by Section 6.18.
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6.2.4. Compliance with Material Agreements. Each of the
Company and its Subsidiaries shall comply in all material respects with
the Material Agreements (to the extent not in violation of the other
provisions of this Agreement or any other Credit Document). Without the
prior written consent of the Required Lenders, no Material Agreement so
designated in Exhibit 7.2.2 shall be amended, modified, waived or
terminated in any manner that would have in any material respect an
adverse effect on the interests of the Lenders.
6.3. Insurance.
6.3.1. Business Interruption Insurance. The Company and its
Subsidiaries shall maintain with financially sound and reputable
insurers insurance related to interruption of business, either for loss
of revenues or for extra expense as it relates to the loss of revenues,
in an amount deemed to be adequate in the reasonable business judgment
of the Company for the 12-month period of each insurance policy, which
amount shall be reasonably satisfactory to the Agent, and otherwise in
the manner customary for businesses of similar size engaged in similar
activities at similar locations.
6.3.2. Property Insurance. Each of the Company and its
Subsidiaries shall keep its assets which are of an insurable character
insured by financially sound and reputable insurers against theft and
fraud and against loss or damage by fire, explosion and hazards insured
against by extended coverage to the extent, in amounts and with
deductibles at least as favorable as those generally maintained by
businesses of similar size engaged in similar activities and otherwise
reasonably satisfactory to the Agent.
6.3.3. Liability Insurance. Each of the Company and its
Subsidiaries shall maintain with financially sound and reputable
insurers insurance against liability for hazards, risks and liability
to persons and property, including product liability insurance, to the
extent, in amounts and with deductibles at least as favorable as those
generally maintained by businesses of similar size engaged in similar
activities at similar locations and otherwise reasonably satisfactory
to the Agent; provided, however, that it may effect workers'
compensation insurance or similar coverage with respect to operations
in any particular state or other jurisdiction through an insurance fund
operated by such state or jurisdiction or by meeting the self insurance
requirements of such state or jurisdiction.
6.4. Financial Statements and Reports. Each of the Company and its
Subsidiaries shall maintain a system of accounting in which correct entries
shall be made of all transactions in relation to their business and affairs in
accordance with generally accepted accounting practice. The fiscal year of the
Company and its Subsidiaries shall end on June 30 in each year (except, in the
case of Foreign Subsidiaries, as otherwise required by local foreign law). The
fiscal quarters of the Company and its Subsidiaries shall end on September 30,
December 31, March 31 and June 30 in each year.
6.4.1. Annual Reports. The Company shall furnish to the
Lenders as soon as available, and in any event within 95 days after the
end of each fiscal year, the Consolidated and Consolidating balance
sheets of the Company and its Subsidiaries as at the end of such
fiscal year, the Consolidated and Consolidating statements of income
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and Consolidated statements of changes in shareholders' equity and of
cash flows of the Company and its Subsidiaries for such fiscal year
(all in reasonable detail) and together, in the case of Consolidated
financial statements, with comparative figures for the immediately
preceding fiscal year, all accompanied by:
(a) Unqualified reports of Ernst & Young LLP (or, if they
cease to be auditors of the Company and its Subsidiaries, other
independent certified public accountants of recognized national
standing reasonably satisfactory to the Required Lenders), containing
no material uncertainty, to the effect that they have audited the
foregoing Consolidated financial statements in accordance with
generally accepted auditing standards and that such Consolidated
financial statements present fairly, in all material respects, the
financial position of the Company and its Subsidiaries covered thereby
at the dates thereof and the results of their operations for the
periods covered thereby in conformity with GAAP.
(b) The statement of such accountants that they have caused
this Agreement to be reviewed and that in the course of their audit of
the Company and its Subsidiaries no facts have come to their attention
that cause them to believe that any Default exists and in particular
that they have no knowledge of any Default under Sections 6.5 through
6.17 or, if such is not the case, specifying such Default and the
nature thereof. This statement is furnished by such accountants with
the understanding that the examination of such accountants cannot be
relied upon to give such accountants knowledge of any such Default
except as it relates to accounting or auditing matters within the scope
of their audit.
(c) A certificate of the Company signed by a Financial
Officer to the effect that such officer has caused this Agreement to
be reviewed and has no knowledge of any Default, or if such officer has
such knowledge, specifying such Default and the nature thereof, and
what action the Company has taken, is taking or proposes to take with
respect thereto.
(d) Computations by the Company, substantially in the form
historically prepared by the Company, comparing the financial
statements referred to above with the most recent budget for such
fiscal year furnished to the Lenders in accordance with Section 6.4.4.
(e) Computations by the Company in substantially the form
of Exhibit 6.4 demonstrating, as of the end of such fiscal year,
compliance with the Computation Covenants and the calculation of
Consolidated Excess Cash Flow, certified by a Financial Officer.
(f) Financial information as to the assets of and
Investments of the Company and its Subsidiaries in each Immaterial
Subsidiary as of the end of such fiscal year.
(g) Calculations, as at the end of such fiscal year, of
(i) the Accumulated Benefit Obligations for each Plan covered by Title
IV of ERISA (other than Multiemployer Plans) and (ii) the fair market
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value of the assets of such Plan allocable to such benefits.
(h) Supplements to Exhibits 7.1 and 7.3 showing any changes
in the information set forth in such Exhibits not previously furnished
to the Lenders in writing, which supplement must be reasonably
satisfactory to the Agent, as well as any changes in the Charter,
Bylaws or incumbency of officers of the Company or its Subsidiaries
from those previously certified to the Agent.
(i) In the event of a change in GAAP after June 30, 2003,
computations by the Company, certified by a Financial Officer,
reconciling the financial statements referred to above with financial
statements prepared in accordance with GAAP as applied to the other
covenants in Section 6 and related definitions.
6.4.2. Quarterly Reports. The Company shall furnish to the
Lenders as soon as available and, in any event, within 45 days after
the end of each of the first three fiscal quarters of the Company, the
internally prepared Consolidated balance sheets of the Company and its
Subsidiaries as of the end of such fiscal quarter, the Consolidated
statements of income, of changes in shareholders' equity and of cash
flows of the Company and its Subsidiaries for such fiscal quarter and
for the portion of the fiscal year then ended (all in reasonable
detail) and together, with comparative figures for the same period in
the preceding fiscal year, all accompanied by:
(a) A certificate of the Company signed by a Financial
Officer to the effect that such financial statements have been prepared
in accordance with GAAP and present fairly, in all material respects,
the financial position of the Company and its Subsidiaries covered
thereby at the dates thereof and the results of their operations for
the periods covered thereby, subject only to normal year end audit
adjustments and the addition of footnotes.
(b) A certificate of the Company signed by a Financial
Officer to the effect that such officer has caused this Agreement to be
reviewed and has no knowledge of any Default, or if such officer has
such knowledge, specifying such Default and the nature thereof and what
action the Company has taken, is taking or proposes to take with
respect thereto.
(c) Computations by the Company, substantially in the form
historically prepared by the Company comparing the financial statements
referred to above with the most recent budget for the period covered
thereby furnished to the Lenders in accordance with Section 6.4.4.
(d) Computations by the Company in substantially the form
of Exhibit 6.4 demonstrating, as of the end of such quarter, compliance
with the Computation Covenants, certified by a Financial Officer.
(e) Supplements to Exhibits 7.1 and 7.3 showing any changes
in the information set forth in such Exhibits not previously furnished
to the Lenders in writing, which supplement must be reasonably
satisfactory to the Agent, as well as any changes in the Charter,
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Bylaws or incumbency of officers of the Company and its Subsidiaries
from those previously certified to the Agent.
(f) In the event of a change in GAAP after June 30, 2003,
computations by the Company, certified by a Financial Officer,
reconciling the financial statements referred to above with financial
statements prepared in accordance with GAAP as applied to the other
covenants in Section 6 and related definitions.
6.4.3. Monthly and Weekly Reports.
(a) The Company shall furnish to the Lenders as soon as
available and, in any event, within 30 days after the end of each
month, the internally prepared financial data for such month in the
form prepared by management for its internal purposes.
(b) The Company shall furnish to the Agent on a weekly
basis a description of any Receivables Securitizations consummated
during such week, including calculations showing the accounts
receivable sold pursuant to such Receivables Securitization during such
week, the amount of Receivables Securitization Proceeds received during
such week and such other information with respect to such Receivables
Securitization as the Agent may reasonably request. The Company shall
also furnish to the Agent on a weekly basis a summary of the amount
outstanding under the Canadian Credit Facility.
6.4.4. Other Reports. The Company shall promptly furnish to
the Lenders:
(a) As soon as prepared and in any event before the
beginning of each fiscal year, an annual plan for each fiscal quarter
in such fiscal year of the Company and its Subsidiaries, prepared in a
manner substantially consistent with the Company's historical practices
and with the manner in which the financial projections described in
Section 7.2.1 were prepared.
(b) On at least a quarterly basis, any material updates of
such budget and projections formally prepared by the Company.
(c) Any management letters furnished to the Company or any
of its Subsidiaries by the Company's auditors.
(d) All budgets, projections, statements of operations and
other reports furnished generally to the shareholders of the Company.
(e) Such registration statements, proxy statements and
reports, including Forms ▇-▇, ▇-▇, ▇-▇, ▇-▇, 10-K, 10-Q and 8-K, as may
be filed by the Company or any of its Subsidiaries with the Securities
and Exchange Commission; provided, however, that if any such filing is
available on ▇▇▇▇▇, the Company must only furnish notice of such filing
to the Agent.
(f) Any 90-day letter or 30-day letter from the federal
Internal Revenue Service (or the equivalent notice received from state
or other taxing authorities) asserting tax deficiencies against the
Company or any of its Subsidiaries.
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(g) Progress reports as required under the Fenholloway
River Agreement (whether on a quarterly basis or otherwise).
6.4.5. Notice of Litigation; Notice of Defaults. Except with
respect to matters arising under Environmental Laws for which notices
are required by Section 6.18, the Company shall promptly furnish to the
Lenders notice of any litigation or any administrative or arbitration
proceeding (a) which would reasonably be expected to create a material
risk of resulting, after giving effect to any applicable insurance, in
the payment by the Company and its Subsidiaries of more than $5,000,000
or (b) which results, or would reasonably be expected to create a
material risk of resulting, in a Material Adverse Change. Promptly, and
in any event within seven Banking Days upon acquiring knowledge
thereof, the Company shall notify the Lenders of the existence of any
Default or Material Adverse Change, specifying the nature thereof and
what action the Company or any Subsidiary has taken, is taking or
proposes to take with respect thereto.
6.4.6. ERISA Reports. The Company shall furnish to the Lenders
as soon as reasonably available the following items with respect to
any Plan:
(a) any request for a waiver of the funding standards or an
extension of the amortization period,
(b) any reportable event (as defined in section 4043 of
ERISA), unless the notice requirement with respect thereto has been
waived by regulation,
(c) any notice received by any ERISA Group Person that the
PBGC has instituted or intends to institute proceedings to terminate
any Plan, or that any Multiemployer Plan is insolvent or in
reorganization,
(d) notice of the possibility of the termination of any
Plan by its administrator pursuant to section 4041 of ERISA, and
(e) notice of the intention of any ERISA Group Person to
withdraw, in whole or in part, from any Multiemployer Plan.
6.4.7. Other Information. From time to time at reasonable
intervals upon request of any authorized officer of any Lender, the
Company shall furnish to the Lenders such other information,
substantially consistent in form and substance to information
historically prepared by the Company, regarding the business, assets,
financial condition or income of the Company and its Subsidiaries as
such officer may reasonably request, including copies of all tax
returns and material licenses, agreements, leases and instruments to
which any of the Company or its Subsidiaries is party. The Lenders'
authorized officers and representatives shall have the right during
normal business hours upon reasonable notice and at reasonable
intervals to inspect the properties and to examine the books and
records of the Company and its Subsidiaries and to make copies and
notes therefrom for the purpose of ascertaining compliance with or
obtaining enforcement of this Agreement or any other Credit Document.
Upon the reasonable request of the Agent, the Agent's commercial
finance examiners may conduct field audits of the Company and its
Subsidiaries.
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6.5. Certain Financial Tests.
6.5.1. Consolidated Net Senior Secured Debt to Consolidated
EBITDA. Consolidated Net Senior Secured Debt as of the end of any
fiscal quarter of the Company shall not exceed the applicable
percentage set forth in the table below of Consolidated EBITDA for the
period of four consecutive fiscal quarters then ending:
Fiscal Quarter Ending Percentage
December 31, 2003 225%
March 31, 2004 200%
through June 30, 2004
September 30, 2004 190%
December 31, 2004 180%
through March 31, 2005
June 30, 2005 175%
September 30, 2005 165%
December 31, 2005 160%
Through March 31, 2006
June 30, 2006 150%
and thereafter
6.5.2. Consolidated EBITDA to Consolidated Interest Expense.
For each period of four consecutive fiscal quarters of the Company,
Consolidated EBITDA shall equal or exceed the percentage of
Consolidated Interest Expense set forth in the table below:
Fiscal Quarter Ending Percentage
December 31, 2003 165%
March 31, 2004 175%
through June 30, 2004
September 30, 2004 180%
December 31, 2004 185%
through March 31, 2005
June 30, 2005 190%
September 30, 2005 200%
December 31, 2005 210%
March 31, 2006 220%
June 30, 2006 225%
through March 31, 2007
June 30, 2007 250%
and thereafter
6.5.3. Consolidated EBITDA Minus Capital Expenditure and Taxes
to Consolidated Fixed Charges. For each period of four consecutive
fiscal quarters of the Company, (a) the remainder of Consolidated
EBITDA minus Capital Expenditures of the Company and its Subsidiaries
minus taxes based upon or measured by net income that are actually paid
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in cash shall equal or exceed (b) an amount equal to the percentage of
Consolidated Fixed Charges of the Company and its Subsidiaries set
forth in the table below; provided, however, that for the purpose of
this Section 6.5.3 Capital Expenditures shall exclude (i) up to
$11,000,000 of Capital Expenditures from July 1, 2003 through December
31, 2003 in connection with the maintenance shutdown of the Company's
▇▇▇▇▇, Florida plant and (ii) up to $20,000,000 of Regulated
Environmental Capital Expenditures during any 12-month period:
Fiscal Quarter Ending Percentage
June 30, 2004 110%
through December 31, 2004
March 31, 2005 115%
through March 31, 2006
June 30, 2006 120%
and thereafter
6.5.4. Capital Expenditures. The aggregate amount of Capital
Expenditures (other than Regulated Environmental Capital Expenditures)
for any period of four consecutive fiscal quarters shall not exceed:
(a) $50,000,000 for such periods ending after June 30, 2003
and on or before June 30, 2004;
(b) $55,000,000 for such periods ending after June 30, 2004
and on or before June 30, 2005;
(c) $60,000,000 for such periods ending after June 30, 2005
and on or before June 30, 2006;
(d) $70,000,000 for such periods ending after June 30, 2006
and on or before June 30, 2007; and
(e) $80,000,000 for such periods ending after June 30,
2007;
provided, however, that to the extent that the aggregate amount of
Capital Expenditures during any period specified in clauses (a) through
(e) above is less than the maximum amount permitted during such period,
the excess shall be carried over and added to the limit in any
subsequent period; provided, further, that any amount of Capital
Expenditures in such subsequent period shall be applied first to reduce
the amount carried over from the earliest applicable prior period; and
provided, further, that for purposes of this Section 6.5.6, Capital
Expenditures shall exclude expenditures for capital improvements to the
Company's Americana cotton plant in Brazil using Net Asset Sale
Proceeds from the sale of land, buildings, equipment or other assets
from the Company's facility in Lumberton, North Carolina that are not
required to be paid to the Agent as a prepayment of the Loans pursuant
to Section 4.3.2.
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6.5.5. Regulated Environmental Capital Expenditures. The
aggregate amount of Regulated Environmental Capital Expenditures for
any period of four consecutive fiscal quarters shall not exceed
$20,000,000.
6.6. Indebtedness. Neither the Company nor any of its Subsidiaries
shall create, incur, assume or otherwise become or remain liable with respect
to any Indebtedness including Guarantees of Indebtedness of others and
reimbursement obligations, whether contingent or matured, under letters of
credit or other financial guarantees by third parties, (or become contractually
committed to do so), except the following:
6.6.1. Indebtedness in respect of the Credit Obligations.
6.6.2. Guarantees by the Company and its Subsidiaries of
Indebtedness incurred by its Subsidiaries and permitted by the other
provisions of this Section 6.6.
6.6.3. Current liabilities, other than Financing Debt,
incurred in the ordinary course of business (including (a) accrued
salaries, vacation and benefits, accounts payable for services,
inventory and equipment and other trade accounts payable and (b) such
current liabilities incurred in the ordinary course of business by
Persons acquired by the Company and its Subsidiaries in accordance with
Section 6.8).
6.6.4. To the extent that payment thereof shall not at the
time be required by Section 6.1, Indebtedness in respect of taxes,
assessments, governmental charges and claims for labor, materials and
supplies.
6.6.5. Indebtedness secured by Liens of carriers, warehouses,
mechanics and landlords permitted by Sections 6.7.4 and 6.7.5.
6.6.6. Indebtedness in respect of judgments or awards (a)
which have been in force for less than the applicable appeal period or
(b) in respect of which the Company or any Subsidiary shall at the time
in good faith be prosecuting an appeal or proceedings for review and,
in the case of each of clauses (a) and (b), the Company or such
Subsidiary shall have taken appropriate reserves therefor in accordance
with GAAP and execution of such judgment or award shall not be levied.
6.6.7. To the extent permitted by Section 6.7.8, Indebtedness
in respect of Capitalized Lease Obligations or secured by purchase
money security interests; provided, however, that the aggregate
principal amount of all Indebtedness permitted by this Section 6.6.7
and by Section 6.6.18 at any one time outstanding shall not exceed
$50,000,000, and provided, further, that at any time when the Reference
Leverage Ratio is greater than 3.50, the aggregate principal amount of
all Indebtedness with respect to Capitalized Lease obligations
permitted by this Section 6.6.7 at any one time outstanding shall not
exceed $10,000,000.
6.6.8. Indebtedness in respect of deferred taxes arising in
the ordinary course of business.
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6.6.9. Indebtedness in respect of intercompany loans and
advances among the Company and its Subsidiaries which are not
prohibited by Section 6.8.
6.6.10. Guarantees by the Company of loans by third parties to
its employees in an amount not to exceed $4,000,000 in the aggregate at
any one time outstanding; provided, however, that at any time when the
Reference Leverage Ratio is greater than 3.50, the Company shall not
enter into any additional Guarantees of loans by third parties to its
employees.
6.6.11. Unfunded pension liabilities and obligations with
respect to Plans so long as the Company is in compliance with
Section 6.16.
6.6.12. Indebtedness outstanding on the date hereof and
described in Exhibit 7.3 and all refinancings and extensions thereof
not in excess of the amount thereof outstanding immediately prior to
such refinancing or extension; provided, however, that the Company 2008
Notes may only be refinanced through the issuance of senior
subordinated notes on market terms or through the issuance of other
notes on terms to be agreed among the Company and the Required Lenders;
and provided, further, that the Company may refinance or extend the
Receivables Securitization Facility or enter into a replacement
Receivables Securitization Facility, in each case on market terms and
without any limitation on the amount thereof.
6.6.13. Letters of credit issued by foreign financial
institutions for the account of Foreign Subsidiaries; provided,
however, that the aggregate face amount of all Indebtedness permitted
by this Section 6.6.13 shall not exceed $10,000,000 in the Equivalent
Amount of United States Funds at any one time outstanding and provided,
further, that the aggregate face amount of all Indebtedness permitted
by this Section 6.6.13 plus the aggregate amount of all Indebtedness
permitted by Section 6.6.16 at one time outstanding shall not exceed
$60,000,000 in the Equivalent Amount of United States Funds, computed
as of the most recent date such Indebtedness was incurred.
6.6.14. Unsecured Guarantees by the Guarantors of the Company
2013 Notes, any other Approved Public Debt and any Indebtedness
refinancing Approved Public Debt (to the extent such refinancing is
otherwise permitted hereunder).
6.6.15. Financing Debt and unfunded pension liabilities of
Subsidiaries acquired in accordance with Section 6.8.5 or otherwise
assumed by the Company and its Subsidiaries in acquisitions permitted
by Section 6.8.5 in an aggregate amount not exceeding $15,000,000 for
all such acquisitions after the Initial Closing Date.
6.6.16. Indebtedness of Foreign Subsidiaries in respect of
credit facilities to finance working capital and other valid business
purposes, provided, however that the aggregate amount of all
Indebtedness permitted by this Section 6.6.16 and by Section 6.6.13 at
any time outstanding shall not exceed $60,000,000 in the Equivalent
Amount of United States Funds, computed as of the most recent date such
Indebtedness was incurred.
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6.6.17. Indebtedness in respect of Hedge Agreements entered
into in the ordinary course of business.
6.6.18. Indebtedness of the Company in respect of an industrial
development bond or other special purpose financing for environmental
Capital Expenditures at its ▇▇▇▇▇, Florida plant; provided, however,
that the aggregate principal amount of all Indebtedness permitted by
this Section 6.6.18 and by Section 6.6.7 at any time outstanding shall
not exceed $50,000,000.
6.6.19. Indebtedness (other than Financing Debt) in addition to
the Indebtedness permitted by the other provisions of this Section 6.6;
provided, however, that the aggregate amount of all such Indebtedness
permitted by this Section 6.6.19 at any one time outstanding shall not
exceed $10,000,000; and provided, further, that no Indebtedness shall
be permitted by this Section 6.6.19 at any time when the Reference
Leverage Ratio is greater than 3.50.
6.7. Liens. Neither the Company nor any of its Subsidiaries shall
create, incur or enter into, or suffer to be created or incurred or to exist,
any Lien (or become contractually committed to do so) except the following:
6.7.1. Liens to secure taxes, assessments and other
governmental charges, to the extent that payment thereof shall not at
the time be required by Section 6.1.
6.7.2. Deposits or pledges made (a) in connection with, or to
secure payment of, workers' compensation, unemployment insurance, old
age pensions or other social security, (b) in connection with casualty
insurance maintained in accordance with Section 6.3, (c) to secure the
performance of bids, tenders, contracts (other than contracts relating
to Financing Debt), utilities or leases, (d) to secure statutory
obligations or surety or appeal bonds, (e) to secure indemnity,
performance or other similar bonds in the ordinary course of business
or (f) in connection with contested amounts to the extent that payment
thereof shall not at that time be required by Section 6.1.
6.7.3. Liens in respect of judgments or awards, to the extent
that such judgments or awards are permitted by Section 6.6.6.
6.7.4. Liens of carriers, warehouses, mechanics, suppliers and
similar Liens, in each case (a) in existence less than 90 days from the
later of (i) the date of creation thereof or (ii) the date payment of
Indebtedness secured thereby is due, or (b) being contested in good
faith by the Company or any Subsidiary in appropriate proceedings (so
long as the Company or such Subsidiary shall, in accordance with GAAP,
have set aside on its books adequate reserves with respect thereto).
6.7.5. Encumbrances in the nature of (a) zoning restrictions,
(b) easements, (c) restrictions of record on the use of real property,
(d) landlords' and lessors' Liens on rented premises and
(e) restrictions on transfers or assignment of leases, licenses and
other contracts, which in each case do not materially detract from the
value of the encumbered property or impair the use thereof in the
business of the Company or any Subsidiary.
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6.7.6. Restrictions under federal and state securities laws
and shareholder agreements on the transfer of securities.
6.7.7. Restrictions under foreign trade regulations on the
transfer or licensing of certain assets of the Company and its
Subsidiaries.
6.7.8. Liens constituting (a) purchase money security
interests (including mortgages, conditional sales, Capitalized Leases
and any other title retention or deferred purchase devices) in real
property, interests in leases or tangible personal property
(other than inventory) existing or created on the date on which such
property is acquired or within 90 days thereafter, and (b) the renewal,
extension or refunding of any security interest referred to in the
foregoing clause (a) in an amount not to exceed the amount thereof
remaining unpaid immediately prior to such renewal, extension or
refunding; provided, however, that (i) each such security interest
shall attach solely to the particular item of property so acquired, and
the principal amount of Indebtedness (including Indebtedness in respect
of Capitalized Lease Obligations) secured thereby shall not exceed
the cost (including all such Indebtedness secured thereby, whether or
not assumed) of such item of property; and (ii) the aggregate principal
amount of all Indebtedness secured by Liens permitted by this
Section 6.7.8 shall not exceed the amount permitted by Section 6.6.7.
6.7.9. Liens securing industrial development bonds or other
special purpose financing permitted by Section 6.6.18 on the assets
being acquired, constructed or improved with the proceeds of such
bonds.
6.7.10. Liens securing the Credit Obligations.
6.7.11. Rights of set-off held by any banks.
6.7.12. Liens on foreign assets owned by Foreign Subsidiaries
to secure Indebtedness of Foreign Subsidiaries in respect of credit
facilities permitted by Section 6.6.16.
6.7.13. Pledge of certificates of deposit of the Company
constituting Guarantees permitted by Section 6.6.10.
6.7.14. Liens existing on the Initial Closing Date as described
on Exhibit 7.3, and all subsequent Liens on the same assets to secure
Indebtedness permitted by Section 6.6.12.
6.7.15. Receivables Securitizations permitted by
Section 6.10.6.
6.8. Investments and Acquisitions. Neither the Company nor any of
its Subsidiaries shall have outstanding, acquire, commit itself to acquire
or hold any Investment (including any Investment consisting of the
acquisition of any business) (or become contractually committed to doso) except
for the following:
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6.8.1. Investments of the Company and its Subsidiaries in
Wholly Owned Subsidiaries (a) which are domestic Subsidiaries as of the
date of this Agreement or (b) which become domestic Wholly Owned
Subsidiaries after the Initial Closing Date and become Guarantors to
the extent required by Section 9.9; provided, however, that (i) no such
Investment shall involve the transfer by the Company of any substantial
assets (other than cash) and (ii) (A) the aggregate fair market value
of all assets owned by Immaterial Subsidiaries shall not exceed
$2,000,000 and (B) the aggregate Investments in Immaterial Subsidiaries
shall not exceed $2,000,000.
6.8.2. Intercompany loans and advances from any Subsidiary to
the Company or any Guarantor that, in the case of loans or advances
from Foreign Subsidiaries, are subordinated to the Credit Obligations
in accordance with the Foreign Subsidiary Subordination Agreement.
6.8.3. Investments in Cash Equivalents.
6.8.4. Guarantees permitted by Section 6.6.
6.8.5. So long as immediately before and after giving effect
thereto no Default exists, and so long as the Company (if the Company
is party thereto) or a Guarantor (if the Company is not party thereto)
is the surviving entity, the Company and its Subsidiaries may acquire
another entity in the same line of business as the Company as described
in Section 6.2.1:
(a) at all times when Consolidated Total Net Debt
(calculated on a pro forma basis giving effect to the proposed
acquisition) is greater than 350% of Consolidated EBITDA for the most
recent period of four consecutive fiscal quarters (calculated on a pro
forma basis giving effect to the proposed acquisition as if such
acquisition had been consummated at the beginning of such period) for
which financial reports have been (or are required to have been)
furnished to the Lenders in accordance with Sections 6.4.1 or 6.4.2,
only with the consent of the Required Lenders;
(b) at all other times, for a purchase price not
exceeding, except with the consent of the Required Lenders, $50,000,000
for any single acquisition and $100,000,000 in cumulative aggregate
purchase price for all acquisitions permitted by this Section 6.8.5
during the period from the Initial Closing Date through the later of
the Final Revolving Maturity Date and the Final Term Loan Maturity
Date; provided, however, that (i) the acquisition must be approved by
the target entity's board of directors, (ii) the Company must be in
compliance with the Computation Covenants immediately after giving
effect to such acquisition, (iii) the acquired entity must not have any
environmental liabilities which, after giving effect to such
acquisition, would reasonably be expected to result in a Material
Adverse Change and (iv) any Subsidiary acquired under this Section
6.8.5 (other than (a) a Foreign Subsidiary or (b) any Immaterial
Subsidiary if the aggregate fair market value of the assets of all
Immaterial Subsidiaries acquired under this Section 6.8.5 since the
Initial Closing Date does not exceed $2,000,000 and the aggregate
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Investment of the Company and its other Subsidiaries in all such
acquired Immaterial Subsidiaries is less than $2,000,000) shall
guarantee the Credit Obligations, as contemplated by Section 9.9.
6.8.6. Investments in Unrestricted Affiliates engaged in
businesses contemplated by Section 6.2.1 in an aggregate outstanding
amount not to exceed, at the time any such Investment is made,
(a) $25,000,000 at all times when the Reference Leverage Ratio exceeds
3.50 and (b) $45,000,000 at all other times.
6.8.7. Loans or advances to employees of the Company in an
amount not to exceed (a) $1,000,000 in the aggregate outstanding at any
time for the purchase of capital stock of the Company and
(b) $5,000,000 in the aggregate outstanding at any time for all other
purposes.
6.8.8. So long as immediately before and after giving effect
thereto no Default exists, Investments of the Company and its
Subsidiaries in foreign Wholly Owned Subsidiaries; provided, however,
that:
(a) such Investments shall not involve the transfer of
substantial noncash assets from the Company and its domestic
Subsidiaries to its Foreign Subsidiaries other than up to $35,000,000
in book value of foreign patents, foreign trademarks and an airlaid
machine located in Ireland but owned by the Company; and
(b) net cash Investments of the Company and its domestic
Subsidiaries in Foreign Subsidiaries made pursuant to this Section
6.8.8 at any one time outstanding shall not exceed the sum of
(i) $50,000,000, plus (ii) the amount of Capital Expenditures permitted
by Section 6.5.4 incurred by such Foreign Subsidiaries, plus
(iii) Investments outstanding on the date hereof as described in
Exhibit 6.8.8.
6.8.9. So long as immediately before and after giving effect
thereto no Default exists, and provided that the Company complies with
Section 9.9, the Company may create a Wholly Owned Subsidiary that
constitutes a holding company for the Company's European Subsidiaries.
6.8.10. Investments in any existing or newly-created
Subsidiaries consisting of assets transferred pursuant to
Section 6.10.8
6.9. Distributions. Neither the Company nor any of its Subsidiaries
shall make any Distribution (or become contractually committed to do so) except
for the following:
6.9.1. Subsidiaries of the Company may make Distributions to
the Company or any Wholly Owned Subsidiary of the Company, and the
Company and its Subsidiaries may make Investments permitted by
Section 6.8.
6.9.2. So long as immediately before and after giving effect
thereto no Default exists, the Company may make Distributions in an
aggregate amount which shall not exceed the sum of (i) 50% of the sum
of the Consolidated Net Income (which may be a negative number) for
each fiscal quarter after December 31, 2003, plus (ii) the net amount
received by the Company from the exercise of options and other
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purchases of Company stock after December 31, 2003 by Company employees
plus (iii) (a) $35,000,000 at any time when the Reference Leverage
Ratio is less than 3.50 or (b) $15,000,000 at any time when the
Reference Leverage Ratio is greater than or equal to 3.50, which amount
in this clause (iii) may be applied to pay dividends to stockholders
or to repurchase shares of the Company's capital stock from its
stockholders only after the amounts in clauses (i) and (ii) have
already been applied in their entirety to pay dividends or to make
stock repurchases; provided, however, that the Company shall not make
Distributions to pay dividends on or in respect of any shares of the
Company's capital stock or to repurchase shares of the Company's
capital stock from its stockholders at any time when the Reference
Leverage Ratio is greater than 4.50; and provided, further, that for
the purpose of this Section 6.9.2, Consolidated Net Income shall be
increased by any amounts deducted in calculating Consolidated Net
Income in respect of noncash charges related to asset impairments.
6.9.3. The Company may pay interest on and principal of the
Approved Public Debt and any permitted refinancings thereof in
accordance with the respective payment and subordination provisions
thereof, if any and may make Distributions in respect of any voluntary
prepayments, repurchases or redemptions of the Company 2008 Notes
permitted by Section 6.13.
6.9.4. So long as immediately before and after giving effect
thereto no Default exists, any of the Company and its Subsidiaries may
repay intercompany Indebtedness and interest thereon owing to any of
the Company and its Subsidiaries.
6.9.5. So long as immediately before and after giving effect
thereto no Default exists, the Company may repurchase shares of its
stock from employees whose employment with the Company and its
Subsidiaries has terminated, to the extent required by the Company's
nonqualified employee benefit plans and contracts in an aggregate
amount not exceeding the sum of $1,000,000 in any fiscal year plus net
amounts received by the Company during such fiscal year from the
exercise of options and other purchases of Company stock by employees;
provided, however, that the Company shall not repurchase shares of its
stock from employees pursuant to this Section 6.9.5 at any time when
the Reference Leverage Ratio is greater than 3.50.
6.10. Asset Dispositions and Mergers. Neither the Company nor any of
its Subsidiaries shall merge or enter into a consolidation or sell, lease,
sell and lease back, sublease or otherwise dispose of any of its assets (or
become contractually committed to do so), except the following:
6.10.1. The Company and any of its Subsidiaries may sell or
otherwise dispose of (a) inventory in the ordinary course of business,
(b) tangible assets to be replaced in the ordinary course of business
within 12 months by other tangible assets of equal or greater value,
(c) tangible assets that are no longer used or useful to the business
of the Company or such Subsidiary set forth in Exhibit 6.10.1 hereto
and (d) tangible assets that are no longer used or useful in the
business of the Company or such Subsidiary; provided, however, that the
fair market value of all items so sold or disposed of pursuant to this
clause (d) plus all items sold or disposed of pursuant to Section
6.10.4 shall not exceed $5,000,000 in any fiscal year.
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6.10.2. Any Subsidiary of the Company may merge, amalgamate
or be liquidated or reorganized into the Company or any Wholly Owned
Subsidiary of the Company so long as after giving effect to any such
merger to which the Company or a Guarantor is a party the Company or
(if the Company is not party thereto) a Guarantor shall be the
surviving or resulting Person.
6.10.3. So long as immediately before and after giving effect
thereto no Default exists, the Company may, in addition to
transactions permitted under 6.10.1, sell or otherwise dispose of
assets for fair value; provided, however, that the Company shall make
any prepayments of the Loan required by Section 4.3.2 as a result of
such disposition.
6.10.4. So long as immediately before and after giving effect
thereto no Default exists, the Company may sell or otherwise dispose of
assets for fair market value so long as the fair market value of all
items so sold or disposed of pursuant to this Section 6.10.4 plus all
items sold or disposed of pursuant to Section 6.10.1(d) shall not
exceed $5,000,000 in any fiscal year.
6.10.5. Mergers constituting Investments permitted by
Section 6.8.5.
6.10.6. So long as immediately before and after giving effect
thereto no Default exists, the Company and its Subsidiaries may sell,
pledge or otherwise dispose of a bulk group of its accounts receivables
pursuant to the Receivables Securitization Facility.
6.10.7. Transfers by the Company and its domestic Subsidiaries
of foreign patents, foreign trademarks and other foreign assets to its
Foreign Subsidiaries to the extent permitted by Section 6.8.8.
6.10.8. The Company may transfer assets with a fair market
value not to exceed $6,000,000 from the Company's facility in
Lumberton, North Carolina to any Subsidiary.
6.11. Lease Obligations. Neither the Company nor any of its
Subsidiaries shall be or become obligated as lessee under any lease except:
6.11.1. Capitalized Leases permitted by Sections 6.6.7, 6.7.8
and 6.7.9.
6.11.2. Leases other than Capitalized Leases; provided,
however, that the aggregate fixed rental obligations for any year
(excluding payments required to be made by the lessee in respect of
taxes, insurance and operating expenses whether or not denominated as
rent) shall not exceed $10,000,000.
6.12. Issuance of Stock by Subsidiaries; Subsidiary Distributions,
etc.
6.12.1. Issuance of Stock by Subsidiaries. No Wholly Owned
Subsidiary shall issue or sell any shares of its capital stock or other
evidence of beneficial ownership (except for directors' qualifying
shares and, in the case of Foreign Subsidiaries, shares required to be
held by foreign nationals) to any Person other than the Company or any
Wholly Owned Subsidiary of the Company.
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6.12.2. No Restrictions on Subsidiary Distributions. Except for
this Agreement and the Credit Documents and except as provided in the
credit facilities of the Foreign Subsidiaries permitted by Section
6.15.4 or required by law, neither the Company nor any Subsidiary shall
enter into or be bound by any agreement (including covenants requiring
the maintenance of specified amounts of net worth or working capital)
restricting the right of any Subsidiary to make Distributions or
extensions of credit to the Company (directly or indirectly through
another Subsidiary).
6.12.3. Observance of Corporate Formalities. Except to the
extent permitted by Section 6.2.2(b), the Company's Subsidiaries (other
than Immaterial Subsidiaries) shall observe all Legal Requirements
necessary to preserve their separate existences as independent
corporations, limited partnerships or other entities, including keeping
separate corporate records and financial statements, electing officers
and directors, holding director meetings, formally issuing equity
interests and recording as independent all transactions with the
Company and its other Subsidiaries (other than Immaterial
Subsidiaries), except where the failure to observe any of the
foregoing is not reasonably likely to cause a Material Adverse Effect.
6.13. Voluntary Prepayments of Other Indebtedness.
6.13.1. Except as provided in Section 6.13.2, neither the
Company nor any of its Domestic Subsidiaries shall make any voluntary
prepayment of principal of or interest on any Financing Debt (other
than the Credit Obligations) or make any voluntary redemptions or
repurchases of Financing Debt (other than the Credit Obligations),
except that the Company and its Domestic Subsidiaries may refinance
Financing Debt to the extent permitted by Section 6.6.
6.13.2. Notwithstanding Section 6.13.1, the Company and any of
its domestic Subsidiaries may make voluntary prepayments of principal
of or interest on, or make voluntary redemptions or repurchases of, the
Company 2008 Notes, to the extent permitted by the terms of all
Approved Public Debt, at any time when no Event of Default exists
immediately before and after giving effect thereto and the Reference
Leverage Ratio is less than 3.50; provided, however, that at any time
when the Reference Leverage Ratio is greater than or equal to 3.50 the
Company and its domestic Subsidiaries may make voluntary prepayments of
principal of or interest on, or make voluntary redemptions or
repurchases of, the Company 2008 Notes in an aggregate amount not
exceeding $40,000,000 since the Initial Closing Date; provided,
further, that if the Reference Leverage Ratio decreases below 3.50 and
then subsequently becomes greater than or equal to 3.50, such voluntary
prepayment amount shall not exceed the greater of (a) $40,000,000 in
the aggregate since the Initial Closing Date or (b) the aggregate
amount of such prepayments made at a time when the Reference Leverage
Ratio was less than or equal to 3.50. Notwithstanding the foregoing in
this Section 6.13.2, neither the Company nor any of its domestic
Subsidiaries shall make voluntary prepayments of principal of or
interest on, or make voluntary redemptions or repurchases of, the
Company 2008 Notes at any time when the Reference Leverage Ratio is
greater than 4.50; provided, however, that if, at any time when the
Reference Leverage Ratio is greater than 4.50, the amount outstanding
under the Revolving Loan does not exceed $10,000,000, the Company and
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its domestic Subsidiaries may make voluntary prepayment of principal of
or interest on, or make voluntary redemptions or repurchases of, the
Company 2008 Notes in an aggregate amount not to exceed $20,000,000
since the Initial Closing Date; provided, further, that if the
Reference Leverage Ratio decreases below 4.50 and then subsequently
becomes greater than or equal to 4.50, such voluntary prepayment amount
shall not exceed the greater of (i) $20,000,000 in the aggregate since
the Initial Closing Date or (ii) the aggregate amount of such voluntary
prepayments made at a time when the Reference Leverage Ratio was less
than or equal to 4.50.
6.14. Derivative Contracts. Neither the Company nor any of its
Subsidiaries shall enter into any Hedge Agreement or other financial or
commodity derivative contracts except to provide hedge protection for an
underlying economic transaction in the ordinary course of business.
6.15. Negative Pledge Clauses. Neither the Company nor any of its
Subsidiaries shall enter into any agreement, instrument, deed or lease which
prohibits or limits the ability of the Company or any of its Subsidiaries to
create, incur, assume or suffer to exist any Lien upon any of their respective
properties, assets or revenues, whether now owned or hereafter acquired or
which requires the grant of any collateral for such obligation if collateral is
granted for another obligation, except the following:
6.15.1. This Agreement and the other Credit Documents.
6.15.2. Covenants in documents creating Liens permitted by
Section 6.7 prohibiting further Liens on the assets encumbered thereby.
6.15.3. Covenants in the indentures for the Approved Public
Debt as in effect on the Initial Closing Date and permitted
refinancings thereof.
6.15.4. Covenants in the credit facilities of the Foreign
Subsidiaries permitted by Section 6.6.16 prohibiting further Liens on
the assets of the Foreign Subsidiaries, restrictions required by law
or customary non-assignment provisions.
6.16. ERISA, etc. Each of the Company and its Subsidiaries shall
comply, and shall cause all ERISA Group Persons to comply, in all material
respects, with the provisions of ERISA and the Code applicable to each
Plan. Each of the Company and its Subsidiaries shall meet, and shall cause all
ERISA Group Persons to meet, all minimum funding requirements applicable to
them with respect to any Plan pursuant to section 302 of ERISA or section 412
of the Code, without giving effect to any waivers of such requirements or
extensions of the related amortization periods which may be granted, except if
the failure to comply would not reasonably be expected to result in a Material
Adverse Change. At no time shall the Accumulated Benefit Obligations under any
Plans that are not Multiemployer Plans exceed the fair market value of the
assets of such Plans allocable to such benefits by more than $5,000,000. The
Company and its Subsidiaries shall not withdraw, and shall cause all other
ERISA Group Persons not to withdraw, in whole or in part, from any Multiemployer
Plan so as to give rise to withdrawal liability exceeding $5,000,000 in the
aggregate. At no time shall the actuarial present value of unfunded liabilities
for post-employment health care benefits, whether or not provided under a Plan,
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calculated in a manner consistent with Statement No. 106 of the Financial
Accounting Standards Board, exceed $30,000,000.
6.17. Transactions with Affiliates. Neither the Company nor any of
its Subsidiaries shall effect any transaction with any of their respective
Affiliates (except for the Company and its Subsidiaries) on a basis less
favorable, in the reasonable, good faith judgment of the Company, to the
Company and its Subsidiaries than would be the case if such transaction had
been effected with a non-Affiliate.
6.18. Environmental Laws.
6.18.1. Compliance with Law and Permits. Each of the Company
and its Subsidiaries shall use and operate all of its facilities and
properties in material compliance with all Environmental Laws (for
purposes of this sentence, any such facility that is now or hereafter
listed on the National Priorities List pursuant to procedures described
in 40 C.F.R. ss.300.425 shall be deemed solely for purposes of this
sentence not to be in material compliance with Environmental Laws),
keep all necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and remain
in material compliance therewith, and handle all Hazardous Materials in
material compliance with all applicable Environmental Laws, except
where such failure to use, operate, keep, or handle in compliance would
not reasonably be expected to result in a Material Adverse Change.
6.18.2. Notice of Claims, etc. Each of the Company and its
Subsidiaries shall, as soon as reasonably practicable, notify the
Agent, and provide copies (when applicable) of (a) any failure to
comply with Section 6.18.1 or (b) upon receipt, of all written claims,
complaints, notices or inquiries from governmental authorities relating
to any alleged noncompliance with or liability under Environmental Laws
with respect to the facilities or properties that might reasonably be
expected to result in payments by the Company and its Subsidiaries in
an aggregate amount exceeding $5,000,000 in excess of applicable
insurance.
6.19. Interpretation of Covenants. In Sections 6.6 through 6.19, the
various permitted transactions provided in the subsections to each Section are
cumulative and not exclusive of each other. The Company and its Subsidiaries may
decide in their reasonable discretion which of the various applicable
subsections shall apply to a particular transaction.
7. Representations and Warranties. In order to induce the Lenders to
extend credit to the Company hereunder, each of the Company and such of
its Subsidiaries as are party hereto from time to time jointly and
severally represents and warrants as follows:
7.1. Organization and Business.
7.1.1. The Company. The Company is a duly organized and
validly existing corporation, in good standing under the laws of
Delaware with all power and authority, corporate or otherwise,
necessary to (a) enter into and perform this Agreement and each other
Credit Document to which it is party and (b) own its properties and
carry on the business now conducted by it. Certified copies of the
Charter and By laws of the Company have been previously delivered to
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the Agent and are correct and complete. Exhibit 7.1, as from time to
time hereafter supplemented in accordance with Sections 6.4.1 and
6.4.2, sets forth, as of the later of the date hereof or as of the end
of the most recent fiscal quarter for which financial statements are
required to be furnished in accordance with such Sections, (i) the
jurisdiction of incorporation of the Company, (ii) the address of the
Company's principal executive office and chief place of business,
(iii) each name, including any trade name, under which the Company
conducts its business and (iv) the jurisdictions in which the Company
owns real or tangible personal property.
7.1.2. Subsidiaries. Each Guarantor is duly organized,
validly existing and in good standing under the laws of the
jurisdiction in which it is organized, with all power and authority,
corporate or otherwise, necessary to (a) enter into and perform this
Agreement and each other Credit Document to which it is party,
(b) guarantee the Credit Obligations and (c) own its properties and
carry on the business now conducted by it. Certified copies of the
Charter and By laws of each Subsidiary party hereto have been
previously delivered to the Agent and are correct and complete.
Exhibit 7.1, as from time to time hereafter supplemented in accordance
with Sections 6.4.1 and 6.4.2, sets forth, as of the later of the date
hereof or as of the end of the most recent fiscal quarter for which
financial statements are required to be furnished in accordance with
such Sections, (i) the name and jurisdiction of organization of each
Subsidiary of the Company, (ii) the address of the chief executive
office and principal place of business of each such Subsidiary,
(iii) each name under which each such Subsidiary conducts its
business, (iv) each jurisdiction in which each such Subsidiary owns
real or tangible personal property, (v) the number of authorized and
issued shares and ownership of each such Subsidiary and (vi) whether
such Subsidiary is a Guarantor or an Immaterial Subsidiary.
7.1.3. Qualification. Each of the Company and its Subsidiaries
is duly and legally qualified to do business as a foreign corporation
or other entity and is in good standing in each state or jurisdiction
in which such qualification is required and is duly authorized,
qualified and licensed under all laws, regulations, ordinances or
orders of public authorities, or otherwise, to carry on its business in
the places and in the manner in which it is conducted, except for
failures to be so qualified, authorized or licensed which would not in
the aggregate reasonably be expected to result, or create a material
risk of resulting, in any Material Adverse Change.
7.1.4. Capitalization. No options, warrants, conversion
rights, preemptive rights or other statutory or contractual rights to
purchase shares of capital stock or other securities of any Subsidiary
now exist, nor has any Subsidiary authorized any such right, nor is any
Subsidiary obligated in any other manner to issue shares of its capital
stock or other securities.
7.2. Financial Statements and Other Information; Material
Agreements.
7.2.1. Financial Statements and Other Information. The Company
has previously furnished to the Lenders copies of the following:
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(a) The audited Consolidated balance sheets of the Company
and its Subsidiaries as at June 30 in each of 2002 and 2003 and the
audited Consolidated statements of income, changes in shareholders'
equity and cash flows of the Company and its Subsidiaries for the
fiscal years of the Company then ended.
(b) The unaudited Consolidated balance sheet of the Company
and its Subsidiaries as at September 30, 2003 and the unaudited
Consolidated statements of income, changes in shareholders' equity and
cash flows of the Company and its Subsidiaries for the portion of the
fiscal year then ended.
(c) The Company's report on 10-K for its fiscal year ended
June 30, 2003, as filed with the Securities and Exchange Commission.
(d) The five-year financial and operational projections for
the Company previously supplied to the Lenders and included as part of
the offering memorandum for the initial syndication of the Credit
Obligations.
(e) Calculations demonstrating compliance with the
Computation Covenants as of September 30, 2003.
The audited Consolidated financial statements (including the notes
thereto) referred to in clause (a) above were prepared in accordance with GAAP
and fairly present the financial position of the Company and its Subsidiaries on
a Consolidated basis at the respective dates thereof and the results of their
operations for the periods covered thereby. The unaudited Consolidated financial
statements referred to in clause (b) above were prepared in accordance with GAAP
and fairly present the financial position of the Company and its Subsidiaries at
the respective dates thereof and the results of their operations for the periods
covered thereby, subject to normal year-end audit adjustment and the addition of
footnotes in the case of interim financial statements. Neither the Company nor
any of its Subsidiaries has any known contingent liability material to the
Company and its Subsidiaries on a Consolidated basis which is not reflected in
the balance sheets referred to in clause (a), (b) or (c) above (or delivered
pursuant to Sections 6.4.1 or 6.4.2) or in the notes thereto or otherwise
disclosed to the Agent in writing.
The Form 10-K referred to in clause (c) above contained all information
required to be contained therein and otherwise complied in all material respects
with the Exchange Act. Such Form 10-K did not contain any untrue statement of
material fact or omit to state a material fact necessary in order to make the
statements contained therein not misleading in the light of the circumstances
under which they were made.
In the Company's judgment, the financial and operational projections
referred to in clause (d) above constitute a reasonable basis as of the Initial
Closing Date for the assessment of the future performance of the Company and its
Subsidiaries during the periods indicated therein, it being understood that any
projected financial information represents an estimate, based on various
assumptions, of future results of operations which may or may not in fact occur.
As of the date thereof, the offering memorandum for the initial
syndication of the Credit Obligations did not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements contained therein not misleading in light of the circumstances under
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which they were made; provided, however, that the descriptions in such offering
memorandum of other documents and agreements are intended to be summaries only
and do not provide comprehensive descriptions of the terms and conditions
contained in such documents and agreements.
7.2.2. Material Agreements. The Company has previously
furnished to the Lenders correct and complete copies, including all
exhibits, schedules and amendments thereto, of the agreements and
registration statements, each as in effect on the date hereof, listed
in Exhibit 7.2.2 which constitute all agreements and instruments
material to the Company and its Subsidiaries on a Consolidated basis
(together with the Charters and Bylaws for the Company and its
Subsidiaries, the "Material
Agreements").
7.3. Agreements Relating to Financing Debt, Investments, etc.
Exhibit 7.3, as from time to time hereafter supplemented in accordance with
Sections 6.4.1 and 6.4.2, sets forth:
(a) The amounts (as of the dates indicated in Exhibit 7.3,
as so supplemented) of all Financing Debt of the Company and its
Subsidiaries and all agreements which relate to such Financing Debt.
(b) All Liens and Guarantees with respect to such Financing
Debt.
(c) All agreements which directly or indirectly require the
Company or any Subsidiary to make any Investment.
(d) Material license agreements with respect to the
products of the Company and its Subsidiaries, including the parties
thereto and the expiration dates thereof.
(e) All trademarks, tradenames, service marks, service
names and patents owned by the Company and its Subsidiaries that are
registered with the United States Patent and Trademark Office (or with
respect to which applications for such registration have been filed).
(f) All copyrights owned by the Company and its
Subsidiaries that are registered with the United States Copyright
Office.
(g) All internet domain names owned by the Company and its
Subsidiaries and the related registry information.
(h) All commercial tort claims held by the Company and its
Subsidiaries.
(i) All bank and deposit accounts owned by the Company and
its domestic Subsidiaries.
The Company has furnished the Lenders correct and complete copies of
any agreements described above in this Section 7.3 requested by the Required
Lenders.
7.4. Changes in Condition. Since June 30, 2003 no Material Adverse
Change (other than an event described in Exhibit 5.2) has occurred, and since
the later of June 30, 2003 or the end of the Company's most recently
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completed fiscal year for which financial reports have been furnished
to the Lenders in accordance with Section 6.4.1, neither the Company
nor any Subsidiary of the Company has entered into any material
transaction outside the ordinary course of business except for the
transactions permitted by this Agreement and the Material Agreements or
as described in Exhibit 5.2.
7.5. Title to Assets. The Company and its Subsidiaries have good and
marketable title to, or adequate license or leasehold rights in, all
assets necessary for or used in the operations of their business as now
conducted by them and reflected in the most recent balance sheet referred to in
Section 7.2.1 (or the balance sheet most recently furnished to the Lenders
pursuant to Sections 6.4.1 or 6.4.2), and to all assets acquired subsequent to
the date of such balance sheet, subject to no Liens except for Liens permitted
by Section 6.7 and except for assets disposed of as permitted by Section 6.10.
7.6. Operations in Conformity With Law, etc. The operations of the
Company and its Subsidiaries as now conducted or proposed to be conducted are
not in violation of, nor is the Company or its Subsidiaries in default under,
any Legal Requirement presently in effect and applicable to the Company or such
Subsidiary, except for such violations and defaults as do not and would not
reasonably be expected, in the aggregate, to result, or create a material risk
of resulting, in any Material Adverse Change. The Company has received no notice
of any such violation or default and has no knowledge of any basis on which the
operations of the Company or its Subsidiaries, as now conducted and as currently
proposed to be conducted after the date hereof, would be held so as to violate
or to give rise to any such violation or default.
7.7. Litigation. Except as described in Exhibit 7.7, no litigation,
at law or in equity, or any proceeding before any court, board or other
governmental or administrative agency or any arbitrator is pending or, to the
knowledge of the Company or any Guarantor, threatened which may involve any
material risk of any final judgment, order or liability which, after giving
effect to any applicable insurance, has resulted, or is reasonably expected to
create a material risk of resulting, in any Material Adverse Change or which
seeks to enjoin the consummation, or which questions the validity, of any of the
transactions contemplated by this Agreement or any other Credit Document. No
judgment, decree or order of any court, board or other governmental or
administrative agency or any arbitrator has been issued against or binds the
Company or any of its Subsidiaries which has resulted, or is reasonably likely
to create a material risk of resulting, in any Material Adverse Change.
7.8. Authorization and Enforceability. Each of the Company and each
other Obligor has taken all corporate action required to execute, deliver and
perform this Agreement and each other Credit Document to which it is party. No
consent of stockholders of the Company is necessary in order to authorize the
execution, delivery or performance of this Agreement or any other Credit
Document to which the Company is party. Each of this Agreement and each other
Credit Document constitutes the legal, valid and binding obligation of each
Obligor party thereto and is enforceable against such Obligor in accordance with
its terms except as the enforceability of such documents may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws from
time to time in effect and affecting the rights of creditors generally and by
general principles of equity, good faith and fair dealing.
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7.9. No Legal Obstacle to Agreements. Neither the execution and
delivery of this Agreement or any other Credit Document, nor the making of any
borrowings hereunder, nor the guaranteeing of the Credit Obligations, nor the
securing of the Credit Obligations with the Credit Security, nor the
consummation of any transaction referred to in or contemplated by this Agreement
or any other Credit Document, nor the fulfillment of the terms hereof or thereof
or of any other agreement, instrument, deed or lease contemplated by this
Agreement or any other Credit Document, has constituted or resulted in or will
constitute or result in:
(a) any breach or termination of the provisions of any
agreement, instrument, deed or lease to which the Company, any of its
Subsidiaries or any other Obligor is a party or by which it is bound,
or of the Charter or By laws of the Company, any of its Subsidiaries or
any other Obligor;
(b) the violation in any material respect of any law,
statute, judgment, decree or governmental order, rule or regulation
applicable to the Company, any of its Subsidiaries or any other
Obligor;
(c) the creation under any agreement, instrument, deed or
lease of any Lien (other than Liens which secure the Credit
Obligations) upon any of the assets of the Company, any of its
Subsidiaries or any other Obligor; or
(d) any redemption, retirement or other repurchase
obligation of the Company, any of its Subsidiaries or any other Obligor
under any Charter, By-law, agreement, instrument, deed or lease.
No approval, authorization or other action by, or declaration to or filing with,
any governmental or administrative authority or any other Person is required to
be obtained or made by the Company, any of its Subsidiaries or any other Obligor
in connection with the execution, delivery and performance of this Agreement,
the Notes or any other Credit Document, the transactions contemplated hereby or
thereby, the making of any borrowing hereunder or the guaranteeing of the Credit
Obligations or the securing of the Credit Obligations with the Credit Security
(other than filings necessary to perfect the Agent's security interest in the
Credit Security).
7.10. Defaults. Neither the Company nor any of its Subsidiaries is
in default under any provision of its Charter or By laws or of this Agreement or
any other Credit Document. Neither the Company nor any of its Subsidiaries is in
default under any material provision of any material agreement, instrument, deed
or lease to which it is party or by which it or its property is bound. Neither
the Company nor any of its Subsidiaries has violated any law, judgment, decree
or governmental order, rule or regulation, in each case so as to result, or to
be reasonably expected to create a material risk of resulting, in any Material
Adverse Change.
7.11. Licenses, etc. The Company and its Subsidiaries have all
patents, patent applications, patent licenses, patent rights, trademarks,
trademark rights, trade names, trade name rights, copyrights, licenses,
franchises, permits, authorizations and other rights as are necessary for the
conduct of the business of the Company and its Subsidiaries as now conducted by
them. All of the foregoing are in full force and effect in all material
respects, and each of the Company and its Subsidiaries is in substantial
compliance with the foregoing without any known conflict with the valid rights
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of others which has resulted, or is reasonably likely to create a material risk
of resulting, in any Material Adverse Change. No event has occurred which
permits, or after notice or lapse of time or both would permit, the revocation
or termination of any such license, franchise or other right or which affects
the rights of any of the Company and its Subsidiaries thereunder so as to
result, or is reasonably expected to create a material risk of resulting, in any
Material Adverse Change. Except as described in Exhibit 7.7, no litigation or
other proceeding or dispute exists with respect to the validity or, where
applicable, the extension or renewal, of any of the foregoing which has
resulted, or is reasonably likely to create a material risk of resulting, in any
Material Adverse Change.
7.12. Tax Returns. Each of the Company and its Subsidiaries has
filed all material tax and information returns which are required to be filed by
it and has paid, or made adequate provision for the payment of, all taxes which
have become due pursuant to such returns or to any assessment received by it,
except with respect to those taxes that the Company or its Subsidiaries are
contesting in good faith. Neither the Company nor any of its Subsidiaries knows
of any material additional assessments or any basis therefor. The Company
reasonably believes that the charges, accruals and reserves on the books of the
Company and its Subsidiaries in respect of taxes or other governmental charges
are adequate.
7.13. Certain Business Representations.
7.13.1. Labor Relations. No dispute or controversy between the
Company or any of its Subsidiaries and any of their respective employees
has resulted, or is reasonably likely to result, in any Material Adverse
Change, and neither the Company nor any of its Subsidiaries anticipates
that its relationships with its unions or employees will result, or are
reasonably likely to result, in any Material Adverse Change. The
Company has not experienced a strike or other labor interruption in the
past five years. The Company and each of its Subsidiaries is in
compliance in all material respects with all federal and state laws
with respect to (a) non discrimination in employment with which the
failure to comply, in the aggregate, has resulted, or is reasonably
likely to create a material risk of resulting, in a Material Adverse
Change and (b) the payment of wages.
7.13.2. Antitrust. Each of the Company and its Subsidiaries is
in compliance in all material respects with all federal and state
antitrust laws relating to its business and the geographic
concentration of its business.
7.13.3. Consumer Protection. Neither the Company nor any of its
Subsidiaries is in violation of any rule, regulation, order, or
interpretation of any rule, regulation or order of the Federal Trade
Commission (including truth-in-lending), with which the failure to
comply, in the aggregate, has resulted, or is reasonably likely to
create a material risk of resulting, in a Material Adverse Change.
7.13.4. Burdensome Obligations. Neither the Company nor any of
its Subsidiaries is party to or bound by any agreement, instrument,
deed or lease or is subject to any Charter, By law or other restriction,
commitment or requirement which, in the opinion of the management of
such Person, is so unusual or burdensome as in the foreseeable future to
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result, or to be reasonably likely to create a material risk of
resulting, in a Material Adverse Change.
7.13.5. Future Expenditures. Neither the Company nor any of its
Subsidiaries anticipate that the future expenditures, if any, by the
Company and its Subsidiaries needed to meet the provisions of any
federal, state or foreign governmental statutes, orders, rules or
regulations will be so burdensome as to result, or create a material
risk of resulting, in any Material Adverse Change.
7.14. Environmental Regulations. Except to the extent set forth in
Exhibit 7.14:
7.14.1. Environmental Compliance. Each of the Company and its
Subsidiaries is in compliance in all material respects with the
Environmental Laws in effect in any jurisdiction in which any properties
of the Company or any of its Subsidiaries are located or where any of
them conducts its business, and with all applicable published rules and
regulations (and applicable standards and requirements) of the federal
Environmental Protection Agency and of any similar agencies in states or
foreign countries in which the Company or its Subsidiaries conducts its
business other than those which in the aggregate have not resulted, and
do not create a material risk of resulting, in a Material Adverse
Change.
7.14.2. Environmental Litigation. As of the date hereof and
except where any matter described in clauses (i) or (ii) would not
reasonably be expected to result in a Material Adverse Change, (i) no
suit, claim, action or proceeding of which the Company or any of its
Subsidiaries has been given notice or otherwise has knowledge is now
pending before any court, governmental agency or board or other forum,
or to the Company's or any of its Subsidiaries' knowledge, threatened by
any Person (nor to the Company's or any of its Subsidiaries' knowledge,
does any factual basis exist therefor), and (ii) neither the Company
nor any of its Subsidiaries have received written correspondence from
any federal, state or local governmental authority with respect to:
(a) noncompliance by the Company or any of its Subsidiaries
with any Environmental Law;
(b) personal injury, wrongful death or other tortious
conduct relating to materials, commodities or products used, generated,
sold, transferred or manufactured by the Company or any of its
Subsidiaries (including products made of, containing or incorporating
asbestos, lead or other hazardous materials, commodities or toxic
substances); or
(c) the release into the environment by the Company or any
of its Subsidiaries of any Hazardous Material generated by the Company
or any of its Subsidiaries whether or not occurring at or on a site
owned, leased or operated by the Company or any of its Subsidiaries.
7.14.3. Hazardous Material. The disposal or arrangement for
disposal at any waste disposal or dump sites at which Hazardous Material
generated by either the Company or any of its Subsidiaries has been
disposed of directly by the Company or any of its Subsidiaries and all
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independent contractors to whom the Company or any of its Subsidiaries
have delivered Hazardous Material for disposal, or to the Company's or
any of its Subsidiaries' knowledge, where Hazardous Material finally
came to be located, has not resulted, and would not reasonably be
expected to result in a Material Adverse Change.
7.14.4. Environmental Condition of Properties. No release of
any Hazardous Material is present in any real property currently or
formerly owned or operated by the Company or any of its Subsidiaries
except that which has not resulted, and could not reasonably be expected
to result in a Material Adverse Change.
7.14.5. No Other Representations and Warranties. The
representations and warranties in this Section 7.14 constitute the sole
and exclusive representations and warranties of the Company and its
Subsidiaries with respect to all matters arising under Environmental
Laws.
7.15. Pension Plans. Each Plan (other than a Multiemployer Plan) and,
to the knowledge of the Company and its Subsidiaries, each Multiemployer Plan
is in material compliance with the applicable provisions of ERISA and the Code.
As of the date hereof, each Multiemployer Plan and each Plan that constitutes a
"defined benefit plan" (as defined in ERISA) are set forth in Exhibit 7.15.
Each ERISA Group Person has met all of the funding standards applicable to all
Plans that are not Multiemployer Plans, and no condition exists which would
permit the institution of proceedings to terminate any Plan that is not a
Multiemployer Plan under section 4042 of ERISA. To the best knowledge of the
Company and each Subsidiary, no Plan that is a Multiemployer Plan is currently
insolvent or in reorganization or has been terminated within the meaning of
ERISA.
7.16. Government Regulation; Margin Stock
7.16.1. Government Regulation. Neither the Company nor any of
its Subsidiaries, nor any Person controlling the Company or any of its
Subsidiaries or under common control with the Company or any of its
Subsidiaries, is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Investment Company Act,
the Interstate Commerce Act or any statute or regulation which regulates
the incurring by the Company or any of its Subsidiaries of Financing
Debt as contemplated by this Agreement and the other Credit Documents.
7.16.2. Margin Stock. Neither the Company nor any of its
Subsidiaries owns any Margin Stock in excess of 25% of the value of the
assets subject to any negative pledge arrangement or covenants
restricting asset sales.
7.17. Disclosure. Neither this Agreement nor any other Credit Document
to be furnished to the Lenders by or on behalf of the Company or any of its
Subsidiaries in connection with the transactions contemplated hereby or by such
Credit Document contains any untrue statement of material fact or omits to state
a material fact necessary in order to make the statements contained herein or
therein not misleading in light of the circumstances under which they were made.
No fact is actually known to the Company or any of its Subsidiaries which has
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not been disclosed in writing to the Lenders and which has resulted, or in the
future (so far as the Company or any of its Subsidiaries can reasonably foresee)
will result, or is reasonably expected to create a material risk of resulting,
in any Material Adverse Change, except to the extent that present or future
general economic conditions may result in a Material Adverse Change.
7.18. Solvency. The Company and the Guarantors, taken as a whole:
(a) are solvent;
(b) have assets having a fair saleable value in excess of
the amount required to pay their probable liability on their existing
debts as such debts become absolute and mature;
(c) have access to adequate capital for the conduct of
their business; and
(d) have the ability to pay their debts from time to time
incurred as such debts mature.
8. Defaults.
8.1. Events of Default. The following events are referred to as
"Events of Default":
8.1.1. Payment. The Company shall fail to make any payment in
respect of: (a) interest or any fee on or in respect of any of the
Credit Obligations owed by it as the same shall become due and payable,
and such failure shall continue for a period of three Banking Days, or
(b) any Credit Obligation with respect to payments made by any Letter of
Credit Issuer under any Letter of Credit or any draft drawn thereunder
within three Banking Days after demand therefor by such Letter of Credit
Issuer or (c) principal of any of the Credit Obligations owed by it as
the same shall become due, whether at maturity or by acceleration or
otherwise.
8.1.2. Specified Covenants. The Company or any of its
Subsidiaries shall fail to perform or observe any of the provisions of
Sections 6.5 through 6.15.
8.1.3. Other Covenants. The Company, any of its Subsidiaries
or any other Obligor, shall fail to perform or observe any covenant,
agreement or provision to be performed or observed by it under this
Agreement or any other Credit Document (other than covenants, agreements
or provisions with which the failure to comply would constitute an Event
of Default under Sections 8.1.2, 8.1.9, 8.1.10 or 8.1.11), and such
failure shall not be rectified or cured to the written satisfaction of
the Required Lenders, in the case of the failure to perform or observe
any other covenant, agreement or provision, in either case within 30
days after the earlier of (a) notice thereof by the Agent to the Company
or (b) a Financial Officer shall have actual knowledge thereof.
8.1.4. Representations and Warranties. Any representation or
warranty of or with respect to the Company, any of its Subsidiaries or
any other Obligor made to the Lenders or the Agent in, pursuant to or in
connection with this Agreement or any other Credit Document shall be
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false in any material respect on the date as of which it was made.
8.1.5. Cross Default, etc.
(a) The Company or any of its Subsidiaries shall fail to
make any payment when due (after giving effect to any applicable grace
periods) in respect of any Financing Debt (other than the Credit
Obligations or the Stac-Pac notes described in Exhibit 7.7) outstanding
in an aggregate amount of principal (whether or not due) and accrued
interest exceeding $10,000,000;
(b) the Company or any of its Subsidiaries shall fail to
perform or observe the terms of any agreement or instrument relating to
such Financing Debt, and such failure shall continue, without having
been duly cured, waived or consented to, beyond the period of grace, if
any, specified in such agreement or instrument, and such failure shall
permit the acceleration of such Financing Debt;
(c) all or any part of such Financing Debt of the Company
or any of its Subsidiaries shall be accelerated or shall become due or
payable prior to its stated maturity for any reason whatsoever;
(d) any Lien on any property of the Company or any of its
Subsidiaries securing any such Financing Debt shall be enforced by
foreclosure or similar action and (i) within 30 days thereafter, such
enforcement or similar action shall not have been discharged, vacated,
bonded or stayed or (ii) within 30 days after the expiration of any such
stay, such enforcement or similar action shall not have been discharged,
vacated or bonded; or
(e) any holder of any such Financing Debt shall exercise
any right of rescission or put right with respect thereto.
8.1.6. Ownership; Liquidation; etc. Except as permitted by
Section 6.10:
(a) the Company shall cease to own, directly or indirectly,
all the capital stock of its Wholly Owned Subsidiaries (other than
director's qualifying shares and, in the case of Foreign Subsidiaries,
shares required to be owned by foreign nationals);
(b) (i) any "person" or "group" (as such terms are used in
sections 13(d) and 14(d) of the Exchange Act), other than the current
members of the Company's management who directly (or indirectly through
Affiliates) own capital stock of the Company is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act except that a Person shall be deemed to have "beneficial
ownership" of all securities that such Person has the right to acquire,
whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of more than 35% of the total voting
stock of the Company;
(ii) the Company consolidates with, or mergers with
or into, another Person or sells, assigns, conveys, transfers, leases
or otherwise disposes of all or substantially all of its assets to any
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Person, or any Person consolidates with, or merges with or into, the
Company, in any such event pursuant to a transaction in which any
voting stock of the Company is reclassified or changed into or
exchanged for cash, securities or other property, other than any such
transaction where (A) any voting stock of the Company is reclassified
or changed into or exchanged for voting stock (other than redeemable
capital stock) of the surviving or transferee corporation and (B)
immediately after such transaction no "person" or "group" (as such
terms are used in sections 13(d) and 14(d) of the Exchange Act), other
than the current members of the Company's management who directly (or
indirectly through Affiliates) own capital stock of the Company, is the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a Person shall be deemed to have "beneficial
ownership" of all securities that such Person has the right to acquire,
whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of more than 35% of the total voting
stock of the surviving or transferee corporation;
(iii) during any consecutive two-year period,
individuals who at the beginning of such period constituted the board
of directors of the Company (together with any new directors whose
election by such board of directors or whose nomination for election by
the stockholders of the Company was approved by a vote of two thirds of
the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
majority of the board of directors of the Company then in office; or
(iv) any final order, judgment or decree of a court
of competent jurisdiction shall be entered against the Company
decreeing the dissolution or liquidation of the Company; or
(c) the Company or any of its Subsidiaries or any other
Obligor shall initiate any action to dissolve, liquidate or otherwise
terminate its existence.
8.1.7. Enforceability, etc. Any Credit Document shall cease
for any reason (other than the scheduled termination thereof in
accordance with its terms) to be enforceable in accordance with its
terms or in full force and effect; or any party to any Credit Document
shall so assert in a judicial or similar proceeding; or the security
interests (if any) created by this Agreement or any other Credit
Documents shall cease to be enforceable and of the same effect and
priority purported to be created hereby.
8.1.8. Judgments. A final judgment (a) which, with other
outstanding final judgments against the Company and its Subsidiaries,
exceeds an aggregate of $5,000,000 in excess of applicable insurance
coverage shall be rendered against the Company or any of its
Subsidiaries, or (b) which grants injunctive relief that results, or is
reasonably likely to create a material risk of resulting, in a Material
Adverse Change and in either case if, (i) within 30 days after entry
thereof, such judgment shall not have been discharged or execution
thereof stayed pending appeal or (ii) within 30 days after the
expiration of any such stay, such judgment shall not have been
discharged.
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8.1.9. ERISA. Any "reportable event" (as defined in section
4043 of ERISA) shall have occurred that reasonably could be expected
to result in termination of a Plan or the appointment by the appropriate
United States District Court of a trustee to administer any Plan or the
imposition of a Lien in favor of a Plan; or any ERISA Group Person shall
fail to pay when due amounts aggregating in excess of $5,000,000 which
it shall have become liable to pay to the PBGC or to a Plan under Title
IV of ERISA; or notice of intent to terminate a Plan shall be filed
under Title IV of ERISA by any ERISA Group Person or administrator; or
the PBGC shall institute proceedings under Title IV of ERISA to
terminate or to cause a trustee to be appointed to administer any Plan
or a proceeding shall be instituted by a fiduciary of any Plan against
any ERISA Group Person to enforce section 515 or 4219(c)(5) of ERISA and
such proceeding shall not have been dismissed within 30 days
thereafter; or a condition shall exist by reason of which the PBGC would
be entitled to obtain a decree adjudicating that any Plan must be
terminated.
8.1.10. Bankruptcy, etc. The Company, any of its Subsidiaries
or any other Obligor shall:
(a) commence a voluntary case under the Bankruptcy Code or
authorize, by appropriate proceedings of its board of directors or other
governing body, the commencement of such a voluntary case;
(b) (i) have filed against it a petition commencing an
involuntary case under the Bankruptcy Code that shall not have been
dismissed within 60 days after the date on which such petition is filed,
or (ii) file an answer or other pleading within such 60-day period
admitting or failing to deny the material allegations of such a petition
or seeking, consenting to or acquiescing in the relief therein provided,
or (iii) have entered against it an order for relief in any involuntary
case commenced under the Bankruptcy Code;
(c) seek relief as a debtor under any applicable law, other
than the Bankruptcy Code, of any jurisdiction relating to the
liquidation or reorganization of debtors or to the modification or
alteration of the rights of creditors, or consent to or acquiesce in
such relief;
(d) have entered against it an order by a court of
competent jurisdiction (i) finding it to be bankrupt or insolvent,
(ii) ordering or approving its liquidation or reorganization as a debtor
or any modification or alteration of the rights of its creditors or
(iii) assuming custody of, or appointing a receiver or other custodian
for, all or a substantial portion of its property;
(e) make an assignment for the benefit of, or enter into a
composition with, its creditors, or appoint, or consent to the
appointment of, or suffer to exist a receiver or other custodian for,
all or a substantial portion of its property; or
(f) have admitted or acknowledged in writing that it is
unable to pay its debts as they come due.
8.1.11. Environmental Matters. The Company or any of its
Subsidiaries shall fail to comply with any Environmental Law in effect
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in any jurisdiction in which any properties of the Company or any of its
Subsidiaries are located or where any of them conducts its business,
which failure would be reasonably likely to result in or create a
material risk of resulting in a Material Adverse Change and within 30
days after such noncompliance, the Company or its Subsidiaries shall
continue to be out of compliance with such Environmental Law; provided,
however, that such 30-day period may be extended for up to an additional
150 days so long as (a) such noncompliance is reasonably capable of cure
within such 150-day period, and the Company and its Subsidiaries shall
have commenced, and shall continue to pursue diligently, a cure for such
noncompliance and (b) no Material Adverse Change shall have occurred.
8.2. Certain Actions Following an Event of Default. If any one or
more Events of Default shall occur, then in each and every such case:
8.2.1. Terminate Obligation to Extend Credit. Upon request of
the Required Lenders, the Agent on behalf of the Lenders shall terminate
the obligations of the Lenders to make any further extensions of credit
under the Credit Documents by furnishing notice of such termination to
the Company; provided, however, that if a Bankruptcy Default shall have
occurred, the obligations of the Lenders to make any further extensions
of credit under the Credit Documents shall automatically terminate.
8.2.2. Specific Performance; Exercise of Rights. Upon request
of the Required Lenders, the Agent on behalf of the Lenders shall
proceed to protect and enforce the Lenders' rights by suit in equity,
action at law and/or other appropriate proceeding, either for specific
performance of any covenant or condition contained in this Agreement or
any other Credit Document (other than Hedge Agreements) or in any
instrument or assignment delivered to the Lenders pursuant to this
Agreement or any other Credit Document (other than Hedge Agreements), or
in aid of the exercise of any power granted in this Agreement or any
other Credit Document (other than Hedge Agreements) or any such
instrument or assignment.
8.2.3. Acceleration. Upon request of the Required Lenders,
the Agent on behalf of the Lenders shall by notice in writing to the
Company (a) declare all or any part of the unpaid balance of the Credit
Obligations then outstanding (other than Hedge Agreements) to be
immediately due and payable, and (b) require the Company immediately to
deposit with the Agent in cash an amount equal to the then Letter of
Credit Exposure (which cash shall be held and applied as provided in
Section 4.5), and thereupon such unpaid balance or part thereof and such
amount equal to the Letter of Credit Exposure shall become so due and
payable without presentation, protest or further demand or notice of any
kind, all of which are hereby expressly waived; provided, however, that
if a Bankruptcy Default shall have occurred, the unpaid balance of the
Credit Obligations (other than Hedge Agreements) shall automatically
become immediately due and payable.
8.2.4. Enforcement of Payment; Credit Security; Setoff. Upon
request of the Required Lenders, the Agent on behalf of the Lenders
shall proceed to enforce payment of the Credit Obligations in such
manner as it may elect, and to cancel, or instruct other Letter of
Credit Issuers to cancel, any outstanding Letters of Credit which permit
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the cancellation thereof and to realize upon any and all rights in the
Credit Security. The Lenders and their Affiliates may offset and apply
toward the payment of the Credit Obligations (and/or toward the curing
of any Event of Default) any Indebtedness from the Lenders to the
respective Obligors, including any Indebtedness represented by deposits
in any account maintained with the Lenders, regardless of the adequacy
of any security for the Credit Obligations. The Lenders shall have no
duty to determine the adequacy of any such security in connection with
any such offset.
8.2.5. Cumulative Remedies. To the extent not prohibited by
applicable law which cannot be waived, all of the Lenders' rights
hereunder and under each other Credit Document shall be cumulative.
8.3. Annulment of Defaults. Once an Event of Default has occurred,
such Event of Default shall be deemed to exist and be continuing for all
purposes of the Credit Documents (other than Hedge Agreements) until the
Required Lenders or the Agent (with the consent of the Required Lenders) shall
have waived such Event of Default in writing, stated in writing that the same
has been cured to such Lenders' reasonable satisfaction or entered into an
amendment to this Agreement which by its express terms cures such Event of
Default, at which time such Event of Default shall no longer be deemed to exist
or to have continued. No such action by the Lenders or the Agent shall extend to
or affect any subsequent Event of Default or impair any rights of the Lenders
upon the occurrence thereof. The making of any extension of credit during
the existence of any Default shall not constitute a waiver thereof.
8.4. Waivers. To the extent that such waiver is not prohibited by
the provisions of applicable law that cannot be waived, each of the Company
and the other Obligors waives:
(a) all presentments, demands for performance, notices of
nonperformance (except to the extent required by this Agreement or any
other Credit Document), protests, notices of protest and notices of
dishonor;
(b) any requirement of diligence or promptness on the part
of any Lender in the enforcement of its rights under this Agreement, the
Notes or any other Credit Document;
(c) any right it may have to claim or recover from the
Agent or any Lender any special, exemplary, punitive or consequential
damages;
(d) any and all notices of every kind and description
which may be required to be given by any statute or rule of law; and
(e) any defense (other than indefeasible payment in full)
which it may now or hereafter have with respect to its liability under
this Agreement, the Notes or any other Credit Document or with respect
to the Credit Obligations.
9. Guarantees.
9.1. Guarantees of Credit Obligations. Each Guarantor
unconditionally jointly and severally guarantees that the Credit Obligations
will be performed and will be paid in full in cash when due and payable,
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whether at the stated or accelerated maturity thereof or otherwise, this
guarantee being a guarantee of payment and not of collectability and being
absolute and in no way conditional or contingent. In the event any part of the
Credit Obligations shall not have been so paid in full when due and payable,
each Guarantor will, immediately upon notice by the Agent or, without notice,
immediately upon the occurrence of a Bankruptcy Default, pay or cause to be
paid to the Agent for the account of each Lender in accordance with the Lenders'
respective Percentage Interests the amount of such Credit Obligations which are
then due and payable and unpaid. The obligations of each Guarantor
hereunder shall not be affected by the invalidity, unenforceability or
irrecoverability of any of the Credit Obligations as against any other
Obligor, any other guarantor thereof or any other Person. For purposes
hereof, the Credit Obligations shall be due and payable when and as the
same shall be due and payable under the terms of this Agreement or any
other Credit Document notwithstanding the fact that the collection or
enforcement thereof may be stayed or enjoined under the Bankruptcy Code
or other applicable law.
9.2. Continuing Obligation. Each Guarantor acknowledges that the
Lenders and the Agent have entered into this Agreement (and, to the extent that
the Lenders or the Agent may enter into any future Credit Document, will
have entered into such agreement) in reliance on this Section 9 being a
continuing irrevocable agreement, and such Guarantor agrees that its
guarantee may not be revoked in whole or in part. The obligations of
the Guarantors hereunder shall terminate when the commitment of the Lenders to
extend credit under this Agreement shall have terminated and all of the Credit
Obligations have been paid in full in cash and discharged; provided, however,
that:
(a) if a claim is made upon the Lenders at any time for
repayment or recovery of any amounts or any property received by the
Lenders from any source on account of any of the Credit Obligations and
the Lenders repay or return any amounts or property so received
(including interest thereon to the extent required to be paid by the
Lenders) or
(b) if the Lenders become liable for any part of such claim
by reason of (i) any judgment or order of any court or administrative
authority having competent jurisdiction, or (ii) any settlement or
compromise of any such claim,
then the Guarantors shall remain liable under this Agreement for the amounts so
repaid or property so returned or the amounts for which the Lenders become
liable (such amounts being deemed part of the Credit Obligations) to the same
extent as if such amounts or property had never been received by the Lenders,
notwithstanding any termination hereof or the cancellation of any instrument or
agreement evidencing any of the Credit Obligations. Not later than five days
after receipt of notice from the Agent, the Guarantors shall jointly and
severally pay to the Agent an amount equal to the amount of such repayment or
return for which the Lenders have so become liable. Payments hereunder by a
Guarantor may be required by the Agent on any number of occasions.
9.3. Waivers with Respect to Credit Obligations. Except to the
extent expressly required by this Agreement or any other Credit Document, each
Guarantor waives, to the fullest extent permitted by the provisions of
applicable law, all of the following (including all defenses, counterclaims and
other rights of any nature based upon any of the following):
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(a) presentment, demand for payment and protest of
nonpayment of any of the Credit Obligations, and notice of protest,
dishonor or nonperformance;
(b) notice of acceptance of this guarantee and notice that
credit has been extended in reliance on the Guarantor's guarantee of the
Credit Obligations;
(c) notice of any Default or of any inability to enforce
performance of the obligations of the Company or any other Person with
respect to any Credit Document, or notice of any acceleration of
maturity of any Credit Obligations;
(d) demand for performance or observance of, and any
enforcement of any provision of, the Credit Obligations, this Agreement
or any other Credit Document or any pursuit or exhaustion of rights or
remedies against the Company or any other Person in respect of the
Credit Obligations or any requirement of diligence or promptness on the
part of the Agent or the Lenders in connection with any of the
foregoing;
(e) any act or omission on the part of the Agent or the
Lenders which may impair or prejudice the rights of the Guarantor,
including rights to obtain subrogation, exoneration, contribution,
indemnification or any other reimbursement from the Company or any other
Person, or otherwise operate as a deemed release or discharge;
(f) any statute of limitations or any statute or rule of
law which provides that the obligation of a surety must be neither
larger in amount nor in other respects more burdensome than the
obligation of the principal;
(g) any "single action" or "anti deficiency" law which
would otherwise prevent the Lenders from bringing any action, including
any claim for a deficiency, against the Guarantor before or after the
Agent's or the Lenders' commencement or completion of any foreclosure
action, whether judicially, by exercise of power of sale or otherwise,
or any other law which would otherwise require any election of remedies
by the Agent or the Lenders;
(h) all demands and notices of every kind with respect to
the foregoing; and
(i) to the extent not referred to above, all defenses
(other than payment) which the Company may now or hereafter have to the
payment of the Credit Obligations, together with all suretyship
defenses, which could otherwise be asserted by such Guarantor.
Each Guarantor represents that it has obtained the advice of counsel as to the
extent to which suretyship and other defenses may be available to it with
respect to its obligations hereunder in the absence of the waivers contained in
this Section 9.3.
No delay or omission on the part of the Agent or the Lenders in exercising any
right under this Agreement or any other Credit Document or under any guarantee
of the Credit Obligations shall operate as a waiver or relinquishment of such
right. No action which the Agent or the Lenders or the Company may take or
refrain from taking with respect to the Credit Obligations, including any
amendments thereto or modifications thereof or waivers with respect thereto,
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shall affect the provisions of this Agreement or the obligations of the
Guarantor hereunder. None of the Lenders' or the Agent's rights shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of any Obligor, or by any noncompliance by the Company with the terms,
provisions and covenants of this Agreement, regardless of any knowledge thereof
which the Agent or the Lenders may have or otherwise be charged with.
9.4. Lenders' Power to Waive, etc. Each Guarantor grants to the
Lenders full power in their discretion, without notice to or consent of such
Guarantor, such notice and consent being expressly waived to the fullest extent
permitted by applicable law, and without in any way affecting the liability of
the Guarantor under its guarantee hereunder:
(a) To waive compliance with, and any Default under, and to
consent to any amendment to or modification or termination of any terms
or provisions of, or to give any waiver in respect of, this Agreement,
any other Credit Document, the Credit Obligations or any guarantee
thereof (each as from time to time in effect);
(b) To grant any extensions of the Credit Obligations (for
any duration), and any other indulgence with respect thereto, and to
effect any total or partial release (by operation of law or otherwise),
discharge, compromise or settlement with respect to the obligations of
the Obligors or any other Person in respect of the Credit Obligations,
whether or not rights against the Guarantor under this Agreement are
reserved in connection therewith;
(c) To collect or liquidate or realize upon any of the
Credit Obligations in any manner or to refrain from collecting or
liquidating or realizing upon any of the Credit Obligations; and
(d) To extend credit under this Agreement, any other Credit
Document or otherwise in such amount as the Lenders may determine,
including increasing the amount of credit and the interest rate and
fees with respect thereto, even though the condition of the Obligors
(financial or otherwise on an individual or Consolidated basis) may
have deteriorated since the date hereof.
9.5. Information Regarding the Company, etc. Each Guarantor has made
such investigation as it deems desirable of the risks undertaken by it in
entering into this Agreement and is fully satisfied that it understands all such
risks. Each Guarantor waives any obligation which may now or hereafter exist on
the part of the Agent or the Lenders to inform it of the risks being undertaken
by entering into this Agreement or of any changes in such risks and, from and
after the date hereof, each Guarantor undertakes to keep itself informed of such
risks and any changes therein. Each Guarantor expressly waives any duty which
may now or hereafter exist on the part of the Agent or the Lenders to disclose
to the Guarantor any matter related to the business, operations, character,
collateral, credit, condition (financial or otherwise), income or prospects of
the Company or its Affiliates or their properties or management, whether now or
hereafter known by the Agent or the Lenders. Each Guarantor represents, warrants
and agrees that it assumes sole responsibility for obtaining from the Company
all information concerning this Agreement and all other Credit Documents
and all other information as to the Company and its Affiliates or their
properties or management as such Guarantor deems necessary or desirable.
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9.6. Certain Guarantor Representations. Each Guarantor represents
that:
(a) it is in its best interest and in pursuit of the
purposes for which it was organized as an integral part of the business
conducted and proposed to be conducted by the Company and its
Subsidiaries, and reasonably necessary and convenient in connection
with the conduct of the business conducted and proposed to be conducted
by them, to induce the Lenders to enter into this Agreement and to
extend credit to the Company by making the Guarantees contemplated by
this Section 9,
(b) the credit available hereunder will directly or
indirectly inure to its benefit,
(c) by virtue of the foregoing it is receiving at least
reasonably equivalent value from the Lenders for its Guarantee,
(d) it will not be rendered insolvent as a result of
entering into this Agreement,
(e) after giving effect to the transactions contemplated by
this Agreement, it will have assets having a fair saleable value in
excess of the amount required to pay its probable liability on its
existing debts as they become absolute and matured,
(f) it has, and will have, access to adequate capital for
the conduct of its business,
(g) it has the ability to pay its debts from time to time
incurred in connection therewith as such debts mature, and
(h) it has been advised by the Agent that the Lenders are
unwilling to enter into this Agreement unless the Guarantees
contemplated by this Section 9 are given by it.
9.7. Subrogation. Each Guarantor agrees that, until the Credit
Obligations are paid in full, it will not exercise any right of reimbursement,
subrogation, contribution, offset or other claims against the other
Obligors arising by contract or operation of law in connection with any
payment made or required to be made by such Guarantor under this Agreement.
After the payment in full of the Credit Obligations, each Guarantor shall be
entitled to exercise against the Company and the other Obligors all such rights
of reimbursement, subrogation, contribution and offset, and all such other
claims, to the fullest extent permitted by law.
9.8. Subordination. Each Guarantor covenants and agrees that all
Indebtedness, claims and liabilities now or hereafter owing by the Company or
any other Obligor to such Guarantor, whether arising hereunder or otherwise, are
subordinated to the prior payment in full of the Credit Obligations and are so
subordinated as a claim against such Obligor or any of its assets, whether such
claim be in the ordinary course of business or in the event of voluntary or
involuntary liquidation, dissolution, insolvency or bankruptcy, so that no
payment with respect to any such Indebtedness, claim or liability will be made
or received while any Event of Default exists.
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9.9. Future Subsidiaries; Further Assurances. The Company will from
time to time cause (a) any present Wholly Owned Subsidiary that is not a
Guarantor or an Immaterial Subsidiary within 30 days after notice from the Agent
or (b) any future Wholly Owned Subsidiary that is not an Immaterial Subsidiary
within 30 days after any such Person becomes a Wholly Owned Subsidiary, to join
this Agreement as a Guarantor and to join the Security Agreement as an Obligor
pursuant to a joinder agreement in form and substance reasonably satisfactory to
the Agent; provided, however, that in the event such a Wholly Owned Subsidiary
is prohibited by any valid law, statute, rule or regulation from guaranteeing
the Credit Obligations, or if such a guarantee by any Foreign Subsidiary would
result in a repatriation of a material amount of foreign earnings under the Code
(including the "deemed dividend" provisions of section 956 of the Code),
(i) such guarantee will be limited to the extent necessary to comply with such
prohibition or to prevent such repatriation of foreign earnings or (ii) if such
limitation on the guaranteed amount is not sufficient to avoid such prohibition
or repatriation, no such guarantee shall be required. Each Guarantor will,
promptly upon the request of the Agent from time to time, execute, acknowledge
and deliver, and file and record, all such instruments, and take all such
action, including providing a legal opinion with respect to its guarantee and
grant of security interests, as the Agent deems necessary or advisable to carry
out the intent and purposes of this Section 9.9.
9.10. Contribution Among Guarantors. The Guarantors agree that, as
among themselves in their capacity as guarantors of the Credit Obligations,
the ultimate responsibility for repayment of the Credit Obligations, in the
event that the Company fails to pay when due its Credit Obligations, shall be
equitably apportioned, to the extent consistent with the Credit Documents,
among the respective Guarantors (a) in the proportion that each, in its capacity
as a guarantor, has benefited from the extensions of credit to the Company by
the Lenders under the Credit Agreement, or (b) if such equitable apportionment
cannot reasonably be determined or agreed upon among the affected Guarantors,
in proportion to their respective net worths determined on or about the date
hereof (or such later date as such Guarantor becomes party hereto). In the event
that any Guarantor, in its capacity as a guarantor, pays an amount with respect
to the Credit Obligations in excess of its proportionate share as set forth in
this Section 9.10, each other Guarantor shall, to the extent consistent with the
Credit Documents, make a contribution payment to such Guarantor in an amount
such that the aggregate amount paid by each Guarantor reflects its proportionate
share of the Credit Obligations. In the event of any default by any Guarantor
under this Section 9.10, each other Guarantor will bear, to the extent
consistent with the Credit Documents, its proportionate share of the defaulting
Guarantor's obligation under this Section 9.10. This Section 9.10 is intended to
set forth only the rights and obligations of the Guarantors among themselves and
shall not in any way affect the obligations of any Guarantor to the Lenders
under the Credit Documents (which obligations shall at all times constitute
the joint and several obligations of all the Guarantors).
10. Expenses; Indemnity.
10.1. Expenses. Whether or not the transactions contemplated hereby
shall be consummated, the Company will pay:
(a) all reasonable expenses of the Agent (including the
out-of-pocket expenses related to forming the group of Lenders and
reasonable fees and disbursements of the counsel to the Agent) in
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connection with the preparation and duplication of this Agreement, each
other Credit Document, any environmental audit report, commercial field
examiners (but only after the occurrence and during the continuance of a
Default or an Event of Default), fixed asset appraisers (but only after
the occurrence and during the continuance of a Default or an Event of
Default), the transactions contemplated hereby and thereby and
amendments, waivers, consents and other operations hereunder and
thereunder;
(b) all recording and filing fees and transfer and
documentary stamp and similar taxes at any time payable in respect of
this Agreement, any other Credit Document, any Credit Security or the
incurrence of the Credit Obligations; and
(c) all other reasonable expenses incurred by the Agent,
the Lenders or the holder of any Credit Obligation in connection with
the enforcement of any rights hereunder or under any other Credit
Document or, after the occurrence and during the continuance of a
Default or an Event of Default, any work-out negotiations relating to
the Credit Obligations, in each case including costs of collection and
reasonable attorneys' fees (including a reasonable allowance for the
hourly cost of attorneys employed by the Lenders on a salaried basis)
and expenses.
10.2. General Indemnity. The Company shall indemnify the Lenders and
the Agent and hold them harmless from any liability, loss or damage resulting
from the violation by the Company of Section 2.5.5. In addition, the Company
shall indemnify each Lender, the Agent, the Syndication Agent, the Documentation
Agent, the Joint Lead Arrangers or the Co-Arranger each of the Lenders' or the
Agent's directors, officers and employees, agents, attorneys, accountants,
consultants and Affiliates and each Person, if any, who controls any Lender or
the Agent (each Lender, the Agent and each of such directors, officers,
employees, agents, attorneys, accountants, consultants and Affiliates and
control Persons is referred to as an "Indemnified Party") and hold each of them
harmless from and against any and all claims, damages, liabilities and
reasonable expenses (including reasonable fees and disbursements of counsel with
whom any Indemnified Party may consult in connection therewith and all
reasonable expenses of litigation or preparation therefor) which any Indemnified
Party may incur or which may be asserted against any Indemnified Party in
connection with (a) the Indemnified Party's compliance with or contest of any
subpoena or other process issued against it in any proceeding involving the
Company or any of its Subsidiaries or their Affiliates, (b) any litigation or
investigation involving the Company, any of its Subsidiaries or their
Affiliates, or any officer, director or employee thereof, (c) the existence or
exercise of any security rights with respect to the Credit Security in
accordance with the Credit Documents, or (d) this Agreement, any other Credit
Document or any transaction contemplated hereby or thereby; provided, however,
that the foregoing indemnity shall not apply (i) to litigation commenced by the
Company against the Lenders or the Agent which seeks enforcement of any of the
rights of the Company hereunder or under any other Credit Document and is
determined adversely to the Lenders or the Agent in a final nonappealable
judgment by a court of competent jurisdiction or (ii) to the extent such claims,
damages, liabilities and expenses are determined in a final, nonappealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct. THE COMPANY
EXPRESSLY ACKNOWLEDGES THAT IT MAY BE REQUIRED TO INDEMNIFY PERSONS AGAINST
THEIR OWN NEGLIGENCE.
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10.3. Indemnity With Respect to Letters of Credit. The Company shall
indemnify each Letter of Credit Issuer and its correspondents and hold each of
them harmless from and against any and all claims, losses, liabilities, damages
and reasonable expenses (including reasonable attorneys' fees) arising from or
in connection with any Letter of Credit, including any such claim, loss,
liability, damage or expense arising out of any transfer, sale, delivery,
surrender or endorsement of any invoice, ▇▇▇▇ of lading, warehouse receipt or
other document at any time held by the Agent, any other Letter of Credit Issuer
or held for their respective accounts by any of their correspondents, in
connection with any Letter of Credit, except to the extent such claims, losses,
liabilities, damages and expenses are determined in a final, nonappealable
judgment by a court of competent jurisdiction to have resulted from gross
negligence or willful misconduct on the part of the Agent or any other Letter of
Credit Issuer.
11. Operations; Agent.
11.1. Interests in Loan. The percentage interest of each Lender in
the respective portions of the Loan and Letters of Credit, and the related
Commitments, shall be computed based on the maximum principal amount for each
Lender as set forth in the Register, as from time to time in effect. The current
Percentage Interests are set forth in Exhibit 11.1, which may be updated by the
Agent from time to time to conform to the Register.
11.2. Agent's Authority to Act, etc. Each of the Lenders appoints and
authorizes Fleet to act for the Lenders as the Lenders' Agent in connection with
the transactions contemplated by this Agreement and the other Credit Documents
on the terms set forth herein. In acting hereunder, the Agent is acting for the
account of Fleet to the extent of its Percentage Interest in the Revolving Loan
and of its interest in Swingline Loans made by it and for the account of the
other Lenders to the extent of the Lenders' respective Percentage Interests or
each of their interests in the Swingline Loans made by them, and all action in
connection with the enforcement of, or the exercise of any remedies (other than
the Lenders' rights of set off as provided in Section 8.2.4 or in any Credit
Document) in respect of the Credit Obligations and Credit Documents shall be
taken by the Agent. No agent or arranger named hereunder (other than the Agent)
shall have any duties or obligations under the Credit Documents.
11.3. Company to Pay Agent, etc. The Company and each Guarantor shall
be fully protected in making all payments in respect of the Credit Obligations
(other than payments under Hedge Agreements) to the Agent, in relying upon
consents, modifications and amendments executed by the Agent purportedly on the
Lenders' behalf, and in dealing with the Agent as herein provided. The Agent may
charge the accounts of the Company, on the dates when the amounts thereof become
due and payable, with the amounts of the principal of and interest on the Loan,
any amounts paid by the Letter of Credit Issuers to third parties under Letters
of Credit or drafts presented thereunder, commitment fees, Letter of Credit fees
and all other fees and amounts owing under any Credit Document (other than Hedge
Agreements).
11.4. Lender Operations for Advances, Letters of Credit, etc.
11.4.1. Advances. On each Closing Date, each Lender shall
advance to the Agent in immediately available funds such Lender's
Percentage Interest in the portion of the Loan advanced on such Closing
Date prior to 12:00 noon (Boston time). If such funds are not received
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at such time, but all applicable conditions set forth in Section 5 have
been satisfied, each Lender authorizes and requests the Agent to advance
for the Lender's account, pursuant to the terms hereof, the Lender's
respective Percentage Interest in such portion of the Loan and agrees to
reimburse the Agent in immediately available funds for the amount
thereof prior to 2:00 p.m. (Boston time) on the day any portion of the
Loan is advanced hereunder; provided, however, that the Agent is not
authorized to make any such advance for the account of any Lender who
has previously notified the Agent in writing that such Lender will not
be performing its obligations to make further advances hereunder; and
provided, further, that the Agent shall be under no obligation to make
any such advance.
11.4.2. Letters of Credit. Each of the Lenders authorizes and
requests each Letter of Credit Issuer to issue the Letters of Credit
provided for in Section 2.3 and to grant each Lender a participation in
each of such Letters of Credit in an amount equal to its Percentage
Interest in the amount of each such Letter of Credit. Promptly upon the
request of the Letter of Credit Issuer, each Lender shall reimburse the
Letter of Credit Issuer in immediately available funds for such Lender's
Percentage Interest in the amount of all obligations to third parties
incurred by the Letter of Credit Issuer in respect of each Letter of
Credit and each draft accepted under a Letter of Credit to the extent
not reimbursed by the Company. The Letter of Credit Issuer will notify
each Lender of the issuance of any Letter of Credit, the amount and
date of payment of any draft drawn or accepted under a Letter of Credit
and whether in connection with the payment of any such draft the amount
thereof was added to the Revolving Loan or was reimbursed by the
Company.
11.4.3. Agent to Allocate Payments, etc. All payments of
principal and interest in respect of the extensions of the Loan made
pursuant to this Agreement, reimbursement of amounts paid by any Letter
of Credit Issuer to third parties under Letters of Credit or drafts
presented thereunder, commitment fees, Letter of Credit fees and other
fees under this Agreement shall, as a matter of convenience, be made by
the Company and the Guarantors to the Agent in immediately available
funds by noon (Boston time) on any Banking Day. The share of each Lender
shall be credited to such Lender by the Agent in immediately available
funds by 2:00 p.m. (Boston time) on such Banking Day in such manner
that the principal amount of the Credit Obligations to be paid shall be
paid proportionately in accordance with the Lenders' respective
Percentage Interests in such Credit Obligations, except as otherwise
provided in this Agreement. Under no circumstances shall any Lender be
required to produce or present its Notes as evidence of its interests
in the Credit Obligations in any action or proceeding relating to the
Credit Obligations.
11.4.4. Delinquent Lenders; Nonperforming Lenders. In the event
that any Lender fails to reimburse the Agent pursuant to Section 11.4.1
for the Percentage Interest of such Lender (a "Delinquent Lender") in
any credit advanced by the Agent pursuant hereto, overdue amounts (the
"Delinquent Payment") due from the Delinquent Lender to the Agent shall
bear interest, payable by the Delinquent Lender on demand, at a per
annum rate equal to (a) the Federal Funds Rate for the first three days
overdue and (b) the sum of 2% plus the Federal Funds Rate for any
longer period. Such interest shall be payable to the Agent for its own
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account for the period commencing on the date of the Delinquent Payment
and ending on the date the Delinquent Lender reimburses the Agent on
account of the Delinquent Payment (to the extent not paid by the
Company as provided below) and the accrued interest thereon (the
"Delinquency Period"), whether pursuant to the assignments referred to
below or otherwise. Upon notice by the Agent, the Company will pay to
the Agent the principal (but not the interest) portion of the
Delinquent Payment. During the Delinquency Period, in order to make
reimbursements for the Delinquent Payment and accrued interest thereon,
the Delinquent Lender shall be deemed to have assigned to the Agent all
interest, commitment fees and other payments made by the Company under
Section 3 that would have thereafter otherwise been payable under the
Credit Documents to the Delinquent Lender. During any other period in
which any Lender is not performing its obligations to extend credit
under Section 2 (a "Nonperforming Lender"), the Nonperforming Lender
shall be deemed to have assigned to each Lender that is not a
Nonperforming Lender (a "Performing Lender") all principal and other
payments made by the Company under Section 4 that would have thereafter
otherwise been payable under the Credit Documents to the Nonperforming
Lender. The Agent shall credit a portion of such payments to each
Performing Lender in an amount equal to the Percentage Interest of such
Performing Lender divided by one minus the Percentage Interest of the
Nonperforming Lender until the respective portions of the Loan owed to
all the Lenders are the same as the Percentage Interests of the Lenders
immediately prior to the failure of the Nonperforming Lender to perform
its obligations under Section 2. The foregoing provisions shall be in
addition to any other remedies the Agent, the Performing Lenders or the
Company may have under law or equity against the Delinquent Lender as a
result of the Delinquent Payment or against the Nonperforming Lender as
a result of its failure to perform its obligations under Section 2.
11.5. Sharing of Payments, etc. Each Lender agrees that (a) if by
exercising any right of set off or counterclaim or otherwise, it shall receive
payment of (i) a proportion of the aggregate amount due with respect to its
Percentage Interest in the Loan and Letter of Credit Exposure which is greater
than (ii) the proportion received by any other Lender in respect of the
aggregate amount due with respect to such other Lender's Percentage Interest in
the Loan and Letter of Credit Exposure and (b) if such inequality shall continue
for more than 10 days, the Lender receiving such proportionately greater payment
shall purchase participations in the Percentage Interests in the Loan and Letter
of Credit Exposure held by the other Lenders, and such other adjustments shall
be made from time to time (including rescission of such purchases of
participations in the event the unequal payment originally received is recovered
from such Lender through bankruptcy proceedings or otherwise), as may be
required so that all such payments of principal and interest with respect to the
Loan and Letter of Credit Exposure held by the Lenders shall be shared by the
Lenders pro rata in accordance with their respective Percentage Interests and as
otherwise provided for in this Agreement; provided, however, that this Section
11.5 shall not impair the right of any Lender to exercise any right of set off
or counterclaim it may have and to apply the amount subject to such exercise to
the payment of Indebtedness of any Obligor other than such Obligor's
Indebtedness with respect to the Loan and Letter of Credit Exposure. Each Lender
that grants a participation in the Credit Obligations to a Credit Participant
shall require as a condition to the granting of such participation that such
Credit Participant agree to share payments received in respect of the Credit
Obligations as provided in this Section 11.5. The provisions of this
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Section 11.5 are for the sole and exclusive benefit of the Lenders and no
failure of any Lender to comply with the terms hereof shall be available to any
Obligor as a defense to the payment of the Credit Obligations.
11.6. Agent's Resignation. The Agent may resign at any time by giving
at least 60 days' prior written notice of its intention to do so to each of the
Lenders and the Company and upon the appointment by the Required Lenders of a
successor Agent satisfactory to the Company. If no successor Agent shall have
been so appointed and shall have accepted such appointment within 45 days after
the retiring Agent's giving of such notice of resignation, then the retiring
Agent may with the consent of the Company, which shall not be unreasonably
withheld, appoint a successor Agent which shall be a bank or a trust company
organized under the laws of the United States of America or any state thereof
and having a combined capital, surplus and undivided profit of at least
$100,000,000; provided, however, that any successor Agent appointed under this
sentence may be removed upon the written request of the Required Lenders, which
request shall also appoint a successor Agent satisfactory to the Company. If the
Agent assigns its entire Percentage Interest in the Loans hereunder, the Company
shall be entitled to remove the Agent. A successor Agent shall be appointed in
accordance with this Section 11.6. Upon the appointment of a new Agent
hereunder, the term "Agent" shall for all purposes of this Agreement
thereafter mean such successor. After any retiring Agent's resignation
hereunder as Agent, or the removal hereunder of any successor Agent, the
provisions of this Agreement shall continue to inure to the benefit of such
Agent as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement.
11.7. Concerning the Agent.
11.7.1. Action in Good Faith, etc. The Agent and its officers,
directors, employees and agents shall be under no liability to any of
the Lenders or to any future holder of any interest in the Credit
Obligations for any action or failure to act taken or suffered in good
faith, and any action or failure to act in accordance with an opinion of
its counsel shall conclusively be deemed to be in good faith. The Agent
shall in all cases be entitled to rely, and shall be fully protected in
relying, on instructions given to the Agent by the required holders of
Credit Obligations as provided in this Agreement.
11.7.2. No Implied Duties, etc. The Agent shall have and may
exercise such powers as are specifically delegated to the Agent under
this Agreement or any other Credit Document together with all other
powers incidental thereto. The Agent shall have no implied duties to
any Person or any obligation to take any action under this Agreement or
any other Credit Document except for action specifically provided for in
this Agreement or any other Credit Document to be taken by the Agent.
Before taking any action under this Agreement or any other Credit
Document, the Agent may request an appropriate specific indemnity
satisfactory to it from each Lender in addition to the general indemnity
provided for in Section 11.10. Until the Agent has received such
specific indemnity, the Agent shall not be obligated to take (although
it may in its sole discretion take) any such action under this Agreement
or any other Credit Document. Each Lender confirms that the Agent does
not have a fiduciary relationship to it under the Credit Documents. Each
of the Company and its Subsidiaries party hereto confirms that neither
the Agent nor any other Lender has a fiduciary relationship to it under
the Credit Documents.
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11.7.3. Validity, etc. The Agent shall not be responsible to
any Lender or any future holder of any interest in the Credit
Obligations (a) for the legality, validity, enforceability or
effectiveness of this Agreement or any other Credit Document, (b) for
any recitals, reports, representations, warranties or statements
contained in or made in connection with this Agreement or any other
Credit Document and (c) for the existence or value of any assets
included in any security for the Credit Obligations, (d) for the
effectiveness of any Lien purported to be included in any security for
the Credit Obligations or (e) unless the Agent shall have failed to
comply with Section 11.7.1, for the perfection of any security for the
Credit Obligations.
11.7.4. Compliance. The Agent shall not be obligated to
ascertain or inquire as to the performance or observance of any of the
terms of this Agreement or any other Credit Document; and in connection
with any extension of credit under this Agreement or any other Credit
Document, the Agent shall be fully protected in relying on a certificate
of the Company as to the fulfillment by the Company of any conditions to
such extension of credit.
11.7.5. Employment of Agents and Counsel. The Agent may execute
any of its duties as Agent under this Agreement or any other Credit
Document by or through employees, agents and attorneys in fact and shall
not be responsible to any of the Lenders, the Company or any other
Obligor for the default or misconduct of any such agents or attorneys in
fact selected by the Agent acting in good faith. The Agent shall be
entitled to advice of counsel concerning all matters pertaining to the
agency hereby created and its duties hereunder or under any other Credit
Document.
11.7.6. Reliance on Documents and Counsel. The Agent shall be
entitled to rely, and shall be fully protected in relying, upon any
affidavit, certificate, cablegram, consent, instrument, letter, notice,
order, document, statement, telecopy, telegram, telex or teletype
message or writing reasonably believed in good faith by the Agent to be
genuine and correct and to have been signed, sent or made by the Person
in question, including any telephonic or oral statement made by such
Person, and, with respect to legal matters, upon an opinion or the
advice of counsel selected by the Agent.
11.7.7. Agent's Reimbursement. Each of the Lenders severally
agrees to reimburse the Agent, pro rata in accordance with such Lender's
Percentage Interest, for any reasonable expenses not reimbursed by the
Company or the Guarantors (without limiting the obligation of the
Company or the Guarantors to make such reimbursement): (a) for which
the Agent is entitled to reimbursement by the Company or the Guarantors
under this Agreement or any other Credit Document, and (b) after the
occurrence of a Default, for any other reasonable expenses incurred by
the Agent on the Lenders' behalf in connection with the enforcement of
the Lenders' rights under this Agreement or any other Credit Document.
11.7.8. Agent's Fees. The Company shall pay to the Agent for
its own account an agent's fee in the amounts separately agreed to from
time to time by the Company and the Agent.
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11.8. Rights as a Lender. With respect to any credit extended
by it hereunder, Fleet shall have the same rights, obligations and
powers hereunder as any other Lender and may exercise such rights and
powers as though it were not the Agent, and unless the context otherwise
specifies, Fleet shall be treated in its individual capacity as though
it were not the Agent hereunder. Without limiting the generality of the
foregoing, the Percentage Interest of Fleet shall be included in any
computations of Percentage Interests. Fleet and its Affiliates may
accept deposits from, lend money to, act as trustee for and generally
engage in any kind of banking or trust business with the Company, any
of its Subsidiaries or any Affiliate of any of them and any Person who
may do business with or own an equity interest in the Company, any of
its Subsidiaries or any Affiliate of any of them, all as if Fleet were
not the Agent and without any duty to account therefor to the other
Lenders.
11.9. Independent Credit Decision. Each of the Lenders
acknowledges that it has independently and without reliance upon the
Agent, based on the financial statements and other documents referred to
in Section 7.2, on the other representations and warranties contained
herein and on such other information with respect to the Company and its
Subsidiaries as such Lender deemed appropriate, made such Lender's own
credit analysis and decision to enter into this Agreement and to make
the extensions of credit provided for hereunder. Each Lender represents
to the Agent that such Lender will continue to make its own independent
credit and other decisions in taking or not taking action under this
Agreement or any other Credit Document. Each Lender expressly
acknowledges that neither the Agent nor any of its officers, directors,
employees, agents, attorneys in fact or Affiliates has made any
representations or warranties to such Lender, and no act by the Agent
taken under this Agreement or any other Credit Document, including any
review of the affairs of the Company and its Subsidiaries, shall be
deemed to constitute any representation or warranty by the Agent. Except
for notices, reports and other documents expressly required to be
furnished to each Lender by the Agent under this Agreement or any other
Credit Document, the Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the
business, operations, property, condition, financial or otherwise, or
creditworthiness of the Company or any Subsidiary which may come into
the possession of the Agent or any of its officers, directors,
employees, agents, attorneys in fact or Affiliates.
11.10. Indemnification. The holders of the Credit Obligations
shall indemnify the Agent and its officers, directors, employees and
agents, attorneys, accountants, consultants and controlling Persons
(to the extent not reimbursed by the Obligors and without limiting the
obligation of any of the Obligors to do so), pro rata in accordance with
their respective Percentage Interests, from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, losses (including all accrued and unpaid Agent Fees),
costs, expenses or disbursements of any kind whatsoever which may at any
time be imposed on, incurred by or asserted against the Agent or such
Persons relating to or arising out of this Agreement, any other Credit
Document, the transactions contemplated hereby or thereby, or any
action taken or omitted by the Agent in connection with any of the
foregoing; provided, however, that the foregoing shall not extend to
actions or omissions which are determined in a final, nonappealable
judgment by a court of competent jurisdiction to have taken by the
Agent with gross negligence or willful misconduct.
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12. Successors and Assigns; Lender Assignments and Participations. Any
reference in this Agreement or any other Credit Document to any of the
parties hereto shall be deemed to include the successors and assigns of such
party, and all covenants and agreements by or on behalf of the Company, the
Guarantors, the Agent or the Lenders that are contained in this Agreement or any
other Credit Documents shall bind and inure to the benefit of their respective
successors and assigns; provided, however, that (a) the Company and its
Subsidiaries may not assign their rights or obligations under this Agreement
except for mergers or liquidations permitted by Section 6.10 and (b) the Lenders
shall be not entitled to assign their respective Percentage Interests in the
Loan hereunder except as set forth below in this Section 12.
12.1. Assignments by Lenders.
12.1.1. Assignees and Assignment Procedures. Each Lender may in
compliance with applicable laws in connection with such assignment, and
shall if requested by the Borrower in accordance with Section 12.4,
assign to one or more Eligible Assignees (each, an "Assignee") all or a
portion of its interests, rights and obligations under this Agreement
and the other Credit Documents, including all or a portion, which need
not be pro rata between the Revolving Loan and the Letter of Credit
Exposure, on the one hand, and the Term Loan on the other hand of its
Commitment, the portion of the Loan and Letter of Credit Exposure at the
time owing to it and any Notes held by it, but excluding its rights and
obligations as a Letter of Credit Issuer; provided, however, that:
(i) the aggregate amount of the Commitment of the assigning
Lender subject to each such assignment to any Assignee (other than
another Lender or Related Fund, or an Affiliate of a Lender (determined
as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Agent)) shall (a) with respect to the
Revolving Loan, be not less than $5,000,000 and in increments of
$1,000,000 (or, if less, the entire remaining amount) of the assigning
Lender's Commitment), but aggregating all contemporaneous assignments to
Assignees that are Related Funds of each other and (b) with respect to
the Term Loan, be not less than $1,000,000 and in increments of
$1,000,000 (or, if less, the entire remaining amount) of the assigning
Lender's Commitment) but aggregating all contemporaneous assignments to
Assignees that are Related Funds of each other; and
(ii) the parties to each such assignment shall execute and
deliver to the Agent an Assignment and Acceptance (the "Assignment and
Acceptance") substantially in the form of Exhibit 12.1.1, together with
the Note subject to such assignment, and except in the event of a
transfer pursuant to Sections 12.3 or 12.4 to another Lender, a Related
Fund or any Eligible Assignee that acquires all or a substantial portion
of the assets of a Lender or an Affiliate of a Lender, or a transfer by
a Lender to any other Lender or Affiliate of any Lender (including
Related Funds), a processing and recordation fee of $3,500 payable to
the Agent by the assigning Lender or the Assignee (or as the assigning
Lender and the Assignee may otherwise agree between themselves);
provided, however, that only one such processing and recordation fee
shall be required in connection with contemporaneous assignments from
an assigning Lender to Assignees that are Related Funds of each other.
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(iii) Upon acceptance and recording pursuant to Section
12.1.4, from and after the effective date specified in each Assignment
and Acceptance (which effective date shall be at least five Banking Days
after the execution thereof unless waived by the Agent):
(A) the Assignee shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement and
(B) the assigning Lender shall, to the extent provided in
such assignment, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 3.2.4, 3.7 and 10,
as well as to any fees accrued for its account hereunder and not yet
paid).
12.1.2. Terms of Assignment and Acceptance. By executing and
delivering an Assignment and Acceptance, the assigning Lender and
Assignee shall be deemed to confirm to and agree with each other and the
other parties hereto as follows:
(a) other than the representation and warranty that it is
the legal and beneficial owner of the interest being assigned thereby
free and clear of any adverse claim, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection
with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement,
any other Credit Document or any other instrument or document furnished
pursuant hereto;
(b) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial
condition of the Company and its Subsidiaries or the performance or
observance by the Company or any of its Subsidiaries of any of its
obligations under this Agreement, any other Credit Document or any other
instrument or document furnished pursuant hereto;
(c) such Assignee confirms that it has received a copy of
this Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 7.2 or Section 6.4 and such
other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and
Acceptance;
(d) such Assignee will independently and without reliance
upon the Agent, such assigning Lender or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement;
(e) such Assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under
this Agreement as are delegated to the Agent by the terms hereof,
together with such powers as are reasonably incidental thereto; and
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(f) such Assignee agrees that it will perform in accordance
with the terms of this Agreement all the obligations which are required
to be performed by it as a Lender.
12.1.3. Register. The Agent shall maintain at the Boston Office
(solely for the limited purpose set forth in this Section 12.1.3, as the
agent of the Borrower) a register (the "Register") for the recordation
of (a) the names and addresses of the Lenders and the Assignees which
assume rights and obligations pursuant to an assignment under Section
12.1.1, (b) the Percentage Interest of each such Lender as set forth in
Section 11.1 and (c) the amount of the Revolving Loan, Swingline Loan,
Term Loan and Letter of Credit Exposure owing to each Lender from time
to time. The entries in the Register shall be conclusive, in the absence
of manifest error, and the Company, the Agent and the Lenders may treat
each Person whose name is registered therein for all purposes as a
party to this Agreement. The Register shall be available for inspection
by the Company or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
12.1.4. Acceptance of Assignment and Assumption. Upon its
receipt of a completed Assignment and Acceptance executed by an
assigning Lender and an Assignee together with the Note subject to such
assignment, and the processing and recordation fee referred to in
Section 12.1.1, the Agent shall (a) accept such Assignment and
Acceptance, (b) record the information contained therein in the Register
and (c) give prompt notice thereof to the Company. Within five Banking
Days after receipt of notice, the Company, at its own expense, shall
execute and deliver to the Agent, in exchange for the surrendered Note,
a new Note to the order of such Assignee in a principal amount equal to
the applicable Commitment and Loan assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a
Commitment and portion of the Loan, a new Note to the order of such
assigning Lender in a principal amount equal to the applicable
Commitment and Loan retained by it. Such new Note shall be in an
aggregate principal amount equal to the aggregate principal amount of
such surrendered Note, and shall be dated the date of the surrendered
Note which it replaces.
12.1.5. Federal Reserve Bank; Other Creditors. Notwithstanding
the foregoing provisions of this Section 12, any Lender may at any time
pledge or assign all or any portion of such Lender's rights under this
Agreement, including without limitation (i) any pledge or assignment to
secure obligations to a Federal Reserve Bank and (ii) in the case of any
Lender that is a 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 12.1.5 shall not apply to any such pledge or assignment of a
security interest; provided, however, that no such pledge or assignment
shall release a Lender from such Lender's obligations hereunder or
under any other Credit Document or substitute any such pledgee or
assignee for such Lender as a party hereto.
12.1.6. Further Assurances. The Company and its Subsidiaries
shall sign such documents and take such other actions from time to time
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reasonably requested by an Assignee to enable it to share in the
benefits of the rights created by the Credit Documents.
12.2. Credit Participants. Each Lender may, without the consent of
the Company or the Agent, in compliance with applicable laws in connection
with such participation, sell to one or more commercial banks or other
financial institutions or funds in the business of making or purchasing
loans similar to the Credit Obligations (each a "Credit Participant")
participations in all or a portion of its interests, rights and obligations
under this Agreement and the other Credit Documents (including all or a portion
of its Commitment, the Loan and Letter of Credit Exposure owing to it and the
Note held by it); provided, however, 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;
(c) the Credit Participant shall be entitled to the benefit
of the cost protection provisions contained in Sections 3.2.4, 3.7 and
10; provided, however, that the Credit Participant shall not be entitled
to receive any greater payment thereunder than the selling Lender would
have been entitled to receive with respect to the interest so sold if
such interest had not been sold; provided, further, that the Credit
Participant shall not be entitled to receive any greater payment
hereunder than the Credit Participant would have been entitled to
receive if such Credit Participant itself were a Lender; and
(d) the Company, the Agent 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, and such
Lender shall retain the sole right in its discretion as one of the
Lenders to vote with respect to the enforcement of the obligations of
the Company relating to the Loan and Letter of Credit Exposure and the
approval of any amendment, modification or waiver of any provision of
this Agreement (other than amendments, modifications, consents or
waivers described in clauses (b) or (c) of the proviso to Section 15.1).
Each Obligor agrees, to the fullest extent permitted by applicable law, that any
Credit Participant and any Lender purchasing a participation from another Lender
pursuant to Section 11.5 may exercise all rights of payment (including the right
of set-off), with respect to its participation as fully as if such Credit
Participant or such Lender were the direct creditor of the Obligors and a Lender
hereunder in the amount of such participation.
12.3. Special Purpose Funding Vehicles. Notwithstanding anything to
the contrary contained herein, any Lender (a "Granting Lender") may grant to a
special purpose funding vehicle identified in writing by the Granting Lender to
the Agent and the Company from time to time (an "SPV") the option to provide to
the Company all or part of any extension of credit that such Granting Lender
would otherwise be obligated to make to the Company pursuant hereto; provided,
however, that (a) nothing herein shall constitute a commitment by any SPV to
make any extension of credit, (b) if an SPV elects not to exercise such
option or otherwise fails to provide all or any part of such extension
of credit, the Granting Lender shall be obligated to make such extension of
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credit pursuant to the terms hereof and (c) the Granting Lender shall remain for
all purposes the Lender of record under the Credit Documents, including for the
purposes of approving amendments, waivers and other modifications of the Credit
Documents. The making of an extension of credit by an SPV hereunder shall
utilize the Commitment of the Granting Lender to the same extent as if such
extension of credit had been made by such Granting Lender. No SPV shall be
liable for any indemnity or similar payment obligation under the Credit
Documents (all liability for which shall remain with the Granting Lender).
Prior to the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior indebtedness of any SPV, no party
hereto will institute against, or join any other Person in instituting against,
such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings. In addition, notwithstanding anything to the contrary contained
herein, any SPV may (i) with notice to, but without the prior consent of, the
Borrower and the Agent and without paying any processing fee therefor, assign
all or a portion of its interests in any Credit Obligations to the Granting
Lender or to any financial institutions (consented to in writing by the Borrower
and Agent) providing liquidity or credit support to such SPV to support the
funding or maintenance of extensions of credit and (ii) disclose on a
confidential basis any non-public information relating to its extensions of
credit to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPV. This Section shall
survive the termination of this Agreement and may not be amended without the
written consent of each SPV to which a grant has been made pursuant to
this Section.
12.4. Replacement of Lender. In the event that any Lender or, to the
extent applicable, any Credit Participant (the "Affected Lender"):
(a) fails to perform its obligations to fund any portion of
the Loan or to issue any Letter of Credit on any Closing Date when
required to do so by the terms of the Credit Documents or excused only
by virtue of Section 5.2.2, or fails to provide its portion of any LIBOR
Pricing Option pursuant to Section 3.2.1 or on account of a Legal
Requirement as contemplated by Section 3.2.5;
(b) demands payment under Section 3.7 in an amount the
Company deems materially in excess of the amounts with respect thereto
demanded by the other Lenders; or
(c) refuses to consent to a proposed amendment,
modification, waiver or other action requiring consent of the holders of
100% of the Percentage Interests under Section 15.1(b) that is consented
to by the Lenders owning at least two-thirds of the Percentage
Interests;
then, so long as no Event of Default exists, the Company shall have the
right, upon written notice to such Affected Lender and the Agent, to cause such
Affected Lender to assign its Percentage Interests and Commitments in full, at
par (plus accrued interest, fees and other expenses to the extent payable under
the Credit Documents) to a replacement lender which is reasonably satisfactory
to the Agent (the "Replacement Lender"). The Replacement Lender shall purchase
the interests of the Affected Lender in the Loan, Letters of Credit and its
Commitment and shall assume the obligations of the Affected Lender hereunder and
under the other Credit Documents upon execution by the Replacement Lender of an
Assignment and Acceptance and the tender by it to the Affected Lender of a
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purchase price agreed between it and the Affected Lender (or, if they are unable
to agree, a purchase price in the amount of the Affected Lender's Percentage
Interest in the Loan and Letter of Credit Exposure, or appropriate credit
support for contingent amounts included therein, and all other outstanding
Credit Obligations then owed to the Affected Lender). No processing fee pursuant
to Section 11.1.1 shall be required in connection with such assignment. Such
assignment by any Affected Lender who has performed its obligations hereunder
shall be deemed an early termination of any LIBOR Pricing Option to the extent
of such Affected Lender's portion thereof, and the Company will pay to such
Affected Lender any resulting amounts due under Section 3.2.4. Upon consummation
of such assignment, the Replacement Lender shall become party to this Agreement
as a signatory hereto and shall have all the rights and obligations of the
Affected Lender under this Agreement and the other Credit Documents with a
Percentage Interest equal to the Percentage Interest of the Affected Lender, the
Affected Lender shall be released from its obligations hereunder and under the
other Credit Documents, and no further consent or action by any party shall be
required. Upon the consummation of such assignment, the Company, the Agent and
the Affected Lender shall make appropriate arrangements so that (i) a new
Revolving Note is issued to the Replacement Lender if it has acquired a portion
of the Revolving Loan and (ii) ) a new Term Loan Note is issued to the
Replacement Lender if it has acquired a portion of the Term Loan. The Company
and the Guarantors shall sign such documents and take such other actions
reasonably requested by the Replacement Lender to enable it to share in the
benefits of the rights created by the Credit Documents. Any Lender that becomes
an Affected Lender agrees that, upon receipt of a notice from the Company
pursuant to this Section 12.4, it shall execute an Assignment and Acceptance
with the Replacement Lender. The Affected Lender shall use reasonable efforts to
minimize any increased costs, taxes and the impact of adverse Legal Requirements
or market conditions. Until the consummation of an assignment in accordance with
the foregoing provisions of this Section 12.4, the Company shall continue to pay
to the Affected Lender any Credit Obligations as they become due and payable.
13. Confidentiality. Each Lender will maintain the confidential nature of
all non-public information furnished to it by the Company or any of its
Subsidiaries in accordance with such Lender's customary procedures for
maintaining the confidential nature of information of this nature;
provided, however, that such information may be disclosed:
(a) to any other Lender and, on a confidential basis, to
any parent or corporate Affiliate of such Lender or any other Lender;
(b) pursuant to any statutory or regulatory requirement or
any court order, subpoena or other legal process and to any regulatory
authority, including state and federal bank and insurance regulators and
the National Association of Insurance Commissioners;
(c) to any Credit Participant, proposed Credit Participant
or proposed Assignee; provided, however, that any such Person shall
agree to comply with the restrictions set forth in this Section 13 with
respect to such information;
(d) to its independent counsel, auditors and other
professional advisors with an instruction to such Persons to keep such
information confidential;
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(e) in connection with the enforcement of this Agreement or
any other Credit Document or any litigation or other proceeding relating
to this Agreement or any other Credit Document;
(f) with the prior written consent of the Company, to any
other Person; and
(g) to any direct or indirect contractual counterparty in
swap agreements or such contractual counterparty's advisor (so long as
such contractual counterparty or professional advisor to such
contractual counterparty agrees to be bound by the provisions of this
Section 13).
In addition, the Lenders and its Affiliates may include references to the
Company and its Affiliates, their trade names, trademarks and logos and the
credit facility provided hereby in connection with any advertising or marketing
undertaken by such Lender or its Affiliates. Notwithstanding the foregoing,
except as reasonably necessary to comply with applicable securities laws, the
Agent and the Lenders (and each employee, representative, agent or advisor of
the Agent or the Lenders) may disclose to any and all persons, without
limitation of any kind, the U.S. tax treatment and U.S. tax structure of this
transaction and all materials of any kind (including opinions or other tax
analyses) that are provided to the Agent or the Lenders relating to such tax
treatment and tax structure.
14. Notices. Except as otherwise specified in this Agreement, any notice
required to be given pursuant to this Agreement shall be given in writing. Any
notice, consent, approval, demand or other communication in connection with this
Agreement shall be deemed to be given if given in writing (including telex,
telecopy or similar teletransmission) addressed as provided below (or to the
addressee at such other address as the addressee shall have specified by notice
actually received by the addressor), and if either (a) actually delivered in
fully legible form to such address (evidenced in the case of a telex by receipt
of the correct answer back) or (b) in the case of a letter, unless actual
receipt of the notice is required by any Credit Document five days shall have
elapsed after the same shall have been deposited in the United States mails,
with first class postage prepaid and registered or certified.
If to the Company or any of its Subsidiaries, to it at its address set
forth in Exhibit 7.1 (as supplemented pursuant to Sections 6.4.1 and 6.4.2), to
the attention of the chief financial officer.
If to any Lender or the Agent, to it at its address set forth on the
signature pages of this Agreement or in the Register, with a copy to the Agent.
15. Amendments, Consents, Waivers, etc.
15.1. Lender Consents for Amendments. Except as otherwise set forth
herein, the Agent may (and upon the written request of the Required Lenders the
Agent shall) take or refrain from taking any action under this Agreement or any
other Credit Document, including giving its written consent to any modification
of or amendment to and waiving in writing compliance with any covenant or
condition in this Agreement or any other Credit Document (other than a Hedge
Agreement) or any Default or Event of Default, all of which actions shall be
binding upon all of the Lenders; provided, however, that:
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(a) Except as provided below, without the written consent
of the Lenders owning at least a majority of the Percentage Interests
(disregarding the Percentage Interest of any Nonperforming Lender so
long as such Lender is treated equally with the other Lenders with
respect to any actions enumerated below), no written modification of,
amendment to, consent with respect to, waiver of compliance with or
waiver of a Default under, any of the Credit Documents (other than a
Hedge Agreement) shall be made.
(b) Without the written consent of such Lenders as own 100%
of the Percentage Interests (disregarding the Percentage Interest of
any Nonperforming Lender so long as such Lender is treated equally with
the other Lenders with respect to any actions enumerated below):
(i) No release of, or subordination of the Lenders'
interests in, all or substantially all, of the Credit Security and no
release of the Company or any material Guarantor shall be made (in any
event, without the written consent of the Lenders, the Agent may release
particular items of Credit Security or particular Guarantors in
dispositions permitted by Section 6.10, as modified by amendments
thereto approved by the Required Lenders, and may release all Credit
Security pursuant to Section 16.1 upon payment in full of the Credit
Obligations and termination of the Commitments).
(ii) No incurrence or existence of any Lien on all or
substantially all of the Credit Security shall be permitted (other than
Liens securing the Credit Obligations).
(iii) No alteration shall be made of the Lenders' rights of
set off contained in Section 8.2.4.
(iv) No contractual subordination of the Loans or any other
portion of the Credit Obligations to any other Indebtedness shall be
permitted.
(v) No amendment to or modification of this Section 15.1
or the definition of "Required Lenders" shall be made.
(vi) No assignment by the Company or any Guarantor of its
obligations under the Credit Documents shall be permitted.
(c) Without the written consent of each Lender that is
directly affected thereby:
(i) No reduction shall be made in (A) the amount of
principal of the Loan owing to such Lender or reimbursement obligations
for payments made under Letters of Credit payable or participated to
such Lender, (B) the interest rate on the portion of the Loan owing to
such Lender or (C) the Letter of Credit fees or commitment fees or other
Credit Obligations owing to such Lender with respect to the credit
facility provided herein (other than amendments and waivers approved by
the Required Lenders that modify defined terms used in calculating the
Applicable Margin or Consolidated Excess Cash Flow or that waive an
increase in the Applicable Rate as a result of an Event of Default).
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(ii) No change shall be made in the stated, scheduled time
of payment of any portion of the Loan owing to such Lender or interest
thereon or reimbursement of payments made under Letters of Credit or
fees or other Credit Obligations payable to such Lender, no waiver shall
be made of any Default under Section 8.1.1 with respect to such Lender
and no amendment of Section 11.5 shall be made.
(iii) No increase shall be made in the amount, or extension
of the term, of the stated Commitments of the Lenders beyond that
provided for under Section 2.
(iv) No LIBOR Interest Period shall have a duration longer
than six months.
(d) Without the written consent of such Lenders owning at
least a majority of the Percentage Interests in a particular Tranche
(disregarding the Percentage Interest of any Nonperforming Lender so
long as such Lender is treated equally with the other Lenders with
respect to any actions enumerated below) voting as a separate class, no
change may be made in the allocation of mandatory prepayments under
Section 4.3 between the respective Tranches.
(e) Without the written consent of the Agent, no amendment
or modification of any Credit Document shall affect the rights or duties
of the Agent under the Credit Documents.
(f) Without the written consent of a Letter of Credit
Issuer, no amendment or modification of any Credit Document shall affect
the rights or duties of such Letter of Credit Issuer under the Credit
Documents.
(g) Without the written consent of the Swingline Lender,
no amendment or modification of any Credit Document shall affect the
rights or duties of such Swingline Lender under the Credit Documents.
(h) No amendment of waiver of any provision requiring
consent of a specified percentage of Lenders shall be effective without
consent of at least such percentage of Lenders.
15.2. Course of Dealing; No Implied Waivers. No course of dealing
between any Lender or the Agent, on one hand, and the Company or any other
Obligor, on the other hand, shall operate as a waiver of any of the Lenders' or
the Agent's rights under this Agreement or any other Credit Document or with
respect to the Credit Obligations. Each of the Company and the Guarantors
acknowledges that if the Lenders or the Agent, without being required to do so
by this Agreement or any other Credit Document, give any notice or information
to, or obtain any consent from, the Company or any other Obligor, the Lenders
and the Agent shall not by implication have amended, waived or modified any
provision of this Agreement or any other Credit Document, or created any duty to
give any such notice or information or to obtain any such consent on any future
occasion. No delay or omission on the part of any Lender of the Agent in
exercising any right under this Agreement or any other Credit Document or with
respect to the Credit Obligations shall operate as a waiver of such right or any
other right hereunder or thereunder. A waiver on any one occasion shall not be
construed as a bar to or waiver of any right or remedy on any future occasion.
No waiver, consent or amendment with respect to this Agreement or any other
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Credit Document shall be binding unless it is in writing and signed by the Agent
or the Required Lenders.
16. General Provisions.
16.1. Defeasance. When all Credit Obligations have been paid,
performed and reasonably determined by the Agent to have been indefeasibly
discharged in full, and if at the time no Lender continues to be committed to
extend any credit to the Company hereunder or under any other Credit Document,
this Agreement and the other Credit Documents shall terminate and, at the
Company's written request, accompanied by such certificates and other items as
the Agent shall reasonably deem necessary, the Credit Security shall revert to
the Obligors and the right, title and interest of the Agent and the Lenders
therein shall terminate. Thereupon, on the Obligors' demand and at their cost
and expense, the Agent shall execute proper instruments, acknowledging
satisfaction of and discharging this Agreement and the other Credit Documents,
and shall redeliver to the Obligors any Credit Security then in its
possession; provided, however, that Sections 3.2.4, 3.7,10, 11.7.7,
11.10, 13 and 16 shall survive the termination of this Agreement.
16.2. No Strict Construction. The parties have participated jointly
in the negotiation and drafting of this Agreement and the other Credit Documents
with counsel sophisticated in financing transactions. In the event an ambiguity
or question of intent or interpretation arises, this Agreement and the other
Credit Documents shall be construed as if drafted jointly by the parties and no
presumption or burden of proof shall arise favoring or disfavoring any party
by virtue of the authorship of any provisions of this Agreement and the other
Credit Documents.
16.3. Certain Obligor Acknowledgments. Each of the Company and the
other Obligors acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Credit Documents;
(b) neither the Agent nor any Lender has any fiduciary
relationship with or duty to the Obligors arising out of or in
connection with this Agreement or any other Credit Document, and the
relationship between the Agent and Lenders, on one hand, and the
Obligors, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other
Credit Documents or otherwise exists by virtue of the transactions
contemplated hereby or thereby among the Obligors and the Lenders.
16.4. Venue; Service of Process; Certain Waivers. Each of the
Company, the other Obligors, the Agent and the Lenders:
(a) Irrevocably submits to the nonexclusive jurisdiction
of the state courts of the State of New York and to the nonexclusive
jurisdiction of the United States District Court for the Southern
District of New York for the purpose of any suit, action or other
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proceeding arising out of or based upon this Agreement or any other
Credit Document or the subject matter hereof or thereof;
(b) Waives to the extent not prohibited by applicable law
that cannot be waived, and agrees not to assert, by way of motion, as a
defense or otherwise, in any such proceeding brought in any of the
above-named courts, any claim that it is not subject personally to the
jurisdiction of such court, that its property is exempt or immune from
attachment or execution, that such proceeding is brought in an
inconvenient forum, that the venue of such proceeding is improper, or
that this Agreement or any other Credit Document, or the subject matter
hereof or thereof, may not be enforced in or by such court;
(c) Consents to service of process in any such proceeding
in any manner at the time permitted by the laws of the State of New York
and agrees that service of process by registered or certified mail,
return receipt requested, at its address specified in or pursuant to
Section 14 is reasonably calculated to give actual notice; and
(d) Waives to the extent not prohibited by applicable law
that cannot be waived any right it may have to claim or recover in any
such proceeding any special, exemplary, punitive or consequential
damages.
16.5. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY
APPLICABLE LAW THAT CANNOT BE WAIVED, EACH OF THE COMPANY, THE OTHER OBLIGORS,
THE AGENT AND THE LENDERS WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT
(WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN
ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM OR PROCEEDING ARISING OUT OF THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR THE SUBJECT MATTER HEREOF OR THEREOF
OR ANY CREDIT OBLIGATION OR IN ANY WAY CONNECTED WITH THE DEALINGS OF THE
LENDERS, THE AGENT, THE COMPANY OR ANY OTHER OBLIGOR IN CONNECTION WITH ANY OF
THE ABOVE, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER
IN CONTRACT, TORT OR OTHERWISE. Each of the Company and the other Obligors
acknowledges that it has been informed by the Agent that the foregoing sentence
constitutes a material inducement upon which each of the Lenders has relied and
will rely in entering into this Agreement and any other Credit Document. Any
Lender, the Agent, the Company or any other Obligor may file an original
counterpart or a copy of this Agreement with any court as written evidence of
the consent of the Company , the other Obligors, the Agent and the Lenders to
the waiver of their rights to trial by jury.
16.6. Interpretation; Governing Law; etc. Time is (and shall be) of
the essence in this Agreement and the other Credit Documents. All covenants,
agreements, representations and warranties made in this Agreement or any other
Credit Document or in certificates delivered pursuant hereto or thereto shall
be deemed to have been relied on by each Lender, notwithstanding any
investigation made by any Lender on its behalf, and shall survive the execution
and delivery to the Lenders hereof and thereof. The invalidity or
unenforceability of any provision hereof shall not affect the validity or
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enforceability of any other provision hereof, and any invalid or unenforceable
provision shall be modified so as to be enforced to the maximum extent of its
validity or enforceability. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
This Agreement and the other Credit Documents constitute the entire
understanding of the parties with respect to the subject matter hereof and
thereof and supersede all prior and contemporaneous understandings and
agreements, whether written or oral. This Agreement may be executed in any
number of counterparts which together shall constitute one instrument. This
Agreement, and any issue, claim or proceeding arising out of or relating to this
Agreement or any other Credit Document or the conduct of the parties hereto,
whether now existing or hereafter arising and whether in contract, tort or
otherwise, shall be governed by and construed in accordance with the laws of
the State of New York.
17. Status for Other Debt Documents. This Agreement refinances and replaces
the Credit Agreements dated as of November 28, 1995, May 28, 1997 and
April 16, 2001, respectively, each as amended, among the Company, certain of
its Subsidiaries, Fleet and the other Lenders parties thereto.
[The remainder of this page is intentionally blank]
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Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first above written.
BUCKEYE TECHNOLOGIES INC.
BUCKEYE FLORIDA CORPORATION
BUCKEYE LUMBERTON INC.
BKI FINANCE CORPORATION
BKI INTERNATIONAL INC.
By:/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
As an authorized officer of each of the
foregoing corporations
BUCKEYE FLORIDA, LIMITED PARTNERSHIP
By Buckeye Florida Corporation, general partner
By:/S/ ▇. ▇. ▇▇▇▇▇▇▇
--------------------
Title:
BUCKEYE MT. ▇▇▇▇▇ LLC
By Buckeye Lumberton Inc., manager
By:/S/ ▇. ▇. ▇▇▇▇▇▇▇
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Title:
BKI ASSET MANAGEMENT CORPORATION
BKI HOLDING CORPORATION
By:/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: PRESIDENT
BKI LENDING INC.
By:/S/ ▇▇▇▇▇ ▇▇▇▇▇
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Title: PRESIDENT
BUCKEYE TECHNOLOGIES CANADA INC.
By:/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title:
BFOL 2 Inc.
By: /S/ ▇. ▇. ▇▇▇▇▇▇▇
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Title:
BFC 2 Inc.
By: /S/ ▇. ▇. ▇▇▇▇▇▇▇
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Title:
BFC 3 LLC
By: BFOL 2 Inc., its manager
By: /S/ ▇. ▇. ▇▇▇▇▇▇▇
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Title:
BFOL 3 LLC
By: BFC 2 Inc., its manager
By: /S/ ▇. ▇. ▇▇▇▇▇▇▇
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Title:
MERFIN SYSTEMS INC.
By:/S/ ▇. ▇. ▇▇▇▇▇▇▇
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Title:
FLEET NATIONAL BANK
By /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: DIRECTOR
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
CITICORP NORTH AMERICA, INC.
By /S/ ▇▇▇▇▇▇ ▇▇▇▇
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Title: Vice President
Address:
UBS LOAN FINANCE LLC
By/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: ASSOCIATE DIRECTOR
By /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: ASSOCIATE DIRECTOR
Address:
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
AMERICAN AgCREDIT, PCA
By /S/ ▇▇▇▇ ▇▇▇▇▇▇
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Title:Vice President
Address: