Exhibit 99.1
EXECUTION COPY
$475,000,000
CREDIT AGREEMENT
Dated as of April 27, 2004
among
POLYMER GROUP, INC.,
as Borrower,
THE LENDERS REFERRED TO HEREIN,
CITICORP NORTH AMERICA, INC.,
as Administrative Agent, Documentation Agent,
First Lien Collateral Agent, Second Lien Collateral Agent and Syndication Agent,
and
CITIGROUP GLOBAL MARKETS INC.,
as Sole Lead Arranger and Sole Bookrunner
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.................................................................1
SECTION 1.02. Classification of Loans and Borrowings.......................................30
SECTION 1.03. Terms Generally..............................................................30
ARTICLE II
THE CREDITS
SECTION 2.01. Credit Commitments...........................................................31
SECTION 2.02. Procedure for Borrowing......................................................31
SECTION 2.03. Conversion and Continuation Options for Loans................................32
SECTION 2.04. Swingline Loans..............................................................33
SECTION 2.05. Optional and Mandatory Prepayments of Loans; Repayments of Term Loans........35
SECTION 2.06. Letters of Credit............................................................38
SECTION 2.07. Repayment of Loans; Evidence of Debt.........................................42
SECTION 2.08. Interest Rates and Payment Dates.............................................43
SECTION 2.09. Computation of Interest......................................................44
SECTION 2.10. Fees.........................................................................44
SECTION 2.11. Termination, Reduction or Adjustment of Commitments..........................45
SECTION 2.12. Inability to Determine Interest Rate; Unavailability of Deposits;
Inadequacy of Interest Rate................................................45
SECTION 2.13. Pro Rata Treatment and Payments..............................................46
SECTION 2.14. Illegality...................................................................47
SECTION 2.15. Requirements of Law..........................................................47
SECTION 2.16. Taxes........................................................................48
SECTION 2.17. Indemnity....................................................................50
SECTION 2.18. Change of Lending Office.....................................................51
SECTION 2.19. Sharing of Setoffs...........................................................51
SECTION 2.20. Assignment of Commitments Under Certain Circumstances........................51
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization, etc............................................................52
SECTION 3.02. Due Authorization, Non-Contravention, etc....................................52
SECTION 3.03. Government Approval, Regulation, etc.........................................53
SECTION 3.04. Validity, etc................................................................53
SECTION 3.05. Financial Information........................................................53
SECTION 3.06. No Material Adverse Effect...................................................54
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SECTION 3.07. Litigation...................................................................54
SECTION 3.08. Compliance with Laws and Agreements..........................................54
SECTION 3.09. Subsidiaries.................................................................54
SECTION 3.10. Ownership of Properties......................................................54
SECTION 3.11. Taxes........................................................................55
SECTION 3.12. Pension and Welfare Plans....................................................55
SECTION 3.13. Environmental................................................................56
SECTION 3.14. Regulations U and X..........................................................57
SECTION 3.15. Disclosure; Accuracy of Information; Pro Forma Balance Sheets and
Projected Financial Statements.............................................57
SECTION 3.16. Insurance....................................................................58
SECTION 3.17. Labor Matters................................................................58
SECTION 3.18. Solvency.....................................................................58
SECTION 3.19. Securities...................................................................59
SECTION 3.20. Indebtedness Outstanding.....................................................59
SECTION 3.21. Security Documents...........................................................59
SECTION 3.22. Anti-Terrorism Laws..........................................................60
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date...............................................................61
SECTION 4.02. Conditions to Each Credit Event..............................................68
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Financial Information, Reports, Notices, etc.................................68
SECTION 5.02. Compliance with Laws, etc....................................................71
SECTION 5.03. Maintenance of Properties....................................................71
SECTION 5.04. Insurance....................................................................71
SECTION 5.05. Books and Records; Visitation Rights.........................................72
SECTION 5.06. Environmental Covenant.......................................................72
SECTION 5.07. Information Regarding Collateral.............................................73
SECTION 5.08. Existence; Conduct of Business...............................................74
SECTION 5.09. Performance of Obligations...................................................74
SECTION 5.10. Casualty and Condemnation....................................................74
SECTION 5.11. Pledge of Additional Collateral..............................................75
SECTION 5.12. Further Assurances...........................................................75
SECTION 5.13. Use of Proceeds..............................................................76
SECTION 5.14. Payment of Taxes.............................................................76
SECTION 5.15. Equal Security for Loans and Notes...........................................76
SECTION 5.16. Guarantees...................................................................76
SECTION 5.17. Subordination of Intercompany Loans..........................................77
SECTION 5.18. Interest Rate Protection.....................................................77
SECTION 5.19. Post-Closing Collateral Matters..............................................77
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ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Indebtedness; Certain Equity Securities.......................................79
SECTION 6.02. Liens.........................................................................81
SECTION 6.03. Fundamental Changes; Line of Business.........................................83
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions.....................84
SECTION 6.05. Asset Sales...................................................................85
SECTION 6.06. Sale and Leaseback Transactions...............................................86
SECTION 6.07. Restricted Payments...........................................................86
SECTION 6.08. Transactions with Affiliates..................................................87
SECTION 6.09. Restrictive Agreements........................................................87
SECTION 6.10. Amendments or Waivers of Certain Documents; Prepayments of Certain
Indebtedness................................................................88
SECTION 6.11. No Other "Designated Senior Indebtedness".....................................88
SECTION 6.12. Interest Expense Coverage Ratio...............................................89
SECTION 6.13. Total Leverage Ratio..........................................................90
SECTION 6.14. Capital Expenditures..........................................................91
SECTION 6.15. Anti-Terrorism Law............................................................91
SECTION 6.16. Embargoed Person..............................................................92
SECTION 6.17. Anti-Money Laundering.........................................................92
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. Listing of Events of Default..................................................92
SECTION 7.02. Action if Bankruptcy..........................................................95
SECTION 7.03. Action if Other Event of Default..............................................95
SECTION 7.04. Action if Event of Termination................................................95
ARTICLE VIII
THE AGENTS
SECTION 8.01. The Agents....................................................................95
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices.......................................................................98
SECTION 9.02. Survival of Agreement.........................................................99
SECTION 9.03. Binding Effect................................................................99
SECTION 9.04. Successors and Assigns........................................................99
SECTION 9.05. Expenses; Indemnity..........................................................102
SECTION 9.06. Right of Setoff..............................................................104
SECTION 9.07. Applicable Law...............................................................104
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SECTION 9.08. Waivers; Amendment...........................................................104
SECTION 9.09. Interest Rate Limitation.....................................................109
SECTION 9.10. Entire Agreement.............................................................109
SECTION 9.11. WAIVER OF JURY TRIAL.........................................................110
SECTION 9.12. Severability.................................................................110
SECTION 9.13. Counterparts.................................................................110
SECTION 9.14. Headings.....................................................................110
SECTION 9.15. Jurisdiction; Consent to Service of Process..................................110
SECTION 9.16. Confidentiality..............................................................111
SECTION 9.17. Citigroup Direct Website Communications......................................112
SECTION 9.18. Collateral Agent as Joint Creditor...........................................113
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EXHIBIT A Form of Administrative Questionnaire
EXHIBIT B Form of Borrowing Request
EXHIBIT C Form of Assignment and Acceptance
EXHIBIT D Form of Collateral Sharing Agreement
EXHIBIT E Form of Compliance Certificate
EXHIBIT F Form of Indemnity, Subrogation and Contribution Agreement
EXHIBIT G-1 Form of First Lien Term Note
EXHIBIT G-2 Form of Second Lien Term Note
EXHIBIT G-3 Form of Revolving Note
EXHIBIT G-4 Form of Swingline Note
EXHIBIT H Form of Closing Certificate
EXHIBIT I Form of Guarantee Agreement
EXHIBIT J Form of Pledge Agreement
EXHIBIT K Form of Security Agreement
EXHIBIT L Form of Opinion of Local Counsel
EXHIBIT M Form of Solvency Certificate
EXHIBIT N-1 Form of First Lien Mortgage
EXHIBIT N-2 Form of Second Lien Mortgage
EXHIBIT O Form of Landlord Access Agreement
SCHEDULE 2.01 Lenders and Commitments
SCHEDULE 3.05 Financial Information
SCHEDULE 3.09 Subsidiaries
SCHEDULE 3.10(b) Leased and Owned Real Property
SCHEDULE 3.13(a) Facilities/Properties Not in Compliance with Environmental
Laws
SCHEDULE 3.13(b) Environmental Claims
SCHEDULE 3.13(c) Hazardous Materials
SCHEDULE 3.16 Insurance
SCHEDULE 3.19 Securities
SCHEDULE 3.20(a) Indebtedness to Be Paid
SCHEDULE 3.20(b) Liens to Be Terminated
SCHEDULE 3.21(d) Mortgage Filing Offices
SCHEDULE 4.01(f) Local Counsel
SCHEDULE 4.01(w)(A) Mortgaged Properties
SCHEDULE 4.01(w)(C) Title Insurance Amounts
SCHEDULE 5.19(a) Post-Closing Mortgages
SCHEDULE 5.19(b) Post-Closing Title Insurance
SCHEDULE 5.19(c) Post-Closing Surveys
SCHEDULE 5.19(d) Post-Closing Lien Searches
SCHEDULE 6.01 Existing Indebtedness
SCHEDULE 6.02 Existing Liens
SCHEDULE 6.04 Existing Investments
SCHEDULE 6.09 Existing Restrictions
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CREDIT AGREEMENT (this "AGREEMENT") dated as of April 27, 2004, among
POLYMER GROUP, INC., a Delaware corporation (the "BORROWER"); the financial
institutions listed on SCHEDULE 2.01, as such Schedule may from time to time be
supplemented and amended (the "LENDERS"); CITICORP NORTH AMERICA, INC., as
administrative agent (in such capacity, the "ADMINISTRATIVE AGENT") for the
Lenders, as documentation agent (in such capacity, the "DOCUMENTATION AGENT"),
as syndication agent (in such capacity, the "SYNDICATION AGENT"), and as
collateral agent for the First Lien Secured Parties (the "FIRST LIEN COLLATERAL
AGENT"), and as collateral agent for the Second Lien Secured Parties (in such
capacity, the "SECOND LIEN COLLATERAL AGENT"); and CITIGROUP GLOBAL MARKETS INC.
("CGMI"), as sole lead arranger and sole bookrunner (in such capacity, the "LEAD
ARRANGER").
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR BORROWING" means a Borrowing comprised of ABR Loans.
"ABR LOAN" means any Loan bearing interest at a rate determined by
reference to the Alternate Base Rate in accordance with the provisions of
Article II.
"ACQUISITION CONSIDERATION" means the purchase consideration for any
Permitted Acquisition and all other payments by the Borrower or any of its
Subsidiaries in exchange for, or as part of, or in connection with any Permitted
Acquisition, whether paid in cash or by exchange of Equity Interests or of
assets, by the assumption of Indebtedness or otherwise and whether payable at or
prior to the consummation of such Permitted Acquisition or deferred for payment
at any future time, whether or not any such future payment is subject to the
occurrence of any contingency, and includes any and all payments representing
the purchase price and any assumptions of Indebtedness, "earn-outs" and other
agreements to make any payment the amount of which is, or the terms of payment
of which are, in any respect subject to or contingent upon the revenues, income,
cash flow or profits (or the like) of any person or business.
"ADDITIONAL COLLATERAL" has the meaning assigned to such term in
Section 5.11.
"ADJUSTED LIBO RATE" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"ADMINISTRATIVE AGENT" has the meaning assigned to such term in the
preamble hereto.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire
in the form of EXHIBIT A.
"AFFILIATE" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or
any committee with responsibility for administering, any Plan). A Person shall
be deemed to be "controlled by" any other Person if such other Person possesses,
directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully diluted
basis) of such Person having ordinary voting power for the election of
directors or managing general partners; or
(b) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"AGENT FEES" has the meaning assigned to such term in Section 2.10(c).
"AGENTS" means the Administrative Agent and the Collateral Agents.
"AGGREGATE REVOLVING CREDIT EXPOSURE" means the aggregate amount of
the Revolving Lenders' Revolving Credit Exposures.
"AGREEMENT" has the meaning assigned to such term in the preamble
hereto.
"ALTERNATE BASE RATE" means for any day, a rate per annum equal to the
highest of (a) the Administrative Agent's Base Rate in effect on such day, (b)
0.5% per annum above the latest three-week moving average of secondary market
morning offering rates in the United States for three-month certificates of
deposit of major United States money market banks, such three-week moving
average being determined weekly on each Monday (or, if any such day is not a
Business Day, on the next succeeding Business Day) for the three-week period
ending on the next previous Friday by the Administrative Agent on the basis of
such rates reported by certificate of deposit dealers to and published by the
Federal Reserve Bank of
New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by the
Administrative Agent from three
New York certificate of deposit dealers of
recognized standing selected by the Administrative Agent, in either case
adjusted to the nearest 0.25% or, if there is no nearest 0.25%, to the next
higher 0.25% (the "CERTIFICATE OF DEPOSIT RATE"), and (c) the Federal Funds Rate
in effect on such day plus 1/2 of 1%. Any change in the Alternate Base Rate due
to a change in the Base Rate, the Certificate of Deposit Rate or the Federal
Funds Rate shall be effective as of the opening of business on the effective day
of such change in the Base Rate, the Certificate of Deposit Rate or the Federal
Funds Rate, respectively.
"APPLICABLE RATE" means, for any day, (i) with respect to First Lien
Term Loans, (A) 2.25% PER ANNUM, in the case of ABR Loans, and (B) 3.25% PER
ANNUM, in the case of Eurodollar Loans, (ii) with respect to Second Lien Term
Loans, (A) 5.25% PER ANNUM, in the case of ABR Loans, and (B) 6.25% PER ANNUM,
in the case of Eurodollar Loans, and (iii) with respect to Revolving Loans, (A)
before the Trigger Date, (x) 2.00% PER ANNUM, in the case of ABR Loans, and (y)
3.00% PER ANNUM, in the case of Eurodollar Loans, and (B) on and after the
Trigger Date, the applicable rate PER ANNUM set forth in the table below (x)
under the caption "ABR Revolving Loans Spread," in the case of ABR Loans, and
(y) under the caption "Eurodollar Revolving Loans Spread," in the case of
Eurodollar Loans, in each case based upon the Total Leverage Ratio as of the
most recent determination date:
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Total ABR Eurodollar
Leverage Revolving Loans Revolving Loans
Ratio Spread Spread
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GREATER THAN 4.25 to 1.00 2.00% 3.00%
LESS THAN OR EQUAL TO 4.25 to 1.00 1.75% 2.75%
GREATER THAN 3.75 to 1.00
LESS THAN 3.75 to 1.00 1.50% 2.50%
GREATER THAN 3.25 to 1.00
LESS THAN OR EQUAL TO 3.25 to 1.00 1.25% 2.25%
For purposes of such calculation of the Applicable Rate with respect
to Revolving Loans on and after the Trigger Date, (i) the Total Leverage Ratio
shall be determined as of the end of each fiscal quarter of the Borrower's
fiscal year based upon the Borrower's consolidated financial statements
delivered pursuant to Section 5.01(a) or (b) and (ii) each change in the
Applicable Rate resulting from a change in the Total Leverage Ratio shall be
effective three (3) Business Days after the date on which the Administrative
Agent shall have received the applicable financial statements and a Compliance
Certificate calculating the Total Leverage Ratio. If at any time the Borrower
has not submitted to the Administrative Agent the applicable information as and
when required under Section 5.01(a) or (b), the Applicable Rate shall be the
highest rate set forth in the table above until such time as the Borrower has
provided the information required under Section 5.01(a) or (b). Within one (1)
Business Day of receipt of the applicable information as and when required under
Section 5.01(a) or (b), the Administrative Agent shall give each Lender
telefacsimile or telephonic notice (confirmed in writing) of the Applicable Rate
in effect from such date.
"ASIAN FUNDING" means any incurrence of Indebtedness pursuant to
Section 6.01(a)(vi), any issuance of Disqualified Equity Interests pursuant to
Section 6.01(b) or any issuance or sale of Equity Interests pursuant to Section
6.05(viii).
"ASIAN FUNDING VEHICLE" means Nanhai Nanxin Non-Woven Co. Ltd or any
newly created Subsidiary formed and used for the purpose of funding the
Company's operations in China, which entity, at the time of formation, shall
have minimal assets.
"ASSET SALE" means any direct or indirect sale, transfer, lease,
conveyance or other disposition by the Borrower or any of its Subsidiaries of
any of its Property, including any sale or issuance of any Equity Interests of
any Subsidiary, except (a) sales, dispositions and leases permitted by Section
6.05 (other than subsection (ix) thereof) and (b) any such transaction or series
of transactions which, if an Asset Sale, would not generate Net Proceeds in
excess of $2.0 million (or, when taken together with all other such
transactions, in excess of $5.0 million in any Fiscal Year).
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04(b)), and accepted by the Administrative Agent, in the
form of EXHIBIT C or such other form as shall be approved by the Administrative
Agent.
"ATTRIBUTABLE INDEBTEDNESS" means, when used with respect to any Sale
and Leaseback Transaction, as at the time of determination, the present value
(discounted at the interest rate determined by the Borrower in good faith as its
cost of borrowing for Indebtedness of comparable term) of the total obligations
of the lessee for rental payments during the remaining term of the lease
included
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in any such Sale and Leaseback Transaction; PROVIDED that if such Sale and
Leaseback Transaction results in a Capital Lease Obligation, the amount of
Indebtedness represented thereby will be determined in accordance with the
definition of "Consolidated Interest Expense".
"AUTHORIZED OFFICER" means, with respect to the Borrower, those of its
officers whose signature and incumbency has been certified to the Administrative
Agent, the Collateral Agents and the Lenders by the Secretary of the Borrower in
a certificate dated the Effective Date or any successor thereto.
"AVAILABLE REVOLVING CREDIT COMMITMENT" means as to any Revolving
Lender, at any time of determination, an amount equal to such Revolving Lender's
Revolving Credit Commitment at such time MINUS such Revolving Lender's Revolving
Credit Exposure at such time.
"BASE AMOUNT" has the meaning assigned to such term in Section 6.14.
"BASE RATE" means the rate of interest per annum publicly announced
from time to time by the Administrative Agent as its base rate in effect at its
principal office in
New York City (the Base Rate not being intended to be the
lowest rate of interest charged by the Administrative Agent in connection with
extensions of credit to debtors) (any change in such rate announced by the
Administrative Agent shall take effect at the opening of business on the day
specified in the public announcement of such change).
"BOARD OF GOVERNORS" means the Board of Governors of the Federal
Reserve System of the United States.
"BORROWER" has the meaning ascribed to such term in the preamble to
this Agreement.
"BORROWING" means a Loan or group of Loans to the Borrower of the same
Class, Priority Class and Type made (including through a conversion or
continuation) by the applicable Lenders on a single date and as to which a
single Interest Period is in effect.
"BORROWING DATE" means any Business Day specified in a notice pursuant
to Section 2.02 as a date on which the Borrower requests Loans to be made
hereunder.
"BORROWING REQUEST" has the meaning assigned to such term in Section
2.02(a).
"BUSINESS DAY" means a day other than a Saturday, Sunday or other day
on which commercial banks in
New York,
New York are authorized or required by
law to close.
"CANADIAN DOLLARS" and "CDN. $" means lawful money of Canada.
"CAPITAL EXPENDITURES" means, for any period, any and all expenditures
made by the Borrower or any of its Subsidiaries in such period for assets added
to or reflected in its property, plant and equipment accounts or other similar
capital asset accounts or comparable items (which, for the avoidance of doubt,
shall not include normal replacements and maintenance which are properly charged
to current operations) or any other capital expenditures that are, or should be,
set forth as "additions to plant, property and equipment" on the financial
statement prepared in accordance with GAAP, whether such asset is purchased for
cash or financed as an account payable or by the incurrence of Indebtedness,
accrued as a liability or otherwise, but excluding expenditures made in
connection
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with the repair, replacement, substitution or restoration of property pursuant
to Section 2.05(c)(iv) or in connection with the reinvestment in capital assets
pursuant to Section 2.05(c)(iii).
"CAPITAL LEASE OBLIGATIONS" means all monetary or financial
obligations of the Borrower and its Subsidiaries under any leasing or similar
arrangement conveying the right to use real or personal property, or a
combination thereof, which, in accordance with GAAP, would or should be
classified and accounted for as capital leases, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP and the stated maturity thereof shall be the date of the last payment
of rent or any other amount due under such lease prior to the first date on
which such lease may be terminated by the lessee without payment of a penalty.
"CASH EQUIVALENTS" means Permitted Investments (other than as
described in clause (g) of the definition thereof).
"CASH INTEREST EXPENSE" means, for any period, Consolidated Interest
Expense for such period, excluding any interest expense not payable in cash
(such as, for example, amortization of discount and amortization of debt
issuance costs) and excluding any interest expense on the Convertible Notes
except to the extent actually paid in cash, net of interest income.
"CERCLA" means the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System List.
"CERTIFICATE OF DEPOSIT RATE" has the meaning assigned to such term in
the definition of "Alternate Base Rate".
"CGMI" has the meaning assigned to such term in the preamble hereto.
"CHANGE IN CONTROL" means any one or more of the following events
shall occur and be continuing:
(i) any Person (other than the GOF Holders) shall own,
collectively, on a fully-diluted basis (in other words, giving effect to
the exercise of any warrants, options and conversion and other rights),
more than 35% of the aggregate shares of voting capital stock of the
Borrower (representing at least 35% of the votes that may be cast in an
election of directors of the Borrower); or
(ii) during any period of 12 consecutive calendar months, at least
a majority of the Board of Directors of the Borrower shall no longer be
composed of individuals (w) who were appointed by one or more of the GOF
Holders, (x) who were members of said Board on the first day of such
period, (y) whose election or nomination to said Board was approved by
individuals referred to in clause (x) above constituting at the time of
such election or nomination at least a majority of said Board or (z) whose
election or nomination to said Board was approved by individuals referred
to in clauses (w), (x) and (y) above constituting at the time of such
election or nomination at least a majority of said Board.
"CHARGES" has the meaning assigned to such term in Section 9.09.
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"CLASS" when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
First Lien Term Loans, Second Lien Term Loans or Swingline Loans, and when used
in reference to any Commitment, refers to whether such Commitment is a Revolving
Credit Commitment, First Lien Term Commitment or Second Lien Term Commitment,
and when used in reference to any Lender, refers to whether such Lender is a
Revolving Lender, a First Lien Term Lender or a Second Lien Term Lender.
"CLOSING CERTIFICATE" means a certificate substantially in the form of
EXHIBIT H.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time.
"COLLATERAL" means each Mortgaged Property and any and all other
Property of whatever kind and nature pledged as collateral under any Security
Document.
"COLLATERAL ACCOUNT" means the collateral account or sub-account
established and maintained by the Collateral Agent in its name as Collateral
Agent for the benefit of the Secured Parties, in accordance with the provisions
of the Security Agreement.
"COLLATERAL AGENTS" means the First Lien Collateral Agent and the
Second Lien Collateral Agent, collectively; PROVIDED that (except where this
Agreement refers to "Collateral Agents", "each Collateral Agent", "either
Collateral Agent" "the applicable Collateral Agent" or the First Lien Collateral
Agent or the Second Lien Collateral Agent, individually) prior to the Discharge
of First Lien Obligations, each reference herein to "Collateral Agent" shall be
deemed to be a reference to the First Lien Collateral Agent, and after the
Discharge of First Lien Obligations, each such reference shall be deemed to be a
reference to the Second Lien Collateral Agent. Any reference to the "Collateral
Agents" when only one of the First Lien Obligations or the Second Lien
Obligations remain outstanding (other than with respect to indemnity or other
obligations of the Loan Parties which expressly survive the discharge of the
First Lien Obligations or the Second Lien Obligations, as applicable) shall mean
the applicable Collateral Agent of the Priority Class under which the
obligations remain outstanding.
"COLLATERAL SHARING AGREEMENT" means the Collateral Sharing Agreement,
substantially in the form of EXHIBIT D, between the Borrower and the Collateral
Agents for the benefit of the Secured Parties.
"COMMITMENT" means, with respect to any Lender, such Lender's
Revolving Credit Commitment, First Lien Term Commitment or Second Lien Term
Commitment or any combination thereof (as the context requires).
"COMMITMENT FEE" has the meaning assigned to such term in Section
2.10(a).
"COMMITMENT FEE AVERAGE DAILY AMOUNT" has the meaning assigned to such
term in Section 2.10(a).
"COMMITMENT FEE PERCENTAGE" means, for any day, 0.50% PER ANNUM.
"COMMITMENT FEE TERMINATION DATE" has the meaning assigned to such
term in Section 2.10(a).
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"COMMITMENT LETTER" means the Commitment Letter dated March 15, 2004
among CGMI, Citicorp North America, Inc. and the Borrower.
"COMMITMENT PERCENTAGE" means the percentage of the Total Revolving
Credit Commitment represented by such Lender's Revolving Credit Commitment. If
the Revolving Credit Commitments have terminated or expired, the Commitment
Percentage shall be determined based upon the Revolving Credit Commitments most
recently in effect, giving effect to any assignments.
"COMMUNICATIONS" has the meaning assigned to such term in Section
9.17(a).
"COMPLIANCE CERTIFICATE" has the meaning assigned to such term in
Section 5.01(a) and shall be substantially in the form of EXHIBIT E.
"CONDUIT FINANCING ARRANGEMENT" has the meaning assigned to such term
in Section 2.16.
"CONSOLIDATED CURRENT ASSETS" means, as at any date of determination,
the total assets of Borrower and its Subsidiaries which may properly be
classified as current assets on a consolidated balance sheet of Borrower and its
Subsidiaries in accordance with GAAP.
"CONSOLIDATED CURRENT LIABILITIES" means, as at any date of
determination, the total liabilities of Borrower and its Subsidiaries which may
properly be classified as current liabilities (other than the current portion of
any Loans) on a consolidated balance sheet of Borrower and its Subsidiaries in
accordance with GAAP.
"CONSOLIDATED EBITDA" means, for any period, Consolidated Net Income
for such period, plus, without duplication and to the extent deducted in
determining Consolidated Net Income for such period, the sum of: (a) the
aggregate amount of Consolidated Interest Expense for such period, (b) the
aggregate amount of income and franchise tax expense for such period, (c) all
amounts attributable to depreciation and amortization for such period, (d) all
unusual or non-recurring non-cash charges during such period (including unusual
or non-recurring losses for any period ending on or before the last day of the
fiscal year ending January 3, 2004 as a result of such "fresh start" accounting
procedures, but excluding any non-cash item of expense requiring an accrual or
reserve for future cash expense), (e) plant realignment costs incurred on or
before January 3, 2004, (f) all fees and expenses paid during such period
directly relating to the refinancing of the Existing
Credit Agreement and (g)
all non-cash stock compensation expense; and minus, without duplication and to
the extent included in determining Consolidated Net Income for such period, all
non-recurring non-cash gains during such period and all non-recurring gains for
any period ending on or before the last day of the fiscal year ending January 3,
2004 as a result of "fresh start" accounting procedures associated with the
Reorganization Plan and the emergence of the Borrower from bankruptcy; all as
determined on a consolidated basis with respect to the Borrower and its
Subsidiaries in accordance with GAAP. Other than for purposes of calculating
Excess Cash Flow, Consolidated EBITDA shall be calculated on a Pro Forma Basis
to give effect to the Transactions, any Permitted Acquisition and Asset Sales
consummated at any time on or after the first day of the Test Period thereof as
if the Transactions and each such Permitted Acquisition had been effected on the
first day of such period and as if each such Asset Sale had been consummated on
the day prior to the first day of such period.
-7-
"CONSOLIDATED INDEBTEDNESS" means, at a particular date, the aggregate
stated balance sheet amount of all Indebtedness of the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with GAAP at such
date.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the total
consolidated interest expense of Borrower and its Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP PLUS, without
duplication:
(a) imputed interest on Capital Lease Obligations and Attributable
Indebtedness of Borrower and its Subsidiaries for such period;
(b) commissions, discounts and other fees and charges owed by
Borrower or any of its Subsidiaries with respect to letters of credit
securing financial obligations, bankers' acceptance financing and
receivables financings for such period;
(c) amortization of debt issuance costs, debt discount or premium
and other financing fees and expenses incurred by Borrower or any of its
Subsidiaries for such period;
(d) all interest paid or payable with respect to discontinued
operations of Borrower or any of its Subsidiaries for such period;
(e) the interest portion of any deferred payment obligations of
Borrower or any of its Subsidiaries for such period; and
(f) all interest on any Indebtedness of Borrower or any of its
Subsidiaries of the type described in clause (iii) or (x) of the definition
of "Indebtedness" for such period
Consolidated Interest Expense and Cash Interest Expense (other than
for purposes of calculating Excess Cash Flow) shall be calculated on a Pro Forma
Basis to give effect to any Indebtedness incurred, assumed or permanently repaid
or extinguished during the relevant Test Period in connection with the
Transactions, any Permitted Acquisitions and Asset Sales as if such incurrence,
assumption, repayment or extinguishing had been effected on the first day of
such period.
"CONSOLIDATED NET INCOME" means, for any period, the sum of net income
(or loss) and minority interests for such period of the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with GAAP, but
excluding: (a) any income (or loss) of any Person if such Person is not a
Subsidiary of the Borrower, except that the aggregate amount of cash actually
distributed by such Person during such period to the Borrower or a Subsidiary of
the Borrower as a dividend or other distribution shall be included; (b) the
amount of any cash distributed by any non-Wholly Owned Subsidiary to a Person
other than the Borrower or any of its Subsidiaries; (c) gains and losses due
solely to fluctuations in currency values and the related tax effects determined
in accordance with GAAP for such period; (d) unrealized gains and losses with
respect to Hedging Agreements for such period; and (e) the income of any
Subsidiary of the Borrower to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary of that income is
prohibited by operation of the terms of its charter or any agreement,
instrument, judgment, decree, statute, rule or governmental regulation
applicable to such Subsidiary.
"CONTESTED COLLATERAL LIEN CONDITIONS" means (a) any proceeding
instituted contesting such Lien shall conclusively operate to stay the sale or
forfeiture of any portion of the Collateral on
-8-
account of such Lien; and (b) in the event the amount of any such Lien shall
exceed $2.0 million, the Loan Party or its applicable Subsidiary shall either
obtain a bond or maintain cash reserves, in either case, in an amount sufficient
to pay and discharge such Lien and the Collateral Agent's reasonable estimate of
all interest and penalties related thereto.
"CONVERTIBLE NOTES" means the 10% Convertible Subordinated Notes due
2007 of the Borrower.
"CONVERTIBLE NOTES DOCUMENTS" means the Convertible Notes, the
Convertible Notes Indenture and all other material documents executed and
delivered with respect to the Convertible Notes or the Convertible Notes
Indenture, as in effect on the Effective Date and as the same may be modified,
supplemented, restated and/or amended from time to time in accordance with the
terms hereof and thereof.
"CONVERTIBLE NOTES INDENTURE" means the Indenture, dated as of March
5, 2003, among the Borrower, the guarantors named therein and Wilmington Trust
Company, as Trustee, as in effect on the Effective Date and as the same may be
modified, supplemented and/or amended from time to time in accordance with the
terms hereof and thereof.
"CREDIT EVENT" has the meaning assigned to such term in Section 4.02.
"DEBT INCURRENCE" has the meaning assigned to such term in Section
2.05(c)(ii).
"DEFAULT" means any Event of Default, any Event of Termination and any
event or condition which upon notice, lapse of time or both would constitute an
Event of Default or Event of Termination.
"DESTRUCTION" means any and all damage to, or loss or destruction of,
or loss of title to, all or any portion of the Property of the Borrower or any
of its Subsidiaries.
"DISCHARGE OF FIRST LIEN OBLIGATIONS" means the occurrence of all of
the following: (i) termination of all commitments to extend credit that would
constitute First Lien Obligations, (ii) payment in full in cash or Cash
Equivalents of all First Lien Obligations (other than contingent indemnification
obligations not then claimed or due) and (iii) termination, cancellation or cash
collateralization of all outstanding Letters of Credit constituting First Lien
Obligations.
"DISQUALIFIED EQUITY INTERESTS" has the meaning assigned to such term
in Section 6.01(b).
"DOCUMENTATION AGENT" has the meaning assigned to such term in the
preamble hereto.
"DOLLARS" or "$" means lawful money of the United States of America.
"DOMESTIC SUBSIDIARY" means any Subsidiary of the Borrower that is not
a Non-U.S. Subsidiary.
"EFFECTIVE DATE" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.08).
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"ENVIRONMENT" means ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, natural resources such as flora and fauna, or as otherwise
defined in any applicable Environmental Law.
"ENVIRONMENTAL CLAIM" means any written accusation, allegation, notice
of violation, claim, demand, order, directive, cost recovery action or other
cause of action by, or on behalf of, any Governmental Authority or any other
Person for damages, injunctive or equitable relief, personal injury (including
sickness, disease or death), Remedial Action costs, tangible or intangible
property damage, natural resource damages, nuisance, pollution, any adverse
effect on the Environment caused by any Hazardous Material, or for fines,
penalties or restrictions, resulting from or based upon: (a) the existence, or
the continuation of the existence, of a Release or threatened Release (including
sudden or non-sudden, accidental or non-accidental Releases); (b) exposure to
any Hazardous Material; (c) the presence, generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Material; or (d)
the violation or alleged violation of any Environmental Law or Environmental
Permit.
"ENVIRONMENTAL LAWS" means any and all applicable treaties, laws
(including common law), rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the Environment,
preservation or reclamation of natural resources, the management, Release or
threatened Release of, or exposure to, any Hazardous Material.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise
(including, but not limited to, any liability for damages, natural resource
damage, costs of environmental remediation, administrative oversight costs,
fines, penalties or indemnities), of the Borrower or any of its Subsidiaries
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials or (d) the Release or threatened Release of any Hazardous Materials
into the Environment.
"ENVIRONMENTAL PERMIT" means any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"EQUITY INTERESTS" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"EQUITY ISSUANCE" has the meaning assigned to such term in Section
2.05(c)(i).
"EQUITY RIGHTS" means all securities convertible or exchangeable for
Equity Interests and all warrants, options or other rights to purchase or
subscribe for any Equity Interests, whether or not presently convertible,
exchangeable or exercisable.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with any Loan Party, is treated as a single
employer under Sections 414(b) or (c) of the Code, and for the purpose of
Section 302 of ERISA and/or Section 412, 4971, 4977, 4980D, 4980E and/or
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each "applicable section" under Section 414(t)(2) of the Code, within the
meaning of Section 414(b), (c), (m) or (o) of the Code.
"ERISA EVENT" means (a) any "reportable event," as defined in Section
4043(c) of ERISA or the regulations issued thereunder, with respect to a Pension
Plan (other than an event for which the 30-day notice period is waived by
regulation); (b) the existence with respect to any Pension Plan of an
"accumulated funding deficiency" (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived, the failure to make by its due
date a required installment under Section 412(m) of the Code with respect to any
Pension Plan or the failure to make any required contribution to a Multiemployer
Plan; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an application for a waiver of the minimum funding standard with
respect to any Pension Plan; (d) the incurrence by any Loan Party or ERISA
Affiliate of any liability under Title IV of ERISA with respect to any Pension
Plan; (e) the receipt by any Loan Party or ERISA Affiliate from the PBGC or a
plan administrator of any notice relating to an intention to terminate any
Pension Plan, to appoint a trustee to administer any Pension Plan, or to take
any other action with respect to a Pension Plan that could result in material
liability to a Loan Party or a Subsidiary, or the occurrence of any event or
condition which could reasonably be expected to constitute grounds under ERISA
for the termination of or the appointment of a trustee to administer, any
Pension Plan; (f) the incurrence by any Loan Party or ERISA Affiliate of any
liability with respect to the withdrawal or partial withdrawal from any Pension
Plan or Multiemployer Plan; (g) the receipt by a Loan Party or ERISA Affiliate
of any notice concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA; (h) the making of
any amendment to any Pension Plan which could result in the imposition of a lien
or the posting of a bond or other security; or (i) the occurrence of a nonexempt
prohibited transaction (within the meaning of Section 4975 of the Code or
Section 406 of ERISA) which could result in liability to a Loan Party or any of
the Subsidiaries.
"EURODOLLAR BORROWING" means a Borrowing comprised of Eurodollar
Loans.
"EURODOLLAR LOAN" means any Loan bearing interest at a rate determined
by reference to the Adjusted LIBO Rate in accordance with the provisions of
Article II.
"EVENT OF DEFAULT" has the meaning assigned to such term in Section
7.01.
"EVENT OF TERMINATION" has the meaning assigned to such term in
Section 7.01.
"EXCESS CASH FLOW" means, for the Borrower and its Subsidiaries, for
any period, (a) the sum, without duplication, of (i) Consolidated EBITDA for
such period, (ii) extraordinary or non-recurring cash receipts of the Borrower
and its Subsidiaries, if any, during such period and not included in
Consolidated EBITDA, (iii) reductions to non-cash working capital of the
Borrower and its Subsidiaries for such period (i.e., the decrease, if any, in
Consolidated Current Assets minus Consolidated Current Liabilities from the
beginning to the end of such period), and (iv) to the extent subtracted in
determining Consolidated EBITDA, all items that did not result from a cash
payment by Borrower or any of its Subsidiaries on a consolidated basis during
such period, minus (b) the sum, without duplication, of (i) the amount of any
cash income and franchise taxes paid by the Borrower and its Subsidiaries with
respect to such period, (ii) Cash Interest Expense of the Borrower and its
Subsidiaries during such period, (iii) Capital Expenditures committed or made in
cash only from internally generated funds in accordance with Section 6.14 during
such period (and not deducted from Excess Cash Flow in any prior year), (iv)
principal repayments permitted by Section 6.10 and optional
-11-
prepayments (to the extent such repayments and optional prepayments are made
from internally generated funds) of Indebtedness made by the Borrower and its
Subsidiaries during such period (other than repayments or prepayments of
intercompany loans); provided that, with respect to payments of Revolving Loans,
such payments shall only be included in this clause (iv) to the extent that such
payment is accompanied by a simultaneous reduction of the Revolving Credit
Commitments), (v) extraordinary or non-recurring expenses and losses to the
extent paid in cash by the Borrower and its Subsidiaries, if any, during such
period and not included in Consolidated EBITDA, (vi) additions to non-cash
working capital of the Borrower and its Subsidiaries for such period (i.e., the
increase, if any, in Consolidated Current Assets minus Consolidated Current
Liabilities from the beginning to the end of such period), (vii) the amount of
all fees and expenses paid in cash during such period directly relating to the
refinancing of the Existing
Credit Agreement, and (viii) to the extent added to
determine Consolidated EBITDA, all items that did not result from a cash payment
to Borrower or any of its Subsidiaries on a consolidated basis during such
period; PROVIDED that, to the extent otherwise included herein, the Net Proceeds
of Asset Sales, Destructions, Takings, Debt Incurrences and Equity Issuances
which are applied towards the prepayment of Loans and/or the reduction of
Commitments and/or the repair, replacement, substitution, restoration of or
reinvestment in property in accordance with Section 2.05(c) shall be excluded
from the calculation of Excess Cash Flow.
"EXCESS CASH FLOW PERCENTAGE" means, as of any date of determination,
(i) 75% if the Total Leverage Ratio is greater than or equal to 4.25x as of such
date, (ii) 50% if the Total Leverage Ratio is less than 4.25x but greater than
or equal to 3.0x as of such date and (iii) 25% if the Total Leverage Ratio is
less than 3.0x as of such date.
"EXCHANGE" has the meaning set forth in Section 4.01(h).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCLUDED EQUITY ISSUANCE" means (a) the issuance of any warrants,
options or Equity Interests to directors, officers or employees of the Borrower
or any of its Subsidiaries pursuant to employee benefit plans established in the
ordinary course of business and any Equity Interests of the Borrower issued upon
the exercise of such warrants or options, (b) any issuance of Equity Interests
(other than Disqualified Equity Interests) of the Borrower to the GOF Holders
and (c) any issuance of Equity Interests (other than Disqualified Equity
Interests) of the Borrower to the extent the proceeds thereof are
contemporaneously applied to fund Permitted Acquisitions permitted by Section
6.04 or to fund Capital Expenditures permitted by Section 6.14.
"EXISTING
CREDIT AGREEMENT" means the Third Amended, Restated and
Consolidated
Credit Agreement dated as of March 5, 2003 between the Borrower and
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, as amended.
"FEDERAL FUNDS RATE" means, for any day, the weighted average of the
rates (rounded upwards, if necessary, to the nearest 1/100th of 1%) on overnight
federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of
New York; PROVIDED that (a) if the day for which
such rate is to be determined is not a Business Day, the Federal Funds Rate for
such day shall be such rate for such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (b) if such rate is
not so published for any day which is a Business Day, the Federal Funds Rate for
such day shall be the average of the quotations for the day of such transactions
-12-
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by it.
"FEE LETTER" means the Fee Letter dated March 15, 2004 among CGMI,
Citicorp North America, Inc. and the Borrower.
"FEES" means the Commitment Fees, the LC Fees and the Agent Fees.
"FINANCIAL COVENANTS" means those covenants and agreements of the Loan
Parties set forth in Sections 6.12 through 6.14, inclusive.
"FINANCIAL OFFICER" of any corporation, partnership or other entity
means the chief financial officer, the principal accounting officer, Treasurer
or Controller of such corporation, partnership or other entity.
"FIRST LIEN COLLATERAL AGENT" has the meaning assigned to such term in
the preamble hereto.
"FIRST LIEN COMMITMENTS" means the Revolving Credit Commitments, the
Swingline Commitments and the First Lien Term Commitments.
"FIRST LIEN LOANS" means the Revolving Loans, the Swingline Loans and
the First Lien Term Loans.
"FIRST LIEN OBLIGATIONS" means the (a) unpaid principal of and
interest on (including interest accruing after the maturity of the First Lien
Loans made to the Borrower and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the First Lien Loans made to or LC
Disbursements made pursuant to Letters of Credit issued for the account of the
Borrower and all other obligations and liabilities of the Loan Parties to any
First Lien Secured Party, whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, this Agreement, any other Loan Document or
any other document made, delivered or given in connection herewith, whether on
account of principal, interest, fees, indemnities, costs or expenses (including,
without limitation, all reasonable fees, charges and disbursements of counsel),
or otherwise, (b) the due and punctual payment and performance of all
obligations of the Borrower and the other Loan Parties under each interest rate
protection agreement constituting a Hedging Agreement relating to the Loans
entered into with any counterparty that was a Lender or a Lender Affiliate at
the time such interest rate protection agreement was entered into and (c) the
due and punctual payment and performance of all obligations of the Loan Parties
in respect of overdrafts and related liabilities owed to any Lender, any Lender
Affiliate or any Agent arising from treasury, depositary and cash management
services or in connection with any automated clearinghouse transfer of funds.
"FIRST LIEN SECURED PARTIES" means the Agents, each Lender that holds
First Lien Loans or has First Lien Commitments (in its capacity as such), each
holder of any Related Hedging Obligations (in its capacity as such) and each
person holding Overdraft Obligations (in its capacity as such).
-▇▇-
"▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇" means a Borrowing comprised of First Lien
Term Loans on the Effective Date.
"FIRST LIEN TERM COMMITMENT" means, with respect to each Lender, the
commitment, if any, of such Lender to make a First Lien Term Loan hereunder on
the Effective Date, expressed as an amount representing the maximum principal
amount of the First Lien Term Loan to be made by such Lender hereunder, as the
same may be reduced from time to time pursuant to the provisions of this
Agreement. The initial amount of each Lender's First Lien Term Commitment is set
forth on SCHEDULE 2.01 or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its First Lien Term Commitment, as applicable.
The initial aggregate amount of the Lenders' First Lien Term Commitments is
$300.0 million.
"FIRST LIEN TERM LENDER" means a Lender with a First Lien Term Loan
Commitment or an outstanding First Lien Term Loan, in its capacity as such.
"FIRST LIEN TERM LOAN MATURITY DATE" means the sixth anniversary of
the Effective Date.
"FIRST LIEN TERM LOANS" means the Loans made pursuant to clause (i) of
Section 2.01(a).
"FISCAL QUARTER" means any quarter of a Fiscal Year.
"FISCAL YEAR" means any period of twelve consecutive calendar months
which form the basis for the Borrower's financial statements in its Form 10-K;
references to a Fiscal Year with a number corresponding to any calendar year
(E.G., the "2003 Fiscal Year") refer to the Fiscal Year as disclosed in the
Borrower's SEC filings.
"FOREIGN CURRENCY EQUIVALENT" means, with respect to any amount in
U.S. Dollars, the amount of any other currency that could be purchased with such
amount of U.S. Dollars using the foreign exchange rate(s) specified in the
definition of the term "U.S. Dollar Equivalent", as determined by the
Administrative Agent.
"FOREIGN PLAN" means any employee benefit plan, program, policy,
arrangement or agreement maintained or contributed to outside the United States
by any Loan Party or any Subsidiary primarily for the benefit of employees of
any Loan Party or any Subsidiary employed outside the United States.
"FOREIGN SUBSIDIARY" means any Subsidiary that is incorporated or
organized under the laws of any jurisdiction other than the United States of
America, any State thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the United
States applied on a consistent basis.
"GOF" means MatlinPatterson Global Opportunities Partners LP.
-14-
"GOF HOLDERS" means GOF and each of its Affiliates that hold the
equity of the Borrower on the date hereof, so long as such entities continue to
be managed or controlled by GOF or are Affiliates or Subsidiaries of GOF.
"GOVERNMENTAL AUTHORITY" means any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body,
including any central bank.
"GREENSHOE OPTION" has the meaning assigned to such term in Section
9.08(a).
"GUARANTEE" of or by any Person (the "GUARANTOR") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof
(including pursuant to a "synthetic lease"), (c) to maintain working capital,
equity capital or any other financial statement condition or liquidity of the
primary obligor so as to enable the primary obligor to pay such Indebtedness or
other obligation or (d) as an account party in respect of any letter of credit
or letter of guaranty issued to support such Indebtedness or obligation;
PROVIDED that the term "Guarantee" shall not include endorsements for collection
or deposit in the ordinary course of business. The amount of the obligation
under any Guarantee shall be deemed to be the lower of (a) an amount equal to
the stated or determinable amount of the primary obligation in respect of which
such Guarantee is made (including principal, interest and fees) and (b) the
maximum amount for which such guarantor may be liable pursuant to the terms of
the instrument embodying such Guarantee, unless such primary obligation and the
maximum amount for which such guarantor may be liable are not stated or
determinable, in which case the amount of the obligation under such Guarantee
shall be such guarantor's maximum reasonably anticipated liability in respect
thereof as determined by the guarantor in good faith; irrespective, in any such
case, of any amount thereof that would, in accordance with GAAP, be required to
be reflected on a balance sheet of such Person.
"GUARANTEE AGREEMENT" means the Guarantee Agreement, substantially in
the form of EXHIBIT I, made by the Subsidiary Loan Parties.
"HAZARDOUS MATERIALS" means all pollutants, contaminants, wastes,
substances, chemicals, materials and constituents, including without limitation,
crude oil, petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls ("PCBS") or PCB-containing materials or
equipment of any nature which can give rise to liability under, or are subject
to regulation pursuant to, any Environmental Law.
"HEDGING AGREEMENT" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement
and all other similar agreements or arrangements designed to alter the risks of
any Person arising from fluctuations in interest rate, currency values or
commodity prices.
-15-
"IMPERMISSIBLE QUALIFICATION" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of the Borrower, any qualification or exception to such opinion or
certification:
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of matters
relevant to such financial statement; or
(c) which relates to the treatment or classification of any item
in such financial statement and which, as a condition to its removal, would
require an adjustment to such item the effect of which would be to cause
the Borrower to be in default of any of its obligations under any of
Sections 6.12 or 6.13.
"INCREASED COST LENDER" has the meaning assigned to such term in
Section 2.20.
"INDEBTEDNESS" of any Person means the sum of all indebtedness of such
Person on a consolidated basis (without duplication) with respect to (i)
borrowed money or represented by bonds, debentures, notes and the like; (ii) the
aggregate amount of Capital Lease Obligations; (iii) all indebtedness secured by
any Lien on any Property of such Person; (iv) all indebtedness representing the
deferred purchase price of Property or services, excluding trade payables in the
ordinary course of business; (v) all obligations for the reimbursement of any
obligor in respect of letters of credit, letters of guaranty, bankers'
acceptances and similar credit transactions; (vi) all obligations under
conditional sale or other title retention agreements relating to property
purchased by such Person; (vii) synthetic lease obligations of such Person;
(viii) all obligations under Hedging Agreements to the extent required to be
reflected on a balance sheet of such Person; (ix) all Attributable Indebtedness
of such Person; and (x) direct Guarantees and indemnities in respect of, and to
purchase or otherwise acquire, or otherwise to assure a creditor against loss in
respect of, or to assure an obligee against failure to make payment in respect
of, liabilities, obligations or indebtedness of the kind described in clauses
(i) through (ix).
"INDEBTEDNESS TO BE PAID" has the meaning assigned to such term in
Section 3.20(b).
"INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT" means the
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
EXHIBIT F.
"INFORMATION MEMORANDUM" means the Confidential Information Memorandum
dated as of April 2004 and posted electronically on Intralinks relating to the
Borrower and this Agreement.
"INSTALLMENT PAYMENT DATE" has the meaning assigned to such term in
Section 2.05(d).
"INTEREST EXPENSE COVERAGE RATIO" means, for any Test Period, the
ratio of (a) Consolidated EBITDA to (b) Cash Interest Expense, in each case for
such Test Period.
"INTEREST PAYMENT DATE" means, with respect to any Loan, the last day
of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Borrowing with an Interest Period of more than
three months' duration, (a) each day that would have been an Interest Payment
Date had successive Interest Periods of three months' duration been applicable
to
-16-
such Borrowing and, in addition, (b) the date of any refinancing of such
Borrowing with a Borrowing of a different Type.
"INTEREST PERIOD" means (a) as to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing (including any date on which such
Borrowing shall have been converted from a Borrowing of a different Type) or on
the last day of the immediately preceding Interest Period applicable to such
Borrowing, as the case may be, and ending on the numerically corresponding day
(or, if there is no numerically corresponding day, on the last day) in the
calendar month that is 1, 2, 3 or 6 months (or if available to all Lenders, 9 or
12 months) thereafter, as the Borrower may elect; or (b) as to any ABR Borrowing
(other than a Swingline Borrowing), the period commencing on the date of such
Borrowing (including any date on which such Borrowing shall have been converted
from a Borrowing of a different Type) or on the last day of the immediately
preceding Interest Period applicable to such Borrowing, as the case may be, and
ending on the earliest of (i) the next succeeding March 31, June 30, September
30 or December 31, (ii) the Revolving Credit Maturity Date and (iii) the date
such Borrowing is prepaid in accordance with Section 2.05 or converted in
accordance with Section 2.03 and (c) as to any Swingline Loan, a period
commencing on the date of such Loan and ending on the earliest of (i) the fifth
Business Day thereafter, (ii) the Revolving Credit Maturity Date and (iii) the
date such Loan is prepaid in accordance with Section 2.05; PROVIDED, HOWEVER,
that if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless, in
the case of a Eurodollar Borrowing only, such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period shall end on
the next preceding Business Day. Interest shall accrue from and including the
first day of an Interest Period to but excluding the last day of such Interest
Period.
"INVESTMENT" has the meaning assigned to such term in Section 6.04.
"ISSUING BANK" means Citibank NA, in its capacity as the issuer of
Letters of Credit hereunder, and its successors in such capacity as provided in
Section 2.06(i), or any other Revolving Lender approved by the Administrative
Agent and the Borrower. The Issuing Bank may, in its discretion, arrange for one
or more Letters of Credit to be issued by Affiliates of the Issuing Bank, in
which case the term "Issuing Bank" shall include any such Affiliate with respect
to Letters of Credit issued by such Affiliate.
"LANDLORD ACCESS AGREEMENT" means a landlord access agreement
substantially in the form of EXHIBIT O attached hereto
"LC DISBURSEMENT" means a payment made by the Issuing Bank pursuant to
a Letter of Credit.
"LC EXPOSURE" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Revolving Lender at any
time shall be its Commitment Percentage of the total LC Exposure at such time.
"LC FEES" has the meaning assigned to such term in Section 2.10(b).
"LEAD ARRANGER" has the meaning assigned to such term in the preamble
hereto.
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"LENDER AFFILIATE" means (a) with respect to any Lender, (i) an
Affiliate of such Lender or (ii) any entity (whether a corporation, partnership,
trust or otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary course
of its business and is administered or managed by a Lender or an Affiliate of
such Lender and (b) with respect to any Lender that is a fund which invests in
bank loans and similar extensions of credit, any other fund that invests in bank
loans and similar extensions of credit and is managed by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.
"LENDERS" has the meaning assigned to such term in the preamble
hereto.
"LETTER OF CREDIT" means any letter of credit issued pursuant to this
Agreement.
"LIBO RATE" means, with respect to any Eurodollar Borrowing for any
Interest Period the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for Dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate supplied to the
Administrative Agent at its request quoted by the Reference Banks in the London
interbank market as of the day two Business Days prior to the commencement of
such Interest Period as the rate for Dollar deposits with a maturity comparable
to such Interest Period.
"LIEN" means, with respect to any asset, (a) any mortgage, deed of
trust, deed to secure debt, lien, pledge, encumbrance, charge, assignment,
hypothecation or security interest in or on such asset or any filing of any
financing statement under the UCC as in effect in the applicable state or
jurisdiction or any other similar notice or lien under any similar notice or
recording statute of any Governmental Authority, in each of the foregoing cases
whether voluntary or imposed by law, (b) the interest of a vendor or a lessor
under any conditional sale agreement, capital lease or title retention agreement
relating to such asset, (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities, (d) in the
case of any investment property or deposit account, any contract or other
agreement under which any third party has the right to control such investment
property or deposit account and (e) any other agreement intended to create any
of the foregoing.
"LOAN DOCUMENTS" means this Agreement, the Collateral Sharing
Agreement, the Indemnity, Subrogation and Contribution Agreement, the Guarantee
Agreement, the Security Documents, each Note and, solely for purposes of Section
7.01(a), the Fee Letter.
"LOAN PARTIES" means the Borrower and the Subsidiary Loan Parties.
"LOANS" means the Revolving Loans, the Swingline Loans and the Term
Loans.
"MATERIAL ADVERSE EFFECT" means a materially adverse effect on (a) the
business, assets, operations, properties, financial condition or liabilities of
the Loan Parties and their consolidated Subsidiaries, taken as a whole, or (b)
the ability of any Loan Party to perform their obligations under the Loan
Documents, (c) the rights of or benefits available to the Lenders under any Loan
Document
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or (d) the value of the Collateral or the validity, enforceability, perfection
or priority of the Liens granted to the Collateral Agents (for their benefit and
for the benefit of the other Secured Parties) on the Collateral pursuant to the
Security Documents.
"MATERIAL INDEBTEDNESS" means Indebtedness (other than the Loans and
Letters of Credit) of any one or more of the Borrower and the Borrower's
Subsidiaries, individually or in an aggregate principal amount exceeding $10.0
million. For purposes of determining Material Indebtedness, the "principal
amount" of the obligations of the Borrower or any Subsidiary in respect of any
Hedging Agreement at any time shall be the maximum aggregate amount (giving
effect to any netting agreements) that the Borrower or such Subsidiary would be
required to pay if such Hedging Agreement were terminated at such time.
"MAXIMUM RATE" has the meaning assigned to such term in Section 9.09.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"MORTGAGE" means a mortgage, deed of trust, leasehold mortgage or deed
of trust or other security document granting a Lien on any Mortgaged Property,
which shall be substantially in the form of EXHIBIT N-1 in the case of the
mortgage, deed of trust, leasehold mortgage or deed of trust or such other
security document in favor of the First Lien Collateral Agent, and EXHIBIT N-2
in the case of the mortgage, deed of trust, leasehold mortgage or deed of trust
or such other security document in favor of the Second Lien Collateral Agent.
"MORTGAGED PROPERTY" means, initially, each parcel of real property
and the improvements thereto owned or leased by a Loan Party and identified on
SCHEDULE 4.01(w)(A), and includes each other parcel of real property and
improvements thereto with respect to which a Mortgage is granted pursuant to
Section 5.11 or 5.12.
"MULTIEMPLOYER PLAN" means a multiemployer plan within the meaning of
Section 4001(a)(3) of ERISA (i) to which any Loan Party or ERISA Affiliate is
then making or has an obligation to make contributions, (ii) to which any Loan
Party or ERISA Affiliate has within the preceding six plan years made
contributions, including any Person which ceased to be an ERISA Affiliate during
such six year period, or (iii) with respect to which Loan Party or any
Subsidiary could incur liability.
"NET PROCEEDS" means, with respect to any Equity Issuance, Debt
Incurrence, Asset Sale, Destruction or Taking, (a) the cash proceeds actually
received in respect of such event, including (i) any cash received in respect of
any non-cash proceeds, but only as and when received, (ii) in the case of a
Destruction, insurance proceeds only to the extent in excess of $2.5 million, in
the aggregate for all such events and (iii) in the case of a Taking,
condemnation awards and similar payments only to the extent in excess of $2.5
million, in the aggregate for all such events, net of (b) the sum of (i) all
reasonable fees and out-of-pocket expenses paid by the Borrower and its
Subsidiaries in connection with such event, (ii) the amount of all taxes paid
(or reasonably estimated to be payable) by the Borrower and its Subsidiaries,
and (iii) in the case of an Asset Sale, Destruction or Taking, the amount of all
payments required to be made by the Borrower and its Subsidiaries as a result of
such event to repay Indebtedness (other than Loans) secured by a Prior Lien (as
defined in the Security Agreement or applicable Mortgage) on such asset and the
amount of any reserves established by the Borrower and its Subsidiaries to fund
contingent liabilities reasonably estimated to be payable, in each case during
the year that such event occurred or the next succeeding two years, and that are
directly attributable to
-19-
such event (as determined reasonably and in good faith by the Borrower);
PROVIDED that any amount by which such reserves are reduced for reasons other
than payment of any such contingent liabilities shall be considered "Net
Proceeds" upon such reduction.
"NON-CONSENTING LENDER" has the meaning assigned thereto in Section
2.20.
"NON-RECOURSE DEBT" means Indebtedness of any Person (1) as to which
no Loan Party (a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Indebtedness), (b) is
directly or indirectly liable as a guarantor or otherwise or (c) constitutes the
lender and (2) as to which the lenders have been notified in writing that they
will not have any recourse to the Equity Interests or assets of any of the Loan
Parties.
"NON-U.S. JURISDICTION" means each jurisdiction of organization of a
Subsidiary of the Borrower other than the United States (or any State thereof)
or the District of Columbia.
"NON-U.S. PLEDGE AGREEMENTS" means one or more pledge agreements in
form and substance reasonably satisfactory to the Collateral Agent covering 65%
of the Equity Interests owned by the Borrower or a Subsidiary Loan Party
directly in a Non-U.S. Subsidiary.
"NON-U.S. SUBSIDIARY" means any Subsidiary of the Borrower that is or
becomes organized under the laws of a Non-U.S. Jurisdiction.
"NOTE" means a note substantially in the form of EXHIBIT ▇-▇, ▇-▇, G-3
or G-4.
"OBLIGATIONS" means, collectively, all First Lien Obligations and all
Second Lien Obligations.
"ORGANIC DOCUMENT" means (i) relative to each Person that is a
corporation, its charter, its by-laws and all shareholder agreements, voting
trusts and similar arrangements applicable to any of its authorized shares of
capital stock, (ii) relative to each Person that is a partnership, its
partnership agreement and any other similar arrangements applicable to any
partnership or other equity interests in the Person and (iii) relative to any
Person that is any other type of legal entity, such documents as shall be
comparable to the foregoing.
"OVERDRAFT OBLIGATIONS" means the obligations described in clause (c)
of the definition of "First Lien Obligations."
"PARTICIPANT" has the meaning assigned to such term in Section
9.04(f).
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
"PENSION PLAN" means a "pension plan," as such term is defined in
Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
Multiemployer Plan) and to which any Loan Party or any ERISA Affiliate may have
liability, including any liability by reason of having been a substantial
employer within the meaning of Section 4063 of ERISA at any time during the
preceding five years, or by reason of being deemed to be a contributing sponsor
under Section 4069 of ERISA.
-20-
"PERFECTION CERTIFICATE" means a certificate in the form of ANNEX 2 to
the Security Agreement or any other form approved by the Administrative Agent.
"PERMITTED ACQUISITION" means any acquisition, whether by purchase,
merger, consolidation or otherwise, by the Borrower or any Subsidiary of all or
substantially all the assets of, or all the Equity Interests in, a Person or a
division, line of business or other business unit of a Person so long as:
(a) such acquisition shall not have been preceded by a tender
offer that has not been approved or otherwise recommended by the board of
directors of such Person;
(b) such assets are to be used in, or such Person so acquired is
engaged in, as the case may be, a business of the type conducted by the
Borrower and its Subsidiaries on the Effective Date or in a business
reasonably related thereto;
(c) immediately after giving effect thereto, (i) no Default has
occurred and is continuing or would result therefrom, (ii) all transactions
related thereto are consummated in all material respects in accordance with
applicable laws, (iii) in the case of an acquisition of Equity Interests,
the Person acquired shall become, immediately after giving effect thereto,
a Subsidiary or be merged into a Subsidiary and all actions required to be
taken under Sections 5.11, 5.12 and 5.16 shall have been taken, (iv) the
Borrower and its Subsidiaries are in compliance, on a Pro Forma Basis after
giving effect to such acquisition, with the covenants contained in Sections
6.12 and 6.13 recomputed as at the date of the last ended Test Period, as
if such acquisition (and any related incurrence or repayment of
Indebtedness) had occurred on the first day of the relevant Test Period,
(v) any Indebtedness or any preferred stock that is incurred, acquired or
assumed in connection with such acquisition shall be in compliance with
Section 6.01 and (vi) after giving effect to any Revolving Credit
Borrowings made in connection therewith, the Total Revolving Credit
Commitment less the Revolving Credit Exposure of all Revolving Lenders
shall not be less than $20.0 million; and
(d) the Borrower has delivered to the Administrative Agent an
officers' certificate to the effect set forth in clauses (a), (b) and
(c)(i) through (vi) above, together with all relevant financial information
for the Person or assets to be acquired.
"PERMITTED FACTORING TRANSACTION" means the factoring of receivables
by the Borrower or any of its Subsidiaries structured as a true sale to a Person
that is not an Affiliate of the Borrower or any of its Subsidiaries pursuant to
a structured factoring program on market terms for companies having a credit
profile similar to the Borrower and its Subsidiaries at the time of entering
into the factoring program; PROVIDED that the outstanding proceeds of all
factoring programs shall not exceed (i) $15.0 million in the case of the
Borrower and its Domestic Subsidiaries or (ii) $25.0 million in the case of the
Borrower's Foreign Subsidiaries. For purposes of the foregoing limitations,
outstanding proceeds at any time shall be deemed to equal the then outstanding
capital amount or principal amount received by the Borrower or the relevant
Subsidiary in respect of sales of accounts receivable.
"PERMITTED INVESTMENTS" means:
(a) marketable direct obligations issued by, or unconditionally
guaranteed by, the United States Government or any member state of the
European Union or issued by any agency or instrumentality thereof and
backed by the full faith and credit of the United States
-21-
of America or such member state of the European Union, in each case
maturing within one year from the date of acquisition thereof;
(b) marketable direct obligations issued by any State of the
United States of America or any political subdivision of any such State or
any public instrumentality thereof maturing within one year from the date
of acquisition thereof and, at the time of acquisition, having one of the
two highest ratings obtainable from either S&P or Moody's;
(c) commercial paper maturing no more than one year from the date
of creation thereof and, at the time of acquisition, having a rating of at
least A-1 from S&P or at least P-1 from Moody's;
(d) time deposits, demand deposits, certificates of deposit,
Eurodollar time deposits or bankers' acceptances maturing within one year
from the date of acquisition thereof or overnight bank deposits, in each
case, issued by any bank organized under the laws of any member state of
the European Union, the United States of America or any State thereof or
the District of Columbia, any U.S. branch of a foreign bank or any other
bank in any country where operations are conducted by the Borrower and its
Subsidiaries, in any case, having at the date of acquisition thereof
combined capital and surplus of not less than $500.0 million;
(e) repurchase obligations with a term of not more than 90 days
for underlying securities of the types described in clause (a) above
entered into with any bank meeting the qualifications specified in clause
(d) above;
(f) investments in money market funds which invest substantially
all their assets in securities of the types described in clauses (a)
through (e) above; and
(g) Hedging Agreements entered into for non-speculative purposes.
"PERMITTED LIEN" has the meaning assigned to such term in Section
6.02.
"PERMITTED REFINANCING" means, with respect to any Indebtedness, any
refinancing thereof; PROVIDED, HOWEVER, that (i) no Default shall have occurred
and be continuing or would arise therefrom, (ii) any such refinancing
Indebtedness shall (a) not have a stated maturity or Weighted Average Life to
Maturity that is shorter than the Indebtedness being refinanced, (b) be at least
as subordinate to the Obligations as the Indebtedness being refinanced (and
unsecured if the refinanced Indebtedness is unsecured), and (c) be in principal
amount that does not exceed the principal amount so refinanced, plus all accrued
and unpaid interest thereon, plus the stated amount of any premium and other
payments required to be paid in connection with such refinancing pursuant to the
terms of the Indebtedness being refinanced, plus in either case, the amount of
reasonable expenses of the Borrower or any of its Subsidiaries incurred in
connection with such refinancing, and (iii) the sole obligors and/or guarantors
on such refinancing Indebtedness shall be the obligors and/or guarantors on such
Indebtedness being refinanced.
"PERSON" means any natural person, corporation, trust, joint venture,
association, company, partnership, limited liability company or government, or
any agency or political subdivision thereof.
"PLAN" means any Pension Plan or Welfare Plan.
-22-
"PLATFORM" has the meaning assigned to such term in Section 9.17(b).
"PLEDGE AGREEMENT" means the Pledge Agreement, substantially in the
form of EXHIBIT J, among the Loan Parties and the Collateral Agents for the
benefit of the Secured Parties.
"PLEDGED SECURITIES" has the meaning provided in the Pledge Agreement.
"PREFERRED STOCK" means, with respect to any Person, any and all
preferred or preference Equity Interests (however designated) of such Person
whether or not outstanding or issued on the Effective Date.
"PREPAYMENT DATE" has the meaning assigned to such term in Section
2.05(f).
"PRIORITY CLASS", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are First
Lien Loans or Second Lien Term Loans and, when used in reference to any
Commitment, refers to whether such Commitment is a First Lien Commitment or
Second Lien Commitment.
"PRO FORMA BASIS" means on a pro forma basis in accordance with GAAP
and Regulation S-X under the Exchange Act and otherwise reasonably satisfactory
to the Administrative Agent.
"PROJECTED FINANCIAL STATEMENTS" has the meaning assigned to such term
in Section 3.15(c).
"PRO RATA PERCENTAGE" of any Revolving Lender at any time means the
percentage of the aggregate Available Revolving Credit Commitment represented by
such Lender's Available Revolving Credit Commitment.
"PROPERTY" means any right, title or interest in or to property or
assets of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible and including any ownership interests of any Person.
"REAL PROPERTY" means all right, title and interest of any Loan Party
in and to a parcel of real property owned, leased or operated (including,
without limitation, any leasehold estate) by any Loan Party together with, in
each case, all improvements and appurtenant fixtures, equipment, personal
property, easements and other property and rights incidental to the ownership,
lease or operation thereof.
"REFERENCE BANKS" means:
(a) in connection with the initial syndication of the Loans and
Commitments, in respect of LIBO Rate, the principal London office of
Citibank, N.A.; and
(b) at all other times, in respect of LIBO Rate, the principal
London office of Citibank, N.A. and such two other banks as may be
appointed by the Administrative Agent in consultation with the Borrower.
"REGISTER" has the meaning assigned to such term in Section 9.04(d).
-23-
"REGULATION U" means Regulation U of the Board of Governors as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"REGULATION X" means Regulation X of the Board of Governors as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"RELATED HEDGING OBLIGATIONS" means the obligations described in
clause (b) of the definition of "First Lien Obligations."
"RELATED PARTIES" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates and trustees of such
Person which are Massachusetts business trusts.
"RELEASE" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the Environment.
"REMEDIAL ACTION" means (a) "remedial action" as such term is defined
in CERCLA, 42 USC Section 9601(24), and (b) all other actions required by any
Governmental Authority or voluntarily undertaken to: (i) clean up, remove,
treat, ▇▇▇▇▇ or otherwise take corrective action to address any Hazardous
Material in the Environment; (ii) prevent the Release or threat of Release, or
minimize the further Release of any Hazardous Material so it does not migrate or
endanger or threaten to endanger public health, welfare or the Environment; or
(iii) perform studies and investigations in connection with, or as a
precondition to, (i) or (ii) above.
"REORGANIZATION PLAN" means the Borrower's and certain of its
subsidiaries' Joint Amended Modified Plan of Reorganization filed on November
25, 2002.
"REQUIRED FIRST LIEN LENDERS" means, at any time, Lenders having more
than fifty percent (50%) of the sum of (a) the aggregate amount of the Revolving
Credit Commitments or, after the Revolving Credit Maturity Date, the Revolving
Credit Exposure and (b) the aggregate outstanding amount of all First Lien Term
Loans at such time.
"REQUIRED SECOND LIEN LENDERS" means, at any time, Lenders having more
than fifty percent (50%) of the aggregate outstanding amount of all Second Lien
Term Loans.
"REQUIREMENT OF LAW" means, as to any Person, any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or assets or to which such Person or any of its property or assets is
subject.
"REQUISITE CLASS LENDERS" means, at any time, (i) for the Class of
Lenders having First Lien Term Loans, Lenders holding more than fifty percent
(50%) of the aggregate First Lien Term Loans of all Lenders; (ii) for the Class
of Lenders having Second Lien Term Loans, Lenders holding more than fifty
percent (50%) of the aggregate Second Lien Term Loan of all Lenders; and (iii)
for the Class of Lenders having Revolving Credit Commitments, Lenders holding
more than fifty percent (50%) of the aggregate outstanding amount of the
Revolving Credit Commitments or, after the Revolving Credit Maturity Date, the
Revolving Credit Exposure of all Lenders.
-24-
"REQUISITE LENDERS" means, at any time, Lenders having more than fifty
percent (50%) of the sum of (a) the aggregate amount of the Revolving Credit
Commitments or, after the Revolving Credit Maturity Date, the Revolving Credit
Exposure and (b) the aggregate outstanding amount of all Term Loans at such
time.
"REQUISITE REVOLVING LENDERS" means, at any time, Lenders having more
than fifty percent (50%) of the aggregate outstanding amount of the Revolving
Credit Commitments or, after the Revolving Credit Maturity Date, the Revolving
Credit Exposure.
"RESTRICTED PAYMENT" means any direct or indirect dividend or other
distribution (whether in cash, securities or other property) with respect to any
Equity Interests or Equity Rights in the Borrower or any Subsidiary, or any
payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any Equity Interests or Equity
Rights in the Borrower or any Subsidiary.
"REVOLVING CREDIT BORROWING" means a Borrowing comprised of Revolving
Loans.
"REVOLVING CREDIT BORROWING REQUEST" means a Borrowing Request in
connection with a Revolving Credit Borrowing.
"REVOLVING CREDIT COMMITMENT" means, with respect to each Revolving
Lender, the commitment of such Revolving Lender to make Revolving Loans and to
acquire participations in Letters of Credit and Swingline Loans hereunder,
expressed in each case as an amount representing the maximum principal amount of
such Revolving Lender's Revolving Credit Exposure hereunder, as the same may be
reduced from time to time pursuant to the provisions of this Agreement. The
initial amount of each Revolving Lender's Revolving Credit Commitment is set
forth on SCHEDULE 2.01 (in the case of Revolving Credit Commitments in effect on
the Effective Date), or in the Assignment and Acceptance pursuant to which such
Lender shall have assumed its Revolving Credit Commitment, as applicable. The
aggregate amount of the Revolving Lenders' Revolving Credit Commitments as of
the Effective Date is $50.0 million.
"REVOLVING CREDIT COMMITMENT PERIOD" means the period from and
including the Effective Date to but not including the Revolving Credit Maturity
Date or any earlier date on which the Revolving Credit Commitments to make
Revolving Loans pursuant to Section 2.01 shall terminate as provided herein.
"REVOLVING CREDIT EXPOSURE" means with respect to any Revolving Lender
at any time, the sum of (a) the aggregate principal amount at such time of all
outstanding Revolving Loans of such Revolving Lender, plus (b) such Revolving
Lender's LC Exposure at such time, plus (c) such Revolving Lender's Commitment
Percentage of the aggregate principal amount at such time of all outstanding
Swingline Loans.
"REVOLVING CREDIT MATURITY DATE" means the fifth anniversary of the
Effective Date.
"REVOLVING LENDER" means a Lender with a commitment to make Revolving
Loans or with any Revolving Credit Exposure, in its capacity as such.
-25-
"REVOLVING LOANS" means the revolving loans made pursuant to clause
(iii) of Section 2.01(a).
"S&P" means Standard & Poor's Corporation.
"SEC" means the Securities and Exchange Commission.
"SALE AND LEASEBACK TRANSACTION" has the meaning assigned thereto in
Section 6.06.
"SECOND LIEN COLLATERAL AGENT" has the meaning assigned to such term
in the preamble hereto.
"SECOND LIEN OBLIGATIONS" means the unpaid principal of and interest
on (including interest accruing after the maturity of the Second Lien Term Loans
made to the Borrower and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans made to and all
other obligations and liabilities of the Loan Parties to the Second Lien Secured
Parties, whether direct or indirect, absolute or contingent, due or to become
due, or now existing or hereafter incurred, which may arise under, out of, or in
connection with, this Agreement or any other document made, delivered or given
in connection herewith, whether on account of principal, interest, fees,
indemnities, costs or expenses (including, without limitation, all reasonable
fees, charges and disbursements of counsel), or otherwise.
"SECOND LIEN SECURED PARTIES" means each Lender that holds Second Lien
Term Loans or has Second Lien Term Commitments (in its capacity as such).
"SECOND LIEN TERM BORROWING" means a Borrowing comprised of Second
Lien Term Loans on the Effective Date.
"SECOND LIEN TERM COMMITMENT" means, with respect to each Lender, the
commitment, if any, of such Lender to make a Second Lien Term Loan hereunder on
the Effective Date, expressed as an amount representing the maximum principal
amount of the Second Lien Term Loan to be made by such Lender hereunder, as the
same may be reduced from time to time pursuant to the provisions of this
Agreement. The initial amount of each Lender's Second Lien Term Commitment is
set forth on SCHEDULE 2.01 or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its First Lien Term Commitment, as applicable.
The initial aggregate amount of the Lenders' Second Lien Term Commitments is
$125.0 million.
"SECOND LIEN TERM LOAN MATURITY DATE" means the seventh anniversary of
the Effective Date.
"SECOND LIEN TERM LOANS" means the Loans made pursuant to clause (ii)
of Section 2.01(a).
"SECURED PARTIES" means the First Lien Secured Parties and the Second
Lien Secured Parties.
"SECURITY AGREEMENT" means the Security Agreement, substantially in
the form of EXHIBIT K, among the Loan Parties and the Collateral Agents for the
benefit of the Secured Parties.
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"SECURITY DOCUMENTS" means the Security Agreement, the Pledge
Agreement, the Non-U.S. Pledge Agreements, the Mortgages, the Perfection
Certificate, Cash Management Agreements (as defined in the Security Agreement)
and each other security agreement or other instrument or document executed and
delivered pursuant to Section 5.11, 5.12 or 5.16 to secure any of the
Obligations.
"STATUTORY RESERVE RATE" means a fraction (expressed as a decimal) the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate (expressed as a decimal) of the maximum reserve
percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by any Governmental Authority of
the United States or of the jurisdiction of such currency or any jurisdiction to
which banks in such jurisdiction are subject for any category of deposits or
liabilities customarily used to fund loans. Such reserve percentages shall
include those imposed pursuant to such Regulation D. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"SUBORDINATED DEBT" means the Convertible Notes and any Permitted
Refinancing thereof.
"SUBORDINATED DEBT DOCUMENTS" means the Convertible Notes Documents
and each document governing or pursuant to which is issued any other
Subordinated Debt, as the same may be in effect from time to time in accordance
with the terms hereof and thereof.
"SUBSIDIARY" means, with respect to any Person, (i) any corporation of
which more than 50% of the outstanding capital stock having ordinary voting
power to elect a majority of the board of directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such Person, by such
Person and one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person; (ii) any partnership of which more than 50%
of the outstanding partnership interests having the power to act as a general
partner of such partnership (irrespective of whether at the time any partnership
interests other than general partnership interests of such partnership shall or
might have voting power upon the occurrence of any contingency) are at the time
directly or indirectly owned by such Person, by such Person and one or more
other Subsidiaries of such Person, or by one or more other Subsidiaries of such
Person; or (iii) any other legal entity the accounts of which would or should be
consolidated with those of such Person on a consolidated balance sheet of such
Person prepared in accordance with GAAP. Unless otherwise indicated, when used
in this Agreement, the term "Subsidiary" shall refer to a Subsidiary of the
Borrower.
"SUBSIDIARY LOAN PARTY" means each of the Borrower's Domestic
Subsidiaries that guarantees the Obligations pursuant to the Guarantee
Agreement.
"SURVEY" means a survey of any Mortgaged Property (and all
improvements thereon): (i) prepared by a surveyor or engineer licensed to
perform surveys in the state where such Mortgaged Property is located, (ii)
dated (or redated) not earlier than six months prior to the date of delivery
thereof unless there shall have occurred within six months prior to such date of
delivery any exterior construction on the site of such Mortgaged Property, in
which event such survey shall be dated (or redated) after the completion of such
construction or if such construction shall not have been completed as of such
date of delivery, not earlier than 20 days prior to such date of delivery, (iii)
certified
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by the surveyor (in a manner reasonably acceptable to the Collateral Agent) to
the Collateral Agent and the Title Company, (iv) complying in all respects with
the minimum detail requirements of the American Land Title Association as such
requirements are in effect on the date of preparation of such survey and (v)
sufficient for the Title Company to remove all standard survey exceptions from
the title insurance policy (or marked title insurance commitment having the
effect of a policy) and issue a survey endorsement.
"SWINGLINE COMMITMENT" means the commitment of the Swingline Lender to
make Loans pursuant to Section 2.04.
"SWINGLINE EXPOSURE" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Revolving Lender at any time shall be its Commitment Percentage of the
total Swingline Exposure at such time.
"SWINGLINE LENDER" means Citicorp North America, Inc., in its capacity
as lender of Swingline Loans.
"SWINGLINE LOAN" has the meaning assigned to such term in Section
2.04(a).
"SWINGLINE SUBLIMIT" has the meaning assigned to such term as Section
2.04(a).
"SYNDICATION AGENT" has the meaning assigned to such term in the
preamble hereto.
"TAKING" means any taking of any Property of the Borrower or any
Subsidiary or any portion thereof, in or by condemnation or other eminent domain
proceedings pursuant to any law, general or special, or by reason of the
temporary requisition or use of any Property of the Borrower or any Subsidiary
or any portion thereof, by any Governmental Authority.
"TAXES" has the meaning assigned to such term in Section 2.16.
"TERM BORROWING" means a First Lien Term Borrowing or a Second Lien
Term Borrowing.
"TERM BORROWING REQUEST" means a Borrowing Request in connection with
the Term Loans on the Effective Date.
"TERM LENDER" means a Lender with a Term Loan Commitment or an
outstanding Term Loan, in its capacity as such.
"TERM LOAN" means a First Lien Term Loan or Second Lien Term Loan.
"TERM LOAN COMMITMENT" means a First Lien Term Loan Commitment or a
Second Lien Term Loan Commitment.
"TERMINATED LENDER" has the meaning assigned to such term in Section
2.20.
"TEST PERIOD" means (i) for the covenants contained in Sections 6.12
and 6.13, the four consecutive complete Fiscal Quarters of the Borrower then
last ended as of the date closest to each date listed under the heading "Date"
therein and (ii) for all other provisions in this Agreement,
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the four consecutive complete Fiscal Quarters of the Borrower ended as of the
time indicated. Compliance with such covenants shall be tested, as of the end of
each Test Period, on the date on which the financial statements pursuant to
Section 5.01(a) or (b) have been, or should have been, delivered for the
applicable fiscal period.
"TITLE COMPANY" means Chicago Title Insurance Company or such other
title insurance or abstract company as shall be reasonably approved by the
Administrative Agent.
"TOTAL LEVERAGE RATIO" means, at any date, the ratio of (a)
Consolidated Indebtedness as of such date to (b) Consolidated EBITDA for the
Test Period most recently ended.
"TOTAL REVOLVING CREDIT COMMITMENT" means, at any time, the aggregate
amount of the Revolving Credit Commitments, as in effect at such time.
"TRANSACTIONS" means, collectively, the execution and delivery by each
Loan Party of each of the Loan Documents to which it is a party and the
Borrowing of the Term Loans and Revolving Loans hereunder in each case on the
Effective Date, the payment of Indebtedness to be repaid, the Exchange, and the
payment of fees and expenses in connection with any of the foregoing.
"TRIGGER DATE" means the date on which a Compliance Certificate for
the first quarter ending at least three months after the Effective Date shall
have been received by the Administrative Agent pursuant to Section 5.01(a) or
(b).
"TYPE," when used in respect of any Loan or Borrowing, refers to the
Rate by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof, "RATE" shall include the Adjusted
LIBO Rate and the Alternate Base Rate.
"UCC" means the Uniform Commercial Code as in effect in the applicable
state or jurisdiction.
"UNREFUNDED SWINGLINE LOANS" has the meaning assigned to such term in
Section 2.04(c).
"U.S. DOLLAR EQUIVALENT" means, on any day, with respect to any loan
denominated in Canadian Dollars, the amount of U.S. Dollars that would be
required to purchase the Canadian Dollar amount of such loan on such day,
assuming a rate of exchange equal to the
New York foreign exchange selling rate
quoted for such Canadian Dollars in the Wall Street Journal for such day (or,
for the most recent day on which the Wall Street Journal shall have been
published), PROVIDED that if for any reason the Wall Street Journal shall cease
to be published for three or more consecutive Business Days, "U.S. Dollar
Equivalent" shall mean the amount of U.S. Dollars that would be required to
purchase the Canadian Dollar amount of such loan on such day, based upon the
spot selling rate at which the Administrative Agent offers to sell Canadian
Dollars for U.S. Dollars in the London foreign exchange market at approximately
11:00 a.m. London time for delivery two Business Days later.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the
original aggregate principal amount of such Indebtedness into (b) the sum of the
total of the products obtained by multiplying (i) the amount of each scheduled
installment, sinking fund, serial maturity or other required payment of
principal including
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payment at final maturity, in respect thereof, by (ii) the number of years
(calculated to the nearest one-twelfth) which will elapse between such date and
the making of such payment.
"WELFARE PLAN" means a "welfare plan," as such term is defined in
Section 3(1) of ERISA, that is maintained or contributed to by a Loan Party or
any Subsidiary or with respect to which a Loan Party or any Subsidiary could
incur liability.
"WHOLLY OWNED SUBSIDIARY" means, with respect to any Person, any
corporation, partnership or other entity of which all of the equity securities
or other ownership interests (other than, in the case of a corporation,
directors' qualifying shares) are directly or indirectly owned or controlled by
such Person or one or more Wholly Owned Subsidiaries of such Person or by such
Person and one or more Wholly Owned Subsidiaries of such Person.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part 1 of Subtitle E of Title IV of ERISA.
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For purposes of
this Agreement, Loans may be classified and referred to by Class (E.G., a
"REVOLVING LOAN"), by Type (e.g., a "EURODOLLAR LOAN"), by Priority Class (E.G.,
a "FIRST LIEN LOAN") or by Class and Type (E.G., a "EURODOLLAR REVOLVING Loan").
Borrowings also may be classified and referred to by Class (E.G., a "REVOLVING
CREDIT BORROWING"), by Type (E.G., a "EURODOLLAR BORROWING") or by Class and
Type (E.G., a "EURODOLLAR REVOLVING CREDIT BORROWING").
SECTION 1.03. TERMS GENERALLY. (a) The definitions in Section 1.01
shall apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (i) any reference in this Agreement to any Loan
Document means such document as amended, restated, supplemented or otherwise
modified from time to time and (ii) all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to
time; PROVIDED, HOWEVER, that for purposes of determining compliance with the
covenants contained in Article VI, all accounting terms herein shall be
interpreted and all accounting determinations hereunder shall be made in
accordance with GAAP as in effect on the Effective Date and applied on a basis
consistent with the application used in the financial statements referred to in
Section 3.05.
(b) If any payment under this Agreement or any other Loan Document
shall be due on any day that is not a Business Day, the date for payment shall
be extended to the next succeeding Business Day, and in the case of any payment
accruing interest, interest thereon shall be paid for the period of such
extension.
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ARTICLE II
THE CREDITS
SECTION 2.01. CREDIT COMMITMENTS. (a) Subject to the terms and
conditions hereof, (i) each First Lien Term Lender severally agrees to make a
First Lien Term Loan in Dollars to the Borrower on the Effective Date in a
principal amount not exceeding its First Lien Term Loan Commitment, (ii) each
Second Lien Term Lender severally agrees to make a Second Lien Term Loan in
Dollars to the Borrower on the Effective Date in a principal amount not
exceeding its Second Lien Term Loan Commitment and (iii) each Revolving Lender
severally agrees to make Revolving Loans in Dollars to the Borrower from time to
time during the Revolving Credit Commitment Period; PROVIDED that no more than
$15.0 million of Revolving Loans may be borrowed on the Effective Date. Amounts
repaid or prepaid in respect of the Term Loans may not be reborrowed. During the
Revolving Credit Commitment Period the Borrower may use the Revolving Credit
Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
Notwithstanding anything to the contrary contained in this Agreement, in no
event may Revolving Loans be borrowed under this Article II if, after giving
effect thereto (and to any concurrent repayment or prepayment of Loans), (i) the
Aggregate Revolving Credit Exposure would exceed the Total Revolving Credit
Commitment then in effect or (ii) the Revolving Credit Exposure of any Revolving
Lender would exceed such Revolving Lender's Revolving Credit Commitment.
(b) The Revolving Loans and the Term Loans may from time to time
be (i) Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as
determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.02 and 2.03.
(c) Each Loan (other than a Swingline Loan) shall be made as part
of a Borrowing consisting of Loans of the same Class, Priority Class and Type
made by the Lenders ratably in accordance with their respective Commitments of
the applicable Class and Priority Class. The failure of any Lender to make any
Loan required to be made by it shall not relieve any other Lender of its
obligations hereunder; PROVIDED that the Commitments of the Lenders are several
and no Lender shall be responsible for any other Lender's failure to make Loans
as required.
SECTION 2.02. PROCEDURE FOR BORROWING. (a) The Borrower may borrow
under the Revolving Credit Commitments (subject to the limitations in Section
2.01(a)) or the Term Commitments by giving the Administrative Agent notice
substantially in the form of EXHIBIT B (a "BORROWING REQUEST"), which notice
must be received by the Administrative Agent prior to (a) 12:00 noon,
New York
City time, three Business Days prior to the requested Borrowing Date, in the
case of a Eurodollar Borrowing, or (b) 12:00 noon,
New York City time, on the
Business Day prior to the requested Borrowing Date, in the case of an ABR
Borrowing. The Borrowing Request for each Borrowing shall specify (i) whether
the requested Borrowing is to be a Revolving Credit Borrowing, a First Lien Term
Borrowing or a Second Lien Term Borrowing, (ii) the amount to be borrowed, (iii)
the requested Borrowing Date (which must be the Effective Date, in the case of a
Term Borrowing), (iv) whether the Borrowing is to be of Eurodollar Loans or ABR
Loans, (v) if the Borrowing is to be of Eurodollar Loans, the length of the
initial Interest Period therefor, and (vi) the location and number of the
Borrower's account to which funds are to be disbursed, which shall comply with
the requirements of this Agreement. If no election as to the Type of Borrowing
is specified, then the requested Borrowing shall be an ABR Borrowing. If no
Interest Period is specified with respect to any requested
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Eurodollar Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month's duration.
(b) Each Borrowing shall be in a minimum aggregate principal
amount of (i) in the case of a Term Borrowing, $1.0 million or an integral
multiple of $500,000 in excess thereof or (ii) in the case of a Revolving Credit
Borrowing, $1.0 million or an integral multiple of $500,000 in excess thereof
or, if less, the aggregate amount of the then Available Revolving Credit
Commitments.
(c) Upon receipt of the Term Borrowing Request, the Administrative
Agent shall promptly notify each Term Lender of the aggregate amount of the Term
Borrowing and of the amount of such Term Lender's PRO RATA portion thereof,
which shall be based on their respective Term Commitments. Each Term Lender will
make the amount of its PRO RATA portion of the Term Borrowing available to the
Administrative Agent for the account of the Borrower at the
New York office of
the Administrative Agent specified in Section 9.01 prior to 10:00 a.m., New York
City time, on the Effective Date in funds immediately available to the
Administrative Agent. Amounts so received by the Administrative Agent will
promptly be made available to the Borrower by the Administrative Agent crediting
the account of the Borrower on the books of such office with the aggregate of
the amounts made available to the Administrative Agent by the Revolving Lenders
and in like funds as received by the Administrative Agent.
(d) Upon receipt of a Revolving Credit Borrowing Request, the
Administrative Agent shall promptly notify each Revolving Lender of the
aggregate amount of such Revolving Credit Borrowing and of the amount of such
Revolving Lender's PRO RATA portion thereof, which shall be based on the
respective Available Revolving Credit Commitments of all the Revolving Lenders.
Each Revolving Lender will make the amount of its PRO RATA portion of each such
Revolving Credit Borrowing available to the Administrative Agent for the account
of the Borrower at the New York office of the Administrative Agent specified in
Section 9.01 prior to 12:00 p.m., New York City time, on the Borrowing Date
requested by the Borrower in funds immediately available to the Administrative
Agent. Amounts so received by the Administrative Agent will promptly be made
available to the Borrower by the Administrative Agent crediting the account of
the Borrower on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Revolving Lenders and in like funds
as received by the Administrative Agent; PROVIDED that if on the Borrowing Date
of any Revolving Loans to be made to the Borrower, any Swingline Loans made to
the Borrower or LC Disbursements for the account of the Borrower shall be then
outstanding, the proceeds of such Revolving Loans shall first be applied to pay
in full such Swingline Loans or LC Disbursements, with any remaining proceeds to
be made available to the Borrower as provided above; and PROVIDED FURTHER that
ABR Revolving Loans made to finance the reimbursement of an LC Disbursement as
provided in Section 2.06(e) shall be remitted by the Administrative Agent to the
Issuing Bank.
SECTION 2.03. CONVERSION AND CONTINUATION OPTIONS FOR LOANS. (a) The
Borrower may elect from time to time to convert (i) Eurodollar Loans to ABR
Loans, by giving the Administrative Agent prior notice of such election not
later than 12:00 noon, New York City time, on the Business Day prior to a
requested conversion or (ii) ABR Loans to Eurodollar Loans by giving the
Administrative Agent prior notice of such election not later than 12:00 noon,
New York City time, three Business Days prior to a requested conversion;
PROVIDED that if any such conversion of Eurodollar Loans is made other than on
the last day of an Interest Period with respect thereto, the Borrower shall pay
any amounts due to the Lenders pursuant to Section 2.17 as a result of such
conversion. Any such notice of conversion to Eurodollar Loans shall specify the
length of the initial Interest Period or Interest Periods therefor. Upon receipt
of any such notice the Administrative Agent shall promptly
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notify each Lender thereof. All or any part of the outstanding Eurodollar Loans
or ABR Loans may be converted as provided herein; PROVIDED that (i) no Loan may
be converted into a Eurodollar Loan when any Event of Default has occurred and
is continuing, and (ii) no Loan may be converted into a Eurodollar Loan after
the date that is one month prior to the Revolving Credit Maturity Date, the
First Lien Term Loan Maturity Date or the Second Lien Term Loan Maturity Date,
as applicable.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving prior notice to the Administrative Agent, not later than 12:00
noon, New York City time, three Business Days prior to a requested continuation
setting forth the length of the next Interest Period to be applicable to such
Loans; PROVIDED that no Eurodollar Loan may be continued as such (i) when any
Event of Default has occurred and is continuing, and (ii) after the date that is
one month prior to the Revolving Credit Maturity Date, the First Lien Term Loan
Maturity Date or the Second Lien Term Loan Maturity Date, as applicable; and
PROVIDED, FURTHER, that if the Borrower shall fail to give any required notice
as described above in this Section 2.03 or if such continuation is not permitted
pursuant to the preceding proviso, then such Loans shall be automatically
converted to ABR Loans on the last day of such then expiring Interest Period (in
which case the Administrative Agent shall notify the Borrower of such
conversion).
(c) In connection with any Eurodollar Loans, there shall be no
more than ten (10) Interest Periods outstanding at any time.
(d) This Section shall not apply to Swingline Loans.
SECTION 2.04. SWINGLINE LOANS. (a) Subject to the terms and
conditions hereof, the Swingline Lender agrees to make swingline loans
(individually, a "SWINGLINE LOAN" and collectively, the "SWINGLINE LOANS") to
the Borrower from time to time during the Revolving Credit Commitment Period in
accordance with the procedures set forth in this Section 2.04, PROVIDED that (i)
the aggregate principal amount of all Swingline Loans shall not exceed $10.0
million (the "SWINGLINE SUBLIMIT") at any one time outstanding, (ii) the
principal amount of any borrowing of Swingline Loans may not exceed the
aggregate amount of the Available Revolving Credit Commitments of all Revolving
Lenders immediately prior to such borrowing or result in the Aggregate Revolving
Credit Exposure then outstanding exceeding the Total Revolving Credit
Commitments then in effect, and (iii) in no event may Swingline Loans be
borrowed hereunder if (x) a Default or Event of Default or Event of Termination
shall have occurred and be continuing and (y) such Default or Event of Default
or Event of Termination shall not have been subsequently cured or waived.
Amounts borrowed under this Section 2.04 may be repaid and, up to but excluding
the Revolving Credit Maturity Date, reborrowed. All Swingline Loans shall at all
times be ABR Loans. The Borrower shall give the Administrative Agent notice of
any Swingline Loan requested hereunder (which notice must be received by the
Administrative Agent prior to 2:00 p.m., New York City time, on the requested
Borrowing Date) specifying (A) the amount to be borrowed, and (B) the requested
Borrowing Date. Upon receipt of such notice, the Administrative Agent shall
promptly notify the Swingline Lender of the aggregate amount of such borrowing.
Not later than 4:00 p.m., New York City time, on the Borrowing Date specified in
such notice the Swingline Lender shall make such Swingline Loan available to the
Administrative Agent for the account of the Borrower at the office of the
Administrative Agent set forth in Section 9.01 in funds immediately available to
the Administrative Agent. Amounts so received by the Administrative Agent will
promptly be made available to the Borrower by the Administrative Agent crediting
the account of the Borrower on the books of such office with the amount made
available to the Administrative Agent by the Swingline Lender (or, in the case
of a Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.06(e), by remittance to the Issuing Bank)
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and in like funds as received by the Administrative Agent. Each Borrowing
pursuant to this Section 2.04 shall be in a minimum principal amount of $500,000
or an integral multiple of $100,000 in excess thereof.
(b) Notwithstanding the occurrence of any Default or Event of
Default or Event of Termination or noncompliance with the conditions precedent
set forth in Article IV or the minimum borrowing amounts specified in Section
2.02, if any Swingline Loan shall remain outstanding at 10:00 a.m., New York
City time, on the seventh Business Day following the Borrowing Date thereof and
if by such time on such seventh Business Day the Administrative Agent shall have
received neither (i) a notice of borrowing delivered by the Borrower pursuant to
Section 2.02 requesting that Revolving Loans be made pursuant to Section 2.01 on
the immediately succeeding Business Day in an amount at least equal to the
aggregate principal amount of such Swingline Loan, nor (ii) any other notice
satisfactory to the Administrative Agent indicating the Borrower's intent to
repay such Swingline Loan on the immediately succeeding Business Day with funds
obtained from other sources, the Administrative Agent shall be deemed to have
received a notice from the Borrower pursuant to Section 2.02 requesting that ABR
Revolving Loans be made pursuant to Section 2.01 on such immediately succeeding
Business Day in an amount equal to the amount of such Swingline Loan, and the
procedures set forth in Section 2.02 shall be followed in making such ABR
Revolving Loans; PROVIDED that for the purposes of determining each Lender's Pro
Rata Percentage with respect to such Borrowing, the Swingline Loan to be repaid
with the proceeds of such Borrowing shall be deemed to not be outstanding. The
proceeds of such ABR Revolving Loans shall be applied to repay such Swingline
Loan.
(c) If, for any reason, ABR Revolving Loans may not be, or are
not, made pursuant to paragraph (b) of this Section 2.04 to repay any Swingline
Loan as required by such paragraph, effective on the date such ABR Revolving
Loans would otherwise have been made, each Revolving Lender severally,
unconditionally and irrevocably agrees that it shall, without regard to the
occurrence of any Default or Event of Default, purchase a participating interest
in such Swingline Loan ("UNREFUNDED SWINGLINE LOAN") in an amount equal to the
amount of the ABR Revolving Loan which would otherwise have been made pursuant
to paragraph (b) of this Section 2.04. Each Revolving Lender will immediately
transfer to the Administrative Agent, in immediately available funds, the amount
of its participation, and the proceeds of such participations shall be
distributed by the Administrative Agent to the Swingline Lender. All payments by
the Revolving Lenders in respect of Unrefunded Swingline Loans and
participations therein shall be made in accordance with Section 2.13.
(d) Notwithstanding the foregoing, a Lender shall not have any
obligation to acquire a participation in a Swingline Loan pursuant to the
foregoing paragraphs if a Default or Event of Default or Event of Termination
shall have occurred and be continuing at the time such Swingline Loan was made
and such Lender shall have notified the Swingline Lender in writing prior to the
time such Swingline Loan was made, that such Default or Event of Default or such
Event of Termination has occurred and that such Lender will not acquire
participations in Swingline Loans made while such Default or Event of Default or
such Event of Termination is continuing.
SECTION 2.05. OPTIONAL AND MANDATORY PREPAYMENTS OF LOANS; REPAYMENTS
OF TERM LOANS. (a) The Borrower may at any time and from time to time prepay the
Loans (subject to compliance with the terms of Section 2.17), in whole or in
part, subject to Section 2.05(e), upon irrevocable notice to the Administrative
Agent not later than 12:00 noon, New York City time, two Business Days prior to
the date of such prepayment, specifying (i) the date and amount of prepayment,
and (ii) the Class and Priority Class of Loans to be prepaid and whether the
prepayment is of Eurodollar
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Loans, ABR Loans or a combination thereof (including in the case of Eurodollar
Loans, the Borrowing to which such prepayment is to be applied and, if of a
combination thereof, the amount allocable to each). Upon receipt of any such
notice the Administrative Agent shall promptly notify each relevant Lender
thereof. If any such notice is given, the amount specified in such notice shall
be due and payable on the date specified therein, together with accrued interest
to such date on the amount prepaid. Partial prepayments of Loans (other than
Swingline Loans) shall be in an aggregate principal amount of $1.0 million or a
whole multiple of $500,000 in excess thereof (or, if less, the remaining
outstanding principal amount thereof). Partial prepayments of Swingline Loans
shall be in an aggregate principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof (or, if less, the remaining outstanding principal
amount thereof).
(b) In the event and on such occasion that the Aggregate Revolving
Credit Exposure exceeds the Total Revolving Credit Commitment, the Borrower
shall prepay Revolving Credit Borrowings or Swingline Borrowings (or, if no such
Borrowings are outstanding, deposit cash collateral in the account established
with the Collateral Agent pursuant to Section 2.06(j)) in an aggregate amount
equal to such excess.
(c) (i) If the Borrower shall issue any Equity Interests or Equity
Rights (it being understood that the issuance of debt securities convertible
into, or exchangeable or exercisable for, any Equity Interest or Equity Right
shall be governed by Section 2.05(c)(ii) below) (other than any Excluded Equity
Issuance) (each, an "EQUITY ISSUANCE"), then (A) 50% if the Total Leverage Ratio
as of the date of such issuance is greater than or equal to 3.5x or (B) 25%
otherwise, of the Net Proceeds thereof shall be applied immediately after
receipt thereof toward the prepayment of the Loans and reduction of the
Revolving Credit Commitments in accordance with Section 2.05(e) below.
(ii) If the Borrower or any of its Subsidiaries shall incur any
Indebtedness (including pursuant to debt securities which are convertible into,
or exchangeable or exercisable for, any Equity Interest or Equity Rights) (other
than as permitted by Section 6.01(a)) (each, a "DEBT INCURRENCE"), 100% of the
Net Proceeds thereof shall be applied immediately after receipt thereof toward
the prepayment of the Loans and reduction of the Revolving Credit Commitments in
accordance with Section 2.05(e) below.
(iii) If the Borrower or any of its Subsidiaries shall receive Net
Proceeds from any Asset Sale, 100% of such Net Proceeds shall be applied
immediately after receipt thereof toward the prepayment of the Loans and
reduction of the Revolving Credit Commitments in accordance with Section 2.05(e)
below; PROVIDED that (x) the Net Proceeds from Asset Sales permitted by Section
6.05 shall not be required to be applied as provided herein on such date if and
to the extent that (1) no Default or Event of Default then exists or would arise
therefrom and (2) the Borrower delivers an officers' certificate to the
Administrative Agent on or prior to the date of such Asset Sale stating that
such Net Proceeds shall be reinvested or committed to be reinvested in capital
assets of the Borrower or any Subsidiary in each case within 180 days following
the date of such Asset Sale (which certificate shall set forth the estimates of
the proceeds to be so expended), (y) all such Net Proceeds shall be held in the
Collateral Account and released therefrom only in accordance with the terms of
the Security Agreement, and (z) if all or any portion of such Net Proceeds not
so applied as provided herein is not so used within such 180-day period (or if,
prior to such 180th day, the Borrower or any such Subsidiary shall have entered
into a binding agreement to so use any such Net Proceeds, within 360 days
following the date of such binding agreement), such remaining portion shall be
applied on the last day of such period as specified in this subsection (c)(iii);
PROVIDED, FURTHER, if the Property subject to such Asset Sale constituted
Collateral under the Security Documents, then any capital assets purchased with
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the Net Proceeds thereof pursuant to this subsection shall be mortgaged or
pledged, as the case may be, to the Collateral Agent, for its benefit and for
the benefit of the other Secured Parties in accordance with Section 5.11.
(iv) If the Borrower or any of its Subsidiaries shall receive
proceeds from insurance or condemnation recoveries in respect of any Destruction
or any proceeds or awards in respect of any Taking, 100% of the Net Proceeds
thereof shall be applied immediately after receipt thereof toward the prepayment
of the Loans and reduction of the Revolving Credit Commitments in accordance
with Section 2.05(e) below; PROVIDED, that (x) so long as no Default or Event of
Default then exists or would arise therefrom, such Net Proceeds shall not be
required to be so applied to the extent that the Borrower has delivered an
officers' certificate to the Administrative Agent promptly following the receipt
of such Net Proceeds stating that such proceeds shall be used to (1) repair,
replace or restore any Property in respect of which such Net Proceeds were paid
or (2) fund the substitution of other Property used or usable in the business of
the Borrower or the Subsidiaries, in each case within 180 days following the
date of the receipt of such Net Proceeds, (y) all such Net Proceeds shall be
held in the Collateral Account and released therefrom only in accordance with
the terms of the Security Agreement, and (z) if all or any portion of such Net
Proceeds not so applied as provided herein is not so used within 180 days (or
if, prior to such 180th day, the Borrower or any such Subsidiary shall have
entered into a binding agreement to so use any such Net Proceeds, within 360
days following the date of such binding agreement) after the date of the receipt
of such Net Proceeds, such remaining portion shall be applied on the last day of
such period as specified in this subsection (c)(iv); PROVIDED, FURTHER, if the
Property subject to such Destruction or Taking constituted Collateral under the
Security Documents, then any replacement or substitution Property purchased with
the Net Proceeds thereof pursuant to this subsection shall be mortgaged or
pledged, as the case may be, to the Collateral Agent, for its benefit and for
the benefit of the other Secured Parties in accordance with Section 5.11.
(v) If, for any Fiscal Year of the Borrower commencing with its
Fiscal Year ending on January 1, 2005, there shall be Excess Cash Flow for such
Fiscal Year, the Excess Cash Flow Percentage of such Excess Cash Flow shall be
applied, not later than 10 days after the date upon which the Borrower is
required to deliver its annual audit report pursuant to Section 5.01(b), toward
the prepayment of the Loans and reduction of the Revolving Credit Commitments in
accordance with Section 2.05(e) below.
(d) (i) The First Lien Term Loans shall be repaid in consecutive
quarterly installments on the dates set forth below (each such day, an
"INSTALLMENT PAYMENT DATE"), commencing on September 30, 2004, in an aggregate
amount equal to the amount specified below for each such Installment Payment
Date.
Installment Payment Date Installment Amount
------------------------ ------------------
September 30, 2004 $ 750,000
December 31, 2004 $ 750,000
March 31, 2005 $ 750,000
June 30, 2005 $ 750,000
September 30, 2005 $ 750,000
December 31, 2005 $ 750,000
March 31, 2006 $ 750,000
June 30, 2006 $ 750,000
September 30, 2006 $ 750,000
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Installment Payment Date Installment Amount
------------------------ ------------------
December 31, 2006 $ 750,000
March 31, 2007 $ 750,000
June 30, 2007 $ 750,000
September 30, 2007 $ 750,000
December 31, 2007 $ 750,000
March 31, 2008 $ 750,000
June 30, 2008 $ 750,000
September 30, 2008 $ 750,000
December 31, 2008 $ 750,000
March 31, 2009 $ 750,000
June 30, 2009 $ 750,000
September 30, 2009 $ 750,000
December 31, 2009 $ 750,000
March 31, 2010 $ 750,000
First Lien Term Loan Maturity Date $ 282,750,000
(ii) To the extent not previously paid, all Second Lien Term Loans
shall be due and payable on the Second Lien Term Loan Maturity Date.
(e) (i) Optional prepayments in respect of Term Loans under this
Agreement and mandatory prepayments pursuant to Section 2.05(c) shall be applied
first to reduce remaining scheduled installments of principal due in respect of
outstanding First Lien Term Loans under Section 2.05(d) in direct order of
maturity up to but not including the first scheduled installment due after the
date that is 12 months following the date of such prepayment. After application
of prepayments pursuant to the first sentence of this paragraph (e)(i) and to
the extent there are mandatory prepayment amounts remaining after such
application, such excess prepayments shall be applied to reduce outstanding
First Lien Term Loans pro rata against the remaining scheduled installments of
principal due in respect of the Term Loans under Section 2.05(d).
(ii) After application of prepayments pursuant to paragraph (e)(i)
and to the extent there are prepayment amounts remaining after such application
(x) other than in the case of a mandatory prepayment pursuant to Section
2.05(c)(v), (i) first, the Revolving Commitments shall be reduced (but not to
below $25.0 million), ratably among the Revolving Lenders in accordance with
their applicable Revolving Commitments in an aggregate amount equal to the
excess, (ii) second, to the extent there are prepayment amounts remaining after
such application, such excess prepayments shall be applied to reduce outstanding
Second Lien Term Loans and (iii) third, to the extent there are prepayment
amounts remaining after such application, the Revolving Commitments shall be
reduced ratably among the Revolving Lenders in accordance with their applicable
Revolving Commitments in an aggregate amount equal to the excess or (y) in the
case of a mandatory prepayment pursuant to Section 2.05(c)(v), (i) first, such
excess prepayments shall be applied to reduce outstanding Second Lien Term
Loans; PROVIDED that any Lender holding Second Lien Term Loans may elect, by
written notice to the Administrative Agent at least one Business Day prior to
the prepayment date, to decline all or any portion of any prepayment of its
Second Lien Term Loans pursuant to this clause (y)(i), and (ii) second, to the
extent there are prepayment amounts remaining after such application, the
Revolving Commitments shall be reduced ratably among the Revolving Lenders in
accordance with their applicable Revolving Commitments in an aggregate amount
equal to such excess.
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(iii) Optional terminations or reductions in Revolving Credit
Commitments shall be made in accordance with Section 2.11(b).
(iv) Except as otherwise may be directed by the Borrower, any
prepayment of Loans pursuant to this Section 2.05 shall be applied, first, to
any ABR Loans then outstanding and the balance of such prepayment, if any, to
the Eurodollar Loans then outstanding.
(f) If on any day on which Loans would otherwise be required to be
prepaid pursuant to this Section 2.05, but for the operation of this Section
2.05(f) (each, a "PREPAYMENT DATE"), the amount of such required prepayment
exceeds the then outstanding aggregate principal amount of ABR Loans which are
of the Type required to be prepaid, and no Default or Event of Default exists or
is continuing, then, at the Borrower's election, on such Prepayment Date, (i)
the Borrower shall deposit funds into the Collateral Account in an amount equal
to such excess, and only the outstanding ABR Loans which are of the Type
required to be prepaid shall be required to be prepaid on such Prepayment Date,
and (ii) on the last day of each Interest Period after such Prepayment Date in
effect with respect to a Eurodollar Loan which is of the Type required to be
prepaid, the Administrative Agent is irrevocably authorized and directed to
apply funds from the Collateral Account (and liquidate investments held in the
Collateral Account as necessary) to prepay such Eurodollar Loans for which the
Interest Period is then ending to the extent funds are available in the
Collateral Account.
(g) Upon optional prepayment of Second Lien Term Loans at any time
prior to the second anniversary of the Effective Date or mandatory prepayment of
Second Lien Term Loans at any time prior to the second anniversary of the
Effective Date pursuant to Section 2.05(c)(i) or (ii), the Borrower shall pay a
premium equal to (x) 2.00% of the principal amount prepaid, if such prepayment
is made prior to the first anniversary of the Effective Date or (y) 1.00% of the
principal amount prepaid, if such prepayment is made on or after the first
anniversary of the Effective Date and prior to the second anniversary of the
Effective Date. Upon optional prepayment of First Lien Term Loans with the
proceeds of any Indebtedness incurred under this Agreement ("REFINANCING
INDEBTEDNESS") at any time prior to the second anniversary of the Effective
Date, the Borrower shall pay a premium equal to (x) 2.00% of the principal
amount prepaid, if such prepayment is made prior to the first anniversary of the
Effective Date or (y) 1.00% of the principal amount prepaid, if such prepayment
is made on or after the first anniversary of the Effective Date and prior to the
second anniversary of the Effective Date; PROVIDED that no such premium shall be
paid if the all-in yield to the Borrower of such Refinancing Indebtedness is
equal to or greater than the all-in yield to the Borrower of the First Lien Term
Loans. All such premium payments shall be paid to the Administrative Agent for
the ratable benefit of the affected Lenders.
SECTION 2.06. LETTERS OF CREDIT.
(a) GENERAL. Subject to the terms and conditions set forth herein,
the Borrower may request the issuance of Letters of Credit for its own account,
in a form reasonably acceptable to the Administrative Agent and the Issuing
Bank, at any time and from time to time during the Revolving Credit Commitment
Period. In the event of any inconsistency between the terms and conditions of
this Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Borrower to, or entered into by
the Borrower with, the Issuing Bank relating to any Letter of Credit, the terms
and conditions of this Agreement shall control.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN
CONDITIONS. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding
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Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been approved by the
Issuing Bank) to the Issuing Bank and the Administrative Agent (reasonably in
advance of the requested date of issuance, amendment, renewal or extension) a
notice requesting the issuance of a Letter of Credit, or identifying the Letter
of Credit to be amended, renewed or extended, and specifying the date of
issuance, amendment, renewal or extension (which shall be a Business Day), the
date on which such Letter of Credit is to expire (which shall comply with
paragraph (c) of this Section), the amount of such Letter of Credit, the name
and address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. If requested
by the Issuing Bank, the Borrower also shall submit a letter of credit
application on the Issuing Bank's standard form in connection with any request
for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or extension, (i) the
LC Exposure shall not exceed $20.0 million and (ii) the Aggregate Revolving
Credit Exposure shall not exceed the Total Revolving Credit Commitment. With
respect to any Letter of Credit which contains any "evergreen" automatic renewal
provision, the Issuing Bank shall be deemed to have consented to any such
extension or renewal provided that all of the requirements of this Section 2.06
are met and no Default or Event of Default exists.
(c) EXPIRATION DATE. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year after the
date of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Revolving Credit Maturity Date.
(d) PARTICIPATIONS. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Revolving Lender, and each Revolving Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Revolving Lender's Commitment Percentage of the aggregate amount
available to be drawn under such Letter of Credit. In consideration and in
furtherance of the foregoing, each Revolving Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of
the Issuing Bank, such Revolving Lender's Commitment Percentage of each LC
Disbursement made by the Issuing Bank and not reimbursed by the Borrower on the
date due as provided in paragraph (e) of this Section, or of any reimbursement
payment required to be refunded to the Borrower for any reason. Each Revolving
Lender acknowledges and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or an Event of Default or reduction or
termination of the Revolving Credit Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.
(e) REIMBURSEMENT. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
LC Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on the date that
such LC Disbursement is made, if the Borrower shall have received notice of such
LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if
such notice has not been received by the Borrower prior to such time on such
date, then not later than 12:00 noon, New York City time, on (i) the Business
Day that the Borrower receives such notice, if such notice is received prior to
10:00 a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately
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following the day that the Borrower receives such notice, if such notice is not
received prior to such time on the day of receipt; PROVIDED that the Borrower
may, subject to the conditions to borrowing set forth herein, request in
accordance with Section 2.02 that such payment be financed with an ABR Revolving
Borrowing or Swingline Loan in an equivalent amount and, to the extent so
financed, the Borrower's obligation to make such payment shall be discharged and
replaced by the resulting ABR Revolving Borrowing or Swingline Loan. If the
Borrower fails to make such payment when due, the Administrative Agent shall
notify each Revolving Lender of the applicable LC Disbursement, the payment then
due from the Borrower in respect thereof and such Revolving Lender's Commitment
Percentage thereof. Promptly following receipt of such notice, each Revolving
Lender shall pay to the Administrative Agent its Commitment Percentage of the
payment then due from the Borrower, in the same manner as provided in Section
2.02 with respect to Loans made by such Revolving Lender (and Section 2.02 shall
apply, MUTATIS MUTANDIS, to the payment obligations of the Revolving Lenders),
and the Administrative Agent shall promptly pay to the Issuing Bank the amounts
so received by it from the Revolving Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the Issuing
Bank or, to the extent that Revolving Lenders have made payments pursuant to
this paragraph to reimburse the Issuing Bank, then to such Revolving Lenders and
the Issuing Bank as their interests may appear. Any payment made by a Revolving
Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC
Disbursement (other than the funding of ABR Revolving Loans or a Swingline Loan
as contemplated above) shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC Disbursement.
(f) OBLIGATIONS ABSOLUTE. The Borrower's obligation to reimburse
LC Disbursements as provided in paragraph (e) of this Section 2.06 shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any
draft or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. Neither
the Administrative Agent, the Revolving Lenders nor the Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; PROVIDED that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by the Issuing Bank's bad faith, gross negligence
or willful misconduct or its failure to exercise care when determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof. The parties hereto expressly agree that, in the absence of bad
faith, gross negligence or willful misconduct on the part of the Issuing Bank
(as finally determined by a court of competent jurisdiction), the Issuing Bank
shall be deemed to have exercised care in each
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such determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents presented
which appear on their face to be in substantial compliance with the terms of a
Letter of Credit, the Issuing Bank may, in its sole discretion, either accept
and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.
(g) DISBURSEMENT PROCEDURES. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; PROVIDED that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Revolving Lenders with respect to any such LC
Disbursement.
(h) INTERIM INTEREST. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
PROVIDED that if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section 2.06, then Section 2.08(c) shall
apply. Interest accrued pursuant to this paragraph shall be for the account of
the Issuing Bank, except that interest accrued on and after the date of payment
by any Revolving Lender pursuant to paragraph (e) of this Section 2.07 to
reimburse the Issuing Bank shall be for the account of such Lender to the extent
of such payment.
(i) REPLACEMENT OF THE ISSUING BANK. The Issuing Bank may be
replaced at any time by written agreement among the Borrower, the Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank. The
Administrative Agent shall notify the Lenders of any such replacement of the
Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.10(b). From and after the effective date of
any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of the Issuing Bank under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the replacement of an Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement with respect
to Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
(j) CASH COLLATERALIZATION. If any Event of Default shall occur
and be continuing, on the Business Day that the Borrower receives notice from
the Administrative Agent or the Requisite Lenders (or, if the maturity of the
Loans has been accelerated, Revolving Lenders with LC Exposure representing
greater than 50% of the total LC Exposure) demanding the deposit of cash
collateral pursuant to this paragraph, the Borrower shall deposit in the
Collateral Account an amount in cash equal to the LC Exposure as of such date
plus any accrued and unpaid interest thereon; PROVIDED that the obligation to
deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other notice
of any kind, upon the occurrence of any Event of Default with respect to the
Borrower described in clause (a) of Section 7.01 or any
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Event of Default described in clause (i) of Section 7.01. Each such deposit
shall be held by the Collateral Agent as collateral for the payment and
performance of the obligations of the Borrower under this Agreement and the
Borrower hereby grants the Collateral Agent a security interest in respect of
each such deposit and the Collateral Account in which such deposits are held.
The Collateral Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over the Collateral Account. Other than any
interest earned on the investment of such deposits, which investments shall be
made in accordance with the Security Agreement, such deposits shall not bear
interest. Interest or profits, if any, on such investments shall accumulate in
the Collateral Account. Moneys deposited in the Collateral Account pursuant to
this Section 2.06(j) shall be applied by the Collateral Agent to reimburse the
Issuing Bank for LC Disbursements for which it has not been reimbursed and, to
the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or,
if the maturity of the Loans has been accelerated (but subject to the consent of
Revolving Lenders with LC Exposure representing greater than 50% of the total LC
Exposure), be applied to satisfy other obligations of the Borrower under this
Agreement. If the Borrower is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be returned to the Borrower within
three Business Days after all Defaults or Events of Default have been cured or
waived.
SECTION 2.07. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of the relevant Lenders (i) in respect of Revolving Credit Borrowings,
on the Revolving Credit Maturity Date (or such earlier date as, and to the
extent that, such Revolving Loan becomes due and payable pursuant to Section
2.05 or Article VII), the unpaid principal amount of each Revolving Loan and
each Swingline Loan made to it by each such Lender, (ii) in respect of First
Lien Term Borrowings, on the First Lien Term Loan Maturity Date (or such earlier
date as, and to the extent that, such First Lien Term Loan becomes due and
payable pursuant to Section 2.05 or Article VII), the unpaid principal amount of
each First Lien Term Loan held by each such Lender and (iii) in respect of
Second Lien Term Borrowings, on the Second Lien Term Loan Maturity Date (or such
earlier date as, and to the extent that, such Second Lien Term Loan becomes due
and payable pursuant to Article VII), the unpaid principal amount of each Second
Lien Term Loan held by each such Lender. The Borrower hereby further agrees to
pay interest in immediately available funds at the applicable office of the
Administrative Agent (as specified in Section 2.13(a)) on the unpaid principal
amount of the Revolving Loans, Swingline Loans and Term Loans made to it from
time to time from the date hereof until payment in full thereof at the rates per
annum, and on the dates, set forth in Section 2.08. All payments required
hereunder shall be made in Dollars.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
the appropriate lending office of such Lender resulting from each Loan made by
such lending office of such Lender from time to time, including the amounts of
principal and interest payable and paid to such lending office of such Lender
from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant
to Section 9.04, and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount of each such Loan,
the Class and Type of each such Loan and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become due
and payable from the Borrower to each Lender hereunder in respect of each such
Loan and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrower in respect of each such Loan and each Lender's share
thereof.
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(d) The entries made in the Register and accounts maintained
pursuant to paragraphs (b) and (c) of this Section 2.07 and the Notes maintained
pursuant to paragraph (e) of this Section 2.07 shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; PROVIDED, HOWEVER, that the
failure of any Lender or the Administrative Agent to maintain such account, such
Register or such subaccount, as applicable, or any error therein, shall not in
any manner affect the obligation of the Borrower to repay (with applicable
interest) the Loans made to the Borrower by such Lender in accordance with the
terms of this Agreement.
(e) The Loans of each Class made by each Lender to the Borrower
shall, if requested by the applicable Lender (which request shall be made to the
Administrative Agent), be evidenced by a single Note duly executed on behalf of
the Borrower, in substantially the form attached hereto as EXHIBIT ▇-▇, -▇, -▇
▇▇ -▇, as applicable, with the blanks appropriately filled, payable to the order
of such Lender.
SECTION 2.08. INTEREST RATES AND PAYMENT DATES. (a) Each Eurodollar
Loan shall bear interest (computed on the basis of the actual number of days
elapsed over a year of 360 days) for each day during each Interest Period with
respect thereto at a rate per annum equal to the Adjusted LIBO Rate determined
for such Interest Period, plus the Applicable Rate.
(b) Each ABR Loan (including each Swingline Loan) shall bear
interest (computed on the basis of the actual number of days elapsed over a year
of 365 or 366 days, as the case may be, or over a year of 360 days when the
Alternate Base Rate is determined by reference to clause (c) of the definition
of "Alternate Base Rate") at a rate per annum equal to the Alternate Base Rate
plus the Applicable Rate.
(c) If all or a portion of (i) the principal amount of any Loan,
(ii) any interest payable thereon or (iii) any Commitment Fee or other amount
payable hereunder shall not be paid when due (whether at the stated maturity
thereof or by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum which is (x) in the case of overdue principal
(except as otherwise provided in clause (y) below), the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
Section 2.08 PLUS 2.00% per annum or (y) in the case of any overdue interest,
Commitment Fee or other amount, the rate described in Section 2.08(b) applicable
to an ABR Revolving Loan PLUS 2.00% per annum, in each case from the date of
such nonpayment to (but excluding) the date on which such amount is paid in full
(after as well as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date and on the First Lien Term Loan Maturity Date, the Second Lien Term Loan
Maturity Date and the Revolving Credit Maturity Date; PROVIDED that (i) interest
accrued pursuant to paragraph (c) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan, accrued interest
on the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion. Interest in respect of each Loan shall accrue from and including the
first day of an Interest Period to but excluding the last day of such Interest
Period.
SECTION 2.09. COMPUTATION OF INTEREST. Each determination of an
interest rate by the Administrative Agent pursuant to any provision of this
Agreement shall be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error.
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SECTION 2.10. FEES. (a)The Borrower agrees to pay a commitment fee (a
"COMMITMENT FEE") to each Revolving Lender, for which payment will be made in
arrears through the Administrative Agent on the last day of March, June,
September and December beginning after the Effective Date, and on the Commitment
Fee Termination Date (as defined below). The Commitment Fee due to each
Revolving Lender shall commence to accrue for a period commencing on the
Effective Date and shall cease to accrue on the date (the "COMMITMENT FEE
TERMINATION DATE") that is the earlier of (i) the date on which the Revolving
Credit Commitment of such Revolving Lender shall be terminated as provided
herein and (ii) the first date after the end of the Revolving Credit Commitment
Period. The Commitment Fee accrued to each Revolving Lender shall equal the
Commitment Fee Percentage multiplied by such Lender's Commitment Fee Average
Daily Amount (as defined below) for the applicable quarter (or shorter period
commencing on the date of this Agreement and ending with such Lender's
Commitment Fee Termination Date). A Revolving Lender's "COMMITMENT FEE AVERAGE
DAILY AMOUNT" with respect to a calculation period shall equal the average daily
amount during such period calculated using the daily amount of such Revolving
Lender's Revolving Credit Commitment less such Revolving Lender's Revolving
Credit Exposure (excluding clause (c) of the definition thereof for purposes of
determining the Commitment Fee Average Daily Amount only) for any applicable
days during such Revolving Lender's Revolving Credit Commitment Period. All
Commitment Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days.
(b) The Borrower agrees to pay (i) to the Administrative Agent for
the account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at a rate equal to the
Applicable Rate for Eurodollar Revolving Loans on the average daily amount of
such Lender's LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such Revolving
Lender's Revolving Credit Commitment terminates and the date on which such
Revolving Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank a
fronting fee, which shall accrue at the rate of 0.25% per annum on the average
daily amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date of termination of the
Revolving Credit Commitments and the date on which there ceases to be any LC
Exposure, as well as the Issuing Bank's reasonable and customary fees with
respect to the issuance, amendment, renewal or extension of any Letter of Credit
or processing of drawings thereunder. Participation fees and fronting fees
(collectively, "LC FEES") accrued through and including the last day of March,
June, September and December of each calendar year during the Revolving Credit
Commitment Period shall be payable on the third Business Day following such last
day, commencing on the first such date to occur after the Effective Date;
PROVIDED that all such fees shall be payable on the date on which the Revolving
Credit Commitments terminate and any such fees accruing after the date on which
the Revolving Credit Commitments terminate shall be payable on demand. Any other
fees payable to the Issuing Bank pursuant to this paragraph shall be payable
within 10 days after demand therefor. All participation fees and fronting fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).
(c) The Borrower agrees to pay to the Administrative Agent the
correct administrative fee set forth in the Fee Letter (the "AGENT FEES").
(d) All Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution. Once paid, none
of the Fees shall be refundable.
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SECTION 2.11. TERMINATION, REDUCTION OR ADJUSTMENT OF COMMITMENTS.
(a) Unless previously terminated, (i) the Term Loan Commitments shall terminate
at 5:00 p.m., New York City time, on the Effective Date and (ii) the Revolving
Credit Commitments shall terminate on the Revolving Credit Maturity Date.
(b) The Borrower shall have the right, upon one Business Day's
notice to the Administrative Agent, to terminate or, from time to time, reduce
the amount of the Revolving Credit Commitments; PROVIDED that no such
termination or reduction of Revolving Credit Commitments shall be permitted if,
after giving effect thereto and to any repayments of the Loans made on the
effective date thereof, the Aggregate Revolving Credit Exposure then outstanding
would exceed the Total Revolving Credit Commitment then in effect.
(c) The Borrower shall pay to the Administrative Agent for the
account of the applicable Revolving Lenders, on each date of termination or
reduction of the Revolving Credit Commitments, the Commitment Fee on the amount
of the Revolving Credit Commitments so terminated or reduced accrued to the date
of such termination or reduction.
SECTION 2.12. INABILITY TO DETERMINE INTEREST RATE; UNAVAILABILITY OF
DEPOSITS; INADEQUACY OF INTEREST RATE. If prior to 11:00 a.m., London time, two
Business Days before the first day of any Interest Period, including an initial
Interest Period, for a requested Eurodollar Borrowing:
(i) the Administrative Agent shall have determined in good faith
(which determination shall be conclusive and binding upon the Borrower)
that, by reason of circumstances affecting the relevant market generally,
adequate and reasonable means do not exist for ascertaining the Adjusted
LIBO Rate for such Eurodollar Borrowing for such Interest Period, or
(ii) the Administrative Agent shall have received notice from a
majority in interest of the Lenders of the applicable Class that the
Adjusted LIBO Rate determined or to be determined for such Interest Period
for such Eurodollar Borrowing will not adequately and fairly reflect the
cost to such Lenders (as conclusively certified by such Lenders) of making
or maintaining their affected Loans during such Interest Period,
then the Administrative Agent shall give telecopy or telephonic notice thereof
to the Borrower and the Lenders by 12:00 noon, New York City time, on the same
day. The Administrative Agent shall give telecopy or telephonic notice to the
Borrower and the Lenders as soon as practicable after the circumstances giving
rise to such notice no longer exist, and until such notice has been given, any
affected Eurodollar Loans shall not be (x) converted or continued pursuant to
Section 2.03 or (y) made pursuant to a Borrowing Request, and shall be continued
or made as an ABR Loans, as the case may be.
SECTION 2.13. PRO RATA TREATMENT AND PAYMENTS. (a)Each reduction of
the Revolving Credit Commitments of the Revolving Lenders shall be made PRO RATA
according to the amounts of such Revolving Lenders' Commitment Percentages. Each
payment (including each prepayment) by the Borrower on account of principal of
and interest on Loans which are ABR Loans shall be made PRO RATA according to
the respective outstanding principal amounts of such ABR Loans then held by the
Lenders of the applicable Class. Each payment (including each prepayment) by the
Borrower on account of principal of and interest on Loans which are Eurodollar
Loans designated by the Borrower to be applied to a particular Eurodollar
Borrowing shall be made PRO RATA according to the respective outstanding
principal amounts of such Loans then held by the Lenders of the applicable
Class. Each payment (including each prepayment) by the Borrower on account of
principal of and
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interest on Swingline Loans shall be made PRO RATA according to the respective
outstanding principal amounts of the Swingline Loans or participating interests
therein, as the case may be, then held by the relevant Lenders. All payments
(including prepayments) to be made by the Borrower hereunder, whether on account
of principal, interest, fees or otherwise, shall be made without setoff or
counterclaim and shall be made prior to 12:00 noon, New York time, on the due
date thereof to the Administrative Agent, for the account of the Lenders of the
applicable Class, at the Administrative Agent's New York office specified in
Section 9.01 in Dollars and in immediately available funds. The Administrative
Agent shall distribute such payments to the Lenders entitled thereto promptly
upon receipt. If any payment hereunder (other than payments on Eurodollar Loans)
becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day, and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension. If any payment on a Eurodollar Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day (and, with respect to payments of
principal, interest thereon shall be payable at the then applicable rate during
such extension) unless the result of such extension would be to extend such
payment into another calendar month, in which event such payment shall be made
on the immediately preceding Business Day.
(b) Subject to Section 2.12, unless the Administrative Agent shall
have been notified in writing by any Lender prior to a Borrowing that such
Lender will not make the amount that would constitute its share of such
Borrowing available to the Administrative Agent, the Administrative Agent may
assume that such Lender is making such amount available to the Administrative
Agent, and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. If such amount is not made
available to the Administrative Agent by the required time on the Borrowing Date
therefor, such Lender shall pay to the Administrative Agent, on demand, such
amount with interest thereon at a rate equal to the daily average Federal Funds
Rate for the period until such Lender makes such amount immediately available to
the Administrative Agent. A certificate of the Administrative Agent submitted to
any Lender with respect to any amounts owing under this Section 2.13(b) shall be
conclusive in the absence of manifest error. If such Lender's share of such
Borrowing is not made available to the Administrative Agent by such Lender
within three Business Days of such Borrowing Date, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at the rate
per annum applicable to ABR Revolving Loans hereunder, on demand, from the
Borrower, but without prejudice to any right or claim that the Borrower may have
against such Lender.
(c) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then due to such parties.
SECTION 2.14. ILLEGALITY. Notwithstanding any other provision herein,
if the adoption of or any change in any Requirement of Law, or in the
interpretation or application thereof, shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert ABR Loans to Eurodollar Loans shall
forthwith be suspended until such time as the making or maintaining of
Eurodollar Loans shall no longer be unlawful, and (b) such
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Lender's Loans then outstanding as Eurodollar Loans, if any, shall be converted
automatically to ABR Loans on the respective last days of the then current
Interest Periods with respect to such Loans or within such earlier period as
required by law.
SECTION 2.15. REQUIREMENTS OF LAW. (a) If at any time any Lender or
the Issuing Bank reasonably determines that the introduction of, or any change
in or in the interpretation of, any law, treaty or governmental rule, regulation
or order (other than any change by way of imposition or increase of reserve
requirements included in determining the Adjusted LIBO Rate) or the compliance
by such Lender or the Issuing Bank with any guideline, request or directive from
any central bank or other Governmental Authority (whether or not having the
force of law), shall have the effect of increasing the cost to such Lender or
the Issuing Bank for agreeing to make or making, funding or maintaining any
Eurodollar Loans or participating in, issuing or maintaining any Letter of
Credit, then the Borrower shall from time to time, within five days of demand
therefor by such Lender or the Issuing Bank (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender or the Issuing Bank additional amounts sufficient to compensate such
Lender or the Issuing Bank for such increased cost. A certificate as to the
amount of such increased cost, submitted to the Borrower and the Administrative
Agent by such Lender or the Issuing Bank, shall be conclusive and binding for
all purposes, absent manifest error. Such Lender or the Issuing Bank, as
applicable, shall promptly notify the Administrative Agent and the Borrower in
writing of the occurrence of any such event, such notice to state, in reasonable
detail, the reasons therefor and the additional amount required fully to
compensate such Lender or the Issuing Bank, as applicable, for such increased
cost or reduced amount. Such additional amounts shall be payable directly to
such Lender or the Issuing Bank, as applicable, within five days of the
Borrower's receipt of such notice, and such notice shall, in the absence of
manifest error, be conclusive and binding on the Borrower.
(b) If any change in, or the introduction, adoption,
effectiveness, interpretation, reinterpretation or phase-in of, any law or
regulation, directive, guideline, decision or request (whether or not having the
force of law) of any court, central bank, regulator or other Governmental
Authority after the date hereof affects or would affect the amount of capital
required or expected to be maintained by any Lender or the Issuing Bank (or a
holding company controlling such Lender or the Issuing Bank) and such Lender or
the Issuing Bank reasonably determines that the rate of return on its capital
(or the capital of its holding company, as the case may be) as a consequence of
its Revolving Credit Commitment or the Loans made by it or its participations in
Swingline Loans or any issuance, participation or maintenance of Letters of
Credit is reduced to a level below that which such Lender or the Issuing Bank
(or its holding company) could have achieved but for the occurrence of any such
circumstance, then, in any such case upon notice from time to time by such
Lender or the Issuing Bank to the Borrower, the Borrower shall, within five days
of the Borrower's receipt of such notice, pay directly to such Lender or the
Issuing Bank, as the case may be, additional amounts sufficient to compensate
such Lender or the Issuing Bank (or its holding company) for such reduction in
rate of return. A statement of such Lender or the Issuing Bank as to any such
additional amount or amounts (including calculations thereof in reasonable
detail) shall, in the absence of manifest error, be conclusive and binding on
the Borrower. In determining such amount, such Lender or the Issuing Bank may
use any reasonable method of averaging and attribution that it shall deem
applicable.
(c) In the event that the Issuing Bank or any Lender determines
that any event or circumstance that will lead to a claim under this Section 2.15
has occurred or will occur, the Issuing Bank or such Lender will use its best
efforts to so notify the Borrower; PROVIDED that any failure to provide such
notice shall in no way impair the rights of the Issuing Bank or such Lender to
demand
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and receive compensation under this Section 2.15, but without prejudice to any
claims of the Borrower for compensation for actual damages sustained as a result
of any failure to observe this undertaking.
SECTION 2.16. TAXES. All payments by the Borrower of principal of,
and interest on, the Loans and all other amounts payable hereunder shall be made
free and clear of and without deduction for any present or future income,
excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by any taxing authority on the
Administrative Agent, the Issuing Bank or any Lender (or any assignee of such
Lender or the Issuing Bank, as the case may be, or a Participant or a change in
designation of the lending office of a Lender or the Issuing Bank, as the case
may be (a "TRANSFEREE")), but excluding franchise taxes and taxes imposed on or
measured by the recipient's net income (such non-excluded items being called
"TAXES") unless required by applicable law, rule or regulation. In the event
that any withholding or deduction from any payment to be made by the Borrower
hereunder is required in respect of any Taxes pursuant to any applicable law,
rule or regulation, then the Borrower will:
(a) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(b) promptly forward to the Administrative Agent an official
receipt or other documentation reasonably satisfactory to the
Administrative Agent evidencing such payment to such authority; and
(c) pay to the Administrative Agent for the account of the Lenders
or the Issuing Bank, as the case may be, such additional amount or amounts
as are necessary to ensure that the net amount actually received by each
Lender or the Issuing Bank, as the case may be, will equal the full amount
such Lender or the Issuing Bank, as the case may be, would have received
had no such withholding or deduction been required.
Moreover, if any Taxes are directly asserted against the Administrative Agent,
the Issuing Bank or any Lender or Transferee with respect to any payment
received by the Administrative Agent, the Issuing Bank or such Lender or
Transferee hereunder, the Administrative Agent, the Issuing Bank or such Lender
or Transferee may pay such Taxes and the Borrower will promptly pay such
additional amounts (including any penalties, interest or expenses) as shall be
necessary in order that the net amount received by such Person after the payment
of such Taxes (including any Taxes on such additional amount) shall equal the
amount such Person would have received had such Taxes not been asserted. In
addition, the Borrower shall also reimburse each Lender or Transferee or the
Issuing Bank, upon the written request of such Lender or Transferee or Issuing
Bank, for taxes imposed on or measured by the net income of such Person pursuant
to the laws of the United States of America, any state or political subdivision
thereof, or the jurisdiction in which such Person is incorporated, or a
jurisdiction in which the principal executive office or lending office of such
Person is located, or under the laws of any political subdivision or taxing
authority of any such jurisdiction, as such Person shall reasonably determine
are or were payable by such Person, in respect of amounts payable to such Person
pursuant to this Section 2.16 taking into account the amount of Taxes that are
(x) allowed as a deduction in determining taxes imposed on or measured by the
net income or allowed as a credit against any taxes imposed on or measured by
net income and (y) payable to such Person pursuant to this Section 2.16.
If the Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent, for the account
of the Issuing Bank, the respective Lenders
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or Transferees, the required receipts or other required documentary evidence,
the Borrower shall indemnify the Issuing Bank, Lenders and Transferees for any
incremental Taxes, interest, penalties or other costs (including reasonable
attorneys' fees and expenses) that may become payable by the Issuing Bank, any
Lender or Transferee as a result of any such failure. For purposes of this
Section 2.16, a distribution hereunder by the Administrative Agent to or for the
account of the Issuing Bank, any Lender or Transferee shall be deemed a payment
by the Borrower.
Each Lender or Transferee that is organized under the laws of a
jurisdiction other than the United States of America or any state or political
subdivision thereof shall, on or prior to the Effective Date (in the case of
each Lender that is a party hereto on the Effective Date) or on or prior to the
date of any assignment, participation or change in the designated lending office
hereunder (in the case of a Transferee) and thereafter as reasonably requested
from time to time by the Borrower or the Administrative Agent, execute and
deliver, if legally able to do so, to the Borrower and the Administrative Agent
one or more (as the Borrower or the Administrative Agent may reasonably request)
United States Internal Revenue Service Forms W-8BEN or such other forms or
documents (or successor forms or documents), appropriately completed, as may be
applicable to establish the extent, if any, to which a payment to such Lender or
Transferee is exempt from or entitled to a reduced rate of withholding or
deduction of Taxes.
With respect to obligations under this Agreement other than those
specified in the immediately following paragraph, the Borrower shall not be
required to indemnify or to pay any additional amounts to the Issuing Bank, any
Lender or Transferee with respect to any Taxes pursuant to this Section 2.16 to
the extent that (i) any obligation to withhold, deduct or pay amounts with
respect to such Tax existed on the date the Issuing Bank, such Lender or
Transferee became a party to this Agreement or otherwise becomes a Transferee
(and, in such case, the Borrower may deduct and withhold such Tax from payments
to the Issuing Bank, such Lender or Transferee), or (ii) any Lender or
Transferee fails to comply in full with the provisions of the immediately
preceding paragraph (and, in such case, the Borrower may deduct and withhold all
Taxes required by law as a result of such noncompliance from payments to the
Issuing Bank, such Lender or Transferee).
Notwithstanding anything to the contrary in this Section 2.16, if the
Internal Revenue Service determines that a Lender (or Transferee) is a conduit
entity participating in a conduit financing arrangement as defined in Section
7701(l) of the Code and the regulations thereunder and the Borrower was not a
participant to such arrangement (other than as the Borrower under this
Agreement) (a "CONDUIT FINANCING ARRANGEMENT"), then (i) the Borrower shall have
no obligation to pay additional amounts or indemnify the Lender or Transferee
for any Taxes with respect to any payments hereunder to the extent the amount of
such Taxes exceeds the amount that would have otherwise been withheld or
deducted had the Internal Revenue Service not made such a determination and (ii)
such Lender or Transferee shall indemnify the Borrower in full for any and all
taxes for which the Borrower is held directly liable under Section 1461 of the
Code by virtue of such Conduit Financing Arrangement; PROVIDED that the Borrower
(i) promptly forwards to the indemnitor an official receipt or other
documentation satisfactorily evidencing such payment, (ii) shall contest such
tax upon the reasonable request of the indemnitor and at such indemnitor's cost
and (iii) shall pay to such indemnitor within 30 days any refund of such taxes
(including interest thereon). Each Lender or Transferee represents that it is
not participating in a Conduit Financing Arrangement.
In the event that the Issuing Bank or any Lender determines that any
event or circumstance that will lead to a claim by it under this Section 2.16
has occurred or will occur, the Issuing Bank or such Lender will use its best
efforts to so notify the Borrower; PROVIDED that any failure to
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provide such notice shall in no way impair the rights of the Issuing Bank or any
Lender to demand and receive compensation under this Section 2.16, but without
prejudice to any claims of the Borrower for failure to observe this undertaking.
SECTION 2.17. INDEMNITY. In the event any Lender shall incur any loss
or expense (including any loss (other than lost profit) or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Lender to make, continue or maintain any portion of the principal amount of
any Loan as, or to convert any portion of the principal amount of any Loan into,
a Eurodollar Loan) as a result of any conversion of a Eurodollar Loan to an ABR
Loan or repayment or prepayment of the principal amount of any Eurodollar Loan
on a date other than the scheduled last day of the Interest Period applicable
thereto, whether pursuant to Section 2.03, 2.05, 2.07, 2.14, 2.15 or 2.20 or
otherwise, or any failure to borrow or convert any Eurodollar Loan after notice
thereof shall have been given hereunder, whether by reason of any failure to
satisfy a condition to such Borrowing or otherwise, then, upon the written
notice of such Lender to the Borrower (with a copy to the Administrative Agent),
the Borrower shall, within five days of its receipt thereof, pay directly to
such Lender such amount as will (in the reasonable determination of such Lender)
reimburse such Lender for such loss or expense. Such written notice (which shall
include calculations in reasonable detail) shall, in the absence of manifest
error, be conclusive and binding on the Borrower.
SECTION 2.18. CHANGE OF LENDING OFFICE. Each Lender (or Transferee)
agrees that, upon the occurrence of any event giving rise to the operation of
Section 2.14, 2.15 or 2.16 with respect to such Lender (or Transferee), it will,
if requested by the Borrower, use commercially reasonable efforts (subject to
overall policy considerations of such Lender (or Transferee)) to designate
another lending office for any Loans affected by such event with the object of
avoiding the consequences of such event; PROVIDED that such designation is made
on terms that, in the sole judgment of such Lender, cause such Lender and its
respective lending offices to suffer no material economic, legal or regulatory
disadvantage; and PROVIDED, FURTHER, that nothing in this Section 2.18 shall
affect or postpone any of the obligations of the Borrower or the rights of any
Lender (or Transferee) pursuant to Sections 2.14, 2.15 and 2.16.
SECTION 2.19. SHARING OF SETOFFS. Each Lender agrees that if it
shall, through the exercise of a right of banker's lien, setoff or counterclaim
against the Borrower, or pursuant to a secured claim under Section 506 of Title
11 of the United States Code or other security or interest arising from, or in
lieu of, such secured claim received by such Lender under any applicable
bankruptcy, insolvency or other similar law or otherwise, or by any other means,
obtain payment (voluntary or involuntary) in respect of any Loans or
participations in LC Disbursements which at the time shall be due and payable as
a result of which the unpaid principal portion of its Loans and participations
in LC Disbursements which at the time shall be due and payable shall be
proportionately less than the unpaid principal portion of such Loans and
participations in LC Disbursements of any other Lender, it shall be deemed
simultaneously to have purchased from such other Lender at face value, and shall
promptly pay to such other Lender the purchase price for, a participation in
such Loans and participations in LC Disbursements of such other Lender, so that
the aggregate unpaid principal amount of such Loans and participations in LC
Disbursements held by each Lender shall be in the same proportion to the
aggregate unpaid principal amount of all such Loans and participations in LC
Disbursements as prior to such exercise of banker's lien, setoff or counterclaim
or other event; PROVIDED, HOWEVER, that if any such purchase or purchases or
adjustments shall be made pursuant to this Section 2.19 and the payment giving
rise thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the purchase
price or prices or adjustments restored without interest. The Borrower expressly
consents to the foregoing arrangements and agrees that any
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Lender holding a participation in a Loan or an LC Disbursement deemed to have
been so purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by the Borrower to such
Lender by reason thereof as fully as if such Lender were a direct creditor
directly to the Borrower in the amount of such participation.
SECTION 2.20. ASSIGNMENT OF COMMITMENTS UNDER CERTAIN CIRCUMSTANCES.
In the event that (a) any Lender shall have delivered a notice or certificate
pursuant to Section 2.14 or 2.15, or the Borrower shall be required to make
additional payments to any Lender under Section 2.16 (each, an "INCREASED COST
LENDER") or (b) in connection with any proposed amendment, modification,
termination, waiver or consent with respect to any of the provisions hereof
described in Section 9.08(e), the consent of all Lenders required hereunder
would have been obtained but for such Lender's failure to consent (such Lender,
a "NON-CONSENTING LENDER"); then, with respect to each such Non-Consenting
Lender and Increased Cost Lender (the "TERMINATED LENDER"), the Borrower shall
have the right, but not the obligation, at its own expense, upon notice to such
Terminated Lender and the Administrative Agent, to replace such Terminated
Lender with an assignee (in accordance with and subject to the restrictions
contained in Section 9.04) approved by the Administrative Agent, the Issuing
Bank and the Swingline Lender (which approval shall not be unreasonably
withheld), and such Terminated Lender hereby agrees to transfer and assign
without recourse (in accordance with and subject to the restrictions contained
in Section 9.04) all its interests, rights and obligations under this Agreement
to such assignee; PROVIDED, HOWEVER, that no Terminated Lender shall be
obligated to make any such assignment unless (i) such assignment shall not
conflict with any law or any rule, regulation or order of any Governmental
Authority and (ii) such assignee or the Borrower shall pay to the affected
Terminated Lender in immediately available funds on the date of such assignment
the principal of and interest accrued to the date of payment on the Loans made
by such Terminated Lender and participations in LC Disbursements and Swingline
Loans held by such Terminated Lender and all commitment fees and other fees owed
to such Terminated Lender hereunder and all other amounts accrued for such
Terminated Lender's account or owed to it hereunder (including, without
limitation, any Commitment Fees).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Administrative Agent to enter
into this Agreement and to extend credit hereunder and under the other Loan
Documents on the Effective Date, the Loan Parties, jointly and severally, make
the representations and warranties set forth in this Article III (after giving
effect to the Transactions) and upon the occurrence of each Credit Event
thereafter:
SECTION 3.01. ORGANIZATION, ETC. Each Loan Party (a) is a corporation
or other form of legal entity, and each of its Subsidiaries is a corporation,
partnership or other form of legal entity, validly organized and existing and in
good standing under the laws of the jurisdiction of its incorporation or
organization, as the case may be, (b) has all requisite corporate or other power
and authority to carry on its business as now conducted, (c) is duly qualified
to do business and is in good standing as a foreign corporation or foreign
partnership (or comparable foreign qualification, if applicable, in the case of
any other form of legal entity), as the case may be, in each jurisdiction where
the nature of its business requires such qualification, except where the failure
to so qualify will not have a Material Adverse Effect, and (d) has full power
and authority and holds all requisite material governmental licenses, permits
and other approvals to enter into and perform its obligations under this
Agreement and each other Loan Document to which it is a party and to own or hold
under lease its Property and to conduct its business substantially as currently
conducted by it.
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SECTION 3.02. DUE AUTHORIZATION, NON-CONTRAVENTION, ETC. The
execution, delivery and performance by each Loan Party of this Agreement and
each other Loan Document to which it is a party, the borrowing of the Loans, the
use of the proceeds thereof and the issuance of the Letters of Credit hereunder
are within each Loan Party's corporate, partnership or comparable powers, as the
case may be, have been duly authorized by all necessary corporate, partnership
or comparable and, if required, stockholder action, as the case may be, and do
not
(a) contravene the Organic Documents of any Loan Party or any of
its respective Subsidiaries;
(b) contravene any material law, statute, rule or regulation
binding on or affecting any Loan Party or any of its respective
Subsidiaries;
(c) violate or result in a default or event of default or an
acceleration of any rights or benefits under any material indenture,
agreement or other instrument binding upon any Loan Party or any of its
respective Subsidiaries; or
(d) result in, or require the creation or imposition of, any Lien
on any assets of any Loan Party or any of its respective Subsidiaries that
would have or could reasonably be expected to have a Material Adverse
Effect, except Liens created under the Loan Documents.
SECTION 3.03. GOVERNMENT APPROVAL, REGULATION, ETC. No consent,
authorization or approval or other action by, and no notice to or filing with,
any Governmental Authority or regulatory body or other Person is required for
the due execution, delivery or performance by the Borrower or any other Loan
Party of this Agreement or any other Loan Document, the borrowing of the Loans,
the use of the proceeds thereof and the issuance of Letters of Credit hereunder
except such as have been obtained or made and are in full force and effect and
except filings necessary to perfect Liens under the Security Documents. No Loan
Party or any of its respective Subsidiaries is an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, or a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
SECTION 3.04. VALIDITY, ETC. This Agreement has been duly executed
and delivered by the Borrower and constitutes, and each other Loan Document to
which any Loan Party is to be a party will, on the due execution and delivery
thereof and assuming the due execution and delivery of this Agreement by each of
the other parties hereto, constitute, the legal, valid and binding obligation of
such Loan Party enforceable in accordance with its respective terms, subject to
the effect of bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforceability of creditors' rights generally and to general
principles of equity.
SECTION 3.05. FINANCIAL INFORMATION. (a) The consolidated balance
sheets of the Borrower and its Subsidiaries as of January 3, 2004 reported on by
Ernst & Young LLP, independent public accountants, and the related consolidated
statements of income, stockholders' equity and cash flow of the Borrower for the
three years ended January 3, 2004, copies of which have been furnished to the
Administrative Agent, have been prepared in accordance with GAAP, and present
fairly in all material respects the consolidated financial condition of the
Borrower and its Subsidiaries as of the dates thereof and the results of their
operations and cash flows for the periods then ended (including with respect to
the fresh-start accounting adjustments made to the first three fiscal quarters
of 2003).
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(b) As of the Effective Date, except as disclosed in the financial
statements referred to above or the notes thereto or on SCHEDULE 3.05, none of
the Borrower or its Subsidiaries has any material Indebtedness, contingent
liabilities, long-term commitments or unrealized losses.
SECTION 3.06. NO MATERIAL ADVERSE EFFECT. Since January 3, 2004, no
event or circumstance has occurred that has had, or could reasonably be expected
to have, a Material Adverse Effect.
SECTION 3.07. LITIGATION. There is no pending or, to the knowledge of
the Loan Parties, threatened litigation, action or proceeding affecting the
Borrower or any of its Subsidiaries, or any of their respective operations,
properties, businesses, assets or prospects, or the ability of the parties to
consummate the transactions contemplated hereby, which, in the case of the
Borrower and its Subsidiaries, would reasonably be expected to have a Material
Adverse Effect or which purports to affect the legality, validity or
enforceability of this Agreement or any other Loan Document or the transactions
contemplated hereby or thereby.
SECTION 3.08. COMPLIANCE WITH LAWS AND AGREEMENTS. None of the Loan
Parties has violated, is in violation of or has been given written notice of any
violation of any laws (other than Environmental Laws, which are the subject of
Section 3.13), regulations and orders of any Governmental Authority applicable
to it or its property and all indentures, agreements and other instruments
binding upon it or its property, except for any violations which do not have a
Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.
SECTION 3.09. SUBSIDIARIES. SCHEDULE 3.09 sets forth the name of, and
the direct or indirect ownership interest of the Borrower in, each Subsidiary of
the Borrower and identifies each Subsidiary that is a Loan Party, in each case
as of the Effective Date.
SECTION 3.10. OWNERSHIP OF PROPERTIES. (a) Each of the Borrower and
its Subsidiaries has good and marketable title to (or other similar title in
jurisdictions outside the United States of America), or valid leasehold
interests in, or easements or other limited property interests in, or is
licensed to use, all its material properties and assets (including all Mortgaged
Properties), except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties and assets for their intended purposes and except where the failure
to have such title in the aggregate could not reasonably be expected to have a
Material Adverse Effect. All such material properties and assets are free and
clear of Liens, other than Permitted Liens.
(b) As of the Effective Date, SCHEDULE 3.10(b) contains a true and
complete list of each parcel of Real Property (i) owned by any Loan Party as of
the date hereof and describes the type of interest therein held by such Loan
Party and (ii) leased, subleased or otherwise occupied or utilized by any Loan
Party, as lessee, as of the date hereof and describes the type of interest
therein held by such Loan Party and whether such lease, sublease or other
instrument requires the consent of the landlord thereunder or other parties
thereto to the Transactions.
(c) Each of the Borrower and its Subsidiaries has complied with all
obligations under all leases to which it is a party, except where the failure to
comply would not have a Material Adverse Effect, and all such leases are in full
force and effect, except leases in respect of which the failure to be in full
force and effect could not reasonably be expected to have a Material Adverse
Effect. Each of the Borrower and its Subsidiaries enjoys peaceful and
undisturbed possession under all such leases, other than leases in respect of
which the failure to enjoy peaceful and undisturbed possession
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could not reasonably be expected to, individually or in the aggregate, have a
Material Adverse Effect.
(d) Each of the Borrower and its Subsidiaries owns, possesses, is
licensed or otherwise has the right to use, or could obtain ownership or
possession of, on terms not materially adverse to it, all patents, trademarks,
service marks, trade names, copyrights, licenses and rights with respect thereto
necessary for the present conduct of its business, without any known conflict
with the rights of others, except where such conflicts could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(e) As of the Effective Date, no Loan Party or any of its
respective Subsidiaries has received any written notice of, or has any knowledge
of, any pending or contemplated condemnation proceeding affecting any of the
Mortgaged Properties or any sale or disposition thereof in lieu of condemnation
that remains unresolved as of the Effective Date.
(f) Neither the Borrower nor any of its Subsidiaries is obligated
on the Effective Date under any right of first refusal, option or other
contractual right to sell, assign or otherwise dispose of any Mortgaged Property
or any interest therein.
SECTION 3.11. TAXES. Each of the Borrower and its Subsidiaries has
timely filed all federal and all other material income tax returns and reports
required by law to have been filed by it and has paid all material taxes and
governmental charges due, except any such taxes or charges which are being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books; PROVIDED that any such contest of taxes or charges with respect to
Collateral shall satisfy the Contested Collateral Lien Conditions.
SECTION 3.12. PENSION AND WELFARE PLANS. No ERISA Event has occurred
or is reasonably expected to occur which could reasonably be expected to have a
Material Adverse Effect or give rise to a Lien on the assets of the Borrower or
any of its Subsidiaries. The Borrower and its Subsidiaries and their ERISA
Affiliates are in compliance in all respects with the presently applicable
provisions of ERISA and the Code with respect to each Plan except for failures
to so comply which could not reasonably be expected to have a Material Adverse
Effect. No condition exists or event or transaction has occurred with respect to
any Plan which reasonably might result in the incurrence by the Borrower or any
of its Subsidiaries or any ERISA Affiliate of any liability, fine or penalty
which could reasonably be expected to have a Material Adverse Effect. Neither
the Borrower nor any of its Subsidiaries has any contingent liability with
respect to post-retirement benefits provided by the Borrower or any of its
Subsidiaries under a Welfare Plan, other than (i) liability for continuation
coverage described in Part 6 of Subtitle B of Title I of ERISA and (ii)
liabilities that, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
Except as could not reasonably be expected to have a Material Adverse
Effect, (a) each Foreign Plan has been maintained in compliance with its terms
and with the requirements of any and all applicable laws, statutes, rules,
regulations and orders and has been maintained, where required, in good standing
with applicable regulatory authorities, and (b) neither the Borrower nor any of
its Subsidiaries has incurred any obligation in connection with the termination
of or withdrawal from any Foreign Plan.
SECTION 3.13. ENVIRONMENTAL. (a) Except as set forth on SCHEDULE
3.13(a), all facilities and property owned, leased or operated by the Borrower
or any of its Subsidiaries, and all
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operations conducted thereon, are in compliance with all Environmental Laws,
except for such noncompliance that, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
(b) Except as set forth on SCHEDULE 3.13(b), there are no pending
or threatened (in writing):
(i) Environmental Claims received by the Borrower or any of its
Subsidiaries, or
(ii) written claims, complaints, notices or inquiries received by
the Borrower or any of its Subsidiaries regarding Environmental Liability,
in each case which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
(c) Except as set forth on SCHEDULE 3.13(c), there have been no
Releases of Hazardous Materials at, on, under or from any property or facility
now or, to any Loan Party's knowledge, previously owned, leased or operated by
the Borrower or any of its Subsidiaries that, individually or in the aggregate,
have had or could reasonably be expected to have a Material Adverse Effect.
(d) The Borrower and its Subsidiaries have been issued and are in
compliance with all Environmental Permits necessary for their operations,
facilities and businesses and each is in full force and effect, except for such
Environmental Permits which, if not so obtained or as to which the Borrower and
its Subsidiaries are not in compliance, or are not in effect, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(e) No property now or, to any Loan Party's knowledge previously,
owned, leased or operated by the Borrower or any of its Subsidiaries is listed
or, to any Loan Party's knowledge, proposed (with respect to owned property
only) for listing (i) on the National Priorities List pursuant to CERCLA or (ii)
on the CERCLIS or on any similar list of sites requiring investigation or
clean-up, which, in the case of this clause (ii) only, singly or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
(f) There are no underground storage tanks, active or abandoned,
including petroleum storage tanks, surface impoundments or disposal areas, on or
under any property now or, to any Loan Party's knowledge previously, owned or
leased by the Borrower or any of its Subsidiaries which, singly or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
(g) Neither the Borrower nor any of its Subsidiaries has
transported or arranged for the transportation of any Hazardous Material to any
location which is listed or proposed for listing on the National Priorities List
pursuant to CERCLA, on the CERCLIS or on any similar list or which is the
subject of federal, state or local enforcement actions or other investigations
which would reasonably be expected to lead to any Environmental Claim against
the Borrower or such Subsidiary which (other than in the case of a listing or
proposed listing on the National Priorities List pursuant to CERCLA), singly or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect.
(h) No liens have been recorded pursuant to any Environmental Law
with respect to any property or other assets currently owned or leased by the
Borrower or its Subsidiaries.
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(i) Neither the Borrower nor any of its Subsidiaries is currently
conducting any Remedial Action pursuant to any Environmental Law, nor has any of
the Loan Parties or any of their respective Subsidiaries assumed by contract,
agreement or operation of law any obligation under Environmental Law, the cost
of which, singly or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(j) There are no polychlorinated biphenyls or friable asbestos
present at any property or facility owned, leased or operated by the Borrower or
any of its Subsidiaries, which, singly or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
SECTION 3.14. REGULATIONS U AND X. The Loans, the use of the proceeds
thereof, this Agreement and the transactions contemplated hereby will not result
in a violation of any provision of Regulation U or Regulation X.
SECTION 3.15. DISCLOSURE; ACCURACY OF INFORMATION; PRO FORMA BALANCE
SHEETS AND PROJECTED FINANCIAL STATEMENTS. (a) The Loan Parties have disclosed
to the Lenders all agreements, instruments and corporate or other restrictions
to which they or any of their Subsidiaries is subject, and all other matters
known to any of them that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. Neither this Agreement nor any other
document, certificate or statement furnished to the Administrative Agent or any
Lender by or on behalf of any Loan Party in connection herewith (including,
without limitation, the Information Memorandum and the Projected Financial
Statements) contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements contained herein and
therein not misleading, in light of the circumstances under which they were
made; PROVIDED that to the extent this or any such document, certificate or
statement (including without limitation the Information Memorandum and the
Projected Financial Statements) was based upon or constitutes a forecast or
projection, the Loan Parties represent only that they acted in good faith and
utilized assumptions believed by management to be reasonable at the time made.
The Administrative Agent and the Lenders recognize, however, that forecasts and
projections as to future events are not to be viewed as representations with
respect to future performance and that the actual results during the period or
periods covered by the forecasts or projections probably will differ from the
projected results and that the difference may be material.
(b) The Borrower shall have furnished to the Lenders the pro forma
consolidated balance sheet as of January 3, 2004, prepared giving effect to the
Transactions as if the Transactions had occurred on such date. Such pro forma
consolidated balance sheet (i) was prepared in good faith based on the same
assumptions used to prepare the pro forma financial statements included in the
Information Memorandum, (ii) accurately reflects in all material respects all
adjustments necessary to give effect to the Transactions and (iii) presents
fairly in all material respects the pro forma financial position of the Borrower
and its consolidated Subsidiaries as of January 3, 2004.
(c) The Borrower shall have furnished to the Lenders pro forma
consolidated income statement projections for the Borrower and its Subsidiaries,
pro forma consolidated balance sheet projections for the Borrower and its
Subsidiaries and pro forma consolidated cash flow projections for the Borrower
and its Subsidiaries through the 2011 Fiscal Year, which shall be prepared on a
quarterly basis through the 2004 Fiscal Year and annually thereafter (the
"PROJECTED FINANCIAL STATEMENTS"), which give effect to the Transactions and all
Indebtedness and Liens incurred or created in connection with the Transactions.
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SECTION 3.16. INSURANCE. As of the Effective Date, set forth on
SCHEDULE 3.16 is a summary of all insurance policies maintained by the Borrower
and each of its Subsidiaries with financially sound and responsible insurance
companies (a) with respect to its properties material to the business of the
Borrower and its Subsidiaries against such casualties and contingencies and of
such types and in such amounts as are customary in the case of similar
businesses operating in the same or similar locations, and (b) required to be
maintained pursuant to the Security Documents.
SECTION 3.17. LABOR MATTERS. Except as could not reasonably be
expected to have a Material Adverse Effect, (a) there are no strikes, lockouts
or slowdowns against the Borrower or any Subsidiary pending or, to the knowledge
of any Loan Party, threatened; (b) the hours worked by and payments made to
employees of the Borrower and its Subsidiaries have not been in violation of the
Fair Labor Standards Act or any other applicable Federal, state, local or
foreign law dealing with such matters; and (c) all payments due from the
Borrower or any Subsidiary, or for which any claim may be made against the
Borrower or any Subsidiary, on account of wages and employee health and welfare
insurance and other benefits, have been paid or accrued as a liability on the
books of the Borrower or such Subsidiary.
SECTION 3.18. SOLVENCY. Immediately following the making of each Loan
and after giving effect to the application of the proceeds of such Loans, (a)
the fair value of the assets of the Borrower, individually, and the Loan
Parties, taken as a whole, at a fair valuation, will exceed its or their debts
and liabilities, subordinated, contingent or otherwise; (b) the present fair
saleable value of the property of the Borrower, individually, and the Loan
Parties, taken as a whole, will be greater than the amount that will be required
to pay the probable liability of its or their debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) the Borrower, individually, and the Loan
Parties, taken as a whole, will be able to pay its or their debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) each Loan Party will not have
unreasonably small capital with which to conduct the business in which it is
engaged as such business is now conducted and is proposed to be conducted.
SECTION 3.19. SECURITIES. The Equity Interests of each Subsidiary
held, directly or indirectly, by the Borrower are owned, directly or indirectly,
by the Borrower free and clear of all Liens other than Liens permitted by
Section 6.02 (i), (v) or (x). There are not, as of the Effective Date, any
existing options, warrants, calls, subscriptions, convertible or exchangeable
securities, rights, agreements, commitments or arrangements for any Person to
acquire any common stock of the Borrower or its Subsidiaries or any other
securities convertible into, exchangeable for or evidencing the right to
subscribe for any such common stock, except as set forth on SCHEDULE 3.19.
SECTION 3.20. INDEBTEDNESS OUTSTANDING.
(a) Set forth on SCHEDULE 3.20(a) hereto is a list and description
of all Indebtedness of the Loan Parties and their respective Subsidiaries that
will be repaid, defeased, transferred or otherwise terminated on or immediately
prior to the Effective Date (such Indebtedness, "INDEBTEDNESS TO BE PAID").
(b) Set forth on SCHEDULE 3.20(b) hereto is a list and description
of all Liens of the Loan Parties and their respective Subsidiaries that will be
repaid, defeased, transferred or otherwise terminated on or immediately prior to
the Effective Date.
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SECTION 3.21. SECURITY DOCUMENTS. (a) The Pledge Agreement is
effective to create in favor of the Collateral Agents for their benefit and the
benefit of the Secured Parties, legal, valid and enforceable security interests
in the Collateral (as defined in the Pledge Agreement) and, when such Collateral
is delivered to the Collateral Agent, the Pledge Agreement shall constitute
fully perfected Liens on, and security interests in, all right, title and
interest of the pledgor thereunder in such Collateral to the extent such Liens
and security interests can be perfected by possession.
(b) (i) The Security Agreement and each Non-U.S. Pledge Agreement
is effective to create in favor of the Collateral Agents, for their benefit and
the benefit of the Secured Parties, legal, valid and enforceable security
interests in the Collateral (as defined in the Security Agreement) and (ii) when
(x) financing statements in appropriate form are filed in the offices specified
on SCHEDULE 7 to the Perfection Certificate and (y) upon the taking of
possession or control by the Collateral Agent of any such Collateral in which a
security interest may be perfected only by possession or control (which
possession or control shall be given to the Collateral Agent to the extent
possession or control by the Collateral Agent is required by the Security
Agreement), the Security Agreement shall constitute fully perfected Liens on,
and security interests in, all right, title and interest of the grantors
thereunder in such Collateral to the extent such Liens and security interests
can be perfected by the filing of a financing statement pursuant to the UCC or
by possession or control by the Collateral Agent, in each case prior and
superior in right to any other Person, other than with respect to Permitted
Liens.
(c) When the filings in clause (b)(ii)(x) above are made and when
the Security Agreement (or a summary thereof) is filed in the United States
Patent and Trademark Office and the United States Copyright Office, the Security
Agreement shall constitute fully perfected Liens on, and security interests in,
all right, title and interest of the Loan Parties in the Intellectual Property
(as defined in the Security Agreement) in which a security interest may be
perfected by filing, recording or registering a security agreement, financing
statement or analogous document in the United States Patent and Trademark Office
or the United States Copyright Office, as applicable (it being understood that
subsequent recordings in the United States Patent and Trademark Office and the
United States Copyright Office may be necessary to perfect Liens on registered
trademarks, trademark applications and copyrights acquired by the Loan Parties
after the Effective Date), in each case prior and superior in right to any other
Person other than with respect to Permitted Liens.
(d) Each Mortgage executed and delivered to the First Lien
Collateral Agent to secure the First Lien Obligations as of the Effective Date
is, or, to the extent any Mortgage is duly executed and delivered thereafter by
the relevant Loan Party, will be, effective to create, subject to the exceptions
listed in each title insurance policy covering each such Mortgage, in favor of
the First Lien Collateral Agent, for its benefit and the benefit of the First
Lien Secured Parties, legal, valid and enforceable Liens on and security
interests in all of the Loan Parties' right, title and interest in and to the
Mortgaged Properties thereunder and the proceeds thereof, and when such
Mortgages are filed in the offices specified on SCHEDULE 3.21(d), such Mortgages
shall constitute Liens on, and security interests in, all right, title and
interest of the Loan Parties in such Mortgaged Properties and the proceeds
thereof, in each case prior and superior in right to any other Person, other
than with respect to the rights of Persons under the exceptions listed in each
title insurance policy covering each such Mortgage.
(e) Each Mortgage executed and delivered to the Second Lien
Collateral Agent to secure the Second Lien Obligations as of the Effective Date
is, or, to the extent any Mortgage is duly executed and delivered thereafter by
the relevant Loan Party, will be, effective to create, subject to the
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exceptions listed in each title insurance policy covering each such Mortgage, in
favor of the Second Lien Collateral Agent, for its benefit and the benefit of
the Second Lien Secured Parties, legal, valid and enforceable Liens on and
security interests in all of the Loan Parties' right, title and interest in and
to the Mortgaged Properties thereunder and the proceeds thereof, and when such
Mortgages are filed in the offices specified on SCHEDULE 3.21(d), such Mortgages
shall constitute Liens on, and security interests in, all right, title and
interest of the Loan Parties in such Mortgaged Properties and the proceeds
thereof, in each case prior and superior in right to any other Person, other
than with respect to the rights of Persons under the exceptions listed in each
title insurance policy covering each such Mortgage.
SECTION 3.22. ANTI-TERRORISM LAWS. (a) None of the Loan Parties or,
to the knowledge of any of the Loan Parties, any of their Affiliates is in
violation of any laws relating to terrorism or money laundering ("ANTI-TERRORISM
LAWS"), including Executive Order No. 13224 on Terrorist Financing, effective
September 24, 2001 (the "EXECUTIVE ORDER"), and the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, Public Law 107-56.
(b) No Loan Party or, to the knowledge of any of the Loan Parties,
any of their Affiliates or their respective brokers or other agents acting or
benefiting in any capacity in connection with the Loans is any of the following:
(i) a Person or entity that is listed in the annex to, or is
otherwise subject to the provisions of, the Executive Order;
(ii) a Person or entity owned or controlled by, or acting for or on
behalf of, any Person or entity that is listed in the annex to, or is
otherwise subject to the provisions of, the Executive Order;
(iii) a Person or entity with which any Lender is prohibited from
dealing or otherwise engaging in any transaction by any Anti-Terrorism Law;
(iv) a Person or entity that commits, threatens or conspires to
commit or supports "terrorism" as defined in the Executive Order; or
(v) a Person or entity that is named as a "specially designated
national and blocked person" on the most current list published by the U.S.
Treasury Department Office of Foreign Assets Control at its official
website or any replacement website or other replacement official
publication of such list.
(c) No Loan Party or, to the knowledge of any Loan Party, any of
its brokers or other agents acting in any capacity in connection with the Loans
(i) conducts any business or engages in making or receiving any contribution of
funds, goods or services to or for the benefit of any Person described in clause
(b) above, (ii) deals in, or otherwise engages in any transaction relating to,
any property or interests in property blocked pursuant to the Executive Order,
or (iii) engages in or conspires to engage in any transaction that evades or
avoids, or has the purpose of evading or avoiding, or attempts to violate, any
of the prohibitions set forth in any Anti-Terrorism Law.
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ARTICLE IV
CONDITIONS
SECTION 4.01. EFFECTIVE DATE. The obligations of the Lenders to make
Loans, and the obligation of each Issuing Bank to issue Letters of Credit, in
each case, on the Effective Date are subject, at the time of the making of such
Loans or the issuance of such Letters of Credit, to satisfaction or waiver of
the following conditions on or prior to the Effective Date (except as provided
in Section 5.19):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
(b) The Administrative Agent shall have received (i) counterparts
of the Guarantee Agreement signed on behalf of each Domestic Subsidiary and
(ii) counterparts of the Indemnity, Subrogation and Contribution Agreement
signed on behalf of each Loan Party.
(c) The Administrative Agent shall have received from the Borrower
a Closing Certificate, dated the Effective Date and signed on behalf of the
Borrower by a Financial Officer of the Borrower.
(d) The Administrative Agent shall have received such documents
and certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of each
Loan Party, the authorization of the Transactions and any other legal
matters relating to the Loan Parties, the Loan Documents or the
Transactions, all in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.
(e) The Administrative Agent shall have received from ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇ LLP, counsel to the Loan Parties, an opinion addressed to each Agent
and the Lenders and dated the Effective Date substantially in form and
substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received favorable written
opinions of (i) local counsel in each of the jurisdictions (in each case
unless, and to the extent otherwise agreed by the Administrative Agent)
referred to in Schedule 4.01(f), in each case reasonably satisfactory to
the Administrative Agent, which opinions shall (x) be addressed to each
Agent and the Lenders and be dated the Effective Date, (y) cover various
matters regarding the perfection and priority of the security interests
granted in respect of the Equity Interests of Persons organized in such
Non-U.S. Jurisdiction, and such other maters incident to the transactions
contemplated herein as the Agents may reasonably request and (z) be in
form, scope and substance reasonably satisfactory to the Agents, and (ii)
local counsel to the Loan Parties as specified in SCHEDULE 4.01(f) in the
form of EXHIBIT L, which opinions (x) shall be addressed to each Agent and
each of the Lenders and be dated the Effective Date, (y) shall cover the
enforceability of the respective Mortgage and perfection of the Liens and
security interests granted pursuant to the relevant Security Documents and
such other matters incident to the
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transactions contemplated herein as the Agents may reasonably request and
(z) shall be in form and substance reasonably satisfactory to the Agents.
(g) All documents executed or submitted in connection with this
Agreement, the borrowings hereunder and the other Loan Documents shall be
reasonably satisfactory to the Lenders.
(h) The exchange (the "EXCHANGE") of not less than $41.3 million
in principal amount of the Convertible Notes for Series A Preferred Stock
of the Borrower shall have been consummated as of the Effective Date
substantially on the terms and conditions and documentation consistent with
and as set forth in the offering memorandum dated December 30, 2003 without
amendment, modification or waiver thereof which is adverse to the Lenders
(as reasonably determined by the Lead Arranger) without the prior consent
of the Lenders.
(i) The Lenders shall have received the audited consolidated
balance sheets and related statements of income, stockholders' equity and
cash flows of the Borrower described in Section 3.05, which audited
financial statements (and the notes thereto) shall be in form and scope
reasonably satisfactory to the Lenders.
(j) All corporate and legal proceedings and all instruments and
agreements in connection with the transactions contemplated by this
Agreement and the other Loan Documents to occur on or prior to the
Effective Date shall be in form and substance reasonably satisfactory to
the Administrative Agent, and the Administrative Agent shall have received
all information and copies of all documents and papers, including records
of corporate proceedings, governmental approvals, good standing
certificates and bring down telegrams or facsimiles, if any, which the
Administrative Agent reasonably may have requested in connection therewith,
such documents and papers where appropriate to be certified by proper
corporate or governmental authorities.
(k) The Requisite Lenders shall be satisfied that the
representations and warranties set forth in Article III hereof and in the
other Loan Documents that are made as of the Effective Date shall be true
and correct (or true and correct in all material respects if not otherwise
qualified by materiality or by a Material Adverse Effect) with the same
effect as if then made.
(l) The Requisite Lenders shall be satisfied that at the time of
and immediately after the Borrowings and issuances of Letters of Credit, no
Default or Event of Default shall have occurred and be continuing.
(m) The Lenders shall have received a certificate of the chief
financial officer of the Borrower in the form of Exhibit M and reasonably
satisfactory to the Administrative Agent, together with such other evidence
reasonably requested by the Lenders, confirming the solvency of each of the
Loan Parties on a consolidated basis after giving effect to the
Transactions.
(n) The Lenders shall have received (i) the pro forma consolidated
balance sheet referred to in Section 3.15(b), together with the certificate
of the chief financial officer of Borrower certifying clauses (i)-(iii)
thereof and the Lenders shall be reasonably satisfied that such balance
sheet is not materially inconsistent with the forecasts previously provided
to the Lenders
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and (ii) the Projected Financial Statements, which shall not be materially
inconsistent with the projections previously provided to the Lead Arranger.
(o) The Administrative Agent shall have received reasonably
satisfactory evidence that all loans and letters of credit outstanding
under, and all other amounts due in respect of, the Indebtedness to Be Paid
shall have been repaid in full (or satisfactory arrangements made for such
repayment and letters of credit) and the commitments thereunder shall have
been permanently terminated, and all related guarantees and security
interests shall have been terminated (or provisions reasonably satisfactory
to the Administrative Agent shall have been made for their termination).
(p) After giving effect to the Transactions, none of the Borrower
or its respective Subsidiaries shall have outstanding any Indebtedness
other than (i) the Loans and other extensions of credit under this
Agreement, (ii) the Convertible Notes which have not been exchanged in the
Exchange and (iii) Indebtedness permitted under Section 6.01 (other than
clauses (vi), (vii), (xiii), (xiv) and (xv) thereof).
(q) All requisite material governmental authorities and third
parties shall have approved or consented to the Transactions to the extent
required, all applicable appeal periods shall have expired and there shall
be no judicial or regulatory action by a governmental agency, actual or
threatened, that could reasonably be expected to restrain, prevent or
impose materially burdensome conditions on the Transactions or the other
transactions contemplated hereby.
(r) The Lenders shall be reasonably satisfied that no litigation
or administrative proceeding or development in any litigation or
administrative proceeding by any entity (private or governmental) shall be
pending or, to the knowledge of the Borrower, threatened that could
reasonably be expected to have, a Material Adverse Effect or a material
adverse effect on the ability of the parties to consummate the
Transactions.
(s) The Administrative Agent shall have received all fees payable
to the Administrative Agent or any Lender on or prior to the Effective Date
under the Fee Letter and all other amounts due and payable pursuant to the
Loan Documents on or prior to the Effective Date, including reimbursement
or payment of all reasonable and invoiced out-of-pocket expenses (including
reasonable fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
and domestic and foreign local counsel) required to be reimbursed or paid
by the Borrower hereunder or under any other Loan Document.
(t) The Collateral Agents shall have received counterparts of the
Pledge Agreement signed by each Loan Party and covering pledges of 100% of
the Equity Interests held by the Loan Parties in all of their Domestic
Subsidiaries and 65% of the Equity Interests of their "first tier" Non-U.S.
Subsidiaries (other than any Equity Interests of such Subsidiaries pledged
pursuant to Non-U.S. Pledge Agreements) of the Borrower or any Domestic
Subsidiary and counterparts of the Non-U.S. Pledge Agreements covering
pledges of 65% of the Equity Interests of the "first tier" Non-U.S.
Subsidiaries of the Borrower, and the Collateral Agent shall have received
all promissory notes (the "INTERCOMPANY NOTES") evidencing all intercompany
Indebtedness owed to any Loan Party by the Borrower or any Subsidiary as of
the Effective Date and stock powers and instruments of transfer, endorsed
in blank, with respect to the Equity Interests of the Borrower's Domestic
Subsidiaries and any such promissory notes.
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(u) The Collateral Agents shall have received counterparts of the
Security Agreement and Pledge Agreement signed by each Loan Party, in each
case, together with the following in form and substance reasonably
satisfactory to the Collateral Agent:
(A) certificates representing all Pledged Securities,
together with executed and undated stock powers and/or assignments in
blank;
(B) a favorable written opinion of foreign counsel in the
jurisdiction of organization of each "first-tier" Non-U.S. Subsidiary
(except for PGI Nonwovens Mauritius Ltd.) as shall be reasonably
acceptable to the Collateral Agent, (a) addressed to the Collateral
Agents and the Lenders and (b) covering such matters relating to the
Security Documents and the Loan Documents as the Collateral Agent
shall reasonably request including, without limitation, the perfection
of the security interest created in the Pledged Securities of such
Non-U.S. Subsidiaries;
(C) instruments representing all intercompany Indebtedness
payable to any Loan Party, together with executed and undated
instruments of assignment endorsed in blank;
(D) certificates of insurance required under this
Agreement;
(E) appropriate financing statements or comparable
documents authorized by (and executed by, to the extent applicable)
the appropriate entities in proper form for filing under the
provisions of the UCC and applicable domestic or local laws, rules or
regulations in each of the offices where such filing is necessary or
appropriate, in the Collateral Agent's reasonable discretion, to grant
to the Collateral Agents perfected Liens on such Collateral, superior
and prior to the rights of all third persons other than the holders of
Permitted Liens;
(F) UCC, judgment and tax lien, bankruptcy and pending
lawsuit search reports listing all effective financing statements or
comparable documents which name any applicable Loan Party as debtor
and which are filed in those jurisdictions in which, any Loan Party is
organized, any of such Collateral is located and the jurisdictions in
which any applicable Loan Party's principal place of business is
located in the United States, together with copies of such existing
financing statements, none of which shall encumber such Collateral
covered or intended or purported to be covered by the Security
Documents other than Permitted Liens;
(G) evidence of the preparation for recording or filing, as
applicable, of all recordings and filings of each such Security
Document, including, without limitation, with the United States Patent
and Trademark Office and the United States Copyright Office, and
delivery and recordation, if necessary, of such other security and
other documents, including, without limitation, UCC-3 termination
statements with respect to UCC filings that do not constitute
Permitted Liens, as may be necessary or, in the reasonable opinion of
the Collateral Agent, desirable to perfect the Liens created, or
purported or intended to be created, by such Security Documents;
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(H) with respect to leased Real Property which is not
subject to a leasehold Mortgage as of the Effective Date, if any
Pledged Collateral (as defined in the Security Agreement) of any Loan
Party or its Subsidiaries is maintained on such premises, the Borrower
shall use its commercially reasonable efforts to deliver a Landlord
Access Agreement with respect thereto;
(I) evidence that all other actions reasonably necessary
or, in the opinion of the Collateral Agent, desirable to perfect the
security interest created by the Security Documents have been taken;
and
(J) a completed Perfection Certificate dated the Effective
Date and signed by an executive officer or Financial Officer of the
Borrower, together with all attachments contemplated thereby,
including the results of a search of the UCC (or equivalent) filings
made with respect to the Loan Parties in the jurisdictions
contemplated by the Perfection Certificate and copies of the financing
statements (or similar documents) disclosed by such search and
evidence reasonably satisfactory to the Administrative Agent that the
Liens indicated by such financing statements (or similar documents)
are Permitted Liens or have been released.
(v) The Collateral Agents shall have received the following
documents and instruments:
(A) with respect to each Mortgaged Property indicated on
SCHEDULE 4.01(w)(A) hereto, two Mortgages encumbering each of the
same, one in favor of the First Lien Collateral Agent, for its benefit
and the benefit of the First Lien Secured Parties, and the other in
favor of the Second Lien Collateral Agent for the benefit of the
Second Lien Secured Parties, duly executed and acknowledged by the
applicable Loan Party, and otherwise in form for recording in the
recording office where each such Mortgaged Property is situated,
together with such certificates, affidavits, questionnaires or returns
as shall be required in connection with the recording or filing
thereof to create, respectively, (i) a first priority lien under
applicable law, in favor of the First Lien Collateral Agent for the
benefit of the First Lien Secured Parties and (ii) a lien, under
applicable law, subject and subordinate to the lien granted to the
First Lien Collateral Agent for the benefit of the First Lien Secured
Parties, in favor of the Second Lien Collateral Agent for the benefit
of the Second Lien Secured Parties and such UCC-1 financing statements
and other similar statements as are contemplated by the counsel
opinions described in Section 4.01(f) in respect of such Mortgages,
all of which shall be in form and substance reasonably satisfactory to
the applicable Collateral Agent, and any other instruments necessary
to grant a mortgage lien under the laws of any applicable
jurisdiction, which Mortgages and financing statements and other
instruments shall when recorded be effective to create Liens on such
Mortgaged Property subject to no other Liens except the Prior Liens;
(B) with respect to each Mortgaged Property, such consents,
approvals, amendments, supplements, estoppels, tenant subordination
agreements or other instruments, in form acceptable to the Collateral
Agents, as necessary or required to consummate the transactions
contemplated hereby or as shall reasonably be deemed necessary by the
Collateral Agents in order for the owner or holder of the fee or
leasehold
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interest constituting such Mortgaged Property to grant the Liens
contemplated by the Mortgages with respect to such Mortgaged Property;
(C) with respect to each first priority Mortgage granted in
favor of the First Lien Collateral Agent and each subordinate Mortgage
granted in favor of the Second Lien Collateral Agent, a policy of
title insurance (or marked title commitment having the effect of a
title insurance policy) insuring the Liens of such Mortgages,
respectively, as (i) valid first mortgage Liens on the real property
and fixtures described therein in favor of the First Lien Collateral
Agent for the benefit of the First Lien Secured Parties and (ii) a
valid mortgage lien on the Mortgaged Real Property, subject and
subordinate to the lien granted to the First Lien Collateral Agent for
the benefit of the First Lien Secured Parties, in favor of the Second
Lien Collateral Agent for the benefit of the Second Lien Secured
Parties in an amount, in each case, equal to not less than in an
amount not less than the amount set forth on SCHEDULE 4.01(w)(C) (115%
of the fair market value thereof), which policies (or marked
commitments having the effect of title insurance policies) shall (w)
be issued by the Title Company, (x) include such reinsurance
arrangements (with provisions for direct access) as shall be
reasonably acceptable to the Collateral Agents, (y) contain a "tie-in"
or "cluster" endorsement (if available under applicable law) (I.E.,
policies which insure against losses regardless of location or
allocated value of the insured property up to a stated maximum
coverage amount) and have been supplemented by such endorsements (or
where such endorsements are not available, opinions of special
counsel, architects or other professionals reasonably acceptable to
the Collateral Agents to the extent that such opinions can be obtained
at a cost which is reasonable with respect to the value of the real
property subject to such Mortgage) as shall be reasonably requested by
the Collateral Agents (including, without limitation, endorsements, to
the extent available in each jurisdiction at commercially reasonably
rates, on matters relating to usury, first loss, last dollar, zoning,
contiguity, variable rate, revolving credit, doing business, access,
survey, address, subdivision, separate tax lot, lender non-imputation
and so-called comprehensive coverage over covenants and restrictions)
and (z) contain only such exceptions to title as shall be agreed to by
the Collateral Agents on or prior to the Effective Date with respect
to such Mortgaged Property;
(D) with respect to each Mortgaged Property, policies or
certificates of insurance as required hereby or by the Mortgage
relating thereto, which policies or certificates shall comply with the
insurance requirements contained herein or in such Mortgage;
(E) with respect to each Mortgaged Property, a Survey in
form and substance acceptable to the Collateral Agents;
(F) with respect to each Mortgaged Property, such
affidavits, certificates, information (including financial data) and
instruments of indemnification (including, without limitation, a
so-called "gap" indemnification) as shall be required to induce the
Title Company to issue the policy or policies (or marked commitment
having the effect of a title insurance policy) and endorsements
contemplated in subparagraph (C) above;
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(G) evidence acceptable to the Collateral Agents of payment
by the appropriate Loan Party or Subsidiary thereof of all applicable
title insurance premiums, search and examination charges, survey costs
and related charges, mortgage recording taxes, fees, charges, costs
and expenses required for the recording of the Mortgages and issuance
of the title insurance policies referred to in subparagraph (C) above;
and
(H) with respect to each Real Property or Mortgaged
Property, copies of all leases or other agreements relating to
possessory interests to which any Loan Party or Subsidiary thereof is
a party. To the extent any of the foregoing in which any Loan Party is
a landlord or sublandlord affect any Mortgaged Property, such
agreement shall be subordinate to the Mortgage to be recorded against
such Mortgaged Property and otherwise acceptable to the Collateral
Agent.
(w) The Administrative Agent shall have received subordination
agreements in form and substance reasonably satisfactory to it covering all
intercompany notes or other obligations owed by a Loan Party to a
Subsidiary of the Borrower that is not a Loan Party.
(x) The Collateral Agents shall have received a counterpart of the
Collateral Sharing Agreement signed by the Borrower and the Subsidiaries of
the Borrower listed thereon.
(y) The Collateral Agent shall have received evidence and be
reasonably satisfied that the insurance required by Section 5.04 and the
Security Documents is in effect in form and substance satisfactory to the
Collateral Agent.
SECTION 4.02. CONDITIONS TO EACH CREDIT EVENT. The agreement of each
Lender to make any Loan and of the Issuing Bank to issue, amend, renew or extend
any Letter of Credit (such event being called a "CREDIT EVENT") (excluding
continuations and conversions of Loans) requested to be made by it on any date
is subject to the satisfaction of the following conditions:
(a) The Administrative Agent shall have received a notice of such
Credit Event as required by Section 2.02 or 2.05, as applicable.
(b) The representations and warranties set forth in Article III
hereof and in the other Loan Documents shall be true and correct (or true
and correct in all material respects if not otherwise qualified by
materiality or by a Material Adverse Effect) with the same effect as if
then made (unless expressly stated to relate to an earlier date, in which
case such representations and warranties shall be true and correct as of
such earlier date).
(c) At the time of and immediately after such Credit Event, no
Default or Event of Default shall have occurred and be continuing.
Each Credit Event shall be deemed to constitute a representation and warranty by
the Borrower on the date of such Credit Event, as to the matters specified in
paragraphs (b) and (c) of this Section 4.02.
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ARTICLE V
AFFIRMATIVE COVENANTS
Each Loan Party hereby covenants and agrees with the Lenders that on
or after the Effective Date and until the Commitments have expired or terminated
and the principal of and interest on each Loan and all fees and other amounts
due and payable hereunder or under any other Loan Document have been paid in
full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed:
SECTION 5.01. FINANCIAL INFORMATION, REPORTS, NOTICES, ETC. The
Borrower will furnish, or will cause to be furnished, to each Lender and the
Administrative Agent copies of the following financial statements, reports,
notices and information:
(a) as soon as available and in any event within 45 days (or, if
SEC Form 12b-25 is filed in respect of such Fiscal Quarter, 50 days or such
shorter period for the filing of the Borrower's Form 10-Q as may be
required by the SEC) after the end of each of the first three Fiscal
Quarters of each Fiscal Year of the Borrower, a consolidated balance sheet
of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter
and consolidated statements of earnings, stockholders' equity and cash flow
of the Borrower and its Subsidiaries for such Fiscal Quarter and for the
same period in the prior Fiscal Year and for the period commencing at the
end of the previous Fiscal Year and ending with the end of such Fiscal
Quarter, certified by a Financial Officer of the Borrower, it being
understood and agreed that the delivery of the Borrower's Form 10-Q (as
filed with the SEC), if certified as required in this clause (a), shall
satisfy the requirements set forth in this clause, together with a
certificate from a Financial Officer of the Borrower (a "COMPLIANCE
CERTIFICATE") containing a computation in reasonable detail of, and showing
compliance with, each of the financial ratios and restrictions contained in
the Financial Covenants and to the effect that, in making the examination
necessary for the signing of such certificate, such Financial Officer has
not become aware of any Default or Event of Default that has occurred and
is continuing, or, if such Financial Officer has become aware of such
Default or Event of Default, describing such Default or Event of Default
and the steps, if any, being taken to cure it;
(b) as soon as available and in any event within 90 days (or, if
SEC Form 12b-25 is filed in respect of such Fiscal Year, 105 days or such
shorter period as may be required for the filing of the Borrower's Form
10-K by the SEC) after the end of each Fiscal Year of the Borrower, a copy
of the annual audit report for such Fiscal Year for the Guarantor and its
Borrower, including therein a consolidated balance sheet of the Borrower
and its Subsidiaries as of the end of such Fiscal Year and consolidated
statements of earnings, stockholders' equity and cash flow of the Borrower
and its Subsidiaries for such Fiscal Year, in each case certified (without
any Impermissible Qualification) in a manner reasonably acceptable to the
Administrative Agent by Ernst & Young LLP or other independent public
accountants reasonably acceptable to the Administrative Agent (it being
understood and agreed that the delivery of the Borrower's Form 10-K (as
filed with the SEC), if certified as required in this clause (b), shall
satisfy such delivery requirement in this clause), together with a
Compliance Certificate and a certificate of the accounting firm that
reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such financial
statements of any Event of Default under any of the Financial Covenants
(which certificate may be limited to the extent required by accounting
rules or guidelines);
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(c) no later than February 28 of each Fiscal Year of the Borrower,
a detailed consolidated budget by Fiscal Quarter for such Fiscal Year
(including a projected consolidated balance sheet and related statements of
projected operations and cash flow as of the end of and for each Fiscal
Quarter during such Fiscal Year) and the next two succeeding Fiscal Years
and, promptly when available, any significant revisions of such budgets;
(d) promptly upon receipt thereof, copies of all reports submitted
to the Borrower by independent certified public accountants in connection
with each annual, interim or special audit of the books of the Borrower or
any of its Subsidiaries made by such accountants, including any management
letters submitted by such accountants to management in connection with
their annual audit;
(e) as soon as possible and in any event within five Business Days
after becoming aware of the occurrence of any Default or Event of Default,
a statement of a Financial Officer of the Borrower setting forth details of
such Default or Event of Default and the action which the Borrower has
taken and proposes to take with respect thereto;
(f) as soon as possible and in any event within five Business Days
after (i) the occurrence of any adverse development with respect to any
litigation, action or proceeding that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect or (ii) the
commencement of any litigation, action or proceeding that could reasonably
be expected to have a Material Adverse Effect or that purports to affect
the legality, validity or enforceability of this Agreement or any other
Loan Document or the transactions contemplated hereby or thereby, notice
thereof and copies of all documentation relating thereto;
(g) promptly after the sending or filing thereof, copies of all
reports which the Borrower sends to any of its security holders (in their
capacity as such), and all reports, registration statements (other than on
Form S-8 or any successor form) or other materials (including affidavits
with respect to reports) which the Borrower or any of its Subsidiaries
files with the SEC or any national securities exchange;
(h) promptly upon becoming aware of the taking of any specific
actions by the Borrower or any other Person to terminate any Pension Plan
(other than a termination pursuant to Section 4041(b) of ERISA which can be
completed without the Borrower or any Subsidiary having to provide more
than $5.0 million in addition to the normal contribution required for the
plan year in which termination occurs to make such Pension Plan
sufficient), or the occurrence of an ERISA Event which could result in a
Lien on the assets of any Loan Party or a Subsidiary or in the incurrence
by a Loan Party of any liability, fine or penalty which could reasonably be
expected to have a Material Adverse Effect, or any increase in the
contingent liability of a Loan Party with respect to any post-retirement
Welfare Plan benefit if the increase in such contingent liability which
could reasonably be expected to have a Material Adverse Effect, notice
thereof and copies of all documentation relating thereto;
(i) upon request by the Administrative Agent, copies of: (i) each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
filed by any Loan Party or ERISA Affiliate with the Internal Revenue
Service with respect to each Pension Plan; (ii) the most recent actuarial
valuation report for each Pension Plan and each Foreign Plan for which a
report is prepared; (iii) all notices received by any Loan Party or ERISA
Affiliate from a Multiemployer Plan sponsor or any governmental agency
concerning an ERISA Event; and
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(iv) such other documents or governmental reports or filings relating to
any Plan or Foreign Plan as the Administrative Agent shall reasonably
request;
(j) as soon as possible, notice of any other development that
could reasonably be expected to have a Material Adverse Effect; and
(k) such other information respecting the condition or operations,
financial or otherwise, of the Borrower or any of its Subsidiaries as any
Lender through the Administrative Agent may from time to time reasonably
request.
SECTION 5.02. COMPLIANCE WITH LAWS, ETC. The Loan Parties will, and
will cause each of their Subsidiaries to, comply in all respects with all
applicable laws, rules, regulations and orders, except where such noncompliance,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect, such compliance to include, subject to the foregoing:
(a) the maintenance and preservation of their and their
Subsidiaries' existence and their qualification as a foreign corporation or
partnership (or comparable foreign qualification, if applicable, in the
case of any other form of legal entity), and
(b) the payment, before the same become delinquent, of all taxes,
assessments and governmental charges imposed upon them or upon their
property in excess of $250,000 other than any such tax, assessment or
charge the payment of which is being contested in good faith and by proper
proceeding and for which proper reserves are being maintained in accordance
with GAAP.
SECTION 5.03. MAINTENANCE OF PROPERTIES. Each Loan Party and each of
its respective Subsidiaries will maintain, preserve, protect and keep its
material properties and assets in good repair, working order and condition, and
make necessary and proper repairs, renewals and replacements so that its
business carried on in connection therewith may be properly conducted at all
times; PROVIDED that nothing in this Section 5.03 shall prevent any Loan Party
from discontinuing the operation and maintenance of any of its properties or any
of those of its Subsidiaries if such discontinuance is, in the reasonable
commercial judgment of such Loan Party, desirable in the conduct of its or their
business and does not in the aggregate have a Material Adverse Effect.
SECTION 5.04. INSURANCE. The Loan Parties will and will cause each of
their respective Subsidiaries to maintain or cause to be maintained with
financially sound and responsible insurance companies (a) insurance with respect
to their properties material to the business of the Loan Parties and their
respective Subsidiaries against such casualties and contingencies and of such
types and in such amounts with such deductibles as is customary in the case of
similar businesses operating in the same or similar locations (including,
without limitation, (i) physical hazard insurance on an "all risk" basis, (ii)
commercial general liability against claims for bodily injury, death or property
damage covering any and all claims, (iii) explosion insurance in respect of any
boilers, machinery or similar apparatus constituting Collateral, (iv) business
interruption insurance, (v) worker's compensation insurance as may be required
by any Requirement of Law, (vi) flood insurance, if at any time the area in
which any improvements located on any Mortgaged Property is designated a "flood
hazard area" in any Flood Insurance Rate Map published by the Federal Emergency
Management Agency (or any successor agency) and otherwise comply with the
National Flood Insurance Program as set forth in the Flood Disaster Protection
Act of 1973 (as amended from time to time) and (vii) such other insurance
against risks as the Administrative Agent may from time to time reasonably
require) and (b) all insurance
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required to be maintained pursuant to the Security Documents, and will, upon
request of the Administrative Agent, furnish to each Lender at reasonable
intervals a certificate of an Authorized Officer of the Borrower setting forth
the nature and extent of all insurance maintained by the Loan Parties and their
respective Subsidiaries in accordance with this Section. Each such insurance
policy shall provide that (i) it may not be cancelled or otherwise terminated
without at least thirty (30) days' prior written notice to the Collateral Agent
(and to the extent any such policy is cancelled, modified or renewed, the
Borrower shall deliver a copy of the renewal or replacement policy (or other
evidence thereof) to the Administrative Agent and the Collateral Agent, or
insurance certificate with respect thereto, together with evidence reasonably
satisfactory to the Administrative Agent and Collateral Agent of the payment of
the premium therefor); (ii) the Collateral Agent and the Administrative Agent
are permitted to pay any premium therefor within thirty (30) days after receipt
of any notice stating that such premium has not been paid when due; (iii) all
losses thereunder shall be payable notwithstanding any act or negligence of any
Loan Party or any of its Subsidiaries or its agents or employees which otherwise
might have resulted in a forfeiture of all or a part of such insurance payments;
(iv) to the extent such insurance policy constitutes property insurance, all
losses payable thereunder in an amount in excess of $1.0 million shall be
payable to the Collateral Agents, as additional insureds and as loss payees,
pursuant to a standard non-contributory New York mortgagee endorsement and shall
be in an amount at least sufficient to prevent coinsurance liability; PROVIDED
that the Collateral Agents, as loss payee pursuant to the foregoing, shall not
agree to the adjustment of any claim without the consent of the Borrower (such
consent not to be unreasonably withheld or delayed); and (v) with respect to
liability insurance, the Collateral Agents shall be named as an additional
insureds. Notwithstanding the inclusion in each insurance policy of the
provision described in clause (ii) of the immediately preceding sentence, in the
event any Loan Party gives the Collateral Agent written notice that it does not
intend to pay any premium relating to any insurance policy when due, the
Collateral Agent shall not exercise its right to pay such premium so long as
such Loan Party delivers to the Collateral Agents a replacement insurance policy
or insurance certificate evidencing that such replacement policy or certificate
provides the same insurance coverage required under this Section 5.04 as the
policy being replaced by such Loan Party with no lapse in such coverage.
SECTION 5.05. BOOKS AND RECORDS; VISITATION RIGHTS. Each Loan Party
will, and will cause each of its respective Subsidiaries to, keep books and
records which accurately reflect its business affairs in all material respects
and material transactions and permit the Administrative Agent or its
representatives, at reasonable times and intervals and upon reasonable notice,
to visit all of its offices, to discuss its financial matters with its officers
and independent public accountant and, upon the reasonable request of the
Administrative Agent or a Lender, to examine (and, at the expense of the
Borrower, photocopy extracts from) any of its books or other corporate or
partnership records.
SECTION 5.06. ENVIRONMENTAL COVENANT. Each Loan Party will, and will
cause each of its respective Subsidiaries to:
(a) use and operate all of its facilities and properties in
compliance with all applicable Environmental Laws except for such
noncompliance which, singly or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect and handle all Hazardous
Materials in compliance with all applicable Environmental Laws, except for
any noncompliance that would not reasonably be expected to have a Material
Adverse Effect;
(b) promptly notify the Administrative Agent and provide copies of
all written inquiries, claims, complaints or notices from any Person
relating to the environmental condition of its facilities and properties or
compliance with or liability under any Environmental
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Law which could reasonably be expected to have a Material Adverse Effect,
and promptly cure and have dismissed with prejudice or contest in good
faith any actions and proceedings relating thereto;
(c) in the event of the presence of any Hazardous Material on any
Mortgaged Property which is in violation of any Environmental Law or which
could reasonably be expected to result in Environmental Liability which
violation or Environmental Liability could reasonably be expected to have a
material adverse effect on any Mortgaged Property, each applicable Loan
Party and its Subsidiaries, upon discovery thereof, shall take all
necessary steps to initiate and expeditiously complete all response,
corrective or other action to mitigate and eliminate any such adverse
effect in accordance with and to the extent required by applicable
Environmental Laws, and shall keep the Administrative Agent informed of
their actions;
(d) at the written request of the Administrative Agent or the
Requisite Lenders, which request shall specify in reasonable detail the
basis therefor, each Loan Party will provide, at such Loan Party's sole
cost and expense, an environmental site assessment report concerning any
Mortgaged Property now or hereafter owned or leased by such Loan Party or
any of its respective Subsidiaries, prepared by an environmental consulting
firm reasonably acceptable to the Administrative Agent, indicating the
presence or absence of Hazardous Materials and the potential cost of any
Remedial Action in connection with such Hazardous Materials on, at, under
or emanating from such Mortgaged Property pursuant to any applicable
Environmental Law; PROVIDED that such request may be made only if (i) there
has occurred and is continuing an Event of Default or (ii) the
Administrative Agent or the Requisite Lenders reasonably believe that the
Borrower or any such Mortgaged Property is not in compliance with
Environmental Law and such noncompliance could reasonably be expected to
have a Material Adverse Effect, or that circumstances exist that could
reasonably be expected to form the basis of an Environmental Claim against
such Loan Party or to result in Environmental Liability, in each case that
could reasonably be expected to have a Material Adverse Effect (in such
events as are listed in this subparagraph, the environmental site
assessment shall be focused upon the noncompliance or other circumstances
as applicable). If any Loan Party fails to provide the same within 90 days
after such request was made and the circumstances described in clause (i)
or (ii) still exist, the Administrative Agent may order the same, and such
Loan Party shall grant and hereby grants to the Administrative Agent and
the Requisite Lenders and their agents access to such Mortgaged Property
and specifically grants the Administrative Agent and the Requisite Lenders
an irrevocable non-exclusive license, subject to the rights of tenants, to
perform such an assessment, all at such Loan Party's sole cost and expense;
and
(e) provide such information and certifications which the
Administrative Agent may reasonably request from time to time to evidence
compliance with this Section 5.06.
SECTION 5.07. INFORMATION REGARDING COLLATERAL. (a) Each Loan Party
will furnish to the Administrative Agent and the Collateral Agents prompt
written notice of any change (i) in such Loan Party's corporate name or in any
trade name used to identify it in the conduct of its business or in the
ownership of its properties, (ii) in the location of any Loan Party's chief
executive office, its principal place of business, any office in which it
maintains books or records relating to Collateral owned by it or any office or
facility at which Collateral owned by it is located (including the establishment
of any such new office or facility), (iii) in any Loan Party's identity or
corporate structure, (iv) in any Loan Party's Federal Taxpayer Identification
Number or organizational identification number or (v) in any Loan Party's
jurisdiction of organization. Each Loan Party agrees not to effect or
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permit any change referred to in the preceding sentence unless (i) it shall have
given the Administrative Agent and the Collateral Agents thirty (30) days' prior
written notice and (ii) all filings have been made under the UCC or otherwise
that are required in order for the Collateral Agent to continue at all times
following such change to have a valid, legal and perfected security interest in
all the Collateral. Each Loan Party also agrees promptly to notify the
Administrative Agent if any material portion of the Collateral is damaged or
destroyed.
(b) Each year, at the time of delivery of annual financial
statements with respect to the preceding Fiscal Year pursuant to clause (b) of
Section 5.01, the Borrower shall deliver to the Administrative Agent a
certificate of a Financial Officer and the chief legal officer of the Borrower
(i) setting forth the information required pursuant to Sections 1, 2, 7, 8, 11,
12, 13, 14, 15, 16, 17 and 18 of the Perfection Certificate or confirming that
there has been no change in such information since the date of the Perfection
Certificate delivered on the Effective Date or the date of the most recent
certificate delivered pursuant to this Section and (ii) certifying that all UCC
financing statements (including fixture filings, as applicable) or other
appropriate filings, recordings or registrations, including all refilings,
rerecordings and reregistrations, containing a description of the Collateral
have been filed of record in each governmental, municipal or other appropriate
office in each jurisdiction identified pursuant to clause (i) above to the
extent necessary to protect and perfect the security interests under the
Security Documents for a period of not less than 18 months after the date of
such certificate (except as noted therein with respect to any continuation
statements to be filed within such period).
SECTION 5.08. EXISTENCE; CONDUCT OF BUSINESS. Each Loan Party will,
and will cause each of its respective Subsidiaries to, do or cause to be done
all things reasonably necessary to preserve, renew and keep in full force and
effect its legal existence and the rights, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its business; PROVIDED that the foregoing shall not prohibit any
merger, consolidation, liquidation or dissolution permitted under Section 6.03.
SECTION 5.09. PERFORMANCE OF OBLIGATIONS. Each Loan Party and its
respective Subsidiaries will perform all of their respective obligations under
the terms of each mortgage, indenture, security agreement, other debt instrument
and material contract by which they are bound or to which they are a party
except for such noncompliance as in the aggregate would not have a Material
Adverse Effect.
SECTION 5.10. CASUALTY AND CONDEMNATION. Each Loan Party (a) will
furnish to the Administrative Agent and the Lenders prompt written notice of any
casualty or other insured damage to any Collateral in an amount in excess of
$2.5 million or the commencement of any action or proceeding for the Taking of
any Collateral or any part thereof or interest therein under power of eminent
domain or by condemnation or similar proceeding and (b) will ensure that the Net
Proceeds of any such event (whether in the form of insurance proceeds,
condemnation awards or otherwise) are collected and applied in accordance with
the applicable provisions of this Agreement and the Security Documents.
SECTION 5.11. PLEDGE OF ADDITIONAL COLLATERAL. Within 30 days after
the acquisition of assets of the type that would have on the Effective Date
constituted Collateral under the Security Documents (the "ADDITIONAL
COLLATERAL"), each appropriate Loan Party will, and will cause its respective
Subsidiaries to, take all necessary action, including the filing of appropriate
financing statements under the provisions of the UCC, applicable domestic or
local laws, rules or regulations in each of the offices where such filing is
necessary or appropriate, or entering into or amending the Guarantee
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Agreement and the Security Documents, or in the case of the Equity Interests of
a "first tier" Non-U.S. Subsidiary, entering into a Non-U.S. Pledge Agreement
providing for the Collateral Agents to have an enforceable and perfected
security interest in 65% of the Equity Interests in such Subsidiary, to grant to
each Collateral Agent for its benefit and the benefit of the respective Secured
Parties perfected Liens in such Collateral pursuant to and to the full extent
required by the Security Documents and this Agreement (including, without
limitation, delivery of an opinion substantially in the form of EXHIBIT L and
otherwise reasonably acceptable in form and substance to the Collateral Agent
and satisfaction of the conditions set forth in subsections (v) and (w) of
Section 4.01). In the event that any Loan Party acquires or leases additional
Real Property or renews any lease of Real Property (whether or not the subject
of a leasehold Mortgage under the Security Documents) and the fair market value
of such acquired Real Property or such lease, as applicable, is in excess of
$1.0 million as determined in good faith by the Borrower, the Borrower or the
appropriate Loan Party, as the case may be, using its commercially reasonable
efforts in respect of any such leases, will take such actions and execute such
documents as the Collateral Agent shall require to confirm the Liens of a
Mortgage, if applicable, or to create a new Mortgage (including, without
limitation, satisfaction of the conditions set forth in subsections (f), (v) and
(w) of Section 4.01) (unless, with respect to any such Real Property, (x) such
Real Property is already mortgaged to a third party to the extent permitted by
Section 6.02 or (y) the Administrative Agent determines, in its reasonable
discretion, that the fees and expenses of obtaining a Mortgage with respect to
such Real Property and the other related deliveries required by this Section
5.11 would be disproportionate to the expected benefits to be received by the
Secured Parties). All actions taken by the parties in connection with the pledge
of Additional Collateral, including, without limitation, reasonable costs of
counsel for the Administrative Agent and the Collateral Agents, shall be for the
account of the Borrower, which shall pay all sums due on demand.
SECTION 5.12. FURTHER ASSURANCES. The Loan Parties will, and will
cause each Subsidiary of a Loan Party to, execute any and all further documents,
financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture
filings, mortgages, deeds of trust and other documents and the delivery of
appropriate opinions of counsel), which may be required under any applicable
law, or which the Administrative Agent or the Requisite Lenders may reasonably
request, to effectuate the transactions contemplated by the Loan Documents or to
grant, preserve, protect or perfect the Liens created by the Security Documents
or the validity or priority of any such Lien, all at the expense of the Loan
Parties. The Loan Parties also agree to provide to the Collateral Agent, from
time to time upon reasonable request, evidence reasonably satisfactory to the
Collateral Agent as to the perfection and priority of the Liens created or
intended to be created by the Security Documents.
SECTION 5.13. USE OF PROCEEDS. The Borrower covenants and agrees that
(i) the proceeds of the Term Borrowings and Revolving Credit Borrowings on the
Effective Date will be used to finance the Transactions and to pay fees and
expenses payable hereunder as set forth in the Commitment Letter and (ii) all
other Revolving Credit Borrowings after the Effective Date will be used for
general corporate purposes, including Permitted Acquisitions.
SECTION 5.14. PAYMENT OF TAXES. Each Loan Party and its respective
Subsidiaries will pay and discharge all material taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or
upon any Properties belonging to it, prior to the date on which material
penalties attach thereto, and all lawful claims which, if unpaid, might become a
Lien or charge upon any Properties of such Loan Party or any of its respective
Subsidiaries or cause a failure or forfeiture of title thereto; PROVIDED that
neither such Loan Party nor any of its respective Subsidiaries shall be required
to pay any such tax, assessment, charge, levy or claim that is being contested
in
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good faith and by proper proceedings diligently conducted, which proceedings
have the effect of preventing the forfeiture or sale of the Property or asset
that may become subject to such Lien, if it has maintained adequate reserves
with respect thereto in accordance with and to the extent required under GAAP;
PROVIDED, FURTHER, that any such contest of any tax, assessment, charge, levy or
claim with respect to Collateral shall satisfy the Contested Collateral Lien
Conditions.
SECTION 5.15. EQUAL SECURITY FOR LOANS AND NOTES. If any Loan Party
shall create or assume any Lien upon any of its Property which does not
constitute Collateral, whether now owned or hereafter acquired, other than
Permitted Liens (unless prior written consent to the creation or assumption
thereof shall have been obtained from the Administrative Agent and the Requisite
Lenders), it shall make or cause to be made effective provisions whereby the
Obligations will be secured by such Lien equally and ratably (or, in the case of
the Second Lien Obligations, secured by such Lien on a second-priority basis) by
such Property with any and all other obligations thereby secured as long as any
such obligations shall be secured; PROVIDED that this covenant shall not be
construed as consent by the Administrative Agent and the Requisite Lenders to
any violation by any Loan Party of the provisions of Section 6.02.
SECTION 5.16. GUARANTEES. In the event that any Domestic Subsidiary
of the Borrower existing on the Effective Date has not previously executed the
Guarantee Agreement or in the event that any Person becomes a Domestic
Subsidiary of the Borrower after the Effective Date, the Borrower will promptly
notify the Administrative Agent of that fact and cause such Subsidiary to
execute and deliver to the Administrative Agent a counterpart of the Guarantee
Agreement and deliver to the Collateral Agent a counterpart of the Security
Agreement and the Pledge Agreement and to take all such further actions and
execute all such further documents and instruments (including actions, documents
and certificates comparable to those described in Sections 4.01(v) and (w)) as
may be necessary or, in the reasonable opinion of the Administrative Agent,
desirable to create in favor of the Collateral Agents, for the benefit
themselves and of the Secured Parties, valid and perfected Liens on all of the
Property of such Subsidiary described in the applicable forms of the Security
Documents, subject to Liens permitted by the applicable Loan Documents.
SECTION 5.17. SUBORDINATION OF INTERCOMPANY LOANS. Each Loan Party
covenants and agrees that any existing and future debt obligation of the
Borrower or any Subsidiary Loan Party to any Non-U.S. Subsidiary shall be
subordinated to the Loans to at least the same extent as the Convertible Notes.
SECTION 5.18. INTEREST RATE PROTECTION. No later than the 30th day
after the Effective Date, Borrower shall enter into, and for a minimum of two
years thereafter maintain, Hedging Agreements with terms and conditions
reasonably acceptable to the Administrative Agent that result in at least 50% of
the aggregate principal amount of Borrower's and its Subsidiaries' Indebtedness
being effectively subject to a fixed or maximum interest rate reasonably
acceptable to the Administrative Agent.
SECTION 5.19. POST-CLOSING COLLATERAL MATTERS.
(a) The applicable Loan Parties shall use their commercially
reasonable efforts to obtain and deliver to the Collateral Agent (unless waived
or extended by the Collateral Agent in its discretion), within thirty (30) days
after the Effective Date, to the extent such items have not been provided as of
the Effective Date, the following the property owners' consents to leasehold
mortgage financing, on terms and conditions reasonably satisfactory to the
Collateral Agent, with respect to each
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of the leased Real Properties set forth on SCHEDULE 5.19(a), within thirty (30)
days after the Effective Date, and if any such consents are obtained, the
applicable Loan Party will deliver to Collateral Agent with respect to any Real
Property for which such consent has been obtained, within such thirty (30) days,
the following:
(1) duly executed and acknowledged Mortgages, financing
statements and other instruments meeting the requirements of Section
4.01(v)(A) of the
Credit Agreement;
(2) such consents, approvals, estoppels, tenant
subordination agreements and other documents or instruments as
required by Section 4.01(v)(B) of the
Credit Agreement;
(3) policies of title insurance meeting the requirements of
Section 4.01(v)(C) of the
Credit Agreement;
(4) policies or certificates of insurance as required by
Section 4.01(v)(D) of the
Credit Agreement;
(5) a Survey as required by Section 4.01(v)(E) of the
Credit Agreement;
(6) such affidavits, certificates, information (including
financial data) and instruments of indemnification as required by
Section 4.01(v)(F) of the Credit Agreement;
(6) evidence of payment of all applicable title insurance
premiums, mortgage recording taxes, fees, charges, costs and expenses
required for the recording of such Mortgage as required by Section
4.01(v)(G) of the Credit Agreement;
(7) copies of all leases and other agreements as required
by Section 4.01(v)(H) of the Credit Agreement; and
(8) favorable written opinions of local counsel in the
states in which each such Real Property is located, as required by
Section 4.01(f) of the Credit Agreement.
(b) Within forty-five (45) days after the Effective Date (unless
waived or extended by the Collateral Agent in its discretion) the applicable
Loan Parties shall deliver to the Collateral Agent, with respect to each
lender's title insurance policy (or pro forma policy of lender's title insurance
and executed title instruction letter having the effect of a title insurance
policy), dated on or about the date hereof, insuring the Mortgages encumbering
the Mortgaged Property(ies) located on SCHEDULE 5.19(b), the following:
(i) a Survey as required by Section 4.01(v)(E) of the Credit
Agreement;
(ii) endorsements thereto (or pro forma policy of lender's title
insurance and executed title instruction letter having the effect of a
title insurance policy) (1) eliminating the general or standard survey
exception, (2) providing the comprehensive and survey endorsements thereto
as well as any other endorsements set forth in Section 4.01(v)(C) of the
Credit Agreement which were omitted as a result of the applicable Loan
Parties failure to obtain a
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Survey contemporaneously with said title insurance policy (or pro forma
policy of lender's title insurance and executed title instruction letter
having the effect of a title insurance policy) and (3) otherwise amending
the same so that the requirements of Section 4.01(v)(C) of the Credit
Agreement are met;
(iii) such affidavits, certificates, information (including
financial data) and instruments of indemnification as required by Section
4.01(v)(F) of the Credit Agreement; and
(iv) evidence of payment of all applicable premiums, charges,
costs, taxes, etc. as required by Section 4.01(v)(G) of the Credit
Agreement.
(c) For a period of ninety (90) days after the Effective Date (to
the extent not previously delivered), the applicable Loan Parties, shall use
their commercially reasonable efforts to deliver an access agreement in form and
substance reasonably satisfactory to the Collateral Agent, with respect to each
of the leased Real Properties set forth on SCHEDULE 5.19(c).
(d) The Loan Parties shall cause the reports required by Section
4.01(u)(F) for the jurisdictions specified on Schedule 5.19(d) to be delivered
to the Collateral Agent and shall promptly, discharge (unless waived or extended
by the Collateral Agent in its discretion) any Liens, other than Permitted
Liens, set forth in such results to be discharged and all actions on the part of
any Loan Party to discharge any such Lien shall be completed within 30 days of
the Effective Date.
(e) Within thirty (30) days after the Effective Date (unless
waived or extended by the Collateral Agent) the applicable Loan Parties shall
deliver to the Collateral Agent any Intercompany Notes along with instruments of
transfer delivered in accordance with this agreement that have not been provided
as of the Effective Date.
(f) Promptly after the Effective Date, the applicable Loan Parties
shall use their commercially reasonable efforts to obtain and deliver to the
Collateral Agent any required termination of security interests referenced in
4.01(o) that have not been provided as of the Effective Date and Borrower shall
use its commercially reasonable efforts to cause to be delivered the opinions
referenced in Section 4.01(f)(i) to the extent the scope of such opinions
require the executed terminations described immediately.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all Fees and other amounts payable hereunder or
under any other Loan Document have been paid in full and all Letters of Credit
have expired or terminated and all LC Disbursements shall have been reimbursed,
each of the Loan Parties and their respective Subsidiaries agree with the
Lenders that:
SECTION 6.01. INDEBTEDNESS; CERTAIN EQUITY SECURITIES. (a) The Loan
Parties will not, and will not permit any of their Subsidiaries to, directly or
indirectly, create, incur, assume or permit to exist (including by way of
Guarantee) any Indebtedness, except:
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(i) Indebtedness incurred and outstanding under the Loan
Documents;
(ii) Indebtedness (A) outstanding on the Effective Date and set
forth on SCHEDULE 6.01 (other than the Convertible Notes) and (B)
outstanding on the Effective Date represented by the Convertible Notes
(after giving effect to the Exchange) and additional Convertible Notes
issued as payment-in-kind interest in accordance with the Convertible Notes
Documents and (C) any Permitted Refinancing thereof;
(iii) Indebtedness of the Borrower to any Subsidiary Loan Party and
of any Subsidiary to the Borrower or any other Subsidiary;
(iv) Guarantees by the Borrower of Indebtedness of any Subsidiary
Loan Party and by any Subsidiary Loan Party of Indebtedness of the Borrower
or any other Subsidiary Loan Party, in each case, to the extent such
Indebtedness was permitted to be incurred hereunder, and if such
Indebtedness is subordinated to the Obligations under the Loan Documents,
such Guarantee is as subordinated in right of payment to the Obligations;
(v) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business; PROVIDED that such
Indebtedness is extinguished within two Business Days of its incurrence;
(vi) Indebtedness (including Capital Lease Obligations) of the
Asian Funding Vehicles; PROVIDED that (A) the sum of (x) the aggregate
principal amount of such Indebtedness at any one time outstanding plus (y)
the aggregate net proceeds from sales or issuances of Equity Interests in
accordance with Section 6.05(viii) plus (z) the aggregate liquidation value
of all Disqualified Equity Interests outstanding under Section 6.01(b)
shall not exceed $40.0 million in the aggregate and (B) such Indebtedness
shall be Non-Recourse Debt;
(vii) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or
capital assets, including Capital Lease Obligations and any Indebtedness
assumed in connection with the acquisition of any such assets or secured by
a Lien on any such assets prior to the acquisition thereof, and extensions,
renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof or result in an earlier maturity date
or decreased Weighted Average Life to Maturity thereof; PROVIDED that (A)
such Indebtedness is incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvement and (B)
the aggregate principal amount of Indebtedness permitted by this clause
(ix) shall not exceed $30.0 million at any time outstanding;
(viii) Hedging Agreements entered into in the ordinary course of
business and not for speculative purposes;
(ix) Indebtedness owed to (including obligations in respect of
letters of credit for the benefit of) any Person providing worker's
compensation, health, disability or other employee benefits or property,
casualty or liability insurance to the Borrower or any Subsidiary, pursuant
to reimbursement or indemnification obligations to such Person;
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(x) Indebtedness of the Borrower and its Subsidiaries in respect
of performance bonds, bid bonds, appeal bonds, surety bonds and similar
obligations and trade-related letters of credit, in each case provided in
the ordinary course of business, including those incurred to secure health,
safety and environmental obligations in the ordinary course of business;
(xi) Indebtedness arising from agreements of the Borrower or any
Subsidiary of the Borrower providing for indemnification, adjustment of
purchase price or similar obligations, in each case, incurred or assumed in
connection with the disposition of any business, assets or a Subsidiary,
other than Guarantees of Indebtedness incurred by any Person acquiring all
or any portion of such business, assets or a Subsidiary for the purpose of
financing such acquisition;
(xii) obligations in respect of performance and surety bonds and
completion guarantees provided by the Borrower or any Subsidiary in the
ordinary course of business;
(xiii) Indebtedness of a Person existing at the time such Person
becomes a Subsidiary of the Borrower in connection with a Permitted
Acquisition, but only if such Indebtedness was not created or incurred in
contemplation of such Person becoming a Subsidiary and so long as the
aggregate principal amount thereof does not exceed $5.0 million at any time
outstanding; PROVIDED that (x) no Default or Event of Default shall have
occurred or be continuing or would result therefrom and (y) after giving
effect to the incurrence of such Indebtedness (and any other Indebtedness
incurred since the last day of the immediately preceding Test Period) on a
Pro Forma Basis as if it was incurred on the first day of the immediately
preceding Test Period (but tested as if the applicable ratio were the ratio
for the next succeeding Test Period), the Borrower would be in compliance
with the Financial Covenants;
(xiv) other Indebtedness of the Borrower or any Subsidiary in an
aggregate principal amount not exceeding $10.0 million at any time
outstanding; and
(xv) Indebtedness of Foreign Subsidiaries in an aggregate principal
amount not exceeding $10.0 million at any time outstanding.
(b) The Loan Parties will not, nor will they permit any of their
Subsidiaries (other than the Asian Funding Vehicles) to, directly or indirectly,
issue any Preferred Stock or other preferred Equity Interest ("DISQUALIFIED
EQUITY INTERESTS") which (i) matures or is mandatorily redeemable pursuant to a
sinking fund obligation or otherwise, (ii) is or may become redeemable or
repurchaseable at the option of the holder thereof, in whole or in part, or
(iii) is convertible or exchangeable at the option of the holder thereof for
Indebtedness or Preferred Stock or any other preferred Equity Interest described
in this paragraph, in each case, prior to six months following the Second Lien
Term Loan Maturity Date; PROVIDED that the sum of (z) the aggregate liquidation
value of all Disqualified Equity Interests outstanding under this Section
6.01(b) plus (y) the aggregate net proceeds from sales or issuances of Equity
Interests in accordance with Section 6.05(viii) plus (z) the aggregate principal
amount of Indebtedness outstanding under Section 6.01(a)(vi) shall not exceed
$40.0 million in the aggregate.
SECTION 6.02. LIENS. The Loan Parties will not, and will not permit
any of their Subsidiaries to, directly or indirectly, create, incur, assume or
permit to exist any Lien on any Property or asset now owned or hereafter
acquired by them, or assign or sell any income or revenues (including
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accounts receivable) or rights in respect of any thereof, except the following
(herein collectively referred to as "PERMITTED LIENS"):
(i) Liens in favor of the Collateral Agents under the Security
Documents;
(ii) Liens on assets acquired after the Effective Date existing at
the time of acquisition thereof by the Borrower or any Subsidiary; PROVIDED
that such Liens were not incurred in connection with, or in contemplation
of, such acquisition and do not extend to any assets of the Borrower or any
Subsidiary other than the specific assets so acquired;
(iii) Liens to secure the performance of statutory obligations,
surety or appeal bonds or performance bonds, landlords', carriers',
warehousemen's, mechanics', suppliers', materialmen's, attorney's or other
like liens, in any case incurred in the ordinary course of business and
with respect to amounts not yet delinquent or being contested in good faith
by appropriate proceedings promptly instituted and diligently conducted;
PROVIDED that (A) a reserve or other appropriate provision, if any, as is
required by GAAP shall have been made therefor, (B) if such Lien is on
Collateral, the Contested Collateral Lien Conditions shall at all times be
satisfied and (C) such Liens relating to statutory obligations, surety or
appeal bonds or performance bonds shall only extend to or cover cash and
Cash Equivalents not in the Collateral Account;
(iv) Liens existing on the Effective Date and identified on
SCHEDULE 6.02 to the extent permitted by the applicable Security Documents;
(v) Liens for taxes, assessments or governmental charges or claims
or other like statutory Liens, in any case incurred in the ordinary course
of business, that do not secure Indebtedness for borrowed money and (A)
that are not yet delinquent or (B) that are being contested in good faith
by appropriate proceedings promptly instituted and diligently concluded;
PROVIDED that (1) any reserve or other appropriate provision as shall be
required in conformity with GAAP shall have been made therefor and (2) if
such Lien is on Collateral, the Contested Collateral Lien Conditions shall
at all times be satisfied;
(vi) Liens to secure Indebtedness (including Capital Lease
Obligations) of the type described in Section 6.01(a)(vii) covering only
the assets acquired or improved with such Indebtedness;
(vii) Liens securing Indebtedness incurred to refinance Indebtedness
secured by the Liens of the type described in clause (ii) of this Section
6.02; PROVIDED that any such Lien shall not extend to or cover any assets
not securing the Indebtedness so refinanced;
(viii) (A) Liens in the form of zoning restrictions, easements,
licenses, reservations, covenants, conditions or other restrictions on the
use of real property or other minor irregularities in title (including
leasehold title) that do not (1) secure Indebtedness or (2) individually or
in the aggregate materially impair the value or marketability of the real
property affected thereby or the occupation, use and enjoyment in the
ordinary course of business of the Borrower and any Subsidiary at such real
property and (B) with respect to leasehold interests in real property,
mortgages, obligations, liens and other encumbrances incurred, created,
assumed
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or permitted to exist and arising by, through or under a landlord or owner
of such leased property encumbering the landlord's or owner's interest in
such leased property;
(ix) Liens in the form of pledges or deposits securing bids,
tenders, contracts (other than contracts for borrowed money) or leases to
which the Borrower or any Subsidiary is a party, in each case, made in the
ordinary course of business for amounts (A) not yet due and payable or (B)
being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted; PROVIDED that (1) a reserve or other
appropriate provision, if any, as is required by GAAP shall have been made
therefor, (2) if such Lien is on Collateral, the Contested Collateral Lien
Conditions shall at all times be satisfied and (3) such Liens shall in no
event encumber any Collateral other than cash and Cash Equivalents not in
the Collateral Account;
(x) Liens resulting from operation of law with respect to any
judgments, awards or orders to the extent that such judgments, awards or
orders do not cause or constitute a Default under this Agreement; PROVIDED
that if any such Liens are on Collateral, the Contested Collateral Lien
Conditions shall at all times be satisfied;
(xi) Liens in the form of licenses, leases or subleases granted or
created by the Borrower or any Subsidiary, which licenses, leases or
subleases do not interfere, individually or in the aggregate, in any
material respect with the business of the Borrower or such Subsidiary or
individually or in the aggregate materially impair the use (for its
intended purpose) or the value of the property subject thereto, PROVIDED
that (x) to the extent such licenses, leases or subleases relate to
Mortgaged Property in existence as of the Effective Date, the Borrower or
such Subsidiary shall use its commercially reasonable efforts to as soon as
practicable cause such licenses, leases or subleases to be subordinated to
the Lien granted and evidenced by the Security Documents in accordance with
the provisions thereof and (y) to the extent entered into after the
Effective Date, such licenses, leases or subleases shall be subordinate to
the Lien granted and evidenced by the Security Documents in accordance with
the provisions thereof; PROVIDED, FURTHER, that any such Lien shall not
extend to or cover any assets of the Borrower or any Subsidiary that is not
the subject of any such license, lease or sublease;
(xii) Liens on fixtures or personal property held by or granted to
landlords pursuant to leases to the extent that such Liens are not yet due
and payable; PROVIDED that (i) with respect to any such Liens on any
material portion of the Collateral in existence on the Effective Date, the
Borrower or any applicable Subsidiary has used its commercially reasonable
efforts to obtain a landlord lien waiver reasonably satisfactory to the
Collateral Agent and (ii) with respect to any leases entered into after the
Effective Date, the Borrower or any applicable Subsidiary shall use its
commercially reasonable efforts to (x) enter into a lease that does not
▇▇▇▇▇ ▇ ▇▇▇▇ on fixtures or personal property in favor of the landlord
thereunder or (y) obtain a landlord lien waiver reasonably satisfactory to
the Collateral Agent;
(xiii) Liens securing Indebtedness permitted by Section
6.01(a)(xiii); PROVIDED that such Liens existed prior to such Person
becoming a Subsidiary, were not created in anticipation thereof and attach
only to specific assets of such Person that is the subject of the Permitted
Acquisition; and
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(xiv) Liens securing Indebtedness permitted by Section 6.01(a)(vi),
6.01(a)(xiv) or 6.01(a)(xv);
PROVIDED, HOWEVER, that no Liens shall be permitted to exist, directly or
indirectly, on any Securities Collateral (as defined in the Security Agreement)
other than Liens in favor of the Collateral Agents and Liens permitted by
clauses (v) and (x).
SECTION 6.03. FUNDAMENTAL CHANGES; LINE OF BUSINESS. (a) The Loan
Parties will not, and will not permit any of their Subsidiaries to, directly or
indirectly, merge into or consolidate with any other Person, or permit any other
Person to merge into or consolidate with them, or liquidate or dissolve, except
that, if at the time thereof and immediately after giving effect thereto no
Default or Event of Default shall have occurred and be continuing, (i) any
Subsidiary may merge into the Borrower in a transaction in which the Borrower is
the surviving corporation, (ii) any Subsidiary may merge with or into any
Subsidiary in a transaction in which the surviving entity is a Subsidiary and
(if any party to such merger is a Subsidiary Loan Party) is a Subsidiary Loan
Party and (iii) Permitted Acquisitions may be consummated; PROVIDED that in
connection with the foregoing, the appropriate Loan Parties shall take all
actions necessary or reasonably requested by the Collateral Agent to maintain
the perfection of or perfect, as the case may be, protect and preserve the Liens
on the Collateral granted to the Collateral Agents pursuant to the Security
Documents and otherwise comply with the provisions of Sections 5.11 and 5.12, in
each case, on the terms set forth therein and to the extent applicable.
(b) Notwithstanding the foregoing, (i) any Loan Party may dispose
of any or all of its assets (upon voluntary liquidation or otherwise) to any
other Loan Party and (ii) any Subsidiary which is not a Loan Party may dispose
of any or all of its assets (upon voluntary liquidation or otherwise) to the
Borrower or any other Subsidiary; PROVIDED that in connection with each of the
foregoing, the appropriate Loan Parties shall take all actions necessary or
reasonably requested by the Collateral Agent to maintain the perfection of or
perfect, as the case may be, protect and preserve the Liens on the Collateral
granted to the Collateral Agents pursuant to the Security Documents and
otherwise comply with the provisions of Sections 5.11 and 5.12, in each case, on
the terms set forth therein and to the extent applicable).
(c) The Borrower will not, and will not permit any of its
Subsidiaries to, directly or indirectly, engage in any business other than
businesses of the type conducted by the Borrower and the Subsidiaries on the
Effective Date and businesses reasonably related thereto.
SECTION 6.04. INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND
ACQUISITIONS. The Loan Parties will not, and will not permit any Subsidiary to,
directly or indirectly, purchase, hold or acquire (including pursuant to any
merger with any Person that was not a Wholly Owned Subsidiary prior to such
merger) any Equity Interests in or evidences of Indebtedness or other securities
(including any option, warrant or other right to acquire any of the foregoing)
of, make or permit to exist any loans or advances to, Guarantee any obligations
of, or make or permit to exist any investment or any other interest in, any
other Person, or provide other credit support for any Person or purchase or
otherwise acquire (in one transaction or a series of transactions) any assets of
any other Person constituting a business unit (each of the foregoing, an
"INVESTMENT" and collectively, "INVESTMENTS"), except:
(i) Permitted Investments;
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(ii) Investments existing on the Effective Date (or in respect of
which a binding commitment to make such investment exists on the Effective
Date) and set forth on SCHEDULE 6.04;
(iii) Investments after the Effective Date (A) by the Borrower or
any Subsidiary in any Loan Party, (B) by any Subsidiary that is not a Loan
Party in the Borrower or any Wholly Owned Subsidiary (C) by any Asian
Funding Vehicle in another Asian Funding Vehicle and (D) by the Borrower or
any Subsidiary in any Subsidiary that is not a Loan Party, PROVIDED that
the aggregate amount of such Investments pursuant to this clause (D) shall
not exceed $20.0 million at any one time outstanding; and PROVIDED,
FURTHER, that any such Investment held by a Loan Party shall be pledged
pursuant to a Pledge Agreement or a Non-U.S. Pledge Agreement in accordance
with Section 5.11;
(iv) Guarantees constituting Indebtedness permitted by Section
6.01(a)(iv);
(v) Investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(vi) loans and advances to employees of the Borrower or its
Subsidiaries in the ordinary course of business (including, without
limitation, for travel, entertainment and relocation expenses) not to
exceed $1.0 million in the aggregate at any time outstanding; PROVIDED that
(x) to the extent such loans or advances are evidenced by promissory notes,
such promissory notes shall be endorsed in blank and delivered to the
Collateral Agent pursuant to the Pledge Agreement and (y) the Borrower
shall and shall cause its Subsidiaries to take all actions and execute all
documents reasonably requested by the Collateral Agent to confirm the
Collateral Agents' security interest in such loans and advances and/or
promissory notes pursuant to the applicable Security Documents;
(vii) Permitted Acquisitions for aggregate Acquisition Consideration
since the Effective Date not to exceed $35.0 million (of which not more
than $15.0 million may be used to consummate Permitted Acquisitions by
Subsidiaries that are not Loan Parties); PROVIDED that, with respect to any
Permitted Acquisition, if the Total Leverage Ratio, on a Pro Forma Basis
after giving effect to such Permitted Acquisition, for the latest Test
Period is less than or equal to 3.50 to 1.00, then the Acquisition
Consideration for such Permitted Acquisition, together with the aggregate
Acquisition Consideration for all other Permitted Acquisitions effected
pursuant to this Section 6.04(vii) since the Effective Date, may exceed
$35.0 million but shall not exceed $50.0 million;
(viii) Investments of the Borrower or any Subsidiary Loan Party not
in excess of $15.0 million outstanding at any time.
The aggregate amount of an Investment at any one time outstanding for
purposes of this Section 6.04 shall be deemed to be equal to (A) the aggregate
amount of cash, together with the aggregate fair market value of Property,
loaned, advanced, contributed, transferred or otherwise invested that gives rise
to such Investment MINUS (B) the aggregate amount of dividends, distributions or
other payments received in cash in respect of such Investment (including by way
of a sale or other disposition
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of such Investment). The amount of an Investment shall not in any event be
reduced by reason of any write-off of such Investment.
SECTION 6.05. ASSET SALES. The Loan Parties will not, and will not
permit any Subsidiary to, directly or indirectly, sell, transfer, lease or
otherwise dispose of any asset, including any Equity Interest owned by them, nor
will the Borrower permit any of its Subsidiaries to, directly or indirectly,
issue any additional Equity Interest in such Subsidiary, except:
(i) sales of inventory or used, surplus, obsolete, outdated,
inefficient or worn out equipment and other property in the ordinary course
of business;
(ii) sales, transfers and dispositions to any Loan Party; PROVIDED
that in connection with the foregoing, the appropriate Loan Parties shall
take all actions necessary or reasonably requested by the Collateral Agent
to maintain the perfection of or perfect, as the case may be, protect and
preserve the Liens on the Collateral granted to the Collateral Agent
pursuant to the Security Documents and otherwise comply with the provisions
of Sections 5.11 and 5.12, in each case, on the terms set forth therein and
to the extent applicable;
(iii) sales, transfers and dispositions by any Subsidiary that is
not a Loan Party to any Wholly Owned Subsidiary of the Borrower;
(iv) the lease or sublease of Real Property in the ordinary course
of business and not constituting a sale and leaseback transaction;
(v) sales of Permitted Investments on ordinary business terms;
(vi) Liens permitted by Section 6.02 and Investments permitted
under Section 6.04;
(vii) the lease of certain facilities of Chicopee located in Little
Rock, Arkansas;
(viii) the sale or issuance of Equity Interests of the Asian Funding
Vehicles; PROVIDED that the sum of (x) the aggregate net proceeds from all
such sales or issuances pursuant to this clause (viii) plus (y) the
aggregate principal amount of Indebtedness outstanding under Section
6.01(a)(vi) plus (z) the aggregate liquidation value of all Disqualified
Equity Interests outstanding under Section 6.01(b) shall not exceed $40.0
million in the aggregate;
(ix) sales, transfers and dispositions of assets (other than Equity
Interests of a Subsidiary) not otherwise permitted under this Section;
PROVIDED that the aggregate fair market value of all assets sold,
transferred or otherwise disposed of in reliance upon this clause (ix)
shall not exceed $35.0 million in the aggregate and the Net Proceeds
thereof are applied as required by Section 2.05(c)(iii);
(x) (A) issuances of Equity Interests by any Subsidiary of the
Borrower to the Borrower or any Wholly Owned Subsidiary of the Borrower and
(B) capital contributions by the Borrower or any Wholly Owned Subsidiary of
the Borrower to any Subsidiary of the Borrower; and
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(xi) Permitted Factoring Transactions;
PROVIDED that all sales, transfers, leases and other dispositions permitted
hereby shall be made for fair value and, in the case of sales, transfers, leases
and other dispositions permitted by clauses (i), (v), (viii) and (ix), for
consideration consisting of at least 75% cash and Cash Equivalents.
SECTION 6.06. SALE AND LEASEBACK TRANSACTIONS. The Loan Parties will
not, and will not permit any of their Subsidiaries to, directly or indirectly,
enter into any arrangement, directly or indirectly, whereby they shall sell or
transfer any Property, real or personal, used or useful in their business,
whether now owned or hereafter acquired, and thereafter rent or lease such
Property or other Property that they intend to use for substantially the same
purpose or purposes as the Property sold or transferred (a "SALE AND LEASEBACK
TRANSACTION") unless (i) the sale of such Property is permitted by Section 6.05
and (ii) any Lien arising in connection with the use of such Property by any
Loan Party or a Subsidiary is permitted by Section 6.02.
SECTION 6.07. RESTRICTED PAYMENTS. The Loan Parties will not, and
will not permit any Subsidiary to, directly or indirectly, declare or make, or
agree to pay or make, directly or indirectly, any Restricted Payment, or incur
any obligation (contingent or otherwise) to do so, except:
(i) Subsidiaries of the Borrower may declare and pay dividends to
the Borrower, another Subsidiary or any other holder of its Equity
Interests ratably with respect to their Equity Interests or additional
shares of the same class of shares as the dividend being paid to the extent
such payment complies with Section 6.01(b); PROVIDED that no such dividend
or distribution shall be made by any such Subsidiary to any Person other
than the Borrower or another Subsidiary unless ratable dividends or
distributions are concurrently made to all holders of the applicable Equity
Interests;
(ii) the Borrower may pay dividends consisting solely of shares of
its common stock or additional shares of the same class of shares as the
dividend being paid and
(iii) the Borrower and its Subsidiaries may make Restricted Payments
not to exceed $5.0 million in the aggregate since the Effective Date.
SECTION 6.08. TRANSACTIONS WITH AFFILIATES. The Loan Parties will
not, and will not permit any of their Subsidiaries to, directly or indirectly,
sell, lease or otherwise transfer any property or assets to, or purchase, lease
or otherwise acquire any property or assets from, or otherwise engage in any
other transactions with, any of their Affiliates, unless such transactions are
in the ordinary course of the Borrower's business and are at prices and on terms
and conditions not less favorable to the Loan Party or such Subsidiary than
could be obtained on an arm's-length basis from unrelated third parties, except:
(i) transactions between or among the Borrower and the
Subsidiaries not involving any other Affiliate;
(ii) any Restricted Payment permitted by Section 6.07;
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(iii) fees and compensation, benefits and incentive arrangements
paid or provided to, and any indemnity provided on behalf of, officers,
directors or employees of the Borrower or any Subsidiary as determined in
good faith by the board of directors of the Borrower;
(iv) loans and advances to employees of the Borrower or any
Subsidiary Loan Party permitted by Section 6.04(vii);
(v) transactions for purchases of raw materials in the ordinary
course of business on commercially reasonable terms and conditions from
suppliers from which the Borrower or any of its Subsidiaries has made such
purchases prior to the Effective Date; and
(vi) the issuance or sale of any Equity Interests of the Borrower.
SECTION 6.09. RESTRICTIVE AGREEMENTS. The Loan Parties will not, and
will not permit any Subsidiary to, directly or indirectly, enter into, incur or
permit to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of any Loan Party to create, incur or
permit to exist any Lien upon any of its Property or assets, or (b) the ability
of any Subsidiary to pay dividends or other distributions with respect to any of
its Equity Interests or to make or repay loans or advances to the Borrower or
any other Subsidiary or to Guarantee Indebtedness of the Borrower or any other
Subsidiary or to transfer property to the Borrower or any of its Subsidiaries;
PROVIDED that the foregoing shall not apply to:
(i) conditions imposed by law or by any Loan Document;
(ii) clause (a) shall not apply to assets encumbered by Permitted
Liens as long as such restriction applies only to the asset encumbered by
such Permitted Lien;
(iii) restrictions and conditions existing on the Effective Date not
otherwise excepted from this Section 6.09 identified on SCHEDULE 6.09 (but
shall not apply to any amendment or modification expanding the scope of any
such restriction or condition);
(iv) in the case of clause (a) only, any agreement in effect at the
time any Person becomes a Subsidiary of the Borrower; PROVIDED that such
agreement was not entered into in contemplation of such Person becoming a
Subsidiary;
(v) customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary (or the assets of a Subsidiary)
pending such sale, PROVIDED such restrictions and conditions apply only to
the Subsidiary that is to be sold (or whose assets are to be sold) and such
sale is permitted hereunder; and
(vi) clause (a) shall not apply to customary provisions in leases
and service contracts in the ordinary course of business between the
Borrower or any Subsidiary and its customers and other contracts
restricting the assignment thereof.
SECTION 6.10. AMENDMENTS OR WAIVERS OF CERTAIN DOCUMENTS; PREPAYMENTS
OF CERTAIN INDEBTEDNESS. (a) The Loan Parties will not, and will not permit any
Subsidiary to, directly or indirectly, amend or otherwise change (or waive) (i)
any subordination provision (or any definition related to any subordination
provision) of any Subordinated Debt Document or (ii) the terms of any
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Organic Document or any Subordinated Debt Document, in each case, in a manner
adverse to the Lenders.
(b) The Loan Parties will not, and will not permit any Subsidiary
to, make (or give any notice or offer in respect of) any voluntary or optional
payment or mandatory prepayment or redemption or acquisition for value of
(including, without limitation, by way of depositing with any trustee with
respect thereto money or securities before such Indebtedness is due for the
purpose of paying such Indebtedness when due) or exchange of principal of any
Subordinated Debt, other than pursuant to any customary registered exchange
offer therefor after a private placement thereof, any Permitted Refinancing or
(so long as no Default then exists) any exchange of Equity Interests of Borrower
for any such Indebtedness.
SECTION 6.11. NO OTHER "DESIGNATED SENIOR INDEBTEDNESS". The Borrower
shall not designate, or permit the designation of, any Indebtedness (other than
under this Agreement or the other Loan Documents) as "Designated Senior
Indebtedness" (or any equivalent term) under any Subordinated Debt Documents.
SECTION 6.12. INTEREST EXPENSE COVERAGE RATIO. The Borrower will not
permit the Interest Expense Coverage Ratio for any Test Period to be less than
the ratio set forth below opposite the date set forth below which is closest to
the last day of such Test Period:
Date Ratio
---- -----
June 30, 2004 2.00:1.00
September 30, 2004 2.00:1.00
December 31, 2004 2.50:1.00
March 31, 2005 2.50:1.00
June 30, 2005 2.50:1.00
September 30, 2005 2.50:1.00
December 31, 2005 2.75:1.00
March 31, 2006 2.75:1.00
June 30, 2006 2.75:1.00
September 30, 2006 2.75:1.00
December 31, 2006 3.00:1.00
March 31, 2007 3.00:1.00
June 30, 2007 3.00:1.00
September 30, 2007 3.00:1.00
December 31, 2007 3.25:1.00
March 31, 2008 3.25:1.00
June 30, 2008 3.25:1.00
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Date Ratio
---- -----
September 30, 2008 3.25:1.00
December 31, 2008 3.50:1.00
March 31, 2009 3.50:1.00
June 30, 2009 3.50:1.00
September 30, 2009 3.50:1.00
December 31, 2009 3.50:1.00
March 31, 2010 3.50:1.00
June 30, 2010 3.50:1.00
September 30, 2010 3.50:1.00
December 31, 2010 3.50:1.00
March 31, 2011 3.50:1.00
SECTION 6.13. TOTAL LEVERAGE RATIO. The Borrower will not permit the
Total Leverage Ratio at the end of any Test Period to exceed the ratio set forth
opposite the date set forth below which is closest to the last day of such Test
Period:
Date Ratio
---- -----
June 30, 2004 6.00:1.00
September 30, 2004 6.00:1.00
December 31, 2004 5.50:1.00
March 31, 2005 5.50:1.00
June 30, 2005 5.50:1.00
September 30, 2005 5.50:1.00
December 31, 2005 5.00:1.00
March 31, 2006 5.00:1.00
June 30, 2006 5.00:1.00
September 30, 2006 5.00:1.00
December 31, 2006 4.50:1.00
March 31, 2007 4.50:1.00
June 30, 2007 4.50:1.00
September 30, 2007 4.50:1.00
December 31, 2007 4.00:1.00
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Date Ratio
---- -----
March 31, 2008 4.00:1.00
June 30, 2008 4.00:1.00
September 30, 2008 4.00:1.00
December 31, 2008 3.50:1.00
March 31, 2009 3.50:1.00
June 30, 2009 3.50:1.00
September 30, 2009 3.50:1.00
December 31, 2009 3.50:1.00
March 31, 2010 3.50:1.00
June 30, 2010 3.50:1.00
September 30, 2010 3.50:1.00
December 31, 2010 3.50:1.00
March 31, 2011 3.50:1.00
SECTION 6.14. CAPITAL EXPENDITURES. The Borrower will not, and will
not permit any of its Subsidiaries to, make or commit to make any Capital
Expenditures, except that (a) the Borrower and its Subsidiaries may make or
commit to make Capital Expenditures not exceeding the amount set forth below
(the "BASE AMOUNT") for each of the Fiscal Years of the Borrower set forth
below:
Fiscal Year Base Amount
----------- -----------
2004 $35.0 million
2005 $40.0 million
2006 $40.0 million
2007 $45.0 million
2008 $45.0 million
2009 $50.0 million
2010 $50.0 million
2011 $30.0 million
PROVIDED that for any period set forth above, the Base Amount set forth above
may be increased by a maximum of 50% of the Base Amount for any such period by
carrying over to any such period any portion of the Base Amount (without giving
effect to any increase) not spent in the immediately preceding period, and that
Capital Expenditures in any period shall be deemed first made from the Base
Amount applicable to such period in any given period; PROVIDED, FURTHER, that
for avoidance of doubt,
-▇▇-
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ for the Fiscal Year beginning January 3, 2004 shall include
Capital Expenditures made or committed to be made by the Borrower and its
Subsidiaries prior to the Effective Date and (b) the Asian Funding Vehicles may
make Capital Expenditures in an aggregate amount not to exceed the aggregate net
proceeds received from Asian Funding.
SECTION 6.15. ANTI-TERRORISM LAW. The Loan Parties shall not (i)
conduct any business or engage in making or receiving any contribution of funds,
goods or services to or for the benefit of any Person described in Section 3.22
above, (ii) deal in, or otherwise engage in any transaction relating to, any
property or interests in property blocked pursuant to the Executive Order or any
other Anti-Terrorism Law, or (iii) engage in or conspire to engage in any
transaction that evades or avoids, or has the purpose of evading or avoiding, or
attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law
(and the Loan Parties shall deliver to the Lenders any certification or other
evidence requested from time to time by any Lender in its reasonable discretion,
confirming the Loan Parties' compliance with this Section 6.15).
SECTION 6.16. EMBARGOED PERSON. At all times throughout the term of
the Loans, (a) none of the funds or assets of the Loan Parties that are used to
repay the Loans shall constitute property of, or shall be beneficially owned
directly or, to the knowledge of any Loan Party, indirectly by, any Person
subject to sanctions or trade restrictions under United States law ("EMBARGOED
PERSON" or "EMBARGOED Persons") that is identified on (1) the "List of Specially
Designated Nationals and Blocked Persons" (the "SDN LIST") maintained by the
Office of Foreign Assets Control (OFAC), U.S. Department of the Treasury, and/or
to the knowledge of any Loan Party, as of the date thereof, based upon
reasonable inquiry by such Loan Party, on any other similar list ("OTHER LIST")
maintained by OFAC pursuant to any authorizing statute including, but not
limited to, the International Emergency Economic Powers Act, 50 U.S.C. Sections
1701 et SEQ., The Trading with the Enemy Act, 50 U.S.C. App. 1 ET SEQ., and any
Executive Order or regulation promulgated thereunder, with the result that the
investment in the Loan Parties (whether directly or indirectly) is prohibited by
law, or the Loans made by the Lenders would be in violation of law, or (2) the
Executive Order, any related enabling legislation or any other similar Executive
Orders (collectively, "EXECUTIVE ORDERS"), and (b) no Embargoed Person shall
have any direct interest, and to the knowledge of any Loan Party, as of the date
hereof, based upon reasonable inquiry by any Loan Party, indirect interest, of
any nature whatsoever in the Loan Parties, with the result that the investment
in the Loan Parties (whether directly or indirectly) is prohibited by law or the
Loans are in violation of law.
SECTION 6.17. ANTI-MONEY LAUNDERING. At all times throughout the term
of the Loans, to the knowledge of any Loan Party, as of the date hereof, based
upon reasonable inquiry by such Loan Party, none of the funds of such Loan Party
that are used to repay the Loans shall be derived from any unlawful activity
with the result that the investment in the Loan Parties (whether directly or
indirectly), is prohibited by law or the Loans would be in violation of law.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. LISTING OF EVENTS OF DEFAULT. Each of the following
events or occurrences described in this Section 7.01 shall constitute (i) an
"EVENT OF DEFAULT", if any Loans, LC Disbursements or Letters of Credit are
outstanding, and (ii) an "EVENT OF TERMINATION", if no Loans, LC Disbursements
or Letters of Credit are outstanding:
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(a) The Borrower shall default (i) in the payment when due of any
principal of any Loan (including, without limitation, on any Installment
Payment Date) or any reimbursement obligation in respect of any LC
Disbursement, (ii) in the payment when due of any interest on any Loan (and
such default shall continue unremedied for a period of three Business
Days), or (iii) in the payment when due of any Fee described in Section
2.10 or of any other previously invoiced amount (other than an amount
described in clauses (i) and (ii)) payable under this Agreement or any
other Loan Document (and such default shall continue unremedied for a
period of three Business Days).
(b) Any representation or warranty of the Borrower or any other
Loan Party made or deemed to be made hereunder or in any other Loan
Document or any other writing or certificate furnished by or on behalf of
the Borrower or any other Loan Party to the Administrative Agent, the
Issuing Bank or any Lender for the purposes of or in connection with this
Agreement or any such other Loan Document is or shall be incorrect in any
material respect when made or deemed made.
(c) The Borrower shall default in the due performance and
observance of any of its obligations under clause (e), (f) or (j) of
Section 5.01, clause (a) of Section 5.02 (with respect to the maintenance
and preservation of the Borrower's corporate existence) or Article VI.
(d) The Borrower or any other Loan Party shall default in the due
performance and observance of any agreement (other than those specified in
paragraphs (a) through (c) above) contained herein or in any other Loan
Document, and such default shall continue unremedied for a period of 30
days after the date of such default.
(e) A default shall occur (i) in the payment when due (subject to
any applicable grace period), whether by acceleration or otherwise, of any
Material Indebtedness or (ii) in the performance or observance of any
obligation or condition with respect to any Material Indebtedness if the
effect of such default referred to in this clause (ii) is to accelerate the
maturity of any such Material Indebtedness or enable or permit (with or
without the giving of notice, the lapse of time or both) the holder or
holders of any such Material Indebtedness or any trustee or agent on its or
their behalf to cause any such Material Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof, prior
to its scheduled maturity.
(f) Any judgment or order (or combination of judgments and orders)
for the payment of money equal to or in excess of $10.0 million
individually or in the aggregate shall be rendered against the Borrower or
any of their Subsidiaries (or any combination thereof) and
(i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order and not stayed;
(ii) such judgment has not been stayed, vacated or
discharged within 60 days of entry; or
(iii) there shall be any period (after any applicable
statutory grace period) of 10 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect and such judgment is
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not fully insured against by a policy or policies of insurance (with
reasonable or standard deductible provisions) issued by an insurer
other than an Affiliate of the Borrower.
(g) Any of the following events shall occur:
(i) the taking of any specific actions by a Loan Party, any
ERISA Affiliate or any other Person to terminate a Pension Plan if, as
a result of such termination, a Loan Party or any ERISA Affiliate
could reasonably expect to incur a liability or obligation to such
Pension Plan which could reasonably be expected to have a Material
Adverse Effect; or
(ii) an ERISA Event, or termination, withdrawal or event of
noncompliance with applicable law or plan terms with respect to
Foreign Plans, shall have occurred that when taken together with all
other ERISA Events and terminations, withdrawals and events of
noncompliance with respect to Foreign Plans that have occurred, could
reasonably be expected to have a Material Adverse Effect.
(h) Any Change in Control shall occur.
(i) Any Loan Party shall
(i) become insolvent or generally fail to pay debts as they
become due;
(ii) apply for, consent to or acquiesce in the appointment
of a trustee, receiver, sequestrator or other custodian for any Loan
Party or substantially all of its property, or make a general
assignment for the benefit of creditors;
(iii) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a trustee,
receiver, sequestrator or other custodian for any Loan Party or for a
substantial part of its property, and such trustee, receiver,
sequestrator or other custodian shall not be discharged or stayed
within 60 days, PROVIDED that each Loan Party hereby expressly
authorizes the Administrative Agent and each Lender to appear in any
court conducting any relevant proceeding during such 60-day period to
preserve, protect and defend their rights under the Loan Documents;
(iv) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in respect of any Loan Party
and, if any such case or proceeding is not commenced by any Loan
Party, such case or proceeding shall be consented to or acquiesced in
by such Loan Party or shall result in the entry of an order for relief
or shall remain for 60 days undismissed and unstayed; PROVIDED that
each Loan Party hereby expressly authorizes the Administrative Agent
and each Lender to appear in any court conducting any such case or
proceeding during such 60-day period to preserve, protect and defend
their rights under the Loan Documents; or
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(v) take any corporate or partnership action (or comparable
action, in the case of any other form of legal entity) for the purpose
of effecting any of the foregoing.
(j) The obligations of any Loan Party under the Guarantee
Agreement shall cease to be in full force and effect (except in accordance
with its terms) or any such Loan Party shall repudiate its obligations
thereunder.
(k) Any Security Document shall cease to be in full force and
effect (except in accordance with its terms) or any Lien purported to be
created under any Security Document shall fail or cease to be, or shall be
asserted by any Loan Party not to be, a valid and perfected Lien on any
material portion of the Collateral, with the priority required by the
applicable Security Document.
(l) The subordination provisions relating to the Convertible Notes
or any other Subordinated Debt (the "SUBORDINATION PROVISIONS") shall fail
in any material respect to be enforceable by the Lenders (which have not
effectively waived the benefits thereof) in accordance with the terms
thereof or the Borrower or any Subsidiary Loan Party shall, directly or
indirectly, disavow or contest in any manner any of the Subordination
Provisions.
SECTION 7.02. ACTION IF BANKRUPTCY. If any Event of Default described
in Section 7.01(i) shall occur, the Commitments (if not theretofore terminated)
shall automatically terminate and the outstanding principal amount of all
outstanding Loans and all other Obligations shall automatically be and become
immediately due and payable, without notice or demand, all of which are hereby
waived by the Borrower.
SECTION 7.03. ACTION IF OTHER EVENT OF DEFAULT. If any Event of
Default (other than any Event of Default described in Section 7.01(i)) shall
occur for any reason, whether voluntary or involuntary, and be continuing, the
Administrative Agent, upon the direction of the Requisite Lenders, shall by
written notice to the Borrower and each Lender declare all or any portion of the
outstanding principal amount of the Loans and other Obligations to be due and
payable and/or the Commitments (if not theretofore terminated) to be terminated,
whereupon the full unpaid amount of such Loans and other Obligations which shall
be so declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment and/or, as the case may be, the
Commitments shall terminate.
SECTION 7.04. ACTION IF EVENT OF TERMINATION. Upon the occurrence and
continuation of any Event of Termination, the Requisite Lenders may, by notice
from the Administrative Agent to the Borrower and the Lenders (except if an
Event of Termination described in Section 7.01(i) shall have occurred, in which
case the Commitments (if not theretofore terminated) shall, without notice of
any kind, automatically terminate) declare their Commitments terminated, and
upon such declaration the Lenders shall have no further obligation to make any
Loans hereunder. Upon such termination of the Commitments, all accrued fees and
expenses shall be immediately due and payable.
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ARTICLE VIII
THE AGENTS
SECTION 8.01. THE AGENTS. Citicorp North America, Inc. is hereby
appointed to act as Administrative Agent on behalf of the Lenders. Each Lender
that holds First Lien Term Loans or has First Lien Term Commitments and each
holder of any Related Hedging Obligations and each person holding Overdraft
Obligations (in each case, in its capacity as such) hereby irrevocably
designates and appoints the First Lien Collateral Agent as an agent of such
person under this Agreement and each other Loan Document to which the First Lien
Collateral Agent is a party. Each Lender that holds Second Lien Term Loans or
has Second Lien Term Commitments (in each case, in its capacity as such) hereby
irrevocably designates and appoints the Second Lien Collateral Agent as an agent
of such person under this Agreement and each other Loan Document to which the
Second Lien Collateral Agent is a party. Each of the Lenders and each assignee
of any such Lender hereby irrevocably authorizes each of the Agents to take such
actions on behalf of such Lender or assignee and to exercise such powers as are
specifically delegated to such Agent by the terms and provisions hereof and of
the other Loan Documents, together with such actions and powers as are
reasonably incidental thereto. Each Agent is hereby expressly authorized by the
Lenders, without hereby limiting any implied authority, (a) to receive on behalf
of the Lenders all payments of principal of and interest on the Loans, all
payments and all other amounts due to the Lenders hereunder, and promptly to
distribute to each Lender its proper share of each payment so received; (b) to
give notice on behalf of each of the Lenders to any of the Borrower of any
Default specified in this Agreement of which such Agent has actual knowledge
acquired in connection with its agency hereunder; and (c) to distribute to each
Lender copies of all notices, financial statements and other materials delivered
by the Borrower pursuant to this Agreement as received by such Agent. In
addition, without hereby limiting any implied authority, each First Lien Lender
hereby expressly authorizes and directs the First Lien Collateral Agent to enter
into the Collateral Sharing Agreement and each other Loan Document to which it
is a party as its agent, each Second Lien Lender hereby expressly authorizes and
directs the Second Lien Collateral Agent to enter into the Collateral Sharing
Agreement and each other Loan Document to which it is a party as its agent, and
each Lender agrees to be bound by the terms of the Collateral Sharing Agreement
and such other Loan Documents as if it were directly a party thereto.
None of the Agents nor any of their Related Parties shall be liable to
the Lenders as such for any action taken or omitted to be taken by any of them
except to the extent finally judicially determined to have resulted from its or
his or her own gross negligence or willful misconduct, or be responsible for any
statement, warranty or representation herein or the contents of any document
delivered in connection herewith, or be required to ascertain or to make any
inquiry concerning the performance or observance by any Loan Party of any of the
terms, conditions, covenants or agreements contained in any Loan Document. The
Agents shall not be responsible to the Lenders for the due execution,
genuineness, validity, enforceability or effectiveness of this Agreement or any
other Loan Documents or other instruments or agreements. Each Agent shall in all
cases be fully protected in acting, or refraining from acting, in accordance
with written instructions signed by the Requisite Lenders (or, when expressly
required hereby, all the Lenders) and, except as otherwise specifically provided
herein, such instructions and any action or inaction pursuant thereto shall be
binding on all the Lenders. Each Agent shall, in the absence of actual knowledge
to the contrary, be entitled to rely on any instrument or document believed by
it in good faith to be genuine and correct and to have been signed or sent by
the proper person or persons. None of the Agents nor any of their Related
Parties shall have any responsibility to the Loan Parties on account of the
failure of or delay in performance or breach by any Lender of any of its
obligations hereunder or to any Lender on account of the failure of or delay in
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performance or breach by any other Lender or the Loan Parties of any of their
respective obligations hereunder or under any other Loan Document or in
connection herewith or therewith. Each Agent may execute any and all duties
hereunder by or through any of its Related Parties or any sub-agent appointed by
it and shall be entitled to rely upon the advice of legal counsel selected by it
with respect to all matters arising hereunder and shall not be liable for any
action taken or suffered in good faith by it in accordance with the advice of
such counsel.
The Lenders hereby acknowledge that no Agent shall be under any duty
to take any discretionary action permitted to be taken by it pursuant to the
provisions of any Loan Document unless it shall be requested in writing to do so
by the Requisite Lenders.
Subject to the appointment and acceptance of a successor Agent as
provided below, any Agent may resign at any time by notifying the Lenders, the
Issuing Bank and the Borrower. Upon any such resignation, the Requisite Lenders
(with the consent of the Borrower, not to be unreasonably withheld) shall have
the right to appoint a successor; PROVIDED, HOWEVER, that until such time as all
First Lien Obligations have been paid in full in cash or Cash Equivalents, no
such successor Agent shall be appointed without the approval of the Required
First Lien Lenders (with the consent of the Borrower, not to be unreasonably
withheld). If no successor shall have been so appointed by the Requisite Lenders
or the Required First Lien Lenders, as the case may be, and shall have accepted
such appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may (with the consent of the Borrower, not
to be unreasonably withheld), on behalf of the Lenders and the Issuing Bank,
appoint a successor Agent which shall be a bank with an office in New York, New
York, having a combined capital and surplus of at least $500.0 million or an
Affiliate of any such bank. Upon the acceptance of any appointment as an Agent
hereunder by such a successor bank, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After an Agent's resignation hereunder, the provisions of this
Article and Section 9.05 shall continue in effect for its benefit in respect of
any actions taken or omitted to be taken by it while it was acting as an Agent.
With respect to any Loans made by it hereunder, each Agent in its
individual capacity and not as an Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent. In
addition, Agents and their Affiliates may accept deposits from, lend money to
and generally engage in any kind of business with the Borrower or any Subsidiary
or other Affiliate thereof as if any were not Agents.
Each Lender acknowledges that it has, independently and without
reliance upon any Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon any Agent or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
Notwithstanding anything to the contrary in this Agreement, neither
CGMI, as Sole Lead Arranger and Sole Bookrunner, nor Citicorp North America,
Inc., as Syndication Agent, nor Citicorp North America, Inc., as Documentation
Agent, in such respective capacities, shall have any obligations, duties or
responsibilities, or shall incur any liabilities, under this Agreement or any
other Loan Document.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. (a) Except as set forth in Section 9.17,
notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified or
registered mail, sent by telecopy or electronic mail, as follows:
(i) if to the Borrower, to it at Polymer Group, Inc., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇ III (telecopy: 843-329-0415) (e-mail: ▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇), with a
copy to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
attention: H. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, Esq. (telecopy: (▇▇▇) ▇▇▇-▇▇▇▇) (e-mail:
▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇);
(ii) if to the Administrative Agent or the First Lien Collateral
Agent or the Second Lien Collateral Agent, to it at Citicorp North America,
Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇▇▇▇▇ Quezon
(telecopy: (▇▇▇) ▇▇▇-▇▇▇▇) (e-mail: ▇▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇), with
a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq. (telecopy: (▇▇▇) ▇▇▇-▇▇▇▇) (e-mail:
▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇);
(iii) if to the Lead Arranger, to it at Citigroup Global Markets,
Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇▇▇▇▇ Quezon
(telecopy: (▇▇▇) ▇▇▇-▇▇▇▇) (e-mail: ▇▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇), with
a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq. (telecopy: (▇▇▇) ▇▇▇-▇▇▇▇) (e-mail:
▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇);
(iv) if to the Issuing Bank, to it at Citibank, N.A., ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇., ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇ ▇▇▇▇▇▇ (telecopy: (▇▇▇) ▇▇▇-▇▇▇▇)
(e-mail: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇), with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, Esq. (telecopy: (▇▇▇) ▇▇▇-▇▇▇▇) (e-mail: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇);
and
(v) if to a Lender, to it at its address (or telecopy number) set
forth in SCHEDULE 2.01 or its Administrative Questionnaire or in the
Assignment and Acceptance pursuant to which such Lender shall have become a
party hereto.
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service
or sent by telecopy or electronic mail or on the date five Business Days after
dispatch by certified or registered mail if mailed, in each case delivered, sent
or mailed (properly addressed) to such party as provided in this Section 9.01 or
in accordance with the latest unrevoked direction from such party given in
accordance with this Section 9.01. Each Loan Party and Lender hereunder agrees
to notify the Administrative Agent and the Collateral Agent in writing promptly
of any change to the notice information provided above or in SCHEDULE 2.01.
(b) The Borrower shall forthwith on demand indemnify each Lender
against any loss or liability which that Lender or Agent incurs (and that Lender
shall not be liable to the Borrower in any respect) as a consequence of:
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(i) any Person to whom any notice or communication under or in
connection with this Agreement is sent by the Borrower by telecopy failing
to receive that notice or communication (unless directly caused by that
Person's gross negligence or willful default); or
(ii) any telecopy communication which reasonably appears to that
Lender or Agent to have been sent by the Borrower having in fact been sent
by a Person other than the Borrower.
SECTION 9.02. SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by the Loan Parties herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by Lenders hereto and shall survive the making by the
Lenders of the Loans and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent, the Issuing Bank or any Lender may have had
notice or knowledge of any Default or Event of Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any Fee or any other amount payable under this
Agreement or any other Loan Document is outstanding and unpaid or any Letter of
Credit is outstanding and so long as the Commitments have not been terminated.
The provisions of Sections 2.14, 2.15, 2.16, 2.17, 9.05 and 9.16 and Article
VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.03. BINDING EFFECT. Subject to Section 4.01, this Agreement
shall become effective when it shall have been executed by the Borrower and the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective permitted successors and
assigns.
SECTION 9.04. SUCCESSORS AND ASSIGNS. (a)Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the permitted successors and assigns of such party (including any
Affiliate of the Issuing Bank that issues any Letter of Credit). All covenants,
promises and agreements by or on behalf of the Borrower, the Agents or the
Lenders that are contained in this Agreement shall bind and inure to the benefit
of their respective successors and assigns. Nothing in this Agreement, expressed
or implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
to the extent provided in clause (f) below and, solely to the extent expressly
contemplated hereby, the Related Parties of each of the Agents, the Issuing Bank
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Each Lender may assign to one or more assignees all or a
portion of its interests, rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans at the time owing to it);
PROVIDED, HOWEVER, that (i) except in the case of an assignment to a Lender or a
Lender Affiliate or in connection with the initial syndication of the
Commitments and Loans, the Borrower and the Administrative Agent (and, in the
case of any assignment of a Revolving Credit Commitment or any Lender's
obligations in respect of its LC Exposure or Swingline Exposure, the Issuing
Bank and the Swingline Lender) must give their prior written consent to such
assignment (which consent shall not be unreasonably withheld or delayed), (ii)
except in the case of an assignment
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to a Lender, a Lender Affiliate or a Federal Reserve Bank or in connection with
the initial syndication of the Commitments and Loans, the amount of the
Commitment or Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not be less than, in
the case of the Term Loans, $1.0 million and increments of $1.0 million in
excess thereof and, in the case of the Revolving Loans, $5.0 million and
increments of $1.0 million in excess thereof (or (A) if the aggregate amount of
the Commitment or Loans of the assigning Lender is a lesser amount, the entire
amount of such Commitment or Loans, or (B) in any other case, such lesser amount
as the Borrower and the Administrative Agent otherwise agree), (iii) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Agreement, except that
this clause (iii) shall not be construed to prohibit the assignment of a
proportionate part of all the assigning Lender's rights and obligations in
respect of one Class of Commitments and Loans, (iv) except in the case of the
assignment to an Affiliate of such Lender or an assignment required to be made
pursuant to Section 2.20, the parties to each such assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500, and (v) the assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; PROVIDED, FURTHER, that any consent of the Borrower otherwise
required under this paragraph shall not be required if a Default or an Event of
Default has occurred and is continuing. Subject to acceptance and recording
pursuant to paragraph (e) of this Section 9.04, from and after the effective
date specified in each Assignment and Acceptance, which effective date shall be
at least five Business Days after the execution thereof (unless otherwise
determined by the Administrative Agent), (A) the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and (B) the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all 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 2.14, 2.15, 2.16, 2.17 and
9.05 with respect to facts and circumstances occurring prior to the effective
date of such assignment, as well as to any Fees accrued for its account and not
yet paid). Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (f) of this Section.
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Commitment, and the outstanding balances of its Loans and participations in
Swingline Loans, in each case without giving effect to assignments thereof which
have not become effective, are as set forth in such Assignment and Acceptance,
(ii) except as set forth in (i) above, 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 Loan Document or any other
instrument or document furnished pursuant hereto, or the financial condition of
the Borrower or any Subsidiary or the performance or observance by the Borrower
or any Subsidiary of any of its obligations under this Agreement, any other Loan
Document or any other instrument or document furnished pursuant hereto; (iii)
such assignee represents and warrants that it is legally authorized to enter
into such Assignment and Acceptance; (iv) such assignee confirms that it has
received a copy of this
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Agreement, together with copies of the most recent financial statements, if any,
delivered pursuant to Section 5.01 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; (v) such assignee will independently and
without reliance upon either 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; (vi) such assignee appoints and authorizes each Agent to
take such action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to such Agent by the terms hereof, together with such
powers as are reasonably incidental thereto; (vii) such assignee agrees that it
will perform in accordance with their terms all the obligations which by the
terms of this Agreement are required to be performed by it as a Lender; and
(viii) SCHEDULE 2.01 shall be deemed to be amended to reflect the assigning
Lender thereunder and the assignee thereunder after giving effect thereto.
(d) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements, and participations in
Swingline Loans, owing to, each Lender pursuant to the terms hereof from time to
time (the "REGISTER"). Except to the extent inconsistent with Section 2.07(d),
the entries in the Register shall be conclusive and the Borrower, the Agents,
the Issuing Bank and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of the Borrower, the Issuing
Bank, the Swingline Lender and the Administrative Agent to such assignment, the
Administrative Agent shall (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt
notice thereof to the Lenders. No assignment shall be effective unless it has
been recorded in the Register as provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower, the
Swingline Lender, the Issuing Bank or the Administrative Agent, sell
participations to any Person (other than a natural person or the Borrower or any
of the Borrower's Affiliates or Subsidiaries) (each, a "PARTICIPANT") in all or
a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it); PROVIDED, HOWEVER, that
(i) such Lender's obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) each Participant shall be entitled to the
benefit of the cost protection provisions contained in Sections 2.14, 2.15, 2.16
and 2.17 and the provisions of Section 5.01 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section 9.04 (PROVIDED that no participant shall be entitled to receive any
greater amount pursuant to such Sections than the Lender would have been
entitled to receive in respect of the interest transferred unless either (x)
such transfer to such Participant is made with the Borrower's prior written
consent (not to be unreasonably withheld) or (y) a Default or an Event of
Default has occurred and is continuing at the time of such participation), and
(iv) the Borrower, the Agents, the Issuing Bank and the Lenders shall continue
to deal solely and directly with
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such Lender in connection with such Lender's rights and obligations under this
Agreement, and such Lender shall retain the sole right (which each Lender agrees
will not be limited by the terms of any participation agreement or other
agreement with a participant) to enforce the Loan Documents and to approve any
amendment, modification or waiver of any provision of the Loan Documents (other
than, without the consent of the Participant, amendments, modifications or
waivers described in clauses (i), (iv) and (v) of Section 9.08(c) that affect
such Participant). To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 9.06 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.20 as though it were a
Lender.
(g) Any Lender or participant may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 9.04, disclose to the assignee or participant or proposed assignee
or participant any information relating to the Borrower and its Subsidiaries
furnished to such Lender by or on behalf of any of the Loan Parties; PROVIDED
that, prior to any such disclosure of information designated by the Borrower as
confidential, each such assignee or participant or proposed assignee or
participant shall execute a confidentiality agreement in form and substance
consistent with provisions of Section 9.16.
(h) Any Lender, without the consent of or notice to the Borrower
or the Administrative Agent, may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank and this Section 9.04 shall not apply to
any such pledge or assignment of a security interest; PROVIDED that (x) no such
pledge or assignment of a security interest shall release a Lender from any of
its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto and (y) any foreclosure or similar action shall be
subject to the provisions of this Section 9.04(b) concerning assignments and
shall not be effective to transfer any rights under this Agreement or in any
Loan, Note or other instrument evidencing the rights of a Lender under this
Agreement until the requirements of Section 9.04(b) concerning assignments are
fully satisfied. In order to facilitate such a pledge or assignment, the
Borrower shall, at the request of the assigning Lender, duly execute and deliver
to the assigning Lender a promissory note or notes evidencing the Loans made to
the Borrower by the assigning Lender hereunder.
(i) The Borrower shall not assign or delegate any of its rights or
duties hereunder without the prior written consent of the Administrative Agent
and each Lender, and any attempted assignment without such consent shall be null
and void.
SECTION 9.05. EXPENSES; INDEMNITY. (a) The Borrower agrees to pay (i)
all reasonable out-of-pocket expenses incurred by the Administrative Agent, the
Collateral Agents, CGMI and their Affiliates, including the reasonable fees,
charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp, counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement and the other Loan Documents or in connection with any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the
transactions hereby contemplated shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Issuing Bank in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred
by the Lead Arranger, the Administrative Agent, the Collateral Agents, the
Issuing Bank or any Lender in connection with the enforcement or protection of
its rights in connection with this Agreement (including its rights under this
Section), the other Loan Documents or the Loans made or Letters of Credit issued
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters
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of Credit, and, in connection with any such enforcement or protection, the fees,
charges and disbursements of any other counsel for the Administrative Agent, the
Collateral Agents, the Lead Arranger, the Issuing Bank or any Lender; PROVIDED,
HOWEVER, that the Borrower shall not be obligated to pay for expenses incurred
by a Lender in connection with the assignment of Loans to an assignee Lender
(except pursuant to Section 2.20) or the sale of Loans to a participant pursuant
to Section 9.04.
(b) The Borrower agrees to indemnify the Administrative Agent, the
Collateral Agents, the Syndication Agent, the Documentation Agent, the Lead
Arranger, the Issuing Bank, each Lender, each Affiliate of any of the foregoing
Persons and each of their respective Related Parties (each such Person being
called an "INDEMNITEE") against, and to hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related reasonable expenses,
including reasonable counsel fees, charges and disbursements, incurred by or
asserted against any Indemnitee arising out of, in any way connected with, or as
a result of (i) the execution or delivery of this Agreement or any other Loan
Document or any agreement or instrument contemplated thereby, the performance by
the parties hereto or thereto of their respective obligations thereunder or the
consummation of the Transactions and the other transactions contemplated
thereby, (ii) the use of the proceeds of the Loans or Letters of Credit
(including any refusal by the Issuing Bank to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto, or (iv) any actual or alleged
presence or Release of Hazardous Materials at, on, under or from any property
owned or operated by the Borrower or any of the Subsidiaries, or any
Environmental Liability or Environmental Claim related in any way to the
Borrower or the Subsidiaries; PROVIDED that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related reasonable expenses are finally judicially determined to
have arisen by reason of the Indemnitee's gross negligence or willful
misconduct.
(c) To the extent that the Borrower fails to promptly pay any
amount to be paid by it to any Agent, the Lead Arranger, the Issuing Bank or the
Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to such Agent, the Lead Arranger, the Issuing Bank or
the Swingline Lender, as the case may be, such Lender's PRO RATA share
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount (other than syndication expenses);
PROVIDED that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the applicable Agent, the Lead Arranger, the Issuing Bank or the
Swingline Lender in its capacity as such; PROVIDED further, however, that to the
extent any Issuing Bank or Swingline Lender is entitled to indemnification under
this Section 9.05, to the extent such indemnification relates solely to such
Issuing Bank's or such Swingline Lender's acting in such capacity the
indemnification provided for in this Section 9.05 will be the obligation solely
of the Revolving Lenders. For purposes hereof, a Lender's "PRO RATA share" shall
be determined based upon its share of the sum of the total Revolving Credit
Exposures, outstanding Term Loans and unused Commitments at the time.
(d) To the extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a
result of, this Agreement, any other Loan Document or any other agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of Credit
or the use of the proceeds thereof.
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(e) The provisions of this Section 9.05 shall remain operative and
in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the invalidity
or unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of the Administrative Agent
or any Lender. All amounts due under this Section 9.05 shall be payable on
written demand therefor.
SECTION 9.06. RIGHT OF SETOFF. If an Event of Default or Event of
Termination shall have occurred and be continuing, each Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender to or for the credit or the account of any Loan Party
against any of and all the obligations of such Loan Party now or hereafter
existing under this Agreement and other Loan Documents held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement or such other Loan Document and although such obligations may be
unmatured. In connection with exercising its rights pursuant to the previous
sentence, a Lender may at any time use any Loan Party's credit balances with the
Lender to purchase at the Lender's applicable spot rate of exchange any other
currency or currencies which the Lender considers necessary to reduce or
discharge any amount due by such Loan Party to the Lender, and may apply that
currency or those currencies in or towards payment of those amounts. The rights
of each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after making
any such setoff.
SECTION 9.07. APPLICABLE LAW. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. WAIVERS; AMENDMENT. (a) No failure or delay of any
Agent, the Issuing Bank or any Lender in exercising any power or right hereunder
or under any Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Agents, the Issuing Bank and the Lenders hereunder and under
the other Loan Documents are cumulative and are not exclusive of any rights or
remedies which they would otherwise have. No waiver of any provision of this
Agreement or any other Loan Document or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan or issuance of a Letter of
Credit shall not be construed as a waiver of any Default or Event of Default
regardless of whether an Agent, any Lender or the Issuing Bank may have had
notice or knowledge of such Default or Event of Default at the time. No notice
or demand on the Borrower in any case shall entitle the Borrower to any other or
further notice or demand in similar or other circumstances.
(b) Subject to Sections 9.08(c), 9.08(d) and 9.08(e), no
amendment, modification, termination or waiver of any provision of any Loan
Document, or consent to any departure by any Loan Party therefrom, shall in any
event be effective without the written concurrence of the Requisite Lenders.
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(c) Subject to Section 9.08(e), without the written consent of
each Lender that would be directly adversely affected thereby (whose consent
shall be sufficient therefor without the consent of the Requisite Lenders), no
amendment, modification, termination, waiver or consent shall be effective if
the effect thereof would:
(i) extend the scheduled final maturity of any Loan or Note;
(ii) extend the stated expiration date of any Letter of Credit
beyond the Revolving Credit Maturity Date;
(iii) reduce or forgive the rate of interest on any Loan (other than
any waiver of any increase in the interest rate applicable to any Loan
pursuant to Section 2.08) or any fee payable hereunder, it being understood
that any amendment or modification to the financial definitions in this
Agreement shall not constitute a reduction in the rate of interest for
purposes of this clause (iii);
(iv) extend the time for payment of any such interest or fees;
(v) reduce or forgive the principal amount of any Loan or any
reimbursement obligation in respect of any Letter of Credit;
(vi) amend, modify, terminate or waive any provision of Section
9.08 (except for technical amendments with respect to additional extensions
of credit pursuant to this Agreement consented to by the Requisite Lenders
(and the Required Second Lien Lenders if required by the terms hereof)
which afford the protections to such additional extensions of credit of the
type provided to the Revolving Credit Commitments and/or the relevant Class
of Term Loans on the Effective Date);
(vii) amend the definition of "Requisite Lenders" or "Pro Rata
Percentage"; PROVIDED, with the consent of the Requisite Lenders (and the
Required Second Lien Lenders if required by the terms thereof), additional
extensions of credit pursuant hereto may be included in the determination
of "Requisite Lenders" or "Pro Rata Percentage" on substantially the same
basis as the Revolving Credit Commitments, Revolving Loans, relevant Class
of Term Commitments and/or relevant Class of Term Loans, are included on
the Effective Date;
(viii) except as expressly provided in the Loan Documents, release
all or substantially all of the Collateral or all or substantially all of
the Subsidiary Loan Parties from the Guarantee or subordinate the Liens
under any Security Document;
(ix) consent to the assignment or transfer by any Loan Party of any
of its rights and obligations under any Loan Document; or
(x) waive, amend or modify the provisions of Section 9.08(h) or
2.05(g) or Section 3.01 of the Collateral Sharing Agreement.
(d) Subject to Section 9.08(e), no amendment, modification,
termination, waiver or consent with respect to any provision of the Loan
Documents, or consent to any departure by any Loan Party therefrom, shall:
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(i) increase any Revolving Credit Commitment of any Lender over
the amount thereof then in effect without the consent of such Lender;
PROVIDED no amendment, modification, termination, waiver or consent with
respect to any condition precedent, covenant, Default or Event of Default
shall constitute an increase in any Revolving Credit Commitment of any
Lender;
(ii) amend, modify, terminate or waive any provision hereof
relating to the Swingline Sublimit or the Swingline Loans without the
consent of Swingline Lender;
(iii) amend the definition of "Requisite Class Lenders" without the
consent of Requisite Class Lenders of each Class; PROVIDED, with the
consent of the Requisite Lenders (and the Required Second Lien Lenders if
required by the terms hereof), additional extensions of credit pursuant
hereto may be included in the determination of such "Requisite Class
Lenders" on substantially the same basis as the Revolving Credit
Commitments, Revolving Loans, Term Commitments and/or the relevant Class of
Term Loans are included on the Effective Date;
(iv) alter the required application of any repayments or
prepayments as between Classes or Priority Classes pursuant to Section 2.05
or Section 2.11 without the consent of Requisite Class Lenders of each
Class or the Requisite First Lien Lenders or Requisite Second Lien Lenders
of each Priority Class, in any case which is being allocated a different
repayment or prepayment as a result thereof; PROVIDED the Requisite Lenders
may waive, in whole or in part, any prepayment so long as the application,
as between Classes and Priority Classes, of any portion of such prepayment
is still required to be made is not altered and, if additional extensions
of term credit under this Agreement consented to by the Requisite Lenders
(and the Required Second Lien Lenders if required by the terms hereof) are
made, such new term loans may be included on a PRO RATA basis in the
various prepayments required pursuant to Section 2.05 subject to the
ordering of prepayments set forth in 2.05(e);
(v) amend, modify, terminate or waive any obligation of the
Revolving Lenders relating to the issuance of or purchase of participations
in Letters of Credit without the written consent of Administrative Agent
and of Issuing Bank;
(vi) amend, modify, terminate or waive any provision of Section 8
as the same applies to any Agent, or any other provision hereof as the same
applies to the rights or obligations of any Agent, in each case without the
consent of such Agent;
(vii) amend, modify, terminate or waive any provision of any Loan
Document specifying the number or percentage of Lenders (or Lenders of any
Class) required to waive, amend or modify any rights thereunder or make any
determination to grant any consent thereunder without the written consent
of each Lender (or each Lender of such Class, as the case may be);
(viii) expressly amend, modify, supplement or waive any condition
precedent in Section 4.02 to any Revolving Credit Borrowing without the
written consent of the Requisite Revolving Lenders;
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(ix) increase the maximum duration of Interest Periods hereunder
without the consent of all Lenders;
(x) without the consent of the Required First Lien Lenders or the
Required Second Lien Lenders, as the case may be, reduce the amount of, or
extend the date of, any scheduled payment on First Lien Term Loans or
Second Lien Term Loans, as the case may be, required to be made, or change
the order of application of payments or prepayments under Section 2.05
among the First Lien Term Loans, the Revolving Commitments and the Second
Lien Term Loans;
(xi) change any provisions of any Loan Document in a manner that by
its terms adversely affects the rights in respect of payments due to
Lenders holding Loans of any Priority Class differently than those holding
Loans of any other Priority Class without the written consent of Lenders
holding a majority in interest of the outstanding Loans and unused
Commitments of such adversely affected Priority Class;
(xii) waive, amend or modify this Agreement in such a manner that by
its terms affects the rights or duties under this Agreement of the Lenders
holding First Lien Loans (but not the lenders holding Second Lien Term
Loans) or the Lenders holding Second Lien Term Loans (but not the lenders
holding First Lien Loans) only by an agreement or agreements in writing
entered into by the Borrower and the requisite percentage in interest of
the affected Priority Class of Lenders that would be required to consent
thereto under this Section if such Priority Class of Lenders were the only
Priority Class of Lenders hereunder at the time;
(xiii) except pursuant to Section 9.08(h), increase the aggregate
amount of First Lien Commitments (or increase the principal amount of
outstanding First Lien Loans) without the prior written consent of the
Required Second Lien Lenders; or
(xiv) waive, amend or modify the Collateral Sharing Agreement except
pursuant to an agreement or agreements in writing entered into among the
Collateral Agents, the Administrative Agent, the Required First Lien
Lenders and the Required Second Lien Lenders (without the consent of any
Loan Party, so long as such amendment, waiver or modification does not
impose any additional duties or obligations on any of the Loan Parties or
alter or impair any right of any Loan Party under the Loan Documents).
(e) If, in connection with any proposed change, waiver, discharge
or termination of or to any of the provisions of this Agreement (other than as
contemplated by Section 9.08(c)(i), (iv) and (v) above), the consent of the
Requisite Lenders is obtained but the consent of one or more of such other
Lenders whose consent is required is not obtained, then the Borrower shall have
the right, so long as all Non-Consenting Lenders whose individual consent is
required are treated as described in either clause (i) or (ii) below, to either
(i) replace each such Non-Consenting Lender or Lenders (or, at the option of the
Borrower if the respective Lender's consent is required with respect to less
than all Classes of Loans (or related Commitments), to replace only the
Commitments and/or Loans of the respective Non-Consenting Lender that gave rise
to the need to obtain such Lender's individual consent) with one or more
assignees pursuant to, and with the effect of an assignment under, Section 2.20
so long as at the time of such replacement, each such assignee consents to the
proposed change, waiver, discharge or termination or (ii) terminate such
Non-Consenting Lender's Commitment (if such Lender's consent is required as a
result of its Commitment) and/or repay each Class of outstanding
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Loans of such Lender that gave rise to the need to obtain such Lender's consent
and/or cash collateralize its LC Exposure in accordance with this Agreement;
PROVIDED that, unless the Commitments that are terminated and Loans that are
repaid pursuant to the preceding clause (ii) are immediately replaced in full at
such time through the addition of new Lenders or the increase of the Commitments
and/or outstanding Loans of existing Lenders (who in each case must specifically
consent thereto), then in the case of any action pursuant to the preceding
clause (ii), the Requisite Lenders (determined after giving effect to the
proposed action) shall specifically consent thereto. In addition, any waiver,
amendment or modification of this Agreement that by its terms affects the rights
or duties under this Agreement of any Class of Lenders (but not any other Class
of Lenders) may be effected by an agreement or agreements in writing entered
into by the Borrower and the requisite percentage in interest of the affected
Class of Lenders that would be required to consent thereto under this Section
9.08 if such Class of Lenders were the only Class of Lenders hereunder at the
time.
(f) Without the consent of any other Person, the Loan Parties and
the Administrative Agent and/or Collateral Agents may (in their respective sole
discretion, or shall, to the extent required by any Loan Document) enter into
any amendment, modification or waiver of any Loan Document, or enter into any
new agreement or instrument, to effect the granting, perfection, protection,
expansion or enhancement of any security interest in any Collateral or
additional property to become Collateral for the benefit of the Secured Parties,
or as required by local law to give effect to, or protect any security interest
for the benefit of the Secured Parties, in any property or so that the security
interests therein comply with applicable law.
(g) Without the consent of any other Person (and notwithstanding
the provisions of Section 8.01), the Borrower, the Administrative Agent and the
Collateral Agents may enter into any amendment, modification or waiver of any
Loan Document, or enter into any new agreement or instrument, which does not
materially adversely effect the rights of the Lenders or the Issuing Bank, to
effect the replacement of the Second Lien Collateral Agent with a successor
Agent.
(h) Notwithstanding anything in Section 9.08 to the contrary, this
Agreement and the other Loan Documents may be amended at any time, and from time
to time, after the Closing Date to increase the aggregate Revolving Credit
Commitments and/or to establish additional First Lien Term Loans under this
Agreement, at the discretion of the Borrower and the Lead Arranger (the
"GREENSHOE OPTION"), by an agreement in writing entered into by the Borrower,
the Administrative Agent, the Collateral Agents, the Lead Arranger and each
Person (including any Lender) that shall agree to provide such Commitment and/or
make a First Lien Term Loan (and each such Person that shall not already be a
Lender shall, at the time such agreement becomes effective, become a Lender with
the same effect as if it had originally been a Lender under this Agreement with
the Commitment and/or First Lien Term Loans set forth in such agreement);
PROVIDED that (i) the aggregate principal amount of the additional First Lien
Term Loans and the new Revolving Credit Commitments established pursuant to this
paragraph shall not exceed $25,000,000 in the aggregate or a lesser amount in
integral multiples of $10.0 million, (ii) no Default or Event of Default shall
have occurred and be continuing at the time of such increase, (iii) after giving
effect to such increase, the Borrower shall be in compliance with the Financial
Covenants, and the Total Leverage Ratio shall not exceed the lesser of 5.0:1.0
and the ratio which is 0.25:1.0 less than the maximum Total Leverage Ratio
permitted by Section 6.13 for the most recently ended Test Period, (v) no
Commitment of any Lender shall be increased without the consent of such Lender
and (vi) if the First Lien Term Loans are increased pursuant to the Greenshoe
Option, the remaining scheduled payments set forth in Section 2.05(d) shall be
increased pro rata. The Loans and Commitments established pursuant to this
paragraph shall constitute Loans and Commitments under, and shall be entitled to
all the benefits afforded by, this Agreement
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and the other Loan Documents, and shall, without limiting the foregoing, benefit
equally and ratably from the Guarantees and security interests created by the
Security Documents.
(i) In connection with any amendment to this Agreement which
reduces the Applicable Rate with respect to any First Lien Term Loans at any
time prior to the second anniversary of the Effective Date, the Borrower shall
pay a premium equal to (x) 2.00% of the principal amount of the First Lien Term
Loans with respect to which such reduction is made, if such reduction is made
prior to the first anniversary of the Effective Date or (y) 1.00% of the
principal amount of the First Lien Term Loans with respect to which such
reduction is made, if such reduction is made on or after the first anniversary
of the Effective Date and prior to the second anniversary of the Effective Date.
All such premium payments shall be paid to the Administrative Agent for the
ratable benefit of the affected Lenders.
SECTION 9.09. INTEREST RATE LIMITATION. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively, the "CHARGES"), shall exceed
the maximum lawful rate (the "MAXIMUM RATE") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan or
participation in accordance with applicable law, the rate of interest payable in
respect of such Loan or participation hereunder, together with all Charges
payable in respect thereof, shall be limited to the Maximum Rate and, to the
extent lawful, the interest and Charges that would have been payable in respect
of such Loan or participation but were not payable as a result of the operation
of this Section shall be cumulated and the interest and Charges payable to such
Lender in respect of other Loans or participations or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.10. ENTIRE AGREEMENT. This Agreement and the other Loan
Documents constitute the entire contract between the parties relative to the
subject matter hereof. Any previous agreement among the parties with respect to
the subject matter hereof is superseded by this Agreement and the other Loan
Documents; PROVIDED that any letter agreement relating to the subject matter
hereof between the Borrower and a Lender shall remain effective in accordance
with its terms. Nothing in this Agreement or in the other Loan Documents,
expressed or implied, is intended to confer upon any party other than the
parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
-106-
SECTION 9.12. SEVERABILITY. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 9.13. COUNTERPARTS. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together shall
constitute a single contract, and shall become effective as provided in Section
9.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 9.14. HEADINGS. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) The
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the Collateral Agents, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
the other Loan Documents against the Borrower or its properties in the courts of
any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the other Loan
Documents in any New York State or Federal court referred to in paragraph (a) of
this Section. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.16. CONFIDENTIALITY. No Agent or any Lender may disclose to
any Person any confidential, proprietary or non-public information of the Loan
Parties furnished to the Agents or the Lenders by the Loan Parties (such
information being referred to collectively herein as the "LOAN PARTY
INFORMATION"), except that each of the Agents and the Lenders may disclose Loan
Party Information (i) to its and its Affiliates' employees, officers, directors,
agents, accountants, attorneys and other
-107-
advisors (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Loan Party Information and
instructed to keep such Loan Party Information confidential on substantially the
same terms as provided herein), (ii) to the extent requested by any regulatory
authority, (iii) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (iv) to any other party to this
Agreement, (v) in connection with the exercise of any remedies hereunder or
under any other Loan Document or any suit, action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (vi) subject to an agreement containing provisions substantially the
same as those of this Section 9.16, to any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement, (vii) to the extent such Loan Party Information (A) is or
becomes generally available to the public on a nonconfidential basis other than
as a result of a breach of this Section 9.16 by such Agent or such Lender, or
(B) is or becomes available to such Agent or such Lender on a nonconfidential
basis from a source other than the Loan Parties and (viii) with the consent of
the Loan Parties. Nothing in this provision shall imply that any party has
waived any privilege it may have with respect to advice it has received.
SECTION 9.17. CITIGROUP DIRECT WEBSITE COMMUNICATIONS.
(a) DELIVERY. (i) Each Loan Party hereby agrees that it will provide
to the Administrative Agent all information, documents and other materials that
it is obligated to furnish to the Administrative Agent pursuant to this
Agreement and any other Loan Document, including, without limitation, all
notices, requests, financial statements, financial and other reports,
certificates and other information materials, but excluding any such
communication that (A) relates to a request for a new, or a conversion of an
existing, Borrowing or other extension of credit (including any election of an
interest rate or interest period relating thereto), (B) relates to the payment
of any principal or other amount due under this Agreement prior to the scheduled
date therefor, (C) provides notice of any Default or Event of Default under this
Agreement or (D) is required to be delivered to satisfy any condition precedent
to the effectiveness of this Agreement and/or any borrowing or other extension
of credit hereunder (all such non-excluded communications collectively, the
"COMMUNICATIONS"), by transmitting the Communications in an electronic/soft
medium in a format reasonably acceptable to the Administrative Agent to
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇. In addition, each Loan Party agrees to continue
to provide the Communications to the Administrative Agent in the manner
specified in this Agreement or any other Loan Document but only to the extent
reasonably requested by the Administrative Agent. Nothing in this Section 9.17
shall prejudice the right of the Agents, Syndication Agent, the Documentation
Agent, the Lead Arranger or any Lender or any Loan Party to give any notice or
other communication pursuant to this Agreement or any other Loan Document in any
other manner specified in this Agreement or any other Loan Document.
(ii) The Administrative Agent agrees that receipt of the
Communications by the Administrative Agent at its e-mail address set forth above
shall constitute effective delivery of the Communications to the Administrative
Agent for purposes of the Loan Documents. Each Lender agrees that notice to it
(as provided in the next sentence) specifying that the Communications have been
posted to the Platform (as defined below) shall constitute effective delivery of
the Communications to such Lender for purposes of the Loan Documents. Each
Lender agrees (A) to notify the Administrative Agent in writing (including by
electronic communication) from time to time of such Lender's e-mail address to
which the foregoing notice may be sent by electronic transmission and (B) that
the foregoing notice may be sent to such e-mail address.
-108-
(b) POSTING. Each Loan Party further agrees that the
Administrative Agent may make the Communications available to the Lenders by
posting the Communications on Intralinks or a substantially similar electronic
transmission system (the "PLATFORM").
(c) The Platform is provided "as is" and "as available." The Agent
Parties (as defined below) do not warrant the accuracy or completeness of the
Communications, or the adequacy of the Platform and expressly disclaim liability
for errors or omissions in the communications. No warranty of any kind, express,
implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third
party rights or freedom from viruses or other code defects, is made by any Agent
Party (as defined below) in connection with the Communications or the Platform.
In no event shall the Administrative Agent or any of its affiliates or any of
their respective officers, directors, employees, agents advisors or
representatives (collectively, "AGENT PARTIES") have any liability to the Loan
Parties, any Lender or any other person or entity for damages of any kind,
including, without limitation, direct or indirect, special, incidental or
consequential damages, losses or expenses (whether in tort, contract or
otherwise) arising out of any Loan Party's or the Administrative Agent's
transmission of communications through the internet, except to the extent the
liability of any Agent Party is found in a final non-appealable judgment by a
court of competent jurisdiction to have resulted from such Agent Party's gross
negligence or willful misconduct.
SECTION 9.18. COLLATERAL AGENT AS JOINT CREDITOR. Each of the Loan
Parties and each of the Lenders agree that the First Lien Collateral Agent and
Second Lien Collateral Agent, as applicable, shall be the joint creditor
(together with the relevant Lender) of each and every obligation of the Loan
Parties towards each of the Lenders under or in connection with the Loan
Documents, and that accordingly each Collateral Agent will have its own
independent right to demand performance by the Loan Parties of those
obligations. However, any discharge of any such obligation to Collateral Agents
or the relevant Lender shall, to the same extent, discharge the corresponding
obligation owing to the other.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
POLYMER GROUP, INC.,
as Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
Title: Chief Financial Officer
-109-
CITICORP NORTH AMERICA, INC.,
as Administrative Agent, Documentation
Agent, First Lien Collateral Agent,
Second Lien Collateral Agent and
Syndication Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
CITIGROUP GLOBAL MARKETS INC.,
as Lead Arranger
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Director
[GENERAL ELECTRIC CAPITAL CORPORATION],
as Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
MARINER LDC, as Lender
By: Mariner Investment Group
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇
Title: Treasurer
BEAR ▇▇▇▇▇▇▇ INVESTMENT PRODUCTS INC.,
as Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
-2-
EXHIBIT A
ADMINISTRATIVE DETAILS FORM
DEAL NAME: POLYMER GROUP, INC.
GENERAL INFORMATION
YOUR INSTITUTIONS LEGAL NAME:
TAX WITHHOLDING:
NOTE: TO AVOID THE POTENTIAL OF HAVING INTEREST INCOME WITHHELD, ALL INVESTORS
MUST DELIVER ALL CURRENT AND APPROPRIATE TAX FORMS.
Tax ID #:
-------------------
SUB-ALLOCATION: (UNITED STATES ONLY)
NOTE: IF YOUR INSTITUTION IS SUB-ALLOCATING ITS ALLOCATION, PLEASE FILL OUT THE
INFORMATION BELOW. ADDITIONALLY, AN ADMINISTRATIVE DETAIL FORM IS REQUIRED FOR
EACH LEGAL ENTITY. EXECUTION COPIES (E.G. CREDIT AGREEMENT/ASSIGNMENT AGREEMENT)
WILL BE SENT FOR SIGNATURE TO THE SUB-ALLOCATION CONTACT BELOW.
Sub-Allocated Amount: $
-------------------
Signing Credit Agreement? Yes No
Coming In Via Assignment? Yes No
SUB-ALLOCATION CONTACT:
NAME:
Address: E-mail:
----------------------------------- ---------------
-----------------------------------
City: State: Phone #:
---------- --------------- ---------------
Postal Code: Country: Fax #:
---------- --------------- ---------------
CONTACT LIST
BUSINESS/CREDIT MATTERS: (RESPONSIBLE FOR TRADING AND CREDIT APPROVAL PROCESS OF
THE DEAL)
Primary:
NAME:
Address: E-mail:
----------------------------------- ---------------
-----------------------------------
City: State: Phone #:
---------- --------------- ---------------
Postal Code: Country: Fax #:
---------- --------------- ---------------
Backup:
NAME:
Address: E-mail:
----------------------------------- ---------------
-----------------------------------
City: State: Phone #:
---------- --------------- ---------------
Postal Code: Country: Fax #:
---------- --------------- ---------------
Admin Details can be submitted online, via Citigroup's Global Loans Web Site.
Send an e-mail to ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ with your contact information
and the deal name to request a user ID/password to submit/modify Admin Details
online.
-3-
ADMINISTRATIVE DETAILS FORM
ADMIN/OPERATIONS MATTERS: (RESPONSIBLE FOR INTEREST, FEE, PRINCIPAL PAYMENT,
BORROWING & PAY-DOWNS)
Primary:
NAME:
Address: E-mail:
----------------------------------- ---------------
-----------------------------------
City: State: Phone #:
---------- --------------- ---------------
Postal Code: Country: Fax #:
---------- --------------- ---------------
Backup:
NAME:
Address: E-mail:
----------------------------------- ---------------
-----------------------------------
City: State: Phone #:
---------- --------------- ---------------
Postal Code: Country: Fax #:
---------- --------------- ---------------
CLOSING CONTACT: (RESPONSIBLE FOR DEAL CLOSING MATTERS)
NAME:
Address: E-mail:
----------------------------------- ---------------
-----------------------------------
City: State: Phone #:
---------- --------------- ---------------
Postal Code: Country: Fax #:
---------- --------------- ---------------
DISCLOSURE CONTACT: (RECEIVES DISCLOSURE MATERIALS, SUCH AS FINANCIAL REPORTS,
VIA OUR WEB SITE)
NAME:
Address: E-mail:
----------------------------------- ---------------
-----------------------------------
City: State: Phone #:
---------- --------------- ---------------
Postal Code: Country: Fax #:
---------- --------------- ---------------
Admin Details can be submitted online, via Citigroup's Global Loans Web Site.
Send an e-mail to ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ with your contact information
and the deal name to request a user ID/password to submit/modify Admin Details
online.
-4-
ADMINISTRATIVE DETAILS FORM
ROUTING INSTRUCTIONS
ROUTING INSTRUCTIONS FOR THIS DEAL:
CORRESPONDENT BANK:
City: State: ACCOUNT NAME:
---------- ---------- -----------------
Postal Code: ACCOUNT#:
------------ -----------------
Payment Type: BENEF. ACCT. NAME:
-----------------
/ /Fed / /ABA / /CHIPS BENEF. ACCT. #:
-----------------
ABA/CHIPS #:
REFERENCE:
------------------------------
Attention:
------------------------------
ADMINISTRATIVE AGENT INFORMATION
BANK LOANS SYNDICATION - AGENT CONTACT AGENT WIRING INSTRUCTIONS
Name: ▇▇▇▇▇▇▇▇▇ Quezon
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Citibank, N.A.
Fax: ▇▇▇-▇▇▇-▇▇▇▇ ABA #: 021-00-0089
Acct Name:
Address: ▇ ▇▇▇▇▇ ▇▇▇ Medium Term Finance
Suite 200 Acct #: 36852248
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INITIAL FUNDING STANDARDS: LIBOR - Fund 2 days after rates are set.
Admin Details can be submitted online, via Citigroup's Global Loans Web Site.
Send an e-mail to ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ with your contact information
and the deal name to request a user ID/password to submit/modify Admin Details
online.
-5-
EXHIBIT B
BORROWING REQUEST
To: CITICORP NORTH AMERICA, INC.
as Administrative Agent for the Lenders
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ Quezon
[Date]
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of April 27, 2004
(the "CREDIT AGREEMENT"), among POLYMER GROUP, INC., a Delaware corporation (the
"BORROWER"), the guarantors from time to time a party thereto, the financial
institutions listed on SCHEDULE 2.01 thereto, as such Schedule may from time to
time be supplemented and amended (the "LENDERS"), CITICORP NORTH AMERICA, INC.,
as administrative agent (in such capacity, the "ADMINISTRATIVE AGENT") for the
Lenders, as documentation agent (in such capacity, the "DOCUMENTATION AGENT"),
as syndication agent (in such capacity, the "SYNDICATION AGENT"), as collateral
agent for the First Lien Secured Parties (in such capacity, the "FIRST LIEN
COLLATERAL AGENT"), and as collateral agent for the Second Lien Secured Parties
(in such capacity, the "SECOND LIEN COLLATERAL AGENT"), and CITIGROUP GLOBAL
MARKETS INC. ("CGMI"), as sole lead arranger and sole bookrunner (in such
capacity, the "LEAD ARRANGER"). Terms used herein without definition shall have
the meanings assigned to such terms in the Credit Agreement.
Pursuant to Section 2.02 of the Credit Agreement, the Borrower
hereby gives you notice that it requests a Borrowing under the Credit Agreement,
and in that connection sets forth below the terms on which such Borrowing is
requested to be made:
(A) Class of Borrowing(1) _______________________
(B) Date of Borrowing
(which is a Business Day) _______________________
Principal amount of Borrowing (2) _______________________
----------
(1) Specify First Lien Term Borrowing, Second Lien Term Borrowing or
Revolving Credit Borrowing.
(2) Each Borrowing shall be in a minimum aggregate principal amount of (a)
in the case of a Term Borrowing, $1.0 million or an integral multiple of
$500,000 in excess thereof or (b) in the case of a Revolving Credit
Borrowing, $1.0 million or an integral multiple of $500,000 in excess
thereof
Footnote continued on next page.
(D) Type of Borrowing (3) _______________________
(E) For a Eurodollar Borrowing, the Interest Period
and the last day thereof (4) _______________________
(F) Funds are requested to be disbursed to the
following account(s) of the Borrower(5) _______________________
Upon acceptance of any or all of the Loans offered by the Lenders in
response to this request, the Borrower shall be deemed to have represented and
warranted that the conditions to lending specified in Sections 4.02(a), (b) and
(c) of the Credit Agreement have been satisfied.
[Signature Page Follows]
----------
Footnote continued from previous page.
or, if less, the aggregate amount of the then Available Revolving Credit
Commitments.
(3) Specify Eurodollar Borrowing or ABR Borrowing.
(4) Shall be subject to the definition of "Interest Period" in the Credit
Agreement.
(5) Specify the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of the
Credit Agreement.
-2-
POLYMER GROUP, INC.
By:
--------------------------
Name:
Title:
S-1
EXHIBIT C
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of April 27, 2004
(the "CREDIT AGREEMENT"), among POLYMER GROUP, INC., a Delaware corporation (the
"BORROWER"), the guarantors from time to time a party thereto, the financial
institutions listed on SCHEDULE 2.01 thereto, as such Schedule may from time to
time be supplemented and amended (the "LENDERS"), CITICORP NORTH AMERICA, INC.,
as administrative agent (in such capacity, the "ADMINISTRATIVE AGENT") for the
Lenders, as documentation agent (in such capacity, the "DOCUMENTATION AGENT"),
as syndication agent (in such capacity, the "SYNDICATION AGENT"), as collateral
agent for the First Lien Secured Parties (in such capacity, the "FIRST LIEN
COLLATERAL AGENT"), and as collateral agent for the Second Lien Secured Parties
(in such capacity, the "SECOND LIEN COLLATERAL AGENT"), and CITIGROUP GLOBAL
MARKETS INC. ("CGMI"), as sole lead arranger and sole bookrunner (in such
capacity, the "LEAD ARRANGER"). Terms used herein without definition shall have
the meanings assigned to such terms in the Credit Agreement.
ARTICLE X The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the Assignment Date set forth below, the interests
set forth below (the "ASSIGNED INTEREST") in the Assignor's rights and
obligations under the Credit Agreement, including, without limitation, the
amounts and percentages set forth below in the Revolving Credit Commitment of
the Assignor on the Assignment Date and the Revolving Loans and Term Loans owing
to the Assignor which are outstanding on the Assignment Date, together with the
participations in Swingline Loans held by the Assignor on the Assignment Date,
but excluding accrued interest and fees to and excluding the Assignment Date.
Each of the Assignor and the Assignee hereby makes and agrees to be bound by all
the representations, warranties and agreements set forth in Section 9.04 of the
Credit Agreement, a copy of which has been received by each such party. From and
after the Assignment Date (i) the Assignee shall be a party to and be bound by
the provisions of the Credit Agreement and, to the extent of the interests
assigned by this Assignment and Acceptance, have the rights and obligations of a
Lender thereunder and under the other Loan Documents and (ii) the Assignor
shall, to the extent of the interests assigned by this Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Credit Agreement.
ARTICLE XI This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is organized under the
laws of a jurisdiction outside the United States, the forms specified in Section
2.16 of the Credit Agreement, duly completed and executed by such Assignee, (ii)
if the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire in the form of EXHIBIT A to the Credit Agreement
and (iii) a processing and recordation fee of $3,500, if applicable.
ARTICLE XII This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Assignment Date:
Percentage Assigned of ag-
gregate Commitments (set
forth, to at least 8 decimals,
as a percentage of the aggre-
Principal Amount gate Commitments of all
Credit Facility Assigned Lenders thereunder)
----------------- ---------------- ------------------------------
Revolving Credit Commitment Assigned:
$ %
Revolving Loans:
First Lien Term Loans:
Second Lien Term Loans:
Participations in Swingline Loans:
ARTICLE XIII This Assignment and Acceptance shall become effective when
counterparts hereof have been executed on behalf of each of the parties required
pursuant to Section 9.04(b) of the Credit Agreement.
[Signature Page Follows]
-2-
Assignment and Acceptance
The terms set forth above
and on the reverse side
hereof are hereby agreed Accepted:*
to:
_____________________, as Assignor POLYMER GROUP, INC.
By: By:
------------------------------- ------------------------------------
Name: Name:
Title: Title:
_____________________, as Assignee Accepted:*
By: CITICORP NORTH AMERICA, INC., as
------------------------------- Administrative Agent
Name:
Title: By:
------------------------------------
Name:
Title:
Accepted:*
CITICORP NORTH AMERICA, INC., as
Swingline Lender
By:
------------------------------------
Name:
Title:
Accepted:*
Citibank, N.A., as
Issuing Bank
By:
------------------------------------
Name:
Title:
* To be completed only if consents are required under Section 9.04(b) of the
Credit Agreement.
S-1
Assignment and Acceptance
EXHIBIT D
COLLATERAL SHARING AGREEMENT
[Provided under separate cover.]
EXHIBIT E
COMPLIANCE CERTIFICATE
To: Each of the Lenders (as defined below) and Citicorp North America,
Inc., as Administrative Agent for such Lenders
▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ Quezon
POLYMER GROUP, INC.
Ladies and Gentlemen:
This Compliance Certificate is being delivered pursuant to Section
5.01(b) of the Credit Agreement dated as of April 27, 2004 (the "CREDIT
AGREEMENT"), among POLYMER GROUP, INC., a Delaware corporation (the "BORROWER"),
the guarantors from time to time a party thereto, the financial institutions
listed on SCHEDULE 2.01 thereto, as such Schedule may from time to time be
supplemented and amended (the "LENDERS"), CITICORP NORTH AMERICA, INC., as
administrative agent (in such capacity, the "ADMINISTRATIVE AGENT") for the
Lenders, as documentation agent (in such capacity, the "DOCUMENTATION AGENT"),
as syndication agent (in such capacity, the "SYNDICATION AGENT"), as collateral
agent for the First Lien Secured Parties (in such capacity, the "FIRST LIEN
COLLATERAL AGENT"), and as collateral agent for the Second Lien Secured Parties
(in such capacity, the "SECOND LIEN COLLATERAL AGENT"), and CITIGROUP GLOBAL
MARKETS INC. ("CGMI"), as sole lead arranger and sole bookrunner (in such
capacity, the "LEAD ARRANGER"). Terms used herein without definition shall have
the meanings assigned to such terms in the Credit Agreement.
The Borrower hereby certifies, represents and warrants that as of
[ ] (the "TEST DATE"):(6)
(i) The Interest Expense Coverage Ratio was _:1.0, as computed
on Attachment 1 hereto and such amount [complies] [does not comply] with
the provisions of Section 6.12 of the Credit Agreement;
(ii) The Total Leverage Ratio was _:1.0, as computed on
ATTACHMENT 2 hereto and such ratio [complies] [does not comply] with the
provisions of Section 6.13 of the Credit Agreement;
(iii) The Capital Expenditures were [ ], and such expenditures
[exceed] [do not exceed] the base amount set forth in Section 6.14 of
the Credit Agreement;
----------
(6) Test Date should be date of most recent financial statements delivered
under Section 5.01 of the Credit Agreement.
(iv) No Default or Event of Default has occurred and is
continuing [other than as follows:].
[Signature Page Follows]
-2-
IN WITNESS WHEREOF, the Borrower has caused this Compliance
Certificate to be executed and delivered by its duly Authorized Officer on this
___ day of ________.
POLYMER GROUP, INC.
By:
--------------------------------
Name:
Title: [ Financial Officer]
-1-
ATTACHMENT 1
1. INTEREST EXPENSE COVERAGE RATIO
A. "CONSOLIDATED EBITDA" means, for any period, Consolidated Net
Income for such period, plus, without duplication and to the
extent deducted in determining Consolidated Net Income for such
period, the sum of: (a) the aggregate amount of Consolidated
Interest Expense for such period, (b) the aggregate amount of
income and franchise tax expense for such period, (c) all amounts
attributable to depreciation and amortization for such period, (d)
all unusual or non-recurring non-cash charges during such period
(including unusual or non-recurring losses for any period ending
on or before the last day of the fiscal year ending January 3,
2004 as a result of such "fresh start" accounting procedures, but
excluding any non-cash item of expense requiring an accrual or
reserve for future cash expense), (e) plant realignment costs
incurred on or before January 3, 2004, (f) all fees and expenses
paid during such period directly relating to the refinancing of
the Existing Credit Agreement and (g) all non-cash stock
compensation expense; and minus, without duplication and to the
extent included in determining Consolidated Net Income for such
period, all non-recurring non-cash gains during such period and
all non-recurring gains for any period ending on or before the
last day of the fiscal year ending January 3, 2004 as a result of
"fresh start" accounting procedures associated with the
Reorganization Plan and the emergence of the Borrower from
bankruptcy; all as determined on a consolidated basis with respect
to the Borrower and its Subsidiaries in accordance with GAAP.
Other than for purposes of calculating Excess Cash Flow,
Consolidated EBITDA shall be calculated on a Pro Forma Basis to
give effect to the Transactions, any Permitted Acquisition and
Asset Sales consummated at any time on or after the first day of
the Test Period thereof as if the Transactions and each such
Permitted Acquisition had been effected on the first day of such
period and as if each such Asset Sale had been consummated on the
day prior to the first day of such period.......................... $_______
B. "CASH INTEREST EXPENSE" means, for any period, Consolidated
Interest Expense for such period, excluding any interest expense
not payable in cash (such as, for example, amortization of
discount and amortization of debt issuance costs) and excluding
any interest expense on the Convertible Notes except to the
extent actually paid in cash, net of interest income.............. $_______
C. INTEREST EXPENSE COVERAGE RATIO: The ratio of ITEM 1.A. to ITEM
1.B............................................................... ____:1.0
-2-
ATTACHMENT 2
2. TOTAL LEVERAGE RATIO:
A. "INDEBTEDNESS" of any Person means the sum of all indebtedness of
such Person on a consolidated basis (without duplication) with
respect to (i) borrowed money or represented by bonds,
debentures, notes and the like; (ii) the aggregate amount of
Capital Lease Obligations; (iii) all indebtedness secured by any
Lien on any Property of such Person; (iv) all indebtedness
representing the deferred purchase price of Property or services,
excluding trade payables in the ordinary course of business;
(v) all obligations for the reimbursement of any obligor in
respect of letters of credit, letters of guaranty, bankers'
acceptances and similar credit transactions; (vi) all obligations
under conditional sale or other title retention agreements
relating to property purchased by such Person; (vii) synthetic
lease obligations of such Person; (viii) all obligations under
Hedging Agreements to the extent required to be reflected on a
balance sheet of such Person; (ix) all Attributable Indebtedness
of such Person; and (x) direct Guarantees and indemnities in
respect of, and to purchase or otherwise acquire, or otherwise to
assure a creditor against loss in respect of, or to assure an
obligee against failure to make payment in respect of,
liabilities, obligations or indebtedness of the kind described in
clauses (i) through (ix).......................................... $_______
B. "CONSOLIDATED INDEBTEDNESS" means, at a particular date, the
aggregate stated balance sheet amount of all Indebtedness of the
Borrower and its Subsidiaries determined on a consolidated basis
in accordance with GAAP at such date.............................. $_______
C. "CONSOLIDATED EBITDA" means, for any period, Consolidated Net
Income for such period, plus, without duplication and to the
extent deducted in determining Consolidated Net Income for such
period, the sum of: (a) the aggregate amount of Consolidated
Interest Expense for such period, (b) the aggregate amount of
income and franchise tax expense for such period, (c) all amounts
attributable to depreciation and amortization for such period,
(d) all unusual or non-recurring non-cash charges during such
period (including unusual or non-recurring losses for any period
ending on or before the last day of the fiscal year ending
January 3, 2004 as a result of such "fresh start" accounting
procedures, but excluding any non-cash item of expense requiring
an accrual or reserve for future cash expense), (e) plant
realignment costs incurred on or before January 3, 2004, (f) all
fees and expenses paid during such period directly relating to
the refinancing of the Existing Credit Agreement and (g) all
non-cash stock compensation expense; and minus, without
duplication and to the extent included in determining
Consolidated Net Income for such period, all non-recurring
non-cash gains during such period and all non-recurring gains for
any period ending on or before the last day of the fiscal year
ending January 3, 2004 as a result of "fresh start" accounting
procedures associated with the Reorganization Plan and the
emergence of the Borrower from bankruptcy; all as determined on a
consolidated basis with respect to the Borrower and its
Subsidiaries in accordance with GAAP. Other than for purposes of
calculating Excess Cash Flow, Consolidated EBITDA shall be
calculated on a Pro Forma Basis to give effect to the
Transactions, any Permitted Acquisition and Asset Sales
consummated at any time on or after the first day of the Test
Period thereof as if the Transactions and each such Permitted
Acquisition had been effected on the first day of such period and
as if each such Asset Sale had been consummated on the day prior
to the first day of such period................................... $_______
D. TOTAL LEVERAGE RATIO: The ratio of Item 2.B to Item 2.C........... ____:1.0
-2-
EXHIBIT F
INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT
[Provided under separate cover.]
EXHIBIT ▇-▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
[insert date]
FOR VALUE RECEIVED, the undersigned, POLYMER GROUP, INC., a Delaware
corporation (the "BORROWER"), hereby unconditionally promises to pay to the
order of [Lender] (the "LENDER"), at the office of [Lender] at [Address], on
each date set forth under the Credit Agreement and the First Lien Term Loan
Maturity Date (terms used without definition shall have the meanings assigned to
such terms in that certain Credit Agreement dated as of April 27, 2004 (as
amended, modified, extended or restated from time to time, the "CREDIT
AGREEMENT"), among the Borrower, the guarantors from time to time a party
thereto, the financial institutions listed on SCHEDULE 2.01 thereto, as such
Schedule may from time to time be supplemented and amended (the "LENDERS"),
CITICORP NORTH AMERICA, INC., as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT") for the Lenders, as documentation agent (in such
capacity, the "DOCUMENTATION AGENT"), as syndication agent (in such capacity,
the "SYNDICATION AGENT"), as collateral agent for the First Lien Secured Parties
(in such capacity, the "FIRST LIEN COLLATERAL AGENT"), and as collateral agent
for the Second Lien Secured Parties (in such capacity, the "SECOND LIEN
COLLATERAL AGENT"), and CITIGROUP GLOBAL MARKETS INC. ("CGMI"), as sole lead
arranger and sole bookrunner (in such capacity, the "LEAD ARRANGER")), the
aggregate unpaid principal amount of all First Lien Term Loans made by the
Lender to the Borrower pursuant to Section 2.01 of the Credit Agreement, such
payment or payments to be in immediately available funds in Dollars, and to pay
interest from the date of such First Lien Term Loan on such principal amount
from time to time outstanding, in like funds, at said office, at a rate or rates
per annum and payable on such dates as are determined pursuant to the Credit
Agreement.
The Borrower promises to pay interest, on demand, on any overdue
principal of and, to the extent permitted by law, overdue interest on the Loans
from their due dates at a rate or rates determined as set forth in the Credit
Agreement.
To the extent permitted by applicable law, the Borrower hereby waives
diligence, presentment, demand, protest and notice of any kind whatsoever. The
nonexercise by the holder of any of its rights hereunder in any particular
instance shall not constitute a waiver thereof in that or any subsequent
instance.
Loans evidenced by this Note and all payments and prepayments of the
principal hereof and interest hereon and the respective dates thereof shall be
endorsed by the holder hereof on the schedule attached hereto and made a part
hereof, or on a continuation thereof which shall be attached hereto and made a
part hereof, or otherwise recorded by such holder in its internal records;
PROVIDED, HOWEVER, that any failure of the holder hereof to make such a notation
or any error in such notation shall not in any manner affect the obligation of
the Borrower to make payments of principal and interest in accordance with the
terms of this Note and the Credit Agreement.
This Note evidences Loans referred to in the Credit Agreement which,
among other things, contains provisions for the acceleration of the maturity
hereof upon the happening of certain events, for optional and mandatory
prepayment of the principal hereof prior to the maturity hereof and for the
amendment or waiver of certain provisions of the Credit Agreement, all upon the
terms and conditions therein specified. This Note is entitled to the benefit of
the Credit Agreement, including the guarantees thereunder. THIS NOTE SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
POLYMER GROUP, INC.
By:
-----------------------------
Name:
Title:
-2-
LOANS AND PAYMENTS
Payments Unpaid Princi- Name of Per-
Amount and ---------------------- pal Balance of son Making
Type of Loan Maturity Date Principal Interest Note Notation
------------- -------------- ---------- --------- -------------- ------------
EXHIBIT ▇-▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
[insert date]
FOR VALUE RECEIVED, the undersigned, POLYMER GROUP, INC., a Delaware
corporation (the "BORROWER"), hereby unconditionally promises to pay to the
order of [Lender] (the "LENDER"), at the office of [Lender] at [Address], on
each date set forth under the Credit Agreement and the Second Lien Term Loan
Maturity Date (terms used without definition shall have the meanings assigned to
such terms in that certain Credit Agreement dated as of April 27, 2004 (as
amended, modified, extended or restated from time to time, the "CREDIT
AGREEMENT"), among the Borrower, the guarantors from time to time a party
thereto, the financial institutions listed on SCHEDULE 2.01 thereto, as such
Schedule may from time to time be supplemented and amended (the "LENDERS"),
CITICORP NORTH AMERICA, INC., as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT") for the Lenders, as documentation agent (in such
capacity, the "DOCUMENTATION AGENT"), as syndication agent (in such capacity,
the "SYNDICATION AGENT"), as collateral agent for the First Lien Secured Parties
(in such capacity, the "FIRST LIEN COLLATERAL AGENT"), and as collateral agent
for the Second Lien Secured Parties (in such capacity, the "SECOND LIEN
COLLATERAL AGENT"), and CITIGROUP GLOBAL MARKETS INC. ("CGMI"), as sole lead
arranger and sole bookrunner (in such capacity, the "LEAD ARRANGER")), the
aggregate unpaid principal amount of all Second Lien Term Loans made by the
Lender to the Borrower pursuant to Section 2.01 of the Credit Agreement, such
payment or payments to be in immediately available funds in Dollars, and to pay
interest from the date of such Second Lien Term Loan on such principal amount
from time to time outstanding, in like funds, at said office, at a rate or rates
per annum and payable on such dates as are determined pursuant to the Credit
Agreement.
The Borrower promises to pay interest, on demand, on any overdue
principal of and, to the extent permitted by law, overdue interest on the Loans
from their due dates at a rate or rates determined as set forth in the Credit
Agreement.
To the extent permitted by applicable law, the Borrower hereby waives
diligence, presentment, demand, protest and notice of any kind whatsoever. The
nonexercise by the holder of any of its rights hereunder in any particular
instance shall not constitute a waiver thereof in that or any subsequent
instance.
Loans evidenced by this Note and all payments and prepayments of the
principal hereof and interest hereon and the respective dates thereof shall be
endorsed by the holder hereof on the schedule attached hereto and made a part
hereof, or on a continuation thereof which shall be attached hereto and made a
part hereof, or otherwise recorded by such holder in its internal records;
PROVIDED, HOWEVER, that any failure of the holder hereof to make such a notation
or any error in such notation shall not in any manner affect the obligation of
the Borrower to make payments of principal and interest in accordance with the
terms of this Note and the Credit Agreement.
This Note evidences Loans referred to in the Credit Agreement which,
among other things, contains provisions for the acceleration of the maturity
hereof upon the happening of certain events, for optional and mandatory
prepayment of the principal hereof prior to the maturity hereof and for the
amendment or waiver of certain provisions of the Credit Agreement, all upon the
terms and conditions therein specified. This Note is entitled to the benefit of
the Credit Agreement, including the guarantees thereunder. THIS NOTE SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
POLYMER GROUP, INC.
By:
-----------------------------
Name:
Title:
-2-
LOANS AND PAYMENTS
Payments Unpaid Princi- Name of Per-
Amount and ---------------------- pal Balance of son Making
Type of Loan Maturity Date Principal Interest Note Notation
------------- -------------- ---------- --------- -------------- ------------
EXHIBIT ▇-▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
[insert date]
FOR VALUE RECEIVED, the undersigned, POLYMER GROUP, INC., a Delaware
corporation (the "BORROWER"), hereby unconditionally promises to pay to the
order of [Lender] (the "LENDER"), at the office of [Lender] at [Address], on the
Revolving Credit Maturity Date (terms used without definition shall have the
meanings assigned to such terms in that certain Credit Agreement dated as of
April 27, 2004 (as amended, modified, extended or restated from time to time,
the "CREDIT AGREEMENT"), among the Borrower, the guarantors from time to time a
party thereto, the financial institutions listed on SCHEDULE 2.01 thereto, as
such Schedule may from time to time be supplemented and amended (the "LENDERS"),
CITICORP NORTH AMERICA, INC., as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT") for the Lenders, as documentation agent (in such
capacity, the "DOCUMENTATION AGENT"), as syndication agent (in such capacity,
the "SYNDICATION AGENT"), as collateral agent for the First Lien Secured Parties
(in such capacity, the "FIRST LIEN COLLATERAL AGENT"), and as collateral agent
for the Second Lien Secured Parties (in such capacity, the "SECOND LIEN
COLLATERAL AGENT"), and CITIGROUP GLOBAL MARKETS INC. ("CGMI"), as sole lead
arranger and sole bookrunner (in such capacity, the "LEAD Arranger")), the
aggregate unpaid principal amount of all Revolving Loans made by the Lender to
the Borrower pursuant to Section 2.01 of the Credit Agreement, such payment or
payments to be in immediately available funds in Dollars, and to pay interest
from the date of such Revolving Loan on such principal amount from time to time
outstanding, in like funds, at said office, at a rate or rates per annum and
payable on such dates as are determined pursuant to the Credit Agreement.
The Borrower promises to pay interest, on demand, on any overdue
principal of and, to the extent permitted by law, overdue interest on the Loans
from their due dates at a rate or rates determined as set forth in the Credit
Agreement.
To the extent permitted by applicable law, the Borrower hereby waives
diligence, presentment, demand, protest and notice of any kind whatsoever. The
nonexercise by the holder of any of its rights hereunder in any particular
instance shall not constitute a waiver thereof in that or any subsequent
instance.
All Loans evidenced by this Note and all payments and prepayments of
the principal hereof and interest hereon and the respective dates thereof shall
be endorsed by the holder hereof on the schedule attached hereto and made a part
hereof, or on a continuation thereof which shall be attached hereto and made a
part hereof, or otherwise recorded by such holder in its internal records;
PROVIDED, HOWEVER, that any failure of the holder hereof to make such a notation
or any error in such notation shall not in any manner affect the obligation of
the Borrower to make payments of principal and interest in accordance with the
terms of this Note and the Credit Agreement.
This Note evidences Loans referred to in the Credit Agreement which,
among other things, contains provisions for the acceleration of the maturity
hereof upon the happening of certain events, for optional and mandatory
prepayment of the principal hereof prior to the maturity hereof and for the
amendment or waiver of certain provisions of the Credit Agreement, all upon the
terms and conditions therein specified. This Note is entitled to the benefit of
the Credit Agreement, including the guarantees thereunder. THIS NOTE SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
POLYMER GROUP, INC.
By:
-----------------------------
Name:
Title:
-2-
LOANS AND PAYMENTS
Payments Unpaid Princi- Name of Per-
Amount and ---------------------- pal Balance of son Making
Type of Loan Maturity Date Principal Interest Note Notation
------------- -------------- ---------- --------- -------------- ------------
EXHIBIT ▇-▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
[insert date]
FOR VALUE RECEIVED, the undersigned, POLYMER GROUP, INC., a Delaware
corporation (the "BORROWER"), hereby unconditionally promises to pay to the
order of [Lender] (the "LENDER"), at the office of [Lender] at [Address], on the
Revolving Credit Maturity Date (terms used without definition shall have the
meanings assigned to such terms in that certain Credit Agreement dated as of
April 27, 2004 (as amended, modified, extended or restated from time to time,
the "CREDIT AGREEMENT"), among the Borrower, the guarantors from time to time a
party thereto, the financial institutions listed on SCHEDULE 2.01 thereto, as
such Schedule may from time to time be supplemented and amended (the "LENDERS"),
CITICORP NORTH AMERICA, INC., as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT") for the Lenders, as documentation agent (in such
capacity, the "DOCUMENTATION AGENT"), as syndication agent (in such capacity,
the "SYNDICATION AGENT"), as collateral agent for the First Lien Secured Parties
(in such capacity, the "FIRST LIEN COLLATERAL AGENT"), and as collateral agent
for the Second Lien Secured Parties (in such capacity, the "SECOND LIEN
COLLATERAL AGENT"), and CITIGROUP GLOBAL MARKETS INC. ("CGMI"), as sole lead
arranger and sole bookrunner (in such capacity, the "LEAD Arranger")), the
aggregate unpaid principal amount of all Swingline Loans made by the Lender to
the Borrower pursuant to Section 2.04 of the Credit Agreement, such payment or
payments to be in immediately available funds in Dollars, and to pay interest
from the date of such Swingline Loan on such principal amount from time to time
outstanding, in like funds, at said office, at a rate or rates per annum and
payable on such dates as are determined pursuant to the Credit Agreement.
The Borrower promises to pay interest, on demand, on any overdue
principal of and, to the extent permitted by law, overdue interest on the Loans
from their due dates at a rate or rates determined as set forth in the Credit
Agreement.
To the extent permitted by applicable law, the Borrower hereby waives
diligence, presentment, demand, protest and notice of any kind whatsoever. The
nonexercise by the holder of any of its rights hereunder in any particular
instance shall not constitute a waiver thereof in that or any subsequent
instance.
All Loans evidenced by this Note and all payments and prepayments of
the principal hereof and interest hereon and the respective dates thereof shall
be endorsed by the holder hereof on the schedule attached hereto and made a part
hereof, or on a continuation thereof which shall be attached hereto and made a
part hereof, or otherwise recorded by such holder in its internal records;
PROVIDED, HOWEVER, that any failure of the holder hereof to make such a notation
or any error in such notation shall not in any manner affect the obligation of
the Borrower to make payments of principal and interest in accordance with the
terms of this Note and the Credit Agreement.
This Note evidences Loans referred to in the Credit Agreement which,
among other things, contains provisions for the acceleration of the maturity
hereof upon the happening of certain events, for optional and mandatory
prepayment of the principal hereof prior to the maturity hereof and for the
amendment or waiver of certain provisions of the Credit Agreement, all upon the
terms and conditions therein specified. This Note is entitled to the benefit of
the Credit Agreement, including the guarantees thereunder. THIS NOTE SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
POLYMER GROUP, INC.
By:
-----------------------------
Name:
Title:
-2-
LOANS AND PAYMENTS
Payments Unpaid Princi- Name of Per-
Amount and ---------------------- pal Balance of son Making
Type of Loan Maturity Date Principal Interest Note Notation
------------- -------------- ---------- --------- -------------- ------------
EXHIBIT H
CLOSING CERTIFICATE
This Closing Certificate is being delivered pursuant to Section
4.01(c) of the Credit Agreement dated as of April 27, 2004 (the "CREDIT
AGREEMENT"), among POLYMER GROUP, INC., a Delaware corporation (the "BORROWER"),
the guarantors from time to time a party thereto, the financial institutions
listed on SCHEDULE 2.01 thereto, as such Schedule may from time to time be
supplemented and amended (the "LENDERS"), CITICORP NORTH AMERICA, INC., as
administrative agent (in such capacity, the "ADMINISTRATIVE AGENT") for the
Lenders, as documentation agent (in such capacity, the "DOCUMENTATION AGENT"),
as syndication agent (in such capacity, the "SYNDICATION AGENT"), as collateral
agent for the First Lien Secured Parties (in such capacity, the "FIRST LIEN
COLLATERAL AGENT"), and as collateral agent for the Second Lien Secured Parties
(in such capacity, the "SECOND LIEN COLLATERAL AGENT"), and CITIGROUP GLOBAL
MARKETS INC. ("CGMI"), as sole lead arranger and sole bookrunner (in such
capacity, the "LEAD ARRANGER"). Terms used herein without definition shall have
the meanings assigned to such terms in the Credit Agreement. The undersigned
Financial Officer of the Borrower hereby certifies on behalf of the Borrower as
follows:
ARTICLE I The representations and warranties contained in
Article III of the Credit Agreement and in the other Loan Documents are true and
correct in all material respects on and as of the date hereof with the same
effect as if made on the date hereof except for representations and warranties
stated to relate to a specific earlier date, in which case such representations
and warranties were true and correct in all material respects as of such earlier
date;
ARTICLE II No Default or Event of Default has occurred and is
continuing or will result from the making of any Loans to be made to the
Borrower on the date hereof; and
ARTICLE III There are no liquidation or dissolution proceedings
pending or to my knowledge threatened against the Borrower, nor to my knowledge
has any other event occurred which could reasonably be expected to threaten the
corporate existence of the Borrower.
IN WITNESS WHEREOF, the undersigned has executed this certificate and
caused the same to be delivered as of this 27th day of April, 2004.
By:
-----------------------------
Name:
Title: Financial Officer
CERTIFICATION
The undersigned, [ ], being the duly elected [ ] of Polymer
Group, Inc., hereby certifies and affirms that [ ], who executed the foregoing
certificate, is the duly elected, qualified and acting [Financial Officer] of
Polymer Group, Inc. and that the signature set forth above his name is his
genuine signature.
By:
-----------------------------
Name:
Title: [ ]
S-1
EXHIBIT I
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT dated as of April 27, 2004, among each of the
subsidiaries listed on SCHEDULE I hereto (each such subsidiary individually, a
"GUARANTOR" and collectively, the "GUARANTORS") of POLYMER GROUP, INC., a
Delaware corporation (the "BORROWER"), and CITICORP NORTH AMERICA, INC., as
First Lien Collateral Agent, Second Lien Collateral Agent and Administrative
Agent (the "AGENTS") for the Secured Parties (as defined in the Credit Agreement
referred to below).
Reference is made to the Credit Agreement dated as of April 27, 2004
(the "CREDIT AGREEMENT"), among POLYMER GROUP, INC., a Delaware corporation (the
"BORROWER"), the guarantors from time to time a party thereto, the financial
institutions listed on SCHEDULE 2.01 thereto, as such Schedule may from time to
time be supplemented and amended (the "LENDERS"), CITICORP NORTH AMERICA, INC.,
as administrative agent (in such capacity, the "ADMINISTRATIVE AGENT") for the
Lenders, as documentation agent (in such capacity, the "DOCUMENTATION AGENT"),
as syndication agent (in such capacity, the "SYNDICATION AGENT"), as collateral
agent for the First Lien Secured Parties (in such capacity, the "FIRST LIEN
COLLATERAL AGENT"), and as collateral agent for the Second Lien Secured Parties
(in such capacity, the "SECOND LIEN COLLATERAL AGENT"), and CITIGROUP GLOBAL
MARKETS INC. ("CGMI"), as sole lead arranger and sole bookrunner (in such
capacity, the "LEAD ARRANGER"). Terms used herein without definition shall have
the meanings assigned to such terms in the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower, and the Issuing
Bank has agreed to issue Letters of Credit for the account of the Borrower,
pursuant to, and upon the terms and subject to the conditions specified in, the
Credit Agreement. Each of the Guarantors is a direct or indirect wholly owned
Subsidiary of the Borrower and acknowledges that it will derive substantial
benefit from the making of the Loans by the Lenders, and the issuance of the
Letters of Credit by the Issuing Bank. The obligations of the Lenders to make
Loans and of the Issuing Bank to issue Letters of Credit are conditioned on,
among other things, the execution and delivery by the Guarantors of a Guarantee
Agreement in the form hereof. As consideration therefor and in order to induce
the Lenders to make Loans and the Issuing Bank to issue Letters of Credit, the
Guarantors are willing to execute this Agreement.
Accordingly, the parties hereto agree as follows:
(a) GUARANTEE. Each Guarantor unconditionally guarantees, jointly
with the other Guarantors and severally, as a primary obligor and not merely as
a surety, (a) the due and punctual payment of the Obligations and (b) the due
and punctual performance of all covenants, agreements, obligations and
liabilities of the Loan Parties under or pursuant to the Credit Agreement and
the other Loan Documents (all the monetary and other obligations referred to in
the preceding clauses (a) and (b) being collectively called the "GUARANTEED
OBLIGATIONS"). Each Guarantor further agrees that the Guaranteed Obligations may
be extended or renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee notwithstanding any
extension or renewal of any Obligation. By execution of this Agreement, each
Guarantor agrees to be bound by the terms of the Credit Agreement as a
Subsidiary Loan Party as if it were a party to the Credit Agreement.
(b) GUARANTEED OBLIGATIONS NOT WAIVED. To the fullest extent
permitted by applicable law, each Guarantor waives presentment to, demand of
payment from and protest to the Loan Parties of any of the Guaranteed
Obligations, and also waives notice of acceptance of its guarantee and notice of
protest for nonpayment. To the fullest extent permitted by applicable law, the
obligations of each Guar-
antor hereunder shall not be affected by (a) the failure of the Agents or any
other Secured Party to assert any claim or demand or to enforce or exercise any
right or remedy against the Loan Parties under the provisions of the Credit
Agreement, any other Loan Document or otherwise, (b) any rescission, waiver,
amendment or modification of, or any release from any of the terms or provisions
of, this Agreement, any other Loan Document, any Guarantee or any other
agreement, including with respect to any other Guarantor under this Agreement,
or (c) the failure to perfect any security interest in or lien on, or the
release of, any of the security held by or on behalf of the Agents or any other
Secured Party.
(c) GUARANTEE OF PAYMENT. Each Guarantor further agrees that its
guarantee constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by the Agents or any other
Secured Party to any of the security held for payment of the Guaranteed
Obligations or to any balance of any deposit account or credit on the books of
the Agents or any other Secured Party in favor of the Borrower or any other
Person.
(d) NO DISCHARGE OR DIMINISHMENT OF GUARANTEE. The obligations of
each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in
full in cash of the Guaranteed Obligations), including any claim of waiver,
release, surrender, alteration or compromise of any of the Guaranteed
Obligations, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of each Guarantor hereunder
shall not be discharged or impaired or otherwise affected by the failure of the
Agents or any other Secured Party to assert any claim or demand or to enforce
any remedy under the Credit Agreement, any other Loan Document or any other
agreement, by any waiver or modification of any provision of any thereof, by any
default, failure or delay, willful or otherwise, in the performance of the
Guaranteed Obligations, or by any other act or omission that may or might in any
manner or to any extent vary the risk of any Guarantor or that would otherwise
operate as a discharge of each Guarantor as a matter of law or equity (other
than the payment in full in cash or Cash Equivalents of all the Guaranteed
Obligations).
(e) DEFENSES OF BORROWER WAIVED. To the fullest extent permitted by
applicable law, each of the Guarantors waives any defense based on or arising
out of any defense of any Loan Party or the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of any Loan Party, other than the final payment in full in cash
or Cash Equivalents of the Guaranteed Obligations. The Agents and the other
Secured Parties may, at their election, foreclose on any security held by one or
more of them by one or more judicial or nonjudicial sales, accept an assignment
of any such security in lieu of foreclosure, compromise or adjust any part of
the Guaranteed Obligations, make any other accommodation with any Loan Party or
any other guarantor or exercise any other right or remedy available to them
against any Loan Party or any other guarantor, without affecting or impairing in
any way the liability of any Guarantor hereunder except to the extent the
Guaranteed Obligations have been fully and finally paid in cash or Cash
Equivalents. Pursuant to applicable law, each of the Guarantors waives any
defense arising out of any such election even though such election operates,
pursuant to applicable law, to impair or to extinguish any right of
reimbursement or subrogation or other right or remedy of such Guarantor against
any Loan Party or any other Guarantor or guarantor, as the case may be, or any
security.
(f) AGREEMENT TO PAY; SUBORDINATION. In furtherance of the foregoing
and not in limitation of any other right that the Agents or any other Secured
Party has at law or in equity against any Guarantor by virtue hereof, upon the
failure of any Loan Party to pay any Obligation when and as the same shall
become due, whether at maturity, by acceleration, after notice of prepayment or
otherwise,
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each Guarantor hereby promises to and will forthwith pay, or cause to be paid,
to the Agents or such other Secured Party as designated thereby in cash or Cash
Equivalents the amount of such unpaid Guaranteed Obligations. Upon payment by
any Guarantor of any sums to the Agents or any Secured Party as provided above,
all rights of such Guarantor against any Loan Party arising as a result thereof
by way of right of subrogation, contribution, reimbursement, indemnity or
otherwise shall in all respects be subordinate and junior in right of payment to
the prior payment in full in cash or Cash Equivalents of all the Guaranteed
Obligations. In addition, any indebtedness of any Loan Party now or hereafter
held by any Guarantor is hereby subordinated in right of payment to the prior
payment in full in cash or Cash Equivalents of the Guaranteed Obligations. If
any amount shall erroneously be paid to any Guarantor on account of (i) such
subrogation, contribution, reimbursement, indemnity or similar right or (ii) any
such indebtedness of any Loan Party, such amount shall be held in trust for the
benefit of the Secured Parties and shall forthwith be paid to the Agents to be
credited against the payment of the Guaranteed Obligations, whether matured or
unmatured, in accordance with the terms of the Loan Documents.
(g) INFORMATION. Each of the Guarantors assumes all responsibility
for being and keeping itself informed of each other Loan Party's financial
condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations and the nature, scope and extent of the
risks that such Guarantors and incurs hereunder, and agrees that none of the
Agents or the other Secured Parties will have any duty to advise any of the
Guarantors of information known to it or any of them regarding such
circumstances or risks.
(h) REPRESENTATIONS AND WARRANTIES. Each of the Guarantors
represents and warrants as to itself that all representations and warranties
relating to it contained in the Credit Agreement are true and correct.
(i) TERMINATION. (i) The Guarantees made hereunder (i) shall
terminate when all the Guaranteed Obligations (other than contingent
indemnification provisions not then claimed or due) have been paid in full in
cash or Cash Equivalents and the Lenders have no further commitment to lend
under the Credit Agreement or to issue or participate in Letters of Credit and
the LC Exposure has been reduced to zero and (ii) shall continue to be effective
or be reinstated, as the case may be, if at any time any payment in respect
thereof, of any Obligation is rescinded or must otherwise be restored by any
Secured Party or any Guarantor upon the bankruptcy or reorganization of the
Borrower, any Guarantor or otherwise. In connection with the foregoing, the
Agents shall execute and deliver to such Guarantor or Guarantor's designee, at
such Guarantor's expense, any documents or instruments which such Guarantor
shall reasonably request from time to time to evidence such termination and
release.
(ii) If the Equity Interests of a Guarantor are sold, transferred or
otherwise disposed of to a Person that is not an Affiliate pursuant to a
transaction permitted by Section 6.05 of the Credit Agreement that results
in such Guarantor ceasing to be a Subsidiary, or upon the effectiveness of
any written consent pursuant to Section 9.08 of the Credit Agreement to the
release of the guarantee granted by such Guarantor hereby, such Guarantor
shall be released from its obligations under this Agreement without further
action. In connection with such release, the Agents shall execute and
deliver to such Guarantor, at such Guarantor's expense, all documents that
such Guarantor shall reasonably request to evidence such termination or
release. Any execution and delivery of documents pursuant to this Section
9(b) shall be without recourse to or warranty by the Agents.
(j) BINDING EFFECT; SEVERAL AGREEMENT; SUCCESSORS AND ASSIGNS. (i)
This Agreement shall become effective as to any Guarantor when a counterpart
hereof executed on behalf of such
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Guarantor shall have been delivered to the Agents and a counterpart hereof
(including a facsimile copy) shall have been executed on behalf of the Agents,
and thereafter shall be binding upon such Guarantor and the Agents and their
respective permitted successors and assigns, and shall inure to the benefit of
such Guarantor, the Agents and the other Secured Parties and their respective
permitted successors and assigns, except that no Guarantor shall have the right
to assign or transfer its rights or obligations hereunder or any interest herein
(and any such attempted assignment or transfer shall be void) except as
expressly permitted by each of the other Loan Documents.
(ii) Under Oregon law, most agreements, promises and commitments made
after October 3, 1989, concerning loans and other credit extensions which
are not for personal, family or household purposes or secured solely by the
borrower's residence must be in writing, express consideration and be
signed to be enforceable.
(iii) This Agreement shall be construed as a separate agreement with
respect to each Guarantor and may be amended, modified, supplemented,
waived or released with respect to any Guarantor without the approval of
any other Guarantor and without affecting the obligations of any other
Guarantor hereunder.
(iv) Whenever in this Agreement any of the parties hereto is referred
to, such reference shall be deemed to include the successors and assigns of
such party; and all covenants, promises and agreements by or on behalf of
any Guarantor or the Agents that are contained in this Agreement shall bind
and inure to the benefit of their respective successors and assigns.
(k) WAIVERS; AMENDMENT. (i) No failure or delay of the Agents in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Agents hereunder and of the other
Secured Parties under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provisions of this Agreement or any other Loan Document or consent to any
departure by any Guarantor therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on any Guarantor in any case shall entitle such
Guarantor or any other Guarantor to any other or further notice or demand in
similar or other circumstances.
(ii) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in
writing entered into among the Borrower, the Agents and the Guarantors with
respect to which such waiver, amendment or modification is to apply.
(l) GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
(m) NOTICES. All communications and notices hereunder shall (except
as otherwise expressly permitted herein) be in writing and given as provided in
Section 9.01 of the Credit Agreement. All communications and notices hereunder
to any Guarantor shall be given to it at its address or telecopy number set
forth on SCHEDULE I, with a copy to Borrower.
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(n) SURVIVAL OF AGREEMENT; SEVERABILITY. (i) All covenants,
agreements, representations and warranties made by any Guarantor herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Agents and the other Secured Parties and shall
survive the making by the Lenders of the Loans and the Lenders' issuance of and
participations in Letters of Credit, regardless of any investigation made by the
Secured Parties or on their behalf, and shall continue in full force and effect
until this Agreement shall terminate.
(ii) In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby (it
being understood that the invalidity of a particular provision in a
particular jurisdiction shall not in and of itself affect the validity of
such provision in any other jurisdiction). The parties shall endeavor in
good faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as
close as possible to that of the invalid, illegal or unenforceable
provisions.
(o) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute a single contract (subject to Section 10) and
shall become effective as provided in Section 10. Delivery of an executed
signature page to this Agreement by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof. It is understood and agreed
among the parties that this Agreement shall create separate guarantees in favor
of each of the Term Lenders and the Revolving Lenders, and that any
determination by any court with jurisdiction that the guarantee in favor of
either group of Lenders is invalid for any reason shall not in and of itself
invalidate the guarantee with respect to any other beneficiary hereunder.
(p) RULES OF INTERPRETATION; HEADINGS. (i) The rules of
interpretation specified in Section 1.03 of the Credit Agreement shall be
applicable to this Agreement.
(ii) Section headings used herein are for the purpose of reference
only, are not part of this Agreement and are not to affect the construction
of, or to be taken into consideration in interpreting this Agreement.
(q) JURISDICTION; CONSENT TO SERVICE OF PROCESS. (i) Each party
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State court or, to the
extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Agents or any other Secured Party may otherwise have to bring any
action or proceeding relating to this Agreement or the other Loan Documents
against any Guarantor or its properties in the courts of any jurisdiction.
(ii) Each party hereto hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection
which it may now or hereafter have to
-5-
the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement or the other Loan Documents in any New York
State or Federal court referred to in paragraph (c) of this Section. Each
of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(iii) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 13. Nothing in this
Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
(r) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 18.
(s) RIGHT OF SETOFF. If an Event of Default or Event of Termination
shall have occurred and be continuing, each Secured Party is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Secured Party to or for the credit or the account any Guarantor against
any of and all the obligations of such Guarantor now or hereafter existing under
this Agreement and other Loan Documents held by such Secured Party, irrespective
of whether or not such Secured Party shall have made any demand under this
Agreement or such other Loan Document and although such obligations may be
unmatured. In connection with exercising its rights pursuant to the previous
sentence, a Secured Party may at any time use any of the such Guarantor's credit
balances with the Secured Party to purchase at the Secured Party's applicable
spot rate of exchange any other currency or currencies which the Secured Party
considers necessary to reduce or discharge any amount due by the such Guarantor
to the Secured Party, and may apply that currency or those currencies in or
towards payment of those amounts. The rights of each Secured Party under this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Secured Party may have. Each Secured Party agrees promptly to
notify such Guarantor and the Agents after making any such setoff.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
BONLAM (S.C.), INC.
CHICOPEE, INC.
DOMINION TEXTILE (USA) INC.
FABPRO ORIENTED POLYMERS, INC.
FABRENE CORP.
FABRENE GROUP L.L.C.
FIBERGOL CORPORATION
FIBERTECH GROUP, INC.
FNA ACQUISITION, INC.
FNA POLYMER CORP.
LORETEX CORPORATION
PGI EUROPE, INC.
PGI POLYMER, INC.
PNA CORP.
POLY-BOND INC.
POLYIONIX SEPARATION TECHNOLOGIES, INC.
PRISTINE BRANDS CORPORATION
TECHNETICS GROUP, INC.
By:
--------------------------------
Name:
Title:
S-1
Guarantee Agreement
CITICORP NORTH AMERICA, INC., as Administrative
Agent
By:
--------------------------------------------
Name:
Title:
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Schedule I to the
Guarantee Agreement
Guarantors
NAME
Bonlam (S.C.), Inc.
Chicopee, Inc.
Dominion Textile (USA) Inc.
FabPro Oriented Polymers, Inc.
Fabrene Corp.
Fabrene Group L.L.C.
FiberGol Corporation
FiberTech Group, Inc.
FNA Acquisition, Inc.
FNA Polymer Corp.
Loretex Corporation
PGI Europe, Inc.
PGI Polymer, Inc.
PNA Corp.
Poly-Bond Inc.
PolyIonix Separation Technologies, Inc.
Pristine Brands Corporation
Technetics Group, Inc.
ADDRESS/TELECOPY NUMBER FOR EACH GUARANTOR
c/o Polymer Group, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
(telecopy: 843-329-0415)
EXHIBIT J
PLEDGE AGREEMENT
EXHIBIT K
SECURITY AGREEMENT
EXHIBIT L
OPINION OF LOCAL COUNSEL
EXHIBIT M
SOLVENCY CERTIFICATE
EXHIBIT N-1
FIRST LIEN MORTGAGE
EXHIBIT N-2
SECOND LIEN MORTGAGE
EXHIBIT O
LANDLORD ACCESS AGREEMENT
S-1