EXHIBIT 99.B2
U.S.$165,000,000
CREDIT AGREEMENT,
dated as of April [ ], 2002,
among
ASSOCIATED MATERIALS INCORPORATED,
as the Borrower,
ASSOCIATED MATERIALS HOLDINGS INC.,
as a Guarantor,
VARIOUS FINANCIAL INSTITUTIONS AND OTHER PERSONS
FROM TIME TO TIME PARTIES HERETO,
as the Lenders,
UBS AG, STAMFORD BRANCH,
as the Administrative Agent,
CREDIT SUISSE FIRST BOSTON, CAYMAN ISLANDS BRANCH,
as the Syndication Agent,
and
CIBC WORLD MARKETS CORP.,
as the Documentation Agent.
---------------------
UBS WARBURG LLC
and
CREDIT SUISSE FIRST BOSTON CORPORATION,
as the Joint Lead Arrangers
Table of Contents
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms..................................................4
SECTION 1.2. Use of Defined Terms..........................................38
SECTION 1.3. Cross-References..............................................38
SECTION 1.4. Accounting and Financial Determinations.......................38
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES,
NOTES AND LETTERS OF CREDIT
SECTION 2.1. Commitments...................................................39
SECTION 2.1.1. Revolving Loan Commitment and Swing Line Loan Commitment...39
SECTION 2.1.2. Letter of Credit Commitment................................39
SECTION 2.1.3. Term Loan Commitment.......................................40
SECTION 2.2. Reduction of the Commitment Amounts........................40
SECTION 2.2.1. Optional...................................................40
SECTION 2.2.2. Mandatory..................................................40
SECTION 2.3. Borrowing Procedures..........................................40
SECTION 2.3.1. Borrowing Procedures.......................................41
SECTION 2.3.2. Swing Line Loan Borrowing Procedures.......................41
SECTION 2.4. Continuation and Conversion Elections.........................42
SECTION 2.5. Funding.......................................................43
SECTION 2.6. Letter of Credit Issuance Procedures..........................43
SECTION 2.6.1. Other Lenders' Participation...............................43
SECTION 2.6.2. Disbursements..............................................44
SECTION 2.6.3. Reimbursement..............................................44
SECTION 2.6.4. Deemed Disbursements.......................................44
SECTION 2.6.5. Nature of Reimbursement Obligations........................45
SECTION 2.7. Register; Notes...............................................45
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application.......................47
SECTION 3.1.1. Repayments and Prepayments.................................47
SECTION 3.1.2. Application................................................50
SECTION 3.2. Interest Provisions...........................................50
SECTION 3.2.1. Rates......................................................50
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SECTION 3.2.2. Post-Maturity Rates........................................50
SECTION 3.2.3. Payment Dates..............................................51
SECTION 3.3. Fees..........................................................51
SECTION 3.3.1. Commitment Fee.............................................51
SECTION 3.3.2. Agents' Fee................................................52
SECTION 3.3.3. Letter of Credit Fees......................................52
ARTICLE IV
CERTAIN EURODOLLAR AND OTHER PROVISIONS
SECTION 4.1. Eurodollar Lending Unlawful...................................52
SECTION 4.2. Deposits Unavailable..........................................53
SECTION 4.3. Increased Eurodollar Loan Costs, etc..........................53
SECTION 4.4. Funding Losses................................................53
SECTION 4.5. Increased Capital Costs.......................................54
SECTION 4.6. Taxes.........................................................54
SECTION 4.7. Payments, Computations, etc...................................57
SECTION 4.8. Sharing of Payments...........................................57
SECTION 4.9. Setoff........................................................58
SECTION 4.10. Replacement of Lenders........................................58
SECTION 4.11. Change of Lending Office......................................59
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. Initial Credit Extension......................................59
SECTION 5.1.1. Resolutions, etc...........................................59
SECTION 5.1.2. Material Transaction Documents.............................60
SECTION 5.1.3. Tender Offer Completed.....................................60
SECTION 5.1.4. Debt Tender Offer..........................................60
SECTION 5.1.5. Supplemental Indenture.....................................61
SECTION 5.1.6. Antitakeover Statutes......................................61
SECTION 5.1.7. No Impediments to the Merger...............................61
SECTION 5.1.8. Mergerco Debt Financing....................................61
SECTION 5.1.9. Equity Investment..........................................61
SECTION 5.1.10. Payment of Outstanding Indebtedness, etc...................61
SECTION 5.1.11. Closing Date Certificate...................................62
SECTION 5.1.12. Delivery of Notes..........................................62
SECTION 5.1.13. Closing Fees, Expenses, etc................................62
SECTION 5.1.14. No Material Adverse Effect.................................62
SECTION 5.1.15. Term Loan Escrow Account...................................62
SECTION 5.1.16. Mergerco Guaranty..........................................63
SECTION 5.1.17. Subsidiary Guaranty........................................63
SECTION 5.1.18. Solvency Certificate.......................................63
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SECTION 5.1.19. Security and Pledge Agreements.............................63
SECTION 5.1.20. Patent Security Agreement, Copyright Security Agreement
and Trademark Security Agreement...........................64
SECTION 5.1.21. Mortgages..................................................64
SECTION 5.1.22. Perfection Certificate, Filing Agent, etc..................65
SECTION 5.1.23. Insurance..................................................65
SECTION 5.1.24. Approvals..................................................65
SECTION 5.1.25. Opinions of Counsel........................................65
SECTION 5.2. All Credit Extensions.........................................66
SECTION 5.2.1. Compliance with Warranties, No Default, etc................66
SECTION 5.2.2. Credit Extension Request, etc..............................66
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.1. Organization, etc.............................................66
SECTION 6.2. Due Authorization, Non-Contravention, etc.....................67
SECTION 6.3. Government Approval, Regulation, etc..........................67
SECTION 6.4. Validity, etc.................................................67
SECTION 6.5. Financial Information.........................................68
SECTION 6.6. No Material Adverse Effect....................................68
SECTION 6.7. Litigation....................................................68
SECTION 6.8. Labor Matters.................................................68
SECTION 6.9. Subsidiaries..................................................68
SECTION 6.10. Ownership of Properties.......................................69
SECTION 6.11. Taxes.........................................................69
SECTION 6.12. Pension and Welfare Plans.....................................69
SECTION 6.13. Environmental Warranties......................................70
SECTION 6.14. Accuracy of Information.......................................71
SECTION 6.15. Regulations U and X...........................................71
SECTION 6.16. Issuance of Subordinated Debt, Status of Obligations as Senior
Indebtedness, etc.............................................72
SECTION 6.17. Solvency......................................................72
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants.........................................72
SECTION 7.1.1. Financial Information, Reports, Notices, etc...............72
SECTION 7.1.2. Maintenance of Existence; Compliance with Laws, etc........74
SECTION 7.1.3. Maintenance of Properties..................................75
SECTION 7.1.4. Insurance..................................................75
SECTION 7.1.5. Bank Meeting; Books and Records............................76
SECTION 7.1.6. Environmental Law Covenant.................................77
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TABLE OF CONTENTS
(continued)
Page
SECTION 7.1.7. Use of Proceeds............................................78
SECTION 7.1.8. Mortgages..................................................78
SECTION 7.1.9. Future Subsidiaries........................................79
SECTION 7.1.10. Additional Collateral......................................81
SECTION 7.1.11. Consummation of Merger.....................................81
SECTION 7.1.12. Maintenance of Corporate Separateness......................81
SECTION 7.1.13. Holdings Stockholders Agreement............................81
SECTION 7.2. Negative Covenants............................................81
SECTION 7.2.1. Business Activities........................................82
SECTION 7.2.2. Indebtedness...............................................82
SECTION 7.2.3. Liens......................................................84
SECTION 7.2.4. Financial Condition and Operations.........................86
SECTION 7.2.5. Investments................................................88
SECTION 7.2.6. Restricted Payments, etc...................................90
SECTION 7.2.7. Capital Expenditures, etc..................................91
SECTION 7.2.8. No Prepayment of Subordinated Debt.........................92
SECTION 7.2.9. Capital Stock of Subsidiaries..............................92
SECTION 7.2.10. Consolidation, Merger, etc.................................92
SECTION 7.2.11. Permitted Dispositions.....................................93
SECTION 7.2.12. Modification of Certain Agreements.........................94
SECTION 7.2.13. Transactions with Affiliates...............................94
SECTION 7.2.14. Restrictive Agreements, etc................................95
SECTION 7.2.15. Sale and Leaseback.........................................95
SECTION 7.2.16. Take or Pay Contracts......................................96
SECTION 7.2.17. Fiscal Year................................................96
SECTION 7.2.18. Activities of Holdings.....................................96
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default..................................97
SECTION 8.1.1. Non-Payment of Obligations.................................97
SECTION 8.1.2. Breach of Warranty.........................................97
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations.......97
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations.........97
SECTION 8.1.5. Default on Other Indebtedness..............................97
SECTION 8.1.6. Judgments..................................................98
SECTION 8.1.7. Pension Plans..............................................98
SECTION 8.1.8. Change in Control..........................................98
SECTION 8.1.9. Bankruptcy, Insolvency, etc................................98
SECTION 8.1.10. Impairment of Security, etc................................99
SECTION 8.1.11. Failure of Subordination...................................99
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(continued)
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SECTION 8.2. Action if Bankruptcy..........................................99
SECTION 8.3. Action if Other Event of Default.............................100
ARTICLE IX
HOLDINGS GUARANTY
SECTION 9.1. Guaranty.....................................................100
SECTION 9.2. Acceleration of Holdings Guaranty............................100
SECTION 9.3. Guaranty Absolute, etc.......................................101
SECTION 9.4. Reinstatement, etc...........................................102
SECTION 9.5. Waiver, etc..................................................102
SECTION 9.6. Postponement of Subrogation, etc.............................102
SECTION 9.7. Successors, Transferees and Assigns; Transfers of Notes,
etc..........................................................102
ARTICLE X
THE AGENTS
SECTION 10.1. Appointments and Authorizations; Actions.....................103
SECTION 10.2. Funding, Reliance, etc.......................................104
SECTION 10.3. Exculpation..................................................104
SECTION 10.4. Successor....................................................105
SECTION 10.5. Credit Extensions by each Agent..............................105
SECTION 10.6. Credit Decisions.............................................106
SECTION 10.7. Copies, etc..................................................106
SECTION 10.8. Reliance by Agents...........................................106
SECTION 10.9. Notice of Defaults...........................................107
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc.....................................107
SECTION 11.2. Notices; Time................................................109
SECTION 11.3. Payment of Costs and Expenses................................109
SECTION 11.4. Indemnification..............................................110
SECTION 11.5. Survival.....................................................111
SECTION 11.6. Severability.................................................112
SECTION 11.7. Headings.....................................................112
SECTION 11.8. Execution in Counterparts, Effectiveness, etc................112
SECTION 11.9. Governing Law; Entire Agreement..............................112
SECTION 11.10. Successors and Assigns.......................................112
SECTION 11.11. Sale and Transfer of Credit Extensions; Participations in
Credit Extensions Notes......................................112
SECTION 11.12. Other Transactions...........................................115
SECTION 11.13. Independence of Covenants....................................115
SECTION 11.14. Forum Selection and Consent to Jurisdiction..................115
SECTION 11.15. Waiver of Jury Trial.........................................116
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TABLE OF CONTENTS
(continued)
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EXHIBITS
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Swing Line Note
EXHIBIT A-3 - Form of Term Loan Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Closing Date Certificate
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F-1 - Form of Mergerco Guaranty
EXHIBIT F-2 - Form of Subsidiary Guaranty
EXHIBIT G-1 - Form of Holdings Pledge Agreement
EXHIBIT G-2 - Form of Borrower Security and Pledge Agreement
EXHIBIT G-3 - Form of Subsidiary Security and Pledge Agreement
EXHIBIT H - Form of Perfection Certificate
EXHIBIT I - Form of Solvency Certificate
EXHIBIT J - Form of Interco Subordination Agreement
EXHIBIT K - Form of Lender Assignment Agreement
EXHIBIT L - Form of Term Loan Escrow and Pledge Agreement
SCHEDULES
SCHEDULE I - Disclosure Schedule
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of April [ ], 2002, is made by and among,
ASSOCIATED MATERIALS INCORPORATED, a Delaware corporation ("AMI"), ASSOCIATED
MATERIALS HOLDINGS INC., a Delaware corporation ("Holdings"), the various
financial institutions and other Persons from time to time parties hereto (the
"Lenders"), UBS AG, Stamford Branch, as administrative agent (in such capacity,
the "Administrative Agent"), CREDIT SUISSE FIRST BOSTON, CAYMAN ISLANDS BRANCH,
as syndication agent (in such capacity, the "Syndication Agent"), CIBC WORLD
MARKETS CORP., as documentation agent (in such capacity, the "Documentation
Agent"), and UBS WARBURG LLC and CREDIT SUISSE FIRST BOSTON CORPORATION, as
joint lead arrangers (in such capacity, the "Joint Lead Arrangers").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Holdings, its wholly-owned Subsidiary, Simon Acquisition Corp., a
Delaware corporation ("Mergerco"), and AMI have entered into an Agreement and
Plan of Merger, dated as of March 16, 2002 (as amended in accordance herewith,
the "Acquisition Agreement"), pursuant to which Mergerco will acquire AMI (the
"Acquisition") as follows:
(i) Mergerco has made a cash tender offer (the "Tender Offer") for
100% of all outstanding shares of Capital Stock of AMI (the "Shares") at a
price of $50.00 per Share (the "Tender Offer Consideration"); provided that
the Tender Offer is subject to the condition (among others) that a
sufficient number of Shares be tendered (and not withdrawn) so as to permit
the merger of Mergerco with and into AMI (the "Merger", with the
corporation surviving such Merger being the "Surviving Corporation")
without need of the affirmative vote or other consent of any other
shareholder of AMI (such condition being the "Minimum Condition", and such
sufficient number of Shares being the "Minimum Shares"); and
(ii) upon the effectiveness of the Merger, all Shares not tendered
pursuant to the Tender Offer will be cancelled for per Share cash
consideration (the "Merger Consideration") equal to the price per Share
paid in the Tender Offer (subject to the right of each holder of any such
Shares to pursue appraisal rights under the DGCL) and, as a result thereof,
the Surviving Corporation shall become the wholly-owned Subsidiary of
Holdings, which in turn, will be owned and controlled by the Investors
(defined below);
WHEREAS, in connection with the Acquisition, AMI will be required, among
other things, to refinance or defease (collectively, the "Refinancing") not less
than $70,000,000 in the aggregate of its outstanding 9 1/4% senior subordinated
notes due 2008 (the "Existing Notes"), which Refinancing shall be accomplished
pursuant to and in accordance with the terms of the Debt Tender;
WHEREAS, approximately $469,200,000 will be required in order to consummate
the Acquisition and the Refinancing and to pay related fees, costs and expenses,
including prepayment premiums resulting from the Refinancing (the foregoing,
including the Tender Offer and the Merger, and all transactions related thereto
(including the capital raising transactions described below in this recital),
being herein referred to as the "Transaction"), which amount (the "Total Uses")
will be raised from the following sources:
(i) except to the extent provided below, approximately $7,200,000 from
cash on hand of AMI (the "Cash on Hand");
(ii) at least $172,000,000 from equity investments in Holdings
(collectively, the "Equity Investment"), which shall be comprised of the
following:
(x) at least $160,000,000 of cash equity contributions (the "Cash
Equity Contribution") made by certain funds managed by Harvest
Partners, Inc. ("Harvest Partners") and certain other investors
(together with Harvest Partners and such funds, the "Investors"),
which contributions shall, in turn, be contributed by Holdings as cash
common equity to Mergerco; provided that, upon written notice to the
Agents no less than two Business Days prior to the Closing Date, a
portion of the Cash Equity Contribution not to exceed $[____] may be
provided from cash proceeds of subordinated equity bridge loans (the
"Equity Bridge Loans") made by Harvest Partners and certain funds
managed by it to Holdings, which Equity Bridge Loans shall be
evidenced by, and governed pursuant to and in accordance with, one or
more Equity Bridge Notes;
(y) certain existing management shareholders of AMI may, in lieu
of accepting the Tender Offer Consideration, exchange all or a portion
of their Shares for Capital Stock of Holdings (the "Rollover Equity");
and
(z) to the extent the aggregate amount provided pursuant to
clauses (i), (ii)(x) and (ii)(y) of this recital is less than
$179,200,000, an additional Cash Equity Contribution shall be made by
the Investors to Holdings in an amount at least equal to such
deficiency (the "Additional Equity Investment");
(iii) the issuance or incurrence by Mergerco of at least $165,000,000
in aggregate gross proceeds of unsecured senior or unsecured senior
subordinated indebtedness pursuant to the following (collectively, the
"Mergerco Debt Financing"):
(x) a public offering or Rule 144A or other private placement of
senior subordinated notes (the "New Notes", with such offering or
placement being, collectively, the "New Notes Offering"); or
(y) in the event the New Notes are not issued or the proceeds
therefrom are not otherwise available to Mergerco on the date of
consummation of the Tender Offer (the "Tender Offer Closing Date"),
the borrowing of senior unsecured bridge loans (such bridge loans,
together with (A) any senior unsecured term loans into which any such
bridge loans may be converted pursuant to the terms of the Bridge Loan
Agreement and (B) any senior unsecured exchange notes for which such
bridge loans or term loans, as the case may be, may be exchanged
pursuant to the terms of the Bridge Loan Agreement, being,
collectively, the "Bridge Loans") made pursuant to the Bridge Loan
Agreement;
(iv) the borrowing by AMI of $125,000,000 in aggregate principal
amount of Term Loans under this Agreement.
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WHEREAS, in connection with the foregoing and to finance the ongoing
working capital needs and general corporate purposes of the Borrower and its
Subsidiaries, the Borrower desires to obtain the following financing facilities
from the Lenders:
(i) a Term Loan Commitment pursuant to which Term Loans, in a maximum
aggregate principal amount not to exceed $125,000,000, may be made to the
Borrower in a single drawing on the Tender Offer Closing Date; provided
that (x) the proceeds of such Term Loans shall be used solely for the
purpose of (1) consummating the Refinancing, (2) refinancing a portion of
any outstanding Bridge Loans on the Merger Closing Date or, to the extent
not used for such purpose, financing the Merger Consideration, and (3)
paying fees, costs and expenses related to the Refinancing and this
Agreement and the other Loan Documents (including prepayment premiums
related to the Refinancing), and (y) as more fully described herein, to the
extent that proceeds of the Term Loans exceed the amount required, as of
the Tender Offer Closing Date, for the purposes set forth in clause (x)
above, such excess shall be placed in escrow (the "Term Loan Escrow") with
the Administrative Agent pursuant to, and for use and release as more fully
described in, this Agreement and the Term Loan Escrow Agreement;
(ii) a Revolving Loan Commitment (to include availability for
Revolving Loans, Swing Line Loans and Letters of Credit) pursuant to which
Borrowings of Revolving Loans, in a maximum aggregate principal amount
(together with all Swing Line Loans and Letter of Credit Outstandings) not
to exceed $40,000,000 will be made to the Borrower from time to time on and
subsequent to the Tender Offer Closing Date but prior to the Revolving Loan
Commitment Termination Date;
(iii) a Letter of Credit Commitment pursuant to which one or more
Issuers will issue Letters of Credit for the account of the Borrower and
its Subsidiaries from time to time on and subsequent to the Tender Offer
Closing Date but prior to the Revolving Loan Commitment Termination Date in
a maximum aggregate Stated Amount at any one time outstanding not to exceed
$[10,000,000]; and
(iv) a Swing Line Loan Commitment pursuant to which Borrowings of
Swing Line Loans in an aggregate outstanding principal amount not to exceed
$[5,000,000] will be made on and subsequent to the Closing Date but prior
to the Revolving Loan Commitment Termination Date;
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth, to extend the Commitments and make Loans to
the Borrower and issue (or participate in) Letters of Credit.
NOW, THEREFORE, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Acquired Person" is defined in clause (m) of Section 7.2.2.
"Acquisition" is defined in the first recital.
"Acquisition Agreement" is defined in the first recital.
"Additional Equity Investment" is defined in the third recital.
"Administrative Agent" is defined in the preamble and includes each other
Person appointed as the successor Administrative Agent pursuant to Section 10.4.
"Affected Lender" is defined in Section 4.10.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person. "Control" of a Person means the power, directly or indirectly, (i) to
vote 10% or more of the Capital Stock (on a fully diluted basis) of such Person
having ordinary voting power for the election of directors, managing members or
general partners (as applicable), or (ii) to direct or cause the direction of
the management and policies of such Person (whether by contract or otherwise).
"Agents" means, unless the context requires otherwise, the Syndication
Agent and the Administrative Agent.
"Agents' Fee Letter" means the confidential letter captioned "Fee Letter",
dated March 16, 2002 (as amended), among the Agents and Holdings.
"Agreement" means, on any date, this Credit Agreement as originally in
effect on the Closing Date and as thereafter amended, supplemented, amended and
restated or otherwise modified from time to time and in effect on such date.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
higher of (i) the Administrative Agent's Base Rate in effect on such day and
(ii) the Federal Funds Rate in effect on such day plus 1/2 of 1%. For purposes
hereof: "Base Rate" shall mean the rate of interest per annum publicly announced
or established from time to time by the Administrative Agent as its base rate in
effect at its principal office in Stamford, Connecticut (the Base Rate not being
intended to be the lowest rate of interest charged by the Administrative Agent
in connection with extensions of credit to debtors) (any change in such rate
announced or established by the Administrative Agent shall take effect at the
opening of business on the day specified in the public announcement of such
change); and "Federal Funds Rate" shall mean, for any day, the weighted average
of the rates (rounded upwards, if necessary, to the nearest 1/100th of 1%) on
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overnight federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York; provided that (x) if the day for
which such rate is to be determined is not a Business Day, the Federal Funds
Rate for such day shall be such rate for such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (y) if
such rate is not so published for any day which is a Business Day, the Federal
Funds Rate for such day shall be the average of the quotations for the day of
such transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it. Any change in the Alternate Base
Rate due to a change in the Base Rate or the Federal Funds Rate shall be
effective as of the opening of business on the effective day of such change in
the Base Rate or the Federal Funds Rate, respectively.
"Alternate Base Rate Loan" means a Loan bearing interest at a fluctuating
rate determined by reference to the Alternate Base Rate.
"AmerCable Disposition" means the disposition, in accordance with Section
7.2.11, of the assets primarily utilized by the Borrower and its Subsidiaries in
connection with the Borrower's "AmerCable" line of business for an amount no
less than fair market value, as determined in good faith by management of the
Borrower.
["Amercord Guaranty" means the Guaranty by AMI of up to $3,000,000 in
principal amount of Indebtedness of Amercord Inc. as set forth in Item 7.2.2(c)
of the Disclosure Schedule.]
"AMI" is defined in the preamble.
"Annualized Basis" means, with respect to the determination of any amount
for any period (for purposes of this definition, the "Subject Period"), the
product obtained by multiplying (i) the amount accrued during the period
commencing with (and including) the Closing Date and ending on the last day of
the Subject Period and (ii) the quotient obtained by dividing (x) 365 by (y) the
number of days from (and including) the Closing Date to (and including) the last
day of the Subject Period.
"Applicable Commitment Fee" means, (i) for each day from the Closing Date
to (but excluding) the later of (x) if applicable, the earlier of (A) the date
the Bridge Loans are repaid in full and (B) the one year anniversary of the
Closing Date, and (y) the date upon which the Compliance Certificate for the
second full Fiscal Quarter ended after the Closing Date is delivered pursuant to
clause (c) of Section 7.1.1, a fee which shall accrue at a rate of 1/2 of 1% per
annum, and (ii) at all times thereafter, a fee which shall accrue at the
applicable rate per annum set forth below under the column entitled "Applicable
Commitment Fee", determined by reference to the applicable Leverage Ratio
referred to below:
Leverage Applicable
Ratio Commitment Fee
-------- --------------
>3.75:1 0.50%
<_3.75:1 0.375%
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The Leverage Ratio used to compute the Applicable Commitment Fee shall be that
set forth in the Compliance Certificate most recently delivered by the Borrower
to the Agents. Changes in the Applicable Commitment Fee resulting from a change
in the Leverage Ratio shall become effective upon delivery by the Borrower to
the Agents of a new Compliance Certificate pursuant to clause (c) of Section
7.1.1. If the Borrower shall fail to deliver a Compliance Certificate by the
delivery due date specified in such clause, the Applicable Commitment Fee from
and including the day immediately following such delivery due date to (but
excluding) the date the Borrower delivers to the Agents a Compliance Certificate
shall conclusively be equal to the highest Applicable Commitment Fee set forth
above.
"Applicable Margin" means, at any time of determination:
(a) with respect to the unpaid principal amount of each Term Loan
maintained as (i) an Alternate Base Rate Loan, 2.75% per annum and (ii) a
Eurodollar Loan, 3.75% per annum;
(b) for each day from the Closing Date to (but excluding) the later of
(x) if applicable, the earlier of (A) the date the Bridge Loans are repaid
in full and (B) the one year anniversary of the Closing Date, and (y) the
date upon which the Compliance Certificate for the second full Fiscal
Quarter ended after the Closing Date is delivered pursuant to clause (c) of
Section 7.1.1, with respect to the unpaid principal amount of (i) each
Swing Line Loan (which shall be borrowed and maintained only as an
Alternate Base Rate Loan) and each Revolving Loan maintained as an
Alternate Base Rate Loan, 2.00% per annum, and (ii) each Revolving Loan
maintained as a Eurodollar Loan, 3.00% per annum; and
(c) at all times after the date referred to in clause (b) above, with
respect to the unpaid principal amount of (i) each Swing Line Loan (which
shall be borrowed and maintained only as an Alternate Base Rate Loan) and
each Revolving Loan maintained as an Alternate Base Rate Loan, the rate
determined by reference to the applicable Leverage Ratio and at the
applicable percentage per annum set forth below under the column entitled
"Applicable Margin for Alternate Base Rate Loans", and (ii) each Revolving
Loan maintained as a Eurodollar Loan, the rate determined by reference to
the applicable Leverage Ratio and at the applicable percentage per annum
set forth below under the column entitled "Applicable Margin for Eurodollar
Loans":
Applicable Margin
For Alternate Base Applicable Margin
Leverage Rate Loans For Eurodollar Loans
-------- ------------------ --------------------
Ratio
>3.75:1 2.00% 3.00%
> 3.25:1 and < 3.75:1 1.75% 2.75%
-
> 2.50:1 and < 3.25:1 1.50% 2.50%
-
< 2.50:1 1.25% 2.25%
-
The Leverage Ratio used to compute any Applicable Margin shall, at any time of
determination, be the Leverage Ratio set forth in the Compliance Certificate
most recently delivered by the Borrower to the Agents. Changes in the Applicable
Margin resulting from a change in the
-6-
Leverage Ratio shall become effective upon delivery by the Borrower to the
Agents of a new Compliance Certificate pursuant to clause (c) of Section 7.1.1.
If the Borrower shall fail to deliver a Compliance Certificate by the delivery
due date specified in such clause, the Applicable Margin from and including the
day immediately following such delivery due date to (but excluding) the date the
Borrower delivers to the Agents a Compliance Certificate shall conclusively be
equal to the highest Applicable Margin set forth above.
"Approved Fund" means any Person (other than a natural Person) that (i) 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, and (ii) is administered or managed by a Lender, an Affiliate of a
Lender which is controlled by such Lender or its parent company or an entity or
an Affiliate of an entity that administers or manages a Lender.
"Assignee Lender" is defined in clause (a) of Section 11.11.
"Assignor Lender" is defined in clause (a) Section 11.11.
"Assumed Indebtedness" is defined in clause (m) of Section 7.2.2.
"Authorized Officer" is defined in clause (b) of Section 5.1.1.
"Borrower" means, at all times prior to the effectiveness of the Merger,
AMI, and at all times thereafter, the Surviving Corporation.
"Borrower Security and Pledge Agreement" means the Security and Pledge
Agreement executed and delivered by an Authorized Officer of the Borrower
pursuant to this Agreement, substantially in the form of Exhibit G-2 hereto, as
amended, supplemented, amended and restated or otherwise modified from time to
time.
"Borrowing" means the Loans of the same type and, in the case of Eurodollar
Loans, having the same Interest Period made by all Lenders required to make such
Loans on the same Business Day and pursuant to the same Borrowing Request in
accordance with Section 2.1.
"Borrowing Request" means a Loan request and certificate duly executed by
an Authorized Officer of the Borrower, substantially in the form of Exhibit B-1
hereto.
"Bridge Loan Agreement" means the bridge loan agreement, dated as of April
[__], 2002, among Mergerco, as borrower thereunder, the lenders party thereto
and UBS AG, Stamford Branch, as administrative agent thereunder, Credit Suisse
First Boston, Cayman Islands Branch, as syndication agent thereunder, CIBC World
Markets, as documentation agent thereunder, and Credit Suisse First Boston
Corporation and UBS Warburg LLC, as joint lead arrangers and joint book-runners
thereunder.
"Bridge Loans" is defined in the third recital.
"Business Day" means (i) any day which is neither a Saturday or Sunday nor
a legal holiday on which banks are authorized or required to be closed in New
York, New York or Dallas, Texas, and (ii) relative to the making, continuing,
prepaying or repaying of any
-7-
Eurodollar Loans, any day which is a Business Day described in clause (i) above
and which is also a day on which dealings in Dollars are carried on in the
London interbank eurodollar market.
"Capital Expenditures" means, for any period, the aggregate amount of all
expenditures of the Borrower and its Subsidiaries for fixed or capital assets
made during such period which, in accordance with GAAP, should be classified as
capital expenditures.
"Capital Stock" means, with respect to any Person, any and all shares,
interests (including membership interests in limited liability companies),
participations, rights (including options, warrants and the like convertible or
exercisable into shares of Capital Stock) or other equivalents (however
designated, whether voting or non-voting) of such Person's capital, whether now
outstanding or issued after the Closing Date.
"Capitalized Lease Liabilities" means all monetary obligations of the
Borrower or any of its Subsidiaries under any leasing or similar arrangement
which have been (or, in accordance with GAAP, should be) classified as
capitalized leases. The amount of such monetary obligations shall be the
capitalized amount thereof, determined in accordance with GAAP, and the stated
maturity thereof shall be the date of the last payment of rent or any other
amount due under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a premium or a penalty.
"Cash Collateralize" means, with respect to a Letter of Credit, the deposit
of immediately available funds into a cash collateral account maintained with
(or on behalf of) the Administrative Agent on terms reasonably satisfactory to
the Administrative Agent in an amount equal to the Stated Amount of such Letter
of Credit.
"Cash Equity Contribution" is defined in the third recital.
"Cash Equivalent Investment" means, at any time:
(a) any direct obligation of (or obligation unconditionally guaranteed
by) the United States of America or a State thereof (or any agency or
political subdivision thereof, to the extent such obligations are supported
by the full faith and credit of the United States of America or a State
thereof) maturing not more than six months after such time;
(b) commercial paper maturing not more than 180 days from the date of
issue, which is issued by (i) a corporation (other than an Affiliate of any
Obligor) organized under the laws of any State of the United States or of
the District of Columbia and rated A-1 or higher by S&P or P-1 or higher by
▇▇▇▇▇'▇, or (ii) any Lender (or its holding company);
(c) any certificate of deposit, time deposit, money market deposit or
bankers acceptance, maturing not more than six months after its date of
issuance, which is issued by either (i) any bank organized under the laws
of the United States (or any State thereof or the District of Columbia) and
(in either case) which has (x) a credit rating of A or higher from S&P or
A2 or higher from ▇▇▇▇▇'▇ and (y) a combined capital and surplus greater
than $500,000,000, or (ii) any Lender;
-8-
(d) any repurchase agreement having a term of 7 days or less entered
into with any Lender or any commercial banking institution satisfying the
criteria set forth in clause (c)(i) above which (i) is secured by a fully
perfected security interest in any obligation of the type described in
clause (a), and (ii) has a market value at the time such repurchase
agreement is entered into of not less than 100% of the repurchase
obligation of such commercial banking institution thereunder; or
(e) investments in money market funds substantially all of whose
assets are comprised of the securities of the types described in clauses
(a) through (d) above.
"Cash on Hand" is defined in the third recital.
"Casualty Event" means the damage, destruction or condemnation, as the case
may be, of any property of the Borrower, Holdings or any of their respective
Subsidiaries.
"Casualty Proceeds" means, with respect to any Casualty Event, the amount
of any insurance proceeds or condemnation awards received by the Borrower,
Holdings or any of their respective Subsidiaries in connection therewith, but
excluding (i) any proceeds from business interruption insurance, (ii) any
proceeds or awards required to be paid to a creditor (other than any Secured
Party) which holds a first-priority Lien permitted by Section 7.2.3 on the
property which is the subject of such Casualty Event and (iii) any such proceeds
received in respect of any Casualty Event (or any series of related Casualty
Events) not exceeding $100,000 in respect of any such event (or series of
related events) or $500,000 in the aggregate for all Casualty Events since the
Closing Date.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Change in Control" means
(a) (i) until the Merger Closing Date, any Person other than Holdings
shall own any Capital Stock of Mergerco or otherwise have the ability to
elect any members of the Board of Directors of Mergerco, and (ii) at all
times from and after the Merger Closing Date, any Person other than
Holdings shall own any Capital Stock of the Borrower or otherwise have the
ability to elect any members of the Board of Directors of the Borrower; or
(b) at all times from the Closing Date until the Merger Closing Date,
Mergerco shall own less than the greater of (x) a majority of the Capital
Stock of the Borrower and (y) that percentage of the Capital Stock of the
Borrower tendered to (and purchased by) Mergerco on the Tender Offer
Closing Date pursuant to the Tender Offer, in each case on a fully diluted
basis, or shall fail to have the right to elect or designate for election
the number of members of the Board of Directors of the Borrower which would
hold a majority of the votes of such Board of Directors; or
-9-
(c) at all times prior to a Qualified IPO, the Permitted Holders shall
fail to have the right to elect or designate for election the number of
members of the Board of Directors (or similar managing body) of Holdings
which would hold a majority of the votes of such Board of Directors; or
(d) at all times prior to a Qualified IPO, the Permitted Holders shall
cease to own at least 51% of the Capital Stock of Holdings held by the
Permitted Holders on the Closing Date after giving effect to the
Transaction; or
(e) at all times from and after a Qualified IPO, any person or group
(within the meaning of Sections 13(d) and 14(d) under the Exchange Act),
other than Harvest Partners, (i) shall become the ultimate "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of (x) Voting Stock representing more than 30% of
the Voting Stock of Holdings on a fully diluted basis at any time when the
Permitted Holders own a lesser percentage of such Voting Stock on a fully
diluted basis or (y) Capital Stock representing more than 30% of the
Capital Stock of Holdings on a fully diluted basis at any time when the
Permitted Holders own a lesser percentage of such Capital Stock on a fully
diluted basis or (ii) shall have the right or the ability by voting right,
contract or otherwise to elect or designate for election a majority of the
Board of Directors (or similar managing body) of Holdings or such number of
members of such Board of Directors which would hold a majority of the votes
of such Board of Directors; or
(f) at all times from and after a Qualified IPO, during any period of
24 consecutive months, individuals who at the beginning of such period
constituted the Board of Directors (or similar managing body) of Holdings
(together with any new directors whose election to such Board or whose
nomination for election by the holders of the Capital Stock of Holdings was
approved by a vote of a majority of the directors then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors (or similar managing body)
of Holdings then in office; or
(g) the occurrence of any "Change of Control" (or similar term) under
(and as defined in) any Other Debt Document in respect of any Unsecured
Transaction Debt.
"Closing Date" means the date of the initial Credit Extension hereunder.
"Closing Date Certificate" means the closing date certificate executed and
delivered by Holdings, Mergerco and AMI pursuant to the terms of this Agreement,
substantially in the form of Exhibit D hereto.
"Code" means the Internal Revenue Code of 1986, and the final and temporary
regulations thereunder, in each case as amended, reformed or otherwise modified
from time to time.
"Collateral Document" means any Security and Pledge Agreement, any Mortgage
or any other agreement or document delivered pursuant hereto or in connection
herewith pursuant to
-10-
which the Secured Parties or any Agent or other Person on behalf of the Secured
Parties is granted a Lien to secure any Obligations.
"Commitment" means, as the context may require, a Lender's Term Loan
Commitment, Revolving Loan Commitment or Letter of Credit Commitment, or the
Swing Line Lender's Swing Line Loan Commitment.
"Commitment Amount" means, as the context may require, the Term Loan
Commitment Amount, the Revolving Loan Commitment Amount, the Letter of Credit
Commitment Amount or the Swing Line Loan Commitment Amount.
"Commitment Letter" means the confidential letter captioned "Bank and
Bridge Facility Commitment Letter", dated March 16, 2002, between the Agents and
Holdings, together with all annexes thereto.
"Commitment Termination Date" means, as the context may require, the Term
Loan Commitment Termination Date or the Revolving Loan Commitment Termination
Date.
"Commitment Termination Event" means (i) the occurrence of any Event of
Default described in clauses (a) through (d) of Section 8.1.9, or (ii) the
occurrence and continuance of any other Event of Default and either (x) the
declaration of all or any portion of the Loans to be due and payable pursuant to
Section 8.3, or (y) the giving of notice by the Administrative Agent, acting at
the direction of the Required Lenders, to the Borrower that the Commitments
referred to in such notice have been terminated.
"Compliance Certificate" means a certificate duly completed and executed by
the chief financial or accounting Authorized Officer of Holdings or the
Borrower, as the case may be, substantially in the form of Exhibit E hereto,
together with such changes thereto as the Agents may from time to time
reasonably request for the purpose of conforming the terms thereof with the
terms hereof.
"Contingent Liability" means any agreement, undertaking or arrangement by
which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the Indebtedness of any
other Person (other than by endorsements of instruments in the course of
collection), or guarantees the payment of dividends or other distributions upon
the Capital Stock of any other Person; provided that Contingent Liabilities
shall not include customary indemnities set forth in agreements entered into in
the ordinary course of business between the Borrower and its Subsidiaries, on
the one hand, and their customers on the other hand. The amount of any Person's
obligation under any Contingent Liability shall (subject to any limitation set
forth therein) be deemed to be the outstanding principal amount of the debt,
obligation or other liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of Exhibit C hereto.
-11-
"Controlled Group" means all members of a controlled group of corporations
and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with the Borrower, are
treated as a single employer under Section 414(b) or 414(c) of the Code or
Section 4001 of ERISA.
"Copyright Security Agreement" means any Copyright Security Agreement
executed and delivered by any Obligor in substantially the form of Exhibit D to
the applicable Security and Pledge Agreement, as amended, supplemented, amended
and restated or otherwise modified from time to time.
"Credit Extension" means, as the context may require, (i) the making of a
Loan by a Lender, or (ii) the issuance of any Letter of Credit, or the extension
of any Stated Expiry Date of any existing Letter of Credit, by an Issuer.
"Credit Extension Request" means, as the context may require, any Borrowing
Request or Issuance Request.
"Current Assets" means, on any date, without duplication, all assets which,
in accordance with GAAP, would be included as current assets on a consolidated
balance sheet of Holdings and its Subsidiaries at such date as current assets.
"Current Liabilities" means, on any date, without duplication, all amounts
which, in accordance with GAAP, would be included as current liabilities on a
consolidated balance sheet of Holdings and its Subsidiaries at such date,
excluding current maturities of Indebtedness.
"Debt Tender" means the tender offer and consent solicitation initiated by
AMI to effect the Refinancing.
"Default" means any Event of Default or any condition, occurrence or event
which, after notice or lapse of time or both, would constitute an Event of
Default.
"DGCL" is defined in Section 5.1.6.
"Disbursement" is defined in Section 2.6.2.
"Disbursement Date" is defined in Section 2.6.2.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I as it may be amended, supplemented, amended and restated or otherwise
modified from time to time by the Borrower with (unless otherwise provided
hereunder) the written consent of the Required Lenders.
"Disposition" (or similar words such as "Dispose") means any sale,
transfer, lease, contribution or other conveyance (including by way of merger)
of, or the granting of options, warrants or other rights to, any of the
Borrower's or its Subsidiaries' assets (including accounts receivables and
Capital Stock of Subsidiaries) to any Person other than to the Borrower or
another Subsidiary in a single transaction or series of related transactions.
-12-
"Documentation Agent" is defined in the preamble.
"Dollar" and the sign "$" mean lawful money of the United States.
"Domestic Office" means the office of a Lender designated as its "Domestic
Office" on its signature page hereto or in a Lender Assignment Agreement, or
such other office within the United States as may be designated from time to
time by notice from such Lender to the Agents and the Borrower.
"Domestic Subsidiary" means any Subsidiary that is not a Foreign
Subsidiary.
"EBITDA" means, with respect to any Person for any applicable period, the
sum of
(a) Net Income of such Person,
plus
(b) to the extent deducted in determining such Net Income, the sum of
(i) all non-cash charges, (ii) income tax expense (whether paid or
deferred), (iii) Interest Expense and non-cash interest expense, (iv) fees,
costs, expenses and prepayment premiums paid by Holdings or any of its
Subsidiaries in respect of the Transaction in an amount not exceeding
$32,500,000, and (v) amounts attributable to amortization and depreciation
of assets,
minus
(c) to the extent included in such Net Income, non-cash credits.
"ECF Percentage" means, for purposes of determining the amount of any
mandatory prepayment (pursuant to clause (f) of Section 3.1.1) in respect of
Excess Cash Flow (if any) for any Fiscal Year, (i) 75%, in the event the
Leverage Ratio as of the last day of such Fiscal Year is greater than 3.5 to
1.0, (ii) 50%, in the event the Leverage Ratio for such Fiscal Year is equal to
or less than 3.5 to 1.0, and (iii) 0%, in the event the Leverage Ratio for such
Fiscal Year is less than 2.0 to 1.0.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a Lender which
is controlled by such Lender or its parent company; (iii) an Approved Fund; or
(iv) any other Person (other than a natural Person) approved (in the case of
this clause (iv)) by the Agents, the Issuers (but only in the case of any
assignment of the Revolving Loan Commitment) and, unless (x) such Person is
taking delivery of an assignment in connection with physical settlement of a
credit derivatives transaction, (y) the assignment is being made to such Person
by an Agent during the Primary Syndication or (z) an Event of Default has
occurred and is continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed); provided that in the case of any assignment
of Revolving Loan Commitments and related participations in Letters of Credit,
Letter of Credit Outstandings and Swing Line Loans to a Lender that does not,
immediately prior to such assignment, have a Revolving Loan Commitment, or any
Affiliates of, or any Approved Funds related to, such Lender, such Lender shall
not be an Eligible Assignee without the prior approval of the Administrative
Agent.
-13-
"Environmental Laws" means the common law and all applicable federal, state
or local statutes, laws, ordinances, codes, rules, regulations and guidelines
having the force and effect of law (including consent decrees and administrative
orders) relating to public health and safety, or pollution or protection of the
environment (including ambient air, surface water, groundwater, soil, subsurface
strata and natural resources such as flora and fauna) including without
limitation the Clean Air Act, as amended, CERCLA, the Superfund Amendments and
Reauthorization Act of 1986, as amended, the Resource Conservation and Recovery
Act ("RCRA"), the Toxic Substances Control Act of 1976, as amended, the Federal
Water Pollution Control Act Amendments of 1972, the Clean Water Act of 1977, as
amended, the Hazardous Materials Transportation Act, as amended, and any other
law having a similar subject matter.
"Environmental Permit" is defined in clause (d) of Section 6.1.12.
"Equity Bridge Loans" is defined in the third recital.
"Equity Bridge Notes" means promissory notes which evidence and govern all
terms, conditions and agreements in respect of the Equity Bridge Loans, which
notes shall (i) contain no covenants, defaults or similar provisions which shall
have any force or effect until all Obligations have been repaid in full, (ii)
have a stated maturity date no earlier than, and shall require no cash payments
of principal, interest or other amounts until, [April 30], 2014, (iii) contain
Subordination Provisions no less favorable to the Secured Parties than those set
forth on Exhibit J hereto, (iv) only be exchangeable for common stock of
Holdings or pay-in-kind Preferred Stock of Holdings (the "Holdings PIK Preferred
Stock") in a form, and having terms and conditions, satisfactory to the Agents,
and (v) otherwise be reasonably satisfactory to the Agents.
"Equity Investment" is defined in the third recital.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to Sections of ERISA also refer to any successor Sections thereto.
"Eurocurrency Reserve Requirements" means, for any Interest Period as
applied to a Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on the first
day of such Interest Period (including basic, supplemental, marginal and
emergency reserves under any regulations of the Federal Reserve Board or other
Governmental Authority having jurisdiction with respect thereto) dealing with
reserve requirements prescribed for eurocurrency funding (currently referred to
as "Eurocurrency Liabilities" in Regulation D of the Federal Reserve Board)
maintained by a member bank of the Federal Reserve System.
"Eurodollar Base Rate" means, with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum determined on the
basis of the rate for deposits in Dollars for a period equal to such Interest
Period commencing on the first day of such Interest Period appearing on Page
3750 of the Telerate System Incorporated Service screen as of 11:00 A.M., London
time, two Business Days prior to the beginning of such Interest Period. In the
event that such rate does not appear on Page 3750 of the Telerate System
Incorporated Service screen (or such other page as may replace such page on such
service for the purpose of displaying the rates at which dollar deposits are
offered by leading banks in the London interbank deposit market), the
"Eurodollar Base Rate" for purposes of this definition shall be determined by
reference to such other comparable publicly available service for displaying
eurodollar rates as may be selected by the Administrative Agent or, in the
absence of such availability, by reference to the rate at which the
Administrative Agent is offered Dollar deposits at or about 11:00 A.M., London
time, two Business Days prior to the beginning of such Interest Period in the
interbank eurodollar market where its eurodollar and foreign currency and
exchange operations are then being conducted for delivery on the first day of
such Interest Period for the number of days comprised therein.
-14-
"Eurodollar Lending Office" means, as to any Lender, the office of such
Lender which shall be making or maintaining Eurodollar Loans.
"Eurodollar Loan" means, any Loans which carries or maintains a rate of
interest based upon a Eurodollar Rate.
"Eurodollar Rate" means, with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for such day
in accordance with the following formula (rounded upward to the nearest 1/100th
of 1%):
Eurodollar Base Rate
-----------------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default" is defined in Section 8.1.
"Excess Cash Flow" means, for any Fiscal Year, the excess (if any), of
(a) the sum of (i) EBITDA for such Fiscal Year of Holdings and its
Subsidiaries, and (ii) the amount of any net decrease in Current Assets,
other than cash and Cash Equivalents, over Current Liabilities of Holdings
and its Subsidiaries for such Fiscal Year
over
(b) the sum (for such Fiscal Year), without duplication, of (i)
Interest Expense paid in cash by Holdings and its Subsidiaries, (ii)
voluntary prepayments and scheduled principal repayments, to the extent
actually made, of Term Loans pursuant to clauses (a) and (c) of Section
3.1.1, (iii) to the extent included in EBITDA, any portion of the amount of
cash gains of Holdings and its Subsidiaries applied toward the repayment of
Term Loans pursuant to clause (d) or (e) of Section 3.1.1, (iv) repayment
of Revolving Loans or Swing Line Loans or Cash Collateralization of Letter
of Credit Outstandings pursuant to clause (b) of Section 3.1.1, (v)
voluntary prepayments of Revolving Loans or Swing Line Loans or any
voluntary Cash Collateralization of Letter of Credit Outstandings, in each
case to the extent accompanied by a permanent reduction in the Revolving
Loan Commitment Amount, (vi) without duplication, (A) all income Taxes paid
in cash by Holdings and its Subsidiaries (less any cash tax refunds
received), (B) all Restricted Payments made in cash by or to Holdings
pursuant to clauses (a) and (b) (to the extent financed with internally
generated cash flow of the Borrower and its Subsidiaries or with Revolving
Loans or Swingline Loans) of Section 7.2.6 (in each case, to the extent
that such amounts have not already reduced EBITDA), (vii) Capital
Expenditures made in cash by Holdings and its Subsidiaries in such Fiscal
Year to the extent financed with internally generated cash flow of Holdings
and its Subsidiaries or with Revolving Loans or Swingline Loans, (viii) the
aggregate amount of cash expended by Holdings and its Subsidiaries during
such Fiscal Year in respect of Permitted Acquisitions to the extent
financed with internally generated cash flow of Holdings and its
Subsidiaries or with Revolving Loans or Swingline Loans, and (ix) the
amount of the
-15-
net increase of Current Assets, other than cash and Cash Equivalent
Investments, over Current Liabilities of Holdings and its Subsidiaries for
such Fiscal Year.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exemption Certificate" is defined in clause (e) of Section 4.6.
"Existing Credit Agreement" means the Second Amended and Restated Loan and
Security Agreement, dated as of April 2, 1996, between AMI and Society National
Bank, as amended, supplemented, amended and restated or otherwise modified from
time to time prior to the Closing Date.
"Existing Notes" is defined in the second recital.
"Existing Notes Indenture" means the Indenture dated as of March 1, 1998,
between AMI and U.S. Trust Company of Texas, N.A., as trustee.
"Filing Agent" is defined in Section 5.1.22.
"Filing Statements" is defined in Section 5.1.22.
"Fiscal Quarter" means a quarter ending on the last day of March, June,
September or December.
"Fiscal Year" means any period of twelve consecutive calendar months ending
on December 31; references to a Fiscal Year with a number corresponding to any
calendar year (e.g., the "2002 Fiscal Year") refer to the Fiscal Year ending on
December 31, of such calendar year.
"Fixed Charge Coverage Ratio" means, as of the close of any Fiscal Quarter,
the ratio computed for the period consisting of such Fiscal Quarter and each of
the three immediately preceding Fiscal Quarters of:
(a) (i) EBITDA (for all such Fiscal Quarters) of Holdings and its
Subsidiaries minus all Capital Expenditures of the Borrower and its
Subsidiaries made during such period (other than Capital Expenditures to
the extent funded from the proceeds of (i) an incurrence of Indebtedness,
(ii) an issuance of Capital Stock or a capital contribution or (iii) an
asset sale or a Casualty Event);
to
(b) to the extent included in EBITDA for such Fiscal Quarters, the sum
(for all such Fiscal Quarters) of, without duplication, (i) Interest
Expense of Holdings and its Subsidiaries during such period, (ii) scheduled
principal repayments of Indebtedness of Holdings and its Subsidiaries
required to be made in cash during such period, and (iii) all income
Taxes paid in cash by Holdings and its Subsidiaries during such period (net
of any cash refunds received during such period); provided that in the
event the applicable
-16-
four-Fiscal-Quarter period would include any period of time prior to the
Closing Date, the amounts referred to in subclauses (i) and (iii) of this
clause (b) shall be determined, for the purposes of this clause (b), on an
Annualized Basis.
"Foreign Pledge Agreement" means any supplemental pledge agreement governed
by the laws of a jurisdiction other than the United States or a State thereof
executed and delivered by the Borrower or any of its Subsidiaries pursuant to
the terms of this Agreement, in form and substance reasonably satisfactory to
the Agents, as may be necessary or desirable under the laws of organization or
incorporation of a Subsidiary to further protect or perfect the Lien on and
security interest in any Collateral (as defined in the Security and Pledge
Agreement).
"Foreign Subsidiary" means any Subsidiary of the Borrower which is
organized under the laws of any jurisdiction outside of the United States of
America.
"F.R.S. Board" means the Board of Governors of the Federal Reserve System
or any successor thereto.
"GAAP" is defined in Section 1.4.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
such governments.
"Granting Bank" is defined in clause (f) of Section 11.11.
"Guarantors" means, collectively, Holdings, Mergerco and each Subsidiary
Guarantor.
"Guaranty" means, as the context may require, the Holdings Guaranty, the
Mergerco Guaranty or the Subsidiary Guaranty.
"Harvest Partners" is defined in the third recital.
"Hazardous Material" means (i) any "hazardous substance", as defined by
CERCLA, (ii) any "waste", as defined by the Resource Conservation and Recovery
Act, as amended, (iii) any solid waste that is generated in the diagnosis,
treatment (e.g., provision of medical services) or immunization of human beings
or animals, in research pertaining thereto, or in the production or testing of
biologicals, and (iv) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material or substance (including, without limitation, crude oil
and any petroleum product) subject to regulation, or which can give rise to
liability, under any Environmental Law.
"Hedging Obligations" means, with respect to any Person, all liabilities of
such Person under currency exchange agreements, interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements, and, without
limiting the generality of the foregoing, all other agreements or arrangements
designed to protect such Person against fluctuations in interest rates or
currency exchange rates.
-17-
"herein", "hereof", "hereto", "hereunder" and similar terms contained in
any Loan Document refer to such Loan Document as a whole and not to any
particular Section, paragraph or provision of such Loan Document.
"Holdings" is defined in the preamble.
"Holdings Guaranty" means the Obligations of Holdings undertaken pursuant
to Article IX.
"Holdings Pledge Agreement" means the Security and Pledge Agreement
executed and delivered by an Authorized Officer of Holdings pursuant to this
Agreement, substantially in the form of Exhibit G-1 hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Impermissible Qualification" means any qualification or exception to the
opinion or certification of any independent public accountant as to any
financial statement of Holdings, the Borrower or any other Obligor (i) which is
of a "going concern" or similar nature, (ii) which relates to the limited scope
of examination of matters relevant to such financial statement, or (iii) which
relates to the treatment or classification of any item in such financial
statement and which, as a condition to its removal, would require an adjustment
to such item the effect of which would be to cause Holdings, the Borrower or
such other Obligor to be in Default.
"including" and "include" means including without limiting the generality
of any description preceding such term, and, for purposes of each Loan Document,
the parties hereto agree that the rule of ejusdem generis shall not be
applicable to limit a general statement, which is followed by or referable to an
enumeration of specific matters, to matters similar to the matters specifically
mentioned.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money or advances and
all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments;
(b) all obligations, contingent or otherwise, relative to the face
amount of all letters of credit, whether or not drawn, and banker's
acceptances issued for the account of such Person;
(c) all Capitalized Lease Liabilities of such Person;
(d) all net liabilities of such Person under all Hedging Obligations;
(e) whether or not so included as liabilities in accordance with GAAP,
all obligations of such Person to pay the deferred purchase price of
property or services (excluding trade accounts payable in the ordinary
course of business) and indebtedness secured by (or for which the holder of
such indebtedness has an existing right, contingent or otherwise, to be
secured by) a Lien on property owned or being acquired by such
-18-
Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall have
been assumed by such Person or is limited in recourse (provided that to the
extent such indebtedness is not assumed by such Person or the recourse
against such Person by the obligee of such indebtedness is limited to the
assets so secured, the amount of such indebtedness shall be deemed to be
the lesser of (x) the aggregate amount of such indebtedness and (y) the
fair market value of the assets securing such indebtedness);
(f) all obligations arising under Synthetic Leases of such Person;
(g) all Redeemable Capital Stock of such Person; and
(h) all Contingent Liabilities of such Person in respect of any of the
foregoing.
The Indebtedness of any Person shall include, without duplication, the
Indebtedness of any other entity (including any partnership in which such Person
is a general partner) to the extent such Person is liable therefor as a result
of such Person's ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such Person is
not liable therefor.
"Indemnified Liabilities" is defined in Section 11.4.
"Indemnified Parties" is defined in Section 11.4.
"Interco Subordination Agreement" means the Intercompany Subordination
Agreement, substantially in the form of Exhibit J hereto, executed and delivered
by two or more Obligors pursuant to the terms of this Agreement, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Intercompany Note" means, with respect to the Borrower or any of its
Subsidiaries, as the maker thereof, a promissory note substantially in the form
of Exhibit A to the relevant Security and Pledge Agreement (with such
modifications as the Administrative Agent may consent to, such consent not to be
unreasonably withheld), which promissory note shall be duly endorsed and pledged
by the payee in favor of the Administrative Agent.
"Interest Coverage Ratio" means, as of the last day of any Fiscal Quarter,
the ratio computed for the period consisting of such Fiscal Quarter and each of
the three immediately preceding Fiscal Quarters of:
(a) EBITDA (for all such Fiscal Quarters) of Holdings and its
Subsidiaries
to
(b) the sum (for all such Fiscal Quarters) of Interest Expense of
Holdings and its Subsidiaries paid or payable during such period; provided
that in the event the applicable four-Fiscal-Quarter period would include
any period of time prior to the Closing Date, Interest Expense for the
purposes of this clause (b) shall be determined on an Annualized Basis.
-19-
"Interest Expense" means, with respect to any Person for any Fiscal
Quarter, the aggregate interest expense (both accrued and paid) of such Person
and its Subsidiaries for such Fiscal Quarter that has been paid or is payable in
cash, including the portion of any payments made in respect of Capitalized Lease
Liabilities allocable to interest expense (net of investment interest income
paid during such period to Holdings or any of its Subsidiaries).
"Interest Period" means, relative to any Eurodollar Loan, the period
beginning on (and including) the date on which such Eurodollar Loan is made or
continued as, or converted into, a Eurodollar Loan pursuant to Sections 2.3 or
2.4 and shall end on (but exclude) the day which numerically corresponds to such
date one, two, three, six, or if then available to each applicable Lender, nine
or twelve months thereafter (or, if such month has no numerically corresponding
day, on the last Business Day of such month), as the Borrower may select in its
relevant notice pursuant to Sections 2.3 or 2.4; provided that (i) the Borrower
shall not be permitted to select Interest Periods to be in effect at any one
time which have expiration dates occurring on more than ten different dates,
(ii) if such Interest Period would otherwise end on a day which is not a
Business Day, such Interest Period shall end on the next following Business Day
(unless such next following Business Day is the first Business Day of a calendar
month, in which case such Interest Period shall end on the Business Day next
preceding such numerically corresponding day), (iii) no Interest Period for any
Loan may end later than the Stated Maturity Date for such Loan and (iv) during
the Primary Syndication, only seven day Interest Periods will be permitted.
"Investment" means, relative to any Person, (i) any loan, advance or
extension of credit made by such Person to any other Person, including (A) the
issuance of any letter of credit with respect to which such Person is obligated
to reimburse the issuer thereof for drawings thereunder and any other Person is
the account party with respect to such letter of credit and (B) the purchase by
such Person of any bonds, notes, debentures or other debt securities of any
other Person (exclusive of receivables owing to such Person to the extent
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms of such Person), and (ii)
any Capital Stock held by such Person in any other Person. The amount of any
Investment shall be the original principal or capital amount thereof less all
returns of principal or equity thereon and shall, if made by the transfer or
exchange of property other than cash, be deemed to have been made in an original
principal or capital amount equal to the fair market value of such property at
the time of such Investment.
"Investors" is defined in the third recital.
"ISP Rules" is defined in Section 11.9.
"Issuance Request" means a Letter of Credit request and certificate duly
executed by an Authorized Officer of the Borrower, substantially in the form of
Exhibit B-2 hereto.
"Issuer" means the Administrative Agent in its capacity as Issuer of the
Letters of Credit and, at the request of the Administrative Agent and with the
Borrower's consent, one or more other Lenders or Affiliates of the
Administrative Agent.
"Joint Lead Arrangers" is defined in the preamble.
-20-
"Lender Assignment Agreement" means an assignment agreement substantially
in the form of Exhibit K hereto.
"Lender Default" means (i) the refusal (which has not been retracted) or
other failure of a Lender to make available its portion of any Borrowing or to
fund its portion of any unreimbursed payment under Section 2.6.1 or (ii) a
Lender having notified the Borrower or the Administrative Agent in writing that
it does not intend to comply with its obligations under Section 2.1 or 2.6.1,
including in either case as a result of any takeover of such Lender by any
Governmental Authority.
"Lenders" is defined in the preamble and includes each Person that becomes
a Lender pursuant to Section 11.11.
"Lender's Environmental Liability" means any and all losses, liabilities,
obligations, penalties, claims, litigation, demands, defenses, costs, judgments,
suits, proceedings, damages (including consequential damages), disbursements or
expenses of any kind or nature whatsoever (including reasonable attorneys' fees
at trial and appellate levels and experts' fees and disbursements and expenses
incurred in investigating, defending against or prosecuting any litigation,
claim or proceeding) which may at any time be imposed upon, incurred by or
asserted or awarded against any Agent, any Lender, any Issuer or any of such
Person's Affiliates, shareholders, directors, officers, employees, and agents in
connection with or arising from:
(a) any Hazardous Material on, in, under or affecting all or any
portion of any property of the Borrower or any of its Subsidiaries, the
groundwater thereunder, or any surrounding areas thereof to the extent
caused by Releases from the Borrower's or any of its Subsidiaries' or any
of their respective predecessors' properties;
(b) any misrepresentation, inaccuracy or breach of any warranty,
contained or referred to in Section 6.13;
(c) any violation or claim of violation by the Borrower or any of its
Subsidiaries of any Environmental Laws; or
(d) the imposition of any lien for damages caused by or the recovery
of any costs for the cleanup, Release or threatened Release of Hazardous
Material by the Borrower or any of its Subsidiaries, or in connection with
any property owned or formerly owned by the Borrower or any of its
Subsidiaries.
"Letter of Credit" is defined in Section 2.1.2.
"Letter of Credit Commitment" means each Issuer's obligation to issue
Letters of Credit pursuant to Section 2.1.2 and, with respect to each Revolving
Loan Lender, the obligations of each such Lender to participate in such Letters
of Credit pursuant to Section 2.6.1.
"Letter of Credit Commitment Amount" means, on any date, a maximum amount
of $[10,000,000], as such amount may be permanently reduced from time to time
pursuant to Section 2.2.
-21-
"Letter of Credit Outstandings" means, on any date, an amount equal to the
sum of (i) the then aggregate amount which is undrawn and available under all
issued and outstanding Letters of Credit, and (ii) the then aggregate amount of
all unpaid and outstanding Reimbursement Obligations.
"Leverage Ratio" means, as of the last day of any Fiscal Quarter, the ratio
of
(a) Total Debt outstanding on the last day of such Fiscal Quarter
to
(b) EBITDA of Holdings and its Subsidiaries computed for the period
consisting of such Fiscal Quarter and each of the three immediately
preceding Fiscal Quarters.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against property, or other priority or preferential arrangement of any
kind or nature whatsoever, to secure payment of a debt or performance of an
obligation.
"Loan" means, as the context may require, a Revolving Loan, a Term Loan or
a Swing Line Loan of any type.
"Loan Documents" means, collectively, (i) this Agreement, the Letters of
Credit, the Notes, the Agents' Fee Letter (solely for purposes of Article VIII
and Section 11.9), each Collateral Document and the provisions of the Commitment
Letter relating to the syndication of the Commitments and the Loans and (ii)
each other agreement, certificate, document or instrument delivered in
connection with any Loan Document and designated to be a "Loan Document",
whether or not specifically mentioned herein or therein, including, solely for
purposes of the Collateral Documents and the Guaranties, all Rate Protection
Agreements.
["Management Agreement" means the management agreement, dated as of [____],
between AMI and Harvest Partners, as amended, supplemented, amended and restated
or otherwise modified in accordance with this Agreement.]
"Management Investors" is defined in clause (m) of Section 7.2.5.
"Management Loans" is defined in clause (m) of Section 7.2.5.
"Management Shares" is defined in clause (m) of Section 7.2.5.
"Margin Stock" means, as at any time of determination, Shares owned by
Mergerco which were purchased by Mergerco in the Tender Offer and, at such time
of determination, constitute "margin stock", as defined in F.R.S. Board
Regulation U; provided that, immediately upon the effectiveness of the Merger,
all Shares shall cease to be Margin Stock.
-22-
"Material Adverse Effect" means the following:
(i) at all times prior to the Merger Closing Date and solely with
respect to any representation or warranty made (or to be made) or deemed
(or to be deemed) to be made in connection with any Borrowing of Term Loans
for the purpose of financing the Debt Tender or the Refinancing, or for the
purpose of financing part of the Merger Consideration or to repay a portion
of the outstanding Bridge Loans, Pre-Merger Material Adverse Effect; and
(ii) with respect to any other purpose hereunder at any time,
Post-Merger Material Adverse Effect.
"Material Subsidiary" means each Subsidiary of the Borrower other than a
Non-Material Subsidiary.
"Material Transaction Documents" means each of the Acquisition Agreement,
each Other Debt Document relating to the Unsecured Transaction Debt, the
Management Agreement and all other agreements, instruments, certificates,
filings, consents, approvals, board of directors resolutions, opinions and other
documents furnished pursuant to or in connection with the Transaction (including
the documents relating to the issuance of the Equity Investment) and the other
transactions contemplated hereby or thereby (other than documents not material
to any aspect of the Transaction), in each case as amended, supplemented,
amended and restated or otherwise modified from time to time in accordance with
this Agreement.
"Merger" is defined in the first recital.
"Merger Closing Date" means the date of the consummation of the Merger.
"Merger Consideration" is defined in the first recital.
"Mergerco" is defined in the first recital.
"Mergerco Debt Financing" is defined in the third recital.
"Mergerco Guaranty" means the guaranty executed and delivered by Mergerco
pursuant to the terms of this Agreement, substantially in the form of Exhibit
F-1 hereto, as amended, supplemented, amended and restated or otherwise modified
from time to time.
"Minimum Condition" is defined in the first recital.
"Minimum Debt Tender Condition" means that, as a result of the Debt Tender
and Refinancing, each of the following shall have been completed or satisfied on
or prior to the Closing Date:
(a) holders of a sufficient aggregate principal amount of Existing
Notes have irrevocably consented to eliminate all covenants and related
events of default described in Sections [1.3, 1.4, 1.5, 1.6 and 1.7] of the
Supplemental Indenture;
-23-
(b) AMI shall have repurchased and redeemed for cash all Existing
Notes, together with all related interest, prepayment, premiums and other
amounts due and payable thereon, which have been tendered to AMI for
repurchase or redemption pursuant to the Debt Tender and Refinancing;
(c) after giving effect to such repurchase or redemption of the
Existing Notes described in clause (b) above and the defeasance described
in clause (d) below, not more than $5,000,000 in aggregate outstanding
principal amount of Existing Notes shall remain outstanding and undefeased
(in accordance with the terms and provisions of the Existing Notes
Indenture);
(d) in the event the aggregate principal amount of Existing Notes
which remain outstanding on the Closing Date after giving effect to the
Debt Tender and Refinancing exceeds $5,000,000, such excess principal
amount of Existing Notes shall have been fully defeased pursuant to and in
accordance with Section 11.02 of the Existing Notes Indenture, and the
amount of such excess shall have been fully escrowed or cash collateralized
(in accordance with such Section 11.04) with proceeds from the Term Loans;
and
(e) AMI and the trustee under the Existing Notes Indenture shall have
entered into, executed and delivered the Supplemental Indenture in the form
delivered pursuant to Section 5.1.5.
"Minimum Shares" is defined in the first recital.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgage" means each mortgage, deed of trust or agreement executed and
delivered by any Obligor in favor of the Administrative Agent for the benefit of
the Secured Parties pursuant to the requirements of this Agreement, under which
a Lien is granted on the real property and fixtures described therein, in form
and substance reasonably satisfactory to the Agents, in each case as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Net Debt Proceeds" means with respect to the incurrence, sale or issuance
by Holdings or any of its Subsidiaries of any Indebtedness (other than any
Indebtedness permitted by Section 7.2.2, but including Unsecured Transaction
Debt), the excess of:
(a) the gross cash proceeds received by such Person from such
incurrence, sale or issuance,
over
(b) all customary underwriting commissions and discounts and customary
legal, investment banking, brokerage and accounting and other professional
fees, sales commissions and disbursements actually incurred in connection
with such incurrence, sale or issuance which have not been paid to Harvest
Partners or any of its Affiliates in connection therewith (other than those
fees set forth in the Management Agreement).
-24-
"Net Disposition Proceeds" means, with respect to any Disposition of any
assets of Holdings or any of its Subsidiaries (other than Dispositions permitted
pursuant to clause (a), (b), (c), (e), (g) , (h) , (i) or (j) of Section
7.2.11), the excess of
(a) the gross cash proceeds received by such Person from any such
Disposition and any cash payments received in respect of promissory notes
or other non-cash consideration delivered to such Person in respect thereof
(other than payments in respect of interest),
over
(b) the sum (without duplication) of (i) all customary legal,
investment banking, brokerage, appraisal and accounting and other
professional fees and disbursements actually incurred in connection with
such Disposition which have not been paid to Harvest Partners or any of its
Affiliates in connection therewith (other than those fees set forth in the
Management Agreement), (ii) all taxes and other governmental costs and
expenses actually paid or estimated by such Person (in good faith) to be
payable in cash in connection with such Disposition, (iii) in respect of
any such Disposition, the amount, if any, reserved by Holdings or any of
its Subsidiaries, as the case may be, in respect of any post-closing
purchase price adjustments related to such Disposition, estimated (if
necessary) in good faith by management of Holdings or such Subsidiary, as
the case may be, (iv) the portion of the purchase price in respect of any
such Disposition which is placed in escrow to secure the payment by
Holdings or any of its Subsidiaries, as the case may be, in respect of any
indemnity or similar obligations of such Person in respect of such
Disposition, and (v) payments made by such Person to retire Indebtedness
(other than the Credit Extensions) or other unassumed liabilities related
to the assets Disposed, in each case of such Person where payment and
satisfaction of such Indebtedness or other liabilities is required in
connection with such Disposition;
provided that if, (x) after the payment of all taxes with respect to such
Disposition, the amount of estimated taxes, if any, pursuant to clause (b)(ii)
above exceeded the tax amount actually paid in cash in respect of such
Disposition, the aggregate amount of such excess shall, at such time, constitute
Net Disposition Proceeds and (y) in the event that the amount reserved in
respect of any post-closing purchase price adjustment (referred to in clause
(b)(iii) above) or the amount placed in escrow in respect of any indemnity or
similar claims (referred to in clause (b)(iv) above) exceeds the amount actually
paid in respect of any such adjustments or claims, such excess amount shall, at
the time of determination thereof, constitute Net Disposition Proceeds.
"Net Equity Proceeds" means with respect to the sale or issuance by
Holdings of any of its Capital Stock in a registered public offering under the
Securities Act of 1933, the excess of
(a) the gross cash proceeds received by Holdings from such sale,
exercise or issuance,
over
(b) all customary underwriting commissions and discounts and customary
legal, investment banking, brokerage and accounting and other professional
fees, sales
-25-
commissions and disbursements actually incurred in connection with such
sale or issuance which have not been paid to Harvest Partners or any of its
Affiliates in connection therewith (other than those fees set forth in the
Management Agreement).
"Net Income" means, with respect to any Person for any period, the
aggregate of all amounts (excluding all amounts in respect of extraordinary
gains and extraordinary non-cash losses, but including and together with all
amounts in respect of extraordinary cash losses; provided that, for purposes of
determining Net Income in any such period, the amount of any such extraordinary
cash losses for such period, if any, shall be reduced to the extent of any
extraordinary cash gains for such period) which would be included as net income
on the consolidated financial statements of such Person and its Subsidiaries for
such period; provided that the portion of Net Income of any Subsidiary of such
Person that is not the Borrower or a Subsidiary Guarantor shall be excluded from
Net Income to the extent that the declaration or payment of dividends or similar
distributions by such Person of that portion of such Net Income is not at the
date of determination permitted without any prior governmental approval that has
not been obtained or, directly or indirectly, by operation of the terms of its
Organic Documents or any agreement (other than an agreement with Holdings or its
Subsidiaries), instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Person or its stockholders.
"New Notes" is defined in the third recital.
"New Notes Offering" is defined in the third recital.
"Non-Domestic Lender" means any Lender that is not a "United States
person", as defined under Section 7701(a)(30) of the Code.
"Non-Excluded Taxes" means any Taxes other than net income, profits, gains
and franchise taxes imposed with respect to any Secured Party by a Governmental
Authority under the laws of which such Secured Party is organized or in which it
maintains its principal office or applicable lending office.
"Non-Material Subsidiary" means any Subsidiary that
(a) accounted for no more than 5% (and, when taken together with all
other Non-Material Subsidiaries, accounted for no more than 10% in the
aggregate) of consolidated revenues of Holdings and its Subsidiaries for
the four consecutive Fiscal Quarters ending on December 31, 2001, or if
later, the last day of the most recently completed Fiscal Quarter with
respect to which, pursuant to Section 7.1.1, financial statements have
been, or are required to have been, delivered to the Administrative Agent,
and
(b) has assets which represent no more than 5% (and, when taken
together with all other Non-Material Subsidiaries, represent no more than
10% in the aggregate) of the consolidated assets of Holdings and its
Subsidiaries as of December 31, 2001, or if later, the last day of the last
Fiscal Quarter of the most recently completed Fiscal Quarter with respect
to which, pursuant to Section 7.1.1, financial statements have been, or are
required to have been, delivered to the Administrative Agent.
-26-
"Note" means, as the context may require, a Revolving Note, a Term Note or
a Swing Line Note.
"Obligations" means all obligations (monetary or otherwise, whether
absolute or contingent, matured or unmatured) of each Obligor arising under or
in connection with a Loan Document, including the principal of and premium, if
any, and interest (including interest accruing during the pendency of any
proceeding of the type described in Section 8.1.9, whether or not allowed in
such proceeding) on the Loans and all Reimbursement Obligations.
"Obligor" means, as the context may require, Holdings, the Borrower, and
each other Person (other than a Secured Party) obligated under any Loan
Document.
"Organic Document" means, relative to any Obligor, as applicable, its
certificate of incorporation, by-laws, certificate of partnership, partnership
agreement, certificate of formation, limited liability agreement, operating
agreement and all shareholder agreements, voting trusts and similar arrangements
applicable to any of such Obligor's partnership interests, limited liability
company interests or authorized shares of Capital Stock.
"Other Debt Documents" means, collectively, each of the loan agreements,
indentures, note purchase agreements, promissory notes, guarantees and other
instruments and agreements evidencing the terms of any Unsecured Transaction
Debt or any other Permitted Indebtedness, other than any such Indebtedness in
respect of the Obligations, in each case, as amended, supplemented, amended and
restated or otherwise modified in accordance with this Agreement.
"Other Person" is defined in the definition of "Subsidiary".
"Other Taxes" means any and all stamp, documentary or similar taxes, or any
other excise or property taxes or similar levies that arise on account of any
payment made or required to be made under any Loan Document or from the
execution, delivery, registration, recording or enforcement of any Loan
Document.
"Participant" is defined in clause (c) of Section 11.11.
"Patent Security Agreement" means any Patent Security Agreement executed
and delivered by any Obligor in substantially the form of Exhibit B to the
applicable Security and Pledge Agreement, as amended, supplemented, amended and
restated or otherwise modified from time to time.
"Payment Default" means any Default described in Section 8.1.1.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in Section
3(2) of ERISA, which is subject to Title IV of ERISA (other than a multiemployer
plan as defined in Section 4001(a)(3) of ERISA), and to which the Borrower or
any corporation, trade or business
-27-
that is, along with the Borrower, a member of a Controlled Group, has liability
(actual or contingent), including any liability by reason of having been a
substantial employer within the meaning of Section 4063 of ERISA at any time
during the preceding five years, or by reason of being deemed to be a
contributing sponsor under Section 4069 of ERISA.
"Percentage" means, as the context may require, any Lender's Revolving Loan
Percentage or Term Percentage.
"Perfection Certificate" means the Perfection Certificate executed and
delivered by an Authorized Officer of each Obligor that is a party to the
Security and Pledge Agreement pursuant to Section 5.1.22 or 7.1.9, substantially
in the form of Exhibit H hereto, as amended, supplemented, amended and restated
or otherwise modified from time to time.
"Permitted Acquisition" means an acquisition (exclusive of the
Acquisition), whether pursuant to a merger or an acquisition of Capital Stock,
assets or otherwise, by the Borrower or any of its Subsidiaries of all or
substantially all of the assets or Capital Stock of any Person (or any part of
the assets constituting all or substantially all of a business or line of
business of any Person), whether or not such acquisition is effected in a single
transaction or in a series of related transactions, and as to which the
following conditions are satisfied:
(a) immediately before and after giving effect to such acquisition, no
Default shall have occurred and be continuing or would result therefrom
(including under Section 7.2.1);
(b) such acquisition is consummated pursuant to a negotiated merger,
purchase or similar agreement between the Borrower and/or any of its
Subsidiaries, on the one hand, and such Person and/or any of its
Affiliates, on the other hand;
(c) in the case of an acquisition of Capital Stock by the Borrower or
a Subsidiary, such acquisition results in the issuer of such Capital Stock
becoming a wholly-owned Subsidiary of the Borrower;
(d) consideration for such acquisition shall be comprised of Capital
Stock of Holdings, the issuance of a Permitted Seller Note, the assumption,
incurrence or issuance of Indebtedness permitted under clause (l) of
Section 7.2.2 and/or cash and the aggregate amount of the consideration for
such acquisition (based on the fair market value of Capital Stock issued,
the amount of Indebtedness issued and/or assumed and the cash expended in
connection therewith) shall not exceed $25,000,000 and, when added to the
total aggregate amount of consideration for all other such acquisitions
pursuant to this subclause (d) since the Closing Date, shall not exceed
$75,000,000 (provided that either of the foregoing amounts may be increased
by up to $25,000,000 to the extent such acquisitions are financed with new
equity proceeds or Capital Stock of Holdings);
(e) immediately after giving effect to such acquisition, at least
$15,000,000 of the Revolving Loan Commitment Amount shall be unused;
(f) in the case of any acquisition in which the total aggregate amount
of consideration therefor is in excess of $2,500,000, the Borrower shall
have delivered to
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the Agents a Compliance Certificate for the period of four full Fiscal
Quarters immediately preceding such acquisition (prepared in good faith and
in a manner and using such methodology which is consistent with the most
recent financial statements delivered pursuant to Section 7.1.1) giving pro
forma effect to the consummation of such acquisition and evidencing
compliance with the covenants set forth in Section 7.2.4 and the preceding
clauses (a) through (e); and
(g) with respect to any such acquisition which requires the delivery
of a Compliance Certificate pursuant to clause (g) above, if, based upon
such Compliance Certificate, such acquisition does not, immediately after
giving effect thereto, increase the EBITDA of Holdings and its
Subsidiaries, Holding's Leverage Ratio (as computed in such Compliance
Certificate) for the period of four full Fiscal Quarters immediately
preceding such acquisition (prepared in good faith and in a manner and
using such methodology which is consistent with the most recent financial
statements delivered pursuant to Section 7.1.1), after giving pro forma
effect to the consummation of such acquisition is below 3.50:1.
"Permitted Holders" means, collectively, (i) Harvest Partners and (ii) each
Person which, directly or indirectly, controls, is controlled by or is under
common control with Harvest Partners ("control" of a Person, for the purposes of
this definition of "Permitted Holders," means the power, directly or indirectly,
to direct or cause the direction of the management and policies of such Person
(whether by contract or otherwise)).
_________________________
To be discussed.
"Permitted Indebtedness" means any Indebtedness permitted pursuant to
Section 7.2.2.
"Permitted Liens" means Liens permitted pursuant to Section 7.2.3.
"Permitted Seller Note" means an unsecured subordinated promissory note
issued by Holdings or the Borrower in connection with a Permitted Acquisition,
which note (i) provides for a final stated maturity date that is not prior to
[April 30], 2014 (but which may provide for scheduled amortization of the
original principal amount thereof on each anniversary of the issuance thereof to
the extent each such required amortization payment does not exceed 20% of the
original principal amount thereof), (ii) bears cash interest at an annual rate
not in excess of 10%, although any such interest payable in excess of 10% per
annum either shall be payable with the issuance of additional promissory notes
in form and substance substantially similar to such promissory note (it being
understood and agreed that each such additional promissory note shall constitute
a Permitted Seller Note) or shall continue to accrue, (iii) does not provide the
holders thereof with the guaranty of any Subsidiary of the Borrower, (iv) does
not contain any financial maintenance covenants or any cross-default provisions
(it being understood that a cross-acceleration provision with respect to
Indebtedness in an aggregate principal amount in excess of $10,000,000 shall be
acceptable) and (v) contains such other terms and provisions (including as to
subordination, if any,) as are reasonably acceptable to each of the Agents.
"Person" means any natural person, corporation, limited liability company,
partnership, joint venture, association, trust or unincorporated organization,
Governmental Authority or any other legal entity, whether acting in an
individual, fiduciary or other capacity.
"Pledged Subsidiary" means each Subsidiary in respect of which the
Administrative Agent has been granted a security interest in or a pledge of (i)
any of the Capital Stock of such
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Subsidiary or (ii) any Intercompany Notes of such Subsidiary owing to the
Borrower or another Subsidiary.
"Post-Merger Material Adverse Effect" means a material adverse effect on
the condition (financial or otherwise), business, operations, assets,
liabilities (contingent or otherwise), properties or prospects of Holdings and
its Subsidiaries, taken as a whole.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of preferred or preference stock of such Person.
"Pre-Merger Material Adverse Effect" means a material adverse effect on (i)
the ability of any party to the Acquisition Agreement to perform its obligations
thereunder or to consummate the transactions contemplated thereby or (ii) the
assets, liabilities (actual or contingent), condition, results of operations or
business of the Borrower and its Subsidiaries, taken as a whole, excluding any
change or development resulting from or arising in connection with (1) economic,
financial market, regulatory or political conditions generally or generally
affecting the principal markets in which the Borrower conducts business, which
in each case do not affect the Borrower disproportionately to other companies in
the building products/siding and windows industry, (2) changes affecting the
building products/siding and windows industry generally which do not affect the
Borrower disproportionately to other companies in the building products/siding
and windows industry, (3) the Acquisition Agreement or any transaction
contemplated by the Acquisition Agreement or the announcement thereof, (4) any
matters disclosed in the Disclosure Schedule (as defined in the Acquisition
Agreement as in effect on the date of the Commitment Letter) or (5) the failure
of any holder of Existing Notes to tender its Existing Notes to AMI in the Note
Tender.
"Primary Syndication" means the period commencing on or prior to the
Closing Date and ending on the earlier of (i) 90 days after the Closing Date and
(ii) the date that the Joint Lead Arrangers have declared the primary
syndication of the Credit Extensions to have ended.
"Pro Forma Basis" means, with respect to any determination for any period
for any Person, after giving pro forma effect to each Permitted Acquisition and
Disposition of a Person, business or all or substantially all of the assets of a
Person or business consummated during such period, together with all
transactions relating thereto consummated during such period (including any
incurrence, assumption, refinancing or repayment of Indebtedness), as if such
Permitted Acquisition, Disposition and related transactions had been consummated
on the first day of such period, in each case based on historical results
accounted for in accordance with GAAP and, to the extent applicable, (x)
reasonable assumptions acceptable to the Agents that are specified in reasonable
detail in the relevant Compliance Certificate or other certificate furnished to
any Agent or Lender in connection with the terms of this Agreement or (y)
assumptions prepared in accordance with Regulation S-X under the Securities Act
of 1933, as amended, and the Exchange Act, and the Securities and Exchange
Commission's rules and guidelines with respect to pro forma financial statements
and that are specified in reasonable detail in the relevant Compliance
Certificate.
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"Qualified IPO" means an initial public offering by Holdings of its Voting
Stock in a registered public offering under the Securities Act of 1933 pursuant
to which not less than [20]% of the Company's issued and outstanding Voting
Stock is sold pursuant to such offering for not less than $__________ of gross
proceeds.
"Qualifying Subordinated Debt" means unsecured senior subordinated notes of
Holdings or the Borrower in an aggregate principal amount not to exceed
$50,000,000 containing terms and conditions no less favorable to the Borrower,
and no more favorable to the holders thereof, in each case in any material
respect, than those of the New Notes or containing such other terms and
conditions (including rate of interest, maturity, covenants, events of default
and subordination provisions) reasonably acceptable to the Agents; provided
that, immediately prior to the issuance of any such notes, the Borrower shall
have delivered to the Agents a Compliance Certificate for the period of four
full Fiscal Quarters immediately preceding such issuance (prepared in good faith
and in a manner and using such methodology which is consistent with the most
recent financial statements delivered pursuant to Section 7.1.1) giving pro
forma effect to such issuance and the application of the proceeds therefrom and
evidencing compliance with the covenants set forth in Section 7.2.4.
"Quarterly Payment Date" means the last Business Day of March, June,
September and December.
"Rate Protection Agreement" means, collectively, any interest rate swap,
cap, collar or similar agreement entered into by the Borrower or any of its
Subsidiaries under which the counterparty of such agreement is (or at the time
such agreement was entered into, was) a Lender or an Affiliate of a Lender, so
long as a fully executed copy of such agreement has been provided to the Agents.
"Redeemable Capital Stock" means Capital Stock of Holdings or any of its
Subsidiaries that, either by its terms or by the terms of any security into
which it is convertible or exchangeable, at the option of the holder thereof,
(i) is or upon the happening of an event (other than a voluntary call by the
issuer thereof or change of control so long as, in the case of a change of
control, all Obligations hereunder must first be paid in full) or passage of
time would be required to be redeemed (for consideration other than common stock
of Holdings) on or prior to [April 30], 2014, (ii) is redeemable at the option
of the holder thereof (for consideration other than common stock of Holdings) at
any time prior to such date or (iii) is convertible at the option of the holder
thereof into or exchangeable for debt securities of the Borrower, Holdings or
any of their respective Subsidiaries at any time prior to such anniversary other
than debt securities constituting Qualified Subordinated Debt.
"Refinancing" is defined in the second recital.
"Refunded Swing Line Loans" is defined in clause (b) of Section 2.3.2.
"Register" is defined in clause (b) of Section 2.7.
"Reimbursement Obligation" is defined in Section 2.6.3.
"Release" means a "release", as such term is defined in CERCLA.
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"Replacement Lender" is defined in Section 4.10.
"Replacement Notice" is defined in Section 4.10.
"Required Lenders" means, at any time,
(a) with respect to any provision of this Agreement or any other Loan
Document other than the taking of any remedial action under this Agreement
or any other Loan Document following the declaration of the acceleration of
the maturity of all or any portion of the outstanding principal amount of
the Loans and other Obligations to be due and payable pursuant to Section
8.3, Lenders holding at least a majority of the sum of (i) the Revolving
Loan Commitments (or, following the Revolving Loan Commitment Termination
Date, the aggregate principal amount of the Revolving Loans and Swing Line
Loans then outstanding plus the Letter of Credit Outstandings (after giving
effect to the participation of the Lenders therein)) and (ii) the Term Loan
Commitments (or, following the Term Loan Commitment Termination Date, the
aggregate principal amount of the Term Loans then outstanding); or
(b) with respect to the taking of any remedial action under this
Agreement or any other Loan Document following the declaration of the
acceleration of the maturity of all or any portion of the outstanding
principal amount of the Loans and other Obligations to be due and payable
pursuant to Section 8.3, Lenders holding at least a majority of the sum of
the aggregate principal amount of outstanding Loans plus the Letter of
Credit Outstandings (after giving effect to the participation of the
Lenders therein).
"Resource Conservation and Recovery Act" means the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, et seq., as amended.
"Restricted Payment" means the declaration or payment of any dividend
(other than dividends payable solely in Capital Stock (other than Redeemable
Capital Stock) of Holdings or any Subsidiary of Holdings) on, or the making of
any payment or distribution on account of, or setting apart assets for a sinking
or other analogous fund for, the purchase, redemption, defeasance, retirement or
other acquisition of any class of Capital Stock of Holdings or any Subsidiary or
any warrants or options to purchase any such Capital Stock, whether now or
hereafter outstanding, or the making of any other payment or distribution in
respect thereof, either directly or indirectly, whether in cash or property,
obligations of Holdings or any Subsidiary or otherwise.
"Revolving Loan" is defined in Section 2.1.1.
"Revolving Loan Commitment" is defined in Section 2.1.1.
"Revolving Loan Commitment Amount" means, on any date, $40,000,000, as such
amount may be reduced from time to time pursuant to Section 2.2.
"Revolving Loan Commitment Termination Date" means the earliest of (i) the
fifth anniversary of the Closing Date, (ii) the date on which the Revolving Loan
Commitment Amount is terminated in full or reduced to zero pursuant to the terms
of this Agreement, (iii) the
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date on which any Commitment Termination Event occurs, and (iv) if the Merger is
not consummated within 180 days after the Closing Date, then the date which is
the one and one-half year anniversary of the Closing Date. Upon the occurrence
of any event described in the preceding clause (iii), the Revolving Loan
Commitments shall terminate automatically and without any further action.
"Revolving Loan Lender" means a Lender that has a Revolving Loan
Commitment.
"Revolving Loan Percentage" means, relative to any Lender, the applicable
percentage relating to Revolving Loans set forth below its signature on the
signature pages hereto opposite the reference to "Revolving Loan Commitment" or
set forth in a Lender Assignment Agreement under the Revolving Loan Commitment
column, as such percentage may be adjusted from time to time pursuant to Lender
Assignment Agreements executed by such Lender and its Assignee Lender and
delivered pursuant to Section 11.11. A Lender shall not have any Revolving Loan
Commitment if its percentage under the Revolving Loan Commitment column is zero.
"Revolving Note" means a promissory note of the Borrower payable to any
Revolving Loan Lender, in the form of Exhibit A-I hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of the Borrower to such Revolving Loan
Lender resulting from outstanding Revolving Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"Rollover Equity" is defined in the third recital.
"S&P" means Standard & Poor's Rating Services, a division of ▇▇▇▇▇▇-▇▇▇▇,
Inc.
"SEC" means the Securities and Exchange Commission.
"Secured Parties" means, collectively, (i) the Lenders, each Issuer and the
Agents, (ii) for purposes of each agreement pursuant to which the Administrative
Agent is granted a Lien to secure any Obligation or receives a guaranty of any
Obligation or pursuant to which any Person subordinates any obligation payable
by Holdings or any of its Subsidiaries to it to the Obligations or any insurance
or indemnity with respect to the same (including Section 11.4 hereof), each
counterparty to a Rate Protection Agreement that is (or at the time such Rate
Protection Agreement was entered into, was) a Lender or an Affiliate thereof,
and (iii) in each case, each of their respective successors, transferees and
assigns.
"Security and Pledge Agreement" means, as the context may require, the
Holdings Pledge Agreement, the Borrower Security and Pledge Agreement and/or the
Subsidiary Security and Pledge Agreement.
"Shares" is defined in the first recital.
"Solvent" means, with respect to any Person and its Subsidiaries on a
particular date, that on such date (i) the fair value of the property of such
Person and its Subsidiaries on a consolidated basis is greater than the total
amount of liabilities, including contingent liabilities, of such Person and its
Subsidiaries on a consolidated basis, (ii) the present fair salable value of
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the assets of such Person and its Subsidiaries on a consolidated basis is not
less than the amount that will be required to pay the probable liability of such
Person and its Subsidiaries on a consolidated basis on its debts as they become
absolute and matured, (iii) such Person does not intend to, and does not believe
that it or its Subsidiaries will, incur debts or liabilities beyond the ability
of such Person and its Subsidiaries to pay such debts and liabilities as the
same mature, and (iv) such Person and its Subsidiaries on a consolidated basis
is not engaged in business or a transaction, and such Person and its
Subsidiaries on a consolidated basis is not about to engage in business or a
transaction, for which the property of such Person and its Subsidiaries on a
consolidated basis would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in
light of all the facts and circumstances existing at such time, can reasonably
be expected to become an actual or matured liability.
"SPC" is defined in clause (f) of Section 11.11.
"Stated Amount" means, on any date and with respect to a particular Letter
of Credit, the total amount then available to be drawn under such Letter of
Credit.
"Stated Expiry Date" is defined in Section 2.6.
"Stated Maturity Date" means (i) with respect to all Term Loans, the
seventh anniversary of the Closing Date, and (ii) with respect to all Revolving
Loans and Swing Line Loans, the fifth anniversary of the Closing Date; provided
that if the Merger does not occur within 180 days after the Closing Date, the
Stated Maturity Date for the Term Loans, Revolving Loans and Swing Line Loans
shall be the date that is the one and one-half year anniversary of the Closing
Date.
"Subordinated Debt" means unsecured Indebtedness of any Obligor in respect
of the New Notes, any Permitted Seller Notes, Qualifying Subordinated Debt or
which is subordinated in right of payment to the Obligations pursuant to
documentation containing redemption and other prepayment events, maturities,
amortization schedules, covenants, events of default, remedies, acceleration
rights, subordination provisions and other material terms no less favorable in
any material respect to such Obligor, and no more favorable in any material
respect to the holders thereof, than set forth in the Other Debt Documents
relating to the New Notes or such other terms reasonably satisfactory to the
Agents.
"Subordination Provisions" is defined in Section 8.1.11.
"Subsidiary" means, with respect to any Person, any corporation, limited
liability company, partnership or other entity ("Other Person") of which more
than 50% of the outstanding Voting Stock of such Other Person (irrespective of
whether at the time Capital Stock of any other class or classes of such Other
Person shall or might have voting power upon the occurrence of any contingency)
is at the time directly or indirectly owned or controlled by such Person, by
such Person and one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person. Unless the context otherwise specifically
requires, the term "Subsidiary" shall be a reference to a Subsidiary of the
Borrower.
"Subsidiary Guarantor" means each Subsidiary of the Borrower which has
executed and delivered to the Administrative Agent the Subsidiary Guaranty (or a
supplement thereto).
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"Subsidiary Guaranty" means the subsidiary guaranty executed and delivered
by Subsidiaries of the Borrower pursuant to this Agreement, substantially in the
form of Exhibit F-2 hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Subsidiary Security and Pledge Agreement" means the Security and Pledge
Agreement executed and delivered by an Authorized Officer of each Subsidiary
Guarantor pursuant to this Agreement, substantially in the form of Exhibit G-3
hereto, as amended, supplemented, amended and restated or otherwise modified
from time to time.
["Supplemental Indenture" means the First Supplement to Indenture, dated as
of April 4, 2002, between AMI and the Bank of New York Trust Company of Florida,
N.A.]
"Surviving Corporation" is defined in the first recital.
"Swing Line Lender" means the Administrative Agent, in its capacity as the
Swing Line Lender.
"Swing Line Loan" is defined in Section 2.1.1.
"Swing Line Loan Commitment" is defined in Section 2.1.1.
"Swing Line Loan Commitment Amount" means, on any date, $[5,000,000], as
such amount may be reduced from time to time pursuant to Section 2.2.
"Swing Line Note" means a promissory note of the Borrower payable to the
Swing Line Lender, in the form of Exhibit A-2 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the Borrower to the Swing Line Lender resulting
from outstanding Swing Line Loans, and also means all other promissory notes
accepted from time to time in substitution therefor or renewal thereof.
"Syndication Agent" is defined in the preamble.
"Synthetic Lease" means, as applied to any Person, any lease (including
leases that may be terminated by the lessee at any time) of any property
(whether real, personal or mixed) (a) that is not a capital lease in accordance
with GAAP and (b) in respect of which the lessee retains or obtains ownership of
the property so leased for federal income tax purposes, other than any such
lease under which that Person is the lessor.
"Taxes" means any and all income, stamp or other taxes, duties, levies,
imposts, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority, and all
interest and penalties with respect thereto.
"Tender Offer" is defined in the first recital.
"Tender Offer Closing Date" is defined in the third recital.
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"Tender Offer Consideration" is defined in the first recital.
"Term Loan" is defined in Section 2.1.3.
"Term Loan Commitment" means, relative to any Lender, such Lender's
obligation (if any) to make Term Loans pursuant to Section 2.1.3.
"Term Loan Commitment Amount" means, on any date, $125,000,000.
"Term Loan Commitment Termination Date" means the earliest of (i) the
Closing Date (immediately after the making of the Term Loans on such date), and
(ii) the date on which any Commitment Termination Event occurs. Upon the
occurrence of any event described in clause (ii), the Term Loan Commitments
shall terminate automatically and without any further action.
"Term Loan Escrow" is defined in the fourth recital.
"Term Loan Escrow Agreement" is defined in Section 7.1.7.
"Term Note" means a promissory note of the Borrower payable to any Lender,
in the form of Exhibit A-3 hereto (as such promissory note may be amended,
endorsed or otherwise modified from time to time), evidencing the aggregate
Indebtedness of the Borrower to such Lender resulting from outstanding Term
Loans, and also means all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"Term Percentage" means, relative to any Lender, the applicable percentage
relating to Term Loans set forth below its signature on the signature pages
hereto opposite the reference to "Term Loan Commitment" or set forth in a Lender
Assignment Agreement under the Term Loan Commitment column, as such percentage
may be adjusted from time to time pursuant to Lender Assignment Agreements
executed by such Lender and its Assignee Lender and delivered pursuant to
Section 11.11. A Lender shall not have any Term Loan Commitment if its
percentage under the Term Loan Commitment column is zero.
"Termination Date" means the date on which all Obligations (other than any
indemnities that are not then due and payable) have been paid in full in cash,
all Letters of Credit have been terminated, expired or Cash Collateralized and
all Commitments shall have terminated.
"Total Debt" means, on any date, without duplication, the outstanding
principal amount of all Indebtedness of Holdings and its Subsidiaries of the
type referred to in clause (a), clause (b) (excluding obligations relative to
the face amount of letters of credit to the extent such face amount has not been
drawn or, if drawn, to the extent the amount of such drawing has been reimbursed
to the issuer thereof by the obligor with respect thereto), clause (c), clause
(e) (but, in the case of such clause (e), only to the extent accounted for as
debt on a balance sheet in accordance with GAAP), clause (f) and clause (g), in
each case of the definition of "Indebtedness", and any Contingent Liability in
respect of any of the foregoing; provided that (i) Indebtedness in respect of
paid-in-kind interest on the Bridge Loans shall not be included in the
calculation of Total Debt and (ii) Indebtedness in respect of Permitted Seller
Notes and Qualifying Subordinated Debt shall not be included in the calculation
of Total Debt to the extent
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that such notes and/or debt (x) are issued by Holdings and are not guaranteed by
any Subsidiary of Holdings and (y) do not provide for any scheduled repayments
or mandatory prepayments or redemptions of the principal thereof prior to [April
30], 2014 or for any payment of cash interest or regularly accruing fees with
respect thereto.
"Total Exposure Amount" means, on any date of determination (and without
duplication), the outstanding principal amount of all Loans, the aggregate
amount of all Letter of Credit Outstandings and the unfunded amount of the
Commitments.
"Trademark Security Agreement" means any Trademark Security Agreement
executed and delivered by any Obligor substantially in the form of Exhibit C to
the applicable Security and Pledge Agreement, as amended, supplemented, amended
and restated or otherwise modified from time to time.
"Tranche" means, as the context may require, the Loans constituting Term
Loans, Revolving Loans or Swing Line Loans.
"Transaction" is defined in the third recital.
"type" means, relative to any Loan, the portion thereof, if any, being
maintained as an Alternate Base Rate Loan or a Eurodollar Loan.
"UCC" means the Uniform Commercial Code as in effect from time to time in
the State of New York; provided that if, with respect to any Filing Statement or
by reason of any provisions of law, the perfection or the effect of perfection
or non-perfection of the security interests granted to the Administrative Agent
pursuant to the applicable Loan Document is governed by the Uniform Commercial
Code as in effect in a jurisdiction of the United States other than New York,
UCC means the Uniform Commercial Code as in effect from time to time in such
other jurisdiction for purposes of the provisions of each Loan Document and any
Filing Statement relating to such perfection or effect of perfection or
non-perfection.
"United States" or "U.S." means the United States of America, its fifty
states and the District of Columbia.
"Unsecured Transaction Debt" means any Indebtedness of Holdings, Mergerco,
the Borrower or any other Obligor incurred in connection with the financing of
the Acquisition (including the Tender Offer and the Merger), whether in respect
of the Bridge Loans, the New Notes or any other Indebtedness issued in exchange
or substitution therefor pursuant to the terms thereof, as amended or otherwise
modified pursuant to this Agreement.
"Voting Stock" means, with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the managing body of such Person.
"Welfare Plan" means a "welfare plan", as such term is defined in Section
3(l) of ERISA.
"wholly-owned Subsidiary" means, with respect to any Person, any Subsidiary
of such Person all of the outstanding common stock (or similar equity interest)
of which (other than any
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director's qualifying shares or investments by foreign nationals mandated by
applicable laws) is owned directly or indirectly by such Person. Unless the
context otherwise requires, the term "wholly-owned Subsidiary" shall be a
reference to a wholly-owned Subsidiary of the Borrower.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Agreement
shall have such meanings when used in each other Loan Document and the
Disclosure Schedule, and each notice and other communication delivered from time
to time in connection with any Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified, references in a
Loan Document to any Article or Section are references to such Article or
Section of such Loan Document, and references in any Article, Section or
definition to any clause are references to such clause of such Article, Section
or definition.
SECTION 1.4. Accounting and Financial Determinations.
(a) Unless otherwise specified, all accounting terms used in each Loan
Document shall be interpreted, and all accounting determinations and
computations thereunder (including under Section 7.2.4 and the definitions
used in such calculations) shall be made, in accordance with those
generally accepted accounting principles in the United States ("GAAP")
applied in the preparation of the Borrower's financial statements in
respect of its Fiscal Year ended December 31, 2001. Unless otherwise
expressly provided all financial covenants and defined financial terms
shall be computed on a consolidated basis for Holdings and its Subsidiaries
(including AMI), in each case without duplication.
(b) For purposes of computing the Leverage Ratio, the Interest
Coverage Ratio and the Fixed Charge Ratio (under Section 7.2.4), such
ratios (and any financial calculations or components required to be made or
included therein, including EBITDA) shall be determined on a Pro Forma
Basis.
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES, NOTES AND LETTERS OF CREDIT
SECTION 2.1. Commitments. On the terms and subject to the conditions of
this Agreement, the Lenders and each Issuer severally agree to make Credit
Extensions as set forth below.
SECTION 2.1.1. Revolving Loan Commitment and Swing Line Loan Commitment.
From time to time on any Business Day occurring on and after the Closing Date
but prior to the Revolving Loan Commitment Termination Date, (i) each Lender
agrees that it will make loans (relative to such Lender, its "Revolving Loans")
to the Borrower equal to such Lender's Revolving Loan Percentage of the
aggregate amount of each Borrowing of Revolving Loans requested by the Borrower
to be made on such day, and (ii) the Swing Line Lender agrees that it will make
loans (its "Swing Line Loans") to the Borrower equal to the principal amount of
the Swing Line Loan requested by the Borrower to be made on such day. The
Commitment of each
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such Revolving Loan Lender described above is herein referred to as its
"Revolving Loan Commitment", and the Commitment of the Swing Line Lender
described above is herein referred to as its "Swing Line Loan Commitment". On
the terms and subject to the conditions hereof, the Borrower may from time to
time borrow, prepay and reborrow Revolving Loans and Swing Line Loans. No
Revolving Loan Lender shall be permitted or required to make any Revolving Loan
if, after giving effect thereto, the aggregate outstanding principal amount of
all Revolving Loans of such Revolving Loan Lender, together with such Lender's
Revolving Loan Percentage of the aggregate amount of all Swing Line Loans and
Letter of Credit Outstandings, would exceed such Lender's Revolving Loan
Percentage of the then existing Revolving Loan Commitment Amount. Furthermore,
the Swing Line Lender shall not be permitted or required to make Swing Line
Loans if, after giving effect thereto, the aggregate outstanding principal
amount of all Swing Line Loans would exceed (x) the then existing Swing Line
Loan Commitment Amount or (y) when combined with the aggregate outstanding
principal amount of Revolving Loans and Letter of Credit Outstandings, the then
existing Revolving Loan Commitment Amount.
SECTION 2.1.2. Letter of Credit Commitment. From time to time on any
Business Day occurring on and after the Closing Date but prior to the Revolving
Loan Commitment Termination Date, each Issuer agrees that it will (i) issue one
or more trade letters of credit or standby letters of credit (each a "Letter of
Credit") for the account of the Borrower or any Subsidiary in the Stated Amount
requested by the Borrower on such day, or (ii) extend the Stated Expiry Date of
an existing Letter of Credit previously issued hereunder. No Stated Expiry Date
shall extend beyond the earlier of (x) 30 days prior to the Revolving Loan
Commitment Termination Date in the case of trade Letters of Credit or 10 days
prior to the Revolving Loan Commitment Termination Date in the case of standby
Letters of Credit and (y) unless otherwise agreed to by the respective Issuer in
its sole discretion, 364 days from the date of such issuance or extension. No
Issuer shall be permitted or required to issue any Letter of Credit if, after
giving effect thereto, (i) the aggregate amount of all Letter of Credit
Outstandings would exceed the Letter of Credit Commitment Amount or (ii) the sum
of the aggregate amount of all Letter of Credit Outstandings plus the aggregate
principal amount of all Revolving Loans and Swing Line Loans then outstanding
would exceed the Revolving Loan Commitment Amount.
SECTION 2.1.3. Term Loan Commitment. In a single drawing on any Business
Day occurring on or prior to the Term Loan Commitment Termination Date, each
Lender that has a Term Loan Commitment agrees that it will make loans (relative
to such Lender, its "Term Loans") to the Borrower equal to such Lender's Term
Loan Percentage of the aggregate amount of the Borrowings of Term Loans
requested by the Borrower to be made on such day. No amounts paid or prepaid
with respect to Term Loans may be reborrowed.
SECTION 2.2. Reduction of the Commitment Amounts. The Borrower may, from
time to time on any Business Day occurring after the Closing Date, voluntarily
reduce the amount of the Revolving Loan Commitment Amount, the Swing Line Loan
Commitment Amount, the Letter of Credit Commitment Amount or the Term Loan
Commitment Amount on the Business Day so specified by the Borrower; provided
that all such reductions shall require at least one Business Day's prior notice
to the Administrative Agent and be permanent, and any partial reduction of any
Commitment Amount shall be in a minimum amount of $[ ] and in an integral
multiple of $[___________]. Any optional or mandatory reduction of the Revolving
Loan Commitment Amount pursuant to the terms of this Agreement which reduces
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the Revolving Loan Commitment Amount below the sum of (i) the Swing Line Loan
Commitment Amount and (ii) the Letter of Credit Commitment Amount shall result
in an automatic and corresponding reduction of the Swing Line Loan Commitment
Amount and/or Letter of Credit Commitment Amount (as directed by the Borrower in
a notice to the Administrative Agent delivered together with the notice of such
voluntary reduction in the Revolving Loan Commitment Amount or, in the absence
of such direction, pro rata based upon the respective amounts thereof) to an
aggregate amount not in excess of the Revolving Loan Commitment Amount, as so
reduced, without any further action on the part of the Swing Line Lender or the
Issuers.
SECTION 2.3. Borrowing Procedures. Loans (other than Swing Line Loans)
shall be made by the Lenders in accordance with Section 2.3.1, and Swing Line
Loans shall be made by the Swing Line Lender in accordance with Section 2.3.2.
SECTION 2.3.1. Borrowing Procedures. In the case of Loans other than Swing
Line Loans, by delivering a Borrowing Request to the Administrative Agent not
later than 2:00 p.m. on a Business Day, the Borrower may from time to time
irrevocably request, on not less than one Business Day's notice in the case of
Alternate Base Rate Loans, or three Business Days' notice in the case of
Eurodollar Loans, and in either case not more than five Business Days' notice,
that a Borrowing be made, in the case of either Eurodollar Loans or Alternate
Base Rate Loans, in a minimum amount of either $[_______] and in an integral
multiple of $[________] or the unused amount of the applicable Commitment;
provided that, subject to the Borrower's right to convert such Loans to
Eurodollar Loans pursuant to Section 2.4, all of the Loans made on the Closing
Date shall be made as Alternate Base Rate Loans. On the terms and subject to the
conditions of this Agreement, each Borrowing shall be comprised of the type of
Loans, and shall be made on the Business Day, specified in such Borrowing
Request. In the case of Loans other than Swing Line Loans, not later than 1:00
p.m. on such Business Day each Lender that has a Commitment to make the Loans
being requested shall deposit with the Administrative Agent same day funds in an
amount equal to such Lender's Percentage of the requested Borrowing. Such
deposit will be made to an account which the Administrative Agent shall specify
from time to time by notice to the Lenders. To the extent funds are received
from the Lenders, the Administrative Agent shall promptly make such funds
available to the Borrower by wire transfer to the accounts the Borrower shall
have specified in its Borrowing Request. No Lender's obligation to make any Loan
shall be affected by any other Lender's failure to make any Loan.
SECTION 2.3.2. Swing Line Loan Borrowing Procedures. In the case of Swing
Line Loans:
(a) By telephonic notice to the Swing Line Lender not later than 2:00
p.m. on a Business Day (followed (within one Business Day) by the delivery
of a confirming Borrowing Request), the Borrower may from time to time
irrevocably request that Swing Line Loans be made by the Swing Line Lender
in an aggregate minimum principal amount of $[________] and in an integral
multiple of $[________]. All Swing Line Loans shall be made as Alternate
Base Rate Loans and shall not be entitled to be converted into Eurodollar
Loans. The proceeds of each Swing Line Loan shall be made available by the
Swing Line Lender to the Borrower by wire transfer to the account the
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Borrower shall have specified in its notice therefor not later than [10:00
a.m.] on the Business Day telephonic notice is received by the Swing Line
Lender.
(b) If (i) any Swing Line Loan shall be outstanding for more than
three Business Days, (ii) any Swing Line Loan is or will be outstanding on
a date when the Borrower requests that a Revolving Loan be made, or (iii)
any Default shall occur and be continuing, then each Revolving Loan Lender
(other than the Swing Line Lender) irrevocably agrees that it will, at the
request of the Swing Line Lender, make a Revolving Loan (which shall
initially be funded as an Alternate Base Rate Loan) in an amount equal to
such Lender's Revolving Loan Percentage of the aggregate principal amount
of all such Swing Line Loans then outstanding (such outstanding Swing Line
Loans hereinafter referred to as the "Refunded Swing Line Loans"). Not
later than 1:00 p.m. on the first Business Day following receipt by each
Revolving Loan Lender of a request to make Revolving Loans as provided in
the preceding sentence, each Revolving Loan Lender shall deposit in an
account specified by the Swing Line Lender the amount so requested in same
day funds and such funds shall be applied by the Swing Line Lender to repay
the Refunded Swing Line Loans. At the time the Revolving Loan Lenders make
the above referenced Revolving Loans the Swing Line Lender shall be deemed
to have made, in consideration of the making of the Refunded Swing Line
Loans, Revolving Loans in an amount equal to the Swing Line Lender's
Revolving Loan Percentage of the aggregate principal amount of the Refunded
Swing Line Loans. Upon the making (or deemed making, in the case of the
Swing Line Lender) of any Revolving Loans pursuant to this clause (b), the
amount so funded shall become outstanding under such Revolving Loan
Lender's Revolving Note and shall no longer be owed under the Swing Line
Note. All interest payable with respect to any Revolving Loans made (or
deemed made, in the case of the Swing Line Lender) pursuant to this clause
(b) shall be appropriately adjusted to reflect the period of time during
which the Swing Line Lender had outstanding Swing Line Loans in respect of
which such Revolving Loans were made. Each Revolving Loan Lender's
obligation to make the Revolving Loans referred to in this clause (b) shall
be absolute and unconditional and shall not be affected by any
circumstance, including (i) any set-off, counterclaim, recoupment, defense
or other right which such Lender may have against the Swing Line Lender,
any Obligor or any Person for any reason whatsoever; (ii) the occurrence or
continuance of any Default; (iii) any adverse change in the condition
(financial or otherwise) of any Obligor; (iv) the acceleration or maturity
of any Obligations or the termination of any Commitment after the making of
any Swing Line Loan; (v) any breach of any Loan Document by any Person; or
(vi) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Administrative Agent not later than 2:00
p.m. on a Business Day, the Borrower may from time to time irrevocably elect, on
not less than one Business Day's notice in the case of conversions into
Alternate Base Rate Loans, or three Business Days' notice in the case of
continuations of or conversions into Eurodollar Loans, and in either case not
more than five Business Days' notice, that all, or any portion in an aggregate
minimum amount of $[_________] and in an integral multiple of $[_________] be,
in the case of Alternate Base Rate Loans, converted into Eurodollar Loans or be,
in the case of Eurodollar
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Loans, converted into Alternate Base Rate Loans or continued as Eurodollar Loans
(in the absence of delivery of a Continuation/ Conversion Notice with respect to
any Eurodollar Loan at least three Business Days (but not more than five
Business Days) before the last day of the then current Interest Period with
respect thereto, such Eurodollar Loan shall, on such last day, automatically
convert to an Alternate Base Rate Loan); provided that (x) each such conversion
or continuation shall be pro rated among the applicable outstanding Loans of all
Lenders that have made such Loans, and (y) no portion of the outstanding
principal amount of any Loans may be continued as, or be converted into,
Eurodollar Loans when any Payment Default or Event of Default has occurred and
is continuing to the extent the Administrative Agent or Required Lenders have
notified the Borrower that the occurrence and continuance of such Payment
Default or Event of Default shall prevent the Borrower from so continuing or
converting such Loans.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert Eurodollar Loans hereunder by causing
one of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such Eurodollar Loan; provided that
such Eurodollar Loan shall nonetheless be deemed to have been made and to be
held by such Lender, and the obligation of the Borrower to repay such Eurodollar
Loan shall nevertheless be to such Lender for the account of such foreign
branch, Affiliate or international banking facility. In addition, for purposes
of any determination to be made for purposes of Section 4.1, 4.2, 4.3 or 4.4, it
shall be conclusively assumed that each Lender elected to fund all Eurodollar
Loans by purchasing Dollar deposits in its Eurodollar Office's interbank
eurodollar market (as such office may be changed from time to time pursuant to
Section 4.11 or otherwise).
SECTION 2.6. Letter of Credit Issuance Procedures. By delivering to the
Administrative Agent an Issuance Request not later than 12:00 noon on a Business
Day, the Borrower may from time to time irrevocably request on not less than
three nor more than ten Business Days' notice, in the case of an initial
issuance of a Letter of Credit and not less than three Business Days' prior
notice, in the case of a request for the extension of the Stated Expiry Date of
a Letter of Credit (in each case, unless a shorter notice period is agreed to by
the applicable Issuer, in its sole discretion), that such Issuer issue, or
extend the Stated Expiry Date of, a Letter of Credit on behalf of the Borrower
(whether issued for the account of or on behalf of the Borrower or any
Subsidiary) in such form as may be requested by the Borrower and approved by
such Issuer (such approval not to be unreasonably withheld), solely for the
purposes described in Section 7.1.7. Notwithstanding anything to the contrary
contained herein or in any separate application for any Letter of Credit, the
Borrower hereby acknowledges and agrees that it shall be deemed to be the
obligor for purposes of each such Letter of Credit issued hereunder (whether the
account party on such Letter of Credit is the Borrower or a Subsidiary) and
shall be obligated to reimburse the Issuer of such Letter of Credit in
accordance with the reimbursement provisions herein. Each Letter of Credit shall
by its terms be stated to expire on a date (its "Stated Expiry Date") no later
than the earlier to occur of (i) 30 days prior to the Revolving Loan Commitment
Termination Date in the case of standby Letters of Credit or 10 days prior to
the Revolving Loan Commitment Termination Date in the case of trade Letters of
Credit or (ii) (unless otherwise agreed to by the applicable Issuer, in its sole
discretion), 364 days from the date of its issuance. The Issuer of a Letter of
Credit hereunder will make available to the beneficiary thereof the original of
such Letter of Credit which it issues.
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SECTION 2.6.1. Other Lenders' Participation. Upon the issuance of each
Letter of Credit, and without further action, each Revolving Loan Lender (other
than the Issuer thereof) shall be deemed to have irrevocably purchased, to the
extent of its Revolving Loan Percentage of such Letter of Credit, a
participation interest in such Letter of Credit (including the Contingent
Liability and any Reimbursement Obligation with respect thereto), and such
Revolving Loan Lender shall, to the extent of its Revolving Loan Percentage of
such Letter of Credit, be responsible for reimbursing within one Business Day
such Issuer for Reimbursement Obligations which have not been reimbursed by the
Borrower in accordance with Section 2.6.3. In addition, such Revolving Loan
Lender shall be entitled to receive its Revolving Loan Percentage of the Letter
of Credit fees payable pursuant to Section 3.3.3 with respect to each Letter of
Credit (other than the issuance fees payable to the Issuer of such Letter of
Credit pursuant to the last sentence of Section 3.3.3) and of interest payable
pursuant to Section 2.6.2 with respect to any Reimbursement Obligation. To the
extent that any Revolving Loan Lender has reimbursed an Issuer of a Letter of
Credit for a Disbursement, such Lender shall be entitled to receive its ratable
portion of any amounts subsequently received (from the Borrower or otherwise) in
respect of such Disbursement.
SECTION 2.6.2. Disbursements. Each Issuer of a Letter of Credit hereunder
will notify the Borrower and the Administrative Agent promptly of the
presentment for payment of such Letter of Credit, together with notice of the
date (the "Disbursement Date") such payment shall be made (each such payment, a
"Disbursement"). Subject to the terms and provisions of such Letter of Credit
and this Agreement, such Issuer shall make such payment to the beneficiary (or
its designee) of such Letter of Credit. Not later than 12:00 noon on the first
Business Day following the Disbursement Date, the Borrower will reimburse the
Administrative Agent, for the account of such Issuer, for all amounts which such
Issuer has disbursed under such Letter of Credit in good faith, together with
interest thereon at a rate per annum equal to the rate per annum then in effect
for Alternate Base Rate Loans (with the then Applicable Margin for Revolving
Loans accruing on such amount) pursuant to Section 3.2 for the period from the
Disbursement Date through the date of such reimbursement. Without limiting in
any way the foregoing and notwithstanding anything to the contrary contained
herein or in any separate application for any Letter of Credit, the Borrower
hereby acknowledges and agrees that it shall be obligated to reimburse each
Issuer upon each Disbursement by such Issuer of a Letter of Credit made by such
Issuer in good faith, and it shall be deemed to be the obligor for purposes of
each such Letter of Credit issued hereunder (whether the account party on such
Letter of Credit is the Borrower or a Subsidiary).
SECTION 2.6.3. Reimbursement. The obligation (a "Reimbursement Obligation")
of the Borrower under Section 2.6.2 to reimburse each Issuer hereunder with
respect to each Disbursement (including interest thereon) under Letters of
Credit issued by such Issuer, and, upon the failure of the Borrower to reimburse
such Issuer therefor, each Revolving Loan Lender's obligation under Section
2.6.1 to reimburse such Issuer, shall be absolute and unconditional under any
and all circumstances and irrespective of any setoff, counterclaim or defense to
payment which the Borrower or such Revolving Loan Lender, as the case may be,
may have or have had against such Issuer or any Lender, including any defense
based upon the failure of any Disbursement to conform to the terms of the
applicable Letter of Credit (if, in an Issuer's good faith opinion, such
Disbursement is determined to be appropriate) or any non-application or
misapplication by the beneficiary of the proceeds of such Letter of Credit so
long
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as such Disbursement is made in good faith; provided that after paying in full
its Reimbursement Obligation hereunder, nothing herein shall adversely affect
the right of the Borrower or such Lender, as the case may be, to commence any
proceeding against an Issuer for any wrongful Disbursement made by such Issuer
under a Letter of Credit as a result of acts or omissions constituting gross
negligence or willful misconduct on the part of the Issuer.
SECTION 2.6.4. Deemed Disbursements. Upon the occurrence and during the
continuation of any Default under Section 8.1.9 or, upon notification by the
Administrative Agent (acting at the direction of the Required Lenders) to the
Borrower of its obligations under this Section, at any time following the
occurrence and during the continuation of any other Event of Default, (i) the
aggregate Stated Amount of all Letters of Credit shall, without demand upon or
notice to the Borrower or any other Person, be deemed to have been paid or
disbursed by the applicable Issuers of such Letters of Credit (notwithstanding
that such amount may not in fact have been paid or disbursed), and (ii) the
Borrower shall be immediately obligated to deposit with the Administrative Agent
the amount deemed to have been so paid or disbursed by the Issuers. Amounts
payable by the Borrower pursuant to this Section shall be deposited in
immediately available funds with the Administrative Agent and held as collateral
security for the Reimbursement Obligations. When all Defaults giving rise to the
deemed disbursements under this Section have been cured or waived the
Administrative Agent shall return to the Borrower all amounts then on deposit
with the Administrative Agent pursuant to this Section which have not been
applied to the satisfaction of actual Reimbursement Obligations not arising by
operation of this Section 2.6.4.
SECTION 2.6.5. Nature of Reimbursement Obligations. Each Obligor and, to
the extent set forth in Section 2.6.1, each Revolving Loan Lender shall assume
all risks of the acts, omissions or misuse of any Letter of Credit by the
beneficiary thereof. No Issuer (except to the extent of its own bad faith, gross
negligence or willful misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any Letter of Credit or any document submitted by any party in
connection with the application for and issuance of a Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder
or the proceeds thereof in whole or in part, which may prove to be invalid
or ineffective for any reason;
(c) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, telecopier, cable, telegraph, telex or
otherwise; or
(e) any loss or delay in the transmission or otherwise of any document
or draft required in order to make a Disbursement under a Letter of Credit.
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SECTION 2.7. Register; Notes.
(a) Each Lender may maintain in accordance with its usual practice an
account or accounts evidencing the Indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder. In the case of a Lender that does not request, pursuant to
clause (c) below, execution and delivery of a Note evidencing the Loans
made by such Lender to the Borrower, such account or accounts shall, to the
extent not inconsistent with the notations made by the Administrative Agent
in the Register, be conclusive and binding on the Borrower absent manifest
error; provided that the failure of any Lender to maintain such account or
accounts shall not limit or otherwise affect any Obligations of the
Borrower or any other Obligor.
(b) The Borrower hereby designates the Administrative Agent to serve
as the Borrower's agent, solely for the purpose of this clause (b), to
maintain a register (the "Register") in which the Administrative Agent will
record each Lender's Commitments, the Loans made by each Lender and each
repayment in respect of the principal amount of the Loans of each Lender
and annexed to which the Administrative Agent shall retain a copy of each
Lender Assignment Agreement delivered to the Administrative Agent pursuant
to Section 11.11. Failure to make any recordation, or any error in such
recordation, shall not affect the Borrower's obligation in respect of such
Loans. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Administrative Agent and the Lenders
shall treat each Person in whose name a Loan (and as provided in clause (c)
the Note evidencing such Loan, if any) is registered as the owner thereof
for all purposes of this Agreement, notwithstanding notice or any provision
herein to the contrary. A Lender's Commitment and the Loans made pursuant
thereto may be assigned or otherwise transferred in whole or in part only
by registration of such assignment or transfer in the Register. Any
assignment or transfer of a Lender's Commitment and/or the Loans made
pursuant thereto shall be registered in the Register only upon delivery to
the Administrative Agent of a Lender Assignment Agreement duly executed by
the assignor and assignee thereof. No assignment or transfer of a Lender's
Commitment or the Loans made pursuant thereto shall be effective unless
such assignment or transfer shall have been recorded in the Register by the
Administrative Agent as provided in this Section.
(c) The Borrower agrees that, upon the request to the Administrative
Agent by any Lender, the Borrower will execute and deliver to such Lender,
as applicable, a Revolving Note, Term Note and/or Swing Line Note
evidencing the Loans made by such Lender. The Borrower hereby irrevocably
authorizes each Lender to make (or cause to be made) appropriate notations
on the grid attached to such Lender's Notes (or on any continuation of such
grid), which notations, if made, shall evidence, inter alia, the date of,
the outstanding principal amount of, and the interest rate and Interest
Period applicable to the Loans evidenced thereby. Such notations shall, to
the extent not inconsistent with the notations made by the Administrative
Agent in the Register, be conclusive and binding on the Borrower absent
manifest error; provided that the failure of any Lender to make any such
notations or any error in any such notation shall not limit or otherwise
affect any
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Obligations of any Obligor. The Loans evidenced by any such Note and
interest thereon shall at all times (including after assignment pursuant to
Section 11.11) be represented by one or more Notes payable to the order of
the payee named therein and its registered assigns. A Note and the
obligation evidenced thereby may be assigned or otherwise transferred in
whole or in part only by registration of such assignment or transfer of
such Note and the obligation evidenced thereby in the Register (and each
Note shall expressly so provide). Any assignment or transfer of all or part
of an obligation evidenced by a Note shall be registered in the Register
only upon surrender for registration of assignment or transfer of the Note
evidencing such obligation, accompanied by a Lender Assignment Agreement
duly executed by the assignor thereof, and thereupon, if requested by the
assignee, one or more new Notes shall be issued to the designated assignee
and the old Note shall be returned by the Administrative Agent to the
Borrower marked "exchanged". No assignment of a Note and the obligation
evidenced thereby shall be effective unless it shall have been recorded in
the Register by the Administrative Agent as provided in this Section.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application. The Borrower agrees
that the Loans shall be repaid and prepaid pursuant to the following terms.
SECTION 3.1.1. Repayments and Prepayments. The Borrower shall repay in full
the unpaid principal amount of each Loan upon the applicable Stated Maturity
Date therefor. Prior thereto, payments and prepayments of Loans shall or may be
made as set forth below.
(a) From time to time on any Business Day, the Borrower may make a
voluntary prepayment, in whole or in part, of the outstanding principal
amount of any
(i) Loans (other than Swing Line Loans); provided that (A) any
such prepayment of the Term Loans shall be made pro rata among Term
Loans of the same type and, if applicable, having the same Interest
Period of all Lenders that have made such Term Loans, (to be applied
as set forth in Section 3.1.2), and any such prepayment of Revolving
Loans shall be made pro rata among the Revolving Loans of the same
type and, if applicable, having the same Interest Period of all
Lenders that have made such Revolving Loans; (B) all such voluntary
prepayments shall require at least one but no more than five Business
Days' prior written notice to the Administrative Agent; and (C) all
such voluntary partial prepayments shall be, in the case of Eurodollar
Loans, in an aggregate minimum amount of $[_______] and in an integral
multiple of $[_______] and, in the case of Alternate Base Rate Loans,
in an aggregate minimum amount of $[_______] and in an integral
multiple of $[_______]; and
(ii) Swing Line Loans; provided that (A) all such voluntary
prepayments shall require prior telephonic notice to the Swing Line
Lender not later than 2:00 p.m. on the day of such prepayment (such
notice to be confirmed
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in writing within 24 hours thereafter); and (B) all such voluntary
partial prepayments shall be in an aggregate minimum amount of
$[_______] and in an integral multiple of $[_______].
(b) On each date when the sum of (i) the aggregate outstanding
principal amount of all Revolving Loans and Swing Line Loans and (ii) the
aggregate amount of all Letter of Credit Outstandings exceeds the Revolving
Loan Commitment Amount (as it may be reduced from time to time pursuant to
this Agreement), the Borrower shall make a mandatory prepayment of
Revolving Loans or Swing Line Loans (or both) and, if necessary, Cash
Collateralize Letter of Credit Outstandings, in an aggregate amount equal
to such excess.
(c) With respect to the Term Loans, on each Quarterly Payment Date
occurring during the period commencing on the Closing Date through and
including June 30, 2008, the Borrower shall make a scheduled repayment of
the aggregate outstanding principal amount, if any, of all Term Loans in an
aggregate amount equal to $312,500, and, on each Quarterly Payment Date
occurring thereafter, the Borrower shall make a scheduled repayment of the
aggregate outstanding principal amount, if any, of all Term Loans in an
aggregate amount equal to $29,375,000 (in each case as such amounts may
have been reduced pursuant to clause (b) of Section 3.1.2).
(d) Following the receipt by Holdings or any of its Subsidiaries of
any Casualty Proceeds in excess of $1,000,000 (individually or in the
aggregate when taken together with all other Casualty Proceeds and all Net
Disposition Proceeds) over the course of a Fiscal Year), the Borrower shall
deliver to the Administrative Agent a calculation of the amount of such
Casualty Proceeds and make a mandatory prepayment of the Term Loans in an
amount equal to 100% of such Casualty Proceeds within 30 days of the
receipt thereof to be applied as set forth in Section 3.1.2; provided that
no mandatory prepayment on account of Casualty Proceeds shall be required
under this clause if the Borrower informs the Administrative Agent in
writing no later than 30 days following receipt of such Casualty Proceeds
of its or such Subsidiary's good faith intention to apply such Casualty
Proceeds to the rebuilding or replacement of the damaged, destroyed or
condemned assets or property and the Borrower or such Subsidiary in fact
uses such Casualty Proceeds to rebuild or replace such assets or property
within 360 days following the receipt of such Casualty Proceeds, with the
amount of such Casualty Proceeds unused after such 360-day period being
applied to the repayment of Term Loans pursuant to Section 3.1.2; provided,
further, that at any time when any Payment Default or Event of Default
shall have occurred and be continuing, all Casualty Proceeds (together with
Net Disposition Proceeds not applied as provided in clause (e) below) shall
be deposited in an account maintained with the Administrative Agent to pay
for such rebuilding, replacement or use whenever no Payment Default or
Event of Default is then continuing or except as otherwise agreed to by the
Administrative Agent for disbursement at the request of the Borrower or
such Subsidiary, as the case may be.
(e) Following the receipt by Holdings or any of its Subsidiaries of
any Net Disposition Proceeds in excess of $1,000,000 (individually or in
the aggregate when
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taken together with all other Net Disposition Proceeds and all Casualty
Proceeds) over the course of a Fiscal Year), the Borrower shall deliver to
the Administrative Agent a calculation of the amount of such Net
Disposition Proceeds and make a mandatory prepayment of the Term Loans in
an amount equal to 100% of such Net Disposition Proceeds within one
Business Day of the receipt thereof to be applied as set forth in Section
3.1.2; provided that no mandatory prepayment on account of Net Disposition
Proceeds shall be required under this clause (e) either (i) if the Borrower
informs the Administrative Agent in writing promptly following the receipt
of such Net Disposition Proceeds of its or such Subsidiary's good faith
intention to reinvest such Net Disposition Proceeds in assets or property
that will be used or useful in its business and the Borrower or such
Subsidiary in fact so reinvests such Net Disposition Proceeds within 360
days following the receipt of such Net Disposition Proceeds, with the
amount of such Net Disposition Proceeds not so reinvested after such
360-day period being applied to the repayment of Term Loans pursuant to
Section 3.1.2 or (ii) to the extent of the outstanding aggregate principal
amount of the Bridge Loans, if such Net Disposition Proceeds are in respect
of the AmerCable Disposition, so long as such Net Disposition Proceeds are
applied to repay the Bridge Loans or, if the Merger Closing Date has not
yet then occurred, deposited in an account maintained with the
Administrative Agent pending application to repayment of the Bridge Loans
on the Merger Closing Date; provided further that at any time when any
Payment Default or Event of Default shall have occurred and be continuing,
all Net Disposition Proceeds (together with Casualty Proceeds not applied
as provided in clause (d) above) shall be deposited in an account
maintained with the Administrative Agent to be so used whenever no Payment
Default or Event of Default is then continuing or except as otherwise
agreed to by the Administrative Agent for disbursement at the request of
the Borrower.
(f) No later than five Business Days following the delivery of its
annual audited financial reports required pursuant to clause (b) of Section
7.1.1, the Borrower shall deliver to the Agents a calculation of the Excess
Cash Flow for the Fiscal Year then last ended and make a mandatory
prepayment of the Term Loans in an amount equal to the applicable ECF
Percentage of Excess Cash Flow (if any) for such Fiscal Year, to be applied
as set forth in Section 3.1.2.
(g) Concurrently with the receipt by Holdings, the Borrower or any
Subsidiary of any Net Debt Proceeds, the Borrower shall deliver to the
Administrative Agent a calculation of the amount of such Net Debt Proceeds,
and make a mandatory prepayment of the Term Loans in an amount equal to
100% of such Net Debt Proceeds to be applied as set forth in Section 3.1.2;
provided that no such mandatory prepayment with respect to any such Net
Debt Proceeds received after the Closing Date shall be required to the
extent (but only to the extent) such Net Debt Proceeds are received from
the issuance of Unsecured Transaction Debt and are used for purposes of
paying or prepaying Bridge Loans.
(h) Concurrently with the receipt by Holdings of any Net Equity
Proceeds, the Borrower shall deliver to the Administrative Agent a
calculation of the amount of such Net Equity Proceeds and make a mandatory
prepayment of the Term Loans in an amount equal to 50% of such Net Equity
Proceeds to be applied as set forth in Section 3.1.2;
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provided that no such mandatory prepayment with respect to any such Net
Equity Proceeds shall be required (i) to the extent such Net Equity
Proceeds are used solely to repay or prepay outstanding Bridge Loans
(together with all breakage costs and related fees and expenses (if any)
payable under the Bridge Loan Agreement) or (ii) if the Leverage Ratio was
less than 2.00:1 as of the last day of the most recent Fiscal Quarter for
which a Compliance Certificate was delivered pursuant to clause (c) of
Section 7.1.1.
(i) Immediately upon any acceleration of any Loans pursuant to Section
8.2 or Section 8.3, the Borrower shall repay all the Loans, unless,
pursuant to Section 8.3, only a portion of all the Loans is so accelerated
(in which case the portion so accelerated shall be so repaid).
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by Section 4.4.
SECTION 3.1.2. Application. Amounts prepaid pursuant to Section 3.1.1 shall
be applied as set forth in this Section.
(a) Subject to clause (b), each prepayment or repayment of the
principal of the Loans shall be applied, to the extent of such prepayment
or repayment, first, to the principal amount thereof being maintained as
Alternate Base Rate Loans, and second, subject to the terms of Section 4.4,
to the principal amount thereof being maintained as Eurodollar Loans.
(b) Each prepayment of Term Loans made pursuant to clauses (a), (d),
(e), (f), (g) and (h) of Section 3.1.1 shall be applied (i) first, to a
mandatory prepayment of the outstanding principal amount of all Term Loans
(with the amount of such prepayment of the Term Loans being applied to the
remaining scheduled amortization payments of the Term Loans, pro rata in
accordance with the amount of each such remaining Term Loan amortization
payment after giving effect to all prior reductions thereto, and (ii)
second, once all Term Loans have been repaid in full, to the repayment of
any outstanding Revolving Loans.
SECTION 3.2. Interest Provisions. Interest on the outstanding principal
amount of Loans shall accrue and be payable by the Borrower in accordance with
the terms set forth below.
SECTION 3.2.1. Rates. Subject to Section 2.3.2, pursuant to an
appropriately delivered Borrowing Request or Continuation/Conversion Notice, the
Borrower may elect that Loans comprising a Borrowing accrue interest at a rate
per annum (i) on that portion maintained from time to time as an Alternate Base
Rate Loan, equal to the sum of the Alternate Base Rate from time to time in
effect plus the Applicable Margin; provided that Swing Line Loans shall always
accrue interest at the then effective Applicable Margin for Revolving Loans
maintained as Alternate Base Rate Loans, and (ii) on that portion maintained as
a Eurodollar Loan, during each Interest Period applicable thereto, equal to the
sum of the Eurodollar Rate for such Interest Period plus the Applicable Margin.
All Eurodollar Loans shall bear interest from and including the first day of the
applicable Interest Period to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such Eurodollar Loan.
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SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount of
any Loan or Reimbursement Obligation is due and payable (whether on the Stated
Maturity Date, upon acceleration or otherwise), or after any other monetary
Obligation of the Borrower shall have become due and payable, the Borrower shall
pay interest (after as well as before judgment) on such delinquent amounts at a
rate per annum equal to 2% plus the higher of (i) the Alternate Base Rate from
time to time in effect plus the Applicable Margin for Alternate Base Rate Loans
and (ii) the rate otherwise applicable to such Loan or other monetary
Obligation.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or in part, of
principal outstanding on such Loan on the principal amount so paid or
prepaid;
(c) with respect to Alternate Base Rate Loans, on each Quarterly
Payment Date occurring after the Closing Date;
(d) with respect to Eurodollar Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall exceed three
months, on the date occurring on each three-month interval occurring after
the first day of such Interest Period);
(e) with respect to any Alternate Base Rate Loans converted into
Eurodollar Loans on a day when interest would not otherwise have been
payable pursuant to clause (c), on the date of such conversion; and
(f) on that portion of any Loans the Stated Maturity Date of which is
accelerated pursuant to Section 8.2 or Section 8.3, immediately upon such
acceleration.
Interest accrued on Loans or other monetary Obligations after the date such
amount is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
SECTION 3.3. Fees. The Borrower agrees to pay the fees set forth below.
Except as otherwise provided in the Agents' Fee Letter, all such fees shall be
non-refundable.
SECTION 3.3.1. Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Loan Lender, for the
period (including any portion thereof when the Revolving Loan Commitment is
suspended by reason of the Borrower's inability to satisfy any condition of
Section 5.1 or 5.2) commencing on the Closing Date and continuing through the
Revolving Loan Commitment Termination Date, a commitment fee in an amount equal
to the Applicable Commitment Fee, in each case on such Lender's Revolving Loan
Percentage of the sum of the average daily unused portion of the Revolving Loan
Commitment Amount (net of Letter of Credit Outstandings). All commitment fees
payable pursuant to this Section shall be payable by the Borrower in arrears on
each Quarterly Payment Date, commencing with the first Quarterly Payment Date
following the Closing Date and on the
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Revolving Loan Commitment Termination Date. Payments by the Borrower to the
Swing Line Lender in respect of accrued interest on any Swing Line Loan shall be
net of the commitment fee payable in respect of the Swing Line Lender's
Revolving Loan Commitment (or, in the case such Revolving Loan Commitment
exceeds the aggregate principal amount of such Swing Line Loan, the portion of
such Revolving Loan Commitment equal to such aggregate principal amount) for the
period during which such Swing Line Loan was outstanding.
SECTION 3.3.2. Agents' Fee. The Borrower agrees to pay the fees in the
amounts and on the dates set forth in the Agents' Fee Letter.
SECTION 3.3.3. Letter of Credit Fees. The Borrower agrees to pay to the
Administrative Agent, for the pro rata account of each Revolving Loan Lender, a
Letter of Credit fee in an amount per annum equal to the then effective
Applicable Margin for Revolving Loans maintained as Eurodollar Loans, multiplied
by the Stated Amount of each such Letter of Credit, such fees being payable
quarterly in arrears on each Quarterly Payment Date following the date of
issuance of each Letter of Credit and on the Revolving Loan Commitment
Termination Date. The Borrower further agrees to pay to each Issuer (subject to
the proviso to this sentence) quarterly in arrears on each Quarterly Payment
Date following the date of each issuance and extension of each Letter of Credit
issued or extended by such Issuer and on the Revolving Loan Commitment
Termination Date, a facing fee in an amount equal to 1/8 of 1% per annum on the
Stated Amount of such Letter of Credit; provided that, if on the date any Letter
of Credit is issued and on each anniversary thereof the facing fee which would
accrue with respect to such Letter of Credit over the succeeding 365 days
(assuming such Letter of Credit would remain undrawn until its Stated Expiry
Date) would be less than $500, the Borrower shall pay such Issuer a facing fee
of $500 with respect to such Letter of Credit in advance on the date of such
issuance or anniversary. In addition to the fees described in the preceding two
sentences of this Section 3.3.3, the Borrower agrees to pay to each Issuer its
customary processing fees for issuing, modifying and making payment under each
Letter of Credit issued by it.
ARTICLE IV
CERTAIN EURODOLLAR AND OTHER PROVISIONS
SECTION 4.1. Eurodollar Lending Unlawful. If any Lender shall in good faith
determine (which determination shall, upon notice thereof to the Borrower and
the Administrative Agent, be conclusive and binding on the Borrower) that the
introduction of or any change in or in the interpretation of any law makes it
unlawful, or any Governmental Authority asserts that it is unlawful, for such
Lender to make or continue any Loan as, or to convert any Loan into, a
Eurodollar Loan, the obligations of such Lender to make, continue or convert any
such Eurodollar Loan shall, upon such determination, forthwith be suspended
until such Lender shall notify the Administrative Agent that the circumstances
causing such suspension no longer exist, and all outstanding Eurodollar Loans
payable to such Lender shall automatically convert into Alternate Base Rate
Loans at the end of the then current Interest Periods with respect thereto or
sooner, if required by such law or assertion.
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SECTION 4.2. Deposits Unavailable. If the Administrative Agent shall have
determined that
(a) Dollar deposits in the relevant amount and for the relevant
Interest Period are not available to it in the interbank eurodollar market;
or
(b) by reason of circumstances affecting the interbank eurodollar
market, adequate means do not exist for ascertaining the interest rate
applicable hereunder to Eurodollar Loans;
then, upon notice from the Administrative Agent to the Borrower and the Lenders,
the obligations of all Lenders under Section 2.3 and Section 2.4 to make or
continue any Loans as, or to convert any Loans into, Eurodollar Loans shall
forthwith be suspended until the Administrative Agent shall notify the Borrower
and the Lenders that the circumstances causing such suspension no longer exist.
SECTION 4.3. Increased Eurodollar Loan Costs, etc. The Borrower agrees to
reimburse each Lender for any increase in the cost to such Lender of, or any
reduction in the amount of any sum receivable by such Lender in respect of, such
Lender's Commitments hereunder in respect of Eurodollar Loans (including the
making, continuing or maintaining (or of such Lender's obligation to make or
continue) any Eurodollar Loans) that arise in connection with any change in, or
the introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in after the Closing Date of, any law or regulation, directive, guideline,
decision or request (whether or not having the force of law) of any Governmental
Authority, except for such changes with respect to increased capital costs and
Taxes which are governed by Sections 4.5 and 4.6, respectively. Each affected
Lender shall promptly notify the Administrative Agent and the Borrower in
writing of the occurrence of any such event, stating, in reasonable detail, the
reasons therefor and the additional amount required fully to compensate such
Lender for such increased cost or reduced amount. Such additional amounts shall
be payable by the Borrower directly to such Lender within five days of its
receipt of such notice, and such notice shall, in the absence of manifest error,
be conclusive and binding on the Borrower.
SECTION 4.4. Funding Losses. In the event any Lender shall incur any loss
or expense (including any loss or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to make or
continue any portion of the principal amount of any Loan as, or to convert any
portion of the principal amount of any Loan into, a Eurodollar Loan (but
excluding any loss of margin after the date of the relevant conversion,
repayment, prepayment or failure to borrow, continue or convert) as a result of
(a) any conversion or repayment or prepayment of the principal amount
of any Eurodollar Loan on a date other than the scheduled last day of the
Interest Period applicable thereto, whether pursuant to Article III or
otherwise;
(b) any Loans not being made as Eurodollar Loans in accordance with
the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into, Eurodollar
Loans in accordance with the Continuation/Conversion Notice therefor;
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then, upon the written notice of such Lender to the Borrower (with a copy to the
Administrative Agent), the Borrower shall, within five days of its receipt
thereof, pay directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or expense.
Such written notice shall, in the absence of manifest error, be conclusive and
binding on the Borrower.
SECTION 4.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any Governmental Authority affects
or would affect the amount of capital required or expected to be maintained by
any Lender or any Person controlling such Lender, and such Lender determines (in
its good faith discretion) that the rate of return on its or such controlling
Person's capital as a consequence of the Commitments or the Credit Extensions
made, or the Letters of Credit participated in, by such Lender is reduced to a
level below that which such Lender or such controlling Person could have
achieved but for the occurrence of any such circumstance, then upon notice from
time to time by such Lender to the Borrower, the Borrower shall within five days
following receipt of such notice pay directly to such Lender additional amounts
sufficient to compensate such Lender or such controlling Person for such
reduction in rate of return. A statement of such Lender as to any such
additional amount or amounts and setting forth in reasonable detail the
calculation thereof shall, in the absence of manifest error, be conclusive and
binding on the Borrower. In determining such amount, such Lender may use any
reasonable method of averaging and attribution that it (in its sole and absolute
discretion) shall deem applicable; provided that such Lender may not impose
materially greater costs on the Borrower than on any similarly situated borrower
by virtue of any such averaging or attribution method.
SECTION 4.6. Taxes. The Borrower covenants and agrees as follows with
respect to Taxes.
(a) Any and all payments by the Borrower under each Loan Document
shall be made without setoff, counterclaim or other defense, and free and
clear of, and without deduction or withholding for or on account of, any
Taxes. In the event that any Taxes are required by any law or Governmental
Authority to be deducted or withheld from any payment required to be made
by the Borrower to or on behalf of the Administrative Agent or any Lender
under any Loan Document, then:
(i) subject to clause (f), if such Taxes are Non-Excluded Taxes,
the amount of such payment shall be increased as may be necessary such
that such payment is made, after withholding or deduction for or on
account of such Taxes, in an amount that is not less than the amount
provided for in such Loan Document; and
(ii) the Borrower shall withhold the full amount of such Taxes
from such payment (as increased pursuant to clause (a)(i)) and shall
pay such amount to the Governmental Authority imposing such Taxes in
accordance with applicable law.
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(b) In addition, the Borrower shall pay any and all Other Taxes
imposed to the relevant Governmental Authority imposing such Other Taxes in
accordance with applicable law.
(c) As promptly as practicable after the payment of any Taxes or Other
Taxes, and in any event within 45 days of any such payment being due, the
Borrower shall furnish to the Administrative Agent a copy of an official
receipt (or a certified copy thereof (or, if such copy or copy thereof is
not available from the relevant taxing authority within 45 days of such
payment being due, within 5 days of the day on which such copy or copy
thereof is first available from the relevant taxing authority)), evidencing
the payment of such Taxes or Other Taxes. The Administrative Agent shall
make copies thereof available to any Lender upon request therefor.
(d) Subject to clause (f), the Borrower shall indemnify each Agent and
each Lender for any Non-Excluded Taxes and Other Taxes levied, imposed or
assessed on (and whether or not paid directly by) such Agent or Lender
(whether or not such Non-Excluded Taxes or Other Taxes are correctly or
legally asserted by the relevant Governmental Authority). Promptly upon
having knowledge that any such Non-Excluded Taxes or Other Taxes have been
levied, imposed or assessed, and promptly upon notice thereof by any Agent
or Lender, the Borrower shall pay such Non-Excluded Taxes or Other Taxes
directly to the relevant Governmental Authority (provided that no Agent or
Lender shall be under any obligation to provide any such notice to the
Borrower). In addition, the Borrower shall indemnify each Agent and each
Lender for any incremental Taxes that may become payable by such Agent or
Lender as a result of any failure of the Borrower to pay any Taxes when due
to the appropriate Governmental Authority (except to the extent such
incremental Taxes result solely from the failure of the Secured Party to
give notice to the Borrower of Taxes subject to indemnity under this clause
(d) and the Borrower did not otherwise have knowledge of such Taxes) or to
deliver to the Administrative Agent, pursuant to clause (c), documentation
evidencing the payment of Taxes or Other Taxes. With respect to
indemnification for Non-Excluded Taxes and Other Taxes actually paid by any
Agent or Lender or the indemnification provided in the immediately
preceding sentence, such indemnification shall be made within 30 days after
the date such Agent or Lender makes written demand therefor. The Borrower
acknowledges that any payment made to any Agent or Lender or to any
Governmental Authority in respect of the indemnification obligations of the
Borrower provided in this clause shall constitute a payment in respect of
which the provisions of clause (a) and this clause shall apply.
(e) Each Non-Domestic Lender, on or prior to the date on which such
Non-Domestic Lender becomes a Lender hereunder, shall deliver to the
Borrower and the Administrative Agent either
(iii) two materially accurate and duly completed copies of either
(A) Internal Revenue Service Form W-8BEN claiming benefits of an
income tax treaty (or an applicable successor form) or (B) Internal
Revenue Service Form W-8ECI (or an applicable successor form); or
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(iv) in the case of a Non-Domestic Lender that is not legally
entitled to deliver either form listed in clause (e)(i), (x) a
certificate of a duly authorized officer of such Non-Domestic Lender
to the effect that such Non-Domestic Lender is not (A) a "bank" within
the meaning of Section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of the Borrower within the meaning of Section
881(c)(3)(B) of the Code, or (C) a controlled foreign corporation
receiving interest from a related person within the meaning of Section
881(c)(3)(C) of the Code (such certificate, an "Exemption
Certificate"), (y) two materially accurate and duly completed copies
of Internal Revenue Service Form W-8BEN (or applicable successor form)
and (z) such forms that establish a complete exemption from United
States withholding tax with respect to any payment hereunder other
than principal and interest.
In addition, each Non-Domestic Lender agrees that from time to time after
the Closing Date, when a lapse in time or change in circumstances renders
the previous certification obsolete or inaccurate in any material respect,
it will deliver to the Borrower or the Administrative Agent two materially
accurate and duly completed original signed replacement copies of, as
applicable, such form or forms and an Exemption Certificate, or it shall
immediately notify the Borrower and the Administrative Agent of its
inability to deliver any such form or Exemption Certificate.
(f) The Borrower shall not be obligated to gross up any payments to
any Agent or any Lender pursuant to clause (a)(i), or to indemnify any
Agent or any Lender pursuant to clause (d), in respect of United States
federal withholding taxes to the extent imposed as a result of (i) the
failure of any Agent or Lender to deliver to the Borrower the form or forms
and/or an Exemption Certificate, as applicable to such Agent or Lender,
pursuant to clause (e), (ii) such form or forms and/or Exemption
Certificate not establishing a complete exemption from U.S. federal
withholding tax or the information or certifications made therein by such
Agent or such Lender being untrue or inaccurate on the date delivered in
any material respect, or (iii) the Lender designating a successor lending
office at which it maintains its Loans which has the effect of causing such
Agent or Lender to become obligated for tax payments in excess of those in
effect immediately prior to such designation; provided that the Borrower
shall be obligated to gross up any payments, excluding payments other than
principal and interest made to a Non-Domestic Lender providing forms under
clause (e)(ii), to any such Agent or Lender pursuant to clause (a)(i), and
to indemnify any such Agent or Lender pursuant to clause (d), in respect of
United States federal withholding taxes if (i) any such failure to deliver
a form or forms or an Exemption Certificate or the failure of such form or
forms or Exemption Certificate to establish a complete exemption from U.S.
federal withholding tax or inaccuracy or untruth contained therein resulted
from a change in any applicable statute, treaty, regulation or other
applicable law or any case law, revenue ruling or notice or pronouncement
by a Governmental Authority interpreting any of the foregoing occurring
after the Closing Date, which change rendered such Agent or Lender no
longer legally entitled to deliver such form or forms or Exemption
Certificate or otherwise ineligible for a complete exemption from U.S.
federal withholding tax, or rendered the information or certifications made
in such form or forms or Exemption Certificate untrue or inaccurate
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in a material respect or (ii) the obligation to gross up payments to any
such Agent or Lender pursuant to clause (a)(i) or to indemnify any such
Agent or Lender pursuant to clause (d) is with respect to an Assignee
Lender that becomes an Assignee Lender as a result of an assignment made at
the request of the Borrower.
(g) If the Administrative Agent or any Lender receives a refund in
respect of Taxes as to which it has been grossed up by the Borrower
pursuant to clause (a)(i) or indemnified by the Borrower pursuant to clause
(d) and the Administrative Agent or the Lender, as applicable, determines
in its sole, good faith judgment that such refund is attributable to such
gross up or indemnification, then the Lender or the Administrative Agent,
as the case may be, shall pay such amount to the Borrower as the Lender or
the Administrative Agent determines to be the proportion of the refund as
will leave it, after such payment, in no better or worse financial position
with respect to Tax liabilities and related expenses than it would have
been in absent such payment. Neither the Lenders nor the Administrative
Agent shall be obligated to disclose information regarding its tax affairs
or computations to the Borrower in connection with this clause (g) or any
other provision of this Section 4.6.
SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
provided in a Loan Document, all payments by the Borrower pursuant to each Loan
Document shall be made by the Borrower to the Administrative Agent for the pro
rata account of the Administrative Agent and the Lenders entitled to receive
such payment. All payments shall be made without setoff, deduction or
counterclaim not later than 12:00 noon on the date due in same day or
immediately available funds to such account as the Administrative Agent shall
specify from time to time by notice to the Borrower. Funds received after that
time shall be deemed to have been received by the Administrative Agent on the
next succeeding Business Day. The Administrative Agent shall promptly remit in
same day funds to each Lender its share, if any, of such payments received by
the Administrative Agent for the account of such Lender. All interest (including
interest on Eurodollar Loans) and fees shall be computed on the basis of the
actual number of days (including the first day but excluding the last day)
occurring during the period for which such interest or fee is payable over a
year comprised of 360 days (or, in the case of interest on an Alternate Base
Rate Loan, 365 days or, if appropriate, 366 days). Payments due on a day other
than a Business Day shall (except as otherwise required by clause (iii) of the
definition of the term "Interest Period") be made on the next succeeding
Business Day and such extension of time shall be included in computing interest
and fees in connection with that payment.
SECTION 4.8. Sharing of Payments. If any Secured Party shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Credit Extension or Reimbursement
Obligation (other than pursuant to the terms of Sections 4.3, 4.4, 4.5 or 4.6)
in excess of its pro rata share of payments obtained by all Secured Parties,
such Secured Party shall purchase from the other Secured Parties such
participations in Credit Extensions made by them as shall be necessary to cause
such purchasing Secured Party to share the excess payment or other recovery
ratably (to the extent such other Secured Parties were entitled to receive a
portion of such payment or recovery) with each of them; provided that if all or
any portion of the excess payment or other recovery is thereafter recovered from
such purchasing Secured Party, the purchase shall be rescinded and each Secured
Party which has sold a participation to the purchasing Secured Party shall repay
to the purchasing Secured Party the purchase price to the ratable extent of such
recovery together
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with an amount equal to such selling Secured Party's ratable share (according to
the proportion of (a)the amount of such selling Secured Party's required
repayment to the purchasing Secured Party to (b)total amount so recovered from
the purchasing Secured Party) of any interest or other amount paid or payable by
the purchasing Secured Party in respect of the total amount so recovered. The
Borrower agrees that any Secured Party purchasing a participation from another
Secured Party pursuant to this Section may, to the fullest extent permitted by
law, exercise all its rights of payment (including pursuant to Section 4.9) with
respect to such participation as fully as if such Secured Party were the direct
creditor of the Borrower in the amount of such participation. If under any
applicable bankruptcy, insolvency or other similar law any Secured Party
receives a secured claim in lieu of a setoff to which this Section applies, such
Secured Party shall, to the extent practicable, exercise its rights in respect
of such secured claim in a manner consistent with the rights of the Secured
Parties entitled under this Section to share in the benefits of any recovery on
such secured claim.
SECTION 4.9. Setoff. Each Agent and each Lender shall, upon the occurrence
and during the continuance of any Event of Default described in clauses (a)
through (d) of Section 8.1.9 or, with the consent of the Required Lenders, upon
the occurrence and during the continuance of any other Event of Default, have
the right to appropriate and apply to the payment of the Obligations owing to it
(whether or not then due), and (as security for such Obligations) the Borrower
hereby grants to each Agent and each Lender a continuing security interest in,
any and all balances, credits, deposits, accounts or moneys of the Borrower then
or thereafter maintained with each Agent and each Lender; provided that any such
appropriation and application shall be subject to the provisions of Section 4.8.
Each Agent and each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such setoff and application made by each Agent
and each Lender; provided that the failure to give such notice shall not affect
the validity of such setoff and application. The rights of each Agent and each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff under applicable law or otherwise) which such
Agent and such Lender may have.
SECTION 4.10. Replacement of Lenders. If any Lender (an "Affected Lender")
(x) makes a demand upon the Borrower for (or if the Borrower is otherwise
required to pay) amounts pursuant to Section 4.3, 4.5 or 4.6 (and the payment of
such amounts are more onerous in the reasonable judgment of the Borrower than
with respect to the other Lenders), or gives notice pursuant to Section 4.1
requiring a conversion of such Affected Lender's Eurodollar Loans to Alternate
Base Rate Loans or suspending such Lender's obligation to make Loans as, or to
convert Loans into, Eurodollar Loans, or (y) is then subject to a Lender
Default, the Borrower may, within 30 days of receipt by the Borrower of such
demand or notice, as the case may be, give notice (a "Replacement Notice") in
writing to the Agents and such Affected Lender of its intention to replace such
Affected Lender with a financial institution or other Person (a "Replacement
Lender") designated in such Replacement Notice; provided that no Replacement
Notice may be given by the Borrower and no such replacement may occur if (i)
such replacement conflicts or would conflict with any applicable law or
regulation, (ii) unless the Agents otherwise consent, any Event of Default shall
have occurred and be continuing at the time of the giving of such notice or the
time of such replacement or (iii) prior to the giving of such notice or the time
of any such replacement, such Lender, in the Borrower's reasonable judgment,
shall have taken any necessary action under Section 4.3, 4.5 or 4.6 (if
applicable) so as to eliminate the continued need for payment of amounts owing
pursuant to Section 4.3, 4.5 or 4.6 or shall have cured the failure or other
event that resulted in any relevant Lender Default. If the Administrative Agent
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shall, in the exercise of its reasonable discretion and within five Business
Days of its receipt of such Replacement Notice, notify the Borrower and such
Affected Lender in writing that the Replacement Lender is satisfactory to the
Administrative Agent (such consent not being required where the Replacement
Lender is already a Lender), then such Affected Lender shall, subject to the
payment of any amounts due to the Affected Lender pursuant to Section 4.4,
assign, in accordance with Section 11.11, all of its Commitments, Loans, Notes
(if any) and other rights and obligations under this Agreement and all other
Loan Documents (including Reimbursement Obligations, if applicable) to such
Replacement Lender; provided that (i) such assignment shall be without recourse,
representation or warranty and shall be on terms and conditions reasonably
satisfactory to such Affected Lender and such Replacement Lender, (ii) the
purchase price paid by such Replacement Lender shall be in the amount of such
Affected Lender's Loans and its Percentage of outstanding Reimbursement
Obligations, together with all accrued and unpaid interest and fees in respect
thereof, plus all other amounts (including the amounts demanded and unreimbursed
under Sections 4.3, 4.5 and 4.6), owing to such Affected Lender hereunder and
(iii) the Borrower shall pay to the Affected Lender and the Administrative Agent
to the extent so requested all reasonable out-of-pocket expenses incurred by the
Affected Lender and the Agents in connection with such assignment and assumption
(including the processing fees described in Section 11.11). Upon the Closing
Date of an assignment described above, the Replacement Lender shall become a
"Lender" for all purposes under this Agreement and the other Loan Documents.
SECTION 4.11. Change of Lending Office. Each Lender agrees that if it makes
any demand for payment under Sections 4.3, 4.4, 4.5 or 4.6, or if any
introduction or change of the type described in Section 4.1 shall occur with
respect to it, it will use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions and so long as such efforts would
not be disadvantageous to it, as determined in its sole discretion) to designate
a different lending office if the making of such a designation would reduce or
obviate the need for the Borrower to make payments under Section 4.3, 4.4, 4.5
or 4.6, or would eliminate or reduce the effect of any introduction or change
described in Section 4.1.
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. Initial Credit Extension. The obligations of the Lenders and,
if applicable, each Issuer to fund the initial Credit Extension shall be subject
to the prior or concurrent satisfaction of each of the conditions precedent set
forth in this Section 5.1.
SECTION 5.1.1. Resolutions, etc. The Agents shall have received from each
Obligor, as applicable, (i) a copy of a good standing certificate, dated a date
reasonably close to the Closing Date, for each such Person and (ii) a
certificate, dated the Closing Date, duly executed and delivered by such
Person's Secretary or Assistant Secretary, managing member or general partner,
as applicable, as to
(a) resolutions of each such Person's Board of Directors (or other
managing body, in the case of other than a corporation) then in full force
and effect authorizing, to the extent relevant, all aspects of the
Transaction applicable to such Person and the
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execution, delivery and performance of each Loan Document to be executed by
such Person and the transactions contemplated hereby and thereby;
(b) the incumbency and signatures of those of its officers, managing
member or general partner, as applicable, authorized to act with respect to
each Loan Document to be executed by such Person (each, an "Authorized
Officer"); and
(c) the full force and validity of each Organic Document of such
Person and copies thereof;
upon which certificates each Secured Party may conclusively rely until it shall
have received a further certificate of the Secretary, Assistant Secretary,
managing member or general partner, as applicable, of any such Person canceling
or amending the prior certificate of such Person.
SECTION 5.1.2. Material Transaction Documents. None of the Material
Transaction Documents (including the Acquisition Agreement) shall have been
amended, supplemented, waived or otherwise modified in any material respect
after the date of the Commitment Letter without the prior written consent of the
Agents (which consent shall not be unreasonably withheld). The Agents shall have
received (with copies for each Lender that has expressly requested copies
thereof) fully executed copies of each of the Material Transaction Documents,
certified to be true and complete copies thereof by an Authorized Officer of
Holdings. The Material Transaction Documents shall be in full force and effect
as of the Tender Offer Closing Date and the parties thereto shall be in full
compliance therewith in all material respects.
SECTION 5.1.3. Tender Offer Completed. On the Closing Date, Mergerco shall
have accepted for purchase not less than the Minimum Shares, the Minimum
Condition shall have been satisfied concurrently with the initial Credit
Extension hereunder, and all other aspects of the Tender Offer required to be
completed on the Closing Date shall have been consummated pursuant to the
Material Transaction Documents. The Tender Offer and the financing thereof shall
have been consummated in compliance with all applicable laws and regulations
(including Regulation U of the F.R.S. Board) and shall not be subject to any
injunction or similar order.
SECTION 5.1.4. Debt Tender Offer. On the Closing Date, the Minimum Debt
Tender Condition shall have been satisfied in full, and AMI shall have
repurchased or redeemed all Existing Notes tendered (and not withdrawn) for
repurchase or redemption by the holders thereof pursuant to the Debt Tender and
Refinancing, and AMI shall have paid to such holders all principal, interest and
premiums then due and payable on or in respect of such Existing Notes as a
result of the Debt Tender, the Refinancing or otherwise, in all cases in full
and in cash with proceeds of the Term Loans, the Cash on Hand and, if necessary,
the Additional Equity Investment.
SECTION 5.1.5. Supplemental Indenture. The Agents shall have received a
copy of the Supplemental Indenture in form and substance, reasonably acceptable
to the Agents.
SECTION 5.1.6. Antitakeover Statutes. The restrictions in Section 203 of
the Delaware General Corporation Law (the "DGCL") shall be inapplicable to the
acquisition of the Shares and to any subsequent transactions between Mergerco or
any of its affiliates and the Borrower or
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any of its affiliates, and all conditions to avoiding the restrictions contained
therein shall have been satisfied.
SECTION 5.1.7. No Impediments to the Merger. The Agents shall be reasonably
satisfied that, after giving effect to the consummation of the Tender Offer,
there are no legal impediments to effecting the Merger under Section 251 or
Section 253, as the case may be, of the DGCL, and the Merger can be consummated
pursuant to the terms of the Acquisition Agreement.
SECTION 5.1.8. Mergerco Debt Financing. Mergerco shall have received not
less than $165,000,000 in aggregate gross proceeds from the Mergerco Debt
Financing, which shall be on terms and conditions (including, as applicable, as
to Subordination Provisions) and pursuant to documentation reasonably
satisfactory to the Agents.
SECTION 5.1.9. Equity Investment. Mergerco shall have received not less
than $172,000,000 from the Equity Investment, which shall be on terms and
conditions and pursuant to documentation reasonably satisfactory to the Agents;
provided that the Additional Equity Investment shall be required to be made, on
a dollar-for-dollar basis, to the extent that the amounts referred to in clauses
(i), (ii)(x) and (ii)(y) of the third recital is less $179,200,000.
SECTION 5.1.10. Payment of Outstanding Indebtedness, etc. All Indebtedness
identified in Item 7.2.2(b) of the Disclosure Schedule (including all
Indebtedness outstanding under the Existing Credit Agreement), together with all
interest, all prepayment premiums and other amounts due and payable with respect
thereto, shall have been paid in full from the proceeds of the initial Credit
Extension and the commitments in respect of such Indebtedness (including all
commitments under the Existing Credit Agreement) shall have been terminated, and
all Liens securing payment of any such Indebtedness have been released; provided
that nothing herein shall limit the requirements of the condition precedent set
forth above in Section 5.1.4. The Administrative Agent shall have received such
releases of all Liens (except Permitted Liens) securing payment of any such
Indebtedness as may have been reasonably requested by the Administrative Agent,
which releases shall be in form and substance reasonably satisfactory to the
Agents. Without limiting the foregoing, there shall have been delivered (i)
properly executed termination statements (Form UCC-3 or such other termination
statements as shall be required by local law) for filing under the UCC of each
jurisdiction where a financing statement (Form UCC-1 or the appropriate
equivalent) was filed with respect to the Borrower and any of its Subsidiaries,
or its predecessors in interest, in connection with any security interests
created with respect to any Indebtedness listed on Item 7.2.2(b) of the
Disclosure Schedule and the documentation related thereto, (ii) properly
executed payoff letters with respect to any Indebtedness listed in Item 7.2.2(b)
of the Disclosure Schedule, (iii) terminations of assignments of any security
interest in, or Lien on, any patents, trademarks, copyrights or similar
interests of the Borrower and any of its Subsidiaries, on which filings have
been made to secure any Indebtedness listed on Item 7.2.2(b) of the Disclosure
Schedule, (iv) terminations of all mortgages, leasehold mortgages and deeds of
trust created with respect to property of Holdings, the Borrower and any of
their respective Subsidiaries, or their respective predecessors in interest, in
each case to secure the obligations under any Indebtedness listed on Item
7.2.2(b) of the Disclosure Schedule, all of which shall be in form and substance
reasonably satisfactory to the Agents and (v) all collateral owned by the
Borrower and any of its Subsidiaries in the possession of any agent, collateral
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agent or trustee for the creditors under any Indebtedness listed on Item
7.2.2(b) of the Disclosure Schedule or any financial institution party to any
agreement in respect of any such Indebtedness or any related agreement.
SECTION 5.1.11. Closing Date Certificate. The Agents shall have received
the Closing Date Certificate, dated the Closing Date and duly executed and
delivered by an Authorized Officer of each of Holdings, Mergerco and AMI, in
which certificate Holdings, Mergerco and AMI shall agree and acknowledge that
the statements made therein shall be deemed to be true and correct
representations and warranties of such Person as of such date and, at the time
such certificate is delivered such statements shall in fact be true and correct.
All material documents and agreements required to be appended to the Closing
Date Certificate shall be in form and substance reasonably satisfactory to the
Agents.
SECTION 5.1.12. Delivery of Notes. The Agents shall have received, for the
account of each Lender that has requested in writing two Business Days prior to
the Closing Date a Note or Notes, such Lender's Note or Notes duly executed and
delivered by an Authorized Officer of the Borrower.
SECTION 5.1.13. Closing Fees, Expenses, etc. The Agents shall have received
for their respective accounts, or for the account of each Lender, as the case
may be, all fees, costs and expenses due and payable on or prior to the Closing
Date in accordance with the Agents' Fee Letter and pursuant to Section 3.3 and,
to the extent then invoiced, Section 11.3.
SECTION 5.1.14. No Material Adverse Effect. Since December 31, 2001, there
has been no change, development or event which, individually or when taken
together with all other circumstances, changes or events, has had, or would
reasonably be expected to have, a Material Adverse Effect.
SECTION 5.1.15. Term Loan Escrow Account. The Agents shall have received,
with counterparts for each Lender, the Term Loan Escrow Agreement, dated as of
the Closing Date, duly executed and delivered by the Administrative Agent, the
Borrower and the escrow agent thereunder.
SECTION 5.1.16. Mergerco Guaranty. The Agents shall have received, with
counterparts for each Lender, the Mergerco Guaranty, dated as of the Closing
Date, duly executed and delivered by an Authorized Officer of Mergerco.
SECTION 5.1.17. Subsidiary Guaranty. The Agents shall have received, with
counterparts for each Lender, the Subsidiary Guaranty, dated as of the Closing
Date, duly executed and delivered by an Authorized Officer of each wholly-owned
Domestic Subsidiary of the Borrower.
SECTION 5.1.18. Solvency Certificate. The Agents shall have received, with
counterparts for each Lender, a certificate duly executed and delivered by the
chief financial or accounting Authorized Officer of the Borrower, dated the
Closing Date, in the form of Exhibit I attached hereto.
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SECTION 5.1.19. Security and Pledge Agreements. The Agents shall have
received, with counterparts for each Lender, each Security and Pledge Agreement,
dated as of the Closing Date and duly executed and delivered by an Authorized
Officer of each of Holdings, the Borrower and each Subsidiary Guarantor, as
applicable, together with
(a) certificates evidencing all of the issued and outstanding Capital
Stock pledged pursuant to the applicable Security and Pledge Agreement,
which certificates in each case shall be accompanied by undated instruments
of transfer duly executed in blank, or, if any such shares of Capital Stock
pledged pursuant to such Security and Pledge Agreement are uncertificated
securities, the Administrative Agent shall have obtained "control" (as
defined in the UCC) over such shares of Capital Stock) and such other
instruments and documents as may be necessary under applicable law, in the
reasonable opinion of the Administrative Agent, to perfect the first
priority security interest of the Administrative Agent in such shares of
Capital Stock;
(b) all Intercompany Notes, if any, pledged pursuant to the Security
and Pledge Agreement;
(c) executed copies of Filing Statements naming each such Obligor as a
debtor and the Administrative Agent as the secured party, or other similar
instruments or documents to be filed under the Uniform Commercial Code of
all jurisdictions as the Administrative Agent may reasonably require to
perfect the security interests of the Administrative Agent pursuant to the
Security and Pledge Agreement;
(d) executed copies of proper UCC termination statements (Form UCC-3),
if any, necessary to release all Liens and other rights of any Person (i)
in any collateral described in the applicable Security and Pledge Agreement
previously granted by any Person, and (ii) securing any of the Indebtedness
identified in Item 7.2.2(b) of the Disclosure Schedule and required to be
released pursuant to Section 5.1.10; and
(e) certified copies of UCC Requests for Information or Copies (Form
UCC-11), or a similar search report certified by a party acceptable to the
Administrative Agent, dated a date reasonably near to the Closing Date,
listing all effective financing statements which name each such Obligor
(under its present name and any previous names under which it has done
business during the five-year period prior to the Closing Date) as the
debtor and which are filed in the jurisdictions in which filings are to be
made pursuant to clause (c) above, together with copies of such financing
statements (none of which shall cover collateral described in any Loan
Document except to the extent being released pursuant to clause (d) above
or constituting Permitted Liens.
The Agents shall be reasonably satisfied that (i) the Lien granted to the
Administrative Agent, for the benefit of the Secured Parties in the collateral
described above is a first priority (or local equivalent thereof) security
interest subject only to Permitted Liens; and (ii) no Lien exists on any of the
collateral described above other than the Lien created in favor of the
Administrative Agent, for the benefit of the Secured Parties, pursuant to a Loan
Document and Permitted Liens.
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SECTION 5.1.20. Patent Security Agreement, Copyright Security Agreement and
Trademark Security Agreement. The Agents shall have received the Patent Security
Agreement, the Copyright Security Agreement and the Trademark Security
Agreement, as applicable, each dated as of the Closing Date, duly executed and
delivered by an Authorized Officer of each Obligor that has delivered a Security
and Pledge Agreement.
SECTION 5.1.21. Mortgages. The Agents shall have received each Mortgage,
dated as of the Closing Date, duly executed and delivered by the applicable
Obligor, together with
(a) evidence of the completion (or satisfactory arrangements for the
completion) of all recordings and filings of each such Mortgage as may be
necessary or, in the reasonable opinion of the Administrative Agent,
desirable to create a valid, first priority perfected Lien (subject only to
Liens permitted hereunder) against the properties purported to be covered
thereby;
(b) mortgagee's title insurance policies in favor of the
Administrative Agent for the benefit of the Secured Parties in amounts and
in form and substance and issued by insurers, reasonably satisfactory to
the Administrative Agent, with respect to the property purported to be
covered by each Mortgage, insuring the Mortgagor's title to such property
and that the interests created by each Mortgage constitute valid first
Liens thereon free and clear of all material defects and encumbrances other
than as permitted hereunder or as otherwise approved by the Administrative
Agent, and such policies shall also include, if required by the
Administrative Agent and if available, revolving credit endorsement,
comprehensive endorsement, variable rate endorsement, access and utilities
endorsements, mechanic's lien endorsement and such other endorsements as
the Administrative Agent shall reasonably request and shall be accompanied
by evidence of the payment in full of all premiums thereon; and
(c) such other reasonable approvals, opinions, or documents as the
Administrative Agent may reasonably request with respect to such real
property, including consents and estoppel agreements from landlords, and an
existing survey of each property purported to be covered by a Mortgage in
form and substance reasonably satisfactory to the Administrative Agent and
the title insurer, Title Associates Inc.
SECTION 5.1.22. Perfection Certificate, Filing Agent, etc. The Agents shall
have received Perfection Certificates, dated the Closing Date, duly executed and
delivered by an Authorized Officer of each Obligor that is a party to a
Collateral Document. All UCC financing statements (Form UCC-1) or other similar
financing statements and UCC termination statements (Form UCC-3) (collectively,
the "Filing Statements") required to be delivered on the Closing Date pursuant
to the Loan Documents shall have been delivered to CT Corporation System or
another similar filing service company acceptable to the Agents (the "Filing
Agent"). The Filing Agent shall have acknowledged in a writing satisfactory to
the Agents (i) the Filing Agent's receipt of all Filing Statements, (ii) that
the Filing Statements have either been submitted for filing in the appropriate
filing offices or will be submitted for filing in the appropriate offices within
ten days following the Closing Date and (iii) that the Filing Agent will notify
the Agents of the results of such submissions within 30 days following the
Closing Date.
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SECTION 5.1.23. Insurance. The Agents shall have received insurance
certificates, from one or more insurance companies reasonably satisfactory to
the Agents, evidencing coverage required to be maintained pursuant to the Loan
Documents.
SECTION 5.1.24. Approvals. All material governmental, shareholder and third
party consents (including ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ clearance) and approvals necessary
in connection with the consummation of the Acquisition and all other parts of
the Transaction, and the related financings and other transactions contemplated
hereby and thereby, shall have been duly obtained and all applicable waiting
periods shall have expired without any action being taken by any competent
authority that could restrain, prevent or impose any materially adverse
conditions on the Acquisition or any other part of the Transaction or the
continued operations of Holdings, the Borrower or any of their respective
Subsidiaries.
SECTION 5.1.25. Opinions of Counsel. The Agents shall have received
opinions, dated the Closing Date and addressed to the Agents and all Lenders,
from:
(a) White & Case LLP, counsel to the Obligors, in form and substance
reasonably satisfactory to the Agents;
(b) ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to AMI, in form and substance
reasonably satisfactory to the Agents;
(c) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., Texas local counsel to the Obligors on
Texas real estate matters, in form and substance reasonably satisfactory to
the Agents; and
(d) Vorys, ▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇, Ohio local counsel to the Obligors
on Ohio real estate matters, in form and substance reasonably satisfactory
to the Agents.
SECTION 5.2. All Credit Extensions. The obligation of each Lender and each
Issuer to make any Credit Extension (including the initial Credit Extension)
shall be subject to, and the satisfaction of, each of the conditions precedent
set forth below.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. At the time of
each Credit Extension and after giving effect thereto (i) the representations
and warranties set forth in each Loan Document shall, in each case, be true and
correct in all material respects with the same effect as if then made (unless
stated to relate to a specified earlier date, in which case such representations
and warranties shall be true and correct in all material respects as of such
earlier date) and (ii) no Default shall have then occurred and be continuing.
SECTION 5.2.2. Credit Extension Request, etc. Subject to Section 2.3.2, the
Administrative Agent shall have received a Borrowing Request if Loans are being
requested, or an Issuance Request if a Letter of Credit is being requested or
extended. Each of the delivery of a Borrowing Request or Issuance Request and
the acceptance by the Borrower of the proceeds of such Credit Extension shall
constitute a representation and warranty by the Borrower that on the date of
such Credit Extension (both immediately before and after giving effect to such
Credit Extension and the application of the proceeds thereof) the statements
made in Section 5.2.1, are true and correct in all material respects.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Agents and the Lenders to enter into this Agreement
and to make Credit Extensions hereunder, each of Holdings and the Borrower makes
(as to itself and its Subsidiaries) the following representations, warranties
and agreements as of the Closing Date (both before and after giving effect to
the Credit Extensions occurring on such date and the Transaction and all
references to the Agents and the Lenders herein and elsewhere in this Agreement,
shall, unless otherwise specifically indicated, be references to the Agents and
the Lenders after giving effect to the Transaction) and as of the date of each
Credit Extension, which representations, warranties and agreements shall survive
the execution and delivery of this Agreement and the Notes and the occurrence of
each Credit Extension (with the occurrence of each Credit Extension being deemed
to constitute a representation and warranty that the matters specified in this
Article VI are true and correct in all material respects on and as of the date
of such Credit Extension unless such representations and warranties are stated
to relate to a specific earlier date in which case such representations and
warranties shall be true and correct in all material respects as of such earlier
date).
SECTION 6.1. Organization, etc. Each of Holdings, the Borrower and each
Subsidiary of the Borrower (i) is validly organized and existing and in good
standing under the laws of the state or jurisdiction of its incorporation or
organization, (ii) is duly qualified to do business and is in good standing as a
foreign entity in each jurisdiction where the nature of its business requires
such qualification and where the failure to be so qualified could reasonably be
expected to have a Material Adverse Effect) and (iii) has full corporate,
partnership or limited liability company power and authority, as the case may
be, to own and hold under lease its property and to conduct its business
substantially as currently conducted by it.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by each Obligor of each Loan Document executed or to be
executed by it, each such Obligor's participation in the consummation of all
aspects of the Transaction, and the execution, delivery and performance by such
Obligor of the agreements executed and delivered by it in connection with the
Transaction are in each case within each such Person's corporate, partnership or
limited liability company powers, as the case may be, have been duly authorized
by all necessary corporate, partnership or limited liability company action, as
the case may be, and, except as disclosed in Item 6.2 of the Disclosure
Schedule, do not (i) contravene any (A) Obligor's Organic Documents, (B)
material contractual restriction binding on or affecting any Obligor, (C) court
decree or order binding on or affecting any Obligor or (D) material law or
governmental regulation binding on or affecting any Obligor, or (ii) result in,
or require the creation or imposition of, any Lien on any Obligor's properties
(except as permitted by this Agreement).
SECTION 6.3. Government Approval, Regulation, etc. [Except as disclosed in
Item 6.3 of the Disclosure Schedule,] no material authorization or approval or
other action by, and no material notice to or filing with, any Governmental
Authority or other Person (other than those (x) that have been, or on the
Closing Date, will be, or, in the case of Filing Statements delivered on the
Closing Date, will be within 10 days of the Closing Date, duly obtained or made
and which are, or on the Closing Date will be, or, in the case of Filing
Statements delivered on the
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Closing Date, will be within 10 days of the Closing Date, in full force and
effect and (y) that are contemplated or required to be made after the Closing
Date in accordance with the terms of the Loan Documents and the Material
Transaction Documents) is required for (i) the due execution, delivery or
performance by any Obligor of any Loan Document to which it is a party or (ii)
the due execution, delivery and/or performance by any Obligor of the Material
Transaction Documents to which each is a party, or (iii) the conduct of the
business of the Borrower and its Subsidiaries as currently conducted following
the Closing Date. Neither Holdings, the Borrower nor any of their respective
Subsidiaries is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
SECTION 6.4. Validity, etc. Each Loan Document and the Material Transaction
Documents to which each Obligor is a party constitute, or will, on the due
execution and delivery thereof by such Obligor, constitute, the legal, valid and
binding obligations of such Obligor, enforceable against it in accordance with
their respective terms (except, in any case, as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally and by principles of equity).
SECTION 6.5. Financial Information. Holdings and the Borrower each
represent and warrant as follows as the following financial information and
matters:
(a) All balance sheets, all statements of operations, shareholders'
equity and cash flow and all other financial information relating to
Holdings furnished pursuant to Section 7.1.1 have been and will for periods
following the Closing Date be prepared in accordance with GAAP consistently
applied, and present fairly in all material respects the consolidated
financial condition of the Persons covered thereby as at the dates thereof
and the results of their operations for the periods then ended.
(b) None of Holdings, the Borrower or any of their respective
Subsidiaries have any material liabilities (matured or unmatured, fixed or
contingent) that were not fully reflected or provided for on the financial
statements delivered pursuant to clause (b) of Section 7.1.1 and which
could reasonably be expected to have a Material Adverse Effect.
SECTION 6.6. No Material Adverse Effect. There has been no event,
occurrence, omission or change which has resulted in a Material Adverse Effect
since December 31, 2001.
SECTION 6.7. Litigation. Except as disclosed in Item 6.7 of the Disclosure
Schedule, there is no pending or, to the knowledge of the Borrower, threatened
litigation, action or proceeding (i) affecting Holdings, the Borrower or any of
their respective Subsidiaries or any of their respective properties, businesses,
assets or revenues, which could reasonably be expected to have a Material
Adverse Effect, or (ii) which purports to affect the legality, validity or
enforceability of any Loan Document.
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SECTION 6.8. Labor Matters. There is no labor strike, work stoppage,
lockout or other work action or other labor controversy, and no such dispute or
controversy is actually pending or, to Holdings', the Borrower's or any of their
respective Subsidiaries' knowledge, threatened against or affecting Holdings,
the Borrower of any of their respective Subsidiaries that has had or could
reasonably be expected to have a Material Adverse Effect.
SECTION 6.9. Subsidiaries. Holdings has no Subsidiaries except for (i)
immediately prior to the Tender Offer Closing Date, Mergerco; and (ii) at all
times thereafter, Mergerco, the Borrower and the Subsidiaries of the Borrower
described in the succeeding sentence. The Borrower has no Subsidiaries, except
those Subsidiaries (A) which are identified in Item 6.9 of the Disclosure
Schedule, or (B) which are permitted to have been organized or acquired in
accordance with the terms of this Agreement. Item 6.9 of the Disclosure Schedule
(i) lists, with respect to each Subsidiary, (A) the state or jurisdiction of
such Subsidiary's incorporation or organization and (B) the percentage of shares
of the Capital Stock of such Subsidiary owned by Holdings, the Borrower or
another Subsidiary, (ii) identifies each Subsidiary which is a Foreign
Subsidiary and (iii) identifies each Subsidiary which is a Non-Material
Subsidiary.
SECTION 6.10. Ownership of Properties. Each of Holdings, the Borrower and
each Subsidiary of the Borrower maintains (i) in the case of material owned real
property, good and marketable fee title to, (ii) in the case of material owned
personal property, good and valid title to, or (iii) in the case of material
leased real or personal property, valid and enforceable leasehold interests (as
the case may be) in, all of such properties and assets, real and personal,
tangible and intangible, of any nature whatsoever, free and clear in each case
of all Liens or claims, except for Liens permitted pursuant to Section 7.2.3.
Item 6.10 of the Disclosure Schedule contains a complete and accurate
description, by owner/lessor and location (by street address) of all owned
and/or leased real properties as of the Closing Date (as supplemented from time
to time with information provided by Holdings or the Borrower, as the case may
be, in the Compliance Certificate delivered by Holdings or the Borrower, as the
case may be, to the Agents pursuant to clause (c) of Section 7.1.1; provided
that Item 6.10 shall not be required to be supplemented at any time other than
such times as the Compliance Certificate is delivered or required to be
delivered hereunder.
SECTION 6.11. Taxes. Except as disclosed in Item 6.11 of the Disclosure
Schedule, each of Holdings, the Borrower and each of their respective
Subsidiaries has filed all material Tax returns and reports required by law to
have been filed by it, has withheld all material Taxes that were required to be
withheld in respect of compensation or other amounts paid to any employee or
independent contractor (or, in the case of independent contractors, Holdings,
the Borrower or the relevant Subsidiary has the right to indemnification with
respect thereto) and has paid all material Taxes and governmental charges
thereby shown or required to be due and owing, except any such Taxes or charges
which are being contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books.
SECTION 6.12. Pension and Welfare Plans. During the
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement and prior to the date of any Credit Extension hereunder, no
steps have been taken to terminate any Pension Plan, and no contribution failure
has occurred with respect to any Pension Plan sufficient to give rise to a Lien
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under Section 302(f) of ERISA, that could (individually or in the aggregate)
reasonably be expected to result in liabilities in excess of $2,500,000 or a
Material Adverse Effect. No condition exists or event or transaction has
occurred with respect to any Pension Plan which could reasonably be expected to
result in the incurrence by Holdings, the Borrower or any member of the
Controlled Group of any material liability, fine or penalty, that could
(individually or in the aggregate) reasonably be expected to result in
liabilities in excess of $2,500,000 or a Material Adverse Effect. None of
Holdings, the Borrower nor any member of the Controlled Group has any contingent
liability with respect to any post-retirement benefit under a Welfare Plan,
other than liability for continuation coverage described in Part 6 of Subtitle B
of Title I of ERISA, which could reasonably be expected to result in a Material
Adverse Effect. None of Holdings, the Borrower or any member of the Controlled
Group has any obligation with respect to a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
SECTION 6.13. Environmental Warranties. The Borrower represents and
warrants that, except as disclosed in Item 6.13 of the Disclosure Schedule:
(a) all facilities and property (including underlying groundwater)
owned or leased by Holdings, the Borrower or any of their respective
Subsidiaries and their operations are in compliance with all Environmental
Laws, except for any such noncompliance that could not (individually or in
the aggregate) reasonably be expected to have a Material Adverse Effect;
(b) there are no pending or, to the Knowledge of Holdings, any
threatened (i) claims, complaints, notices or requests for information,
proceedings, or investigation against or involving Holdings, the Borrower
or any of their respective Subsidiaries with respect to any alleged
violation of any Environmental Law, or (ii) complaints, notices or
inquiries to Holdings, the Borrower or any of their respective Subsidiaries
regarding actual or potential liability under any Environmental Law, that,
with respect to clauses (i) and (ii) of this paragraph, could (individually
or in the aggregate) reasonably be expected to have a Material Adverse
Effect;
(c) there have been no Releases of Hazardous Materials at, on or under
or from any property or facility now or previously owned, leased or
operated by Holdings, the Borrower or any of their respective Subsidiaries
that could (individually or in the aggregate) reasonably be expected to
have a Material Adverse Effect;
(d) Holdings and its Subsidiaries (i) have been issued all permits,
certificates, approvals, licenses and other authorizations pursuant to
Environmental Laws necessary for the operation of their business
("Environmental Permits") and are in compliance with all Environmental
Permits (except to the extent the failure to have or be in compliance with
any such Environmental Permit could not (individually or in the aggregate)
reasonably be expected to have a Material Adverse Effect) and (ii) are in
compliance therewith except to the extent such non-compliance would not
reasonably be expected to have a Material Adverse Effect;
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(e) no property or facility now or previously owned, leased or
operated by Holdings or its Subsidiaries is listed, or proposed for listing
on the National Priorities List pursuant to CERCLA, on the CERCLIS or on
any similar state list of sites;
(f) there are no underground storage tanks or related piping, active
or abandoned, including petroleum storage tanks, on or under any property
now owned or leased by Holdings, the Borrower or any of their respective
Subsidiaries or, to the knowledge of Holdings or the Borrower at any
property previously owned or leased by Holdings, or the Borrower or any of
their respective Subsidiaries, that could (individually or in the
aggregate) reasonably be expected to have a Material Adverse Effect;
(g) none of Holdings, the Borrower nor any of their respective
Subsidiaries has transported or arranged for the transportation of any
Hazardous Material to any location which is listed or proposed for listing
on the National Priorities List pursuant to CERCLA, on the CERCLIS or on
any similar state list or which is the subject of federal, state or local
enforcement actions or other investigations which may lead to material
claims against Holdings, the Borrower or such Subsidiary for any
investigatory or remedial work, damage to natural resources or personal
injury or property damage, including claims under CERCLA, which could
(individually or in the aggregate) reasonably be expected to have a
Material Adverse Effect;
(h) there are no polychlorinated biphenyls or friable asbestos present
at any property now or previously owned or leased by Holdings, the Borrower
or any of their respective Subsidiaries that could (individually or in the
aggregate) reasonably be expected to have a Material Adverse Effect;
(i) neither it nor any of its Subsidiaries (i) has manufactured any
product containing asbestos or (ii) except for certain fibrous boards sold
from the Borrower's Buffalo, New York facility, has sold any product
containing asbestos; and
(j) no conditions exist at, on or under any property now or previously
owned or leased by Holdings or the Borrower or any of their respective
Subsidiaries, or to the knowledge of Holdings or the Borrower, at any
property previously owned or leased by Holdings, the Borrower or any of
their respective Subsidiaries, that could, with the passage of time, or the
giving of notice or both, reasonably be expected (individually or in the
aggregate) to have a Material Adverse Effect under any Environmental Law.
SECTION 6.14. Accuracy of Information. None of the factual information
(excluding projections) heretofore or contemporaneously furnished in writing to
any Agent or any Lender by or on behalf of any Obligor in connection with any
Loan Document or any transaction contemplated hereby (including the
Transaction), taken as a whole, contains any untrue statements of material fact,
or omits to state any material facts necessary in either case to make such
information taken as a whole not materially misleading in light of the
circumstances under which such information was provided and no other factual
information hereafter furnished in connection with any Loan Document by or on
behalf of any Obligor, any Agent or to any Lender will contain any untrue
statements of material fact or will omit to state any material facts in either
case necessary to make such information taken as a whole not materially
misleading on the
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date as of which such information is dated or certified in light of the
circumstances under which such information was provided.
SECTION 6.15. Regulations U and X. None of Holdings, the Borrower or any of
their respective Subsidiaries is engaged in the business of extending credit for
the purpose of purchasing or carrying margin stock, and, except to pay the
Merger Consideration, or to refinance outstanding Bridge Loans no proceeds of
any Credit Extensions will be used to purchase or carry margin stock or
otherwise for a purpose which violates, or would be inconsistent with, F.R.S.
Board Regulation U or Regulation X. Terms for which meanings are provided in
F.R.S. Board Regulation U or Regulation X or any regulations substituted
therefor, as from time to time in effect, are used in this Section with such
meanings.
SECTION 6.16. Issuance of Subordinated Debt, Status of Obligations as
Senior Indebtedness, etc. Mergerco has the corporate power and authority to
incur the Unsecured Transaction Debt and has duly authorized, executed and
delivered the Other Debt Documents applicable to such Unsecured Transaction
Debt. The subordination provisions contained in the Other Debt Documents
applicable to the Unsecured Transaction Debt that is subordinted are enforceable
against the holders of the applicable Unsecured Transaction Debt by the holder
of any "Senior Indebtedness" or similar term referring to the Obligations (as
defined in the applicable Other Debt Documents). All Obligations, including
those to pay principal of and interest (including interest accruing subsequent
to the filing of, or which would have accrued but for the filing of, a petition
for bankruptcy, reorganization or similar proceeding, whether or not allowed as
a claim under such proceeding) on the Loans and Reimbursement Obligations, and
fees and expenses in connection therewith, constitute "Senior Indebtedness" or
similar term relating to the Obligations (as defined in the applicable Other
Debt Documents) and all such Obligations are entitled to the benefits of the
subordination created by such Other Debt Documents. The Borrower acknowledges
that each Agent, each Lender and each Issuer is entering into this Agreement and
is extending its Commitments in reliance upon the subordination provisions of
the Other Debt Documents relating to the Unsecured Transaction Debt.
SECTION 6.17. Solvency. After giving effect to each Credit Extension
hereunder, Holdings, the Borrower and each Subsidiary Guarantor (taken together)
are Solvent.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. Holdings and the Borrower agree with
each Secured Party hereto that, until the Termination Date has occurred,
Holdings and the Borrower will perform, or cause to be performed, the
obligations set forth below.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. Holdings and
the Borrower will furnish, or cause to be furnished, to the Administrative Agent
and to the Syndication Agent copies of the following financial statements,
reports, notices and information:
(a) (i) as soon as available and in any event within 30 days after the
end of each calendar month (other than the last month of a Fiscal Quarter),
the unaudited
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consolidated balance sheets of Holdings as of the end of such calendar
month and the related unaudited consolidated statements of income and cash
flows of Holdings for such calendar month and for the elapsed portion of
the Fiscal Year ended with the end of such calendar month, and including
(in each case), in comparative form the figures for the corresponding
calendar month in, and year to date portion of, the immediately preceding
Fiscal Year and comparable budgeted figures for such period, and (ii) as
soon as available and in any event within 45 days after the end of each of
the first three Fiscal Quarters of each Fiscal Year, the unaudited
consolidated balance sheet of Holdings as of the end of such Fiscal Quarter
and the related unaudited consolidated statements of income and cash flows
of Holdings for such Fiscal Quarter and for the elapsed portion of the
Fiscal Year ended with the end of such Fiscal Quarter, and including (in
each case), in comparative form the figures for the corresponding Fiscal
Quarter in, and year to date portion of, the immediately preceding Fiscal
Year and comparable budgeted figures for such period, in each case
certified by the chief financial or accounting Authorized Officer of
Holdings that they present fairly in all material respects in accordance
with GAAP the financial position of Holdings as of the date indicated and
the results of its operations and changes in its cash flows for the periods
indicated, subject to normal year-end audit adjustments and the absence of
footnotes;
(b) as soon as available and in any event within 90 days after the end
of each Fiscal Year, a copy of the consolidated balance sheet of Holdings
and the related consolidated statements of income and cash flows of
Holdings for such Fiscal Year, setting forth in comparative form the
figures for the immediately preceding Fiscal Year and comparable budgeted
figures for such period in each case audited (without any Impermissible
Qualification) by a nationally recognized accounting firm or other
independent public accountants reasonably acceptable to the Agents, which
shall include a statement that, in performing the examination necessary to
deliver the audited financial statements of Holdings, no knowledge was
obtained of any Event of Default;
(c) concurrently with the delivery of the financial information
pursuant to clauses (a)(ii) and (b) of this Section 7.1.1, a Compliance
Certificate, executed by the chief financial or accounting Authorized
Officer of Holdings, showing compliance with the financial covenants set
forth in Section 7.2.4 and stating that no Default has occurred and is
continuing (or, if a Default has occurred, specifying the details of such
Default and the action that the applicable Obligor has taken or proposes to
take with respect thereto);
(d) as soon as available and in any event within 60 days after the end
of each Fiscal Year, capital and operating budgets for Holdings, in form
and scope customarily prepared by management for its internal use and
consistent with past practice prepared by Holdings (and approved by the
Board of Directors of Holdings) for each calendar month of the succeeding
Fiscal Year prepared in reasonable detail with discussion of the principal
assumptions upon which such budgets are based;
(e) as soon as possible and in any event within three Business Days
after any officer of any Obligor obtains knowledge of the occurrence of a
Default, a statement of an Authorized Officer of Holdings or the Borrower
setting forth details of such Default and the action which such Obligor has
taken and proposes to take with respect thereto;
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(f) as soon as possible and in any event within three Business Days
after any officer of any Obligor obtains knowledge of the commencement of
any litigation, action, proceeding or labor controversy or of an adverse
development in any existing litigation, action, proceeding or labor
controversy which could reasonably be expected to have a Material Adverse
Effect, notice thereof and, to the extent either the Administrative Agent
or the Syndication Agent requests, copies of all material and
non-privileged documentation relating thereto;
(g) promptly after the sending or filing thereof, copies of all
reports, notices, prospectuses and registration statements which any
Obligor files with the SEC or any national securities exchange;
(h) as soon as possible and in any event within three Business Days of
any officer of any Obligor becoming aware of any of the following which,
individually or in the aggregate, could reasonably be expected to result in
liabilities in excess of $2,500,000 or a Material Adverse Effect: (i) the
institution of any steps by any Person to terminate any Pension Plan, (ii)
the failure to make a required contribution to any Pension Plan if such
failure is sufficient to give rise to a Lien under Section 302(f) of ERISA,
(iii) the taking of any action with respect to a Pension Plan which could
result in the requirement that any Obligor furnish a bond or other security
to the PBGC or such Pension Plan, or (iv) the occurrence of any event with
respect to any Pension Plan which could result in the incurrence by any
Obligor of any liability, fine or penalty, notice thereof and copies of all
documentation relating thereto;
(i) promptly upon receipt thereof, copies of all final "management
letters" submitted to any Obligor by the independent public accountants
referred to in clause (b) in connection with each audit made by such
accountants;
(j) promptly following the mailing or receipt of any notice or report
delivered under the terms of any Subordinated Debt with respect to a breach
or default thereunder, copies of such notice or report; and
(k) such other financial and other information as the Required
Lenders, the Administrative Agent or the Syndication Agent may from time to
time reasonably request, and, in the event a Default has occurred and is
continuing or in the event a Lender or Issuer has not had an opportunity to
request such other financial or other information pursuant to a bank
meeting or visit referred to in Section 7.1.5 or otherwise in any 90-day
period, such other financial and other information as such Lender or Issuer
may reasonably request.
SECTION 7.1.2. Maintenance of Existence; Compliance with Laws, etc. Each of
Holdings and the Borrower will
(a) preserve and maintain (i) its legal existence and (ii) its
qualification as a foreign corporation in each jurisdiction where the
nature of its business or the location of its assets requires it to be so
qualified, except to the extent the failure to be so qualified would not
result in a Material Adverse Effect;
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(b) cause each of its Subsidiaries to, except as otherwise permitted
by Section 7.2.10, preserve and maintain its legal existence and
qualification as a foreign entity in each jurisdiction where the nature of
the business or the location of its assets requires it to be so qualified,
except to the extent the failure to be so qualified would not result in a
Material Adverse Effect; and
(c) comply with all applicable laws, rules, regulations and orders,
including the payment (before the same become delinquent) of all taxes,
assessments and governmental charges imposed upon Holdings, the Borrower or
any of their respective Subsidiaries or upon their property except (i) to
the extent being contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP have been set aside on the
books of Holdings, the Borrower or any such Subsidiary, as applicable, or
(ii) to the extent such non-compliance or non-payment could not reasonably
be expected to have a Material Adverse Effect.
SECTION 7.1.3. Maintenance of Properties. Each of Holdings and the Borrower
will, and will cause each of their respective Subsidiaries to, maintain,
preserve, protect and keep its and their respective material properties in good
repair, working order and condition (ordinary wear and tear excepted and damage
or taking by a Casualty Event), and make necessary repairs, renewals and
replacements to the extent necessary to operate the business carried on by
Holdings and its Subsidiaries as it is currently conducted, unless Holdings, the
Borrower or any such Subsidiary determines in good faith that the continued
maintenance of such property is no longer economically desirable.
SECTION 7.1.4. Insurance. Holdings and the Borrower will, and will cause
each of their respective Subsidiaries to, maintain insurance with financially
sound and reputable insurance companies, and with respect to property and risks
of a character usually maintained by Persons of comparable size engaged in the
same or similar business and similarly situated, against loss, damage and
liability of the kinds and in the amounts customarily maintained by such
Persons. In any event, unless otherwise agreed by the Agents, insurance will be
maintained in at least such amounts and against at least such risks as are set
forth in Item 7.1.4 of the Disclosure Schedule. Holdings, the Borrower, and
their respective Subsidiaries shall furnish to each Lender, upon written
request, full information as to the insurance carried. At any time that
insurance at levels described in Item 7.1.4 of the Disclosure Schedule is not
being maintained by an Obligor, the Borrower will notify the Agents in writing
within two Business Days thereof and, if thereafter notified by the Required
Lenders to do so, such Obligor, as the case may be, shall obtain insurance at
such levels at least equal to those set forth in Item 7.1.4 of the Disclosure
Schedule. The provisions of this Section 7.1.4 shall be deemed to be
supplemental to, but not duplicative of, the provisions of any other Loan
Document that requires the maintenance of insurance.
All such insurance shall be written by financially responsible companies
selected by Holdings and the Borrower and (except for automobile insurance)
having an A.M. Best rating of "A" or better and being in a financial size
category of VII or larger (or an equivalent rating of any successor publication
of a similar nature), or by other companies acceptable to the Administrative
Agent. Holdings shall cause each of the other Obligors to, and the Borrower
shall, keep its property insured in favor of the Administrative Agent, and all
policies (including
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mortgage title insurance policies) or certificates (or certified copies thereof)
with respect to such insurance (and any other insurance maintained by the
Obligors (other than workers' compensation, employee benefit insurance and
directors and officers liability insurance)) (i) shall be endorsed to the
Administrative Agent's satisfaction for the benefit of the Administrative Agent
and (ii) shall name the Administrative Agent as loss payee (to the extent
covering risk of loss or damage to tangible property) and as an additional named
insured as its interests may appear (to the extent covering any other risk).
Each policy referred to in this Section 7.1.4 shall provide that (i) the
respective insurers irrevocably waive any and all rights of subrogation with
respect to the Administrative Agent, (ii) it will not be canceled or reduced, or
allowed to lapse without renewal, except after not less than 30 days' written
notice to the Administrative Agent and (iii) the interests of the Administrative
Agent and the Lenders shall not be invalidated by (A) any act or negligence of
Holdings or the Borrower, any of their respective Subsidiaries or any Person
having an interest in any property covered by a Mortgage, (B) occupancy or use
of any such property for purposes more hazardous than permitted by such policy
or (C) any foreclosure or other proceedings relating to such property. Each of
Holdings and the Borrower will advise the Administrative Agent promptly of any
significant policy cancellation (other than any such cancellation in connection
with the replacement thereof), reduction or amendment. The Administrative Agent
agrees to turn over to the Borrower or relevant Subsidiary any insurance
proceeds received by it as loss payee following receipt by the Administrative
Agent of written notice from the Borrower or its relevant Subsidiary of its
intended use of such proceeds, to the extent such proceeds are not required to
be (i) applied at such time to repay Loans or Cash Collateralize Letter of
Credit Outstandings or held in an account by the Administrative Agent pursuant
to Section 3.1.1 or (ii) held by the Agents pursuant to the terms of any
Mortgage or Security and Pledge Agreement.
On or before the Closing Date, Holdings and the Borrower will deliver to
the Administrative Agent certificates of insurance reasonably satisfactory to
the Administrative Agent evidencing the existence of all insurance required to
be maintained by Holdings and the Borrower hereunder setting forth the
respective coverages, limits of liability, carrier, policy number and period of
coverage. Neither Holdings nor the Borrower will, nor will either of them permit
any of their respective Subsidiaries to, obtain or carry separate insurance
concurrent in form or contributing in the event of loss with that required by
this Section 7.1.4 unless the Administrative Agent is the named insured
thereunder, for the benefit of the Secured Parties, with loss payable as
provided herein. Each of Holdings and the Borrower will promptly (but in any
event within three Business Days) notify the Administrative Agent whenever any
such separate insurance is obtained and shall deliver to the Administrative
Agent the certificates evidencing the same.
Without limiting the obligations of Holdings and its Subsidiaries under the
foregoing provisions of this Section 7.1.4, in the event Holdings, the Borrower
or any of their respective Subsidiaries, as the case may be, shall fail to
maintain in full force and effect insurance as required by the foregoing
provisions of this Section 7.1.4, or if Holdings, the Borrower or any of their
respective Subsidiaries, as the case may be, shall fail to endorse and deposit
all policies or certificates with respect thereto, then the Administrative Agent
may (upon notice to Holdings, the Borrower or the respective Subsidiary, as the
case may be), but shall have no obligation so to do, procure insurance covering
the interests of the Lenders and the Administrative Agent in such amounts and
against such risks as the Administrative Agent (or the Required Lenders) shall
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deem reasonably appropriate, and Holdings, the Borrower or the respective
Subsidiary, as the case may be, shall reimburse the Administrative Agent in
respect of any premiums, costs and expenses paid by the Administrative Agent in
procuring such insurance to the extent such premiums, costs and expenses do not
exceed the premiums, costs and expenses necessary to obtain the insurance
required above pursuant to this Section 7.1.4.
SECTION 7.1.5. Bank Meeting; Books and Records. (a) The Required Lenders,
the Administrative Agent or the Syndication Agent may request, at their election
upon reasonable notice to Holdings and the Borrower, a bank meeting to be held
by Holdings and the Borrower at a location reasonably determined by the Required
Lenders, Administrative Agent or Syndication Agent, as the case may be; provided
that Holdings and the Borrower shall not be required to hold more than one bank
meeting in any Fiscal Year; provided further, that, if a Default has occurred
and is continuing and a bank meeting pursuant to this Section 7.1.5(a) has
theretofore been held in the Fiscal Year in which such Default has occurred, the
Required Lenders, the Administrative Agent or the Syndication Agent may request,
at their election at reasonable times and intervals upon reasonable notice to
Holdings and the Borrower, a bank meeting by conference telephone.
(b) Each of Holdings and the Borrower will, and will cause each of their
respective Subsidiaries to, keep books and records in accordance with GAAP which
accurately reflect in all material respects its business affairs and
transactions and permit the Administrative Agent, the Syndication Agent, or any
Lender or Issuer whose visit is coordinated with either the Administrative Agent
or the Syndication Agent, or any of their respective designated representatives,
at reasonable times and intervals upon reasonable notice to the chief financial
officer or an Authorized Officer of Holdings or the Borrower, as the case may
be, to visit each of such Person's offices, to discuss such Person's financial
matters with its officers and employees, and its independent public accountants
(and each of Holdings and the Borrower hereby authorizes such independent public
accountant to so discuss each of such Person's financial matters whether or not
any representative of such Person is present) and to examine (and photocopy
extracts from) any of such Person's books and records; provided that so long as
no Default has occurred and is continuing, no Lender or Issuer shall request
more than two visits pursuant to this clause (b) per Fiscal Year; provided,
further, that if the bank meeting pursuant to clause (a) of this Section 7.1.5
is held in any Fiscal Year, such bank meeting shall constitute one visit by such
Lenders or Issuer in such Fiscal Year (whether or not such Lender or Issuer is
present at such bank meeting). Holdings or the Borrower, as the case may be,
shall pay any fees of its independent public accountant incurred in connection
with any consultation pursuant to this Section 7.1.5.
SECTION 7.1.6. Environmental Law Covenant. Each of Holdings and the
Borrower will, and will cause each of their respective Subsidiaries to,
(a) (i) use and operate all of its and their facilities and properties
in material compliance with all Environmental Laws, (ii) keep all
materials, permits, approvals, certificates, licenses and other
authorizations required under applicable Environmental Laws in effect and
remain in compliance therewith, and (iii) handle, treat, store, dispose of
and transfer all Hazardous Materials in compliance with all applicable
Environmental
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Laws, except to the extent that the failure of any of the foregoing could
not reasonably be expected to have a Material Adverse Effect; and
(b) promptly notify the Agents and provide copies upon receipt of all
written claims, complaints, notices or inquiries relating (i) to the
condition of its facilities and properties in respect of, or (ii) to
compliance with or under, Environmental Laws, which claims, complaints,
notices or inquiries could (individually or in the aggregate) reasonably be
expected to have a Material Adverse Effect, and shall promptly resolve any
material non-compliance with or under, Environmental Laws and keep its
property and facilities free of any Lien imposed under any Environmental
Law.
SECTION 7.1.7. Use of Proceeds. The Borrower shall use the Credit
Extensions solely for the following purposes:
(a) In the case of the Term Loans, to finance the Refinancing (and/or,
at the request of the Borrower, the defeasance of the Existing Notes), pay
fees and expenses attributable to this Agreement and the Refinancing
(including prepayment premiums) and, if applicable, such defeasance and, to
the extent that the Merger Closing Date occurs on the Closing Date, to pay
the Merger Consideration. Unless the Merger Closing Date occurs on the
Tender Offer Closing Date, all proceeds of the Term Loans that remain after
completing the Tender Offer and the Refinancing and the payment of all fees
as described above shall be placed in the Term Loan Escrow with the
Administrative Agent pursuant to an escrow agreement substantially in the
form of Exhibit L (the "Term Loan Escrow Agreement"), such escrowed funds
to be released on the terms and conditions set forth in the Escrow
Agreement for use as part of the Merger Consideration or to repay, in part,
outstanding Bridge Loans.
(b) In the case of Revolving Loans and Swing Line Loans, for
post-closing working capital and general corporate purposes of Holdings and
its Subsidiaries.
(c) In the case of Letters of Credit, for purposes of supporting
working capital and general corporate purposes of the Borrower and its
Subsidiaries.
SECTION 7.1.8. Mortgages. At the request of the Agents or the Required
Lenders (in their sole discretion), at any time after the Closing Date,
Holdings, the Borrower and/or each Subsidiary Guarantor shall cause the
Administrative Agent and the Secured Parties to have, at all times, a first
priority perfected security interest (subject only to Liens permitted hereunder)
in all of the fee owned and leased real property of Holdings, the Borrower or
the Subsidiary Guarantors, so long as the book value or fair market value of
each such property made subject to a Mortgage hereunder exceeds $2,000,000, by
executing and delivering Mortgages that may be necessary in the reasonable
opinion of the Administrative Agent to create a valid, first priority perfected
Lien (subject only to Liens permitted hereunder) against such real property.
Should the Agents or Required Lenders elect to exercise the option
described in the immediately preceding paragraph, in connection with the
execution and delivery of such Mortgages, Holdings and the Borrower shall, and
shall cause each such Subsidiary Guarantor to:
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(a) provide evidence of the completion or satisfactory arrangements,
for the completion of all recordings and filings of each such Mortgage as
may be necessary or, in the reasonable opinion of the Administrative Agent,
desirable to create a valid, first priority perfected Lien (subject only to
Liens permitted hereunder) against the properties purported to be covered
thereby;
(b) obtain mortgagee's title insurance policies in favor of the
Administrative Agent for the benefit of the Secured Parties in amounts and
in form and substance and issued by insurers, reasonably satisfactory to
the Administrative Agent, with respect to the property purported to be
covered by each Mortgage, insuring the mortgagor's title to such property
and that the interests created by each Mortgage constitute valid first
Liens thereon free and clear of all material defects and encumbrances other
than as permitted hereunder or as otherwise approved by the Administrative
Agent, and such policies shall also include a survey reading, and, if
required by the Administrative Agent and if available, revolving credit
endorsement, comprehensive endorsement, variable rate endorsement, access
and utilities endorsements, mechanic's lien endorsement and such other
endorsements as the Administrative Agent shall reasonably request and shall
be accompanied by evidence of the payment in full of all premiums thereon;
and
(c) provide such other approvals, opinions, or documents as the
Administrative Agent may reasonably request with respect to such real
property, including, consents and estoppel agreements from landlords, and a
reasonably current survey of each property purported to be covered by a
Mortgage in form and substance reasonably satisfactory to the
Administrative Agent and the title insurer; provided that Holdings and its
Subsidiaries shall not be required to use more than commercially reasonable
efforts to obtain any such documentation from third parties;
provided that, with respect to any real property containing a manufacturing
facility and leased by the Borrower or any of its Subsidiaries on the
Closing Date, the Borrower will, or will cause the applicable Subsidiary
to, deliver a Mortgage on such property no later than 30 Business Das after
the Closing Date.
SECTION 7.1.9. Future Subsidiaries. Without limiting the effect of any
provision contained herein, within five Business Days after any Person becomes
either a direct or indirect Subsidiary of the Borrower,
(a) such Person (other than a Foreign Subsidiary), if not theretofore
a party to the Subsidiary Security and Pledge Agreement and the Subsidiary
Guaranty, shall execute and deliver to the Administrative Agent a
supplement to each of the Subsidiary Security and Pledge Agreement and the
Subsidiary Guaranty for the benefit of the Secured Parties;
(b) the Borrower or, if not the Borrower, the Subsidiary of the
Borrower that will own shares of the Capital Stock of such Person (which
Subsidiary, if not theretofore a party to the Subsidiary Security and
Pledge Agreement, shall, unless such Subsidiary is a Foreign Subsidiary,
execute and deliver to the Administrative Agent a supplement to the
Subsidiary Security and Pledge Agreement for the purpose of becoming a
pledgor
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thereunder) shall, pursuant to the applicable Security and Pledge
Agreement, deliver to the Administrative Agent
(i) certificates evidencing all of the issued and outstanding
Capital Stock pledged pursuant to the applicable Security and Pledge
Agreement, which certificates in each case shall be accompanied by
undated instruments of transfer duly executed in blank, or, if any
such shares of Capital Stock pledged pursuant to such Security and
Pledge Agreement are uncertificated securities, the Administrative
Agent shall have obtained "control" (as defined in the UCC) over such
shares of Capital Stock and such other instruments and documents as
may be necessary under applicable law, in the reasonable opinion of
the Administrative Agent, to perfect the first priority security
interest of the Administrative Agent in such shares of Capital Stock;
provided that no more than 65% of the shares of Capital Stock held by
the Borrower or a Subsidiary of the Borrower of a Foreign Subsidiary
will be required to be pledged; provided, further, that, in the event
of any change in, or the introduction, adoption, effectiveness,
interpretation, reinterpretation or phase-in of, any law or
regulation, directive or guideline of any Governmental Authority that
could eliminate the increase in income tax attributable to Holdings
and its Subsidiaries as a result of the pledge of more than 65% of
such shares of Capital Stock (including with respect to the operation
of Section 956 (or any successor provision thereto) of the Code), the
Administrative Agent or the Required Lenders may require the pledge of
more than 65% of such shares of Capital Stock;
(ii) all Intercompany Notes, if any, pledged pursuant to the
applicable Security and Pledge Agreement;
(iii) executed copies of Filing Statements naming such Obligor as
a debtor and the Administrative Agent as the secured party, or other
similar instruments or documents to be filed under the Uniform
Commercial Code of all jurisdictions as may be necessary, in the
reasonable opinion of the Administrative Agent, to perfect the
security interests of the Administrative Agent pursuant to the
applicable Security and Pledge Agreement;
(iv) executed copies of proper UCC termination statements (Form
UCC-3), if any, necessary to release all Liens and other rights of any
Person in any collateral described in the applicable Security and
Pledge Agreement previously granted by any Person, except to the
extent such Liens are otherwise permitted hereunder; and
(v) to the extent requested by the Administrative Agent,
certified copies of UCC Requests for Information or Copies (Form
UCC-11) or a similar search report listing all effective financing
statements which name such Person (under its present name and any
previous names under which
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it has conducted business during the five-year period prior to the
Closing Date) as the debtor and which are filed in the jurisdictions
in which filings are to be made pursuant to clause (iii) above,
together with copies of such financing statements (none of which shall
cover any collateral described in any Loan Document, except to the
extent such Liens are otherwise permitted hereunder or are being
released pursuant to clause (iv) above),
together, in each case, with such opinions of legal counsel as the Agents may
reasonably request, which legal opinions shall be in form and substance
reasonably satisfactory to such Agents.
The Agents shall be satisfied that the Lien granted to the Administrative
Agent, for the benefit of the Secured Parties in the collateral described above
is a first priority (or local equivalent thereof) security interest, subject
only to Liens permitted hereunder and no Lien exists on any of the collateral
described above other than the Lien created in favor of the Administrative
Agent, for the benefit of the Secured Parties, pursuant to a Loan Document, and
the other Liens permitted hereunder.
SECTION 7.1.10. Additional Collateral. Without limiting the provisions of
Sections 7.1.8 and 7.1.9, Holdings and the Borrower shall, and shall cause each
of their respective Subsidiaries (other than Foreign Subsidiaries) to, cause the
Lenders to have at all times a first priority perfected security interest
(subject only to Permitted Liens) in all of the property (real and personal)
owned from time to time by each such Person to the extent the same constitutes
or would constitute collateral under the applicable Security and Pledge
Agreement.
SECTION 7.1.11. Consummation of Merger. Holdings shall use reasonable best
efforts to cause the Merger to be consummated as soon as possible after the
Tender Offer Closing Date and, in any event, within five Business Days after the
Tender Offer Closing Date if at least 90% of the Shares are tendered pursuant to
the Tender Offer.
SECTION 7.1.12. Maintenance of Corporate Separateness. Holdings and the
Borrower will, and will cause each of their respective Subsidiaries to, satisfy
customary corporate formalities.
SECTION 7.1.13. Holdings Stockholders Agreement. To the extent that
Holdings receives any cash contributions from its stockholders under the
Holdings Stockholders Agreement, Holdings shall use its best efforts to make a
capital contribution to the Borrower of the proceeds of such payments received
by Holdings.
SECTION 7.2. Negative Covenants. Each of Holdings and the Borrower
covenants and agrees with each Lender hereto that, until the Termination Date
has occurred, Holdings and the Borrower will perform, or cause to be performed,
the obligations set forth below.
SECTION 7.2.1. Business Activities. Neither Holdings nor the Borrower will,
nor will either of them permit any of their respective Subsidiaries to, engage
in any business except those businesses in which Holdings and its Subsidiaries
are engaged on the Closing Date, businesses which are reasonable extensions
thereof and businesses reasonably incidental or complimentary thereto or
expansions thereof.
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SECTION 7.2.2. Indebtedness. Neither Holdings nor the Borrower will, nor
will either of them permit any of their respective Subsidiaries to, create,
incur, assume or permit to exist any Indebtedness, other than:
(a) Indebtedness in respect of the Obligations;
(b) until the Closing Date, Indebtedness that is to be repaid in full
as (and to the extent) further identified in Item 7.2.2(b) of the
Disclosure Schedule;
(c) Indebtedness existing as of the Closing Date which is identified
in Item 7.2.2(c) of the Disclosure Schedule, and refinancing of such
Indebtedness by the Borrower or, if other than the Borrower, the original
obligor thereof;
(d) Indebtedness of Mergerco (at all times prior to the Merger) or the
Borrower (after giving effect to the Merger) constituting Unsecured
Transaction Debt in an aggregate principal amount not to exceed
$215,000,000 (plus any interest thereon that is paid-in-kind), at any time
prior to the Merger, or $165,000,000 (plus any interest thereon that is
paid-in-kind), at any time on or after the effectiveness of the Merger, and
unsecured Contingent Liabilities of Holdings and the Subsidiary Guarantors
under the Other Debt Documents governing such Unsecured Transaction Debt;
(e) unsecured Indebtedness of the Borrower or any of its Subsidiaries
in respect of performance, surety or appeal bonds or completion guarantees
provided in the ordinary course of business, but excluding (in each case),
Indebtedness incurred through the borrowing of money or Contingent
Liabilities in respect thereof;
(f) Indebtedness of the Borrower and its Subsidiaries (i) in respect
of industrial revenue bonds or other similar governmental or municipal
bonds, (ii) evidencing the deferred purchase price of newly acquired
property or incurred to finance the acquisition of property of the Borrower
and its Subsidiaries (pursuant to purchase money mortgages or otherwise,
whether owed to the seller or a third party) used in the ordinary course of
business of the Borrower and its Subsidiaries (provided that such
Indebtedness is incurred within 90 days of the acquisition of such
property) and (iii) Capitalized Lease Liabilities; provided that the
aggregate amount of all Indebtedness outstanding pursuant to this clause
shall not at any time exceed $5,000,000;
(g) Indebtedness of any Subsidiary Guarantor owing to the Borrower or
any other Subsidiary Guarantor, which Indebtedness, if evidenced by one or
more Intercompany Notes and payable to the Borrower or a Subsidiary
Guarantor that is a Domestic Subsidiary, shall be duly executed and
delivered in pledge to the Administrative Agent pursuant to a Security and
Pledge Agreement;
(h) Indebtedness of Foreign Subsidiaries owing to the Borrower or a
Subsidiary Guarantor which, when aggregated with the amount of Investments
made by the Borrower and the Subsidiary Guarantors in Foreign Subsidiaries
under clause (f) of Section 7.2.5, does not exceed $2,500,000 at any time
outstanding, and if evidenced by one or more Intercompany Notes, shall be
duly executed and delivered in pledge to the Administrative Agent pursuant
to a Security and Pledge Agreement and shall not be
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forgiven or otherwise discharged for any consideration other than payment
in full or in part in cash (provided that only the amount repaid in part
shall be discharged);
(i) Indebtedness of Foreign Subsidiaries that are wholly-owned
Subsidiaries owing to other Foreign Subsidiaries;
(j) Indebtedness of Foreign Subsidiaries incurred for working capital
purposes in an aggregate amount at any time outstanding not to exceed
$3,000,000; provided that such Indebtedness is not guaranteed by or in any
way secured by the assets of, Holdings or any of its Domestic Subsidiaries;
(k) unsecured Indebtedness of the Borrower owing to (i) a Subsidiary
Guarantor or (ii) a Subsidiary that has previously executed and delivered
to the Agents the Interco Subordination Agreement (or a supplement
thereto);
(l) unsecured Indebtedness of Holdings or the Borrower in respect of
Permitted Seller Notes, so long as the aggregate principal amount of
Permitted Seller Notes issued, when aggregated with the aggregate amount of
Indebtedness assumed or acquired pursuant to clause (m) of this Section
7.2.2, does not exceed $10,000,000 (as such amount may be increased through
interest that is capitalized or paid-in-kind);
(m) Indebtedness of a Person existing at the time such Person became a
Subsidiary of the Borrower (such Person, an "Acquired Person"), together
with all Indebtedness assumed by the Borrower, Holdings or any of their
respective Subsidiaries in connection with any Permitted Acquisition,
including any Permitted Acquisition of assets (all such Indebtedness being
referred to in this clause (l) as "Assumed Indebtedness"), which does not
exceed $10,000,000 in the aggregate for all Permitted Acquisitions made
since the Closing Date, but only to the extent that such Indebtedness was
not created or incurred in contemplation of such Person becoming a
Subsidiary or such Permitted Acquisition;
(n) Indebtedness of the Borrower and its Subsidiaries in respect of
Hedging Obligations incurred with respect to Indebtedness of the Borrower
and its Subsidiaries otherwise permitted to be incurred hereunder to the
extent (i) the notional principal amount with respect to the relevant
Hedging Obligation does not exceed the principal amount of the Indebtedness
to which such Hedging Obligation relates and (ii) such Hedging Obligations
are not for speculative purposes;
(o) Indebtedness of Holdings incurred in connection with repurchases
of its Capital Stock from employees, officers, directors or consultants of
Holdings or its Subsidiaries upon the departure of such Person or upon such
Person's death or disability; provided that (i) the aggregate amount of
such repurchases funded with Indebtedness does not exceed $7,500,000 in the
aggregate outstanding at any time and (ii) such Indebtedness is
subordinated to the Obligations on terms no less favorable to the Secured
Parties than those set forth on Exhibit J hereto;
(p) Indebtedness of Holdings in respect of intercompany notes
permitted by clause (o) of Section 7.2.5;
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(q) guaranties by Holdings, the Borrower and the Subsidiary Guarantors
of Indebtedness and lease obligations of Holdings and its Domestic
Subsidiaries to the extent that such Indebtedness or lease obligations
created in respect of any such guaranty would otherwise be permitted to be
incurred as a direct obligation by Holdings, the Borrower or such
Subsidiary Guaranty, as the case may be, under this Section 7.2.2 or
otherwise under this Agreement;
(r) Indebtedness of the Borrower or any of its Subsidiaries arising
from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary course of
business so long as such Indebtedness is extinguished within three Business
Days of the incurrence thereof;
(s) Indebtedness of the Borrower or any of its Subsidiaries arising
from agreements of the Borrower or any of its Subsidiaries providing for
indemnification, adjustment of purchase price or similar obligations in
respect of any Permitted Acquisition or the disposition of any business,
assets or a Subsidiary of the Borrower that is permitted under this
Agreement; provided that the maximum liability in respect of such
Indebtedness shall at no time exceed the purchase price for such Permitted
Acquisition or the gross cash proceeds actually received by the Borrower
and its Subsidiaries in connection with such disposition, as the case may
be;
(t) Indebtedness under the New Notes; provided that, in the event any
Bridge Loans are outstanding at the time such New Notes are issued and the
proceeds therefrom are made available to the Borrower, concurrently with
the issuance of the New Notes and the proceeds therefrom being made
available to the Borrower, all Indebtedness in respect of such Bridge Loans
or otherwise under the Bridge Loan Agreement shall be repaid or prepaid
(after deducting customary underwriter, initial purchaser or placement
agent discounts and commissions relating to such issuance) on a
dollar-for-dollar basis with the proceeds of such issuance;
(u) Qualifying Subordinated Debt;
(v) Indebtedness in respect of the Equity Bridge Loans; and
(w) other (i) unsecured Indebtedness of the Borrower and its
Subsidiaries (other than Indebtedness of Foreign Subsidiaries owing to the
Borrower or any Subsidiary Guarantor) and (ii) secured Indebtedness of
Foreign Subsidiaries in an aggregate amount at any time outstanding not to
exceed $5,000,000.
provided that no Indebtedness otherwise permitted by clauses (f), (h) (m), (u)
or (w) shall be assumed or otherwise incurred if a Default has occurred and is
then continuing or would result therefrom.
SECTION 7.2.3. Liens. Neither Holdings nor the Borrower will, nor will
either of them permit any of their respective Subsidiaries to, create, incur,
assume or permit to exist any Lien upon any of its property (including Capital
Stock of any Person), revenues or assets, whether now owned or hereafter
acquired, except:
(a) Liens securing payment of the Obligations;
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(b) until the Closing Date, Liens securing payment of Indebtedness of
the type described in clause (b) of Section 7.2.2;
(c) Liens existing as of the Closing Date and disclosed and described
in Item 7.2.3(c) of the Disclosure Schedule securing Indebtedness described
in clause (c) of Section 7.2.2, and refinancings of such Indebtedness;
provided that no such Lien shall encumber any additional property and the
amount of Indebtedness secured by such Lien is not increased from that
existing on the Closing Date (as such Indebtedness may have been
permanently reduced subsequent to the Closing Date);
(d) Liens securing Indebtedness of the type permitted under clause (f)
of Section 7.2.2; provided that (i) such Lien is granted within 90 days
after such Indebtedness is incurred or any refinancing thereof permitted
under such clause and (ii) such Lien secures only the assets that are the
subject of the Indebtedness referred to in such clause;
(e) Liens securing Indebtedness permitted by clause (m) of Section
7.2.2; provided that such Liens existed prior to such Person becoming a
Subsidiary or such Permitted Acquisition occurring, were not created in
anticipation thereof and do not attach to any other asset of the Borrower
or any of its Subsidiaries theretofore or thereafter existing;
(f) Liens in favor of carriers, warehousemen, mechanics, materialmen
and landlords granted in the ordinary course of business for amounts which
are not overdue and are being contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall
have been set aside on its books;
(g) Liens incurred or deposits made in the ordinary course of business
in connection with worker's compensation, unemployment insurance or other
forms of governmental insurance or benefits (other than Liens in favor of
the PBGC), or to secure performance of tenders, statutory obligations,
bids, leases or other similar obligations (other than for borrowed money)
entered into in the ordinary course of business;
(h) Liens arising from judgments, decrees or attachments under
circumstances which do not otherwise result in an Event of Default under
Section 8.1.6;
(i) easements, land use covenants, rights-of-way, zoning restrictions,
minor defects or irregularities in title and other similar encumbrances not
interfering in any material respect with the marketability or use of the
property to which such Lien is attached;
(j) Liens for Taxes, assessments or other governmental charges or
levies not at the time delinquent or thereafter payable without penalty or
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside
on its books;
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(k) Liens securing Indebtedness of the type permitted by clauses (h),
(i) and (w) of Section 7.2.2 and covering only assets of the Foreign
Subsidiary obligated under such Indebtedness;
(l) Liens arising from precautionary UCC-1 financing statement filings
regarding operating leases entered into by the Borrower or any Subsidiary
of the Borrower in the ordinary course of business;
(m) licenses, leases or subleases granted to Affiliated Persons in the
ordinary course of business not interfering in any material respect with
the business of the Borrower or any of its Subsidiaries;
(n) restrictions imposed in the ordinary course of business on the
sale or distribution of designated inventory that arise from the sale of
such inventory to one or more customers;
(o) Liens in favor of customs or revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(p) Liens securing the Margin Stock;
(q) Liens in connection with the Term Loan Escrow Agreement, the New
Notes Escrow Agreement (as defined in the indenture governing the New
Notes) and the Bridge Escrow Agreement (as defined in the Bridge Loan
Agreement); and
(r) other Liens on property of the Borrower or any of its
Subsidiaries; provided that the fair market value of the property
encumbered by Liens described in this clause (r), and the Indebtedness and
other obligations secured thereby, does not exceed $1,000,000.
SECTION 7.2.4. Financial Condition and Operations. Holdings and the
Borrower will not permit any of the events set forth below to occur.
(a) Holdings and the Borrower will not permit the Leverage Ratio as of
the last day of each Fiscal Quarter below to be greater than the ratio set
forth opposite such Fiscal Quarter below:
Leverage
Fiscal Quarter Ratio
-------------- -------
The third Fiscal Quarter of the 2002
Fiscal Year 5.00:1
The fourth Fiscal Quarter of the 2002
Fiscal Year and the first and second
Fiscal Quarters of the 2003 Fiscal Year 4.75:1
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The third Fiscal Quarter of
the 2003 Fiscal Year 4.50:1
The fourth Fiscal Quarter of the 2003
Fiscal Year and the first Fiscal
Quarter of the 2004 Fiscal Year 4.25:1
The second and third Fiscal Quarters
of the 2004 Fiscal Year 4.00:1
The fourth Fiscal Quarter of the 2004
Fiscal Year and the first Fiscal Quarter
of the 2005 Fiscal Year 3.75:1
The second Fiscal Quarter of the 2005
Fiscal Year and each Fiscal Quarter thereafter 3.50:1
(b) Holdings and the Borrower will not permit the Interest Coverage
Ratio as of the last day of each Fiscal Quarter below to be less than the
ratio set forth opposite such Fiscal Quarter below:
Interest
Fiscal Quarter Coverage Ratio
-------------- ----------------
The third and fourth Fiscal Quarters of
the 2002 Fiscal Year 2.20:1
The first, second, third and fourth
Fiscal Quarters of the 2003 Fiscal Year 2.30:1
The first, second, third and fourth
Fiscal Quarters of the 2004 Fiscal Year 2.50:1
The first Fiscal Quarter of the 2005
Fiscal Year and each Fiscal Quarter
thereafter 2.75:1
(c) Holdings and the Borrower will not permit the Fixed Charge
Coverage Ratio as of the last day of each Fiscal Quarter below be less than
the ratio set forth opposite such Fiscal Quarter set forth below:
Fixed Charge
Fiscal Quarter Coverage Ratio
-------------- ----------------
The third Fiscal Quarter of the
2002 Fiscal Year 1.00:1
The fourth Fiscal Quarter of the
2002 Fiscal Year 1.10:1
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Fixed Charge
Fiscal Quarter Coverage Ratio
-------------- ----------------
The first, second, third and
fourth Fiscal Quarters of the
2003 Fiscal Year 1.20:1
The first, second, third and
fourth Fiscal Quarters of the
2004 Fiscal Year 1.25:1
The first Fiscal Quarter of the
2005 Fiscal Year and each
Fiscal Quarter thereafter 1.30:1
SECTION 7.2.5. Investments. Holdings and the Borrower will not, and will
not permit any of their respective Subsidiaries to, purchase, make, incur,
assume or permit to exist any Investment in any other Person, except:
(a) Investments existing on the Closing Date and identified in Item
7.2.5(a) of the Disclosure Schedule;
(b) cash and Cash Equivalent Investments;
(c) Investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(d) Capital Expenditures to the extent permitted pursuant to Section
7.2.7;
(e) Investments by way of contributions to capital or purchases of
Capital Stock (i) by the Borrower in any Subsidiary Guarantor or by any
Subsidiary Guarantor in other Subsidiary Guarantors or (ii) by Holdings or
any Subsidiary in the Borrower;
(f) Investments by the Borrower or a Subsidiary Guarantor in Foreign
Subsidiaries (other than Investments described in clause (h) of Section
7.2.2 (which are hereby permitted pursuant to this clause (f))) to the
extent the aggregate amount of such Investments does not exceed $1,000,000
(net of any repayments thereof);
(g) Investments by a Foreign Subsidiary in any other Foreign
Subsidiary that is a wholly-owned Subsidiary;
(h) Investments (without duplication) that are permitted as
Indebtedness pursuant to Section 7.2.2;
(i) Investments made by the Borrower and its Subsidiaries that
constitute (i) accounts receivable arising, (ii) trade debt granted, or
(iii) deposits made in connection with the purchase price of goods or
services, in each case in the ordinary course of business;
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(j) Investments in respect of Permitted Acquisitions;
(k) Investments consisting of any deferred portion of the sales price
received by the Borrower or any Subsidiary in connection with any
Disposition permitted under Section 7.2.11;
(l) Investments by the Borrower and its Subsidiaries in respect of (i)
payroll, moving, travel and similar advances made in the ordinary course of
business to cover matters that are expected at the time of such advance
ultimately to be treated as expenses (in accordance with GAAP), and (ii)
loans and advances to their respective employees, officers, directors and
consultants in the ordinary course of business in an aggregate amount
(determined without regard to any write-downs or write-offs of such loans
and advances) not to exceed $2,000,000;
(m) Investments in respect of loans or extensions of credit made by
Holdings or the Borrower ("Management Loans") to employees, officers,
directors or consultants ("Management Investors") of Holdings or any of its
Subsidiaries in connection with their purchase of newly issued Capital
Stock of Holdings ("Management Shares"), so long as the proceeds of such
loans (if any) are used concurrently dollar-for-dollar for the purchase of
such Management Shares and then contributed concurrently by Holdings as a
capital contribution to the Borrower;
(n) Restricted Payments permitted pursuant to Section 7.2.6;
(o) Investments by the Borrower in the form of intercompany loans to
Holdings the proceeds of which are used to make payments permitted pursuant
to Section 7.2.6;
(p) Investments pursuant to Hedging Obligations permitted hereunder;
(q) Investments in respect of the ownership of the Capital Stock of
Subsidiaries created or acquired in accordance with the terms of this
Agreement;
(r) advances to subcontractors in the ordinary course of business;
(s) non-cash consideration issued to the Borrower or any of its
Subsidiaries by the purchaser of assets in connection with a sale of such
assets to the extent permitted by Section 7.2.11; and
(t) other Investments by the Borrower and its Subsidiaries in an
amount not to exceed $5,000,000 over the term of this Agreement plus other
Investments to the extent financed with new equity proceeds (issued
pursuant to documentation no more favorable to the holders thereof than the
documentation relating to the Equity Investment) received by Holdings (and
contributed to the Borrower) or Capital Stock of Holdings;
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provided that
(i) any Investment which when made complies with the requirements of
clause (a), (b) or (c) of the definition of the term "Cash Equivalent
Investment" may continue to be held notwithstanding that such Investment if
made thereafter would not comply with such requirements; and
(ii) no Investment otherwise permitted by clauses (f), (j) or (t)
shall be permitted to be made if any Default has occurred and is continuing
or would result therefrom.
SECTION 7.2.6. Restricted Payments, etc. Holdings and the Borrower will
not, and will not permit any of their respective Subsidiaries to, declare or
make a Restricted Payment, or make any deposit for any Restricted Payment,
except:
(a) the Borrower may make Restricted Payments to Holdings for the
purpose of paying, so long as all proceeds are promptly used by Holdings to
pay, (i) reasonable fees for audit, legal and similar administrative
services and other corporate overhead, (ii) customary fees to non-officer
directors of Holdings who are not Affiliates of Holdings, (iii)
out-of-pocket expenses to directors or observers of the board of directors
of Holdings and (iv) taxes payable by Holdings;
(b) so long as at the time of such purchase (and after giving effect
thereto) there shall exist no Default, Holdings may (and the Borrower may
make Restricted Payments to Holdings to permit Holdings to) repurchase
Management Shares from any Management Investor (i) with proceeds of the
key-man life insurance maintained on the life of such Management Investor
and (ii) with cash in an aggregate amount not exceeding $2,500,000 per year
up to a maximum aggregate amount equal to $10,000,000 over the term of this
Agreement; provided that to the extent the amount of cash used to make such
repurchases in any Fiscal Year is less than $2,500,000, 100% of such unused
amount may be carried forward to succeeding Fiscal Years and utilized to
make such repurchases in such succeeding Fiscal Years;
(c) (i) any Subsidiary of the Borrower may make Restricted Payments to
the Borrower or any Subsidiary Guarantor and (ii) any non-wholly-owned
Subsidiary of the Borrower may make Restricted Payments to its shareholders
generally so long as the Borrower or its Subsidiary which owns the equity
interest in the Subsidiary making such Restricted Payment receives at least
its proportionate share thereof (based upon its relative holding of the
equity interests in the Subsidiary making such Restricted Payment);
(d) so long as no Default then exists or would result therefrom, the
Borrower may make Restricted Payments to Holdings at the times, and in the
amounts, necessary to enable Holdings to make any regularly scheduled
interest or principal payments that are due and payable on any Permitted
Seller Notes or in respect of any Qualifying Subordinated Debt to the
extent that such payments are permitted to be made pursuant to Section
7.2.8;
(e) repurchases of Capital Stock of Holdings deemed to occur upon the
exercise of stock options if such Capital Stock represents a portion of the
exercise price thereof and so long as no cash is paid or distributed by
Holdings or any of its Subsidiaries in connection therewith; and
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(f) the Tender Offer and the Merger shall be permitted.
SECTION 7.2.7. Capital Expenditures, etc.
(a) Subject (in the case of Capitalized Lease Liabilities) to clause
(f) of Section 7.2.2, the Borrower will not, and will not permit any of its
Subsidiaries to, make or commit to make Capital Expenditures other than
Capital Expenditures made or committed to be made by the Borrower and its
Subsidiaries in any Fiscal Year which in the aggregate do not exceed
$17,500,000 for such Fiscal Year; provided that to the extent that Capital
Expenditures made by the Borrower and its Subsidiaries during any Fiscal
Year (or portion thereof) are less than the maximum amount permitted to be
made for such Fiscal Year 50% of such unused amount (each such amount, a
"carry-forward amount") may be carried forward to the immediately
succeeding Fiscal Year and utilized to make Capital Expenditures in such
succeeding Fiscal Year (it being understood and agreed that no carry
forward amount may be carried beyond the Fiscal Year immediately succeeding
the Fiscal Year in which it arose); provided, further, that [White & Case
to provide language re: 3% of increased sales from Permitted Acquisitions].
(b) In addition to any Capital Expenditures permitted pursuant to
clause (a) above, the Borrower and its Subsidiaries may make Capital
Expenditures (i) with Casualty Proceeds and Net Disposition Proceeds to the
extent permitted by clauses (d) and (e) of Section 3.1.1, (ii) with Net
Equity Proceeds or other equity proceeds not required to be applied to
repay Loans or Cash Collateralize Letter of Credit Outstandings pursuant to
clause (h) of Section 3.1.1, (iii) with Excess Cash Flow for the
immediately preceding Fiscal Year retained by the Borrower and not required
to be applied to repay Loans or Cash Collateralize Letter of Credit
Outstandings pursuant to clause (f) of Section 3.1.1 and (iv) with respect
to the West Salem, Ohio facility in an aggregate amount not to exceed
$8,000,000 to fully in source the window lineal extrusion production. For
the avoidance of doubt, any portion of any Permitted Acquisition that is
permitted under Section 7.2.5 that is accounted for as Capital Expenditure
shall not constitute a Capital Expenditure for purposes of this Section
7.2.7 (provided that the aggregate limit for Permitted Acquisitions shall
be decreased dollar-for-dollar by the amount expended in respect of such
Permitted Acquisition that is so accounted as a Capital Expenditure).
SECTION 7.2.8. No Prepayment of Subordinated Debt. Holdings and the
Borrower will not, and will not permit any of their respective Subsidiaries to,
(i) make any payment or prepayment of principal of, or premium or interest on,
any New Notes, Permitted Seller Notes and Qualifying Subsidiary Debt (A) other
than the stated, scheduled payment of principal or interest set forth in the
applicable Other Debt Documents, or (B) which would violate the terms of this
Agreement or the applicable Other Debt Documents, (ii) redeem, retire, purchase,
defease or otherwise acquire any Subordinated Debt, or (iii) make any deposit
(including the payment of amounts into a sinking fund or other similar fund) for
any of the foregoing purposes.
SECTION 7.2.9. Capital Stock of Subsidiaries. Holdings and the Borrower
will not, and will not permit any of their respective Subsidiaries to, issue any
Capital Stock (whether for value or otherwise), other than (x) Capital Stock of
Holdings (other than Redeemable Capital Stock not otherwise permitted to be
issued pursuant to Section 7.2.2), (y) Capital Stock of the Borrower
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issued to Holdings and pledged pursuant to the Holdings Pledge Agreement and (z)
in the case of Subsidiaries of the Borrower (i) to the Borrower or another
Subsidiary of the Borrower, (ii) for transfers permitted under this Agreement
and replacements of then outstanding shares of capital stock, (iii) for stock
splits, stock dividends and additional issuances which are permitted under this
Agreement and do not decrease the percentage ownership of the Borrower or any of
its Subsidiaries in any class of the capital stock of such Subsidiaries, (iv)
with respect to Foreign Subsidiaries, to qualify directors or local nationals to
the extent (but only to the extent) required by applicable law, (v) in respect
of Subsidiaries formed after the Closing Date and permitted pursuant to this
Agreement and (vi) issuances of Capital Stock permitted pursuant to Section
7.2.5.
SECTION 7.2.10. Consolidation, Merger, etc. Holdings and the Borrower will
not, and will not permit any of their respective Subsidiaries to, liquidate or
dissolve, consolidate with, or merge into or with, any other Person, or
otherwise enter into or consummate any acquisition of any Person or all or
substantially all of the assets of any Person or any business of such Person,
except
(a) any Subsidiary may liquidate or dissolve voluntarily into, and may
merge with and into, the Borrower (so long as the Borrower is the
continuing or surviving corporation) or any other Subsidiary (provided that
a Subsidiary Guarantor may only liquidate or dissolve into, or merge with
and into, the Borrower or another Subsidiary Guarantor), and the assets or
Capital Stock of any Subsidiary may be purchased or otherwise acquired by
the Borrower or any other Subsidiary (provided that the assets or Capital
Stock of any Subsidiary Guarantor may only be purchased or otherwise
acquired by the Borrower or another Subsidiary Guarantor); provided,
further, that in no event shall any Pledged Subsidiary consolidate with or
merge with and into any Subsidiary other than another Pledged Subsidiary
unless after giving effect thereto, the Administrative Agent shall have a
perfected pledge of, and security interest in and to, at least the same
percentage of the issued and outstanding interests of Capital Stock (on a
fully diluted basis) of the surviving Person as the Administrative Agent
had immediately prior to such merger or consolidation in form and substance
satisfactory to the Administrative Agent, pursuant to such documentation
and opinions as shall be necessary in the reasonable opinion of the
Administrative Agent to create, perfect or maintain the collateral position
of the Secured Parties therein; and
(b) Investments as, and to the extent, permitted by Section 7.2.5.
SECTION 7.2.11. Permitted Dispositions. Holdings and the Borrower will not,
and will not permit any of their respective Subsidiaries to, Dispose of any of
the Borrower's or such Subsidiaries' assets (including accounts receivable,
Capital Stock of Subsidiaries or any proceeds thereof) to any Person, in one
transaction or series of transactions, except for the following:
(a) Dispositions of (i) inventory Disposed of in the ordinary course
of its business, (ii) assets which are obsolete, worn out or otherwise no
longer useful in the business of the Borrower and its Subsidiaries in the
good faith judgment of management or (iii) other assets with a fair market
value of $75,000 or less (up to an aggregate amount not to exceed $500,000
in any year);
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(b) Dispositions permitted by Section 7.2.10;
(c) Dispositions made pursuant to non-exclusive licensing arrangements
entered into by the Borrower or any of its Subsidiaries with respect to any
of its intellectual property in the ordinary course of its business;
(d) (i) Dispositions for not less than the fair market value of the
assets to be Disposed, (ii) the consideration received by the Borrower or
applicable Subsidiary consists of at least 80% cash, (iii) the net book
value of such assets, together with the net book value of all other assets
Disposed of pursuant to this clause (d), does not exceed $2,000,000 in any
Fiscal Year or $10,000,000 over the term of this Agreement and (iv)
immediately prior to and after giving effect to such Disposition no Default
shall have occurred and be continuing;
(e) Dispositions in respect of the sale or exchange of specific items
of equipment, so long as the purpose of each such sale or exchange is to
acquire (and results within 120 days of such sale or exchange in the
acquisition of) replacement items of equipment which are the functional
equivalent of the item of equipment so sold or exchanged;
(f) the AmerCable Disposition;
(g) Dispositions in respect of the sale or discount of receivables in
the ordinary course of business, consistent with past practices, and not as
part of any financing transaction;
(h) Dispositions in respect of leases or subleases granted to other
Persons in the ordinary course of business, consistent with past practices;
(i) Dispositions of Shares so long as such Shares constitute Margin
Stock; and
(j) without duplication, Dispositions in respect of sales or
leasebacks permitted under Section 7.2.15.
SECTION 7.2.12. Modification of Certain Agreements. Holdings and the
Borrower will not, and will not permit any of their respective Subsidiaries to,
consent to any amendment, supplement, waiver or other modification of, or enter
into any forbearance from exercising any rights with respect to the terms or
provisions contained in, (i) the Subordinated Debt Documents, other than any
amendment, supplement, waiver or modification for which no fee is payable to the
holders of the relevant Subordinated Debt and which (x) extends the date or
reduces the amount of any required repayment, prepayment or redemption of the
principal of such Subordinated Debt, (y) reduces the rate or extends the date
for payment of the interest, premium (if any) or fees payable on such
Subordinated Debt or (z) makes the covenants, events of default or remedies in
such Subordinated Debt Documents less restrictive on the obligors thereunder, or
(ii) any of the other Material Transaction Documents or (iii) any Organic
Document of Holdings, the Borrower or any of their respective Subsidiaries,
other than any amendment, supplement,
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waiver or modification which would not impair, or in any manner be adverse to,
the rights, interests or obligations of any Secured Party under any Loan
Document.
SECTION 7.2.13. Transactions with Affiliates. Holdings and the Borrower
will not, and will not permit any of their respective Subsidiaries to, enter
into or cause or permit to exist any arrangement, transaction or contract
(including for the purchase, lease or exchange of property or the rendering of
services) with any of its other Affiliates, unless such arrangement, transaction
or contract is on terms customary for similar arrangements, transactions or
contracts entered into by Persons generally and such terms are no less favorable
to Holdings or such Subsidiary than it could obtain in an arm's-length
transaction with a Person that is not an Affiliate, except:
(a) Restricted Payments may be made to the extent provided in Section
7.2.6;
(b) transactions exclusively between or among the Borrower and one or
more Subsidiary Guarantors that are wholly-owned Subsidiaries of the
Borrower and not Foreign Subsidiaries or exclusively between or among such
Subsidiary Guarantors; and
(c) Holdings and its Subsidiaries may conduct any transaction
otherwise permitted pursuant to clauses (c), (g), (h), (i), (k), (p) and
(q) of Section 7.2.2, clauses (c) and (i) of ▇▇▇▇▇▇▇ ▇.▇.▇, ▇▇▇▇▇▇▇ (▇),
(▇), (▇), (▇), (▇), (▇) and (o) of Section 7.2.5, Section 7.2.6 and clause
(a) of Section 7.2.10.
(d) the Borrower and its Subsidiaries may make payments to Harvest
Partners and its Affiliates pursuant to the Management Agreement as in
effect on the Closing Date;
(e) customary fees to non-officer directors of Holdings and its
Subsidiaries; and
(f) employment, employee benefit, consulting and indemnity
arrangements with officers, directors, employees and consultants of
Holdings and its Subsidiaries in the ordinary course of business.
Prior to entering into any transaction or series related transactions with any
Affiliate of the Borrower or any Affiliate of the Borrower's Subsidiaries
involving or having a value in excess of $1,000,000 the Borrower shall deliver
to the Agents a certificate of an Authorized Officer stating that, in the good
faith determination of the Board of Directors of the Borrower (as evidenced by a
resolution), the transaction is on terms in all material respects no less
favorable to Holdings, the Borrower or any of their respective Subsidiaries, as
the case may be, than could be obtained from an unaffiliated party and (ii)
Holdings, the Borrower or any of their respective Subsidiaries shall not enter
into any transaction with any of their respective Affiliates involving or having
a value of more than $10,000,000 or if there is no member of the Board of
Directors of the Borrower who does not have any direct or indirect financial
interest in or with respect to the transaction being considered, unless
Holdings, the Borrower or such Subsidiary, as the case may be, has received an
opinion from an independent financial advisor to the effect that such
transaction (or series of transactions) is fair to Holdings, the Borrower or
such Subsidiary, as the case may be, from a financial point of view.
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SECTION 7.2.14. Restrictive Agreements, etc. Holdings and the Borrower will
not, and will not permit any of their respective Subsidiaries to, enter into any
agreement prohibiting
(a) the creation or assumption of any Lien upon any properties,
revenues or assets of any Obligor, whether now owned or hereafter acquired,
for the benefit of any Secured Party;
(b) the ability of any Obligor to amend or otherwise modify any Loan
Document; or
(c) the ability of any Subsidiary to make any payments, directly or
indirectly, to the Borrower, including by way of dividends, advances,
repayments of loans, reimbursements of management and other intercompany
charges, expenses and accruals or other returns on investments, or transfer
any of its assets or property to the Borrower.
The foregoing prohibitions shall not apply to restrictions contained (i) in any
Loan Document in the Bridge Loan Agreement or in any Other Debt Document, (ii)
in the case of clauses (a) and (c), in any agreement governing any Indebtedness
permitted by clause (f) of Section 7.2.2 as to the assets financed with the
proceeds of such Indebtedness and (iii) in the case of clause (c), pursuant to
(A) applicable law, (B) customary non-assignment provisions in leases or other
contracts or (C) customary provisions restricting the transfer of property or
assets that are subject to a Permitted Lien or an agreement to transfer such
property or assets.
SECTION 7.2.15. Sale and Leaseback. Holdings and the Borrower will not, and
will not permit any of their respective Subsidiaries to, directly or indirectly
enter into any agreement or arrangement providing for the sale or transfer by it
of any property (now owned or hereafter acquired) to a Person and the subsequent
lease or rental of such property or other similar property from such Person;
provided that the Borrower and its Subsidiaries may enter into any agreement or
arrangement providing for the sale or transfer by it of any property (now owned
or hereafter acquired) to a Person and the subsequent lease or rental of such
property or other similar property from such Person so long as at the time of
determination the present value (discounted at the interest rate implicit in the
lease) of the obligation of the lessee of the property subject to such sale and
leaseback transaction for rental payments during the remaining term of the lease
included in such transaction, including any period for which such lease has been
extended or may, at the option of the lessor, be extended or until the earliest
date on which the lessee may terminate such lease without penalty or upon
payment of penalty (in which case the rental payments shall include such
penalty), after excluding all amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water, utilities and
similar charges, does not exceed at any time $2,500,000.
SECTION 7.2.16. Take or Pay Contracts. Holdings and the Borrower will not,
and will not permit any of their respective Subsidiaries to, enter into or be a
party to any arrangement for the purchase of materials, supplies, other property
or services if such arrangement by its express terms requires that payment be
made by Holdings, the Borrower or such Subsidiary regardless of whether such
materials, supplies, other property or services are delivered or furnished to it
except in the ordinary course of business and consistent with past practices.
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SECTION 7.2.17. Fiscal Year. The Borrower will not change its Fiscal Year.
SECTION 7.2.18. Activities of Holdings. Notwithstanding any provision to
the contrary herein and without limiting the effect of any provision contained
in this Article VII, Holdings will not (a) create, incur, assume or suffer to
exist any Indebtedness (other than (i) Indebtedness in respect of the guaranty
contained in Article IX, Permitted Seller Notes, Bridge Loans, Qualifying
Subordinated Debt and the repurchase of its Capital Stock, and (ii) as provided
in clauses (o), (p), and (q) of Section 7.2.2), (b) create, assume, or suffer to
exist any Lien upon, or grant any options or other rights with respect to, any
of its revenues, property or other assets, whether now owned or hereafter
acquired (other than as provided in clause (a) of Section 7.2.3), (c) wind-up,
liquidate or dissolve itself (or suffer to exist any of the foregoing),
consolidate or amalgamate with or merge into or with any other Person, or
convey, sell, transfer, lease or otherwise dispose of all or any part of its
assets, in one transaction or a series of transactions, to any Person or
Persons, (d) create, incur, assume or suffer to exist any Investment in any
Person (other than its continuing ownership of all the shares of Capital Stock
of the Borrower and Investments otherwise permitted under Section 7.2.5), (e)
declare or make a Restricted Payment, or make any deposit for any Restricted
Payment (other than provided in Section 7.2.6), (f) permit to be taken any
action that would result in a Change in Control or (g) engage in any other
business activity except in compliance with its Obligations under the Loan
Documents and except for any business activity that Holdings is expressly
permitted to conduct pursuant to a specific provision hereunder.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following events or
occurrences described in this Article shall constitute an "Event of Default".
SECTION 8.1.1. Non-Payment of Obligations. The Borrower shall default in
the payment or prepayment when due of
(a) any principal of any Loan, any Reimbursement Obligation or any
deposit of cash for collateral purposes pursuant to Section 2.6.4; or
(b) any interest on any Loan, any fee described in Article III or any
other monetary Obligation, and such default shall continue unremedied for a
period of three Business Days after such amount was due.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of any
Obligor made or deemed to be made in any Loan Document (including any
certificates delivered pursuant to Article V) is or shall be incorrect when made
or deemed to have been made in any material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations.
Holdings or the Borrower shall default in the due performance or observance of
any of its obligations under clause (e) of Section 7.1.1, clause (a)(i) of
Section 7.1.2, Section 7.1.11 or Section 7.2.
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SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. (a)
Holdings or the Borrower shall default in the due performance or observance of
any of its obligations under clause (a), (b) or (c) of Section 7.1.1 and such
default shall continue unremedied for a period of 30 days.
(b) Holdings or the Borrower shall default in the due performance or
observance of any of its obligations under Section 7.1.1 (other than clause (a),
(b), (c) or (e) thereof), 7.1.8, 7.1.9 or 7.1.10 and such default shall continue
unremedied for a period of 30 days; or any Obligor shall default in the due
performance and observance of any agreement contained in any Loan Document
executed by it (other than the agreements described in Section 8.1.1, 8.1.2,
8.1.3 or clause (a) of Section 8.1.4(a)), and such default shall continue
unremedied for a period of 30 days after notice thereof shall have been given to
the Borrower by any Agent or the Required Lenders.
SECTION 8.1.5. Default on Other Indebtedness. A default shall occur in the
payment of any amount when due (subject to any applicable grace period), whether
by acceleration or otherwise, of any principal or stated amount of, or interest
or fees on, any Indebtedness (other than Indebtedness described in Section
8.1.1) of Holdings, the Borrower or any of their respective Subsidiaries having
a principal or stated amount, individually or in the aggregate, in excess of
$5,000,000, or a default shall occur in the performance or observance of any
obligation or condition with respect to such Indebtedness if the effect of such
default is to accelerate the maturity of any such Indebtedness or such default
shall continue unremedied for any applicable period of time sufficient to permit
the holder or holders of such Indebtedness, or any trustee or agent for such
holders, to cause or declare such Indebtedness to become due and payable or to
require such Indebtedness to be prepaid, redeemed, purchased or defeased, or
require an offer to purchase or defease such Indebtedness to be made, prior to
its expressed maturity.
SECTION 8.1.6. Judgments. Any judgment or order for the payment of money,
individually or in the aggregate, in excess of $5,000,000 (exclusive of any
amounts fully covered by insurance (less any applicable deductible) to the
extent the provider of such insurance is not denying its liability with respect
thereto) shall be rendered against Holdings, the Borrower or any of their
respective Subsidiaries and such judgment shall not have been paid, vacated or
discharged or stayed or bonded pending appeal within 30 days after the entry
thereof or enforcement proceedings shall have been commenced by any creditor
upon such judgment or order.
SECTION 8.1.7. Pension Plans. Any of the following events shall occur with
respect to any Pension Plan (i) the institution of any steps by Holdings, the
Borrower, any member of its Controlled Group or any other Person to terminate a
Pension Plan if, as a result of such termination, Holdings, the Borrower or any
such member is required to make a contribution to such Pension Plan, or could
reasonably be expected to incur a liability or obligation to such Pension Plan,
in excess of $5,000,000, or (ii) a contribution failure occurs with respect to
any Pension Plan sufficient to give rise to a Lien under section 302(f) of ERISA
in an amount in excess of $5,000,000.
SECTION 8.1.8. Change in Control. Any Change in Control shall occur.
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SECTION 8.1.9. Bankruptcy, Insolvency, etc. Holdings, the Borrower or any
Material Subsidiary shall
(a) become insolvent or generally fail to pay, or admit in writing its
inability or unwillingness generally to pay, debts as they become due;
(b) apply for, consent to or suffer to exist the appointment of a
trustee, receiver, sequestrator or other custodian for any substantial part
of the property of any thereof, or make a general assignment for the
benefit of creditors;
(c) in the absence of such application, consent, sufferance or
assignment, permit or suffer to exist the appointment of a trustee,
receiver, sequestrator or other custodian for a substantial part of the
property of any thereof, and such trustee, receiver, sequestrator or other
custodian shall not be discharged within 60 days; provided that Holdings
and the Borrower (for themselves and their Material Subsidiaries) hereby
expressly authorize each Secured Party to appear in any court conducting
any relevant proceeding during such 60-day period to preserve, protect and
defend their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law or any dissolution, winding up or liquidation
proceeding, in respect thereof, and, if any such case or proceeding is not
commenced by Holdings, the Borrower or any such Material Subsidiary, such
case or proceeding shall be consented to or acquiesced in by such Person or
shall result in the entry of an order for relief or shall remain for 60
days undismissed; provided that Holdings and the Borrower (for themselves
and their Material Subsidiaries) hereby expressly authorize each Secured
Party to appear in any court conducting any such case or proceeding during
such 60-day period to preserve, protect and defend their rights under the
Loan Documents; or
(e) take any action authorizing, or in furtherance of, any of the
foregoing.
SECTION 8.1.10. Impairment of Security, etc. Any material provision of any
Loan Document or any Lien granted thereunder with respect to any material assets
shall (except in accordance with its terms), in whole or in part, terminate,
cease to be effective or cease to be the legally valid, binding and enforceable
obligation of any Obligor party thereto; any Obligor shall contest in any manner
such effectiveness, validity, binding nature or enforceability; or, except as
permitted under any Loan Document, any Lien securing any Obligation shall, in
whole or in part, cease to be a perfected first priority Lien.
SECTION 8.1.11. Failure of Subordination. Unless otherwise waived or
consented to by the Required Lenders, the Agents and the Issuers in writing, the
subordination provisions relating to any Subordinated Debt (the "Subordination
Provisions") shall fail to be enforceable by the Lenders, the Agents and the
Issuers in material accordance with the terms thereof or the monetary
Obligations shall fail to constitute "Senior Indebtedness" (or a similar term)
referring to the Obligations; or any Obligor or holder of Subordinated Debt
shall disavow or contest in any manner (i) the effectiveness, validity or
enforceability of any of the material Subordination
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Provisions, (ii) that the Subordination Provisions exist for the benefit of the
Lenders, the Agents and the Issuers or (iii) that all payments of principal of
or premium and interest on the Subordinated Debt, or realized from the
liquidation of any property of any Obligor, shall be subject to any of such
Subordination Provisions.
SECTION 8.2. Action if Bankruptcy. If any Event of Default described in
clauses (a) through (d) of Section 8.1.9 shall occur with respect to the
Borrower, the Commitments (if not theretofore terminated) shall automatically
terminate and the outstanding principal amount of all outstanding Loans and all
other Obligations (including Reimbursement Obligations) shall automatically be
and become immediately due and payable by the Borrower, without notice or demand
to any Person, and the Borrower shall automatically and immediately be obligated
to Cash Collateralize all Letter of Credit Outstandings.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
(other than any Event of Default described in clauses (a) through (d) of Section
8.1.9) shall occur for any reason, whether voluntary or involuntary, and be
continuing, the Administrative Agent, upon the written direction of the Required
Lenders, shall by notice to the Borrower declare all or any portion of the
outstanding principal amount of the Loans and other Obligations (including
Reimbursement Obligations) to be due and payable by the Borrower and/or the
relevant Commitments (if not theretofore terminated) to be terminated, whereupon
the full unpaid amount of such Loans and other Obligations which shall be so
declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, and/or, as the case may be, the
relevant Commitments shall terminate and the Borrower shall automatically and
immediately be obligated to Cash Collateralize all Letter of Credit
Outstandings.
ARTICLE IX
HOLDINGS GUARANTY
SECTION 9.1. Guaranty. Holdings hereby absolutely, unconditionally and
irrevocably
(a) guarantees the full and punctual payment when due, whether at
stated maturity, by required prepayment, declaration, acceleration, demand
or otherwise, of all Obligations of the Borrower now or hereafter existing,
whether for principal, interest, fees, expenses or otherwise (including all
such amounts which would become due but for the operation of the automatic
stay under Section 362(a) of the United States Bankruptcy Code, 11 U.S.C.
ss. 362(a), and the operation of Sections 502(b) and 506(b) of the United
States Bankruptcy Code, 11 U.S.C. ss. 502(b) and ss. 506(b)), and
(b) indemnifies and holds harmless each Secured Party and each holder
of a Note for any and all costs and expenses (including reasonable
attorneys' fees and expenses) incurred by such Secured Party or such
holder, as the case may be, in enforcing any rights under the guaranty set
forth in this Article IX.
The guaranty set forth in this Article IX constitutes a guaranty of payment when
due and not of collection, and Holdings specifically agrees that it shall not be
necessary or required that any Secured Party or any holder of any Note exercise
any right, assert any claim or demand or enforce any remedy whatsoever against
the Borrower or any other Obligor (or any other Person)
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before or as a condition to the obligations of Holdings under the guaranty set
forth in this Article IX.
SECTION 9.2. Acceleration of Holdings Guaranty. Holdings agrees that, in
the event of the occurrence of an Event of Default described under Section 8.1.9
with respect to the Borrower, and if such event shall occur at a time when any
of the Obligations of the Borrower and each other Obligor may not then be due
and payable, Holdings agrees that it will pay to the Administrative Agent for
the account of the Secured Parties forthwith the full amount which would be
payable under the guaranty set forth in this Article IX by Holdings if all such
Obligations were then due and payable.
SECTION 9.3. Guaranty Absolute, etc. The guaranty set forth in this Article
IX shall in all respects be a continuing, absolute, unconditional and
irrevocable guaranty of payment, and shall remain in full force and effect until
all Obligations of the Borrower and each other Obligor have been paid in full in
cash, all obligations of Holdings under the guaranty set forth in this Article
IX shall have been paid in full in cash, all Letters of Credit have been
terminated or expired and all Commitments shall have terminated. Holdings
guarantees that the Obligations of the Borrower will be paid strictly in
accordance with the terms of this Agreement and each other Loan Document under
which they arise, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Secured Party or any holder of any Note with respect thereto. The liability of
Holdings under the guaranty set forth in this Article IX shall be absolute,
unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of this
Agreement, any Note or any other Loan Document;
(b) the failure of any Secured Party or any holder of any Note
(i) to assert any claim or demand or to enforce any right or remedy
against the Borrower, any other Obligor or any other Person (including any
other guarantor (including Holdings)) under the provisions of this
Agreement, any Note, any other Loan Document or otherwise, or
(ii) to exercise any right or remedy against any other guarantor
(including Holdings) of, or collateral securing, any Obligations of the
Borrower;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of the Borrower, or any other
extension, compromise or renewal of any Obligation of the Borrower;
(d) any reduction, limitation, impairment or termination of any
Obligations of the Borrower for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to
(and Holdings hereby waives any right to or claim of) any defense or
setoff, counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality, nongenuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting, any
Obligations of the Borrower or otherwise;
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(e) any amendment to, rescission, waiver, or other modification of, or
any consent to departure from, any of the terms of this Agreement, any Note
or any other Loan Document;
(f) any addition, exchange, release, surrender or non-perfection of
any collateral, or any amendment to or waiver or release or addition of, or
consent to departure from, any other guaranty, held by any Secured Party or
any holder of any Note securing any of the Obligations of the Borrower; or
(g) any other circumstance which might otherwise constitute a defense
available to, or a legal or equitable discharge of, the Borrower, any
surety or any guarantor.
SECTION 9.4. Reinstatement, etc. Holdings agrees that the guaranty set
forth in this Article IX shall continue to be effective or be reinstated, as the
case may be, if at any time any payment (in whole or in part) of any of the
Obligations is rescinded or must otherwise be restored by any Secured Party or
any holder of any Note, upon the insolvency, bankruptcy or reorganization of the
Borrower or otherwise, all as though such payment had not been made.
SECTION 9.5. Waiver, etc. Holdings hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of the Obligations
of the Borrower and the guaranty set forth in this Article IX and any
requirement that the Administrative Agent, any other Secured Party or any holder
of any Note protect, secure, perfect or insure any security interest or Lien, or
any property subject thereto, or exhaust any right or take any action against
the Borrower, any other Obligor or any other Person (including any other
guarantor) or entity or any collateral securing the Obligations of the Borrower.
SECTION 9.6. Postponement of Subrogation, etc. Holdings agrees that it will
not exercise any rights which it may acquire by way of rights of subrogation
under the guaranty set forth in this Article IX, by any payment made under the
guaranty set forth in this Article IX or otherwise, until the prior payment in
full in cash of all Obligations of the Borrower and each other Obligor, the
termination or expiration of all Letters of Credit and the termination of all
Commitments. Any amount paid to Holdings on account of any such subrogation
rights prior to the payment in full in cash of all Obligations of the Borrower
and each other Obligor shall be held in trust for the benefit of the Secured
Parties and each holder of a Note and shall immediately be paid to the
Administrative Agent for the benefit of the Secured Parties and each holder of a
Note and credited and applied against the Obligations of the Borrower and each
other Obligor, whether matured or unmatured, in accordance with the terms of
this Agreement. In furtherance of the foregoing, for so long as any Obligations
or Commitments remain outstanding, Holdings shall refrain from taking any action
or commencing any proceeding against the Borrower or any other Obligor (or its
successors or assigns, whether in connection with a bankruptcy proceeding or
otherwise) to recover any amounts in the respect of payments made under the
guaranty set forth in this Article IX to any Secured Party or any holder of a
Note.
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SECTION 9.7. Successors, Transferees and Assigns; Transfers of Notes, etc.
The guaranty set forth in this Article IX shall:
(a) be binding upon Holdings, and its successors, transferees and
assigns; and
(b) inure to the benefit of and be enforceable by the Administrative
Agent and each other Secured Party.
Without limiting the generality of the foregoing clause (b), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Credit Extension
held by it to any other Person or entity, and such other Person or entity shall
thereupon become vested with all rights and benefits in respect thereof granted
to such Lender under any Loan Document (including the guaranty set forth in this
Article IX) or otherwise, subject, however, to any contrary provisions in such
assignment or transfer, and to the provisions of Section 11.11 and Article X.
ARTICLE X
THE AGENTS
SECTION 10.1. Appointments and Authorizations; Actions. (a) Each Lender
hereby appoints Credit Suisse First Boston, Cayman Islands Branch, as its
Syndication Agent and UBS AG, Stamford Branch, as its Administrative Agent under
and for purposes of each Loan Document. Each Lender authorizes the
Administrative Agent and/or the Syndication Agent to act on behalf of such
Lender under each Loan Document and, in the absence of other written
instructions from the Required Lenders received from time to time by the Agents
(with respect to which each such Agent agrees that it will comply, except as
otherwise provided in this Section or as otherwise advised by counsel in order
to avoid contravention of applicable law), to exercise such powers hereunder and
thereunder as are specifically delegated to or required of each such Agent by
the terms hereof and thereof, together with such powers as may be reasonably
incidental thereto. Each Lender hereby indemnifies (which indemnity shall
survive any termination of this Agreement) each Agent, pro rata according to
such Lender's proportionate Total Exposure Amount, from and against any and all
liabilities, obligations, losses, damages, claims, costs or expenses of any kind
or nature whatsoever which may at any time be imposed on, incurred by, or
asserted against, each such Agent in any way relating to or arising out of any
Loan Document, including reasonable attorneys' fees, and as to which each such
Agent is not reimbursed by the Borrower; provided however, that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, claims, costs or expenses which are determined by a court of
competent jurisdiction in a final proceeding to have resulted from such Agent's
gross negligence or willful misconduct. Neither Agent shall be required to take
any action under any Loan Document, or to prosecute or defend any suit in
respect of any Loan Document, unless it is indemnified hereunder to its
satisfaction. If any indemnity in favor of either Agent shall be or become, in
such Agent's determination, inadequate, such Agent may call for additional
indemnification from the Lenders and cease to do the acts indemnified against
hereunder until such additional indemnity is given. Notwithstanding any
provision to the contrary contained elsewhere in any Loan Document, neither
Agent shall have any duties or responsibilities except those expressly set forth
herein, nor shall either such Agent have or be deemed to have any fiduciary
relationship with any Lender, and no implied covenants, functions,
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responsibilities, duties, obligations or liabilities shall be read into any Loan
Document or otherwise exist against either such Agent.
(b) Each Issuer shall act on behalf of the Lenders with respect to the
Letters of Credit issued by it and the documents associated therewith until such
time and except for so long as the Administrative Agent may agree at the request
of the Required Lenders to act for such Issuer with respect thereto; provided
that each Issuer shall have all of the benefits and immunities (i) provided to
the Agents in this Section 10.1 with respect to any acts taken or omissions of
such Issuer in connection with Letters of Credit issued by it or proposed to be
issued by it and the applications and agreements for letters of credit
pertaining to the Letters of Credit as fully as if the term "Agent", as used in
this Section 10.1, included each such Issuer with respect to such acts or
omissions, and (ii) as additionally provided in this Agreement with respect to
each such Issuer.
(c) The Swing Line Lender shall have all of the benefits and immunities (i)
provided to the Agents in this Section 10.1 with respect to any acts taken or
omissions suffered by the Swing Line Lender in connection with Swing Line Loans
made or proposed to be made by it as fully as if the term "Agent", as used in
this Section 10.1, included the Swing Line Lender with respect to such acts or
omissions and (ii) as additionally provided in this Agreement with respect to
the Swing Line Lender.
(d) The Lenders authorize the Administrative Agent to hold, for and on
behalf of the Lenders, security in the assets and properties of Holdings and
each of its Subsidiaries securing the Obligations.
SECTION 10.2. Funding, Reliance, etc. Unless the Administrative Agent shall
have been notified in writing by any Lender by 3:00 p.m. on the Business Day
prior to a Borrowing that such Lender will not make available the amount which
would constitute its Percentage of such Borrowing on the date specified
therefor, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent and, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If and to the
extent that such Lender shall not have made such amount available to the
Administrative Agent, such Lender and the Borrower severally agree to repay the
Administrative Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date the Administrative Agent made such
amount available to the Borrower to the date such amount is repaid to the
Administrative Agent, at the interest rate applicable at the time to Loans
comprising such Borrowing (in the case of the Borrower) and (in the case of a
Lender), at the Federal Funds Rate, for the first two Business Days after which
such amount has not been repaid, and thereafter at the interest rate applicable
to Loans comprising such Borrowing.
SECTION 10.3. Exculpation. Neither Agent nor any of its respective
directors, officers, employees or agents shall be liable to any Lender for any
action taken or omitted to be taken by it under any Loan Document, in connection
herewith or therewith, except for its own willful misconduct or gross
negligence, nor responsible for any recitals, statements, representations or
warranties herein or therein or in any certificate, report, statement or other
document referred to or provided for herein or therein, nor for the
effectiveness, enforceability, validity or due execution of any Loan Document,
nor for the creation, perfection or priority of any Liens
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purported to be created by any of the Loan Documents, or the validity,
genuineness, enforceability, existence, value or sufficiency of any collateral
security, nor to make any inquiry respecting the observance or performance by
any Obligor of its Obligations. Any such inquiry which may be made by either
Agent shall not obligate it to make any further inquiry or to take any action.
Each such Agent shall be entitled to rely upon advice of counsel concerning
legal matters and upon any notice, consent, certificate, statement or writing
which such Agent believes to be genuine and to have been presented by a proper
Person.
SECTION 10.4. Successor. The Syndication Agent may resign as such upon 10
Business Day's notice to the Borrower and the Administrative Agent. It is agreed
that to the extent the Syndication Agent has resigned, all provisions of any
Loan Document requiring the consent of the Syndication Agent or the Agents shall
be deemed to require the consent of the Administrative Agent. The Administrative
Agent may resign as such at any time upon at least 30 days' prior notice to the
Borrower and all Lenders. If the Administrative Agent at any time shall resign,
the Required Lenders may appoint another Lender as a successor Administrative
Agent which shall thereupon become the Administrative Agent hereunder. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the U.S. (or any State thereof) or a
U.S. branch or agency of a commercial banking institution, and having a combined
capital and surplus of at least $250,000,000 to act as Administrative Agent
until such time, if any, as the Required Lenders appoint a successor
Administrative Agent as provided above; provided that if, such retiring
Administrative Agent is unable to find a commercial banking institution which is
willing to accept such appointment and which meets the qualifications set forth
in above, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall assume and perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor as provided for above. The appointment of
any successor Administrative Agent pursuant to the fifth sentence of this
Section 10.4 shall require the consent of the Borrower, which consent shall not
be unreasonably withheld or delayed and which consent shall not be required if a
Default has occurred and is then continuing. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall be entitled to receive from the
retiring Administrative Agent such documents of transfer and assignment as such
successor Administrative Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under the Loan Documents. After
any retiring Administrative Agent's resignation hereunder as the Administrative
Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Administrative Agent
under the Loan Documents, and Sections 11.3 and 11.4 shall continue to inure to
its benefit.
SECTION 10.5. Credit Extensions by each Agent. Each of the Agents, and each
Issuer shall have the same rights and powers with respect to (x)(i) in the case
of an Agent, the Credit Extensions made by it or any of its Affiliates and (ii)
in the case of each Issuer, the Loans made by it or any of its Affiliates, and
(y) the Loans held by it or any of its Affiliates as any other
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Lender and may exercise the same as if it were not an Agent or an Issuer. Each
Agent, each Issuer and each and each of their respective Affiliates may accept
deposits from, lend money to, and generally engage in any kind of business with
the Borrower or any Subsidiary or Affiliate of the Borrower as if such Agent or
such Issuer were not an Agent or an Issuer hereunder. The Lenders acknowledge
that, pursuant to such activities, the Agents or their respective Affiliates may
receive information regarding the Borrower or its Affiliates (including
information that may be subject to confidentiality obligations in favor of the
Borrower or such Affiliate) and acknowledge that the Agents and their respective
Affiliates shall be under no obligation to provide such information to them.
SECTION 10.6. Credit Decisions. Each Lender acknowledges that it has,
independently of each Agent and each other Lender, and based on such Lender's
review of the financial information of the Borrower and its Subsidiaries, the
Loan Documents (the terms and provisions of which being satisfactory to such
Lender) and such other documents, information and investigations as such Lender
has deemed appropriate, made its own credit decision to extend its Commitments.
Each Lender also acknowledges that it will, independently of each Agent and each
other Lender, and based on such other documents, information and investigations
as it shall deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time any rights and
privileges available to it under the Loan Documents.
SECTION 10.7. Copies, etc. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by the Borrower pursuant to the terms of the
Loan Documents (unless concurrently delivered to the Lenders by the Borrower).
The Administrative Agent will distribute to each Lender each document or
instrument received for its account and copies of all other communications
received by the Administrative Agent from the Borrower for distribution to the
Lenders by the Administrative Agent in accordance with the terms of the Loan
Documents.
SECTION 10.8. Reliance by Agents. Each of the Agents shall be entitled to
rely, and shall be fully protected in relying, upon any certification, notice or
other communication (including any thereof by telephone, telecopy, telegram or
cable) believed by it to be genuine and correct and to have been signed, sent or
made by or on behalf of the proper Person, and upon advice and statements of
legal counsel, independent accountants and other experts selected by such Agent.
As to any matters not expressly provided for by the Loan Documents, each of the
Agents shall in all cases be fully protected in acting, or in refraining from
acting, hereunder or thereunder in accordance with instructions given by the
Required Lenders or all of the Lenders as is required in such circumstance or as
such Agent deems appropriate, and such instructions of such Lenders and any
action taken or failure to act pursuant thereto shall be binding on all Secured
Parties; prior to acting, or refraining from acting, in any such circumstance,
either such Agent may request confirmation from the Lenders of their obligation
to indemnify such Agent against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action. For
purposes of applying amounts in accordance with this Section, each Agent shall
be entitled to rely upon any Secured Party that has entered into a Rate
Protection Agreement with any Obligor for a determination (which such Secured
Party agrees to provide or cause to be provided upon request of the
Administrative Agent) of the outstanding Obligations owed to such Secured Party
under any Rate Protection Agreement. Unless it has actual knowledge evidenced by
way of written notice from any such Secured Party and the
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Borrower to the contrary, each of the Agents, in acting in such capacity under
the Loan Documents, shall be entitled to assume that no Rate Protection
Agreements or Obligations in respect thereof are in existence or outstanding
between any Secured Party and any Obligor.
SECTION 10.9. Notice of Defaults. Neither Agent shall be deemed to have
knowledge or notice of the occurrence of a Default or an Event of Default unless
such Agent has received a written notice from a Lender or the Borrower
specifying such Default or Event of Default and stating that such notice is a
"Notice of Default". In the event that either Agent receives such a notice of
the occurrence of a Default or Event of Default, such Agent shall give prompt
notice thereof to the Lenders. Each of the Agents shall (subject to Section
11.1) take such action with respect to such Default or Event of Default as shall
be directed by the Required Lenders (or, if required, all Lenders) and in
accordance with the terms of this Agreement; provided that unless and until
either such Agent shall have received such directions, such Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interest of the Lenders except to the extent that this Agreement expressly
requires that such action be taken, or not be taken, only with the consent or
upon the authorization of the Required Lenders or all Lenders, as applicable.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc. The provisions of each Loan
Document (other than Letters of Credit and the Agents' Fee Letter (which
documents may be amended or otherwise modified in accordance with the terms
thereof)) may from time to time be amended, modified or waived, if such
amendment, modification or waiver is in writing and consented to by the Borrower
and the Required Lenders; provided that no such amendment, modification or
waiver shall:
(a) modify this Section 11.1 without the consent of all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to
be made by a Lender pursuant to a Commitment (it being understood that
waivers or modifications (x) of conditions precedent, covenants, Defaults
or Events of Default or (y) of a mandatory reduction in the Commitment
Amount relating to such Commitment shall not constitute an increase of the
aggregate amount of Credit Extensions that may be required to be made by
such Lender pursuant to such Commitment), extend any final Commitment
Termination Date or reduce any fees described in Article III payable to any
Lender, in each case without the consent of such Lender;
(c) extend the final Stated Maturity Date for any Lender's Loan, or,
except for the waiver of any applicable post default increase in interest
rates or fees, reduce the principal amount of, rate of interest or fees on
any Loan or Reimbursement Obligations (which shall in each case include the
conversion of all or any part of the Obligations into equity of any Obligor
(it being understood that any amendment or modification to the financial
definitions in this Agreement or to Section 1.4 shall not constitute a
reduction in the rate of interest or fees for the purposes of this clause
(c) so long as the principal
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purpose of such amendment or modification was not to reduce the rate of
interest or fees)), or extend the date on which interest or fees are
payable in respect of such Loan or Reimbursement Obligation, in each case,
without the consent of the Lender which has made such Loan or, in the case
of a Reimbursement Obligation, the respective Issuer owed, and those
Lenders participating in, such Reimbursement Obligation (it being
understood and agreed, however, that any vote to rescind any acceleration
made pursuant to Section 8.2 and Section 8.3 of amounts owing with respect
to the Loans and other Obligations shall only require the vote of the
Required Lenders);
(d) reduce the percentage set forth in the definition of "Required
Lenders" or modify any requirement hereunder that any particular action be
taken by all Lenders without the consent of all Lenders;
(e) except as otherwise expressly provided in a Loan Document, release
(i) the Borrower from its Obligations under the Loan Documents, Holdings
from its Obligations under the Holdings Guaranty, Mergerco from its
Obligations under the Mergerco Guaranty or any Subsidiary Guarantor from
its Obligations under the Subsidiary Guaranty (other than in connection
with a Disposition of all or substantially all of the Capital Stock of such
Subsidiary Guarantor in a transaction permitted by Section 7.2.11) or (ii)
all or substantially all of the collateral under the Loan Documents, in
each case without the consent of all Lenders; provided that the Required
Lenders may at any time consent to the release of any Subsidiary Guarantor
that (A) accounted for no more than 15% of consolidated revenues of
Holdings and its Subsidiaries for the four consecutive Fiscal Quarters of
Holdings ending on December 31, 2001 or if more recent financial
information is (or is required to be) available, the last day of the most
recently completed Fiscal Quarter with respect to which, pursuant to
Section 7.1.1, financial statements have been, or are required to have
been, delivered by Holdings to the Administrative Agent and (B) has assets
which represent no more than 15% of the consolidated assets of Holdings and
its Subsidiaries as of December 31, 2001, or if more recent financial
information is (or is required to be) available, the last day of the last
Fiscal Quarter of the most recently completed Fiscal Quarter with respect
to which, pursuant to Section 7.1.1, financial statements have been, or are
required to have been, delivered by Holdings to the Administrative Agent;
(f) amend, modify or waive clause (b) of Section 3.1.1 in a manner
adverse to the holders of Revolving Loan Commitments unless such amendment,
modification or waiver shall have been consented to by the holders of at
least a majority of the Revolving Loan Commitments;
(g) amend, modify or waive the provisions of clause (a)(i), (c), (d),
(e), (f), (g) or (h) of Section 3.1.1 or clause (b) of Section 3.1.2,
unless such amendment, modification or waiver shall have been consented to
by the holders of at least a majority of the aggregate amount of Loans
outstanding under the Tranche or Tranches adversely affected by such
modification (it being agreed that, in the event consented to by the
Required Lenders, any increase in a Commitment Amount or the inclusion of
another commitment to extend credit under this Agreement shall not be
deemed for purposes of this clause (g) to constitute a modification that
would adversely affect a Tranche);
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(h) change any of the terms of Section 2.3.2 without the consent of
the Swing Line Lender; or
(i) affect adversely the interests, rights or obligations of any Agent
(in its capacity as an Agent) or the Issuer, unless consented to by such
Agent or the Issuer, as the case may be.
No failure or delay on the part of any Agent, the Issuer or any Lender in
exercising any power or right under any Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power or right
preclude any other or further exercise thereof or the exercise of any other
power or right. No notice to or demand on any Obligor in any case shall entitle
it to any notice or demand in similar or other circumstances. No waiver or
approval by any Agent, the Issuer or any Lender under any Loan Document shall,
except as may be otherwise stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval hereunder shall require any
similar or dissimilar waiver or approval thereafter to be granted hereunder.
For purposes of this Section 11.1, the Administrative Agent, in
coordination with the Syndication Agent, shall have primary responsibility,
together with the Borrower, in the negotiation, preparation and documentation
relating to any amendment, modification or waiver under this Agreement, any
other Loan Document or any other agreement or document related hereto or thereto
contemplated pursuant to this Section.
SECTION 11.2. Notices; Time. All notices and other communications provided
under each Loan Document shall be in writing (including by facsimile) and
addressed, delivered or transmitted, if to any Agent, Holdings or the Borrower,
at its address or facsimile number set forth below its signature in this
Agreement, and if to a Lender or an Issuer to the applicable Person at its
address or facsimile number set forth below its signature in this Agreement or
set forth in the Lender Assignment Agreement pursuant to which it became a
Lender hereunder, or at such other address or facsimile number as may be
designated by any such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid or if properly addressed and
sent by pre-paid courier service, shall be deemed given when received; any
notice, if transmitted by facsimile, shall be deemed given when the confirmation
of transmission thereof is received by the transmitter. Unless otherwise
indicated, all references to the time of a day in a Loan Document shall refer to
New York City time.
SECTION 11.3. Payment of Costs and Expenses. The Borrower agrees to pay on
demand all reasonable expenses of each Agent (including the fees and
out-of-pocket expenses of Mayer, Brown, ▇▇▇▇ & Maw, counsel to the Agents, and
of local counsel, if any, who may be retained by or on behalf of the Agents) in
connection with
(a) the negotiation, preparation, execution and delivery and ongoing
administration of each Loan Document, including schedules and exhibits, the
syndication of the Loans and any amendments, waivers, consents, supplements
or other modifications to any Loan Document as may from time to time
hereafter be required, whether or not the transactions contemplated hereby
are consummated;
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(b) the filing or recording of any Loan Document (including the Filing
Statements) and all amendments, supplements, amendment and restatements and
other modifications to any thereof, searches made following the Closing
Date in jurisdictions where Filing Statements (or other documents
evidencing Liens in favor of the Secured Parties) have been recorded and
any and all other documents or instruments of further assurance required to
be filed or recorded by the terms of any Loan Document; and
(c) the preparation and review of the form of any document or
instrument relevant to any Loan Document.
The Borrower further agrees to pay, and to save each Secured Party harmless from
all liability for, any stamp or other taxes which may be payable in connection
with the execution or delivery of each Loan Document, the Credit Extensions or
the issuance of the Loans. The Borrower also agrees to reimburse each Secured
Party upon demand for all reasonable out-of-pocket expenses (including
reasonable attorneys' fees and legal expenses of counsel to each Secured Party)
incurred by such Secured Party in connection with the enforcement of any
Obligations.
SECTION 11.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Secured Party, the Borrower hereby
indemnifies, exonerates and holds each Secured Party and each of their
respective officers, directors, employees and agents (collectively, the
"Indemnified Parties") free and harmless from and against any and all actions,
causes of action, suits, losses, costs, liabilities and damages, and expenses
incurred in connection therewith (irrespective of whether any such Indemnified
Party is a party to the action for which indemnification hereunder is sought),
including reasonable attorneys' fees and disbursements, whether incurred in
connection with actions between or among the parties hereto or the parties
hereto and third parties (collectively, the "Indemnified Liabilities"), incurred
by the Indemnified Parties or any of them as a result of, or arising out of, or
relating to
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Credit Extension,
including all Indemnified Liabilities arising in connection with the
Transaction;
(b) the entering into and performance of any Loan Document by any of
the Indemnified Parties (including any action brought by or on behalf of
the Borrower as the result of any determination by the Required Lenders
pursuant to Article V not to fund any Credit Extension, provided that any
such action is resolved pursuant to a final judgment in a court of
competent jurisdiction in favor of such Indemnified Party);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by any Obligor or any Subsidiary
thereof of all or any portion of the Capital Stock or assets of any Person,
whether or not an Indemnified Party is party thereto;
(d) any investigation, litigation or proceeding under any
Environmental Laws arising from the Release or threatened Release by any
Obligor or any Subsidiary thereof of any Hazardous Material;
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(e) any investigation, claim, litigation, or proceeding related to
personal injury arising from exposure or alleged exposure to Hazardous
Materials handled by the Borrower or any of its Subsidiaries;
(f) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or Releases from, any real
property owned or operated by any Obligor or any Subsidiary thereof of any
Hazardous Material (including any losses, liabilities, damages, injuries,
costs, expenses or claims asserted or arising under any Environmental Law),
regardless of whether caused by, or within the control of, such Obligor or
Subsidiary; or
(g) each Lender's Environmental Liability (the indemnification herein
shall survive repayment of the Obligations and any transfer of the property
of any Obligor or its Subsidiaries by foreclosure or by a deed in lieu of
foreclosure for any Lender's Environmental Liability, regardless of whether
caused by, or within the control of, such Obligor or such Subsidiary);
except for Indemnified Liabilities arising for the account of a particular
Indemnified Party by reason of such Indemnified Party's gross negligence or
willful misconduct as determined by a court of competent jurisdiction in a final
proceeding. Each Obligor and its successors and assigns hereby waive, release
and agree not to make any claim or bring any cost recovery action against any
Indemnified Party under CERCLA or any state equivalent, or any similar law now
existing or hereafter enacted, with respect to any liabilities subject to
indemnification under this Section 11.4. It is expressly understood and agreed
that to the extent that any Indemnified Party is strictly liable under any
Environmental Laws, each Obligor's obligation to such Indemnified Party under
this indemnity shall likewise be without regard to fault on the part of any
Obligor with respect to the violation or condition which results in liability of
an Indemnified Party. If and to the extent that the foregoing undertaking may be
unenforceable for any reason, each Obligor agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
SECTION 11.5. Survival. The obligations of the Borrower under Sections 4.3,
4.4, 4.5, 4.6, 11.3 and 11.4 and the obligations of the Lenders under Section
10.1, shall in each case survive any assignment from one Lender to another (in
the case of Sections 11.3 and 11.4) and the occurrence of the Termination Date.
The representations and warranties made by each Obligor in each Loan Document
shall survive the execution and delivery of such Loan Document.
SECTION 11.6. Severability. Any provision of any Loan Document which is
prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of such Loan
Document or affecting the validity or enforceability of such provision in any
other jurisdiction.
SECTION 11.7. Headings. The various headings of each Loan Document are
inserted for convenience only and shall not affect the meaning or interpretation
of such Loan Document or any provisions thereof.
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SECTION 11.8. Execution in Counterparts, Effectiveness, etc. This Agreement
may be executed by the parties hereto in several counterparts, each of which
shall be an original and all of which shall constitute together but one and the
same agreement. This Agreement shall become effective when counterparts hereof
executed on behalf of the Borrower, each Agent and each Lender (or notice
thereof satisfactory to the Agents), shall have been received by the Agents.
SECTION 11.9. Governing Law; Entire Agreement. EACH LOAN DOCUMENT (OTHER
THAN THE LETTERS OF CREDIT, TO THE EXTENT SPECIFIED BELOW AND EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH IN A LOAN DOCUMENT) WILL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (INCLUDING
FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK). EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO LAWS OR RULES ARE DESIGNATED, THE INTERNATIONAL STANDBY
PRACTICES (ISP98--INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NUMBER 590 (THE
"ISP RULES")) AND, AS TO MATTERS NOT GOVERNED BY THE ISP RULES, THE LAWS OF THE
STATE OF NEW YORK. The Loan Documents constitute the entire understanding among
the parties hereto with respect to the subject matter thereof and supersede any
prior agreements, written or oral, with respect thereto.
SECTION 11.10. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrower without such consent shall be null and void).
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
Indemnified Parties) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
SECTION 11.11. Sale and Transfer of Credit Extensions; Participations in
Credit Extensions Notes. Each Lender may assign, or sell participations in, its
Loans, Letters of Credit and Commitments to one or more other Persons in
accordance with this the terms set forth below.
(a) Any Lender may assign ("Assignor Lender") to one or more Eligible
Assignees ("Assignee Lender") all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitments and the
Loans at the time owing to it); provided however, that (i) except in the case of
an assignment of the entire remaining amount of the Assignor Lender's
Commitments and the Loans at the time owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund with
respect to a Lender, the aggregate amount of the Commitments (which for this
purpose includes Loans outstanding thereunder) or principal outstanding balance
of the Loans of the Assignor Lender subject to each such assignment (determined
as of the date the Lender Assignment Agreement with respect to such assignment
is delivered to the Administrative Agent) shall not be less than $1,000,000,
unless
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each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower, otherwise consent (each such consent
not to be unreasonably withheld or delayed), (ii) each partial assignment shall
be made as an assignment of a proportionate part of all the Assignor Lender's
rights and obligations under this Agreement with respect to the Loans and/or the
Commitments assigned, except that this clause (ii) shall not prohibit any Lender
from assigning all or a portion of its rights and obligations among separate
Tranches on a non-pro rata basis and (iii) the parties to each assignment shall
execute and deliver to the Administrative Agent a Lender Assignment Agreement
(including, if the Assignee Lender is not a Lender, the delivery of
administrative details information to the Administrative Agent), together with a
processing and recordation fee of $3,500, to be paid by the Assignor Lender or
the Assignee Lender. Subject to acceptance and recording thereof by the
Administrative Agent pursuant to clause (b) below and the last sentence of
clause (b) of Section 2.7, from and after the effective date specified in each
Lender Assignment Agreement, the Assignee Lender thereunder shall be a party
hereto and, to the extent of the interest assigned by such Lender Assignment
Agreement, have the rights and obligations of a Lender under this Agreement, and
the Assignor Lender thereunder shall, to the extent of the interest assigned by
such Lender Assignment Agreement, be released from its obligations under this
Agreement (and, in the case of a Lender Assignment Agreement covering all of the
Assignor Lender's rights and obligations under this Agreement, such Lender shall
cease to be a party hereto, but shall continue to be entitled to the benefits of
any provisions of this Agreement which by their terms survive the termination of
this Agreement). Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this clause 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 clause (c) below. If the consent of
the Borrower 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 this Section), the Borrower shall be deemed to have
given its consent five Business Days after the date written notice thereof has
been received by the Borrower from the Administrative Agent unless such consent
is expressly refused by the Borrower prior to such fifth Business Day.
(b) The Administrative Agent shall record each assignment made in
accordance with this Section in the Register pursuant to clause (b) of Section
2.7. The Register shall be available for inspection by the Borrower and (so long
as Credit Suisse First Boston Corporation remains a Lender) Credit Suisse First
Boston Corporation (or any of its affiliates), at any reasonable time and from
time to time upon reasonable prior notice.
(c) Any Lender may, without the consent of, or notice to, the Borrower or
the Agents, sell participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights and/or obligations
under this Agreement (including all or a portion of its Commitments and/or the
Loans owing to it); provided that (x) such Lender's obligations under this
Agreement shall remain unchanged, (y) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (z) the Borrower, the Agents and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument 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
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such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver with respect to the following: (i)
modification of Section 11.1, (ii) any reduction in the interest rate or amount
of fees that such Participant is otherwise entitled to, (iii) a decrease in the
principal amount of, or an extension of the final Stated Maturity Date of, any
Loan in which such Participant has purchased a participating interest, (iv) an
extension of the date on which interest or fees are payable in respect of any
Loan, (v) a reduction in the percentage set forth in the definition of "Required
Lenders", or (vi) a release of all or substantially all of the collateral
security under the Loan Documents or all or substantially all of the Guarantors
from their obligations under the Guaranties, in each case except as otherwise
specifically provided in a Loan Document. Subject to clause (d) below, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 4.3, 4.4, 4.5, 4.6, 7.1.1, 11.3 and 11.4 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to clause
(a). To the extent permitted by law, each Participant also shall be entitled to
the benefits of Section 4.9 as though it were a Lender, provided such
Participant agrees to be subject to Section 4.8 as though it were a Lender.
(d) A Participant shall not be entitled to receive any greater payment
under Sections 4.3, 4.4, 4.5, 4.6, 11.3 and 11.4 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 the Borrower's prior written consent. A Participant that would be a
Non-U.S. Lender if it were a Lender shall not be entitled to the benefits of
clause (a) of Section 4.6 unless the Borrower is notified of the participation
sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with clause (e) of Section 4.6 as though it were a Lender.
(e) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement (i) to secure obligations of
such Lender, to secure obligations to a Federal Reserve Bank and (ii) in
connection with any securitization of any portfolio loans of such Lender, in
each case without the prior written consent of any other Person; provided that
no such pledge or assignment of a security interest shall release a Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(f) Notwithstanding anything to the contrary contained herein, any Lender
(a "Granting Bank") may grant to a special purpose funding vehicle (a "SPC"),
identified as such in writing from time to time by the Granting Bank to the
Administrative Agent and the Borrower, the option to provide to the Borrower all
or any part of any Loan that such Granting Bank would otherwise be obligated to
make to the Borrower pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to make any Loan and (ii) if an
SPC elects not to exercise such option or otherwise fails to provide all or any
part of such Loan, the Granting Bank shall be obligated to make such Loan
pursuant to the terms hereof. The making of a Loan by a SPC hereunder shall
utilize the Commitment of the Granting Bank to the same extent, and as if, such
Loan were made by such Granting Bank. Each party hereto hereby agrees that no
SPC shall be liable for any indemnity or similar payment obligation under this
Agreement (all liability for which shall remain with the Granting Bank). 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
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outstanding commercial paper or other senior indebtedness of any SPC, it will
not institute against, or join any other person in instituting against, such SPC
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this Section,
any SPC may (i) with notice to, but without the prior written consent of, the
Borrower 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
Bank or to any financial institutions (consented to by the Borrower 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.
SECTION 11.12. Other Transactions. Nothing contained herein shall preclude
the Administrative Agent, any Issuer or any other Lender from engaging in any
transaction, in addition to those contemplated by the Loan Documents, with the
Borrower or any of its Affiliates in which the Borrower or such Affiliate is not
restricted hereby from engaging with any other Person.
SECTION 11.13. Independence of Covenants. All covenants contained in this
Agreement and each other Loan Document shall be given independent effect such
that, in the event 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 be
otherwise within the limitations of, another covenant shall not, unless
expressly so provided in such first covenant, avoid the occurrence of a Default
or an Event of Default if such action is taken or such condition exists.
SECTION 11.14. Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, ANY LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL
OR WRITTEN) OR ACTIONS OF THE AGENTS, THE LENDERS, THE ISSUERS, HOLDINGS OR THE
BORROWER IN CONNECTION HEREWITH OR THEREWITH MAY BE BROUGHT AND MAINTAINED IN
▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ IN THE CITY OF NEW YORK OR IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED THAT ANY
SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE AGENTS' OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH OF HOLDINGS AND THE BORROWER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE
ADDRESS FOR NOTICES SPECIFIED IN SECTION 11.2. EACH OF HOLDINGS AND THE BORROWER
HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF
ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM
THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE
EXTENT THAT HOLDINGS OR THE BORROWER,
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AS THE CASE MAY BE, HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION
OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH
RESPECT TO ITSELF OR ITS PROPERTY, EACH OF HOLDINGS AND THE BORROWER HEREBY
IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS.
SECTION 11.15. Waiver of Jury Trial. EACH AGENT, EACH LENDER, EACH ISSUER,
HOLDINGS AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH, EACH LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF SUCH AGENT, SUCH
LENDER, SUCH ISSUER, HOLDINGS OR THE BORROWER IN CONNECTION THEREWITH. EACH OF
HOLDINGS AND THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH
OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR EACH AGENT, EACH LENDER AND EACH ISSUER ENTERING INTO
THE LOAN DOCUMENTS.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
ASSOCIATED MATERIALS INCORPORATED
By:__________________________________
Name:
Title:
Address:
Facsimile No.:
Attention:
ASSOCIATED MATERIALS HOLDINGS, INC.
By:__________________________________
Name:
Title:
Address:
Facsimile No.:
Attention:
CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH, as the
Syndication Agent
By:__________________________________
Name:
Title:
Address: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.:
Attention:
UBS AG, STAMFORD BRANCH,
as the Administrative Agent
and as a Lender
By:__________________________________
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
CIBC WORLD MARKETS CORP.,
as the Documentation Agent
By:__________________________________
Name:
Title:
Address:
Facsimile No.:
Attention:
CIBC INC.,
as a Lender
By:__________________________________
Name:
Title: