EXHIBIT 99(b)
CREDIT AGREEMENT
DATED AS OF NOVEMBER 25, 2002
AMONG
TEXAS PETROCHEMICALS LP,
AS COMPANY,
TEXAS PETROCHEMICALS HOLDINGS, INC.,
TPC HOLDING CORP
PETROCHEMICALS PARTNERSHIP HOLDINGS, INC.
as additional Loan Parties
THE LENDERS LISTED HEREIN,
AS LENDERS,
CREDIT SUISSE FIRST BOSTON,
AS ADMINISTRATIVE AGENT
AND
REGIMENT CAPITAL ADVISORS, LLC,
AS DOCUMENTATION AGENT
CREDIT SUISSE FIRST BOSTON,
AS ARRANGER
TABLE OF CONTENTS
Page No.
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Section 1. DEFINITIONS....................................................................................2
1.1 Certain Defined Terms..........................................................................2
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under Agreement............31
1.3 Other Definitional Provisions and Rules of Construction.......................................31
Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS....................................................32
2.1 Commitments; Making of Loans; the Register; Notes.............................................32
2.2 Interest on the Loans.........................................................................34
2.3 Fees..........................................................................................36
2.4 Repayments, General Provisions Regarding Payments; Application of Proceeds of
Collateral and Payments Under Parent Guaranty.................................................36
2.5 Use of Proceeds...............................................................................42
2.6 Intentionally Deleted.........................................................................42
2.7 Increased Costs; Taxes; Capital Adequacy......................................................42
2.8 Statement of Lenders; Obligation of Lenders to Mitigate.......................................46
2.9 Replacement of a Lender.......................................................................47
Section 3. Intentionally Deleted.........................................................................47
Section 4. CONDITIONS TO LOANS...........................................................................47
4.1 Conditions to Term Loans......................................................................47
Section 5. COMPANY'S REPRESENTATIONS AND WARRANTIES......................................................54
5.1 Organization, Powers, Qualification, Good Standing, Business and Subsidiaries.................54
5.2 Authorization of Borrowing, etc...............................................................55
5.3 Financial Condition...........................................................................56
5.4 No Material Adverse Change; No Restricted Payments............................................56
5.5 Title to Properties; Liens; Real Property; Intellectual Property..............................57
5.6 Litigation; Adverse Facts.....................................................................58
5.7 Payment of Taxes..............................................................................59
5.8 Performance of Agreements; Material Contracts.................................................59
5.9 Governmental Regulation.......................................................................59
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5.10 Securities Activities.........................................................................59
5.11 Employee Benefit Plans........................................................................60
5.12 Certain Fees..................................................................................61
5.13 Environmental Protection......................................................................61
5.14 Employee and Labor Matters....................................................................63
5.15 Solvency......................................................................................63
5.16 Matters Relating to Collateral................................................................63
5.17 Disclosure....................................................................................64
5.18 Subordinated Indebtedness.....................................................................65
5.19 Additional Representations and Warranties.....................................................65
Section 6. COVENANTS.....................................................................................66
6.1 Payment Of Loans..............................................................................66
6.2 SEC Reports...................................................................................67
6.3 Limitation on Indebtedness....................................................................67
6.4 Limitations on Subsidiaries...................................................................69
6.5 Limitation on Restricted Payments.............................................................69
6.6 Limitation on Restrictions on Distributions From Subsidiaries.................................72
6.7 Limitation on Sales of Assets and Subsidiary Stock............................................73
6.8 Limitation on Affiliate Transactions..........................................................74
6.9 Limitation on The Sale or Issuance of Capital Stock of Subsidiaries...........................75
6.10 Prohibition on Mergers and Liens..............................................................75
6.11 Existence, etc................................................................................75
6.12 Payment of Taxes and Claims...................................................................76
6.13 Maintenance of Properties; Insurance; Application of Net Insurance/ Condemnation
Proceeds......................................................................................76
6.14 Compliance with Laws, etc.....................................................................80
6.15 Environmental Matters.........................................................................80
6.16 Additional Subsidiaries.......................................................................83
6.17 Matters Relating to Additional Real Property Collateral.......................................83
6.18 Cash Management Systems.......................................................................84
6.19 Further Instruments and Acts..................................................................84
6.21 Covenants regarding Books and Records, Inspection Rights, etc.................................85
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6.22 Consolidated Capital Expenditures.............................................................86
6.23 Modifications of Other Agreements.............................................................86
6.24 Reporting Requirements........................................................................87
6.25 Post Closing Covenants........................................................................92
Section 7. FINANCIAL COVENANTS...........................................................................93
7.1 Fixed Charge Coverage Ratio...................................................................93
7.2 Senior Secured Leverage Ratio.................................................................93
Section 8. EVENTS OF DEFAULT.............................................................................94
8.1 Failure to Make Payments When Due.............................................................94
8.2 Default in Other Agreements...................................................................94
8.3 Breach of Certain Covenants...................................................................95
8.4 Breach of Warranty............................................................................95
8.5 Other Defaults Under Loan Documents...........................................................95
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc..........................................95
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc............................................96
8.8 Judgments and Attachments.....................................................................96
8.9 Dissolution...................................................................................96
8.10 Employee Benefit Plans........................................................................96
8.11 Change of Control.............................................................................97
8.12 Invalidity of Loan Documents; Failure of Security; Repudiation of Obligations.................97
8.13 Conduct of Business By Holding Co., GP Parent and Limited Partner.............................97
8.14 Injunctions...................................................................................97
8.15 Material Damage, Cessation of Business, Loss of License etc...................................97
Section 9. ADMINISTRATIVE AGENT..........................................................................98
9.1 Appointment...................................................................................98
9.2 Powers and Duties; General Immunity..........................................................100
9.3 Independent Investigation by Lenders; No Responsibility For Appraisal of
Creditworthiness.............................................................................102
9.4 Right to Indemnity...........................................................................102
9.5 Successor Administrative Agent...............................................................102
9.6 Collateral Documents and Parent Guaranty.....................................................103
9.7 Duties of Other Agents.......................................................................103
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9.8 Administrative Agent May File Proofs of Claim................................................104
Section 10. MISCELLANEOUS................................................................................105
10.1 Successors and Assigns; Assignments and Participations in Loans..............................105
10.2 Expenses.....................................................................................108
10.3 Indemnity....................................................................................109
10.4 Set-Off; Security Interest in Deposit Accounts...............................................110
10.5 Ratable Sharing..............................................................................111
10.6 Amendments and Waivers.......................................................................111
10.7 Independence of Covenants....................................................................112
10.8 Notices; Effectiveness of Signatures.........................................................112
10.9 Survival of Representations, Warranties and Agreements.......................................113
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative........................................113
10.11 Marshalling; Payments Set Aside..............................................................114
10.12 Severability.................................................................................114
10.13 Obligations Several; Independent Nature of Lenders' Rights; Damage Waiver....................114
10.14 Release of Security Interest or Parent Guaranty..............................................114
10.15 Applicable Law...............................................................................115
10.16 Construction of Agreement; Nature of Relationship............................................115
10.17 Consent to Jurisdiction and Service of Process...............................................115
10.18 Waiver of Jury Trial.........................................................................116
10.19 Confidentiality..............................................................................117
10.20 Counterparts; Effectiveness..................................................................118
10.21 Designated Senior Indebtedness...............................................................118
Signature pages S-2
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EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF TERM NOTE
III FORM OF COMPLIANCE CERTIFICATE
IV FORM OF OPINION OF COMPANY COUNSEL
V FORM OF OPINION OF O'MELVENY & ▇▇▇▇▇ LLP
VI FORM OF ASSIGNMENT AGREEMENT
VII FORM OF FINANCIAL CONDITION CERTIFICATE
VIII FORM OF SECURITY AGREEMENT
IX FORM OF PARENT GUARANTY
X FORM OF MORTGAGE
XI DESCRIPTIONS OF TERM PRIMARY COLLATERAL, REVOLVER
PRIMARY COLLATERAL AND SHARED COLLATERAL
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SCHEDULES
4.1C CORPORATE AND CAPITAL STRUCTURE; OWNERSHIP; MANAGEMENT
4.1E FINANCIAL STATEMENTS; PRO FORMA FINANCIAL STATEMENTS
4.1K CLOSING DATE ENVIRONMENTAL REPORTS
4.1M CLOSING DATE MORTGAGED PROPERTIES
5.1 SUBSIDIARIES OF THE HOLDING CO.
5.1C BUSINESS OF THE LOAN PARTIES AND THEIR SUBSIDIARIES
5.5B REAL PROPERTY
5.5C INTELLECTUAL PROPERTY
5.5D INSURANCE
5.6A MATERIAL LITIGATION
5.6B ALL LITIGATION
5.11 CERTAIN EMPLOYEE BENEFIT PLANS
5.13 ENVIRONMENTAL MATTERS
5.19A OPERATING LEASE OBLIGATIONS
5.19B LOCATION OF BANK ACCOUNTS
5.19F ORGANIZATIONAL INFORMATION OF LOAN PARTIES
5.19G TRADENAMES
5.19H LOCATION OF COLLATERAL
6.3 INDEBTEDNESS (Part I, Existing Indebtedness and Part
II, Capital Leases)
6.6 EXISTING LIENS
6.7 NON-CORE ASSETS
6.22H EXISTING INVESTMENTS
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TEXAS PETROCHEMICALS LP
CREDIT AGREEMENT
This
CREDIT AGREEMENT is dated as of November 25, 2002 and
entered into by and among
TEXAS PETROCHEMICALS LP, a Texas limited partnership
("COMPANY"), TEXAS PETROCHEMICALS HOLDINGS, INC., a Delaware corporation
("HOLDING CO."), TPC HOLDING CORP., a Delaware corporation ("GP PARENT"),
PETROCHEMICALS PARTNERSHIP HOLDINGS, INC., a Delaware corporation ("LIMITED
PARTNER"), THE FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY HERETO (each
individually referred to herein as a "LENDER" and collectively as "LENDERS"),
REGIMENT CAPITAL ADVISORS, LLC, as documentation agent for Lenders (in such
capacity, "DOCUMENTATION AGENT"), and CREDIT SUISSE FIRST BOSTON ("CSFB"), as
administrative agent for Lenders (in such capacity, "ADMINISTRATIVE AGENT").
Initially capitalized terms used in the Recitals without definition are
hereafter defined in Section 1 of this Agreement.
RECITALS
WHEREAS, Lenders, at the request of the Company, have agreed
to extend certain credit facilities to the Company, the proceeds of which will
be used (i) to repay up to $35,000,000 of the Company's existing indebtedness
under the Existing
Credit Agreement (the "REFINANCING"), (ii) to repurchase up
to $15,450,000 of face amount of the 11 1/8% Senior Subordinated Notes due 2006
(the "NOTE REPURCHASE"), (iii) to pay certain fees, costs and expenses in
connection with this Agreement, the Refinancing and the Note Repurchase
(collectively, the "TRANSACTION COSTS"; the Refinancing, the Note Repurchase and
the payment of Transaction Costs are collectively referred to as the
"TRANSACTIONS"); and (iv) thereafter, to repurchase additional Senior
Subordinated Notes to the extent permitted by this Agreement and provide
financing for working capital and for other general corporate purposes of the
Company and its Subsidiaries;
WHEREAS, the Company desires to secure all of the Obligations
hereunder and under the other Loan Documents by granting to Administrative
Agent, on behalf of Lenders, a Lien on substantially all of its real, personal
and mixed property, consisting of a Second Priority Lien on all of the Revolver
Primary Collateral and a First Priority Lien on substantially all of the Term
Primary Collateral and Shared Collateral; and
WHEREAS, Holding Co., GP Parent and Limited Partner have
agreed to Guarantee the Obligations hereunder and under the other Loan Documents
and to secure their guaranties by granting to Administrative Agent, on behalf of
Lenders, a Lien on substantially all of their real, personal and mixed property
(other than in the case of Holding Co., the Capital Stock of any Unrestricted
Subsidiary), consisting of a Second Priority Lien on all of the Revolver Primary
Collateral and a First Priority Lien on substantially all of their Term Primary
Collateral and Shared Collateral:
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the Company, Holding Co.,
GP Parent, Limited Partner, Lenders, and Administrative Agent agree as follows:
SECTION 1. DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
The following terms used in this Agreement shall have the
following meanings:
"ADDITIONAL MORTGAGED PROPERTY" has the meaning assigned to
that term in subsection 6.17.
"ADDITIONAL MORTGAGES" has the meaning assigned to that term
in subsection 6.17.
"ADJUSTED EBITDA" means, with respect to any fiscal period,
Consolidated Net Income of the Company and its Subsidiaries, plus (a) without
duplication and to the extent deducted in the determination of Consolidated Net
Income, (i) Consolidated Interest Expense, (ii) the provision for (or minus any
benefit from) income taxes of the Company and its Subsidiaries, (iii)
depreciation and amortization expense (excluding amortization of turnaround
costs paid by the Company or any of its Subsidiaries), (iv) any non-recurring,
non-cash losses attributable to the sale of operating divisions or Subsidiaries
of the Company, (v) any non-recurring, non-cash extraordinary items reducing
Consolidated Net Income, including any losses attributable to the write-down of
long-lived assets or impairment of intangibles (excluding any write-down of
Inventory), stock based compensation (other than payments made or required to be
made to the ESOP), and amortization of financing costs, (vi) any non-cash loss
attributable to foreign exchange fluctuations, and (vii) any non-cash loss
related to the valuation of derivatives in accordance with SFAS 133 (as amended
by SFAS 137 and SFAS 138), minus (b) without duplication and to the extent
included in the determination of Consolidated Net Income (i) any gains
attributable to the sale of assets outside the ordinary course of business or
any operating divisions or Subsidiaries of the Company, (ii) any non-cash gain
attributable to foreign exchange fluctuations, (iii) any non-cash gain related
to the valuation of derivatives in accordance with SFAS 133 (as amended by SFAS
137 and SFAS 138) and (iv) any other non-cash gains. For the purpose of this
definition, a "non-cash loss" is a loss which involves no cash expenditure by
the subject Person in the current Fiscal Year and a "non-cash gain" is a gain
which involves no cash receipt by the subject Person in the current Fiscal Year.
Notwithstanding the foregoing, the provision for taxes based on the income or
profits of, and the depreciation and amortization of, a Subsidiary of the
Company shall be added to Consolidated Net Income to compute Adjusted EBITDA
only to the extent (and in the same proportion) that the net income of such
Subsidiary was included in calculating Consolidated Net Income and only if a
corresponding amount would be permitted at the date of determination to be
distributed to the Company by such Subsidiary without prior approval (that has
not been obtained), pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to such Subsidiary or its stockholders.
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"ADMINISTRATIVE AGENT" has the meaning assigned to that term
in the introduction to this Agreement and also means and includes any successor
Administrative Agent appointed pursuant to subsection 9.5A.
"AFFILIATE" of any specified Person means any other Person,
directly or indirectly, controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. For
purposes of this definition, "control" of a Person means the power, directly or
indirectly, either to (i) vote 10% or more of the Capital Stock having ordinary
voting power for the election of directors of such Person or (ii) direct or
cause the direction of the management and policies of such Person whether by
contract or otherwise. Notwithstanding anything herein to the contrary, in no
event shall any Agent or any Lender be considered an "Affiliate" of any Loan
Party.
"AFFILIATE TRANSACTION" has the meaning assigned to that term
in subsection 6.8A.
"AGENTS" means Administrative Agent, Documentation Agent and
other agents appointed in accordance with the terms of this Agreement.
"AGREEMENT" means this
Credit Agreement dated as of November
25, 2002, as it may be amended, supplemented or otherwise modified from time to
time.
"APPROVED FUND" means a Fund that is administered or managed
by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an
Affiliate of an entity that administers or manages a Lender.
"ASSET DISPOSITION" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
the Company or any of its Subsidiaries, including any disposition by means of a
merger or consolidation (each referred to for the purposes of this definition as
a "disposition"), of (i) any shares of Capital Stock of a Subsidiary of the
Company (other than directors' qualifying shares or shares required by
applicable law to be held by a Person other than Company or any of its
Subsidiaries), or (ii) all or substantially all the assets of any division or
line of business of the Company or any of its Subsidiaries or (iii) any other
assets of the Company or any of its Subsidiaries outside of the ordinary course
of business of the Company or such Subsidiary (other than, in the case of (i),
(ii) and (iii) above, (y) a disposition by a Subsidiary of the Company to the
Company of an asset (but not the disposition of a liability) and (z) for
purposes of subsection 6.7 only, a disposition that constitutes a Restricted
Payment permitted by subsection 6.5 or a disposition specifically excepted from
the definition of Restricted Payment); provided, however, that any disposition
of assets (other than sales of Inventory) having a fair market value in excess
of $500,000 shall be deemed to be outside of the ordinary course of business.
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"ASSIGNMENT AGREEMENT" means an Assignment Agreement in
substantially the form of Exhibit VI annexed hereto.
"ATTRIBUTABLE DEBT" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Senior Subordinated Notes, compounded annually) of
the total obligations of the lessee for rental payments during the remaining
term of the lease included in such Sale/Leaseback Transaction (including any
period for which such lease has been extended).
"AVERAGE LIFE" means, as of the date of determination, with
respect to any Indebtedness or Preferred Stock, the quotient obtained by
dividing (i) the sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment of
such Indebtedness or redemption or similar payment with respect to such
Preferred Stock multiplied by the amount of such payment by (ii) the sum of all
such payments.
"BANKRUPTCY CODE" means Title 11 of the United States Code
entitled "Bankruptcy", as now and hereafter in effect, or any successor statute.
"BOARD OF DIRECTORS" means the Board of Directors of the
Holding Co. or any committee thereof duly authorized to act on behalf of such
board.
"BUSINESS DAY" means any day excluding Saturday, Sunday and
any day which is a legal holiday under the laws of the State of
New York or is a
day on which banking institutions located in such state are authorized or
required by law or other governmental action to close.
"CAPITAL LEASE", as applied to any Person, means any lease of
any property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for a capital lease on the balance sheet of
that Person.
"CAPITAL LEASE OBLIGATIONS" means an obligation that is
required to be classified and accounted for as a Capital Lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation 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 upon which such lease may be terminated by the
lessee without payment of a penalty.
"CAPITAL STOCK" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt Securities convertible
into such equity.
"CASH" means money, currency or a credit balance in a Deposit
Account.
"CASH EQUIVALENTS" means, as at any date of determination, (i)
marketable Securities (a) issued or directly and unconditionally guaranteed as
to interest and principal by the
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United States Government or (b) issued by any agency of the United States the
obligations of which are backed by the full faith and credit of the United
States, in each case maturing within one year after such date; (ii) 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,
in each case maturing within one year after such date and having, at the time of
the acquisition thereof, the highest rating obtainable from either S&P or
▇▇▇▇▇'▇; (iii) commercial paper maturing no more than one year from the date of
creation thereof and having, at the time of the acquisition thereof, a rating of
at least A-1 from S&P or at least P-1 from ▇▇▇▇▇'▇; (iv) certificates of deposit
or bankers' acceptances maturing within one year after such date and issued or
accepted by any Lender or by any commercial bank organized under the laws of the
United States of America or any state thereof or the District of Columbia that
(a) is at least "adequately capitalized" (as defined in the regulations of its
primary Federal banking regulator) and (b) has Tier 1 capital (as defined in
such regulations) of not less than $100,000,000; and (v) shares of any money
market mutual fund that (a) has at least 95% of its assets invested continuously
in the types of Investments referred to in clauses (i) and (ii) above, (b) has
net assets of not less than $500,000,000, and (c) has the highest rating
obtainable from either S&P or ▇▇▇▇▇'▇.
"CHANGE OF CONTROL" means the occurrence of any of the
following events:
(i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act), other than one or more Permitted Holders,
is or becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, except that for purposes of this clause (i)
such person shall be deemed to have "beneficial ownership" of all
shares that any such person has the right to acquire, whether such
right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 35% of the total voting power of
the then outstanding Voting Stock of the Holding Co.; or
(ii) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors
(together with any new directors whose election by such Board of
Directors or whose nomination for election by the shareholders of the
Holding Co. was approved by a vote of 66-2/3% of the directors of the
Holding Co. then still in office who were either directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
majority of the Board of Directors then in office; or
(iii) the merger or consolidation of the Holding Co., GP
Parent, Limited Partner or Company with or into another Person or the
merger of another Person with or into Holding Co., GP Parent, Limited
Partner or Company, or the sale of all or substantially all of the
assets of the Holding Co., GP Parent, Limited Partner or Company to
another Person (in each case other than a Person that is controlled by
the Permitted Holders); or
(iv) GP Parent ceases to be the sole general partner of the
Company; or
(v) Limited Partner ceases to be the sole limited partner of
the Company; or
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(vi) all of the issued and outstanding Capital Stock of
Limited Partner ceases to be owned by GP Parent; or
(vii) all of the issued and outstanding Capital Stock of GP
Parent ceases to be owned by Holding Co; or
(viii) a "Change of Control" (as such is defined therein)
occurs under the Revolving
Credit Agreement, the Senior Subordinated
Note Indenture or the Senior Discount Note Indenture.
"CLOSING DATE" means the Business Day on or before November
30, 2002 on which all of the conditions precedent set forth in subsection 4.1
have been satisfied or waived and the initial Loans are made.
"CLOSING DATE MORTGAGED PROPERTY" has the meaning assigned to
that term in subsection 4.1M.
"CLOSING DATE MORTGAGES" has the meaning assigned to that term
in subsection 4.1M.
"COLLATERAL" means, collectively, all of the real, personal
and mixed property (including Capital Stock ) in which Liens are purported to be
granted pursuant to the Collateral Documents as security for the Obligations.
"COLLATERAL ACCOUNT" means a deposit account in the name of
the Company at a financial institution reasonably acceptable to Administrative
Agent and Documentation Agent in which Administrative Agent, for the benefit of
the Term Lenders, has a First Priority perfected security interest securing the
Obligations.
"COLLATERAL DOCUMENTS" means the Security Agreement, the
Mortgages, the Control Agreements, if any, and all other instruments or
documents delivered by any Loan Party pursuant to this Agreement or any of the
other Loan Documents in order to grant to Administrative Agent, on behalf of
Lenders, a Lien on any Collateral of such Loan Party as security for the
Obligations or to enable the Administrative Agent to exercise its rights under
such Lien.
"COMMITMENTS" means the commitments of Lenders to make Loans
as set forth in subsection 2.1A.
"COMPANY" has the meaning assigned to that term in the
introduction to this Agreement.
"COMPLIANCE CERTIFICATE" means a certificate substantially in
the form of Exhibit III annexed hereto.
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the
sum of (i) the aggregate of all expenditures (whether paid in cash or other
consideration or accrued as a
6
liability and including that portion of Capital Leases which is capitalized on
the consolidated balance sheet of the Company and its Subsidiaries) by the
Company and its Subsidiaries during that period that, in conformity with GAAP,
are included in "additions to property, plant or equipment" or comparable items
reflected in the consolidated statement of cash flows of the Company and its
Subsidiaries and (ii) all pollution emission credits and similar credits
purchased by the Company and its Subsidiaries, except to the extent that such
pollution emission credits and similar credits are treated as an operating
expense in which case they shall not constitute "Consolidated Capital
Expenditures" hereunder. For purposes of this definition, the purchase price of
equipment that is purchased simultaneously with the trade-in of existing
equipment or with insurance proceeds shall be included in Consolidated Capital
Expenditures only to the extent of the gross amount of such purchase price less
the credit granted by the seller of such equipment for the equipment being
traded in at such time or the amount of such proceeds, as the case may be.
"CONSOLIDATED EXCESS CASH FLOW" means, for any period, an
amount (if positive) equal to, without duplication, (i) the sum of (a) Adjusted
EBITDA (determined by adding back thereto any amount deducted in the calculation
of Consolidated Net Income that was paid, incurred or accrued in violation of
any of the provisions of this Agreement), (b) the amount of any refund received
by the Holding Co. or any of its Subsidiaries (other than any Unrestricted
Subsidiary) during such Fiscal Year on taxes paid by the Holding Co. or any of
its Subsidiaries (other than any Unrestricted Subsidiary), (c) cash dividends,
cash interest and other similar cash payments received by the Company and its
Subsidiaries during such period in respect of investments to the extent not
included in Consolidated Net Income to determine Adjusted EBITDA for such
period, and (d) extraordinary cash gains to the extent subtracted or otherwise
not included in Consolidated Net Income to determine Adjusted EBITDA for such
period, minus (ii) for the same corresponding period, the sum, without
duplication, of the amounts for such period of (a) voluntary and scheduled
repayments of principal of Consolidated Total Debt (excluding the Note
Repurchase but including other repurchases of the Senior Subordinated Notes made
in accordance with the terms of this Agreement) other than any repayments of the
Revolving Credit Facility except to the extent of a corresponding permanent
reduction in the Revolving Commitment thereunder, plus (b) Net Capital
Expenditures, plus (c) Consolidated Interest Expense actually paid in cash, plus
(d) the provision for current taxes based on income of the Company and its
Subsidiaries and payable in Cash with respect to such period to the extent not
deducted in determining Adjusted EBITDA plus (e) any payments, distributions or
advances made by the Company or its Subsidiaries to Holding Co. pursuant to the
Tax Sharing Agreement or as Restricted Payments, in each case, in accordance
with the terms of this Agreement net of any payments, distributions or advances
made by the Holding Co. to the Parent or any of its Subsidiaries.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the
total interest expense, without duplication, of the Company and its consolidated
Subsidiaries determined in accordance with GAAP.
"CONSOLIDATED NET INCOME" means, for any period, the net
income of the Company and its Subsidiaries on a consolidated basis; provided,
however, that there shall not be included in such Consolidated Net Income: (i)
any net income of any Person if such Person is not
7
a Subsidiary of the Company, except that (A) subject to the exclusion contained
in clause (iv) below, the Company's equity in the net income of any such Person
for such period shall be included in such Consolidated Net Income up to the
aggregate amount of cash actually distributed by such Person during such period
to the Company or a Subsidiary as a dividend or other distribution (subject, in
the case of a dividend or other distribution paid to a Subsidiary, to the
limitations contained in clause (iii) below) and (B) Company's equity in a net
loss of any such Person for such period shall be included in determining such
Consolidated Net Income; (ii) any net income (or loss) of any Person acquired by
the Company or its Subsidiaries in a pooling of interests transaction for any
period prior to the date of such acquisition; (iii) any net income of any
Subsidiary to the extent that such Subsidiary is subject to restrictions,
directly or indirectly, on the payment of dividends or the making of
distributions by such Subsidiary, directly or indirectly, to the Company, except
that (A) subject to the exclusion contained in clause (iv) below, the Company's
equity in the net income of any such Subsidiary for such period shall be
included in such Consolidated Net Income up to the aggregate amount of cash
actually distributed by such Subsidiary during such period to the Company or
another Subsidiary of the Company as a dividend or other distribution (subject,
in the case of a dividend or other distribution paid to another Subsidiary, to
the limitation contained in this clause) and (B) Company's equity in a net loss
of any such Subsidiary for such period shall be included in determining such
Consolidated Net Income; (iv) any gain or loss realized upon the sale or other
disposition of any assets of the Company or its consolidated Subsidiaries
(including pursuant to any Sale/Leaseback Transaction) which is not sold or
otherwise disposed of in the ordinary course of business and any gain or loss by
the Company or any of its consolidated Subsidiaries realized upon the sale or
other disposition of any Capital Stock of any Person; (v) extraordinary gains or
losses and (vi) any gains realized in connection with any repurchase of
Indebtedness.
"CONSOLIDATED TOTAL DEBT" means, as at any date of
determination, without duplication, the aggregate principal amount of all
Indebtedness of the Company and its Subsidiaries determined on a consolidated
basis in accordance with GAAP.
"CONTINGENT OBLIGATION", as applied to any Person, means any
direct or indirect liability, contingent or otherwise, of that Person (i) with
respect to any Indebtedness, lease, dividend or other obligation of another if
the primary purpose or intent thereof by the Person incurring the Contingent
Obligation is to provide assurance to the obligee that such obligation of
another will be paid or discharged, or that any agreements relating thereto will
be complied with, or that the obligees will be protected (in whole or in part)
against loss in respect thereof, (ii) with respect to any letter of credit
issued for the account of that Person or as to which that Person is otherwise
liable for reimbursement of drawings, or (iii) under Hedge Agreements.
Contingent Obligations shall include (a) the direct or indirect guaranty,
endorsement (otherwise than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale with recourse by such
Person of the obligation of another, (b) the obligation to make take-or-pay or
similar payments if required regardless of non-performance by any other party or
parties to an agreement, and (c) any liability of such Person for the obligation
of another through any agreement (contingent or otherwise) (1) to purchase,
repurchase or otherwise acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such obligation (whether in the
form of loans, advances, stock purchases, capital contributions or
8
otherwise) or (2) to maintain the solvency or any balance sheet item, level of
income or financial condition of another if, in the case of any agreement
described under subclauses (1) or (2) of this sentence, the primary purpose or
intent thereof is as described in the preceding sentence. The amount of any
Contingent Obligation shall be equal to the amount of the obligation so
Guaranteed or otherwise supported or, if less, the amount to which such
Contingent Obligation is specifically limited.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any Security issued by that Person or of any indenture, mortgage,
deed of trust, contract, undertaking, agreement or other instrument to which
that Person is a party or by which it or any of its properties is bound or to
which it or any of its properties is subject.
"CONTROL AGREEMENT" means an agreement, satisfactory in form
and substance to Administrative Agent and executed by the financial institution
at which a Deposit Account is maintained, pursuant to which such financial
institution confirms and acknowledges Administrative Agent's security interest
in such Deposit Account, and agrees that the financial institution will comply
with instructions originated by Administrative Agent as to disposition of funds
in the Deposit Account, without further consent by Company or any Subsidiary and
waives its right to set off with respect to amounts in the Deposit Account,
subject to any rights of the Revolving Lenders in the case of Revolver Primary
Collateral.
"CSFB" has the meaning assigned to that term in the
introduction to this Agreement.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or
similar account maintained with a Person engaged in the business of banking,
including a savings bank, savings and loan association, credit union or trust
company.
"DISQUALIFIED STOCK" means, with respect to any Person, any
Capital Stock which by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable) or upon the happening of any
event (i) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise, (ii) is convertible or exchangeable for Indebtedness or
Disqualified Stock or (iii) is redeemable at the option of the holder thereof,
in whole or in part, in each case on or prior to September 1, 2008.
"DOLLARS" and the sign "$" mean the lawful money of the United
States of America.
"ELIGIBLE ASSIGNEE" means (i) any Lender, any Affiliate of any
Lender and any Approved Fund of any Lender; and (ii) (a) a commercial bank
organized under the laws of the United States or any state thereof; (b) a
savings and loan association or savings bank organized under the laws of the
United States or any state thereof; (c) a commercial bank organized under the
laws of any other country or a political subdivision thereof; provided that (1)
such bank is acting through a branch or agency located in the United States or
(2) such bank is organized under the laws of a country that is a member of the
Organization for Economic Cooperation and Development or a political subdivision
of such country; and (d) any other entity that is an
9
"accredited investor" (as defined in Regulation D under the Securities Act) that
extends credit or buys loans as one of its businesses including insurance
companies, mutual or other funds and lease financing companies; provided that
neither Company nor any Affiliate of the Company shall be an Eligible Assignee.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as
defined in Section 3(3) of ERISA which is or was maintained or contributed to by
the Company, any of its Subsidiaries or any of their respective ERISA
Affiliates.
"ENVIRONMENTAL CLAIM" refers to any complaint, summons,
citation, notice, directive, order, claim, litigation, investigation, notice of
violation, judicial or administrative proceeding, judgment, letter or other
communication from any Governmental Authority, department, bureau, office or
other authority, or any third party involving violations of Environmental Laws
or Releases of Hazardous Materials from (i) any assets, properties or businesses
of the Company or any of its Subsidiaries or any predecessor in interest; (ii)
from adjoining properties or businesses; or (iii) from or onto any facilities
which received Hazardous Materials generated by the Company or any of its
Subsidiaries or any predecessor in interest.
"ENVIRONMENTAL INDEMNITY" has the meaning assigned to that
term in subsection 4.1M(vii).
"ENVIRONMENTAL LAWS" includes the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. 9601 et seq., as
amended; the Resource Conservation and Recovery Act ("RCRA), 42 U.S.C. 6901 et
seq., as amended; the Clean Air Act ("CAA"), 42 U.S.C. 7401 et seq., as amended;
the Clean Water Act ("CWA"), 33 U.S.C. 1251 et seq., as amended; the
Occupational Safety and Health Act ("OSHA"), 29 U.S.C. 655 et seq., and any
other federal, state, local or municipal laws, statutes, regulations, guidance
documents, Governmental Authorizations, rules, ordinances, or any other
requirements of any Government Authority relating to imposing liability or
establishing standards of conduct for protection of the environment or with
respect to Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor thereto.
"ERISA AFFILIATE", as applied to any Person, means (i) any
corporation that is a member of a controlled group of corporations within the
meaning of Section 414(b) of the Internal Revenue Code of which that Person is a
member; (ii) any trade or business (whether or not incorporated) that is a
member of a group of trades or businesses under common control within the
meaning of Section 414(c) of the Internal Revenue Code of which that Person is a
member; and (iii) any member of an affiliated service group within the meaning
of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any
corporation described in clause (i) above or any trade or business described in
clause (ii) above is a member. Any former ERISA Affiliate of a Person or any of
its Subsidiaries shall continue to be considered an ERISA Affiliate of such
Person or such Subsidiary within the meaning of this definition with respect to
the period such entity was an ERISA Affiliate of such Person or such Subsidiary
and with
10
respect to liabilities arising after such period for which such Person or such
Subsidiary could be liable under the Internal Revenue Code or ERISA.
"ERISA EVENT" means (a) a "reportable event" within the
meaning of Section 4043 of ERISA and the regulations issued thereunder with
respect to a Pension Plan, (b) a withdrawal by a Loan Party or any ERISA
Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA) or a cessation of operations which is treated as such a withdrawal under
Section 4062(e) of ERISA, (c) a complete or partial withdrawal by a Loan Party
or any ERISA Affiliate from a Multi-employer Plan or notification that a
Multi-employer Plan is in reorganization or insolvent, (d) the filing of a
notice of intent to terminate, the treatment of a Pension Plan or Multi-employer
Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the
commencement of proceedings by the PBGC to terminate a Pension Plan or the
termination, insolvency, or reorganization of a Multi-employer Plan, (e) the
occurrence of an event or condition which might reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or Multi-employer Plan,
or (f) the imposition of any liability under Title IV of ERISA, other than for
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon a Loan
Party or any ERISA Affiliate.
"ESOP" means the Company's Employee Stock Ownership Plan.
"ESOP OFFSET" means the amount by which the payments made by
the Company pursuant to subsection 6.5B(ii) of this Agreement in any Fiscal Year
exceed $3,000,000 in the aggregate for such Fiscal Year.
"EVENT OF DEFAULT" means each of the events set forth in
Section 8.
"EXCESS AVAILABILITY" means, as of any date of determination,
(i) the amount of Revolving Availability (after giving effect to all sublimits
and reserves applicable under the Revolving
Credit Agreement), minus (ii) the
Aggregate Revolver Outstandings (as defined in the Revolving
Credit Agreement as
in effect on the date hereof), plus (iii) the aggregate amount of cash and Cash
Equivalents of the Company, to the extent the use of such cash and Cash
Equivalents is not restricted and the Company may readily use such cash and Cash
Equivalents to pay its obligations as they become due, minus (iv) the aggregate
amount, if any, of all trade payables of the Company aged in excess of 50 days
from their respective due dates and all book overdrafts in excess of their
historical practices with respect thereto.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"EXISTING
CREDIT AGREEMENT" means that certain Amended and
Restated
Credit Agreement dated as of June 30, 2000 among the Company, GP
Parent, Limited Partner and The Chase Manhattan Bank, the lenders party from
time to time thereto, and the other agents named therein, as amended to date.
11
"EXTRAORDINARY RECEIPTS" means any cash received by any Loan
Party or any of the Company's Subsidiaries not in the ordinary course of
business (and not consisting of Net Available Cash, Net Cash Proceeds, Net
Insurance/Condemnation Proceeds or Consolidated Excess Cash Flow), including,
without limitation, (i) foreign, United States, state or local tax refunds, (ii)
pension plan reversions, (iii) proceeds of insurance, (iv) judgments, proceeds
of settlements or other consideration of any kind in connection with any cause
of action, (v) condemnation awards (and payments in lieu thereof), (vi)
indemnity payments, (vii) any purchase price adjustment received in connection
with any purchase agreement and (viii) awards or other compensation paid to any
Loan Party or any of the Company's Subsidiaries by (or guaranteed by) any
Governmental Authority in connection with any change in legislation affecting
the business of the Company or any of its Subsidiaries.
"FACILITIES" means any and all real property (including all
buildings, fixtures or other improvements located thereon) now, hereafter or
heretofore owned, leased, operated or used by the Company or any of its
Subsidiaries or any of their respective predecessors or Affiliates.
"FIRST PRIORITY" means, with respect to any Lien purported to
be created in any Collateral (other than the Revolver Primary Collateral)
pursuant to any Collateral Document, that (i) such Lien is perfected and has
priority over any other Lien on such Collateral (other than Permitted
Encumbrances) and (ii) such Lien is the only Lien (other than Permitted
Encumbrances) to which such Collateral is subject.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of the Loan Parties and
the Company's Subsidiaries ending on June 30 of each calendar year. For purposes
of this Agreement, any particular Fiscal Year shall be designated by reference
to the calendar year in which such Fiscal Year ends.
"FIXED CHARGE COVERAGE RATIO" means, as of the end of any
Fiscal Quarter, determined for the preceding four Fiscal Quarters then ended,
the ratio of Adjusted EBITDA to Fixed Charges.
"FIXED CHARGES" means, with respect to any period, without
duplication, the sum of the following with respect to the Company and its
Subsidiaries (a) interest on Indebtedness actually paid in cash during such
period, (b) federal, state, local, and foreign income taxes paid in cash net of
refunds and reimbursements, (c) Net Capital Expenditures, (d) scheduled
principal payments of Indebtedness, and (e) any Restricted Payments by the
Company or any of its Subsidiaries (other than any Unrestricted Subsidiaries)
other than (i) Restricted Payments made in Capital Stock of the Person making
such Restricted Payment, (ii) Restricted Payments made by the Company to the
ESOP in accordance with the terms of this Agreement to the extent that
Consolidated Net Income for such period was reduced for such Restricted
Payments, and (iii) Restricted Payments made by the Company to prepay, redeem or
repurchase the Senior Subordinated Notes in accordance with subsection 6.5(vii).
12
"FLOOD HAZARD PROPERTY" means a Closing Date Mortgaged
Property or an Additional Mortgaged Property located in an area designated by
the Federal Emergency Management Agency as having special flood or mud slide
hazards.
"FOREIGN PLAN" means any benefit plan established or
maintained outside of the United States which a Loan Party maintains, sponsors,
or to which such Person has any obligation or liability and which provides or
otherwise makes available retirement or deferred benefits of any kind whatsoever
to employees.
"FUND" means any Person (other than a natural Person) that is
(or will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business.
"FUNDED DEBT", as applied to any Person, means all
Indebtedness of that Person (including any current portions thereof) which by
its terms or by the terms of any instrument or agreement relating thereto
matures more than one year from, or is directly renewable or extendable at the
option of that Person to a date more than one year from (including an option of
that Person under a revolving credit or similar agreement obligating the lender
or lenders to extend credit over a period of one year or more from), the date of
the creation thereof.
"FUNDING AND PAYMENT ACCOUNT" means the account specified in
the payment instructions appearing below Administrative Agent's signature hereto
or at the account designated as such in any other written notice delivered by
Administrative Agent to the Company and each Lender.
"FUNDING AND PAYMENT OFFICE" means (i) the office of
Administrative Agent located at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or
(ii) such other office of Administrative Agent as may from time to time
hereafter be designated as such in a written notice delivered by Administrative
Agent to the Company and each Lender.
"GAAP" means, subject to the limitations on the application
thereof set forth in subsection 1.2, generally accepted accounting principles
set forth in opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, in each case as the same are applicable to the
circumstances as of the date of determination.
"GOVERNING BODY" means the board of directors or other body
having the power to direct or cause the direction of the management and policies
of a Person that is a corporation, partnership, trust or limited liability
company.
"GOVERNMENT AUTHORITY" means any political subdivision or
department thereof, any other governmental or regulatory body, commission,
central bank, board, bureau, organ or instrumentality or any court, in each case
whether federal, state, local or foreign.
13
"GOVERNMENTAL AUTHORIZATION" means any permit, license,
registration, authorization, plan, directive, consent, order or consent decree
of or from, or notice to, any Government Authority.
"GP PARENT" means TPC Holding Corp., a Delaware corporation.
"GUARANTORS" means Holding Co., the GP Parent and the Limited
Partner.
"GUARANTEE" means any obligation, contingent or otherwise, of
any Person directly or indirectly Guaranteeing any Indebtedness of any Person
and any obligation, direct or indirect, contingent or otherwise, of such Person
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness of such Person (whether arising by virtue of agreements to
keep-well, to purchase assets, goods, securities or services, to take-or-pay or
to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Indebtedness
of the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part); provided, however, that the term "Guarantee"
shall not include endorsements for collection or deposit in the ordinary course
of business. The term "Guarantee" used as a verb has a corresponding meaning.
"HAZARDOUS MATERIALS" means without regard to amount and/or
concentration (i) any chemical, material or substance at any time defined as or
included in the definition of "hazardous substances", "hazardous wastes",
"hazardous materials", "extremely hazardous waste", "acutely hazardous waste",
"radioactive waste", "biohazardous waste", "pollutant", "toxic pollutant",
"contaminant", "restricted hazardous waste", "infectious waste", "toxic
substances", or any other term or expression intended to define, list or
classify substances by reason of properties harmful to health, safety or the
indoor or outdoor environment (including harmful properties such as
ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive
toxicity, "TCLP toxicity" or "EP toxicity" or words of similar import under any
applicable Environmental Laws); (ii) any oil, petroleum, petroleum fraction or
petroleum derived substance; (iii) any drilling fluids, produced waters and
other wastes associated with the exploration, development or production of crude
oil, natural gas or geothermal resources; (iv) any flammable substances or
explosives; (v) any radioactive materials; (vi) any asbestos-containing
materials; (vii) urea formaldehyde foam insulation; (viii) electrical equipment
which contains any oil or dielectric fluid containing polychlorinated biphenyls;
(ix) pesticides; and (x) any other chemical, material or substance, exposure to
which is prohibited, limited or regulated by any Government Authority or which
may or could pose a hazard to the health and safety of the owners, occupants or
any Persons in the vicinity of any Facility or to the indoor or outdoor
environment.
"HAZARDOUS MATERIALS ACTIVITY" means any past, current,
proposed or threatened activity, event or occurrence involving any Hazardous
Materials, including the use, manufacture, possession, storage, holding,
presence, existence, location, Release, threatened Release, discharge,
placement, generation, transportation, processing, construction, treatment,
abatement, removal, remediation, disposal, disposition or handling of any
Hazardous Materials, and any corrective action or response action with respect
to any of the foregoing.
14
"HEDGE AGREEMENT" means any and all transactions, agreements,
or documents now existing or hereafter entered into, which provide for an
interest rate, credit, commodity, or equity swap, cap, floor, collar, forward
foreign exchange transaction, currency swap, cross currency rate swap, currency
option, or any combination of, or option with respect to, these or similar
transactions, for the purpose of hedging a Person's exposure to fluctuations in
interest or exchange rates, loan, credit exchange, security, or currency
valuations, or commodity prices.
"HEDGING OBLIGATIONS" of any Person means the obligations of
such Person pursuant to any Hedge Agreement.
"HIGHEST LAWFUL RATE" means, with respect to any Agent or any
Lender, the maximum non-usurious interest rate, if any, that at any time or from
time to time may be contracted for, taken, reserved, charged or received on the
Obligations under laws applicable to such Agent or such Lender which are
currently in effect or, to the extent allowed by law, under such applicable laws
which may hereafter be in effect and which allow a higher maximum non-usurious
interest rate than applicable laws now allow.
"HOLDING CO." means Texas Petrochemical Holdings, Inc., a
Delaware corporation.
"HOUSTON FACILITY" means the Company's plant located at ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, together with all land owned or
leased by the Company adjacent or in proximity thereto, all improvements or
additions to such plant or land, including docks, pipelines and facilities for
traincar and truck service, all equipment, catalysts and other items used in the
production, processing, purification, finishing, extraction, hydrogenation,
dehydrogenation, dimerization, oxo-dehydrogenation, back-cracking, skeletal
isomerization or fractionation of chemical products, feedstocks or
intermediaries.
"INCUR" means issue, assume, Guarantee, incur or otherwise
become liable for Indebtedness; provided, however, that any Indebtedness of a
Person existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
Subsidiary at the time it becomes a Subsidiary. The term "Incurrence" when used
as a noun shall have a correlative meaning. The accretion of principal of a
non-interest bearing or other discount security shall be deemed the Incurrence
of Indebtedness.
"INDEBTEDNESS" means, with respect to any Person on any date
of determination (without duplication),
(i) the principal of and premium (if any) in respect of (A)
indebtedness of such Person for money borrowed and (B) indebtedness
evidenced by notes, debentures, bonds or other similar instruments for
the payment of which such Person is responsible or liable;
(ii) Capital Lease Obligations of such Person and all
Attributable Debt in respect of Sale/Leaseback Transactions entered
into by such Person;
15
(iii) obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations
of such Person and all obligations of such Person under any title
retention agreement (but excluding trade accounts payable and other
accounts arising in the ordinary course of business and not outstanding
for more than 90 days after the date such payable was created);
(iv) obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction;
(v) obligations of such Person with respect to the redemption,
repayment or other repurchase of any Disqualified Stock or, with
respect to any Subsidiary of such Person, any Preferred Stock (but
excluding, in each case, any accrued dividends);
(vi) obligations of the type referred to in clauses (i)
through (v) of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable,
directly or indirectly, as obligor, guarantor or otherwise, including
by means of any Guarantee;
(vii) obligations of the type referred to in clauses (i)
through (vi) of other Persons secured by any Lien on any property or
asset of such Person (whether or not such obligation is assumed by such
Person), the amount of such obligation being deemed to be the lesser of
the value of such property or assets or the amount of the obligation so
secured;
(viii) to the extent not otherwise included in this
definition, Hedging Obligations of such Person; and
(x) the present value (discounted at the Base Rate (as such
term is defined in the Revolving Credit Agreement)) of lease payments
under synthetic leases.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all obligations as described above and the maximum
liability, upon the occurrence of the contingency giving rise to the obligation,
of any Contingent Obligations at such date. The Indebtedness of any Person shall
include the Indebtedness of any partnership of or joint venture in which such
Person is a general partner or a joint venturer.
"INDEMNIFIED LIABILITIES" has the meaning assigned to that
term in subsection 10.3.
"INDEMNITEE" has the meaning assigned to that term in
subsection 10.3.
"INTELLECTUAL PROPERTY" means all patents, trademarks,
tradenames, copyrights, technology, software, know-how and processes used in or
necessary for the conduct of the business of the Company and its Subsidiaries as
currently conducted that are material to the
16
condition (financial or otherwise), business or operations of the Company and
its Subsidiaries, taken as a whole.
"INTERCREDITOR AGREEMENT" means that certain Intercreditor
Agreement dated of even date herewith between Bank of America, N.A., as
administrative agent under the Revolving Credit Agreement and Administrative
Agent and consented to by the Loan Parties pursuant to that certain Consent of
Debtor and Agreement to be Bound dated of even date herewith made by the Loan
Parties.
"INTEREST PAYMENT DATE" means with respect to any Loan, the
last Business Day of each calendar month of each year, commencing on the first
such date to occur after the Closing Date.
"INTEREST RATE AGREEMENT" means any interest rate swap
agreement, interest rate cap agreement or other financial agreement or
arrangement designed solely to protect Company or any of its Subsidiaries
against fluctuations in interest rates.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended to the date hereof and from time to time hereafter, and any
successor statute.
"INVENTORY" has the meaning given such term in the Security
Agreement.
"INVESTMENT" in any Person means any direct or indirect
advance, loan (other than advances to customers in the ordinary course of
business that are payable in accordance with customary trade terms and are
recorded as accounts receivable on the balance sheet of the Person making the
advance or loan in accordance with GAAP) or other extensions of credit
(including by way of Guarantee or similar arrangement) or capital contribution
to (by means of any transfer of cash or other property to others or any payment
for property or services for the account or use of others), or any purchase or
acquisition of Capital Stock, Indebtedness or other similar instruments issued
by such Person.
"IP COLLATERAL" means, collectively, the Intellectual Property
that constitutes Collateral under the Security Agreement.
"JOINT VENTURE" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal form.
"LANDLORD CONSENT AND ESTOPPEL", with respect to any Leasehold
Property, means a letter, certificate or other instrument in writing from the
lessor under the related lease, satisfactory in form and substance to
Administrative Agent and Documentation Agent, pursuant to which such lessor
agrees, for the benefit of Administrative Agent for the benefit of the Lenders,
(i) that without any further consent of such lessor or any further action on the
part of the Loan Party holding such Leasehold Property, such Leasehold Property
may be encumbered pursuant to a Mortgage and may be assigned to the purchaser at
a foreclosure sale or in a transfer in lieu of such a sale (and to a subsequent
third party assignee if Administrative Agent, any Lender, or an Affiliate of
either so acquires such Leasehold Property), (ii) that such lessor shall
17
not terminate such lease as a result of a default by such Loan Party thereunder
without first giving Administrative Agent notice of such default and at least 60
days (or, if such default cannot reasonably be cured by Administrative Agent
within such period, such longer period as may reasonably be required) to cure
such default, (iii) to such other matters relating to such Leasehold Property as
Administrative Agent and Documentation Agent may reasonably request.
"LEASEHOLD PROPERTY" means any leasehold interest of any Loan
Party as lessee under any lease of real property, other than the Company's
headquarters located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
"LENDER" and "LENDERS" means the Persons identified as
"Lenders" and listed on the signature pages of this Agreement, together with
their successors and permitted assigns pursuant to subsection 10.1.
"LIEN" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof).
"LIMITED PARTNER" means Petrochemical Partnership Holdings,
Inc., a Delaware corporation.
"LOAN" or "LOANS" means one or more of the Term Loans.
"LOAN DOCUMENTS" means this Agreement, the Term Notes, the
Parent Guaranty, the Collateral Documents and the Intercreditor Agreement and
any other instruments, certificates, agreements or other documents executed and
delivered pursuant hereto or thereto otherwise evidencing or securing any Loan
or other Obligation.
"LOAN PARTY" means each of the Holding Co., the GP Parent, the
Limited Partner and the Company and "LOAN PARTIES" means all such Persons,
collectively.
"MARGIN STOCK" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve System as in
effect from time to time.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse effect
upon the business, operations, properties, assets or condition (financial or
otherwise) of the Company on an individual basis or the Loan Parties taken as a
whole or (ii) the impairment of the ability of the Company on an individual
basis or the Loan Parties taken as a whole to perform their respective
Obligations, (iii) an impairment of the ability of Administrative Agent or
Lenders to enforce the Obligations or any Loan Document or (iv) an adverse
effect upon the validity, perfection or priority of a Lien in favor of the
Administrative Agent for the benefit of the Lenders on any of the Collateral
with a value of $2,000,000 or more.
"MATERIAL CONTRACT" means (i) any contract or arrangement to
which the Company or any of its Subsidiaries is a party involving aggregate
consideration payable to or by such Person or such Subsidiary of $10,000,000 or
more (other than purchase, service and sales
18
agreements in the ordinary course of the business of the Company or such
Subsidiary and other than contracts that by their terms may be terminated by
such Person or Subsidiary in the ordinary course of its business upon less than
60 days' notice without penalty or premium) and (ii) any contract or other
arrangement to which the Company or any of its Subsidiaries is a party (other
than the Loan Documents and the Related Agreements) for which breach,
nonperformance, cancellation or failure to renew could have a Material Adverse
Effect.
"MATERIAL LEASEHOLD PROPERTY" means a Leasehold Property
reasonably determined by Administrative Agent and Documentation Agent to be of
material value as Collateral or of material importance to the operations of the
Company or any of its Subsidiaries.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"MORTGAGE" means a security instrument (whether designated as
a deed of trust or a mortgage or by any similar title) executed and delivered by
any Loan Party, substantially in the form of Exhibit X annexed hereto or in such
other form as may be approved by Administrative Agent and Documentation Agent in
their sole discretion, in each case with such changes thereto as may be
recommended by Administrative Agent's local counsel based on local laws or
customary local mortgage or deed of trust practices, as such security instrument
or amendment may be amended, supplemented or otherwise modified from time to
time. "MORTGAGES" means all such instruments, including the Closing Date
Mortgages and any Additional Mortgages, collectively.
"MULTIEMPLOYER PLAN" means a "multi-employer plan" as defined
in Section 4001(a)(3) of ERISA which is or was at any time during the current
calendar year or the immediately preceding six (6) calendar years contributed to
by a Loan Party or any ERISA Affiliate.
"NEGATIVE PLEDGE" means any agreement, contract, or other
arrangement whereby any Loan Party is prohibited from, or would otherwise be in
default as a result of, creating, assuming, Incurring, or suffering to exist,
directly or indirectly, any Lien on any of its assets.
"NET AVAILABLE CASH" from an Asset Disposition means cash
payments received therefrom (including (A) any amount that was originally
maintained as a reserve under GAAP in accordance with clause (iv) below but is
no longer required to be maintained as a reserve under GAAP and (B) any cash
payments received by way of deferred payment of principal pursuant to a note or
installment receivable or otherwise, but only as and when received, but
excluding any other consideration received in the form of assumption by the
acquiring Person of Indebtedness or other obligations relating to such assets or
received in any other non-cash form) in each case net of (i) all actual,
reasonable and documented legal, title and recording tax expenses, brokerage
commissions, underwriting discounts or commissions or sales commissions and
other reasonable fees and expenses (including, without limitation, reasonable
fees and expenses of counsel, accountants and investment bankers) related to
such Asset Disposition or converting to cash any other proceeds received, and
any relocation and severance expenses as a result thereof, and all Federal,
state, provincial, foreign and local taxes required to be accrued as a liability
under GAAP, as a consequence of such Asset Disposition or paid as a result of
such Asset Disposition,
19
(ii) all payments made on any Indebtedness which is secured by any assets
subject to such Asset Disposition or subject to the reasonable approval of
Administrative Agent and Documentation Agent, to comply with applicable law,
(iii) all distributions and other payments required to be made to minority
interest holders in Subsidiaries or joint ventures as a result of such Asset
Disposition and (iv) appropriate amounts provided by the seller as a reserve, in
accordance with GAAP, and reasonably approved by Administrative Agent and
Documentation Agent against any liabilities associated with the property or
other assets disposed in such Asset Disposition and retained by the Company or
any Subsidiary after such Asset Disposition, including, without limitation,
pension and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations
associated with such Asset Disposition (and any such reserves in excess of
$1,000,000 shall be deposited in the Collateral Account and Administrative Agent
shall from time to time disburse to the Company or such Subsidiary from the
Collateral Account such reserves after the receipt by Administrative Agent of
invoices or other documentation reasonably satisfactory to Administrative Agent
and Documentation Agent relating to the application of such reserves). Further,
with respect to an Asset Disposition by a Subsidiary which is not a Wholly Owned
Subsidiary, Net Available Cash shall be reduced by the percentage of equity of
such Subsidiary not owned by the Company.
"NET CAPITAL EXPENDITURES" means, for any period of its
determination, (a) Consolidated Capital Expenditures for such period minus
(b)(i) the amount of Net Available Cash received during such period used to make
Consolidated Capital Expenditures during such period in an aggregate amount not
to exceed $15,000,000 and (ii) the amount of Capital Lease or purchase money
financing proceeds incurred during such period to make Consolidated Capital
Expenditures.
"NET CASH PROCEEDS," with respect to any issuance or sale of
Capital Stock or incurrence of Indebtedness, the cash proceeds (net of all
actual, reasonable and documented attorneys' fees, accountants' fees,
underwriters' or placement agents' fees, discounts or commissions and brokerage,
consultant and other fees actually incurred in connection with such issuance or
sale and net of taxes paid or payable as a result thereof) from the issuance of
Capital Stock of or incurrence of Indebtedness by any Loan Party or any of the
Company's Subsidiaries.
"NET INSURANCE/CONDEMNATION PROCEEDS" means any Cash payments
or proceeds received by any Loan Party or any of the Company's Subsidiaries (i)
under any business interruption or casualty insurance policy in respect of a
covered loss thereunder or (ii) as a result of the taking of any assets of the
Company or any of its Subsidiaries by any Person pursuant to the power of
eminent domain, condemnation or otherwise, or pursuant to a sale of any such
assets to a purchaser with such power under threat of such a taking, in each
case net of any actual and reasonable documented costs incurred by the Company
or any of its Subsidiaries in connection with the adjustment or settlement of
any claims of the Company or such Subsidiary in respect thereof and with respect
to any Revolver Primary Collateral only, net of any amounts required to be
prepaid pursuant to the Revolving Credit Agreement in connection therewith.
"NEW BUSINESS" means business in the chemical industry
reasonably related to the Company's business, which business is to be conducted
by Newco.
20
"NEWCO" means a direct Wholly Owned Subsidiary of Holding Co.
formed for purpose of conducting and/or investing in or acquiring the New
Business, provided, however, that no more than $20,000,000 from Net Cash
Proceeds received by the Holding Co. in connection with sales of its Capital
Stock may be invested in Newco.
"NON-CORE ASSETS" means those assets that are not necessary
for the conduct of Company's business or the business of any of its Subsidiaries
and are described on Schedule 6.7 attached hereto.
"NON-US LENDER" has the meaning assigned to that term in
subsection 2.7(B)(iii)(a).
"NOTICE OF BORROWING" means a notice substantially in the form
of Exhibit I annexed hereto.
"OBLIGATIONS" means all present and future indebtedness,
obligations, and liabilities of each Loan Party to the Agents and the Lenders
under the Loan Documents, whether or not the right of payment in respect of such
claim is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured, unsecured, and whether
or not such claim is discharged, stayed or otherwise affected by any proceeding
referred to in Section 9.01. Without limiting the generality of the foregoing,
the Obligations of each Loan Party under the Loan Documents include (a) the
obligation to pay principal, interest, charges, expenses, fees, attorneys' fees
and disbursements, indemnities and other amounts payable by such Person under
the Loan Documents, and (b) the obligation of such Person to reimburse any
amount in respect of any of the foregoing that any Agent or any Lender (in its
sole discretion) may elect to pay or advance on behalf of such Person.
"OFFICER" means the president, chief executive officer, a vice
president, chief financial officer, treasurer, general partner (if an
individual), managing member (if an individual) or other individual appointed by
the Governing Body or the Organizational Documents of a corporation,
partnership, trust or limited liability company to serve in a similar capacity
as the foregoing.
"OFFICER'S CERTIFICATE", as applied to any Person that is a
corporation, partnership, trust or limited liability company, means a
certificate executed on behalf of such Person by one or more Officers of such
Person or one or more Officers of a general partner or a managing member if such
general partner or managing member is a corporation, partnership, trust or
limited liability company.
"OPERATING LEASE", as applied to any Person, means any lease
(including leases that may be terminated by the lessee at any time) of any
property (whether real, personal or mixed) that is not a Capital Lease other
than any such lease under which that Person is the lessor.
"OPERATING LEASE OBLIGATIONS" means all obligations for the
payment of rent for any real or personal property under leases or agreements to
lease, other than Capital Lease Obligations.
21
"ORGANIZATIONAL DOCUMENTS" means the documents (including
Bylaws, if applicable) pursuant to which a Person that is a corporation,
partnership, trust or limited liability company is organized.
"PARENT GUARANTY" means the Parent Guaranty executed and
delivered by the Holding Co., the GP Parent, and the Limited Partner on the
Closing Date, substantially in the form of Exhibit IX annexed hereto, as such
Parent Guaranty may thereafter be amended, supplemented or otherwise modified
from time to time.
"PARTICIPANT" means a purchaser of a participation in the
rights and obligations under this Agreement pursuant to subsection 10.1C.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, that is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
"PERMITTED ENCUMBRANCES" means the following types of Liens
(excluding any such Lien expressly prohibited by any applicable terms of any of
the Collateral Documents):
(i) Liens granted pursuant to the Collateral Documents;
(ii) Liens (A) which are described on Schedule 6.6 on the
Closing Date, and Liens resulting from the refinancing of the related
Indebtedness (to the extent such refinancing Indebtedness is permitted
by this Agreement), provided that such refinancing is effected on
substantially the same or no less favorable terms, the Indebtedness
secured thereby shall not be increased, and the Liens shall not cover
any additional property and (B) other Liens consented to in writing by
the Requisite Lenders;
(iii) Liens for taxes, fees, assessments, or other charges of
a Governmental Authority which are not delinquent or statutory Liens
for taxes, fees, assessments, or other charges of a Government
Authority; provided that the payment of such taxes which are due and
payable is being contested in good faith and by appropriate proceedings
diligently pursued and as to which adequate financial reserves have
been established in accordance with GAAP on the applicable Loan Party's
books and records and in the case of a Lien with respect to any portion
of the Collateral, such contest proceedings conclusively operate to
stay the sale of, and the exercise of any other enforcement proceeding
against, any portion of the Collateral on account of such Lien;
(iv) Liens consisting of deposits made in the ordinary course
of business in connection with, or to secure payment of, obligations
under worker's compensation, unemployment insurance, social security,
and other similar laws, or to secure the performance of bids, tenders,
or contracts (other than for the repayment of Indebtedness) or to
secure indemnity, performance, or other similar bonds for the
performance of bids, tenders, or contracts (other than for the
repayment of Indebtedness) or to secure statutory
22
obligations (other than liens arising under ERISA or Environmental
Claims) or surety or appeal bonds, or to secure indemnity, performance,
or other similar bonds;
(v) Liens securing the claims or demands of materialmen,
mechanics, carriers, warehousemen, landlords, and other similar
Persons, provided that if any such Lien arises from the nonpayment of
such claims or demands when due, such claims or demands do not exceed
$1,000,000 in the aggregate;
(vi) Liens constituting encumbrances in the nature of
reservations, exceptions, encroachments, easements, rights of way,
covenants running with the land, and other similar title exceptions or
encumbrances affecting any Real Property Asset, including items that
would be disclosed by a current and accurate survey of the Real
Property Assets, provided that any of the foregoing Liens in this
clause (vi) do not in the aggregate materially detract from the value
of such Real Property Asset or materially interfere with its use in the
ordinary conduct of a Loan Party's business and do not secure
obligations for the payment of money;
(vii) Liens which constitute purchase money Liens securing
purchase money obligations permitted under the terms of this Agreement
and Liens under Capital Leases permitted under this Agreement;
(viii) Liens securing the obligations under the Revolving
Credit Agreement and granted in accordance with the terms of the
Revolving Credit Agreement and the Intercreditor Agreement;
(ix) Liens arising from judgments and attachments in
connection with court proceedings, provided that the attachment or
enforcement of such Liens would not result in an Event of Default
hereunder and such Liens are being contested in good faith by
appropriate proceedings diligently pursued, adequate financial reserves
have been established on the applicable Loan Party's books and records
in accordance with GAAP, no material property is subject to a material
risk of loss or forfeiture and a stay of execution pending appeal or
proceeding for review is in effect;
(x) the rights of lessors and lessees under leases and the
rights of licensors and licensees under licenses, in each case executed
in the ordinary course of business, not interfering in any material
respect with the ordinary conduct of such Loan Party's business and not
resulting in a material diminution in the value of any Collateral as
security for the Obligations; and
(xi) statutory right of setoff arising in the ordinary course
of business.
"PERMITTED HOLDERS" means (i) each Person who owns Capital
Stock of the Holding Co. on the Closing Date and is described on Schedule 4.1
annexed hereto, (ii) the ESOP, (iii) any savings or investment plan sponsored by
the Company or Holding Co., (iv) with respect to any Person covered by the
preceding clauses (i) through (iv) (A) in the case of an entity, any Affiliate
of such Person, and (B) in the case of an individual, any spouse, parent,
sibling, child or
23
grandchild (in each case, whether such relationship arises from birth, adoption
or through marriage), or (v) any trust, limited liability company, corporation,
limited or general partnership or other entity, a majority of interest of the
beneficiaries, stockholders, partners or owners (direct or beneficial) of which
are Persons of the type referred to in the preceding clauses (i) through (iv).
"PERMITTED INVESTMENT" means.
(a) (i) Investments in the Company, (ii) Investments owned by
the Loan Parties on the Closing Date as set forth on Schedule 6.22H annexed
hereto, (iii) Investments made by Holding Co. in Newco to the extent of Net Cash
Proceeds received by Holding Co. in connection with a sale of the Capital Stock
of Holding Co. and/or Newco, up to an aggregate maximum of $20,000,000, and
(iii) other Investments in an amount not to exceed $500,000 outstanding at any
time, and
(b) the following if made at a time when no Potential Event of
Default or Event of Default exists or would result therefrom: (i) Investments in
direct obligations of the U.S., or any agency thereof, or obligations guaranteed
by the U.S., provided that such obligations mature within one year from the date
of acquisition thereof; (ii) Investments in certificates of deposit maturing
within one year from the date of Investment, bankers' acceptances, Eurodollar
bank deposits, or overnight bank deposits, in each case issued by, created by,
or with a bank or trust company organized under the laws of the U.S. or any
state thereof having capital and surplus aggregating at least $100,000,000;
(iii) Investments in commercial paper given a rating of "A1" or better by S&P or
"P1" or better by Moody's and maturing not more than ninety (90) days from the
date of creation thereof; (iv) Investments in Interest Rate Agreements entered
into for the purpose of limiting the amount of interest payable under the
Revolving Credit Agreement and not for speculative purposes; (v) Investments in
mutual funds substantially all of the assets of which are comprised of
securities of the types described in clauses (i), (ii), and (iii) preceding; and
(v) loans to executive officers, non-employee directors, and employees of the
Loan Parties made in the ordinary course of business; provided that (A) at the
time of such loan no Potential Event of Default or Event of Default shall exist
or result therefrom and (B) the aggregate amount of such loans made by the Loan
Parties and outstanding at any one time shall not exceed $300,000, calculated
net of any bad debt reserves or writeoffs. In determining the amount of a
Permitted Investment, such Investment shall be valued at the cost of acquisition
thereof.
"PERSON" means and includes natural persons, corporations,
limited partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments (whether federal,
state or local, domestic or foreign, and including political subdivisions
thereof) and agencies or other administrative or regulatory bodies thereof.
"PIK AMOUNT" means the amount of interest due and payable with
respect to the Term Loans at an interest rate of four percent (4%) per annum.
24
"PLAN" means an employee benefit plan (as defined in Section
3(3) of ERISA) which any Loan Party sponsors or maintains or to which any Loan
Party makes, is making, or is obligated to make contributions and includes any
Pension Plan.
"PLEDGED COLLATERAL" has the meaning assigned such term in the
Security Agreement.
"POTENTIAL EVENT OF DEFAULT" means a condition or event that,
after notice or lapse of time or both, would constitute an Event of Default.
"PREFERRED STOCK", as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"PROCEEDINGS" means any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration.
"PRO RATA SHARE" means (i) with respect to all payments,
computations and other matters relating to the Term Loan Commitment or the Term
Loan of any Lender, the percentage obtained by dividing (x) the Term Loan
Exposure of that Lender by (y) the aggregate Term Loan Exposure of all Lenders.
"PTO" means the United States Patent and Trademark Office or
any successor or substitute office in which filings are necessary or, in the
opinion of Administrative Agent, desirable in order to create or perfect Liens
on any IP Collateral.
"REAL PROPERTY ASSET" means, at any time of determination, any
interest then owned by any Loan Party in any real property (whether in fee or as
a leasehold).
"RECEIVABLES" has the meaning assigned to such term in the
Security Agreement.
"RECORDED LEASEHOLD INTEREST" means a Leasehold Property with
respect to which a Record Document (as hereinafter defined) has been recorded in
all places necessary or desirable, in Administrative Agent's reasonable
judgment, to give constructive notice of such Leasehold Property to third-party
purchasers and encumbrancers of the affected real property. For purposes of this
definition, the term "RECORD DOCUMENT" means, with respect to any Leasehold
Property, (a) the lease evidencing such Leasehold Property or a memorandum
thereof, executed and acknowledged by the owner of the affected real property,
as lessor, or (b) if such Leasehold Property was acquired or subleased from the
holder of a Recorded Leasehold Interest, the applicable assignment or sublease
document, executed and acknowledged by such holder, in each case in form
sufficient to give such constructive notice upon recordation and otherwise in
form reasonably satisfactory to Administrative Agent.
"REGISTER" has the meaning assigned to that term in subsection
2.1D.
25
"REGULATION D" means Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"RELATED AGREEMENTS" means collectively, the Revolving Credit
Agreement, the Senior Subordinated Note Indenture, the Senior Discount Note
Indenture and the documents executed in connection therewith.
"RELEASE" means any release, spill, emission, leaking,
pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal,
dumping, leaching or migration of Hazardous Materials into the indoor or outdoor
environment (including the abandonment or disposal of any barrels, containers or
other closed receptacles containing any Hazardous Materials), including the
movement of any Hazardous Materials through the air, soil, surface water or
groundwater.
"REMEDIAL ACTION" means all actions taken to (i) clean up,
remove, remediate, contain, treat, monitor, assess, evaluate or in any other way
address Hazardous Materials in the indoor or outdoor environment; (ii) prevent
or minimize a Release or threatened Release of Hazardous Materials so they do
not migrate or endanger or threaten to endanger public health or welfare or the
indoor or outdoor environment; (iii) perform pre-remedial studies and
investigations and post-remedial operation and maintenance activities; or (iv)
any other actions authorized by 42 U.S.C. 9601.
"REQUISITE LENDERS" means Lenders having or holding more than
50% of the sum of the aggregate Term Loan Exposure of all Lenders.
"RESTRICTED PAYMENT" with respect to any Person means (i) the
declaration or payment of any dividends or any other distributions of any sort
in respect of its Capital Stock (including any payment in connection with any
merger or consolidation involving such Person), other than dividends or
distributions payable solely in its Capital Stock (other than Disqualified
Stock) and dividends or distributions payable solely to the Company or a
Subsidiary of the Company, and other than pro rata dividends or other
distributions made by a Subsidiary of the Company that is not a Wholly Owned
Subsidiary to minority stockholders (or owners of an equivalent interest in the
case of a Subsidiary that is an entity other than a corporation), (ii) the
purchase, redemption or other acquisition or retirement for value of any Capital
Stock of the Company or any other Loan Party held by any Person or of any
Capital Stock of a Subsidiary held by any Affiliate of the Company (other than a
Subsidiary), including the exercise of any option to exchange any Capital Stock
(other than into Capital Stock of the Company that is not Disqualified Stock),
(iii) the purchase, repurchase, redemption, defeasance or other acquisition or
retirement for value, prior to scheduled maturity, scheduled repayment or
scheduled sinking fund payment of any Subordinated Obligations, (iv) the making
of any Investment in any Person (other than a Permitted Investment), or (v) the
return of any Capital Stock to any shareholders or other equity holders of any
Loan Party or any of the Company's Subsidiaries, or the making of any other
distribution of property, assets, shares of Capital Stock, warrants, rights,
options, obligations or securities thereto as such, or (vi) the payment of any
management fees or any other fees or expenses (including the reimbursement
thereof by any Loan Party or any of the Company's Subsidiaries) pursuant to any
management, consulting or other services agreement to
26
any of the shareholders or other equityholders of any Loan Party or any of the
Company's Subsidiaries or other Affiliates, or to any other Subsidiaries or
Affiliates of any Loan Party or (vii) any payments made by any Loan Party to the
ESOP.
"REVOLVER PRIMARY COLLATERAL" means the "Bank Priority
Collateral", as such term is defined in the Intercreditor Agreement (and such
definition is restated in its entirety on Exhibit XI annexed hereto).
"REVOLVING AVAILABILITY" means, as of any date, an amount
equal to the lesser of (i) the Revolving Commitment and (ii) the Borrowing Base
on such date (as the term "Borrowing Base" is defined in the Revolving Credit
Agreement as in effect on the date hereof and after giving effect to the
applicable percentages (as in effect on the date hereof) of Eligible Accounts
Receivable and Eligible Inventory (as such terms are defined in the Revolving
Credit Agreement as in effect on the date hereof) set forth in such definition).
"REVOLVING COMMITMENT" means the total commitment of the
Revolving Lenders to make revolving credit loans under the Revolving Credit
Agreement as from time to time in effect.
"REVOLVING CREDIT AGREEMENT" means that certain Credit
Agreement dated of even date herewith and in effect on the Closing Date among
Company, Bank of America, N.A., as agent as agent for the Revolving Lenders, the
Revolving Lenders and the other agents named therein, as the same may be
amended, modified or changed by amendments, modifications or changes agreed to
by Requisite Lenders in their sole discretion.
"REVOLVING LENDERS" means the lenders party from time to time
to the Revolving Credit Agreement.
"SALE/LEASEBACK TRANSACTION" means an arrangement relating to
property now owned or hereafter acquired whereby the Company transfers such
property to a Person and Company leases it from such Person.
"SEC" means the Securities and Exchange Commission.
"SECOND PRIORITY" means, with respect to any Lien purported to
be created in any Collateral pursuant to any Collateral Document, that (i) such
Lien is perfected and has priority over any other Lien on such Collateral (other
than Permitted Encumbrances) and (ii) such Lien is the only Lien (other than
Permitted Encumbrances) to which such Collateral is subject.
"SECURITIES" means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated, certificated or uncertificated, or otherwise, or in general any
instruments commonly known as "securities" or any certificates of interest,
shares or participations in temporary or interim certificates for the purchase
or acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing.
27
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"SECURITY AGREEMENT" means the Security Agreement executed and
delivered on the Closing Date, substantially in the form of Exhibit IX annexed
hereto, as such Security Agreement may thereafter be amended, supplemented or
otherwise modified from time to time.
"SENIOR DISCOUNT NOTES" means the Senior Discount Notes due
2007 and Series B Senior Discount Notes due 2007 of Holding Co. issued pursuant
to the Senior Discount Note Indenture.
"SENIOR DISCOUNT NOTE INDENTURE" means the Indenture dated as
of July 1, 1996 between GP Parent, as issuer, and Fleet National Bank, as
trustee, pursuant to which Holding Co. issued Senior Discount Notes in the
original principal amount of $57,650,103.55, as amended prior to the Closing
Date.
"SENIOR SECURED INDEBTEDNESS" means the Term Loans and the
Revolving Loans and other extensions of credit made pursuant to the Revolving
Credit Agreement.
"SENIOR SUBORDINATED INDEBTEDNESS" means the Senior
Subordinated Notes and any other Indebtedness of the Company that specifically
provides that such Indebtedness is to rank pari passu with the Senior
Subordinated Notes in right of payment and is not subordinated by its terms in
right of payment to any Indebtedness or other obligation of the Company which is
not "Senior Indebtedness" (as such term is defined in the Senior Subordinated
Note Indenture).
"SENIOR SUBORDINATED NOTES" means the 11 1/8% Senior
Subordinated Notes due 2006 of the Company issued pursuant to the Senior
Subordinated Note Indenture.
"SENIOR SUBORDINATED NOTE INDENTURE" means the Indenture dated
as of July 1, 1996 between the Company, as issuer, and Fleet National Bank, as
trustee, pursuant to which the Company issued the Senior Subordinated Notes in
the original principal amount of $225,000,000.
"SHARED COLLATERAL" has the meaning assigned such term in the
Intercreditor Agreement (and such definition is restated in its entirety on
Exhibit XI annexed hereto).
"SOLVENT", with respect to any Person, means that as of the
date of determination both (i)(a) the then fair saleable value of the property
of such Person is (1) greater than the total amount of liabilities (including
contingent liabilities) of such Person and (2) not less than the amount that
will be required to pay the probable liabilities on such Person's then existing
debts as they become absolute and due considering all financing alternatives and
potential asset sales reasonably available to such Person; (b) such Person's
capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (c) such Person does not intend to
Incur, or believe (nor should it reasonably believe) that it will Incur, debts
beyond its ability to pay such debts as they become due; and (ii) such Person is
"solvent" within the meaning given that term and similar terms under applicable
laws relating to fraudulent transfers
28
and conveyances. For purposes of this definition, the amount of any contingent
liability at any time shall be computed as the amount that, in light of all of
the facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability.
"S&P" means Standard & Poor's.
"STATED MATURITY" means, with respect to any security, the
date specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"SUBORDINATED INDEBTEDNESS" means (A) the Indebtedness
evidenced by the Senior Subordinated Notes and the Senior Discount Notes and (B)
any other Indebtedness of any Loan Party or any of the Company's Subsidiaries
which has been expressly subordinated in right of payment to all Indebtedness of
such Loan Party under the Loan Documents pursuant to a written agreement to that
effect, is in form and substance satisfactory to the Administrative Agent and
the Documentation Agent, and is otherwise on terms and conditions (including,
without limitation, subordination provisions, payment terms, interest rates,
covenants, remedies, defaults and other material terms) satisfactory to the
Administrative Agent and the Documentation Agent.
"SUBSIDIARY", with respect to any Person, means any
corporation, partnership, trust, limited liability company, association, Joint
Venture or other business entity of which more than 50% of the total voting
power of Capital Stock entitled (without regard to the occurrence of any
contingency) to vote in the election of the members of the Governing Body is at
the time owned or controlled, directly or indirectly, by that Person or one or
more of the other Subsidiaries of that Person or a combination thereof.
"SUPPLEMENTAL COLLATERAL AGENT" has the meaning assigned to
that term in subsection 9.1B.
"TAX" or "TAXES" means any present or future tax, levy,
impost, duty, charge, fee, deduction or withholding of any nature and whatever
called, by whomsoever, on whomsoever and wherever imposed, levied, collected,
withheld or assessed, including interest, penalties, additions to tax and any
similar liabilities with respect thereto; except that, in the case of a Lender,
there shall be excluded (i) taxes that are imposed on the overall net income or
net profits (including franchise taxes imposed in lieu thereof) (a) by the
United States, (b) by any other Government Authority under the laws of which
such Lender is organized or has its principal office or maintains its applicable
lending office, or (c) by any jurisdiction solely as a result of a present or
former connection between such Lender and such jurisdiction (other than any such
connection arising solely from such Lender having executed, delivered or
performed its obligations or received a payment under, or enforced, any of the
Loan Documents), and (ii) any branch profits taxes imposed by the United States
or any similar tax imposed by any other jurisdiction in which such Lender is
located.
29
"TBC" means Texas Butylene Chemicals Corp., a Texas
corporation.
"TAX SHARING AGREEMENT" means that certain Tax Sharing
Agreement dated as of July 1, 2000 among the Company, the GP Parent and the
Holding Co.
"TERM LOAN COMMITMENT" means the commitment of a Lender to
make a Term Loan to the Company pursuant to subsection 2.1A(i), and "TERM LOAN
COMMITMENTS" means such commitments of all Lenders in the aggregate.
"TERM LOAN EXPOSURE", with respect to any Lender, means, as of
any date of determination (i) prior to the funding of the Term Loans, that
Lender's Term Loan Commitment, and (ii), after the funding of the Term Loans,
the outstanding principal amount of the Term Loan of that Lender.
"TERM LOANS" means the Loans made by Lenders to the Company
pursuant to subsection 2.1A(i) and any additional obligations of the Company
included in the PIK Amount.
"TERM NOTES" means (i) the promissory notes of the Company
issued pursuant to subsection 2.1E on the Closing Date and (ii) any promissory
notes issued by the Company pursuant to subsection 10.1B(i) in connection with
assignments of the Term Loan Commitments or Term Loans of any Lenders, in each
case, substantially in the form of Exhibit II annexed hereto, as they may be
amended, supplemented or otherwise modified from time to time.
"TERM PRIMARY COLLATERAL" means the "Term Lender Priority
Collateral", as such term is defined in the Intercreditor Agreement (and such
definition is restated in its entirety on Exhibit XI annexed hereto).
"TITLE COMPANY" means one or more title insurance companies
reasonably satisfactory to Administrative Agent.
"▇▇▇" means Texas Olefins Domestic International Sales
Corporation, a Texas corporation.
"TRANSACTION COSTS" has the meaning assigned to that term in
the Recitals.
"UCC" means the Uniform Commercial Code as in effect in any
applicable jurisdiction.
"UNRESTRICTED SUBSIDIARIES" means collectively, Newco, TPH
International Inc., and Texas Petrochemicals Europe Limited.
"VOTING STOCK" of a Person means all classes of Capital Stock
or other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
30
"WHOLLY OWNED SUBSIDIARY" when used to determine the
relationship of a Subsidiary to a Person, means a Subsidiary, all of the issued
and outstanding Capital Stock (other than directors' qualifying shares) of which
shall at the time be owned by such Person or one or more of such Person's Wholly
Owned Subsidiaries.
1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF
CALCULATIONS UNDER AGREEMENT.
Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. Financial statements and other information
required to be delivered by the Company to Lenders pursuant to subsection 6.2
shall be prepared in accordance with GAAP as in effect at the time of such
preparation. Calculations in connection with the definitions, covenants and
other provisions of this Agreement shall utilize GAAP as in effect on the date
of determination, applied in a manner consistent with that used in preparing the
financial statements referred to in subsection 5.3. If at any time any change in
GAAP would affect the computation of any financial ratio or requirement set
forth in any Loan Document, and Company, Administrative Agent, Documentation
Agent or Requisite Lenders shall so request, Administrative Agent, Lenders and
Company shall negotiate in good faith to amend such ratio or requirement to
preserve the original intent thereof in light of such change in GAAP (subject to
the approval of Requisite Lenders), provided that, until so amended, such ratio
or requirement shall continue to be computed in accordance with GAAP prior to
such change therein.
1.3 OTHER DEFINITIONAL PROVISIONS AND RULES OF CONSTRUCTION.
A. Any of the terms defined herein may, unless the context
otherwise requires, be used in the singular or the plural, depending on the
reference.
B. References to "Sections" and "subsections" shall be to
Sections and subsections, respectively, of this Agreement unless otherwise
specifically provided. Section and subsection headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive effect.
C. The use in any of the Loan Documents of the word "include"
or "including", when following any general statement, term or matter, shall not
be construed to limit such statement, term or matter to the specific items or
matters set forth immediately following such word or to similar items or
matters, whether or not non-limiting language (such as "without limitation" or
"but not limited to" or words of similar import) is used with reference thereto,
but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.
31
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 COMMITMENTS; MAKING OF LOANS; THE REGISTER; NOTES.
A. COMMITMENTS. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of the Company
herein set forth, each Lender hereby severally agrees to lend to the Company on
the Closing Date an amount not exceeding its Term Loan Commitment to be used for
the purposes identified in subsection 2.5A. The aggregate amount of the Term
Loan Commitments is $55,000,000 and the amount of each Lender's Term Loan
Commitment will be set forth in an allocation letter delivered to such Lender by
Administrative Agent; provided that the Term Loan Commitments of Lenders shall
be adjusted to give effect to any assignments of the Term Loan Commitments
pursuant to subsection 10.1B. Each Lender's Term Loan Commitment shall expire
immediately and without further action on November 30, 2002 if the Term Loans
are not made on or before that date. The Company may make only one borrowing
under the Term Loan Commitments. Amounts borrowed under this subsection 2.1A and
subsequently repaid or prepaid may not be reborrowed.
B. BORROWING MECHANICS. Term Loans made on the Closing Date
shall be in an aggregate minimum amount of $55,000,000. The Company shall
deliver to Administrative Agent a duly executed Notice of Borrowing by not later
than 10:00 a.m.,
New York time, at least one Business Day in advance of the
proposed Closing Date.
Company shall notify Administrative Agent prior to the funding
of any Loans if any of the matters to which the Company is required to certify
in the applicable Notice of Borrowing is no longer true and correct as of the
Closing Date, and the acceptance by the Company of the proceeds of any Loans
shall constitute a re-certification by the Company, as of the Closing Date, as
to the matters to which the Company is required to certify in the applicable
Notice of Borrowing.
A Notice of Borrowing shall be irrevocable, and Company shall
be bound to make a borrowing.
C. DISBURSEMENT OF FUNDS. All Loans under this Agreement shall
be made by Lenders simultaneously and proportionately to their respective Pro
Rata Shares, it being understood that neither Administrative Agent nor any
Lender shall be responsible for any default by any other Lender in that other
Lender's obligation to make a Loan requested hereunder nor shall the Commitment
of any Lender to make the particular type of Loan requested be increased or
decreased as a result of a default by any other Lender in that other Lender's
obligation to make a Loan requested hereunder. Promptly after receipt by
Administrative Agent of a Notice of Borrowing pursuant to subsection 2.1B (or
telephonic notice in lieu thereof), Administrative Agent shall notify each
Lender of the proposed borrowing. Each such Lender shall make the amount of its
Loan available to Administrative Agent not later than 12:00 Noon (
New York City
time) on the Closing Date, in each case in same day funds in Dollars, at the
Funding and Payment Office. Upon satisfaction or waiver of the conditions
precedent specified in subsections 4.1, Administrative Agent shall make the
proceeds of such Loans available to the Company on the Closing Date by causing
an amount of same day funds in Dollars equal to the proceeds of all
32
such Loans received by Administrative Agent from Lenders to be credited to the
account designated by the Company in the Notice of Borrowing.
Unless Administrative Agent shall have been notified by any
Lender prior to the Closing Date that such Lender does not intend to make
available to Administrative Agent the amount of such Lender's Loan requested on
the Closing Date, Administrative Agent may assume that such Lender has made such
amount available to Administrative Agent on the Closing Date and Administrative
Agent may, in its sole discretion, but shall not be obligated to, make available
to the Company a corresponding amount on the Closing Date. If such corresponding
amount is not in fact made available to Administrative Agent by such Lender,
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender together with interest thereon, for each day from the
Closing Date until the date such amount is paid to Administrative Agent, at the
customary rate set by Administrative Agent for the correction of errors among
banks for three Business Days and thereafter at the interest rate otherwise
payable hereunder. If such Lender does not pay such corresponding amount
forthwith upon Administrative Agent's demand therefor, Administrative Agent
shall promptly notify Company and Company shall immediately pay such
corresponding amount to Administrative Agent together with interest thereon, for
each day from the Closing Date until the date such amount is paid to
Administrative Agent, at the interest rate payable hereunder. Nothing in this
subsection 2.1C shall be deemed to relieve any Lender from its obligation to
fulfill its Commitments hereunder or to prejudice any rights that Company may
have against any Lender as a result of any default by such Lender hereunder.
D. THE REGISTER. Administrative Agent, acting for these
purposes solely as an agent of the Company (it being acknowledged that
Administrative Agent, in such capacity, and its officers, directors, employees,
agent and affiliates shall constitute Indemnitees under subsection 10.3), shall
maintain (and make available for inspection by the Company upon reasonable prior
notice at reasonable times) at its address referred to in subsection 10.8 a
register for the recordation of, and shall record, the names and addresses of
Lenders and the Term Loan Commitment and Term Loans of each Lender from time to
time (the "REGISTER"). The Company and Administrative Agent shall deem and treat
the Persons listed as Lenders in the Register as the holders and owners of the
corresponding Commitments and Loans listed therein for all purposes hereof; all
amounts owed with respect to any Commitment or Loan shall be owed to the Lender
listed in the Register as the owner thereof; and any request, authority or
consent of any Person who, at the time of making such request or giving such
authority or consent, is listed in the Register as a Lender shall be conclusive
and binding on any subsequent holder, assignee or transferee of the
corresponding Commitments or Loans. Each Lender shall record on its internal
records the amount of its Loans and Commitments and each payment in respect
hereof, and any such recordation shall be conclusive and binding on Company,
absent manifest error, subject to the entries in the Register, which shall,
absent manifest error, govern in the event of any inconsistency with any
Lender's records. Failure to make any recordation in the Register or in any
Lender's records, or any error in such recordation, shall not affect any Loans
or Commitments or any Obligations in respect of any Loans.
E. NOTES. The Company shall execute and deliver on the Closing
Date to Lenders (or to Administrative Agent for Lenders) a Term Note
substantially in the form of
33
Exhibit II annexed hereto to evidence each Lender's Term Loan, in the principal
amount of that Lender's Term Loan and with other appropriate insertions.
2.2 INTEREST ON THE LOANS.
A. RATE OF INTEREST. Subject to the provisions of subsection
2.7, each Term Loan shall bear interest on the unpaid principal amount thereof
from the date made through maturity (whether by acceleration or otherwise) at a
rate per annum equal to 14% per annum.
B. PIK AMOUNT. The Company shall, so long as no Event of
Default has occurred and is continuing and in the absence of an election by the
Company to pay such PIK Amount in cash, pay the PIK Amount of interest on such
Interest Payment Date by adding to the principal of the Term Loans an amount
equal to the PIK Amount. Upon giving effect to the payment of any PIK Amount,
references to the Term Loans shall include the obligations of the Company
included in the PIK Amount as represented by the Term Notes. If on such Interest
Payment Date an Event of Default exists, such PIK Amount shall be paid in cash.
C. INTEREST PAYMENTS. Subject to the provisions of subsections
2.2B (with respect to the PIK Amount) and 2.2D, interest on each Loan shall be
payable in cash and arrears on and to each Interest Payment Date applicable to
that Loan, upon any prepayment of that Loan (to the extent accrued on the amount
being prepaid) and at maturity (including final maturity).
D. DEFAULT RATE. If any Event of Default shall have occurred
and be continuing, all Obligations shall thereafter bear interest (including
post-petition interest in any proceeding under the Bankruptcy Code or other
applicable bankruptcy laws) payable on demand at a rate which is 2% per annum in
excess of the interest rate otherwise payable hereunder. Payment or acceptance
of the increased rates of interest provided for in this subsection 2.2D is not a
permitted alternative to timely payment and shall not constitute a waiver of any
Event of Default or otherwise prejudice or limit any rights or remedies of
Administrative Agent or any Lender.
E. COMPUTATION OF INTEREST. Interest on the Loans shall be
computed on the basis of a 360 day year for the actual number of days elapsed in
the period during which it accrues. In computing interest on any Loan, the date
of the making of such Loan or the first day of an interest period applicable to
such Loan shall be included, and the date of payment of such Loan or the
expiration date of an interest period applicable to such Loan shall be excluded;
provided that if a Loan is repaid on the same day on which it is made, one day's
interest shall be paid on that Loan.
F. MAXIMUM RATE. It is the intention of the parties hereto
that Administrative Agent and each Lender shall conform strictly to usury laws
applicable to it. Accordingly, if the transactions contemplated hereby or by any
other Loan Document would be usurious as to any Agent or Lender under laws
applicable to it (including the laws of the United States of America and the
State of
New York or any other jurisdiction whose laws may be mandatorily
applicable to such Agent or Lender notwithstanding the other provisions of this
Agreement), then, in that event, notwithstanding anything to the contrary in
this Agreement or
34
any other Loan Document or any agreement entered into in connection with or as
security for the Obligations, it is agreed as follows: (i) the aggregate of all
consideration which constitutes interest under law applicable to any Agent or
any Lender that is contracted for, taken, reserved, charged or received by such
Agent or such Lender under this Agreement or any other Loan Document or
agreements or otherwise in connection with the Obligations shall under no
circumstances exceed the maximum amount allowed by such applicable law, any
excess shall be canceled automatically and if theretofore paid shall be credited
by such Agent or Lender on the principal amount of the Obligations (or, to the
extent that the principal amount of the Obligations shall have been or would
thereby be paid in full, refunded by such Agent or such Lender, as applicable,
to the Company); and (ii) if the maturity of the Obligations is accelerated by
reason of any Event of Default under this Agreement or otherwise, or in the
event of any required or permitted prepayment, then such consideration that
constitutes interest under law applicable to any Agent or Lender may never
include more than the maximum amount allowed by such applicable law, and excess
interest, if any, provided for in this Agreement or otherwise shall be canceled
automatically by such Agent or such Lender, as applicable, as of the date of
such acceleration or prepayment and, if theretofore paid, shall be credited by
such Agent or such Lender, as applicable, on the principal amount of the
Obligations (or, to the extent that the principal amount of the Obligations
shall have been or would thereby be paid in full, refunded by such Agent or such
Lender to the Company). All sums paid or agreed to be paid to any Agent or
Lender for the use, forbearance or detention of sums due hereunder shall, to the
extent permitted by law applicable to such Agent or Lender, be amortized,
prorated, allocated and spread throughout the full term of the Loans until
payment in full so that the rate or amount of interest on account of any Loans
hereunder does not exceed the maximum amount allowed by such applicable law. If
at an time and from time to time (x) the amount of interest payable to the Agent
or any Lender on any date shall be computed at the Highest Lawful Rate
applicable to the Agent or such Lender pursuant to this subsection 2.2F and (y)
in respect of any subsequent interest computation period the amount of interest
otherwise payable to such Agent or Lender would be less than the amount of
interest payable to such Agent or Lender computed at the Highest Lawful Rate
applicable to such Agent or Lender, then the amount of interest payable to such
Agent or Lender in respect of such subsequent interest computation period shall
continue to be computed at the Highest Lawful Rate applicable to such Agent or
Lender until the total amount of interest payable to such Agent or Lender shall
equal the total amount of interest which would have been payable to such Agent
or Lender if the total amount of interest had been computed without giving
effect to this subsection 2.2F. For purposes of this subsection 2.2F, the term
"applicable law" shall mean that law in effect from time to time and applicable
to the loan transaction between the Loan Parties, on the one hand, and the
Agents and the Lenders, on the other, that lawfully permits the charging and
collection of the highest permissible, lawful non-usurious rate of interest on
such loan transaction and this Agreement, including laws of the State of
New
York and, to the extent controlling, laws of the United States of America. The
right to accelerate the maturity of the Obligations does not include the right
to accelerate any interest that has not accrued as of the date of acceleration.
35
2.3 FEES.
A. FACILITY FEES. The Company agrees to pay to Administrative
Agent, on the Closing Date, facility fees in the aggregate amount separately
agreed upon between the Company and Administrative Agent.
B. OTHER FEES. The Company agrees to pay to Administrative
Agent and Lenders such fees in the amounts and at the times separately agreed
upon between the Company and Administrative Agent and Lenders.
2.4 REPAYMENTS, GENERAL PROVISIONS REGARDING PAYMENTS; APPLICATION
OF PROCEEDS OF COLLATERAL AND PAYMENTS UNDER PARENT GUARANTY.
A. PAYMENTS OF TERM LOANS. The Term Loans and all other
Obligations shall be paid in full no later than December 31, 2005, and the final
installment payable by the Company in respect of the Term Loans on such date
shall be in an amount sufficient to repay all amounts owing by the Company under
this Agreement with respect to the Term Loans.
B. PREPAYMENTS.
(i) Voluntary Prepayments. The Company may, upon not less than
one Business Day's prior written or telephonic notice given to
Administrative Agent by 12:00 Noon (
New York City time) on the date
required and, if given by telephone, promptly confirmed in writing to
Administrative Agent (who will promptly notify each Lender), at any
time and from time to time prepay any Term Loans on any Business Day in
whole or in part in an aggregate minimum amount of $1,000,000 and
multiples of $500,000 in excess of that amount; provided, however, that
prior to the first anniversary of the Closing Date, any Term Loan may
be prepaid only upon the simultaneous payment of a premium equal to
2.00% of the principal amount of Term Loans so prepaid. Notice of
prepayment having been given as aforesaid, the principal amount of the
Loans specified in such notice shall become due and payable on the
prepayment date specified therein.
(ii) Mandatory Prepayments. The Loans shall be prepaid in the
amounts and under the circumstances set forth below and no prepayment
premium shall apply to any such mandatory prepayment:
(a) Prepayments and Reductions From Net Available
Cash. No later than one (1) Business Day following than the
date of receipt by any Loan Party or any of the Company's
Subsidiaries or any of their Affiliates of any Net Available
Cash, the Company shall prepay the Loans in an aggregate
amount equal to such Net Available Cash, provided, however,
subject to subsection 2.4B(ii)(h), that the Company shall not
be required to prepay the Loans in connection with the
following Asset Disposition, except to the extent otherwise
set forth below:
(1) Equipment in the ordinary course of such
Loan Party's business that is obsolete or no longer
useable by such Loan Party in its
36
business so long as the aggregate Net Available Cash
received in any Fiscal Year for all of the Loan
Parties and the Company's Subsidiaries does not
exceed $2,000,000;
(2) sales of Non-Core Assets consummated in
accordance with the terms of this Agreement so long
as (a) no Potential Event of Default or Event of
Default shall have occurred and be continuing (either
before or immediately after such Asset Disposition);
(b) the aggregate Net Available Cash received from
the Closing Date through the date of determination
from all such Asset Dispositions does not exceed
$20,000,000 in the aggregate; (c) the Company
delivers to Administrative Agent and Documentation
Agent an Officer's Certificate setting forth (x) that
portion of such Net Available Cash that the Company
intends to reinvest in Equipment or other productive
assets of the general type used in the business of
the Company within 18 months of such date of receipt
so long as the Company identifies such Equipment or
other productive assets prior to the date that is 365
days after the date of receipt and delivers to
Administrative Agent and Documentation Agent an
Officer's Certificate with respect to such Equipment
and productive assets and (y) the proposed use of
such portion of the Net Available Cash and such other
information with respect to such reinvestment as
Administrative Agent or Documentation Agent may
reasonably request and, to the extent not intended to
be so reinvested, shall be immediately used to prepay
the Loans; (d) the Company makes a prepayment of its
obligations under the Revolving Credit Agreement in
an amount equal to the Net Available Cash from such
Asset Disposition, and a reserve is created against
both the Revolving Commitment and the Borrowing Base
(as defined in the Revolving Credit Agreement) in
each case, in an amount equal to at least such Net
Available Cash after such sale, which reserves shall
be reduced on a dollar for dollar basis as such Net
Available Cash from such Asset Disposition is
reinvested as provided in clause (e) or applied to
prepay, repay, redeem or purchase the Term Loans as
provided in clause (f); (e) the Company shall
promptly and diligently apply such portion to such
reinvestment purposes; and (f) the Company shall, no
later than 18 months after receipt of such Net
Available Cash that have not theretofore been applied
to the Obligations or that have not been so
reinvested as provided above, make an additional
prepayment of the Loans in the full amount of all
such Net Available Cash not applied in accordance
with clause (e) (and the Administrative Agent is
hereby authorized to collect such prepayment).
(b) Prepayments and Reductions from Net
Insurance/Condemnation Proceeds. Subject to subsection
2.4B(ii)(h), no later than the first Business Day following
the date of receipt by Administrative Agent or by any Loan
Party or any of the Company's Subsidiaries or any of their
Affiliates of any Net
37
Insurance/Condemnation Proceeds that are required to be
applied to prepay the Loans pursuant to the provisions of
subsection 6.13(C), the Company shall prepay the Loans in an
aggregate amount equal to the amount of such Net
Insurance/Condemnation Proceeds.
(c) Prepayments and Reductions Due to Issuance of
Equity Securities. Subject to subsection 2.4B(ii)(h), on the
date of receipt of the Net Cash Proceeds from the issuance of
any Capital Stock of any Loan Party or any of the Company's
Subsidiaries to any Person other than any other Loan Party
after the Closing Date, the Company shall prepay the Loans in
an aggregate amount equal to 50% of such Net Cash Proceeds
provided, however, (i) that the Loan Parties shall not be
required to prepay the Loans in connection with the issuance
of any Capital Stock of Holding Co. to the extent that the Net
Cash Proceeds therefrom are promptly applied to pay the
regularly scheduled payments of cash interest in respect of
the Senior Discount Notes in accordance with the terms thereof
and to the extent required by the Senior Discount Note
Indenture, and (ii) the Company shall not be required to
prepay the Loans in an amount equal to the Net Cash Proceeds
received by Holding Co. in connection with the sale of Capital
Stock in Holding Co. (to the extent related to or attributable
to Newco) or in Newco, up to an aggregate maximum of
$20,000,000 so long as such Net Cash Proceeds are invested
directly or indirectly in the business of Newco.
(d) Prepayments and Reductions Due to Issuance of
Indebtedness. On the date of receipt of the Net Cash Proceeds
from the issuance of any Indebtedness of any Loan Party or any
of the Company's Subsidiaries after the Closing Date (other
than Indebtedness permitted by subsections 6.3B(i) through
(ix), inclusive), the Company shall prepay the Loans in an
aggregate amount equal to such Net Cash Proceeds.
(e) Prepayments from Excess Cash Flow. Subject to
subsection 2.4B(ii)(h), if there is Consolidated Excess Cash
Flow for any Fiscal Year (commencing with Fiscal Year 2003),
the Company shall, no later than 90 days after the end of such
Fiscal Year (or the first date thereafter on which there shall
not exist an "Event of Default" (as such term is defined in
the Revolving Credit Agreement) under the Revolving Credit
Agreement) prepay the Loans in an aggregate amount equal to
50% of such Consolidated Excess Cash Flow.
(f) Prepayment from Extraordinary Receipts. Subject
to subsection 2.4B(ii)(h), upon the receipt by any Loan Party
or any of the Company's Subsidiaries of any Extraordinary
Receipts in excess of $2,000,000 in the aggregate (for all
Extraordinary Receipts since the Closing Date), the Company
shall prepay the outstanding principal of the Loans in an
amount equal to 50% of such Extraordinary Receipts, net of any
reasonable expenses incurred in collecting such Extraordinary
Receipts, provided, however the Company shall not be required
to prepay the Loans with such Extraordinary Receipts so long
as (a) such net Extraordinary Receipts shall be deposited in
the Collateral Account immediately
38
upon receipt, (b) no Potential Event of Default or Event of
Default shall have occurred and be continuing (either before
or immediately after such Asset Disposition), (c) the Company
delivers to Administrative Agent and Documentation Agent an
Officer's Certificate setting forth (x) that portion of such
net Extraordinary Receipts that the Company intends to
reinvest in Equipment or other productive assets of the
general type used in the business of the Company (or, in the
case of Extraordinary Receipts described in clause (viii) of
the definition thereof, applied as required by the applicable
Government Authority granting such award or other
compensation) within 18 months after such date of receipt, (y)
the proposed use of such portion of the net Extraordinary
Receipts and such other information with respect to such
reinvestment as Administrative Agent and Documentation Agent
may reasonably request, and (z) the portion of such net
Extraordinary Receipts to be immediately used to prepay the
Loans (which shall include all of the net Extraordinary
Receipts not intended to be reinvested in accordance with
subclauses (x) and (y) above), (d) the Company identifies such
Equipment or productive assets (or other permitted purposes)
prior to the date that is 365 days after the date of receipt
in an Officer's Certificate delivered to Administrative Agent
and Documentation Agent (whereupon Administrative Agent shall
from time to time disburse to the Company from the Collateral
Account, to the extent of any such Extraordinary Receipts
remaining therein, such Extraordinary Receipts after the
receipt by Administrative Agent of invoices or other
documentation reasonably satisfactory to Administrative Agent
and Documentation Agent relating to the amount of reinvestment
costs so incurred), (e) the Company shall promptly and
diligently apply such portion to such reinvestment purposes,
and (f) the Company shall, no later than 18 months after
receipt of such net Extraordinary Receipts that have not
theretofore been applied to the Obligations or that have not
been so reinvested as provided above, make an additional
prepayment of the Loans in an amount equal so such net
Extraordinary Receipts not so applied in accordance with
clause (e) (and the Administrative Agent is hereby authorized
to collect such prepayment).
(g) Calculations of Net Proceeds Amounts; Additional
Prepayments and Reductions Based on Subsequent Calculations.
The Company shall provide Administrative Agent with not less
than three Business Days' prior written notice of any
prepayment of the Loans pursuant to subsections
2.4B(ii)(a)-(f) which notice, if given by telephone, shall be
promptly confirmed in writing to Administrative Agent.
Administrative Agent shall promptly notify each Lender of such
prepayment and of the amount of the prepayment proposed to be
applied to such Lender's Loans. Concurrently with any
prepayment of the Loans pursuant to subsections
2.4B(ii)(a)-(f), the Company shall deliver to Administrative
Agent an Officer's Certificate demonstrating the calculation
of the amount of the applicable Net Available Cash, Net
Insurance/Condemnation Proceeds, Net Cash Proceeds,
Consolidated Excess Cash Flow or Extraordinary Receipts, as
the case may be, that gave rise to such prepayment and/or
reduction. In the event that Company shall subsequently
determine that the actual amount
39
was greater than the amount set forth in such Officer's
Certificate, the Company shall promptly make an additional
prepayment of the Loans in an amount equal to the amount of
such excess, and Company shall concurrently therewith deliver
to Administrative Agent an Officer's Certificate demonstrating
the derivation of the additional amount resulting in such
excess (it being understood that any such additional
prepayment or additional certificate shall not constitute a
waiver of any Event of Default).
(h) ESOP Offset. Notwithstanding anything to the
contrary contained in the foregoing clauses (a) through (f) or
subsection 6.13C, if at any time an ESOP Offset exists at a
time when there is Net Available Cash, Net
Insurance/Condemnation Proceeds, Net Cash Proceeds,
Consolidated Excess Cash Flow or Extraordinary Receipts, the
Company shall not be permitted to retain or reinvest any such
Net Available Cash, Net Insurance/Condemnation Proceeds, Net
Cash Proceeds, Consolidated Excess Cash Flow or Extraordinary
Receipts as provided in such subsections in an amount equal to
the ESOP Offset, and the Company shall prepay the Loans in an
equal to the ESOP Offset.
C. GENERAL PROVISIONS REGARDING PAYMENTS.
(i) Manner and Time of Payment. All payments by the Company of
principal, interest, fees and other Obligations shall be made in
Dollars in same day funds, without defense, setoff or counterclaim,
free of any restriction or condition, and delivered to Administrative
Agent not later than 12:00 Noon (
New York City time) on the date due at
the Funding and Payment Account for the account of Lenders; funds
received by Administrative Agent after that time on such due date shall
be deemed to have been paid by the Company on the next succeeding
Business Day. The Company hereby authorizes Administrative Agent to
charge its accounts with Administrative Agent in order to cause timely
payment to be made to Administrative Agent of all principal, interest,
fees and expenses due hereunder (subject to sufficient funds being
available in its accounts for that purpose).
(ii) Application of Payments to Principal and Interest. Except
as provided in subsection 2.2C, all payments in respect of the
principal amount of any Loan shall include payment of any prepayment
premiums and accrued interest on the principal amount being repaid or
prepaid, and all such payments shall be applied to the payment of
prepayment fees and interest before application to principal.
(iii) Apportionment of Payments. Aggregate principal and
interest payments in respect of Term Loans shall be apportioned among
all outstanding Loans to which such payments relate, in each case
proportionately to Lenders' respective Pro Rata Shares. Administrative
Agent shall promptly distribute to each Lender, at the account
specified in the payment instructions set forth below its name on the
appropriate signature page hereof or at such other account in
subsequent payment instructions delivered to Administrative Agent by
such Lender, its Pro Rata Share of all such
40
payments received by Administrative Agent and the commitment fees of
such Lender, if any, when received by Administrative Agent pursuant to
subsection 2.3.
(iv) Payments on Business Days. Whenever any payment to be
made hereunder shall be stated to be due on a day that is not a
Business Day, such payment shall be made on the immediately preceding
Business Day.
(v) Notation of Payment. Each Lender agrees that before
disposing of any Note held by it, or any part thereof (other than by
granting participations therein), that Lender will make a notation
thereon of all Loans evidenced by that Note and all principal payments
previously made thereon and of the date to which interest thereon has
been paid; provided that the failure to make (or any error in the
making of) a notation of any Loan made under such Note shall not limit
or otherwise affect the obligations of the Company hereunder or under
such Note with respect to any Loan or any payments of principal or
interest on such Note.
D. APPLICATION OF PROCEEDS OF COLLATERAL AND PAYMENTS AFTER
EVENT OF DEFAULT.
Upon the occurrence and during the continuation of an Event of
Default, if requested by Requisite Lenders (a) all payments received on account
of the Obligations, whether from the Company, from any Guarantor or otherwise,
shall be applied by Administrative Agent against the Obligations and (b) all
proceeds received by Administrative Agent in respect of any sale of, collection
from, or other realization upon all or any part of the Collateral under any
Collateral Document may, in the discretion of Administrative Agent and the
Documentation Agent, be held by Administrative Agent as Collateral for, and/or
(then or at any time thereafter) applied in full or in part by Administrative
Agent against, the applicable Secured Obligations (as defined in such Collateral
Document), in each case in the following order of priority:
(i) to the payment of all costs and expenses of such sale,
collection or other realization, all other expenses, liabilities and
advances made or incurred by Administrative Agent and/or Documentation
Agent in connection therewith, and all amounts for which Administrative
Agent and/or Documentation Agent is entitled to compensation,
reimbursement and indemnification under any Loan Document and all
advances made by Administrative Agent and/or Documentation Agent
thereunder for the account of the applicable Loan Party, and to the
payment of all costs and expenses paid or incurred by Administrative
Agent and/or Documentation Agent in connection with the Loan Documents,
all in accordance with subsections 9.4, 10.2 and 10.3 and the other
terms of this Agreement and the Loan Documents;
(ii) thereafter, to the payment of all other Obligations for
the ratable benefit of the holders thereof (subject to the provisions
of subsection 2.4C(ii) hereof); and
(iii) thereafter, to the payment to or upon the order of such
Loan Party or to whosoever may be lawfully entitled to receive the same
or as a court of competent jurisdiction may direct.
41
2.5 USE OF PROCEEDS.
A. TERM LOANS. The proceeds of the Term Loans shall be applied
by the Company to consummate the Refinancing and the Note Repurchase, pay
Transaction Costs and thereafter, to repurchase additional Senior Subordinated
Notes to the extent permitted by this Agreement, provide financing for working
capital and for other general corporate purposes of the Company and its
Subsidiaries.
B. MARGIN REGULATIONS. No portion of the proceeds of any
borrowing under this Agreement shall be used by the Company or any of its
Subsidiaries in any manner that might cause the borrowing or the application of
such proceeds to violate Regulation U, Regulation T or Regulation X of the Board
of Governors of the Federal Reserve System or any other regulation of such Board
or to violate the Exchange Act, in each case as in effect on the date or dates
of such borrowing and such use of proceeds.
2.6 INTENTIONALLY DELETED.
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
A. COMPENSATION FOR INCREASED COSTS. Subject to the provisions
of subsection 2.7B (which shall be controlling with respect to the matters
covered thereby), if any Lender shall determine (which determination shall,
absent manifest error, be final and conclusive and binding upon all parties
hereto) that any law, treaty or governmental rule, regulation or order, or any
change therein or in the interpretation, administration or application thereof
(including the introduction of any new law, treaty or governmental rule,
regulation or order), or any determination of a court or other Government
Authority, in each case that becomes effective after the date hereof, or
compliance by such Lender with any guideline, request or directive issued or
made after the date hereof by any central bank or other Government Authority
(whether or not having the force of law):
(i) subjects such Lender to any additional Tax with respect to
this Agreement or any of its obligations hereunder (including with
respect to maintaining any Commitment hereunder) or any payments to
such Lender of principal, interest, fees or any other amount payable
hereunder;
(ii) imposes, modifies or holds applicable any reserve,
special deposit, compulsory loan, insurance charge or similar
requirement against assets held by, or deposits or other liabilities in
or for the account of, or advances or loans by, or other credit
extended by, or any other acquisition of funds by, any office of such
Lender; or
(iii) imposes any other condition (other than with respect to
Taxes) on or affecting such Lender or its obligations hereunder;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining its Loans or Commitments or agreeing to
purchase, purchasing or maintaining any participation therein or to reduce any
amount received or receivable by such
42
Lender with respect thereto; then, in any such case, the Company shall promptly
pay to such Lender, upon receipt of the statement referred to in subsection
2.8A, such additional amount or amounts (in the form of an increased rate of, or
a different method of calculating, interest or otherwise as such Lender in its
sole discretion shall determine) as may be necessary to compensate such Lender
for any such increased cost or reduction in amounts received or receivable
hereunder.
B. TAXES.
(i) Payments to Be Free and Clear. All sums payable by the
Company under this Agreement and the other Loan Documents shall be paid
free and clear of, and without any deduction or withholding on account
of, any Tax imposed, levied, collected, withheld or assessed by or
within the United States of America or any political subdivision in or
of the United States of America or any other jurisdiction from or to
which a payment is made by or on behalf of the Company or by any
federation or organization of which the United States of America or any
such jurisdiction is a member at the time of payment.
(ii) Grossing-up of Payments. If the Company or any other
Person is required by law to make any deduction or withholding on
account of any such Tax from any sum paid or payable by the Company to
Administrative Agent or any Lender under any of the Loan Documents:
(a) Company shall notify Administrative Agent of any
such requirement or any change in any such requirement as soon
as Company becomes aware of it;
(b) Company shall pay any such Tax when such Tax is
due, such payment to be made (if the liability to pay is
imposed on Company) for its own account or (if that liability
is imposed on Administrative Agent or such Lender, as the case
may be) on behalf of and in the name of Administrative Agent
or such Lender;
(c) the sum payable by the Company in respect of
which the relevant deduction, withholding or payment is
required shall be increased to the extent necessary to ensure
that, after the making of that deduction, withholding or
payment, Administrative Agent or such Lender, as the case may
be, receives on the due date a net sum equal to what it would
have received had no such deduction, withholding or payment
been required or made and shall be increased to the extent
necessary to take into account any taxes (including for these
purposes any income, recordation, mortgage, stamp and
documentary taxes) Administrative Agent or such Lender, as the
case may be, may incur as a result of such payment; and
(d) within 30 days after paying any sum from which it
is required by law to make any deduction or withholding, and
within 30 days after the due date
43
of payment of any Tax which it is required by clause (b) above
to pay, the Company shall deliver to Administrative Agent
evidence satisfactory to the other affected parties of such
deduction, withholding or payment and of the remittance
thereof to the relevant taxing or other authority;
provided that no such additional amount shall be required to be paid to any
Lender under clause (c) above except to the extent that any change after the
date on which such Lender became a Lender in any such requirement for a
deduction, withholding or payment as is mentioned therein shall result in an
increase in the rate of such deduction, withholding or payment from that in
effect on the date on which such Lender became a Lender, in respect of payments
to such Lender.
(iii) Evidence of Exemption from U.S. Withholding Tax.
(a) Each Lender that is organized under the laws of
any jurisdiction other than the United States or any state or
other political subdivision thereof (for purposes of this
subsection 2.7(B)(iii), a "NON-US LENDER") shall deliver to
Administrative Agent and to the Company, on or prior to the
Closing Date (in the case of each Lender listed on the
signature pages hereof) or on or prior to the date of the
Assignment Agreement pursuant to which it becomes a Lender (in
the case of each other Lender), and at such other times as may
be necessary in the determination of the Company or
Administrative Agent (each in the reasonable exercise of its
discretion), two original copies of Internal Revenue Service
Form W-8BEN or W-8ECI (or any successor forms) properly
completed and duly executed by such Lender, or, in the case of
a Non-US Lender claiming exemption from United States federal
withholding tax under Section 871(h) or 881(c) of the Internal
Revenue Code with respect to payments of "portfolio interest",
a form W-8BEN, and, in the case of a Lender that has certified
in writing to Administrative Agent that it is not a "bank" (as
defined in Section 881(c)(3)(A) of the Internal Revenue Code),
a certificate of such Lender certifying that such Lender is
not (i) a "bank" for purposes of Section 881(c) of the
Internal Revenue Code, (ii) a ten-percent shareholder (within
the meaning of Section 871(h)(3)(B) of the Internal Revenue
Code) of the Company or Holding Co. or (iii) a controlled
foreign corporation related to the Company (within the meaning
of Section 864(d)(4) of the Internal Revenue Code) in each
case together with any other certificate or statement of
exemption required under the Internal Revenue Code or the
regulations issued thereunder to establish that such Lender is
not subject to United States withholding tax with respect to
any payments to such Lender of interest payable under any of
the Loan Documents.
(b) Each Non-US Lender, to the extent it does not act
or ceases to act for its own account with respect to any
portion of any sums paid or payable to such Lender under any
of the Loan Documents (for example, in the case of a typical
participation by such Lender), shall deliver to Administrative
Agent and to the Company, on or prior to the Closing Date (in
the case of each Lender listed on the signature pages hereof),
on or prior to the date of the Assignment Agreement
44
pursuant to which it becomes a Lender (in the case of each
other Lender), or on such later date when such Lender ceases
to act for its own account with respect to any portion of any
such sums paid or payable, and at such other times as may be
necessary in the determination of the Company or
Administrative Agent (each in the reasonable exercise of its
discretion), (1) two original copies of the forms or
statements required to be provided by such Lender under
subsection 2.7B(iii)(a), properly completed and duly executed
by such Lender, to establish the portion of any such sums paid
or payable with respect to which such Lender acts for its own
account that is not subject to United States withholding tax,
and (2) two original copies of Internal Revenue Service Form
W-8IMY (or any successor forms) properly completed and duly
executed by such Lender, together with any information, if
any, such Lender chooses to transmit with such form, and any
other certificate or statement of exemption required under the
Internal Revenue Code or the regulations issued thereunder, to
establish that such Lender is not acting for its own account
with respect to a portion of any such sums payable to such
Lender.
(c) Each Non-US Lender hereby agrees, from time to
time after the initial delivery by such Lender of such forms,
whenever a lapse in time or change in circumstances renders
such forms, certificates or other evidence so delivered
obsolete or inaccurate in any material respect, that such
Lender shall promptly (1) deliver to Administrative Agent and
to the Company two original copies of renewals, amendments or
additional or successor forms, properly completed and duly
executed by such Lender, together with any other certificate
or statement of exemption required in order to confirm or
establish that such Lender is not subject to United States
withholding tax with respect to payments to such Lender under
the Loan Documents and, if applicable, that such Lender does
not act for its own account with respect to any portion of
such payment, or (2) notify Administrative Agent and Company
of its inability to deliver any such forms, certificates or
other evidence.
(d) Company shall not be required to pay any
additional amount to any Non-US Lender under clause (c) of
subsection 2.7B(ii), (1) with respect to any Tax required to
be deducted or withheld on the basis of the information,
certificates or statements of exemption such Lender chooses to
transmit with an Internal Revenue Service Form W-8IMY pursuant
to subsection 2.7B(iii)(b)(2) or (2) if such Lender shall have
failed to satisfy the requirements of clause (a), (b) or
(c)(1) of this subsection 2.7B(iii); provided that if such
Lender shall have satisfied the requirements of subsection
2.7B(iii)(a) on the date such Lender became a Lender, nothing
in this subsection 2.7B(iii)(d) shall relieve Company of its
obligation to pay any amounts pursuant to subsection
2.7B(ii)(c) if, as a result of any change in any applicable
law, treaty or governmental rule, regulation or order, or any
change in the interpretation, administration or application
thereof, such Lender is no longer properly entitled to deliver
forms, certificates or other
45
evidence at a subsequent date establishing the fact that such
Lender is not subject to withholding as described in
subsection 2.7B(iii)(a).
C. CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall have
determined that the adoption, effectiveness, phase-in or applicability after the
date hereof of any law, rule or regulation (or any provision thereof) regarding
capital adequacy, or any change therein or in the interpretation or
administration thereof by any Government Authority charged with the
interpretation or administration thereof, or compliance by any Lender with any
guideline, request or directive regarding capital adequacy (whether or not
having the force of law) of any such Government Authority, has or would have the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of, or with reference to,
such Lender's Loans or Commitments or participations therein or other
obligations hereunder with respect to the Loans to a level below that which such
Lender or such controlling corporation could have achieved but for such
adoption, effectiveness, phase-in, applicability, change or compliance (taking
into consideration the policies of such Lender or such controlling corporation
with regard to capital adequacy), then from time to time, within five Business
Days after receipt by the Company from such Lender of the statement referred to
in subsection 2.8A, the Company shall pay to such Lender such additional amount
or amounts as will compensate such Lender or such controlling corporation on an
after-tax basis for such reduction, increased to the extent necessary to take
into account any taxes (including for these purposes any income, recordation,
mortgage, stamp or documentary taxes) such Lender may incur as a result of such
additional amounts.
2.8 STATEMENT OF LENDERS; OBLIGATION OF LENDERS TO MITIGATE.
A. STATEMENTS. Each Lender claiming compensation or
reimbursement pursuant to subsections 2.7 or 2.8B shall deliver to the Company
(with a copy to Administrative Agent) a written statement, setting forth in
reasonable detail the basis of the calculation of such compensation or
reimbursement, which statement shall be conclusive and binding upon all parties
hereto absent manifest error.
B. MITIGATION. Each Lender agrees that, as promptly as
practicable after the officer of such Lender responsible for administering the
Loans of such Lender becomes aware of the occurrence of an event or the
existence of a condition that would entitle such Lender to receive payments
under subsection 2.7, use reasonable efforts to make, issue, fund or maintain
the Commitments of such Lender, if (i) as a result thereof the additional
amounts which would otherwise be required to be paid to such Lender pursuant to
subsection 2.7 would be materially reduced and (ii) as determined by such Lender
in its sole discretion, such action would not otherwise be disadvantageous to
such Lender; provided that such Lender will not be obligated to utilize an
alternative lending office pursuant to this subsection 2.8B unless Company
agrees to pay all incremental expenses incurred by such Lender as a result of
utilizing such other lending office as described above.
46
2.9 REPLACEMENT OF A LENDER.
If the Company receives a statement of amounts due pursuant to
subsection 2.8A from a Lender, a Lender (a "NON-CONSENTING LENDER") refuses to
consent to an amendment, modification or waiver of this Agreement that, pursuant
to subsection 10.6, requires consent of 100% of the Lenders or 100% of the
Lenders with Obligations directly affected (any such Lender, a "SUBJECT
LENDER"), so long as (i) no Potential Event of Default or Event of Default shall
have occurred and be continuing and Company has obtained a commitment from
another Lender or an Eligible Assignee to purchase at par the Subject Lender's
Loans and assume the Subject Lender's Commitments and all other obligations of
the Subject Lender hereunder, and (ii), if applicable, the Subject Lender is
unwilling to withdraw the notice delivered to the Company pursuant to subsection
2.8 and/or is unwilling to remedy its default upon 10 days prior written notice
to the Subject Lender and Administrative Agent, the Company may require the
Subject Lender to assign all of its Loans and Commitments to such other Lender
or Eligible Assignees pursuant to the provisions of subsection 10.1B (a
"REPLACEMENT LENDER"); provided that, prior to or concurrently with such
replacement, (1) the Subject Lender shall have received payment in full of all
principal, interest, fees and other amounts (including all amounts under
subsections 2.7 and/or 2.8B (if applicable) and any prepayment premium that
would otherwise be payable if such Loan were to be prepaid at such time) through
such date of replacement and a release from its obligations under the Loan
Documents, (2) the processing fee required to be paid by subsection 10.1B(i)
shall have been paid to Administrative Agent, and (3) all of the requirements
for such assignment contained in subsection 10.1B, including, without
limitation, the consent of Administrative Agent (if required) and the receipt by
Administrative Agent of an executed Assignment Agreement and other supporting
documents, have been fulfilled, and (4) if such Subject Lender is a
Non-Consenting Lender, each Replacement Lender shall consent, at the time of
such assignment, to each matter in respect of which such Subject Lender was a
Non-Consenting Lender and Company also requires each other Subject Lender that
is a Non-Consenting Lender to assign its Loans and Commitments to the
Replacement Lender.
SECTION 3. INTENTIONALLY DELETED
SECTION 4. CONDITIONS TO LOANS
The obligations of Lenders to make Loans hereunder are subject
to the satisfaction of the following conditions:
4.1 CONDITIONS TO TERM LOANS .
A. LOAN PARTY DOCUMENTS. On or before the Closing Date, the
Company shall, and shall cause each other Loan Party to, deliver to Lenders (or
to Administrative Agent with sufficient originally executed copies, where
appropriate, for each Lender) the following with respect to the Company or such
Loan Party, as the case may be, each, unless otherwise noted, dated the Closing
Date:
(i) Copies of the Organizational Documents of such Person,
certified by the Secretary of State of its jurisdiction of organization
and an officer of the applicable Loan
47
Party, together with a good standing certificate from the Secretary of
State of its jurisdiction of organization and each other state in which
such Person is qualified to do business and, to the extent generally
available, a certificate or other evidence of good standing as to
payment of any applicable franchise or similar taxes from the
appropriate taxing authority of each of such jurisdictions, each dated
a recent date prior to the Closing Date;
(ii) Resolutions of the Governing Body of such Person
approving and authorizing the execution, delivery and performance of
the Loan Documents to which it is a party, certified as of the Closing
Date by the secretary or similar officer of such Person as being in
full force and effect without modification or amendment;
(iii) Signature and incumbency certificates of the officers of
such Person executing the Loan Documents to which it is a party;
(iv) Executed originals of the Loan Documents to which such
Person is a party; and
(v) Such other documents as Administrative Agent may
reasonably request.
B. FEES. The Company shall have paid to Administrative Agent,
for distribution (as appropriate) to Administrative Agent and Lenders, the fees,
costs and expenses payable on the Closing Date.
C. CORPORATE AND CAPITAL STRUCTURE; OWNERSHIP.
(i) Corporate Structure. The corporate organizational
structure of the Holding Co. and its Subsidiaries shall be as set forth
on Schedule 4.1C annexed hereto.
(ii) Capital Structure and Ownership. The capital structure
and ownership of Holding Co. and its Subsidiaries shall be as set forth
on Schedule 4.1C annexed hereto.
D. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF AGREEMENTS. The
Company shall have delivered to Administrative Agent an Officer's Certificate,
in form and substance reasonably satisfactory to Administrative Agent, to the
effect that (i) the representations and warranties in Section 5 and in the other
Loan Documents are true, correct and complete in all material respects on and as
of the Closing Date to the same extent as though made on and as of that date
(or, to the extent such representations and warranties specifically relate to an
earlier date, that such representations and warranties were true, correct and
complete in all material respects on and as of such earlier date) and that
Company shall have performed all agreements and satisfied all conditions which
this Agreement provides shall be performed or satisfied by it on or before the
Closing Date except as otherwise disclosed to and agreed to in writing by
Administrative Agent; provided that, if a representation and warranty, covenant
or condition is qualified as to materiality, with respect to such representation
and warranty, covenant or condition the applicable materiality qualifier set
forth above shall be disregarded for purposes of this condition; (ii) no event
shall have occurred and be continuing or would result from the
48
consummation of the borrowing contemplated by the Notice of Borrowing that would
constitute an Event of Default or a Potential Event of Default; (iii) each Loan
Party shall have performed all agreements and satisfied all conditions which
this Agreement provides shall be performed or satisfied by it on or before the
Closing Date; (iv) no order, judgment or decree of any arbitrator or Government
Authority shall purport to enjoin or restrain any Lender from making the Loans
to be made by it on the Closing Date and the making of such Loan shall not
contravene any rule or regulation applicable to Lender; and (v) all of the
information which is required to be scheduled to this Agreement is set forth on
the Schedules attached hereto, is correct and accurate and does not omit to
state any information material thereto.
E. FINANCIAL STATEMENTS; PRO FORMA FINANCIAL STATEMENTS. On or
before the Closing Date, Lenders shall have received from the Company (i)
audited and unaudited financial statements of the Company and its Subsidiaries
and Holding Co. and its Subsidiaries and (ii) pro forma balance sheets as of
October 31, 2002 of Company and its Subsidiaries and Holding Co. and its
Subsidiaries, giving effect to the Transactions, which pro forma balance sheets
shall be in form and substance satisfactory to Administrative Agent and
Documentation Agent.
F. OPINIONS OF COUNSEL TO LOAN PARTIES. Lenders shall have
received originally executed copies of one or more favorable written opinions of
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for Loan Parties, in form and substance
reasonably satisfactory to Administrative Agent, Documentation Agent and their
counsel, dated as of the Closing Date and substantially in the form of Exhibit
IV annexed hereto (this Credit Agreement constituting a written request by the
Company to such counsel to deliver such opinions to Lenders).
G. OPINION OF ADMINISTRATIVE AGENT'S COUNSEL. Lenders shall
have received originally executed copies of a favorable written opinion of
O'Melveny & ▇▇▇▇▇ LLP, counsel to Administrative Agent, dated as of the Closing
Date, substantially in the form of Exhibit V annexed hereto.
H. SOLVENCY ASSURANCES. On the Closing Date, Administrative
Agent and Lenders shall have received an Officer's Certificate of the Company
dated the Closing Date, substantially in the form of Exhibit VII annexed hereto
and with appropriate attachments, in each case demonstrating that, after giving
effect to the consummation of the transactions contemplated by the Loan
Documents, that the Company, individually, and the Company and its Subsidiaries
on a consolidated basis will be Solvent.
I. EVIDENCE OF INSURANCE. Administrative Agent and
Documentation Agent shall have received a certificate from the Company's
insurance broker or other evidence satisfactory to them that all insurance
required to be maintained as described in subsection 6.13B is in full force and
effect and that Administrative Agent on behalf of Lenders has been named as
additional insured and/or loss payee thereunder to the extent required by
Administrative Agent.
J. NECESSARY GOVERNMENTAL AUTHORIZATIONS AND CONSENTS. The
Company shall have obtained all Governmental Authorizations and all consents of
other Persons, in each case that are necessary or advisable in connection with
the transactions contemplated by the
49
Loan Documents and the continued operation of the business conducted by the
Company and its Subsidiaries in substantially the same manner as conducted prior
to the Closing Date. Each such Governmental Authorization and consent shall be
in full force and effect, except in a case where the failure to obtain or
maintain a Governmental Authorization or consent, either individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
K. ENVIRONMENTAL REPORTS. Administrative Agent shall have
received reports and other information, in form, scope and substance reasonably
satisfactory to Administrative Agent and Documentation Agent, regarding
environmental matters relating to the Company and its Subsidiaries and the
Facilities, which reports shall include (i) a Phase I environmental site
assessment for each of the Facilities listed in Schedule 4.1K annexed hereto
which (a) conforms to the ASTM Standard Practice for Environmental Site
Assessments: Phase I Environmental Site Assessment Process, E 1527, and (b) was
conducted no more than twelve months prior to the Closing Date by one or more
environmental consulting firms reasonably satisfactory to Administrative Agent
and Documentation Agent.
L. SECURITY INTERESTS IN PERSONAL AND MIXED PROPERTY. To the
extent not otherwise satisfied pursuant to subsection 4.1M, Administrative Agent
and Documentation Agent shall have received evidence satisfactory to it that
each Loan Party shall have taken or caused to be taken all such actions,
executed and delivered or caused to be executed and delivered all such
agreements, documents and instruments, and made or caused to be made all such
filings and recordings (other than the filing or recording of items described in
clauses (ii), (iii) and (iv) below) that may be necessary or, in the opinion of
Administrative Agent or Documentation Agent, desirable in order to create in
favor of Administrative Agent, for the benefit of Lenders, a valid and (upon
such filing and recording) perfected security interest in substantially of all
of the their real, personal or mixed property (other than in the case of Holding
Co., the Capital Stock of any Unrestricted Subsidiary), consisting of a Second
Priority security interests in the Revolver Primary Collateral and First
Priority security interest in all of the Term Primary Collateral and Shared
Collateral. Such actions shall include the following:
(i) Stock Certificates and Instruments. Delivery to
Administrative Agent of (a) certificates (which certificates shall be
accompanied by irrevocable undated stock powers, duly endorsed in blank
and otherwise satisfactory in form and substance to Administrative
Agent) representing all Capital Stock pledged pursuant to the Security
Agreement and (b) all promissory notes or other instruments (duly
endorsed, where appropriate, in a manner satisfactory to Administrative
Agent) evidencing any Collateral;
(ii) Lien Searches and UCC Termination Statements. Delivery to
Administrative Agent of (a) the results of a recent search, by a Person
satisfactory to Administrative Agent, of all effective UCC financing
statements and fixture filings and all judgment and tax lien filings
which may have been made with respect to any personal or mixed property
of any Loan Party, together with copies of all such filings disclosed
by such search, and (b) UCC termination statements duly authorized to
be filed in all applicable jurisdictions as may be necessary to
terminate any effective UCC financing statements or fixture filings
disclosed in such search (other than any such financing
50
statements or fixture filings in respect of Liens permitted to remain
outstanding pursuant to the terms of this Agreement).
(iii) UCC Financing Statements and Fixture Filings. Delivery
to Administrative Agent of UCC financing statements and, where
appropriate, fixture filings with respect to all personal and mixed
property Collateral of such Loan Party, for filing in all jurisdictions
as may be necessary or, in the opinion of Administrative Agent or
Documentation Agent, desirable to perfect the security interests
created in such Collateral pursuant to the Collateral Documents;
(iv) PTO Cover Sheets, Etc. Delivery to Administrative Agent
of all cover sheets or other documents or instruments required to be
filed with the PTO in order to create or perfect Liens in respect of
any IP Collateral;
(v) Control Agreements. Delivery to Administrative Agent and
Documentation Agent of such control agreements with financial
institutions and other Persons in order to perfect Liens in respect of
Deposit Accounts, securities accounts and other Collateral pursuant to
the Collateral Documents as the Administrative Agent or Documentation
Agent may require.
M. CLOSING DATE MORTGAGES; CLOSING DATE MORTGAGE POLICIES;
ETC. Administrative Agent shall have received from the Company:
(i) Closing Date Mortgages. Fully executed and notarized
Mortgages (each a "CLOSING DATE MORTGAGE" and, collectively, the
"CLOSING DATE MORTGAGES"), in proper form for recording in all
appropriate places in all applicable jurisdictions, encumbering each
Real Property Asset listed in Schedule 4.1M annexed hereto (each a
"CLOSING DATE MORTGAGED PROPERTY" and, collectively, the "CLOSING DATE
MORTGAGED PROPERTIES");
(ii) Title Insurance. (a) ALTA mortgagee title insurance
policies (or with respect to the respect to any real property located
in the State of Texas, Form T-2) or unconditional commitments therefor
(the "CLOSING DATE MORTGAGE POLICIES") issued by the Title Company with
respect to the Closing Date Mortgaged Properties listed in Part A of
Schedule 4.1M annexed hereto, in an amount equal to 115% of the
aggregate amount of the Term Loan Commitments, insuring fee simple
title in each such Closing Date Mortgaged Property vested in such Loan
Party and assuring Administrative Agent that the applicable Closing
Date Mortgages create valid and enforceable First Priority mortgage
Liens on the respective Closing Date Mortgaged Properties encumbered
thereby, subject only to a standard survey exception, which Closing
Date Mortgage Policies (1) shall include an endorsement for mechanics'
liens and for any other matters reasonably requested by Administrative
Agent and Documentation Agent, to the extent such endorsements are
available in the states where the Closing Date Mortgaged Properties are
located and (2) shall provide for affirmative insurance and such
reinsurance as Administrative Agent and Documentation Agent may
reasonably request, all of the foregoing in form and substance
reasonably satisfactory to Administrative Agent and Documentation
Agent; and (b) evidence satisfactory to Administrative Agent
51
and Documentation Agent that such Loan Party has (i) delivered to the
Title Company all certificates and affidavits required by the Title
Company in connection with the issuance of the Closing Date Mortgage
Policies and (ii) paid to the Title Company or to the appropriate
governmental authorities all expenses and premiums of the Title Company
in connection with the issuance of the Closing Date Mortgage Policies
and all recording and stamp taxes (including mortgage recording and
intangible taxes) payable in connection with recording the Closing Date
Mortgages in the appropriate real estate records;
(iii) Title Reports. With respect to each Closing Date
Mortgaged Property listed in Part A of Schedule 4.1M annexed hereto, a
title report issued by the Title Company with respect thereto, dated
not more than 30 days prior to the Closing Date and satisfactory in
form and substance to Administrative Agent;
(iv) Copies of Documents Relating to Title Exceptions. Copies
of all recorded documents listed as exceptions to title or otherwise
referred to in the Closing Date Mortgage Policies or in the title
reports delivered pursuant to subsection 4.1M(iii);
(v) Matters Relating to Flood Hazard Properties. (a) Evidence,
which may be in the form of a letter from an insurance broker or a
municipal engineer, as to whether (1) any Closing Date Mortgaged
Property is a Flood Hazard Property and (2) the community in which any
such Flood Hazard Property is located is participating in the National
Flood Insurance Program, (b) if there are any such Flood Hazard
Properties, such Loan Party's written acknowledgement of receipt of
written notification from Administrative Agent (1) as to the existence
of each such Flood Hazard Property and (2) as to whether the community
in which each such Flood Hazard Property is located is participating in
the National Flood Insurance Program, and (c) if any such Flood Hazard
Property is located in a community that participates in the National
Flood Insurance Program, evidence that Company or such Loan Party has
obtained flood insurance in respect of such Flood Hazard Property to
the extent required under the applicable regulations of the Board of
Governors of the Federal Reserve System;
(vi) Surveys. Either (i) an as-built survey for each Closing
Date Mortgaged Property prepared by a surveyor licensed or registered
in the state where such Closing Date Mortgaged Property is located,
which surveys must be sufficient to delete any standard printed survey
exception contained in the applicable Closing Date Mortgage Policy and
otherwise be in form and substance satisfactory to Administrative Agent
and Documentation Agent or (ii) a land title survey for each Closing
Date Mortgaged Property prepared by a surveyor licensed or registered
in the state where such Closing Date Mortgaged Property is located,
which surveys must be sufficient to delete any standard printed survey
exception contained in the applicable Closing Date Mortgage Policy and
otherwise be in form and substance satisfactory to Administrative Agent
and Documentation Agent; and
(vii) Environmental Indemnity. An environmental indemnity
agreement, satisfactory in form and substance to Administrative Agent
and its counsel (as amended, restated or modified from time to time,
the "ENVIRONMENTAL INDEMNITY"), with respect
52
to the indemnification of Administrative Agent and Lenders for any
liabilities that may be imposed on or incurred by any of them as a
result of any Hazardous Materials Activity.
N. MATTERS RELATING TO EXISTING INDEBTEDNESS OF THE COMPANY
AND ITS SUBSIDIARIES AND THE REVOLVING CREDIT AGREEMENT.
(i) Termination of Existing Credit Agreement and Related
Liens; Revolving Credit Agreement; Intercreditor Agreement. On the
Closing Date, the Company and its Subsidiaries shall have (a) repaid in
full all Indebtedness outstanding under the Existing Credit Agreement
and terminated all letters of credit thereunder, (b) terminated any
commitments to lend or make other extensions of credit thereunder, (c)
delivered to Administrative Agent all documents or instruments
necessary to release all Liens securing Indebtedness or other
obligations of the Company and its Subsidiaries thereunder, and (d)
executed and delivered the Revolving Credit Agreement and consummated
the transactions contemplated by the Revolving Credit Agreement. The
parties to the Intercreditor Agreement shall have executed and
delivered an Intercreditor Agreement in form and substance satisfactory
to Administrative Agent and Documentation Agent in their sole
discretion.
(ii) Repurchase of Existing Senior Subordinated Notes. The
Company shall have entered into arrangements satisfactory to the
Company with respect to its repurchase of up to $15,450,000 in face
amount of the Senior Subordinated Notes for aggregate consideration,
including accrued interest, not to exceed $13,100,000.
(iii) Officer's Certificate. Administrative Agent shall have
received an Officer's Certificate of the Company stating that, (a)
after giving effect to the transactions described in this subsection
4.1N, the Indebtedness of Loan Parties (other than Indebtedness under
the Loan Documents) shall consist of (1) approximately $278,643,000 in
aggregate principal amount of outstanding Indebtedness described in
Part I of Schedule 6.3 annexed hereto, (2) Indebtedness in an aggregate
amount not to exceed $0 in respect of Capital Leases described in Part
II of Schedule 6.3 annexed hereto, (b) upon the making of the Term
Loans, the Company will proceed to consummate the Refinancing and the
Note Repurchase (and the Note Repurchase will be consummated shortly
after the Closing Date), (c) the transactions contemplated by the
Revolving Credit Agreement have been or concurrently will be
consummated, and (d) the Transaction Costs do not exceed $5,000,000 in
the aggregate. The terms and conditions of all such Indebtedness shall
be in form and in substance satisfactory to Administrative Agent and
Documentation Agent.
O. COMPLETION OF PROCEEDINGS. All corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby, the Loan Documents and the Revolving Credit Agreement and
all documents incidental thereto not previously found acceptable by
Administrative Agent and Documentation Agent, acting on behalf of Lenders, and
their counsel shall be satisfactory in form and substance to Administrative
Agent, Documentation Agent and
53
such counsel, and Administrative Agent, Documentation Agent and such counsel
shall have received all such counterpart originals or certified copies of such
documents as Administrative Agent and Documentation Agent may reasonably
request.
P. MINIMUM AVAILABILITY. As of the Closing Date and after
giving effect to all Loans and extensions of credit made under the Revolving
Credit Agreement as of the Closing Date, the Company shall have Excess
Availability of not less than $40,000,000.
Q. MATERIAL CONTRACTS. The Administrative Agent and the
Documentation Agent shall have received copies of all Material Contracts, if
any, as in effect on the Closing Date, certified as true and correct copies
thereof by an authorized officer of the Company, together with an Officer's
Certificate on behalf of the Company stating that such agreements remain in full
force and effect and that none of the Loan Parties has breached or defaulted in
any of its obligations under such agreements.
SECTION 5. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to
make the Loans, the Company represents and warrants to each Lender:
5.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING, BUSINESS
AND SUBSIDIARIES.
A. ORGANIZATION AND POWERS. Each Loan Party and each of the
Company's Subsidiaries is a corporation, partnership or limited liability
company duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization as specified in Schedule 5.1 annexed hereto.
Each Loan Party has all requisite power and authority to own and operate its
properties, to carry on its business as now conducted and as proposed to be
conducted, to enter into the Loan Documents to which it is a party and to carry
out the transactions contemplated thereby.
B. QUALIFICATION AND GOOD STANDING. Each Loan Party and each
of the Company's Subsidiaries is qualified to do business and is in good
standing in every jurisdiction where its assets are located and wherever
necessary to carry out its business and operations, except in jurisdictions
where the failure to be so qualified or in good standing has not had and could
not reasonably be expected to result in a Material Adverse Effect.
C. CONDUCT OF BUSINESS. Each Loan Party and each of the
Company's Subsidiaries is engaged only in the business described on Schedule
5.1C attached hereto and the businesses permitted to be engaged in pursuant to
subsection 8.14.
D. SUBSIDIARIES. All of the Subsidiaries of the Holding Co. as
of the Closing Date and their jurisdictions of organization are identified in
Schedule 5.1 annexed hereto. The Capital Stock of each of the Subsidiaries of
the Holding Co. identified in Schedule 5.1 annexed hereto is duly authorized,
validly issued, fully paid and nonassessable and none of such Capital Stock
constitutes Margin Stock and the holders thereof are not entitled to any
preemptive, first refusal or other similar rights. Except as indicated on such
Schedule 5.1, all such Capital Stock
54
is owned by the Holding Co. or one or more of its Wholly Owned Subsidiaries,
free and clear of all Liens other than the Liens in favor of the Revolving
Lenders. There are no outstanding debt or equity securities of the Holding Co.
or any of its Subsidiaries and no outstanding obligations of the Holding Co. or
any of its Subsidiaries convertible into or exchangeable for, or warrants,
options or other rights for the purchase or acquisition from Holding Co. or any
of its Subsidiaries, or other obligations of the Holding Co. or any Subsidiary
to issue, directly or indirectly, any shares of Capital Stock of the Holding Co.
or any Subsidiary of the Holding Co. Schedule 5.1 annexed hereto correctly sets
forth, as of the Closing Date, the ownership interest of the Holding Co. and
each of its Subsidiaries in each of the Subsidiaries of the Holding Co.
identified therein.
5.2 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION OF BORROWING. The execution, delivery and
performance of the Loan Documents have been duly authorized by all necessary
action on the part of each Loan Party that is a party thereto.
B. NO CONFLICT. The execution, delivery and performance by
Loan Parties of the Loan Documents to which they are parties and the
consummation of the transactions contemplated by the Loan Documents do not and
will not (i) violate any provision of any law or any governmental rule or
regulation applicable to any Loan Party or any of the Company's Subsidiaries,
the Organizational Documents of any Loan Party or any of the Company's
Subsidiaries or any order, judgment or decree of any court or other Government
Authority binding on any Loan Party or any of the Company's Subsidiaries, (ii)
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any Contractual Obligation of any Loan Party or
any of the Company's Subsidiaries, (iii) result in or require the creation or
imposition of any Lien upon any of the properties or assets of any Loan Party or
any of the Company's Subsidiaries (other than any Liens created under any of the
Loan Documents in favor of Administrative Agent on behalf of Lenders), or (iv)
require any approval of stockholders or any approval or consent of any Person
under any Contractual Obligation of any Loan Party or any of the Company's
Subsidiaries, except for such approvals or consents which will be obtained on or
before the Closing Date.
C. GOVERNMENTAL CONSENTS. The execution, delivery and
performance by Loan Parties of the Loan Documents to which they are parties and
the consummation of the transactions contemplated by the Loan Documents do not
and will not require any Governmental Authorization.
D. BINDING OBLIGATION. Each of the Loan Documents has been
duly executed and delivered by each Loan Party that is a party thereto and is
the legally valid and binding obligation of such Loan Party, enforceable against
such Loan Party in accordance with its respective terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability.
55
5.3 FINANCIAL CONDITION.
The Company has delivered to Administrative Agent and Lenders,
at Lender's request, the audited balance sheet and related statements of income,
retained earnings, cash flow, and changes in stockholders' equity for the
Company and its Subsidiaries as of June 30, 2002, and for the Fiscal Year then
ended, accompanied by the report thereon of the Company's independent certified
public accountants, PricewaterhouseCoopers LLP. The Company has also delivered
to Administrative Agent and Lenders the unaudited balance sheet and related
statements of income and cash flow for Company and its Subsidiaries and the
Holding Co. and its Subsidiaries as of August 31, 2002. All such financial
statements have been prepared in accordance with GAAP and fairly present (on a
consolidated basis) the financial position of the Company and its Subsidiaries
(or the Holding Co. and its Subsidiaries, as applicable) as at the dates thereof
and their results of operations for each of the periods then ended (except with
respect to the financial statements dated August 31, 2002, for the absence of
applicable footnotes and subject to normal year-end audit adjustments).
The Company has delivered to Administrative Agent and Lenders,
at Lenders' request: (A) projected monthly balance sheets, income statements and
statements of cash flows for the Company and its Subsidiaries for the period
from November 30, 2002 through June 30, 2003, and (B) projected annual balance
sheets, income statements and statements of cash flows for the Company and its
Subsidiaries and the Holding Co. and its Subsidiaries for the Fiscal Years
ending in 2003 through 2006. Such projections represent the Company's good faith
estimate of the future financial performance of the Company and its Subsidiaries
(or the Holding Co. and its Subsidiaries, as applicable) for the periods set
forth therein. Such projections have been prepared on the basis of the
assumptions set forth therein, which the Company believes are fair and
reasonable in light of current and reasonably foreseeable business conditions at
the time submitted to Administrative Agent and Lenders and based on good faith
estimates of the Company.
As of the Closing Date, the Holding Co. and its Subsidiaries
on a consolidated basis do not have (and will not have following the funding of
the initial Loans) any Contingent Obligation, contingent liability or liability
for taxes, long-term lease or unusual forward or long-term commitment that, as
of the Closing Date, is not reflected in the financial statements described in
the preceding paragraphs or the notes thereto and that, in any such case, is
material in relation to the business, operations, properties, assets, condition
(financial or otherwise) or prospects of the Holding Co. and its Subsidiaries on
a consolidated basis.
As of the Closing Date, the Company does not have any
obligations in existence as of the Closing Date which do not constitute
Indebtedness under GAAP in effect on the Closing Date which the Company expects
will constitute Indebtedness under GAAP after the Closing Date due to currently
proposed changes in GAAP.
5.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED PAYMENTS.
Since June 30, 2002, no event, development, or change has
occurred that has resulted in, evidences or could reasonably be expected to
result in, either in any case or in the
56
aggregate, a Material Adverse Effect. Since June 30, 2002, neither Company nor
any of its Subsidiaries has directly or indirectly declared, ordered, paid or
made, or set apart any sum or property for, any Restricted Payment or agreed to
do so except as permitted by subsection 6.5.
5.5 TITLE TO PROPERTIES; LIENS; REAL PROPERTY; INTELLECTUAL
PROPERTY.
A. TITLE TO PROPERTIES; LIENS. The Company and its
Subsidiaries have (i) good, sufficient, marketable and legal title (but in the
case of real property in the State of Texas, good and indefeasible title) to (in
the case of fee interests in real property), (ii) valid leasehold interests in
(in the case of leasehold interests in real or personal property), and (iii)
good marketable title (but in the case of personal property in Texas, good
title) to (in the case of all other personal property), all of their respective
properties and assets reflected in the financial statements referred to in
subsection 5.3 or in the most recent financial statements delivered pursuant to
subsection 6.2, in each case except for assets disposed of since the date of
such financial statements in the ordinary course of business or as otherwise
permitted under subsection 6.7. The Company and its Subsidiaries have the right
to use all licenses, permits, franchises and entitlements used or useful in
operation of their respective businesses, except where the failure to own or
have such right to use individually and in the aggregate could not reasonably be
expected to result in a Material Adverse Effect. Except as permitted by this
Agreement, all such properties and assets are free and clear of Liens.
B. REAL PROPERTY. As of the Closing Date, Schedule 5.5 annexed
hereto contains a true, accurate and complete list of (i) all fee interests in
any Real Property Assets and (ii) all leases, subleases or assignments of leases
(together with all amendments, modifications, supplements, renewals or
extensions of any thereof) affecting each Real Property Asset, regardless of
whether a Loan Party is the landlord or tenant (whether directly or as an
assignee or successor in interest) under such lease, sublease or assignment.
Except as specified in Schedule 5.5 annexed hereto, each agreement listed in
clause (ii) of the immediately preceding sentence is in full force and effect
and Company does not have knowledge of any default that has occurred and is
continuing thereunder, and each such agreement constitutes the legally valid and
binding obligation of each applicable Loan Party, enforceable against such Loan
Party in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally or by equitable principles.
C. INTELLECTUAL PROPERTY. As of the Closing Date, the Company
and its Subsidiaries own or have the right to use, all Intellectual Property
used in the conduct of their business, except where the failure to own or have
such right to use in the aggregate could not reasonably be expected to result in
a Material Adverse Effect. No claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property, nor does
Company know of any valid basis for any such claim, except for such claims that
in the aggregate could not reasonably be expected to result in a Material
Adverse Effect. The use of such Intellectual Property by the Company and its
Subsidiaries does not infringe on the rights of any Person, except for such
claims and infringements that, in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. All federal and state and all
foreign registrations of and applications
57
for Intellectual Property, and all unregistered Intellectual Property, that are
owned or licensed by the Company or any of its Subsidiaries and material to
their business on the Closing Date are described on Schedule 5.5 annexed hereto.
The Company acknowledges it holds the copyright registrations set forth in
Schedule 5.5, and hereby represents, warrants and certifies that the works that
are the subject of such copyright registrations are no longer in use in
connection with the business of the Company and the Company has no intention to
use such works after the Closing Date, and such copyright registrations are not
material to the business of the Company as currently conducted or contemplated.
D. INSURANCE. The Company and its Subsidiaries maintain
insurance of such types as is usually carried by corporations of established
reputation engaged in the same or similar businesses and similarly situated with
financially sound, responsible and reputable insurance companies or associations
(or, as to workers' compensation or similar insurance, with an insurance fund or
by self-insurance authorized by the jurisdiction in which its operations are
carried on) and in such amounts (and with co-insurance and deductibles) as such
insurance is usually carried by corporations of established reputation and
engaged in the same or similar businesses and similarly situated, but in any
event, with respect to improvements to real property and tangible personal
property (assuming the subject improvements are in fact replaced or restored),
in amounts in excess of the Loans. Neither the Company nor its Subsidiaries
maintains any formalized self-insurance program with respect to its assets or
operations or material risks with respect thereto in excess of $1,000,000 in the
aggregate. Schedule 5.5D annexed hereto contains a true, correct and complete
description of the insurance of the Company and its Subsidiaries.
5.6 LITIGATION; ADVERSE FACTS.
There are no Proceedings (whether or not purportedly on behalf
of any Loan Party or any of the Company's Subsidiaries) at law or in equity, or
before or by any court or other Government Authority (including any
Environmental Claims) that are pending or, to the knowledge of the Company,
threatened against or affecting any Loan Party or any of the Company's
Subsidiaries or any property of any Loan Party or any of the Company's
Subsidiaries and that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. Neither any Loan Party nor any
of the Company's Subsidiaries (i) is in violation of any applicable laws
(including Environmental Laws) that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect, or (ii) is
subject to or in default with respect to any final judgments, writs,
injunctions, decrees, rules or regulations of any court or other Government
Authority that, individually or in the aggregate, could reasonably be expected
to result in a Material Adverse Effect. Schedule 5.6B annexed hereto contains a
true, correct and complete list of all Proceedings whether or not purportedly on
behalf of any Loan Party or any of the Company's Subsidiaries, at law or in
equity, or before or by any court or other Government Authority (including any
Environmental Claims) that are pending or, to the knowledge of the Company,
threatened against or affecting any Loan Party or any of the Company's
Subsidiaries or any property of any Loan Party or any of the Company's
Subsidiaries or relating to this Agreement or any other Loan Document or any
transaction contemplated hereby or thereby. As of the Closing Date, none of the
Loan Parties holds any commercial tort
58
claims in respect of which a claim has been filed in a court of law or a written
notice by an attorney has been given to a potential defendant involving more
than $1,000,000.
5.7 PAYMENT OF TAXES.
All federal, state and local tax returns and other reports of
each Loan Party and each of the Company's Subsidiaries required to be filed by
any of them have been timely filed, and all taxes shown on such tax returns to
be due and payable and all assessments, fees and other governmental charges upon
each Loan Party and each of the Company's Subsidiaries and upon their respective
properties, assets, income, businesses and franchises that are due and payable
have been paid when due and payable, except for any taxes that are being
actively contested by a Loan Party and any of the Company's Subsidiaries in good
faith and by appropriate proceedings diligently pursued and as to which adequate
financial reserves have been established in accordance with GAAP on the
applicable Loan Party's books and records, and such proceedings conclusively
operate to stay the imposition of any fine or penalty and any sale of, and the
exercise of any other enforcement proceeding against, any portion of the
Collateral.
5.8 PERFORMANCE OF AGREEMENTS; MATERIAL CONTRACTS.
A. Neither any Loan Party nor any of the Company's
Subsidiaries is in default in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in any of its Contractual
Obligations or Organizational Documents, and no condition exists that, with the
giving of notice or the lapse of time or both, would constitute such a default,
except where the consequences, direct or indirect, of such default or defaults,
if any, could not reasonably be expected to result in a Material Adverse Effect.
B. No Material Contracts are in effect on the Closing Date.
5.9 GOVERNMENTAL REGULATION.
Neither any Loan Party nor any of the Company's Subsidiaries
is subject to regulation under the Public Utility Holding Company Act of 1935,
the Federal Power Act, the Interstate Commerce Act or the Investment Company Act
of 1940 or under any other federal or state statute or regulation which may
limit its ability to Incur Indebtedness or which may otherwise render all or any
portion of the Obligations unenforceable.
5.10 SECURITIES ACTIVITIES.
A. Neither any Loan Party nor any of the Company's
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or carrying any
Margin Stock.
B. Following application of the proceeds of each Loan, not
more than 25% of the value of the assets (either of the Company only or of the
Company and its Subsidiaries on a consolidated basis) subject to the provisions
of subsection 6.7 or subject to any restriction contained in any agreement or
instrument, between the Company and any Lender or any Affiliate
59
of any Lender, relating to Indebtedness and within the scope of subsection 8.2,
will be Margin Stock.
5.11 EMPLOYEE BENEFIT PLANS.
Except as set forth on Schedule 5.11 annexed hereto:
A. Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Internal Revenue Code, and other federal or
state law. Each Plan which is intended to qualify under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter from the IRS
and to the best knowledge of each Loan Party, nothing has occurred which would
cause the loss of such qualification. Each Loan Party and each ERISA Affiliate
has made all required contributions to any Plan subject to Section 412 of the
Internal Revenue Code, and no application for a funding waiver or an extension
of any amortization period pursuant to Section 412 of the Internal Revenue Code
has been made with respect to any Plan.
B. There are no pending or, to the best knowledge of any Loan Party,
threatened claims, actions, or lawsuits, or action by any Government Authority,
with respect to any Plan which has resulted or, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect.
There has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan which has resulted or,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.
C. Except to the extent that the following either individually or in
the aggregate cannot reasonably be expected to result in a Material Adverse
Effect: (i) no ERISA Event has occurred or is reasonably expected to occur, (ii)
no Pension Plan has any Unfunded Pension Liability, (iii) no Loan Party nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA), (iv) no Loan Party nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and
no event has occurred which, with the giving of notice under Section 4219 of
ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with
respect to a Multiemployer Plan, and (v) no Loan Party nor any ERISA Affiliate
has engaged in a transaction that could be subject to Section 4069 or 4212(c) of
ERISA.
D. Each Foreign Plan is in compliance in all material respects with the
laws and regulations applicable to such Foreign Plan and each Loan Party has
satisfied all contribution obligations in all material respects with respect to
such Foreign Plan (to the extent applicable). Each Foreign Plan and related
funding arrangement that is intended to qualify for tax-favored status has been
reviewed and approved for such status by the appropriate Government Authority
(or has been submitted for such review and approval within the applicable time
period), and nothing has occurred and no condition exists that is likely to
cause the loss or denial of such tax-favored status. No Foreign Plan has any
liabilities in any material respect in excess of the current value of such
Foreign Plan's assets, determined in accordance with the assumptions used for
funding such Foreign Plan pursuant to reasonable accounting standards in
accordance with
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applicable law. No Loan Party has incurred or reasonably expects to incur any
material liability as a result of the termination or other insolvency of any
Foreign Plan or any material liability which is not otherwise funded or
satisfied with readily available assets set aside with respect to such Foreign
Plan.
5.12 CERTAIN FEES.
No broker's or finder's fee or commission will be payable with
respect to this Agreement or any of the transactions contemplated hereby, other
than fees or commissions payable to the Lenders and the Administrative Agent
pursuant to the Loan Documents, and Company hereby indemnifies each of the
Agents and the Lenders against, and agrees that it will hold Lenders harmless
from, any claim, demand or liability for any such broker's or finder's fees
alleged to have been incurred in connection herewith or therewith and any
expenses (including reasonable fees, expenses and disbursements of counsel)
arising in connection with any such claim, demand or liability.
5.13 ENVIRONMENTAL PROTECTION.
Except as otherwise set forth on Schedule 5.13:
A. Each Loan Party and each of the Company's Subsidiaries has complied
in all respects with all Environmental Laws except to the extent that,
individually or in the aggregate, any such failure to comply could not
reasonably be expected to result in a Material Adverse Effect. Neither any Loan
Party, any of the Company's Subsidiaries, nor any of their respective presently
or previously owned or leased Real Property Assets, or presently conducted or
prior operations, is subject to any Environmental Claim from or liability
agreement with any Government Authority or private Person respecting (i)
compliance with any Environmental Law or (ii) any potential liabilities and
costs or Remedial Action arising from the Release or threatened Release of a
Hazardous Materials, except to the extent that, individually or in the
aggregate, any such Environmental Claim or liability agreement could not
reasonably be expected to result in a Material Adverse Effect.
B. Each Loan Party and each of the Company's Subsidiaries has obtained
and in compliance with all necessary permits or authorizations that are required
under Environmental Laws to operate the facilities, assets and business of each
Loan Party and each of the Company's Subsidiaries, and all such permits and
authorizations are in good standing, except to the extent that, individually or
in the aggregate, the failure obtain or comply could not reasonably be expected
to result in a Material Adverse Effect.
C. No Loan Party nor any of the Company's Subsidiaries, nor to the best
of any Loan Party's knowledge any of their predecessors in interest, has in
violation of any Environmental Law stored, treated, or disposed of any Hazardous
Material, except to the extent that, individually or in the aggregate, any such
violation could not reasonably be expected to result in a Material Adverse
Effect.
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D. No Loan Party nor any of the Company's Subsidiaries has received
notice of any threatened or pending Environmental Claim indicating that it is
not currently in compliance with, or that any Government Authority is
investigating its compliance with, any Environmental Laws or that it is or may
be liable to any other Person as a result of a Release or threatened Release of
a Hazardous Materials, except to the extent that, individually or in the
aggregate, the liability therefrom could not reasonably be expected to result in
a Material Adverse Effect.
E. None of the current operations of any Loan Party or any of the
Company's Subsidiaries, or to the knowledge of each Loan Party or its
Subsidiaries, any past operations of any Loan Party, any of the Company's
Subsidiaries or predecessors in interest, is the subject of any investigation by
any Government Authority evaluating whether a Remedial Action is needed to
respond to a Release or threatened Release of a Hazardous Materials, except to
the extent that, individually or in the aggregate, the liability therefrom could
not reasonably be expected to result in a Material Adverse Effect.
F. There has been no Release at any of the properties owned or operated
by the Loan Party, any of the Company's Subsidiaries or a predecessor in
interest, or to the knowledge of any Loan Party or its Subsidiaries, at any
disposal or treatment facility which received Hazardous Materials generated by
the Loan Parties, its Subsidiaries or any predecessor in interest, except to the
extent that, individually or in the aggregate, the liability therefrom could not
reasonably be expected to result in a Material Adverse Effect.
G. No Loan Party nor any Subsidiary of any Loan Party has entered into
any negotiations or settlement agreements with any Person (including the prior
owner of its property) imposing obligations or liabilities on any Loan Party or
any Subsidiary of any Loan Party with respect to any Release of a Hazardous
Materials or Environmental Claim, except to the extent that, individually or in
the aggregate, the liability therefrom could not reasonably be expected to
result in a Material Adverse Effect.
H. None of the products manufactured, distributed, or sold by any Loan
Party or any Subsidiary of any Loan Party contains asbestos containing material.
I. No lien imposed under Environmental Law has attached or is
threatened to attach to the Real Property Assets of any Loan Party or any
Subsidiary of any Loan Party.
J. No Environmental Claims have been asserted against any Loan Party or
any Subsidiary of any Loan Party, or to the knowledge of each Loan Party and its
Subsidiaries, any predecessor in interest, nor does any Loan Party or its
Subsidiaries have knowledge or notice of any threatened or pending Environmental
Claim against any Loan Party, its Subsidiaries or any predecessor in interest,
except to the extent that, individually or in the aggregate, the liability
therefrom could not reasonably be expected to result in a Material Adverse
Effect.
K. To the knowledge of each Loan Party or its Subsidiaries, no
Environmental Claims have been asserted against any facilities that may have
received Hazardous Materials generated by the Company or any predecessor in
interest, except to the extent that, individually
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or in the aggregate, the liability therefrom could not reasonably be expected to
result in a Material Adverse Effect.
5.14 EMPLOYEE AND LABOR MATTERS.
There is (i) no unfair labor practice complaint pending or, to
the best knowledge of each Loan Party, threatened against any Loan Party or any
of the Company's Subsidiaries before any Government Authority and no grievance
or arbitration proceeding pending or to the best knowledge of each Loan Party,
threatened against any Loan Party which arises out of or under any collective
bargaining agreement, (ii) no strike, labor dispute, slowdown, stoppage or
similar action or grievance pending or threatened against any Loan Party or any
of the Company's Subsidiaries or (iii) to the best knowledge of each Loan Party,
no union representation question existing with respect to the employees of any
Loan Party or any of the Company's Subsidiaries and no union organizing activity
taking place with respect to any of the employees of any Loan Party or any of
the Company's Subsidiaries. No Loan Party nor any of their ERISA Affiliates has
incurred any liability or obligation under the Worker Adjustment and Retraining
Notification Act ("WARN") or similar state law, which remains unpaid or
unsatisfied. The hours worked and payments made to employees of each Loan Party
and each of the Company's Subsidiaries have not been in violation of the Fair
Labor Standards Act or any other applicable legal requirements. All material
payments due from each Loan Party and each of the Company's Subsidiaries on
account of wages and employee health and welfare insurance and other benefits
have been paid or accrued as a liability on the books of such Loan Party or such
Subsidiary.
5.15 SOLVENCY.
Each Loan Party is and, upon the Incurrence of any Obligations
by such Loan Party on any date on which this representation is made, will be,
Solvent. The Company and its Subsidiaries, taken as a whole are, and, upon the
Incurrence of any Obligations by the Company and its Subsidiaries on any date on
which this representation is made, will be, Solvent
5.16 MATTERS RELATING TO COLLATERAL.
A. CREATION, PERFECTION AND PRIORITY OF LIENS. The execution
and delivery of the Collateral Documents by Loan Parties, together with (i) the
actions taken on or prior to the date hereof pursuant to subsections 4.1L, 4.1M,
6.16 and 6.17 and (ii) the delivery to Administrative Agent of any Pledged
Collateral not delivered to Administrative Agent at the time of execution and
delivery of the applicable Collateral Document (all of which Pledged Collateral
has been so delivered) are effective to create in favor of Administrative Agent
for the benefit of Lenders, as security for the respective Secured Obligations
(as defined in the applicable Collateral Document in respect of any Collateral),
a valid First Priority Lien on all of the Term Primary Collateral and the Shared
Collateral and a valid Second Priority Lien on all of the Revolver Primary
Collateral, and all filings and other actions necessary or desirable to perfect
and maintain the perfection and First Priority or Second Priority status, as
applicable, of such Liens have been duly made or taken and remain in full force
and effect, other than the
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periodic filing of UCC continuation statements in respect of UCC financing
statements filed by or on behalf of Administrative Agent.
B. GOVERNMENTAL AUTHORIZATIONS. No authorization, approval or
other action by, and no notice to or filing with, any Government Authority is
required for either (i) the pledge or grant by any Loan Party of the Liens
purported to be created in favor of Administrative Agent pursuant to any of the
Collateral Documents or (ii) the exercise by Administrative Agent of any rights
or remedies in respect of any Collateral (whether specifically granted or
created pursuant to any of the Collateral Documents or created or provided for
by applicable law), except for filings or recordings contemplated by subsection
5.16A and except as may be required, in connection with the disposition of any
Pledged Collateral, by laws generally affecting the offering and sale of
Securities.
C. ABSENCE OF THIRD-PARTY FILINGS. Except such as may have
been filed in favor of Administrative Agent as contemplated by subsection 5.16A,
in favor of the agent under the Revolving Credit Agreement with respect to the
Revolver Primary Collateral, and to evidence permitted lease obligations and
other Permitted Encumbrances, (i) no effective UCC financing statement, fixture
filing or other instrument similar in effect covering all or any part of the
Collateral is on file in any filing or recording office and (ii) no effective
filing covering all or any part of the IP Collateral is on file in the PTO.
D. MARGIN REGULATIONS. The pledge of the Pledged Collateral
pursuant to the Collateral Documents does not violate Regulation T, U or X of
the Board of Governors of the Federal Reserve System. No Loan Party is or will
be engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation T, U or X), and no
proceeds of any Loan will be used to purchase or carry any margin stock or to
extend credit to others for the purpose of purchasing or carrying any margin
stock.
E. INFORMATION REGARDING COLLATERAL. All information supplied
to Administrative Agent by or on behalf of any Loan Party with respect to any of
the Collateral (in each case taken as a whole with respect to any particular
Collateral) is accurate and complete in all material respects.
5.17 DISCLOSURE.
No representation or warranty of any Loan Party or any of the
Company's Subsidiaries contained in any Loan Document or in any other document,
certificate or written statement furnished to Lenders by or on behalf of any
Loan Party or any of the Company's Subsidiaries for use in connection with the
transactions contemplated by this Agreement contains any untrue statement of a
material fact or omits to state a material fact (known to the Company, in the
case of any document not furnished by it) necessary in order to make the
statements contained herein or therein not misleading in light of the
circumstances in which the same were made. Any projections and pro forma
financial information contained in such materials are based upon good faith
estimates and assumptions believed by the Company to be reasonable at the time
made, it being recognized by Lenders that such projections as to future events
are not to be viewed as facts and that actual results during the period or
periods covered by any such
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projections may differ from the projected results. There are no facts known (or
which should upon the reasonable exercise of diligence be known) to the Company
(other than matters of a general economic nature) that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect
and that have not been disclosed herein or in such other documents, certificates
and statements furnished to Lenders for use in connection with the transactions
contemplated hereby.
5.18 SUBORDINATED INDEBTEDNESS.
The Obligations constitute Senior Indebtedness (as such term
is defined in the Senior Subordinated Note Indenture) that is entitled to the
benefits of the subordination provisions of the Senior Subordinated Note
Indenture.
5.19 ADDITIONAL REPRESENTATIONS AND WARRANTIES.
A. Operating Leases. On the Closing Date, none of the Loan Parties has
any Operating Lease Obligations other than the Operating Lease Obligations set
forth on Schedule 5.19A annexed hereto.
B. Location of Bank Accounts. Schedule 5.19B annexed hereto sets forth
a complete and accurate list as of the Closing Date of all deposit, checking and
other bank accounts, all securities and other accounts maintained with any
broker dealer and all other similar accounts maintained by each Loan Party,
together with a description thereof (i.e., the bank or broker dealer at which
such deposit or other account is maintained and the account number and the
purpose thereof).
C. Customers and Suppliers. There exists no actual or threatened
termination, cancellation or limitation of, or modification to or change in, the
business relationship between (i) any Loan Party, on the one hand, and any
customer or any group thereof, on the other hand, whose agreements with any Loan
Party are individually or in the aggregate material to the business or
operations of such Loan Party, or (ii) any Loan Party, on the one hand, and any
material supplier thereof, on the other hand; and there exists no present state
of facts or circumstances that could give rise to or result in any such
termination, cancellation, limitation, modification or change.
D. No Bankruptcy Filing. No Loan Party is contemplating either a filing
under the Bankruptcy Code or the liquidation of all or a major portion of such
Loan Party's assets or property, and no Loan Party has any knowledge of any
Person contemplating a filing under the Bankruptcy Code against it.
E. Separate Existence.
(i) All customary formalities regarding the corporate
existence of each Loan Party has been at all times since its formation
and will continue to be observed.
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(ii) Each Loan Party has at all times since its formation
accurately maintained, and will continue to accurately maintain, its
financial statements, accounting records and other organizational
documents separate from those of any Affiliate of such Loan Party and
any other Person (other than another Loan Party). No Loan Party has at
any time since its formation commingled, and will not commingle, its
assets with those of any of its Affiliates or any other Person (other
than another Loan Party). Each Loan Party has at all times since its
formation accurately maintained, and will continue to accurately
maintain its own bank accounts.
(iii) Each Loan Party has at all times since its formation
identified itself, and will continue to identify itself, in all
dealings with the public, under its own name and as a separate and
distinct Person. No Loan Party has at any time since its formation
identified itself, or will identify itself, as being a division or a
part of any other Person.
F. Name; Jurisdiction of Organization; Organizational ID Number; Chief
Place of Business; Chief Executive Office; FEIN. Schedule 5.19F annexed hereto
sets forth a complete and accurate list as of the date hereof of (i) the exact
legal name of each Loan Party, (ii) the jurisdiction of organization of each
Loan Party, (iii) the organizational identification number of each Loan Party
(or indicates that such Loan Party has no organizational identification number),
(iv) each place of business of each Loan Party, (v) the chief executive office
of each Loan Party and (vi) the federal employer identification number of each
Loan Party.
G. Tradenames. Schedule 5.19G annexed hereto sets forth a complete and
accurate list as of the Closing Date of all tradenames used by each Loan Party.
H. Locations of Collateral. As of the Closing Date (and as of each
subsequent date as to which this representation and warranty is made), there is
no location at which any Loan Party has any Collateral (except for Inventory in
transit) other than (i) those locations listed on Schedule 5.19H annexed hereto
and (ii) any other locations approved in writing by the Collateral Agent from
time to time. Schedule 5.19H annexed hereto contains a true, correct and
complete list, as of the Closing Date, of the legal names and addresses of each
warehouse at which Collateral of each Loan Party is stored. None of the receipts
received by any Loan Party from any warehouse states that the goods covered
thereby are to be delivered to bearer or to the order of a named Person or to a
named Person and such named Person's assigns.
SECTION 6. COVENANTS
Company covenants and agrees that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and other Obligations, unless Requisite Lenders shall otherwise give
prior written consent, the Company shall perform, and shall cause each of its
Subsidiaries to perform, as applicable, all covenants in this Section 6.
6.1 PAYMENT OF LOANS. The Company shall promptly pay the principal of
and interest on the Term Loans on the dates and in the manner provided in the
Term Notes and in this Agreement.
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6.2 SEC REPORTS. Notwithstanding that Company may not be required to
remain subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Holding Co. shall file with the SEC and provide within 15 days
to the Administrative Agent and Lenders with such annual reports and such
information, documents and other reports as are specified in Sections 13 and
15(d) of the Exchange Act and applicable to a U.S. corporation subject to such
Sections, such information, documents and other reports to be so filed and
provided at the times specified for the filing of such information, documents
and reports under such Sections; provided, however, the reports, information and
other documents required to be filed and provided as described hereunder may, at
Company's option, be filed by and be those of the Holding Co. rather than
Company; provided further, however, that if Holding Co. conducts, directly or
indirectly, any business or holds, directly or indirectly, any significant
assets other than the Capital Stock of the other Loan Parties and the Company's
Subsidiaries at the time of filing and providing any such report, information or
other document containing financial statements of the Holding Co., Holding Co.
shall include in such report, information or other document summarized financial
information (as defined in Rule 1-02(bb) of Regulation S-X promulgated by the
SEC) with respect to the Company and its Subsidiaries.
6.3 LIMITATION ON INDEBTEDNESS.
A. NO INDEBTEDNESS. No Loan Party shall, and shall not permit any of
the Company's Subsidiaries to Incur, create, assume, Guarantee or suffer to
exist, or otherwise become or remain liable with respect to Indebtedness, except
as provided in subsection 6.3B and in no event shall any Loan Party or any of
the Company's Subsidiaries Guarantee any Indebtedness of the Unrestricted
Subsidiaries.
B. PERMITTED INDEBTEDNESS. Notwithstanding subsection 6.3A, the Company
may Incur any or all of the following Indebtedness and the Holding Co. may Incur
the Indebtedness described in clauses (i) and (viii) below:
(i) the Obligations;
(ii) the Indebtedness existing on the Closing Date and
described on Schedule 6.3 annexed hereto;
(iii) Capital Leases of Equipment and purchase money secured
Indebtedness Incurred to purchase Equipment; provided that the Liens
securing such Capital Leases and purchase money secured Indebtedness
shall attach only to the Equipment acquired by the Incurrence of such
Capital Leases and purchase money secured Indebtedness and provided
that such Capital Leases and purchase money Indebtedness shall not
exceed $20,000,000 in the aggregate at any time outstanding; provided,
however, no more than $5,000,000 may be Incurred in connection with
Capital Leases of Equipment and purchase money secured Indebtedness
Incurred to purchase Equipment unrelated to long term service
agreements entered into with certain third party providers for the use
of pipelines to be constructed by such third parties between the
Houston Facility and long term customers;
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(iv) Indebtedness owing by a Loan Party (other than Holding
Co., GP Parent or Limited Partner to another Loan Party) to another
Loan Party for inter-company loans and advances made for working
capital in the ordinary course of business provided, that the Loan
Parties shall, and shall cause their respective Subsidiaries, to cause
all Indebtedness and other obligations now or hereafter owed by it to
any of its Affiliates, to be subordinated in right of payment and
security to the Indebtedness and other Obligations owing to the
Administrative Agent and the Lenders in accordance with a subordination
agreement in form and substance satisfactory to the Lenders;
(v) Guaranties of Indebtedness which are permitted hereunder,
so long as any such Guaranties are not secured by Liens on any
personal, real or mixed property of the Loan Parties or any of the
Company's Subsidiaries (and in no event are Guaranties of Indebtedness
or any other obligations for the direct or indirect benefit of any of
the Unrestricted Subsidiaries permitted);
(vi) Indebtedness under the Revolving Credit Agreement in a
principal amount which does not exceed the lesser of $60,000,000 and
the sum of (A) 65% of the book value of the Inventory of the Company
and its Subsidiaries and (B) 85% of the book value of the Receivables
of the Company and its Subsidiaries;
(vii) Indebtedness in an aggregate principal amount which,
together with all other Indebtedness of the Company outstanding on the
date of such Incurrence (other than Indebtedness permitted by clauses
(i) through (vi) above) does not exceed $10,000,000 at any one time
outstanding and that is subordinated to the Obligations on terms
reasonably satisfactory to Administrative Agent and Documentation Agent
and is not secured by Liens on any personal, real or mixed property of
any of the Loan Parties or any of the Company's Subsidiaries;
(viii) Indebtedness which refinances in whole or in part the
Senior Subordinated Notes or the Senior Discount Notes so long as: (a)
the cash and non-cash interest rate payable with respect thereto does
not exceed the cash and non-cash interest rate payable with respect
thereto prior to such refinancing and there are no obligors for such
Indebtedness other than the existing obligors with respect to the
Indebtedness being refinanced, (b) interest with respect thereto is not
payable more frequently than under the Senior Subordinated Notes or the
Senior Discount Notes, as the case may be, (c) no principal of such
Indebtedness is due or payable prior to the maturity date thereof, (d)
the maturity date of such Indebtedness is no earlier than the July 1,
2006, (e) such Indebtedness is subordinated to the Indebtedness of such
Loan Party under the Loan Documents pursuant to subordination
provisions which are no less favorable to the Lenders than the
subordination provisions existing with respect thereto on the Closing
Date, as determined by the Administrative Agent and the Documentation
Agent in each of their sole discretion, and (f) such Indebtedness is
otherwise on terms and conditions (including, without limitation,
payment terms, covenants, remedies, defaults and other material terms)
no less favorable than those contained in the Senior Subordinated Note
Indenture or the Senior Discount Note Indenture, as the case may be, as
determined by
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the Administrative Agent and the Documentation Agent in each of their
sole discretion; and
(ix) Obligations in existence on the Closing Date that become
Indebtedness due to a change in GAAP after the Closing Date;
(x) Indebtedness resulting from any Hedging Obligations for
the purpose of hedging in the ordinary course of business (and not for
speculative purposes) consistent with past practices against
fluctuations in commodity prices, so long as such Indebtedness is not
secured by any Liens on any property or assets of the Loan Parties or
their respective Subsidiaries; and
(xi) so long as the Net Cash Proceeds are applied to prepay
the Loans in accordance with the provisions of subsection 2.4B(ii)(d),
other Subordinated Indebtedness in an aggregate amount not to exceed
$20,000,000.
6.4 LIMITATIONS ON SUBSIDIARIES.
A. LIMITATIONS ON SUBSIDIARIES. The Company shall not (A) (i) enter
into any transaction with any Subsidiary of the Company, (ii) become a party to
any agreement, instrument or other document with any Subsidiary of the Company,
(iii) make any loan or extend any credit to any Subsidiary of the Company or
make any Investment in any Subsidiary of the Company, (iv) sell, assign or
transfer any property or assets of the Company to any Subsidiary of the Company
or Incur, directly or indirectly, any Indebtedness on behalf of or for the
benefit of any Subsidiary of the Company, other than any such transaction,
agreement, instrument or other document, or any such loan, credit or investment,
that provides for payments by the Company to all Subsidiaries of the Company of
less than $200,000 in the aggregate per Fiscal Year, or (B) permit any
Subsidiary of the Company to create, Incur, assume, Guarantee or otherwise
become or remain liable with respect to Indebtedness in a principal amount in
excess of $100,000 at any time outstanding.
B. PREFERRED STOCK. The Company shall not and shall not permit any of
its Subsidiaries to issue any Preferred Stock except Preferred Stock issued to
and held by the Company.
6.5 LIMITATION ON RESTRICTED PAYMENTS.
A. RESTRICTED PAYMENTS. The Company shall not, and shall not permit any
Subsidiary to, directly or indirectly, make or commit or agree to make any
Restricted Payment other than as expressly permitted pursuant to subsection
6.5B.
B. PERMITTED RESTRICTED PAYMENTS. The provisions of subsection 6.5A
shall not prohibit:
(i) payments by TBC or ▇▇▇ to the Company;
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(ii) payments by the Company directly or indirectly to the
Holding Co. or payments made directly by the Company to be used to
distribute cash equal in value to the Capital Stock being repurchased,
redeemed, acquired to the extent required under the ESOP, repurchase,
redeem, acquire, or retire for value any Capital Stock of the Holding
Co. pursuant to any stockholders' agreement, management equity
subscription plan or agreement, stock option plan or agreement, or the
ESOP or other employee benefit plan or agreement; provided that the
aggregate amount distributed under the ESOP or the price paid, and not
reimbursed, for all such repurchased, redeemed, acquired, or retired
Capital Stock shall not during any Fiscal Year of the Company exceed an
amount equal to (i) $1,000,000 plus (ii) the minimum required amount to
be distributed and paid in cash under the ESOP;
(iii) payments to the Holding Co. for operating and
administrative expenses in the ordinary course of business in an
aggregate amount not to exceed $500,000 in any Fiscal Year;
(iv) a payment by the Company directly or indirectly to the
Holding Co. pursuant to the Tax Sharing Agreement; provided, however,
that the amount of any such payment shall not exceed the sum of (A) the
amount of taxes which the Company would have been liable for on a
stand-alone basis plus (B) the amount of any state net worth tax
applicable to the Holding Co. because of its ownership of GP Parent,
Limited Partner, the Company and the Company's Subsidiaries (but not
any of the Unrestricted Subsidiaries) and if such payment is for
purposes of paying taxes, such amount is used to pay taxes within five
days after such payment is made and provided further that any such
payments that are used for purposes of paying scheduled payments of
cash interest on the Senior Discount Notes shall also be subject to the
limitations in clause (v) below;
(v) dividends or payments by the Company to the Holding Co.
(including payments made pursuant to the Tax Sharing Agreement for
purposes of paying scheduled payments of cash interest on the Senior
Discount Notes) to be used by the Holding Co. solely for regularly
scheduled payments of cash interest in respect of the Senior Discount
Notes in accordance with the terms thereof, and only to the extent
required by the Senior Discount Note Indenture, provided that at the
time of any such dividend or payment by the Company (a) no Event of
Default or Potential Event of Default exists or would result therefrom,
(b) the Company shall have Excess Availability in an aggregate amount
of not less than $20,000,000 after giving effect to such dividend or
payment, (c) such dividends or payments are applied to such regularly
scheduled payments of interest within five (5) Business Days after the
date of such dividend or payment, and (d) for the sixty (60) days
immediately preceding the date of such dividend or payment, the Loan
Parties are current with respect to payment of their other
indebtedness, liabilities, and obligations in connection with their
customary business practices; provided, however, that notwithstanding
the foregoing, the Holding Co. shall not be required to apply such
dividend or payment within such five (5) Business Days after receipt so
long as (1) such dividends or payments are deposited on behalf of the
Holding Co. in an account in which Administrative Agent, for the
benefit of the Lenders, has a First Priority perfected security
interest securing the obligations under the Parent Guaranty and has
full dominion
70
and control, (2) such dividends or payments are not applied to such
cash interest in respect of the Senior Discount Notes at any time that
any Event of Default or Potential Event of Default exists or would
result therefrom, (3) the Company shall have Excess Availability in an
aggregate amount of not less than $20,000,000 after giving effect to
such deposit and such dividend or payment, (4) the aggregate amount of
such dividends and payments being held at Holding Co. at any time does
not exceed an amount equal to the aggregate amount of cash interest on
the Senior Discount Notes in a single Fiscal Year, (5) the Company has
delivered to Administrative Agent and Documentation Agent an Officer's
Certificate demonstrating pro forma compliance with the covenants
contained in Section 7 for the immediately succeeding two Fiscal
Quarters and stating that all of the representations and warranties
contained in this Agreement and the other Loan Documents are correct
and complete in all material respects as at the date of such
certificate as if made at such time, except for those that speak as of
a particular date (in which case such certificate shall confirm that
such representations and warranties were true and correct as of the
date when deemed made), and (6) the Company shall provide
Administrative Agent and Documentation Agent with not less than ten
(10) Business Days prior written notice of such dividend or payment by
the Company and any payment by the Holding Co. of interest in respect
the Senior Discount Notes;
(vi) regularly scheduled payments of cash interest in respect
of the Senior Subordinated Notes in accordance with the terms thereof,
and only to the extent required by, and subject to the subordination
provisions contained in the Senior Subordinated Note Indenture; and
(vii) on or after February 15, 2003, prepayment, redemption or
repurchase of the Senior Subordinated Notes remaining outstanding after
the Closing Date, provided that, (a) after any such prepayment,
redemption or repurchase and for the sixty (60) day period immediately
preceding any such prepayment, redemption or repurchase, the Loan
Parties are current with respect to payment of their other
indebtedness, liabilities, and obligations and the Company has
delivered an Officer's Certificate demonstrating projected pro forma
compliance with the financial covenants contained in Section 7 of this
Agreement for the immediately succeeding two Fiscal Quarters, (b) after
giving effect to any such prepayment, redemption or repurchase, the
Company has Excess Availability in an amount not less than $30,000,000
in the aggregate, (c) no Event of Default or Potential Event of Default
exists or would result therefrom (and the Administrative Agent and
Documentation Agent shall have received an Officer's Certificate
certifying as to the foregoing), (d) the Company has delivered to
Administrative Agent and Documentation Agent an Officer's Certificate
demonstrating pro forma compliance with the covenants contained in
Section 7 for the immediately succeeding two Fiscal Quarters and
stating that all of the representations and warranties contained in
this Agreement and the other Loan Documents are correct and complete in
all material respects as at the date of such certificate as if made at
such time, except for those that speak as of a particular date (in
which case such certificate shall confirm that such representations and
warranties were true and correct as of the date when deemed made), (e)
the aggregate consideration paid in connection therewith does not
exceed (i)
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$15,000,000 plus (ii) commencing with Fiscal Year 2004, an additional
$5,000,000 in each Fiscal Year plus (iii) if the ratio of Indebtedness
of the Company and its Subsidiaries on a consolidated basis as of the
end of the most recently ended Fiscal Quarter to Adjusted EBITDA for
the four full Fiscal Quarters most recently ended is less than 3.50 to
1.00 (or, if the outstanding principal balance of the Term Loans is
less than $40,000,000 in the aggregate, less than 4.00 to 1.00), an
additional $10,000,000; provided, however, in no event shall the
aggregate consideration paid in any Fiscal Year exceed $15,000,000 and
(f) with respect to any prepayment, redemption or repurchase on or
after February 15, 2003 but prior to March 31, 2003, the following
additional conditions precedent have been satisfied: (i) all scheduled
interest payments with respect to the Senior Subordinated Notes and
Senior Discount Notes have been paid, (ii) all property tax payments
with respect to the properties of the Company and its Subsidiaries that
are then due and payable have been made, and (iii) substantially all
turnaround expenses scheduled for January, 2003 have been paid.
6.6 LIMITATION ON RESTRICTIONS ON DISTRIBUTIONS FROM SUBSIDIARIES. The
Company shall not, and shall not permit any Subsidiary to, create, incur, assume
or otherwise cause or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any Subsidiary (a) to pay dividends
or make any other distributions on its Capital Stock to the Company or a
Subsidiary or pay any Indebtedness owed to the Company, (b) to make any loans or
advances to the Company or (c) to transfer any of its property or assets to the
Company, except:
(i) any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the Closing Date and described on Schedule
6.6 annexed hereto;
(ii) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness Incurred pursuant to an
agreement referred to in subsections 6.6(i) or this subsection 6.6(ii)
or contained in any amendment to an agreement referred to in subsection
6.6(i) or this subsection 6.6(ii); provided, however, that the
encumbrances and restrictions with respect to such Subsidiary contained
in any such refinancing agreement or amendment are no less favorable to
the Lenders than encumbrances and restrictions with respect to such
Subsidiary contained in the original agreements;
(iii) in the case of (c) above with respect to any leased
property, any such encumbrance or restriction consisting of customary
non-assignment provisions in leases to the extent such provisions
restrict the transfer of the lease or the property leased thereunder or
in purchase money financings;
(iv) in the case of subsection 6.6(c), restrictions contained
in security agreements or mortgages securing Indebtedness of a
Subsidiary to the extent such restrictions restrict the transfer of the
property subject to such security agreements or mortgages; and
(v) encumbrances or restrictions imposed by operation of
applicable law.
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6.7 LIMITATION ON SALES OF ASSETS AND SUBSIDIARY STOCK.
A. ASSET DISPOSITION. The Loan Parties shall not, and shall not permit
any of the Company's Subsidiaries to, directly or indirectly, consummate any
Asset Disposition, except as follows:
(i) The Company and its Subsidiaries may consummate Asset
Dispositions of Equipment that is obsolete or no longer useable by
Company or such Subsidiary in its business in an aggregate amount not
to exceed $2,000,000 per Fiscal Year so long as such Asset Dispositions
are consummated in the ordinary course of the Company's or such
Subsidiary's business;
(ii) The Company and its Subsidiaries may consummate an Asset
Disposition of Non-Core Assets provided that:
(a) the Company or its Subsidiary receives
consideration at the time of such Asset Disposition at least
equal to the fair market value (including the value of all
non-cash consideration) of the shares and assets subject to
such Asset Disposition, and at least 85% of the consideration
therefor is in the form of cash or Cash Equivalents. For
purposes of this provision, the express written assumption of
Indebtedness of the Company or any Subsidiary and the express
written release of the Company or such Subsidiary from all
liability on such Indebtedness in connection with such Asset
Disposition are deemed to be cash or Cash Equivalents;
(b) an amount equal to 100% of the Net Available Cash
from such Asset Disposition is applied by the Company (or such
Subsidiary, as the case may be) to prepay, repay, redeem or
purchase the Term Loans except to the extent otherwise
provided in subsection 2.4(B)(ii)(a);
(c) the Company has Excess Availability in an amount
at least equal to such Net Available Cash after such sale,
which minimum Excess Availability shall be reduced on a dollar
for dollar basis as such Net Available Cash from such Asset
Disposition is reinvested as provided in subsection
2.4(B)(ii)(a) or applied to prepay, repay, redeem or purchase
the Term Loans as provided in subsection 2.4(B)(ii)(a); and
(d) the aggregate Net Available Cash from all such
Asset Dispositions of Non-Core Assets shall not exceed
$20,000,000 in the aggregate during the term of this
Agreement.
▇. ▇▇▇▇▇▇▇ FACILITY. Notwithstanding anything contained in Article VI
to the contrary, the Company shall not sell, convey, pledge, hypothecate or
otherwise transfer the Houston Facility (or any material portion thereof) in one
transaction or a series of related transactions to one or more Persons,
including, but not limited to, any Subsidiary, except for pledges or security
interests granted in connection with securing Indebtedness borrowed under
73
this Agreement and the Second Priority Liens granted in connection with the
Revolving Credit Agreement.
C. REPURCHASE OF SENIOR SUBORDINATED NOTES. In the event of an Asset
Disposition that requires the purchase of the Senior Subordinated Notes (and
other Senior Subordinated Indebtedness), the Company will be required to
purchase Senior Subordinated Notes tendered pursuant to an offer by the Company
for the Senior Subordinated Notes (and other Senior Subordinated Indebtedness)
in accordance with the terms of the Senior Subordinated Note Indenture.
6.8 LIMITATION ON AFFILIATE TRANSACTIONS.
A. AFFILIATE TRANSACTIONS. The Loan Parties shall not, and shall not
permit any of the Company's Subsidiaries to, enter into, renew, extend or be a
party any transaction or series of transactions (including the purchase, sale,
lease or exchange of any property or the rendering of any service) with any
Affiliate of the Loan Parties (an "AFFILIATE TRANSACTION") except for (1) in the
ordinary course of business in a manner and to the extent consistent with past
practice and necessary or desirable for the prudent operations of its business
for fair consideration and on terms that are no less favorable to such Loan
Party or such Subsidiary of the Company than those that could be obtained at the
time of such transaction in a comparable transaction on arms-length dealings
with a Person who is not such an Affiliate, (2) if such Affiliate Transaction
involves an amount in excess of $2,500,000, (i) are set forth in writing and
(ii) have been approved by a majority of the members of the Board of Directors
having no material personal financial stake in such Affiliate Transaction and
(3) if such Affiliate Transaction involves an amount in excess of $5,000,000,
have been determined by a nationally recognized investment banking firm to be
fair, from a financial standpoint, to the Loan Party or the Company's
Subsidiary, as the case may be.
B. CERTAIN TRANSACTIONS PERMITTED. The provisions of subsection 6.8A
shall not prohibit (i) any Restricted Payment permitted to be paid pursuant to
subsection 6.5, or any payment or transaction specifically excepted from the
definition of Restricted Payment, (ii) any issuance of Capital Stock pursuant
to, or the funding of, employment arrangements, stock options and stock
ownership plans approved by the Board of Directors or the Governing Body of the
relevant Loan Parties, (iii) the grant of stock options or similar rights to
employees and directors pursuant to plans approved by the Board of Directors or
the Governing Body of the Company, (iv) loans or advances to executive officers,
non-employee directors, and employees of the Loan Parties made in the ordinary
course of business; provided that (A) no Potential Event of Default or Event of
Default shall exist or result therefrom and (B) the aggregate amount of such
loans made by the Loan Parties and outstanding at any one time shall not exceed
$300,000, calculated net of any bad debt reserves and writeoffs, (v) the payment
of reasonable fees to directors of the Company and its Subsidiaries who are not
employees of the Company or its Subsidiaries in an aggregate amount not to
exceed $1,000,000 in any Fiscal Year, (vi) any Affiliate Transaction between
Subsidiaries of the Company, (vii) the purchase of or the payment of
Indebtedness of or monies owed by the Company for goods or materials purchased,
or services received, in the ordinary course of business, and (viii) the Tax
Sharing Agreement; provided, however, that the aggregate amount payable by the
Company pursuant thereto shall not exceed the sum of (A) the amount of taxes
which the Company would have been liable for on a
74
stand-alone basis plus (B) the amount of any state net worth tax applicable to
Holding Co. and GP Parent.
6.9 LIMITATION ON THE SALE OR ISSUANCE OF CAPITAL STOCK OF
SUBSIDIARIES. The Loan Parties shall not and shall not permit any of the
Company's Subsidiaries to issue, sell or enter into any agreement or arrangement
to issue or sell or otherwise dispose of any shares of Capital Stock of a
Subsidiary of Holding Co. (other than any Unrestricted Subsidiary), and shall
not permit any Subsidiary of Holding Co. (other than any Unrestricted
Subsidiary), directly or indirectly, to issue or sell or otherwise dispose of
any shares of its Capital Stock or any Security convertible into Capital Stock
except to the Company.
6.10 PROHIBITION ON MERGERS AND LIENS.
A. NO MERGERS. The Loan Parties shall not, and shall not permit any of
the Company's Subsidiaries to, alter the corporate, capital or legal structure
of any Loan Party or any of the Company's Subsidiaries, or enter into any
transaction of merger or consolidation or amalgamation, or liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution) except any Subsidiary
of the Company may be merged with or into the Company, or be liquidated, wound
up or dissolved, or all or any part of its business, property or assets may be
conveyed, sold, leased, transferred or otherwise disposed of, in one transaction
or a series of transactions, to the Company; provided that, in the case of such
a merger, the Company shall be the continuing or surviving Person;
B. PROHIBITION ON LIENS. Other than Permitted Encumbrances, the Loan
Parties shall not and shall not permits any of the Company's Subsidiaries to:
(i) directly or indirectly, Incur or permit to exist any Lien (including Liens
on the Capital Stock of its Subsidiaries), or with respect to any property or
asset of any kind, whether owned at the Closing Date or thereafter acquired,
other than Permitted Encumbrances, (ii) enter into or become subject to any
Negative Pledge; provided that any Negative Pledge entered into in connection
with a Capital Lease or purchase money Lien permitted under clause (vii) of the
definition of Permitted Encumbrances shall be allowed up the amount of the
Indebtedness secured by such Lien if such Negative Pledge applies only to the
property or assets securing such Indebtedness.
C. EQUITABLE LIEN IN FAVOR OF LENDERS. If any Loan Party or any of the
Company's Subsidiaries shall create or assume any Lien upon any of its
properties or assets, whether now owned or hereafter acquired, other than Liens
excepted by the provisions of subsection 6.10B, it shall make or cause to be
made effective provision whereby the Obligations will be secured by such Lien
equally and ratably with any and all other Indebtedness secured thereby as long
as any such Indebtedness shall be so secured; provided that, notwithstanding the
foregoing, this covenant shall not be construed as a consent by Requisite
Lenders to the creation or assumption of any such Lien not permitted by the
provisions of subsection 6.10B.
6.11 EXISTENCE, ETC.
Each Loan Party will, and will cause the Company's
Subsidiaries to, at all times preserve and keep in full force and effect its
existence in the jurisdiction of organization and
75
other jurisdictions where it is qualified to do business specified on Schedule
5.1 and all rights, licenses, permits and franchises material to its business
except to the extent that any such failure could not reasonably be expected to
have individually or in the aggregate a Material Adverse Effect; provided,
however, that any Solvent Subsidiary of the Company may be merged with or into
the Company, or be liquidated, wound up or dissolved, or all or any part of its
business, property or assets may be conveyed, sold, leased, transferred or
otherwise disposed of, in one transaction or a series of transactions, to the
Company; provided that, in the case of such a merger, the Company shall be the
continuing or surviving Person.
6.12 PAYMENT OF TAXES AND CLAIMS.
A. Each Loan Party will, and will cause each of the Company's
Subsidiaries to, pay all taxes, assessments and other governmental charges
imposed upon it or any of its properties or assets or in respect of any of its
income, businesses or franchises before any penalty accrues thereon, and all
claims (including claims for labor, services, materials and supplies) for sums
that have become due and payable and that by law have or may become a Lien upon
any of its properties or assets, prior to the time when any penalty or fine
shall be incurred with respect thereto; provided that no such tax, assessment,
charge or claim need be paid if it is being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted, so long as
(i) such reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor, (ii) such proceedings
conclusively operate to stay the imposition of any fine or penalty, and (iii) in
the case of a tax, assessment, charge or claim which has or may become a Lien
against any of the Collateral, such proceedings conclusively operate to stay the
sale of any portion of the Collateral to satisfy such charge or claim.
B. No Loan Party will nor will it permit any of the Company's Subsidiaries to,
file or consent to the filing of any consolidated income tax return with any
Person (other than any other Loan Party or any of the Company's Subsidiaries).
6.13 MAINTENANCE OF PROPERTIES; INSURANCE; APPLICATION OF NET
INSURANCE/ CONDEMNATION PROCEEDS.
A. MAINTENANCE OF PROPERTIES. Each Loan Party will, and will
cause each of the Company's Subsidiaries to, maintain or cause to be maintained
in good repair, working order and condition, ordinary wear and tear excepted,
all properties used or useful in the business of the Loan Parties and the
Company's Subsidiaries (including all Intellectual Property) and from time to
time will make or cause to be made all appropriate repairs, renewals and
replacements thereof.
B. INSURANCE. Each Loan Party shall maintain with financially
sound and reputable insurers acceptable to the Administrative Agent and
Documentation Agent or otherwise having a rating of at least A+ or better by
Best Rating Guide, insurance against: (i) loss or damage by fire with extended
coverage; (ii) theft, burglary, pilferage, and loss in transit; (iii) public
liability and third party property damage; (iv) larceny, embezzlement, or other
criminal liability; (v) business interruption; and (vi) such other hazards or of
such other types as is
76
customary for Persons engaged in the same or similar business as Company and its
Subsidiaries, all such insurance as the Administrative Agent or the
Documentation Agent, in the reasonable discretion of each such Agent, shall
specify, in amounts, and under policies acceptable to the Administrative Agent
and the Documentation Agent. Each insurance policy issued as required by this
Section shall cause the Administrative Agent, for the benefit of the Lenders, to
be named as secured party or mortgagee and sole loss payee or additional
insured, in a manner acceptable to the Administrative Agent and Documentation
Agent and shall contain a clause or endorsement requiring the insurer to give
not less than thirty (30) days prior written notice to the Administrative Agent
in the event of cancellation of such policy for any reason whatsoever and a
clause or endorsement stating that the interest of the Administrative Agent
shall not be impaired or invalidated by any act or neglect of the insured Person
or the owner of any premises for purposes more hazardous than are permitted by
such policy. Without limiting the generality of the foregoing, each Loan Party
will maintain or cause to be maintained (i) flood insurance with respect to each
Flood Hazard Property that is located in a community that participates in the
National Flood Insurance Program, in each case in compliance with any applicable
regulations of the Board of Governors of the Federal Reserve System, and (ii)
replacement value casualty insurance on the Collateral under such policies of
insurance, with such insurance companies, in such amounts, with such
deductibles, and covering such risks as are at all times satisfactory to
Administrative Agent in its commercially reasonable judgment. All premiums for
such insurance shall be paid by the Loan Parties when due, and certificate of
insurance and, if requested by Administrative Agent or any Lender, photocopies
of the policies shall be delivered to Administrative Agent, in each case, in
sufficient quantity for distribution by the Administrative Agent to each of the
Lenders. If any Loan Party fails to procure (or cause to procured) such
insurance or to pay the premiums therefore when due, the Administrative Agent
may, in its commercially reasonable judgment do so.
C. APPLICATION OF NET INSURANCE/CONDEMNATION PROCEEDS.
(i) Business Interruption Insurance. Upon receipt by any Loan
Party or any of the Company's Subsidiaries of any business interruption
insurance proceeds constituting Net Insurance/Condemnation Proceeds,
(a) so long as no Event of Default shall have occurred and be
continuing and subject to subsection 2.4B(ii)(h), the Loan Party or
such Subsidiary may retain and apply such Net Insurance/Condemnation
Proceeds for working capital purposes, and (b) if an Event of Default
shall have occurred and be continuing, the Company shall apply an
amount equal to such Net Insurance/Condemnation Proceeds to prepay the
Loans as provided in subsection 2.4B;
(ii) Net Insurance/Condemnation Proceeds Received by the
Company. Subject to subsection 2.4B(ii)(h), upon receipt by any Loan
Party or any of the Company's Subsidiaries of any Net
Insurance/Condemnation Proceeds other than from business interruption
insurance and other than with respect to all or substantially all of
the Houston Facility,
(a) so long as no Event of Default shall have
occurred and be continuing, if the Net Insurance/Condemnation
Proceeds in respect of a covered loss is less than $2,000,000,
the Company shall, or shall cause one or more of its
77
Subsidiaries to, in the case of Net Insurance/Condemnation
Proceeds from property insurance, promptly apply such Net
Insurance/Condemnation Proceeds to the costs of repairing,
restoring, or replacing the assets in respect of which such
Net Insurance/Condemnation Proceeds were received or, to the
extent not so applied, to prepay the Loans as provided in
subsection 2.4B;
(b) so long as no Event of Default shall have
occurred and be continuing, if the Net Insurance/Condemnation
Proceeds in respect of a covered loss exceeds $2,000,000, the
Company shall deposit such Net Insurance/Condemnation Proceeds
in the Collateral Account, and so long as Company or any of
its Subsidiaries proceeds diligently to repair, restore or
replace the assets of the Company or such Subsidiary in
respect of which such Net Insurance/Condemnation Proceeds were
received and no Event of Default or Potential Event of Default
shall have occurred and be continuing, Administrative Agent
shall from time to time disburse to the Company or such
Subsidiary from the Collateral Account, to the extent of any
such Net Insurance/Condemnation Proceeds remaining therein in
respect of the applicable covered loss, amounts necessary to
pay the cost of such repair, restoration or replacement after
the receipt by Administrative Agent of invoices or other
documentation reasonably satisfactory to Administrative Agent
and Documentation Agent relating to the amount of costs so
incurred and the work performed (including, if required by
Administrative Agent, lien releases and architects'
certificates); provided, however, that if at any time
Administrative Agent reasonably determines (A) that Company or
such Subsidiary is not proceeding diligently with such repair,
restoration or replacement or (B) that such repair,
restoration or replacement cannot be completed with the Net
Insurance/Condemnation Proceeds then held by Administrative
Agent for such purpose, together with funds otherwise
available to the Company for such purpose, or that such
repair, restoration or replacement cannot be completed within
180 days after the receipt by Administrative Agent of such Net
Insurance/Condemnation Proceeds, Administrative Agent shall,
and Company hereby authorizes Administrative Agent to, apply
such Net Insurance/ Condemnation Proceeds to prepay the Loans
as provided in subsection 2.4B; and
(c) if an Event of Default shall have occurred and be
continuing, the Company shall apply an amount equal to such
Net Insurance/Condemnation Proceeds to prepay the Loans as
provided in subsection 2.4B.
(d) Upon receipt by any Loan Party or any of the
Company's Subsidiaries of any Net Insurance/Condemnation
Proceeds with respect to all or substantially all of the
Houston Facility, the Company shall apply an amount equal to
such Net Insurance/Condemnation Proceeds to prepay the Loans
as provided in subsection 2.4B unless the Requisite Lenders
otherwise agree.
(iii) Net Insurance/Condemnation Proceeds Received by
Administrative Agent. Subject to subsection 2.4B(ii)(h), upon receipt
by Administrative Agent of any Net Insurance/Condemnation Proceeds as
loss payee,
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(a) if and to the extent Company would have been
required to apply such Net Insurance/Condemnation Proceeds (if
it had received them directly) to prepay the Loans,
Administrative Agent shall, and Company hereby authorizes
Administrative Agent to, apply such Net Insurance/Condemnation
Proceeds to prepay the Loans as provided in subsection 2.4B;
(b) to the extent the foregoing clause (a) does not
apply and the aggregate amount of such Net
Insurance/Condemnation Proceeds received (and reasonably
expected to be received) by Administrative Agent in respect of
any covered loss does not exceed $2,000,000, Administrative
Agent shall deliver such Net Insurance/Condemnation Proceeds
to the Company, and Company shall, or shall cause one or more
of its Subsidiaries to, (A) in the case of Net
Insurance/Condemnation Proceeds from property insurance,
promptly apply such Net Insurance/Condemnation Proceeds to the
costs of repairing, restoring, or replacing the assets in
respect of which such Net Insurance/Condemnation Proceeds were
received and (B) in the case of Net Insurance/Condemnation
Proceeds from business interruption insurance, use such
proceeds for general corporate purposes;
(c) to the extent the foregoing clause (a) does not
apply and the aggregate amount of such Net
Insurance/Condemnation Proceeds received (and reasonably
expected to be received) by Administrative Agent in respect of
any covered loss exceeds $2,000,000, (A) in the case of Net
Insurance/Condemnation Proceeds from property insurance,
Administrative Agent shall hold such Net
Insurance/Condemnation Proceeds in the Collateral Account
pursuant to the terms of the Security Agreement and, so long
as Company or any of its Subsidiaries proceeds diligently to
repair, restore or replace the assets of the Company or such
Subsidiary in respect of which such Net Insurance/Condemnation
Proceeds were received and no Event of Default or Potential
Event of Default shall have occurred and be continuing,
Administrative Agent shall from time to time disburse to the
Company or such Subsidiary from the Collateral Account, to the
extent of any such Net Insurance/Condemnation Proceeds
remaining therein in respect of the applicable covered loss,
amounts necessary to pay the cost of such repair, restoration
or replacement after the receipt by Administrative Agent of
invoices or other documentation reasonably satisfactory to
Administrative Agent and Documentation Agent relating to the
amount of costs so incurred and the work performed (including,
if required by Administrative Agent, lien releases and
architects' certificates); provided, however, that if at any
time Administrative Agent reasonably determines (a) that
Company or such Subsidiary is not proceeding diligently with
such repair, restoration or replacement or (b) that such
repair, restoration or replacement cannot be completed with
the Net
79
Insurance/Condemnation Proceeds then held by Administrative
Agent for such purpose, together with funds otherwise
available to the Company for such purpose, or that such
repair, restoration or replacement cannot be completed within
180 days after the receipt by Administrative Agent of such Net
Insurance/Condemnation Proceeds, Administrative Agent shall,
and Company hereby authorizes Administrative Agent to, apply
such Net Insurance/ Condemnation Proceeds to prepay the Loans
as provided in subsection 2.4B and (B) in the case of Net
Insurance/Condemnation Proceeds from business interruption
insurance, transfer such proceeds to the Company to use for
general corporate purposes.
6.14 COMPLIANCE WITH LAWS, ETC.
Each Loan Party shall comply, and shall cause each of the Company's
Subsidiaries to comply, with the requirements of all applicable laws, rules,
regulations and orders of any Government Authority (including all Environmental
Laws), noncompliance with which could reasonably be expected to result in,
individually or in the aggregate, a Material Adverse Effect.
6.15 ENVIRONMENTAL MATTERS.
A. ENVIRONMENTAL DISCLOSURE. The Company will deliver to
Administrative Agent and Lenders:
(i) Environmental Audits and Reports. As soon as practicable
following receipt thereof, copies of all environmental audits,
investigations, analyses and reports of any kind or character, whether
prepared by personnel of any Loan Party or any of the Company's
Subsidiaries or by independent consultants, governmental authorities or
any other Persons, with respect to significant environmental matters at
any Facility that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect or with respect to
any Environmental Claims that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect;
(ii) Notice of Certain Releases, Remedial Actions, Etc. The
Company shall notify the Administrative Agent of the following matters
at the following times:
(a) Promptly after receipt of any notice of any
violation by any Loan Party or any of the Company's
Subsidiaries of any Environmental Law which could have, or has
resulted in, a Material Adverse Effect or that any
Governmental Authority has asserted in writing that any Loan
Party or any of the Company's Subsidiaries is not in
compliance with any Environmental Law or is investigating any
Loan Party's or any of the Company's Subsidiaries compliance
therewith;
(b) Immediately after receipt of any written notice
that any Loan Party or any of the Company's Subsidiaries is or
may be liable to any Person as a result of the Release or
threatened Release of any Hazardous Materials or that any Loan
Party or any of the Company's Subsidiaries is subject to
investigation by any Governmental Authority evaluating whether
any Remedial Action is needed to respond to the Release or
threatened Release of any Hazardous Materials which, in either
case, is reasonably likely to give rise to liability in excess
of $2,000,000;
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(c) Immediately after receipt of any written notice
of the imposition of any Environmental Lien against any
property of any Loan Party or any of the Company's
Subsidiaries or any Environmental Claim;
(d) Prior to the undertaking thereof, any Remedial
Action taken by the Company or any other Person in response to
(1) any Hazardous Materials Activities the existence of which
could reasonably be expected to result in one or more
Environmental Claims having, individually or in the aggregate,
a Material Adverse Effect, or (2) any Environmental Claims
that, individually or in the aggregate, could reasonably be
expected to result individually or in the aggregate in a
Material Adverse Effect. The Company shall take, and shall
cause each of its Subsidiaries to take, prompt and appropriate
action to respond to any non-compliance with Environmental
Laws and shall, upon request of the Administrative Agent,
report to the Administrative Agent on such response.
(iii) Notice of Certain Proposed Actions Having Environmental
Impact. Prompt written notice describing in reasonable detail (a) any
proposed acquisition of stock, assets, or property by any Loan Party or
any of the Company's Subsidiaries that could reasonably be expected to
(1) expose any Loan Party or any of the Company's Subsidiaries to, or
result in, Environmental Claims that could reasonably be expected to
result in, individually or in the aggregate, a Material Adverse Effect
or (2) affect the ability of any Loan Party or any of the Company's
Subsidiaries to maintain in full force and effect all material
Governmental Authorizations required under any Environmental Laws for
their respective operations and (b) any proposed action to be taken by
any Loan Party or any of the Company's Subsidiaries to modify current
operations in a manner that could reasonably be expected to subject any
Loan Party or any of the Company's Subsidiaries to any additional
obligations or requirements under any Environmental Laws that could
reasonably be expected to result in, individually or in the aggregate,
a Material Adverse Effect.
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B. LOAN PARTIES' ACTIONS REGARDING HAZARDOUS MATERIALS
ACTIVITIES, ENVIRONMENTAL CLAIMS AND VIOLATIONS OF ENVIRONMENTAL LAWS. Each Loan
Party shall conduct, and shall cause each of the Company's Subsidiaries to
conduct, its business in compliance with all Environmental Laws applicable to
it, including those relating to the generation, handling, use, storage, Release
and disposal of any Hazardous Materials, except to the extent that may not
reasonably be expected to result individually or in the aggregate in a Material
Adverse Effect. Each Loan Party shall promptly take, and shall cause each of the
Company's Subsidiaries promptly to take, any and all actions necessary to (i)
cure any violation of applicable Environmental Laws by any Loan Party or the
Company's Subsidiaries that could reasonably be expected to result in,
individually or in the aggregate, a Material Adverse Effect and (ii) make an
appropriate response to any Environmental Claim against any Loan Party or any of
the Company's Subsidiaries and discharge any obligations it may have to any
Person thereunder where failure to do so could reasonably be expected to result
in, individually or in the aggregate, a Material Adverse Effect.
C. ENVIRONMENTAL INVESTIGATIONS. The Company agrees that
Administrative Agent may, from time to time and in its reasonable discretion,
(i) retain, at Company's expense, an independent professional consultant (a
"CONSULTANT") to review any environmental audits, investigations, analyses and
reports relating to Hazardous Materials prepared by or for Company and (ii) if
(a) Administrative Agent reasonably believes that any Loan Party has breached
any representation, warranty or covenant contained in subsections 5.13 or 6.15
or that there has been a material violation of Environmental Laws at any
Facility or by any Loan Party or any of the Company's Subsidiaries at any other
location or (b) an Event of Default has occurred and is continuing, conduct its
own investigation of any Facility; provided that, in the case of any Facility no
longer owned, leased, operated or used by any Loan Party or any of the Company's
Subsidiaries, the Company shall only be obligated to use its best efforts to
obtain permission for Administrative Agent's Consultant to conduct an
investigation of such Facility. For purposes of conducting such a review and/or
investigation, the Company hereby grants to Administrative Agent and its agents,
employees, consultants and contractors the right, upon not less than two
Business Days' prior written notice, to enter into or onto any Facilities
currently owned, leased, operated or used by any Loan Party or any of the
Company's Subsidiaries and to perform such tests on such property (including
taking samples of soil, groundwater and suspected asbestos-containing materials)
as are reasonably necessary in connection therewith. Any such investigation of
any Facility shall be conducted, unless otherwise agreed to by the Company and
Administrative Agent, during normal business hours and, to the extent reasonably
practicable, shall be conducted so as not to interfere with the ongoing
operations at such Facility or to cause any damage or loss to any property at
such Facility. The Company and Administrative Agent hereby acknowledge and agree
that any report of any investigation conducted at the request of Administrative
Agent pursuant to this subsection 6.7C will be obtained and shall be used by
Administrative Agent and Lenders for the purposes of Lenders' internal credit
decisions, to monitor and police the Loans and to protect Lenders' security
interests, if any, created by the Loan Documents. Administrative Agent agrees to
deliver a copy of any such report to the Company with the understanding that
Company acknowledges and agrees that (x) it will indemnify and hold harmless
Administrative Agent and each Lender from any costs, losses or liabilities
relating to the Company's use of or reliance on such report, (y) neither
Administrative
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Agent nor any Lender makes any representation or warranty with respect to such
report, and (z) by delivering such report to the Company, neither Administrative
Agent nor any Lender is requiring or recommending the implementation of any
suggestions or recommendations contained in such report.
Without limiting the generality of the foregoing, to the
extent a material change has occurred in information previously provided to the
Administrative Agent regarding any Release, Remedial Action, Environmental Claim
or any non-compliance with Environmental Laws, the Company shall submit to the
Administrative Agent annually, or more frequently if requested by the
Administrative Agent, commencing on the first anniversary date of the Closing
Date, and on each anniversary date thereafter, an update of the status of each
such environmental issue concerning any Loan Party or any of the Company's
Subsidiaries, or any of their respective properties or operations (whether past
or present), if any. The Administrative Agent or any Lender may request, in
which case the Company will promptly furnish or cause to be promptly furnished
to the Administrative Agent, copies of technical reports (if any) prepared by
any Loan Party or any of the Company's Subsidiaries and its written
communications with any Government Authority regarding any Release,
Environmental Claim, alleged non-compliance or environmental liability.
6.16 ADDITIONAL SUBSIDIARIES. No Loan Party shall, without the
prior written consent of Documentation Agent, Administrative Agent and Requisite
Lenders, directly or indirectly organize, create, acquire or permit to exist any
Subsidiary other than those listed on Schedule 4.1 annexed hereto and the
Unrestricted Subsidiaries. No Subsidiary of Holding Co. (other than an
Unrestricted Subsidiary or the Company) shall hold or acquire any asset other
than the assets having an aggregate book value in excess of $500,000. The
Company shall not make any Investment in any Subsidiary of Holding Co.
6.17 MATTERS RELATING TO ADDITIONAL REAL PROPERTY COLLATERAL.
A. ADDITIONAL MORTGAGES, ETC. From and after the Closing Date,
if any Loan Party acquires any fee interest in real property or any Material
Leasehold Property excluding any such Real Property Asset which requires the
consent of any applicable lessor for a Lien to be granted, where such Loan Party
has attempted in good faith, but are unable, to obtain such lessor's consent
(any such non-excluded Real Property Asset described in the foregoing being an
"ADDITIONAL MORTGAGED PROPERTY"), such Loan Party shall deliver to
Administrative Agent, as soon as practicable after such Person acquires such
Additional Mortgaged Property, a fully executed and notarized Mortgage (an
"ADDITIONAL MORTGAGE"), in proper form for recording in all appropriate places
in all applicable jurisdictions, encumbering the interest of such Loan Party in
such Additional Mortgaged Property; and such opinions, appraisal, documents,
title insurance, surveys, environmental reports that would have been delivered
on the Closing Date if such Additional Mortgaged Property were a Closing Date
Mortgaged Property or that may be reasonably required by Administrative Agent or
Documentation Agent, together with the following:
(i) Opinions of Local Counsel. An opinion of counsel (which
counsel shall be reasonably satisfactory to Administrative Agent) in
each state in which an Additional
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Mortgaged Property is located with respect to the enforceability of the
form(s) of Additional Mortgages to be recorded in such state and such
other matters as Administrative Agent or Documentation Agent may
reasonably request, in each case in form and substance reasonably
satisfactory to Administrative Agent and Documentation Agent; and
(ii) Landlord Consents and Estoppels; Recorded Leasehold
Interests. In the case of each Additional Mortgaged Property consisting
of a Leasehold Property, the Loan Parties will use their best efforts
to provide to the Administrative Agent upon the Administrative Agent's
or Documentation Agent's request, (a) a Landlord Consent and Estoppel
with respect thereto and (b) evidence that such Leasehold Property is a
Recorded Leasehold Interest.
B. REAL ESTATE APPRAISALS. The Company shall, and shall cause
each of its Subsidiaries to, permit an independent real estate appraiser
satisfactory to Administrative Agent, upon reasonable notice, to visit and
inspect any Additional Mortgaged Property for the purpose of preparing an
appraisal of such Additional Mortgaged Property satisfying the requirements of
any applicable laws and regulations (in each case to the extent required under
such laws and regulations as determined by Administrative Agent or Documentation
Agent in the discretion of each such Agent).
6.18 CASH MANAGEMENT SYSTEMS. The Loan Parties shall, and shall cause
each of the Company's Subsidiaries to, use and maintain its Deposit Accounts and
cash management systems in a manner reasonably satisfactory to Administrative
Agent and Documentation Agent.
6.19 FURTHER INSTRUMENTS AND ACTS. The Loan Parties shall take such
action and execute, acknowledge and deliver, and cause each of the Company's
Subsidiaries to take such action and execute, acknowledge and deliver, at its
sole cost and expense, such agreements, instruments or other documents as the
Administrative Agent may require from time to time in order (i) to effect the
purposes of this Agreement and the other Loan Documents, (ii) to subject to
valid and perfected Liens on the Collateral consisting of a First Priority Liens
on the Term Primary Collateral and the Shared Collateral and a valid and
perfected Second Priority Lien on the Revolver Primary Collateral, (iii) to
establish and maintain the validity and effectiveness of any of the Loan
Documents and the validity, perfection and priority of the Liens intended to be
created thereby, and (iv) to better assure, convey, grant, assign, transfer and
confirm unto the Administrative Agent and each Lender the rights now or
hereafter intended to be granted to it under this Agreement or any other Loan
Document. In furtherance of the foregoing, to the maximum extent permitted by
applicable law, each Loan Party (i) authorizes the Administrative Agent to
execute any such agreements, instruments or other documents in such Loan Party's
name and to file such agreements, instruments or other documents in any
appropriate filing office, (ii) authorizes the Administrative Agent to file any
financing statement required hereunder or under any other Loan Document, and any
continuation statement or amendment with respect thereto, in any appropriate
filing office without the signature of such Loan Party, and (iii) ratifies the
filing of any financing statement, and any continuation statement or amendment
with respect thereto, filed without the signature of such Loan Party prior to
the date hereof.
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6.20 [INTENTIONALLY OMITTED]
6.21 COVENANTS REGARDING BOOKS AND RECORDS, INSPECTION RIGHTS,
ETC..
A. Keeping of Records and Books of Account. The Loan Parties shall, and
shall cause each of their Subsidiaries to, maintain, at all times, correct and
complete books, records, and accounts in which complete, correct, and timely
entries are made of their transactions in accordance with GAAP. The Loan Parties
shall, and shall cause each of their Subsidiaries to, by means of appropriate
entries, reflect in such accounts and in all financial statements proper
liabilities and reserves for all taxes and proper provision for depreciation and
amortization of property and bad debts, all in accordance with GAAP.
B. Inspection Rights. The Loan Parties shall, and shall cause each of
the Company's Subsidiaries to, permit any authorized representatives designated
by Administrative Agent or the Documentation Agent (but no more than twice a
year at the Company's cost and expense unless an Event of Default exists, and
for any inspection conducted at any time an Event of Default exists then at the
Company's cost and expense) to visit and inspect any of the properties of the
Loan Parties or of any of the Company's Subsidiaries, to inspect, copy and take
extracts from its and their financial and accounting records, and to discuss its
and their affairs, finances and accounts with its and their officers and
independent public accountants (provided that Company may, if it so chooses, be
present at or participate in any such discussion unless an Event of Default or
Potential Event of Default exists), all upon reasonable notice and at such
reasonable times during normal business hours and as often as may reasonably be
requested and subject to any security clearance requirements imposed by
applicable Governmental Authorities (provided, however, that at any time when an
Event of Default exists, Administrative Agent and Documentation Agent may do any
of the foregoing at any time during normal business hours and without advance
notice). Any Lender, at such Lender's sole cost and expense, may accompany
Administrative Agent on such visits and inspections.
C. Change in Collateral; Collateral Records. Each Loan Party shall, and
shall cause each of the Company's Subsidiaries to (i) give the Administrative
Agent not less than 30 days' prior written notice of any change in the location
of any Collateral, other than to locations set forth on Schedule 5.19H and with
respect to which the Administrative Agent has filed financing statements and
otherwise fully perfected its Liens thereon, (ii) advise the Administrative
Agent and Documentation Agent promptly, in sufficient detail, of any material
adverse change relating to the type, quantity or quality of the Collateral or
the Lien granted thereon, and (iii) execute and deliver, and cause each of the
Company's Subsidiaries to execute and deliver, to the Administrative Agent for
the benefit of the Lenders from time to time, solely for the Administrative
Agent's convenience in maintaining a record of Collateral, such written
statements and schedules as the Administrative Agent may reasonably require,
designating, identifying or describing the Collateral.
D. Fiscal Year. Each Loan Party shall, and shall cause the Company's
Subsidiaries to cause, the Fiscal Year their respective Fiscal Years to end on
June 30 of each calendar year unless the Administrative Agent and Documentation
Agent consent to a change in such Fiscal Year (and appropriate related changes
to this Agreement).
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E. Change in Nature of Business. No Loan Party shall, and shall not
permit any of the Company's Subsidiaries to make any change in the nature of its
business from the business being conducted on the Closing Date (which business
is described on Schedule 5.1C annexed hereto).
F. Lease Obligations. The Loan Parties shall not, and shall not permit
any of the Company's Subsidiaries to create, incur or suffer to exist any
obligations as lessee (i) for the payment of rent for any real or personal
property in connection with any Sale/Leaseback Transaction, or (ii) for the
payment of rent for any real or personal property under leases or agreements to
lease other than (A) Capital Lease Obligations otherwise expressly permitted by
this Agreement and (B) Operating Lease Obligations which would not cause the
aggregate amount of all Operating Lease Obligations owing by all Loan Parties
and the Company's Subsidiaries in any Fiscal Year to exceed $8,000,000.
G. Investments. No Loan Party shall make, and shall not permit any of
the Company's Subsidiaries to make, any Investment other than Permitted
Investments.
6.22 CONSOLIDATED CAPITAL EXPENDITURES. The Loan Parties will not
permit the Consolidated Capital Expenditures of the Company and its Subsidiaries
during any Fiscal Year of the Company to exceed the amount specified
corresponding to the applicable Fiscal Year end in the table below,
respectively, as follows:
Fiscal Year End Maximum Capital Expenditures
June 30, 2003 $15,500,000
June 30, 2004 $25,000,000
June 30, 2005
and each Fiscal Year ending thereafter $29,000,000
provided that amounts allowed during any Fiscal Year which are not utilized
during such Fiscal Year may be carried forward and utilized during any
succeeding Fiscal Year in addition to amounts otherwise allowed during any such
succeeding Fiscal Year as set forth in the preceding table.
6.23 MODIFICATIONS OF OTHER AGREEMENTS. No Loan Party shall, and shall
not permit any of the Company's Subsidiaries to (i) amend, modify or otherwise
change (or permit the amendment, modification or other change in any manner of)
(A) the Revolving Credit Agreement, the Senior Subordinated Note Indenture, the
Senior Discount Note Indenture or (B) any of the provisions of any of its
Indebtedness or of any instrument or agreement (including, without limitation,
any purchase agreement, indenture, loan agreement or security agreement)
relating to any such Indebtedness if such amendment, modification or change
would shorten the
86
final maturity or average life to maturity of, or require any payment to be made
earlier than the date originally scheduled on, such Indebtedness, would increase
the interest rate applicable to such Indebtedness, would change the
subordination provision, if any, of such Indebtedness, or would otherwise be
adverse to the Lenders or the issuer of such Indebtedness in any respect, (ii)
except for the Obligations and except as expressly permitted pursuant to
subsection 6.5, make any voluntary or optional payment, prepayment, redemption,
defeasance, sinking fund payment or other acquisition for value of any of its
Indebtedness (including, without limitation, by way of depositing money or
securities with the trustee therefor before the date required for the purpose of
paying any portion of such Indebtedness when due), or refund, refinance, replace
or exchange any other Indebtedness for any such Indebtedness, or except as
expressly required by the Revolving Credit Agreement, make any payment,
prepayment, redemption, defeasance, sinking fund payment or repurchase of any
outstanding Indebtedness as a result of any asset sale, change of control,
issuance and sale of debt or equity securities or similar event, or give any
notice with respect to any of the foregoing except prepayments of Capital Leases
or purchase money financing upon the sale or exchange of the equipment subject
thereto in an aggregate amount not to exceed $1,000,000 since the Closing Date,
(iii) except as permitted by subsection 6.11, amend, modify or otherwise change
its name, jurisdiction of organization, organizational identification number or
FEIN or (iv) amend, modify or otherwise change its certificate of incorporation
or bylaws (or other similar organizational documents), including, without
limitation, by the filing or modification of any certificate of designation, or
any agreement or arrangement entered into by it, with respect to any of its
Capital Stock (including any shareholders' agreement), or enter into any new
agreement with respect to any of its Capital Stock, except any such amendments,
modifications or changes or any such new agreements or arrangements pursuant to
this clause (iv) that either individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
6.24 REPORTING REQUIREMENTS.
A. FINANCIAL STATEMENTS. The Company shall furnish to each Agent and
each Lender:
(i) As soon as available, but in any event not later than
ninety (90) days after the close of each Fiscal Year, consolidated
audited and consolidating unaudited balance sheets and statements of
income, cash flow, and stockholders' equity for the Company and its
Subsidiaries for such Fiscal Year, and the accompanying notes thereto,
setting forth in each case in comparative form figures for the previous
Fiscal Year, all in reasonable detail, fairly presenting the financial
position and the results of operations of the Company and its
Subsidiaries as at the date thereof and for the Fiscal Year then ended,
and prepared in accordance with GAAP. Such financial statements shall
be examined in accordance with generally accepted auditing standards by
and, in the case of such financial statements prepared on a
consolidated basis, accompanied by an opinion thereon, unqualified in
any material respect, of independent certified public accountants of
national standing selected by the Company, prepared in accordance with
generally accepted auditing standards, of independent certified public
accountants of recognized standing selected by the Company (which
accountant shall be satisfactory to the Administrative Agent and
Documentation Agent) (which report shall be without (A) a
87
"going concern" or like qualification or exception, (B) any
qualification or exception as to the scope of such audit, or (C) any
qualification which relates to the treatment or classification of any
item and which, as a condition to the removal of such qualification,
would require an adjustment to such item, the effect of which would be
to cause any noncompliance with the provisions of Section 7, together
with a written statement of such accountants (1) to the effect that, in
making the examination necessary for their certification of such
financial statements, they have not obtained any knowledge of the
existence of an Event of Default with the provisions of Section 7 and
(2) if such accountants shall have obtained any knowledge of the
existence of an Event of Default, describing the nature thereof). The
Company hereby authorizes the Administrative Agent and the
Documentation Agent to communicate directly with its certified public
accountants (provided that the Company is given prior notice of, and an
opportunity to participate in, any such communication) and, by this
provision, authorizes those accountants to disclose to the
Administrative Agent and the Documentation Agent any and all financial
statements and other supporting financial documents and schedules
relating to the Company and its Subsidiaries and to discuss directly
with the Administrative Agent and the Documentation Agent the finances
and affairs of the Company and its Subsidiaries.
(ii) As soon as available, but in any event not later than
thirty (30) days after the end of each calendar month that is not the
end of a Fiscal Quarter, consolidated unaudited balance sheets of the
Company and its Subsidiaries as at the end of such month, and
consolidated unaudited statements of income and cash flow for the
Company and its Subsidiaries for such month and for the period from the
beginning of the Fiscal Year to the end of such month.
(iii) As soon as available, but in any event not later than
forty-five (45) days after the end of such Fiscal Quarter, consolidated
and consolidating unaudited balance sheets of the Company and its
Subsidiaries as at the end of such Fiscal Quarter, and consolidated and
consolidating unaudited statements of income and cash flow for the
Company and its Subsidiaries for such Fiscal Quarter and for the period
from the beginning of the Fiscal Year to the end of such Fiscal
Quarter, all in reasonable detail, fairly presenting the financial
position and results of operations of the Company and its Subsidiaries
as at the date thereof and for such periods, and, in each case, in
comparable form, figures for the corresponding period in the prior
Fiscal Year and in the Company's budget, and prepared in accordance
with GAAP (other than for presentation of footnotes and subject to
normal year-end audit adjustments) applied consistently with the
audited financial statements required to be delivered pursuant to this
Section. The Company shall certify by a certificate signed by its chief
financial officer or chief accounting officer that all such financial
statements have been prepared in accordance with GAAP and present
fairly, subject to normal year-end adjustments, the financial position
of the Company and its Subsidiaries as at the dates thereof and its
results of operations for the periods then ended.
(iv) With each of the annual audited and quarterly unaudited
financial statements delivered pursuant to this Section, a certificate
of the chief financial officer or
88
chief accounting officer of the Company a Compliance Certificate (i)
setting forth in reasonable detail the calculations required to
establish the Company's compliance with the financial covenants set
forth in Section 7 during the period covered by such financial
statements and as at the end thereof and (ii) except as explained in
reasonable detail in such certificate, (A) stating that the Loan
Parties are, at the date of such certificate, in compliance in all
material respects with all of their respective covenants and agreements
in this Agreement and the other Loan Documents, (B) stating that no
Potential Event of Default or Event of Default then exists or existed
during the period covered by such financial statements, and (C)
describing and analyzing in reasonable detail all material trends,
changes and developments in each and all such financial statements. If
such certificate discloses that a covenant has not been complied with,
or that a Potential Event of Default or Event of Default existed or
exists, such certificate shall set forth what action, if any, the Loan
Parties have taken or propose to take with respect thereto.
(v) Not more than forty-five (45) days after the end of each
Fiscal Year, three-year forecasts prepared by the Company (to include
forecasted consolidated and consolidating balance sheets and statements
of income and cash flow) for the Company and its Subsidiaries as at the
end of and for each of the following three (3) Fiscal Years and for
each calendar month of the current Fiscal Year.
B. OTHER INFORMATION.
(i) The Company will furnish, or cause to be furnished,
promptly after filing with the PBGC and the IRS or any other Government
Authority, a copy of each annual report or other filing filed with
respect to each Pension Plan, Multi-employer Plan or Foreign Plan of
any Loan Party.
(ii) The Company will furnish, or cause to be furnished,
promptly upon the filing thereof, copies of all reports, if any, to or
other documents filed by any Loan Party or any of the Company's
Subsidiaries with the SEC under the Exchange Act or any other similar
Government Authority pursuant to any requirement of law, and all
reports, notices, or statements sent or received by any Loan Party or
any of the Company's Subsidiaries to or from the holders of any equity
interests of any Loan Party or any of the Company's Subsidiaries or of
any Indebtedness of any Loan Party or any of the Company's Subsidiaries
registered under the Securities Act of 1933 or to or from the trustee
under any indenture under which the same is issued (other than routine
non-material correspondence).
(iii) The Company will furnish, or cause to be furnished, as
soon as available, but in any event not later than fifteen (15) days
after any Loan Party's or any of the Company's Subsidiaries' receipt
thereof, a copy of all management reports and management letters
prepared by any independent certified public accountants of the Company
or any of its Subsidiaries.
(iv) The Company will furnish, or cause to be furnished,
promptly after their preparation, copies of any and all proxy
statements, financial statements and report which
89
Holding Co. or any other Loan Party makes available to equity holders
or which are made available to any holder of any Indebtedness of any
Loan Party.
(v) The Company will furnish, or cause to be furnished,
concurrently with its delivery of such items to the agent under the
Revolving Credit Agreement and/or Revolving Lenders, copies of the
certificates and other information described in Section 5.2(l) of the
Revolving Credit Agreement.
C. NOTICES TO ADMINISTRATIVE AGENT AND DOCUMENTATION AGENT. The Company
shall provide written notice to Administrative Agent and the Documentation Agent
of the following matters and at the following times:
(i) As soon as possible, and in any event within three
Business Days after any officer becoming aware of any Potential Event
of Default or Event of Default;
(ii) Immediately after becoming aware of the assertion by the
holder of any Indebtedness of a Loan Party or any of their respective
Subsidiaries in excess of $2,000,000 that a default exists with respect
thereto or that any such Person is not in compliance with the terms
thereof, or the written threat or commencement by such holder of any
enforcement action because of such asserted default or non-compliance;
(iii) Immediately after becoming aware of any event or
circumstance which individually or in the aggregate could have, or has
resulted in, a Material Adverse Effect;
(iv) Immediately after becoming aware of any pending or
threatened (in writing) action, suit, proceeding, or counterclaim by
any Person, or any pending or threatened (in writing) investigation by
a Government Authority, which individually or in the aggregate, could
have, or has resulted in, a Material Adverse Effect;
(v) Immediately after becoming aware of any pending or
threatened (in writing) strike, work stoppage, unfair labor practice
claim, or other labor dispute affecting any Loan Party or any of the
Company's Subsidiaries which individually or in the aggregate, could
have, or has resulted in, a Material Adverse Effect;
(vi) Promptly after submission to any Government Authority,
all documents and information furnished to such Government Authority in
connection with any investigation of any Loan Party or any of the
Company's Subsidiaries other than routine inquiries by such Government
Authority which individually or in the aggregate, could have, or has
resulted in, a Material Adverse Effect;
(vii) Immediately after becoming aware of any violation of any
law, statute, regulation, or ordinance of a Governmental Authority
affecting any Loan Party or any of the Company's Subsidiaries which
individually or in the aggregate, could have, or has resulted in, a
Material Adverse Effect;
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(viii) Any change in any Loan Party's name as it appears in
the jurisdiction of its organization, type of entity, organizational
identification number, locations of Collateral, in each case at least
thirty (30) days prior thereto;
(ix) Within ten (10) days after any Loan Party or any ERISA
Affiliate knows or has reason to know, that an ERISA Event or a
prohibited transaction (as defined in Sections 406 of ERISA and 4975 of
the Code) has occurred, and, when known, any action taken or threatened
by the IRS or the PBGC with respect thereto;
(x) Upon request, or, in the event that such filing reflects a
significant change with respect to the matters covered thereby, within
three (3) Business Days after the filing thereof with the PBGC, the
DOL, or the IRS, as applicable, copies of the following: (i) each
annual report (form 5500 series), including Schedule B thereto, filed
with the PBGC or the IRS with respect to each Pension Plan or
Multiemployer Plan, (ii) a copy of each funding waiver request filed
with the PBGC or the IRS with respect to any Pension or Multiemployer
Plan and all communications received by any Loan Party or any ERISA
Affiliate from the PBGC or the IRS with respect to such request, and
(iii) a copy of each other filing or notice filed with the PBGC or the
IRS, with respect to each Pension Plan or Multiemployer Plan by any
Loan Party or any ERISA Affiliate (other than routine non-material
correspondence);
(xi) Upon request, copies of each actuarial report for any
Pension Plan or Multiemployer Plan and annual report for any
Multiemployer Plan, and within three (3) Business Days after receipt
thereof by any Loan Party or any ERISA Affiliate, copies of the
following: (i) any notices of the PBGC's intention to terminate a
Pension Plan or Multiemployer Plan or to have a trustee appointed to
administer such Pension Plan or Multiemployer Plan; (ii) any favorable
or unfavorable determination letter from the IRS regarding the
qualification of a Pension Plan under Section 401(a) of the Code; or
(iii) any notice from a Multiemployer Plan regarding the imposition of
withdrawal liability; and within ten (10) days after the occurrence
thereof: (i) any changes in the benefits of any existing Plan or
Foreign Plan which increase any Loan Party's annual costs with respect
thereto by an amount in excess of $1,000,000, or the establishment of
any new Plan or Foreign Plan or the commencement of contributions to
any Plan or Foreign Plan to which any Loan Party or any ERISA Affiliate
was not previously contributing; or (ii)any failure by any Loan Party
or any ERISA Affiliate to make a required installment or any other
required payment to any Plan or Foreign Plan in excess of $1,000,000
under Section 412 of the Code on or before the due date for such
installment or payment;
(xii) Within ten (10) days after any Loan Party or any ERISA
Affiliate knows or has reason to know that any of the following events
has occurred or will occur: (i) a Multi-employer Plan has been or will
be terminated; (ii) the administrator or plan sponsor of a
Multi-employer Plan intends to terminate a Multi-employer Plan; or
(iii) the PBGC has instituted or will institute proceedings under
Section 4042 of ERISA to terminate a Multi-employer Plan;
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(xiii) Promptly upon becoming aware of an event or anticipated
development which could constitute or result in a default or an event
of default under any of the Revolving Credit Agreement, the Senior
Subordinated Note Indenture or the Senior Discount Note Indenture;
(xiv) Immediately upon commencement of any proceedings
contesting any tax, fee, assessment, or other governmental charge in
excess of $2,000,000;
(xv) Promptly upon becoming aware that any material assumption
on which the Loan Parties prepared and presented the latest financial
projections delivered to Administrative Agent and the Lenders is no
longer valid;
(xvi) At least ten Business Days before the proposed
Incurrence of any Subordinated Indebtedness, a description of the
proposed Subordinated Indebtedness and the purchaser thereof, and
copies of all agreements, instruments and other documents to be
executed in connection therewith;
(xvii) Promptly and in any event not more than five Business
Days after any prepayment, redemption or repurchase of Senior
Subordinated Notes, written notice thereof (including, without
limitation, the date of such prepayment, redemption or repurchase and
the total consideration paid in respect thereof), together with an
Officer's Certificate, certifying (in reasonable detail) that such
prepayment, redemption or repurchase was in full compliance with the
provisions of subsection 6.5B(vii); and
(xviii) Promptly upon request, such other information
concerning the condition or operations, financial or otherwise, of any
Loan Party as any Agent may from time to time may reasonably request.
D. As soon as possible and in any event within 5 days after execution,
receipt or delivery thereof, copies of any material notices that any Loan Party
executes or receives in connection with any Material Contract; and
E. As soon as possible and in any event within 5 days after execution,
receipt or delivery thereof, copies of any material notices that any Loan Party
executes or receives in connection with the sale or other disposition of the
Capital Stock of, or all or substantially all of the assets of, any Loan Party.
6.25 POST CLOSING COVENANTS.
A. Intellectual Property Filings. On or before the date that is ten
(10) days after the Closing Date, the Company shall provide Administrative Agent
and Documentation Agent with evidence reasonably satisfactory to each of them of
the filing with the United States Patent and Trademark Office (the "USPTO"), and
other official offices designated by Administrative Agent or Documentation
Agent, of a conversion certificate evidencing the conversion of Texas
Petrochemicals Corporation to
Texas Petrochemicals LP, and the recordation of
such certificate against all registered trademark and service ▇▇▇▇ registrations
and applications, and patents and
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patent applications for which the owner of record is Texas Petrochemicals
Corporation. The Company shall do all further acts and deliver all further
documentation reasonably requested by Administrative Agent or Documentation
Agent to ensure that the Company's ownership of the foregoing registrations and
applications is properly reflected in the records of the USPTO.
B. Certificate of Title. On or before the date that is ten (10) days
after the Closing Date, the Company shall deliver to Administrative Agent and or
cause to be filed all documents necessary to create a First Priority perfected
security interest in that certain fire truck recently purchased by the Company.
C. Warehouse/Licensor/Bailee Waivers. On or before the date that is
sixty (60) days after the date the Administrative Agent provides the Company
with the required form, the Company shall use its commercially reasonable
efforts to deliver to Administrative Agent collateral access agreements and/or
warehouse, licensor or bailee waivers, as applicable, for each of the locations
at which inventory is stored described on Schedule 3(d) of the Company's
perfection certificate, other than the Company's headquarters at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ and the leasehold property located in Lake Charles, Louisiana, in each
case in form and substance reasonably satisfactory to Administrative Agent and
Documentation Agent.
SECTION 7. FINANCIAL COVENANTS
7.1 FIXED CHARGE COVERAGE RATIO. The Loan Parties will not permit the
Fixed Charge Coverage Ratio, determined for the Company and its Subsidiaries on
a consolidated basis as of the end of each Fiscal Quarter, commencing with the
Fiscal Quarter ending December 31, 2002 and continuing for each Fiscal Quarter
ending thereafter, to be less than the ratio specified for such period below:
FISCAL QUARTER END FIXED CHARGE COVERAGE RATIO
December 31, 2002 and March 31, 2003 0.95 to 1.00
June 30, 2003 and each Fiscal Quarter 1.00 to 1.00
thereafter
7.2 SENIOR SECURED LEVERAGE RATIO. The Company shall not permit its
ratio of Senior Secured Indebtedness to Adjusted EBITDA for the four full Fiscal
Quarters most recently ended to exceed 2.25 to 1.0 as of the last day of any
Fiscal Quarter of the Company. For purposes of this calculation, if during any
period of four Fiscal Quarters the Company or any of its Subsidiaries acquires
any Person (or any interest in any Person) or all or substantially all of the
assets of any Person, the Adjusted EBITDA attributable to such assets or an
amount equal to the percentage of ownership of the Company in such Person times
the Adjusted EBITDA of such Person, for such period determined on a pro forma
basis (which determination, in each case, shall be subject to approval of the
Administrative Agent, not to be unreasonably withheld) may be included as
Adjusted EBITDA for such period; provided that during the portion of such period
that follows such acquisition, the computation in respect of the Adjusted EBITDA
of such
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Person or such assets, as the case may be, shall be made on the basis of actual
(rather than pro forma) results.
SECTION 8. EVENTS OF DEFAULT
If any of the following conditions or events ("EVENTS OF
DEFAULT") shall occur:
8.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure by the Company to pay any installment of principal or
interest on the Loan or failure by the Company to pay any fee or any other
amount due under this Agreement or any other Loan Document when due, whether at
stated maturity, by acceleration, by notice of voluntary prepayment, by
mandatory prepayment or otherwise; or
8.2 DEFAULT IN OTHER AGREEMENTS.
(i) Failure of any Loan Party or any of the Company's
Subsidiaries to pay when due any principal of or interest on or any
other amount payable in respect of one or more items of Indebtedness
(other than Indebtedness referred to in subsection 8.1) or Contingent
Obligations in an individual principal amount of $2,000,000 or more or
with an aggregate principal amount of $2,000,000 or more, in each case
beyond the end of any grace period provided therefor; or
(ii) breach or default by any Loan Party or any of the
Company's Subsidiaries with respect to any other term of (a) one or
more items of Indebtedness or Contingent Obligations in the individual
or aggregate principal amounts referred to in clause (i) above or (b)
any loan agreement, mortgage, indenture or other agreement relating to
such item(s) of Indebtedness or Contingent Obligation(s), if the effect
of such breach or default is to cause, or to permit the holder or
holders of that Indebtedness or Contingent Obligation(s) (or a trustee
on behalf of such holder or holders) to cause, that Indebtedness or
Contingent Obligation(s) to become or be declared due and payable prior
to its stated maturity or the stated maturity of any underlying
obligation, as the case may be (upon the giving or receiving of notice,
lapse of time, both, or otherwise); or
(iii) one or more items of Indebtedness or Contingent
Obligations in the individual or aggregate principal amounts referred
to in clause (i) above shall be declared to be due and payable, or
required to be prepaid (other than by a regularly scheduled required
prepayment), redeemed, purchased or defeased or an offer to prepay,
redeem, purchase or defease such Indebtedness shall be required to be
made, in each case, prior to the stated maturity thereof; or
(iv) an "Event of Default" (as such term is defined therein)
occurs under the Revolving Credit Agreement, the Senior Subordinated
Note Indenture or the Senior Discount Note Indenture.
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8.3 BREACH OF CERTAIN COVENANTS.
Failure of any Loan Party to perform or comply with any term
or condition contained in subsection 2.4B, 2.5, 6.3 through 6.11, inclusive,
6.16, 6.22, 6.23, 6.25 or Section 7 of this Agreement or any of the negative
covenants contained in any of the other Loan Documents; or
8.4 BREACH OF WARRANTY.
Any representation, warranty, certification or other statement
made or deemed made by or on behalf of any Loan Party or any of the Company's
Subsidiaries in any Loan Document or in any statement or certificate at any time
given by any Loan Party or any of the Company's Subsidiaries in writing pursuant
hereto or thereto or in connection herewith or therewith shall be incorrect in
any material respect on the date as of which made or deemed made; or
8.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS.
Any Loan Party shall default in the performance of or
compliance with any term contained in this Agreement or any of the other Loan
Documents, other than any such term referred to in any other subsection of this
Section 8, and such default shall continue for more than 15 days; or
8.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC..
(i) A court shall enter a decree or order for relief in
respect of any Loan Party or any of the Company's Subsidiaries in an
involuntary case under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in
effect, which decree or order is not stayed; or any other similar
relief shall be granted under any applicable federal or state law; or
(ii) An involuntary case shall be commenced against any Loan
Party or any of the Company's Subsidiaries under the Bankruptcy Code or
under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver,
liquidator, sequestrator, trustee, custodian or other officer having
similar powers over any Loan Party or any of the Company's
Subsidiaries, or over all or a substantial part of its property, shall
have been entered; or there shall have occurred the involuntary
appointment of an interim receiver, trustee or other custodian of any
Loan Party or any of the Company's Subsidiaries for all or a
substantial part of its property; or a warrant of attachment, execution
or similar process shall have been issued against any substantial part
of the property of any Loan Party or any of the Company's Subsidiaries,
and any such event described in this clause (ii) shall continue for 60
days without being dismissed, bonded or discharged; or
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8.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC..
(i) Any Loan Party or any of the Company's Subsidiaries shall
have an order for relief entered with respect to it or commence a
voluntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, or
shall consent to the entry of an order for relief in an involuntary
case, or to the conversion of an involuntary case to a voluntary case,
under any such law, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a
substantial part of its property; or any Loan Party or any of the
Company's Subsidiaries shall make any assignment for the benefit of
creditors; or
(ii) Any Loan Party or any of the Company's Subsidiaries shall
be unable, or shall fail generally, or shall admit in writing its
inability, to pay its debts as such debts become due; or the Governing
Body of any Loan Party or any of the Company's Subsidiaries (or any
committee thereof) shall adopt any resolution or otherwise authorize
any action to approve any of the actions referred to in clause (i)
above or this clause (ii); or
8.8 JUDGMENTS AND ATTACHMENTS.
Any money judgment, writ or warrant of attachment or similar
process involving (i) in any individual case an amount in excess of $2,000,000
or (ii) in the aggregate at any time an amount in excess of $2,000,000 (in
either case not adequately covered by insurance as to which a solvent and
unaffiliated insurance company has acknowledged coverage) shall be entered or
filed against any Loan Party or any of the Company's Subsidiaries or any of
their respective assets and shall remain undischarged, unvacated, unbonded or
unstayed for a period of 30 days (or in any event later than five days prior to
the date of any proposed sale thereunder); or
8.9 DISSOLUTION.
Any Loan Party shall file a certificate of dissolution under
any law or shall be liquidated, dissolved or wound-up or shall commence or have
commenced against it any action or proceeding for dissolution, winding-up, or
liquidation or shall take any corporate action in furtherance of the foregoing;
or
8.10 EMPLOYEE BENEFIT PLANS.
There shall occur one or more ERISA Events that individually
or in the aggregate results in or might reasonably be expected to result in
liability of the Company, any of its Subsidiaries or any of their respective
ERISA Affiliates in excess of $2,000,000 during the term of this Agreement; or
there shall exist an amount of unfunded benefit liabilities (as defined in
Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension
Plans (excluding for purposes of such computation any Pension Plans with respect
to which assets exceed benefit liabilities), which exceeds $2,000,000 or any
distribution to participants under the ESOP that has or could reasonably be
expected to have a Material Adverse Effect on the Company or any of its
Subsidiaries; or
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8.11 CHANGE OF CONTROL.
A Change of Control shall have occurred; or
8.12 INVALIDITY OF LOAN DOCUMENTS; FAILURE OF SECURITY; REPUDIATION
OF OBLIGATIONS.
At any time after the execution and delivery thereof, (i) any
Loan Document or any provision thereof, for any reason other than the
satisfaction in full of all Obligations, shall cease to be in full force and
effect (other than in accordance with its terms) or shall be declared to be null
and void, (ii) Administrative Agent shall not have or shall cease to have a
valid and perfected First Priority Lien in any Term Primary Collateral or Shared
Collateral with a fair market value of $2,000,000 or more purported to be
covered by the Collateral Documents or a valid and perfected Second Priority
Lien in any Revolver Primary Collateral with a fair market value of $2,000,000
or more; or (iii) the validity or enforceability of any Loan Document shall be
contested by any party thereto, or a proceeding shall be commenced by any Loan
Party or any Government Authority having jurisdiction over any of them, seeking
to establish the invalidity or unenforceability thereof, or any Loan Party shall
deny in writing that it has any liability or obligation purported to be created
under any Loan Document; or
8.13 CONDUCT OF BUSINESS BY HOLDING CO., GP PARENT AND LIMITED
PARTNER.
GP Parent or Limited Partner (i) shall engage in any business
other than as a partner in the Company (and in the case of GP Parent, the sole
shareholder of Limited Partner) and entering into and performing its obligations
under and in accordance with the Loan Documents and Related Agreements to which
it is a party or (ii) own any assets other than (a) the Capital Stock of the
Company and (b) cash and Cash Equivalents in an amount not to exceed $750,000 at
any one time for the purpose of paying general operating expenses of GP Parent
and Limited Partner; or Holding Co. (i) shall engage in any business other than
as a shareholder of GP Parent, Limited Partner and the Unrestricted Subsidiaries
and entering into and performing its obligations under and in accordance with
the Loan Documents and Related Agreements to which it is a party or (ii) own any
assets (other than cash or Cash Equivalents) other than the Capital Stock of GP
Parent, Limited Partner and the Unrestricted Subsidiaries; or
8.14 INJUNCTIONS.
Any Loan Party or any of the Company's Subsidiaries is
enjoined, restrained or in any way prevented by the order of any court or any
Government Authority from conducting all or any material part of its business
for more than fifteen (15) days; or
8.15 MATERIAL DAMAGE, CESSATION OF BUSINESS, LOSS OF LICENSE ETC.
A. Material Damage. Any material damage to, or loss, theft or
destruction of, any Collateral, whether or not insured, or any strike, lockout,
labor dispute, embargo, condemnation, act of God or public enemy, or other
casualty which causes, for more than fifteen (15) consecutive days, the
cessation or substantial curtailment of revenue producing activities at any
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facility of any Loan Party, if any such event or circumstance, individually or
in the aggregate, could reasonably be expected to result in a Material Adverse
Effect; or
B. Cessation of Business. Any cessation of a substantial part of the
business of the Company or any of its Subsidiaries for a period which materially
and adversely affects the ability of such Person to continue its business on a
profitable basis; or
C. Loss of License. The loss, suspension or revocation of, or failure
to renew, any license or permit now held or hereafter acquired by the Loan
Parties or any of the Company's Subsidiaries, if such loss, suspension,
revocation or failure to renew could reasonably be expected to have a Material
Adverse Effect; or
D. Indictment. The indictment, or the threatened indictment of any Loan
Party or any of the Company's Subsidiaries under any criminal statute, or
commencement or threatened commencement of criminal or civil proceedings against
any Loan Party, pursuant to which statute or proceedings the penalties or
remedies sought or available include forfeiture to any Government Authority of
any material portion of the property of such Person; or
E. Environmental Liabilities. Any Loan Party or any of the Company's
Subsidiaries shall be liable for any Environmental Claims, the payment of which
could reasonably be expected to have a Material Adverse Effect; or
F. Material Adverse Effect. An event or development occurs which
individually or in the aggregate could reasonably be expected to have a Material
Adverse Effect.
THEN (i) upon the occurrence of any Event of Default described in subsection 8.6
or 8.7, each of (a) the unpaid principal amount of and accrued interest on the
Loans, and (b) all other Obligations shall automatically become immediately due
and payable, without presentment, demand, protest or other requirements of any
kind, all of which are hereby expressly waived by the Company, and the
obligation of each Lender to make any Loan, shall thereupon terminate, and (ii)
upon the occurrence and during the continuation of any other Event of Default,
Administrative Agent shall, upon the written request or with the written consent
of Requisite Lenders, by written notice to the Company, declare all or any
portion of the amounts described in clauses (a) and (b) above to be, and the
same shall forthwith become, immediately due and payable, and the obligation of
each Lender to make any Loan shall thereupon terminate.
SECTION 9. ADMINISTRATIVE AGENT
9.1 APPOINTMENT.
A. APPOINTMENT OF ADMINISTRATIVE AGENT AND DOCUMENTATION
AGENT. (i) CSFB is hereby appointed Administrative Agent hereunder and under the
other Loan Documents. Each Lender hereby authorizes Administrative Agent to act
as its agent in accordance with the terms of this Agreement and the other Loan
Documents. Administrative
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Agent agrees to act upon the express conditions contained in this Agreement and
the other Loan Documents, as applicable. The provisions of this Section 9 are
solely for the benefit of Administrative Agent and Lenders and no Loan Party
shall have rights as a third party beneficiary of any of the provisions thereof.
In performing its functions and duties under this Agreement, Administrative
Agent (other than as provided in subsection 2.1D) shall act solely as an agent
of Lenders and does not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or for Company or any
other Loan Party. (ii) Regiment Capital Advisors, LLC is hereby appointed
Documentation Agent hereunder and under the other Loan Documents. Each Lender
hereby authorizes Documentation Agent to act as its agent in accordance with the
terms of this Agreement and the other Loan Documents. Documentation Agent agrees
to act upon the express conditions contained in this Agreement and the other
Loan Documents, as applicable. The provisions of this Section 9 are solely for
the benefit of Documentation Agent and Lenders and no Loan Party shall have
rights as a third party beneficiary of any of the provisions thereof. In
performing its functions and duties under this Agreement, Documentation Agent
(other than as provided in subsection 2.1D) shall act solely as an agent of
Lenders and does not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or for Company or any
other Loan Party.
B. APPOINTMENT OF SUPPLEMENTAL COLLATERAL AGENTS. It is the
purpose of this Agreement and the other Loan Documents that there shall be no
violation of any law of any jurisdiction denying or restricting the right of
banking corporations or associations to transact business as agent or trustee in
such jurisdiction. It is recognized that in case of litigation under this
Agreement or any of the other Loan Documents, and in particular in case of the
enforcement of any of the Loan Documents, or in case Administrative Agent deems
that by reason of any present or future law of any jurisdiction it may not
exercise any of the rights, powers or remedies granted herein or in any of the
other Loan Documents or take any other action which may be desirable or
necessary in connection therewith, it may be necessary that Administrative Agent
appoint an additional individual or institution as a separate trustee,
co-trustee, collateral agent or collateral co-agent (any such additional
individual or institution being referred to herein individually as a
"SUPPLEMENTAL COLLATERAL AGENT" and collectively as "SUPPLEMENTAL COLLATERAL
AGENTS").
In the event that Administrative Agent appoints a Supplemental
Collateral Agent with respect to any Collateral, (i) each and every right,
power, privilege or duty expressed or intended by this Agreement or any of the
other Loan Documents to be exercised by or vested in or conveyed to
Administrative Agent with respect to such Collateral shall be exercisable by and
vest in such Supplemental Collateral Agent to the extent, and only to the
extent, necessary to enable such Supplemental Collateral Agent to exercise such
rights, powers and privileges with respect to such Collateral and to perform
such duties with respect to such Collateral, and every covenant and obligation
contained in the Loan Documents and necessary to the exercise or performance
thereof by such Supplemental Collateral Agent shall run to and be enforceable by
either Administrative Agent or such Supplemental Collateral Agent, and (ii) the
provisions of this Section 9 and of subsections 10.2 and 10.3 that refer to
Administrative
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Agent shall inure to the benefit of such Supplemental Collateral Agent and all
references therein to Administrative Agent shall be deemed to be references to
Administrative Agent and/or such Supplemental Collateral Agent, as the context
may require.
Should any instrument in writing from the Company or any other
Loan Party be required by any Supplemental Collateral Agent so appointed by
Administrative Agent for more fully and certainly vesting in and confirming to
him or it such rights, powers, privileges and duties, the Company shall, or
shall cause such Loan Party to, execute, acknowledge and deliver any and all
such instruments promptly upon request by Administrative Agent. In case any
Supplemental Collateral Agent, or a successor thereto, shall die, become
incapable of acting, resign or be removed, all the rights, powers, privileges
and duties of such Supplemental Collateral Agent, to the extent permitted by
law, shall vest in and be exercised by Administrative Agent until the
appointment of a new Supplemental Collateral Agent.
9.2 POWERS AND DUTIES; GENERAL IMMUNITY.
▇. ▇▇▇▇▇▇; DUTIES SPECIFIED. (i) Each Lender irrevocably
authorizes Administrative Agent to take such action on such Lender's behalf and
to exercise such powers, rights and remedies hereunder and under the other Loan
Documents as are specifically delegated or granted to Administrative Agent by
the terms hereof and thereof, together with such powers, rights and remedies as
are reasonably incidental thereto. Administrative Agent shall have only those
duties and responsibilities that are expressly specified in this Agreement and
the other Loan Documents. Administrative Agent may exercise such powers, rights
and remedies and perform such duties by or through its agents or employees.
Administrative Agent shall not have, by reason of this Agreement or any of the
other Loan Documents, a fiduciary relationship in respect of any Lender or
Company or any other Loan Party; and nothing in this Agreement or any of the
other Loan Documents, expressed or implied, is intended to or shall be so
construed as to impose upon Administrative Agent any obligations in respect of
this Agreement or any of the other Loan Documents except as expressly set forth
herein or therein. (ii) Each Lender irrevocably authorizes Documentation Agent
to take such action on such Lender's behalf and to exercise such powers, rights
and remedies hereunder and under the other Loan Documents as are specifically
delegated or granted to Documentation Agent by the terms hereof and thereof,
together with such powers, rights and remedies as are reasonably incidental
thereto. Documentation Agent shall have only those duties and responsibilities
that are expressly specified in this Agreement and the other Loan Documents.
Documentation Agent may exercise such powers, rights and remedies and perform
such duties by or through its agents or employees. Documentation Agent shall not
have, by reason of this Agreement or any of the other Loan Documents, a
fiduciary relationship in respect of any Lender or Company or any other Loan
Party; and nothing in this Agreement or any of the other Loan Documents,
expressed or implied, is intended to or shall be so construed as to impose upon
Documentation Agent any obligations in respect of this Agreement or any of the
other Loan Documents except as expressly set forth herein or therein.
B. NO RESPONSIBILITY FOR CERTAIN MATTERS. No Agent shall be
responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement or any
other Loan Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral
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statements or in any financial or other statements, instruments, reports or
certificates or any other documents furnished or made by such Agent to Lenders
or by or on behalf of the Company or any other Loan Party to such Agent or any
Lender in connection with the Loan Documents and the transactions contemplated
thereby or for the financial condition or business affairs of the Company or any
other Loan Party or any other Person liable for the payment of any Obligations,
nor shall such Agent be required to ascertain or inquire as to the performance
or observance of any of the terms, conditions, provisions, covenants or
agreements contained in any of the Loan Documents or as to the use of the
proceeds of the Loans or as to the existence or possible existence of any Event
of Default or Potential Event of Default. Anything contained in this Agreement
to the contrary notwithstanding, Administrative Agent shall not have any
liability arising from confirmations of the amount of outstanding Loans.
C. EXCULPATORY PROVISIONS. No Agent or any of its officers,
directors, employees or agents shall be liable to Lenders for any action taken
or omitted by such Agent under or in connection with any of the Loan Documents
except to the extent caused by such Agent's gross negligence or willful
misconduct. An Agent shall be entitled to refrain from any act or the taking of
any action (including the failure to take an action) in connection with this
Agreement or any of the other Loan Documents or from the exercise of any power,
discretion or authority vested in it hereunder or thereunder unless and until
such Agent shall have received instructions in respect thereof from Requisite
Lenders (or such other Lenders as may be required to give such instructions
under subsection 10.6) and, upon receipt of such instructions from Requisite
Lenders (or such other Lenders, as the case may be), such Agent shall be
entitled to act or (where so instructed) refrain from acting, or to exercise
such power, discretion or authority, in accordance with such instructions.
Without prejudice to the generality of the foregoing, (i) each Agent shall be
entitled to rely, and shall be fully protected in relying, upon any
communication, instrument or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and shall be
entitled to rely and shall be protected in relying on opinions and judgments of
attorneys (who may be attorneys for Company and its Subsidiaries), accountants,
experts and other professional advisors selected by it; and (ii) no Lender shall
have any right of action whatsoever against an Agent as a result of such Agent
acting or (where so instructed) refraining from acting under this Agreement or
any of the other Loan Documents in accordance with the instructions of Requisite
Lenders (or such other Lenders as may be required to give such instructions
under subsection 10.6).
D. AGENTS ENTITLED TO ACT AS LENDER. The agency hereby created
shall in no way impair or affect any of the rights and powers of, or impose any
duties or obligations upon, an Agent in its individual capacity as a Lender
hereunder. With respect to its participation in the Loans, an Agent shall have
the same rights and powers hereunder as any other Lender and may exercise the
same as though it were not performing the duties and functions delegated to it
hereunder, and the term "Lender" or "Lenders" or any similar term shall, unless
the context clearly otherwise indicates, include each Agent in its individual
capacity. An Agent and its Affiliates may accept deposits from, lend money to,
acquire equity interests in and generally engage in any kind of commercial
banking, investment banking, trust, financial advisory or other business with
Company or any of its Affiliates as if it were not performing the duties
specified herein, and may accept fees and other consideration from the Company
for services in
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connection with this Agreement and otherwise without having to account for the
same to Lenders.
9.3 INDEPENDENT INVESTIGATION BY LENDERS; NO RESPONSIBILITY FOR
APPRAISAL OF CREDITWORTHINESS.
Each Lender agrees that it has made its own independent
investigation of the financial condition and affairs of the Company and its
Subsidiaries in connection with the making of the Loans hereunder and that it
has made and shall continue to make its own appraisal of the creditworthiness of
the Company and its Subsidiaries. No Agent shall have any duty or
responsibility, either initially or on a continuing basis, to make any such
investigation or any such appraisal on behalf of Lenders or to provide any
Lender with any credit or other information with respect thereto, whether coming
into its possession before the making of the Loans or at any time or times
thereafter (provided that, Administrative Agent shall provide to Lenders such
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, and upon the reasonable request
of a Lender, the Administrative Agent shall provide to such Lender any documents
or reports delivered to the Administrative Agent by the Loan Parties pursuant to
the terms of this Agreement or any other Loan Document), and no Agent shall have
any responsibility with respect to the accuracy of or the completeness of any
information provided to Lenders.
9.4 RIGHT TO INDEMNITY.
To the extent an Agent is not reimbursed by the Loan Parties,
each Lender, in proportion to its Pro Rata Share, severally agrees to indemnify
Agents and their respective officers, directors, employees, agents, attorneys,
professional advisors and Affiliates to the extent that any such Person shall
not have been reimbursed by the Company or any other Loan Party, for and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including counsel fees and disbursements and
fees and disbursements of any financial advisor engaged by Agents) or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against an Agent or and other such Persons in exercising the
powers, rights and remedies of an Agent or performing duties of an Agent
hereunder or under the other Loan Documents or otherwise in its capacity as
Agent in any way relating to or arising out of this Agreement or the other Loan
Documents; provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of an Agent resulting solely from such Agent's
gross negligence or willful misconduct as determined by a final judgment of a
court of competent jurisdiction. If any indemnity furnished to an Agent or any
other such Person for any purpose shall, in the opinion of such Agent, be
insufficient or become impaired, such Agent may call for additional indemnity
and cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished.
9.5 SUCCESSOR ADMINISTRATIVE AGENT.
Any Agent may resign at any time by giving 30 days' prior
written notice thereof to Lenders and Company. Upon any such notice of
resignation, Requisite Lenders shall have the
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right, upon five Business Days' notice to the Company, to appoint a successor
Administrative Agent. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, that successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent and
the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's resignation
hereunder as an Agent, the provisions of this Section 9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was an
Agent under this Agreement.
9.6 COLLATERAL DOCUMENTS AND PARENT GUARANTY.
Each Lender hereby further authorizes Administrative Agent, on
behalf of and for the benefit of Lenders, to enter into each Collateral Document
as secured party and to be the agent for and representative of Lenders under the
Parent Guaranty, and each Lender agrees to be bound by the terms of each
Collateral Document and Parent Guaranty; provided that Administrative Agent
shall not (i) enter into or consent to any amendment, modification, termination
or waiver of any provision contained in any Collateral Document or Parent
Guaranty or (ii) release all or any portion of the Collateral (except as
otherwise expressly permitted or required pursuant to the terms of this
Agreement or the applicable Collateral Document), in each case without the prior
consent of Requisite Lenders (or, if required pursuant to subsection 10.6, all
Lenders); provided further, however, that, without further written consent or
authorization from Lenders, Administrative Agent may execute any documents or
instruments necessary to (a) release any Lien encumbering any item of Collateral
that is the subject of a sale or other disposition of assets permitted by this
Agreement or to which Requisite Lenders have otherwise consented, or (b)
subordinate the Liens of Administrative Agent, on behalf of Lenders, to any
Permitted Encumbrances; provided that, in the case of a sale of such item of
Collateral or stock referred to in subdivision (a), the requirements of
subsection 10.14 are satisfied. Anything contained in any of the Loan Documents
to the contrary notwithstanding, the Company, Administrative Agent and each
Lender hereby agree that (1) no Lender shall have any right individually to
realize upon any of the Collateral under any Collateral Document or to enforce
the Parent Guaranty, it being understood and agreed that all powers, rights and
remedies under the Collateral Documents and the Parent Guaranty may be exercised
solely by Administrative Agent for the benefit of Lenders in accordance with the
terms thereof, and (2) in the event of a foreclosure by Administrative Agent on
any of the Collateral pursuant to a public or private sale, Administrative Agent
or any Lender may be the purchaser of any or all of such Collateral at any such
sale and Administrative Agent, as agent for and representative of Lenders (but
not any Lender or Lenders in its or their respective individual capacities
unless Requisite Lenders shall otherwise agree in writing) shall be entitled,
for the purpose of bidding and making settlement or payment of the purchase
price for all or any portion of the Collateral sold at any such public sale, to
use and apply any of the Obligations as a credit on account of the purchase
price for any collateral payable by Administrative Agent at such sale.
9.7 DUTIES OF OTHER AGENTS.
To the extent any other Lender is identified in this Agreement
as a "co-agent", "documentation", or "syndication" agent, except as otherwise
expressly provided herein such
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Lender shall not have any right, power, obligation, liability, responsibility or
duty under this Agreement other than those applicable to all Lenders as such.
Without limiting the foregoing, none of such Lenders shall have or be deemed to
have a fiduciary relationship with any Lender.
9.8 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to any Loan Party or any of the Company's
Subsidiaries, Administrative Agent (irrespective of whether the principal of any
Loan shall then be due and payable as herein expressed or by declaration or
otherwise and irrespective of whether Administrative Agent shall have made any
demand on Company) shall be entitled and empowered, by intervention in such
proceeding or otherwise
(i) to file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of the Loans and any
other Obligations that are owing and unpaid and to file such other
papers or documents as may be necessary or advisable in order to have
the claims of Lenders and Agents (including any claim for the
reasonable compensation, expenses, disbursements and advances of
Lenders and Agents and their agents and counsel and all other amounts
due Lenders and Agents under subsections 2.3 and 10.2) allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to Administrative Agent and, if Administrative
Agent shall consent to the making of such payments directly to Lenders, to pay
to Lenders any amount due for the reasonable compensation, expenses,
disbursements and advances of Agents and their agents and counsel, and any other
amounts due Agents under subsections 2.3 and 10.2.
Nothing herein contained shall be deemed to authorize
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lenders or to authorize
Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.
Each Lender hereby appoints the Administrative Agent and each
other Agent and Lender as agent and bailee for the purpose of perfecting the
security interests in and liens upon the Collateral in assets which, in
accordance with Article 9 of the UCC, can be perfected only by possession or
control (or where the security interest of a secured party with possession or
control has priority over the security interest of another secured party) and
each Agent and each Lender hereby acknowledges that it holds possession of or
otherwise controls any such Collateral for the benefit of the Agents and the
Lenders as secured party. Should any Lender obtain possession or control of any
such Collateral, such Lender shall notify the Administrative Agent thereof, and,
promptly upon the Administrative Agent's request therefor shall deliver such
Collateral to the
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Administrative Agent or in accordance with the Administrative Agent's
instructions. Each Loan Party by its execution and delivery of this Agreement
hereby consents to the foregoing.
SECTION 10. MISCELLANEOUS
10.1 SUCCESSORS AND ASSIGNS; ASSIGNMENTS AND PARTICIPATIONS IN
LOANS .
A. GENERAL. This Agreement shall be binding upon the parties
hereto and their respective successors and assigns and shall inure to the
benefit of the parties hereto and the successors and assigns of Lenders (it
being understood that Lenders' rights of assignment are subject to the further
provisions of this subsection 10.1). None of the Loan Parties' rights or
obligations hereunder nor any interest therein may be assigned or delegated by
any Loan Party without the prior written consent of all Lenders (and any
attempted assignment or transfer by any Loan Party without such consent shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Affiliates of each of Administrative Agent and Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.
B. ASSIGNMENTS.
(i) Amounts and Terms of Assignments. Any Lender may assign to
one or more Eligible Assignees all or any portion of its rights and
obligations under this Agreement; provided that (a), except (1) in the
case of an assignment of the entire remaining amount of the assigning
Lender's rights and obligations under this Agreement or (2) in the case
of an assignment to a Lender or an Affiliate of a Lender or an Approved
Fund of a Lender, the aggregate amount of the Term Loan Exposure of the
assigning Lender and the assignee subject to each such assignment shall
not be less than $1,000,000, unless each of Administrative Agent and,
so long as no Event of Default has occurred and is continuing, the
Company otherwise consents each such consent not to be unreasonably
withheld or delayed), (b) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights
and obligations under this Agreement with respect to the Loan or the
Commitment assigned, (c) the parties to each assignment shall execute
and deliver to Administrative Agent an Assignment Agreement, together
with a processing and recordation fee of $3,500, at Administrative
Agent's discretion (unless the assignee is already a Lender, an
Affiliate or an Approved Fund of the assignor, in which case no fee
shall be required), and the Eligible Assignee, if it is not already a
party to this Agreement, shall deliver to Administrative Agent
information reasonably requested by Administrative Agent, including an
administrative questionnaire and such forms, certificates or other
evidence, if any, with respect to United States federal income tax
withholding matters as the assignee under such Assignment Agreement may
be required to deliver to Administrative Agent pursuant to subsection
2.7B(iii) and with respect to information requested under the Patriot
Act and (d), except in the case of an assignment to another Lender, an
Affiliate of a Lender or an Approved Fund of a Lender, Administrative
Agent and, if no Event of Default has occurred and is continuing, the
Company, shall have consented thereto
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(which consent shall not be unreasonably withheld). Upon such
acceptance and recording by Administrative Agent pursuant to clause
(ii) below, from and after the effective date specified in such
Assignment Agreement, (y) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment Agreement, shall have
the rights and obligations of a Lender hereunder and (z) the assigning
Lender thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment
Agreement, relinquish its rights (other than any rights which survive
the termination of this Agreement under subsection 10.9B) and be
released from its obligations under this Agreement (and, in the case of
an Assignment Agreement 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. The assigning Lender shall,
upon the effectiveness of such assignment or as promptly thereafter as
practicable, surrender its Notes, if any, to Administrative Agent for
cancellation, and thereupon new Notes shall be issued to the assignee
and/or to the assigning Lender, substantially in the form of Exhibit II
annexed hereto, as the case may be, with appropriate insertions, to
reflect the new Commitments and/or outstanding Term Loans of the
assignee and/or the assigning Lender. Other than as provided in
subsection 2.1A(iv) and subsection 10.5, any assignment or transfer by
a Lender of rights or obligations under this Agreement that does not
comply with this subsection 10.1B 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 subsection 10.1C.
(ii) Acceptance by Administrative Agent; Recordation in
Register. Upon its receipt of an Assignment Agreement executed by an
assigning Lender and an assignee representing that it is an Eligible
Assignee, together with the processing and recordation fee referred to
in subsection 10.1B(i) and any forms, certificates or other evidence
with respect to United States federal income tax withholding matters
that such assignee may be required to deliver to Administrative Agent
pursuant to subsection 2.7B(iii), Administrative Agent shall, if
Administrative Agent and Company have consented to the assignment
evidenced thereby (in each case to the extent such consent is required
pursuant to subsection 10.1B(i)), (a) accept such Assignment Agreement
by executing a counterpart thereof as provided therein (which
acceptance shall evidence any required consent of Administrative Agent
to such assignment) and, (b) record the information contained therein
in the Register. Administrative Agent shall maintain a copy of each
Assignment Agreement delivered to and accepted by it as provided in
this subsection 10.1B(ii).
(iii) Deemed Consent by the Company. If the consent of the
Company to an assignment or to an Eligible Assignee is required
hereunder (including a consent to an assignment which does not meet the
minimum assignment thresholds specified in subsection 10.1B(i)), the
Company shall be deemed to have given its consent five Business Days
after the date notice thereof has been delivered by the assigning
Lender (through Administrative Agent) unless such consent is expressly
refused by the Company prior to such fifth Business Day.
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(iv) Special Purpose Funding Vehicles. Notwithstanding
anything to the contrary contained herein, any Lender (a "GRANTING
LENDER") may grant to a special purpose funding vehicle (a "SPC"),
identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and Company, the option to provide to the
Company all or any part of any Loan that such Granting Lender would
otherwise be obligated to make to the Company pursuant to this
Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPC to make any Loan, and (ii) if an SPC elects not
to exercise such option or otherwise fails to provide all or any part
of such Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof. The making of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent,
and as if, such Loan were made by such Granting Lender. Each party
hereto hereby agrees that no SPC shall be liable for any indemnity or
similar payment obligation under this Agreement (all liability for
which shall remain with the Granting Lender). In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall
survive the termination of this Agreement) that, prior to the date that
is one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPC, it will not
institute against, or join any other person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under the laws of the United States or any
state thereof. In addition, notwithstanding anything to the contrary
contained in this subsection 10.1B(iv), any SPC may (i) with notice to,
but without the prior written consent of, the Company and the
Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Loans to the Granting
Lender or to any financial institutions (consented to by the Company
and Administrative Agent) providing liquidity and/or credit support to
or for the account of such SPC to support the funding or maintenance of
Loans and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial
paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPC. This subsection 10.1B(iv) may not be
amended without the written consent of the SPC.
C. PARTICIPATIONS. Any Lender may, without the consent of, or
notice to, the Company or Administrative Agent, sell participations to one or
more Persons (other than a natural Person or Company or any of its Affiliates)
in all or a portion of such Lender's rights and/or obligations under this
Agreement; provided that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) Company,
Administrative Agent and Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver directly affecting (i) the extension of
the scheduled final maturity date of any Loan allocated to such participation or
(ii) a reduction of the principal amount of or the rate of interest
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payable on any Loan allocated to such participation. Subject to the further
provisions of this subsection 10.1C, the Company agrees that each Participant
shall be entitled to the benefits of subsection 2.7 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to subsection
10.1B. To the extent permitted by law, each Participant also shall be entitled
to the benefits of subsection 10.4 as though it were a Lender, provided such
Participant agrees to be subject to subsection 10.5 as though it were a Lender.
A Participant shall not be entitled to receive any greater payment under
subsection 2.7 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant unless the sale of
the participation to such Participant is made with Company's prior written
consent. A Participant that would be a Non-US Lender if it were a Lender shall
not be entitled to the benefits of subsection 2.7 unless Company is notified of
the participation sold to such Participant and such Participant agrees, for the
benefit of the Company, to comply with subsection 2.7B(iii) as though it were a
Lender.
D. PLEDGES AND ASSIGNMENTS. Any Lender may at any time pledge
or assign a security interest in all or any portion of its Loans, and the other
Obligations owed to such Lender, to secure obligations of such Lender, including
without limitation any pledge or assignment to secure obligations to any Federal
Reserve Bank; provided that (i) no Lender shall be relieved of any of its
obligations hereunder as a result of any such assignment or pledge and (ii) in
no event shall any assignee or pledgee be considered to be a "Lender" or be
entitled to require the assigning Lender to take or omit to take any action
hereunder.
E. INFORMATION. Each Lender may furnish any information
concerning Company and its Subsidiaries in the possession of that Lender from
time to time to assignees and participants (including prospective assignees and
participants), subject to subsection 10.19.
F. AGREEMENTS OF LENDERS. Each Lender listed on the signature
pages hereof hereby agrees (i) that it is an Eligible Assignee described in
clause (ii) of the definition thereof; (ii) that it has experience and expertise
in the making of loans such as the Loans; and (iii) that it will make its Loans
for its own account in the ordinary course of its business and without a view to
distribution of such Loans within the meaning of the Securities Act or the
Exchange Act or other federal securities laws (it being understood that, subject
to the provisions of this subsection 10.1, the disposition of such Loans or any
interests therein shall at all times remain within its exclusive control). Each
Lender that becomes a party hereto pursuant to an Assignment Agreement shall be
deemed to agree that the agreements of such Lender contained in Section 2(c) of
such Assignment Agreement are incorporated herein by this reference.
10.2 EXPENSES.
Whether or not the transactions contemplated hereby shall be
consummated, the Company agrees to pay promptly (i) all reasonable costs and
expenses of negotiation, preparation and execution of the Loan Documents and any
consents, amendments, waivers or other modifications thereto; (ii) all costs and
expenses of furnishing all opinions by counsel for Company or any Loan Party
(including any opinions reasonably requested by Administrative Agent or Lenders
as to any legal matters arising hereunder) and of the Loan Parties' performance
of and compliance with all agreements and conditions on its part to be performed
or complied
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with under this Agreement and the other Loan Documents including with respect to
confirming compliance with environmental, insurance and solvency requirements;
(iii) all reasonable fees, expenses and disbursements of counsel to
Administrative Agent and Documentation Agent (including allocated costs of
internal counsel) in connection with the negotiation, preparation, execution and
administration of the Loan Documents and any consents, amendments, waivers or
other modifications thereto and any other documents or matters requested by the
Company or any other Loan Party; (iv) all costs and expenses of creating and
perfecting Liens in favor of Administrative Agent on behalf of Lenders pursuant
to any Collateral Document, including filing and recording fees, expenses and
taxes, stamp or documentary taxes, search fees, title insurance premiums, and
reasonable fees, expenses and disbursements of counsel to Administrative Agent
and of counsel providing any opinions that Administrative Agent or Requisite
Lenders may request in respect of the Collateral Documents or the Liens created
pursuant thereto; (v) all costs and expenses (including the reasonable fees,
expenses and disbursements of any auditors, accountants or appraisers and any
environmental or other consultants, advisors and agents employed or retained by
Administrative Agent, Documentation Agent or their counsel) of obtaining and any
environmental audits or reports provided for under subsection 4.1K or 6.17A;
(vi) all costs and expenses incurred by Administrative Agent in connection with
the custody or preservation of any of the Collateral; (vii) intentionally
deleted; (viii) all costs and expenses, including reasonable attorneys' fees
(including allocated costs of internal counsel) and fees, costs and expenses of
accountants, advisors and consultants, incurred by Administrative Agent,
Documentation Agent and their counsel relating to efforts to (a) evaluate or
assess any Loan Party, its business or financial condition and (b) protect,
evaluate, assess or dispose of any of the Collateral; and (ix) all costs and
expenses, including reasonable attorneys' fees (including allocated costs of
internal counsel), fees, costs and expenses of accountants, advisors and
consultants and costs of settlement, incurred by Administrative Agent,
Documentation Agent, and Lenders in enforcing any Obligations of or in
collecting any payments due from any Loan Party hereunder or under the other
Loan Documents (including in connection with the sale of, collection from, or
other realization upon any of the Collateral or the enforcement of the Loan
Documents) or in connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a "work-out" or
pursuant to any insolvency or bankruptcy proceedings; provided, however, (A) the
Company's obligation to pay the costs and expenses of Documentation Agent
incurred on or before to the Closing Date shall be subject to the limitations
set forth in the separate letter between the Company and Documentation Agent,
and (B) the Company shall not be obligated to pay any costs and expenses of
Administrative Agent incurred prior to October 17, 2002 or any internal costs
and expenses of Administrative Agent (including allocated cost of in-house
counsel) incurred prior to the Closing Date.
10.3 INDEMNITY.
In addition to the payment of expenses pursuant to subsection
10.2, whether or not the transactions contemplated hereby shall be consummated,
the Company agrees to defend (subject to Indemnitees' selection of counsel),
indemnify, pay and hold harmless Administrative Agent, Documentation Agent and
Lenders, and the officers, directors, employees, agents and Affiliates of
Administrative Agent, Documentation Agent and Lenders (collectively called the
"INDEMNITEES"), from and against any and all Indemnified Liabilities (as
hereinafter defined);
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provided that Company shall not have any obligation to any Indemnitee hereunder
with respect to any Indemnified Liabilities to the extent such Indemnified
Liabilities arise solely from the gross negligence or willful misconduct of that
Indemnitee as determined by a final judgment of a court of competent
jurisdiction.
As used herein, "INDEMNIFIED LIABILITIES" means, collectively,
any and all liabilities, obligations, losses, damages (including natural
resource damages), penalties, actions, judgments, suits, claims (including
Environmental Claims), costs (including the costs of any investigation, study,
sampling, testing, abatement, cleanup, removal, remediation or other response
action necessary to remove, remediate, clean up or ▇▇▇▇▇ any Hazardous Materials
Activity), expenses and disbursements of any kind or nature whatsoever
(including the reasonable fees and disbursements of counsel for Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened by any Person, whether or not any such Indemnitee shall
be designated as a party or a potential party thereto, and any fees or expenses
incurred by Indemnitees in enforcing this indemnity), whether direct, indirect
or consequential and whether based on any federal, state or foreign laws,
statutes, rules or regulations (including securities and commercial laws,
statutes, rules or regulations and Environmental Laws), on common law or
equitable cause or on contract or otherwise, that may be imposed on, incurred
by, or asserted against any such Indemnitee, in any manner relating to or
arising out of (i) this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby (including Lenders' agreement to
make the Loans hereunder or the use or intended use of the proceeds thereof), or
(ii) any Environmental Claim or any Hazardous Materials Activity relating to or
arising from, directly or indirectly, any past or present activity, operation,
land ownership, or practice of the Company or any of its Subsidiaries.
To the extent that the undertakings to defend, indemnify, pay
and hold harmless set forth in this subsection 10.3 may be unenforceable in
whole or in part because they are violative of any law or public policy, the
Company shall contribute the maximum portion that it is permitted to pay and
satisfy under applicable law to the payment and satisfaction of all Indemnified
Liabilities incurred by Indemnitees or any of them.
10.4 SET-OFF; SECURITY INTEREST IN DEPOSIT ACCOUNTS.
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default each Lender is hereby authorized by the
Company at any time or from time to time, without notice to the Company or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and to apply any and all deposits (general or special, time or
demand, provisional or final, including Indebtedness evidenced by certificates
of deposit, whether matured or unmatured, but not including trust accounts) and
any other Indebtedness at any time held or owing by that Lender or any Affiliate
of that Lender to or for the credit or the account of the Company or any other
Loan Party against and on account of the Obligations of the Company or any other
Loan Party to that Lender (or any Affiliate of that Lender) or to any other
Lender (or any Affiliate of any other Lender) under this Agreement, and
participations therein and the other Loan Documents, including all claims of any
nature or description arising out of or connected with this Agreement and
participations therein or any other Loan Document, irrespective of
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whether or not (i) that Lender shall have made any demand hereunder or (ii) the
principal of or the interest on the Loans any other amounts due hereunder shall
have become due and payable pursuant to Section 8 and although said obligations
and liabilities, or any of them, may be contingent or unmatured. The Company
hereby further grants to Administrative Agent and each Lender a security
interest in all deposits and accounts maintained with Administrative Agent or
such Lender as security for the Obligations.
10.5 RATABLE SHARING.
Lenders hereby agree among themselves that if any of them
shall, whether by voluntary payment (other than a voluntary prepayment of Loans
made and applied in accordance with the terms of this Agreement), by realization
upon security, through the exercise of any right of set-off or banker's lien, by
counterclaim or cross action or by the enforcement of any right under the Loan
Documents or otherwise, or as adequate protection of a deposit treated as cash
collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, fees and other
amounts then due and owing to that Lender hereunder or under the other Loan
Documents (collectively, the "AGGREGATE AMOUNTS DUE" to such Lender) that is
greater than the proportion received by any other Lender in respect of the
Aggregate Amounts Due to such other Lender, then the Lender receiving such
proportionately greater payment shall (i) notify Administrative Agent and each
other Lender of the receipt of such payment and (ii) apply a portion of such
payment to purchase assignments (which it shall be deemed to have purchased from
each seller of an assignment simultaneously upon the receipt by such seller of
its portion of such payment) of the Aggregate Amounts Due to the other Lenders
so that all such recoveries of Aggregate Amounts Due shall be shared by all
Lenders in proportion to the Aggregate Amounts Due to them; provided that if all
or part of such proportionately greater payment received by such purchasing
Lender is thereafter recovered from such Lender upon the bankruptcy or
reorganization of the Company or otherwise, those purchases shall be rescinded
and the purchase prices paid for such assignments shall be returned to such
purchasing Lender ratably to the extent of such recovery, but without interest.
The Company expressly consents to the foregoing arrangement and agrees that any
purchaser of an assignment so purchased may exercise any and all rights of a
Lender as to such assignment as fully as if that Lender had complied with the
provisions of subsection 10.1B with respect to such assignment. In order to
further evidence such assignment (and without prejudice to the effectiveness of
the assignment provisions set forth above), each purchasing Lender and each
selling Lender agree to enter into an Assignment Agreement at the request of a
selling Lender or a purchasing Lender, as the case may be, in form and substance
reasonably satisfactory to each such Lender.
10.6 AMENDMENTS AND WAIVERS.
No amendment, modification, termination or waiver of any
provision of this Agreement or of the Notes, and no consent to any departure by
the Company therefrom, shall in any event be effective without the written
concurrence of Requisite Lenders and then shall be effective only in the
specific instance and for the specific purpose given; provided that no such
amendment, modification, termination, waiver or consent shall, without the
consent of
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(a) each Lender with Obligations directly affected (whose
consent shall be sufficient for any such amendment, modification, termination or
waiver without the consent of Requisite Lenders) (1) reduce the principal amount
of any Loan, (2) postpone the date or reduce the amount of any scheduled payment
(but not prepayment) of principal of any Loan, (3) postpone the date on which
any interest or any fees are payable, and (4) decrease the interest rate borne
by any Loan (other than any waiver of any increase in the interest rate
applicable to any of the Loans pursuant to subsection 2.2E) or the amount of any
fees payable hereunder;
(b) each Lender, (1) change in any manner the definition of
"Pro Rata Share" or the definition of "Requisite Lenders" (except for any
changes resulting solely from an increase in Commitments approved by Requisite
Lenders), (2) change in any manner any provision of this Agreement that, by its
terms, expressly requires the approval or concurrence of all Lenders, (3)
release any Lien granted in favor of Administrative Agent with respect to all or
any portion of the Collateral or release any Guarantor from their respective
obligations under the Parent Guaranty, in each case other than in accordance
with the terms of the Loan Documents, or (4) change in any manner or waive the
provisions contained in subsection 8.1 or this subsection 10.6.
In addition, (i) no amendment, modification, termination or waiver of any
provision of any Note shall be effective without the written concurrence of the
Lender which is the holder of that Note, (ii) no amendment, modification,
termination or waiver of any provision of Section 9 or of any other provision of
this Agreement which, by its terms, expressly requires the approval or
concurrence of Administrative Agent shall be effective without the written
concurrence of Administrative Agent, and (iii) no Commitment of a Lender shall
be increased without the consent of such Lender. Administrative Agent may, but
shall have no obligation to, with the concurrence of any Lender, execute
amendments, modifications, waivers or consents on behalf of that Lender. Any
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which it was given. No notice to or demand on Company in
any case shall entitle Company to any other or further notice or demand in
similar or other circumstances. Any amendment, modification, termination, waiver
or consent effected in accordance with this subsection 10.6 shall be binding
upon each Lender at the time outstanding, each future Lender and, if signed by
the Company, on Company.
10.7 INDEPENDENCE OF COVENANTS.
All covenants hereunder shall be given independent effect so
that if a particular action or condition is not permitted by any of such
covenants, the fact that it would be permitted by an exception to, or would
otherwise be within the limitations of, another covenant shall not avoid the
occurrence of an Event of Default or Potential Event of Default if such action
is taken or condition exists.
10.8 NOTICES; EFFECTIVENESS OF SIGNATURES.
Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be in writing
and may be personally served, or sent by telefacsimile or United States mail or
courier service and shall be deemed to have been given
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when delivered in person or by courier service, upon receipt of telefacsimile in
complete and legible form, or three Business Days after depositing it in the
United States mail with postage prepaid and properly addressed; provided that
notices to Administrative Agent shall not be effective until received. For the
purposes hereof, the address of each party hereto shall be as set forth under
such party's name on the signature pages hereof or (i) as to the Company and
Administrative Agent, such other address as shall be designated by such Person
in a written notice delivered to the other parties hereto and (ii) as to each
other party, such other address as shall be designated by such party in a
written notice delivered to Administrative Agent. Electronic mail and Internet
and intranet websites may be used to distribute routine communications, such as
financial statements and other information as provided in subsection 6.2;
provided, however, that no signature with respect to any notice, request,
agreement, waiver, amendment or other document or any notice that is intended to
have binding effect may be sent by electronic mail.
Loan Documents and notices under the Loan Documents may be
transmitted and/or signed by telefacsimile. The effectiveness of any such
documents and signatures shall, subject to applicable law, have the same force
and effect as an original copy with manual signatures and shall be binding on
all Loan Parties, Agents and Lenders. Administrative Agent may also require that
any such documents and signature be confirmed by a manually-signed copy thereof;
provided, however, that the failure to request or deliver any such
manually-signed copy shall not affect the effectiveness of any facsimile
document or signature.
10.9 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
A. All representations, warranties and agreements made herein
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.
B. Notwithstanding anything in this Agreement or implied by
law to the contrary, the agreements of the Company set forth in subsections 2.7,
10.2, 10.3, 10.4, 10.17 and 10.18 and the agreements of Lenders set forth in
subsections 9.2C, 9.4, 10.5 and 10.18 shall survive the payment of the Loans and
the termination of this Agreement.
10.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of an Agent or any Lender in
the exercise of any power, right or privilege hereunder or under any other Loan
Document shall impair such power, right or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
The rights of the Administrative Agent and the Lenders under
any Loan Document against any party thereto are not conditional or contingent on
any attempt by the Administrative Agent and the Lenders to exercise any of their
rights under any other Loan Document against such party or against any other
Person.
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10.11 MARSHALLING; PAYMENTS SET ASIDE.
Neither any Agent nor any Lender shall be under any obligation
to marshal any assets in favor of the Company or any other party or against or
in payment of any or all of the Obligations. To the extent that Company makes a
payment or payments to Administrative Agent or Lenders (or to Administrative
Agent for the benefit of Lenders), or Agents or Lenders enforce any security
interests or exercise their rights of setoff, and such payment or payments or
the proceeds of such enforcement or setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, any other state or federal law, common law or any equitable
cause, then, to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, rights and remedies therefor
or related thereto, shall be revived and continued in full force and effect as
if such payment or payments had not been made or such enforcement or setoff had
not occurred.
10.12 SEVERABILITY.
In case any provision in or obligation under this Agreement or
the Notes shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
10.13 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS;
DAMAGE WAIVER.
The obligations of Lenders hereunder are several and no Lender
shall be responsible for the obligations or Commitments of any other Lender
hereunder. Nothing contained herein or in any other Loan Document, and no action
taken by Lenders pursuant hereto or thereto, shall be deemed to constitute
Lenders, or Lenders and Company, as a partnership, an association, a Joint
Venture or any other kind of entity. The amounts payable at any time hereunder
to each Lender shall be a separate and independent debt, and each Lender shall
be entitled to protect and enforce its rights arising out of this Agreement and
it shall not be necessary for any other Lender to be joined as an additional
party in any proceeding for such purpose.
To the extent permitted by law, the Company 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
(including, without limitation, subsection 2.1C hereof), any other Loan
Document, any transaction contemplated by the Loan Documents, any Loan or the
use of proceeds thereof.
10.14 RELEASE OF SECURITY INTEREST OR PARENT GUARANTY.
Upon the proposed sale or other disposition of any Collateral
that is permitted by this Agreement or to which Requisite Lenders have otherwise
consented, for which a Loan Party desires to obtain a security interest release
or a release of the Parent Guaranty from
114
Administrative Agent, such Loan Party shall deliver an Officer's Certificate (i)
stating that the Collateral or the Capital Stock subject to such disposition is
being sold or otherwise disposed of in compliance with the terms hereof and (ii)
specifying the Collateral or Capital Stock being sold or otherwise disposed of
in the proposed transaction. Upon the receipt of such Officer's Certificate,
Administrative Agent shall, at such Loan Party's expense, so long as
Administrative Agent (a) has no reason to believe that the facts stated in such
Officer's Certificate are not true and correct and (b), if the sale or other
disposition of such item of Collateral or Capital Stock constitutes an Asset
Disposition, shall have received evidence satisfactory to it that arrangements
satisfactory to it have been made for delivery of the Net Available Cash if and
as required by subsection 2.4, execute and deliver such releases of its security
interest in such Collateral, as may be reasonably requested by such Loan Party.
10.15 APPLICABLE LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK (INCLUDING SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE APPLICATION OF ANOTHER LAW.
10.16 CONSTRUCTION OF AGREEMENT; NATURE OF RELATIONSHIP.
Each of the parties hereto acknowledges that (i) it has been
represented by counsel in the negotiation and documentation of the terms of this
Agreement, (ii) it has had full and fair opportunity to review and revise the
terms of this Agreement, (iii) this Agreement has been drafted jointly by all of
the parties hereto, and (iv) neither Administrative Agent nor any Lender or
other Agent has any fiduciary relationship with or duty to the Company arising
out of or in connection with this Agreement or any of the other Loan Documents,
and the relationship between Administrative Agent, the other Agents and Lenders,
on one hand, and Company, on the other hand, in connection herewith or therewith
is solely that of debtor and creditor. Accordingly, each of the parties hereto
acknowledges and agrees that the terms of this Agreement shall not be construed
against or in favor of another party.
10.17 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY LOAN PARTY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY
OBLIGATIONS THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇. BY EXECUTING
AND DELIVERING THIS AGREEMENT, EACH LOAN PARTY, FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
115
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL, RETURN RECEIPT REQUESTED, TO SUCH LOAN PARTY AT ITS ADDRESS
PROVIDED IN ACCORDANCE WITH SUBSECTION 10.8;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER COMPANY IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS
AGAINST THE LOAN PARTIES IN THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 10.17
RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO
THE FULLEST EXTENT PERMISSIBLE UNDER
NEW YORK GENERAL OBLIGATIONS LAW
SECTION 5-1402 OR OTHERWISE.
10.18 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE
ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR
THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this
waiver is intended to be all-encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of this transaction,
including contract claims, tort claims, breach of duty claims and all other
common law and statutory claims. Each party hereto acknowledges that this waiver
is a material inducement to enter into a business relationship, that each has
already relied on this waiver in entering into this Agreement, and that each
will continue to rely on this waiver in their related future dealings. Each
party hereto further warrants and represents that it has reviewed this waiver
with its legal counsel and that it knowingly and voluntarily waives its jury
trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING
(OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION
10.18 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT OR ANY OF THE OTHER LOAN
116
DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE
HEREUNDER. In the event of litigation, this Agreement may be filed as a written
consent to a trial by the court.
10.19 CONFIDENTIALITY.
Each Lender shall hold confidential all non-public information
obtained from or relating to the Company in connection with this Agreement
("CONFIDENTIAL INFORMATION") in accordance with such Lender's customary
procedures for handling Confidential Information of this nature, it being
understood and agreed by the Company that in any event a Lender may make
disclosures (a) to its and its Affiliates' directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Confidential Information and instructed to keep
such Confidential Information confidential), (b) to the extent required by any
Government Authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process (each a "LEGAL
PROCEEDING"), (d) to any other party to this Agreement, (e) in connection with
the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or the enforcement of rights hereunder but in each
case as required to exercise such remedies or to enforce such rights, (f)
subject to an agreement containing provisions substantially the same as those of
this subsection 10.19, to (1) any Eligible Assignee of or participant in, or any
prospective Eligible Assignee of or Participant in, any of its rights or
obligations under this Agreement or (2) any direct or indirect contractual
counterparty or prospective counterparty (or such contractual counterparty's or
prospective counterparty's professional advisor) to any credit derivative
transaction relating to obligations of the Company, (g) with the written consent
of the Company, (h) to the extent such Confidential Information (1) becomes
publicly available other than as a result of a breach of this subsection 10.19
or (2) becomes available to Administrative Agent or any Lender on a
nonconfidential basis from a source other than Company, or (3) to the National
Association of Insurance Commissioners or any other similar organization or any
nationally recognized rating agency that requires access to information about a
Lender's or its Affiliates' investment portfolio in connection with ratings
issued with respect to such Lender or its Affiliates, and such Lender agrees
that no written or oral communications from counsel to an Agent and no
information that is or is designated as privileged or as attorney work product
may be disclosed to any Person unless such Person is a Lender or a Participant
hereunder; provided that, unless specifically prohibited by applicable law or
court order, each Lender shall notify Company of any request by any Government
Authority or representative thereof or any disclosure requested in connection
with a Legal Proceeding so that the Company may contest such request of
disclosure; and provided, further that in no event shall any Agent or Lender be
obligated or required to return any materials furnished by any Loan Party or any
of the Company's Subsidiaries. After public announcement thereof by the Company,
Administrative Agent and Lenders may disclose the existence of this Agreement
(but only to the extent set forth in a public announcement by the Company) to
market data collectors, similar service providers to the lending industry, and
service providers to Administrative Agent and Lenders. Lenders, Eligible
Assignees, Participants, and the affiliates, directors, officers, employees and
agents thereof, shall use the Confidential Information only for the purposes
117
contemplated by this Agreement and not for any other purposes, including trading
in the Securities of the Company or Holding Co.
10.20 COUNTERPARTS; EFFECTIVENESS.
This Agreement and any amendments, waivers, consents or
supplements hereto or in connection herewith may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto.
10.21 DESIGNATED SENIOR INDEBTEDNESS.
The Company hereby confirms that the Obligations constitute
"Bank Indebtedness" and "Designated Senior Indebtedness" (as such terms are
defined in the Senior Subordinated Note Indenture) and the Administrative Agent
is the Representative (as such term is defined in the Senior Subordinated Note
Indenture) for all purposes under the Senior Subordinated Note Indenture.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
COMPANY:
TEXAS PETROCHEMICALS LP
By: TPC Holding Corp.,
a Delaware corporation
its general partner
By:
---------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and Chief
Financial Officer
Notice Address:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Financial Officer and
General Counsel
S-2
HOLDING CO.:
TEXAS PETROCHEMICALS HOLDINGS, INC.
By:
--------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and Chief
Financial Officer
Notice Address:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Financial Officer and
General Counsel
2
GP PARENT:
TPC HOLDING CORP.
By:
--------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and Chief
Financial Officer
Notice Address:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Financial Officer and
General Counsel
LIMITED PARTNER:
PETROCHEMICALS PARTNERSHIP HOLDINGS INC.
By:
-------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
Notice Address:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: 713-
----------------
Attention: Chief Financial Officer and
General Counsel
3
ADMINISTRATIVE AGENT:
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
By:
-------------------------------
Title:
-------------------------------
By:
-------------------------------
Title:
-------------------------------
Notice Address:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Agency Department Manager
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Payment Instructions:
Bank of New York
ABA ▇▇▇▇▇▇▇▇▇
A/C Name: CSFB Agency Cayman Account
A/C Number: 8900492627
Reference:
Texas Petrochemicals LP
4
LENDERS:
CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH,
as a Lender
By:
-------------------------------
Title:
-------------------------------
By:
-------------------------------
Title:
-------------------------------
Notice Address:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Agency Department Manager
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Payment Instructions:
Bank of New York
ABA ▇▇▇▇▇▇▇▇▇
A/C Name: CSFB Agency Cayman Account
A/C Number: 8900492627
Reference:
Texas Petrochemicals LP
5