EXHIBIT 10.2
[SECOND LIEN CREDIT AGREEMENT]
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$115,000,000
SECOND LIEN CREDIT AGREEMENT
DATED AS OF FEBRUARY 14, 2006
AMONG
PGT INDUSTRIES, INC.,
AS BORROWER,
JLL WINDOW HOLDINGS, INC.
AND
THE OTHER GUARANTORS PARTY HERETO,
AS GUARANTORS,
THE LENDERS PARTY HERETO
AND
UBS SECURITIES LLC,
AS ARRANGER, BOOKMANAGER, CO-DOCUMENTATION AGENT AND SYNDICATION AGENT,
AND
UBS AG, STAMFORD BRANCH,
AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT,
AND
GENERAL ELECTRIC CAPITAL CORPORATION,
AS CO-DOCUMENTATION AGENT
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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TABLE OF CONTENTS
Section Page
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ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms...................................................................... 2
SECTION 1.02 Classification of Loans and Borrowings............................................. 30
SECTION 1.03 Terms Generally.................................................................... 30
SECTION 1.04 Accounting Terms; GAAP............................................................. 30
SECTION 1.05 Resolution of Drafting Ambiguities................................................. 31
ARTICLE II
THE CREDITS
SECTION 2.01 Commitments........................................................................ 31
SECTION 2.02 Loans.............................................................................. 31
SECTION 2.03 Borrowing Procedure................................................................ 32
SECTION 2.04 Evidence of Debt; Repayment of Loans............................................... 32
SECTION 2.05 Fees............................................................................... 33
SECTION 2.06 Interest on Loans.................................................................. 33
SECTION 2.07 Termination of Commitments......................................................... 34
SECTION 2.08 Interest Elections................................................................. 34
SECTION 2.09 Repayment of Borrowings............................................................ 35
SECTION 2.10 Optional and Mandatory Prepayments of Loans........................................ 35
SECTION 2.11 Alternate Rate of Interest......................................................... 37
SECTION 2.12 Increased Costs.................................................................... 38
SECTION 2.13 Breakage Payments.................................................................. 39
SECTION 2.14 Payments Generally; Pro Rata Treatment; Sharing of Setoffs......................... 39
SECTION 2.15 Taxes.............................................................................. 40
SECTION 2.16 Mitigation Obligations; Replacement of Lenders..................................... 42
SECTION 2.17 Intentionally Omitted.............................................................. 43
SECTION 2.18 Intentionally Omitted.............................................................. 43
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Organization; Powers............................................................... 43
SECTION 3.02 Authorization; Enforceability...................................................... 43
SECTION 3.03 No Conflicts....................................................................... 43
SECTION 3.04 Financial Statements; Projections.................................................. 44
SECTION 3.05 Properties......................................................................... 44
SECTION 3.06 Intellectual Property.............................................................. 45
SECTION 3.07 Equity Interests and Subsidiaries.................................................. 46
SECTION 3.08 Litigation; Compliance with Laws................................................... 46
SECTION 3.09 Agreements......................................................................... 47
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Section Page
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SECTION 3.10 Federal Reserve Regulations........................................................ 47
SECTION 3.11 Investment Company Act............................................................. 47
SECTION 3.12 Use of Proceeds.................................................................... 47
SECTION 3.13 Taxes.............................................................................. 47
SECTION 3.14 No Material Misstatements.......................................................... 48
SECTION 3.15 Labor Matters...................................................................... 48
SECTION 3.16 Solvency........................................................................... 48
SECTION 3.17 Employee Benefit Plans............................................................. 48
SECTION 3.18 Environmental Matters.............................................................. 49
SECTION 3.19 Insurance.......................................................................... 50
SECTION 3.20 Security Documents................................................................. 50
SECTION 3.21 [Intentionally Omitted]............................................................ 51
SECTION 3.22 Anti-Terrorism Law................................................................. 51
ARTICLE IV
CONDITIONS TO CREDIT EXTENSIONS
SECTION 4.01 Conditions to Initial Credit Extension............................................. 52
SECTION 4.02 Additional Conditions to Credit Extension.......................................... 57
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01 Financial Statements, Reports, etc................................................. 58
SECTION 5.02 Litigation and Other Notices....................................................... 59
SECTION 5.03 Existence; Businesses and Properties............................................... 60
SECTION 5.04 Insurance.......................................................................... 60
SECTION 5.05 Obligations and Taxes.............................................................. 61
SECTION 5.06 Employee Benefits.................................................................. 62
SECTION 5.07 Maintaining Records; Access to Properties and Inspections; Annual Meetings......... 62
SECTION 5.08 Use of Proceeds.................................................................... 62
SECTION 5.09 Compliance with Environmental Laws; Environmental Reports.......................... 63
SECTION 5.10 Interest Rate Protection........................................................... 63
SECTION 5.11 Additional Collateral; Additional Guarantors....................................... 63
SECTION 5.12 Security Interests; Further Assurances............................................. 65
SECTION 5.13 Information Regarding Collateral................................................... 66
SECTION 5.14 Post-Closing Matters............................................................... 67
SECTION 5.15 Ratings............................................................................ 67
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01 Indebtedness...................................................................... 67
SECTION 6.02 Liens............................................................................. 68
SECTION 6.03 Sale and Leaseback Transactions................................................... 71
SECTION 6.04 Investment, Loan and Advances..................................................... 71
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Section Page
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SECTION 6.05 Mergers and Consolidations........................................................ 72
SECTION 6.06 Asset Sales....................................................................... 72
SECTION 6.07 Acquisitions...................................................................... 73
SECTION 6.08 Dividends......................................................................... 74
SECTION 6.09 Transactions with Affiliates...................................................... 74
SECTION 6.10 Financial Covenants............................................................... 75
SECTION 6.11 Prepayments of Other Indebtedness; Modifications of Organizational
Documents and Other Documents, etc............................................... 77
SECTION 6.12 Limitation on Certain Restrictions on Subsidiaries................................ 78
SECTION 6.13 Limitation on Issuance of Capital Stock........................................... 78
SECTION 6.14 Limitation on Creation of Subsidiaries............................................ 78
SECTION 6.15 Business.......................................................................... 79
SECTION 6.16 Limitation on Accounting Changes.................................................. 79
SECTION 6.17 Fiscal Year....................................................................... 79
SECTION 6.18 Embargoed Person.................................................................. 79
SECTION 6.19 No Further Negative Pledge........................................................ 79
SECTION 6.20 Anti-Terrorism Law; Anti-Money Laundering......................................... 80
ARTICLE VII
GUARANTEE
SECTION 7.01 The Guarantee...................................................................... 80
SECTION 7.02 Obligations Unconditional.......................................................... 80
SECTION 7.03 Reinstatement...................................................................... 82
SECTION 7.04 Subrogation; Subordination......................................................... 82
SECTION 7.05 Remedies........................................................................... 82
SECTION 7.06 Instrument for the Payment of Money................................................ 82
SECTION 7.07 Continuing Guarantee............................................................... 82
SECTION 7.08 General Limitation on Guarantee Obligations........................................ 82
SECTION 7.09 Release of Guarantors.............................................................. 82
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01 Events of Default................................................................. 83
ARTICLE IX
APPLICATION OF COLLATERAL PROCEEDS
SECTION 9.01 [Intentionally Omitted]............................................................ 85
SECTION 9.02 [Intentionally Omitted]............................................................ 85
SECTION 9.03 Application of Proceeds............................................................ 85
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Section Page
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ARTICLE X
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
SECTION 10.01 Appointment...................................................................... 86
SECTION 10.02 Agent in Its Individual Capacity................................................. 87
SECTION 10.03 Exculpatory Provisions........................................................... 87
SECTION 10.04 Reliance by Agent................................................................ 87
SECTION 10.05 Delegation of Duties............................................................. 87
SECTION 10.06 Successor Agent.................................................................. 87
SECTION 10.07 Non-Reliance on Agent and Other Lenders.......................................... 88
SECTION 10.08 Name Agents...................................................................... 88
SECTION 10.09 Indemnification.................................................................. 88
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Notices.......................................................................... 89
SECTION 11.02 Waivers; Amendment............................................................... 91
SECTION 11.03 Expenses; Indemnity.............................................................. 93
SECTION 11.04 Successors and Assigns........................................................... 94
SECTION 11.05 Survival of Agreement............................................................ 96
SECTION 11.06 Counterparts; Integration; Effectiveness; Electronic Execution of Assignments.... 97
SECTION 11.07 Severability..................................................................... 97
SECTION 11.08 Right of Setoff.................................................................. 97
SECTION 11.09 Governing Law; Jurisdiction; Consent to Service of Process....................... 97
SECTION 11.10 Waiver of Jury Trial............................................................. 98
SECTION 11.11 Headings......................................................................... 98
SECTION 11.12 Confidentiality.................................................................. 98
SECTION 11.13 Interest Rate Limitation......................................................... 99
SECTION 11.14 Lender Addendum.................................................................. 99
SECTION 11.15 Obligations Absolute............................................................. 99
SECTION 11.16 USA PATRIOT Act Notice........................................................... 100
ARTICLE XII
[INTENTIONALLY OMITTED]
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SECOND LIEN CREDIT AGREEMENT
This SECOND LIEN CREDIT AGREEMENT (this "AGREEMENT") dated as of
February 14, 2006, is entered into among PGT INDUSTRIES, INC., a Florida
corporation ("PGT INDUSTRIES"), JLL Window Holdings, Inc., a Delaware
corporation and the direct parent company of PGT Industries ("WINDOW HOLDINGS"
or "HOLDINGS"), the Subsidiary Guarantors (such term and each other capitalized
term used but not defined herein having the meaning given to it in Article I),
the Lenders, and UBS AG, STAMFORD BRANCH, as administrative agent (in such
capacity, "ADMINISTRATIVE AGENT") for the Lenders and as collateral agent (in
such capacity, "COLLATERAL AGENT") for the Secured Parties.
WITNESSETH:
WHEREAS, Borrower, Window Holdings, PGT Holding Company, a Delaware
corporation and a direct parent of PGT Industries ("PGT HOLDING"), the lenders
identified therein, the Arranger, the swingline lender identified therein, the
Administrative Agent, UBS AG, Stamford Branch, in its capacity as the first lien
collateral agent and in its capacity as the second lien collateral agent, and
the issuing bank identified therein originally entered into that certain Credit
Agreement (the "FIRST CREDIT AGREEMENT") dated as of January 29, 2004, as
amended and restated by the Amended and Restated Credit Agreement, dated as of
February 9, 2004 (the "FIRST AMENDMENT AND RESTATEMENT"), as amended by
Amendment No. 1 thereto dated May 25, 2005 (the "FIRST AMENDMENT") and as
further amended by Amendment No. 2 thereto (the "SECOND AMENDMENT", and together
with the First Credit Agreement, the First Amendment and Restatement and the
First Amendment, the "ORIGINAL FIRST LIEN CREDIT AGREEMENT"), as further amended
and restated by the Second Amendment and Restatement thereto, dated as of the
date hereof (the "SECOND AMENDMENT AND RESTATEMENT").
WHEREAS, PGT Industries, Window Holdings, the Subsidiary Guarantors,
the Lenders party hereto, the Administrative Agent, the Arranger, the
Syndication Agent, the swingline lender identified therein, the First Lien
Collateral Agent, the issuing bank identified therein and the Co-Documentation
Agents are on the date hereof amending and restating the Original First Lien
Credit Agreement, to provide for, among other things, a credit extension from
the Tranche A-2 Term Loan Lenders identified therein of term loans thereunder in
an aggregate principal amount not to exceed $205.0 million, refinancing the
existing revolving loans and commitments thereunder with a new tranche that
provides for $30 million in revolving loans and commitments, the incurrence by
Borrower on the Effective Date of Second Lien Term Loans pursuant to this
Agreement in an aggregate principal amount not to exceed $115.0 million and the
making of a Dividend payment of up to $130.0 million to equity holders and
option holders of Window Holdings payable on the Effective Date or at the option
of Borrower within 30 days thereof (such Dividend payment, the "2006 DIVIDEND").
WHEREAS, Borrower has requested the Lender to extend credit in the
form of second lien Term Loans pursuant to this Agreement on the Effective Date,
in an aggregate principal amount of $115.0 million.
WHEREAS, the proceeds of the Loans are to be used in accordance with
Section 3.12.
WHEREAS, the Lenders are willing to extend such credit to Borrower
upon the terms and subject to the conditions set forth herein. Accordingly, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINED TERMS. As used in this Agreement, the following
terms shall have the meanings specified below:
"2006 DIVIDEND" shall have the meaning assigned to such term in the
recitals hereto.
"ABR," when used in reference to any Loan or Borrowing, is used when
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"ABR BORROWING" shall mean a Borrowing comprised of ABR Loans.
"ABR LOAN" shall mean any Loan bearing interest at a rate determined
by reference to the Alternate Base Rate in accordance with the provisions of
Article II.
"ACQUISITION CONSIDERATION" shall mean the purchase consideration
for any Permitted Acquisition and all other payments by Holdings or any of its
Subsidiaries in exchange for, or as part of, or in connection with, any
Permitted Acquisition, whether paid in cash or by exchange of Equity Interests
or of properties or otherwise and whether payable at or prior to the
consummation of such Permitted Acquisition or deferred for payment at any future
time, whether or not any such future payment is subject to the occurrence of any
contingency, and includes any and all payments representing the purchase price
and any assumptions of Indebtedness, "earn-outs" and other agreements to make
any payment the amount of which is, or the terms of payment of which are, in any
respect subject to or contingent upon the revenues, income, cash flow or profits
(or the like) of any person or business; provided that any such future payment
that is subject to a contingency shall be considered Acquisition Consideration
only to the extent of the reserve, if any, required under GAAP at the time of
such sale to be established in respect thereof by Holdings or any of its
Subsidiaries.
"ADDITIONAL EQUITY PARTNER" shall have the meaning set forth in the
definition of "Qualified Contribution Transaction".
"ADJUSTED LIBOR RATE" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, (a) an interest rate per annum (rounded
upward, if necessary, to the next 1/100th of 1%) determined by the
Administrative Agent at the start of the applicable Interest Period to be equal
to the LIBOR Rate for such Eurodollar Borrowing in effect for such Interest
Period divided by (b) 1 minus the Statutory Reserves (if any) for such
Eurodollar Borrowing for such Interest Period.
"ADMINISTRATIVE AGENT" shall have the meaning assigned to such term
in the preamble hereto and includes each other person appointed as the successor
pursuant to Article X.
"ADMINISTRATIVE AGENT FEES" shall have the meaning assigned to such
term in Section 2.05(a).
"ADMINISTRATIVE QUESTIONNAIRE" shall mean an Administrative
Questionnaire in the form of Exhibit A, or such other form as may be supplied
from time to time by the Administrative Agent.
"AFFILIATE" shall mean, when used with respect to a specified
person, another person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under com-
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mon Control with the person specified; provided, however, that, for purposes of
Section 6.09, the term "Affiliate" shall also include (i) any person that
directly or indirectly owns more than 10% of any class of Equity Interests of
the person specified or (ii) any person that is an executive officer or director
of the person specified.
"AGENTS" shall mean the Arranger, the Co-Documentation Agents, the
Syndication Agent, the Administrative Agent and the Collateral Agent; and
"AGENT" shall mean any of them.
"AGREEMENT" shall have the meaning assigned to such term in the
preamble hereto.
"ALTERNATE BASE RATE" shall mean, for any day, a rate per annum
(rounded upward, if necessary, to the next 1/100th of 1%) equal to the greater
of (a) the Base Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus 0.50%. If the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Federal Funds Effective Rate for any reason,
including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms of the definition thereof,
the Alternate Base Rate shall be determined without regard to clause (b) of the
preceding sentence until the circumstances giving rise to such inability no
longer exist. Any change in the Alternate Base Rate due to a change in the Base
Rate or the Federal Funds Effective Rate shall be effective on the effective
date of such change in the Base Rate or the Federal Funds Effective Rate,
respectively.
"ANTI-TERRORISM LAWS" shall have the meaning assigned to such term
in Section 3.22.
"APPLICABLE MARGIN" shall mean, for any day, with respect to (i) any
ABR Loan, 6.00% and (ii) any Eurodollar Loan, 7.00%.
"ARRANGER" means UBS SECURITIES LLC.
"ASSET SALE" shall mean (a) any conveyance, sale, lease, sublease,
assignment, transfer or other disposition (including by way of merger or
consolidation and including any Sale and Leaseback Transaction) of any property
excluding sales of inventory and dispositions of cash equivalents, in each case,
in the ordinary course of business, by Holdings or any of its Subsidiaries and
(b) any issuance or sale of any Equity Interests of any Subsidiary of Holdings
(other than issuances or sales of Equity Interests of Borrower to Additional
Equity Partners in Qualified Contribution Transactions, to the extent permitted
by Section 6.13), in each case, to any person other than (i) Borrower, (ii) any
Subsidiary Guarantor or Holdings or (iii) other than for purposes of Section
6.06, any other Subsidiary.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, substantially in the form of Exhibit B, or such other form as shall be
approved by the Administrative Agent.
"BAILEE LETTER" shall have the meaning assigned thereto in the
Security Agreement.
"BANKRUPTCY CODE" shall mean Title 11 of the United States Code, as
now constituted or hereafter amended.
"BASE RATE" shall mean, for any day, a rate per annum that is equal
to the corporate base rate of interest established by the Administrative Agent
from time to time; each change in the Base Rate shall be effective on the date
such change is effective. The corporate base rate is not necessarily the lowest
rate charged by the Administrative Agent to its customers.
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"BOARD" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"BOARD OF DIRECTORS" shall mean, with respect to any person, (i) in
the case of any corporation, the board of directors of such person, (ii) in the
case of any limited liability company, the board of managers of such person,
(iii) in the case of any partnership, the Board of Directors of the general
partner of such person and (iv) in any other case, the functional equivalent of
the foregoing.
"BORROWER" means PGT Industries.
"BORROWING" shall mean Loans of the same Type, made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect.
"BORROWING REQUEST" shall mean a request by Borrower in accordance
with the terms of Section 2.03 and substantially in the form of Exhibit C, or
such other form as shall be approved by the Administrative Agent.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or
other day on which banks in New York City are authorized or required by law to
close; provided that when used in connection with a Eurodollar Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"CAPITAL EXPENDITURES" shall mean, for any period, capital
expenditures, as determined in accordance with GAAP, of Window Holdings and its
Subsidiaries, but excluding (i) proceeds of Asset Sales applied towards the
purchase of any property or expenditures made in connection with the
replacement, substitution or restoration of property pursuant to Section 2.10(e)
and (ii) any portion of such increase attributable solely to acquisitions of
property, plant and equipment resulting from Permitted Acquisitions.
"CAPITAL LEASE OBLIGATIONS" of any person shall mean the obligations
of such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CASH EQUIVALENTS" shall mean, as to any person, (a) securities
issued, or directly, unconditionally and fully guaranteed or insured, by the
United States or any agency or instrumentality thereof (provided that the full
faith and credit of the United States is pledged in support thereof) having
maturities of not more than one year from the date of acquisition by such
person; (b) time deposits and certificates of deposit of any Lender or any
commercial bank having, or which is the principal banking subsidiary of a bank
holding company organized under the laws of the United States, any state thereof
or the District of Columbia having, capital and surplus aggregating in excess of
$500.0 million and a rating of "A" (or such other similar equivalent rating) or
higher by at least one nationally recognized statistical rating organization (as
defined in Rule 436 under the Securities Act) with maturities of not more than
one year from the date of acquisition by such person; (c) repurchase obligations
with a term of not more than 30 days for underlying securities of the types
described in clause (a) above entered into with any bank meeting the
qualifications specified in clause (b) above, which repurchase obligations are
secured by a valid perfected security interest in the underlying securities; (d)
commercial paper issued by any person incorporated in the United States rated at
least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent
thereof by ▇▇▇▇▇'▇, and in each case maturing not more than one year after the
date of acquisition by such person; (e) investments in money market funds
substantially all of whose assets are com-
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prised of securities of the types described in clauses (a) through (d) above;
and (f) demand deposit accounts maintained in the ordinary course of business.
"CASH INTEREST EXPENSE" shall mean, for any period, Consolidated
Interest Expense for such period, to the extent paid or payable in cash, net of
net cash payments received under all interest rate Hedging Obligations (taken
together) of such person.
Notwithstanding the foregoing, for the purposes of calculating Cash
Interest Expense:
(i) for the fiscal quarter ended March 31, 2006, Cash Interest
Expense shall be deemed to equal the product of (a) Cash Interest Expense
for the period from the Effective Date through March 31, 2006, as
determined in accordance with the preceding paragraph of this definition
of "Cash Interest Expense," multiplied by (b) a fraction, the numerator of
which is 90 and the denominator of which is the number of days from the
Effective Date through and including March 31, 2006 (the product thereof,
the "DEEMED Q-1 CASH INTEREST EXPENSE");
(ii) for the four fiscal quarters ended June 30, 2006, Cash Interest
Expense shall be deemed to equal the product of (a) the sum of (x) Cash
Interest Expense for the quarter ended June 30, 2006, as determined in
accordance with the preceding paragraph of this definition of "Cash
Interest Expense," plus (y) the Deemed Q-1 Cash Interest Expense,
multiplied by (b) 2;
(iii) for the four fiscal quarters ended September 30, 2006, Cash
Interest Expense shall be deemed to equal the product of (a) the sum of
(x) Cash Interest Expense for the two quarters ended September 30, 2006,
as determined in accordance with the preceding paragraph of this
definition of "Cash Interest Expense," plus (y) the Deemed Q-1 Cash
Interest Expense, multiplied by (b) 4/3; and
(iv) for the four fiscal quarters ended December 31, 2006, Cash
Interest Expense shall be deemed to equal the sum of (x) Cash Interest
Expense for the three quarters ended December 31, 2006, as determined in
accordance with the preceding paragraph of this definition of "Cash
Interest Expense," plus (y) the Deemed Q-1 Cash Interest Expense.
"CASUALTY EVENT" shall mean any loss of title or any loss of or
damage to or destruction of, or any condemnation or other taking (including by
any Governmental Authority) of, any property of Holdings or any of its
Subsidiaries. "Casualty Event" shall include but not be limited to any taking of
all or any part of any Real Property of any person or any part thereof, in or by
condemnation or other eminent domain proceedings pursuant to any law, or by
reason of the temporary requisition of the use or occupancy of all or any part
of any Real Property of any person or any part thereof by any Governmental
Authority, civil or military, or any settlement in lieu thereof.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et
seq.
A "CHANGE IN CONTROL" shall be deemed to have occurred if:
(a) Window Holdings at any time ceases to own 100% of the Equity
Interests of Borrower (other than Equity Interests owned by Additional
Equity Partners acquired in one or more Qualified Contribution
Transactions);
(b) prior to an IPO, (i) the Permitted Holders cease to own, or to
have the power to vote or direct the voting of, directly or indirectly,
Voting Stock of Window Holdings representing
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a majority of the voting power of the total outstanding Voting Stock of
Window Holdings or Borrower or (ii) the Permitted Holders cease to own,
directly or indirectly, Equity Interests representing a majority of the
total economic interests of the Equity Interests of Window Holdings or
Borrower;
(c) following an IPO, any "person" or "group" (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act), other than one or
more Permitted Holders, is or becomes the beneficial owner (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of
this clause such person or group shall be deemed to have "beneficial
ownership" of all securities that such person or group has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of Voting Stock of Window
Holdings or Borrower representing 50% or more of the voting power of the
total outstanding Voting Stock of such Company; or
(d) following an IPO, during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors of Window Holdings (together with any new directors whose
election to such Board of Directors or whose nomination for election was
approved by a vote of a majority of the members of the Board of Directors
of Window Holdings, which members comprising such majority are then still
in office and were either directors at the beginning of such period or
whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority of the Board of Directors of
Window Holdings.
"CHANGE IN LAW" shall mean (a) the adoption of any law, treaty,
order, rule or regulation after the date of this Agreement, (b) any change in
any law, treaty, order, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this
Agreement or (c) compliance by any Lender (or for purposes of Section 2.12(b),
by any lending office of such Lender or by such Lender's holding company, if
any) with any request, guideline or directive (whether or not having the force
of law) of any Governmental Authority made or issued after the date of this
Agreement.
"CHARGES" shall have the meaning assigned to such term in Section
11.13.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"CO-DOCUMENTATION AGENTS" means, collectively, GENERAL ELECTRIC
CAPITAL CORPORATION and UBS SECURITIES LLC.
"COLLATERAL" shall mean, collectively, all of the Security Agreement
Collateral, the Mortgaged Property and all other property of whatever kind and
nature pledged as collateral under any Security Document.
"COLLATERAL AGENT" shall have the meaning assigned to such term in
the preamble hereto, and any successor thereto pursuant to this Agreement.
"COMMITMENT" shall mean, with respect to each Lender, the
commitment, if any, of such Lender to make a Loan hereunder on the Effective
Date in the amount set forth on Schedule I to the Lender Addendum, executed and
delivered by such Lender. The aggregate amount of the Lenders' Commitments is
$115.0 million.
"COMPANIES" shall mean Holdings, Borrower and their respective
Subsidiaries; and "COMPANY" shall mean any one of them.
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"COMPLIANCE CERTIFICATE" shall mean a certificate of a Financial
Officer substantially in the form of Exhibit D.
"CONSOLIDATED AMORTIZATION EXPENSE" shall mean, for any period, the
amortization expense of Window Holdings and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED CURRENT ASSETS" shall mean, as at any date of
determination, the total assets of Window Holdings and its Subsidiaries which
may properly be classified as current assets on a consolidated balance sheet of
Window Holdings and its Subsidiaries in accordance with GAAP, excluding cash and
Cash Equivalents, but including cash or Cash Equivalents that could be deemed
"restricted cash" or cash required to be set aside, segregated or pledged in
support of bidding procedures.
"CONSOLIDATED CURRENT LIABILITIES" shall mean, as at any date of
determination, the total liabilities of Window Holdings and its Subsidiaries
which may properly be classified as current liabilities (other than the current
portion of any Loans) on a consolidated balance sheet of Window Holdings and its
Subsidiaries in accordance with GAAP.
"CONSOLIDATED DEPRECIATION EXPENSE" shall mean, for any period, the
depreciation expense of Window Holdings and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED EBITDA" shall mean, for any period, Consolidated Net
Income for such period, adjusted by (x) adding thereto, in each case only to the
extent (and in the same proportion) deducted in determining such Consolidated
Net Income (and with respect to the portion of Consolidated Net Income
attributable to any Subsidiary of Window Holdings only if a corresponding amount
would be permitted at the date of determination to be distributed to Window
Holdings by such Subsidiary without prior approval (that has not been obtained),
pursuant to the terms of its Organizational Documents and all agreements,
instruments, judgments, decrees, orders, statutes, rules and regulations
applicable to such Subsidiary or its equityholders):
(a) Consolidated Interest Expense for such period,
(b) Consolidated Amortization Expense for such period,
(c) Consolidated Depreciation Expense for such period,
(d) Consolidated Tax Expense for such period,
(e) fees and expenses directly incurred in connection with the
Transactions, in an amount not to exceed $3.0 million,
(f) the aggregate amount of all other non-cash items reducing
Consolidated Net Income (excluding any non-cash charge that results in an
accrual of a reserve for cash charges in any future period) for such
period,
(g) all other reasonable non-recurring cash items reducing the
Consolidated Net Income for such period (for the avoidance of doubt,
including without limitation any portion of the 2006 Dividend reducing
Consolidated Net Income for such period to the extent not otherwise added
back for purposes of Consolidated EBITDA), and
-7-
(h) Management Fees in the amounts and at the times specified in the
Management Services Agreement, as in effect on the Effective Date or as
thereafter amended or replaced in any manner, that, taken as a whole, is
not more adverse to the interests of the Lenders in any material respect
than such agreement as it was in effect on the Effective Date in an amount
not exceed the amount for such period set forth in such Management
Services Agreement, as in effect on the Effective Date, and
(y) subtracting therefrom the aggregate amount of all non-cash items increasing
Consolidated Net Income (other than the accrual of revenue or recording of
receivables in the ordinary course of business) for such period.
Other than for purposes of calculating Excess Cash Flow,
Consolidated EBITDA shall be calculated on a Pro Forma Basis to give effect to
the Transactions, any Permitted Acquisition and Asset Sales (other than any
dispositions in the ordinary course of business) consummated at any time on or
after the first day of the Test Period thereof as if each such Permitted
Acquisition had been effected on the first day of such period and as if each
such Asset Sale had been consummated on the day prior to the first day of such
period.
"CONSOLIDATED FIRST LIEN SECURED INDEBTEDNESS" means at any date of
determination, Consolidated Indebtedness that is not Subordinated Indebtedness
and that is secured by a Lien on any assets of Borrower or any of its
Subsidiaries that ranks equally with the Lien granted under the First Lien
Security Documents to the First Lien Collateral Agent for the benefit of the
First Lien Secured Parties in all respects.
"CONSOLIDATED INDEBTEDNESS" shall mean, at any date of
determination, the aggregate amount, without duplication, of all (i)
Indebtedness, (ii) obligations evidenced by bonds, debentures, notes or similar
instruments issued as "pay-in-kind" interest payments, (iii) the then accreted
amount of obligations evidenced by bonds, debentures, notes or similar
instruments issued at any original issue discount, and (iv) the sum of (a) the
aggregate undrawn amount of all outstanding letters of credit under the First
Lien Credit Agreement plus (b) the aggregate principal amount of all
reimbursement obligations with respect to such letters of credit outstanding at
such time, in each case, of Window Holdings and its Subsidiaries, determined on
a consolidated basis in accordance with GAAP, excluding liabilities incurred in
connection with Hedging Agreements of the type described in Section 6.01(c)
(other than the termination value thereof to the extent such termination value
is then due and payable).
"CONSOLIDATED INTEREST COVERAGE RATIO" shall mean, for any Test
Period, the ratio of (x) Consolidated EBITDA for such Test Period to (y) Cash
Interest Expense for such Test Period.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period, the
total consolidated interest expense of Window Holdings and its Subsidiaries (net
of interest income) for such period determined on a consolidated basis in
accordance with GAAP plus, without duplication:
(a) without duplication, imputed interest on Capital Lease
Obligations and the interest component of all lease obligations with
respect to Sale and Leaseback Transactions of Window Holdings and its
Subsidiaries for such period (other than to the extent such leases are
properly treated as operating leases in accordance with GAAP);
(b) commissions, discounts and other fees and charges owed by Window
Holdings or any of its Subsidiaries with respect to letters of credit
securing financial obligations, bankers' acceptance financing and
receivables financings for such period;
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(c) amortization of debt issuance costs, debt discount or premium
and other financing fees and expenses incurred by Window Holdings or any
of its Subsidiaries for such period;
(d) cash contributions to any employee stock ownership plan or
similar trust made by Window Holdings or any of its Subsidiaries to the
extent such contributions are used by such plan or trust to pay interest
or fees to any person (other than Window Holdings or a Wholly Owned
Subsidiary) in connection with Indebtedness incurred by such plan or trust
for such period;
(e) all interest paid or payable with respect to discontinued
operations of Window Holdings or any of its Subsidiaries for such period,
(f) the interest portion of any deferred payment obligations of
Window Holdings or any of its Subsidiaries for such period;
(g) all interest on any Indebtedness of Window Holdings or any of
its Subsidiaries of the type described in clause (f) or (j) of the
definition of "Indebtedness" for such period;
provided that (a) to the extent directly related to the Transactions, debt
issuance costs, debt discount or premium and other financing fees and expenses
shall be excluded from the calculation of Consolidated Interest Expense and (b)
Consolidated Interest Expense shall be calculated after giving effect to Hedging
Agreements (including associated costs), but excluding unrealized gains and
losses with respect to Hedging Agreements.
Consolidated Interest Expense shall be calculated on a Pro Forma
Basis to give effect to any Indebtedness incurred, assumed or permanently repaid
or extinguished during the relevant Test Period in connection with any Permitted
Acquisitions and Asset Sales (other than any dispositions in the ordinary course
of business) as if such incurrence, assumption, repayment or extinguishing had
been effected on the first day of such period.
"CONSOLIDATED NET INCOME" shall mean, for any period, the
consolidated net income (or loss) of Window Holdings and its Subsidiaries
determined on a consolidated basis in accordance with GAAP; provided that there
shall be excluded from such net income (to the extent otherwise included
therein), without duplication:
(a) the net income (or loss) of any person (other than a Subsidiary
of Window Holdings) in which any person other than Window Holdings and its
Subsidiaries has an ownership interest, except to the extent that cash in
an amount equal to any such income has actually been received by Window
Holdings or (subject to clause (b) below) any of its Subsidiaries during
such period;
(b) the net income of any Subsidiary of Window Holdings during such
period to the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary of that income is not permitted
by operation of the terms of its Organizational Documents or any
agreement, instrument, judgment, decree, order, statute, rule or
regulation applicable to that Subsidiary during such period, except that
Window Holdings' equity in net loss of any such Subsidiary for such period
shall be included in determining Consolidated Net Income;
(c) any gain (or loss), together with any related provisions for
taxes on any such gain (or the tax effect of any such loss), realized
during such period by Window Holdings or any of its Subsidiaries upon any
Asset Sale (other than any dispositions in the ordinary course of
business) by Window Holdings or any of its Subsidiaries;
-9-
(d) gains and losses due solely to fluctuations in currency values
and the related tax effects determined in accordance with GAAP for such
period;
(e) earnings or losses resulting from any reappraisal, revaluation,
write-up or write-down of assets;
(f) unrealized gains and losses with respect to Hedging Obligations
for such period; and
(g) any extraordinary gain (or extraordinary loss), together with
any related provision for taxes on any such gain (or the tax effect of any
such loss), recorded or recognized by Window Holdings or any of its
Subsidiaries during such period.
"CONSOLIDATED TAX EXPENSE" shall mean, for any period, the tax
expense of Window Holdings and its Subsidiaries, for such period, determined on
a consolidated basis in accordance with GAAP.
"CONTESTED COLLATERAL LIEN CONDITIONS" shall mean, with respect to
any Permitted Lien of the type described in clauses (a), (b), (e) and (f) of
Section 6.02, the following conditions:
(a) Borrower shall cause any proceeding instituted contesting such
Lien to stay the sale or forfeiture of any portion of the Collateral on
account of such Lien;
(b) at the option and at the request of the Administrative Agent, to
the extent such Lien is in an amount in excess of $100,000, the
appropriate Loan Party shall maintain cash reserves in an amount
sufficient to pay and discharge such Lien and the Administrative Agent's
reasonable estimate of all interest and penalties related thereto; and
(c) such Lien shall in all respects be subject and subordinate in
priority to the Lien and security interest created and evidenced by the
Security Documents, except if and to the extent that the law or regulation
creating, permitting or authorizing such Lien provides that such Lien is
or must be superior to the Lien and security interest created and
evidenced by the Security Documents.
"CONTINGENT OBLIGATION" shall mean, as to any person, any
obligation, agreement, understanding or arrangement of such person guaranteeing
or intended to guarantee any Indebtedness, leases, dividends or other
obligations ("PRIMARY OBLIGATIONS") of any other person (the "PRIMARY OBLIGOR")
in any manner, whether directly or indirectly, including any obligation of such
person, whether or not contingent, (a) to purchase any such primary obligation
or any property constituting direct or indirect security therefor; (b) to
advance or supply funds (i) for the purchase or payment of any such primary
obligation or (ii) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary
obligor; (c) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation; (d) with respect
to bankers' acceptances, letters of credit and similar credit arrangements,
until a reimbursement obligation arises (which reimbursement obligation shall
constitute Indebtedness); or (e) otherwise to assure or hold harmless the holder
of such primary obligation against loss in respect thereof; provided that the
term "Contingent Obligation" shall not include endorsements of instruments for
deposit or collection in the ordinary course of business or any product
warranties. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made (or, if less, the maximum
amount of such primary obligation for which such person may be liable,
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whether singly or jointly, pursuant to the terms of the instrument evidencing
such Contingent Obligation) or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such person is
required to perform thereunder) as determined by such person in good faith.
"CONTROL" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "CONTROLLING" and "CONTROLLED" shall have meanings
correlative thereto.
"CONTROL AGREEMENT" shall have the meaning assigned to such term in
the Security Agreement.
"CONTROLLED INVESTMENT AFFILIATE" means, as to any person, any other
person which directly or indirectly is in Control of, is Controlled by, or is
under common Control with, such person and is organized by such person (or any
person Controlling such person) primarily for making equity or debt investments
in Holdings or other portfolio companies.
"CREDIT EXTENSION" shall mean the making of a Loan by a Lender.
"DEBT ISSUANCE" shall mean the incurrence by Holdings or any of its
Subsidiaries of any Indebtedness after the Effective Date (other than as
permitted by Section 6.01).
"DEFAULT" shall mean any event, occurrence or condition which is, or
upon notice, lapse of time or both would constitute, an Event of Default.
"DEFAULT RATE" shall have the meaning assigned to such term in
Section 2.06(c).
"DISCHARGE OF FIRST LIEN OBLIGATIONS" shall have the meaning
assigned to such term in the Intercreditor Agreement.
"DISCHARGE OF THE OUTSTANDING FIRST LIEN LOANS" shall have the
meaning assigned to such term in the Intercreditor Agreement.
"DISQUALIFIED CAPITAL STOCK" shall mean any Equity Interest which,
by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable), or upon the happening of any event, (a) matures
(excluding any maturity as the result of an optional redemption by the issuer
thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof, in whole or in
part, on or prior to the first anniversary of the Second Lien Maturity Date, (b)
is convertible into or exchangeable (unless at the sole option of the issuer
thereof) for (i) debt securities or (ii) any Equity Interests referred to in (a)
above, in each case at any time on or prior to the first anniversary of the
Second Lien Maturity Date, or (c) contains any repurchase obligation (other than
customary change of control or asset sale proceeds repurchase obligations) which
may come into effect prior to payment in full of all Obligations.
"DIVIDEND" with respect to any person shall mean that such person
has declared or paid a dividend or returned any equity capital to the holders of
its Equity Interests or authorized or made any other distribution, payment or
delivery of property (other than Qualified Capital Stock of such person) or cash
to the holders of its Equity Interests as such, or redeemed, retired, purchased
or otherwise acquired, directly or indirectly, for consideration any of its
Equity Interests outstanding (or any options or warrants issued by such person
with respect to its Equity Interests), or set aside any funds for any of the
foregoing purposes, or shall have permitted any of its Subsidiaries to purchase
or otherwise acquire for considera-
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tion any of the Equity Interests of such person outstanding (or any options or
warrants issued by such person with respect to its Equity Interests). Without
limiting the foregoing, "Dividends" with respect to any person shall also
include all payments made or required to be made by such person with respect to
any stock appreciation rights, plans, equity incentive or achievement plans or
any similar plans or setting aside of any funds for the foregoing purposes.
"DOLLARS" or "$" shall mean lawful money of the United States.
"ECF PERCENTAGE" shall mean, with respect to any fiscal year, the
applicable percentage set forth below across from the applicable First Lien
Secured Leverage Ratio as of the last day of such fiscal year:
First Lien Secured Leverage Ratio Applicable Percentage
--------------------------------- ---------------------
> 3.0:1.0........................................ 75%
> 1.5:1.0 and < or = 3.0:1.0..................... 50%
< or = 1.5:1.0................................... 25%
"EFFECTIVE DATE" shall mean the date, not later than February 14,
2006, that the conditions precedent set forth in Section 4.01(B) have been
satisfied.
"EMBARGOED PERSON" shall have the meaning assigned to such term in
Section 6.18.
"ENVIRONMENT" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, natural resources, the workplace or as otherwise defined in
any Environmental Law.
"ENVIRONMENTAL CLAIM" shall mean any claim, notice, demand, order,
action, suit, proceeding or other communication alleging liability for
investigation, remediation, removal, cleanup, response, corrective action,
damages to natural resources, personal injury, property damage, fines, penalties
or other costs resulting from, related to or arising out of (i) the presence,
Release or threatened Release in or into the Environment of Hazardous Material
at any location or (ii) any violation of Environmental Law, and shall include
any claim seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief resulting from, related to or arising out of
the presence, Release or threatened Release of Hazardous Material or alleged
injury or threat of injury to health, safety or the Environment.
"ENVIRONMENTAL LAW" shall mean any and all applicable present and
future treaties, laws, statutes, ordinances, regulations, rules, decrees,
orders, judgments, consent orders, consent decrees or other binding
requirements, and the common law, relating to protection of public health or the
Environment, the Release or threatened Release of Hazardous Material, natural
resources or natural resource damages, or occupational safety or health.
"ENVIRONMENTAL PERMIT" shall mean any permit, license, approval,
consent or other authorization required by or from a Governmental Authority
under Environmental Law.
"EQUIPMENT" shall have the meaning assigned to such term in the
Security Agreement.
"EQUITY INTEREST" shall mean, with respect to any person, any and
all shares, interests, participations or other equivalents, including membership
interests (however designated, whether voting or nonvoting), of equity of such
person, including, if such person is a partnership, partnership interests
-12-
(whether general or limited) and any other interest or participation that
confers on a person the right to receive a share of the profits and losses of,
or distributions of property of, such partnership, whether outstanding on the
date hereof or issued after the Effective Date, but excluding debt securities
convertible or exchangeable into such equity.
"EQUITY INVESTORS" shall mean Sponsor, its Controlled Investment
Affiliates and one or more investors reasonably satisfactory to the
Administrative Agent and the Arranger.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
"ERISA AFFILIATE" shall mean, with respect to any person, any trade
or business (whether or not incorporated) that, together with such person, is
treated as a single employer under Section 414 of the Code.
"ERISA EVENT" shall mean (a) any "reportable event," as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan (other than an event for which the 30-day notice period is waived by
regulation); (b) the existence with respect to any Plan of an "accumulated
funding deficiency" (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (c) the failure to make by its due date a
required installment under Section 412(m) of the Code with respect to any Plan
or the failure to make any required contribution to a Multiemployer Plan; (d)
the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of
an application for a waiver of the minimum funding standard with respect to any
Plan; (e) the incurrence by any Company or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(f) the receipt by any Company or any of its ERISA Affiliates from the PBGC or a
plan administrator of any notice relating to the intention to terminate any Plan
or Plans or to appoint a trustee to administer any Plan, or the occurrence of
any event or condition which could reasonably be expected to constitute grounds
under ERISA for the termination of, or the appointment of a trustee to
administer, any Plan; (g) the incurrence by any Company or any of its ERISA
Affiliates of any liability with respect to the withdrawal from any Plan or
Multiemployer Plan; (h) the receipt by any Company or its ERISA Affiliates of
any notice, concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA; (i) the "substantial
cessation of operations" within the meaning of Section 4062(e) of ERISA with
respect to a Plan; (j) the making of any amendment to any Plan which could
result in the imposition of a lien or the posting of a bond or other security
and (k) the occurrence of a nonexempt prohibited transaction (within the meaning
of Section 4975 of the Code or Section 406 of ERISA) which could reasonably be
expected to result in liability to any Company.
"EURODOLLAR BORROWING" shall mean a Borrowing comprised of
Eurodollar Loans.
"EURODOLLAR LOAN" shall mean any Loan bearing interest at a rate
determined by reference to the Adjusted LIBOR Rate in accordance with the
provisions of Article II.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Article VIII.
"EXCESS AMOUNT" shall have the meaning assigned to such term in
Section 2.10(h)(ii).
"EXCESS CASH FLOW" shall mean, for any Excess Cash Flow Period, the
sum, without duplication, of
(a) Consolidated EBITDA for such period, minus
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(b) increases to Net Working Capital for such period (other than to
the extent attributable to deferred taxes and/or Hedging Agreements), plus
(c) decreases to Net Working Capital for such period (other than to
the extent attributable to deferred taxes and/or Hedging Agreements),
minus
(d) cash interest (including, without limitation, cash payments made
under Hedging Agreements during such period), commitment fees, letter of
credit fees and other fees associated with any Loan Document or any other
Indebtedness paid by Window Holdings and its Subsidiaries during such
period, minus
(e) permanent repayments and prepayments of Indebtedness by Window
Holdings and its Subsidiaries during such period (except to the extent
such repayments or prepayments were made in connection with a
refinancing), minus
(f) fees and expenses directly incurred in connection with the
Transactions to the extent increasing "Consolidated EBITDA" during such
period pursuant to clause (e) of the definition thereof, minus
(g) Capital Expenditures made in cash in accordance with Section
6.10(d) during such period (other than Capital Expenditures funded by
Excluded Issuances), minus
(h) aggregate amount of Investments made in cash during such period
pursuant to Sections 6.04(e), (i) and (j) (other than Investments made
with Excluded Issuances), minus
(i) taxes of Window Holdings and its Subsidiaries that were paid in
cash (less any tax refunds) during such period or will be paid within six
months after the end of such period for which reserves have been
established, minus
(j) if not deducted in determining Consolidated EBITDA, the
Management Fees paid during such period in compliance with Section
6.09(e), plus
(k) to the extent not included in the calculation of Consolidated
EBITDA, cash received under Hedging Agreements, plus
(l) the net effect of all other cash items that were excluded from
the calculation of Consolidated EBITDA and/or Consolidated Net Income, by
operation of the respective definitions thereof,
provided that, to the extent otherwise included therein, the Net Cash Proceeds
of Asset Sales (other than under Section 6.06(b)) and Casualty Events, in each
case, to the extent applied in accordance with the applicable provisions of
Section 2.10 shall be deducted in calculating Excess Cash Flow.
"EXCESS CASH FLOW PERIOD" shall mean (i) the fiscal year of Borrower
ending December 30, 2006 and (ii) each fiscal year of Borrower thereafter.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"EXCLUDED ISSUANCE" shall mean an issuance and sale of Qualified
Capital Stock of Holdings to the Equity Investors, to the extent such Qualified
Capital Stock is used, or the Net Cash Proceeds thereof shall be, within 45 days
of the consummation of such issuance and sale, used, without du-
-14-
plication, to finance Capital Expenditures or one or more Permitted Acquisitions
or Permitted Investments.
"EXCLUDED TAXES" shall mean, with respect to the Administrative
Agent, any Lender or any other recipient of any payment to be made by or on
account of any obligation of Borrower hereunder, (a) income or franchise taxes
imposed on (or measured by) its net income or net profits (however denominated)
by the United States, or by the jurisdiction (or any political subdivision
thereof) under the laws of which such recipient is organized, conducts business
(other than a business deemed to arise by virtue of the transactions
contemplated by this Agreement) or in which its principal office is located or,
in the case of any Lender, in which its applicable lending office is located,
(b) any branch profit taxes imposed by the United States or any similar tax
imposed by any other jurisdiction and (c) in the case of a Foreign Lender (other
than an assignee pursuant to a request by Borrower under Section 2.16), any
withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement (or designates a new
lending office) or is attributable to such Foreign Lender's failure to comply
with Section 2.15(e), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from Borrower with respect
to such withholding tax pursuant to Section 2.15(a) (it being understood and
agreed, for the avoidance of doubt, that any withholding tax imposed on a
Foreign Lender as a result of a Change in Law or regulation or interpretation
thereof occurring after the time such Foreign Lender became a party to this
Agreement shall not be an Excluded Tax).
"EXECUTIVE ORDER" shall have the meaning assigned to such term in
Section 3.22.
"EXECUTIVE ORDERS" shall have the meaning assigned to such term in
Section 6.18.
"EXISTING LIEN" shall have the meaning assigned to such term in
Section 6.02(c).
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System of the United States arranged by federal funds brokers,
as published on the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day that is a Business
Day, the average of the quotations for the day for such transactions received by
the Administrative Agent from three federal funds brokers of recognized standing
selected by it.
"FEE LETTER" shall mean the confidential Fee Letter dated December
18, 2003 among Window Holdings, UBS Loan Finance LLC and UBS Securities LLC.
"FEES" shall mean the Administrative Agent Fees.
"FINANCIAL OFFICER" of any person shall mean the chief financial
officer, principal accounting officer, treasurer or controller of such person.
"FIRREA" shall mean the Federal Institutions Reform, Recovery and
Enforcement Act of 1989, as amended.
"FIRST LIEN CLOSING DATE" shall mean January 29, 2004, the date of
the initial funding under the First Lien Credit Agreement.
"FIRST LIEN COLLATERAL AGENT" shall mean the "Collateral Agent" as
defined in the First Lien Credit Agreement.
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"FIRST LIEN CREDIT AGREEMENT" means (i) that certain Second Amended
and Restated Credit Agreement dated as of the date hereof among the Borrower,
Holdings, the Lenders party thereto, UBS Securities LLC, as joint lead arranger,
as co-documentation agent and as syndication agent, UBS Loan Finance LLC, as
swingline lender, and UBS AG, Stamford Branch, as administrative agent, as
collateral agent for the First Lien Secured Parties and issuing bank, and
General Electric Capital Corporation, as Co-Documentation Agent, as amended,
restated, supplemental or modified from time to time to the extent permitted by
this Agreement and the Intercreditor Agreement and (ii) any other credit
agreement, loan agreement, note agreement, promissory note, indenture or other
agreement or instrument evidencing or governing the terms of any indebtedness or
other financial accommodation that has been incurred to extend, increase or
refinance (subject to the limitations set forth herein and in the Intercreditor
Agreement) in whole or in part the indebtedness and other obligations
outstanding under the (x) credit agreement referred to in clause (i) or (y) any
subsequent First Lien Credit Agreement, unless such agreement or instrument
expressly provide that it is not intended to be and is not a First Lien Credit
Agreement hereunder. Any reference to the First Lien Credit Agreement hereunder
shall be deemed a reference to any First Lien Credit Agreement then in
existence.
"FIRST LIEN LOAN DOCUMENTS" means the First Lien Credit Agreement
and the other Loan Documents as defined in the First Lien Credit Agreement,
including each mortgage and other security documents, guaranties and the notes
issued thereunder.
"FIRST LIEN LOANS" means the senior secured first lien term loan and
revolving credit facilities under the First Lien Credit Agreement.
"FIRST LIEN SECURED LEVERAGE RATIO" means, at any date of
determination, the ratio of Consolidated First Lien Secured Indebtedness on such
date to Consolidated EBITDA for the Test Period then most recently ended.
"FIRST LIEN SECURED PARTIES" means the First Lien Administrative
Agent, the First Lien Collateral Agent, each Person that is a lender under the
First Lien Credit Agreement and each holder of any Related Hedging Obligations
(as defined in the First Lien Credit Agreement and in its capacity as such and
each person holding Overdraft Obligations (as defined in the first lien Credit
Agreement and in its capacity as such).
"FIRST LIEN SECURITY DOCUMENTS" shall have the meaning assigned to
the term "Security Documents" in the First Lien Credit Agreement.
"FOREIGN LENDER" shall mean any Lender that is not, for United
States federal income tax purposes, (i) a citizen or resident of the United
States, (ii) a corporation or entity treated as a corporation created or
organized in or under the laws of the United States, or any political
subdivision thereof, (iii) an estate whose income is subject to U.S. federal
income taxation regardless of its source or (iv) a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust and one or more United States persons have the authority to control
all substantial decisions of such trust.
"FOREIGN SUBSIDIARY" shall mean a Subsidiary that is organized under
the laws of, and conducts substantially all of its business in, a jurisdiction
other than the United States or any state thereof or the District of Columbia.
"GAAP" shall mean generally accepted accounting principles in the
United States applied on a consistent basis.
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"GLASS PLANT PURCHASE" shall mean the one time acquisition by the
Borrower of the plant and related land currently leased pursuant to a lease
dated January 29, 2001 between P.E.H. Investments L.L.C. and PGT Industries for
premises at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, which occurred on March 5,
2004.
"GOVERNMENTAL AUTHORITY" shall mean any federal, state, local or
foreign court, central bank or governmental agency, authority, instrumentality
or regulatory body or any subdivision thereof.
"GOVERNMENTAL REAL PROPERTY DISCLOSURE REQUIREMENTS" shall mean any
Requirement of Law of any Governmental Authority requiring notification of the
buyer, lessee, mortgagee, assignee or other transferee of any Real Property,
facility, establishment or business, or notification, registration or filing to
or with any Governmental Authority, in connection with the sale, lease,
mortgage, assignment or other transfer (including any transfer of control) of
any Real Property, facility, establishment or business, of the actual or
threatened presence or Release in or into the Environment, or the use, disposal
or handling of Hazardous Material on, at, under or near the Real Property,
facility, establishment or business to be sold, leased, mortgaged, assigned or
transferred.
"GUARANTEED OBLIGATIONS" shall have the meaning assigned to such
term in Section 7.01.
"GUARANTEES" shall mean the guarantees issued pursuant to Article
VII by Holdings, the Subsidiary Guarantors and each Additional Equity Partner.
"GUARANTORS" shall mean Holdings, the Subsidiary Guarantors and each
Additional Equity Partner that becomes a party hereto.
"HAZARDOUS MATERIALS" shall mean the following: hazardous
substances; hazardous wastes; polychlorinated biphenyls ("PCBS") or any
substance or compound containing PCBs; asbestos or any asbestos-containing
materials in any form or condition; radon or any other radioactive materials
including any source, special nuclear or by-product material; petroleum, crude
oil or any fraction thereof; and any other pollutant or contaminant or
chemicals, wastes, materials, compounds, constituents or substances, subject to
regulation or which can give rise to liability under any Environmental Laws.
"HEDGING AGREEMENT" shall mean any swap, cap, collar, forward
purchase or similar agreements or arrangements dealing with interest rates,
currency exchange rates or commodity prices, either generally or under specific
contingencies.
"HEDGING OBLIGATIONS" shall mean obligations under or with respect
to Hedging Agreements.
"HOLDINGS" shall have the meaning assigned to such term in the
preamble hereto.
"INDEBTEDNESS" of any person shall mean, without duplication, (a)
all obligations of such person for borrowed money or advances; (b) all
obligations of such person evidenced by bonds, debentures, notes or similar
instruments; (c) all obligations of such person upon which interest charges are
customarily paid or accrued; (d) all obligations of such person under
conditional sale or other title retention agreements relating to property
purchased by such person; (e) all obligations of such person issued or assumed
as the deferred purchase price of property or services (excluding trade accounts
payable and accrued obligations incurred in the ordinary course of business on
normal trade terms and (i) not overdue by more than 90 days or (ii) if so
overdue, are being contested in good faith); (f) all Indebtedness of others
secured by any Lien on property owned or acquired by such person, whether or not
the obligations se-
-17-
cured thereby have been assumed, but limited to the fair market value of such
property; (g) all Capital Lease Obligations, Purchase Money Obligations and
synthetic lease obligations of such person; (h) all Hedging Obligations to the
extent required to be reflected on a balance sheet of such person; (i) all
obligations of such person for the reimbursement of any obligor in respect of
letters of credit, letters of guaranty, bankers' acceptances and similar credit
transactions; and (j) all Contingent Obligations of such person in respect of
Indebtedness or obligations of others of the kinds referred to in clauses (a)
through (i) above. The Indebtedness of any person shall include 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
(other than in the case of general partner liability) to the extent that terms
of such Indebtedness expressly provide that such person is not liable therefor.
"INDEMNIFIED TAXES" shall mean Taxes other than Excluded Taxes.
"INDEMNITEE" shall have the meaning assigned to such term in Section
11.03(b).
"INFORMATION" shall have the meaning assigned to such term in
Section 11.12.
"INSURANCE POLICIES" shall mean the insurance policies and coverages
required to be maintained by each Loan Party which is an owner of Mortgaged
Property with respect to the applicable Mortgaged Property pursuant to Section
5.04 and all renewals and extensions thereof.
"INSURANCE REQUIREMENTS" shall mean, collectively, all provisions of
the Insurance Policies, all requirements of the issuer of any of the Insurance
Policies and all orders, rules, regulations and any other requirements of the
National Board of Fire Underwriters (or any other body exercising similar
functions) binding upon each Loan Party which is an owner of Mortgaged Property
and applicable to the Mortgaged Property or any use or condition thereof.
"INTELLECTUAL PROPERTY" shall have the meaning assigned to such term
in Section 3.06(a).
"INTERCOMPANY LOAN" shall mean the loan by Window Company of the net
proceeds of its initial borrowings under the First Credit Agreement to Window
Holdings.
"INTERCOMPANY NOTE" shall mean a promissory note substantially in
the form of Exhibit O-1.
"INTERCREDITOR AGREEMENT" shall mean that certain Intercreditor
Agreement dated as of the Effective Date among the Collateral Agent and the
First Lien Collateral Agent, and consented to by the Loan Parties, substantially
in the form of Exhibit Q.
"INTEREST ELECTION REQUEST" shall mean a request by Borrower to
convert or continue a Borrowing in accordance with Section 2.08(b),
substantially in the form of Exhibit E.
"INTEREST PAYMENT DATE" shall mean (a) with respect to any ABR Loan,
the last Business Day of each March, June, September and December to occur
during any period in which such Loan is outstanding, (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Loan with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period and (c) the Second Lien Maturity
Date.
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"INTEREST PERIOD" shall mean, with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as Borrower may elect; provided that (a) if any Interest
Period would end on a day other than a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day, and (b) any Interest Period
that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of
such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter shall
be the effective date of the most recent conversion or continuation of such
Borrowing; provided that an Interest Period shall be limited to the extent
required under Section 2.03(e).
"INVESTMENTS" shall have the meaning assigned to such term in
Section 6.04.
"IPO" shall mean the first underwritten public offering by Holdings
of its Equity Interests after the Effective Date pursuant to a registration
statement filed with the Securities and Exchange Commission in accordance with
the Securities Act.
"LANDLORD ACCESS AGREEMENT" shall mean a Landlord Access Agreement,
substantially in the form of Exhibit G, or such other form as may reasonably be
acceptable to the Administrative Agent.
"LEASES" shall mean any and all leases, subleases, tenancies,
options, concession agreements, rental agreements, occupancy agreements,
franchise agreements, access agreements and any other agreements (including all
amendments, extensions, replacements, renewals, modifications and/or guarantees
thereof), whether or not of record and whether now in existence or hereafter
entered into, affecting the use or occupancy of all or any portion of any Real
Property.
"LENDER ADDENDUM" shall mean with respect to any Lender on the
Effective Date, a lender addendum in the form of Exhibit H, to be executed and
delivered by such Lender on the Effective Date as provided in Section 11.14.
"LENDERS" shall mean (a) the financial institutions and investment
funds that have become a party hereto pursuant to a Lender Addendum and (b) any
financial institution or investment fund that has become a party hereto pursuant
to an Assignment and Acceptance, other than, in each case, any such financial
institution that has ceased to be a party hereto pursuant to an Assignment and
Acceptance.
"LIBOR RATE" shall mean, with respect to any Eurodollar Borrowing
for any Interest Period therefor, the rate per annum determined by the
Administrative Agent to be the arithmetic mean (rounded to the nearest 1/100th
of 1%) of the offered rates for deposits in dollars with a term comparable to
such Interest Period that appears on the Telerate British Bankers Assoc.
Interest Settlement Rates Page (as defined below) at approximately 11:00 a.m.,
London, England time, on the second full Business Day preceding the first day of
such Interest Period; provided, however, that (i) if no comparable term for an
Interest Period is available, the LIBOR Rate shall be determined using the
weighted average of the offered rates for the two terms most nearly
corresponding to such Interest Period and (ii) if there shall at any time no
longer exist a Telerate British Bankers Assoc. Interest Settlement Rates Page,
"LIBOR Rate" shall mean, with respect to each day during each Interest Period
pertaining to Eurodollar Borrowings comprising part of the same Borrowing, the
rate per annum equal to the rate at which the Administrative Agent is offered
deposits in dollars at approximately 11:00 a.m., London, England time, two
Business Days prior to the first day of such Interest Period in the London
interbank market for delivery on the first
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day of such Interest Period for the number of days comprised therein and in an
amount comparable to its portion of the amount of such Eurodollar Borrowing to
be outstanding during such Interest Period. "TELERATE BRITISH BANKERS ASSOC.
INTEREST SETTLEMENT RATES PAGE" shall mean the display designated as Page 3750
on the Telerate System Incorporated Service (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).
"LIEN" shall mean, with respect to any property, (a) any mortgage,
deed of trust, lien, pledge, encumbrance, claim, charge, assignment,
hypothecation, security interest or encumbrance of any kind or any filing of any
financing statement under the UCC or any other similar notice of Lien under any
similar notice or recording statute of any Governmental Authority, including any
easement, right-of-way or other encumbrance on title to Real Property, in each
of the foregoing cases whether voluntary or imposed by law, and any agreement to
give any of the foregoing; (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such property; and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"LOAN DOCUMENTS" shall mean this Agreement, the Notes (if any), the
Security Documents, the Intercreditor Agreement, each Hedging Obligation
relating to the Loans entered into with any counterparty that was a Lender or an
Affiliate of a Lender at the time such Hedging Obligation was entered into and,
solely for purposes of paragraph (e) of Article VIII hereof, the Fee Letter.
"LOAN PARTIES" shall mean Holdings, Borrower and the Subsidiary
Guarantors.
"LOANS" shall mean the term loans made by the Lenders to Borrower
pursuant to Section 2.01. Each Loan shall be either an ABR Loan or a Eurodollar
Loan.
"MANAGEMENT FEES" shall have the meaning set forth in Section
6.09(e).
"MANAGEMENT SERVICES AGREEMENT" shall have the meaning set forth in
Section 6.09.
"MARGIN STOCK" shall have the meaning assigned to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" shall mean (a) a material adverse effect
on the business, property, assets, results of operations, condition (financial
or otherwise), liabilities or material agreements of Borrower and its
Subsidiaries, taken as a whole; (b) material impairment of the ability of the
Loan Parties to fully and timely perform any of their obligations under any Loan
Document; (c) material impairment of the rights of or benefits or remedies
available to the Lenders or the Collateral Agent under any Loan Document; or (d)
a material adverse effect on the Collateral or the Liens in favor of the
Collateral Agent (for its benefit and for the benefit of the other Secured
Parties) on the Collateral or the priority of such Liens.
"MATERIAL CASUALTY EVENT" shall have the meaning assigned to such
term in Section 3.05(c).
"MAXIMUM RATE" shall have the meaning assigned to such term in
Section 11.13.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service Inc. or any successor
thereto.
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"MORTGAGE" shall mean an agreement, including, but not limited to, a
mortgage, deed of trust or any other document, creating and evidencing a Lien on
a Mortgaged Property, which shall be substantially in the form of Exhibit I or
other form reasonably satisfactory to the Collateral Agent and with such
schedules and including such provisions as shall be necessary to conform such
document to applicable local or foreign law or as shall be customary under
applicable local or foreign law and, in each case, which Mortgage shall be
subject to the Intercreditor Agreement.
"MORTGAGED PROPERTY" shall mean (a) each Real Property identified on
Schedule 1.01(a) hereto, which shall be subject to a Mortgage hereunder and (b)
each Real Property, if any, which shall be subject to a Mortgage delivered after
the Effective Date pursuant to Section 5.11(c).
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan within the
meaning of Section 4001(a)(3) of ERISA (a) to which any Company or any ERISA
Affiliate is then making or accruing an obligation to make contributions; (b) to
which any Company or any ERISA Affiliate has within the preceding five plan
years made contributions; or (c) with respect to which any Company could incur
liability.
"NET CASH PROCEEDS" shall mean:
(a) with respect to any Asset Sale (other than any issuance or sale
of Equity Interests), the cash proceeds received by Holdings or any of its
Subsidiaries (including cash proceeds subsequently received (as and when
received by Holdings or any of its Subsidiaries) in respect of non-cash
consideration initially received) net of (i) selling expenses (including
reasonable brokers' fees or commissions, legal, accounting and other
professional and transactional fees, transfer and similar taxes and
Borrower's good faith estimate of income taxes paid or payable in
connection with such sale); (ii) amounts provided as a reserve, in
accordance with GAAP, against (x) any liabilities under any
indemnification obligations associated with such Asset Sale or (y) any
other liabilities retained by Holdings or any of its Subsidiaries
associated with the properties sold in such Asset Sale (provided that, to
the extent and at the time any such amounts are released from such
reserve, such amounts shall constitute Net Cash Proceeds); (iii)
Borrower's good faith estimate of payments required to be made with
respect to unassumed liabilities relating to the properties sold within 90
days of such Asset Sale (provided that, to the extent such cash proceeds
are not used to make payments in respect of such unassumed liabilities
within 90 days of such Asset Sale, such cash proceeds shall constitute Net
Cash Proceeds); and (iv) the principal amount, premium or penalty, if any,
interest and other amounts on any Indebtedness (including Capital Leases)
for borrowed money which is secured by a Lien on the properties sold in
such Asset Sale (so long as such Lien was permitted to encumber such
properties under the Loan Documents at the time of such sale) and which is
repaid with such proceeds (other than any such Indebtedness assumed by the
purchaser of such properties);
(b) with respect to any Debt Issuance or issuance or sale of Equity
Interests by Holdings or any of its Subsidiaries, the cash proceeds
thereof, net of customary fees, commissions, costs and other expenses
incurred in connection therewith; and
(c) with respect to any Casualty Event, the cash insurance proceeds,
condemnation awards and other compensation received in respect thereof
(other than proceeds from customary business interruption insurance), net
of all reasonable costs and expenses incurred in connection with the
collection of such proceeds, awards or other compensation in respect of
such Casualty Event.
-21-
"NET WORKING CAPITAL" shall mean, at any time, Consolidated Current
Assets at such time minus Consolidated Current Liabilities at such time.
"NEW NORTH CAROLINA PLANT" shall mean the proposed new manufacturing
facility anticipated to be located in North Carolina.
"NOTES" shall mean any notes evidencing the Loans issued pursuant to
this Agreement, if any, substantially in the form of Exhibit J.
"OBLIGATIONS" shall mean (a) obligations of Borrower and the other
Loan Parties from time to time arising under or in respect of the due and
punctual payment of (i) the principal of and premium, if any, and interest
(including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (ii) all other monetary obligations, including fees, costs, expenses
and indemnities, whether primary, secondary, direct, contingent, fixed or
otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), of Borrower and the other Loan
Parties under this Agreement and the other Loan Documents owing to the Secured
Parties (in their capacity as such) and (b) the due and punctual performance of
all covenants, agreements, obligations and liabilities of Borrower and the other
Loan Parties under or pursuant to this Agreement and the other Loan Documents
owing to the Secured Parties (in their capacity as such).
"OFAC" shall have the meaning assigned to such term in Section 3.22.
"OFFICERS' CERTIFICATE" shall mean a certificate executed by (i) the
chairman of the Board of Directors (if an officer), the chief executive officer,
chief operating officer or the president and (ii) one of the Financial Officers,
each in his or her official (and not individual) capacity.
"ORGANIZATIONAL DOCUMENTS" shall mean, with respect to any person,
(i) in the case of any corporation, the certificate of incorporation and by-laws
(or similar documents) of such person, (ii) in the case of any limited liability
company, the certificate of formation and operating agreement (or similar
documents) of such person, (iii) in the case of any limited partnership, the
certificate of formation and limited partnership agreement (or similar
documents) of such person, (iv) in the case of any general partnership, the
partnership agreement (or similar document) of such person and (v) in any other
case, the functional equivalent of the foregoing.
"ORIGINAL FIRST LIEN CREDIT AGREEMENT" shall have the meaning
assigned to such term in the recitals hereto.
"OTHER LIST" shall have the meaning assigned to such term in Section
6.18.
"OTHER TAXES" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies (including interest, fines, penalties and additions to tax) arising from
any payment made or required to be made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"PARTICIPANT" shall have the meaning assigned to such term in
Section 11.04(e).
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to and defined in ERISA.
-22-
"PERFECTION CERTIFICATE" shall mean a certificate in the form of
Exhibit K-1 or any other form approved by the Collateral Agent, as the same
shall be supplemented from time to time by a Perfection Certificate Supplement
or otherwise.
"PERFECTION CERTIFICATE SUPPLEMENT" shall mean a certificate
supplement in the form of Exhibit K-2 or any other form approved by the
Collateral Agent.
"PERMITTED ACQUISITION" shall mean any transaction or series of
related transactions for the direct or indirect (a) acquisition of all or
substantially all of the property of any person, or of any business or division
of any person; (b) acquisition of in excess of 50% of the Equity Interests of
any person, and otherwise causing such person to become a Subsidiary of such
person; or (c) merger or consolidation or any other combination with any person,
if each of the following conditions is met:
(i) no Default then is continuing or would result therefrom;
(ii) after giving effect to such transaction on a Pro Forma Basis,
Window Holdings shall be in compliance with all covenants set forth in
Section 6.10 as of the most recent Test Period (assuming, for purposes of
Section 6.10, that such transaction, and all other Permitted Acquisitions
consummated since the first day of the relevant Test Period for each of
the covenants set forth in Section 6.10 ending on or prior to the date of
such transaction, had occurred on the first day of such relevant Test
Period);
(iii) no Company shall, in connection with any such transaction,
assume or remain liable with respect to any Indebtedness or other
liability (including any material tax or ERISA liability) of the related
seller or the business, person or properties acquired, except (A) to the
extent permitted under Section 6.01 and (B) obligations not constituting
Indebtedness incurred in the ordinary course of business, and any other
such liabilities or obligations not permitted to be assumed or otherwise
supported by any Company hereunder shall be paid in full or released as to
the business, persons or properties being so acquired on or before the
consummation of such acquisition;
(iv) the person or business to be acquired shall be, or shall be
engaged in, a business of the type that Borrower and the Subsidiaries are
permitted to be engaged in under Section 6.15 and the property acquired in
connection with any such transaction shall be made subject to the Lien of
the Security Documents and shall be free and clear of any Liens, other
than Permitted Collateral Liens;
(v) the Board of Directors of the person to be acquired shall not
have indicated publicly its opposition to the consummation of such
acquisition (which opposition has not been publicly withdrawn);
(vi) all transactions in connection therewith shall be consummated
in accordance with all applicable laws of all applicable Governmental
Authorities;
(vii) with respect to any transaction involving Acquisition
Consideration of more than $10.0 million, unless the Administrative Agent
shall otherwise agree, Borrower shall have provided the Administrative
Agent and the Lenders with (A) historical financial statements for the
last three fiscal years of the person or business to be acquired (audited
if available without undue cost or delay) and unaudited financial
statements thereof for the most recent interim period which are available,
(B) reasonably detailed projections for the succeeding five years
pertaining to the person or business to be acquired and updated
projections for Borrower after giving effect to such
-23-
transaction, (C) a reasonably detailed description of all material information
relating thereto and copies of all material documentation pertaining to such
transaction, and (D) all such other information and data relating to such
transaction or the person or business to be acquired as may be reasonably
requested by the Administrative Agent or the Required Lenders;
(viii) at least 5 Business Days prior to the proposed date of
consummation of the transaction, Borrower shall have delivered to the
Agents and the Lenders an Officers' Certificate certifying that (A) such
transaction complies with this definition (which shall have attached
thereto reasonably detailed backup data and calculations showing such
compliance), and (B) such transaction could not reasonably be expected to
result in a Material Adverse Effect; and
(ix) the Acquisition Consideration (exclusive of any amounts
financed by Excluded Issuances) for such acquisition shall not exceed
$27.5 million (other than in connection with the Glass Plant Purchase,
which occurred on March 5, 2004) and the aggregate amount of the
Acquisition Consideration (exclusive of any amounts financed by Excluded
Issuances) for all Permitted Acquisitions (other than the Glass Plant
Purchase, which occurred on March 5, 2004) since the First Lien Closing
Date shall not exceed $49.5 million; provided that any Equity Interests
constituting all or a portion of such Acquisition Consideration shall not
have a cash dividend requirement on or prior to the Second Lien Maturity
Date.
"PERMITTED COLLATERAL LIENS" means (i) Contested Liens (as defined
in the Security Agreement), (ii) the Liens described in clauses (a), (b), (c),
(d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (o) and (p) of Section
6.02 and (iii) in the case of Mortgaged Property, "Permitted Collateral Liens"
shall mean the Liens described in clauses (a), (b), (d), (e), (g) and (l) of
Section 6.02; provided, however upon the Effective Date or upon the date of
delivery of each additional Mortgage under Section 5.11 or 5.12, Permitted
Collateral Liens shall mean only those Liens set forth in Schedule B to the
applicable Mortgage.
"PERMITTED HOLDERS" shall mean (a) Sponsor and (b) its Controlled
Investment Affiliates.
"PERMITTED LIENS" shall have the meaning assigned to such term in
Section 6.02.
"PERMITTED NORTH CAROLINA SALE AND LEASEBACK TRANSACTION" shall mean
a Sale and Leaseback Transaction entered into in connection with the New North
Carolina Plant, provided that (i) all of the assets sold or transferred in such
transaction are leased or rented back by the party selling or transferring such
assets and (ii) the lease and rental of such assets occurs substantially
currently with the sale thereof.
"PERSON" shall mean any natural person, corporation, business trust,
joint venture, association, company, limited liability company, partnership or
government, or any agency or political subdivision thereof, in any case, whether
acting in a personal, fiduciary or other capacity.
"PGT HOLDING" shall have the meaning assigned to such term in the
recitals hereto.
"PGT INDUSTRIES" shall have the meaning assigned to such term in the
preamble hereto.
"PLAN" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA which is maintained or contributed to by
any Company or its ERISA Affiliate or with respect to which any Company could
incur liability (including under Section 4069 of ERISA).
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"PREFERRED STOCK" shall mean, with respect to any person, any and
all preferred or preference Equity Interests (however designated) of such person
whether now outstanding or issued after the Effective Date.
"PREFERRED STOCK ISSUANCE" shall mean the issuance or sale by
Holdings or any of its Subsidiaries of any Preferred Stock after the Effective
Date (other than (x) as permitted by Section 6.01 or (y) any Excluded Issuance).
"PREMISES" shall have the meaning assigned thereto in the applicable
Mortgage.
"PRIORITY DEBT REPAYMENT AMOUNT" shall have the meaning assigned
thereto in the Intercreditor Agreement.
"PRO FORMA BASIS" shall mean on a basis in accordance with GAAP and
Regulation S-X and otherwise reasonably satisfactory to the Administrative
Agent.
"PROCEEDING" shall mean, with respect to any person, any (a)
insolvency, bankruptcy, receivership, reorganization, readjustment, composition
or other similar proceeding relating to such person or its property or creditors
in such capacity, (b) proceeding for any liquidation, dissolution or other
winding-up of such person, voluntary or involuntary, whether or not involving
insolvency or proceedings under the Bankruptcy Code, whether partial or complete
and whether by operation of law or otherwise, (c) assignment for the benefit of
creditors of such person or (d) other marshalling of the assets of such person.
"PROPERTY" shall mean any right, title or interest in or to property
or assets of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible and including Equity Interests or other ownership
interests of any person and whether now in existence or owned or hereafter
entered into or acquired, including all Real Property.
"PURCHASE MONEY OBLIGATION" shall mean, for any person, the
obligations of such person in respect of Indebtedness (including Capital Lease
Obligations) incurred for the purpose of financing all or any part of the
purchase price of any property (including Equity Interests of any person) or the
cost of installation, construction or improvement of any property and any
refinancing thereof; provided that (i) such Indebtedness is incurred within 90
days after such acquisition of such property by such person and (ii) the amount
of such Indebtedness does not exceed 100% of the cost of such acquisition,
installation, construction or improvement, as the case may be.
"QUALIFIED CAPITAL STOCK" of any person shall mean any Equity
Interests of such person that are not Disqualified Capital Stock.
"QUALIFIED CONTRIBUTION TRANSACTION" shall mean the issuance or sale
by PGT Industries of Equity Interests in PGT Industries to a person (an
"ADDITIONAL EQUITY PARTNER"), if each of the following conditions is met:
(i) the Equity Interests issued or sold are Qualified Capital Stock;
(ii) the Additional Equity Partner shall be a corporation or a
limited liability company organized under the laws of the United States or
any state thereof or the District of Columbia who shall have provided to
the Administrative Agent such documents, instruments and other information
as may be necessary or desirable in order to enable the Administrative
Agent to comply with applicable Anti-Terrorism Laws;
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(iii) contemporaneously with its acquisition of such Equity
Interests, the Additional Equity Partner shall duly execute and deliver a
joinder agreement (in form and substance reasonably satisfactory to the
Administrative Agent) pursuant to which it shall become a Guarantor
hereunder and be subject to Article VII hereto and be bound as if it were
a Loan Party by the covenants set forth in Section 5.11(d), 6.14, the
first sentence of Section 6.15(a) (substituting the words "Window
Holdings" with "the Additional Equity Partner") and Sections 6.18, 6.19
and 6.20 and shall duly execute a joinder agreement (in form and substance
reasonably satisfactory to the Collateral Agent) to the applicable
Security Documents in accordance with Section 5.11(d) and take all other
actions set forth therein;
(iv) not less than 5 Business Days prior to the consummation of the
issuance or sale, Borrower shall provide written notice to the
Administrative Agent identifying the Additional Equity Partner, the
Company which will be issuing or selling the Equity Interests and setting
forth the contribution to be received; and
(v) upon the consummation of such sale or issuance, Borrower shall
deliver to the Administrative Agent an opinion of counsel (in form and
substance satisfactory to Administrative Agent), as to the enforceability
of the Additional Equity Partner's Guarantee and as to the enforceability,
validity and existence of a perfected and valid security interest in the
Collateral of the Additional Equity Partner required to be pledged
pursuant to Section 5.11(d).
"REAL PROPERTY" shall mean, collectively, all right, title and
interest (including any leasehold estate) in and to any and all parcels of or
interests in real property owned, leased or operated by any person, whether by
lease, license or other means, together with, in each case, all easements,
hereditaments and appurtenances relating thereto, all improvements and
appurtenant fixtures and equipment, all general intangibles and contract rights
and other property and rights incidental to the ownership, lease or operation
thereof.
"REFINANCING" shall mean the repayment in full and the termination
of any commitment to make extensions of credit under all of the outstanding
indebtedness of Holdings or any of its Subsidiaries listed on Schedule 1.01(b),
which occurred on the First Lien Closing Date in 2004.
"REGISTER" shall have the meaning assigned to such term in Section
11.04(c).
"REGULATION D" shall mean Regulation D of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"REGULATION S-X" shall mean Regulation S-X promulgated under the
Securities Act.
"REGULATION T" shall mean Regulation T of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"REGULATION U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"REGULATION X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"RELATED FUND" shall mean with respect to any Lender that is a fund
that buys or invests in bank loans, any other fund that buys or invests in
commercial loans or investments and is managed,
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administered or advised by the same investment advisor as such Lender or by an
Affiliate of such advisor, or an entity or an Affiliate of an entity which
manages, administers or advises such Lender.
"RELEASE" shall mean any spilling, leaking, seepage, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
dumping, disposing, depositing, dispersing, emanating or migrating of any
Hazardous Material in, into, onto or through the Environment.
"REQUIRED LENDERS" shall mean, at any time, Lenders having Loans
Commitments representing more than 50% of the sum of all Loans outstanding
Commitments at such time.
"REQUIREMENTS OF LAW" shall mean, collectively, any and all
requirements of any Governmental Authority including any and all laws,
ordinances, rules, regulations or similar statutes or case law.
"RESPONSE" shall mean (a) "response" as such term is defined in
CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions required by any
Governmental Authority or voluntarily undertaken to (i) clean up, remove, treat,
▇▇▇▇▇ or in any other way address any Hazardous Material in the environment;
(ii) prevent the Release or threat of Release, or minimize the further Release,
of any Hazardous Material; or (iii) perform studies and investigations in
connection with, or as a precondition to, clause (i) or (ii) above.
"RESPONSIBLE OFFICER" of any person shall mean any executive officer
or Financial Officer of such person and any other officer or similar official
thereof with responsibility for the administration of the obligations of such
person in respect of this Agreement.
"SALE AND LEASEBACK TRANSACTION" has the meaning assigned to such
term in Section 6.03.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto.
"SDN LIST" shall have the meaning assigned to such term in Section
6.18.
"SECOND LIEN MATURITY DATE" shall mean August 14, 2012 or, if such
date is not a Business Day, the first Business Day thereafter.
"SECOND PRIORITY" means, with respect to any Lien purported to be
created in any Collateral pursuant to any Security Document, that such Lien is
junior in priority only to the Liens created under the First Lien Loan Documents
(subject to Permitted Collateral Liens).
"SECURED PARTIES" shall mean the Agents, each Lender that holds
Loans or has Commitments (in its capacity as such).
"SECURITIES ACT" shall mean the Securities Act of 1933.
"SECURITIES COLLATERAL" shall have the meaning assigned to such term
in the Security Agreement.
"SECURITY AGREEMENT" shall mean the Pledge and Security Agreement
substantially in the form of Exhibit L among the Loan Parties and Collateral
Agent for the benefit of the Secured Parties.
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"SECURITY AGREEMENT COLLATERAL" shall mean all property pledged or
granted as collateral pursuant to the Security Agreement delivered on the
Effective Date or thereafter pursuant to Section 5.11.
"SECURITY DOCUMENTS" shall mean the Security Agreement, the
Mortgages and each other security document or pledge agreement delivered in
accordance with applicable local or foreign law to grant a valid, perfected
security interest in any property as collateral for the Obligations, and all UCC
or other financing statements or instruments of perfection required by this
Agreement, the Security Agreement, any Mortgage or any other such security
document or pledge agreement to be filed with respect to the security interests
in property and fixtures created pursuant to the Security Agreement or any
Mortgage and any other document or instrument utilized to pledge as collateral
for the Obligations any property.
"SELLERS" shall have the meaning assigned to such term in the
recitals hereto.
"SELLERS' REPRESENTATIVE" shall have the meaning assigned to such
term in the recitals hereto.
"SPONSOR" shall mean JLL Partners Fund IV L.P.
"STATUTORY RESERVES" shall mean for any Interest Period for any
Eurodollar Borrowing, the average maximum rate at which reserves (including any
marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by member banks of the United
States Federal Reserve System in New York City with deposits exceeding one
billion dollars against "Eurodollar liabilities" (as such term is used in
Regulation D). Eurodollar Borrowings shall be deemed to constitute Eurodollar
liabilities and to be subject to such reserve requirements without benefit of or
credit for proration, exceptions or offsets which may be available from time to
time to any Lender under Regulation D.
"SUBORDINATED INDEBTEDNESS" shall mean Indebtedness of Borrower or
any Guarantor that is by its terms subordinated in right of payment to the
Obligations of Borrower and such Guarantor, as applicable.
"SUBSIDIARY" shall mean, with respect to any person (the "PARENT")
at any date, (i) any person the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, (ii)
any other corporation, limited liability company, association or other business
entity of which securities or other ownership interests representing more than
50% of the voting power of all Equity Interests entitled (without regard to the
occurrence of any contingency) to vote in the election of the Board of Directors
thereof are, as of such date, owned, controlled or held by the parent and/or one
or more subsidiaries of the parent, (iii) any partnership (a) the sole general
partner or the managing general partner of which is the parent and/or one or
more subsidiaries of the parent or (b) the only general partners of which are
the parent and/or one or more subsidiaries of the parent and (iv) any other
person that is otherwise Controlled by the parent and/or one or more
subsidiaries of the parent. Unless the context requires otherwise, "Subsidiary"
refers to a Subsidiary of Borrower.
"SUBSIDIARY GUARANTOR" shall mean each Subsidiary that becomes a
party to this Agreement after the date hereof pursuant to Section 5.11.
"SUBSIDIARY JOINDER AGREEMENT" shall mean a joinder agreement
substantially in the form of Exhibit F-1.
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"SUCCESSFUL SYNDICATION" shall mean the successful syndication of
the Loans and the Commitments by the Arranger, as reasonably determined by the
Arranger.
"SUPERMAJORITY LENDERS" shall mean at any time, Lenders having Loans
and unused Commitments representing at least 66 2/3% of the sum of all Loans
outstanding and Commitments at such time.
"SURVEY" shall mean a survey of any Mortgaged Property (and all
improvements thereon) which is (a) (i) prepared by a surveyor or engineer
licensed to perform surveys in the state where such Mortgaged Property is
located and sufficient for the Title Company to remove all standard survey
exceptions from the title insurance policy (or commitment) relating to such
Mortgaged Property and issue the endorsements of the type required by Section
4.01(B)(o)(iii) or (b) otherwise acceptable to the Collateral Agent.
"SYNDICATION AGENT" means UBS SECURITIES LLC.
"TAX RETURN" shall mean all returns, statements, filings,
attachments and other documents or certifications required to be filed in
respect of Taxes.
"TAXES" shall mean (i) any and all present or future taxes, duties,
levies, imposts, assessments, deductions, withholdings or other similar charges,
whether computed on a separate, consolidated, unitary, combined or other basis
and any and all liabilities (including interest, fines, penalties or additions
to tax) with respect to the foregoing, and (ii) any transferee, successor, joint
and several, contractual or other liability (including liability pursuant to
Treasury Regulation Section 1.1502-6 (or any similar provision of state, local
or non-U.S. law)) in respect of any item described in clause (i).
"TEST PERIOD" shall mean, at any time, the four consecutive fiscal
quarters of Window Holdings then last ended (in each case taken as one
accounting period) for which financial statements have been or are required to
be delivered pursuant to Section 5.01(a) or (b).
"TITLE COMPANY" shall mean any title insurance company as shall be
retained by Borrower and reasonably acceptable to the Administrative Agent.
"TITLE POLICY" shall have the meaning assigned to such term in
Section 4.01(B)(o)(iii).
"TOTAL LEVERAGE RATIO" shall mean, at any date of determination, the
ratio of Consolidated Indebtedness on such date to Consolidated EBITDA for the
Test Period then most recently ended.
"TRANSACTIONS" shall mean, collectively, the making of the 2006
Dividend and the transactions to occur substantially concurrently with the
effectiveness of this Agreement on the Effective Date as contemplated hereunder,
including (a) the execution and delivery of this Agreement and the Security
Documents and the borrowing of the Loans, (b) the execution and delivery of the
First Lien Credit Agreement and the other First Lien Loan Documents and the
borrowing of amounts as contemplated thereunder and (c) the payment of all fees
and expenses to be paid on or prior to the Effective Date and owing in
connection with the foregoing.
"TRANSFERRED GUARANTOR" shall have the meaning assigned to such term
in Section 7.09.
"TYPE," when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBOR Rate or the
Alternate Base Rate.
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"UCC" shall mean the Uniform Commercial Code as in effect from time
to time (except as otherwise specified) in any applicable state or jurisdiction.
"UNITED STATES" shall mean the United States of America.
"VOTING STOCK" shall mean, with respect to any person, any class or
classes of Equity Interests pursuant to which the holders thereof have the
general voting power under ordinary circumstances to elect at least a majority
of the Board of Directors of such person.
"WHOLLY OWNED SUBSIDIARY" shall mean, as to any person, (a) any
corporation 100% of whose capital stock (other than directors' qualifying
shares) is at the time owned by such person and/or one or more Wholly Owned
Subsidiaries of such person and (b) any partnership, association, joint venture,
limited liability company or other entity in which such person and/or one or
more Wholly Owned Subsidiaries of such person have a 100% equity interest at
such time.
"WINDOW COMPANY" shall have the meaning assigned to such term in the
preamble hereto.
"WINDOW HOLDINGS" shall have the meaning assigned to such term in
the preamble hereto.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02 CLASSIFICATION OF LOANS AND BORROWINGS. For purposes of
this Agreement, Loans and Borrowings may be classified and referred to by Type
(e.g., a "Eurodollar Loan") and ("Eurodollar Borrowing").
SECTION 1.03 TERMS GENERALLY. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include," "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall."
Unless the context requires otherwise (a) any definition of or reference to any
Loan Document, agreement, instrument or other document herein shall be construed
as referring to such agreement, instrument or other document as from time to
time amended, supplemented or otherwise modified (subject to any restrictions on
such amendments, supplements or modifications set forth herein), (b) any
reference herein to any person shall be construed to include such person's
successors and assigns, (c) the words "herein," "hereof" and "hereunder," and
words of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof and (d) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to refer
to Articles and Sections of, and Exhibits and Schedules to, this Agreement,
unless otherwise indicated.
SECTION 1.04 ACCOUNTING TERMS; GAAP. Except as otherwise expressly
provided herein, all financial statements to be delivered pursuant to this
Agreement shall be prepared in accordance with GAAP as in effect from time to
time and all terms of an accounting or financial nature shall be construed and
interpreted in accordance with GAAP, as in effect on the date hereof unless
otherwise agreed to by Borrower and the Required Lenders.
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SECTION 1.05 RESOLUTION OF DRAFTING AMBIGUITIES. Each Loan Party
acknowledges and agrees that it was represented by counsel in connection with
the execution and delivery of the Loan Documents to which it is a party, that it
and its counsel reviewed and participated in the preparation and negotiation
hereof and thereof and that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation hereof or thereof.
ARTICLE II
THE CREDITS
SECTION 2.01 COMMITMENTS. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly to make a Loan to Borrower on the Effective
Date in the principal amount not to exceed its Commitment.
Amounts paid or prepaid in respect of Loans may not be reborrowed.
SECTION 2.02 LOANS.
(a) Each Loan shall be made as part of a Borrowing consisting of
Loans made by the Lenders ratably in accordance with their applicable
Commitments; provided that the failure of any Lender to make any Loan shall not
in itself relieve any other Lender of its obligation to lend hereunder (it being
understood, however, that no Lender shall be responsible for the failure of any
other Lender to make any Loan required to be made by such other Lender). ABR
Loans comprising any Borrowing shall be in an aggregate principal amount that is
an integral multiple of $250,000 and not less than $1,000,000.
(b) Subject to Sections 2.11 and 2.12, each Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as Borrower may request
pursuant to Section 2.03. Each Lender may at its option make any Eurodollar Loan
by causing any domestic or foreign branch or Affiliate of such Lender to make
such Loan; provided that any exercise of such option shall not affect the
obligation of Borrower to repay such Loan in accordance with the terms of this
Agreement. Borrowings of more than one Type may be outstanding at the same time;
provided that Borrower shall not be entitled to request any Borrowing that, if
made, would result in more than five Eurodollar Borrowings outstanding hereunder
at any one time. For purposes of the foregoing, Borrowings having different
Interest Periods, regardless of whether they commence on the same date, shall be
considered separate Borrowings.
(c) Each Lender shall make each Loan to be made by it hereunder on
the proposed date thereof by wire transfer of immediately available funds to
such account as the Administrative Agent may designate not later than 2:00 p.m.,
New York City time, and the Administrative Agent shall promptly credit the
amounts so received to an account as directed by Borrower in the applicable
Borrowing Request maintained with the Administrative Agent or, if a Borrowing
shall not occur on such date because any condition precedent herein specified
shall not have been met, return the amounts so received to the respective
Lenders.
(d) Unless the Administrative Agent shall have received notice from
a Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above, and the Administrative Agent may, in
reliance upon such assumption, make available to Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available, then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, each of such Lender and Borrower
severally agrees to repay to the Administrative
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Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to Borrower
until the date such amount is repaid to the Administrative Agent at (i) in the
case of Borrower, the interest rate applicable at the time to the Loans
comprising such Borrowing and (ii) in the case of such Lender, the greater of
the Federal Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation. If
such Lender shall repay to the Administrative Agent such corresponding amount,
such amount shall constitute such Lender's Loan as part of such Borrowing for
purposes of this Agreement, and Borrower's obligation to repay the
Administrative Agent such corresponding amount pursuant to this Section 2.02(d)
shall cease.
(e) Notwithstanding any other provision of this Agreement, Borrower
shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Second Lien Maturity Date.
SECTION 2.03 BORROWING PROCEDURE. To request a Borrowing, Borrower
shall deliver, by hand delivery or telecopy, a duly completed and executed
Borrowing Request to the Administrative Agent (i) in the case of a Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, three Business Days
before the date of the proposed Borrowing or (ii) in the case of an ABR
Borrowing, not later than 11:00 a.m., New York City time, on the date of the
proposed Borrowing. Each Borrowing Request shall be irrevocable and shall
specify the following information in compliance with Section 2.02:
(a) the aggregate amount of such Borrowing;
(b) the date of such Borrowing, which shall be a Business Day;
(c) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(d) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; provided that until the date
on which the Syndication Agent shall have notified Borrower that a
Successful Syndication has been achieved, the Interest Period shall be
seven days;
(e) the location and number of Borrower's account to which funds are
to be disbursed, which shall comply with the requirements of Section
2.02(c); and
(f) that the conditions set forth in Sections 4.02(b)-(d) have been
satisfied as of the date of the notice.
If no election as to the Type of Borrowing is specified, then the
requested Borrowing shall be an ABR Borrowing. If no Interest Period is
specified with respect to any requested Eurodollar Borrowing, then Borrower
shall be deemed to have selected an Interest Period of one month's duration
(subject to the proviso in clause (d) above). Promptly following receipt of a
Borrowing Request in accordance with this Section, the Administrative Agent
shall advise each Lender of the details thereof and of the amount of such
Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04 EVIDENCE OF DEBT; REPAYMENT OF LOANS.
(a) Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender the principal amount of each
Loan of such Lender as provided in Section 2.09.
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(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it
will record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto; (ii) the amount of any principal or interest
due and payable or to become due and payable from Borrower to each Lender
hereunder; and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and (c) above shall be prima facie evidence of the existence and
amounts of the obligations therein recorded; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligations of Borrower to repay the
Loans in accordance with their terms.
(e) Any Lender by written notice to Borrower (with a copy to the
Administrative Agent) may request that Loans made by it be evidenced by a
promissory note. In such event, Borrower shall prepare, execute and deliver to
such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) in the form
of Exhibit J, as the case may be. Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 11.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.05 FEES.
(a) Administrative Agent Fees. Borrower agrees to pay to the
Administrative Agent, for its own account, the administrative fees set forth in
the Fee Letter or such other fees payable in the amounts and at the times
separately agreed upon between Borrower and the Administrative Agent (the
"ADMINISTRATIVE AGENT FEES").
(b) All Fees shall be paid on the dates due, in immediately
available funds in dollars, to the Administrative Agent. Once paid, none of the
Fees shall be refundable under any circumstances.
SECTION 2.06 INTEREST ON LOANS.
(a) Subject to the provisions of Section 2.06(c), the Loans
comprising each ABR Borrowing shall bear interest at a rate per annum equal to
the Alternate Base Rate plus the Applicable Margin in effect from time to time.
(b) Subject to the provisions of Section 2.06(c), the Loans
comprising each Eurodollar Borrowing shall bear interest at a rate per annum
equal to the Adjusted LIBOR Rate for the Interest Period in effect for such
Borrowing plus the Applicable Margin in effect from time to time.
(c) Notwithstanding the foregoing, during an Event of Default, all
Obligations shall, to the extent permitted by applicable law, bear interest,
after as well as before judgment, at a per annum rate equal to (i) in the case
of principal and premium, if any, of or interest on any Loan, 2% plus the higher
of (I) the Alternate Base Rate plus the Applicable Margin and (II) the rate
otherwise applicable to such Loan as provided in the preceding paragraphs of
this Section 2.06 or (ii) in the case of any other
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amount, 2% plus the rate applicable to ABR Loans as provided in Section 2.06(a)
(in either case, the "DEFAULT RATE").
(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan; provided that (i) interest accrued
pursuant to Section 2.06(c) shall be payable on demand, (ii) in the event of any
repayment or prepayment of any Loan, accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repayment or prepayment
and (iii) in the event of any conversion of any Eurodollar Loan prior to the end
of the current Interest Period therefor, accrued interest on such Loan shall be
payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Alternate
Base Rate or Adjusted LIBOR Rate shall be determined by the Administrative Agent
in accordance with the provisions of this Agreement and such determination shall
be conclusive absent manifest error.
SECTION 2.07 TERMINATION OF COMMITMENTS.
The Commitments shall automatically terminate at 5:00 p.m., New York
City time, on the Effective Date.
SECTION 2.08 INTEREST ELECTIONS.
(a) Each Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request.
Thereafter, Borrower may elect to convert such Borrowing to a different Type or
to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect
Interest Periods therefor, all as provided in this Section 2.08. Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. Notwithstanding
anything to the contrary, Borrower shall not be entitled to request any
conversion or continuation that, if made, would result in more than five
Eurodollar Borrowings outstanding hereunder at any one time.
(b) To make an election pursuant to this Section 2.08, Borrower
shall deliver, by hand delivery or telecopy, a duly completed and executed
Interest Election Request to the Administrative Agent not later than the time
that a Borrowing Request would be required under Section 2.03 if Borrower were
requesting a Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each Interest Election Request shall be
irrevocable.
(c) Each Interest Election Request shall specify the following
information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, or if outstanding Borrowings are being combined,
allocation to each resulting Borrowing (in which case the information to
be specified pursuant to clauses (iii) and (iv) below shall be specified
for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
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(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period"; provided that until the date on which the
Syndication Agent shall have notified Borrower that a Successful
Syndication has been achieved, the Interest Period shall be seven days.
If any such Interest Election Request requests a Eurodollar
Borrowing but does not specify an Interest Period, then Borrower shall be deemed
to have selected an Interest Period of one month's duration (subject to the
proviso in clause (iv) above).
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If an Interest Election Request with respect to a Eurodollar
Borrowing is not timely delivered prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein, at
the end of such Interest Period such Borrowing shall be converted to an ABR
Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing, the Administrative Agent or the Required Lenders
may require, by notice to Borrower, that (i) no outstanding Borrowing may be
converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each
Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
SECTION 2.09 REPAYMENT OF BORROWINGS.
To the extent not previously paid, all Loans shall be due and
payable on the Second Lien Maturity Date.
SECTION 2.10 OPTIONAL AND MANDATORY PREPAYMENTS OF LOANS.
(a) Optional Prepayments. Borrower shall have the right at any time
and from time to time to prepay any Borrowing, in whole or in part, subject to
the requirements of this Section 2.10 (including Section 2.10(g)); provided that
each partial prepayment of Loans shall be in an amount that is an integral
multiple of $250,000 and not less than $1.0 million.
(b) [Intentionally Omitted]
(c) Asset Sales. After the Discharge of the Outstanding First Lien
Loans, not later than one Business Day following the receipt of any Net Cash
Proceeds of any Asset Sale by Holdings or any of its Subsidiaries, Borrower
shall apply 100% of such Net Cash Proceeds to make prepayments in accordance
with Sections 2.10(h) and (i); provided that:
(i) so long as no Default is then continuing or would arise
therefrom, no such prepayment shall be required under this Section
2.10(c)(i) with respect to (A) any Asset Sale permitted by Section
6.06(a), (B) the disposition of property which constitutes a Casualty
Event, or (C) Asset Sales for fair market value resulting in no more than
$500,000 in Net Cash Proceeds per Asset Sale (or series of related Asset
Sales) and less than $1.0 million in aggregate Net Cash
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Proceeds in any fiscal year; provided that clause (C) shall not apply in
the case of any Asset Sale described in clause (b) of the definition
thereof; and
(ii) so long as no Default is then continuing or would arise
therefrom and the aggregate of such Net Cash Proceeds of Asset Sales shall
not exceed $5.0 million in any fiscal year of Borrower, such proceeds
shall not be required to be so applied on such date to the extent that
Borrower shall have delivered an Officers' Certificate to the
Administrative Agent on or prior to such date stating that such Net Cash
Proceeds are expected to be reinvested in fixed or capital assets within
180 days following the date of such Asset Sale (which Officers'
Certificate shall set forth the estimates of the proceeds to be so
expended); provided that if all or any portion of such Net Cash Proceeds
is not so reinvested within such 180-day period, such unused portion shall
be applied on the last day of such period as a mandatory prepayment as
provided in this Section 2.10(c); and provided, further, that if the
property subject to such Asset Sale constituted Collateral, then all
property purchased with the Net Cash Proceeds thereof pursuant to this
subsection shall be made subject to the Lien of the applicable Security
Documents in favor of the Collateral Agent, for its benefit and for the
benefit of the other Secured Parties in accordance with Sections 5.11 and
5.12.
(d) Debt Issuance or Preferred Stock Issuance. After the Discharge
of the Outstanding First Lien Loans, not later than one Business Day following
the receipt of any Net Cash Proceeds of any Debt Issuance or Preferred Stock
Issuance by Holdings or any of its Subsidiaries, Borrower shall make prepayments
in accordance with Sections 2.10(h) and (i) in an aggregate principal amount
equal to 100% of such Net Cash Proceeds.
(e) Casualty Events. After the Discharge of the Outstanding First
Lien Loans, not later than one Business Day following the receipt of any Net
Cash Proceeds from a Casualty Event by Holdings or any of its Subsidiaries,
Borrower shall apply an amount equal to 100% of such Net Cash Proceeds to make
prepayments in accordance with Sections 2.10(h) and (i); provided that:
(i) so long as no Default is then continuing or would arise
therefrom, such proceeds shall not be required to be so applied on such
date to the extent that Borrower shall have delivered an Officers'
Certificate to the Administrative Agent on or prior to such date stating
that such proceeds are expected to be used to repair, replace or restore
any property in respect of which such Net Cash Proceeds were paid, no
later than 365 days following the date of receipt of such proceeds;
provided that if the property subject to such Casualty Event constituted
Collateral under the Security Documents, then all property purchased with
the Net Cash Proceeds thereof pursuant to this subsection shall be made
subject to the Lien of the applicable Security Documents in favor of the
Collateral Agent, for its benefit and for the benefit of the other Secured
Parties in accordance with Sections 5.11 and 5.12; and
(ii) if any portion of such Net Cash Proceeds shall not be so
applied within such 365-day period, such unused portion shall be applied
on the last day of such period as a mandatory prepayment as provided in
this Section 2.10(e).
(f) Excess Cash Flow. After the Discharge of the Outstanding First
Lien Loans, no later than the earlier of (i) 90 days after the end of each
Excess Cash Flow Period and (ii) the date on which the financial statements with
respect to such fiscal year in which such Excess Cash Flow Period occurs are
delivered pursuant to Section 5.01(a), Borrower shall make prepayments in
accordance with Sections 2.10(h) and (i) in an aggregate principal amount equal
to the ECF Percentage of Excess Cash Flow for the Excess Cash Flow Period then
ended.
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(g) Prepayment Premium. Upon prepayment of Loans (in whole or in
part, including pursuant to a refinancing thereof) at any time on or prior to
the second anniversary of the Effective Date pursuant to Section 2.10(a) or
2.10(d), Borrower shall pay a premium equal to (x) 2.00% of the principal amount
prepaid, if such prepayment is made on or prior to the first anniversary of the
Effective Date or (y) 1.00% of the principal amount prepaid, if such prepayment
is made after the first anniversary of the Effective Date and on or prior to the
second anniversary of the Effective Date.
(h) Application of Prepayments. (i) Prior to any optional or
mandatory prepayment hereunder, Borrower shall select the Borrowing or
Borrowings to be prepaid and shall specify such selection in the notice of such
prepayment pursuant to Section 2.10(i), subject to the provisions of this
Section 2.10(h).
(i) Amounts to be applied pursuant to this Section 2.10 to the
prepayment of Loans shall be applied, as applicable, first to reduce outstanding
ABR Loans. Any amounts remaining after each such application shall be applied to
prepay Eurodollar Loans. Notwithstanding the foregoing, if the amount of any
prepayment of Loans under this Section 2.10 shall be in excess of the amount of
the ABR Loans at the time outstanding (an "EXCESS AMOUNT"), only the portion of
the amount of such prepayment as is equal to the amount of such outstanding ABR
Loans shall be immediately prepaid and, at the election of Borrower, the balance
of such prepayment shall be either (A) deposited in an escrow account on terms
reasonably satisfactory to the Collateral Agent and applied to the prepayment of
Eurodollar Loans on the last day of the then next-expiring Interest Period for
Eurodollar Loans; provided that (i) interest in respect of such Excess Amount
shall continue to accrue thereon at the rate provided hereunder for the Loans
which such Excess Amount is intended to repay until such Excess Amount shall
have been used in full to repay such Loans and (ii) at any time while an Event
of Default has occurred and is continuing, the Administrative Agent may, and
upon written direction from the Required Lenders shall, apply any or all
proceeds then on deposit to the payment of such Loans in an amount equal to such
Excess Amount or (B) prepaid immediately, together with any amounts owing to the
Lenders under Section 2.13.
(i) Notice of Prepayment. Borrower shall notify the Administrative
Agent by written notice of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment and (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment. Each such notice shall be
irrevocable. Each such notice shall specify the prepayment date, the principal
amount of each Borrowing or portion thereof to be prepaid and, in the case of a
mandatory prepayment, a reasonably detailed calculation of the amount of such
prepayment. Promptly following receipt of any such notice, the Administrative
Agent shall advise the Lenders of the contents thereof. Such notice to the
Lenders may be by electronic communication. Each partial prepayment of any
Borrowing shall be in an amount that would be permitted in the case of a Credit
Extension of the same Type as provided in Section 2.02, except as necessary to
apply fully the required amount of a mandatory prepayment. Each prepayment of a
Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing and otherwise in accordance with this Section 2.10. Prepayments shall
be accompanied by accrued interest to the extent required by Section 2.06.
SECTION 2.11 ALTERNATE RATE OF INTEREST. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall
be final and conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBOR Rate for
such Interest Period; or
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(b) the Administrative Agent is advised in writing by the Required
Lenders that the Adjusted LIBOR Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders of making or
maintaining their Loans included in such Borrowing for such Interest
Period;
then the Administrative Agent shall give written notice thereof to Borrower and
the Lenders as promptly as practicable thereafter and, until the Administrative
Agent notifies Borrower and the Lenders that the circumstances giving rise to
such notice no longer exist, (i) any Interest Election Request that requests the
conversion of any Borrowing to, or continuation of any Borrowing as, a
Eurodollar Borrowing shall be ineffective and (ii) if any Borrowing Request
requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR
Borrowing.
SECTION 2.12 INCREASED COSTS.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against property of, deposits with or for the
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBOR Rate); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such
Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal, interest or
otherwise), then Borrower will pay to such Lender such additional amount or
amounts as will compensate such Lender for such additional costs incurred or
reduction suffered, it being understood that, to the extent duplicative of the
provisions of Section 2.15, this Section 2.12 shall not apply to Taxes.
(b) If any Lender determines (in good faith, but in its sole
absolute discretion) that any Change in Law regarding capital requirements has
or would have the effect of reducing the rate of return on such Lender's capital
or on the capital of such Lender's holding company, if any, as a consequence of
this Agreement or the Loans made by such Lender to a level below that which such
Lender or such Lender's holding company could have achieved but for such Change
in Law (taking into consideration such Lender's policies and the policies of
such Lender's holding company with respect to capital adequacy), then from time
to time Borrower will pay to such Lender such additional amount or amounts as
will compensate such Lender or such Lender's holding company for any such
reduction suffered.
(c) A certificate of a Lender setting forth in reasonable detail the
amount or amounts necessary to compensate such Lender or its holding company, as
the case may be, as specified in paragraph (a) or (b) of this Section 2.12 shall
be delivered to Borrower (with a copy to the Administrative Agent) and shall be
conclusive and binding absent manifest error. Borrower shall pay such Lender the
amount shown as due on any such certificate within 5 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section 2.12 shall not constitute a waiver of such
Lender's right to demand such compensation; provided that Borrower shall not be
required to compensate a Lender pursuant to this Section for any increased costs
or reductions incurred more than 180 days prior to the date that such Lender
notifies Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lender's intention to claim compensation therefor;
provided, further, that, if the Change in Law giving rise to such in-
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creased costs or reductions is retroactive, then the 180-day period referred to
above shall not begin earlier than the date of effectiveness of the Change in
Law.
SECTION 2.13 BREAKAGE PAYMENTS. In the event of (a) the payment or
prepayment, whether optional or mandatory, of any principal of any Eurodollar
Loan earlier than the last day of an Interest Period applicable thereto
(including as a result of an Event of Default), (b) the conversion of any
Eurodollar Loan earlier than the last day of the Interest Period applicable
thereto, (c) the failure to borrow, convert, continue or prepay any Loan on the
date specified in any notice delivered pursuant hereto or (d) the assignment of
any Eurodollar Loan earlier than the last day of the Interest Period applicable
thereto as a result of a request by Borrower pursuant to Section 2.16, then, in
any such event, Borrower shall compensate each Lender for the loss, cost and
expense attributable to such event. In the case of a Eurodollar Loan, such loss,
cost or expense to any Lender shall be deemed to include an amount determined by
such Lender to be the excess, if any, of (i) the amount of interest which would
have accrued on the principal amount of such Loan had such event not occurred,
at the Adjusted LIBOR Rate that would have been applicable to such Loan, for the
period from the date of such event to the last day of the then current Interest
Period therefor (or, in the case of a failure to borrow, convert or continue,
for the period that would have been the Interest Period for such Loan), over
(ii) the amount of interest which would accrue on such principal amount for such
period at the interest rate which such Lender would bid, were it to bid, at the
commencement of such period, for dollar deposits of a comparable amount and
period from other banks in the Eurodollar market. A certificate of any Lender
setting forth in reasonable detail any amount or amounts that such Lender is
entitled to receive pursuant to this Section 2.13 shall be delivered to Borrower
(with a copy to the Administrative Agent) and shall be conclusive and binding
absent manifest error. Borrower shall pay such Lender the amount shown as due on
any such certificate within 5 days after receipt thereof.
SECTION 2.14 PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SETOFFS.
(a) Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, premium,
interest or fees, or of amounts payable under Section 2.12, 2.13 or 2.15, or
otherwise) or on or before the time expressly required hereunder or under such
other Loan Document for such payment (or, if no such time is expressly required,
prior to 2:00 p.m., New York City time), on the date when due, in immediately
available funds, without setoff, deduction or counterclaim. Any amounts received
after such time on any date may, in the discretion of the Administrative Agent,
be deemed to have been received on the next succeeding Business Day for purposes
of calculating interest thereon. All such payments shall be made to the
Administrative Agent at its offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ except that payments pursuant to Sections 2.12, 2.13, 2.15 and 11.03
shall be made directly to the persons entitled thereto and payments pursuant to
other Loan Documents shall be made to the persons specified therein. The
Administrative Agent shall distribute any such payments received by it for the
account of any other person to the appropriate recipient promptly following
receipt thereof. If any payment under any Loan Document shall be due on a day
that is not a Business Day, unless specified otherwise, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. All payments under each Loan Document shall be made in dollars,
except as expressly specified otherwise.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, towards payment
of interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second,
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towards payment of principal then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal then due to such
parties.
(c) Subject to the terms of the Intercreditor Agreement, if any
Lender shall, by exercising any right of setoff or counterclaim or otherwise
(including by exercise of its rights under Section 9.1 of the Security
Agreement), obtain payment in respect of any principal of or interest on any of
Loans resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Loans and accrued interest thereon than the proportion
received by any other Lender, then the Lender receiving such greater proportion
shall purchase (for cash at face value) participations in the Loans of other
Lenders to the extent necessary so that the benefit of all such payments shall
be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Loans; provided that (i)
if any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by Borrower pursuant to and in accordance with the express terms of
this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to Borrower or any of its Subsidiaries or Affiliates (as
to which the provisions of this paragraph shall apply). Each Loan Party consents
to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Loan Party rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Loan Party in the amount of such participation. If
under applicable bankruptcy, insolvency or any similar law any Secured Party
receives a secured claim in lieu of a setoff or counterclaim to which this
Section 2.14(c) 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 to which the Secured Party is entitled under this Section 2.14(c) to
share in the benefits of the recovery of such secured claim.
(d) Unless the Administrative Agent shall have received notice from
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that Borrower will not make such
payment, the Administrative Agent may assume that Borrower has made such payment
on such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due. In such event, if Borrower has not in
fact made such payment, then each of the Lenders severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such
Lender with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Effective Rate and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.02(c), 2.14(d) or 11.03(d), then the Administrative
Agent may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender's obligations under such Sections
until all such unsatisfied obligations are fully paid.
SECTION 2.15 TAXES.
(a) Any and all payments by or on account of any obligation of
Borrower hereunder or under any other Loan Document shall be made without
setoff, counterclaim or other defense and free and clear of and without
deduction or withholding for any and all Indemnified Taxes; provided that if
Borrower shall be required by law to deduct any Indemnified Taxes from such
payments, then (i) the sum
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payable shall be increased as necessary so that after making all required
deductions (including deductions or withholdings applicable to additional sums
payable under this Section 2.15) the Administrative Agent or any Lender, as the
case may be, receives an amount equal to the sum it would have received had no
such deductions or withholdings been made, (ii) Borrower shall make such
deductions or withholdings and (iii) Borrower shall pay the full amount deducted
or withheld to the relevant Governmental Authority in accordance with applicable
law.
(b) In addition, Borrower shall pay any Other Taxes to each relevant
Governmental Authority in accordance with applicable law.
(c) Borrower shall indemnify the Administrative Agent and each
Lender within 10 Business Days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent
or such Lender, as the case may be, on or with respect to any payment by or on
account of any obligation of Borrower hereunder or under any other Loan Document
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section 2.15) and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. The written demand
shall include the original or a copy of a receipt issued by the relevant
Governmental Authority evidencing such payment or other evidence of such
payment, together with a certificate setting forth the amount of such
Indemnified Taxes or Other Taxes and, in reasonable detail, the calculation of
such Indemnified Taxes or Other Taxes.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes and in any event within 30 days of any such payment being due, by
Borrower to a Governmental Authority, Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) (x) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which Borrower
is located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law, such
properly completed and executed documentation prescribed by applicable law or
reasonably requested by Borrower or the Administrative Agent as will permit such
payments to be made without withholding or at a reduced rate. Each Foreign
Lender shall (i) furnish either (a) two accurate and complete originally
executed U.S. Internal Revenue Service Form W-8BEN or W-8IMY (or successor form)
or (b) an accurate and complete U.S. Internal Revenue Service Form W-8ECI (or
successor form), certifying, in either case, to such Foreign Lender's legal
entitlement to an exemption or reduction from U.S. federal withholding tax with
respect to all interest payments hereunder, and (ii) to the extent it may
lawfully do so at such times, upon reasonable request by Borrower or the
Administrative Agent, provide a new Form W-8BEN (or successor form) or Form
W-8ECI (or successor form) upon the expiration or obsolescence of any previously
delivered form to reconfirm any complete exemption from, or any entitlement to a
reduction in, U.S. federal withholding tax with respect to any interest payment
hereunder; provided that any Foreign Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code shall also furnish a "Non-Bank
Certificate" in the form of Exhibit P if it is furnishing a Form W-8BEN.
(y) Each Lender that is not a Foreign Lender (other than any such
Lender which may be treated as an exempt recipient based on the indicators
described in Treasury Regulation 1.6049-4(c)(1)(ii)) shall, to the extent
legally able to do so, provide two properly completed and duly executed
copies of U.S. Internal Revenue Service Form W-9 (or any successor or
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other applicable form) to the Borrower (with copy to the Administrative
Agent) certifying that such Lender is exempt from United States backup
withholding tax. To the extent that a form provided pursuant hereto and is
rendered obsolete or inaccurate in any material respects as result of
change in circumstances with respect to the status of a Lender, such
Lender shall, to the extent permitted by applicable law, deliver to the
Borrower and the Agent revised forms necessary to confirm or establish the
entitlement to such Lender's exemption from United States backup
withholding tax.
(f) If the Administrative Agent or a Lender (or an assignee)
determines in its reasonable discretion that it has received a refund of any
Indemnified Taxes or Other Taxes as to which it has been indemnified by Borrower
or with respect to which Borrower has paid additional amounts pursuant to this
Section 2.15, it shall pay over such refund to Borrower (but only to the extent
of indemnity payments made, or additional amounts paid, by Borrower under this
Section 2.15 with respect to the Indemnified Taxes or the Other Taxes giving
rise to such refund), net of all out-of-pocket expenses of the Administrative
Agent or such Lender (or assignee) and without interest (other than any interest
paid by the relevant Governmental Authority with respect to such refund);
provided that Borrower, upon the request of the Administrative Agent or such
Lender (or assignee), agrees to repay the amount paid over to Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender (or assignee) within a
reasonable time (not to exceed 20 days) after receipt of written notice that the
Administrative Agent or such Lender (or assignee) is required to repay such
refund to such Governmental Authority. Nothing contained in this Section 2.15(f)
shall require the Administrative Agent or any Lender (or assignee) to make
available its Tax Returns or any other information which it deems confidential
to Borrower or any other person. Notwithstanding anything to the contrary, in no
event will any Lender be required to pay any amount to Borrower the payment of
which would place such Lender in a less favorable net after-tax position than
such Lender would have been in if the additional amounts giving rise to such
refund of any Indemnified Taxes or Other Taxes had never been paid.
SECTION 2.16 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) Mitigation of Obligations. If any Lender requests compensation
under Section 2.12, or if Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant
to Section 2.15, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the reasonable judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section
2.12 or 2.15, as the case may be, in the future and (ii) would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment. A certificate setting forth such costs and expenses
in reasonable detail submitted by such Lender to the Administrative Agent shall
be conclusive absent manifest error.
(b) Replacement of Lenders. If any Lender requests compensation
under Section 2.12, or if Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant
to Section 2.15, or if any Lender defaults in its obligation to fund Loans
hereunder, then Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 11.04), all of its interests, rights and obligations under
this Agreement to an assignee selected by Borrower that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) Borrower
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shall have received the prior written consent of the Administrative Agent, which
consents shall not unreasonably be withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder (assuming for this purpose that the Loans of such Lender were being
prepaid) from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or Borrower (in the case of all other amounts) and
(iii) in the case of any such assignment resulting from a claim for compensation
under Section 2.12 or payments required to be made pursuant to Section 2.15,
such assignment will result in a material reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling Borrower to require such assignment and
delegation cease to apply.
SECTION 2.17 INTENTIONALLY OMITTED.
SECTION 2.18 INTENTIONALLY OMITTED.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each Loan Party represents and warrants to the Administrative Agent,
the Collateral Agent and each of the Lenders (with references to the Companies
being references thereto after giving effect to the Transactions unless
otherwise expressly stated) that:
SECTION 3.01 ORGANIZATION; POWERS. Each Company (a) is duly
organized and validly existing under the laws of the jurisdiction of its
organization, (b) has all requisite power and authority to carry on its business
as now conducted and to own and lease its property and (c) is qualified and in
good standing (to the extent such concept is applicable in the applicable
jurisdiction) to do business in every jurisdiction where such qualification is
required, except in such jurisdictions where the failure to so qualify or be in
good standing, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. There is no existing default
under any Organizational Document of any Company or any event which, with the
giving of notice or passage of time or both, would constitute a default by any
party thereunder.
SECTION 3.02 AUTHORIZATION; ENFORCEABILITY. The Transactions entered
or to be entered into by each Loan Party are within such Loan Party's powers and
have been duly authorized by all necessary action on the part of such Loan
Party. This Agreement has been duly executed and delivered by each Loan Party
and constitutes, and each other Loan Document to which any Loan Party is to be a
party, when executed and delivered by such Loan Party, will constitute, a legal,
valid and binding obligation of such Loan Party, enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
SECTION 3.03 NO CONFLICTS. Except as set forth on Schedule 3.03, the
Transactions (a) do not and did not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except (i) such as have been obtained or made and are in full force and effect,
(ii) filings necessary to perfect Liens created by the Loan Documents and (iii)
consents, approvals, registrations, filings, permits or actions the failure to
obtain or perform which could not reasonably be expected to result in a Material
Adverse Effect, (b) will not and did not violate the Organizational Documents of
any Company or any judgment, decree or order of any Governmental Authority, (c)
will not and did not violate or result in a default or require any consent or
approval under any indenture, agreement, Organizational Document or other
instrument binding upon any Company or its property,
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or give rise to a right thereunder to require any payment to be made by any
Company, except for violations, defaults or the creation of such rights that
could not reasonably be expected to result in a Material Adverse Effect, and (d)
will not and did not result in the creation or imposition of any Lien on any
property of any Company, except Liens created by the Loan Documents and
Permitted Liens.
SECTION 3.04 FINANCIAL STATEMENTS; PROJECTIONS.
(a) Borrower has heretofore delivered to the Lenders the
consolidated balance sheets and related statements of income, stockholders'
equity and cash flows of Borrower (i) as of and for the fiscal years ended
December 28, 2002, December 27, 2003 and January 1, 2005 audited by and
accompanied by the unqualified opinion of Ernst & Young, LLP, independent public
accountants, and (ii) as of and for the nine-month period ended September 30,
2005 and for the comparable period of the preceding fiscal years, in each case,
certified by the chief financial officer of Borrower. Such financial statements
and all financial statements delivered pursuant to Sections 5.01(a) and (b) have
been prepared in accordance with GAAP (except, in the case of Sections 5.01(b),
for the absence of notes thereto) and present fairly and accurately the
financial condition and results of operations and cash flows of Borrower as of
the dates and for the periods to which they relate. Except as set forth in such
financial statements, there are no liabilities of any Company of any kind,
whether accrued, contingent, absolute, determined, determinable or otherwise,
which could reasonably be expected to result in a Material Adverse Effect.
(b) [Intentionally Omitted].
(c) The forecasts of financial performance of Holdings and its
subsidiaries furnished to the Lenders have been prepared in good faith by
Borrower and based on assumptions believed by Borrower to reasonable.
(d) Since January 1, 2005, there has been no event, change,
circumstance or occurrence that, individually or in the aggregate, has had or
could reasonably be expected to result in a Material Adverse Effect.
SECTION 3.05 PROPERTIES.
(a) Each Company has good title to, or valid leasehold interests in,
all its property material to its business, free and clear of all Liens except
for, in the case of Collateral, Permitted Collateral Liens (which for purposes
hereof, in the case of judgment liens, shall mean judgment liens imposed or
created after the date of the initial Credit Extension) and, in the case of all
other material property, Permitted Liens and minor irregularities or
deficiencies in title that, individually or in the aggregate, do not interfere
with its ability to conduct its business as currently conducted or to utilize
such property for its intended purpose. The property of the Companies, taken as
a whole, (i) is in good operating order, condition and repair (ordinary wear and
tear excepted), except to the extent that the failure to be in such condition
could not reasonably be expected to result in a Material Adverse Effect, and
(ii) constitutes all the property which is required for the business and
operations of the Companies as presently conducted.
(b) Schedule 3.05(b) contains a true and complete list of each
interest in Real Property (i) owned by any Company as of the date hereof and
describes the type of interest therein held by such Company and (ii) leased,
subleased or otherwise occupied or utilized by any Company, as lessee,
sublessee, franchisee or licensee, as of the date hereof and describes the type
of interest therein held by such Company and whether such lease, sublease or
other instrument requires the consent of the landlord thereunder or other
parties thereto to the Transactions.
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(c) No Company has received any notice of, nor has any knowledge of,
the occurrence or pendency or contemplation of any Casualty Event occurring or
deemed to have occurred after the Effective Date affecting all or any portion of
its property (i) with respect to which it has not applied the Net Cash Proceeds
thereof in accordance with Section 2.10(e) hereof or (ii) which Casualty Event
could reasonably be expected to have a Material Adverse Effect (any Casualty
Event of the type described in clause (ii), a "MATERIAL CASUALTY EVENT"). On and
as of the Effective Date, no Company has received any notice of, nor has any
knowledge of, the occurrence or pendency or contemplation of any Casualty Event
affecting all or any portion of its property. No Mortgage encumbers improved
Real Property that is located in an area that has been identified by the
Secretary of Housing and Urban Development as an area having special flood
hazards within the meaning of the National Flood Insurance Act of 1968 unless
flood insurance available under such Act has been obtained in accordance with
Section 5.04.
(d) Each Company owns or has rights to use all of the Collateral and
all rights with respect to any of the foregoing used in, necessary for or
material to each Company's business as currently conducted. The use by each
Company of such Collateral and all such rights with respect to the foregoing do
not infringe on the rights of any person other than such infringement which
could not, individually or in the aggregate, reasonably be expected to result in
a Material Adverse Effect. No claim has been made and remains outstanding that
any Company's use of any Collateral does or may violate the rights of any third
party that could, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect.
(e) The Equipment of each Company is in good repair, working order
and condition, reasonable wear and tear excepted. Each Company shall cause the
Equipment to be maintained and preserved in good repair, working order and
condition, reasonable wear and tear excepted, and shall as quickly as
commercially practicable make or cause to be made all repairs, replacements and
other improvements which are necessary or appropriate in the conduct of each
Company's business.
SECTION 3.06 INTELLECTUAL PROPERTY.
(a) Ownership/No Claims. Each Loan Party owns, or is licensed to
use, all patents, patent applications, trademarks, trade names, servicemarks,
copyrights, technology, trade secrets, proprietary information, domain names,
know-how and processes necessary for the conduct of its business as currently
conducted (the "INTELLECTUAL PROPERTY"), except for those the failure to own or
license which, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No claim has been asserted and
is pending by any person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such Intellectual
Property, nor does any Loan Party know of any valid basis for any such claim
that could reasonably be expected to result in a Material Adverse Effect. The
use of such Intellectual Property by each Loan Party does not infringe the
rights of any person, except for such claims and infringements that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
(b) Registrations. Except pursuant to licenses and other user
agreements entered into by each Loan Party in the ordinary course of business
that are listed in Schedules 14(a) and 14(b) to the Perfection Certificate, on
and as of the date hereof (i) each Loan Party owns and possesses the right to
use, and has done nothing to authorize or enable any other person to use, any
copyright, patent or trademark (as such terms are defined in the Security
Agreement) listed in Schedules 13(a) and 13(b) to the Perfection Certificate and
(ii) all registrations listed in Schedules 13(a) and 13(b) to the Perfection
Certificate are valid and in full force and effect.
(c) No Violations or Proceedings. To each Loan Party's knowledge, on
and as of the date hereof, (i) there is no material violation by others of any
right of such Loan Party with respect to any
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copyright, patent or trademark listed in Schedules 13(a) and 13(b) to the
Perfection Certificate, respectively, pledged by it under the name of such Loan
Party, (ii) such Loan Party is not infringing upon any copyright, patent or
trademark of any other person other than such infringement that, individually or
in the aggregate, could not reasonably be expected to materially adversely
affect the value or utility of the Intellectual Property or any portion thereof
material to the use and operation of the Collateral, and (iii) no proceedings
have been instituted or are pending against such Loan Party or threatened, and
no claim against such Loan Party has been received by such Loan Party, alleging
any such violation, except as may be set forth in Schedule 3.06(c).
SECTION 3.07 EQUITY INTERESTS AND SUBSIDIARIES.
(a) Schedule 3.07(a) sets forth a list of (i) all the Subsidiaries
of Holdings and their jurisdiction of organization as of the Effective Date and
(ii) the number of each class of its Equity Interests authorized, and the number
outstanding, on the Effective Date and the number of shares covered by all
outstanding options, warrants, rights of conversion or purchase and similar
rights at the Effective Date, respectively. All Equity Interests of each Company
are duly and validly issued and are fully paid and non-assessable, and, other
than the Equity Interests of Borrower and Holdings, are owned by Borrower,
directly or indirectly through Wholly Owned Subsidiaries. All Equity Interests
of PGT Industries are owned directly by Holdings (other than Equity Interests
issued in connection with a Qualified Contribution Transaction, of which there
are none on the Effective Date). Each Loan Party is the record and beneficial
owner of, and has good and marketable title to, the Equity Interests pledged by
it under the Security Agreement, free of any and all Liens, rights or claims of
other persons, except the security interest created by the Security Documents,
and the security interest created by the First Lien Security Documents, and
there are no outstanding warrants, options or other rights to purchase, or
shareholder, voting trust or similar agreements outstanding with respect to, or
property that is convertible into, or that requires the issuance or sale of, any
such Equity Interests.
(b) No consent of any person including any other general or limited
partner, any other member of a limited liability company, any other shareholder
or any other trust beneficiary is necessary or reasonably desirable (from the
perspective of a secured party) in connection with the creation, perfection or
priority of the security interests of the Collateral Agent in any Equity
Interests pledged to the Collateral Agent for the benefit of the Secured Parties
under the Security Agreement as Second Priority Liens or the exercise by the
Collateral Agent of the voting or other rights provided for in the Security
Agreement or the exercise of remedies in respect thereof.
(c) An accurate organization chart, showing the ownership structure
of Holdings, Borrower and each Subsidiary on the Effective Date, and after
giving effect to the Transactions, is set forth on Schedule 3.07(c).
SECTION 3.08 LITIGATION; COMPLIANCE WITH LAWS.
(a) There are no actions, suits or proceedings at law or in equity
by or before any Governmental Authority now pending or, to the knowledge of any
Company, threatened against or affecting any Company or any business, property
or rights of any Company (i) that involve any Loan Document or any of the
Transactions or (ii) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect.
(b) Except for matters covered by Section 3.18, no Company or any of
its property is in violation of, nor will the continued operation of its
property as currently conducted violate, any Requirements of Law (including any
zoning or building ordinance, code or approval or any building per-
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mits) or any restrictions of record or agreements affecting any Company's Real
Property or is in default with respect to any judgment, writ, injunction,
decree, rule or order of any Governmental Authority, where such violation or
default, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.09 AGREEMENTS.
(a) No Company is a party to any agreement or instrument or subject
to any corporate or other constitutional restriction that has resulted or could
reasonably be expected to result in a Material Adverse Effect.
(b) No Company is in default in any manner under any provision of
any indenture or other agreement or instrument evidencing Indebtedness, or any
other agreement or instrument to which it is a party or by which it or any of
its property is or may be bound, where such default could reasonably be expected
to result in a Material Adverse Effect, and no condition exists which, with the
giving of notice or the lapse of time or both, would constitute such a default.
(c) Schedule 3.09(c) accurately and completely lists all material
agreements (other than leases of Real Property set forth on Schedule 3.05(b)) to
which any Company is a party which are in effect on the date hereof in
connection with the operation of the business conducted thereby and Borrower has
delivered to the Administrative Agent, upon request, complete and correct copies
of all such material agreements, including any amendments, supplements or
modifications with respect thereto, and all such agreements are in full force
and effect.
SECTION 3.10 FEDERAL RESERVE REGULATIONS.
(a) No Company is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of buying or
carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately, for
any purpose that entails a violation of, or that is inconsistent with, the
provisions of the regulations of the Board, including Regulation T, U or X. The
pledge of the Securities Collateral pursuant to the Security Agreement does not
violate such regulations.
SECTION 3.11 INVESTMENT COMPANY ACT. No Company is an "investment
company" or a company "controlled" by an "investment company," as defined in, or
subject to regulation under, the Investment Company Act of 1940, as amended.
SECTION 3.12 USE OF PROCEEDS. Borrower will use the proceeds from
borrowings of the Loans to make the 2006 Dividend and pay related fees and
expenses on the Effective Date and for working capital and general corporate
purposes.
SECTION 3.13 TAXES. Each Company has (a) timely filed or caused to
be timely filed all federal Tax Returns and all material state, local and
foreign Tax Returns or materials required to have been filed by it and all such
Tax Returns are true and correct in all material respects and (b) duly and
timely paid or caused to be duly and timely paid all Taxes (whether or not shown
on any Tax Return) due and payable by it and all assessments received by it,
except Taxes (i) that are being contested in good faith by appropriate
proceedings and for which such Company has set aside on its books adequate
reserves in accordance with GAAP or (ii) which could not, individually or in the
aggregate, have a Material Adverse Effect. Each Company has made adequate
provision in accordance with GAAP for all Taxes not yet due and payable. Each
Company is unaware of any proposed or pending tax assessments, deficiencies
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or audits that could be reasonably expected to, individually or in the
aggregate, result in a Material Adverse Effect. No Company has ever been a party
to any understanding or arrangement constituting a "tax shelter" within the
meaning of Section 6111(c), Section 6111(d) or Section 6662(d)(2)(C)(iii) of the
Code, or has ever "participated" in a "reportable transaction" within the
meaning of Treasury Regulation Section 1.6011-4, except as could not be
reasonably expected to, individually or in the aggregate, result in a Material
Adverse Effect.
SECTION 3.14 NO MATERIAL MISSTATEMENTS. No written information,
report, financial statement, certificate, Borrowing Request, exhibit or schedule
furnished by or on behalf of any Company to the Administrative Agent or any
Lender in connection with the negotiation of any Loan Document or included
therein or delivered pursuant thereto, taken as a whole, contained or contains
any material misstatement of fact or omitted or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were or are made, not misleading as of the date such
information is dated or certified; provided that to the extent any such
information, report, financial statement, exhibit or schedule was based upon or
constitutes a forecast or projection, each Company represents only that it acted
in good faith and utilized reasonable assumptions and due care in the
preparation of such information, report, financial statement, exhibit or
schedule.
SECTION 3.15 LABOR MATTERS. As of the date hereof and the Effective
Date, there are no strikes, lockouts or slowdowns against any Company pending
or, to the knowledge of any Company, threatened. The hours worked by and
payments made to employees of any Company have not been in violation of the Fair
Labor Standards Act of 1938, as amended, or any other applicable federal, state,
local or foreign law dealing with such matters in any manner which could
reasonably be expected to result in a Material Adverse Effect. All payments due
from any Company, or for which any claim may be made against any Company, on
account of wages and employee health and welfare insurance and other benefits,
have been paid or accrued as a liability on the books of such Company except
where the failure to do so could not reasonably be expected to result in a
Material Adverse Effect. The consummation of the Transactions will not give rise
to any right of termination or right of renegotiation on the part of any union
under any collective bargaining agreement to which any Company is bound.
SECTION 3.16 SOLVENCY. Immediately after the consummation of the
Transaction to occur on the Effective Date and immediately following the making
of each Loan and after giving effect to the application of the proceeds of each
Loan, (a) the fair value of the properties of each Loan Party (individually and
on a consolidated basis with its Subsidiaries) did and will exceed its debts and
liabilities, subordinated, contingent or otherwise; (b) the present fair
saleable value of the property of each Loan Party (individually and on a
consolidated basis with its Subsidiaries) was and will be greater than the
amount that will be required to pay the probable liability of its debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) each Loan Party (individually
and on a consolidated basis with its Subsidiaries) was and will be able to pay
its debts and liabilities, subordinated, contingent or otherwise, as such debts
and liabilities become absolute and matured; and (d) each Loan Party
(individually and on a consolidated basis with its Subsidiaries) did not and
will not have unreasonably small capital with which to conduct its business in
which it is engaged as such business is now conducted and is proposed to be
conducted following the Effective Date.
SECTION 3.17 EMPLOYEE BENEFIT PLANS. Each Company and its ERISA
Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the Code and the regulations and published
interpretations thereunder. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events,
could reasonably be expected to result in a Material Adverse Effect. The present
value of all accumulated benefit obligations of all underfunded Plans (based on
the assumptions used for purposes of Statement of Financial Accounting ▇▇▇▇-
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dards No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than $250,000 the fair market value of
the property of all such underfunded Plans. Using actuarial assumptions and
computation methods consistent with subpart I of subtitle E of Title IV of
ERISA, the aggregate liabilities of each Company or its ERISA Affiliates to all
Multiemployer Plans in the event of a complete withdrawal therefrom, as of the
close of the most recent fiscal year of each such Multiemployer Plan, could not
reasonably be expected to result in a Material Adverse Effect. The Borrower and
its Subsidiaries do not maintain or contribute to any plan, program, policy,
arrangement or agreement with respect to employees (or former employees)
employed outside the United States.
SECTION 3.18 ENVIRONMENTAL MATTERS.
(a) Except as set forth in Schedule 3.18 and except as, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect:
(i) The Companies and their businesses, operations and Real Property
are and in the last six years have been in compliance with, and the
Companies have no liability under, Environmental Law;
(ii) The Companies have obtained all Environmental Permits required
for the conduct of their businesses and operations, and the ownership,
operation and use of their property, under Environmental Law, all such
Environmental Permits are valid and in good standing and, under the
currently effective business plan of the Companies, no expenditures or
operational adjustments will be required in order to renew or modify such
Environmental Permits during the next five years, the failure of which to
obtain could reasonably be expected to have a Material Adverse Effect;
(iii) There has been no Release or threatened Release of Hazardous
Material on, at, under or from any Real Property or facility presently or
formerly owned, leased or operated by the Companies or their predecessors
in interest that could result in liability by the Companies under
Environmental Law;
(iv) There is no Environmental Claim pending or, to the knowledge of
the Companies, threatened against the Companies, or relating to the Real
Property currently or formerly owned, leased or operated by the Companies
or relating to the operations of the Companies, and there are no actions,
activities, circumstances, conditions, events or incidents that could form
the basis of such an Environmental Claim; and
(v) No person with an indemnity or contribution obligation to the
Companies relating to compliance with or liability under Environmental Law
is in default with respect to such obligation.
(b) Except as set forth in Schedule 3.18:
(i) Except where the failure to do so could not reasonably be
expected to result in a Material Adverse Effect, no Company is obligated
to perform any action or otherwise incur any expense under Environmental
Law pursuant to any order, decree, judgment or agreement by which it is
bound or has assumed by contract or agreement and no Company is conducting
or financing any Response pursuant to any Environmental Law with respect
to any Real Property or any other location;
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(ii) No Real Property or facility owned, operated or leased by the
Companies and, to the knowledge of the Companies, no Real Property or
facility formerly owned, operated or leased by the Companies or any of
their predecessors in interest is (i) listed or proposed for listing on
the National Priorities List promulgated pursuant to CERCLA or (ii) listed
on the Comprehensive Environmental Response, Compensation and Liability
Information System promulgated pursuant to CERCLA or (iii) included on any
similar list maintained by any Governmental Authority including any such
list relating to petroleum;
(iii) No Lien has been recorded or, to the knowledge of any Company,
threatened under any Environmental Law with respect to any Real Property
or property of the Companies;
(iv) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby will not require
any notification, registration, filing, reporting, disclosure,
investigation, remediation or cleanup pursuant to any Governmental Real
Property Disclosure Requirements or any other Environmental Law; and
(v) The Companies have made available to the Lenders all material
records and files in the possession, custody or control of, or otherwise
reasonably available to, the Companies concerning compliance with or
liability under Environmental Law, including those concerning the
existence of Hazardous Material at Real Property or facilities currently
or formerly owned, operated, leased or used by the Companies.
SECTION 3.19 INSURANCE. Schedule 3.19 sets forth a true, complete
and correct description of all insurance maintained by each Company as the
Effective Date. All insurance maintained by the Companies is in full force and
effect, all premiums have been duly paid, no Company has received notice of
violation or cancellation thereof, the Premises, and the use, occupancy and
operation thereof, comply in all material respects with all Insurance
Requirements, and there exists no default under any Insurance Requirement. Each
Company has insurance in such amounts and covering such risks and liabilities as
are customary for companies of a similar size engaged in similar businesses in
similar locations.
SECTION 3.20 SECURITY DOCUMENTS.
(a) The Security Agreement is effective to create in favor of the
Collateral Agent for the benefit of the Secured Parties, legal, valid and
enforceable Liens on, and security interests in, the Security Agreement
Collateral of the Security Agreement and, when (i) the financing statements and
other filings in appropriate form have been filed in the offices specified on
Schedule 6 to the Perfection Certificate and (ii) upon the taking of possession
or control by the Collateral Agent of the Security Agreement Collateral with
respect to which a security interest may be perfected only by possession or
control (which possession or control shall be given to the Collateral Agent to
the extent possession or control by the Collateral Agent is required by the
Security Agreement), the Liens created by the Security Agreement constitute
fully perfected Second Priority Liens (subject to any Permitted Collateral
Liens) on, and security interests in, all right, title and interest of the
grantors thereunder in the Security Agreement Collateral (other than the
Security Agreement Collateral set forth on Schedule 3.20(a) in which a security
interest cannot be perfected under the UCC as in effect at the relevant time in
the relevant jurisdiction), in each case subject to no Liens other than
Permitted Collateral Liens. Prior to the Discharge of First Lien Obligations,
the representations and warranties made in this Section 3.20(a)(ii), delivery of
such Collateral to the First Lien Collateral Agent shall be deemed delivery to
the Collateral Agent.
(b) When the Security Agreement or a short form thereof is filed in
the United States Patent and Trademark Office and the United States Copyright
Office, the Liens created by the Security
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Agreement shall constitute fully perfected Second Priority Liens (subject to any
Permitted Collateral Liens) on, and security interests in, all right, title and
interest of the grantors thereunder in the Intellectual Property Collateral (as
defined in the Security Agreement), in each case subject to no Liens other than
Permitted Collateral Liens.
(c) Each Mortgage is effective to create, in favor of the Collateral
Agent, for its benefit and the benefit of the Secured Parties, legal, valid and
enforceable Second Priority Liens (subject to any Permitted Collateral Liens)
on, and security interests in, all of the Loan Parties' right, title and
interest in and to the Mortgaged Properties thereunder and the proceeds thereof,
subject only to Permitted Collateral Liens or other Liens acceptable to the
Collateral Agent, and when the Mortgages are filed in the offices specified on
Schedule 1.01(a) (or, in the case of any Mortgage executed and delivered after
the date thereof in accordance with the provisions of Sections 5.11 and 5.12,
when such Mortgage is filed in the offices specified in the local counsel
opinion delivered with respect thereto in accordance with the provisions of
Sections 5.11 and 5.12), the Mortgages shall constitute fully perfected Second
Priority Liens on, and security interests in, all right, title and interest of
the Loan Parties in the Mortgaged Properties and the proceeds thereof, in each
case prior and superior in right to any other person, other than Liens permitted
by such Mortgage.
(d) Each Security Document delivered pursuant to Sections 5.11 and
5.12 will, upon execution and delivery thereof, be effective to create in favor
of the Collateral Agent, for the benefit of the Secured Parties, legal, valid
and enforceable Second Priority Liens (subject to any Permitted Collateral
Liens) on, and security interests in, all of the Loan Parties' right, title and
interest in and to the Collateral thereunder, and when all appropriate filings
or recordings are made in the appropriate offices as may be required under
applicable law, such Security Document will constitute fully perfected Second
Priority Liens (subject to any Permitted Collateral Liens) on, and security
interests in, all right, title and interest of the Loan Parties in such
Collateral other than Collateral of the type listed on Schedule 3.20(a), in each
case subject to no Liens other than the applicable Permitted Collateral Liens.
SECTION 3.21 [INTENTIONALLY OMITTED].
SECTION 3.22 ANTI-TERRORISM LAW.
(a) No Loan Party and, to the knowledge of the Loan Parties, none of
its Affiliates is in violation of any laws relating to terrorism or money
laundering ("ANTI-TERRORISM LAWS"), including Executive Order No. 13224 on
Terrorist Financing, effective September 24, 2001 (the "EXECUTIVE ORDER"), and
the Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56.
(b) No Loan Party and to the knowledge of the Loan Parties, no
Affiliate or broker or other agent of any Loan Party acting or benefiting in any
capacity in connection with the Loans is any of the following:
(i) a person that is listed in the annex to, or is otherwise subject
to the provisions of, the Executive Order;
(ii) a person owned or controlled by, or acting for or on behalf of,
any person that is listed in the annex to, or is otherwise subject to the
provisions of, the Executive Order;
(iii) a person with which any Lender is prohibited from dealing or
otherwise engaging in any transaction by any Anti-Terrorism Law;
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(iv) a person that commits, threatens or conspires to commit or
supports "terrorism" as defined in the Executive Order; or
(v) a person that is named as a "specially designated national and
blocked person" on the most current list published by the U.S. Treasury
Department Office of Foreign Assets Control ("OFAC") at its official
website or any replacement website or other replacement official
publication of such list.
(c) No Loan Party and, to the knowledge of the Loan Parties, no
broker or other agent of any Loan Party acting in any capacity in connection
with the Loans (i) conducts any business or engages in making or receiving any
contribution of funds, goods or services to or for the benefit of any person
described in paragraph (b) above, (ii) deals in, or otherwise engages in any
transaction relating to, any property or interests in property blocked pursuant
to the Executive Order, or (iii) engages in or conspires to engage in any
transaction that evades or avoids, or has the purpose of evading or avoiding, or
attempts to violate, any of the prohibitions set forth in any Anti-Terrorism
Law.
SECTION 3.23 FIRST LIEN DOCUMENTS.
(a) The Loan Parties have the corporate power and authority to incur
the First Lien Loans. The First Lien Loans, when incurred, will be the legally
valid and binding obligations of the Loan Parties, enforceable against the Loan
Parties in accordance with their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
(b) The Borrower has delivered to Administrative Agent complete and
correct copies of the First Lien Documents as in effect on the Effective Date.
Subject to the qualifications set forth therein, each of the representations and
warranties given by any Loan Party in the First Lien Credit Agreement and the
First Lien Documents is true and correct in all material respects as of the
Effective Date (or as of any earlier date to which such representation and
warranty specifically relates).
ARTICLE IV
CONDITIONS TO CREDIT EXTENSIONS
SECTION 4.01 CONDITIONS TO INITIAL CREDIT EXTENSION.
(A) [Intentionally Omitted.]
(B) Effectiveness. The obligation of each Lender to fund a Credit
Extension requested to be made by it on the Effective Date
shall be subject to the prior or concurrent satisfaction of each of the
conditions precedent set forth in this Section 4.01(B).
(a) Loan Documents. All legal matters incident to this Agreement,
the Credit Extensions hereunder and the other Loan Documents shall be
satisfactory to the Lenders and to the Administrative Agent and there
shall have been delivered to the Administrative Agent an executed
counterpart of each of this Agreement, the other Loan Documents and the
Perfection Certificate.
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(b) Corporate Documents. The Administrative Agent shall have
received:
(i) a certificate of the secretary or assistant secretary of each
Loan Party dated the Effective Date, certifying (A) that attached thereto
is a true and complete copy of each Organizational Document of such Loan
Party certified (to the extent applicable) as of a recent date by the
Secretary of State of the state of its organization, (B) that attached
thereto is a true and complete copy of resolutions duly adopted by the
Board of Directors of such Loan Party authorizing the execution, delivery
and performance of the Loan Documents to which such person is a party and,
in the case of Borrower, the borrowings hereunder, and that such
resolutions have not been modified, rescinded or amended and are in full
force and effect and (C) as to the incumbency and specimen signature of
each officer executing any Loan Document or any other document delivered
in connection herewith on behalf of such Loan Party (together with a
certificate of another officer as to the incumbency and specimen signature
of the secretary or assistant secretary executing the certificate in this
clause (i));
(ii) a certificate as to the good standing of each Loan Party (in
so-called "long-form" if available) as of a recent date, from such
Secretary of State; and
(iii) such other documents as the Lenders or the Administrative
Agent may reasonably request.
(c) Officers' Certificate. The Administrative Agent shall have
received a certificate, dated the Effective Date and signed by the chief
executive officer and the chief financial officer of Borrower, confirming
compliance with the conditions precedent set forth in this Section 4.01(B) and
Sections 4.02(b), (c) and (d).
(d) First Lien Financing. Borrower shall have entered into the First
Lien Credit Agreement and received consent from the required lenders thereunder
and shall have received $205.0 million in gross cash proceeds from new Tranche
A-2 term loan borrowings under the First Lien Credit Agreement, in part, to
refinance the existing Tranche A-1 term loans thereunder and shall have received
commitments from revolving lenders for $30.0 million in Tranche A-1 revolver
commitments thereunder, in accordance with the terms of the First Lien Loan
Documents, without material waiver or modification thereof.
(e) [Intentionally Omitted.]
(f) Indebtedness and Minority Interests. After giving effect to the
Transactions and the other transactions contemplated hereby, no Company shall
have outstanding any Indebtedness or preferred stock other than (i) the Loans
and Credit Extensions hereunder and Indebtedness under the First Lien Credit
Agreement, (ii) the Indebtedness listed on Schedule 6.01(b) and (iii)
Indebtedness owed to Borrower or any Guarantor.
(g) Opinions of Counsel. The Administrative Agent shall have
received, on behalf of itself, the other Agents, the Arranger and the Lenders, a
favorable written opinion of (i) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
special counsel for the Loan Parties, substantially to the effect set forth in
Exhibit M-1, and (ii) each local counsel listed on Schedule 4.01(B)(g),
substantially to the effect set forth in Exhibit M-2, in each case (A) dated the
Effective Date and (B) addressed to the Agents and the Lenders.
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(h) Solvency Certificate. The Lenders shall have received a solvency
certificate in the form of Exhibit N, dated the Effective Date and signed by the
chief financial officer of Borrower not in his individual capacity but in his
capacity as an officer of Borrower.
(i) Requirements of Law. The Lenders shall be satisfied that
Holdings, its Subsidiaries and the Transactions shall be in full compliance with
all material Requirements of Law, including Regulations T, U and X of the Board,
and shall have received satisfactory evidence of such compliance reasonably
requested by them.
(j) Consents. The Lenders shall be satisfied that all requisite
Governmental Authorities and third parties shall have approved or consented to
the Transactions, and there shall be no governmental or judicial action, actual
or threatened, that has or would have, singly or in the aggregate, a reasonable
likelihood of restraining, preventing or imposing burdensome conditions on the
Transactions or the other transactions contemplated hereby.
(k) Litigation. There shall be no litigation, public or private, or
administrative proceedings, governmental investigation or other legal or
regulatory developments, actual or threatened, that, singly or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect, or could
materially and adversely affect the ability of Holdings or the ability of the
parties to consummate the financings contemplated hereby or the other
Transactions.
(l) Sources and Uses. The sources and uses of the Loans shall be as
set forth in Section 3.12.
(m) Fees. The Arranger and Administrative Agent shall have received
all Fees and other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all out-of-pocket
expenses (including the legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
special counsel to the Agents, and the fees and expenses of any local counsel,
foreign counsel, appraisers, consultants and other advisors) required to be
reimbursed or paid by Borrower hereunder or under any other Loan Document.
(n) Personal Property Requirements. The Collateral Agent:
(i) shall be satisfied that all certificates, agreements or
instruments representing or evidencing the Securities Collateral
accompanied by instruments of transfer and stock powers undated and
endorsed in blank have been delivered to the First Lien Collateral
Agent (which shall act as bailee for the Collateral Agent);
(ii) shall be satisfied that an Intercompany Note executed by
and among Holdings and each of its Subsidiaries, accompanied by an
instrument of transfer undated and endorsed in blank has been
received by the First Lien Collateral Agent (which shall act as
bailee for the Collateral Agent).
(iii) subject to Section 5.14, shall be satisfied that all
other certificates, agreements, including control agreements, or
instruments necessary to perfect the Collateral Agent's security
interest in all Chattel Paper, all Instruments, all Deposit Accounts
and all Investment Property of each Loan Party (as each such term is
defined in the Security Agreement and to the extent required by the
Security Agreement) have been delivered to the First Lien Collateral
Agent (which shall act as bailee for the Collateral Agent);
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(iv) UCC financing statements in appropriate form for filing
under the UCC, filings with the United States Patent and Trademark
Office and United States Copyright Office and such other documents
under applicable Requirements of Law in each jurisdiction as may be
necessary or appropriate or, in the opinion of the Collateral Agent,
desirable to perfect the Liens created, or purported to be created,
by the Security Documents and, with respect to all UCC financing
statements required to be filed pursuant to the Loan Documents,
evidence satisfactory to the Administrative Agent that Borrower has
retained, at its sole cost and expense, a service provider
acceptable to the Administrative Agent for the tracking of all such
financing statements and notification to the Administrative Agent,
of, among other things, the upcoming lapse or expiration thereof;
(v) certified copies of UCC, United States Patent and
Trademark Office and United States Copyright Office, tax and
judgment lien searches, bankruptcy and pending lawsuit searches or
equivalent reports or searches, each of a recent date listing all
effective financing statements, lien notices or comparable documents
that name any Loan Party as debtor and that are filed in those state
and county jurisdictions in which any property of any Loan Party is
located and the state and county jurisdictions in which any Loan
Party is organized or maintains its principal place of business and
such other searches that the Collateral Agent deems necessary or
appropriate, none of which encumber the Collateral covered or
intended to be covered by the Security Documents (other than
Permitted Collateral Liens or any other Liens acceptable to the
Collateral Agent); and
(vi) evidence acceptable to the Collateral Agent of payment or
arrangements for payment by the Loan Parties of all applicable
recording taxes, fees, charges, costs and expenses required for the
recording of the Security Documents.
(o) Real Property Requirements. The Collateral Agent shall have
received:
(i) a Mortgage encumbering each such Mortgaged Property listed
on Schedule 1.01(a) in favor of the Collateral Agents, for the
benefit of the Secured Parties, duly executed and acknowledged by
each Loan Party that is the owner of or holder of any interest in
such Mortgaged Property and otherwise, in form for recording in the
recording office of each applicable political subdivision where each
such Mortgaged Property is situated together with such certificates,
affidavits, questionnaires or returns as shall be reasonably
required in connection with the recording or filing thereof to
create a Second Priority Lien, under applicable law, in favor of the
Collateral Agent for the benefit of the Secured Parties and such
financing statements and any other instruments necessary to grant
such mortgage liens under the laws of any applicable jurisdiction,
all of which shall be in form and substance reasonably satisfactory
to the Collateral Agent;
(ii) with respect to each such Mortgaged Property, such
consents, approvals, amendments, supplements, estoppels, tenant
subordination agreements or other instruments as necessary to
consummate the Transactions or as shall reasonably be deemed
necessary by the Collateral Agent in order for the owner or holder
of the fee or leasehold interest constituting such Mortgaged
Property to grant the Lien contemplated by the Mortgage with respect
to such Mortgaged Property;
(iii) with respect to each such Mortgage, a policy of title
insurance (or marked up title insurance commitment having the effect
of a policy of title insurance) insuring the Lien of such Mortgage
as a valid Second Priority mortgage lien on the Mortgaged Prop-
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erty and fixtures described therein in favor of the Collateral Agent
for the benefit of the Secured Parties in the amount set forth on
Schedule 4.01(B)(o)(iii), which policy (or such marked up
commitment) (each, a "TITLE POLICY") shall (A) be issued by the
Title Company, (B) to the extent necessary, include such reinsurance
arrangements (with provisions for direct access, if necessary) as
shall be reasonably acceptable to the Collateral Agent, (C) contain
a "tie in" or "cluster" endorsement, if available under applicable
law (i.e., policies which insure against losses regardless of
location or allocated value of the insured property up to a stated
maximum coverage amount), (D) have been supplemented by such
endorsements (or where such endorsements are not available, opinions
of special counsel, architects or other professionals reasonably
acceptable to the Collateral Agent) as shall be reasonably requested
by the Collateral Agent (including endorsements on matters relating
to usury, first loss, last dollar, zoning, contiguity, revolving
credit, doing business, non-imputation, public road access, survey,
variable rate, environmental lien, subdivision, separate tax lot,
revolving credit and so called comprehensive coverage over covenants
and restrictions, in each case to the extent available) and (E)
contain no exceptions to title other than Permitted Liens and
exceptions acceptable to the Collateral Agent;
(iv) with respect to each such Mortgaged Property, such
affidavits, certificates, information (including financial data) and
instruments of indemnification (including a so called "gap"
indemnification) as shall be reasonably and customarily required to
induce the Title Company to issue the Title Policy/ies and
endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of
payment by Borrower of all Title Policy premiums, search and
examination charges, escrow charges and related charges, mortgage
recording taxes, fees, charges, costs and expenses required for the
recording of the Mortgages and issuance of the Title Policies
referred to above;
(vi) with respect to each Real Property or such Mortgaged
Property, copies of all Leases in which Borrower or any Subsidiary
holds the lessor's interest or other agreements relating to
possessory interests, if any. To the extent any of the foregoing
affect any Mortgaged Property, such agreement shall be subordinate
to the Liens of the Mortgage to be recorded against such Mortgaged
Property, either expressly by its terms or pursuant to a
subordination, non-disturbance and attornment agreement, and shall
otherwise be acceptable to the Collateral Agent;
(vii) with respect to each such Mortgaged Property, each
Company shall have made all notifications, registrations and
filings, to the extent required by, and in accordance with, all
Governmental Real Property Disclosure Requirements applicable to
such Mortgaged Property; and
(viii) Surveys with respect to each such Mortgaged Property.
(p) Insurance. The Administrative Agent shall have received a copy
of, or a certificate as to coverage under, the insurance policies required by
Section 5.04 and the applicable provisions of the Security Documents, each of
which shall be endorsed or otherwise amended to include a "standard" or "New
York" lender's loss payable or mortgagee endorsement (as applicable) and shall
name the Collateral Agent, on behalf of the Secured Parties, as additional
insured, in form and substance satisfactory to the Administrative Agent.
(q) [Intentionally Omitted].
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(r) Intercreditor Agreement. The Intercreditor Agreement, in form
and substance satisfactory to the Secured Parties, shall have been
executed and delivered by the parties thereto.
(s) Ratings. The Borrower shall have received secured debt ratings
on the Loans from each of ▇▇▇▇▇'▇ and S&P (which ratings need not be
monitored public ratings).
SECTION 4.02 ADDITIONAL CONDITIONS TO CREDIT EXTENSION. The
obligation of each Lender to make the initial Credit Extension shall also be
subject to, and to the satisfaction of, each of the conditions precedent set
forth below.
(a) Notice. The Administrative Agent shall have received a Borrowing
Request as required by Section 2.03.
(b) No Default. Borrower and each other Loan Party shall be in
compliance in all material respects with all the terms and provisions set
forth herein and in each other Loan Document on its part to be observed or
performed, and, at the time of and immediately after giving effect to such
Credit Extension and the application of the proceeds thereof, no Default
shall have occurred and be continuing on such date.
(c) Representations and Warranties. Each of the representations and
warranties made by any Loan Party set forth in Article III hereof or in
any other Loan Document shall be true and correct in all material respects
(except that any representation and warranty that is qualified as to
"materiality" or "Material Adverse Effect" shall be true and correct in
all respects) on and as of the date of such Credit Extension with the same
effect as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date.
(d) No Legal Bar. No order, judgment or decree of any Governmental
Authority shall purport to restrain any Lender from making any Loans to be
made by it. No injunction or other restraining order shall have been
issued, shall be pending or noticed with respect to any action, suit or
proceeding seeking to enjoin or otherwise prevent the consummation of, or
to recover any damages or obtain relief as a result of, the transactions
contemplated by this Agreement or the making of Loans hereunder.
Each of the delivery of a Borrowing Request and the acceptance by
Borrower of the proceeds of such Credit Extension shall constitute a
representation and warranty by Borrower and each other Loan Party 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
conditions contained in this Section 4.02 have been satisfied. Borrower shall
provide such information (including calculations in reasonable detail of the
covenants in Section 6.10) as the Administrative Agent may reasonably request to
confirm that the conditions in this Section 4.02 have been satisfied.
ARTICLE V
AFFIRMATIVE COVENANTS
Each Loan Party warrants, covenants and agrees with each Lender that
so long as this Agreement shall remain in effect and until the Commitments have
been terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under any Loan Document shall have been paid
in full, unless the Required Lenders shall otherwise consent in writing, each
Loan Party will, and will cause each of its Subsidiaries to:
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SECTION 5.01 FINANCIAL STATEMENTS, REPORTS, ETC. Furnish to the
Administrative Agent and each Lender:
(a) Annual Reports. As soon as available and in any event within 90
days after the end of each fiscal year, the consolidated balance sheet of
Window Holdings as of the end of such fiscal year and related consolidated
statements of income, cash flows and stockholders' equity for such fiscal
year, in comparative form with such financial statements as of the end of,
and for, the preceding fiscal year, and notes thereto, accompanied by an
opinion of Ernst & Young, LLP or other independent public accountants of
recognized national standing satisfactory to the Administrative Agent
(which opinion shall not be qualified as to scope or contain any going
concern or other qualification), stating that such financial statements
fairly present, in all material respects, the consolidated financial
condition, results of operations and cash flows of Window Holdings as of
the dates and for the periods specified in accordance with GAAP;
(b) Quarterly Reports. 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 consolidated balance sheet of Window Holdings as of the
end of such fiscal quarter and related consolidated statements of income
and cash flows for such fiscal quarter and for the then elapsed portion of
the fiscal year, in comparative form with the consolidated statements of
income and cash flows for the comparable periods in the previous fiscal
year, accompanied by a certificate of a Financial Officer stating that
such financial statements fairly present, in all material respects, the
consolidated financial condition, results of operations and cash flows of
Window Holdings as of the date and for the periods specified in accordance
with GAAP consistently applied (except for the absence of notes thereto)
and on a basis consistent with audited financial statements referred to in
clause (a) of this Section, subject to normal year-end audit adjustments;
(c) [Intentionally omitted];
(d) Financial Officer's Certificate. (i) Concurrently with any
delivery of financial statements under Section 5.01(a) or (b) above, a
Compliance Certificate certifying that no Default has occurred or, if such
a Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto; (ii)
concurrently with any delivery of financial statements under Section
5.01(a) or (b) above, a Compliance Certificate setting forth computations
in reasonable detail satisfactory to the Administrative Agent
demonstrating compliance with the covenants contained in Sections 6.07(f)
and 6.10 (including the aggregate amount of Excluded Issuances for such
period and the uses therefor) and, in the case of Section 5.01(a) above,
setting forth Borrower's calculation of Excess Cash Flow; and (iii) in the
case of Section 5.01(a) above, a report of the accounting firm opining on
or certifying such financial statements stating that in the course of its
regular audit of the financial statements of Window Holdings and its
Subsidiaries, which audit was conducted in accordance with GAAP, such
accounting firm obtained no knowledge that any Default (as it relates to
accounting matters or financial covenants) has occurred or, if in the
opinion of such accounting firm such a Default has occurred, specifying
the nature and extent thereof;
(e) Financial Officer's Certificate Regarding Collateral.
Concurrently with any delivery of financial statements under Section
5.01(a) above, a certificate of a Financial Officer setting forth the
information required pursuant to the Perfection Certificate Supplement or
confirming that there has been no change in such information since the
date of the Perfection Certificate or latest Perfection Certificate
Supplement;
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(f) Public Reports. Promptly after the same become publicly
available, copies of all periodic and other reports, proxy statements and
other materials filed by any Company with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or
distributed to holders of its Indebtedness pursuant to the terms of the
documentation governing such Indebtedness (or any trustee, agent or other
representative therefor), as the case may be;
(g) Management Letters. Promptly after the receipt thereof by any
Company, a copy of any "management letter" received by any such person
from its certified public accountants and the management's responses
thereto;
(h) Budgets. No later than 30 days after the first day of each
fiscal year of Window Holdings, a budget in form reasonably satisfactory
to the Administrative Agent (including budgeted statements of income for
Borrower's business units and sources and uses of cash and balance sheets)
prepared by Window Holdings for (i) each fiscal quarter of such fiscal
year prepared in detail and (ii) after the occurrence and during the
continuance of an Event of Default, each fiscal year in the four years
immediately following such fiscal year prepared in summary form, in each
case, of Window Holdings and its subsidiaries, with appropriate
presentation and discussion of the principal assumptions upon which such
budgets are based, accompanied by the statement of a Financial Officer of
Window Holdings to the effect that the budget of Window Holdings is a
reasonable estimate for the period covered thereby;
(i) Organization. Within 30 days after the close of each fiscal year
of Window Holdings, it shall deliver an accurate organization chart as
required by Section 3.07(c), or confirm that there are no changes to
Schedule 3.07(c);
(j) Organizational Documents. Promptly provide copies of any
Organizational Documents that have been amended or modified in accordance
with the terms hereof and deliver a copy of any notice of default given or
received by any Company under any Organizational Document within 15 days
after such Company gives or receives such notice; and
(k) Other Information. Promptly, from time to time, such other
information regarding the operations, business affairs and financial
condition of any Company, or compliance with the terms of any Loan
Document, as the Administrative Agent or any Lender may reasonably
request.
SECTION 5.02 LITIGATION AND OTHER NOTICES. Furnish to the
Administrative Agent and each Lender written notice of the following promptly
(and, in any event, within three Business Days of the occurrence thereof):
(a) any Default, specifying the nature and extent thereof and the
corrective action (if any) taken or proposed to be taken with respect
thereto;
(b) the filing or commencement of, or any written threat or notice
of intention of any person to file or commence, any action, suit,
litigation or proceeding, whether at law or in equity by or before any
Governmental Authority, (i) against any Company or any Affiliate thereof
that could reasonably be expected to result in a Material Adverse Effect
or (ii) with respect to any Loan Document;
(c) any development that has resulted in, or could reasonably be
expected to result in a Material Adverse Effect;
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(d) the occurrence of a Material Casualty Event; and
(e) (i) the incurrence of any material Lien (other than Permitted
Collateral Liens) on, or claim asserted against any of the Collateral or
(ii) the occurrence of any other event which could materially affect the
value of the Collateral.
SECTION 5.03 EXISTENCE; BUSINESSES AND PROPERTIES.
(a) Do or cause to be done all things necessary to preserve, renew
and maintain in full force and effect its legal existence, except as otherwise
expressly permitted under Section 6.05 or Section 6.06 or, in the case of any
Subsidiary, where the failure to perform such obligations, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses, permits,
privileges, franchises, authorizations, patents, copyrights, trademarks and
trade names material to the conduct of its business; maintain and operate such
business in substantially the manner in which it is presently conducted and
operated; comply with all applicable Requirements of Law (including any and all
zoning, building, Environmental Law, ordinance, code or approval or any building
permits or any restrictions of record or agreements affecting the Real Property)
and decrees and orders of any Governmental Authority, whether now in effect or
hereafter enacted, except where the failure to comply, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect; pay and perform its obligations under all Leases (except where the
failure to do so could not reasonably be expected to result in a Material
Adverse Effect) and Loan Documents; and at all times maintain, preserve and
protect all property material to the conduct of such business and keep such
property in good repair, working order and condition (other than wear and tear
occurring in the ordinary course of business) and from time to time make, or
cause to be made, all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times;
provided that nothing in this Section 5.03(b) shall prevent (i) sales of
property, consolidations or mergers by or involving any Company in accordance
with Section 6.05 or Section 6.06; (ii) the withdrawal by any Company of its
qualification as a foreign corporation in any jurisdiction where such
withdrawal, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect; or (iii) the abandonment by any Company
of any rights, franchises, licenses, trademarks, trade names, copyrights or
patents that such person reasonably determines are not useful to its business or
no longer commercially desirable.
SECTION 5.04 INSURANCE.
(a) Keep its insurable property adequately insured at all times by
financially sound and reputable insurers; maintain such other insurance, to such
extent and against such risks as is customary with companies in the same or
similar businesses operating in the same or similar locations, including
insurance with respect to Mortgaged Properties and other properties material to
the business of the Companies against such casualties and contingencies and of
such types and in such amounts with such deductibles as is customary in the case
of similar businesses operating in the same or similar locations, including (i)
physical hazard insurance on an "all risk" basis, (ii) commercial general
liability against claims for bodily injury, death or property damage covering
any and all insurable claims, (iii) explosion insurance in respect of any
boilers, machinery or similar apparatus constituting Collateral, (iv) business
interruption insurance, (v) worker's compensation insurance and such other
insurance as may be required by any Requirement of Law and (vi) such other
insurance against risks as the Administrative Agent may from time to time
reasonably require (such policies to be in such form and amounts and having such
coverage as may be reasonably satisfactory to the Administrative Agent and the
Collateral Agent); provided
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that with respect to physical hazard insurance, neither, subject to the
Intercreditor Agreement, the Collateral Agent nor the applicable Company shall
agree to the adjustment of any claim thereunder without the consent of the other
(such consent not to be unreasonably withheld or delayed); provided, further,
that no consent of any Company shall be required during an Event of Default.
(b) All such insurance shall (i) provide that no cancellation,
material reduction in amount or material change in coverage thereof shall be
effective until at least 30 days after receipt by the Collateral Agent of
written notice thereof, (ii) name the Collateral Agent as mortgagee (in the case
of property insurance) or additional insured on behalf of the Secured Parties
(in the case of liability insurance) or loss payee (in the case of property
insurance), as applicable, (iii) if reasonably requested by the Collateral
Agent, include a breach of warranty clause and (iv) be reasonably satisfactory
in all other respects to the Collateral Agent.
(c) Notify the Administrative Agent and the Collateral Agent
immediately whenever any separate insurance concurrent in form or contributing
in the event of loss with that required to be maintained under this Section 5.04
is taken out by any Company; and promptly deliver to the Administrative Agent
and the Collateral Agent a duplicate original copy of such policy or policies.
(d) With respect to each Mortgaged Property, obtain flood insurance
in such total amount as the Administrative Agent or the Required Lenders may
from time to time require, if at any time the area in which any improvements
located on any Mortgaged Property is designated a "flood hazard area" in any
Flood Insurance Rate Map published by the Federal Emergency Management Agency
(or any successor agency), and otherwise comply with the National Flood
Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as
amended from time to time.
(e) Deliver to the Administrative Agent and the Collateral Agent and
the Lenders a report of a reputable insurance broker with respect to such
insurance and such supplemental reports with respect thereto as the
Administrative Agent or the Collateral Agent may from time to time reasonably
request.
(f) No Loan Party that is an owner of Mortgaged Property shall take
any action that is reasonably likely to be the basis for termination, revocation
or denial of any insurance coverage required to be maintained under such Loan
Party's respective Mortgage or that could be the basis for a defense to any
claim under any Insurance Policy maintained in respect of the Premises, and each
Loan Party shall otherwise comply in all material respects with all Insurance
Requirements in respect of the Premises; provided that each Loan Party may, at
its own expense and after written notice to the Administrative Agent, (i)
contest the applicability or enforceability of any such Insurance Requirements
by appropriate legal proceedings, the prosecution of which does not constitute a
basis for cancellation or revocation of any insurance coverage required under
this Section 5.04 or (ii) cause the Insurance Policy containing any such
Insurance Requirement to be replaced by a new policy complying with the
provisions of this Section 5.04.
SECTION 5.05 OBLIGATIONS AND TAXES.
(a) Pay its Indebtedness and other obligations promptly and in
accordance with their terms, except where the failure to do so would not
reasonably be expected to result in a Material Adverse Effect, and pay and
discharge promptly when due all Taxes, assessments and governmental charges or
levies imposed upon it or upon its income or profits or in respect of its
property, before the same shall become delinquent or in default, as well as all
lawful claims for labor, services, materials and supplies or otherwise that, if
unpaid, might give rise to a Lien other than a Permitted Lien upon such
properties or any part thereof; provided that such payment and discharge shall
not be required with respect to any such
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Tax, assessment, charge, levy or claim so long as (i) the validity or amount
thereof shall be contested in good faith by appropriate proceedings timely
instituted and diligently conducted and the applicable Company shall have set
aside on its books adequate reserves or other appropriate provisions with
respect thereto in accordance with GAAP, (ii) such contest operates to suspend
collection of the contested obligation, Tax, assessment or charge and
enforcement of a Lien other than a Permitted Lien and (iii) in the case of
Collateral, the applicable Company shall have otherwise complied with the
Contested Collateral Lien Conditions.
(b) Timely and correctly file all material Tax Returns required to
be filed by it.
SECTION 5.06 EMPLOYEE BENEFITS. (a) Comply in all material respects
with the applicable provisions of ERISA and the Code and (b) furnish to the
Administrative Agent (x) as soon as practicable after, and in any event within 5
days after any Responsible Officer of any Company or any ERISA Affiliates of any
Company knows or has reason to know that, any ERISA Event has occurred that,
alone or together with any other ERISA Event could reasonably be expected to
result in liability of the Companies or any of their ERISA Affiliates in an
aggregate amount exceeding $500,000 or the imposition of a Lien, a statement of
a Financial Officer of Borrower setting forth details as to such ERISA Event and
the action, if any, that the Companies propose to take with respect thereto, and
(y) upon request by the Administrative Agent, copies of (i) each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) filed by any
Company or any ERISA Affiliate with the Internal Revenue Service with respect to
each Plan; (ii) the most recent actuarial valuation report for each Plan; (iii)
all notices received by any Company or any ERISA Affiliate from a Multiemployer
Plan sponsor or any governmental agency concerning an ERISA Event; and (iv) such
other documents or governmental reports or filings relating to any Plan (or
employee benefit plan sponsored or contributed to by any Company) as the
Administrative Agent shall reasonably request.
SECTION 5.07 MAINTAINING RECORDS; ACCESS TO PROPERTIES AND
INSPECTIONS; ANNUAL MEETINGS.
(a) Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all Requirements of Law are made of
all dealings and transactions in relation to its business and activities. Each
Company will permit any representatives designated by the Administrative Agent
or any Lender to visit and inspect the financial records and the property of
such Company at reasonable times and as often as reasonably requested and to
make extracts from and copies of such financial records, and permit any
representatives designated by the Administrative Agent or any Lender to discuss
the affairs, finances, accounts and condition of any Company with the officers
and employees thereof and advisors therefor (including independent accountants).
(b) Within 120 days after the close of each fiscal year of the
Companies, at the request of the Administrative Agent or Required Lenders, hold
a meeting (at a mutually agreeable location and time or, at the option of the
Administrative Agent, by conference call) with all Lenders who choose to attend
such meeting at which meeting shall be reviewed the financial results of the
previous fiscal year and the financial condition of the Companies and the
budgets presented for the current fiscal year of the Companies.
SECTION 5.08 USE OF PROCEEDS. Use the proceeds of the Loans only for
the purposes set forth in Section 3.12.
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SECTION 5.09 COMPLIANCE WITH ENVIRONMENTAL LAWS; ENVIRONMENTAL
REPORTS.
(a) Comply, and cause all lessees and other persons occupying Real
Property owned, operated or leased by any Company to comply, in all material
respects with all Environmental Laws and Environmental Permits applicable to its
operations and Real Property; obtain and renew all material Environmental
Permits applicable to its operations and Real Property; and conduct all
Responses required by, and in accordance with, Environmental Laws; provided that
no Company shall be required to undertake any Response to the extent that its
obligation to do so is being contested in good faith and by proper proceedings
and appropriate reserves are being maintained with respect to such circumstances
in accordance with GAAP.
(b) If a Default caused by reason of a breach of Section 3.18 or
Section 5.09(a) shall have occurred and be continuing for more than 20 days
without the Companies commencing activities reasonably likely to cure such
Default, at the written request of the Administrative Agent or the Required
Lenders through the Administrative Agent, provide to the Lenders within 45 days
after such request, at the expense of Borrower, an environmental assessment
report regarding the matters which are the subject of such Default, including,
where appropriate, any soil and/or groundwater sampling, prepared by an
environmental consulting firm and, in the form and substance, reasonably
acceptable to the Administrative Agent and indicating the presence or absence of
Hazardous Materials and the estimated cost of any compliance or Response to
address them.
(c) Each Loan Party that is an owner of Mortgaged Property shall not
install nor permit to be installed in the Mortgaged Property any Hazardous
Materials, other than in compliance with applicable Environmental Laws.
SECTION 5.10 INTEREST RATE PROTECTION. No later than the 60th day
after the Effective Date, Borrower shall enter into, and for a minimum of two
years thereafter maintain, Hedging Agreements with terms and conditions
reasonably acceptable to the Administrative Agent that result in at least 40% of
the aggregate principal amount of the outstanding Loans and First Lien Loans
being effectively subject to a fixed or maximum interest rate reasonably
acceptable to the Administrative Agent.
SECTION 5.11 ADDITIONAL COLLATERAL; ADDITIONAL GUARANTORS.
(a) Subject to the terms of the Intercreditor Agreement and this
Section 5.11, with respect to any property acquired after the Effective Date by
any Loan Party that is intended to be subject to the Lien created by any of the
Security Documents but is not so subject (but, in any event, excluding any
Equity Interest of a Foreign Subsidiary created, acquired or established in
accordance with a waiver received under Section 6.14 not required to be pledged
pursuant to the last sentence of Section 5.11(b)), promptly (and in any event
within 30 days after the acquisition thereof) (i) execute and deliver to the
Administrative Agent and the Collateral Agent such amendments or supplements to
the relevant Security Documents or such other documents as the Administrative
Agent or the Collateral Agent shall deem necessary or advisable to grant to the
Collateral Agent, for its benefit and for the benefit of the other applicable
Secured Parties, a Second Priority Lien (subject to any Permitted Collateral
Liens) on such property subject to no Liens other than Permitted Collateral
Liens, and (ii) take all actions necessary to cause each such Lien to be duly
perfected to the extent required by such Security Document in accordance with
all applicable Requirements of Law, including the filing of financing statements
in such jurisdictions as may be reasonably requested by the Administrative
Agent. Borrower shall otherwise take such actions and execute and/or deliver to
the Collateral Agent such documents as the Administrative Agent or the
Collateral Agent shall require to confirm the validity, perfection and priority
of the Lien of the Security Documents against such after-acquired properties.
Prior to the Discharge of First Lien Obligations, (i) the requirements of this
Section 5.11(a) to deliver to the Collateral Agent any Collateral the security
interest in
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which may be perfected only by possession or control by a single person shall be
deemed satisfied by the delivery of possession or control of such Collateral to
the First Lien Collateral Agent (as provided in the Intercreditor Agreement) and
(ii) Holdings and the Borrower shall, and shall cause each Subsidiary to, comply
with the requirements of this Section 5.11(a) with respect to the Obligations
hereunder only to the same extent that Holdings, the Borrower and such
Subsidiaries are required to comply with provisions analogous to this Section
5.11(a) with respect to the First Lien Obligations in the First Lien Credit
Agreement.
(b) Subject to the terms of the Intercreditor Agreement, with
respect to any person that is or becomes a Subsidiary after the Effective Date,
promptly (and in any event within 30 days after such person becomes a
Subsidiary) (i) deliver to the Collateral Agent the certificates, if any,
representing all of the Equity Interests of such Subsidiary owned by a Loan
Party, together with undated stock powers or other appropriate instruments of
transfer executed and delivered in blank by a duly authorized officer of the
holder(s) of such Equity Interests, and all intercompany notes owing from such
Subsidiary to any Loan Party together with instruments of transfer executed and
delivered in blank by a duly authorized officer of such Loan Party and (ii)
cause such new Subsidiary (A) to execute a Subsidiary Joinder Agreement or such
comparable documentation to become a Subsidiary Guarantor and a joinder
agreement to the Security Agreement, substantially in the form annexed thereto
or, in the case of a Foreign Subsidiary, created, acquired or established in
accordance with a waiver received under Section 6.14, execute a security
agreement compatible with the laws of such Foreign Subsidiary's jurisdiction in
form and substance reasonably satisfactory to the Collateral Agent, and (B) to
take all actions necessary or advisable in the opinion of the Administrative
Agent or the Collateral Agent to cause the Lien created by the applicable
Security Agreement to be duly perfected to the extent required by such agreement
in accordance with all applicable Requirements of Law, including the filing of
financing statements in such jurisdictions as may be reasonably requested by the
Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1)
the Equity Interests required to be delivered to the Collateral Agent pursuant
to clause (i) of this Section 5.11(b) shall not include any Equity Interests of
a Foreign Subsidiary created or established in accordance with a waiver received
under Section 6.14 after the Effective Date and (2) no such Foreign Subsidiary
shall be required to take the actions specified in clause (ii) of this Section
5.11(b), if, in the case of either clause (1) or (2), doing so would constitute
an investment of earnings in United States property under Section 956 (or a
successor provision) of the Code, which investment would or could reasonably be
expected to trigger a material increase in the net income of a United States
shareholder of such Subsidiary pursuant to Section 951 (or a successor
provision) of the Code, as reasonably determined by the Administrative Agent;
provided that this exception shall not apply to (A) Voting Stock of any
Subsidiary which is a first tier controlled foreign corporation (as defined in
Section 957(a) of the Code) representing 66% of the total voting power of all
outstanding Voting Stock of such Subsidiary and (B) 100% of the Equity Interests
not constituting Voting Stock of any such Subsidiary, except that any such
Equity Interests constituting "stock entitled to vote" within the meaning of
Treasury Regulation Section 1.956 2(c)(2) shall be treated as Voting Stock for
purposes of this Section 5.11(b). Prior to the Discharge of First Lien
Obligations, (i) the requirements of this Section 5.11(b) to deliver to the
Collateral Agent any Collateral the security interest in which may be perfected
only by possession or control by a single person shall be deemed satisfied by
the delivery of possession or control of such Collateral to the First Lien
Collateral Agent (as provided in the Intercreditor Agreement) and (ii) Holdings
and the Borrower shall, and shall cause each Subsidiary to, comply with the
requirements of this Section 5.11(b) with respect to the Obligations hereunder
only to the same extent that Holdings, the Borrower and such Subsidiaries are
required to comply with provisions analogous to this Section 5.11(b) with
respect to the First Lien Obligations in the First Lien Credit Agreement.
(c) Subject to the terms of the Intercreditor Agreement, promptly
grant to the Collateral Agent, within 60 days of the acquisition thereof, a
security interest in and Mortgage on (i) each Real
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Property owned in fee by such Loan Party as is acquired by such Loan Party after
the Effective Date and that, together with any improvements thereon,
individually has a fair market value of at least $1.0 million, and (ii) unless
the Collateral Agent otherwise consents, each leased Real Property of such Loan
Party which lease individually has a fair market value of at least $1.0 million,
in each case, as additional security for the Obligations (unless the subject
property is already mortgaged to a third party to the extent permitted by
Section 6.02). Such Mortgages shall be granted pursuant to documentation
reasonably satisfactory in form and substance to the Administrative Agent and
the Collateral Agent and shall constitute valid and enforceable perfected Second
Priority Liens subject only to Permitted Collateral Liens or other Liens
acceptable to the Collateral Agent. The Mortgages or instruments related thereto
shall be duly recorded or filed in such manner and in such places as are
required by law to establish, perfect, preserve and protect the Liens in favor
of the Collateral Agent required to be granted pursuant to the Mortgages and all
taxes, fees and other charges payable in connection therewith shall be paid in
full. Subject to the terms of the Intercreditor Agreement, such Loan Party shall
otherwise take such actions and execute and/or deliver to the Collateral Agent
such documents as the Administrative Agent or the Collateral Agent shall require
to confirm the validity, perfection and priority of the Lien of any existing
Mortgage or new Mortgage against such after-acquired Real Property (including a
Title Policy, a Survey and local counsel opinion (in form and substance
reasonably satisfactory to the Administrative Agent and the Collateral Agent) in
respect of such Mortgage). Prior to the Discharge of First Lien Obligations, (i)
the requirements of this Section 5.11(c) to deliver to the Collateral Agent any
Collateral the security interest in which may be perfected only by possession or
control by a single person shall be deemed satisfied by the delivery of
possession or control of such Collateral to the First Lien Collateral Agent (as
provided in the Intercreditor Agreement) and (ii) Holdings and the Borrower
shall, and shall cause each Subsidiary to, comply with the requirements of this
Section 5.11(c) with respect to the Obligations hereunder only to the same
extent that Holdings, the Borrower and such Subsidiaries are required to comply
with provisions analogous to this Section 5.11(c) with respect to the First Lien
Obligations in the First Lien Credit Agreement.
(d) Subject to the terms of the Intercreditor Agreement, with
respect to any person that becomes an Additional Equity Partner, concurrently
with the consummation of the sale or issuance of the Equity Interests, the
Additional Equity Partner shall (i) deliver to the Collateral Agent the
certificates representing all of the Equity Interests of the Company acquired by
such Additional Equity Partner, together with undated stock powers or other
appropriate instruments of transfer executed and delivered in blank by a duly
authorized officer of the holder(s) of such Equity Interests, and all
intercompany notes owing from such Additional Equity Partner to any Loan Party
together with instruments of transfer executed and delivered in blank by a duly
authorized officer of such Loan Party and (ii) execute a joinder agreement to
the applicable Security Agreement, substantially in the form annexed thereto and
to take all actions necessary or advisable in the opinion of the Administrative
Agent or the Collateral Agent to cause the Lien created by the applicable
Security Agreement to be duly perfected to the extent required by such agreement
in accordance with all applicable Requirements of Law, including the filing of
financing statements in such jurisdictions as may be reasonably requested by the
Administrative Agent or the Collateral Agent. Prior to the Discharge of First
Lien Obligations, (i) the requirements of this Section 5.11(d) to deliver to the
Collateral Agent any Collateral the security interest in which may be perfected
only by possession or control by a single person shall be deemed satisfied by
the delivery of possession or control of such Collateral to the First Lien
Collateral Agent (as provided in the Intercreditor Agreement) and (ii) Holdings
and the Borrower shall, and shall cause each Subsidiary to, comply with the
requirements of this Section 5.11(d) with respect to the Obligations hereunder
only to the same extent that Holdings, the Borrower and such Subsidiaries are
required to comply with provisions analogous to this Section 5.11(d) with
respect to the First Lien Obligations in the First Lien Credit Agreement.
SECTION 5.12 SECURITY INTERESTS; FURTHER ASSURANCES. Subject to the
terms of the Intercreditor Agreement, promptly, upon the reasonable request of
the Administrative Agent, the Col-
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lateral Agent or any Lender, at Borrower's expense, execute, acknowledge and
deliver, or cause the execution, acknowledgment and delivery of, and thereafter
register, file or record, or cause to be registered, filed or recorded, in an
appropriate governmental office, any document or instrument supplemental to or
confirmatory of the Security Documents or otherwise deemed by the Administrative
Agent or the Collateral Agent reasonably necessary or desirable for the
continued validity, perfection and priority of the Liens on the Collateral
covered thereby subject to no other Liens except as permitted by the applicable
Security Document, or obtain any consents or waivers as may be necessary or
appropriate in connection therewith. Deliver or cause to be delivered to the
Administrative Agent and the Collateral Agent from time to time such other
documentation, consents, authorizations, approvals and orders in form and
substance reasonably satisfactory to the Administrative Agent and the Collateral
Agent as the Administrative Agent and the Collateral Agent shall reasonably deem
necessary to perfect or maintain the Liens on the Collateral pursuant to the
Security Documents. Upon the exercise by the Administrative Agent, the
Collateral Agent or any Lender of any power, right, privilege or remedy pursuant
to any Loan Document which requires any consent, approval, registration,
qualification or authorization of any Governmental Authority execute and deliver
all applications, certifications, instruments and other documents and papers
that the Administrative Agent, the Collateral Agent or such Lender may require.
If the Administrative Agent, the Collateral Agent or the Required Lenders
determine that they are required by law or regulation to have appraisals
prepared in respect of the Real Property of any Loan Party constituting
Collateral, Borrower shall provide to the Administrative Agent appraisals that
satisfy the applicable requirements of the Real Estate Appraisal Reform
Amendments of FIRREA and are otherwise in form and substance satisfactory to the
Administrative Agent and the Collateral Agent.
SECTION 5.13 INFORMATION REGARDING COLLATERAL.
(a) Not effect any change (i) in any Loan Party's legal name, (ii)
in the location of any Loan Party's chief executive office, (iii) in any Loan
Party's identity or organizational structure, (iv) in any Loan Party's Federal
Taxpayer Identification Number or organizational identification number, if any,
or (v) in any Loan Party's jurisdiction of organization (in each case, including
by merging with or into any other entity, reorganizing, dissolving, liquidating,
reorganizing or organizing in any other jurisdiction), until (A) it shall have
given the Collateral Agent and the Administrative Agent, in the case of clause
(i) prior or simultaneous written notice (in the form of an Officer's
Certificate) of its intention to do so, and in the case of clauses (ii) through
(v), not less than 30 days' prior written notice (in the form of an Officers'
Certificate), or such lesser notice period agreed to by the Collateral Agent, of
its intention so to do, and, in each case, clearly describing such change and
providing such other information in connection therewith as the Collateral Agent
or the Administrative Agent may reasonably request and (B) it shall have taken
all action reasonably satisfactory to the Collateral Agent to maintain the
perfection and priority of the security interest of the Collateral Agent for the
benefit of the Secured Parties in the Collateral, if applicable. Each Loan Party
agrees to promptly provide the Collateral Agent with certified Organizational
Documents reflecting any of the changes described in the preceding sentence.
Each Loan Party also agrees to promptly notify the Collateral Agent of any
change in the location of any office in which it maintains books or records
relating to Collateral owned by it or any office or facility at which Collateral
is located (including the establishment of any such new office or facility),
other than changes in location to a Mortgaged Property or a leased property
subject to a Landlord Access Agreement. Prior to the Discharge of First Lien
Obligations, Holdings and the Borrower shall, and shall cause each Subsidiary
to, comply with the requirements of this Section 5.13 with respect to the
Obligations hereunder only to the same extent that Holdings, the Borrower and
such Subsidiaries are required to comply with provisions analogous to this
Section 5.13 with respect to the First Lien Obligations in the First Lien Credit
Agreement.
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(b) Concurrently with the delivery of financial statements pursuant
to Section 5.01(a), deliver to the Administrative Agent and the Collateral Agent
a Perfection Certificate Supplement and a certificate of a Financial Officer and
the chief legal officer of Borrower certifying that all UCC financing statements
(including fixture filings, as applicable) or other appropriate filings,
recordings or registrations, including all refilings, rerecordings and
reregistrations, containing a description of the Collateral have been filed of
record in each governmental, municipal or other appropriate office in each
jurisdiction necessary to protect and perfect the security interests and Liens
under the Security Documents for a period of not less than 18 months after the
date of such certificate (except as noted therein with respect to any
continuation statements to be filed within such period).
SECTION 5.14 POST-CLOSING MATTERS. Unless modified, amended, waived
or extended by the Administration Agent, execute and deliver the documents and
complete the tasks set forth on Schedule 5.14, in each case within the time
limits specified on such schedule.
SECTION 5.15 RATINGS. The Borrower shall use its best efforts to
obtain updated secured debt ratings on the Loans from each of S&P and ▇▇▇▇▇'▇
not less than once every fiscal year (which ratings need not be monitored public
ratings).
ARTICLE VI
NEGATIVE COVENANTS
Each Loan Party warrants, covenants and agrees with each Lender
that, so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan, all Fees
and all other expenses or amounts payable under any Loan Document have been paid
in full, unless the Required Lenders shall otherwise consent in writing, no Loan
Party will, nor will they cause or permit any Subsidiaries to:
SECTION 6.01 INDEBTEDNESS. Incur, create, assume or permit to exist,
directly or indirectly, any Indebtedness, except
(a) Indebtedness incurred under (i) this Agreement and the other
Loan Documents or (ii) Indebtedness under the First Lien Credit Agreement
in an aggregate principal amount of not more than $260.0 million at any
time outstanding and refinancings thereof in accordance with the terms of
the Intercreditor Agreement minus the Priority Debt Repayment Amount;
(b) (i) Indebtedness outstanding on the First Lien Closing Date and
listed on Schedule 6.01(b) and (ii) refinancings or renewals thereof;
provided that (A) any such refinancing Indebtedness is in an aggregate
principal amount not greater than the aggregate principal amount of the
Indebtedness being renewed or refinanced, plus the amount of any premiums
required to be paid thereon and reasonable fees and expenses associated
therewith, (B) such refinancing Indebtedness has a later or equal final
maturity and longer or equal weighted average life than the Indebtedness
being renewed or refinanced and (C) the covenants, events of default,
subordination and other provisions thereof (including any guarantees
thereof) shall be, in the aggregate, no less favorable to the Lenders than
those contained in the Indebtedness being renewed or refinanced;
(c) Indebtedness under Hedging Obligations that are designed to
protect against fluctuations in interest rates, foreign currency exchange
rates or commodity prices, in each case not entered into for speculative
purposes; provided that if such Hedging Obligations relate to interest
rates, (a) such Hedging Obligations relate to payment obligations on
Indebtedness otherwise permitted to be incurred by the Loan Documents and
(b) the notional principal amount of such Hedg-
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ing Obligations at the time incurred does not exceed the principal amount
of the Indebtedness to which such Hedging Obligations relate;
(d) Indebtedness permitted by Section 6.04(f);
(e) Indebtedness in respect of Purchase Money Obligations and
Capital Lease Obligations, and refinancings or renewals thereof, in an
aggregate amount not to exceed $7.7 million at any time outstanding and
Indebtedness in respect of Purchase Money Obligations and Capital Lease
Obligations incurred in connection with the initial construction or
acquisition of the New North Carolina Plant, and refinancings and renewals
thereof in an aggregate amount not to exceed $13.2 million at any time
outstanding;
(f) Indebtedness in respect of bid, performance or surety bonds
issued for the account of any Company in the ordinary course of business,
including guarantees or obligations of any Company with respect to letters
of credit supporting such bid, performance or surety obligations (in each
case other than for an obligation for money borrowed), in an aggregate
amount not to exceed $8.3 million at any time outstanding;
(g) Contingent Obligations of any Loan Party in respect of
Indebtedness otherwise permitted under this Section 6.01;
(h) Indebtedness 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; provided that such
Indebtedness is extinguished within five Business Days of incurrence;
(i) Indebtedness arising in connection with endorsement of
instruments for deposit in the ordinary course of business;
(j) unsecured Indebtedness of any Company in an aggregate amount not
to exceed $7.7 million at any time outstanding;
(k) Indebtedness consisting of "pay-in-kind" interest payments made
in respect of obligations evidenced by bonds, debentures, notes or similar
instruments otherwise permitted hereunder;
(l) accretion of principal amount of obligations evidenced by bonds,
debentures, notes or similar instruments issued at any original issued
discount; and
(m) Indebtedness of persons acquired in a Permitted Acquisition in
an aggregate amount not to exceed $5.5 million at any time outstanding,
provided that such Indebtedness was not incurred by such acquired person
in connection with, or in anticipation or contemplation of such Permitted
Acquisition.
SECTION 6.02 LIENS. Create, incur, assume or permit to exist,
directly or indirectly, any Lien on any property now owned or hereafter acquired
by it or on any income or revenues or rights in respect of any thereof, except
the following (collectively, the "PERMITTED LIENS"):
(a) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due and payable or delinquent and Liens for taxes,
assessments or governmental charges or levies, which (i) are being
contested in good faith by appropriate proceedings for which adequate
re-
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serves have been established in accordance with GAAP, which proceedings
(or orders entered in connection with such proceedings) have the effect of
preventing the forfeiture or sale of the property subject to any such
Lien, or (ii) in the case of any such charge or claim which has or may
become a Lien against any of the Collateral, such Lien and the contest
thereof shall satisfy the Contested Collateral Lien Conditions;
(b) Liens in respect of property of any Company imposed by law,
which were incurred in the ordinary course of business and do not secure
Indebtedness for borrowed money, such as carriers', warehousemen's,
materialmen's, landlords', workmen's, suppliers', repairmen's and
mechanics' Liens and other similar Liens arising in the ordinary course of
business, and (i) which do not in the aggregate materially detract from
the value of the property of the Companies, taken as a whole, and do not
materially impair the use thereof in the operation of the business of the
Companies, taken as a whole, (ii) which, if they secure obligations that
are then due and unpaid, are being contested in good faith by appropriate
proceedings for which adequate reserves have been established in
accordance with GAAP, which proceedings (or orders entered in connection
with such proceedings) have the effect of preventing the forfeiture or
sale of the property subject to any such Lien, and (iii) in the case of
any such Lien which has or may become a Lien against any of the
Collateral, such Lien and the contest thereof shall satisfy the Contested
Collateral Lien Conditions;
(c) any Lien in existence on the Effective Date and set forth on
Schedule 6.02(c) and any Lien granted as a replacement or substitute
therefor; provided that any such replacement or substitute Lien (i) except
as permitted by Section 6.01(b)(ii)(A), does not secure an aggregate
amount of Indebtedness, if any, greater than that secured on the Effective
Date and (ii) does not encumber any property other than the property
subject thereto on the Effective Date (any such Lien, an "EXISTING LIEN");
(d) easements, rights-of-way, restrictions (including zoning
restrictions), covenants, licenses, encroachments, protrusions and other
similar charges or encumbrances, and minor title deficiencies on or with
respect to any Real Property, in each case whether now or hereafter in
existence, not (i) securing Indebtedness, (ii) individually or in the
aggregate materially impairing the value or marketability of such Real
Property or (iii) individually or in the aggregate materially interfering
with the ordinary conduct of the business of the Companies at such Real
Property;
(e) Liens arising out of judgments, attachments or awards not
resulting in a Default and in respect of which such Company shall in good
faith be prosecuting an appeal or proceedings for review in respect of
which there shall be secured a subsisting stay of execution pending such
appeal or proceedings and, in the case of any such Lien which has or may
become a Lien against any of the Collateral, such Lien and the contest
thereof shall satisfy the Contested Collateral Lien Conditions;
(f) Liens (other than any Lien imposed by ERISA) (x) imposed by law
or deposits made in connection therewith in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security legislation, (y) incurred in the
ordinary course of business to secure the performance of tenders,
statutory obligations (other than excise taxes), surety, stay, customs and
appeal bonds, statutory bonds, bids, leases, government contracts, trade
contracts, performance and return of money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money)
or (z) arising by virtue of deposits made in the ordinary course of
business to secure liability for premiums to insurance carriers; provided
that (i) with respect to clauses (x), (y) and (z) of this paragraph (f),
such Liens
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are for amounts not yet due and payable or delinquent or, to the extent
such amounts are so due and payable, such amounts are being contested in
good faith by appropriate proceedings for which adequate reserves have
been established in accordance with GAAP, which proceedings for orders
entered in connection with such proceedings have the effect of preventing
the forfeiture or sale of the property subject to any such Lien, (ii) to
the extent such Liens are not imposed by law, such Liens shall in no event
encumber any property other than cash and Cash Equivalents, (iii) in the
case of any such Lien against any of the Collateral, such Lien and the
contest thereof shall satisfy the Contested Collateral Lien Conditions and
(iv) the aggregate amount of deposits at any time pursuant to clause (y)
and clause (z) of this paragraph (f) shall not exceed $1.7 million in the
aggregate;
(g) Leases of the properties of any Company, in each case entered
into in the ordinary course of such Company's business so long as such
Leases do not, individually or in the aggregate, (i) interfere in any
material respect with the ordinary conduct of the business of any Company
or (ii) materially impair the use (for its intended purposes) or the value
of the property subject thereto;
(h) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by
any Company in the ordinary course of business in accordance with the past
practices of such Company;
(i) Liens securing Indebtedness incurred pursuant to Section
6.01(e); provided that any such Liens attach only to the property being
financed pursuant to such Indebtedness and do not encumber any other
property of any Company;
(j) bankers' Liens, rights of setoff and other similar Liens
existing solely with respect to cash and Cash Equivalents on deposit in
one or more accounts maintained by any Company, in each case granted in
the ordinary course of business in favor of the bank or banks with which
such accounts are maintained, securing amounts owing to such bank with
respect to cash management and operating account arrangements, including
those involving pooled accounts and netting arrangements; provided that,
unless such Liens are non-consensual and arise by operation of law, in no
case shall any such Liens secure (either directly or indirectly) the
repayment of any Indebtedness;
(k) Liens on property of a person existing at the time such person
is acquired or merged with or into or consolidated with any Company to the
extent permitted hereunder (and not created in anticipation or
contemplation thereof); provided that such Liens do not extend to property
not subject to such Liens at the time of acquisition (other than
improvements thereon) and are no more favorable to the lienholders than
such existing Lien;
(l) Liens granted pursuant to the Security Documents to secure the
Obligations and (ii) subject to the Intercreditor Agreement, Liens granted
under First Lien Security Documents to secure First Lien Obligations
incurred in accordance with Section 6.01(a)(ii);
(m) licenses of Intellectual Property granted by any Company in the
ordinary course of business and not interfering in any material respect
with the ordinary conduct of business of the Companies;
(n) the filing of UCC financing statements solely as a precautionary
measure in connection with operating leases or consignment of goods;
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(o) Liens incurred in the ordinary course of business of any Company
with respect to obligations that do not in the aggregate exceed $1.7
million at any time outstanding, so long as such Liens, to the extent
covering any Collateral, are junior to the Liens granted pursuant to the
Security Documents; and
(p) Liens on cash or cash equivalents securing Hedging Obligations
of the type described in Section 6.01(c) entered into in the ordinary
course of business, consistent with past practices and designed to protect
against fluctuations in the price of aluminum and not for speculative
purposes;
provided that no consensual Liens shall be permitted to exist, directly or
indirectly, on any Securities Collateral, other than Liens granted pursuant to
the Security Documents and, subject to the terms of the Intercreditor Agreement,
Liens granted pursuant to the First Lien Security Documents.
SECTION 6.03 SALE AND LEASEBACK TRANSACTIONS. Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred (a "SALE AND LEASEBACK
TRANSACTION") unless (i) the sale of such property is permitted by Section 6.06
and (ii) any Liens arising in connection with its use of such property are
permitted by Section 6.02.
SECTION 6.04 INVESTMENT, LOAN AND ADVANCES. Directly or indirectly,
lend money or credit (by way of guarantee or otherwise) or make advances to any
person, or purchase or acquire any stock, bonds, notes, debentures or other
obligations or securities of, or any other interest in, or make any capital
contribution to, any other person, or purchase or own a futures contract or
otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract (all of the
foregoing, collectively, "INVESTMENTS"), except that the following shall be
permitted:
(a) [Intentionally Omitted];
(b) Investments outstanding on the First Lien Closing Date and
identified on Schedule 6.04(b);
(c) the Companies may (i) acquire and hold accounts receivables
owing to any of them if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary terms,
(ii) invest in, acquire and hold cash and Cash Equivalents, (iii) endorse
negotiable instruments held for collection in the ordinary course of
business or (iv) make lease, utility and other similar deposits in the
ordinary course of business;
(d) Hedging Obligations permitted to be incurred under Section
6.01(c);
(e) loans and advances to directors, employees and officers of
Borrower and the Subsidiaries for bona fide business purposes and to
purchase Equity Interests of Window Holdings, in aggregate amount not to
exceed $550,000 at any time outstanding;
(f) Investments (i) by Borrower in any Subsidiary Guarantor, (ii) by
any Company in Borrower or any Subsidiary Guarantor, (iii) by a Subsidiary
Guarantor in another Subsidiary Guarantor and (iv) by a Subsidiary that is
not a Subsidiary Guarantor in any other Subsidiary that is not a
Subsidiary Guarantor; provided that any Investment in the form of a loan
or advance shall
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be evidenced by the Intercompany Note and, in the case of a loan or
advance by a Loan Party, pledged by such Loan Party as Collateral pursuant
to the Security Documents;
(g) Investments in securities of trade creditors or customers in the
ordinary course of business and consistent with such Company's past
practices that are received in settlement of bona fide disputes or
pursuant to any plan of reorganization or liquidation or similar
arrangement upon the bankruptcy or insolvency of such trade creditors or
customers;
(h) Investments made by Borrower or any Subsidiary as a result of
consideration received in connection with an Asset Sale made in compliance
with Section 6.06;
(i) other investments in an aggregate amount not to exceed $7.7
million at any time outstanding; and
(j) Permitted Acquisitions.
SECTION 6.05 MERGERS AND CONSOLIDATIONS. Wind up, liquidate or
dissolve its affairs or enter into any transaction of merger or consolidation
(or agree to do any of the foregoing at any future time), except that the
following shall be permitted:
(a) [Intentionally Omitted];
(b) Assets Sales in compliance with Section 6.06;
(c) acquisitions in compliance with Section 6.07;
(d) subject to compliance with the provisions of this Agreement, any
Company (other than Holdings) may merge or consolidate with or into
Borrower or any Subsidiary Guarantor (as long as Borrower or a Subsidiary
Guarantor is the surviving person in such merger or consolidation and
remains a Wholly Owned Subsidiary of Holdings); provided that the Lien on
and security interest in such property granted or to be granted in favor
of the Collateral Agent under the Security Documents shall be maintained
or created in accordance with the provisions of Section 5.11 or Section
5.12, as applicable; and
(e) any Subsidiary may dissolve, liquidate or wind up its affairs at
any time; provided that such dissolution, liquidation or winding up, as
applicable, could not reasonably be expected to have a Material Adverse
Effect.
To the extent the Required Lenders waive the provisions of this
Section 6.05 with respect to the sale of any Collateral, or any Collateral is
sold as permitted by this Section 6.05, such Collateral (unless sold to a
Company) shall be sold free and clear of the Liens created by the Security
Documents (provided that the Liens of the First Lien Secured Parties on such
Collateral are concurrently released on the same terms), and the Agents shall
take all actions they deem appropriate in order to effect the foregoing.
SECTION 6.06 ASSET SALES. Effect any Asset Sale, or agree to effect
any Asset Sale, except that the following shall be permitted:
(a) disposition of used, worn out, obsolete or surplus property by
any Loan Party in the ordinary course of business and the abandonment or
other disposition of Intellectual Property
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that is, in the reasonable judgment of Borrower, no longer economically
practicable to maintain or useful in the conduct of the business of the
Companies taken as a whole;
(b) Asset Sales; provided that the aggregate consideration received
in respect of all Asset Sales pursuant to this clause (b) shall not exceed
$7.7 million in any four consecutive fiscal quarters of Borrower, but, in
any event, shall not exceed $770,000 with respect to any single Asset
Sale;
(c) leases of real or personal property in the ordinary course of
business and in accordance with the applicable Security Documents;
(d) mergers and consolidations in compliance with Section 6.05;
(e) Investments in compliance with Section 6.04;
(f) transfer of assets or property between Borrower and any
Wholly-Owned Subsidiary Guarantor or between Wholly-Owned Subsidiary
Guarantors; provided that (i) such transfer does not materially impair any
Lien thereon granted to any Secured Party under any Security Document and
(ii) in the case of any such transfer or series of related transfers of
assets or property with a fair market value (as determined in good faith
by an executive officer or the Board of Directors of Borrower) in excess
of $8.3 million, Borrower shall give the Administrative Agent three
Business Days' prior written notice, which notice shall specify the assets
or property subject to such transfer, the identity of the Loan Party in
receipt of such asset or property and the location of such asset or
property; and
(g) the Permitted North Carolina Sale and Leaseback Transaction.
To the extent the Required Lenders waive the provisions of this
Section 6.06 with respect to the sale of any Collateral, or any Collateral is
sold as permitted by this Section 6.06, such Collateral (unless sold to a
Company) shall be sold free and clear of the Liens created by the Security
Documents (provided the Liens of the First Lien Secured Parties on such
Collateral are concurrently released on the same terms), and the Agents shall
take all actions they deem appropriate in order to effect the foregoing.
SECTION 6.07 ACQUISITIONS. Purchase or otherwise acquire (in one or
a series of related transactions) any part of the property (whether tangible or
intangible) of any person (or agree to do any of the foregoing at any future
time), except that the following shall be permitted:
(a) Capital Expenditures by Borrower and the Subsidiaries shall be
permitted to the extent permitted by Section 6.10(d);
(b) purchases and other acquisitions of inventory, materials,
equipment and intangible property in the ordinary course of business;
(c) Investments in compliance with Section 6.04;
(d) leases of real or personal property in the ordinary course of
business and in accordance with the applicable Security Documents;
(e) [Intentionally Omitted];
(f) Permitted Acquisitions; and
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(g) mergers and consolidations in compliance with Section 6.05;
provided that the Lien on and security interest in such property granted or to
be granted in favor of the Collateral Agent under the Security Documents shall
be maintained or created in accordance with the provisions of Section 5.11 or
Section 5.12, as applicable.
SECTION 6.08 DIVIDENDS. Authorize, declare or pay, directly or
indirectly, any Dividends with respect to any Company, except that the following
shall be permitted:
(a) Dividends by any Company (other than Borrower) to Borrower or
any Guarantor that is a Wholly Owned Subsidiary of Borrower;
(b) payments to Window Holdings to permit Window Holdings, and the
subsequent use of such payments by Window Holdings, (i) to repurchase or
redeem Qualified Capital Stock of Window Holdings held by officers,
directors or employees or former officers, directors or employees (or
their transferees, estates or beneficiaries under their estates) of any
Company, upon their death, disability, retirement, severance or
termination of employment or service provided that the aggregate cash
consideration paid for all such redemptions and payments shall not exceed
(a) $1.7 million in any fiscal year and (b) $6.2 million in the aggregate
from the First Lien Closing Date; and (ii) to make cashless redemptions
and cashless repurchases of Qualified Capital Stock of Window Holdings
held by officers, directors or employees or former officers, directors or
employees (or their transferees, estates or beneficiaries under their
estates) of any Company in order to satisfy, in whole or in part,
withholding tax requirements or exercise price requirements pursuant to a
restricted stock agreement or a cashless exercise option in connection
with the exercise of warrants, options or other rights in accordance with
the provisions of a warrant, option or other rights plan or program of
such Company;
(c) (A) to the extent actually used by Holdings to pay such Taxes,
costs and expenses, payments by Borrower to or on behalf of Holdings in an
amount sufficient to pay franchise taxes and other fees required to
maintain the legal existence of Holdings and (B) payments by Borrower to
or on behalf of Holdings in an amount sufficient to pay reasonable
out-of-pocket legal, accounting and filing costs and other expenses in the
nature of overhead in the ordinary course of business of Holdings;
(d) distributions by Borrower to Holdings, so long as Holdings uses
such distributions to pay Taxes provided that such payments do not in the
aggregate materially exceed the Tax liabilities that would have been
payable by Borrower and its Subsidiaries on a stand-alone basis;
(e) the 2006 Dividend; and
(f) so long as no Default is continuing at the time of the
declaration of such Dividend, the declaration or payment of Dividends on
Qualified Capital Stock of Holdings following the IPO of Holdings (or the
initial public offering of a parent of Holdings (the net proceeds of which
were contributed as cash common equity to Holdings)) in an amount per
annum not to exceed the lesser of (i) 6% of the gross cash proceeds
received by Holdings in connection with such IPO (or contributed to
Holdings, as the case may be) and (ii) $10.0 million per annum, other than
public offerings registered on Form S-4 or S-8.
SECTION 6.09 TRANSACTIONS WITH AFFILIATES. Enter into, directly or
indirectly, any transaction or series of related transactions, whether or not in
the ordinary course of business, with any Affiliate of any Company (other than
between or among Borrower and one or more Subsidiary Guaran-
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tors), other than on terms and conditions at least as favorable to such Company
as would reasonably be obtained by such Company at that time in a comparable
arm's-length transaction with a person other than an Affiliate, except that the
following shall be permitted:
(a) Dividends permitted by Section 6.08;
(b) Investments permitted by Sections 6.04(e) and (f);
(c) reasonable and customary director, officer and employee
compensation (including bonuses) and other benefits (including retirement,
health, stock option and other benefit plans) and indemnification
arrangements, in each case approved by the Board of Directors;
(d) transactions with customers, clients, suppliers, joint venture
partners or purchasers or sellers of goods and services, in each case in
the ordinary course of business and otherwise not prohibited by the Loan
Documents;
(e) so long as no Event of Default is continuing, the payment of
management fees ("MANAGEMENT FEES") (including Management Fees previously
not paid when due because of the existence of an Event of Default) to
Sponsor in the amounts and at the times specified in the Management
Services Agreement dated the First Lien Closing Date, by and among Window
Holdings and JLL Associates IV, L.P., a Delaware limited partnership (the
"MANAGEMENT SERVICES AGREEMENT"), as in effect on the Effective Date or as
thereafter amended or replaced in any manner, that, taken as a whole, is
not more adverse to the interests of the Lenders in any material respect
than such agreement as it was in effect on the Effective Date; provided
that payments under this clause (e) shall in any event not exceed the
amount per fiscal year set forth in such Management Services Agreement, as
in effect on the Effective Date;
(f) sales of Qualified Capital Stock to Affiliates of Borrower not
otherwise prohibited by the Loan Documents and the granting of
registration and other customary rights in connection therewith; and
(g) any transaction with an Affiliate where the only consideration
paid by any Loan Party is Qualified Capital Stock.
SECTION 6.10 FINANCIAL COVENANTS.
(a) Maximum Total Leverage Ratio. Permit the Total Leverage Ratio,
as of the last day of any Test Period ending closest to the end of the period
set forth in the table below, to exceed the ratio set forth opposite such period
in the table below:
TEST PERIOD LEVERAGE RATIO
----------- --------------
April 1, 2006 -- June 30, 2006 6.60 to 1.0
July, 1, 2006 -- September 30, 2006 6.60 to 1.0
October 1, 2006 -- December 31, 2006 6.40 to 1.0
January 1, 2007 -- March 31, 2007 6.15 to 1.0
April 1, 2007 -- June 30, 2007 5.90 to 1.0
July 1, 2007 -- September 30, 2007 5.65 to 1.0
October 1, 2007 -- December 31, 2007 5.40 to 1.0
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TEST PERIOD LEVERAGE RATIO
----------- --------------
January 1, 2008 -- March 31, 2008 5.30 to 1.0
April 1, 2008 -- June 30, 2008 5.20 to 1.0
July 1, 2008 -- September 30, 2008 5.05 to 1.0
October 1, 2008 -- December 31, 2008 4.90 to 1.0
January 1, 2009 -- March 31, 2009 4.75 to 1.0
April 1, 2009 -- June 30, 2009 4.55 to 1.0
July 1, 2009 -- September 30, 2009 4.35 to 1.0
October 1, 2009 -- December 31, 2009 4.15 to 1.0
January 1, 2010 -- March 31, 2010 4.00 to 1.0
April 1, 2010 -- June 30, 2010 3.80 to 1.0
July 1, 2010 -- September 30, 2010 3.60 to 1.0
October 1, 2010 and thereafter 3.40 to 1.0
(b) Minimum Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio, for any Test Period ending during any period set forth
in the table below, to be less than the ratio set forth opposite such period in
the table below:
TEST PERIOD INTEREST COVERAGE RATIO
----------- -----------------------
April 1, 2006 -- June 30, 2006 1.40 to 1.0
July, 1, 2006 -- September 30, 2006 1.40 to 1.0
October 1, 2006 -- December 31, 2006 1.40 to 1.0
January 1, 2007 -- March 31, 2007 1.45 to 1.0
April 1, 2007 -- June 30, 2007 1.50 to 1.0
July 1, 2007 -- September 30, 2007 1.55 to 1.0
October 1, 2007 -- December 31, 2007 1.60 to 1.0
January 1, 2008 -- March 31, 2008 1.65 to 1.0
April 1, 2008 -- June 30, 2008 1.70 to 1.0
July 1, 2008 -- September 30, 2008 1.75 to 1.0
October 1, 2008 -- December 31, 2008 1.80 to 1.0
January 1, 2009 -- March 31, 2009 1.80 to 1.0
April 1, 2009 -- June 30, 2009 1.85 to 1.0
July 1, 2009 -- September 30, 2009 1.85 to 1.0
October 1, 2009 -- December 31, 2009 1.90 to 1.0
January 1, 2010 -- March 31, 2010 2.00 to 1.0
April 1, 2010 -- June 30, 2010 2.10 to 1.0
July 1, 2010 -- September 30, 2010 2.20 to 1.0
October 1, 2010 and thereafter 2.30 to 1.0
(c) [Intentionally Omitted].
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(d) Limitation on Capital Expenditures. Permit the aggregate amount
of Capital Expenditures made in any period set forth below, to exceed the amount
set forth opposite such period below:
AMOUNT
PERIOD (IN MILLIONS)
------ ------------
January 1, 2006 - December 31, 2006 $ 35.0
January 1, 2007 - December 31, 2007 $ 17.0
January 1, 2008 - December 31, 2008 $ 17.0
January 1, 2009 - December 31, 2009 $ 17.0
January 1, 2010 - December 31, 2010 $ 18.0
January 1, 2011 - December 31, 2011 $ 19.0
January 1, 2012 - Second Lien Maturity Date $ 15.0
provided, however, that (x) if the aggregate amount of Capital Expenditures made
in any fiscal year shall be less than the maximum amount of Capital Expenditures
permitted under this Section 6.10(d) for such fiscal year (before giving effect
to any carryover), then an amount of such shortfall not exceeding 50% of such
maximum amount (without giving effect to clause (z) below) may be added to the
amount of Capital Expenditures permitted under this Section 6.10(d) for the
immediately succeeding (but not any other) fiscal year, (y) in determining
whether any amount is available for carryover, the amount expended in any fiscal
year shall first be deemed to be from the amount allocated to such fiscal year
(before giving effect to any carryover) and (z) the amount set forth in the
table above for any period may be increased by the amount of Net Cash Proceeds
of Excluded Issuances designated for Capital Expenditures for such period during
such period; and provided, further, that for purposes of this Section 6.10(d),
in determining Capital Expenditures, whether the increase in gross property,
plant and equipment account is due to purchase of properties for cash or
financed by the incurrence of Indebtedness, such increase shall be deemed a
Capital Expenditure.
SECTION 6.11 PREPAYMENTS OF OTHER INDEBTEDNESS; MODIFICATIONS OF
ORGANIZATIONAL DOCUMENTS AND OTHER DOCUMENTS, ETC. Directly or indirectly:
(a) make (or give any notice in respect thereof) any voluntary or
optional payment or prepayment on or redemption or acquisition for value
of, or any prepayment or redemption as a result of any asset sale, change
of control or similar event of any Subordinated Indebtedness, except as
otherwise permitted by this Agreement;
(b) amend or modify, or permit the amendment or modification of, any
provision of any (i) Loan Document in any manner that is adverse in any
material respect to the interests of the Lenders or (ii) First Lien Loan
Document, except in accordance with the Intercreditor Agreement and
Section 6.01(a)(ii); or
(c) terminate, amend, modify (including electing to treat any
Pledged Interests (as defined in the Security Agreement) as a "security"
under Section 8-103 of the UCC) or change any of its Organizational
Documents (including by the filing or modification of any certificate of
designation) or any agreement to which it is a party with respect to its
Equity Interests (including any stockholders' agreement), or enter into
any new agreement with respect to its Equity Interests, other than any
such amendments, modifications or changes or such new agreements which
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are not adverse in any material respect to the interests of the Lenders;
provided that Window Holdings may issue such Equity Interests, so long as
such issuance is not prohibited by Section 6.13 or any other provision of
this Agreement, and may amend its Organizational Documents to authorize
any such Equity Interests.
SECTION 6.12 LIMITATION ON CERTAIN RESTRICTIONS ON SUBSIDIARIES.
Directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Subsidiary to (a)
pay dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by Borrower or any Subsidiary, or
pay any Indebtedness owed to Borrower or a Subsidiary, (b) make loans or
advances to Borrower or any Subsidiary or (c) transfer any of its properties to
Borrower or any Subsidiary, except for such encumbrances or restrictions
existing under or by reason of (i) applicable law; (ii) this Agreement and the
other Loan Documents and/or the First Lien Loan Documents; (iii) customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest of a Subsidiary; (iv) customary provisions restricting
assignment of any agreement entered into by a Subsidiary in the ordinary course
of business; (v) any holder of a Lien permitted by Section 6.02 restricting the
transfer of the property subject thereto; (vi) customary restrictions and
conditions contained in any agreement relating to the sale of any property
permitted under Section 6.06 pending the consummation of such sale; (vii) any
agreement in effect at the time such Subsidiary becomes a Subsidiary of
Borrower, so long as such agreement was not entered into in connection with or
in contemplation of such person becoming a Subsidiary of Borrower; (viii) in the
case of any joint venture which is not a Loan Party in respect of any matters
referred to in clauses (b) and (c) above, restrictions in such person's
Organizational Documents or pursuant to any joint venture agreement or
stockholders agreements solely to the extent of the Equity Interests of or
property held in the subject joint venture or other entity; or (ix) any
encumbrances or restrictions imposed by any amendments or refinancings that are
otherwise permitted by the Loan Documents of the contracts, instruments or
obligations referred to in clauses (iii) or (vii) above; provided that such
amendments or refinancings are no more materially restrictive with respect to
such encumbrances and restrictions than those prior to such amendment or
refinancing.
SECTION 6.13 LIMITATION ON ISSUANCE OF CAPITAL STOCK.
(a) With respect to Window Holdings, issue any Equity Interest that
is not Qualified Capital Stock.
(b) With respect to Borrower or any Subsidiary, issue any Equity
Interest (including by way of sales of treasury stock) or any options or
warrants to purchase, or securities convertible into, any Equity Interest,
except (i) for stock splits, stock dividends and additional issuances of Equity
Interests which do not decrease the percentage ownership of Borrower or any
Subsidiaries in any class of the Equity Interest of such Subsidiary; (ii)
Subsidiaries of Borrower formed after the Effective Date in accordance with
Section 6.14 may issue Equity Interests to Borrower or the Subsidiary of
Borrower which is to own such Equity Interests; (iii) Borrower may issue common
stock that is Qualified Capital Stock to Window Holdings; and (iv) Borrower may
issue Equity Interests to Additional Equity Partners in Qualified Contribution
Transactions. All Equity Interests issued in accordance with this Section
6.13(b) shall, to the extent required by Sections 5.11 and 5.12 or the Security
Agreement, be delivered to the Collateral Agent for pledge pursuant to the
Security Agreement.
SECTION 6.14 LIMITATION ON CREATION OF SUBSIDIARIES. Establish,
create or acquire any additional Subsidiaries without the prior written consent
of the Required Lenders; provided that, without such consent, Borrower may (i)
establish or create one or more Wholly Owned Subsidiaries of Borrower, (ii)
establish, create or acquire one or more Subsidiaries in connection with an
Investment
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made pursuant to Section 6.04(f) or (iii) acquire one or more Subsidiaries in
connection with a Permitted Acquisition, so long as, in each case, Section
5.11(b) shall be complied with, provided, further that in no event may any Loan
Party establish, create or acquire any Foreign Subsidiary without the prior
written consent of the Required Lenders.
SECTION 6.15 BUSINESS.
(a) With respect to Holdings, engage in any business activities or
have any properties or liabilities, other than (i) its ownership of the Equity
Interests of Borrower, (ii) obligations under the Loan Documents and the First
Lien Loan Documents and (iii) activities and properties incidental to the
foregoing clauses (i) and (ii).
(b) With respect to Borrower and its Subsidiaries, engage (directly
or indirectly) in any business other than those businesses in which Borrower and
its Subsidiaries are engaged on the Effective Date (or, in the good faith
judgment of the Board of Directors, which are substantially related thereto or
are reasonable extensions thereof).
SECTION 6.16 LIMITATION ON ACCOUNTING CHANGES. Make or permit, any
material change, any change which would have a material impact on the results of
operations or financial condition or financial statements or make any change
which would be determinative as to whether or not Window Holdings and its
Subsidiaries would be in compliance with any of the covenants set forth in
Article VI hereof, in accounting policies or reporting practices, without the
consent of the Administrative Agent, which consent shall not be unreasonably
withheld, except changes that are required by GAAP.
SECTION 6.17 FISCAL YEAR. Change its fiscal year-end to a date other
than the Saturday closest to December 31.
SECTION 6.18 EMBARGOED PERSON. Cause or permit (a) any of the funds
or properties of the Loan Parties that are used to repay the Loans to constitute
property of, or be beneficially owned directly or indirectly by, any person
subject to sanctions or trade restrictions under United States law ("EMBARGOED
PERSON" or "EMBARGOED PERSONS") that is identified on (1) the "List of Specially
Designated Nationals and Blocked Persons" (the "SDN LIST") maintained by OFAC
and/or on any other similar list ("OTHER LIST") maintained by OFAC pursuant to
any authorizing statute including, but not limited to, the International
Emergency Economic Powers Act, 50 U.S.C. Sections 1701 et seq., The Trading with
the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Order or regulation
promulgated thereunder, with the result that the investment in the Loan Parties
(whether directly or indirectly) is prohibited by law, or the Loans made by the
Lenders would be in violation of law, or (2) the Executive Order, any related
enabling legislation or any other similar Executive Orders (collectively,
"EXECUTIVE ORDERS"), or (b) any Embargoed Person to have any direct or indirect
interest, of any nature whatsoever in the Loan Parties, with the result that the
investment in the Loan Parties (whether directly or indirectly) is prohibited by
law or the Loans are in violation of law.
SECTION 6.19 NO FURTHER NEGATIVE PLEDGE. Enter into any agreement,
instrument, deed or lease which prohibits or limits the ability of any Loan
Party to create, incur, assume or suffer to exist any Lien upon any of their
respective properties or revenues, whether now owned or hereafter acquired, or
which requires the grant of any security for an obligation if security is
granted for another obligation, except the following: (1) this Agreement and the
other Loan Documents and the First Lien Credit Agreement and the other First
Lien Loan Documents; (2) covenants in documents creating Liens permitted by
Section 6.02 prohibiting further Liens on the properties encumbered thereby; (3)
any other agreement that does not restrict in any manner (directly or
indirectly) Liens created pursuant to the Loan Documents on any Collateral
securing the Obligations and does not require the direct or indirect granting
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of any Lien securing any Indebtedness or other obligation by virtue of the
granting of Liens on or pledge of property of any Loan Party to secure the
Obligations; and (4) any prohibition or limitation that (a) exists pursuant to
applicable law, (b) consists of customary restrictions and conditions contained
in any agreement relating to the sale of any property permitted under Section
6.06 pending the consummation of such sale, (c) restricts subletting or
assignment of any lease governing a leasehold interest of Borrower or a
Subsidiary, (d) exists in any agreement in effect at the time such Subsidiary
becomes a Subsidiary of Borrower, so long as such agreement was not entered into
in contemplation of such person becoming a Subsidiary or (e) customary contract
anti-assignment provisions, or (f) is imposed by any amendments or refinancings
that are otherwise permitted by the Loan Documents of the contracts, instruments
or obligations referred to in clause (3) or (4)(e); provided that such
amendments and refinancings are no more materially restrictive with respect to
such prohibitions and limitations than those prior to such amendment or
refinancing.
SECTION 6.20 ANTI-TERRORISM LAW; ANTI-MONEY LAUNDERING.
(a) Directly or indirectly, (i) knowingly conduct any business or
engage in making or receiving any contribution of funds, goods or services to or
for the benefit of any person described in Section 3.22, (ii) knowingly deal in,
or otherwise engage in any transaction relating to, any property or interests in
property blocked pursuant to the Executive Order or any other Anti-Terrorism
Law, or (iii) knowingly engage in or conspire to engage in any transaction that
evades or avoids, or has the purpose of evading or avoiding, or attempts to
violate, any of the prohibitions set forth in any Anti-Terrorism Law (and the
Loan Parties shall deliver to the Lenders any certification or other evidence
requested from time to time by any Lender in its reasonable discretion,
confirming the Loan Parties' compliance with this Section 6.20).
(b) Cause or permit any of the funds of such Loan Party that are
used to repay the Loans to be derived from any unlawful activity with the result
that the making of the Loans would be in violation of law.
ARTICLE VII
GUARANTEE
SECTION 7.01 THE GUARANTEE. The Guarantors hereby, jointly and
severally guarantee, as a primary obligor and not as a surety to each Secured
Party and their respective successors and assigns, the prompt payment in full
when due (whether at stated maturity, by required prepayment, declaration,
demand, by acceleration or otherwise) of the principal of and interest
(including any interest, fees, costs or charges that would accrue but for the
provisions of the Title 11 of the United States Code after any bankruptcy or
insolvency petition under Title 11 of the United States Code) on the Loans made
by the Lenders to, and the Notes held by each Lender of, Borrower, and all other
Obligations from time to time owing to the Secured Parties by any Loan Party
under any Loan Document in each case strictly in accordance with the terms
thereof (such obligations being herein collectively called the "GUARANTEED
OBLIGATIONS"). The Guarantors hereby jointly and severally agree that if
Borrower or other Guarantor(s) shall fail to pay in full when due (whether at
stated maturity, by acceleration or otherwise) any of the Guaranteed
Obligations, the Guarantors will promptly pay the same in cash, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Guaranteed Obligations, the same will be
promptly paid in full when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or renewal.
SECTION 7.02 OBLIGATIONS UNCONDITIONAL. The obligations of the
Guarantors under Section 7.01 shall constitute a guaranty of payment and to the
fullest extent permitted by applicable
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law, are absolute, irrevocable and unconditional, joint and several,
irrespective of the value, genuineness, validity, regularity or enforceability
of the Guaranteed Obligations of Borrower under this Agreement, the Notes, if
any, or any other agreement or instrument referred to herein or therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, irrespective of any other circumstance
whatsoever that might otherwise constitute a legal or equitable discharge or
defense of a surety or Guarantor (except for payment in full). Without limiting
the generality of the foregoing, it is agreed that the occurrence of any one or
more of the following shall not alter or impair the liability of the Guarantors
hereunder which shall remain absolute, irrevocable and unconditional under any
and all circumstances as described above:
(i) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or the Notes, if any, or any other agreement or instrument
referred to herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be amended in any
respect, or any right under the Loan Documents or any other agreement or
instrument referred to herein or therein shall be amended or waived in any
respect or any other guarantee of any of the Guaranteed Obligations or any
security therefor shall be released or exchanged in whole or in part or
otherwise dealt with;
(iv) any Lien or security interest granted to, or in favor of, any
Lender or Agent as security for any of the Guaranteed Obligations shall
fail to be perfected; or
(v) the release of any other Guarantor pursuant to Section 7.09.
The Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that any
Secured Party exhaust any right, power or remedy or proceed against Borrower
under this Agreement or the Notes, if any, or any other agreement or instrument
referred to herein or therein, or against any other person under any other
guarantee of, or security for, any of the Guaranteed Obligations. The Guarantors
waive any and all notice of the creation, renewal, extension, waiver,
termination or accrual of any of the Guaranteed Obligations and notice of or
proof of reliance by any Secured Party upon this Guarantee or acceptance of this
Guarantee, and the Guaranteed Obligations, and any of them, shall conclusively
be deemed to have been created, contracted or incurred in reliance upon this
Guarantee, and all dealings between Borrower and the Secured Parties shall
likewise be conclusively presumed to have been had or consummated in reliance
upon this Guarantee. This Guarantee shall be construed as a continuing,
absolute, irrevocable and unconditional guarantee of payment without regard to
any right of offset with respect to the Guaranteed Obligations at any time or
from time to time held by Secured Parties, and the obligations and liabilities
of the Guarantors hereunder shall not be conditioned or contingent upon the
pursuit by the Secured Parties or any other person at any time of any right or
remedy against Borrower or against any other person which may be or become
liable in respect of all or any part of the Guaranteed Obligations or against
any collateral security or guarantee therefor or right of offset with respect
thereto. This Guarantee shall remain in full force and effect and be binding in
accordance with and to the extent of its terms upon the Guarantors and the
successors and assigns thereof, and shall inure to the benefit of the Lenders,
and their respective successors and assigns, notwithstanding that from time to
time during the term of this Agreement there may be no Guaranteed Obligations
outstanding.
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SECTION 7.03 REINSTATEMENT. The obligations of the Guarantors under
this Article VII shall be automatically reinstated if and to the extent that for
any reason any payment by or on behalf of Borrower or other Loan Party in
respect of the Guaranteed Obligations is rescinded or must be otherwise restored
by any holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise.
SECTION 7.04 SUBROGATION; SUBORDINATION. Each Guarantor hereby
agrees that until the indefeasible payment and satisfaction in full in cash of
all Guaranteed Obligations and the expiration and termination of the Commitments
of the Lenders under this Agreement it shall waive any claim and shall not
exercise any right or remedy, direct or indirect, arising by reason of any
performance by it of its guarantee in Section 7.01, whether by subrogation or
otherwise, against Borrower or any other Guarantor of any of the Guaranteed
Obligations or any security for any of the Guaranteed Obligations. Any
Indebtedness of any Loan Party permitted pursuant to Section 6.01(a)(ii) or
Section 6.01(d) shall be subordinated to such Loan Party's Obligations in the
manner set forth in the Intercompany Note or the Window Intercompany Note, as
applicable, evidencing such Indebtedness.
SECTION 7.05 REMEDIES. The Guarantors jointly and severally agree
that, as between the Guarantors and the Lenders, the obligations of Borrower
under this Agreement and the Notes, if any, may be declared to be forthwith due
and payable as provided in Article VIII (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Article
VIII) for purposes of Section 7.01, notwithstanding any stay, injunction or
other prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against Borrower and that, in the event of
such declaration (or such obligations being deemed to have become automatically
due and payable), such obligations (whether or not due and payable by Borrower)
shall forthwith become due and payable by the Guarantors for purposes of Section
7.01.
SECTION 7.06 INSTRUMENT FOR THE PAYMENT OF MONEY. Each Guarantor
hereby acknowledges that the guarantee in this Article VII constitutes an
instrument for the payment of money, and consents and agrees that any Lender or
Agent, at its sole option, in the event of a dispute by such Guarantor in the
payment of any moneys due hereunder, shall have the right to bring a
motion-action under New York CPLR Section 3213.
SECTION 7.07 CONTINUING GUARANTEE. The guarantee in this Article VII
is a continuing guarantee of payment, and shall apply to all Guaranteed
Obligations whenever arising.
SECTION 7.08 GENERAL LIMITATION ON GUARANTEE OBLIGATIONS. In any
action or proceeding involving any state corporate limited partnership or
limited liability company law, or any applicable state, federal or foreign
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Guarantor under Section 7.01
would otherwise be held or determined to be void, voidable, invalid or
unenforceable, or subordinated to the claims of any other creditors, on account
of the amount of its liability under Section 7.01, then, notwithstanding any
other provision to the contrary, the amount of such liability shall, without any
further action by such Guarantor, any Loan Party or any other person, be
automatically limited and reduced to the highest amount that is valid and
enforceable and not subordinated to the claims of other creditors as determined
in such action or proceeding.
SECTION 7.09 RELEASE OF GUARANTORS. If, in compliance with the terms
and provisions of the Loan Documents, all or substantially all of the Equity
Interests or property of any Guarantor are sold or otherwise transferred (a
"TRANSFERRED GUARANTOR") to a person or persons, none of which is Borrower or a
Subsidiary, such Transferred Guarantor shall, upon the consummation of such sale
or transfer, be released from its obligations under this Agreement (including
under Section 11.03 hereof) and its
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obligations to pledge and grant any Collateral owned by it pursuant to any
Security Document and, in the case of a sale of all or substantially all of the
Equity Interests of the Transferred Guarantor, the pledge of such Equity
Interests to the Collateral Agent pursuant to the Security Agreements shall be
released, and the Collateral Agent shall take such actions as are necessary to
effect each release described in this Section 7.09 in accordance with the
relevant provisions of the Security Documents; provided that such Guarantor is
also released simultaneously from its obligations under the First Lien Loan
Documents on the same terms and to the same extent.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01 EVENTS OF DEFAULT. Upon the occurrence and during the
continuance of the following events ("EVENTS OF DEFAULT"):
(a) default shall be made in the payment of any principal of any
Loan when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment (whether voluntary or
mandatory) thereof or by acceleration thereof or otherwise;
(b) default shall be made in the payment of any interest on any Loan
or any Fee or any other amount (other than an amount referred to in
paragraph (a) above) due under any Loan Document, when and as the same
shall become due and payable, and such default shall continue unremedied
for a period of three Business Days;
(c) any representation or warranty made or deemed made in or in
connection with any Loan Document or the borrowings hereunder, or any
representation, warranty, statement or information contained in any
report, certificate, financial statement or other instrument furnished in
connection with or pursuant to any Loan Document, shall prove to have been
false or misleading in any material respect when so made, deemed made or
furnished;
(d) default shall be made in the due observance or performance by
any Company of any covenant, condition or agreement contained in Section
5.02, 5.03(a) or 5.08 or in Article VI;
(e) default shall be made in the due observance or performance by
any Company of any covenant, condition or agreement contained in any Loan
Document (other than those specified in paragraphs (a), (b) or (d)
immediately above) and such default shall continue unremedied or shall not
be waived for a period of 30 days after written notice thereof from the
Administrative Agent or any Lender to Borrower;
(f) any Company shall (i) fail to pay any principal or interest,
regardless of amount, due in respect of any Indebtedness (other than the
Obligations), when and as the same shall become due and payable beyond any
applicable grace period, or (ii) fail to observe or perform any other
term, covenant, condition or agreement contained in any agreement or
instrument evidencing or governing any such Indebtedness if the effect of
any failure referred to in this clause (ii) is to cause, or to permit the
holder or holders of such Indebtedness or a trustee or other
representative on its or their behalf to cause, such Indebtedness to
become due prior to its stated maturity or become subject to a mandatory
offer purchase by the obligor; provided that, other than in the case of
First Lien Loans, it shall not constitute an Event of Default pursuant to
this paragraph (f) unless the aggregate amount of all such Indebtedness
referred to in clauses (i) and (ii) exceeds $2.25 million at any one time
(provided that, in the case of Hedging Obligations, the termination value
shall be counted for this purpose); provided further that, with respect to
any such failure
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under the First Lien Credit Agreement, such failure shall only constitute
an Event of Default under this Section 8.01(f) if (A) such failure relates
to an Event of Default under Section 8.01(a) or (b) of the First Lien
Credit Agreement which has not been cured or waived within 5 Business Days
following the occurrence of such Event of Default (as defined in the First
Lien Credit Agreement), (B) such failure relates to any other Event of
Default under the First Lien Credit Agreement which has not been cured or
waived within 45 days following the giving to Borrower of notice of such
Event of Default by the Administrative Agent (as defined in the First Lien
Credit Agreement) or (C) the Indebtedness under the First Lien Credit
Agreement has been accelerated;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of any Company, or of a substantial part of the property
of any Company, under Title 11 of the Code, as now constituted or
hereafter amended, or any other federal, state or foreign bankruptcy,
insolvency, receivership or similar law; (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for any Company or for a substantial part of the property of any
Company; or (iii) the winding-up or liquidation of any Company; and such
proceeding or petition shall continue undismissed for 60 days or an order
or decree approving or ordering any of the foregoing shall be entered;
(h) any Company shall (i) voluntarily commence any proceeding or
file any petition seeking relief under Title 11 of the United States Code,
as now constituted or hereafter amended, or any other federal, state or
foreign bankruptcy, insolvency, receivership or similar law; (ii) consent
to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or the filing of any petition described in clause
(g) above; (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for any
Company or for a substantial part of the property of any Company; (iv)
file an answer admitting the material allegations of a petition filed
against it in any such proceeding; (v) make a general assignment for the
benefit of creditors; (vi) become unable, admit in writing its inability
or fail generally to pay its debts as they become due; (vii) take any
action for the purpose of effecting any of the foregoing; or (viii) wind
up or liquidate;
(i) one or more judgments, orders or decrees for the payment of
money in an aggregate amount in excess of $3.5 million shall be rendered
against any Company or any combination thereof and the same shall remain
undischarged, unvacated or unbonded for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor to levy upon properties of
any Company to enforce any such judgment;
(j) one or more ERISA Events shall have occurred that, in the
opinion of the Required Lenders, when taken together with all other such
ERISA Events could reasonably be expected to result in a Material Adverse
Effect or the imposition of a Lien on any properties of a Company;
(k) any security interest and Lien purported to be created by any
Security Document shall cease to be in full force and effect, or shall
cease to give the Collateral Agent, for the benefit of the applicable
Secured Parties, the Liens, rights, powers and privileges purported to be
created and granted under such Security Documents (including a perfected
Second Priority security interest in and Lien on, all of the Collateral
thereunder (except as otherwise expressly provided in this Agreement or in
such Security Document)) in favor of the Collateral Agent, or shall be
asserted
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by Borrower or any other Loan Party not to be, a valid, perfected, Second
Priority (except as otherwise expressly provided in this Agreement or such
Security Document) security interest in or Lien on the Collateral covered
thereby;
(l) any Loan Document or any material provisions thereof shall at
any time and for any reason be declared by a court of competent
jurisdiction to be null and void (other than any such declaration
resulting solely from an amendment or modification of the Intercreditor
Agreement not consented to by Borrower), or a proceeding shall be
commenced by any Loan Party or any other person, or by any Governmental
Authority, seeking to establish the invalidity or unenforceability thereof
(exclusive of questions of interpretation of any provision thereof), or
any Loan Party shall repudiate or deny any portion of its liability or
obligation for the Obligations;
(m) there shall have occurred a Change in Control; or
(n) any Loan Party shall be prohibited or otherwise restrained from
conducting the business theretofore conducted by it in any manner that has
or could reasonably be expected to result in a Material Adverse Effect by
virtue of any determination, ruling, decision, decree or order of any
court or Governmental Authority of competent jurisdiction;
then, and in every such event (other than an event with respect to Holdings or
Borrower described in paragraph (g) or (h) above), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to Borrower, take either or
both of the following actions, at the same or different times: (i) terminate
forthwith the Commitments and (ii) declare the Loans then outstanding to be
forthwith due and payable in whole or in part, whereupon the principal of the
Loans so declared to be due and payable, together with accrued interest thereon
and any unpaid accrued Fees and all other liabilities of Borrower accrued
hereunder and under any other Loan Document, shall become forthwith due and
payable, without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived by Borrower and the Guarantors,
anything contained herein or in any other Loan Document to the contrary
notwithstanding; and in any event, with respect to Holdings or Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of
Borrower accrued hereunder and under any other Loan Document, shall
automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by
Borrower and the Guarantors, anything contained herein or in any other Loan
Document to the contrary notwithstanding.
ARTICLE IX
APPLICATION OF COLLATERAL PROCEEDS
SECTION 9.01 [INTENTIONALLY OMITTED].
SECTION 9.02 [INTENTIONALLY OMITTED].
SECTION 9.03 APPLICATION OF PROCEEDS. Subject to the terms of the
Intercreditor Agreement, the proceeds received by the Collateral Agent in
respect of any sale of, collection from or other realization upon all or any
part of the Collateral pursuant to the exercise by the Collateral Agent of its
remedies shall be applied, in full or in part, together with any other sums then
held by the Collateral Agent pursuant to this Agreement, promptly by the
Collateral Agent as follows:
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(a) First, to the payment of all reasonable costs and expenses,
fees, commissions and taxes of such sale, collection or other realization
including compensation to the Collateral Agent and its agents and counsel,
and all expenses, liabilities and advances made or incurred by the
Collateral Agent in connection therewith and all amounts for which the
Collateral Agent is entitled to indemnification pursuant to the provisions
of any Loan Document, together with interest on each such amount at the
highest rate then in effect under this Agreement from and after the date
such amount is due, owing or unpaid until paid in full;
(b) Second, to the payment of all other reasonable costs and
expenses of such sale, collection or other realization including
compensation to the other Secured Parties and their agents and counsel and
all costs, liabilities and advances made or incurred by the other Secured
Parties in connection therewith, together with interest on each such
amount at the highest rate then in effect under this Agreement from and
after the date such amount is due, owing or unpaid until paid in full;
(c) Third, without duplication of amounts applied pursuant to
clauses (a) and (b) above, to the indefeasible payment in full in cash,
pro rata, of interest and other amounts constituting Obligations (other
than principal) in each case equally and ratably in accordance with the
respective amounts thereof then due and owing;
(d) Fourth, to the indefeasible payment in full in cash, pro rata,
of principal amount of the Obligations; and
(e) Fifth, the balance, if any, to the person lawfully entitled
thereto (including the applicable Loan Party or its successors or assigns)
or as a court of competent jurisdiction may direct.
In the event that any such proceeds are insufficient to pay in full
the items described in clauses (a) through (e) of this Section 9.03, the
Loan Parties shall remain liable, jointly and severally, for any
deficiency.
Each Loan Party acknowledges the relative rights, priorities and
agreements of the Secured Parties and the First Lien Secured Parties, as
set forth in this Agreement and the Intercreditor Agreement, including as
set forth in this Section 9.03.
ARTICLE X
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
SECTION 10.01 APPOINTMENT. Each Lender hereby irrevocably designates
and appoints the Administrative Agent as an agent of such Lender under this
Agreement and the other Loan Documents. Each Lender (in its capacity as such)
hereby irrevocably designates and appoints the Collateral Agent as an agent of
such person under this Agreement. Each Lender irrevocably authorizes each Agent,
in such capacity, through its agents or employees, to take such actions on its
behalf under the provisions of this Agreement and the other Loan Documents and
to exercise such powers and perform such duties as are expressly delegated to
such Agent by the terms of this Agreement and the other Loan Documents, together
with such actions and powers as are reasonably incidental thereto.
Notwithstanding anything herein to the contrary, each Lender also acknowledges
that the Lien and security interest granted to the Collateral Agent pursuant to
the Security Documents and the exercise of any right or remedy by the Collateral
Agent thereunder are subject to the provisions of the Intercreditor Agreement.
In the event of
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any conflict between the terms of the Intercreditor Agreement and the Security
Documents, the terms of the Intercreditor Agreement shall govern and control.
SECTION 10.02 AGENT IN ITS INDIVIDUAL CAPACITY. Each person serving
as an Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not an
Agent, and such person and its Affiliates may accept deposits from, lend money
to and generally engage in any kind of business with Borrower or any Subsidiary
or other Affiliate thereof as if it were not an Agent hereunder.
SECTION 10.03 EXCULPATORY PROVISIONS. No Agent shall have any duties
or obligations except those expressly set forth in the Loan Documents. Without
limiting the generality of the foregoing, (a) no Agent shall be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred
and is continuing, (b) no Agent shall have any duty to take any discretionary
action or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated by the Loan Documents that such Agent is required
to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 11.02), and (c) except as expressly set forth in the Loan
Documents, no Agent shall have any duty to disclose or shall be liable for the
failure to disclose, any information relating to Borrower or any of its
Subsidiaries that is communicated to or obtained by the bank serving as such
Agent or any of its Affiliates in any capacity. No Agent shall be liable for any
action taken or not taken by it with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 11.02) or in the
absence of its own gross negligence or willful misconduct. No Agent shall be
deemed to have knowledge of any Default unless and until written notice thereof
is given to such Agent by Borrower or a Lender, and no Agent shall be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any Loan Document, (ii)
the contents of any certificate, report or other document delivered thereunder
or in connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan
Document.
SECTION 10.04 RELIANCE BY AGENT. Each Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed or sent by a proper person.
Each Agent also may rely upon any statement made to it orally and believed by it
to be made by a proper person, and shall not incur any liability for relying
thereon. Each Agent may consult with legal counsel (who may be counsel for
Borrower), independent accountants and other advisors selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or advisors.
SECTION 10.05 DELEGATION OF DUTIES. Each Agent may perform any and
all its duties and exercise its rights and powers by or through any one or more
sub-agents appointed by such Agent. Each Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through their
respective Affiliates. The exculpatory provisions of the preceding paragraphs
shall apply to any such sub-agent and to the Affiliates of each Agent and any
such sub-agent, and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well as
activities as Agent.
SECTION 10.06 SUCCESSOR AGENT. Each Agent may resign as such at any
time upon at least 30 days' prior notice to the Lenders and Borrower. Upon any
such resignation, the Required
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Lenders shall have the right, in consultation with Borrower, to appoint a
successor Agent from among the Lenders. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation, then
the retiring Agent may, on behalf of the Lenders, appoint a successor Agent,
which successor shall be a commercial banking institution organized under the
laws of the United States (or any State thereof) or a United States branch or
agency of a commercial banking institution or a non-bank financial institution,
in each case, having combined capital and surplus of at least $250 million;
provided that if such retiring Agent is unable to find a commercial banking
institution or a non-bank financial institution which is willing to accept such
appointment and which meets the qualifications set forth above, the retiring
Agent's resignation shall nevertheless thereupon become effective, and the
Lenders shall assume and perform all of the duties of the Agent hereunder until
such time, if any, as the Required Lenders appoint a successor Agent. During the
continuance of an Event of Default, if the Administrative Agent and/or the
Collateral Agent is instructed in writing by the Required Lenders to resign from
its capacity as such, such Agent shall promptly give notice of its resignation
and resign in accordance with the provisions of this Section 10.06.
Upon the acceptance of its appointment as an Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by Borrower to a successor Agent shall be the same as those payable to
its predecessor unless otherwise agreed between Borrower and such successor.
After an Agent's resignation hereunder, the provisions of this Article X and
Section 11.03 shall continue in effect for the benefit of such retiring Agent,
its sub-agents and their respective Affiliates in respect of any actions taken
or omitted to be taken by any of them while it was acting as Agent.
SECTION 10.07 NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender
acknowledges that it has, independently and without reliance upon any Agent or
any other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon any Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished hereunder
or thereunder.
SECTION 10.08 NAME AGENTS. The parties hereto acknowledge that the
Bookmanager, Co-Documentation Agents and the Syndication Agent hold such titles
in name only, and that such titles confer no additional rights or obligations
relative to those conferred on any Lender hereunder.
SECTION 10.09 INDEMNIFICATION. The Lenders severally agree to
indemnify each Agent in its capacity as such (to the extent not reimbursed by
Borrower or the Guarantors and without limiting the obligation of Borrower or
the Guarantors to do so), ratably according to their respective outstanding
Loans and Commitments in effect on the date on which indemnification is sought
under this Section 10.09 (or, if indemnification is sought after the date upon
which all Commitments shall have terminated and the Loans shall have been paid
in full, ratably in accordance with such outstanding Loans and Commitments as in
effect immediately prior to such date), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever that may at any time
(whether before or after the payment of the Loans) be imposed on, incurred by or
asserted against such Agent in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment
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of any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements that are found by a
final and nonappealable decision of a court of competent jurisdiction to have
resulted from such Agent's gross negligence or willful misconduct. The
agreements in this Section shall survive the payment of the Loans and all other
amounts payable hereunder.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 NOTICES.
(a) Generally. Except as provided in paragraph (b) below, notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(i) if to any Loan Party, to Borrower at:
JLL Partners
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇;
(ii) if to PGT Industries, Inc., to it at:
PGT Industries, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) if to the Administrative Agent or the Collateral Agent, to it
at:
UBS AG, Stamford Branch
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇;
(iv) if to a Lender, to it at its address (or telecopy number) set
forth on the applicable Lender Addendum or in the Assignment and
Acceptance pursuant to which such Lender shall have become a party hereto;
and
(v) if to the General Electric Capital Corporation, as
Co-Documentation Agent,
GE Corporate Financial Services
Global Sponsor Finance
▇▇▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇.
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All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or by certified or registered mail, in each case delivered, sent or
mailed (properly addressed) to such party as provided in this Section 11.01 or
in accordance with the latest unrevoked direction from such party given in
accordance with this Section 11.01, and failure to deliver courtesy copies of
notices and other communications shall in no event affect the validity or
effectiveness of such notices and other communications.
(b) Electronic Communications. Notices and other communications to
the Lenders hereunder may (subject to Section 10.01(d)) be delivered or
furnished by electronic communication (including e-mail and Internet or intranet
websites) pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices to any Lender pursuant to Article
II if such Lender, as applicable, has notified the Administrative Agent that it
is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent, the Collateral Agent or Borrower may,
in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it
(including as set forth in Section 10.01(d)); provided that approval of such
procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices
and other communications sent to an e-mail address shall be deemed received upon
the sender's receipt of an acknowledgement from the intended recipient (such as
by the "return receipt requested" function, as available, return e-mail or other
written acknowledgement in each case, to be made promptly by the recipient
thereof); provided that if such notice or other communication is not sent during
the normal business hours of the recipient, such notice or communication shall
be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or
intranet website shall be deemed received upon the deemed receipt by the
intended recipient at its e-mail address as described in the foregoing clause
(i) of notification that such notice or communication is available and
identifying the website address therefor.
(c) Change of Address, etc. Any party hereto may change its address
or telecopier number for notices and other communications hereunder by notice to
the other parties hereto.
(d) Posting. Each Loan Party hereby agrees that it will provide to
the Administrative Agent all information, documents and other materials that it
is obligated to furnish to the Administrative Agent pursuant to this Agreement
and any other Loan Document, including all notices, requests, financial
statements, financial and other reports, certificates and other information
materials, but excluding any such communication that (i) relates to a request
for a new, or a conversion of an existing, Borrowing or other extension of
credit (including any election of an interest rate or interest period relating
thereto), (ii) relates to the payment of any principal or other amount due under
this Agreement prior to the scheduled date therefor, (iii) provides notice of
any Default under this Agreement or (iv) is required to be delivered to satisfy
any condition precedent to the effectiveness of this Agreement and/or any
borrowing or other extension of credit hereunder (all such non-excluded
communications, collectively, the "COMMUNICATIONS"), by transmitting the
Communications in an electronic/soft medium in a format reasonably acceptable to
the Administrative Agent at ▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇.▇▇▇ or at such other e-mail
address(es) provided to Borrower from time to time or in such other form,
including hard copy delivery thereof, as the Administrative Agent shall require.
In addition, each Loan Party agrees to continue to provide the Communications to
the Administrative Agent in the manner specified in this Agreement or any other
Loan Document or in such other form, including hard copy delivery thereof, as
the Administrative Agent shall reasonably require. Nothing in this Section 10.01
shall prejudice the right of the Agents, any Lender or any Loan Party to give
any notice or other communication pursuant to this Agreement or any other Loan
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Document in any other manner specified in this Agreement or any other Loan
Document or as any such Agent shall reasonably require.
Unless otherwise advised by the Administrative Agent in writing, the
Administrative Agent agrees that receipt of the Communications by the
Administrative Agent at its e-mail address(es) set forth above shall constitute
effective delivery of the Communications to the Administrative Agent for
purposes of the Loan Documents; provided that Borrower shall also deliver to the
Administrative Agent an executed original of each Compliance Certificate
required to be delivered hereunder.
Each Loan Party further agrees that Administrative Agent may make
the Communications available to the Lenders by posting the Communications on
Intralinks or a substantially similar electronic transmission system (the
"PLATFORM"). The Platform is provided "as is" and "as available." The Agents do
not warrant the accuracy or completeness of the Communications, or the adequacy
of the Platform and expressly disclaim liability for errors or omissions in the
Communications. No warranty of any kind, express, implied or statutory,
including, without limitation, any warranty of merchantability, fitness for a
particular purpose, non-infringement of third party rights or freedom from
viruses or other code defects, is made by any Agent in connection with the
Communications or the Platform. In no event shall the Administrative Agent or
any of its Affiliates have any liability to the Loan Parties, any Lender or any
other person for damages of any kind, including direct or indirect, special,
incidental or consequential damages, losses or expenses (whether in tort,
contract or otherwise) arising out of any Loan Party's or the Administrative
Agent's transmission of communications through the Internet, except to the
extent the liability of such person is found in a final non-appealable judgment
by a court of competent jurisdiction to have resulted from such person's gross
negligence or willful misconduct.
SECTION 11.02 WAIVERS; AMENDMENT.
(a) No failure or delay by any Agent or any Lender in exercising any
right or power hereunder or under any other Loan Document shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of each Agent and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of any Loan Document or consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether any Agent, any
Lender may have had notice or knowledge of such Default at the time.
(b) Subject to the terms of the Intercreditor Agreement and
paragraphs (c) and (d) below, neither this Agreement nor any other Loan Document
nor any provision hereof or thereof may be waived, amended, supplemented or
modified except, in the case of this Agreement, pursuant to an agreement or
agreements in writing entered into by Borrower and the Required Lenders or, in
the case of any other Loan Document, pursuant to an agreement or agreements in
writing entered into by the Administrative Agent (which it shall do if so
instructed by the Borrower and the Required Lenders), the Collateral Agent (in
the case of any Security Document (which it shall do if so instructed by the
Borrower and the Required Lenders)) and the Loan Party or Loan Parties that are
parties thereto, in each case with the written consent of the Required Lenders;
provided that no such agreement shall:
(i) increase the Commitment of any Lender without the written
consent of such Lender;
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(ii) reduce the principal amount or premium of any Loan or reduce
the rate of interest thereon, or reduce any Fees payable hereunder, or
change the currency of payment of any Obligation, without the written
consent of each Lender affected thereby;
(iii) postpone or extend the maturity of any Loan, or any date for
the payment of any interest or fees payable hereunder, or reduce the
amount of, waive or excuse any such payment, without the written consent
of each Lender affected thereby;
(iv) change Section 2.14(b) or (c) in a manner that would alter the
pro rata sharing of payments or setoffs required thereby, without the
written consent of each Lender;
(v) change the percentage set forth in the definition of "Required
Lenders" or any other provision of any Loan Document (including this
Section) specifying the number or percentage of Lenders (or Lenders of any
Class) required to waive, amend or modify any rights thereunder or make
any determination or grant any consent thereunder, without the written
consent of each Lender (or each Lender of such Class, as the case may be);
(vi) except as required by the Intercreditor Agreement, release any
Guarantor from its Guarantee (except as expressly provided in Article
VII), or limit its liability in respect of such Guarantee, without the
written consent of each Lender;
(vii) except as required by the Intercreditor Agreement, release all
or a substantial portion of the Collateral from the Liens of the Security
Documents or alter the relative priorities of the Obligations entitled to
the Liens of the Security Documents (except in connection with securing
additional Obligations equally and ratably with the other Obligations), or
alter the order of the application of proceeds from the sale of collateral
as set forth in Section 9.03 hereof, in each case without the written
consent of each Lender; or
(viii) modify any of the rights, obligations or privileges of any
Agent hereto (other than to cause such Agent to resign in accordance with
Section 10.06 hereof) without the consent of such Agent;
provided, further, that (1) no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent or the Collateral Agent
without the prior written consent of the Administrative Agent or the Collateral
Agent, as the case may be, (2) any waiver, amendment or modification prior to
the achievement of a Successful Syndication may not be effected without the
written consent of the Arranger and (3) any waiver, amendment or modification of
the Intercreditor Agreement (and any related definitions) may be effected by an
agreement or agreements in writing entered into among the Collateral Agent, the
Administrative Agent and the Required Lenders (without the consent of any Loan
Party, so long as such amendment, waiver or modification does not impose any
additional duties or obligations on the Loan Parties or alter or impair any
right of any Loan Party under the Loan Documents). Notwithstanding the
foregoing, any provision of this Agreement may be amended by an agreement in
writing entered into by Borrower, the Required Lenders and the Administrative
Agent if (x) by the terms of such agreement the Commitment of each Lender not
consenting to the amendment provided for therein shall terminate upon the
effectiveness of such amendment and (y) at the time such amendment becomes
effective, each Lender not consenting thereto receives payment in full of the
principal of, premium, if any, and interest accrued on each Loan made by it and
all other amounts owing to it or accrued for its account under this Agreement.
(c) If, in connection with any proposed change, waiver, discharge or
termination of the provisions of this Agreement as contemplated by Sec-
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tion 11.02(b) (other than clause (iii) of such Section), the consent of the
Supermajority Lenders is obtained but the consent of one or more of such other
Lenders whose consent is required is not obtained, then Borrower shall have the
right to replace all, but not less than all, of such non-consenting Lender or
Lenders (so long as all non-consenting Lenders are so replaced) with one or more
persons pursuant to Section 2.16 so long as at the time of such replacement each
such new Lender consents to the proposed change, waiver, discharge or
termination; provided, however, that Borrower shall not have the right to
replace a Lender solely as a result of the exercise of such Lender's rights (and
the withholding of any required consent by such Lender) pursuant to clause (iii)
of Section 11.02(b).
SECTION 11.03 EXPENSES; INDEMNITY.
(a) The Loan Parties agree, jointly and severally, to pay, promptly
upon demand:
(i) all reasonable costs and expenses incurred by the Arranger, the
Administrative Agent and the Collateral Agent, including the reasonable
fees, charges and disbursements of Advisors for the Arranger, the
Administrative Agent and the Collateral Agent, in connection with the
syndication of the Loans and Commitments, the preparation, execution and
delivery of the Loan Documents, the administration of the Loans and
Commitments, the perfection and maintenance of the Liens securing the
Collateral and any actual or proposed amendment, supplement or waiver of
any of the Loan Documents (whether or not the transactions contemplated
hereby or thereby shall be consummated);
(ii) all costs and expenses incurred by the Administrative Agent or
the Collateral Agent, including the fees, charges and disbursements of
Advisors for the Administrative Agent and the Collateral Agent, in
connection with any action, suit or other proceeding affecting the
Collateral or any part thereof, in which action, suit or proceeding the
Administrative Agent or the Collateral Agent is made a party or
participates or in which the right to use the Collateral or any part
thereof is threatened, or in which it becomes necessary in the judgment of
the Administrative Agent or the Collateral Agent to defend or uphold the
Liens granted by the Security Documents (including any action, suit or
proceeding to establish or uphold the compliance of the Collateral with
any Requirements of Law);
(iii) all costs and expenses incurred by the Arranger, the
Administrative Agent, the Collateral Agent or any Lender, including the
fees, charges and disbursements of Advisors for the Arranger, the
Administrative Agent, the Collateral Agent or any Lender, incurred in
connection with the enforcement or protection of its rights under the Loan
Documents, including its rights under this Section 11.03(a), or in
connection with the Loans made hereunder and the collection of the
Obligations, including all such costs and expenses incurred during any
workout, restructuring or negotiations in respect of the Obligations; and
(iv) all documentary and similar taxes and charges in respect of the
Loan Documents.
For purposes of this Section 11.03(a), "ADVISORS" shall mean legal counsel
(including local counsel), auditors, accountants, consultants, appraisers or
other advisors; provided that (x) in the case of clause (i), the engagement of
any Advisors other than legal counsel (including local counsel) shall be subject
to approval by Borrower (which approval shall not be unreasonably withheld) and
(y) in the case of clause (iii), the engagement of any Advisors other than one
firm of legal counsel by any Lender shall be subject to approval by the
Administrative Agent.
(b) The Loan Parties agree, jointly and severally, to indemnify the
Agents and each Lender, each Affiliate of any of the foregoing persons and each
of their respective partners, controlling
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persons, directors, officers, trustees, employees and agents (each such person
being called an "INDEMNITEE") against, and to hold each Indemnitee harmless
from, all reasonable out-of-pocket costs and any and all losses, claims,
damages, liabilities, penalties, judgments, suits and related expenses,
including reasonable counsel fees, charges and disbursements, incurred by or
asserted against any Indemnitee arising out of, in any way connected with, or as
a result of (i) the execution, delivery, performance, administration or
enforcement of the Loan Documents, (ii) any actual or proposed use of the
proceeds of the Loans, (iii) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether or not any Indemnitee is a party
thereto, or (iv) any actual or alleged presence or Release or threatened Release
of Hazardous Materials, on, at, under or from any property owned, leased or
operated by any Company at any time, or any Environmental Claim related in any
way to any Company; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted solely from
the gross negligence or willful misconduct of such Indemnitee.
(c) The provisions of this Section 11.03 shall remain operative and
in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of the Loans, the release of all or any portion of the Collateral, the
expiration of the Commitments, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Agents or any Lender. All amounts due under this
Section 11.03 shall be payable on written demand therefor accompanied by
reasonable documentation with respect to any reimbursement, indemnification or
other amount requested.
(d) To the extent that Borrower fails to promptly pay any amount
required to be paid by it to the Agents under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Agents, such Lender's pro
rata share (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against any of the
Agents, in its capacity as such. For purposes hereof, a Lender's "pro rata
share" shall be determined based upon its share of the sum of the outstanding
Loans and unused Commitments at the time.
SECTION 11.04 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that Borrower may not assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent of the
Administrative Agent, the Collateral Agent and each Lender (and any attempted
assignment or transfer by Borrower without such consent shall be null and void).
Nothing in this Agreement, express 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
other Indemnitees) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Any Lender shall have the right at any time to assign to one or
more banks, insurance companies, investment companies or funds or other
institutions (other than Borrower, Holdings or any Affiliate or Subsidiary
thereof) all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to
it); provided that (i) except in the case of an assignment to (I) a Lender, an
Affiliate of a Lender or a Related Fund or (II) a Lender, an Affiliate of a
Lender or a Related Fund (each capitalized term used in this clause (II), as
defined in the First Lien Credit Agreement), each of the Administrative Agent
and, after the achievement of
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a Successful Syndication, Borrower must give its prior written consent to such
assignment (which consent shall not be unreasonably withheld or delayed), (ii)
except in the case of an assignment to a Lender, an Affiliate of a Lender or a
Related Fund, any assignment made in connection with the primary syndication of
the Commitment and Loans by the Arranger or an assignment of the entire
remaining amount of the assigning Lender's Commitment or Loans, the amount of
the Commitment or Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not be less than $1.0
million, unless each of Borrower and the Administrative Agent otherwise consent,
(iii) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender's rights and obligations under this Agreement,
except that this clause (iii) shall not be construed to prohibit the assignment
of a proportionate part of all the assigning Lender's rights and obligations in
respect of one Class of Commitments or Loans, (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of $3,500, and
(v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and provided, further,
that any consent of Borrower otherwise required under this paragraph shall not
be required if a Default has occurred and is continuing; and provided, further,
that, after the achievement of a Successful Syndication, the Administrative
Agent may deny or delay its consent to an assignment only to the extent
necessary or advisable for compliance with legal, regulatory or record keeping
requirements. Subject to acceptance and recording thereof pursuant to paragraph
(d) of this Section, from and after the effective date specified in each
Assignment and Acceptance the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Acceptance, have
the rights and obligations of a Lender under this Agreement (provided that any
liability of Borrower to such assignee under Section 2.12, 2.13 or 2.15 shall be
limited to the amount, if any, that would have been payable thereunder by
Borrower in the absence of such assignment, except to the extent any such
amounts are attributable to a Change in Law occurring after the date of such
assignment), and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.12, 2.13, 2.15 and 11.03).
(c) The Administrative Agent, acting for this purpose as an agent of
Borrower, shall maintain at one of its offices a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and principal amount of the
Loans (and interest thereon) owing to, each Lender pursuant to the terms hereof
from time to time (the "REGISTER"). The entries in the Register shall be
conclusive in the absence of manifest error, and Borrower, the Administrative
Agent and the Lenders shall treat each person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by Borrower, the Collateral Agent and any Lender (with
respect to its own interest only), at any reasonable time and from time to time
upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
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(e) Any Lender shall have the right at any time, without the consent
of Borrower or the Administrative Agent to sell participations to one or more
banks, investment funds or other entities (a "PARTICIPANT") in all or a portion
of such Lender's rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) Borrower, the Administrative Agent and
the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. 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 the Loan
Documents and to approve any amendment, modification or waiver of any provision
of the Loan Documents; provided that such agreement or instrument may provide
that such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in clause (i), (ii) or (iii) of the
first proviso to Section 11.02(b) that affects such Participant. Subject to
paragraph (f) of this Section, Borrower agrees that each Participant shall be
entitled to the benefits of Sections 2.12, 2.13 and 2.15 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 11.08 as though it were a
Lender; provided that such Participant agrees in writing to be subject to
Section 2.14(c) as though it were a Lender. Each Lender shall, acting for this
purpose as an agent of Borrower, maintain at one of its offices a register for
the recordation of the names and addresses of its Participants, and the amount
and terms of its participations; provided that no Lender shall be required to
disclose or share the information contained in such register with Borrower or
any other party, except as required by applicable law.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.12, 2.13 or 2.15 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 prior written consent of Borrower. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 2.15 unless Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of Borrower, to comply
with Sections 2.15(e) and (f) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto. In
the case of any Lender that is a fund that invests in bank loans, such Lender
may, without the consent of Borrower or the Administrative Agent, collaterally
assign or pledge all or any portion of its rights under this Agreement,
including the Loans and Notes or any other instrument evidencing its rights as a
Lender under this Agreement, to any holder of, trustee for, or any other
representative of holders of, obligations owed or securities issued, by such
fund, as security for such obligations or securities.
SECTION 11.05 SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by the Loan Parties in the Loan Documents
and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the other parties hereto and shall survive the
execution and delivery of the Loan Documents and the making of any Loans,
regardless of any investigation made by any such other party or on its behalf
and notwithstanding that the Agents or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended
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hereunder, and shall continue in full force and effect as long as the principal
of or any accrued interest on any Loan or any fee or any other amount payable
under this Agreement is outstanding and unpaid and so long as the Commitments
have not expired or terminated. The provisions of Sections 2.12, 2.14, 2.15 and
11.03 and Article X shall survive and remain in full force and effect regardless
of the consummation of the transactions contemplated hereby, the repayment of
the Loans, the expiration or termination of the Commitments or the termination
of this Agreement or any provision hereof.
SECTION 11.06 COUNTERPARTS; INTEGRATION; EFFECTIVENESS; ELECTRONIC
EXECUTION OF ASSIGNMENTS. This Agreement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Agreement, the other Loan Documents, and the Fee Letter
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. This Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
The words "execution," "signed," "signature," and words of like
import in any Assignment and Acceptance shall be deemed to include electronic
signatures or the keeping of records in electronic form, each of which shall be
of the same legal effect, validity or enforceability as a manually executed
signature or the use of a paper-based recordkeeping system, as the case may be,
to the extent and as provided for in any applicable Requirement of Law,
including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar
state laws based on the Uniform Electronic Transactions Act.
SECTION 11.07 SEVERABILITY. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 11.08 RIGHT OF SETOFF. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates are hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of
Borrower against any and all of the obligations of Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 11.09 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS.
(a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York, without regard to conflicts of law
principles that would require the application of the laws of another
jurisdiction.
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(b) Each Loan Party hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to any Loan Document, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that
the Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against any
Loan Party or its properties in the courts of any jurisdiction.
(c) Each Loan Party hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any other Loan
Document in any court referred to in Section 11.09(b). Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in any action or proceeding arising out of or relating to any Loan
Document, in the manner provided for notices (other than telecopy) in Section
11.01. Nothing in this Agreement or any other Loan Document will affect the
right of any party to this Agreement to serve process in any other manner
permitted by applicable law.
SECTION 11.10 WAIVER OF JURY TRIAL. Each Loan Party hereby waives,
to the fullest extent permitted by applicable law, any right it may have to a
trial by jury in any legal proceeding directly or indirectly arising out of or
relating to this Agreement, any other Loan Document or the transactions
contemplated hereby (whether based on contract, tort or any other theory). Each
party hereto (a) certifies that no representative, agent or attorney of any
other party has represented, expressly or otherwise, that such other party would
not, in the event of litigation, seek to enforce the foregoing waiver and (b)
acknowledges that it and the other parties hereto have been induced to enter
into this Agreement by, among other things, the mutual waivers and
certifications in this Section.
SECTION 11.11 HEADINGS. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 11.12 CONFIDENTIALITY. Each of the Administrative Agent and
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' and Related Funds' directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential pursuant to the terms hereof), (b) to the extent requested by any
regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this Section
11.12, to (i) any assignee of or Participant in, or any prospective
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assignee of or Participant in, any of its rights or obligations under this
Agreement, (ii) any actual or prospective counterparty (or its advisors) to any
swap or derivative transaction relating to Borrower and its obligations or (iii)
any rating agency for the purpose of obtaining a credit rating applicable to any
Loan or Loan Party, (g) with the consent of Borrower or (h) to the extent such
Information (i) is publicly available at the time of disclosure or becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Administrative Agent or any Lender on a nonconfidential
basis from a source other than Borrower or any Subsidiary. For the purposes of
this Section, "INFORMATION" means all information received from Borrower or any
Subsidiary relating to Borrower or any Subsidiary or its business that is
clearly identified at the time of delivery as confidential, other than any such
information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by Borrower or any Subsidiary. Any
person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such person has exercised the same degree of care to maintain the
confidentiality of such Information as such person would accord to its own
confidential information.
SECTION 11.13 INTEREST RATE LIMITATION. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively, the "CHARGES"), shall exceed
the maximum lawful rate (the "MAXIMUM RATE") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date
of repayment, shall have been received by such Lender.
SECTION 11.14 LENDER ADDENDUM. Each Lender to become a party to this
Agreement on the date hereof shall do so by delivering to the Administrative
Agent a Lender Addendum duly executed by such Lender, Borrower and the
Administrative Agent.
SECTION 11.15 OBLIGATIONS ABSOLUTE. To the fullest extent permitted
by applicable law, all obligations of the Loan Parties hereunder shall be
absolute and unconditional irrespective of:
(a) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of any Loan Party;
(b) any lack of validity or enforceability of any Loan Document or
any other agreement or instrument relating thereto against any Loan Party;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to any departure from any Loan Document or any
other agreement or instrument relating thereto;
(d) any exchange, release or non-perfection of any other Collateral,
or any release or amendment or waiver of or consent to any departure from
any guarantee, for all or any of the Obligations;
(e) any exercise or non-exercise, or any waiver of any right,
remedy, power or privilege under or in respect hereof or any Loan
Document; or
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(f) any other circumstances which might otherwise constitute a
defense available to, or a discharge of, the Loan Parties.
SECTION 11.16 USA PATRIOT ACT NOTICE. Each Lender that is subject to
the Act (as hereinafter defined) and the Administrative Agent (for itself and
not on behalf of any Lender) hereby notifies Borrower that pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "ACT"), it is required to obtain, verify and record
information that identifies Borrower, which information includes the name,
address and tax identification number of Borrower and other information
regarding Borrower that will allow such Lender or the Administrative Agent, as
applicable, to identify Borrower in accordance with the Act. This notice is
given in accordance with the requirements of the Act and is effective as to the
Lenders and the Administrative Agent.
ARTICLE XII
[INTENTIONALLY OMITTED]
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
PGT INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
and Treasurer
JLL WINDOW HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
and Treasurer
S-1
UBS AG, STAMFORD BRANCH, as Administrative
Agent
By: /s/ ▇▇▇▇▇▇ Oh
-----------------------------------------
Name: ▇▇▇▇▇▇ Oh
Title: Associate Director,
Banking Products Services, US
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director,
Banking Products Services, US
S-2
UBS AG, STAMFORD BRANCH, as Collateral Agent
By: /s/ ▇▇▇▇▇▇ Oh
-----------------------------------------
Name: ▇▇▇▇▇▇ Oh
Title: Associate Director,
Banking Products Services, US
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director,
Banking Products Services, US
S-3